In November 2023, the Court of Appeal in THJ v Sheridan offered an important clarification of the originality requirement under UK copyright law, which clears a path for open culture to flourish in the UK.
In setting the copyright originality threshold, the court stated: “What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch.” Crucially, the court affirmed that “this criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom.”
The post points out that the case is potentially a “game-changer in the UK open culture landscape”:
Because by setting the standard for copyright to arise based on “free and creative choices” it effectively bars copyright claims from being made over faithful reproductions of public domain materials (i.e., materials that are no longer or never were protected by copyright).
This touches on a topic that Walled Culture has written about many times: the fact that many museums and art galleries around the world try to claim copyright on faithful reproductions of artistic creations in their collections that are unequivocally in the public domain. Their argument, such as it is, seems to be that taking a digital photo or making a 3D copy requires such an immense intellectual effort that a new monopoly should be granted on it. It’s really about money, of course.
The Creative Commons post mentions “A Culture of Copyright”, a useful report by Dr. Andrea Wallace that looked at how widespread the problem was in the UK. The blog post also refers to a CC Open Culture Platform working group that developed proposals for “technical, legal, and social interventions” to address the problem of “PD BY” (that is, the use of CC-BY licenses to share reproductions of public domain works).
Although the group’s idea of adding some kind of courtesy (non-binding) request to all deed pages is interesting and well intentioned, it takes a dangerous step towards compromising the public domain, which is already under constant attack from copyright maximalists. The full and undiluted version of the public domain must be maintained – that’s the supposed bargain of copyright: after being locked down by an (over-long) government-backed intellectual monopoly, works enter the public domain without restriction.
In any case, as an important analysis by Douglas McCarthy points out, just because a UK court has ruled that faithful reproductions of public domain works are in the public domain doesn’t mean that galleries and museums there will gracefully allow us to access to millions of images, and to use them for any purpose. Once people become hooked on the powerful drug of a copyright monopoly, they are very reluctant to give it up. McCarthy explains how some UK cultural institutions are likely to respond:
I anticipate that THJ v Sheridan will accelerate the existing trend towards contract law replacing copyright law as a means of controlling access to public domain collections. If this happens, one shouldn’t assume that access policies will become any more open – the old status quo may simply persist in new form.
Basically, before people can access a Web site with the public domain images of public domain artworks, they are forced to accept terms and conditions that require them to pay for the privilege:
The model of restricted access to digitised public domain works, governed by contract law, has been around for some time. It is, to take one example, practised by Tate Images, enabling Tate to charge fees (on the usual sliding scale of cost, based on the scope and scale of intended reproduction) for licensing images without copyright.
The Tate Gallery should be ashamed of this approach, as should any other public institution that adopts it. In case they have forgotten, they are entrusted with the masterpieces of the past on behalf of the public, which has generally paid for them and their preservation. As such, the public should have free and unrestricted access not just to the works themselves, but also to the public domain reproductions of them. If they refuse to allow this, museums and galleries are not only abandoning their mission, and betraying the trust placed in them, they are thumbing their nose at an important court ruling.
If this shift to contract law becomes common, it will be a further proof that copyright not only harms the public and artists, as Walled Culture the book (free ebook versions) lays out in detail, but also seems to cause those who are obsessed with it to lose their collective minds.
Twelve years ago, we released our very first research report, the Sky is Rising. Back then, in 2012, the commonly accepted wisdom was that the internet was killing various creative industries, from the music industry (especially!) to movies, TV, and books among other things. This didn’t seem to match with the world that we were seeing, so we dug into all the data (and, wherever possible, sought to use the industry’s own numbers) and found that while some industries were struggling to adapt to the internet, the data actually showed that the sky was rising, not falling.
We found that more content than ever before was being created (though not all through traditional channels). We found that people were engaging with more content than ever before. And, contrary to the narrative spun by some legacy industries, we saw that people were more than willing to spend money on content. They were just focused on having it be convenient and accessible where they wanted it to be.
Over the years with support from CCIA, we released additional editions of the Sky is Rising report via our think tank The Copia Institute, but our last one was five years ago in 2019, before the COVID pandemic. Last year we set out to revisit not just the data, but the structure of the whole report. The process took almost the entire year, but we’re excited to release our latest edition of The Sky is Rising.
In the original report, a decade ago, we were focused just on countering the misleading narrative that the internet was killing the creative industries. Not only is that myth dead and buried, the latest report suggests quite the opposite: that the internet has saved those industries and basically become the lifeblood of all creative industries.
