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.

ITC Ruling Shows Need for Congressional Reform

In August, I wrote a post criticizing the editorial board of The New York Times for espousing Silicon Valley talking points rather than considering the broader aspects of a case concerning the International Trade Commission (ITC).  At issue was the ITC’s claim that it had the authority to enjoin the importation of digital data being used by a company called ClearCorrect to infringe the intellectual property of Align Corporation.  The ITC does have the authority to stop the importation of “articles that infringe” and it argued that “articles” may include digital files; but this week the Federal Court of Appeals rejected the ITC’s claim of authority in this case.  Citing more than ample precedent that the statute does not allow for an interpretation of “articles” to mean anything other than tangible items, part of the decision reads:

Here we conclude that the literal text by itself, when viewed in context and with an eye towards the statutory scheme, is clear and thus answers the question at hand. “Articles” is defined as “material things,” and thus does not extend to electronic transmission of digital data.

Readers should note, however, that the decision is narrowly focused on the definition of the word “articles” and the authority of the ITC based on that definition.  The court is entirely silent regarding any of the broad “free flow of information” criticisms fearful of granting ITC this authority in principle.  In fact, the court concludes thus:

Under these circumstances we think it is best to leave to Congress the task of expanding the stat-ute if we are wrong in our interpretation. Congress is in a far better position to draw the lines that must be drawn if the product of intellectual processes rather than manufacturing processes are to be included within the statute.

In short, the statute and corresponding authority granted to the ITC may be considered by Congress as antiquated in the global digital market, and Congress may consider expanding the statute to anticipate the potential harm of importing intangible “articles” by electronic means.  Indeed, as cited in my first post, the Center for the Protection of Intellectual Property pointed out that this ITC remedy was expressly recommended by the Internet industry as an “alternative” to SOPA.  If granting ITC authority would not have “stopped the free flow of information” in 2011, it is unclear why it would do so in 2015.  Congress should consider broadening the statue to grant ITC this authority for the protection of American companies practicing fair trade.

Don’t Blame Disposability on Copyright – Part I

In a recent post on Techdirt, Parker Higgins plays a somewhat familiar refrain when he blames copyright for causing a general extinction—or inaccessibility—of various works. Describing a kind of dark ages for researchers, historians, and journalists— whether amateur, student, or professional—Higgins presumes to draw a very big conclusion in a very short post and consequently begs more questions than he bothers to answer.

Right off the bat, if we really are seeing an unprecedented dearth of available works in the categories Higgins cites—published books, news archives, historical research, investigative journalism, photographs—then each of these subjects wants its own discussion since the production, distribution, and preservation of works in each discipline are distinct from one another.  But I suppose if one is going to casually declare that “Stuff is disappearing all because of copyright,” then perhaps lumping all stuff together makes a perfectly adequate blog post for people inclined to believe the premise in the first place.

Referring to the National Digital Newspaper Program, an archive that apparently contains no sources more recent than copyright’s 1922 boundary, Higgins makes this slightly overwrought declaration:

“…the dark cloud of copyright’s legal uncertainty is threatening the ability of amateur and even professional historians to explore the last century as they might explore the ones before it.”

In this context, I suppose we are meant to conclude that “uncertainty” (i.e. complexity) in copyright is confounding this newspaper archive program, even though Higgins states that they rather certainly do not digitize works from 1923 onward. So, it’s not clear where the confusion lies for the program’s administrators. But even if the 1923 constraint (i.e. length of terms) is itself worthy of debate, the more audacious part of Higgins’s statement can hardly be meant to be taken literally.  Regardless of the copyright status of any particular project, archive, or work, I am reasonably sure that it’s still easier to explore the 20th century in greater depth than, say, the seventeenth.  Heck, some of us still kicking actually remember the 20th century.

But I don’t mean to entirely dismiss the point Higgins is making.  Naturally, works that do exist from any period up to the early 20th century may, without copyright restriction, be digitized and organized into a useful archive for the amateur or professional researcher.  In fact, while working on my post about Van Gogh, I referenced an incredible archive representing fifteen years worth of labor by researchers and historians working with the Van Gogh Museum in Amsterdam. Not only have they made all of Vincent’s correspondence available, but the writings are complexly cross-referenced and searchable with insights, footnotes, and related drawings.

