Category: Intellectual Property

Periscope Piracy and the Tao of Tech Writers

Last December, a few glasses of Rioja and I wrote a pretty grumpy rebuttal to Washington Post tech writer Caitlin Dewey, accusing her of cheerleading for media piracy.  A few respondents, including Dewey herself, said that I was unfair, that her article about The Pirate Bay was merely reporting facts without editorial.  Of course, with certain styles of communication, it can be very difficult to tell the difference between dishonesty in intention and ignorance of how one sounds.  Is the author choosing her words carefully in order to engage in a zen-like OpEd, in which she advocates an agenda without clearly declaring so?  Or is the author unaware that her words have connotation and tone that imply a point of view she doesn’t really have?

Here’s the sound of straight reportage by Rhiannon Williams for The Telegaph:

“Game of Thrones is the most illegally-downloaded TV programme internationally, accounting for a quarter of all pirated downloads from 100 torrent sites. The programme was downloaded over 1.4 million times between January and February this year – nearly 50 per cent more than its nearest rival The Walking Dead.”

And here’s a work of unequivocal editorial by Grace Dent for The Independent.

“Fans wanted to see all-new Game of Thrones right then, right now. The fact that this was plain theft, or that it might offend lots of their beloved actors, producers and TV bigwigs made no difference. Morals? Ethics? Who are you, the Dalai Llama? It was the weekend, time for some “me time”, and Game of Thrones fans – with Britain topping the list for thievery – wanted to shove all four episodes instantly into their greedy snaffling eye-holes.”

And here’s Caitlin Dewey writing about the new phenomenon of using Periscope to live stream an episode of GoT:

“…tens of thousands of people pirate that show every day — but the mere possibility of more people live-streaming has HBO running scared. The company promptly declared Periscoping “mass copyright infringement,” despite the utter lack of any audience approaching “mass.” And yesterday, the company sent a series of takedown notices to Periscope over GoT. Which is extra-peculiar, since HBO usually takes a pretty chill stance toward “Game of Thrones” piracy.

This, however, is piracy of a totally different breed. There are no torrents, there are no files, there are no thumbdrives or DVDs. That makes Periscope a bit of a challenge — not terribly dissimilar from the era when VCRs threatened TV.”

It is admittedly a little hard to tell if Dewey is only reporting or also commenting here.  Is she aware of her provocative choice of words, or is she just being careless?  For instance, HBO does not have a “chill stance” toward GoT piracy; the company, like any other rights holder, has a strategic stance, which wise or not, is entirely at their discretion.  Thus, there is nothing peculiar, from either a strategic or legal perspective, about making distinctions between one form of piracy and another. So, by suggesting that all piracy of GoT ought to be viewed equally in HBO’s eyes, Dewey is expressing an opinion, and a very unconsidered one to boot.

In fact, the lack of recording media to which Dewey alludes is just one reason why Periscope is very much dissimilar to the Betamax case, which is what she means when she refers (and is also editorializing) to “the era when VCRs threatened TV.”  She’s correct that a DMCA takedown request is meaningless in a situation where no data is stored that can be “taken down,” but her general thesis (if there is one at all) appears to be that Periscope represents a potential form of mass piracy that lurks in muddy legal waters with regard to copyright.  And I doubt this is the case because the use of Periscope in this manner rather clearly infringes on the right of public performance — an illegal broadcast — which is territory fairly well covered by copyright law.

For readers who haven’t heard, Periscope is a live streaming app owned by Twitter that enables just about anyone with a smart phone to live stream whatever is in front of the lens.  So, what happened with Game of Thrones was that some users pointed their cameras at their TV’s  during the broadcast of a recent episode, and a whole bunch of people watched the show via the app on their handheld screens.  Yes, it’s a pretty lame way to view a multi-million-dollar, high-production-value TV show, and Dewey says as much at the end of her article.  But neither she nor I are copyright attorneys, so we’re the kind of writers who should try to be careful about making mashups of caselaw, particularly those that are entirely unrelated to the story at hand.

