Category: Intellectual Property

It’s called being creative. On memes and copyright.

I feel a little bit bad picking on Washington Post tech writer Caitlin Dewey as much as I have already, but it’s probably not as much as I would if I read her column with any purposeful frequency.  Unfortunately, given the subjects I write about, people like to send me links to her articles. And I read them. And then the voices in my head start yelling because she’s said something deeply ill-considered in a high-profile newspaper. And then typing happens …

So, one of Dewey’s recent observations concerns the possible extinction of “our favorite memes” from the Internet thanks to copyright enforcement by owners of the rights to the underlying images on which said memes may be based.  Specifically, she cites what is supposedly an Internet legend known as Socially Awkward Penguin, which originated on 4chan (snort-laugh).  The meme features a copyrighted image of a waddling penguin, originally captured by veteran photographer George Mobley, which has been remixed and repurposed to produce various funny (or not) aphorisms on the theme of awkwardness.

Now, I certainly won’t disagree with Dewey that the meme is a perfectly valid form of expression, though how much cultural importance we can ascribe to the medium, I suppose, depends very much on each meme and the context in which it is used.  For instance, I think I’m all set with the constant repurposing of that screen-grab of Gene Wilder flashing his Willy Wonka smirk as the predicate to every sardonic comment anyone cares to convey on any number of issues. And that gets to the real point about any expression, which makes use of existing material:  it doesn’t necessarily need to. And, guess what happens if, say, a meme maker respects the rights of the owner of the original work?  He or she communicates the same idea in some other way.  It’s called being creative.

Anyone who creates stuff will tell you that being forced to work around an obstacle — like not boosting someone else’s work — almost always produces something better than what was first imagined because the new work becomes a legitimately new expression. And this is likely to be just as true with a meme as with any other medium.  I’ve written about this theme before and have also cited a relatively recent work of scholarship called Working Around Copyright by Joseph P. Fishman at Harvard Law School.

The assumption made by those who’ve grown up with what they think is a new idea called “remix culture” is that creativity depends on unlimited use of existing works. But if SAP (Socially Awkward Penguin) was destined to become part of the digital-age vernacular, then there’s no reason to assume that this form of shared expression would have been diminished if the originator of the meme had taken inspiration from Mobley’s image rather than taken the image itself. Hence, the assertion that copyrights “stifle creativity” is an oxymoronic claim because the author who derives, works around, and creates anew will always be more creative than the author who copies and pastes.

Now, the legal story Dewey cites in order to justify the misleading headline saying that our favorite memes are being killed by copyright involves Getty Images, which manages the rights for Mobley’s original penguin photo.  Dewey writes, “In the past year, the company’s licensing agency, Getty Images, has ‘pursued and settled’ multiple infringement cases involving Socially Awkward Penguin, it confirmed to The Post. All of those actions were carried out in secret, with blogs and other posters agreeing to non-disclosure.”

We’ll get to the “secret” part in a moment, but suffice to say, one of these sites, German-based getDigital agreed to take down posted SAP memes from its blog and pay a back-dated license fee, but they refused to remain silent on the matter. Instead, getDigital published a blog post about its settlement with Getty, and this post is apparently the foundation of Dewey’s article.  From the big picture, we are meant to conclude that 1) Getty is randomly cherry-picking little sites who can’t defend themselves, which is meant to seem silly given the ubiquity of SAP on the web; and 2) that there is something truly sinister in that condition of silence regarding the settlement.  But as is so often the case when it comes to the Internet and copyright, commentary like this is predicated both on a misunderstanding of the law as well as an implied wishful thinking that it should work differently from the way that it does.  In addition to providing shoddy reporting on the actual issue, this also does a disservice to any site owner or blogger as to what they should and should not be posting.

