RIAA Court Filing In Stairway To Heaven Case Warns Against *OVERPROTECTION* By Copyright

from the pigs-are-flying-over-hell's-frozen-tundra dept

Here's one you don't see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over "Stairway to Heaven" that we've been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin's "Stairway" did not infringe on the copyright in the Spirit song "Taurus." While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case -- in part to fix the 9th Circuit's weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.

As with the Blurred Lines case, I've been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it's actually kind of an important way for most musicians to develop), and if that's seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.

And... that's actually what it's done. The RIAA and the NMPA (National Music Publisher's Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360's Bill Donahue, who first spotted this.

Anyway, who among you ever expected the following in an RIAA brief:

Copyright law thus needs to carefully calibrate and balance its rules to prevent both over- and underprotection. Composers’ intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed. The panel opinion badly overprotects, and in doing so is inconsistent with other federal appeals court decisions that have addressed the same issues.

Who are you and what have you done with the real RIAA?

Other parts of the RIAA brief (and I can't believe I'm saying this) make the same argument I've been making about this case (and the Blurred Lines) case for years:

This Court should also correct the precedent set by the panel allowing findings of infringement based on the use of uncopyrightable elements. Most compositions share some elements with past compositions—sequences of three notes, motifs, standard rhythmic passages, arpeggios, chromatic scales, and the like. Likewise, all compositions share some elements of “selection and arrangement” defined in a broad sense. The universe of notes and scales is sharply limited. Nearly every time a composer chooses to include a sequence of a few notes, an arpeggio, or a chromatic scale in a composition, some other composer will have most likely “selected” the same elements at some level of generality.

To keep every work from infringing—and to keep authors from being able to claim ownership of otherwise unprotected elements— this Court has stressed that selection and arrangement is infringed only when there is virtual identity between two works, not loose resemblance. The same principle should be recognized for music.

The brief goes into more detail -- again more or less repeating what I said in my original post, but with a bit less swearing (okay, 100% less swearing) -- on why it's crazy to argue that non-protectable works should be analyzed in determining if there's infringement:

The panel opinion concluded that the instruction nonetheless erred, on the theory that such common elements could still be protected if “used in combination with other elements in an original manner,” slip op. at 20, as a form of creative “selection and arrangement,” id. But all compositions will share some elements of “selection and arrangement,” defined in a broad sense, with some earlier compositions. To prevent nearly every new composition being at risk for liability, copyright claims based on “original contributions to ideas already in the public domain,” Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), are seen as involving a “thin copyright that protects against only virtually identical copying.” Id. at 812; see also Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (“When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with . . . a ‘thin’ copyright, which protects against only virtually identical copying.”); Rentmeester v. Nike, Inc., 883 F.3d 1111, 1128-29 (9th Cir. 2018). This Court has long recognized this principle in claims involving visual art that allegedly creatively combines public domain elements, as with the sculptures in Satava or the photographs in Ets-Hokin and Rentmeester. The same should apply to music.

I also agree with the RIAA in saying that the "inverse ratio" rule is incredibly stupid. This is the rule adopted by some courts that the amount of "substantial similarity" necessary to show infringement decreases with the amount of "access" the accused infringer had to the original work. But, as the RIAA notes, that makes no sense (especially these days):

Indeed, while as a practical matter few composers create works that are strikingly similar to older ones, nearly all composers enjoy a striking level of access to a vast range of works: They hear them online, on the radio, at concerts, at home, and elsewhere. Indeed, they may hear them without ever seeking them out—played as mood music in elevators, supermarkets, and restaurants, or as incidental music in a film or in a television or radio commercial. Yet even if hearing the songs this way counts as a “high degree of access” (itself a vague concept that juries would have a difficult time applying), that should not allow the creators of new works to be sued under a “lower standard of proof of substantial similarity,”

And, finally, I agree with the RIAA that it would be a mistake to let a jury hear the recordings to compare the two songs. The case is not about the copyright in the sound recordings, but in the composition (which are not the same). And the problem with the sound recording is that it includes the unprotectable/public domain content, and that can be hard for a non-professional jury to separate out. The RIAA agrees:

Here, for instance, the panel agreed with Judge Klausner that the jury should not be allowed to determine substantial similarity by comparing Stairway to Heaven to Spirit’s sound recording of Taurus. Slip op. at 25, 31, 34. Unsurprisingly, Judge Klausner concluded that, because of this, it was better for the jury not to hear the sound recording at all, especially since hearing the sound recording would do vanishingly little to help the jury determine anything else (such as access).

Finally, the RIAA (correctly!) calls out the very weird part of the 9th Circuit ruling that suggested that as an alternative to allowing the jury to hear the sound recordings, they should be allowed to observe Led Zeppelin's Jimmy Page listening to the recordings "to evaluate his demeanor." As the RIAA points out, this is utter nonsense.

