Copyrights

Social Media Influencers Ask What “Intellectual Property” Means

Henry Killen, MJLST Staffer

Today, just about anyone can name their favorite social media influencer. The most popular influencers are athletes, musicians, politicians, entrepreneurs, or models. Ultra-famous influencers, such as Kylie Jenner, can charge over 1 million dollars for a single post with a company’s product. So what are the risks of being an influencer? Tik Tok star Charli D’Amelio has been on both sides of intellectual property disputes. A photo of Charli was included in media mogul Sheeraz Hasan’s video promoting his ability to “make anyone famous.” The video featured many other celebrities such as Logan Paul and Zendaya. Charli’s legal team sent a cease-and-desist letter to Sheeraz demanding that her portion of the promotional video is scrubbed. Her lawyers assert that her presence in the promo “is not approved and will not be approved.” Charli has also been on the other side of celebrity intellectual property issues. The star published her first book In December and has come under fire from photographer Jake Doolittle for allegedly using photos he took without his permission. Though no lawsuit has been filed, Jake posted a series of Instagram posts blaming Charli’s team for not compensating him for his work.

Charli’s controversies highlight a bigger question society is facing, is content shared on social media platforms considered intellectual property? A good place to begin is figuring out what exactly intellectual property is. Intellectual property “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.” Social media platforms make it possible to access endless displays of content – from images to ideas – creating a cultural norm of sharing many aspects of life. Legal teams at the major social media platforms already have policies in place that make it against the rules to take images from a social media feed and use them as one’s own. For example, Bloggers may not be aware what they write may already by trademarked or copyrighted or that the images they get off the internet for their posts may not be freely reposted. Influencers get reposted on sites like Instagram all the time, and not just by loyal fans. These reposts may seem harmless to many influencers, but it is actually against Instagram’s policy to repost a photo without the creator’s consent. This may seem like not a big deal because what influencer doesn’t want more attention? However, sometimes influencers’ work gets taken and then becomes a sensation. A group of BIPOC TikTok users are fighting to copyright a dance they created that eventually became one of biggest dances in TikTok history. A key fact in their case is that the dance only became wildly popular after the most famous TiKTok users began doing it.

There are few examples of social media copyright issues being litigated, but in August 2021, a Manhattan Federal judge ruled that the practice of embedding social media posts on third-party websites, without permission from the content owner, could violate the owner’s copyright. In reaching this decision, the judge rejected the “server test” from the 9th Circuit, which holds that embedding content from a third party’s social media account only violates the contents owner’s copyright if a copy is stored on the defendant’s serves. .  General copyright laws from Congress lay out four considerations when deciding if a work should be granted copyright protection: originality, fixation, idea versus expression, and functionality. These considerations notably leave a gray area in determining if dances or expressions on social media sites can be copyrighted. Congress should enact a more comprehensive law to better address intellectual property as it relates to social media.


The Mysterious Disappearance of Deference: What Is the Supreme Court’s Current Relationship to Federal Agencies?

Carly Michaud, MJLST Staffer

The Supreme Court has had no shortage of administrative law cases in the (possibly) final sessions of one of the Court’s administrative law scholars, Justice Stephen Breyer. Yet, Breyer has found himself and his ideological compatriots in the opposition on the topic in which he situates his expertise. In the recent case regarding OSHA’s ability to require COVID-19 vaccines, Breyer’s dissent repeated discusses the proper deference an agency’s determination should be given by the Supreme Court.

Notably absent from the case is any mention of the previous key to the relationship between the courts and federal agencies: Chevron deference. In fact, Chevron U.S.A., Inc. v. National Resources Defense Council, was, (as of a 2014 analysis in the Yale Journal on Regulation) the “Most Cited Supreme Court Administrative Law decision”. While previously considered a niche area, administrative law is now so ubiquitous in practice that as of July 2021, 55 law schools require students take a course in administrative law or one of its mainstays: legislation or statutory interpretation.

In spite of this, Chevron appears nowhere in the discussion of OSHA’s vaccine mandate, nor in the court’s earlier revocation of the CDC’s eviction moratorium. This absence suggests that perhaps this Court has become a body of health experts, relying on their own understanding of COVID-19 to determine whether these agency-created regulations are effective in their mission. Both cases center on whether an agency action to prevent the spread of COVID-19 is within the purview of their empowering statute, and, despite the broad statutory authorities of these agencies to protect the health of Americans, both actions were deemed beyond that authority.

But back to Chevron, has it been abandoned as a standard? Not yet, although there was some discussion of this proposition during the oral argument of American Hospital Association v. Becerra last November. The Court has not released an opinion yet on this case, however the Court of Appeals had previously upheld HHS’s ability to set reembursement rates, per its statutory authority.

In a final thrust of irony, the death knell for Chevron deference may come from a case challenging the very statute and the very agency whose decision-making was at issue in Chevron: the EPA and the Clean Air Act. This is particularly ironic as the EPA administrator whose decision-making was being challenged in Chevron was Anne Gorsuch, the mother of Supreme Court justice and noted antagonist of agency authority: Neil Gorsuch. Yes, in a tale mirroring Hamlet, Neil Gorsuch seems determined to destroy the administrative state that had entangled his mother in various administrative scandals. The latest edition of this showdown between the Gorsuchs and EPA is scheduled for Monday February 28, which will see the Supreme Court hearing arguments in West Virginia v. EPA and its consolidated cases.

This behavior by the Court belies a grave concern both about the continued disempowerment of federal agencies—which have been empowered directly by Congress—at the hands of the unelected judiciary. Further, the most cynical of us may see this as a direct assault on the authority of agencies that some justices may politically disagree with, further disregarding the knowledge of learned experts to push their own political agendas.


NFTs and the Tweet Worth $2.9 Million: Beliefs Versus the Legal Reality

Emily Newman, MJLST Staffer

A clip of Lebron James dunking a basketball, a picture of Lindsay Lohan’s face, and an X-ray of William Shatner’s teeth—what do all these seemingly random things have in common? They’ve all been sold as NFTs for thousands to hundreds of thousands of dollars. It seems like almost everyone, from celebrities to your “average Joe” is taking part in this newest trend, but do all parties really know what they’re getting themselves into? Before addressing that point, let’s look at what exactly are these “NFTs.”

What are they?

