Masnick Makes a Hash of Fair Use & Censorship

Photo by Pond5
Photo by Pond5

In an effort to conflate president-elect Trump’s rhetoric on censoring the press with copyright protection, Mike Masnick at Techdirt accuses the News Media Alliance of seeking to “whittle down” fair use. He further says this will only leave journalists vulnerable to the kind of censorship Trump has threatened by amending libel laws.  There are too many holes in Masnick’s post to address efficiently, so I’ll stick with the main point about fair use doctrine. The Newspaper Association writes the following:

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.”

For starters, this statement isn’t asking anyone to “whittle down” fair use. Instead, the News Media Alliance is simply asserting what many copyright experts and rights holders have observed, which is that the “transformative” standard is in fact a relatively new and often-vague principle that has become something of a vestigial fifth factor not codified in the 1976 Copyright Act.  In fact, “transformativeness” began as a measurement of creative transformation in the landmark case Campbell v Acuff-Rose but has since been applied in broad contexts in which uses are “transformative” of something other than the original work to create a new expression.  

So, “transformativeness” can exceed the original free-speech motivations for codifying fair use into the federal law in the first place.  And that in itself is not inherently bad; we want law to be elastic to a certain extent, otherwise copyright itself could not have adapted to changing market and technological conditions. 

Having said that, however, the “transformative” standard has come dangerously close to asserting that simply using a work in a new context—like posting it on social media—is “transformative” enough to make the use fair.  So, the Alliance is not attacking fair use doctrine at all, as Masnick asserts, but is rather seeking to mitigate what many rights holders view as an irrational expansion of the doctrine until it ceases to be an exception at all.  

The part where Masnick accuses the Alliance of playing into Trump’s censorship hands is just a malarky cocktail well spun.  He writes the following:

“While [Trump] was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.”

Masnick is mashing up unrelated topics to argue the interests of OSPs like Google and taking the opportunity to use the words copyright and censorship in the same sentence. As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the “transformative” standard being referred to by the News Media Alliance. 

For instance, I noted in a past post that a FOX Network initially sought to argue that its use of another news agency’s photograph was “transformative” simply because it was posted on their Facebook feed.  That argument didn’t get very far, but it’s the kind of argument rights holders are nervous about arriving in the courts; and it has nothing at all to do with legitimate concerns about a president threatening to use libel laws to silence the press. For another perspective on how the “transformativeness” standard can come very close to effectively obliterating copyright, see this post about TVEyes v FOX News.  

As usual, the internet industry and its advocates behave as though their platforms, which make unlicensed uses of all manner of works, are synonymous with free speech or freedom of the press.  From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright.  That is ludicrous.

Copyright Still Essential to Economic Future 

iipa-infographicThere is a lot of anxiety about jobs these days and with good reason.  The subject of trade has a lot of people on edge, and we’re only just beginning to talk seriously about the very real prospect of automation killing middle-class jobs in places other than the obvious repetitive factory work.  As theoretical physicist Michio Kaku predicts in a video on BigThink.com, AI won’t replace everything.  “If your job is repetitive, if your job simply involves the friction of capitalism, that is, middlemen work, your job is doomed.  However, if your job involves creativity, imagination, innovation, thinking, experience, leadership, hey… there’s a bright future for you.  Because the economy itself is changing from commodity-based capital to intellectual capital.  Intellectual capital cannot be mass produced,” Kaku says.

2012 was the first year the “core copyright industries” broke the trillion-dollar mark for contribution to U.S. GDP, and that number has grown steadily since, with 2015 weighing in at $1.2 trillion according to the latest report from the International Intellectual Property Association (IIPA.)  As in the past, the new IIPA report shows the core copyright industries as growing at a faster rate (4.81%) than the entire rest of the American economy (2.11%). What it defines as the “core” includes industries directly associated with copyright ownership (e.g. publishing, movies, music, software), which continues to support about 5.5 million fairly high-paying middle-class jobs.  The IIPA also notes that what it defines as the “total copyright industries,” including those that derive direct benefit from the “core industries,” as supporting over 11 million jobs.

Critics of these types of positive-outlook reports often respond by asking rhetorically why then do copyright owners complain about infringements like large-scale piracy when they seem to be doing just fine?  To me, this is a bit like saying, “The air is breathable today, so why do we need environmental protections?”  Piracy is only one threat to copyright; another is a mindset that the purpose of copyright is largely obsolete in the digital age.

It is also important to maintain a perspective which distinguishes between macro views and micro views.  In the big picture, these types of reports from the IIPA reveal that investing in intellectual property overall remains a robust and positive sector.  This macro view will not, however, reveal specific subsections of the “core industries,” like the independent photographer whose works are appropriated in ways that eat away at the combined revenue streams for his small business.  I addressed a similar matter in this post with regard to the difference between major motion picture profitability writ large versus the effects of piracy on an independent production.

It has long been believed that as the market becomes more automated, the jobs that depend upon human creativity will never be taken over by the robots.  As Kaku points out, despite what the sci-fi writers say, AI doesn’t perform these tasks particularly well.  There are plenty of computer scientists who might beg to differ and certainly at least a few who insist that one day an AI will compose and perform symphonies, write novels, and make movies. But before we time-travel all the way into that reality, we currently live in a market economy that needs jobs to put food on the table.  And for the moment, the investment in copyright-based industry appears to offer better returns than many other sectors.

