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.

Is a Tech Company Really Claiming Ownership of Marvel Characters?

You may have read recently that some of the major studios, most prominently Disney, are alleged to have infringed the patent rights in a certain motion-capture system used to make blockbuster films like the multi-billion-dollar Marvel movies.  Further, an article like this one in Hollywood Reporter by Eriq Gardner might give a reader the impression that a) the patent infringement allegations are indisputable; and b) that the plaintiff in this case Rearden LLC is claiming to “own” some of the famous CG characters featured in these movies. So what gives?

A lot. But not necessarily what the headlines imply. As for the patent infringement allegations, these are impossible to comment upon at the moment because 1) I know almost nothing about patent law; and 2) the entire backstory as to how Disney and other studios may be implicated is too complex to unravel in this forum. Suffice to say, we’ve got some former technology partners who are no longer friends, some dubious-sounding shenanigans involving the sale (or not) of shared (or not) intellectual property, and an inventor named Steve Perlman (Rearden’s CEO) who seems to have at least a few good reasons to be pissed off at somebody.

Time and the courts will sort all that out, but for the sake of addressing the copyright allegations in this story, we need to assume hypothetically that the studios are implicated in the patent infringement from which the copyright claims stem.  And let’s cut to the chase and clarify that Rearden cannot—and is not—claiming any ownership of the underlying pictorial or graphic works we know as Hulk, Deadpool, Iron Man, etc.  What Rearden does allege is that by making unlicensed use of its MOVA Contour technology, the studios simultaneously infringe Rearden’s copyright in the outputs of this technology.  Hence, cutting through the fog and high drama, the entire copyright claim appears to turn on whether Rearden’s outputs are in fact copyrightable at all.

MOVA Contour’s Outputs

As an example, Mark Ruffalo goes into a motion-capture studio where he grins, shouts, pouts, growls, and raises curiously adorable eyebrows in the mode of his inner Hulk.  He may be directed by the film’s director or some other member of the creative team, or he may self-direct to produce all the faces needed for every scene in which Hulk will appear. These performances, fixed in the computer drives during the process, are indisputably the property of Marvel Studios, which is owned by Disney.

The captured data, consisting primarily of multiple two-dimensional images is then input into the MOVA Contour system, where the software renders a pair of three-dimensional outputs:  what Rearden calls a “Captured Surface” and a “Tracking Mesh.”  These two assets then serve as a highly-detailed, digital armature onto which Marvel-employed animators then composite the CG Hulk, who will then grin, shout, pout, growl, and raise curiously adorable eyebrows in the movie, looking just enough like Mark Ruffalo to make the character transformation seem organic.

Rearden’s Claim

Rearden asserts that, although the Captured Surface and Tracking Mesh are never displayed in the final movies, these two outputs are, nevertheless copyrighted works and, therefore, every CG-composited element built upon these outputs is a “derivative work.” So, absent a licensing agreement to use the software and transfer ownership of the outputs to the licensee, the studios are alleged to have infringed Section 106(2) of the copyright act, which protects the derivative works right.  Indeed, if this claim has merit, it would be quite staggering to consider the number of infringements implicated.  One can almost hear the Hollywood-bashing copyright-haters chomping at the bit; but if that’s the case, they might want to belay the schadenfreude.

I imagine the studios’ motion to dismiss will be denied because the allegations seem to warrant further proceeding. But even if the copyright claim goes far enough to render an opinion by the court, I believe there is ample evidence in both scholarship and case law to conclude that Rearden’s outputs are not copyrightable and, therefore, cannot implicate the derivative works right.

Is MOVA Like Other Software Used to Make Creative Works?

At first blush, one might assume that the MOVA software is akin to using Word or Photoshop, which are used by authors all the time without any fear that Microsoft or Adobe can claim a copyright in the works made with these products—even if the author pirates the software!  But, Rearden counters this premise by saying that because their software produces a specific, repeatable output fixed in a medium, and because this output is produced almost entirely by the “labor” of the software, the analogy to Word isn’t quite right.

The difference they claim relies heavily on the case TorahSoft v. Drosnin (2001) in which defendant Michael Drosnin published a book based on outputs (effectively search results) that were exclusively the products of plaintiff ToraSoft’s algorithm. Rearden appears to be clinging to language in this opinion that supports the possibility that the output from computer software could be copyrightable; but the lion’s share of the opinion actually provides reasons why TorahSoft’s output was not copyrightable. And because much of the court’s reasoning in that case seems applicable to Rearden’s claim, it may be a risky citation.

