When Copyright Criticism Is Something Else

Photo by Tamagocha

A couple weeks ago, a comment on the Illusion of More Facebook page proposed that the Walt Disney Company was able to get its start in the 1930s because the story for the studio’s first animated feature film Snow White and the Seven Dwarfs was “in the public domain.”  I don’t mean to pick on one particular comment or its author, but there is a lot in this statement that reflects widespread misunderstanding about copyright law and how it works.

First, of course, is that most references to Disney are inspired by the almost universally-believed narrative that the Disney Company was directly responsible for extending the U.S. copyright term in 1998 to its present duration.  Hence, I assume the comment was meant to reveal a hypocrisy—namely that Disney needed access to the public domain that today’s creators don’t have—and they don’t have it because of Disney!  Indeed, that could be reason for outrage, if only it were true.

Disney Did Not Write the Sonny Bono Copyright Term Extension Act 

Although, Representative Sonny Bono would eventually become a co-sponsor and strong supporter of H.R. 2589, the legislation did not begin with him. The law bears his name as a posthumous honor bestowed after Bono died in a skiing accident, which occurred two months before the bill was first debated by the House Judiciary Committee.

Nevertheless, the internet loves a scandal and so helps keep alive the myth that Bono personally walked the halls of Congress with pockets full of Disney’s cash charged with the task of extending the copyright term to protect the Mouse. Disney was certainly among the rights holders who lobbied for the term extension, but they were one of many and do not appear to have played any special role or to have spent extraordinary campaign sums relative to typical expenditures or other rights-holding petitioners.

When the U.S. finally joined the Berne Convention Treaty in 1989 (a treaty that began in 1886), this mandated the change in our copyright terms from a fixed 56-year duration to life-of-the-author plus 50 years.  Then, as Europe moved toward formation of the EU (1992), that alliance mandated that all partner nations amend their copyright terms to life plus 70 years. In response, the U.S. Congress proposed the same terms in order to maintain parity in trade. And that was the main impetus for the term extension.* It’s not as dramatic a story as Mickey Mouse button-holing Members of Congress in the Rayburn Building, but it’s a digest version of how things actually happened. The SBCTEA passed with solid, bi-partisan, bi-cameral support and was signed into law by president Clinton in 1998.

Was Disney Relying on the Public Domain with Snow White?

Sorta, but not really.  Because the Brothers Grimm were collectors of tales that were part of an oral tradition, it’s a little difficult to view their works through a modern copyright lens and know which elements might arguably have been part of the commons at the time. Regardless, a hypothetical copyright could be granted for their unique telling of a particular tale, and this would apply to the story entitled Snow Drop, which is the underlying work that became Disney’s Snow White and the Seven Dwarfs.  But even if we were to imagine a copyright in that work under current terms, then it would have expired 70 years after Jacob Grimm’s death, which brings us to 1933—four years before Disney made the movie.

So, yes, the story of Snow Drop was in the public domain at the time, but not in the way the commenter—or indeed most copyright critics—mean when they seek to argue that contemporary terms are onerously long.  The general assumption is that in 1937, Disney had a richer and deeper well of material to build upon than contemporary creators have at their disposal, and that Disney then used copyright law to close the proverbial door behind them to keep everyone else out.  While it may seem intuitive that copyright’s current terms would stifle the growth in works since 1998 (or some think since 1790), that belief is not supported either by statistical or anecdotal evidence.

Disney May “own” Snow White, but They Don’t Own Snow White

Feeding this false narrative is the idea that copyright “locks up” works for long periods, keeping them out of reach of new creators.  Although nearly every author will confirm that building upon existing works, ideas, tropes, themes is part of the creative process, this fact is not so greatly in conflict with copyright’s boundaries as many a non-creator pundit would have us believe. And Snow White is as good an example as any.

