Google Points Out That Even The Copyright Office Thinks Judge Kozinski's 'Innocence Of Muslims' Ruling Is Wrong

from the that's-not-copyrightable dept

Late last week, the 9th Circuit appeals court asked the various parties to file briefs on whether or not it should reconsider Google's motion for a stay on Judge Alex Kozinski's horrific ruling that an actress, Cindy Lee Garcia, who appeared in approximately 5 seconds of the infamous 13-minute "trailer" of "Innocence of Muslims" had a copyright interest in her performance and could legitimately demand Google remove all copies of the film. Despite the extremely controversial ruling, and the First Amendment implications associated with it, Kozinski almost immediately rejected the motion. However, another judge in the 9th Circuit took it upon him or herself to ask the court to reconsider the question "en banc" (usually meaning all the judges, but in the 9th Circuit, it's a panel of 11). On Wednesday, both sides filed their motions, limited solely to the question of whether or not the court should reconsider the motion for a stay -- but they certainly hint at the arguments that are going to play out as this case goes forward.

Google's brief also includes one rather important new piece of information: after the ruling came out, the Copyright Office rejected Garcia's attempt to register that same copyright.

While this lawsuit was pending, Garcia also was pursuing her copyright on another front. On September 25, 2012, she filed an application with the U.S. Copyright Office in order to comply with 17 U.S.C. § 411(a), which requires such an application as a prerequisite to any copyright infringement suit. On December 18, 2012, however, the Copyright Office wrote to Garcia’s lawyer and informed her that, barring further information from Garcia, Garcia was not entitled to register a copyright.... “For copyright registration purposes, a motion picture is a single integrated work,” it wrote. “Assuming Ms. Garcia’s contribution was limited to her acting performance, we cannot register her performance apart from the motion picture.” ... The Copyright Office informed Garcia’s lawyer that unless she could provide further information about Garcia’s role, her application would be rejected.... Garcia responded by asking the Copyright Office to delay its adjudication of her application until after the panel ruled in this case....

On March 6, 2014, the Copyright Office issued a letter rejecting Garcia’s application.... It explained that “the U.S. Copyright Office * * * views dramatic performances in motion pictures to be only part of the integrated work— the motion picture” and that the Office’s “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”.... The Office also explained why it was inappropriate for it to delay its ruling during the pendency of this case. Citing 17 U.S.C. § 411(a), it wrote that “Congress expressly envisioned that registration decisions by the Register of Copyrights would precede adjudication in the courts” so that the courts have the benefit of the Copyright Office’s decision and so that the Office can intervene to defend that decision.... When applicants institute lawsuits prior to the Copyright Office’s decision, it explained, “the Register’s statutory right to intervene in an action instituted pursuant to a refusal to register is nullified.”

While I often disagree with the Copyright Office on things, nearly everyone should at least agree that it tends to lean towards a more copyright maximalist point of view, happy to allow copyrights on nearly everything. For even it to reject the copyright here, and do so forcefully, suggests that Judge Kozinski's ruling is way out of line -- and, at the very least, deserves a more thorough rehearing.

Google goes on to explain why, even without this, the original order should be put on the shelf while the court reconsiders, again making a very compelling argument that Garcia has no copyright interest and no case. I won't rehash the arguments here, but they're worth reading. At the very least, it's difficult to see how anyone (even those who agreed with the original order) can't see how the ruling is controversial, raises serious issues, and deserves to be stayed until the court can make sure this is the result it thinks is appropriate.

Garcia's brief on the other hand, dispenses with careful legal logic, and plays heavily on emotion -- reprinting some of the "death threats" Garcia received for her appearance in the video. While these were, no doubt, distressing to Garcia, that is unrelated to the actual copyright question at play here, and seem designed solely to lead to an emotional reaction, like the one it appears Judge Kozinski had. Even when the filing does delve into making actual legal arguments, they seem questionable. For example, Garcia's lawyer dismisses the idea that appearing in only 5 seconds of the film has any bearing on the copyright question, and even quotes Judge Learned Hand saying: "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." But that's both misleading and not applicable here. This is not an issue of plagiarism. It's a question of copyright infringement, and de minimis use and fair use (where the amount of the work plays a key role) are well established. To pretend that these issues are meaningless is to ignore some rather basic copyright law (though, so is claiming that an actress has a copyright interest in a movie).

Reading through the two motions you get a sense of two very different levels of expertise concerning copyright law. On top of that, a third filing, from lawyer Andrew Bridges representing a bunch of internet companies, including Automattic, Twitter, Facebook, Pinterest and IAC (and indicating more may soon sign on), suggests that a large part of the internet ecosystem is about to weigh in on why Kozinski's ruling is absolutely insane as well. Hopefully, the court at least recognizes that it should rehear the question of whether or not a stay should be granted on the original prior restraint order.

