Category: Law & Policy

Piracy on Legal Platforms is Still Killing Creative Careers

Once again, the question arises whether there is any hope of addressing mass online copyright infringement on otherwise legal platforms?  It’s an exhausting problem, more than two decades old, and it isn’t getting better. A recent article by Annie Levin for Observer describes a new campaign by Music Workers Alliance (MWA), in which she sums up the heart of the problem thus:

Because of sites like YouTube, where all music can be accessed for free, streaming services like Spotify can get away with paying musicians a starvation average wage of $0.0038 per stream. A musician must have their song streamed almost half a million times a month to make minimum wage. Far from making a profit, musicians often end up in debt after making an album.   

As the article describes, MWA is focused on lobbying for changes to Section 512 of the DMCA, which shields online platforms from liability for copyright infringement committed by their users. But with regard to major platforms like YouTube, Meta’s properties, and Twitter, it is hard to wonder if we are not past the point of seeking meaningful amendment of the DMCA to better support smaller creators. As noted in my recent post during Fair Use Week, there is significant evidence suggesting that the major platforms are not in compliance with DMCA §512 anyway.

If that is the case, what can legislative reform accomplish? §512 is a voluntary provision under which compliance provides a “safe harbor” liability shield against litigation. In order to prove non-compliance, some entity would have to sue, for instance, YouTube, and spend the next decade or more in a fight with Google’s tobacco-industry scale legal counsel. And ain’t nobody got the resources for that. Thus, if the actual litigation shield today is that YouTube et al are simply too big to sue, then §512 is little more than enforcement theater, and amending it could be little more than legislative theater—at least as a means to address chronic infringement on the biggest platforms.

Then There’s the Standard Technical Measures Debate

On a related topic, the U.S. Copyright Office, in late December, sought public comments regarding the agency’s future consultation for the development of more robust Standard Technical Measures (STM) to identify and mitigate infringing uses of works on legal platforms. Under DMCA §512(i), Congress intended that OSPs and copyright owners would collaborate to develop STM, and at the time the DMCA was written, it was the OSPs who promoted the efficacy of STM as a basis for establishing the “safe harbor” provisions in the first place. But as all creators are painfully aware, in the 24 years since the law was passed, collaboration to achieve the Standard in STM has never happened.

Instead, a hodgepodge of technical measures are used, several of these developed by the OSPs themselves to address infringement only insofar as it serves the platform’s interests. For instance, as the members of MWA are well aware, YouTube’s ContentID system is provided to major labels and sound recordings made by megastars but is not available to many thousands of other owners of music rights—even works produced by fairly well-known composers and songwriters. As the STM comments submitted to the USCO by Copyright Alliance state:

… these technologies are usually not voluntarily made available to all types of copyright owners and OSPs have refused to come to the table with other stakeholders to have them formally adopted as widely recognized standards under section 512(i). This has led to a lack of uniformity among and access to existing technical measures that makes it difficult for those copyright owners who do not have access to combat infringement. On the other hand, OSPs prefer the status quo because it allows them to avoid adopting and implementing standard technologies.

Copyright owners would like to see the Copyright Office play a more integrated, regulatory role to achieve standardization of technical measures to better protect the works of a much broader spectrum of copyright owners. Meanwhile, the Electronic Frontier Foundation and similar organizations cite flaws in existing technical measures as a basis to argue against any expansion of these technologies. “Despite years of financial and technical investment, filtering technologies continue to do a poor job of sorting legal expression from infringement,” state the comments submitted by EFF to the Copyright Office. More specifically, the comments state the following:

The core problem is this:  distinguishing lawful from unlawful uses often requires context. For example, the “amount and substantiality” factor in fair use analysis depends on the purpose of the use. So while the use may be a few seconds, as for some kind of music criticism, it can also be the whole piece, such as in a music parody. Humans can flag these differences, automated systems cannot.

There is a measure of truth in this refrain, which is played every time the topic of STM is on the table. But its relevance should be considered in terms of evidence rather than theoretical debates. At internet scale, with infringements occurring in the tens of millions every month, and Big Tech still saying, “We can’t police it all,” I think the fair question asks why creators like those in MWA should continue to bear the cost of allowing the perfect to be the enemy of the good?

