Tag: Featured

KinderGuides & Copyright:  A Tale of Wishful Thinking

An important and instructive decision was handed down this week by New York District Court in the KinderGuides case. KinderGuides is a series of children’s books that include adaptations of classic works with some commentary about the authors and the stories.  Publisher Moppet Books has released illustrated, young-reader versions of works from the public domain like The Odyssey and Jane Eyre. But when they decided to launch a series of modern American classics still under copyright, this prompted litigation by rights holders who had not licensed their works to Moppet for adaptation.

At issue were Hemingway’s The Old Man and the Sea, Truman Capote’s Breakfast at Tiffany’s, Jack Kerouac’s On the Road, and Arthur C. Clarke’s 2001:  A Space Odyssey.  The suit against Moppet was filed by a group of plaintiffs including Penguin Random House, Simon & Schuster, and the estates or trusts of the four authors.  Now, before we ask the very reasonable question as to whether the Capote and Kerouac books in particular belong on a young child’s bookshelf in any form, hold that thought while we address the copyright story because it’s a lulu.

Moppet is the business venture of Frederick Colting and Melissa Medina. In 2009, Colting was successfully sued by the estate of J.D. Salinger for publishing an unauthorized sequel to The Catcher in the Rye. The New York Times reported in January, “Given the suit field by the Salinger estate, some in publishing were surprised that Mr. Colting would publish children’s versions of copyrighted works.”

What I find particularly striking about Judge Rakoff’s opinion in this case is that we can infer from his wry rejections of the defendants’ logic a narrative in which Moppet hoped to translate personal and generalized criticisms of copyright law into a series of affirmative defenses for having broken the law.  Rakoff was unequivocal in his dismissal of all of Moppet’s arguments, using terms like “absurd theory,” “exercise in sophistry,” “no support in applicable law,” and my personal favorite, “Implicit in defendants’ argument, then, is a contention that the Copyright Act itself is unconstitutional.” Suffice to say, Moppet did not have a good day in court. But let’s look at some of the important issues.

Substantial Similarity

In order to infringe the right of reproduction in regard to this kind of adaptation, the plaintiff must show that the new work is “substantially similar” to the original. So, if a short and sanitized story about a girl named Holly Golightly contains essential elements from Truman Capote’s novel, then it will be considered “substantially similar” to the original under the law.  Bizarrely, though, Moppet tried to argue that the characters and narratives in all four of the novels were “stock” elements not protected by copyright.  For instance, it appears they tried to claim that Holly is just any “small town girl with a tough past.”

This is an inscrutable claim coming from a publisher that aims to produce and sell children’s versions of classic literature.  Because if there were truly no “substantial similarity” to the original, as they tried to argue—if the Holly they presented in their version bore no resemblance to Capote’s character living out Capote’s narrative—then, Moppet would  probably be guilty of fraud—and possibly infringement of Capote’s right of publicity—because they would be selling their customers a book that has nothing whatsoever to do with Breakfast at Tiffany’s.  You can’t have it both ways; either it’s an adaptation or it’s a different story.

From Rakoff’s remarks, it seems the defendants tried to argue that the creative expressions in the novels are “fictional facts,” which were then “summarized” in the KinderGuide books.  This is the part Rakoff called an “exercise in sophistry.”  Legitimate summaries, as one might find in a book review, literary criticism, or a Cliff’s Notes type study guide, are patently distinct from adapted retellings of the stories themselves.  What KinderGuides produced were illustrated, children’s adaptations of the novels, which makes them “derivative works” under copyright law, rather than “guides” or other forms of comment about the novels.

Derivative Works

A rights holder retains the exclusive right to prepare derivative works (§106 (2)), which includes various types of works that are “based on the original works of authorship.”  So, products like film adaptations of novels, fictionalizations of non-fiction works, sound recordings, spin-offs, sequels, and translations are all examples of works that only the author has the right to prepare or license others to prepare. And this would naturally include children’s versions of novels that were originally written for adults.