And while it is true that Van Gogh’s works are in the public domain, it does not stand to reason that this database could never have existed otherwise.  In fact, this particular archive is so good, so painstakingly assembled, that it earns a natural exclusivity, which could easily have been compatible with licensing the works or collaborating with an estate, if that had been necessary. The point is that preserving many types of works in a meaningful way takes desire, talent, and resources that can be far bigger hurdles to overcome than copyright protection.  Meanwhile, random, free-range copying of works motivated by a wide range of purposes is not necessarily sufficient to effect valuable preservation. And copyright’s complexity or length of terms is unlikely to be the only catalyst—if it is a catalyst at all—among the forces that foster disposability, not the least of which is digital technology itself.

As a broad observation on this matter, it is curious that those who preach the value of “abundance” bestowed upon society by digital technology—and this is certainly true of Techdirt’s editorial gist—fail to consider that with increased volume in the production of anything, disposability will likewise increase.  And this is particularly going to be true with intangible commodities like creative, scholarly, and even amateur works that have increased exponentially with the advancement of digital tools for production and distribution. We read, watch, listen to, and share more stuff on a daily basis than at any time in history, but I suspect we also mentally discard a great deal of it and move on to the next pile of stuff the next day—or the next minute.

And this is in fact how Web 2.0 is designed to function economically—not as an archive of all knowledge as it is sometimes loftily described—but as a system that financially rewards the sites that can draw attention to whatever is trending in the nano-present. Whether it’s an expert analysis of a global trade agreement or the current disposition of Kim Kardashian’s butt is irrelevant to the economic interests of the site owner. Clicks is clicks. And daily traffic is what puts money in the bank.  (This, by the way, is why even the expert analysis of a trade agreement, might display a photo of Kim Kardashian’s butt in the sidebar.)  The motivation to preserve and to archive valuable works, is a wholly separate matter from these economic drivers; and it turns out that even important stuff can disappear from the Web at an astonishing rate for reasons having nothing to do with copyright.

In this regard, I’ll draw your attention to the article cited at the end of Higgins’s post, a very interesting story by Adrienne Lafrance writing for The Atlantic.  The centerpiece of her article is journalist Kevin Vaughn, who in 2006, while working for The Rocky Mountain News, began researching the families affected by a terrible incident in 1961 in which a train collided with a bus.  His work ultimately led to a multi-part web series called “The Crossing,” which drew tremendous support from the local community expressing a deeply personal connection to the tragedy.  Then, as Lafrance writes, “In 2008, Vaughan was named a finalist for the Pulitzer Prize in feature writing for the series. The next year, the Rocky folded. And in the months that followed, the website slowly broke apart. One day, without warning, “The Crossing” evaporated from the Internet.” Lafrance goes on to describe how Vaughn was able to resurrect at least part of “The Crossing” from assets saved to a DVD, but the point of the story seems to be the ephemeral reality of the Web contrasted with its illusion of permanence.

It’s worth noting that Lafrance’s article never mentions copyright in any context whatsoever.  Instead, I would argue that what we learn from the piece overall is that the motivations, processes, and resources necessary to preserve anything are much the same as they were in pre-digital times, but that there are even greater challenges with digital and web-based assets than with physical ones. Namely, they are inherently easier to lose. And above all, it is folly to believe that online is synonymous with forever.

“Saving something on the web, just as Kevin Vaughan learned from what happened to his work, means not just preserving websites but maintaining the environments in which they first appeared—the same environments that often fail, even when they’re being actively maintained. [Alexander] Rose, looking ahead hundreds of generations from now, suspects ‘next to nothing’ will survive in a useful way. ‘If we have continuity in our technological civilization, I suspect a lot of the bare data will remain findable and searchable,’ he said. ‘But I suspect almost nothing of the format in which it was delivered will be recognizable.’”

So, it is odd that Higgins would even cite this article to support a thesis that copyright is the culprit in the loss of important journalism, when Vaughn’s conflict was in fact one with technology.  The only lesson the preservationist can reasonably take from this example, or from the broader points made by Lafrance, is that both the will and the resources to preserve an archive must exist prior to an event (e.g. a business closure) that can shut down a web platform, leaving behind not even a scrap of paper as a primary source.  No doubt, most of us with hard drives full of unsorted, digital family photos can relate to this challenge, knowing that these assets are stored on devices whose obsolescence is far more immediate than the shortest copyright term ever proposed.