Throughout the report what we saw time and time again is that the growth in these industries is happening because of the internet. It’s making it easier than ever to create, to share, to distribute, to promote, to sell, and to engage. Creativity is thriving, and much of it is entirely due to the internet.
Indeed, we saw this most directly in industries most heavily impacted by COVID. One of our concerns going into this report was looking at how the pandemic impacted things, and the data certainly confirmed that some industries had huge problems: namely live music and movie theaters. But, in both cases, the amazing thing that the data showed was how the internet rushed in to fill the void, providing new ways to experience content that traditionally had required performance spaces, helping to tide things over during the periods of lockdowns, and then easing the rebound after lockdowns loosened.
The internet helped spare those industries, and helped billions of people around the globe continue to engage with and experience wonderful art, even in the midst of a global pandemic.
Over and over again we saw examples of the internet helping these industries out. The most stark and clear example is the recording industry (which, as a reminder, is just one segment of the music industry). This was always Exhibit A for an industry supposedly being destroyed by the internet. Except, just as we saw, with the ability to create more music, distribute it, and enable more convenient access to everyone, the business models have sorted themselves out, and now the internet is responsible for the industry reaching new highs.
On the video side of things, while COVID took a huge bite out of the box office, when lumped together with digital streaming, the larger market for video basically has continued to grow.
For what it’s worth, that chart highlights a change we made with this year’s report. Ever since the original edition, we had been combining movies and TV into a single “video” section. This turned out to be prescient as the line between movies and TV started to blur quite a bit during the streaming era. As we were putting together this year’s report, we started to lean in on this thinking, and we retitled the sections and expanded a few. In the old reports, we covered Music, Video, Books, and Video Games. This year, we have switched it to the activity involved: Listening, Watching, Reading, and Playing. This allowed us to expand some of these categories, and slot in some newer things like TikTok videos, digital magazines, and podcasts.
Also, we’ve added a “mini-chapter’ on AI. We’re way too early into the generative AI world to have that much data on what it means for creativity and the creative industries. However, from what we’re seeing, it feels like “generative AI” is taking on the misleading role that “the internet” had in the early 2000s, of a new technology that some are predicting will destroy certain industries. And, while it’s early, what we’re seeing is (again) quite the opposite. AI has all the makings of an incredible tool to help people be even more creative and to create more wonderful works that people will enjoy.
There’s a lot more in the full report, which weighs in at 80 pages, chock full of details, charts, and graphs. But the key takeaway from it should be that the story from the early 2000s about how the internet was going to kill the creative industries and creators was not only wrong, it had everything backwards. The internet has been a huge boost to the creative industries, opening up new ways for people to create, to distribute, and to engage with content of all kinds.
The sky is truly rising, not falling. And, we should keep that in mind as we live through yet another apparent moral panic about the next “threat” to these industries.
The attacks on generative AI started out claiming that it was all about protecting the creators whose works were being “stolen” in some mysterious way by virtue of software analyzing them. In some cases, that high-minded stance has already degenerated into yet another scheme to pay collecting societies even more for doing next to nothing. But beyond all this unseemly squabbling, there is a much deeper and more interesting question. It concerns not what goes into generative AI systems, but what comes out.
Generative AI finds subtle patterns in the works it analyzes, which it then uses to create new material, guided by the prompts that are provided by users. Some want to call that “theft”, but it’s a key element of all human creativity too. A fine post by Mike Loukides on the O’Reilly site acknowledges this, and goes on to make an important point:
It’s naive to say that creativity isn’t partly based on the work of predecessors. You wouldn’t get Beethoven without the works of Haydn and Mozart. At the same time, you don’t get Beethoven out of the works of Haydn and Mozart. An AI trained on the works on Haydn and Mozart wouldn’t give you Beethoven; it would give you some (probably rather dull) amalgam, lacking the creativity of either Haydn or Mozart. Nor can you derive the Beatles by mixing together Chuck Berry and Little Richard, though (again) there are obvious relationships.
Loukides explains how this kind of creative borrowing occurs in all the arts:
While borrowing in literature is usually more covert than overt, T. S. Eliot famously said, “Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different from that from which it was torn.”
And:
As in literature, copying in painting is usually covert rather than overt. Pablo Picasso also may have said “good artists copy, great artists steal,” joining Eliot, Wilde, and others. Copying paintings by great artists is still an exercise for aspiring artists – although most of us recognize that more paintings in the style of Vermeer aren’t interesting as works of art.
