Tag: copyright

America is a Creative Expression

Image by miflippo

This past July 4th, NPR posted the Declaration of Independence in a series of 113 consecutive tweets; and in response, a number of supposed Trump supporters took issue with the news organization, having no idea what they were reading, assuming for instance that statements denouncing the tyranny of George III were directed at the president.  And while the taste of such irony-rich schadenfreude may indeed be sweet, it would be fatally naive to think for a moment that only the most eager acolytes of Team Trump are so ignorant about the contents of the nation’s founding document.  After all, Trump’s presidency is merely a variation on a much broader theme of anti-establishment sentiment where we also find an ample supply of citizens splashing about in the kiddie pools of “liberalism,” equally uninformed and equally committed to views that are corrosive to democratic principles.

In fact, according to data collected by the World Values Survey, only about 30% of Americans born after 1980 believe that living in a country that is democratically governed is of paramount importance.  Although an unsettling statistic, it isn’t necessarily a surprising one given that its anecdotal accompaniment can be heard reverberating throughout Twitter, Facebook, YouTube, et al. This anti-democratic trend is one that defies traditional political affiliation; it cannot be ascribed to either liberal or conservative groups; and it is manifest in democratic nations other than the United States. In a paper for The Journal of Democracy, one filled with startling revelations, Roberto Stefan Foa and Yascha Mounk, write …

“As party identification has weakened and party membership has declined, citizens have become less willing to stick with establishment parties. Instead, voters increasingly endorse single-issue movements, vote for populist candidates, or support “antisystem” parties that define themselves in opposition to the status quo. Even in some of the richest and most politically stable regions of the world, it seems as though democracy is in a state of serious disrepair.”

Naturally, I blame Twitter.

Medium is message, right?  So, the one antagonist in this NPR Declaration story who interests me—a man highlighted in the coverage by The Washington Post—is the guy who realized his mistake and apologized.  He wrote, “I tweeted a VERY dumb comment. But ask yourselves; if read to the average American, would they know that you were reading the DOI? I do now.”  It is hard to argue with his assumption, especially when the Declaration is being fragmented into 113 pieces at 140 characters each, and then posted on a schitzy social media platform. I mean let’s face it:  if The Federalist had been distributed in a series of tweets, the American Republic would never have come into existence.

The real irony, of course, is lost on this man who apologized, as it probably would be on those eager to mock him.  The same medium, which obliterates context and practically demands mindless reaction, is the exact tool that a guy like Trump uses to manipulate citizens into reactionary behavior all the time.  But in this regard, Trump has merely capitalized on a trend that has been bollixing up our politics for years—and certainly not exclusively among his supporters. The president’s tweets are just the most prominent example of the information age having the opposite effect we were promised 20 years ago.

Given the manner in which social media atomizes and de-contextualizes information, should we be surprised that our politics have become so demonstrably tribal—and so utterly disconnected from the historical record?  Isn’t this what happens when we share common terms (like freedom!) but then destroy a common framework for interpreting those terms through digital remix?  Without meaning to do so, NPR remixed the Declaration, changed its context, and inspired some citizens to interpret individual phrases through their own arrogant, narrow, and absurdly contemporary lenses.  Isn’t that what social media inspires all day long on a thousand and one different subjects?

This seems particularly dangerous in America because ours is a uniquely fragile form of democracy. Fragile because the entire history of the nation begins with nothing but words on paper written a relatively short time ago; and stability depends on a degree of common context for what those words actually mean. Unlike our European forebears, the citizenry of the United States is not linked by any kind of common culture but is instead supposedly bound by a relatively common ideology.

In an 1825 letter to Henry Lee, Thomas Jefferson notes that the Declaration of Independence did not articulate original principles but “…was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests on the harmonizing sentiments of the day, whether expressed in conversation, letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.”

Jefferson’s explanation reminds me of the principle in copyright law known as the idea/expression dichotomy.  We recognize a difference between an idea (e.g. liberty) and an original expression (e.g. the Declaration) and grant temporary ownership to the latter but not to the former. Ideas are part of the commons and must be built upon and/or expressed in new ways; but original expressions of ideas are distinctive enough to be considered the property of their authors. Not all expressions are particularly compelling, but some are the most valuable of all human achievements.

I don’t mean to imply that the Declaration of Independence is a copyrighted work, but rather to note the significance that the American version of certain universal principles is unique to the country’s story and character. And this uniqueness matters. All creative expression is, of course, subject to interpretation—even to the extent that, at this nation’s founding, one man’s liberty was allowed to include the right to deprive another man of his liberty.  It took almost another century and then a war just to abandon the depraved hypocrisy of slavery—and another century after that just to begin to make policy out of basic compassion and humanity.