NFT stands for “non-fungible token.” In contrast to fungible items, this means that it is unique and can’t be traded or replaced for something else. As explained by Mitchell Clark from The Verge, “a bitcoin is fungible — trade one for another bitcoin, and you’ll have exactly the same thing. A one-of-a-kind trading card, however, is non-fungible. If you traded it for a different card, you’d have something completely different.” NFTs can basically be anything digital, and while headlines have been made over Twitter founder Jack Dorsey selling his first tweet as an NFT for $2.9 million, their popularity has really exploded within the world of digital art. Examples include the Nyan Cat meme selling for around $700,000 and the artist Beeple selling a collage of his work at Christie’s for $69 million (for reference, Monet’s “Nymphéas,” was sold for $54 million in 2014).

Anyone can download and view NFTs for free, so what is all the hype about? Buyers get ownership of the NFT. “To put it in terms of physical art collecting: anyone can buy a Monet print. But only one person can own the original.” This originality provides a sense of authenticity to the art, which is important these days “when forged art is proliferating online.” To facilitate this buying, selling, and reselling of digital art, several online marketplaces have emerged such as OpenSea (where one can purchase their very own CryptoKitties), Nifty Gateway, and Rarible.

NFTs, Copyright Law, and Consumer Protection

As mentioned above, NFT purchasers can own an original piece of digital art—but there’s a catch. Owning the NFT itself does not necessarily equate to ownership of the original work and its underlying copyright. In other words, buying an NFT “does not mean that the copyright to that artwork transfers to the buyer,” it is simply a “digital receipt showing that the holder owns a version of the work.” Without the underlying copyright, the purchaser of an NFT does not have the right to reproduce or prepare derivative works, or to distribute the work—that right belongs exclusively to the copyright owner.

Mike Shinoda, one of the musicians behind Linkin Park and an NFT artist himself, states that “there’s nobody who’s serious about NFTs who really humors the idea that what you’re selling is the copyright  . . . .” However, as Pramod Chintalapoodi from the Chip Law Group points out, oftentimes “buyers’ beliefs about what they own do not translate to legal reality.” Chintalapoodi also describes how companies who sell NFTs are not transparent about this either; for instance, Decentraland describes itself as the “first-ever virtual world owned by its users,” but “according to Article 12.1 of Decentraland’s Terms of Use, it is Metaverse Holdings Ltd. that owns all IP rights on the site.” However, its users still spend millions of dollars on the site buying NFTs.

Going forward, NFT purchasers should clarify with the seller about what exactly it is they are purchasing. Preston J. Byrne from CoinDesk encourages consumers to ask “are you buying information, copyrights, bragging rights or none or all of those things? Do you have the documentation to back all of that up?” Additionally, are you even buying an original work or did the seller create an NFT of someone else’s work? Asking these questions early on can help with avoiding “significant financial or legal pain down the road.” While it may not be the norm to receive the underlying copyright when purchasing an NFT today, and while lawmakers may not step in anytime soon (or at all) and force sellers to display their terms explicitly, it is predicted that transferring copyrights to the purchaser will be a “valued feature for NFT platforms” in the future.

 


The Future of Software Industry Is at Stake—An Interview with Professor Thomas F. Cotter of University of Minnesota Law on the Supreme Court Case Google v. Oracle

Mengmeng Du, MJLST Staffer

Background

In the United States, intellectual property rights in computer software receive protection from copyright law. In 1980, Congress amended 17 U.S.C. § 101 to add software to the subject matters of copyright. Section 101 defines “computer program” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”  At the same time, Congress added in § 117 exemption of infringement liability under certain circumstances such as when a user installs and runs the software or makes backup copies of the software.

With these seemingly clear definitions, the debate over the extent of the copyrightability of computer software, however, has not abated in the following decades. In Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), the Third Circuit was asked to determine whether literal copying of computer program object codes constitutes copyright infringement. The Third Circuit ruled that object codes are copyrightable and thus literal copying of such infringes the copyright. In Whelan Ass’n, Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986) and Computer Ass’n Int’l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), the Third and Second Circuit faced the problem of where to draw the line for finding infringement when the copying of software at issue is non-literal. While the Third Circuit would find almost anything below the “purpose of the program” copyrightable, the Second Circuit later developed its more rigorous but more popular “abstraction-filtration-comparison” test, which would yield less copyright protection for non-literal components of computer software.

In 1996, the Supreme Court had a chance to further define the boundary for finding copyright protection in software but missed it. In Lotus Dev. Corp. v. Borland Int’l, Inc., 516 U.S. 233 (1996), the copyrightability of the Lotus menu command hierarchy was questioned. The First Circuit ruled found it an uncopyrightable method of operation by comparing the Lotus menu command hierarchy to the arrangement of buttons on a VCR [see Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807 (1st Cir. 1995)]. Lotus petitioned to the U.S. Supreme Court. Due to an even split court with Justice Stevens recusing, the Supreme Court affirmed the First Circuit’s judgment in a per curiam opinion without discussion on the reasoning.

Google v. Oracle

Finally, there is, again, hope to resolve the extent of computer software copyrightability. The Supreme Court granted certiorari to review the decision in Oracle America, Inc., v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018) on November 15, 2019. In this case, Oracle sued Google for copyright infringement for copying its Java Application Programing Interfaces (APIs) when developing Google’s Android platform. The two parties vehemently debated the copyrightability of the Java APIs and whether the fair use doctrine applies to exempt Google’s use of the declaring code and “structure, sequence, and organization” (SSO) of 37 Java APIs. The Federal Circuit eventually sided with Oracle, finding first in 2014 that the declaring code and SSO of Java APIs are copyrightable (Oracle America, Inc., v. Google LLC, 750 F.3d 1179 (Fed. Cir. 2014)) and then in 2018 that Google’s use is not a fair use (Oracle America, Inc., v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018)). Google successfully petitioned to the U.S. Supreme Court on its second try. The Supreme Court heard oral arguments from Google, Oracle, and Deputy Solicitor General Malcom Stewart on October 7, 2020.

Professor Thomas F. Cotter

Professor Cotter joined the University of Minnesota Law School faculty in 2006 and is Taft Stettinius & Hollister Professor of Law. With a background in economics and law, Professor Cotter’s principal research interests are in the field of intellectual property law, antitrust, and law and economics. He teaches a variety of intellectual property law courses, including patents, copyright, antitrust, international intellectual property, and patent remedies. For further information, please see his law school profile.

This semester, I attended Professor Cotter’s copyright course, where we studied the Federal Circuit’s decisions in Oracle v. Google. Professor Cotter encouraged the class to listen to the Supreme Court hearing for the now Google v. Oracle case on October 7.

To better understand the law and logic behind Google v. Oracle, I invited Professor Cotter to conduct this blog interview.

The Interview

Q: It is notable that after Federal Circuit’s decision in 2014, Google petitioned to the Supreme Court for the first time but was denied. What do you think is the main reason that the Supreme Court decided to grant cert at this time? Does it have something to do with the “ripeness” in this case, i.e., receiving a final judgement?

A: Like you have suggested, the Supreme Court might have wanted to see what would happen on the fair use issue. Other than that, it is hard to know why the Supreme Court denied cert. It seems like there are a lot of important issues, but often the Supreme Court wants to let them continue to percolate through the lower courts before chiming in, so it can be hard to guess sometimes.

Q: The Supreme Court justices raised a lot of questions during the oral argument. Which one is your favorite question, and why?

A: I’m not sure if I have a favorite question as such, but there were some questions I thought were more getting into the heart of the issue than others.

For example, at pages 80-81 of the transcript, Justice Kavanaugh’s questions to the Deputy Solicitor General Malcom Stewart. These were the two of the more perceptive questions in the entire oral argument. Question number one is on the merger doctrine. Justice Kavanaugh said: “First, Google says in its reply brief that the dispositive undisputed fact in this case is that the declarations could not be written in any other way and still properly respond to the calls used by Java programmers. Are they wrong in saying that?” I think that is a very important question. Justice Kavanaugh then followed that up with a second question on page 81: “And the method of operation, Google says that the declarations are a method of operation because they are for the developers to use, while the implementing code instructs the computer. Your response to that?” I think those are the fundamental questions of the case.

Generally speaking, I would say that I think the better questions were those searching for some kind of analogy, whether it is the QWERTY keyboard or whatever else. But analogies only go so far. Computer software is a thing unto itself. Maybe there is no precise analogy. But you do the best to try to draw inferences from something that is more familiar.

Q: Justice Sotomayor and Oracle disagreed as to whether the precedents have held that there is a distinction between declaring and implementing codes for copyright purpose, whether the precedents have held APIs are not copyrightable, and accordingly, what assumptions the software industry has built on for years. How would you read the precedents?

A: Yes. Particularly precedents from the Ninth Circuit on the question of whether APIs are copyrightable.

I tend to agree with Justice Sotomayor that in these two Ninth Circuit cases in particular— Sega v. Accolade [see Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)] and Sony v. Connectix [see Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000)]—those were both cases in which the defendants copied software for the purpose of extracting interface specifications that would enable the defendants to create a compatible program, and Ninth Circuit in both cases held that was a fair use.

The response by Oracle’s counsel was to say among other things that those are fair-use cases and are not going to the fundamental issue of whether the interfaces themselves are copyrightable. But I would say many people have read those cases as premised on the belief that interfaces themselves are not copyrightable and that’s why you can copy the software in its entirety for the purpose of extracting interfaces so as to use them to make compatible programs. So many people would read those cases as standing for the proposition that interfaces are not copyrightable to the extent that they are necessary to enable others to make compatible systems and programs.

So, I’m inclined to think that Justice Sotomayor had the better argument that in construing those cases. But again, they are Ninth Circuit cases and not binding on the decision of the Supreme Court.

Q: So . . .  interfaces are not copyrightable is what the industry has understood for years?

A: I think that’s largely true. But I am not an industry insider. There are different opinions depending on who you talk to about whether there is an expectation that someone would pay a license fee to use interfaces, APIs, and the declaring code in particular. There are some instances where companies have paid for that. But my understanding, based on what I have read from the amicus briefs filed in this case, commentaries on it and so on, is that more people are of the view that declaring code was not copyrightable, or at least it was industry custom that you can go ahead and copy it to make a compatible program. Again, not everybody will agree on that, and I am not an insider in the industry. So please take whatever I said with a grain of salt. But based on what I saw, I think that is the dominant view.

Q: I talked to friends in the industry. According to some of them, Google could have developed its own declaring codes or APIs, or paid a “moderate” license fee to Oracle to use the Java SE. But Google chose not to.

A: That’s Oracle’s view, and the view of some commentators and people in the industry.

Here is how I would think of it: there are two viewpoints, and ultimately it comes down to which of the viewpoints the Supreme Court finds more persuasive.

On one hand, Oracle is saying: “You can’t copy our declaring code to make a rival platform. If you want to do that, you would have to ask us and pay us if we can reach an agreement. But you can’t just copy our declaring code to make a rival platform.” This sounds intuitively correct.

But on the other hand, Google comes back and says: “You Oracle cannot use your copyright to inhibit us from creating a rival platform. That would be analogous to Baker v. Selden [see Baker v. Selden, 101 U.S. 99 (1879)], where the attempt was made to leverage copyright to control over an uncopyrightable thing.” So basically, Google is saying that you can’t use your copyright to inhibit others from creating a competing product, as that would be undermining the purpose of copyright and extending copyright to some other endeavors or fields.

In response to that, Oracle says: “But if we can’t assert copyright in our declaring code, the incentive to innovate diminishes. The whole purpose of copyright is to provide that incentive.”  I also have long been of the view that many people at least intuitively, rightly or wrongly, feel that if they invest their labor and personality in something, they have some moral entitlement to it, even though you could debate the philosophical issues and how persuasive this really is.

In response to the argument that copyright in declaring code is necessary to validate the incentive to create, Google argues that if the declaring code is copyrightable, then the incentive for people like us to innovate is diminished, because negotiating and paying for the declaring code would give Oracle some control over our creation of the rival platform. This is analogous to the case in Sony v. Universal City Studios [see Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)], where if Sony had lost on the contributory infringement theory, the movie industry would have gained some control over how VCRs and other copying technologies would evolve. Google is also making a point here that were they to develop different declaring codes, it would put their rival platform at a disadvantage since people who are already familiar with the Java declarations would be less likely to use it if they need to learn all these new ones.

That’s where the analogy was made with the QWERTY keyboard. It’s also related to what economists call “network effects”—the value of certain things increases in proportion to the number of other people who are using them. My use of a telephone is negligible if I am the only person in the world who has one. But once more people come onto the network, the value to me of the telephone increases. Similar with the QWERTY keyboard, the network effect provides that if there is one single design in the world, the value of it is much greater and it becomes very difficult for any rival keyboard to ever maintain a position in the marketplace—no one wants to adopt it, even if in theory it is better.

