Category: Culture

Busy Copyright Week Update

Though most people can be forgiven for missing it, two Supreme Court Decisions and a District Court granting a motion for summary judgment made a fair bit of copyright news this week.  In a pair of unanimous decisions the Supreme Court settled two statutory disputes relevant to a rightsholders’ ability to enforce his copyrights.  And pursuant to findings at the Ninth Circuit Court of Appeals, the District Court for the Central District of California granted a motion for summary judgment against VidAngel for its infringement of major Hollywood motion pictures.

“Registration” Means USCO Approval 

In Fourth Estate Public Benefit Corp. v. Wall-Street.com, Justice Ginsburg wrote the opinion holding that there is no way for the Court to read the copyright statute §411(a) other than to mean that the Copyright Office must grant Registration of a work before a rightsholder may litigate to remedy an alleged infringement.  

This decision resolves a court split over the issue, with the counter argument contending that filing the application is tantamount to “registration” and that a rightsholder should be allowed to proceed with legal action while the USCO is processing the application. Ginsburg and the other eight Justices found that reading of the statute unpersuasive, but the opinion also recognizes the practical challenge faced by rightsholders given that it takes an average six to seven months to receive a Certificate of Registration.  

This is especially acute in a time when online infringement may be almost instantaneous, and it is not impossible that there may be some legislative response to address these issues, not the least of which would be increasing resources for the USCO.  That said, the House Judiciary Committee does seem a little busy right now.  (See further discussion here.)

“Full Costs” Means Less Full Than Some Hoped

From the opposite ideological end of the bench, Justice Kavanaugh wrote the opinion in Rimini Street v. Oracle USA, another unanimous decision settling yet another statutory interpretation, this time §505 pertaining to the meaning of the term “full costs.” At issue was the question as to whether recoverable legal costs under the copyright statute may extend beyond the six categories of “taxable” costs that a court may award to a litigant in a copyright case. 

After Oracle prevailed in its copyright infringement suit against Rimini Street, it sought $12.8 million to recover its costs for expert witnesses, jury consulting, and e-discovery, which are not enumerated under Title 28 federal statutes pertaining to the types of costs a claimant may recover.  For context, I recommend Kevin Madigan’s analysis posted at the Center for the Protection of Intellectual Property, in which he contends that this decision is an incomplete reading and, as a practical matter, may disadvantage defendants as well as complainants in copyright cases. 

VidAngel’s Flight Seems All But Over

Finally, in the major motion picture studios’ case against VidAngel, a California District Court, finding no triable issues of fact, granted the studios’ motion for summary judgment this week.  As described in posts here and here, VidAngel is the VOD service that provided unlicensed streams of major motion pictures with options to “filter” out the naughty bits—sex, swearing, blasphemy, etc.—its base of customers preferred not to see or hear.  

Although filtering is permitted by law with devices designed for that purpose to be used in one’s own home, VidAngel endeavored to construct a convoluted business model in order to contend that its process of copying, filtering, and streaming films to customers for what amounted to rental fees was nothing more than an extension of the individual consumer’s right to filter.  All of the sanctified streamer’s defenses failed, and the company is held to have infringed the studios’ exclusive rights of reproduction and public performance as well as violated the anti-circumvention provisions under §1201 of the DMCA for decrypting DVD and Blu-Ray disks in order to create the files necessary for its service.

I may write a more extensive post about the outcome in VidAngel, which is an instructive case on a number of levels, but one that sticks out at the moment is the company’s attempt to assert fair use in defense of its circumventing DRM pursuant to the DMCA.  As the District Court notes, there is no fair use defense for violating §1201, though one could easily make this mistake based on the confusion and debate surrounding this statute.  

The distinction is that the Copyright Office has granted exemptions from the provisions of this section of the DMCA for specific uses (e.g. education, commentary, research) that are likely to be fair uses.  This is not the same thing as asserting a fair use defense for circumventing DRM for a purpose not already exempted by the USCO.  And VidAngel’s purpose in making entire motion pictures available (minus a bit of skin and a few curse words) does not come anywhere close to being considered for such an exemption.

The Internet is Not (and never was) Paradise

I was reading an editorial the other day written by Stephen Witt for NPR shortly after the passing of John Parry Barlow in 2018; and it occurred to me that internet activists seem to fit one of two profiles—Mourners and Evangelicals. And both are full of shit.

Witt does an excellent job summarizing the early barefoot wanderings of the college-dropout, Grateful Dead lyricist, turned techno-libertarian prophet who would eventually co-found the Electronic Frontier Foundation …

It was 1985, and Barlow, not a computer person, did not know what “online” was. But he wangled an Internet account out of a Stanford academic — they were not available to the general public at the time — and began to anonymously visit Deadhead forums on Usenet, one of the earliest hosts for Internet discussion. Despite an apparently fatal lack of any STEM education, Barlow grasped the technology’s potential. “I had a religious experience upon encountering what was a very small online environment,” he said. “I felt that what I was looking at was something profoundly different than anything that had happened in the history of the human race.

The spirit of Witt’s article Tech Utopianism And Our Walled Gardens: Is It Time For A Jailbreak? places it among the many laments for the internet as a paradise lost.  Like other articles of its kind, Witt’s homage to Barlow harkens to an ideal that never existed—a cybernetic Eden, where the purity of human mind and spirit might have remained unsullied had it not been for the original sin of commerce that cast us into the hyper-monetized, surveillance-capitalized, barely-civilized landscape dominated by today’s billion-dollar platforms.  

Not surprisingly, Witt alludes to the fact that copyright infringement was a foundational rite of the new cyber-religion evangelized by the prophets; and it is just a little too perfect that, as an ambassador of the Dead (the most famous band to encourage bootlegging its live performances) Barlow and disciples viewed intellectual property theft as a pathway to the promised land …

… if information was instantly reproducible at no cost, only by creating barriers to open communication between private individuals could the now-artificial scarcity of copyright be maintained.  A true cyberlibertarian — and perhaps we should call him an anarchist — Barlow took the extreme position, denying that the state had the authority to limit peer-to-peer communication. This necessitated an abandonment of the concept of intellectual property, even if that proved corrosive to both the profit margins of large corporations and the meager income streams of small songwriters, including Barlow’s own.

I will admit that my cynicism here is colored by the fact that a world resembling an endless Dead show is my own version of Hell, but personal taste is also germane to the broader point that utopias always fail because they presume to impose a monolithic world view on everyone.  (One man’s Paradise is always another’s Purgatory.)  And that presumptuousness is certainly a running theme wherever digital activism embraces the anti-copyright agenda—too often insisting that all artists must adopt the “sharing” attitude espoused by The Grateful Dead, overlooking the nagging bugaboo that choice is the foundation of liberty.  

So, in regard to the internet writ large, Witt’s elegy fits the profile of the Mourner’s view of cyberspace—a resignation to the fact that utopia is gone and can never be rediscovered, and that any hope of building Paradise anew should be abandoned.  We cannot return and so might as well unplug. 

But while the Mourners have discarded the hope of returning to the Eden that never existed, their idealistic rhetoric remains in Activist 2.0—the Evangelicals, who now defend the status quo of the corporatized internet despite the fact that it allegedly destroyed the original garden in the first place.  The Evangelical is easy to spot.  She still clings to that original Barlowian sacrament of “sharing” content and responds to any proposal to protect copyright owners by declaring that [Insert policy here] will destroy the internet as we know it! 

Of course, the whole narrative is a lie—from Barlow’s catharsis to the present battle over the “soul” of the web.  As investigative reporter Yasha Levine states very pointedly…

…the truth is that EFF is a corporate front. It is America’s oldest and most influential internet business lobby—an organization that has played a pivotal role in shaping the commercial internet as we know it and, increasingly, hate it. That shitty internet we all inhabit today? That system dominated by giant monopolies, powered by for-profit surveillance and influence, and lacking any democratic oversight? EFF is directly responsible for bringing it into being.

Hence, the too-common refrain that we might “destroy the internet as we know it” is an odd rhetorical tactic insofar as it is not at all clear, from any point of view, why the internet we have is something worth preserving.  As a general observation, why is it rational to assume that the function of the internet, which has largely been ceded to the management of Google, Facebook, Twitter, et al, is exactly perfect as is and should never be changed?  By what measure, other than Big Tech’s profits, have we supposedly achieved our digital apotheosis?

Never mind the fact that protests against any type of copyright proposal invariably resort to hyperbole and disinformation (see claims that Article 13 will “kill memes”), but even if some new proposal were to change the internet, so what? As naive as I think the Barlow-worshipping purists were/are in the first place, we can at least all agree that their internet is not the internet we have, that the internet we have is dominated by big corporations and, therefore, hardly sacred.

