Category: Intellectual Property

Critics Build House of Canards to Trash USCO Bill

Photo by jeancol1503

Well, here we go.  The network of copyright critics seems to be working out their main talking points for hating on H.R. 1695, which proposes to make the Register of Copyrights a presidential appointee (with Senate approval) rather than an employee of the Librarian of Congress.  Mike Masnick, founder/editor of Techdirt, has written a piece for The Verge that comprises (I think) all of the Greatest Hits from the anti-copyright songbook, including the popular jingle referred to in my last post about Mickey Mouse being the major force behind the 1998 Copyright Term Extension Act.

While it’s tempting to respond to each of the window-dressing fallacies deployed in Masnick’s article, it would also be tedious. (I just can’t come up with any more ways to mock the invocation of SOPA by that crowd.) As usual, Masnick wants to sell us an epic tale of Copyright vs. The Internet with statements like, “The copyright questions raised by the internet are existential.” He says this as though copyright law has never contended with technology before, or as if to imply that the internet is just a litigation or two away from being shut down.  And, of course, this “existential” threat will be masterminded by Hollywood and the RIAA through the new Register of Copyrights if the position were to become an appointee of the Executive.

This defies both historical evidence and common sense, concluding with the fact that the major rights holders are, at this point, all-in on this whole internet thingy. Like those companies that said “no thanks” to Trump’s EPA rollbacks because they’ve already invested substantially in going green, the proverbial, sinister Hollywood really has no interest in “breaking the internet.” Again, in reference to my last post, how much has Marvel invested in growing its franchise just on the Netflix platform alone?  Right. So, let’s put the doomsday hyperbole back in the crazy drawer where it belongs and talk about reality.

Politicizing to Criticize Politics

Masnick asserts two big bullet points in this article, one which coincides with one of EFF’s first responses, and one which coincides with Representative Zoe Lofgren’s testimony on Capitol Hill.  (Rep. Lofgren (D-CA) represents Silicon Valley’s district and is highly critical of copyright.)

The first major point Masnick (and the EFF) asserts is that if the Register position were to become a presidential appointee, this would “politicize” the role more than it already is and make the Register more vulnerable to industry influence.  With regard to bi-partisanship, the bill was introduced by Representatives Goodlatte (R-VA) and Conyers (D-MI) and passed out of committee with a vote of 27-1.  But beyond Congressional consensus, this “influence” allegation is an interesting one coming from a crowd that has already accused the last Register (by way of a smear campaign) of being about as subservient to major rights holders as one might imagine.

Nevertheless, Masnick et al seem to feel the next Register could “go to eleven” and be even more extra totally double-secret “captured” by Hollywood. And the way this will happen is by reorganizing the USCO relative to the LOC.  It’s an argument based on innuendo, laced with emotional triggers for readers (see references to SOPA & Disney); but there is no substantive case being made as to why this reorganization will increase the potential for inappropriate deference to major rights holders.

Let’s clear something up right now.  If you have a fairly high-profile job in the federal government, your role is at least a little bit political.  The Librarian can be politicized as can the Register of Copyrights no matter where he/she sits on the org chart. So, can we cut to the chase and just say that Masnick and other copyright critics are especially opposed to this change at this time because they see Dr. Hayden as a fellow copyright skeptic, and they would really like her to perhaps appoint another skeptic as Register?  In other words, they’re more than happy to have the role politicized as long as it furthers their view of the right agenda.

Meanwhile, there is no reason to assume that a supposedly “more political” pendulum will inevitably swing toward major rights holders like Hollywood studios. After all, the current President has a guy named Peter Thiel among his top advisors who absolutely espouses a world view consistent with the views of the internet industry.  I don’t see anyone from the recording or motion picture industries with such close ties to the White House at the moment; but this bill doesn’t actually give that much power to this or any other President. H.R. 1695 gives more power to Congress (ergo more public oversight than the status quo), and an amendment added by Rep. Jackson-Lee (D-TX) requires that the President choose a Register from a list of candidates approved by both the Congressional leadership and the Librarian of Congress.

