Not This Again: Senator Tillis Tries To Slide Dangerous Felony Streaming Bill Into Must Pass Government Funding Bill

from the guys,-we've-done-this-before... dept

We've documented that Senator Thom Tillis is working on a massive copyright reform bill for which he's asked stakeholders for input (we provided some). He's expected to unveil that bill next week (which seems like a suspiciously short turnaround from asking for ideas to actually releasing a bill). Yet, apparently, he decided that he couldn't even wait for that process to play out to try to push forward the latest incarnation of the infamous felony streaming bill which Tillis is pushing to add to the must-approve government spending omnibus bill (similar to how others are trying to add the CASE Act to that bill).

If you don't recall, felony streaming has been a goal of the recording industry for the past decade. Back in 2011, Senator Amy Klobuchar pushed the bill, and even Justin Bieber spoke out against it, noting that he built his entire fanbase by streaming his own covers of songs on YouTube. At the time, Bieber said that rather than locking up people for streaming copyright covered content online, we should lock up Senator Klobuchar for trying to pass such a bill.

Even if you don't trust Justin Bieber's legal analysis of the bill, it might help to read the analysis done by Harvard law professor Jonathan Zittrain, who highlighted just how dangerous a felony streaming law would be -- likely turning millions of individuals into potential felons, should law enforcement suddenly decide to turn on them. The whole idea of making streaming copyright covered works a felony is ridiculous. As it stands now, it can be a misdemeanor, and even that is crazy. Copyright should be a civil issue, not a criminal one. The standards to make it criminal are insanely low -- such that tons of people could face criminal liability for doing things that seem perfectly normal. The threat to free speech (which is the key thing we raised in our comments on Tillis' larger copyright reform) should not be ignored:

“A felony streaming bill would likely be a chill on expression,” said Katharine Trendacosta, associate director of policy and activism with the Electronic Frontier Foundation. “We already see that it’s hard enough in just civil copyright and the DMCA for people to feel comfortable asserting their rights. The chance of a felony would impact both expression and innovation.”

Of course, as the American Prospect article notes, it's not at all difficult to understand why Tillis is trying to shove such a dangerous, anti-free speech bill through an omnibus spending bill, rather than having to debate and defend it through normal process. Because this:

Tillis, the chairman of the Intellectual Property Subcommittee, was recently re-elected for another six-year term by a margin of less than 2% over his Democratic opponent. In the final stretch of his campaign, Tillis received a surge of campaign contributions from PACs affiliated with entertainment companies and trade groups that lobby Congress for aggressive copyright enforcement against internet users, including prison time for unauthorized streaming.

You don't say. How odd. Or, rather, how totally expected, and totally corrupt.

In the third and fourth quarters of 2020, Tillis’ campaign and leadership PAC received donations from PACs affiliated with the Motion Picture Association, Sony Pictures, ASCAP, Universal Music Group, Comcast & NBCUniversal, The Internet and Television Association, Salem Media Group, Warner Music, and others in the entertainment and cable industry that seek to suppress the unauthorized sharing of content. Many other entertainment industry PACs gave Tillis contributions earlier in the 2019-20 cycle, totaling well over $100,000, according to Federal Election Commission records. Executives of Fox Corporation, Sony Entertainment, Charter Communications, and CBS also made large donations to Tillis in the third quarter of this year.

After the Prospect article linked above and quoted here began to get attention, Tillis took to Twitter to push back on it, claiming it's inaccurate, and that his (still unpublished) proposal is "narrowly tailored" such that the DOJ can only use it to "prosecute commercial criminal organizations." Which... is the same argument that was made a decade ago with Klobuchar's similar bill. But it ignores that the standards for what makes a "commercial criminal organization" regarding copyright are insanely low. Under current law, it means that you gain some sort of "commercial advantage or financial gain" in which you reproduce or distribute (or, in this case stream) at least 10 works, "with a retail value of more than $2,500."

Assuming this definition is then applied to streaming as well, all it really means is that if a streamer uses 10 copyright works, within a 180 day period, for which he or she gains some sort of financial gain, they can now be considered "commercial criminal organization." That's... a ton of Twitch and YouTube streamers.

And, either way, if the bill is really nothing to be concerned about, why hasn't Tillis released the text and why is he pushing it into this must pass bill?

Filed Under: christmas tree bill, copyright, criminal copyright, felony streaming, government funding, omnibus, thom tillis

Reform The DMCA? OK, But Only If It's Done Really, Really Carefully

from the running-into-minefields dept

The DMCA is a weird law. It's comprised of two almost completely unrelated provisions: Section 512, with its platform safe harbors, and Section 1201, which forbids circumventing technological measures. Both parts are full of problems, but to the extent that the DMCA provides platforms with liability protection via the safe harbors, it is also a critically important law. We are therefore fans of the DMCA because of this platform protection it provides, but it's like being fans of a terrible actor who had one absolutely fantastic performance in a classic movie we can't stop loving, even though the rest of his work is unwatchable dreck. In other words, we can't pretend the law is without its appeal, but we nevertheless fervently wish it were a whole lot better since we're stuck having to deal with the rest of it.

Which brings us to Senator Tillis, who has expressed interest in reforming the DMCA and already started to lay the groundwork. We dread where this reform effort might go, because we know (see the Copyright Office's 512 study) that many people are championing for the things already terrible about it to be made worse. But at the same time it would be great to fix the terrible things already there so that it could actually become an unequivocally good law that does what copyright law is supposed to do: stimulate expression and promote the spreading of knowledge.

Last month Senator Tillis put out a call for stakeholder input on the reforms he is thinking about, and earlier this week the Copia Institute submitted its response. Instead of answering his specific questions, which all seemed to presume way too much about what allegedly needs fixing in the DMCA, and not necessarily correctly, we made two larger points that need to apply to any reform measures: (1) There needs to be a clear, data-supported understanding of what needs to be fixed and why so that any implemented change actually helps, rather than hurts, creators, and (2) the statute must scrupulously comply with the First Amendment, which unfortunately it currently falls way too short of in way too many ways.

On the latter front we made several points. First, for the DMCA to be First Amendment-compliant, fair use cannot continue to be treated as an afterthought. It is not a minor technicality; it is a fundamental limit on the reach of a copyright and therefore needs to limit the power of what a copyright holder can do to advance that right. Thus, as we wrote in our submission, Section 1201 should no longer obstruct a fair use, and Section 512 should no longer enable the censoring of a fair use either. Protecting fair uses must be a central tenet of any DMCA revision in order to ensure that fair use can remain meaningful in the digital age.

There are also a number of problems that have emerged over the years in the way the Section 512 system operates that have turned it into an impermissible system of prior restraint. Platform protection is hugely critical for fostering online expression, but the irony is that this protection comes at the expense of the very expression it is supposed to foster. The basic problem is that, unlike Section 230, the platform protection the DMCA provides is conditional. But the even bigger problem is that the protection is conditioned on platforms acting against speakers and speech based only on allegations of infringement, even though those allegations may be unfounded. When a law causes speech to be sanctioned before a court has ever adjudicated it to be wrongful it is prior restraint and anathema to the First Amendment. But current judicial interpretations of the DMCA have made Section 512's critical platform protection on just this sort of thing, with dire consequences to speakers and their speech. Reform is therefore needed so that platform protection is no longer contingent on this sort of constitutional violation.

