Category: Culture

Hypocrisy is as hypocrisy does in copyright fight.

I recognize that it’s vogue to malign the interests of copyright holders, particularly when various pundits recount anecdotes of sympathetic-sounding new creators who find themselves as defendants in a litigation. Recently, Andy at TorrentFreak published a lamentation on the excess and “hypocrisy” of copyright enforcement in the case of Serendip v Lewis Bond.

Mr. Bond, a UK citizen who distributes videos to his monetized YouTube channel called Channel Criswell, posted his 20-minute documentary composed almost entirely of film clips from the works of Stanley Kubrick along with his own narrated commentary. The use of the clips may arguably be a fair use—I admit to scanning the doc and not watching the whole thing—but Bond also synched several music tracks from A Clockwork Orange to his film, and he is now being sued for copyright infringement by Serendip LLC, which owns and manages the rights to the works of composer Wendy Carlos.

Calling it a “Sad Hypocrisy” Andy wants to present a tale in which a budding and talented young filmmaker (Bond is 23) is being unfairly and needlessly squashed by an older artist, who should respect that Bond is simply building upon works the way Carlos built upon the works of others. Andy opines that there is a path other than the courts to a happy place where artists collaborate instead of litigate, which sounds sweet but is entirely missing the point. To emphasize his perspective, Andy makes such a hash of copyright law in general, and the facts of this case in particular, that the only clear hypocrite in the mix is him. After all, it is hypocrisy to believe so firmly in a position on a given topic that one makes no effort to examine the facts of an individual story before adding it to the anthology of “evidence” for that point of view.

To begin, Andy relies on a typical assumption that he knows anything about Carlos’s financial interest in her works and that her current income is in any way relevant to enforcing her rights. He states, “While undoubtedly a wonderful and timeless piece of music, is a track from 1971 really bringing in the money for Clockwork Orange [sic] composer Wendy Carlos today? Has Bond’s fleeting reproduction of a part of this track in his documentary caused real financial damage?”

Here, Andy makes two critical errors. The first is that enforcing IP rights isn’t always about financial damage from the use being litigated. It’s about precedent. One either protects IP or one does not. And if a rights holder lets some infringements go on the grounds that “they weren’t all that harmful,” this can weaken his/her ability to enforce those rights in future cases. The second mistake is that Andy’s assumption of value in this case is apparently wrong. The brief filed by Serendip states that of all of Carlos’s works, the tracks she created for A Clockwork Orange are the ones most in demand and most often licensed for substantial fees. This means that, yes, Bond’s use, if left unenforced, does directly threaten the business in which Serendip manages those rights for Carlos’s works. How much or little she currently earns from this enterprise is nobody’s damn business and also irrelevant to the need for consistency in enforcement.

Andy’s next error—and it’s a whopper—is to go off on a whimsical tangent calling Carlos a “hypocrite” because one of the works in question is not her composition but that of Henry Purcell, who died in 1695. Although Andy seems to think he’s zapped Carlos with a real gotcha here, he fails to acknowledge that master recordings are separately copyrightable regardless of who the original composer is, and that uses of music exactly like those made by Bond — as atmospheric elements synched to a film — require both a synch and a master use license. The underlying composition is either separately copyrightable or in the public domain, as is the case here. Andy describes the music thus: “It is an abridged version of this [Purcell’s] music that forms the entire basis of Carlos’ 1971 work. Arrangement and beautiful synthesizer work aside, it’s virtually identical.”

Nope. It’s just identical. Because if one simply looks at the playlist for the film’s soundtrack, we see that the “Title Music from A Clockwork Orange” is attributed to Purcell’s March for the ‘Funeral of Queen Mary.’ Carlos doesn’t claim authorship of the underlying composition and has no reason to do so. But, as mentioned, this has nothing to do with a litigation over copyright infringement of her master recordings, of which three are named in this lawsuit — all of them based on classical compositions, with the other two by Rossini and Beethoven. Andy wants to propose that Lewis Bond is building upon Carlos’s work the way Carlos built upon the works of these other composers, but this is neither true creatively nor legally from any real-world analysis of Bond’s use.