Filed Under: alex kozinski, cindy garcia, copyright, copyright office, first amendment, innocence of muslims
Companies: automattic, facebook, google, iac, pinterest, twitter, youtube

Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas

from the a-lot-to-worry-about dept

We posted one short post about a key comment from Register of Copyright, Maria Pallante, suggesting that the focus of copyright law should be on large scale piracy, rather than the teenager downloading at home. Many in our comments rightfully cheered on this line, but as the hearing is concluding it's worth pointing out that there are a number of things she's brought up that should be equally, if not more, troubling.

"I've never thought that copyright inhibits innovation."

Throughout the hearing, she repeatedly emphasizes her old line about how copyright is "first for the author" and then later for the public. This is a rewriting of history. Copyright is for the public, period. The means to do that is to create a benefit for authors. She's absolutely correct that these two things can and should be aligned, but those things are only aligned when you put the public interest first and then look to see how to create the best incentives following that. It's a different approach, and I'm troubled by her repetition of it being about "the artist first." It's not.

Also, troubling, was that she more or less endorsed large parts of SOPA as a proper solution for going forward. Specifically, she calls out the "follow the money" approach, which was a key part of SOPA, as a solution she believes would be effective for enforcement. This ignores the massive unintended consequences associated with that approach -- including the ability to shut down and kill off all sorts of innovations early on. A "follow the money" approach would have killed off radio, cable TV, the photocopier, the VCR, the MP3 player, the DVR and more in their early days. Do we really want that?

She also goes back, repeatedly, to saying that we need to make the public performance right a felony, rather than a misdemeanor -- another piece of SOPA. This is the "streaming" question. She wants to let law enforcement throw people in jail for streaming works, even if they do no host or even touch the content itself. That's pretty scary. She talks about the horrors of people "streaming the Super Bowl," ignoring that the Super Bowl isn't suffering from this at all. They're raking in tons of cash from advertisers. And yet, she claims that making streaming a felony is one of her "top 3" priorities on fixing copyright.

In a rather bizarre exchange with Rep. Chu, Pallante agrees with Chu that DRM is a form of innovation and that this shows that copyright inspires innovation. Furthermore, she insists that DRM is a required part of a functioning copyright system. Why? That is not explained.

Elsewhere, she mostly just focused on how things were "broken" and needed to be explored -- but held off on making specific proposals. That's a perfectly reasonable position to take, but it's worrying that there's little to no discussion about why the copyright system is broken. That is, we're talking about fixes to certain parts and a rethinking of those parts, but not looking at the very crux of the issue: whether or not copyright actually is creating an incentive, and if that incentive is useful or necessary. There's no discussion of why or how people create -- nor is there any discussion about how the vast majority of creation today is not for direct monetary benefit anyway, and yet is still locked up by copyright law. Without examining the core issues, the overall reform process is just going to produce another, outdated and broken law.

Filed Under: copyright office, copyright reform, felonies, maria pallante, sopa, streaming

Obama Administration Decides Not To Fight Against Fair Use For Public Universities

from the good-news dept

A couple weeks ago, we wrote about some growing concern that, due to the US Copyright Office's pressure, the Justice Department was seriously considering filing a brief in an important case about fair use. The fear was that the Copyright Office's simplistic argument would carry over to the DOJ, and that could have a massive negative impact on the basic concept of fair use.

Thankfully, the story got a fair bit of attention, and we heard that a lot of people spoke out and more feedback than expected showed up on the DOJ's doorstep, including from some folks in Congress, who were concerned about the possibility of hurting fair use in the educational setting. The end result? The DOJ has chosen not to weigh in after all. While it may seem like not such a big deal to get a government agency to not do something, from a variety of sources, it appears that the Copyright Office and the DOJ were very, very serious about filing something. It's not yet clear if the public speaking out led to the change of heart, but either way, it's good to see the administration back down. Having the federal government argue against fair use and in favor of (mostly foreign) big publishers was just never a good idea, and thankfully they realized that in time.

Filed Under: copyright, copyright office, doj, e-reserves, fair use, georgia state, libraries, universities

Former Copyright Registers: We Must Limit Fair Use At Public Universities, For The Poor Publishers Who Are Paying Us To Say This

from the quietly-killing-fair-use dept

We've written a few times now about an important case involving fair use within university libraries and their "e-reserves." It involves some academic publishers (Cambridge University Press, Oxford University Press and Sage Publications) suing the Georgia State University for daring to allow professors to designate content such that it can be checked out electronically, just like they would with physical content. The publishers demand to be paid extra for such things, because the key to things going digital, to them, is the ability to get paid multiple times for what used to be free. The court eventually came out with a detailed and complex ruling that found most of the e-reserves to be fair use. We had some concerns about some seemingly arbitrary "tests" that the judge came up with, but on the whole were encouraged by the strong fair use support.

