Category: Law & Policy

Lemley Proposes Copyright Term Limit Disguised as Fair Use

Welcome to Professor Lemley’s Home for Wayward Works. Formerly known as the Asylum for Orphan Works, but we really prefer not to use the O-word as this connotes a state of abandonment and a feeling of being unwanted. Although we are certainly happy that the term Bastard Works was retired after 1912.

At PLHWW, we believe that every work deserves someone’s love, even if its parents no longer care to acknowledge it. Take a look around, and you will see a cheerful confederacy of the once forgotten and forlorn and, perhaps, you will recognize their true potential. It may be Season 1, Episode 12 of Mork & Mindy, “Mork’s First Christmas.” Or perhaps you will embrace Season 2, Episode 17 of What’s Happening!!, when The Doobie Brothers teach Rerun an important lesson about bootlegging music. Because our motto at Professor Lemley’s is Leave No Work Behind.

What was all that about?

Well, it seems Professor Mark A. Lemley (notable copyright skeptic) has advanced a new theory under which copyright law—specifically, the fair use doctrine—should be reimagined in order to rescue creative works that will otherwise go missing. “An unanticipated consequence of the move to streaming,” Lemley writes, “is that more and more content will effectively disappear from the public eye, at least legally.”

Despite being an avowed empiricist with regard to the nature of intellectual property, Lemley offers no solid evidence that works are “disappearing,” as he puts it, or quite demonstrates how we are “moving backward for the first time in 40 years.” Yet, undeterred by the lack of data to show us the vanishing works phenomenon, Lemley offers a solution to a problem that even he seems not quite sure truly exists. Despite some sweeping generalizations in his paper, Lemley appends several of his potentially more compelling examples with acknowledgements that they are likely rare circumstances. So, this reader struggles to understand whether he hopes to remedy a major trend or is responding to intermittent anomalies in the market.

For instance, one might assume that absent hard data, the anecdotal evidence would be compelling and on point. But Lemley’s lead-off example is the presently unavailable Spanish TV series El Ministerio del Tiempo. Previously licensed by Netflix, Lemley complains that “It’s not on television anymore, even in Spain. And it’s no longer available on Netflix, one of the many shows that is pulled off Netflix every month to make room for content with higher demand. Nor can you find it on Amazon, or Hulu, or any of the growing number of TV streaming sites.”

Now, if you’re tempted to say, So what? TV shows come and go all the time, you’re right. And Lemley does acknowledge that this is just business, that when an insufficient number of viewers watches a program, Netflix, or whoever, will probably not renew its license for that show. But with this example, Lemley hopes to tee up the problem, namely, the unavailability of El Ministerio based on an assumption that the rightsholder lacks either the opportunity or the desire to make it available under a legal licensing regime.

This circumstance, leaving interested viewers empty handed, Lemley proposes to remedy by having the owner forfeit its right of control under the fair use doctrine. He posits a reading of “transformativeness” under factor one to encompass just about any use that “benefits society” (as if that doctrine were not oozy enough in the courts). And under the fourth factor, Lemley asserts that if the copyright owner is no longer in the market, then of course market harm cannot occur. Okay, but what he is really proposing is that works simply fall out of copyright due to apparent disuse, which moots the fair use conversation altogether. Moreover, a number of problems leap to mind given Lemley’s focus on streaming, which largely means TV shows, movies, and music.

The thorniest issue is that filmed entertainment makes a poor example for Lemley’s hypothesis because most films and TV shows entail multiple subcontracts and licenses for limited uses of various creative works for a given project. The most obvious would be music synched with a film. Absent a new licensing agreement with a proper distributor, the owner of the film or TV series is not at liberty to simply make the material available, even if he wants to. The producer would be liable for distributing all the other contracted elements without consideration for its contractors. Lemley seems to overlook these subcontractors’ interests in pursuit of his “right” as a viewer to access the program.

