[ARW readers are familiar with the excellent work of Hugh Stephens and this post is no exception.  Mr. Stephens calls attention to the pincer attack on creators by the forces of evil  that sure bear a striking resemblance to the anti-artist yearnings of a certain ginormous advertising company based in Mountain View.]

 

As I write we are in the depths of the COVID pandemic. Each day brings new and more frightening predictions of what is to come, what we all need to do to “bend the curve”, and how it is affecting people globally from both a health and economic perspective. The pandemic is a once-in-a-lifetime challenge….

[I]t is extremely disappointing to see special interest groups taking advantage of the COVID crisis to push their personal pre-COVID agendas. In the case of copyright, this consists of using the crisis to attack the fundamentals of copyright protection, namely the right of creators to control distribution of their work, and thereby to earn a return on the sweat equity they put into the creation in the first place.

In the case of copyright, the first shot was fired by the Internet Archive which declared that it would make its collection of 1.4 million copyright-protected books freely available through its online Open Library, using the COVID pandemic as the pretext. The Open Library’s self-professed goal is to make all works ever published available in digital format. To do this, it scans any works it can get its hands on, and inventories them in its digital library. While it has over 2.5 million public domain works in its catalogue, it is not too particular as to whether a work is in copyright or not; it’s all grist to the Open Library’s mill.

Read the post on Hugh Stevens’ blog: COVID is Not an Excuse to Throw the Accepted Rules Out the Window: Copyright as the Canary in the Coalmine. — Hugh Stephens Blog

Superpowers In River City: Anti-Artist Activist Brewster Kahle’s Revealing “National Emergency Library,” the Faux Triumph of Privilege

If you’ve ever seen the classic musical The Music Man, you will remember the stereotypical character of “Marian the Librarian” who was romanced by the grifter Harold Hill.  When it comes to the Internet Archive, we’re way past Marian but we have a whole new character in the role of grifter.

Brewster Kahle is not likely a name you recognize.  But he is definitely well-known to the digital elites–which we know because his picture shows up in the 2000 version of the Billionaire’s Dinner rubbing elbows with the cognoscenti including fellow diners Nicholas Negroponte of MIT and MIT patron Jeffrey Epstein. Somewhere along the line Mr. Kahle seems to have gotten very rich or perhaps richer still.  And he also founded Alexa and the Internet Archive which is our focus in this post because of the Archive’s announced “National Emergency Library.”  We’ll come to that effort presently, but first let’s consider Mr. Kahle’s history in the copyright context.

A Man With A Mission Meets A Dandy on the White Horse

Mr. Kahle was and is a man with a mission in the mold of his fellow pirate utopian and EFF founder, John Perry Barlow.  Less flamboyant to be sure, but cut from the same anti-copyright cloth Mr. Kahle has attracted literally the same crew of Lost Cause dead enders.  These dots will be very familiar.  It’s all very Googlely and Mr. Kahle has shown himself to be as close to Google’s mission as one is to two.  Whether revolutionary leader or useful idiot, Mr. Kahle has proven his value to Google again and again over some two decades.

Copyright students may remember Mr. Kahle from 2006 as the plaintiff in Kahle v. Gonzales, one of the cases where Lessig did a brilliant job of making the predictably losing argument as an extension of yet another losing argument from Lessig’s cherished Eldred case.  (Has Lessig ever won anything that Google didn’t pay for?)

Mr. Kahle challenged the Copyright Renewal Act of 1992 that eliminated once and for all the renewal requirement from the U.S. 1909 Copyright Act that was held over in the 1976 Copyright Act for certain registrations.  (Lessig was joined as co-counsel in the Kahle case by his protege Professor Christopher SprigmanSprigman is a leading anti-artist zealot.  He currently represents Spotify in the Nashville cases and is leading the American Law Institute’s embarrassing and scandalous “Restatement of Copyright” trojan horse campaign that has been thoroughly discredited.)

Kahle, Lessig and Sprigman essentially argued then and now for a renewal requirement to make copyright renewals an opt-in system rather than an opt-out system.  That meant that authors would have to take an affirmative act to renew their copyrights after an initial term.  As Lessig writes back in 2003, “The revival of a registration requirement would move content into a public domain quickly….There are many who have written brilliantly about what is right in this context….But the hard problem is how to make the right real. That is what this movement needs now.

You get the idea.  The Lost Cause is born.  And Kahle was apparently only too happy to finance “the movement” with a younger Lessig imagining himself on a white horse leading the mob.  Younger but just as much the tiresomely self-righteous Google fan boy and thin-skinned ideological dandy.  Because the Lost Cause was “right”.  Beware men on white horses waiving the privilege of “what is right” backed by the superpower billionaire boys club.

