David Newhoff, Author at The Illusion of More

Fight for the Future Doesn’t Speak for Artists (or anyone else)

Fight for the Future recently launched a new campaign website called End Creative Monopolies, and among its many vague declarations, the petition asks signatories to “demand the dissolution of the current US copyright system and a fundamental reimagining of artists’ rights and protections for the 21st century that shifts power away from creative monopolies and puts the interests of artists and the public first.”

This is a common, if irrational, refrain. The underlying syllogism declares that corporate media producers and/or legacy copyright owners are wealthy and powerful (generally true). It then claims that independent creators are struggling and powerless (also frequently true). But the conclusion that the copyright system only serves the former at the expense of the latter does not follow as a generalization at all. The story about copyright and independents is a complex conversation about specific aspects of the law—judicial, statutory, and administrative—which FFTF is neither qualified nor willing to have in any way helpful to creators.

Meanwhile, you know who actually does care about helping indie artists make the most of the copyright system? Copyright advocates.

The people who are experts in the law and also believe in maintaining its fundamental principles are consistently talking about how to make the system work better for small creators. In fact, I don’t know a single pro-copyright authority (and I know quite a few) who does not think the system could use some tinkering in a few places to better serve individual authors. But tinkering. Not dissolution of the whole system and starting with a blank slate as FFTF decrees in its new campaign. Here are just a few recent examples off the top of my head:

Terrica Carrington, VP Legal Policy and Copyright Counsel at Copyright Alliance, recently blogged about the intersection of copyright and cultural misappropriation of choreography, explaining what the #blacktiktokstrike is all about. “Cultural misappropriation is an ethical concern that is not always rooted in the law,” writes Carrington, “but in some instances, these ethical concerns overlap with the law in such a way that makes the offense not only morally wrong, but illegal. That is the situation Black creators on TikTok are being confronted with: misappropriation of culturally relevant dances that may also be copyright infringement.”

The American Music Fairness Act is backed by copyright advocates great and small because this legislation finally proposes to overturn the status quo whereby U.S. terrestrial radio broadcasters have been exempted from royalty payments to musical artists. This law directly mandates that a very big industry finally pay fair rates to individual creators, which is just one reason my friend Blake Morgan (an archetypal indie artist) was standing on Capitol Hill the day lawmakers announced the bill this past June 24^th. Did FFTF back this bill? Nah.

Steven Tepp, copyright consultant and former senior counsel at the Copyright Office, recently spoke with me on the IOM podcast about some of the formalities in copyright registration and enforcement that, with even modest changes, could make copyright work better for the independent author. For example, Tepp specifically recommends making the designation “published” optional on registration applications because the uncertainty in the law as to the meaning of “published” puts small creators at a disadvantage when it comes to enforcing their rights. I know that’s wonky and arcane, but that’s what actual, sober policy reform looks like.

Prof. Lateef Mtima, founder and director of the Institute for Intellectual Property and Social Justice, spoke extensively on the IOM podcast about how essential it is to not throw out the IP baby with the bathwater. “One of the problems with some of those perspectives,” Mtima said, “is that it basically accepts a premise that the system can only be utilized for social evil and corporate benefit. As I said in the beginning [of the podcast], I fundamentally don’t think that way, but as a practical matter, that’s not particularly helpful.”

Copyright Alliance, whose key members include several of the big media companies FFTF is complaining about, has filed pro-copyright amicus briefs in cases that have major implications for small creators. Allen v. Cooper, Unicolors v. H&M, Canada Hockey LLC v. Texas A&M University, Brammer v. ViolentHues Productions, Fourth Estate v. Wall-Street.com, VHT v. Zillow, to name a few.

Oh, and what was that law that passed at the end of 2020 that FFTF and its sister organizations tried so hard to kill? The Copyright Alternative in Small-Claim Enforcement (CASE) Act? Arguably, this is the most significant amendment to U.S. copyright law ever written with the sole purpose of helping independent creators, and FFTF, EFF, PublicKnowledge, et al opposed it. And worse, they lied about CASE being a big media bill, which is absurd on its face because big media doesn’t need a small claim option.

