Tag: Featured

Ciao Internet Association. It’s been weird.

IA has made great progress on its mission to foster innovation, promote economic growth, and empower people through a free and open internet. As this chapter closes, member companies remain committed to advancing public policy in support of this mission and will continue to work with stakeholders in other capacities. – Board of Directors Statement on IA’s Future –

Thus spake the Internet Association upon announcing that it will cease operations at the end of this year; and anyone engaged in advocating the rights of creative professionals (i.e. copyrights) shall be forgiven their moment of schadenfreude. While it would be inaccurate to say that this lobbying organization was formed by the major internet platforms in response to the anti-piracy bills SOPA/PIPA, it was certainly no coincidence that IA formed concurrently with Silicon Valley’s extraordinary efforts to kill that legislation, which Congress abandoned in January of 2012.

It was the holiday season of 2011 when nearly every Member of Congress and the Obama White House expected the anti-piracy bills would pass easily into law. Neither Google, nor any of the internet giants, had much of a lobbying presence on Capitol Hill, but they did have an unprecedented advantage as an industry insofar as they owned the platforms we were all using to “share information” and shape one another’s views. They controlled the algorithms that prioritized results in a search or a newsfeed, and they had the data to show how effective a dumb meme could be for animating political action.

I believed then, as I do now, that the Stop SOPA campaign was a primer in how to affordably and effectively unravel a democratic republic—a little lie that taught others how to tell much bigger lies. At the same time that organizations like the EFF were congratulating themselves and the public for the “grassroots” effort that stopped those bills, Silicon Valley companies were already having discussions about getting their act together in Washington.

In addition to Google growing its own presence in D.C. from a whisper to a roar, they joined with Facebook, eBay, Amazon, and others to form the Internet Association, which was announced in the media in July of 2012—just six months after the defeat of the anti-piracy bills. The unstated mission of IA, couched in vague terms like “innovation” and “openness,” was arguably to maintain the status quo and keep the pesky laws of the “real world” from infecting the self-governing idealism of cyberspace.

Now, in a very different climate in which we even see Facebook make a show of asking Congress for regulation, it is fair to say that the status quo the IA was formed to maintain is a lost cause. Further, according to Politico, the organization’s funding imploded on the weak link that the giants’ interests are unsurprisingly not wholly aligned with the smaller members. The article quotes Yelp senior vice president of public policy Luther Lowe, using a colloquial acronym for Google, Apple, Facebook, and Amazon and stating, “This org could’ve saved itself years ago by kicking out everyone with a market cap greater than $500b (i.e. GAFA). I made this suggestion to the leadership a few years ago, but it was shot down, so we quit.”

Pause for schadenfreude. Go ahead. You’ve earned it.

In 2019, Netflix left the Internet Association and joined the Motion Picture Association—the same organization that lobbied for the anti-piracy bills and which was therefore cast as the leviathan that would “destroy the internet” and “end free speech” for the sake of a few more dollars for its movies, and all because the studios were “clinging to the dead model of copyright in creative works.” The Netflix switch was hardly a surprise for a company that was, in fact, a movie studio, but the point is that the foundation of IP protection for creative works endures while the underlying rationales for killing anti-piracy legislation in 2012 have not aged well.

Netflix, like any film producer, entertains millions of viewers while vague Silicon Valley’s vague allusions to speech rights and connecting people stammer in hearings on Capitol Hill, and lawmakers confidently announce that the free ride for internet platforms is over. Whether that means revision to liability standards like Section 230 or meaningful antitrust enforcement, etc. remains to be seen—especially while bipartisanship on these issues remains entangled in the kind of disinformation that metastasized on social media, and which is still endorsed by a consequential faction of the GOP.

While I am highly skeptical that legislation alone will help us restore the conduct necessary to maintain a healthy democracy, I do believe that there are policy-based solutions to particular harms like social media addiction in teens, nonconsensual pornography and harassment, predatory antitrust conduct, and, yes, rampant copyright infringement.