We were dismayed, recently, to learn that the Justice Department, at the urging of the Copyright Office, was considering weighing in on the appeal, potentially siding with the publishers and against the University and its students. This is really quite incredible when you think about it. It would involve the President's administration -- which has claimed education is a priority -- siding with mostly foreign publishers against a public university seeking to make access to information and learning more affordable (which, copyright law tells us, is a key thing copyright and fair use are supposed to enable).

But, copyright maximalism runs deep within the Copyright Office, which isn't all that surprising given the revolving door between it and various maximalist lobbying operations.

So, it really shouldn't come as a huge surprise that two former Copyright Office bosses have teamed up to file their own amicus brief that argues in favor of the publishers and against fair use. Between Ralph Oman and Marybeth Peters, they ran the Copyright Office from 1985 all the way up until 2010. Both are extreme copyright maximalists. We last wrote about Oman a few months ago when he made the stunning filing in the Aereo case claiming that all new technology that can be used for content should be presumed illegal until Congress has given an explicit okay. There are tons of crazy Marybeth Peters stories to choose from, but we'll just point you to the time that, in supporting a ridiculous attempted expansion of copyright law (the INDUCE Act, which never passed) she suggested that anyone who thought copyright laws needed to be reformed in the other direction was actually assisting organized crime operations. So, these are not what one might consider folks used to presenting "balanced" arguments, or even arguments that care about the public. These two are copyright maximalists to the extreme.

Also, it's worth noting that while a bunch of publishers who are not a party to the suit (Reed Elsevier, McGraw-Hill, Pearson Education, John Wiley & Sons, and Cengage) are disclosed as funding Peters and Oman (and two others) to prepare this brief, they seem to have left out a mighty big conflict of interest. The Copyright Clearance Center, which has funded 50% of the costs for the three academic publisher plaintiffs, has Marybeth Peters on its board of directors. You would think that this is a very direct conflict of interest that needs to be disclosed. Being on the board of the group that not only is funding the lawsuit, but which would stand to benefit massively in financial terms should the lower court ruling be overturned (the CCC would be the one to collect the fees, most likely) seems like an obvious conflict of interest... and is not named at all. Oman, for his part, used to be on the board there as well.

The brief is, well, pretty much what you'd expect. They're not fans of fair use and they're "concerned" about how actually allowing fair use would impact those who paid them for this brief and who are funding the lawsuit:

Amici are concerned that the flawed reasoning and incorrect holding of the district court will have implications far beyond the specific uses at issue here, and ask this Court to reverse the decision below.

The crux of their argument is that the district court made a horrifying mistake in actually thinking that Georgia State's status as a nonprofit institution of public learning would weigh in favor of fair use. Apparently, according to these former Copyright Office bosses, the court really shouldn't have paid so much attention to pesky facts like that, but rather should have focused on other issues... like the ones the publishers prefer.

In considering the application of the first fair use factor, and indeed throughout the Opinion, the district court gave disproportionate weight to the fact that the challenged uses were being made by a nonprofit educational institution. To say that the court’s “analysis” of the first fair use factor was cursory is an understatement. The court looked no further than the nonprofit status of GSU and the fact that teaching was involved to find that “the first fair use factor favors Defendants.”

Their argument hinges on other (troubling) rulings concerning coursepacks. As we noted in our initial analysis of the case, those rulings are both different (they involved for-profit companies) and not analogous (a coursepack has always been different than a library reserve item, which is what this is more like). Furthermore, since the coursepacks were ruled infringing, a strong argument can be made for just how damaging those rulings have been for education, massively increasing the cost of education. Coursepacks jumped in price, sometimes by a factor of 10.

Peters and Oman try to argue that since the use in e-reserves is not "transformative" the "nature of the use" should actually weigh in favor of the publishers. Of course, whether or not it is transformative is only one part of the analysis. The actual law explicitly says that use in "teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright" and, as for the "nature of the use" part of the test, again, the statute itself says that one of the key determining factors is "whether such use is of a commercial nature or is for nonprofit educational purposes." Contrary to the claims of Peters and Oman, that would seem to overwhelmingly support a determination of fair use, no matter how hard they try to hide from that language.

The brief goes through a whole, wasted, analysis of what is considered transformative use, ignoring all of the language cited above. Whether or not it is transformative is only part of "the nature" of the use. Since that same prong explicitly calls out nonprofit educational purposes, whether or not it is transformative isn't nearly as important.

And then... it gets even more ridiculous. You simply know that copyright maximalists are reaching deep for an argument when they pull out the old "but this would violate our international treaties!" argument. But, yes, that one makes an appearance here too:

Exceptions and limitations in U.S. copyright law, including Section 107, must also be viewed in the context of the relevant U.S. treaty obligations. In 1989, the United States became a member of the Berne Convention for the Protection of Literary and Artistic Works..., the principal international copyright treaty. Article 9(2) of the Berne Convention addresses the nature and scope of copyright exceptions that its member states may incorporate in their laws, establishing a “three-step test” that such exceptions must satisfy: (1) they must relate to “certain special cases,” (2) they may not conflict with a normal exploitation of the work, and (3) they may not unreasonably prejudice the author’s legitimate interests. The three-step test provides a useful yardstick by which to measure the application of copyright exceptions such as fair use. The district court’s refusal to see beyond the nonprofit educational nature of the challenged uses influenced its refusal to acknowledge the extent of the takings and the resulting interference with the Appellants’ normal exploitation of their works and their legitimate interests.

