Paying Attention to the Echo Chamber at CES Copyright Panel Discussion — David Newhoff dissects the incredibly one-sided copyright panel held this past week during CES, paying particular attention to EFF co-founder John Perry Barlow’s remark that “The Pirate Bay is speech.”

Guess who’ll grab Facebook Sponsored Stories payout? (Hint: Not the victims) — Andrew Orlowski looks at the latest example of the current trend of tech companies paying out class-action settlement awards to the organizations that they fund anyway. This time, it’s Facebook, in connection with litigation over its “Sponsored Stories”, and the beneficiaries include the usual suspects, as well as, says Orlowski, “WiredSafety.org (whose founder serves on Facebook’s Cybersafety Advisory Board).”

Youtube Allows Pirate “Partners” to Profit From Illegal Movie Uploads — Since YouTube lifted its 20 minute limit on videos that could be uploaded, it has been easier to find full-length films on the site… and, as Ellen Seidler notes here, easier for people without rights to full-length films to upload and monetize them. Seidler floats the suggestion of some sort of verification process for videos over 20 minutes in length.

RapidShare: Traffic and Piracy Dipped After New Business Model Kicked In — Last year, filelocker RapidShare unveiled a set of changes to reduce copyright infringement through its service, along with an “anti-piracy manifesto” calling on similar services to join it. Fastforward to today and, according to Torrentfreak, the service has experienced both a drop in traffic and infringement. I found the following remark from the article particularly interesting: “The flipside in the short-term is that RapidShare could lose a bit more traffic, at least until it manages it balance the loss of traditional file-sharing traffic with its new image as an antipiracy-motivated Dropbox-style cloud-hosting business.” Kudos to Torrentfreak for admitting there is a distinction between legitimate cloud storage providers like Dropbox and those cyberlockers that are set up primarily to profit off infringement.

Levi’s Was First. Now, Several Major Brands Want to Pull Their Pirate Site Advertising… — Digital Music News reports that since the USC Annenberg Innovation Labs released its report on ad-funded piracy, “numerous brands” have contacted the report’s authors seeking advice on preventing their brands from showing up on sites with widescale infringement.

Reading Between The Lines Google Tells The Truth On Ad Supported Piracy, Now Let Markets Do Their Work — Speaking of the USC ad report, the Trichordist does an excellent job dissecting Google’s “elegant non-denial” made in response to the report’s conclusion that Google ads provide a major source of revenue for online piracy.

Hotfile, Megaupload, and the Future of Copyright on the Internet: What can Cyberlockers Tell Us About DMCA Reform? — Finally, have a look at third-year law student Ross Drath’s recent paper on secondary liability and cyberlockers. Drath examines issues that are currently facing courts in two major cyberlocker cases and then offers some recommendations for increasing both certainty and effectiveness in protecting copyrighted works online. Says Drath, “It would be naïve to expect that Internet piracy could somehow be completely eradicated. Like alcohol and drug abuse, these practices will surely continue regardless of the level at which they are regulated. But we can still do better than we are doing right now.”

Nowadays author’s rights are among the universally recognized human rights.

One would be forgiven for thinking the above quote was made recently and not, as it actually was, 160 years ago. Recent months have brought increased attention to copyright law and its reform. What’s most troubling about some of these calls for reform have been their mischaracterization of the nature of copyright — as, say, government regulation — and grossly inaccurate historical claims concerning the origins and development of the law. Because many of these recent articles come from the US, the focus has been on the copyright law of the US. But the development of copyright laws in countries outside the US should not be neglected.

But one example of this comes from mid-nineteenth century Europe. The author of the above quote, Johann Kaspar Bluntschli (1808—1881), was an influential Swiss jurist. 1See, generally, Herbert Baxter Adams, Bluntschli’s Life-work (Baltimore, 1884). His 1853 work, Deutsches Privatrecht, catalogs the private law of Germany at the time. The sixth chapter is devoted to the law of author’s rights, roughly equivalent to copyright law. At the time, laws governing author’s rights in Germany were roughly only a decade old.

According to Primary Sources on Copyright, “Bluntschli’s approach to author’s rights is regarded as one of the main sources of the personalistic view on intellectual property which developed within the German tradition.” The full text of the chapter along with an English translation can be found at the Primary Sources site. 2Excerpts from the work come from the English translation provided by Bently & Kretschmer (eds), Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org). Philosophers such as Kant and Hegel also were indispensable to developing this justification for copyright law, sometimes considered the Continental approach to copyright, distinguishable from the Anglo-American’s Lockean and utilitarian approach. 3See, for example, Natalie C. Suhl, Moral Rights Protection in the United States Under the Berne Convention: A Fictional Work? 12 Fordham Intellectual Property, Media, and Entertainment Law Journal 1203 (2002). However, the two traditions are not as divergent as sometimes made out to be, 4Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990). and less so since the globalization of copyright law, a process that began in earnest with the Berne Convention in 1886. For a comprehensive account of copyright that ties together a Lockean and Kantian approach, I strongly recommend Robert Merges 2011 Justifying Intellectual Property (a book I’m currently reading).

The Development of Author Rights

Bluntschli begins his chapter on author’s rights with their history and nature. He divides this history into four stages of development.

In the earliest stage, these rights were conceived as a “privilege… conferred in individual cases.” At this stage, “the need for protection of these rights was felt, but there was no understanding as yet of their nature.”

This privilege evolved into the next stage, that of a “publishing right.” Bluntschli writes, “However, this was a most unsatisfactory approach because it failed to take into account that the authorised publisher and the unauthorised reprinter have a different right only by virtue of their different relationship to the author, and that a monopoly granted to the former without consideration for the author, merely for the sake of the priority of the commercial enterprise, lacks any proper foundation.”

From here, the concept of “intellectual or literary ownership” came about. Bluntschli notes that this point of view has been championed by writers, but finds it unsatisfactory as a legal concept.

For jurisprudence ownership can be nothing else but a property right, that is, the complete possession exerted by individual persons over physical objects. An author’s right to his work is, however, not of this kind, since the work is something altogether quite different from the manuscript and the printed copies of the book. The latter are indeed objects which fall under the ownership of individual persons, but the work as an intellectual product is attached neither to a particular manuscript, nor to a particular book. It can also exist without having been written or printed, namely, as a spoken lecture or a speech. The author’s right is, therefore, not affected in the least if, say, his manuscript has been destroyed and all copies of the printed book have come into the hands of private owners. As an intellectual product his work has an essentially unphysical character. The living word is its truest expression.

Moreover, the author’s right is also different from ownership in the sense that the former always refers back to the author as a specific individual person, from which it can never dissociate itself completely, as long as it exists as such, whereas ownership is not concerned with the individual person of the owner. Finally, the direction, and consequently the content, of an author’s right is different from the direction and content of ownership. The owner wants to have the thing for himself; an author, on the contrary, wants to communicate his work to the public, as long as it can be done in an ordered manner and his authorship can be respected.

And so, we reach the fourth stage. Citing both the philosopher Kant and French jurist Renouard, Bluntschli endorses a conception of the author’s right “not as a property right, but, rather, as a personal right of the author, as the right of the originator.”

The Nature of Author Rights

As noted above, observers generally mark a divide between this Continental “personalty” foundation of copyright and the Anglo-American “property” foundation, and at first glance, Bluntschli’s approach seems to confirm this divide. However, I think these two approaches, especially during the time frame Bluntschli was writing about, have more similarities than differences.

The personal rights approach can be seen as a more robust conception of “property” as developed by British, and later American, jurists during the 17th and 18th centuries. Such jurists were open to a broader definition of property than what we often think of today. For our purposes, this broader definition was explained most notably by James Madison in his 1792 essay, On Property. In it, the “Father of the Constitution” writes that property encompasses two meanings:

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man’s land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

He has a property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Law professor Laura Underkuffler writes that this broader conception of property was fully present during the Founding era. 5On Property: An Essay, 100 Yale Law Journal 127 (1990). “The term ‘property’ or ‘propriety’ was widely used in the seventeenth century to include constitutional liberties as well as other matters.” John Locke’s writings on property embraced this wider meaning of property as well. Underkuffler states that this historically broad definition of property

was tied to the notion of human beings as masters of themselves; it involved the maintenance of personal integrity in both a physical and nonphysical sense. It was intimately related to the development of the human personality, to the exercise of independent thought and creative powers. It was universal and reciprocal: it was that to which we, as human beings, “attach a value and have a right, and which leaves everyone else to the like advantage.”

