Category: Intellectual Property

Copyright Doesn’t Restrain Culture – Part I

Among the premises commonly stated to argue that we must “rebalance copyright for the 21st century,” we find two widely spread and oft-repeated generalizations, both of which are false.  The first generalization is about access, which proposes to speak for the consumer and implies—or explicitly declares—that copyright acts as a barrier to the diffusion of cultural works.  The second generalization concerns the creation of new works and proposes that copyright acts as a barrier to derivative and new works, that it stops new creators from building upon existing works, which is inarguably an essential—even unavoidable—part of the creative process.

The fundamental problem with both of these generalizations is that neither the consumer’s nor the creator’s experiences, practices, or behaviors largely support the assertions being made.  Nevertheless digital-rights activists, pundits, and academics continue to repeat these messages as though they are common sensical, observable truths; and further, they tend to conflate the two interests—consumers and creators—despite the fact that these are generally separate subjects with regard to copyrighted works.  As such, I’m presenting the following as a two part-part essay. Part I will address the first generalization about consumers, and Part II will address the second generalization about creators building upon existing works. And, although I understand that it is very popular to say that “we are all creators now,” that there is no longer a line between creator and consumer, I believe this is also not true in the market overall. In Part II, I will address the hybrid consumer/creator, but for the sake of clarity, Part I concerns only those people who consume works and have no interest whatsoever in creating even so much as a minor mash-up. After all, this is almost certainly how we can describe the majority of the market we honestly call consumers.

Part I – Access and the Consumer

Statements made about copyright limiting access are typically—one might even say purposely—phrased in high-minded, aspirational tones.  They involve words like culture, enlightenment, democracy, information, and education.  The assumption is that copyright terms are so long, that prospective consumers of important and valuable works have difficulty gaining access to them—or at least difficulty relative to the speed of the Internet.  This paints a picture in which copyrights keep great works under lock and key, thus starving society of the many rich, cultural experiences to which we are the rightful heirs as stated in the intellectual property clause of the Constitution.

Of course, one of the simplest, initial answers to this charge is that the lion’s share—by a substantial margin—of the works that are pirated via the Internet, are mass-appeal media, which have been produced only very recently; this includes works like motion pictures or hit TV shows that have not yet been officially distributed by their producers.  So, even the most tamely-worded proposals to reduce copyright terms to roughly a decade on the grounds that this would be “more in synch with the 21st century,” are naive at best, and outright lies at worst.  Or as Robert Levine puts it (and I have quoted him on this before), “It doesn’t matter if copyright is Life plus 70 or Life pus 50 years, because on the Internet, copyright lasts about ten seconds.”

With regard to older works (classics), the reformer’s view, which says these belong in the public domain sooner, is actually more elitist than its proponents would like to believe.  It assumes the majority of the market actually cares to have access to these works, which is a typically liberal leap of faith that wants to lead even the most stubborn horses to water.  I know that sounds snobbish, but it’s quite the opposite.  I don’t think less of my neighbors because they don’t likely give a damn whether or not the entire oeuvres of Bergman or Fellini are available via legal streaming, but that they are eager to watch Game of Thrones, Sons of Anarchy, The Walking Dead, and sports.  To the contrary, they represent the real market, while it is only a handful of us oddballs who might choose to make an evening out of re-watching Fanny and Alexander.

So, to put this in exaggerated terms, it wouldn’t really matter to a very large portion of the market if the works they don’t care to access had perpetual copyrights or if the works they do care about had ten-year copyrights because most consumers want to access current works immediately, and they will acquire them—either legally or illegally—regardless of copyright terms. And because most of the works they do want are current, these are also widely available through legal means.  So, in this regard, it is dishonest when the voices who say, “You can’t stop piracy,” or “Piracy is a reaction to scarcity,” happen to be the same voices who say that copyright terms should be shorter.  One cannot argue in favor of both theft and shorter terms at the same time without sounding ridiculous.

