Category: Copyright

With Friends Like Wyden … Creators Have a Problem

Sen. Wyden Town Hall, Newberg, OR

Anyone who is consistently engaged on copyright issues is used to hearing the rhetoric from the major critics, who say things like We support creators while they advocate policies that will further erode authorial rights.  Whether these parties engage in this kind of chicanery in order to sacrifice artists at the altar of Big Tech, or they do it just because they are petty iconoclasts is subject to a case-by-case consideration.  But when that same I care about you message is delivered by a senator to his constituents, it is acutely disappointing when he returns to the cloister of Washington D.C. and totally screws them over.  

The fact that Senator Ron Wyden was going to do exactly this to Oregon’s creative community is prefaced in at least two town hall meetings captured on videos I have seen.  In one of these clips (which has not been made public), Portland-based photographer Tim Trautmann asks the senator about releasing his one-man hold on the CASE Act.  After assuring the artists, musicians, photographers et al in attendance that he is “very sympathetic” to the need for a small-claim copyright option, Wyden then patronizes his constituents in a rather cloying display in the political art of hokum.  First, by alluding to a mostly-false narrative in which he negotiated the amendments necessary to pass the Music Modernization Act (2018), Wyden then cites this unearned credential to imply that he will likewise help shepherd the CASE Act to passage with a few minor amendments that he personally believes are necessary.

From there, the senator rather predictably aped the tech-industry talking point that “teenagers and grandmothers posting memes could be harmed” by the small-claim copyright process, lapsing into cringy rhetoric, telling the “good people” in the room that he knows they do not want to hurt teenagers and grandmothers.  In a similar video clip captured at Newberg by Trautmann, Wyden does the “grandmothers and teens” spiel along with other familiar, industry talking points, including the fallacious assertion that the small-claim tribunal would provide fresh opportunity for copyright trolls to ply their dark arts. 

I believe the professional, political-operative’s term for Senator Wyden’s response to this group of Oregon voters is known as Absolute Bullshit, which is an official grade above Mostly Bullshit.   The higher rating is earned in this case because, for example, the senator framed his allegedly unique perspectives about the CASE Act “in its present form,” as though the bill were still embryonic and not thoroughly developed by multiple parties over several years.  

Presumably the good people in those rooms know that Senator Wyden can read the bill and at least acknowledge its many safeguards designed to alleviate the very concerns the senator pretends that he alone is now raising.  Not the least of these would be the mandate that the small-claim tribunal is VOLUNTARY.  (On the other hand, given the number of times the senator referred to his notes in the meeting captured in Trautmann’s video, I wonder if he did read the bill or understands how it works.)

So, after blowing all that smoke around various rooms in the state, Senator Wyden returned to D.C. and asked for changes to the CASE Act that would effectively obliterate its whole purpose for existing—a.k.a. poisoned pills.  For instance, his proposal to reduce the damages caps by 95% of their current level is not only too extreme a revision to call a “compromise,” but it shows the senator’s underlying contempt for the bill, for copyright in general, and, by extension, for those constituents he basically blew off in the town hall meetings.  A damages cap as low as $750 for a single claim (Wyden’s proposal) is so low that it barely covers the cost of filing the complaint and is, consequently, no deterrent to the kind of real-world infringements most rights holders have a problem addressing. 

A Small-Claim Option is Good for All Parties

On a phone call with several Oregon creators, another Portland-based commercial photographer, Michael Shay, relayed an anecdote about Trautmann that is exemplary of the conflicts the CASE Act was written to resolve.  After a local restaurant used one of Trautmann’s images without permission on its website for promotional purposes, the photographer requested a very reasonable few hundred dollars for the continued commercial use of the photo.  “When the restaurant did not respond to letters and phone calls from his lawyer,” says Shay, “Trautmann expressed frustration about the situation to friends on social media, and that led to resolving the issue.” 

I know.  We can almost hear the chorus of tech-utopians exalting the use of social media pressure as a form of enlightened, DIY justice.  But as Shay observed, social media “shaming” (i.e. a public fight) is not a very healthy solution for anybody involved—neither the copyright owner nor the infringing user—least of all in a relatively small community like Portland.  On the contrary, civil laws exist in part to keep society from devolving to tribes of bullies; and very few copyright owners want to resort to bullying just so they can be fairly compensated for the use of their works.  “I very reluctantly went to social media to talk about this issue at all,” Trautmann later told me.  “I confided my feelings to one friend on Facebook, who then wrote a scathing review of the restaurant on Yelp!, and that resulted in settlement of the infringement matter.” 

