Tag: Public Knowledge

Public Knowledge Attack on CLASSICS Act Typically Unsound

In my last post on this subject, I asked why an organization like Public Knowledge would criticize the CLASSICS Act when there is no apparent downside for consumers if the bill becomes law. That post suggested PK’s motivation is more marketing for the service providers rather than advocating a public interest; but as promised, I will try to kick the tires on the specific law/policy claims being made against this bill.

To do this in a somewhat concise post, though, I have to concede that CLASSICS is a narrowly-tailored amendment to the copyright law, one designed to allow the majority of relevant (i.e. most likely to be played via commercial platforms) pre-1972 recording artists to participate in the current market. In practical terms, that’s what the act will achieve. In a more theoretical/historical context, CLASSICS is not a complete answer to the oddball history of U.S copyright vis-a-vis sound recordings since at least the 1920s.

So, it’s important to keep in mind that some of the criticisms of CLASSICS rely on more than hypothetical circumstances; they rely on alternate histories for the simple reason that the works we’re talking about have never been part of federal copyright protection. To make matters more complicated, the exclusive right addressed in the bill—public performance of sound recordings—was not part of the federal statute until 1995, and only then established for certain types of digital transmissions.

The CLASSICS Act seeks to harmonize some of the inconsistency in the law for the sole purpose of enabling certain, relatively contemporary, owners of sound recordings to share in the digital streaming market. For instance, it’s simply illogical that the author of a hit from 1970 is not entitled to the same royalties as the author of a hit from 1973. To achieve this goal, CLASSICS eliminates the 1972 threshold while leaving the existing terms and limitations intact. Nevertheless, as the bill moves to the Senate, critics are now responding as though it represents a substantial change that will exacerbate faults they already find lamentable in U.S. copyright law.

Doesn’t CLASSICS Extend Terms?

The claim most likely to get the attention of most people is that CLASSICS creates a major term extension for pre-1972 recordings. This usually comes with the eye-popping bullet point that works are being granted 144 years of protection! But the fact that one cannot extend terms which never existed is a point of more than semantic relevance. While it is true that 2067 minus 1923 does equal 144, Public Knowledge’s own post states that all pre-1972 sound recordings, currently under common law copyright, are already federally mandated to terminate on February 15, 2067.

That’s the same termination date called for in the CLASSICS Act. So, regardless of how one feels about copyright terms in general, this bill leaves the current terms in place for this particular class of sound recordings. At the same time, it is not at all clear that these sound recordings presently enjoy a public performance right under common law copyright (see Stephen Carlisle’s posts on the Flo & Eddie case in Florida as an example). As Terry Hart points out in yesterday’s post on Copyhype, “Say, for example, CLASSICS passes this year and goes into effect at the beginning of 2019, that gives pre-72 sound recording artists and owners an effective digital performance right ‘term’ of 48 years (2067-2019=48).”

It’s also worth noting that common law copyright is theoretically perpetual. But without wandering into the marshlands of potential litigation stemming from that legal bugaboo, suffice to say the CLASSICS Act should mollify critics because at least it establishes an expiration date for these works that is decidedly sooner than never.

Why Not Just Federalize All Pre-1972 Sound Recordings?

Public Knowledge’s argument that CLASSICS is “bad law” seems to rest substantially on the premise that it is inadequate in contrast to bringing all pre-72 sound recordings under federal law. This appears reasonable enough on the surface. All recordings “published” before 2/15/1972 would expire 95 years after their publication dates, and we would know what’s protected, what’s in the public domain, and where the expiration dates are, subject to the terms of the 1909 Copyright Act. This would certainly mean that a lot of sound recordings currently slated to fall into the public domain in 2067 would enter the public domain much sooner, BUT…

Although PK is correct that the Copyright Office in 2011 advocated a path to full federalization of pre-1972 sound recordings, that report also outlined the substantial legislative burden involved in migrating, for instance, state law determinations of ownership over to the federal system. Full federalization of these sound recordings is a monumental task that, at best, would be a very long slog in Congress, if it survived at all. While that played out, the copyright status of the sound recordings would not change—they would remain protected until 2067—and the pre-72 artists would continue to enrich the playlists of subscription services without reaping any of the benefits.

