Category: Copyright

Copyright in Motion As Midterms Approach

While most attention will be understandably focused this week on the Senate Judiciary and the confirmation (or not) of Brett Kavanaugh, there is actually quite a bit of copyright law activity of note as the midterms approach.

Register of Copyrights Selection and Accountability Act Hearings Scheduled

Originally introduced in the House in March 2017 as H.R. 1695, this bill proposes a reorganization, favored by many copyright experts, to make the Copyright Office independent of the Library of Congress and to make the Register of Copyrights an executive appointee rather than a hired member of the Librarian’s staff. The bill passed the House in May of 2017 with a vote of 378-48 but then stalled in the Senate Rules Committee (as S. 1010). On Wednesday of this week, that committee will hold hearings on this legislation.

As described in a few posts, the formation of the USCO within the LOC dates back to 1897, when Congress could hardly have envisioned the copyright industries as we know them today; and both scholars and legal professionals have long viewed the current organizational structure as antiquated. Despite complaints by the usual assortment of critics—and they are likely to resurface after this week’s hearing—the Librarian and Register have always performed different functions predicated on very different areas of expertise; and the intervening 120 years has only increased the divergent roles of the two departments. This is a change long in development and long overdue.

CASE Act Hearings Scheduled

Following that hearing, on Thursday, the House Judiciary Committee will hold hearings on the proposed CASE Act, which would create a small claim copyright tribunal within the Copyright Office. The purpose of CASE is to provide a remedy for copyright disputes that do not easily justify the cost of federal litigation. For instance, the proposal is backed very strongly by professional photographers, whose works are infringed with a high rate of frequency online, even by business entities exploiting images for commercial purposes.

True to form, the copyright critics have predicted a litany of negative consequences that are simply not possible within the scope of the proposed statute. For instance, as a purely voluntary option, the new tribunal cannot become the “clearing house for copyright trolls” critics like EFF have alleged. Moreover, the USCO board will be experts in copyright law only, which is not true of federal judges, and there is no reason to believe this remedy would not prove to be as beneficial to defendants as to claimants. Still, the committee will be reviewing the latest version of the bill, which represents ongoing discussion among proponents and good-faith critics of the legislation.

The VidAngel Bill?

In August of 2017, the Ninth Circuit Court of Appeals shot down all the legal defenses, previously shot down by a California District Court, as presented by the movie filtering service called VidAngel. For a detailed background, see posts here and here; but briefly, VidAngel was sued by major motion picture studios for copyright infringement based on the manner in which the company was providing streamed access to movies while filtering out segments containing language, sexual content, or other material that VidAngel’s subscribers find objectionable, primarily on religious grounds.

Among its failed defenses, VidAngel asserted an unsound interpretation of the Family Movie Act (2005), which permits private use of consumer devices to make brief segments of motion pictures imperceptible during home viewing. Having lost its court fight with that statute (along with key statutes in the copyright law), VidAngel has apparently been lobbying Members of Congress, mainly its CEO’s hometown Utah Representatives, to propose an amendment (H.R. 6816) to the Family Movie Act that would theoretically enable VidAngel to perform, as a VOD service, the same task consumers are allowed to perform by means of devices at home.

Setting aside my own opinion of any consumer’s desire to edit out segments of movies on moral grounds, the legislators in this case may believe they’re simply updating the FMA for the digital-streaming market, but if so, they have failed to consider the staggeringly disruptive implications their bill would have on copyright law, contracts, and licensing agreements.  As a simple example, amending the FMA in this manner does not obligate the studios to license their films to VidAngel, which had been making public performances of these works without licenses.  And it gets more complicated from there — all for the sake of one company to profit from an activity that other companies have enabled consumers to conduct legally for 13 years.  I think this bill is likely a dead-issue, and with it VidAngel; but it will be something to watch if that’s not the case.

Doctorow & EFF Declare Perpetual War On DRM

On a slightly related note (because VidAngel violated Section 1201 of the DMCA), Cory Doctorow, in his role as EFFer, urged the organization’s followers to keep Sisyphean-like faith in “Our Apollo 1201 Project [which] aims to kill all the DRM in the world inside of a decade ….” Digital Rights Management tools, designed to protect copyrighted software from unlicensed access, copying, or tampering, has been portrayed by critics like Doctorow as a means to entrench corporate control of various markets more than as a means to protect authors of creative works.

It’s not that DRM is without such challenges or does not require constant reassessment, but Doctorow and company generally lack all deference to nuance, or integrity, when discussing the issues. For instance, they make no mention of the fact that, without DRM, many of the convenient ways in which we access works in the digital age (e.g. eReaders) would not exist. Moreover, as elaborated upon in this post, the EFF’s assault on the constitutionality of Section 1201 of the DMCA—the section prohibiting circumvention of DRM—conveys more ideological hatred than an honest portrayal of, for instance, the USCO’s position on exceptions to 1201’s prohibitions.