As for who might end up on that list, it’s worth noting that in the quiet reality behind all this drama, there are probably a handful of candidates in the country who most copyright experts would agree are even qualified for the job.  Some of these favor stronger copyright protections, others favor copyright’s limitations.  Some are more ideological, others more centrist than the public might expect. And here’s a little secret:  they generally know one another, are in contact with one another, and respect one another’s differing views.

Misrepresenting the Role of the USCO

The second point Masnick stresses in his article is less speculative but not actually relevant to the purpose of H.R. 1695; and it is predicated on a misunderstanding about the role of the Copyright Office. He writes:

“Managing copyrights — effectively a giant database of creative works — is very much a librarian-centric job. Librarians are custodians of information, helping to catalog and organize it while also helping people research and find what they’re looking for. The Copyright Office today, like many old libraries, is filled with card catalogs.”

For a guy worrying about politicizing this issue, this is pure spin. In fact, Masnick is actually mirroring a tactic employed by Rep. Lofgren, who has tried to make this organizational change a referendum on Librarian Hayden herself. First, Masnick wants readers to think of the USCO as performing a library-like function; then he wants to point to past failures to properly modernize that function; and finally he wants to say that Dr. Hayden—and nobody questions that she is highly-qualified in her field—has a plan for modernization that will be disrupted by this organizational change.

But the Copyright Office is not a “giant database of creative works.” The complex, consultative function on copyright policy provided by the CO is an essential role performed by dozens of professionals with vastly different expertise than librarians. And both copyright experts and policymakers have known this for a long time.  To the extent that former Register Pallante, former Librarian Billington, or any past office-holders, are responsible for failures to implement IT initiatives, that’s on them and their tenures; but this has no bearing on the rationale for making the organizational change proposed in H.R. 1695. Moreover, former Representative Howard Berman (D-CA) writes the following in an editorial for The Hill:

“Claiming, for example, that former Register Pallante had done nothing on IT modernization rings hollow when it was Pallante who initiated and implemented a public consultation process, which led to publication of the most forward-looking IT modernization plan in the history of the Copyright Office.

The Library has thus far blocked implementation of that plan. While GAO reports have catalogued IT shortcomings at both the Library and the Copyright Office, these reports acknowledge that the problems at the Copyright Office are relatively few. Indeed the GAO has concluded these problems stem from the much larger, fundamental problems with the Library IT department, to which the Copyright Office is beholden.”

This suggests the very plausible conclusion that any past IT implementation failings were at least shared between the Copyright Office and the Library, and this provides no more grounds to abort the organizational change than it would be reasonable to hold Dr. Hayden responsible for past project-management problems.  Still, the over-simple argument Masnick wants to make is that a librarian will be better at the physical, data-management aspect of Copyright Office modernization.  Of course, that’s not why he and his colleagues are criticizing this bill. They’re hoping instead that Dr. Hayden will take a more hands-on approach to copyright policy, which has never really been a role the Librarian has played before or since the USCO was first established.

Masnick and other critics want to argue that the functional relationship between the Register and the Librarian is something more intrinsic than a circumstance of history that occurred 120 years ago.  But this simply isn’t the case.  As I’ve noted in other posts, the first Register was appointed in 1897 after influencers like Melville Dewey envisioned a new, national leadership role for the Library of Congress.  (And Dr. Hayden seems exceptionally well-suited to continue that vision.)

This change in direction for the Library led to the creation of a separate office for handling copyright registrations and, in a fledgling way, advising Congress on copyright policy. No Librarian ever truly performed the function of national expert on copyright as this would be inconsistent with both the function of the Library and the evolution of copyright law in the mid-late 19th century.

Right from the start, the Librarian and the Register were divided according to both function and expertise; and those roles have continued along separate, though related, paths as each department has grown. Attempts to frame this long-overdue, organizational change as a power-grab by Hollywood are unsupported by both history and by the process Congress is implementing to effect this change.

When Copyright Criticism Is Something Else

Photo by Tamagocha

A couple weeks ago, a comment on the Illusion of More Facebook page proposed that the Walt Disney Company was able to get its start in the 1930s because the story for the studio’s first animated feature film Snow White and the Seven Dwarfs was “in the public domain.”  I don’t mean to pick on one particular comment or its author, but there is a lot in this statement that reflects widespread misunderstanding about copyright law and how it works.

