Category: Copyright

Libido for Dystopia:  A Response to “The Second Digital Disruption” – Part II

In Part I of this response to Raustiala and Sprigman’s paper, I contend that the authors place too much emphasis on the porn industry (namely on one data company’s transformative effect) as a model that can be instructive for other types of creators.  Primarily, I believe the authors fail to weigh the substantial differences between porn and nearly all other forms of copyrightable expression.  In Part II, I respond to the paper’s main thesis that access to consumer data can significantly minimize the risk involved in producing a creative work and that this lowered barrier suggests a recalibration of copyright law in both theory and practice. 

Although the paper’s authors do parenthetically admit that it is too soon to predict the extent to which “data-driven authorship” may reduce the risk of market failure, they still proceed to make a strenuous case for limiting copyright protections on this basis.  While it seems very likely that data-mining us consumers will surely continue to influence the development of at least some creative works, it is indeed far too soon to assume that market success will be any more likely to result from algorithmic intuition than from good old-fashioned human instinct.  

For one thing, even pre-digital over-analysis of market expectations has a long history of yielding works that audiences find dull and, well, predictable.  Meanwhile, more than a few works of distinction are the products of gut feel, singular visions, and even drug-induced madness.  Most of the time, of course, the works that earn and retain their place in the stars is pure happenstance and sweat—an unpredictable cosmic meeting of elements in both time and place, plus a lot of work.  

But even if data-mining could produce the elusive magic box of prescience that increases the likelihood of market success by a significant margin, does this really implicate a change in copyright law as Raustiala and Sprigman propose?  They write… 

“Copyright is traditionally justified as necessary to protect investments in the production of creative works. If others are simply free to copy original works, then originators will find it impossible to recover their investments. If you want creativity, the story goes, you have to stop copying.”

That is a partial truth at best.  Investment of either time or money, or both, is certainly one reason that is traditionally presented as the case for copyright protection, but it is not necessarily at the core of copyright’s purpose for existing.  As referenced in this recent post, it has long been held in English courts, American courts, and the innate sentiments of many people that the fruits of the author’s labor are her property as a principle of natural right.  So, it is hardly axiomatic that copyright’s raison d’etre is based solely on the protection of some externally measurable amount of investment risk.  

To the contrary, copyright’s protections apply uniformly to works produced across a very wide spectrum of investment risk.  A song written in a half hour is protected in exactly the same manner as a song mulled over for years, just like the boot-strapped indie film made with personal debt is protected the same as the hundred-million-dollar studio feature.  The prodigy has the same rights as the late bloomer, and if the market rewards either creator, this will only reflect an appreciation of the work itself and not the amount of labor or risk invested to produce the work.  

Relatedly, how might we measure the relative risk taken by various authors in order to then rationally limit copyright based the proposed Raustiala/Sprigman theory?  Is the novelist who spends three years writing on spec taking a greater or lesser risk than the investors who pour millions into a new action movie?  Even without detailed analysis, we can say with near certainty that the investors in the blockbuster film stand a much better chance of earning a substantial return than the book author will ever receive for her invested risk.

Yet, according to Raustiala/Sprigman, we might need to consider limiting the copyright protections for the speculative book authors on the grounds that the big-time movie investors may soon be able to use consumer data to reduce their risk by some as-yet-undefined margin.  And if copyright were limited on this basis, how could such a policy achieve anything other than to exacerbate the disparity between corporate and individual creators?  If, as the paper points out, TimeWarner needs AT&T’s data-mining capacity to compete with Netflix and Amazon, then it stands to reason that the independent author in a market dominated by “data-driven authorship” becomes an even smaller cog in the machine. 

And this appears to be Raustiala and Sprigman’s real goal:  to reduce the status of the author as an individual who does anything particularly special.  After all, if we redefine the significance of the author, this would certainly be grounds for redefining the purpose and practice of copyright law.  Despite the fact that there is no telling at this moment how significant “data-driven authorship” may be, the authors of this paper are ebullient over the prospect that it will likely “undermine the Promethean allegory” in favor of what they call the “Panoptian model.”

“In the Panoptian model, creators are no longer Promethean geniuses who bring something previously unknown from the heavens down to earth.  Instead, they are unsleeping watchers.  They are accessories to a system of surveillance — one that we, as consumers, have for the most part bought into willingly, but which we are nonetheless likely to understand [sic] not entirely new and less than entirely beneficent.”  

