Category: Culture

Google et al Seek Ruling with Fair Use Axe to Grind

What do a bunch of puppies, a pretty woman, a dancing baby, Demi Moore, some Rastafarians, and 20 million books all have in common?  They all refer to prominent, copyright-related cases* from which a content creator could—if he has nothing better to do—learn something about fair use doctrine. But even if an independent artist were to study Rogers v Koons (1992) right through the most recent ruling by the 2nd Circuit Court of Appeals in Google v Authors Guild, I suggest that what he is most likely to discover is that fair use is a highly subjective component of U.S. copyright law.  In fact, the subjectivity is part of what makes the principle, and the cases in which it is argued, so interesting—at least to me.

As many readers know, fair use was codified into law in 1976. Functioning as a limitation to copyright, its initial intent was to allow the use of a protected work, regardless of the author’s permission, for the purpose of commenting in some manner on the work itself.  Although the doctrine has evolved to include uses that transform works for purposes other than commentary (e.g. Google Books), the underlying need for the fair use limitation was to maintain balance between free speech and copyright. If an author were able to enforce his copyright in order to stifle a use necessary to comment on his expression or that transforms his expression in some useful way, then free speech may be chilled or copyright may fail in its purpose to promote expression or progress. But drawing these contours is, of course, only possible on a case-by-case basis. When a defendant argues  fair use in a copyright infringement suit, a panel of judges will consider these four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole and relative to the purpose of the new work or use.
  4. The effect of the use upon the potential market for the value of the copyrighted work.

Even a casual glance at these criteria should tell independent creators what their attorneys would tell them, if they had attorneys—that there are no bright lines in fair use defenses.  Each case is distinct and highly susceptible to human interpretation. For example, I bet most laymen—me included—would have a tough time squaring the 1992 decision rejecting artist Jeff Koons’s fair use defense for his use of Art Rogers’s “Puppies” photograph with the 2013 decision affirming Richard Prince’s fair use defense for his use of Patrick Cariou’s Rastafarian photos. The reason I cite these two cases is that when considering the fourth factor in the latter, the panel determined that because Prince’s market is the fine art world and Cariou’s market is not, the potential market harm to the original photographs would be unlikely.  Aside from the fact that this contemporary ruling places judges in the undesirable role of cultural critics, the point I’m making is that the same distinction could have been made between Jeff Koons and Art Rogers, but it was not.

Forgive that detour, but I’m trying to underscore that, although there are some fairly simple circumstances in which a rights holder might make a reasonable assessment about a fair use of her work, case law demonstrates that there is nothing universally objective about the doctrine—perhaps especially when the use is artist to artist.  In fact, my colleague Terry Hart tells me that between 1978 and 2005, 33.8% of District Court fair use decisions were overturned on appeal. And there’s a reason why the landmark case involving 2 Live Crew’s parodic version of the song “Pretty Woman” went all the way to the Supreme Court:  because fair use is complicated.  So, the suggestion that a non-attorney, creator can be expected to make an “objective” assessment of a possible fair use defense prior to sending a DMCA notice to take down an otherwise infringing use of her work online is an exercise in metaphysics, if not outright sorcery.

My apologies at this point for the amount of amateur legal analysis in this piece—something I normally avoid—but there’s no other way to tell this story.

The reason I’m stressing the subjective nature of fair use is that this week an amicus brief was filed on behalf of Google, Twitter, WordPress, and Tumblr asking the Court of Appeals for the 9th Circuit to overturn—not its decision—but its rationale in the 2004 case Rossi v MPAA.  And it appears, based on the number of references to fair use in the brief, that they are seeking this revision because it might strengthen the Internet industry’s position regarding the ruling just last month in Lenz v UMG, a.k.a. the “Dancing Baby” case. (This involves the temporary takedown from YouTube of a home video depicting Ms. Lenz’s baby dancing to Prince’s “Let’s Go Crazy,” which occurred in 2007 and has been litigated by the EFF ever since.)

The recent Lenz ruling by this same court affirmed that a rights holder, prior to sending a DMCA takedown notice, must consider whether or not a use would be judged fair but that the consideration may be “subjective,” thereby rejecting the EFF’s argument in that case for an “objective” standard. So, it’s interesting that the Internet companies named in this brief are seeking a revision to the rationale in Rossi, in which the court also applied a “subjective” standard, but in a lawsuit that had nothing whatsoever to do with a fair use defense.  So, why seek the new ruling in Rossi instead of Lenz?  Because in a weird way, it might work.  But not necessarily.

In Rossi v MPAA, Michael Rossi claimed that the Motion Picture Association wrongfully used the DMCA to shut down his site internetmovies.com.  The takedown was issued because the site had advertised that full-length movies could be downloaded from the portal, though this turned out not to be true.  Rossi was lying to users (presumably in order to generate traffic), and the MPAA did not confirm whether or not his platform actually made movies available before they sent the takedown notice.  As a result, Rossi sued MPAA for a variety of injuries stemming from its alleged abuse of DMCA, but the court held that MPAA had acted in good faith in accordance with the DMCA and so rejected all of Rossi’s claims.

This new amicus brief filed on behalf of Google et al, states that the outcome of Rossi is correct but that the court should “take this opportunity to clarify the law and hold that that the good faith requirement in Section 512(c)(3)(A)(v) encompasses an objective standard with respect to whether use of a copyrighted work is ‘authorized by law.’” In theory, if these Internet companies can convince the court to affirm an “objective” standard in Rossi, the revision could perhaps be applied to the decision in Lenz and then more broadly assert that any rights holder must “objectively” consider fair use before issuing a takedown notice, or risk possible litigation for wrongful takedown.

But even if the court were to revise its ruling to affirm an “objective” standard in Rossi, any reasonable person should recognize that the additional burden on the MPAA in that case would be a consideration that is, in principle, objectively possible (i.e. they might have been able to confirm whether or not Rossi’s site was actually making movies available illegally).  But, in a given situation in which a rights holder contemplates issuing a takedown notice, there are almost no objective criteria (i.e. evidence) by which he can consider whether or not the recipient of the notice might present an effective fair use defense. (As addressed in this post about an artist friend of mine, fair use confuses people with the best intentions.)  The dynamic and interdependent nature of the four factors alone should demonstrate to any reasonable individual that fair use is a highly subjective, case-by-case doctrine.

More specifically, the “subjective” ruling in Lenz refers to the automated notice and takedown procedure, typically used by major rights holders like UMG, coupled with an algorithmic (i.e. imperfect) process to assess likely fair uses. The court held that this “subjective” automation meets the standard of a good faith effort, which seems only reasonable in light of the tens of millions of rightful DMCA takedown notices that are sent out by major rights holders every month. And that brings us to the heart of the matter …

Can we address takedown abuse without improperly burdening rights holders?

Ostensibly, the aim of this amicus brief is to address the problem of abusive takedown; and the authors state their broad concern about the “subjective” standard thus:

“… the more misinformed or unreasonable the copyright owner, the broader the immunity he would have from liability under Section 512(f). This reading of 512(f) would effectively encourage copyright owners to remain ignorant about the limitations on their exclusive rights under the Copyright Act, see 17 U.S.C. §§ 107–123, because the less they know, the more leeway they would have to send takedown notices.”

Perhaps there is some merit to this anxiety, but I am doubtful that the solution will be found in seeking the “objective” standard revision in Rossi. After all, the takedown of Ms. Lenz’s video did not occur due to ignorance of the law; the video was restored to YouTube according to DMCA procedures; and it was the EFF that decided to spend the last eight years suing UMG because the case appears to have provided a pathway to reshape the law behind the PR veil of “big mean corporate rights holder picking on an innocent baby.” As I’ve said in the past, there are better examples of DMCA takedown abuse, but not so many with headliner names like Prince.

No question that DMCA takedown abuse does happen, though it is dramatically outweighed by the number of legitimate takedown notices that are sent and resent in a nearly futile attempt to stop countless incidents of actual infringement. The amicus brief cites several exemplary takedown abuses—many of which would likely merit a fair use defense—issued by individuals or entities who either don’t understand copyright or who know exactly what they’re doing and are abusing copyright in an attempt to censor criticism or commentary. But these examples are not an indictment of the purpose of copyright; and rights holders with legitimate claims should not be made to bear the burden of mitigating abuse by a minority of bad actors—least of all with the purpose of making DMCA procedures easier or cheaper for OSPs. In fact, the weakness of the stated motivation for this amicus brief is written in the document itself and stated thus:

“Google receives hundreds of notices that suffer from similar defects, often repeatedly from the same vexatious submitters, and devotes substantial human and machine resources in an attempt to identify these abusive notices among the tens of millions of DMCA notices that Google processes each month”

Out of tens of millions of notices, Google identifies hundreds of potentially abusive ones from a consistent group of “vexatious submitters.”  Does that not sound on the face of it like an exception to a rule, one that begs for a targeted solution rather than a broad revision of legal standards that may place undue burden on many rights holders?  The Internet industry regularly criticizes proposals for remedies and legal frameworks for being “overly broad.” Yet, the pursuit of this revised standard, seems to be asking the court to use a sledgehammer to swat at flies.  Hundreds of abusive notices out of tens of millions is somewhere in the universe of .003%, and the Internet industry wants us to believe that this is the real problem with DMCA.