Specifically, on the subject of music, the good folks at FFTF should be ashamed of themselves for citing Spotify as a predator that pays songwriters pennies. I mean Spotify is a predator that pays songwriters pennies, but where was FFTF when the songwriters started mentioning this problem about ten minutes after the platform launched in 2011?* I know! They were being founded. Coincidentally at the very same time the Internet Association was established, the anti-piracy bills SOPA/PIPA were being hammered by Silicon Valley, and Google increased its lobbying expenditures from negligible to the top five. One might almost get the idea that FFTF was forged in a crucible of tech money for the purpose of weakening copyright law.

With Friends Like FFTF?

Independent artists already know the difficulties when it comes to protecting their work and enforcing their rights. I interact with some of these creators almost every day. And not once have I seen a writer, musician, photographer, etc. say, “Wow, I’m struggling because Disney is too big.” Why they usually say is, “Some clown just posted my work on his website or used it in his commercial or in a YouTube video, etc. without permission.” Or quite commonly, “A foreign counterfeiter is selling my stuff on Amazon or eBay.” These are the kind of problems copyright advocates discuss all the time.

Policy changes are hard. Look how long it takes to get infrastructure legislation passed when everybody mostly agrees! Fight for the Future has a lot of nerve declaring that a system as complex as copyright law is “broken” just because they say it is and then presuming to declare that we must scrap it and “reimagine” the whole thing for the 21^st century. What this really means is that they want to reimagine some of your money into their donation coffers while they spin tales about agendas they are never going to achieve. And neither should they.

*Not surprisingly, yesterday’s Bloomberg Law story about renegotiating streaming royalties never mentions Fight for the Future. Just the usual pro-copyright advocates and experts navigating this difficult path between tech giants and the copyright law.

Is ComicMix going to trial? Probably not.

We may finally be at the end of a five-year litigation between Dr. Seuss Enterprises (DSE) and ComicMix. The latter produced a book called Oh, the Places You’ll Boldly Go!, a mash-up of Dr. Seuss and Star Trek that, though funny, was neither parodic nor fair use under any of the four factors according to the Ninth Circuit Court of Appeals as of December 2020. That court reversed the lower court’s finding of fair use and remanded rather than issue a decision on the infringement claim.

Both ComicMix and DSE filed motions. The former filed a Motion for Reconsideration as to the validity of the copyright registrations at issue; and the latter filed a Motion for Summary Judgment on a finding of copyright infringement. The district court denied both.

ComicMix’s Challenge to Registration

When this whole hullabaloo began, ComicMix initially argued that the copyright registrations in the Seuss works The Sneeches and Other Stories and Oh, the Places You’ll Go! were invalid due to the allegation that those group applications combined published and unpublished works. And because the Ninth Circuit in Unicolors v. H&M as since held that an application may be invalidated even where there is no intent to defraud the Copyright Office, ComicMix argued that the law has changed since it filed its original motion. The court disagreed, stating “…this Court’s Referral Order never addressed the intent-to-defraud issue in light of its finding that there were no known inaccuracies in Seuss’s copyright applications and registrations.”

Substantial Similarity and an Odd Conclusion

Of likely greater interest to rightsholders and copyright watchers is the district court’s finding that under the principle of this circuit’s “intrinsic test” for substantial similarity, that it was unable to decide that question in this case as a matter of law. So, what does that mean?

Assessing the similarity between an allegedly infringing work and the original work is always a mixed question of law and fact. In the Ninth Circuit, the court first applies an “extrinsic test,” whereby the plaintiff is required to identify the similarities between its work and the alleged copy. Next, the court reviews the evidence and first disregards any “copied” elements that are not protectable (e.g. line weight or style in a drawing) and then assesses the “thickness” of protection on the original work as a whole. For instance, when ComicMix made an almost verbatim copy of Seuss’s iconic “Star-Off Machine,” they copied a work with “thick” protection because it is highly original in both subject matter and style.