I’ve read some artist-hating, tech-utopian declarations over the years, but this paper’s view of creators as “accessories to a system of surveillance” may be the winner.  Its implications reach far beyond Raustalia and Sprigman’s feelings about authors and copyright and—perhaps unwittingly—advocates the supremacy of the networked hive in which each sovereign individual’s value is reduced to a data point.  

In our contemporary narrative, when society is struggling to hold onto democratic principles (i.e. our humanity) against the forces of tech-enabled extremism, these academics, so eager to find some rationale for limiting copyright law, have managed to advocate what Professor Shoshana Zuboff has termed “surveillance capitalism.”  “This new form of information capitalism aims to predict and modify human behavior as a means to produce revenue and market control,” she writes.  Or to put it another way, Raustiala and Sprigman seem to hope that data can do for art what Cambridge Analytica has done for elections.   

What many readers may not know is that Christopher Sprigman is one of the most influential thought leaders on contemporary copyright, which I find disconcerting to the extent this paper reflects “new thinking.”  While I see no reason to scorn conversations about amending the practice of copyright law in response to new and clearly-definable market realities, I find the underlying view of creators espoused by this paper to be frankly cynical and ugly.  As the authors write, “The [Panoptian] label refers to Argus Panoptes, the hundred-eyed giant of Greek mythology who served as unsleeping watchman for Hera.”  Indeed.

At best, Argus is an apt metaphor for a surveillance state that serves the interests of a single, powerful, and jealous goddess.  Of course, the force that brings down that surveillance state, which causes Argus to sleep with all eyes closed and thus lose his life to the sword of Mercury, is music.  So, with respect to their chosen metaphor, it is notable that the future Raustiala and Sprigman want to embrace is one that does not celebrate the next Brian Wilson who tells family, friends, and corporate powers to “screw the formula” while he produces a landmark album that makes even the Beatles drop everything and say, “Damn.  That’s different.” 

Photo by kentoh

Libido for Dystopia:  A Response to “The Second Digital Disruption” – Part I

“It is as if some titanic aberrant genius, uncompromisingly inimical to man, had devoted all the ingenuity of Hell to the making of them.  They show grotesqueries of ugliness that, in retrospect, become almost diabolical.” – H.L. Mencken, Libido for the Ugly (1927)

A paper published in August by Kal Raustiala of UCLA Law and Christopher Jon Sprigman of NYU Law proposes a new, generalized rationale for limiting copyright protections:  “data-driven authorship.”  Titled The Second Digital Disruption:  Data, Algorithms and Authorship in the 21st Century, the central thesis hinges on the assumption that because authors of creative works will soon able to use Big Data to predict a greater likelihood of market success for a given work, this reduces the investment risk in producing that work, which in turn recommends limiting copyright protections.  From the paper …

“The next digital disruption is going to reach deeper. It will re-order how creative work is produced, and not simply how it is promoted and sold. It will transform our notions of authorship. It will raise fundamental questions about the nature and value of human creativity. And, perhaps less consequentially for the world at large — but of central importance to lawyers — it may shift how we think about the value and utility of, and even the moral justification for, intellectual property rules.”

Raustiala and Sprigman see the inevitable adoption of “data-driven authorship” as a predicate for a philosophical shift in the way society perceives the author and that this perceptual change ought to yield a revision of the underlying moral rationale for copyright.  Rather than viewing the author as “Promethean” (i.e. as an individual bestowing her works upon society), the paper proposes that “data-driven authorship” proposes a concept of the author as “Panoptian” (i.e. as a “watcher” who synthesizes creative expression in a collaborative process with her audience whose proclivities for various types of content can be understood and even predicted through data).* 

Betraying the Purposes of Creative Expression

If I had to pick just one flaw in this paper (and it’s hard to choose one for a fairly short rebuttal), it would be the naive bias, typical among copyright skeptics, that misrepresents the relationship between creators and their audiences by presuming that the goal of creative expression (art) is necessarily to give people what they want. While it is certainly true that most creators hope for market success and that big-money investors in works like blockbuster movies have always endeavored to predict, if possible, the likelihood of producing a hit, this business narrative does not fully represent the creative impulses, talents, or labors of individual authors, who must remain the central figures of copyright law, if copyright law is to mean anything at all.

If every creator were overly motivated to second-guess what his audience wants, then both creators and audiences would be left with the homogenous output that would eventually result from such a tedious feedback loop.  All works of note (i.e. the works we love) in every medium have generally earned their place in the anthology of “greatness” by virtue of being distinctive, experimental, or ground-breaking—works produced by artists who did not ask what we expected of them, but instead gave us works we did not know we wanted until we had them. And this does not even account for art that meaningfully provokes because it is controversial, unconventional, or uncomfortable.  

