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.

FOSTA passes House. Internet should be broken any day now.

Is the internet broken yet? I suppose if you’re reading this, it isn’t. And if you’re not reading this, you’re looking at something else. On the internet.

Yesterday, the House passed the hotly-contested FOSTA, which is now the acronym for the anti-sex-trafficking legislation that combines the earlier bill SESTA with various amendments. Eric Goldman has called the progeny a Frankenstein, a “worst of both worlds” bill that will only aggravate what he calls The Moderator’s Dilemma, meaning that internet platforms wanting to avoid potential liability for facilitating sex-trafficking will be stuck with two options: either moderate everything, which is impossible for some sites; or moderate nothing, which will disincentivize sites from acting responsibly, including the moderation of possible sex-trafficking content.

The argument that this legislation won’t help any victims of sex-trafficking, and might even make matters worse, has been echoed by the EFF and other “digital rights” organizations, including Mike Masnick in a recent post-game, Techdirt tirade, lashing out at various players in the industry, including Facebook, for fumbles and other tactical errors that allowed this legislation to succeed. All parties who’ve stood in opposition to these bills have complained about the political reality that nuanced arguments can be tough to present without looking like they’re being soft on sex-traffickers. And I understand how frustrating that can be. It’s almost like trying to discuss the finer points of copyright law while a mob is labeling you a draconian, Luddite, speech-hating, maximalist.

Nearly all parties expect this bill will sail through the Senate and become law, and time will tell whether it provides any form of remedy for the victims of sex-trafficking or, as the critics claim, creates undue liability for innocent site owners while doing nothing to address the underlying problem. But apropos concerns about Goldman’s Moderator’s Dilemma, it is important to remember that the alternative proposal is to maintain the status quo under which the site Backpage was generally held to be immune from both civil and criminal liability, despite sufficient evidence to indicate that a case against its owners should at least go to trial.

In an earlier post on this subject, I labeled the critics of anti-trafficking legislation the NRA of cyber-policy on the grounds that their approach appears strikingly similar when it comes to defending the absoluteness of the liability shields crafted in the late 1990s, at the birth of the commercial internet. In the present climate, it’s hard not to compare this advocacy with the calcified view of the Second Amendment insisted upon by gun-rights activists conflating civil rights with the profit motives of firearms manufacturers. Like the NRA, the EFFs of the world seem determined to accept only a maximalist approach to policy, even where some minimal amendment might do some good.

By “minimal” in this context, I mean that the fundamental safe-harbor mechanism in the Communications Decency Act doesn’t change substantively from what it was before these bills, other than to explicitly state that it was never the intent of Congress to provide immunity for alleged profiteering from sex-trafficking. Moreover, the population of internet enterprises that will even need to take notice of this new law is quite small. One’s business either has to be in some way involved in the sex trade (e.g. host adult ads), which is a limited set; or one has to host a large volume of user-generated content (e.g. YouTube, Facebook), which is also a limited set, but one that can afford compliance as these are some of the wealthiest companies in the world. Meanwhile, the remaining 99.X% of the internet should keep plugging along without feeling any particular urgency in a post-FOSTA environment.

I certainly can’t claim that FOSTA is without flaws—or even that I have the expertise needed to identify exactly what those flaws might be. But as imperfection is a natural characteristic of most legislation, this is supposedly why we have a judiciary tasked with interpreting statutes—and why I say that only time will tell whether this new law will achieve its intended benefits or yield unintended consequences. In either case, consumers who use the internet are unlikely ever to notice any change at all; and if even a few victims of sex-trafficking are actually helped in some way, this seems like an easy choice.

Meanwhile, I remain doubtful that the volume of doomsday rhetoric aimed at the anti-trafficking bills is ultimately about this legislation per se. One reason it seems clear that no provision would ever satisfy the staunchest critics—the EFF will even rail against voluntary measures instituted by industry—is that the slightest adjustment to the safe harbor shield in the CDA implies that perhaps the safe harbor can be amended in the DMCA, too. And that poses an existential threat—not to the internet, of course, just to the maximalists hellbent on defending laws passed in 1996 and ’98 as though they must be the last word for all eternity.