Such matters can and should be addressed through legislative action, and in that regard, the end of the Internet Association after just under a decade of operation should affirm at least two truths:  first, that maintaining the laissez-faire approach to cyber policy was always folly; and second, that there is no “the internet” to defend against public policy. The internet is just a network of machines upon which every individual and every business, small and large, is mutually dependent. So, ciao, Internet Association. It’s been weird.

AAP Sues Maryland over eBook Licensing Law

“Remarkably, the Maryland Act subjects publishers to civil and criminal liability for attempting to exercise their exclusive rights in the very manner envisioned by the federal statute.” – Complaint in AAP v. Attorney General of the State of Maryland.

It is inherent to the exclusive rights of the Copyright Act that authors may decide the manner in which their works are made available. When, where, and at what price to release a novel, a motion picture, a record album, etc. to the public is implicitly the sole right of the copyright owner, and the case law is replete with affirmations of this principle. The Constitution empowers Congress to secure the rights vested in authors, and as of the Copyright Act of 1976, federal copyright law preempted common law copyrights to bring the U.S, under a uniform code in the interest of justice and administrative sanity.

Yet, at the urging of a handful of library associations, the State of Maryland was the first of several states to enact a law, which amounts to a state compulsory license on eBooks. Rhode Island and Massachusetts have similar bills in the works, and New York’s eBook library licensing bill only awaits the governor’s signature.

On December 9, the Association of American Publishers (AAP) filed suit against the Attorney General of the State of Maryland, seeking to bar enforcement of the Maryland Act, which would take effect on January 1. The lawsuit was inevitable. The Maryland Act is unconstitutional as a matter of law; it does not address a real problem as a matter of policy; and it is downright insidious as a tactical move in a broader strategy to weaken copyright law for all creators of works.

The mechanisms in the Maryland Act, which implicate exclusive copyright rights, include the requirements to:  1) make all eBooks available to libraries in the state simultaneously with making them available to the state’s consumer market; 2) allow state libraries to obtain unlimited eBook licenses; and 3) make eBook licenses available on “reasonable terms.”

The availability mandate reveals that these bills are predicates to more than eBooks because, for instance, libraries also lend motion pictures, whose producers often depend on windowing releases as part of their market strategy. The unlimited license provision elides the fact that a single eBook library license may serve dozens or hundreds of readers in contrast to a consumer’s purchase of a single eBook. And that omission conspires with the uncertainty that “reasonable terms” is undefined in the Maryland Act, which means the state would be setting terms, and therefore, supports the conclusion that this law amounts to a compulsory license.

The Maryland Act is Unconstitutional

Setting aside all other matters, I predicted in my last post on this topic that any federal court will likely hold that these bills are unconstitutional on the basis that the Copyright Act preempted the panoply of state copyright laws that existed prior to the 1976 Act. Jonathan Band, who lobbies for both the American Library Association (ALA) and the Computer and Communications Industry Association (CCIA), alleges that preemption does not exist here, saying that the Maryland Act only “regulates licensing terms” (akin to contracts), which is outside the scope of the exclusive rights secured by the federal copyright law. This is verbal legerdemain.

If a state enforces a law, under pain of civil and criminal penalty, dictating the terms by which a copyright owner may exercise his rights, then under the walks-like-a-duck doctrine, that is what we call a state imposed compulsory license. And because it is the sole purview of Congress to codify compulsory licenses in the federal copyright law, preemption clearly applies. Congress has never codified a compulsory license for literary works, and we should also note that the compulsory license for musical works is a relic of a bygone era doing considerable harm to songwriters in the digital market.

The eBook Bills Do Not Remedy a Problem

There is a reason why the library associations who have lobbied for these state bills, speak in generalities and platitudes like “being shut out of the marketplace of ideas.” Because they do not present real data to support a claim that these state bills serve an unmet need among the library-going public. Most of the publishers (certainly most of the majors represented by AAP), already release new titles to libraries concurrently with releases to the buying public. So, that’s not really a complaint.

If the libraries allege that eBook license fees are onerous, they should be required to support that claim with numbers while acknowledging that eBook lending is distinctive from eBook selling, and then demonstrate how their constituents are underserved as a result of current licensing models. As mentioned in other posts, the libraries may not want to go there because their own lending data do not reveal a public clamoring for works of history and literature which they otherwise cannot access. So, it’s easy for the library groups to lodge general complaints and plead for overreaching laws while the publishers’ more difficult task may entail making decisions about format, timing, or pricing to give a specific title its best shot in the market.