The term “based upon” can be confusing because fair uses and new expressions are “based upon” works all the time.  Here, Judge Rakoff makes the distinction by reference to a case in which a Harry Potter Encyclopedia was held not to be a derivative work:

“A work is not derivative, however, simply because it is ‘based upon’ the preexisting works. Only works that are ‘recast, transformed, or adapted’ into another medium, mode, or language while still representing the ‘original work of authorship’ are derivative.

Here, though defendants’ Guides add additional material at the end, specifically a few brief pages of “Analysis,” “Quiz Questions,” and information about the author, they are primarily dedicated to retelling plaintiffs’ stories. Two pages of analysis do not convert the Guides overall – which are largely composed of “Story Summaries” – into something that no longer “represents the original work of authorship.’”

We see this happen with some frequency in the digital universe where repurposing content is relatively cheap and easy. A party wants to capitalize on the brand value of a notable work by making a use that infringes copyright, but they hope that some minimal measure of addition or change to the original work will meet the standards of fair use.  In fact, Rakoff’s opinion states that Colting and Medina “‘went to great lengths’ to achieve fair use protection,” implying that they made decisions based on how they believed fair use works (or how an attorney mis-advised them) but with little understanding of the actual doctrine.

Judge Rakoff held that defendants would be unlikely to prevail in weighing all four factors of the fair use test, stating, “Fair use…is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.”  Even with my limited experience in the world of copyright law, I can imagine that quote will be cited in many fair use cases to come. It is one that should resonate with bloggers, YouTubers, and other digital-media creators who frequently imagine various uses to be fair uses when they are not.

Copyright is Not a Use-It-Or-Lose-It Right

One of the most important lessons in this case is revealed in the consideration of the fourth fair use factor, which weighs the potential market harm to the original works of authorship. While it is reasonable to think that a children’s version of a classic novel should have either no negative impact—or even a potentially positive impact—on sales of the original works, this is not the question on which the matter turns.

The exclusive rights in copyright, including the preparation of derivative works, are a not a use-it-or-lose-it proposition.  The author retains the right to change his mind and, for instance, prepare derivative works at any point during the term of copyright protection.  That right includes preventing the preparation of derivative works that the author or his assigns believe to be inappropriate uses of the original works.

Based on Judge Rakoff’s opinion, it seems that Colting and Medina were of the opinion that because the rights holders of these novels had not yet prepared children’s versions of these decades-old books, that some sort of limit had been reached, which should allow them to create their KinderGuides versions.  This reads as an attempt to argue that the defendant’s opinion that copyright terms are too long is the same thing as an affirmative defense for infringement.  “Indeed, the fact that any given author has decided not to exploit certain rights does not mean that others gain the right to exploit them,” stated Rakoff shortly before he opined that the defendant’s argument in this regard is tantamount to calling the copyright act unconstitutional.

Value to the Public

This rather arrogant assumption that the right to exploit a work in a specific way should devolve from the rights holders as a consequence of non-exploitation raises a question of value for me that is separate from—but adjacent to—the copyright issues.  As a parent who is reasonably well-versed in the literary arts, I’m skeptical about the value KinderGuides would be providing in this particular case.  If Kerouac-Lite existed, I don’t see why I would buy it for my kid.

As described in an older post, I remember being a new parent in the 1990s when the market exploded with billions of dollars worth of products and services designed to mold our children into geniuses.  It became necessary to step back from all that frenzy and think about which choices are truly in the interest of the child in contrast to those which more likely appeal to the egos of the parents.

In fact the 2016 New York Times headline announcing Moppet’s foray into American classics virtually echoes this tension between parent ego and child education.  Forget ‘Pat the Bunny.’ My Child Is Reading Hemingway, it says.  The notably careless mention of Pat the Bunny, which is a pre-reader’s tactile book, brings back memories of getting swept up in the marketing of things my kids don’t actually need.  One does not segue from Pat to Papa quite so rapidly.  And my instinct is that one shouldn’t.

My personal view in this regard is that children’s versions of works that may be described as foundational building blocks of literature and culture—The Odyssey, the Bible, Shakespeare, Norse Myths, Little Women, etc.—can be tremendously valuable.  While the 6-12-year-old is still learning fundamental literacy like spelling and grammar, this is a good time to introduce simplified versions of ancient stories and themes they will later discover resonating throughout their reading experiences. At least that’s the hope.