So, to try to clear up the first part of the confusion in this story, most of us encounter memes on social media sites like Facebook. If we like them, we share them, they go viral, and it’s all a bit of harmless fun.  The reason Facebook is not liable for any infringement in these cases is that the site is protected by safe harbor provisions in the DMCA. These provisions — although they are often applied in a manner in which they were never intended — presently shield a site like Facebook because all or most of the content is uploaded by the users.  But these safe harbors do not apply to a publisher of content on his/her/its own site.  So, if the New York Times, which has editorial control over the content on its pages, publishes a Reuters photo without proper licensing, the NYT is liable for direct infringement of that photo.  Hence, this same rule applies to any site on which the owner controls the content, which would include the blog of getDigital, or even this blog because it is not a platform for UGC (User Generated Content). So, a rights holder like Getty will only go after sites on which the owner controls the content, and a lot of the big publishers know better than to infringe.

Moreover, people need to understand — and Dewey makes this mistake in her article — that money has nothing to do with it!  As mentioned in this post about a friend who found herself in some trouble with a photographer, it doesn’t matter if the use of a work is in any way related to commerce or revenue for the site owner that uses the work.  While commerce may indeed influence the remedies sought by a claimant, money has no bearing whatsoever on whether or not a work has been infringed.  This  is one of the most common misconceptions out there, and it has only been exacerbated by the apparent “freeness” of the Web.  I say apparent because none of this Web stuff is free; it’s just that most people don’t pay attention to the nature of the trade that is happening (but that’s another subject).

As for the settlements between Getty and any site owners, I recognize that secret is a truly dirty word in this age when people have convinced themselves that the Internet provides transparency, but non-disclosure is a pretty mundane, standard practice when settling civil cases of this nature.  The plaintiff agrees not to sue — that’s what a settlement is — but it is in the plaintiff’s interests not to publicly reveal the terms of the settlement for any number of reasons, namely that its right to negotiate with a future defendant not be affected by the terms of prior settlements. With an entity like Getty and a case involving visual media, it’s not exactly like settling with a medical device company that demands silence about some negligence causing physical harm.  That’s nasty stuff.  But this is not that kind of “secret.” It’s just basic practice in many areas of civil litigation; and if you were a plaintiff, you’d probably want the same conditions.

I know there is a lot of noise about rewriting copyright law in the age of the Internet, but it is patently absurd to expect — and self-defeating to hope — that such revision would result in such a shapeless body of law as to condone the free-for-all we perceive the Internet to be and perhaps even think should persist.  But neither the interests of commerce nor those of creative expression are particularly well served by this agenda; and perhaps tech pundits who presume to comment on copyright issues should first get their facts straight before once again claiming that some favored form of expression is being “killed” by this body of law. The meme, for better or worse, can continue to amuse, inform, annoy, or even misinform for years to come, and it can coexist with copyright even without revision. And we’ll all be just fine.  It’s called being creative.

On a side note, Getty does make many of its images freely available to embed as shown above for publishers like bloggers.  What do you think, “Sound of Music Penguin?”

Patent Hypocrisy Raises Privacy Concerns

A few posts ago, I reported that the major lobbying muscle in the Internet industry backs a patent “reform” bill (HR 9) called the Innovation Act. I argued in that post that while this reform claims to eliminate nuisance “patent trolls” from clogging up the system with dubious claims, what it really does is eliminate competition from the market.  Because, while the Silicon Valley PR hydra continues to sell the message that intellectual property is an outdated concept in the digital age — one that is chilling the general public’s civil liberties no less — they don’t actually mean that IP is outdated for them, just for everyone else.

Not surprisingly, a web search is no way to get a quick answer as to how many patents these companies hold. Most especially, typing “How many patents does Google have?” into a Google search yields a rather opaque set of first results from the “organizer of all data.” I had to use Bing to get to this article from 2013 in MIT Technology Review, which indicates that since 2007, Google has accelerated its patent activity to the tune of over 1,500 awards per year.  This is still far behind IBM, but not bad for a company that keeps telling the public the USPTO is “overwhelmed” by applications and flimsy claims. This 2012 article from ZD Net estimates that Facebook owned 812 patents at the time of publication, nearly all of these purchased from IBM in a single week as an apparent move to build up its defensive position against litigation from Yahoo! and Mitel.  And this 2014 article in IP Watchdog offers some praise to Facebook for its “more developed” patent strategy in contrast to Twitter vis-a-vis market valuation.