A creator—whether Disney or anyone else—may only copyright a unique telling of this classic tale.  Ditto The Little Mermaid, Beauty and the Beast, Pinnochio, and many other titles in the traditional Disney oeuvre.  The studio may only copyright its versions of these stories; and for Disney, the most valuable aspect of their work is often the pictorial, graphic, or sculptural (PSG) interpretations of the classic characters (see Disney merch).  But the relevance of the idea/expression distinction here is, I suspect, overshadowed by a different phenomenon, which is really a complaint about market dominance.

One could argue that the “Disneyfication” of classic tales can have a homogenizing cultural effect because the company’s vast resources enable, for instance, a single interpretation of Snow White to dominate popular imagination for generations. This is a valid criticism or conversation to have, but it’s one about American culture, business, and marketing that isn’t really influenced by copyright terms as much some may assume. Nevertheless, I suspect responses to these cultural or aesthetic criticisms tends to color the copyright narrative, particularly when invoking Disney.

If anything, copyright only helps to mitigate creative homogenization by disallowing unlicensed copying of what some may view as corporatized versions of stories and characters. As Harvard scholar Joseph P. Fishman pointed out in his study in 2014, boundaries like copyright tend to be generative for creators, while too much freedom to copy can actually stifle originality. Creators don’t really need a study to know this is true; they can tell you this from experience.

What About the Comics?

Moving on to a different part of the Disney organization, we have the Marvel franchise.  These more contemporary works comprise characters and narratives that many people believe belong in the public domain because they are so ingrained in common culture that it feels like these classic heroes and villains belong to all of us.  But one aspect of this idea that is often overlooked is that these characters attained that place in our hearts and minds because they were controlled franchises.

If you were a Daredevil fan growing up, you didn’t wait with anticipation to hear what your friends thought should happen next, you waited for the next issue to see what really happened next.  Without this common experience shared by fans, Daredevil would not have become a staple of the Marvel universe—and neither would any other character.

The assumption promoted by copyright critics is that when Daredevil falls into the public domain, this will spawn new, innovative ways to build upon the character for more creators.  Perhaps, but not necessarily.  As noted in an earlier post, even with PD works, we tend to see that one version at a time emerges for a period because the market only sustains so many variations at a time.  The example I cited previously is that it would be tough to compete right now with the Sherlock Holmes TV series starring Benedict Cumberbatch; and this is true for reasons having nothing to do with copyright.

So, it seems that a lot of copyright criticism, in certain contexts, is tangled up with aesthetic or emotional sentiments associated with popular and famous stories and characters.  There will always be consumers who don’t like the way a popular work is treated, even by its original creator. Just look at Star Wars. For every ten million fans, there are a hundred million opinions about what George Lucas did, or should have done, with his franchise.  But it was his franchise. If you want to decide the fate of a new multi-billion-dollar franchise, you’ll just have to invent your own.  And as many readers know, that’s exactly what Lucas did when he couldn’t get the rights to make Flash Gordon. 

*As a colleague noted since publication, there was more to this than trade harmonization; but without enumerating the various terms of copyright for different works, suffice to say that it still wasn’t about Disney and Mickey Mouse.

Posted in Copyright, Digital Culture | Tagged , , | 4 Comments

On the SCOTUS Cheerleader Uniform Ruling

Last week, the Supreme Court ruled in a copyright case that addresses the principle of “separability.” This is one of those areas of IP that a colleague of mine would call the “metaphysics of law,”  and that’s not a criticism.  In fact, I happen to think the more subtle aspects of copyright—the ones that challenge judges to weigh esoteric ideas like “art” or “originality” are actually part of the fun for nerds like me.

At issue in Star Athletica v. Varsity Brands are designs for cheerleader uniforms.  Both Star and Varsity make these uniforms, and when Star apparently copied some of Varsity’s designs, Varsity sued for copyright infringement.  But fashion is not protected by copyright, you say.  And that’s true. Mostly.

Clothing is a category of what the law calls “useful articles,” and as a rule, we do not want copyright’s exclusive protections to stifle the production of everyday items like clothes, furniture, coffee mugs, and earbuds. In the case of wardrobe or fashion, for instance, one may not copyright the shape or cut of a dress or pair of pants.  One can easily see how this would choke an industry of producers making garments for customers who generally conform to a consistent humanoid structure.  It’s why every fashion maker, from couture to K-Mart, can offer the market a version of the proverbial “little black dress.”