It must be said that a creator’s failure to comply with Mr. Kahle’s new formalities of registration and renewal (unique to America, by the way) would allow the Big Tech superpower benefactors of Lessig, Sprigman and Kahle.  Like superpower privilege that induced a mass taking by the National Emergency Library, Big Tech superpowers could exploit those unrenewed copyrights without a license or payment to the authors, also known as the public domain, public knowledge, or any of the other shibboleths that mask the very traps for the unwary that Congress wanted to prevent in the 1992 legislation.  (In another proof of the Lost Cause, Kahle’s lawyer Professor Sprigman was  later a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated for the very registration requirement that they resoundingly lost in the Kahle case (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”.)

For those reading along at home, procedurally the odd and rather desperate signpost of the Kahle case was that Lessig largely based Kahle on Eldred which he lost in the Supreme Court.  When Kahle got to the 9th Circuit, this oddity was not lost on the judges who held–in possibly the least suspenseful ruling of the decade–that “[Lessig, Sprigman and Kahle] make essentially the same argument [in Kahle], in different form, that the Supreme Court rejected in Eldred. It fails here as well.”

Kaboom.

So Kahle got into trouble at 9th Circuit.  As Harold Hill might warble, that’s trouble with a T that rhymes with P and that stands for “phool.”

Kahle’s Lost Cause and the National Emergency Library’s Fair Use Superpower Privilege

Yet despite continued losses, re-imposing a copyright registration requirement has become the Lost Cause of the anti-artist crowd.  Not only has Lessig pushed this hustle, but its proponents include Pamela Samuelson and Christopher Sprigman, so we can only assume that the controversial “Restatement of Copyright” promoted by Samuelson and written by Sprigman will no doubt devote some ink to this topic.  Indeed, we saw Samuelson raise registration in her most recent testimony in a bizarre hearing before the Senate IP Subcommittee.

And we also see a version of it in the Internet Archive’s absurdly transparent lawlessness masquerading as fair use with its “National Emergency Library” which takes post-disaster profiteering to a whole new level.

In a nutshell, the Internet Archive is seizing upon the COVID19 global crisis to make digital copies of books of dubious provenance available for free.  They managed to get a bunch of libraries to sign a letter saying how groovy the Internet Archive is for graciously aiding the world–if this sounds familiar, it is very reminiscent of the Google Books messaging as the “digital library of Alexandria” and other drivel.  (See the timeless Google and the Myth of Universal Knowledge:  A view from Europe by Jean-Noël Jeanneney, then president of France’s Bibliothèque Nationale.)

As someone who grew up with both hurricanes and earthquakes, I have a viscerally embedded disgust for those grifters who exploit human misery for their own private agenda, be it profiting in cash or distorting the fair use defense beyond recognition to confer a cash equivalent benefit.  Both are equally loathsome forms of looting and under the circumstances may well be a form of price gouging.  If proven, that’s a crime in most states.  Indeed, if imposed by state authority, such as a state library, it may well be found to be an impermissible form of eminent domain, or a taking.  There’s that word again.

The National Emergency Library:  Leap of Faith or Superpower Privilege?

What makes a casual interest into a full-blown negationist Lost Cause ideology is the leap of faith that the dead ender’s ill conceived campaign was actually “right” all along.  (A healthy rasher of narcissism is also a nice-to-have.)  You know, defending consumer rights against the aggression of copyright maximalists.  You see, it was only the privileged Bad People conspiring against them that gypped the Good People of the victory to which they were entitled.  In fact, Mr. Kahle says as much in the Internet Archive blog announcing the “National Emergency Library”:

“The library system, because of our national emergency, is coming to aid those that are forced to learn at home, ” said Brewster Kahle, Digital Librarian of the Internet Archive. “This was our dream for the original Internet coming to life: the Library at everyone’s fingertips.”

And there it is, the Lost Cause defined.  The indefinite “our”.  Who exactly is “our” or “us”?  The Good People.  The Right People.  The movement people.  Whose superpowers you oppose at  your peril you others.  You authors.  Because “our” national emergency justifies “our” fulfillment of “our dream.”

The Good People share that “dream” of “ours” as we are told in the Archive’s blog post cum press release:

“Ubiquitous access to open digital content has long been an important goal for MIT and MIT Libraries. Learning and research depend on it,” said Chris Bourg, Director of MIT Libraries.

Ah yes, MIT’s goal must be extra groovy, right?  I’m sure Joi Ito (of Creative Commons fame among other rewards) thought so when he was taking Jeffrey Epstein’s money with MIT’s blessings.

What bunk.

The Googley Expansion of the Fair Use Superpower as Eminent Domain Taking

And of course the central rationale for why the Archive could rip off over a million books is…wait for it…fair use.  But a very super duper version of fair use that you may not have encountered before.  This is a super duper opinion shared by 300 or so librarians, many of whom appear to be employed by state-owned libraries.  They signed a letter promoted by the Internet Archive that puts their taxpayer subsidized employment right on the line.

