Category: Art

ReDigi, Fair Use, and Libraries

Photo by author.

In my last post, I opined that the fair use interests of librarians and educators are not necessarily aligned with for-profit business ventures seeking to exploit creative works in ways that can harm authors.  For instance, in the case of Capitol Records v ReDigi, now on appeal at the Second Circuit,  Jonathan Band filed an amicus brief on behalf of the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Internet Archive in favor of a reversal of the district court opinion, which held that ReDigi is infringing.

To the casual observer, ReDigi is a service that acts as a middle-man to broker the sale of “used” MP3 files.  The idea is that, when you decide you’ve listened to your iTunes-purchased copy of Meat Loaf’s “Bat Out of Hell”* for the last time and think somebody else might want it,  you can sell the MP3 files via ReDigi as “used” items for a portion of the original price, with a cut going to ReDigi.  From a legal standpoint, however, ReDigi is a somewhat complex, computer-to-computer model hoping to avail itself of a copyright limitation written for a purely physical world.

To the best of my knowledge, the ReDigi model has changed a couple of times, but the way the system works is that the MP3 files being offered for sale are removed from the seller’s devices and copied onto the ReDigi server from which the seller alone may still listen to the tracks until they are purchased by someone else.  Upon sale, the files are removed from the server and copied again onto a device belonging to the purchaser. Naturally, this sounds attractive to many consumers, and ReDigi seems to have made an effort to ensure, to the best of its ability, that only one owner at a time has the files.  But that doesn’t necessarily make the service legal, or even a good idea in the market.

The district court held that ReDigi infringes the plaintiff’s rights of reproduction and distribution. ReDigi’s defenses that it is non-infringing were based on the first sale doctrine and fair use; and it is with regard to the fair use defense that the libraries apparently see a common interest.

Band’s amicus brief argues that a finding of fair use in ReDigi would set a precedent that furthers the interest of libraries to develop new models for digital-age lending and other services. And this is where I personally see a necessary distinction between the interests of libraries—which sometimes receive specific carve-outs in copyright law—and avoiding the particular harms caused by a ReDigi model, which could very easily be an Amazon-scale service overnight.

Digital First Sale Creates an Artificially Deflated Market

The first sale doctrine (Section 109(a) of the copyright law) is the reason you are allowed to sell your individual copies of books, CDs, DVDs, etc. as used items without infringing the copyright interest of the authors.  Its predicate is a case from 1908, long before anyone could possibly imagine “owning” entertainment media in the form of data that is not exclusively bound by a physical object like paper or a disk.   ReDigi argued that the first sale doctrine makes its business non-infringing, but the court disagreed on statutory grounds—namely that the language “plainly applies to the lawful owner’s ‘particular’ phonorecord, a phonorecord that by definition cannot be uploaded and sold on ReDigi’s website.”

As a technical matter, ReDigi has to make a copy of the files from the “seller’s” computer to ReDigi’s server. That copy is already an infringement of the rights holders’ exclusive right of reproduction, and that copying is not protected by first sale doctrine.  But even if one wishes to argue that this is a mere technicality, there is still ample reason not to apply first sale doctrine in a purely digital market.

The District Court stated that if ReDigi seeks amendment  to the Copyright Act to satisfy its interpretation of first sale, that this is job of Congress and not the courts. On that subject, Congress has reviewed first sale doctrine as part of its comprehensive review of the Copyright Act. (In fact, I sat on a panel in 2014 hosted by the USPTO discussing this very issue.) And the Department of Commerce examined the subject of digital first sale and concluded that the principle did not apply to digital transmissions and that there is no evidence warranting any change to existing law.

I advocate against digital first sale for the simple reason that digital files cannot be “used” according to any rational definition of that term.  Since 1908, the distinction between the used, secondary market for these goods and the primary market has been clear, with the former posing no threat to the latter.  Even in cases in which used items appreciate in value (e.g. rare books), I would argue this will only ever apply to physical goods and not to raw data that may be endlessly copied from device to device. (A signed, first edition Yeats is worth a couple grand; an eBook containing the same written material is free.)