The examples mentioned by Loukides all underline the point that simply analyzing artistic works does not guarantee that the output will be art. In fact, there is already evidence that generative AI is struggling:
Creativity sets a high bar, and I don’t think AI meets it yet. At least one artist thinks that tools like Midjourney are being trained to favor photorealism, rather than originality. In “The Curse of Recursion,” a research group shows that generative AI that is trained on the output of generative AI will produce less surprising, original output. Its output will become pedestrian, expected, and mediocre, and that might be fine for many applications.
Rather than reflexively demanding a cut of what is likely to be very little revenue from the “pedestrian” and derivative material generated using AI, artists should see it instead as a superb advertisement for their unique creative skills that software algorithms simply can’t match.
It’s that time… Get ready for the Gaming Like It’s 1928! public domain game jam! The game jam, like all our public domain game jams, runs from January 1st through January 31st, and we’re eager to see what kinds of games, both digital and analog, you’ll make by building on newly public domain works. As always we’ll have awards in six different categories: best analog game, best digital game, best adaptation, best visuals, best remix, and best deep cut.
In January 2019, work in the US from 1923 entered the public domain. It was the first time in decades that works in the US had entered the public domain, as certain copyright interests, led by the Walt Disney Company, had continually pushed out the term of copyright again and again and again.
A while back Tom Bell coined the term the “Mickey Mouse Curve” to describe how copyright extensions seemed to keep happening just before Mickey Mouse would be entering the public domain.
However, in part because of widespread activism and the calling out of this curve, the legacy copyright industries admitted in the late teens that they were pretty much done with copyright term extension and that, finally, Mickey Mouse might enter the public domain. 2019 was the first year in decades (thanks to the Sonny Bono Copyright Term Extension Act two decades earlier) that anything went into the public domain: works from 1923.
At the time, we launched our very first public domain game jam, Gaming Like It’s 1923. We’ve done one every year since then. Here are the 1924, 1925, 1926, and 1927 versions. But this year is the big one.
The very first Mickey Mouse short, Steamboat Willie, was released in 1928. Leaving aside that Steamboat Willie itself was a clear play on the film Steamboat Bill that also came out in 1928 and used the song Steamboat Bill from 1911, it’s pretty incredible that this one short from 1928 was the basis on which so much culture and content was locked up.
Until… just a few weeks from now. And, so we’re certainly expecting a few Mickey-themed games for the game jam this year, and we welcome them all.
Our friends over at Duke Center for the Study of the Public Domain have put together a nice guide to what it means for the 1928 Mickey to be in the public domain, which includes explanations of what you can and cannot do with Mickey. It includes a lovely graphical representation that you might like:
There are, of course, lots of other works entering the public domain on January 1st, and we’re always excited to see what interesting and unique works people find and remix for use in the submitted games. Copyright Lately has a good starter list for some of the many other works entering the public domain. It includes things like the Peter Pan play (which has a tricky copyright history as it was performed long before 1928, but not officially published until then).
We know that John Oliver got a bit of a head start on using Mickey Mouse a bit early, and as far as I know, Disney’s lawyers (for once!) actually sat on their hands and did nothing about it. But, on January 1st all of you will be able to use Mickey and lots of other newly public domain works, and we hope that you’ll try to come up with some games for our jam.
If you’re looking for inspiration, please check some of the earlier game jams, each of which have the various winners listed, and check out our spotlight posts for last year’s winners. And we look forward to what you’ll be creating this time, whether or not it includes some variation of Mickey. Head on over to the game jam page on Itch.io to sign up and see all the rules and details.
* As explained above, Mickey is only partially free, as new works must be based on the original Mickey, not later updates, and you have to make sure there are no trademark issues, such that anyone would think that your use was an official Disney offering.
Thank you for joining us for your latest lesson in how you don’t actually own the things you buy when you buy them digitally. Over a year ago, we discussed a story out of Germany and Austria where a deal expired between Sony and movie distributor StudioCanal, which resulted in 100s of movies being delisted and deleted, both from the PlayStation Store and from the PlayStations of those who bought them. Yup! People bought a thing, got a thing, and then had that thing clawed back from them once the licensing agreement wasn’t renewed. You can guess for yourself whether members of the public who “bought” these movies had any idea that them disappearing long after purchase was even a possibility, but don’t overthink it, you know the answer.