In this regard, the presidential transition represents a tricky moment for some of us.  The president I like, and I suspect a lot of creative people like, has not been good for IP and has been particularly starry-eyed when it comes to Silicon Valley’s influence on copyright policy.  I have repeatedly asserted that when many of the OSPs say “innovation,” what they really mean is non-creative destruction, which siphons value from certain kinds of labor without replacing it with new and comparable forms of labor opportunities. Now, as Andrew Orlowski observes in a new article for The Register, president-elect Trump’s Strategic and Policy Forum has “snubbed” the bigwigs of Silicon Valley, which Orlowski suggests reflects an understanding that Facebook and Google are simply not major job creators.

Personally, I’d like to see a balance on that forum. I don’t think we’re putting the internet on the shelf, and we’re certainly not going to effectively manage the 21st century economy by pretending digital technology and networked systems don’t exist.  But there’s also no denying the fact that the Obama administration was remiss in properly valuing the economic and social significance of copyright-based work, as evidenced by tone-deaf policies like the DOJ ruling on 100% music licensing, the FCC “unlock the box” proposal, and to an extent, even the policy direction of the Library of Congress.

One way or another, it would be great to see copyright become non-partisan again like it’s supposed to be.  Because no matter what other issues are in play, copyright supports one aspect of American life that I think we can all agree on—and that’s the bounty of creative works nearly everyone taps into every day. That’s the fun part of America, remember? These works don’t generally pollute the environment, cause adverse side-effects on users, or even break treaties with indigenous tribes.  And the fact that the fun industries sustain millions of good jobs, contribute nearly 7% to the U.S. economy, and add up to $177 billion in exports is kinda cool. Why wouldn’t we protect that?

Creators, Don’t Get Fooled Again

Photo by alexskopje Pond5.
Photo by alexskopje Pond5.

In the current political climate, I imagine many artists, authors, and journalists will continue to speak up about a wide range of civil rights.  While they’re at it, they should not forget their own rights.

For five years now, I’ve written in defense of copyright as a civil liberty—as a property right, a labor right, and a force for strengthening the First Amendment despite the skeptics who insist the opposite is true. Because without in any way imagining what American creative output would become, the Framers did an interesting thing when they gave Congress the constitutional authority to write intellectual property laws.

As students of the Enlightenment, the Founders knew that the United States, with its population of three-million mostly agrarian citizens, was never going to be a mature country without investing in art and science.  They also knew that the young war-weary nation could not afford a national endowment for such luxuries; and at the same time, they were naturally wary of European models in which both the sciences and the arts were funded and directed either by the state or the nobility (See Article 1, Section 9 on the no nobility thing).

The intellectual property clause of the Constitution was an expression of both practicality and principle.  Creating an incentive for the author or inventor to make his own investment in his work reflected—in my view—the best intentions of the Framers to ennoble the individual, hoping that doing so would enrich the nation overall.  By the mid 20th century, the theory proved itself with the U.S. leading the world in the output of creative works. But intertwined with the commerce came the diverse range of expression that became the quintessentially American voice—and that voice was unavoidably political. A half century before women could vote, the suffragette and abolitionist Louisa May Alcott was one of the first truly American authors whose writing saved her family from economic ruin because one right she did have was the ability to register a copyright.

Fast forward to current events and the general reaction to the president-elect’s “demand” for an apology from the cast of Hamilton.  Sure, that was probably a bit of tactical diversion, which spawned mostly satirical responses wanting to remind the  Trump team what the First Amendment says, but the important piece of the story is Hamilton itself.  Because copyright gave Lin-Manuel Miranda an incentive to invest his sweat equity in creating the show, that became the basis for the risky investments which produced the hit which provided a platform for a company of artists to speak to an elected official about matter of concern.

In part, what’s being communicated is that the financial success of the artists reflects political power (i.e. that there is a large population which supports both message and messenger).  And artists should not lose sight of the underlying rights that give them that economic, and therefore political, voice. Or to take a different macro view, the platform Twitter, which enabled Trump’s provocation and much of the response, could still fail as a business, while theater has a pretty good track record.

Regardless of one’s policy views or party affiliations, it seems clear that the magnetic poles are shifting with regard to both tone and agenda in American politics. And because many artists are moved to respond to social conditions, we are likely to see quite a few speak out in defense of civil liberties they fear may be threatened in the current environment.  This will surely include threats—perceived or real—to the sanctity of the internet as the bulwark against encroachments on the First Amendment.  This is not a new theme, and it is one that has been exploited to great effect by the internet industry as an excuse to attack legislative measures to enforce copyrights online and/or voluntary measures to achieve that goal.

The sound of the rhetoric may change somewhat in the coming months.  If one was inclined to believe that copyright enforcement would harm free speech before, one may be twice as likely to believe that message in an increasingly anxious climate.  But it still won’t be true. If there are indeed new First Amendment infringements to come, they won’t be grounded in copyright policy.  To the contrary, no matter who occupies the Oval Office, or how cybersecurity practices evolve, the fact remains that a failure to effectively protect and respect creators’ rights online only disenfranchises the professionals whose voices have always been essential to democratic principles.

In his Friday’s Endnotes for his blog Copyhype, Terry Hart cites an appropriate quote by Lyndon Johnson from the dedication of the John F. Kennedy Center for the Performing Arts on December 2, 1964:

Our civilization, too, will largely survive in the works of our creation. There is a quality in art which speaks across the gulf dividing man from man and nation from nation, and century from century. That quality confirms the faith that our common hopes may be more enduring than our conflicting hostilities.