Category: Copyright

YouTubers losing viewers. What gives?

For years, “old model” artists have been told to quit whining.  Every time some well-known and well-established creator has spoken out about the issue of mass copyright infringement online, or the hazards that monopsonies like YouTube pose for all creators, the response from the “new model” gurus has always been nauseatingly repetitive.  These legacy artists should stop clinging to old models; they should get with the program, stop thinking about selling their works and protecting their copyrights because the internet has rendered such notions obsolete.  Plus, if creators would just wake up to the new realities, they would see a whole world of opportunity to make a living from their work without the evil gatekeepers.

I and others have tried to warn new creators that the “evil gatekeepers” have not been bypassed in the new model, but have instead been replaced by one or two gatekeepers that are at liberty to change the terms and conditions for use of their platforms without any obligation to the creators who helped grow the platforms. The above video by Glove and Boots does a good job (and an amusing one) of describing a phenomenon that apparently a lot of YouTubers are experiencing lately–lost viewers, allegedly due to algorithmic changes on the platform.

I haven’t dug into the details of this story but have heard similar complaints for at least several months now and can’t say that I’m surprised to see cracks in the YouTube model.  It will be interesting to see where things go from here. Presumably, YouTube needs to serve the creators whose works draw viewers to the platform, but I’m going out on a limb to predict that changes at YouTube will make the company look even more like a traditional gatekeeper than it already does.  Correspondingly, I will predict that the new creators will discover that they have something to learn from the old creators.  In particular, if artists like YouTubers are ever going to be in a position to negotiate terms for their work, they will realize that their power to do so is based on this old model called copyright.

NOTE:  I’ve shared this video because it does a good job of explaining what they and other creators believe is happening on the platform.  As for their use of clips from the film Thelma & Louise, I believe it would stand a decent chance of being held a fair use in an analysis, but that should not distract from the intent of this post.

Photo by manae.

Is a Tech Company Really Claiming Ownership of Marvel Characters?

You may have read recently that some of the major studios, most prominently Disney, are alleged to have infringed the patent rights in a certain motion-capture system used to make blockbuster films like the multi-billion-dollar Marvel movies.  Further, an article like this one in Hollywood Reporter by Eriq Gardner might give a reader the impression that a) the patent infringement allegations are indisputable; and b) that the plaintiff in this case Rearden LLC is claiming to “own” some of the famous CG characters featured in these movies. So what gives?

A lot. But not necessarily what the headlines imply. As for the patent infringement allegations, these are impossible to comment upon at the moment because 1) I know almost nothing about patent law; and 2) the entire backstory as to how Disney and other studios may be implicated is too complex to unravel in this forum. Suffice to say, we’ve got some former technology partners who are no longer friends, some dubious-sounding shenanigans involving the sale (or not) of shared (or not) intellectual property, and an inventor named Steve Perlman (Rearden’s CEO) who seems to have at least a few good reasons to be pissed off at somebody.

Time and the courts will sort all that out, but for the sake of addressing the copyright allegations in this story, we need to assume hypothetically that the studios are implicated in the patent infringement from which the copyright claims stem.  And let’s cut to the chase and clarify that Rearden cannot—and is not—claiming any ownership of the underlying pictorial or graphic works we know as Hulk, Deadpool, Iron Man, etc.  What Rearden does allege is that by making unlicensed use of its MOVA Contour technology, the studios simultaneously infringe Rearden’s copyright in the outputs of this technology.  Hence, cutting through the fog and high drama, the entire copyright claim appears to turn on whether Rearden’s outputs are in fact copyrightable at all.

MOVA Contour’s Outputs

As an example, Mark Ruffalo goes into a motion-capture studio where he grins, shouts, pouts, growls, and raises curiously adorable eyebrows in the mode of his inner Hulk.  He may be directed by the film’s director or some other member of the creative team, or he may self-direct to produce all the faces needed for every scene in which Hulk will appear. These performances, fixed in the computer drives during the process, are indisputably the property of Marvel Studios, which is owned by Disney.

The captured data, consisting primarily of multiple two-dimensional images is then input into the MOVA Contour system, where the software renders a pair of three-dimensional outputs:  what Rearden calls a “Captured Surface” and a “Tracking Mesh.”  These two assets then serve as a highly-detailed, digital armature onto which Marvel-employed animators then composite the CG Hulk, who will then grin, shout, pout, growl, and raise curiously adorable eyebrows in the movie, looking just enough like Mark Ruffalo to make the character transformation seem organic.

