Tag: Authors Guild

Book bans deserve opposition, but not debate.

book bans

The Authors Guild, of which I am a member, has filed an amicus brief asking the Eighth Circuit Court of Appeals to affirm a lower court ruling that Iowa’s book ban law is unconstitutional. And of course it is. The subject barely warrants legal examination because it is impossible to draft a content-focused general book ban law that does not violate the First Amendment. And while there is reason to expect that ruling to be upheld on appeal, this cautious optimism does little to resolve the question as to why book ban efforts are more energized than they were 10-20 years ago.

Based on the titles highlighted in the AG brief, it is fair to assume that once again, conservative extremists have their righteous undies in a bunch over the inherent “evil” of sex. Iowa legislators join those in Texas, Florida, Arkansas et al. in the view that both fiction and nonfiction works that in any way confront, describe, or allude to sex, or sexual identity, are so dangerous to American youth (even teenagers who are having sex) that they must be removed from distribution.

Fear of sex is nothing new for the religious right, of course, but the current increase in book banning efforts appears to be animated by a reaction against wider social acceptance of a broader spectrum of sexual identity—i.e., a moralizing backlash against openly gay, nonbinary, and transgender persons. The sweep also includes reactions against subject matter dealing with race, and if (God forbid) any book addresses both race and sex, the earth will shake. As such, the novels of Nobel Laureate Toni Morrison make everybody’s list.

In public statements, politicians advocating book bans will portray these laws as necessary to protect children from age-inappropriate sexual content, but there is no truth to this implication, either in practice or law. Not only is there no evidence that teachers are reading Bukowski to third graders, but laws like Iowa’s are sweeping, content-focused bans for all libraries serving all students regardless of age. As old as the recurring theme of sex in book bans is the axiom that book banners, by their very nature, are illiterate. There is no more sense in arguing constitutional principles with these people than there is in talking cosmology with a gibbon.

Sure, one could explain for the umpteenth time that the five freedoms of the First Amendment very intentionally proscribe all rationales for state censorship. But for whose ears do we repeat this? Do the legislators endorsing these statutes know even a fraction of the history behind the Bill of Rights? Can they so much as theorize why the Constitution rejected the underlying frameworks of England’s censorious laws? Can they trace any portion of the narrative from the 14th century Lollards, through Henry VIII, Milton and Aeropagetica, royal patents entangled with the politics of the Church, the Puritan adventure to North America, and the next 160 years of history to get to the Constitutional Convention?

I ask because the constitutional framers (some who were total horndogs, BTW) knew that history from reading books! As such, the First Amendment, in 45 words, neatly encompasses centuries of lessons learned about successful and failed states to form a critical building block in the Plan for a nation unlike any that existed before or since the U.S. Constitution was ratified. In short, no book banning allowed—not even for allegedly “protecting the kids” from sex, an effort which, like book banning itself, has a history of spectacular failure.

Consider this detail:  the AG brief notes that among the prohibited books is “Laurie Halse Anderson’s Speak, which has helped countless teens work through the trauma of sexual assault.” By what twisted logic does banning such a book “protect” anybody from anything? Legislators with any real moral judgment should be focused on the “countless victims” of sexual assault, not the books that might help them heal. But again, you can’t explain such things to gibbons. This is what happens when alleged principles are unmoored from education—e.g., when one censors books without reading them. Any position taken to extreme will inevitably cross the boundary where the advocate contradicts his own core values, proposing unworkable, unconstitutional laws that can only be sustained by hypocrisy.

And I get it. I sympathize with the emotion. After all, it would be short work to argue that religious exercise has been the cause of more violence and depravity throughout history than all the smuttiest literature ever written. Yet, despite the mountain of evidence one might compile to support that thesis, the First Amendment is clear:  religious exercise may neither be prohibited nor compelled. And so it is with speech. It’s called democracy.

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DMCA Hearings III (Part 2): Independent Creators Must Remain in the Foreground

How many times have comments about copyright included some variation on the theme “I would not pirate, if the revenue went to the artists instead of big corporations.”? Not only is this sentiment a fallacy based on ignorance about how the creative markets work, but these insincere claims to support the real creators ring especially hollow in context to those now advocating the status quo of DMCA Section 512 (a.k.a. the Notice-and Takedown system).

“…authors and small creators who are already struggling against the tide of tech disruption of the creative industries are excluded.”

I highlight these words from the testimony of Douglas J. Preston, President of The Authors Guild, because if the Senate Judiciary Committee hears one message in response to its inquiry about the Notice-and-Takedown system, it is this:  Section 512 provides no viable, sustainable remedy for the independent creator.

