Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

EFF Observes (Anti) Copyright Week

So, it turns out it’s Copyright Week.  I had no idea, and it’s already Copyright Hump Day. What with the government shutdown, the Barr confirmation hearings, the litany of breaking stories in the Russian-interference investigations, I just didn’t notice.  But then I saw a post by the Electronic Frontier Foundation recognizing Copyright Week, including an obligatory “SOPA lead” as recommended in the IOM Guide to Critiquing Copyright in the Digital Age.  Because, of course, for the EFF, it’s Anti-Copyright Week.

Initially, I thought there is no way to respond to the EFF’s post other than a) citing dozens of thoughtful experts who know how copyright works; or b) quoting the eminent attorney Vincent (Joe Pesci) Gambino’s entire opening argument in the murder trial of his cousin:  “Everything that guy just said is bullshit.”*

But that prompted a different thought.  After more than six years banging out this blog, I feel confident about saying that there are two very different kinds of copyright critics in the grand debate; and unfortunately—because any area of law is usually arcane for most of us—it is the least honest critics who wield the most public influence.  In yesterday’s response to Professors James Boyle and Jennifer Jenkins, you won’t find me accusing them of dishonesty, only questioning their ideas.  But with the EFF, Public Knowledge, Fight for the Future, Cory Doctorow, and Mike Masnick, it’s a different story.  These voices consistently misrepresent the law and history in the service of their policy agendas.

This latest post by EFF is PR disguised as copyright criticism—comparable to health information sponsored by Big Tobacco or environmental reports funded by Big Petroleum. There may be kernels of truth, but they are well hidden in a fog of obfuscation and outright falsehoods.  Here are a few classic examples featured in the five main topics EFF says it is focusing on this Copyright Week:

Monday: Copyright as a Tool of Censorship. Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act as a legal cudgel to silence it.

You will not find a remotely-qualified copyright advocate who does not criticize the misuse of copyright to remove, or otherwise silence, material that is not properly the subject of copyright infringement.  Yes, people who don’t know what they’re doing abuse systems like the DMCA notice & takedown procedure in order remove material they should not.  The irony here is that the EFF is often responsible for the kind of copyright confusion that leads to a variety of mistakes online.  This is a classic example of the anti-copyright crowd’s “few bad apples” approach to public policy, advocating that the exception should change the rule.  Because here’s a pro-tip:  it is really hard to find a copyright-owning artist who is opposed to freedom of expression.

Tuesday: Device and Digital Ownership. As the things we buy increasingly exist either in digital form or as devices with software, we also find ourselves subject to onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it–meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.

Here, the EFF refers to Section 1201 of the DMCA and its non-circumvention protection of the copyrighted software that runs devices and machines.  What they tend not to mention is that this is a much more complex conversation that extends way beyond the realm of copyright.  For instance, “tinkering” with tractors and other machines has environmental and safety implications that are the purview of federal regulatory bodies that have little to no relationship with the U.S. Copyright Office.  

Sure, the products we buy belong to us, but that doesn’t mean we get to disable catalytic converters or safety features; and even where the right to “tinker” may seem reasonable, copyright may not be the legal barrier in play. Your beef could be with the DOT.  Relatedly, the EFF fails to mention that the Copyright Office has generally agreed with petitioners seeking to circumvent TPM for research and other types of fair uses.  On TPM and 1201, EFF is often guilty of committing lies of omission in order scapegoat copyright; and this includes failing to mention that, absent these provisions, popular means of consuming creative works on digital devices would not exist.

Wednesday: Public Domain and Creativity. Copyright policy should encourage creativity, not hamper it. Excessive copyright terms inhibit our ability to comment, criticize, and rework our common culture.

Granted, the word “excessive” is an opinion and not a false statement.  Though, as pointed out numerous times, including in yesterday’s post, nobody has yet demonstrated with empirical data that current terms are doing any harm to creativity.  To the contrary, creative activity—both amateur and professional—has grown since passage of the CTEA in 1998.  Still, in the body of the EFF post, it says the following:

“In an example of how large media and entertainment companies successfully make copyright laws for themselves, they prefer to have control of things long after the people who actually created them have passed away. They successfully lobbied to have the term of copyright extended, essentially keeping the public domain from growing for decades.”

THAT is a lie.  Yes, the big studios et al did favor the 20-year term extension of 1998, but it was not remotely a law they “made for themselves.”  This is a matter of record, and you can even can look it up using this thing called the internet.  The U.S. term extensions were solely a matter of America catching up with terms adopted, in some cases more than 100 years ago, by European and other trading nations. The EU added 20 years in 1993, so the U.S. did likewise five years later.  I know it’s boring because there’s no villain in that story, but that’s how it happened.

