Thousands of YouTube partners now make six figures a year — Google has reported that thousands of Youtube creators are now making over six figures a year. Though many of these are established content producers, like major label artists, there are a lot of new, YouTube-native producers, who have found success thanks to significant investment from Google in promoting creators.

The DMCA is Broken… — The Trichordist presents a post from an indie label that has reported over 50,000 DMCA takedown notices in the past year. “If site operators want to hide behind ‘how do we know what’s infringing’… Well, here’s how, we’ll let you know! If we issue you a notice, you now know… do you think the title will suddenly not be infringing the next day, when re-uploaded by the same offending person? Seriously? Does Billy in Pittsburgh suddenly own the rights to a Radiohead album (for example)?”

Music piracy – who’s on the moral high ground? — Interesting piece from the BBC. Notable quote: “Google’s Theo Bertram strongly disputes that: ‘I’m happy to say Google doesn’t support piracy and does support freedom of expression,’ he told me. ‘Those are not in conflict.'”

Vincent Misiano on the Golden Age of Television — TV director of tons of shows, including West Wing, Law and Order, Medium, Warehouse 13, and White Collar, Vincent Misiano shares his thoughts on filmmaking and technology. I share his thoughts that we are currently living in a “golden age” of television. I think you’d be hard-pressed to find a vehicle of storytelling throughout history that is so highly developed and fulfilling. As Misiano notes, we may be moving to a world that doesn’t support such storytelling, but that’s not a world I want to live in.

Kim Dotcom Extradition Judge Steps Down After Joking US Is ‘Enemy’ — The New Zealand judge who recently ruled that warrants executed in the Megaupload case were illegal has recused himself after making comments that his country’s long-term ally was an “enemy” at a copyright conference.

Viacom Top Lawyer Michael Fricklas on Piracy, YouTube and His Toughest Decisions (Q&A) — Congrats to Fricklas for receiving The Hollywood Reporter’s “Raising the Bar” award this year. THR has an interesting interview with the general counsel of Viacom.

Guest post: Dear Kim Ditcom — Independent filmmaker Ellen Seidler has a rebuttal to the Megaupload CEO’s “Letter to Hollywood” that is well worth a read. “For the record, the Internet does not belong to you and your ilk (no matter how many times you change your name).  The Internet belongs to us all–and that includes the millions of artists and creators who deserve a fair marketplace and an Internet that works for everyone.”

Memo to DOJ: Drop the Apple E-Books Suit — Senator Charles Schumer writes an insightful editorial on the DOJ’s anti-trust lawsuit involving e-books. “If publishers, authors and consumers are at the mercy of a single retailer that controls 90% of the market and can set rock-bottom prices, we will all suffer. Choice is critical in any market, but that is particularly true in cultural markets like books. The prospect that a single firm would control access to books should give any reader pause.”

Two Inane Suggestions for Compensating Artists Online — The Cynical Musician’s Faza explains why free culture guru’s Richard Stallman’s proposals for compensating artists online won’t work.

Google Exec: If You Want to Control the Pirates, Go After Their Money… — That was the response from Google in a “heated debate” between an exec from BPI. The response: “Once we’ve told Google 100,000 times that a particular site is illegal, we don’t think that site should be coming above iTunes and Spotify in the results.”

ICE-led IPR Center seizes 70 websites duping consumers into buying counterfeit merchandise — Kudos to ICE for launching the second phase of Operation in Our Sites, which targets the domain names of websites engaged in infringing activities. This latest round resulted in the seizure of 70 domain names engaged in selling a wide range of counterfeit goods. Many of the sites also displayed SSL Certificates, “further duping the consumer into thinking they were shopping on a legitimate website” and “potentially putting customers’ financial information at risk,” according to the federal agency.

Weighing the costs of crowdfunding — The Future of Music Coalition provides some balance to the hype over crowdfunding, noting “that big pronouncements about how crowd-funding is ‘the future of music’ might be more than a bit inflated. Services like Kickstarter and Indiegogo are an important new tool in musicians’ arsenals. But they work best for artists who already have a particularly tech-savvy, deep-pocketed audience — and who have a long history of putting in the kind of work necessary to build a strong social media following — which … can leave music itself on the back burner.”

How Free is Ruining Everything — Epic, must-read post from Eamonn Forde.

