Category: Film

Allen v. Cooper: Justly Decided If Not Exactly Just

Professional creators following the case Allen v. Cooper were no doubt disappointed by the Supreme Court’s March 23 decision—a unanimous holding that the States (and/or their agents) are generally free to infringe copyrights with impunity. But perhaps authors of works should not to be entirely discouraged on this matter, because it seems clear from the opinions written that the Justices would have preferred if the law had led them to the opposite conclusion. Moreover, a path for legislative reform remains open.   

A Quick Recap

See post here, or read more extensively on the website of plaintiff Rick Allen. The short version is that Allen’s company Nautilus Productions filmed and photographed excavation and research work performed on Blackbeard’s flagship Queen Anne’s Revenge, which was discovered off the North Carolina coast in 1996. Subsequently, the state made unlicensed uses of Allen’s copyrighted materials, primarily online, and when Allen sued for infringement, North Carolina invoked its sovereign immunity under the Eleventh Amendment, which bars citizens or entities from bringing federal suits against the states or its agents. 

In 1990, Congress passed two laws, the Patent Remedy Act and the Copyright Remedy Clarification Act, both designed to abrogate state sovereign immunity specifically for patent and copyright claims where states are alleged to be the infringing parties. In 2015, North Carolina passed “Blackbeard’s Law,” which specifically lays claim to photographic and AV works documenting shipwreck material a “public record.” So, why didn’t Congress’s CRCA protect Allen’s copyrights in this case? Well …

The IP Clause, the Eleventh and the Fourteenth Amendment walk up to the bar …

As we all know, Article I of the Constitution grants Congress the authority to establish copyright and patent laws; and one rationale for that clause, as Madison noted in Federalist 43, was the assumption that the new nation would be best served by uniform (i.e. federal) laws for intellectual property. (In copyright practice this uniformity was not fully adopted until 1978, and then there’s the whole sound recordings morass, but Madison’s seminal hopes were succinctly clear.) 

At the same time, the prospect of erecting a federal court system was a sensitive matter among anti-Federalists, who were hardly sold on the prospect of union among the States in the first place, let alone allowing their State governments to be potentially sued in the new federal courts by citizens of other States. Thus, in response to just such a case arising, the Eleventh Amendment was passed in 1795 to affirm the principle of “state sovereign immunity,” already extant at the founding period.

Without trying to cram a history of sovereign immunity into this post, suffice to say that States are not generally subject to litigation in federal court but for a handful of exceptions, and most of these exceptions derive from the Fourteenth Amendment of 1868. Relevant to Allen v. Cooper, Section 1 of the Fourteenth affirms civil liberties to all Americans, and Section 5 affirms Congress’s authority to pass such laws as may be necessary to enforce Section 1. Thus, sovereign immunity is abrogated where a State’s conduct or law runs afoul of constitutionally protected rights. 

So, it might seem reasonable to assume that the Article I power of Congress to write copyright and patent laws, which secure the intellectual property rights of all U.S. citizens, would naturally fall into the scope of protections affirmed in the Fourteenth Amendment. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law….” 

In fact, whether one views IP protections as grounded in natural rights or as purely utilitarian forms of property rights, the Fourteenth Amendment, combined with the Article I power, would seem to support Congress’s authority in 1990 to write the pair of laws that explicitly declared that sovereign immunity does not foreclose infringement claims brought by copyright and patent owners against the States. Alas, not so much.

A Very High Standard

Allen’s claim in this case rested on the premise that the 1990 CRCA abrogated the sovereign immunity of North Carolina; but unfortunately, the Supreme Court had already weighed this exact argument with respect to the CRCA’s sibling law, the Patent Reform Act. In the 1999 decision, in a case known as Florida Prepaid, the Court held that the Patent Reform Act did not abrogate sovereign immunity for two intertwined reasons. Article I powers alone are not sufficient grounds for Congress to circumvent sovereign immunity, and this can only be addressed by Section 5 of the Fourteenth Amendment where there is compelling evidence of a harm being intentionally caused by the State, and where no other remedies (i.e. due process) are available. 

In legal terms, the opinion states, “a Section 5 abrogation of sovereign immunity must be ‘congruent and proportional’ to the Fourteenth Amendment injury it seeks to remedy.” In practical terms that means if Congress wants to salvage the intent of the CRCA and/or the Patent Reform Act, they will need evidence, which proves that intentional infringement by State actors poses a significant threat to the interests and rights of authors and/or inventors. 

In reference to Florida Prepaid, the Kagan opinion reminds us, “Congress, we observed, ‘did not focus’ on intentional or reckless conduct; to the contrary, the legislative record suggested that ‘most state infringement was innocent or at worst negligent.’” Those data are not sufficient to circumvent the sovereign immunity. But that was then.