In this sense, one can easily see the similarities to the personalty rights discussed by Bluntschli. Both reflect a deep recognition of personal autonomy and dignity; the differences, at least in the broad strokes, are merely semantic.

Bluntschli next lucidly describes the nature of author’s rights. He first emphasizes that the intellectual product created by the work is not physical but a “revelation and expression of his personal intellect.” There is a “natural relationship” between author and work, and it is by “natural right that this relationship be respected.” This right includes not only the right to prevent the work from initial publication, but also the right to publish and determine “the manner and time of its publication and reproduction.” Thus, writes Bluntschli:

even if the reprinting of a work by a third person, without the authorisation of its author, were not to cause financial loss to the latter and were perhaps even to secure him profits, this would still be a violation of the author’s rights, for no one has the right to make the author speak to the public against his will, that is, to expose a part of his personality, his name, and his author’s honour to the community. This can cause damage to the author’s position and reputation of far greater import than that of a missed royalty.

Compare this to US courts, which have repeatedly recognized copyright’s role in protecting the First Amendment’s “right not to speak.” 6Salinger v Colting, 607 F.3d 68, 81 (2nd Cir. 2010); see also Harper & Row, Publishers v Nation Enterprises, 471 US 539, 559 (1985). I’ve written previously about recognition of US courts of exactly the type of personal rights that Bluntschli discusses here, see Photos are worth more than the paper they’re printed on.

Of particular note is Bluntschli’s discussion of the duration of author’s rights. Recent criticisms of copyright show trouble understanding how the drafters of the US Copyright Clause conceived of author rights as property rights while constitutionally limiting their duration. Though Bluntschli is approaching the concept from a slightly different perspective, his discussion of why rights in expressive works do not last forever is both cohesive and illuminating:

Ownership lasts as long as the object which is owned exists. The author’s right, however, does not last as long as the work is in existence. At first consideration for the author’s person is certainly paramount, but with the passing of time the work falls entirely to the community and the author’s right expires.

Now, the principle is generally recognized that the author’s right in any case lasts for as long as as the author is still alive. This means that he stays in control of his communications to the public, insofar as this is still possible. However, modern jurisprudence extends this right to beyond his death and does so for good reason. For if author’s rights were restricted to the author’s lifetime, as personal rights usually are, their duration would be completely uncertain and because of this it would be much harder for the author to secure, by contract with a publisher, the property value to which he is entitled. Moreover, his family would be left out of consideration in the case of the author’s premature death, which is all the more unjust given that the public, whom the latter has done a service by his work, gains in [spiritual] enrichment, whereas the author’s family, which had probably been uppermost in his concerns, would suffer an additional loss. For this reason the author’s person is honoured in his work also beyond his death in the sense that his family (i.e. his successors) are guaranteed the benefit of the author’s rights for a certain period: namely, for as long as the author’s person is still fresh in people’s memory and the author is thereby effectively still alive in the next generation (i.e. that of his successors). It is this idea which underlies the legally specified period of thirty years after an author’s death.

Note that at the time of writing, many countries with copyright laws outside of the US had adopted a “life plus” duration of protection. And in fact, within a century, all countries save for the US and the Philippines (formerly under the control of the US) protected copyright for the life of the author plus a set period of years. 7Copyright Law Revision Study #30, “Duration of Copyright“, pg 59 (1961). The US would not adopt a “life plus” term until the Copyright Act of 1976, long after this had become the international norm.

The remainder of the chapter on author’s rights involves a general discussion of the law of author’s rights. Though I won’t go into more discussion about it, it is worth a read — it is both interesting in and of itself and remarkable in how closely the law described by Bluntschli parallels modern copyright doctrines. This provides just one reason why the 19th century jurist’s writings on author rights remain relevant today. Contemporary efforts to reform copyright law are done a disservice when they rely, as they often do, on revisionist history and an impoverished conception of author rights.

References   [ + ]

1. See, generally, Herbert Baxter Adams, Bluntschli’s Life-work (Baltimore, 1884).
2. Excerpts from the work come from the English translation provided by Bently & Kretschmer (eds), Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org).
3. See, for example, Natalie C. Suhl, Moral Rights Protection in the United States Under the Berne Convention: A Fictional Work? 12 Fordham Intellectual Property, Media, and Entertainment Law Journal 1203 (2002).
4. Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990).
5. On Property: An Essay, 100 Yale Law Journal 127 (1990).
6. Salinger v Colting, 607 F.3d 68, 81 (2nd Cir. 2010); see also Harper & Row, Publishers v Nation Enterprises, 471 US 539, 559 (1985). I’ve written previously about recognition of US courts of exactly the type of personal rights that Bluntschli discusses here, see Photos are worth more than the paper they’re printed on.
7. Copyright Law Revision Study #30, “Duration of Copyright“, pg 59 (1961).

The criticism that copyright is a “monopoly” is often bandied about. Most recently, we’ve seen it pop up in certain conservative critiques of copyright law, like Derek Khanna’s memo last November, but it is undoubtedly a recurring argument that stretches back centuries. 1See previous posts Myths from the Birth of US Copyright: Part 2, The Purposes of Copyright Law and “Anti-Copyright” Arguments, and 7 Mythbusting Copyright Law Articles for more on these arguments and their history.

The purpose of this argument is apparent; “monopoly” has historically carried a negative connotation. At times, however, the debate seems to devolve to mere semantics. It may be more helpful to look at exactly what negative effects a monopoly has on society and see how prevalent these effects are in markets for copyrighted works to see how accurate this label is. This is especially helpful because the legal and colloquial definitions of monopoly differ throughout history — the term means something different under the current Sherman Antitrust Act, to someone during the era of trust-busting in early 20th century United States, and to a jurist in 18th century England.

While certainly not the earliest expression of this argument, Thomas Babington Macaulay provides an oft-cited iteration of this critique. The following quote from the 19th century British politician (once called “the most brilliant writer of his time, but not the most correct”) 2Wraxall’s Memoirs, Littell’s Living Age (Boston 1884). comes from a speech made in front of the House of Commons during 1841. The House was currently considering a bill to extend the term of copyright duration. Macaulay made the following remarks:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. … I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. 3A Speech Delivered in the House of Commons on the 5th of February 1841, Lord Macaulay’s Speeches, pg 112 (London 1866).

Given the concerns raised by Macaulay and others throughout copyright’s history, we might say that there are three chief effects of monopoly that are particularly relevant: that it raises prices, that it prohibits others from engaging in behavior they otherwise could engage in, or that it serves as a barrier to entry in the specified market. By examining each of these in turn, we can test whether it is valid to consider copyright a monopoly, beyond the more common definitional arguments.

Does Copyright Raise Prices

In a purely competitive market, the price of a good tends toward the marginal cost of producing the good. When a firm operates under a monopoly, it can set prices above the marginal cost since it is free from competitive pressures. The result is a diversion from the optimal supply/demand curve: less consumers pay more for a good, while a firm sees higher profits, leading to less aggregate economic welfare. 4George Stigler, “Monopoly“, Concise Encyclopedia of Economics, Library of Economics and LIberty. So, if copyright is a form of monopoly, we should expect that copyrighted works on average are priced higher than non-copyrighted works.

This, however, is not necessarily the case. In a 2008 paper, economist Stan Liebowitz set out to test whether copyright is like a monopoly by endeavoring “to infer the extent of monopoly power by measuring the price increase, if any, caused by copyright,” a question that had apparently not been tested before. Liebowitz came to two conclusions.

The first, treating all observations equally, found “that copyright does not raise price and that there is no monopoly deadweight loss. Increases in copyright unambiguously enhance economic efficiency.” [Emphasis added.] The second observation weighted books by their sales and found “that copyright increases price but by a modest level which is generally about the same as typical royalty payments”, implying “that any economic rents go to authors.” 5Is the Copyright Monopoly a Best-Selling Fiction?

These conclusions should not be as surprising as they seem to the ordinary observer. Most people would note that copyrighted works show a remarkable consistency in pricing: iTunes, for example, has a very narrow range of prices for digital song downloads. This would suggest that while a single copyright owner has exclusive control over her work, this control is not monopolistic; there are such a wide range of close substitutes in the market to prevent any individual copyright owner from raising the price too far above the marginal cost.

