Category: Copyright

Can U.S. States Infringe Copyrights with Impunity?

If the Supreme Court agrees to hear Allen v. Cooper, copyright owners and constitutional scholars will both be watching closely.  The practical matter for copyright owners is whether a U.S. State, or agents of a State, may freely use copyrighted works without permission and remain immune from claims for infringement.  As of now, the Fourth Circuit Court of Appeals contends that a State entity (e.g. a university) may use or make available an author’s music, photography, film clips, etc. without compensation or permission, and the rightsholder has no remedy whatsoever.  First, some background as condensed as I can make it …

June 10, 1718, the pirate Edward Thatch a.k.a. “Blackbeard” grounds his flagship Queen Anne’s Revenge off the coast of North Carolina at what is today called the Beaufort Inlet.  Fast-forward past the Revolution to the tenuous founding period when the newly-independent States separately debate ratification of the Constitution.  

For instance, July 1788, nearly 300 delegates from the counties of North Carolina gather for several days  in Fayetteville and devote more than two of those days debating Article III and the fears that the the federal judiciary will preempt the authority of state courts.  September 17, 1789, the U.S. Constitution is ratified including, of course, Article I, Section 8, Clause 8, granting Congress the power to write federally uniform IP laws, and the first Copyright Act is passed in May of 1790.

But …

In 1793, anti-Federalist fears are realized in Chisolm v. Georgia, when the estate of Alexander Chisolm of South Carolina successfully sues the State of Georgia in the U.S. Supreme Court for monies owed for supplies provided during the war for independence.  State obligations for the war debts are already a heated issue, and now a citizen of one State has sued the government of another State in the brand new federal court system, thereby vitiating the State’s authority over its own courts.  In response, we get the Eleventh Amendment on February 7, 1795, establishing the doctrine known as state sovereign immunity, to wit …

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

As an interesting side note, North Carolina Federalist, James Iredell, serving as Supreme Court Justice was the one dissent in Chisolm; and in the aforementioned 1788 debate in Fayetteville had declared, “The propriety of having a Supreme Court in every government must be obvious to every man of reflection. There can be no other way of securing the administration of justice uniformly in the several states. There might be, otherwise, as many different adjudications on the same subject as there are states.” 

Fast way-forward to November 1990.  Congress passes the Copyright Remedy Clarification Act (CRCA) to affirm that, indeed, States, instrumentalities of States, and officers and employees of States acting in their official capacity, are subject to suit in Federal court by any person for infringement of copyright… 

Then …

On November 21, 1996, an exploration company called Intersal, Inc. locates the wreck of Blackbeard’s Queen Anne’s Revenge, and the State of North Carolina engages Rick Allen’s Nautilus Productions to produce documentary motion picture material of the wreck, its recovery, etc.  At some point, a dispute arises between Nautilus and the State over certain uses of the footage, and the State settles the claims for a fee of $15,000.  But subsequent to that settlement, in 2015, North Carolina passes a remarkably narrow law “requiring that all recordings and other documentary evidence of a derelict vessel or shipwreck in the custody of any agency of the North Carolina government be a public record,” to quote Hugh Stephens from his excellent coverage of this case.  This law is colloquially referred to as “Blackbeard’s Law.”

Next …

North Carolina resumes infringing uses of the documentary footage, and Rick Allen files suit.  The District Court finds for the plaintiff, but on appeal, the Fourth Circuit reverses, holding that the 1990 CRCA is unconstitutional, finding that state sovereign immunity means that no copyright owner may hold any State (or its agents) liable for copyright infringement.  

P.S.  That this particular case happens to involve a literal pirate is almost as nerdishly satisfying as the fact that the name of Blackbeard’s ship Queen Anne’s Revenge shares the eponym with what is typically considered the first authorial copyright law, England’s Statue of Queen Anne of 1710.

Copyright Owners Should Be Concerned

Copyright infringement by State actors is an ongoing and growing concern, especially in a time when university librarians et al seem too eager to make everything available via the internet. Although the Fourth Circuit holding is consistent with precedent rulings, an amicus brief filed in this case argues that the Supreme Court should grant cert in Allen, in part because those precedent rulings are deeply flawed.

“If the Fourth Circuit’s decision stands, there will be few (if any) remedies available to compensate authors for their losses. This is not what Congress intended,” states the brief written by David Nimmer* in collaboration with Professor Ernest Young and book author Michael Bynum.  Bynum is an exemplary victim of the growing State infringement problem.  After he provided an advance-copy of a new book to the Athletic Department of Texas A&M for the purpose of fact-checking, the university instead made the work available on the internet and claimed sovereign immunity in its defense. 

