Category: Copyright

The CLASSICS Act is Not a Reversal of Copyright Doctrine

As the world mourns the passing of Aretha Franklin, we need no further discussion about the value of recording artists. The anthem of a generation, Franklin’s first hit, “Respect” was not written by her but by Otis Redding, who first recorded the song in 1965. But in 1967, Aretha made that song what it is—“owned it” as we say today—along with the work of producer Jerry Wexler, engineer Tom Dowd, and the studio musicians at Muscle Shoals Sound Studios, including King Curtis, who gave us that instantly-recognizable saxophone solo, and who was murdered in 1971.

We also need no further evidence that the somewhat arbitrary line in copyright law, which places pre-1972 sound recordings in a class separate from those made after February of that year, has little to do with the timelessness of many recorded songs. Who knows how many times Aretha’s records will be played over the coming decades via Sirius XM or Pandora or other non-interactive digital services, but is it truly unreasonable that these corporations should pay a license fee for that privilege? Is it wrong, for instance, that the heirs of engineer Tom Dowd, who passed away in 2002, receive some fraction of a royalty for his contributions to the sounds of Franklin, Coltrane, Mingus, Clapton, Charles, Rod Stewart, et al?

Some critics of the CLASSICS Act seem to think it is wrong on principle—that CLASSICS creates a royalty “windfall” that these authors never expected at the time in which they made these sound recordings. This is how copyright critic and scholar Annemarie Bridy described her antagonism toward CLASSICS via Twitter a couple weeks ago, and it is the reason she calls the bill a reversal of copyright doctrine. “My only dog in this fight is not wanting to see © created retroactively for existing works whose very existence is proof that their creators needed no copyright incentive for their creation. I see no doctrinal justification for it,” Bridy tweeted.

And I wouldn’t pick on one critic alone for her tweets except for the fact that I’m sure Bridy represents the views of many who feel likewise, despite the fact that her position—although posing as a statement of raw principle—is doctrinally unsound, historically inaccurate, just plain mean-spirited, and kinda dangerous as a rationale.

By dangerous, I mean to say that even if CLASSICS does represent a shift in legal doctrine (and I hold that it does not), why should this alone be an argument against its adoption? Doctrinal change is the reason Bridy has advanced degrees and a job at a university instead of being restricted to “women’s work.” Doctrinal change is the reason Aretha’s “Respect” became an anthem that added the essential ingredient of boogie to the civil rights movement. What exactly is wrong with doctrinal change? It’s the only way this country has ever managed to live up to the grand promises in its founding documents.

With regard to copyright law, Bridy’s premise is that because copyright’s purpose is incentive, it is therefore superfluous to establish a new copyright protection for works for which the incentive obviously existed at the time of their authorship. In my view, this is the mean-spirited part of her argument—and it is a view shared by others—which espouses a too-mercenary approach to copyright’s purpose. It is an extension of the sentiment that copyright is a “devil’s bargain” which society makes with artists in order to get them to produce what we want out of them. (And it is a sentiment I find especially unpalatable in context to artists of color.)

But in addition to this being a rather craven way to relate to any artist, it is also historically oversimple—particularly with regard to the public performance right and pre-72 sound recordings, which are technically protected by common-law copyright due to a rather muddled definition of the word “published” in the evolution of statutory copyright. (See new post by copyright historian Zvi Rosen for more details).

Suffice to say that Bridy poses an argument which, to the casual observer looks reasonable, but which the copyright expert recognizes as glossing over the complicated legal status of pre-72 sound recordings. Nobody I know disagrees that the 1972 threshold created a copyright mess, but Bridy’s opinion does little to untie that know when she conflates constitutional copyright (i.e. its foundational purpose) with statutory and common-law copyright in the service of blasting a very narrow, and very simple, amendment to the law.

A Doctrinal Shift?

As a broad rebuttal to Bridy’s premise that CLASSICS represents a dramatic shift in principles, it is neither settled legal doctrine, nor settled history, that copyright’s sole purpose is incentive. While the debate continues as to whether intellectual property rights are indeed grounded in natural rights, there is at least enough scholarship on this subject to reject Bridy’s over-reliance on the assumption that once incentive has been achieved, copyright has fulfilled its only value. (Moreover, even the incentive calculus entails a bundle of rights, enforceable over many years, and includes more than pecuniary transactions.)