Similarly, we noted that Section 512 also undermines the First Amendment right to anonymous speech, given the operation of Section 512(g) (governing counter-notices) and Section 512(h) (establishing a special type of federal subpoena). But an even more significant constitutional defect with the DMCA overall is with Section 1201. As we've talked about before, Section 1201, and its prohibition against circumventing technical measures, chills security research and innovation and forecloses fair uses. None of these things are constitutionally permissible, and all undermine the overall goal of promoting progress.

Which brings us to our second main point. The whole point of copyright law is to promote progress. And that means encouraging expression so that the public can enjoy the fruits of it. But not every proposed change to the DMCA will lead to that result. In fact, many would do the exact opposite.

The problem is, many of the proposed changes presume that strengthening the power of a copyright holder automatically advances that greater interest. But in reality it doesn't. And we suggested that the reform effort was being sidetracked by a string of misguided assumptions that needed challenging.

First there is the idea that digital technologies are causing economic harm to copyright holders, but it is an idea that should be treated with skepticism. For one thing, it treats the consumption of every "pirated" digital copy as a lost sale. It also ignores that some works are only consumable at a price of $0 and overlooks that copyright holders have historically flourished even when works were available for free, such as in libraries or on over-the-air radio. In other words, the consumption of copyrighted works for free does not automatically equate to economic harm to copyright holders.

And then there is the presumption that copyright holders and creators are one and the same, and thus economic harm to the former means that there's economic harm to the latter. In fact, copyright holders and creators may frequently be entirely different entities – and even stuck being entirely different entities – with entirely different economic interests. Furthermore, advancing the interests of copyright holders may actually be adverse to the interests of creators, with the former potentially wanting to maximize profit from specific works, and the latter potentially more economically advantaged over all if they can develop robust market interest for their works over all.

Next we pointed out that hobbling digital technologies imposes its own economic harm, which should be the last thing for copyright law to encourage. We noted that it is not good that Veoh Networks got financially obliterated by the process of trying to assert its DMCA safe harbor defense (which was ultimately vindicated), because the Section 512 safe harbor provision is so needlessly cumbersome to deploy. It is not good that we now have one less competitor to YouTube and one less outlet available for creators. Nor is it ok that Seeqpod, a search engine dedicated to helping locate creative works, is now no longer available for people to use to find the works of artists they might then choose to support. The loss of these companies, their jobs, their innovation, and their economic energy is a loss that copyright law, including the DMCA, should lament, not exacerbate.

The loss of these platforms also directly harms the economic interests of creators. Here we challenged two assumptions, one, that the economic interests of platforms are somehow in conflict with creators', and two, that creators and platform users are somehow different. In reality creators are platform users. When the DMCA causes platforms facilitating user expression to disappear, or even the expression itself to disappear, those users themselves are creators who are being affected. And that affects their economic interests by depriving them of outlets to promote their works or even directly monetize them. None of these consequences are consistent with what copyright law is intended to accomplish, and any reform effort should make sure to avoid them too.

Filed Under: 1st amendment, copyright, dmca, dmca 1201, dmca 512, fair use, free speech, notice and takedown, prior restraint, thom tillis

Senator Tillis Is Mad That Twitter Won't Testify About Copyright Infringement; Since When Is Twitter A Piracy Problem?

from the weird-all-around dept

After writing about the MPA/RIAA's ever-shifting targets of who to freak out about regarding copyright infringement, it helps to take each new target with a grain of salt. They were mad about Napster, then LimeWire, then YouTube, then cyberlockers/cloud storage. And now, apparently the target is... random social media sites? There's been plenty of attention recently over the RIAA turning its attention to... background music in Twitch streams. But who the hell thinks that Twitter is some den of piracy? Apparently, the recording industry does.

Senator Thom Tillis, who is leading a new effort to completely overhaul copyright law is apparently angry that Twitter chose not to send someone to a hearing he's holding in mid-December.

The letter that Tillis sent to Twitter in response to this decision is way over the top. Unless subpoenaed, appearing before Congress is very much voluntary. People and companies refuse to appear all the time. And even if there was a subpoena, it seems worth noting that it's Tillis' party that has decided that ignoring Congressional subpoenas is just fine and dandy.

But, really, the bigger issue here is why is Twitter even a target at all? No one thinks about Twitter as a source for copyright infringing materials. And Twitter has always been known to be responsive to DMCA takedowns. They have a whole section in their transparency report about copyright takedown notices. That certainly shows that Twitter is very responsive to DMCA notices. It does highlight how it has refused to comply with some notices, but those are in cases where it's clearly abuse of the DMCA for censorship, such as when a bunch of DMCA notices were sent to try to silence critics of the Ecuadorian government.

In fact, if anything, we've often seen Twitter be too responsive to questionable DMCA takedown notices, like the time it pulled down a Trump campaign video (remember, Tillis is a big Trump supporter) over a highly questionable copyright claim.

And yet, here's Tillis trying to make it sound like Twitter is a den of piracy that ignores copyright takedowns.

But Twitter has been less engaged in working with copyright owners on voluntary measures and technological tools, and now has rebuffed my request to testify. The only reasonable conclusion one can draw from your actions is that Twitter simply does not take copyright piracy seriously.

Or, maybe, the nature of Twitter (mostly short bursts of text) is not at all conducive to some RIAA supported show trial about piracy. But it's really in the detailed questions in which Tillis gives away the game. The RIAA wants to force every website that hosts 3rd party content to have to buy a sitewide license. This is what Article 17 was all about in the EU, and Tillis more or less admits it with this question:

I have heard that Twitter has been slow to respond to copyright infringement on its platform and also refused to negotiate licenses or business agreements with music publishers or record labels. In contrast, other major-social media companies have done the right thing and mitigated infringing activity on their platfoms by entering into negotiated license agreements to allow uses of music. Does Twitter seek licenses for the use of music? If so, in what instances? Has Twitter made efforts to negotiate license agreements with music publishers and record labels to ensure songwriters- and artists are compensated?

No one is going to Twitter as a way to get music. If music appears in video snippets on Twitter it's almost entirely incidental. And Twitter has shown that it's absolutely responsive to DMCA notices (see the Trump campaign ad takedown mentioned above). This is entirely about the RIAA trying to get the US government to force every website to just write them a big check every year.

Despite the tremendous value that music brings to Twitter’s business, your platform continues to host and permit rampant infringement of music files on its platform

What? No. That's literally not happening, and music is not providing any significant value to Twitter's business.

Twitter has not taken meaningful steps to address the scale of the problem.

It clearly has taken steps and is incredibly responsive to DMCA notices (sometimes too responsive).

Instead, your company claims that it already goes above and beyond what the law requires. What steps has Twitter taken to ensure no unlicensed music is made available?

This is such a dumb question. It is literally impossible to "ensure no unlicensed music is made available." Of course some will always be because of the broken nature of today's copyright law, nearly everything anyone does involves some form of copying content without a license. In fact, many unlicensed uses of music are legal because of things like fair use or de minimis use. Demanding "no unlicensed music" is not only impossible, it literally is not required by law.

