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.

AAP Sues Maryland over eBook Licensing Law

“Remarkably, the Maryland Act subjects publishers to civil and criminal liability for attempting to exercise their exclusive rights in the very manner envisioned by the federal statute.” – Complaint in AAP v. Attorney General of the State of Maryland.

It is inherent to the exclusive rights of the Copyright Act that authors may decide the manner in which their works are made available. When, where, and at what price to release a novel, a motion picture, a record album, etc. to the public is implicitly the sole right of the copyright owner, and the case law is replete with affirmations of this principle. The Constitution empowers Congress to secure the rights vested in authors, and as of the Copyright Act of 1976, federal copyright law preempted common law copyrights to bring the U.S, under a uniform code in the interest of justice and administrative sanity.

Yet, at the urging of a handful of library associations, the State of Maryland was the first of several states to enact a law, which amounts to a state compulsory license on eBooks. Rhode Island and Massachusetts have similar bills in the works, and New York’s eBook library licensing bill only awaits the governor’s signature.

On December 9, the Association of American Publishers (AAP) filed suit against the Attorney General of the State of Maryland, seeking to bar enforcement of the Maryland Act, which would take effect on January 1. The lawsuit was inevitable. The Maryland Act is unconstitutional as a matter of law; it does not address a real problem as a matter of policy; and it is downright insidious as a tactical move in a broader strategy to weaken copyright law for all creators of works.

The mechanisms in the Maryland Act, which implicate exclusive copyright rights, include the requirements to:  1) make all eBooks available to libraries in the state simultaneously with making them available to the state’s consumer market; 2) allow state libraries to obtain unlimited eBook licenses; and 3) make eBook licenses available on “reasonable terms.”

The availability mandate reveals that these bills are predicates to more than eBooks because, for instance, libraries also lend motion pictures, whose producers often depend on windowing releases as part of their market strategy. The unlimited license provision elides the fact that a single eBook library license may serve dozens or hundreds of readers in contrast to a consumer’s purchase of a single eBook. And that omission conspires with the uncertainty that “reasonable terms” is undefined in the Maryland Act, which means the state would be setting terms, and therefore, supports the conclusion that this law amounts to a compulsory license.

The Maryland Act is Unconstitutional

Setting aside all other matters, I predicted in my last post on this topic that any federal court will likely hold that these bills are unconstitutional on the basis that the Copyright Act preempted the panoply of state copyright laws that existed prior to the 1976 Act. Jonathan Band, who lobbies for both the American Library Association (ALA) and the Computer and Communications Industry Association (CCIA), alleges that preemption does not exist here, saying that the Maryland Act only “regulates licensing terms” (akin to contracts), which is outside the scope of the exclusive rights secured by the federal copyright law. This is verbal legerdemain.

If a state enforces a law, under pain of civil and criminal penalty, dictating the terms by which a copyright owner may exercise his rights, then under the walks-like-a-duck doctrine, that is what we call a state imposed compulsory license. And because it is the sole purview of Congress to codify compulsory licenses in the federal copyright law, preemption clearly applies. Congress has never codified a compulsory license for literary works, and we should also note that the compulsory license for musical works is a relic of a bygone era doing considerable harm to songwriters in the digital market.

The eBook Bills Do Not Remedy a Problem

There is a reason why the library associations who have lobbied for these state bills, speak in generalities and platitudes like “being shut out of the marketplace of ideas.” Because they do not present real data to support a claim that these state bills serve an unmet need among the library-going public. Most of the publishers (certainly most of the majors represented by AAP), already release new titles to libraries concurrently with releases to the buying public. So, that’s not really a complaint.

If the libraries allege that eBook license fees are onerous, they should be required to support that claim with numbers while acknowledging that eBook lending is distinctive from eBook selling, and then demonstrate how their constituents are underserved as a result of current licensing models. As mentioned in other posts, the libraries may not want to go there because their own lending data do not reveal a public clamoring for works of history and literature which they otherwise cannot access. So, it’s easy for the library groups to lodge general complaints and plead for overreaching laws while the publishers’ more difficult task may entail making decisions about format, timing, or pricing to give a specific title its best shot in the market.