Moreover, just because a work like a TV series is unavailable for a period, this does not mean the rightsholder will not make it available again in some form, if they believe it has an audience. For all Lemley knows, Onza Productions is preparing to make U.S. DVDs or seeking some other distribution channel. Or, perhaps, the market that is closed to this series in 2020 will change in two years, and there will be a new opportunity. Nevertheless, Lemley seems to argue that there should be a new standard by which we deprive the owners of their copyrights during this interlude of unavailability. But as Stephen Carlisle reminds readers in his response to this same paper, copyright is not a use-it-or-lose-it right.

A Public Domain Argument In Fair Use Clothing

Lemley rests considerable weight on broadening the factor four analysis, arguing that if the rightsholder, either by choice or circumstance, abandons the market, then the rightsholder cannot claim market harm when the work is used by someone else. But this is a fourth factor argument in name only.

Fair use is a one-use-at-a-time exception to copyright protection, whereas what Lemley is really proposing is that works should untimely fall into the public domain. He asserts that once the copyright owner halts, or even temporarily suspends, market exploitation of a work (for almost any reason) this should allow even a commercial enterprise to use the work. That is the public domain, where fair use has no meaning.

Under Lemley’s theory, it would be very difficult to determine which works have fallen out of licensed use that, according to some novel standard, deserve to be appropriated more quickly into the public domain. And this is made pellucidly clear when he proposes that even planned, temporary unavailability (e.g. a film studio windowing releases of its catalog) should be proscribed under his new doctrine. Although Lemley alludes to niche circumstances (e.g. an owner removing works to cleanse an author’s public record), he spends considerably more time citing Big Media examples that are both fatal to his legal theory and culturally un-compelling.

I know copyright critics can’t go too long without invoking the Evil Mouse, but it is anathema to Lemley’s theory when he cites Disney as an iconic copyright owner with a long tradition of offering limited releases of its classics. This “windowing” model is not unique to Disney, and it blows up Lemley’s proposal to expand the fourth fair use factor to his stated purpose. Why?

Because Disney’s business model proves rather dramatically that works retain market value for years, or even decades. Thus, the rightsholder would absolutely suffer market harm if, by virtue of intentionally and temporarily shelving a work, the right to use that work were to devolve to any other party. Again, this is just an argument for early termination of copyright protection. And if the making available rights were thus restricted, such that works would so rapidly fall out of copyright, this would have a negative effect on the production of new works—especially the motion pictures and TV shows that hope to capitalize on a long tail distribution strategy. As David Lowery states in this Twitter thread, “Why can’t I let a work of mine go out of print for a while to build demand, so that when I release it I can better recoup my fixed costs? What’s wrong with choice and freedom?”

Under Lemley’s proposal, Disney’s decision to hold back The Little Mermaid for a year or two would mean that Google or Amazon would be free to stream the film without license. Good luck! But the irony is that Google and Amazon probably wouldn’t bother because, according to Lemley, anybody would be free to distribute the film. Did he really mean to run smack into this wall by taking his theory quite this far? Perhaps.

It seems that Professor Lemley begins from a commonly-held, though false, premise—that there is an unlimited right to access works once they have been published. And in order to support this position, he intermittently conflates information with creative works. “Information,” he asserts, is “getting harder to access.” And whether there is any evidence for this claim, he dodges the question by vacillating between the public’s right to obtain information and its desire to access entertainment works via the “celestial jukebox.”

Even where there may arguably be some interesting crossover between those principles (e.g. if there were nothing but sanitized versions of Tarantino movies being made available), he declines to explore these nuanced possibilities in favor of citing mega-franchises like Star Wars. The updated version of A New Hope (no matter how much it bugs the purists) is simply not comparable to his reference to the 1930s American publication of Mein Kampf with the anti-Semitism watered down. These examples do not belong in the same conversation, unless George Lucas was a putative dictator and the original A New Hope contains his ulterior plan for committing genocide.

