Category: Copyright

Dangerous Little Knowledge

Not surprisingly, friends contact me from time to time with copyright-related questions. I’m careful not to give definitive answers to most of these, but I can usually point them in the right direction toward a solution.  Very recently, a dear friend (let’s call her Sarah) asked my advice regarding an email she received from a photographer who demanded removal of an image from her blog as well as a substantial fee for damages.  Sarah is college educated, a Gen-Xer, an artist herself, wicked smart, talented, and very respectful of people in general, let alone other creators.  I would characterize her as among the last people who would knowingly infringe a fellow artist’s copyrights.

Sarah considers her blog educational and non-commercial, and she credited the photographer. These factors led her to assume her posting the photo was a “fair use,”  and the mistakes she made are consistent with the kind of questions and assumptions I hear all time.  Real copyright experts may have another view, but it seems to me that the non-commercial thing is among the most common mistakes made when it comes to assuming a use is fair. In reality, commercial or non-commercial use of a work is is not necessarily dispositive (as the lawyers say) when determining whether or not a use would be judged fair. Setting aside the question of the photographer’s award demand — I can’t comment on whether or not it was in line with common practices among visual artists —  I was sorry to tell Sarah that her use was almost certainly an infringement. It only took her doing a bit of research to realize that fair use is a very specific component of copyright law that requires a federal court to weigh four factors in order to reach a conclusion.

What I find interesting, though, is that while I have been associated with originators and users of creative media my entire life, until Web 2.0 came along, I don’t remember people making decisions to use works based solely on what they thought they understood about copyright.  Put another way, I am not surprised Sarah misunderstood fair use so much as I am curious as to how the misinformation got into her head in the first place to the extent that she honestly believed she was on solid ground.  Because I bet her confusion is quite common.  Moreover, I suspect that so much misunderstanding about copyright is aggravated by both the design of the Web and even by the din of the copyright debates in the blogosphere. Not only does an interface like Google image search make potential infringement just a little too easy, but it also isn’t helpful to have a constant drumbeat of headlines written by entities with an interest in weakening copyright.

Lingo is catchy. We hear a unique term, assume we know what it means, then misapply it and spread the gospel. I used to see this a lot in video post production whenever a producer got hold of a new expression he thought he understood. Similarly, I suspect there’s so much chatter about copyright issues swarming around the Internet today, that terms like fair use seep into public consciousness; and then intelligent, thoughtful people like Sarah make perfectly reasonable, yet entirely false, assumptions about what the term means or how the principle is actually applied.  A clear case of a little knowledge being a dangerous thing.

And of course, it’s not just copyright; it’s anything. The wealth of “content” out there doesn’t always make us more informed, but it can make us think we’re informed, sometimes just enough to get us into trouble.  Because it’s one thing to have an opinion about a subject like copyright, but another thing to act on the assumption that you can be your own attorney, which is no more advisable than, say, using WebMD to diagnose the presentation of some new symptom.

Let me pause and write in the imperative for a moment by way of what public service I may offer:

If you have to imagine a fair use argument, then a case for infringement by the rights holder may exist.  Unless you have really researched fair use and you are legally and/or  financially prepared to defend your use, don’t assume you know what you’re doing. Odds are you don’t. There are no bright line rules when judging fair use.  Plus, if you’re just writing a blog and need an image, there are probably better and clearly legal options like Getty Images free embed service. Having said that, there’s nothing wrong with asking the rights holder for permission. He just might say yes.

Of course, the argument from the anti-copyright crowd might be that Sarah’s experience makes a good reason to “expand” fair use in the digital age.  For instance, readers may be generally aware of the Internet industry’s proposal to  “export” U.S. fair use principles through fair trade agreements despite the fact that our trading partners have radically different legal systems, and none has our First Amendment. I bring this up to illustrate the point that I believe this industry continues to trade on the populist tactic of oversimplifying legal frameworks in order to advance its own agenda.

And this goes back to what I meant when I said that the design of the web as we know it adds to the confusion of general users as to what’s fair and what’s infringing.  After all, the image is right there on Google image search.  Why not right click, copy, and paste into a blog, etc.? Yes, that’s certainly a paradigm Google et al want to promote, but let me cut to the chase here:  if you’re an individual with mere mortal resources rather than billions of dollars and a phalanx of attorneys, taking the “infringe now, apologize and maybe pay later” approach of Silicon Valley corporations is probably a bad strategy.