Separability considers whether or not a “pictorial, graphic, or sculptural” (PSG) work, which would be eligible for copyright protection, can be imagined as separate from the useful article.  For instance, in the world of fashion, a designer may create a copyrightable, abstract design that is then reproduced as a textile, which is then used to make a skirt.  Because that textile design is protected by copyright, and because one of the exclusive rights of copyright includes “the right to reproduce the work in or on any kind of article, whether useful or otherwise,” this is one way in which a clothing designer can, in a limited way, copyright fashion.

Because the designer may not copyright the actual cut, shape, or materials used for the skirt itself, the two interests are balanced.  The “useful article” is still free to be copied by anyone, but an article that copies the protected work of art may only be used by license of that creator.  Clearly, the protectable design is understood to exist separately from the article of clothing and can easily be imagined reproduced in some other form—as decorative art, wallpaper, coasters, mousepads, etc.

This example seems the most instructive in understanding the rationale applied by the majority in Varsity, although the consideration is very subtle to the casual observer for two reasons:  1) the designs used by Varsity are only marginally original—stripes, chevrons, and such; and 2) because it is a little difficult to imagine these designs in any context other than cheerleader uniforms, which are unquestionably “useful articles” not protected by copyright.  Justice Thomas explains the second of two prongs applied in weighing separability thus:  “The decision maker must determine that the separately identified feature has the capacity to exist apart from the utilitarian aspects of the article.” The majority opinion states …

“… if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium—for example, on a painter’s canvas—they would qualify as ‘two-dimensional . . . works of . . . art,’. And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself.”

The crux of the dissenting opinions of Justices Breyer and Stevens holds that these designs cannot reasonably be perceived as separate from the uniforms. The dissenting opinion states …

“Were I to accept the majority’s invitation to “imaginatively remov[e]” the chevrons and stripes as they are arranged on the neckline, waistline, sleeves, and skirt of each uniform, and apply them on a “painter’s canvas,” ante, at 10, that painting would be of a cheerleader’s dress. The esthetic elements on which Varsity seeks protection exist only as part of the uniform design—there is nothing to separate out but for dress-shaped lines that replicate the cut and style of the uniforms.”

Justice Ginsberg concurred with the majority judgment but not with its opinion, stating that in her view, it was not necessary to consider “separability” in this case at all. “Consideration of that test is unwarranted,” she writes, “because the designs at issue are not designs of useful articles. Instead, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles.”  In Ginsberg’s view, because Varsity’s designs begin first as illustrations that are protectable by copyright, then the right extends to the reproduction of those works onto uniforms or anything else, as would be the case in the textile example I presented.

How Significant is This Case?

Mike Masnick at Techdirt offers his own analysis along with his concerns that it could be “potentially very dangerous to a variety of innovations.” In particular, he refers to the growing market for 3D printed “useful articles,” but I suspect Masnick’s fears are unwarranted because I believe he errs in two ways—one historical, the other analytical.  With regard to the former, it remains to be seen how instructive this decision really will be to future cases weighing “separability.”

Although Justice Thomas states that the Court granted cert in Varsity “to resolve widespread disagreement over the proper test for implementing §101’s separate-identification and independent-existence requirements,” this case is also the latest in a very long narrative of American intellectual property law, going back to at least the mid-19th century when the courts were weighing decisions that helped clarify distinctions between patent and copyright. These specialties were a little blurrier in the first half of America’s first century.

For instance, in the 1865 case Baker v. Selden, the author of a book describing his own accounting system (it was really his widow) pursued a judgment that would have exceeded the purview of copyright because the claim was seeking protection for the accounting system itself.  If anything, the Baker accounting system might have been granted a patent (and it wasn’t), but the Supreme Court affirmed that a copyright in a work, like a book, “…does not extend to any  ‘procedure, process, system, method of operation’ embodied in such works, any more than to any ‘idea,…principle, concept or discovery’ in them.”

