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.

Jonathan Band Flogs Fair Use

Recently, on the CCIA’s Project DISCO blog, Jonathan Band wrote a post that could make a person spit out the ol’ ball gag, if you know what I mean. He tells readers that the best-selling, S&M trilogy Fifty Shades of Grey, with film adaptation opening this weekend, exists thanks to the principle of fair use, a component of U.S. copyright law.  While one must submit to the truth that Fifty Shades’s started as a work of fan fiction, derived from the source material for Stephanie Meyers’s Twilight series, one must also bristle at the manner in which Band is trying to insert fair use where it doesn’t belong.  Specifically, there cannot be a question of a fair use if there is no use in the first place; and author E.L. James (Erika Mitchell) did not use any works protected under copyrights belonging to Stephanie Meyers. To the contrary, James specifically revised her original fanfic into what became Fifty Shades in order to avoid any content that might infringe, and this stands to reason because publishers aren’t that stupid.  So why is Jonathan Band fetishizing the principle of fair use here?  And is there a safety word one can utter that will get him to stop?

In fact, now that I’ve gone there, perhaps this is the central point of this rebuttal:  fair use is not a safety word. It is not a term one can just incant in order to stop all potential claims of copyright infringement.  Even a use that is allowed by a rights holder does not become “fair” by virtue of that permission.  Fair use doctrine is a very important, but very specific, aspect of copyright law, and it’s worth noting that the United States has the most liberal application of the principle among nations that maintain strong copyrights.

In simple examples, fair use wants to protect the right of one speaker who may use a work in order to criticize, comment upon, or parody that work.  These are not the only applications of fair use, and there are four criteria applied by judges when hearing a fair use claim as a defense against an infringement claim. But absent an actual dispute over infringement, fair use is often patently obvious or utterly irrelevant. And the case of Fifty Shades of Grey, the fact that there is no conflict between Meyers and James has nothing to do with the doctrine. These authors, and authors everywhere, professional or amateur, are free to remix the beauty and the beast theme to their hearts’ content. The elements which can be copyrighted in the individual expressions are easy enough to avoid plagiarizing, which is why James can begin with a derivative fanfic of Twilight and then revise to create an original work that does not infringe.

But fair use is just one concept that the dungeon masters of the tech industry like to dress up and parade around the blogosphere in order to seduce the public to believe that certain popular works only exist in spite of copyright. Interestingly, Band’s omission of the central fact that E.L. James did not use any protected works by Stephanie Meyers means that he isn’t actually writing a defense of fair use doctrine at all. Like so many blogs and articles of its kind, this seems to be another attempt to broaden one of copyright’s exceptions into some all-purpose answer to all manner of uses where the doctrine may not apply. This can be effective based on the safe assumption that most of us are not attorneys and don’t really know how the law functions.  Hence, as a PR move, Band’s editorial aligns with the tech industry’s interest in selling the idea that all fanfic should ultimately be defined as fair use so that the activity can more easily be monetized without permission of any original authors.

To be clear, this reply to Band’s assertion about fair use is in no way an indictment of fan fiction itself. Many authors welcome the trend and even personally curate sites hosting fan fiction.  It can be a great way to interact with avid readers and fans, particularly of popular series that contain many characters and complex plots and subplots.  But fanfic enthusiasts should not be enslaved to the tech industry’s interests.  Fanfic can and does coexist with copyright law without rewriting the meaning of core doctrine.

There are plenty of great examples of fair use doctrine available, and readers should be at least a bit skeptical when the tech industry picks a particularly weak example like this one to highlight. But I get it. This story wears stiletto heels, has a whip in one hand, and a multimillion-dollar franchise in the other. It’s flashy and alluring.  But editorials like Band’s continue to overuse this false role play in which creativity is blindfolded, bound, and gagged by copyrights.  Quite the contrary.  In fact, copyright is a bit like S&M in this one regard:  if the person being “used” doesn’t grant permission and can’t set limits, it’s called aggravated rape.

ADDENDUM:  I cannot say that I am surprised Twitter lit up a bit because some readers were offended by this final paragraph in which I appear literally to be comparing copyright infringement to rape.  I would never belittle a violent and disturbing crime by equating it with a non-violent one, and I hope readers understand that the S&M theme of this story is what sparked this reference to permission.  I will add that, throughout literature, movies, TV, and journalism, authors have used the word rape metaphorically, including some months ago when Madonna actually said that piracy of her works was “like being raped.” I didn’t even agree with that simile as I thought it was making too direct a comparison.  Take that all for what it’s worth.

Advertisers Announce Effort to Keep Ads Off Illicit Sites

A longstanding challenge with regard to websites that profit from pirated media, counterfeit products, and/or malware is the frequent placement of major brand advertising on the pages of those sites.  Musician David Lowery’s activist website The Trichordist has published lists of major advertisers whose banner ads have appeared on various pirate sites, seeking to hold advertisers accountable for supporting exploitation of musical artists. This kind of activism has drawn both public and industry attention to the problem. In its most basic form, the principle is that Legit Entity A should not benefit from a site that derives its traffic by exploiting Legit Entity B. That probably sounds reasonable to most people, including most advertisers themselves, but what to do about it is another matter — until now.

This morning, the advertising industry announced a new, voluntary initiative that helps advertisers better understand the nature of sites on which their ads may be placed.  The initiative produced by the Trustworthy Accountability Group (TAG)  is called the Brand Integrity Program Against Piracy and it was developed in collaboration with the three major advertising associations — the Association of National Advertisers, the American Association of Advertising Agencies, and the Interactive Advertising Bureau.

For context, it is generally true that advertisers do not want their ads placed on sites dedicated to illegal or harmful trade. Companies spend billions of dollars and thousands of hours developing, cultivating, and managing their brands; and even as brands evolve and experiment to keep up with a changing consumer market, very few brand managers will actively choose to be associated with a site engaged in illegal or exploitative commerce.  Chrysler and Target really don’t want their ads next to an ad for a questionable “dating service” or a link to a media player that will probably load spyware onto your computer.  But unlike other media, ad buying on the Internet is not all directly placed by the advertiser.  When you see an ad on a major site, it was selected and specifically paid for, like when Nissan buys a week of placement all over CNN.com.  But other ads scattered around the Web are what are called “remnants,” and these are placed somewhat blindly through low-cost, generic buys with various ad services.  It’s a bit confusing, but the blind aspect of these media buys has been one reason the advertising community has responded to the content industry that they only unintentionally advertise on sites hosting infringing content. In fact, the aforementioned Target makes a good example.  As Target now offers a movie streaming service, it would stand to reason that the company does not purposely choose to advertise on a site dedicated to movie piracy.

The whole problem won’t be solved with a single program, but thanks to demand by advertisers themselves, TAG today announced a new technology solution that enables advertisers to view site analysis based on assessed risk to their brands.  From the press release issued by TAG:

“Under the program, TAG will work with a small number of independent third-party validators, including Ernst & Young and Stroz Friedberg, to certify advertising technology companies as Digital Advertising Assurance Providers (DAAPs). To be validated as a DAAP, companies must show they can provide other advertising companies with tools to limit their exposure to undesirable websites or other properties by effectively meeting one or more criteria.”

The initiative is designed to identify what TAG calls Ad Risk Entities (AREs), meaning sites that have a high probability of facilitating illegal activity, including dissemination of unauthorized intellectual property.  Through voluntary application of these tools by the advertising industry, the expectation is that online providers who want to maintain relationships with quality advertisers will make the effort to become Digital Advertising Assurance Providers (DAAPs).  A validated DAAP would have to take steps–or show that it already takes steps–to mitigate advertiser exposure to risk according to five criteria designed to provide safeguards and assurances that their brands are not inadvertently supporting illicit activity.  These criteria include identifying properties disseminating infringing material, enabling advertisers to restrict ad placements, preventing fraudulent transactions, providing tools to monitor ad placements, and eliminating payments to undesirable entities.  It is the first initiative of its kind in which the advertisers who support most websites seek to collaborate with providers to keep legitimate trade from supporting black-market trade.