As noted in that post, rather than engage in the USCO’s call for reasonable changes to permanent exceptions etc., the EFF is instead hell-bent on the (dare I say perpetual-funding opportunity?) more dubious mission to eradicate the law. In this regard, it is notable that Doctorow employs the metaphor of ants steadily, if blindly, making slow progress up a hill. The presumptive “ants” (see Donors) Doctorow is addressing might want to look up the word Myrmidon.

Music Modernization Act Passes Senate by Unanimous Consent

Well, at least bipartisanship still exists when it comes to protecting America’s music creators.  Late yesterday, the omnibus bill known as the Music Modernization Act passed the Senate by unanimous consent.  On Monday, the chamber initiated a hotline process, which may be implemented when a bill is presumed to be uncontroversial.  Once triggered, Senators have 24 hours to raise any objections—one objection will kick the bill back into the normal debate/vote process—after which the bill will pass unanimously.  The MMA, to be renamed the Orrin G. Hatch Music Modernization Act in honor of the Senator’s retirement and the fact that he is a songwriter, ultimately earned 81 sponsors.

The soul of the MMA is a new royalty system designed to fairly compensate songwriters and composers in the digital marketplace.  This aspect of the bill has been hailed by multiple stakeholders in both the music and digital services market as a landmark achievement in private-sector and legislative compromise.

For too long, this class of creators was subject to a royalty system initially designed in the age of player pianos, so it has hardly reflected the market realities of the digital age.  The MMA establishes a new digital licensing collective, overseen by both songwriters and digital platform owners; it creates a new blanket mechanical license to enable easier and more complete licensing; and it reshapes the manner in which rates are set in order to better conform to fair-market prices.

ASCAP Chairman of the Board, songwriter Paul Williams stated, “”Today, we made history by joining together and working for Senate passage of the Music Modernization Act, bringing us one step closer to a music licensing framework that reflects how people listen to music today.”

This digital-royalty spine of the MMA met with relatively little debate among nearly stakeholders and passed the Senate in the same form* in which it passed the House in April with a vote of 415-0.  Likewise, the AMP Act segment of the MMA, which compensates engineers, producers, and sound mixers passed without objection or modification.  The only part of the omnibus bill that did invite debate—not to mention some outlandish claims by the anti-copyright crowd—was the CLASSICS Act, which is designed to compensate owners of sound-recordings for public performance via non-interactive streaming services like Sirius XM.

Amended CLASSICS Passes and Returns to the House

It was no surprise of course that Sirius XM opposed the CLASSICS Act.  They didn’t want to pay royalties to pre-1972 artists if they could avoid it.  But some of the usual suspects in the anti-copyright crowd also sought to oppose the bill on ideological grounds, calling it a massive term extension, a land-grab by the labels, and even a “reversal of copyright doctrine.”  As usual, the librarians and archivists jumped on this bandwagon (I still don’t get these folks), claiming that, if passed, CLASSICS would create new uncertainty for their institutions.

While most of these objections were a bit overwrought—and some were just plain made up—in response to so narrowly-written a bill, CLASSICS does unquestionably highlight the hodgepodge body of law (i.e. common law and federal statute) theoretically governing sound recordings made before 1972.  Nobody disputes that it’s a mess, but some of the opponents to CLASSICS argued that the law should be overhauled entirely (a monumental task) rather than ameliorate one small aspect of the law in order to get these musical artists paid by Sirius et al right now (a far more moderate task).  Nevertheless, in response to some of the concerns about duration of terms and the interests of libraries, the Senate made a few key modifications to CLASSICS that are expected to be adopted by the House for final congressional passage of the law.

The Senate version of CLASSICS creates a specific regime for use of these sound recordings by non-commercial entities, and it establishes a “rolling basis” duration of protection of 95 years after publication.  The House version had left the status quo intact, whereby all pre-1972 sound recordings are protected by state law until 2067.  These amendments look like reasonable concessions in keeping with the spirit and intent of CLASSICS; and it seems unlikely that any objections will be raised to alter the course of the MMA toward full passage. (This does not mean, of course, that the anti-copyright crowd won’t complain. Some already have.)

Not only should the many stakeholders who worked for years on this legislation be proud of what they have accomplished—let alone in such a schismatic political climate—but the MMA is entirely consistent with the history of copyright amendment in the United States.  While anti-copyright academics and tech-industry pundits continue to insist that copyright law must be weakened in order to foster innovation and serve the public interest, the historical narrative has been quite different.  Rather than bluntly weakening the law, it has always been the case that copyright is rewritten to fit the contours of new markets—responding to but not at all stifling new technologies.

UPDATE:  Having seen the latest language of the bill, there are a few small changes, including a five-year moratorium on rate increases.  Perhaps a more detailed in a future post.

