Has Copyright Enforcement Gone Too Far?

June 9, 2016

By Julie A. Ahrens, Timothy Greene, Corynne McSherry, Mitchell L. Stoltz and Kit Walsh

Illustration © Sharon Ber

At a time when photographers and other creators are battling online infringement of their work, and lobbying for legislation that would make copyright enforcement easier, there is another school of thought that advocates for the easing of copyright protections. For example, the Electronic Frontier Foundation (EFF) and Center for Internet Society (CIS) at Stanford University argue that copyright law is stifling creative expression in the digital world, and should be reformed. (The following essay is an edited remix of two documents authored by EFF and CIS. The full documents can be found on their websites here and here.)

The U.S. Constitution provides for the protection of intellectual property, offering exclusive rights to creators “for limited Times” in exchange for “promot[ing] the Progress of Science and useful Arts[.]” Creation alone cannot satisfy the Constitution’s goals for intellectual property protection. Dissemination is necessary to promote the progress of knowledge, as it provides the mechanism for spreading knowledge and the means for new creators to build off the insights of previous creators in the development of a virtuous cycle of creation, dissemination, and further creation and dissemination.

The current regime of expansive rights for copyright holders, a lack of clear safe harbors for important speech activities, and astronomical statutory damages gives copyright owners the de facto power to censor remix. The effect is aggravated by private arrangements such as YouTube’s ContentID or Facebook’s copyright monitoring system. ContentID, for example, uses a computer algorithm to detect copyrighted works and enables rights holders to censor or divert profits from the speech of others, even when copyright law gives them no right to do so.

Remix as defined—the production of new creative works through “changing and combining portions of existing works”—is what the fair use doctrine is fundamentally about. [And] many remixes would be protected by the doctrine of fair use—assuming the remixer had the financial means and wherewithal to take a risk in court. Facing the risk of statutory damages and the time-consuming nature of resolving fair use cases, most remixers back down instead.

The term “remix” has come to stand for a wide range of creative activities that are disfavored by the current copyright regime because they rely on cultural works that are owned by others. The category includes photomanipulations, fan fiction, mashups of music and video, fan edits, redubs, video game modifications, and many other forms of expression.

These activities require copying or imitating aspects of a copyrighted work, leading some rights holders to send cease and desist letters to remixers who criticize them, whose politics or aesthetics they disagree with, who depict adult content, or who commercialize their remix even in a way that has no impact on the market for the original.

The fact that copyright law represses a crucial channel for ordinary people, including underrepresented minorities, to speak and be heard reflects a serious problem in the law. This problem should be taken just as seriously as it would be in other areas of law where certain speakers or media are chilled by government regulation.

It is not that creators are doing anything fundamentally different from the activities they undertook in the past. Rather, there are several different threads now coming together. First, tools for the creation of digital remixes are both cheaper and more widespread than before. Second, the scale of distribution has changed, such that remixers can reach a much broader audience through services like YouTube, Vimeo, SoundCloud, and BandCamp. Third, rights holders have increasingly tried to extract monetary value from remixing in ways that they customarily did not (or perhaps could not).

In our experience, the most pressing problem is not creation but dissemination. Uncertain fair use rights generally don’t deter people from creating remixes in the first place. But even an entirely improper challenge may inhibit the dissemination of those works. Thus, remixes today are often only available at the whim of the copyright holder, whose motives may range from the well-intentioned to the nefarious.

Laws like copyright—the goals of which are expressly couched in instrumental language—cannot do their job without broad public knowledge of the existence and scope of the rights those laws provide. Open questions about the doctrine of fair use and the instability of licensing arrangements provide cover for copyright holders to make overbroad threats of litigation against remixers. It is sometimes difficult for us to provide definitive guidance to creators about whether their works will fall within fair use’s protection. The other side of the coin is that even the most over-broad assertions of infringement can be deemed plausible.

The specter of statutory damages drastically increases the copyright holder’s bargaining position to a point where only the savviest (or richest) creators can withstand the onslaught. Even where licensing is an option, the fees sought are often in the thousands of dollars. Thus, bargaining often fails and content creators—and consumers—are made significantly worse off.

We explained [to the US Department of Commerce] the chilling effect copyright has on important remix speech and suggested a clear and narrow delineation of copyright owners’ ability to restrict derivative works like remixes. The ability to control derivative works would only cover faithful adaptations such as translations, novelizations, or abridgements, and would not reach creative works using the original as inspiration or raw material.

The Commerce Department panel did not discuss our recommendations, [but]. instead focused its discussion of remix on three categories: the creation of a remix ‘safe harbor,’ the development of a compulsory licensing regime for remix, and encouraging voluntary licensing practices. It concluded that no binding measures should be adopted, but that voluntary licensing and education for remixers to know their fair use rights would be valuable.

While it certainly would be valuable for all remixers to know the extent of their rights, artists who know the state of the law are often more chilled than those who assume that online norms around shared culture are reflected in the law. More knowledge about a broken system is not a great fix.

Similarly, we have little hope that licensing regimes will address the chilling effect of an overly restrictive copyright system. The trend has been for rights holders to seek an expansion of rights to generate revenue from every use of copyrighted works that they can detect, and in the Commerce proceeding many spoke of a desire to censor uses they found offensive (a right they do not have under existing US law). Existing licensing practices can be a death knell for entire art forms: commercial sampling, for example, was decimated when artists believed they had to license samples and those licenses were not forthcoming on reasonable terms (or sometimes on any terms at all). Similarly, licensed online music was barren for years because of unwillingness to license on reasonable terms.

Although we are disappointed that the [Commerce Department] didn’t recommend stronger protection for remixes, we will continue to advocate for the rights of ordinary people to express themselves using elements of popular culture and push back against copyright law when it sabotages the creation of new cultural works.

References: The Commerce Department Has Good Recommendations For Fixing Copyright Law—But More Is Needed (By Mitchell L. Stoltz and Kit Walsh)

Comments in Response to the Department of Commerce’s Green Paper, “Copyright Policy, Creativity, and Innovation in the Digital Economy” by Julie A. Ahrens, Timothy Greene, Corynne McSherry, and Mitchell L. Stoltz

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