Category: Copyright

Some Good Copyright News From Down Under

G’Day! Since there’s so much gloomy news here in the States, I thought I’d take a moment to note that Australia did a couple of pretty cool things recently.  They legalized same-sex marriage, so good on them for that.  And on the 6th of this month, they introduced a safe harbors provision to their copyright law that would exclude platform providers like Google and Facebook.  The new copyright liability shield would extend to carriage service providers, academic and cultural institutions, and organizations for the disabled.  If the bill passes as is, the legislation could prove instructive if and when the U.S. resumes debate on revision of its own safe harbor provisions.

The internet giants have strenuously lobbied the Australian government to adopt blanket safe harbors akin to those in Section 512 of the U.S. DMCA. Naturally, they’ve repeated the standard arguments that the liability shield against copyright infringement, established in this country in 1998, remains essential for free speech and the continued innovation of web platforms.  (What other argument do they ever make?)

Rights holders in the U.S., perhaps most prominently independent musicians, have tried for years to describe how the DMCA’s safe harbor provisions have had the unintended consequence of enabling the major—otherwise legal—platforms to profit from mass copyright infringement.  As described in detail in several posts, the most obvious example is YouTube, which grew to its monopsony position partly on the backs of creators whose works were constantly uploaded to the platform without license.

Because copyrighted works are uploaded by users, a platform like YouTube remains shielded from liability but still free to reap the rewards of traffic driven by the high volume of infringement. The fundamental flaw in the policy should be obvious:  where a corporation has both financial incentive and zero liability, it’s probably going to make some effort to profit from whatever conduct was supposed to be mitigated by the policy.  Both the harm done to creators and the untouchable market dominance of YouTube are unintended results of the safe harbor provisions in the DMCA.

Although presently overshadowed by more serious policy issues (and the circus), when Congress first took up review of the Copyright Act in 2013 and the Copyright Office last year began review of the DMCA, many independent artists and rights groups began to amplify the message that revision of Section 512 is long overdue.  In response, the internet industry and the familiar network of “digital rights” groups began promoting the counter-message that the status quo of the safe harbor is essential to (say it with me) free speech and innovation. And this is on top of the widely-promoted fallacy that the DMCA has predominantly been abused by rights holders to stifle speech, even where no infringement exists.

The Australian bill may yet change, but if their more narrowly tailored safe harbor provision becomes law, it could be instructive to the American creative community, if we resume discussion about Section 512 of the DMCA.  At the moment, it feels quaintly optimistic to imagine standing on the other side of so much political chaos with a still-extant republic in which to debate copyright law, but one must keep hope alive I suppose. In the meantime, what’s intriguing about Australia’s legislative process on this matter is that their bill reflects an effort to balance the intent of safe harbors with effective copyright protection—but with a contemporary understanding of online infringement that simply did not exist in the U.S. in the 1990s.  At the very least, it’s encouraging to see legislators draw a sharp distinction between public-serving, cultural institutions and the world’s largest, for-profit tech giants.  For far too long, we in the States have allowed Google & Friends to blur those lines.

On Cake, Creativity, & Religion in America

Today, the Supreme Court will hear oral arguments in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission, a.k.a. “the wedding cake case.”  In 2012, baker and cake designer Jack Phillips of Masterpiece Cakeshop in Lakewood, CO informed David Mullins and Charlie Craig, that he would not make a new cake for their wedding due to his Christian belief that same-sex marriage is a sin.  This circumstance will look to many like a 14th Amendment, equal-protection case—one fraught with emotion for the LGBT community and those of us who defend gay rights. But, this particular conflict may be a bit trickier than it appears.

It is my own view that the most important elements of the First Amendment—a true master stroke for the late 18th century—are the balancing forces of the exercise and establishment clauses.  In recognizing the slaughter-bench that religion had made of Europe for centuries leading up to the American experiment, the relative harmony achieved by simultaneously rejecting a national religion and protecting the free exercise (or no exercise) of a plurality of beliefs is central to the function of all other civil rights in the United States.  After all, if there were a state religion, or if we failed to protect a diversity of views, the rights of free speech or a free press would be utterly meaningless.

