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.

Librarian Critics Prove Need for Independent Copyright Office

Library of Congress Interior (1900)
Library of Congress Interior (1900)

On December 8th, the House Judiciary Committee announced its first policy proposal since beginning its review of the copyright law in the Summer of 2013. Among these early recommendations is that the Copyright Office should operate independent of the Library of Congress while remaining part of the Legislative Branch.

Not surprisingly, copyright critics have already complained about this proposal, including a number of university librarians who took umbrage at a November 28 letter to the Committee written by former Registers of Copyright Ralph Oman and Marybeth Peters.  The former Registers voiced their immediate displeasure at the tone and timing of the dismissal of Register Pallante on October 21 by the new Librarian of Congress Dr. Hayden; but they further expressed the view that this sudden and unprecedented firing signaled that it is finally time for the Copyright Office to operate independent of the Library.

Brandon Butler, J.D., Director of Information Policy at University of Virginia Library is the author of a letter signed by 41 other college and university librarians, which rebuts Oman and Peters and the proposal to move the Copyright Office out from under the auspices of the LOC. The letter itself stresses what may be described as a semantic and cultural kinship between copyright and librarians. For instance, in citing the goal “to promote progress” from the IP clause, Butler writes, “Libraries share this core purpose and promote cultural progress in numerous ways, from massive financial investments in the acquisition and licensing of copyrighted works to the curation and preservation of our cultural heritage.”

This is certainly true, and nobody should doubt the vital role of libraries in general or the treasure that is the Library of Congress in particular.  But many institutions, both public and private, promote cultural progress without anything to recommend them as the nation’s copyright authority.  Although Butler correctly notes that he and many other librarians have considerable expertise and, thus, provide many authors and users of works with guidance in copyright, this is hardly germane to the larger point.  Simply because universities have fine medical schools and hospitals, that doesn’t mean the Surgeon General’s office should operate within the Department of Education.

Yes, librarians perform a wide range of incredibly valuable tasks, including assisting their users with copyright law, as Butler describes. But the mere fact that he and others fail to acknowledge a distinction between these functions and those of the Copyright Office is proof in itself of the need for separation. Moreover, the Butler letter—albeit in lighter tones than other critics—does not scruple to jump on the bandwagon in accusing the Copyright Office of serving a narrow group of beneficiaries (i.e. corporate rights holders) of the copyright law.  This is an accusation without merit, and librarians should be more rigorous than to cite the undisciplined PR of activist groups.

That PublicKnowledge has made this assertion, based on its own cobbled-together “report” composed of innuendo and opinion, is no surprise; but the librarians of these institutions should be more forthright in their presentation of both the historic and contemporary functions of the Copyright Office.  Again, this lack of rigor is evidence that librarians can be as culturally biased as any other group and, therefore, ought to be represented at the table rather than preside over it.  Additionally, Butler’s letter does not acknowledge that indeed his colleagues have advocated that the Librarian of Congress take a more active policy-shaping role, which would effectively overturn the historic role of the Register under the current organizational structure.

As described in a previous post, the Librarian of Congress has never truly shaped copyright policy in the United States.  Oman and Peters call the organizational relationship between the LOC and the USCO an “accident of history,” and although Mr. Butler rejects this statement, he is simply incorrect.   The initial relationship was very much circumstantial, with precedents set during the Lincoln administration—a time when American courts were just figuring out what our copyright law actually means, while the Librarian was trying to find a place for all the manuscripts literally piling up on the Library floors.  This was a period marked more by extemporaneous troubleshooting rather than any kind of fleshed-out policy role for either the Library or the soon-to-be-established Copyright Office.

When the Copyright Office was created in 1897, it was predicated on a clerical relationship between registration and the growing collection; and copyright law itself had barely begun to deal, for instance, with the influence of machines on creative works.  As the law evolved in complexity through the 20th century, the Copyright Office likewise evolved as a multi-faceted agency that advises the courts, Congress, and the public on a dynamic range of issues specific to copyright law. Although the USCO has operated within the Library, the Librarian has historically deferred to the Register as the nation’s copyright authority. Hence the current proposal to make the Office independent is consistent with the role played by the Copyright Office for more than a century.

