Monday, December 27, 2010

Freedom of Choice (The Copyright Kind)

I’m a lifelong musician and supporter of the arts, online and off.  Music led me to study copyright, which led me to study technology.  The three don’t always play nicely together as anyone who hasn’t had their head completely in the sand for the past fifteen years would acknowledge.  Recently, I attended an alumni event hosted by my undergraduate alma mater, Berklee College of Music.  I spent most of my night discussing copyright law with a fellow alum who works at a rights organization.  I mentioned my legal interests and inevitably we wound up discussing the role of Creative Commons (CC) in the current online ecosystem.  Once he said something along the lines of “Creative Commons is just an arm of Google, and has all the tech companies do their dirty work,” I knew this would be an interesting night.  The rights organizations have an essential role to play, I simply disagree with their litigation choices in a few recent matters and think there are more constructive ways of achieving their goals.1

To begin with, Google donates to CC.  In fact, so do lots of organizations and individuals.  While some of CC’s goals might align with Google’s or any other donor’s, I can’t imagine that CC adopts all of their respective values.   The argument is a good example of “Reductio ad Hitlerum,” a variation on the logical fallacy of Reductio ad Absurdum (those of you with siblings, take note!).  I also reminded him that YouTube is a leader in content identification technology2 and Google recently dedicated more resources to immediately responding to copyright issues.  I want my fellow musicians to get paid too.  A confrontational stance is simply not a constructive way to get there.  So, I tried to shift the conversation into something more productive by discussing a paper I wrote in 2009 about collective licensing possibilities and pointed out that EFF, among others, has advocated for collective licensing and alternative compensation schemes for years.  Also that the position of CC, and others such as EFF, is explicitly and implicitly pro-author.  Isn't that what ASCAP and BMI are supposed to be?

Obviously, not all authors’ interests are the same.  His response: If a creator doesn't enforce their rights, what's the difference if the work is CC-licensed or not?  Well, the difference lies in signaling to end users what can be done with the work.  This overlaps with the orphan works tragedy that Congress hasn't acted on yet, not to mention the rest of 20th century popular culture, locked up because of the “permission culture” we live in.3  In other words, the goal of CC and open licensing models is to reduce transaction costs; “promote the Progress of Science and useful Arts”; give creators a simple way to exercise their rights without hiring an attorney, leading to the thriving open content ecosystem and new business models flourishing online; support consumer participation in the creative process, e.g. “remix culture”; and countless related reasons.  The organization simply enables a choice that is often boiled down to the difference between "all rights reserved," which is the legal default, and "some rights reserved."

After a few minutes of broader discussion of the ways that online communities are formed and business models scale, my companion asked for an example of a situation where a rights organization went after an individual.  Oh boy.  I began by reminding him of common music industry contract provisions that leave the decision to file a lawsuit up to an administrator or agent, with or without the author's permission.  For example, I mentioned the RIAA litigation campaign against individuals (filed by the RIAA on behalf of labels, which have contractual rights to sue on behalf of creators, etc.), countless cases brought by record labels or publishers directly and In re Cellco Partnership (summary, order).  In Cellco, the court rejected ASCAP’s claim that Verizon primarily and secondarily infringed the public performance right, 17 U.S.C. 106(4).4  In addition, even when a ringtone plays in public, the court held that this activity “fits comfortably within the[] statutory exemptions” of 17 U.S.C. 110(4).  Then there’s the obvious point: why chase an individual when a precedent can be set at a much higher level?  I didn’t dwell on the difficulties of discovery, due process or litigation strategy, but he started to get the point that boiling things down to convenient soundbites doesn't go very far with nothing to support your position.

Finally, I brought up the very public (well, Internet public) spat this past summer when a number of ASCAP members were shocked by the baseless allegations in an ASCAP letter to its members that the “Copyleft” is out to undermine their “Copyright” ... so give us money for lobbying.  I’m ok with fundraising and lobbying; this is the good ol’ U-S of A, after all.  I also understand the importance of framing your argument.5  But at least be honest, and at the very least, accurate.  “Copyleft” is a very specific term.  Some of CC’s licenses have copyleft provisions, but not all.  To paraphrase Sun Tzu, “know your enemy.”  Professor Lessig’s response is worth a read.  It points out that CC relies on copyright law to function; undermining copyright law would undermine CC licenses.  He even offered to have a public discussion with ASCAP’s president to discuss the organizations’ differences.  ASCAP's president eventually responded, noting that his “priorities must be focused on songwriting and composing, and those interests that best serve ASCAP's members. Debating you will serve neither of those priorities.” Offering a clearer explanation of ASCAP’s stance and reasons for their fiery rhetoric wouldn’t serve members’ interests?   It’s also hard to see how an invitation for discussion is an effort to silence him.  Especially after similar misinformation was released in 2007, maybe it's time to clear the air.  I couldn't find anything on BMI's site about CC.  More important, I'm not aware of anything that would prevent an ASCAP or BMI-affiliated artist from licensing a work under a CC license, or licensing a work represented by ASCAP/BMI under a CC license.6  Many have.

