Category: Copyright

Copyright is Not About Defending Old Models

old models

Pretty much since Napster (1999), tech pundits have been presumptuously lecturing pro-copyright creators about economist Joseph Schumpeter’s principle of “creative destruction.”  This is the observation that the market will naturally produce innovations which will displace existing products or services, often rendering the older models obsolete.  Take Schumpeter, add hubris and piles of money, and you get the “disrupt everything” culture of Silicon Valley—one that is so arrogant that it treats anyone who won’t join the disrupt rodeo as a Luddite and a fool.

Typically, anti-copyright pundits like to repeat the buggy whip cliché, claiming that the individuals and institutions who defend copyright are “clinging to the buggy whip industry while automobiles wiz by them on the highway.”  It’s an effective talking point if nobody’s paying much attention.  And since the internet itself hasn’t exactly helped in the paying attention department, the buggy whip analogy became an even easier pitch with the arrival of social media and the 140-character debate.

It’s a message that even many creators and artists bought up to a point; but the misdirection in the analogy distracts many observers from noticing the false comparison being made.  Because if we stick with the metaphor, then it is accurate to say that copyright advocates do not argue the cause of buggy whips in a world of automobiles; they merely assert that transportation is still in demand, regardless of how people and goods are to be conveyed.

The hidden truth in this faux-Schumpeter exercise is the fact that nothing has actually displaced consumer desire for creative works. We still want movies, books, TV shows, music, etc.  What has changed—and only for a segment of the market—is the means of conveyance for these products. The copyright proponent doesn’t really care whether the CD or vinyl album remains relevant—only that music itself is still in demand.  The principle of creative destruction doesn’t even belong in this conversation (though one could argue that a destructive form of creative thinking is at play.)

Apropos of my recent post When Copyright Criticism is Something Else, it is easy to confuse the subject of intellectual property rights with the efforts of an industry or business to “cling” to market share tied to a fading product. That some record labels sought to squeeze every dollar out of CD sales before their obsolescence is to be expected, but this has little to do with the principle that copyright should continue to protect the makers of music—and should be revised wherever it is failing to do so.  Even the mistakes made by the recording industry, through its stumbling adaptation to the internet, should be viewed as separate from a broad defense of copyright’s purpose.

The buggy whip analogy, in this context, is a lie.  And what’s most galling about this particular lie is that it is still aggressively evangelized by the one industry best suited to exacerbate the non-competitive trends that have shaped (or mutated) the American economy since at least the 1980s. The internet industry promises Schumpeter-like results—a vow to repeal and replace, if you will—for authors of creative works, if they are willing to abandon traditional notions of a property interest in their work. Not only has this proven to be a con in the world of creative arts, but the industry’s influence, even among tech entrepreneurs, hardly makes a compelling case for fostering competition and innovation.

A recent article in The Economist reports on a summit held at the University of Chicago, where academics have begun to rethink the state of competition in the American market resulting from the trend away from regulatory influence that began nearly 50 years ago. “Those that make a high return on capital can sustain their returns for longer, suggesting that less creative destruction is taking place. The number of new, tiny firms being born is at its lowest level since the 1970s,” the article states.  A little later, the article says the following about Big Tech:

“An analysis by The Economist in 2016 suggested that about half the pool of abnormally high profits is being earned by tech firms. The big five platform companies—Alphabet, Amazon, Apple, Facebook and Microsoft—earned $93bn last year and have high market shares, for instance in search and advertising. They are innovative but sometimes behave badly. They have bought 519 firms, often embryonic rivals, in the past decade, and may stifle them. The data they gather can lock customers into their products. They may also allow firms to exert their market power “vertically” up and down the supply chain—think of Amazon using information on what consumers buy to dominate the logistics business. Investors’ sky-high valuations for the platform firms suggest they will, in aggregate, roughly triple in size.” [Emphasis added]

The internet industry presents its products and services—and frankly its ideology—as the antidote to decades of competition-killing in the market; and a big bullet point in this message is that a legal framework like copyright is an obsolete barrier stifling your potential. It’s an economic fairy tale meant to imply that if it weren’t for copyright being wielded by big corporations, you would have an easier time becoming the next YouTube star or killer-app developer. If that sounds like an exaggeration, I’ll remind readers of the time Julie Samuels of the EFF said in context to the “future of copyright” (2013) that “We want a thousand more YouTubes.”  I’m not repeating this silly declaration to pick on Samuels per se, but to highlight the fact that copyright advocates are frequently accused of standing in the way of absurd projections dressed up as legitimate market potential.