But publishing children’s versions of novels like On the Road or Breakfast at Tiffany’s in particular smacks of market opportunism with dubious educational value, especially in contrast to the wealth of great literature written purposely for children.  It’s not that it wouldn’t be possible to legally write the children’s version of a story about an “American geisha” (as Capote described Holly Golightly), so much as one has to wonder why one would do so.  Thankfully, Judge Rakoff offers a sober and informative opinion regarding KinderGuides’ efforts before they get any ideas about the works of Anaïs Nin.

Taking a Serious Look at SESTA

Well, here we go. The internet industry, with its cortege of hyperventilating helpers, is shouting censorship at the prospect of passing Senate Bill 1693, known as the Stop Enabling Sex Traffickers Act (SESTA). With its usual flair for nuance, the Electronic Frontier Foundation declares that the measure would SPELL DISASTER FOR SPEECH AND INNOVATION. Again.

There is, of course, nothing wrong with defending speech and innovation, but there is a lot wrong with doing so while overlooking the fact that the internet does foster unintended negative consequences, like fake news or the ability to innovate new ways to commit old crimes. As usual, the issues constituent to SESTA require more serious consideration than the standard talking points on the theme that Section 230 of the Communications Decency Act (CDA) is sacrosanct and that any amendment to it will necessarily destroy all that is good and great about cyberspace.

In fact, this story is clouded by a number of complex topics, including some questions that remain unanswered. As such, this post is not a full-throated defense of S. 1693, but rather an attempt to unpack some of the overlapping issues. Whatever the practical pros and cons may be of passing this bill, though, the one thing that seems certain is that the internet will be just fine. Whatever that means. For context, it’s worth remembering that many of the legal remedies called for in SOPA (which was going to destroy the internet in 2012) have been applied in specific cases worldwide, and still the internet hums along. Or screams. Or whatever it does.

Section 230 of the Communications Decency Act

I’ve written in some detail about CDA 230 in other posts, but here’s a refresher:

The liability shield provided to ISPs by Section 230 came about as an effort to incentivize good samaritan behavior on the part of online service providers. Simply put, if the ISPs and web platforms would take action to prevent “obscenity” and “sexual exploitation of children” from appearing on their platforms, taking this action would not consequently place the providers in the role of “publishers,” which would otherwise make them subject to liabilities for various third-party content posted by users.

Since its passage in 1996, Section 230 has been the foundation of the principle that service providers are generally held harmless for any civil or criminal liabilities that may result from the actions or speech of their users. As a simple example, if I commit libel on this blog, the harmed party may not successfully sue WordPress.

On the other hand, even in cases where site owners are clearly or allegedly taking affirmative action to control the content on their sites (i.e. playing the role of publishers), defenses of blanket protection under CDA 230 have been argued in court and have been supported by the internet industry as well as organizations like EFF. This refers to the Backpage story, but more on that below. (Also see this post about Yelp!.)

S. 1693 Proposal

The Stop Enabling Sex Traffickers Act (SESTA) is a bi-partisan bill introduced by Senator Portman (R-OH). The substantive change to Section 230 of the CDA would add language pertaining to anti-sex-trafficking to sub-section (e)(1). This is the part of the statute stating that 230 has “no effect on criminal law.” The statute already singles out “obscenity” and “sexual exploitation of children” apropos the CDA’s original intent, and 1693 would add language explicitly stating that Section 230 shall not be construed to impair the enforcement of laws prohibiting “sex trafficking of children; or sex trafficking by force, threats of force, fraud, or coercion.’’

The EFF states that this language will “… expose any person, organization, platform, or business that hosts third-party content on the Internet to the risk of overwhelming criminal and civil liability if sex traffickers use their services.” Assuming this declaration alone were true, let us at least clarify that even if the amended CDA were to result in an uptick of trafficking victims attempting to sue the likes of Facebook, Google, and Twitter (and that’s a huge IF), this would in no way “spell disaster for speech and innovation online.” It’s a bit like claiming that if GM were sued in a class-action for some kind of passenger-safety negligence, then all automotive innovation would consequently come to a halt.