Because a “used” digital file is as pristine as a “new” digital file, a service operating at scale like a ReDigi (or an Amazon) would simply create a new primary (or alternative) market that artificially degrades pricing for digital-only works.  Regardless of the fact that some consumers feel that any price above zero is a “rip off,” the reality is that we pay comparatively low prices for the media we store today, and even lower prices for media we access through subscription or ad-funded models.  If anything, Congress should reaffirm that first sale applies solely to physically-bound, legally acquired, copies of works.

ReDigi’s Fair Use Argument and the Libraries’ Interests

Apparently unconcerned with the potential harms of a ReDigi model in the consumer market, the above-named library organization would like the appeals court to find that ReDigi’s service is a fair use under the first prong of the fair use test:  1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes.

Initially, ReDigi sought to defend its position as a cloud service—that users have a fair use right to store their files in the cloud; and Capitol did not dispute this part of the argument.  But the fact that this storage was “incident to sale” of the works meant that ReDigi’s service falls “outside the ambit of fair use.”  The district court agreed.  Moreover, the court held that ReDigi’s use was not “transformative” because its service does not add anything to the works and that the commercial nature of the use tilted away from a finding of fair use.  The other three prongs of the fair use test do not favor ReDigi, particularly the fourth, given that their use can clearly cause market harm to the rights holders.

In his brief, Jonathan Band takes a curious position that the lower court failed to understand how ReDigi is protected by first sale doctrine and that a reversal of this reasoning would support a finding of fair use.  He writes …

“The district court overlooked the obvious fact that the use ReDigi sought to enable was analogous to one permitted by a central feature of the Copyright Act: the first sale right, codified at 17 U.S.C. § 109(a). The district court found that ReDigi’s uses did not fall within the scope of section 109(a) because the first sale doctrine is a limitation on the distribution right, not the reproduction right, and ReDigi’s service involves reproduction. However, the similarity between ReDigi’s service and conduct permitted under section 109(a) should have weighed in ReDigi’s favor under the first fair use factor.”

Going back to what first sale allows—namely that you are free to sell that “Bat Out of Hell” CD at a yard sale—fair use doesn’t enter the picture at all. Your right to sell your particular copy of a book or album is not a use of a copyrighted work that in any way implicates a fair use defense.  So, even if these petitioners could persuade the court that it is sufficient that ReDigi is “analogous” to the application of the first sale principle, it is hard to imagine how this favors a finding of fair use, which is supposedly the real interest among these librarians.

My read is that the argument Band presents seems over-broad—a hope that a finding of fair use in ReDigi will open a wider door for libraries to develop new means to fulfill their missions in a digital world.  In this sense, Band appeals to the Google Books case, in which Google Books prevailed on fair use analysis to the benefit of library interests. But without writing another thousand words, suffice to say that Google Books is nothing like ReDigi.  Google Books does not engage in commercial transactions, it does not make whole works available, and it provides services that are either “transformative” (e.g. full-text search) or fair use prima-facie (making works available to the print-disabled).

A finding of fair use in ReDigi may generically support the interests of libraries (or it may not), but it seems a high price to pay to allow a harmful, for-profit company to vitiate fundamental copyright protections. As implied, this paves the way for a massive organization like Amazon to decimate what remains of the primary market for sales of creative works.  I believe these matters should be viewed separately, with libraries and universities pursuing their own interests in context to copyright law rather than riding the coattails of predatory and opportunistic business ventures.

*Nothing personal, Meat Loaf. First album that came to mind.

This is no time to be devaluing creators.

