Tag: Featured

Georgia v. Public Resource: Much Ado About Very Little

I was on the fence with regard to commenting on Georgia v. Public Resource. Its details are arcane, rather dull, and, despite rising to the level of a Supreme Court decision, is generally inapplicable to copyright law. In essence, the Court succeeded in commenting on a matter of contract law because the upshot of this will be that States seeking to hold copyrights in the kind of works at issue in this case will simply amend their relationships with the private third parties that produce such works. I think my biggest resistance to this story was summarizing the facts because holy moly are they boring! So, here they are, cut and pasted from the SCOTUS Syllabus:

The Official Code of Georgia Annotated (OCGA) includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations. The annotations typically include summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials.  The annotations were produced by Matthew Bender & Co., Inc. a division of LexisNexis Group, pursuant to a work-for-hire agreement with the Code Revision Commission, a state entity composed mostly of legislators.  

Respondent Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government records, posted the OCGA online and distributed copies to various organizations and Georgia officials. The Commission sued for copyright infringement; PRO argued that the entire OCGA, including the annotations, fell in the public domain. The District Court held that the annotations were eligible for copyright protection. The Eleventh Circuit reversed.

So, to clear up one possible confusion about this case, what was NOT at issue, despite some murmuring you may get from the blogosphere, was any question that the law can be copyrighted. It cannot. That question was generally settled in the very first copyright case considered by the United States Supreme Court in 1834 known as Wheaton v. Peters. At issue here were those annotations, the descriptive summaries of either case law or statutes; and there is no controversy as to whether annotations in general can be the subject of copyright. They can. So, what was the big whoop in Georgia v. Public Resource?

The not-so-big whoop came down to the majority’s opinion, written by Justice Roberts, about the relationship between Georgia’s Code Revision Commission and the private party, Matthew Bender, hired to produce the annotations. “Under the agreement, Lexis drafts the annotations under the supervision of the Commission, which specifies what the annotations must include in exacting detail. The agreement also states that any copyright in the OCGA vests in the State of Georgia, acting through the Commission.”

What that boils down to is that because Lexis was contracted under a Work Made For Hire (WMFH) agreement, the Commission is the “author,” and is, therefore, barred by this decision from owning copyright on the grounds that the Commission is acting in its official capacity as an extension of the state legislature. At least that’s what the majority held, albeit after a longwinded tour through the nineteenth century meaning of “author” that I frankly cannot be bothered to summarize here because it hardly matters.

Suffice to say the Georgia decision changes nothing in the longstanding doctrine that works written by judges and legislators, as part of their official duties, may not be copyrighted. But if you read the mercifully crisp dissent written by Justice Ginsburg, joined by Justice Breyer, the distinctions she describes about annotations makes one thing abundantly clear—they are optional. “Annotations aid the legal researcher, and that aid is enhanced when annotations are printed beneath or alongside the relevant statutory text,” Justice Ginsburg writes. “But the placement of annotations in the OCGA does not alter their auxiliary, nonlegislative character.”

States have to make their statutes and court opinions freely available to the public, but they are not obligated to hire a company like Matthew Bender to create annotations that serve as a convenience to the reader. Somebody has to get paid to do the annotating work, and the State’s copyright in the OCGA was just one way to skin that particular cat.

One possible outcome of this decision could be that some states get out of the “official” annotation business, leaving a company like Lexis to still do the work but also own the copyrights. Or the states could simply restructure the way they work with third parties, like dropping the approval process and/or revising the contracts. Or they could just stop producing annotations altogether. So, all in all, much ado about nothing for the Supreme Court, but perhaps a nice respite from larger storms brewing.

Still, Mike Masnick at Techdirt seemed to feel there was a lot to say about this case, presumably because he does present it in his post as a matter in which the state was “locking up its laws under copyright.” That would be a big deal if it were true, but the error explains why Masnick characterizes Justice Ginsburg’s dissent as exemplary of what he calls her “copyright maximalism.” I still maintain, as I wrote years ago, that I have no idea what a copyright maximalist is, but if RBG is one, sign me up. Because just maybe there is a correlation between Justice Ginsburg’s notorious support for authors’ rights and her no-bullshit distillation of this nothing of a case.

Things Creators Can Learn From Seuss v. ComicMix

I listened yesterday morning to oral arguments presented (via video conference) on Monday before the Ninth Circuit Court of Appeals in the case Dr. Seuss Enterprises v. ComicMix LLC. As a quick recap, in 2016, Dr. Seuss Enterprises (DSE) filed a copyright claim against publisher ComicMix over a mash-up book called Oh, the Places You’ll Boldly Go!. The author/illustrator team who created the work used iconic illustrations from various titles in the Seuss portfolio, and combined the images with themes and characters from the Start Trek series. In 2019, a California District Court found that “Boldly” was fair use, applying first and fourth factor analyses that many creators found troubling. 

For deeper dives into the legal particulars, see my post from last August and/or posts here and here by Stephen Carlisle of NOVA Southeastern University. But suffice to say, I think most copyright watchers would agree that the appellate panel also found the District Court’s fair use analysis disconcerting and will at least remand, if it does not overturn the decision. Already quoted on social media by copyright advocates is this riposte by Judge M. Margaret McKeown:

“The district court seemed to take the position that if you take existing expression and then you interspersed it with new expression, you have a transformative work. That is a definition of transformative use that I haven’t seen before. It would seem to sting the notion of copyright protection, and almost everything would be a fair use.”

While it can be folly to read too much into judges’ comments at oral arguments, the panel did seem to express concern with three key points in this case:  1) that the lower court may have erred in finding “Boldly” a transformative work under the first fair use factor; 2) that the lower court applied the wrong analysis in considering the potential market harm to DSE under the fourth fair use factor; and 3) as a procedural matter intertwining the two factors, that even a correct finding of transformativeness does not shift the burden from the defendant to the plaintiff to disprove (or prove) potential market harm under the fourth factor. 

Now, I could break down what that all means, but would frankly rather wait until the court renders its decision, and, in the meantime, note that the complexity implied by these considerations leads to a different proposal I would make to most creators out there:  Don’t do this to yourselves. There are way better places you could go.

If you have talent and a desire to express something to the world—and you would rather spend your time creating works than fighting legal battles—the decisions made by “Boldly’s” authors in this instance provide a pretty good guide (Things 1-5, if you will) for avoiding legal complications, even if you want to parody classic material.  

Thing One – Learn What Parody Is

Thanks, in large part, to the volume of works used in funny YouTube videos and such, the word parody is too often invoked to describe every use of a work for the purpose of comic effect. This is an error, both as a literary and legal definition of parody. As discussed in more detail in this post in 2014, a true parody must comment on the original work being used. When ComicMix attorney Dan Booth was asked about this distinction on Monday, he averred that “Boldly” parodies the original work because Seuss’s character is “individualistic and narcissistic,” while Star Trek conveys themes of “teamwork” and “universalism.” 

While I am in no position to judge evidence I cannot fully review, that sounds like a very slippery (i.e. loose) grasp on any claim to parody. Merely using protected works in a new context does not favor a finding of fair use. If “Boldly” is indeed a parody, it should directly lampoon the values or ideas expressed in “Go” by mocking or critiquing Seuss’s original themes of individual empowerment through imagining possibilities. (And even then, we get into some murky waters with regard to copying visual works for the purpose of commenting on textual expression. But let’s not go there, boldly or otherwise, right now.)

I would further argue that the authors’ use of illustrations from multiple Seuss books militates against a finding that “Boldly” is directly commenting upon “Go.” In fact, one illustration from “Boldly,” shown on this ComicMix post from 2017, depicts two Spocks in the manner of Seuss’s The Zax, and the text actually reinforces a theme of individuality. So, maybe there is real parody in “Boldly” somewhere, but it doesn’t sound like there is.  

Thing Two – A Mashup is Not Automatically Fair Use

At oral argument, Booth described the mashup as an “innovative form that takes different sources and puts them in dialogue with one another.” Okay. But even if that were a universally applied description of the mashup aesthetic, it does nothing to place the form in any special category of consideration under a fair use analysis. 

As a general statement, one can assume that, for instance, two sources “in dialogue with one another” will create a third voice, and that this would be consistent with the purpose of fair use, but any given mashup will be subject to the same case-by-case analysis that will be applied to any other type of use. Moreover, because mashups generally involve works owned by more than one copyright owner, they can invite more than one legal complaint.