To read the EFF rhetoric in defense of “small internet businesses,” one might get the idea that sex traffickers can easily exploit any type of platform unbeknownst to the owners and thus threaten the site owners with liability for a crime they didn’t commit. How that would happen in the real world, though, is hard to fathom. A platform would have to be fairly large, like Facebook or YouTube large, for traffickers to exploit the site for any period of time before being caught by its operators. At that point, as long as site monitors take appropriate action to remove material and/or notify law enforcement, the liability shield of Section 230 is still in force.

All 1693 appears to do is state that platform operators are no more allowed to facilitate sex trafficking than they are allowed to host child pornography. Note the absence of child porn on legal web platforms and the endurance of speech and innovation. More specifically, sex traffickers are going to operate via sites that are already involved with the sex trade, which is not the majority of websites.

Efficacy in Fighting Trafficking

Whether or not a bill like 1693 can have an actual effect on mitigating sex trafficking is a far more complex and critical question than whether or not this amendment to the CDA would have the chilling effects implied by EFF and others. Unfortunately, the very reasonable questions about efficacy are being exploited by the internet industry as a “right goal, wrong solution” talking point. In this regard, I believe the track record speaks for itself: these parties typically reject both legislative and voluntary measures out of hand when it comes to mitigating various type of harm caused via web platforms. So, it is hard to take their objections without a big chunk of salt.

Several of the usual suspects critical of SESTA have picked up on a new paper written by Professor Alexandra Levy, an expert in human trafficking at Notre Dame Law School. Titled The Virtues of Unvirtuous Spaces, Levy asserts that measures like shutting down “adult” sections of websites and/or by holding the site operators accountable for trafficking that may occur via their sites, we may lose opportunities to identify and rescue victims. In a nutshell, Levy contends that “adult” sites like Backpage make trafficking visible to the public and to law enforcement when it would otherwise be less visible while still occurring at the same scale. So, if a bill like 1693 would indeed result in fewer victims being rescued, Levy argues, then it is simply bad policy.

It’s hard to disagree with that premise, but the core question she asks demands an answer based on data; and her paper falls short, in my view, with regard to solid evidence. While it is undoubtedly true that public postings in an adult section of a website must expose criminal activity and, therefore, lead to liberation of victims and arrests of traffickers, the question Levy’s paper does not adequately address is whether or not certain sites have fostered an increase in trafficking overall by providing low-risk opportunities for traffickers and “customers” that otherwise would not engage in trafficking. If certain websites have led to a substantial increase in trafficking, while also resulting in a handful of victims being rescued, this is not a net positive.

Levy does question whether trafficking overall is in fact on the rise or if only reports of trafficking are on the rise, but absent clear data to answer exactly this question, she still draws the reader to conclude that it is better to have sites where trafficking may occur than it is to vilify the sites and their owners. She may be right, but her paper seems overly reliant on anecdotal evidence to support this conclusion. Moreover, Levy relies considerably on a narrative in which prudish legislators, attorneys general, and citizens may be acting on a desire to hide unsavory behavior more than they are interested in saving victims from criminal activity. In this sense, S. 1693 is portrayed as legislative theater—motivated by an eagerness to show that action is being taken and to blame someone for the deplorable crime of trafficking.

Levy suggests that website operators make easy targets with the added bonus that, if their sites are shut down, the problem seems to vanish when it really doesn’t. She may be correct in her assumptions about some of the characters in this overall narrative, but her overemphasis of this theme strikes me as a distraction from the central question. Either certain sites drive an increase in trafficking or they don’t. In either case, despite the internet industry pundits’ trotting out Levy as a reason to leave 230 alone, her arguments — right or wrong — are not necessarily relevant to amending the statue. And that brings us to Backpage.

The Backpage Question

The only issue at hand with regard to the operators of Backpage is whether there is substantial evidence to show that they took affirmative action to control the content of their site. If so, this should vitiate their liability shield under Section 230 and leave them open to both criminal and civil litigation. If law enforcement, Congress, or an AG can prove that the operators acted as “publishers,” the CDA is no longer a defense; and if the government can further demonstrate that the parties knowingly took affirmative action which either contributed to trafficking, or engaged in willful blindness to trafficking, these are criminal acts.

