Annike Kuo: Hello and welcome to the Discovery podcast, where we speak with the law school’s distinguished guests and experts from around the world. I'm your host Annie Kuo. Hard to believe that we're wrapping up season four of Discovery. ºìÌÒÊÓƵ had our commencement recently, our first in person commencement in three years and the very first one the law school has had on our beautiful quad, home of the famous cherry blossoms.
For the end of each academic year, we host a very special visitor who gives our annual Toni Rembe Lecture. The post of our law school dean and this lecture are named after the legacy of Toni Rembe, a trailblazing lawyer, and this year we celebrated her legacy by honoring another legal trailblazer, Professor Pamela Samuelson from UC Berkeley, with a visit to campus. And we have Professor Samuelson with us today. Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at UC Berkeley. She has a J.D. from Yale and is recognized as a pioneer in digital copyright law, intellectual property, cyber law and information policy.
She recently joined us for a panel presentation at our Tech Policy Lab on interdisciplinary research and technology and society. Then Professor Samuelson gave the Toni Rembe Lecture at the gorgeous Burke Museum, sharing about copyright law and consumer protection, which we're going to cover today.
Welcome, Pam.
Pamela Samuelson: Thanks very much. I'm glad to be here.
AK: So could you tell us why would people imagine that copyright has nothing to do with consumer protection? We know that you're the co-founder and chair of the Authors Alliance. So, I wonder if you could speak to this from the author's rights perspective.
PS: The way that copyright law is written, and the way that most people who are practitioners in the copyright field, think about copyright is that it's a grant of rights to authors. And the point is actually that if they create something that's commercially valuable, that they should be able to enjoy the commercial exploitation of those works. And that's a reward to them for all of their hard work.
If you read the copyright statute of the United States or of other countries, you'll notice that it talks a lot about author's rights, and it talks hardly at all—in some people's view, not at all—in terms of the sort of interests of consumers, the interests of individuals who want to enjoy or want to build on existing works of authorship. So, it takes a little digging to actually find that there are some ways in which consumers’ interests are reflected in copyright law. Part of the goal of my lecture was to say, hey, this is something that we mostly don't pay attention to. But it's actually really important. And in fact, it's part of the overall goal of copyright, which is the notion that the reward to the author is a secondary consideration. The primary goal of copyright is to induce people to write creative things and disseminate them so that the public actually has access to knowledge. That's why the Constitution speaks about the promoting progress of science, by which they meant knowledge, as the constitutional goal of copyright
AK: And is the copyright statute called the Statute of Anne? D’22
PS: The first copyright statute in the UK was called the Statute of Anne, which was named after Queen Anne at the time, it was passed and 1710. And it was the first copyright statute that actually had some consumer protection elements built into it. And why is that? So, one problem at the time, was that the prices of books were really, really expensive. And part of the reason that they were expensive was because there wasn't anything in the public domain. And publishers actually thought that they had copyright in something they thought I had had it for a perpetual time.
So, what the statute did is say you only get 14 years protection, and then it goes into the public domain, and anybody can print it. So, that was the start of competition in the creation of works of authorship. But also there was a process in the Statute of Anne that allowed people to complain to public authorities if publishers were in fact charging excessive prices. And one other thing that I pointed out in my lecture is that one of the other conditions was that the publishers had to give a certain number of copies of their books to university research libraries, so that the public would have access to knowledge in that way. And even today, when you register a claim of copyright with the US Copyright Office, you have to supply two copies of your protected work to the office. And one copy actually goes into the collection of the Library of Congress. So, that's a way in which that kind of old tradition has been carried on even in today's copyright law.
AK: I like the name the Statue of Anne as an Annie. Would you unpack some ways in which consumer interests are actually protected through the copyright statute? You mentioned that, I think, it's the first sale rule. But in your lecture, you also discussed fair use. I wonder, would you be willing to comment on fair use, or the first sale rule with some examples?
