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February 11, 2007
The Potter Stewart copyright rule
C and I listened to the Open Source Radio podcast of their recent show on plagiarism and copyright, “The Ecstasy of Influence” this morning. It’s a wonderful piece rooted in discussion of what it is to “plagiarize,” and the ways in which our law and culture attack the issue. Check it out, I’ll wait.
About 3/4 of the way through, the host challenged Mike Doughty to draw the line between artistically-acceptable “ganking” of a progression or a hook from a song in order to expand on it in a work of your own, and unethical infringement/plagiarism. Mike elided the question, and Siva Vaidhyanathan backed him up by saying that we’re at the point in early 21st-century copyright questions where case-by-case determinations of when an “artist” goes to far are really the only credible way to determine whether sanctions are required. He didn’t say the words “I know it when I see it,” but he came pretty close.
For those who don’t make a hobby of reading up on obscenity law, “I know it when I see it” is Justice Potter Stewart’s infamous formulation of the legal test for how to separate obscene texts from non-obscene ones. In the legal community it’s become a semi-notorious example of a legal standard that’s so vague as to be useless to any person who isn’t Potter Stewart. It turned out to be extraordinarily difficult to apply,1 and ended up being replaced by the not-much-better “community standards” test.
If the “I know it when I see it” test is the exemplar of judicial unworkability, then what do we make of Siva’s diagnosis that that’s exactly where we are in the copyright infringement space? After a short period of despair, I realized that the IKIWISI terminology is useful to the extent that it helps move the copyright conversation away from our traditional conception of copyright as property and towards a liability rule. After all, if copyright owners understood that what they had was not an absolute right to control the work, but a right to try to convince Potter Stewart that the use was unjustified, we might see fewer of the behaviors we view as abusive. Compare this to the situation in obscenity law, where we were concerned not with the payment of a royalty, but with the prior restraint of entire texts. The vagueness of the Potter Stewart test seems a lot less troubling in that light.
Oh, I’m back, by the way. And I am aware of each of the following:
- I have not posted anything in almost six months.
- There are around 10,000 comment spams cluttering the site.
- Bill Haydon just died
1 It also led to the bizarre scene of the Court watching allegedly-obscene films in a special screening room, and the even more bizarre (and possibly apocryphal) tale of a clerk having to narrate the on-screen action to his nearly-blind boss.
Posted by Rob Courtney at February 11, 2007 10:18 AM
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