It is particularly odd that the authors of this paper so eagerly anticipate the prospect of creators seeking merely to satisfy audience taste, when it is precisely that endeavor, taken to an extreme, which produces safe, formulaic, repetitive fare that many viewers cite as pabulum that only deserves to be accessed via piracy. In other words, the authors’ predicate for proposing a shift in copyright theory is to embrace more corporatization of creative works; and this directly contradicts their fellow copyright skeptics, who claim that a central flaw with copyright’s status quo is that it overly favors corporate rightholders at the expense of individual authors.  

As is often seems true of these papers, the authors present “data-driven authorship” as yet another rationale to address a problem that nobody has actually proven to be a problem—namely the scope of copyright protection as it stands. In concert with many in academia, Raustiala and Sprigman proceed from a commonly-held (though not universally accepted) assumption that copyright can only be seen as a necessary evil—a devil’s bargain society makes with authors to extract work from them. While no one will deny that a key rationale for copyright is incentive, I maintain that the view espoused by this and other papers—stated as though it were axiomatic—is ahistorical, cynical, and a needlessly mercenary way to view the relationship between creators and their audiences.  

To support their thesis, Raustiala and Sprigman devote considerable attention to—indeed almost fawn over—the apparent adaptation to online piracy by the “porn industry,” asserting this narrative as one that ought to be instructive to mainstream (non-porn) authors of works.  They write …

“We use the adult entertainment industry as our primary lens to examine the second digital disruption, but as we will show, the techniques so effectively deployed there are increasingly apparent in the music, film, and television industries as well.”

To be sure, anybody who can cite the innovation called “dildonics” and the 1841 copyright skepticism of Thomas Macaulay in the same paper deserves an AttaBoy; but just as so many modern skeptics tend to ignore the broader context of Macaulay’s oft-quoted speech,** the authors of this paper gloss over significant differences between pornography and just about every other form of copyrightable expression. They further commit the fallacy of referring to the successful adaptation of the “porn industry” while minimizing the fact that said adaptation came at the cost of consolidation whereby one Big Data firm called MindGeek now controls nearly the entire online market.  So, if there really is a lesson non-porn creators can take from porn creators, it might be Don’t Let This Happen to You.  

The Porn Narrative is a Cautionary Tale to Creative Authors

Raustiala and Sprigman explain that pornography adapted to piracy—rather than attempt to litigate or effect policy changes—in part because of MindGeek’s ability to leverage massive amounts of data about viewer behaviors.  The paper then compares the MindGeek model to the ways in which Netflix currently uses its data about viewer habits and then implies that future non-porn motion pictures, episodic series, and all other media can learn the art of “data-driven authorship” from their porn-making cousins.

Of course, the MindGeek narrative in this paper simply expands on a familiar theme in which access to the content itself is understood to be a loss leader that can attract tens of millions of viewers, a percentage of which can be relied upon to spend money in other ways. For instance, while most visitors to porn sites will only ever view a handful of clips at a time for free, a valuable number of visitors will be amenable to spending money on things like “Camming” (private web-cam interactions),  “Customs”  (custom-made pornographic scenes), or sex-related merchandise (you get the idea).  

Although the paper’s authors acknowledge that pornography is fundamentally “utilitarian,” they do not seriously consider how this fact alone generally disqualifies the industry from having much to teach authors of non-pornographic works. Without wading into a discussion about the line separating erotic art from pornography, suffice to say, most porn—and particularly the porn to which the paper refers—has nothing in common with most creative expression, either for the creators or the audiences.  The paper states …

“MindGeek is at the forefront of this new approach.  The fine-grained data that MindGeek collects from its billions of views each month puts it in a position to analyze and then leverage consumers’ revealed preferences regarding a wide range of adult content.  We already see MindGeek using what it learns about viewing patterns to better categorize and organize content.  Most strikingly, MindGeek increasingly uses its data to shape the content that its production companies create.”  

Sprigman and Raustiala may find these observations “striking,” but it is hardly more than obvious to understand that MindGeek is able to learn through data collection that particular tastes in porn may be trending and that these data can then inform even the producers of scenes to make quick, responsive decisions about camera angles, casting, wardrobe, scenarios, etc. in order capitalize on those trends. It is equally unremarkable to recognize that relatively short, pornographic clips can be served up like free snacks in order to entice some viewers to spend money in ways ancillary to the pornographic videos themselves.  Sex sells.  Nobody needs academic research to support that premise.

