Category: Copyright

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Conferences Copyright

The Evolving Music Ecosystem Conference: Day Two Recap

The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the second of three posts (see day one recap and day three recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.

Rosanne CashBy Bradfield Biggers

On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.

This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.

SESSION 3: WHAT IS THE SCOPE OF A MUSICAL COMPOSITION?

Music copyright is unusual in that it can consist of two separate kinds of registered works. Musical compositions are the underlying song, most easily thought of in terms of notated sheet music. Sound recordings are particular performances captured in a recording. This panel focused on current hot topics in the composition rights. Panelists considered: how to determine the scope of composition for composers not fluent in written notation (including social justice aspects); whether and how juries should be used in assessing substantial similarity between works; new distribution and licensing models; whether it makes sense to distinguish compositions from sound recordings in today’s beats-forward studio-based composition approach for pop music; and AI compositions.

The panel included Prof. Robert Brauneis from the George Washington University Law School, Richard S. Busch of King & Ballow, Robert Clarida of Reitler Kailas & Rosenblatt, and Prof. Joseph Fishman from Vanderbilt University. The panel was moderated by CPIP Executive Director Sean O’Connor.

Robert Brauneis started the panel by clarifying that unlike the modern U.S. copyright landscape, the Copyright Act of 1909 required artists to deposit their compositions with the U.S. Copyright Office in the form of music notation to receive federal protection. If the artist submitted only a “lead sheet” with the lyrics and melody, the federal copyright protection was limited to what was in the lead sheet. However, after the passing the 1976 update to the U.S. Copyright Act, artists could deposit sound recordings instead of lead sheets, thereby providing protection for any musical elements in the entire recording. Prof. Brauneis then noted that the courts have regularly identified that the 1976 Copyright Act is retroactive. This means that artists with sound recordings made before 1972 could deposit their sound recordings and receive broad federal copyright protections in their work. This had a big implication because it allowed portions of a sound recording that may not have been notated in a lead sheet to receive copyright protection. This offered artists a broader set of rights in their music, which he argues is much more representative of how we perceive music rather than by the limited notations of lead sheets.

Richard Busch then used Prof. Brauneis’ presentation on the implications of offering copyright protections to sound recording instead of limited lead sheets to transition into a conversation about the notorious Williams v. Gaye lawsuit. Also known as the “Blurred Lines” case, it concerned whether Pharrell Williams and Robin Thicke’s “Blurred Lines” infringed the classic Marvin Gaye song, “Got To Give It Up.” The Blurred Lines case, which Mr. Busch litigated on behalf of the Gaye estate, furthered copyright jurisprudence by cementing that some combination of musical elements—even a unique combination of uncopyrightable elements—can maintain an infringement action. And to provide clarity and closure for those in the audience who did not follow the case, Mr. Busch explained how a similarly placed parlando present in both songs may have brought about the victory for the Gaye estate.

Robert Clarida then returned the conversation to the implication of allowing a sound recording to be deposited with the U.S. Copyright Office. Mr. Clarida noted that lead sheet deposit copies generally leave out many of the characteristic elements of songs, such as the guitar solo in “Hotel California” by the Eagles. To emphasize the importance of allowing copyright protection to exceed the lead sheet, Mr. Clarida highlighted how the strict observation of a lead sheet affected the Skidmore v. Led Zeppelin lawsuit. There, Led Zeppelin was sued for copyright infringement due to a piece that allegedly had similar elements to their megahit “Stairway to Heaven.” However, since Led Zeppelin had only deposited a lead sheet instead of the sound recording, the court remained ignorant about the true aspects of the song embodied in the sound recording. Consequently, the court did not consider the “undeposited authorship,” as Mr. Clarida put it, which could have resulted in an entirely different ruling.

Prof. Joseph Fishman turned the panel towards defining the scope of actionable similarity in copyright infringement cases. He recognized that this was a particularly interesting issue in the Blurred Lines case because it did not concern the top-line melody. Prof. Fishman explained that the earliest infringement lawsuits focused almost exclusively on whether there was a misappropriation of the top-line melody. However, there has been a modern trend of expanding protection to any combination of identifiable musical elements, as evinced by the Blurred Lines court. Prof. Fishman then went on to note that this modern shift in copyright jurisprudence increases the cost and complexity of litigating infringement cases because now they require expert testimony and jury verdicts.

KEYNOTE LUNCH / FIRESIDE CHAT

Singer, songwriter, Grammy winner, and best-selling author Rosanne Cash gave the keynote fireside chat from her home in New York. Ms. Cash is a devout artist advocate and a friend of CPIP, and she has testified to the U.S. House of Representatives on behalf of artists. She is also a major proponent of the Artist Rights Alliance organization.

Prof. Aistars opened the conversation by asking Ms. Cash about her personal music ecosystem. “I don’t ever think about it being all about me,” she responded. Ms. Cash believes the music ecosystem is about “provid[ing] work for each other” and that it relies on flight attendants, audio engineers, bus drivers, background vocalists, and all other tangential participants to function. She finds that everyone in the music ecosystem is family because they all speak the same language and inspire one another. As for her personal music ecosystem, Ms. Cash expressed her gratitude for all of her support—from road crews to studio assistants—and for the devotion of her fan base. However, her music ecosystem’s nucleus centers around her “in-house” producer, co-writer, sound engineer, and husband, John Leventhal.

Highlighting the expanse of Ms. Cash’s definition of what the music ecosystem includes, Prof. Aistars then queried Ms. Cash about what she thinks is the most important element for building a thriving creative community. Ms. Cash emphasized that “support for the arts is key.” She expressed her frustration with how quickly public schools have cut funding for the arts, thus demolishing the foundational support system of creative young students. Ms. Cash’s concern is that while schools are willing to provide support for students who are inclined to pursue math and science, there is a lack of educational support and nourishment for those with creative dispositions. This disparity contributes to a discounting of the arts in the public’s mind and stifles innovation in the American arts.

Ms. Cash also noted that a thriving creative community cannot survive if that community does not support its venues for showcasing the arts as well as those who create it. As small music venues continue to close due to COVID-19’s effective moratorium on in-person live music, Ms. Cash believes the creative communities that rely on those venues will disappear with them. She then stressed the importance of the Artist Rights Alliance and other nonprofit artists’ organizations that provide financial support and health care to artists. She also said that federal and state funding is crucial if artists are to survive this global pandemic. Ms. Cash brought attention to France’s recent budget allocation of $2 billion for supporting artists during the pandemic. She is disappointed that while U.S. legislators have supported other service industries, they are unwilling to put the same level of support towards protecting those who enrich and drive our American culture. As Ms. Cash put it, “We are in the service industry–we serve the heart and soul.”

Prof. Aistars then transitioned the conversation to the lighter subject of Ms. Cash’s creative process—specifically, as a songwriter and best-selling author, if her process varies depending on whether she’s writing prose or lyrics. Ms. Cash prefers to create lyrics in the comfort of her kitchen, which is supplied with a guitar, microphone, and digital audio workstation. Also, she finds that regular breaks are necessary for her creative process when writing songs. Ms. Cash notices that many times, after she’s taken a break to go to the store or run an errand, the song has found a way of finishing itself when she picks the guitar back up.

In contrast to the loose framework of Ms. Cash’s songwriting, she admitted that when writing prose, she appreciates having a word count, a defined topic, and a due date. She believes that song structure is like a house with blueprints: the rhyme scheme and each verse are built together in an existing structure. However, when writing prose, the piece’s blueprint is not as apparent, so she finds it easier to get lost. Consequently, Ms. Cash finds subtle comfort in the certainty of having defined parameters to guide her construction of the prose.

Prof. Aistars then recounted when Ms. Cash testified in front of the House Judiciary Committee on behalf of artists in 2014, which reference gave way to a discussion on Ms. Cash’s further artist advocacy work with the Artist Rights Alliance (ARA). The ARA seeks to achieve fair treatment and compensation for working musicians, performers, and songwriters online through advocacy work and by promoting its “Artists’ Bill of Rights.” Ms. Cash, who sits on the organization’s board, feels passionately about getting the voice of the ordinary musician heard. Although, she readily admits that she is “planting a garden I will never see bloom.” Ms. Cash discussed how she is particularly passionate about having the Artist Rights Alliance help artists receive attribution for their work, prevent politicians and other groups from using an artist’s work to promote their ideologies, and achieve just compensation.

In line with Ms. Cash’s conversation about politics, Prof. Aistars then asked her about how important the First Amendment is to her. Ms. Cash said that as a person who is loudly anti-gun violence and a regular public commentator on politics, she thinks the First Amendment is a crucial part of being an American. Ironically, she mentioned how many people expect musicians to not be involved in political discourse and instead “shut up and sing.” And while pointing out that this request is “anatomically impossible,” Ms. Cash emphasized—referring to a statement by American musician Tom Morello—that she “did not set down my First Amendment rights when I picked up my guitar.” She believes art is supposed to make the audience uncomfortable and arouse feelings, so artists should be encouraged to voice opinions that challenge the political beliefs of others.

Finally, Prof. Aistars concluded the keynote by asking about how Ms. Cash has been affected by the COVID-19 crisis and what others can do to help artists during these difficult times. Ms. Cash reflected on how interesting it is that COVID-19 shutdowns have made her “miss what I wanted to lose.” She discussed how before the pandemic she regularly missed home while touring because the road can be quite taxing. Also, her first true love is songwriting, which she finds difficult to do on tour. However, her long absence from touring due to the global pandemic has made her realize how much she misses connecting with her fans, working with the tour crew, and performing.

Ms. Cash encouraged everyone listening to the fireside chat to not take the message of this conference lightly. She stressed that music communities and ecosystems around the nation and the world are hurting, but there are certainly things people can do about it. She encourages people to donate to organizations that support independent artists directly, such as MusiCares and the Artist Rights Alliance. Also, to support music communities themselves, people need to donate to independent creative venues so that artists have a place to feature their work once people can return to public spaces and concerts. Finally, and most importantly—buy music! Ms. Cash says that if we are going to build a sustainable music industry for everyone, people need to move away from the free tiers of streaming platforms.