Meanwhile, long copyright terms are probably the most effective mechanism by which to preserve classic works that at least some portion of the market does want to access, and in formats in which they prefer to experience them. Maintaining licensing regimes funds necessary restoration, remastering, fresh translation, publication, distribution, and other labors necessary to produce fresh editions of media that are desirable to the market for a large number of classic works. (Because if one is going to make an evening of an Ingmar Bergman film, one does not to watch some crappy digitization of it on YouTube.) Yet, nearly two years ago, the Duke University Center for the Study of the Public Domain released an article, devoid of any clear thesis, complaining rather strenuously that a list of great works, including Bergman’s The Seventh Seal, remained under copyright as of the start of 2014.

Naturally, I’m using Bergman as an example that could stand for any classic work of art or scholarship, and I wonder now, as I did in my rebuttal to that Duke post, what exactly does one want to do with The Seventh Seal other than to watch it? Which, by the way, is currently possible via Hulu, Amazon, or iTunes.  So, not only does the copyright barrier not exist for the consumer in this case, but the narrative that is constantly repeated, even by scholars we’re meant to take very seriously, tells a double-fiction—first, by implying that there are scores of disenfranchised people hungry to watch this classic film; and second, that those who do want to see it are unable to do so.  Yet, here I sit, three dollars and about four button clicks away from watching Max Von Sydow play chess with Death, if I want to.

Of course, any number of readers can produce the title of an obscure work that is either difficult or nearly impossible to find.  But this has always been a challenge for the true enthusiast of a particular genre or artist, and its singular nature is again its own rebuttal to the claims made by copyright reformers that “the public” is underserved by the current IP regime. A tiny minority cannot necessarily represent “the public,” and the legal system cannot wholly anticipate and serve every unique desire. But again, for the true enthusiast in pursuit of an obscure work, the most sustainable preservation mechanism is likely going to be one that is built on a foundation of licensing.  While random digitization by amateurs ripping DVDs, etc. may have the momentary appearance of “making works available,” it is a very poor—and entirely unreliable—form of preservation.  For instance, MGM’s long-term interests in its library of famous musicals is the mechanism that maintains the prints and quality reproductions of Singin’ in the Rain, not YouTube and certainly not Putlocker. But in any regard, the more niche the interest of the consumer, the more we are talking about such a small fragment of the consumer market that it seems irrelevant to any practical debate about copyright terms acting as a general barrier to access.

Also, despite the fact that many classic works of art and scholarship are either in the public domain or cheaply accessible, the promised enlightenment that is supposed to follow as a consequence often looks a bit like a fading 60-watt bulb. For instance, in a bizarre moment of afflatus in May 2013, anti-copyright’s would-be prodigal son Derek Khanna stated on Twitter that people should not read The Great Gatsby because it is not yet in the public domain.  This still elicits a Scooby-Do double-take to consider his logic, which advocates a specific illiteracy as a symbolic protest against copyright terms, despite the fact that this particular novel is so widely available that one is apt to trip over a discarded copy in a city park.

Nobody can justifiably argue that readers lack access to the works of Fitzgerald because of copyright terms. Meanwhile, I’m sure these works are available illegally right now, but that does not necessarily mean any more people are reading them than they were 20 years ago. In fact, Gatsby itself is probably being assigned to groaning high school students at this very moment, including at least several who will keep up the American tradition of taking their access for granted and dodge the reading altogether. And, for that matter, we seem to be witnessing a new phenomenon in American colleges whereby certain students are refusing to engage with various assigned classics because some theme, topic, or language offends their own special snowflakyness.  All of which is to say that I suspect that with every new work that might be made more available by “rebalanced copyright,” we may simultaneously see new social and cultural reasons for consumers to disenfranchise themselves from works anyway.

