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.

Who was Miss Margaret Lee?

In honor of International Women’s Day, let’s give a tip of the hat to author Margaret Lee, whoever she was. According to Frank Leslie’s Popular Monthly, Volume 49, November 1899 – April 1900, Miss Margaret Lee of Brooklyn, NY was the “author of sixteen published books, mostly novels.” Her obituary in the Brooklyn Daily Eagle, December 26, 1914, adds a bit more. It describes her as “the authoress of more than seventy books of contemporary fiction and many pamphlets on controversial interests issued through the magazines and daily press….” The obit mentions neither spouse nor children.

If anyone out there is a Margaret Lee scholar, please share in the comments. But the reason I mention her today is that it was Miss Lee who wrote the Authors’ Petition of 1899 asking Congress to abolish the then 42-year term of copyright protection in favor of a “perpetual copyright.” The petition was signed by “an overwhelming majority of the leading authors, editors and journalists of the United States,” according to the Monthly. And among the signatories was Susan B. Anthony, which is not to be underestimated, in my view, because literary property, as well as literary expression itself, was and remains essential to the cause of women’s rights.

Although copyright critics may be quick to note that a “perpetual copyright” would be an unconstitutional violation of the “for limited times” clause and/or call me a maximalist for celebrating the petition here, it is not entirely clear that Miss Lee and the signatories literally meant “for the rest of all time,” either. I say this because the petition notes how many nations, including several far less productive than the U.S., had already adopted life-of-the-author-plus regimes for copyright protection. Most importantly, Miss Lee articulates core principles of justice on which authorial rights are founded and in honor of the day, I present her petition in its entirety.

AUTHORS’ PETITION (1899)

To the Congress of the United States this petition is submitted:

We, the undersigned authors, editors, journalists, etc., do hereby call your attention to the limitations of copyright now legally existing and ask that they be abolished. We demand perpetual copyright. We believe that property in brain work is as real as property in stocks, bonds and real estate. We claim that mental labor is as honest and as individual as manual industry, or any business activity. 

We know that the profession of authorship requires years of study and preparation. Under the present system an author loses all right in his book when it has been published forty-two years.

Suppose a writer has a book published when he is twenty years old. If he reaches the age of sixty-two he has no further claim on it. It may be a popular work, it may be selling by thousands of copies, but the author may be in need of money for his daily bread. Authorship, like other professions, tells [sic] on the worker. There comes to him a time when he should be able to reap the full harvest of his early labors. He should have he royalty on every book that he has written during his life and be able to will his right in his work to his heirs.

When a law permits injustice the period for its repeal has arrived. To-day in the United States there are many writers whose early works are scattered broadcast by publishers who, as a mere business matter, bring out the popular books that were copyrighted before 1857. The law gives them the right to reprint such volumes ; the authors have no redress.

Perpetual copyright is the natural due of all authors. In Queen Anne’s reign, when laws regarding the limiting of copyright were first enforced, the price of books was very high. Our government copied the English legislation on the question. In 1831 the present system became law.

Sixty-eight years have passed. The masses can buy books.

This is an era of progress, and the truth is that instead of being in the lead the United States is behind the age in her method of dealing with authors. Here are some facts: In Russia, copyright exists during an author’s life, twenty-five years after his death, and ten years in addition if an edition of his works is published within five years of his end of the term. In Spain, author’s life and fifty years thereafter. In Germany, for author’s life and thirty years thereafter. In France, author’s life and fifty years thereafter. Austria, Sardinia, Tuscany and the Papal States, author’s life and thirty years thereafter. Holland and Belgium, author’s life and twenty years thereafter.

We demand that the United States shall at once take the foremost position and make copyright perpetual. We ask that the law may take immediate effect, in the cause of justice, and apply to all copyrights given during the year 1858 and since that date. The reason of the law is the life of the law ; the reason for the putting of any restriction on the life of copyright having disappeared, the limitation should cease, and the right of the author in his works should be perpetual.

