Tag: copyright

Shakespeare would thrive in a world with copyright.

shakespeare

I saw it again the other day. In a sarcastic tweet that flew by. A familiar theme. Without naming names, it said something like this: As if creativity didn’t exist before 1709. There was no Shakespeare.

For one thing, this is the kind of pugnacious statement that I can’t believe ever informs the copyright debate. Because I don’t know anyone who asserts that creativity did not exist before copyright. Creativity existed in pre-homo-sapiens. But so what? That fact is as useful to a discussion about contemporary life as observing that eating predates cooking.  True but ick.

The year 1709 is of course a reference to England’s Statute of Anne, which is identified as the precursor to modern copyright law because that legislation was the first to grant exclusive rights in written works to authors rather than publishers. And if it is sufficient for some to condense four centuries of history since Shakespeare’s death into a single tweet, maybe this reveals something about those who both say and believe unexamined statements that invoke the Bard as exemplary of copyright’s irrelevance. In particular, this line of reasoning makes two fundamental mistakes.  The first is one of overstating the extent to which Shakespeare relied upon borrowing; and the second is one of understating the significance of the idea/expression dichotomy in copyright law, which dictates that ideas may not be copyrighted and only unique expressions may be.

As explained in a previous post, the reason Shakespeare and his contemporaries so often borrowed, or even outright plagiarized, existing work had a great deal to do with the exigencies of producing high-volume, high-speed theater in 16th-century England and little to do with the abilities of the writers themselves to be inventive. Had the Arthur Brooke estate, for instance, owned a copyright on The Tragicall History of Romeus and Juliet, everything we know about Shakespeare’s gifts implies that he had both the talent and the desire to work around this relatively minor creative barrier. Moreover, the result would almost certainly have been a more distinctive play than Romeo & Juliet. After all, Brooke would not have owned the idea of ill-fated lovers, just his own expression of it.

The idea/expression dichotomy is the reason why a large volume of works can share many qualities with one another and still remain distinctive enough to be considered individually “original” and, therefore, separately copyrightable. And in the generalized debate—especially when it’s made tweet-sized—I think people fail to recognize just how subtle the distinctions among works can be in order to render them non-infringing upon one another. Combine this error with a glancing knowledge of Shakespeare, and it’s easy to make The Bard into an unwitting poster child for the importance of borrowing or building upon prior works.

Part of Shakespeare’s genius—as historian Bill Bryson puts it—was to “…take pedestrian pieces of work and endow them with distinction and, very often, greatness.” The manner in which he achieved distinction and occasional greatness was both by invention (e.g. a plot device here, a twist on an idea there) and by his remarkable ability to produce indelible sounds from the fledgling English language. If we were to keep his raw talent intact, remove the political, social, and economic barriers of his time, and replace these instead with only the boundaries of modern copyright, Shakespeare’s ability to draw upon source elements and make them uniquely his own suggests that he would have done quite well in such a regime.  To put that in a contemporary context, if author E.L. James is skilled enough to adapt her Twilight fanfic into the separately copyrightable 50 Shades of Grey, I think it’s fair to say that Shakespeare would be up to a similar task.

To Bryson’s point, we should view Shakespeare as already wrangling with the idea/expression dichotomy by revising existing notions and elements into richer expressions than they had been.  Like any artist, we see him working around the barriers of his own internal aesthetics and sensibilities. And by contrast, the external barriers of copyright are quite minimal to the author, which is why this entire line of criticism doesn’t tend to come from creators and artists themselves. Perhaps more relevant to my initial point, though, is the fact that a great deal of Shakespeare’s often-exaggerated “borrowing” would be consistent with copyright anyway. This would likely be the case with all of the history plays or certainly with plot devices taken from ancients like Plautus, who died in 185 BC.  There’s a lot more to Shakespeare than Romeo & Juliet, and we have far more reason to imagine that he would thrive in a world with copyrights than to assume that he would wither.