In response to the assertion that MOVA is comparable to Word or Photoshop, Rearden states,“…in neither case does their work provide input to software that synthesizes an original expression that is distinct from the author’s or artist’s input.”  I wonder if that is, or should be, the standard. After all, between my writing these words and you’re reading them, there are several software authors whose work renders my expression into intermediary “works” that, if they were indeed copyrightable, would mean that everything created with digital tools is a derivative work of underlying works belonging to the tech companies of the world.  I don’t think the courts would view this outcome as compatible with the purpose of copyright.

Are MOVA’s Outputs Expressions or Copies?

Curiously enough, the “sub-millimeter precision” with which MOVA Capture does its job may be the evidence which most disfavors a finding that its outputs are copyrightable.  The standards for protection are “originality” and a “modicum of creativity.”  Originality literally means that the work is not a copy, and so far, “creativity” has been limited to works produced by humans. We may yet address copyright protection for works that are substantially produced by AIs, etc., but in this case, it seems Rearden is arguing that the human expression embodied in the software is tantamount to authorship of the software’s output, which it claims is separately “creative.”

While this may be possible in some circumstance, as TorahSoft seems to imply, I suspect Rearden’s argument will find slippery ground because the courts will view the purpose of MOVA software as one of making copies of performances that are the property of the defendants.  In this context, I believe Rearden’s software, especially as a component of the entire system, may be compared to patented devices that capture images which would strain to meet the standards for protection.

Copyright scholar Justin Hughes, whose paper on photography I have cited in other posts, asserts that a vast quantity of images—security camera footage, satellite photos, Google Street captures, even photos of public-domain paintings sold as postcards—should not stand up to claims of copyright because they lack the modicum of human creativity required for protection.  Assuming Hughes is correct, Rearden’s claim of copyright in its outputs would seem to fail under the same analysis.

More specifically, the case that comes to mind in answer to Rearden’s claim is Meshwerks v Toyota, decided in 2008 by the Tenth Circuit Court of Appeals. In that situation, Meshwerks asserted copyright protection in the outputs from its capture technology used to produce 2D, digital models of Toyota cars for advertising purposes. Supplier Meshwerks actually performed a considerable amount of creative labor—in collaboration with software—to produce the outputs. This stands in contrast to Rearden, whose claim relies solely on the products of the software.  Nevertheless, and with stated respect for the amount of work involved, the court held that Meshwerks outputs were not copyrightable because their purpose was to create the best copies possible of designs belonging to Toyota.  From the opinion, which partly quotes Nimmer on Copyright:

It is certainly true that what Meshwerks accomplished was a peculiar kind of copying.   It did not seek to recreate Toyota vehicles outright-steel, rubber, and all;  instead, it sought to depict Toyota’s three-dimensional physical objects in a two-dimensional digital medium.   But we hold, as many before us have already suggested, that, standing alone, “[t]he fact that a work in one medium has been copied from a work in another medium does not render it any the less a ‘copy.’ ”

So, if we compare this to Rearden’s claim and the Hulk example, Disney certainly did not design Mark Ruffalo, but they do employ him to perform the only creative work in this entire process—that of making faces as Hulk.  And I would argue that, akin to Meshwerks, the function of MOVA software is to copy that performance (in this case, from 2D to 3D). In fact, it is the triumph of the system’s capacity to deliver such precise copies which disfavors a conclusion that its outputs are “original” expressions of “creativity.” The process is no more creative than a CAT scan—far less creative, it seems, than the work performed by Meshwerks, which was held not to meet the standard of protection under copyright.

It’ll be interesting to see if any of the usual anti-copyright suspects come out to play on this one.  Presumably, they should disfavor Rearden’s claim of copyright for many of the reasons cited here, but siding with Hollywood studios may be more than they can bear.

Image by kentoh.

Does the Internet Archive Need the Copyright Rhetoric to Be Useful?

Photo by fotoduki

Recently, a tweet caught my eye on the #copyright thread—something about the late Congressman Sonny Bono and a new collection at the Internet Archive, which is the vast digital library founded by technologist and entrepreneur Brewster Kahle.  The tweet linked to a blog post by Kahle announcing that a collection of copyrighted works published between 1923 and 1941 had been “liberated” and is now available on what the Archive has named The Sonny Bono Memorial Collection.