Further, as the AAP complaint states, “The Maryland Act is not a reasoned response to any broad concerns in the digital market. To the contrary, it appears that the state law is motivated by discontent with a single technology company that has at times refused to distribute to libraries the ebooks and audiobooks that it publishes. The Maryland Act’s legislative history and public statements by state legislators and public officials reveal some very specific concerns about this company, Amazon, which is not an AAP member.” [emphasis added]

Amazon behaving badly and making a mess for everyone else? Hardly a stretch, right? That company has exerted so much predatory influence across so many markets, including publishing, that it deserves its own antitrust division at the DOJ. But if the AAP complaint is based on an accurate read of the legislative background, it sounds like the parties lobbying for these bills and gaining the sympathies of legislators maybe using the word publisher, when what they really mean is Amazon. But, of course, we must remember that these state bills have very little to do with access to eBooks.

Weakening Copyright Law is the Goal

These eBook bills are not about addressing a narrowly defined problem faced by libraries. Libraries enjoy many carve-outs in the copyright law, and if they have sufficient evidence to argue for a new and specific exception vis-à-vis eBooks, then directly lobbying Congress for such a provision would be more honest and more efficient. But the agenda driving these bills is anything but narrow. Aside from the implications for other categories of works (like motion pictures mentioned above), the various interests backing the eBook library bills knew they would be litigated, and they probably know that they will probably lose.

We see this tactic employed in other areas of public policy all the time. When openly lobbying for legislative change in Congress may be untenable, one group or another devotes its resources to passing state laws, which are certain to be challenged in court, where even losing can be useful. Either some judge in the process writes a compelling dissent, or merely racking up a scorecard of court losses can become a foundation for appealing to Congress to amend federal law. The strategy itself is not inherently sinister. It depends on one’s view of the end justifying the means.

Here, the end is to chip away at copyright rights with the same strategy employed by those who seek to limit other constitutional rights until, for instance, the exclusive rights in copyright law are little more than a bundle of compulsory licenses for all categories of works. And as Chris Castle describes in his post on this topic, who ultimately benefits the most from such a regime? Google and Friends. And the irony there, as I have also discussed before, is that the library associations are woefully shortsighted. Amend the copyright law as they seem to envision, and a host of commercial tech ventures will not just devour the economic value of authorship but will also set fire to libraries without lighting a match.

Photo by: nito

To Support Diversity, Independent Creators Should Not Give Up on Copyright

On Monday, the U.S. Chamber of Commerce’s Global Innovation and Policy Center (GPIC), in collaboration with Copyright Alliance, hosted a panel and roundtable discussion entitled A Conversation on Diversity and Inclusion in Copyright. The main topics discussed were the importance of fostering diversity among creators and creative works as well as a desire to see more diversity among the attorneys and other professionals specializing in copyright law and policy. In addition to the two panel discussions on those themes, video statements were submitted by creators working in music, film, and visual arts, and each described copyright protection as essential to their creative careers. (See participants list below.)

During the roundtable segment, I asked what might be improved about the copyright system to better support diversity in creative production. Rachel Kim of Copyright Alliance and Karyn A. Temple, former acting Register of Copyrights, now General Counsel at MPA, noted the goal to make registration easier at the Copyright Office because, of course, registration is necessary to fully enforce copyrights for U.S. authors. Temple added that the copyright small claims board, which will begin operating in the Spring of 2022, should help make copyright enforcement more accessible to a greater number of independent creators.

There is no question that, in addition to institutional changes within media companies or law firms etc., one of the best ways to foster diversity in creative careers is to inspire independent authors to participate in the copyright system in the first place. Because unfortunately, most do not.

A core principle of copyright law is that it is fundamentally egalitarian—a bundle of rights vested in any individual, from anywhere, who creates works of expression and makes those works available to the public. But the practical barriers to enforcing those rights, especially in contrast to the ease of infringement in the digital age, has been catalytic in discouraging entrepreneurial creators to the point of perhaps believing the narrative that “copyright is exclusively for big corporations.”

That theme, amplified by vocal copyright critics over the last twenty or so years, has played a role in discouraging the individual author about the value of his own rights. The message that the internet “bypasses the gatekeepers,” was, in addition to being overstated, implicitly coextensive to the assertion that the individual’s copyrights are meaningless in contrast to “new” modes of reaching audiences and generating revenue. That internet platforms enable marginalized voices, including artists, to be heard is absolutely true, but the idea that this social benefit demands the price of abandoning one’s copyrights was, and is, untenable.

