Category: Copyright

Mraz Sues Coors – Instructive to Copyright Small-Claim Alternative

When it comes to copyright infringement, the internet—namely social media platforms—has taught even very large commercial entities some very bad habits.  When I read yesterday morning that singer/songwriter Jason Mraz filed suit yesterday against MillerCoors LLC for making infringing use of his mega-hit “I’m Yours” on Instagram, my first thought was “Of course they did,” when it really should have been “What the hell were they thinking?”  

One barely needs to read the complaint to interpolate the facts from this summary sentence on Bloomberg Law:  “The allegedly infringing advertisement, posted [to Instagram] in May, reportedly shows about 13 seconds of Mraz’s performance of ‘I’m Yours’ at the BeachLife Festival in Redondo Beach that same month.”  Then, Bloomberg quotes the complaint stating, “Superimposed over portions of the Infringing Advertisement is a logo for Coors Light stating ‘Presented by Coors Light.’” Holy dope-slaps, Batman, how does a multi-national corporation do something this dumb?  

According to TMZ, a spokesperson for MillerCoors stated, “MillerCoors contracted the rights to the BeachLife Festival and video assets through the event’s promoter, so if they truly feel there has been a violation here, we are not the party they should be suing.”  Without knowing any of the details about that contract, I’m going to guess that somebody didn’t do his homework.  Because ain’t no way Mraz and the roughly forty other artists who played the festival agreed to third parties turning their appearances and music into individual advertisements.  

Even if Mraz separately had grounds for a complaint against the promoter, that would not shield MillerCoors from liability for its own conduct, which the complaint alleges amounts to copyright infringement, trademark infringement, infringement of Mraz’s right of publicity, California’s civil code protecting the right of publicity, and California’s code proscribing deceptive business practices.  I doubt this case will last very long.  This is just sloppy work by someone at the agency or within MillerCoors, and it will be interesting to see if the beermaker even bothers to file a response before settling.  

The CASE Act is a Useful Alternative for Everyone

Because this commercial use involved concert footage—the kind of clip fans upload to social media all the time now—and it was placed on Instagram, the misstep of this multi-national corporation is indicative of just how common these bad habits are among smaller entities and rightsholders.  Imagine the singer/songwriter in this case is not a big star but a professional working artist just becoming popular enough to attract an infringing use of her work, and she finds a similar video of her performance used to promote some start-up business.

Both the artist and the business owner in this example can be counted on to be fairly clueless about intellectual property, which is nothing new; but thanks largely to “internet culture,” the very idea that the business entity should even bother seeking the artist’s permission is anathema to far too many people’s way of thinking.  So, if and when the artist makes any kind of complaint, or requests that the user remove the infringing use, she is as likely to be told that she should be “grateful for the free publicity” as she is to get a satisfactory response.  This brush-off alone can make a person want to sue somebody, and in this instance, the artist’s claim would be a slam dunk.  

But in the interests of both the copyright owner and the user in this example, a small-claim option would be a much better next step than federal court, where the infringer would end up settling rather than spend several thousand dollars to wind up owing damages and fees in excess of $200,000.  While the CASE Act was developed as an alternative for copyright owners who cannot afford federal litigation, it should also not be underestimated as an alternative venue for defendants in cases where the claimant just might go to federal court and where the respondent would almost certainly lose. 

I have opined a few times in other posts that the generalized anti-copyright narrative too often implies that everything that happens online is “cool,” and this winds up getting people into legal trouble that could be easily avoided.  If MillerCoors can screw up like this, it is only natural that less-experienced enterprises with more limited resources will make similar errors.  Better not to infringe in the first place, but if one does, the small-claim option provided by the CASE Act would be an attractive option for commercial users who naïvely make improper uses of works.  

What opponents of the CASE Act would have you believe is a twist on this narrative:  one that says, “If MillerCoors can make this kind of mistake, then average, non-commercial users are really in trouble when the small-claim option opens a floodgate of complaints against you, me, our kids, and grandma.”  I and others have explained about fourteen ways to Sunday why the small-claim option why this is fearmongering nonsense promoted by organizations that hate copyright enforcement so much, they will not even admit to some of the advantages CASE offers to respondents and abusers of DMCA takedown provisions.