It is a political tactic—not a serious economic discussion—to predict an impossible outcome and then blame a group or a particular legal regime for preventing that outcome.  And I am intrigued by the extent to which so-called progressives fall for this narrative given how similar it is to the false argument that “all regulation is a barrier to jobs and prosperity.”  There seems to be a blind spot to the reality that the industry, which insists that copyrights are stifling opportunity in the digital age, comprises the companies with some of the worst track records for fostering any innovation they do not own.

It would be wrong not to include global media conglomerates (i.e. major copyright holders) in the universe of entrenched corporations that have benefitted from this trend of consolidation.  No question they have–even to the extent of self-parody as when Tina Fey’s series 30 Rock (2006-2012) consistently lampooned the relationship between product giant GE, its network NBC, and the late-night comedy show Fey’s character writes. But the deregulatory policies, dating back at least a half-century, which have resulted in some of the ill-effects of mega-mergers and massive consolidation, cannot be blamed on copyright law, even if copyright plays a small role in that larger narrative.

For individuals—especially artists and creators—to abdicate copyright in response to  corporate domination is as irrational as giving up the right of free speech because we don’t like the SCOTUS ruling in Citizens United.  Copyright is one of many policy areas in which we must decide either to continue tweaking the system or to abandon the underlying principles altogether.  By inappropriately invoking Schumpeter in this debate, the internet industry seeks to disguise the fact that it has roughly the same attitude toward copyright’s protection of creators as the extraction industries have to environmental law’s protection of the biosphere.  Perhaps it’s time for copyright skeptics to recognize that the most outdated aspect of this whole conversation is their stupid buggy whip analogy.

Photo by DelmasLehman

Critics Build House of Canards to Trash USCO Bill

Photo by jeancol1503

Well, here we go.  The network of copyright critics seems to be working out their main talking points for hating on H.R. 1695, which proposes to make the Register of Copyrights a presidential appointee (with Senate approval) rather than an employee of the Librarian of Congress.  Mike Masnick, founder/editor of Techdirt, has written a piece for The Verge that comprises (I think) all of the Greatest Hits from the anti-copyright songbook, including the popular jingle referred to in my last post about Mickey Mouse being the major force behind the 1998 Copyright Term Extension Act.

While it’s tempting to respond to each of the window-dressing fallacies deployed in Masnick’s article, it would also be tedious. (I just can’t come up with any more ways to mock the invocation of SOPA by that crowd.) As usual, Masnick wants to sell us an epic tale of Copyright vs. The Internet with statements like, “The copyright questions raised by the internet are existential.” He says this as though copyright law has never contended with technology before, or as if to imply that the internet is just a litigation or two away from being shut down.  And, of course, this “existential” threat will be masterminded by Hollywood and the RIAA through the new Register of Copyrights if the position were to become an appointee of the Executive.

This defies both historical evidence and common sense, concluding with the fact that the major rights holders are, at this point, all-in on this whole internet thingy. Like those companies that said “no thanks” to Trump’s EPA rollbacks because they’ve already invested substantially in going green, the proverbial, sinister Hollywood really has no interest in “breaking the internet.” Again, in reference to my last post, how much has Marvel invested in growing its franchise just on the Netflix platform alone?  Right. So, let’s put the doomsday hyperbole back in the crazy drawer where it belongs and talk about reality.

Politicizing to Criticize Politics

Masnick asserts two big bullet points in this article, one which coincides with one of EFF’s first responses, and one which coincides with Representative Zoe Lofgren’s testimony on Capitol Hill.  (Rep. Lofgren (D-CA) represents Silicon Valley’s district and is highly critical of copyright.)

The first major point Masnick (and the EFF) asserts is that if the Register position were to become a presidential appointee, this would “politicize” the role more than it already is and make the Register more vulnerable to industry influence.  With regard to bi-partisanship, the bill was introduced by Representatives Goodlatte (R-VA) and Conyers (D-MI) and passed out of committee with a vote of 27-1.  But beyond Congressional consensus, this “influence” allegation is an interesting one coming from a crowd that has already accused the last Register (by way of a smear campaign) of being about as subservient to major rights holders as one might imagine.