It is only fairly recently—with the introduction of digital technology—that more pronounced policy differences have become manifest between the Librarian and the Register—culminating with the surprise firing of Maria Pallante without so much as a heads-up to Congress.  Digital technology poses new challenges and opportunities for authors, rights holders, and libraries. Butler’s overemphasis of his and his colleagues’ expertise in copyright implies that the Librarian’s views on future copyright policy should become dominant for the first time in history, purely by virtue of a  traditional hierarchy that has no foundation in serving the Legislature, the courts, or the public.

In Butler’s letter, he writes, “Cultural institutions and the Copyright Office are natural allies.” He is absolutely right.  Allies meet on equal terms to discuss matters of cooperation and conflict. The librarians’ suggestion that there are no conflicts, or that such conflicts are best solved by one ally remaining subservient to other, is once again proof that the Judiciary Committee’s proposal for separation is as timely as it is soundly reasoned.

A Free Press Needs to Be Expensive

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Photo by stocksnapper

As a follow-up to my last post, I see that the Electronic Frontier Foundation has (not surprisingly) also accused the News Media Alliance (NMA) of petitioning the incoming administration to “weaken fair use doctrine” and, by extension, threaten press freedom itself.  Granted, in contrast to Mike Masnick’s ad hominem style on Techdirt, when EFF obfuscates, they usually write a more sober, mature-sounding article, but readers should not be mesmerized by the parlor trick.  Because they’re still not telling the whole truth.

At a time when Americans are suddenly realizing that professional journalism may be more important—and more under siege—than ever, both citizens and advocacy groups like EFF should remember that good journalism is expensive.  If we don’t want news to devolve entirely to the glib gotchas of Twitter, then somebody has to invest in the reporters, researchers, editors, etc. who develop the skills and experience to cover stories with integrity.  In order to make those investments possible, to say nothing of profitable, publishers have to retain the right to protect and exploit the products of this labor through distribution models of their choosing.  So, while fair use doctrine is unequivocally necessary for journalism, this reality is not in conflict with the need for news publishers to protect their copyright interests at the same time.

Frankly, in light of the fact that the anti-copyright policies advocated by EFF and similar organizations have played a substantial role in creating information havoc, like the fake news problem, I think when it comes to the press, these groups ought to be rubbing gravel in their hair—or at least sent to their rooms to think about what they’ve done. Years of blind—and greedy—advocacy of anything goes under the ambit of the First Amendment is a major reason why real journalists have to compete with bogus ones,  and why news organizations continue to have their investments threatened by various platforms and tech interests that appropriate their work.

In the EFF’s version of accusing the NMA of trying to weaken the fair use doctrine, they  set up a straw man and then point to a bunch of unrelated “evidence” to support the accusation.  As stated in my last post, the NMA’s white paper does not seek any revision to the fair use principle, but it does call into question the relatively recent, broadening interpretation of the “transformative” standard within fair use analyses.  The EFF article might give readers the impression that this standard is a well-grounded and longstanding legal principle, but that simply isn’t the case.

If we bracket the “transformative” standard between the first major application in Campbell (1994) and the most high-profile, current case, Google Books (2016), we see that we’re dealing with two very different meanings of the word “transformative.” ”Transformativeness” in Campbell entails a use to create a new expression while “transformativeness” in Google Books entails a use to create a new service that is not an expression. While both uses can be valuable, and even described colloquially as “transformative,” it is misleading to suggest that the case law in which this standard has been applied is consistent, given the divergent meanings of the term.

It is the application of the latter standard that is of concern to many rights holders, including news publishers. This is because the latter interpretation substantially alters the original intent of fair use, which is to favor the First Amendment, to a more generalized standard of “creating some new thing,” which may not be a form of expression at all. It is also worth noting that most uses by journalists have always been protected by fair use principles that existed prior to the introduction of the “transformative” standard by Pierre Leval in his 1990 Harvard Law Review paper.