As to the matter of Bond as a victim of copyright, I clearly cannot say whether he is being defiantly foolhardy or innocently naive in this case, but the Serendip brief does state that after they issued a takedown notice through DMCA, Bond “immediately” filed a counter-notice. Now, I’ve learned a few things about copyright over the last four years, but there is no way in hell I would take a potentially $450,000 gamble that my own fair use analysis would be so solid that I’d go filing a counter-notice in a similar circumstance — at least not without consulting an attorney. And in this particular instance, I cannot see an argument that remotely favors a finding of fair use. Bond used these tracks in the most typical manner music is used for film — as accompaniment — and this use is always licensed. If Bond were attempting to distribute his film anywhere but YouTube, he would have to demonstrate that he had all such relevant license agreements in place.

It’s not that I don’t have any sympathy for Lewis Bond—at least in theory—but stories like this raise two broader issues in my mind. The first is that new creators, who want to take the authorship of their works seriously have just as much obligation to consider copyright as the creators who came before them. Wendy Carlos didn’t build her career without ever considering the copyright implications of her choices, and those who want to use or build upon her works have the same responsibility. Just because a contemporary new creator is a creature of the digital age, this calculus shouldn’t change, though many seem to think it should.

Having said that, if Bond and his contemporaries are victims at all, I would argue that they are harmed by editorials like this one by Andy at TorrentFreak. The pundits and corporate leaders who have so consistently misrepresented facts about the law and pushed a message of “infringe now, deal with it later” are doing a disservice to the next generation of artists by fostering bad intel on complex matters like fair use. As such, if these interests really cared about artists, they might back off the rhetoric a bit because new creators like Bond simply cannot afford the hubris of tech-industry billionaires.

Thanks to regular reader John Warr for bringing this story to my attention.

Looking for Censorship in All the Wrong Places

Last week, I stumbled on a tweet by a staff member at the Electronic Frontier Foundation warning California citizens to “take action” in protest against the passage of Assembly Bill 2880.  The linked article on the EFF website written by Ernesto Falcon begins by asserting in its headline, subhead, and first paragraph that California will be venturing into brand new territory with regard to registering or enforcing state-owned intellectual property and that this will have the usual litany of ill effects—“chill speech, stifle open government, and harm the public domain.” Falcon’s first sentence reads, “The California Assembly Committee on Judiciary recently approved a bill (AB 2880) to grant local and state governments’ copyright authority along with other intellectual property rights.”  (Emphasis added.)

It is standard procedure for the EFF to make scary declarations while avoiding specifics. They have a habit of telling people that a proposal will be really bad while shirking the effort of quite explaining how. The organization also tends to focus almost entirely on copyrights when a broader view of IP might be relevant in a given circumstance, as it is with a state, which may have at least as much interest in patents and trademarks as in copyrights.  What Falcon wants the reader to conclude is that AB 2880 will grant new authority to the State of California to copyright works like public records, which would then give elected officials a means of stifling speech by misusing copyright law.  You might recognize this theme as one of the EFF’s Greatest Hits, but of course, this bill does nothing of the sort.

AB 2880 does not establish new IP rights for the State of California.  California and other states have owned intellectual property for a very long time.  A  FY2000 California audit of IP states, “In total, 125 state agencies own more than 113,000 identified items of intellectual property.” What this proposed bill does do is to clarify California’s position on its IP and then requires procedures (e.g. developing guidlines for contractors) to be overseen by the Department of Governmental Services for better management of state-owned intellectual property. A need for clarification in the law is noted in the comments from the State Assembly floor, which cites lessons learned from the widely publicized, 2015 dispute between the National Park Service and the Yosemite National Park concessioner Delaware North.  The floor comments include the following:

”…the lack of a robust intellectual property framework has led to confusion among state agencies, loose and informal practices, and possibly confusion among state and federal courts. Several recent court decisions have held that state agencies need legislative authority to hold intellectual property rights. In light of the recent Yosemite trademark issue and the recent court decisions, this bill builds on the framework established by AB 744 in order to assist state agencies manage and protect the state’s intellectual property rights, particularly in state contracts where state-owned intellectual property is at stake.” 

That’s not exactly spellbinding, but neither the character nor the language in this bill gets anywhere near the EFF’s implication that California agencies will have “new powers” to use copyright law in order to stifle speech or limit access to public records after passage of 2880.  Nevertheless,  Falcon writes, “As things stand today, works created by California state and local governments (like reports, video, maps, and so on) aren’t subject to copyright except in a few special cases. That ensures that Californians who funded the creation of those works through their tax dollars can use those works freely.”

Not quite.  Falcon is purposely being vague in order to have the reader assume that public records will be treated the same as expressive works or other IP that is funded by California taxpayers, especially where third-party contractors are involved.  At the same time, he’s sowing a bit of confusion about the difference between public property and the public domain—as if all works funded by taxpayers are automatically in the public domain, which is not the case.

A work, invention, or process that is in the public domain is no longer property of any kind.  It is entirely fair game for anyone anywhere to use for any purpose.  Public property, on the other hand, is just that; and state agencies have a responsibility to protect the investment of the constituency who paid for the development of the property.  For instance, it is common that public property, whether physical or intellectual, may not be used by a for-profit entity without that entity paying a license fee that goes back to the public fund.  And this is as it should be; the taxpayer isn’t typically expected to fund free resources to be used by for-profit entities without getting something in return.   To manage this, states need an intellectual property regime, and AB 2880 is a rather mundane update to that regime.

On the subject of censorship, Falcon draws our attention to the case in which the City of Inglewood wrongly filed a lawsuit against Joseph Teixeira, who posted city council videos (which are public records) on YouTube in remixes that were critical of the city’s Mayor James Butts.  The lawsuit was, to put it mildly, an act of rank stupidity on the part of city officials, which is pretty much what Federal Court Judge Fitzgerald said when he not only tossed out the case as “meritless,” but also ordered the City of Inglewood to pay the full fees of bringing the case in the first place.

And although Falcon is following the EFF playbook by riling up readers with a reference to this attempted abuse of copyright law, there is nothing in AB 2880 that would newly empower a future state public official to get any further with a federal court than Mayor Butts did.  It should also be noted that nothing in AB 2880—or any other statute for that matter—can fully prevent people from attempting to misuse the law, which is one reason why a judge determines whether or not a case has any standing before it can proceed. If anything, the Teixeria story ought to chasten city and state officials against future temptation to use copyright to stifle speech.

In addition to conflating public property with the public domain, Falcon is purposely mixing public records with other types of works that are copyrightable and is also confusing federal policy with state policy.  It goes without saying that federal public property belongs to all American citizens while state public property belongs to the citizens of that state, but it is not true that all public property in either case is the same thing as the public domain.   Still, Falcon declares that AB 2880 will impose new restrictions on California’s taxpayer-funded works, as if the proposed bill will move these works from the public domain into the protection of copyright. He writes, “… a vast majority of state created works are free to the public with only five exceptions. All other audio, visual, and written work of state and local govenment employees is in the public domain upon creation and free for the public to use however they see fit.”

Again, not quite. The legal precedent to which Falcon’s link refers states that the California Public Records Act “prohibits copyright in state government records unless there is specific statutory authority to do so.”  And this precedent is not overturned by the new language proposed in 2880, which reads as follows:

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires. A public entity’s intellectual property right shall not preclude the public entity from disclosing any information otherwise accessible under the California Public Records Act. A disclosure under the California Public Records Act shall not be construed as waiving any rights afforded under the federal Copyright Act of 1976.

All that says is that state agencies may own intellectual property (which was already true), that copyrigths may not preclude public access to public records, and that disclosure of public information does not inherently void the state’s copyrights. Not only does this language not override existing law, it seeks to clarify the law in light of some of the lessons learned from various court cases, as described in the floor comments cited above. Of course it is entirely possible that this clarification is exactly what the EFF doesn’t like about this bill. Clearer copyright laws are the opposite of no copyright laws, and it seems as though that organization is only ever interested in the latter.

A Strange Anecdote of DMCA Abuse?

I was told by a colleague who attended the Section 512 round tables in San Francisco that a consistent response from representatives of the OSPs was that anecdotes about harm to rights holders from piracy or YouTube-style infringement are not sufficient.  “We need data,” was apparently an oft-repeated imperative.  This is funny because that same crowd loves anecdotes about abuse of DMCA, and well they should because the anecdotes are likely to be more compelling than the data on that matter. But sometimes, the anecdotes are downright bizarre, as with this story reported yesterday in The Guardian by Alex Hern.  It is in fact the story of the DMCA abuse that wasn’t there.

