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.

Considering Jessica Litman’s Call to Rethink Copyright Doctrine

One of the more popular talking points among copyright critics is that copyright only works for corporations but not for individuals. Thus, debate about copyright’s purpose and legal contours is often an extension of the broader condemnation of corporate power in our democracy, or even capitalism itself. For this reason, when activist groups like EFF or Public Knowledge declare that “only corporations benefit from copyrights,” it’s a dog whistle that triggers a generalized, sympathetic response but which offers little serious thought about the premise itself.

In fact, the policies advocated by these organizations are so consistently and so broadly anti-copyright that they could never honestly claim to care how much or how little copyright does serve individual authors. For instance, recent assertions that the proposed CLASSICS Act is a “handout to labels” may be an easy pitch to sell in this climate, but it isn’t remotely true based on any sensible understanding of what the bill actually does.

Setting a New Tone?

A recent paper by law professor Jessica Litman, at the University of Michigan, recommends that copyright scholars take what she considers a fresh approach to understanding copyright’s benefit to individual authors by first extricating themselves—both personally and professionally—from the macro-debate being waged by very large corporations. She suggests that she and her fellow scholars are too caught up in the business fight between legacy intermediaries (publishers, labels, studios) and new intermediaries (online platforms). “Copyright scholars can safely leave them to work it out without our help,” she writes. “If the core question in that dispute is whether the law ought to favor publishers over platforms or vice versa, the answer is unlikely to significantly change the copyright ecosystem. Neither side has much of a claim to the moral high ground.”

Although this is her preface and not her thesis, it is necessary to interject that while I think the spirit of what she proposes has merit—that academics might look through the fog of big companies battling over turf—that she errs in a very significant way when she portrays traditional publishers and digital platforms as equals from the perspective of authors and their copyrights.

From the authors’ point of view, even the most predatory practices of legacy intermediaries still cannot compare to the outright theft of their rights—to say nothing of evangelizing that theft—by the internet platforms. This is why so many professional creators have offered variations on the theme that it’s their choice to negotiate licensing terms with traditional intermediaries, while the kind of piracy that enriches online platforms gives them no choice whatsoever. I’ll return to that topic, but Litman’s thesis is summed up thus:

“If a legal regime purportedly designed for the benefit of authors systematically short-changes them, why does that happen, and what options might we have to respond? The answer, I’ll suggest, lies in the ways that we, as lawyers, think about property rights.”

At the risk of being kicked out of the pro-copyright club, I think any scholarship that proposes to consider how copyright might better serve individual authors is worth analyzing at face value. Litman’s point deserves consideration inasmuch as she has not produced yet another paper, replete with overtones of collectivist whimsy, about the evils of copyright and the greed of artists. And to me, her paper does not read like thinly-veiled policy proposals designed to benefit Silicon Valley. Instead, she at least appears to ask a perfectly valid question as to why more authors don’t reap more benefit from the system.

The History of a Con Game?

The fulcrum of Litman’s thesis is that the first law to vest copyright in the author, the Statute of Anne ratified by England’s Parliament in 1710, was a maneuver by the publishers of the time to retain a monopoly they were about to lose. By royal charter between 1557 and 1709, the guild known as the Stationers Company, which comprised the trades necessary to book printing, had the exclusive right to publish all books throughout England and her domains. But, faced with the prospect that the charter would not be renewed, the Stationers were at least partly responsible for advocating the Statute of Anne, which, for the first time, vested copyright in authors.

Litman subscribes to the narrative that this was a tactic employed by the Stationers designed to temporarily grant a property-like right to authors, which could then be easily and cheaply acquired by publishers, thus restoring their effective monopoly. To emphasize her point, she compares the Statute of Anne to the U.S. Dawes Act of 1891, which granted tracts of land to native tribes so that they could be easily bought by speculators in transactions that look fair and legal but were really just a mass swindle. “If you are looking to get your hands on some arable land or to regain control of the printing texts, creating new property rights turns out to be an excellent strategy. Sometimes the original recipient of the property benefits, but not always,” Litman writes.