Thing Three – Apply an Inverse Rule When Creating Parody

One of the errors I find most troubling in this case, even to hear it presented, is the implication that ComicMix needed to create imitations of Seuss’s visual works in order to convey the parodic nature of “Boldly” (assuming parody is even present). This argument is anathema to what I would describe as an inverse proportion rule that says:  The more widely recognized the original work, the less the parodist needs to copy in order to express a commentary about the work.

Seuss’s illustrations are so iconic and so universally recognized that one need not copy every tittle and jot with the precision of a Talmudic scribe in order to lampoon the work—if indeed parody is the real goal. On the contrary, a true parodist would seek to mock an artist’s visual language by selecting certain characteristics to overstate or understate, rather than create a work that so slavishly mimics the original that an ordinary observer would fail to perceive that any visual parody exists at all.

This is one of the weakest aspects of ComicMix’s appeal to parody in my view—that an average consumer, seeing “Boldly” on a store shelf, might easily think that DSE had produced the mashup. Never mind the trademark implications, but a sendup of Dr. Seuss should be almost immediately recognizable as not Seuss and yet Seuss-like enough to know that a joke is being conveyed. We see examples of effective parody through limited copying all the time. Hence the general fair use guideline, to take only as much of the work as necessary is, in fact, easier to apply when parodying the most recognizable works.

Thing Four – Be More Creative

Let’s be honest. A great deal of the time, making substantial use of existing works—especially works as famous as the Geisel oeuvre—is motivated by marketing more than a burning need to express something new. Again, I won’t judge “Boldly” as a work without being able to read the whole thing—and its creators are experienced professionals—but Seuss is such an obvious source for this kind of appropriation that it is difficult to see such uses as more than gimmicks, seeking to profit off the notoriety of the original. 

My oldest kid and I used to riff on the idea of famous Nazis reading Seuss-like works to children, including the book Oh, Zee Places You Vill Invade (and let’s not get started on the Sneetches with the stars.) But if we had developed that inside joke into a book a la “Boldly,” would it imply transformativeness under a fair use analysis? 

The target of the mockery isn’t Seuss, it’s Nazis. Seuss is merely an obvious context in which to place Nazis for satirical effect, but that would not make this hypothetical use a fair use. More specifically, if we did produce such a book, would we need to slavishly copy Seuss’s illustrations to make the joke work? Nope. Readers would get it through the use of illustrations that evoke Seussness without copying Seuss. 

Thing 5 – Work Around Copyright

Finally, if the goal is to produce new creative works—rather than spend years in copyright disputes—it is worth remembering the many, many stories in which creators start out intending to use existing works and then, by navigating around copyrights, discover new and better ideas that would not have occurred otherwise. Happens all the time. 

I wrote about this process in 2013, and that post was later cited in a paper by scholar Joseph Fishman called Working Around Copyright, in which he describes, in legal-scholar terms, what millions of creators already know: that overcoming obstacles to initial creative instincts tends to produce better results. And when that first instinct is to copy protected works, there’s a good chance that the still-untapped idea is probably much better.  

Thanks Big Tech. But We’ll Still Need to Talk.

About ten minutes after the world went into self-quarantine, and we all instantaneously became more dependent on internet platforms, you could almost hear the keyboards clacking, as various pundits raced to announce that the techlash is officially over. And that it never should have happened.

For instance, Ryan Bourne of the libertarian CATO institute said as much. Writing on April 9 for The Telegraph, he declared, “In many ways, our current crisis is seeing the promise of Big Tech fulfilled. The value of greater online connectivity – tech ‘bringing us together’ – has never been clearer. HD quality video calls allow the elderly to continue to see grandchildren while in isolation.”

Cue montage for every anthemic Google TV spot we can expect to see in the near future. And to be fair, we cannot deny that internet platforms do provide resources and capabilities that, in an emergency like the present, go from being merely important to absolutely essential. We do not need to list the many ways in which digital technologies and internet platforms are sustaining many basic functions and some semblance of commerce at the moment. We’re all living those examples every day. 

In case you happen to be unfamiliar with the term techlash, it is shorthand for describing the general shift in attitude, beginning in early 2016, when the public, the media, and lawmakers all, rather suddenly, opened up to the idea of holding the major platforms responsible for some of the content they host and/or the data they abuse. This change in mood was of course sparked by revelations that Russian agents had meddled in the 2016 U.S. election, that troves of Facebook user data was used by political manipulator Cambridge Analytica, and that our social platforms were full to bustin’ with “alternative facts.” 