Ms. Cash ended the fireside chat with humbling words of appreciation for everyone involved in The Music Evolving Ecosystem conference and by showing a music video of her song “We’re All in This Together.” John Paul White and Ms. Cash wrote this song and made this video during the pandemic shutdowns, and all proceeds from the video go to the Music Health Alliance to help artists receive health care.

SESSION 4: THE NEW ROLE OF RECORD LABELS & PLATFORMS

From MP3s to YouTube to Spotify, the way we listen to music in the digital age has changed considerably over the past twenty years. At a time when physical copy records and full-length albums have been replaced by the streaming single, what role does a record label play? And as traditional lines between creator, copyright owner, and distributor continue to blur, how will labels and streaming services work together to ensure that artists are appropriately compensated and incentivized? This panel, moderated by Prof. Loren Mulraine of Belmont University College of Law, explored recent developments in copyright law as they apply to the music industry and looked ahead to how music ecosystems will evolve in the coming years.

Mitch Glazier of the Recording Industry Association of America (RIAA) began the panel by highlighting that while the COVID-19 crisis has created a sudden shift in the performance and monetization of music, this is not the first time record labels have met the challenges of a seemingly overnight evolution of the music industry. Mr. Glazier explained that over the last twenty years there have been five major inflection points marking evolutionary bursts of the music industry. It began with a Supreme Court victory in MGM Studios v. Grokster that brought certainty to the prospect of legal recourse for rights owners in the lawless landscape of peer-to-peer music piracy of the early 2000s. This was followed by Apple’s iTunes, the first secure, consumer-friendly online music distribution platform. Then, as the 4G internet revolution made mobile music streaming feasible, record labels introduced an entirely new catalog licensing dynamic when they brought Spotify to the United States. Finally, Mr. Glazier identified that the music industry is in the midst of establishing its most recent inflection point, which involves social media. To achieve this inflection point, record labels will need to create a licensing regime with social media platforms that is beneficial to technology companies and profitable for artists.

Mark Baker from Warner Music Group (WMG) then discussed how modern record labels are evolving to fit the contours of this rapidly expanding music landscape. Baker identified that record labels have always amplified the creativity of artists by providing the marketing, licensing, and career development expertise of their staff. And while modern artists have unprecedented access to online distribution and licensing opportunities, putting together a comparable artist development team piecemeal to service an artist’s career is no easy feat. Mr. Baker finds that traditional full-service record label agreements remain essential for many artists, but the needs for other artists have evolved with music technologies. WMG recognized this a number of years ago, which caused the label to create the a la carte artist service company, Alternative Distribution Alliance (ADA). Unlike a full-service record agreement, ADA allows independent record labels and artists to select individual creative services to leverage WMG’s global infrastructure. Mr. Baker suggested that ADA’s a la carte model shows WMG’s commitment to keeping pace with music technology.

Garrett Levin of Digital Media Association (DiMA) then expanded the scope of the conversation from how labels are evolving to digital technology to how artists’ careers can shift to utilize the power of streaming technology. Mr. Levin explained that while record income has dropped dramatically since the late 1990s, streaming revenue and subscriber numbers have been increasing at a promising rate. In addition to the prospect of increased record income, artists receive a multitude of other benefits when they embrace streaming technologies. Specifically, artists have more access to fans and granular consumption behavior data that will change how artists create and operate their business. Mr. Levin went on to suggest that artist-to-fan relations will become closer than ever through this technology’s ability to create custom music programming and connect with fans through their mobile devices.

In contrast to Mr. Levin’s unbridled enthusiasm for digital technologies, Prof. Larry Miller from NYU Steinhardt painted a more cautious picture of streaming. Prof. Miller highlighted that streaming technology’s ability to give consumers access to millions of artists only makes it more difficult to rise above the noise. He insisted that theoretical discoverability in a vast pool of artists is not the same as practical discoverability that will allow artists to create sustainable music careers. Additionally, Prof. Miller suggested that the low royalty rates of streaming have converted music into a consumption business plagued by sales plateaus. These sales plateaus occur because low revenue rates, coupled with the physical consumption limitations of fans, require artists simultaneously to pursue a variety of revenue sources, such as streaming, merchandise, and vinyl. Prof. Miller notes that this is where the expertise, infrastructure, and connections of record labels provide the most value to artists. Finally, he emphasized the importance for music industry participants and students to have a basic understanding of data science to survive in our data-driven music industry.

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Conferences Copyright

The Evolving Music Ecosystem Conference: Day One Recap

The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the first of three posts (see day two recap and day three recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.

Rosanne CashBy Bradfield Biggers

On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.

The past year has seen major changes to the music ecosystem and the laws and policies integral to its viability. For example, while the Music Modernization Act (MMA) provided a much-needed update to the way artists’ creative contributions are recognized and supported in the digital age, debates over royalties, infringement, piracy, and new distribution models remain. Diverse issues surrounding ownership and control of data, music festival arrangements, and the nature of artists’ roles in the gig economy have also made headlines. Despite encouraging steps forward and seemingly unlikely partnerships, arriving at a place of balance in music—where respect for artists and others on the music production side is just as important as facilitating innovative models for listener access—requires more work and cooperation.

This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.

OPENING REMARKS & INTRODUCTIONS

CPIP Director of Copyright Research and Policy Sandra Aistars opened the conference by noting the aptness of coming together (albeit online) for music during a time when the global COVID-19 crisis has shut down much of the world. Prof. Aistars highlighted how music is a tool for eliciting solidarity during difficult times, and our current global pandemic is no exception. Prof. Aistars described how earlier this year, Italians banded together to play with and for each other from the balconies of their homes during the peak of their COVID-19 national lockdown. She found this brought home the importance of nourishing the music ecosystems that, in turn, nourish our communities.

Prof. O’Connor also wanted to emphasize that The Evolving Music Ecosystem would not be your garden-variety music law and policy conference. Where many music conferences fall into the mold of offering panel after panel of esoteric copyright infringement discussions, Prof. O’Connor wanted this conference to take a holistic approach that covered the entire music ecosystem. And while admitting there would be panels covering the copyright infringement landscape, his intention for this conference was to delve deep into pressing issues for working songwriters, performers, musicians, and other music stakeholders. By aligning with the broader music ecosystem, he hoped this conference would empower not just citywide music ecosystems, but also those spanning the national and the globe.

SESSION 1: IMPLEMENTING THE MUSIC MODERNIZATION ACT

The Music Modernization Act (MMA) is a revolutionary legislative bill that was the result of complex negotiations and compromises among songwriters, publishers, record labels, digital service providers (DSPs), and other music industry stakeholders. The MMA, among other things, set the framework for a new composition database and blanket mechanical licensing system, and designated the Mechanical Licensing Collective, Inc. (MLC) to administer it. Although the MMA was enacted in 2018, discussions of how this licensing system will be implemented continue to be prominent in music industry and academic circles alike. With the MLC beginning to administer blanket licenses under this new licensing regime on January 1, 2021, there is no better time to discuss the implementation of this legislation.

The panel included Danielle Aguirre from the National Music Publishers Association, Adam Gorgoni from the Songwriters of North America, Lisa Selden from Spotify, and Regan Smith of the United States Copyright Office. The panel was moderated by Prof. Mark Schultz of the University of Akron School of Law.

Danielle Aguirre set the stage for the panel by offering background information about how the MLC will administer mechanical licenses as a blanket license and how revolutionary this is in light of the old system of individual licensing. Ms. Aguirre explained that while digital service providers (DSPs), such as Spotify and Google, will fund the MLC, it will be the publishers and songwriters that will actually govern the administration of their royalties. She hopes this separation of funding and administration will align the incentives of DSPs and creators, as well as offer trust and transparency for all music stakeholders. Ms. Aguirre believes that the data quality initiatives and software the MLC is developing internally will allow the MLC licensing system to run as smoothly as possible when it launches at the end of this year.

Regan Smith then offered her perspective from the U.S. Copyright Office. Ms. Smith explained that the MMA created criteria for the MLC to operate, but it also went on to grant the Office discretion to regulate issues or schemes that may arise during the MLC’s implementation that were not contemplated by the MMA drafters. Consequently, the Office has been working with all music industry stakeholders to ensure the MLC comes together smoothly. In addition to the regulatory function, Ms. Smith said that the Office focuses on providing educational programs and materials to educate artists and the public about the MLC.

Ms. Smith was followed by songwriter and Songwriters of North America (SONA) founder Adam Gorgoni, who discussed how the previous licensing regime was unsustainable for artists, spoke on the importance of educating artists about music metadata, and provided insight into how SONA represented artists in the MMA negotiations. Reflecting on the MMA negotiations, Mr. Gorgoni recognized that the legislation was not perfect and that tradeoffs were made, but he was confident that the most important points for artists were included. Ultimately, Mr. Gorgoni found one phrase regarding the creation and negotiation of the MLC to be the most applicable: “Don’t make the perfect be the enemy of the good.” This mantra resonated with rest of the panelists.

Lisa Selden then offered her opinion about the negotiations and implementation of the MMA through the perspective of the licensees. In addition to her work at Spotify, Ms. Selden represents Spotify on the board of directors of the Digital Licensee Coordinator (DLC), which is a nonprofit entity that coordinates and represents the interests of DSPs. The DLC board members include representatives from other prominent DSPs, such as Apple, Amazon, Google, and Pandora. Ms. Selden emphasized the importance of the DLC in relation to the MLC, but she also discussed the challenges of creating a single voice from the diverse motivations of each individual digital DSP.

SESSION 2: THE CHANGING NATURE OF SOUND RECORDING RIGHTS 

The sound recording category of music copyrights has been more limited in some ways than the composition category. Sound recordings received no federal protection before 1972 and then afterwards that protection did not apply to terrestrial radio broadcasts. The recent Music Modernization Act (MMA) extended a measure of protection to pre-1972 sound recordings, while proposed legislation would allow sound recording owners to seek compensation from terrestrial radio stations for public performances of their works similar to the system for digital webcasters and streaming. The panel, moderated by Prof. Steven Jamar of Howard University School of Law, discussed the current state of sound recordings, their curious history under U.S. law, and their future in the digital streaming age.

Producer Mikael “Count” Eldridge of Vertebrae Productions opened the panel with a sobering call for an artist-first focus to music industry discourse. He explained how the media and music industry often marginalizes the financial struggles of individual creators when it focuses purely on the macroeconomics of the touring and recording businesses. He believes this flaunting of aggregate music statistics—driven by the top 1% of artists—misleads the public as to the status of artists’ livelihoods and that this in turn perpetuates the myth that the artists on streaming services could earn a living by simply selling t-shirts and touring. Mr. Eldridge stressed that if we cannot increase streaming subscription fees to increase royalty rates for artists, we will lose the music and voices of thousands of independent artists who provide invaluable political and cultural contributions. He concluded by highlighting that many of these issues for independent artists are tackled in his forthcoming documentary Unsound, for which he is currently curating a lecture circuit tour.

Agreeing with Mr. Eldridge’s push for artist-first discourse, SoundExchange’s Brieanne Jackson gave a brief history of how her organization is empowering the lives of artists with its collection and distribution of digital performance royalties. Ms. Jackson then emphasized how SoundExchange not only fuels the lives of modern artists but was also instrumental in getting legacy artists compensation for their pre-1972 sound recordings. Before the MMA was enacted in 2018, artists prior to 1972 received no federal copyright protection or statutory compensation for their sound recordings. However, due in part to SoundExchange’s advocacy, pre-1972 sound recordings now receive protections under the MMA. Today, SoundExchange continues to push for artist sound recording rights in the U.S. by advocating for the Ask Musicians for Music Act (AM-FM Act), which was introduced to the U.S. House of Representatives in late 2019. Ms. Jackson explained that the AM-FM Act would finally provide sound recording rights owners with compensation when their music is played over terrestrial radio.

Attorney Eric Schwartz of Mitchell Silberberg & Knupp carried forward Ms. Jackson’s conversation of pre-1972 sound recordings by diving into how Congress came to include federal protections in the MMA for pre-1972 recordings, as well as its implications for artists. Mr. Schwartz explained that before the MMA, pre-1972 sound recordings were only protected by state and common law instead of federal law. This meant that while pre-1972 sound recordings did not generate digital performance royalties from streaming companies, rights owners had hoped they could use their state rights to pursue more effective infringement actions for online piracy directly, rather than through the broken notice-and-takedown and safe harbors regime of the Digital Millennium Copyright Act (DMCA). However, once the Second Circuit held that the DMCA safe harbors applied to pre-1972 recordings, artists and policymakers began to pursue a digital performance right for rightsholders, which manifested in the MMA.

Mr. Schwartz next highlighted that recent legislation in Canada, as a result of the United States-Mexico-Canada Agreement (USMCA), and a judgment by the European Court of Justice will provide U.S.-based artists the same rights (e.g., national treatment) that Canadians and EU citizens enjoy in their own territories resulting in significant new payments to American producers and performers from these territories. Lastly, he mentioned that the U.S. Copyright Office has proposed a new rule to allow certain artists to register entire albums of up to twenty songs at once, which will greatly cut down the expense and headache of registering copyrights for multiple works.

The final panelist was Todd Dupler of the Recording Academy, who discussed the implications of the MMA’s new “willing-buyer-willing-seller” standard for rate court proceedings and the introduction of the AM-FM Act. Mr. Dupler explained that before the MMA, the standard used to set the statutory royalty prohibited judges from considering what a licensee might pay for a license in the open market. As a result, this standard prevented artists from receiving just compensation for their work. However, with the MMA’s new standard, judges can consider how the fast-paced technology market values music and what a potential licensee may be willing to pay for using music. Mr. Dupler concluded with highlighting the Recording Academy’s advocacy of the pending AM-FM Act, which would provide artists with an additional source of revenue by creating a performance right in sound recordings for terrestrial broadcasts. Importantly, this sound recording performance right would require the radio industry to finally compensate recording artists for their music. However, Mr. Dupler stressed that if artists are going to pass this transformative legislation, they and the public need to “speak out and speak up.”

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Copyright

Senate IP Subcommittee Hearing Addresses Section 1201 Reform

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

U.S. Capitol buildingBy Liz Velander

Last week, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a hearing entitled “Are Reforms to Section 1201 Needed and Warranted?” The hearing explored Section 1201’s operation, as well as potential reforms to improve the effectiveness of Section 1201 in the administration of the triennial rulemaking proceeding that establishes temporary exemptions. Chairman Tillis was particularly interested in hearing proposals to further streamline the rulemaking process and to amend the statute so that exemptions permit third-party assistance.

The hearing consisted of two panels. First, the U.S. Copyright Office, who administers Section 1201 rulemaking. Second, industry and academic experts who shed light on how Section 1201 has been working for copyright owners and users, and the practical implications of potential reforms. Regan Smith, General Counsel and Associate Register of Copyrights, U.S. Copyright Office, was the sole panelist on Panel I. Panel II included: Vanessa Bailey, Global Director, Intellectual Property Policy, Intel Corporation; Professor Blake Reid, Director, Samuelson-Glushko Technology Law & Policy Clinic, University of Colorado Law School; Matthew Williams, Partner, Mitchell Silberberg & Knupp LLP; Seth Greenstein, Partner, Constantine Cannon LLP; Morgan Reed, President, ACT | The App Association; and Aaron Lowe, Senior Vice President, Regulatory and Government Affairs, Auto Care Association.

Section 1201 of the Digital Millennium Copyright Act (DMCA) protects “technological measures,” also known as “technological protection measures” (TPMs), employed by copyright owners to protect their works from unauthorized access or use. Section 1201 gives copyright owners a cause of action when someone circumvents TPMs that have been employed to prevent unauthorized access or use of their copyrighted works. Common examples of TPMs include password systems that prevent nonsubscribers from accessing streaming services, code that prevents DVDs from playing on unauthorized devices, and code that prevents a purchaser from copying the text of an e-book or sending the file to others.

Congress enacted Section 1201 to foster a lawful online market for copyrighted works while providing several statutory exemptions to avoid impeding lawful uses. For additional flexibility, the law authorizes the Librarian of Congress to adopt temporary exemptions following a rulemaking proceeding administered by the Copyright Office every three years. During the triennial rulemaking, the Copyright Office solicits exemption petitions from the public and develops a comprehensive administrative record using information submitted by interested parties. Based on the evidence submitted, the Register of Copyrights provides a written recommendation to the Librarian of Congress as to which exemptions are warranted, along with proposed regulatory text. Upon the Librarian’s approval, the exemptions are published in the Federal Register and remain in effect for three years.

In the seventh triennial rulemaking (2017-2018), the Copyright Office instituted a new “streamlined” process for renewing existing exemptions. In this streamlined process, proponents of an existing exemption can petition to have the exemption renewed by certifying that they are not aware of material changes in fact, law, or other circumstances that would justify reevaluating the basis for the exemption. If the Copyright Office does not receive an objection outlining relevant new circumstances, the exemption will be renewed without going through the traditional three-step commenting process. These changes have greatly improved the efficiency of the rulemaking process.

On the first panel, Ms. Smith, representing the U.S. Copyright Office, explained the crux of the dispute about Section 1201 reform. On the one hand, “some Section 1201 stakeholders credit the subsequent explosion of legitimate digital dissemination models to the protection established by section 1201 in 1998.” On the other hand, “stakeholders express that the growing ubiquity of software-enabled products in American life—automobiles, refrigerators, medical devices, and so on—raises concerns that Section 1201 may be operating with an unintended reach that the permanent exemptions and the triennial rulemaking only partially address.” In 2017, the Copyright Office “completed a comprehensive study in the operation of the law, taking into account stakeholder perspectives throughout the copyright ecosystem.” It concluded that “while the overall framework of Section 1201 appears to be functioning as intended, the system would benefit from certain updates to the rulemaking procedures, as well as targeted legislative reforms.”

Ms. Smith listed the recommended legislative reforms in order of priority. First, for Congress to provide discretion in the rulemaking to adopt exemptions that permit third-party assistance at the direction of the intended user. Second, for reconsideration of several changes to the permanent exemptions for security testing and encryption research, “including expanding the types of permitted activities, easing the requirements to seek authorization from the owner of the relevant system or technology, and eliminating or clarifying the multifactor eligibility tests for certain statutory exemptions.” Third, for Congress to adopt new permanent exemptions, such as: “an exemption to enable blind, visually impaired, or print disabled person to utilize assistive technologies; an exemption for unlocking used mobile devices; and an exemption to allow diagnosis, repair, or maintenance of a computer program, including to circumvent obsolete access controls.” Finally, Ms. Smith recommended legislation to provide for presumptive renewal of exemptions adopted in the previous rulemaking cycle.

On the second panel, stakeholders argued for and against legislative reform. Ms. Bailey, representing Intel Corporation, testified that “the Librarian of Congress has struck the right balance between ease of use and content protection under the existing regulatory framework.” She described Section 1201 as “the bedrock on which the digital content ecosystem is built.” She urged against legislative revision, arguing that “the reliable protection provided by Section 1201 is essential to the maintenance of industry-standard TPMs and the digital content ecosystem.”