How many takedown notices has Twitter received each year since it launched in 2006?

This is a really bad question as well. This was the key tactic the labels have used against Google/YouTube, using the number of notices received as a proxy for how bad the sites are. But this is a number the labels have control over since they get to send the notices.

There are more questions, but the whole thing is clearly driven by the RIAA's interests to force Twitter into just writing them a giant check every year. I mean, I guess it worked against YouTube and Facebook (where at least there was some argument to be made that music was a bigger deal), so now they've moved on to other sites like Twitch and Twitter. But forcing every website to sign a license is crazy, not required by law, and acting as if the failure to sign a license is some indictment of how Twitter feels about copyright is complete nonsense.

Filed Under: congress, copyright, testimony, thom tillis
Companies: twitter

Senator Tillis Plans Major Copyright Overhaul: Recognizes Legit Problems, But Current Solutions Are Lacking

from the pandora's-box? dept

We've criticized Senator Thom Tillis for his patent and copyright reform ideas that seemed to take a strong "maximalist" line in its approach. He's also taken the Hollywood line on things like the Internet Archive that was troubling. He's been promising a copyright reform bill for a while, and many thought it wasn't going to matter much, since polls indicated that he was very, very likely to lose his re-election campaign in North Carolina (even after his opponent's bizarrely chaste sex scandal made the news). However, Tillis pulled out a surprise victory, and that means that his plan to reform copyright is something worth watching.

Earlier this month, he sent around a a letter to "stakeholders" asking for thoughts on a wide variety of issues related to the DMCA -- which actually suggests that he might be open to some good changes, and not just the terribly awful ones we've been hearing from Hollywood over the last few years. There are still many horrific ideas in the letter, but the fact that so many broad ideas are in there at least (hopefully?) suggests that Tillis' office is willing to look at the entire DMCA structure, and not just pasting on another favor to Hollywood (which had been Congress's traditional approach to copyright law for decades). The letter even states this upfront:

Rather, than tinker around the edges of existing provisions, I believe Congress should reform copyright law’s framework to better encourage the creation of copyrightable works and to protect users and consumers making lawful uses of copyrighted goods and software-enabled products, respectively.

The very fact that it states upfront that the law should protect users and consumers is a surprisingly good start. Many of the questions in the letter could lead to good, bad (or neutral) results depending on how the eventual bill answers the question. One good aspect is that it appears that Tillis is skeptical of DMCA 1201, which is the "anti-circumvention" or "digital locks" provision in the DMCA that says circumventing "technological measures" to lock down content is infringement, even if the circumvention is not done to infringe on anyone's copyright. This has been a mess in practice, and has resulted in fairly widespread abuse of the law to lockdown products and effectively take away ownership rights from buyers. It's also been hell on security researchers who risk tremendous liability for just doing their jobs.

1201 has this incredibly messy "triennial review" process by which the Copyright Office and Librarian of Congress decide to "exempt" certain applied for use-cases from 1201's rules for the next three years. But as we've seen time and time again this whole process is very sketchy and can even lead to rights being taken away at a later date. Also, frankly, if your law needs a review with new exemptions every 3 years, that seems to suggest the law is the problem. Tillis' questions seem to recognize some of the problems with 1201 and the triennial review process:

Section 1201 currently allows for temporary exemptions to be granted from the circumvention prohibition, but those exemptions do not extend to third-party assistance. This means that when the Librarian of Congress grants an exemption for circumvention of technological protection measures (TPMs) over software for a tractor to allow for repair, the tractor owner must perform the software repair themselves. The Copyright Office has recommended amending the statute to grant the Librarian authority to adopt temporary exemptions permitting third-party assistance “at the direction of” an intended user, and this may be the right way to address this problem. Do you agree with the Copyright Office? If so, how should this provision be drafted to avoid unintended consequences, and to what extent is the Unlocking Consumer Choice and Wireless Competition Act a helpful model? If not, please explain why you do not agree and provide specific recommendations as to how you think this problem should be addressed?

The Copyright Office has recommended revising some of the permanent exemptions so that they are better tailored to the types of uses sought today. In particular, the exemptions for security testing and encryption research should be revised to expand the types of activities permitted, ease the requirements to seek authorization from the owner of the relevant system or technology, and eliminate or clarify the multifactor tests for eligibility. What thoughts do you have about revising these existing permanent exemptions, and how would you recommend that be done?

Congress should adopt new permanent exemptions for noninfringing activities that have repeatedly received exemptions in recent triennial rulemakings, or where there is a particularly broad-based need, including to enable blind or visually impaired persons to utilize assistive technologies and to allow diagnosis, repair, or maintenance of a computer program, including to circumvent obsolete access controls. What other temporary exemptions should be made permanent?

There are various ways that the triennial rulemaking process could be streamlined to be more efficient and so that section 1201 better accounts for user concerns. These include establishing presumptive renewal of exemptions adopted in the previous rulemaking cycle, shifting the burden to those who want to oppose an exemption from the previous rulemaking, and authorizing the Librarian, upon recommendation of the Register, to make permanent a temporary exemption that has been renewed twice without opposition and without modification. How ought section 1201 be revised to reflect the stakeholder desire for a less burdensome triennial rulemaking process and consumer interests, and what other means should be adopted to make the rulemaking process more efficient?

It's good that Tillis recognizes the problems of the triennial review, though I wish that the office was more open to the fact that all of 1201 is outdated and not useful (and open to widespread abuse). Rather than just looking at fixing the triennial review process, it would be even nicer if Tillis was open to just dumping 1201 altogether. He noted in the opening that he's not interested in tinkering around the edges -- but many of these questions indicate that is what's happening. A real review would question the entire premise of 1201 itself. Is it actually needed? Is it useful? Is it promoting the progress of knowledge? Or is it simply a tool for taking away user rights and harming innovation?

Most of the rest of the questions focus on the more well known parts of the DMCA, Section 512, which is the "notice-and-takedown" part of the DMCA, or the "safe harbor" part. 512 has always been problematic, and there's a long history of it being abused for massive censorship. I still think there's a decently strong argument that 512 itself violates the 1st Amendment, in that it uses state pressure to remove 1st Amendment protected content.

Tillis seems to recognize that 512 is outdated, but it's a very mixed bag in how outdated it is. Some of his suggestions are very much needed, but a few suggest he's considering making 512 even worse and even more censorial. Again, starting with the positive, the letter recognizes that 512's classifications of service providers is weird and no longer in-step with reality. Currently it has different rules for conduits, caching services, hosting services, and location tools. But in many 512 cases, it's not always clear which category sites fit into, and it's not always clear how the different rules apply to different types of services. Clarification on that would certainly be useful -- though, again, what that clarification looks like will matter a lot.

OSPs eligible for the safe harbor under section 512 are divided into four categories (conduits, caching services, hosting services, and web location tools) that can be both under-inclusive and over-inclusive. First, what types of OSPs should be covered to account for technological advances and business practice changes that have occurred during the past twenty-two years? Second, how should the categories be revised to better cover the types of OSPs that need—rather than just appreciate—the safe harbor’s benefit? Among the possibilities would be to either increase the number of statutory categories to more explicitly cover specific types of service providers or to reduce the number of statutory categories, possibly to only one, and delegate authority to the Copyright Office to identify, by regulation, the covered types of service providers. If Congress were to take the latter approach, would this raise concerns about such authority being delegated to a non-presidentially-appointed Register?