It seems to me that the public interest would be best served by Congressional revision of the DMCA in order to mitigate both takedown abuse and safe harbor abuse (though you may hear a collective gasp from Silicon Valley at the suggestion of the latter). In fact the amount of energy and resources the Internet industry has devoted to rewriting Lenz into a story of “abuse” is both revealing and appalling. After all, it is unreasonable to argue that a rights holding entity must be held to a stricter standard of consideration of the legality of a particular use while inadequacies in the antiquated safe harbor provisions necessitate the automated issuing of tens of millions of takedown notices per month.  In other words, if Google et al want rights holders to more carefully consider each infringement, then Google et al should be required to more aggressively reduce the volume of infringement on their platforms down to a manageable scale. Meanwhile, I believe neither the courts nor Congress should amend standards that can in any way increase the challenges already faced by individual and small-entity creators to enforce their copyrights in the digital marketplace. In fact, making that enforcement easier just might benefit everyone.

* In order as referenced: Rogers v Koons; Campbell v Acuff-Rose; Lenz v UMG; Leibovitz v Paramount Pictures; Prince v Cariou; Google v Authors Guild.

Google Books is a good thing, but …

Given the way information tends to distort at lighting speed these days—particularly through the filter of tech v copyright referenced in my last post—I’m not surprised to read articles like this one by Ellen Duffer writing for Forbes on a thesis proposing reasons why Google Books is “good for publishers.” And it’s not that everything she says is incorrect so much as irrelevant, if the article is purposely meant to comment on the recent 2nd Circuit Court ruling in favor of Google in its ongoing litigation with The Authors Guild.

Not only does this  lawsuit have nothing to do with publishers, the timing of Duffer’s article, essentially making an argument for the worthiness of Google Books, might lead readers to think this lengthy litigation has been all about stopping the project from moving forward. It hasn’t.  There is no need for Duffer or anyone else to extoll the virtues of Google Books when the litigant authors generally agree that the search tool is a tremendously valuable resource with great social benefit. Hence, The Authors Guild has never filed for injunctive relief asking the court to order Google to stop what it’s doing. What the authors do want is compensation from Google for digitizing their books. As stated by Authors Guild President Roxana Robinson, “We aren’t challenging the concept of a search engine, just the seizure of copyrighted material. If Google is willing to compensate an author for using her work, they’re welcome to offer searches in it as much as they like.”

In order to create the Books search tool, Google has digitized over 20 million complete works.  Many of these are in the public domain; many are still in print and are still under copyrights owned by publishers; and many are works (in print or out) for which the copyrights are owned by the individual authors or their estates.  The public domain works are obviously fair game; but regarding the books still under copyright, Google has a negotiated contract with the publishers but no deal to compensate any of the authors.

The full story behind this division is a ten-year saga of attempted deals and lawsuits going back to the days when this project began as a partnership between Google and publishers, and then the libraries got involved; but the individual authors who own their own copyrights have never been paid, which makes them wholly involuntary contributors to this potentially profitable venture for Google.  (Please tell me nobody believes at this point that Google is doing this, or anything else, solely for the greater good. Can you say $400 billion market cap?)

Google has claimed that securing rights for individual works is too cumbersome, to which The Authors Guild’s Executive Director Mary Rasenberger responds, “Google has made much of how hard it is to clear authors’ rights. Our sister organization, the Authors Registry, can assure them it is not difficult. We can show them how it’s done, and with far less money than Google has at hand.”

To be sure, complaining about the scope of work required to clear these rights sounds a little fishy coming from the company that processes 20 petabytes of data every day, the organizer of the world’s information, the unrivaled leader in all things search and index, and the company that flaunts its ability to innovate at “Google scale.” It seems to me if you’ve got both the resources and the chutzpah to want to be the first company to digitize every book on the planet, that securing even a large number of rights should be a relatively minor function of the overall project.