Of course, just a few months ago, we were talking about how maximalists keep falling back on this claim that we must follow the three step test as a way to stop real fair use. That test is actually significantly more restrictive than other international agreements, like TRIPS, that grant countries the ability to be much more flexible in determining things like fair use and user rights. The very nature of the three steps test goes against the principles of copyright, in that they focus on minimizing the burden on the copyright holder, rather than maximizing the benefit for the public, which (again) is what copyright is supposed to be about.

And, even if we went with the three step test, there's a strong argument that the original ruling is perfectly within the confines of that test. It does involve a special case, it does not conflict with normal exploitation of the work (the books can still be sold) and it certainly doesn't "prejudice" the legitimate interests of the rights holder.

There are a number of other, similar arguments made, in which Peters and Oman more or less try to argue that the fact that this is a non-profit, educational institution, and the use was for learning as a part of a class is of almost no concern whatsoever. In their minds the key element in determining whether or not something is fair use is... how much it impacts the copyright holder:

Rather than focus on the issue before it, the court instead viewed the issue entirely from the perspective of the user.

How dare the court focus on the "users" that copyright law is supposed to benefit!

Amusingly, in the conclusion, they then try to argue that if the lower court ruling stands it will be an insult to the important "balance" that "is at the heart of copyright law." Really!

The inclusion in the decision of arbitrary and specific rules creates, in view of the broader implications of the decision, a risk that this decision will function as de facto legislation establishing new fair use standards for the type of uses at issue in this case that fail to incorporate balance between the interests of all stakeholders – a balance that has always been at the heart of copyright.

Yes, they spent nearly all of the preceding 33 pages arguing that the interests of the public, the students and nonprofit educational institutions are not important -- and that the only stakeholders who matter are copyright holders -- only to conclude by saying that "all stakeholders" aren't properly balanced with the lower court decision. And, of course, if you know anything about the history of copyright law (and Oman and Peters know that history quite well, as they've been a major part of it) they know that it's been one expansion after another, solely based on the interests of copyright holders and against the interests of the public.

Since the 1976 Copyright Act became law, there have been an astounding 52 amendments to the Copyright Act. They're all at that link. Let's see if you can point to how many of those actually were about benefiting the public vs. how many of them were about ratcheting up the law in favor of copyright holders. Let's "balance" those numbers, shall we? Why do I get the feeling that Oman and Peters would rather not look at what that data actually shows?

The simple fact is that even if you do believe that copyright law is about "balancing" such interests (and we believe that's a fundamental misunderstanding of copyright law, the purpose of which has always been to serve the best interests of the public), the scales have been so far tipped in favor of copyright holders for years. And, over the past 30 years, Oman and Peters themselves have been guilty of putting their fingers on one side of the scale almost exclusively. To now argue that this minor statement in support of fair use (which doesn't change anything -- since many universities had already acted this way, and it's always how non-digital reserves had worked) somehow upsets a delicate "balance" isn't just laughable, it's an insult to those familiar with the history of copyright law.

Filed Under: copyright, copyright office, copyright register, fair use, georgia state university, libraries, marybeth peters, publishers, ralph oman
Companies: copyright clearance center

Copyright Boss: 'It's Great Mechanics Now Need To Know About Copyright'

from the no,-actually,-it's-not dept

The Copyright Office continues to show that it is completely out of touch and tone deaf to the mess that copyright laws create today. We've talked a few times about how abuses of copyright law have created messes for industries that you might think would never have to deal with copyright on a regular basis. Take, for example, mechanics. What does repairing your car have to do with copyrights? In the past, absolutely nothing. More recently, however, it's been a huge deal. That's because automakers have used copyright to lock up diagnostic codes and information concerning onboard computers. The end result is that car owners are often forced to go to dealers (who are expensive) over independent car repair shops. Independent repair shops who circumvent the digital locks on car computers may be found to be violating the DMCA's anti-circumvention clause. As we've noted, this seems like a clear abuse of the DMCA, as it was clearly not designed for such a purpose. Attempts to fix this with "right to repair" legislation have mostly gone nowhere (automakers are powerful lobbyists, and the entertainment industry also doesn't want anything that weakens the anti-circumvention clause).