For ASCAP, perhaps being reminded of the boundaries of their consent decree and having a judge question their litigation strategy will open their stance a bit.  Earlier this year, BMI suffered a similar loss that they recently appealed.  DMX is a background music service that made arrangements with copyright owners to pool their works for inclusion in a blanket music licensing product, similar to what ASCAP and BMI offer.  When DMX sought licenses to include ASCAP and BMI repertoire in their blanket license product, DMX argued that it should be allowed to deduct the fees it already pays directly to copyright owners, rather than double paying for direct-licensed works already in ASCAP or BMI's respective repertoires.  Although the arguments and cases were a bit different, the courts sided with DMX in both disputes.7  

I can’t imagine CC is making too much difference considering ASCAP’s 2008 revenue totaled $933 million ($817 million of which it paid out as royalties).  2009 clocked in at $995 million ($863 million of which it paid out).  BMI's revenue has been steadily increasing over the past few years as well (2004-08 figures, 2009).  We’ll see what the 2010 numbers hold: hopefully more such good news for artists.  Looking at the record label side of the equation shows similar promise, with royalties from digital performance of sound recordings skyrocketing from $6.4 million in 2004 to $155.5 million in 2009.  (I realize that CD sales have been declining for years, but that isn't a performance rights issue and opens a whole other can of worms.)   It just takes time and litigation...

At the end of the day, it's not about ASCAP or BMI.  The rights organizations have been innovating by granting licenses in new areas and finding new income streams, as they must.  With acknowledgment of all the facts and without trying to stretch the law so much, let’s hope that cooperation, competition and experimentation prevail in 2011.  Resorting to litigation or spreading misinformation to demonize the other side merely reinforces the notion that making progress is a zero-sum game.  Let's keep the focus where it should be: making music and making it available, however the copyright owner wants.

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1.  Of course, my new friend wasn't speaking in an official capacity and I'm not out to get him.  Hopefully he walked away from our conversation with a more nuanced and thorough understanding than his positions revealed.   In the interest of full disclosure, I worked as a legal intern at Creative Commons.  I've also worked at the Harry Fox Agency representing music publishers.  As always, the views expressed here are mine alone.

2. Notice that Viacom's pending lawsuit against YouTube only claims infringement based on pre-May 2008 activities.  Although we don’t know which companies, YouTube now reports that “Hundreds of partners are making six figures a year.”

3. A rant and rave about the effectiveness of fair use as a solely ex post determination, and other exceptions and limitations under U.S. or international law will have to wait for another blog post.

4. BMI filed an amicus brief supporting ASCAP's position.

5. For a great history of framing and the (mis)use of rhetoric, check out William Patry’s Moral Panics and the Copyright Wars, especially the discussion of master rhetorician and former MPAA president Jack Valenti.

6.  A look at Creative Commons' most permissive license confirms this view.  See Section 3, which does not grant the licensee the right to publicly perform the work alone.  The licensee can, however, publicly perform its "Adaptations" of the work (Section 3.d.) or publicly perform the work if it's included in a "Collection" (Section 3.c.) which the license defines to exclude the work on its own (Section 1.b.).  The tricky language comes in Section 3.e.iii. which basically states that the licensor cannot collect royalties from a voluntary collective rights organization (e.g. ASCAP or BMI) for those uses of the work by the licensee.  Thus, an ASCAP or BMI-affiliated licensor would still get paid for the public performances of their song collected by ASCAP or BMI, and if their CC-licensed song gets remixed by a licensee and played on the radio, for example, the licensor waived the right to collect further royalties from the remix via ASCAP/BMI.  Of course, this is a choice for an artist to make.  They can also choose a non-commercial CC license and then license the song directly to the remix artist and/or share in the new copyright that arises in the remix.  Derivative works and the definition of "commercial" are another story.