Are SOPA opponents crying wolf over Attaché Act? — SOPA opponents are becoming very adept at fleeing from reality. The latest example is the minor uproar this week over the proposed Intellectual Property Attaché Act, which would realign a six year-old program under the auspices of the Patent and Trademark Office. Tamlin H. Bason at Bloomberg takes a look at just how wide the gap is between what the bill does and what folks at Public Knowledge, Boing Boing, and Techdirt say it does.

Robert Levine argues against the culture of ‘free’ — Ben Challis at the 1709 Blog writes up Free Ride author Rob Levine’s appearance at the UK’s IndieCon last week. As Challis states, “Robert was interviewed by Ben Watt, one half of alternative pop duo Everything But The Girl, BBC 6Music DJ, author and founder of his own label, Buzzin’ Fly. Robert adds an interesting and clear voice to the debate about the future of copyright and to be clear whilst critical of some aspects of copyright, overall he supports the regulatory framework and the right of authors to be paid – if they want to be paid.”

Megaupload and the twilight of copyright — Roger Parloff of Fortune pens an extraordinarily comprehensive look at the state of copyright law from Sony to Megaupload. Highly recommended.

One filmmaker’s fight against the cyberlockers — A companian piece to the article above. It tells the story of indie filmmaker Ellen Seidler, and the huge blows online piracy has had on her ability to make movies. “I got to say it galled me to see Google making money off my film, and the pirate-operator making money, and we’re still in debt,’ says Seidler.”

Lowery: The blue-collar musician at the eye of the copyright storm — Andrew Orlowski interviews David Lowery, whose posts on the Trichordist have kickstarted the entrance of a fresh set of voices in online copyright discussions. Excellent piece that covers a wide range of topics.

What’s so great about viral? — Some words of caution for creators from Bemuso. “Viral content and pop media parasites offer empty calories… Music spreads between people who value art rather than artifice and if it’s good enough it builds careers. It doesn’t survive in the fast lane where the audience only has a few seconds to spare.”

A Reality Series Finds Silicon Valley Cringing — Coming soon to Bravo, a reality show that promises a closer look at the topsy-turvey world of Silicon Valley startup culture. “As the cameras rolled the other day, Ben and Hermione Way, a photogenic brother-and-sister team from England, discussed the $500,000 they got to develop a fitness app. ‘Four noes and one yes,’ Ben said, sadly. ‘Not exactly people throwing money at us.’ He added that he developed the idea for the business while drinking in a bar.”

PayPal Bans Major File-Hosting Services Over Piracy Concerns — The major online payment processor has stepped up its efforts to prevent its services from being used for commercial copyright infringement. In recent months, it has cut off several major cyberlockers, and recently it has updated its terms of use to be more robust.

The Supreme Court rules on copyright — The Supreme Court of Canada released its decisions in five copyright appeals heard last December. Attorney Barry Sookman has a run down of what the Court held and what the decisions mean.

No Two Artists Are Alike — Lucinda Dugger of the Copyright Alliance reports on the incredible range of artists who performed at an event for delegates and stakeholders in San Diego earlier this month during TPP negotiations. Says Dugger, “The evening served as a wonderful reminder of the diversity of voices and experiences in the creative community.”

On July 6, the DC Circuit Court of Appeals issued its decision in Intercollegiate Broadcasting v. Copyright Royalty Board. I had written about the case before — check out my article Is the Copyright Royalty Board Unconstitutional? for more background — but basically, this litigation arose out of rate determinations in front of the Copyright Royalty Board, an agency in the Library of Congress that sets royalty rates for a number of statutory licenses. Here, the statutory licenses regarded the use of sound recordings by “webcasters”, such as the Intercollegiate Broadcasting System. During an appeal of the Royalty Board’s determination to a federal court, Intercollegiate raised the argument that the rates were void because Copyright Royalty Judges are unconstitutionally appointed.

Though a headline declaring the Board unconstitutional is dramatic, the actual holding is quite narrow. The Circuit Court’s decision leaves the Board entirely intact, except for restrictions on the Librarian of Congress’s ability to fire Board Judges, which Congress included when it created the Board. The Court stated, “Specifically, we find unconstitutional all of the language in 17 U.S.C. § 802(i) following ‘The Librarian of Congress may sanction or remove a Copyright Royalty Judge . . . .'” 117 U.S.C. 802(i) in full reads (with the now unconstitutional language in italics):

(i) Removal or Sanction.— The Librarian of Congress may sanction or remove a Copyright Royalty Judge for violation of the standards of conduct adopted under subsection (h), misconduct, neglect of duty, or any disqualifying physical or mental disability. Any such sanction or removal may be made only after notice and opportunity for a hearing, but the Librarian of Congress may suspend the Copyright Royalty Judge during the pendency of such hearing. The Librarian shall appoint an interim Copyright Royalty Judge during the period of any such suspension.

The court reasoned that absent this ability to remove Copyright Royalty Judges, the Board’s authority and discretion to set royalty rates was so broad as to make them “principal officers” — and under the Constitution, only the President may appoint “principal officers.” However, the court concludes, “Once the limitations on the Librarian’s removal authority are nullified, they would become validly appointed inferior officers,” and the Constitution allows Congress the ability to vest appointment power of inferior officers “in the President alone, in the Courts of Law, or in the Heads of Departments” — the last of which includes the Librarian of Congress.

This last point, that the Librarian of Congress is a Head of a Department, had been contested by Intercollegiate Broadcasting in the same case. The Circuit Court rejected the claim.

The Library of Congress is an Executive Department

As I noted in my previous post on this subject, the Constitution doesn’t define “Department”, and current Supreme Court precedent on what constitutes a Department is “not … entirely clear.” Specifically, in Free Enterprise Fund v. PCAOB, 2561 US ___ (2010). the Court seemingly ignored the majority’s convulted definition of a Department from Freytag v. Commissioner 3501 U.S. 868 (1991). and adopted the concurrence’s simpler definition.

The court here did the same. Under this definition, a Department is any “freestanding component of the Executive Branch, not subordinate to or contained within any other such component.” And the Library of Congress “clearly meets” this definition. Said the court:

To be sure, it performs a range of different functions, including some, such as the Congressional Research Service, that are exercised primarily for legislative purposes. But as we have mentioned, the Librarian is appointed by the President with advice and consent of the Senate, and is subject to unrestricted removal by the President. Further, the powers in the Library and the Board to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case are ones generally associated in modern times with executive agencies rather than legislators. In this role the Library is undoubtedly a “component of the Executive Branch.”

This means that both Circuits that have been faced with this question have held that the Library is an executive department under the Appointments Clause. 4The other is the Fourth Circuit, in Eltra v. Ringer, 579 F.2d 294, 300-301 (1978). This part of the decision I believe is fully correct, and hopefully should resolve any lingering doubts over the Librarian as a Head of a Department — relevant since the Librarian also appoints the Register of Copyrights, who engages in some executive functions.

The Impact of the Decision

The effect of this decision is limited to a vacation of the rate determination proceeding involving Intercollegiate Broadcasting and the other parties in this case — the proceeding starts over from square one, with the slight change that Copyright Royalty Judges can be removed without cause. It is uncertain whether parties in previous proceedings will launch their own constitutional challenges based on this decision, but it would seem that any future proceedings would be immune from Appointments Clause challenges now that the Circuit Court has struck down what it considers the unconstitutional removal provisions.

What does this mean constitutionally? It’s difficult to say. One can search in vain through the Constitution, the Convention Debates, or Ratification sources (like the Federalist Papers) to find Constitutional principles that were furthered by this decision. As I noted in my earlier piece, the Appointments Clause came about largely from discussion over the best way to ensure quality officers while minimizing cronyism and encroachment of one branch of government over another. The distinction between principal and inferior officers was added later as a nod to pragmatism — it would be inefficient for the President to have a hand in every single official appointment. The Heads of Departments and courts of law were seen as qualified enough to make those appointments — the only branch prohibited from appointing executive officers was Congress, based on separation of powers concerns.

So the strict formalist line of thought, unbounded by any principles, that the Circuit Court followed makes little sense. Limiting the Librarian of Congress’s ability to remove Copyright Royalty Judges doesn’t result in Congress encroaching on the Executive Branch’s authority; if anything, it minimizes the chances Judges would consider politics when making decisions. And it is odd that the current setup is more open to challenges under a clause designed to foster quality officers than the previous Copyright Royalty Tribunal, where members were appointed directly by the President. As William Patry noted, one Senator had said privately “the CRT was a dumping ground for unqualified people to whom the President owed a small favor.”

The only principle here would seem to be that Intercollegiate Broadcasting was unhappy with the rate determination made by the Copyright Royalty Judges and found a successful way to make a collateral challenge on constitutional grounds. No word yet on whether this decision will be appealed.

References   [ + ]

1. 17 U.S.C. 802(i) in full reads (with the now unconstitutional language in italics):

(i) Removal or Sanction.— The Librarian of Congress may sanction or remove a Copyright Royalty Judge for violation of the standards of conduct adopted under subsection (h), misconduct, neglect of duty, or any disqualifying physical or mental disability. Any such sanction or removal may be made only after notice and opportunity for a hearing, but the Librarian of Congress may suspend the Copyright Royalty Judge during the pendency of such hearing. The Librarian shall appoint an interim Copyright Royalty Judge during the period of any such suspension.