The Nimmer brief is excellent reading for any copyright/constitutional law geeks out there who want an overview of the various components related to this case, which I cannot adequately summarize here.  But one point the brief makes that may strike many readers as especially compelling is the argument that, at the nation’s founding, the Framers recognized the necessity for a uniform, federal copyright law concurrent with the need to protect the individual right of free speech.  And because there is evidence in both the record of the founding period, and in subsequent caselaw, that copyright is meant to be an “engine of free expression,” the Nimmer brief argues quite rationally …

“The Framers could not have intended for States to retain immunity against claims for copyright infringement, as such immunity deters the creation of artistic expression and allows States to interfere with the author’s speech, including how he wishes to publish and use his work.”

This is an aspect of copyright that many casual critics often overlook:  that by forcing an author to make work available in a manner anathema to her intended expression—including her right to express nothing at all—the use may abridge her speech right.  When that kind of use is made by a citizen or private entity, the First Amendment is not implicated; but when such a use is made by a State actor, the First Amendment is absolutely implicated.  This is just one of several reasons why it is nonsensical to conclude that the Eleventh Amendment could ever have been intended to prevent an individual citizen from exercising a constitutionally-protected right when that right is infringed by a State actor.  As the Nimmer brief states quite succinctly, “Sovereign immunity should not be a license to steal.” 

Also see Nautilus Productions’s own blog post on this case.

* David Nimmer is the co-writer, with Melville Nimmer, of the authoritative treatise Nimmer on Copyright.

On New Models, Journalism, and Digital Advertising

It was encouraging to see our most prominent millennial Member of Congress, Rep. Ocasio-Cortez (D-NY) recognize the link between a healthy democracy a professional class of journalists. On Friday, presumably in response to the startling number of layoffs at BuzzFeed, @AOC tweeted this:

True to form, Mike Masnick of Techdirt replied:

It is ironically quaint at this point to see anyone, even Masnick, still using the “buggy whip” metaphor.  I mean could the term beat a dead horse be any more appropriate?  The buggy whip was always a stupid reference because horse-drawn vehicles are, in fact, obsolete, while the content that big tech companies exploit and devalue (like journalism) is clearly still very useful and in demand.  

Several years ago, the “adapt to new models” narrative was just dumb magical thinking.  But today, we have ample evidence to call this talking point a demonstrably failed proposition.  I guess it’s good that Masnick did not suggest journalists should tour, sell merch, or find new ways to connect with their fans; but still, Mike should go lie down by his dish and think about what he’s done.  

There may be new models in the sense that we enjoy new ways to access and experience content—be it news or entertainment—but there are no truly novel economic models to support the production of content in a free market.  The revenue needed to pay reporters, writers, etc. comes from consumers or it comes from advertisers.  Everything else is alchemy.  And while there are certainly many other factors external to Facebook and Google that have changed the nature of journalism and our relationship to it, the market reality for news and other content creators is that the major internet companies systematically poisoned both revenue streams.

First, the industry laid siege to the principles of copyright and promoted a faux-populist (frankly childish) message that all content must be free.  Then, they helped fulfill the promise of free by erecting giant tollbooths that siphoned off the lion’s share of the available ad revenue, which would otherwise go directly to content creators like journalists.  It’s funny that the free-content, anti-copyright crowd tend to mock as anachronistic any news organization that would presume to put up a paywall, but that’s exactly what Facebook is—a paywall.  No, we don’t pay to use it, but the content creators pay with the lost revenue they rightly earned.

It is especially funny (or sad) that Masnick would bring out a variation on the adapt message in context to BuzzFeed, which IS a new model.  It was built as an online-only platform that would be free to consumers, and it was designed with social media in mind.  Yet, as the New York Times reports, founder Jonah Peretti believes the solution to the Facebook/Google problem may be a merger of several digital news networks into a group that can negotiate better terms for ad-revenue sharing.

But, again, notice how there’s no “new model” there.  It’s just an old model called advertising now dominated by two massive companies.  And the fact is that news media companies have adapted, although in the ever-changing landscape of platforms like Facebook, it is probably more accurate to say that they have reacted in ways that are of little value—economic or social—to the purpose of journalism.

In October of 2018, Alexis C. Madrigal and Robinson Meyer, writing for The Atlantic, reported that several news companies laid off dozens of reporters, mostly writers, to make room for video production resources in an effort to capitalize on Facebook’s new video initiative.  Citing a lawsuit pursuant to Facebook’s allegedly misrepresenting the data on video impressions for advertisers, the authors write…

During the period of purported wrongdoing, from July 2015 to June 2016, journalists and newsroom leaders across the country worked to cover an unprecedented presidential campaign in an information landscape that Facebook was constantly, and erratically, transforming. Even if, as Facebook argues, it did not knowingly inflate metrics, it set up new and fast-changing incentives for video that altered the online ad market as a whole. 