Nevertheless, what Higgins seems to be implying is that a reduction in copyright, which would allow free copying and sharing of assets might protect a work like “The Crossing” because it would not have resided in only one place on the Web. He writes, “Just last month, flooding threatened a priceless collection of photos in the New York Times archive; had those images been digitized and widely copied, no single flood or fire would pose a risk.”

But even if widespread and random copying could be expected to preserve an older collection like these Times photos (and there are reasons why it would not), it is unclear what copyright amendment Higgins would propose at all with regard to a comparatively recent work like “The Crossing.”  How would simplifying what he calls “the arcane and byzantine rules created by 11 copyright term extensions in the years between 1962 and 1998” help address the fundamental reasons why a work distributed exclusively online in 2006 disappeared two years later?  Perhaps Higgins is proposing that the solution would be no copyright at all—in which case he should say so—but then this begs the question as to why there was ever a Rocky Mountain News to hire a Kevin Vaughn to create “The Crossing” in the first place.

Ultimately, Higgins’s post is consistent with a general bias that we have the technology to make the world’s works accessible and useful, and it is therefore antiquated to allow copyright to thwart this capability.  That may seem rational on the surface, but unless we want to boil that premise down to Let’s just allow Google to digitize and control it all, the conversation becomes far more complicated. At the very least, we need to consider that human capital required to make works accessible in a meaningful way, that the technical sustainability of digital assets themselves is uncertain, and that wired life has an effect on disposability, on general knowledge and awareness, and even on memory itself.  Meanwhile, it’s too easy to casually declare that stuff is disappearing all because of copyright without even examining what may or may not be disappearing at all.

On this matter, probably the most compelling citation made by Higgins in his post is a reference to research by Paul J. Heald into the apparent disappearance of American books from the mid-20th century.  But Heald’s conclusions deserve a thorough response as Part II of this essay.

Google et al Seek Ruling with Fair Use Axe to Grind

What do a bunch of puppies, a pretty woman, a dancing baby, Demi Moore, some Rastafarians, and 20 million books all have in common?  They all refer to prominent, copyright-related cases* from which a content creator could—if he has nothing better to do—learn something about fair use doctrine. But even if an independent artist were to study Rogers v Koons (1992) right through the most recent ruling by the 2nd Circuit Court of Appeals in Google v Authors Guild, I suggest that what he is most likely to discover is that fair use is a highly subjective component of U.S. copyright law.  In fact, the subjectivity is part of what makes the principle, and the cases in which it is argued, so interesting—at least to me.

As many readers know, fair use was codified into law in 1976. Functioning as a limitation to copyright, its initial intent was to allow the use of a protected work, regardless of the author’s permission, for the purpose of commenting in some manner on the work itself.  Although the doctrine has evolved to include uses that transform works for purposes other than commentary (e.g. Google Books), the underlying need for the fair use limitation was to maintain balance between free speech and copyright. If an author were able to enforce his copyright in order to stifle a use necessary to comment on his expression or that transforms his expression in some useful way, then free speech may be chilled or copyright may fail in its purpose to promote expression or progress. But drawing these contours is, of course, only possible on a case-by-case basis. When a defendant argues  fair use in a copyright infringement suit, a panel of judges will consider these four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole and relative to the purpose of the new work or use.
  4. The effect of the use upon the potential market for the value of the copyrighted work.

Even a casual glance at these criteria should tell independent creators what their attorneys would tell them, if they had attorneys—that there are no bright lines in fair use defenses.  Each case is distinct and highly susceptible to human interpretation. For example, I bet most laymen—me included—would have a tough time squaring the 1992 decision rejecting artist Jeff Koons’s fair use defense for his use of Art Rogers’s “Puppies” photograph with the 2013 decision affirming Richard Prince’s fair use defense for his use of Patrick Cariou’s Rastafarian photos. The reason I cite these two cases is that when considering the fourth factor in the latter, the panel determined that because Prince’s market is the fine art world and Cariou’s market is not, the potential market harm to the original photographs would be unlikely.  Aside from the fact that this contemporary ruling places judges in the undesirable role of cultural critics, the point I’m making is that the same distinction could have been made between Jeff Koons and Art Rogers, but it was not.