Meanwhile certain experts may convince users that they’re on solid ground.  For instance, fair use scholar Peter Jaszi, in his testimony before Congress in January 2014, stated the following:

“Fair use, one might say, is like a muscle – it will grow in strength if it is exercised, and atrophy if it is not. But, by the same token, fair use is hardly unusual or exotic today. Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not.”

I don’t presume to criticize Jaszi’s scholarship; I’m not remotely qualified to do so. But to the ears of fellow laymen, statements like this can be interpreted as permission to push the boundaries of fair use, which may be particularly hazardous if one has not at least researched the basic principles in the first place. High-level theory, debate, testimony, and discussion in the halls of academia do not necessarily provide an accurate picture of the law as it is currently applied.

Add to all that the massive volume of un-scholarly blogs, editorials, and PR messages aimed at weakening one facet of copyright or another, and confusion is likely to be the rule rather than the exception.  Each individual should do the research and decide for herself which among the many proposals on copyright seem thoughtful and innovative and which are serving vested interests. In the meantime, confusion leads to infringement claims, which can lead to damages, which pisses people off who otherwise respect copyrights. And in this sense, all the Sarahs out there become a bit like cannon fodder in a larger battle being waged by billion-dollar corporations.

Periscope Piracy and the Tao of Tech Writers

Last December, a few glasses of Rioja and I wrote a pretty grumpy rebuttal to Washington Post tech writer Caitlin Dewey, accusing her of cheerleading for media piracy.  A few respondents, including Dewey herself, said that I was unfair, that her article about The Pirate Bay was merely reporting facts without editorial.  Of course, with certain styles of communication, it can be very difficult to tell the difference between dishonesty in intention and ignorance of how one sounds.  Is the author choosing her words carefully in order to engage in a zen-like OpEd, in which she advocates an agenda without clearly declaring so?  Or is the author unaware that her words have connotation and tone that imply a point of view she doesn’t really have?

Here’s the sound of straight reportage by Rhiannon Williams for The Telegaph:

“Game of Thrones is the most illegally-downloaded TV programme internationally, accounting for a quarter of all pirated downloads from 100 torrent sites. The programme was downloaded over 1.4 million times between January and February this year – nearly 50 per cent more than its nearest rival The Walking Dead.”

And here’s a work of unequivocal editorial by Grace Dent for The Independent.

“Fans wanted to see all-new Game of Thrones right then, right now. The fact that this was plain theft, or that it might offend lots of their beloved actors, producers and TV bigwigs made no difference. Morals? Ethics? Who are you, the Dalai Llama? It was the weekend, time for some “me time”, and Game of Thrones fans – with Britain topping the list for thievery – wanted to shove all four episodes instantly into their greedy snaffling eye-holes.”

And here’s Caitlin Dewey writing about the new phenomenon of using Periscope to live stream an episode of GoT:

“…tens of thousands of people pirate that show every day — but the mere possibility of more people live-streaming has HBO running scared. The company promptly declared Periscoping “mass copyright infringement,” despite the utter lack of any audience approaching “mass.” And yesterday, the company sent a series of takedown notices to Periscope over GoT. Which is extra-peculiar, since HBO usually takes a pretty chill stance toward “Game of Thrones” piracy.

This, however, is piracy of a totally different breed. There are no torrents, there are no files, there are no thumbdrives or DVDs. That makes Periscope a bit of a challenge — not terribly dissimilar from the era when VCRs threatened TV.”

It is admittedly a little hard to tell if Dewey is only reporting or also commenting here.  Is she aware of her provocative choice of words, or is she just being careless?  For instance, HBO does not have a “chill stance” toward GoT piracy; the company, like any other rights holder, has a strategic stance, which wise or not, is entirely at their discretion.  Thus, there is nothing peculiar, from either a strategic or legal perspective, about making distinctions between one form of piracy and another. So, by suggesting that all piracy of GoT ought to be viewed equally in HBO’s eyes, Dewey is expressing an opinion, and a very unconsidered one to boot.