The next panelist, Prof. Reid, strongly disagreed with Ms. Bailey. He represented “people who are blind, visually impaired, or print disabled, educational disability services professionals, and security researchers.” Prof. Reid argued for expansive changes to the triennial rulemaking process, asserting that “the triennial review regularly imposes an unnecessary and unfair burden on decent, hard-working people who play by the rules and who merely seek to go about their livelihoods and serve their communities without fear of breaking a law that could subject them to ruinous liability in federal court litigation or even criminal charges.” Mr. Greenstein echoed many of Prof. Reid’s concerns about Section 1201’s overreach. He proposed a number of legislative reforms to the Subcommittee, such as allowing third parties to obtain the means to circumvent access in order to repair consumer products at the direction of the intended user. “Congress intended Section 1201 is protect copyrights, not business models,” stated Mr. Greenstein.

Senator Chris Coons (D-DE) sought feedback from other panelists about the suggestion that Congress provide the Librarian flexibility to allow consumers to seek third-party help. Mr. Reed, representing the App Association, asserted that we already have a “robust ability” to conduct authorized repair. Ms. Bailey agreed, stating “the Copyright Office has already taken steps to make the exemptions more usable.” She pointed out that “unlike anti-circumvention exemptions, which can be modified or abandoned if they prove less useful than expected, should an anti-trafficking exemption be improvidently granted, the effects on the marketplace would be permanent because the tools can’t distinguish between permissible and impermissible use.”

Senator Richard Blumenthal (D-CT) was specifically concerned about voting machine integrity, asking the panel whether they would support a permanent cybersecurity and voting machine exemption. Prof. Reid stated that such an exemption is “critical to the cybersecurity of this country and the future of our democracy.” Mr. Reed and Ms. Bailey both reiterated their position that a legislative change was unnecessary because the Copyright Office already had the flexibility to address the issue.

The hearing was cut short by a live vote, and Chairman Tillis concluded the hearing by thanking each panelist and stating that they may submit further comments to the record.

Categories
Copyright

RBG’s Legacy Can Guide High Court In Oracle Copyright Case

This post first appeared on Law360.

U.S. Supreme Court buildingAs America mourns the passing of one of its great civil rights icons and judicial pathmakers — Justice Ruth Bader Ginsburg — stakeholders and other observers must not only contemplate what her absence means for the upcoming election but also next month’s start of oral arguments at the U.S. Supreme Court.

Among other cases on the docket, the Supreme Court will hear oral arguments in the watershed copyright case Google LLC v. Oracle America Inc. on Oct. 7.

Justice Ginsburg’s Legacy

Justice Ginsburg inspired documentaries and Oscar-nominated, full-length feature films and made cameo appearances in three operas: twice with Justice Antonin Scalia in Richard Strauss’ “Ariadne auf Naxos” and also in Johann Strauss’ “Die Fledermaus,” where she, Justice Anthony Kennedy and Justice Stephen Breyer entered Prince Orlofsky’s ball in the second act of Fledermaus billed as “the Supremes.”

The justice had a deep appreciation for the arts that went beyond her love of opera. Two Mark Rothkos, a Josef Albers and a Max Weber — some on loan from the National Gallery of Art — hung in her chambers, and she took a literature class at Cornell University under Vladimir Nabokov, which she sometimes referred to in interviews and lectures, noting that law should also be a literary profession.

Given her love for the arts, it’s not surprising, then, that Justice Ginsburg was a knowledgeable justice in copyright matters. The justice authored numerous important opinions affecting creators’ rights and was highly respected for her ability to offer clear, concise judgments that were understandable even to ordinary readers.

Some of her most notable opinions in copyright law include: New York Times Co. v. Tasini — upholding protections for freelance authors in the digital age; Eldred v. Ashcroft — upholding Congress’ extension of the duration of copyright for existing and future works as consistent with both the copyright clause and the First Amendment; and Petrella v. Metro-Goldwyn-Mayer Inc. — articulating that the equitable defense of laches cannot be used to bar a claim of copyright infringement brought within the three-year statute of limitations window.

By the end of her career, she had earned the respect of arts and technology lawyers alike. For instance, in 2015 Justice Ginsburg was inducted into the Chiefs in Intellectual Property Hall of Fame for her commitment to the advancement of women in IP and technology careers. ChIPs was started by seven female chief counsels of patents and intellectual property at Silicon Valley companies to promote women in the high-tech industry.

Google v. Oracle: The First IP Case to Be Heard Without Justice Ginsburg

Now, with a momentous, tech-centered copyright case again making its way to the court, there’s a sad irony that one of the most thoughtful justices, able to cut to the heart of a matter and make it readily understandable, is no longer with us. But while Justice Ginsburg’s thoughtful scholarship and legal acumen will no doubt be missed by her colleagues in every case they consider, they’ll have her legacy to guide them in Google v. Oracle.

Google v. Oracle is a relatively straightforward case. Google committed an obvious act of copyright infringement for business convenience. Oracle Corp. owned Java, a creative and intricately crafted work of software, widely popular among device manufacturers and application designers.

Google wanted to compete but didn’t want to invest the time and resources needed to develop its own platform, nor did it wish to take any of the multiple licenses offered by Oracle, which would have required Google to make its platform interoperable with Java. So, Google copied over 11,000 key portions of code, along with the organizational structure and began competing with Oracle — earning billions of dollars in revenue using the code and structure it had copied.[1]

While Google doesn’t dispute that it took the code, it argues that the portions of Java in question are not copyrightable, that fair use justifies its unlicensed usage, and that the Seventh Amendment right to a jury trial prevents an appellate court from overturning a jury’s decision on fair use.[2] All of Google’s arguments are wrong.

Software is copyrightable.

Congress has protected computer code as a literary work under the Copyright Act since 1980, and it has never sought to limit protections applicable to software, despite the many opportunities it has had to do so.

As copyright scholars noted in an amicus brief to the court:

Even [in 1980,] at that relatively early stage in the development of the computer software industry, Congress considered versions of many of the arguments and issues present in this litigation, including whether computer code should be protected as a literary work, the degree to which computer programs can be considered “functional” or necessary “machine-controlled elements” (as opposed to expressive works protectable under the Copyright Act), and the interests of protecting and incentivizing innovation. After careful analysis and debate … Congress legislated that computer programs are protected under the Copyright Act with no qualifications that would differentiate software from any other type of literary work under the statute.

Since 1980, software development has grown exponentially, and its application continues to expand into new industries. Congress has amended the Copyright Act to address issues raised by technological advances in particular industries — by enacting, for example, the Computer Software Rental Amendments Act in 1990, the Digital Millennium Copyright Act in 1998, and the Music Modernization Act in 2018. Congress has not, however, amended the Copyright Act to decrease the scope of protection for computer programs. Because the statutory protections for computer software remain the same as for all other creative works, adopting Google’s position would amount to a judicially created software-specific amendment. It would also result in singling-out the protections afforded to computer programs, which contradicts the plain text of the Copyright Act.[3]

Google’s copying of Java doesn’t qualify as fair use.

Google’s arguments that its theft of Oracle’s code should be excused as fair use — a defense to copyright infringement intended to excuse limited uses of works, especially for noncommercial purposes, where the use does not compete with the original work — also fall flat.

There is no business convenience exception under the fair use doctrine. As the copyright scholars’ amicus brief noted:

Google and its amici try to characterize [their infringement] as “efficient infringement,” or “permission-less innovation.” Yet its conduct is entirely contrary to the goals of copyright law as expressed in the Copyright Act or the Constitution.[4]

In her 2018 opinion for the U.S. Court of Appeals for the Federal Circuit, in favor of Oracle, U.S. Circuit Judge Kathleen O’Malley said as much, writing, “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”[5]

While there is an essential role for fair use in copyright law, Congress and the courts have set reasonable parameters, which do not include business convenience or efficient infringement.

The Supreme Court can rule on fair use.

Having failed to convince past judges of the merits of its position, Google has now raised the argument that neither the appellate courts below, nor the high court’s justices can reverse the jury trial’s previous findings on fair use. Google made a last-ditch Seventh Amendment procedural argument challenging the standard of review applied by the courts, which the court will also consider.

That decision is also straightforward: The fair use issue was put before the court because of Oracle’s successful motion for judgment as a matter of law. A party is always entitled to a judgment as a matter of law if no reasonable jury could find for the nonmoving party.[6]

The Federal Circuit correctly found that only one finding is reasonable — that it is not fair use to infringe many thousands of lines of creative and intricately designed literary computer code for business convenience and to use it for the identical purpose in direct competition with Oracle.

Or, as Judge O’Malley put it: “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Hence, Oracle was entitled to a judgment as a matter of law regardless of the standard by which fair use is determined.

There are of course other, more nuanced, reasons to find for Oracle on this procedural issue as well. On a motion for judgment as a matter of law, the court determines matters of law de novo and assumes that all matters of fact have been found by the jury consistent with the verdict.

In applying the law to the facts, the court determines de novo any mixed questions of law and fact, especially where it is required to “expound on the law, particularly by amplifying or elaborating on a broad legal standard.”[7] Whether a use is a fair use is exactly the kind of determination that presents a mixed question of law and facts to be determined by a judge de novo.[8]

In making fair use rulings, judges routinely are called upon to balance the interests of property owners and the public, to ensure that the intent of the framers of the constitution are upheld by enforcing both the copyright clause and the First Amendment and to apply each of the four fair use factors in a manner that ensures the body of law develops in a stable fashion that the public can rely on. De novo standard of review for such an examination is thus entirely appropriate.

Conclusion 

While debates over who will replace Justice Ginsburg are focused on the political makeup of the court, for this case, as well as for many other IP-related matters, decisions are rarely influenced by a justice’s political leanings. The court of course aspires to politically unbiased justice in all matters, but copyright law in particular has always been an area where decisions are rendered without a view to whether one’s politics are progressive or conservative.

Nevertheless, the stakes in Google v. Oracle are high, and a strong opinion from the court is needed to ensure a company cannot blithely assert business convenience when it wishes to appropriate the creative work of another.

Although unlikely, it would be alarming if the court should be split 4-4 in its decision, but were that the case, the Federal Circuit’s ruling in favor of Oracle would stand, and the Supreme Court would not issue an opinion. Such a result, while technically correct, would be anticlimactic for copyright scholars and a missed opportunity for the court to once and for all time do away with the outlandish notion of efficient infringement.

[1] Brief of Respondent Oracle America Inc., Google v. Oracle, https://www.supremecourt.gov/DocketPDF/18/18-956/93436/20190327160337558_190311%20for%20E-Filing.pdf.

[2] Brief of Petitioner Google LLC, https://www.supremecourt.gov/DocketPDF/18/18-956/127663/20200106172508533_18-956%20ts.pdf.

[3] Brief of Amici Curiae Nine Professors and Scholars of Intellectual Property Law In Support of Respondent, Google v. Oracle, https://www.supremecourt.gov/DocketPDF/18/18-956/133538/20200219155838307_18-956%20bsac%20Nine%20Professors%20and%20Scholars%20on%20Intellectual%20Property%20Law.pdf.

[4] Id.

[5] United Sates Court of Appeals, Google v. Oracle (2017), http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1118.Opinion.3-26-2018.1.PDF.

[6] Federal Rules of Civil Procedure Rule 50 https://www.federalrulesofcivilprocedure.org/frcp/title-vi-trials/rule-50-judgment-as-a-matter-of-law-in-a-jury-trial-related-motion-for-a-new-trial-conditional-ruling/.

[7] U.S. Bank National Ass’n v. Village of Lakeridge LLC , 138 S Ct 960, 967-68 (2018).

[8] See Harper & Row Publishers Inc v Nation Enters , 471 U.S. 539, 560 (1985) ([w]here the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court ‘need not remand for further factfinding but may conclude as a matter of law that the challenged use does not qualify as a fair use of the copyrighted work.).

Categories
Copyright

Congratulations to Shira Perlmutter: 14th United States Register of Copyrights

the word "copyright" typed on a typewriterOn September 21, 2020, Librarian of Congress Dr. Carla Hayden announced that she has appointed Shira Perlmutter Register of Copyrights and Director of the United States Copyright Office.

Ms. Perlmutter has a deep knowledge of copyright law and policy, as well as an appreciation for the nuance with which domestic and international copyright issues must be administered to ensure a flourishing of creativity and dissemination of knowledge to benefit the public. Ms. Perlmutter’s experience as a policy maker in the various government roles she has occupied—most recently as chief policy officer and director of international affairs at the United States Patent and Trademark Office (USPTO), but also in earlier years as Associate Register for Policy and International Affairs at the United States Copyright Office—means she is already poised to consider and take on board the many varying inputs of stakeholders, user communities, and international partners and to advise Congress and other leaders on how to best manage priorities for the public good.

Significantly, Ms. Perlmutter is also a scholar. She taught copyright, trademark, and international intellectual policy at The Catholic University of America’s Columbus School of Law, has authored numerous academic articles, and co-authored a leading international IP law textbook. Her business experience, at law firms and in the private sector, will bring a practical perspective to compliment her public service and her scholarship.

As we celebrate the 150th anniversary of the Copyright Office, the Center for the Protection of Intellectual Property congratulates incoming Register Perlmutter on her appointment as Register of Copyrights and Director of the United States Copyright Office; thanks Librarian of Congress Dr. Hayden for conducting a thoughtful and thorough search; and thanks Acting Register Maria Strong for her dedicated service not only meeting the needs of users of the office, but also bringing to fruition numerous major initiatives, particularly during these challenging times.

Categories
Copyright

Professor Ross E. Davies on the “Ebb and Flow in Safe Harbors”

shelves full of booksCPIP has published a new policy brief by Professor Ross E. Davies entitled Ebb and Flow in Safe Harbors: Some Exemplary Experiences Under One Old Statute and One New. Prof. Davies teaches administrative law, civil procedure, comparative criminal law, contracts, employment discrimination, legal history, legal profession, and torts at George Mason University Antonin Scalia Law School in Arlington, Virginia, and the policy brief is the product of our two Safe Harbors and Private Ordering in the Creative Industries research symposia that were held in 2019.

In the policy brief, Prof. Davies compares and contrasts two seemingly unrelated statutory provisions that are often referred to as “safe harbors”—despite that term not appearing in either statute: the National Labor Relations Act (NLRA) as codified in Title 29, and the Online Copyright Infringement Liability Limitation Act (OCILLA)—otherwise known as Title II of the Digital Millennium Copyright Act (DMCA)—as codified in Title 17.

The introduction and conclusion are copied below:

Introduction

What do a grand, rather old statute rooted in the gritty world of coal and steel and smokestacks (the National Labor Relations Act, also known as the Wagner Act) and a splendid, rather new statute rooted in the sparkly world of silicon and plastic and computers (the Online Copyright Infringement Liability Limitation Act, Title II of the Digital Millennium Copyright Act) have in common? A lot, of course, including this: neither contains “safe harbors” identified as such by Congress. And both contain “safe harbors” identified as such by other government actors. This article will explore some aspects of judges’ and bureaucrats’ discovery and development of safe harbors, comparing their long-term experience with the National Labor Relations Act (NLRA) and their shorter-term experience with the Online Copyright Infringement Liability Limitation Act (OCILLA).

***

Safe Harbors on the Horizon

Perhaps the best that can be said about safe harbors—and this is good, at least some of the time—is that they are rhetorically irrebuttable exemptions from broad prohibitions, and practically rebuttable presumptions subject to interpretive exceptions and glosses applied by courts and agencies in light of the policies underlying both the exemptions and the prohibitions. And that is what makes safe harbors distinctive: the duality of those policies and the laws implementing them. The samples from the NLRA suggest the endlessness of the search for balance between prohibitions and exemptions of this process (like much of statutory interpretation), and the samples from OCILLA suggest legislatures are not well-equipped to specify that balance clearly for judges upfront. And that may explain where we started, with the scarcity of “safe harbors” in statutes. Of greater practical importance may be the apparent long-term tendency of courts to treat safe harbors as havens for sailors (of whatever sorts) traveling in good faith, not for pirates (of any sort), no matter what disguises they don.

To read the policy brief, please click here.

Categories
Communications Copyright

New Da Vinci Article on the Harmonization of Copyright and Communications Law

a hand holding a phone with holograms hovering above the screenThe Richmond Journal of Law and Technology (JOLT) has just published a new article by Professor Stuart N. Brotman, the inaugural Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville. The article, Intersecting Points in Parallel Lines: Toward Better Harmonization of Copyright Law and Communications Law Through Statutory and Institutional Reform, was supported by a Leonardo da Vinci Fellowship Research Grant from CPIP and the research assistance of recent Scalia Law graduate Samantha J. Levin. The article traverses the history and development of copyright and communications law, which have historically followed separate paths, and offers potential ways that they can be harmonized to match the current realities of the media marketplace.

A section of the article is copied below:

Approaches to Better Harmonization between Copyright Law and Communications Law

This Article highlights above the current reality, where copyright law and communications law remain in separate legislative and regulatory domains, yet with overlapping interests as media has increasingly combined content in a phenomenon known as convergence. Looking ahead, there are several approaches to consider that may be beneficial in creating better harmonization between copyright and communications law.

Statutory reform would be the most durable potential route, but also the most difficult to achieve at a political level. Neither the broadcasting nor cable industries have sought to upset the status quo by seeking new legislation, and without their joint support, it is highly unlikely that Congress would be motivated to act on its own. In theory, if Section 111 was deleted from the Copyright Act of 1976, broadcasters and cable operators would need to negotiate directly with each other for retransmitted broadcast programming content. Rates would be set in the marketplace rather than by the current government agency now in charge of statutory royalty rates for cable, the Copyright Royalty Board (CRB), which was created under the Copyright Royalty and Distribution Act of 2004. In turn, the CRB could be abolished outright.

In communications law, a modification to the Communications Act also would need to be made in order to create legislative symmetry. This would involve eliminating the must-carry option in the 1992 Cable Act, except for commercial independent and public television stations that could be guaranteed must-carry status under a grandfather clause. This would mean that the vast majority of the most-viewed stations nationwide would need to negotiate retransmission consent rights in the marketplace, as they already do. In order to phase this in, Congress may wish to enact a sunset provision in the existing Copyright Act that would bring this about on a certain date, while also giving industry players an opportunity to plan accordingly for a post-compulsory license environment.

Although some might argue that leaving both sets of negotiations to the marketplace might result in prohibitively high transaction costs for broadcasters and cable operators, there may be countervailing economies created since both parties could conduct one set of negotiations that covered both retransmission content and signal carriage rights. There also would be no regulatory compliance costs since the CRB would be abolished.

This possible solution is more elegant than realistic, since legislation typically occurs when the affected industries push for Congress to act. Here, the problem is apparent, but the likelihood of logical legislative reform is very low because comfort with the status quo has become the norm.

Consequently, it is useful to consider several incremental approaches that do not require any legislative changes. First, the Copyright Office of the Library of Congress and the FCC can and should begin to work more closely together given the converged and overlapping interests highlighted above. Such coordination is especially important as rapid technology shifts, such as the emergence of major Over-the-Top (OTT) services (e.g., Netflix, Hulu, Amazon Prime), challenge the established business models based on broadcasting and cable television.

Timely data and analysis regarding real-world activities in the brave new world of digital convergence would serve both agencies well. The recently-formed FCC Office of Economics and Analytics can serve as a resource for the Copyright Office as well as the FCC, especially since the Copyright Office does not have a comparable internal unit that it can draw upon for policy initiatives. Enhanced funding might be necessary to accomplish this expanded role.

Both agencies already have the capability to develop Notices of Inquiry (NOIs) to seek information and perspectives from affected industries and the public at large. With greater coordination, they could share the compiled records of separate NOIs, or even develop joint NOIs for topics of mutual interest where a broader base of responses and perspectives could be solicited in a single proceeding.