Further, as the AAP complaint states, “The Maryland Act is not a reasoned response to any broad concerns in the digital market. To the contrary, it appears that the state law is motivated by discontent with a single technology company that has at times refused to distribute to libraries the ebooks and audiobooks that it publishes. The Maryland Act’s legislative history and public statements by state legislators and public officials reveal some very specific concerns about this company, Amazon, which is not an AAP member.” [emphasis added]

Amazon behaving badly and making a mess for everyone else? Hardly a stretch, right? That company has exerted so much predatory influence across so many markets, including publishing, that it deserves its own antitrust division at the DOJ. But if the AAP complaint is based on an accurate read of the legislative background, it sounds like the parties lobbying for these bills and gaining the sympathies of legislators maybe using the word publisher, when what they really mean is Amazon. But, of course, we must remember that these state bills have very little to do with access to eBooks.

Weakening Copyright Law is the Goal

These eBook bills are not about addressing a narrowly defined problem faced by libraries. Libraries enjoy many carve-outs in the copyright law, and if they have sufficient evidence to argue for a new and specific exception vis-à-vis eBooks, then directly lobbying Congress for such a provision would be more honest and more efficient. But the agenda driving these bills is anything but narrow. Aside from the implications for other categories of works (like motion pictures mentioned above), the various interests backing the eBook library bills knew they would be litigated, and they probably know that they will probably lose.

We see this tactic employed in other areas of public policy all the time. When openly lobbying for legislative change in Congress may be untenable, one group or another devotes its resources to passing state laws, which are certain to be challenged in court, where even losing can be useful. Either some judge in the process writes a compelling dissent, or merely racking up a scorecard of court losses can become a foundation for appealing to Congress to amend federal law. The strategy itself is not inherently sinister. It depends on one’s view of the end justifying the means.

Here, the end is to chip away at copyright rights with the same strategy employed by those who seek to limit other constitutional rights until, for instance, the exclusive rights in copyright law are little more than a bundle of compulsory licenses for all categories of works. And as Chris Castle describes in his post on this topic, who ultimately benefits the most from such a regime? Google and Friends. And the irony there, as I have also discussed before, is that the library associations are woefully shortsighted. Amend the copyright law as they seem to envision, and a host of commercial tech ventures will not just devour the economic value of authorship but will also set fire to libraries without lighting a match.

Photo by: nito

To Support Diversity, Independent Creators Should Not Give Up on Copyright

On Monday, the U.S. Chamber of Commerce’s Global Innovation and Policy Center (GPIC), in collaboration with Copyright Alliance, hosted a panel and roundtable discussion entitled A Conversation on Diversity and Inclusion in Copyright. The main topics discussed were the importance of fostering diversity among creators and creative works as well as a desire to see more diversity among the attorneys and other professionals specializing in copyright law and policy. In addition to the two panel discussions on those themes, video statements were submitted by creators working in music, film, and visual arts, and each described copyright protection as essential to their creative careers. (See participants list below.)

During the roundtable segment, I asked what might be improved about the copyright system to better support diversity in creative production. Rachel Kim of Copyright Alliance and Karyn A. Temple, former acting Register of Copyrights, now General Counsel at MPA, noted the goal to make registration easier at the Copyright Office because, of course, registration is necessary to fully enforce copyrights for U.S. authors. Temple added that the copyright small claims board, which will begin operating in the Spring of 2022, should help make copyright enforcement more accessible to a greater number of independent creators.

There is no question that, in addition to institutional changes within media companies or law firms etc., one of the best ways to foster diversity in creative careers is to inspire independent authors to participate in the copyright system in the first place. Because unfortunately, most do not.

A core principle of copyright law is that it is fundamentally egalitarian—a bundle of rights vested in any individual, from anywhere, who creates works of expression and makes those works available to the public. But the practical barriers to enforcing those rights, especially in contrast to the ease of infringement in the digital age, has been catalytic in discouraging entrepreneurial creators to the point of perhaps believing the narrative that “copyright is exclusively for big corporations.”