The United States finally adopted a life-of-the-author-plus-50-years term of protection with passage of the 1976 Copyright Act. That was two years after women were allowed to get their own credit cards and four years before the U.S. established this week as National Women’s History Week. Make of these contemporary events what you will, but to borrow from Miss Lee, it really can take the U.S. a long damn time before law no longer “permits injustice.”  So, thanks to those who insist upon reform.

Piracy on Legal Platforms is Still Killing Creative Careers

Once again, the question arises whether there is any hope of addressing mass online copyright infringement on otherwise legal platforms?  It’s an exhausting problem, more than two decades old, and it isn’t getting better. A recent article by Annie Levin for Observer describes a new campaign by Music Workers Alliance (MWA), in which she sums up the heart of the problem thus:

Because of sites like YouTube, where all music can be accessed for free, streaming services like Spotify can get away with paying musicians a starvation average wage of $0.0038 per stream. A musician must have their song streamed almost half a million times a month to make minimum wage. Far from making a profit, musicians often end up in debt after making an album.   

As the article describes, MWA is focused on lobbying for changes to Section 512 of the DMCA, which shields online platforms from liability for copyright infringement committed by their users. But with regard to major platforms like YouTube, Meta’s properties, and Twitter, it is hard to wonder if we are not past the point of seeking meaningful amendment of the DMCA to better support smaller creators. As noted in my recent post during Fair Use Week, there is significant evidence suggesting that the major platforms are not in compliance with DMCA §512 anyway.

If that is the case, what can legislative reform accomplish? §512 is a voluntary provision under which compliance provides a “safe harbor” liability shield against litigation. In order to prove non-compliance, some entity would have to sue, for instance, YouTube, and spend the next decade or more in a fight with Google’s tobacco-industry scale legal counsel. And ain’t nobody got the resources for that. Thus, if the actual litigation shield today is that YouTube et al are simply too big to sue, then §512 is little more than enforcement theater, and amending it could be little more than legislative theater—at least as a means to address chronic infringement on the biggest platforms.

Then There’s the Standard Technical Measures Debate

On a related topic, the U.S. Copyright Office, in late December, sought public comments regarding the agency’s future consultation for the development of more robust Standard Technical Measures (STM) to identify and mitigate infringing uses of works on legal platforms. Under DMCA §512(i), Congress intended that OSPs and copyright owners would collaborate to develop STM, and at the time the DMCA was written, it was the OSPs who promoted the efficacy of STM as a basis for establishing the “safe harbor” provisions in the first place. But as all creators are painfully aware, in the 24 years since the law was passed, collaboration to achieve the Standard in STM has never happened.

Instead, a hodgepodge of technical measures are used, several of these developed by the OSPs themselves to address infringement only insofar as it serves the platform’s interests. For instance, as the members of MWA are well aware, YouTube’s ContentID system is provided to major labels and sound recordings made by megastars but is not available to many thousands of other owners of music rights—even works produced by fairly well-known composers and songwriters. As the STM comments submitted to the USCO by Copyright Alliance state:

… these technologies are usually not voluntarily made available to all types of copyright owners and OSPs have refused to come to the table with other stakeholders to have them formally adopted as widely recognized standards under section 512(i). This has led to a lack of uniformity among and access to existing technical measures that makes it difficult for those copyright owners who do not have access to combat infringement. On the other hand, OSPs prefer the status quo because it allows them to avoid adopting and implementing standard technologies.

Copyright owners would like to see the Copyright Office play a more integrated, regulatory role to achieve standardization of technical measures to better protect the works of a much broader spectrum of copyright owners. Meanwhile, the Electronic Frontier Foundation and similar organizations cite flaws in existing technical measures as a basis to argue against any expansion of these technologies. “Despite years of financial and technical investment, filtering technologies continue to do a poor job of sorting legal expression from infringement,” state the comments submitted by EFF to the Copyright Office. More specifically, the comments state the following:

The core problem is this:  distinguishing lawful from unlawful uses often requires context. For example, the “amount and substantiality” factor in fair use analysis depends on the purpose of the use. So while the use may be a few seconds, as for some kind of music criticism, it can also be the whole piece, such as in a music parody. Humans can flag these differences, automated systems cannot.