Hence, Levy’s proposal that a site like Backpage may lead to some amount of interdiction, while worthy of discussion in a certain context, is irrelevant apropos the criminal conduct (or not) of the Backpage owners. (To put this in another context, if the manager of a child services organization rescues ten thousand kids and only molests five of them, guess what’s going to happen.) More specifically, it is very hard to see how Congress’ singling out sex trafficking in the CDA, while leaving the rest of the statutory mechanisms in place, is informed much by Levy’s paper at all. Either the operators of Backpage committed crimes or they didn’t, regardless of any unintended benefits of the site’s existence.

(I wish to make it clear that I have no view at this time as to the guilt or innocence of the site owners at Backpage. That’s an ongoing investigation, and due process must be respected. The emphasis on possible criminality in this post is in the service of making points about the CDA.)

In October of last year, I wrote about the arrest and the indictment against Backpage CEO Carl Ferrer and two of his associates. At the time, the evidence seemed fairly damning, but by the end of the year, a California Superior Court dismissed the felony charges against all three. This July, The Washington Post reported that new evidence has come to light indicating that the site operators have been active participants in directing the sex-trade content of the site. The Post also reports that early in 2017, a Senate subcommittee investigation revealed that the Backpage operators had been editing “adult” ad language to disguise incidences where underage girls were involved.

The “adult” ads are the source of Backpage’s millions in revenue; the ads for toasters and car parts, etc. are free while the “adult” ads are paid. So, there is no question that Backpage is in the sex business; the question is whether or not they’ve ever been in the trafficking business, too. It is admittedly a very blurry area, where the consensual sex trade, consensual hook-ups without trade, and sex trafficking all intersect.

It’s easy to get lost in the emotional responses to the themes in this story—from revulsion to a depraved criminal act to myriad views about sex in general. And then, along comes the EFF and the internet industry crying censorship and labeling S. 1693 yet another existential threat to the almighty internet. I believe we can have a very high degree of confidence that the bill presents no such hazard to the web, even if we don’t have sufficient evidence to determine whether this amendment itself would help mitigate trafficking or worsen the plight of victims — as Professor Levy suggests would be the case.

Section 230 was never meant to be a blank check, despite many internet advocates’ attempts to portray it as such. If nothing else, that’s what Congress seems to be saying with this bill; and the internet industry might want to consider how far they’re going to press the theory that the law was ever meant to shield criminal conduct. To the contrary, this section of the CDA began as an effort, for better or worse, to protect children from exploitation; and if it is proven that a few site owners willfully facilitated the exploitation of children, the Googles and Facebooks of the world might want to worry less about their liability exposure and more about the commitment to be the good samaritans that the law they cherish actually requires.

Spotify in Songwriters’ Crosshairs Again

In July, two new lawsuits were filed against the streaming service Spotify, alleging willful copyright infringement on a “staggering scale.”  Publisher Bluewater Music Services and songwriter, musician, and producer Robert Gaudio (formerly of The Four Seasons) both accuse the streaming service of infringing the reproduction and distribution rights of songwriters by failing to obtain mechanical licenses for several thousand songs represented by the two complainants combined. 

In late August, Spotify filed a motion with the court alleging that the complainants were treating their service as though it were “a new Napster,” asserting that the complaints are unclear in their allegations, and, therefore, requested a More Definite Statement. Spotify further indicated that they are prepared to defend themselves if the complainants can more clearly articulate exactly what Spotify is supposed to have done.  States Spotify …

“Plaintiffs allege that Spotify “reproduce[s]” and “distribute[s]” Plaintiffs’ works, thereby facilely checking the boxes to plead an infringement of the reproduction and distribution rights. But Plaintiffs leave Spotify guessing as to what activity Plaintiffs actually believe entails “reproduction” or “distribution.” The only activity of Spotify’s that Plaintiffs identify as infringing is its “streaming” of sound recordings embodying Plaintiffs’ copyrighted musical compositions.”

