Category: Copyright

Public Knowledge Declares Copyright Office is Full of Copyright Professionals

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In a document Public Knowledge has the conceit to call a “report,” the organization now proposes that the US Copyright Office is trapped in a state of “regulatory capture.”  Usually, this is a term reserved for a condition that arises when the people who work at a regulatory agency become either culturally or economically too close to the industry they’re supposed to be minding.  The most obvious and acute example we’ve seen is when employees working at the SEC have been offered lucrative gigs on Wall Street and this kind of big-money careerism drives their regulatory decision-making.   (See The Big Short for a brief dramatization of the phenomenon.  And don’t pirate it!)

The Copyright Office, of course, is not a regulatory body like the SEC, though it does certainly play a leading role in setting copyright policy for the nation through its analysis and recommendations on a variety of topics.  The USCO does not decide legal cases or pass copyright laws. Part of the Office’s mandated role is to consider a broad range of copyright-related issues, while accounting for the views of a diverse group of stakeholders, and to make recommendations that uphold the full scope of copyright’s purpose, including exceptions and limits to legal protections for rights holders.

Given the mission of the Copyright Office, the institution tends to attract employees who (brace yourself) think copyright is a good thing and who are predisposed to emphasize copyright’s benefits to the nation. That’s going to irk anyone who views copyright as a negative–like the folks at PK–but it certainly does not mean the office is “captured” by large, corporate rights holders.  PK’s accusation is one that might play well in a climate of general distrust of all government agencies, but the evidence they present in order to prove that the Copyright Office is amok with industry sycophants is not only thin and circumstantial, but is also remarkably hypocritical if one takes a peek under the rug in the Public Knowledge foyer.

One might notice, for instance, that Public Knowledge co-founder Gigi Sohn is now lead counsel at the FCC, which has been pushing a “set-top-box” proposal that the Copyright Office has critiqued within the ambit of its statutory role. What PK doesn’t like, I suppose, is that the CO disagrees with their assertion that the FCC proposal “has nothing to do with copyright,” so now PK has moved into full-court press to discredit the whole Office as functionally biased.  One might think that with Gigi Sohn as the common denominator in this story—and Google as the clear winner if the FCC proposal were to pass—PK would tread a bit more lightly with accusations of cultural “capture,” but not so much.  When you’re shielded by the appearance of representing “public interest,” you can get away with almost anything.

The Revolving Door Accusation

To support its premise, Public Knowledge, with McCarthy-like righteousness, presents a list—a table of thirteen former or current employees of the Copyright Office who either have worked for private-sector, rights-holding organizations prior to working at the Office or who are now working for these private entities after their terms at the Office.  That thirteen copyright attorneys over a 22-year period might be employed in some capacity for copyright owners is a rather unremarkable observation, but PK seems to think it’s a smoking gun.  Of course, they had to stop the list at thirteen because the fourteenth former CO employee might have been leading copyright attorney William Patry, who now serves as senior counsel to Google (I guess they didn’t want to mention that one).  Or, as one of the named thirteen, Steven Tepp, observes in his response, PK also didn’t bother to list the many other Copyright Office employees who, “went to Internet and tech companies, the Smithsonian, the FCC, and other places that no one would mistake for copyright industries.” One might almost get the idea that experienced copyright attorneys pursue various career paths or something.

To be utterly pedantic about it, is PK actually suggesting with its little chart—that the IP law firm, where Marybeth Peters took an advisory role after leaving the Copyright Office in 2010, only gave her that job after they confirmed that 16 years’ worth of her copyright analysis as Register consistently favored “industry”?  And which industry would that have been exactly?  The D.C. firm named by PK provides counsel on copyright, patents, and trademarks; and you can bet your boots they’ve had a few technology clients, and probably quite a number of other clients outside the unholy trinity of music, motion pictures, and publishing.