7. ASCAP operates under an antitrust consent decree requiring it to allow members to directly license their works.  They can only receive nonexclusive licenses from composers and publishers to represent their works.  On the other side, ASCAP must grant licenses to any party seeking one.   If a licensee wishes to dispute the rate offered, it may bring a rate court proceeding to determine a reasonable fee.  BMI's decree is separate but similar.  For background on ASCAP’s consent decree, see Broadcast Music, Inc. v. Columbia Broadcast Systems 441 U.S. 1, 12 (1979) – that’s page 12 of the opinion for the non-lawyers.  The case held that blanket music licenses were not categorically forbidden price-fixing under the Sherman Antitrust Act, over a very convincing dissent written by recently-retired Justice John Paul Stevens.  An overview of BMI's consent decree can be found on pages 1 and 3 of its proceeding against DMX

Thursday, December 9, 2010

Notes on the AIPLA's Amicus Brief in Viacom v. YouTube

The AIPLA recently filed an amicus brief in Viacom v. YouTube (hat tip, techdirt).  The case is an important decision on its way to the Second Circuit that agrees with other courts in holding that generalized knowledge of potentially infringing activity is not enough for a service provider to fall outside of the safe harbors established in the DMCA.  The AIPLA brief agrees with this point.  However, it relies primarily on a single paragraph of legislative history in disagreeing with the District's favorable citation to Perfect 10, Inc. v. CCBill LLC I think that the AIPLA's conclusions on this point are unnecessary, contradictory and would lead to speech- and market-suppressing policy outcomes that courts have firmly rejected.

Under Section 512(c)(1)(A), an online service provider loses its "safe harbor" when it has “actual knowledge” of infringing activity, is “aware of facts or circumstances from which infringing activity is apparent,” and “upon obtaining such knowledge or awareness, [does not] act[] expeditiously to remove, or disable access to, the material.”  (I've ignored (c)(1)(B) and (C).)  The difficulty comes in articulating the difference between a generalized knowledge standard, which courts have rejected, and what facts or circumstances might make a provider "aware."

The AIPLA brief accuses the CCBill and YouTube courts of erasing the distinction between the "actual knowledge" and "awareness" prongs by "extending the degree of knowledge required for 'awareness' beyond that established by Congress..." For the "awareness" standard, the DMCA's legislative history refers to "red flags" that might put a service provider on notice, which presumably should prompt the service provider to respond by removing the infringing material.  To me, the AIPLA's position on "red flags" is analogous to the generalized knowledge and similar theories rejected in YouTube, CCBill and UMG Recordings v. Veoh. Those courts note the difficulty of monitoring uploads, irrelevance of fact fights in light of clear law, and more important, that Congress has placed the burden of policing on copyright owners.

I agree with the AIPLA that the "awareness" prong needs clarification but rejecting CCBill is not how to get it.  Confusing things more, the AIPLA also agrees that the awareness prong still requires identification of specific infringements.  How does that not erase the distinction between the two prongs?  The legislative history relied on by the AIPLA to dispute CCBill reads: 

"The important intended objective of this standard is to exclude sophisticated “pirate” directories—which refer Internet users to other selected Internet sites where pirate software, books, movies, and music can be downloaded or transmitted—from the safe harbor.  Such pirate directories refer Internet users to sites that are obviously infringing because they typically use words such as “pirate,” “bootleg,” or slang terms in their uniform resource locator (URL) and header information to make their illegal purpose obvious to the pirate directories and other Internet users. Because the infringing nature of such sites would be apparent from even a brief and casual viewing, safe harbor status for a provider that views such a site and then establishes a link to it would not be appropriate."

Besides the technological and practical irrelevance of that language, written in 1998, the conflict in the brief and tension in the DMCA come from Section 512(m).  512(m) says that service providers do not have a duty to investigate for instances of infringement.  In CCBill, the Ninth Circuit held that even though the defendants provided services to "illegal.net" and "stolencelebritypics.com," they were not "aware of apparent infringing activity."  The court concluded,

"When a website traffics in pictures that are titillating by nature, describing photographs as 'illegal' or 'stolen' may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen. We do not place the burden of determining whether photographs are actually illegal on a service provider."