Does Copyright Take Away Anyone Else’s Rights

Nowadays, a monopoly most often arises organically, when a firm becomes so dominant in its market that it has the ability to engage in anti-competitive behavior unless the law steps in. But in the past, monopolies were likely the result of actual government grants. It is in this sense that copyright has historically been labelled a monopoly, since prior to modern copyright laws, printers and publishers were given exclusive rights through such grants. 6See, generally, Tyler Ochoa & Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 49 Journal Copyright Society of the USA 675, 677-79 (2002).

The primary effect of grants like this was that they excluded others from engaging in conduct they were otherwise able to do, as this portion of a 1901 treatise attests:

§ 1. Definition of monopoly.— A monopoly is a license or privilege allowed by the sovereign for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before.

§ 2. Lord Coke’s definition is, “an institution by the king, by his grant, commission, or otherwise, to any persons or corporations, of or for the sole buying, selling, making, working or using of every thing, whereby any persons or corporations are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.”

§ 3. In Hawkins’ Pleas of the Crown the following definition is found: “A monopoly is an allowance by the king to a particular person or persons of the sole buying, selling, making, working, or using of any thing, whereby the subject in general is restrained from the freedom of manufacturing or trading which he had before. Monopoly differs from ingrossing only in this, that monopoly is by patent from the king, and ingrossing by the act of the subject between party and party.”‘

Under this definition, pre-copyright printing patents surely constituted monopolies.

The Stationers’ Company, operating initially under a 1557 royal charter, were granted privileges to Greek and Roman classics, not based on any privity with the original authors, but only through the caprice of the Crown. Similarly, some printers were granted privileges to entire categories of books, such as law books.

It is this monopoly that political philosopher John Locke wrote of, prior to England’s Statue of Anne, in his 1694 Memorandum Concerning Renewal of the Licensing Act:

By this clause, the Company of Stationers have a monopoly of all the classical authors; and scholars cannot, but at excessive rates, have the fair and correct edition of these books printed beyond seas. … That any person or company should have patents for the sole printing of ancient authors is very unreasonable and injurious to learning; and for those who purchase copies from authors that now live and write, it may be reasonable to limit their property to a certain number of years after the death of the author, or the first printing of the book, as, suppose, fifty or seventy years. This I am sure, it is very absurd and ridiculous that any one now living should pretend to have a propriety in, or a power to dispose of the propriety of any copy or writings of authors who lied before printing was known or used in Europe.

The Statute of Anne rectified this in 1710 by vesting exclusive rights only in the original author of a work, and originality has been the sine qua non of copyright protection in every copyright law that has followed, including the US in 1790 and France in 1793. Protection only extends to that which an author has created anew, and does not extend to anything already in existence, which would presumably be available to all to use.

Yet some continue to make the argument that copyright is a monopoly on the grounds that it restrains someone from doing something they were able to do before.

Stephen Kinsella, for example, makes the following claim in his book, Against Intellectual Property:

Let us recall that IP rights give to pattern-creators partial rights of control—ownership—over the tangible property of everyone else. The pattern-creator has partial ownership of others’ property, by virtue of his IP right, because he can prohibit them from performing certain actions with their own property. Author X, for example, can prohibit a third party, Y, from inscribing a certain pattern of words on Y’s own blank pages with Y’s own ink.

That is, by merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information, or by finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. IP rights change the status quo by redistributing property from individuals of one class (tangible-property owners) to individuals of another (authors and inventors). Prima facie, therefore, IP law trespasses against or “takes” the property of tangible property owners, by transferring partial ownership to authors and inventors. It is this invasion and redistribution of property that must be justified in order for IP rights to be valid.

The claim is superficially attractive but falls apart on closer glance. Remember, copyright only prohibits copying of original expression. One is not restrained from independently creating existing expression, no matter how closely it resembles another’s work. 7See, for example, Sheldon v Metro-Goldwyn Pictures, 81 F.2d 49, 54 (2nd Cir. 1936), “Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an “author”; but if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.”

So to say copyright “takes” some sort of right away from third parties is only correct under the most theoretical of physics. It might be easy to conceive of copyright as a restraint on one’s ability to reproduce, say, Suzanne Collins Hunger Games series of books. But it is more difficult to see how copyright “takes away” one’s ability to reproduce Collins’ next book, one she hasn’t written yet. Once she completes it, copyright vests in her the exclusive right to reproduce it, but that exclusive right is not at the expense of anyone else, unless they have a functioning time machine. It is the same as saying a law prohibiting an individual from flying by flapping his arms, or travelling faster than the speed of light, takes away a right. Copyright creates a right in the author without taking away any other’s rights.

Does Copyright Create Barriers of Entry to Potential Competitors

One final negative effect of monopoly is that it allows a monopolist to erect barriers to entry to other potential competitors, keeping the incumbent firm’s dominant position secure. The question would be, does copyright act as such a barrier to entry?

This is probably easiest to answer of all three: of course not. If Jack writes a song, that in no way affects Jill’s ability to write a song.

That’s not to say that firms producing copyrighted works have never engaged in monopolistic behavior — as with any other industry, this will occassionally happen. 8See, for example, US v Paramount Pictures, 334 US 131 (1948); US v Lowe’s, 371 US 38 (1962); Starr v Sony BMG Music Entertainment, 592 F.3d 314 (2nd Cir. 2010). But it’s important to keep in mind that this isn’t an inherent part of copyright law. Such behavior occurs independently of copyright.

References   [ + ]

1. See previous posts Myths from the Birth of US Copyright: Part 2, The Purposes of Copyright Law and “Anti-Copyright” Arguments, and 7 Mythbusting Copyright Law Articles for more on these arguments and their history.
2. Wraxall’s Memoirs, Littell’s Living Age (Boston 1884).
3. A Speech Delivered in the House of Commons on the 5th of February 1841, Lord Macaulay’s Speeches, pg 112 (London 1866).
4. George Stigler, “Monopoly“, Concise Encyclopedia of Economics, Library of Economics and LIberty.
5. Is the Copyright Monopoly a Best-Selling Fiction?
6. See, generally, Tyler Ochoa & Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 49 Journal Copyright Society of the USA 675, 677-79 (2002).
7. See, for example, Sheldon v Metro-Goldwyn Pictures, 81 F.2d 49, 54 (2nd Cir. 1936), “Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an “author”; but if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.”
8. See, for example, US v Paramount Pictures, 334 US 131 (1948); US v Lowe’s, 371 US 38 (1962); Starr v Sony BMG Music Entertainment, 592 F.3d 314 (2nd Cir. 2010).

Report links Google, Yahoo to Internet piracy sites — Leading off the new year is a new report from the USC’s Annenberg Innovation Lab which finds that Google and Yahoo run the top ad networks which finance commercial piracy sites. This article from the LA Times notes that jeans maker Levi’s was quick to respond when it discovered its brand was discovered on pirate sites, taking steps with its global ad agency to prevent future ads from showing up on such sites. The Hollywood Reporter confirms that Google has reached out to Jon Taplin, director of the Lab, in the wake of the report, and has expressed interest in solving the problem of funding the unauthorized exploitation of creators. Also be sure to check out commentary from the Trichordist, Chris Castle, and Ellen Seidler on this subject.

Most Popular Intellectual Property and Technology Law Blogs — Canadian attorney and blogger Barry Sookman has compiled a comprehensive list of popular blogs for those interested in IP and technology. The list breaks down the blogs by geographic focus and includes sites that concentrate on IP areas beyond copyright, like patents and trademarks. An incredibly useful list for active readers and practitioners of this area.

Warner Bros. Vs. Custom-Built Batmobiles: The Legal Battle Continues — Na na na na na na na na lawsuit. Eriq Gardner reports on an ongoing action by Warner Bros, who, through their subsidiary DC Comics, own the rights to Batman, and a maker of a replica Batmobile. Last year, the court denied a motion to dismiss copyright claims, saying it was possible that certain aspects of the auto could be protected under copyright law. Now, both parties have moved for summary judgment on the copyright issues, as well as trademark and other claims.

Oral Argument in the Second Circuit in Aereo Suggests that a Reversal Is in the Offing — Andrew Berger examines last month’s oral arguments in front of the Second Circuit (with a link to the transcript) in WNET v Aereo, involving internet broadcast retransmitter Aereo. The company argues that copyright liability should be dependent on what technology one uses to reproduce and transmit television programs. Berger concludes that the Second Circuit “is likely to find a way to reverse” the district court’s denial of a preliminary injunction against Aereo.