The Gaudio and Bluewater complaints lay out a broad narrative that accuses Spotify of building a multi-billion-dollar business while knowingly exploiting thousands of songs over a period of years without obtaining mechanical licenses, hence the “don’t call us Napster” response from Spotify. The complainants further state that the $43-million settlement resulting from a class-action suit brought by David Lowery and Melissa Ferrick was little more than a slap on the wrist; that it amounts to $4 per infringement; that it provides no disincentive to continue infringing; and that the lion’s share of the money will go to the major labels anyway.

Further, with Spotify poised to go public, the complaints also cite the major labels’ agreements to exchange sound recording rights for equity in the streaming company. Gaudio/Bluewater describe these deals as an obstacle to the labels themselves holding Spotify to account for using unlicensed works. 

Counter to this narrative, however, Digital Music News reports that the music publishers represented by the National Music Publishers Association (NMPA) have “declared war on Spotify,” citing CEO David Israelite stating that Spotify’s assertions in its response mean that it is now in a fight with “all songwriters.”  What did Spotify say to trigger Israelite’s comments?  Well …

Despite the demand for a “more definite statement,” the Spotify brief is a bit cryptic itself.  It balks at some of the language in the Gaudio/Bluewater complaints, defending the company as an above-board, legal service that should not be compared to pirate sites et al. They may be protesting a bit much, though.  The “infringe now, settle later” strategy of which they’ve been accused is implicit in the Lowery/Ferrick suit and is certainly an approach consistent with most tech companies whose core business depends on the exploitation of creative works.

The only salient, triable issue at the bottom of all the rhetoric is the question ofwhether Spotify repeatedly infringed Sections 106 (1) & (3) of the copyright act by making use of songs without mechanical licenses.  To this, the Spotify brief comes extremely close to claiming that they don’t need mechanical licenses. The music site Complete Music Update published a whole article under exactly that headline, and the declaration was precisely what triggered the unequivocal response from Israelite at the NMPA.

Spotify has asserted that streaming only implicates the public performance right (§106(4)), which they state is amply covered by paying license fees to the performing rights organizations (PROs) that manage those rights.  Mechanicals are required separately—and obtained as compulsory licenses for rates set by a rate court—for anyone seeking to reproduce or distribute a song. For instance, an artist who wants to record a cover song on her new album needs a mechanical license.

While it may not be completely unreasonable to argue that streaming is a public performance rather than a distribution, that would only alleviate the infringement of §106(3).  It is not possible for Spotify to provide its service without reproducing files on its servers; and there is sufficient case law (including Napster) to affirm that this type of copying implicates the reproduction right (§106(1)). Moreover, as the CMU article observes, it is worth asking why, if Spotify believes it does not need mechanical licenses, the company settled the Lowery/Ferrick class-action suit, which was entirely based on the use of songs without mechanicals.

Additionally, Spotify’s mobile app enables downloading, at least for subscribers, and this would seem to implicate distribution.  Anticipating this response from the complainants, the Spotify brief bizarrely states that it would assert a defense of fair use.  Not only does that sound like a non-starter, but it’s a pretty odd thing to say after asserting that you never needed the mechanical license in the first place. 

As for the some of the more rhetorical aspects of the briefs, Spotify accuses Gaudio/Bluewater of “dangling” big money in front of the Ferrick class members and of painting the streaming service with the same brush as Napster and other piratical enterprises.  Meanwhile, Gaudio/Bluewater make an intriguing point that as Spotify continued to raise hundreds of millions of dollars for its growth, none of those resources were apparently directed toward improving the company’s ability to ensure the mechanical licenses were paid for all the music on the platform.

Based on Israelite’s statement, if Spotify doesn’t walk back the claim, this fight could turn existential for the streaming company. As a matter of copyright history, the transition to music streaming may be one of those threshold moments that ultimately requires Congress to recalibrate the statutes according to the intent of IP in the first place. Because if the courts were to agree with Spotify that mechanicals are simply not required for streaming, and we consumers do nearly all of our listening via streaming, this would undermine the incentive for songwriters and composers, which is foundational to the existence of copyright.