You have to take a step back and look at the National Emergency Library in the larger context of the continued distortion of fair use by Google and its cronies as we recently argued in an amicus brief supporting Oracle in Google v. Oracle, the long-running copyright case now pending before the Supreme Court that is straight out of Bleak House.

Unfortunately, like the DMCA, Section 230 and so many other grotesquely unfair benefits that Big Tech superpowers grasp for themselves, the only way to fight back in the chaos of the current pandemic is to literally fight back.  Big Tech’s superpower billionaires are doing just fine as authors struggle even more than before the time of the virus.  But these people are more than willing to capitalize on the current crisis to distort copyright exceptions like fair use, just like Google is forcing users of its Verily coronavirus test to open a Google account and give up their health data.

I for one find it very odd that 300 or so librarians could all agree in a matter of hours on a complex legal opinion regarding expanding the contours of fair use–unless that opinion were written for them by someone they already knew.  Such as their lobbyist, for example.   Maybe not, but it does seem it’s something that state Attorneys General should look into as it applies to their librarians.  Assuming that signing up for the scheme is not simply aspirational and they are all actually participating in the cabal, these librarians are incurring liabilities for their employers and quite possibly the taxpayer.  If state libraries are indemnifying the Internet Archive, that indemnity may well be impermissible under their respective state laws–and that’s something that ought to interest attorneys general, as would the converse failure to obtain indemnity.

On the other hand, one of the legal arguments used as encouragement to librarians to sign onto the legal opinion was offered by one Kyle Cortney (securely employed by Harvard University) based on the privilege of “superpowers.”  Yes, that’s right:

[L]ibraries and archives have “superpowers” under the copyright law that allows us to supply our communities with access to materials for research, scholarship, and study….Before I get to the TEACH Act, Section 108, or any other superpower – first and foremost, we must talk about fair use. While this isn’t a library superpower – fair use is for everyone! – it certainly falls to the libraries and archives, in many circumstances, to be the champions of fair use on campus (and bust any fair use myths!)

See?  “Our dream”, “our national emergency”, “our superpowers.”  And “our” powers are so “super” that “we” will shove those superpowers where the sun doesn’t shine in the middle of the Harvard Yard.  All based on a superpower of blatant distortions of fair use subsidized by the endowment of the richest university in the history of the world.  But understand this, you will win this argument about the same time that Harvard refunds tuition in the time of the virus.  Unless you are willing to go to the mattresses.  And if you’re thinking these superpowers are on their knees begging to be sued, you very well may be correct.

That “superpower” privilege may be how they roll at Harvard, but what I’d like to know is how many state AGs have signed up for the superpower theory?  Such as the Attorneys General of Illinois, Kansas, Michigan, Virginia, North Carolina, Ohio, Pennsylvania, California, Washington, New York, Indiana, Massachusetts, Florida, Minnesota, Texas, and Idaho.

Maybe the next sound they hear will be sad trombones, all 76 of them.

@NorthMusicGroup’s Excellent Analysis of MLC Metadata Issues

It has been patently obvious from the first discussions of the Mechanical Licensing Collective several years ago that transitioning from a century of song-by-song licensing was going to be a highly costly and highly complex process.  The MLC was sold to songwriters on the idea that there would be no administrative costs to song copyright owners for participation in the MLC.  Why?  Because the services were going to pay for those administrative costs.  Like the world’s songwriters, we take them at their word.

Zero means zero.

Now that it is time to actually implement the MLC, addressing those administrative costs have become front and center.  The Copyright Office has put a number of issues out for public comment for purposes of drafting regulations covering that implementation including what metadata must be delivered to the MLC.  Those regulations are a significant inflection point for driving the industry toward metadata standards that start in the recording studio and end at the distribution point.

If we fail to seize this opportunity, it is not a very big leap to see a true morass at the MLC.  But before we deal with the prospective solution, the Copyright Office needs to address the retrospective problem.  Remember, the MLC is charged by the U.S. Congress with the task of licensing all songs in copyright that have ever been written or that ever may be written and is exploited under the blanket license.  The first clause of that disjunct is every song in copyright that has ever been written–in any language–and that’s a lot of songs.  And even more metadata.

The MLC “global rights database” is an empty vessel that must be filled and how that vessel is filled–and the cost of filling it–must be addressed now.  It is hard to believe that an organization that in the last nine months has failed to launch a website beyond what anyone could throw up with a Squarespace account is going to hit their January 1, 2021 deadline (the “License Availability Date”).

In addition to public comments, the Copyright Office is arranging for calls with interested parties provided that the party initiating the call document the discussion in a letter that is posted on the Copyright Office website.  You can read the letters here–if you know what to look for.  These calls tend to focus on some of the more bread and butter issues that one would have thought would have been resolved before any entity was designated as the MLC.  This is particularly confusing since the services get the benefit of the MMA safe harbor immediately, but may not be able to account to songwriters for the foreseeable future.  And the blanket license was kind of the point of the whole exercise.  And, of course, the coronavirus is the tailor-made WFH excuse that will mask a thousand failures.

