Tag: TVEyes

Fair Use Week Again. But Why?

Well, it’s Fair Use Week again.  Seventh annual.  I suppose one must say something.  Though what I really want to say is Why?  What exactly happened in 2013 to provoke the idea that we needed this celebration?  The fair use doctrine had been part of the federal copyright law for forty years, and its common law precedents began percolating in the mid to late eighteenth century.  So, why did this somewhat arcane aspect of copyright doctrine, which very few people have reason to think about, suddenly demand of a week’s worth of attention?

I get why Banned Books Week is a thing.  It reiterates the need for vigilance against censorship while celebrating authors whose contributions are so transformative or provocative that somebody somewhere wants to silence them.  Notably, it is the free market that so effectively rejects this kind of censorship, and the author’s mechanism of access to that free market is copyright.  “The Framers intended copyright to be the engine of free expression,” wrote Justice O’Connor in 1985 in Harper & Row Publishers Inc. v. Nation Enterprises.  And indeed it is.

While no one should disagree that the fair use doctrine is necessary to the fulfillment of copyright’s purpose to promote progress and be that engine of free expression, I just cannot fathom the connotation of insurgency expressed in the observance of Fair Use Week—as though the principle were under assault.  Of course, eager celebrants might say that fair use is under assault based on a common tactic in politics, which is to first advocate pushing the limits of a principle and then claim that any resistance to, or criticism of, said pushing is tantamount to threatening the principle itself.  

You see, concurrent with the sudden urgency to celebrate fair use, there has also been a considerable effort to broaden the nature of the doctrine far beyond its supporting role as a cog (albeit a large cog) in the engine of expression.  Publicly, this has taken the form of blog posts and social media commentary that invoke fair use, whether it is actually applicable or not.  In the courts, organizations like the Electronic Frontier Foundation, the Computer and Communications Industry Association, and the American Library Association write amicus briefs supporting tech ventures whose fair use defenses overreach so broadly that they would nullify core copyright protections if allowed to stand as precedent.  

Fortunately, as some of the more high-profile cases have moved through the process, the courts have lately reaffirmed fair use, tucking it into its proper context—as a conditional defense for certain types of uses and not a vaguely-defined blank check based on emotion and general disdain for copyright.  Probably the two most important recent decisions in this regard were in Fox v. TV Eyes and Capitol Records v. ReDigi at the Second Circuit Court of Appeals.  In both of these cases, the court re-illustrated essential contours of fair use in a tech-driven market that too-often seeks to conflate generalized “innovation” with the first fair use factor that weighs “transformativeness.”  

As explained in detail in older posts, “transformativeness” (an analytical doctrine written by Judge Pierre Leval in 1990) is not terribly confusing in its original purpose to consider a new creative expression that makes some use of a precedent creative expression.  Where the doctrine threatens to get out of the barn, however, is in its secondary application as applied in Google Books … “a secondary use may be transformative if it provides information about the original, ‘or expands its utility.’”  

That “expands utility” language has provided opportunity for business ventures to come very close to arguing that simply offering a new service is sufficient to warrant fair use of protected works.  This rationale has even fostered minor attempts by some parties to claim that merely posting a work on social media is “transformative,” which, if this were true, would annihilate the authors’ right to make a work available (or not), thereby distorting fair use from a limited, legal exception to a talismanic incantation.  

Second Circuit Restores Reason to Fair Use 

In both TVEyes and ReDigi, the Second Circuit provided essential contours for the “transformativeness” doctrine.  In the former, the Court held that the TV monitoring service, regardless of its innovative value to B2B subscribers, infringed copyright by making full programming available to customers.  In comparing the utility of TVEyes to that of Google Books, this same court, which decided the latter, stated …

This appeal shares feature with our decision in Authors Guild v. Google,Inc.  That case held that Google’s creation of a text-searchable database of millions of books (including books under copyright) was a fair use because Google’s service was “transformative” and because integral features protected the rights of copyright holders.  However, we cautioned that case ‘test[ded] the boundaries of fair use.’  We conclude that defendant TVEyes has exceed those bounds.