Google would make similar arguments here as well—once people are familiar with the Java declarations, they will be less motivated to learn a new set of declarations to implement the new platform. Therefore, either Google pays for the existing declaration code or makes their own, it diminishes the incentive on Google to develop the rival platform, which enables interoperability for a wide variety of phones and apps.

Thinking beyond this case, if the copyright owners generally have the ability to exert control on declaring codes, maybe that will have the long-term effect of inhibiting innovation and interoperability from which the consumers benefit.

In summary, ultimately, it comes down to which side the Court thinks has the most persuasive arguments.

Q: There is one interesting fact that some people noticed—if you look at how Java originated, Sun actually created Java to break the monopoly of Microsoft. Had Google developed its own declaring codes, it could have ended up with achieving some technology breakthroughs just like Java. Could that be a potential argument to rebut Google’s position regarding inhibition of incentives?

A: Maybe. Network effects are not always insurmountable. Sometimes you might come up with a better product that ultimately does replace the earlier one. Then again, maybe not. People who support Google’s position are concerned that copyright owners having the ability to control the use of declaring code or APIs more generally would ultimately lead to what is called “walled gardens,” which refers to proprietary systems as opposed to open-source systems that enable greater interoperability.

Q: I recall that it was mentioned several times in our copyright law and patents class that it is hard to prove the effects on incentive by evidence. Is it correct to say that is also the case here?

A: Yes, it is. There are a few empirical studies on patent law, and even fewer on copyright law, on this issue.

For example, there may be some empirical evidence showing that the motion pictures industry benefits from having copyright protection. Motion pictures generally take huge amount of money to create. If there is no copyright in motion pictures, it would greatly reduce the incentive to produce, given the high fixed cost and the low marginal cost.

For other works, there is not much empirical evidence one way or the other, either to substantiate that the copyright incentive is necessary or to refute that. Some people would argue that the Oracles of the world would still have very substantial incentive to invest in coming up with new software products. Even if their ability to control the use of some aspects of their software is diminished, there are still substantial benefits to be gained from being the first in the marketplace, e.g., from having good products or from network effects. Maybe the copyright incentive is not altogether necessary. Maybe copyright has more of an inhibiting effect on innovation if it is used too aggressively.

The odd thing about software is that it covers something very functional and the justices were talking about it during the oral argument. It was Congress’s decision, and whether it is a good decision or a bad one, software is copyrightable. Back in the 1970s, there was a debate about whether copyright is a good fit, or maybe it would make sense to have some new and different system in intellectual property law that provides an intellectual property right that lasts for shorter period of time. But the decision was made. Code is copyrightable.

It appears to be some of the justices’ view that the declaring code cannot be viewed as a method of operation because § 101 says code is copyrightable and doesn’t distinguish between declaring code and implementing code. But then you get into a legal doctrine and not the policy. I am not sure whether that argument is necessarily persuasive because it seems you could have a literary work that prima facie looks copyrightable but counts as a method of operation. We will see how the Court resolves this issue.

Q: Justice Gorsuch said it was wise for Google not to linger on the main argument in their brief, i.e., not to make too much Baker v. Selden / § 102(b) arguments. Google did concede that their main argument is the merger doctrine and not the § 102(b) arguments.  Do you think it is wise?

A: I am not sure. Some of the justices seem to be skeptical about the Baker v. Selden argument. Though at the end of the day, it seems to me that the idea-expression dichotomy, the merger doctrine, and the Baker v. Selden argument all kind of go to the same issue—all of them refer to § 102(b) which says that you can’t copyright ideas, facts, concepts, systems and methods of operation. From a policy perspective, the idea is that there are certain things are off limits to copyright, and you shouldn’t be able to use your copyright to exert control over those things. So if the majority of justices see this case as implicating that principle, then whether they invoke the merger doctrine, the method of operation principle, or the Baker v. Selden principle, it comes down to the same outcome. But if the majority of justices don’t see this case as so (since Google could have either paid or made its own declaring code), then that analogy is not going to hold.

Q: Several justices have mentioned that other rivals such as Apple and Microsoft didn’t copy to create their competing platform and that Google could have spent the million dollars to develop its own. What do you think about that?

A: That is certainly one way to look at it. The ultimate question is should Google be required to develop its own system that does not require copying the Java declaring code. Maybe that would not be very productive. Allowing programmers to use Java SE may be better for innovation since it is a tool that so many programmers have already known how to use. If Google is to pay for the declaring code or to create its own new ones, there will be a lot of startup costs, which may be socially wasteful. Again, that’s the debate.

Q: Last question. There are many amicus briefs filed in support of Google, but not so many in support of Oracle. Do you think it reflects where the experts stand, and should it substantially impact the Court’s decision (as the Court frequently said that it does not possess the technical expertise to resolve many complex issues)?

A: Amicus briefs may or may not be representative of opinions as a whole. But I think the fact that many more amicus briefs in the case were filed on behalf of Google should at least give some pause. Maybe the amici have a point that code that enables you to make these calls is somehow different from the implementing code. They are all functional in some sense, but declaring code is probably more functional in a general sense and more analogous to a method of operation. This is the way the industry has grown for years. It is the underlying assumption of many people in the industry that it is perfectly lawful to do this. Maybe the Supreme Court should at least give serious consideration whether it should run up against the custom, since many people in the field of computer science and as well law are of the view that Google’s argument is more sensible. But again, there are people who disagree with that, and the Supreme Court has to evaluate all of the opinions.

(the end of the interview)

Closing

As Professor Cotter has pointed out, the debate behind Google v. Oracle comes down to the core issue of why we should provide copyright protection for computer software. Each side has important interests at stake—Oracle’s interest in guarding its investment of labor and personality in Java and Google’s interest in being free from inhibition of innovation. Society at large also has an interest in having a balanced intellectual property system that provides most incentive for people to create.

The 83 computer scientists mentioned in the amicus briefs are of the point that the sky will fall if the Supreme Court rule against Google in this case. Whether it is true or not, this time, the future of the software industry is really at stake. All we can do is wait and see what the Supreme Court will say about these important issues in months.