It would be difficult to look on this turn of events in a positive way no matter what angle you might take. It's clearly abusing copyright law beyond its intended purpose. It's limiting competition. It's making life worse for the public and for small businesses. So how could this possibly be spun as a good thing? Leave that to Copyright Office boss Maria Pallante. At a recent conference all about Section 108 of the Copyright Act, she apparently declared (via Copycense, who was in attendance):

"I think it's really great your car mechanic knows about copyright"

She similarly argued that a big challenge of copyright law is making it more accessible and suggested it was a good thing that it's "no longer" reserved to experts to deal with copyright law. All of that should actually be seen as a pretty massive problem with the system. As a government-granted monopoly privilege that also has free speech implications, we should want copyright to be very carefully limited and calibrated in a manner that it is not something that enters people's everyday lives, and that it's not an issue that a mechanic should ever need to know about. Those are signs of a completely broken system. They're signs that copyright has expanded massively beyond its basic structure, into a monstrosity, often driven by the nature of technology. When your mechanic needs to be an expert in copyright law just to know if he or she can fix your car it may make Maria Pallante happier, because it seems to validate her job, but it should be seen as a huge problem for the system. A copyright system that is working is one that doesn't trouble totally unrelated professions like mechanics. It's only a broken system that would create serious friction in jobs like that. That the head of the Copyright Office does not realize this is pretty frightening.

Filed Under: copyright, copyright office, maria pallante, mechanics, section 108

Obama Administration Considers Joining Publishers In Fight To Stamp Out Fair Use At Universities

from the pure-insanity dept

Okay, this is really quite unfortunate. In 2011, we wrote about an important copyright case involving three publishers suing Georgia State University for daring to have "e-reserves" that allow professors to make certain works available to students electronically via the university library. Nancy Sims, copyright librarian for the University of Minnesota, wrote a guest post summarizing the case for us as follows:

The publisher-plaintiffs are suing over the way instructors (and possibly others on campus) share course readings like academic articles and excerpts from academic books. They are objecting both to readings posted on course websites (i.e., uploaded by instructors and accessible only to students registered for a course) and readings shared via "e-reserves" (i.e., shared online through university libraries, usually also with access restricted to students registered for the course). The publishers claim that sharing copies of readings with students is not usually a fair use, that faculty can't really be trusted to make their own calls about what is or is not fair use, and that permissions fees should be paid for most of these uses.

Thankfully, last year, we wrote about how the district court issued an astounding 350-page ruling that basically said that most of these electronic reserves were clearly fair use. We had some issues with the way the judge went about the analysis -- often coming up with random and arbitrary standards for the amount of a work that could be used while remaining fair use, but, on the whole, it was good to see the judge support fair use relatively strongly (and, in some cases, to not even get to a fair use analysis by saying that the use was allowed as "de minimis" copying).

Of course, no matter what happened, the other side was going to appeal. We're getting closer to the appeals court hearing the case, but something interesting popped up last week. In a somewhat surprising move, the Justice Department jumped in and asked the court for some more time for the filing of amicus briefs from concerned third parties, because it was considering weighing in on the case. The Justice Department? Why should it be interested in a dispute concerning whether or not public university libraries are engaged in fair use by making works available to students?

In digging into this, we've heard from a few sources that it's actually the US Copyright Office that has asked the DOJ to weigh in on the side of the publishers and against the interests of public univerisities and students. Yes, the same Copyright Office that just promoted a former RIAA VP to second in command. I'm sure that's just a coincidence.

Let's be clear: it is flat out ridiculous that the Obama Administration may be supporting the publishers here. Two out of the three publishers are foreign publishing giants, and it would be supporting them against a public university library tasked with helping to educate students. The entire purpose of copyright law is supposed to be to promote the progress of learning. The copyright clause in the Constitution used "science" but back in that era "learning" and "science" were effectively synonymous. The very first Copyright Act in the US was actually titled "An Act for the Encouragement of Learning." Current copyright law is explicit that fair use covers this sort of situation:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

And yet... these publishers, along with the US Copyright Office and (perhaps) the DOJ, would like to ignore all of this, and reject fair use in such public learning centers? It is ridiculous. Oh, and did we mention that the lawsuit by these publishers is really being funded by the Copyright Clearance Center (who, shockingly, would be in charge of collecting fees for such uses...) and the American Publishers' Association? If the Obama Administration wanted to appear any more in the pocket of "Big Copyright" and against the public interest when it comes to learning and education, I'm not sure of any better position to take.

This is just a year after the SOPA fight, and it appears that the Copyright Office, led by Maria Pallante, who was a massive supporter of SOPA, has not learned the lesson of that debacle. It would be a travesty if the Justice Department listened to such an out of touch position and argued that the court should reject fair use in such scenarios.

It would be a complete embarrassment for an Obama administration that has argued that improving our education system is a key policy issue to turn its back on education by having its Justice Department argue against a public university library and students, and in favor of a blatantly self-interested copyright collection agency, funding some foreign publishers, trying to shake down students for extra money to learn. Just the fact that the US Copyright Office is supporting this and asking the Justice Department to make this move is a sign of how screwed up the Copyright Office is today. And it remains unclear why this is even an issue that concerns the Justice Department at all. Since when is access of students at a public university to educational materials an issue that should be of any interest to the Justice Department?