For instance, Dewey’s two comparisons to the VCR are meaningless distractions in an article about  a technology like Periscope. The right to time-shift by recording broadcasts for later viewing (i.e. the decision in the Betamax case) involves privately stored media that has both legal and functional limits — limits that stop the program recorder from infringing on the right of public performance.  For instance, you may record Game of Thrones on your VCR, DVR, or even some other medium for viewing alone or with friends and family later, but you may not exhibit that recording in, for example, a public theater or coffee house, either for free or for money, and you certainly may not broadcast it.

The right to record for the purpose of time-shifting bears no resemblance to a technology that enables live broadcast to hundreds or thousands or potentially millions of viewers.  The functional differences are observable by common sense and don’t require any knowledge of copyright law.  That said, my colleague Terry Hart, who does know something about copyright law, explains, “The drafters of the 1976 Copyright Act clearly anticipated that new communications technologies would allow the exploitation of works without any copies changing hands. They created a new right of public display to apply to static works like books and images. And they drafted the right of public performance to include transmission and communication ‘by means of any device or process.'” Citing the 1965 Supplementary Register’s Report on the General Revision of U.S. Copyright Law, Hart also shares this:  “… in certain areas at least, ‘exhibition’ may take over from ‘reproduction’ of ‘copies’ as the means of presenting authors’ works to the public, and we are now convinced that a basic right of public exhibition [later replaced with the word display] should be expressly recognized in the statute.”  So, not only is copyright likely well-armed for a technology like Periscope, but it’s been anticipating the need for at least half a century.

Dewey also grazes the subject of transformativeness with regard to using Periscope; and this might raise some interesting questions. If I live stream a TV show, or even a live performance, while making commentary along the way, or if I turn the whole thing into a new work of performance art, would the use be transformative?  Probably. But that does not mean every use in this manner would be a fair use when judged according to the four factors applicable in such cases.  Every use would have to be judged individually; so, just streaming a football game with your own commentary, for instance, would probably fail with regard to assessing the amount of original work used and the potential economic harm to the original.

More broadly with regard to Dewey’s style of commenting on these matters is that she sounds to me like someone sponsoring a general point of view predicated on the idea that when technology makes a particular process or behavior possible, the relevant legal framework must be dismantled in order to “make way for progress.”  Maybe that’s not her view, but I do think articles written in her style, and bearing an imprimatur like The Washington Post, feed this general attitude among readers.  And whether we’re talking about Periscope or any other innovation, this perspective forgets the purpose of legal frameworks in the first place. After all,  “Progress” has been the generic excuse of every vested interest that ever wanted to get away with doing harm in the pursuit of personal fortune. “Progress” has been the argument for pollution and poor working conditions, too; and that’s why we create legal frameworks that say, “Bullshit, you’ll have to figure out a way to make money without dumping sludge in the river.”  At least we try to do this.

So, if Caitlin Dewey’s point is that copyright law is indeed unclear with regard to an application like Periscope, then is she presenting her story by way of identifying a legal loophole in need of closing?  I doubt it.  As with her article about The Pirate Bay “creating the Internet,” as we know it, I’m at least confused as to what point she’s making at all about copyright, piracy, or technology.  Because in the absence of a clearly stated opinion, one looks to reporters for straight facts, and that doesn’t quite seem to be her bag either.   After all, the article is titled,  The future of online piracy is easy, free and already in your pocket.  In my experience, that headline is what we call advertising.

So, what’s a copyright maximalist anyway?

I think it was just a matter of hours after my first article appeared criticizing piracy and the anti-SOPA campaign that I was called a “copyright maximalist.”  I had never heard the term, but suddenly and without any induction process, I was anticipating membership in this secret society. It’s been about three years now, and despite keeping daily vigil by the mailbox, no decoder ring has yet been delivered. I am now suspicious that the American League of Copyright Maximalists may be a myth that originated somewhere in cyberspace.