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America
From Leaves of Grass by Walt Whitman

Centre of equal daughters, equal sons, 
All, all alike endear’d, grown, ungrown, young or old,
Strong, ample, fair, enduring, capable, rich, 
Perennial with the Earth, with Freedom, Law and Love,
A grand, sane, towering, seated Mother,
Chair’d in the adamant of Time.

It took nearly 100 years after the Revolution for the American creative voice to come into its own. In 1844, Emerson wrote an essay calling for a poet to emerge and give voice to the “nation yet unsung.”  It was Walt Whitman who responded with his self-published Leaves of Grass in 1855. Still, America being the nation it is, it makes sense that the creative voice would really develop with the industrial transformations that occurred at the turn of the 20th century.

With the invention of machines, from piano scrolls, to motion pictures, to radio and television, American output of culture steadily became more than entertainment; it became our identity.  Isn’t it interesting that in the same year a guy like Trump wins the presidency that it was Bob Dylan who won a Nobel Prize?  This bipolar tableau is a familiar theme for us Americans:  great on intention, a little iffy on execution. Hope and disappointment followed by more hope.  And in the darkest times, the artists are often the stewards of hope—our better angels patiently trying to lead us away from our capacity for brutal intolerance.

Coincidentally, I happened to see the film Trumbo last week after wanting to do so since it was released this time last year.  It really is a very solid little film, the relevance of which increased by orders of magnitude with the results of yesterday’s election.

For those who are not familiar, this multi-award-nominated biopic starring Bryan Cranston dramatizes the struggle and triumph of Dalton Trumbo, the screenwriter who was the most prominent of the Hollywood 10 blacklisted by the House Un-American Activities Committee.  After refusing to name names, or even answer questions, Trumbo was sent to prison for contempt of Congress and then officially barred from working at the only profession he had to support his family.

This disenfranchisement from the opportunity to work wiped out many Americans who were blacklisted, but Trumbo was comparatively lucky because he was so damn good that there were people willing to hire him to write screenplays under various pseudonyms.  His writing even received two Academy Awards he could not publicly claim. Above all, the Blacklist took a toll on the Trumbo family, which is very poignantly portrayed in the film.

I have asserted in other posts that it is the middle class creator, who is suffering in the current market.  And although we cannot wholly blame mass infringement (i.e. digital piracy) for the market we have, the free-culture movement certainly exacerbated the problem.  For instance, the movie Trumbo cost a modest $15 million to produce, a budget zone that I will argue is ideal for small, character-driven movies of this nature.  It’s enough money to properly pay people to work on the project but not so much money that the whole enterprise must involve layers of corporate suits with responsibility for a  $100 million investment.

That there were not at least two million viewers in America who went to see Trumbo in the theater may be answered by any number of factors, including over-saturation of choices in the market, limited distribution and marketing options, an unwillingness to engage with a painful subject like the Blacklist, or a simple trend away from theaters.  Whatever the factors, new distribution models, along with any changes to copyright law, must find a way to support this kind of mid-range project if we are to keep alive expressive works that demand engagement with serious subject matter.  The same is true for the middle-class novelist, composer, performer, photographer, or journalist. Economic power is power. This is no time to be devaluing creators.

Sci-Fi Film Written by AI is Still Fundamentally Human

Image by Pond 5
Image by Pond 5

Back in June, ArsTechnica hosted the online debut of a short film called Sunspring. Directed by Oscar Sharp and featuring the actors Elizabeth Gray, Humphrey Ker, and Thomas Middleitch, the film was made for the Sci-Fi London film festival according to guidelines for the 48-Hour Film Challenge, and it placed in the top ten out of hundreds of entries.  What is most distinctive about Sunspring, though, is its screenwriter Benjamin. No last name.  At least not one he’s told anyone yet.  You see, Benjamin is an AI.