Here, I am partly quoting a 2004 paper about Baker v Selden, written by law Professor Pamela Samuelson at UC Berkeley, in which she notes that the same question of copyright’s limitation in Varsity goes all the way back to this case. She writes, “Baker also lives on in the statutory rule that denies copyright to pictorial, graphic, or sculptural works having functions beyond conveying information or displaying an appearance (e.g., clothing and chairs),as well as in the rule that copyright in a drawing does not create rights in useful articles depicted therein.” (Emphasis added)

As a scholar who leans more toward limiting copyright, Professor Samuelson may disagree with the opinion in Varsity (I cannot speak for her), but I cite her paper to emphasize the  historical context for these considerations.  Suffice to say that when we get into the separability of copyrightable elements in useful articles, we’re deep into the metaphysics of IP law; and future courts may continue to wrestle with this same question on a case-by-case basis regardless of the majority opinion in Varsity.

Can This Ruling Be “Dangerous” to 3D Printing?

There may be some way in which this decision will adversely affect some future innovation in the 3D printing world, but if this is true, I think Masnick needs a better example than the one he chose for his analysis. Citing a product called the “Birdsnest Eggcup” by designer Studiogijs,  Masnick labels the test applied in Varsity as a “copyright first” approach to separability, which he contrasts with his own notion of a “useful first” approach. He then signifies the difference between the two by asserting that the former produces more copyrightable elements than the latter and that this greater mass of copyright, if you will, is where the potential danger lies for innovation in 3D printing.  I think this analysis is flawed.

Masnick suggests that, by applying the test used in Varsity, separability would insist that the egg cup could be deconstructed into individually copyrightable parts. He is correct to say that the Court would allow the useful article to be deconstructed to the point of uselessness under it’s test, but I believe he is incorrect to suggest that any copyrightable work may be substantially deconstructed into parts that are each individually protectable by copyright.  One may not, for instance, break a novel into separate phrases and then copyright each phrase.

The arrangement of elements is an essential aspect in assessing “originality” under copyright, and the idea/expression distinction (which also harkens back to Baker) is why another creator is free to make and sell a different birds nest egg cup as long as it is different enough from the one made by Studiogijs.  At least that’s true insofar as copyright is concerned.  (Studiogijs may be eligible for a design patent in this case, but I am unfamiliar with the boundaries of that area of IP; and it is not germane to the SCOTUS ruling in Varsity.)

Studiogijs “Birdsnest Egg Cup

The egg cup, with its arrangement of branches and perched little bird, could easily be copyrighted as a sculptural work regardless of whether or not it is ever marketed as a “useful article.” Additionally, the design could be reproduced in some other form, for example as a 2D illustration and printed on coffee mugs to go with the breakfast set. This does not mean, however, that each branch, or segment of the original work could be protected by copyright in an actual litigation.

This is because the bar of minimal originality is counter-balanced by the fact that the less original (i.e. more minimal) a work is, the more subtly distinct a similar, subsequent work can be without infringing.  In the Varsity case, this means that Star Athletica should be able to make designs that are quite similar, but not identical, to Varsity’s uniforms because Varsity can only claim copyright in its precise arrangement of commonly-used design elements.  The same principle applies to the birds nest design whether it’s useful as an egg cup or not.

Or to look at this in context to Masnick’s notion of a “useful first” test, the egg cup could utterly fail in its marketed purpose to hold eggs, and that fact would have no bearing on the copyright in the object as a sculptural work.  In fact, a competing designer could theoretically make a birds nest egg cup that customers find functions better as an egg holder and so threatens Studiogij’s market.* And if Studiogijs chose to pursue a copyright claim in response, it could not hope to assert multiple copyrights in each design detail of its product.

Instead, the court would compare and contrast the two sculptures as whole works to determine the amount of similarity that the second bears to the first; and separability would probably not even be an issue in the case.  In this regard, I fail to see where the concern lies that Masnick is raising.  Nothing in copyright, before or since this ruling, would prevent another 3D producer from making a different egg cup that looks like a bird’s nest, and which competes with Studiogij, as long as it does not copy Studiogij’s design.  This is well-travelled copyright territory.