The eponym is not an honor of course. It’s a posthumous snipe at Bono, who is credited (or blamed, depending on one’s point of view) for the Copyright Term Extension Act (CTEA) of 1998, which added 20 years to copyright protection, resulting in the current term of life of the author plus 70 years.  Kahle’s post is bulked out with a lot of standard rhetoric condemning the duration of copyright, repeating the misleading narrative that Mickey Mouse was a major reason for the CTEA, and imply rather obtusely that the original 14-year, single-renewal term of 1790 ought to still be the law of the land (because of course the world functions much as it did in the late 18th century).  All that noise aside, however, the new collection with the sarcastic name is made possible by what Kahle calls, “a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold.”

Let me interject to say that the Internet Archive is impressively handy.  I’ve already found a number of intriguing sources for a research project I’m just beginning; so, what follows is not an indictment of this or any other library, whether physical or digital.  I love libraries. But the reason for highlighting Kahle’s derisive tone is that it seems that there’s a lot of unnecessary conflict being sown between contemporary librarians and copyright law. And the crux of Kahle’s own announcement about this new archive underscores just how unnecessary the conflict is. To begin, Section 108(h) of the Copyright Act is not quite so arcane as he implies.

The statute was created as a specific carve-out for libraries, reflecting a compromise to attain passage of the term extension in 1998.  The exception allows a library to copy and make a work available during the last 20 years of its term of copyright protection, if copies of the work are not commercially available at a reasonable price. There are more conditions to the statute, but the underlying rationale is common-sensical enough. If these “Last 20” works are no longer available in the market—and high-priced, rare copies don’t count—then libraries are allowed to fulfill their mission by making the works available for the purposes of research and scholarship.  Meanwhile, the existence of the 108(h) exception, including proposals to amend it, actually rejects the attitude that Kahle and others sometimes adopt which ultimately pits authors against libraries.

New Scholarship on Section 108(h)

The challenges for a library wishing to apply 108(h) include research capabilities to learn the copyright status of works, and vagueness in the statute that can make proper analysis difficult. Enter Professor Elizabeth Townsend Gard, a copyright and history scholar at Tulane University. In collaboration with colleagues and students, she produced a 103-page paper, released this month, entitled Creating a Last Twenty (L20) Collection:  Implementing Section 108(h) in Libraries, Archives and Museums.

Gard’s paper offers two major contributions:  1) a comprehensive methodology for qualifying organizations to make effective use of the 108 exception in order to build what she calls “Last 20 Collections”; and 2) suggestions for possible revision of the statute in order to address what she sees as unnecessary gaps that leave organizations in limbo with regard to qualification and implementation. The heart of the paper is dedicated to methodology, in which she describes a taxonomic approach to identifying works, combining standard library cataloging systems with copyright data to yield the information required to know if a work is eligible for the 108(h) exception.  Given the amount of complexity involved, and the fact that I am neither a librarian nor an attorney, I cannot fairly comment on the system.

With regard to the statute, the US Copyright Office published its Model Statutory Language for revision of Section 108 in September of this year.  Gard commends some of the proposed changes and critiques others, making several recommendations that sound reasonable. For instance, she advocates better clarification of the extent to which the “used” market honestly represents “availability” of a particular work in fulfilling the purpose of 108(h). Some of her proposals may find critics at the USCO or among various stakeholders; but suffice to say, her work reads like a sensible foundation for compromise, which can be a rare find in contemporary discussions about copyright.

Making Section 108(h) Work is Not an Anti-Copyright Statement

Gard’s work represents a counterpoint, in my view, to many positions adopted by the ALA and related organizations, which have spent considerable energy aligning their interests with for-profit, technology companies in the hope of expanding—through litigation—the fair use exception and/or the first sale principle.  This approach seems both ideologically and pragmatically flawed, especially where the for-profit ventures clearly try to strain the underlying legal principles involved.

Libraries, archives, and museums, which exist for the primary purpose of advancing scholarship, deserve special consideration that is not accorded (and neither should it be) to for-profit ventures—or necessarily all non-profit ventures.  While the internet does create unprecedented opportunities for providing access to works that can lead to new areas of scholarship and new forms of creative expression, it also creates unprecedented incentive (i.e. crazy-big money) for various parties to try to blur the line between public-serving and private-interest ventures. Legitimate institutions of scholarship that ally themselves with this kind of vagueness are, in my view, working at cross-purposes with efforts like those of Professor Gard, whose proposals seek clearer guidelines for the types of institutions that deserve exceptions like Section 108(h).

