Tag: Featured

Ocasio-Cortez Video a Good Example of What Rights Holders Really Want

Some news hit the fan late last week that certain parties tried to embarrass newly-elected congresswoman Alexandria Ocasio-Cortez by sharing a video of her dancing with college friends on a Boston rooftop, riffing on the 80s film The Breakfast Club to the tune by Phoenix called “Lisztomania.”  Why anyone imagined this would shame Ocasio-Corez is a mystery to me, but the reason it’s a subject here is in response to an article in Wired alleging that “the only reason you can watch the video now is because of a copyright battle that was settled five years ago.”  As usual, the reporting in this article is rich in attitude but poor in comprehension of copyright law. 

For starters, in her zeal to criticize copyright, writer Louise Matsakis did not look very closely at the AOC video on YouTube, where two bits of evidence demonstrate that its presence on the platform has nothing to do with a settled 2013 litigation between copyright reform activist Lawrence Lessig and Phoenix label Liberation Music.  The first clue is a timeline problem because the video was uploaded three years before Lessig’s confrontation with Liberation, and the second is that little statement below the video, which reads “Licensed to YouTube by Liberation Music, etc. …”. 

I know it’s not very exciting, but the music in this video is simply licensed by the platform, which brings up a broader point that I’ll get to shortly.  For the moment, though, I do not want to minimize the relevance of stories like Matsakis’s confusing the hell of people with regard to copyright law and what is generally called “remix culture.”  It seems clear that a reasonable takeaway from this article is an impression that the AOC video represents a fair use of the song “Lisztomania” and that we have Lessig to thank for affirming that for us.  Not even close.  

In 2013, Professor Lessig included various “Lisztomania” inspired mash-ups and spoofs in the AV he used to support a lecture on the subject of remix culture and his view that copyright enforcement hampers the emerging experiences of digital-age consumers.  When Lessig posted a video of this lecture online, Liberation Music (probably unwisely) filed a DMCA takedown and subsequent lawsuit against Lessig, which was eventually settled in Lessig’s favor. I do not know all the particulars of that conflict, but even if we stipulate that Lessig’s use was unequivocally a fair use, the video featuring “Sandy” Ocasio-Cortez is not.

While this video, and many like it, may (if we really stretch) be considered a comment on 80s culture, on The Breakfast Club, etc., the relevant facts are these: the video makes use of the entire song; the users make no creative changes to, or substantive comment upon, the song; and the song is synched to just over four minutes of motion picture.  This is a classic example of a use that traditionally requires two types of music license, and there is no reason to expect that any court would find fair use in a hypothetical litigation.  

In particular, as a work hosted on YouTube, the video would absolutely be considered a substitute for access to the song through otherwise licensed channels and would, therefore, fail under the fourth prong of a fair use analysis.  Even though the friends of AOC made this video for fun, and it seems wrong to expect that they would ever license the music for such a purpose, the reality is that most rights holders understand that.  What they are not cool with is YouTube earning a fortune from the traffic generated by hosting musical works while it pays songwriters and artists somewhere between a pittance and nothing for that privilege.

Returning to the reason why a video like this one (if it were not licensed) would fail under the fourth prong of the fair use test, it is widely recognized that YouTube is a globally-available substitute for other, paying or better-paying, channels for listening to music.  Sure, this week people will watch the AOC video out of curiosity generated by the news about her—views jumped about two million since I looked on Friday—but in general, YouTube is how millions of listeners play songs they want to hear, regardless of what the videos display.  

So, if 100 users upload a song for 100 different reasons, and each channel gets one million plays, that’s one-hundred-million public performances YouTube gets to monetize, possibly for free.  And that is the complaint songwriters and artists have. It is the reason why proposals for change (e.g. the EU’s Article 13) have been presented—not generally to stop these uses but to share in the revenue generated by them.  And that returns us to the absurd irony that, for all the legal incoherence in Matsakis’s article, the AOC video is actually a perfect example of what artists want—licensed use by the platform!