That the same court found daylight between the fair use defenses of Google Books and TVEyes is of considerable value to rightholders in a market replete with ventures seeking new ways to exploit copyrighted works without license.  Authors of works have a hard enough time navigating a landscape of legal (Spotify) and semi-legal (YouTube) platforms that have decimated the monetary value of their creative products without also having fair use expanded into a generalized, amorphous license to steal.  

Perhaps future legal experts will find that the most important decision came in the ReDigi case, denying the fair use defense of this business, which sought to create and exploit a market for “used” digital music files.  One reason this decision my be seen as a landmark is that Judge Leval himself wrote the opinion and added further nuance to his own “transformative” doctrine, which has been the cause of considerable confusion in other cases.  Leval writes …

Here, ReDigi hosts a remunerative marketplace that enables resale by purchasers of digital music files, which is a commercial purpose. Especially in view of the total absence (or at least very low degree) of transformative purpose, the commercial motivation here argues against ReDigi with respect to Factor One.

In other words just because ReDigi’s business model would indeed be novel, that doesn’t make it “transformative” in regard to fair use.  The business model offered a substitute for the primary market for creative works, which would threaten the (already low) market value of those works.  (And as mentioned before, the dominance of music streaming implies ReDigi’s obsolescence rather than its novelty.)  

These two decisions in one of the most active copyright circuits provide essential guidance for the kind of fair use defenses that are typical of the digital market.  Hence the appearance of Fair Use Week six years ago is suspiciously contemporary with efforts to expand that secondary application of “transformativeness” in the service of big tech ventures, rather than the production of new forms of expression.

In this regard, I cannot agree with the way in which Peter Jaszi framed his testimony before Congress in 2014, in which he said …

“Fair use, one might say, is like a muscle – it will grow in strength if it is exercised, and atrophy if it is not. But, by the same token, fair use is hardly unusual or exotic today. Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not.”

This conflating the original purpose of fair use (i.e. to foster new expression) with the so-called “innovation economy” is emblematic of the persistent confusion in the market today—a chronic inability to distinguish between the creators and the platforms on which they operate—the difference between the YouTuber and YouTube, if you will.  

Internet companies have consistently sought to exploit confusion about fair use.  Just as they conflate our free speech rights with their profit interest in letting all content “flow freely,” they promote that same talismanic notion of fair use in their own pecuniary interest.  And that’s probably why Fair Use Week started six years ago.  Meanwhile, with the jury still out as to whether the “innovation economy” is really an economy at all, at least the Courts of Appeals have restored some order to the application of fair use for the time being.  

In the News: Sarah Jeong, “Fake News”, & Fair-Use

It’s another one of those weeks when there’s stuff happening faster than I can write about any one thing. So, here’s a summary of a few items of note …

Anti-Copyright Ideologue Named Tech Writer at NYT

Twitter lit up yesterday with accusations that The New York Times has named a “racist” to its editorial board, citing anti-white tweets made by technology writer Sarah Jeong, who is Asian. These complaints read like a lot of whinging nonsense, taking Jeong’s comments out of the context in which she was apparently responding (albeit ill-advisedly) to racist or sexist remarks directed at her. (God, I love Twitter for the way it brings out our better angels.)

What is notable about Jeong as the Times’s new “lead writer on technology” is that she is an anti-copyright ideologue, who has written various articles and posts in a familiar, ill-informed style akin to Cory Doctorow. In February of 2016, I wrote a fairly extensive response to several errors she made in a Motherboard editorial predicting that copyright law might enable the Chinese government to disappear the famous “Tank Man” photograph from the internet.  It’s still online of course.

So, while I truly doubt Sarah Jeong is a racist and think the people labeling her as one should get a grip, I am equally skeptical that future NYT editorials on the intersection of technology and copyright will be well-balanced—or even accurate.