 

 

 


Today in 1923: The Return of the Public Domain

Zander Walker, MJLST Staffer 

It’s 2019 and copyrighted works are finally returning to the public domain for the first time in over twenty years. The copyright term was extended in 1976 and 1998 to yield a total term of life of the author plus 70 years for works created after 1978 (with notable exceptions to this rule for certain categories of works), or 95 years from publication for certain works published before 1978. The second term extension in 1998 was created by the Copyright Term Extension Act (“CTEA”) and resulted in an additional 20 years of copyright term. The CTEA is known somewhat derisively as the “Mickey Mouse Act” because of Disney’s lobbying efforts during the 1990’s to extend copyright term.  

This years’ crop of new public domain entries hail from 1923, a time when cloche hats, art deco, and prohibition were all the rage. I have compiled some “highlights” below:

 

  • “The Charleston”: For the unfamiliar, “The Charleston” is a song written to accompany a particular dance that was, confusingly, also known as the Charleston. The dance was relatively simple, repetitive, and meant for mass appeal, making it not too unlike more modern song/dance combinations like the Y.M.C.A., the Macarena, that horse thing from Gangnam Style, the Hokey Pokey, or the Harlem Shake.

 

  • The Pilgrim: a silent film made by Charlie Chaplin about a convict that pretends to be a southern minister. It’s tough to find reviews of The Pilgrim made by legitimate critics, but it has an IMDB user rating of 7.4 (the same as 2018’s Aquaman, for what that’s worth). One review I did manage to find characterized The Pilgrim as “Chaplin when he isn’t swinging for the fences.”

 

  • The Ten Commandments: not to be confused with the famous and highly-grossing 1956 version of the film, Cecil B. DeMille’s 1923 version of The Ten Commandments was a silent film and one of the first films shot on technicolor. In a way, DeMille had already committed it to the public domain—after he was done filming, he buried the set in the Guadalupe desert.

 

  • Tarzan and the Golden Lion: a lesser known story about Edgar Rice Burroughs’ classic Tarzan character, in which Tarzan raises a lion and hunts for lost gold. This is not the first of Tarzan’s works to enter the public domain, as the first Tarzan book was published in 1912 and has been in the public domain for over 30 years. However, Edgar Rice Burroughs created the eponymous Edgar Rice Burroughs, Inc., which continues to hold rights to his works, including trademarks on the Tarzan characters. For works that have entered the public domain, Edgar Rice Burroughs, Inc. has been rather successful in using trademark as a vehicle to prevent use of the Tarzan characters in new works. See, e.g., Edgar Rice Burroughs, Inc. v. Manns Theatres, 195 USPQ 159 (C.D. Cal. 1976).

Edgar Rice Burroughs, Inc.’s protection of the Tarzan characters raises a relevant point. It is very likely that Disney was far more concerned about its copyright in the valuable Mickey Mouse character than in the film containing the first appearance of Mickey Mouse (Steamboat Willie) when it lobbied Congress to extend copyright term. Further, a significant number of intellectual property commentators predict that Disney will continue to protect their Micky Mouse character through trademark when its copyright protection expires, citing Tarzan as a proof-of-concept.

Though copyright term length is perhaps most criticized in the context of traditional works of authorship like books, movies, or plays, it has ramifications on a number of more recent categories of work. For example, computer software is protected under copyright, meaning that Windows 98, which has been unsupported by Microsoft since 2006, can be protected by copyright until at least 2094. Likewise, the original 2007 Apple iOS is eligible for copyright protection through at least 2102. Recent litigation involving read-only memory (ROM) files of older video games highlights a tension between software archivists, who often perceive themselves as responding to a market failure, and copyright holders that is exacerbated by an overly-lengthy copyright term.

The short list of newly public domain works I compiled should really hit this point home—the works themselves have almost no commercial value in 2019. “The Charleston” is just as likely to become the next hit song as is “Greensleeves.” Lesser known works from Chaplin, DeMille, and Burroughs are going to have no higher commercial value in 2019 than they did the previous year. In fact, the only really valuable thing on that list is the Tarzan character, which is likely protected through trademark. What, then, was the point of the CTEA?


The Music Modernization Act May Limit Big Name Recording Artists’ Leverage in Negotiations with Music Streaming Companies

By: Julia Lisi, MJLST Staffer

Encircled by several supportive recording artists, President Trump signed the Music Modernization Act (“MMA”) into law on October 11, 2018. Supporters laud the MMA as a long overdue update for U.S. copyright law. Federal law governs roughly 75% of recording artists’ compensation, according to some estimates. The federal regulatory scheme for music license fees dates back to 1909, before the advent of music streaming. Though the scheme has been tweaked since 1909, the MMA marks a major regulatory shift to accommodate the large market for music streaming services like Spotify and Apple Music.

Prior to the MMA, streaming services virtually had two options for acquiring music catalogs: (1) either acquire licenses for each individual song or, (2) provide music without licenses and prepare for infringement suits. Apple Music adopted the first strategy and as a result initially suffered from a much leaner music catalog. Spotify went with the second strategy, setting aside funds to weather litigation.

The MMA offers a preexisting mechanism, the mechanical license, on a broader scale. Once the MMA takes full effect, streaming services can receive blanket licenses to entire catalogs of music, all in one transaction. The MMA establishes the Mechanical Licensing Collective (the “Collective”), a board of industry participants, which will set license prices. The MMA is, in part, meant to ensure that more participants in the music industry will be paid for their work. For example, music producers and engineers can expect to receive more compensation under the MMA.

While the MMA may broaden the pool of industry participants who get compensation from streaming, the MMA could weaken big name artists’ bargaining positions with streaming services. Recording artists like Taylor Swift and Adele have struggled to keep their albums off streaming services like Spotify. Swift resisted music streaming based on her conviction that streaming services did not fairly compensate artists, writers, and producers. While Swift may have come to an agreement with Spotify and allowed her albums to be streamed, there are still holdouts. More than two years after its release, Beyoncé’s Lemonade still is not on Spotify.

With the Collective controlling royalty rates, big name artists might not have the holdout power that they wield now. If Swift’s music had been lumped into a collective mechanical license, she may not have had the authority to withdraw or withhold her albums from streaming services. The MMA’s mechanical licenses are compulsory, indicating the lower level of control copyright owners may have. Despite this potential loss of leverage, the MMA is widely supported by artists and industry executives alike. Only time will tell whether the Collective’s set prices will make compensation within the music industry fairer, as proponents suggest.


