Category: Copyright

Milton Never Said a Damn Thing About the Internet

I’ve been traveling and am, therefore, late to mention that the hotly-contested EU Copyright Directive passed last week. Not surprisingly, the usual critics have spared little hyperbole referring to the new legislation as the “end of the open internet” and a “disastrous decision.” Meanwhile, many of the copyright proponents I know view the directive as having had the teeth negotiated out of it while Chris Castle has opined that, for instance, YouTube will actually comply with the Directive shortly before Hell freezes over … 

One goal of the Directive was to have very large platforms, like YouTube, pay license fees to the copyright owners whose works contribute substantially to their revenue models. Thus, Article 13 (now 17) requires these large sites to develop technical measures to prevent and mitigate infringing uses, and this has been interpreted by many to mean that these platforms will implement filtering algorithms to identify protected works at the moment when a user initially uploads a file.*

For copyright owners, the proposal represents an important reversal of the current paradigm in which their works are chronically used without license, and they try to respond to every infringing use, one-by-one (a.k.a. the whack-a-mole problem), which is virtually impossible for a small, independent rightsholder. For the critics of the Directive, the assumed filtering at the point of user upload has been characterized as censorship because this would inevitably stifle all manner of legal uses before they are even published. One way or another, it should to be obvious why the status quo has been beneficial to YouTube and why the company used its platform to promote the censorship narrative against the legislation. 

In that regard I tend to agree with friends and colleagues who view passage of the Copyright Directive as at least a symbolic win for the democratic process itself. Certainly it is a refreshing change that the European Parliament was not bullied by Silicon Valley and was able to cut through a lot of the standard fear-mongering noise that was so effective against the SOPA/PIPA bills in the United States in 2012. Perhaps screaming #SaveYourInternet! is an exaggeration that has finally reached its limit.

But because I think the manner in which policy is debated is actually rather important, that brings us to the title of this post and the fact that it is apparently necessary to clarify that the 17th-century, English poet John Milton never said or wrote a bloody word about the internet. That may seem obvious to most, but not so much to history professor and novelist Ada Palmer, writing for the venerable Boing Boing.  In her post of March 24, she alleged that Article 13 of the EU Directive is comparable to European censorship of books in its ancient past.  She begins …

The EU Copyright Directive rekindles the oldest fight in the history of free speech debates, first waged by John Milton in 1644.  Then, like now, policy-makers were considering a radical change in censorship law, a switch from censoring material after it was published to requiring a censor’s permission to publish in the first place.

Nobody with the words professor and history next to her name should be allowed to write anything that misleading without rebuttal. And not wanting to bury the lede here, the most rudimentary response to articles like Palmer’s is that we cannot responsibly compare any proposal to require licensing of works by a for-profit corporation to a state’s authority to allow or disallow publication of works in the first place. There is simply no ideological or practical relationship between those two paradigms, let alone any relationship that spans from Milton’s role in the early phases of the English Civil War of the 1640s to the need to address various effects of internet companies in the present.

I’ll spare readers an attempt at historic summary, but England’s narrative vis-a-vis publishing, censorship, religion, and politics was—especially from the time Henry VIII broke with Rome—a schematic drawn by a psychopath. To give you some idea of what I mean, the fundamental language of the printing laws, beginning no later than 1557, hardly changed from iteration to iteration while the religious, social, and political postures of the state vacillated wildly for nearly 200 years.  

Hence, the 1643 proposal to end “great late abuses and frequent disorders in printing many false, forged, scandalous, seditious, libelous, and unlicensed papers, pamphlets, and books to the great defamation of religion and government” was not new language, but it had very different implications in Cromwell’s Parliament than it did under each of the precedent reigns of Mary I, Elizabeth I, James I, and Charles I before he was beheaded in 1649. 

So, Palmer is simply incorrect to call Parliament’s Printing Act proposal of 1643 a “radical change in censorship law.” To the contrary, it was a continuation of the same censorship laws being adopted under new management; and this was central to Milton’s complaint when he published his treatise Aeropagitica in 1644.  As both a literal and literary soldier for the cause of the Commonwealth, Milton saw the renewal of state publishing licenses as a needless reiteration of the royal prerogative to censor books (i.e. anathema to the anti-royalist cause itself). Notably, it was John Locke, father of the labor theory grounding one pillar of intellectual property, who inveighed against yet another renewal of almost the same law in 1694.