Thursday: Safe Harbors. Safe harbor protections allow online intermediaries to foster public discourse and creativity. Safe harbor status should be easy for intermediaries of all sizes to attain and maintain.

Apropos what I just said about the term extension, Section 512 of the DMCA was a copyright provision the online service providers “made for themselves,” and in the late 1990s, when AT&T, Verizon, et al sought this liability shield it was not an unreasonable request.  But during the two decades since that time, platforms like YouTube (speaking of corporate giants) have been at liberty to monetize the unequivocal and chronic infringement of copyrighted works solely because of the “safe harbor” provision.  And every attempt to correct that aberration of Section 512’s original intent has been met with hysteria by the EFF and others, declaring that the internet will break, free speech will die, and other tales of terror.  And, ironically enough, that brings us to EFF’s Friday bullet point …

Friday: Filters. Whether as a result of corporate pressure or regulation, overreliance on automated filters to patrol copyright infringement presents a danger to free expression on the Internet.

You know what’s funny about EFF’s (and others’) shuddering at the prospect of “filters” to identify copyright infringement?  It was exactly what the OSPs proposed in the 1990s as a counter-balance to the aforementioned safe harbors they were seeking!  I’ll take the liberty of paraphrasing, but they essentially said, We should not be responsible for our users’ infringements, and if granted this liability protection, we will work to develop technical measures to weed out and mitigate infringements.  That’s not just my opinion. As a direct result of the OSPs’ reference in this regard, Congress fully expected rightholders and service providers to collaborate to develop “standard technical measures.”

But now that we’re more than 20 years down the road, and the major internet platforms are insanely wealthy and powerful, the technical measures their OSP forebears proposed (and which were never implemented, by the way) are now deemed by EFF et al as a threat to the internet and free expression.  And not surprisingly, some of those chickens are lately coming home to roost, as we see the paragons of digital-age creativity—the YouTubers—discover that they don’t really like their work being ripped off either. And so YouTube responded how?  By implementing a new technical measure called Copyright Match.

If you’re looking for a competition of ideas on copyright, then read the various scholars who debate its core principles and mechanisms.  If you’re looking for basic facts, check the Copyright Office website.  And if you’re looking for PR messaging that misleads, confuses, and frightens the hell out of people for no reason, then by all means the EFF is the goto source for you. Because what they really hope one day to celebrate is Copyright Weak.  (Speaking of which, when is National Dad Joke Day?)

*From the motion picture My Cousin Vinny (1992).

How Valuable Are Works That Have Lost Value?

Picking up on one of the big copyright themes of the month—the re-opened public domain*—scholars James Boyle and Jennifer Jenkins were hosted last week by Joshua Johnson on his show 1A, produced by public radio station WAMU in Washington, D.C.  Boyle and Jenkins are leading members of the Center for the Study of the Public Domain at Duke University Law, and, as one might guess, advocates for shorter terms of copyright protection.  A number of topics unrelated to the public domain were covered, but I want to focus on the central theme the professors bring to the discussion.

Using the metaphor of the iceberg, Boyle and Jenkins tell us that better than ninety percent of works under copyright have lost market value—that, in fact, most works lose their market value well within twenty years after publication.  Based on these data—assuming we can take them at face value—they assert that copyright’s term of protection serves some “two percent” of works while doing a disservice to society by “locking up” the lion’s share of works that no longer even generate revenue for their authors.  

From these premises, they derive the conclusion that copyright is failing in its purpose to “promote progress” by sequestering a vast trove of material that might be used to produce new creative works and/or may be useful for libraries and archives. In this regard, I believe they overstate the value of the public domain for new authors while taking the wrong approach to solving a legitimate challenge for librarians.

The Public Domain and New Authorship

The view promoted by Boyle and Jenkins is over-reliant on the generalization that creators build upon works that have come before.  This is certainly true, but not necessarily in ways that can be taken so literally as to assume that authors need a certain volume of works in the public domain the way a farmer needs a certain amount of nutrients in the soil.  

Only a segment of creators at any given moment seek to use existing works in ways that implicate copyright; and a portion of those uses can still be accomplished through licensing.  Add to this the lion’s share of creative production that neither considers nor conflicts with existing copyrights, and it’s little wonder that what data we have reveal a general increase in creative output, even after the term extension of 1998. 

The “shrinking public domain” narrative with regard to new creation is hard to reconcile with, for instance, IIPA reports that continue to show growth year after year in the core copyright sectors.  And, as noted in my last post on this topic, when it comes to enforcement, copyright critics never fail to mention that we’re enjoying more creative output than ever before. So, clearly, authors are not choking on the lack of PD material in the air.