America is a creative work.  And like any creative work, it can be interpreted without context; but context makes a considerable difference in both understanding and valuing a work. Reinterpretation is also inevitable and essential. Although the elements of democracy had traveled through centuries, as Jefferson describes, to be present in the minds of the Framers, the precise expressions themselves were highly original at the time. “I confess that in America,” wrote de Tocqueville in 1835, “I saw more than America; I sought the image of democracy itself, with its inclinations, its character, its prejudices, and its passions, in order to learn what we have to fear or to hope from its progress.”

Still, it has taken nearly all of our 2.4 centuries as a nation just to reinterpret the meaning of those first expressions in order to “secure the blessings of liberty” for a plurality of citizens. So, it is certainly disheartening to think that the next generation—the first to inherit the progress of all that struggle—is now supposedly poised to give up on democracy itself.  If this is truly the case, then the reasons are no doubt various; but one possible catalyst is that creative works like the Declaration are not meant to be interpreted through the scattered keyhole views of social media.

EU Court of Justice Ruling – A New Chapter?

Photo by alexskopje Pond5

This week, the Court of Justice of the European Union concluded what any rational observer would conclude about websites that make large volumes of unlicensed copyrighted works available to the public — that their owners know exactly what they’re doing and why they’re doing it.  A Netherlands-based foundation that protects copyright interests argued in the nation’s Supreme Court that two ISPs could be ordered to block access to The Pirate Bay.  That court referred the case to the EU Court of Justice for interpretation under the EU Copyright Directive.

Among the long-standing defenses employed by pirate site owners attempting to thread their operations through statutory imperfection, is the claim that they do not upload infringing copies of works to their servers. Their users upload the files.  Even if you’re the most pro-piracy individual in the world, there is nothing about that kind of reasoning that should pass the smell test, and now the EU has wrinkled its nose and declared that making works available in the manner that The Pirate Bay does “may constitute an infringement of copyright.” A decision published two days ago states the following:

“Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content.”

If it walks, talks, and looks like an infringing enterprise, it’s probably an infringing enterprise.  Further, the EU Court decision offers a statement that may have considerable ramifications for site owners who have consistently sought to appeal to safe harbor provisions, based on the assumption that they are ignorant about what users do on their platforms.

“… it is clear from the Hoge Raad’s [Supreme Court of the Netherlands] decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of the rightholders. [sic]”

Not only does this have implications for sites like TPB that are dedicated to piracy, but also to service providers and search engines that provide access to those sites as well as legal platforms that earn “unintentional” revenue from infringement. Most prominently, of course, I’m referring to YouTube, which has unquestionably profited from hosting unlicensed material while remaining shielded by safe harbors. The EU Court’s rational conclusion that site owners cannot be nearly so deaf, dumb, and blind as they claim, may prove to be a major threshold moment for counter-piracy efforts around the world.

In fact, the day before that decision was published, a new global initiative was announced by 30 major content creators, including old names like MGM and new names like Hulu.  The Alliance for Creativity and Entertainment (ACE) calls itself a “new global coalition dedicated to protecting the dynamic legal market for creative content and reducing online piracy.”

Stressing the importance of legal frameworks to foster the growth and maintenance of new platforms for accessing a diverse range of filmed entertainment, the Alliance states in its press release that it will “conduct research, work closely with law enforcement to curtail illegal pirate enterprises, file civil litigation, forge cooperative relationships with existing national content protection organizations, and pursue voluntary agreements with responsible parties across the internet ecosystem.”

While piracy advocates continue to claim (and not without precedent) that they will always find a way to keep infringing, 2017 may prove to be the year when we start to see much better cooperation among major rights holders and the major online platforms. It has certainly been the year when many parties (e.g. advertisers) have finally rejected the traditional claim by the internet industry that the web operates best as a self-governing universe.  And it seems that many users are coming to realize that platforms are already governed plenty by their owners in the service of their own financial interests.

Not Just About Piracy

Google and other platforms have strongly resisted demoting, removing, or de-indexing links to content that is defamatory, illegal, or otherwise harmful—even when courts have ordered companies to do so. “Digital rights” organizations have consistently taken what can be described as a maximalist position in blindly defending liability shields in both the DMCA and the CDA—even to the extent that the EFF apparently saw no reason for exception in the face of evidence that Backpage.com may have been supporting the trafficking of minors in the sex trade.

As levels of violence and extremism continue to grow, both American and European leaders have already indicated a desire to make online platforms more responsible for policing their sites; and this pendulum can absolutely swing too far in the wrong direction. As technologist Jaron Lanier warned this week on NPR, we do not want to give private corporations like Google too much power to “police” the web because they are not subject to oversight as government agencies are.  This is a much larger topic for future posts, but at the same time, it is known that enterprise-scale piracy intersects with other forms of criminal activity—particularly the malware trade.