If the argument is that the good (i.e. better STM) can never be achieved, then the EFF and their fellowship should be required to cite more than anecdotal evidence of potentially harmful error. Because after twenty years, the system in place has a 100% failure rate for many stakeholders on the enforcement side of the copyright equation. That we should continue to allow smaller creators to watch their careers dissolve simply because STM will produce some error is an immoral argument for the status quo. And when that argument is paired with the fact that the major OSPs are now barely incentivized by the DMCA liability shield, the resulting “wage theft” described in Levin’s article is downright criminal.

Decision in Unicolors v. H&M an Important Win for Creators

Justice Breyer, in the waning days of his tenure, wrote an opinion last week that will be of significant help to copyright owners. Historically a critic of copyright, it was Breyer who wrote the convoluted majority opinion in Google v. Oracle, which elided a core copyrightability question presented (the protection of APIs) by shoehorning the question into the second prong of a fair use analysis. But in Unicolors v. H&M, Breyer wrote the 6-3 opinion upholding a basic principle of justice and common sense—namely, that innocent, administrative mistakes should not void the ability to enforce one’s copyright rights.

For background, designer Unicolors sued retailer H&M for infringement of several of its protected textile designs. Unicolors prevailed in district court, but the Ninth Circuit Court of Appeals reversed, siding with H&M’s argument that Unicolors’s copyright registration was invalid because it contained inaccurate information—specifically a mix of “published” and “unpublished” works as a group of “unpublished” works.

Under §411 of the copyright law, an applicant who knowingly provides inaccurate information on an application may risk having that registration invalidated in the course of a lawsuit. But the statute also contains a safe harbor, expressing Congress’s understanding that non-expert applicants would make innocent errors and should not have their registrations invalidated as a result. To complicate matters, the Ninth Circuit “determined that it did not matter whether Unicolors was aware that it had failed to satisfy the single unit publication requirement, because the safe harbor excuses only good-faith mistakes of fact, not law,” states the SCOTUS opinion.

The reasons the Ninth Circuit’s finding was vexing is twofold. First, the meaning of “published” under the copyright law remains one of the more confusing definitions for many attorneys, let alone laymen authors of works. Second, even if the layman applicant is confident he understands the definition of “published,” is a statement about the publication status one of fact or law, as a layman would understand it? And all this for a purely administrative function at the Copyright Office. Fortunately, the SCOTUS opinion last week held that “411(b) does not distinguish between a mistake of law and a mistake of fact; lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration under §411(b)(1)(A)’s safe harbor.”

As stated at oral arguments by counsel for Unicolors, it was unreasonable to allege that the company had “knowingly” provided inaccurate information to the Copyright Office just to save $65 for an additional registration fee. But for the independent creator, like the photographer who makes an average $30,000/year for her photo work, those fees add up, and the ability to register a group of images on a single application makes a difference. And this same class of creators is even more likely than a big business to commit errors of law or fact. Consequently, the SCOTUS ruling in Unicolors provides significant relief to the same creators who are already at a disadvantage when enforcing their copyright rights.

One could delve a little deeper into this opinion (and the dissent) to unpack the distinctions among “actual knowledge,” “constructive knowledge,” and “intent to defraud,” but that’s an unnecessary slog. More importantly, these nuanced terms of art among legal professionals, in this case, amount to variations on the common understanding of lie versus mistake for us mortals. And the very mortal author, artist, or creator seeking to protect her work is lucky just to understand the basics of registration with the U.S. Copyright Office. (Is a play a “literary work” or a “work of the performing arts” and is it “published” if it has been performed on stage?). So, yes, the most liberal interpretation of the statutory safe harbor in the registration process is the only one which achieves both reason and justice.

Podcast: Talking NFTs and Grift with Neil Turkewitz & David Lowery

In this episode, I talk to artists’ rights activists Neil Turkewitz and David Lowery about the scope and nature of fraud in the NFT trade–and why NFTs are yet another false promise to help independent artists in the digital age. 

Read Neil Turkewitz’s interview with artist bor, a member of the activist group @NFTTheft, and read his follow-up piece about the scope of fraud on the site OpenSea.

Read David Lowery’s post about the HitPiece NFT ripoff. 

Read Aaron Moss’s post about HitPiece at CopyrightLately.

Check out Molly White’s blog Web3 is going just great.

And because it came up in discussion, one Cambridge University study finds that mining Bitcoin uses 121.36 terrawatt-hours per year–or more than the nation of Argentina.

Jonathan Mann weighs in.

Photo source by: inmicco