Not to be callous, but the process of legislating full federalization of these recordings could easily last longer than the remaining lifespans of many of the artists CLASSICS is designed to compensate. So, there’s a reasonable and moral argument to be made that effecting a narrow change now to support these artists in the current market is worthwhile. In this regard, it doesn’t seem at all reasonable for PK to label CLASSICS “bad law” (because it doesn’t harm anyone) simply because it happens to be a narrow law.

Does CLASSICS Create Uncertainty for Libraries & Archives?

Public Knowledge states …

“Libraries, archives, and researchers are the ones hit hardest by this situation. Initiatives like the Internet Archive’s Great 78 Project, or the Boston Public Library’s sound recording collections, operate under a legal sword of Damocles; they can keep going only at the mercy of common sense and a benevolent (or apathetic) recording industry.”

This statement is about the status quo and not about the CLASSICS Act. So, even to the extent the declaration is true—and that’s a big discussion—CLASSICS neither ameliorates nor aggravates any legal ambiguity for these institutions. Organizations like Public Knowledge and the EFF do this quite often: they attack a new proposal, which might entrench the status quo, by making it sound like a dramatic change backed by the nefarious “industry” in question. (See EFF on copyright in the TPP.)

One could predict that CLASSICS forecloses the possibility of full federalization of pre-72 sound recordings; but one could just as easily argue the opposite—that it may serve as a prelude to full federalization. In either case, the majority of commercially-viable sound recordings targeted for protection by this bill are—almost by definition—outside the sphere of interest where libraries and archives serve the public. Also, libraries and archives are afforded certain exceptions under copyright that are not available to for-profit entities. Both fair use and the carve-outs for libraries under Section 108 are explicitly stated in the CLASSICS Act.

Why Doesn’t CLASSICS Address Termination Rights?

Finally, Public Knowledge rallies general animosity for the recording industry in order to color its criticism that the CLASSICS Act is silent on the issue of termination rights. In simple terms, these are the conditions by which an author/artist terminates the transfer of copyrights to another party like a label or publisher. PK states the following:

“The sad reality is that the RIAA has exponentially more leverage with Congress than artists do, allowing them to dictate the terms of engagement. Legacy musicians thus face an impossible choice: abandon their push for termination rights in exchange for finally receiving the revenue they’re owed; or advocate for good policy at the expense of the potentially life-saving income.”

PK uses the subject of termination rights to emphasize the notoriously abusive contracts employed by record labels. But the fact is that sorting out the termination rights relative to all the pre-1972 state contracts would be just one component of the aforementioned slog to full federalization of these recordings. Public Knowledge makes this sound simpler than it is by alluding to copyrights reverting to the artist after 35 years, but this actually refers to the current statute, which does not govern these sound recordings. For now, the CLASSICS Act divides the royalties between the recording artist(s) and the sound recording owner, no matter what contracts are in place. So, PK’s implication that the bill is only for labels and not for artists is misleading at best.

Underlying all of that, of course, is the fact that Public Knowledge is exclusively hostile to copyright and has a history of making up all kinds of crazy nonsense rather than, say, providing knowledge to the public. In fact, I was struck by their reference to the wisdom of the Copyright Office on federalization of pre-72 sound recordings since is was Public Knowledge who had orchestrated a hatchet job attacking the credibility of the entire USCO and Register Pallante in the Fall of 2016. Ironically, that whole attack was predicated on accusations of “cultural capture,” which is funny because I wonder what psychological condition explains PK’s assault on this particular bit of legislation.

What does Public Knowledge have against the CLASSICS of music?