The truly insidious part of this story is that the EFF has been directly responsible for morphing fair use doctrine in both the courts and the court of public opinion.  With its decade-long boondoggle in Lenz v UMG, and its chronic implication that fair use is the antithesis of copyright (rather than an important component of copyright), the EFF fails to recognize that its advocacy in this regard can be more harmful to free expression and a free press than the concerns it claims to address.  While the organization defends the role of aggregators and other platforms that make uses of works they did not author, the EFF ignores some of the very negative results of this policy, which have become starkly manifest in recent weeks.

For instance, the violent assaults on a Washington, DC pizzeria as the consequence of fake news is not exclusively a story about criminal instigators and idiot readers. It is symptomatic of a disease caused when serious journalism is given equal footing with the ravings of every crackpot or miscreant with a keyboard.  This trend has been toxic for the press, and it is naive to think that defending every use and every expression on First Amendment grounds has not been an aggravating factor in this case.

In some instances, news aggregators do not merely provide access to news, but they often strip news of context or substance by repackaging segments in a manner that may be good for driving traffic but do disservice to the goals of journalism.   Press freedom is utterly meaningless unless we support a professional press, and the News Media Alliance is correct to observe that relatively recent distortions of the fair use principle have played a role in threatening that professionalism.

Masnick Makes a Hash of Fair Use & Censorship

Photo by Pond5
Photo by Pond5

In an effort to conflate president-elect Trump’s rhetoric on censoring the press with copyright protection, Mike Masnick at Techdirt accuses the News Media Alliance of seeking to “whittle down” fair use. He further says this will only leave journalists vulnerable to the kind of censorship Trump has threatened by amending libel laws.  There are too many holes in Masnick’s post to address efficiently, so I’ll stick with the main point about fair use doctrine. The Newspaper Association writes the following:

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.”

For starters, this statement isn’t asking anyone to “whittle down” fair use. Instead, the News Media Alliance is simply asserting what many copyright experts and rights holders have observed, which is that the “transformative” standard is in fact a relatively new and often-vague principle that has become something of a vestigial fifth factor not codified in the 1976 Copyright Act.  In fact, “transformativeness” began as a measurement of creative transformation in the landmark case Campbell v Acuff-Rose but has since been applied in broad contexts in which uses are “transformative” of something other than the original work to create a new expression.  

So, “transformativeness” can exceed the original free-speech motivations for codifying fair use into the federal law in the first place.  And that in itself is not inherently bad; we want law to be elastic to a certain extent, otherwise copyright itself could not have adapted to changing market and technological conditions. 

Having said that, however, the “transformative” standard has come dangerously close to asserting that simply using a work in a new context—like posting it on social media—is “transformative” enough to make the use fair.  So, the Alliance is not attacking fair use doctrine at all, as Masnick asserts, but is rather seeking to mitigate what many rights holders view as an irrational expansion of the doctrine until it ceases to be an exception at all.  

The part where Masnick accuses the Alliance of playing into Trump’s censorship hands is just a malarky cocktail well spun.  He writes the following:

“While [Trump] was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.”

Masnick is mashing up unrelated topics to argue the interests of OSPs like Google and taking the opportunity to use the words copyright and censorship in the same sentence. As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the “transformative” standard being referred to by the News Media Alliance. 

For instance, I noted in a past post that a FOX Network initially sought to argue that its use of another news agency’s photograph was “transformative” simply because it was posted on their Facebook feed.  That argument didn’t get very far, but it’s the kind of argument rights holders are nervous about arriving in the courts; and it has nothing at all to do with legitimate concerns about a president threatening to use libel laws to silence the press. For another perspective on how the “transformativeness” standard can come very close to effectively obliterating copyright, see this post about TVEyes v FOX News.  

As usual, the internet industry and its advocates behave as though their platforms, which make unlicensed uses of all manner of works, are synonymous with free speech or freedom of the press.  From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright.  That is ludicrous.