PS: We all know that when we buy a book, or a DVD or some other embodiment of a copyrighted work, the sound recording for example, we all know that when you purchase it, and when you buy it, and when you own a copy, you can do with it what whatever you want, kind of within reasonable bounds. That is to say, you can give it away, you can sell it, you can lend it. This is called the first sale rule under US copyright law, because it means that the copyright owner is entitled to control the first public sale of copies of the work to the public, but once the copyright owner has distributed a copy, and people own those copies, their right to control the distribution of copies is exhausted, they can't control it anymore. And that's why we have libraries. That's why we have used bookstores. That's why we have lots of ways in which people are able to get access to works secondhand, and the like. And you can resell it on eBay, if you want. So, that's one of the clearest ways that the copyright protects the interests of authors. And in fact, the statutory embodiment of it talks about that the owners of copies are entitled to be able to sell, lend or give away their copies copyrighted work. So, that's actually the one clearest type of way that copyright law protects the interests of individuals.
And of course, there's this doctrine of fair use in copyright law. So, all of the exclusive rights that are granted to authors are subject to fair use. So, that if you make a fair use of a copyrighted work, that's not a copyright infringement. That's something that you get to do. The Supreme Court back in 1984 decided that people who had bought Sony Betamax machines, and were using them to record television programs, were making copies for time shift purposes. And that was fair use, it wasn't an infringement of the copyright and the programs. And so that was actually a really important ruling. And the court basically said, the private noncommercial uses of copyrighted works in general, are presumed to be fair. Now, that doesn't mean that you can do peer to peer file sharing of sound recordings. But it does mean that there's a kind of breathing space for consumers to make certain kinds of abuses of copyrighted work. So, many people today, make remixes and mashups and things like that. And fair use, for the most part, will protect that, particularly if it's done for noncommercial purposes. So, those are some of the examples.
But, you know, there's also, you know, when we perform a copyrighted work, so if I, I sing a song in my class, I'm protected by a provision of the copyright statute that allows the public performance in a nonprofit educational setting of copyrighted works. You can also sing copyrighted songs in a church. And there are a number of specific exceptions that kind of recognize the right of consumers to be able to sort of make some uses of copyrighted works, even though they may be a public performance, but they're privileged by the Copyright Act.
AK: Thank you. I remember that example about singing in church from your lecture. It's great to get the real world application of some of the copyright law. I’m wondering about how the Supreme Court endorses copyright law as a service to the public over owner's rights, and I believe you mentioned that you have a particular view on their endorsement.
PS: Yeah, when the Supreme Court actually I think has a very public spirited view of copyright. That doesn't mean that anybody can get away with anything, but it means that the court—when it’s considering fair uses, for example—it thinks about the public's interest in having access to particular work. So, in one of the most famous of the Supreme Court's fair cases, Campbell vs. Jacob Rose, what was happening was that 2 Live Crew, which was at the time kind of like, a rap group, not known very well today, but nevertheless in the early 90s, it was kind of a hot thing. And so they did a rap parody of Roy Orbison’s song Pretty Woman, and sold it in large numbers of copies. And Acuff-Rose, which owned the copyright in the song basically said, hey, that's copyright infringement. You're doing it for a commercial purpose. It's a highly creative work. You're taking too much of it, and you're harming the market for my work. So, cannot be a fair use. And the Supreme Court said oh balderdash.
One of the things that copyright law does in the Fair Use provision is it says that engaging in critical commentary is actually something that favors fair use. And so the court noted that Campbell’s song was basically critically commenting on the banality of the Roy Orbison song—the kind of like rosy view of the pretty woman walking down the street. And you know, big hairy woman was like a completely different way of thinking about that song. And so the court basically said, also, if you want to make fun of a song like Pretty Woman, you got to take a lot of the stuff that people like, you know, you got to conjure it up. And the court also noticed that, you know, copyright owners don't really have a sense of humor, so they don't like people to make fun of their works. But if the reason that there might be some harm to the market is because once you hear the parody, you're not so keen on buying the original anymore, that's actually not a harm of the sort that copyright law cares about. So, here's an example of where the court basically thinks that the public should have access to the 2 Live Crew version, because it basically is a commentary on the original. And that kind of ongoing progress of knowledge, the ongoing progress of culture is something that copyright law is supposed to be doing.
