Tag: copyright registration

Fraud in Music Streaming on Legit Platforms

By now, many people who pay attention to artists’ rights have read the David Segal New York Times story published on January 13 about the amateur folk duo Bad Dog discovering their songs on major streaming platforms, but with different titles and attributed to a different creator. In what should be a surprise to nobody, it is easy to game the music streaming system and siphon from the revenue pool, even if you’ve never composed or recorded a song in your life. It’s a classic case of The Internet Giveth, and The Internet Taketh Away—because many DIY tools promoted to help new artists launch careers can be used by bad actors engaging in fraud.

“David Post and Craig Blackwell have been devoted amateurs for decades, and they’re long past dreams of tours and limos,” Segal begins. Post and Blackwell are, oddly enough, both D.C. attorneys—and cyberlaw and copyright law attorneys to boot. Although they were more interested in regaining control of their music than the revenue, their difficulties point to the fact that control is everything, especially if the artist does care about revenue.

The problem lies in the fact that anybody can create an account with a music publisher/distributor, rename and reattribute a bunch of pirated tracks, and then upload the songs to multiple platforms to hijack the revenue that belongs to the real artists. Based on the Segal article, it seems that not all publisher/distributors are equal when it comes to verifying authorship or ownership of the tracks. The article cites the service called Level used in the Bad Dog incident, and I cannot comment on the specific anti-fraud efforts of all these services.

Naturally, this scam won’t work with mega hits for a variety of reasons, but for a niche indie like Bad Dog—or more critically for the new artist who is trying to start a music career—songs that are relatively obscure make a perfect target. The scammer won’t earn much from a small heist of songs, but at scale, the dividends can obviously provide sufficient passive income to make the “effort” worthwhile. I recommend the NYT article for a full account, but two segments struck me as deserving of comment—one editorial, and one semi-mercenary.

Citing these segments out of order, first is a comment by David Post, referring to the evolution of the Digital Millennium Copyright Act (DMCA) and the appearance of Napster. “In 1997, I don’t think people were thinking about this automated operation that just sucks up unprotected material, rejiggers it to make it unfindable and uploads to platforms where they can start monetizing it. That wasn’t on anybody’s radar.” For context, Post alludes earlier in the article to his own copyright skepticism, which echoes views many would describe as “copyleft.” But this was on nobody’s radar?

Okay, maybe this exact method of scamming was not envisioned in 1997, but it hardly takes a leap of imagination to see the progress from illegal P2P to legal downloads in tandem with illegal downloads, followed by legal streaming in tandem with illegal streaming. In fact, it doesn’t take any imagination because copyright piracy for profit has been a reality for about 30 years, and there are few systems on the internet that cannot be gamed—especially if the legit platform operator lacks an incentive (i.e., is shielded from liability) to remove scammers. Also, the nature of Bad Dog’s problem did not suddenly appear in late 2023. For instance, I wrote about fake Bob Seger and music tracks owned by Spotify in 2017, which can be seen as a prelude to the kind of scam at work in this instance.

So, if Post is suggesting the DMCA needs overhaul to address workarounds to notice-and-takedown, I welcome him to the cause because professional creators have been shouting into a hurricane for at least 20 years about the near uselessness of the provision as a viable remedy to piracy. Given Post and Blackwell’s day jobs, I do wonder whether they only just discovered the issue the moment it affected their music, but in any case, the DMCA brings me to the other quote from the article that I want to highlight:

To retrieve their songs, Mr. Post and Mr. Blackwell sent out what are called takedown notices, or formal requests to remove pirated music, to a bunch of different sites. The band members used their SoundCloud page to demonstrate that their recordings predated all the uploads on the streaming platforms.

As stated, the DMCA takedown provision is middling at best. Segal reports that Amazon and YouTube removed the pirated tracks quickly, but Apple and Spotify did not. What struck me about the above paragraph, though, is the duo’s use of their SoundCloud page to prove priority and ownership of the work, which is kind of a digital-age version of mailing a copy to oneself—a.k.a. the “poor man’s copyright,” which is meaningless as a mode of legal protection. That brings me to the slightly mercenary point I wanted to make that the musical artist in this same position would find it both easier, and possibly more effective, to send the Copyright Office registration numbers associated with the works that should be removed by DMCA takedown.