2. 561 US ___ (2010).
3. 501 U.S. 868 (1991).
4. The other is the Fourth Circuit, in Eltra v. Ringer, 579 F.2d 294, 300-301 (1978).

Decoding the “Declaration of Internet Freedom” — Daniel Castro has a funny take on the “Declaration of Internet Freedom” released this week. Also be sure to check out Elie Mystal’s take on Above the Law, ‘Declaration of Internet Freedom’ Contemplates No Rights or Freedoms Worth Declaring.

Low-budget knockoff movies benefit from Hollywood blockbusters — The LA Times has an interesting look at the growing business of “mockbusters.” The story is reminiscent of a recent Billboard article on the growing business of “knockoff” cover songs. A little too reminiscent, if you ask me…

Little Grey Cells #6… People don’t realise Facebook is all about monetising social graphs— A Q&A with Douglass Rushkoff, tech commentator and author of a new book on the importance of mastering the new digital world. “The user with no programming knowledge at all may as well be sitting in the back seat of the car, with curtains covering the windows – or  video screens in place of the windows. He may be going to the best places in the best ways, or he may not. He has to trust his driver. I don’t trust the drivers of our software and websites any more than I trusted the people making game shows and commercials for TV. I’m sure they’re nice people, but I don’t believe they all have my best interests at heart.”

All your © are belong to us — In a two-part series, Bemuso looks at a recent troubling UK proposal for opt-in collective licensing (part 2 here). “Under this new law collection societies may license categories of content without the permission of creators. So if you fall into any category as a songwriter or record label they will license (i.e. own the rights to) your stuff unless you say no.”

BPI AGM: Taylor slams Google’s ‘stonewall refusal’ over search de-listing — Transcript of the BPI exec’s speech this week. Said Taylor, “If Google is clever enough to teach a computer to think – even if only about cats – it’s clever enough, when it has been told more 150,000 times that The Pirate Bay is illegal, to rank that site below Amazon and iTunes when consumers search for music.”

Techo-Utopians Part II – Culture — David Newhoff continues his insights into some of the shortcomings of techno-utopian arguments. “The techno-utopian seems to want to conflate information and entertainment when it is convenient to make idealistic statements like the one quoted in Part I — ‘Imagine all the world’s information and culture…’ and so on.  And while I agree that information and culture are interdependent and intertwined, this does not mean, for instance, that one’s right to know what Congress does without a cost barrier also implies a right to download Coldplay to one’s iPod without a cost barrier.”

Rockefeller says big tech companies acting like Standard Oil — Senator Jay Rockefeller (D-WV), whose great-grandfather founded Standard Oil — broken up by the Supreme Court in 1911 — had strong words for tech companies like Apple, Google, and Facebook. Among other things, according to the Hill, “he said the instinct to build anti-competitive monopolies is ‘alive and well in the United States … with a lot of these big computer companies.'”

The New Busking — Musician Terre Roche offers a few words of caution to the “new business model” hype. “I was thrilled as first-responders offered up their credit card numbers to a strange Web site in order to show me that they cared. It seemed like a huge improvement over the days when I sat in record company boardrooms with “product managers” who’d been assigned to give me a “makeover” as a last resort before dropping me from their labels.”

In Plain English: The Trans Pacific Partnership (TPP) — The Copyright Alliance presents a guest post from law student Joan Blazich on the trade agreement currently being negotiated between the US and ten other nations. A great introduction with more to follow soon.

Court Denies Pirate Party Naming Right, Cites “Real Pirate” Confusion — Taiwan’s Pirate Party has suffered a setback as the country’s High Administrative Court has rejected its use of the term “Pirate” in the party name. It would appear that it won’t, as the German Pirate Party has bragged, be growin as fast as the Nazis.

Interview With David Lowery of Cracker — Chris Castle interviews Lowery in the aftermath of his super-viral letter to Emily. “Until now the debate has always been Record Labels vs. The Technology Industry.  Meanwhile the artists have been caught in the crossfire. We set out with The Trichordist to re-frame the debate about artist’s rights. We figured it was a five-year project. We got lucky this week. It’s still a five-year project.”