Even if every fan hates the updated version of the first Star Wars film, copyright owners retain the right to amend their works under §106(2) of the copyright act. That the original A New Hope should be accessible in some form, as a matter of preservationist principles, is a valid consideration, which is one reason copyright law has carveouts for libraries and archives. But for Lemley to make so broad an assertion, let alone under fair use, that would allow even commercial exploitation of the original version of a work is a theory that will find little purchase.

As mentioned, Lemley alludes generally to the hypothetical use of copyright to bury the record, and I would agree with him in principle, but for the scarcity of evidence supporting this complaint. For instance, he describes a circumstance in which a rightsholder may want to remove a work from the market because the work may now be considered offensive, but this begs two questions: 1) how often does this happen such that the original truly disappears?; and 2) is it often enough to recommend a rethinking of copyright doctrine? I suspect the answers are rarely and no. And Lemley even seems to acknowledge the rarely part, so why all the fuss? More likely, a work that is no longer in vogue, but which may have some cultural relevance as an artifact, will be legally available to the researcher, who may be the only person with any interest in finding it.  

Mesmerized by the Celestial Jukebox

Finally, all of this comes under the heading that Professor Lemley subscribes to the school of thought that, copyright makes works disappear in an era when technology enables everything ever created to be accessible by anyone from anywhere at any moment and forever. This ambition is a fantasy, both as a matter of practice and purpose. For instance, one need only glance at the tattered state of American political discourse to see that “information” is a woefully subjective concept and that more access to more of it does not seem to help one little bit.

As for entertainment works, neither Lemley nor anyone else can account for the multitude of reasons why various works ebb and flow through public consciousness at any particular time. I mentioned in an older post about the public domain that none of my kid’s friends seemed to know Charlie Chaplin, whose Little Tramp was the most recognizable figure in the world for most of the 20th century. But it is not a lack of access to the films (let alone copyright) that explains the disappearance of Chaplin from the Zoomer zeitgeist. It’s other things.

Even great cultural works will fail to capture contemporary interest for myriad reasons, including the simple observation that today’s market offers an overwhelming volume of new and old works competing for our attention. And this abundance is something the copyright critics usually applaud. I am sorry that Professor Lemley does not get to watch El Ministerio del Tiempo right now, but for the reasons stated (and quite a few unstated), that is an unremarkable starting place for a proposal to so dramatically amend copyright law.

So Much Section 230 Noise, So Little Time to Waste

Just a few years ago, it would have been damn hard to find a random citizen who had even heard of Section 230 of the Communications Decency Act of 1996. Now, this bit of wonky, statutory arcana is a topic buzzing on mainstream news, chirping in the Twitterverse, opining in the blogosphere, and echoing through all those extra dimensions where people gather in cyberspace. 230 will probably be Thanksgiving talk this year—I hope in small gatherings observing safe protocols—but all this attention does not mean that understanding the law, or its real problems, will be greatly improved.

For starters, Section 230 is only on the national radar because it has been politicized in a way that is both preposterous and tragic. The preposterous begins with Donald Trump and several vocal members of the GOP accusing the major platforms of partisan bias and censorship. Consequently, certain Republican Members of Congress have dangled the threat of repealing or amending the immunity from civil litigation that Section 230 currently provides to web platforms.

The political bias allegation is absurd and dangerous because it rests on the presumption that “conservative” now encompasses blatant disinformation, conspiracy theory, and organized hate groups that the major platforms have finally felt obliged to remove or mute. Trump and his most ardent fans endorse these negative forces, which is one reason why so many real conservatives, for the first time in their lives, are voting for the Democratic ticket this year.

As I’ve said before, rescuing intelligent and informed conservatism from the Trump wrecking ball is going to be a hell of a challenge for the GOP. But as part of that unenviable task, the putative leaders of the party’s renaissance could demonstrate some leadership in the §230 dustup by articulating some clear distinctions as to what has truly gone awry with the law, and acknowledge that addressing the legitimate concerns requires bipartisan cooperation. And that brings us to the tragic part.

