Tag: CCIA

Another Inscrutable Attack on Copyright by CCIA 

In a blog post last week for Project DiSCO (of the CCIA), Jonathan Band uses less-than-subtle sleight of hand to conflate the potential business implications of new photographic technology with photographers’ interests in copyright enforcement.  Citing a Washington Post article by Geoffrey Fowler, which proposes that ever-improving, AI-enhanced photographic tools built into smart phones are “democratizing” the opportunity for anyone to make “beautiful” photographs, Band notes that these technological advancements threaten the livelihoods of at least some segment of professional photographers.  

“Now, someone with a decent eye and a Pixel 3 can take photographs that are good enough for many events. The default aesthetics of Night Sight [a new technology] will satisfy many, if not most, potential customers,” Band writes.  And this may be true up to a point.  Off-the-shelf, push-button technical “perfection” in the hands of everyone can threaten the market value of many types of professional photographers.  

Of course that premise opens up a multi-faceted discussion about the myriad skills necessary to be a great portraitist, photojournalist, fine-art photographer, and so on.  And while that particular conversation may be very engaging, it has almost nothing to do with any particular photographer’s interest in her copyrights, and it has even less to do with the target of Band’s criticism—the copyright small-claim proposal called the CASE Act. 

“In response to this changing technological landscape, many of the organizations representing photographers have focused their energies on reforming copyright,” Band writes.  But this is a disingenuous segue because CASE is not remotely a response to changes in photographic capture technology.  The right or ability to protect an image is agnostic with regard to how the image is made.  Period.  Moreover, the premise of the CASE Act (i.e. enforcing a copyright claim for less than the cost of federal litigation) actually predates digital technology, although widespread infringement of works online does emphasize the urgent need for a small-claim remedy.

As described in this post about the House Judiciary hearings on CASE in September, one of the major complaints among independent creators is that commercial entities use their works for online marketing etc. without license.  If CASE passes, we can probably expect to see rights holders most often avail themselves of the small claim tribunal for these types of claims; and it is frankly impossible to fathom why anybody who cares about basic fairness in the market would have a problem with that.  Least of all the corporate behemoths represented by CCIA.  

Moreover, while it is true that advocacy of CASE has emphasized the plight of photographers—because theirs are the works most often infringed on the web—we should remind the CCIA and its readers that the bill proposes a small-claim option for all copyrightable works.  So, at best, Band’s focus on the latest advancements in cellphone photography have nothing to do with, say, musicians or graphic artists whose works are infringed in cases ideally suited to a small claim. 

Band’s post is, of course, a variation on a tired theme; and in that regard, I feel confident about telling the folks at CCIA (and the Internet Association also opposed to CASE) that authors of all stripes are sick to death of the following words of wisdom …

“The energy of associations representing photographers would be better directed toward helping photographers develop business models and skills that would allow them to thrive in the digital environment, rather than lobbying Congress to make changes to copyright law of questionable utility.”

Perhaps the energy of associations representing THE BIGGEST TECH CORPORATIONS ON EARTH would be better directed at playing Beer Pong than smugly telling professional creators time and again how little they they understand their own crafts and business interests.  Maybe CCIA can adapt to that new model.

 Photo source by meatbull

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.

Are we sure copyright isn’t part of the future?

You know how you can tell a social or political point of view is losing ground?  When the crazy stuff bubbles to the surface.   Here in the U.S., for example, the GOP is floundering because it has a bit of a crazy people problem.  Intelligent conservatives remain frustrated by the headline-making loons in their party who don’t realize the sexual revolution already happened.  I certainly do a spit-take just like millions of others when I read about yet another politician who wants to make gayness illegal or roll back the rights of women to the dark ages, but I temper my own reaction with the faith that at least some of this righteous regressiveness is due to the disintegration of a dying element in our politics, just fading voices trying to be heard against the tidal wave of history.  Interestingly, the anti-copyright crowd would have you believe the same thing about those of us who speak out in defense of this body of law — that we are the ones clinging to a set of old values and methodologies while the future moves inexorably away from our world view because we don’t realize the digital revolution already happened.  But even a casual sampling of observations suggests to me that it is the presumptive revolutionaries on these matters whose positions are fizzling like an unstable isotope.