Thus, Litman asserts that the doctrinal practice of treating copyrights as property may be a root cause of the law’s failure to benefit authors relative to the way in which it benefits intermediaries. She writes, “The rest of the world followed that model. In almost every country, authors receive copyright protection as an initial matter, but those copyrights are transferred to and then owned and controlled by publishers and other intermediaries.”

Without writing a five-thousand-word post, it’s worth keeping in mind that the story of the Stationers Company is more complicated than Litman states; that copyrights are not exclusively transferred to intermediaries in ways that are disadvantageous to authors; and that American copyright practice, especially after 1909, diverges substantially from England in 1710.  So, while Litman presents an interesting historic parallel, I would caution against giving it too much weight if her purpose is indeed to examine 20th and 21st century copyright doctrine to the benefit of individual authors.

If Not Property What Then?

With that in mind, my first response to Litman’s proposal that copyright’s weakness lies in the legal doctrine binding copyright to property law, is that perhaps copyright shares more natural rights qualities than many of her colleagues may be willing to admit. If the problem, as she states, begins with the fact that property is alienable and, therefore, designed to be sold, then does this mean scholars are willing to entertain the possibility that copyright is also inalienable? That it functions like a labor right as well as a property right?

Property is alienable, can be sold, transferred, bequeathed, etc. But a labor right is inalienable and does not last beyond the life and physical being of the individual. When an author agrees to a licensing contract with an intermediary, she shares a kinship with any other worker signing a labor contract, but for the fact that the author has sometimes already performed the labor while other workers agree to terms for labor yet to be done. Or, conversely, a musician who signs a multi-album contract is negotiating both property and labor at the same time, and his bargaining position is founded on the copyrights in the creative works yet to be produced.

Individuals are vested with the natural right to negotiate terms for their labor throughout their lifetimes, and this right is never diminished, no matter how many works an author creates or how many jobs another kind of worker holds. Of course, possession of this right does not guarantee that the market will be fair or that intermediaries or employers will not be predatory. But this is comparable to the fact that non-discrimination laws do not eradicate discriminatory feelings or behaviors. In other words, human flaws like bigotry or greed do not mean the rights codified into law are doctrinally flawed, and I am concerned Litman may be straying into this logical fallacy.

At a very basic level, negotiating a licensing contract is not that different from any other contract for the exchange of labor. The more perceived value the laborer or rightholder possess, the better her bargaining position (e.g. an author with a money-making track record is like a job applicant with a great resume). To the extent that an author needs an intermediary—and Litman states that this is necessary—I don’t see how this fundamental rule of investment (i.e. that more perceived value equals greater negotiating power) is going to be altered whether attorneys are trained to think of copyright as property or not.

Economic Forces Are Independent of Copyright

As alluded to above, legacy intermediaries are just one sector within a worldwide consolidation of corporate power in liberal democracies. The forces that continue to fuel this trend—and presumably any potential remedies to these forces—are almost certainly independent from copyright doctrine. So, if a copyright scholar were to examine negotiations among authors and intermediaries across various decades, I would hypothesize that copyright is a universal constant relative to other factors that lead to either more predatory or more symbiotic contractual arrangements.

As a simple example, Hollywood in the late 1980s was marked by a climate of spec-script mania. Writers benefited from a commodities-exchange-like feeding frenzy, with studios paying huge prices for specs. It wasn’t necessarily rational, but this screenplay bazaar had little to do with copyright doctrine and everything to do with various market forces driving studios to behave in this manner. Today, a spec writer is in a much weaker bargaining position than that period, but is simultaneously bolstered by the fact that entities like Netflix are currently spending huge volumes of capital in order to bulk up their programming as quickly as possible. This trend will shift at some point, and, again, will have little to do with copyright doctrine.

Putting Their Own Theories to the Test

In the same way that academics should be mindful of non-copyright-related forces in this context, I think they should also consider some of the non-measurable benefits that authors—correctly or not—perceive when they enter into deals with intermediaries. I am currently writing a non-fiction book and have signed a publishing contract with a university press. As Litman and her colleagues know very well, such an arrangement is basically writing on spec under contract for nothing that anyone would consider real money.

Most academics who publish books do not make much money from the books themselves, yet I suspect the reasons they sign deals with publishers like university presses is that, like me, they recognize various benefits that transcend money. Among these benefits is that writing a book is hard enough without being entirely alone in the editing, production, and marketing of the book; and the imprimatur of a known press is not without value.

So, because many copyright scholars have full-time jobs with tenure, benefits, and PhD after their names (i.e. financial security most authors do not have), I would suggest that any academics who might heed Litman’s call and eventually propose alternative models to distribution should be among the first to test their theories with their own works. (Kinda like the mad scientist with the new drug who injects himself first to see if he’ll turn into Mr. Hyde.)

Many of these scholars can look to their own careers as authors and ask themselves why they enter into contracts with publishers when these deals are not expected to yield a substantial portion of their incomes. The answers to those questions may provide an opportunity to step out of the ivory towers and into the authors’ shoes; and if Litman and colleagues truly want to understand how copyright can better serve individual creators, thinking like creators might be a good place to start.

EU Copyright Proposal Article 13 Set to Destroy the Internet (Again)

As mentioned in my previous post, Article 13 of the EU Directive on Copyright in the Digital Single Market is the latest proposal that will “destroy the internet as we know it,” if the statute is ratified in its present form. The #copyright feed on Twitter seems dominated by messages proclaiming the existential toxicity of Article 13, and, as usual, there are a lot of articles agreeing with one another that this proposal is really bad—all of them long on synonyms for bad, but short on substance as to why bad things will actually come to pass. And the reason for this is that Article 13 does not outline any specific practices but rather proposes to adopt certain practices. If that sounds like a distinction without a difference, it isn’t.

The broad goal of the EU Directive is to create a Digital Single Market (DSM), something that consumers, digital rights activists, and even many rightholders have been advocating for years. Harmonizing the disparate copyright laws (as they relate to internet distribution) of the 28 member countries should facilitate better access for users and, in principle, foster more robust trade in digital goods throughout the continent.

But the European Commission simultaneously recognizes various threats posed by the internet industry to the authors of works—especially from major platforms that host vast amounts of user-uploaded, copyrighted material.  In the European Commission, these are called Online Content Sharing Service Providers (OCSSP), a category that excludes non-commercial sites like encyclopedias or sites where “content is uploaded with the authorisation of all concerned rigthholders, such as education or scientific repositories.”

Presently, the Directive’s Article 13 mandates that Member States work with major service providers, user representatives, and rightholders to develop technical measures designed to filter content in order to prevent or mitigate the uploading of infringing material. Here’s the language from the current draft:

“Member States shall facilitate, where appropriate, the cooperation between the online content sharing service providers, users, and rightholders through stakeholder dialogues to define best practices for the implementation of the measures referred to in paragraph 1 in a manner that is proportionate and efficient, taking into account, among others, the nature of the services, the availability of technologies and their effectiveness in light of technological developments.”

This is what will supposedly destroy the internet as we know it.  A provision that Member States work with stakeholders to develop technical measures to filter unlicensed content from various platforms.  A process that, if it happens at all, will take several years of negotiating (and bickering) to implement.  I feel compelled to interject that when the DMCA was passed in the U.S. in 1998, it also contained a mandate that rightholders and service providers collaborate to develop technical measures in order to filter for infringing content. In fact, the service providers testified to the availability of such technical measures as part of their rationale for lobbying for the safe harbors in DMCA in the first place.

If America’s past is Europe’s prologue, the major service providers—with ample help from anti-copyright ideologues—will fight the implementation of such measures at every phase, so we’re at least 10-15 years from “destroying the internet we know.”  I find this funny because the “internet we know” (using YouTube as a reference) isn’t 15 years old yet, and I’m not sure why the internet of 2031 should be required to resemble the internet of today in any context whatsoever.

