ReDigi, Fair Use, and Libraries

Photo by author.

In my last post, I opined that the fair use interests of librarians and educators are not necessarily aligned with for-profit business ventures seeking to exploit creative works in ways that can harm authors.  For instance, in the case of Capitol Records v ReDigi, now on appeal at the Second Circuit,  Jonathan Band filed an amicus brief on behalf of the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Internet Archive in favor of a reversal of the district court opinion, which held that ReDigi is infringing.

To the casual observer, ReDigi is a service that acts as a middle-man to broker the sale of “used” MP3 files.  The idea is that, when you decide you’ve listened to your iTunes-purchased copy of Meat Loaf’s “Bat Out of Hell”* for the last time and think somebody else might want it,  you can sell the MP3 files via ReDigi as “used” items for a portion of the original price, with a cut going to ReDigi.  From a legal standpoint, however, ReDigi is a somewhat complex, computer-to-computer model hoping to avail itself of a copyright limitation written for a purely physical world.

To the best of my knowledge, the ReDigi model has changed a couple of times, but the way the system works is that the MP3 files being offered for sale are removed from the seller’s devices and copied onto the ReDigi server from which the seller alone may still listen to the tracks until they are purchased by someone else.  Upon sale, the files are removed from the server and copied again onto a device belonging to the purchaser. Naturally, this sounds attractive to many consumers, and ReDigi seems to have made an effort to ensure, to the best of its ability, that only one owner at a time has the files.  But that doesn’t necessarily make the service legal, or even a good idea in the market.

The district court held that ReDigi infringes the plaintiff’s rights of reproduction and distribution. ReDigi’s defenses that it is non-infringing were based on the first sale doctrine and fair use; and it is with regard to the fair use defense that the libraries apparently see a common interest.

Band’s amicus brief argues that a finding of fair use in ReDigi would set a precedent that furthers the interest of libraries to develop new models for digital-age lending and other services. And this is where I personally see a necessary distinction between the interests of libraries—which sometimes receive specific carve-outs in copyright law—and avoiding the particular harms caused by a ReDigi model, which could very easily be an Amazon-scale service overnight.

Digital First Sale Creates an Artificially Deflated Market

The first sale doctrine (Section 109(a) of the copyright law) is the reason you are allowed to sell your individual copies of books, CDs, DVDs, etc. as used items without infringing the copyright interest of the authors.  It’s predicate is a case from 1908, long before anyone could possibly imagine “owning” entertainment media in the form of data that is not exclusively bound by a physical object like paper or a disk.   ReDigi argued that the first sale doctrine makes its business non-infringing, but the court disagreed on statutory grounds—namely that the language “plainly applies to the lawful owner’s ‘particular’ phonorecord, a phonorecord that by definition cannot be uploaded and sold on ReDigi’s website.”

As a technical matter, ReDigi has to make a copy of the files from the “seller’s” computer to ReDigi’s server. That copy is already an infringement of the rights holders’ exclusive right of reproduction, and that copying is not protected by first sale doctrine.  But even if one wishes to argue that this is a mere technicality, there is still ample reason not to apply first sale doctrine in a purely digital market.

The District Court stated that if ReDigi seeks amendment  to the Copyright Act to satisfy its interpretation of first sale, that this is job of Congress and not the courts. On that subject, Congress has reviewed first sale doctrine as part of its comprehensive review of the Copyright Act. (In fact, I sat on a panel in 2014 hosted by the USPTO discussing this very issue.) And the Department of Commerce examined the subject of digital first sale and concluded that the principle did not apply to digital transmissions and that there is no evidence warranting any change to existing law.

I advocate against digital first sale for the simple reason that digital files cannot be “used” according to any rational definition of that term.  Since 1908, the distinction between the used, secondary market for these goods and the primary market has been clear, with the former posing no threat to the latter.  Even in cases in which used items appreciate in value (e.g. rare books), I would argue this will only ever apply to physical goods and not to raw data that may be endlessly copied from device to device. (A signed, first edition Yeats is worth a couple grand; an eBook containing the same written material is free.)