But the MindGeek “lesson” is useless to many a non-porn filmmaker, who asks 90 minutes of our attention for a story he wants to tell in his own distinctive way.  His motives for producing (and ours for watching) are exactly the opposite of the MindGeek model.  As a creator, he is not interested in satisfying audience taste—let alone reenacting some fleeting, primordial fantasy. Instead, it is essential that, to a great extent, the author doesn’t give a damn what the audience wants to see.  And it is only when a creator surprises us the most, that we bestow upon him the compliment artist.  

On the other hand, as Raustiala and Sprigman correctly observe, major producers of non-pornographic works are not only leveraging Big Data in their business models, but they cite testimony from TimeWarner’s proposed merger with AT&T, which asserts that without access to data, the content producer will be at a disadvantage relative to companies like Netflix and Amazon.  The paper’s authors are not wrong to describe the use of data in the market, but I suspect they may be over-emphasizing the usefulness of that data and, more importantly, jumping the gun by presuming that the power of said data to inoculate against risk is a sound rationale for limiting the role of copyright.

In Part II of this post, I’ll respond to this proposed revision of copyright as a rational byproduct of the presumed value of “data-driven authorship.”

* “Panoptian” comes from the Greek myth of Argus of Panoptes. See Part II for further comment.

** For instance, Macaulay’s speech was in the context of a five-year debate that he ultimately lost; his dire predictions about copyright terms did not come to pass; and he was advocating the views of the publishing industry over those of authors. 

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HJC Members Call Out Big Tech Shenanigans in CASE Act Hearing

For about an hour yesterday, I took a break from the drama unfolding in the Senate Judiciary Committee to tune into the House Judiciary Committee hearing on the CASE Act (H.R. 3945), which would create a Copyright Claims Board at the Copyright Office designed to adjudicate small copyright claims. It was almost hard to believe these two hearings were happening in the same country, let alone the same building. In particular, there was an undeniably palliative effect in watching Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA) articulate a bipartisan commitment to protect America’s independent and middle-class authors of creative works.

Specifically, both Congressmen were very pointed in key responses to the two witnesses appearing on behalf of the tech-industry, whose opposition to CASE has, thus far, resulted in a handful of frankly disappointing amendments to the current discussion draft of the bill. Matthew Schruers* of Computer and Communications Industry Association (CCIA) and Jonathan Berroya, General Counsel at Internet Association (IA) were yesterday’s faces of Big Tech’s opposition to the bill, which relies principally on the assertion that the system will be vulnerable to abuse by copyright trolls. (Trolls are the ambulance chasers of IP law, who use false or flimsy claims to frighten alleged infringers into settling claims, although the scope of the “troll problem” tends to be exaggerated by a range of parties with an interest in criticizing copyright.)

Let’s not equivocate. The alleged concerns about CASE creating a new forum for copyright trolls is demonstrably absurd and is disingenuously asserted by internet giants , who truly have no skin in this particular game. The Copyright Claims Board, as proposed, entails far too many safeguards on its use to be an attractive venue for a would-be troll.

For instance, there is a provision which denies access to the CCB to any party who consistently brings false or flimsy claims—a limitation that does not exist in an Article III court system. Further, as mentioned in past posts, because the CCB is expert in, and focused on, copyright law only, it will be a much harder forum in which to present a weak or false claim than a federal court. And finally, a respondent (alleged infringer) can opt out of the CCB upon written notice of a claim.

But unsatisfied with all those safeguards, the lobbying efforts of IA and CCIA have also resulted in a provision to limit the number of valid claims that a rights holder may bring to the CCB to ten per year. As evidenced by witness Jenna Close, representing photographers and visual artists, this “anti-troll” concession is arbitrary in light of the fact that she noted 18 infringing uses of her work by commercial entities in yesterday’s testimony. That the Internet Association, representing Facebook, Google, eBay, and other billion-dollar corporations, should even have a say in limiting Ms. Close’s remedy options to roughly half the infringements of her work is an aberration of reason and justice. But as she said to the committee, “Ten is better than nothing.”