It’s just too easy to conjure Shakespeare as a lofty trope of literary brilliance and then assume that the works as we know them are now fossilized in the only form they could ever have taken. No one who has ever created anything would make this mistake because the end product is almost never the only way the process could have gone. If Shakespeare had both copyright and free speech, it is more rational to expect that he would have been even more prolific and profound than it is to imagine that he would have produced less—or nothing. As it stands, he was modestly prolific by both 16th-century and contemporary measures. Sam Shepard, Tennessee Williams, Neil Simon, Eugene O’Neill, and Arthur Miller—to name a few—all wrote more than Shakespeare and all certainly worked in a world with copyrights. So, of course creativity itself predates copyright law; but invoking Shakespeare — though it may seem counter-intuitive — only suggests that creativity was weaker without it.

Looking for Censorship in All the Wrong Places

Last week, I stumbled on a tweet by a staff member at the Electronic Frontier Foundation warning California citizens to “take action” in protest against the passage of Assembly Bill 2880.  The linked article on the EFF website written by Ernesto Falcon begins by asserting in its headline, subhead, and first paragraph that California will be venturing into brand new territory with regard to registering or enforcing state-owned intellectual property and that this will have the usual litany of ill effects—“chill speech, stifle open government, and harm the public domain.” Falcon’s first sentence reads, “The California Assembly Committee on Judiciary recently approved a bill (AB 2880) to grant local and state governments’ copyright authority along with other intellectual property rights.”  (Emphasis added.)

It is standard procedure for the EFF to make scary declarations while avoiding specifics. They have a habit of telling people that a proposal will be really bad while shirking the effort of quite explaining how. The organization also tends to focus almost entirely on copyrights when a broader view of IP might be relevant in a given circumstance, as it is with a state, which may have at least as much interest in patents and trademarks as in copyrights.  What Falcon wants the reader to conclude is that AB 2880 will grant new authority to the State of California to copyright works like public records, which would then give elected officials a means of stifling speech by misusing copyright law.  You might recognize this theme as one of the EFF’s Greatest Hits, but of course, this bill does nothing of the sort.

AB 2880 does not establish new IP rights for the State of California.  California and other states have owned intellectual property for a very long time.  A  FY2000 California audit of IP states, “In total, 125 state agencies own more than 113,000 identified items of intellectual property.” What this proposed bill does do is to clarify California’s position on its IP and then requires procedures (e.g. developing guidlines for contractors) to be overseen by the Department of Governmental Services for better management of state-owned intellectual property. A need for clarification in the law is noted in the comments from the State Assembly floor, which cites lessons learned from the widely publicized, 2015 dispute between the National Park Service and the Yosemite National Park concessioner Delaware North.  The floor comments include the following:

”…the lack of a robust intellectual property framework has led to confusion among state agencies, loose and informal practices, and possibly confusion among state and federal courts. Several recent court decisions have held that state agencies need legislative authority to hold intellectual property rights. In light of the recent Yosemite trademark issue and the recent court decisions, this bill builds on the framework established by AB 744 in order to assist state agencies manage and protect the state’s intellectual property rights, particularly in state contracts where state-owned intellectual property is at stake.” 

That’s not exactly spellbinding, but neither the character nor the language in this bill gets anywhere near the EFF’s implication that California agencies will have “new powers” to use copyright law in order to stifle speech or limit access to public records after passage of 2880.  Nevertheless,  Falcon writes, “As things stand today, works created by California state and local governments (like reports, video, maps, and so on) aren’t subject to copyright except in a few special cases. That ensures that Californians who funded the creation of those works through their tax dollars can use those works freely.”

Not quite.  Falcon is purposely being vague in order to have the reader assume that public records will be treated the same as expressive works or other IP that is funded by California taxpayers, especially where third-party contractors are involved.  At the same time, he’s sowing a bit of confusion about the difference between public property and the public domain—as if all works funded by taxpayers are automatically in the public domain, which is not the case.