Of course, neither suggested approach seems likely to be that useful. Simply increasing the categories is going to lead to the same problem down the road (and could impact future innovations as companies "choose" which category to go into). And having the Copyright Office pick and choose would also be a disaster (and arguably unconstitutional). A better approach would be to go in the other direction, and stop trying to fully distinguish types of services but to focus on types of uses. Indeed, the best fix to the 512 safe harbors is actually to align it with Section 230's immunities. That is, rather than put in place a series of specific conditions you have to meet to "earn" the protections (which has been a mess in practice), just set up an immunity that makes it clear that service providers are not liable for the actions of their users. Simplify the situation and let innovation bloom.

Another potentially good thing in the questions is that Tillis recognizes the counternotice situation for many users is not good, and is leading to non-infringing works that are being taken down remaining down because users do not wish to poke the bear. A counternotice under existing law is effectively daring the copyright holder to sue. And even if you believe strongly that your use is non-infringing, going through a federal lawsuit to prove that would bankrupt many people. That's correct, though Tillis' proposed solution of a "small claims" court creates many other problems that we've discussed in the past. There needs to be a better way, but the small claims proposals we've seen to date will lead to more trolling.

The questions also recognize problems in automated takedowns, and potential privacy issues with notice-and-counternotice situations (in which abusive individuals file bogus notices in order to try to dox someone by receiving their counternotice, including contact info). Again, it's good to recognize these problems, even if the suggested solutions leave much to be desired.

It is clear from the record established across my hearings that one major shortcoming of section 512 is that users who have had their content removed may decide to not file a counter-notice because they fear subjecting themselves to federal litigation if the copyright owner objects to the putback. At the same time, the requirement that a copyright owner pursue federal litigation to keep a user from having content put back up following a counter-notice is a heavy burden. Congress might consider improving dispute resolution by directing disputes between notice and counter-notice filers to a small claims court rather than federal court. What is the best way to accomplish this? Would the copyright small claims court as envisioned by the CASE Act be the proper forum? If not, how should such a tribunal be designed? Related, what should be the time period for putbacks? There is broad agreement that the current 10-14 day window works poorly for both copyright owners and users. How would you amend this?

More generally, the notice- and counter-notice sending process have many shortcomings. These could be improved by clarifying when automation is appropriate and that OSPs cannot erect requirements beyond those in section 512(c)(3); by authorizing the Copyright Office to develop standardized web forms for notices and counter-notices and to set regulations for the communications that OSPs must deliver to a user when their content is taken down or had access disabled (including offering information about the fair use doctrine as codified in section 107 and as illustrated in the Copyright Office’s Fair Use Index); and by increasing privacy protections for notice and counter-notice senders by masking certain personally identifiable information, including address and phone number. How could this best be done? Please provide specific provisions for accomplishing these

Tillis also seems to recognize that one of the big problems of copyright law has long been the fact that it was designed in an era when the only real infringement and copying was done for commercial reasons, and that we've moved to an era when we all have super powerful copying machines in front of us (and in our pockets) all the time -- and that every single person with a computing device likely incidentally infringes thousands of times per day, based on a strict reading of the law. There's also the fact that copyright law treats a website run by a single user the same as a giant company like Google or Facebook. Tillis' suggested approach to dealing with this is to classify service providers by different markets or sizes:

The record established in my DMCA reform hearings indicated that an overarching principle of any reform should be making digital copyright less one-size-fits-all. The law needs to account for the fact that small copyright owners and small online services providers (OSPs) may have more in common with each other than they do with big copyright owners and big OSPs, respectively. Accordingly, I think we should consider whether copyright law should be revised to account for such differences among stakeholders. In particular, could copyright law borrow from employment law, or other relevant fields, to establish different thresholds for copyright owners and OSPs of different size, market share, or other relevant metric? If so, what is the best way to accomplish this? Is there a particular area of law, or existing section of the U.S. Code, that provides crucial guidance? As with all questions where it is relevant, please include in your response specific recommended legislative

Similar to the other questions mentioned, he's actually looking at the right issue, but approaching it with the wrong solution. This approach is almost certain to lead to weird incentives, potential regulatory capture to design specific rules, and a significant amount of gaming, as companies employ copyright lawyers to figure out how to stretch and twist around the rules' definitions to comply with the law as a technicality, but not in spirit. We've seen enough of that, and it leads to wacky scenarios like Aereo, in which a technically insane setup is put in place in the belief that it has to be built that way to comply with copyright law (even if the Supreme Court then stepped in with its weird "looks like a duck" precedent that made a mess of things).

Again, rather than trying to just craft a bunch of specific rules that will be gamed, shouldn't the focus be on setting an appropriate rules that actually makes sense across the board?

Where the Tillis questions get much more problematic is the suggestion that we should import some very dangerous, censorial and likely unconstitutional ideas like "notice-and-staydown" and full site blocking.

Section 512 places the burden on copyright owners to identify infringing materials and affirmatively ask the OSP to remove the material or disable access to it. This burden appears to strike the correct balance, but the burden that the notice-and-takedown system itself places on copyright owners is too heavy; the system is also woefully inefficient for both copyright owners and service providers. I believe U.S. copyright law should move towards some type of a notice-and-staydown system—in other words, once a copyright owner notifies a service provider that a use of a copyrighted work is infringing, the service provider must, without further prompting, remove subsequent infringing uses absent a statement from the user (whether the copyright owner or not) that they believe the use is licensed or otherwise authorized by law (e.g., fair use). What are your thoughts on such a system, and how could it best be implemented?

The injunctions available under section 512(j) have been narrowly interpreted by courts and thus little-used by copyright owners. Is it worthwhile for Congress to consider revising this provision to make injunctions more readily available for website-blocking in special circumstances (with an eye toward article 8(3) of the Information Society Directive)? Such injunctions could be issued by a special tribunal and appealed to federal district court, or, out of concern for user protections, the law could require that injunction orders come from the district court alone. If warranted, what would be the best way to enact limited website-blocking via such injunctions? Again, please provide suggested legislative text. If you do not think the law should be amended to expand the availability of injunctions, please be specific about any ways you think section 512(j) could be improved.

Yikes on both of these. Notice-and-staydown is a horrifically bad idea. We're already dealing with a situation in which the notice-and-takedown process is regularly and consistently filed for non-infringing reasons, with an effort to suppress or silence speech. Notice-and-staydown would make that problem much worse.

Furthermore, notice-and-staydown ignores the fact that it's not the content that is infringing, but the use. That is, the very same content may be infringing in some use cases, but not in others. The very same content could be fair use in certain contexts, but not in others. Notice-and-staydown ignores that.

Site blocking has massive 1st Amendment implications as well. Taking down an entire site because of some infringing material would violate the general principle as set by the Supreme Court that any regulation impacting speech must be narrowly tailored to only impact speech that is not protected by the 1st Amendment. Full site blocking does not do that.