There can also be a formal designation of the FCC Chairman as the principal liaison to the Copyright Office. This would provide for an institutional structure that could promote cooperative activities at the highest levels of both agencies.

Congress can take advantage of such cooperation through minor legislative amendments to both the Copyright Act and the Communications Act that are not likely to raise any political objections. Congress could require the Copyright Office and the FCC to issue a joint report to the respective committees in the House and Senate on a periodic basis (e.g., every two or four years) that discusses the state of copyright protection on digital media platforms, including broadcasting, cable, satellites and broadband. These reports should reflect affected industry input, and can be useful materials for Congress to consider in formulating any legislative initiatives that would require support by these industry players.

To read the article, please click here.

Categories
Copyright

Copyright Notebook: The Importance of Artists’ Agency

the word "copyright" typed on a typewriterI am looking forward to hosting a keynote conversation with Grammy-winning composer, performer, songwriter, best-selling author, and essayist Rosanne Cash this week at CPIP’s The Evolving Music Ecosystem conference. One part of Rosanne Cash’s “music ecosystem” is the Artist Rights Alliance (ARA), where she serves as a member of the board. Preparing for that conversation, I am thinking a lot about the importance of artists’ agency. Over the summer, the ARA “rebooted,” relaunching itself with a powerhouse music council of artists and experts. The ARA is “an alliance of working musicians, performers, and songwriters fighting for a healthy creative economy and fair treatment for all creators in the digital world. [They] work to defend and protect artists, guided by [their] Artists’ Bill of Rights, which outlines fundamental principles for today’s music economy.”

Those principles:

The Right to Control Our Work
The Right to Economic and Artistic Freedom
The Right to Attribution and Acknowledgment
The Right to a Music Community
The Right to Competitive Platforms
The Right to Information and Platform Transparency
The Right to Political Participation

 

All share one core attribute—an artist’s agency—over their work, their livelihood, their community, themselves. That the ARA found it necessary to relaunch this summer is not surprising. The triple threat of a pandemic decimating artists’ livelihoods, the surging power of technology platforms, and the challenges of ensuring one’s work is not distorted by others or used to send disagreeable political messages has heightened awareness among artists about the issues for which ARA stands.

Several notable lawsuits have also brought these issues to the forefront this summer that may shape the nature of artists’ agency over their work for years to come. Here are some thoughts about why they are significant and some issues you may not have noticed.

Hachette Book Group et al. v. Internet Archive

On June 1, 2020, four of the world’s preeminent publishing houses sued Internet Archive (IA) for willful mass copyright infringement. The IA styles itself an online library, open to anyone to borrow books, music, and other works. It scans millions of copyrighted as well as public domain works and makes them available to “borrowers” for free. It had previously operated under an already controversial policy of “controlled digital lending” (more on that below), but in response to the COVID-19 pandemic, dropped even these minimal restrictions on its distribution of works. As the Authors Guild put it in an open letter to the IA:

[B]y declaring a spurious “copyright emergency” and making a massive trove of copyrighted books available for free without any restrictions, Internet Archive has demonstrated a shocking disrespect for the rule of law—the cornerstone of our civil, democratic society—at a time when we most need it to prevail. You cloak your illegal scanning and distribution of books behind the pretense of magnanimously giving people access to them. But giving away what is not yours is simply stealing, and there is nothing magnanimous about that. Authors and publishers—the rights owners who legally can give their books away—are already working to provide electronic access to books to libraries and the people who need them. We do not need Internet Archive to give our works away for us.

 

In their complaint, the publishers argue that IA’s assertion that it should not be liable for infringement is based on “an invented theory called ‘Controlled Digital Lending’ (‘CDL’)—the rules of which have been concocted from whole cloth and continue to get worse.” As the complaint sets forth:

[A]t first, under this theory IA claimed to limit the number of scanned copies of a title available for free download at any one time to the number of print books of that title in its collection—though no provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies. Then, in the face of the COVID-19 pandemic, IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing with great fanfare that it would remove these already deficient limitations that were purportedly in place. Today, IA offers an enormous universe of scanned books to an unlimited number of individuals simultaneously in its “National Emergency Library.” IA’s blatant, willful infringement is all the more egregious for its timing, which comes at the very moment that many authors, publishers, and independent bookstores, not to mention libraries, are both struggling to survive amidst economic uncertainty, and planning deliberatively for future, changing markets.

 

The publishers’ lawsuit is important because it is the first “live” judicial challenge to the legal theory of “controlled digital lending”—a legal theory which was announced by certain academics and internet advocates in 2018. They argue that it should be fair use for libraries to scan or obtain scans of physical books they own and lend them electronically, provided certain restrictions are applied, such as limitations that attempt to emulate the limitations of lending in the physical world (e.g., limits on lending periods and on numbers of copies that can be loaned at a given time).

I refer to this as the first “live” judicial challenge because, while it is the first time CDL has been challenged in the courts, the supporters of CDL sought and failed to receive the blessing of the Second Circuit for IA’s original Open Library service when that court was reviewing the decision in Capitol Records v ReDigi. Unsurprisingly, the court declined to do so. In an opinion written by Judge Leval, the Second Circuit rejected ReDigi’s and its amici’s fair use argument because market harm would be likely since the sales of ReDigi’s digital files would compete directly with those of Capitol Records. Because “used” digital files do not deteriorate like used physical media, there would be no reason for customers to buy new licenses from Capitol Records if they could obtain the files from ReDigi at a lower price.

One imagines that the impact of free CDL on e-book sales would only be worse—first, because it is free, rather than merely a reduced price for “used” files, and second, because it would be usurping a valuable market authors and publishers have continued to actively develop and license for several years since the ReDigi decision. This includes licensing to libraries for free lending via services like OverDrive. It is likewise significant that the “Emergency Library” at issue in the publishers’ case against IA is far less restricted than the version of IA’s “Open Library” the amici sought and failed to have blessed by the Second Circuit in ReDigi.

Maria Schneider et. al. v. YouTube

Another case to watch is the class action lawsuit filed by composer and jazz performer Maria Schneider against YouTube and its parent companies Google and Alphabet in July. The lawsuit alleges that “YouTube has facilitated and induced [a] hotbed of copyright infringement [on its website] through its development and implementation of a copyright enforcement system that protects only the most powerful copyright owners such as major studios and record labels.” Because members of the class are denied access to the copyright management tool YouTube offers its corporate partners—Content ID—the lawsuit alleges that rather than preventing repeat infringements of works, the tool “actually insulates the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer policy, thereby encouraging its users’ continuing upload of infringing content.”

This is all part of a deliberate strategy, according to the complaint:

Defendants Alphabet, Google, and YouTube reap billions of dollars annually from the online hosting of videos, including millions of works that infringe on the exclusive copyrights of Plaintiffs and the Class. Defendants permit and facilitate this infringement because it furthers their growth and revenue strategies and because they have determined that Plaintiffs and the Class—unlike YouTube’s preferred Content ID partners—lack the resources and leverage necessary to combat copyright infringement on the scale at which it is perpetuated on YouTube.

 

Maria Schneider argues many of the same things she and other artist advocates have asserted before Congress, the U.S. Copyright Office, and the U.S. Patent and Trademark Office in hearings and roundtable proceedings exploring the provisions of Section 512 of the Digital Millennium Copyright Act (DMCA):

Faced with litigation by major music studios and other significant rights holders, Defendants have crafted distinct and disparate systems of copyright “enforcement” on their platform. For those entities with vast stores of copyright material and thus the leverage to require Defendants to appease their copyright management concerns, YouTube created its Content ID program, which allows qualifying copyright owners automatically to identify and manage their content on YouTube. . . . Smaller rights holders, including [Schneider], are, however, denied access to Content ID and thus are relegated to vastly inferior and time-consuming means of trying to police and manage their copyrights such as scanning the entirety of YouTube postings, searching for keywords, titles, and other potential identifiers.

 

They must then send notices identifying infringements URL by URL, filling out cumbersome webforms, often laden with advertising, struggle with captcha codes, and contend with requests for additional information or challenges from employees reviewing the requests.

While many artists have neither the pocketbook nor the backbone to stand up to an adversary like YouTube in federal court, this lawsuit seems particularly well-timed given that the ongoing focus on Section 512 in multiple government venues over the past decade has developed a solid record articulating the scope and the magnitude of the problem, as well as that the complaints against YouTube and other web platforms by individual artists seem to be almost universally shared.

Regardless of Maria Schneider’s lawsuit, the Senate and the U.S. Copyright Office are not done considering the issue. The Copyright Office released its much-anticipated Section 512 Report earlier this May and engaged in a subsequent exchange of letters with Senators Thom Tillis and Patrick Leahy regarding additional statutory clarifications that the Senate might consider and other approaches that could improve the operation of the DMCA without legislative amendment. Among the issues addressed in that letter is a request from the Senators to the Copyright Office to conduct stakeholder meetings to identify and adopt standard technical measures (STMs) as was anticipated in Section 512(i) of the DMCA. It is notable that Maria Schneider has herself been an active participant in the Copyright Office’s Section 512 proceedings, and in February of 2017, she submitted comments to the Copyright Office urging that Content ID be recognized as a STM under the DMCA and that all creators be granted access to it in order to be able to more efficiently police YouTube’s platform. The Copyright Office did not take up her suggestion.

In answer to the Tillis/Leahy request, on June 29, 2020, the Copyright Office responded in part that it will convene virtual meetings in late summer/early fall “focused on identifying any potential obstacles to the identification of potential STMs, as well as the requirements that must be met in order to adopt and implement an STM,” and to “begin identifying the kinds of technologies that may meet the statutory definition. Once the bounds of potential qualifying technologies have been identified, the Office would then convene further discussion to evaluate whether individual technologies meet the other requirements of section 512(i), including discussions to learn more about the terms upon which the technologies are offered in the marketplace.”

