Tag: Boing Boing

Jeers of a Clone: Doctorow Lies About the CLASSICS Act

If Cory Doctorow writes an article about copyright, “it’s only there trying to fool the public.”

For instance, his recent missive about the CLASSICS Act in the venerable Boing Boing (which I assume is the sound inside its editors’ heads) is a fabrication rich in offensive overtones. Not only does he repeat the fiction that this bill extends copyright terms for pre-1972 sound recordings, but he actually invents a legislative process out of thin air.

As explained in more detail in this post, the CLASSICS Act is relatively narrow legislation that would allow musical artists who recorded songs before February 15, 1972—many of them are still living—to receive royalties in the current market for certain types of digital broadcast performances.  Quite simply, an artist with a song recorded after that date is eligible for royalties (e.g. from satellite radio), but the same artist with a song recorded before that date is ineligible for royalties for the same use.  In testimony supporting CLASSICS before the Senate Judiciary Committee, singer/songwriter Smokey Robinson presented the following:

“…some digital radio company lawyers found a loophole.  Those corporate lawyers asked, ‘What if we don’t pay for classic pre-72 recordings under the new federal license because they are covered under state law, and then what if we argued state laws are too old to cover digital radio?’  Then, they figured, they could profit off some of the most valuable recordings of all time, paying legacy artists nothing at all.”

Because a good story needs a good villain, Doctorow enigmatically cast Senator Orrin Hatch in this role and reported that the senator is personally responsible for combining CLASSICS with the otherwise-popular mechanical licensing bill known as the Music Modernization Act. This is imaginative to the point of incoherence. CLASSICS was in fact merged with the MMA and the AMP Act under the aegis of the House Judiciary Committee to form an omnibus music copyright bill, which passed the full House in April with an extraordinary tally of 415 to 0. It then moved to the Senate where it acquired 17 bi-partisan co-sponsors.  If for no other reason than the fact that Hatch is a member of the wrong chamber, he had nothing to do with “adding” CLASSICS to the MMA.

Perhaps Doctorow needs to review the whole House-to-Senate legislative process, but nearly all copyright legislation begins in the House Judiciary Committee.  Meanwhile, Cory’s style of blatant propagandism is especially obnoxious coming from pundits who imagine themselves champions of democratic principles in the digital age.  By “Hatching” this bogus narrative, he obfuscates the real process whereby a bill like CLASSICS emerged after several years worth of hearings held in multiple cities, and after gathering testimony from a variety of stakeholders. Even a rudimentary knowledge of Congress belies the absurdity of claiming that Senator Hatch personally—not to mention belatedly—has been pulling strings on Capitol Hill for his pals Smokey Robinson and Dionne Warwick.

In fact, to emphasize Doctorow’s hypocrisy, readers might notice that the URL for his “article” doesn’t even mention the legislation but is simply titled “orrin-fucking-hatch.” Why? Because Boing Boing isn’t a source of information.  It’s a click-bait site using SEO as a fly-catcher to grab readers already opposed to Senator Hatch on policy unrelated to music copyright.  I don’t have much in common with the senator’s views myself, but Doctorow arrogantly piling garbage on this bonfire of bullshit should be disabused of any notion that he’s doing the Republic any favors.

“The records of the 50s and 60s aren’t called ‘classics’ because of their age.  They’re called classics because of their greatness.  They still resonate today.  They add value to our lives and bring people together.  They define America.”  — Smokey Robinson —

In Doctorow’s version of the CLASSICS Act tale, not only is a senator authoring bills in the House, but he is allegedly also extending copyright to 144 years for all pre-1972 sound recordings.  (This is like saying Cory Doctorow is entirely responsible for that alien attack in Poughkeepsie.)  As addressed in my earlier post—and in considerable detail by Terry Hart on Copyhype—CLASSICS actually leaves in place the same 2067 expiration date that exists right now for this body of sound recordings.

Nothing in the public domain is being re-protected, and no new ambiguity is being introduced that will adversely affect librarians and archivists.  To the contrary, CLASSICS would serve to clarify important protections for these institutions that only exist in the federal statute but which do not apply under state law.

Beyond the key facts being misrepresented, there is another dimension to the recent assault on this bill that is hard to overlook.  Many of the artists who stand to benefit from CLASSICS happen to be people of color because the period between the 50s and the 70s is the same era when artists of color gained wider mainstream acceptance in the market. (Hell, if this were just the Ray Charles Act alone, it would be worth considering.)