American copyright law’s first animating principle is to secure the exclusive rights of the individual author in order to provide an incentive to produce and distribute new works. One glance at Preston’s testimony, listing the number of domestic online platforms that currently support rampant book piracy, and it is easy to understand why no writer—or sole creator in any medium—can possibly afford to pursue infringement at the volume and speed at which it persists.

Google, eBay, Facebook, and LinkedIn are all cited in Preston’s account of the various ways in which authors are confronted with ads, links, or user-generated sources to obtain pirated digital copies of their books. “Google makes it particularly easy to get to these pirate sites and unknowingly buy pirated copies,” Preston states. 

Members of the committee should underline that sentence. Because those words unknowingly buy refer to a customer who does not intend to pirate (is not looking for a freebie) but has been misdirected by Google’s search engine toward the purchase of an infringing copy instead of a legal one. Nevertheless, Google and its industry colleagues have insisted upon the narrowest interpretation of their responsibilities under the terms of DMCA, while asserting in these hearings that Section 512 is working “as intended.”

Testifying on behalf of the Internet Association (an organization founded concurrently with the anti-SOPA campaign of 2011/12), Jonathan Berroya presents a picture of the DMCA operating very well for all parties. “The balance Congress sought to achieve in section 512 in 1998 is not askew,” he states. “Indeed, the legislative intent of fostering collaboration among stakeholders and the growth of a robust and innovative internet has been decidedly achieved, resulting in the development of cutting-edge solutions to infringement and other voluntary measures.”

Berroya could not have used the word collaboration more often in his testimony without it becoming unseemly. But after years in which the major OSPs grew their dominant market positions, partly by refusing even to cooperate with rightsholders, the Internet Association, can, at best, half-heartedly support its “collaboration” claim by pointing to various agreements among OSPs and corporate rightsholders (e.g. YouTube & major labels). And even this hodgepodge of imperfect licensing, tracking, and enforcement arrangements does nothing for independent creators, who lack the resources and opportunities that are available to industrial rightsholders.

This is why Mr. Preston’s presentation, on behalf of book authors, makes what may be the most salient point in the 512 review—that most creators act as their own copyright enforcement departments in addition to doing the work of authorship. Copyright law has always envisioned that the owner would enforce his own rights, but not at a scale of tens of thousands of infringements each year.

As I wrote in my first post about this hearing, the internet industry tends to bring generalizations and a litany of irrelevant talking points to a debate where independent rightsholders present both quantitative and qualitative evidence describing their actual experiences using Notice-and-Takedown. For example, the Internet Association highlights the value of the streaming market to the entertainment industry and consumers, which is true but largely unrelated to the question Congress is asking.

Aside from the fact that the streaming market has some bugs in it (e.g. songwriters are being clobbered by artificially low royalty rates engendered by the imbalance of the 512 immunity regime), the success of popular platforms like Netflix, Hulu, Amazon Prime, et al is not the result the Notice-and-Takedown/immunity provisions of 512. On the contrary, these types of platforms were fostered by Title I, or Section 1201, of the DMCA and are, therefore, a subject for a different hearing. Almost as irrelevant is the Internet Association’s attempt to misdirect the committee’s attention to foreign-based pirate sites …

“… it should be noted that most…infringement occurs overseas, beyond the reach of the U.S. Copyright Act. The U.S. government must keep up its pressure on foreign governments to pursue extraterritorial websites entirely dedicated to piracy and should avoid the temptation to subject legitimate platforms to unduly onerous standards because the most egregious offenders are out of reach.”

Although it is true that pirate sites operating overseas are the largest facilitators of mass infringement, the more relevant issue before the committee remains the substantial amount of infringement facilitated by some of the largest domestic platforms. And this includes facilitating access to foreign-based sites. As Berroya himself notes, the U.S. Copyright Act does not reach these foreign actors, which is one reason rightsholders have proposed various methods to starve these site operators of user access or revenue, or both. But to date, the major members of the Internet Association have spent millions in PR and lobbying dollars opposing every initiative in this regard, both in the U.S. and abroad.  

So, Berroya’s allusion to foreign piracy reads like another round of shell-game—one that is very familiar to rightsholders—in which the internet industry pays lip service to solutions like “keeping up pressure on foreign governments,” which they will then oppose through the very large public megaphones that they themselves own and operate. In some cases, even the aforementioned voluntary anti-piracy measures have been strenuously criticized by the “digital rights” groups whose funding comes from the same companies comprising the Internet Association.