On April 25, a pretty extraordinary thing happened. Especially in a time of staggering political dysfunction, it was pretty impressive to see the House of Representatives pass an omnibus bill overhauling copyright law for music in the digital market with a vote of 415-0. Now headed to the Senate, the bill, known generally as the Music Modernization Act (MMA), combines three major pieces of legislation that have been in development for several years—the MMA, the CLASSICS Act, and the AMP Act.

In very simple terms, the legislation achieves the following results: 1) better and more accurate payments by digital service providers (e.g. Spotify) to songwriters (MMA); 2) federal protection for certain digital public performances of pre-1972 sound recordings (CLASSICS); and 3) compensation for engineers, mixers, or producers where they contribute to co-authorship of sound recordings (AMP). The entire package represents unprecedented examples of compromise between the digital service providers (DSPs) and the music industry; and in simple terms again, what the DSPs get out of the deal is an easier licensing regime and a new blanket liability protection that will put an end to the types of class-action lawsuits that Spotify faced for streaming unlicensed songs.

As the entire bill moves to the Senate, certain critics like Public Knowledge are now targeting the CLASSICS Act as “bad law,” recommending the Senate “consider” it separately from the rest of the omnibus bill passed by the House. Of course, if PK thinks CLASSICS is “bad law,” then I assume we can read “consider” to mean “kill,” which is certainly the assumption made by David Lowery in this post on The Trichordist. “Now it appears that through the use of proxies and two-faced lobbying DiMA [Digital Media Association] is trying to abrogate the entire compromise by stripping out the Pre-1972 and producer/mixer protections,” Lowery writes.

For an organization that claims to be a public advocate, Public Knowledge demonstrates remarkable consistency in advocating copyright policy most favorable to the business interests of internet service providers; and their objection to the CLASSICS Act is just the latest example. I’ll address a few specifics in a subsequent post, but the bottom line for the average consumer is this: having the digital service companies pay license fees to stream pre-1972 recordings will not in any way negatively affect the quality of our music-streaming experiences. I mean you don’t walk into a coffee bar with its comfy couches, free WiFi, and friendly service and say, “Wait a minute! They sell fair-trade coffee in this place?? I’m outta here.”

What the CLASSICS Act Addresses

Sound recordings were added as a category of works protected by federal copyright law on February 15, 1972. But for reasons nobody is quite sure about, recordings fixed prior to that date were exempted from the federal statute and left to the protection of common law copyright in each state. At the time, all copyrights and works were still subject to the 1909 Act until the new federal law, the 1976 Act, went into effect for works created after January 1, 1978. And although sound recordings were a protected category, the radio broadcasters successfully lobbied against licensing for “public performance” of sound recordings on the then not-unreasonable claim that radio broadcast played a substantial role in record sales.

Later, with advances in digital and subscription services, a 1995 amendment added copyright protection (§106(6) of the statute) for “public performance of sound recordings by means of digital transmission.” But this still did not apply to recordings made before February 15, 1972. Fast forward to the current market, when digital streaming now owns a huge portion of the “radio” market and obliterates the need for record sales for a growing number of consumers, and this leaves performance licensing as almost the only source of revenue for sound recordings. Meanwhile, more than a few great sound recordings were made before 1972 that consumers are going to stream millions of times. So, the CLASSICS Act creates a means by which the performing artists who made those recordings can share in the new market.

Why Does Public Knowledge Care?

If streaming services have to pay royalties for these sound recordings, that’s as it should be; and if it has no bearing on consumers (in fact, it is more likely to improve our listening experience), why is Public Knowledge even piping up on the issue? It’s tempting to say that organizations like this just plain hate copyright and will, therefore, assail any proposal that strengthens the position of any rights holder. Or one might conclude, as Lowery does, that PK is acting as an industry-funded proxy to save the streaming services money by trying to kill this bill in the Senate.