But we don’t even need to get into the more theoretical aspects of intellectual property law, or debate the extent to which Lockean principles of property and labor informed the Constitution and the earliest American statutes. Because even without all that, CLASSICS is just a tiny amendment to the Copyright Act that accomplishes more or less what every amendment to copyright law has always done: respond to changes in technology.

Nearly every update to copyright law represents an effort to identify and protect the creative expressions of authors in the context of new technologies, whether these have been new means of producing and distributing works or new means of copying and potentially infringing works. And it is also worth noting that many of the limitations to copyright’s protections have also been written in response to new technologies.

So, when Bridy declares that the recording artists working before 1972 had no expectation of this royalty stream, she’s overstating what CLASSICS does by understating the obvious—that no artist working well into the 1990s likely imagined the expansion of non-interactive, digital streaming “radio” services. Yet, somehow the artists whose recordings were made after 1972—and are, therefore, receiving royalties from these services—are not the beneficiaries of a copyright “windfall” in Bridy’s view? She’s conflating a technological change in the market with an aberration in copyright history to make a case that this amounts to a doctrinal reversal.

As discussed in this post, the sound-recording right itself has almost never played much of a role between artists and their consumers. Artists like Aretha Franklin made sound recordings, consumers bought physical copies, and the radio broadcasters successfully argued against paying royalties on the (then not unreasonable) grounds that radio play sold records.

Today, digital streaming has largely replaced sales of recordings, and relatively new players like Pandora provide a radio-like experience, including thousands of pre-72 sound recordings because, like Aretha’s classics, they still kick ass. But they also earn revenue for these services, which can no longer claim that their play promotes record sales. And all CLASSICS does is insist that a portion of the revenue earned from streaming these songs goes back to the artists, supporting artists, and supporting creators who made them. That is anything but a reversal of copyright doctrine. It’s a reaffirmation of a founding principle of copyright: R-E-S-P-E-C-T.

The EFF Taking on Big Tech?

Last week, CreativeFuture CEO Ruth Vitale wrote a post wondering whether she had stepped into a parallel universe upon reading a June 27 missive by the EFF’s Mitch Stoltz. Related to my last post on the theme of tech-utopians doing policy pirouettes in the current climate we call the “techlash,” Stoltz declared Big Tech too big, with “extraordinary power to censor and surveil.” Really? Welcome to the resistance, Mitch.

I know what Vitale means of course. The EFF has consistently endorsed policies that bolster the interests of Big Tech, namely internet companies, so Stoltz’s post does look like a staggering about-face begging for a jab in the ribs.  But taking his statement at face value, Stoltz’s main point is that the lack of competition in the internet market is dangerous, and he primarily advocates a re-invigorated approach to antitrust law as a solution. He writes…

“Restraining Internet giants’ ability to squash new competitors can help allow new services and platforms to arise, including ones that are not based on a surveillance business model. We also need new ways to measure and describe the harms of censorship and loss of privacy as a basis for antitrust analysis. Where these harms flow from abuse of monopoly power, or improper attempts to gain or maintain such power, regulators may need to consider breaking up companies as well.”

While I don’t see anything wrong with the EFF throwing its resources behind antitrust action against any big tech corporation, where it’s appropriate, I still maintain that certain web platforms are natural monopolies for which is there no public policy solution. Ain’t none of us got time for two Facebooks, so Facebook will retain its dominant position unless we all either migrate en masse to a platform we like better, or just bail on these types of platforms because we lose interest. In general, I suspect the challenges inherent to consolidation, combined with the prospects of automation, are far more complex and unprecedented than anything antitrust law was ever designed to address. But that’s another topic for another day.

Taking on Big Tech?  Really?

Meanwhile, a subsection of Stoltz’s post caught my attention because he mentioned that among the legislative reforms necessary to mitigate corporate dominance by the majors is Section 1201 of the DMCA. These are the statutes which provide for technical protections of copyrighted material and prohibit tampering with those protections for the purpose of infringing copyrighted material. But in the context of Stoltz’s new post, it has to be noted that the EFF in particular has advocated policy views on Section 1201 which, in some cases, would amount to a gift to Google—one of the aforementioned “too big” corporations Stoltz now says needs to be reined in.