It’s funny that the object lesson that triggered this post happens to involve Jason Mraz because, as far as I am aware, he is about as chill as it gets with regard to fans sharing his work in various ways on social media etc., but that does not diminish his right or rationale for restricting uses he feels are inappropriate, as was the case with the Coors Light spot.*  Mraz doesn’t need a small-claim alternative any more than MillerCoors does, but that the smaller artist just starting out does need this solution.  And just maybe, so does the start-up business who unwisely infringes her work.  

Photo by cppzone

*NOTE: Edited from original statement mentioning Mraz’s support of CASE Act, which may be true, but I was not able to verify.

Promoting Progress in the Digital Age

progress

Over the past three years since the internet industry first had to respond to the so-called “Techlash,” various comments on the theme that “the internet didn’t turn out like we expected” have generally shared one common flaw—a failure to acknowledge that the expectation itself was folly.  Whether parties are debating the amount of moderation that should or should not be done by a platform like Facebook; or whether breaking up the internet giants to foster competition would ameliorate the negative effects; or whether curtailing liability shields and treating platforms like publishers would do the trick, the big lightbulb that has not dimmed nearly enough is the original assumption that more people expressing, sharing, posting more stuff could only benefit the world.  All evidence points to the contrary.

When I started this blog in the Summer of 2012, I was partly motivated to advocate artists’ rights (copyrights) against the agenda of Silicon Valley, but I was also skeptical that the underlying assumption justifying the abrogation of those rights—that the information age was fulfilling its promise—was true in any meaningful way.  I asked at the outset whether the internet, as it was shaped since the 90s, was in fact empowering our better angels and ushering in a second Enlightenment grounded in science; or whether it was more effectively aggravating our worst instincts and undermining the pillars of republican democracy.  

In this context, I use the word science in its broadest sense to encompass the principle of a politics rooted in knowledge and reason, and this expansive reading is roughly how we have interpreted Madison and Pinckney’s use of the word science in writing the constitutional clause that gave Congress the authority to adopt copyright law.  This is why the tech-utopian assumption that the internet would bring about the aforementioned second Enlightenment is directly tied to the anti-copyright agenda. 

What authors of works see as the protection of their rights, the digital-age copyright critics characterized as barriers to access, rent-seeking mechanisms, and corporate gatekeeping, all of which results in what they call “artificial scarcity” of expressive and informative works.  Hence the critic’s logic that “free” digital distribution inherently abridges—if it does not simply obliterate—the original purpose of adopting copyright as an incentive to produce and distribute works of science.   

Bizarrely, this utopian narrative persists despite the fact that the United States has now arrived at an existential crossroads.  Mired in what some observers have gravely termed a “cold civil war,” we are officially a nation divided and sub-divided into separate realities; and relatedly, our so-called “age of information” is witnessing an unprecedented volume of brain-drain at the highest levels of government and public service.  While the owners of the major platforms double down on their idealistic talking points, the real world increasingly resembles the worst corners of cyberspace, complete with mob-like assaults on expertise, professionalism, and patriotism for the sake of what can only be described as the cult of Trump.  

In the space of two years, the Republican Party has abandoned its own core principles, sloughing off actual conservatives, and even going so far as to faithlessly attack the characters of career service professionals who have risked their lives for American interests.  And all because they are afraid of being the targets of a presidential tweet.  “We shall nobly save, or meanly lose, the last best hope of earth,” Lincoln wrote to Congress in 1862.  So, is it really conceivable that a century and a half since the Civil War, the party that used to call itself “the party of Lincoln” will allow the Republic to falter because an illiterate mean-girl wearing a tinfoil crown has a Twitter account?  Talk about going out with a whimper.

It is presently unavoidable to blame the GOP for this particular moment of history-altering fecklessness but also worth remembering that thanks in no small part to social media, my friends on the left helped loosen the bolts on many of the same girders this administration is now dismantling.  It may be shocking to watch Members of Congress disrespect public servants like Lt. Col. Vindman, Dr. Hill, or Ambassador Tayor, but it was not very long ago (2014) that, for example, Naval War College professor Tom Nichols, wrote for the decidedly-conservative Federalist, “I fear we are witnessing the ‘death of expertise’: a Google-fueled, Wikipedia-based, blog-sodden collapse of any division between professionals and laymen, students and teachers, knowers and wonderers – in other words, between those of any achievement in an area and those with none at all.”