A work, invention, or process that is in the public domain is no longer property of any kind.  It is entirely fair game for anyone anywhere to use for any purpose.  Public property, on the other hand, is just that; and state agencies have a responsibility to protect the investment of the constituency who paid for the development of the property.  For instance, it is common that public property, whether physical or intellectual, may not be used by a for-profit entity without that entity paying a license fee that goes back to the public fund.  And this is as it should be; the taxpayer isn’t typically expected to fund free resources to be used by for-profit entities without getting something in return.   To manage this, states need an intellectual property regime, and AB 2880 is a rather mundane update to that regime.

On the subject of censorship, Falcon draws our attention to the case in which the City of Inglewood wrongly filed a lawsuit against Joseph Teixeira, who posted city council videos (which are public records) on YouTube in remixes that were critical of the city’s Mayor James Butts.  The lawsuit was, to put it mildly, an act of rank stupidity on the part of city officials, which is pretty much what Federal Court Judge Fitzgerald said when he not only tossed out the case as “meritless,” but also ordered the City of Inglewood to pay the full fees of bringing the case in the first place.

And although Falcon is following the EFF playbook by riling up readers with a reference to this attempted abuse of copyright law, there is nothing in AB 2880 that would newly empower a future state public official to get any further with a federal court than Mayor Butts did.  It should also be noted that nothing in AB 2880—or any other statute for that matter—can fully prevent people from attempting to misuse the law, which is one reason why a judge determines whether or not a case has any standing before it can proceed. If anything, the Teixeria story ought to chasten city and state officials against future temptation to use copyright to stifle speech.

In addition to conflating public property with the public domain, Falcon is purposely mixing public records with other types of works that are copyrightable and is also confusing federal policy with state policy.  It goes without saying that federal public property belongs to all American citizens while state public property belongs to the citizens of that state, but it is not true that all public property in either case is the same thing as the public domain.   Still, Falcon declares that AB 2880 will impose new restrictions on California’s taxpayer-funded works, as if the proposed bill will move these works from the public domain into the protection of copyright. He writes, “… a vast majority of state created works are free to the public with only five exceptions. All other audio, visual, and written work of state and local govenment employees is in the public domain upon creation and free for the public to use however they see fit.”

Again, not quite. The legal precedent to which Falcon’s link refers states that the California Public Records Act “prohibits copyright in state government records unless there is specific statutory authority to do so.”  And this precedent is not overturned by the new language proposed in 2880, which reads as follows:

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires. A public entity’s intellectual property right shall not preclude the public entity from disclosing any information otherwise accessible under the California Public Records Act. A disclosure under the California Public Records Act shall not be construed as waiving any rights afforded under the federal Copyright Act of 1976.

All that says is that state agencies may own intellectual property (which was already true), that copyrigths may not preclude public access to public records, and that disclosure of public information does not inherently void the state’s copyrights. Not only does this language not override existing law, it seeks to clarify the law in light of some of the lessons learned from various court cases, as described in the floor comments cited above. Of course it is entirely possible that this clarification is exactly what the EFF doesn’t like about this bill. Clearer copyright laws are the opposite of no copyright laws, and it seems as though that organization is only ever interested in the latter.

Is Google simply above the law?

Google Shell GameIncreasingly, in the United States, the answer to that question seems to be yes.  As Exhibit A, I offer this latest anecdote from Ellen Seidler at VoxIndie, who describes the experience of one indie film distributor who found an entire film uploaded to YouTube by some smug little snot with the handle Free Movies. The film distributor had used its ContentID account to “block uploads of certain lengths in its territories,” writes Seidler, but Free Movies decided that the distribtutor doesn’t have the right the block the film in any context whatsoever.  Seidler describes the situation as follows:

“S/he [Free Movies] stated the reason as being:  Approval from copyright Holder is not required.  It is fair use under copyright Law. The user also added a note: ‘I don’t need to explain.’

Despite all the testimony at last week’s roundtable about fair use–and how copyright holders seek out [sic] to punish those who claim it using malicious takedowns–it’s worth pointing out, yet again, that for every legit “fair use” claim, there are also false, and rather malicious, abuses of that defense.  It’s a fact conveniently overlooked by the anti-copyright apologists.”