Forgive that detour, but I’m trying to underscore that, although there are some fairly simple circumstances in which a rights holder might make a reasonable assessment about a fair use of her work, case law demonstrates that there is nothing universally objective about the doctrine—perhaps especially when the use is artist to artist.  In fact, my colleague Terry Hart tells me that between 1978 and 2005, 33.8% of District Court fair use decisions were overturned on appeal. And there’s a reason why the landmark case involving 2 Live Crew’s parodic version of the song “Pretty Woman” went all the way to the Supreme Court:  because fair use is complicated.  So, the suggestion that a non-attorney, creator can be expected to make an “objective” assessment of a possible fair use defense prior to sending a DMCA notice to take down an otherwise infringing use of her work online is an exercise in metaphysics, if not outright sorcery.

My apologies at this point for the amount of amateur legal analysis in this piece—something I normally avoid—but there’s no other way to tell this story.

The reason I’m stressing the subjective nature of fair use is that this week an amicus brief was filed on behalf of Google, Twitter, WordPress, and Tumblr asking the Court of Appeals for the 9th Circuit to overturn—not its decision—but its rationale in the 2004 case Rossi v MPAA.  And it appears, based on the number of references to fair use in the brief, that they are seeking this revision because it might strengthen the Internet industry’s position regarding the ruling just last month in Lenz v UMG, a.k.a. the “Dancing Baby” case. (This involves the temporary takedown from YouTube of a home video depicting Ms. Lenz’s baby dancing to Prince’s “Let’s Go Crazy,” which occurred in 2007 and has been litigated by the EFF ever since.)

The recent Lenz ruling by this same court affirmed that a rights holder, prior to sending a DMCA takedown notice, must consider whether or not a use would be judged fair but that the consideration may be “subjective,” thereby rejecting the EFF’s argument in that case for an “objective” standard. So, it’s interesting that the Internet companies named in this brief are seeking a revision to the rationale in Rossi, in which the court also applied a “subjective” standard, but in a lawsuit that had nothing whatsoever to do with a fair use defense.  So, why seek the new ruling in Rossi instead of Lenz?  Because in a weird way, it might work.  But not necessarily.

In Rossi v MPAA, Michael Rossi claimed that the Motion Picture Association wrongfully used the DMCA to shut down his site internetmovies.com.  The takedown was issued because the site had advertised that full-length movies could be downloaded from the portal, though this turned out not to be true.  Rossi was lying to users (presumably in order to generate traffic), and the MPAA did not confirm whether or not his platform actually made movies available before they sent the takedown notice.  As a result, Rossi sued MPAA for a variety of injuries stemming from its alleged abuse of DMCA, but the court held that MPAA had acted in good faith in accordance with the DMCA and so rejected all of Rossi’s claims.

This new amicus brief filed on behalf of Google et al, states that the outcome of Rossi is correct but that the court should “take this opportunity to clarify the law and hold that that the good faith requirement in Section 512(c)(3)(A)(v) encompasses an objective standard with respect to whether use of a copyrighted work is ‘authorized by law.’” In theory, if these Internet companies can convince the court to affirm an “objective” standard in Rossi, the revision could perhaps be applied to the decision in Lenz and then more broadly assert that any rights holder must “objectively” consider fair use before issuing a takedown notice, or risk possible litigation for wrongful takedown.

But even if the court were to revise its ruling to affirm an “objective” standard in Rossi, any reasonable person should recognize that the additional burden on the MPAA in that case would be a consideration that is, in principle, objectively possible (i.e. they might have been able to confirm whether or not Rossi’s site was actually making movies available illegally).  But, in a given situation in which a rights holder contemplates issuing a takedown notice, there are almost no objective criteria (i.e. evidence) by which he can consider whether or not the recipient of the notice might present an effective fair use defense. (As addressed in this post about an artist friend of mine, fair use confuses people with the best intentions.)  The dynamic and interdependent nature of the four factors alone should demonstrate to any reasonable individual that fair use is a highly subjective, case-by-case doctrine.