That theme, amplified by vocal copyright critics over the last twenty or so years, has played a role in discouraging the individual author about the value of his own rights. The message that the internet “bypasses the gatekeepers,” was, in addition to being overstated, implicitly coextensive to the assertion that the individual’s copyrights are meaningless in contrast to “new” modes of reaching audiences and generating revenue. That internet platforms enable marginalized voices, including artists, to be heard is absolutely true, but the idea that this social benefit demands the price of abandoning one’s copyrights was, and is, untenable.

Nevertheless, the digital native whose development as creator happened to coincide with the “copyright wars” beginning in the 1990s, often has conflicting views about her own rights, which have been described by various critics as greedy, rent-seeking, obsolete, anti-speech, a barrier to her fans, etc. Thus, in addition to the systemic hurdles in copyright law for indie creators, there exist internal obstacles for some, who have been made to feel uncomfortable about asserting their legal rights. Add the dimension of race and a history of exploitative IP grabs to the mix, and the belief that copyright is solely for the already privileged may be an even greater impediment for the author who happens to be a person of color. Consequently, demoralization of the people who should be advocating for their copyright rights produces an ideological vacuum, which the anti-copyright crowd has filled with its own agenda.

Perhaps because I could read the names or see the faces of everyone participating in the roundtable via Zoom, it occurred to me that although the moderators and guests are correct that all corners of the copyright world have work to do when it comes to diversity and inclusion, the anti-copyright segment strikes me as remarkably homogenous in this regard. And, of course, when we turn to the principal beneficiaries of the anti-copyright agenda (i.e. Silicon Valley), the white-male curve bends almost ninety degrees vertical.

It is common enough to observe that most, if not all, anti-copyright ideas are hatched in the comfortable aeries of academia, where the authors of many unfounded theories neither experience, nor even understand, the challenges faced by most creative professionals. So, whether it is fair to describe the class of copyright antagonists as too White, it is certainly fair to call it a pastime of privilege to invent and promote policies that, in one way or another, would divest the author of some amount of agency in her copyrights.

So, to answer my own question, if I could choose one goal for the moment, it would be to convince as many independent creators as possible that their copyrights are not worthless, even if advocacy of those rights may be entangled with myriad conflicting views. Yes, there are practical obstacles to meaningful enforcement, some of which may only be addressable by legislation; but even that will be more likely attainable if the millions of entrepreneurial creators in the country refuse to abdicate their rights in a war of attrition. Because giving up is what the anti-copyright interests are counting on copyright owners to do, and that is certainly no way to support diversity and inclusion in creative works.

Photo by: Igor2006

A Conversation on Diversity and Inclusion in Copyright

Welcome & Program Overview

Rick Wade, Senior VP, Strategic Alliances & Outreach, U.S. Chamber of Commerce

Terrica Carrington, VP, Legal Policy & Copyright Counsel, Copyright Alliance

Keynote Address

Representative Sharice Davids (D-KS)

Creator Video Appearance

Ebonie Smith, Music Producer, Audio Engineer at Atlantic Records; and Steering Committee Member of the Recording Academy’s Producers and Engineers Wing

Panel: Copyright Empowering Underrepresented Creators

  • Grace Wu, Executive VP, Entertainment Casting, NBCUniversal 
  • Moderated by: Rachel Kim, Copyright Counsel, Copyright Alliance

Creator Video Appearance

Yanique DaCosta, Graphic Designer and Fine Art Painter

Creator Video Appearance

Valerie Red-Horse Mohl, CEO/Founder of Red-Horse Native Productions

Panel: Careers in Copyright Empowering Underrepresented Communities  

Creator Video Appearance

Patrick “Guitar Boy” Hayes

Roundtable Discussion

Facilitated by Latricia Boone, VP, Equality of Opportunity Initiative, U.S. Chamber of Commerce

Closing Remarks

Mei-lan Stark, Executive VP & Chief Counsel, Intellectual Property, NBCUniversal