Writer Analee Newitz describes Sunspring as the product of Sharp’s own fascination with artificial intelligence, which led to his friendship and collaboration at NYU with researcher Ross Goodwin. Listed in the film’s credits as Writer of Writer, Goodwin is the chief architect of the AI—an LSTM recurrent neural network—that would eventually name itself Benjamin. “To train Benjamin, Goodwin fed the AI with a corpus of dozens of sci-fi screenplays he found online—mostly movies from the 1980s and 90s. Benjamin dissected them down to the letter, learning to predict which letters tended to follow each other and from there which words and phrases tended to occur together,” writes Newitz.  The whole process itself is very interesting, and I recommend reading her article to learn more.

The finished film is definitely engaging, though I would not personally subscribe to the descriptions hilarious and intense as stated in Newitz’s headline. But to each his own, and headlines are headlines.  What Sunspring emphasizes for me, of course, is not a contemplation of machine intelligence but the significance of human interpretation. Benjamin’s absurdist script is a list of non-sequiturs, both in dialogue and stage direction, making the film project an experiment that almost asks the question, “Can we make a watchable movie based on the screenplay of a madman?”  The answer is of course you can.  Because cinema is very much an interpretive medium—both for makers and viewers. We can’t help but interpret; it’s what humans do.

The distinction between Sunspring and the oeuvre of human-crafted, experimental, non-narrative cinema—sometimes comprising stream-of-consciousness writing akin to Benjamin’s composition of algorithmic probability—is subtle to the point of nitpicky. Sunspring is odd, yes, but barely so if one is familiar with a film like Daisies or Hallelujah the Hills or the works of David Lynch.  The difference, of course, is that Sunspring’s absurdity—at least at the script stage—is accidental while these other works are not. Having said that, though, artists do make instinctive choices all the time that defy literal analysis, and audiences make poignant meaning from of these expressions that were never intended or even considered by their authors.

Sunspring’s script is humorously absurdist, though presumably not in a manner of which its author could possibly be aware.  The experience of watching the finished product shares strands of comedic DNA with the same mechanism that makes the Bad Lip Reading series work—because it’s funny when a real person or a character says something absurd in an earnest manner.  When BLR has Mitt Romney on the 2012 campaign trail say to a supporter “Thank you for the bench,” the same comedy chromosomes are at work as when Sunspring’s Humphrey Ker says, “We’re going to see the money.”  Benjamin has no idea why these things are funny, but they are funny in a non-literal way that is indisputably human.

Sunspring may represent a baby step toward the expectation that an AI will inevitably write a traditional, narrative screenplay for a major motion picture.  As I wrote in a very early post, a comparison between human-only, formulaic script development and machine-made or assisted, formulaic script development may prove to be indistinguishable.  Instead of leading down that path, however, Sunspring reminds us that cinema is often most compelling when convention and formula are broken.  And giving the responsibility to an AI of writing the blueprint for a film is certainly one way to achieve broken conventions—not unlike the artist who might experiment with narcotics to break down barriers to his or her subconscious.  Naturally, the more an AI resembles or reflects us, the more we assume its destiny is to replace us.  This is always the two-part conversation, right? There’s the gadget question that asks what an AI can accomplish, but there’s also the existential question that asks at what point we can say the AI has an identity, which is really a reflexive inquiry about our own existence.

So, here’s a hall-of-mirrors thought exercise:  might a more advanced AI than Benjamin have written a very different screenplay for the film The Enigma Code about the life and work of Alan Turing?  Personally, I like certain things about that film but was ultimately disappointed because I felt the work neglected an opportunity to explore the narrative in which the father of AI—the inventor of the Turing Test to determine the “identity” of the machine—was a man who literally had to pretend to be someone he was not.

So, if Benjamin’s great-grandson were the co-writer of a biopic about Alan Turing, might “he” bring a unique empathy for Turing’s duality given the AI’s own centaur-like existence?  And if so, wouldn’t we have to call that writing?  I think we would. On the other hand, absent the capacity for empathy or the existential question, the script is just barely structured words on a page that, as in Sunspring, only humans can interpret has having any meaning at all.