To put this in context, there is nothing that necessarily bars a public-serving and privately-held platform like the Internet Archive (or Wikipedia) from becoming a monetized business venture, either independently or by selling all or some portion of its enterprise to a larger entity like Google.  Or if the Internet Archive were to earn revenue by selling its user data, this should run afoul of Section 108’s prohibition against using a “Last 20” collection to attain “indirect commercial advantage” for the archivist. I’m not saying the Internet Archive will do this, but if we keep in mind that indirect commercial advantage is the mechanism by which giant internet businesses make content “freely” available to the public, this awareness should inform any new statutory contours for an exception like 108(h).

Referring back to Brewster Kahle’s post, he quotes Carrie Russell, Director of ALA’s Program of Public Access to Information thus: “I’ve always said that the silver lining of the unfortunate Eldred v. Ashcroft decision was the response from people to do something, to actively begin to limit the power of the copyright monopoly through action that promoted open access and CC licensing.”  Eldred is the Supreme Court decision upholding the constitutionality of the CETA, and Russell’s statement here is frankly incomprehensible in a blog alluding to Gard’s efforts to make an existing, statutory limit on copyright work better.

Kahle himself seems unclear about the difference between the nuance in Gard’s work and his own desire to evangelize the bad-manners approach to copyright typically employed by Silicon Valley corporations. He writes, “Now it is the chance for libraries and citizens who have been reticent to scan works beyond 1923, to push forward to 1941, and the Internet Archive will host them.” That makes it sound as though Gard’s work just opened the flood-gates and that anyone should feel free to upload anything to the Internet Archive as if it were YouTube. Does this mean the Internet Archive will then do the 108 analysis before hosting, or that they’ll just duck behind the safe harbor of the DMCA?   Either you’re an entity that responsibly qualifies for the 108 exception, or you’re an ideologue eager to stick it to rights holders.  You can’t be both.

Professor Gard’s work strongly highlights the fact that carve-outs for libraries already exist in the copyright law; and where these statutes may not function as intended, they can be amended through good-faith collaboration with the USCO, stakeholders, and Congress.  To achieve this collaboration, however, the librarians and archivists would do well to tone down some of the rhetoric implying that the interests of preservation and research are incompatible with the interests of authors. It is plainly absurd for librarians and authors to be at odds, even in the digital age.

Speech Maximalism on SESTA is Madness

This refrain keeps playing over in my head lately:  The EFF and its sister organizations are to cyberlaw as the NRA is to rational gun policy in America.  That seems like a pretty harsh thing to say about a bunch of progressives (and one must even include the ACLU in this discussion), but in the context of policy debate, the maximalism with which these organizations continue to defend the liability shield (Sec. 230) of the Communications Decency Act (1996) on behalf of a single multi-billion-dollar industry is logically comparable to the maximalism with which the NRA has marketed so much ahistorical nonsense about the Second Amendment on behalf of gun manufacturers.

While it’s hard to look away from the circus playing round-the-clock at the White House, it is certainly necessary to look beyond it.  The story of where American democracy is heading is not Donald Trump, though it may be (metaphorically speaking) Elon Musk.  The fact that Musk announced he could power Puerto Rico in response to official U.S. dithering is both intriguing and generous, but it is also a frightening commentary on the condition of the American state.  Even as an idea, Musk’s offer is a subtle harbinger of the tipping point I fear we may be approaching—that the state becomes so dysfunctional, the people turn to the oligarchy of technologists and say, “save us” from ourselves. At that point, American democracy will come to an end. Cue 21st-century American feudalism.

Before we head quite that far into a sci-fi thriller, though, we are truly at an inflection point when the fate of a couple of bills in Congress will say a lot about how much power and influence Google and the other major internet players have in Washington.  H.R. 1865 and S. 1693 (SESTA) would amend Section 230 of the CDA to explicitly prohibit online support of trafficking minors in the sex trade and thus open pathways to both civil and criminal prosecution.  These bills are largely a response to allegations stemming from investigations into Backpage, which the National Center for Missing and Exploited Children estimates is how 73% of all children trafficked in prostitution are bought and sold.

I am told by various contacts in D.C. that Google’s lobbyists—parent company Alphabet now ranks among the top five spenders in the country—have been out in force to kill these anti-trafficking bills in committee. Meanwhile, the EFF and other Google-funded organizations have the unenviable task of telling the American people—once again—that free speech on the web will suffer if we pass legislation designed to help protect children from sex-trafficking.  As explained in a previous post, SESTA proposes a change in the Section 230 statute that is so narrow it could never affect the vast majority of internet users.