I mention this final example to make the point that there is nothing inherently wrong with these companies availing themselves of IP protections; what’s wrong is the hypocrisy of backing policy change that would create an uneven playing field for big vs small.  To put that in brass tacks, if one of these big boys infringed some IP you created, it isn’t enough that you’d be at a financial disadvantage in a lawsuit, but they’d also rewrite the law to possibly label you a “troll” in order to invalidate your claim in the first place.

But so what? These are the real innovators, right?  They’re innovating a brighter future for everyone and doing it all for free in the name of freedom and open freeness and free openness and disruptive free open innovation and freedom. Right?  Yeah.  So, here’s one of Facebook’s latest patents, Patent No. 9,100,400, which this excerpt from a post by the law firm of Gottlieb Rackman & Reisman explains clearly:

“In the patent, Facebook explains that it has invented a system by which, among other things, it can take the data, specifically your list of friends or your “social network,” and examine the credit ratings of those in your social network. The data is then used to provide information about YOU to lenders, presumably under the theory that “birds of a feather flock together.” If your friends collectively have a good credit rating, the lender might give you loan. If your friends collectively have a poor rating, the lender can close its file on your application. The point here that that lenders who might see some benefit in having data about your social network to judge the likelihood of your ability to pay the loan, or even your willingness to pay it back, will likely be paying Facebook (or any company that Facebook licenses) for the data.”

At the top of the list of magical thinkers I distrust are religious zealots followed closely by actuaries, the latter being too often engaged in devising some alchemical rationale to correlate, for instance, your choice of wardrobe with the insurance premium you should pay.  And we should not be surprised at all — in fact we have already seen other evidence — that social media profiles can become part of your unintended resume, your medical history, your credit-worthiness, your insurability; in short, your worthiness to live among the haves instead of the have nots according to someone’s data-driven decision process.

Now it is possible, that Facebook and lenders will not be able to implement this patented system as described without running afoul of the Equal Credit Opportunity Act, but if adopted, how is this credit based on the company you keep not a potential digital-age means of helping the rich stay rich and the poor stay poor?  When an entity like an insurer, creditor, or potential employer wants to disenfranchise a type of person — black, gay, Mexican, women who have premarital sex! — they devise criteria to avoid direct conflict with anti-discrimination laws.  “We didn’t deny you that loan because you’re black, we denied it because your friends (who didn’t manage to escape the impoverished neighborhood you did) all have bad credit scores.”

So, it’s not hard to imagine a future with a variety of creative, actuarial schematics by which any individual or group may be disenfranchised simply because we have voluntarily made what we used to call “private life” a matter of public record. And because this is the new normal, perhaps we ought to be drawing new legal boundaries regarding personal information and discrimination, but that doesn’t seem to be the kind of reform any of the digital-age leaders want to talk about.

Steven Johnson & A Thesis That Isn’t

A feature story for this week’s New York Times Magazine is titled The Creative Apocalypse That Wasn’t.  In the article, writer Steven Johnson concludes that neither the economic nor the cultural losses in the creative industries, which were predicted to result from the digital revolution, have come to pass.  Just as lesser pundits have previously declared in blogs and industry PR pieces, Johnson tells readers the picture is actually rosier than ever for both creators and consumers since the disruption known as Napster. And of course some of those lesser pundits (e.g. Bob Lefsetz) have been quick to leap onto Johnson’s coattails and say, “See?  Told ya so!”

Setting aside the exaggerated title of the article — I don’t remember anyone seriously predicting a “creative apocalypse” — Johnson has certainly made an effort to approach the question more scientifically and more complexly than most — or at least it will appear this way to readers based on his tone and some of the culturally-sensitive questions he rightly poses.  But the tricky thing about this article, as I see it, is that its main thesis is a bit of a moving target supported by a variety of statements that, in themselves, want far more complex analysis than Johnson either realizes or is willing to admit.

