Category: Copyright

White Noise Story Generates White Noise on Copyright

TorrentFreak recently reported a story about Australian music technologist Sebastian Tomczak receiving several copyright claims on a work he created and uploaded to YouTube. The work itself is ten hours of white noise he recorded using the noise generator built into the audio application Audacity. Tomczak’s interest, as described by Andy at TF, is “listening to continuous sounds of various types, and how our perception of these kinds of sounds and our attention changes over longer periods — e.g. distracted, focused, sleeping, waking, working, etc.”

After Tomczak posted his video to YouTube, it was targeted by four rights holders claiming his track as their property; and all of these entities availed themselves of the Content ID option to monetize his video. Initially designed as a compromise solution, a Content ID account is available to rights holders who meet certain conditions, which enables automated identification of a work being used by another YouTuber. Once flagged, the account holder has the option to let the use go, request a takedown, or monetize the use by sharing in any ad revenue generated by the use. Needless to say, the system is not perfect, and among its flaws is that it may misidentify a work. Not surprisingly, many of the comments attached to the TF story viewed the white noise example as yet another example of the unfairness of copyright, though some of the comments are more appropriately critical of YouTube. Because to the extent anyone can give this particular incident much consideration at all, it really is a YouTube problem, not a copyright problem.

Keep in mind that in the world outside the demolition derby of the internet, claiming a copyright and defending a copyright are not necessarily the same thing. If Mr. Tomczak and the “publishers” making a claim against his video were squaring off to litigate, I would hope that attorneys for all parties would advise that nobody has a reasonable copyright claim in white noise. White noise by itself does not meet the minimum standard of originality for copyright and is no more protectable than an A-Flat. As much as critics like to claim that copyright is a legal system woven from pure whimsy, it isn’t quite so random in practice as it may seem when filtered through the internal policies of a business like YouTube.

And here’s a bombshell observation: the internet is brimming with people who figure out how to game the system to generate money for themselves. It could be some guy making click-bait fake news, or it could be one of these “distribution” companies that automate the process of monetizing content with which they have no relationship. This seems to be the nature of the claimants in Tomczak’s case, and these businesses are all over the web—offering to distribute your music, art, films, etc. for you. Just upload and wait for the money to arrive.

As an aside, I can tell you that when a friend of mine captured a serendipitous video that went viral, he was chased pretty aggressively by two or three of these companies offering to monetize the clip for him. These businesses were eager enough to get hold of him that they called friends and relatives in various states in their frenzy to get his video clip into their system ASAP—all for one clip in a universe of trillions of clips. Clearly, it’s a numbers game. If they can license x number of clips and monetize them for y dollars, then it’s worth the investment of z time chasing after people like my friend. There’s nothing wrong with what these companies do, per se, but they shouldn’t be confused with traditional rights holders—and certainly not with the interests of professional creators.

It should be obvious that these automated, or semi-automated, distribution systems would leverage the sound-matching capability of YouTube’s Content ID system and that they will inevitably monetize files that belong to other people. In fact, I wouldn’t be the least bit surprised to learn that there’s money to be made by using a cover of a song to try to monetize a track uploaded by the original artist. In July last year, I noted that singer/songwriter Bob Seger’s work was not on Spotify but that a whole catalog of covers by Bob Segar were available and are just good enough copies of Seger’s sound that many listeners might not immediately notice. In a similar way, what’s to stop an “innovator” from using a nearly-matching track to syphon money away from a creator who’s put her music on YouTube to monetize for herself? Suffice to say, copyright isn’t the bug in the system. The system is ideal for scammers and predators.

If there’s an unscrupulous way to squeeze a few dollars out of the advertising revenue stream flowing through the web, somebody’s already doing it. The extent to which Tomczak’s example is loosely predicated on the DMCA is a distraction from the larger picture—that this kind of chicanery is not the fault of copyright law but is more profoundly the realization of the free-for-all, pirate ethos that folks like TF’s fans have long advocated for the web. Piracy is a multi-million-dollar black market that, among other things, teaches people how to profitably game the system. So, it’s curious to see TF readers complain about legitimate copyright owners in context to a story in which a) no copyrights actually exist; and b) the false claimants against Tomczak’s video are doing exactly what the pirate sites do all day long—monetize work somebody else produced. As I wrote in my response to Pirate Bay founder Peter Sunde in 2015, this is the internet you asked for. And it’s full to bustin’ with white noise.

Turkewitz: Disruption, Fear and Slippery Slopes: Baby Steps in Building a Better Internet

(republished by permission)

The biggest story of 2017? To my mind, there is no contest — the broad emergence of an awareness that the irresponsibility masquerading as Internet freedom represented a threat to global societies and to cherished aspects of our humanity, and that a course correction was badly needed. While recognition of the fact that rewarding lack of accountability would likely incentivize anti-social and illegal conduct took longer than it should have, such an awareness came to fruition throughout 2017. Whether motivated by concerns about sex trafficking or the prevalence of other internet-enabled crimes, fake news, foreign government interference in elections, monopoly or monopsony power, or the perceived political or cultural biases of platforms, the question at the end of 2017 wasn’t whether the current legal framework for platform responsibility should be amended, but how. It became clear that the twin pillars upholding the current lack of accountability in the internet ecosystem — Section 230 of the Communications Decency Act and Section 512 of the DMCA, each of which was adopted at the dawn of the commercial internet, would need to be reexamined and a new framework established. Ideas ranged from minor course corrections such as amending Section 230 to address issues related to sex trafficking (SESTA) and changes to the DMCA to require greater use of technical tools to prevent infringement going beyond mere takedown, to proposals to broadly regulate the operation of platforms given perceived monopoly power over the last mile (access to, and influence over, users). In short, there appeared to be universal acknowledgement that the status quo wasn’t working, and some — as yet unspecified — change was needed.

But apparently, if not unsurprisingly, this acknowledgement that the status quo needs to be disrupted isn’t quite shared by everyone. In an end of the year post by EFF’s Jeremy Malcom entitled “Time to Rethink Copyright Safe Harbors? 2017 in Review,” Malcolm writes: “They [safe harbors such as the provisions of Section 512 of the DMCA] are as vital to the Internet today as they have ever been.” His argument is summed up neatly here: “Without that legal protection, it would be impossible for such platforms to operate as they do today.” Well, yeah. That’s the very point of effecting change — to modify how platforms operate. Malcom apparently looks at the internet and sees the flowering of culture and the emancipation of humanity. I want his internet. And I am prepared to work to achieve it rather than pretending it is our reality, and without employing absurd reductionism as if we were holding a referendum on whether technological progress and the internet are good or bad things. The internet is a remarkable tool for expanding communications and access to information in a truly transformational manner. The question is: can we be better stewards, and how can we most fully achieve its potential for enhancing the welfare of societies. We should not let the perfect be the enemy of the good, but nor should we let the good stand in the way of the better.

It would also be nice, but alas probably a bridge too far, to engage in dialogue about solutions without fear-mongering and labeling. In order for Malcolm’s narrative to hold, he has to take the individual creator out of the equation and to pretend that somehow the cultural marketplace is of no concern to actual creators — only to the ominous dark media lords, the dreaded “Big Content.” The ones who brought you SOPA. You know who I am talking about. The Man. Aiming only to defend a failing and exploitative business model. Malcolm works hard to reinforce this false picture, repeatedly referring to “copyright industry lobbyists,” “industry representatives,” “Big Content,” and of course, EFF’s favorite…”monopoly rents.” And suggesting that these industry trolls working in secret to destroy the internet would have gone unnoticed but for EFF’s vigilance. All of which leads to his central lie:

“But Big Content isn’t satisfied with such laws, because they place responsibility on copyright holders to request the removal of infringing content, and because the availability of free, user-uploaded content supposedly depresses the value of mainstream, paid entertainment. The content industry thinks a filtered, regulated Internet that suppresses user-uploaded content will deliver them higher revenues, and they describe the absence of these imaginary monopoly rents as a “value gap.”

There is no part of this that reflects the world we actually inhabit.

1-Large media companies (whatever that means) are not alone in calling for reform of safe harbors. A quick review of comments and submissions in the EU and US will reveal a creative community unified in its support for reform: businesses and labor, major studios and indies, individual creators and trade associations. And our problem is not that safe harbors place responsibility on copyright owners to request removal, but rather that they fail to place corresponding obligations on platforms to take meaningful action when they know, or should know, of infringing materials. Existing safe harbors in the US, EU and elsewhere create incentives for platforms to avoid knowledge of infringement, and then only obligate platforms to take remedial action which fails to provide an actual remedy. We need to reset the incentives to breathe life into the legislative intent behind existing legislation to promote cooperation in addressing infringement and expanding the digital marketplace.

2-The notion that the creative community is worried about competition to “mainstream, paid entertainment” from free user-uploaded content is truly outrageous. The creative community has no issue with creators determining that they want to offer their works for free. The problem is when users decide to upload the works of others without the creator’s permission. And yes, forcing creators to directly compete against unauthorized versions of their own works is both prejudicial and fundamentally unfair. That doesn’t require a lot of imagination, just a basic sense of fairness and justice.

