Category: Copyright

Mousetrap: The Copyright Deep Story Behind Today’s Lies

It seems that after Public Knowledge came out, guns blazing, and just plain making things up about copyright extensions in the new round of NAFTA negotiations, they and their supporters tried to tiptoe these statements back on Twitter by blaming the USTR for its lack of clarity. While I have little doubt that such vagueness is present—certainly if the USTR’s own press release is any indication—this does not excuse manufacturing a story and blasting it all over the internet, not least because a moment’s thought was all PK needed to conclude that what they were about to say probably wasn’t true. But once these things are on the internet and spread, well…what was never true in the morning will be true in many minds by five o’clock.

There are only two explanations for someone perpetrating an outright lie: ignorance or corruption. Either one is innocently misinformed and, therefore, unqualified to speak on the given subject; or one is purposely spreading falsehoods and, therefore, undeserving of anyone’s trust. And I suppose we have to acknowledge a hybrid of the two whereby one becomes so entrenched in an ideology (e.g. an anti-copyright agenda) that one remains willfully ignorant in order to feel less corrupt while spreading lies.

And that little sermon brings us to the tweet posted by Public Knowledge’s Senior Vice President Harold Feld, originally written to draw reader attention to the organization’s memo about the invented copyright extension in new NAFTA …

 

This is a fine example of a “deep story” as described by Alice Marwick in her paper about why we share fake news. For some Americans, their deep story is that immigrants are destroying the nation; for others, it’s a vast Jewish conspiracy; for many, it’s that vaccines cause autism; and for the anti-copyright zealot, it’s that Mickey Mouse has long been the primary (if not the sole) reason for term extensions in American copyright law. And because this is a deep story with roots in millions of minds, I’m not calling out Feld personally so much as by example; only he knows whether his tweet is more a manifestation of ignorance or corruption.

So, once again, I feel compelled to clarify a salient point about copyright history; and I apologize if this gets a little technical and arcane, but here it goes: Mickey Mouse had sweet fuck all to do with the current U.S. copyright term.

That’s not an opinion or a counter-narrative or an alternative fact. The Mouse story, while plausible and attractive to many, just ain’t so; and no self-respecting copyright scholar would allow it to be repeated as “history” because they know that the development of copyright term length dates back at least 160 years before Mickey first appeared on screen. Here’s a synopsis …

In Millar v. Taylor (1769), the English court held that a perpetual copyright existed at common law until statutory copyright—the Statute of Anne ratified in 1710—placed a limit (albeit a necessary one) on the duration of the term. By the late 1830s, France already had a posthumous term based on life of the author plus ten years; and England began debating a similar regime predicated on a bill that would have extended the term to life of the author plus 60 years. A version of that bill passed in 1842 with a term of life of the author plus seven years, or 42 years, whichever was the longer.

With the Berne Convention treaty of 1886, England, France, and other signatory nations much smaller than the U.S. continued to extend terms, eventually mandating life of the author plus 50 in 1948. Meanwhile, throughout the 19th century, the United States dragged its feet for about sixty years in ratifying any kind of international copyright law (doing so in 1891) and only codified a life-of-the-author-plus-50 regime in the 1976 Copyright Act—nearly 70 years after those terms were first adopted on a voluntary basis in Berne.

When the U.S. finally joined Berne in 1989 (103 years after its origination), this was just in time to play catch-up once again as Europe was about to coalesce into the EU in 1992. The European Parliament settled on a term of life of the author plus 70 years, thus providing grounds for the Copyright Term Extension Act of 1998, which amended the 1976 law to conform to the terms adopted by the EU and other key trading nations.

That’s a digest version of term length and how it got that way, but suffice to say that Mickey Mouse’s debut performance in Steamboat Willie in 1928 is not even a footnote in the evolution of widely-adopted, international copyright terms to which the U.S. eventually had to adhere if it wanted to join various trade agreements with some of its most important partners.

People are entitled to argue that copyright terms are too long, which is a perfectly valid topic for discussion and debate. But they are not entitled—least of all under the banner of a public-serving organization—to perpetuate conspiratorial nonsense in order to score symbolic social-media “wins” rather than provide substantive contributions. We have enough of the former in our current politics, and if that’s all the folks at Public Knowledge can bring to the table, then they don’t deserve a seat—either because they are unqualified or because they are dishonest.

Also see Brief History of US Copyright Terms at Copyhype.

Public Knowledge Twaddles Re. NAFTA Negotiations

Back in May, I reported that Cory Doctorow, “writing” for Boing Boing, literally invented a legislative process out of whole cloth in order to portray the CLASSICS Act as an 11th-hour bill written by Senator Orin Hatch. (Not even close.) But not wanting to be outdone in the dissemination of drivel, the group Public Knowledge bested Doctorow yesterday with a post headlined Public Knowledge Responds to President Trump’s Outrageous Copyright Giveaway, in which they claim that the tentatively renegotiated NAFTA with Mexico would add another five years to the U.S. copyright term, resulting in life of the author plus 75 years.

Most egregiously, PK cites itself as a source (i.e. its own Global Policy director Gus Rossi) to sate, “The inclusion of a copyright term extension in the trade agreement announced today is a staggeringly brazen attempt by the entertainment industries to launder unpopular policies through international agreements.”

That is a brazenly false statement. Not only is there no evidence to support the claim that the “entertainment industries” are pulling strings in this NAFTA reneg; if indeed they were, they’re doing a lousy job of obtaining a copyright term extension because the USTR has not agreed to anything of the kind. Near as anyone can tell, this Public Knowledge outburst, claiming that NAFTA 2.0 would add five years to the copyright term is the following hobbledehoy sentence from a USTR press release:

• Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information. 