Because a “used” digital file is as pristine as a “new” digital file, a service operating at scale like a ReDigi (or an Amazon) would simply create a new primary (or alternative) market that artificially degrades pricing for digital-only works.  Regardless of the fact that some consumers feel that any price above zero is a “rip off,” the reality is that we pay comparatively low prices for the media we store today, and even lower prices for media we access through subscription or ad-funded models.  If anything, Congress should reaffirm that first sale applies solely to physically-bound, legally acquired, copies of works.

ReDigi’s Fair Use Argument and the Libraries’ Interests

Apparently unconcerned with the potential harms of a ReDigi model in the consumer market, the above-named library organization would like the appeals court to find that ReDigi’s service is a fair use under the first prong of the fair use test:  1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes.

Initially, ReDigi sought to defend its position as a cloud service—that users have a fair use right to store their files in the cloud; and Capitol did not dispute this part of the argument.  But the fact that this storage was “incident to sale” of the works meant that ReDigi’s service falls “outside the ambit of fair use.”  The district court agreed.  Moreover, the court held that ReDigi’s use was not “transformative” because its service does not add anything to the works and that the commercial nature of the use tilted away from a finding of fair use.  The other three prongs of the fair use test do not favor ReDigi, particularly the fourth, given that their use can clearly cause market harm to the rights holders.

In his brief, Jonathan Band takes a curious position that the lower court failed to understand how ReDigi is protected by first sale doctrine and that a reversal of this reasoning would support a finding of fair use.  He writes …

“The district court overlooked the obvious fact that the use ReDigi sought to enable was analogous to one permitted by a central feature of the Copyright Act: the first sale right, codified at 17 U.S.C. § 109(a). The district court found that ReDigi’s uses did not fall within the scope of section 109(a) because the first sale doctrine is a limitation on the distribution right, not the reproduction right, and ReDigi’s service involves reproduction. However, the similarity between ReDigi’s service and conduct permitted under section 109(a) should have weighed in ReDigi’s favor under the first fair use factor.”

Going back to what first sale allows—namely that you are free to sell that “Bat Out of Hell” CD at a yard sale—fair use doesn’t enter the picture at all. Your right to sell your particular copy of a book or album is not a use of a copyrighted work that in any way implicates a fair use defense.  So, even if these petitioners could persuade the court that it is sufficient that ReDigi is “analogous” to the application of the first sale principle, it is hard to imagine how this favors a finding of fair use, which is supposedly the real interest among these librarians.

My read is that the argument Band presents seems over-broad—a hope that a finding of fair use in ReDigi will open a wider door for libraries to develop new means to fulfill their missions in a digital world.  In this sense, Band appeals to the Google Books case, in which Google Books prevailed on fair use analysis to the benefit of library interests. But without writing another thousand words, suffice to say that Google Books is nothing like ReDigi.  Google Books does not engage in commercial transactions, it does not make whole works available, and it provides services that are either “transformative” (e.g. full-text search) or fair use prima-facie (making works available to the print-disabled).

A finding of fair use in ReDigi may generically support the interests of libraries (or it may not), but it seems a high price to pay to allow a harmful, for-profit company to vitiate fundamental copyright protections. As implied, this paves the way for a massive organization like Amazon to decimate what remains of the primary market for sales of creative works.  I believe these matters should be viewed separately, with libraries and universities pursuing their own interests in context to copyright law rather than riding the coattails of predatory and opportunistic business ventures.


*Nothing personal, Meat Loaf. First album that came to mind.

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Celebrate fair use, but don’t misunderstand it.

fair use

Not that copyright stories should hope to compete with the drama coming out of Washington these days, but it’s more than likely that copyright policy and news will now be viewed through that multi-faceted, jittery lens; and the political climate certainly provides new context for creating freshly distorted views on various topics.

For instance, today begins the 4th Annual Fair Use Week, a celebration of the fair use doctrine in copyright law; and I will not be surprised if various organizations and individuals seize upon what I’ll call our current reality crisis in order to remind us of the many ways—reportage, education, parody, commentary, scholarship—that the fair use principle enables creators to speak truth to power.