The CASE Act: Enabling Copyright Trolls

By: Zander Walker, Minnesota Journal of Law, Science & Technology Vol. 20 Staffer

Since 2010, there has been a measurable shift in copyright litigation away from infringement deterrence and towards monetization. As recently as 2001, fictitious defendants (often referred to as “John Doe” defendants) were named in only 4% of cases, according to a recent review of copyright litigation. By 2016, John Doe defendants were named in approximately 40% of all copyright litigation. One single plaintiff, Malibu Media, accounted for approximately 60% of John Doe cases in the 2015­–16 period, totaling more than 2,600 lawsuits. These cases disproportionately resolve by voluntary dismissal and virtually never make it to trial. Because of their tendency to pursue legal action for improper or harassing reasons, these plaintiffs have been called “copyright trolls”

Generally, copyright trolls follow a fairly consistent format. The troll obtains a large number of IP addresses associated with a BitTorrent swarm and names those IP addresses as John Doe defendants in one or more complaints for copyright infringement. The troll then files a subpoena for identifying information (e.g., account holder’s name, billing address, etc.) corresponding to each IP address (a process referred to a “unmasking” an IP address). This identifying information allows the troll to send a settlement letter meant to scare the recipient—they typically state the maximum statutory damages of $150,000 and then offer to settle for a fraction of that value. Normally, the troll offers to settle for only a few thousand dollars, though these settlements can occasionally reach sums in the tens of thousands of dollars. Malibu Media, for example, normally obtains settlements valued between $2,000 and $30,000, according to a New Yorker interview with their attorney.

This format was pioneered by two alumni of the University of Minnesota Law School, John Steele and Paul Hansmeier (class of 2006 and 2007, respectively). Prenda Law acquired rights to a number of pornographic films and produced several of their own as well, engaging in thousands of lawsuits for alleged copyright infringement. They attracted notoriety for their unethical, and sometimes illegal, settlement tactics. Steele and Hansmeier were known for seeding torrents of their content in order to induce copyright infringement, and would name IP addresses from their own BitTorrent swarm as defendants. In addition to threats of legal action, Steele and Hansmeier would use the nature of the allegedly infringed content as a source of social blackmail, threatening to share the allegations with friends, family, or employers unless the settlement offer was accepted. Steele and Hansmeier made roughly $6 million through these coerced settlements before they were indicted on criminal charges of fraud and money laundering. Both have pleaded guilty.

Although Prenda Law is now defunct, other copyright trolls have taken their place. Malibu Media alone has filed more than 1,700 lawsuits in the first half of 2018. European nations have begun to crack down on copyright trolls by limiting the ability of trolls to unmask IP addresses, partly the result of lawsuits filed by several large European internet service providers to keep their customers’ information private. Though some US judges have also begun denying these subpoenas, a proposed law is poised to give copyright trolls an administrative bypass to the traditional judicial process for obtaining a subpoena. In October 2017, Rep. Jeffries (N.Y.) introduced the Copyright Alternative in Small-Claims Enforcement Act of 2017 (“CASE Act”), a bill designed to expediate the copyright dispute system for small-entity copyright holders by creating a “Copyright Claims Board” (“CCB”) within the Copyright Office. The CCB would possess broad adjudicatory powers so that it could take on low-value copyright infringement cases. However, section 1405(z) of the Act would allow the CCB to issue subpoenas capable of unmasking John Doe defendants and would grant it authority to promulgate its own rules governing the issuance of those subpoenas. Thus, a copyright troll could potentially utilize the CCB to identify victims in lieu of a subpoena from a federal court. Proponents of the CASE Act claim that copyright trolls would be deterred from filing claims with the CCB because the Act caps damages on CCB claims at $30,000. However, this statutory cap still far exceeds many settlements reached by copyright trolls, meaning it would likely have a minimal effect, if any, on deterring improper litigation. In effect, the CASE Act lacks sufficient safeguards to prevent the CCB from functioning like a “fast-track” for copyright trolls. The House Judiciary Committee has held several hearings on the CASE Act but has not yet put the Act to a vote. If the Act is enacted in the future, hopefully it is without section 1405(z).


Copyright Suit Against Rita Ora and Estate of The Notorious B.I.G. Dismissed

Kaylee Kruschke, MJLST Staffer

 

A copyright law suit brought by Abiodun Oyewole, a member of The Last Poets, against Notorious B.I.G., born Christopher Wallace (Biggie), alleging that Biggie’s 1993 song “Party and Bullshit” took parts of Oyewole’s song “When The Revolution Comes,” was dismissed March 8 by Judge Alison J. Nathan, according to Billboard.

The suit was originally filed in 2016 and was also filed against Rita Ora for her use of parts of Biggie’s “Party and Bullshit” in her song “How We Do.” The suit also listed 12 other defendants who were songwriters, producers, and music publishing companies involved with the allegedly infringing songs, according to Billboard.

Oyewole claimed that the portion of his song that was taken was the following: “But until then you know and I know n*****s will party and bullshit and party and bullshit and party and bullshit and party and bullshit and party …,” according to Judge Nathan’s opinion. The lyrics to Biggie’s song at issue are the following: “Dumbing out, just me and my crew I Cause all we want to do is … I Party … and bullshit, and …” The chorus repeats the phrase “party … and bullshit, and … ” nine times, according to the opinion. The relevant lyrics in Ora’s song are: “And party and bullshit I And party and bullshit I And party and bullshit I And party, and party.” The opinion states that in addition to Oyewole claiming these lyrics were copied, Oyewole also alleges that the songs copy his sound hook.

Canoe states that Oyewole had originally planned to pursue a claim against Biggie before Biggie was murdered in 1997, and subsequently did not feel comfortable going after Biggie’s wife or mother.  But, according to Canoe, Oyewole decided to take action once Ora’s song came out in 2012.

According to Judge Nathan’s opinion, Oyewole failed to adequately serve a number of the defendants, and the ones he did adequately serve, their use fell under the fair use doctrine of copyright law.

There are four main factors the court considered when determining fair use:

 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (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.

 

As for the first factor, the opinion stated that the use of Oyewole’s song by Biggie and Ora was transformative in that the purpose for the phrase “party and bullshit” in Oyewole’s song was condemnation and the purpose in the allegedly infringing songs was glorification, and this factor weighed in favor of fair use.

With the second factor, the opinion stated that Oyewole’s song was a creative work, which means that this would weigh against fair use, but the song was published, which is a fact that weighs in favor of fair use. This factor ultimately weighed in favor of fair use.

For the third factor, the opinion states that the phrase “Party and bullshit” was not essential to the message Oyewole was conveying in his song, so this favor also weighed in favor of fair use.