While it is true that Milton’s Aeropagitica is widely recognized as one of the most beautifully articulated defenses of free speech in our political heritage, it must remain in a context that is a very great distance from our modern conception of speech. For instance, Milton advocated allowing heterodox books et al to be published so that virtuous men would recognize the difference between good and evil; and while this is solid Puritan reasoning, it is not the underpinning of speech rights today—to say nothing of how far removed, say, “Paradise Lost” is from the average YouTube video.

Palmer makes a mistake common among academic critics when she draws straight lines between ancient Europe (usually England) and modern copyright. In fact, these lines are not only serpentine but highly fragmented. It would take a very long post to unpack all the moving parts, but just as Milton’s Aeropagitica should be seen as one ingredient in a philosophical soup that is many years away from tasting like the Bill of Rights, that’s more or less how we must view the practices of the English book publishers (the Stationers Company) and their relationship to the volatile English state between roughly 1557 and 1774.  

Simply put, only the state had the authority to grant (or not) permission to publish a work, while the Stationers’ monopoly on publishing was akin to the monopoly every other London guild—there were more than a hundred—enjoyed over its trade.  While there was intermittent correspondence between the publishing monopoly and state censorship, that narrative is a crazy quilt of inconsistency and has almost nothing to do with modern copyright law, which vests ownership in the expressions of individuals.

Yet, by invoking Milton, and even sprinkling the word Inquisition throughout her article, Palmer would have readers believe there is a through-line in the narrative—a kinship between copyright enforcement among private entities in the 21st century and government censorship of publishing in the 17th. There is not. And frankly, I am not sure which is a greater threat to rational public discourse—the hashtag that distills a complex issue into a lame bullet point, or the erudite article that sounds reasonable but is fatally inaccurate.  For sure, the democratization of the internet has given both more room to roam than either deserves, which does beg the question as to what this fight is really about.

* This is not mandated by the new statute and may in fact be how the platforms respond, but that’s a topic for a different post.

Courts Being Led Down Rabbit Hole in Photograph Copyright Case

Oral arguments were presented this week at the Fourth Circuit Court of Appeals in the case of Brammer v. Violent Hues Productions, Ltd.  I first wrote about this story in June of 2018 after a district court in Virginia concurred with an incomprehensible fair use defense—one with implications that threaten the interests of copyright owners in every category.  To quote the summary I used in my June post: 

At issue is a time-lapse photograph of Washington D.C.’s Adams Morgan neighborhood taken by Russell Brammer in 2011 and registered for copyright in 2016. Also in 2016, a cropped version of the image was used without license on a website suggesting “things to do” in Washington as ancillary promotion of the Northern Virginia Film Festival, which is organized by Violent Hues Productions.  

Violent Hues is owned by Fernando Mico, who stipulated that he found Brammer’s photo on the web and assumed it to be in public domain.  Why this is reasonable conduct, especially for a professional in visual media, is a mystery to me; but suffice to say, the Fourth Circuit Court of Appeals is now weighing a fair use claim that never should have survived beyond its first syllables.

Violent Hues asserted fair use on the grounds that its use was “transformative” (under the first factor) because Brammer’s original purpose was “expressive” while Mico’s purpose was “informative.”  Right there is where the district court should have rejected the fair use claim and recognized that the defendant’s logic not only flies in the face of more than a century of precedent, but that it would have the effect of vitiating copyright at its core. 

A fatal flaw in the defense’s reasoning is that it rests on an assumption of an observer’s interpretation of a photograph—either as “expressive” or “informative”—-which should never be a consideration in this kind of copyright infringement claim.  The “ordinary observer” is only relevant in copyright cases that compare and contrast two different creative expressions where a first author claims that the second author has copied his work (e.g. Blurred Lines).  This is not that kind of claim.

Here, the defendant did not make a new expression of any kind.  He merely reproduced and publicly displayed a visual work without adding anything new that might remotely qualify the use for consideration under the doctrine of “transformativeness.”  Hence, the district court should not have given the rest of the fair use analysis any weight.  If the courts find that it is sufficient to do nothing more than move a protected work from one context into another in order to advance a fair use defense, then Brammer has the potential to do great harm to copyright.  Because context is always fluid.  

Neither authors nor their works are required to remain in contextual lanes.  A photographer who initially presents her work as “fine art” in a gallery is free to license one of her images for use in an advertisement, or to reject such an offer if she chooses.  This example is exactly comparable to the issues in Brammer.  It does not matter what Russell Brammer’s intention was when he made the photograph or what Mico’s intention was when he used the photograph. To conclude otherwise would obliterate the foundation of nearly all licensing because a wide variety of uses—probably most uses—are contextually distinct from the authors’ original intent at creation.