In fact, the lack of recording media to which Dewey alludes is just one reason why Periscope is very much dissimilar to the Betamax case, which is what she means when she refers (and is also editorializing) to “the era when VCRs threatened TV.”  She’s correct that a DMCA takedown request is meaningless in a situation where no data is stored that can be “taken down,” but her general thesis (if there is one at all) appears to be that Periscope represents a potential form of mass piracy that lurks in muddy legal waters with regard to copyright.  And I doubt this is the case because the use of Periscope in this manner rather clearly infringes on the right of public performance — an illegal broadcast — which is territory fairly well covered by copyright law.

For readers who haven’t heard, Periscope is a live streaming app owned by Twitter that enables just about anyone with a smart phone to live stream whatever is in front of the lens.  So, what happened with Game of Thrones was that some users pointed their cameras at their TV’s  during the broadcast of a recent episode, and a whole bunch of people watched the show via the app on their handheld screens.  Yes, it’s a pretty lame way to view a multi-million-dollar, high-production-value TV show, and Dewey says as much at the end of her article.  But neither she nor I are copyright attorneys, so we’re the kind of writers who should try to be careful about making mashups of caselaw, particularly those that are entirely unrelated to the story at hand.

For instance, Dewey’s two comparisons to the VCR are meaningless distractions in an article about  a technology like Periscope. The right to time-shift by recording broadcasts for later viewing (i.e. the decision in the Betamax case) involves privately stored media that has both legal and functional limits — limits that stop the program recorder from infringing on the right of public performance.  For instance, you may record Game of Thrones on your VCR, DVR, or even some other medium for viewing alone or with friends and family later, but you may not exhibit that recording in, for example, a public theater or coffee house, either for free or for money, and you certainly may not broadcast it.

The right to record for the purpose of time-shifting bears no resemblance to a technology that enables live broadcast to hundreds or thousands or potentially millions of viewers.  The functional differences are observable by common sense and don’t require any knowledge of copyright law.  That said, my colleague Terry Hart, who does know something about copyright law, explains, “The drafters of the 1976 Copyright Act clearly anticipated that new communications technologies would allow the exploitation of works without any copies changing hands. They created a new right of public display to apply to static works like books and images. And they drafted the right of public performance to include transmission and communication ‘by means of any device or process.'” Citing the 1965 Supplementary Register’s Report on the General Revision of U.S. Copyright Law, Hart also shares this:  “… in certain areas at least, ‘exhibition’ may take over from ‘reproduction’ of ‘copies’ as the means of presenting authors’ works to the public, and we are now convinced that a basic right of public exhibition [later replaced with the word display] should be expressly recognized in the statute.”  So, not only is copyright likely well-armed for a technology like Periscope, but it’s been anticipating the need for at least half a century.

Dewey also grazes the subject of transformativeness with regard to using Periscope; and this might raise some interesting questions. If I live stream a TV show, or even a live performance, while making commentary along the way, or if I turn the whole thing into a new work of performance art, would the use be transformative?  Probably. But that does not mean every use in this manner would be a fair use when judged according to the four factors applicable in such cases.  Every use would have to be judged individually; so, just streaming a football game with your own commentary, for instance, would probably fail with regard to assessing the amount of original work used and the potential economic harm to the original.

More broadly with regard to Dewey’s style of commenting on these matters is that she sounds to me like someone sponsoring a general point of view predicated on the idea that when technology makes a particular process or behavior possible, the relevant legal framework must be dismantled in order to “make way for progress.”  Maybe that’s not her view, but I do think articles written in her style, and bearing an imprimatur like The Washington Post, feed this general attitude among readers.  And whether we’re talking about Periscope or any other innovation, this perspective forgets the purpose of legal frameworks in the first place. After all,  “Progress” has been the generic excuse of every vested interest that ever wanted to get away with doing harm in the pursuit of personal fortune. “Progress” has been the argument for pollution and poor working conditions, too; and that’s why we create legal frameworks that say, “Bullshit, you’ll have to figure out a way to make money without dumping sludge in the river.”  At least we try to do this.

So, if Caitlin Dewey’s point is that copyright law is indeed unclear with regard to an application like Periscope, then is she presenting her story by way of identifying a legal loophole in need of closing?  I doubt it.  As with her article about The Pirate Bay “creating the Internet,” as we know it, I’m at least confused as to what point she’s making at all about copyright, piracy, or technology.  Because in the absence of a clearly stated opinion, one looks to reporters for straight facts, and that doesn’t quite seem to be her bag either.   After all, the article is titled,  The future of online piracy is easy, free and already in your pocket.  In my experience, that headline is what we call advertising.