When I think about the indispensable music created by artists like Smokey Robinson, The Supremes, Otis Redding, Marvin Gaye et al, and then contrast all those beautiful sounds against the whinging noise of Doctorow and his pals at EFF and Public Knowledge, the duplicity of these privileged, ivory-tower “activists” takes on a whole new shade of offensiveness.  It is truly fascinating to see Doctorow and his friends insist that the quirky history of sound recording copyrights must continue to disenfranchise this particular group of artists from a share in the revenue generated by certain corporations broadcasting their music.

That’s some bizarre logic coming from the same people who love to repeat the refrain that music copyright is irrelevant because the labels “always screw artists anyway.”  Not only is this talking point an oversimplified cliché, but in this context, it’s tantamount to calling the individual artists who have endorsed CLASSICS a bunch of liars about their own careers. Moreover, the critics who portray this bill as just another “gift to labels” fail to mention that the royalty split under the §114 statutory license is 50% to the recording owner, 45% to featured artists, and 2.5% each to non-featured vocalists and non-featured musicians.

I don’t like to insert race where it doesn’t belong, but in this case, the optics are little too blatant to ignore. There are plenty of opportunities for opinion, debate, and theory on the subject of copyright law, but here’s the meat-and-potatoes of the fairly uncomplicated CLASSICS Act as Robinson put it:

“Now, I fully recognize I have been blessed and I’ve been lucky. But for many legacy musicians and their families, this issue is far more urgent. I’m 78 years young, but many artists I came up with are unable to tour or make appearances or record new material to earn a living. They should be able to rely on income from the recordings used by digital radio companies to attract listeners and earn profits. For so many, especially at this point in their careers, this is how they make ends meet. It’s how they pay their mortgage and their medical bills. It’s how they feed their families.”

Are Doctorow and his entitled entourage really comfortable saying Robinson is just wrong? And then further twist this improbable narrative by introducing Orrin Hatch as the legislative knife in Smokey’s hand? I think Cory and Friends should find something else to boing-boing about, and anyone with a basic sense of fairness should “second that emotion.”

Wait, Boing Boing Is Not Clickbait?

So, maybe you heard, or didn’t—or you don’t really care—that Playboy is suing Boing Boing (parent company Happy Mutants, LLC) for contributory copyright infringement. There are a couple of serious points to make about this case, but I want to address the funny part first because it actually informs the not funny parts.

The funny began when I read TorrentFreak’s* article highlighting the fact that Playboy’s complaint calls Boing Boing a clickbait site.  It just so happens that I read the TF post after I read EFF’s motion to dismiss on behalf of Boing Boing, referring to the site’s enterprise as journalism. And that’s pretty funny because the example below is a typical “news article” on Boing Boing. This one happens to be about Andrew McCabe stepping down as Deputy Director of the FBI:

As you see, the “journalist” in this example has typed 69 words conveying the barest information he learned from a real news source; he’s shared a quote from NBC only slightly shorter than his own content; and he’s used a photo from the Reuters News Agency that’s bigger than all the text. In fact, by area, the “article” occupies roughly the same page space as the banner ads while providing the reader with a fraction of the information he could get from a news site—adding neither commentary nor insight nor color to the most rudimentary facts. And for extra funny, Boing Boing asserts a Creative Commons license even though one would be hard-pressed to find any protectable elements in an example like the above—the author having written five sentences so common in vocabulary and structure that I doubt even the site’s limited claim of protection under Creative Commons would hold up.

A sample like this is not journalism by any reasonable definition of the term so much as it is a time-wasting diversion for a reader who might actually want substantive news or commentary about McCabe’s imminent resignation. I know, one man’s meat and all that, but it seems fair to assert that this Boing Boing post, and many just like it, exist solely for the purpose of grabbing traffic to generate ad impressions while providing no distinctive value to the visitor.

But if Boing Boing and friends bristle at the term clickbait to describe this business model, perhaps they’d prefer Wasteful Aggregators of News and Knowledge. Y’know, WANKs. For practical purposes, let’s define a WANK as any site that functions as a tollbooth—a needless step between, for instance, a social media feed and a robust source of content like a news site. Rather than operate as creators of original content, WANKs harvest Pavlovian responses to headlines in order to funnel traffic through their tollbooths, generating revenue in the form of ad impressions. Sorta, like…clickbait.