No, copyright maximalism is not associated with an organization but instead describes a point of view that is supposedly pervasive enough to warrant the chronic and casual use of the term by pundits like Mike Masnick at Techdirt.  Exactly what defines a maximalist, however, is unclear.  In the artistic sense, of course, maximalism is simply the opposite of minimalism.  John Cage is minimalist, Wagner is maximalist.  But in a political or ideological context, a maximalist is an extremist, like a religious extremist, who is so convinced of his own righteousness that he would use radical, draconian, or even violent means to enforce his view on the world.  In this sense, there may be copyright maximalists out there, but if extreme agendas are the identifying quality, I can’t say I’ve met any of these creatures yet.  Yes, we’ve seen some maximalist theater related to copyright, like Jack Valenti’s now dogeared quote about the VCR, and there’s a reason that old anecdote keeps getting recycled — because in the real world of policy-influencing debate, one would be hard pressed to find copyright supporters proposing terribly extreme views on the subject.

Take the recent ruling in the “Blurred Lines” case.  I recommend sources other than this blog for legal analysis, but all of the experts I know, either on copyright or music or both, generally view that outcome as flawed.  Without getting too granular about (and frankly screwing up) the particulars in the case, the general idea I get from all my copyright and music colleagues is that the ruling errs due to a failure to distinguish between similarity and actual infringement on the elements of the original work that are protected by copyrights.  Again, if you want specifics, I suggest this post on IPBreakdown.com by Rick Sanders, but the point I want to make here is that my fellow “maximalists” actually would advocate a far more narrow read of copyright law with regard to “Blurred Lines,” and this is consistent with the views I have encountered over the past few years. Meanwhile, as the anti-copyright blogosphere goes berserk about this case, forecasting slippery slopes and a further broadening of powers granted to rights holders, one should ask who really has the radical, or maximalist, agenda here?

Of course, it’s always easy to label someone an extremist, if you move the bar for moderate in the opposite and extreme direction. And with regard to copyright, this is what seems to have happened correspondent with the evolution of the Internet.  It is right that we should revisit the legal framework of copyright in the context of these technologies, but does that mean the only moderate and rational agenda must exclusively limit copyright across the board? Are all other views maximalist?  Is it not obvious that digital technology creates both new threats and new opportunities and that any sensible legal framework should remedy the former while nurturing the latter?  Or is that the raving proposal of an extremist?

On the other hand, nearly everything in our politics is black and white now, all written in the vernacular of extremes and organized into tidy, associative categories. In fact, I was visiting my best friend over this past weekend, and he very understandably assumed that I would confirm his assumption that the copyright community I know would see the “Blurred Lines” decision as a “win for our side.”  He was surprised when I told him how many copyright supporters disagree with the ruling; but it really shouldn’t be surprising because people immersed in the complexities of any system rarely have blunt and unilateral views. It’s invariably more nuanced.

Similarly, at a dinner a few weeks ago, I found myself talking to a couple of political conservatives, and one of them was actually surprised to learn that we had the same point of view one particular issue.  It’s unfortunate that this should be so shocking, and it suggests to me anyway the degree to which political divisiveness is manufactured and fed by all media and why it appears only to be getting worse in the digital age.  There is always opportunity for a would-be ringmaster in the circus of divisiveness, and social media are like clown cars that supply an endless stream of validation for our assumptions.

So, all that said, I really have no idea what a copyright maximalist is other than a careless pejorative to describe anyone who openly supports copyright.  If I am a maximalist, then the copyright holy war is doomed because I am not nearly versed enough in the scripture to propose any radical interpretations of it. Surely none that anyone would listen to. I don’t know.  Maybe there’s another way to talk about these things.