There is a measure of truth in this refrain, which is played every time the topic of STM is on the table. But its relevance should be considered in terms of evidence rather than theoretical debates. At internet scale, with infringements occurring in the tens of millions every month, and Big Tech still saying, “We can’t police it all,” I think the fair question asks why creators like those in MWA should continue to bear the cost of allowing the perfect to be the enemy of the good?

If the argument is that the good (i.e. better STM) can never be achieved, then the EFF and their fellowship should be required to cite more than anecdotal evidence of potentially harmful error. Because after twenty years, the system in place has a 100% failure rate for many stakeholders on the enforcement side of the copyright equation. That we should continue to allow smaller creators to watch their careers dissolve simply because STM will produce some error is an immoral argument for the status quo. And when that argument is paired with the fact that the major OSPs are now barely incentivized by the DMCA liability shield, the resulting “wage theft” described in Levin’s article is downright criminal.

Decision in Unicolors v. H&M an Important Win for Creators

Justice Breyer, in the waning days of his tenure, wrote an opinion last week that will be of significant help to copyright owners. Historically a critic of copyright, it was Breyer who wrote the convoluted majority opinion in Google v. Oracle, which elided a core copyrightability question presented (the protection of APIs) by shoehorning the question into the second prong of a fair use analysis. But in Unicolors v. H&M, Breyer wrote the 6-3 opinion upholding a basic principle of justice and common sense—namely, that innocent, administrative mistakes should not void the ability to enforce one’s copyright rights.

For background, designer Unicolors sued retailer H&M for infringement of several of its protected textile designs. Unicolors prevailed in district court, but the Ninth Circuit Court of Appeals reversed, siding with H&M’s argument that Unicolors’s copyright registration was invalid because it contained inaccurate information—specifically a mix of “published” and “unpublished” works as a group of “unpublished” works.

Under §411 of the copyright law, an applicant who knowingly provides inaccurate information on an application may risk having that registration invalidated in the course of a lawsuit. But the statute also contains a safe harbor, expressing Congress’s understanding that non-expert applicants would make innocent errors and should not have their registrations invalidated as a result. To complicate matters, the Ninth Circuit “determined that it did not matter whether Unicolors was aware that it had failed to satisfy the single unit publication requirement, because the safe harbor excuses only good-faith mistakes of fact, not law,” states the SCOTUS opinion.

The reasons the Ninth Circuit’s finding was vexing is twofold. First, the meaning of “published” under the copyright law remains one of the more confusing definitions for many attorneys, let alone laymen authors of works. Second, even if the layman applicant is confident he understands the definition of “published,” is a statement about the publication status one of fact or law, as a layman would understand it? And all this for a purely administrative function at the Copyright Office. Fortunately, the SCOTUS opinion last week held that “411(b) does not distinguish between a mistake of law and a mistake of fact; lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under §411(b)(1)(A)’s safe harbor.”

As stated at oral arguments by counsel for Unicolors, it was unreasonable to allege that the company had “knowingly” provided inaccurate information to the Copyright Office just to save $65 for an additional registration fee. But for the independent creator, like the photographer who makes an average $30,000/year for her photo work, those fees add up, and the ability to register a group of images on a single application makes a difference. And this same class of creators is even more likely than a big business to commit errors of law or fact. Consequently, the SCOTUS ruling in Unicolors provides significant relief to the same creators who are already at a disadvantage when enforcing their copyright rights.

One could delve a little deeper into this opinion (and the dissent) to unpack the distinctions among “actual knowledge,” “constructive knowledge,” and “intent to defraud,” but that’s an unnecessary slog. More importantly, these nuanced terms of art among legal professionals, in this case, amount to variations on the common understanding of lie versus mistake for us mortals. And the very mortal author, artist, or creator seeking to protect her work is lucky just to understand the basics of registration with the U.S. Copyright Office. (Is a play a “literary work” or a “work of the performing arts” and is it “published” if it has been performed on stage?). So, yes, the most liberal interpretation of the statutory safe harbor in the registration process is the only one which achieves both reason and justice.