Category: Copyright

A Free Press Needs to Be Expensive

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Photo by stocksnapper

As a follow-up to my last post, I see that the Electronic Frontier Foundation has (not surprisingly) also accused the News Media Alliance (NMA) of petitioning the incoming administration to “weaken fair use doctrine” and, by extension, threaten press freedom itself.  Granted, in contrast to Mike Masnick’s ad hominem style on Techdirt, when EFF obfuscates, they usually write a more sober, mature-sounding article, but readers should not be mesmerized by the parlor trick.  Because they’re still not telling the whole truth.

At a time when Americans are suddenly realizing that professional journalism may be more important—and more under siege—than ever, both citizens and advocacy groups like EFF should remember that good journalism is expensive.  If we don’t want news to devolve entirely to the glib gotchas of Twitter, then somebody has to invest in the reporters, researchers, editors, etc. who develop the skills and experience to cover stories with integrity.  In order to make those investments possible, to say nothing of profitable, publishers have to retain the right to protect and exploit the products of this labor through distribution models of their choosing.  So, while fair use doctrine is unequivocally necessary for journalism, this reality is not in conflict with the need for news publishers to protect their copyright interests at the same time.

Frankly, in light of the fact that the anti-copyright policies advocated by EFF and similar organizations have played a substantial role in creating information havoc, like the fake news problem, I think when it comes to the press, these groups ought to be rubbing gravel in their hair—or at least sent to their rooms to think about what they’ve done. Years of blind—and greedy—advocacy of anything goes under the ambit of the First Amendment is a major reason why real journalists have to compete with bogus ones,  and why news organizations continue to have their investments threatened by various platforms and tech interests that appropriate their work.

In the EFF’s version of accusing the NMA of trying to weaken the fair use doctrine, they  set up a straw man and then point to a bunch of unrelated “evidence” to support the accusation.  As stated in my last post, the NMA’s white paper does not seek any revision to the fair use principle, but it does call into question the relatively recent, broadening interpretation of the “transformative” standard within fair use analyses.  The EFF article might give readers the impression that this standard is a well-grounded and longstanding legal principle, but that simply isn’t the case.

If we bracket the “transformative” standard between the first major application in Campbell (1994) and the most high-profile, current case, Google Books (2016), we see that we’re dealing with two very different meanings of the word “transformative.” ”Transformativeness” in Campbell entails a use to create a new expression while “transformativeness” in Google Books entails a use to create a new service that is not an expression. While both uses can be valuable, and even described colloquially as “transformative,” it is misleading to suggest that the case law in which this standard has been applied is consistent, given the divergent meanings of the term.

It is the application of the latter standard that is of concern to many rights holders, including news publishers. This is because the latter interpretation substantially alters the original intent of fair use, which is to favor the First Amendment, to a more generalized standard of “creating some new thing,” which may not be a form of expression at all. It is also worth noting that most uses by journalists have always been protected by fair use principles that existed prior to the introduction of the “transformative” standard by Pierre Leval in his 1990 Harvard Law Review paper.

The truly insidious part of this story is that the EFF has been directly responsible for morphing fair use doctrine in both the courts and the court of public opinion.  With its decade-long boondoggle in Lenz v UMG, and its chronic implication that fair use is the antithesis of copyright (rather than an important component of copyright), the EFF fails to recognize that its advocacy in this regard can be more harmful to free expression and a free press than the concerns it claims to address.  While the organization defends the role of aggregators and other platforms that make uses of works they did not author, the EFF ignores some of the very negative results of this policy, which have become starkly manifest in recent weeks.

For instance, the violent assaults on a Washington, DC pizzeria as the consequence of fake news is not exclusively a story about criminal instigators and idiot readers. It is symptomatic of a disease caused when serious journalism is given equal footing with the ravings of every crackpot or miscreant with a keyboard.  This trend has been toxic for the press, and it is naive to think that defending every use and every expression on First Amendment grounds has not been an aggravating factor in this case.

In some instances, news aggregators do not merely provide access to news, but they often strip news of context or substance by repackaging segments in a manner that may be good for driving traffic but do disservice to the goals of journalism.   Press freedom is utterly meaningless unless we support a professional press, and the News Media Alliance is correct to observe that relatively recent distortions of the fair use principle have played a role in threatening that professionalism.

Masnick Makes a Hash of Fair Use & Censorship

Photo by Pond5
Photo by Pond5

In an effort to conflate president-elect Trump’s rhetoric on censoring the press with copyright protection, Mike Masnick at Techdirt accuses the News Media Alliance of seeking to “whittle down” fair use. He further says this will only leave journalists vulnerable to the kind of censorship Trump has threatened by amending libel laws.  There are too many holes in Masnick’s post to address efficiently, so I’ll stick with the main point about fair use doctrine. The Newspaper Association writes the following:

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.”

For starters, this statement isn’t asking anyone to “whittle down” fair use. Instead, the News Media Alliance is simply asserting what many copyright experts and rights holders have observed, which is that the “transformative” standard is in fact a relatively new and often-vague principle that has become something of a vestigial fifth factor not codified in the 1976 Copyright Act.  In fact, “transformativeness” began as a measurement of creative transformation in the landmark case Campbell v Acuff-Rose but has since been applied in broad contexts in which uses are “transformative” of something other than the original work to create a new expression.  

So, “transformativeness” can exceed the original free-speech motivations for codifying fair use into the federal law in the first place.  And that in itself is not inherently bad; we want law to be elastic to a certain extent, otherwise copyright itself could not have adapted to changing market and technological conditions. 