There are other big reform ideas that seem to be missing entirely. A full (non-tinkering on the edges) reform bill should look at issues like false takedowns, copyright terms, digital 1st sale rights, and statutory damages. But those don't appear to be mentioned. There is one question that touches on the fact that a ton of takedown notices are bogus, but only loosely:

At the same time that Congress should revise section 512 to ensure that infringing material stays down once identified, it should also discourage the over-sending of notices as a counter-balance to the more significant action that an OSP must take after receiving a notice. This could be done, for example, by heightening the requirements for accuracy in notice sending, possibly with stricter requirements and heavier penalties. As noted above, the standard may be more lenient for small entities and individuals. How might the requirements be heightened in a meaningful way while not unduly burdening copyright owners trying to protect their work against infringement?

It seems odd that they don't even name the totally toothless 512(f) in this section, even though other questions focus on specific parts of the law. The idea that stronger penalties for false notices would "unduly burden copyright holders" is kind of laughable when you look at the current "balance" in copyright law, in which purely incidental infringement of a single thing could bankrupt most Americans.

In the end, while there are a bunch of bad ideas presented in the questions, I'm still somewhat pleasantly surprised that many of the questions raised indicate an awareness of the actual problems in current copyright law. That's better than we've seen in the past. That said, most of the proposed "solutions" will not help and may make things worse.

That is why it's important for people to weigh in with thoughtful ideas on how to actually fix copyright law. That said, there's an insanely short time frame for this. The letter asks for any comments to be sent in by December 1st (next week!) and says that Tillis intends to release a draft bill by December 18th. That seems like an astoundingly short time frame (1) for people to organize and submit their ideas and (2) for Tillis' staff to incorporate them into legislative text.

There's still a very strong chance that the bill that Tillis proposes will be a dangerous disaster towards free speech and innovation online. Certainly, some of the questions strongly hint at that. However, the very fact that the questions also indicate at least some legitimate recognition of the problems of today's copyright law is nice to see. Hopefully, Tillis and his staff recognize that the answers to these problems is not to make copyright law even more draconian, but to recognize that there are better solutions.

Filed Under: abusive takedowns, copyright, copyright reform, dmca, dmca 1201, dmca 512, dmca reform, free speech, innovation, notice and staydown, takedown notices, takedowns, thom tillis, triennial review

Senator Thom Tillis Seems Really Pissed Off That The Internet Archive Bought A Record Store To Make Rare Recordings Accessible

from the what-kind-of-monster...? dept

Senator Thom Tillis (or perhaps some staffer in his office who is desperate for a job as a legacy copyright industry lobbyist in his next job) really seems to have it in for the Internet Archive. Beyond trying to rewrite copyright law to make it favor the legacy players even more than it already does, and beyond telling copyright experts that they shouldn't even dare think of commenting on the state of copyright law today, Tillis really seems to have an infatuation with the Internet Archive wanting to help people by providing them information. I don't know what the library ever did to Tillis as a child, but as a Senator he sure seems to hate the very concept. He sent one very confused, misinformed, and angry letter to the Internet Archive over its National Emergency Library, and now he's sent another one after news broke that the Archive had purchased the distressed, but famed, Bop Street Records in Seattle.

When the news originally broke that the Archive had purchased Bop Street, most portrayed it as great news. The owner, Dave Vorhees, had decided to shut down the shop a month earlier, and he wasn't sure if he'd be able to sell off the 500,000 recordings the store held. So people were excited that the Archive stepped in -- and did so not with plans to lock up and hide the collection, but to find the gems that could be made available and do so:

Kahle has a particular interest in obscure recordings, he said. “High school marching bands, soundtracks for foreign movies you’ve never heard of — those are just treasures.”

The diversity and quality of the Bop Street inventory, which includes more than 100 albums by jazz pianist Fats Waller as well as a healthy selection of classical music, rock, R&B, jazz, country and other musical genres, was exactly the kind of thing the Internet Archive is on the lookout for, Kahle said.

If you can't tell, Brewster Kahle has the mind of someone looking to preserve and share culture.

Thom Tillis, on the other hand, has the mind of someone who thinks that culture must be locked up:

According to a May 15, 2020 article in the Seattle Times, the Internet Archive has purchased Bop Street Records full collection of 500,000 sound recordings with the “inten[t] to digitize the recordings and put them online, where they can be streamed for free.” It is not clear from the article, or others, if you intend to digitize all of the sound recordings acquired from Bop Street. But it is clear that these sound recordings were very recently for sale in a commercial record shop and likely contain many sound recordings that retain significant commercial value. This raises serious alarms about copyright infringement.

As I understand, Bop Street Records, which the Wall Street Journal once deemed a top-five record shop in the country, focuses on collectible-quality vinyl records across a diverse range of musical genres. According to its website, there sound recordings includes “Rock, Soul/R&B, Jazz, Blues, Classical, Country, World and many other genres from the 1920’s to 1990’s.” The overwhelming majority-if not all-of these sound recordings are protected by U.S. copyright law, and thus may not be digitized and streamed or downloaded without authorization.

In a similar vein, I am aware of the Internet Archive’s “Great 78 Project,” which has already digitized-and continues to digitize daily-a vast trove of 78 rpm recordings, many of which are also commercially valuable recordings already in the marketplace, and has made those recordings available to the public for free through unlimited streaming and download. I understand that the Internet Archive is framing this and its other sound recording projects--which include both obscure gems for music fans and hits from the likes of Elvis Presley, Chuck Berry, and Johnny Cash-as preservation, but your current practices raise numerous potential issues of copyright infringement. The Bop Street collection is likely to add to that. Among other things, your sound recording projects do not appear to comply with the relevant provisions of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA), which deals only with pre-1972 sound recordings and would not allow for streaming or downloading. Moreover, there are additional copyrights, such as the musical composition and the album artwork, that are displayed on the Internet Archive website and would not be covered by an exception for preservation.

The inclusion of the Great 78 Project here just seems to be a gratuitous anti-culture attack by Tillis for no goddam reason other than he is against the preservation of cultural artifacts. The Great 78 Project has been out for a few years now, and it's a project that was put together not just by the Internet Archive, but in collaboration with the Archive of Contemporary Music and George Blood LP. The project is a recognition that tons of old 78rpm records are the only copies of that music ever recorded and my grandparents were the last generation to have easy access to a 78 rpm record player. The archival of those records falls into a murky space in copyright law because, thanks to insane copyright term extension. You can be pretty damn sure that anything on a 78rpm record, when it was recorded, was recorded with the clear understanding that by 2020, it would be in the public domain. The fact that some might not be isn't a condemnation of the Great 78 Project, but of Congress for destroying culture in this manner.

Now, someone who was actually, say, an elected official representing the public and who took an oath to protect and defend the Constitution, including the clause that pretty directly states that the purpose of copyright law is to "promote the progress," might look at that last paragraph and say, quite obviously, that if a jumble of messed up copyright laws are getting in the way of preserving music that no one can listen to, and of making it widely available -- or that merely posting album artwork is somehow against the law -- that maybe the law is pretty damn messed up, and that Congress -- or even the Senate Intellectual Subcommittee, of which Thom Tillis is the chair -- would want to fix those obviously broken laws.

