Category: Culture

The Internet Industry Should Not Pick the Next Register of Copyrights

Even under normal circumstances, anyone can be forgiven for missing the memo that by the end of this month, the Librarian of Congress, Dr. Carla Hayden, will make her pick for the new Register of Copyrights. The process has been going for so long that I assume that at this stage Dr. Hayden has her choices down to a handful of candidates or fewer on the shortlist. And while I do not know who the candidates are or, therefore, anything about their views on copyright, I do know that there remains a substantial effort by well-funded parties to alter the foundational principles of American copyright law. And not in the interest of creators or society in general.

Ever since the internet revolution promised to “make the world a better place,” the aggressive headline adopted by copyright’s most prominent critics has been that “copyright is broken” and needs “rebalancing” in the digital age. Unfortunately, this egalitarian sounding notion has proven to be insidiously unbalanced, skewed toward the interests of major internet platforms to the continued detriment of authors of creative works. Especially independent authors.

By any sensible observation, the big internet companies are doing just fine, while creators’ rights are being trampled in cyberspace. So, if there is truly any rebalancing to be done, it cannot justifiably be a recalibration toward a more platform-friendly direction, as evangelized by many prominent academic and institutional copyright skeptics.

Technological Change is Nothing New to the USCO

But even if those market realities were not plainly observable, any suggestion that the next Register must be more adept than their predecessors at “balancing” new technologies with the rights of authors should be dismissed as ahistorical rhetoric. Balancing technological innovations with the rights of authors is not a novel core competency for the U.S. Copyright Office. From the moment the first Register was appointed in 1897, the newly created Office began immediately grappling with the technological inventions that were already transforming the nature of copyright in the late nineteenth century, and which were about to catalyze a wealth of diverse cultural expression in the twentieth century.

Register Thorvald Solberg, who was not even an attorney, was arguably the principal architect of the 1909 Copyright Act, the first truly modern (i.e. technologically savvy) copyright law, not only in the U.S., but possibly in the entire Anglo/American copyright lineage up to that time. As scholar Zvi S. Rosen notes on his Mostly IP History blog, Solberg diligently studied every extant and proposed copyright law in the United States between 1789 and 1904. At the same time, this deep dive into the purpose and nature of copyright was contemporaneous with rapidly changing technologies that were dramatically transforming the creation, distribution, and use of works of authorship.

Advances in printing methods, photography, phonographs, motion pictures, and player pianos all contributed to a technological revolution no less provocative at the threshold of the twentieth century than the arrival of the public internet and related digital technologies have been at the threshold of the twenty-first. But until the 1909 Act, prior revisions to American copyright law were somewhat ad hoc legislative tweaks that had yet to truly reckon with the changing nature of a law that originally protected maps, charts, and books.

For instance, when photography was added in 1865 and then challenged as a protectable medium almost twenty years later, arguably nobody in Congress had really considered the nature of authorship in this first mechanical means of creating images. Today, many of the themes from that seminal confrontation with photography are repeated as we consider the implications of new machine-made works in an age of artificial intelligence. Thus, the contemporary technological landscape may be fresh ground for legal theorists, but it is not wholly uncharted territory. “The Register of Copyrights has long been tasked with dealing with the intersection of copyright law and technology,” Rosen commented to me by email. “In fact the 1909 Act’s adoption of technological neutrality – use of ‘all the writings of an author’ instead of an enumerated list of types of works – represented a recognition that the Register would be tasked with evaluating whether a new type of work was a writing of an author.”

Solberg’s historical analysis of the entire legislative history, including the thinking behind every proposal up to 1904, set the tone for what the role of the Register would become—not just a chief clerk managing registrations and deposit copies, but a thought leader helping to define the contours of copyright law in context to the dynamic ways in which works may be produced, used, and made available. The next Register should be someone who keeps faith with this tradition, and certainly not someone who sees the Copyright Office as a forum for radical revision of legal doctrine, under the misguided belief that the digital age asks unique questions rather than variations on familiar themes.

Changes in Distribution Methods Do Not Upend Copyright’s Principles

Although the most powerful internet and technology companies like to tell us that their platforms and apps “change everything,” we must remain mindful of the fact that many of these shiny new toys have actually been less revolutionary in a copyright context than the technological changes emerging during Solberg’s tenure. After all, most internet platforms are primarily just new methods of distribution (or in copyright terms “making available”) and this hardly recommends a holistic rethinking about copyright’s nature or purpose.

For example, Spotify and other music streaming platforms, while nearly obliterating both broadcast radio and recorded music, have in no way altered the nature of music making or the cultural value of music listening. But these companies have exploited pre-internet copyright regimes in order to direct most of the financial value in sound recordings into their coffers, while leaving most music creators a pauper’s stake in the all-digital market. So, just in regard to this one category of creative works, any suggestion that copyright needs “rebalancing” in favor of the internet giants is as immoral as it is economically untenable.

Claims of Imbalance at the USCO Have Been Greatly Exaggerated

Readers may remember (though it seems a trifling matter today) that when Dr. Hayden was first appointed Librarian in 2016, the anti-copyright crowd became positively giddy at the prospect that she was a crusader determined to fix everything they allege to be “broken” in copyright law. I wrote at that time that the Librarian has never been the de facto copyright expert in the United States—not when Librarian Ainsworth Spofford first consolidated registration under the control of the Library in 1870, and not when the Register position was first created in 1897.

That same misguided anticipation of Dr. Hayden as presumptive copyright “reformer” practically effervesced when then Register Maria Pallante was rather suddenly, and mysteriously, dismissed; and this was because Pallante had become the focal point for copyright critics endeavoring to accuse the Office of being “culturally captured” by major rights holders. But even a peek under the surface of those claims suggests that anyone in the Register’s position who was (heaven forbid) a proponent of copyright, would have been likewise accused.

For example, in contrast to many shrill accusations of cultural capture and bias in the DMCA Section 1201 Triennial Rulemaking, I would challenge anyone to read the reports and show how the USCO has failed to largely favor petitioners seeking reasonable exceptions under those provisions. Or one could look to the USCO brief in the Fourth Estate case (2019), siding with tech industry and library amici on an important procedural question of registration. The list goes on, but the point is that we are justified in asking whether certain parties really want a “more balanced” Register or want a Register who is ideologically hostile toward copyright?

That question may be rhetorical, but it is no exaggeration. It alludes to a longstanding and still simmering debate in copyright history. Those who view copyright as a necessary evil—as a mere privilege granted to authors in order to get what society wants from them—naturally approach the law quite differently from those who view copyright as a matter of justice, a natural right of creators, but one with certain limits. The truth is—and public opinion supports this all the time—copyright is a bit of both. Most people, even if they are not versed in the law, consistently show that they discern both the inherent justice of authorial rights and the utilitarian nature of market incentives to produce and distribute works.

As I say, I do not know who the Register candidates are. But to the extent that Dr. Hayden seeks a fresh perspective in the current market, I hope she understands that where new legal thinking is needed, it should be to ask how we can better protect individual authors against massive, exploitative technology companies. And certainly not the other way around.

Photo of Minerva. Handy, Levin C, photographer. Congressional Library. Minerva. Washington D.C, ca. 1897. Photograph. https://www.loc.gov/item/2013646342/.

Rockin’ in the Free(booting) World: Neil Young v. Trump for America

Recent reports that Neil Young is no longer asking or insisting that the Trump campaign stop using his music, but is instead suing Trump for America for copyright infringement, highlights the extent to which this longstanding controversy between artists and politicians has heated up in recent years. It is a subject that overlapped recently in the Senate IP Subcommittee hearing on the DMCA and fair use.

It is too early to say whether Young’s infringement complaints against the Trump campaign have legal merit because this will depend on facts we do not yet know for certain. For instance, when a candidate (or anyone) publicly performs recorded music, this is typically covered by performance rights licenses that are either paid by the venue(s), the party(ies) using the music, or both. These licenses are compulsory, meaning the copyright owners cannot refuse them as long as the users are in compliance.

But if a political campaign uses music in a commercial, or even uploads video to the web that was captured at a live event (e.g. the candidate waving at the crowd while a specific song plays), that requires a whole other license, and one that is not compulsory. Further, if a candidate uses a song in such a manner that it begins to acquire the feel of campaign theme music (e.g. “Don’t Stop” and Clinton), the creator(s), if they do not wish to endorse the campaign, can sue under the Lanham Act for infringement of their right of publicity. As yet, Young has not asserted his publicity right, and it remains to be seen what will be discovered vis-à-vis his copyright claims against Trump’s use of the songs “Rockin’ in the Free World” and “Devil’s Sidewalk.”

Of course, none of the legal technicalities quite get to the heart of the matter for musical artists. After the Trump rally (flame-out?) in Tulsa, the Rolling Stones and the Estate of Tom Petty also demanded the campaign stop using their music, with the Stones at least threatening to file suit. And even though the performance rights licenses technically cover campaigns in most cases, there is something to be said for the fact that the original purpose of those licenses was primarily to cover entertainment music as a medley of tracks played at a public event or at a restaurant or bar—or a venue like an open mic where guest musicians might perform a variety of cover songs.

All those uses are clearly different from a scripted moment at a campaign event, when a political operative intentionally plays a song on cue, with the purpose of galvanizing the crowd or emphasizing a particular theme or attitude—and usually based entirely on the chorus. On that note, it is germane to this topic that the only way to harmonize Trump’s idea of American exceptionalism with Neil Young’s verses about junkies and children suffering in the streets is if those dark images represent a kind of mission accomplished statement by Trump and his acolytes.

More likely, Trumps use of “Rockin’” is a classic case of political figures (or corporate users) playing a song solely for its chorus while ignoring the verses. Only in this instance, it happens to be profoundly Trumpian to completely miss the fact that Young is being sardonic, saying that the free world ain’t exactly rockin’. More bizarrely, Young takes direct aim at the “kinder gentler” rhetoric of George H. W. Bush in 1989, which was, in reality, both kinder and gentler than the raw mean-spiritedness and blatant ignorance of the Trump administration. Of course Neil Young doesn’t want his song prominently associated with Trump’s message. And, it turns out, neither do a lot of popular musical artists.

As discussed in this post about Mike Huckabee being sued for using the song “Eye of the Tiger” (which his campaign settled for $25,000), when orchestrated political theater appropriates a musical expression to incorporate into a given message, this does bridge the artist with the politician. In copyright terms (although there is no such license), one can almost think of these moments as “live synch” events. And invariably, these moments are now all captured on video and uploaded by a campaign to their social pages, where they become literal “synch” events that require the aforementioned non-compulsory license.

Given the fact that the compulsory performing rights license was the result of the DOJ finding both ASCAP and the NAB guilty of anti-trust practices back when radio was new, it is little wonder many music creators want to reform or abolish the compulsory license regime. And if there were ever a serious conversation about such reform, it should naturally influence the evolving dialogue about the use of works by political speakers in the digital age. Copyright is not exclusively about compensation; it can also about preserving the integrity of expression and proscribing the misuse of an expression to make statements anathema to the artist’s vision.

That should not be confused with a fair use that an artist may despise, either because the use is critical, parodic, or transformative in some way that the original creator finds personally offensive. Political uses of works, like those at issue for Young, do not generally fall into these types of fair use considerations.

In my post about the fourth DMCA hearing before the Senate IP Subcommittee, I mentioned that attorney Matthew Sanderson called political use of works “paradigmatic fair uses.” But notwithstanding the limitations of congressional testimony, I would argue that was too broad a statement by some margin. Just because political speech is paradigmatically protected speech under the First Amendment, that principle does not make political use more amenable to a finding of fair use. Under factor one of the fair use test, the purpose and character of the use, a political campaign should not (and very likely would not) be afforded any more deference than a news commentator, a critic, or a creator adding new expression to the original work.

In fact, I would go a step further and say that political campaigns have less in common with exemplary fair uses and are more comparable to ordinary marketing and advertising of goods and services. That is, after all, what a political campaign is:  marketing a candidate. And advertising is almost wholly incompatible with fair use, as it is arguably the paradigmatic forum requiring licenses to use creative works. Add to this the fact that there are rules prohibiting misrepresentation in advertising a can of paint and no rules requiring a politician to tell the truth, and of course copyright owners are going to bristle at unlicensed uses of their expressions in political messaging.

So, if it turns out that Trump for America lacks the relevant licensing at issue in Young’s lawsuit, the campaign would (and should) have a hell of a time trying to present a fair use defense. Huckabee attempted to do so in the above-mentioned example by claiming that his playing  “Eye of the Tiger” at a rally for Kim Davis* was for a purely religious rally (for which there is a statutory exemption) that was not part of his campaign. But the fact that Huckabee for America settled for twenty-five grand suggests that his legal counsel did not see a viable path forward in Huckabee’s sudden appetite for the separation of church and state.  

If I interpret the nature of Young’s complaint correctly, it is similar to the Huckabee example—that “Rockin’” in particular was not just played as background music but was prominently and repeatedly performed such that Young’s voice has been too-often used to speak for Trump. In the end, copyright litigation may or may not offer the remedy the singer/songwriter seeks, but it should be clear that the use of creative works in political messaging can very easily cross the line to become coerced speech. So, whatever the best remedy might be, any defender of the speech right and authors’ rights should agree that a remedy is needed. 

*Davis was the Carter County, KY clerk who was jailed for refusing, in contravention of the law, to provide a marriage license to a same-sex couple. Huckabee staged a support rally for her outside the Grayson, KY detention center on the day of her release.

DMCA HEARING IV – Contemplating Fair Use

With the first three DMCA review hearings before the Senate Subcommittee on IP, it was fairly easy to identify the salient matters most likely to survive beyond this inquiry period and become part of the substantive debate on possible legislative revision. For instance, the need to more clearly define constructive, or “red flag,” knowledge in Section 512 is a recurring theme, at least from the rightsholders, and it is a problem that is at least conceivable as a legislative fix.

But in regard to the most recent hearing, held on July 28, it is little tougher to make an educated guess as to what may come of it. And this is partly because the topic itself is a tricky one that inevitably spills over into matters not directly pertinent to the DMCA. The title of the panel is How does the DMCA contemplate limitations and exceptions like fair use? And although Professor Jane C. Ginsburg of Columbia Law School answered that question about as directly as one could—outlining the ways in which Section 512 “accommodates” fair use, and discussing the efficacy of same—my general takeaway from hearing overall was that it seems pretty difficult for any legislative fix to alleviate the tension between DMCA and fair use.

Keep in mind that the DMCA was a deal hammered out by very large, corporate interests. The online service providers (OSPs) at that time, mostly major telecoms, wanted immunity from civil suit for the copyright infringements users would inevitably commit. The notice-and-takedown provision of 512 was the compromise solution for rightsholders to remove those infringements, and the counter-notice provision was created in order to restore material taken down in error.

While it would be wrong, without supporting evidence, to assert that Congress never contemplated nuanced, “close calls” like fair uses in 1998, it is generally undisputed by all parties that Congress did not fully anticipate the scale and speed at which copyrighted works would be uploaded to online platforms over the past 22 years. Let alone uploaded repeatedly by multiple users, or the monetary value of all that infringing activity to a major platform owner. Consequently, it seems reasonable to conclude that Congress likewise could not quite have imagined a digital landscape in which tens of thousands, if not millions, of individual rightsholders and users would be expected to become literate in the fair use doctrine.

Whether this also means that Congress expected that there would more often be fact-based incidences of error in takedown notices (e.g. wrong party, wrong material, non-copyright complaints, etc.), we cannot say for certain, but these are the type of error that require no education in fair use, or any other subjective legal doctrine, in order to file a valid counter notice. Although 512 may not have been written with individual, lay users in mind, it is certainly the case that independent creators and users of works have long been left to fend for themselves, filing their own notices or counter-notices, and trying to understand fair use—a body of judge-made law about which judges disagree with some frequency.

Fair use, as I will soon discuss in greater detail with regard to Google v. Oracle, is a consideration of both fact and law, and if its principles can be slippery for courts and attorneys to hold onto, it can certainly be tricky for the average rightsholder or user. Meanwhile, amid the general chatter on this subject, OSPs, digital rights groups, and users tend to complain that fair uses are removed all the time, while rightsholders complain that users make erroneous fair use claims all the time. And without question, both groups are correct at least some of the time. Neither independent rightsholders nor users—and certainly no parties acting in bad faith—can be counted on to be “right” about fair use all of the time, least of all through the constrained mechanisms of the notice/counter-notice provisions of the DMCA.

Because the committee asked a difficult question, it was not surprising that the witnesses covered a lot familiar ground that, while important, is either not specific to fair use or not specific to the DMCA. For instance, lead counsel for the National Press Photographers Association, Mickey Osterricher, described various ways in which the “whack-a-mole” problem does almost immediate and lasting harm to the value of news photography and video. This is an archetypal failure of the DMCA’s takedown provision to protect individual authors, and while it is not directly connected the inquiry into the contemplation of fair use, it is a problem often exacerbated when users make overbroad or erroneous assertions of fair use in their counter notices.

For instance, Osterricher’s reference to the devaluation of photojournalism, through unlicensed copying and distribution online, is related to a fair use question that was raised in the hearing about the use of works by political campaigns or advocacy organizations. Although attorney Matthew Sanderson, in his testimony, referred to these examples as “paradigmatic fair uses,” that may be a bit overstated. If the owner of a photo sends a takedown notice targeting a campaign video that contains her image, this could be a wrongful takedown targeting the candidate rather than a copyright infringement, but it is more likely to be a proper takedown targeting an infringement, independent of the author’s feelings about the candidate. Or, if the work being used is strongly associated with its creator(s) identities, like a famous song, there is the added dimension of coerced speech, which is potentially more serious than copyright infringement alone.

All of that is by way of saying that a review of DMCA’s mechanisms cannot easily hope to reconcile a lot of complex (often fraught) fair use questions, which will always be a case-by-case consideration. In the meantime, though, GRAMMY-winning, gospel singer/songwriter Yolanda Adams, in her testimony, did offer an old-fashioned, low-tech solution to many of the conflicts that arise between artists and political groups:  ask permission. “Musicians run the spectrum of political views,” she says. “If candidates want to use music in their campaigns, work with us – the artists and songwriters – to find the right match.” This is solid advice that users other than political operatives should strongly consider.

In fact, the low-tech (i.e. human) solution would probably alleviate a lot of the tension that exists between rightsholders and users, and perhaps loosen some of the tension between the DMCA and fair use. If I had to guess, I would say that rightsholders have two major problems when it comes to this part of the discussion. They suffer most acutely when professional users—be they political campaigns or ice cream companies—make use of works without license; and they suffer broadly when the major internet companies, through their advocacy networks, promote an expansive rhetoric about the fair use doctrine, resulting in even well-intended users making erroneous fair use assumptions. This also happens to get users needlessly sued, by the way.

If we return to Osterricher’s advocacy of visual journalists, appropriations of these works will invariably comprise at least some users—both professional and non-professional—who assume that because they are engaged in helping to disseminate “news,” their uses of unlicensed images are naturally fair uses. Many different types of users chronically fail to recognize that those exemplary terms named in Section 107 of the law (e.g. “news reporting, teaching, parody”) are all subject to conditions and considerations that further refine the terms within the intent of fair use.

