Tag: New Year

What I’ll Be Watching in 2023

T’is the week for year-in-review and/or looking-ahead articles. In that spirit, I recommend posts by Devlin Hartline, Hugh Stephens, and Aaron Moss. And here’s my list with commentary for your consideration:

AWF v. Goldsmith

Everyone in copyright world will be waiting, like Ralphie expecting his decoder ring, for the decision in this case. The highly anticipated question is whether the Supreme Court will provide clear guidance on the meaning of “transformativeness” in the factor one analysis of the fair use test. By invoking this highly subjective concept, follow-on creators have, at times, pushed lower court decisions toward problematic findings—first by finding “transformativeness” in secondary works that encroach on the derivative works right and/or classic instances where licensing is required; and second, compounding these errors by giving undue weight to factor one in the overall analysis.

AWF has argued that any “new meaning or message,” which may be subjectively interpreted by observing a follow-on work meets the definition of “transformative” and is, therefore, outcome determinative for finding fair use. Although, I have opined that this case poses certain difficulties in my view (i.e., that Warhol may have defenses under other principles), I agree that AWF’s argument presented here should be rejected and believe the Court should state that factor one must turn on whether the follow-on work contains at least some modicum of commentary on the original work. Absent such commentary, factor one should favor the copyright owner plaintiff. We shall see what the Court says in the coming weeks.

Hachette v. Internet Archive

Inasmuch as this is a very big case that could go all the way to the Supreme Court, it is almost impossible to fathom how Internet Archive is not destined to be rebuffed on the merits at every turn. What began as a lawsuit in response to IA’s unlicensed distribution of over one-million titles (using the fog of early COVID shutdowns as a rationale) is now a detailed complaint in which the facts imply more than just founder Brewster Kahle’s anti-copyright crusade.

In 2017, I asked whether the good aspects of IA require all the anti-copyright rhetoric in order to exist, and that was presuming Kahle’s well-known opposition to copyright was purely ideological. But some of the details in the publishers’ complaint imply financial interests that belie any pretense that IA is a principled, though misguided, Robin Hood. Expect to see the organization continue to allege that it is “just a library doing what libraries do,” but if this were true, the publishers’ suit would have been dismissed at the summary judgment stage. It should be clear by now that just because you say something on social media, that doesn’t make it true—least of all in a court of law.

The Copyright Claims Board (CCB)

Launched this past June, 2023 may be the year we really start to test the efficacy of the copyright small-claim alternative. For starters, the big question is how many respondents will opt-out of the tribunal. In order for the small-claim option to be constitutional, a defendant (respondent) must voluntarily agree to the proceeding, which led some to reasonably wonder whether the CCB will work at all if every defendant can simply opt out. But that question partly depends on how many plaintiffs are willing to file federal lawsuits, if the respondents are unwilling to resolve the matter at the CCB.

Further, to really understand how things are going at the CCB, we need a volume of cases and more time to allow the process to unfold. The plaintiff has 90 days once her case is active to show proof of service on the respondent, and the respondent has 60 days to opt out of the proceeding. Thus, with fewer than 300 cases filed between June and December this year, we simply do not have a lot of data yet. That said, Rachel Kim at Copyright Alliance posted a blog summarizing what we do know so far, and it’s worth a read.

Artificial Intelligence

I will not attempt to predict where this story goes in 2023, other than to expect that AI will continue to make headlines in the art world and beyond. As stated many times, I personally think AI generated “art” is a useless waste of computing power, but even if every artist and art consumer in the world agrees with that view, it seems unlikely that market failure of the companies behind generative AIs will predate one of these entities getting sued for copyright infringement. Perhaps not this coming year, but before long, expect to see litigation over the question of whether inputting large volumes of protected creative works into these databases amounts to mass copyright infringement or is exempted under the doctrine of fair use. And in anticipation of this battle, both sides of the argument may be scrutinizing the opinion(s) in AWF v. Goldsmith.