I want to call your attention to an excellent confirming letter by Abby North that hits many of these issues head on.  We’re really glad that she raised these issues with the Copyright Office so that the Office gets the perspective of independent publishers and songwriters who are expecting the MLC to cover the cost of preparing and delivering their metadata.

This passage is particularly illuminating:

Realistically, rightsholders with more than just a few works must have access to batch works registration tools: an excel spreadsheet template must be created and made available, and a method for that spreadsheet to be validated and then imported into the works database must be made available.

For the MLC database to have truly comprehensive, standardized and accurate works data and be compatible with global Collective Management Organizations (CMOs), the MLC must accept CWR as a works registration format. The MLC must also provide or support an affordable tool for creation of CWR files.

Common Works Registration (CWR) is the works registration standard utilized by most collection management organizations around the world.

There are multiple concerns related to the use of Common Works Registration (CWR) by the MLC. The first concern is pricing and availability of CWR software.

CWR is currently available as part of very expensive rights management software used by many mid- sized and large publishers. For rightsholders who do not have the budget or need for such rights management tools, there must be reasonably priced CWR availability to all rightsholders that need to register many musical works.

The second issue relates to whether a publisher IPI will be required by the MLC for a rightsholder to be allowed to submit a CWR file.

Currently, only publishers (as opposed to writers) may receive CWR Submitter IDs and be recognized as submitting parties. To affiliate as a publisher with ASCAP costs $50. To affiliate as a publisher with BMI costs $250. It is not reasonable to require a rightsholder to pay to get a publisher IPI, just so that rightsholder may submit CWR files to register its works.

The CWR specifications indicate a writer may be a CWR submitter. However, according to my research querying many of the world’s largest CMOs, those CMOs do not accept CWR files directly from writers, unless the writer is also a publisher with a CWR Submitter ID.

One reason for this is that the file-naming requirements within the CWR spec require a CWR Submitter ID. Another reason is simply that Writers thus far have not attempted to submit CWR files.

It would be advisable for the MLC to accept works registration files in the CWR data standard, but modify the CWR specified file-naming convention such that a submitter could be a rightsholder with no CWR Submitter ID.

I commend North Music Publishing’s comment to you as Abby North raises may critically important points that I fear will be swept under the rug.

It is important to note that there is a huge difference between ASCAP and BMI charging to affiliate and the costs of complying with the MLC’s registration formalities.  (Realize that MLC registration formality is different than a copyright registration filed with the Copyright Office.)  ASCAP and BMI compete with each other and unlike the MLC neither affiliation is required by the Copyright Act.

Another difference is that ASCAP and BMI are not funded by the music users (or collective licensees) and neither represented to songwriters that the music users would pay the entire cost of administration–including submitting metadata, tax documents, correcting mistaken registrations, and otherwise complying with the MLC’s formalities.  This is particularly mystifying to ex-US songwriters who have quite a different experience with their local collecting societies.

Because if “the services will pay for it” doesn’t include these out of pocket costs taken–there’s that word again–by the Congress by imposing the formality in the Music Modernization Act, then it looks like the only thing that “administration” does cover is the tens of millions of the cost of the MLC’s rather luxurious overhead.  Overhead that looks even more luxurious with each passing day in the time of the virus.

If these issues that Abby North raises do not get fixed, there is really something wrong going on.

 

Applying for Small Business Disaster Loans in Travis County

UPDATE:  SBA disaster loans now available apply here: https://www.sba.gov/funding-programs/disaster-assistance 

 

We’re expecting that the Small Business Administration will declare Texas counties eligible for Economic Injury Disaster Loans as soon as Friday after Governor Abbott made the formal request.  You can track that designation on the SBA site.  More information on how to apply on the Texas Division of Emergency Management and you can fill out an economic injury sheet to submit to the SBA’s local disaster manager.

You can get ready to apply for these loans in advance by creating an online profile https://disasterloan.sba.gov/ela/Account/Register1 and beginning to prepare the required documents on page 2 of this sheet: https://disasterloan.sba.gov/ela/Documents/Three_Step_Process_SBA_Disaster_Loans.pdf which also has instructions for how to apply online.

Turning Point Austin 2020: Venue Lease Relief

It’s beginning to sink in–ever since the cancellation of SXSW due to the City of Austin’s declaration of a local emergency, it’s becoming apparent that Austinites have to stick together like never before.  The consequences of failure are dire–a city that’s bills itself as the Live Music Capitol of the World better be sure to have some live music.  That’s why we call this series “Turning Point Austin 2020.”  It’s not just Austin, by the way, but that’s where I live so that’s what’s on my mind.