Finally, for what it’s worth, I think the elegance of Justice Ginsberg’s opinion in the Varsity case should help allay fears about the effect this ruling might have on future innovation.  Her view that Varsity’s design work was copyrightable and then reproduced onto useful articles applies to the birds nest egg cup; and it would apply in so many probable scenarios in which form meets function, that I doubt we will see a measurable increase in new barriers no matter how “useful articles” are made.

* NOTE: This is all hypothetical, nothing I’m saying in any way implies a review of Studiogij’s product.

Posted in Copyright, Law & Policy | Tagged , , , , , , | 2 Comments

ISP privacy rules. What’s next is what matters.

Photo by onephoto

If we merely politicize the issue of privacy, we’ll never have any.

When my first kid was born, I didn’t even have an internet account yet.  But somehow, multiple advertisers knew that there was a new baby because we were inundated with direct mail offers for every infant-related product under the sun.  Within a couple of years, I joined millions of Americans who got online for the first time and was present in more than a few meetings with advertising wonks talking about how much more effectively they would be able to “target” consumers via the web. These discussions invariably included a lot of speculation about how much privacy consumers would be willing to give up for the sake of convenience or savings.

It turns out we were willing to pretty much abandon privacy, but not quite in the way it was being discussed in the early 90s.  Instead, Web 2.0 evolved differently from the way it was imagined in those days, and I think it’s fair to say that for many people, using the major online platforms is only barely optional.  Shop online without Amazon, have a social media presence without Facebook, or do any number of things without Google?  Not likely.

So, rather than make conscious choices to allow platforms to harvest and sell data about our online activities, I think we just passively accepted or ignored this reality for the sake of using platforms and apps.  Who really reads Terms of Service or pauses to seriously contemplate that opt-in moment when an app wants access to various data?  And with mobile apps, opt-in is typically not optional at all; it’s either integrated with some amount of personal data, or it just doesn’t work.

Of course, it’s no surprise that the internet lit up with headlines decrying the GOP’s overturning the ISP privacy rules that were put in place under Obama’s FCC Chairman Tom Wheeler.  And there’s no question this is an issue to watch, but I predict that nobody really will watch it as long as it remains politicized through an Obama/good v. Trump/bad lens.  Because let’s cut to the chase here. Under Obama, we did not really address online privacy in any meaningful way.  Under Trump, we may continue to drop this ball, but for the moment, let’s at least try to keep our eyes on the ball and watch where it goes.

Ultimately, if we hope to have any kind of substantive privacy regulation, then consumers need to be shielded from certain practices conducted by both ISPs and “edge providers,” meaning platforms like Google and Facebook.  During the Obama administration, NetNeutrality rules placed ISPs under the ambit of the FCC while the “edge providers” remained governed by the FTC.  Then in October 2016, Chairman Wheeler introduced the privacy rules — rules different from those governing edge providers — for ISPs, which were just overturned, resulting in much scorn and fear.

The headline issue for consumers is that the ISPs can now sell your data without permission.  This is true. But with or without this rule, Google and friends have been free to sell your data without permission for years—and they have certainly been doing so.  According to FCC Chairman Ajit Pai’s own testimony, the discrepancy between ISP rules and edge-provider rules were at the heart of his initial criticism of the rules proposed by Wheeler last October.  Pai has stated that he agrees with the goals of privacy regulation but that he was opposed to having two separate and inconsistent set of rules governed by two different agencies.  I noted this in a previous post citing Pai’s dissent over adoption of that proposal.

So, what now? 

It seems to me that if we actually care about privacy—and I’m not entirely convinced we do—that it’s what happens next that really matters.  Does the FCC, and the GOP leadership, stop here, merely eliminate the ISP rules and move on? Or does Chairman Pai live up to the promise inherent in his past criticism and seek to forge new and better protections that uniformly govern both ISPs and edge providers? It could certainly go either way, but my cynical prediction is that consumers will continue to read this story through the lens of politics and (frankly) a fairly lazy press, while both ISPs and edge providers do whatever the hell they want with our data.

