by Ellen Seidler | Copyright, Film, Law, Music, Piracy, Politics, Tech
Derek Khanna first came to public notice in 2012 after writing a lopsided anti-copyright “policy brief” for Republican Study Committee called “Three Myths About Copyright Law and Where to Start to Fix It.” A day after the document was released it was withdrawn and Khanna lost his job at the end of the 112th Congress. He blamed wealthy donors in the “entertainment industry” for his dismissal and quickly became a martyr for the anti-copyright cause. He ended up at as Yale Law Fellow with the Information Society Project.
Unfortunately, like many of those in the legal field who are working to undermine creator’s rights, Mr. Khanna speaks from a decidedly one-sided perspective in penning a piece for today’s Washington Post that ominously warns that “Hollywood should not decide our copyright laws.” Aside from selecting a splashy but lazy (and inaccurate) headline for his piece, he conveniently ignored the (Tech) elephant in the room when he wrote, ” Last year’s defeat of the Stop Online Piracy Act (SOPA) caused industry groups to intensify their lobbying efforts. And they haven’t been subtle about it.” Sure, television and motion picture interests have increased their presence in Washington, but then so has “Big Tech.”
May I remind you that the reality of the anti-SOPA uprising was in large part a result of a deliberate (and well-funded) astro-turf campaign managed by the big guns of tech (Google, et al) to gin up the public. How hard is it to get the internet in a spin when you’re in control of its major gateways? Certainly there was room for open discussion about the Stop Online Piracy Act and possible revisions to improve it, but the option for an open debate was quickly overwhelmed by an online avalanche of protest. Never mind that the majority of those who Tweeted or posted condemnations on Facebook hadn’t actually read the bill. For them all that was required was a mendacious meme that SOPA would “break the internet” and do away with “free speech” online.
It’s also worth noting that Mr. Khanna’s current employer (the Yale Law Information Society Project) receives some of its funding from Google–a company not exactly known for its love of present copyright law.
I do agree with one thing Khanna wrote in his post piece:
So in its deliberations, Goodlatte’s committee should ensure that Hollywood isn’t the only voice at the table. Both content creators and innovators desperately want to see copyright reform.
However, after that non-controversial statement it all goes downhill, quickly as Mr. Khanna gives readers a list of examples that, to him, demonstrate why copyright law is bad for creators and industry innovators alike. Why’s that a problem? Well, it’s a problem because, as is often the case with the copy-left, he doesn’t see fit to talk to tell the full story as to how crucial copyright protection is for those whose livelihoods depend on content creation. Khanna lists Hank Shocklee of Public Enemy, as an example of an artist constrained by current copyright law, but fails to mention that while Shocklee is a musician, he’s known for work often derived from sampling the work of others. His situation is not exactly representative of all artists, musical or otherwise, who have a stake in this debate.
Why not talk to some 45% of professional musicians who are no longer working in large part because our current copyright law is flouted by today’s digital pirate profiteers? Why not make mention of the independent filmmakers whose innovations are routinely stolen and monetized by bootleggers and online thieves?
Mr. Khanna also drones on in typical fashion about the DMCA. Yes, it’s an outdated law, but not for the reason he states. It’s outdated because it’s unworkable for creators, small and large, because its “safe harbor” provisions make protecting one’s content from pirate profiteers nearly impossible. He closes his piece by saying:
We can craft a system of copyright that compensates rights holders and incentivizes innovation for start-ups and new artists. It is not an either or proposition. But we’ll only get a balanced copyright system if Congress hears from a broad range of voices. It can’t just be special interests controlling the debate, writing the amendments in backrooms, and writing big checks to members of Congress.
True enough, BUT please remember that artists ARE innovators and that the tech industry represents a big “special interest.” Next time hearings are held in Washington let’s hope that a diversity of creator’s voices is heard rather than a panel of legal theorists–and if he writes about copyright reform again, perhaps Mr. Khanna would be wise take the same “balanced” approach he’s suggesting for members of Congress.
by Ellen Seidler | Copyright, Piracy, Politics
This week there’s been an uproar about a billboard that ostensibly asks artists to “pick a side” as to whether they support piracy or not. According to the NY Times:
For the last week a mysterious ad has flashed on the LED billboard above the American Eagle Outfitters store at Broadway and 46th Street, just over the bronze shoulder of George M. Cohan. Variably positing piracy as “criminal,” “progress” and “the future,” it asks the observer to “pick a side” on Twitter, as #artistsforpiracy or #artistsagainstpiracy.