A Brief History of Artists’ Control of Their Product — Speaking of Trichordist, if you aren’t already reading it, I highly recommend it. Here, Jonathan Segel (solo instrumentalist and fellow bandmate of Lowery in Camper van Beethoven) lays out a detailed look at the rise of the “recording” industry, beginning with the “recording” of music on paper. Great stuff: ” I see this as a hypocrisy: either music has no value at all, (in which case why copy it to begin with?), or it has value and the copiers are refusing to admit that it does, simply because it is a copy.” Also check out Bob Regan’s post, Breaking News!! Band Embraces New Technology and Business model. Touring? T-shirts? Regan was doing that in ’77.

Moving On… — I highly recommend subscribing to Chris Ruen’s blog or following him on twitter. He has a book coming out in the Fall that promises to contribute greatly to copyright debates. Says Ruen, “In academia and new media, a handful of voices have made their names on the novelty of their own contrarianism in this regard. They tell us artists can succeed…by being more desperate for support. They tell us that creators’ legal rights are artificial…while other citizens’ legal rights are not. They seduce our lazy quest for instant gratification by rocking our good nature to sleep, purring that exploitation is really ‘sharing’ and crime is protected ‘free speech.’ And they tell us that technology is too powerful to fight anyway. We have no agency in regards to digital technology. It’s a brave new world. Truly. The survival of the festering wound is in the interest of these contrarians. Without it they would receive little publicity. They would need a new beat or a new job.”

How Can We Get Artists Paid On The Internet? A Chat With David Lowery — Perhaps you’ve seen David Lowery’s letter to Emily White, which lit up the internet this week. (My favorite headline in a response: Our Digital Innocence Just Died. And David Lowery Killed It…) Maria Bustillos of The Awl talked with Lowery about the piece and other issues relating to building a sustainable creative ecosystem in a digital age.

Changing copyright laws won’t solve everything — Helienne Lindvall reports on the “copyleft math” put to use by the UK’s Vince Cable regarding implementing that country’s Hargreaves Report. For example, according to the IPO, the proposed parody exemption would result in a £600m growth per year; quite astonishing in a country where the total value of the music industry is estimated “to be around £1.33bn.”

NMPA Inks Deal With Universal Music Group Over VEVO, YouTube Videos — Songwriters and music publishers will now get a cut of ad revenues from online music videos. According to Billboard: “The NMPA termed the agreement, which covers North America, a groundbreaking model licensing deal because it will allow  songwriters and music publishers to share in revenue from music videos. Up until now, while Youtube and VEVO were making money on their ad-supported services, indie music publishers had not shared in that revenue because the major labels long considered videos as promotional tools and never paid for licensing the songs used in the videos.”

Google moves to snuff sites that rip music from YouTube videos — PaidContent reports: “The company’s move against YouTube-Mp3 comes at the same time that it is spending hundreds of millions of dollars on partnerships to create new YouTube channels that will offer original programming. Google may thus be seeking to protect its investment and reassure its partners that it can control the new distribution environment. Or the dispute may signal a more permanent shift in which Google begins to adopt the outlook of a copyright owner.” Chris Castle has another take: “Always be wary of anything from the tech press that begins ‘the free ride may be ending’ because that is never true.”

Stats And Figures On 30 Years Of Sampling [INFOGRAPHIC] — Hypebot presents this look at sampling from Whosampled, a site that catalogs the pedigree of samples since their introduction in music decades ago. Most surprising: the prevalance of samples is at an all-time high, a stat at odds with much IP scholarship.

German Court’s Verdict in Kino.to Case Supports an Internet that Works for Everyone  — The MPAA offers its take on the recent conviction of the ringleader of a major German streaming portal. Said the Association, the decision “paves the way for an internet that works for everyone by clearly recognizing that those who illegally distribute content are not in business for the greater good. The Kino.tv business model worked for its operators who made millions from ads but not for viewers whose privacy was compromised and not for the many thousands of creators and makers whose content was made available for free, denying them the value of their hard work and of the economic incentive to keep creating and making it.”

Why Can’t We Be Friends? — Sandra Aistars reflects on the future of conversation in a post-SOPA world. “We all want the internet to mirror the kind of society we profess to be. One that allows us to gather and exchange thoughts online, one that supports democracy and does not threaten others with exploitation, whether they be the unwary misled by scams, children and women exploited for the pleasure of others, or artists and creators who we neglect to compensate for their work. Just as a vibrant, open and free society cannot exist without empathy for our fellow travelers and mutual respect for basic rights and privileges, so too a healthy internet society must accept basic rules of the road.”