Your site would have to be a lot like Backpage, or would have to be as big as Google or Facebook just to be in the orbit of potential liability under SESTA.  Even a pornography site that might inadvertently host video depicting sex acts with trafficked minors (and that’s a big hypothetical) would not necessarily be liable under SESTA because, depending on what actions the site owners were to take, they could still qualify for the safe harbor provisions of Section 230.  Any implication that the vast majority of us who do not run globally substantial sites, or who do not use the web to conduct transactions in the sex trade, will somehow feel a tremor in the force of free speech is rank hysteria.

But Google, with all its wealth and influence, would rather not have so much as a pinhole of liability pierced into the CDA shield—even if it means providing a modicum of legal remedy for victims of sex-trafficking by prosecuting individuals who have nothing whatsoever to do with Google. I can only imagine there must be a few members of the EFF who are either experiencing moral crises over this issue, or downing 10 a.m. shots just to quiet the cognitive dissonance because they’ve got to know their free speech arguments against SESTA are complete hogwash.

Overcoming Free Speech Maximalism

In the same way that the NRA markets a message that guns create freedom, the internet industry has sold a very similar maximalist view that the First Amendment is perpetually strengthened by the immeasurable volume of interactions on the internet.  Just as the American who owns ten guns is not ten times freer than the American who owns one gun, the American who tweets a hundred times a day is not freer than the American who doesn’t have a Twitter account at all.  Nevertheless, when one reads the declarations insisting that every peep uttered in cyberspace is sacred, it is hard to miss the rhetorical similarities between the NRA and the internet activist organizations.

Like anyone with a maximalist view—or a financial stake in espousing one—both the NRA and the EFF reveal a callous disregard for the harm being done by the policies they endorse.  The EFF hasn’t explicitly said “child sex-trafficking is the price we pay for freedom,” but that’s effectively the argument they’re making with their overplayed appeals to the First Amendment in context to SESTA.  Adding further to this irony is a complete disregard for the fact that the internet as we know it is actually making quite a hash of the democratic principles which the protection of speech is meant to serve.

In almost the same manner in which Citizens United undermines the intent of speech by giving a louder voice to financially empowered corporations, the economics of the web do the same thing more broadly and more insidiously.  If it is fundamental to American democracy that the population has access to relevant and accurate information, it is no surprise that the economics of attracting and monetizing web traffic fails to serve this purpose. (Or have I missed something and American democracy is healthier than ever?)  Journalism (i.e. information) is supposed to be the practice of telling people what they need to know while the design of the web we have is fundamentally built to tell people what they want to hear.

Adaptive algorithms that anticipate our interests, biases, and desires are relatively innocuous, perhaps even beneficial, if we’re shopping for toasters; but these designs can be toxic to democracy when we’re “shopping” for news.  In a solid, concise OpEd for Forbes about the folly of current support for Obama-era net-neutrality policies, Fred Campbell calls the internet as we know it “a mess.” “Policies that net neutrality advocates are clamoring to preserve have facilitated the internet’s roles in undermining fair elections, providing a safe haven for sex traffickers, destroying privacy, nurturing the world’s largest information monopolies (e.g., Google, Amazon), subverting free speech, and devastating publishing industries,” Campbell writes, suggesting that we should let the internet be overhauled because it’s hardly living up to the vision of its founders in the 1960s.

Campbell cites a paper by Professor Shoshana Zuboff of the Berkman Center for Internet & Society; Harvard Business School (an organization typically aligned with internet industry views), who calls the current economics of the web surveillance capitalism.  “This new form of information capitalism aims to predict and modify human behavior as a means to produce revenue and market control,” Zuboff writes.  That description certainly rings true with experience and hardly seems to jibe with the foundational assumption that the internet is “the greatest tool for democracy ever created.”

In 1783, in the uncertain period between the end of the American revolution and the establishment of the United States, Alexander Hamilton wrote to John Jay, “It is hoped when prejudice and folly have run themselves out of breath, we may embrace reason and correct our errors.”  He was referring to the many competing forces driving people away from the establishment of a unified nation.  Today, Hamilton could easily be talking about Facebook and Twitter because it would be hard to make the case that the internet is not, on balance, having a centrifugal effect on the electorate.  As such, free speech maximalism is  not only specifically immoral as a response to a bill like SESTA, but it is also generally untenable as a premise for broader debates about cyberlaw.

Image by stawy13