If we strip away some of the color and simply look at the assertions being made, then the basic structure of the article reveals an important fallacy.  First Johnson states that most of the evidence of harm done to creators in the digital age is anecdotal, and this is partly true — although anecdotes from professionals should not be misconstrued as mere random complaining.  So, to get beyond the anecdotal, Johnson then cites macroeconomic data, compiled by the Labor Department, most of which suggests a big-picture view that creative people in all media are doing better than they were a decade ago.  But, having previously scorned the anecdotal negative, Johnson then cherrypicks bits and pieces of the anecdotal positive — some of which he misrepresents — in order to support his interpretation of the economic data he cites.

Writers, like Paul Resnikof of Digital Music News, have previously commented on some of the flaws in the kind of data Johnson cites, demonstrating how big numbers can go up without necessarily benefiting the majority of workers in a particular sector.  It can be a bit like saying,  The good news is there are more jobs this quarter, when the hidden bad news is that an individual needs two of those jobs just to meet the cost of living.  Or to put it another way, if ten musical superstars were to generate eighty-billion in revenue, this does not mean most middle-class musicians will share the prosperity of an eighty-billion-dollar industry.  So, one must be careful with macroeconomic data, and Johnson acknowledges this, when he writes:

Could the surge in musicians be accompanied by a parallel expansion in the number of broke musicians? The income data suggests that this just isn’t true. According to the O.E.S., songwriters and music directors saw their average income rise by nearly 60 percent since 1999. The census version of the story, which includes self-­employed musicians, is less stellar: In 2012, musical groups and artists reported only 25 percent more in revenue than they did in 2002, which is basically treading water when you factor in inflation. And yet collectively, the figures seem to suggest that music, the creative field that has been most threatened by technological change, has become more profitable in the post-­Napster era — not for the music industry, of course, but for musicians themselves. Somehow the turbulence of the last 15 years seems to have created an economy in which more people than ever are writing and performing songs for a living.

But even if the numbers do lead to the conclusion Johnson wants us to draw — and it’s not clear that they do — I would point out that this is an example of the shifting thesis I referred to above.  Because these numbers, gathered from such a broad perspective, do not actually tell us anything about the effect the “digital economy” (good or bad) has had on the creative market, let alone offer any indicators as to what we might expect for the near future — and this is almost more important than where things stand right now.

At best, one might conclude that coincident with the development of Web 2.0, general revenues in the creative sectors have risen, but these data alone do not reveal any specific information that justifies dismissing all the anecdotal evidence from countless creators who are telling us that, in general, the threats outweigh the opportunities. And so, it is not surprising that, after presenting these revenue data, Johnson himself resorts to a litany of familiar, yet incomplete, anecdotes about all the good news out there.  But before addressing some of these, I’d like to return to the matter of thesis and remind ourselves what the underlying logic is behind the question that’s really being asked.

Johnson begins his article by citing Napster, which is arguably the beginning of piracy as we know it; and piracy was, and continues to be, foundational to many of the most dire predictions about the future of the creative economy.  But having set the stage with Napster (and a little dig at Lars Ulrich), Johnson then transitions to a broad analysis of “success” in the creative marketplace, essentially leaving piracy out of the discussion.  Hence, there is a little sleight of hand going on here because the argument he is supporting, either intentionally or not, is one often used to assert this general claim:  That although models based on creator ownership of works are outdated, there are ample new and better models available, if creators would just recognize them.  For instance, setting aside all the crazy, ideological bullshit about piracy, the economic argument that has been made, and which Johnson is fundamentally supporting, boils down to the following:

  • Yes, piracy created an expectation of free and very low-cost access, and it decimated actual sales of media to consumers. This also led to legal platforms like YouTube getting away with monetizing infringed works for years. But …
  • The same technologies that enabled piracy and YouTube-type, montetized infringement have also opened up unprecedented opportunities for creators to earn revenue from new streams. So …
  • Smart creators will seize these new opportunities and stop worrying about piracy and other infringements.  Because …
  • The concept of copyrights for creators is an anachronism being clung to solely by legacy industry, which is incapable of adapting to a future that is chockfull of the aforementioned opportunities for individual creators.

