Sony’s No Good Terrible Very Bad Year Just Demonstrated The Need For Copyright Reform

By all accounts, 2014 was a garbage year for Sony Pictures Entertainment, and 2015 isn’t shaping up to be much better. First, Sony was the victim of the largest corporate hack in history (which may have been the work of the North Korean military or an inside job. I forget where we stand on this now). Then, after a baseless terrorist threat by the group responsible for the hack, Sony pulled The Interview from its theatrical release. That caused a huge PR shitstorm with everyone accusing Sony of caving to terrorist threats and violating the spirit of America or something. Then, after realizing how stupid it was to pull the movie, Sony released it On Demand where it got, at best, middling reviews (having seen it myself, I concur: it’s funny, but not worthy of the controversy). This is to say nothing of the reams of private data that hit the web as a result of the hack, demonstrating how horribly racist and conceited the people running Hollywood really are.

And now there’s this:

K-Pop artist Yoon Mi-Rae is suing Sony for copyright infringement for allegedly using one of her songs, Pay Day, in a scene in The Interview. Specifically, this scene. Evidently, the artist had been in discussion with Sony to license her song for use in the movie, but negotiations halted for some unknown reason. No contract was signed and Yoon was never paid.

Boy, it’s almost enough to make me feel bad for Sony… inasmuch as I’m capable of feeling bad for a large heartless corporation run by terrible white people.

How could this have happened? Doesn’t Sony employ an army of lawyers like every other huge company to prevent exactly this type of thing? I certainly don’t believe Sony did this on purpose (the damages and insurance costs associated with the infringement would surely outstrip the licensing fees). More likely, this just fell through the cracks as the filmmakers rushed to meet their delivery deadline. It happens all the time in all sorts of industries.

To me, that actually says quite a lot about the state of copyright law in this country. And that is that it’s really really really really really really really hard to avoid infringing on copyrights, even if you’re a big multi-national corporation. Sony is in a position to know better, but most people aren't. There is just so much content out there - visual, musical, and otherwise - and the internet has made it tremendously easy to access all of it instantly and without much forethought. Heck, even if all you want is to honor and pay homage to something you like, it could still run you afoul of the Copyright Act. Just ask Robin Thicke about that. As this TechDirt article points out:

"Even when you are a strong believer in copyright, there are going to be some situations in which you screw up and break the law. Given how frequently this happens, it certainly seems like the problem is with the law rather than all the people."

And that’s the central conceit of this law review article by John Tehranian, a law professor at the University of Utah. His main argument is that copyright law is inextricably linked to the way we live our lives today and that we can’t help but violate the copyrighted works of others. According to Tehranian:

"Copyright law is playing a profound role in shaping our very identities...we are in the midst of a 'Participation Age’ of remix culture, blogs, podcasts, wikis, and peer-to-peer file-sharing. This new generation views intellectual properties as the raw materials for its own creative acts, blurring the lines that have long separated producers from consumers.’ In the digital age, we are all regular consumers and producers of copyrighted content."

Tehranian illustrates this through an entertaining thought-experiment. A fictitious law professor named “John” accidentally racks up billions of dollars in copyright liability in a single day simply by replying to emails, getting a tattoo, and engaging in other normal daily activities. While the example is clearly meant to be a reductio ad absurdum-style joke, the message is clear: the Copyright Act, 40 years out of date, needs to be reformed, because it’s far too easy to rip someone off and it happens way too often to be a statistical outlier.

So how do you fix it? I’ve argued in the past that shortening copyright terms can help. Reducing monetary penalties for acts of infringement and broadening fair use protections are useful too. In short, we should be making copyrights less economically valuable. Per Tehranian:

"Any use of a creative work is now, as a default matter, viewed as an infringement...Enforcement has become increasingly worthwhile for a growing number of copyright holders, making copyright law relevant to any growing number of creators and, concomitantly, users."

While a reformed Copyright Act would mean it would be harder for Yoon to sue Sony for accidentally infringing her work, it also means it would be harder for corporate copyright holders to sue smaller up-and-coming artists for benign copyright infringements like this one. That’s no small thing, and it's something I could get behind in a big way. No law needs to be in a perpetual state of updating, but things have changed enough since 1976 that Congress really can’t ignore it anymore. 

In truth, I don’t see any meaningful reform coming down the pike anytime soon. A new Republican majority Congress has more on its mind than making copyright law more accessible to artists. But maybe if enough Sonys screw the pooch often enough, it could kickstart the change we need.

As for Yoon, she’ll make a pretty penny off this lawsuit (Sony will almost certainly settle). And that means she’ll have a much better 2015 than Sony.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA