Sirius XM Takedown of Stern/Trump Interviews Is Not Censorship

The implication that copyright is fundamentally a tool of censorship is a favorite theme among its critics.  They rarely miss an opportunity to ring this particular bell when the chance presents itself; and most recently, Cyrus Farivar, writing for Ars Technica, reported that Sirius XM filed a DMCA notice to have an archive of interviews between Howard Stern and Donald Trump removed from the blog site factba.se.  On cue, Mike Masnick at Techdirt was quick to describe this as “yet another situation where copyright law is being used to censor information that is in the public interest.”

Or maybe not exactly.

As a general note, it’s a pretty easy target, whenever material is arguably of historic or newsy significance, to make an emotional claim that the exigencies of copyright stand between the public and its right to know. But the hyperbole that is so often employed (e.g. Masnick’s saying the interviews are now in a “memory hole”) invariably suggests that copyright enforcement is tantamount to erasing information or sequestering it permanently from any form of public access.

In this regard, and for the discussion that follows, it’s important to note that just about every major news organization in the world maintains archives of works of historic significance and will license the use of this protected content for any purposes that require licensing. So, Sirius issuing a DMCA takedown notice in this case does not mean they’ve locked the content away for good.  In the meantime, if the public is desperately in need of insight into Donald Trump’s character, it seems amply covered.

Masnick states that the Ars Technica article cites “a bunch of lawyers” offering theories as to whether factba.se’s hosting of the radio interviews might be fair use. This bunch is actually four lawyers, all who have publicly espoused varying degrees of copyright skepticism, with opinions siding 3 to 1 that factba.se’s use would likely be held fair use.   Masnick then offers a mini analysis of his own, theorizing that hosting Sirius’s content in this manner would favor a finding of fair use under the first, second, and fourth factors.  And since neither Mike nor I are actually attorneys, let’s do this…

First Factor:  Purpose and Character of the Use

Under the first factor, Masnick states, “…the newsworthy nature of it and the purpose of the archive push it pretty strongly towards being transformative….”  I disagree.  In fact, what factba.se did was to make available exactly the same content that Sirius has the exclusive right to exploit under copyright.  Factba.se did not build upon the work to produce commentary or a new creative expression; and neither did it produce a transformative use akin to the Google Books research tool.  As was re-affirmed recently in the KinderGuides case, the fact that a rights holder has not yet made these works available does not forfeit the protection and allow another party to exploit the works in any matter normally protected by copyright.

Second Factor:  Nature of the Copyrighted Work

Under the second factor, Masnick notes the relative lack of “originality” in works that comprise interviews between Howard Stern and Donald Trump.  This is perhaps the strongest argument favoring a finding of fair use, although a court would have to do a more detailed analysis of the interviews themselves.  But as long as we’re making assumptions, there is ample precedent to demonstrate that copyright protects “original” works of a factual nature (e.g. all journalism); and given the irreverent and creative style that made Howard Stern the star he is, it’s very hard to imagine that a court would not find that these interviews meet the “creativity” standard for protection under copyright.

Third Factor:  Amount and Substantiality of the Work

We can assume that even the staunchest critic of copyright will agree that this use would likely fail under the third factor analysis because of course factba.se used the entire work.

Fourth Factor:  Effect of the Use on the Potential Market

Masnick states that this use “clearly” does not harm the market for the Howard Stern Show, thus implying analysis would tilt toward fair use under the fourth factor.  But here, he is either purposely or carelessly applying the wrong standard and adding more noise to the galloping confusion about fair use these days.  In a case like this, the court would hardly consider whether or not the use of Sirius’s archival material may cause harm to the market for current Howard Stern programs.

The court would instead consider whether or not the unlicensed publication of these archival materials threatens the potential market for Sirius to exploit these precise works under the exclusive rights of copyright.  For example, if Sirius wants to release a special boxed-set of the Stern/Trump interviews, it has the exclusive right to do so; and a use like the one made by factba.se would almost certainly be seen as threatening that potential market.  This concept of the rights holder’s potential market is often the most overlooked aspect of the fourth factor when it’s described in articles and blogs for general readers.  But potentiality is paramount to how the analysis is generally applied.

Once again, to stress the emphasis made by Judge Rakoff in his KinderGuides opinion, copyright’s exclusive bundle of rights is not a use-it-or-loose it proposition.  Simply because Sirius has not yet made these interviews available in this way does not grant factba.se or any other party the right to do so.  That the works may be considered newsworthy or historic does not substantially alter this underlying principle.

As is often the case, critics like Masnick are looking for censorship where it doesn’t exist.  At least not yet.  Yes, the fact that Trump is now president does elevate the historic significance of these interviews, but it is false to assert that this circumstance then demands an immediate release by a party that had nothing to do with producing the works.  If there were a substantive revelation in one of the interviews pertaining to matters of state, one could make a solid fair use argument for using that interview or portion in reportage.  But as we’re talking about Howard Stern and Donald Trump, I’m going out on a limb and guessing that the full archive is about 80% “locker-room” talk. And while the audience that wants to hear these works as news or entertainment is entitled to do so, the creators who produced them are entitled to exploit them like any other protected work.

American Identity is in the Music

My generation was raised on Schoolhouse Rock!. As such, we were not only told that America is a Melting Pot but were reminded of this on a regular basis in a song from that animated series, the melody of which is now ringing in the heads of any fellow Gen-Xers reading this post. Of course, the more mature truth is that America is not really a melting pot so much as it is a seething cauldron of incompatible ingredients that only manage to blend into something palatable after considerable simmer time. When The Great American Melting Pot episode first aired in May of 1976, it was just three months after violent race riots had broken out at a Florida high school over symbols celebrating the South in the Civil War.

In response to last weekend’s tragic events in Charlottesville, friends posted a number of comments and memes on Facebook contrasting the offense taken to NFL player Colin Kaepernick’s kneeling during the national anthem against the apparent dearth of outrage directed at Americans carrying Nazi flags in the streets. Granted, it’s hard to know the degree to which this particular hypocrisy really exists—I’d like to believe that most Americans across the political spectrum still denounce the waving of Nazi and Confederate flags in a violence-inciting, race-bating rally—but these allusions to the “Star Spangled Banner” resonate in context to the brewing clashes over nationalism and cultural identity. Kaepernick, who has now been joined by Michael Bennett of the Seattle Seahawks, has chosen an apt symbol of protest because the anthem is about as good an example as any of the distinction between American myth and American reality.

In 1991, playwright Tony Kushner sharply articulated America’s unique brand of hypocrisy in his AIDS-inspired play Angels in America when the gay, black character Belize says, “The white cracker who wrote the national anthem knew what he was doing. He set the word ‘free’ to a note so high nobody can reach it. That was deliberate.”

It’s a brilliant line.

Of course, the “white cracker” Francis Scott Key wrote the word free 34 years after the English composer John Stafford Smith wrote the high G to which Kushner refers. In 1780, the note corresponded with the lyric Venus in the song “To Anacreon in Heaven,” which was the official club song of the Anacreontic Society of London, a fraternity of mostly amateur musicians who would gather to enjoy concerts, drink, gossip, and drink more. As every American school kid is told, Key was moved to write the poem “Defence of Fort McHenry” upon seeing the flag still flying at dawn after heavy, overnight bombardment of the fort. Sung to the tune of “Anacreon in Heaven,” Key’s words would become the “Star Spangled Banner” but would not be adopted as the national anthem until 1931.

That the words of our anthem are American and the tune English—and the fact that they were paired during a war that is sometimes called the second revolution—reflects the fledgling creative voice of a new nation still writing its identity and still finding its place in the world. As the copyright critics love to say, “America is a pirate nation,” by which they usually refer to the fact that the book printers, shortly after independence, made a habit of pirating English books rather than pay to publish domestic authors. This is true. And had America remained a pirate nation rather than invest in its own creative capacity, the character of our society—and most likely our democracy itself—would be the worse for it. Because the voice that emerged, and which took nearly all of the nation’s first century to come into its own, is unambiguously multicultural, no matter what the bigots think. There is no such thing as “white male Christian” America, and there never was. Just listen to the music.

In fact, before “The Star Spangled Banner” became the official anthem by an act of Congress in 1931, the unofficial national song for many citizens and leaders was “America the Beautiful,” the lyrics of which are a poem written in 1893 by Katherine Lee Bates, a 19th century feminist who might have been gay. Conservative factions have occasionally lobbied for “God Bless America” as the national anthem because it places God in the center of the action, but this would provide little comfort to the kind of “conservative” on display in Charlottesville, since that song was written by a Russian immigrant jew named Israel (Irving) Berlin. (On a side note, Berlin also wrote “White Christmas,” and believe me, American Christmas celebrants would have precious little music to enjoy without Jewish songwriters.) Ironically enough, even though proposals from liberal groups to make the national song “This Land is Your Land” would be a non-starter, Woody Guthrie’s music is arguably the most American sound in the bunch. Though it is admittedly a bit jaunty for any kind of solemn occasion.

As students of the Enlightenment, the Founding Fathers understood that we would never get a seat at the grown-ups’ table of nations without fostering cultural and scientific enterprise, which was a pretty ambitious dream for a war-weary population of some three million farmers spread across an area of about 340,000 square miles. But what the hell? They had just won a revolution that should not have worked by any sane analysis and then sat down to write a user’s manual (a.k.a. the Constitution) for operating a society unlike any that had ever existed. Why not hope for great invention and art while they were at it? John Adams, in a letter to his wife Abigail dated May 12, 1780, expressed his hope for the country to attain intellectual and artistic stature thus:

“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.”

Adams’s implication that America’s progress toward maturity would be reflected in its capacity for increasingly refined creative and cultural enterprise was prophetic, except for his references to European classicism. He could not have imagined the extent to which our major contributions would be unequivocally modern, technological, and culturally diverse—that the American voice would be defined not by statuary, tapestry, and porcelain so much as by movies, theater, TV, and sound recordings that would blow the church doors off their hinges, making new messiahs out of rock stars and rock stars out of inventors.