Nevertheless, Masnick et al seem to feel the next Register could “go to eleven” and be even more extra totally double-secret “captured” by Hollywood. And the way this will happen is by reorganizing the USCO relative to the LOC.  It’s an argument based on innuendo, laced with emotional triggers for readers (see references to SOPA & Disney); but there is no substantive case being made as to why this reorganization will increase the potential for inappropriate deference to major rights holders.

Let’s clear something up right now.  If you have a fairly high-profile job in the federal government, your role is at least a little bit political.  The Librarian can be politicized as can the Register of Copyrights no matter where he/she sits on the org chart. So, can we cut to the chase and just say that Masnick and other copyright critics are especially opposed to this change at this time because they see Dr. Hayden as a fellow copyright skeptic, and they would really like her to perhaps appoint another skeptic as Register?  In other words, they’re more than happy to have the role politicized as long as it furthers their view of the right agenda.

Meanwhile, there is no reason to assume that a supposedly “more political” pendulum will inevitably swing toward major rights holders like Hollywood studios. After all, the current President has a guy named Peter Thiel among his top advisors who absolutely espouses a world view consistent with the views of the internet industry.  I don’t see anyone from the recording or motion picture industries with such close ties to the White House at the moment; but this bill doesn’t actually give that much power to this or any other President. H.R. 1695 gives more power to Congress (ergo more public oversight than the status quo), and an amendment added by Rep. Jackson-Lee (D-TX) requires that the President choose a Register from a list of candidates approved by both the Congressional leadership and the Librarian of Congress.

As for who might end up on that list, it’s worth noting that in the quiet reality behind all this drama, there are probably a handful of candidates in the country who most copyright experts would agree are even qualified for the job.  Some of these favor stronger copyright protections, others favor copyright’s limitations.  Some are more ideological, others more centrist than the public might expect. And here’s a little secret:  they generally know one another, are in contact with one another, and respect one another’s differing views.

Misrepresenting the Role of the USCO

The second point Masnick stresses in his article is less speculative but not actually relevant to the purpose of H.R. 1695; and it is predicated on a misunderstanding about the role of the Copyright Office. He writes:

“Managing copyrights — effectively a giant database of creative works — is very much a librarian-centric job. Librarians are custodians of information, helping to catalog and organize it while also helping people research and find what they’re looking for. The Copyright Office today, like many old libraries, is filled with card catalogs.”

For a guy worrying about politicizing this issue, this is pure spin. In fact, Masnick is actually mirroring a tactic employed by Rep. Lofgren, who has tried to make this organizational change a referendum on Librarian Hayden herself. First, Masnick wants readers to think of the USCO as performing a library-like function; then he wants to point to past failures to properly modernize that function; and finally he wants to say that Dr. Hayden—and nobody questions that she is highly-qualified in her field—has a plan for modernization that will be disrupted by this organizational change.

But the Copyright Office is not a “giant database of creative works.” The complex, consultative function on copyright policy provided by the CO is an essential role performed by dozens of professionals with vastly different expertise than librarians. And both copyright experts and policymakers have known this for a long time.  To the extent that former Register Pallante, former Librarian Billington, or any past office-holders, are responsible for failures to implement IT initiatives, that’s on them and their tenures; but this has no bearing on the rationale for making the organizational change proposed in H.R. 1695. Moreover, former Representative Howard Berman (D-CA) writes the following in an editorial for The Hill:

“Claiming, for example, that former Register Pallante had done nothing on IT modernization rings hollow when it was Pallante who initiated and implemented a public consultation process, which led to publication of the most forward-looking IT modernization plan in the history of the Copyright Office.

The Library has thus far blocked implementation of that plan. While GAO reports have catalogued IT shortcomings at both the Library and the Copyright Office, these reports acknowledge that the problems at the Copyright Office are relatively few. Indeed the GAO has concluded these problems stem from the much larger, fundamental problems with the Library IT department, to which the Copyright Office is beholden.”

