Category: Art

MPAA Forges Voluntary Anti-Piracy Agreement with Donuts

We’re about to start seeing a lot more diversity in web names.  With its slogan “welcome to the not com revolution”, the Bellevue, Washington based Donuts is the largest provider of new domain name registrations with uniqe extensions that offer site owners more options to express their identities via their URLs.  For instance, the company has over 67,000 registrants with the extension .GURU; and as described on their website, Super Bowl 50 was a “coming out party” of sorts when viewers were directed to visit GodsofEgypt.MOVIE to learn more about the release of this major motion picture.

This morning, Donuts has also placed itself at the forefront of OSPs taking voluntary measures to mitigate large-scale online piracy.  In a joint announcement with MPAA, the two organizations have forged a voluntary agreement, which outlines specific conditions under which the MPAA will be treated as a “Trusted Notifier” when reporting sites registered with Donuts that are engaged in large-scale piracy.  Conditions of the agreement place the burden on the Motion Picture Association to provide clear evidence of large-scale piracy of the works it is ahtorized to represent; and it must make a good faith effort to make direct contact with the site registrant prior to notifying Donuts.  Once presented with a referral, Donuts maintains the right to act at its own discretion in determining whether or not the site registrant is “clearly devoted to clear and pervasive copyright infringement” in violation of their Acceptable Use and Anti-Abuse Policy, in which case it may put the domain on hold or suspend it.

Both copyright interests and digital rights activists should applaud this voluntary measure, which could serve as a model for other rights holding entities to adopt similar agreements with major OSPs.  In principle, these private-sector agreements provide tangible options for mitigation of large-scale piracy, but their voluntary nature and structure should mute the usual hew and cry of “slippery slope to censorship” that tends to come with legislative proposals. Absent the opportunity to invoke the boogeyman of “government”, it would seem that any complainants about voluntary measures of this nature will have their rationales reduced to just admitting that they like piracy. At least that would restore some refreshing honesty to the discussion.

Ultimately, this type of voluntary measure is a positive step forward for consumers. The Web has grown fast, and the major designers of our experiences and engagement with digital life have, in a a matter of years, attained the kind of market dominance that historically takes decades.  And that’s fine.  But while scaling rapidly in a free-for-all, Wild West environment is exciting, makes happy shareholders, and yields all manner of free apps and platforms for consumers, we are also lately beginning to recognize significant weaknesses that come with adopting a purely laissez-fair approach to the digital market.

When search results lead users to a nest of clickbait and malware; when advertisers lose value in the digital ecosystem; when seeking information becomes algorithmic manipulation; and when digital predators can exploit the environment to do anything from wasting your time to invading your privacy to taking your money, then the Web fails to be what we need it to be.  OSPs, major businesses, consumers, and start-up entrepreneurs all have a stake in a sustainable digital market; and voluntary measures are an expression of that mutual interest.

On the Serbian Proposal to Abolish Photography Copyright 

Last week, the Serbian Parliament unanimously voted down a proposal to abolish copyright protection in that country for what it called “routinely made” digital photography. In fact, according to the Facebook page Protect Photographers Copyright, even the individual member of Serbia’s ruling Progressive Party, Dusica Stojakovic, who introduced the measure, did not vote for it herself.  This was the second time the proposal to abolish these rights has come up for a vote and was defeated; but professional photographers, especially photojournalists, say the idea is not dead and the fight is not over.

The strangeness of this proposal, particularly coming from the party leading Serbia’s fledgling democracy, is a bit hard to fathom.  After all, the potential of disenfranchising professional photojournalists while leading democratic reform is entirely inconsistent with the stated agenda of the party—not to mention the history of democratic reform.  And in fact, this story by Bogdan Ivanisevic, writing for Balkan Insight, states:

“Abolition of copyright in photographs tout court is not what the ruling Serbian Progressive Party and its partners ever intended.

What they aimed for was to abolish copyright for a subgroup of photographs, those “routinely created” as the proposed text phrased it.

That said, had the ruling majority adopted the text as formulated by parliament’s legal committee, it would have been troubling.”

So, without being Belgrade insiders, we might interpret these events as an attempt to fashion a legal distinction between the professional class of photos and the millions of selfies and snapshots uploaded to the Internet.  And presumably, the professional photographers who have protested this measure agree with Ivanisevic in identifying as “troubling” the overly broad language in the party’s measure, which is stated thus:

“Every routinely made photograph, which appears and is taken in electronic form, regardless of whether it is the true original creation of an author, will cease to enjoy protection as the creation of an author.”