In this regard, the current trend that seeks to upset constitutional balance by asserting the exercise of one religion (Christianity) over secular laws like the 14th Amendment is toxic beyond the immediate issue of gay rights affirmed in Obergefell.  For instance, Rep. Labrador’s proposed First Amendment Defense Act (FADA) would be a legislative end-run around equal protection that would empower a landlord to refuse housing; an employer to refuse a job; or a doctor to refuse treatment to citizens in same-sex marriages.  But in addition to being a transparently bigoted proposal, it is more broadly an assertion that the Book of Leviticus supersedes the Constitution; and I would caution even the most ardent Christian Americans to be careful what they wish for.  Such views tore nations apart for much longer than U.S. has existed.

So, while I am personally adamant, to say the least, that secular law always prevails over religious “law,” it is precisely because of this principle that I wonder if Phillips’s argument in the “wedding cake” case may be more difficult than it appears.  My right as a secularist to publish this post is codependent with protecting Phillips’s right to speak (or not speak) in accordance with his views. The speech protection cannot discriminate based on the motives of the speaker, which brings us to the question of whether Phillips’s cakes can reasonably be called creative expressions.

How creative is a wedding cake?

If I understand Phillips’s argument correctly, the issue in this case is far more subtle than a typical 14th Amendment conflict in which a proprietor outright refuses service to a customer based on some form of discrimination.  According to this account in Reuters, Phillips did not demand that Mullins and Craig leave his shop, and he offered them other products that had already been made.  What Phillips refused to do was to take up his creative brush, as it were, to make what he feels would have been a new artistic expression celebrating an event he cannot endorse. In short, what makes this case distinctive from, say, a mechanic refusing to fix the couple’s car, is that Phillips may be standing on fairly solid free speech ground if the service he refused to provide is held to be creative enough under the law.

Writing as someone who despises both bigots and “religious-freedom” laws but defends artists, copyright, and free speech, I have to admit that Phillips’s claim is not entirely dismissible simply because I reject his point of view.  Although a cake is too temporary a medium to qualify for enforceable protection under copyright law, copyright principles may still be instructive to a legal interpretation of his claim that his cakes are artistic expressions. This is because the design, painting, and arrangement of elements on the cakes could very likely meet the modicum of creativity standard required to call Phillips’s pictorial, sculptural, & graphic (PSG) work “original” in a copyright context. This may be relevant because a court, which has no business acting as cultural critic (i.e. deciding what conduct is or is not “artistic”), can look to copyright law for guidance as to what defines “creative expression” in a legal context.*

So, if it can be established that Phillips (or any baker with his level of skill) is engaged in creative expression while designing one of these cakes, then his free speech argument has merit, regardless of the discriminatory nature of the religious belief behind the speech. Under this analysis, the obvious problem with a holding against Phillips is that it would set a precedent whereby a different creative cake-maker could not refuse to make one of her expressions to celebrate a party for the Ku Klux Klan.  Or what if the medium is more permanent than a dessert?  What if the artist is a portrait painter or photographer?  Does the 14th Amendment require that the artist accept a commission to make a portrait of some figure who represents something he reviles? Certainly, most people would agree that equal protection for the customer, in this case, does not supersede the artist’s speech right to refuse to create the work. Like it or not, the rationale may be the same if the “canvas” is a cake.

Michelangelo hated painting the Sistine Chapel.  As beautiful as it is, there is an extent to which the entire undertaking is not his expression of choice, but rather an expression of his especially thorny relationship with the Medici and the Roman Church. His life exemplifies the precarious relationship many artists had with society and religion throughout most of western history. It was not until the late 19th century that art truly began to assert itself as something distinct from doctrines of morality; and one role copyright has played in that narrative is that it allowed the artist freedom to express herself without the constraints of patronage, religion, or government, which were usually intertwined.  But in order to protect this principle of artistic independence, we probably have to uphold the rights of all creators equally, whether their personal motives are secular or religious — or even unkind.