Especially with regard to works protected by copyright, digital technologies have changed the landscape considerably since 1990—even since 1999. Consequently, State actors (e.g. State universities) have both new means and new motives to infringe more frequently and more harmfully than the pre-digital age. Seemingly aware of these contemporary realities, the Supreme Court’s discussion of Allen v. Cooper connotes discontent with its unavoidable conclusion.

The Court Rules Justly But Hints Justice Is Not Served

The majority opinion written by Justice Kagan, and joined by Roberts, Alito, Gorsuch, Sotomayor, and Kavanaugh, with Thomas, Breyer, and Ginsburg concurring, was bound by precedent, namely Florida Prepaid. Allen’s appeal to the CRCA could not hope to overcome the principle of stare decisis, let alone in a matter that sets so high and precise a bar for setting aside states’ rights. Nevertheless, the opinions of the Justices not only present a roadmap that Congress might follow to seal the sovereign immunity loophole for copyright (and patent) owners, it practically calls upon Congress to do so. The Kagan opinion asks…

“All this raises the question:  When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. And the Fourteenth Amendment bars the States from “depriv[ing]’ a person of property ‘without due process of law.’ … So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause.” (citations omitted)

Then, in a passage that all but elbows the IP Subcommittee in the ribs …

“Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know these rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

This less than subtle overture to the legislature was one of two points of moderate dissent by Justice Thomas, whose concurring opinion admonished the Court to refrain from advising Congress on the authorship of future legislation. But writing almost the opposite view, the concurring opinion by Justice Breyer, and joined by Justice Ginsburg, laments the unavoidable conclusion necessitated by law, if not by principle. “That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss,” the Breyer opinion declares. 

Amiss indeed. From the moment Madison and Pinckney drafted the IP Clause, it cannot have been imagined, let alone desired, that the individual States would be left free to appropriate intellectual property from individual citizens. After all, it was a State legislature, in the Massachusetts copyright law of 1786, that declared, “As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is produced by the labour of his mind.”  

What Netflix’s ‘The Great Hack’ Gets Right

I’ll tell the story again.  This blog began the day a friend of mine—a very smart one—shared an article on Facebook that was patently untrue.  When I confronted him about this, he responded that he cared more about the “issue” than the veracity of the article.  The double-take triggered by his cognitive dissonance led me to poke around and discover that the false article he had shared was hosted on multiple websites, including The Huffington Post.  This sparked the hypothesis that the unprecedented volume of repetition (a.k.a virality) made possible by the internet breeds dangerous levels of consensus around false narratives.  Hence the name The Illusion of More. 

That was eight years ago and small potatoes.  Last week, I watched the new documentary The Great Hack, made for Netflix and directed by Karim Amer and Jehane Noujaim.  The film’s focus is Cambridge Analytica and the (now-dissolved) company’s use of social media data to manipulate major political outcomes around the world—including the UK’s Leave.EU campaign and the American presidential election of 2016.  For anyone who somehow missed this general story, the film provides a solid overview of events along with details you might have missed and engaging profiles of the key whistleblowers and investigators who shed light on Cambridge Analytica’s activities.

In an article for The Nation, Micha L. Sifry describes what the film “gets wrong,” namely its strong implication that Cambridge Analytica literally won the election for Donald Trump.  On this one binary question, we could certainly run around the barn ad infinitum.  Those who do not like Trump will be more eager to accept this conclusion while those who support him will remain understandably resistant to any allegation that his presidency is the result of tech-enabled chicanery.  Sifry writes …

“The inference, never blatantly stated but simply conveyed by all the tricks of modern documentary-making—striking digital graphics meant to illustrate how our data leaks into the hands of others, ominous music, and alluring close-ups of  [whistleblower Brittany] Kaiser as she watches the scandal unfold on television—is that Trump won because Cambridge Analytica gave him a secret edge.”

While not a completely unfair criticism of the film, Sifry is guilty of constructing at least a diminutive straw man when he focuses on the legitimacy of Trump’s election rather than the film’s broader and more urgent message—that the democratic process is unequivocally being hacked.  This is what the film gets right, and the point is emphasized by one of its main subjects, Carole Cadwalladr, The Guardian journalist most responsible for investigating the Cambridge Analytica story.  

Cadwalladr has made clear in her articles, talks, and in this film that billionaire ideologues, using “weapons grade” information technology and massive amounts of Facebook user data, sought to fracture the democratic process through calculated disinformation campaigns and, as she states, “It’s not about left or right, Leave or Remain, Trump or not Trump.  It’s about whether it is possible to have a free and fair election ever again.” 

