Category: Intellectual Property

Copyright Advocacy in Turbulent Times

copyright war

It is admittedly difficult, maybe even a bit ridiculous, to think about a policy matter as arcane as copyright law when the headline story of the moment is an attempted coup d’etat—let alone one fomented by the President of the United States and endorsed by some Members of Congress. But against the backdrop of existential threat from within, I am also reminded why I believe a subject like copyright is so important:  first, because it exemplifies the hard truth that our democracy is built on fragile principles requiring careful and persistent stewardship; and second, because it expresses the almost quixotic hope among the founders that the nation might eventually be great enough to produce art and culture. In a different post, I cited this quote from a letter written in May of 1780 by John Adams to Abigail:

 I must study politics and war, that our sons may have liberty to study mathematics and philosophy. Our sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain.

Although Adams could not possibly envision the modern, technological media that would emerge in the late nineteenth century, his allusion to such delicate arts expresses that aspiration toward an American greatness that could one day be a nation strong enough to indulge in creativity and invention. Yorktown was still a year and half into the war’s uncertain future when Adams wrote those words to his wife. Thirty-four years later, during the war that some historians call the “second American revolution,” an adversary occupied a congressional chamber in the U.S. Capitol, which was still newly under construction. On August 24, 1814, Admiral Cockburn of the Royal Navy sat down in the Speaker’s chair and in a mocking, parliamentary tone asked his troops, “Gentlemen, the question is, Shall this harbor of Yankee democracy be burned? All in favor of burning it will say Aye!”

This anecdote appears in the Handbook of the New Library of Congress, published in 1897 to commemorate the grand opening of the beautiful Beaux Arts building—today the Jefferson Building—situated just east of the Capitol with its copper dome topped by the flame of liberty. Although the story has a whiff of mythologizing in it, the account of Cockburn’s farcical, legislative theater as a prelude to lighting up the Capitol is at least a metaphorically fair reflection of England’s disdain for the American experiment when they burned down icons that they noted had been so hypocritically built with slave labor.

The reason that story was published in the Handbook of the New Library is that the precursor to the Library of Congress was burned by the British as the library within Congress—a narrow skylit atrium of hardwood and wrought iron, originally located along the west wall we see behind the stage where presidents are inaugurated. The new library, as envisioned by Lincoln’s appointed Librarian of Congress Ainsworth Spofford, was not only meant to be a house for the people, but a repository for the latent genius of the people by collecting copies of works deposited for copyright registration. As cited in the book I published in November:

Immediately following passage of the 1870 Copyright Act, the library received just over 5,700 deposits, or roughly one work for every 6,600 citizens; by the peak year (for the century) of 1893, the library received just over 48,000 deposits, or roughly one work for every 1,360 citizens. So while the population nearly doubled in this same period (from about 38 million to about 75 million), creative output increased roughly fivefold.

To put it mildly, the goons who ransacked the Capitol have no better understanding of what the leaders of the Revolution hoped for America than they were clear about what they might ultimately achieve with their grotesque misadventure on the Mall. By the end of the nation’s first century, Adams’s modest hope that the United States would be strong enough to be creative was beginning to be realized. And one terrible irony of the present is that in so many areas, real American greatness—its capacity to invent, to create, and to reinvent itself—was alive and well the day Donald Trump told the nation that all he could see was “carnage.”   

It is no coincidence that the corporations most responsible for the aggressive assault on creators’ rights are the same companies now finally understood to have played a substantial role in cultivating that alternate reality in which too many citizens now operate. Mischaracterizing copyrights as barriers to access has been a key ingredient in Silicon Valley’s magic elixir they sold to the world as the “free flow of information.” And for years, they simply refused to acknowledge that truly dangerous disinformation flows just as freely and twice as quickly.

I jumped into this debate almost a decade ago because I believe that an empowered population of authors and creators is essential for a thriving democracy. In 2013, I wrote, “To put it whimsically, a great bulwark against tyranny would be a class of unusually wealthy poets.” Having now witnessed a closer brush with tyranny than many would have thought possible in the United States, I am more committed than ever to that particular kind of whimsy.

Senate Judiciary Committee Releases DMCA Discussion Draft

Shortly before Christmas, the Senate Judiciary Committee released the discussion draft of a bill to amend the copyright law, primarily the sections known as the Digital Millennium Copyright Act of 1998. There is something in the proposals for everyone to like or hate, but it is important to keep in mind that this is the starting point for what will be several years’ worth of negotiations. Although that legislative reality may not stop the copyright critics and the tech industry from fulminating early and often, I shall try, with this post, to describe a few of the major proposals without strenuously arguing for or against any one amendment. Each new recommendation deserves thorough discussion. But not today. We have a long way to go.

Section 512 Proposals

The big headline—and one that probably nobody likes—is that the discussion draft essentially throws out the four safe harbors and calls upon the National Telecommunications and Information Administration (NTIA) to develop a new set of criteria. Presently, the DMCA defines four types of service provider activities (e.g. system caching) and the conditions each must meet in order to retain immunity for liability stemming from infringements caused by users. This nearly blank-slate approach is such a bombshell in everyone’s camp that it is far too early to comment on what the responses will be.