New Paper on Why People Share “Fake News”

Related to the above, I notice that the National Review site has two top stories featuring Sarah Jeong, the second of which is headlined “Yes, Anti-White Racism Exists.” This dumb and bogus narrative is what academic Alice E. Marwick would identify as a “deep story” in her new paper titled Why Do People Share Fake News? A Sociotechnical Model of Media Effects. Unable to fully answer that question yet, Marwick provides a complex nuanced framework for further discussion, identifying socio-cultural factors that cannot be overpowered by solutions like fact-checking.

Although the volume of what Marwick calls problematic information is greater among the contemporary “right” at present, the contemporary “left” is by no means immune to the underlying reasons why people are apt to believe and spread “fake news,” hoaxes, and other forms of disinformation. I’m working on a longer post summarizing Marwick’s paper, but for those interested, her full paper is here.

TVEyes Files for Cert at Supreme Court

Filing a petition for Supreme Court hearing in its ongoing litigation with FOX News, TVEyes hopes to get another shot at presenting arguments that failed in the Second Circuit in February of this year. Eriq Gardner for The Hollywood Reporter writes, “TVEyes’ attorney tells the Supreme Court that the 2nd Circuit decision conflicts with precedent and ‘creates a circuit split over a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.’”

There is no brief to review yet, but that statement alone, taken from a request for an extension to file, does not seem to bode well for the Supreme Court granting cert for a couple of reasons. The first, as detailed in this post, is that the same appellate court that ruled in favor of Google Books also drew sharp distinctions between that case and TVEyes (ergo, maybe not so much of a split). The second reason is that it is consistent with precedent to hold that the First Amendment rights of users of a service do not automatically make the service itself non-infringing. This is a chronic argument made by tech-industry players, and as described in this post, courts generally take a dim view of corporations that attempt to “stand in the shoes” of their customers.

I’ll be surprised if SCOTUS agrees to review this case, but if it does grant cert, expect a storm of amicus briefs to follow.

EFF Honors Itself With Its Own Award

In a July 30 announcement, the Electronic Frontier Foundation named Stephanie Lenz, creator of the “Dancing Baby” video, among the recipients of this year’s Pioneer Award. “Stephanie Lenz’s activism over a home video posted online helped strengthen fair use law and brought nationwide attention to copyright controversies stemming from new, easy-to-use digital movie-making and sharing technologies.” Many of us will never experience the injustice of having a video removed and then restored to YouTube, but in that silent interval, when people could not watch Lenz’s baby boy dancing in the kitchen, her world—indeed the whole world—was just a little bit darker.

I wrote a post in October of 2016 summarizing the narrative of this decade-long EFFishing expedition; but suffice to say this award-earning “activism” did not even begin as a fair use case; “Fair-Use Champion” Stephanie Lenz stated her own ambivalence about the video remaining on YouTube; the fair use/DMCA argument itself is razor thin; and I would bet anything that, beyond us copyright watchers, “nationwide attention” sounds something like this: Oh yeah, didn’t Prince sue some mom? And that didn’t even happen.

So, in the same way that Stephen Carlisle described Stephanie Lenz as the “nominal plaintiff” in Lenz v. UMG, it seems reasonable to call her the nominal recipient of this award, which should rightly go to the EFF’s own Corynne McSherry for Outstanding Achievement in PR Through Boondoggle Litigation.

Celebrate fair use, but don’t misunderstand it.

fair use

Not that copyright stories should hope to compete with the drama coming out of Washington these days, but it’s more than likely that copyright policy and news will now be viewed through that multi-faceted, jittery lens; and the political climate certainly provides new context for creating freshly distorted views on various topics.

For instance, today begins the 4th Annual Fair Use Week, a celebration of the fair use doctrine in copyright law; and I will not be surprised if various organizations and individuals seize upon what I’ll call our current reality crisis in order to remind us of the many ways—reportage, education, parody, commentary, scholarship—that the fair use principle enables creators to speak truth to power.