The reality is that we have more works legally and affordably available than at any time in history, plus an entire black-market that trades in making works available for free.  Yet, it is hard to find much evidence that this river of media has produced a more fertile society comprising a cultural literacy that extends beyond whatever is trending in any given moment.  Last week, my kid’s middle school had a Dress as a Movie Character Day, and so my daughter (because she’s my kid) went as Charlie Chaplin. By midday, at least twenty schoolmates asked who she was, and some thought she was Adolf Hitler. I find this extraordinary. With all the information that’s available right now—all of it entirely unaffected by copyright—how do middle-class American kids get to be 13-14 years old and not at least recognize an icon like Chaplin’s Little Tramp — to say nothing of knowing what Adolf Hitler looked like? These are hardly images of arcana.

In another example, my eldest in college, taking a required American civics class, reports that several of his fellow students had no idea Germany was recently divided East/West, and they had also never heard of the Cuban Missile Crisis.  How?  Are these not digital natives who have grown up with “the world of knowledge at their fingertips”?  It is preposterous to claim that their ignorance on these basics of general knowledge is because Google hasn’t been allowed to digitize enough content due to copyright constraints. So, can anyone rationally argue that accelerating the progress of works into the public domain has anything to do with a broader literacy?  If these kids are missing certain fundamentals, it’s because of other reasons—mediocre schools and family influence being the most likely—that have nothing whatsoever to do with copyrights.  Ironically enough, I think my generation may have acquired more cultural literacy just watching Looney-Tunes cartoons on one of a dozen TV networks than many a digital native has gained from all the “access” he supposedly has today. After all, our Bugs Bunny “scarcity” was a primer in world history, music, film history, Shakespeare, art history, literature—and in a certain Wile E. Coyote way, basic physics.

This is not to say, of course, that there isn’t literacy to be found in contemporary media. Writer Daniel Starkey offers a very frank article about growing up poor and committing petty larcenies in order to have some of the things the kids around him had.  Entitled Piracy Gave Me a Future, Starkey’s main thesis is that media piracy provided him with access to a literacy he might otherwise never have had.  He writes …

“Deus Ex was the first game I’d seen that listed its primary influences, which included philosophers like Hobbes, Voltaire, Locke. They were wealthy men, to be sure, but learning about their work set me on the path to learning about sociology, about history, about how much all media is one long chain of slightly modified ideas, with each new link adding a new twist or perspective. The game’s themes also spoke to some of the most personal concerns of my life, including economic class, injustice, about the disempowered fighting against a wealthy ruling class.”

And this is exactly the kind of anecdote the copyright “reformers” like to cite in order to prove the purpose of their agenda.  But I would counter this with two points.  The first—as I have already indicated—is that Starkey pirated works that were current and, therefore, would still be under copyright even with very short terms; and the second is that exceptional individuals like Mr. Starkey have throughout history found ways to educate themselves beyond the barriers of their circumstances. Those barriers are usually financial, cultural, or political while having very little to do with the specifics of intellectual property laws. After all, there are millions of kids whose parents bought them Deus Ex and who did not take from their gaming experiences the kind of life lessons that effected Starkey’s future. But it is the market of those millions of paying customers and the legal framework for development and distribution of the game that provides the foundation for producing Deus Ex in the first place. (It should be noted that Starkey’s article does not make any kind of mention regarding copyright reform; he is merely sharing his own introspection.)

The critics claim that copyright creates “artificial scarcity” in a time when technology demands abundance.  They say we live in a “read/write” culture today, but this is only a fragment of the larger picture because I think we also live in a “don’t read/burn” culture, in which whatever is viral (ergo profitable) continually overwrites the kind of fundamentals of cultural literacy referred to above.  One need only look at the state of our politics to see that my kids’ schoolmates aren’t the only ones who seem to have no knowledge of basic, historical facts and are living out Santayana’s axiom.  Yet, organizations like the Electronic Frontier Foundation like to draw circuitous lines from a creator’s enforcement of his copyrights toward a slippery slope into political censorship. This was in fact the crux of one statement after the Ninth Circuit Court ruling in Lenz v UMG.  As posted on the EFF site, attorney/activist Corynne McSherry says the following:

