Monday, November 18, 2013

PTO/NTIA comments: remix

Comments submitted to NTIA/PTO: I’m not going to cover all of them or the non-remix parts like the discussions of digital first sale.  For remix, along with the Organization for Transformative Works’ comment there are these:  

ASCAP: Current doctrine is fine (except for that pesky consent decree and also there should be no compulsory licensing).  

Association of American Publishers: Fair use exists, but licensing now exists to fill in the gaps and “micro-licensing” is the future.  “[I]t is neither necessary nor appropriate to attempt to eliminate such legal uncertainty by creating a statutory compulsory license or specific statutory exception authorizing such combination works when there is clear evidence that content and technology companies are working together on this issue to create market solutions, such as YouTube’s Content ID system.”  Which is interesting as a rhetorical strategy, because I’m pretty sure that the AAP doesn’t have much content that could be recognized by Content ID.  Anyhow, the AAP insists there’s certainly no need for a new safe harbor or exemption.  The derivative works right is the rule and fair use is the exception.  Maybe the Copyright Office could issue guidance on what “remixes” and “mashups” are and how they relate to compilations/derivative works. 

Center for Democracy and Technology: Reforming statutory damages is an important part of removing uncertainty around remix; they’re too high, and their availability encourages copyright trolls to roll the dice regardless of the strength of a fair use defense.  Remixes are also vulnerable to automated systems like Content ID; such systems should protect fair use by, for example, requiring excerpts of a certain length or percentage before declaring a content match. 

Computer and Communications Industry Association: DMCA uncertainties and statutory damages issues affect the production and distribution of remixes.  

Consumer Electronics Association: “Code-like approaches can raise questions or implications about areas not covered, and can also give rise to dissatisfaction, by both content owners and users, as technologies or circumstances change. Therefore, valuable initiatives like Creative Commons and Google’s Content ID System should be viewed as complements rather than alternatives to fair use.”  

Copyright Clearance Center: Celestial jukebox!  It has a new branding now, the “Copyright Hub.”  There should be a comprehensive registry and everyone should pay per use.  (Reference to fair use: “licensing only comes into play beyond the statutory authorization provided by fair use and other exceptions in the law.…[I]f you do get rights right, the market then changes.”  By which the CCC apparently means, fair use dies.)

Creative Commons: CC licenses don’t interfere with fair use, and licensing can’t substitute for fair use.  Emerging licenses aren’t interoperable, and they aren’t suited for the many low-value transactions online, for which freedom is a better solution. 

DeviantART: (Ed. note: hi, DeviantART! Nice to see some remix-friendly hosts other than Google, which has many irons in the fire.  The presence of DeviantART and Wattpad, noted below, reminds us that “intermediary” doesn’t mean “Google.”  Small and innovative sites—including the ones that didn’t show up to these proceedings because they haven’t been invented yet—need consideration too.)  DeviantART believes it’s the largest art website in existence: “Increasingly the visual arts and the businesses reliant on the visual arts are populated with people who were first introduced to the arts through this platform.”  Remixes are unduly deterred by existing law, in which fair use is unpredictable, and the DMCA doesn’t provide sufficient protection for fair use for average people, who don’t have access to lawyers.  Reform should consider social norms, not just law.  Blanket licensing is not a solution.  Most sites can’t afford the investment required to create a Content ID system, especially given the scale of visuals which is much greater than the scale of video/audio.  “In the music businesses, the one sector of copyrighted content headed to this model [of identifying and licensing everything], they are far from perfecting it despite nearly a century of good work towards it.” 

Future of Music Coalition: there should be a PRO for licensing music remix.  

Google: NTIA/PTO specifically mentioned Content ID in its questions; Content ID allows content owners to monetize remixes. However, it has limits and isn’t a substitute for fair use. “Content ID cannot categorically separate remixes that qualify as fair uses (and thus require no licensing) from remixes that are infringing in the absence of a license.” This can result in overblocking or the particularly galling result of an entity making money from a work it has no right to make money from. Rightsholder best practices could avoid misuse of Content ID.   

Independent Film & Television Alliance: While commercial filmmakers have lawyers, ordinary people can’t be trusted to identify when they’re making fair uses.  Instead of changing the law, we should educate people and develop further guidelines, “as has been done in the arena of higher education and documentaries.”  (Comments: Um, what?  Yay for alluding to the best practices for documentaries, but, as it happens, the very same people already put out a statement of best practices for user-generated video.  Also, while it’s certainly true that most nonlawyers—and even most non-copyright lawyers—can’t get the intricacies of copyright law right, that’s a far cry from being unable to draw a line between noncommercial transformative work and wholesale copying.  From what I see empirically, that line is intuitive.)  IFTA also doesn’t want any sort of blanket licensing, because face to face transactions are the current, and therefore correct, business model.  

Institute for Policy Innovation: We pay too much attention to remixes, since they’re not as creative as real works (which we all know spring fully formed from the head of the author-Zeus).  (Okay, I really shouldn’t even try, but consider the view of human existence – I can’t call it dignity or flourishing – entailed by this from the IPI:

Almost everything in a civil society requires either overt or implied consent or permission. I require permission to pull my car out onto the public roads. I require permission to hold consumer credit, or even to have access to the Internet. Permission from several different sources is required for me to hold a job, to say nothing of the permission my employer requires in order to employ me. Where did we ever get the idea that innovation might be “permission less?” At best it is a naïve concept, and at worse it is, ironically, permission to trample over property rights.