For instance, the story just broke that the exercise equipment and subscription service Peloton is being sued for $150,000,000 for failing to obtain synch licenses for over 1,000 songs used in its exercise videos.  Assuming that’s a factual claim, will Peloton present a fair use defense that the artists and songwriters “never intended to make exercise music” and that, therefore, the uses in their videos are “transformative”?  If Violent Hues’s defense holds water, such a claim, ridiculous as it is, would suddenly seem to have merit.

Courts will only muddy well-established doctrine when, for no reason, they attempt to parse the myriad intentions of authors, the mercurial interpretations of observers, or the claimed purposes of users of creative works in cases like Brammer.  As opined in my previous posts, the reasoning of the defense seeks to metaphysically divide a photograph into its “expressive” nature and its “informative” nature and then argue that the author only exploited the former, leaving others to freely exploit the latter.  This is absurdity fomenting chaos in copyright law.  As counsel for Brammer noted in his address to the panel, nearly all photographs are, on some level, informative and expressive at the same time. 

I will also reiterate the premise that if the court upholds the claim that an exact copy of a photograph was “transformed” from an expressive work into an informative work, then it must conclude that Violent Hues infringed Brammer’s right to prepare derivative works under §106(2) of the copyright law.  This is also an absurdity but is legally sound IF the defense’s fair use argument asserts that a single work can have multiple identities based on the mental states of users and the presumed interpretations of observers.  Such discussions are fine for art historians and critics but are untenable as a matter of law. 

As Justice Holmes stated in the majority opinion in Bleistein v. Donaldson (1903), “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”  This was an opinion on the copyrightability of visual works made for advertising purposes; but Holmes rather presciently advises that copyright law is not well served when the judiciary presumes to play the role of art critic.

Unfortunately, because the district court agreed with Violent Hues’s fair use premise, the rest of the four-factor analysis becomes relevant; and this week’s oral arguments were frustratingly devoted to a lot of discussion about the commercial v. non-commercial nature of the use as well as the consideration under the fourth factor as to whether the use may cause potential market harm to the original work.  Neither consideration should ever have been weighed because the defendant’s use was not “transformative” in the first place.  But here we are.

I will also note the fact that counsel for Brammer implied at one point that his client might have preferred not to have pursued this particular claim in federal court but that “we have no small claim” option.  This caught my attention because I actually wrote a post theorizing that this particular case seemed well-suited to the kind of small claim provision advocated by the CASE Act.  As it stands, Brammer has proceeded with a relatively small claim that, to no fault of his, now has huge implications because the district court erred so egregiously.  Let’s hope the appeals court reverses the decision.

Potion image by popaukropa

Don’t Blame Internet Culture on Copyright

In response to a recent social media dustup, Mike Masnick writes on Techdirt, “…we’ve got quite a story today about how copyright is a total mess and not really fit for the way the internet works today.”

To his credit, Masnick does a solid job describing both the circumstances and the legal mechanisms relevant to a conflict that arose when a media company called Barstool Sports published a video made by writer/performer Miel Bredouw without permission, even posting the work as though it were their property.  But I disagree with Masnick that this is a tale about why copyright is a “total mess” because it’s really a tale about why social media is a total mess with a twist—that when anti-copyright pundits describe weaknesses in the law, they may inadvertently point to how it can be strengthened.  In fact, the lessons to be learned from this anecdote are instructive in ways I’m not surprised Masnick overlooked because, as I see it, this is a tale of two appropriations, and the contrasts between them are significant.

To recap as briefly as possible, Bredouw had an afflatus.  She noticed that the lyrics to “Slob on My Nob” by Three 6 Mafia fit rather neatly into the melody “Carol of the Bells” and decided to demonstrate this by recording herself performing the musical mashup in a brief video she posted to her YouTube channel.   Barstool Sports—run by a group of dudes who seem to be universally recognized as assholes—published Bredouw’s video to their Twitter account as though it were their own (i.e. uncredited).  When Bredouw asked that they credit her, she was ignored and so responded by submitting a DMCA takedown notice to have the video removed.  Twitter processed the notice and removed the video, and then Barstool got bitchy.

Apparently not the company’s first copyright strike, and seemingly fearful that their account could be terminated, Barstool sought to convince Bredouw to rescind her takedown notice by engaging in a fairly typical evolution of behavior, escalating from apologizing to begging to harassing her on all her social media accounts with bro-fans insisting that she stop ignoring Barstool’s demands for resolution.  At the begging stage, Barstool even offered Bredouw $2,000, which she waved at on principle.  

