RIAA: all of everything are belong to us

Correction:  Techdirt is now reporting that this story is bogus and that the RIAA never threw out a number in the trillions.

The Recording Industry Association of America sued peer-to-peer filesharing service Limewire for copyright infringement years ago, and it successfully shut down that service back in 2010.  Now, the RIAA says it’s owed a few dollars in damages for those years of Limewire’s infringement.  $72 trillion, to be exact:

According to documents recently filed in the U.S. District Court for the Southern District of New York, the RIAA was asking for damages of about $72 trillion dollars, a figure that the judge in the case said is “absurd.” Judge Kimba Wood wrote in a recent decision that, “An award based on the RIAA calculations would amount to ‘more money than the entire music industry has made since Edison’s invention of the phonograph in 1877.'”

The estimated wealth of the entire world is about $60 trillion, meaning that the RIAA should have known how outlandish its claims were to begin with.

A modest quibble with the AV Club’s figures:  the CIA puts Gross World Product (the combined GDP for all countries on Earth) a bit higher, at $70.16 trillion for 2011.  But any way you slice it, the RIAA thinks that copyright infringement due to one (now defunct) company entitles it to the value of everything in the world.

Literally.

Lobbynomics v. empirical data

Ars Technica points to a UK report asserting that “lobbynomics” rather than empirical data drives much of the intellectual property policy debate:

There are three main practical obstacles to using evidence on the economic impacts of IP…[3] Much of the data needed to develop empirical evidence on copyright and designs is privately held. It enters the public domain chiefly in the form of “evidence” supporting the arguments of lobbyists (“lobbynomics”) rather than as independently verified research conclusions.

My own experience in dissecting IP developments supports this view.  It is surprisingly difficult to find “hard data” about copyright piracy, leaving any “debate” to a shouting match between proponents of bald assertions.

We need better data, and we all need to be more circumspect (and humble) before drawing sweeping conclusions from the little that is available.

Righthaven’s contract unsealed; sanctions a real possibility

Joe Mullin at paidContent has just posted a story about Righthaven’s previously sealed contract with Steves Media, parent company of the Las Vegas Review-Journal:

The contract reveals that the controversial copyright-enforcement company and the LV R-J are splitting their net earnings from suing hundreds of bloggers on a 50-50 basis. It also shows that the LV R-J is still largely in control of Righthaven’s litigation strategy—a fact that could end up being ruinous for Righthaven’s campaign of copyright lawsuits.

A link to the judge’s order and the contract is available here.  I’ll update this post when I’ve had time to read and analyze it thoroughly…

Update: After reading through the contract and order to unseal for myself, I think these are the most relevant sections:

Section 3.3

Stephens Media shall have the right to Notify Righthaven…that Righthaven should not take any Infringement Action with respect to a particular putative infringer.…Stephens Media shall only send any Declination Notice on a reasonable basis with the grounds of reasonability being that a particular putative infringer [1] is a charitable organization, [2] is likely without financial resources, [3] is affiliated with Stephens Media directly or indirectly, [4] is a present or likely future valued business relationship of Stephens Media or otherwise would be a Person that, if the subject of an Infringement Action, would result in an adverse result to Stephens Media.

I guess it’s safe to conclude that Stephens Media did not see fit to step in on behalf of the Center for Intercultural Organization (“a charitable organization”), Brian Hill (an autistic blogger who practically defines someone “likely without financial resources”), various newspaper sources (“affiliated with Stephens Media directly or indirectly”), or any of the hundreds of other bloggers (“likely future valued business relationship of Stephens Media”) Righthaven has sued.

Sections 7 and 8

Section 7.1:

Stephens Media shall effect the assignments to Righthaven of copyrights as required by this Agreement…by executing a particularized assignment with respect to each copyright and each consistent with (and in form and substance the same as) the scope of assignment….

Section 7.2:

Despite any such Copyright Assignment, Stephens Media shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.