Although the EU Directive is not specific about what technical measures should be developed and implemented, the usual chorus of critics hear the death knell of the internet in the mere suggestion that such technical measures should even be considered. Thus, the main message they’re selling—the one they always sell—is that no technical measure could ever be implemented without fostering censorship of protected speech. Hence, Pirate Party Member of the European Commission Julia Reda’s labeling these provisions “censorship machines.” Then, the anti-copyright voices in academia and “digital rights” groups jump on board with scary-sounding declarations like this one:

Algorithms Can’t Assess Fair Use!

It’s true. They can’t.  And the day they can, I’m going into the bunker because this would indicate the machines have woken up and are about to kill us. Of course, most human users who upload copyrighted works aren’t very good at assessing fair use either—or more to the point, most human users don’t bother thinking about what they’re uploading, period. It is simply assumed at this point that every user is free to upload whatever he wants without considering whether he has any right to make a work available online.

Just because digital activists and copyright haters paint a picture of an internet replete  with fair uses, that doesn’t make it true.  In fact, in my anecdotal experience with friends—including artists who don’t want to infringe—almost nobody has taken the time to understand fair use. So, are social media platforms more richly populated by fair uses or infringing uses? I don’t know. But neither do any of the people currently overstating assumptions about fair use in order to scare users about the provisions in Article 13.

Moreover, as alluded to in my last post, if content filtering systems are too hypersensitive, this will adversely disrupt the use of licensed works. For instance, I pay for the stock photos I use on this blog, but if WordPress deploys a filter that is too robust and rejects every image, that’s bad for me and the rightholders of those images. This is a tiny example as to why Article 13 requires stakeholders to develop technical measures through collaboration.

And on that point, why don’t the digital activists ever seem to want to collaborate on such initiatives rather than invoke Revelations at the mere prospect of having the conversation? Because a) they fundamentally hate copyright and have no intention of finding compromise; or b) because they really are in Silicon Valley’s pocket and seek policies that serve the interests of Google et al.

It is important to keep in mind that almost no proposal—from voluntary to statutory—is ever endorsed by these parties if it implies even a hint of platform responsibility for user-uploaded content. This remains true despite the staggering evidence that our 20-year policy of leaving platforms to their own “merits” resulted in the Facebook/Russia/Cambridge-Analytica scandal. These events have led many citizens to reconsider the need to preserve “the internet as we know it” in favor of adapting to an internet that better serves society. To achieve this, we will have to accept that, in fact, there are laws applicable in physical space which are not rendered obsolete by interacting in cyberspace. Maybe if we describe this approach as disrupting the internet, the digital activists will get it.

Don’t Mourn for the Memes Just Yet

Over the weekend, a photograph taken by Jesco Denzel went mega-viral. Ultra-viral? Really really viral? Whatever. It killed. You must have seen it. It depicts leaders of the G7 nations, headed by German Chancellor Angela Merkel, in a composition that seems to suggest the adults of the world are schooling a petulant-looking Donald Trump. But I don’t mention the photograph to comment on the President or about his administration’s posture regarding international trade. I mention it because by now, the image has been “memed” dozens or hundreds of times; and although any number of these derivative images may be amusing, I have to question the extent to which they are particularly important.

Consider what I assume to be a favorite version among Trump critics: the one that shows the President seated in a high chair with a bowl of spaghetti overturned on his head. It’s funny. But what it actually says is also redundant to the way I think many people read the original Denzel photograph in the first place. What has the meme really added? A fleeting moment of comic relief soon to be forgotten amid the millions more to come? Or is it truly a substantive work of political satire that will have lasting, salient effect?

In context to this post, the meme version is not necessarily a fair use as a parody, if it were ever to be the subject of a copyright infringement claim. Without doing a whole fair use analysis, the fact that the spaghetti version merely emphasizes what the original says (at least to Trump’s critics) weighs against a finding of fair use in which the meme-maker parodied the work rather than merely used Denzel’s photograph to lampoon the President. But within that analysis lies a hint about the social and cultural value of memes in general.