This suggests the very plausible conclusion that any past IT implementation failings were at least shared between the Copyright Office and the Library, and this provides no more grounds to abort the organizational change than it would be reasonable to hold Dr. Hayden responsible for past project-management problems.  Still, the over-simple argument Masnick wants to make is that a librarian will be better at the physical, data-management aspect of Copyright Office modernization.  Of course, that’s not why he and his colleagues are criticizing this bill. They’re hoping instead that Dr. Hayden will take a more hands-on approach to copyright policy, which has never really been a role the Librarian has played before or since the USCO was first established.

Masnick and other critics want to argue that the functional relationship between the Register and the Librarian is something more intrinsic than a circumstance of history that occurred 120 years ago.  But this simply isn’t the case.  As I’ve noted in other posts, the first Register was appointed in 1897 after influencers like Melville Dewey envisioned a new, national leadership role for the Library of Congress.  (And Dr. Hayden seems exceptionally well-suited to continue that vision.)

This change in direction for the Library led to the creation of a separate office for handling copyright registrations and, in a fledgling way, advising Congress on copyright policy. No Librarian ever truly performed the function of national expert on copyright as this would be inconsistent with both the function of the Library and the evolution of copyright law in the mid-late 19th century.

Right from the start, the Librarian and the Register were divided according to both function and expertise; and those roles have continued along separate, though related, paths as each department has grown. Attempts to frame this long-overdue, organizational change as a power-grab by Hollywood are unsupported by both history and by the process Congress is implementing to effect this change.

When Copyright Criticism Is Something Else

Photo by Tamagocha

A couple weeks ago, a comment on the Illusion of More Facebook page proposed that the Walt Disney Company was able to get its start in the 1930s because the story for the studio’s first animated feature film Snow White and the Seven Dwarfs was “in the public domain.”  I don’t mean to pick on one particular comment or its author, but there is a lot in this statement that reflects widespread misunderstanding about copyright law and how it works.

First, of course, is that most references to Disney are inspired by the almost universally-believed narrative that the Disney Company was directly responsible for extending the U.S. copyright term in 1998 to its present duration.  Hence, I assume the comment was meant to reveal a hypocrisy—namely that Disney needed access to the public domain that today’s creators don’t have—and they don’t have it because of Disney!  Indeed, that could be reason for outrage, if only it were true.

Disney Did Not Write the Sonny Bono Copyright Term Extension Act 

Although, Representative Sonny Bono would eventually become a co-sponsor and strong supporter of H.R. 2589, the legislation did not begin with him. The law bears his name as a posthumous honor bestowed after Bono died in a skiing accident, which occurred two months before the bill was first debated by the House Judiciary Committee.

Nevertheless, the internet loves a scandal and so helps keep alive the myth that Bono personally walked the halls of Congress with pockets full of Disney’s cash charged with the task of extending the copyright term to protect the Mouse. Disney was certainly among the rights holders who lobbied for the term extension, but they were one of many and do not appear to have played any special role or to have spent extraordinary campaign sums relative to typical expenditures of other rights-holding petitioners.

When the U.S. finally joined the Berne Convention Treaty in 1989 (a treaty that began in 1886), this mandated the change in our copyright terms from a fixed 56-year duration to life-of-the-author plus 50 years.  Then, as Europe moved toward formation of the EU (1992), that alliance mandated that all partner nations amend their copyright terms to life plus 70 years. In response, the U.S. Congress proposed the same terms in order to maintain parity in trade. And that was the main impetus for the term extension.* It’s not as dramatic a story as Mickey Mouse button-holing Members of Congress in the Rayburn Building, but it’s a digest version of how things actually happened. The SBCTEA passed with solid, bi-partisan, bi-cameral support and was signed into law by president Clinton in 1998.

Was Disney Relying on the Public Domain with Snow White?

Sorta, but not really.  Because the Brothers Grimm were collectors of tales that were part of an oral tradition, it’s a little difficult to view their works through a modern copyright lens and know which elements might arguably have been part of the commons at the time. Regardless, a hypothetical copyright could be granted for their unique telling of a particular tale, and this would apply to the story entitled Snow Drop, which is the underlying work that became Disney’s Snow White and the Seven Dwarfs.  But even if we were to imagine a copyright in that work under current terms, then it would have expired 70 years after Jacob Grimm’s death, which brings us to 1933—four years before Disney made the movie.