It turns out that the entity behind the flashing billboard is a rather innocuous Brooklyn based band (of two) named “Ghost Beach.” The apparel company “American Eagle” had arranged for band’s use of the billboard as part of a deal to license one of their songs.
In posting the provocative messages, band member Josh Ocean explained their intent to the New York Times: “Since we started we’ve given away all our music for free, so just telling people to purchase our music somewhere didn’t seem natural for us. So we said, ‘What if we take advantage of this and open up a discussion about the new music industry?’ ”
Definition of piracy found at dictionary.reference.com
The ad agency TBWA\Chiat\Day created the campaign on a pro bono basis for the band and certainly it’s been successful in raising their profile. Unfortunately, as is often the case with advertisements, the challenge posed by the flashing LED in Times Square is based on a false equivalency. Though purported to be designed to generate discussion about a worthy topic, in reality the campaign is merely a slick and sophistic illusion that does little to advance, or inform, artists (or anyone else) about scenarios for music distribution in our digital age.
While it’s worthwhile for artists to debate such issues, it’s disingenuous to equate the choice to give one’s music away as being equivalent to piracy. Piracy is not about giving, it’s about stealing.
Despite the advertisement’s apparent theme, Ocean told the New York Times the band doesn’t support piracy:
“We are against piracy in the sense that we are for new technologies and using the Internet in a way that wins over it by us giving away our music directly to fans,” Mr. Ocean said. “That way we know where the music is going and can establish that connection directly with fans.”
“We never want to promote blatantly going out and stealing music,” he added. “What we do want to do is offer choices that we think are right.”
If you don’t want to promote “stealing music” then perhaps you should think twice before allowing an ad agency to glibly frame a discussion about digital distribution around the mendacious premise that artists must be either “for” piracy or “against” it because last time I checked, the definition of piracy includes:
“the unauthorized reproduction or use of a copyrighted book, recording, television program, patented invention, trademarked product, etc.”
Note the key word being “unauthorized.” When artists choose to give their work away, they’re not choosing to support piracy, they’re choosing to offer their creations to the public at no cost. It’s a distribution decision any artist is free to make, but please don’t call it piracy…
by Ellen Seidler | Copyright, Piracy, Politics
Billboard reported on a SXSW panel “Copyright & Disruptive Technologies” held last week in Austin. The panel included moderator Margot Kaminski, executive director of the Information Society Project at Yale Law School; Andrew Bridges, partner at Fenwick & West LLP; Ben Huh, CEO of the Cheezburger Network; Derek Khanna, visiting fellow at Yale Law’s Information Society Project; and Wendy Seltzer, policy counsel to the World Wide Web Consortium.
Not exactly a “balanced” panel on the issue, so it wasn’t surprising to hear them echo well-worn talking points critical of current U.S. copyright law. As is typical of such panels, real facts presented seemed few and far between.
Attorney Andrew Bridges’ secured the chutzpah award for the day when he suggested that copyright owners should “lose” protection under copyright law if they sent more than 6 erroneous DMCA takedown notices. According to Billboard:
People on both sides of the SOPA/PIPA debate can probably agree that copyright law and enforcement ensnares some undeserving individuals and businesses. Attorney Andrew Bridges, a partner at Fenwick & West LLP, recovered the Dajaz1.com domain after the Immigration and Customs Enforcement (ICE) determined the New York-based hip-hop site had violated copyright law. ICE dropped the case after a year of secret requests for more time to file paperwork….
Bridges had a suggestion to prevent record labels and movie studios from sending false-positive infringement notices: copyright owners lose protection under copyright law if they send six false infringement notices. The comments were met with loud applause.