So, even if adapting to video had proven remunerative for news companies, this is still not a good environment for journalists, or for the public that relies on their work.  News organizations should focus on doing the best job of reporting the news, not figuring out how to navigate the opaque and erratic landscape of Facebook.  As I say, that’s not adapting, it’s reacting; and that same Atlantic article cites one example that makes this point.

There is something seriously flawed in the narrative that BuzzFeed potentially broke an important story this month about Michael Cohen’s testimony and then had to decimate its national news team last week–but that, in 2016, they spent resources making a viral video featuring two employees exploding a watermelon.  That is adapting to new models? Hard-news supported by an old Gallagher joke?  And it didn’t even work.  “BuzzFeed never repeated its success,” write Madrigal and Meyer. “But that didn’t stop reporters from being taken off the line of duty, while a promotional video of water being poured on permeable concrete racked up 100 million views.”

Meanwhile, as intermediaries collect the ad revenue that content creators like journalists generate, the advertisers themselves may be getting a raw deal themselves.  Facebook’s allegedly fraudulent reporting of video-view metrics is consistent with other evidence suggesting that trouble in the digital advertising market may be far from over.  As cited in a recent post, Max Read of New York Magazine tells us that a staggering amount of the internet, at any given moment, may be fake.  Read writes …

Studies generally suggest that, year after year, less than 60 percent of web traffic is human; some years, according to some researchers, a healthy majority of it is bot. For a period of time in 2013, the Times reported this year, a full half of YouTube traffic was “bots masquerading as people,” a portion so high that employees feared an inflection point after which YouTube’s systems for detecting fraudulent traffic would begin to regard bot traffic as real and human traffic as fake.

What all that means for advertisers, of course, is that they’re not getting the impressions they’re paying for, let alone the quality impressions digital ad sellers continue to promote. If this is the case, it implies that another reckoning may be at hand between the major advertisers and Facebook and Google.  Wouldn’t it be interesting if the solution for both advertisers and news organizations is that the brands return to buying more media from the news sites themselves rather than the intermediaries?  Yeah, I know.  It’s an old model.  But it worked pretty damn well.

Robot image by frescomovie

EFF Observes (Anti) Copyright Week

So, it turns out it’s Copyright Week.  I had no idea, and it’s already Copyright Hump Day. What with the government shutdown, the Barr confirmation hearings, the litany of breaking stories in the Russian-interference investigations, I just didn’t notice.  But then I saw a post by the Electronic Frontier Foundation recognizing Copyright Week, including an obligatory “SOPA lead” as recommended in the IOM Guide to Critiquing Copyright in the Digital Age.  Because, of course, for the EFF, it’s Anti-Copyright Week.

Initially, I thought there is no way to respond to the EFF’s post other than a) citing dozens of thoughtful experts who know how copyright works; or b) quoting the eminent attorney Vincent (Joe Pesci) Gambino’s entire opening argument in the murder trial of his cousin:  “Everything that guy just said is bullshit.”*

But that prompted a different thought.  After more than six years banging out this blog, I feel confident about saying that there are two very different kinds of copyright critics in the grand debate; and unfortunately—because any area of law is usually arcane for most of us—it is the least honest critics who wield the most public influence.  In yesterday’s response to Professors James Boyle and Jennifer Jenkins, you won’t find me accusing them of dishonesty, only questioning their ideas.  But with the EFF, Public Knowledge, Fight for the Future, Cory Doctorow, and Mike Masnick, it’s a different story.  These voices consistently misrepresent the law and history in the service of their policy agendas.

This latest post by EFF is PR disguised as copyright criticism—comparable to health information sponsored by Big Tobacco or environmental reports funded by Big Petroleum. There may be kernels of truth, but they are well hidden in a fog of obfuscation and outright falsehoods.  Here are a few classic examples featured in the five main topics EFF says it is focusing on this Copyright Week:

Monday: Copyright as a Tool of Censorship. Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act as a legal cudgel to silence it.

You will not find a remotely-qualified copyright advocate who does not criticize the misuse of copyright to remove, or otherwise silence, material that is not properly the subject of copyright infringement.  Yes, people who don’t know what they’re doing abuse systems like the DMCA notice & takedown procedure in order remove material they should not.  The irony here is that the EFF is often responsible for the kind of copyright confusion that leads to a variety of mistakes online.  This is a classic example of the anti-copyright crowd’s “few bad apples” approach to public policy, advocating that the exception should change the rule.  Because here’s a pro-tip:  it is really hard to find a copyright-owning artist who is opposed to freedom of expression.