In recent weeks, the nation’s university and public librarians have stood shoulder-to-shoulder to form a bulwark against the plague of fake news and gross distortions by elected officials, and I certainly share a solidarity with that effort. But while it is true that many important creative and informative expressions are indeed supported by the fair use principle, it is also necessary that my librarian friends in particular (yeah, I have librarian friends) recognize that some of their allies in this celebration sometimes promote fair use messages and agendas that get a little alternative-factsy themselves. Add to this any number of casual references in blogs, articles, or editorials that describe uses of works as “fair” when they don’t implicate the doctrine at all, and it’s worth remembering that fair use bell-ringing also celebrates a fair amount of confusion about copyright law.

There is value, of course, in highlighting examples of expressions that have relied on fair use; it is one aspect of celebrating free speech. But in the digital age, invoking the principle has taken on a distinctly anti-copyright connotation, which is functionally absurd and often misleading in ways that can actually get independent creators into unnecessary legal trouble. (See posts here, here, and here.) Fair use does not exist without copyrighted works to use in the first place, and the fact that countless fair uses produce new works which may then be separately copyrighted ought to provide a framework for understanding fair use as a component of copyright law, baked into the federal statute since 1976.

At the same time, no serious copyright advocate is opposed to the fair use doctrine since it is in the interest of all authors, big and small, to have the opportunity to make fair uses at various times in their creative endeavors. In particular, it’s counterintuitive that fair use is often portrayed as anathema to the interests of the large rights holders—the big studios, publishers, and labels—when it is these mass producers who tend to rely heavily on both fair use and the idea/expression distinction in copyright in order to produce and distribute in great volume without chronic litigation.

I get why librarians and universities celebrate fair use and that they have their own tussles with copyright law. These views deserve consideration given the sincere, public-serving intent of most librarians and educators. But those discussions are not always allied with the interests of venture capitalists betting on various tech companies whose models require the exploitation of creative and informative works without the cost of licensing.

The Fair Use Narrative in Current Caselaw

Behind the PR messages aimed at the general public is a more subtle and complex story playing out in various cases, revealing a consistent effort to strain the intent of the fair use doctrine until some precedent-setting case can weaken, or even nullify copyright protection altogether. In fact, the narrative of the copyright “debate” today is partly driven by predatory and wealthy tech enterprises, seeking to exploit every weakness in a legal framework that never anticipated the scale, volume, or diversity of infringement that would become possible in the digital market.

Often these enterprises have no public-serving component whatsoever, as they seek—with the aid of “digital rights” groups like the EFF—novel interpretations of the fair use test that strain the expression-based intent of the principle. For instance, the site fairuseweek.org, with its many academic signatories—including my alma mater—features an infographic highlighting a business called TVEyes as one example of the doctrine at work. I sincerely doubt, though, that many of those academics and librarians have any idea what TVEyes actually does or if they know the status of the Fox v TVEyes case.

TVEyes is an expensive, subscription-only, B2B, news-monitoring service that operates by making copyrighted works available without licensing, and if its particular fair use claims are upheld, the precedent could be used to nullify authors’ rights, allowing nearly any technology company to freely exploit works for almost any purpose. That’s not what fair use was meant to enable. As a side note, oral arguments are scheduled for March 7 at the Second Circuit Court of Appeals; so at the very least, in the interest of accuracy, it might be better to delay citing TVEyes as an “example of fair use” until the case is settled.

By all means, we should celebrate fair use with the understanding that the principle was relatively complicated before the digital age and is far more complicated today. This complexity is both generalized in the PR messages influencing perceptions among general users and independent creators; and this complexity is highly specialized in much of the current caselaw as the courts seek to consider fair use in the context of large-scale technological uses, rather than in the more traditional author-to-author uses for which the principle was codified into law.

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VidAngel: A Litany of Copyright Defenses

Photo by rootstocks

VidAngel offers what is functionally a video-on-demand (VOD) service plus “filtering” for viewers who want to see mainstream fare with certain naughty bits—sex, foul language, violence, etc.—removed. To provide this service, though, VidAngel allegedly violates the copyright owners’ exclusive right of reproduction and public performance, as well as Section 1201 of the DMCA prohibiting circumvention of technical protection measures (TPM) used to encrypt DVDs.