That being the case, contemporary digital activists should drop the quasi-religious overtones when debating policy—stop talking about the internet as though it were holy ground that cannot be disturbed.  It is worth keeping in mind that every time the artists and creators have inveighed against their rights being trampled by the big internet platforms, the digerati have presumptuously lectured them that “change is good.”  Indeed it can be good.  And right now, what needs changing is the internet as we know it.

Maybe the Internet IS Just a Dumb Pipe

“Content is king” was the catch-phrase of the 1990s and the heady (headless really) days of the Dot Com bubble.  And although that stopped being a slogan with the resurgence of Web 2.0, it was still true.  Content was still king except the would-be tech giants figured out that they didn’t need to create content but instead just make someone else’s content available.  Whether these companies had any right to exploit said content did not matter since the telecom giants who preceded them had conveniently negotiated a liability shield (DMCA §512) for copyright infringement before anyone quite realized how a YouTube could become a massive infringement machine that prints money for its owners.

When rights holders complained that these platforms were infringers (or at least beneficiaries of infringement), the answer was always some variation on the themes …  It’s not us.  Its the users.  We don’t control what gets uploaded. We’re just a neutral platform.  And so on.  Thanks to that liability shield negotiated by Verizon, AT&T, et al in 1998, Google and the other major platforms got away with the circular logic that “the internet” is simultaneously “just a dumb pipe” and also a network of such inestimable value that no cyber-policy may be altered—other than, of course, by Google and the other major platforms.  They are at liberty to alter the internet all they want because they do so many nice things for us—and all for free!

In 2012, concurrent with the not-so-grassroots defeat of SOPA/PIPA, Google’s lobbying expenditures went from negligible to competing among the top five in the nation; and the major platforms also formed the Internet Association to advocate policy in its interests.  That’s business as usual, and industries have every right to form such organizations, but this new coalition of tech giants was also contemporaneous with the anti-SOPA narrative in which the Motion Picture Association of America a) had allegedly tried to force legislation that would “break the internet”; and b) represented “old thinking” about content, copyright, and digital-age piracy. 

Let us now leap over the past seven years to the present—a time when the major internet platforms—most demonstrably Facebook—have revealed many of the darker consequences of their hands-off, disrupt-culture approach to platform moderation.  Amid this still-developing narrative, came the big news last month—though it should not have been the least bit surprising—that Netflix would leave the Internet Association and join the MPAA.  Because content is still king.

As described in my post of October 2015, Netflix is not an internet company; it’s a motion picture studio that happens to distribute via the internet.  New opportunities to measure viewer data notwithstanding, the simple reality is that the more “tech” companies invest in original programming, the more they will naturally find common ground with the policy interests of the MPAA et al. In that regard, a January article in Variety speculates that Amazon—with its slate of multi-award-winning shows—could be next to join the big studios.  Either way, the swing of this pendulum does suggest a new premise:  that perhaps the internet industry does not have (to use the technical term) jack-shit to teach content creators about copyright or piracy—and let’s not even talk about whatever the hell the “economics of abundance” means.

In fact, if one looks at YouTube’s Copyright Match response to the realization that their own creators do not like having their videos infringed by other YouTubers, maybe the “new” industry actually has something to learn from the “old” one about protecting creative works.  Meanwhile, as the traditional media/entertainment companies continue to migrate toward streaming and other contemporary models of distribution, they will surely learn much from a pioneer like Netflix.  But this will not change the raw investments of time, talent, labor, and money required to produce new works, and so it will not diminish any producers’ interest in protecting and enforcing copyrights.  

In this context, I am reminded of a story from January of last year in which songwriter/performer Blake Morgan found himself having to explain to Spotify executives that music was in fact the product they were selling.  One might think this is not a very high mental hurdle to clear, but Morgan describes that some in the meeting became rather heated in their defense that, no, Spotify was the product.  Because, of course, we launch that app just to look at the interface?

Time will tell if there will be any significant future defections from the Internet Association, though its members are not without vested interest in a range of policy areas.  But to the extent that union was formed in response to proposals like SOPA and to advocate against copyright enforcement, the departure of members who are now major rights holders serves as a long-overdue reminder about the difference between creative works and the technological means to access or distribute those works.  As the platform owners love to repeat in their own defense against liability, the internet doesn’t produce anything; it’s just a dumb pipe.