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.

National Review Says ALI Oversteps in Areas Other Than Copyright

What is the difference between standing on legal principle and engaging in legal activism? The wry answer, of course, is that the attorney, scholar or judge who agrees with one’s opinion is a champion of legal principle while any of these who disagrees with one’s opinion is a feckless activist. “…there must be a clear line between describing what the law is and seeking to establish new law and policy,” writes John Fund for the National Review in an article about the “activist” character of the American Law Institute’s current agenda in issuing Restatements of Law. As described in this post, ALI traditionally publishes Restatements for the purpose of consolidating and unifying disparate common law opinions into general guidelines that may be cited almost as though they were statutory law.

I agree with Fund in spirit, even though I suspect that policy-for-policy, he and I would not agree as to what constitutes principle vs. activism. National Review is arch conservative and, as such, its editors probably would not find any hypocrisy in Fund’s citing the late Justice Scalia’s critique of recent ALI Restatements as “aspirations for what the law ought to be.” I would personally say the same thing about Scalia’s opinions in Heller and Citizens United, for example, but such is the subjective nature of the issue at hand. The law is always some version of what we want it to be.

Still, I am inclined to give Fund the benefit of the doubt that ALI Restatements are trending toward a more common definition of “activism” if their proposal to issue a Restatement on copyright law is any indication. As multiple copyright attorneys have stated, even considering a Restatement on a body of law that is already statutory is an undertaking that has never occurred in the hundred-year history of the institution. If that general fact emits a whiff of activist smoke, then the fire is in the detail that all the individuals pushing for the copyright Restatement are known to be ideologically critical of copyright.

I cannot comment on Fund’s report that ALI Restatements are also causing havoc in insurance, tort, and contract law, but he does state, “Last month, a group of six governors — from Texas, Maine, South Carolina, Nebraska, Utah, and Iowa — sent the ALI a letter warning that the proposed draft is a usurpation of the law-making authority of their state legislatures.” Again, I can imagine any number of laws in those states that I personally don’t like, but that doesn’t mean legislative authority should be undermined at the state level any more than it should be expropriated at the federal level. And as with the proposed Restatement on copyright, it would be interesting to know if this is the first time state governors have accused the ALI of overstepping its bounds in this way.

As a non-attorney, I am in no position to comment upon—or even know—the inner-workings of the American Law Institute. Whether Fund’s conspiratorial tone is justified, casting ALI as a near-clandestine organization undermining legal foundations, is hard to say. His short article does not lack conservative rhetoric, even citing the dreaded “political correctness” as motivation behind ALI’s Restatements. Especially in the current political climate, this is a very tough needle to thread. There are plenty of folks who would describe legalized same-sex marriage as judicial “activism,” while I would consider that view euphemistic bigotry. Regardless, the ALI is not a legislature; and to the extent its Restatement process may be seen as supplanting the legislative process, this is certainly grounds for scrutiny from any political perspective.

Fool me once, shame on Facebook …

In several posts on the subject of Facebook and fake news, I have opined that if we users are going to believe and disseminate bogus information, that’s mostly an us problem, one which Facebook likely cannot solve. In that spirit, there is an extent to which I agree with Mike Masnick’s Techdirt post on May 2 calling Facebook’s plans to rank news sources according to trustworthiness a “bad idea.” At least I agree with Masnick that a human flaw like confirmation bias is a “hell of a drug,” which cannot be counteracted by whatever algorithmic wizardry Zuckerberg & Team may devise.

But other than conceding that people are imperfect, subjective beings, and therefore susceptible to false information, I disagree with the rationale Masnick seems to apply in his critique of Facebook’s plans. He writes, “…as with the lack of an objective definition of ‘bad,’ you’ve got the same problem with ‘trust.’ For example, I sure don’t trust ‘the system’ that Zuckerberg mentions…to do a particularly good job of determining which news sources are trustworthy.”

Perhaps that’s just wordplay, but I find Masnick’s allusion to the subjectivity of trust to be symptomatic of the same populist affliction that precipitated the post-truth world in which we now live. I had hoped that the moment we elected a president who openly lies on Twitter, that this might at least serve as a clear and profound rebuttal to the cyber-utopian mantra that everything—including journalism—needed disrupting. Because if trustworthiness in news is not, on some level, objectively quantifiable, then all journalism must devolve to the exigencies of confirmation bias.

A functioning and humane democratic society depends on limits to democracy itself—on deference to expertise based on certain objective criteria to decide when that deference has been earned. It is essential that a reporter write, This Thing Happened—or even Here’s Why This Matters—and that a plurality of reasonable people accept the report as reliable based on objective (if subtle) metrics. Years of experience, background, track record, tone and style, and, yes, the organization a reporter works for should all factor into this assessment. So, I reject the proposal that “trust” is nearly so subjective as “bad” in this context. The integrity of a news report is not a matter of taste. Yet, Masnick writes …

“Facebook should never be the arbiter of truth, no matter how much people push it to be. Instead, it can and should be providing tools for its users to have more control. Let them create better filters. Let them apply their own “trust” metrics, or share trust metrics that others create.”

