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.

Digital Rights Activists & the TPP

Photo by Wahoo istockphoto.com
Photo by Wahoo
istockphoto.com

If the TPP is secret, how accurate are its biggest critics?

I can’t claim expertise (or even substantial knowledge) on the subject of international trade, but can you?  When was the last time, you followed a trade negotiation like a sports fan?  Yeah, me either.  But consistent with our conspiracy-rich times fostered by overvalue of context-free leaks and well-funded fear mongering, various organizations are keeping up the controversy over ongoing negations in the multinational Trans Pacific Partnership agreement.  The first thing self-proclaimed digital rights advocates will tell you is that the TPP negotiations are entirely secret, and then they’ll proceed to tell you what’s wrong with many of the proposals being made by the USTR.  If you’re paying attention, that’s a contradiction right there, but for sure, they want you to know it’s secret, and that the officials doing the negotiation aren’t even elected!

Trade negotiations have always been conducted in some measure of secrecy, and the negotiators have always been comprised of appointed officials by the executive branch, which is empowered to enter into treaties that congress must then ratify.  Thus, if a treaty is really predicated on an agenda that our representatives will never support, it’s not going to pass; and the USTR would wasting months if it is truly skulking around in the shadows.  To hammer out a trade deal among several nations and do so as an ongoing public referendum would be chaos — yes, even with Facebook and Twitter to keep us all up to date.  Assuming enough of us even had time to pay attention to that much information, whatever proposal pissed some of us off at any given moment would as likely be obsolete by the time we voiced our outrage as any other outcome.  Nothing would get done.  So, while one cannot deny that we the public are somewhat in the dark with regard to the TPP negotiations, I remain leery of many of the more breathless proclamations being made about the deal, especially the worries over copyrights coming from vested interests in the Internet industry.

A new post by Tyler Snell, written for Latin American digital rights bulletin Digitalrightslac.net, leads off with this gotcha headline:  What do free trade agreements have to do with your ability to listen to music online?  A lot more than you think…

One might expect Snell to fulfill the promise of this headline with at least one exemplary line drawn between what he believes to be afoot with the trade negotiations and our ability to listen to music online.  Of course, he doesn’t because he technically can’t because, as he and other digital rights critics keep saying, “It’s secret!”  In fact, Snell states in his article,  “Everything we know about the agenda of the TPP negotiations comes from a 2011 Wikileaks exposure of the proposed Intellectual Property chapter and later documents from the November 2013 Salt Lake negotiations.”  That’s probably true, although neither leak reveals anything particularly egregious with regard to copyright, and both leaks were obsolete at the time of their exposure.  At the time of the first leak, I took Assange to task for his hyperbole about the contents of the documents.  It’s my own bias, but if Assange felt the need to tell people things like the following, then he’s probably exaggerating the value of his leak:   “If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs.”

So, no, Snell does not say how a ratified TPP might affect our ability to listen to music online, but he follows the playbook thus far used to imply that Hollywood alone has both an ear and a mouth in these super-secret dealings.  He cites a post by Mike Masnick at Techdirt decrying the injustice that the MPAA gets text documents of the negotiations while members of congress do not!  What Snell and Masnick left out of that story is that industry advisors can gain access to information from the USTR but face criminal penalties if they share that information with their own organizations.  Additionally, do we honestly believe the USTR is just blowing off Google & Friends or other stakeholders while giving exclusive access to the Motion Picture Association?  Why would they?

Also in an effort to push buttons in lieu of substance, these articles consistently allude to issues pertaining to pharmaceuticals and other medical needs being thwarted by the TPP, and yet, it is invariably the copyright fears that get all the attention.  Demonstrate that a trade deal will deny a kid in Kenya some medicine, and I’m all ears; but for some reason, these medical concerns are relegated to dependent clauses and parenthetical statements used to dress up the most dire predictions about the deprivations we’re sure to endure thanks to the copyright proposals in the deal.  I am far from qualified to comment on what qualms Doctors Without Borders may have with these negotiations, but I have to shake my head at some of the language used to describe the supposed dark ages that might ensue if copyright protections akin to the ones we have in the US are adopted by its trade partners.

And that brings us to a letter the Electronic Frontier Foundation is circulating on the subject of proposed copyright term extensions associated with the TPP.  As I’ve stated in the past, I don’t personally claim to know where copyright terms ought to be, but I have yet to hear any criticisms of the current terms that make much sense to me, and that don’t ultimately benefit Internet companies by allowing free exploitation of works.  Terms vary around the world, and the EFF feels that society will “suffer” if global partners in the TPP establish the current U.S. term of Life of the Author + 70 years.  In fact, the letter states, “There cannot be any serious question about the fact that the copyright term results in a net welfare loss to society, and effectively amounts to a transfer of wealth to a small number of multinational copyright-holding companies.”