So, as indicated in my last post on this topic, Senator Wyden might want to look beyond his personal biases about copyright and the CASE Act and take a more holistic view of the community he was elected to serve.  A copyright small-claim board is a civilized, voluntary (did I mention voluntary?) solution to a conflict between two members of a community—the copyright owner and the average commercial infringer like that restaurant—not the least consideration being that the restaurant would lose big in a federal case, if Trautmann had to file a lawsuit.  Senator Wyden might want to ask the owner of Washington, D.C.’s Violent Hues productions what it ultimately cost him to post a photo on a website that he “found on the internet,” and whether a small-claim board would have been a much better venue. 

It is a cold reality of politics that an elected official may be able to gauge the extent to which he can piss off some segment of the electorate.  For instance, a Democrat can push environmentalists pretty far on the assumption that (at least in the present climate) that constituency is unlikely to swing to a Republican opponent.  A similar calculus may be a factor for Senator Wyden sizing up much of Oregon’s creative community—an assumption that they are mostly “safe votes” in our current electoral dynamics.  On the other hand, when a representative so blatantly misleads and blithely dismisses a community, as Wyden did in these town halls, he may discover that he is more vulnerable than he thinks.  After all, with friends like him in Congress ….

Video link and still courtesy of Tim Trautmann.

Google v. Oracle Part II: Copyrightability and Contortionism

As noted in Part I, there are a lot of moving parts to this story that cannot be addressed in a single post; but the one thread readers should not lose is the fact that this whole dust up started because Google was the first commercial user since the launch of Java in 1995 to refuse a license agreement.  Undeterred by that legal requirement, Google proceeded use Java code to develop one of the biggest commercial ventures in computing history; and if anyone out there believes they declined to enter into that license agreement in order to foster greater competition and innovation in software, then you have not been paying attention to Google’s globally anti-competitive conduct in the market to date.  But in this post, I want to begin to address some of the legal arguments that have been presented in Google v. Oracle.

In the most basic terms, several of Google’s supporting amici—and therefore the story that seeps into the blogosphere—asserts that the “declaring code” Google copied in the process of developing Android is not properly a subject of copyright (i.e. cannot be protected).  And even if this code is protected, Google claims that its use constituted a fair use.  I shall set the fair use defense aside for a future post and address the challenge to the copyrightability in Oracle’s computer code, which turns on a single argument that what has been called the “declaring code” amounts to a system or function rather than an authored form of expression. 

I personally see two significant and intertwined challenges with regard to following this case.  First, because most of us have little or no foundation for recognizing the amount of “creativity” in computer code, it is a category of works that is highly dependent upon analogy and expert testimony; and second, because Google and most of its supporting amici are known to be anti-copyright ideologues, it is reasonable to ask whether the central argument being made is well-grounded in facts about the code at issue, rather than opinions that (once again) seek to undermine the nature of copyright itself. 

Certainly, we have seen many arguments try and fail to holistically weaken copyright in other cases; and one hint that this game may be afoot in Oracle is the amount of logical contortionism demonstrated by certain amici on behalf of Google.  And I really do mean contortionism because, for example, EFF and PublicKnowledge argued in 2017 that the question of copyrightability in the declaring code was “settled” by a completely different court finding that a system of yoga poses was not copyrightable.  If that sounds like comparing bindis and bytes to the reader who is unfamiliar with copyright law, let me suggest that it may also sound that way to those familiar with copyright doctrine in this particular case.  But now, I have to back up a bit. 

One-hundred years before software was added to the statutory protection of copyright, the Supreme Court articulated a seminal distinction in Baker v. Selden (1879), holding that although Charles Selden’s book describing his new method of bookkeeping was of course copyrightable, the bookkeeping system itself, no matter how novel, was not a subject of copyright.  In addition to its foundational role in defining the idea/expression dichotomy,* Baker also gives us the principle of the merger doctrine, which holds that when there is only one way (or just a few ways) to express something, the expression is not protected because it is said to be “merged” with the idea.  (Google’s defense hinges substantially on merger.  More on that in the next post.)

Jump to 2015, and Yogi Master Choudhury Bikram asserts in litigation with an American yoga studio that his system to promote health by means of twenty-six yoga poses and two breathing exercises, as described in his 1979 book, is protected by copyright.  Once again, the book is clearly a subject of copyright, but Bikram’s selection and arrangement of poses and exercises to bring about a particular result are, like Selden’s system of bookkeeping, not protected by copyright.  Consequently, the 2017 amicus brief filed jointly by EFF and PublicKnowledge contended that Bikram “settles” the question of copyright in the Java code, citing the Ninth Circuit opinion that, “the possibility of attaining a particular end through multiple different methods does not render the uncopyrightable a proper subject of copyright.” 

