Tag: Fight for the Future

An Open Letter from a Copyright Nerd to About 300 Authors

Dear Authors (“the undersigned”):

It’s not your fault. You mean well. But you are simply wrong to have signed that letter—the one written and orchestrated by Fight for the Future (FFTF), which misrepresents the case Hachette et al., v Internet Archive as an attack on libraries. If I were not a copyright nerd, and I were told that this lawsuit seeks to undermine “traditional library rights,” I probably would have signed that letter, if asked. But the parties calling this a case about library survival are exploiting your good nature and the likelihood that you do not know much about this case. In fact, Authors Guild, in its response this morning states:

“In speaking with authors who signed this letter because they support public libraries, as we do we [sic], they feel misled about the purpose of this letter. For instance, Daniel Handler (Lemony Snicket) disavows the letter and supports the lawsuit.”

The reason I advocate copyright rights is simple enough. I love the arts and firmly believe that a democracy without empowered authors and artists is doomed to become something other than a democracy. As I have been a copyright advocate (and nerd) for just over a decade, I don’t think it would be arrogance at this point to say that I am one of a handful of non-attorney experts on the subject. Not only does my experience encompass a solid knowledge of statutory law, case law, and the history of core doctrines, but it includes many encounters with the tactics of those organizations and individuals who want to strip authors of their copyright rights while disguising that agenda in the rhetoric of democracy, liberty, and defense of the underdog. Internet Archive and Fight for the Future are two organizations baptized in that ideology, and its leaders and comms teams do not scruple to employ tactics indistinguishable from other bullies and liars.

For instance, are you “the undersigned” aware that FFTF engaged in author-shaming on social media? They tagged writers and asked them baseless, rhetorical questions about “helping to sue IA” and whether they really want to keep their books away from “families who can’t afford them.” Surely, you are all keen enough observers of human nature to know that merely tagging authors with such false implications is enough to foster threats—at least one author has received death threats—against some of them. I fail to see how such tactics by FFTF are any more ethical than the kind of ratfucking employed by Trump’s cult to intimidate poll workers, et al. But this is a travesty of the digital age—it is just so damn easy to lie about basic facts in an effort to win an argument in the court of public opinion that one is likely to lose in a court of law.

We have all watched as allegations about “stolen elections” and other staggering bullshit move frictionless at lightspeed through the Twitterverse. But we also breathe a little sigh of relief to see that at least in court, facts must be presented and weighed. And there is a reason why the facts presented in the case against Internet Archive have no resemblance to the allegations made in that letter you signed.

Although Internet Archive has provided us with some wonderful services—I have used its legal archive for research many times—the factual basis for the publishers’ lawsuit is that IA also operates a book scanning and distribution enterprise in a manner that is not allowed by copyright law and which looks nothing like the operation of your library or mine. The specific conduct that predicated the suit was IA’s so-called “National Emergency Library” in March 2020. Citing COVID shutdowns as an excuse, Internet Archive digitally distributed approximately 1.4 million in-copyright books without restriction of any kind—let alone any logic to the titles released, given its stated intent to “help students.”

So, in the simplest terms, no. This is not what libraries do. Real libraries operate within the boundaries of copyright law, which includes several statutory carve-outs written exclusively for those institutions. By contrast, IA asserts theories that are a) unfounded in law; and 2) have been described by Kahle and others as a prelude to changing copyright law in ways that would weaken authors’ rights–and even harm libraries. They have stated, for example, that they see this fight with the publishers as a step toward amending Section 109 of the Copyright Act (first sale doctrine), which is so shortsighted that it would actually dilute the value of real libraries over time. Those of us familiar with Kahle’s agenda recognized the “National Emergency Library” as a stunt—one which may have been intended to provoke the lawsuit now at hand.

It is Mr. Kahle’s consistently stated assertion that copyright rights are little more than a barrier standing between you and your readers. He and his ideological siblings at FFTF, EFF, et al. sincerely and consistently argue that your legal authority to negotiate terms for your labor and talent stands in the way of the public’s access to information and culture. And in the most basic terms, the implications of IA’s conduct—if the publishers were to let it go, or if the court allowed it—would be to substantially undermine the foundation of the only labor right you have as an author. If you believe Mr. Kahle is correct—that the world would work better without those rights—then your signature belongs on that letter. But speaking as a copyright nerd, I assure you that history rejects this view.

During most of the nineteenth century, American publishers hardly invested in American authors for one simple reason:  because the absence of international copyright treaties meant that it was cheaper to reproduce unlicensed copies of European books than it was to publish, and therefore pay, an American author. This is why Walt Whitman advocated for the formal recognition of international copyrights throughout his career, barely living long enough to see the first such American law pass in 1891. Ideologues like Mr. Kahle and his friends talk about a future in which all creative works are unfettered by copyright, but what they don’t mention (or perhaps don’t know) is that we’ve been there, done that. And it sucked.

Another observation I hope I can offer without conceit or offense is that after ten years, I would say that not even the most rights-sensitive authors tend to know a great deal about the particulars of copyright law. And why would you? It’s tedious arcana for attorneys and agents. But this is also why it is dismaying to see names like Neil Gaiman among “the undersigned” while his books and characters are so prominently adapted into motion picture projects and merchandise worth millions.

Because I want to ask whether you are aware, Neil, that the only reason you must be consulted or compensated for those adaptations in the U.S. is Section 106(2) of the Copyright Act? Or that this “right to prepare derivative works” has its origins in a 1907 lawsuit involving the first film adaptation of Ben Hur? Or that the authors’ right to be paid a higher percentage on sales of ebooks than physical books is predicated on this same part of the statute?

So, what I’m saying is that copyright is complicated; you “the undersigned” all benefit from it; authors less prominent than you really depend on it; and you just endorsed the people whose stated agenda is to trash it in ways you probably don’t understand. This is so not about libraries.

Fight for the Future Doesn’t Speak for Artists (or anyone else)

Fight for the Future recently launched a new campaign website called End Creative Monopolies, and among its many vague declarations, the petition asks signatories to “demand the dissolution of the current US copyright system and a fundamental reimagining of artists’ rights and protections for the 21st century that shifts power away from creative monopolies and puts the interests of artists and the public first.”

This is a common, if irrational, refrain. The underlying syllogism declares that corporate media producers and/or legacy copyright owners are wealthy and powerful (generally true). It then claims that independent creators are struggling and powerless (also frequently true). But the conclusion that the copyright system only serves the former at the expense of the latter does not follow as a generalization at all. The story about copyright and independents is a complex conversation about specific aspects of the law—judicial, statutory, and administrative—which FFTF is neither qualified nor willing to have in any way helpful to creators.

Meanwhile, you know who actually does care about helping indie artists make the most of the copyright system? Copyright advocates.

The people who are experts in the law and also believe in maintaining its fundamental principles are consistently talking about how to make the system work better for small creators. In fact, I don’t know a single pro-copyright authority (and I know quite a few) who does not think the system could use some tinkering in a few places to better serve individual authors. But tinkering. Not dissolution of the whole system and starting with a blank slate as FFTF decrees in its new campaign. Here are just a few recent examples off the top of my head:

Terrica Carrington, VP Legal Policy and Copyright Counsel at Copyright Alliance, recently blogged about the intersection of copyright and cultural misappropriation of choreography, explaining what the #blacktiktokstrike is all about. “Cultural misappropriation is an ethical concern that is not always rooted in the law,” writes Carrington, “but in some instances, these ethical concerns overlap with the law in such a way that makes the offense not only morally wrong, but illegal. That is the situation Black creators on TikTok are being confronted with: misappropriation of culturally relevant dances that may also be copyright infringement.”

The American Music Fairness Act is backed by copyright advocates great and small because this legislation finally proposes to overturn the status quo whereby U.S. terrestrial radio broadcasters have been exempted from royalty payments to musical artists. This law directly mandates that a very big industry finally pay fair rates to individual creators, which is just one reason my friend Blake Morgan (an archetypal indie artist) was standing on Capitol Hill the day lawmakers announced the bill this past June 24th. Did FFTF back this bill? Nah.