Instead, it appears that if Google fought this hard and spent what must be millions in legal fees just to not pay the authors, their rationale is probably not about the money; and it’s not credibly because the process is too daunting for them.  Surely, Google hoped to prevail on a fair use defense—as it has to date—and to break new legal ground in its ongoing effort to reshape the fair use exception until it is so over-broad as to be almost meaningless.

Having said that, legal experts will disagree about the extent to which this most recent  ruling really sets new and clear precedent, rather than introducing a new vagueness to the doctrine that will only be clarified through future litigation.  Either way, Google’s agenda seems transparent; and as much as we may like Google Books itself, the general public should not be too quick to assume that broadening fair use doctrine is automatically more democratic or will foster more innovation, particularly when the doctrinal change is being pushed so hard by such a powerful corporate entity. After all, Google has a pretty consistent track record for consolidating market share and for pushing boundaries in this country and abroad with regard to the rights and interests of individuals and small entities.

Whether Google pursues cases that weaken IP protections or privacy rights; or it exerts the power of its monopsony position on platforms like YouTube, I think people have figured out that Google is just a business and should not be assumed to represent all that is good about the idealistic underpinnings of the Internet itself.  The company’s empower the individual rhetoric is just PR, and with the recent dropping of its founding motto “Don’t be evil,” we are reminded that this is all just business; and no business gets to nearly a half-trillion-dollar market cap without being at least a little evil to somebody.  Google Books sort of makes this point; it’s a good service supported by somewhat evil means in that it disenfranchises the most vulnerable individuals involved, when this is unnecessary in order to fulfill its otherwise worthy goals.

I also think the Books case serves to highlight a pattern consistent with Google’s game of steadily eroding the legal rights and/or bargaining power of individuals while trading on the illusion that it serves as an engine of individual rights and individual voices.  We’ve seen how the independent musical artists on YouTube have had the gateway drug of Content ID pulled from them if they choose not to sign the newly exploitative MusicKey contract. And with plans to launch the video subscription service YouTube Red, Google appears ready to employ similar hard-ball tactics with its most lucrative video content partners, offering them the choice of a lesser revenue-share deal or outright removal from the platform. (Lest anyone forget, it’s really TheirTube.)

If we combine the kind of pressure Google exerts on independent creators through its policy agendas with the company-store type terms it can dictate to individual creators, it’s easy to think of this strategy as the digital-age equivalent of union-busting during the late 19th and early 20th centuries.  Strip labor (in this case content creators) of both their rights and their negotiating power while consolidating market share in a technological paradigm that fosters natural monopolies. It may be the future, but it’s actually a very old story being written in ones and zeroes instead of coal and steel.

Netflix Is Not An Internet Business

With the release this month of Netflix’s first official feature film Beasts of No Nation, the rental-turned-streaming service continues to prove itself a fierce competitor in the filmed entertainment industry—not only as a producer of award-winning projects, but as the preeminent, game-changing distributor having a dramatic influence on both traditional distribution models and viewer habits. This is particularly true with works we would normally call television programming, but it should be no surprise to see Netflix, Amazon, and other streaming services jump into the production of feature-length motion pictures. Still, even as Netflix reshapes the producer/distributor landscape, it would be a mistake to call it an “Internet business.”  It’s not. It’s a filmed-entertainment company—one that has followed almost the exact same business model as most cable networks, which built revenues on syndication (very similar to rentals) until they had the resources to begin producing original programming. Hence AMC makes Mad Men.

Naturally, the most profound change in TV viewing effected by streaming technology is the ability to “binge watch,” which is itself a neologism with an unnecessarily negative connotation. Speaking as a guy who abandoned “by appointment” television more than 25 years ago, I have to say that I now do watch TV shows again because of the opportunity to view an episode or two in sporadic moments of free time, though I wouldn’t really describe this as “binging” per se.  It’s really just a more dynamic and more convenient version of time-shifting (first made possible by the VCR), hence it’s easy to see the business logic in releasing whole seasons on a single day rather than one episode per week.  In a subscription model using on-demand technology, time no longer matters to the distributor as a point of access in order to retain revenue from viewers, but this is really the only distinction between a Netflix and an HBO as producer/distributors. And assuming HBO replicates the same model in the near future, this will not make it suddenly an Internet business.

But what is an Internet business anyway?  It may seem obvious, but not if we pay attention to both the colloquial, and even some of the formal ways in which we talk about the Internet. For as long as I can remember, friends and colleagues have been referring to the Internet when it isn’t quite what we mean at all. And I am sure I have been guilty of this lapse in clarity more than once on this blog, though I do try to use the expression Internet industry when writing about behaviors, motives, or agendas of a specific group of major corporations as subjects distinct from the technology itself.