Section 8:

Stephens Media shall have the right at any time to terminate, in good faith, any Copyright Assigmnent (the “Assignment Termination”) and enjoy a right of complete reversion to the ownership of any copyright that is the subject of a Copyright Assignment; provided, however, that if Righthaven shall have commenced an action to prosecute an infringer of the Stephens Media Assigned Copyrights, Stephens Media shall be exclusively responsible for effecting termination of such action including, without limitation, all Losses associated with any dismissal with prejudice.

Taken together, these three excerpts seem to affirm that Righthaven is essentially buying the right to bring lawsuits from Stephens Media, which is arguably impermissible under Silvers v. Sony Pictures Entertainment, Inc., 402 F. 3d 881 (9th Cir. 2005).

Section 11

Stephens Media understands and acknowledges that Stephens Media and Righthaven may be liable for an Infringer’s attorneys’ fees as required by Law in connection with an Infringement Action. Stephens Media further understands that a lawsuit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process. If any Claim made by an Infringer in an Infringement Action results in Losses, other than Losses described in Section 8, Righthaven shall be solely liable for such Losses and shall indemnify Stephens Media from and against any such Losses but only if such Losses do not arise out of a misrepresentation by Stephens Media or other breach by Stephens Media of a provision of this Agreement.

I guess we now have incontrovertible evidence that both the newspaper and Righthaven knew “that a lawsuit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process”!  I wouldn’t be surprised if this section gets referenced in a future sanctions order.

Conclusion:  what does Judge Hunt think?

It’s impossible to know, of course, what’s inside Judge Hunt’s mind.  However, his order to unseal the Righthaven contract strongly suggests that he is growing weary of Righthaven’s legal antics:

There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here.

There has been presented absolutely no basis to strike the Request to Unseal, and that motion will be denied. [emphasis added]

No doubt Righthaven is already sorry they filed this case.  The only remaining question is whether their sorrow will be measured in dollars.  And just how many.

YouTube’s copyright school

In an apparent bid to prevent one-time copyright infringers from becoming two-timers (or more), YouTube has created a 4 minute and 39 second copyright school on its website, as explained on the official YouTube blog:

Because copyright law can be complicated, education is critical to ensure that our users understand the rules and continue to play by them. That’s why today we’re releasing a new tutorial on copyright and a redesigned copyright help center. We’re also making two changes to our copyright process to be sure that our users understand the rules, and that users who abide by those rules can remain active on the site.

If we receive a copyright notification for one of your videos, you’ll now be required to attend “YouTube Copyright School,” which involves watching a copyright tutorial and passing a quiz to show that you’ve paid attention and understood the content before uploading more content to YouTube.

Ray Dowd over at the Copyright Litigation Blog is not a fan, noting that Google:

  • fails to mention the existence of the public domain;
  • states that “[i]f you are uncertain as to whether a specific use qualifies as a fair use, you should consult a qualified copyright attorney”; and
  • fails to mention the Constitutional purpose of copyright law.

I have to agree with Ray.  The video’s section on fair use (direct link) is particularly egregious.  Unlike the rest of the video, this section adopts the sped-up vocal “style” often adopted at the end of radio commercials to breeze through legal disclaimers (e.g., “Sweepstakes only open to U.S. residents 18 or older…”)  How is this even attempting to educate and inform?

Far from providing a balanced view of copyright law, YouTube’s clear, bottom-line message is this:  Don’t remix or even approach the fair use line.  This is certainly one vision of copyright law, but there are others.  I am reminded of Christina Mulligan’s excellent blog post last June that looked at contemporary copyright law through the lens of Fox’s hit show Glee:

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

Lawrence Lessig makes the related point that such recreations benefit society, pointing to John Phillip Sousa’s early-twentieth-century fear that recorded music would eventually displace amateur performance entirely.

Google is taking a lot of heat from copyright owners these days, and it’s hard to blame them from trying to stave off any accusations of infringement that might eventually stick to Google itself.  Nevertheless, I don’t think their frenetic, one-sided “educational” video is the best solution.

Politicizing copyright use

Various outlets are reporting that former Florida Governor Charlie Crist issued a YouTube apology to Talking Heads’ singer David Byrne for using the song “Road to Nowhere” without permission as part of Crist’s 2008 senatorial campaign.  Quoting from the ABA Journal:

In a written statement [dated 11 April 2011], Byrne said he had been surprised to learn that such unauthorized use of a song isn’t all that unusual, and said that he was "feeling very manly" about having protested rather than simply let the issue go.

