Atomism and Automation

1471-1502_VAN HOUWELING_032013_WEB (DO NOT DELETE) 3/20/2013 8:29 PM ATOMISM AND AUTOMATION Molly Shaffer Van Houweling † TABLE OF CONTENTS I. INTRODUCTION .......................................................................................... 1472 II. COPYRIGHT ATOMISM IN THE DIGITAL AGE ........................... 1473 III. PHOTOGRAPHS AS ATOMISTIC COPYRIGHTED WORKS ..... 1476 IV. STRATEGIES FOR MITIGATING THE COSTS OF ATOMISTIC OWNERSHIP ........................................................................ 1480 A. B. V. ANXIETY ABOUT AUTOMATION ....................................................... 1487 A. B. C. D. VI. REINVIGORATING REGISTRATION...................................................... 1480 DIGITIZING DECENTRALIZED NOTICE ............................................. 1481 INTEROPERABILITY ................................................................................ 1487 1. Technical Interoperability.................................................................. 1487 2. Legal Interoperability ....................................................................... 1490 PERSISTENCE ........................................................................................... 1492 USER COMPREHENSION ........................................................................ 1496 ACCURACY ................................................................................................ 1497 CONCLUSION ................................................................................................ 1500 © 2012 Molly Shaffer Van Houweling. Originally published in the Berkeley Technology Law Journal. Licensed under the Creative Commons Attribution 3.0 Unported License. To view a copy of this license, visit http://creativecommons.org/licenses/ by/3.0/ or send a letter to Creative Commons, 444 Castro Street, Suite 900 Mountain View, CA 94041. † Professor of Law, University of California, Berkeley. For helpful discussion and comments on previous drafts, thanks to Robert Barr, Robert Glushko, Robin Kuntz, Mike Linksvayer, Bennett Marks, Deirdre Mulligan, Marienna Murch, Pamela Samuelson, Jason Schultz, Paul Schwartz, Jennifer Urban, and participants in the Berkeley Digital Copyright Project’s Symposium on Orphan Works & Mass Digitization: Obstacles and Opportunities. I serve as a Faculty Director of the Berkeley Center for Law and Technology, which supported this research in conjunction with a gift from Nokia (which is a member of the Metadata Working Group, discussed below). I also serve as a member of the Board of Directors of Creative Commons, which is also discussed below. The views I express here— and of course any errors—are my own. 1471-1502_VAN HOUWELING_032013_WEB (DO NOT DELETE) 1472 I. 3/20/2013 8:29 PM BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:1471 INTRODUCTION Imagine: A budding amateur photojournalist captures the aftermath of a devastating storm using his mobile phone. He then uses the phone to enter a few terms that describe the photo (“hurricane,” “flood”), checks a box to indicate that he wants the photo to be displayed to the public, and checks another to indicate that he is the copyright owner and grants to the public a license to reuse the photo so long as it is attributed to him. He then hits a button to upload the photo wirelessly to the web server of his favorite photo sharing site, where it is immediately available for anyone to view, download, and redistribute via their own favorite photo sharing sites, social networking applications, and news outlets covering the disaster. Wherever the photo goes on this digital journey, it carries information about its contents, its origin, and its ownership—including the date, time, and location where it was taken; the descriptive terms the photographer added; and his copyright ownership, license, and contact information. When the photo appears online—whether on the photo-sharing site where he originally posted it, or on another photo-sharing site, a social networking platform, a news service, or a peer-to-peer network—this information is communicated to anyone who might want to use the photo yet again. This “metadata” is digitally embedded in the photograph in a way that also makes it possible to find the photo easily by entering the descriptive terms or the photographer’s name into a search engine. The photographer uses this functionality to track the many places online where his photo has been used—with credit to him and his reputation. He receives email inquiries from news outlets who are interested in seeing more of his work. Technology-savvy photographers know that much of what we have just imagined is not imaginary. Uploading a time-, date-, and place-marked photo from a smartphone to the web while adding descriptive terms that will be displayed along with the photo is becoming commonplace. It is also increasingly commonplace for online photos to be accompanied by copyright licenses that specify how they might be reused. And all of this information can be embedded in digital photo files in a way that can be recognized by subsequent applications and users. But although individual elements of this vision exist, and some have been combined in ways that offer a glimpse of the entire picture, digital photographs do not yet easily and reliably travel on their digital journeys accompanied by information that accurately describes and identifies them and their copyright status. Instead, despite the remarkable potential of digital capture technology and the Internet, digital images can be as mysterious as long-forgotten photos found boxed up in the attic, missing their context and human connections. They become part of our increasingly and frustratingly “atomistic” copyright environment, in which 1471-1502_VAN HOUWELING_032013_WEB (DO NOT DELETE) 2012] ATOMISM AND AUTOMATION 3/20/2013 8:29 PM 1473 copyrights are numerous, widely-distributed among often unidentified owners, and fragmented into small and idiosyncratic parts that complicate— or even foreclose—negotiations over reuse of copyrighted works. In this Article I use digital photographs as a case study of copyright atomism and how automated systems for tagging and tracing might help to alleviate atomism’s costs. Part II introduces the copyright atomism concept and explains how atomism has increased in the digital era. Part III focuses on digital photography as an example of extremely atomistic copyright. Part IV describes how embedded metadata might help to alleviate the costs of atomism in this context, but Part V identifies challenges to the metadata solution. Part VI concludes with thoughts about the role of law at the intersection of atomism and automation. II. COPYRIGHT ATOMISM IN THE DIGITAL AGE1 Digital technology enables individuals to create and communicate in ways that were previously possible only for well-funded corporate publishers. This makes copyright law newly-relevant to individual amateurs (as o (...truncated)