With the last factor, the opinion states that the songs by Ora and Biggie are not likely to “usurp” the market for Oyewole’s song because the works are so different in purpose and character and have different audiences. This factor also weighed in favor of fair use, making all four factors favoring Biggie and Ora and leading to Judge Nathan dismissing the case.

According to Billboard, the attorneys for the Estate of The Notorious B.I.G. released the following statements the day after the opinion was filed, also the 21st anniversary of Biggie’s death: “This is a well-earned victory for the Estate, and it seems like a message from Christopher to receive it on the anniversary of his passing,” said Nixon Peabody attorney Julian Petty, who represented the B.I.G. estate. “We’re honored to represent a client who is willing to fight and defend such an important legacy.”


Fi-ARRR-e & Fury: Why Even Reading the Pirated Copy of Michael Wolff’s New Book Is Probably Copyright Infringement

By Tim Joyce, MJLST EIC-Emeritus

 

THE SITUATION

Lately I’ve seen several Facebook links to a pirated copy of Fire & Fury: Inside the Trump White House, the juicy Michael Wolff expose documenting the first nine months of the President’s tenure. The book reportedly gives deep, behind-the-scenes perspectives on many of Mr. Trump’s most controversial actions, including firing James Comey and accusing President Obama of wiretapping Trump Tower.

 

It was therefore not surprising when Trump lawyers slapped a cease & desist letter on Wolff and his publisher. While there are probably volumes yet to be written about the merits of those claims (in my humble opinion: “sorry, bros, that’s not how defamation of a public figure works”), this blog post deals with the copyright implications of sharing and reading the pirated copy of the book, and the ethical quandaries it creates. I’ll start with the straightforward part.

 

THE APPLICABLE LAW

First, it should almost go without saying that the person who initially created the PDF copy of the 300+ page book broke the law. (Full disclosure: I did click on the Google link, but only to verify that it was indeed the book and not just a cover page. It was. Even including the page with copyright information!) I’ll briefly connect the dots for any copyright-novices reading along:

 

    • Wolff is the “author” of the book, a “literary work” that constitutes an “original works of authorship fixed in any tangible medium of expression” [see 17 USC 102’].
    • As the author, one of his copyrights is to control … well … copying. The US Code calls that “reproduction” [see 17 USC 106].
    • He also gets exclusive right to “display” the literary work “by means of a film, slide, television image, or any other device or process” [see 17 USC 101]. Basically, he controls display in any medium like, say, via a Google Drive folder.
    • Unauthorized reproduction, display, and/or distribution is called “infringement” [see 17 USC 501]. There are several specific exceptions carved into the copyright code for different types of creative works, uses, audiences, and other situations. But this doesn’t fall into one of those exceptions.

 

  • So, the anonymous infringer has broken the law.

 

  • [It’s not clear, yet, whether this person is also a criminal under 17 USC 506, because I haven’t seen any evidence of fraudulent intent or acting “for purposes of commercial advantage or private financial gain.”]

 

Next, anyone who downloads a copy of the book onto their smartphone or laptop is also an infringer. The same analysis applies as above, only with a different starting point. The underlying material’s copyright is still held by Wolff as the author. Downloading creates a “reproduction,” which is still unauthorized by the copyright owner. Unauthorized exercise of rights held exclusively by the author + no applicable exceptions = infringement.

 

Third, I found myself stuck as to whether I, as a person who had intentionally clicked through into the Google Drive hosting the PDF file, had also technically violated copyright law. Here, I hadn’t downloaded, but merely clicked the link which launched the PDF in a new Chrome tab. The issue I got hung up on was whether that had created a “copy,” that is a “material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [17 USC 101]

 

Computer reproductions are tricky, in part because US courts lately haven’t exactly given clear guidance on the matter. (Because I was curious — In Europe and the UK, it seems like there’s an exception for temporary virtual copies, but only when incidental to lawful uses.) There’s some debate as to whether it’s infringement if only the computer is reading the file, and for a purpose different than perceiving the artistic expression. (You may remember the Google Books cases…) However, when it’s humans doing the reading, that “purpose of the copying” argument seems to fall by the wayside.

 

Cases like  Cartoon Network v. CSC Holdings have attempted to solve the problem of temporary copies (as when a new browser window opens), but the outcome there (i.e., temporary copies = ok) was based in part on the fact that the streaming service being sued had the right to air the media in question. Their copy-making was merely for the purposes of increasing speed and reducing buffering for their paid subscribers. Here, where the right to distribute the work is decidedly absent, the outcome seems like it should be the opposite. There may be a case out there that deals squarely with this situation, but it’s been awhile since copyright class (yay, graduation!) and I don’t have free access to Westlaw anymore. It’s the best I could do in an afternoon.

 

Of course, an efficient solution here would be to first crack down on the entities and individuals that first make the infringement possible – ISPs and content distributors. The Digital Millennium Copyright Act already gives copyright owners a process to make Facebook take bootleg copies of their stuff down. But that only solves half the problem, in my opinion. We have to reconcile our individual ethics of infringement too.

 

ETHICAL ISSUES, FOR ARTISTS IN PARTICULAR

One of the more troubling aspects of this pirateering that I saw was that the link-shares came from people who make their living in the arts. These are the folks who–rightly, in my opinion–rail against potential “employers” offering “exposure” instead of cold hard cash when they agree to perform. To expect to be paid for your art, while at the same time sharing an illegal copy of someone else’s, is logically inconsistent to me.

 

As a former theater actor and director (read: professional almost-broke person) myself, I can understand the desire to save a few dollars by reading the pirated copy. The economics of making a living performing are tough – often you agree to take certain very-low-paying artistic jobs as loss-leaders toward future jobs. But I have only met a very few of us willing to perform for free, and even fewer who would tolerate rehearsing with the promise of pay only to be stiffed after the performance is done. That’s essentially what’s happening when folks share this bootleg copy of Michael Wolff’s book.

 

I’ve heard some relativistic views on the matter, saying that THIS book containing THIS information is so important NOW, that a little infringement shouldn’t matter. But you could argue that Hamilton, the hit musical about the founding of our nation and government, has equally urgent messages regarding democracy, totalitarianism, individual rights, etc. Should anyone, therefore, be allowed to just walk into the theater and see the show without paying? Should the cast be forced to continue performing even when there is no longer ticket revenue flowing to pay for their efforts? I say that in order to protect justice at all times, we have to protect justice this time.