It’s time for policymakers to step up and get shoulder to shoulder with the artists, venues and music business folk who in large part make Austin what it is.  If that goes away, it will be just another college town with a WeWork and Starbucks.  Like its counterparts in San Francisco, New Orleans, Toronto, Memphis, Tulsa or Seattle, the Austin music economy is very fragile.  We can’t dial up an intracompany transfer from New York or Silicon Valley to cover our overhead.  And a good place to document just how fragile it is would be the Austin Music Census, a document that has driven music community public policy in Austin for the last five years.

Over 100 venues participated in the Census.  People often think that the Census is about Austin musicians, which it is.  But it is also a comprehensive data driven needs assessment of venues and other music industry workers as well.  We’re going to focus on the venues in this post.  The venues are an integral part of the beating heart of the Austin music community.

There’s lots of things that the City of Austin could do to fix some of the financial problems that venues will have to fix out of pocket as there’s no insurance to cover their losses in all likelihood (but a very qualified maybe–see Pandemic: Force Majeure Contracts and Insurance in the Music Business.)

I discussed the situation with Nikki Rowling who was the Project Architect and Lead Author of the Austin Music Census.  Nikki pointed out that applying these rent multipliers in the context of SXSW cancellation seemed a lot like price gouging, and she’s right.  One idea we chewed around is to temporarily ban rent multiples as price gouging and look into reversing rent acceleration clauses.   The Austin Music Census uncovered instances where landlords charge higher leasehold rents to venues during SXSW (sometimes double) and leases may contain rent acceleration clauses that raise rents prospectively based on a benchmark of increasing economic activity in Austin.

It will be important to take a close look at rent acceleration clauses–very hard to say in the abstract, but there is an assumption that a rising tide lifts all boats.  That’s obviously not the case.  It will be a heavy lift to have a rent acceleration clause apply in the reverse to lower rent, but it’s a thought.  It might be possible to at least keep the clause from increasing a venue’s rent.

Leases that increase rents during SXSW when SXSW is actually happening is one thing.  If those clauses collect higher rents when SXSW would have happened but didn’t happen is another, particularly due to the present situation.  Sometimes this increase may be expressed as simply as “double rent in March.”  That’s not acceptable after the Mayor decided to declare an emergency that he knew had the effect of cancelling SXSW–if you think it sounds like price gouging during a hurricane, that’s because it does sound like price gouging during a hurricane.  And we don’t like that stuff in Texas.

Under Texas Business & Commerce Code §17.46(b)(27), it’s possible that those rents could be a “false, misleading or deceptive acts or practices” that are “unlawful and are subject to action by the consumer protection division” including:

(27) taking advantage of a disaster declared by the governor under Chapter 418, Government Code [to declare “a state of disaster”], by:

(A) selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price;  or

(B) demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another necessity;

“Another necessity” surely would be rent.  (Or utilities.)  It is worth exploring whether paying double for rent so the landlord can profit from an event that never occurred due to an act of government beyond the control of the tenant is actually unlawful.  It’s also worth noting that approximately 34 states have comparable laws.  Even if the lease is silent as to why rent might be doubled in March, it would not be hard to show that the reason for the double rent wasn’t because the month was spelled with first letter M but had everything to do with the letters “SXSW” as a condition of the double rent payment that cannot be met.

 

 

 

 

2013 Repost: An Answer for Mr. DeSantis: “Registration” and the Reformalization of Copyright Under Professor Samuelson’s Copyright Principles Project

[Some of you may have noticed that the U.S. Senate Committee on the Judiciary, Subcommittee on Intellectual Property is holding a hearing at the Senate on March 10 entitled “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?”.  Sounds like the witnesses would be from outside the U.S., right?  But the witness list is interesting because the only person not from the U.S. is Julia Reda, the former Pirate Party Member of the European Parliament.  Although you wouldn’t know about the Pirate Party fact from Ms. Reda’s Truth in Testimony biography.   We remember, of course, but it would be relevant for her to mention that affiliation given the topic.  Oh, well.  Recall that the Pirate Party frequently disclaimed any connection to the Pirate Bay.  There’s no connection, like the Pirate Bay’s co-founder Peter Sunde was just coincidentally running for the EU Commission Presidency on the Pirate Party slate at the time of his arrest and imprisonment in Sweden.  Also see one of the first posts on MusicTechPolicy, “But Do Their Eyes Glow: The Children of the Lessig God and the Viking Pirate Kings.

Another witness at the March hearing is Professor Pamela Samuelson.  We also remember Professor Samuelson’s 2013 testimony before the House Judiciary Committee regarding her Copyright Principles Project.  If you’ve been following the scandal regarding the American Law Institute’s Restatement of Copyright like Senator Tillis has, that name and that project may sound familiar–Professor Samuelson essentially is attempting to codify the Copyright Principles Project through the back door of the ALI Restatement.  This time with the assistance of Spotify’s lawyer Christopher Sprigman who recently launched a gratuitous savaging of David Lowery.