No question at all?  If nothing else, I should think the fact that the U.S. remains the largest producer of new, marketable works in the world ought to raise some question, but that’s just me looking at the world. It is also galling that this presumptive white-hat organization continues to promote the fallacy that all copyrights are held by giant corporations despite the fact that most copyrights are owned by independent organizations and individual creators. Still, the EFF offers its rebuttals to three of the leading arguments often made for extending terms in this agreement.

That Authors Life Expectancy is Higher

“We fully support artists receiving just rewards for their creative output.  However because “life” is the starting point, copyright already extends beyond the lifetime of any author, and providing for his or her descendants is not a legitimate goal of copyright law.”

For one thing, it’s merely an opinion about copyright law that it should not benefit the author’s descendants, and it’s not even an opinion the EFF can claim is widely held by the general public.  In fact, terms have consistently been predicated on the idea of benefiting the author plus two generations of heirs; they’re not just random durations.  More importantly, though, statements like this are cynically focused on resentment over money (which is kinda gross considering the EFF’s oligarchic funding sources) and entirely leaves out the various ways in which stewardship over copyrights yields a wide range of benefits, some of which have nothing to do with revenue to the author’s heirs.  I recently met with a friend who runs the Jerome Robbins Foundation and learned that nearly seventy percent of the proceeds from licensing Robbins’s most popular works goes to funding many other  theatrical organizations around the country.  That’s how Robbins set up his trust to function, and it’s just one example for which I cannot imagine the social benefit of those terms ever running out.

So, I think it’s pretty hard to say whether or not TPP partner Singapore, for instance, might not reap long-term benefits from stronger copyright protections akin to the U.S. model.  Certainly, in my talk with local musician Kevin Lester, I got the distinct impression that he and his fellow Singaporean artists dearly hope to see a mature industry grow out of what is now a local scene.  And that brings us to the next topic…

That Weak Copyright Laws Deter Investors

“There is not a single published study that shows a significant positive relationship between copyright law and foreign direct investment, in any country.”

That statement might be true, but the absence of a published study is not evidence that investors are eager to enter markets with weak copyright protections.  To the contrary, there is plenty of anecdotal evidence suggesting that investors absolutely weigh barriers like piracy and weak copyright enforcement with regard to foreign market investment in media production or distribution.  Nevertheless, the EFF paragraph at this point rather abruptly segues from the subject of investment to a complaint that works under long copyright terms often become unavailable, concluding with this head-scratcher:  “Conversely, creative works are often only rescued from oblivion after entering the public domain.”  What this really says is “Our Googlers want to digitize everything ever made, and the sooner they can do that, the better.”  Otherwise, it’s an odd statement.  A work entering the public domain simply means its copyright has expired, but if the work has also at some point entered oblivion, that term expiration doesn’t necessarily bring it back to life.  I recognize that there is a value in having certain databases maintain libraries of arcane works that might otherwise disappear, but these are case-by-case endeavors that have little to do with international trade and global investments.  I’d say this is particularly true for countries that have yet to produce enough creative works to worry about them wandering off into oblivion.

That Copyright Terms Should be Harmonized Among Partners

The EFF argues that extending terms among trade partners in order to harmonize the law across borders is a “sham” since domestic copyright laws are so complex that harmonization cannot be achieved anyway.  They even share a graphic to show how complex copyright law can be.

Perhaps this is true, but you know what’s even more complex?  Free speech.  The EFF and just about every other digital rights organization behaves as though copyrights and wrongful takedowns are the primary threat to free expression thriving around the world, and I have to wonder whose crack pipe over there is the hottest.  There are parts of the world where speaking freely gets a speaker beheaded or stoned to death or brutally raped or all of the above.  That’s complexity in the matter of free expression, and I’m grateful every day to live in a country where free speech is foremost among all civil rights.  But even TPP negotiating partner Brunei is governed in part by Sharia Law, so I really don’t think it’s going to be copyright terms, plus or minus 20 years, that will predict the fate of free expression in that country.