So, what’s a copyright maximalist anyway?

I think it was just a matter of hours after my first article appeared criticizing piracy and the anti-SOPA campaign that I was called a “copyright maximalist.”  I had never heard the term, but suddenly and without any induction process, I was anticipating membership in this secret society. It’s been about three years now, and despite keeping daily vigil by the mailbox, no decoder ring has yet been delivered. I am now suspicious that the American League of Copyright Maximalists may be a myth that originated somewhere in cyberspace.

No, copyright maximalism is not associated with an organization but instead describes a point of view that is supposedly pervasive enough to warrant the chronic and casual use of the term by pundits like Mike Masnick at Techdirt.  Exactly what defines a maximalist, however, is unclear.  In the artistic sense, of course, maximalism is simply the opposite of minimalism.  John Cage is minimalist, Wagner is maximalist.  But in a political or ideological context, a maximalist is an extremist, like a religious extremist, who is so convinced of his own righteousness that he would use radical, draconian, or even violent means to enforce his view on the world.  In this sense, there may be copyright maximalists out there, but if extreme agendas are the identifying quality, I can’t say I’ve met any of these creatures yet.  Yes, we’ve seen some maximalist theater related to copyright, like Jack Valenti’s now dogeared quote about the VCR, and there’s a reason that old anecdote keeps getting recycled — because in the real world of policy-influencing debate, one would be hard pressed to find copyright supporters proposing terribly extreme views on the subject.

Take the recent ruling in the “Blurred Lines” case.  I recommend sources other than this blog for legal analysis, but all of the experts I know, either on copyright or music or both, generally view that outcome as flawed.  Without getting too granular about (and frankly screwing up) the particulars in the case, the general idea I get from all my copyright and music colleagues is that the ruling errs due to a failure to distinguish between similarity and actual infringement on the elements of the original work that are protected by copyrights.  Again, if you want specifics, I suggest this post on IPBreakdown.com by Rick Sanders, but the point I want to make here is that my fellow “maximalists” actually would advocate a far more narrow read of copyright law with regard to “Blurred Lines,” and this is consistent with the views I have encountered over the past few years. Meanwhile, as the anti-copyright blogosphere goes berserk about this case, forecasting slippery slopes and a further broadening of powers granted to rights holders, one should ask who really has the radical, or maximalist, agenda here?

Of course, it’s always easy to label someone an extremist, if you move the bar for moderate in the opposite and extreme direction. And with regard to copyright, this is what seems to have happened correspondent with the evolution of the Internet.  It is right that we should revisit the legal framework of copyright in the context of these technologies, but does that mean the only moderate and rational agenda must exclusively limit copyright across the board? Are all other views maximalist?  Is it not obvious that digital technology creates both new threats and new opportunities and that any sensible legal framework should remedy the former while nurturing the latter?  Or is that the raving proposal of an extremist?

On the other hand, nearly everything in our politics is black and white now, all written in the vernacular of extremes and organized into tidy, associative categories. In fact, I was visiting my best friend over this past weekend, and he very understandably assumed that I would confirm his assumption that the copyright community I know would see the “Blurred Lines” decision as a “win for our side.”  He was surprised when I told him how many copyright supporters disagree with the ruling; but it really shouldn’t be surprising because people immersed in the complexities of any system rarely have blunt and unilateral views. It’s invariably more nuanced.

Similarly, at a dinner a few weeks ago, I found myself talking to a couple of political conservatives, and one of them was actually surprised to learn that we had the same point of view one particular issue.  It’s unfortunate that this should be so shocking, and it suggests to me anyway the degree to which political divisiveness is manufactured and fed by all media and why it appears only to be getting worse in the digital age.  There is always opportunity for a would-be ringmaster in the circus of divisiveness, and social media are like clown cars that supply an endless stream of validation for our assumptions.

So, all that said, I really have no idea what a copyright maximalist is other than a careless pejorative to describe anyone who openly supports copyright.  If I am a maximalist, then the copyright holy war is doomed because I am not nearly versed enough in the scripture to propose any radical interpretations of it. Surely none that anyone would listen to. I don’t know.  Maybe there’s another way to talk about these things.