But, nope. To Tillis it's an opportunity to attack a library that has stepped up to save a massive collection of rare items, and to give them a new life. To someone of Tillis' point of view -- that seems to merely be an unfiltered, unthinking conduit for some giant Hollywood interests -- this kind of public good must be stopped.

Filed Under: 78 rpms, archives, great 78s, libraries, old records, preserving culture, thom tillis
Companies: bop street records, internet archive

Senator Tillis Angry At The Internet Archive For Helping People Read During A Pandemic; Archive Explains Why That's Wrong

from the that's-not-how-any-of-this-works dept

A few weeks ago, we wrote about the misguided freakout by (mainly) publishers and some authors over the Internet Archive's decision to launch the National Emergency Library during the COVID-19 pandemic, to help all of us who are stuck at home be able to digitally access books that remain in locked libraries around the country. A key point I made in that post: most (not all, but most) of the criticisms applied to the NEL project could equally apply to regular libraries. And perhaps that's why hundreds of libraries have come out in support of the project, even as those attacking the project insist that it's not an attack on libraries.

Either way, it was only a matter of time before publishers got their lapdogs in Congress to start making noise, and first out of the gate was Senator Thom Tillis, who is already deep into his attempt to make copyright law worse, and who last week sent a letter to the Internet Archive's Brewster Kahle that reads very much like it was written by book publishers. First it gets high and mighty about how the pandemic has "shown the critical value of copyrighted works to the public interest" which is just a weird way to phrase things. The fact that something valuable is covered by copyright does not automatically mean that copyright is helpful or valuable for that situation. Then it gets to the point:

I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.

A few days later, Kahle responded in a detailed and thorough letter to Tillis. It points out that the Internet Archive is well-established and recognized by the state of California as a library, and that it has already shown that it has a legal right to digitize books. And then goes on to explain that the point of the NEL is to help enable Tillis' own constituents to access to the books that their tax dollars paid for while they're locked up collecting dust inside libraries that are closed during the pandemic.

The National Emergency Library was developed to address a temporary and significant need in our communities — for the first time in our nation’s history, the entire physical library system is offline and unavailable. Your constituents have paid for millions of books they currently cannot access. According to National Public Library survey data from 2018-2019, North Carolina’s public libraries house more than fifteen million print book volumes in three-hundred twenty-three branches across the State. Because those branches are now closed and their books are unavailable, the massive public investment paid for by tax-paying citizens is unavailable to the very people who funded it. This also goes for public school libraries and academic libraries at community colleges, public colleges and universities as well. The National Emergency Library was envisioned to meet this challenge of providing digital access to print materials, helping teachers, students and communities gain access to books while their schools and libraries are closed.

It also highlights something else that many had missed: the NEL does not include any books published within the last five years -- which is pretty important, since the commercial value of a book usually exists in the first couple years after publishing. Indeed, a recent study highlighted how the vast, vast, vast majority of sales tends to come soon after a book is published and then sales decline rapidly. So the argument that the NEL is somehow taking away from author income is already somewhat questionable.

And, indeed, the Archive is currently seeing evidence that suggests the NEL is not actually impacting author earnings in any significant way:

In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.

The Internet Archive has also been highlighting case studies of teachers and students helped out by the NEL.

Kahle also explains to Tillis how he's wrong to say that copyright law does not allow this kind of lending. It's called fair use.

You raise the question of how this comports with copyright law. Fortunately, we do not need an “emergency copyright act” because the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances. As a result, libraries can and are meeting the needs of their patrons during this crisis in a variety of ways. The Authors Guild, the leading critic of the National Emergency Library, has been incorrect in their assessment of the scope and flexibility of the fair use doctrine in the past and this is another instance where we respectfully disagree.

The reference regarding the Authors Guild being wrong about fair use refers to its years-long fight to stop libraries from digitizing books, which resulted in a massive loss for the Guild's ridiculous interpretation of copyright and fair use.

In the end there are a bunch of important points here: even if Tillis is right that copyright is somehow proving its value in a pandemic (and he's not), that doesn't change the simple fact that this library is enabling people who cannot check out physical books from their locked community libraries to at least be able to access those books while remaining safe at home. The Internet Archive has legal scans of these books, and hundreds of libraries are supporting this effort. While it's true, as some authors and publishers highlight, that there are official ebooks for some books, many (especially older) books do not have them at all -- and those include lots of books that are commonly read in classrooms. And, as we pointed out last time, in cases where there are official ebooks, almost anyone would prefer to get those copies, because they are much easier to read and designed to be read on a reading device (specialized reading device, tablet, or phone) as compared to the NEL scans, which are straight scans of the book pages.

No matter what, it's a really bad look for Tillis to stomp around complaining that his constituents might actually be able to read books that are currently locked up in libraries. Remember that the entire intent of copyright law in the first place, and the subtitle of the US's very first copyright law, was that it be to enable learning. The Internet Archive is trying to help push forward that clear goal of copyright law... while Senator Tillis seems to want to stop it.

In the end, there's very little "there" there to the complaints about this project. It's difficult to see how it's harming author revenue in any real way, but it is clearly helping schools and students while the libraries and books they normally use are unavailable. And, there are strong arguments for why this is perfectly legal under copyright law -- and if the claim is that we should wait until that's absolutely proven in court, well, that kinda misses the whole point of helping out during a pandemic.

As professor Brian Frye recently wrote about all of this: "When you find yourself complaining about libraries, you might want to think twice about your priorities." And I'd say that counts double in the midst of a pandemic.

Filed Under: brewster kahle, copyright, covid-19, fair use, libraries, national emergency library, pandemic, thom tillis
Companies: authors guild, internet archive

As Congress Explore New Awful Copyright Plans, Maximalists Look To Rewrite The History Of SOPA/PIPA

from the say-what-now? dept

As we noted, there's an effort underway, lead by Senator Thom Tillis' office, to rewrite copyright laws in a manner that is even "friendlier" to Hollywood -- which is kind of insane, given just how far the laws have been bent to favor Hollywood over the years, and against the public. Of course, for the past decade or so, significant updates to copyright law have mostly been a kind of third rail issue in Congress (with a few notable exceptions), as the memory of the SOPA/PIPA protests still lingers. However, with this new approach brewing, it seems that some wish to rewrite that history.

Gene Quinn from IP Watchdog -- a site that tends to support an extreme maximalist viewpoint mostly on patents, but sometimes on copyright as well -- has an amazingly weird post, supporting a more maximalist copyright reform, playing off a new paper from ITIF. If you don't recall, ITIF wrote the original paper that became SOPA. It was that think tank's policy proposal that was molded into the awful bill that would have fundamentally changed how the internet worked. So, you should already be somewhat skeptical of ITIF's "policy recommendations" on copyright -- starting with the very idea that "digital piracy" is a "scourge" that requires laws to stop.

As we've shown in great detail using the industry's own "piracy" numbers, changes to the law to ratchet up copyright enforcement have failed to decrease piracy. What does decrease piracy is putting in place laws that enable more innovation and experimentation around new licensed services with a variety of business models.