I see a lot of comments stating that an important distinction to make is that we have a choice to use one platform or another but no choice other than to connect to the internet via a single ISP—often one ISP in a particular market.  This is true to an extent, but I have to say that it also seems like a self-soothing delusion to suggest that the world of edge providers is filled with choices.  Google dominates search and a massive share in mobile, and there is only one Facebook.  Are you planning to abandon either platform for the sake of privacy? And what happens in a market where a platform like Google becomes both ISP and edge provider?  Which rules govern privacy then?

Moreover, as Pai observes in his dissenting opinion, people connect via multiple ISPs throughout the day; but that doesn’t mean our online activities are not identifiable by edge providers no matter where we go.  Log into your Google account, Facebook, or Amazon, and it doesn’t really matter whose WiFi or mobile service you’re using in that moment—you’re visible as you; and all of these platforms are collecting and selling data about you.

As stated in other contexts, the web we have is not driven by altruistic principles like freedom, sharing, and speech; it’s driven by advertising and data mining.  That the ISPs want to share the market with the edge providers is not in itself unreasonable. But the entire ecosystem should be subject to uniform privacy protections for all consumers.  Chairman Pai may indeed fail to pursue his stated intent to achieve that goal, but it seems to me that’s the agenda to watch.  Certainly, we’re unlikely to achieve effective regulations by “debating” the issues through the fog of politics and scary headlines.

Posted in Law & Policy, Privacy | Tagged , , , | Leave a comment

Supreme Court Will Not Hear Capitol v. Vimeo Case

Photo by Nagornyi

The Supreme Court has denied cert in the case of Capitol Records v Vimeo, leaving in place the holding of the Second Circuit Court of Appeals that video-hosting site Vimeo was shielded by the “safe harbors” of the DMCA when the service and its users made infringing use of sound recordings fixed prior to February 15, 1972.  In general, this is a victory for the internet industry, parties who favor “safe harbors,” and parties who disfavor copyright; but there’s a lot more to this story than meets the eye.

On the surface, we have Vimeo users lip-synching to famous songs by The Beatles, Beach Boys, etc. and posting their videos.  Harmless fun.  What’s the big deal?  The big deal in this case—and not only in this case—is that prior to the 1970s, U.S. copyright law was partly a patchwork of state laws. Among the goals of the 1976 Copyright Act was to federalize nearly all of copyright under a single, uniform system.

Concurrent with these developments was the addition of sound recordings to federal protection in 1972, but for reasons that remain unclear, Congress left recordings fixed prior to Feb. 15, 1972 under the protection of state laws with everything after that date covered by federal statute. In 2011, the USCO filed a report requested by Congress on proposals to absorb pre-72 recordings into the federal system in which the Register states, “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.”  In fact, these pre-1972 recordings are the only category of copyrightable works subject to this kind of exception, and it goes without saying there were a lot of still-valuable sound recordings made before this date.

At issue in the Vimeo case was the question of whether or not the liability shield provisions in the DMCA (§512 of the federal copyright law) apply when the work allegedly infringed is a pre-1972 sound recording. Proponents on the internet side say that it should be obvious that the DMCA was intended to apply universally, and that’s more or less what Vimeo argued and what the Second Circuit concluded. Unfortunately, it’s not that simple.

Although this is arguably a problem for Congress and not the courts, the fact remains that the ruling as it stands leaves the rights holders of these recordings in copyright limbo—or perhaps copyright purgatory.  As noted in an earlier post, citing the work of Stephen Carlisle, owners of pre-1972 recordings are trapped between §301(c) and §512 of the Copyright Act, with the former explicitly stating that their works are not protected by federal statute but the latter interpreted by the Second Circuit to mean that they are limited by federal statue from enforcing their rights against an ISP.