Steven Tepp, copyright consultant and former senior counsel at the Copyright Office, recently spoke with me on the IOM podcast about some of the formalities in copyright registration and enforcement that, with even modest changes, could make copyright work better for the independent author. For example, Tepp specifically recommends making the designation “published” optional on registration applications because the uncertainty in the law as to the meaning of “published” puts small creators at a disadvantage when it comes to enforcing their rights. I know that’s wonky and arcane, but that’s what actual, sober policy reform looks like.

Prof. Lateef Mtima, founder and director of the Institute for Intellectual Property and Social Justice, spoke extensively on the IOM podcast about how essential it is to not throw out the IP baby with the bathwater. “One of the problems with some of those perspectives,” Mtima said, “is that it basically accepts a premise that the system can only be utilized for social evil and corporate benefit. As I said in the beginning [of the podcast], I fundamentally don’t think that way, but as a practical matter, that’s not particularly helpful.”

Copyright Alliance, whose key members include several of the big media companies FFTF is complaining about, has filed pro-copyright amicus briefs in cases that have major implications for small creators. Allen v. Cooper, Unicolors v. H&M, Canada Hockey LLC v. Texas A&M University, Brammer v. ViolentHues Productions, Fourth Estate v. Wall-Street.com, VHT v. Zillow, to name a few.

Oh, and what was that law that passed at the end of 2020 that FFTF and its sister organizations tried so hard to kill? The Copyright Alternative in Small-Claim Enforcement (CASE) Act? Arguably, this is the most significant amendment to U.S. copyright law ever written with the sole purpose of helping independent creators, and FFTF, EFF, PublicKnowledge, et al opposed it. And worse, they lied about CASE being a big media bill, which is absurd on its face because big media doesn’t need a small claim option.

Specifically, on the subject of music, the good folks at FFTF should be ashamed of themselves for citing Spotify as a predator that pays songwriters pennies. I mean Spotify is a predator that pays songwriters pennies, but where was FFTF when the songwriters started mentioning this problem about ten minutes after the platform launched in 2011?* I know! They were being founded. Coincidentally at the very same time the Internet Association was established, the anti-piracy bills SOPA/PIPA were being hammered by Silicon Valley, and Google increased its lobbying expenditures from negligible to the top five. One might almost get the idea that FFTF was forged in a crucible of tech money for the purpose of weakening copyright law.

With Friends Like FFTF?

Independent artists already know the difficulties when it comes to protecting their work and enforcing their rights. I interact with some of these creators almost every day. And not once have I seen a writer, musician, photographer, etc. say, “Wow, I’m struggling because Disney is too big.” Why they usually say is, “Some clown just posted my work on his website or used it in his commercial or in a YouTube video, etc. without permission.” Or quite commonly, “A foreign counterfeiter is selling my stuff on Amazon or eBay.” These are the kind of problems copyright advocates discuss all the time.

Policy changes are hard. Look how long it takes to get infrastructure legislation passed when everybody mostly agrees! Fight for the Future has a lot of nerve declaring that a system as complex as copyright law is “broken” just because they say it is and then presuming to declare that we must scrap it and “reimagine” the whole thing for the 21st century. What this really means is that they want to reimagine some of your money into their donation coffers while they spin tales about agendas they are never going to achieve. And neither should they.

*Not surprisingly, yesterday’s Bloomberg Law story about renegotiating streaming royalties never mentions Fight for the Future. Just the usual pro-copyright advocates and experts navigating this difficult path between tech giants and the copyright law.

Fight for the Future Naive About King “Dream” Speech

FFTF Dream Screen Shot

I have a dream that one day my children will be judged not by the content of their character, but by the content they can steal.  

So, my friend David Lowery, on his blog The Trichordist, has been taking the organization Fight for the Future to task lately, and he most recently caught the organization in a lie related to DMCA  takedown and their defiant upload of Martin Luther King’s “I Have a Dream” speech to YouTube. Back in 2013, to celebrate the  first anniversary of the defeat of SOPA, FFTF posted the “Dream” speech to YouTube in direct violation of the King estate’s copyright in the work; and the group told people to share the clip in what they called a “small act of civil disobedience.”  Small indeed. It’s bad enough to conflate the whinging, privileged, and corporate-backed “fight” against SOPA with the deadly labors of Dr. King, but there’s something even more insidiously galling about this whole MLK/copyright conflict that Fight for the Future and their ilk really don’t understand.  And maybe it’s because they grew up in a world of sound bites.