Important Win for Rights Holders in TVEyes v. Fox

In Monday’s post (and quite a few others) I stated that certain parties have worked very hard to distort the character of the fair use doctrine until it no longer has any boundaries or meaning, and simply nullifies copyright’s protections. For the last two years, every time I’ve made that accusation, the case foremost in mind has been TVEyes v. Fox News. But yesterday, on Day Two of Fair Use Week, the Second Circuit Court of Appeals handed down an opinion that draws some freshly sharp lines around the traditional limits of fair use in an age when tech ventures consistently try to describe mass copyright infringement as innovation. Rights holders of every flavor should feel relieved by this decision, especially as it upholds the conditional and narrow finding of fair use in the Google Books case.

The court rejected all  the defenses presented by TVEyes, but the most significant part of this story involves the relatively novel doctrine of “transformativeness,” which is weighed when considering the first of the four fair use factors, and has split into two main interpretations. The first interpretation, applied in Campbell (1994), describes the transformation of one expressive work into a new expressive work (i.e. the kind of fair use most creators care about). The second interpretation, most prominently applied in Google Books (2016), describes a much more broad transformation of a useful technology, which necessitates copying protected works in order to function. (See today’s Copyhype post on transformativeness.)

The latter interpretation has made rights holders rather anxious as several tech companies have tried to assert that the “transformative” doctrine—and especially the holding in Google Books—provides a rationale for just about any new tech venture to commit mass infringement on the grounds that the novelty of the enterprise alone can be described as “transformative.” TVEyes, which stored, organized, and made available nearly all of Fox’s programming to its institutional and corporate customers (see a more detailed discussion here), relied substantially on this interpretation of “transformativeness” in its defense. But yesterday, the same court that wrote the opinion in Google Books made a clear distinction between that case and this one, holding that the TVEyes model is not a fair use.

The majority of the panel held that TVEyes’s “Watch” function, which enabled viewing whole programs in 10-minute segments, was “slightly transformative,” but so modest as to be outweighed by the rest of the fair use analysis. In particular, the third and fourth factors were short work for the court because TVEyes made nearly all of Fox’s content available (weighing against them under the third factor) and “usurped a market that properly belongs to the copyright-holder” (weighing against them under the fourth factor) by creating a means of distribution that a creator has the exclusive right to develop for itself.

Interestingly, Judge Lewis A. Kaplan wrote a concurring opinion, dissenting solely on the majority’s analysis of “transformativeness,” holding that the consideration itself was not necessary; that a finding of “slightly transformative” adds further ambiguity to an already ambiguous doctrine; and that, if he were to consider the matter, he sees no evidence that TVEyes is the least bit “transformative” under a fair use analysis. In fact, Kaplan’s opinion may prove especially significant in drawing a distinction between Google Books and other tech ventures hoping to exploit the ambiguity of “transformativeness.” Kaplan writes…

“The facts here…differ from Google Books quite substantially. The snippet function considered there delivered much less copyrighted content than the Watch function at issue here. Nevertheless, we there concluded that the snippet function only ‘adds’ to the transformative purpose of the Search function. Our conclusion with respect to the Google Books snippet feature therefore does not control the proper characterization of the Watch function at issue here. Moreover, we cautioned in Google Books that the case ‘test[ed] the boundaries of fair use.’”

TVEyes may appeal this ruling since it does put an end to their business model; but it’s hard to imagine the Supreme Court granting cert, unless it were exclusively to further clarify the “transformativeness” doctrine. There doesn’t appear to be anything else for the Court to resolve. And given the rationales applied by the Second Circuit here—especially drawing such clear distinctions between its own precedent opinion and this one—it seems like a big stretch for TVEyes to expect an appeal to go their way, even if the Supreme Court did hear the case.

Rights holders should be very pleased with this outcome, as should anyone who believes that legal systems have contours. Fair use is an important exception to copyright’s exclusive protections. But it is simply common-sense to conclude that every tech company that develops another method for exploiting someone else’s work—TVEyes, ReDigi, VidAngel, etc.—cannot call itself “transformative” and get away with it. One can show great ingenuity in hacking, embezzlement, or counterfeiting, too, but that doesn’t make these enterprises legal. Thankfully, the Second Circuit agrees.

Happy Idea/Expression Dichotomy Week!

Today marks the start of the fifth annual Fair Use Week when library institutions, academics, and several anti-copyright organizations disseminate public-facing messages—from useful to whimsical—on the virtues of the fair use doctrine in copyright law. There is, of course, nothing wrong with highlighting the utility of fair use per se, but the mere fact that these parties devote so much energy to a week of fair use celebration is more than a little propagandist in spirit.

