Back in June, we wrote about a ridiculously weak lawsuit from the big music publishers against exTwitter, claiming that the platform, mostly known for text, and which barely has any reasonable system for posting or listening to music, was a music piracy haven.
As we noted, the publishers’ lawsuit seemed misguided in multiple ways, beyond just the lack of facilities on exTwitter for music, but also because the entire lawsuit seems to ignore the nature of the DMCA or any number of previous cases that says that online platforms need to have specific, actual knowledge of infringing works, rather than generalized knowledge that “infringement is happening on my platform.”
exTwitter has now hit back in court (first reported by Torrentfreak), and is asking for the judge to toss out the lawsuit. My initial fear with this lawsuit is that exTwitter would blow it by hiring bad lawyers who don’t understand the nuances here, but at least that doesn’t seem to be the case so far. Elon appears to have turned it over to his favorite lawyer, Alex Spiro, and his colleagues at Quinn Emanuel. While I wouldn’t trust Spiro for any of this, QE actually does have some very strong lawyers on copyright who have won some big cases, so there’s some serious lawyering going on.
The preliminary statement lays out the details of what a joke this case is:
Plaintiffs fail to adequately allege direct infringement because the Complaint does not contend that X acted with the requisite “volitional” conduct. The law requires that direct infringement arise from active, knowing, non-automated conduct by a defendant—not from the passive, automated operations of a website. The Complaint contains no allegations of active, intentional conduct by X, or any X employee, related to the allegedly infringing user posts—an omission that is fatal to the claim.
The contributory infringement claim is similarly defective. The United States Supreme Court has held that where a company offers a product or service that has substantial non-infringing uses—as X’s service indisputably does—the copyright plaintiff must allege that the defendant took active steps with the intent of encouraging infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 937 (2005) (“Grokster”). In this case, Plaintiffs do not allege that X encouraged, induced, or took affirmative steps with the intent to foster the infringement of Plaintiffs’ works. To the contrary, X’s anti-infringement policies and practices, including its DMCA policy, belie any reasonable assumption that X has induced its users to infringe any copyrights. Even reading the Complaint in the light most favorable to Plaintiffs, no liability can be established on the facts as pleaded. As this Court appropriately recognized in a case with similar facts, this pleading defect requires dismissal of the contributory liability claim. See Eight Mile Style, LLC v. Spotify USA Inc., 535 F. Supp. 3d 738, 746 (M.D. Tenn. 2021).
Finally, Plaintiffs’ claim for vicarious liability fails as a matter of law because Plaintiffs do not allege that the ability to post infringing content to the X platform (in violation of the Terms of Service) is a draw to users sufficient to confer an “obvious and direct” financial benefit to X, or that X had the practical ability to supervise the alleged infringement. As such, the vicarious liability claim is also insufficiently pleaded and should be dismissed.
There’s a ridiculous amount of caselaw on exTwitter’s side on this one.
I still worry about how Elon, as a wild card, will tweet something ridiculous like “hey everyone, let’s start posting infringing songs here for the lulz” or whatever. But, barring that, exTwitter has a strong case here, and the publishers look even greedier than they normally do in filing this case.
Twitter is not a music platform, and even if Musk is gradually hoping to turn the platform into one, that should be dealt with when those plans become clear, rather than the flimsy theories filed in this lawsuit, which would get laughed out of any law school copyright law discussion.
Stephen Thaler has spent years trying, and almost always failing, to convince both patent and copyright bodies to give him patents and copyrights on works he says are created by AI systems he’s built.
His latest attempt was to sue the Copyright Office and the Register of Copyrights, Shira Perlmutter, over his attempt to get copyright on AI created works. It did not work. Judge Beryl Howell, a former RIAA lobbyist who often does seem willing to go to bat for expanding the boundaries of copyright law, wouldn’t go as far as Thaler wanted, and said pretty clearly that AI-created works are not subject to copyright protection.