The ‘Digital Economy’ in 2012: A big noisy hole where money should be — Andrew Orlowski reflects on the past year and developments in technology and communications. “The most interesting development of the year was how the value of the individual is being rediscovered. In Nick Harkaway’s book, he points out that individual privacy rights – the ability to own your own data, or ‘habeas data’ as it’s been called – and individual property rights are one and the same. We need ‘an internet that forgets’ and an internet where value is returned to the creator. Both require the same thing: individual ownership to be defended and asserted.”

What Turned Jaron Lanier Against the Web? — The Smithsonian has a great profile/interview with Jaron Lanier this month. Highly recommended; for readers unfamiliar with Lanier, check out the article, and follow it up with a read of his 2010 book You Are Not a Gadget, a nuanced critique of the technological determinism that influences many strands of copyright skepticism today.

Welcome back! I hope all my readers have had a wonderful holiday season and a happy new year. Now that the holidays are over, Copyhype is back to its regularly scheduled programming. I wanted to start things off with a quick look back at 2012 and a quick look forward at 2013.

The following were the most read Copyhype stories during 2012:

Hey, what happened to Wikipedia? (An intro to SOPA)

Was Hollywood built on piracy?

7 mythbusting copyright law articles

Though not the most popular, I personally enjoyed writing the following posts in 2012 and don’t mind highlighting them once more:

The genius of the Hunger Games

Myths from the birth of US copyright part 1 and part 2

Finally, a special shout out to my guest contributors, and some of their wonderful posts, including:

Devlin Hartline’s Nimmer changes his tune: ‘Making available’ is distribution

And Chris Ruen’s The Net Fail Part 1 and Part 2.

A Preview of 2013

The next year already promises plenty of legal and legislative developments in copyright law, a few of which I want to highlight.

The Supreme Court will release its opinion in first sale case Kirtsaeng v John Wiley. I’ve written about Kirtsaeng before, see also More on Kirtsaeng v John Wiley, What Kirtsaeng Won’t Answer, The United States “Odd” Kirtsaeng Argument, and Overturn Quality King? The Court is likely to release its opinion sometime between February and June.

The popular SCOTUSBlog does not include any other copyright-related petitions on its petitions to watch list (the list has a strong track record of selecting which petitions are granted by the Court), but there are several copyright petitions I’ll be keeping an eye on, including the one in Jammie Thomas-Rasset v Capitol Records, dealing with due process review of statutory damages, and Library of Congress v Intercollegiate Broadcasting System, which involved an Appointments Clause challenge to Copyright Royalty Judges (though a cert petition there has not been filed yet). Check out my most recent posts on these lawsuits: End of the Road for Jammie Thomas-Rasset? and Copyright Royalty Board Unconstitutional.

In the lower courts, a group of cases involving broadcast television retransmission and the impact of the Second Circuit’s 2008 Cablevision decision are wending their way through the judicial system. Leading the pack is Aereo, where oral arguments were heard in front of the Second Circuit late last November for an appeal of the district court’s denial of a preliminary injunction, meaning a decision could come later this year. See Aereo takes its tiny antennas to Opposite Town. And just last week, on the west coast, a federal district court came to the opposite conclusion and granted a preliminary injunction against FilmOn, a similar service.

Meanwhile, a set of cases against Dish Networks relating to its Autohop service are in their early stages. The furthest along involves Fox, which a few weeks ago appealed the denial of a preliminary injunction by a New York district court. I wrote a background on these cases at Skipping commercials isn’t infringement, but copying is.

A lawsuit against YouTube for widespread infringement during its early days is back at the district court level, after the Second Circuit ruled on a number of DMCA issues this past April. Most recently, YouTube moved for summary judgment against the various plaintiffs.

Little has been said about Hotfile so far, but developments should be expected this year in the lawsuit filed by major motion picture studios against the filelocker. A ruling on dispositive motions is currently pending in a Florida district court, and a trial date is tentatively scheduled for March. See Copyright Liability for Filelockers: Disney v Hotfile.

On the criminal side, expect slow movement on the US case against Kim Dotcom and Megaupload. An extradition hearing has recently been pushed back to no earlier than August 2013. My last post on this topic came last July in a Megaupload Megaupdate. Be sure to check out TorrentFreak for breaking coverage of every single thing Dotcom tweets.

In Congress, it would appear that the major issue this next year will be royalty rates for webcasting. The next ratesetting proceeding at the Copyright Royalty Board, to set rates for 2015-2020, is fast approaching. Last fall, Pandora backed the Internet Radio Fairness Act, which, among other things, would have changed the standard used by the Board to set rates. At a hearing in November, the House Judiciary Committee appeared skeptical of the bill’s approach, but also expressed a desire to take a broader look at the issue of digital performance of sound recording royalties, seemingly frustrated that the compulsory licensing scheme has required so much legislative attention over the past decade. Some members of the Committee also hinted that the issue of a broader public performance right for sound recording owners was on the table, something that has eluded such copyright owners for decades. See A Brief History of Webcaster Royalties for more background.

What else can we expect from Congress? There have been rumblings of a renewed push for orphan works legislation, and recent events from several conservative-leaning institutions hint at increased attention toward general copyright reform — aided by current European Commission efforts to modernize copyright law.

Much more is obviously in store for the upcoming year. Don’t forget that you can subscribe to Copyhype’s RSS Feed, sign up for email updates, follow me on Twitter, or Like me on Facebook. Here’s to 2013!

I want to thank all my readers for another great year of Copyhype and wish everyone the best of the holiday season! I will likely not be blogging over the holidays, but I’ll be back afterward. That is, unless the archaeologists who misinterpreted Mayan writings were correct that the world will end today.

2012 Music Memoriam — Paul Lamere has compiled a list of all the musicians the world has lost in 2012. They will be missed.

The Right Decision: A Treaty Spurned — In international news, last week the US withdrew from a proposed global telecommunications treaty being drafted at the UN. Here is a brief statement from the RIAA supporting that move. “Vesting authority in the ITU, however, is not the solution, particularly given the overt interest of some countries to regulate the Internet in order to censor political speech or to otherwise limit the legitimate expression of views.”

Down by Law: The Year Downloading Took a Dive — SPIN Magazine notes that 2012 continued the recent declining trend of unauthorized downloading, due to a combination of more effective legal enforcement and the development of legitimate online outlets. The article does note, however, that authorized downloading seems to be in decline as well, as streaming sites grow increasingly popular.

Fox Appeals Dish Network Decision; Asks for Restraining Order Against AutoHop Service — As expected, Fox has appealed a California court’s decision to deny a preliminary injunction against Dish Network for its AutoHop service, one which Fox argues infringes on its copyright. The Hollywood Reporter has the full story, as well as a copy of Fox’s opening brief on appeal.

IP and Instagram–a Teaching Moment Perhaps? — The internet was abuzz earlier this week when popular photo sharing site Instagram implemented changes in its terms of service that raised concerns about what it would be able to do with users’ photos. Instagram has since backed off in response to the outcry, but the reaction has led Ellen Seidler to wonder if this would lead to increased recognition of the importance of copyright. Seidler notes that one comment, saying “My photos will not sell without my knowledge and compensation.  I spend time on my pictures” is “essentially what content creators have been saying for a long time in rebuttal to claims that online piracy is OK.”

High Volume Of Google’s Copyright Removal Requests Reveals Magnitude Of Piracy Problem, Onerous Burden On Creators — CreativeAmerica on Google’s latest stats, showing it removes over 2.5 million links to infringing content a week: “Google clearly recognizes how onerous the processing of removal requests is for them, but what about the content creators and owners who now spend significant resources and countless hours monitoring Google search results for illegal links to their stolen creative works – only to have another one pop up again? What about independent or up-and-coming filmmakers who don’t have the means to make sure stolen copies of their work are promptly removed?”

It’s Time for Artists to Fight Piracy as Vigorously as They’ve Challenged Pandora — “This is why it’s time for artists to band together to set the story straight. Don’t leave it to the few brave enough to speak strongly on the matter. There needs to be a large, coordinated effort by bands big and small to tell their story–to sign a letter to fans explaining how devastating piracy is to their ability to make music for a living (or at all).”

Piracy turned my genuine love for music into just another fidgety online addiction. It was an exercise in hyper-consumption: quantity over quality, breadth over depth, entitlement over ownership.