PK also notes that Peters now serves (part-time) on the board of Copyright Clearance Center, a private organization that states, “Our vision is to create global licensing and content solutions that make copyright work.”  That almost sounds like 21st-century innovation to streamline digital content licensing, which is exactly what CCC does.  So how is this career move by Peters evidence of “capture” at the Copyright Office? It’s not. PK is assuming nobody will look at the details and will accept their premise at face value.

Now, I could point out that a “revolving door” table comprising a few hundred key federal employees would list in its right-hand column not a variety of private-sector roles, but just one company called Google.  And that in itself is not a smoking gun, per se.  Google produces a lot of highly-skilled technologists, who perhaps should work in the public sector.  But if we’re talking cultural “capture”, let’s be real.

Views on Copyright

As consequential evidence of the CO’s “capture,” Public Knowledge accuses the office of contorting copyright law; serving the interests of rights holders; advocating for expanded copyright; sticking its nose where it doesn’t belong; ignoring stakeholders; and (bizarrely) being generally ignored or rejected by the courts, Congress, and other agencies.  Holy smear campaigns, Batman, that’s quite a laundry list of accusations. But then, it’s SOP for Public Knowledge to present the part of the story that supports their accusations while ignoring the rest of the facts.

For instance, it is true that the courts have at times disagreed with the recommendations or interpretations of the Copyright Office.  But quite often, they haven’t.  Welcome to the law. Debate on principle or interpretation is part of the process and always has been. So, unless Public Knowledge wants to roll up its sleeves and present real data—not cherry-picked anecdotes—that show clear evidence of consistent bias in the USCO and conflict with the courts, then what they really appear to be saying is, “The CO disagrees with us, so it must be corrupt.”

One could cite numerous examples as to why this accusation is unfounded, but a rather compelling one would be the Copyright Office’s latest round of Rule Making on exceptions to Section 1201 of the DMCA.  As I reported in this post, the recommendations from the CO reveals that the Office generally favored the parties petitioning for exceptions rather than the rights holders arguing against those exceptions.  According to Tepp’s rebuttal cited above, the 22 exceptions allowing circumvention of TPM is an unprecedented number.  Meanwhile, Section 1201 of the DMCA is a fairly contentious issue among copyright watchers and direct stakeholders, but it’s a subject that remains arcane for most citizens.  As such, it seems like a perfect opportunity for the Copyright Office to exercise the “maximalism” of which it now stands accused, yet the record reveals exactly the opposite trend.

Why is Being Anti-Copyright the Only Non-Corrupted View?

Public knowledge states the following as a prelude to its accusations that the Copyright Office is on a perpetual copyright contact-high from partying with rights holders:

“Beyond the revolving door, frequent gatherings—both formal and informal—of Office staff and industry representatives provide further evidence of cultural capture. For example, the Copyright Office organizes a series of ‘Copyright Matters’ lectures, both ‘to provide education and training’ to Copyright staff and to serve as a larger ‘community forum.’”

Remember when Obama, as a brand new president, was going to speak to kids at the start of the school year, and the Republicans went all ape-shit and declared, “He’s going to indoctrinate the kids!!” That was a pretty crazy-pants moment for America, right?  Same thing here.  Yes, let’s be clear once again:  the Copyright Office generally believes copyright is good for the country. You will also find employees of the EPA who dig clean air, several members of HUD opposed to homelessness, and at least a few folks at the DOD who err on the side of security and are prone to wearing uniforms.

Maybe Public Knowledge thinks the Copyright Office is culturally corrupted because so many of PK’s own copyright positions are just kinda bananas to people who know the law and who don’t view copyright as a pernicious regime.  Y’know on account of the fact that copyright has been pretty good for us. For the first 50 years, the U.S. hardly had much of a culture industry at all, but by the mid 20th century, it was the world’s leading producer of creative works, and that production created a lot of really good jobs—way more jobs than all of the internet giants combined have produced or are likely to produce.