In the Ninth Circuit, once an analysis passes the “extrinsic test,” the question of similarity then proceeds to an “intrinsic test,” which asks whether an ordinary observer would perceive substantial similarity between the original work and the alleged copy with regard to “total concept and feel.” Although it is standard that a jury is the trier of fact in this circuit’s “intrinsic test,” Devlin Hartline of Hudson Institute tells me via email, “That’s a problem when it’s an obvious case like this one. The defendant’s entire purpose was to copy the total concept and feel. Now, it may go to the black box of a jury, but it would be better to have the judge’s reasoning on this in order to better develop the test. Other jurisdictions give the judges more leeway on this question.”

There is no question that Hartline is right about ComicMix’s intent to copy extensively, especially as the principals stated in testimony that they painstakingly set out to copy Seuss, even hoping that DSE might want to license Boldly!. Then, in the appellate court’s thorough rejection of fair use, it describes extensive copying—both quantitative and qualitative—which this district court reiterates for about seven pages. Nevertheless, this court concluded that it cannot grant summary judgment under the “intrinsic test” as a matter of law. The opinion states:

“…in light of the rarity of courts granting summary judgment in favor of copyright holders on the issue of copying in this Circuit, and the lack of any authorities doing so with regard to subject matter comparable to that at issue here—i.e., illustrated books of rhyming prose—the Court finds, on the record presently before it and viewing the facts and evidence in the light most favorable to ComicMix as the nonmovant, that Boldly ‘[is] not so similar to the protected [works] that no triable issue exists with respect to whether the total concept and feel of the works are substantially similar. Therefore, the issue of intrinsic similarity must be left for the jury.’”

How the court can use the language “not so similar” in this case, rather than simply rule that no reasonable jury could possibly mistake the similarities, is a bit of head-scratcher. Still, I think it’s a safe bet that this is likely the end of a long journey for ComicMix. The fair use defense is a dead issue, and by proceeding to trial, they would have to believe that a jury will somehow not see that Boldly! extensively copies Seuss’s works. As indicated in older posts about this case, I predict this one will serve as a very useful guide to future creators for where not to go when using existing creative works—especially famous ones.

Cox Appeal in Suit with Music Labels May Be Overreaching

On May 24, Cox Communications filed its opening brief at the Fourth Circuit Court of Appeals, asking that the panel either vacate the jury verdict holding the ISP liable for secondary copyright infringement or to at least order a new trial. Sony Music, joined by 57 other labels, sued Cox for vicarious and contributory infringement of 10,017 sound recordings and compositions, and a jury awarded Plaintiffs the unprecedented damage award of $1 billion. Cox’s appeal includes arguments against the foundations for that award, but of greater interest to copyright owners are the questions presented on the matter of secondary liability.

In fact, Sony Music et al v. Cox Communications may prove a landmark case in the ongoing battle that began in the 1990s, when it was first recognized that the internet would inevitably be used by consumers to pirate copyrighted works in volume. That assumption was the rationale for §512 of the DMCA, which the major ISPs of the era lobbied Congress to write as a conditional shield (“safe harbor”) against liability for copyright infringements committed by users of their services.

In the precedent case in the same circuit (BMG v. Cox), it was proven that Cox failed to meet the DMCA’s statutory conditions requiring account termination of repeat infringers and, thereby, voided its “safe harbor,” allowing both that trial and Sony to proceed. Losing DMCA immunity does not prove that an ISP is liable for infringements committed by users, but the two are related because losing the “safe harbor” and reaching the standards of secondary liability both entail considerations of law and fact as to what actions the ISP took, either to respond, or avoid responding, to infringements via its network, and why the ISP took, or failed to take, those actions.