For what it's worth, we've heard that the people in the Justice Department who are considering its position are talking to various government agencies and officials over the next few days to determine what its final position should be. We would hope that the Justice Department, and the wider Obama administration (including the Copyright Office), take into account what happened last year when SOPA was put forth and the government sought to use copyright law to limit the public's rights. It would seem unwise to then take a position that might stir up significant interest, specifically when it involves something as ridiculous as supporting foreign publishers over public university students seeking reasonable fair use access to educational materials, as is clearly supported by the Copyright Act.

Filed Under: copyright, copyright office, doj, fair use, learning, libraries, obama administration, publishers, universities
Companies: georgia state university

Former RIAA VP Named 2nd In Command Of Copyright Office

from the revolving-door dept

We've talked in the past about how unfortunate it is that the US Copyright Office seems almost entirely beholden to the legacy copyright players, rather than to the stated purpose of copyright law. That is, instead of looking at how copyright can lead to the maximum benefit for the public ("promoting the progress of science") it seems to focus on what will make the big legacy players -- the RIAA and MPAA -- happy. Part of this, of course, is the somewhat continuous revolving door between industry and the Copyright Office. Just a few months ago we wrote about how the Copyright Office's General Counsel, David Carson, had jumped ship to go join the IFPI (the international version of the RIAA).

Last night the news came out that the US Copyright Office had now named Karyn Temple Claggett as the Associate Register of Copyright and Director of Policy & International Affairs. While Temple Claggett has actually been at the Copyright Office for a little while as Senior Counsel for Policy and International Affairs, not too long ago she was a hotshot litigator for... the RIAA. In fact, an old bio of hers, from when she was at the RIAA (as VP, Litigation and Legal Affairs), notes that she was instrumental in their ever-present legal campaign against pretty much any innovative technology that comes along:

While at the RIAA, Ms. Temple-Claggett has worked on some of the most high-profile copyright cases brought by copyright owners in recent years, including the Supreme Court Grokster litigation, as well as litigation against LimeWire, XM Satellite Radio and Usenet.com

I'm sure she's a fine person and a good litigator, but it's difficult to think that she'll be anything but a pure maximalist in favor of expanding copyrights and copyright enforcement, and against any innovation that challenges the status quo. It's hard not to be cynical when you see this kind of revolving door. And, of course, it's always entirely one-sided. Could you imagine the Copyright Office naming a top EFF litigator as second in command? Exactly the point. How is it possible to take the Copyright Office seriously as an advocate for what's best for the public, when the connections there are to industries who lean heavily on keeping out innovation and promoting an old business model through aggressive litigation and regulation?

Filed Under: bias, copyright office, david carson, karyn temple claggett, lobbyists, revolving door
Companies: riaa

How Out Of Touch Is The Copyright Office? It Thinks The Authors Guild Is The 'Leading' Advocate For Writers' Interests

from the not-mine dept

One of the concerns we have about the US Copyright Office is that the staff there often seem entirely out of touch with the world we live in today. Witness, for example, its description of the Authors Guild in a recent announcement about an event they're hosting celebrating the Authors Guild 100th anniversary:

The Copyright Office is pleased to host a Copyright Matters discussion about the history and future of the professional author on December 11 at 3 p.m. in the Coolidge Auditorium of the Library of Congress. The event, occurring on the occasion of the 100th anniversary of The Authors Guild, the nation's leading advocate for writers' interests, will feature Guild president, author Scott Turow, as the keynote speaker. Other speakers include author and past Guild president Robert K. Massie; John Y. Cole of the Library's Center for the Book; and book market analyst Peter Hildick-Smith of the Codex Group. Also present will be guest authors Roy Blount, Jr., Katherine Neville, Mary Pope Osbourne, Nick Taylor, and others. The event is free and open to the public. See www.copyright.gov/copyrightmatters.html.

Except, of course, that's not even close to true. The Authors Guild represents a very tiny sliver of "writers." It currently has about 9,000 members, and famously only realized that self-published authors count as authors... a few months ago. Look, if copyright only covered works that were officially registered with the Copyright Office, perhaps they'd have a point in claiming that the AG represents writers. But that's silly. Due to ridiculous expansion of copyright laws in the US and around the globe (much of which the Copyright Office gleefully supported), everything that people write that has even a tiny modicum of new/creative elements is automatically covered by copyright. That includes the email you just sent and the scribble your toddler just drew on a piece of paper.

Somehow, I don't see the Authors Guild watching out for those "writers" interests.