Consider the expression Don’t believe everything you read on the Internet, a cliché that predates our digital times, but one that seemed to take on a new connotation during the dot com days when those bubbly, revenue-free business ventures were grist for a justifiable mill of cynicism.  Of course, neither then nor today would it make sense to dispute the veracity of information that comes through any particular set of wires. If a 20-year news veteran writes a story, it certainly does not matter if her work is published in print, online, or both. In this sense, there is no the Internet, there is only the journalist, her integrity, and her talent.  But that doesn’t stop us, it seems, from occasionally thinking of the Internet as a subjective noun, which can entertain, produce, deliver, swindle, amuse, enlighten, or lie; rather than as something more akin to a prepositional phrase, which creates an association between the individual and one form or another of human enterprise, action, or even folly and predation.  Still, we often say in casual conversation, I got this off the Internet, Look it up on the Internet, or Buy it from the Internet, and so on, entirely dissociating the information, content, or product from the extraordinarily complex, capital and labor-intensive processes behind the ephemeral page.

We talk about connections and awareness in the digital age, but real awareness is often not a byproduct of the consumer-convenience and ad-driven design of Web 2.0. Consider the reductive nature just in the act of buying a smart phone online.  A single click represents mining five metals in at least four countries as well as eight rare earths found mostly in China; international trade agreements; human labor working in conditions of varying degrees of quality; global shipping protected by multiple state navies; and a legal framework of mind-boggling proportion. In the same way many schools and parents have in recent years found it worthwhile to teach children that food doesn’t come from the supermarket, it is perhaps even more necessary to teach them that absolutely nothing comes from the Internet.

With entertainment media, it clearly does not matter whether HBO’s True Blood transmits to a viewer’s TV via one type of signal while Netflix’s Orange is the New Black uses a different transmission technology. This has absolutely nothing to do with the viewer enjoying either program and even less to do with the process of producing these hit shows. And this is perhaps an oversimple, yet relevant, example as to why I think it’s about time we stop reporting the story of the copyright debate as one of Internet businesses vs legacy media producers, or Hollywood vs The Digital Age, or most especially as Creators vs Technology.  As with the smart phone example, copyright is just one component of a legal framework that enables the production of Orange is the New Black and, by the way, the Google search algorithm that makes it convenient to look up information about author Piper Kerman.

It should be abundantly clear that for all the shiny newness of the “Netflix effect” on the industry overall, none of these developments imply any clear mandate for substantive change with regard to a producer’s copyright interests in the works—or with their interest in mitigating the influence of illegal distribution networks (piracy). To the contrary, the fresh diversity of programming and flexibility of viewing options advanced by these new producer/distributors may be even more dependent upon protecting their distribution, derivative, and merchandising rights than with so-called traditional media business models.  Whether the cable plugging into your TV is coaxial or ethernet, the legal foundation that enables production of the shows and films you watch remains fundamentally unchanged—to say nothing of the fact that the technologies themselves are dependent on many of the same legal frameworks.

Nevertheless, the ideological battle rages on, attracting “Internet activists” toward a broad anti-copyright, anti-IP agenda, perpetuating the myth that there is a central conflict between technological or creative innovation and the purpose of protecting intellectual property. The rhetoric of these squabbles distracts from the more subtle—easily misunderstood—points of actual conflict among leading entities. Meanwhile, technological similarities among major players seem to cloud some very important distinctions in business strategies and practices.

Netflix built its business entirely within the regime of licensing existing works, providing a better rental service, staying ahead of consumer demand as high-quality streaming became technologically feasible, and then migrating into original programming.  That’s called being competitive and innovative. And with its production of excellent works in just the past few years, the company has grown its number of paying subscribers to nearly 60 million; it now has a market value just behind that of CBS; and it is rapidly expanding into multiple markets around the world.

The bottom line is that neither individual creators nor major media producers have any quarrel with technology, the Internet, or the future. To say otherwise is just silly. Filmed entertainment in particular is a medium driven from its inception by a robust cycle of technological innovation. Moreover, the major players in the changing market are simultaneously symbiotic and competitive.  Hence nothing about the IP interests of a Disney should be misrepresented as a generic rebuke every line of business in which Google has an interest, let alone as a rejection of technology in general.  It ain’t the tools, it’s how you use them.