But maybe you thought, “Sucks for Germany, but that wouldn’t happen here in America.” Well, turns out it sucks for some of us, too, as the exact same thing happened here, only with shows and content produced by Discovery and purchased through the PlayStation Store.
The latest pothole in the road to an all-digital future was discovered via a warning Sony recently sent out to PlayStation users who purchased TV shows made by Discovery, the reality TV network that recently merged with Warner Bros. in one of the most brutal and idioticcorporate maneuvers of our time. “Due to our content licensing arrangements with content providers, you will no longer be able to watch any of your previously purchased Discovery content and the content will be removed from your video library,” read a copy of the email that was shared with Kotaku.
It linked to a page on the PlayStation website listing all of the shows impacted. As you might imagine, given Discovery’s penchant for pumping out seasons of relatively cheap to produce but popular reality TV and documentary-based shows, there are a lot of them. They include, but are not limited to, hits such as: Say Yes to the Dress, Shark Week, Cake Boss, Long Island Medium, Deadly Women, and many, many more.
And MythBusters, too, which feels like that show missed an opportunity to bust the myth that you own what you bought when you purchase something digitally. The reality is that there is no good way to actually retain these shows in cases like this. Some that “bought” Discovery content are freaking out, understandably.
“Is there a way I can save this content?” asked one panicked PlayStation user on Reddit. “I use PS4…But I have bought many seasons of shows such as Dual Survival that I do not wish to lose. I was actually under the impression since I owned it, I wouldn’t ever lose it…”
Whatever else is true, it’s obvious that platforms aren’t doing nearly enough to actually inform customers of what they’re buying, leasing, renting, whatever. It would be one thing if this content was ripped away and everyone on all sides realized that was a possibility. That just isn’t the case.
And just as in the Germany instance, there’s no chance that any of this comes with any refunds or givebacks. Well-meaning customers who paid money for this content simply don’t have it anymore. And it just isn’t like having a Netflix account or something like that, where the product catalogue is constantly in flux. It’s people who are buying a show, or the season of a show. But they’re really not. They’re renting it until some combination of Sony and the licensee decides they’re not.
If you’ve never watched it, Kirby Ferguson’s “Everything is a Remix” series (which was recently updated from the original version that came out years ago) is an excellent look at how stupid our copyright laws are, and how they have really warped our view of creativity. As the series makes clear, creativity is all about remixing: taking inspiration and bits and pieces from other parts of culture and remixing them into something entirely new. All creativity involves this in some manner or another. There is no truly unique creativity.
And yet, copyright law assumes the opposite is true. It assumes that most creativity is entirely unique, and when remix and inspiration get too close, the powerful hand of the law has to slap people down. As such, copyright is often anti-creative. It is designed to slap down those whose creativity reveals just a little too openly how the sausage is made.
Most often, the slapping down of creativity targets marginalized creators who don’t have the power to stand up and speak out. This is why the recording industry only seemed to really get worried about copyright law locking down entire styles of music once popular white artists started getting sued.
Of course, back in the 80s and 90s, when it was mostly black hip hop artists getting sued for sampling, there was much less concern outside of specific music communities, and we’d get ridiculous court rulings that refused to consider things like fair use at all.
It would have been nice if society had taken this issue seriously back then, recognized that “everything is a remix,” and that encouraging remixing and reusing the works of others to create something new and transformative was not just a good thing, but one that should be supported. If so, we might not be in the utter shitshow that is the debate over generative art from AI these days, in which many creators are rushing to AI to save them, even though that’s not what copyright was designed to do, nor is it a particularly useful tool in that context.
However, as we’ve explained, the legacy gatekeeper middlemen (whom copyright was designed to benefit over the actual creatives) have spent so many decades pushing propaganda and nonsense about how copyright was the only tool by which creatives could protect themselves (all while using that strengthened copyright to enrich the gatekeepers, while exploiting the creatives) that many people don’t quite realize how they’re playing into the hands of the biggest companies by demanding copyright come to the rescue.
I was thinking about all of this in reading a recent piece by musicologist Toni Aittoniemi, highlighting how AI art is also a form of remix, while similarly noting that if we had properly established that remixing to create art is not only legitimate, but basically a necessary piece of how culture works, that these debates wouldn’t be so fraught.