Sprigman Lowery
Pot, meet kettle

Back in 2013, I wrote a post on Music Tech Policy regarding an exchange between Samuelson and then-representative Ron DeSantis (now governor of Florida) regarding the issue of registration.  Remember, the Copyright Principles Project and Christopher Sprigman (and therefore Lessig) all are enamored of copyright registration (but never seem to address the expense to the Copyright Office).  I cynically believe that it is so that more people can get tripped up by failing to comply with the formalities such as we recently saw in the Woody Guthrie case which has a mind numbing reliance on flaws in the Luddite last-century formalities of the 1909 Copyright Act that was in effect for “This Land is Your Land.”

If you want to get the context of this reblog, you should read David Lowery’s post in Politico that came out a couple days before Samuelson’s 2013 testimony and featured prominently at the hearing.]

A question came up regarding copyright registration at the May 16, 2013 House IP Subcommittee hearing featuring Professor Pamela Samuelson.  Professor Samuelson teaches at the University of California at Berkeley and also runs the Samuelson Glushko system of academic legal centers (the “Glushko” is Professor Samuelson’s husband, Dr. Robert Glushko, a Santa Clara Valley (aka “Silicon Valley”) tycoon and fellow academic). The network of the Samuelson-Glushko centers are located at schools such as Fordham, American University, Colorado University, University of Ottawa in Canada and of course the University of California at Berkeley.

I think it’s fair to say that the academics in these centers have an abiding interest in what can be called the “copyleft” side of the policy continuum.  The Samuelson Glushko centers sustain many luminaries of the copyleft such as Michael Geist and Peter Jaszi who frequently purport to speak for the “public interest”.  Somehow their interpretation of “the public interest” never seems to include the artist side–which is, after all, where copyright starts–and always seems to benefit the multinational technology companies such as Google.  This may explain why we find Professor Samuelson on the board of the Electronic Frontier Foundation, an organization that is no friend of artists and that received long term funding from Google.

The reason that Professor Samuelson was testifying before the IP Subcommittee is that she formed a discussion group called the “Copyright Principles Project” or “CPP” around the time of the failed Shawn Bentley Orphan Works Act.  As Representative Ron DeSantis (R-FL) determined by questioning Professor Samuelson at the 2013 hearing, the CPP was convened by Professor Samuelson with one principal qualification for membership:  That each was a member of Professor Samuelson’s rather exclusive “social network,” i.e., an FOP (“Friend of Pam”).

In 2010, Professor Samuelson wrote up some of the CPPs collective ideas in a “white paper” of sorts called “Copyright Principles Project: Directions for Reform.”  The white paper has a list of those “convened” and based on the testimony of attorney Baumgarten and other information, there was little broad consensus about many of the “principles” but everyone was very polite to each other (as one might expect given that no one whose livelihood was at stake seemed to be included in the FOP “social network”).  The flaws of composition and conflict of interest in CPP is discussed elsewhere on MTP.

I mention the formation of the social network in relation to the (second) failed attempt to pass an “orphan works” law in the US for a reason.  This post is limited to the “reformalization” of copyright advocated by the Copyright Principles Project and the inevitable interaction of that new registration requirement with the orphan works issue.  It is well to remember actively that the word “registration” in the white paper has a special meaning, and not the meaning that we currently attach to a copyright registration, or even the meaning attached to copyright registration under the 1909 Copyright Act.  Although the word “registration” is the same in the past and current law and the white paper, the meaning is quite different.

Professor Samuelson described it to the committee as “rethinking registration in a way that will take advantage of the opportunities of the new information technology environment.”   We’ll come back to this–for now, realize that it is the intention of the CPP to use the “new information technology environment” to give effect to this new registration requirement.  That is, to burden creators, not to help locate creators.  The witnesses were asked what had changed since their 2010 paper, and they all mentioned cloud computing and the proliferation of devices.  None of them mentioned The Death of Privacy.  The Death of Privacy should make it easier than ever to track down a creator to ask their permission to use their works.

This was never discussed.

When combined with the orphan works recommendation advocated by the CPP, the concept of registration as described in the white paper seems designed to create a new class of works available for mass exploitation: works that are not registered, even without regard to whether the author could otherwise be found.  These unregistered works may or may not be true “orphans” in the sense that the author or owner cannot be found after looking in the right place; rather, the work is simply not registered for some reason known only to the creator.

This approach changes the default from the “get a license” requirement on the user, to a new “chase a license” burden on the creator.

There was a 6th witness at the hearing–one that was not actually present, but whose presence was felt by all concerned.  David Lowery had published an op-ed at Politico.com in the days prior to the hearing and it seemed that many of the Members of the IP Subcommittee had read it carefully.  Then Ranking Member Mel Watt even entered the Lowery post into the committee’s record.  David critiqued the CPP white paper and specifically called out this registration proposal.