Jonathan Band Flogs Fair Use

Recently, on the CCIA’s Project DISCO blog, Jonathan Band wrote a post that could make a person spit out the ol’ ball gag, if you know what I mean. He tells readers that the best-selling, S&M trilogy Fifty Shades of Grey, with film adaptation opening this weekend, exists thanks to the principle of fair use, a component of U.S. copyright law.  While one must submit to the truth that Fifty Shades’s started as a work of fan fiction, derived from the source material for Stephanie Meyers’s Twilight series, one must also bristle at the manner in which Band is trying to insert fair use where it doesn’t belong.  Specifically, there cannot be a question of a fair use if there is no use in the first place; and author E.L. James (Erika Mitchell) did not use any works protected under copyrights belonging to Stephanie Meyers. To the contrary, James specifically revised her original fanfic into what became Fifty Shades in order to avoid any content that might infringe, and this stands to reason because publishers aren’t that stupid.  So why is Jonathan Band fetishizing the principle of fair use here?  And is there a safety word one can utter that will get him to stop?

In fact, now that I’ve gone there, perhaps this is the central point of this rebuttal:  fair use is not a safety word. It is not a term one can just incant in order to stop all potential claims of copyright infringement.  Even a use that is allowed by a rights holder does not become “fair” by virtue of that permission.  Fair use doctrine is a very important, but very specific, aspect of copyright law, and it’s worth noting that the United States has the most liberal application of the principle among nations that maintain strong copyrights.

In simple examples, fair use wants to protect the right of one speaker who may use a work in order to criticize, comment upon, or parody that work.  These are not the only applications of fair use, and there are four criteria applied by judges when hearing a fair use claim as a defense against an infringement claim. But absent an actual dispute over infringement, fair use is often patently obvious or utterly irrelevant. And the case of Fifty Shades of Grey, the fact that there is no conflict between Meyers and James has nothing to do with the doctrine. These authors, and authors everywhere, professional or amateur, are free to remix the beauty and the beast theme to their hearts’ content. The elements which can be copyrighted in the individual expressions are easy enough to avoid plagiarizing, which is why James can begin with a derivative fanfic of Twilight and then revise to create an original work that does not infringe.

But fair use is just one concept that the dungeon masters of the tech industry like to dress up and parade around the blogosphere in order to seduce the public to believe that certain popular works only exist in spite of copyright. Interestingly, Band’s omission of the central fact that E.L. James did not use any protected works by Stephanie Meyers means that he isn’t actually writing a defense of fair use doctrine at all. Like so many blogs and articles of its kind, this seems to be another attempt to broaden one of copyright’s exceptions into some all-purpose answer to all manner of uses where the doctrine may not apply. This can be effective based on the safe assumption that most of us are not attorneys and don’t really know how the law functions.  Hence, as a PR move, Band’s editorial aligns with the tech industry’s interest in selling the idea that all fanfic should ultimately be defined as fair use so that the activity can more easily be monetized without permission of any original authors.

To be clear, this reply to Band’s assertion about fair use is in no way an indictment of fan fiction itself. Many authors welcome the trend and even personally curate sites hosting fan fiction.  It can be a great way to interact with avid readers and fans, particularly of popular series that contain many characters and complex plots and subplots.  But fanfic enthusiasts should not be enslaved to the tech industry’s interests.  Fanfic can and does coexist with copyright law without rewriting the meaning of core doctrine.

There are plenty of great examples of fair use doctrine available, and readers should be at least a bit skeptical when the tech industry picks a particularly weak example like this one to highlight. But I get it. This story wears stiletto heels, has a whip in one hand, and a multimillion-dollar franchise in the other. It’s flashy and alluring.  But editorials like Band’s continue to overuse this false role play in which creativity is blindfolded, bound, and gagged by copyrights.  Quite the contrary.  In fact, copyright is a bit like S&M in this one regard:  if the person being “used” doesn’t grant permission and can’t set limits, it’s called aggravated rape.

ADDENDUM:  I cannot say that I am surprised Twitter lit up a bit because some readers were offended by this final paragraph in which I appear literally to be comparing copyright infringement to rape.  I would never belittle a violent and disturbing crime by equating it with a non-violent one, and I hope readers understand that the S&M theme of this story is what sparked this reference to permission.  I will add that, throughout literature, movies, TV, and journalism, authors have used the word rape metaphorically, including some months ago when Madonna actually said that piracy of her works was “like being raped.” I didn’t even agree with that simile as I thought it was making too direct a comparison.  Take that all for what it’s worth.