The moral panic is largely an epistemological crisis: We don’t have a socially acceptable status for the legibility of the remix as art-in-it’s-own-right. Instead of properly appreciating the remix and the art of the DJ, the remix, or the meme cultures, we have shoehorned all the cultural properties associated onto an 1800’s sheet music publishing -based model of artistic credibility. The fit was never really good, but no-one really cared because the scenes were small, underground and their breaking the rules was largely out-of-sight. In the case of Hip-Hop music, the issues of licensing beats were pushed into the background, while the rapper took the mantelpiece of ”the original artist”. Controversies with sampling were discussed as anomalies, from which culture largely rubber-banded back into the old model.
As Aittoniemi notes, perhaps this is a chance for us to correct the wrongs of what happened with copyright in the past few decades:
I concur that the AI art tools are simply resurfacing an old problem we left behind unresolved during the 1980’s to early 2000’s. Now it’s time for us to blow the dust off these old books and apply what was learned to the situation we have at our hands now.
We should not forget the modern electronic dance music industry has already developed models that promote new artists via remixes of their work from more established artists. These real-world examples combined with the theoretical frameworks above should help us to explore a refreshed model of artistic credibility, where value is assigned to both the original artists and the authors of remixers, who use their originals to tell a new story, fitting the particular life-story of the particular viewer. Like a deejay spins just the tracks you needed to hear at that particular night of your life at that particularly important moment, the value of the experience encapsulates both the original artform and it’s application to the particular context.
To fully appreciate and integrate AI art in our culture, we cannot rely only on our established models of artistry and credibility. From what was once only a fringe endeavor of collague or plunderphonics artists, mass production tools have forged a mainstream phenomenon. This is however, not our first contact with art like this, and we do have the theoretical frameworks available to form a new class of art, if we reach just a little further into the long corridors of university libraries and humanities departments for them.
From there, the suggestion is that rather that the focus should be on the transformation and how it adds value:
Art, especially popular forms of it, has always been a lot about transformation: Taking what exists and creating something that works in this particular context. In forms of art emphasizing the distinctiveness of the original less, transformation becomes the focus of the artform instead. In electronic dance music, the songs do sound good by themself but the complete artform only becomes visible when hundreds to thousands of people assemble together in a remote location and set up a festival. In the context of the festival’s (or a techno club’s for that matter) transformation function all the artforms meet and become more than the sum of their parts. And should we then assign the transformation function artistic value itself, we can also see that the festival itself is an artform that keeps repeating and transforming previous festivals to best fit to the current particular situation, and that the repetition of this process is the lifeblood of all the artforms that make it up in return.
The process above is healthy when the transformation function adds value.
There are a lot of questions about how that would actually work in practice, but I do think this is a useful framework for thinking about some of these questions, challenging some existing assumptions, and trying to rethink the system into one that is actually helping creators and helping to enable more art to be created, rather than trying to leverage a system originally developed to provide monopolies to gatekeepers into one that is actually beneficial to the public who want to experience art, and creators who wish to make art.
On Friday, the Internet Archive put up a blog post noting that its digital book lending program was likely to change as it continues to fight the book publishers’ efforts to kill the Internet Archive. As you’ll recall, all the big book publishers teamed up to sue the Internet Archive over its Open Library project, which was created based on a detailed approach, backed by librarians and copyright lawyers, to recreate an online digital library that matches a physical library. Unfortunately, back in March, the judge decided (just days after oral arguments) that everything about the Open Library infringes on copyrights. There were many, many problems with this ruling, and the Archive is appealing.
However, in the meantime, the judge in the district court needed to sort out the details of the injunction in terms of what activities the Archive would change during the appeal. The Internet Archive and the publishers negotiated over the terms of such an injunction and asked the court to weigh in on whether or not it also covers books for which there are no ebooks available at all. The Archive said it should only cover books where the publishers make an ebook available, while the publishers said it should cover all books, because of course they did. Given Judge Koeltl’s original ruling, I expected him to side with the publishers, and effectively shut down the Open Library. However, this morning he surprised me and sided with the Internet Archive, saying only books that are already available in electronic form need to be removed. That’s still a lot, but at least it means people can still access those other works electronically. The judge rightly noted that the injunction should be narrowly targeted towards the issues at play in the case, and thus it made sense to only block works available as ebooks.
But, also on Friday, the RIAA decided to step in and to try to kick the Internet Archive while it’s down. For years now, the Archive has offered up its Great 78 Project, in which the Archive, in coordination with some other library/archival projects (including the Archive of Contemporary Music and George Blood LP), has been digitizing whatever 78rpm records they could find.