Despite the Politics, Key Members Are Clear

Unfortunately, the political reality is that the CASE Act is not going to move out of committee unless these industry organizations either endorse the bill or amend their position to one of neutrality. That they have anything to say at all is frankly galling given that the tech and internet companies are shielded in several ways (not the least being their size) from being targets of small infringement claims, but as usual, these industry representatives claim to be defending the interests of their users (meaning all of us), who may be unfairly targeted by presumptive abusers of the CCB. It was in response to this general posture that Representatives Collins and Jeffries homed in. Anyone who quarrels with Silicon Valley on policy is very familiar with the list of hypothetical disasters that will befall the internet (and all mankind) if we enforce copyrights, or any rights, in the digital age. Doug Collins was pellucid on this matter …

“From the side that says it’s maybe not needed, I hear a lot of hypotheticals. In this room today, there is not a hypothetical. There’s Miss Close.”

Then, alluding to the creators in the gallery who appeared in support of CASE …

“These are not hypotheticals. These are real people who have real issues with real infringement on their work. One of the things that’s great in DC is that we’ll always find the hypothetical that says you can’t. I’m about finding hypotheticals that say those who create mean something and those who create have value and have infinite worth. If we ever get to the time when the hypothetical wins out over the creator, then the creator is dead. We’re looking for solutions. If a hypothetical gets us to a solution, wonderful hypothetical. If a hypothetical is just a roadblock in the way, it’s time for a bulldozer.”

Even more pointedly, Hakeem Jeffries, lead sponsor of the bill and the next Member to question the witnesses, asked Matt Schruers whether the concessions already made in CASE were not sufficient to allay his constituents’ concerns about hypothetical trolling and abuse. Specifically, Jeffries refers to a concession (one I believe cedes too much) that allows a party to opt out of CCB tribunals with a single, blanket statement—meaning no corporation with even mediocre legal counsel will ever be party to one of these adjudications.

To this, Schruers conceded that corporate entities would be well shielded but then tried to raise the specter of the hypothetical internet user being defenseless because he would not know to avail himself of this opt out provision (i.e. the bill isn’t toothless enough). In response to the premise that the CCIA represents users at all, Jeffries stated …

“I get all of this due process language, and it sounds flowery, and it’s beautiful. But with respect to many of the companies that you represent, you have these contracts of adhesion [TOS] where the same internet users that you say you’re here before the committee to defend are waiving their rights to participate in the Article III federal court system. So, it becomes a little difficult I think for many of us to take some of these concerns as seriously as they’re being projected.”

Amen. Copyright advocates have seen this tactic employed repeatedly: the internet giants hide behind the interests of users when it suits their policy agenda, but their own legal structures and terms of service make clear that users have almost no legal remedies if their complaint is with a platform itself. Whether the subject is copyright or any other policy issue, Rep. Jeffries deserves kudos for hitting this nail squarely on the head. It may be true that we all use the internet, but that will never mean that our interests are identical to those of Google, Facebook, Twitter, et al.

The CASE Act addresses a longstanding problem for independent creators who deserve to enforce their rights in relatively low-level (but meaningful) infringement claims that are simply too small to justify the cost of federal litigation. My takeaway from yesterday’s hearing was that Committee members largely understand the issue, want to support this large population of independent creators, and hope to pass the bill before November. Even Representative Zoe Lofgren (D-CA), who tends to be consistently critical of copyright, endorsed the need for CASE.  Near the end of the hearing, Chairman Issa asked Schruers and Berroya, “What will get you to yes?” I understand that’s a political reality, but it shouldn’t be. The IA and the CCIA do not honestly represent anyone—either creators or internet users—who have any stake in this bill. They’re just inconveniently too powerful to ignore.

Related…

Some may note that organizations like EFF, who claim to speak for users, were not present for the hearing; but on that subject, readers who are unsure about the extent to which these organizations tend to speak for industry will want to watch Frank v. Gaos, recently granted cert at the Supreme Court.  It relates directly to the issue of internet industry (and other industry) accountability, and there will be more to say about this case in future posts.

SCOTUS will hear arguments on Halloween Day, but in sum, the suit challenges the regime whereby a corporate entity (or industry) loses a legal battle to the extent that they pay a settlement in a class action, but then the settlement money winds up funding organizations that advocate policy favorable to the corporation or industry at issue. With regard to internet policy, these cy pres awards have funded the Electronic Frontier Foundation, think tanks, and academic works that just happen to advocate policy favorable to the internet industry. More to follow very soon.  (Post added on 10/30.)

*This is the same Matthew Schruers who pitched the brilliant concept that it’s okay to steal copyrighted content because the money saved will be spent elsewhere in the economy.