Category: Politics

Copyright Advocacy in Turbulent Times

copyright war

It is admittedly difficult, maybe even a bit ridiculous, to think about a policy matter as arcane as copyright law when the headline story of the moment is an attempted coup d’etat—let alone one fomented by the President of the United States and endorsed by some Members of Congress. But against the backdrop of existential threat from within, I am also reminded why I believe a subject like copyright is so important:  first, because it exemplifies the hard truth that our democracy is built on fragile principles requiring careful and persistent stewardship; and second, because it expresses the almost quixotic hope among the founders that the nation might eventually be great enough to produce art and culture. In a different post, I cited this quote from a letter written in May of 1780 by John Adams to Abigail:

 I must study politics and war, that our sons may have liberty to study mathematics and philosophy. Our sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain.

Although Adams could not possibly envision the modern, technological media that would emerge in the late nineteenth century, his allusion to such delicate arts expresses that aspiration toward an American greatness that could one day be a nation strong enough to indulge in creativity and invention. Yorktown was still a year and half into the war’s uncertain future when Adams wrote those words to his wife. Thirty-four years later, during the war that some historians call the “second American revolution,” an adversary occupied a congressional chamber in the U.S. Capitol, which was still newly under construction. On August 24, 1814, Admiral Cockburn of the Royal Navy sat down in the Speaker’s chair and in a mocking, parliamentary tone asked his troops, “Gentlemen, the question is, Shall this harbor of Yankee democracy be burned? All in favor of burning it will say Aye!”

This anecdote appears in the Handbook of the New Library of Congress, published in 1897 to commemorate the grand opening of the beautiful Beaux Arts building—today the Jefferson Building—situated just east of the Capitol with its copper dome topped by the flame of liberty. Although the story has a whiff of mythologizing in it, the account of Cockburn’s farcical, legislative theater as a prelude to lighting up the Capitol is at least a metaphorically fair reflection of England’s disdain for the American experiment when they burned down icons that they noted had been so hypocritically built with slave labor.

The reason that story was published in the Handbook of the New Library is that the precursor to the Library of Congress was burned by the British as the library within Congress—a narrow skylit atrium of hardwood and wrought iron, originally located along the west wall we see behind the stage where presidents are inaugurated. The new library, as envisioned by Lincoln’s appointed Librarian of Congress Ainsworth Spofford, was not only meant to be a house for the people, but a repository for the latent genius of the people by collecting copies of works deposited for copyright registration. As cited in the book I published in November:

Immediately following passage of the 1870 Copyright Act, the library received just over 5,700 deposits, or roughly one work for every 6,600 citizens; by the peak year (for the century) of 1893, the library received just over 48,000 deposits, or roughly one work for every 1,360 citizens. So while the population nearly doubled in this same period (from about 38 million to about 75 million), creative output increased roughly fivefold.

To put it mildly, the goons who ransacked the Capitol have no better understanding of what the leaders of the Revolution hoped for America than they were clear about what they might ultimately achieve with their grotesque misadventure on the Mall. By the end of the nation’s first century, Adams’s modest hope that the United States would be strong enough to be creative was beginning to be realized. And one terrible irony of the present is that in so many areas, real American greatness—its capacity to invent, to create, and to reinvent itself—was alive and well the day Donald Trump told the nation that all he could see was “carnage.”   

It is no coincidence that the corporations most responsible for the aggressive assault on creators’ rights are the same companies now finally understood to have played a substantial role in cultivating that alternate reality in which too many citizens now operate. Mischaracterizing copyrights as barriers to access has been a key ingredient in Silicon Valley’s magic elixir they sold to the world as the “free flow of information.” And for years, they simply refused to acknowledge that truly dangerous disinformation flows just as freely and twice as quickly.

I jumped into this debate almost a decade ago because I believe that an empowered population of authors and creators is essential for a thriving democracy. In 2013, I wrote, “To put it whimsically, a great bulwark against tyranny would be a class of unusually wealthy poets.” Having now witnessed a closer brush with tyranny than many would have thought possible in the United States, I am more committed than ever to that particular kind of whimsy.

To Parler or Not to Parler: It’s About the Money, Stupid

When I first learned about Parler, my immediate, half-joking, comment was that it would make the FBI’s job easier. To the extent that could be true, some might say this is one rationale to keep the site online. But separate from the efficiency of having putative domestic terrorists gather in a single chat space, many parties have asked whether AWS rescinding its deal to host the far-right social platform—followed by Apple and Google dropping the app—is an example of cancel culture. Personally, I think it’s just cancel cult, and the so-called broader implications are mostly handwringing bullshit for one simple reason:  this is all about money.

The complaint brief in the lawsuit filed by Parler against AWS alleges breach of contract (which may be valid), and it alleges violation of anti-trust law on the grounds that, for instance, Twitter has also hosted divisive and incendiary content without losing its multi-year deal with same host provider. The brief highlights the fact that, especially after Twitter dropped Donald Trump’s account, AWS cut Parler off at the moment of its greatest growth opportunity as a competing social venue. The court may even grant Parler’s request for a temporary restraining order and instruct AWS to restore the site pending further proceedings. We’ll see what AWS presents in its response.*

But the premise of the anti-trust complaint, while it may prove legally tenable, most instructively emphasizes the fact that Parler was not designed as a “conservative” social site—a venture that many real conservatives would probably tell you is a losing proposition today. Parler was designed to capitalize on the seething, conspiracy theory insanity that boiled over on January 6th and is still boiling, and which may yet tear this nation and western civilization apart. It doesn’t even matter whether Parler’s founders are ideologues. The bottom line, as any terrorism expert will tell you, is that extremism is a money-maker.

Look at the scenes of all those dupes in Washington, and what do we see as a backdrop to the violence and vandalism? We see merchandise. It’s a goddamn football riot without the game. These idiots believe they’re “taking their country back” while profiteers, led by Trump himself, are simply using them as life-size action figures in the apotheosis of American capitalism gone astray:  Outrage Incorporated. “It’s 1776!” Ted Cruz tells them. Really? The patriots of ’76 didn’t even have uniforms, let alone flags, hats, tees, and sippy cups declaring their loyalty to a single man. Those patriots froze, starved, and bled barefoot to defeat the very idea of rule by a single man.

Amre Metwally, writing for Slate, says that we should all be “very concerned” about the implications of AWS et al dumping Parler. But why the hell should that be a concern? Parler is just more short-term opportunism profiting off the decline of democracy itself. What could possibly be the downside to its disappearance? It’s a business venture, and if violent extremism is finally a bad bet, that’s what conservatives traditionally call the “free market doing its job.” Major American corporations cut ties with Trump and certain members of the GOP—not out of altruism, but because existential threats to democracy are bad for business. It’s very hard to sell toasters in the middle of a civil war.

Metwally is correct to note the tech industry’s hypocrisy when he writes:

Last I checked, Google and Apple never chucked Facebook app downloads from their stores even though violence has most certainly been incited on Facebook time and time again. Tech platforms never rushed to block access to YouTube even after it was found that it helped radicalize the Christchurch shooter. Come to think of it—why wasn’t Twitter blocked from the Google Play Store or the App Store for allowing Trump to monopolize these radical sentiments for years until we reached this breaking point?

Fair enough, but also missing the point. It is true that for years the major internet players both practiced and advocated willful blindness to all manner of toxic content until we finally reached a breaking point. And they did this because it was profitable. Period. There was never anything principled about Google or Facebook or Twitter’s laissez-faire approach to site management. “Save the internet” was a bogus battle cry (like “Take our country back”) that was repeated across the political spectrum; and in that regard, we all have a little blood on our hands for believing it.

What we should be concerned about is the underlying fallacy (a mostly liberal one by the way) that suborns an enterprise like Parler due to a fundamentalist notion of the First Amendment—one as unconnected to constitutional principles as Ted Cruz invoking Bunker Hill to an angry, privileged, mob in 2021. Frank Pasquale writes in a must-read post:

There are at least two responses to the lies, racism, and violence at the core of the attack on the Capitol. One is to simply put faith in an unfettered marketplace of ideas, hoping that a critical mass of Trumpist Republicans will back away from the idea that elections are rigged for Democrats, that millions of false votes are cast, etc. But what the recent bans reflect is a dawning realization among technology firms that this marketplace of ideas is dysfunctional. It is not self-correcting—or at least it is not self-correcting enough to prevent a significant group of persons (with the guns and votes to cause real havoc) from acting on false beliefs that, say, the presidential election of 2020 was stolen, that COVID-19 is just a bad flu, that Democratic leaders are a cabal of child abusers, and so on.

A-freakin’-men, Mr. Pasquale. The difference between Parler and Facebook might be compared to the crisis in the Republican party right now. Parler, like Trumpism, intentionally aims to exploit civilization-destroying forces for profit (and power); while Facebook, like the meekest members of the GOP, naively allowed those forces into the tent assuming they would be modified by better angels. And this was also for profit.

Sure, we can have a discussion (if a forum for discussion exists in the near future) about the amount of market control held by Facebook, Amazon, Apple, Google et al. But that should be a traditional, antitrust conversation that—unless we are truly suicidal—should reject the idea that somehow the speech right means that two plus two equals nine. Although it is no surprise that there is money to be made by launching twoplustwoisnine.com, there is absolutely nothing wrong with letting ignorance fail or with starving extremism of oxygen. We have seen the results of the opposite view, and it is the end of everything. Fuck Parler. Better they lose their shirts than we lose a whole nation.

*UPDATE: AWS filed its response on 1/12. Having read it, I would now say the TRO seems doubtful.

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.