That statement is true and a perfectly sound response to Bikram’s argument that he could have made different selections among poses and exercises to achieve a desired result; but even if Bikram had not asserted that particular claim of “creativity,” the doctrines established in Baker in 1879 would have been sufficient to deny copyrightability to a system of yoga poses.  So, not only does Bikram fail to “settle” the question of copyrightability in Oracle’s declaring code, but asserting that it did reads as something of a detour around the only question that matters—whether there is authorship in the code, distinct from the function it performs when executed.  And unlike yoga poses, computer code is expressly protected as a “literary work” under U.S. copyright law. 

I will dig into more detail about the nature of the code in question in the next post about this case, along with a look at arguments presented in the briefs filed with SCOTUS in support of Google this week.  But the reason I decided to highlight the Bikram detour in this narrative is that the defenses for Google seem to contain a lot of hyper-extended arguments—legal chakrasana, if you will—that begs the question as to how strong the “non-subject of copyright” argument really is.  For instance, the EFF/PK brief sought to identify an apparent doctrinal split between the Ninth Circuit holding in Bikram and the Federal Circuit holding in Oracle that its code is copyrightable …

“A finding of copyrightability [by the Federal Circuit] based on the fact that ‘the author had multiple ways to express the underlying idea,’ cannot be reconciled with the Ninth Circuit’s holding that ‘the possibility of attaining a particular end through multiple different methods does not render the uncopyrightable a proper subject of copyright.’” (citations omitted).

Again, in the context of a system of yoga poses, it is unremarkable to say the existence of other yoga poses does not make the system any more copyrightable.  EFF/PK tries to turn that holding inside out to mean that the creative expression of Oracle’s code isn’t copyrightable.  EFF filed a brief with the Supreme Court on this case this week (separate from PK) that no longer quotes Bikram, but continues to argue Oracle’s code is not copyrightable because it isn’t creative.  You or I might choose different words to express a concept, but that is more or less the soul of copyrightability – the protection of the author’s specific expressive choices. 

For instance, the Ninth Circuit language in Bikram would never suffice as a reason to deny copyright in non-fiction works like news articles.  Ten journalists developing their own versions of roughly the same story will be working with the same set of facts (we hope), but each will employ what we might describe as “multiple different methods”—arrangement of material, vocabulary, tone, amount of detail, editorial—to “attain a particular end.”  So, copyright in journalism very much does attach principally because each author takes her own approach to communicate similar—if not the same—useful information to the reader.  The same is true for programmers developing software to perform the same or similar functions.

All subjects of copyright (whimsical products of subjectivity that they are) have long been described and debated by analogy; and this is one reason why precedent language can be rather vexing when a case involving one category of works is cited in a case involving a different category—let alone comparing a non-subject like yoga poses to a statutorily defined subject like computer code.  But perhaps all this “filler” has something to do with the business story behind this conflict. 

To recap, hundreds of commercial developers licensed Java before Google set out to make Android—not one of them saying, “Hey, this isn’t copyrightable!”  Google was about to license Java in 2005, but declined to do so because the license required a level of interoperability, which (by all appearances) would have been a barrier to Google’s interest in market dominance—a dominance it now enjoys.  So, it does begin to look just a bit like Google went searching after the fact for a legal theory to justify its decision to simply bypass a creator’s copyright.  Sound familiar?  This is why is it worth asking how much this case is really about the copyrightability of Oracle’s declaring code in Android, rather than a challenge to the copyrightability of computer code in general—or to any protected works for that matter.

Senator Wyden Needs to See the Bigger Picture in the Small-Claim Copyright Bill

In 1990, the Port of Portland received a new container crane—the largest available at the time—built by Hyundai Heavy in Seoul.  When the crane arrived, balanced across the beam of this massive ship, I was on site because I happened to be working for a small, Seattle-based industrial production company hired to make documentary films about the crane’s rigging and installation.  This was my first time shooting film from a helicopter—one of those bubble-canopy Bell choppers like you see in Vietnam or Korean war footage—and a hell of a way to find out whether or not I was afraid of heights.  Happy to report that I did not throw up on Portland’s brand new crane. 

As economically vital as that container crane must be to the City of Portland (and the U.S. in general), I would ask that Oregon’s Senator Wyden consider the economic ripple effect associated with the production work we were doing back then and how our incomes for that labor were predicated on copyrights in the audio-visual works.  Then, I would ask that the senator recognize that in the current market, rampant infringement of a similar company’s creative work dramatically outpaces a small-business owner’s ability to protect the work. 