AK: And you mentioned in your talk an empirical study, where it was revealed when people go to a website and click on a button that says, buy now, they think that they own it, then they find out later, it's only licensed to them. And then you mentioned the study involved an experiment in which people were less likely to click on license now than buy now. Could this would be considered a kind of deception?
PS: So, Aaron Perzanowski and Chris Hoofnagle, two of my friends and colleagues, thought that it was an empirically significant question, whether it's true that people would say buy now, so yeah, I'll click on that. Whereas if they say, license now they're less likely. So, they set up a kind of hypothetical website, and some people went to the buy now. And some people were sent to the license now. And what they found was that not only did the people, click here, buy this song now, if they were on that site, but also, when they were questioned, they thought that when they sort of bought something under one of these, click here, buy now, they actually had the same rights to do things with those digital copies, as they would have if they had purchased the CD, for example. And so the license now less likely to click on, oh, yeah, I want to go I want to do this. But also, if it says licensed now, you can have some reason to think that you're not getting, you're not purchasing something, you're not going to be the owner of a copy. And so maybe your uses would be more restricted. And maybe that would make it less useful to you and maybe less valuable.
So, I think they were these colleagues did this really important study and really suggested the Federal Trade Commission might want to take up an inquiry about whether using a buy now when you're in fact planning to license now is an unfair and deceptive trade practice and if that's the kind of thing that the FTC actually has the authority to regulate. So, we may see something like that happen, especially now that the Biden administration, I think, has more kind of pro-consumer attitudes or copyright.
AK: Right, you'd mentioned that President Biden announced administrative support for the right to repair which I want to talk about next, and that he's directed the FTC to engage in rulemaking or other activity that will allow the right to repair to happen.
In your lecture, you showed us a picture of a John Deere tractor, and said by the end, we'd understand that tractors, copyright law and consumer protection are related or you know, that is protected. Could you tell us more about the right to repair that is really strange. I found it very strange that John Deere says that the farmers who own their tractors—I'm sorry, the farmers who've purchased their tractors—don't actually own it, and that they can't repair their own tractors because the company owns the software.
PS: So, obviously, when you own the tractor outright, and it didn't have any software in it, if some mechanical part broke down, sometimes farmers were pretty technically sophisticated, and were able to repair their tractors. And so they got used to the idea, as many of us do, right? People been repairing cars, and repairing refrigerators, and repairing all manner of technologies. And kind of that freedom to tinker with your copies of a machine, or other kind of device is something that we all kind of got used to.
But of course, that was before they put so much software in a lot of these devices. And so now it is, cars basically are more software, at least with a Tesla, it's more software than it is hardware, really. And so all of these software-embedded devices actually are now more difficult to repair, because you know, how to you know how to how to change the software in order to like, fix some bugs. And so the farmers are not really trained in that. Whereas they kind of like knew how to do things when it was mechanical. And also, they don't necessarily have the tools. They don't have the capability. But maybe they could hire somebody to do it. But John Deere says, oh, no, no, no, no, no. We own the copyright and the software that's embodied in your tractor. And we may have sold you for, I don't know $50,000, this machine which you like to use to plow your field, but actually the software, which is the stuff that needs to get repaired, we licensed that to you, you don't own that, we own it. And you can't do anything to repair that tractor’s software without our permission. And guess what, we're not gonna give it to you.
I think there's been kind of a recognition that it's not just tractors. And it's not just cars. If your Apple iPhone, basically, you know, has a problem, you can easily repair that. And so a lot of the software-enabled devices, they not only make it hard to or nearly impossible, but they're sometimes designed to not be repairable because they'd rather you buy the new updated version of something rather than to repair it. So, there was an incredibly significant thing. The president announced that it was administration policy, that people should have the right to repair their devices, electronic devices. And so New York just recently passed a law on granting a general right to repair. But now the Federal Trade Commission may be taking up some rulemaking to enable repair.