Copyright laws in Europe vary with regard to granting protection to “non-original” photographs, which is to say the courts have differing means of interpreting “originality” in a legal sense. But it is beyond problematic to attempt to make these distinctions at the legislative level. The “amateur” is more than capable of taking a highly original photograph; she may turn professional or take a handful of pictures of great artistic value without necessarily considering herself a “photographer”.  Are the early snapshots of a great artist of no value because they’re not his “serious” works?  What about iconic and invaluable serendipity like the 8mm film of John F. Kennedy’s assassination captured by a tourist named Abraham Zapruder?

Copyright skeptics will answer many of these questions with abolishment or abridgment of copyright protection for all images.  This seems particularly true today in reaction to the ubiquity of images captured and uploaded every second to various web platforms; and this thinking appears to be a factor in Serbia’s Progressive Party as well. But if we look at the history of photography in the US, as well as about 150 years worth of legal theory on the copyrightability of the photograph, the increase in volume of what we might call “casually made” images does not really change the calculus all that much.  In fact, while the US has a very low standard of “originality” in copyright, both the theory behind that rationale and the practical applications of enforcement generally conform to common and reasonable distinctions between “original” and “non-original” photographs.

While it may seem to a casual observer that the question of copyright in the photograph is different today than in pre-Internet times, the truth is that both the theoretical and practical questions currently summon the same discussions as when the medium was first invented. It is common to say that photography—along with just about everything else—has been “democratized” by digital technology; and from this generalization comes the notion that it seems absurd to contemplate a copyright in every one of the billions of images that travel from smart phones to Web servers around the world every hour.  And as a matter of practical application, it is absurd to imagine a copyright in every one of these images, but it is also fortunately not necessary.

For starters, the process of making photos was democratized at least ninety years before the availability of the first personal computer. In 1888, the Eastman Dry Plate and Film Co. introduced the Kodak camera, which they advertised as “The only camera anybody can use without instructions.” And by the early 1970s, if you were me as a child stuck watching your grandfather’s vacation slides, you knew for certain that the Eastman/Kodak company had more than surpassed its goal of democratizing the photographic process. In fact, we can safely assume that, even by the 1950s, there must have been billions of images processed by millions of non-professional photographers all over the world. So, while it may be true that innovations like the smart phone have surely increased the number of images captured by every man, woman, child, and monkey, there was already a staggering volume of “amateur” photos in the world long before the inventors of Instagram were even born.

Moreover, the expansiveness of digital imaging can be somewhat exaggerated as a  justification for devaluing the photograph on principle, particularly when there is a corresponding disposability or invisibility that comes with digital diffusion of casually-made images.  The same technology that makes capture and upload so easy also makes the majority of these experiences fleeting for both makers and viewers. Still, what is unquestionably different today is the ability, in principle, for everyone’s proverbial grandfather to show his vacation photos to the entire world; but this fact alone does not inherently change the conversation about copyrights in photography from either a theoretical or a practical perspective.

The Copyrightability of the Photograph

Almost from the invention of the process, debate began among critics, connoisseurs, and artists as to whether the photograph was in any way a creatively expressive medium or merely a mechanical means for recording data.  And this dichotomy still manifests in the words of photo teachers everywhere, when they ask new students,  What makes a great photograph? It is not by coincidence that this same aesthetic discussion parallels the legal questions of copyrightability; and this is one reason why photography was so influential in the history of copyright law. For the first time, anybody with comparatively little training could make an image, and so grappling with the technology itself helped reshape copyright law for the modern age.  But it is also not farfetched to think that the copyright considerations themselves helped to shape the evolution of photography as well.

Loyola Law School professor Justin Hughes explores these ideas in detail in his paper The Photographer’s Copyright, published in 2012 in the Harvard Journal of Law & Technology.  He explains that from the time photographs were protected under copyright (1865 in the US), judges had to wrestle with more or less the same ideas, theories, and biases as art critics in order to consider what, if anything, makes one of these machine-made images an original work of authorship.

Today, with decades of tradition behind us, we generally recognize that a photograph can be either an expressive work or a mechanical record or both; but in early efforts to identify the hand of the author (i.e. what qualities make a photograph copyrightable), jurisprudence leaned first in the direction of giving weight to the photographer’s process and later in the direction of evaluating the end product, regardless of how the image was made.  The chronology of this thought process is due to the fact that the first case to come to the Supreme Court in 1884—which involved the infringement of a studio portrait of Oscar Wilde made by Napoleon Sarony—forced the Court to seriously consider the defendant’s argument that photographs should not be copyrightable at all. Thus, their analysis of the image known as Oscar Wilde No.18 focused on the specific choices made by Sarony in the studio in order to capture a brief moment of reality.

