Lunch with the Hon. Alex Kozinski

9th Circuit Judge Alex Kozinski is the Lewis and Clark Distinguished IP Visitor this week. This has been exciting to me because although I disagree with his politics (he's a Reagan appointee) I think his IP opinions are usually right on. I first came across his writings long before I started law school in the form of his dissent from a refusal for an en banc hearing of White v. Samsung Electronics. That's the one where Vanna White successfully sued Samsung for violating her right of publicity for its commercial featuring a robot in a blond wig next to some letters. At the time I had no idea who he was (I read the opinion in the appendix to the Negativland book I mentioned in a previous post), but the fact that he saw some serious trouble ahead if the 9th Cir. let that holding stand made me like him.

Last night his topic was "What's So Fair About Fair Use." He suggests that the fair use doctrine as applied to derivative works (not pirating or copying) is unfair and should be abolished all together. This is quite a shocking notion, but his alternative makes some sense.

He argues that fair use is unfair for two reasons. First, because it is an affirmative defense that is determined by weighing 4 factors, any given 3 judge panel might come to very different conclusions about whether a use is fair. Second, because copyright speech is treated very differently from other speech in granting preliminary injunctions, allegedly infringing material is quite regularly removed from the market. With regular speech, courts are very reluctant to enjoin speakers before a trial on the merits. But, with copyright infringement claims, we enjoin defendants all the time with minimal showings of a likelihood of success on the merits.

Judge Kozinski proposes that we eliminate the granting of injunctions against derivative works altogether. In exchange, we eliminate fair use. Instead we allow the parties to either negotiate or seek damages for derivative works. With an unpopular work, there wouldn't be any damages because no one would really know about it, and the defendant wouldn't be making any money off of it. With a popular work, the damages would essentially be a cut of the profits.

This makes a lot of sense in a commercial setting. My problem with his idea is when we have a big bully like Disney/Mattel/Island Records against some small rabble rousers like, oh I don't know, Negativland. Kozinski would leave them high and dry just like the current law does.

Under both regimes, a big bully can threaten to sue. To the starving artist, the mere threat of a law suit, even if you have a fairly good chance of winning, is enough to send you running. Who can afford attorneys these days? Kozinski would say that if their works were popular they would have money, and if they weren't, why would the bully sue? Why, because he's a bully. The whole reason we have fair use is because there is a true market failure. That is, these parties can't negotiate a license because the copyright owner doesn't like them or their art. So, we let the fair user go ahead and do their thing. Problem is the cost of litigating this shit. And Kozinski's plan, while good for businesses (who can always afford to go bankrupt) doesn't make much sense for the independent artist. Then again, it isn't any worse for them than the way things are right now.