Contributory Liability

Contributory liability exists when the accused party has knowledge of illegal conduct and materially supports or induces that conduct. On appeal, Cox argues that the district court erred at summary judgment by finding that notices sent at the direction of the RIAA were sufficient for establishing Cox’s knowledge of the infringements at issue. It also argues that the verdict cannot stand because the company’s decisions to avoid terminating the relevant subscribers does not reach the standard of “material support” as a matter of law. “…no reasonable juror could find that Cox materially contributed to each infringement for which it was held liable. The district court erroneously found that Cox materially contributed because internet access was necessary to each infringement,” the brief states.

Vicarious Liability

To be vicariously liable for copyright infringement, a party must receive a direct financial benefit from the infringement, and it must have the right and ability to stop or prevent the infringement. Here, Cox argues that because it provides access for flat fees, and because its service is provided for substantially non-infringing purposes, the ISP did not receive any direct financial benefit as a result of customers using its network to illegally download music. The brief argues, “The district court defied prevailing law in holding that Plaintiffs were not required to prove that” Cox had a direct financial interest in users downloading songs or that it promoted the opportunity to engage in infringement as a “draw” to consumers. “[The court] further erred in finding that Cox received a direct financial benefit by not terminating…subscribers who infringed.”

On the second prong of the vicarious liability question, Cox argues that it does not have the right and ability to “supervise the conduct of its six million customers” and further states that nobody should want an ISP to supervise consumers so invasively. In order to avoid the “crushing liability” implied in this case, Cox asserts that “ISPs would have no choice but to terminate subscribers the moment they are accused of a single infringement, stranding countless subscribers in an internet exile.”

Questions of Law and Fact

Cox appeals on matters of law, but it will be interesting to see what the panel makes of the more colorful generalizations in its brief, which may be there to obfuscate facts that go directly to the legal questions presented. For example, the brief’s first sentence declares, “The music industry is waging war on the internet.” A provocative and sweeping headline for the media, but the panel may find the fatal flaw in Cox’s appeal is that it too broadly asks the court to consider implications for “the internet” while eliding details germane to Cox’s conduct.

Specifically, on the matter of contributory liability, evidence was presented to the juries in both BMG and Sony indicating that Cox engaged in willful blindness and that it actively avoided taking measures leading to account termination, even for recidivist infringers. Both the district court and the juries found this conduct to be “material support.” On the question of vicarious liability, similar evidence was presented to show that the motive for Cox’s failure to terminate relevant accounts was its desire to preserve the revenue from those customers, and this was held to be “financial benefit.”

Indeed, it would seem difficult to argue before a reasonable jury that protecting about $94 million annually is not “financial benefit,” and that is roughly the value of the 1% of total customers Cox estimates are encompassed by the Sony claim.[1] And in perhaps another example of overreaching, this 1% number appears to be the rationale for the following assertion in the Cox brief: “… unlike the offerings of Napster and its ilk, internet service is neither designed nor advertised to promote piracy. And on this record, 99% of Cox’s internet users never put it to that use.”

Even if Cox could prove that its other 5.94 million customers never engage in piracy, the comment reads like another distraction for the headlines because it is irrelevant to the questions presented. If Cox was shown to have materially supported repeat infringers for the purpose of protecting any of its revenue, it doesn’t matter what portion of the balance sheet that activity represents.

Although certain questions inherent to the case are not without difficulty (e.g. account termination is nothing to take lightly), it seems that Cox wants the court to hold that ISPs are inherently immune from secondary liability for copyright infringement. But if that were true, then §512 of the DMCA would not have been written in the first place. Why carve out a shield for a liability that cannot exist based on the general function of the enterprise being shielded?

This legal paradox has been steadily woven into the narrative for the past twenty years by the ISPs themselves. In the 1990s, it was Cox’s industry that lobbied for the “safe harbor,” and the conditions in §512 of the DMCA were substantially predicated on the infringement mitigation methods those companies claimed were technologically feasible. Those measures never really materialized. Instead, the narrative shifted during the intervening years to the declarations: We can’t supervise. You don’t want us to supervise. And the internet is too important to cancel anyone’s account ever. We’ll see, but I’m not sure the courts are going to buy it.

[1] 60,000 customers x $130 average monthly bill x 12 months.

Author: David Newhoff