Still, PK and other critics have presented a few law & policy arguments, and I’ll look at those in my next post on this topic. As a prelude, let me say for now that pre-72 recordings is an oddball in copyright law, allowing critics to cite a lot of draconian-sounding theory, even fogging the discussion by alluding to Edison’s 1877 sound recordings as remaining in a theoretical state of perpetual copyright. In practical terms, the CLASSICS Act is simply about compensating the artists (most likely active from the 1950s-1970s) who made the sound recordings you and I listen to all the time. And in legal terms, the bill actually appears to solve some of the problems Public Knowledge cites in its objections. But that’s for the next post.

Public Knowledge Responds to Infringement Claim in Ajit Pai Video

Well, this is interesting.  Ordinarily, Public Knowledge is an organization that sows a lot of confusion—and sometimes outright falsehoods—about copyright law.  As a rule, I group them among the “digital rights” activists who tend to promote their opinion of what the fair use doctrine should be rather than a more realistic description of what it is.  So, it’s interesting that in response to allegations of copyright infringement against people they don’t like, the organization has produced a fairly sober and reasonable analysis of the fair use defense.  For the record, I’m no fan of the video in question either.

After FCC Chairman Ajit Pai reversed the 2015 Open Internet Order, a video featuring Pai, apparently produced  by the Daily Caller, went viral. It shows Pai demonstrating various things people will still be able to do after the hugely unpopular reversal of what is generally called “net neutrality.”  As readers know, I’ve tried to cut through some of the rhetoric on the neutrality issue without fully defending Pai, or certainly the telcos; but I also think the video was a pretty dumb PR move.  Its content may be factual, but its tone and style were begging for ridicule; its association with the odious Daily Caller makes it fatally dismissible; and its use of about ten seconds of the song “Harlem Shake” drew a DMCA takedown and threat of litigation by artist DJ Baauer.

Faced with the dichotomy of hating both Pai’s policy and copyright law, Public Knowledge uncharacteristically published a fairly rational explanation, written by Meredith Filak Rose, of the fair use doctrine along with an analysis of the use of “Harlem Shake” in this video.  Her assessment predicts that the video makes a fair use of the song, though not without sprinkling a bit of anti-copyright messaging along the way.

Rose does a good job of explaining the legal meaning of “parody,” which is one of the more widely misunderstood, colloquial terms invoked to assert a fair use.  I agree with her that the use of “Harlem Shake” in the video does not meet the standard of parody and am glad to see even an anti-copyright organization make an effort to clarify this point.  But from there, I think her fair use analysis is a bit all over the place, straining to make a case for the kind of use Pai and colleagues made, while clearly hating the video itself.

I’ll dispense with the fairly simple analysis under the second fair use factor, which generally considers whether the original work is expressive or factual in nature. Use of the former tends to weigh against a finding of fair use, while use of the latter tends to weigh toward a finding of fair use. Clearly “Harlem Shake” is expressive, and so Rose is correct to expect that this disfavors a finding of fair use under this prong of the four-factor test.

Under the first factor analysis, I agree with Rose that the use of “Harlem Shake”  is not parodic and that it is also non-commercial; but I disagree when she concludes that it is “at least mildly transformative,” thus favoring a finding of fair use. In fact, it is contradictory to conclude that the use of the song is not parody but is transformative. Because this still begs the question as to what has been transformed.

Originally, transformativeness described the creation of a truly new expression, which could not possibly exist without making use of the exact work in dispute. In the video, Pai concludes his list of “post neutrality” activities by saying “You can still do the ‘Harlem Shake’,” and then he dances to the track (and yeah, it’s cringy) with staff members of the Daily Caller.

This use is no more transformative than if the track were synched to the introduction of a promo video made by Pfizer. The use does not produce a new work that directly parodies, comments upon, criticizes, or builds upon the original song itself. In fact, in a subtle way, Pai is telling people, “Don’t worry, you can still randomly infringe various copyrighted works after I reverse the 2015 Order.”  (By the way, transformativeness is a principle that has indeed been applied rather schizophrenically in the courts, but it is organizations like Public Knowledge that continue to promote ever-broadening interpretations of the term.)