This identifying “originality” (in the legal sense) by examining the process of the photographer can be objectively expedient when the choices made by the author are readily apparent, as would be the case with a contemporary fashion photograph made with models, props, lighting effects, etc.  But this line of analysis becomes more problematic when considering a photograph of a documentary nature, like a landscape, street photograph, or the work of photojournalism—all examples in which the photographer cannot possibly control many of the elements that constitute the resulting image.  Furthermore, as Hughes discusses, these documentary images must also be compared and contrasted with photographs that are purely mechanical and/or made for the sole purpose of recording data—like surveillance imagery, mapping, or evidence.

For instance, what is the difference between the evidence-gathering photography of a police officer investigating a homicide in 1941 and one of the now-famous photographs taken by Wegee (Arthur Fellig) at the same crime scene? No doubt, many people can answer that question from an artistic perspective, but in reviewing the legal theory from the 1860s to the present, Hughes describes judicial views that sound not unlike those of the art or cultural critic. In other words, the features that make Wegee’s photo more expressive and more engaging than the photos taken by the detective also happen to make it more copyrightable. Hughes notes this subjectivity when he writes, “Where we think it is fair to offer legal protection, we will be more likely to find copyright sustaining originality.”

Hughes reports that in 1903, Justice Holmes introduced the notion of personality to the discussion in the case Bleistein v Donaldson Lithographing Co. This is the moment when copyright law becomes as universally available as photography itself.  Hughes writes, “Bleistein provided American law with an originality threshold low enough that all can enter, giving us a deeply egalitarian, democratic copyright law that has neither place nor need for the creative genius.”   From this notion comes the idea of “seepage”, which is used by copyright scholars to describe the notion that even when multiple individuals engage in the same creative action (e.g. tourists taking pictures of a national monument), that each individual cannot help but imbue her own images with her personality—that the individual’s character seeps into the work.

This low threshold of originality might appear to invite the aforementioned absurdity of billions of copyrights in billions of mediocre images, but not quite. Because concurrent with this egalitarian approach to originality for broad protection under copyright comes an equally thin patina of analysis as to precisely what may be copyrightable within a specific image, and in what contexts.  From the analyses applied in specific cases, we learn that there can be considerable similarity between two images, both of which can have a copyright, and neither of which necessarily infringes upon the other. These analyses can factor greatly in a specific case—particularly if it’s creator v creator—but for the broader question of copyrightability, it was first sufficient that the author asserted originality, and then after 1976, that photographs would be entitled to the same automatic copyright as all other works

This brings us to a practical reason why the Serbian proposal is so unnecessary—at least insofar as its Parliament might look to US copyright law for guidance–and this is the matter of registration.  Because while it is true that every US citizen who snaps a photo does have an automatic copyright in that image, this is functionally irrelevant in most cases unless the individual registers the image with the Copyright Office.  This is due to the financial realities of litigating an infringement claim in federal court.  If an image is registered, the rights holder may seek statutory damages for infringement, which is essential because proving actual damages from a use is a much more challenging legal argument to present.

So, unless the image owner has the resources to spend in an effort to prove actual damages in an infringement case—this by the way implies that photography is probably his/her profession—the inability to claim statutory damages (due to non-registration) is a barrier to engaging a litigator to pursue a case at all.  Hence, while there may be billions of non-professional images out there, even very good ones, there are likewise billions of reasons these will not be registered in jurisdictions in which an infringement claim is feasible.  Moreover, simply by choosing to upload personal pictures to certain platforms, the photographer cedes considerable—if not all—grounds for an ownership claim in the image as stated in some Terms of Service.  If anything, the new realities of the digital age ought to give “amateur” image makers a moment’s pause to consider the implications and rights associated with the photos they share rather than going the other direction of abandoning IP rights as obsolete.

Rather than rephrase the Serbian proposal—particularly if it is a reaction to digital ubiquity—the Progressive Party should abandon the idea that it is necessary, possible, or democratic to attempt to define at the legislative level “originality” in photographic works. The US has automatic copyrights, a low threshold of originality, trillions of “amateur” photographs, a vibrant professional, art, and journalism class of photographers; and our courts are not overrun with infringement cases in these works. For the sake of free expression, for journalism, and for economic development, the Serbian Parliament should affirm a copyright in all photographs and let their courts settle actual disputes.