Tuesday: Device and Digital Ownership. As the things we buy increasingly exist either in digital form or as devices with software, we also find ourselves subject to onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it–meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.

Here, the EFF refers to Section 1201 of the DMCA and its non-circumvention protection of the copyrighted software that runs devices and machines.  What they tend not to mention is that this is a much more complex conversation that extends way beyond the realm of copyright.  For instance, “tinkering” with tractors and other machines has environmental and safety implications that are the purview of federal regulatory bodies that have little to no relationship with the U.S. Copyright Office.  

Sure, the products we buy belong to us, but that doesn’t mean we get to disable catalytic converters or safety features; and even where the right to “tinker” may seem reasonable, copyright may not be the legal barrier in play. Your beef could be with the DOT.  Relatedly, the EFF fails to mention that the Copyright Office has generally agreed with petitioners seeking to circumvent TPM for research and other types of fair uses.  On TPM and 1201, EFF is often guilty of committing lies of omission in order scapegoat copyright; and this includes failing to mention that, absent these provisions, popular means of consuming creative works on digital devices would not exist.

Wednesday: Public Domain and Creativity. Copyright policy should encourage creativity, not hamper it. Excessive copyright terms inhibit our ability to comment, criticize, and rework our common culture.

Granted, the word “excessive” is an opinion and not a false statement.  Though, as pointed out numerous times, including in yesterday’s post, nobody has yet demonstrated with empirical data that current terms are doing any harm to creativity.  To the contrary, creative activity—both amateur and professional—has grown since passage of the CTEA in 1998.  Still, in the body of the EFF post, it says the following:

“In an example of how large media and entertainment companies successfully make copyright laws for themselves, they prefer to have control of things long after the people who actually created them have passed away. They successfully lobbied to have the term of copyright extended, essentially keeping the public domain from growing for decades.”

THAT is a lie.  Yes, the big studios et al did favor the 20-year term extension of 1998, but it was not remotely a law they “made for themselves.”  This is a matter of record, and you can even can look it up using this thing called the internet.  The U.S. term extensions were solely a matter of America catching up with terms adopted, in some cases more than 100 years ago, by European and other trading nations. The EU added 20 years in 1993, so the U.S. did likewise five years later.  I know it’s boring because there’s no villain in that story, but that’s how it happened.

Thursday: Safe Harbors. Safe harbor protections allow online intermediaries to foster public discourse and creativity. Safe harbor status should be easy for intermediaries of all sizes to attain and maintain.

Apropos what I just said about the term extension, Section 512 of the DMCA was a copyright provision the online service providers “made for themselves,” and in the late 1990s, when AT&T, Verizon, et al sought this liability shield it was not an unreasonable request.  But during the two decades since that time, platforms like YouTube (speaking of corporate giants) have been at liberty to monetize the unequivocal and chronic infringement of copyrighted works solely because of the “safe harbor” provision.  And every attempt to correct that aberration of Section 512’s original intent has been met with hysteria by the EFF and others, declaring that the internet will break, free speech will die, and other tales of terror.  And, ironically enough, that brings us to EFF’s Friday bullet point …

Friday: Filters. Whether as a result of corporate pressure or regulation, overreliance on automated filters to patrol copyright infringement presents a danger to free expression on the Internet.

You know what’s funny about EFF’s (and others’) shuddering at the prospect of “filters” to identify copyright infringement?  It was exactly what the OSPs proposed in the 1990s as a counter-balance to the aforementioned safe harbors they were seeking!  I’ll take the liberty of paraphrasing, but they essentially said, We should not be responsible for our users’ infringements, and if granted this liability protection, we will work to develop technical measures to weed out and mitigate infringements.  That’s not just my opinion. As a direct result of the OSPs’ reference in this regard, Congress fully expected rightholders and service providers to collaborate to develop “standard technical measures.”

But now that we’re more than 20 years down the road, and the major internet platforms are insanely wealthy and powerful, the technical measures their OSP forebears proposed (and which were never implemented, by the way) are now deemed by EFF et al as a threat to the internet and free expression.  And not surprisingly, some of those chickens are lately coming home to roost, as we see the paragons of digital-age creativity—the YouTubers—discover that they don’t really like their work being ripped off either. And so YouTube responded how?  By implementing a new technical measure called Copyright Match.

If you’re looking for a competition of ideas on copyright, then read the various scholars who debate its core principles and mechanisms.  If you’re looking for basic facts, check the Copyright Office website.  And if you’re looking for PR messaging that misleads, confuses, and frightens the hell out of people for no reason, then by all means the EFF is the goto source for you. Because what they really hope one day to celebrate is Copyright Weak.  (Speaking of which, when is National Dad Joke Day?)

*From the motion picture My Cousin Vinny (1992).