When Representative DeSantis asked Professor Samuelson a direct question regarding registration based on the Lowery piece in Politico, I regret to say that the transcript reflects that she answered a different question, leaving many with the impression that David got it wrong (emphasis mine):

MR. DESANTIS

There was this article, I think it was in Politico, and it was a musician, he basically said that if some of what you were advocating was adopted that an individual could post a photo online, like a family photo that wasn’t registered [as defined in the white paper] and you could have a user just take that and use it for their commercial gain.  Do you agree, is that true?

PROFESSOR SAMUELSON

No I don’t believe that’s true at all.

MR. DESANTIS

Why not?

PROFESSOR SAMUELSON

Because one of the things we made very clear was that to the extent that someone is commercializing something that someone posts online that’s actually an activity that copyright law would apply to.  I think that’s very clear from our report, especially the discussion about commercial harm.

Note that Professor Samuelson did not answer the question that was asked.  Representative DeSantis, referring to the Lowery op-ed, correctly asked if a family photo was not registered as advocated by the CPP could that photo be exploited commercially by a “user”.  (A “user” could include Google.)

Professor Samuelson’s response did not address the “registration issue” at all, merely that the commercial use of a family photo would be subject to the copyright law.    Which, of course, would always be true.  Or at least one would hope so.

David Lowery’s point was that if he failed to register a family photo under the registration regime contemplated by the CPP, his rights to stop even a commercial exploitation would be reduced under that regime.  As it is burdensome to register family photos (if that would even be permitted under the CPP regime), it is more likely that such works would be exploited.  (This relates to the CPP concepts of “commercial value” and the “commercially dead” as we will see.)

As I think can be demonstrated and that you will see in later installments of this post, David Lowery got it right.

I wish I could say that there was some special insight that Mr. Lowery brought to the issue, but frankly this registration “gotcha” that’s in the white paper has been around for quite some time, certainly since the 2008 attempt to orphan works.  It’s kind of old news, so it’s surprising that the CPP is making another attempt to push it over the wall.

It was criticized in 2008 and has been criticized by a variety of creators on at least two continents (e.g., Stop43 in the UK).  It was extensively criticized by Brad Holland of the Illustrators Partnership in his excellent article, “Trojan Horse: Orphan Works and the War on Authors“, serialized on David Lowery’s blog last year.  It was criticized at the Small Business Administration’s Roundtable on Orphan Works in 2008.  It has been criticized in the current orphan works inquiry at the U.S. Copyright Office.

And it will be criticized in this post although I claim to bring no special insight, either.  The problems with reformalization are obvious and the result is easily anticipated–it is a system seemingly designed to create orphans, not to prevent them.  And create them on a grand scale in the millions of works.

We have to assume that it was this harsh reality that Representative DeSantis wanted the IP Subcommittee to discuss with the disinfectant of sunlight.

 

Guthrie Family Wins, Copyright Trolls Lose on “This Land Is Your Land”

Ben Sisario is one of the great music journalists and has a succinct report on the key issue in the “This Land is Your Land” case.  The point of the 2016 case was to get a judicial ruling that “This Land” is in the public domain due to copyright formalities (not the passing of time).  Even so, it appears that the plaintiff had actually paid a $45.50 licensing fee to record “This Land” in what appears to be kind of a belt and suspenders approach where they get a license and then sue.  Nice.  (The case is Saint-Amour et al v The Richmond Organization Inc et al in the Southern District of New York, case 1:16-cv-04464, complaint is here.  Brace yourself–it is like a scorecard for everything that was wrong with the notice-based registration under the 1909 Copyright Act that the copyleft would dearly like to bring back–see Pamela Samuelson’s Copyright Principles Project and Spotify counsel Christopher Sprigman.)

The law firm that brought you a public domain case on “Happy Birthday” also decided to try one of these highly technical law suits based on the 1909 Copyright Act’s copyright renewal rules providing for a 28 year initial term and a 28 year renewal term with both “This Land” and separately with “We Shall Overcome.”  The 1976 Copyright Act got rid of those formalities once and for all–but there’s still some issues that overhang the rules.  Ben has a nice explanation, and Eriq Gardner also has a good rendering in the Hollywood Reporter.

But aside from the copyright formality, this case is also squarely in a political song camp that I have worked in for both artists, songwriters and political campaigns.  In fact, one of the assignments in my music business class was to give students 60 seconds to answer an artist who has found out that David Duke is playing their recording of an artist-written song at fund raisers.  The Electronic Frontier Foundation got involved in representing the group JibJab Media when the Guthrie publisher sued to stop a political parody without permission that settled confidentially and allowed the parody to continue.