As the court explains, Thaler tried to jump multiple steps in arguing for why the copyright on a computer generated work should be assigned to himself as the computer owner. But, the Judge points out, that question is only worth exploring if there’s a legitimate copyright in the first place:
Plaintiff attempts to complicate the issues presented by devoting a substantial portion of his briefing to the viability of various legal theories under which a copyright in the computer’s work would transfer to him, as the computer’s owner; for example, by operation of common law property principles or the work-for-hire doctrine. See Pl.’s Mem. at 31–37; Pl.’s Reply Supp. Mot. Summ. J. & Opp’n Def.’s Cross-Mot. Summ. J. (“Pl.’s Opp’n”) at 11–15, ECF No. 18. These arguments concern to whom a valid copyright should have been registered, and in so doing put the cart before the horse. By denying registration, the Register concluded that no valid copyright had ever existed in a work generated absent human involvement, leaving nothing at all to register and thus no question as to whom that registration belonged.
Judge Howell details, as Thaler argued, that copyright law has changed over time as new developments in creativity have developed, but notes this goes too far:
Copyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright.
That principle follows from the plain text of the Copyright Act. The current incarnation of the copyright law, the Copyright Act of 1976, provides copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium must be done “by or under the authority of the author.” Id. § 101. In order to be eligible for copyright, then, a work must have an “author.”
From there, the discussion mostly follows along with the same discussion that we had over the monkey selfie. Basically, there’s nothing that says that non-humans are covered by copyright law. Because that wouldn’t make any sense at all.
The understanding that “authorship” is synonymous with human creation has persisted even as the copyright law has otherwise evolved. The immediate precursor to the modern copyright law—the Copyright Act of 1909—explicitly provided that only a “person” could “secure copyright for his work” under the Act. Act of Mar. 4, 1909, ch. 320, §§ 9, 10, 35 Stat. 1075, 1077. Copyright under the 1909 Act was thus unambiguously limited to the works of human creators. There is absolutely no indication that Congress intended to effect any change to this longstanding requirement with the modern incarnation of the copyright law. To the contrary, the relevant congressional report indicates that in enacting the 1976 Act, Congress intended to incorporate the “original work of authorship” standard “without change” from the previous 1909 Act. See H.R. REP. NO. 94-1476, at 51 (1976)
The human authorship requirement has also been consistently recognized by the Supreme Court when called upon to interpret the copyright law. As already noted, in Sarony, the Court’s recognition of the copyrightability of a photograph rested on the fact that the human creator, not the camera, conceived of and designed the image and then used the camera to capture the image. See Sarony, 111 U.S. at 60. The photograph was “the product of [the photographer’s] intellectual invention,” and given “the nature of authorship,” was deemed “an original work of art . . . of which [the photographer] is the author.” Id. at 60–61. Similarly, in Mazer v. Stein, the Court delineated a prerequisite for copyrightability to be that a work “must be original, that is, the author’s tangible expression of his ideas.” 347 U.S. 201, 214 (1954). Goldstein v. California, too, defines “author” as “an ‘originator,’ ‘he to whom anything owes its origin,’” 412 U.S. at 561 (quoting Sarony, 111 U.S. at 58). In all these cases, authorship centers on acts of human creativity.
The judge says that AI can create “challenges” to the copyright system, but that’s not an issue for the courts to work out. Therefore, the court says, all of Thaler’s arguments about assigning the copyright to himself are moot, as there was no copyright in the first place.
Given that the work at issue did not give rise to a valid copyright upon its creation, plaintiff’s myriad theories for how ownership of such a copyright could have passed to him need not be further addressed. Common law doctrines of property transfer cannot be implicated where no property right exists to transfer in the first instance. The work-for-hire provisions of the Copyright Act, too, presuppose that an interest exists to be claimed. See 17 U.S.C § 201(b) (“In the case of a work made for hire, the employer . . . owns all of the rights comprised in the copyright.”). Here, the image autonomously generated by plaintiff’s computer system was never eligible for copyright, so none of the doctrines invoked by plaintiff conjure up a copyright over which ownership may be claimed.
And thus, we have yet another loss on the books for Thaler and another win for the belief that AI created works are not subject to copyright (or patents).
So, yesterday we had the story of how, at Elon’s personal request, exTwitter is moving to get rid of link and snippet text in what had been known as Twitter Cards for news organizations. Musk claims that it’s for “esthetic” reasons, though in our article, we noted the uncanny timing of this decision coming just a few weeks after the French news agency AFP had sued exTwitter in France, claiming that the snippets violate France’s neighboring rights law.
As we discussed both the law and this lawsuit are incredibly stupid. Even if we accept that France has this law, the lawsuit still makes no sense. If AFP doesn’t want snippets to appear on exTwitter IT SHOULD NEVER HAVE SET UP TWITTER CARDS for its site. But it did. So, AFP is suing exTwitter for something that AFP itself setup. It’s incredibly stupid.
So stupid that one would hope that Elon Musk and his “hardcore street fighter litigation” team would fight it. When Musk announced this “hardcore” litigation team, he made some promises that he has regularly failed to keep, including that his litigation team “will never surrender/settle an unjust case against us, even if we will probably lose.”
So, look, the AFP lawsuit is completely unjust. Even if ignoring how stupid France’s neighboring rights law is, AFP shouldn’t get away for suing exTwitter for actions that AFP themselves setup by enabling the Twitter cards.
Musk’s decision to scrap headlines and texts is “not surprising,” Emmanuel Parody, secretary-general of content providers lobby GESTE, told POLITICO. By doing so, the online platform effectively “removes the last things” that would have ensured it’s covered by the copyright rules.
But… that makes no sense. First off, even with the coincidental timing of the AFP lawsuit and then the removal of snippets, I’m still not convinced Musk would completely ditch all snippets globally, just because of a stupid French law (other countries implementing similar neighboring rights laws are generally basing it on the links themselves, rather than the snippets).
And, if Musk was doing it to avoid the French snippet tax, he should straight up say that, because (like Meta and Google are doing in Canada) it helps let the public know what stupid corrupt laws politicians are passing to create a system to funnel money from successful internet companies to lazy, failed, media publishers.
Also, if it is for that reason, then it goes against Musk’s promise to use his lawyers such that they would “never surrender… an unjust case” because this is the ultimate surrender. Fight the case. Highlight how stupid these neighboring rights laws are in general. But, even better, highlight how particularly stupid the AFP case is because the only reason AFP snippets show on Twitter is because AFP set them up to show.
Well, that was quick. We had just been discussing the encouraging news that Rockstar had scooped up Cfx.re, a community dedicated to roleplaying within GTA and Red Dead Redemption games, as well as several mods made within that community. The only thing that made this newsworthy at all is that Rockstar has had an awful reputation when it comes to modding communities for its games. In that post, I highlighted the welcome change of the embrace of these mods and wondered aloud if this meant there had been a culture shift at Rockstar towards embracing more of these communities.
Commenters warned me that that was unlikely to be true. Well, it appears you win, commenters, because just days later Rockstar is disappearing another very cool and useful looking mod that serves only to make its game more attractive, especially this far into the sales cycle.
In case you thought Rockstar Games’ acquisition of Grand Theft Auto V creator group Cfx.re meant a brave new era for open modding in the hit open-world game, don’t worry, publisher Take-Two is still going after fan projects it doesn’t like. Case in point is its recent sacking of a mod called Sentient Streets, which used AI technology to generate NPC conversation dialogue on the fly. Take-Two had the mod scoured from both YouTube and NexusMods, leaving its creator confused and discouraged.
The Sentient Streets mod, which was previously covered by a number of sites like IGN and Eurogamer, had a story that revolved around an AI-worshiping death cult and NPCs whose dialogue was randomly generated by a tool called the Inworld Character Engine. YouTube user Bloc, who created the GTA V mod, said a video showing it off had over 100,000 views before it was removed, while the mod itself had apparently been downloaded over 3,000 times before NexusMods, where it was hosted, took it down.
As the post goes on to note, part of the issue here might be the use of a third-party platform called Inworld Character Engine, which populates the dialogue randomly generated by the mod with AI-generated dialogue built off of samples and audio the makers of that engine paid for. There is a chance that part of the concern is over whether Rockstar could find itself in some legal quagmire as a result of not policing this mod into oblivion.
But I doubt it. Rockstar’s reputation towards mods generally makes the case for Occam’s Razor. The least complicated explanation for this is that Rockstar is just Rockstar-ing. Which ultimately just sucks for Rockstar’s modding communities, most of which are made up of folks who are huge fans of the company’s games.
“Knowing that large corporations can issue strikes based on arbitrary reasons, which can cause your work to go in vain in moments, is also discouraging to say the least,” Bloc wrote in their post.
A few weeks ago, the NY Times published a very nice profile piece about me, which starts off with the story of how I recently got pulled into a group chat with a bunch of Hollywood writers, directors, and actors, who were trying to understand how to deal with the rise of generative AI tools. The article recounted how my basic message was that most of the legal routes they were considering weren’t likely to be all that effective — especially thinking copyright will save them — but noting that they should be looking to look for ways to embrace the AI and do more with it themselves.
It would appear that the NY Times itself is apparently going in the other direction. According to Bobby Allyn at NPR, the NY Times is considering legal action against OpenAI, claiming that training its models on NY Times content violated the NY Times copyright.
Lawyers for the newspaper are exploring whether to sue OpenAI to protect the intellectual property rights associated with its reporting, according to two people with direct knowledge of the discussions.
For weeks, The Times and the maker of ChatGPT have been locked in tense negotiations over reaching a licensing deal in which OpenAI would pay The Times for incorporating its stories in the tech company’s AI tools, but the discussions have become so contentious that the paper is now considering legal action.
This seems like complete nonsense. We’ve already highlighted how the batch of existing lawsuits in which copyright holders try to sue LLMs for training off their data are likely to fail. But this lawsuit in particular sounds wildly stupid:
A top concern for The Times is that ChatGPT is, in a sense, becoming a direct competitor with the paper by creating text that answers questions based on the original reporting and writing of the paper’s staff.
Lol, wut? I mean, the NY Times is considered the top newspaper in the whole damn world, despite tons of competitors, and now it’s scared of a bot that is famous for mid-level prose and making shit up? None of that makes sense.
If, when someone searches online, they are served a paragraph-long answer from an AI tool that refashions reporting from The Times, the need to visit the publisher’s website is greatly diminished, said one person involved in the talks.
Again, that makes no sense. There are plenty of services out there that already summarize NYT articles and that doesn’t violate copyright, because summarizing reporting is clearly fair use. There’s no real “hot news” doctrine any more.
And, more to the point, if the NY Times is really that scared of ChatGPT, then it seems the NYT’s lawyers and execs don’t think too highly of all those reporters it has on staff.
Elsewhere, the Verge reports that the NY Times changed its terms to “ban” AI tools from training on its articles:
… the NYT updated its Terms of Service on August 3rd to prohibit its content — inclusive of text, photographs, images, audio/video clips, “look and feel,” metadata, or compilations — from being used in the development of “any software program, including, but not limited to, training a machine learning or artificial intelligence (AI) system.”
Though, it really sounds like this is more of the NY Times trying to set a trap for OpenAI so it has something to sue over, because the Verge also notes the following:
Despite introducing the new rules to its policy, the publication doesn’t appear to have made any changes to its robots.txt — the file that informs search engine crawlers which URLs can be accessed.
OpenAI respects robots.txt. If you truly don’t want your content scanned, you put a notation in robots.txt, which takes about 10 seconds tops. If, however, you want to lay a trap so that you can sue OpenAI, then you quietly changes your terms of service, but do nothing to mitigate the “problem” of OpenAI scraping, even though you have all the power in your hands.
There’s another thing that happened recently in this space, as highlighted by Semafor: the NY Times recently dropped out of a coalition of news orgs trying to demand cash from AI companies.
The New York Times has decided not to join a group of media companies attempting to jointly negotiate with the major tech companies over use of their content to power artificial intelligence.
Again, all of this seems very, very silly. If you don’t want AI to train on what you publish, use robots.txt. But AI training on content on the web should never be considered copyright infringing. Again, scanning the web has to be fair use, otherwise we no longer have search engines or a variety of other important tools that all rely on scanning.
I get that legacy news orgs have had a rough time embracing new technology and keep trying to use the law to beat back the tide. But, sooner or later you have to realize that this is just the wrong way to go about everything.
When will the legacy entertainment industry get it through their thick skulls that recording content is legal. We’ve done this. We’ve done it at the highest level. Tools that have substantial non-infringing uses are legal.
Well, at least in the US.
Which explains why the legacy companies often go overseas to do their dirty work. And that’s the case here.
For a while now, the recording industry has been absolutely furious that it was possible to download YouTube videos, with their ire directed mainly at one tool that enables such downloads, youtube-dl, a command line video downloader, that is also a plugin component for other download tools. It’s a useful tool. Journalists use it all the time. I have used it multiple times myself, most often when I’m trying to generate a transcript of a YouTube video, and the transcript tool I use requires an upload file.
It has, as the Supreme Court notes, substantial non-infringing uses.
But, of course, the RIAA never gives up its quixotic efforts to attack the open internet. So, it went to Germany, where copyright law is pretty consistently stupid. Sony Music, Warner Music, and Universal Music went after the hosting company, Uberspace, who was hosting the youtube-dl webpage in Germany.
Using the European equivalent of their argument in the US that failed (here it was that the code violated Section 1201 of the DMCA that forbids “circumvention” technologies), a German court sided with the labels back in April, but the site remained online until just recently, when, as TorrentFreak notes, the labels put up a bond that allowed for the enforcement of the original order, even while Uberspace appealed the ruling.
The ruling was published in March but Uberspace wasn’t required to take action right away. The hosting company decided to appeal, which meant that the youtube-dl.org site remained online, unless the music companies posted a €20,000 bond.
Initially, it didn’t appear that the labels would enforce the order, but that changed a few days ago. The plaintiffs informed Uberspace that they had posted the security, leaving the company no other choice than to take the site offline.
Torrentfreak spoke to Uberspace’s owner, Jonas Pasche, who seems (quite understandably) pissed off about this, but noted that his hands were legally tied:
“I received that information from the plaintiff’s side on July 27, with proof that they did the security deposit at a bank. So I no longer have a choice but to follow the judgment. Otherwise, I would face a fine of €250,000 or jail time,” Pasche notes.
The appeals fight continues in the meantime:
Uberspace will continue the legal battle and is prepared to fight the order up to the highest court possible. If the appeal is successful, Pasche will gladly unblock the site.
“We are confident that a higher court will overturn the judgment of the Hamburg Regional Court, so we will be able to unblock the site as soon as this happens,” he says.
All of this is basically just the major record labels being a fucking nuisance. The (again, perfectly useful for non-infringing purposes) youtube-dl code is still on GitHub where it can be downloaded. And, even if the labels somehow managed to kill youtube-dl, people would figure out other ways to download video content. It’s not going to stop piracy. And, really, at a time when the record labels are making record revenue thanks to the internet, maybe they could lighten up a bit on this infatuation with trying to make everything suck just because some tools might be used for infringing uses in some cases.
Get over it. Some people are going to infringe. If the industry and its lawyers spent like 20% of the time and effort they currently spend on “anti-piracy” efforts on just providing better content in more convenient ways to eager music fans, they’d do so much better.
But the whole industry has built up this stupid faith-based belief that “piracy” is the problem, rather than their failure to better serve their customers.
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.
This is and will keep happening. As complicated a landscape as copyright law is, the idea of automating the policing of copyright infringement without creating all kinds of collateral damage is simply absurd. Our pages are absolutely brimming with example after example of all kinds of entities issuing copyright claims and strikes on all kinds of platforms in error, with the blame always being laid at the feet of the copyright “bots” that screwed up. Apparently the wider world is okay with this kind of collateral damage clown show, since it sure doesn’t appear to be changing.