Rearden’s Claim

Rearden asserts that, although the Captured Surface and Tracking Mesh are never displayed in the final movies, these two outputs are, nevertheless copyrighted works and, therefore, every CG-composited element built upon these outputs is a “derivative work.” So, absent a licensing agreement to use the software and transfer ownership of the outputs to the licensee, the studios are alleged to have infringed Section 106(2) of the copyright act, which protects the derivative works right.  Indeed, if this claim has merit, it would be quite staggering to consider the number of infringements implicated.  One can almost hear the Hollywood-bashing copyright-haters chomping at the bit; but if that’s the case, they might want to belay the schadenfreude.

I imagine the studios’ motion to dismiss will be denied because the allegations seem to warrant further proceeding. But even if the copyright claim goes far enough to render an opinion by the court, I believe there is ample evidence in both scholarship and case law to conclude that Rearden’s outputs are not copyrightable and, therefore, cannot implicate the derivative works right.

Is MOVA Like Other Software Used to Make Creative Works?

At first blush, one might assume that the MOVA software is akin to using Word or Photoshop, which are used by authors all the time without any fear that Microsoft or Adobe can claim a copyright in the works made with these products—even if the author pirates the software!  But, Rearden counters this premise by saying that because their software produces a specific, repeatable output fixed in a medium, and because this output is produced almost entirely by the “labor” of the software, the analogy to Word isn’t quite right.

The difference they claim relies heavily on the case TorahSoft v. Drosnin (2001) in which defendant Michael Drosnin published a book based on outputs (effectively search results) that were exclusively the products of plaintiff ToraSoft’s algorithm. Rearden appears to be clinging to language in this opinion that supports the possibility that the output from computer software could be copyrightable; but the lion’s share of the opinion actually provides reasons why TorahSoft’s output was not copyrightable. And because much of the court’s reasoning in that case seems applicable to Rearden’s claim, it may be a risky citation.

In response to the assertion that MOVA is comparable to Word or Photoshop, Rearden states,“…in neither case does their work provide input to software that synthesizes an original expression that is distinct from the author’s or artist’s input.”  I wonder if that is, or should be, the standard. After all, between my writing these words and you’re reading them, there are several software authors whose work renders my expression into intermediary “works” that, if they were indeed copyrightable, would mean that everything created with digital tools is a derivative work of underlying works belonging to the tech companies of the world.  I don’t think the courts would view this outcome as compatible with the purpose of copyright.

Are MOVA’s Outputs Expressions or Copies?

Curiously enough, the “sub-millimeter precision” with which MOVA Capture does its job may be the evidence which most disfavors a finding that its outputs are copyrightable.  The standards for protection are “originality” and a “modicum of creativity.”  Originality literally means that the work is not a copy, and so far, “creativity” has been limited to works produced by humans. We may yet address copyright protection for works that are substantially produced by AIs, etc., but in this case, it seems Rearden is arguing that the human expression embodied in the software is tantamount to authorship of the software’s output, which it claims is separately “creative.”

While this may be possible in some circumstance, as TorahSoft seems to imply, I suspect Rearden’s argument will find slippery ground because the courts will view the purpose of MOVA software as one of making copies of performances that are the property of the defendants.  In this context, I believe Rearden’s software, especially as a component of the entire system, may be compared to patented devices that capture images which would strain to meet the standards for protection.

Copyright scholar Justin Hughes, whose paper on photography I have cited in other posts, asserts that a vast quantity of images—security camera footage, satellite photos, Google Street captures, even photos of public-domain paintings sold as postcards—should not stand up to claims of copyright because they lack the modicum of human creativity required for protection.  Assuming Hughes is correct, Rearden’s claim of copyright in its outputs would seem to fail under the same analysis.

