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.

On Copyright, the EFF Will Say Anything to Scare You

Are you gifted in the art of bullshit, but the popular conspiracy theories just aren’t for you? Do you enjoy riling people up about threats that are demonstrably false, but you just can’t get comfortable with QAnon or election deniers? Well, maybe you should consider an exciting career with the Electronic Frontier Foundation writing about copyright law. It seems they’re always looking for eager young folks with good writing skills and no scruples. For instance, you can learn how to write blog posts like Stop the Copyright Creep, posted this week by Katherine Trendacosta, and which begins as follows:

In 2020, two copyright-related proposals became law despite the uproar against them. The first was the unconstitutional CASE Act. The second was a felony streaming proposal that had never been seen or debated in public. In fact, its inclusion was in the news before its text was ever made public. The only way to find it was when the 6,000-page year-end omnibus was published. We want to make sure that doesn’t happen again.

Here’s how that opening paragraph would read if it stated the facts and concluded with a more honest declaration of EFF’s position:

In 2020, two copyright–related proposals bills became law. despite the uproar against them. The first was the unconstitutional CASE Act. The second was a the Protect Lawful Streaming Act (PLSA). felony streaming proposal that had never been seen or debated in public. In fact, its inclusion was in the news before its text was ever made public. The only way to find it was when the 6,000-page year-end omnibus was published. We want to make sure copyright enforcement does not happen anymore. that doesn’t happen again.

That the CASE Act is unconstitutional is a highly speculative opinion which the EFF is free to argue in court one day, and it probably will. That there was much “uproar” against these bills outside the tiny community of anti-copyright wonks is hyperbole (In 2020? Really?). The implication that the felony streaming bill was quietly snuck into law behind closed doors is just a lie. And, of course, the hyperventilating tone meant to scare readers is standard EFF style, which often makes the organization indistinguishable from any other conspiracy-monger.

The reason I let that statement stand about news being ahead of the text of the felony streaming bill is because it might be half true. The text of the Protecting Lawful Streaming Act (PLSA) was introduced on December 10, 2020, so it definitely appeared late in the session—but not because its provisions came out of the blue, were secretive, or were written without debate. On the contrary, one reason the bill was introduced so late is that various stakeholders were still debating the language into December. And if the EFF did not directly engage at the time, there is no way it was unaware of these negotiations because the issue itself was hardly new.

For more than a decade before introduction of the PLSA, various parties had been addressing the fact that large-scale piracy remained a misdemeanor under the statute rather than a felony as long as the pirate enterprise streamed material rather than made it available for download. Here’s Senator Klobuchar referring to the issue in 2011 by way of analogy during a hearing about cyber security:

I have been working in the area of some of the streaming issues to try to come up with a way with a number of the other Senators to acknowledge that if someone is standing on a street corner and sells DVDs that are over $2,500 that we already know is a felony, and right now if you do it, if you have a business and you are illegally selling anything—movies, books, music—and you do it maybe $1 million and you are profiting—you have to profit from it under our bill—it is still a misdemeanor. And so we are trying to fix that without, you know, hurting anyone’s rights or teenagers that are simply trying to share some information

Or you can link to just one House IP Subcommittee hearing in which felony streaming was being discussed in 2014. “We should consider today whether there is a need to clarify that felony infringement includes infringement by streaming,” stated Chairman Coble. Or you can review a summary of the legislative history at Copyright Alliance. Or, oddly enough, my satirical post A Guide to Critiquing Copyright in the Digital Age was a response in 2015 to an article published in The Hill complaining about the idea of felony infringement by means of streaming.

The desire to close what many copyright owners, the DOJ, IPEC, the FTC, et al. considered a legal loophole had been present in both official and unofficial records for quite some time before introduction of the “secret” bill in 2020. And unless you’re planning to engage in mass piracy by building an illegal streaming platform, you probably have little reason to know what PLSA is or why it exists.

The implication by EFF that PLSA or CASE or the other copyright provisions mentioned in the blog are somehow a threat to free speech is as unfounded as the allegation that these proposals were ever clandestine. Yet, Trendacosta writes, “Because so many copyright-related bills involve proposals that would harm lawful free expression, they are not the kind of controversy-free proposals that belong in such legislation.” Here, she means that PLSA and CASE should never have been attached to a must-pass omnibus spending bill at the end of the year.