Understanding DMCA with help from Michelle Shocked

It is a chronically repeated theme—and therefore a widely held misconception—that the DMCA is solely a mechanism for rights holders to unilaterally and unequivocally remove content from the Web “without due process.” In fact, this belief is so deeply ingrained that just citing the acronym by some journalists and bloggers is sufficient to denote censorship for many readers. We encounter language like censored by DMCA, speech chilled by DMCA, threatened with DMCA, and so on.  Unfortunately, this shorthand only perpetuates a general misunderstanding of what the DMCA is and how it works with regard to the remedies and counter remedies for alleged copyright infringements. As a result, critics who repeat this one-sided narrative can actually wind up frightening some of the very users and creators whose interests they claim to represent.

For starters, it should be understood that the process of sending notices or counter notices under DMCA is not a casual transaction for either sender or receiver.  Senders of takedown notices must declare under penalty of perjury that they are providing accurate information; that they are legally authorized to “act on behalf of the owner…”; and that they have “…a good faith belief that the use of the material is not authorized ….” Likewise, senders of counter notices, which are used to restore or retain contested material online, also must declare under penalty of perjury that they have “a good faith belief that the material was removed or disabled as the result of a mistake or misidentification .…” This can all be rather intimidating for both rights holders and for users of copyrighted material who don’t have access to legal departments—and who might even get all manner of bad advice from colleagues making unqualified assumptions about copyright. While the largest senders of DMCA takedown notices are, naturally, the corporate owners of thousands of works, the reason these entities are able to send out tens of millions of notices with a very small margin of error is that they do have legal departments dedicated to oversight and enforcement of their rights, and they do know what they’re doing.

But when an individual creator—whether amateur or professional—makes use of a work belonging to another individual creator, the possibility always exists that neither party quite knows where they stand legally, which can make DMCA appear rather confusing and spooky, depending on which end of a notice one happens to be on. This is one reason why some of the headline abuses of takedown procedure—the ones typically highlighted by copyright critics—can foster a general worry that DMCA is just a mechanism for censorship. But even in public statements and court filings by internet industry representatives, DMCA takedown abuse cases are cited in the hundreds—sometimes on a worldwide scale—relative to the 100-millionth-takedown-notice milestone, which Google alone reached in 2014. A ratio of less than 1%.

Still, among individuals and small entities, either a takedown notice or a counter-notice can be sent in error, even if the sender states he/she has made a good faith effort to understand the validity of a claim.  But the point I want to emphasize is that the general perception that a DMCA takedown notice is the final word (i.e. lacks due process) is actually a reversal of how the process works.  In fact, as I’ll expand upon with the anecdote to follow, it is the counter notice that is technically the final word within DMCA’s limited mechanisms. After that, if the copyright holder wants a file removed, and the uploader will not cooperate, the copyright holder’s only recourse is a court order pending litigation for copyright infringement presented to the ISP within 10 days of the filing of a counter notice.  So, it is not remotely accurate to describe DMCA as a tool for takedown without due process.  For a more detailed explanation of DMCA mechanisms, read Stephen Carlisle’s article from 2014.

How artist Michelle Shocked’s generosity is being abused by DMCA provisions. And why it matters.

A common category of video on YouTube is the musical cover.  People share these all the time, especially when the video features some adorable kid who’s killing it with her rendition of a popular song.  That most of these videos, which make use of copyrighted works, are not removed from YouTube may be attributed to one of three common factors:  1) that in 2013, YouTube entered into blanket licensing agreements with the major publishers on a vast library of popular music; or 2) that many rights holders of these works are somewhat ambivalent about these incidental uses and/or find the process of takedown too burdensome; or 3) that many rights holders actually enjoy these covers very much and are generally happy to see their work shared in this manner. When conflicts do arise, they tend to be fairly specific, pertaining to some distinct concern on the part of the independent creator who owns his/her copyrights and would, therefore, not be bound or covered by the aforementioned blanket license agreements.

One such artist is the singer/songwriter Michelle Shocked, who has been an adamant crusader on behalf of artists’ rights and is a regular follower of this blog. As serious as she is about protecting copyrights, she also happens to be totally cool with unlicensed YouTube video covers of her songs, as long as the user respects two simple conditions.  The first is that the video not be monetized with advertising because Shocked doesn’t want Google to earn revenue from her work without an agreement. In fact, because of her views on artists’ rights, she works to keep her own live and recorded performances off YouTube even though she is happy to let others publicly perform her songs on the platform.  The second condition is that Shocked prefers that her name not appear in the video file title, but rather in the description crediting her as songwriter/composer. The reasons for this are myriad with regard to maintaining some control over search results (and even monetization) of her name, but suffice to say, it’s her prerogative and an easy enough condition to respect.