Freeloading: How Our Insatiable Hunger for Free Content Starves Creativity, by Chris Ruen

In Freeloading: How Our Insatiable Hunger for Free Content Starves Creativity, Chris Ruen — who previously offered a two part excerpt on this site — recounts his conversion experience from filesharing. While others writing on the subject have approached it from a legal or business perspective, Ruen takes a moral approach, critically examining the effects that everything for free without consequence has had on creativity and culture. But this should not be confused with moralizing, lest you think the book is 255 pages about how unauthorized downloading “is bad, mmkay.” Instead, Ruen explores the nuances of “freeloading” — his term for unauthorized downloading — in the broader context of an age where our real lives increasingly merge with our online selves in the same vein as media critics like Marshall McLuhan and Jaron Lanier.

In particular, Ruen turns to those most affected by the effects of the digital age — the musicians and those in the music industry themselves. The middle third of Freeloading is devoted to interviews with these individuals, and, in my opinion, is what should put the book on the must-read list of anyone in the copyright sphere. The interviews are presented in the subjects’ own words, unfiltered, unedited, and at length. Ruen presents an impressive lineup: Andy Falkous, frontman for Future of the Left. John Beeler, an employee at Asthmatic Kitty Records. James Bradley, owner of Brooklyn record store Sound Fix Records. Matt Wishnow, founder of indie distributor Insound. Ira Wolf Tuton, bassist for Yeasayer. Chris Swanson, co-founder and head of the Secretly Canadian record label. Joe Gaer, co-owner of the Social Registry record label. Todd Patrick, DIY concert promoter. Craig Finn, lead singer of the Hold Steady. Adam Farrell, VP of marketing at the Beggars Group. Kyp Malone, TV on the Radio.

The anarchic idea that, “Oh you take away the monetary system and everything will be, like, groovy”—it’s just not true! There’s always gonna be a hierarchy, no matter what. Okay, no money for music, no money to artists, painters, sculptors…. The idea that all of a sudden there’d be all this new art? No, there wouldn’t be! People are doing as much as they can already.
Joe Gaer

Ruen begins with a look back at the last ten or so years, dubbing it the “Decade of Dysfunction.” It begins with Metallica taking on Napster in 2000, where drummer Lars Ulrich, though correct, struck the wrong tone to many, resulting in a PR disaster that created the narrative that this was about cool, freedom loving digital natives versus out-of-touch, greedy dinosaurs. This narrative would be solidified a few years later when major record labels began to sue individual filesharers. As Ruen explains, academics like Lawrence Lessig were first to capitalize on this narrative. They were followed by “digital determinists” like Cory Doctorow, who argued, basically, that the internet made morality obsolete. Finally, the web hype-men like Chris Andersen and Mike Masnick came, building on the narrative and promising a new way forward for artists and creators. The “Decade of Dysfunction” culminates, for Ruen, at SOPA. He writes, “Years of haphazard debates, misunderstanding of the issues and demonization of rights holders had left a population of Internet users who were vulnerable to propaganda from a technology industry that was (in the form of search engines and social media) facilitating what felt like their lives.”

The wisdom of copyright is to focus the incentives, like a laser, upon the creative work itself. If our shared interest is the creation of more and better art, then why take away the fundamental legal right that incentivizes it, while setting artists off on a wild goose chase to find the best marketing scheme rather than to write the best song? The only true way of “adding value” to art is to make better art of higher quality.

The latter third of Freeloading is devoted to where we go from here. Unlike some, Ruen is optimistic that the ship can be righted and that it is both worthwhile and necessary to include the ethical and moral implications in any such discussion. And though Ruen argues for the continuing vitality of copyright law, he by no means believes “more copyright is better” (which, based on my experiences, seems more strawman than an actually held view). One of his recommendations toward the end is to limit the term of copyright to fifty years — an idea I personally disagree with on utilitarian and other grounds. But, as with any book like this, the idea is not to aim for one-hundred percent agreement but to provoke thought, and at this, Ruen succeeds.

Highly recommended.

As we approach the meat of this century—so exciting yet equally uncertain—the best chance we have for avoiding the declinist tendencies of Digital Determinism is to hold on, with passionate fury, to the principle that human creativity is valuable and sacred. When we devalue creativity, when we trample upon the rights of artists to distribute their work as they please, we devalue ourselves and trample upon our own right to a better future.

The Creative Commons organization is celebrating its 10th anniversary this week.

Founded in late 2001 by Lawrence Lessig, Hal Abelson, and Eric Eldred (of Eldred v Ashcroft fame), the organization sought a techno-utopian “legal insurrection” that would “provide an alternative to traditional copyrights by establishing a useful middle ground between full copyright control and the unprotected public domain. Today, the organization struggles for relevance as interest in the principles it embraces continue to decline. 1See, for example, Anil Dash, The Web We Lost (Dec. 13, 2012); Brian Proffitt, GPL, copyleft use declining faster than ever, ITWorld (Dec. 16, 2011).

Perhaps the most visible output of the Creative Commons organization are its various licenses. These licenses are drafted by, but not administered by, the Creative Commons organization. All the licenses require attribution, or credit, of the original author by licensees. The six licenses offer some combination of whether or not the creator allows commercial usage of her works, derivative uses, and a “share alike” provision (where downstream uses must be licensed under the same terms as the original license). Creative Commons also provides marks to indicate that a creator waives all rights to her work, or that a work is in the public domain.

The Creative Commons licenses are just one of many public copyright licenses. Such licenses owe their origins to, and are most often used for, free and open source software. Though there are distinctions between “free”, “open source” and “public”, it is likely that the majority of such licenses are public. 2See Jordan Hatcher, Open Licenses vs Public Licenses, Open Knowledge Foundation Blog (Oct. 15, 2010), “I haven’t done a full survey, but the majority of open licenses (in terms of popularity) probably also fit the definition of public licenses”. The distinctive feature of public copyright licenses — what sets them apart from negotiated or private licenses — is that permission to use the work under the terms of the license is given ex ante to anyone in the public. In this fashion, public copyright licenses are similar to “clickwrap” or “browsewrap” license agreements.

But the organization, which has raised around $30 million over the past decade, 3Tax returns from 2002-2010 show total contributions and grants of $25,994,142. Though I was unable to find more recent returns, adding the average yearly contributions and grants for two years to this total would put the estimated total through 2012 at $31,770,618. does more than just draft these licenses. Creative Commons is involved with a number of initiatives to provide greater public access to scientific research, educational tools, and government data.

But today I want to focus on the licenses and how they have been handled in courts.

Creative Commons in Courts

The Creative Commons wiki includes a page devoted to case law from all over the world involving Creative Commons licenses. Several of these cases only involved Creative Commons licenses collaterally. 4These include SGAE v. Luis and SGAE v. Fernandez. One would note the small number of cases across the globe in the past 10 years. The dearth of litigation over Creative Commons licenses should not be surprising, as their very nature suggests that the majority of licensors are uninterested in pursuing legal remedies for uses of their works.

Commentary on cases involving Creative Commons licenses seem to indicate a concern over whether courts would have trouble enforcing the terms of the licenses, but as the cases below indicate, courts have had no such trouble, treating the licenses the same as any other copyright license.

Curry v. Audax — In one of the first cases confronting the enforceability of a Creative Commons license, a Dutch court enjoined a tabloid in 2006 from future reproduction of photos taken by Adam Curry, a former MTV VJ, which had been uploaded to his Flickr account. The BY-NC-SA license was accepted as valid by the court without discussion, and despite the tabloid’s argument that it was misled by the notice “This photo is public” accompanying the images. However, the court denied monetary damages to Curry. It found that the tabloid had failed to disclose a copy of the Creative Commons license with the photo, but since it had included a traditional copyright notice (“Photos © Adam Curry”), there was no evidence of harm arising from the failure of disclosure. The court also did not find harm arising from the commercial use of the photos in part because the photos are freely available online.

Jacobsen v. Katzer — Though this 2008 US case did not involve a Creative Commons license — it instead dealt with the free and open source Artistic License — the Federal Circuit’s decision is likely applicable to Creative Commons licenses. Indeed, the court referred to CC licenses at several points in its opinion. What’s notable about this decision is that it is one of the few court decisions involving public licenses that includes substantive discussion of their enforceability. Here, Jacobsen had written software that allowed model train enthusiasts to control their trains via computer and released the software under the Artistic License. Katzer was alleged to have copied portions of this software for his own non-free software program in violation of the terms of the License. Jacobsen moved for a preliminary injunction against Katzer, which was denied by the District Court after it held the violation was a breach of contract rather than copyright infringement, which creates no presumption of the irreparable harm necessary for a a preliminary injunction. The Federal Circuit reversed the District Court’s ruling, finding that violating the terms of the Artistic License was copyright infringement, not breach of contract. Broadly speaking, this holding is better for creators, as the remedies for copyright infringement better align with their goals.