Historically, whenever trends like those we’re seeing this year begin to write a new narrative, government turns to the industry in question with an ultimatum—that they can clean up their own act or Congress will do it for them. Given the present chaos in Washington, including specifically at the Department of Justice, predicting where exactly U.S. policy on countering illegal online activity is heading is a murky prospect at best.  Nevertheless, this EU Court decision; the recent mood of major advertisers toward Google; this new ACE coalition; and a perceptible shift in sensibility among users who feel that platforms need to be more proactive to counter hate crime, harassment, and violence all suggest that the internet industry may be about to become better partners in addressing some of the negative effects their business models have created.

Artists Making Merch Should Avoid Copyright Confusion

Photo by vlad_star

Ars Technica posted an article last month about copyright and tee shirt design that, in my view, jumps past the real story and may confuse a few independent artists out there that they’re operating in some new realm of IP law.

The internet industry sells a message of opportunity, and it is absolutely true that the combination of e-commerce platforms and on-demand production does create new avenues for creators to earn revenue from their work.  Willie Clark’s article describes a network of artists who are currently making at least a portion—if not the lion’s share—of their living from the sale of tee shirts that feature their original designs.  All good.

But in a world without copyright protection, there is not much to stop either a sole actor or a predatory website from appropriating the artists’ designs and selling tee shirts or other merchandise by leveraging exactly the same tools available to the artists.  Clark cites a few artists who are quite sensitive to this issue; and in my view, this is one of the major challenges of internet economics:  it assumes everyone will behave ethically, and when they don’t, the tools easily enable cannibalization of the very same opportunities they create.

Clark’s real focus is on the legal status of sites and/or artists in cases where high-profile, corporate-owned IP may be involved. He asks, “If big media has legal muscle, why can you buy Link racing Harley Quinn on a shirt?” Okay, that’s a sub-head, and Clark can be forgiven for not quite answering the question—especially because there isn’t a general answer other than to say that if you go printing merch with copyrighted material belonging to major rights holders, be careful.  Clark writes the following:

“While there hasn’t been a high-profile case involving a big pop culture IP and an online T-shirt company yet, there have been similar situations. Mitch Stoltz, senior staff attorney with the Electronic Frontier Foundation, pointed to one court case where T-shirts overall had been tested. And in Kienitz v. Sconnie Nation, LLC, the court ruled in favor of a shirt that used another photographer’s photo as the basis for the design.”

The indie artist should not be confused by this statement into thinking that the internet-spawned tee shirt trade has entered some new gray area of copyright law. For one thing, in the Keinitz case cited, the tee shirts are barely relevant. The appellate court refers to the substantial amount of alteration made to an original photograph and to the lack of potential market harm to the original in affirming fair use. The image at issue could have been fixed onto any medium, and the legal considerations would have been almost identical.  But, if the tees had served as a substitute for the rights holder’s licensed—or potentially licensed—merchandise, that would be a very different story, which brings me to the next quote.

“Stoltz also mentioned one other reason companies may be OK with leaving such sites operational: free advertising. ‘This is free marketing for them, and they know it,’ Stoltz said. ’It’s not really good marketing strategy to go suing your fans and the websites that they like to use.’”

This is a familiar refrain from the EFF, and from the larger community of copyright skeptics and outright antagonists. This idea that appropriation serves as free advertising is, for instance, a common rationalization for large-scale piracy. But it’s not an argument that actually carries much weight with most rights holders, least of all the majors. So, if you’re an independent artist, considering making a tee with a Harley Quinn-based design on it, I would not take this “free marketing” message to heart because it almost certainly is not how rights holder DC Comics will consider the use.

A fair use of an illustrated character really has to comment upon the work in a way that goes beyond mere re-interpretation.  Otherwise the use on a tee shirt will very likely be seen in court as counterfeit merchandise—an unlicensed “display” of a protected work. Moreover, characters are very often covered by trademark and copyright, which gets into a whole other set of motivations for the owner to consider enforcement. For instance, trademarks must be enforced or they can be lost, which is not true of copyright.

Likewise, the discussion of the DMCA in the Ars Technica article can be confusing because the DMCA has no bearing whatsoever in the trademark universe and, as Stoltz is correctly cited, has no authority in the world of infringements beyond cyberspace. Tee shirts and other merch are physical media, so the artist, the site, and/or the manufacturer could be liable in a context that has nothing to do with the digital market.

It is certainly true that fair use exists in order to allow artists to comment upon copyrighted works without the rights holder’s permission, and commentary is a critical part of creativity, social discourse, advocacy, etc.  But merch can be tricky, and unless artists want to spend more time thinking about fair use doctrine than making art, it’s probably better to focus on creating original expressions.  And apropos of the top of this post, it would be far more beneficial to the creative community—and society—to figure out how independents can better protect their rights in the digital market than it would be to keep looking for ways to use works belonging to other rights holders.