So, it seems to me that any economic analysis regarding the sustainability of creators should either prove or disprove this basic argument.  And I will assert that Johnson fails even to fully address this matter because his article consistently strays from analysis as to whether or not the piracy-to-freemium narrative has been harmful, neutral, or beneficial to the market; and whether or not digital technology and the design of Web 2.0 have legitimately spawned enough new opportunity to overcome the market shift away from selling media direct to consumers.

Because, anecdotal though it may be, plenty of seasoned and younger creators of every size and type can tell you that many of the “new opportunities” cited by outside observers are either not new; or they are second-tier substitutes for the revenue that has been lost; or they are simply other lines of business that have little or nothing to do with the core creative works.  Johnson is as guilty in this article as many tech-utopians, who like to point to what’s left for creators (e.g. touring for musicians), now that sales are gone.  Unfortunately, this is a bit like telling someone, Dude, I know they stole your car, but at least you still have your skateboard. 

Moreover, many of the “new” revenue streams to which Johnson refers are either precarious, unproven, or short-lived in many cases.  For instance, he cites the unprecedented opportunity for a musician to share ad revenue via YouTube, but he seems to have missed several recent memos that might indicate why this model may never be a sustainable driver.

The first of these memos would be Zöe Keating’s explanation of what it’s like for an indie musician to transition from happily earning revenue via YouTube’s Content ID system to the more recent offer-she-can’t-refuse known as the Music Key contract, which in fact voids the Content ID account of any musician who does not sign.  The second memo would be a case like that of Jack Douglas, whose satirical videos are supposed to earn him ad revenue on YouTube, but they don’t earn him anything when someone re-uploads his videos to Facebook.  (Not that it isn’t funny to watch Google lose revenue as an example of  its own anti-copyright agenda, but I digress.)  And perhaps the most compelling memo Johnson didn’t get would include recent reports that indicate Web advertising itself may be in serious crisis as a value proposition across the entire industry.  Each of these three topics is a complex conversation unto itself, which would qualify some of Johnson’s blue-sky conclusions. And these are just the first that come to mind in response to just one of his anecdotal examples of how well one class of creators is supposedly doing.

There are, of course, too many instances in this article in which Johnson merely rattles off highlights (e.g. the current golden age in TV production) as though we’re meant to conclude without looking at any details that the “digital economy” has either helped, or at least not harmed, a given sector.  And, unfortunately, as other outside commentators have done before, Johnson cites the “lower cost of production,” thanks to digital technology, as an opportunity to maximize revenues for creators.  But as I have pointed out in the past, while low-cost digital tools have lowered the barriers to entry for new creators, they have not necessarily lowered the cost of all production, depending on the medium and nature of the products.

Anyone who knows production — and this is most especially true for filmed entertainment — will tell you that the “digital technology lowers cost” talking point is a half-truth at best, and a rather cynical one because it overlooks the human effort, which hasn’t really changed all that much in most cases.  For instance, most movies and TV that people seem to love — not to mention justify stealing — is produced with thousands of hours of highly-skilled labor, the cost of which has nothing to do with the digital tools being used to create or distribute works.  And, in many cases, digital technology has actually increased those working hours rather than decreased them.

And I have to say that some of Johnson’s anecdotal evidence of good news are so tangential to his thesis as to be inscrutable, like when writes the following:

Think of that signature flourish of 2000s-­era television artistry: the exquisitely curated (and usually obscure) song that signals the transition from final shot to the rolling credits. Having a track featured during the credits of ‘‘Girls’’ or ‘‘Breaking Bad’’ or ‘‘True Blood’’ can be worth hundreds of thousands of dollars to a songwriter. (Before that point, the idea of licensing a popular song for the credits of a television series was almost unheard-­of.)