"Other artists may actually have the anger but not want to take the time and risk the legal bills. I am lucky that I can do that," he stated. "Anyway, my hope is that by standing up to this practice maybe it can be made to be a less common option, or better yet an option that is never taken in the future." [emphasis added]

Such explicitly political use of artists’ music certainly has a long history.  Just a few weeks ago, the ABA Journal published an article by L.J. Jackson titled “Musicians Chafe at Politicians’ Misappropriations of Their Work” which demonstrates that

Crist’s legal problems are not unique.

In 1984, Bruce Springsteen made headlines when he objected to President Ronald Reagan’s use of his hit "Born in the U.S.A." as an anthem for his re-election campaign. The rock icon accused Reagan of subverting the true meaning of the song and playing it at rallies without his consent.

Those were the good old days, when an artist’s biggest campaign concern was a candidate using their tunes to pump up the crowd (permitted with a blanket performance license). But times, they are a-changing, and the proliferation of viral videos, YouTube, and Facebook has opened a Pandora’s box of copyright problems for politicians seeking pop-culture cred. [emphasis added]

Jackson doesn’t elaborate on the “blanket performance license” point, but it’s a major one that bears unpacking.  If a politician has the relevant blanket performance licenses from the relevant performance rights organizations (PROs), (s)he is allowed to play recording artists’ music at campaign rallies.  It doesn’t matter if the artist dislikes that particular politician any more than if (s)he dislikes a particular local radio DJ:  the politician (and the DJ) still have permission to play.

I think there are solid policy justifications for allowing such blanket licenses (and thus largely foreclosing artists’ ability to object to particular uses).  Aside from the enormous transaction costs that would be involved with case-by-case negotiation and approval, music clearly lies at the center of mainstream American culture.  Given music’s powerful emotional resonances which often extend well beyond the intent and control of the original artists, allowing artists to withhold public performance of their recorded music by particular non-profits, schools, businesses, or political campaigns seems perverse at best.  In extreme cases, such denials may even be tantamount to private censorship.

Whether you agree with my policy justifications or not, however, the fact remains that blanket performance licenses for live events already exist.  Thus, the question really is this:  why is the Internet any different?  What makes “viral videos, YouTube, and Facebook…a Pandora’s box of copyright problems” where none exist in the physical world of live campaign rallies, sporting events, or trade shows?

I submit that there really is no difference.  The same transaction cost and First Amendment justifications for blanket performance licenses apply with equal weight to Internet media.  To me, any policy difference appears to be simply a historical artifact.

A blogger at Clancco asks:

I wonder what the “free culture” lobbyists have to say about fair use, free culture, and the world is our public domain oyster when it comes to a Republican politician using an artist’s song without the artists permission? We certainly know what Byrne thinks…and it’s not good for Republicans.

I don’t know what “the ‘free culture’ lobbyists” would say, but my response is this:  the political affiliation of the music’s user should not matter one iota.  We can certainly have a policy debate, but that doesn’t mean the debate must (or should) be political.

Documenting fair use

Documentary.org has a wonderful write-up by Tamsin Rawady and Alex Buono about fair use in the documentary film setting.  As the writers/producers of Bigger Stronger Faster, a documentary about pop cultural influences driving performance-enhancing drug use, they grappled with how to tell their story legally:

The first problem we encountered is that it seemed like Fair Use was sort of an urban legend: Does it really exist? Can you really use archival clips without licensing them? And does anyone understand how this all works?

Fortunately, Rawady and Buono retained excellent legal counsel who were able to walk them through the issues and get them a highly defensible final cut, though even that wasn’t easy:

After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims. [emphasis added]

I’m certainly happy that it worked out better for Bigger Faster Stronger than it did for Slaying the Dragon:  Reloaded.  Rawady and Buono’s story reminds us that, in law as in life, (1) an ounce of prevention is often worth a pound of cure and (2) the best (fair use) defense is a good (proactive) offense.

Further resources and reading: