Copyright, Music Lyrics, and Neil Diamond

Last week, Warner/Chappell apparently sent a cease & desist letter to a firm whose software helps users find and use song lyrics. That letter has touched off a flurry of discussion in academic circles about how copyright law should treat song lyrics. It seems that almost everyone agrees that I can listen to my favorite Neil Diamond song and write down the lyrics for my own enjoyment. Reasonable minds disagree, however, over how much outsiders can help me, for instance by running a website that lists song lyrics or providing a tool that helps me find song lyrics online.

I think the merits here are tricky, but the battle provides an opportunity to sharpen a point often missed in discussions of fair use: a use might be fair when inefficient and awkward, but not fair at all when efficient, large-scale and streamlined.

An example: photocopying.

In many instances, I, as a teacher, can make occasional photocopies of materials relevant to my teaching, and I can also encourage my students to make such copies in support of their learning. As the Sixth Circuit made clear in Michigan Document Services, however, if I were to bring Kinko’s into the mix and ask that very efficient maker of copies to do the copying for my class, what was once a fair use very likely becomes infringement.

Why punish efficiency? When we say something is fair use we have a built-in sense of (a) how widespread the practice will be and (b) how hard it would be to do it under a permission-based system. Introduce an efficient player like Kinko’s into the mix, and all of a sudden those two factors might radically change. Our guess about the extent of the practice goes out the window, and the fact that Kinko’s exists might be new evidence that a permission-based system can in fact work. To put the latter point differently, Kinko’s is efficient in many dimensions: it does the job cheap, and it is also a cheap way to collect and distribute royalty payments.

Lastly, note that in all these examples the fact that the inefficient use remains “fair” matters tremendously, in that it provides a safety valve against unreasonable copyright holders. If textbook publishers charge too high a royalty to Kinkos, my students and I can always fall back on our fair use right to copy without Kinko’s help. That constrains copyright holders from wielding too much power; or, phrased another way, it allows the “fair use” doctrine to subsidize these uses even while at the same time not protecting them.

Comments

[D Conrad]

Isn't this a claim that fair use is an economic device used to get around exorbitant transaction costs? In other words, a fair use is uncompensated only because it would be too difficult for every instructor to call up a publisher and send them a royalty payment?

I don't think it is punishing efficiency so much as it is promoting royalities when transaction costs are low enough to be efficient.

There's an underlying assumption, though, that fair use is an economic device, and that the goal of copyright is to provide compensation for any use of a property.

dc

[Doug Lichtman]

I don't think the claim is that narrow. For instance, suppose that we initially treat a use as fair because we think it won't hurt the copyight holder much. When the use becomes more efficient -- that is, more widespread -- the calculus might change. Similarly, suppose that we initially treat a use as fair because we want to subsidize the use. As I point out, treating the more efficient use as "unfair" might still leave that subsidy intact. So, no, I don't think the point here is just the familiar transaction costs point.

[Ross]

Doesn't it chill innovation if we base fair use on (lack of) efficiency? PearLyrics had a really clever idea here, and one that the established copyright holders either didn't think of or didn't think worthy of investment. We will see less of these innovators if we let Warner/Chappell swoop in and take over now that pearLyrics has proven the concept.

The IP answer, of course, is that pearLyrics should get a patent on their process and then cross-license with Warner/Chappell. But we should be concerned when intellectual property becomes a prerequisite - as opposed to an encouragement - for innovation.

Doug, I think you're right that copyright law is porous. But your efficiency rational would explain this porousness as a mere artifact of the cost/benefit balance of rigorous policing.

I suspect that the truth is more interesting than that. Fair use exists because it empowers consumers to become creators, thereby furthering copyright's goal of promoting creativity in the aggregate.

[Jay Byrd]

"suppose that we initially treat a use as fair because we think it won't hurt the copyight holder much"

The constitutional issue is whether origination of art and technology is discouraged, not whether copyright holders are "hurt". The whole idea of intellectual "property" flies in the face of the founders' intent. And it leads to such obscenities as the Conyers/Sessenbrenner bill that would require manufacturers of analog-to-digital converters to make them far more complicated so that media corporations can control their operation.