One of the most significant proposed changes, which copyright owners have advocated for years, is a response to the complaint that courts have consistently misinterpreted what it means for a service provider to have “knowledge” of infringement on their platforms. The discussion draft includes new language meant to clarify Congress’s original intent and, in principle, limit a service provider’s ability in court to claim that they are innocently unaware of infringing material on their platforms.

The knowledge issue is the king gremlin of all DMCA squabbles, especially for smaller copyright owners (e.g. indie musical artists), who reasonably ask how can a company like Google claim to anticipate what everyone wants for breakfast but cannot know when certain works are repeatedly infringed on YouTube? In that spirit, the discussion draft introduces the conduct of willful blindness on the part of the OSP as grounds for abrogating the §512 liability shield, and it also recommends a burden on the OSP to contact and assist the notice sender who has made certain, partial errors in a takedown request. Ultimately, it is hoped that clarifying the knowledge standard will help to achieve a “notice-and-staydown” regime whenever “complete and near-complete works” are uploaded to a platform.

On the other side of that coin, the critics of the takedown mechanism will presumably like the working draft’s call for stricter penalties for bad faith misrepresentations, including specific sanctions against repeat wrongful takedowns by any party. That said, I imagine the same critics will grumble at the notion that bad faith misrepresentation can cut both ways (e.g. for counter notices), and I assume they will scream blue murder at the suggestion that the Copyright Claims Board, to be formed at the Copyright Office under the provisions of the CASE Act, would be the body to adjudicate allegations of bad faith use of the DMCA.

On that subject, expect the anti-copyright critics to marshal its rhetorical forces to scorn the expanded role the USCO would play in general under the provisions of the discussion draft. In addition to the above-mentioned role of the CCB, the bill envisions the Copyright Office writing and maintaining standardized rules and forms for the notice and counter-notice process and giving the Register of Copyrights the authority to determine what personal information (e.g. of an alleged infringer) may be protected by a service provider. Further, pursuant to a proposal mentioned below, the USCO would maintain a list of notices for “orphan works” being used without license, after a user makes a good faith effort to locate the rightsholders.

Section 1201 – Trafficking in Circumvention Devices

This is the part of the statute copyright owners would prefer to be left intact, and many stakeholders on that side of the debate will probably be highly critical of the proposed changes in the discussion draft. 1201establishes prohibitions against circumventing technical measures used to protect copyrighted works in the digital age—an original example being the encryption software used to protect a CD or DVD against copying.

Although the discussion draft comes nowhere near the kind of holistic assault on 1201 that groups like the EFF would like to see, it does propose to substantially alter, if not repeal, the prohibition against trafficking in devices used for circumvention. We can expect rightsholders to fight hard on that one. Meanwhile, there may be room for compromise on the recommendation that the Register be given the authority to make certain types of circumvention permanently exempted, so that, for instance, good-faith researchers do not need to reapply every three years for exemptions they have received in the past. 

Section 1202 – Encouraging Attribution

This part of the DMCA, not often enforced or discussed in the public copyright conversation, prohibits the removal of copyright management information (CMI) from a work. The one proposed change to this part of the DMCA would alter the intent aspect of this conduct. As it stands, the potentially liable user must remove the CMI with the intent to cause (and presumably hide) an infringement. But the revised language would make removal of CMI with the intent to deny attribution to the author the only standard necessary to be potentially liable under the DMCA. Expect copyright critics to complain about this, though not quite so loudly as the 512 proposals.

Orphan Works

The discussion draft proposes that a user of a work be allowed to do so without license in circumstances where the rightsholder cannot be found (i.e. the work is “orphaned”). This liability exception would require the user to meet several conditions, including a documented, good-faith effort to locate the rightsholder; providing appropriate attribution to the author; and filing a Notice of Use with the Copyright Office (mentioned above).

While this proposal sounds reasonable and balanced with respect to the individual user, or perhaps the not-for-profit library, a related problem to-date has been that big, corporate entities (e.g. Spotify) have used the Notice of Intent mechanism (§109), in conjunction with their technological capabilities, to create a pseudo-licensing regime for works en masse.* And, as rights advocate Chris Castle has noted, many of the works alleged to be “orphans” have been famous songs for which the owners are not hard to locate. We’ll see how this proposal shakes out, but suffice to say, an amendment designed to serve the individual creator or educator should not become a new loophole for the likes of Spotify and YouTube to exploit.

Relocation of the Copyright Office

Given the expanded role of the Copyright Office proposed in the discussion draft, we can expect to hear the usual suspects dredge up their unfounded allegations that the USCO “cannot be trusted,” or that it is “culturally captured by the major copyright owners.” But what will really get the copyright skeptics in a lather is the proposal that reprises a longstanding notion to relocate the Copyright Office out of the Library of Congress (into the Department of Commerce), and to make the Register of Copyrights a presidential appointee. I have written a couple of posts asserting the fundamental soundness of making the Copyright Office independent of the Library, and no doubt this subject will need revisiting as the storm clouds gather around this recommendation.