Finally, echoing the sentiments of other critics, the Internet Association repeats the fallacy that the Copyright Office, in its Report on Section 512, neglected to consider “the public” as a stakeholder. Berroya testifes …

“While it is understandable that the Copyright Office would focus on the impact of section 512 on copyright owners and copyright law, an assessment of the DMCA safe harbors is incomplete without meaningful consideration of other values important to users, such as free speech, economic and cultural citizenship, and privacy.”

Although that sounds very pretty, it is more smoke fogging the debate. The speech right is not protected by online platforms, and copyright infringement is not protected speech. It is hardly conclusive that “economic and cultural citizenship” has been vastly improved by digital life for a majority of citizens. And with regard to privacy, most people can easily identify which members of the Internet Association have been caught invading privacy and abusing user data. Certainly, it is not the authors who are harvesting and selling data about millions of Americans. 

So, let us stay focused on the subject at hand, which is whether Notice-and-Takedown is working to balance the needs of OSPs and rightsholders. And let us not be distracted by references to online activity or technological developments that have little or nothing to do with the DMCA. It is hardly surprising that the Internet Association, with its membership of the wealthiest and most powerful OSPs in the world, claims that Section 512 is working as intended. No doubt it’s working beautifully for them.

But it is also not surprising that the members of the Senate Judiciary Committee sound skeptical about the fulfillment of 512. This probably has a lot to do with the fact that instead of merely offering platitudes about the value of creative works, authors present hard data showing how often those works are being pirated and by whom. From this evidence, it is very easy to see why no individual creator stands a chance against that tide, which explains why the internet industry would rather draw everyone’s attention elsewhere.

Photo by: fizkes

Google Books & The Semantic Maze of Fair Use

Photo by author.

This week the Supreme Court declined to consider the Authors Guild v Google case, which lets stand the Second Circuit Court ruling that Google’s use of scanned published works for its search tool Google Books constitutes a fair use.  Various pundits and advocates have hailed this as a victory for the fair use principle.  In fact, I saw a headline the other day on Facebook that began with the words “Fair Use Wins …”, and although the decision is unquestionably a win for Google, the fair use principle actually remains mired in a semantic confusion about which the high court might have at least provided some clarity.  It’s all about the word transformativeness.

The fair use doctrine was added to the Copyright Law as part of the 1976 Act, and its original intent was to protect various types of expressions—commentary, parody, education, artistic remixes, reportage, etc.—that by necessity made limited and conditional uses of copyrighted works.  I’ve written longer posts about fair use doctrine in general, and won’t repeat all that here, but readers will remember that there are four interrelated factors to be considered* in assessing whether a use constitutes a fair use.  But in 1994, in a landmark case that was heard by the Supreme Court called Campbell v Acuff-Rose Music, the fair use doctrine grew a new appendage called “transformativeness” that has, in the age of the internet, not only become something of a fifth factor that seems to override consideration of the other four, but also has not been clearly defined as a term of art in legal practice.

As I continue to learn from my attorney friends, some of the words we use in everyday language become terms of art in the legal world, which generally means that court rulings have shaped, narrowed, or expanded the dictionary definition of key terms.  For instance, based on the current ruling by a federal court, the word articles can only mean “physical objects” with regard to the International Trade Commission’s authority to prohibit the importation of illegal goods.  So, if Congress wants to grant that body the authority to restrict the importation of digital data for illegal purposes, they’re probably going to have to rewrite the law.  (More about that another time, perhaps.)

The concept of “transformativeness” in fair use parlance was introduced by Judge Pierre Leval in his paper “Toward a Fair Use Standard” published in the Harvard Law Review in 1990, and coincidentally it was Leval who wrote the decision in the Second Circuit’s ruling in Authors Guild v Google.  But even though the “father of transformativeness” himself has ruled in this case, there is still much confusion about the term and what it means when considering fair use. As Thomas Sydnor of the Center for Internet, Communications and Technology Policy at the American Enterprise Institute writes about the situation:

“As cases applying this judge-made “transformativeness”-based approach to fair use accumulate, that term becomes increasingly incoherent, inconsistent, and counterintuitive. Collectively, its incoherence(s) now threaten to turn what was once a productively flexible multi-factor balancing test into little more than a perfunctory recitation of factors ending in judicial ipsa dixit – “because I said so.” Under such circumstances, rule of law cannot persist.”

Sydnor further points out that the word transform already exists in the 1976 Copyright Act in reference to the preparation of “derivative works,” which is another term of art to describe works such as spin-offs or adaptations into other media. These rights belong exclusively to the copyright owner of the original work and should not be confused with the more casual way we might use the word derivative to describe, or even criticize, a work that is mimicking some other work.  For instance, the above-mentioned Campbell case involves a work of parody that we might describe in common language as derivative, but not so in the context of copyright law.