Since roughly five minutes after the Constitution was ratified, this country has been trying to live up to its own ideals, and getting there—and we’re not there—has taken decades and cost many brave people their lives.  In that speech on the steps of the Lincoln Memorial, King is demanding that America be true to its principles when he invokes the Declaration’s all men are created equal.  Those words are Jefferson’s preface to citing the natural rights of Man, which Jefferson cribbed from John Locke, whence comes the idea that the fruits of one’s labor are a civil right.  King’s enormous contribution is a part of that continuum—a history of struggle for the value of the individual voice to vote to speak to protest and to enjoy the fruits of his or her labor on equal footing with all other citizens.  And that last principle is why the intellectual property clause exists in the Constitution in the first place.

Yes, Dr. King is a big part of America’s struggle toward its best intentions, but it isn’t just a story about prejudice against race or sex or identity; it’s a story about the value of the individual and his or her right to pursue happiness.  Hence labor rights are invariably a central component of every civil rights battle ever fought—from literal slavery to the workers’ rights of the early 20th century to ongoing demands for equal work opportunities for women.  When Martin Luther King was murdered in Memphis on April 4, 1968, he was there to protest the exploitation of city garbage workers.  Even the “Dream” speech itself was part of a march called “The March on Washington for Jobs and Freedom.”  The value of the individual’s labor is a cornerstone of civil rights; and what these featherweight activists at Fight for the Future completely fail to realize is that intellectual property rights are a significant expression—in fact the first legal expression in this country—of that fundamental principle.

Meanwhile, the free speech we enjoy—the free speech groups like FFTF believe is threatened by the King family’s copyrights—owes a great deal to the courage of King and his followers.  In the 1964 case of New York Times Co. v Sullivan, Alabama courts upheld a libel claim against the Times for publishing an ad called Heed Their Rising Voices in support of the King-led marches in the South.  The city commissioner of Montogomery L.B. Sullivan sued over the negative portrayal of his police department, and had the US Supreme Court not overturned key precedents in the lower court rulings, then the power of newspapers and public advocates to criticize elected officials and government agencies would likely have been diluted for many years to follow.  So, even with regard to free speech itself, all this digital-age dithering over a work that is widely and affordably available is a little pathetic in context to the history in which these people are dabbling.  (Coincidentally, I watched the “I Have a Dream Speech” last night, for the zillionth time in my life, as part of Episode 5 of the CNN-produced series The Sixties, now streaming on Netflix).

So, yeah, we can debate the practical application of copyright, discuss whether or not a particular work should remain protected and for how long.  But when a bunch of privileged, 21st-century kids (backed by very wealthy corporations, I might add) declare, from the comfort of their keyboards, that the emancipation of Dr. King’s speech from the “chains of copyright” is somehow a fight for civil rights, I propse that FFTF should change its acronym to STFU.  This is especially true when their idea of a “moral responsibility to disobey unjust laws” means in this case to serve King up to corporate masters so his legacy can rightly become their property to monetize rather than his family’s.

My generation grew up with Dr. King’s words as part of our consciousness, miraculously without the aid of YouTube or the internet.  In fact, it’s noteworthy that the limited scope of access in the 1960s probably played a significant role in accelerating the progress of particularly the Voting Rights Act.  Because the first wave of Selma marchers had the unbelievable guts to walk unarmed into a mob of cops and goons brandishing knightsticks, pipes, and barbed-wire-wrapped clubs, and because the enitre nation was limited to just a few TV networks, it meant that tens of millions of citizens simultaneously watched—in a sense were forced to watch—the sight of innocent people being mauled. So, our new world of abundance isn’t always the potent, connective tissue we think it is.

Probably the most telling irony in this story is that by spending so much energy and corporate money fussing about the copyright on Dr. King’s “I Have a Dream” speech, the folks at Fight for the Future demonstrate that they don’t really seem to understand the speech at all.  They demand access on principle but learn nothing about the work itself.  And if that isn’t the lie of the digital utopia writ large, I don’t know what is.