Call me a curmudgeon, but how is “applying one’s own trust metrics” any different from the same confirmation bias problem that social media tends to exacerbate in the first place? Masnick’s solution appears to be more confirmation bias, resembling the cliché that insists “more speech is the only solution to bad speech.” If that premise was ever true (and I have my doubts), it has been obliterated by the phenomenon of social media where more is often the enemy of reason.

Masnick is right, of course, that users who like Infowars are going to respond negatively if Facebook ranks that platform as less trustworthy than The New York Times or Wall Street Journal; but that’s a business problem for Facebook—one I could care less about because Infowars IS objectively less trustworthy than those news sources. And lest anyone think that’s liberal bias talking, I’ll say the same thing about Occupy Democrats or any of the other non-news sources my friends link to all the time.

These platforms don’t deserve equal footing with actual journalism, and if Facebook wants to rank news sources, fine. Whatever. I’m probably as skeptical as Masnick that it will do much good in the grand scheme of public discourse, but I think he exaggerates when he calls Facebook an “arbiter of truth.” This sounds more like the blogger who tends to oppose platform responsibility full stop than a complaint about what Facebook is doing wrong in grappling with its role as a conduit of news. In fact, it’s hard to fathom exactly what Masnick proposes as a solution when he writes, “The answer isn’t to force Facebook to police all bad stuff, it should be to move back towards a system where information is more distributed, and we’re not pressured into certain content because that same Facebook thinks it will lead to the most ‘engagement.’”

That reads like the suggestion is Facebook should not be Facebook, which is probably a non-starter as far as the shareholders are concerned. Instead, I tend to think that Facebook should be recognized for the flawed, highly-manipulated, walled-garden it is and placed in its proper context—as an activity to be moderated like video gaming or junk food. Because with or without rankings, we really have no idea what the psychological effect is of just scrolling past images and headlines that trigger dozens of subconscious emotional responses in a matter of minutes. Meanwhile, to the extent that Facebook remains a source of news and information, if ranking means I’ll encounter The Daily Beast more often than The Daily Democrat, I’ll count that as a win.

Public Knowledge Attack on CLASSICS Act Typically Unsound

In my last post on this subject, I asked why an organization like Public Knowledge would criticize the CLASSICS Act when there is no apparent downside for consumers if the bill becomes law. That post suggested PK’s motivation is more marketing for the service providers rather than advocating a public interest; but as promised, I will try to kick the tires on the specific law/policy claims being made against this bill.

To do this in a somewhat concise post, though, I have to concede that CLASSICS is a narrowly-tailored amendment to the copyright law, one designed to allow the majority of relevant (i.e. most likely to be played via commercial platforms) pre-1972 recording artists to participate in the current market. In practical terms, that’s what the act will achieve. In a more theoretical/historical context, CLASSICS is not a complete answer to the oddball history of U.S copyright vis-a-vis sound recordings since at least the 1920s.

So, it’s important to keep in mind that some of the criticisms of CLASSICS rely on more than hypothetical circumstances; they rely on alternate histories for the simple reason that the works we’re talking about have never been part of federal copyright protection. To make matters more complicated, the exclusive right addressed in the bill—public performance of sound recordings—was not part of the federal statute until 1995, and only then established for certain types of digital transmissions.

The CLASSICS Act seeks to harmonize some of the inconsistency in the law for the sole purpose of enabling certain, relatively contemporary, owners of sound recordings to share in the digital streaming market. For instance, it’s simply illogical that the author of a hit from 1970 is not entitled to the same royalties as the author of a hit from 1973. To achieve this goal, CLASSICS eliminates the 1972 threshold while leaving the existing terms and limitations intact. Nevertheless, as the bill moves to the Senate, critics are now responding as though it represents a substantial change that will exacerbate faults they already find lamentable in U.S. copyright law.

Doesn’t CLASSICS Extend Terms?

The claim most likely to get the attention of most people is that CLASSICS creates a major term extension for pre-1972 recordings. This usually comes with the eye-popping bullet point that works are being granted 144 years of protection! But the fact that one cannot extend terms which never existed is a point of more than semantic relevance. While it is true that 2067 minus 1923 does equal 144, Public Knowledge’s own post states that all pre-1972 sound recordings, currently under common law copyright, are already federally mandated to terminate on February 15, 2067.

That’s the same termination date called for in the CLASSICS Act. So, regardless of how one feels about copyright terms in general, this bill leaves the current terms in place for this particular class of sound recordings. At the same time, it is not at all clear that these sound recordings presently enjoy a public performance right under common law copyright (see Stephen Carlisle’s posts on the Flo & Eddie case in Florida as an example). As Terry Hart points out in yesterday’s post on Copyhype, “Say, for example, CLASSICS passes this year and goes into effect at the beginning of 2019, that gives pre-72 sound recording artists and owners an effective digital performance right ‘term’ of 48 years (2067-2019=48).”