Yes, there are cases in which DMCA takedowns and other abuses of copyrights have been used to infringe free speech, but these incidences are not the norm and are relatively tame in contrast to the hyperbole employed by these organizations who would have you think Prince is on the verge of curb-stomping an innocent grandmother.  And of course all the mistaken and malicious copyright abuses combined are dwarfed by the billions of copyright infringements that occur monthly, which not only harm the individual creators of those works but can poison the atmosphere in a fundamentally beneficial business sector for which international trade ought to thrive.  We’re talking about trade in the fun stuff here; but on a more substantive level, I am not alone in believing that legally and financially empowered authors can be agents of political and social change.  That’s why many of us who believe in strong copyright protections see the law as an engine of free speech rather than a barrier to it.

Naturally, I cannot claim to defend the entirety of the TPP or even every aspect of the copyright proposals, since I don’t know what they are.  Don’t forget, it’s secret!  I would only suggest that people encountering the more frightening articles look through some of the dust being kicked up over a lot of of speculation and misinformation, and then to consider in whose interest it’s being kicked.

Photographer Learns the “Value” of Exposure

We all know the cliche, right?  Free distribution made possible by Internet technology gives the artist exposure that will lead to otherwise hidden rewards; and so restricting use through ownership is anathema to the opportunity provided by social media.  Bullshit.  A friend just shared what may be the perfect real-life anecdote that gives lie to the culture of permissionlessness.  Photographer Rachel Scroggins tells a story on her blog that so clearly demonstrates what happens in a society in which the creator of a work can disappear amid the frenzy of sharing.

In September of 2013, Scroggins explains that she took a photo of supermodel Karlie Kloss in the act of taking a selfie with her smart phone.  Scroggins showed the photo to Kloss, who proceeded to share the image on Instagam without permission or a photo credit.  I’m sure Kloss was not being deliberately unkind but was merely acting like a typical citizen in a time when the very idea of permission or credit has been culturally bred out of everyone’s consciousness.  This degradation in the social contract is commonplace, but examples like this one don’t come along too often.  Because when a supermodel shares a photo, it has a tendency to go kinda viral.

As Scroggins watched her unattributed image rack up about fourteen thousand views, she could only imagine the potential good it might have done her had Kloss simply understood how essential that credit is.  Karlie Kloss did eventually apologize, but the image subsequently began to appear uncredited on numerous mainstream fashion websites all over the world.  Thus, Scroggins proceeded to spend time and energy in that new, thankless and unpaid second job of the digital-age artist — chasing down infringers of her works.  In some cases, she received apologies and compensation from the publications; but in many cases, she’s received little more than brush-offs and some reluctant acquiensce to her takedown requests.  And she’s still chasing the photo around the web, “All because, as she says, “Karlie Kloss used my photograph and neglected to credit me properly.”

So, on behalf of all the artists like Rachel Scroggins, spending countless hours pursuing thousands or millions of casual, unattributed and permissionless uses through cyberspace, I have to say to y’all who claim the “exposure” is worth abdicating copyright, that you are so completely full of shit.  Because while you — and I’m looking at you Mike Masnick — extoll the virtues of free, mass distribution for artists and creators, you simultaneously pimp out messages into the heads of beautiful users everywhere that the individual who made that work they’re “sharing” simply doesn’t exist anymore.  Pity the same phenomenon has yet to fully manifest among those of you promoting lame ideas about copyright.

Music Creators Seek Reform of Consent Decree

In his recent testimony before congress, songwriter and president of ASCAP Paul Williams remarked that it was astonishing to realize that he and fellow witness, songwriter Rosanne Cash, were subject to more government regulation than the multi-billion-dollar corporations whose interests were represented in the same hearing.  What Williams was referring to with that remark is the fact that licensing fees for certain public performances of works by composers and songwriters are still predicated on a WWII-era consent decree between ASCAP and the DOJ.  This decree granted a federal judge (aka the “rate court”) the sole right to set rates for these public performances, but for a market that looks nothing like the one we have today.

It is thanks to these outdated licensing terms that we continue to hear from various music composers and writers that, for instance, millions of plays of their songs on a streaming service like Spotify is worth less than a couple-hundred bucks.   And as the songwriters and composers presently lobby for change, we’ll surely be hearing plenty of hew and cry from Pandora, Spotify, and Google.  After all, when these tech companies evangelize new models, innovation, and disruption, they only really mean it if it’s good for their bottom line; so if a half-century-old law or system allows them to exploit someone else’s work in order to add a few million to their own coffers, then “old models” sound just fine. They won’t come out and say “leave the old system in place;” that would be too regressive-sounding and too bluntly honest.  Instead, they’ll try to scare consumers in one way or another that their streaming services will cease to operate or have to adopt new pay models or charge more for access, and so on; but the reality is that while these services dangle cheap and free in front of consumers in the short term, failure to reform the present system may result in higher prices, disenfranchised licensees, and/or decreased diversity in production over the long term.  Meanwhile, there’s no question songwriters and composers are getting pretty well hosed, shackled to an obsolete model from which they can neither effectively opt out nor negotiate within as free agents in a normal supply/demand market.

This matters now because streaming is how consumers want to listen to music, and why wouldn’t we?  If I’m in the mood to listen to a song I haven’t downloaded, I launch Spotify just like anyone else. Who wouldn’t want such on-demand convenience?  And for free?  But our convenience is presently subsidized by the dramatic underpayment of songwriters and composers who are increasingly dependent on revenue from this new way we want to listen to music. At the same time, these creators of the music we love are the folks without any other source of revenue.  They don’t tour, and they don’t sell merchandise.  Elton John is a big damn star and a knight and all that, but I don’t think anyone ever bought a Bernie Taupin tee shirt, if you know what I mean.

Music licensing can be confusing.  There are multiple ways to use music and different rights associated with each use as well as multiple stakeholders with any given track.  Readers will thank me for not attempting to wade too deeply into all the variables; I’d probably get some of it wrong, and it’s not exactly spellbinding.  Suffice to say that the rights associated with the consent decree and its reform are public performance rights covering uses like radio broadcasting, music streaming, live performance by musical artists, and uses in venues like bars, restaurants, and theaters.  Licenses for these types of use are granted automatically upon request, and they are generally bulk licenses covering tens of thousands of songs for a single, annual fee paid to a performing rights organization, commonly called a PRO.

ASCAP was the first PRO (founded in 1914) and is the largest of these organizations, followed by BMI, but in the present landscape, other PROs have emerged that are not subject to the consent decree.  Still, a PRO the size of ASCAP enables hundreds of billions of typical public performances for users through a collective licensing and fee structure that compensates the organization’s membership of composers, songwriters, and publishers.  For instance, the coffee house where I’m writing at the moment has a sign on the door with the logos of the three leading PROs because this place hosts open-mic nights and other live performances, and it has music playing continuously during normal hours.  A little venue like this pays a relatively low licensing fee that provides blanket coverage for this type of public performance, allowing any local musician to come in and play any cover she wants for whatever size crowd will fit in here.  In a similar way, if I wanted to use music incidentally on this blog site, I could get a license with the three major PROs for a few hundred bucks a year and have the use of just about every song in existence.

Without reform of the consent decree, the PROs could see the resignation of major publishers from membership, effectively abandoning collective licensing.  This would mean individual negotiations between publishers and new media services, which would almost certainly increase costs that would be passed on to consumers one way or another and would also create unnecessary burdens for traditional licensees like my local coffee house.  It is not hard to imagine a future in which the full adoption of music streaming wipes out a whole class of professional music creators. After all, nobody can argue that a sustainable market can be built on a model in which “success” in the primary market buys a half-order of groceries once in a while.  And regardless of what the Pandoras etc. may say in defense of the current system, there is simply no way they can promise that a world without professional songwriters and composers will not be a world devoid of the kind of music we’ve been lucky to enjoy so far.

Adding insult to injury, many start-up Internet companies offering music streams as the foundation of their business model are employing stall tactics to avoid paying any licensing fees at all.  The Silicon Valley culture has a long tradition of steal now, apologize and pay something later, and the PROs are seeing this first-hand with various web businesses.  Once the request for a license is made, it has to be granted; but then the PRO requests information about the applicant’s use, audience, etc. in order to set a fee.  ASCAP and the others are seeing a trend in which these companies stall on providing information and, therefore, stall on paying any fees while freely using all the music they want in order to grow their business.  (Man, I’d like to see somebody try that with construction and the cement supply company.  Just once.)  The recourse available to the PRO in this case is federal court, which is costly and time consuming.

Presently, the songwriters, composers, and publishers are proposing certain reforms to congress that release them from this outdated consent decree and enable them to negotiate (still through the PRO) more flexibly in response to current market realities.  For instance, ASCAP proposes shifting cases from the purview of the federal rate court to a more expedited process of private arbitration; and it calls for voluntary rather than compulsory licenses in order to create bundles of works, allowing the PRO to license music more complexly than the all-or-nothing model that exists now.   With these types of reforms, the PROs feel they can negotiate sustainable fees for songwriters and composers while keeping intact the collective licensing paradigm that keeps public performance licensing easy and affordable for tens of millions of users.