So, yes, the story of Snow Drop was in the public domain at the time, but not in the way the commenter—or indeed most copyright critics—mean when they seek to argue that contemporary terms are onerously long.  The general assumption is that in 1937, Disney had a richer and deeper well of material to build upon than contemporary creators have at their disposal, and that Disney then used copyright law to close the proverbial door behind them to keep everyone else out.  While it may seem intuitive that copyright’s current terms would stifle the growth in works since 1998 (or some think since 1790), that belief is not supported either by statistical or anecdotal evidence.

Disney May “own” Snow White, but They Don’t Own Snow White

Feeding this false narrative is the idea that copyright “locks up” works for long periods, keeping them out of reach of new creators.  Although nearly every author will confirm that building upon existing works, ideas, tropes, themes is part of the creative process, this fact is not so greatly in conflict with copyright’s boundaries as many a non-creator pundit would have us believe. And Snow White is as good an example as any.

A creator—whether Disney or anyone else—may only protect a unique telling of this classic tale.  Ditto The Little Mermaid, Beauty and the Beast, Pinnochio, and many other titles in the traditional Disney oeuvre. The studio may only enforce copyrights for its versions of these stories; and for Disney, the most valuable aspect of their work is often the pictorial, graphic, or sculptural (PSG) interpretations of the classic characters (see Disney merch).  But the relevance of the idea/expression distinction here is, I suspect, overshadowed by a different phenomenon, which is really a complaint about market dominance.

One could argue that the “Disneyfication” of classic tales can have a homogenizing cultural effect because the company’s vast resources enable, for instance, a single interpretation of Snow White to dominate popular imagination for generations. This is a valid criticism or conversation to have, but it’s one about American culture, business, and marketing that isn’t really influenced by copyright terms as much as people may assume. Nevertheless, I suspect responses to these cultural or aesthetic criticisms tends to color the copyright narrative, particularly when invoking Disney.

If anything, copyright only helps to mitigate creative homogenization by disallowing unlicensed copying of what some may view as corporatized versions of stories and characters. As Harvard scholar Joseph P. Fishman pointed out in his study in 2014, boundaries like copyright tend to be generative for creators, while too much freedom to copy can actually stifle originality. Creators don’t really need a study to know this is true; they can tell you this from experience.

What About the Comics?

Moving on to a different part of the Disney organization, we have the Marvel franchise.  These more contemporary works comprise characters and narratives that many people believe belong in the public domain because they are so ingrained in common culture that it feels like these classic heroes and villains belong to all of us.  But one aspect of this idea that is often overlooked is that these characters attained that place in our hearts and minds because they were controlled franchises.

If you were a Daredevil fan growing up, you didn’t wait with anticipation to hear what your friends thought should happen next, you waited for the next issue to see what really happened next.  Without this common experience shared by fans, Daredevil would not have become a staple of the Marvel universe—and neither would any other character.

The assumption promoted by copyright critics is that when Daredevil falls into the public domain, this will spawn new, innovative ways to build upon the character for more creators.  Perhaps, but not necessarily.  As noted in an earlier post, even with PD works, we tend to see that one version at a time emerges for a period because the market only sustains so many variations at a time.  The example I cited previously is that it would be tough to compete right now with the Sherlock Holmes TV series starring Benedict Cumberbatch; and this is true for reasons having nothing to do with copyright.

So, it seems that a lot of copyright criticism, in certain contexts, is tangled up with aesthetic or emotional sentiments associated with popular and famous stories and characters.  There will always be consumers who don’t like the way a popular work is treated, even by its original creator. Just look at Star Wars. For every ten million fans, there are a hundred million opinions about what George Lucas did, or should have done, with his franchise.  But it was his franchise. If you want to decide the fate of a new multi-billion-dollar franchise, you’ll just have to invent your own.  And as many readers know, that’s exactly what Lucas did when he couldn’t get the rights to make Flash Gordon. 

*As a colleague noted since publication, there was more to this than trade harmonization; but without enumerating the various terms of copyright for different works, suffice to say that it still wasn’t about Disney and Mickey Mouse.