Category: Law & Policy

Sarah Jeong Pitches Copyright Conspiracy Thriller

In what sounds like an homage to Tom Clancy, Sarah Jeong, a contributing editor to Motherboard, presents us with a cautionary action thriller in which the Chinese government could theoretically disappear one of the most famous and politically significant photographs ever taken. And all because of American copyright law.  You know the photo. It’s the image that comes immediately to mind when you think of the 1989 Tiananmen Square protest—the still-unidentified young man who stood in front of a column of four Peoples Liberation Army tanks, taken by AP photographer Jeff Widener.

In her recent editorial, Jeong speculates that a Chinese company called Visual China Group may now own the copyright on the iconic image as the result of its purchase of a collection of works that had belonged to Bill Gates.  Jeong states that she does not know if the Widener photo is among the works purchased—there are other “Tank Man” images—and she further mentions that VCG has entered into a licensing partnership with US-based Getty Images.  Nevertheless, Jeong insists that her hypothetical censorship scenario is “not entirely implausible”, citing unpredictability of the Chinese government and proposing a scenario in which the photo may be widely removed from the Internet by means of DMCA takedown procedures.  In asserting that this already multi-hypothetical circumstance would be entirely the fault of American copyright law, the deus ex machina in Jeong’s plot hinges on the following supposition:

“As owners of the copyright to the photo, Visual China Group could easily launch a massive censorship campaign across the internet. The group only needs to send a notice under the DMCA to upstream service providers that host the Tank Man photo—Google, WordPress, Amazon Web Services, Wikimedia, Facebook. If a DMCA notice is valid, a service is required by the law to take down infringing content—or else it can become liable for copyright infringement.”

Of course, nothing she describes reflects an accurate portrayal of how DMCA works, even if Chinese authorities did currently have their hooks into this particular photo.  As rights holders know all too well, an individual notice must be sent in regard to each alleged infringement.  One may not simply send a blanket notice to WordPress and say, “Take this off every WP blog.”  Then, as explained in considerable detail in my last post, the counter notice is still the final word under DMCA provisions, after which the rights holder must litigate in order to pursue removal.  But apparently undaunted by her basic misunderstanding of this aspect of copyright law, Jeong presses on with the following:

“Although fair use could cover use of the photo, thus giving a service provider an excuse not to honor the DMCA notice, that’s by no means a certain defense. See, for example, Fox News’ legal troubles over a copyrighted photograph of firefighters on September 11th—although the news organization cited fair use, a judge denied its motion for summary judgment on the issue, and Fox News ultimately settled the issue out of court.”

It’s a little hard to tell if Ms. Jeong is writing carelessly here or simply doesn’t understand the safe harbor provisions in the DMCA, but nobody should be confused into thinking that it would be the OSPs like Google, WordPress, et al who would be asserting any kind of fair use defense in a theoretical infringement claim of this nature. It’s the individual uploader of the material who is the actual recipient of a takedown request processed through the OSP, and it is he or she who may decide to argue that the use is non-infringing.  The safe harbor shielding OSPs is predicated on the idea that they don’t see nothin’, they don’t know nothin’, and they don’t say nothin’ ‘bout no infringements by its users.

To make matters…worse?  Stranger? Sillier?  I don’t know.  Jeong randomly points to a case in which Fox News’s motion for summary judgment based on a weak fair use claim was appropriately rejected by a district judge; and she cites the example as if this one case is evidence that fair use defenses just don’t work.  Well, tell that to the same Fox News, which has thus far lost to TVEyes on the latter’s somewhat questionable fair use defense.  But as long as Jeong is already wet, she dives all the way into the deep end with this inscrutable speculation:

Journalistic usage of the Tank Man’s photos—which persist in newsworthiness and historical value for the public—should be obviously covered under fair use, but the actual copyright analysis isn’t much different from the Fox News lawsuit. And if that’s the case, perhaps copyright law is broken.

It is possible, of course, that Ms. Jeong doesn’t realize that news networks, photojournalists, reporters, etc. are all copyright holders and that these folks do not make a habit of poaching one another’s intellectual property on the grounds that they are doing the noble work of reporting the news. (This would be rather circular logic for infringement of journalism.)  But for sure, she either did not read—or does not remotely understand—the facts in the Fox News case to which she refers because the network’s fair use defense in that instance hinged on its argument that its use of North Jersey Media Group’s image on its Facebook page was “transformative” simply because it was hosted on a social media platform.