YouTube restored access to the entire film (which would never ever be a fair use!), the distributor’s claim was then reinstated, and Seidler rightly points out that if Free Movies files a counter notice, that’s the end of it.  These indie filmmakers don’t have the resources to files suit in federal court, so Free Movies and YouTube can not only get away with the infringement, they can even monetize it together—earning revenue from the labor of other people.  Because freedom.

But if Google is going to support—and even encourage—this kind of behavior on its platforms, and if Congress isn’t going to fix the law to give rights holders a fighting chance, then let’s at least be honest about what this mess really is.  Google should simply instruct its users to file responses and counter notices invoking the words hocus-pocus or swordfish or expelliarmus, and then these infringing files can remain on YouTube. Because fuck you.

Why bother even bringing up a complex legal doctrine like fair use? Clearly, Google’s intent is to ensure that users like Free Movies remain wholly illiterate about the principle; and the independent creators can’t afford to go to court anyway.  I’ve argued in the past that fair use is not just an incantation that makes infringement claims go away, but maybe I’m wrong.  Because Google is apparently above the law. So, if that’s the new reality, lets be honest about it and not add insult to ignorance by pretending a legal principle is even being applied in such a case.

As Exhibit B, Conor Risch, writing for Photo District News, describes Google as “too big to sue,” even for a relatively large rights holder like Getty Images.  Ever since Google changed its Image Search format, Getty—the largest stock-photo library representing thousands of photographers around the world—has seen dramatic loss of traffic to its own pages.  Traffic that Google has effectively hijacked.

Prior to the 2013 change, Google Image Search results produced thumbnails of most photos, and when a user clicked on an individual image, he was directed the to the web page hosting that image.  But never content simply to “organize the world’s information,” Google likes to own the world’s attention in order to drive ad revenue and mine data.  So, in 2013, they changed Image Search to provide larger, high-quality images that do not link directly to the owner’s web pages. Instead added a “Go To Web Page” button, and this additional step combined with posting  high-quality images has resulted in a sharp decline in traffic to Getty’s site.

As has recently been reported, Getty is pursuing Google in the EU, where the search giant faces an ongoing and wide-ranging anti-trust investigation.  Getty views Google’s Image Search practices as implicating both copyright and anti-trust law, but even though both companies are based in the US, Getty’s avenues for relief domestically are presently very narrow.  After extensive investigation into the practices of the search giant, the US Federal Trade Commission voted unanimously in 2012 not to pursue Google.  This is in dramatic contrast to the European Commission, which may be about to impose a record-breaking fine on Google for “anti-competitive search practices,” reports Andrew Orlowski for The Register. With regard to bringing a copyright infringement claim against Google, Getty’s General Counsel Yoko Miyashita states, the search giant would simply “wipe us out from a cash perspective” by dragging out the case for years.

Where the copyright and anti-trust issues converge is when the company that is too big to sue is also the company that is too big to ignore. As Miyashita explains in the Risch article, “Are there copyright issues? Yes. But the problem is not just copyright. It’s their market dominance and their position in search where they can circumvent any of the copyright protections that legislatures or courts may provide.”

By way of example, Miyashita cites legislation passed in Germany and Spain that was designed to protect news publishers in those countries by requiring compensation for Google’s use of news snippets. Google’s response?  De-indexing those publications from its search engine—a practice that Google’s own spokespeople and attorneys will typically claim “chills free speech” whenever a plaintiff seeks an injunction to de-index links or sites that are clearly infringing intellectual property or violating privacy.  The same company that will insist that access to the web is a universal and inviolable civil right will gladly remove entities from its near-monopoly search engine when it has a buisness interest in doing so.

Technically, even under the DMCA as it is written, the above-mentioned FreeMovies is supposed to lose his/her YouTube account as a repeat infringer.  But no.  Such a remedy is labeled as “censorship” by Google and its Kool-Aid drinking buddies at EFF, et al. But it’s okay to remove news organizations from search when it serves Google’s bottom line.  Again, if this is how things are, if Google is simply above the law, then let’s abandon the nuanced language of law altogether.  Let’s just say it’s Google’s internet and they can do whatever the hell they want with it.