78rpm records were some of the earliest musical recordings, and were produced from 1898 through the 1950s when they were replaced by 33 1/3rpm and 45rpm vinyl records. I remember that when I was growing up my grandparents had a record player that could still play 78s, and there were a few of those old 78s in a cabinet. Most of the 78s were not on vinyl, but shellac, and were fairly brittle, meaning that many old 78s are gone forever. As such there is tremendous value in preserving and protecting old 78s, which is also why many libraries have collections of them. It’s also why those various archival libraries decided to digitize and preserve them. Without such an effort, many of those 78s would disappear.
If you’ve ever gone through the Great78 project, you know quite well that it is, in no way, a substitute for music streaming services like Spotify or Apple Music. You get a static page in which you (1) see a photograph of the original 78 label, (2) get some information on that recording, and (3) are able to listen to and download just that song. Here’s a random example I pulled:
Also, when you listen to it, you can clearly hear that this was digitized straight off of the 78 itself, including all the crackle and hissing of the record. It is nothing like the carefully remastered versions you hear on music streaming services.
Indeed, I’ve used the Great78 Project to discover old songs I’d never heard before, leading me to search out those artists on Spotify to add to my playlists, meaning that for me, personally, the Great78 Project has almost certainly resulted in the big record labels making more money, as it added more artists for me to listen to through licensed systems.
It’s no secret that the recording industry had it out for the Great78 Project. Three years ago, we wrote about how Senator Thom Tillis (who has spent his tenure in the Senate pushing for whatever the legacy copyright industries want) seemed absolutely apoplectic when the Internet Archive bought a famous old record store in order to get access to the 78s to digitize, and Tillis thought that this attempt to preserve culture was shameful.
The lawsuit, joined by all of the big RIAA record labels, was filed by one of the RIAA’s favorite lawyers for destroying anything good that expands access to music: Matt Oppenheim. Matt was at the RIAA and helped destroy both Napster and Grokster. He was also the lawyer who helped create some terrible precedents holding ISPs liable for subscribers who download music, enabling even greater copyright trolling. Basically, if you’ve seen anything cool and innovative in the world of music over the last two decades, Oppenheim has been there to kill it.
And now he’s trying to kill the world’s greatest library.
Much of the actual lawsuit revolves around the Music Modernization Act, which was passed in 2018 and had some good parts in it, in particular in moving some pre-1972 sound recordings into the public domain. As you might also recall, prior to February of 1972, sound recordings did not get federal copyright protection (though they might get some form of state copyright). Indeed, in most of the first half of the 20th century, many copyright experts believed that federal copyright could not apply to sound recordings and that it could only apply to the composition. After February of 1972, sound recordings were granted federal copyright, but that left pre-1972 works in a weird state, in which they were often protected by an amalgamation of obsolete state laws, meaning that some works might not reach the public domain for well over a century. This was leading to real concerns that some of our earliest recordings would disappear forever.
The Music Modernization Act sought to deal with some of that, creating a process by which pre-1972 sound recordings would be shifted under federal copyright, and a clear process began to move some of the oldest ones into the public domain. It also created a process for dealing with old orphaned works, where the copyright holder could not be found. The Internet Archive celebrated all of this, and noted that it would be useful for some of its archival efforts.
The lawsuit accuses the Archive (and Brewster Kahle directly) of then ignoring the limitations and procedures in the Music Modernization Act to just continue digitizing and releasing all of the 78s it could find, including those by some well known artists whose works are available on streaming platforms and elsewhere. It also whines that the Archive often posts links to newly digitized Great78 records on ex-Twitter.
When the Music Modernization Act’s enactment made clear that unauthorized copying, streaming, and distributing pre-1972 sound recordings is infringing, Internet Archive made no changes to its activities. Internet Archive did not obtain authorization to use the recordings on the Great 78 Project website. It did not remove any recordings from public access. It did not slow the pace at which it made new recordings publicly available. It did not change its policies regarding which recordings it would make publicly available.
Internet Archive has not filed any notices of non-commercial use with the Copyright Office. Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities.
Internet Archive knew full well that the Music Modernization Act had made its activities illegal under Federal law. When the Music Modernization Act went into effect, Internet Archive posted about it on its blog. Jeff Kaplan, The Music Modernization Act is now law which means some pre-1972 music goes public, INTERNET ARCHIVE (Oct. 15, 2018), https://blog.archive.org/2018/10/15/the-music-modernization-act-is-now-law-which-means-some-music-goes-public/. The blog post stated that “the MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.” Id. (emphasis added). The blog post further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings. Unfortunately 108(h) is notoriously hard to implement.” Id. (emphasis added). Brewster Kahle tweeted a link to the blog post. Brewster Kahle (@brewster_kahle), TWITTER (Oct. 15, 2018 11:26 AM), https://twitter.com/brewster_kahle/status/1051856787312271361.