What about me? I make my living writing -- but I see the Authors Guild as an out of touch organization run by luddites working hard to limit and hinder innovation because they're confused and scared of technology -- mainly how it creates more competition for their special club which doesn't want too many members. This is the same organization that argued that having a legally purchased ebooks read aloud violated their copyrights. The same organization that has sued libraries for scanning books to make them available for people to read in digital form. The same Authors Guild who has argued that the future of books is... brick and mortar stores. The same Authors Guild who (seriously) argued that Shakespeare wouldn't survive in the modern era since no one respects copyright any more (ignoring that there was no copyright in Shakespeare's time, and he did okay).

The Authors Guild isn't representing 99.999% of all "writers." And it certainly doesn't seem to be advocating for writers' interests, considering that it's fought against some of the best new technologies for creating, distributing, promoting and monetizing writers' works today.

Of course, we know what this is really about. The Copyright Office is still living in a time in the past, where it gets to fetishize a small cadre and closed off "club" of top professionals, ignoring that the rules and laws they seek to pass to protect that club against innovation and competition, also have massive negative impacts on the vast majority of content creators who aren't members of that tiny club. The Authors Guild may do wonderful things for a small group of authors who don't want to change with the times, but I don't see how that's a particularly beneficial service. It seems like a mistake. And the Copyright Office celebrates this?

Filed Under: authors, copyright, copyright office, writers
Companies: authors guild

US Copyright Office Seeking Comments On Resale Royalties For Visual Artists

from the royalties:-the-taking-that-keeps-on-giving dept

Well, it looks as if all of Bruce Lehman's lobbying has possibly paid off. Lehman, the author of the DMCA and the lobbyist for the Artists Rights Society, began floating the idea of a resale royalty for visual artists, following in the footsteps of other countries who have allowed visual artists to collect royalties on any reselling of their art -- basically meaning they get paid again every time anyone resells their artwork. The US Copyright Office is now accepting comments on the proposed Resale Royalty Right.

The Copyright Office has published a Federal Register notice requesting written comments on how current copyright law affects and supports visual artists and how a federal resale royalty right for visual artists would affect current and future practices of groups or individuals involved in the creation, licensing, sale, exhibition, dissemination, and preservation of works of visual art. Specifically, the Office seeks comments on the means by which visual artists exploit their works under existing law as well as the issues and obstacles that may be encountered when considering a federal resale royalty right in the United States.

The full summary goes into further detail: 

The royalty originated in France in the 1920s and is in general practice throughout Europe, but is not part of current United States copyright law. Under the Copyright Act (the “Act”), 17 U.S.C. 101 et seq., visual artists, like other authors, are provided a bundle of exclusive rights, including rights to reproduce, distribute and create adaptations of their works. These rights, however, do not affect the disposition of the original work of authorship. Instead, the first sale doctrine, codified in 17 U.S.C. § 109, generally permits the lawful owner of a copyrighted work “to sell or otherwise dispose of the possession of that copy” and to “display that copy publicly . . .” without the authorization of the creator.

The Copyright Office recognizes the right of the first sale before pointing out the seeming disparity between other artists (musicians, authors, filmmakers) who earn money with every copy sold and visual artists, who only earn money on the first sale. 

A question is whether the system is as advantageous for certain artists of visual works. For some artwork, where the primary financial benefit may be through the sale of the original work rather than multiple copies, the creator may receive less financial benefit from the work than do subsequent collectors or other downstream entities that are able to take advantage of the increase in the value of the artwork over time.

The official summary goes so far as to refer to this difference as a "perceived inequity," which is exactly what it is: perceived. Rewarding the original artist on future sales of his or her art, once it has been sold by the artist to another individual, turns these royalties into an analog of the capital gains tax. (Of course, the capital gains tax isn't collected when someone loses money, but this royalty plan would collect on losing "bets" as well.) Those who work in the visual arts field might feel like they've been given the short end of the royalty stick, what with other artists collecting royalties on every copy sold, but their art generally comes with a higher entry fee. 

If you look at this in reverse, musicians don't receive a cut of the sales price on any rarities in their catalog or get a cut of used sales. Neither do authors or filmmakers. And it's not as if visual artists can't sell prints or commission reproductions to increase the income of each piece of art produced. Then there's the fact that as an artist's work increases in value, his or her new work should also increase in value, allowing them to make more money per piece sold.

Compare that to authors or recording artists. As they get more famous, they might be able to demand bigger advances or sell more copies of their albums, but it does nothing to increase the price of an album or book. U2 might be the biggest band in the world, but each copy still sells for $10-20. Visual artists might sell early pieces for less than $100 but should they become famous, the price per piece might edge up into the "millionaire" tax bracket. The other downside to implementing a resale royalty on visual art is that it disproportionately harms new artists. By raising the price and difficulty level of reselling a piece, investors will likely purchase fewer unknown works and concentrate instead on proven, incumbent commodities. 