First, of course, is that most references to Disney are inspired by the almost universally-believed narrative that the Disney Company was directly responsible for extending the U.S. copyright term in 1998 to its present duration.  Hence, I assume the comment was meant to reveal a hypocrisy—namely that Disney needed access to the public domain that today’s creators don’t have—and they don’t have it because of Disney!  Indeed, that could be reason for outrage, if only it were true.

Disney Did Not Write the Sonny Bono Copyright Term Extension Act 

Although, Representative Sonny Bono would eventually become a co-sponsor and strong supporter of H.R. 2589, the legislation did not begin with him. The law bears his name as a posthumous honor bestowed after Bono died in a skiing accident, which occurred two months before the bill was first debated by the House Judiciary Committee.

Nevertheless, the internet loves a scandal and so helps keep alive the myth that Bono personally walked the halls of Congress with pockets full of Disney’s cash charged with the task of extending the copyright term to protect the Mouse. Disney was certainly among the rights holders who lobbied for the term extension, but they were one of many and do not appear to have played any special role or to have spent extraordinary campaign sums relative to typical expenditures of other rights-holding petitioners.

When the U.S. finally joined the Berne Convention Treaty in 1989 (a treaty that began in 1886), this mandated the change in our copyright terms from a fixed 56-year duration to life-of-the-author plus 50 years.  Then, as Europe moved toward formation of the EU (1992), that alliance mandated that all partner nations amend their copyright terms to life plus 70 years. In response, the U.S. Congress proposed the same terms in order to maintain parity in trade. And that was the main impetus for the term extension.* It’s not as dramatic a story as Mickey Mouse button-holing Members of Congress in the Rayburn Building, but it’s a digest version of how things actually happened. The SBCTEA passed with solid, bi-partisan, bi-cameral support and was signed into law by president Clinton in 1998.

Was Disney Relying on the Public Domain with Snow White?

Sorta, but not really.  Because the Brothers Grimm were collectors of tales that were part of an oral tradition, it’s a little difficult to view their works through a modern copyright lens and know which elements might arguably have been part of the commons at the time. Regardless, a hypothetical copyright could be granted for their unique telling of a particular tale, and this would apply to the story entitled Snow Drop, which is the underlying work that became Disney’s Snow White and the Seven Dwarfs.  But even if we were to imagine a copyright in that work under current terms, then it would have expired 70 years after Jacob Grimm’s death, which brings us to 1933—four years before Disney made the movie.

So, yes, the story of Snow Drop was in the public domain at the time, but not in the way the commenter—or indeed most copyright critics—mean when they seek to argue that contemporary terms are onerously long.  The general assumption is that in 1937, Disney had a richer and deeper well of material to build upon than contemporary creators have at their disposal, and that Disney then used copyright law to close the proverbial door behind them to keep everyone else out.  While it may seem intuitive that copyright’s current terms would stifle the growth in works since 1998 (or some think since 1790), that belief is not supported either by statistical or anecdotal evidence.

Disney May “own” Snow White, but They Don’t Own Snow White

Feeding this false narrative is the idea that copyright “locks up” works for long periods, keeping them out of reach of new creators.  Although nearly every author will confirm that building upon existing works, ideas, tropes, themes is part of the creative process, this fact is not so greatly in conflict with copyright’s boundaries as many a non-creator pundit would have us believe. And Snow White is as good an example as any.

A creator—whether Disney or anyone else—may only protect a unique telling of this classic tale.  Ditto The Little Mermaid, Beauty and the Beast, Pinnochio, and many other titles in the traditional Disney oeuvre. The studio may only enforce copyrights for its versions of these stories; and for Disney, the most valuable aspect of their work is often the pictorial, graphic, or sculptural (PSG) interpretations of the classic characters (see Disney merch).  But the relevance of the idea/expression distinction here is, I suspect, overshadowed by a different phenomenon, which is really a complaint about market dominance.