As a simple comparison, the video-makers in this case are like the local musician who wants to perform at Open Mic night at some club.  Nobody expects that guy to pay for performing rights licenses.  Instead, the venue—as the only money-making entity in the mix—pays performing rights licenses to cover most songs, so the musicians who come to Open Mic can perform whatever they want.  In this analogy, YouTube is the (very big) money-making venue; the college students who made the AOC video are the local musicians; and the copyright owners of the songs don’t want to stop the use, they just want the venue to pay a fair license fee.  

As for the rights holders who do occasionally have reason to stop a use, this should generally be respected, too, but is a case-by-case consideration that truly exists between the user and the copyright owner.  

Meanwhile, the narrative spun by YouTube—with the help of Lessig, the EFF, et al—is that the big bad rights holders should “leave the kids alone,” and this theme is transposed into articles like Matsakis’s in Wired, which then fuels the misconception that videos like the one featuring AOC would be fair use if challenged.  This breeds more unlicensed uses, often of works owned by rather small and modestly-resourced creators, from which YouTube reaps the financial benefit while the creators get nothing.  

As Ocasio-Cortez styles herself a champion of the “little guy,” I’m happy to see our newest millennial Member of Congress laugh off the haters of this innocuous video, but I also hope that, as a representative, she helps foster an understanding that the songwriters and musical artists are the little guy trying to stand up to corporate behemoths like YouTube.  

Internet Platforms Above the Law?

Silicon Valley may have done ‘bare minimum’ to help Russia investigation, Senate Intel Committee told … 

That headline from CNN, and which was echoed in several news stories that began appearing late Monday, will elicit no surprise among my friends and colleagues working in IP law, privacy, publicity rights, security, and various other matters of justice in the digital marketplace.  Those of us who believe that the rule of law is not anathema to the internet are used to the major platforms behaving as though they operate in some alternate universe where the laws of old-model, physical humans do not apply.  After all, these companies and their executives were nurtured on exactly that manifesto when the late John Perry Barlow first read his Declaration of the Independence of Cyberspace at Davos in 1996. 

To put it mildly, Barlow was utterly full of shit when he declared the internet to be a “home of mind” that could not, or should not, be governed by the “weary giants of flesh and steel.”  Perhaps he can be forgiven some poetic license in the service of a sincere hope that the internet might truly be an incorporeal space that would help us transcend human folly and connect to one another through our better angels.  But that’s not what happened.  And debates about cyber policy should stop pretending it can still happen.

Fast-forward to the harsh realities of the present, and the “home of mind” is dominated by glorified advertising platforms, easily exploited by the worst kind of malicious actors and which clearly appeal to our lesser—even our profoundly stupid—angels.  And the sad irony is that, far from operating benignly adjacent to physical society, social media platforms have been exploited to infiltrate, corrupt, demoralize, and degrade the foundations of society in very real and very dangerous ways.

Two independent reports commissioned by the Senate Select Committee on Intelligence investigated the St. Petersburg-based Internet Research Agency (IRA), the professional troll farm erected for the sole purpose of inflaming political discord in the United States and other liberal democracies around the world.   The reports reveal that disinformation on all major platforms was, and still is, more widespread than initially believed; and they describe the methods by which specific groups like African Americans were targeted in an effort to dissuade voter turnout for the 2016 election.

I plan to read both reports and follow up, but for now, I thought it worth highlighting the detail that the reports’ authors allege that the major platforms were far less cooperative than one might hope given the gravity of the circumstances.   As The Washington Post quotes …

“Unfortunately, Google made the unusual choice to provide data to the Committee in nonmachine‐readable format.  The ads data was provided in lengthy PDF format whose pages displayed copies of information previously organized in spreadsheets (Google could have provided the original spreadsheets in CSV or JSON files).”