The key word in this discussion is "perception." It seems unfair because no artist can expect sell a few hundred sculptures or paintings while authors and recording artists sell thousands of individual units. But attempting to level a playing field composed of apples and oranges by putting the artist between purchasers and their right of first sale isn't going to "fix" anything. This will just add another layer of IP-related bureaucracy to an already severely convoluted system. 

Then there's this: California passed a resale royalty law in 1977 affecting any artwork sold in California or sold anywhere in the world by a California owner. To say that it was anything approaching a "qualified success" would be stretching the definition of that term to the breaking point:

Enforcement of California's law has been spotty over the last 35 years, according to an opinion issued on May 17 by Judge Jacqueline Nguyen, a judge on the 9th Circuit Court of Appeals who was sitting by designation in U.S. District Court in Los Angeles. Even though artists all over the country qualify for resale royalties, only about 400 painters and sculptors have received a total of $328,000 in resale royalties since the Resale Royalties Act took effect. A 1986 survey of Bay Area artists found that dealers frequently refused to comply with the law when artists asked about the identity of new owners or resale prices. For the big auction houses, Sotheby's and Christie's, California's law wasn't a big deal.

As could be expected, dealers simply routed around this legal speedbump. When a group of artists filed a class action suit against the auction houses, the entire law was tossed out as unconstitutional.

The judge agreed with lawyers for the auction houses (Skadden, Arps, Slate, Meagher & Flom for Christie's; Morrison & Foerster and Weil, Gotshal & Manges for Sotheby's) that California's law violates the Commerce Clause of the U.S. Constitution because it's an attempt by one state to control commerce outside of its borders. "Under its clear terms, the (Resale Royalties Act) regulates transactions occurring anywhere in the United States, so long as the seller resides in California. Even the artist -- the intended beneficiary of the CRRA -- does not have to be a citizen of, or reside in, California," Nguyen wrote. "For these reasons, the court finds that the (law) has the 'practical effect' of controlling commerce 'occurring wholly outside the boundaries' of California even though it may have some 'effects within the state.' Therefore, the (law) violates the Commerce Clause."

One has to wonder whether the recent rejection of the only resale royalty law in the US has anything to do with the sudden push for a nationwide act. Certainly states won't be able to enact their own versions without running afoul of the Commerce Clause. Placing the entire nation under the same royalty legislation would remove this constitutional roadblock, and with a majority of European countries operating under a droit de suite directive, it would also trim down "venue shifting" options for those wishing to avoid paying the royalties. It also should be noted that Congress has declined to add resale royalties every time it has reconsidered the copyright statute.

A quick postscript: The Senators behind this bill (Herb Kohl [WI] and Jerrold Nadler [NY]) are trying to "fast track" the legislation, opening it up for comments for only 45 days, rather than the usual 90. As the bill is worded now, the resale royalty would only apply to auction houses and not private sales through dealers. 

Filed Under: copyright, copyright office, resale rights, visual artists

US Copyright Office, MPAA Celebrate Handing Hollywood Stars Their Own Special Copyright Monopoly Powers

from the oh,-phew,-the-mpaa-was-on-hand-to-help dept

So remember how we were just talking about WIPO passing a totally unnecessary new form of monopoly protection for Hollywood movie stars? The negotiations concluded with everyone -- including the US -- already "signing" the agreement, and now countries just need to ratify it. In a rather sickening display of cluelessness, the US Copyright Office put out an announcement about just how awesome it was that they were able to lock down some more culture to make a few Hollywood stars happy and able to block anyone from creating mashups or remixes of their work.

Copyright Office boss, Maria Pallante, who incorrectly believes that copyright is "for the author first and the nation second," was overjoyed at being able to give Hollywood actors more power to lock up content they performed in, over which they have no copyright interest:

“The Beijing Treaty is an important step forward in protecting the performances of television and film actors throughout the world," said Register of Copyrights Maria Pallante.

But, um, why do they need this? No one ever answers that question, because the answer is they don't need this. At all. It's just a way to lock up culture some more. It's sickening.

Not surprisingly, the Copyright Office's announcement plays up the fact that the MPAA was in Beijing to help the US negotiate. And, of course, Chris Dodd is just thrilled at how awesome this treaty is, and how it shows how "substantive" treaties can be created. Yeah, there's no regulatory capture going on here... none at all. And, um, who was there to represent the public's interest? Who was there to make sure that our culture wasn't locked up and that free speech and technology weren't stifled? No one. Pallante then says that:

"There was a renewed atmosphere of cooperation and collaboration among all of the delegations in attendance...."

Well, you know, that's what happens when you only invite your friends, and leave the public and the public interest out in the cold. She might as well have just been more honest and said what the truth is: "For the Hollywood stars first, and screw the nation."

And I thought after the SOPA/PIPA and ACTA debacles, Hollywood and the US government has promised no more backroom deals signed just to support Hollywood...

Filed Under: chris dodd, copyright office, hollywood, maria pallante, performer's rights, wipo
Companies: mpaa