Notably, copyright proponents who worked on the legislation were not exactly thrilled with the rider outcome either; but you know why it happened that way, especially with the CASE Act? Because Senator Wyden, had a solitary hold on that bill, and in the roughly nineteen months between introduction of CASE and December 2020, he neither engaged in good-faith negotiation nor publicly articulated a realistic objection to its provisions. In fact, after telling Oregon constituents in December 2019 that he saw a path to compromise, he then asked for several poisoned pill amendments, and failing that, simply ghosted with his hold intact.

So, if we’re going to talk about shenanigans on the Hill and things that should never happen, I’m of the opinion that one senator should not be allowed to single-handedly kill bi-partisan supported legislation without very clearly and very publicly articulating his passionate and well-reasoned opposition. And I believe Senator Wyden agrees because he co-sponsored legislation in 2011 based on this same general principle.

Meanwhile, aside from the fact that copyright’s alleged conflict with speech is a construct of anti-copyright ideologues—one that finds little purchase in history or law—I would love to know what EFF imagines could be more “controversy-free” than copyright legislation? It happens to be one of the very few subjects where we see Democrats and Republicans collaborating and voting in large bi-partisan numbers.

That is not only significant in the current climate, but I am told by at least one colleague who has worked on the Hill in less turbulent times that nothing controversial survives the frenzied process of attaching riders to must-pass legislation. “The leaders of both parties from both Houses have to agree, as well as the chair and ranking members of both the House and Senate Appropriations Committees,” he says. So, that seems like a resounding override of Senator Wyden’s hold and a confirmation that the hold was the only reason the copyright bills were passed in this manner.

What I think EFF really means to say is that because they fervently believe that copyright enforcement is always a threat to speech, they don’t like it when nobody on the Hill agrees with that premise. And these days, it is just so damn easy to allege that when Congress or a court or an investigative journalist or a federal agency doesn’t agree with your trumped-up narrative (it writes itself), then some dark arts must clearly be at work. So, if you’re into sowing conspiracies but can’t go full InfoWars, writing about copyright for the EFF just might be your next career move. Good luck!

Photo by: mrwed54

Parody on Trial: The Onion Submits Amicus Brief in Novak v. Parma

On October 3, the satirical news organization The Onion filed a delightfully irreverent amicus brief with the U.S. Supreme Court in support of the petitioner seeking cert in Novak v. City of Parma, Ohio, et al. Even if you have no interest in the case, the brief is a good time—a deftly written panegyric to the art and relevance of parody that interweaves actual parody with supported legal arguments. Under its Argument I – Parody Functions by Tricking People into Thinking it is Real, the section begins …

Tu stultus es. You are dumb. These three Latin words have been The Onion’s motto and guiding light since it was founded in 1988 as America’s Finest News Source, leading its writers toward the paper’s singular purpose of pointing out that its readers are deeply gullible people.

In the next paragraph, The Onion states that the first reason its motto is central to the brief is that it knows the “federal judiciary is staffed entirely by total Latin dorks.” So, it’s like that. Enjoy!

But the issues raised in this case are more complicated than The Onion’s colorful defense of parody and satire—if not with respect to plaintiff Novak’s conduct itself, then with regard to broader questions, both social and legal, on the subjects of humor and gullible people.

Background: Novak Mocks the Parma Police Department on Facebook

In March of 2016, Anthony Novak created a bogus Facebook page designed to resemble (though not precisely match) the page for the City of Parma Police Department. He then published a handful of outlandish posts that any reasonable person should recognize as satire. For instance, one post announced a “Pedophile reform event” with “puzzles and quizzes” stating that upon successful completion of the day’s activities, participants would be removed from the sex offenders list.

The police department naturally received a few phone calls from Parma citizens, and after officers investigated, Novak was arrested, tried, and ultimately acquitted on charges that he had violated an Ohio state law prohibiting the use of a computer to “interrupt” or “disrupt” police operations. According to the petition for cert at the Supreme Court, the fake Facebook page was online for twelve hours and a total of six posts were published.

After Novak’s acquittal on the criminal charges, he filed a civil suit against the arresting officers, the department, and the city, alleging that the investigation and arrest had been retaliatory in nature and violations of his First and Fourth Amendment rights on the basis that the enforcement actions stemmed solely from his protected right to mock public officials. A district court held, and the Sixth Circuit Court of Appeals affirmed, that Novak’s complaints failed to meet the standards to show the officers’ intent to cause harm and that, within the four corners of the law, the officers did not abrogate their qualified immunity from suit. In its conclusion, however, the appellate court stated …

But granting the officers qualified immunity does not mean their actions were justified or should be condoned. Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.