Think about that one.  Google stifling the use of computers as the U.S. Senate tries to better understand exactly how a foreign and hostile power has been working to fracture the American democratic process.  Further, while skimming the report submitted by New Knowledge, I caught the statement that begins, “Regrettably, it appears that the platforms may have misrepresented or evaded in some of their statements to Congress.”  

In this regard, I was intrigued by the strident tone lately adopted by Senator Ron Wyden in response to Silicon Valley’s less than forthright conduct in these investigations.  Vowing to pass “legislation with teeth,” Wyden has proposed a new consumer privacy bill aimed at restricting what these platforms may do with user data, particularly with respect to the manner in which that data may be leveraged to target disinformation about politics and policy issues.  Further, the proverbial “teeth” in Wyden’s bill would impose substantial penalties, including potential imprisonment for executives, for failing to provide honest and complete testimony to Congress.

For my colleagues who work in copyright advocacy, Wyden has not exactly been the rule-of-law representative when it comes to holding Silicon Valley accountable.  But perhaps the thinking will change as the senator and his colleagues must now address the many indisputable ways in which a liability-free internet industry has, quite possibly, done more harm than good for American democracy.

Meanwhile, despite mounting evidence that the major social platforms are more often a home of mindlessness than mind, Barlow’s Declaration remains the cosmic background noise still ringing in the heads of too many defenders of what we generically call “the internet.”  Whether it’s the Electronic Frontier Foundation or Techdirt or MEP Julia Reda’s anti-copyright campaign in the EU or the Internet Association or even the American Library Association, one can still hear the strains of a misguided faith in a pure internet, unsullied by the taint of law, in the rhetoric deployed against almost any policy that might demand platform responsibility.

For far too long, a false premise undermining copyright enforcement specifically—and almost all other types of enforcement generally—has been that it is better to allow harmful or illegal content to remain online than to risk censoring even a micro-byte of protected speech.  But that premise is, paradoxically enough, a pre-digital-age idea and a blind allegiance to Barlow’s naive cyber-utopianism.  It is a laissez-faire approach, which casually ignores the new reality in which an unfettered amount of harmful or illegal content continues to undermine the values it claims to uphold.  

After all, if an American inadvertently shares a political meme that was written by a malicious actor in St. Petersburg—and whose goal is to weaken global democracy—can anyone honestly say that free speech is fulfilling its purpose in that moment?  This is just one reason why, about a month ago, I personally stopped most activity on Facebook:  because I’m not sure it’s possible to avoid feeding that particular cancer.  At the same time, it is notable that we do not even need bad actors as dramatically well-organized as the IRA to weaponize disinformation on a wide range of issues; but that’s a subject for a different post. 

So, I look forward to reading the Senate-commissioned reports; but for now, I thought it worth noting the allegations that the major platforms are stonewalling and obfuscating in these investigations—still behaving as though they operate outside the rule of law.   Of course. the tragically ironic twist to Barlow’s vision of cyberspace as separate from, and elevated above, “weary” reality is that our present reality too often resembles the craven, mean-spirited, and willfully misinformed cyber-world of social media.

Robot image source by digitalstormcinema

Second Circuit Rules Against ReDigi in Major Decision

VidAngel.  TVEyes.  ReDigi.  

Copyright interests might view these enterprises as the unholy trinity of tech ventures that have attempted in recent years to strain statutory limitations to such extremes that their interpretations would actually vitiate copyright protection itself.  In August of 2017, the Ninth Circuit denied VidAngel’s crusade to push the fair use doctrine beyond any meaningful scope; in February 2018, the Second Circuit held that TVEyes’s methods for making news content available was substantially different from Google Books under the fair use doctrine of “transformativeness”; and yesterday, also in the Second Circuit, ReDigi was rebuffed in its attempts to assert fair use and first-sale doctrine to legitimize its trade in “used” digital files.

ReDigi has been the subject of several rather long posts on this blog, but to recap, the venture was based on administering transactions in “used” digital media.  The concept was that if Consumer A no longer wants to listen to a particular digital audio file (MP3), she would be able to sell that file to Consumer B, via the ReDigi interface, at a “secondary market” price on the basis that the file would be considered “used.”  