More specifically, the case that comes to mind in answer to Rearden’s claim is Meshwerks v Toyota, decided in 2008 by the Tenth Circuit Court of Appeals. In that situation, Meshwerks asserted copyright protection in the outputs from its capture technology used to produce 2D, digital models of Toyota cars for advertising purposes. Supplier Meshwerks actually performed a considerable amount of creative labor—in collaboration with software—to produce the outputs. This stands in contrast to Rearden, whose claim relies solely on the products of the software.  Nevertheless, and with stated respect for the amount of work involved, the court held that Meshwerks outputs were not copyrightable because their purpose was to create the best copies possible of designs belonging to Toyota.  From the opinion, which partly quotes Nimmer on Copyright:

It is certainly true that what Meshwerks accomplished was a peculiar kind of copying.   It did not seek to recreate Toyota vehicles outright-steel, rubber, and all;  instead, it sought to depict Toyota’s three-dimensional physical objects in a two-dimensional digital medium.   But we hold, as many before us have already suggested, that, standing alone, “[t]he fact that a work in one medium has been copied from a work in another medium does not render it any the less a ‘copy.’ ”

So, if we compare this to Rearden’s claim and the Hulk example, Disney certainly did not design Mark Ruffalo, but they do employ him to perform the only creative work in this entire process—that of making faces as Hulk.  And I would argue that, akin to Meshwerks, the function of MOVA software is to copy that performance (in this case, from 2D to 3D). In fact, it is the triumph of the system’s capacity to deliver such precise copies which disfavors a conclusion that its outputs are “original” expressions of “creativity.” The process is no more creative than a CAT scan—far less creative, it seems, than the work performed by Meshwerks, which was held not to meet the standard of protection under copyright.

It’ll be interesting to see if any of the usual anti-copyright suspects come out to play on this one.  Presumably, they should disfavor Rearden’s claim of copyright for many of the reasons cited here, but siding with Hollywood studios may be more than they can bear.

Image by kentoh.

Does the Internet Archive Need the Copyright Rhetoric to Be Useful?

Photo by fotoduki

Recently, a tweet caught my eye on the #copyright thread—something about the late Congressman Sonny Bono and a new collection at the Internet Archive, which is the vast digital library founded by technologist and entrepreneur Brewster Kahle.  The tweet linked to a blog post by Kahle announcing that a collection of copyrighted works published between 1923 and 1941 had been “liberated” and is now available on what the Archive has named The Sonny Bono Memorial Collection.

The eponym is not an honor of course. It’s a posthumous snipe at Bono, who is credited (or blamed, depending on one’s point of view) for the Copyright Term Extension Act (CTEA) of 1998, which added 20 years to copyright protection, resulting in the current term of life of the author plus 70 years.  Kahle’s post is bulked out with a lot of standard rhetoric condemning the duration of copyright, repeating the misleading narrative that Mickey Mouse was a major reason for the CTEA, and imply rather obtusely that the original 14-year, single-renewal term of 1790 ought to still be the law of the land (because of course the world functions much as it did in the late 18th century).  All that noise aside, however, the new collection with the sarcastic name is made possible by what Kahle calls, “a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold.”

Let me interject to say that the Internet Archive is impressively handy.  I’ve already found a number of intriguing sources for a research project I’m just beginning; so, what follows is not an indictment of this or any other library, whether physical or digital.  I love libraries. But the reason for highlighting Kahle’s derisive tone is that it seems that there’s a lot of unnecessary conflict being sown between contemporary librarians and copyright law. And the crux of Kahle’s own announcement about this new archive underscores just how unnecessary the conflict is. To begin, Section 108(h) of the Copyright Act is not quite so arcane as he implies.

The statute was created as a specific carve-out for libraries, reflecting a compromise to attain passage of the term extension in 1998.  The exception allows a library to copy and make a work available during the last 20 years of its term of copyright protection, if copies of the work are not commercially available at a reasonable price. There are more conditions to the statute, but the underlying rationale is common-sensical enough. If these “Last 20” works are no longer available in the market—and high-priced, rare copies don’t count—then libraries are allowed to fulfill their mission by making the works available for the purposes of research and scholarship.  Meanwhile, the existence of the 108(h) exception, including proposals to amend it, actually rejects the attitude that Kahle and others sometimes adopt which ultimately pits authors against libraries.

New Scholarship on Section 108(h)

The challenges for a library wishing to apply 108(h) include research capabilities to learn the copyright status of works, and vagueness in the statute that can make proper analysis difficult. Enter Professor Elizabeth Townsend Gard, a copyright and history scholar at Tulane University. In collaboration with colleagues and students, she produced a 103-page paper, released this month, entitled Creating a Last Twenty (L20) Collection:  Implementing Section 108(h) in Libraries, Archives and Museums.