Congress Should Focus on the Real Harm Being Done

Some of the very real victims of §230 (or more accurately, overbroad interpretation of the statute by the courts) are individual citizens—usually women and girls—who have their lives, careers, and relationships threatened or destroyed by the relatively novel and insidious forms of harassment conducted via online intermediaries.

The most obvious example is commonly referred to as revenge porn, whereby somebody with a gripe (e.g. an ex-boyfriend) is in possession of nude or sexually explicit material that he posts online, including websites specifically designed to host revenge content so that users can engage in an exchange of ideas like, “Yeah, somebody rape that bitch!” This is the kind of depravity §230 was written to prevent, not protect. But more on that below.

Revenge porn is more properly called nonconsensual pornography—first, because revenge is not always the motive, and second because motive does not actually matter. It’s the nonconsensual part that makes the act criminal, and the consequences for many of the victims of this crime do not end at embarrassment. As with all aspects of life in the digital age, what happens in cyberspace has real-world results, and this type of harassment leads to death and rape threats, attempted and actual assaults, job loss and forced relocations, and damaged relationships with friends and family.

It is no exaggeration to say that the psychological effects of one or all of these events can be so traumatic that people have been hounded to suicide by remote control. And with the addition of the technology known as deepfakes, an assailant no longer needs to possess explicit material. With just a photograph of a face, anyone’s sister, daughter, wife, or girlfriend can be seamlessly featured in a pornographic scene, or any other compromising event for which she was never present.

What Section 230 Actually Says …

Too often, Section 230 is described as a blanket immunity from civil liability for online service providers full stop. This is incorrect. Occasionally, it is summarized as immunity from liability for potentially harmful material posted by users. This is correct but only part of the statute. What Section 230 also says is that when a platform exercises editorial control in order to remove or mitigate material that “the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected,” this act of moderation does not inherently render the platform a “publisher” such that it becomes subject to liability in civil litigation for potentially harmful material posted by users.

It’s a mouthful and it’s nuanced, which is why §230 is so often misrepresented. But simply put, the statute known the “Good Samaritan” clause was written in 1996 to encourage platform operators to moderate the aforementioned objectionable material. But for nearly 20 years, the internet industry, with the help of judicial error, has promoted a misreading of the statute to assert that online service providers bear no obligation to moderate anything ever.

Also, this must be stressed again and again:  the absence of the §230 shield does not automatically make a platform liable for harm in a civil litigation. A plaintiff still has to make her case like any other claim. Removal of the shield simply means that the platform cannot instantly, without further consideration by the court, dismiss a claim at summary judgment. This has happened numerous times in circumstances where most reasonable people would find that the victim had the right to pursue justice.

Section 230 Overreach

For years, the internet industry inverted the narrative about Section 230, often citing the liability shield as a reason to continue hosting any material—even material that would be illegal in other contexts—and the courts have almost unanimously agreed that this is the correct interpretation of the statute. Consequently, the job before Congress, or the Supreme Court, is not necessarily to repeal §230, or even to drastically amend it, but to clearly articulate that it was not written to shield harmful conduct.

In an October 13 opinion pursuant to the Supreme Court’s denying cert in a recent §230 case, Justice Thomas explained why he believes the Court should, when the right case is presented, take up the issue of textually incoherent interpretations of the statute. For instance, citing a case from 2003, Thomas writes:

Under this interpretation, a company can solicit thou­sands of potentially defamatory statements, “selec[t] and edi[t] . . . for publication” several of those statements, add commentary, and then feature the final product promi­nently over other submissions—all while enjoying immun­ity. (Citations omitted)

One could, for political purposes, apply this opinion to criticize Twitter for placing a warning label on a presidential tweet that contains hazardous misinformation about, say, a deadly virus. And that is more or less where some Republican Members of Congress have tried to lead this discussion—that even a public safety editorial decision made by a social platform should void its immunity. But this would be wholly inconsistent with Congress’s intent in 1996 and a grossly negligent failure to serve those parties who suffer real harm from the courts’ misinterpretations as described by Justice Thomas.

