On Copying, Attribution, and Value
On Copying, Attribution, and Value
On Copying, Attribution, and Value

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    I just wanted to make a quick note of a piece by Danny O'Brien (found via boingboing), which, among other things, notes that artists' interests in copyright are frequently more nuanced than the law—for instance, in a lot of circumstances, attribution is more important than remuneration:

    One behaviour I see a lot is a general tolerance towards copying, mixed with an absolute moral fury at passing-off. The fact that both activities are seen as straightforward violations of IP law both by the general public and by the legal system I think is confusing for everybody.
    Let me give an example. I have a friend who is a reasonably successful DJ. Her continuing success comes from the distribution of her mixes, which she lets be passed around online and off. She'll regularly get gigs from people who've heard her tracks, and want her to perform at their event.
    A few years ago, she discovered that a Spanish DJ was using her mixes to promote his own career, passing them off as his own. Naturally, my friend was furious, and railed against pirates and all those Internet scum who shamelessly copy her tracks. I pointed out that she had actually encouraged them to do that, that it seemed to be an important part of her marketing, and, anyway, there was a good chance that her entire body of work would be impossible had the artists she worked with demanded the same controls as she was now envisaging.

    To this, I just wanted to add a quick observation—under the copyright statutes, passing something off as your own is subject to the same range of penalties as a properly attributed, but intentional, copying. The Spanish DJ, passing off the tracks as his own, is doing something recognizably different from, say, a user who might post the tracks, properly named and attributed, to his site as a way of indicating the types of music he likes. Yet absent the original artist using a Creative Commons license or something similar, both actions would be considered infringement.

    The vast gap between a blatantly reprehensible act of passing-off and an honest mistake of what is legal under copyright law is something we can intuit, but that isn't really reflected in the Copyright Act. Sure, by the time a dispute gets to court, a judge or jury can take mitigating factors into account, but for either type of willful infringement, the penalties are still going to be in the range of $750 to $150,000 per infringed work. By contrast, there's one specific section of the Copyright Act that deals with attribution, and that's a narrow provision only available to certain visual artists. So if these aspects of creative work are valued so differently, why are they treated alike by the statute?

    It might be easy to point at the idea that the US, unlike some other countries, has based its copyrights system on an economic basis—promoting progress of science and the useful arts—instead of creating a moral basis for copyright. But I don't think that that's necessarily a barrier to recognizing the difference in magnitude of economic harm wrought by passing off versus properly-attributed, unauthorized copying. After all, the actual damages of the latter are probably equivalent to the price of a copy sold on the market—for a song, about a dollar. For a misattribution, you could calculate a larger amount of damage from loss of publicity—and one that can take its toll over a lengthy period of time. Of course, these differences in actual damages can be dwarfed by a claim for statutory damages, so their effects under the current system might be too easily ignored.

    The main point of Danny's post, though, is the fact that since copying is part of the digital nature, making the act of copying the determining factor in questions of infringement is far more arbitrary than it used to be.

    I think that's true, but it's important to note that “copying” isn't the only right so singled out by copyright law—it's merely one of six particular rights specified in Section 106 that can attach to a given copyrighted work. For example, the creator of a photograph not only is the only person who can authorize its reproduction—she's the only person who can authorize its display, adaptation, or distribution. Danny's DJ friend, as the author of a track, not only has the legal right to stop any copying of that track, but also any public performance of it, even if that performance is made from an authorized copy. (Obviously, this right, like any other is subject to a whole wad of limitations and exceptions, but we need not deal with those now.)

    The reason I want to highlight these other rights is that “copying” isn't the only thing that becomes an increasingly poor proxy for a right to remuneration or consideration for creating a work. Each of the separate rights outlined in section 106 is similarly arbitrary, as are the lines drawn between them—for instance, why on earth is there a separate right only for sound recordings covering only digital audio transmissions?

    The way that these rights are laid out and delineated reflects a system that made more sense before digital technology could (and in fact had to) simultaneously copy and distribute a work in order to display it. These increasingly problematic categories are exactly what creates some of the controversies found in cases like Cablevision (on which I have, and will continue to, harp).