AK: Could you discuss some of the consumer-friendly cases such as the Sony universal case, and or the Galoob vs. Nintendo case?
PS: Nintendo, of course makes video games and there was a company called Galoob that was selling an add-on program that people could use when they were using their Nintendo games to extend the life of the games. If you had a particular favorite character, and you wanted that character to live longer than the game would ordinarily allow, you could use the Galoob Game Genie, to alter the play and Nintendo said, hey, that belongs to us and the Ninth Circuit Court of Appeals, which is the one that is in charge of decisions in Washington, Oregon, California and Hawaii, the Ninth Circuit basically said then it was fair use for people to use for individual consumers to be able to use this add-on program to enjoy the Nintendo games and it wasn't an infringing derivative work. And so that's another consumer-friendly decision by the Supreme Court.
And of course, I mentioned before the Sony vs Universal case, which essentially said that the private noncommercial uses of copyrighted works, including making copies that are not competing in the marketplace, those are things that actually are fair uses, too. And so that's actually been not only good for individual consumers not to have to worry about copyright, but it also means that companies can make technologies that enable these private noncommercial copies to be made. And that's actually something which is beneficial to the public too, because now you have access to VCRs and other kinds of, you know, remote servers, DVRs now. That's an example of how technology has enabled some new uses of copyrighted works that Congress really hasn't dealt with. So, Congress is not really the major actor here, fair use is a major actor.
AK: I love that. Even though we're looking forward into the evolution of copyright law and consumer protection, this is like a throwback to VCRs and 2 Live Crew.
PS: Right.
AK: And you mentioned that there's another case related to the Internet Archive that you're following pretty closely, a judgment’s expected to be rendered this summer. You're welcome to comment a little bit on that pending case.
PS: So Hachette is one of several publishers of books that decided after not objecting to Internet Archives’s Open Library decided recently to sue Internet Archive for copyright infringement because Internet Archives’s Open Library contains digital copies of books that Internet Archive physically owns. So, they digitize their copy of a copyrighted book, they make the digital copy available for controlled digital lending on the Open Library site. They basically say, look, if I own two copies of this physical book, I can lend two copies of the digital book, as long as I technically protect it, so that people can't make infringing copies from it. And also that I let them use it for two weeks, the way that you usually check out books at a library. And so the idea is that it basically is trying to bring digital lending into widespread acceptability. And this was a particularly important thing to enable during the pandemic, right? When physical libraries were closed, you couldn't get access to books at all. And we were all pretty freaked out during that time. But Open Library enabled people to get access to books, even when bookstores and even when public libraries and research libraries at universities were closed. And so Hachette is suing for copyright infringement saying, no, this is copyright infringement and Internet Archive is arguing that it's making fair use. Now, this is a test case. And we'll see what happens. I think it is significant that for seven or eight years Open Library had been making these digital copies available on the controlled digital lending basis. And it was only on during the pandemic, but they decided to sue, and that seems like, you know, not exactly the good timing on their part.
AK: It'll be interesting to see the judgment on this test case. We’ll be following that this summer.
Since 1996, Professor Pam Samuelson has held a joint appointment at the Berkeley Law School and UC Berkeley School of Information. She's the director of the internationally renowned Berkeley Center for Law and technology, and is co-founder and chair of the board of the Authors Alliance.
Professor Samuelson, thank you so much for taking time with us to talk about your visit to campus and the topic of copyright law and consumer protection. You mentioned that Berkeley is on a semester system. So, y'all already had your commencement back in May. We just wrapped up here. And we're wrapping our season four of the Discovery podcast to return in the fall. But I couldn't think of a better way to end the season than with our Toni Rembe lecture speaker. So, thank you so much for being here.
PS: And thank you. This was fun.