“The Great Hack wants to make its viewers care about data rights and the dangers of modern misinformation campaigns, but unfortunately is itself a slick piece of misinformation that plays artfully on the prejudices and misunderstandings rife in its targeted audience,” Sifry states.

Again, this may be a fair criticism of the film itself, but one which Sifry uses to draw an unfair conclusion about its relevance. I personally agree that The Great Hack is often too slick for its purposes.  While it may be a market reality that documentarians often need to employ glossy, theatrical production values (e.g. lively compositing effects) in their films in order to compete for audience attention, Sifry is justified in asserting that the creative choices made by the producers do imbue the film with the tone of propaganda that can dilute the seriousness of its reportage. This is especially unfortunate when the film’s subject matter is propaganda and manipulation itself.  

Consequently, the fair critique that the film is, at times, heavy-handed provides Sifry et al the opportunity to dismiss its main narrative, which is to describe how Facebook, a platform marketed as a means to “connect people,” has been weaponized to drive people apart.  This phenomenon is irrefutable and should not be brushed aside just because the producers got a bit lost in style over substance.  The substance is still there.  The story itself is arguably the greatest conspiracy in the history of modern republics. And it is still happening.

Notably, in order to bolster his criticism of the documentary, Sifry cites evidence that manipulative advertising is only so effective, stating, “When it comes to voters’ decisions about their choice of candidate, most forms of paid political persuasion, including TV ads, online ads, mailers, phone calls, and door-knocking, have no discernible effect in terms of changing people’s minds.”  

That may be true if we are talking about traditional political advertising, especially in a pre-Facebook world; but we are far from that particular Kansas, Toto.  Sifry falls into the same trap many people do by mis-measuring this period using pre-digital-age metrics.  The psychological effects of online “engagement” are nothing like the psychological effects of traditional advertising; and this true even without an intermediary using your personal data to target your personal hot buttons.   

If we go back to the example of my friend sharing a false news article, he did not perceive that material as an advertisement.  He perceived it as information, which just happened to support a rationale for a conclusion (a.k.a. deep story) he had come to believe about the National Defense Authorization Act (NDAA) of 2012.  He was wrong about his underlying complaint, but not alone in his wrongness. Dozens of my friends were sharing the same misinformation about the bill, which was being sloppily reported all over the place; and the mere fact that this apparent consensus kept appearing on everyone’s newsfeed fostered a self-fulfilling prophecy.  But here’s the important common thread, in my view, linking that moment to the present …

The phenomenon that was metastasizing then, and which has come around to bite us now, was the steady erosion of trust in the pillars of democratic society.  If one of the most dangerous aspects of Donald Trump is that he consistently undermines or contradicts the intelligence community, it is noteworthy that many of my Democratic and left-leaning friends were doing exactly the same thing just a few years ago—usually because of some careless bit of fluff they found on the internet, and often because “digital rights” groups like the Electronic Frontier Foundation were sowing just as much distrust in those organizations as the current president does today.  This is not an indictment of the principle oversight, only an observation that living in a paradigm of universal distrust is a vicious cycle from which there is no escape.

Consider the moment we’re in this month.  The FBI says white-supremacist ideology—which just happens to have drawn strength from the techno-libertarian approach to cyber policy—poses a significant and growing threat to domestic security.  So, if one finds it appalling that Tucker Carlson can call the this evidence a hoax in the same breath in which he calls election interference a hoax, it is worth noting that the ground for his brand of bullshit was softened through social media by every user across the political spectrum finding different rationales to dismantle trust in agencies like the FBI.  

After all, it was not very long ago that most of my left-leaning friends were endorsing guys like Julian Assange and Ed Snowden as essential antidotes to the American intelligence apparatus.  This sensibility was also fueled by the steady drumbeat of tech-utopians, who continue to promote the illusion that “the internet” somehow provides us with transparency as an alternative to trusting any experts who might actually know what they’re doing—a folly that is admittedly complicated now that we have an Executive who is eager to undermine expertise in every department.   Consequently, it has been interesting to see that many of the same people who thought Wikileaks was the panacea to conspiracy are now hoping against hope that the men and women in the intelligence community are doing their jobs despite assaults on their integrity coming from their own leadership.

In this context of not knowing whom to trust, Sifry is not entirely unfair to criticize the filmmakers’ apparent infatuation with Brittany Kiaser, the former Obama intern, who became a major Cambridge Analytica executive and then turned whistleblower against her colleagues.  And he is almost certainly justified in saying that, “[Kaiser] is not the first person to pump a small role in [Obama’s] campaign into a career-making calling card; Cambridge Analytica is not the first political technology vendor to made [sic] big, unproven claims about its abilities. But we live in the age of silicon snake oil.”