Gard’s paper offers two major contributions:  1) a comprehensive methodology for qualifying organizations to make effective use of the 108 exception in order to build what she calls “Last 20 Collections”; and 2) suggestions for possible revision of the statute in order to address what she sees as unnecessary gaps that leave organizations in limbo with regard to qualification and implementation. The heart of the paper is dedicated to methodology, in which she describes a taxonomic approach to identifying works, combining standard library cataloging systems with copyright data to yield the information required to know if a work is eligible for the 108(h) exception.  Given the amount of complexity involved, and the fact that I am neither a librarian nor an attorney, I cannot fairly comment on the system.

With regard to the statute, the US Copyright Office published its Model Statutory Language for revision of Section 108 in September of this year.  Gard commends some of the proposed changes and critiques others, making several recommendations that sound reasonable. For instance, she advocates better clarification of the extent to which the “used” market honestly represents “availability” of a particular work in fulfilling the purpose of 108(h). Some of her proposals may find critics at the USCO or among various stakeholders; but suffice to say, her work reads like a sensible foundation for compromise, which can be a rare find in contemporary discussions about copyright.

Making Section 108(h) Work is Not an Anti-Copyright Statement

Gard’s work represents a counterpoint, in my view, to many positions adopted by the ALA and related organizations, which have spent considerable energy aligning their interests with for-profit, technology companies in the hope of expanding—through litigation—the fair use exception and/or the first sale principle.  This approach seems both ideologically and pragmatically flawed, especially where the for-profit ventures clearly try to strain the underlying legal principles involved.

Libraries, archives, and museums, which exist for the primary purpose of advancing scholarship, deserve special consideration that is not accorded (and neither should it be) to for-profit ventures—or necessarily all non-profit ventures.  While the internet does create unprecedented opportunities for providing access to works that can lead to new areas of scholarship and new forms of creative expression, it also creates unprecedented incentive (i.e. crazy-big money) for various parties to try to blur the line between public-serving and private-interest ventures. Legitimate institutions of scholarship that ally themselves with this kind of vagueness are, in my view, working at cross-purposes with efforts like those of Professor Gard, whose proposals seek clearer guidelines for the types of institutions that deserve exceptions like Section 108(h).

To put this in context, there is nothing that necessarily bars a public-serving and privately-held platform like the Internet Archive (or Wikipedia) from becoming a monetized business venture, either independently or by selling all or some portion of its enterprise to a larger entity like Google.  Or if the Internet Archive were to earn revenue by selling its user data, this should run afoul of Section 108’s prohibition against using a “Last 20” collection to attain “indirect commercial advantage” for the archivist. I’m not saying the Internet Archive will do this, but if we keep in mind that indirect commercial advantage is the mechanism by which giant internet businesses make content “freely” available to the public, this awareness should inform any new statutory contours for an exception like 108(h).

Referring back to Brewster Kahle’s post, he quotes Carrie Russell, Director of ALA’s Program of Public Access to Information thus: “I’ve always said that the silver lining of the unfortunate Eldred v. Ashcroft decision was the response from people to do something, to actively begin to limit the power of the copyright monopoly through action that promoted open access and CC licensing.”  Eldred is the Supreme Court decision upholding the constitutionality of the CETA, and Russell’s statement here is frankly incomprehensible in a blog alluding to Gard’s efforts to make an existing, statutory limit on copyright work better.

Kahle himself seems unclear about the difference between the nuance in Gard’s work and his own desire to evangelize the bad-manners approach to copyright typically employed by Silicon Valley corporations. He writes, “Now it is the chance for libraries and citizens who have been reticent to scan works beyond 1923, to push forward to 1941, and the Internet Archive will host them.” That makes it sound as though Gard’s work just opened the flood-gates and that anyone should feel free to upload anything to the Internet Archive as if it were YouTube. Does this mean the Internet Archive will then do the 108 analysis before hosting, or that they’ll just duck behind the safe harbor of the DMCA?   Either you’re an entity that responsibly qualifies for the 108 exception, or you’re an ideologue eager to stick it to rights holders.  You can’t be both.

Professor Gard’s work strongly highlights the fact that carve-outs for libraries already exist in the copyright law; and where these statutes may not function as intended, they can be amended through good-faith collaboration with the USCO, stakeholders, and Congress.  To achieve this collaboration, however, the librarians and archivists would do well to tone down some of the rhetoric implying that the interests of preservation and research are incompatible with the interests of authors. It is plainly absurd for librarians and authors to be at odds, even in the digital age.