Campbell v Acuff-Rose Music involved a new, expressive work, specifically 2 Live Crew’s raunchy parody of the song “Oh, Pretty Woman” co-written and originally performed by Roy Orbison.  The court held in Campbell that “the more transformative the new work, the less will be the significance of other factors.”  In this case, the court is referring to the extent to which 2 Live Crew “transformed” the original song to make a new song.  By contrast, though, Google does not “transform” any of the original works to create new expressions but instead uses the contents of the works to create a new search service called Google Books.

So, with these two rulings, we are looking at two significantly distinct definitions of the word transformativeness.  The first refers to modification of an expressive work in order to make a new expressive work.  The second implicitly refers to transformation of the external world (society) by the introduction of some new capacity (i.e. function) it did not have before.  This is particularly relevant because the language used by SCOTUS, asserting that “transformativeness” should “lessen the significance of the other factors,” can only rationally be applied—if the spirit of fair use doctrine is to be kept intact—to the first definition in which an original work is “transformed” to create a new, expressive work.  In the second usage of the word, in which the external world is assumed to be transformed by some new functional use, then “transformativeness” becomes too heavily weighted against the other factors, thus giving (for instance) a giant, wealthy service provider extraordinary latitude to define just about anything it does as socially “transformative.”

If the courts are going to apply this second definition of “transformativeness,” then it seems the consideration ought not to carry any more weight than the other factors because the second definition provides a basis for large-scale, corporate-funded uses of millions of works in a way that the first definition does not.  In other words Google Books may be deemed a fair use in the end, but it is not sensible that the application of “transformativeness” in Campbell be applied.  As it stands, the courts appear to be giving the same weight to “transformativeness” while using two very different definitions of the word.

Semantically speaking, I would argue that transformative is not exactly the right word to use when one specifically wants to describe some measure of modification to an existing thing like a creative expression.  The term is problematic because it begs exactly the confusion we now have in the courts—because transformative more properly describes the effects of an invention or expression to the external world (e.g. electricity was transformative in that it made modern society). While it would not be wrong in common parlance to describe, for instance, Jeff Buckley’s rendition of Leonard Cohen’s “Hallelujah” as “transformative,” even this usage would generally tend to convey that both song and listener are in some way transformed.  But in law, this is too vague.  This is why the attorneys refer to a term of art –a definition that is established within the language of the law that may or may not conform to everyday usage.  Sydnor points out that Leval himself provides little guidance in this regard when he quotes the judge thus:

“The word “transformative” cannot be taken too literally as a sufficient key to understanding the elements of fair use. It is rather a suggestive symbol for a complex thought….”

 “[T]he word “transformative,” if interpreted too broadly, can also seem to authorize copying that should fall within the scope of an author’s derivative rights. Attempts to find a circumspect shorthand for a complex concept are best understood as suggestive of a general direction, rather than as definitive descriptions.”

Right. I’m no legal scholar, but I think the concept “transformative” is a troublemaker.

Because the precedent SCOTUS ruling in Campbell is based on the use of “transformativeness” to describe the modification of an expressive work, it would make sense to settle upon this definition and to seek another term for considering functional uses akin to Google Books. As CEO of Copyright Alliance Keith Kupferschmid writes in a post on the organization’s website:

“The fair use doctrine is an equitable doctrine, but in functional use cases it hasn’t worked that way because the transformative use test is ill equipped to effectively balance the competing interests at stake in these cases.  Fair use analysis should take into account not only the interests of owners and users but also the underlying policy objectives of the copyright law.  To account for these factors in a reasonable and balanced way, it is time for the courts to begin using a functional use test.”

Unfortunately for rights holders, the confusion about “transformativeness” that leaks into general consciousness results in a casual logic, which assumes that simply changing the context of a work, like placing a photograph on one’s Facebook page, is “transformative” enough to make a use fair.  Google Books is a misstep in that direction, and if this becomes the application of fair use, then that’s the ballgame.  There are no copyrights left. I can take your songs or images, put them on this blog, call it “transformative”, and get away with it.  That may be an attractive proposal to the internet industry, but it is far from the original intent of fair use doctrine in the copyright law, which was to protect expression, and it would have disastrous effects on the professional creative industry as we know it.

*Changed from original publication, which stated that the factors are considered by a three-judge panel.  As pointed out by Anonymous commenter, this is only true in an appellate court. A mistake I made in haste owing to the fact that many famous fair use cases are famous because they’ve gone to higher courts.