The obvious market-based problem with this proposal is that because digital files cannot accurately be considered “used,” a ReDigi enterprise would result not in a secondary market but rather in a substitute for at least some portion of the primary market.  This is the reason why the court held that the Fourth Fair Use Factor (potential market harm to the original works) “weighed powerfully against” ReDigi in its appeal to the fair use defense.  

Further, ReDigi attempted, as many others have done, to assert that its use of the files was “transformative” under the First Fair Use Factor (nature of the use and commerciality), and this was most notably rejected by Judge Pierre Leval, the author of the “transformativeness” doctrine.  From the opinion …

“Even if ReDigi is credited with some faint showing of a transformative purpose, that purpose is overwhelmed by the substantial harm ReDigi inflicts on the value of Plaintiff’s copyrights through its direct competition in the rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders.”

This is a very important decision as a matter of doctrine because so many users of works, both large and small, have repeatedly tried to exploit the relative vagueness of the word transformative to argue that merely migrating content from one context to another is sufficient to meet that standard.  In finding against TVEyes, this same court drew essential boundaries to reign in the meaning of the term, and now ReDigi further solidifies that opinion.  

Based on these two decisions, it seems fair to summarize thus:  in order to be “transformative” without authoring a new creative expression, a user of works must a) truly offer society something novel and useful; and b) limit the use of protected works to avoid creating a substitute for fair market access to those works.  For instance, Google Books meets these standards while these other business ventures do not.

The court was also not persuaded by ReDigi’s defense under the doctrine of first sale.  As discussed in detail in those other posts, first sale is the limitation in copyright law that allows you to resell your personal copies of works for whatever price a secondary consumer is willing to pay, whether that’s a quarter at a yard sale or thousands of dollars in a rare book shop.  The first sale doctrine dates back to 1908 and, as I have theorized in the past, the principle itself may not ever have been written in a purely digital market where “copies” themselves are no longer limited to one-off, physical objects like paper, plastic, vinyl, etc. 

With regard to ReDigi, the courts agree that our digital music files qualify as “phonorecords” under copyright law and that we consumers have the right to resell our phonorecords.  The problem is that the law also holds that files are “reproduced” in the process of transferring from one device to another.  Even if the ones and zeros that compose “Silent Night” on my computer are erased while they are written onto someone else’s computer, this act is legally held to be one of “reproduction,” which is not exempted by the first sale doctrine.  

Add the interim step of copying the data temporarily to ReDigi’s servers, plus the mass-market implications of such an enterprise, and the company’s first sale defense strays very far from the individual’s right to resell one legally-acquired copy of a work one time.  

ReDigi and its proponents seem to have hoped to make a case that this “reproduction” transaction is, in principle, analogous to the transfer of used copies in the physical world that spawned the first sale doctrine; but as the court held in its opinion, it would be the job of Congress to rewrite the statute to say what they seem to wish it said.  Meanwhile, I suspect that if such a legislative proposal were to be attempted, then history, case law, and market analysis would dictate that the first sale doctrine is untenable in a purely digital market. 

In this regard, it is funny how often copyright proponents are accused of clinging to our metaphorical buggy whips.  Because when the Supreme Court ruled in favor of retailer R.H. Macy in the case that established the first sale doctrine, New Yorkers were in fact still taking hansom cabs to go shopping! 

Relatedly, as I opined in one of those previous posts, it seems both futile and myopic to propose amending the copyright law in order to foster “resale” of digital files in a market that has already shifted so dramatically to streaming nearly everything on demand.  So, ReDigi was not so much clinging to old models as it was seemingly trying to cobble together a legal framework to support a new business model that may already be obsolete.    

Either way, rights holders should be very pleased with the outcomes in what I’ve called the unholy trinity of VidAngel, TVEyes, and ReDigi because the courts have upheld the principle that copyright’s limitations are meaningless if they stray so far as to eradicate its protections.