“The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”

Aside from the specific rebuttal we might make to McSherry’s assertion that a rights holder can use DMCA to effectively censor a candidate or criticism of a candidate—because she can only be referring to very specific and rather unlikely circumstances—her larger point would be laughable if it were not so depressing.  Have the hyperbolists at EFF not noticed that our digital-age, 140-character politics have become more reminiscent of the volatile, populist, and naive 19th century than anything akin to the revolutionary promise of a more progressive 21st? Remix isn’t just some fun thing the kids do with a song and some video clips, as Mr. Lessig would tell us, remix is also what’s happening to truth, to science, and to journalism that’s trying to stay relevant in a world moving faster than the speed of real investigation. So, it seems to me that we could hardly detect censorship in a public debate so utterly devoid of facts, reason, statesmanship, or even solid reportage in many cases. Yet, the EFF would have us believe that it will be some musician taking a video off YouTube that will in some way harm our political process. If anything, it may be the musician who’s the only one making any sense.

This is not to say that social and intellectual progress is not being made in many areas, or that digital technology does not play a significant role in that progress—only that copyright terms (or patent regimes for that matter) are not acting as a barrier to that progress. For all the anti-IP rhetoric, these regimes are probably as generative as they have ever been, and I sincerely doubt there is any measurable evidence to prove that the copyright system is holistically out of synch with the 21st century and the digital market.  It’s just one of those things that sounds true and may even look true on the surface, but probably isn’t true if we really study the matter carefully.  If anything, the present reveals that the general consumer has ample (legal) access to more works than he can realistically experience.  At the same time, there are myriad social reasons why consumers do not access any number of works of art or scholarship, and it seems hardly reasonable to blame the rights of the artists and scholars for that.

In Part II, I’ll address the assertion that contemporary copyright is out of synch by acting as a barrier to the creation of new works.

GroupM Announces Major Step in Anti-Piracy Effort

As I reported this February, the advertising industry announced a new initiative led by the Trustworthy Accountability Group (TAG) called the Brand Integrity Program Against Piracy.  That post outlines the basic principles of the program, but suffice to say, this is a voluntary effort by the major brand advertisers to keep their high-value ads off exploitative sites, whose traffic is derived by media piracy.

In what will likely prove to be a significant step forward for this program, the world’s largest advertising conglomerate, WPP’s GroupM, today announced that it will require its partners to use TAG-certified, anti-piracy services.  GroupM handles $106 billion in media for its clients according to Adweek.  Writes Lauren Johnson, reporting on this news for that publication, “Such fraudulent sites rip off advertisers in two ways: They sell ads against copied content, or they set up botnets that infect computers with viruses that drive huge numbers of clicks on ads.”

While many pioneers of the Internet did not envision that its design would ultimately serve the purpose of advertising, there’s no question that’s how it is designed today.  Just about every declaration we hear about the Internet’s power to [insert platitude here] is backed entirely by the revenue derived by marketing and advertising.  Every “new model” recommendation to authors of creative works—whether valid or not—is in one way or another predicated on advertising revenue.  Web 2.0 is a media business.  And whether or not everyone thinks this is the best possible use of this technology is secondary to the fact that the value in this market should be inoculated against the toxicity enabled by the technology.

Piracy is too often treated as either neutral, beneficial, or prescient; and it is assumed that the only victims are giant corporations, which can afford to lose a few sales.  GroupM’s progress in this initiative demonstrates that widespread piracy actually poisons the entire value stream that drives the Internet as we know it today.  And anyone who still thinks that to be anti-piracy is synonymous with being anti-technology should take a gander at this video from GroupM’s agency Mindshare.