To date, hypothetical discussions (as well as lawsuits and licensing) have focused on digital fingerprinting technologies. Such technologies are designed to identify content by taking a “fingerprint” of a file that is being or has been uploaded to a platform and matching it to a database of sample content submitted by copyright owners. Regardless of the technology identified as an STM, the challenge may come not from choosing the technology, but rather in applying it. What one copyright owner is willing to tolerate in the name of marketing and fan word of mouth, another will not be. What a technology platform may set the technology to overlook, a filmmaker on the eve of a festival premiere will consider a “match.” Hence the importance of artists’ agency. Or as the ARA would have it: the right to competitive platforms and the right to information and platform transparency. Unless artists are informed about the STMs platforms apply and how they apply them, and unless they have the ability to keep their work from platforms that don’t meet their requirements, identifying an STM on its own won’t make much of a difference. Without artists’ agency and the right to control what happens to their creative output, we may just have the digital fingerprint version of the notice-and-takedown “whack-a-mole” game.[1]

Neil Young v. Donald J. Trump for President

Musicians have perpetually battled with political campaigns over the unauthorized use of their music at rallies and other campaign events. Given the particularly heated nature of this year’s presidential contest, it is perhaps not surprising that Neil Young has sued the Trump campaign for copyright infringement for publicly performing his musical works Rockin’ in the Free World and Devil’s Sidewalk at numerous campaign rallies and events, including one in Tulsa, Oklahoma. The complaint alleges: “The Campaign has willfully ignored Plaintiff’s telling it not to play the Songs and willfully proceeded to play the Songs despite its lack of a license and despite its knowledge that a license is required to do so.”

Neil Young is not the only musician battling the Trump campaign. Leonard Cohen’s estate is considering whether to file suit for the campaign’s use of Halleluiah during the last night of the Republican National Convention, and the Rolling Stones are working with ASCAP and BMI to persuade the Trump campaign to stop playing You Can’t Always Get What You Want at rallies. Campaigns typically assert that they are permitted to play any songs included in the Performing Rights Organizations’ political entities licenses, from which artists may seek to exclude their works if they object to use at political rallies. The allegations by Neil Young, the Cohen estate, and the Stones seem to be that the particular uses by the Trump campaign have gone beyond what a venue license for a political gathering envisions and that the campaign is instead using the songs to either distort their meaning or suggest an endorsement by the artist.

As the members of the Artist Rights Alliance wrote to all of the Republican and Democratic National Campaign Committees this July: “Like all other citizens, artists have the fundamental right to control their work and make free choices regarding their political expression and participation. Using their work for political purposes without their consent fundamentally breaches those rights—an invasion of the most hallowed, even sacred personal interests.”

These lawsuits are interesting because, until now, due to a combination of the veneer of protection offered by the venue licenses, and the time constraints imposed by campaign season, the only viable mechanism for discouraging unwanted uses of an artist’s work by a campaign has been public shaming via social media or statements by the artist publicly disowning and rejecting the candidate. Consequently, neither the moral rights or right of publicity-like qualities of the complaints nor the availability of damages for the infringing use have been explored. Since the Trump campaign is unlikely to settle a lawsuit, this case may define the boundaries of political entities licensed uses or add a new tool to musicians’ arsenals in ensuring they are not unwillingly conscripted into the service of a campaign they do not support.

RIP Matt Herron[2]

A civil rights era photographer I admired and came to know when I was CEO of the Copyright Alliance—Matt Herron—recently passed. Matt was inspiring on many levels. He described himself as an “activist with a camera,” and he covered some of the most meaningful moments in the effort to gain voting rights for Black people in the 1960s—including the Selma to Montgomery march.

“I photograph things I believe in. I try to photograph the things that are important in my life,” said Herron during a panel I moderated in 2011. He felt so strongly about what he saw happening in the 1960s south that he picked up his family and moved from Philadelphia to Mississippi because he thought they could be more relevant there. In doing so, through his photographs, he gave countless generations a front row seat to history. He described the five days he spent documenting the march from Selma to Montgomery:

As photographers, we are mostly voyeurs. We stand a little bit aside from an event. Part of our mind is clicking through F Stops and the rest of it is trying to figure out where images and angles are. But sometimes something happens that sucks us in and we lose that voyeuristic element and become part of the event itself. Certainly for me, the Selma March—five  days of walking in rain and sunshine and all kinds of conditions—was one of those moments. I have no memory of where I slept, what I ate, how I handled any of my basic physical problems. All I remember is the camera, the walking, and the faces.

 

Matt Herron lived by the copyright of his photographs and used them to further education about the social causes he covered. Besides the Selma march, he shot whaling protests by Greenpeace and the AIDS quilt. He explained that copyright laws help him keep collections of his images together and allow him to present them for the benefit of the causes covered:

I’ve put some effort into making not just single photographs but collections. I have historical collections and copyright allows me to decide how these images will be presented and how these historical moments can be disseminated. If I didn’t own the copyright some of these pictures of Martin Luther King might be used to advertise shoes. As it is, I can disseminate these images in ways that add to our national heritage, in educational ways for school children and to preserve a piece of history. Copyright allows me to retain this control not so I can keep them to myself but present them to the world in a way that’s coherent.

 

Matt Herron’s lifetime of work demonstrates in a way that is perhaps clearer this summer than any in recent memory why ensuring that artists are guaranteed agency over their creative output—whether they be photographers chronicling our history, musicians expressing our yearning, or authors giving words to our conscience—is crucial to democracy.

[1] Although it is approximately a decade old, this article, The (Im)possibility of “Standard Technical Measures” for UGC Websites, written by then student, now partner at Wilson Sonsini, Lauren Gallo, is the most thorough, balanced, and articulate examination of the issues the USCO is undertaking to date. Gallo notes that already in 2011 when her note was published, rights owners and UGC service providers were deploying fingerprinting technology to protect copyrighted works on the internet and operate repeat infringer policies. She writes: “In light of the widespread use of this successful technology and Congress’ mandate that ‘standard technical measures’ be developed ‘expeditiously,’ individual or infrequent holdouts should not obstruct the consensus necessary to define the term. . . . [F]ingerprinting technology should qualify as ‘standard technical measures’ under section 512(i), so that right holders and service providers may be on notice of their statutory obligations and may continue to develop ‘best practice’ applications for that technology.”

Ms. Gallo’s current practice focuses on novel legal questions online, involving among other issues, the Digital Millennium Copyright Act, and she has represented Google and YouTube in cases challenging their decisions regarding whether or not to remove or limit access to online content.

[2] Portions of this section appeared as a blog post in June of 2011 on the Copyright Alliance website, when I was CEO of that organization.

Categories
Copyright

CPIP’s Sandra Aistars Joins Artomatic Panel on Copyright Protection for Visual Artists

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

the word "copyright" written on a typewriterBy Liz Velander

As part of its ongoing series about the copyright licensing process, Artomatic hosted a virtual panel for visual artists last week to discuss how to protect their creative works. The panel focused on explaining key concepts of copyright law pertinent to visual artists and sharing resources that they can use to learn more about the basics of copyright protection. It also touched on common pitfalls among visual artists when it comes to protecting their creative works, including those that befall joint authors, and common misconceptions about fair use.

The panelists included CPIP Director of Copyright Research and Policy Sandra Aistars and Jaylen Johnson, Attorney Advisor at the U.S. Copyright Office, and it was moderated by Kim Tignor, Executive Director at the Institute for Intellectual Property & Social Justice.

Prof. Aistars explained that there are three important things visual artists should know about copyright law. First, the requirements for copyright protection. Copyright law protects original works of authorship that are fixed in a tangible medium. An “original” work means that it was created independently and not copied from somebody else. Prof. Aistars noted that “this doesn’t mean the work has to be absolutely novel—if you have two artists who independently create something that is substantially similar, without copying from each other, both of those works are protected by copyright.”

Prof. Aistars also clarified the distinction between ideas and expression, noting that copyright law only protects the expression of ideas, not the ideas themselves. Visual artists cannot “copyright the idea of painting a field of sunflowers,” but they can protect “the precise rendering of that work, the nuances of brushstroke, the layering of the paint on the canvas” because those are all elements of expression. A work must also be fixed in a tangible medium of expression, Prof. Aistars continued, which could include paper, canvas, or a digital medium. If a work meets all these elements, it is protected by copyright and the visual artist obtains a variety of exclusive rights that allow her to make a living from her creative pursuits.

The second important thing to know about copyright law, according to Prof. Aistars, is that copyright protection is automatic. A visual artist does not need to register a work with the Copyright Office to receive protection. Instead, copyright protection exists from the moment the artist sets a work down in a tangible medium of expression. However, Prof. Aistars noted that it is a good practice for visual artists to register their works with the Copyright Office. Registration gives copyright owners additional benefits and makes it easier for people to find the copyright owner to license her works.

Finally, Prof. Aistars explained that it is important to understand that a visual artist retains the copyright in a work when she sells a copy of it, even if it is the only copy she has ever created. Selling a copy does not transfer the underlying rights the artist enjoys as a copyright owner. Prof. Aistars pointed out that “you’re not transferring the rights to make copies of the work, print them up on t-shirts and postcards, and sell them on the internet to whoever buys the copy of your work—unless you enter into a separate agreement with that person.”

Ms. Johnson noted that the Copyright Office is an excellent resource for visual artists who want to learn more about copyright protection. As the primary agency in charge of administering copyright law, the Office advises Congress, facilitates rulemaking, assists in litigation efforts, serves on international delegations, and administers the nation’s registration and recordation system. In celebration of its 150th anniversary, the Office recently launched a new initiative called Engage Your Creativity that pulls together a variety of resources for creators. Ms. Johnson stated that the initiative is a great way to become familiar with the many resources available to the public through the Office’s website.