Movie studios Disney, 20th Century Fox, Lucasfilms, and Warner Bros. sued VidAngel, and in December 2016, the District Court for the Central District of California issued an injunction, halting the defendant’s operations. The judge’s opinions in the order state that all arguments favor the plaintiffs’ likelihood of success on the merits.  VidAngel has appealed the injunction to the 9th Circuit where briefs were filed last week.

The Family Home Movie Act (2005)

As a frame of reference, if a consumer owns a feature film on DVD, a statute called the Family Home Movie Act (FMA), allows the use of technological means (e.g. a product called ClearPlay) to make limited portions of his disk “imperceptible” while playing it in a private viewing situation.  Designed for audiences who want to “filter” out scenes containing the aforementioned naughty bits, the FMA affords the viewer a limited right to use technology to achieve this “filtering” without infringing copyright.  (As a no-tech option, there is of course no limit to the amount a viewer may close his eyes, plug his ears, and sing La-La-La during those portions of a movie he finds offensive.)

We can debate whether or not “filtering” motion pictures is truly a right, but there is apparently enough of a market that wants to “filter” that the subject has at least been an issue.  For instance, the Directors Guild of America (DGA) was opposed to filtering technology like ClearPlay, claiming that editing the films violates the right of the author to disseminate a work as he sees fit, which is certainly true. So, the FMA was enacted as a legal compromise, written very narrowly to provide the home viewer with the ability to “make imperceptible” limited portions of legally-acquired DVDs.

Enter VidAngel

The CEO of VidAngel, Neal Harmon, reportedly grew up in a household where, for religious reasons, he was not allowed to watch a number of mainstream movies.  Remembering what it felt like to be culturally out of the loop, Harmon founded VidAngel in Utah in 2013—it is now headquartered in Silicon Valley—as a way to provide families in similar circumstances with a solution.  According to testimony, VidAngel approached the studios with their model; and the studios were not interested. There are any number of reasons why a film producer will be opposed to enterprise-scale “filtering” by a third party, and the studios were certainly under no obligation to engage in that endeavor.

Deciding to forge ahead, VidAngel developed a convoluted workflow and business model based on a bold legal assumption that the FMA allows the company to provide an unlicensed video-on-demand and “filtering” service while avoiding liability for infringement. The overly-complex model looks a lot like what it is:  an attorney’s Rube Goldberg attempt to circumvent copyright law. And although VidAngel wants to make this a story about the right of consumers to “filter,” launching the hashtag campaign #savefiltering, that debate has little bearing on the infringing nature of the VidAngel enterprise.

VidAngel’s Model/Workflow

VidAngel buys feature film DVDs, which they decrypt, digitize, organize, and store as “segments” that are tagged to facilitate “filtering” by pre-selected criteria (e.g. blasphemy). A customer uses the VidAngel app—available on Roku, AppleTV, Chromecast, etc.—to select among the criteria and create his “filtering” preferences.  Next, the customer “buys” a DVD from VidAngel’s inventory for $20—let’s say 1988’s Working Girl. But having filtered for nudity, he does not want to see Melanie Griffith vacuuming topless. (There’s a cleanliness next to godliness joke in there, but I’ll let it go.)

Most of the time, the customer doesn’t choose to receive the DVD he “bought”—it does still have the unwanted scenes, after all—but instead, he streams Working Girl, sans topless vacuuming scene, and then “sells” the DVD back to VidAngel for a refund minus $1/day for a standard-def stream ($2/day for high def). Note, the DVD never changed hands; VidAngel “held the DVD” for customer during the “buy-sellback” interval.

According to VidAngel’s testimony, 80% of the disks are “sold back,” so if this sounds like an absurdly complicated way to operate what is primarily a VOD service, that’s because it is overly complicated—and quite on purpose. Because what VidAngel is counting on is that during the brief period when the customer “owns” the DVD, that customer may then legally “direct” VidAngel to perform the same function he would otherwise be allowed to perform at home under the FMA.  That’s their theory anyway.

The fact that VidAngel markets its service as providing streaming for “as low as $1” belies its claim as a “reseller” of disks; and the fact that 80% of its customers “sell back” the DVDs seems  more than sufficient evidence to reasonably describe the core business as video-on-demand. But even if a court might agree that a VidAngel customer is temporarily the “owner” of the DVD, this should have no bearing in assessing VidAngel’s infringing activities; and their own workflow makes this clear.

VidAngel Infringes Before a Customer Exists

In order to prepare files for “filtered” viewing, the company has to decrypt a DVD and then make and store copies of entire films on its servers (i.e. in fixed form). For practical reasons, the company must perform these two infringing activities prior to any customer “buying” any disks. There is simply no other way to organize the workflow and provide the service they offer. Because the infringement against the owners’ right of reproduction, and violation of the DMCA, occurs before a customer becomes part of the workflow, VidAngel’s claim that it is shielded by the FMA on the grounds that they “filter” at the direction of a DVD owner is simply impossible. The only owner of the DVD at the time when decryption and copying are performed is VidAngel. Moreover, VidAngel has predetermined a set of criteria for “filtering,” and no matter how many possible permutations of a given film this may produce, the company has still acted to create a finite set of  “filters” it makes available to a prospective DVD owner rather than its claim to “filter” at the direction of an actual DVD owner.

Next, when VidAngel streams a movie, this constitutes a public performance in violation of another exclusive right protected by copyright.  Again, VidAngel puts its faith in the FMA, arguing that because they only stream a “filtered” version of a movie to the customer during the period when the customer “owns” the DVD, they are not publicly performing any more than if the customer himself were to engage in the same function at home using a legal “filtering” technology as permitted by the FMA.

Here, VidAngel appeals to the “spirit” of the FMA and not the statute, implying that Congress believed generally in the principle of “filtering” when it wrote the law. Whether this is true of Congress or not, VidAngel is asking the court for an extremely broad (dare I say, leap of faith?) interpretation of narrowly written legislation that does not allow a party doing the “filtering” to publicly perform a film beyond the confines of ordinary private viewing.   The FMA simply does not anticipate a model anything like VidAngel, which is exactly why the company is straining to create its own loophole in the law with its over-complicated pretense of “selling and buying back” DVDs.

VidAngel Claims Fair Use

Finally, VidAngel appeals to fair use doctrine, claiming that the “filtered” versions are “transformative” under the first prong, that the service is not a substitute under the third prong, and that the service does not create potential market harm under the fourth prong.  I suspect the appellate court will agree with the district court, which found that the fair use test favored the plaintiffs across the board; but it was the judge’s response to VidAngel’s fair use claim under the fourth prong that I find particularly revealing about the rationales being applied in VidAngel’s defense.  The court states:

VidAngel attempts to support their arguments by offering customer survey results that indicate that over 51% of VidAngel customers would not watch their offerings without filtering. The survey results are ultimately detrimental to VidAngels arguments. The fact that 49% of VidAngels customers would view movies without filters shows that VidAngels service does serve as an effective substitute for Plaintiffs unfiltered works, for approximately half of VidAngels users.

Not that attorneys for VidAngel aren’t on the ball, but they actually presented evidence to indicate that nearly half of VidAngel’s customers may be poached from the potential customer base of the rightful owners of the works.  That certainly seems like a good way to fail on the fourth prong of the fair use test, but the self-defeating oddness of this argument is consistent with the major theme running through this entire case:  that the overly-complex design of the VidAngel model reveals a strenuous, ham-handed, effort to thread the enterprise through the legal boundaries of copyright.  It is little surprise that the lower court found all of VidAngel’s arguments untenable, and it is hard to imagine that the appeals court will not sustain the injunction.

A Moral Enterprise?

Advertised in their promo video as “Movie Heaven,” VidAngel presumably targets a market with sincerely held religious beliefs, even though the first laws they seem to have overlooked are Commandments #8 & 10: Thou shalt not steal, and Thou shalt not covet, respectively.  For all the assumed piety in VidAngel’s “filtering” crusade, the company clearly feels no sense of moral conflict about its for-profit, unlicensed exploitation of the thousands of people whose labor makes the movies. In fact, it is notable that among the content a VidAngel subscriber may have “filtered” from viewing is the end credits listing the names of all those workers.  I’ll leave the moral rationalization of that to the operators of VidAngel themselves, but as far as the copyright implications go, it seems like they don’t know what the H-E-double-hockey-sticks they’re doing.

 

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Disruption achieved.  What now?

Photo by michaklootwijk

Returning to the generalization that the internet is the “best thing ever to happen to democracy,” I have to ask this:  if the proof of the pudding is in the eating, how do we like the soufflé so far?  Admittedly, the unprecedented scope of the Women’s March on January 21 would not have been possible without social media; but at the same time, I very much doubt that a candidate in the style of Donald Trump could have become president without social media, so I guess we’re going to have to live with that dichotomy.

Setting aside Trump’s policy agenda—to the extent that it is coherent—what I believe he represents above all was a vote of no confidence in the American system itself.  And to be honest, I believe Bernie Sanders’s campaign represented this for many people as well –albeit in a very different manner.  But what these two radically divergent, populists had in common was a message that the middle class is getting hammered because the system has failed.  It’s why the Sanders-to-Trump voter is not the contradiction it might seem; but I do find it at least worth pondering that the election of 2016 was very much A Tale of Two Angry Old Men.  Not that I discount Hillary Clinton by any means, but it seems as though the venn diagram that combines many swing votes in the electorate who would never vote for Hillary with those who reluctantly voted for Hillary shared that common complaint that the establishment itself is the problem.

And now that we’re watching Trump’s approach to “shaking up Washington” play out in an exhausting whirlwind of political heterodoxy, I can’t help but think about that youthful and ebullient mantra of Silicon Valley that preaches Disrupt Everything. Citizens across the political spectrum, fed up with the status quo on a wide range of social, political, and economic issues, either actively or passively endorsed this disrupt zeitgeist. Remember the old Facebook motto Move fast and break things that was echoed by the VCs and creators of tech startups?  Could that not also serve as the headline for Trump’s first weeks in the White House?

The cacophony of political theater and real policy proposals of the new administration has certainly been breathtaking, but it is also familiar territory to those of us who spend time scrutinizing the PR and policy aims of the internet industry. The disestablishment playbook of Bannon seems to share, one might say, substantial similarity with the disestablishment playbook of Google when that company opposes legal regimes like copyright law, privacy restrictions, anti-trust regulation, or even the notion of statehood itself.

Like the sledgehammer Trump wants to take to all regulation in order to supposedly “get business flowing again,” Google & Friends have repeated almost the same message to sell the idea that legal regimes like copyright are anachronisms standing in the way of innovation. The sleight of hand works well because the goal is vague.  That word innovation is no more clearly defined than the word great in Trump’s campaign slogan. But the spirit of disruption insists that we not discuss the nagging details about where we might be headed. It says that we must simply break things right away and have faith that benefits are sure to follow.

And I do literally mean faith.  Because an enthusiasm for mass disruption seems to come from a deep well of magical thinking. Whether this means an overtly theocratic agenda a la Bannon or an overtly technocratic one a la Google, both visions seem to share this one underlying message:  that many foundations of the American Republic (i.e. all things mainstream) are standing in the way of a bright future. It feels as though we are locking in a dismal choice between the catastrophe of a new, theocratic global order or the uncertainty of a quasi-democratic, technological, “leisure” society. Or perhaps some bizarre, dystopian version of the two.  Meanwhile, the AI technologists continue their race to bring about the singularity with the same determinist zeal that Steve Bannon exhibits about the prospect of a war with China. Are we truly that eager for self-annihilation? Again?  No wonder a reported 50% of these same technologists have invested millions on their survivalist backup plans.

Blind faith in information technology to preserve democratic principles is just that:  blind.  As I suggested in an older post, because social media has divvied us up according to our brand of outrage, it is helping to hollow out the political center, leaving a vacuum for autocrats (or technocrats?) to fill. It was just a few of years ago, when the Snowden story broke, and everyone became all leak-happy, that I criticized my progressive friends for looking in every direction for conspiracies and for putting too much faith in the illusion of transparency afforded by digital technologies.

