Category: Copyright

Second Circuit Rules Against ReDigi in Major Decision

VidAngel.  TVEyes.  ReDigi.  

Copyright interests might view these enterprises as the unholy trinity of tech ventures that have attempted in recent years to strain statutory limitations to such extremes that their interpretations would actually vitiate copyright protection itself.  In August of 2017, the Ninth Circuit denied VidAngel’s crusade to push the fair use doctrine beyond any meaningful scope; in February 2018, the Second Circuit held that TVEyes’s methods for making news content available was substantially different from Google Books under the fair use doctrine of “transformativeness”; and yesterday, also in the Second Circuit, ReDigi was rebuffed in its attempts to assert fair use and first-sale doctrine to legitimize its trade in “used” digital files.

ReDigi has been the subject of several rather long posts on this blog, but to recap, the venture was based on administering transactions in “used” digital media.  The concept was that if Consumer A no longer wants to listen to a particular digital audio file (MP3), she would be able to sell that file to Consumer B, via the ReDigi interface, at a “secondary market” price on the basis that the file would be considered “used.”  

The obvious market-based problem with this proposal is that because digital files cannot accurately be considered “used,” a ReDigi enterprise would result not in a secondary market but rather in a substitute for at least some portion of the primary market.  This is the reason why the court held that the Fourth Fair Use Factor (potential market harm to the original works) “weighed powerfully against” ReDigi in its appeal to the fair use defense.  

Further, ReDigi attempted, as many others have done, to assert that its use of the files was “transformative” under the First Fair Use Factor (nature of the use and commerciality), and this was most notably rejected by Judge Pierre Leval, the author of the “transformativeness” doctrine.  From the opinion …

“Even if ReDigi is credited with some faint showing of a transformative purpose, that purpose is overwhelmed by the substantial harm ReDigi inflicts on the value of Plaintiff’s copyrights through its direct competition in the rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders.”

This is a very important decision as a matter of doctrine because so many users of works, both large and small, have repeatedly tried to exploit the relative vagueness of the word transformative to argue that merely migrating content from one context to another is sufficient to meet that standard.  In finding against TVEyes, this same court drew essential boundaries to reign in the meaning of the term, and now ReDigi further solidifies that opinion.  

Based on these two decisions, it seems fair to summarize thus:  in order to be “transformative” without authoring a new creative expression, a user of works must a) truly offer society something novel and useful; and b) limit the use of protected works to avoid creating a substitute for fair market access to those works.  For instance, Google Books meets these standards while these other business ventures do not.

The court was also not persuaded by ReDigi’s defense under the doctrine of first sale.  As discussed in detail in those other posts, first sale is the limitation in copyright law that allows you to resell your personal copies of works for whatever price a secondary consumer is willing to pay, whether that’s a quarter at a yard sale or thousands of dollars in a rare book shop.  The first sale doctrine dates back to 1908 and, as I have theorized in the past, the principle itself may not ever have been written in a purely digital market where “copies” themselves are no longer limited to one-off, physical objects like paper, plastic, vinyl, etc. 

With regard to ReDigi, the courts agree that our digital music files qualify as “phonorecords” under copyright law and that we consumers have the right to resell our phonorecords.  The problem is that the law also holds that files are “reproduced” in the process of transferring from one device to another.  Even if the ones and zeros that compose “Silent Night” on my computer are erased while they are written onto someone else’s computer, this act is legally held to be one of “reproduction,” which is not exempted by the first sale doctrine.  

Add the interim step of copying the data temporarily to ReDigi’s servers, plus the mass-market implications of such an enterprise, and the company’s first sale defense strays very far from the individual’s right to resell one legally-acquired copy of a work one time.  

ReDigi and its proponents seem to have hoped to make a case that this “reproduction” transaction is, in principle, analogous to the transfer of used copies in the physical world that spawned the first sale doctrine; but as the court held in its opinion, it would be the job of Congress to rewrite the statute to say what they seem to wish it said.  Meanwhile, I suspect that if such a legislative proposal were to be attempted, then history, case law, and market analysis would dictate that the first sale doctrine is untenable in a purely digital market. 

In this regard, it is funny how often copyright proponents are accused of clinging to our metaphorical buggy whips.  Because when the Supreme Court ruled in favor of retailer R.H. Macy in the case that established the first sale doctrine, New Yorkers were in fact still taking hansom cabs to go shopping! 

Relatedly, as I opined in one of those previous posts, it seems both futile and myopic to propose amending the copyright law in order to foster “resale” of digital files in a market that has already shifted so dramatically to streaming nearly everything on demand.  So, ReDigi was not so much clinging to old models as it was seemingly trying to cobble together a legal framework to support a new business model that may already be obsolete.    