A Quick Note on Contributory Infringement

Simply put, liability for contributory infringement exists when a party knowingly induces or encourages infringement, with or without prospective financial gain. In this particular case, I would assert that profiting from traffic is the only reason for the existence of WANKs like Boing Boing; but even if we were to broaden the meaning of journalism to encompass these sites, this does not change the legal analysis because the most serious journalists in the world can still infringe a copyright or be liable for contributory infringement—even while producing far more original work than a typical Boing Boing post.

Playboy Entertainment v. Happy Mutants

So what happened with Playboy was that somebody uploaded every playmate centerfold dating back to April 1960 (477 images) to the site Imgur. And upon discovery of this trove of unlicensed photos, Boing Boing’s intrepid news team produced one of its Pulitzer-melting articles with a headline cleverly titled “Every Playboy Playmate Centerfold Ever.” At issue is the fact that the article contained two links—one to the Imgur pages, the other to a YouTube video, made by someone who’d arranged the photos into a slide show. But lest you think this was just a cheap opportunity to leverage a third-party infringement just to drive traffic, note that the reporter did stay up late to write the following:

“Some wonderful person uploaded scans of every Playboy
Playmate centerfold to imgur. It’s an amazing collection,
whether your interests are prurient or lofty. Kind of amazing to
see how our standards of hotness, and the art of commercial
erotic photography, have changed over time.”

The EFF calls the publication of these words “transformative,” asserting that even if there were grounds for contributory infringement, which they insist are not present, this perceptive insight, with its melodic repetition of the word amazing, serves as the cornerstone of a fair use defense under the first factor. I know it seems like I’m still on the funny part, but this is the serious legal stuff and is central to Boing Boing’s defense that all they did was link to infringing content while commenting on it “as journalists.”

Now, my opinion of Boing Boing’s value doesn’t technically matter. And the opinion of a court should not matter either. We certainly do not want the courts or any other branch of government deciding what is and is not journalism (especially these days). And it is also true that the prospect of incurring liability simply by linking to content can imply potential hazards, though certainly not the existential threat to the internet that EFF and its colleagues seem to proclaim with relentless consistency.

At the same time, it is not reasonable for WANKs, or any other platform, to avoid liability for intentionally exploiting third-party infringement merely by means of attaching a glib comment and calling it “news reporting” protected by fair use. By EFF’s standards, I could post unlicensed photos on this blog with captions that say little more than, “This one’s my favorite!” and call it “transformative.” And that just ain’t right.

Again, even if we were generous enough to consider Boing Boing’s 44-word “standards of hotness” post a form of journalism, it still should not pass as “transformative” under the fair use test because the post does not actually use the original work to create a new expression by adding something new. Technically, the post could stand alone without the links. It would still be lame, but it wouldn’t be infringing. As it is, the central communication of the post is, “Dude, you should look at these photos, and here are the links.” Which sounds kinda contributory.

Of course, the real key to Boing Boing’s liability has less to do with the text in the post and more to do with the headline. When the unambiguous words Every Playboy Playmate Centerfold Ever appeared in social media feeds, the goal was to trigger the aforementioned Pavlovian response whereby users click the link expecting to see exactly what the headline promises. The brief interlude when the user might read the diminutive post does not serve to shield the fact that, as indicated by the headline, Boing Boing advertised, and then provided access to, infringing content for the sole purpose of drawing traffic to its pages.

This conduct should be more than sufficient to allege contributory infringement and allow this case to proceed. Meanwhile, I actually agree with Boing Boing’s defenders that this case gets to the heart of the internet—namely the heart of what sucks about the internet, which is populated by too many opportunistic platforms that do very little other than manipulate users and exploit work somebody else has produced. If WANKs like Boing Boing cannot operate without blanket immunity from responsibility—a dysfunctional policy that real journalists have never enjoyed—then the enterprise should fail. What society would lose in that bargain is impossible to imagine.

*POST CORRECTED:  As first published, I called the TF post “defensive,” a reading into the article based on its headline, the editorial leanings of that site, and the anti-copyright views expressed by many of its readers’ comments.  Upon hearing from TF and further review, it’s fair to say that Andy’s post is much more neutral than I first described.