One could argue that the “Disneyfication” of classic tales can have a homogenizing cultural effect because the company’s vast resources enable, for instance, a single interpretation of Snow White to dominate popular imagination for generations. This is a valid criticism or conversation to have, but it’s one about American culture, business, and marketing that isn’t really influenced by copyright terms as much as people may assume. Nevertheless, I suspect responses to these cultural or aesthetic criticisms tends to color the copyright narrative, particularly when invoking Disney.

If anything, copyright only helps to mitigate creative homogenization by disallowing unlicensed copying of what some may view as corporatized versions of stories and characters. As Harvard scholar Joseph P. Fishman pointed out in his study in 2014, boundaries like copyright tend to be generative for creators, while too much freedom to copy can actually stifle originality. Creators don’t really need a study to know this is true; they can tell you this from experience.

What About the Comics?

Moving on to a different part of the Disney organization, we have the Marvel franchise.  These more contemporary works comprise characters and narratives that many people believe belong in the public domain because they are so ingrained in common culture that it feels like these classic heroes and villains belong to all of us.  But one aspect of this idea that is often overlooked is that these characters attained that place in our hearts and minds because they were controlled franchises.

If you were a Daredevil fan growing up, you didn’t wait with anticipation to hear what your friends thought should happen next, you waited for the next issue to see what really happened next.  Without this common experience shared by fans, Daredevil would not have become a staple of the Marvel universe—and neither would any other character.

The assumption promoted by copyright critics is that when Daredevil falls into the public domain, this will spawn new, innovative ways to build upon the character for more creators.  Perhaps, but not necessarily.  As noted in an earlier post, even with PD works, we tend to see that one version at a time emerges for a period because the market only sustains so many variations at a time.  The example I cited previously is that it would be tough to compete right now with the Sherlock Holmes TV series starring Benedict Cumberbatch; and this is true for reasons having nothing to do with copyright.

So, it seems that a lot of copyright criticism, in certain contexts, is tangled up with aesthetic or emotional sentiments associated with popular and famous stories and characters.  There will always be consumers who don’t like the way a popular work is treated, even by its original creator. Just look at Star Wars. For every ten million fans, there are a hundred million opinions about what George Lucas did, or should have done, with his franchise.  But it was his franchise. If you want to decide the fate of a new multi-billion-dollar franchise, you’ll just have to invent your own.  And as many readers know, that’s exactly what Lucas did when he couldn’t get the rights to make Flash Gordon. 

*As a colleague noted since publication, there was more to this than trade harmonization; but without enumerating the various terms of copyright for different works, suffice to say that it still wasn’t about Disney and Mickey Mouse.

On the SCOTUS Cheerleader Uniform Ruling

Last week, the Supreme Court ruled in a copyright case that addresses the principle of “separability.” This is one of those areas of IP that a colleague of mine would call the “metaphysics of law,”  and that’s not a criticism.  In fact, I happen to think the more subtle aspects of copyright—the ones that challenge judges to weigh esoteric ideas like “art” or “originality” are actually part of the fun for nerds like me.

At issue in Star Athletica v. Varsity Brands are designs for cheerleader uniforms.  Both Star and Varsity make these uniforms, and when Star apparently copied some of Varsity’s designs, Varsity sued for copyright infringement.  But fashion is not protected by copyright, you say.  And that’s true. Mostly.

Clothing is a category of what the law calls “useful articles,” and as a rule, we do not want copyright’s exclusive protections to stifle the production of everyday items like clothes, furniture, coffee mugs, and earbuds. In the case of wardrobe or fashion, for instance, one may not copyright the shape or cut of a dress or pair of pants.  One can easily see how this would choke an industry of producers making garments for customers who generally conform to a consistent humanoid structure.  It’s why every fashion maker, from couture to K-Mart, can offer the market a version of the proverbial “little black dress.”

Separability considers whether or not a “pictorial, graphic, or sculptural” (PSG) work, which would be eligible for copyright protection, can be imagined as separate from the useful article.  For instance, in the world of fashion, a designer may create a copyrightable, abstract design that is then reproduced as a textile, which is then used to make a skirt.  Because that textile design is protected by copyright, and because one of the exclusive rights of copyright includes “the right to reproduce the work in or on any kind of article, whether useful or otherwise,” this is one way in which a clothing designer can, in a limited way, copyright fashion.