Lenz Ruling Isn’t Really About the Little Guy

There are several aspects to this week’s 9th Circuit Court ruling in the “Dancing Baby” case a.k.a. Lenz vs UMG.  Some of the language used by the court will cause a stir among legal experts as to whether or not this decision lays a foundation for rewriting fair use doctrine. But we have a long way to go on that matter, so whatever the Internet cheerleaders are saying about that this week is premature and probably misleading. Still, I’ll let the legal experts take on those larger implications, about which there is much to discuss — as indicated in this post by Devlin Hartline at the Center for the Protection of Intellectual Property. (See also Jonathan Bailey’s piece at Plagiarism Today.)

In practical terms, what the ruling likely does mean for independent creators in the present is that they may feel even more confused about fair use than they already were, and they will have greater fear with regard to enforcing legitimate infringement claims, at least via the DMCA takedown procedure.  And this is what truly galls me about the ruling and all the crowing about it:  the pretense that this a victory for the little guy over the big, bully corporation. Because in reality, this ruling may further disenfranchise individual creators while probably doing very little for general users; but it does at least appear to move the ideological needle toward legal conditions that favor the biggest corporate bullies in the room. So, bravo, EFF!  You’ve won at least a partial victory for the underdog we call Google.  First some basics…

Perception

Organizations like the Electronic Frontier Foundation and Public Knowledge have succeeded in convincing the public that the DMCA notice-and-takedown process is rife with abuse — that copyright holders are constantly stifling free speech on platforms like YouTube by taking down videos without bearing any burden of proof that an infringement even exists.  In part, this perception is fostered by the natural circumstance that it will always be the large, corporate rights holders who send out the majority of DMCA notices — in the tens of millions — and so it is always easy to paint the NBCUs, Sonys, UMGs, Disneys, etc. as the big, bad guys trying to stop all the fun, and perhaps even chill political speech and criticism on the Internet.  Then, along comes a case with the perfect blend of narrative elements — a mother’s personal video, a cute dancing baby, the reclusive artist Prince playing in the background, and a large corporation issuing a takedown notice — to convince people that legal doctrine is in dire need of revision.  So, the EFF spends nearly eight years (so far), litigating on behalf of Mrs. Lenz, presumably in the name of all the other users out there just like her.

Reality

The DMCA notice-and-takedown process is a poor remedy for creators today — one that is essentially available only for corporate rights holders, who can afford costly enforcement departments and software to comb the web for their assets. And even for these entities, it’s an exercise in frustration as infringing posts reappear as quickly as they are removed.  For individual rights holders, like indie musicians or filmmakers, DMCA notice-and-takedown is truly spitting in the wind because, contrary to what the EFF tells you, the volume and rate of infringement dramatically outweighs all capacity to use DMCA as an effective remedy, let alone provide much opportunity to purposely abuse the system. As an example of the kind of ratios we’re talking about here, even a large entity like the MPAA sent out 25 million notices in a six-month period in 2013, and these resulted in just 8 counter-notices (or .00032%).  And in all likelihood, those 8 represent mistakes or judgment calls, but not willful or negligent abuse of the system.

And those counter-notices are a part of the system. The rights holder sends a takedown notice and, if the user/uploader feels the notice is in error, he/she may send a counter-notice to have the material restored on the platform.  This is exactly what happened to Mrs. Lenz’s dancing baby video, which was down for about 30 days (her first counter-notice failed or it would normally have been ten days), and UMG did not file suit in response to the reposting of her video. Instead, the EFF, on behalf of Mrs. Lenz, sued UMG despite the fact that the DMCA notice and counter-notice process worked exactly as it is designed to work.

And, while the EFF may claim that this case is about seeking to remedy DMCA abuse in favor of us users, we should keep in mind that there have been far better examples of actual abuse of DMCA than Lenz, but this story just happens to provide an ideal PR platform from which to launch a campaign to rewrite copyright law (namely fair use doctrine) itself.  But rewrite it for the benefit of individuals or for the benefit of the Internet industry?  That’s one question about this story I think people should be asking.