One aspect of a registration is that, by operation of law, it is prima facie evidence of ownership. Walk into federal court with those registration certificates, and the burden is on the opposite party to prove that you’re not the owner of the work. In fact, without registration, you can’t walk into a court with an infringement claim, but with regard to a DMCA takedown—especially sent to one of the major platforms—the registration is literally a government seal establishing ownership of the work. It doesn’t guarantee that every platform will expeditiously comply with a takedown request, but it does give them a good reason to do so.

Further (and this is the mercenary part) because I am a passionate advocate for the rights of independent creators, I highlight this incident as the co-founder of a software business called RightsClick. A suite of tools designed to make copyright management easy for the entrepreneurial creator, the app facilitates fast, simple registration that simultaneously builds a database of Titles with their associated registration numbers. Thus, the indie musician in the same position as Mad Dog could look up those numbers in about two minutes and include them in a DMCA notice. Again, not a guarantee of compliance by the platform, but a stronger incentive. Including registration numbers is, after all, what the attorneys prefer to do when they send takedown notices.

I hope readers will forgive the plug for RightsClick in this instance. I generally keep IOM commentary and that venture separate, but this story seemed like a good moment to don both hats. Regardless, the point worth emphasizing is that indie artists should register their work with the Copyright Office. No creator should ever be required to prove they own the work requested for takedown—the provision is already subject to penalties of perjury—but to the extent the platforms stall or play games in this regard, a registration number is a lot better than any other evidence one might otherwise provide.

 

UPDATE/CORRECTION:  Thanks to a representative of Bad Dog, who wrote to tell me that the duo did file a registration application for the album The Jukebox of Regret very soon after discovering the music had been pirated. This same source also states that the music was pirated within one week of publication to SoundCloud, hence the immediate use of that information to show priority and ownership. Based on this information, I wish to correct any implication that Post and Blackwell completely ignored copyright registration, though I would encourage indie artists to register before distributing work to the market. This story proves how quickly your work is likely to be pirated.

Unicolors v. H&M Raises Some Thorny Issues for Copyright Owners

On June 1, the U.S. Supreme Court agreed to hear a case of a highly clerical nature, but one of particular interest to photographers and other visual artists who typically register multiple works in Group registrations with the Copyright Office. To reduce filing fees and provide some organizational structure to certain applications, the Copyright Office offers various types of Group registrations. In Unicolors’s case, it registered 31 designs in 2011 under a Group registration that allows individually copyrightable, “unpublished” works to be combined in a single application in instances where they will eventually be made publicly available on a specific date (i.e. “published”) as a unit.

An example of this type of “unit” registration presented by the Copyright Office is a board game, which may have pictorial, literary, and sculptural works that could be individually registered but which will be sold to the public as a bundle of works comprising a single unit as a game. But just to keep things lively, there are other Group registration options, some of which have been adopted since 2011, when Unicolors first registered its designs.

For instance, photographs (and only photographs) may be registered in Groups of up to 750 images under a single title (e.g. “Safari 2021”).* All photos in a Group registration must either be “published” or “unpublished,” but there is no requirement that the “unpublished” photographs anticipate a simultaneous publication date, and the “published” photographs are only required to share the same publication year. Confused yet? Stay tuned.

Enter Unicolors, Inc. v. H&M Hennes & Mauritz, L.P.

Unicolors makes original designs for use in textiles, and in 2015, a jury found that retailer H&M copied one of its designs and, thus, awarded Unicolors damages and legal fees for copyright infringement. On appeal to the Ninth Circuit, however, H&M argued that the relevant Group copyright registration should be invalidated because the Group comprising 31 designs, included 9 designs that Unicolors had “confined,” meaning that they were temporarily exclusive to certain customers. H&M argues, therefore, that Unicolors registered these 9 works in the Group knowing that they would not be “published” simultaneously with the other 22 designs.

