Judge Posner: Misuse Remedies for Copyright's Chill

Judge Posner, over at the Lessig blog, describes

a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth.

We at EFF and Chilling Effects have seen these copyright overreachings frequently too. Sometimes, though, we find a little guy who doesn't want to cave in the face of threats, doesn't want to remove the web posting or excise the portion claimed to "infringe," but wants to fight for his fair use and First Amendment rights.

In the case of OPG v. Diebold, when Diebold claimed that copyright in internal emails entitled it to demand that ISPs remove criticism of Diebold e-voting machines, we took OPG's case and sued Diebold for copyright misuse and DMCA misuse. The way misuse works, if you assert more copyright than the law gives you, you're barred from enforcing any copyright in the work until you stop overreaching. Like the owner of the golden-egg-laying goose, if you ask for too much, you get nothing at all.

Judge Posner recommends the doctrine of copyright misuse too -- and as a judge, he doesn't just blog about solutions, but suggested this one in his WIREdata opinion. Let's hope that more courts, and more lawyers for the little guys, can use this doctrine to keep copyright overreaching in check.

MPAA Strikes Again v. DVD Chips

Donna links to John Borland's report on another MPAA attack on DVD decoding:

According to the MPAA, Sigma Designs in Milpitas, Calif., and Taiwan-based MediaTek each have sold DVD-player chips to companies that offer features in their products that aren't allowed under the general DVD technology license. That act violated the license the chipmakers had to sign to build the DVD chips in the first place, the trade association said. (emphasis added)

That's right, the MPAA, through its partner in cartelization, the DVDCCA, tightly controls the features of every DVD player it allows to be marketed. Through a web of contracts, copyright, and DMCA, the MPAA has been able to prevent evolution in the design of DVD players since their introduction. DVD-player manufacturers are in a Catch-22: Don't sign the DVDCCA's restrictive contract, and you're sued under DMCA; sign, and you're contractually bound not to listen to customers' feature requests. Don't let anyone tell you these cartels aren't clever (PDF).