Gonzalez v. Google

Not a copyright case, but on the subject of platform accountability, the Supreme Court will finally have something to say about Section 230 of the Communications Decency Act. The decision likely won’t come until 2024, but we will soon see briefs filed on behalf of Google, and oral arguments will be heard in 2023. I recently posted about this case here and here, but suffice to say, it is hard to imagine that the majority will not generally agree that the statute neither states—nor ever intended to state—that online platforms are entitled to the kind of unconditional, broad shield against civil liability the lower courts have granted them for nearly 20 years.

Although 230 is not copyright law, it shares a kinship with the contemporaneous DMCA. Both laws were predicated on immunizing platforms from liability for material posted by users, and although neither law grants these immunities unconditionally, many online service providers—especially the big ones—have wielded these liability shields beyond the limits of reason or anything Congress intended in the late 1990s. Thus, if the Court reigns in the free-for-all applied to date under Section 230, it is conceivable that the opinion in Gonzalez will inform congressional review of the DMCA, which began in 2020.

That’s what I got for this December 30, 2022. See you in the new year!

Photo by: MediaFuzeBox

Are You Having a Public Domain Party This Year?

Should auld creative works be forgot,
And never brought to mind?

There may be any number of reasons to feel anxious about the coming year, but at least we can take comfort in the fact that the song “Yes! We Have No Bananas” will be entering the public domain.  Sure, this may seem like clinging to a bit of floating timber immediately after a shipwreck in the middle of the Pacific Ocean, but one must hold onto hope where one can and start paddling.

I wish I could remember the right comedian to credit, but whoever it was, he made a joke that resonates this particular New Year’s Eve in context to the “big” copyright news of the day.  He said, “We should legalize pot just so all the stoners will shut up about it.” In sympathy with this comic’s weariness at repetitive zeal for small matters, I too am excited about tomorrow’s milestone in copyright history when, for the first time, works protected under the terms of the Copyright Term Extension Act (CTEA) of 1998 will enter the public domain.*  

To be sure, I am not excited the way the folks are at the Internet Archive, who will be co-hosting an event called The Grand Reopening of the Public Domain, where attendees can join special guests like Lawrence Lessig and Cory Doctorow to raise a glass and toast the arrival of works published in 1923 as though they have been missing for years. No. I’m excited about this particular copyright threshold because it just might be the day when the ebullient crusaders of the public domain will finally shut up about it. I mean I know they won’t, but one can dream. It is the New Year after all.

You see, for a very long time, many copyright critics have been insisting—in academic papers, in blogs, in tweets, etc.—that the production of new creative works depends on a “rich public domain,” and, therefore, the 1998 term extension has been depleting the common creative wellspring like a badly managed natural resource. Of course, this is the talking point when the subject is copyright’s term of protection; when the subject is enforcement against mass, online infringement, the response from many of the same people is that we are “enjoying more creative works than ever before.” This cognitive dissonance is never acknowledged.

The belief that 2019 marks anything other than a symbolic milestone for copyright critics to share a group high-five is based on the parlor trick that it is always easy to make predictions which nobody can effectively disprove. I have little doubt that, in years to come, someone somewhere will do something interesting with works from 1923, 24, 25, and so on, as works published in these years fall into the public domain; but at the same time, I also predict that there will be little measurable difference in overall creative output as a direct result of this much-celebrated threshold in copyright history.

I recognize that this prediction begs the question as to how one measures “creative output,” and that it wants classifications like professional vs. amateur, niche vs. popular, indie vs. industrial, etc. But by any metrics we might use, my skepticism is grounded in four simple, observable facts: 

  1. works protected by copyright are not inaccessible for consumers or new creators;
  2. most creators “build upon” existing works in ways that do not implicate copyright infringement in the first place;
  3. creative works have been produced for centuries, so the entire public domain universe is already much larger than the universe of works under copyright;
  4. with regard to general access, online piracy has forced so many works into an effective “public domain,” that it is absurd to argue that the copyright expiration on works published in 1923 represents significant, new opportunities of any real consequence.