(1) What a long way from “free as the air to common use,” which is perhaps no surprise given the progressiveness of the source of that latter sentiment. (2) But wow, libertarians have an IP problem.  Consider also the following quote from the IPI comment, presented as justification, not contradiction, of the IPI’s preceding claim: “We must remember that control is inherent in ownership. If you can’t exert control, you don’t own. If you can’t exclude, you don’t own.” So, apparently, I own neither my car nor my bank account.  Overall, it’s pretty bold of the IPI to denigrate government in favor of “property rights” while also asking government to change the scope of those rights.)

Internet Association: The threat of statutory damages deters remix creators and discourages the development of fair use law, including for remixes.   

Derek Khanna and John Tehranian: There should be no statutory damages for remix, only a payment of licensing fees set by a court in case of disagreement, though they seemingly contemplate that all remix will be commercial and thus produce revenues to share.  

Library Copyright Alliance: Don’t use licensing to substitute for fair use.   

MPAA: The government should give us property rights and then get out of the way. “Indeed, the marketplace is responding to the advent of video-editing tools and user-generated-content web sites by facilitating within current law the creation and dissemination of fan-made works. Although calling a work a ‘remix’ does not automatically make it legal, the sheer volume of such works and the business models growing around them indicates that the creation of remixes is not being unacceptably impeded and that legal change is unnecessary. Put simply, the copyright laws are operating as intended: as technologies and consumer desires change, the marketplace is responding, for the most part without undue friction.”  (Just a quick reaction: That’s not what you said at the §1201 hearings, but I’m gonna remember this for next time!  I’m sure you guys included the noncommercial remix exemptions under your definition of “current law,” right?)  Content ID, Kindle Worlds and other services let copyright owners make money from remixes, which makes the MPAA happy.  The MPAA also wins my “fair is foul” award, which is for only mentioning fair use once, in the phrase “where fair use does not apply.”

National Music Publishers Association: Music remixes are different from other remixes.  All music remixes (with the very rare exception of fair uses/true parodies, which don’t usually exist) are derivative works that should always be controlled by musical work and sound recording copyright owners because there’s a licensing market for them.  After all, the hip-hop sampling market works great, and publishers have licensed YouTube to allow some kinds of user-generated content.  Copyright is a property right/moral right, not an economic right. 

New Media Rights: Remixes are awesome.  However, the DMCA is overbroad, § 1201 is a problem, orphan works issues abound, copyright duration is too long, and the small claims court proposal needs more protections for small-scale users.  “The vast majority of cases involving content bullying we see involve content holders taking down remixes of their work, even when those remixes are probably fair use.”  §512(f) needs to be fixed to provide a real deterrent to copyright abuse.  Content ID is not a true licensing system, it’s just a monetization system that doesn’t lead to a license to the original user even when the content is “allowed.”

RIAA: Remix means a bunch of different things; we want to control essentially all of them, except for “certain” criticism and scholarship that doesn’t require licenses.  (How will you know whether yours qualifies?  You should probably ask for a license.)  There definitely shouldn’t be a broad category of protected remix.  Instead, the moral right of integrity should influence the rules, and licensing through Content ID and the like can take care of remix; as long as you use approved music in an approved way and are willing to have YouTube host and monetize your remix, you’re golden (or whatever the unpaid version of golden is). 

Public Knowledge: Too much legal uncertainty surrounds remixes; remixers shouldn’t be second-class citizens including in commercial markets.  Remix, mashups, and samples should be distinguished as cultural practices with different copyright implications—sampling, for example, rarely creates a derivative work of the original.  

Stanford Center for Internet & Society (also the EFF): Licensing is no substitute for fair use, and the DMCA risks censorship of fair use.  They don’t endorse a safe harbor for particular uses, as we suggest ought to be explored, preferring instead to advocate for robust fair use.  

Thomas D. Sydnor II: Google is evil and fair use isn’t worth protecting, except possibly uses of news footage by political candidates.

University of Michigan Library: We need more protection for remix, and against misapplication of the DMCA to take down remixes.  

Wattpad (another host like DeviantART): While much of the conversation focuses on audio and video remix, there are other kinds of remix.  Fan fiction is fair use that has important expressive and literacy-improvement benefits.  “Novelists like Meg Cabot candidly discuss writing fanfic for films like Star Wars in their younger days (before there was an internet to post on) and TV stars like Darren Criss of Glee become famous for writing and/or performing in fanworks based on the Harry Potter series.”  As Orlando Jones of Sleepy Hollow said, “Those fans [writing fan fiction] are artists too, I’m not more or less of an artist than the people who are writing that, or drawing fan art.” But there are those out there who don’t believe in fair use.  Fair use should be reaffirmed and statutory damages made unavailable when a work is arguably transformative.  Platforms should also be protected from unsustainable damages when they reasonably believe a work is transformative fair use.  Wattpad wants to be able to highlight/recommend good fan fiction to help its users, but fears the DMCA consequences.

P.S. Despite my goggling at the sheer incoherence of the IPI, my “best contradiction” award goes to BMI, which manages to argue both that “making available” is the best way to conceptualize copyright’s rights (a position I’ve come to agree with, though I believe in private use and technologies that enable private use, unlike BMI) and also that it should get to double-dip by collecting performance rights royalties when someone downloads a ringtone or a song from iTunes. 

Big picture: the comments include many powerful arguments—almost every interest brings its A game, though for the life of me I can't see why there shouldn't be a general public performance right for sound recordings subject to the same exceptions as for musical works—along with the expected naked self-interest.

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