So, in the utopian narrative of sharing and remixing and diffusion of culture and ideas—and all that feel-good stuff—Shocked’s two minor conditions for performing her songs without a license in YouTube videos seem both reasonable and entirely consistent with those high-minded aspirations of creativity in the digital-age people keep talking about. Fundamentally, she’s not asking for much effort beyond a little common courtesy, which one would think is also consistent with sharing and caring and so on. In fact, Shocked has had numerous cordial exchanges with online performers of her songs, thanking them for the cover but asking them politely to remove her name from the title. And until recently, all have been happy to comply, grateful to have a friendly exchange with the songwriter.

But this was not the case for one YouTuber, Steve Pierce, who uploaded a video of himself playing Shocked’s song “Memories of East Texas” and used her name in the main title of the video file.  As usual, her first response was to write Pierce, thank him for his “beautiful cover” of her song, and to ask that he kindly remove her name from the title and instead use it in the description.  After some time without a response from him, and seeing no change to the file name, Shocked sent a takedown notice using DMCA procedures and subsequently received notice from YouTube that Pierce filed a counter notice in which he stated his opinion that his video cover performance constitutes a “fair use.”  Now, we have a ballgame, and here’s why:*

In a hypothetical lawsuit, a court would almost certainly deny a fair use defense for an individual’s unlicensed video recording and public distribution of a cover song, as this would appear to effectively throw out the purpose of both the mechanical and public performance rights altogether. My point is not, however, to play amateur legal soothsayer about a hypothetical case but rather to note that Pierce’s invocation of the words “fair use”—for a use otherwise covered by a specific type of compulsory license—seems to be a common habit among non-attorneys of late. But “fair use” is not a magical incantation that will automatically ward off all infringement claims.  In reality, Pierce’s use is not “fair” but instead has been made conditionally available to him by permission of the author. And because he chooses to not respect one of those conditions, the point I’m stressing here is that Shocked is actually quite limited by the mechanisms in DMCA.  Her only recourse is to litigate or let it go.

Because Michelle Shocked owns all her copyrights and has no agreements with YouTube—and because Pierce’s fair use defense would very likely be denied—her claim should theoretically be quite solid.  But the merits of a hypothetical case are secondary to the fact that she never wanted to sue anybody in the first place.  It’s a pain in the butt and very expensive to sue people in federal court. Plus, she has no problem with the content of the video itself, only with the use of her name in the title. So, maybe you’re thinking, “Big deal. So he used her name. Let it go.” In practical terms, perhaps, but in principle not necessarily.

Shocked’s story provides an instructive example of the functional weakness in DMCA for the individual rights holder. And this is why it’s infuriating to independent creators in particular to hear the repeated theme that DMCA is just a big, digital eraser used to summarily remove content from the Web without recourse.  Exactly the opposite is true; DMCA is largely a voluntary mechanism in which the individual creator asks, “Please remove this,” and a perfectly legal response may be, “No. And you can sue me if you don’t like it.”

Moreover, under these circumstances, what is really stopping this user, and therefore YouTube, from ignoring Shocked’s first condition that videos of her works not be monetized by advertising?  Certainly nothing within the scope of the DMCA.  In theory, this would mean that Google could get away with generating revenue from this use despite the artist’s desire to generously share her work with people in a non-commercial context. This is a hypothetical projection in this case, of course, but not if we look more broadly at the ebb and flow of infringements on the YouTube platform over time.  In fact, Google’s monetizing the infringing material its users upload and re-upload is the crux of rights holders’ conflicts with that company; and the neutrality it asserts while earning billions of ad-revenue dollars is one reason many see flaws in the safe harbor provisions of DMCA.

Understanding what DMCA is and how it really works is important, if people really want to claim that they care about the artist and culture more than the big corporation.  In the end, Steve Pierce’s cover song will probably not be heard by millions—or even likely thousands—of listeners; and the video itself will remain one relatively innocuous clip in a sea of billions.  But if we multiply Michelle Shocked’s experience by thousands of independent, fledgling new artists out there, it’s not difficult to see how perpetuating the myth that DMCA skews in favor of rights holders can result in one or two dominant Internet platforms dictating terms to creators in the long run.

*Mr. Pierce’s name was originally misidentified as Martin DX1KAE, which is the type of guitar he’s playing and not his YouTube handle.  See comments from Mr. Pierce in response to this article.