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.

 

Must read by @SenThomTillis: ALI’s proposed Restatement of Copyrights has the potential to harm the creative industries

[Welcome Senator Tillis to shining sunlight on the astroturf “Restatement of Copyright”, which in our view is a epitoma suprema of Silicon Valley shillery.  The letter that Senator Tillis refers to is the December 3 letter his colleagues and he sent to the American Law Institute asking some questions about the proposed Restatement (which isn’t all that proposed anymore as the drafting is moving along briskly).  I gather from Senator Tillis’s op ed that he hasn’t gotten a reply yet.  Which must mean that the mumbletank in the Silicon Valley policy laundry hasn’t quite figured out how to reply.  But here’s the question that no one seems to have asked yet:  Who is paying for the Restatement of Copyright?  I don’t mean which non-profit accountability blocker wrote the check, I mean who is the ultimate donor who is the source of donor directed funds?]

With millions of jobs and over a trillion dollars at stake, as lawmakers, we must ensure copyright laws continue to protect the livelihoods of our nation’s creators.

It is for this reason that we have sent a letter questioning the effort by a well-established legal organization to “restate” and reinterpret our copyright laws for the nation’s judicial system. Last time we checked, Article I of the Constitution specifically grants Congress the authority to make laws to allow for individuals in the creative industries to be fairly compensated – not law professors.

Read the post on The Hill

You might also be interested in these MTP posts from 2018:

Shocker: Is Spotify Lawyer Leading “Scholarly” Project to Create Fake Treatise?

The American Law Institute’s Restatement Scandal: The Futility of False “Unity”

A Look at Christopher Sprigman’s Recent Record

And from 2013 about the Copyright Principles Project, the precursor of the Restatement of Copyright:

The Copyright Principles Project: Selflessness, Valley Style Amongst A Dedicated Group of Likeminded People

 

Letter on “Restatement of Copyright” to American Law Institute from @SenThomTillis @RepBenCline @RepMarthaRoby @RepTedDeutch and Rep. @HarleyRouda A Leading Cause of Pearl Clutching

A group of legislators have written a letter to the American Law Institute asking for an explanation of why the ALI finds it necessary to draft a “Restatement of Copyright Law”.  They have good reason–historically, the Restatement series has been a crystallization of “”black letter law” on common law subjects such as Property, Agency, and other largely judge-made law that evolved from the curia regis in ancient times.

Copyright is not one of those topics–in America it is a creature of statute (Microsoft Corp. v. Grey Computer, 910 F.Supp. 1077, 1084 (D.Md.1995).)  So since the people make the laws of copyright through their representatives in Congress, the Congress is well within their lane to enquire of the ALI what the purpose of the Restatement of Copyright is intended to be.

However, one need look no further than the impetus for the Restatement of Copyright to gain an explanation.  And that explanation reveals that from its inception, the Restatement of Copyright was intended to be a vehicle to make an end run around the people’s house.

And it was an end run by two familiar faces: Professors Pamela Samuelson and Christopher Sprigman.  The real advantage of examining the record on the Restatement project is that you can read the story in their own words.

What we don’t know is who is paying for the cost of the Restatement of Copyright–and that really should be answered, given who is involved and the approach.

Professor Samuelson wrote a letter on September 12, 2013 to Lance Liebman, the director of the American Law Institute pitching the project.  Her letter clearly identifies the project as “reform” and not simply a black letter law project:

ALI should undertake a copyright reform project…that articulates principles that courts, lawyers, and scholars can use without the need for legislation…[and] that would aid additional reform efforts.

And then we have Professor Sprigman’s pitch memo to ALI.   (Sprigman is a Lessig acolyte, represents Spotify against songwriters and who has engaged in fundamental challenges to the Copyright Act that have all failed so far.  ARW readers may recall his unprovoked vulgar tweet storm rants against David Lowery and Blake Morgan.)

I think it’s plain that a Restatement of Copyright…could be enormously influential, both in shaping the law that we have, and, perhaps, the reformed law that in the long term we will almost certainly need….I envision dividing principal responsibility for the subjects I have listed above among four Associate Reporters (I would like to name Profs. Neil Netanel (UCLA), Molly Van Houweling (Berkeley), Tony Reese (UC-Irvine) and Lydia Loren (Lewis & Clark) to these positions).

As Kevin Madigan observed:

It’s not difficult to understand the creative community’s unease when taking a closer look at two of the projects leaders. The Restatement was originally the idea of Pamela Samuelson, a Professor of Law at UC Berkeley who is well known in the copyright academy as someone who has routinely advocated for a narrower scope of copyright protection. And while her knowledge and expertise in the field is unquestionable, her ability to take an objective approach to a project meant to influence important copyright law decisions is suspect.

While Professor Samuelson’s academic record reveals that she may not be the most suitable candidate to spearhead a restatement of copyright law, the project’s Reporters—those responsible for drafting the restatement—are led by Professor Chris Sprigman, whose work in academia and as a practicing attorney should undeniably disqualify him from this highly influential role.

