Tag: Featured

Black Panther & the American Creative Continuum

When Black Panther opened last month and proceeded to set records at the box office, it just so happened to be 200 years, almost to the day, after Frederick Douglass was born into slavery in Tuckahoe, Maryland. The significance of this particular symmetry might be observed through any number of lenses, including those distorted by presentist emotions, which tend to warp historic narrative. But one truth that unquestionably sits between these parenthetical milestones is a reminder that the progress of American democracy—namely the effort to define and shape its grand promises—has always been literary.

In his Narrative of the Life of Frederick Douglass, an American Slave, Douglass describes his introduction to literacy by Mistress Auld, and the consequent lesson inherent in Master Auld’s rebuke, as follows:

“From that moment, I understood the pathway from slavery to freedom. It was just what I wanted, and I got it at a time when I the least expected it. Whilst I was saddened by the thought of losing the aid of my kind mistress, I was gladdened by the invaluable instruction which, by the merest accident, I had gained from my master. Though conscious of the difficulty of learning without a teacher, I set out with high hope, and a fixed purpose, at whatever cost of trouble, to learn how to read.”

While still a fugitive, Douglass registered this book for copyright in 1845, and it was more than a year later that his friends purchased his freedom from Thomas Auld. This overlap in time, when Douglass owned intellectual property while he was still technically the property of another man, says a lot about the painfully bipolar identity of America, but it also reflects the fact that the evolution of the nation’s literary voice has always been intertwined with broadening the initially too-narrow meaning of American liberty.

As the last of the witnesses to the Revolution were dying off, the first generation of Americans born under the Constitution—most of the population was under 30 circa 1840—inherited the exciting, and often harrowing, task of defining what it actually meant to be American. For some, this entailed reconciling the declarative chutzpah of independence with the many social and political hypocrisies that manifestly betrayed all the beautifully-written hubris of the Framers. And one answer to this dichotomy was the advancement of a national literature.

By the time Douglass published Narrative, a literary revolution was already reshaping the fledgling nation. In an 1837 address at Harvard, Ralph Waldo Emerson called upon America’s next generation to produce literature that shed reliance on the conventions of England. “Our day of dependence, our long apprenticeship to the learning of other lands, draws to a close. The millions, that around us are rushing into life, cannot always be fed on the sere remains of foreign harvests. Events, actions arise, that must be sung, that will sing themselves,” he said in his opening remarks.

Any reader of Walt Whitman’s poetry will note Emerson’s use of the verb sing, and indeed “Leaves of Grass,” first published in 1855, was one of the most famously overt responses to this summoning of national identity through creative expression. Whitman was among the authors—others included Hawthorne, Melville, and Whittier—who coalesced around the newspaper The Democratic Review, founded in 1837 by John O’Sullivan. The mission of the Review was to advance a younger, more diverse, and more expansive vision of democracy through a literature of “original works treating commonplace themes with forcefulness, directness, and dignity,” writes historian Edward L. Widmer in his book Young America: The Flowering of Democracy in New York City.

This was America’s first generational culture clash, in which the Young Americans, as Widmer describes, stood in opposition to an older and more conservative population of Whiggish elites. It was this literary-political agenda that shifted the cultural center of gravity from Puritan Boston and Philadelphia to riotous, diverse, petulant, exuberant, and unabashedly commercial New York.

While a proper schematic of the social and political views among these forces is too complex to describe in a short post,* the emphasis on prodding the American creative voice into its own was intertwined with the general aim of expanding the promise of civil rights and dignity to a plurality of American citizens. “I speak the password primeval … I give the sign of democracy;/By God! I will accept nothing which all cannot have their counterpart of on the same terms,” wrote Whitman, who, interestingly enough, was an advocate of copyright as an engine of democratic principles more than one of economic necessity.

In the narrative of the ever-evolving American voice, we can draw a line from Douglass literally stealing literacy to transcend his captivity to the moment when Mark Twain in a single sentence in Huckleberry Finn simultaneously obliterates moral ambiguity about slavery and asserts the power of vernacular in American literature. “All right then, I’ll go to hell,” says Huck upon his decision not to turn in Jim as a runaway slave. From there, we can draw a long but clear arc to the video review by Danielle Radford for Screen Junkies in which she explains why Black Panther is “black as fu©#.” Because its cinematic language employs a vernacular that is uncommon among Hollywood blockbuster movies.

Yes, Black Panther is just a Marvel action film full of chases and fight scenes and magic, as expected. But that’s why it’s significant. As Radford describes, its subtle choices—the million tiny decisions where film artists are truly at work—broaden the cinematic language in a way that actually reverses her opening declaration. The relevance is perhaps not that the film is “black as fu©#” but that it’s American as fu©#. And it has always been the role of creative artists to write and revise exactly what that means.

*In particular, the subject of abolition among the various factions would require a whole post just to set the stage.

FOSTA passes House. Internet should be broken any day now.

Is the internet broken yet? I suppose if you’re reading this, it isn’t. And if you’re not reading this, you’re looking at something else. On the internet.

Yesterday, the House passed the hotly-contested FOSTA, which is now the acronym for the anti-sex-trafficking legislation that combines the earlier bill SESTA with various amendments. Eric Goldman has called the progeny a Frankenstein, a “worst of both worlds” bill that will only aggravate what he calls The Moderator’s Dilemma, meaning that internet platforms wanting to avoid potential liability for facilitating sex-trafficking will be stuck with two options: either moderate everything, which is impossible for some sites; or moderate nothing, which will disincentivize sites from acting responsibly, including the moderation of possible sex-trafficking content.

The argument that this legislation won’t help any victims of sex-trafficking, and might even make matters worse, has been echoed by the EFF and other “digital rights” organizations, including Mike Masnick in a recent post-game, Techdirt tirade, lashing out at various players in the industry, including Facebook, for fumbles and other tactical errors that allowed this legislation to succeed. All parties who’ve stood in opposition to these bills have complained about the political reality that nuanced arguments can be tough to present without looking like they’re being soft on sex-traffickers. And I understand how frustrating that can be. It’s almost like trying to discuss the finer points of copyright law while a mob is labeling you a draconian, Luddite, speech-hating, maximalist.

Nearly all parties expect this bill will sail through the Senate and become law, and time will tell whether it provides any form of remedy for the victims of sex-trafficking or, as the critics claim, creates undue liability for innocent site owners while doing nothing to address the underlying problem. But apropos concerns about Goldman’s Moderator’s Dilemma, it is important to remember that the alternative proposal is to maintain the status quo under which the site Backpage was generally held to be immune from both civil and criminal liability, despite sufficient evidence to indicate that a case against its owners should at least go to trial.

In an earlier post on this subject, I labeled the critics of anti-trafficking legislation the NRA of cyber-policy on the grounds that their approach appears strikingly similar when it comes to defending the absoluteness of the liability shields crafted in the late 1990s, at the birth of the commercial internet. In the present climate, it’s hard not to compare this advocacy with the calcified view of the Second Amendment insisted upon by gun-rights activists conflating civil rights with the profit motives of firearms manufacturers. Like the NRA, the EFFs of the world seem determined to accept only a maximalist approach to policy, even where some minimal amendment might do some good.

By “minimal” in this context, I mean that the fundamental safe-harbor mechanism in the Communications Decency Act doesn’t change substantively from what it was before these bills, other than to explicitly state that it was never the intent of Congress to provide immunity for alleged profiteering from sex-trafficking. Moreover, the population of internet enterprises that will even need to take notice of this new law is quite small. One’s business either has to be in some way involved in the sex trade (e.g. host adult ads), which is a limited set; or one has to host a large volume of user-generated content (e.g. YouTube, Facebook), which is also a limited set, but one that can afford compliance as these are some of the wealthiest companies in the world. Meanwhile, the remaining 99.X% of the internet should keep plugging along without feeling any particular urgency in a post-FOSTA environment.

I certainly can’t claim that FOSTA is without flaws—or even that I have the expertise needed to identify exactly what those flaws might be. But as imperfection is a natural characteristic of most legislation, this is supposedly why we have a judiciary tasked with interpreting statutes—and why I say that only time will tell whether this new law will achieve its intended benefits or yield unintended consequences. In either case, consumers who use the internet are unlikely ever to notice any change at all; and if even a few victims of sex-trafficking are actually helped in some way, this seems like an easy choice.

Meanwhile, I remain doubtful that the volume of doomsday rhetoric aimed at the anti-trafficking bills is ultimately about this legislation per se. One reason it seems clear that no provision would ever satisfy the staunchest critics—the EFF will even rail against voluntary measures instituted by industry—is that the slightest adjustment to the safe harbor shield in the CDA implies that perhaps the safe harbor can be amended in the DMCA, too. And that poses an existential threat—not to the internet, of course, just to the maximalists hellbent on defending laws passed in 1996 and ’98 as though they must be the last word for all eternity.