Consistent with 512(m), and the way that the DMCA places the initial burden on copyright owners to identify specific instances of infringement and notify service providers to take them down, the Ninth Circuit properly refused to shift the initial burdens onto the service providers.  How can it be known, after a "brief and casual viewing," whether or not online content is infringing anyways?  And, what rational service provider, in light of 512(m), would risk their safe harbor status by investigating further?  In YouTube, Judge Stanton quotes Veoh to remind us that “CCBill teaches that if investigation of ‘facts and circumstances’ is required to identify material as infringing, then those facts and circumstances are not ‘red flags.’”

The AIPLA brief goes on to argue that the CCBill standard "elevat[es] the lack of a duty to investigate to such extreme proportions, and adopting such a limited definition of ‘awareness’ that ignores even the explicit red flags identified by Congress… effectively eliminate[s] any viable distinction between ‘awareness’ and ‘actual knowledge.’”   The brief goes on to say that "[a]lthough awareness of specific instances of infringement are required, the service provider may not ignore the obvious[]" without exhibiting willful blindness that might eliminate the safe harbor.  Perhaps the two cases blur the line between "awareness" and "actual knowledge" by failing to articulate clear standards of what facts and circumstances a service provider must be aware of to lose its safe harbor.  However, the AIPLA's acknowledgment of 512(m) is disingenuous in light of their statement that service providers "may not ignore the obvious."  Further, their position is circular: There is no duty for the provider to investigate, unless something is obvious, and specific identification of infringement is still required, but there is no duty for the provider to investigate...  It would also place a burden on service providers that courts and Congress have squarely rejected.

All in all, the way that 512(c) is written suggests that the "awareness" standard wouldn’t even matter so long as the service provider “acts [or responds] expeditiously to remove, or disable access to, the material…"  The outcomes of the cases have confirmed this view.  The CCBill facts provide support for the good ol' law school maxim that bad facts create bad law.  In light of that, we should not allow snippets of legislative history to make bad policy.  As lawyers often note when arguing against examples from legislative history, if Congress wanted triggers like "pirate" or "bootleg" in a domain name to constitute "awareness" that infringing activity is or might be taking place, why didn't they write that into the law?  And what's next, naughty words in usernames or online pseudonyms as proxies for individuals who are or might be repeat infringers?  If you care about free speech, common sense and keeping online commerce humming along, you'll agree that the courts have got it right.

Tuesday, December 7, 2010

Section 508: Hiding in Plain Sight, and Boxes

A 21st Century Copyright Office
Recently, Public Knowledge released a great report titled "A Copyright Office for the 21st Century, Recommendations to the new Register of Copyrights."  After a 16 year tenure as Register, and prior service at the Copyright Office, Marybeth Peters recently announced her retirement at the end of 2010.  The Public Knowledge report provides a list of ten recommendations to the next Register in addition to commentary reflecting their necessity in light of technological revolution and technical possibility, the expanded policy role of the Office, and the legal basis and/or barriers to implementation of most of the suggestions.&

The report provides just enough detail (for my taste!), excellent references and is not too long and technical.  I congratulate the authors on putting together a concise, accessible list of recommendations.  Highly recommended reading for those interested in these issues.  Below, I offer comments on a provision of the Copyright Act that has been hiding in the open since its passage in 1976.  As my research and a conversation with someone at the Copyright Office confirmed, the provision is actually hiding in disorganized boxes in the General Counsel’s office.

Section 508
I want to begin by saying that this post is not an attack on the Copyright Office.  Everyone I've ever spoken to there is extremely nice, very helpful and keenly aware of the Office's (funding) limitations.  Thirty five dollars per registration doesn’t go very far.  However, as a dedicated student of copyright and strong believer in the importance and utility of open access to information about the law, my goal is simply to raise awareness about the lack of implementation of 17 U.S.C. 508, what I’ll call the “public litigation records” provision of the U.S. Copyright Act.  Section 508 requires federal court clerks to notify the Register of Copyrights of the pendency and final disposition of copyright cases, and for the Register to make the records available to the public.  I’ve been able to find a few historical references to the provision.  Unfortunately, nothing points to the type of implementation that would make this information very useful for practitioners, researchers or the general public.

The House Report accompanying the passage of the 1976 Act notes that Section 508 "is intended to establish a method for notifying the Copyright Office and the public of the filing and disposition of copyright cases." (emphasis added).  Soon after the passage of the Act, the Office hinted at interest in the provision.  Federal Register notices in 1978 (43 Fed. Reg. 24,151, June 2, 1978), 1980 and 1986 discuss the provision.  The 1986 notice, signed by then-Register Ralph Oman, states that the cumbersome index card system for tracking Section 508 notices would be discontinued and the Office would receive and retain the documents “until enough have accumulated to fill one reel of microfilm.”  It also notes that at the time, the Office received fewer than five requests per year for access to the information.