We forget at our peril how fragile the American deal really is—that it’s nothing more than an idea we mutually agree not to destroy, no matter how much we disagree on specific issues.  As I wrote in response to this 360-degree conspiracy view, if we completely lose faith in all functions of government, it means we’ve lost faith in each other, which is the beginning of the end.  Michael Idov, writing for New York Magazine, provides a glimpse into his experiences living and working in Russia as a cautionary tale about what happens when that very fragile agreement does not exist—when trust itself is obliterated. In a description that reminds me of at least cybernetic America over the last several years, Idov writes:

“Russian life, I soon found out, was marked less by fear than by cynicism: the all-pervasive idea that no institution is to be trusted, because no institution is bigger than the avarice of the person in charge. This cynicism, coupled with endless conspiracy theories about everything, was at its core defensive (it’s hard to be disappointed if you expect the worst). But it amounted to defeatism.”

And that’s the underlying message being delivered 140 characters at a time from the Oval Office today—that not one institution can be trusted over the word of a single individual. It is a defeatist and dangerous message, but not one that was written by Donald Trump so much as it was exploited by him. We wrote the narrative ourselves. Feeling let down by the system, we went looking for saviors instead of leaders.

The detrimental effect of social media, feeding the illusion that this technology fosters real transparency, cannot be overstated.  The very significant phenomenon that some citizens sincerely believe that a presidential tweet is more honest and informative than the investigative work of a veteran journalist may seem mind-boggling, but it was an inevitable result of disrupting everything. And it is certainly not only Trump’s supporters who’ve bought into this idea that we can all be our own news sources now because the “mainstream” cannot be trusted. To the contrary, every day I see some friend on Facebook shake a head at the White House calling a verifiable fact “fake news,” but in the next instant, share some misleading headline from a questionable source.

We usually talk about the United States in terms of strength and rarely in terms of its fragility.  If that sounds “weak” to some, a reading of the Framers’ own words will show that they understood exactly how fragile the Republic is—that the moment it ceases to be a statesman’s debate about common purpose, we’re toast.  But honest debate cannot occur when we have to spend so much time disputing or proving the facts themselves.  Twenty years ago, we argued about what to do next, but not nearly so much about what had already happened.

As a general analysis, it is extremely hard to believe that we were not better off with a little less “information” and a little less “transparency.”  Because there is simply no denying the evidence that millions of us—right, left, and center—are operating with our own sets of facts and “alternative facts.” At the same time, it is also questionable whether or not any bi-partisan cooperation could ever happen under the gaze of constant public scrutiny.

It’s a little late now, of course. With the Executive adopting an authoritarian tone, and a party-line vote like we saw in the confirmation of a patently unqualified Secretary of Education, we’ve clearly crossed some threshold in the realm of sincere debate that is neither liberal nor conservative.  But this is what comes from an underlying loss of faith in the system itself and the chaos of the tech-enabled “direct democracy” that is, in many ways, an antidote to corruption but which is also highly vulnerable to corruption itself.

So, mission accomplished. We’re disrupted. “Big League.”  What’s next?

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Defending Copyright in the Context of Trump

photo by DevonYu

Well, here we go.  I’ve been waiting for this shoe to drop, and it looks like Josh Tabish, campaigns director for Vancouver-based OpenMedia, has decided to be among the first to throw a loafer. In an editorial for Wired, he warns that “the copyright barons” are coming now that Trump is in the White House.

It has a been a challenge, to say the least, to try to disabuse people of the notion that contemporary copyright enforcement really can coexist with a free and open internet and not stifle free speech. And that was while Obama was president—a left-of-center moderate who was very close with Google. But ever since Trump won, I’ve been waiting for the same anti-copyright narrative to dial the volume up to eleven because now we have a ballgame.  Stand by for a litany of articles and blogs under the theme:  See! All it takes is a draconian, right-wing president, and the copyright industry will get what they want and destroy the freedom-loving internet!!!!