3-Malcom asserts that there are two alternatives: his free and open internet, or the copyright industries’ filtered, regulated internet that suppresses freedom of expression and delivers monopoly rents. Reductionism at its very worst. The status quo, or some Orwellian nightmare of control. But of course, this is pure fantasy. The core issues related to safe harbors are not about regulation, but rather address the development of a technology-neutral way to achieve the kind of responsibility we would expect in the offline environment. Not more, and not less. To eliminate incentives for recklessness and willful blindness. And yes, to change the status quo. That’s what gets Malcom — he clings to the world he knows, and lives on a slippery slope. But when we resist doing what’s right out of fear of some future unknown, then something is fundamentally wrong.

An article published just yesterday neatly captured our reality: “The DMCA and CDA protections enabled a few Silicon Valley giants to become sinfully rich, with a concentration of power not seen since the 1920s. The digital revolution could have succeeded without the ‘disruption’ and their disregard for copyright and content creators.”

I have a modest proposal for 2018: let’s abandon evangelical fervor in favor of policy-making grounded in the observable universe. Let’s acknowledge that lack of accountability will produce unaccountable actions. And let’s be prepared to challenge the status quo to produce the kind of outcomes that enhance societal welfare. A recent article in Ars Technica entitled “How do you change the most important law in Internet history? Carefully.” While the underlying notion that Section 230 is “the most important law in Internet history” represents, as Devlin Hartline has noted, a fetishization of Section 230, I nevertheless agree with the proposition that we must exercise care. But Ars, unlike EFF, doesn’t ask whether the present framework should be amended, only how.

Image by Aenota

Public Knowledge Responds to Infringement Claim in Ajit Pai Video

Well, this is interesting.  Ordinarily, Public Knowledge is an organization that sows a lot of confusion—and sometimes outright falsehoods—about copyright law.  As a rule, I group them among the “digital rights” activists who tend to promote their opinion of what the fair use doctrine should be rather than a more realistic description of what it is.  So, it’s interesting that in response to allegations of copyright infringement against people they don’t like, the organization has produced a fairly sober and reasonable analysis of the fair use defense.  For the record, I’m no fan of the video in question either.

After FCC Chairman Ajit Pai reversed the 2015 Open Internet Order, a video featuring Pai, apparently produced  by the Daily Caller, went viral. It shows Pai demonstrating various things people will still be able to do after the hugely unpopular reversal of what is generally called “net neutrality.”  As readers know, I’ve tried to cut through some of the rhetoric on the neutrality issue without fully defending Pai, or certainly the telcos; but I also think the video was a pretty dumb PR move.  Its content may be factual, but its tone and style were begging for ridicule; its association with the odious Daily Caller makes it fatally dismissible; and its use of about ten seconds of the song “Harlem Shake” drew a DMCA takedown and threat of litigation by artist DJ Baauer.

Faced with the dichotomy of hating both Pai’s policy and copyright law, Public Knowledge uncharacteristically published a fairly rational explanation, written by Meredith Filak Rose, of the fair use doctrine along with an analysis of the use of “Harlem Shake” in this video.  Her assessment predicts that the video makes a fair use of the song, though not without sprinkling a bit of anti-copyright messaging along the way.

Rose does a good job of explaining the legal meaning of “parody,” which is one of the more widely misunderstood, colloquial terms invoked to assert a fair use.  I agree with her that the use of “Harlem Shake” in the video does not meet the standard of parody and am glad to see even an anti-copyright organization make an effort to clarify this point.  But from there, I think her fair use analysis is a bit all over the place, straining to make a case for the kind of use Pai and colleagues made, while clearly hating the video itself.

I’ll dispense with the fairly simple analysis under the second fair use factor, which generally considers whether the original work is expressive or factual in nature. Use of the former tends to weigh against a finding of fair use, while use of the latter tends to weigh toward a finding of fair use. Clearly “Harlem Shake” is expressive, and so Rose is correct to expect that this disfavors a finding of fair use under this prong of the four-factor test.

Under the first factor analysis, I agree with Rose that the use of “Harlem Shake”  is not parodic and that it is also non-commercial; but I disagree when she concludes that it is “at least mildly transformative,” thus favoring a finding of fair use. In fact, it is contradictory to conclude that the use of the song is not parody but is transformative. Because this still begs the question as to what has been transformed.