Even beyond copyright, though, Public Knowledge’s “report” compiled of innuendo and half-truths reflects a core dysfunction, in my view, with all contemporary politics. It almost doesn’t matter what the issue is, the theme across the political spectrum is one of tearing down institutions and systems rather than any engagement in a good-faith debate that might actually improve a system. This is understandable because the game is rigged.  We have allowed corporate values to write public policy in far too many areas, and people are being hurt as a result.  But PK is not critiquing—let alone debating with—the Copyright Office, it’s gunning for its very existence and gunning for copyright law itself.  If anyone believes that agenda is in the public interest, they are sorely mistaken.

 

FCC Set-Top Box Proposal Is About Copyright

Let’s clear one thing up right off the bat. Consumers are not entitled to high-quality TV programming.  It’s a business. If that business doesn’t make sense, the shows won’t be produced.

I know that seems obvious, but as with so many arguments made by technology companies seeking to hijack the distribution of works for themselves, this latest one  seems to proceed from a typical assumption that the “content” will just be there no matter what.  As I said in an earlier post on this same subject, if the producers and distributors are correct in their criticisms, the FCC set-top box proposal could provide consumers with new methods of acquiring a lot less content over time.

In a nutshell, the TV programming we enjoy is made available because the producers (copyright owners) enter into licensing agreements with distributors, referred to as Multichannel Video Programming Distribution (MVPDs). Generically we tend to call MVPDs “cable providers,” but MVPDs include satellite and various other ways to receive television programming that has been licensed from the copyright owners.  These licenses sit on top of a network of other licenses between the producers and their suppliers, advertisers, etc. For instance, the actors on a show not only receive fees for their performances but also have residuals and health & pension plans paid through SAG from those licensing fees that are paid by the MVPDs.

Not to say it’s complex, but Register of Copyrights Maria Pallante, in her 17-page August 3rd letter to the FCC, referred to “a constellation of arrangements between MVPDs and program producers.”  Pallante further states …

“… the copyrighted works that make up an MVPD’s multichannel video programming are produced and made available to the public only as a result of complex, private negotiations between content owners and MVPDs, and on the understanding that the MVPDs will make works available to the public in accordance with the terms of the resulting licenses. Typically, a violation of the license terms will constitute either copyright infringement or breach of contract.”

What the FCC says it wants to do is to unchain consumers from the dreaded box — that thing we rent from the cable companies to unscramble the channels, and which symbolizes whatever frustrations we might feel with the service, the pricing, or the lack of competition in the pay TV market.  I feel these frustrations myself, so on the surface, Chairman Wheeler’s proposal to give me options to watch TV more flexibly—through tablets, smart TVs, and other products sounds appealing.  But there’s a bug.

The proposal would mandate that the MVPDs make their programming and data available to third-party manufacturers of devices (surprise, Google is one of these), who would not pay license fees but would be free to distribute, brand, and monetize with advertising as they see fit.  The producers and the MVPDs have argued that this circumvents the aforementioned network of complex and costly licensing; and some producing interests have also raised the concern that because these third-parties operate on web platforms, a more seamless integration between legal and illegal viewing may exacerbate the adverse effects of piracy on the market.

The Electronic Frontier Foundation asserts that none of the criticisms of the FCC proposal made by producers and MVPDs implicate copyright law at all.  Mitch Stoltz of the EFF this week argued that the proposal is exclusively about allowing new technology products to come to market and to provide consumers with new choices.  Interestingly, despite his insistence that the proposal has nothing to do with copyright, Stoltz—and Cory Doctorow in a companion EFF post—refers to one of the most important copyright cases to support this position.

Sony v Universal (aka the Betamax case) is the reason consumers may use recording devices for “time-shifting” TV programs for their personal use; and these proponents of the FCC proposal appear to be arguing that Sony provides the only precedent needed to reject any further consideration of copyright in this matter.  Stoltz writes …

“Copyright gives rightsholders power to control copying, but not technology design. In fact, that sort of control is the antithesis of copyright’s purpose. Over thirty years ago, in Sony v. Universal, the Supreme Court refused to allow movie studios to “extend [their] monopoly” into “control over an article of commerce”—the videocassette recorder—“that is not the subject of copyright protection.” Today, you can search all 280 pages of the Copyright Act, and you won’t find anything that says a copyright holder has the power to control search functionality, or channel placement, or to decide who can build a DVR or video app.”