We do live in an age of silicon snake oil, but that fact alone is one reason Sifry misses the point of The Great Hack as both information and metaphor.  Even if Cambridge Analytica achieved a fraction of what is presented in the documentary, it would still be a major scandal and, perhaps most importantly, demonstrates why the sales-pitch that social media would promote better forms of democracy was the apotheosis of modern snake oil swindles—so beautifully wrapped in its shiny hubris that the hucksters believed it themselves.  And many still do.  

Metaphorically, Sifry is naïve to recommend dismissing Kaiser for her character flaws rather than identifying with her because of them.  After all, to the extent that her personal narrative is accurately portrayed in the documentary, it seems to me that her arc from progressive-minded idealist, to overpaid hack for a technology company doing very bad things, to sobered individual trying to remedy some of what she did wrong, does mirror the broader narrative we have been watching unfold with regard to Silicon Valley over the last two years.  And that is fundamentally what The Great Hack gets right.

Petitioner Asks SCOTUS to Hear ReDigi Case

A new business called OmniQ has filed an amicus brief urging the Supreme Court to grant cert in ReDegi v. Capitol Records, alleging that the Second Circuit’s opinion in December 2018 effectively brings an end to the First Sale doctrine.  The company is developing a patent pending model that (presumably) would facilitate an online market for “used” and hard-to-find motion pictures.  Its brief contends that the lower court erred in its plain text reading of “reproduction” under the copyright law and would permanently “outlaw” the kind of technology they propose to introduce.

It is unlikely the Supreme Court will agree to hear ReDigi, not least because, as Hollywood Reporter’sEric Gardner rightly notes, “The issue of whether the First Sale Doctrine has survived the digital age may make for good scholarly articles, but is the Supreme Court really going to devote its limited bandwidth to technology that’s already outdated?”  ReDigi proposed to facilitate trade in “used” digital music files at the same time that subscription streaming was on the rise and may, therefore, be considered obsolete at inception. But in its brief, OmniQ implies that its business model fulfills an unmet need in the market by addressing what it claims is dwindling access to classic motion pictures …

…the public has already lost access to vast libraries of motion pictures and other audiovisual works, simply because modern technological solutions like the one at issue here are lacking.

…the breadth of choice in movies was many times higher 20 years ago than it is today.

I personally find the brief’s argument about the lower court’s interpretation of “reproduction” somewhat persuasive when it states “there is no ‘reproduction’ without the multiplication of copies.” If in fact a file can be moved from my hard drive to your hard drive so that you now have it and I do not, then it there is a plausible argument to be made that “reproduction” has not occurred.  But from there, I think OmniQ’s claims overreach, blaming copyright protections for phenomena fostered solely by the market and technological change.

First Sale Probably Does Not Survive the Digital Age

Even if the Supreme Court were to agree with OmniQ that the Second Circuit misread “reproduction” in ReDigi, this would not rescue the fact that the proposed business model exceeded the purpose of the First Sale doctrine because it would create a “used” market in name only—one that could theoretically become a substitute for the primary market.  In 1908, the Supreme Court held…

“It is not denied that one who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it. The purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.”

And for the next century, physical copies of books, records, DVDs, etc. were sold in second-hand stores, garage sales, or rented through outlets like Blockbuster.  But the fact that a “used” digital file is identical to a “new” digital file is a technological reality that reshapes the meaning of “second-hand” material, and this at least alters—if it does not outright extinguish—the First Sale principle.  

Further, the potential for a transaction facilitator (which OmniQ presumably aspires to be) to foster a parallel trade in “used” digital files operating at internet scale is a vastly different consideration from the scope and nature of the secondary market that emerged between 1908 and the digital age. 

Finally, these same technological changes have spawned a primary market that (despite persistent complaints that all media should be free) is both cheaper and more abundant than the primary market of 20 years ago.  For example, The Criterion Collection, while perhaps not wholly satisfying to all film buffs, allows an account-holder to stream a library of motion-picture classics for about 27 cents a day—access that was unthinkable 20 years ago.  

In the still-evolving digital market, therefore, a petitioner like OmniQ should at least be required to demonstrate that its purpose is to facilitate a “second-hand” trade in material that is not likely to become available via licensed distribution systems—whether online or as physical copies.  And in this regard, the brief makes an emotional and cultural plea that fails to present a problem caused by copyright law.  

“1960 Doesn’t Exist on Netflix”

To demonstrate the market need for its business model, OmniQ relies almost entirely on one article written by Zach Schonfeld in 2017 for Newsweek.  It is an engaging piece on the theme that motion pictures from the oeuvres of Hitchcock, Truffaut, Fellini, Kubrick, et al are disappearing from mainstream cultural literacy.  The spirit of the piece which focuses almost exclusively on Netflix, is well captured when Schonfeld quotes blogger Nora Fiore (a.k.a. The Nitrate Diva) …

“If you’re the biggest name in film streaming services, the less you offer in classic movies, the more you imply that classic movies have less to offer.  It’s a terrible message to put out there.”

Perhaps this is a fair observation about contemporary culture and the movies, but the reasons for these changes have little or nothing to do with copyright law and everything to do with the inevitability that Netflix was going to transition to become a producer of new material. 

Before I go on, I have to interject that it is curious that in one moment, copyright is alleged to be a framework for nostalgic fuddy-duddies who don’t understand the future, but in the next moment, it is the nostalgic fuddy-duddies who are blaming copyright for stifling connection to the past.  Or I might also note that one of the complaints about copyright terms is the false allegation that creators will not produce anything new as long as they retain copyrights on older material they can keep reselling.  Maybe there are forces at play that are not really about copyright?

Speaking as one nostalgic fuddy-duddy who would rather watch Day for Night than Game of Thronesany day, the problem (if we agree it is a problem) with the apparent loss in status of classic films in the cultural mainstream is not a licensing issue.  Netflix could make all these films available tomorrow, and I predict that younger audiences will, by and large, think they’re being told to eat their vegetables.  

It isn’t copyright’s fault that a whole generation has been feasting on a steady diet of short-attention-span, handheld video clips for more than a decade.  The young mind does not easily transition from TikTok to Tarkovsky, and availability of the latter alone is not going to fill the apparent gap in cinematic literacy. Piracy statistics bear this out year after year as even illicit access worldwide continues to favor major, contemporary works like blockbuster movies by substantial margins.  

As an observer of culture and a cineaste, I would love to join Schonfeld and the film historians, academics, and buffs he cites for a drink to mourn the apparent loss of interest in the classics, but this was to be expected in a market destined to expand and become more segmented.  It should be little surprise in a world where we can have “liberal news” and “conservative news,” that entertainment is going to be even more distinctly subdivided.  

On the plus side, we get a diverse range of material and subject matter because investors are not restricted to appealing to the safe middle every time.  On the negative side, we no longer share a common film culture as we once did.  But this is a change borne of technological innovation in distribution systems that has nothing to do with copyright per se. 

Further, I think Schonfeld’s article is unduly harsh on allNetflix offerings as being substandard when he writes, “The universal power of boredom guarantees that any piece of Netflix programming will be watched by millions simply by virtue of being plastered across the Netflix homepage.”  This complaint that Netflix does not host a library of classics that Schonfeld et al believe it should is not especially helpful to OmniQ’s purpose.  After all, this is familiar territory. When David Lynch’s Blue Velvet was released in 1986, the box-office winner that year was Top Gun. It was ever thus.

Which Market is OmniQ Really Trying to Serve?

Serious film buffs have long been a niche audience who, by and large, have had to spend extra resources in the pursuit of their passion.  In many ways, I can only imagine that film-buffery is easier today because one can enter a title into various search tools and locate, for instance, a used DVD someone is willing to sell.

Presumably, OmniQ wants to facilitate the same kind of one-to-one transactions in titles that would-be sellers own as digital files on hard drives rather than plastic disks.  And it is not an unreasonable premise to claim that First Sale should apply to this kind of trade so long as the number of copies in circulation remains fixed and never increases.  A problem arises, however, when an enterprise facilitates this trade at scale in works that are available through licensed channels; and it is not clear which market OmniQ proposes to serve.

If OmniQ is focusing on the serious collector looking to obtain a digital file of a hard-to-find title by Ernst Lubtisch, they may have a reasonable legal argument, but possibly not a viable business.  If instead, the company is responding to a declining interest in classics like The Apartmentor Spartacus (both named in the Schonfeld’s introduction), availability is not the underlying cause of this cultural phenomenon.  These and other popular classics are widely available through existing channels, including streaming, and this weighs against OmniQ’s claim that First Sale remains relevant in the digital age.  

As mentioned, it seems highly unlikely the Supreme Court will hear ReDigianyway, but even if it were to overturn the Second Circuit opinion on “reproduction,” I suspect OmniQ would still have a lot of homework to do in order to prove that its business operates within the spirit of First Sale.  I do not think one magazine article, no matter how much I personally agree with the spirit of its commentary, is going to support OmniQ’s argument with regard to copyright law.