At first reading, one assumes that this is a typical story about some non-copyright holding entity misusing the DMCA in order to attempt to censor criticism of its business.  In a nutshell, a UK citizen named Annabelle Narey had a bad experience with a UK building company called BuildTeam, and she consequently posted a negative review on a parents’ news and comment site called Mumsnet.  Her initial post prompted a thread of other users sharing their own bad experiences with the same company, which apparently prompted BuildTeam to try to have the negative reviews removed, even initimating possible defamation.  But then, Hern writes this:

“Mumsnet received a warning from Google: a takedown request had been made under the American Digital Millennium Copyright Act (DMCA), alleging that copyrighted material was posted without a licence on the thread.

As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.”*

Initially, this description sounded odd to me for several reasons, not the least of which is that it would take about 30 mintues or less for Mumsnet to review 126 posts of this nature, which are usually quite short.  More than that, though, under the DMCA, a properly filed notice has to identify the Allegedly Infringed Work (AIW) and state under penalty of perjury that the filer is the owner, or agent of the owner, of that work. As such, what work was the filer alleging had been infringed in a thread of comments?  Because if the notice just said something as generic as “contains infrininging material,” then the notice should have been rejected by Google.  More confusing still, as Hern goes on to describe, the filer of the take down request wasn’t even BuildTeam.  Who it was is not quite clear.

Hern describes a strange sequence of events in which a guy named Douglas Bush plagiarized Narey’s original post, published it on a “spammy website,” and also pre-dated the post to a day three months prior to the day Narey had originally published it.  Then, it appears that the registered owner of said spammy website, a Mr. Ashraf of Pakistan, may have been the one to send the DMCA takedown notice pertaining to the original thread.  It sounds a bit like a ham-handed attempt at a copyright scam; but suffice to say, there is nothing legit about the take down request, and Google should not have processed it at all. Moreover, under these circumstances, Mumsnet should not have had any fear of restoring the material via counter notice, as Hern suggests they might.  He writes the following:

“Whoever sent the takedown request, Mumsnet was forced to make a choice: either leave the post up, and accept being delisted; fight the delisting and open themselves up to the same legal threats made against Google; or delete the post themselves, and ask the post to be relisted on the search engine.”  

What?? There is no such thing as “whoever sent the request.”  This DMCA filing clearly fails to meet statutory requirements, and the apparent sender is apparently in Pakistan! Mumsnet should have had no concern regarding litigation from anyone as a result of restoring this material. But then, Hern reports this:

Mumsnet deleted the post, and asked Google to reinstate the thread, but a month later, they received final word from the search firm: “‘Google has decided not to take action based on our policies concerning content removal and reinstatement’ which (it turned out) meant that they had delisted the entire thread”. 

Again, what in blazes is going on in this story?  Because it looks an awful lot like Google just plain messed up. Yet, for all its muddy details, Hern is presenting this tale as a prime example of how copyright becomes censorship on the internet, blaming the law itself for his own conclusion that “ … sites like YouTube, Twitter and Google … are forced to develop a hair-trigger over claims of copyright infringement, assuming guilt and asking the accused to prove their innocence.”

That’s a familiar refrain that rings hollow with legitimate rights holders who make proper use of DMCA.  Meanwhile, Google has often fought tooth, nail, and elbow against delisting search results, asserting past refusals to do so as a matter of principle. And that’s in cases involving clearly infringing links.  Why is the search giant, as Hern states, suddenly on a “hair trigger” to delist this little thread of consumer comments about a building service, where a copyright infringement is highly unlikely to exist?  And why should rights holders who have an interest in legitimate take down requests continue to have those interests denigrated by the general characterization that DMCA is so often used as a tool for censorship?

The potentially compelling part of this story is the matter of what Mr. Ashraf was actually intending. If he was the one to publish someone else’s post as his own and then use DMCA to attempt to assert an infringement claim against the original, what did he hope to achieve?  Is this a new kind of scam, general mischief, or a third-party exercise in censorship? It seems to me all the parties involved, including Google, should want an answer to this question, rather than settle on the familiar but misguided conclusion that copyright itself is the villain.

*It should be noted that Mumsnet does not use an internal search tool for its comment threads, but in fact uses Google Search. This would appear to be a factor in this story.