The panelists also identified common pitfalls visual artists encounter during the creative process. Many occur because artists are not sure what qualifies as fair use of a copyrighted work. Prof. Aistars explained that “fair use exists so artists can build and comment on existing works in their own work, and in so doing add to our cultural dialogue and engage with one another in artistic conversations.” She advised artists to treat fair use as the Golden Rule: “Think about the way you would feel if someone uses your work the way you’re proposing to use someone else’s work, and then be very honest.”

The courts have four factors that they evaluate together to determine whether a use is fair or not. Codified in Section 107 of the Copyright Act, the four factors are: (1) the purpose and character of the use, including whether such use is commercial or educational; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. However, since these factors are neither dispositive nor exhaustive, courts typically explore fair use claims in an open-ended, case-by-case manner. This is an area where artists run into trouble, Prof. Aistars explained, because “there are no bright lines. There’s not a set rule that you can use this much, but no more. Artists are trying to make the best decisions they can, and sometimes that isn’t the decision the court would’ve made.”

The panelists noted that another common pitfall arises with jointly created works. Under the Copyright Act, the authors of a joint work are co-owners of the copyright in a work. Each author can do whatever she wants with the work, as long as she accounts to the other. This is a problem when a collaborative relationship goes south, or if one author wants to use the work in a way that the other author disagrees with. Prof. Aistars advised visual artists to put an agreement in writing prior to starting a collaborative relationship.

Copyright law may seem like daunting subject to visual artists, but it can be easily understood with the right information. In closing, Ms. Johnson emphasized the importance of making resources accessible and engaging in public outreach because “copyright is for everybody.”

Categories
Copyright

Senate IP Subcommittee Hearing Addresses Intersection of DMCA and Fair Use

The following post comes from Yumi Oda, an LLM Candidate at Scalia Law and a Research Assistant at CPIP.

U.S. Capitol buildingBy Yumi Oda

As part of its year-long review of the Digital Millennium Copyright Act (DMCA), the Senate Subcommittee on Intellectual Property tackled yet another contentious issue in our copyright system—fair use. A virtual online hearing, held on July 28 and entitled How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?, focused on the role of fair use for digital platforms. Calling fair use “a bit of a touchy subject,” Chairman Thom Tillis (R-NC) specifically requested the witnesses’ input on how the original DMCA envisioned fair use and how the reform bill should address it. Ranking Member Chris Coons (D-DE) likewise emphasized the importance of striking a balance to “safeguard free speech and fair use, while also combating digital piracy and ensuring creators are fairly compensated.”

The panelists included: Sherwin Siy, Lead Public Policy Manager of Wikimedia Foundation; Mickey H. Osterreicher, General Counsel of National Press Photographers Association; Jane C. Ginsburg, Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia University School of Law; Christopher Mohr, Vice President for Intellectual Property and General Counsel of Software and Information Industry Association (SIIA); Rick Beato, Songwriter, Producer, Engineer, and Educator; Yolanda Adams, GRAMMY Award-winning artist and Recording Academy Trustee; Joseph C. Gratz, Partner of Durie Tangri LLP; Matthew Sanderson, Co-lead, Political Law Group of Caplin & Drysdale; and Jacqueline Charlesworth, Partner of Alter, Kendrick & Baron LLP. These panelists represented industry and scholarly experts, as well as creators, users, and intermediaries of copyrighted works.

As a limitation to the exclusive rights in creative works, fair use is intended to simultaneously promote free speech and foster authorship and creativity. Taking a hint from case law, Congress codified Section 107 of the Copyright Act, enumerating four factors to be considered in a fair use analysis, namely: (1) the purpose and character of the use, including whether such use is commercial or educational; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. However, since these factors are neither dispositive nor exhaustive, courts typically explore fair use claims in an open-ended, case-by-case manner.

On the first panel, Mr. Siy, representing the host of Wikipedia and Wikimedia Commons, testified that his Foundation heavily relies on fair use and the DMCA’s safe harbor provisions. Mr. Siy asserted that his Foundation receives approximately 30 DMCA takedown notices annually as risk-averse volunteers remove seemingly infringing content according to its volunteer-created standards, which are stricter than what the law requires. Of those notices, Mr. Siy explained, two-thirds are usually found to be noninfringing uses, such as fair use, thus demonstrating the ease of attacking harmless fair uses under the DMCA.

On the other hand, Mr. Osterreicher, representing visual journalists, pleaded with the Subcommittee to change the current lop-sided, whack-a-mole situation, which places an “insurmountable” burden on photographers, but “little to no responsibility” on online service providers (OSPs) for online infringement. As he pointed out, “the more amorphous the fair use interpretation the better” for OSPs to draw more visitors and advertisers. He argued that copyright infringement, sometimes disguised as fair use, reduces economic incentives, discourages participation in visual journalism, and “devalues photography as both a news medium and art form.”

Next, Prof. Ginsburg explained how Sections 512 and 1201 accommodate copyright limitations and exceptions. She noted that Section 512 has not worked as intended, largely due to the vastly higher number of postings than Congress originally anticipated. Conversely, the seemingly low number of counternotices, she continued, could suggest that “many fair uses are being suppressed,” “the vast majority of postings are in fact infringing,” or “fear or ignorance [are causing] some fair users to decline to send a counternotification.” As a potential solution to the timely counternotification procedure, Prof. Ginsburg proposed an alternative dispute resolution (ADR) mechanism. Moreover, she explained that “by design, [Section] 1201 does not provide a general fair use defense,” and that the triennial rulemakings to identify exempted classes of works have been largely effective.

Mr. Mohr, representing the software industry, provided the last testimony on this panel. He stated that Sections 512 and 1201 have been successful mainly because Congress left fair use out of both. Rather, he considered fair use as “a built-in safety valve” to preclude overly broad assertions of rights.

Senators Tillis and Coons then raised a series of specific questions. In response to a question regarding the extent to which OSPs should consider fair use, Prof. Ginsburg testified that OSPs have no duty to consider fair use and that they can remain mere conduits as long as they comply with the DMCA safe harbor provisions. Moreover, in response to a question regarding the misunderstanding surrounding fair use and newsworthiness, Mr. Osterreicher answered that there is a common misconception that newsworthy materials can be used more freely, which in turn deprives visual journalists of licensing opportunities due to the time-sensitive nature of such materials. Furthermore, in response to a question regarding the recent evolution of fair use, Prof. Ginsburg testified that broader fair use claims wrongly recognized in lower courts have been corrected by the higher courts, thereby demonstrating that courts are better equipped to analyze the inherently malleable fair use doctrine.

Lastly, each panelist was asked to specify which area of the DMCA Congress should look at in drafting a reform bill. Mr. Siy simply called for a holistic review. Mr. Osterreicher recommended clarifying the red flag knowledge standard for OSPs, and he pledged to continue advocating for the ADR system and the currently blocked Copyright Alternative in Small-Claims Enforcement (CASE) Act. Neither Prof. Ginsburg nor Mr. Mohr advocated for a legislative change, but Prof. Ginsburg did recommend that Congress closely monitor the development of the European Union’s approach to see if requiring OSPs to filter and block infringing content could reach a better balance.

On the second panel, witnesses testified how fair use has been applied in practice in their specific areas, many touching on the hot subject of political misappropriation. First to testify was Mr. Beato, a musician and popular YouTube music instructor who uses excerpts from famous songs in his videos. He explained that he never sought fair use claims in response to DMCA notices because it would be a waste of time and money, although he believed a good case could be made considering the new educational role YouTube has been playing. Although he himself successfully stood up against DMCA notices by a major label thanks to his large viewership, he warned that “frivolous” DMCA notices can be used to harass small content creators. Ultimately, he proposed a “Fair Use Registry,” similar to Twitter’s blue check mark, to certify and notate a good actor and to whitelist his or her use.

Another musician’s input came from Ms. Adams, a renowned gospel singer and songwriter who is also known as the “First Lady of Modern Gospel.” She maintained that “if someone’s claim of fair use reduces the artists’ ability to earn a living, it should be treated as infringement, plain and simple.” In addition to this monetization aspect of fair use, Ms. Adams also focused on its moral aspect, stating that “fair use can be very unfair to the artist if it takes our control away.” Reiterating the importance of the long-standing radio performance right issue, Ms. Adams concluded that seeking “permission” is the key when it comes to working with musicians, including use in political campaigns.

In contrast, Mr. Gratz, representing internet intermediaries, defended free speech and fair use, stating “nobody likes to be criticized or have their music used in ways they can’t control, but . . . even more so where the copyright holder does not like the use, fair use is needed to make sure that free expression can thrive even in the presence of copyrighted material.” Additionally, he made the following three points: (1) Section 512 has provided no practical remedy to the serious DMCA abuse; (2) automated filtering including any “staydown” systems should not be mandated; and (3) the current “reasonableness” standard for terminating repeat infringers is the right standard.

Similarly, Mr. Sanderson, who consults election and advocacy organizations, explained that political campaigns receive increasingly more takedown notices from artists who do not wish to be associated with the campaigns’ messages, even when the uses are permitted under performance rights organizations’ blanket licenses.

Finally, Ms. Charlesworth, an attorney representing songwriters and artists, reminded the Subcommittee that “creators, too, [as well as politicians,] are intended beneficiaries of the First Amendment.” She noted that creators’ messages can be appropriated and altered in political campaigns in ways that alienate fans and cause economic damages. Particularly, she argued that a fair use claim in a political campaign should also be analyzed under the regular four-factor test, with the emphasis on the first factor’s focus on whether the use is “transformative.” On this point, she explained that simply attaching a song to a political campaign video would not amount to a “transformative” use. Citing her clients’ experience, Ms. Charlesworth argued that “the current system imposes unjust burdens on creators and small copyright owners . . . without adequate tools or resources at hand when a political ad containing their song suddenly appears” online.

The second panel did not receive as many questions as the first one because the hearing was cut short by a live vote, but Senator Tillis concluded the hearing by thanking each panelist and acknowledging that some issues probably can be addressed without any legislative fix, while others may require congressional action.