Mapping the Works Under Copyright

Meanwhile, if there is value to the “iceberg theory” Boyle and Jenkins present, it begs important questions on its own. The reality that most works produced in any given period (regardless of copyright) lose market value fairly quickly is both obvious and, quite possibly, irrelevant.  For instance, out of that large mass of submerged iceberg, how many works are so inherently transient as to be of little to no discernible cultural value?  How many diet books, romance novels, auto-repair manuals, self-help guides, exercise DVDS, etc. comprise the ninety-plus percent of “locked up works”?  I don’t know that answer either, but it should be addressed before anyone slings around big numbers for dramatic effect.

In his book (and I admit to not yet reading the whole thing), Boyle insists upon the need for empirical evidence thus:

“I want to offer a suggestion that in any other field would be stunningly obvious, boring even, but in the funhouse mirror of intellectual property appears revolutionary. We should make our policy based on empirical evidence of its likely effects and there should be a formal requirement of empirical reconsideration of those policies after they have been implemented to see if they are working.” 

That being the case, Boyle should agree that it is not sufficient to refer generically to “what creators might do” with works that fall into the public domain that they might not otherwise have done while the same works were under copyright.  Most articles and blogs on the subject tend to be tautological.  Look at what could be in the public domain!  Copyright on a work could last over 120 years!  Copyright terms started as 14 years with a 14-year renewal in 1790!   All of these sparkly bullet points, or tweets, are attractive to the already copyright skeptical, but none of these statements demonstrates how the current term is too long.

Addressing a Real Need

All that said, there is indeed a subset of zero-market-value works under copyright for which there is a clear social interest, and which Boyle and Jenkins address in their overall advocacy.  Where libraries or archives have obtained an interesting collection of works—say a body of obscure sound recordings from the 1930s and 40s—the institutions are frustrated by the fact that the uncertain copyright status of these works makes them apprehensive about building what could be a very useful online archive.

The inability to identify the rightholders in these cases (a.k.a. the “orphan works” problem), combined with the duration of copyright leaves the library or institution stranded.  And, as per the “iceberg” metaphor, these works aren’t making anybody any money anymore, so the fact that they’re captured by copyright functionally contradicts copyright’s purpose to “promote progress.”

I agree with this complaint in principle, and so do many copyright advocates.  But focusing on the length of terms to solve the issue is both wrongheaded and a needless waste of resources.  If we first acknowledge that the librarians’ problem in this case is actually the result of a relatively new opportunity (i.e. making works widely available online), this reframes the conversation in context to historic precedent whereby carve-outs in the statute have been made specifically for libraries, archives, and other non-commercial, public-serving institutions. 

Because American copyright terms match those of the 175 other signatories to the Berne Convention treaty, a stubborn agenda aimed at shortening those terms is almost certainly a futile exercise; and even if some incremental “victory” were achieved (i.e. reverse the 20 years since the CTEA), this would not entirely solve the uncertainty/orphan problem for all those works the libraries and archives would like to make available.  It is politically and pragmatically more realistic to collaborate with copyright interests with the aim of carving out a new, digital-age exception based on the class of user rather than the duration of copyright on the various works in question.  

Likewise, returning to Boyle’s and Jenkins’s iceberg narrative, it would probably be easier, and more useful, to advocate a new statutory exception for libraries et al than to attempt to correctly map the universe of non-market-value, copyrighted works and then try to demonstrate—other than by leap of faith—how those tide pools of sequestered material are in fact stifling the creative growth of the nation.  As stated, it’s a very hard case to make against the backdrop of the visible part of the iceberg—a body of works under copyright, and with market value, that is already larger than the average person can experience in a lifetime.

*January 1 was the first day that copyrighted works entered the public domain since passage of the term extension in 1998.  

Ocasio-Cortez Video a Good Example of What Rights Holders Really Want

Some news hit the fan late last week that certain parties tried to embarrass newly-elected congresswoman Alexandria Ocasio-Cortez by sharing a video of her dancing with college friends on a Boston rooftop, riffing on the 80s film The Breakfast Club to the tune by Phoenix called “Lisztomania.”  Why anyone imagined this would shame Ocasio-Corez is a mystery to me, but the reason it’s a subject here is in response to an article in Wired alleging that “the only reason you can watch the video now is because of a copyright battle that was settled five years ago.”  As usual, the reporting in this article is rich in attitude but poor in comprehension of copyright law. 