None of what I say is meant to diminish the value of the public domain or to advocate perpetual copyright. But I do want to temper the excitement of the moment, which seems to imply that new possibilities for enlightenment and creativity are about to be unshackled from the bonds of darkness, ignorance, and greed. According to Wikipedia, the 1923 retail price for Agatha Christie’s Murder on the Links was $1.75 ($25.70 in 2018); and today, the Kindle versions of Christie novels average between $2-3, while libraries still provide books for free. So, copyright is doing what exactly to general access to these works?

Also, I see that the first of Charlie Chaplin’s feature films, A Woman of Paris, will fall into the public domain tomorrow. This brings to mind the day a few years ago when my teenager went to some school event dressed as Chaplin’s Little Tramp, and all her peers asked who she was supposed to be.  Assuming my kids’ school is a fair representative of “average” in America, it would appear that Chaplin’s Tramp, once the most recognized character in the world, may be lost to oblivion among contemporary adolescents.  

Assuming this is true, it cannot be explained by copyright terms. After all, every one of Chaplin’s shorter films, including his six-reeler The Kid, is in the public domain.  And doubtless many of these films are online, uploaded to YouTube and elsewhere. So what accounts for this gap in cultural literacy among my kids’ contemporaries? Several factors, I’m sure, not least of which is that they are consuming very different forms of culture (e.g., YouTubers sharing personal experiences) that are as alien to me as Chaplin is to them.  

Whether we can judge our kids’ cultural experiences to be qualitatively better or worse than our own experiences at the same age, I’ll bet anything that copyright terms will be a non-factor in any comparative analysis one might attempt. What we can know for sure is that the next generation of adults has more on-demand access to more content—through both legal and illegal channels—than any generation in the history of people; and yet, it is not entirely clear that they “know more” than their parents and grandparents.

Relatedly, I saw a classic example over the holiday of a case for perpetual copyright (at least rhetorically) in the form of a TV film adaptation of Oscar Wilde’s The Canterville Ghost.  It was a production so devoid of several major themes, or humor, present in the original story that Wilde himself would be forgiven for haunting the producers, to say nothing of legally stopping the project from being made. So, works falling into the public domain do not exclusively result in uses of great value. Had the same producers been required, by license, to be more respectful of the original work in the teleplay, the market value would be roughly the same, but the end product would likely be better.  

I acknowledge that everything I say here would still hold true if copyright terms were, say, twenty years shorter than they are today. I also believe that repositories like online archives are extraordinarily useful and understand why an archivist would want to make as many works available as soon as possible. But the general conclusion that “copyright terms are too long” is largely tautological, and individuals like Brewster Kahle of the Internet Archive are too eager to misrepresent copyright history and to attack the interests of living, working creators.    

The general message boils down to copyright terms are too long because they seem too long, even though nobody has yet demonstrated with any substantive data that the term of protection is having a negative effect on copyright’s original purpose to promote progress. Meanwhile, as explained many times, the CTEA was not some capricious, arbitrary term extension, but was effected in order to establish parity with trade partners in the EU and elsewhere so that American authors had the same benefits as their foreign counterparts.  

So, in response to all the hype about what will enter the public domain tomorrow, next year, and the years to follow, I believe this moment is a lot of ephemeral noise (i.e. an excuse for a party) that has scant relevance to the reasons why liberal democracies demand a rich, diverse anthology of informative and creative works in the first place. After all, one need only glance at the apparent success of toxic and fake content online to conclude that it takes much more than flooding the public domain with old works to foster enlightenment. And in that regard, the start of this post was unfair to the “stoners” because the arguments for legalizing marijuana actually had data behind them.

Wishing everyone—even the copyright critics out there—a happy and safe New Year. 

*  The CTEA established the current terms of copyright protection:  life-of-the-author, plus 70 years; or the shorter of 95 years from date of publication or 120 years from date of creation for works-made-for-hire. See statute.