Perhaps one day a court will agree with a TV network or General Motors or Pfizer that its Facebook page is indeed a little haven of fair use, at which point we can ball up the fair use doctrine and toss it in the fire.  But for now, it is nearly impossible to imagine whence Jeong conjures the idea that her tens of thousands of hypothetical conflicts over the Widener image might each resemble the “analysis” applied in this one Fox News case. In fact, I’m not sure the district judge analyzed the fair use argument all that carefully so much as he just summarily called “bullshit” on it.

Naturally, the subplot in this Sino-censorship-via-American-copyright story is the implication that passage of the Trans Pacific Partnership will make matters worse by way of exporting DMCA-like procedures to US trading partners.  But even if Jeong’s censorship concerns were well-founded, what they might have to do with this trade deal is a mystery.  As far as China goes, when that government wants to censor something, I think they just censor it the old fashioned way.  And with regard to the US, nothing in the TPP would make her already exaggerated scenario work any better because the trade deal doesn’t implicate any change to domestic IP law.  But the real irony I just can’t let go is that while Jeong generalizes her concern that the “American government is exporting strict copyright law” to other countries, she may not be aware that it is Google and other major OSPs that have pushed as hard as anyone to export DMCA notice-and-takedown procedures abroad because its safe harbor provisions serve their interests.  To quote from an Internet Association statement on Tumblr,  “The Internet Association continues to push for strong policies such as DMCA to be incorporated explicitly in the TPP treaty itself to ensure a strong, robust Internet ecosystem.”

Finally, I think Ms. Jeong and her readers might want to breathe into a bag for a while before getting too stressed about China making its human rights record disappear into Santayana’s axiom by way of US copyright law.  I remember where I was at that time in 1989; I was watching CNN broadcasting its very dramatic video footage of this brave young man facing down the tanks—footage CNN still owns and that can still be licensed for educational and other uses.  This is to say nothing of the myriad uses of the Widener photo that no entity is likely to stuff back into the bottle—let alone stifle legitimate fair uses.

Above all, this chronic hyperventilating over the prospect that copyright makes things disappear is not only carelessly reasoned but also places way too much value on social media and other ephemeral Web platforms as repositories of important information.  As Jeong herself proves with this particular article, anyone can put anything on the Internet without the burden of even a good faith effort to be accurate.  And this is probably a more effective a way to burn the proverbial history books than anyone’s attempt at censorship.

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.

Industry Voices Stick to Playbook Talking DMCA

Remember when I posted A Guide to Critiquing Copyright in the Digital Age?  Quite a few people read it and seemed to enjoy it, which is cool.  And most recently, it seems that Joshua Lamel, executive director at Re:Create, wrote an article for the Huffington Post about prospective revision to the DMCA, in which he appears to have followed this guide fairly closely.  In response, let’s see how he did based on the recommended guidelines …

1. Remind readers how cool it was when we killed SOPA.

Check! Lamel scores 100% when he writes in his lead:

“Defeating the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) – products of the entertainment industry’s intense and well-financed lobbying campaign – was a watershed victory for consumers, free speech and technology innovation. But the fight is not yet over.”

2. Remind readers that all remedies to infringement are basically SOPA.

Kudos!  Lamel is into his third paragraph of an article that is supposedly about potential revision to the DMCA, but notice that he is still aligning the discussion with SOPA when he writes:

“After failing to persuade Congress to pass SOPA and PIPA, they are now targeting different entities and state legislatures, government agencies, the courts, ICANN, the European Union and international treaties – these are just some of their chosen venues. But neither their misguided demands nor the potentially disastrous consequences have changed.”

Lamel gets high marks here for remaining entirely detached from reality, glossing over basic truths, like the fact that rights holders are just beginning to ask lawmakers to review DMCA safe harbor provisions. Or the fact that safe harbors have been consistently abused by many of the largest ISPs and platforms, getting away with tens of millions of monetized infringements. Lamel successfully avoids any acknowledgement that the outdated DMCA problem is substantial; that the conversation is in early stages; that there are no specific remedy proposals on the table; and—this is really why his grade is so high–as an attorney, Lamel knows full well that the mechanisms in DMCA have nothing to do with SOPA.  So, he scores another 100% for meeting the goals of Guideline #2.