Kahle delivered a presentation at the Association for Recorded Sound Collection’s 2019 annual conference titled, “Music Modernization Act 2018. How it did not go wrong, and even went pretty right.” In the presentation, Kahle stated that, “We Get pre-1972 out-of-print to be ‘Library Public Domain’!”. The presentation shows that Kahle, and, by extension, Internet Archive and the Foundation, understood how the Music Modernization Act had changed federal law and was aware the Music Modernization Act had made it unlawful under federal law to reproduce, distribute, and publicly perform pre-1972 sound recordings.
Despite knowing that the Music Modernization Act made its conduct infringing under federal law, Internet Archive ignored the new law and plowed forward as if the Music Modernization Act had never been enacted.
There’s a lot in the complaint that you can read. It attacks Brewster Kahle personally, falsely claiming that Kahle “advocated against the copyright laws for years,” rather than the more accurate statement that Kahle has advocated against problematic copyright laws that lock down, hide, and destroy culture. The lawsuit even uses Kahle’s important, though unfortunately failed, Kahle v. Gonzalez lawsuit, which argued (compellingly, though unfortunately not to the 9th Circuit) that when Congress changed copyright law from opt-in copyright (in which you had to register anything to get a copyright) to “everything is automatically covered by copyright,” it changed the very nature of copyright law, and took it beyond the limits required under the Constitution. That was not an “anti-copyright” lawsuit. It was an “anti-massive expansion of copyright in a manner that harms culture” lawsuit.
It is entirely possible (perhaps even likely) that the RIAA will win this lawsuit. As Oppenheim knows well, the courts are often quite smitten with the idea that the giant record labels and publishers and movie studios “own” culture and can limit how the public experiences it.
But all this really does is demonstrate exactly how broken modern copyright law is. There is no sensible or rationale world in which an effort to preserve culture and make it available to people should be deemed a violation of the law. Especially when that culture is mostly works that the record labels themselves ignored for decades, allowing them to decay and disappear in many instances. To come back now, decades later, and try to kill off library preservation and archival efforts is just an insult to the way culture works.
It’s doubly stupid given that the RIAA, and Oppenheim in particular, spent years trying to block music from ever being available on the internet. It’s only now that the very internet they fought developed systems that have re-invigorated the bank accounts of the labels through streaming that the RIAA gets to pretend that of course it cares about music from the first half of the 20th century — music that it was happy to let decay and die off until just recently.
Whether or not the case is legally sound is one thing. Chances are the labels may win. But, on a moral level, everything about this is despicable. The Great78 project isn’t taking a dime away from artists or the labels. No one is listening to the those recordings as a replacement for licensed efforts. Again, if anything, it’s helping to rejuvenate interest in those old recordings for free.
And if this lawsuit succeeds, it could very well put the nail in the coffin of the Internet Archive, which is already in trouble due to the publishers’ lawsuit.
Over the last few years, the RIAA had sort of taken a step back from being the internet’s villain, but its instincts to kill off and spit on culture never went away.
Here we go again. It was only a month ago that Karl Bode wrote about Disney’s absolutely and totally cool process of removing a bunch of content from its Disney Plus streaming platform not because the content sucks and nobody liked it, but because it gets to play accounting tricks as to its assets in order to receive giant tax breaks. To some extent, a big media company prioritizing quarterly profit reports over providing customers value in its streaming platform is very much “Dog Bites Man” territory. However, it appears Disney isn’t particularly shy about taking this practice to absurd levels.
Crater is a Disney film that was released on Disney Plus in the ancient times of this past May, nearly two months ago. Despite that short lifespan, and what are apparently not terrible viewership numbers and reviews, Disney has already removed the movie from the platform and stuck it in the vaunted Disney vault.
The plan—and Disney hasn’t confirmed Crater was wiped for this, but why else would it be—works like this: media companies have learned that by removing TV shows and movies from their streaming platforms they can write down the value of their “content assets”, which in turn reduces their overall tax bill. It also reduces the licensing fees these companies are paying.
Until last week, the shows and movies being culled—at Disney and other studios—had included those released somewhat recently, but for whatever had underperformed vs expectations, like 2022’s Willow and Y: The Last Man (which I liked!). That was bad, but Disney’s decision to wipe Crater—released just seven weeks ago—is taking the piss.