Important Win for Rights Holders in TVEyes v. Fox

In Monday’s post (and quite a few others) I stated that certain parties have worked very hard to distort the character of the fair use doctrine until it no longer has any boundaries or meaning, and simply nullifies copyright’s protections. For the last two years, every time I’ve made that accusation, the case foremost in mind has been TVEyes v. Fox News. But yesterday, on Day Two of Fair Use Week, the Second Circuit Court of Appeals handed down an opinion that draws some freshly sharp lines around the traditional limits of fair use in an age when tech ventures consistently try to describe mass copyright infringement as innovation. Rights holders of every flavor should feel relieved by this decision, especially as it upholds the conditional and narrow finding of fair use in the Google Books case.

The court rejected all  the defenses presented by TVEyes, but the most significant part of this story involves the relatively novel doctrine of “transformativeness,” which is weighed when considering the first of the four fair use factors, and has split into two main interpretations. The first interpretation, applied in Campbell (1994), describes the transformation of one expressive work into a new expressive work (i.e. the kind of fair use most creators care about). The second interpretation, most prominently applied in Google Books (2016), describes a much more broad transformation of a useful technology, which necessitates copying protected works in order to function. (See today’s Copyhype post on transformativeness.)

The latter interpretation has made rights holders rather anxious as several tech companies have tried to assert that the “transformative” doctrine—and especially the holding in Google Books—provides a rationale for just about any new tech venture to commit mass infringement on the grounds that the novelty of the enterprise alone can be described as “transformative.” TVEyes, which stored, organized, and made available nearly all of Fox’s programming to its institutional and corporate customers (see a more detailed discussion here), relied substantially on this interpretation of “transformativeness” in its defense. But yesterday, the same court that wrote the opinion in Google Books made a clear distinction between that case and this one, holding that the TVEyes model is not a fair use.

The majority of the panel held that TVEyes’s “Watch” function, which enabled viewing whole programs in 10-minute segments, was “slightly transformative,” but so modest as to be outweighed by the rest of the fair use analysis. In particular, the third and fourth factors were short work for the court because TVEyes made nearly all of Fox’s content available (weighing against them under the third factor) and “usurped a market that properly belongs to the copyright-holder” (weighing against them under the fourth factor) by creating a means of distribution that a creator has the exclusive right to develop for itself.

Interestingly, Judge Lewis A. Kaplan wrote a concurring opinion, dissenting solely on the majority’s analysis of “transformativeness,” holding that the consideration itself was not necessary; that a finding of “slightly transformative” adds further ambiguity to an already ambiguous doctrine; and that, if he were to consider the matter, he sees no evidence that TVEyes is the least bit “transformative” under a fair use analysis. In fact, Kaplan’s opinion may prove especially significant in drawing a distinction between Google Books and other tech ventures hoping to exploit the ambiguity of “transformativeness.” Kaplan writes…

“The facts here…differ from Google Books quite substantially. The snippet function considered there delivered much less copyrighted content than the Watch function at issue here. Nevertheless, we there concluded that the snippet function only ‘adds’ to the transformative purpose of the Search function. Our conclusion with respect to the Google Books snippet feature therefore does not control the proper characterization of the Watch function at issue here. Moreover, we cautioned in Google Books that the case ‘test[ed] the boundaries of fair use.’”

TVEyes may appeal this ruling since it does put an end to their business model; but it’s hard to imagine the Supreme Court granting cert, unless it were exclusively to further clarify the “transformativeness” doctrine. There doesn’t appear to be anything else for the Court to resolve. And given the rationales applied by the Second Circuit here—especially drawing such clear distinctions between its own precedent opinion and this one—it seems like a big stretch for TVEyes to expect an appeal to go their way, even if the Supreme Court did hear the case.

Rights holders should be very pleased with this outcome, as should anyone who believes that legal systems have contours. Fair use is an important exception to copyright’s exclusive protections. But it is simply common-sense to conclude that every tech company that develops another method for exploiting someone else’s work—TVEyes, ReDigi, VidAngel, etc.—cannot call itself “transformative” and get away with it. One can show great ingenuity in hacking, embezzlement, or counterfeiting, too, but that doesn’t make these enterprises legal. Thankfully, the Second Circuit agrees.