Because the designer may not copyright the actual cut, shape, or materials used for the skirt itself, the two interests are balanced.  The “useful article” is still free to be copied by anyone, but an article that copies the protected work of art may only be used by license of that creator.  Clearly, the protectable design is understood to exist separately from the article of clothing and can easily be imagined reproduced in some other form—as decorative art, wallpaper, coasters, mousepads, etc.

This example seems the most instructive in understanding the rationale applied by the majority in Varsity, although the consideration is very subtle to the casual observer for two reasons:  1) the designs used by Varsity are only marginally original—stripes, chevrons, and such; and 2) because it is a little difficult to imagine these designs in any context other than cheerleader uniforms, which are unquestionably “useful articles” not protected by copyright.  Justice Thomas explains the second of two prongs applied in weighing separability thus:  “The decision maker must determine that the separately identified feature has the capacity to exist apart from the utilitarian aspects of the article.” The majority opinion states …

“… if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium—for example, on a painter’s canvas—they would qualify as ‘two-dimensional . . . works of . . . art,’. And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself.”

The crux of the dissenting opinions of Justices Breyer and Stevens holds that these designs cannot reasonably be perceived as separate from the uniforms. The dissenting opinion states …

“Were I to accept the majority’s invitation to “imaginatively remov[e]” the chevrons and stripes as they are arranged on the neckline, waistline, sleeves, and skirt of each uniform, and apply them on a “painter’s canvas,” ante, at 10, that painting would be of a cheerleader’s dress. The esthetic elements on which Varsity seeks protection exist only as part of the uniform design—there is nothing to separate out but for dress-shaped lines that replicate the cut and style of the uniforms.”

Justice Ginsberg concurred with the majority judgment but not with its opinion, stating that in her view, it was not necessary to consider “separability” in this case at all. “Consideration of that test is unwarranted,” she writes, “because the designs at issue are not designs of useful articles. Instead, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles.”  In Ginsberg’s view, because Varsity’s designs begin first as illustrations that are protectable by copyright, then the right extends to the reproduction of those works onto uniforms or anything else, as would be the case in the textile example I presented.

How Significant is This Case?

Mike Masnick at Techdirt offers his own analysis along with his concerns that it could be “potentially very dangerous to a variety of innovations.” In particular, he refers to the growing market for 3D printed “useful articles,” but I suspect Masnick’s fears are unwarranted because I believe he errs in two ways—one historical, the other analytical.  With regard to the former, it remains to be seen how instructive this decision really will be to future cases weighing “separability.”

Although Justice Thomas states that the Court granted cert in Varsity “to resolve widespread disagreement over the proper test for implementing §101’s separate-identification and independent-existence requirements,” this case is also the latest in a very long narrative of American intellectual property law, going back to at least the mid-19th century when the courts were weighing decisions that helped clarify distinctions between patent and copyright. These specialties were a little blurrier in the first half of America’s first century.

For instance, in the 1872 case Baker v. Selden, the author of a book describing his own accounting system (it was really his widow) pursued a judgment that would have exceeded the purview of copyright because the claim was seeking protection for the accounting system itself.  If anything, the Selden accounting system might have been granted a patent (and it wasn’t), but the Supreme Court affirmed that a copyright in a work, like a book, “…does not extend to any  ‘procedure, process, system, method of operation’ embodied in such works, any more than to any ‘idea,…principle, concept or discovery’ in them.”

Here, I am partly quoting a 2004 paper about Baker v Selden, written by law Professor Pamela Samuelson at UC Berkeley, in which she notes that the same question of copyright’s limitation in Varsity goes all the way back to this case. She writes, “Baker also lives on in the statutory rule that denies copyright to pictorial, graphic, or sculptural works having functions beyond conveying information or displaying an appearance (e.g., clothing and chairs), as well as in the rule that copyright in a drawing does not create rights in useful articles depicted therein.” (Emphasis added)

As a scholar who leans more toward limiting copyright, Professor Samuelson may disagree with the opinion in Varsity (I cannot speak for her), but I cite her paper to emphasize the historical context for these considerations.  Suffice to say that when we get into the separability of copyrightable elements in useful articles, we’re deep into the metaphysics of IP law; and future courts may continue to wrestle with this same question on a case-by-case basis regardless of the majority opinion in Varsity.