But here’s what Register Pallante says about Sony in her letter to the FCC:

“Sony itself focused on the distribution of an article of commerce where the seller had no ongoing relationship with the purchaser after the sale, and no connection to the content being exploited.  Nor did the Court address fair use where the device distributor was itself engaged in copying activities, as opposed to private home users. Both of these factors could conceivably be present with respect to devices and services under the Proposed Rule.  Nor have courts gone so far as to obligate rights holders to provide content in a manner that would facilitate time-shifting or other non-infringing uses.” 

So, maybe the FCC proposal has a little to do with copyright.  And that word obligate is an important one, referring back to my opening note that there is no right to TV programming.  Its production has to make sense as a business, and that only works because of copyright.

A rights holder of any work has the discretion to make decisions about the manner in which that work is distributed.  This is in fact fundamental to copyright’s purpose.  If you write an autobiographical novel about a serious subject, for instance, not even your publisher may blithely repackage it with a steamy romance cover (unless you sign those rights away) because they think it will sell better.  But that’s basically what the third-party manufacturers want to do.  They want the federal government to compel MVPDs to deliver programming and data to them, for which they will not pay a license fee but will be allowed to distribute, package, and advertise against the works in any way they see fit.

The implications of that business model go well beyond the scope of mere gadget-making, clearly falling into the purview of copyright law.  Kevin Madigan on Mister Copyright summarizes the distinction between the device and the model thus:

“The difference with the current navigation device manufacturers is that they will receive copyrighted TV programs to which they’ll have unbridled liberty to repackage and control before sending them to the in-home navigation device. The third-party device manufacturers will not only be able to tamper with the channel placement designed to protect viewer experience and brand value, they will also be able to insert their own advertising into the delivery of the content, reducing pay-tv ad revenue and the value of the license agreements that copyright owners negotiate with pay-TV providers.”

That’s not what VCR’s (and now DVRs) do, and I’d be surprised if any court had much patience for a party relying heavily on Sony to support the FCC proposals. Additionally, as reported, the EFF recently took the bold step of suing the federal government on the grounds that Section 1201 of the DMCA is unconstitutional. Perhaps their assertion that the FCC proposal has “nothing to do with copyright” presumes that they have already won this argument because Register Pallante recognizes a “tension” between the FCC proposal and the 1201 anti-circumvention measures in the DMCA ….

“The Proposed Rule would inhibit the ability of MVPDs and content programmers to develop, improve, and customize technological solutions to protect their content in the digital marketplace.  It would do so in part by requiring MVPDs to give third-party actors access to copyrighted video content and associated data according to one or more security standards prescribed by an outside organization rather than through their preferred (and potentially more secure) protocols negotiated between copyright owners and the MVPDs. In addition, the Proposed Rule suggests that the FCC might allow third parties to self-certify their compliance with whatever security standards are adopted.  The Proposed Rule would thus undermine content creators’ ability to choose how best to protect their content in the marketplace, as Congress intended in enacting DMCA.”

Between Stoltz’s latest editorial and the recent suit over 1201, it seems the EFF is increasingly uninterested in working with copyright law and is focused on efforts either to abolish it or simply pretend it doesn’t exist.  This post is not meant to suggest that I can endorse every business practice of every MVPD, but the EFF’s assertion that these parties are “cloaking” anti-competitive practices in false claims about copyright is misleading.  Moreover, it should be abundantly clear by now that if the name Google is on the list of providers seeking a new regime from a federal agency, then customer choice and free-market competition are likely not at the forefront of that effort.

EFF says Section 1201 of the DMCA is Unconstitutional?