To a great extent, Nichols seemed to be addressing a progressive-leaning constituency of netizens who, just like many latent Trump supporters, dismissed authority, expertise, and experience as “elitist.”  And they still do.  So let’s not pretend the GOP is alone in amplifying and weaponizing internet conspiracy theories like the “deep state.”  Mainstream media, the intelligence community, the military—even the U.S. Copyright Office!—have all been generically maligned as “the government” by disparate constituencies—as if the government did not already comprise thousands of people just like Vindman, Hill, and Taylor. 

By contrast, all that ebullient swooning a few years ago over data-dumpers like Assange, spraying their cans of sunlight, was naïvely perceived as leaking truth to power.  But what that illusion of access really achieved was an erosion of faith in the same professionals now having their patriotism questioned for political gain.  Likewise, bloviators like Reps. Jordan and Nunes may be the most prominent figures calling the mainstream media “puppets” and “enemies,” but let’s be real: the word mainstream as a pejorative has been used across the political spectrum to justify dismissing any career journalist who reports something that some constituency doesn’t want to hear. 

Suffice to say, the battlefield was well-softened for armies of disinformation trolls to start what former State Department official Richard Stengel calls a full-scale information war we are not winning:  

“Governments, nonstate actors and terrorists are creating their own narratives that have nothing to do with reality,” Stengel writes. “These false narratives undermine our democracy and the ability of free people to make intelligent choices. The disinformationists are aided by the big-platform companies who benefit as much from the sharing of the false as from the true. The bad guys use all the same behavioral and information tools supplied by Facebook, Google and Twitter. Just as Nike buys your information to sell you sneakers, the Russians bought your information to persuade you that America is a mess.”

Having dutifully fulfilled the trolls’ prophecy—because America is certainly a mess now—it is a pretty harsh referendum on the information age to watch the GOP respond to clear evidence that the President of the United States abused his office, asserting a combination of internet conspiracy theory and the eccentric proposal that Trump is too incompetent to break the law (see Sen. Graham comments).  That’s one hell of a rationale to pitch to the American people about their president, but it is astoundingly effective thanks to the “democratization of information.” 

So, no, the second Enlightenment did not happen. Science is now a choose-your-own-adventure game you can play on your mobile device, and the “illusion of agency”* provided by social media is being moderated by some over-caffeinated, professional rat-fucker in St. Petersburg.  All that being the case, perhaps the tech-industry activists who still insist that copyright is a gremlin sabotaging the promise of the internet, might find some better targets for their censure than the authors and artists of the world.

*All credit to Neil Turkewitz for this expression.

Unicorn illustration by julos.

YouTube Adpocalypse is No Surprise

YouTubers call it the adpocalypse.  It’s a word is used to describe the steady erosion of YouTube’s support for small and independent creators by demoting or demonetizing their channels in favor of more traditional, mainstream material.  Julia Alexander at the The Verge wrote in April of this year …

“Between 2011 and 2015, YouTube was a haven for comedians, filmmakers, writers, and performers who were able to make the work they wanted and earn money in the process…. In 2016, personalities like Philip DeFranco, comedians like Jesse Ridgway, and dozens of other popular creators started noticing that their videos were being demonetized, a term popularized by the community to indicate when something had triggered YouTube’s system to remove advertisements from a video, depriving them of revenue.”

While not directly related to copyright, I would include the adpocalypse in a chapter about the broader copyright debate because one of the underlying premises of the “copyright is obsolete” narrative is that the new opportunities created by the internet could replace traditional licensing regimes with legacy “gatekeepers.”  With an evangelical zeal, some of the loudest copyright critics sermonized that the internet was replete with untapped sources of revenue for creators, and YouTube was their Zion—a place where creators could slough off tired notions of ownership, share their work with the world, and earn a living from Google’s advertising machine.  

The fact that people were making a business out of being YouTubers—ranging from profitable side-lines to multimillion-dollar payouts for a handful of stars—was sufficient anecdotal evidence to bolster the talking point that concepts like copyright were anachronistic and regressive.  The lecture at old creators was a general theme that they should stop “whining” about lost sales, piracy, devaluation and embrace the unprecedented prospects before them.  