Because the meme in this example adds almost nothing while potentially diluting the value of the original—both for the author and the viewer—we should not completely ignore what we lose in the digital age, when an important image is no longer allowed to simply be what it is for even a few hours before every prankster with Photoshop has to draw metaphorical mustaches on it. Though funny, the spaghetti variation of Denzel’s photograph is glib in contrast to the provocative quality of the original, which my friend, the photographer Doug Menuez, predicts may prove to be one of the truly important photographs in history.*

If it seems that I exaggerate the worthlessness of memes it is only to propose some counterbalance to the more general attitude that the social media meme is a medium of great value. And the reason I stress a more balanced view is that several stories have surfaced recently declaring that if the current EU plan to harmonize copyright law for the digital age passes as written, memes will be banned from the internet. So, aside from the fact that, of course, memes will not be banned, I’m not convinced society would lose anything if memes were either fewer in number or less-infringing in nature.

Specifically, this “save the meme” campaign is one of several lines of attack on the proposals in Article 13 of the European Commission’s strategy to create a Digital Single Market. This section outlines a mandate for platforms that host user-generated content to implement technological filters that identify and help remove infringing material from their platforms. Pirate Party Member of the European Parliament Julia Reda has labeled these technical measures “censorship machines” (of course she has), and this rhetoric has been echoed by the usual suspects EFF, Techdirt, et al as the latest major threat to the “internet as we know it.”

On that subject, I’d like to remind readers that the “Russian hacking” of American democracy via Facebook ads was a campaign based largely on memes. If you watched the hearings on Capitol Hill, memes are what Members of Congress presented to Zuckerberg as evidence of Russian-sponsored messages designed to foment and aggravate divisiveness among American citizens. So, not only would I caution against too ardently “saving the meme,” it seems increasingly clear that the more generalized agenda to save “the internet as we know it” cannot be taken too literally.

In a subsequent post, I’ll try to dig into Article 13 in more detail, but the general complaint being marketed as inevitable meme extinction assumes that any technical measure employed to filter the uploading of unlicensed content will not be able to detect fair uses. Consequently speech—potentially speech of great parodic significance—will be removed from the internet.

It’s a ballsy complaint coming from the same crowd that insists rightsholders must “consider fair use” before sending a DMCA takedown because they seem to think the user of a work should not have to “consider fair use” before uploading. I say this because these same critics assume, or at least promote the idea, that most meme uses of protected images are fair uses. In all likelihood, however, this is not the case. Most memes I see would not stand up to fair use analysis, so what the critics are really saying is that memes are just too important to lose, even if they’re infringing.

So, I would first reiterate that a very large volume of memes are less culturally valuable to society than they are financially valuable to the platforms. Second, these critics overstate the assumption that everyone who alters a photo to make a meme is engaged in a fair use—be it funny, poignant, cruel, or just Russian agents having fun. Third, and perhaps most importantly, if the so-called “censorship machines” were as hyperactive as the critics claim, these measures would invariably harm the interests of rights holders, advertisers, and any other party who benefits from licensed use of works on social platforms.

This suggests that perhaps nobody envisions “censorship machines.” In fact, if experience tells us anything in this regard, it’s that the anti-copyright, pro-Google “activists” start saying “censorship” and “break the internet” at the mere suggestion that any proposal should change the status quo. Hence the specifics are either still in development or are being purposely obfuscated by the critics.

As I say, I’ll do my best to get into the specifics related to Article 13, but in the meantime, I’ll summarize what I said to Washington Post tech reporter Caitlin Dewey when she predicted the death of memes in 2012: infringing protected works is not actually necessary to produce memes; authors of works produce all the time without infringing; it’s called being creative.

*I do not claim to know how Mr. Denzel feels about any of the memes of his photograph.