Last week, the Electronic Frontier Foundation filed suit against the federal government, naming the DOJ and the Copyright Office as defendants.  The EFF filed on behalf of plaintiffs Dr. Mitchell Green, a computer scientist and researcher at Johns Hopkins; Andrew Huang, an engineer and inventor; and Huang’s company Alphamax LLC.  The crux of the suit argues that Section 1201 of the DMCA, which prohibits circumventing technical protection measures (TPM), or trafficking in devices used for circumventing these measures that are designed to protect copyrighted works violates the First Amendment and is, therefore, unconstitutional.

The most common type of TPM consumers tend to be aware of are applications like the software on a DVD that prevents or mitigates illegal copying of the contents; but TPM are increasingly used in a broad range of devices and products because, of course, computers and software increasingly run everything we touch. For this reason, 1201 applies to a wide range of classes of copyrightable works, including software itself, and so the debate over the law invariably conflates movies and medical devices or cellphones and tractors, which means the public dialogue can be rather confusing for most of us.

We read a brief assertion in an article by Cory Doctorow—or even an opposing view—and the nitty-gritty may be ten pages of complex analysis by the Copyright Office that few people will read let alone fully understand.  Meanwhile, consumers should keep in mind that absent the provisions in 1201, products like DVDs, iPods, and Kindles would simply not exist because rights holders would not have licensed their works for distribution on these platforms. And it is characteristic of the EFF and its colleagues to focus on the restrictive aspects of a legal framework while ignoring the productive ones.

In simple terms, it is illegal to circumvent TPM, whether the copyrighted material being protected is entertainment media like an eBook or it’s the software that runs a medical device or the systems in your car. The EFF’s criticism weighs heavily on the fact that it is a violation of 1201 to circumvent TPM even if the intent is not to infringe copyright, but there are also permanent and termporary exemptions in force, recommended by the Register of Copyrights, that allow for circumvention in a number of circumstances. Every three years, the Copyright Office reviews applications for exemptions, though this process itself has been called “onerous” by the EFF and others and is likewise implicated in the question of constitutionality of the 1201 statute.

As mentioned, there are three named plaintiffs in this suit, though one can think of Andrew Huang and his company Alphamax as representing the same interests.  But in an effort to keep this post under 2,000 words, I’ll focus on the complaint regarding Dr. Green and EFF’s broad complaint that the Copyright Office triennial review process is itself stifling free speech.

That Dr. Matthew Green’s Security Research is Being Stifled

Likely, the most compelling and easiest to understand complainant is that of Dr. Green, who conducts important research into, among other things, the security systems of automobiles. This was the focus of his application for an exemption to 1201 during the last triennial session.

Dr. Green explains on his blog that because the Copyright Office failed to grant the exemptions he applied for, that a project underway in the Fall of 2015 had to be conducted in a manner less efficacious and less thorough than the best method available. He also implies that the opposition to his application from the Business Software Association might have carried undue, industry weight in the decision-making process.  But a review of the Register of Copyright’s analysis and conclusions regarding the relevant class of exemptions reveals that the Copyright Office was substantially more sympathetic to the testimony of Dr. Green and his co-applicants than it was to the opposition arguments of either the software or automotive industries.

In fact, the Copyright Office, in its Final Rule issued on October 28, 2015, recommended a broad exemption for “good faith” research like the work being conducted by Dr. Green, but it also recommended a 12-month waiting period to implement this exemption.  Although this delay may be a source of frustration for researchers and the EFF, it was not proposed due to industry opposition to the exemptions. Instead, the Copyright Office recommended the one-year delay in deference to various federal agencies that had weighed in with concerns regarding some of the proposed exemptions.

For instance, the EPA stated that certain aspects of the work to be conducted could “slow or reverse gains made under the Clean Air Act.”  How?  I have no idea.  But neither does the Copyright Office because they’re not authorized to have an opinion about the environment. So because some of the concerns raised are outside copyright’s purview, the Register proposed  the delay in order to give other federal agencies time to review. That’s what they’re supposed to do, and neither Dr. Green nor the EFF appear to acknowledge that there is an extent to which this research is being slowed by federal agencies which have nothing to do with copyright or Section 1201.