When a Member of Congress stands alone in opposition against the tide, it is fair to ask whether he is exhibiting leadership or merely being a stubborn outlier wielding power because he can—and because the constituency being rebuffed has been assessed to be of little value at the ballot box.  I say this because Senator Wyden’s solitary hold on the CASE Act, which would establish a small-claim copyright alternative for entrepreneurial creators, is likely the only barrier left to this bill becoming law.  

The Bias of One Individual Should Not Shape Public Policy

Absent a clearly articulated, merit-based argument of opposition against the majority view, a representative’s moral obligation should be to the majority.  So, I would ordinarily assert that Senator Wyden should have to explain in his own words (i.e. not the talking points of the tech industry) what truly vexes him about the prospect of passing the CASE Act.  But so far, the senator has yet to utter any objections that color outside the lines drawn by the tech industry and the hyperventilating copyright skeptics–and this can probably be explained quite simply:  because Ron Wyden fundamentally does not like copyright.   

The senator is, of course, entitled to be an anti-copyright ideologue the same way some of his colleagues in the Senate might be ideologues about foreign policy matters.  But ideologues tend to be generally naïve (i.e. wrong) about how the world actually works and usually stand on shaky ground with respect to history.  For instance, when Senator Wyden reiterates vague and unsupportable predictions that the CASE Act might “chill speech,” he oversimplifies the historic evidence that copyright enforcement and speech have managed to coexist in harmony since the United States was founded.  

Moreover, the senator has a ring-side seat as a witness to the destruction that has been wrought by overemphasis of the internet industry’s self-serving, and inaccurate, framing of speech.  In fact, Wyden’s own privacy bill, the Mind Your Own Business Act, recognizes that the everything-online-is-speech narrative, as promoted by Silicon Valley for the last 20 years, has had disastrous consequences for society so far.  Yet, seemingly unaware of any dichotomy in his thinking, the senator merely echoes the industry’s scare-mongering bullet point that “some kid posting a meme will be fined thousands of dollars if we pass the CASE Act.”

Senator Wyden knows how to read a bill and knows that passing CASE into law does not change the scope or nature of copyright infringement; and he can certainly see that the hypothetical meme-poster is very well protected by a number of safeguards in the bill—not the least of which is that respondents must voluntarily submit to the small-claim alternative.  At the same time, let us not get too hung up on the value of all online “expression” in light of the fact that, at any given moment, there is a better than 50% chance some meme, or whatever, was created by a foreign agent hoping to disrupt our politics. 

It is a reality of procedure that a single senator can stop legislation in its tracks.  And if this is truly an act of leadership in which the senator can present a nuanced and original argument based in his/her own insight, then we have little choice but to admire the courage of that conviction.  But here, Senator Wyden’s opposition to the CASE Act connotes something between raw, unexamined bias and a cynical fealty to a predatory industry that does not deserve congressional coddling.  Neither rationale is grounds for one elected official to stand alone against the volume of consensus that has coalesced around this legislation.  

CASE Supports Middle-Class Entrepreneurs and Best Practices

As a practical matter Senator Wyden’s singular opposition to CASE waves a dismissive hand at his own constituents—and millions of Americans outside Oregon—who rely on copyright in their small-businesses the same way Portland’s coffee bars need a steady supply of beans.  The CASE Act may seem like a small matter in the scheme of things; but for the creative entrepreneur trying to keep her work from being ripped off in a market that innovates theft at a staggering pace, there is nothing small about it.  Protecting copyrights can be the difference between healthcare and no healthcare or, at the very least, having the money to patronize one of Portland’s coffee bars.  

Today, a photo/video production company filming at the Port of Portland would have access to tools we did not have in 1990.  A small HD camera on a drone can get better footage in a fraction of the time, and at lower cost, than anything I shot with a 16mm camera from a helicopter.  But I would note that in such a potentially hazardous location, with big equipment and personnel moving in all directions, everyone should want that drone operator to be licensed and well-covered by insurance.  This is just one example of the type of cost that must be covered by the fees a producer can charge for creative work—fees that are backed up the enforceability of copyrights.  

Alternatively, when copyrights are unenforceable and creative work is consistently devalued, corners are cut.  Safety measures, licensing, releases, and permissions of all kinds tend to disappear from the production of creative works for all but the largest producers.  So, while Senator Wyden may have his own biases against copyright in general, perhaps he will consider the more complex economic implications of enforcement for small-business operators and acknowledge that there is a much bigger picture implicit in the small claim alternative.    

Photo by mandritoiu