So, let’s clarify one thing, in case it hasn’t been obvious so far.  I neither like nor trust Donald Trump. I think he’s probably unhinged and that his agenda, opaque as it seems, may well pose a legitimate threat to the foundations of the United States.  And certainly, there are bigger issues to worry about at the moment than copyright law. In fact, this is always true, which is one reason the IP Subcommittee of the House Judiciary used to be a legislative backwater gig that nobody really noticed. But now that internet giants have convinced millions of people around the world that copyright enforcement in cyberspace is tantamount to stifling everyone’s speech, copyright remains in the foreground of digital-age issues and, by association, it will be swept up in the broader narrative of whether or not the Republic itself is going to withstand the new administration’s brand of heterodoxy.

In response to a letter by The Copyright Alliance asking the president to support copyright law, Tabish cobbled together the standard narrative that a) copyright law is already too strong; and b) making it any stronger can only result in some form of censorship online.  He trots out all the usual talking-points, including favorite hits like DMCA takedown is chronically abusive, no enforcement regime can mitigate piracy anyway, and beware the hidden IP agenda of trade deals.  None of these assertions is sound—I’ve written extensively on all of them—and certainly none can be understood from a sentence or two in a short article.  But I imagine we’ll be hearing a lot more of this “beware copyright” message now that the age of Trump is upon us.  And I could not disagree with this premise more. Perhaps now more than ever.

Protecting Individual Rights

One of the reasons I defend copyright is that it is an individual right.  IP is in fact the very first mention of an individual right in the Constitution, and copyright was among the few rights an American could exercise, even before he/she had other rights.  Frederick Douglass registered his Narrative of the Life of Frederick Douglass, an American Slave in a Massachusetts Federal Court in 1845.  At a time when he and his fellow Africans were literally considered property by half the country—and were none too welcome by the other half—Douglass could legally declare the work of his own genius as his property.

I happen to think that’s significant and believe people should recognize its significance.  Today, the empowerment of copyright is almost certainly a core component in the career of your favorite activist, author, artist, or journalist. Or to put it another way, if you watched the inauguration concert, that’s a pretty good glimpse of what art looks like in certain countries without copyright laws. Kinda meh, right?

Copyright Is Non-Partisan

To be frank, most governance is non-partisan, and it’s unfortunate that the theater of mass media has aggravated our capacity to politicize even relatively neutral policy.  But that’s another discussion.  Copyright law is grounded in the earliest principles of the new nation, it has been wildly successful on balance, and it empowers some of our favorite products. There’s a reason copyright historically enjoys strong bi-partisan support and stands apart from other, far more contentious issues.  If nothing else, amid the chaos and angst we’re now enduring on so many policy matters, copyright is actually kind of a nice legislative oasis where Republicans and Democrats can and should be friends.

Realistic Proposals to Amend Copyright Law are Not “Maximalist”

Despite the chronic repetition of the pejorative maximalist, and the declaration that rights holders are so eager to enforce copyright online that they’re willing to censor the web, this simply does not square with any of the real policy being discussed. Most of it is rather nuanced, and although some of the changes could cost Google or Facebook some of their not-so-hard-earned cash, it’s a stretch to imply that any of it can really affect the day-to-day use of the internet by most of us—least of all any discussion or sharing of substantive material that can arguably implicate the First Amendment. Naturally, these details and developments will be the subject of future posts.

Focus on the Real Concerns

Ultimately, if the real worry is about the correspondence of the internet and civil rights, remember that the creative copyright owners—least of all the independent artists out there getting clobbered—don’t own big web platforms. If you have real concerns about online censorship in the age of Trump, don’t follow the publishers, record labels, and movie studios, follow the evolving relationship between the administration and the owners of the web platforms. I’m not accusing those ISPs of anything here, but that just seems like common sense, no?

The simple reality is that every industry, regardless of internal political views, has to figure out how to work with the administration and the Congress we have.  That includes the institutions represented by The Copyright Alliance, and it includes those represented by the Internet Association. The Copyright Alliance letter is a lot like all the other representatives who sent missives to the new administration from every industry in the country. It’s SOP and largely symbolic.

Politically motivated communicators like Tabish should recognize that his empowerment  is not sustained by “free” internet conduits alone.  That empowerment is financial and requires investment by organizations like Wired where his OpEd was published. These entities depend on copyright law to protect their investments, and this is no time for any professional author of anything to be shooting himself in the foot.  Expect this rhetoric to get louder in the coming months and years, but that won’t make it more true.

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