In this sense, I think “The Star Spangled Banner” became truly American when Jimi Hendrix played his electric guitar solo version at Woodstock in 1969. Simultaneously patriotic and revolutionary, Hendrix’s tortured virtuoso (significantly instrumental and electric) synthesized the aristocratic and tight-assed “To Anacreon in Heaven” with the sins of racism, the self-betrayal of the Vietnam War, and the psychedelic explosion of counter-culture into a performance that told a much deeper, more painful, and more complex truth in the American-born language of rock-and-roll. This sound, which would not exist without the American slave diaspora, traveled back across the Atlantic, helped bring the children of WWII out of the rubble, and was even returned to its own roots by a new “English invasion” of the United States. This produced an artist like Freddie Mercury, who died of AIDS, and whose recording of “We Will Rock You” has been the unofficial anthem of every NFL game for years.

In a 2016 documentary about world-famous photographer Harry Benson, called Harry Benson: Shoot First, the artist discusses a photograph he took in Vietnam depicting a pair of wheelchair-bound veterans shaking hands—one American the other Vietnamese. Benson tells us that the Vietcong vet said to his former enemy, “We used to sneak up on your positions in the dark, not to kill you, but to listen to your music.” If that doesn’t say something about where our better angels live, I’m not sure what does.

Google Down-Ranks Real News

Photo by enriscapes

As alluded to in yesterday’s post, the 2016 shock to what we might politely call political orthodoxy provided a boost to mainstream news subscriptions. “The [New York Times] added 276,000 net digital-only subscriptions in the final three months of 2016, the best showing since it implemented its paywall in 2011. In the weeks immediately following Mr. Trump’s election in November, subscriptions increased tenfold compared with the previous year,” wrote Shannon Bond for Financial Times in February.  Similar spikes occurred at The Washington Post and other traditional news sources. So, if nothing else, the bizarre theater of obfuscation and Twitter rants coming out of the new administration seemed at least to rekindle millions of Americans’ desire for credible reportage.

But get this…

Gerry Smith for Bloomberg reports that when The Wall Street Journal blocked Google users from reading its articles for free, its subscription business “soared” only to see this gain countered by a 44% drop in traffic from Google search.  It turns out, according to Smith, that Google’s algorithm prioritizes free content over paid content.  Assuming this is true, there’s a whole lot wrong with it, beginning with the fact that this belies Google’s boastful raison d’etre to “organize the world’s information” and deliver search results based on quality and relevance.

If the algorithm looks for free content first, this suggests that fake news and other junk content will be consistently prioritized over the WSJ, The New York Times, The Washington Post, The Daily Beast, and so on. Not only does Google’s policy in this case stifle these organizations’ flexibility to choose their own strategies for financial survival, but for the general public, it exacerbates the already toxic brew of bad information that is, at this point, literally threatening democracy itself.  And for what?

Money of course.  Google makes money by serving ads to content that users can more readily access without going through paywalls.  Consequently, ConspiracyIdiots.com makes it into the top results instead of, y’know, news—at least according to what Bloomberg is reporting. “The Journal’s experience could have implications across the news industry, where publishers are relying more on convincing readers to pay for their articles because tech giants like Google and Facebook are vacuuming up the lion’s share of online advertising,” writes Smith.

I’ve gone so far as to assert that we’ve actually lost the “information revolution.” The promise of a more enlightened society through digital technology has hardly been fulfilled, but we do have some very funny memes to stick on the fridge of history.  Given the extent to which the current narrative has been hijacked by a strange confluence of bored trolls and professional data manipulators, a sane person can be forgiven for deciding that it’s about time to unplug.  A recent report by the Data & Society Research Institute on the influence of—I guess we can call it “troll culture”—on even the mainstream media says the following:

“Mass media has greatly profited off the appeal of conspiracy theories despite their potential for harm. Network news channels feature ‘documentaries’ investigating theories without fully refuting them. In 2011, when Donald Trump began promoting the “Birther” conspiracy theory, claiming President Obama was born outside of the United States, mainstream news outlets like CNN and Fox News covered these claims extensively. Out of this environment, an entire industry of conspiracy and fringe theory has emerged.”

The report delves into the intricate network of internet subcultures described as “an amalgam of conspiracy theorists, techno-libertarians, white nationalists, Men’s Rights advocates, trolls, anti-feminists, anti-immigration activists, and bored young people,” who are directly influencing the narrative that many citizens around the world think of as the truth.  And this is bad enough.  “Google says its ‘first click free’ policy is good for both consumers and publishers. People want to get the news quickly and don’t want to immediately encounter a paywall,” writes Smith.

Sound familiar?  What’s good for Google is invariably “good for consumers.” And consumers invariably buy the pitch for a while.  Free?  Yeah, free sounds good.  Until it turns out that free actually a cost. Sometimes a very dire cost—like millions of voters who would sooner believe in alien abduction than climate science. And the point of the above quote about television news creating entertainment out of nonsense is that sensationalism will be the only thing left, if business models no longer support investigation, travel, research, fact checking, and other expensive human labor required to deliver quality journalism.  Add to all this that Google search will apparently down-rank legitimate news because it isn’t free?  Damn.