But, not surprisingly, that's not the focus of any reform effort. Still, what's most amazing in Quinn's piece is his rather insane attempt to rewrite the history of SOPA/PIPA. If you weren't around when it happened nearly a decade ago, (Gene was, so he has no excuse), a wide coalition of people all got together to point out how dangerous the law would be for a functioning internet, and how it would stifle speech, harm innovation, and (worst of all) break certain technical elements being used to make the internet more secure -- all so Hollywood could continue to tilt at windmills and pretend that "piracy" was being attacked. As more and more people (with very diverse ideological backgrounds) all came to realize how dangerous SOPA/PIPA was, they organized a day of protest on the internet, which set phones ringing throughout Congress, urging elected officials to rethink that plan. One by one, Senators and Representatives dropped their support of the bill, and it never moved forward.

That's not how Gene Quinn describes it however. In his version "hacker groups" (?!?) threatened to shut down the internet (?!?!?!?!?) if SOPA passed:

About a decade ago, Congress was poised to do something about rampant copyright infringement on the Internet. They were ready to take a bold step that would protect content creators. These bills were met with threats from hacker groups to take down the Internet if they were enacted, and Congress caved.

Again, that's not even remotely accurate. It was pointed out that implementing SOPA/PIPA would have made the internet less secure by breaking the DNS system, and that could lead to more attacks, but that's... not what Quinn is saying. And of course, when he presents something so blatantly incorrect, and so devoid of historical accuracy, it should make you call into question basically everything else he's saying regarding this particular topic.

Filed Under: congress, gene quinn, pipa, rewriting history, safe harbors, sopa, thom tillis

Senator Thom Tillis Pushed Awful Patent Reform Idea Last Year; Now Looks To Top It With Awful Copyright Reform This Year

from the dude,-seriously? dept

Last year, Senator Thom Tillis was pushing a completely ridiculous patent reform bill that would have enabled massive patent trolling, by expanding what would count as patent-eligible subject matter. After his bill was released -- and basically everyone who wasn't a patent troll explained what a disaster it would be for American innovation, Tillis quietly let the matter drop.

Given that experience, you might think that Tillis would think twice before stepping into the even more fraught arena of copyright reform. And yet, Tillis has been champing at the bit to change the DMCA to make Hollywood happier with it. Now, there are lots of complaints to be made about the DMCA. Section 512 enables blatant censorship and puts tremendous pressure on platforms to take down non-infringing content. It also favors larger platforms which can deal with a barrage of takedowns over smaller upstarts. Section 1201 of the DMCA is utter garbage and makes it "infringing" to merely talk about ways to remove DRM -- even if the underlying reason for doing so is non-infringing. There are obvious ways to fix both of those.

But, instead, Tillis and his staff seem ultra focused on making Section 512 worse and importing awful ideas like the EU Copyright Directive, which forces platforms into being Hollywood's personal police, and bringing in dangerous, censorial ideas like "notice and staydown," which would require expensive and unreliable internet filters. While he's made some nod towards perhaps making a few cosmetic changes to 1201 as a "trade" for making 512 that much worse, the overall impact of what's being discussed would be terrible. 1201 would remain in some form, and what few exceptions would be made would be minimal in impact. But bringing in things like "notice and staydown" for 512 would inevitably lead to much more censorship.

It's unclear why Tillis is rushing headlong into this debate, when it seems that neither he nor his staffers grasp the details of how copyright works. Given how silly and uninformed Tillis came out of last year's attempt to pass a patent bill, it's bizarre that his office hasn't bothered to be more careful on the copyright front before leaping into that arena.

Filed Under: copyright, copyright reform, dmca, dmca 1201, dmca 512, eu copyright directive, notice and staydown, notice and takedown, patent reform, patents, thom tillis

Why Are Members Of Congress Telling A Private Organization Not To Comment On Copyright Law?

from the seems-sketchy dept

For the past few years, there's been a really bizarre "fight" going on in the copyright world. I had considered writing about it nearly two years ago when it first seemed to flare up, but I had hoped that facts and cooler heads might prevail. Silly me.

This involves a few issues that are fairly deep in the weeds if you're not a lawyer, so I'll try to provide a quick overview of what's happening for non-lawyers. The American Law Institute (ALI) is a non-profit organization which states its mission is to help to "clarify, modernize and otherwise improve the law." Its most well known products are the so-called "Restatements" of various laws. Restatements are, generally speaking, attempts to provide significant additional annotations on the law, based on caselaw. That is, it's a very useful tool for courts to understand how various aspects of the written law have been interpreted by judges before them. They are scholarly works, put together by bringing together large groups of legal experts in a field to work out a very balanced review of how courts have interpreted the law.

Seeing as these are merely effectively annotations on the law, they are, in no way, binding on a court. Instead, they are designed to be useful in helping judges understand the current state of the law. A few years back, ALI decided to put together a Restatement of Copyright Law. It's been a long, slow process. To put it together, ALI has brought together a large and diverse group of copyright lawyers, practitioners, and scholars representing pretty much all sides of the various copyright debates. If you were planning to release a document that was one-sided and "biased" this is not the way you would do that.

Among the people working on the Restatement there are some of the most famous names in copyright scholarship -- many of whom historically have supported a more maximalist interpretation, including David Nimmer, and Jane Ginsburg. Others working on this with a long history of copyright maximalism, include former Copyright Office General Counsels Jacqueline Charlesworth and Sy Damle. You have a bunch of current and former RIAA and MPAA folks, including former RIAA lobbyist and current federal judge Beryl Howell. There's also Michael Fricklas, former General Counsel of Viacom, Michael Kane from Disney, former Warner Bros. and MPAA VP Dean Marks, former RIAA General Counsel Steven Marks, current Senior VP and Associate General Counsel at the MPAA Ben Sheffner, and also Shira Perlmutter, a well known maximalist currently at the USPTO, but previously at the Copyright Office, IFPI, and Time Warner.

In short, there are very few of the big names in copyright maximalism I can think of who aren't among the team tasked with this process.

But it also includes plenty of people with more enlightened views on copyright -- those who recognize that copyright was supposed to be designed to benefit the public first and foremost. Basically, it's a pretty balanced list. In the years since the Restatement has been announced, it's appeared that it's this very balance of those working on the Restatement that has so upset the maximalists. As a whole, they've basically been getting their way with their interpretation and ever-growing expansion of copyright law. Over and over and over again. The idea that anyone who actually recognizes the original intent of copyright law might even weigh in on helping to explain to judges what courts have said is worrisome to them. This is silly. The point of the Restatement is to explain what courts have said. Restatements don't say what the law should be or what anyone hopes it should be. It's very much about highlighting what the caselaw says.

Two years ago, the Copyright Office put out a letter whining about the Restatement process, (despite so many people related to the Copyright Office being on the team putting together the Restatement). At the time, I spoke to someone else on the team who told me that the whole thing was purely a "turf battle," in which the Copyright Office wants the courts to look to it for legal interpretations (generally not something the courts have done), so this is seen as a "competitive" effort. But the bigger issue, honestly, seems to be one factor and one factor only: Hollywood and its friends decided long ago that the public interest has no business in copyright. And this Restatement process even acknowledging those who have worked to remind people that copyright is supposed to be in the public interest is seen as a threat to their views.

But here's where things get insane. The lobbyists for copyright maximalists have now convinced one senator and four members of Congress to pressure the ALI to drop the entire Restatement of Copyright Law project.

In case this is not clear: members of Congress are telling a private organization that it should not give its opinion or analysis on the state of the law. That's fucked up no matter how you look at it. Senator Thom Tillis, and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda, have some explaining to do. Using the power of Congress to say that a private organization shouldn't talk about the law is insane.

Even the specifics in the letter are crazy -- and clearly were talking points from lobbyists.

ALI is a respected organization, whose Restatements are often cited as highly persuasive authority in court cases and scholarly works. Traditionally, Restatements have focused almost exclusively on areas of common law because judicial rulings across different jurisdictions may vary and ALI's interpretation are predisposed to assembly, analysis, and summaries.

By contrast, laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement because the law is clearly articulated by Congress in both the statute and legislative history. In creating legislation, Congress develops legislative history through hearing testimony and Committee Reports. Legislation is then expertly interpreted by agencies charged with that authority by Congress -- such as the U.S. Copyright Office and U.S. Patent and Trademark Office. The ALI has long recognized that federal statutes do not require a Restatement and are not an appropriate platform to effect changes in federal law.

This is misleading on nearly every level. First, while copyright law currently comes via federal statute, large chunks of that federal statute developed via common law rulings that determined the basic shape of the law, which was eventually codified by Congress. This includes, most notably, the entire concept of fair use, which was a common law idea. Other areas of copyright that were developed through common law include things like copyright on sound recordings, public performance copyrights, rights of first sale, the idea/expression dichotomy, scenes-a-faire, the idea of "de minimis" copying not being infringing, etc. In short, much of what we know of as statutory copyright came about because of common law interpretations of copyright.

Second, if you've paid any attention to the caselaw over the past forty or so years of copyright, basically from the Sony Betamax case forward, there have been all sorts of areas of copyright law that have required judicial interpretation of the law. And that's exactly what a Restatement is useful in dealing with. Just to take one (of many!) examples, the Blurred Lines case has shaken up copyright law tremendously over the past couple of years, based entirely upon the court's interpretation of the law. And, as we speak, the 9th Circuit is considering what framework to use when determining if a similar song is infringing. These are exactly the kind of things a Restatement is useful in dealing with.

Third, and most importantly, if Congress feels that a court -- or the Restatement -- has gotten something really wrong, it has the power to revise the law. So it's unclear why these elected officials feel so threatened by someone highlighting how various courts have ruled -- especially given the incredibly balanced nature of the group tasked with putting together the Restatement.

These elected officials seem bizarrely worried that courts will somehow rely on the Restatement too much, despite little evidence that this would ever be an issue (and separately, I find it amusing that they keep pointing to legislative history, when various Constitutionalists insist that legislative history is meaningless in interpreting the statute, but I digress).

Throughout its almost 100 years of existence, the ALI has never chosen to draft a Restatement of an area of law that is almost exclusively statutory law -- until now. We are deeply concerned by the ALI's current Copyright Restatement Project. In fact, any Restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on that statutory text and legislative history, not Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.

But then they immediately undermine the point made in the above paragraph:

We also understand that the ALI has come under some scrutiny relating to other controversial projects. The late Justice Antonin Scalia, who was the most frequent author of opinions citing ALI publications in nine opinions, wrote that "modern" Restatements "are of questionable value, and must be used with caution." He added that, "[o]ver time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations of what the law ought to be." In his dissent in Kansas v. Nebraska, Justice Scalia stated that newer Restatements "should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar."

Lately, many states have also begun to repudiate the more recent and controversial Restatement projects, such as the Insurance Liability Restatement. Arkansas, Michigan, North Dakota, Ohio, Tennessee, and Texas have all recently passed legislation that in some form seeks to curtail, or even condemn, the use of the Insurace Liability Restatement under their respective insurance laws. The Kentucky and Indiana legislatures have also passed resolutions stating their opposition to the Insurance Liability Restatement.

So... all of that completely undermines the entire argument here. It's saying that judges clearly recognize that they are free to ignore or decline to endorse anything in a Restatement, and that legislative bodies (like Congress) are free to clarify if a Restatement gets something wrong. So... why are they so upset that a Restatement is taking place in the first place? If it's no good, judges can and will ignore it. If it gets stuff wrong, Congress has the power to clarify the law.

One other thing that's important here. I mentioned earlier that David Nimmer is one of the people involved in this Restatement. Nimmer is also a co-author (with his father) of Nimmer on Copyright, which is (like the Restatement) an interpretation of copyright law, that is frequently cited and relied upon by courts. Nimmer on Copyright has been cited by over 2,000 court cases. Here's former Director of the US Copyright Office, Maria Pallante waxing poetically on the value of having Nimmer on Copyright around to rely on:

What would the Nimmer of 1963 do with red flag knowledge or orphan works? What protections would he assign to vidders and bloggers? How would he analyze the application of copyright law to the software in cell phones and car radios? What would he think of the development agenda at WIPO? What would he do with section 115?

Thankfully, through Nimmer the younger, the treatise goes on, building upon the early days and reminding us that the practice of copyright law isn't only exciting but difficult. It isn't about what we know, or how quickly we can state it in this age of instant public discussion; rather it's a matter of respect. The more one learns about copyright law the more there is to learn. What better symbol is there of this fact than the enduring legacy of Nimmer on Copyright?

Notably, approximately 30 seconds after the elected officials sent the letter discussed above, the very same Maria Pallante, who now heads the Association of American Publishers, a lobbying trade group representing legacy publishers pushing for ever more maximalist copyright, put out a press release cheering on the Congressional letter. Suddenly, Pallante's love and affection for an effort to interpret copyright law has gone away when it's not managed entirely by the Nimmer clan.

“We strongly commend Senator Tillis and Representatives Cline, Deutch, Roby, and Rouda for their powerful letter raising serious concerns about ALI’s Copyright Restatement Project. For more than 200 years U.S. copyright law has served as a crucial incentive to publishers, authors, composers, and countless other artists, enabling the creation and dissemination of works that improve our lives, enhance our culture, and drive an economic engine that delivers $1.3 trillion in annual value to U.S. GDP. The ALI’s attempt to reinterpret this critically important federal statute should be seen for what it is: a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy."

When Nimmer does the exact same thing by himself, it's "reminding us that the practice of copyright law isn't only exciting but difficult" and to be celebrated. When a diverse group of scholars -- including Nimmer -- work on the very same thing, it's "a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy." Yeah, sure, Maria. That's convincing.

The Tillis et al. letter then issues a list of 9 questions it demands that ALI respond to. Hilariously, despite the wide variety of perspectives included among the panel working on this, (and the lack of any such balance in nearly all previous efforts on copyright), these elected officials claim they want to know what ALI has done to stop "bias" and "potential conflicts of interest." Did these same elected officials worry about "conflicts of interest" in the past regarding copyright -- which has almost exclusively been twisted and expanded due to the wishes of Hollywood and its friends? No? Why is it only now, on a non-binding, series of commentary from a private organization, commenting on copyright law, that Congress is "worried" about "bias" and "conflicts of interest?"

There's no need to answer. We already know.

Filed Under: ben cline, caselaw, common law, congress, copyright, david nimmer, harley rouda, martha roby, opinions, restatement of copyright, ted deutch, thom tillis
Companies: ali