This theme was even reiterated in Steven Johnson’s too-ebullient 2015 New York Times Magazine Feature, The Creative Apocalypse That Wasn’t.  More sober than most, Johnson still cited the YouTube opportunity as evidence that the post-Napster market is rosy for creators, despite what they may be saying.  In my long rebuttal to that article, I stated that Johnson “… can only see the short-term empowerment of some creators via these new technologies, but not the long-term, predatory nature of a brand new group of extraordinarily powerful, corporate masters.”  

That was a theme my fellow luddites kept reiterating—that YouTube will “empower” new creators until it is no longer in its business interest to do so, at which point the company will change the rules without warning or transparency.  That was the underlying absurdity of the entire line of argument against creators’ rights—the illusion that a company like YouTube was liberating new creators, even making them feel a sense of ownership in the platform itself and that this apparent symbiosis would last indefinitely.  “The golden age of YouTube — the YouTube of a million different creators all making enough money to support themselves by creating videos about doing what they love — is over,” writes Alexander.

Perhaps.  But I wouldn’t think of it as the party is over so much as a party to which most YouTubers were never going to be invited in the first place.  The promise of millions becoming YouTube entrepreneurs was never attainable, or at least sustainable.  “96.5 percent of all of those trying to become YouTubers won’t make enough money off of advertising to crack the U.S. poverty line,” stated a 2018 article at Fortune.com. YouTube was always a casino, and Google is the House.  Yet, this did not stop the pundits and tech-utopians from insisting that it is restraints like copyright the “stifle” the potential growth of YouTube—or even more naively, imaginary platforms that might one day compete with the Google-owned giant. 

More than a few of my fellow luddites have mentioned that YouTube’s monetization in not about creators, and never has been.  As composer Kerry Muzzy describes in a sit-down interview with Neil Turkewitz, “So far I have identified 97 million views of videos with my music in them, representing 303 million minutes of watch time. Those 97 million views happened before Content ID located my music in them and under YouTube’s policies, I can’t monetize them retroactively — so YouTube and the uploader made a small fortune in ad sales on those videos, but I got nothing.”

This post is not a gloat.  I legitimately empathize with most creative people, and YouTubers are no exception; but one thing the “old” creator can tell the “new” is that very few favorable tides last a lifetime, which is one reason owning copyrights in successful works can be so critical for so many creators.  Like the aging jazz musician whose royalties in a pre-1972 sound recording just might be her medical bills for the year.  

With that in mind, the comment I found most striking in Alexander’s article was not really about revenue so much as it was how YouTube’s opaque policies for demoting or demonetizing was making YouTubers feel.  “These perceived, secretive changes instilled creators with a distrust of the platform. It also led to questions about their own self-worth and whether the energy they were spending on creating and editing videos — sometimes north of 80 hours a week — was worth it.”

Self-worth connected to the labor of creative expression and the value placed on that labor.  Sound familiar?  To the cynics who say that copyright is merely a mechanism of commerce, Alexander’s observation above may be one of the most on-point rebuttals I have read to date.  And perhaps the new creators (if not the pundits) might begin to understand how it feels to have work uploaded and monetized by a giant tech platform without permission and to have the value of that work diminished as a result.  

When YouTube was bought by Google in 2007, the platform had grown to scale on a very large volume of piracy.  In 2012, when Viacom v. YouTube was reviewed at the Second Circuit Court of Appeals, 60% of the material on the platform was copyrighted work, of which 10% was licensed.  In 2017, Canadian singer/songwriter Miranda Mulholland delivered a speech reporting the 82% of YouTube users access the platform for music, a large volume of which continued to be uploaded without license.  So, the “old” creators know how the “new” creators feel, especially because YouTube’s capacity to monetize the “new” was built on the backs of the “old” without permission or compensation.

Yes, money is a very big piece of the puzzle for anyone—we all have to eat—but as Alexander describes, having one’s work devalued is personal and ontological in any context.  This is precisely why, throughout copyright’s history, and despite many disputes over its mechanisms, the foundation of its existence remains a matter of first principle—that what one creates is one’s property.  And the way the YouTubers are apparently being made to feel about the adpocalypse suggests that this principle is no more obsolete in the digital age than in any previous era.