The Ruling

The salient headline from the court, about which much hay shall be made, is that a rights holder must now “consider fair use” before issuing a takedown notice.  This may have the ring of balance and reason to it, but in practical terms it’s pretty vague. The EFF’s contention has been that UMG willfully neglected to “consider fair use” when issuing the takedown notice on the Lenz video; and if that sounds like a hard thing to prove, it’s because it basically boils down to mind-reading. The logic apparently being applied is that the Lenz use is so obviously fair, that UMG could only have been neglectful in this case. What this court said was, yes, a copyright claimant must “consider fair use” before sending a takedown notice under DMCA and that a user like Mrs. Lenz may sue for wrongful takedown accordingly.  But, the court also stated that a plaintiff in such a litigation bears the burden to prove that the defendant “never considered fair use” prior to issuing the notice.  Moreover, the court rejected EFF’s efforts to define “consideration of fair use” objectively, stating instead that such consideration is subjective.  In other words, the rights holder must “consider fair use” but he need not be particularly good at it. And this is actually good news, because if the legal professionals can argue about the application of this doctrine, how are a bunch of artists and general users supposed to know what the hell they’re doing?

For instance, take the implications of this ruling out of the realm of the EFF vs a big player like UMG; and consider the circumstance of an average user uploading a video that contains the work of a small, independent creator.  First, a potential litigation between these two parties becomes an even more ephemeral exercise in the aforementioned mind-reading (i.e. how does the plaintiff prove that a non-attorney defendant never considered a legal doctrine that has no bright lines in the first place?). But second, it is a ruling that offers no new, practical remedy for either rights holders or general users because most people in either group cannot afford to engage in federal litigation. So, that brings us back to the notice/counter-notice system we have now.

But, independent rights holders, who’ve nearly given up trying to use DMCA as a remedy anyway, may now be just a little more reluctant to enforce their rights via this mechanism, especially if their work is used by an entity that can actually afford to go to court when the rights holder cannot. For example, if Sally Musician sees that Bobby324 has uploaded a video using her song that she wants taken down, she’s probably not going to be too worried that Bobby324 can take her to federal court with a wrongful takedown claim based on this ruling.  But what if the Church of Scientology, which is rich as Croesus, uses Sally’s song in an evangelical video, and she freakin’ hates it; and they didn’t ask permission or pay for a license?  Now, even if she cannot afford to sue, she might also be afraid to use DMCA just to take the video down because this behemoth entity can easily afford to take her to court and claim that she never considered how their “educational message” might be fair use. Yeah, it’ll be a bullshit claim, but she’s still taking a risk of being sued by a big entity just for seeking a non-litigious remedy in the first place.  So, how exactly is that a win for the little guy?

Should Mrs. Lenz’s video have been left online in the first place?  Probably.  But we’re also hardly in Erin Brockovich territory here. Nobody poisoned the groundwater. A video was taken down and then went back up. And considering how often the clarion call for “balance” is sung from the valley of silicon, it is quite something to consider that the EFF is now in a position to potentially collect what must be millions in legal fees from UMG, all because a woman had a video taken off YouTube for a month.

Of course, there’s a principle at stake, right? And that principle is supposed to be free speech. I could do a whole other post on that line of reasoning alone; but again, there are concrete examples of purposeful abuse of DMCA to attempt to silence criticism, etc. and the EFF didn’t invest these labors in any of those cases. So, the principle here is not exactly clear. I think what is clear is that the Internet industry is gunning for fair use itself, hoping to broaden, or even reverse, the doctrine as a limited set of exceptions to copyright protection.  The court didn’t exactly let them go there; and as I say, we’re miles from knowing what this ruling may mean in the big picture.  In the meantime, it’s business as usual on platforms like YouTube, with individual creators perhaps slightly more skittish about asking people to please not steal from them.  Well done, EFF.