In recent weeks, the nation’s university and public librarians have stood shoulder-to-shoulder to form a bulwark against the plague of fake news and gross distortions by elected officials, and I certainly share a solidarity with that effort. But while it is true that many important creative and informative expressions are indeed supported by the fair use principle, it is also necessary that my librarian friends in particular (yeah, I have librarian friends) recognize that some of their allies in this celebration sometimes promote fair use messages and agendas that get a little alternative-factsy themselves. Add to this any number of casual references in blogs, articles, or editorials that describe uses of works as “fair” when they don’t implicate the doctrine at all, and it’s worth remembering that fair use bell-ringing also celebrates a fair amount of confusion about copyright law.

There is value, of course, in highlighting examples of expressions that have relied on fair use; it is one aspect of celebrating free speech. But in the digital age, invoking the principle has taken on a distinctly anti-copyright connotation, which is functionally absurd and often misleading in ways that can actually get independent creators into unnecessary legal trouble. (See posts here, here, and here.) Fair use does not exist without copyrighted works to use in the first place, and the fact that countless fair uses produce new works which may then be separately copyrighted ought to provide a framework for understanding fair use as a component of copyright law, baked into the federal statute since 1976.

At the same time, no serious copyright advocate is opposed to the fair use doctrine since it is in the interest of all authors, big and small, to have the opportunity to make fair uses at various times in their creative endeavors. In particular, it’s counterintuitive that fair use is often portrayed as anathema to the interests of the large rights holders—the big studios, publishers, and labels—when it is these mass producers who tend to rely heavily on both fair use and the idea/expression distinction in copyright in order to produce and distribute in great volume without chronic litigation.

I get why librarians and universities celebrate fair use and that they have their own tussles with copyright law. These views deserve consideration given the sincere, public-serving intent of most librarians and educators. But those discussions are not always allied with the interests of venture capitalists betting on various tech companies whose models require the exploitation of creative and informative works without the cost of licensing.

The Fair Use Narrative in Current Caselaw

Behind the PR messages aimed at the general public is a more subtle and complex story playing out in various cases, revealing a consistent effort to strain the intent of the fair use doctrine until some precedent-setting case can weaken, or even nullify copyright protection altogether. In fact, the narrative of the copyright “debate” today is partly driven by predatory and wealthy tech enterprises, seeking to exploit every weakness in a legal framework that never anticipated the scale, volume, or diversity of infringement that would become possible in the digital market.

Often these enterprises have no public-serving component whatsoever, as they seek—with the aid of “digital rights” groups like the EFF—novel interpretations of the fair use test that strain the expression-based intent of the principle. For instance, the site fairuseweek.org, with its many academic signatories—including my alma mater—features an infographic highlighting a business called TVEyes as one example of the doctrine at work. I sincerely doubt, though, that many of those academics and librarians have any idea what TVEyes actually does or if they know the status of the Fox v TVEyes case.

TVEyes is an expensive, subscription-only, B2B, news-monitoring service that operates by making copyrighted works available without licensing, and if its particular fair use claims are upheld, the precedent could be used to nullify authors’ rights, allowing nearly any technology company to freely exploit works for almost any purpose. That’s not what fair use was meant to enable. As a side note, oral arguments are scheduled for March 7 at the Second Circuit Court of Appeals; so at the very least, in the interest of accuracy, it might be better to delay citing TVEyes as an “example of fair use” until the case is settled.

By all means, we should celebrate fair use with the understanding that the principle was relatively complicated before the digital age and is far more complicated today. This complexity is both generalized in the PR messages influencing perceptions among general users and independent creators; and this complexity is highly specialized in much of the current caselaw as the courts seek to consider fair use in the context of large-scale technological uses, rather than in the more traditional author-to-author uses for which the principle was codified into law.