Instead, Justice Thomas’s observation should be applied where platform operators either intentionally, negligently, or through willful blindness, traffic in content that is clearly designed to cause harm though libel, nonconsensual pornography, organized harassment, or (yes) misinformation that poses a danger to the public. I know that last one is prickly at the moment, but we used to be generally on the same side in such matters and will need to get there again, or Section 230 will be the least of our worries.

Hoist by Their Own Petard

The internet industry spent a lot of PR capital entangling 230 with misstatements about its obligations under the First Amendment to leave all content alone, which was and remains constitutional hogwash. Thus, to a great extent, the platforms’ own rhetoric has played into those members of the GOP who now accuse them of censorship. For years, the industry and its network of “digital rights” activists—the EFF, Techdirt, the ACLU, Public Knowledge, et al—cried censorship at every argument for moderation of even the worst material. And the public, regardless of politics, largely accepted this narrative based on the fallacy that more speech is the antidote to bad speech.

For nearly two decades, it was easy for the platforms to sweep a million sins under the “free speech” rug until the moment those sins crept into the realm of public policy. Trump becomes President, and suddenly, online content that any reasonable person could find objectionable under the textual meaning of 230 was being posted as official statements by the highest office in government. And presently, more than any other issue, the White House’s irrational conflict with infectious disease experts in the middle of a pandemic highlights the nature of the problem the platforms were creating for themselves—and for all of us.

I sincerely hope, in the broadest sense, for a return to normal in this country. I do not expect to see a Republican Reign of Terror at the polls, though I do think the party has some soul searching to do, and a timeout wouldn’t hurt. But most of the Section 230 noise being made by that party is just another side show in a carnival that many of its own members are sick of attending. And it’s a damn shame because there are real Americans, some of them fourteen-year-old girls, who could use a little help from a legislature acting in good faith.

I hope the next generation of conservative leaders will join their colleagues across the aisle and agree that Congress never intended for the “Good Samaritan” clause to shield harmful parties and their abettors from remedies pursued by the victims. We might all remember that the middle word in the CDA is Decency—a virtue the internet seems remarkably effective at destroying.

American Entrepreneurs Trampled by Politics in Antitrust Hearings

In a post published in August 2019, I discussed the fact that online IP enforcement is not just about the people we think of as traditional artists. Many small businesses—from garage start-ups to a few million in sales with employees to support—sell unique merchandise based on original designs protected by copyright and under trade names protected by trademark. And it seems that just about every week, I encounter an entrepreneur describing the volume and rate at which they find counterfeiters selling knock-off versions of their products on Amazon, eBay, Etsy, Alibaba, and some of the smaller retail platforms as well. The costly, often futile, game of whack-a-mole via DMCA takedown is not just for musicians and photographers; it’s being played by hundreds of American businesses.

As discussed in that previous post, the low cost of entry into the market offered by internet platforms comes at the often-hidden expense of making the enterprise vulnerable to counterfeiters, who are most often based in China. Copyrights and/or trademarks are infringed; prices are undercut by up to 80%; and the knock-offs are usually inferior quality. Then, to add insult to injury, consumers do not always know they’ve bought a counterfeit, and they blame the real manufacturer for the lousy product they received.

Congress has an obligation to help defend American entrepreneurs (and consumers for that matter) against the growing surge of online counterfeiters, and it has more than potential DMCA reform in its legislative arsenal to address the issue. For instance, part of the House Judiciary Committee’s ongoing antitrust inquiry entitled Online Platforms and Market Power includes investigation into how, or whether, platforms vet third-party sellers and remove those who violate Terms of Service or the intellectual property of legitimate sellers.