Nevertheless, the digital native whose development as creator happened to coincide with the “copyright wars” beginning in the 1990s, often has conflicting views about her own rights, which have been described by various critics as greedy, rent-seeking, obsolete, anti-speech, a barrier to her fans, etc. Thus, in addition to the systemic hurdles in copyright law for indie creators, there exist internal obstacles for some, who have been made to feel uncomfortable about asserting their legal rights. Add the dimension of race and a history of exploitative IP grabs to the mix, and the belief that copyright is solely for the already privileged may be an even greater impediment for the author who happens to be a person of color. Consequently, demoralization of the people who should be advocating for their copyright rights produces an ideological vacuum, which the anti-copyright crowd has filled with its own agenda.

Perhaps because I could read the names or see the faces of everyone participating in the roundtable via Zoom, it occurred to me that although the moderators and guests are correct that all corners of the copyright world have work to do when it comes to diversity and inclusion, the anti-copyright segment strikes me as remarkably homogenous in this regard. And, of course, when we turn to the principal beneficiaries of the anti-copyright agenda (i.e. Silicon Valley), the white-male curve bends almost ninety degrees vertical.

It is common enough to observe that most, if not all, anti-copyright ideas are hatched in the comfortable aeries of academia, where the authors of many unfounded theories neither experience, nor even understand, the challenges faced by most creative professionals. So, whether it is fair to describe the class of copyright antagonists as too White, it is certainly fair to call it a pastime of privilege to invent and promote policies that, in one way or another, would divest the author of some amount of agency in her copyrights.

So, to answer my own question, if I could choose one goal for the moment, it would be to convince as many independent creators as possible that their copyrights are not worthless, even if advocacy of those rights may be entangled with myriad conflicting views. Yes, there are practical obstacles to meaningful enforcement, some of which may only be addressable by legislation; but even that will be more likely attainable if the millions of entrepreneurial creators in the country refuse to abdicate their rights in a war of attrition. Because giving up is what the anti-copyright interests are counting on copyright owners to do, and that is certainly no way to support diversity and inclusion in creative works.

Photo by: Igor2006

A Conversation on Diversity and Inclusion in Copyright

Welcome & Program Overview

Rick Wade, Senior VP, Strategic Alliances & Outreach, U.S. Chamber of Commerce

Terrica Carrington, VP, Legal Policy & Copyright Counsel, Copyright Alliance

Keynote Address

Representative Sharice Davids (D-KS)

Creator Video Appearance

Ebonie Smith, Music Producer, Audio Engineer at Atlantic Records; and Steering Committee Member of the Recording Academy’s Producers and Engineers Wing

Panel: Copyright Empowering Underrepresented Creators

  • Grace Wu, Executive VP, Entertainment Casting, NBCUniversal 
  • Moderated by: Rachel Kim, Copyright Counsel, Copyright Alliance

Creator Video Appearance

Yanique DaCosta, Graphic Designer and Fine Art Painter

Creator Video Appearance

Valerie Red-Horse Mohl, CEO/Founder of Red-Horse Native Productions

Panel: Careers in Copyright Empowering Underrepresented Communities  

Creator Video Appearance

Patrick “Guitar Boy” Hayes

Roundtable Discussion

Facilitated by Latricia Boone, VP, Equality of Opportunity Initiative, U.S. Chamber of Commerce

Closing Remarks

Mei-lan Stark, Executive VP & Chief Counsel, Intellectual Property, NBCUniversal

Let’s Stop “Fixing Copyright” for the Sake of our Digital Future

As 2021 winds down, and this blog approaches the mid-point of its tenth year, I ask the following question: Can certain folks stop trying to “fix copyright” in deference to the digital age now that the internet experiment has failed?

For over twenty years, the principal argument underlying the “copyright is broken” narrative has been that the legal framework limits the democratizing power of digital technology to improve the world through unfettered access to everything. That premise was always flawed, but it seems especially absurd today, against the backdrop of evidence that the worst consequences of the digital revolution thus far are attributable to blind faith in that utopian ideal. We can see clearly now that there is no “home of Mind,” as Barlow predicted. There is no global public square where a more enlightened civility transcends the anachronistic laws of “weary nations” through the power of information and an ethics requiring nothing more than the Golden Rule.