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Not only is this effort a step forward in terms of putting advertisers in control of their placements, providing them better stewardship of their brands; but it also demands greater accountability of advertisers by rights holders and other victims of exploitative sites.  In short, the “I didn’t know” defense weakens considerably with the deployment of these new tools, and since this effort comes from the advertising community, it’s fair to assume they’re generally not looking to hide behind that excuse. Still, the initiative only works if enough parties participate, so we can certainly expect The Trichordist and similar watchdogs to continue to look out for major brand advertising on infringing sites. But on the whole, I expect advertisers do hope to shun these associations because their ad value is being effectively hijacked by these types of sites.  There’s a reason most torrent and cyberlocker sites are so often supported by very sleazy ads:  because it’s a very sleazy business.

More © critics who don’t get the creative process.

It often seems as though each time an artist, let alone a legend, pays homage to the past, some pundit with an axe to grind on copyright seizes the moment to declare the contemporary law restrictive to creative development.  Variations on the theme of “artists could never do that today” have been trotted out in essays, some thoughtful, others not so much.  In this latter category, Ed Krayewski, writing for reason.com, picked up a few themes from Bob Dylan’s 20-minute Grammy Award acceptance speech when he was named Person of the Year by the Recording Academy’s philanthropic program MusicCares.

Dylan pays homage to his well-known roots in folk music and offers tribute to artists who performed his work in the early days. Dylan says, “I also have to mention some of the early artists who recorded my songs very, very early, without having to be asked.”  Krayewski offers this quote referring to Peter, Paul, & Mary as evidence that having other artists play a songwriter’s music has value, as though this some sort of revelation.  Not only does this come under the professional column labeled “No Shit,” but Dylan isn’t even saying what Krayewski seems to think he’s saying.  “Early artists…recorded….without having to be asked” means Dylan didn’t ask them to play his songs, but he was delighted they did.  And nothing in copyright law today prevents this from happening artist-to-artist in the same nascent environment Dylan is describing about his early career and that of Peter, Paul and Mary. In fact, once a song is published, the songwriter cannot prevent a cover from being recorded, even if he wants to, as long as the performing artist pays a fee.  But this licensing process hardly “locks up cultural heritage,” as IT policy consultant Steve Worona tweeted and was quoted in the article by Krayewski.

Dylan has spoken and written so much about his process, his inspirations and derivations, that his words have frequently been served up as proof that copyright kills creativity.  The problem is the argument is so often based on an assumption that the exception proves the rule.  For instance, there is this quote pulled by Krayewski from Dylan’s speech:

I learned lyrics and how to write them from listening to folk songs. And I played them, and I met other people that played them back when nobody was doing it. Sang nothing but these folk songs, and they gave me the code for everything that’s fair game, that everything belongs to everyone.

Ah, ha!  There we have it!  Proof from the master’s mouth himself that work is derivative and, therefore, we can conclude that copyright stands in the way of the creative process!  Except, no.  Again, for an author of, well,…anything this quote also kinda sits in the “No shit” column.  Woody Guthrie or Pete Seeger might say essentially the same thing; certainly they’ve said similar things, but can you tell these artists apart?  Can you tell the differences among Dylan and Guthrie and Seeger and Guthrie the Younger?  In those differences is the work that becomes copyrightable, yet none stifles one another or anyone who has come since to break out of those famous shadows.  Krayewski suggests Dylan’s generation is more litigious than its predecessors, which implies that the present generation of musicians has been left gnawing on musical table scraps because all the damn boomers locked away the prime cuts under copyright.  How then, did that generation produce so much music without spending their lives in court? And where the hell did some wonderfully innovative works I just heard by The Punch Brothers come from?  For that matter, where did all of Dylan’s post 1976 works come from (except the Christmas album), if the “copyright environment” is so toxic? Because there are infinite variations, and artists know this.

The only thing that’s really changed about the copyright environment is that there are tech-industry interests aligned against it.  As such, perhaps the supposedly free-market libertarians at reason.com should look at the economic pressures on contemporary artists as a threat to culture rather than copyrights.  But most especially, they should stop presuming to know anything about the creative process and the ways in which artists draw from one another and still manage to create their own works.  There’s a reason the ability to do this is called a gift.  It’s special, it’s rare, and not everybody gets it.