For starters, in her zeal to criticize copyright, writer Louise Matsakis did not look very closely at the AOC video on YouTube, where two bits of evidence demonstrate that its presence on the platform has nothing to do with a settled 2013 litigation between copyright reform activist Lawrence Lessig and Phoenix label Liberation Music.  The first clue is a timeline problem because the video was uploaded three years before Lessig’s confrontation with Liberation, and the second is that little statement below the video, which reads “Licensed to YouTube by Liberation Music, etc. …”. 

I know it’s not very exciting, but the music in this video is simply licensed by the platform, which brings up a broader point that I’ll get to shortly.  For the moment, though, I do not want to minimize the relevance of stories like Matsakis’s confusing the hell of people with regard to copyright law and what is generally called “remix culture.”  It seems clear that a reasonable takeaway from this article is an impression that the AOC video represents a fair use of the song “Lisztomania” and that we have Lessig to thank for affirming that for us.  Not even close.  

In 2013, Professor Lessig included various “Lisztomania” inspired mash-ups and spoofs in the AV he used to support a lecture on the subject of remix culture and his view that copyright enforcement hampers the emerging experiences of digital-age consumers.  When Lessig posted a video of this lecture online, Liberation Music (probably unwisely) filed a DMCA takedown and subsequent lawsuit against Lessig, which was eventually settled in Lessig’s favor. I do not know all the particulars of that conflict, but even if we stipulate that Lessig’s use was unequivocally a fair use, the video featuring “Sandy” Ocasio-Cortez is not.

While this video, and many like it, may (if we really stretch) be considered a comment on 80s culture, on The Breakfast Club, etc., the relevant facts are these: the video makes use of the entire song; the users make no creative changes to, or substantive comment upon, the song; and the song is synched to just over four minutes of motion picture.  This is a classic example of a use that traditionally requires two types of music license, and there is no reason to expect that any court would find fair use in a hypothetical litigation.  

In particular, as a work hosted on YouTube, the video would absolutely be considered a substitute for access to the song through otherwise licensed channels and would, therefore, fail under the fourth prong of a fair use analysis.  Even though the friends of AOC made this video for fun, and it seems wrong to expect that they would ever license the music for such a purpose, the reality is that most rights holders understand that.  What they are not cool with is YouTube earning a fortune from the traffic generated by hosting musical works while it pays songwriters and artists somewhere between a pittance and nothing for that privilege.

Returning to the reason why a video like this one (if it were not licensed) would fail under the fourth prong of the fair use test, it is widely recognized that YouTube is a globally-available substitute for other, paying or better-paying, channels for listening to music.  Sure, this week people will watch the AOC video out of curiosity generated by the news about her—views jumped about two million since I looked on Friday—but in general, YouTube is how millions of listeners play songs they want to hear, regardless of what the videos display.  

So, if 100 users upload a song for 100 different reasons, and each channel gets one million plays, that’s one-hundred-million public performances YouTube gets to monetize, possibly for free.  And that is the complaint songwriters and artists have. It is the reason why proposals for change (e.g. the EU’s Article 13) have been presented—not generally to stop these uses but to share in the revenue generated by them.  And that returns us to the absurd irony that, for all the legal incoherence in Matsakis’s article, the AOC video is actually a perfect example of what artists want—licensed use by the platform!

As a simple comparison, the video-makers in this case are like the local musician who wants to perform at Open Mic night at some club.  Nobody expects that guy to pay for performing rights licenses.  Instead, the venue—as the only money-making entity in the mix—pays performing rights licenses to cover most songs, so the musicians who come to Open Mic can perform whatever they want.  In this analogy, YouTube is the (very big) money-making venue; the college students who made the AOC video are the local musicians; and the copyright owners of the songs don’t want to stop the use, they just want the venue to pay a fair license fee.  

As for the rights holders who do occasionally have reason to stop a use, this should generally be respected, too, but is a case-by-case consideration that truly exists between the user and the copyright owner.  

Meanwhile, the narrative spun by YouTube—with the help of Lessig, the EFF, et al—is that the big bad rights holders should “leave the kids alone,” and this theme is transposed into articles like Matsakis’s in Wired, which then fuels the misconception that videos like the one featuring AOC would be fair use if challenged.  This breeds more unlicensed uses, often of works owned by rather small and modestly-resourced creators, from which YouTube reaps the financial benefit while the creators get nothing.  

As Ocasio-Cortez styles herself a champion of the “little guy,” I’m happy to see our newest millennial Member of Congress laugh off the haters of this innocuous video, but I also hope that, as a representative, she helps foster an understanding that the songwriters and musical artists are the little guy trying to stand up to corporate behemoths like YouTube.