Section 508 popped up again in 1993 in the Advisory Committee On Copyright Registration And Deposit (ACCORD) Report.  The Committee formed in response to legislative proposals and requests from Senators to form a public-private committee to analyze registration and deposit requirements.  The report concluded that Section 508 wasn’t working as intended, and suggested putting the onus of filing notifications on plaintiffs, rather than on court clerks.  Some federal courts require, at the time of filing a complaint, completion of a form which the clerk then forwards to the Copyright Office.  For example,  Local Rule 3-1 of the District Court for the Central District of California requires completion of Form AO 121 in copyright cases invoking the court’s jurisdiction under 28 U.S.C. § 1338.

Identical paragraphs in the 2004 (p. 43) and 2005 (p. 59) Copyright Office Annual Reports state that compliance with Section 508 would be studied and electronic filing and other options considered after meeting with the administrative office of the courts.  The 2007 Annual Report discusses a plan to retain the records for three years but does not discuss the stalemate with respect to access.   It references a Federal Register notice scheduled to be published on May 16, 2007, but I could not find anything related around that time period.  Finally, there is no reference in the Compendium II (a manual of the Office’s rules and policies) or in Circular 6, "Obtaining Access to and Copies of Copyright Office Records and Deposits."

The Public Knowledge report details the inadequacies of current public search facilities, so it is not surprising that the availability of the Section 508 records is lacking.  Again, I’m sure everyone at the Copyright Office would like a (much larger) budget to implement these ideas, especially with respect to search and registration.

What the Copyright Office Had to Say
Next, I called the Copyright Office’s general help line.  The representative, as usual, provided a friendly response in noting that he doesn’t think the forms are digitally available.  He transferred me to a gentleman who provided much more detail.  The more senior official emphasized that the Office receives and keeps the forms and they are public records.  He told me they’re kept in boxes in the General Counsel’s office.  According to the official, the records sit in boxes (about four per calendar year), people occasionally look through them, they’re not indexed, he doesn’t think the Office gets all of them and the Office would have no way of knowing the rate of compliance with Section 508's requirements.  I understand the obvious point that manpower and money, as in most areas of human endeavor, are tight constraints on the Office’s ability.  Perhaps I’m letting ideology get in the way of practicality?

In this context,  one can also question whether the Copyright Office should bother worrying about these records in light of the powerful search capabilities in Westlaw or Lexis, for example.  For a recent graduate who no longer has ubiquitous access to these services, I’d like to see a bit more effort from the Office.  And, Section 508 is still the law.  The Copyright Office representative also told me that since the advent of PACER, the Office has considered recommending that Section 508 be dropped out of the law.  The identical paragraphs in the 2004 and 2005 Annual Reports, referenced above, confirm this view: "The Office will use such data [gathered about §508] to determine what changes should be made to this section, including the possibility of permitting electronic filing of §508 notices and the possibility of repealing the requirement."  I didn't think to ask for the data gathered (I suppose I could file a FOIA request), and I wasn’t looking to pick a fight.  So, I didn’t point out that PACER (PAY-CER?) would not, in my opinion, provide an effective substitute in its current form.  He ended by agreeing with me and the few of you in Internet-land actually reading this: the Office wishes they had the resources to improve the situation.

On a related note, the Copyright Office comes under the umbrella of the Library of Congress, which is a rare creature in the federal government hierarchy.  Unlike most agencies which are tied to the executive branch, the Library of Congress is an agency of the legislative branch.  Thus, the Copyright Office isn’t covered by 2009’s Open Government Directive.  

Making these records available would enable analysis of litigation trends without having to rely on paid services.  Making the records available in an open format would allow mark-up with more granular information beyond that required by the law as currently written.  For example, when a law student or practitioner reads a case, they could enter information such as which Section 106 right is at issue, whether international issues are at play, what technology might be involved, the type of copyrighted work, etc. 

Perhaps tweaking the RECAP Firefox extension could make this possible, or public.resource.org's Law.Gov project or Google Scholar could take on the OCR conversion and distribution of these records.  Google, for example, has some experience with Copyright Office records as part of the Google Books project.  As the Copyright Office proceeds into the 21st Century, let’s hope that Section 508, the recommendations of Public Knowledge and the interests of the public are not lost in the shuffle.