3. Remind readers that the copyright industries hate the future.

Remember:  the purpose of this guideline is to help the reader avoid considering specifics and reduce the conversation to good guys and bad guys. Lamel’s work here is solid but I feel could have been stronger.  While his article does contain implications that the entertainment industry is willing to stifle the potential of the Internet, I’m going to have to give him an 85% for failing to suggest that the entertainment industry is eager to stifle the potential of the Internet.  This isn’t bad …

“The implementation of excessive and over-broad intellectual property protection measures would strangle the freedom and innovation essential to growth of the Internet.”

But after four years of repeating the theme “strangling the growth of the Internet”, it just doesn’t make the blood boil like it did in 2012.  Readers may be less susceptible to this kind of vague, scare-mongering gibberish. In particular, anyone who might be following the real story may even notice that many of the remedies people keep saying will stifle speech and innovation have actually been applied repeatedly in the U.S. and abroad without stifling speech or innovation.  Lamel did good work here, but it’s a little mailed in.

4. Make some crazy shit up.

In scoring Lamel on this guideline, however, I have to give extra credit.  It’s honestly hard to pick which crazy shit to highlight as his best work.  It could be conflating the US, Europe, and the DMCA in the same paragraph despite the fact that Europe doesn’t have the DMCA.  It might be the specifically burdensome mechanisms he alludes to despite the absence of even a single word’s worth of proposed revision to the existing law.  But I think the most impressive made up crazy shit is this:

Imagine a world where just the mere allegation of infringement would permanently keep that content down. This would have huge implications for everyone when it comes to sharing a video on Facebook or quoting song lyrics. That’s because social media networks would be forced to suppress user generated content, as they would not know if it was licensed or not. Parents can forget posting videos of their kids dancing to music and candidates would not be able to post campaign speeches because of the music that plays in the background. Remix culture and fan fiction would likely disappear from our creative discourse. Live video streaming sites would cease to exist. Notice and staydown might seem innocuous, but in reality it is content filtering without due process.

High marks indeed. Not only does Lamel cite a whole range of ordinary, social media activity that would be entirely unaffected by a prospective tweak to Section 512 of the DMCA, not only does he ignore the fact that the entertainment industry continues to forge new deals to support remix culture and fan fiction, etc., but he leaps all the way over the candlestick to insist that a revision to DMCA (which has not even been substantively discussed) will automatically remove due process from the law as it currently stands. In particular, this assertion can help the reader ignore the fact the requirements in question in the DMCA are more akin to voluntary conditions that are either met or not met prior to actual legal proceedings.  So, this is some excellent made up crazy shit, and I give Lamel an extra fifty points for a score of 150% on meeting the goals of this guideline.

5. Write a misleading headline.

This is a tough one to score. Technically, both the headline and the article are grossly misleading, and the headline will garner Likes and shares and retweets by users who won’t bother to read the article.  So, all of those are points in Lamel’s favor.  On the other hand, the promise of the headline is fulfilled by the article, which is a departure from the guideline recommendations to be even more misleading.  It feels like an 80%, giving Lamel a final grade of 103% for adhering to the Guidelines to Critiquing Copyright in the Digital Age.

But in all seriousness …

Both the takedown procedures and the safe harbor provisions in the DMCA are mechanisms of great importance to ISPs, copyright holders, and general users.  And there is no straight line dividing the needs and concerns of the various parties into side a or b.  Many copyright holders have a strong interest in safe harbors, yet the tens of millions of takedown notices sent monthly by some rights holders–in the chronic game of Whack-a-Mole–over large-scale infringement was never envisioned when the DMCA was passed in 1998.

Any proposed revision to DMCA will seek the same balance as was initially sought in the law; it will contain language that can be debated and discussed; and proposed remedies may or may not include the kind of algorithmic “filtering” alluded to by Lamel and others.  When we look at cases like BMG V COX, the Grooveshark case, and this recently announced suit by photographer Jen Reilly against Twitter, we see that a chronic point of contention among rights holders is that ISPs push the limits of good faith with regard to the safe-harbor conditions as written in the DMCA today.  Hence, it is feasible that these behaviors can be remedied without requiring any new technological paradigm. To say otherwise is jumping to very early conclusions while ignoring the real problem.

If and when DMCA revision becomes truly active, we can expect this same kind of editorial from the same voices; but at this point in the discussion, the fact that Re:Create and EFF are already  leading with straw man arguments is typical of the kind of “cooperation” rights holders are used to from many of the companies these organizations represent.