The Ninth Circuit agreed with H&M. It reversed the jury decision and remanded with an order that the Register of Copyrights be consulted as to whether Unicolors’s error, if known at the time of application, would have caused the Copyright Office to deny registration for the Group filing. As a reminder to readers, under U.S. law, obtaining a timely response to an application from the USCO is a prerequisite for U.S. works in order for the copyright owner to bring an infringement action against a defendant.[1]

The Issues

Naturally, neither the Copyright Office nor the courts seek to invalidate copyright registrations for applicants who make honest mistakes or trivial errors. And in 2008, the ProIP Act reinforced this principle by amending the copyright law such that Section 411 now states that a certificate of registration may be valid, even if it contains inaccuracies, unless:

(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and

(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.

On that basis, and with concern for its constituencies, the American Society of Media Photographers (ASMP), joined by five other creators rights groups, filed a brief supporting the petition for a writ of certiorari with the Supreme Court, arguing that even though Unicolors knowingly filed a Group registration for “confined” and “unconfined” designs, this does not meet the standard intended by the statute. Here, the petitioners assert that an applicant must provide inaccurate information with the intent to deceive the Copyright Office in order for a court to invalidate a registration pursuant to a lawsuit.

Petitioners cite a circuit split (between the 9th and 11th Circuits) on this exact question and further argue that if the Court disagrees with the intent to deceive standard, this would disturb case law sounding in trademarks and patents. Thus, the Court granted cert on this one question, and it is a big bouncing ball to watch for copyright owners in this case. Even if the facts could ultimately show that Unicolors provided false information with the intent to deceive, the important issue is whether SCOTUS will agree that such intent must be demonstrated in order for a court to invalidate a copyright registration.

H&M argues that the intent to deceive (i.e. commit fraud) does not exist in a plain reading of Section 411 and, therefore, Unicolors’s conduct meets the standard for invalidating the registration (i.e. that it knowingly provided inaccurate information that would have caused the application to be rejected had the examiner been aware of the inaccuracy). But because that inaccuracy is alleged to be that the 9 “confined” works did not share the publication date with the other 22 works registered in the Group, there is an underlying complication afoot in this case—one that irritates a sore spot in copyright law—which is that we lack a unifying definition of “published” as a matter of law.

Although the 9 “confined” designs were apparently made available to exclusive customers on the same date that the 22 “unconfined” designs were made public, the Court could find that the “confined” designs constitute a “limited publication,” which would be synonymous with a finding that they are “unpublished” based on the relevant case law. That would satisfy H&M’s proposed standard for invalidating the effective date of protection, but it presumably would not meet the bar of intent to deceive, if the Court agrees that such intent must be present.

I will say that it seems farfetched to assume that Unicolors intentionally sought to deceive the Copyright Office in this instance just to save itself the $35 fee for filing a separate registration application for the 9 “confined” designs. More generally, if this type of error can invalidate the registration on all 31 designs, this implies a lot of uncertainty for other rightsholders. For instance, although the Group photograph registrations mentioned above are less restrictive than “unit” registrations with regard to publication dates, the photographer is barred from mixing “published” and “unpublished” works in a Group. And as mentioned, the meaning of “published” is not exactly a settled doctrine.

With independent creators like photographers so often filing Group applications by themselves, and inevitably making mistakes, one can see why the petitioners representing those constituencies want the Court to find that the standard for invalidation must meet the high bar of an intent to deceive. But more specifically, creators would be hard-pressed to find ten practitioners, legal scholars, or courts to agree upon a straightforward definition of “published” as a matter of law. If that’s the case for legal experts, how are authors filing their own registrations supposed to be sure whether a Group registration comprising a few hundred photos might contain a mix of published and unpublished works?

In a follow-up post, I will delve a little further into the specific challenges for photographers in particular, the policy implications of this case, the unsettled meaning of “published,” and some of the proposals being discussed to resolve these matters for rightsholders.

*NOTE: Thanks to attorney Leslie Burns for clarifying via Twitter: “…the old system for unpub photos was virtually unlimited number in a single reg and no titles for individual photos were required; the new GRUPH has the 750 limit but it does require titles for each photo.”

[1] In order to comply with the terms of the Berne Convention, foreign works need not be registered with the USCO in order for the rightsholder to file suit in U.S. courts.

We Are All Copyright Owners

NOTE:  Apologies in advance for the American-centric post, but what follows can only universally apply in the context of U.S. copyright law.

Certain prominent figures making proposals for more limited copyright protections like to repeat the slogan, “We are all authors/creators now,” meaning now that we have the Internet and social applications designed to facilitate easy sharing of all sorts of content. What these folks neglect to mention is that we were all creators long before the Internet, which also means that we were all also copyright owners — and still are.  And just because most of us will never need or want to enforce copyrights, that doesn’t mean we should be fooled into passively abdicating the right just to make life easier for Internet companies.  One of the ironies I find intriguing about this subject is that so-called copyright reformers will argue that in the digital age, the general public needs to worry less about copyright, while I say the Internet is the reason everyday citizens ought to worry more about copyrights than they ever have. It doesn’t seem rational that in a time when our personal photographs, for instance, migrate from shoeboxes to global, shared networks that this the moment to suddenly care less about what might happen to these assets.

In the kerfuffle over the role of copyrights in the relationship between creators of works and consumers of works, the right itself is too often portrayed as a privilege enjoyed solely by creators. Somewhere in the conversation, we forget that nearly all citizens of the U.S. are copyright owners because the right applies universally and automatically to everyone who owns personal writings, photographs, videos, etc., regardless of the amateur status of these works.  But, if the corporate-interest “reformers” can count on Americans to forget or not care that they are copyright owners, then perhaps Americans won’t notice what would be lost by acting on a proposal to make copyright registration mandatory.  It might seem wise or efficient to suggest that those who consider their works commercially or socially valuable (we’ll call them artists) should be required to declare a desire not to have their works used without permission via a registration and fee process with the Copyright Office.  But if this reform were to become law, it would instantly strip copyright from every citizen who will certainly never bother to register his/her personal, amateur works, and it would strip the right at exactly the time in history when it might actually matter to the average citizen.

Ten years ago, we weren’t uploading images of ourselves, our kids, etc. into a computer network where anyone can duplicate, manipulate, and redistribute them at will.  Granted, if some unknown troll takes one of my personal photos off Facebook, monkeys with it, and redistributes it, copyright doesn’t afford me much protection because the troll is anonymous. But suppose my friends, a Jewish white couple who’ve adopted two children from Africa, post a casual, family snapshot for us to enjoy, and the Society for the Preservation of American Christianity and Whiteness uses their portrait to produce an advertisement calling biracial, Jewish families an “abomination?”  Or maybe Sarah Palin’s political operatives decide my daughter’s picture suits one of their core messages; and instead of civilly suing her organization for copyright infringement, I have to find said political operative and beat the snot out of him.  Personally, I think it’s better to leave intact the civil remedies available, imperfect as they may be.

Remedies aside, though, the most significant loss that might be felt in years to come is the social norm of respect as something of a byproduct of universal copyright, even if that had nothing to do with the intent of the constitutional clause.  On the broadest level, we simply do not erase the rights we have on the grounds that we rarely need to enforce them.  It is narrow-minded (and usually profit-motivated) for someone to suggest that we ever should view any right this way.  For instance, the right not to be discriminated against for race, religion, sexual orientation is codified into law and applies universally, regardless of how frequently or not this right needs to be enforced.  Would we create a system in which, for instance, a gay person should officially register his desire not to be discriminated against, thereby implying that discrimination is okay absent said registration?  Or is it more civilized to say that discrimination is socially intolerable and therefore illegal?

Perhaps most importantly, it is essential that people realize that the American public gains nothing by giving up automatic and universally applied copyright while the rationale for mandatory registration best serves the interests of a handful of Internet companies.  These businesses want to digitize, organize, synthesize, and monetize every bit of data they can without the expense and hassle of dealing with pesky things like the rights of users who share data and content in exchange for the “free” applications being used.  As such, many reforms proposed by academics and Internet activists are insidiously designed to get the public to slowly and voluntarily give up rights (e.g. privacy) that impede what they often call the “free flow of information.”  This is jargon, that translates to mean “what’s yours is ours.”  Mandatory registration of copyrights would instantly disenfranchise nearly all Americans from a right they’ve enjoyed since 1978. Personally, I don’t think we should cede that ground too casually.