Like all utopian visions, tech-utopianism did not account for human nature and human folly—for instance, that emotion is stronger than evidence as a motive for action and that no amount of free access to information is going to alter that principle. It is barely controversial at this point to say that social media has been toxic for certain individuals and for whole democratic societies, specifically because of its power to commend ignorance and for that ignorance to form the nuclei of social subgroups who take harmful action.

Yet, despite the dismaying evidence that science and civility are in retreat in the U.S. and other democratic nations, various organizations and individuals still insist that more access to more content is the antidote and that it is copyright law which stands in the way of salvation. Efforts to weaken the copyright statute, as well as efforts to dilute the efficacy of the law as it is, continue unabated, even while standing in the sticky goo of the failed experiment, which subverted so many principles to that alleged virtue of “openness.”

As discussed in an earlier post, a group of academic librarians met in late March with Brewster Kahle of the Internet Archive and Senator Wyden, and with straight faces, they opined that copyright law needs to change in order to provide better eBook access as an antidote to the disinformation that results in conspiracy theory and violence like the insurrection of January 6. The lack of evidence-based thinking revealed in that conversation alone is an irony that should speak for itself. To imply that making eBook lending cheaper for libraries is any kind of solution to our disinformation problem is magical thinking indistinguishable from the conspiracy theories themselves. And that’s before we address the specific policy flaws in their proposals.

Related to that discussion are the library association-backed eBook licensing bills in New York, Maryland, and Rhode Island, which amount to state compulsory licenses (therefore, likely preempted by federal law); and again, the argument presented for these short-sighted provisions is that communities are “shut out of the marketplace of ideas.” This is rhetoric straight out of the tech-utopian bible—exaggerating the role of the library—valuable as it is—to rescue society from its current perils through more voluminous eBook lending. But as I have previously noted on this topic, the majority of people engaged in some of the most dangerous, idea-free conduct do not suffer from lack of access, and what they do suffer from, librarians surely cannot solve.

Meanwhile, the ALI Restatement of Copyright project presses onward, ignoring criticism from the some of the most respected minds in IP academia, and is another example of an effort to weaken copyright law to serve that chimeric, cultural progress enabled by digital technologies. The 2014 memo articulating the rationale for the Restatement project states, “…it falls to the federal courts to attempt to improve the fit between a mid-20th century copyright law and 21st century digital technologies.” Yes. It falls to the courts. Or to Congress to rewrite the law. But impatient with these core functions of the Republic, a small group of ideologues took it upon themselves to write an alternative copyright law. And in the service of what?

Many of these same ideologues and associated organizations inveighed against passing the CASE Act to provide a small-claim copyright remedy for independent creators. Ironically, this is an amendment to copyright law in response to the digital age—namely, a response to rampant infringement enabled by digital technologies. But the “fixers” of copyright do not support proposals for independent authors to enforce their rights. They will likely continue their opposition as the small claims board begins operating next year, and their attacks will surely reiterate those virtues of digital life which have yet to manifest.

Looking solely at the U.S., it is tough to make the case that the open floodgates on content have, on balance, had a salubrious effect on the quality of discourse. The level of rancor and vitriol, from Capitol Hill to Main Street, has already boiled over in some of the worst spectacles in our history, and it shows no sign of abating. If experiments in copyright “fixing” were a drug trial, and “information” the main ingredient used to fight virulent idiocy, we would have to conclude that the treatment has little or no mitigating effect on the disease. Yet the copyright “fixers” continue to insist that the problem is dosage—that all we need is more.

It is only in the last few years that the American public, Congress, and the press have generally soured on the tech-utopian vision. While complaints vary across the political spectrum about, for instance, the conduct of social media companies, it does seem clear that the policy of laissez-faire for all things internet is about to expire. And a major reason for this change in direction is a broad recognition that the original theory—leading to the experiment in letting everything flow and expecting the good to outweigh the bad—has proven to be deeply flawed. So, in light of the fact that the “fix copyright” agenda was largely founded on the presumed success of that experiment, maybe it’s time to put down the toolbox and take a pause.