Originally, transformativeness described the creation of a truly new expression, which could not possibly exist without making use of the exact work in dispute. In the video, Pai concludes his list of “post neutrality” activities by saying “You can still do the ‘Harlem Shake’,” and then he dances to the track (and yeah, it’s cringy) with staff members of the Daily Caller.

This use is no more transformative than if the track were synched to the introduction of a promo video made by Pfizer. The use does not produce a new work that directly parodies, comments upon, criticizes, or builds upon the original song itself. In fact, in a subtle way, Pai is telling people, “Don’t worry, you can still randomly infringe various copyrighted works after I reverse the 2015 Order.”  (By the way, transformativeness is a principle that has indeed been applied rather schizophrenically in the courts, but it is organizations like Public Knowledge that continue to promote ever-broadening interpretations of the term.)

The intended communication in the Pai video could have been made by using any number of pop songs. The purpose of the video as a whole was not a work of commentary upon art and culture but was instead a work of PR with the intent to promote a position on public policy. In a fair use assessment, this use should be seen as equivalent to precedent examples in which a creative work is used for general comment or satire (i.e. to comment upon something external to the original work), which are not typically held to be fair uses.

In this context, Rose errs when she considers whether or not it was necessary to use “Harlem Shake” per se in this video.  First she improperly places the question under the third factor—the “amount and substantiality of the use”— rather than the first.  Because the need (or not) to use a specific work underlies the purpose and character of the use, the question belongs under the first factor analysis.  Next, Rose rather bollixes up the principle in her effort to defend “meme culture” by confusing creative necessity with the much broader notion of personal taste.  She writes…

“But judges can also ask whether you could have achieved the same purpose without using the work at all, or using another work. These are borderline existential questions when it comes to memes: did I have to use a copyrighted image of a screaming porg in my Twitter avatar to convey my distaste for the current political climate, or could I have used something else to equal effect?”

Despite the anti-copyright crowd’s love of memes, the test under fair use as to whether a specific work is necessary to create an expression is not so broad as considering the whimsical taste of the user to make some generalized statement.  Under fair use, the resulting new work should, in some way, be unimaginable without making use of the protected work in dispute.  For instance, the seminal case (1994) in which 2 Live Crew parodied the song “Oh, Pretty Woman,” was one in which the new expression relies substantially on a cultural familiarity with the sounds copied from the original. It is understood that the new work is, in part, spoofing the spirit of the original song.

Rose’s reference to her screaming porg avatar errs as an example because she is in no way commenting upon the original photograph.  She’s simply wearing it like a button on a lapel to express her personal state of mind about the current political climate. If she used the same image in a blog post about the political climate, the photographer could take action, and she would almost certainly lose in a fair use defense.

Finally, while Rose’s explanation of the fourth factor is correct, part of her application with regard to the Pai video is odd.  The fourth factor considers the effect of the use on the potential market for the original work.  I certainly agree with her that nobody would ever consider the Pai video to be a substitute for listening to “Harlem Shake,” and I also agree that Pai’s use under this factor favors a finding of fair use.  But then, Rose meanders into other legal territory—namely, moral rights—when she writes, “There is a tenuous (but extant) argument that Pai’s association with the song actually devalues the song.”

Regardless of one’s opinion about moral rights for artists—Rose calls it dangerous—this consideration is not generally applied in a fair use analysis.  In fact it is essential to note that fair use will protect commentary upon a work, even if the commentary itself may harm the market value of the original work.  Correctly applied, the fourth factor only considers whether the new use may act as a substitute for the existing or potential market of the protected work, including a market that the original author may choose to exploit at some point in the future.  So, whether one buys into the argument that Pai’s use of “Harlem Shake” could create a negative association with the song, this is not legitimately a question under the fourth fair use factor.

On instinct, my prediction would be that that the Pai video would fail on the first and second factor analyses, prevail on the fourth factor, and could go either way on the third factor.  Although the video makes very limited use of “Harlem Shake,” the third factor considers whether the portion used represents the “heart of the work.”  One could imagine DJ Baauer making a case that the campy communication intended can only have worked by making use of the “heart” of the song such that it would be instantly recognizable in context.  This would disfavor a finding of fair use, if the use also failed under the first factor analysis.

One way or another, I don’t doubt the infringement claim associated with this particular video caused a bit of dissonance over at Public Knowledge.  And they should be commended for at least trying to discuss fair use as a nuanced principle, rather than the natural right of all netizens.  That said, I think they missed a few key distinctions in an effort to make clear they still really don’t like copyright.