While many pundits, and the internet companies themselves, will continue to burnish Big Tech’s image against the contextual stone of COVID-19, there were some rather important policy discussions just beginning to take meaningful form when the microbes hit the fan.  And we should most certainly not, as Bourne proclaims, “… put the crude ‘reining in Big Tech’ agenda straight into the policy dustbin.” Granted, he is primarily responding to anti-trust action in the EU and murmurings of same in the U.S., arguing, “The benefits of winner-takes-most competition right now are clear.” And while the breaking-up Big Tech discussion deserves its own forum, there are other matters on the table.

As a general statement, Bourne’s conclusion is irrational, given the impetus for its writing. The more a private industry proves itself to be of vital public interest, the more it deserves fair but rigorous public scrutiny. It would be preposterous to decide, now that we’ve seen how much we rely on Big Tech, that these companies should be allowed to do whatever the hell they want. Though I get why a libertarian would say otherwise. 

Specifically, there was a very critical policy debate (long overdue) that was finally taking place, thanks in part to the so-called techlash. And if we were to take Bourne’s dustbin comment seriously, we would only succeed in sweeping whole dust bunnies of unresolved problems back under the rug. That conversation is whether all platforms should continue to enjoy absolute immunity from civil liability for harm caused by means of certain content they host and, quite often, monetize. 

Harassment victims, whose troubles are exacerbated by the liability shield, Section 230 of the Communications Decency Act, will still have a complaint or two when this crisis is over. Likewise, creators, whose music, photos, films, etc. are chronically pirated via platforms immunized by Section 512 of the Digital Millennium Copyright Act, are hardly finished having that conversation. After all, it only began in earnest on February 11, when the Senate Judiciary Committee held its first hearing in what was scheduled to be a yearlong review of the DMCA. 

When those hearings resume, I imagine we will see a lot of post-crisis inspired enthusiasm for Big Tech seep into testimony on the Hill and the talking points of Silicon Valley’s network of activist/PR agencies. It is easy to anticipate, for instance, declarations like, COVID-19 revealed just how essential internet access is for everyone, and, therefore, no provision should ever bar that access. 

In context to the DMCA, this would be a swipe at §512(i), which requires that a platform wishing to avail itself of the “safe harbor” provision, must implement an effective termination policy for repeat copyright infringers. COX Communications is now the poster child for what happens when an ISP implements a Potemkin termination policy, having lost a one-billion-dollar lawsuit in December 2019.  In its amicus brief on behalf of COX, the EFF cited access to education, employment, and government services as rationales; so it is a safe bet these same arguments, though unpersuasive to date, will be reinvigorated by the coronavirus experience.

Naturally, if the ISPs were persuasive that access is a human right, this could abrogate the “repeat infringer” provisions of Section 512. And while there is reason to be skeptical that the ISPs can successfully argue the “access as right” principle as a matter of law, the generalized “importance of the internet” trope has been used for years to militate against holistic enforcement of the statutes as they are written. (Also, I would not expect the access providers to take the human right principle so far as to offer free access to all during a crisis, though I would applaud them if they did.)   

As noted in my post about the second DMCA hearing, Professor Justin Hughes observed that §512(j), which provides for injunctive relief by means of site blocking, has hardly been implemented in the United States. And despite a preponderance of evidence that site-blocking has been effective in other jurisdictions in combating piracy without harm to speech rights, I imagine we can expect a litany of headlines and memes saying things like, Imagine your child can’t get her homework done during the next crisis. Tell Congress no site-blocking.

Of course the homework thing (and related examples) will have nothing to do with implementing §512(j), but trivial realities have never stopped the “digital-rights activists” from engaging in this kind of hyperbole before. Why would they restrain themselves in a climate of renewed ebullience for Big Tech that will probably follow the ebb of this pandemic? 

By all means, let us share a golf clap in recognition of the fact that, thanks to internet platforms and related technology companies, many of us can adapt to functioning at a distance in this strange and difficult moment in history. But let’s not trip over ourselves in fawning adulation. These encomiums to Big Tech are typically overbroad, presuming to conclude that the benefits of an industry obliterate the public interest in holding that same industry accountable for any potential harms. No corporate entity deserves that much free rein. Not ever. When this crisis subsides (and I hope it subsides), we will all need to heal in one way or another, and after thanking Big Tech for all it can do, and has done, we’ll still need to talk about a few things.

Photo by: Ansonlu