Surely, Johnson knows that licensing songs for filmed entertainment is not a new thing. And while it is true that the current, creative trend to synch various, thematically appropriate tracks to the end credits of shows is a nice opportunity for music creators, these deals have no direct relationship with the “digital economy” one way or another.  Hence, Johnson is creating a distraction by identifying a revenue stream — a licensing agreement — between film producers and music creators, which neither supports nor rejects his overall point.  If anything, he skips over the fact that the indirect impact of the free-media mindset has generally driven the value of creative works down to the extent that creators are continuously asked either to work — or allow the use of their works — for free or for very low rates.  If anything, this effect on the market would seem to shrink the opportunity for musicians to make a living by licensing works, rather than expand them.  But, again, my larger point is that each of the examples Johnson hauls into his net of good tidings begs far more in-depth analysis on a case-by-case basis.

Overall, though, Johnson seems to want to frame the discussion correctly as when he writes this:

The dystopian scenario, after all, isn’t about the death of the record business or Hollywood; it’s about the death of music or movies. As a society, what we most want to ensure is that the artists can prosper — not the record labels or studios or publishing conglomerates, but the writers, musicians, directors and actors themselves.

I agree.  Despite being accused by my haters of wanting “the studios to be all powerful,” I don’t personally care if legacy corporations survive in their present form or not.  But the Kool-Aid high Johnson seems to be on is one in which he can only see the short-term empowerment of some creators via these new technologies, but not the long-term, predatory nature of a brand new group of extraordinarily powerful, corporate masters. The MusicKey contract cited above is a clear example as to how YouTube could maneuver to become a monopsony for music streaming.  So, how is that possibility better than having a handful of legacy labels and publishers? Also, if Johnson really does care, as I do, about preserving cultural diversity, then I am truly confused by this strangely dismissive statement:

The growth of live music isn’t great news for the Brian Wilsons of the world, artists who would prefer to cloister themselves in the studio, endlessly tinkering with the recording process in pursuit of a masterpiece.

It’s the words prefer and endlessly that are both offensive and naive. Plenty of professional musicians have already commented on the “growth in live music” myth, but this statement about Brian Wilson stuck out for me because it can only be a blatant reference to the album Pet Sounds — a recorded work so universally acclaimed as innovative that George Martin credited Wilson with inspiring Sgt. Peppers Lonely Hearts Club Band.  Call me crazy, but  I think we do lose something if the market cannot support both a Taylor Swift, who makes millions of screaming teenagers happy, and a reclusive, even dysfunctional, genius, who creates a recorded work of unprecedented and lasting value. It should also be noted that creative envelope-pushers like Wilson have consistently been the forces behind the invention of new technologies themselves. Think ILM and Star Wars.

Ultimately, Johnson is supporting an anti-copyright — and even pro-piracy — argument; but he seems to want to have his Cake and eat John McCrea’s lunch, too. And I say this because so much of the evidence for prosperity he offers — both economic and anecdotal — is largely dependent upon the framework of copyright. So, after leading off with a thesis that fundamentally begs a question about the seeds of piracy (i.e. Did it hurt us?), he winds up painting some pretty pictures, but never quite answers the question because so much of the good news he alludes to is antithetical to a market that ignores, tolerates, or even extolls the permission-free use of creative works.  Because, as we see with examples like MusicKey or with the Internet industry’s willingness to monetize infringement while lobbying hard against creators’ rights, many creators themselves continue to discover that the Web giveth shortly before the Web taketh away.

Hence the question Johnson should be asking is not exclusively what the picture looks like right now (even if that picture is accurate), but whether or not the Internet industry is helping to foster a sustainable environment, not only for creators, but for non-creative enterprises as well.  And although he is a much better writer than the tech-industry pundits, I don’t think he’s told a particularly compelling story just yet.