At what is arguably the opposite end of the spectrum, it was easy to be sympathetic to musician Rick Beato’s testimony when he described his music education videos on YouTube. For instance, he mentions performing ten seconds of a Beatles song in order to teach viewers how the piece is constructed, and he cites this as a typical example of a video that may be targeted by a large rightsholder using automated systems to identify unlicensed uses of their musical works.

Beato’s description strikes me as fitting well within the spirit of fair use, if not the application of the exception to date. Historically, a fair use for teaching applies to physical classroom settings. But as recent events have underlined, we may need to broaden our definition of “classroom” to the virtual learning environment, and it does seem plausible that fair use could embrace the kind of teaching Beato does on his YouTube channel.

Having said that, though, once we expand the “learning environment” to the internet, we likewise expand the aforementioned confusion that already exists among even well-intended users of works. The word teaching will be defined too broadly in the mind of many users. In 2015, I wrote about a friend who made this very mistake, presuming a fair use of some photographs because she thought of her blog as “educational.”

It seems to me that there may be solutions to the Beato example that could exist parallel to the DMCA. For instance, a registry of channels that intend to consistently use works in a fair use manner so that the major rightsholders can whitelist these channels? And this would not prevent auditing the channels for compliance. The copyright critics may gasp, of course. A user should not have to seek permission for fair uses! In principle, that’s true, but in reality, for every channel like Rick Beato’s, there are thousands of YouTubers who are merely infringing, full stop. And we need Google-scale solutions for Google-scale problems.  

Relatedly, Professor Ginsburg endorsed, or at least alluded to, the possibility of an alternative dispute resolution function within the mechanisms of 512, designed solely to resolve fair use questions. This echoes the USCO in its report on Section 512, published this May, though is not clear whether an ADR provision specific to DMCA would be seen as redundant to the provisions of the CASE Act, if it is ever passes.

Regardless of the CASE question, it seems that Ginsburg and others are looking for solutions to address the conflict inherent to the time period after a counter-notice has been filed to restore allegedly infringing material. At that point the rightsholder must either prove he is taking legal action against the respondent, or the material will be restored within 10-14 days. “That is a tight deadline for rightholders, but potentially a devastatingly long one for fair users,” Ginsburg stated.

So, it is understandable why one might wish for an ADR mechanism to at least provide guidance on the probability that a use is either a fair use or not as a step prior to issuing a takedown. How exactly one harmonizes this persnickety area of U.S. law with global platforms is a question I cannot answer, though again, Ginsburg recommended that Congress monitor the efficacy of newly-passed provisions in the EU, where some of the largest platforms will be required to preclear rights before hosting user-generated works. Although labeled the “censorship machine” by European critics, the provision, Article 17 of the Single Market Directive, passed into law in 2019, but not yet into practice. And the likes of Google are far from done fighting compliance. So, we’ll see what happens there.

In case you can’t tell, I’m pretty skeptical that there is much Congress can do to better harmonize fair use and the DMCA, though I do believe there is much that can be done to both tweak the mechanisms in DMCA and mitigate bewilderment about fair use, and this may result in better balancing the two. Above all, the major platforms that have reaped billions in ad dollars while hosting infringing material, as it ebbs and flows across their platforms, have often camouflaged their pecuniary interests by claiming to defend fair uses on behalf of their users. 

But fair use cannot be so easily generalized. And if a platform like YouTube cannot, under the terms of the DMCA, be held responsible for monitoring its site for infringements, how can it possibly quantify the number of fair uses on the same platform? Hence, it seems that fixing the gaps in 512 where platforms have managed to slip through congressional intent to impose some burden (like constructive knowledge) may have the added benefit that these same companies will devote less energy toward expanding the fair use doctrine until it swallows copyright entirely.