Thus, Barstool took its only course of action to mitigate the copyright strike and filed a (technically invalid) DMCA Counter Notice.  By statute, the counter-notice procedure requires that a platform restore an allegedly-infringing file within 10 days, unless the copyright owner provides proof that they have proceeded with legal action against the alleged infringer.  

Clearly, an underlying factor in this case is that Bredouw did not (and would never) register a copyright in her brief video performance; but that doesn’t make the story any less instructive.  At the same time, it should be noted that were this a conflict that could lead to litigation, Barstool Sports would very likely be held to have violated the law under penalty of perjury when it filed an invalid counter-notice to restore a video it had no reason to claim was removed in error.  

A Tale of Two Appropriations

It is a fun fact that tech pundits, including Masnick, have spent years attacking copyright on behalf of appropriations like those made by Bredouw while ignoring the much more problematic appropriations like the one made by Barstool.  Bredouw made use of two creative works* and combined these in a recorded performance that, under slightly different circumstances, would likely be considered fair use as a parodic commentary on both works and distributed in a manner that is not likely to cause harm to the market value of either work.  In short, it is the kind of creative expression the anti-copyright crowd loves to cite anecdotally as evidence that, “on the internet we are all creators,” meaning that people like Bredouw should not be targets of takedowns.

But the thing is that most copyright owners do not have a problem with uses like Bredouw’s video.  They often enjoy these mashups and parodies; and even when they don’t like them, many copyright owners are well-enough informed about fair use to let such uses remain online without response.  But the outright theft of material made by a commercial enterprise, like Barstool simply taking Bredouw’s video, is exactly the kind of appropriation that tens of thousands of copyright owners have a huge problem addressing online.  Just ask any composer or professional photographer how often they find a business entity using their work, without license, for marketing purposes.

Meanwhile, inasmuch as Masnick is willing to call the dudes at Barstool a bunch of asshats, he does not take any responsibility for playing a substantive role in evangelizing the very culture that results in their behavior.  The anti-copyright, sharing-is-caring, everybody’s-a-creator-now bullshit that Techdirt, the EFF, et al have been slinging into the atmosphere for years is constituent to the fact that even mainstream, commercial operators feel entitled to just take creative works and tell authors to go screw themselves.  In general, the copyright critics have been claiming to speak for the Bredouws of the web while (perhaps inadvertently) empowering the Barstools all along.  

So, one simple response to this type of appropriation is a change to the internal culture and practices of business enterprises.  If Barstool found itself inching toward account termination for accumulating too many copyright strikes, one solution would be to stop using material they know is not theirs! (No doubt there’s a sports analogy that would explain the concept.) But of course copyright owners cannot rely on commercial users to just do the right thing.  So, then what?

Well, oddly enough, Masnick provides one clue when he writes, “But what if it’s the counternotice that’s bogus? That’s… trickier. As the law is set up, then the only response is to sue.”  He’s absolutely right.  The counter-notice procedure, as it stands, leaves small and independent copyright owners with a nearly-toothless remedy in the DMCA; so perhaps this is one area of the 1998 statute that is overdue for revision.  For example, if a platform is allowed to review and reject a takedown request that looks illegitimate, why can’t it do the same thing with a counter-notice?  

That said, while I would disagree with Masnick’s use of the term “total mess” in this case, he is correct to imply that neither copyright law in general, nor the DMCA in particular, can adequately protect the limited scope of authorship entailed in Bredouw’s small video against a corporate entity’s smug appropriation of her work.  The DMCA simply was not written to anticipate small-scale appropriation of works that authors would never register for copyright.  And while it is admittedly not easy to develop an ideal—let alone universal—solution to address this strata of infringement, that is no excuse to call copyright wholly incompatible with “the way the web works today,” as Masnick claims.  

To the contrary, the way the web works today for countless copyright owners, whose works are registered, is that the DMCA is a game of chicken the rights holder plays with the infringer in which the latter often assumes that the former lacks the resources to sue.  Meanwhile, the major platforms have reaped the rewards while pundits like Masnick have told the rights holders to “quit whining and embrace the future.”  

Really?  Because stay tuned.  The conversation about “the future” is already shifting from the appropriation of someone’s video or song or photograph to Silicon Valley’s disruption of food, medicine, transportation, infrastructure, etc.  So, maybe if we fix (meaning strengthen) copyright enforcement online, that policy process will provide some clues as to how we might avoid careening into a state of technological feudalism.  

*For the purpose of this discussion, the copyright status of “Carol of the Bells” is irrelevant. 

Also see Rick Sanders’s post.