It’s also worth noting that common law copyright is theoretically perpetual. But without wandering into the marshlands of potential litigation stemming from that legal bugaboo, suffice to say the CLASSICS Act should mollify critics because at least it establishes an expiration date for these works that is decidedly sooner than never.

Why Not Just Federalize All Pre-1972 Sound Recordings?

Public Knowledge’s argument that CLASSICS is “bad law” seems to rest substantially on the premise that it is inadequate in contrast to bringing all pre-72 sound recordings under federal law. This appears reasonable enough on the surface. All recordings “published” before 2/15/1972 would expire 95 years after their publication dates, and we would know what’s protected, what’s in the public domain, and where the expiration dates are, subject to the terms of the 1909 Copyright Act. This would certainly mean that a lot of sound recordings currently slated to fall into the public domain in 2067 would enter the public domain much sooner, BUT…

Although PK is correct that the Copyright Office in 2011 advocated a path to full federalization of pre-1972 sound recordings, that report also outlined the substantial legislative burden involved in migrating, for instance, state law determinations of ownership over to the federal system. Full federalization of these sound recordings is a monumental task that, at best, would be a very long slog in Congress, if it survived at all. While that played out, the copyright status of the sound recordings would not change—they would remain protected until 2067—and the pre-72 artists would continue to enrich the playlists of subscription services without reaping any of the benefits.

Not to be callous, but the process of legislating full federalization of these recordings could easily last longer than the remaining lifespans of many of the artists CLASSICS is designed to compensate. So, there’s a reasonable and moral argument to be made that effecting a narrow change now to support these artists in the current market is worthwhile. In this regard, it doesn’t seem at all reasonable for PK to label CLASSICS “bad law” (because it doesn’t harm anyone) simply because it happens to be a narrow law.

Does CLASSICS Create Uncertainty for Libraries & Archives?

Public Knowledge states …

“Libraries, archives, and researchers are the ones hit hardest by this situation. Initiatives like the Internet Archive’s Great 78 Project, or the Boston Public Library’s sound recording collections, operate under a legal sword of Damocles; they can keep going only at the mercy of common sense and a benevolent (or apathetic) recording industry.”

This statement is about the status quo and not about the CLASSICS Act. So, even to the extent the declaration is true—and that’s a big discussion—CLASSICS neither ameliorates nor aggravates any legal ambiguity for these institutions. Organizations like Public Knowledge and the EFF do this quite often: they attack a new proposal, which might entrench the status quo, by making it sound like a dramatic change backed by the nefarious “industry” in question. (See EFF on copyright in the TPP.)

One could predict that CLASSICS forecloses the possibility of full federalization of pre-72 sound recordings; but one could just as easily argue the opposite—that it may serve as a prelude to full federalization. In either case, the majority of commercially-viable sound recordings targeted for protection by this bill are—almost by definition—outside the sphere of interest where libraries and archives serve the public. Also, libraries and archives are afforded certain exceptions under copyright that are not available to for-profit entities. Both fair use and the carve-outs for libraries under Section 108 are explicitly stated in the CLASSICS Act.

Why Doesn’t CLASSICS Address Termination Rights?

Finally, Public Knowledge rallies general animosity for the recording industry in order to color its criticism that the CLASSICS Act is silent on the issue of termination rights. In simple terms, these are the conditions by which an author/artist terminates the transfer of copyrights to another party like a label or publisher. PK states the following:

“The sad reality is that the RIAA has exponentially more leverage with Congress than artists do, allowing them to dictate the terms of engagement. Legacy musicians thus face an impossible choice: abandon their push for termination rights in exchange for finally receiving the revenue they’re owed; or advocate for good policy at the expense of the potentially life-saving income.”

PK uses the subject of termination rights to emphasize the notoriously abusive contracts employed by record labels. But the fact is that sorting out the termination rights relative to all the pre-1972 state contracts would be just one component of the aforementioned slog to full federalization of these recordings. Public Knowledge makes this sound simpler than it is by alluding to copyrights reverting to the artist after 35 years, but this actually refers to the current statute, which does not govern these sound recordings. For now, the CLASSICS Act divides the royalties between the recording artist(s) and the sound recording owner, no matter what contracts are in place. So, PK’s implication that the bill is only for labels and not for artists is misleading at best.

Underlying all of that, of course, is the fact that Public Knowledge is exclusively hostile to copyright and has a history of making up all kinds of crazy nonsense rather than, say, providing knowledge to the public. In fact, I was struck by their reference to the wisdom of the Copyright Office on federalization of pre-72 sound recordings since is was Public Knowledge who had orchestrated a hatchet job attacking the credibility of the entire USCO and Register Pallante in the Fall of 2016. Ironically, that whole attack was predicated on accusations of “cultural capture,” which is funny because I wonder what psychological condition explains PK’s assault on this particular bit of legislation.