Albeit a woefully vague statement, it does not say anything about “life of the author,” can best be interpreted to imply a flat term of 75 years for sound recordings, and would, therefore, not be an extension of anything in U.S. law. In fact, 75 years would comport to Mexico’s term for sound recordings (and other works), which is 20 years shorter than the U.S. term for works without authors (e.g. works made for hire).

With regard to Rossi’s allegation of “laundering policies” through Fair Trade Agreements (FTAs), this is a false representation of the actual procedure. The USTR does not have the authority to “sneak” a revision of any U.S. statute by means of an FTA. Ratifying trade agreements requires a legislative process in order to ensure that their provisions either conform to existing law or that existing law may be appropriately amended through debate and public disclosure. In other words, Public Knowledge has plenty of time to get its facts straight before spinning tales, let alone noisy ones that seek to leverage Trump criticism as a means to vilify copyright law.

An organization cannot call itself a public-service while lying to the public—perhaps least of all when the word “knowledge” is part of that organization’s name. We are already swimming in a sea of bad information, barfed up in glib, thoughtless tweets—I propose to call this twaddling from now on—and it is no less destructive to the Republic when so-called progressive organizations dissemble than when any other party does it. Public Knowledge’s track record in this regard leaves much to be desired.

BMG Settles With Cox as Petitioner Asks Supreme Court to Interpret DMCA

On Saturday, Digital Music News reported that BMG Rights Management has reached a “substantial” settlement agreement with Cox Communications, thus ending a four-year legal battle that was teed up for a retrial in district court before the end of this month. In December of 2105, a jury awarded $25 million plus $8 million in fees to BMG, finding Cox guilty of contributory copyright infringement for the ISP’s role in the infringing activities of its customers.

For detailed discussion of this case, see posts here, here, and here.

Cox appealed to the 4th Circuit where most of its key defenses were rejected by the court with the exception of one procedural technicality—the instruction to the jury regarding the standard for contributory infringement. On that basis, the case was remanded for retrial, and in a new brief, Cox requested that copyright infringement not be referred to as “theft” or “stealing” during opening statements. Judge Liam O’Grady denied the request, writing, “Specifically, the Court does not find it appropriate to bar BMG from referring to copyright infringement as stealing, theft, or some other related term, as such language is not unduly prejudicial to Cox.” That news came on August 15th, nine days before the announced settlement agreement.

This case has been followed closely by both copyright advocates and digital rights groups as a potential landmark for online service providers with regard to their rights and responsibilities under the terms of the DMCA. Although Digital Music News is correct to report that a settlement does not render the force of legal precedent that a final decision in court would have, the fact-pattern and judicial opinions in BMG v. Cox will likely be instructive in future, similar litigation. Suffice to say, the general assumption that ISPs enjoy magical, blanket immunity vis-a-vis copyright infringement took a substantial beating at every phase of this case.

Evidence revealed that, by willfully avoiding any denial of service to repeat infringers, Cox vitiated its safe harbor under the DMCA. Its appeals to the “Sony standard” were rejected. Its attempts to redefine the term “repeat infringer” were rejected. Its claims to having no knowledge of infringing activity were rejected. And amici like EFF filing briefs in the case, asserting that denial of internet service for any reason was equivalent to cutting off someone’s access to water, were not persuasive due to the fact that account termination for repeat copyright infringement—if the ISP wants to be shielded from liability—is mandated by statute.

Most acutely, the facts, allegations, and defenses already presented and opined upon in this case do not bode well for Cox as it now faces a $1.5 billion lawsuit by several of the major record labels, including Sony, UMG, and Warner Music Group for “knowingly profiting from the infringing activity of its users.” It will be very interesting to see whether Cox even tries to fight this larger suit in court after the much smaller case has demonstrated how the narrative is likely to play out—and in the same circuit.

DMCA to SCOTUS?

In related DMCA news, pornographic producer Ventura Content has filed a petition for cert at the Supreme Court after the Ninth Circuit upheld a summary judgment in favor of the website Motherless, despite evidence that the site, like Cox, allegedly engaged in conduct that should have nullified the safe harbor shield. At the heart of the petition is Ventura’s assertion is that the Ninth Circuit in particular fosters “DMCA disarray” among various court interpretations of the statutes. “The result of the DMCA disarray is that abject bootlegging in the offline, brick-and-mortar world remains unlawful, but the same conduct online by and OSP-turned-publisher garners absolute summary judgment immunity,” the petition states.

Ventura alleges, for instance, that a split exists between the Ninth and other circuits with specific regard to the OSP’s requirement to maintain a repeat infringer policy, as was dispositive in Cox. The brief states …

“At root, the Second and Seventh Circuits have disallowed formulaic policies that allow OSPs to run brazen infringement machines and to purposefully engage in conduct to avoid knowledge—that is, behave like ostriches; in stark contrast, the Ninth Circuit in Ventura permitted a brazen infringement machine that is more actively involved in curating infringing content than even the business model this Court outright—and unanimously!—condemned in Grokster.”

Ventura argues that, after 20 years of “court gestation of online copyright standards,” it is time for the Supreme Court to provide guidance with a consistent reading of the statutes and to mitigate the unintended effect of the DMCA, which has too-often provided automatic immunity to online enterprises—an immunity that would never be afforded to organizations or individuals operating in the real world. While it is always a safe bet the Supreme Court will not grant cert, Ventura’s petition summarizes the frustration rightholders of every size have felt, watching some of the largest platforms in the world grow rich on the infringement of their works, all shielded by elastic interpretations of the DMCA.