Indeed. Even if Novak caused some limited “disruption” to the department (e.g., fielding calls from complaining or confused citizens), it should have been obvious that the content of the Facebook page was intended as satire rather than intended to “interrupt” police operations in the spirit of the broadly written state law. That all the fuss was over six posts online for twelve hours is an even stronger indictment against the officials’ decisions leading to prosecution, which justifies a fair assumption that arrest was both retaliatory and unconstitutional. The questions Novak presents to the Court are as follows:

  1. Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected.
  2. Whether the Court should reconsider the doctrine of qualified immunity.

The Sixth Circuit reasonably, if reluctantly, found that Novak did not prove that the officers investigated him solely on the basis of his protected speech. Instead, it held that the officers presented sufficient (if thin) probable cause to indicate that he had violated the state “disruption” law, and two magistrate judges granted warrants, and a DA independently proceeded with an indictment. So, SCOTUS may not agree that Novak’s case is ripe for the qualified immunity and speech questions presented. On the other hand, the petition describes a relevant circuit split thus:

The Sixth, Eighth, and Eleventh Circuits grant officials qualified immunity for First Amendment violations disguised as searches and seizures justified by probable cause under broadly written laws. In those circuits, censorship-by-arrest prevails. Three other circuits prioritize speech over immunity. The Fifth, Ninth, and Tenth Circuits look beyond pretext and deny qualified immunity to officials who should have known that their actions violated the First Amendment.

While we wait to see whether the Court will agree to hear this case, the serious intent behind The Onion’s hilarious brief raises some complicated questions if we look beyond Novak’s short career as a parodist in this instance.

Reasonable People

The Onion makes the broad argument that “reasonable people” do not need warning labels to identify parody—that indeed parody depends on impersonating the serious or the real. “Parodists intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it—and by doing so demonstrate the target’s illogic or absurdity,” the brief states. It would, therefore, be anathema for persons in power, like police, to require some kind of notice in order to distinguish protected parody from illegal impersonation—let alone impersonation with intent to cause harm.

The Onion is, of course, right about parody as an expressive form, but the question of impersonation has become complicated in an era when mass media tools are available to anyone—to say nothing of what it currently means to be a “reasonable reader” of mass media. The Sixth Circuit, for instance, affirms that impersonating police is not protected speech “for good reason” and further notes by example the “mayhem that a scam IRS or State Department website could cause.”

In a different but related context, it would be a travesty if Alex Jones could successfully argue that InfoWars is all “opinion and hyperbole”[1] and that he is, therefore, immunized against recourse for the wanton harm he and his fans have caused the victims of the Sandy Hook murders. Not all potentially criminal speech can be made lawful by arguing some variation of the “just kidding” defense; and in the digital age, a “prankster” does not need a plurality of idiots to do a great deal of damage.

So, although I agree with The Onion that most people probably know parody when they see it, we must acknowledge that unreasonable readers abound and are living a post-parody existence that is barely literate. Content that might be assumed parody in another era turns out to be prophesy to many contemporary Americans. How is Alex Jones anything other than a joke? Ditto Pizzagate, QAnon, Mike (the pillow guy) Lindell, Steve Bannon, Marjorie Greene, the stolen election narrative, FOX News, Donald Trump, or the sincere and persistent belief that children are being harvested by Hollywood stars to make adrenochrome?

So, it is not easy to fully endorse The Onion’s premise that people have a solid grasp of the ridiculous, or that the ridiculous is easily discernable from the truth these days. Novak’s phony Facebook page, though minor and fleeting, reminds us how muddy the distinction is between lampoon and headline news. A “Pedophile reform event” may be obviously sardonic to most readers, but in a world where real people would force a child rape victim to remain pregnant, there is arguably nothing so wild the parodist can invent that does not require confirmation against fact.

So, although the officials involved in Novak’s case did not exercise common sense (as the Sixth Circuit states), the lines separating parody of public figures, outlandish lies about public figures, and the actual conduct of public figures are exhaustingly blurry—especially when the tools to spoof the real thing are available to anyone with a computer and a motive to cause mischief. Near the conclusion of The Onion’s brief, it states:

… grafting onto the reasonable-reader test a requirement that parodists explicitly disclaim their own pretense to reality is a disservice to the American public. It assumes that ordinary readers are less sophisticated and more humorless than they actually are.