The intended communication in the Pai video could have been made by using any number of pop songs. The purpose of the video as a whole was not a work of commentary upon art and culture but was instead a work of PR with the intent to promote a position on public policy. In a fair use assessment, this use should be seen as equivalent to precedent examples in which a creative work is used for general comment or satire (i.e. to comment upon something external to the original work), which are not typically held to be fair uses.

In this context, Rose errs when she considers whether or not it was necessary to use “Harlem Shake” per se in this video.  First she improperly places the question under the third factor—the “amount and substantiality of the use”— rather than the first.  Because the need (or not) to use a specific work underlies the purpose and character of the use, the question belongs under the first factor analysis.  Next, Rose rather bollixes up the principle in her effort to defend “meme culture” by confusing creative necessity with the much broader notion of personal taste.  She writes…

“But judges can also ask whether you could have achieved the same purpose without using the work at all, or using another work. These are borderline existential questions when it comes to memes: did I have to use a copyrighted image of a screaming porg in my Twitter avatar to convey my distaste for the current political climate, or could I have used something else to equal effect?”

Despite the anti-copyright crowd’s love of memes, the test under fair use as to whether a specific work is necessary to create an expression is not so broad as considering the whimsical taste of the user to make some generalized statement.  Under fair use, the resulting new work should, in some way, be unimaginable without making use of the protected work in dispute.  For instance, the seminal case (1994) in which 2 Live Crew parodied the song “Oh, Pretty Woman,” was one in which the new expression relies substantially on a cultural familiarity with the sounds copied from the original. It is understood that the new work is, in part, spoofing the spirit of the original song.

Rose’s reference to her screaming porg avatar errs as an example because she is in no way commenting upon the original photograph.  She’s simply wearing it like a button on a lapel to express her personal state of mind about the current political climate. If she used the same image in a blog post about the political climate, the photographer could take action, and she would almost certainly lose in a fair use defense.

Finally, while Rose’s explanation of the fourth factor is correct, part of her application with regard to the Pai video is odd.  The fourth factor considers the effect of the use on the potential market for the original work.  I certainly agree with her that nobody would ever consider the Pai video to be a substitute for listening to “Harlem Shake,” and I also agree that Pai’s use under this factor favors a finding of fair use.  But then, Rose meanders into other legal territory—namely, moral rights—when she writes, “There is a tenuous (but extant) argument that Pai’s association with the song actually devalues the song.”

Regardless of one’s opinion about moral rights for artists—Rose calls it dangerous—this consideration is not generally applied in a fair use analysis.  In fact it is essential to note that fair use will protect commentary upon a work, even if the commentary itself may harm the market value of the original work.  Correctly applied, the fourth factor only considers whether the new use may act as a substitute for the existing or potential market of the protected work, including a market that the original author may choose to exploit at some point in the future.  So, whether one buys into the argument that Pai’s use of “Harlem Shake” could create a negative association with the song, this is not legitimately a question under the fourth fair use factor.

On instinct, my prediction would be that that the Pai video would fail on the first and second factor analyses, prevail on the fourth factor, and could go either way on the third factor.  Although the video makes very limited use of “Harlem Shake,” the third factor considers whether the portion used represents the “heart of the work.”  One could imagine DJ Baauer making a case that the campy communication intended can only have worked by making use of the “heart” of the song such that it would be instantly recognizable in context.  This would disfavor a finding of fair use, if the use also failed under the first factor analysis.

One way or another, I don’t doubt the infringement claim associated with this particular video caused a bit of dissonance over at Public Knowledge.  And they should be commended for at least trying to discuss fair use as a nuanced principle, rather than the natural right of all netizens.  That said, I think they missed a few key distinctions in an effort to make clear they still really don’t like copyright.