Speaking broadly, I’ve been paying close attention to this debate for just about two years, and it was this time last year that I started writing and hosting this blog.  Regarding copyright, it’s clear that the largest plank in the anti platform is the assertion that this system of laws stifles innovation.  Yet, despite the constant repetition of this particular thesis, I have yet to encounter one solid example of some economy-growing innovation being asphyxiated by the alleged toxicity of copyright.  From talks and articles by the learned Mr. Lessig to the smart-aleck drumbeat of Techdirt to the un-researched RSC memo of Derek Khanna to even the testimony of innovators last week before the House Judiciary Committee, nobody has presented any tangible examples of the untapped opportunities we are failing to exploit to the benefit of our prosperity.  I keep listening for a solid example, and I would not write in opposition if I heard one. After all, I have kids who need jobs in the future; and I no more wish to protect irrelevant, economically untenable, legal systems than I want my daughter growing up in a society without rights for women.  But after two years of listening, I got nothin’.

And not unlike the minutia-madness exhibited by factions of the contemporary GOP, we seem to be witnessing a lot of desperate scrambling these days among copyright’s antagonists; and it is interesting to watch some of the wheels come off just as we head into Fall and a comprehensive review of the law.  At one extreme we have Rick Falkvinge, founder of the European Pirate Party, sounding in this recent article like the black knight from Monty Python’s Holy Grail, proclaiming victory within his grasp despite having all four limbs hacked off.  To quote musician/journalist Helienne Lindvall, “As a Swede living in the UK, I can tell you how little influence the Pirate Party has in either country. Sure, they had a perfect storm back in 2009, when the Pirate Bay trial coincided with the election for the EU Parliament, managing to get two reps elected. But in the general election the following year the party got 0.65% of the vote, so has no representatives at all in the parliament/riksdag. They still feature in media debates on copyright – after all, a little controversy increases viewer numbers – but are largely viewed as a sideshow.”

Two posts ago, I wrote about the strange macro-economics of CCIA lobbyist Matt Schruers making the astonishingly facile argument that money not spent on media still goes into the economy somewhere.  And this week, Mr. Schruers offers this report stating that search engines (i.e. Google) actually contribute very little to pirate website traffic, whence we are meant to draw the conclusion that “disappearing” search results is unlikely to have a substantial effect on infringement because most users intent on finding illegal media already know where they’re going. Aside from substantiating a generalization that seems intuitive, the report indicates that, for example, a mere 8% of traffic to The Pirate Bay comes from a Google search. It’s worth noting, though, that if this number is accurate, that’s still about 240 million page views for the largest infringing site in the world. (See also VoxIndie’s analysis of this report.)

But in the scheme of what we’re talking about, does it matter if search is responsible for 8, 15, or 30 percent of traffic to TPB when the funding industry behind the study is responsible for 100% of the PR messages that tell users media piracy is socially beneficial, and copyright is irrelevant in the digital age? Or when that funding industry profits from said traffic no matter how it travels? Because I’m pretty sure U.S. companies are supposed to be 0% responsible for supporting or profiting from illegal markets, so I personally find studies like these and the not-so-investigative journalism they spawn to be exactly the kind of distraction they’re designed to be.  It’s lobbyist hairsplitting reminiscent of the political spin used by interests who are skating on rather thin ice — and probably in the wrong direction.

Photo by caitlin_w
Photo by caitlin_w

After two years of paying close attention to these matters, I can say that both anecdotal and studied evidence suggests that most of the general public and leaders in the U.S. and abroad still support creator and author rights. In fact, very few outspoken antagonists of copyright can even bring themselves to openly say that creator rights are unimportant.  This makes sense given the likelihood that anywhere from 30 to 50% of the people you know are rights holders or direct beneficiaries of intellectual property.  As outspoken and unapologetic as musician David Lowery has been on these issues, his bands Camper Van Beethoven and Cracker have actually seen an increase in their fan base and overall support.  Chris Ruen, in his book Freeloading, states that nearly everyone he speaks to about the ills of freely downloading music come to understand the mechanics at play and to sympathize with the musicians being harmed.  In late July, the American Consumer Institute released a report indicating that 90% of Americans support and understand the value of intellectual property rights.  And just last week, US Commerce Secretary Penny Pritzker announced during a presidential visit to Music Row in Nashville, “Instead of viewing a new album as an expense to our economy, we now view it as an asset, because it supports jobs and generates revenue for years to come.”  This was in reference to a recent change in how we calculate GDP to reflect innovation, R&D, and the creation of “multiple types of intellectual property” like movies, books, music, and television.

This is where the real conversation is going.  So, it’s little surprise to see the anti-copyright crowd grasping at so many flimsy straws.