Other Key Proposals

The rest of the discussion draft addresses other matters not specific to the DMCA. It contains the language of the CASE Act such as it would be added to Title 17, which is the full U.S. Copyright Law. It proposes changes to the registration process so that good faith errors made by applicants are not refused protection, if the work would be otherwise eligible for registration. It contains an amendment to abrogate a registration if the application was filed in bad faith. And it contains a provision to amend original applications to add derivative works rather than file new applications for each derivative.

In short, there are several proposals (likely uncontroversial) that aspire to streamline Copyright Office processes and/or save applicants money on fees, but we shall see where any of this goes. Beyond that, I shall spare readers any attempt to summarize all the draft recommendations in one post. As I say, we are only at the beginning of a very long process, and each of the major amendments should be discussed in deeper dives. Deep dives to follow. Some breath holding will be necessary.

*NOTE: Though prior use of the NOI process is still relevant to the discussion, it should be noted that the practice of obtaining licenses for music via NOI was eliminated by the Music Modernization Act.

What’s the Protecting Lawful Streaming Act Really About?

As with the CASE Act, anti-copyright (and even some copyright-neutral) voices reacted on social media to the fact that a bill called the Protecting Lawful Streaming Act (PLSA) was attached to the massive omnibus spending package that passed Congress last night.  What this bill will do is make enterprise-scale criminal copyright infringement, by means of digital streaming, a felony rather than a misdemeanor. So, once again, the gnashing of teeth began, alleging that Congress kowtowed to Hollywood, that this provision was snuck in as a rider at the 11th hour, and that making streaming a felony threatens all manner of innocent internet users. As usual, none of the above is true.

I wrote about felony streaming in the body of a post about the indictments against a group of men operating an illegal streaming service called Jetflicks in the U.S., and I shall republish here with minor alterations:

The distinction between civil copyright infringement and criminal copyright infringement is based on the purpose and conduct of the alleged infringer. Old-school criminal copyright infringement usually entailed mass-producing bootleg, physical copies of works like movies or record albums to sell in an unlicensed market as a substitute for the legal market. Consequently, U.S. criminal code historically identified unlicensed reproduction and distribution as felony charges that law enforcement may bring in criminal copyright cases.  But streaming audio or video (though it often implicates reproduction and distribution) has been considered a public performance of a work, and unlicensed public performances are, historically, misdemeanors. 

But clearly, the kind of harm that will be caused by enterprise-scale infringement via online streaming is greater than any amount of counterfeiting that was done in the pre-digital age. If selling ten thousand bootlegs out of a warehouse in 1988 was a felony, then how can it make sense that illegally streaming tens of thousands of works to tens of millions of viewers is considered a lesser crime?  A letter written in July of 2019 by the Register of Copyrights to the Senate Judiciary Committee, IP Subcommittee states, “Under this system, criminal streaming piracy, no matter the dollar amount it involves or the number of works affected, is de facto treated as a lesser crime than the illegal downloading or reproduction of the exact same content.”

So, the distinction that made mass infringement via streaming a misdemeanor was a technicality, a loophole, that no longer applied to the real world of digital-age piracy for profit. The PLSA, which was not conjured in the wee hours of last night’s omnibus spending bill haggling, simply closes the loophole. It has no bearing on any individual users, legal streaming services, or even individual streaming of an infringing use; and it changes nothing about the nature of civil copyright enforcement. So, unless you are building the next Pirate Bay or Megaupload or Jetflicks—and doing so within the reach of American jurisdiction—you would never need to know about this change to the criminal code.

As usual, the internet industry, with the support of its network of anti-copyright pundits, simply oppose enforcement at every opportunity, and this was one of those opportunities. That said, it is true that, unlike the CASE Act, Hollywood does have an interest in felony streaming. And why wouldn’t they? If we’re using “Hollywood” as a generic term for motion picture producers, whose products do we think are illegally streamed in mass quantity by pirate enterprises? But like the CASE Act, the proposal to close the streaming loophole has been in public discussion for many years for the reasons I have stated, and it is political theater to allege that Congress suddenly “caved” to Hollywood on this matter.

In reality, the PLSA is the result of months of negotiations between content industry representatives and parties representing online platforms and user communities. Because the bill was narrowly tailored—at the insistence of those purporting to represent users—groups that usually express concern with any copyright legislation agreed to the final language of the bill and even went on record at a House Judiciary Hearing saying that they were not opposed to the bill.

So, nobody caved to Hollywood, as Techdirt will tell you, because the legislative amendment just makes common sense to anyone looking at the issue; and the only people this change will affect negatively are criminal operators, who cause economic harm to a whole segment of middle-class workers. Meanwhile, the handful of critics, shouting from their rather well-feathered aeries in academia and industry-funded think tanks, should maybe shut up about this one and find something real to complain about. We’ve got plenty.

Image by: Elnur