ASMP Seminar: Copyright and the New Economy

Yesterday I attended a seminar put on by the American Society for Media Photographers called "Copyright and the New Economy." The afternoon panelists included, among others, Lawrence Lessig, Harvard Law School Professor and author of books such as Remix and The Future of Ideas, Chase Jarvis, the well-known commercial photographer, and David Carson, U.S. Copyright Office General Counsel. Below are some of my thoughts after the event.

What does copyright law mean today, in the 21st Century? Congress enacted the first Copyright Act in 1790, pursuant to Article I, Section 8, Clause 8 of the Constitution which permits Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Since 1790, and through several revisions and amendments, the Copyright Act has attempted to balance the interests of (i) artists; those who create art in order to make a living and (ii) the public's First Amendment right to freedom of expression. The grant of a copyright is, in and of itself, a small exception to the First Amendment, because (loosely) it permits the author of a work to exclude others from substantially similar expression.

Since the 1976 Copyright Act, the laws have been relatively stable. Even taking into account the copyright disputes which went to the Supreme Court and changed major components of copyright law (i.e. Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994), [2 Live Crew's parody of Orbison's "Pretty Woman" did not constitute infringement because the work was sufficiently transformative to constitute a parody and fair use]), there was no threat to the fundamentals of copyright law that an artist and copyright holder attempted to enforce its copyright against an alleged infringer.

Just as the Campbell decision came down from the Court, the Internet Age began. As described by Mr. Lessig, the first iteration of the internet was "Read-Only." Some users would post content, and other users would read/download/purchase the content. The internet involved into "Web 2.0" with "Read-Write" abilities. Now users could upload content, and other users could edit, manipulate and change existing content.

Couple these changes in the internet with the fact that the general public could suddenly buy digital cameras and music editing equipment for relatively inexpensive prices, and the result is that ANYone can be an artist. ANYone can be a music editor or distributor. And now, with the recent developments in smart phones and social networking, much to the chagrin of many professional photographers, ANYONE can take a high resolution picture with their phone and immediately publish it to Facebook, Twitter, Flickr, or any other site, sync existing music to the image or video, and be the "author" of a new work.

Is the Copyright Act equipped for the 21st Century? How can professional photographers survive when the general public seems to be satisfied with (relatively) low-resolution, improvised pictures? Even websites like CNN.com encourage "iReporters" to upload their pictures from the site of a news event. Why hire a professional photographer when someone is always happy to snap a photo with their iPhone and send it royalty-free to the press?

What about YouTube users who "remix" their own video with existing copyrighted music? Or users who remix one artist's copyrighted movie with another artist's copyrighted music? Does the resulting work have the requisite "spark" of originality to be independently copyrightable, or withstand a copyright infringement lawsuit? Do two copywrongs equal a copyright?

The Copyright Act which was created (and extended) to protect Mickey Mouse cannot be the same Copyright Act that enforces artists rights at the same time as it comprehends and takes into account 21st Century user-generated-content technology. As Mr. Jarvis stated, at what cost do we enforce the existing Copyright Act? One one hand, artists who intend to make a living by creating art MUST be encouraged to create with an enforceable copyright to exclude others from using their works. On the other hand, the new technology is creating new artists that may never have had access in the past. Mr. Jarvis's 65 year old mother can finally take the pictures she always wanted because she has an iPhone, and children around the world can upload music and video remixes and send them to each other. We should be encouraging such creativity, not stifling it.

Nobody knows how, when or if these issues will be resolved. Obviously legislation takes years, and even when Congress enacts the Copyright Act of 20??, it will likely be obsolete as soon as the next iSomething is announced.

Admitted to SDNY and EDNY

On a personal and professional note, I would like to announce that I was admitted today to the United States District Courts of the Southern and Eastern Districts of New York. As a member of the Federal bar, I will be able to expand my practice areas, and more easily practice intellectual property law when such matters are litigated. I would like to thank Adam Nicolazzo for sponsoring me, and I am looking forward to my first appearance in Federal court.

SDNY Holds Gene Patents Invalid

On Monday, March 29, 2010, the U.S. District Court, Southern District of New York, held that patents on a set of human genes linked to breast cancer are invalid. Patents are meant for innovations, granting the inventor/creator the exclusive right to develop and produce the innovation. Exclusivity rewards the inventor, yet too much exclusivity stifles competition and advancement.

While no one is undermining the difficulty to identify and analyze genes, the ramifications of patenting such processes seem dangerous. First of all, genes should not be patentable subject matter, as they are not a new process or composition of matter. Genes already exist in all species, and are merely discoverable by the scientist. This is playfully analogous to Christopher Columbus (as the patent holder), claiming the New World in the name of Spain (a patent for exclusivity), when the land itself already existed and was inhabited by others (genes, waiting to be found). Discovering and analyzing genes, as with discovering America, is quite an accomplishment, but does it itself encourage invention/exploration and warrant exclusivity? Patents are not meant for discovering hard-to-find things, but for rewarding invention and creation - "to promote progress in science and the useful arts."

The Court also invalidated the method process of analyzing the genes, because the process failed the Bilski test requiring the process to be connected to a particular machine or device or that the process transform an article or piece of matter into something else. Bilski is currently before the Supreme Court, and its resolution will clear up some of these issues.

By invalidating the patents, the Court has encouraged competition and innovation, and many more research facilities will be able conduct similar genetic research, hopefully leading to advancements in breast cancer treatments, which treatments may in and of themselves be patentable.