Either way, rights holders should be very pleased with the outcomes in what I’ve called the unholy trinity of VidAngel, TVEyes, and ReDigi because the courts have upheld the principle that copyright’s limitations are meaningless if they stray so far as to eradicate its protections. 

Might As Well Be Bots

So, I don’t engage very often via Twitter, but once in a while, I respond to something that catches my attention and then usually regret spending time responding to the responses.  Last week, I noticed that Pirate Party MEP Julia Reda—the face, voice, and tweetdeck of anti-Article 13 activism in the EU—posted an odd tweet, and I replied … 

Because, of course, even if Tumblr’s efforts to use AI to identify pornography are a) accurately reported; and b) laughably ineffective, it is misleading for Reda to suggest that this folly is particularly instructive to the purpose or eventual function of Article 13.  What she means to imply, of course, is that any comparable technology, which may be used to identify content that allegedly infringes copyright on a large platform like YouTube, will result in the same kind of errors that are reportedly happening on Tumblr.  

I consider this tweet to be scare-mongering for many reasons, but here are three simple ones:  1) existing technologies currently in use for identifying copyrighted material is already better than whatever is being described in the Tumblr/porn example; 2) it is needlessly defeatist to say that these technologies can never be improved and/or supported by human oversight to alleviate error; and 3) if any copyright ID system is too aggressive and error-prone, the rights holders advocating Article 13 aren’t going to like it either.  All of which leads me to conclude that calming down is more rational than, once again, declaring that the internet needs to be “saved.”

So, Reda and I had a brief exchange in the service of nothing (i.e. the reason I don’t like the forum), and went our merry ways.  But I did notice that at least one of the “users” who liked and retweeted one of Reda’s responses to me looked an awful lot like a bot.  The account was a handle and an avatar, it had just a few followers, and its tweetdeck was almost exclusively about the evils of Article 13.  So, while scrolling that thread and wondering whether the account might be a bot programmed to RT anti-Article 13 stuff, I saw this tweet posted by a different account with zero followers…

And this prompted a new thought.  What difference does it make if a tweet like the above is posted by a bot or a real person?  Because if social media platforms like Twitter train real people to respond with pavlovian certainty to any given issue, they might as well be bots.  Either this individual simply doesn’t know that the platforms he says will be “destroyed” are the biggest of big corporations; or he is so well trained to respond to certain signals, that he’ll just remain blissfully unaware of his own cognitive dissonance.  Or he’s a bot.  

Either way, same result.  Some other bot, or mindless person, or ten-year-old child repeats the unfounded assertion that, for instance, the legislative language is “vague,” and boom—it’s now a fact.  Why would anyone take some anonymous tweet at face value which claims that a body of legislative language—in any area of law—is vague?  Because they want to believe it, and the desire to perpetuate that narrative is sustained by knowing diddly squat about the legislative language itself.

When the hyperventilating saga that was the anti-SOPA campaign peaked in early 2012, the internet giants still enjoyed a general benefit of the doubt that they had built platforms that were truly making global democracy work better.  (And that they had built these platforms out of the goodness of their hearts!)  So, all those anti-SOPA headlines warning people not to let anyone “break the internet” were understandably hard to counter with any kind of cool reason.

Today, though, it is curious—if not a little bit frightening—that even after the fallout from stories like Cambridge Analytica, the “Save Your Internet” battle cry is still effective in the current opposition to Article 13.  It is, after all, a reprise of the same digital dirge that was so effective seven years ago; but surely, this general call to arms cannot jibe with what we’ve learned over the past two years about major platforms and a number of paradigms not worth saving.

In 2011, I wondered how many non-constituents were marshaled to stop American legislation (SOPA/PIPA) in its tracks.  How many foreign citizens? How many children?  How many bots?  Because, as David Lowery has detailed in a multi-part post, the methods employed by Big Tech to sway public policy may be one of a handful of legitimate threats to democracies around the world.  And on this topic as to who—or what—is being rallied to action, TorrentFreak published a new post that misses, or purposely obfuscates, a very important distinction.  Andy calls hypocrisy on the IFPI for criticizing Julia Reda’s shout-out to children in this tweet:  

Andy compares Reda’s appeal to children to the fact that major copyright interests have often launched initiatives to educate kids about copyright and piracy.  “…it’s pretty ironic that IFPI has called out Reda for informing kids about copyright law to further the aims of ‘big tech companies’. As we all know, the music and movie industries have been happily doing exactly the same to further their own aims for at least ten years and probably more,” he writes.   