The crowd’s pleasure not withstanding, it’s important to understand that a takedown as part of the government’s “Operation in Our Sites” anti-IP theft enforcement, is not equivalent to a filmmaker, or musician, sending a DMCA notice to demand takedown of an infringing file. Certainly these such takedown notices are occasionally sent in error, but does the harm done by that really outweigh the harm done by the massive online copyright infringement (piracy) that currently thrives online? If a rights holder is forced to send literally tens of thousands takedown notices to safeguard their content is it really unreasonable to believe that a few erroneous ones would be sent?
The idea that there’s any actual harm done by false takedowns is vastly overblown.
In the anti-copyright lobby’s opposite-world a takedown sent to an “innocent” party brings the spectre of prison and/or poverty. In the real world it’s generally an email. If sent in error, the aggrieved party can, often with the click of his mouse, respond with a counter notice and explain why the takedown was in error. Usually that’s the end of it. Case closed.
If the sender of the original DMCA notice wants to ultimately enforce what they believe to be a legitimate takedown they must then go to court (and spend money) to prove their case. If anything, this set-up favors pirates who knowingly upload infringing content. I’ve witnessed situations where counter-notices where filed (even though the uploader didn’t own rights to the material) thus nullifying the original (albeit legit) takedown. It ended with the infringing content remaining online because the rights owner couldn’t afford to go to court. What do pirates have to lose by filing a counterclaim, even if it is a lie?
Sometimes an uploader will file counterclaim based on the principle of “fair use.” If it’s legit, rights holders will generally allow it to remain online. However not every “fair use” claim is valid. I’ve had the experience on YouTube where my entire film was uploaded. When I filed a takedown notice the user specified “fair use” as the justification for the upload. In that case I sent a friendly email to the uploader and included a link explaining the perimeters of “fair use.” The file was ultimately removed, no courtroom required.
In other instances, the line between fair use and copyright infringement is not so clear. The oft-sited Dancing Baby video, featuring Prince’s “Let’s Go Crazy” was taken off YouTube after a complaint by the Universal Music Group. The uploader filed a counter-notice and the video was restored to YouTube. Not satisfied with having the video restored, the uploader sued UMG for “bad faith” in having sent the original takedown. In that case no apparent “harm” was done, yet the issue ends up in court and the uploader becomes a “free speech” hero (her case supported in part by the EFF, the Electronic Frontier Foundation ) while the creator is vilified.
Yet, Dancing Baby aside, it’s important to note that despite hyperbole to the contrary, “record labels and movie studios” are not the only entities that send takedown notices. Independent artists, who don’t have a bevy of lawyers (or an entity like the EFF) at their disposal, are particularly vulnerable to the damages of piracy, but generally cannot afford to fight (false) counterclaims. Tell me again who is the victim in this scenario?
The talking points echoed by the panel at SXSW reflected the anti-copyright lobby’s disingenuous mantra that content creators seeking to protect their work from theft should be viewed as criminals, while those who brazenly steal (and monetize) the work of others are somehow the “innovators.” Are you serious? I hate to break it to these folks, but the tech industry does not have first dibs on the adjective “innovative.” Creative artists have always thrived on the cutting edge–and while the modern-day tech industry has developed new means of delivery and consumption–their innovations would be useless were it not for the content their products deliver. In many ways, creative content is the fuel has fed the tech revolution. Why can’t we have a discussion that acknowledges this symbiosis, rather than diminishes it?
As for the ICE seizures, it’s certainly a subject worthy of discussion, but not one that should be equated with DMCA takedown notices. Of course muddying the waters to obscure the truth plays to the advantage of those who see copyright law, and any effort to enforce it, as “disruptive” to their bottom line.
Derek Khanna first came to public notice in 2012 after writing a lopsided anti-copyright “policy brief” for Republican Study Committee called “Three Myths About Copyright Law and Where to Start to Fix It.” A day after the document was released it was withdrawn and Khanna lost his job at the end of the 112th Congress. He blamed wealthy donors in the “entertainment industry” for his dismissal and quickly became a martyr for the anti-copyright cause. He ended up at as Yale Law Fellow with the Information Society Project.