Seven weeks. And it’s important to keep in mind that streaming services were supposed to be what put a major damper on film and show piracy. Here’s the thing though: streaming services don’t tamp down on piracy when providers refuse to stream things. Shocking, I know. Disney is as anti-piracy as it gets, of course, but it appears it has prioritized playing shell games with its books over providing the public with the content it wants in its own streaming service.
But now it’s just gone. There’s no way to legally view this film. It’s as though it never existed. One of the key selling points for streaming services was that they were going to eliminate piracy. Now here we are, just a few years later, and piracy is going to be the only way a ton of TV shows and movies are ever going to be saved.
This again points out how content providers aren’t keeping up with their end of the copyright bargain in far too many cases. Granting Disney copyright on this film only to have them refuse to make it available so shortly after release is as anathema to the point of copyright law as it gets.
A little over a year ago, we discussed Nintendo’s shutdown of the eShop for its 3DS and Wii U consoles. That shutdown ended up being delayed due to a metric ton of outcry from the gaming public, but that was only a stay of execution. In a matter of days, those shops will be discontinued, preventing anyone from purchasing any titles in those stores. Many of the titles that are original to those consoles are not available anywhere else. Nintendo has made some vague noises about them becoming available on modern consoles, but all of those plans live at the pleasure of Nintendo executives. Coupled with its extremely litigious nature on matters of intellectual property, that’s how you get to my nicknaming Nintendo as “the Disney of the video game industry.”
Preventing the gaming public from continuing to buy games that rely on a company-operated backend infrastructure is one thing. After all, Nintendo can do what it wants when it comes to putting its products into commerce. But what really annoyed a ton of people, myself included, was how this would impact archivists and historians, or anyone else interested in preserving video game history and culture. With the impending shutdown, some of those entities are once again expressing concern.
“While it’s unfortunate that people won’t be able to purchase digital 3DS or Wii U games anymore, we understand the business reality that went into this decision,” the Video Game History Foundation (VGHF) tweeted when the eShop shutdowns were announced a year ago. “What we don’t understand is what path Nintendo expects its fans to take, should they wish to play these games in the future.”
Yeah, if you’re concerned about preserving culture for the public, this is a big fucking deal. And you really do have to keep in mind that the entire bargain that is copyright law is designed around offering a limited amount of monopoly protection to content creators specifically so that the public gets access to more content. Because Nintendo is litigious, utilizes DRM, and the DMCA exists, all of that combines to make it wildly unsafe for museums and archivists to actually retain copies of these games that will shortly no longer be found anywhere else. And, no, the exemptions built into the DMCA for content such as movies and literature simply don’t exist for the video game space.
The US Copyright Office has issued exemptions to those rules to allow libraries and research institutions to make digital copies for archival purposes. Those organizations can even distribute archived digital copies of items like ebooks, DVDs, and even generic computer software to researchers through online access systems.
But those remote-access exemptions explicitly leave out video games. That means researchers who want to access archived game collections have to travel to the physical location where that archive resides—even if the archived games themselves were never distributed on physical media.
All of this was lobbied for by an industry that apparently has some kind of fear of these organizations creating online sites where anyone can go and play any archived game at any time, leading to the decimation, nay, destruction of the video game industry. Industry lobbyists have pointed to the Internet Archive’s emulated games collection, which — checks notes — , well, I guess that didn’t destroy the industry at all, so I’m not sure what point they’re trying to make.
In an effort to address this—or at least address it in a single place on as few consoles as possible—YouTuber The Completionist decided to sit down and spend almost a year of his life (328 days in total) buying his way through both libraries.
He’s now done, and the statistics are staggering. The dude bought 866 Wii U games and 1547 3DS titles, numbers that include DSiWare, Virtual Console releases and downloadable content. That adds up to 1.2TB of data for the Wii U, and 267GB for the 3DS. Or, for the 3DS purists reading, 2,136,689 blocks.
As part of this effort, The Completionist has said he plans to donate all of this digital media to the VGHF. What they can do with all of that content still remains to be seen. All of the same copyright and DMCA rules still apply, so what access it can grant to researchers, never mind the public, is in question.
But at least the content resides somewhere where it can be preserved for now. It just sure would be nice if the deal struck for copyright didn’t somehow leave one hobbyist having to spend tens of thousands of dollars to do the work that Nintendo should be doing alongside museums itself, if it had any actual interest in preserving the culture it helped create.