For instance, in the Summer of 2016, there was a big row over the FCC’s proposal known as the “Set Top Box” Rule. If passed, it would have forced the TV cable companies to make programming and data available to third-party manufacturers of new boxes—naturally Google was in the lead among these—they would sell to consumers. The problem for TV producers was that the programming would, by federal mandate, have been made available to Google et al without any kind of licensing regime, thus bypassing the complex network of licensing among producers and distributors of TV programming that actually gets the show-makers paid.

The EFF, specifically Stoltz, declared that the proposed FCC Rule had “nothing to do with copyright” despite the fact that the proposal had a lot to with copyright, including the implication of Section 1201 because the current cable boxes we use are one form of technical protection of all those licensing deals that result in TV shows getting made.

Meanwhile, this “nothing to do with copyright” message re. the TV boxes was articulated by the EFF at about the same time that the organization filed suit against the government to have the entire statute declared unconstitutional. The EFF has a longstanding beef with 1201 (which is not without flaws), but both the EFF lawsuit and its public messaging on the subject tends to omit a considerable amount of complexity in the issue, seeking to draw readers toward the talking point that “copyright is standing in the way of…innovation, safety, consumer fairness, etc.”

That was essentially how the “Set Top Box” narrative was portrayed, even though it cannot be denied that passage of the FCC Rule would have been a major gift to Google, expanding both its market presence and its capacity to exploit what Stoltz described above as a “surveillance business model.” All while exploiting billions of dollars worth of programming without paying a cent in license fees.

Declaring 1201 Unconstitutional

In the Summer of 2016, when the EFF announced this litigation, I wrote a long post describing why I believed their case against 1201 was flawed—or at least why it was portrayed over-simply for public consumption. In general, complaints about this section of the DMCA seep into public perception as a prohibition against fixing our own cars or other devices because 1201 prohibits tampering with the tech that protects the software that runs so many products today. And then copyright in general gets a bad rap, which groups like EFF are happy to exploit in their messaging.

In fact, during that same period, PublicKnowledge launched an all-out smear campaign against the USCO, and then register Pallante, in part accusing the agency of favoring rightsholders with regard to its triennial Rulemaking process, which considers exemptions to 1201 protections for petitioners who file requests. In that case, PK actually vilified the USCO for deferring to other federal agencies that have an interest—in fact a more acute interest—in device tampering than copyright owners.

As explained my post at the time, the Register’s report revealed the opposite attitude of which it was accused—that not only was the USCO highly sympathetic to “good-faith researchers” seeking exemptions, but that the major hurdles to some of the exemptions being sought came from agencies outside the purview of the Copyright Office, including the Environmental Protection Agency, the Department of Transportation, and the Department of Justice. Suffice to say, the subject of device tampering is not simply a DMCA issue, and the DMCA is often a minor player in a bundle of regulations designed for consumer protection, environmental protection, etc. As a June 28, 2018 letter from DOJ counsel recommending some amendment to 1201 exemptions states …

“… the DMCA is not the sole nor even the primary legal protection preventing malicious tampering with such devices, or otherwise defining the contours of appropriate research. The fact that malicious tampering with certain devices or works could cause serious harm is reason to maintain legal prohibitions against such tampering, but not necessarily to try to mirror all such legal prohibitions within the DMCA’s exemptions.”

In other words copyright may be a factor with regard to device tampering—either for illegal or legal purposes—but it is quite often not the factor. To the extent DMCA may be inappropriately intertwined with other federal protections, that is a matter for Congress to consider, but that exploration seems unlikely to implicate the unconstitutionality of 1201 as a copyright protection regime. In the meantime, it is unhelpful when EFF acolytes like Cory Doctorow fire off misleading blurbs that distill the complexity of the Rulemaking process down to crazy shit like “copyright is the reason diabetics can’t get generic insulin.”

The EFF may yet demonstrate ways in which DMCA 1201 is helping to keep Big Tech too big (i.e. stifling competition), but the organization tends not to mention ways in which the statute has fostered innovation. For instance eReaders would not exist without technical protection measures that provide publishers and authors a reason to license digital versions of their books; and DRM these days is generally invisible to consumers, playing a role in the innovation called streaming. In this regard, if the EFF truly intends to take on Big Tech for anti-competitive practices, then welcome to the party; but their chronic assault on copyright law alone has only helped to foster and sustain the market dominance of some of the major companies now allegedly in their sights.