Pixar Story Rules (One Version) — A collection of tweets from Pixar story artist Emma Coats that provide a great set of tips for writers of all stripes. Example: “#11: Putting it on paper lets you start fixing it. If it stays in your head, a perfect idea, you’ll never share it with anyone.

Not Free, Not Easy, Not Trivial — The Warehousing and Delivery of Digital Goods — Kent Anderson at the Scholarly Kitchen points out, contrary to some assertions, that digital goods have costs. “Even beyond just their power requirements, digital goods have particular traits that make them difficult to store effectively, challenging to distribute well, and much more effective when handled by paid professionals.”

The Music Industry in the Digital Age — RIAA CEO Cary Sherman addressed the 2012 Personal Democracy Forum on Monday. A must-watch video.

All the World’s a Stage (For Suits Against YouTube) — Future of Music Coalition reviews recent lawsuits involving YouTube’s potential copyright liability in the US, France, Germany, and Italy. The Coalition also notes, “While sovereign nations undoubtedly have the right to create and interpret the laws of their land as they please, the various international lawsuits against YouTube serves a case study in why international harmonization of copyright and trademark laws has become increasingly important in recent years.”

Whatever happened to the YouTube killers? — GigaOm reports on the “growing number of web video ventures that once set out to compete with YouTube but never came close. Some of them had to shut down, others changed hands. Some are trying their luck at a new direction while others seem stuck: forgotten but never taken offline.”

Warez Download Site OneDDL Calls It Quits Citing Legal Concerns — Also shutting down, another cyberlocker. “‘The legality of websites, such as ours, has always been a rather grey area. I had believed that this ambiguity would work to our advantage and originally, that is what lawyers told us (yes, we went to see lawyers),’ says the site owner. ‘Lately however, the landscape has changed, and it appears the grey is gradually becoming black and white, unfortunately not in our favour.'”

Amazon’s markup of digital delivery to indie authors is ~129,000% — Meet the new boss, same as the old boss. Author Andrew Hyde discovers that Amazon takes a 30% cut when it sells e-books through its site AND a healthy delivery fee (totalling nearly 50% of the list price). In a follow-up piece, Hyde reports that after compressing and resubmitting his manuscript, he was able to bring Amazon’s total cut down to 36%, but also notes that his buyers easily switched to other outlets. “The argument against … is that Amazon drives sales, which indie authors are finding out, isn’t the case. Your readers drive your future sales.”

Glen Hansard and Markéta Irglová’s Once Takes Home Eight Tony Awards — Congrats to the songwriting duo for a big win last Sunday. The musical had previously been a film (highly recommended), with the song “Falling Slowly” winning an Academy Award for Best Song and the soundtrack gaining a Grammy nomination. All well-deserved.

By now, you’ve probably heard of this week’s internet soap opera involving The Oatmeal and Funnyjunk. If not, here’s the original post, and an article from Ars Technica describing what happened next.

The story has provided plenty of fodder for discussion, especially concerning copyright. What’s interesting is the turn some of the conversation has taken. For over a decade, we’ve been told by copyright skeptics in academia and the tech sphere that copyright is irrelevant to creators, that people don’t respect copyright because they don’t believe in it, and that “it would be both unjust and impractical to hold companies whose systems happen to automatically transmit or store the content responsible for words they didn’t write, pictures they didn’t take, or videos they didn’t create.” The underlying premise adopts an either/or approach: you can have copyright or the Internet, but not both. It sets up a false dichotomy between established creative industries, who prefer the former, against digital natives, who prefer the latter.

But if there’s one encouraging aspect from this story (besides the generous donations made to two charities), it’s the growing awareness that copyright issues are not so reducible to such binary thinking. Consider the following popular comments on one of the Reddit posts for this story. The first is currently the top comment on the site:

banksey18182
I just wish Reddit would take more time to realize that rehosting images like this actually does hurt the original content creators.
Sure we go all out and harp about “Linking to the Source” . . . etc. etc. . . but the truth is that anything linking to a source will only get a fraction of the traffic that original submission will receive.

Next is a response to user Roflzilla, who wondered, “I am curious what Funnyjunk’s side of it [is] though.”

suddenly_ponies —
There IS no other side. Sites like Funnyjunk, memebase, and, yes, even Reddit profit greatly from the theft of art and other great things. Youtube managed to turn it around and share the profit thus making nice with everyone (users and content providers), but they too were built on theft while hiding behind the myth that it’s hard to police content.

The following includes two responses:

vitto2point0
You do know that imgur operates the same way that funnyjunk does right? And you all post deviant art, SMBC, XKCD etc on there then to reddit where imgur makes bazillions in profit and nothing for the artists… Yet you seem to give a shit now?

JoeMomma8008 —

Great point…  Maybe more people will realize what goes on and this is the straw that broke the camel’s back.  Hopefully people that do see that this happened + the comments and be a little bit more mindful about what they post online.

I’m guilty of putting stuff on DA but I’m glad I haven’t done it in awhile.  Even websites like shutterfly do the same thing.  You upload a photo, they make money on you buying shit from them.  Bastards.

throwawaylifad —

They give a shit when it’s someone they like but when it comes to piracy or other copyright infringement they make posts about excercising their natural right to download anything they like

Finally, an exchange that is short and to the point:

eatme547
Is having a user upload the Oatmeal’s material to FunnyJunk and FJ making money off of the advertisement different from having a user “upload” (insert content here) on to the PirateBay and PB making money off of the advertisement?

Peritract

No.

The Harvard Law Review recently conducted a symposium on The New Private Law (an admittedly academic area that I haven’t yet delved into too deeply). I was attracted by contributions by Abraham Drassinower and Richard Epstein on copyright law. But what really caught my attention was law professor Henry E. Smith’s paper, Property As a Law of Things.

In it, Smith challenges the prevailing view of property as a “bundle of rights,” criticizing it as not offering a complete theory of property law. What I found interesting is how Smith at several times notes that much of property law is centered around the concept of “exclusion” — if something is considered yours, you can prevent others from using it.

Property has purposes and employs various means to serve them. The purposes of property relate to our interest in using things. Desirable features of a system of property — stability, promotion of investment, autonomy, efficiency, fairness — relate to the interest in use. There is no interest in exclusion per se. Instead, exclusion strategies, including the right to exclude, serve the interest in use; by enjoying the right to exclude through torts like trespass, an owner can pursue her interest in a wide range of uses that usually need not be legally specified.

The “right to say no” is central to property law, but it is not the goal of property law. This is, perhaps, an obvious point, but, as Smith explains, it causes much confusion when we think about the means and ends of property:

The architecture of property emerges from the process of solving the problem of how to serve use interests in a roughly cost-effective way. In modern societies, the solution usually involves first the application of a use-neutral exclusion strategy, and then refinement through contracts, regulations, common law doctrine, and norms. Exclusion is at the core of this architecture because it is a default, a convenient starting point. Exclusion is not the most important or “core” value because it is not a value at all. Thinking that exclusion is a value usually reflects the confusion of means and ends in property law: exclusion is a rough first cut — and only that — at serving the purposes of property. It is true that exclusion piggybacks on the everyday morality of “thou shalt not steal,” whereas governance reflects a more refined Golden-Rule, “do unto others” type of morality in more personal contexts. It may be the case that our morality itself is shaped to a certain extent by the ease with which it can be communicated and enforced in more impersonal settings. I leave that question for another day. But the point here is that the exclusion-governance architecture is compatible with a wide range of purposes for property.

The same is true for copyright law. At its heart, copyright law secures exclusive rights to creators of original expressive works: the right to copy and distribute, the right to publicly perform and display, and the right to make derivative works. Though some commentators grow squicky at the mention of “property talk” in copyright discussions, 1For example: Bill Patry, Copyright and the Why of Property Talk (2009); Steve Collins, ‘Property Talk’ and the Revival of Blackstonian Copyright (2006); Siva Vaidhyanathan, Copyrights and Copywrongs, pg 11-15 (2001). the exclusive right of an author to copy her work is functionally the same as the exclusive right of a landowner to occupy her land or the exclusive right of a property owner to possess whatever the thing may be.

The confusion Smith refers to, over exclusion as a value, is very much present in copyright discussions. Many suggest that “relying on copyright” is the same as “preserving outdated business models.” What use is copyright if, for example, creators can raise funds on Kickstarter, or release their work online freely and seek remuneration through ancillary avenues?

These are valid choices for any creator, but it is vital to remember that they remain just that: the creator’s choice. Those values Smith refers to — “stability, promotion of investment, autonomy, efficiency, fairness” — are served by this. The “right to say no” that copyright secures is merely shorthand for ensuring a meaningful “right to say yes” to uses that are valuable to both the creator and the general public. To say that new business models refute the need for copyright is to confuse exclusion as a framework for furthering copyright’s goals with exclusion as a value in and of itself.