Can This Ruling Be “Dangerous” to 3D Printing?

There may be some way in which this decision will adversely affect some future innovation in the 3D printing world, but if this is true, I think Masnick needs a better example than the one he chose for his analysis. Citing a product called the “Birdsnest Eggcup” by designer Studiogijs,  Masnick labels the test applied in Varsity as a “copyright first” approach to separability, which he contrasts with his own notion of a “useful first” approach. He then signifies the difference between the two by asserting that the former produces more copyrightable elements than the latter and that this greater mass of copyright, if you will, is where the potential danger lies for innovation in 3D printing.  I think this analysis is flawed.

Masnick suggests that, by applying the test used in Varsity, separability would insist that the egg cup could be deconstructed into individually copyrightable parts. He is correct to say that the Court would allow the useful article to be deconstructed to the point of uselessness under it’s test, but I believe he is incorrect to suggest that any copyrightable work may be substantially deconstructed into parts that are each individually protectable by copyright.  One may not, for instance, break a novel into separate phrases and then copyright each phrase.

The arrangement of elements is an essential aspect in assessing “originality” under copyright, and the idea/expression distinction (which also harkens back to Baker) is why another creator is free to make and sell a different birds nest egg cup as long as it is different enough from the one made by Studiogijs.  At least that’s true insofar as copyright is concerned.  (Studiogijs may be eligible for a design patent in this case, but I am unfamiliar with the boundaries of that area of IP; and it is not germane to the SCOTUS ruling in Varsity.)

Studiogijs “Birdsnest Egg Cup“

The egg cup, with its arrangement of branches and perched little bird, could easily be copyrighted as a sculptural work regardless of whether or not it is ever marketed as a “useful article.” Additionally, the design could be reproduced in some other form, for example as a 2D illustration and printed on coffee mugs to go with the breakfast set. This does not mean, however, that each branch, or segment of the original work could be protected by copyright in an actual litigation.

This is because the bar of minimal originality is counter-balanced by the fact that the less original (i.e. more minimal) a work is, the more subtly distinct a similar, subsequent work can be without infringing.  In the Varsity case, this means that Star Athletica should be able to make designs that are quite similar, but not identical, to Varsity’s uniforms because Varsity can only claim copyright in its precise arrangement of commonly-used design elements.  The same principle applies to the birds nest design whether it’s useful as an egg cup or not.

Or to look at this in context to Masnick’s notion of a “useful first” test, the egg cup could utterly fail in its marketed purpose to hold eggs, and that fact would have no bearing on the copyright in the object as a sculptural work.  In fact, a competing designer could theoretically make a birds nest egg cup that customers find functions better as an egg holder and so threatens Studiogij’s market.* And if Studiogijs chose to pursue a copyright claim in response, it could not hope to assert multiple copyrights in each design detail of its product.

Instead, the court would compare and contrast the two sculptures as whole works to determine the amount of similarity that the second bears to the first; and separability would probably not even be an issue in the case.  In this regard, I fail to see where the concern lies that Masnick is raising.  Nothing in copyright, before or since this ruling, would prevent another 3D producer from making a different egg cup that looks like a bird’s nest, and which competes with Studiogij, as long as it does not copy Studiogij’s design.  This is well-traveled copyright territory.

Finally, for what it’s worth, I think the elegance of Justice Ginsberg’s opinion in the Varsity case should help allay fears about the effect this ruling might have on future innovation.  Her view that Varsity’s design work was copyrightable and then reproduced onto useful articles applies to the birds nest egg cup; and it would apply in so many probable scenarios in which form meets function, that I doubt we will see a measurable increase in new barriers no matter how “useful articles” are made.

* NOTE: This is all hypothetical, nothing I’m saying in any way implies a review of Studiogij’s product.