But the differences between Reda’s targeting kids on social media and the kind of initiatives Andy refers to are substantial and significant.  At a very basic level, educating children about how copyright works may be offensive to the pirates out there, but copyright has been part of the legal fabric of Europe and the U.S. for a couple of centuries, so it’s not exactly propagandist to explain its function in age-appropriate ways to groups of schoolchildren.  And given the fact that plagiarism can end someone’s college or university career, the foundations of copyright are in no way anathema to general education.  Outreach to schools on the subject of piracy and copyright tend to include the following lessons or discussions:

  1. education about the skilled people who make the movies, music, etc. people enjoy.
  2. a message that taking things without paying for them is both illegal and wrong.
  3. a message that respecting creators falls under the principle of the golden rule.

While these themes may be antithetical to pirate rationalizations for mass infringement, they’re not exactly outliers to the fundamentals that most people try to teach their kids. (Substitute creator for farmer, and the discussion will be very similar.)  In contrast to the implications of Reda’s tweet, major rights holders don’t generally engage children via Twitter to take direct action aimed at promoting or stopping specific legislation.

Though nobody can doubt that when organizations like movie studios fund education programs in response to piracy, the effort is industry-serving, but those types of broad initiatives do not compare to an elected official addressing teens and tweens on social medial and telling them (untruthfully) that YouTube won’t work anymore because of a policy those kids are not going to understand. And that fairly well sums up what I think about all of this—that the so-called defenders of “the internet,” who appeal to democratic principles in that effort, consistently demonstrate exactly why “the internet” isn’t worth defending.  

Photo source by davincidig

Another Inscrutable Attack on Copyright by CCIA 

In a blog post last week for Project DiSCO (of the CCIA), Jonathan Band uses less-than-subtle sleight of hand to conflate the potential business implications of new photographic technology with photographers’ interests in copyright enforcement.  Citing a Washington Post article by Geoffrey Fowler, which proposes that ever-improving, AI-enhanced photographic tools built into smart phones are “democratizing” the opportunity for anyone to make “beautiful” photographs, Band notes that these technological advancements threaten the livelihoods of at least some segment of professional photographers.  

“Now, someone with a decent eye and a Pixel 3 can take photographs that are good enough for many events. The default aesthetics of Night Sight [a new technology] will satisfy many, if not most, potential customers,” Band writes.  And this may be true up to a point.  Off-the-shelf, push-button technical “perfection” in the hands of everyone can threaten the market value of many types of professional photographers.  

Of course that premise opens up a multi-faceted discussion about the myriad skills necessary to be a great portraitist, photojournalist, fine-art photographer, and so on.  And while that particular conversation may be very engaging, it has almost nothing to do with any particular photographer’s interest in her copyrights, and it has even less to do with the target of Band’s criticism—the copyright small-claim proposal called the CASE Act. 

“In response to this changing technological landscape, many of the organizations representing photographers have focused their energies on reforming copyright,” Band writes.  But this is a disingenuous segue because CASE is not remotely a response to changes in photographic capture technology.  The right or ability to protect an image is agnostic with regard to how the image is made.  Period.  Moreover, the premise of the CASE Act (i.e. enforcing a copyright claim for less than the cost of federal litigation) actually predates digital technology, although widespread infringement of works online does emphasize the urgent need for a small-claim remedy.

As described in this post about the House Judiciary hearings on CASE in September, one of the major complaints among independent creators is that commercial entities use their works for online marketing etc. without license.  If CASE passes, we can probably expect to see rights holders most often avail themselves of the small claim tribunal for these types of claims; and it is frankly impossible to fathom why anybody who cares about basic fairness in the market would have a problem with that.  Least of all the corporate behemoths represented by CCIA.  

Moreover, while it is true that advocacy of CASE has emphasized the plight of photographers—because theirs are the works most often infringed on the web—we should remind the CCIA and its readers that the bill proposes a small-claim option for all copyrightable works.  So, at best, Band’s focus on the latest advancements in cellphone photography have nothing to do with, say, musicians or graphic artists whose works are infringed in cases ideally suited to a small claim. 

Band’s post is, of course, a variation on a tired theme; and in that regard, I feel confident about telling the folks at CCIA (and the Internet Association also opposed to CASE) that authors of all stripes are sick to death of the following words of wisdom …

“The energy of associations representing photographers would be better directed toward helping photographers develop business models and skills that would allow them to thrive in the digital environment, rather than lobbying Congress to make changes to copyright law of questionable utility.”

Perhaps the energy of associations representing THE BIGGEST TECH CORPORATIONS ON EARTH would be better directed at playing Beer Pong than smugly telling professional creators time and again how little they they understand their own crafts and business interests.  Maybe CCIA can adapt to that new model.

 Photo source by meatbull