Internet Activists Clinging to Old Models in EU Copyright Fight

Last week was a rare, silent moment on this blog because I was in the middle of a rather arduous house move.  Consequently, I may be more than unusually prickly on the subject of holding onto old things, but it seems the last several days yielded a lot of internet activism aimed against the EU Copyright Directives, all of which seems to imply an unfathomable vote for the status quo.

Tomorrow (9/12), the European Parliament will vote on proposed copyright reforms as part of its Digital Single Market initiative. As happens with all proposals to improve the efficacy of copyright online, the familiar cadre of digital activists unleashed their weary-looking rhetorical hounds to frighten people into believing that the internet as we know it teeters at the edge of yet another existential cliff. That this strategy was effective five or six years ago was not terribly surprising, but the fact that there is no deviation from the digital activist’s hyperbolic narrative today is curious in light of the fact that more than a few of us in democratic nations have clued into a hard reality: the internet as we know it SUCKS.

I know. I’ve said it over and over. But seriously. The internet has hardly done democratic principles any favors. So why is anyone hell-bent on preserving the internet as-is for the sake of democratic principles? Or have I overlooked some nuance woven into the crazy-quilt of dysfunctional populism lately savaging common sense and decency throughout the Western world? As Stefan Herwig states in a recent guest post on The Trichordist …

“We urgently need a new Internet narrative that recognizes that access to information is only apparently free and socially useful while algorithms pre-sort our information horizon, equating popularity with relevance. The master algorithm popularity = relevance is deeply inscribed in the infrastructural DNA of the internet, steadily reprogramming our society. With the infiltration of such information services, that are targeted towards steadily confirming our opinions, serving our interests and networking us predominantly with like-minded people, we constantly lessen our societal abilities to differentiate and hold constructive discourses and heat up the growing disenchantment with politics and media.”

Thankfully, serious people are now willing to have a conversation about (rather than fawn over) the major internet platforms and their role in fostering so much political toxicity. Evan Osnos has published a new article for The New Yorker called “Ghost In The Machine: Can Mark Zuckerberg Fix Facebook Before It Breaks Democracy?” In it, he writes, “In Sri Lanka, after a Buddhist mob attacked Muslims this spring over a false rumor, a Presidential adviser told the Times, ‘The germs are ours, but Facebook is the wind.’”

That seems like an appropriate, tone-setting metaphor for a badly-needed fresh conversation about the responsibilities of internet platforms, who have long enjoyed a presumption of “neutrality” bolstered by legal frameworks that absolve ISPs of liability. Because, of course, these platforms are not the unmanageable wind; they are corporations directed by people to make profitable decisions.

As alluded to in this older post, if we’re ever going to find the right balance for internet governance overall, then copyright enforcement is a damn good place to start—particularly because mass copyright infringement was so intrinsic to the development of the “web as we know it.” Y’know, the one that sucks.

The irony, of course, is that with regard to the copyright proposals, the activists declaring that the internet needs saving (again) are not telling the truth about the actual proposals. And, well, there’s really no point in any of us fretting over predicted “censorship” if we’re going to believe opinion-makers who disseminate exaggerations and lies. The implication that, for instance, Article 13 of the EU proposal will end memes and remixes and ensure that no startup will enter the digital market should register as truly absurd as they sound. I mean without even looking into the details—because nobody does that anymore—do those claims even ring true to anyone willing to take a brief skeptical pause?

What’s being proposed in the EU is that the platforms, particularly major platforms, that host user-uploaded content might have to—get this—pay license fees to producers of that content and, further, that they might have to enable the content producers to have more control over how their works are exploited. Control over the use of works and financial compensation are two rather basic functions of copyright—principles that most people actually still support. And whether the EU gets these measures exactly right or not—because we are still years away from actual implementation of said proposals—there is something fundamentally wrong with people who seek to hijack the dialogue by screaming CENSORSHIP at the mere suggestion that perhaps the status quo isn’t working for everyone. Because it isn’t.

Finally, I have to agree with author John Degen, who posted his thoughts today on Medium after attempting dialogue with one notable critic on Twitter. “What struck me about the response yesterday was not the volume or the vehemence,” writes Degen, “It was the abject negativity and pessimism that was being expressed about the future of the internet and the possibility of innovation away from the state of things as they are.”

What that reminds me of is the “debate” over climate change. Whenever the answer came back that we can never mitigate carbon output without destroying the economy, I always considered this to be a needlessly fatalistic response. I mean all of human progress hinges on the attitude that we can’t do that thing…yet.

So, I agree with Degen that we can and should imagine an internet marketplace that treats artists and creators of works fairly, if for no other reason than everyone else in the world is now too dependent upon the network to simply leave it to ISPs to look out for our interests as they see fit. The EU Copyright Directive is a baby step toward platform responsibility; and those who oppose it so vehemently at this stage of the process clearly cannot fathom the internet ever changing into anything other than what it is right now. They are clinging to old models.

UPDATE:  The proposals passed this morning with a vote of 438 to 226 and 39 abstentions.  Hardly the end of the story.  Stay tuned.