 

tl;dr

Creating, downloading, and possibly even just viewing the bootleg copy of Michael Wolff’s book linking around Facebook is copyright infringement. We cannot violate this author’s rights now if we expect to have our artistic rights protected tomorrow.

 

Contact Me!

These were just some quick thoughts, and I’m sure there’s more to say on the matter. If you’d like to discuss any copyright issues further, I’m all ears.


Fi-ARRR-e & Fury: Why Even Reading the Pirated Copy of Michael Wolff’s New Book Is Probably Copyright Infringement

By Tim Joyce, MJLST EIC-Emeritus

 

THE SITUATION

Lately I’ve seen several Facebook links to a pirated copy of Fire & Fury: Inside the Trump White House, the juicy Michael Wolff expose documenting the first nine months of the President’s tenure. The book reportedly gives deep, behind-the-scenes perspectives on many of Mr. Trump’s most controversial actions, including firing James Comey and accusing President Obama of wiretapping Trump Tower.

 

It was therefore not surprising when Trump lawyers slapped a cease & desist letter on Wolff and his publisher. While there are probably volumes yet to be written about the merits of those claims (in my humble opinion: “sorry, bros, that’s not how defamation of a public figure works”), this blog post deals with the copyright implications of sharing and reading the pirated copy of the book, and the ethical quandaries it creates. I’ll start with the straightforward part.

 

THE APPLICABLE LAW

First, it should almost go without saying that the person who initially created the PDF copy of the 300+ page book broke the law. (Full disclosure: I did click on the Google link, but only to verify that it was indeed the book and not just a cover page. It was. Even including the page with copyright information!) I’ll briefly connect the dots for any copyright-novices reading along:

 

    • Wolff is the “author” of the book, a “literary work” that constitutes an “original works of authorship fixed in any tangible medium of expression” [see 17 USC 102’].
    • As the author, one of his copyrights is to control … well … copying. The US Code calls that “reproduction” [see 17 USC 106].
    • He also gets exclusive right to “display” the literary work “by means of a film, slide, television image, or any other device or process” [see 17 USC 101]. Basically, he controls display in any medium like, say, via a Google Drive folder.
    • Unauthorized reproduction, display, and/or distribution is called “infringement” [see 17 USC 501]. There are several specific exceptions carved into the copyright code for different types of creative works, uses, audiences, and other situations. But this doesn’t fall into one of those exceptions.

 

  • So, the anonymous infringer has broken the law.

 

  • [It’s not clear, yet, whether this person is also a criminal under 17 USC 506, because I haven’t seen any evidence of fraudulent intent or acting “for purposes of commercial advantage or private financial gain.”]

 

Next, anyone who downloads a copy of the book onto their smartphone or laptop is also an infringer. The same analysis applies as above, only with a different starting point. The underlying material’s copyright is still held by Wolff as the author. Downloading creates a “reproduction,” which is still unauthorized by the copyright owner. Unauthorized exercise of rights held exclusively by the author + no applicable exceptions = infringement.

 

Third, I found myself stuck as to whether I, as a person who had intentionally clicked through into the Google Drive hosting the PDF file, had also technically violated copyright law. Here, I hadn’t downloaded, but merely clicked the link which launched the PDF in a new Chrome tab. The issue I got hung up on was whether that had created a “copy,” that is a “material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [17 USC 101]

 

Computer reproductions are tricky, in part because US courts lately haven’t exactly given clear guidance on the matter. (Because I was curious — In Europe and the UK, it seems like there’s an exception for temporary virtual copies, but only when incidental to lawful uses.) There’s some debate as to whether it’s infringement if only the computer is reading the file, and for a purpose different than perceiving the artistic expression. (You may remember the Google Books cases…) However, when it’s humans doing the reading, that “purpose of the copying” argument seems to fall by the wayside.

 

Cases like  Cartoon Network v. CSC Holdings have attempted to solve the problem of temporary copies (as when a new browser window opens), but the outcome there (i.e., temporary copies = ok) was based in part on the fact that the streaming service being sued had the right to air the media in question. Their copy-making was merely for the purposes of increasing speed and reducing buffering for their paid subscribers. Here, where the right to distribute the work is decidedly absent, the outcome seems like it should be the opposite. There may be a case out there that deals squarely with this situation, but it’s been awhile since copyright class (yay, graduation!) and I don’t have free access to Westlaw anymore. It’s the best I could do in an afternoon.

 

Of course, an efficient solution here would be to first crack down on the entities and individuals that first make the infringement possible – ISPs and content distributors. The Digital Millennium Copyright Act already gives copyright owners a process to make Facebook take bootleg copies of their stuff down. But that only solves half the problem, in my opinion. We have to reconcile our individual ethics of infringement too.

 

ETHICAL ISSUES, FOR ARTISTS IN PARTICULAR

One of the more troubling aspects of this pirateering that I saw was that the link-shares came from people who make their living in the arts. These are the folks who–rightly, in my opinion–rail against potential “employers” offering “exposure” instead of cold hard cash when they agree to perform. To expect to be paid for your art, while at the same time sharing an illegal copy of someone else’s, is logically inconsistent to me.

 

As a former theater actor and director (read: professional almost-broke person) myself, I can understand the desire to save a few dollars by reading the pirated copy. The economics of making a living performing are tough – often you agree to take certain very-low-paying artistic jobs as loss-leaders toward future jobs. But I have only met a very few of us willing to perform for free, and even fewer who would tolerate rehearsing with the promise of pay only to be stiffed after the performance is done. That’s essentially what’s happening when folks share this bootleg copy of Michael Wolff’s book.

 

I’ve heard some relativistic views on the matter, saying that THIS book containing THIS information is so important NOW, that a little infringement shouldn’t matter. But you could argue that Hamilton, the hit musical about the founding of our nation and government, has equally urgent messages regarding democracy, totalitarianism, individual rights, etc. Should anyone, therefore, be allowed to just walk into the theater and see the show without paying? Should the cast be forced to continue performing even when there is no longer ticket revenue flowing to pay for their efforts? I say that in order to protect justice at all times, we have to protect justice this time.

 

tl;dr

Creating, downloading, and possibly even just viewing the bootleg copy of Michael Wolff’s book linking around Facebook is copyright infringement. We cannot violate this author’s rights now if we expect to have our artistic rights protected tomorrow.

 

Contact Me!

These were just some quick thoughts, and I’m sure there’s more to say on the matter. If you’d like to discuss any copyright issues further, I’m all ears.