The panel rejected this judgment call on the grounds that “allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings.” Slip op. at 34. But is this really so?

Imagine Page sitting there, relistening to the recording of Taurus (which he had already recently heard when preparing for the trial, III ER 502). The jurors are watching his demeanor, an unusual thing for people to do when they are listening to a song together with someone. What would they be looking for on his face that would in any way bear on the question whether he had heard the song nearly 50 years before, in 1967 to 1971? Is there some supposedly tell-tale facial expression that captures the reaction, “Yes, I had heard that song back then”?

Anyway, thanks to Led Zeppelin and Professor Volokh for actually creating a scenario where the RIAA and I are mostly on the same page -- and that page is warning about the negative consequences of overprotection of copyright in harming artists and limiting cultural output.

Filed Under: blurred lines, copyright, eugene volokh, inspiration, led zeppelin, overprotection, public domain, spirit, stairway to heaven, taurus
Companies: riaa

FTC's Overzealous Attempts To 'Protect The Children' May Do Serious Harm To The Internet

from the we-don't-need-the-ftc-to-act-as-our-parents dept

Earlier this year, we were reasonably worried about the FTC's plan to expand COPPA. COPPA -- the Childrens Online Privacy Protection Act -- is one of those laws that appears to have the best of intentions. Who doesn't want to protect the privacy of children, right? But as with so many things, the unintended consequences of overprotection often outweigh the benefits. In practice, the existing COPPA, which puts significant additional burdens on sites that target children under 13, has meant that lots of websites simply ban children under 13 entirely. The end result isn't that children under 13 are more protected, but that parents teach their kids it's okay to lie and to sign up for sites when they're "underage." At the same time, this drives away lots of services that could be really helpful to children -- especially educational sites.

And yet... the FTC wants to expand COPPA, rather than fix its problems. While the new proposals are not as bad as some ideas that had originally been floated, there are still some significant problems with them. As CDT notes, the unintended consequences of the broad definitions could raise significant First Amendment issues:

...we are concerned that the updated definition of when a website is “directed to children” could expand COPPA's reach to general audience sites and confuse website owners as to whether these new rules apply to them. This uncertainty will likely prompt more sites to take advantage of the Commission’s new age-screening safe harbor, which could lead to many more sites demanding age or identifying information from all users before allowing access. Requiring age verification from every user runs counter to the First Amendment right to access information anonymously and increases the collection of potentially sensitive information generally. The new rule's uncertainty is magnified for third party plug-in operators, who may now be liable for the decisions of publishers to embed their plug-in on sites directed to children

Similarly, TechFreedom notes some related potential problems with the new rules.

To start, by deeming persistent identifiers as personal information per se, the FTC's new rule runs contrary to established U.S. privacy law: federal courts have unanimously decided that IP addresses do not allow the contacting of a specific individual.

Further, as Commissioner Ohlhausen's dissent notes, the COPPA statute does not allow the FTC to impose liability on sites that do not collect children's information merely because the operator may somehow benefit from an ad network or plug-in operator collecting information—provided the third party neither targets children nor shares information with the site operator.

If a third party becomes liable once a single employee "recognizes the child-directed nature" of a website—whatever that means—COPPA will become the worst kind of notice-and-takedown system: Would a single complaint—or tweet—from a parent or activist group create "knowledge?" Faced with the impossible task of predicting how the FTC might characterize each of the millions of sites on which ads or plug-ins might appear, operators will have to try to block advertising or plug-ins on sites that appears to be child-oriented. If they can't do that effectively, this potential liability may effectively kill behavioral advertising on any site that can't prove it isn't child-oriented—in other words, on small sites.

Thus, COPPA will now impact adult sites, denying publishers revenue and adult users the functionality that is increasingly provided by embeds. Thus, the FTC invites not only a statutory challenge but also a constitutional challenge similar to that which led the Child Online Protection Act (COPA) to be struck down.

Finally, we've got law professor Eric Goldman, who doesn't hold back his thoughts:

Yesterday, the U.S. Federal Trade Commission (the FTC) promulgated new rules (effectively July 1, 2013) interpreting the Children’s Online Privacy Protection Act (COPPA), and the new rules are a real mess. They are riddled with innumerable ambiguities and questionable policy choices, and I could spend a decade or two trying to figure out how the new rules apply to different factual situations.

That's not a good thing -- unless you're a lawyer. As he notes, once again, the intentions may have been good, but the implementation is a disaster:

The FTC wanted to crack down on these COPPA workarounds, but in typical FTC fashion, it did so in a ham-fisted and marble-mouthed way.

Basically, we're talking about the usual "unintended consequences" of going overboard in trying to "protect the children!" It's a noble goal, obviously. But, speaking as a parent as well as someone who's aware of how these kinds of rules tend to limit innovation, I'd much prefer that the FTC actually stay out of the parenting business and leave that to me.

Filed Under: children, coppa, ftc, overprotection