I think it’s fair to say that the rather desperate intention all along has been to use the Restatement to create a self-serving alternative to legislation, perhaps driven by Professor Samuelson’s largely failed testimony before the House Judiciary Committee in the last session. David Lowery took Samuelson to school with a Politico op-ed that was entered into the record of Samuelson’s appearance before the House Judiciary Committee by Chairman Goodlatte.

Naturally, the pearl-clutching commenced in earnest when the Members of Congress sent their letter to the ALI.  Immediately, the Samuelson allies rallied around her to condemn the process without addressing the substance.  But this misses the real issue here that the Members politely left to the subtext.

The potential for astroturfing of the law itself is why the controversy should be of importance.  We don’t know who is paying for the Restatement but we do know who benefits.  Those who wish to advance the interests of the multinational tech companies can run their anti-copyright hustle through the back door by standing up a sympathetic Restatement in addition to spending hundreds of millions on lobbying at the front door.

If the companies doing the astroturfing were Exxon or Aetna instead of Google and Facebook, no one would have to be told twice.  And in a post-Cambridge Analytica world, these members of the professoriate may have backed the wrong horse.

@musictechpolicy: The Restatement Scandal: The Futility of False “Unity”

Who ever thought that the American Law Institute–of all places–would become the center of a corruption scandal over–of all things–its “Restatement of the Law” series.  Chances are good that MTP readers outside of the legal profession have no bloody idea what a “Restatement” is and will sleep well in that knowledge deficit.  But for lawyers (particularly litigators), the Restatement series has had some passing value.

However, there appears to be a trend at the ALI to trade on the “Restatement” series brand value to provide a vehicle through which those who control the pen in drafting both new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be–rather than a tool for practitioners to quickly learn what the “black letter law” is.  This is a way to make an end run around the democratic process.  Why? To deny voters and their elected representatives their proper Constitutional role.  What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen and hiding behind the Restatement brand….

Setting aside the potential corruption (which is a question across the board for the ALI in both the copyright and other restatement debacles), this is a teachable moment.  If anyone in the creative community is approached to participate in these things, do not believe that participation is worth it “to have a seat at the table” or any of the other metaphors for having your name used, abused and ignored in the final work product of whatever it is.  That this process repeats itself is almost as irritating as our lobbyists saying they are “friends” with the other side, that they are “fond” of an opponent.  If our people were in the room when those “fond friends” were discussing them, trust me–these “fond friends” do not return the affection.  They are not your friend and they are not fond of you.  And as Rogers & Hart wrote, unrequited love’s a bore.

Let me be blunt:  They are screwing you, get it?  And to be blunter still–there’s something to that.  These people are not stupid, they can see a sucker stepping up to the thimblerig.

So if you’re going to keep showing up for their tricks, do not cry about it afterwards.  There’s one answer when that call comes in–pass.

Embrace the Apocalypse.  There is no “unity.”  Or you can buy Bitcoin futures from the Winklevoss Twins.

Read the post on MusicTechPolicy

@emzanotti: Power Grab: Is Google Trying to End Copyrights Once and For All?

Google has been on a quest to limit copyright holders’ rights when it comes to the written word, even winning a landmark Supreme Court case declaring that its Google Books program, which digitizes hundreds of [tens of millions] books, was creating “transformative works,” and not infringing on authors’ copyright.

Now, it seems, that Google is making a play for an even greater target: television. And they’ve already stacked the government deck in their favor. What’s at stake here? One of the greatest land-grabs in the history of content. And no one is looking….

Google appears to have already placed friendly officials high places, while using its sway with academics to make its case with the FCC that your cable — and cable’s copyrights — should be free.

Starting in 2016, Google-related appointees began appearing across the Obama Administration. Carla Hayden, who recently took over at the Library of Congress, was President of the American Library Association, a huge recipient of Google funding (largely because of Google’s digital library programs). The Library of Congress, of course, is home to the US Copyright Office, and the Register of Copyrights — America’s highest ranking copryight official.

When the set-top box proposal came to Congress, they of course turned to the US Copyright Office for insight as to whether Google, among other set-top box companies, might be infringing on cable’s copyright.

Google appeared to immediately exert its power. Five copyright academics sent a letter to the US Copyright Office defending set-top boxes, and all five had at least some ties to Google.

Signer Peter Jazsi was a member of Google’s policy fellowship program, an advocate on IP issues, and a founder of the Digital Future Coalition, which includes several organizations funded by Google. Signer Pam Samuelson, a Berkeley School of Information professor, is on the board of several non-profits that receive significant grants from Google. Signer Annemarie Bridy was a scholar at Stanford University’s Center for Internet & Society, whose largest corporate benefactor is Google.

Many of those same groups pushed back when Register of Copyrights Maria Pallante said it was likely set-top devices could infringe on cable companies’ copyrights. One group, Public Knowledge, even claimed Pallante was in the pocket of cable and entertainment interests.

Weirdly, as soon as the new Library of Congress head (Hayden) was sworn in, Pallante lost her job as Register of Copyrights. She was first demoted and then resigned, opening up a space — conveniently — for a friendlier Registrar.

Read the post on Heat Street.