U.S. District Judge Deborah Batts ruled last year that the lawyers in “This Land” could pursue their clients’ claims after a motion to dismiss that ruled unsurprisingly that all state law claims by plaintiffs were pre-empted by their federal copyright claim.  Judge Batts dismissed the state law claims without prejudice.  (We’re tracking down the court docs on this and may at least post the complaint and the ruling.)  That ruling drove a settlement in the form of an agreement in favor of the clients that the Guthries not to sue the clients.  The Guthries even refunded that $45.50.  Judge Batts unfortunately passed away on February 3 and the “This Land” case was taken over by her colleague in the U.S. District Court for the Southern District U.S. District Judge Kevin Castel.  Also not surprisingly, defendants moved to dismiss the lawsuit due to the settlement.  Surprisingly, the plaintiff’s objected for technical reasons, including recovering statutory attorneys fees in a case they settled.  We’ll see about that as Judge Castel notes in his opinion and order.

And guess who also found it odd?  Judge Castel ruled against the plaintiffs’s objection because the “extremely broad” terms of the agreement not to sue the plaintiffs “mooted” the plaintiff’s case so it was unlikely as a matter of law (essentially) that there was a reason to let the case continue after the settlement and refund.  Reading between the lines, if the court allowed the case to continue, it would have done so for agenda driven reasons which were the plaintiff’s agenda, not the court’s.  Courts are designed to hear cases and controversies, not re-write the Copyright Act (like what EFF tried to do with fair use in the JibJab case and what EFF’s benefactor Google is trying to do again with the Oracle case.)

Not that different in this case–the Guthrie Family makes their publishers very easy to find and include some of the really good guys in our business:  BMG Music Rights (who stood alone and victorious against massive infringement by Cox Communications), Essex-TRO (Ludlow) founded by the legendary Howie Richmond, Bicycle Music run by Jake Wisely one of the last honest men, and Universal Music Publishing run by Jodi Gerson who is in my mind the smartest writer advocate in the business.  My bet is that each of these outstanding publishers take their writer relations very very seriously and would stand with the Guthrie Family’s wishes–which is exactly what happened in this case.

Alternatively, the Guthrie Family seems to take their licensing practices very seriously, too, and make themselves easy to find.  Not good enough for the plaintiffs in the “This Land” case.

Part of this turns on some language that Woodie Guthrie allegedly wrote on the copyright registration for “This Land”:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

Now when the Electronic Frontier Foundation reads this some 60 years later after Woodie has conveniently passed on, this sounds a lot like a Creative Commons recantation, yes?  And because of the hype of Creative Commons, the EFF might like to associate themselves with this case like carp on bait.  What EFF skips over is that both EFF and Creative Commons are both funded by Google and the implications of that would probably not have been well embraced by Guthrie Père, particularly when that funding comes from zero class payment class action cy pres awards.

EFF Shill

creative-commons-2008-schedule-bSo the “This Land” case from a fair use perspective comes down to what David Lowery said in his testimony before the House Judiciary Committee in 2014 that we cited to in the Supreme Court Google v. Oracle amicus brief:

I am not concerned with parody, commentary, criticism, documentary filmmakers, or research.  These are legitimate fair use categories. I am concerned with the illegal copy that masquerades as fair use, but is really just a copy. This masquerade trivializes legitimate fair use categories and creates conflict where there need be none.

The Scope of Fair Use: Hearing before the Subcomm. on the Courts, Intellectual Property and the Internet of the H. Comm. on the Judiciary, 113th Cong. (Jan. 28, 2014) (statement of David Lowery) at 22.

I don’t think Woodie would have welcomed Google, Facebook, Spotify or TikTok using copyright exceptions sucking the value out of his songs for the profit of FAANGSTer, any more than he would have welcomed The Big Four of the Central Pacific Railroad doing the same.  (The Big Four were the railroad barons Leland Stanford, C.P. Huntington, Mark Hopkins and Charles Crocker.)  The “This Land” case really stood the purpose of copyright on its head in part because it was based on the Luddite formalities of the last century, but also because the plaintiffs evidently wanted the family to repay any license fees earned since 2010.  That’s harsh.

The Guthrie Family statement on this that Ben quotes really tells the story:

Woody Guthrie Publications, which is led by Guthrie’s daughter Nora, is a joint owner of the song’s copyright. But after the case was filed four years ago, Ms. Guthrie, who has been the longtime keeper of her father’s cultural legacy, said the dispute was about more than money. The copyright to “This Land,” she said, allowed the song’s message of inclusion to be protected from abuse and political jingoism.

“Our control of this song has nothing to do with financial gain,” Ms. Guthrie said in an interview at the time, as the 2016 presidential campaigns were kicking into high gear. “It has to do with protecting it from Donald Trump, protecting it from the Ku Klux Klan, protecting it from all the evil forces out there.”

OK, class.  Ms. Guthrie is on hold.  The hold button is blinking.  She wants to stop David Duke from using “This Land” at rallies.  Advise Ms. Guthrie.

You have sixty seconds.