Chang v. Virgin Mobile — The black eye of the Creative Commons organization, this litigation began when mobile phone company Virgin Australia used a photograph taken from Flickr in an advertising campaign. The photo was of a minor girl and uploaded by her church counselor, who published it under a CC BY license. Creative Commons itself was named in the complaint for negligence regarding its license, but they were voluntarily dismissed from the action. The District Court ultimately dismissed the suit for lack of personal jurisdiction. Nevertheless, the suit raises significant questions. Chang alleged invasion of privacy alongside copyright infringement; had the suit gone forward, Virgin may have faced liability under this cause of action even if it had complied with the CC license. I say “black eye” because this case highlights the ease one may find one’s works being used contrary to one’s wishes under a CC license. In addition, it showcases the pitfalls of the license, namely, the absence of any help from the Creative Commons organization and the lack of a forum selection clause.

Gerlach vs. DVU — A German court granted a preliminary injunction in October 2010 against a “German far-right” political party for copyright infringement. 5See German court enforces Creative Commons license for more background. The copyright owner had uploaded a photo to Wikipedia under a CC BY-SA license. The political party copied the photo onto its own website but did not include attribution or a copy or link to the license deed. The court accepted the enforceability of the Creative Commons license without comment. The Creative Commons wiki notes that presumably, had the political party complied with the license terms, the use would have been legal.

Lichôdmapwa v. L’asbl Festival de Theatre de Spa — In October 2010, a Belgian court held a theater company liable for infringing the copyright of a musical work licensed under Creative Commons. As in the above case, the Judge upheld the validity of the CC BY-NC-ND license without discussion, noting only that Dutch, Spanish and American courts have upheld their validity. It found that the theater had violated three of the license’s terms: the use was commercial since the company used the work in an advertisement, the company had modified the work contrary to the prohibition on derivative works, and the company had failed to provide attribution.

Avi Re’uveni v. Mapa inc. — An Israeli court, in 2011, found a book publisher liable for copyright infringement of photographs uploaded to Flickr and released under a CC BY-NC-ND license. However, it appears (I’m unable to locate an English version of the opinion) that there was no discussion of the license’s text; according to one report, the court concluded “It was simply an infringement of copyright. Period.” What’s more, the court noted that failure to attribute was a violation of moral rights, making any fair use defense inapplicable.

No. 71036 N. v. Newspaper — This little discussed case originates from a Rabbinical court in Israel in 2011. I’m not familiar with Rabbinical law, and no English translation of the court decision seems to be available, so I’m relying solely on the Creative Commons wiki for the facts. The dispute here was between a photographer who had posted photos online under a CC BY-SA license and a newspaper which had reprinted them without attribution. The court treated the CC license as any other copyright agreement and found that the newspaper was liable because of a religious/moral obligation to adhere to the license’s terms and the copyright laws of Israel.

Using Creative Commons licenses

Should creators use Creative Commons licenses? The idea behind the licenses is a good one: copyright gives creators the choice of how and when to exploit the products of their labor. But unfortunately, despite the ease in using the licenses — or perhaps because of this ease — creators and users should take note of some concerns raised about them that urge caution.

Noted copyright scholar Jane Ginsburg raises some of these concerns in her 2009 article Public Licenses: The Gift That Keeps on Giving. In 2007, ASCAP addressed some of the defects in the licenses in its article 10 Things Every Music Creator Should Know About Creative Commons Licensing. Others who have examined these licenses include the Copyright Alliance in What is a Creative Commons License? and attorney Chris Castle, who has written on specific concerns for musicians and co-writers.

Chief among the concerns raised in these articles is the fact that Creative Commons licenses are irrevocable, that the licenses allowing derivative works remove the ability of copyright owners to prevent objectionable derivative works (for example, modification of works by political parties or interest groups that a creator disagrees with), and the fact that the Creative Commons organization merely provides licenses and does not help in any way with enforcement or administration of the licenses. Other licensing entities and collecting societies do indeed monitor uses of specific licenses they administer to ensure compliance and administer royalties.

There are concerns for users of Creative Commons licenses as well. As noted above, the licenses have a number of terms, like the requirement that the license language itself is copied or linked to, that many currently do not comply with. And several of the cases dealing with CC licenses have involved situations where these conditions have not been met. Second, the onus is on the user to ensure that the work is indeed licenseable. Though the terms of the CC licenses include a warranty that the licensor is authorized to release the work under the license, the organization itself does not verify this. There is nothing stopping someone from slapping a CC license on a work without authority, or ensuring that any underlying works can be licensed in such a manner. Finally, a CC license only covers copyright. Works may require other permissions — for example, photographs or videos that include people may implicate rights of publicity or privacy that are not covered by the license.

In the end, creators should approach Creative Commons licenses with the same amount of diligence as any other deal offered to them. Whether or not the license is appropriate is a decision for the individual creator.

References   [ + ]

1. See, for example, Anil Dash, The Web We Lost (Dec. 13, 2012); Brian Proffitt, GPL, copyleft use declining faster than ever, ITWorld (Dec. 16, 2011).
2. See Jordan Hatcher, Open Licenses vs Public Licenses, Open Knowledge Foundation Blog (Oct. 15, 2010), “I haven’t done a full survey, but the majority of open licenses (in terms of popularity) probably also fit the definition of public licenses”.
3. Tax returns from 2002-2010 show total contributions and grants of $25,994,142. Though I was unable to find more recent returns, adding the average yearly contributions and grants for two years to this total would put the estimated total through 2012 at $31,770,618.
4. These include SGAE v. Luis and SGAE v. Fernandez.
5. See German court enforces Creative Commons license for more background.

The Constitutional and Historical Foundations of Copyright Protection — Debates over copyright have been in vogue recently in DC. This week, the Center for Individual Freedom released a paper from legal heavyweights Paul Clement, Viet Dinh and Jeffrey Harris exploring the origins of copyright in the US, which unfortunately have often been obscured in these debates. As the paper explains, “copyright was seen not merely as a matter of legislative grace designed to incentivize productive activity, but as a broader recognition of individuals’ inherent property right in the fruits of their own labor.”

Music and Copyright in the Digital Era: DAVID BYRNE in conversation with CHRIS RUEN — Last week, the New York Public Library presented a conversation between Talking Heads frontman and author David Byrne and Chris Ruen (whose new book, Freeloading, is out now and who contributed guest posts this week here). Audio of the fascinating discussion is currently available, with video expected soon.

The “Common Law Property” Myth in the Libertarian Critique of IP Rights (Part 1) — Legal scholar Adam Mossoff responds to a certain critique of copyright that claims copyright is somehow different from other forms of property because copyright was established by statute while other property arose organically through the “common law”. On the contrary, many of our most fundamental forms of property were created through statute, like the Statute Quai Empotores of 1290, which hastened the end of feudalism by creating freely alienable title to land. Mossoff follows up with a Part 2.

How music recommendation works — and doesn’t work — Brian Whitman, co-founder of music data company the Echo Nest, presents an excellent overview of music recommendation, the current state of the art, and what lies ahead.

Attorney Don Passman on the Future of Digital Music  — ASCAP’s Etan Rosenbloom sits down to chat with Don Passman, author of the widely popular and useful All You Need to Know About the Music Business, which was recently updated to its eighth edition.

Mythbusting Part 2: How Important is Income from Live Performance? — The Future of Music Coalition presents data from its study on artist revenue streams to dispel a common myth. Many assume that touring and live performances make up the bulk of musician income, but the FOMC has found that, on average, this revenue stream only accounts for about 28% of income. According to the FOMC, while some artists reported higher percentages, touring is rarely the sole source of income for any musician. The non-profit group adds, “Touring itself has its own caveats; touring costs money, it’s not very scalable, and it requires constant output. And, for some musicians, playing live is simply not part of their career structure.”

Invasion of the cyber hustlers — “Disruption”, “openness”, “crowdsourcing”, “sharing”, “social”. Author Steven Poole, writing at the New Statesman, critiques the “cybertheorists” who endlessly spout these buzzwords. “What sells, to the cyber-fanatic’s intended audience, is ludicrous utopian fantasy, silicon Panglossianism.”