Moreover, the timing of EFF’s big play to argue the unconstitutionality of the entire law is odd in light of the fact that the Copyright Office is largely in agreement with applicants like Dr. Green. In fact, the Copyright Office could not have been more clear in its agreement that the current permanent exemptions for security research are not sufficient to protect Dr. Green and his colleagues from liability.  But when the office called for recommendations to 1201 in the beginning of this year, neither the EFF nor any of its sister organizations filed comments with a view toward amending these permanent exemptions.

So, one question worth asking is why the EFF does not use its considerable resources to seek amendment(s) to the permanent exemptions rather than work toward the less likely outcome that the entire statute will be declared unconstitutional?  After all, as a practical matter, if the real interest is enabling people like Dr. Green to work at his best as soon as possible, fixing the permanent exemptions is a far more practical enterprise than the prospect of having the Supreme Court vitiating all of 1201 several years from now. This seems especially true when the Register already agrees that the current statutes are inadequate.

That the Triennial Review Process is Stifling Speech

Roughly one-third of the EFF’s complaint focuses on the alleged inadequacy of the triennial review process itself. Their contention is that the process is so cumbersome and slow that it fails to fulfill its purpose to provide an adequate counter-balance to 1201’s restrictions and also constitutes a prior restraint on speech by delaying applicants’ ability to engage in otherwise legal, non-infringing research or publication.

Two things seem odd about this section of the complaint.  The first is that it focuses on 1201’s alleged, broad infringement of the speech of filmmakers* and teachers despite the fact that the named plaintiffs in the lawsuit applied for exemptions having nothing to do with filmmaking or teaching.  The second is that the Copyright Office actually did recommend exemptions for a large number of requests pertaining to filmmakers and teachers, though, apparently these did not go far enough for the EFF, which scorns rejections—like an exemption for “narrative filmmakers”—as evidence that 1201 is stifling speech.  Of course, considering this particular class of filmmaker begs detailed analysis because the majority of narrative film uses are not generally fair uses. So, this part of the complaint begins to sound like EFF may be making its usual free speech mountain out of a copyright molehill.

Also, with regard to the alleged onerousness of the review process, the public should note that the process is a rather large task resulting in decisions that have far-reaching implications throughout the market.  Exemptions apply to everyone, not just the applicants.  So, when the CO said that it’s cool for a K-12 teacher to “rip” film clips from his DVD collection to bring into class to teach film or cultural studies, that circumvention is now kosher for all teachers doing the same thing across the country. So, because these rulings are not narrow decisions (like fair use judgments), it seems reasonable that reviews happen triennially and that applicants bear some substantial burden to argue their cases for various exemptions.  The CO’s complete review of the last round of applications is over 400 pages long.  How frequently should the agency engage in that level of detailed analysis and make recommendations that have considerable effect in the market, and which must conform to existing laws beyond the scope of copyright?

And once again, the timing of this complaint is curious because the Register earlier this year recommended that, going forward, all successful petitions not opposed in the next review cycle need not be re-litigated.  This is relevant because the EFF specifically cites the need to re-apply for exemptions every three years as evidence of undue burden, but it ignores the fact that the Copyright Office acknowledges the issue and is making recommendations to mitigate the problem.  So, the big question reprises:  Why is EFF more eager to try to strike down the entire law than it is to work with the Copyright Office to address some of the very flaws the Register agrees exist?

Based on just the complexities I have tried to articulate here—and which only scratch the surface—it seems unlikely the First Amendment complaint will make as much progress as it will make noise. Yes, we want to protect fair use for expression and the ability of researchers to ensure our safety and security while living with our computerized products. But the record indicates that the Copyright Office is in synch with these views.  We’ll see what the courts say.