It would indeed be folly to require the parodist to “disclaim his own pretense,” but it is not quite true that we can rely solely on our sophistication and sense of humor. When a friend on social media shares a real story about something balls-out crazy, don’t they often label it, “Not from The Onion.”? In fact, The Onion’s generic status in this regard partly betrays its argument about disclaimers because its brand is a flag telling readers that parody and satire are present.

It is hardly original to say that we are awash in so much conspiracy theory and crime against reason that it is often hard to imagine how the writers at The Onion hope to compete. The day Kellyanne Conway said the words “alternative facts” with a straight face on national television, many of us expected satirists everywhere to throw their pens, if not themselves, out the window. And that story was a mere party trick compared to the astonishing self-parodying events that have transpired since. So, with a deep bow to the craftsmanship in The Onion’s amicus brief, I think it is fair to say that even reasonable, comedy-literate people can be forgiven these days for wanting some assurance that what they are reading is indeed a joke.

[1] I chose these words because one of FOX News’s defense in its litigation with Dominion is that the lies it reported about corrupted voting machines are “hyperbole and opinion.”

AWF v. Goldsmith: The Need for a Workable Standard of “Transformativeness”

The Supreme Court on October 12th heard oral arguments in Andy Warhol Foundation (AWF) v. Lynn Goldsmith, and presumably every copyright nerd (pro and con) was listening. In general, I would describe the Court as consistent—all justices focused on the narrow question presented with very little discussion outside those lines. The question, which badly needs an answer, is this:  What is “transformativeness” under factor one if the fair use test?

Petitioner AWF’s argument is that a use of a protected work to create a follow-on work that contains “new meaning or message” is sufficient to find that not only does factor one tilt toward fair use but that “new meaning and message” should be determinative of outcome in any fair use consideration The fact that AWF narrowly asks the Court to consider this one question—and insists that the art world depends on their standard—demonstrates how much weight factor one has accumulated in the years since the decision in Campbell (1992).

Whether the Court opines more expansively on fair use, I think it is safe to say that it will decide whether factor one requires a more rigorous standard—namely whether a follow-on work must contain at least a modicum of comment on the work being used.  While we wait, the copyright skeptics and critics—many who have filed briefs in this case—will say that the fair use doctrine itself, and even the speech right, are in peril unless the Court sides with the Warhol Foundation. But this is simply untrue.

AWF’s very broad interpretation of the first factor analysis is certainly what many copyright critics would like to see, but they are asking the Supreme Court to maintain confusion on the question presented—to give a nod of approval to an application of fair use circumscribed by little more than the imagination of the copier and their lawyers. But if the Court rejects this expansive view—if it clarifies the sprawling confusion as to what “transformative” means—fair use as an affirmative defense will remain a vibrant and appropriately balanced aspect of U.S. copyright law.

Comment is at the Core of Fair Use

As argued in the past, it is no coincidence that the preamble of the statute (Section 107) cites exemplary purposes for fair use that imply the presence of some discussion about the work being used. While understood not to be an exhaustive list, “criticism, comment, news reporting, teaching, scholarship, [and] research” are named because the fair use doctrine evolved as judge-made law weighing cases entailing these types of uses. And because “purpose” is not defined beyond that illustrative list in the preamble, it is reasonable to hold that factor one of the four-factor test, which identifies the “purpose” of the use at issue in the very next sentence of the statute, should not become unmoored from the spirit of that preamble. 

Campbell does not stray from this principle. Some may disagree that parody exists in the follow-on work (2 Live Crew’s “Pretty Woman”), but as long as parody was the basis for the finding, the “comment on” requirement was met—albeit in context to a troublesome term of art called “transformativeness.” Since the popularization of that term in Judge Leval’s paper in 1990, courts and defendants have articulated factor one rationales so broad as to be undefinable. And AWF’s “new meaning and message” standard is precisely that—undefinable as a legal standard.

What is Meaning and Message?

In fact, a precedent case in the same lower court (the Second Circuit) illustrates some of the difficulties with the AWF arguments in this case. In Cariou v. Prince, follow-on artist, Richard Prince, rejected any notion of a “meaning” or “message” in the works he made using photographer Patrick Cariou’s images. What does a court do with AWF’s theory when the defendant himself will not define “meaning and message”? There, the Second Circuit held that some “new expression” was sufficient to find that factor one favored fair use—that comment on the original work is not required.

But tellingly, it was the Second Circuit’s own factor one language in the Cariou decision which provided the district court with a rationale for finding “transformativeness” in the Warhol screens, and which the Second Circuit then reversed stating:

“…the district court appears to have read Cariou as having announced such a rule…that any secondary work is necessarily transformative as a matter of law ‘[i]f looking at the works side-by-side, the secondary work has a different character, a new expression…”

Many legal practitioners have commented on the serpentine reasoning applied by the circuit court in order to square the Warhol and Cariou decisions—and all because “transformativeness” has become a doctrine without clear meaning.

Considering that a defendant artist might present any form of “message”—from baroque to minimalist to Richard Prince’s silence—and that it would be famously unwise for courts to apply a legal standard that turns on the judge or jury’s opinion of artistic merit, the Court should decline to engage in these semantic entanglements.  What is definable and identifiable is whether any comment on the original is present in the new work.  This would provide the factor one analysis with an articulated legal standard that judges and juries are able to apply in a principled way.

Necessity Implies Commentary

Several justices at oral arguments focused on the subject of “necessity,” asking whether it was essential that Warhol use Goldsmith’s photograph to make the “Prince Series” silkscreens. The rational answer to this question in this case is No. It was not necessary, in a legal sense, that Warhol use that particular photograph. Aside from the fact that a middleman (Vanity Fair) obtained the photograph from Goldsmith and provided it to Warhol, even if that were not the case, the necessity question is predicated on the commentary requirement.

Absent commentary on the work used, any alleged “need” for that exact work may be technical or functional but is not defensible as a matter of fair use. For instance, Goldsmith’s photo may be conducive to Warhol’s method because it’s a headshot in front of a plain background, but this kind of “need,” which facilitates the user’s process, is not a proper consideration for courts weighing fair use. Likewise, Richard Prince’s almost haphazard cut-outs of Cariou’s photos for some of his works are more suggestive of “opportunity” than “need,” and my guess is Richard Prince would confirm this assumption.

This view of necessity should focus attention on the question as to whether the expression in the original work has in some way been transformed through commentary upon that expression. By contrast, under AWF’s theory, nearly all uses of, for instance, underlying musical compositions would be fair uses merely by adding new lyrics to famous melodies. This is anathema to fair use doctrine in general and in conflict with Campbell in particular.

AWF’s Theory Did Not Exist in Warhol’s Time

Perhaps it is worth contemplating the legal landscape when Andy Warhol made the “Prince Series.” It was 1981, and most of Warhol’s career was behind him. The current Copyright Act—the first to codify fair use—had only been in effect for about three years, and the seminal application of Judge Leval’s “transformativeness” doctrine was still more than a decade in the future. It is understood that Warhol both appropriated and licensed photographs for his iconic works, though I doubt anyone could prove that he actively contemplated fair use—let alone considered the doctrine  as it has been applied or argued since Campbell.

At present, expansive applications of “transformativeness” have resulted in holdings that treat factor one as the dispositive consideration. Several empirical studies find that a defendant who wins on the “transformative” question is almost certain to prevail on the fair use defense overall,[1] and even where factor one is reasonably the most compelling, this only emphasizes the need for clarification as to the meaning of “transformativeness.”

Far too many decisions, especially in district courts, have placed fair use in direct conflict with the derivative works right, which is little surprise when the word “transformed” appears in Section 101 defining “derivative works.” Further, district courts (e.g., Brammer v. Violent Hues) have applied untenable interpretations of “transformative” in conflict with the most fundamental licensing models under the reproduction right, possibly resulting in needless time and expense on appeals for both parties.

Rather than holding that some evidence of “new expression” almost always carries the day, the other three fair use factors should be given proper consideration by mitigating the apparently mesmerizing effect of “transformativeness.” AWF and its amici’s assumption that its test would create more certainty in the art world is a plea for the status quo in which courts will continue to misapply factor one because “meaning and message” are often undefinable to the point of capriciousness. By rejecting AWF’s over-broad standard, the Court can clarify the vagueness which, since Campbell, has caused unnecessary confusion for rightsholders, users of works, and the courts.

[1] For instance, “Is Transformative Use Eating the World?” – Asay, Clark D. et al.  https://lira.bc.edu/work/ns/5f6a0b59-6497-4457-a063-153dae3cee94