Having said that, however, the “transformative” standard has come dangerously close to asserting that simply using a work in a new context—like posting it on social media—is “transformative” enough to make the use fair.  So, the Alliance is not attacking fair use doctrine at all, as Masnick asserts, but is rather seeking to mitigate what many rights holders view as an irrational expansion of the doctrine until it ceases to be an exception at all.  

The part where Masnick accuses the Alliance of playing into Trump’s censorship hands is just a malarky cocktail well spun.  He writes the following:

“While [Trump] was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.”

Masnick is mashing up unrelated topics to argue the interests of OSPs like Google and taking the opportunity to use the words copyright and censorship in the same sentence. As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the “transformative” standard being referred to by the News Media Alliance. 

For instance, I noted in a past post that a FOX Network initially sought to argue that its use of another news agency’s photograph was “transformative” simply because it was posted on their Facebook feed.  That argument didn’t get very far, but it’s the kind of argument rights holders are nervous about arriving in the courts; and it has nothing at all to do with legitimate concerns about a president threatening to use libel laws to silence the press. For another perspective on how the “transformativeness” standard can come very close to effectively obliterating copyright, see this post about TVEyes v FOX News.  

As usual, the internet industry and its advocates behave as though their platforms, which make unlicensed uses of all manner of works, are synonymous with free speech or freedom of the press.  From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright.  That is ludicrous.

Copyright Still Essential to Economic Future 

iipa-infographicThere is a lot of anxiety about jobs these days and with good reason.  The subject of trade has a lot of people on edge, and we’re only just beginning to talk seriously about the very real prospect of automation killing middle-class jobs in places other than the obvious repetitive factory work.  As theoretical physicist Michio Kaku predicts in a video on BigThink.com, AI won’t replace everything.  “If your job is repetitive, if your job simply involves the friction of capitalism, that is, middlemen work, your job is doomed.  However, if your job involves creativity, imagination, innovation, thinking, experience, leadership, hey… there’s a bright future for you.  Because the economy itself is changing from commodity-based capital to intellectual capital.  Intellectual capital cannot be mass produced,” Kaku says.

2012 was the first year the “core copyright industries” broke the trillion-dollar mark for contribution to U.S. GDP, and that number has grown steadily since, with 2015 weighing in at $1.2 trillion according to the latest report from the International Intellectual Property Association (IIPA.)  As in the past, the new IIPA report shows the core copyright industries as growing at a faster rate (4.81%) than the entire rest of the American economy (2.11%). What it defines as the “core” includes industries directly associated with copyright ownership (e.g. publishing, movies, music, software), which continues to support about 5.5 million fairly high-paying middle-class jobs.  The IIPA also notes that what it defines as the “total copyright industries,” including those that derive direct benefit from the “core industries,” as supporting over 11 million jobs.

Critics of these types of positive-outlook reports often respond by asking rhetorically why then do copyright owners complain about infringements like large-scale piracy when they seem to be doing just fine?  To me, this is a bit like saying, “The air is breathable today, so why do we need environmental protections?”  Piracy is only one threat to copyright; another is a mindset that the purpose of copyright is largely obsolete in the digital age.

It is also important to maintain a perspective which distinguishes between macro views and micro views.  In the big picture, these types of reports from the IIPA reveal that investing in intellectual property overall remains a robust and positive sector.  This macro view will not, however, reveal specific subsections of the “core industries,” like the independent photographer whose works are appropriated in ways that eat away at the combined revenue streams for his small business.  I addressed a similar matter in this post with regard to the difference between major motion picture profitability writ large versus the effects of piracy on an independent production.

It has long been believed that as the market becomes more automated, the jobs that depend upon human creativity will never be taken over by the robots.  As Kaku points out, despite what the sci-fi writers say, AI doesn’t perform these tasks particularly well.  There are plenty of computer scientists who might beg to differ and certainly at least a few who insist that one day an AI will compose and perform symphonies, write novels, and make movies. But before we time-travel all the way into that reality, we currently live in a market economy that needs jobs to put food on the table.  And for the moment, the investment in copyright-based industry appears to offer better returns than many other sectors.

In this regard, the presidential transition represents a tricky moment for some of us.  The president I like, and I suspect a lot of creative people like, has not been good for IP and has been particularly starry-eyed when it comes to Silicon Valley’s influence on copyright policy.  I have repeatedly asserted that when many of the OSPs say “innovation,” what they really mean is non-creative destruction, which siphons value from certain kinds of labor without replacing it with new and comparable forms of labor opportunities. Now, as Andrew Orlowski observes in a new article for The Register, president-elect Trump’s Strategic and Policy Forum has “snubbed” the bigwigs of Silicon Valley, which Orlowski suggests reflects an understanding that Facebook and Google are simply not major job creators.

Personally, I’d like to see a balance on that forum. I don’t think we’re putting the internet on the shelf, and we’re certainly not going to effectively manage the 21st century economy by pretending digital technology and networked systems don’t exist.  But there’s also no denying the fact that the Obama administration was remiss in properly valuing the economic and social significance of copyright-based work, as evidenced by tone-deaf policies like the DOJ ruling on 100% music licensing, the FCC “unlock the box” proposal, and to an extent, even the policy direction of the Library of Congress.

One way or another, it would be great to see copyright become non-partisan again like it’s supposed to be.  Because no matter what other issues are in play, copyright supports one aspect of American life that I think we can all agree on—and that’s the bounty of creative works nearly everyone taps into every day. That’s the fun part of America, remember? These works don’t generally pollute the environment, cause adverse side-effects on users, or even break treaties with indigenous tribes.  And the fact that the fun industries sustain millions of good jobs, contribute nearly 7% to the U.S. economy, and add up to $177 billion in exports is kinda cool. Why wouldn’t we protect that?