In the News: Sarah Jeong, “Fake News”, & Fair-Use

It’s another one of those weeks when there’s stuff happening faster than I can write about any one thing. So, here’s a summary of a few items of note …

Anti-Copyright Ideologue Named Tech Writer at NYT

Twitter lit up yesterday with accusations that The New York Times has named a “racist” to its editorial board, citing anti-white tweets made by technology writer Sarah Jeong, who is Asian. These complaints read like a lot of whinging nonsense, taking Jeong’s comments out of the context in which she was apparently responding (albeit ill-advisedly) to racist or sexist remarks directed at her. (God, I love Twitter for the way it brings out our better angels.)

What is notable about Jeong as the Times’s new “lead writer on technology” is that she is an anti-copyright ideologue, who has written various articles and posts in a familiar, ill-informed style akin to Cory Doctorow. In February of 2016, I wrote a fairly extensive response to several errors she made in a Motherboard editorial predicting that copyright law might enable the Chinese government to disappear the famous “Tank Man” photograph from the internet.  It’s still online of course.

So, while I truly doubt Sarah Jeong is a racist and think the people labeling her as one should get a grip, I am equally skeptical that future NYT editorials on the intersection of technology and copyright will be well-balanced—or even accurate.

New Paper on Why People Share “Fake News”

Related to the above, I notice that the National Review site has two top stories featuring Sarah Jeong, the second of which is headlined “Yes, Anti-White Racism Exists.” This dumb and bogus narrative is what academic Alice E. Marwick would identify as a “deep story” in her new paper titled Why Do People Share Fake News? A Sociotechnical Model of Media Effects. Unable to fully answer that question yet, Marwick provides a complex nuanced framework for further discussion, identifying socio-cultural factors that cannot be overpowered by solutions like fact-checking.

Although the volume of what Marwick calls problematic information is greater among the contemporary “right” at present, the contemporary “left” is by no means immune to the underlying reasons why people are apt to believe and spread “fake news,” hoaxes, and other forms of disinformation. I’m working on a longer post summarizing Marwick’s paper, but for those interested, her full paper is here.

TVEyes Files for Cert at Supreme Court

Filing a petition for Supreme Court hearing in its ongoing litigation with FOX News, TVEyes hopes to get another shot at presenting arguments that failed in the Second Circuit in February of this year. Eriq Gardner for The Hollywood Reporter writes, “TVEyes’ attorney tells the Supreme Court that the 2nd Circuit decision conflicts with precedent and ‘creates a circuit split over a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.’”

There is no brief to review yet, but that statement alone, taken from a request for an extension to file, does not seem to bode well for the Supreme Court granting cert for a couple of reasons. The first, as detailed in this post, is that the same appellate court that ruled in favor of Google Books also drew sharp distinctions between that case and TVEyes (ergo, maybe not so much of a split). The second reason is that it is consistent with precedent to hold that the First Amendment rights of users of a service do not automatically make the service itself non-infringing. This is a chronic argument made by tech-industry players, and as described in this post, courts generally take a dim view of corporations that attempt to “stand in the shoes” of their customers.

I’ll be surprised if SCOTUS agrees to review this case, but if it does grant cert, expect a storm of amicus briefs to follow.

EFF Honors Itself With Its Own Award

In a July 30 announcement, the Electronic Frontier Foundation named Stephanie Lenz, creator of the “Dancing Baby” video, among the recipients of this year’s Pioneer Award. “Stephanie Lenz’s activism over a home video posted online helped strengthen fair use law and brought nationwide attention to copyright controversies stemming from new, easy-to-use digital movie-making and sharing technologies.” Many of us will never experience the injustice of having a video removed and then restored to YouTube, but in that silent interval, when people could not watch Lenz’s baby boy dancing in the kitchen, her world—indeed the whole world—was just a little bit darker.

I wrote a post in October of 2016 summarizing the narrative of this decade-long EFFishing expedition; but suffice to say this award-earning “activism” did not even begin as a fair use case; “Fair-Use Champion” Stephanie Lenz stated her own ambivalence about the video remaining on YouTube; the fair use/DMCA argument itself is razor thin; and I would bet anything that, beyond us copyright watchers, “nationwide attention” sounds something like this: Oh yeah, didn’t Prince sue some mom? And that didn’t even happen.

So, in the same way that Stephen Carlisle described Stephanie Lenz as the “nominal plaintiff” in Lenz v. UMG, it seems reasonable to call her the nominal recipient of this award, which should rightly go to the EFF’s own Corynne McSherry for Outstanding Achievement in PR Through Boondoggle Litigation.