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):


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?


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


Why not?


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.

@SoundExchange and @TXMusicOffice Host SoundExchange Session in Houston

[Editor Charlie sez: Great to see Texas Music Office and SoundExchange partnering to give Texas artists and producers a chance to sit down directly with SX to get their questions answered on digital royalties and payments.  And it’s not even SXSW!  More of this please!]

Google’s Data Center Climate Deniers Get Nailed in Luxembourg

Politico reports the latest backlash against Google’s massive data centers, this time in Luxembourg.

The [Luxembourg] government wants the investment to help diversify the Grand Duchy away from its reliance on the financial sector, but locals from the nearby town worry that the 34-hectare campus could burn through about 12 percent of the country’s electricity and use up scarce water, while providing only about 100 jobs.

“People were interested at first,” said Hientgen, the president of Pro Bissen, a local organization hoping to halt the project. “But now, they’re starting to increasingly realize that the data center will represent few jobs, barely any taxes, no scientific contribution — basically, only risks.”

This isn’t the first time that Google has been caught snarfing up electricity for its enormous data centers–notwithstanding that Google uses slight of hand definitional tricks to try to get you to believe that they get the power for the data centers from cherubic elves jogging on magic flywheels. The water to cool the hellish heat from these server farms obviously must come from the condensation on the hooves of Santa’s reindeer.

Data Centers

Actually not.  They get the power from the same place as everyone else, and the water comes from public aquifers, too.  Remember, it takes about as much power to run YouTube as it does to light the City of Cincinnati.

But Google consistently denies that their data scraping, storage and manipulation has an awful effect on the environment.  You know, like other corporate climate deniers.  And that water gets turned right into steam and it’s gone forever.

Google’s Data Center in Ron Wyden’s backyard at The Dalles, Oregon

But there is hope–Politico tells us that the locals may block the development.

Luxembourg, already the European headquarters of Amazon, has long been cozy with U.S. tech companies — perhaps even a bit too cozy, according to the European Commission, which in 2017 said the Grand Duchy gave illegal tax benefits to Amazon worth around €250 million. (The case is under appeal.)

In Bissen, Google faces a make-or-break communal vote in April, where local authorities will decide on whether the project can go forward. Google will then have to go through an environmental impact assessment and get government approval for the project.

The town of 3,200 is no stranger to foreign investors — both Goodyear, the U.S. tire company, and international steel manufacturing giant Arcelor-Mittal, have nearby plants.

But so far Google hasn’t swayed the locals. The U.S. company did hold an open meeting for the town, leaving many people unhappy.

@cushac: Bootleg Podcasts Are a New Frontier for Unlicensed Music on Spotify

[Editor Charlie sez:  Welcome back to the Super Bowl of Whack A Mole.  This is a huge issue and shows again how little the services pay attention to infringing content because of the fake “DMCA license”.]

Spotify and other major platforms like Apple don’t publicly disclose their processes for ranking podcasts, but industry experts believe the calculation involves a combination of factors like play count, number of subscribers, and listener ratings. The regular appearance of apparently pirated material on the music podcasts ranking raises the possibility that a song like “In My Feelings (Spanish Version)” is a minor hit that isn’t being formally accounted for.

Read the post on Pitchfork.

@overlordror: Testament Frontman — “Spotify is Making Billions Out of Our Music”

Testament frontman Chuck Billy recently shared some depressing thoughts on  Spotify and music streaming in general.

The band joined music streaming platforms despite believing that artist royalty payments are too low. During an interview on Underground Australia, Billy was asked to share his thoughts on the digital age. The answer was mostly a tale of gradually giving in after years of sinking monetization on digital platforms.  

Read the post on Digital Music News

@margarethmcgill: Oracle counters Google’s innovation claims in Supreme Court fight

Oracle pushed back Wednesday against Google’s claims that the survival of software innovation rests on their long-running copyright battle, arguing an Oracle victory will ensure software makers enjoy copyright protections.

Why it matters: The Supreme Court is considering key questions related to software copyright and fair use — with billions of dollars in damages in the balance.

Read the post on Axios