More specifically, the “subjective” ruling in Lenz refers to the automated notice and takedown procedure, typically used by major rights holders like UMG, coupled with an algorithmic (i.e. imperfect) process to assess likely fair uses. The court held that this “subjective” automation meets the standard of a good faith effort, which seems only reasonable in light of the tens of millions of rightful DMCA takedown notices that are sent out by major rights holders every month. And that brings us to the heart of the matter …

Can we address takedown abuse without improperly burdening rights holders?

Ostensibly, the aim of this amicus brief is to address the problem of abusive takedown; and the authors state their broad concern about the “subjective” standard thus:

“… the more misinformed or unreasonable the copyright owner, the broader the immunity he would have from liability under Section 512(f). This reading of 512(f) would effectively encourage copyright owners to remain ignorant about the limitations on their exclusive rights under the Copyright Act, see 17 U.S.C. §§ 107–123, because the less they know, the more leeway they would have to send takedown notices.”

Perhaps there is some merit to this anxiety, but I am doubtful that the solution will be found in seeking the “objective” standard revision in Rossi. After all, the takedown of Ms. Lenz’s video did not occur due to ignorance of the law; the video was restored to YouTube according to DMCA procedures; and it was the EFF that decided to spend the last eight years suing UMG because the case appears to have provided a pathway to reshape the law behind the PR veil of “big mean corporate rights holder picking on an innocent baby.” As I’ve said in the past, there are better examples of DMCA takedown abuse, but not so many with headliner names like Prince.

No question that DMCA takedown abuse does happen, though it is dramatically outweighed by the number of legitimate takedown notices that are sent and resent in a nearly futile attempt to stop countless incidents of actual infringement. The amicus brief cites several exemplary takedown abuses—many of which would likely merit a fair use defense—issued by individuals or entities who either don’t understand copyright or who know exactly what they’re doing and are abusing copyright in an attempt to censor criticism or commentary. But these examples are not an indictment of the purpose of copyright; and rights holders with legitimate claims should not be made to bear the burden of mitigating abuse by a minority of bad actors—least of all with the purpose of making DMCA procedures easier or cheaper for OSPs. In fact, the weakness of the stated motivation for this amicus brief is written in the document itself and stated thus:

“Google receives hundreds of notices that suffer from similar defects, often repeatedly from the same vexatious submitters, and devotes substantial human and machine resources in an attempt to identify these abusive notices among the tens of millions of DMCA notices that Google processes each month”

Out of tens of millions of notices, Google identifies hundreds of potentially abusive ones from a consistent group of “vexatious submitters.”  Does that not sound on the face of it like an exception to a rule, one that begs for a targeted solution rather than a broad revision of legal standards that may place undue burden on many rights holders?  The Internet industry regularly criticizes proposals for remedies and legal frameworks for being “overly broad.” Yet, the pursuit of this revised standard, seems to be asking the court to use a sledgehammer to swat at flies.  Hundreds of abusive notices out of tens of millions is somewhere in the universe of .003%, and the Internet industry wants us to believe that this is the real problem with DMCA.

It seems to me that the public interest would be best served by Congressional revision of the DMCA in order to mitigate both takedown abuse and safe harbor abuse (though you may hear a collective gasp from Silicon Valley at the suggestion of the latter). In fact the amount of energy and resources the Internet industry has devoted to rewriting Lenz into a story of “abuse” is both revealing and appalling. After all, it is unreasonable to argue that a rights holding entity must be held to a stricter standard of consideration of the legality of a particular use while inadequacies in the antiquated safe harbor provisions necessitate the automated issuing of tens of millions of takedown notices per month.  In other words, if Google et al want rights holders to more carefully consider each infringement, then Google et al should be required to more aggressively reduce the volume of infringement on their platforms down to a manageable scale. Meanwhile, I believe neither the courts nor Congress should amend standards that can in any way increase the challenges already faced by individual and small-entity creators to enforce their copyrights in the digital marketplace. In fact, making that enforcement easier just might benefit everyone.

* In order as referenced: Rogers v Koons; Campbell v Acuff-Rose; Lenz v UMG; Leibovitz v Paramount Pictures; Prince v Cariou; Google v Authors Guild.