For one thing, several of the organizations and individuals waving fair use banners have long been engaged in an effort to expand digital-age fair use until, like a river breaching its levees, it drowns copyright protections out of existence. Second, for the time being, fair use remains a relatively arcane legal defense that may be presented in a copyright litigation—one that is best understood by reviewing precedent case law. As such, the number of creators the doctrine actually touches is quite small even though its most ardent celebrants would say that fair use is so abundantly generative of new works—scholarship, reportage, parody, etc.—that we are all beneficiaries of its application.

And that narrative is true up to a point. Fair use does protect and foster many forms of expression that are essential in a diverse and democratic society. Oddly enough, though, we never celebrate the less melodious-sounding Idea/Expression Dichotomy Week even though it is probably a more important and more generative principle. The idea/expression dichotomy (or distinction) affirms that copyright’s exclusive protections do not extend to ideas but only to original expressions of ideas. And although many critics strive to portray copyright as a system for monopolizing ideas by a privileged few, this is not a sentiment you’ll hear from many actual creators. And that’s not because fair use enables authors to copy from one another in great abundance, but because the idea/expression dichotomy enables creators to work without giving much thought to the prospect of infringement in the first place.

When copyright skeptics overemphasize the need for authors to build upon precedent works (a fact no creator denies), they often muddy fair use with idea/expression, either naively or by design. In practical terms, there are fewer incidents when an author needs to explicitly copy some portion of an existing work than there are moments when the author simply embarks on a project that may be broadly inspired by some precedent work. So, the budding singer/songwriter, for example, is free to use all the raw elements that comprise her favorite punk songs to produce her own expression we recognize as punk; and with very few exceptions, her album will sit comfortably next to The Ramones, The Dead Kennedys, and The Clash without inviting conflict. And fair use has nothing to do with it.

Without wandering too deep into the dense weeds of early IP law, suffice to say the idea/expression dichotomy was shaped into its present doctrinal form by a handful of cases that challenged the courts to identify exactly what copyright protects, including the boundaries between copyright and patent, with the latter more properly associated with protecting ideas. Often, 19th-century cases were as much an exercise in evolving semantics as they were in legal theory. For instance, prior to 1874, a copyrightable work could have an “author, inventor, or designer” until Congress amended the statute to clarify that the word inventor in this context only referred to the printmaking field, where the now-disused term of art once described the original artist/designer in that process.

Absent that clarification, we can see how a word like inventor can blur the line between copyright and patent, especially when it’s the exact word in the Constitution’s IP clause that describes the type of creators who are entitled to patent protections. The distinction between idea and expression was first substantially articulated in the United States in the case Baker v. Selden, decided by the Supreme Court, also in 1874. The key decision in Baker held that while Charles Selden’s book about his system of bookkeeping (an expression) may properly be the subject of copyright, the bookkeeping system itself (an idea) is not a subject of copyright. It turned out Selden’s system wasn’t granted a patent either, but that’s another story rich in tedious detail.

As core concepts, both idea/expression and fair use have long pedigrees dating back to English copyright law, to which American courts turned for guidance in the early 19th century, since we didn’t have any case history of our own. As scholar Matthew Sag describes in his 2011 paper The Prehistory of Fair Use, the fundamental principles of American fair use doctrine can be found in key copyright cases in England as early as 1741. But Sag further notes that his examination of pre-American fair use reveals a broader understanding of authors’ rights than many contemporary critics tend to ascribe to premodern copyright. In other words, the politicized narrative that copyright protections have continued to balloon out of control while fair uses are quashed is neither evident in the contemporary record nor necessarily well-founded in the historic one.

As new technologies transformed the nature of creative work in the 20th century—enabling so many professional authors that the United States became the world’s largest producer—it was inevitable that so much abundance would have to include countless works that are relatively similar to one another. And the limitation on copyright that most often supports this dense, rich anthology is the idea/expression dichotomy—not fair use.

Because the fair use exception can be tricky—even at times for attorneys and courts—it remains an ideal subject for sowing misunderstanding in public fora, and this includes exaggerating its role in fostering new expressions. But the simple truth is that most authors produce most of their work without giving precedent works, or copyright law, much consideration at all. In fact, it would be stiflingly daunting if they tried. So, there’s nothing wrong with celebrating Fair Use Week, but it is almost certainly Idea/Expression Dichotomy doing most of the heavy lifting throughout every creative year.

Photo by alphaspirit