Laws designed to protect “religious freedom” like the FADA bill are extremely dangerous in my view because they upset the very delicate balance between exercise and establishment that I truly believe is the yin/yang of American civil liberties. But equally dangerous is any precedent that would coerce an individual to speak in a manner that he does not choose. Like religious-freedom laws, a victory against Phillips in this case could have some nasty, unintended consequences for creative expression.  So, as strenuously as I would use my speech right to defend the right of Mullins and Craig to enjoy equal protections, I am likewise sure that—if Phillips is held to be conducting creative expression—he cannot not be compelled to express himself for any reason.

Personally, I think people like Phillips who cherry-pick Leviticus as an excuse for discrimination are fundamentally mean-spirited and crazy (I mean have you read Leviticus?) And the kind of political figures and institutions who support this beatified baker are generally a threat to democratic principles (and some of them are pedophiles it turns out). I’d be happy to see these people lose.  But as a matter of dispassionate analysis, it may not be so easy, or even desirable, to define Phillips’s cakes as non-expressive; and it will be interesting to see what the Court makes of this argument.

ADDENDUM:  To look at this in another way, if copyright’s principles were to define Phillips’s cakes as creative expressions, then those same principles also provide boundaries that should prevent this case from serving as precedent for a broader range of “creative” services (e.g. floral arrangement).

*See this post about Star Athletica v Varisty and the subject of separability.  Based on Justice Ginsberg’s opinion, Phillips could theoretically register his designs with the USCO using another medium like paper prior to applying them to the cakes.

Photo by ivonnewierink

A Quick Update on the Display Right

In a recent post, I described how the “server test,” established in the Perfect 10 case, obliterates the display right for visual artists on the internet. I further opined that the “server test” is an irrational standard and also stated that Perfect 10 may not be the final word on the matter. For recap, the Ninth Circuit held in Perfect 10 that in-line linking (also known as “framing”) images on a website without actually hosting (i.e. copying) those images does not infringe the author’s right of public display.

A new case before a U.S. District Court in Dallas this month (The Leaders Institute v. Magnovo Training Group) entails several IP and non-IP disputes between the litigants, including copyright infringement of the display right by means of “framing” plaintiff’s images to make them available on defendant’s website.  I’ll spare readers the long-winded details about these parties and their various disputes because they are not germane to the copyright issue.  What is compelling about this case, and potentially good news for visual artists, is that Judge Jane J. Boyle said the “server test” doesn’t make any sense to her either.  Here’s how she put it …

“…to the extent Perfect 10  makes actual possession of a copy a necessary condition to violating a copyright owner’s exclusive right to display her copyrighted works, the Court respectfully disagrees with the Ninth Circuit.  The text of the Copyright Act does not make actual possession of a copy of a work a prerequisite for infringement. To display a work, someone need only

show a copy of the work; a person need not actually possess a copy to display a work. And to display a work publicly, a person need only transmit or communicate a display to the public. 

Again, the person need not possess the display. For example, a person that went into a movie theater and used a video camera connected to the internet to broadcast a movie to the public would clearly be committing copyright infringement even though the person did not herself have a copy of the movie. Essentially, TLI’s framing scheme is like a live feed of Magnovo’s copyrighted website.”

Judge Boyle’s opinion seems to better conform to common sense than the “server test.” If a party displays a protected visual work, whether by in-line linking or magical incantation, that action alone should implicate the right of public display.  As mentioned in past posts, visual artists are easily the most-frequently infringed authors on the internet.  It’s so common that many photographers and other creators just starting out have all but abandoned any hope of controlling or being paid for their work.  And that’s exactly how the major internet platforms and the freeloaders want it—a market where creators feel grateful just to be exploited.

Opinions like Judge Boyle’s can be cited in future cases to eventually overturn the opinion in Perfect 10, so this is potentially very good news for visual artists as it would restore the intent of the display right in the digital market.   Add to this, the passage of the copyright small claims provision (H.R. 3945), and users might stop assuming every image they find is just there for the taking.