That’s not to say “exclusion” is the be all and end all of any property system. As Smith explains:

The exclusion strategy implemented as a right to exclude is at the core of the mechanism property uses to serve owners’ and society’s real interests. The right to exclude does not require an owner, whether it be an individual, a group, or the state, to actually exclude others; the gatekeeper can decide to include. Nor does the fact that a right to exclude follows automatically from the organization of modular things through an exclusion strategy mean that the right to exclude is absolute.

This is a strategy that has served copyright’s purpose well, especially when new technologies become popular. In 1909, Congress recognized that songwriters have the exclusive right to make mechanical reproductions of their works onto phonorecords and other mechanical devices, and recorded music has since become an integral part of many of our lives. US courts began to recognize an exclusive right to perform songs via broadcast radio in the 1920s. 2William Henslee, What’s Wrong with U.S.?: Why the United States Should Have a Public Performance Right for Sound Recordings, 13 Vanderbilt Journal of Entertainment and Technology Law 739, 754 (2011). Today, radio is a multibillion dollar industry that penetrates nearly every US household. Cable television providers were at first exempt from copyright law for retransmitting broadcast shows, but Congress changed that in 1976 3Niels Schaumann, Copyright Protection in the Cable Television Industry: Satellite Retransmission and the Passive Carrier Exemption, 51 Fordham L. Rev. 637 (1983). — this industry too has grown in size and reach since then, and original cable programming has progressed from endearingly awkward cable access shows to programs like Breaking Bad, Louie, and Burn Notice.

Granted, in the case of mechanical reproductions and cable retransmission of broadcast programs, US law has created compulsory licenses that allow certain uses, coupled with compensation set by statute, without requiring permission from the copyright holder. The existence of such compulsory licenses doesn’t negate what I’m saying. As mentioned above, there is no value in exclusion itself, and the right doesn’t require actual exclusion; compulsory licenses demonstrate that there are times when there are certain values — e.g., lowered transaction costs, 4Copyrighted Broadcast Programming on the Internet, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, US House of Representatives, 106th Congress (June 15, 2000): “For the cable license, Congress believed that the transaction costs associated with a cable operator and copyright owners bargaining for separate licenses to all television broadcast programs retransmitted by the cable operator were too high to make the operation of the cable system practical.” concerns about monopoly 5Music Licensing Reform, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Intellectual Property, Committee on the Judiciary, US Senate, 109th Congress (July 12, 2005): “due to concerns about potential monopolistic behavior, Congress also created a compulsory license to allow anyone to make and distribute a mechanical reproduction of a nondramatic musical work without the consent of the copyright owner .” — that are better served through alternatives to exclusion.

Creators, technology companies, and the general public have all benefitted from this framework that starts with exclusivity. Continuing to secure copyright’s exclusive rights is important to further the goals of copyright. In the words of the US Copyright Clause’s author James Madison, “[t]he public good fully coincides … with the claims of individuals” 6The Federalist No. 43. — or, as Register of Copyrights Maria Pallante stated recently, copyright is “for the author first and the nation second.” To say otherwise is to confuse copyright’s exclusivity as an ends rather than a means, setting it up as a strawman to strike down in an underdeveloped view of the nature of copyright.

References   [ + ]

1. For example: Bill Patry, Copyright and the Why of Property Talk (2009); Steve Collins, ‘Property Talk’ and the Revival of Blackstonian Copyright (2006); Siva Vaidhyanathan, Copyrights and Copywrongs, pg 11-15 (2001).
2. William Henslee, What’s Wrong with U.S.?: Why the United States Should Have a Public Performance Right for Sound Recordings, 13 Vanderbilt Journal of Entertainment and Technology Law 739, 754 (2011).
3. Niels Schaumann, Copyright Protection in the Cable Television Industry: Satellite Retransmission and the Passive Carrier Exemption, 51 Fordham L. Rev. 637 (1983).
4. Copyrighted Broadcast Programming on the Internet, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, US House of Representatives, 106th Congress (June 15, 2000): “For the cable license, Congress believed that the transaction costs associated with a cable operator and copyright owners bargaining for separate licenses to all television broadcast programs retransmitted by the cable operator were too high to make the operation of the cable system practical.”
5. Music Licensing Reform, Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Intellectual Property, Committee on the Judiciary, US Senate, 109th Congress (July 12, 2005): “due to concerns about potential monopolistic behavior, Congress also created a compulsory license to allow anyone to make and distribute a mechanical reproduction of a nondramatic musical work without the consent of the copyright owner .”
6. The Federalist No. 43.

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