The following is a guest post from author Chris Ruen, who you can follow on Twitter @fakeChrisRuen. It is is an excerpt from his new book, Freeloading: How our insatiable hunger for free content starves creativity, available from Amazon (they have a nice long sample for your perusal) or direct from his US Publisher, OR Books. The book will also be released in Australia this March.

Read Part 1


The $300,000 grant was reported in a little read article by the Boston Globe which revealed other interesting facts of the SOPA blackout. Elizabeth Stark, a Stanford University Internet activist, is paraphrased in the article as noting that Fight for the Future “was a key participant” in the January 18th blackout and that the group built “much of the technology that made it possible.” But Fight for the Future’s “most significant contribution to the effort,” according to the Globe, “may have come during a Nov. 9 meeting about the antipiracy legislation that was held at the Mountain View, Calif., headquarters of Mozilla. Taking part that day were tech companies, advocacy groups, and academics about the antipiracy legislation. Cheng and the group’s other cofounder, Holmes Wilson, 32, said they called in to the session to pitch the idea of a Nov. 16 protest, which also called for companies and organizations to close down their websites.” 1Michael B. Farrell, Small Worcester Group Plays Large Role in Online Protest, Boston Globe (Jan. 27, 2012).

This early November meeting, facilitated by Mozilla, one of Silicon Valley’s most visible businesses, never made it into the popular history of the SOPA blackout. Nor was it widely known that both Silicon Valley industry and their complements from the nonprofit world were strategizing so early. It is unclear which organizations were or were not involved, but Elizabeth Stark admitted on a 2012 panel on Internet activism that Google and Reddit joined Fight for the Future in the meeting at Mozilla. 2“Defending the Internet Panel 2/4 – ROFLCon 2012″ at 14:30 (YouTube). So what really happened at this meeting and who was there? Was it true that, far from organically originating from Reddit in January or Wikipedia in mid-December, the idea of a blackout really came from a month-old nonprofit with a questionable source for its hundreds of thousands of dollars in funding?

The obscure website JammerDirect interviewed Fight for the Future co-founder Holmes Wilson for their podcast, The Dose, on January 25th 2012, one week after the conclusive SOPA blackout. Wilson was forthcoming on where the idea for a blackout came from and how that idea was brought to the strategy meeting on November 9th. 3Holmes Wilson, One of the Creators of the SOPA Strike Movement, is this week’s special guest on The Dose, Jammer Direct (Jan. 25, 2012).

“The strike movement itself started in late October—early November, right after SOPA came out,” Wilson said. “When SOPA came out it was just way worse than anyone expected” and Fight for the Future started speaking by phone to the Electronic Frontier Foundation and Public Knowledge. Wilson described his reaction to SOPA and what he feared it would mean:

I thought about it like, ‘We were going to wake up and go to the same sites we use every day and see some stupid message from the government telling us we can’t visit those sites anymore because we were Americans. Whatever we do for the campaign has to be based off of that feeling’… The idea for the protest was for sites to run one pop-up simulating the site being blocked… We started shopping it around to sites we were close to and organizations saying, ‘We think this is the best way to respond to SOPA and are you in?’ One of the key moments was—when working with a close friend of ours, Elizabeth Stark who is at Stanford, and has been into the free culture and remix culture movement for ages now—she worked with us to organize a meeting and call at Mozilla, the folks who make Firefox, at their headquarters in Mountain View a week before the protest. And that was really pivotal in getting the attention of Mozilla and a few other large Silicon Valley organizations… The meeting was basically all these groups in DC being like, ‘This is worse than anything we’ve ever seen and there is nothing we can do to stop it. This thing will pass unless we all band together and do something crazy.’ And the folks in Silicon Valley were like, ‘This wasn’t even on our radar.’… Nobody knew about it. And on that call we said, ‘Here’s a proposal. We should block out our sites and direct people to email Congress.’ Then one of the folks at Mozilla came up with the idea of blacking out your logo as a secondary ask to sites that can’t throw a pop-up on their page the whole day…And we were like, ‘That’s an awesome idea, we’re gonna run with that too.’ We put up a page the next day or that Friday, AmericanCensorship.org, and included instructions on how to participate.

Yes, the blackout idea came directly from the MDF-funded organization and was presented to the inside players of Silicon Valley over one month before Jimmy Wales mentioned the blackout idea on Wikipedia. The day after the meeting organized by Mozilla, the veneer of populism was already being applied to the initiative of a handful of dedicated interest groups which derive their funding from Silicon Valley companies. Fight for the Future tweeted: “Internet fights back! PK, EFF, FFTF, FSF, OC to stop #protectip #sopa Join us 11/16 to help to stop worst bill,” linking to Fight the Future’s website, AmericanCensorship.org. “PK” stood for the group Public Knowledge; “EFF” for Electronic Frontier Foundation; “FFTF” for Fight for the Future; “FSF” for Free Software Foundation; and “OC” for Open Congress, an organization also run by the founders of Fight for the Future.

According to Fight for the Future, these five groups were “the Internet”—and “the Internet” was “fighting back.”

As for Reddit, though involved in the Mozilla meeting according to Elizabeth Stark, they couldn’t so easily begin advocating for SOPA protests, as they were a bottom-up community of users, predicated on a belief in the wisdom of crowds. As some have suspected, Fight for the Future actively posted articles trying to get the Reddit community involved. Holmes Wilson admitted to placing links on the site. He did so under the username “holmesworcester.” 4Overview for holmesworcester, Reddit.

And we got on Reddit that Friday. And it was tricky to get on Reddit even—Reddit is just this beehive of anti-SOPA sentiment but at that point really wasn’t woken up to it. I remember sitting down at the keyboard and thinking, ‘Okay what will get people’s attention?’ The post I wrote was something like, ‘The MPAA will soon have the power to block American’s access to any website unless we fight back’—comma—‘hard!’ And that was the post—that post got to the top. And that linked directly to the protest site (Fight for the Future’s AmericanCensorship.org). So it started going viral. It started going viral on Tumblr at that point with people using the code (provided by Fight for the Future) to black out their titles and a lot of big Tumblr sites doing it. We started to see a lot of sites sign on. I think in the end five thousand sites signed on. And early in the next week we started to get some big sites. I forget exactly what happened with Reddit but at some point they said they would do it. We reached out to the folks at 4chan—4chan is awesome. And Mozilla, the folks who were on the call at Mozilla hustled all weekend—you know, Mozilla is a big organization and for them to take a step that pointed their millions of visitors to their start page to a political action, that’s something they never had done before. That was unprecedented and the folks at Mozilla, they took that on and took it up the chain and made it happen… Then BoingBoing and Cory Doctorow there who is kind of an old friend of ours and has worked with us a lot on different stuff and has always been a supporter of projects we have worked on. I mean, he, he—they went above and beyond for us. The Reddit folks did. The conversation started with Wikipedia at that point, too. We said, ‘Can Wikipedia do this?’ and Wikipedia said, ‘We don’t control that.’

So, just as they had done to garner viral attention on Reddit, Fight for the Future posted on a Wikipedia forum asking about the site participating in the November 16th anti-censorship protest. “And we did that,” Wilson said, “and it didn’t go anywhere immediately but then Jimmy Wales restarted that conversation and it started to move forward. That was in mid-December.” Some who questioned how grassroots the SOPA protest on January 18th really was point to reports in late December that NetCoalition was considering the “nuclear option” of a blackout. But it is clear that planning between opaquely-funded nonprofit organizations and the very companies represented by NetCoalition were in cahoots long before that date and, more than anyone, Fight for the Future engineered the strategy and organized the blackout. As Holmes Wilson described on The Dose, “The big surprise of that November protest—which was awesome—was that Tumblr called us in the middle of the day to warn us that they were either about to or already sending tons of traffic our way.” According to Wilson, Tumblr alone directed 87,000 calls to congress on November 16th and posted an information page on the protest with “perfect talking points.” With the success of the November 16th protest, Fight for the Future recognized the need for a follow-up protest:

And the Round Two will let us go from all the people who participated to an even wider network and say, ‘Okay guys, now is the time.’ And in the end what really ended up happening was once the idea got out there, the idea itself, sort of took on a life of its own, where the seed we planted at Wikipedia—that started to go—into a real discussion that was engaging the whole community moving forward. There must have been a similar discussion going on at Google, internally. And everybody started talking about, ‘When this really gets close to happening, what are we gonna do?’ And Reddit called for it. They said, ‘We’re going dark on the 18th’ and Wikipedia was at the point at which they would almost decide—I think they made the final call the night before. And all the pieces were in place. And we were just like, ‘Okay this thing is happening. We’re just going to make a website to coordinate, that we can use to list all the sites that are participating and all the tools you can use to participate.’ Basically just get out of people’s way and give them the tools they need to do this… So yeah, that’s the story.

There are some reasons to be hopeful about the future of Internet activism after the SOPA protests. They proved that it was possible to mobilize millions of people thanks to the radical efficiency of digital communication. And though the blackouts would never have happened or had their effects without the dedicated work and organization of Fight for the Future, there were also smaller protests that were more grassroots in nature. But Fight for the Future’s deft strategy was to quickly co-opt any genuinely grassroots protest against or criticism of SOPA and then use it for their own advantage. When a long-time user on Reddit wrote to the community saying they were going to transfer dozens of their domains away from GoDaddy, in protest of the company’s support of SOPA, the community of users rapidly joined in the boycott, which quickly led to GoDaddy reversing its position.

On December 22nd, the day of the boycott post, Fight for the Future tweeted: “Not an ad, but if u switch from @godaddy to another registrar / host, some companies will give u anti-#SOPA discounts.” By December 23rd, they posted a new webpage, GoDaddyBoycott.org which facilitated that protest. That Fight for the Future webpage soon made its way to the original Reddit post, left at the bottom of the post for anyone who wanted to participate.

But the sad truth of the SOPA protests, led for months by Fight for the Future (and enabled by whoever the hell was funding them), was that the actions of millions were fueled by lies and propaganda. As Holmes Wilson said on The Dose, recounting when he was trying to get the Reddit community to run with American Censorship Day:

‘Okay what will get people’s attention?’ The post I wrote was something like, ‘The MPAA will soon have the power to block American’s access to any website unless we fight back’—comma—‘hard!’ And that was the post—that post got to the top.

We should take note of Wilson’s acknowledgement that he was struggling to get people’s attention. The more desperate one is to get attention, rather than to accurately communicate what one believes a problem is, the more one ventures into the realm of sensationalist propaganda. While it is possible to find attention-getters that are nonetheless truthful, that is not what Wilson did and it is not what Fight for the Future has done or continues to do. Characterizing SOPA as the MPAA (and only the MPAA) having the unequivocal power to block access to “any” website was a misrepresentation (or an outright lie) that Wilson ought to be embarrassed about. Through the Private Right to Action (a provision I did not support), SOPA gave all creators the right to bring forth evidence that a site was “dedicated” to infringement and had reasonable knowledge of the infringement happening on their networks. That isn’t “any site,” that is a site that may be guilty of illegally exploiting the legal rights of artists or businesses. But such distinctions did not suit the goals of Fight for the Future, so they went on spreading baseless propaganda that frightened well-meaning Internet users into participating in a blackout under false notions.

As Wilson admitted, Fight for the Future was interested in results, not the truth, and they were willing to do whatever it took to sufficiently scare people into actions that benefitted their interests, and perhaps those of whomever was funding them. The slick video produced by Fight for the Future, called “SOPA/PIPA will Break the Internet,” a fiction in itself, relied upon conflating the past mistakes of the entertainment industry with a bill that sought to protect all creators’ rights. The video presented an entirely false choice between copyright enforcement and popular social networking sites continuing to exist. They presented “Internet freedom” as an inalienable right that the RIAA was trying to strip away, concealing the truth, that the imperfect bill’s very aim was to protect human rights and legal rights of artists not be exploited by unsanctioned business. They deceived the public that SOPA was a “censorship” bill, clearly a talking point they had settled on early in the planning of the protest. The SOPA/PIPA video, filled with deception and fear-mongering, was eventually watched by over four million people.

Fight for the Future produced an infographic, also filled with propaganda. 5SOPA: The Internet Blacklist Bill, Americancensorship.org (Infographic). It said that “a few infringing links are enough to block a site full of legal material”—an outright lie which provided no support for the claim. The cartoonish digital flyer said that, as a result of SOPA, “Sites’ self-censorship increases dramatically,” next to a circle-shaped graphic labeled, “self-censorhip on websites.” A small, bright red circle labeled, “Today’s self-censorship” is overwhelmed by a large, ruddy circle labeled “Self censorship if the bill passes.” They provided zero reasoning or evidence for their baseless claim and of course made no effort to draw the distinction between censorship that occurs because someone is breaking the law and censorship that occurs on account of the content of their speech. Nor did they bother to justify a linear chart that purported to show “new startups being launched.” A happy, blue upward reaching line represented “before SOPA,” with bright red line sinking down “after SOPA.” Again, Fight the Future passed a baseless claim off to unsuspecting Internet users as certain fact.

“What sites are at greatest risk?” another text box asked. The answer? “Anywhere people are expressing themselves or finding content: social networks, hosting sites, personal pages.” Next to this quote, which didn’t even mention piracy or copyright, logos for Vimeo, Facebook, Myspace, Aol Instant Messenger, Twitter and Reddit appeared—even though each and every one of those sites was already liable for “dedicated” infringement under US law. There was no mention of the many sites that, Internet users well understand, exist for no significant purpose other than to facilitate unlicensed downloading or streaming of legally protected works. That’s because Fight for the Future had no interest in exploring the nuanced truth of the piracy debate. Their aim was to frighten and mislead and enter themselves into the long tradition of cynical propagandists like Edward Bernays and Ivy Lee.

“Our basic Internet freedoms are on the chopping block,” the infographic finished. Sure, if “Internet freedom” means the freedom to exploit people.

SOPA was not a perfect bill by any means, but it could have been fixed and helped us along the path of reconciling the regulation of the Internet with creators’ rights. In fact, that’s precisely what the threat of the blackout accomplished. The weekend before the blackout, the DNS-blocking provisions were reportedly stripped from SOPA. But Fight for the Future didn’t want some watered down version of SOPA to pass. Their irrational and defensive philosophy is based upon the idea that any regulation of the Internet is an attack on the Internet and its “freedom,” so any proposed regulation needed to die.

Perhaps the philosophy of “Internet freedom” was truly that of Fight for the Future’s donors. Whoever funded the group was apparently pleased after the blackout. As quoted in the same January 26th Boston Globe story that revealed the $300,000 grant which seeded Fight for the Future, “[Media Democracy Fund] director, Helen Brunner, said the fund is finalizing another $759,000 grant for Fight for the Future.” 6Farrell, supra. That’s the reward, I suppose, for making a concerted propaganda campaign appear to be a grassroots uprising and duping millions of well-meaning Internet users to suit one’s own devices. This was no example of Thomas Jefferson’s ideal of an educated public ensuring liberty, but the story of a poorly educated public manipulated by well-funded factions.

As Holmes Wilson admitted to Talking Points Memo, Fight for the Future is a 501(c)4 nonprofit. 501(c)4 groups are also called “dark money” groups. Many of them legally launder unlimited amounts of political donations to America’s super-PACs.” 7Sarah Lai Stirland, Geeks Gear Up To Fight Online IP Bills, PIPA, SOPA, TechPresident (Jan. 11, 2012). Groups with 501(c)4 status are lobbying and political advocacy groups with no spending limits on their own campaigns and—more relevant to an Internet community that pats itself on the back for their commitment to “transparency”—under no obligation to disclose their donors. Ironically, the Sunlight Foundation itself has publicly campaigned against 501(c)4 groups for their lack of transparency and corrupting influence of the public interest. Fight for the Future could be funded by anyone, but will never have to disclose a thing. Who is behind them and how much are they truly receiving? Your guess is as good as mine, and the flip side to hiding sources of one’s funding is that any guess become fair.

So much for the grassroots, transparency, openness… and so much for the “planetary soul.”

 

References   [ + ]

1. Michael B. Farrell, Small Worcester Group Plays Large Role in Online Protest, Boston Globe (Jan. 27, 2012).
2. “Defending the Internet Panel 2/4 – ROFLCon 2012″ at 14:30 (YouTube).
3. Holmes Wilson, One of the Creators of the SOPA Strike Movement, is this week’s special guest on The Dose, Jammer Direct (Jan. 25, 2012).
4. Overview for holmesworcester, Reddit.
5. SOPA: The Internet Blacklist Bill, Americancensorship.org (Infographic).
6. Farrell, supra.
7. Sarah Lai Stirland, Geeks Gear Up To Fight Online IP Bills, PIPA, SOPA, TechPresident (Jan. 11, 2012).