Sadly, the sixth hearing on July 29th—a headliner because the CEOs of Apple, Google, Facebook, and Amazon were called to testify—was sidetracked by partisan rhetoric that had little to do with antitrust concerns. And, yes, it was one party doing all the sidetracking.

Setting the stage, Chairman Nadler’s opening statement compared the contemporary market power of the major online platforms to the railroad monopolies of the early twentieth century, “New digital intermediaries have the ability to control access to critical markets. If you are an independent merchant, developer, or content producer, you are increasingly reliant on these powerful intermediaries to access markets and consumers…. Across the economy, many businesses fear exclusion from these platforms.” That describes many an entrepreneur’s problem in a nutshell.

But right out of the gate, the ever-bloviating Rep. Jordan’s opening statement begins, “I’ll just cut to the chase: Big Tech’s out to get conservatives.” He then he proceeds to cite, for example, Google allegedly muting Breitbart, The Daily Caller, etc. Watching the discussion proceed from there, I wondered if Jordan, the smug Matt Gaetz, and several other Republicans (though not all) had wandered into the wrong hearing. After all, two of the four witnesses before the committee—Cook for Apple and Bezos for Amazon—do not even operate social media sites. What have they got to do with political bias?

Even if there were merit to the allegations of partisan bias in platform moderation, it is a complaint that presently begs absurd questions like whether Jordan et al are determined to embrace all supporters, no matter how dangerously crazy they might be, as “conservative”? If the same hearing were held today, would Facebook’s dropping QAnon pages count as anti-conservative in Jordan’s mind? Probably. And this warped definition of “conservative” is so profound that the GOP has currently shed lifelong, prominent conservatives, including many members of the national defense apparatus.

The irony of this fiasco could not be more typical of our contemporary politics. Far too many Republicans in that hearing showed up to grandstand on the wrong issue while shirking a core conservative principle to support American business—especially when those businesses are being harmed by foreign-based counterfeiters. American jobs remain in the crosshairs, while Jordan et al chose to complain about Facebook or Google demoting, removing, or flagging disinformation and conspiracy theories. Although one could loosely subject the issue of media bias to an antitrust analysis, the Republicans’ derailing that particular hearing to stand on that particular soapbox was an act of legislative malfeasance by the party that presumes to call itself pro-business.

Amazon is one of the most problematic retailers for small producers who sell online, and it is rare to see Jeff Bezos testifying before Congress. But rather than seize the moment, what the most vocal GOP Members managed to achieve, by wagging their fingers at Mark Zuckerberg on the wrong topic, was to let Bezos know that Amazon probably doesn’t have to change a damn thing. At least for now, there appears to be no bipartisan interest in legislative help for small businesses getting clobbered on the major retail platforms.

The cost of counterfeiting is no mere inconvenience that can be factored in, like anticipated shoplifting. Depending on the volume and scope of infringement, the costs may be anything from lower profits, to reducing the resources to hire or retain employees, to shuttering a whole business. Without a legislative response that envisions an intersection between antitrust and intellectual property enforcement, these entrepreneurs have little hope of addressing the growing problem.

I recently read a discussion about the prospect of filing a class-action suit against an online retailer, but that seems like a journey filled with tears and pain that will lead nowhere. Even if a class could be formed to, for instance, sue Amazon for the next decade or so, the Supreme Court in 2019 did not resolve the flaw in cy pres awards that diverts class-action damage awards away from the plaintiff class and, bizarrely enough, often finances the interests of the “losing” defendant. (See post here.)

Protecting American entrepreneurs from predatory, mostly foreign, operators, facilitated by American internet platforms, is absolutely the job of Congress. And Chairman Nadler is right to compare this moment to the railroad monopolies of more than a century ago. The mission to support independent businesses should be bipartisan and, as stated, should be a classic objective for anyone calling himself a Republican. Sadly, the counterfeiting problem does not appear to have the House Judiciary Committee’s undivided attention at this time.