The technological developments during the 22-year gap between passage of the Copyright Act and the DMCA have created this disparity, and Congress should probably fix it.  As mentioned, the proposal to fold this class of sound recordings into the ambit of the federal statute and the above-cited report by the USCO favors this approach.  In fact, the report cites that the beneficiaries of this change would include librarians and archivists, who are frequently at odds with copyright.  “While many librarians and archivists are dissatisfied with the scope of the federal statutory privileges enjoyed by libraries and archives, these exceptions and limitations (sections 107 and 108 in particular) provide more certainty and, in general, more opportunity than state laws to preserve and make available sound recordings from many decades past,” the Register’s report states. This report further argues that the primary concern of the rights holders of these recordings (i.e. creating new ambiguities) could be remedied by properly articulated statute.  For now, the decision of SCOTUS to decline hearing Capitol Records v. Vimeo leaves in place considerable ambiguity, and perhaps this will prompt further efforts to petition Congress to unify all sound recordings under a single system.

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The EFF is Full of It on Indie Register of Copyrights

Photo by GlobalIP

Okay.  I’m not remotely surprised that the EFF & Co. don’t like the bill H.R. 1695 to make the Register of Copyrights a presidential appointee rather than an employee of the Librarian of Congress.  And I’m way not surprised that they’ve written a post which only thinly veils this bill as a power grab by the Trump administration. This despite the fact that the proposal dates back, on paper, to at least 2014 and well before that in general discussion among copyright experts.

I won’t repeat the historic context I’ve already written to explain why this legislative move makes sense, but instead I have selected some choice pull-quotes from the EFF’s post because, well…I just can’t help myself.

EFF:  The Copyright Office is supposed to focus on a pretty mundane but important job: registering copyrightable works….In the past decade, however, the Copyright Office has played an increasingly central role in policymaking…

Bullshit.  Sorry there’s just no other way to respond to this.  Although the Copyright Office was created within the Library of Congress in 1897 in order to serve a largely clerical function, even the first Register, Thorvald Solberg, was a respected expert on copyright law and played a role in helping to craft the 1909 Act.  Every Register since has performed an advisory function to Congress, the courts, and the public; and the USCO has grown in size, scope, and dimension commensurate with the growth in complexity of copyright law and the wide range of media production and distribution capabilities.

The EFF acknowledges that the USCO does not make copyright policy, but instead suggests that making the Register an Executive appointee will only make the Office more vulnerable to special interests.  This, despite the fact that, the EFF has been party to smearing the USCO as already beholden to “special interests” under the current organizational regime.  As they repeat in this post …

EFF: – and it has not been a neutral advocate.

Here, the EFF is citing a “report” published by PublicKnowledge that provides no statistical data to support the conclusion that the USCO has fallen prey to “regulatory capture” by major rights holders.  Instead, the report cites anecdotal “evidence” comprised more of opinions than substantive debate.  For instance, they repeat…

EFF:  For example, one former Register famously stated, “[c]opyright is for the author first and the nation second.” 

She did say that. And she was absolutely right. And only detractors like the EFF made the statement “famous.”  As explained in this post, the Register was on solid ground, both with regard to functional common sense (i.e. the public doesn’t get what the author doesn’t first create) and with regard to philosophical precedent for the IP clause in the Constitution.  This is just the anti-copyright crowd leveraging a general lack of historical knowledge to manufacture a conflict that doesn’t exist.

In sum, we’ll have a Register, and a Copyright Office, that is accountable only to the President and the special interests that helped get them approved in the first place.

This may be my favorite because, as mentioned, it’s seeking to trade on current contempt for the Trump administration in order to rally protest against this bill.  What’s particularly amusing about this one is that the most common “villain” in the copyright battle is Hollywood; and in case anyone hasn’t noticed, Hollywood isn’t exactly BFFs with the new president.  At best, one might call the relationships between this White House and many industries, including Silicon Valley, “complicated.” So, let’s try to assess policy on the merits where we can, shall we? The rationale for making the Register of Copyrights an Executive appointee is solid, it’s the result of years of consideration, and it will remain sound policy no matter who occupies the White House.

Posted in Copyright, Law & Policy | Tagged , , | 5 Comments