The most recent example comes to us courtesy of the Guinness World Records company, which hit at least two YouTubers with copyright strikes for having the phrase “World Record” on their videos. The first to note this publicly was a YouTuber going by “Ducky.”
Ducky wasn’t alone.
Ducky wasn’t the only big-name YouTuber to get hit with a copyright strike from the company, either. LazarBeam, one of the most iconic Fortnite content creators on the internet, revealed just a couple of days after Ducky’s tweet that he had also been hit with a copyright strike.
“Guinness world records making the psychopathic decision to strike YouTube videos that mention ‘world record’ or use their logo in thumbnails. Video was 5 years old with 26 million views,” he said.
Now, here’s where I’ll give the Guinness folks some props. The company responded to Ducky fairly quickly and admitted that the strike was issued in error due to, you guessed it, an automated copyright bot. Ducky got the strike removed fairly quickly as well. There hasn’t been public acknowledgement that the company reached out in the same fashion to LazarBeam as well, but I imagine it has or is willing to, given how it handled Ducky.
But this simply isn’t good enough. It isn’t enough that these companies fix their mistakes shortly after the copyright gun goes off. First off, not every company is as responsive and honest about this stuff as the Guinness people. And even if they were, we have pages and pages of real world examples of these bots not working. And we’re doing nothing about it.
We would simply not put up with this kind of knock-on fallout in most other situations in our society. Why are we putting it up with it in the name of copyright?
If you go take a look at all the different posts we’ve done on the topic of Pokémon, you will be left with one undeniable conclusion: the people behind Pokémon content take IP rights very seriously. This has particularly been true when it comes to some of the franchise’s most dedicated fans trying to express their fandom by creating cool things. Ownership is everything here and the Pokémon people will simply not countenance anyone using its creation, because that’s wrong.
It appears that the Pokémon people don’t have any problem with using some of that same fan content without credit in reverse, however. A trailer recently came out for some Pokémon DLC and fans noticed the inclusion of a fan arrangement of music right away.
Fans are expressing their concerns after The Pokémon Company seemingly used fan-created music in a recent trailer for the Pokémon Scarlet & Violet DLC, The Hidden Treasure of Area Zero. The uproar began shortly after today’s Pokémon Presents wrapped up. While many tuned in for updates on things like Detective Pikachu Returns and the aforementioned add-on content, musician NightDefined (a.k.a. ND) noticed that some of the footage featured music they created. In many cases, it might be an honor for a fan to see their Pokemon fan music creation used by a company they admire, but for ND, it was also a surprise.
While it does appear that ND’s song was a different arrangement of existing Pokemon music, that still doesn’t mean Pokemon automatically gets control over it. Still, while the artist pointed out that they had not received any credit for their work, they also expressed that they were honored that it was used.
But that’s not really the point. ND Music did mention that they would have appreciated being asked or informed, never mind credited, if the Pokémon Company wanted to use their music in a trailer. After all, ND Music certainly credited everyone properly when the music was originally uploaded.
ND says The Pokémon Company included the music in its trailer without their permission, with no credit to be found. It’s worth noting the musician’s original upload does give credit to Nintendo, developer Game Freak, Creatures Inc., and The Pokémon Company, as well as composers Go Ichinose and Toby Fox, but the uncredited use of ND’s specific arrangement in the trailer remains perplexing.
No it doesn’t. This is all about myopic control. The Pokémon Company controls all the things when it comes to Pokémon. It didn’t credit ND for the music because the music is theirs, in its view.
In a well-intentioned yet dangerous move to fight online fraud, France is on the verge of forcing browsers to create a dystopian technical capability. Article 6 (para II and III) of the SREN Bill would force browser providers to create the means to mandatorily block websites present on a government provided list.
The post explains why this is an extremely dangerous approach:
A world in which browsers can be forced to incorporate a list of banned websites at the software-level that simply do not open, either in a region or globally, is a worrying prospect that raises serious concerns around freedom of expression. If it successfully passes into law, the precedent this would set would make it much harder for browsers to reject such requests from other governments.
If a capability to block any site on a government blacklist were required by law to be built in to all browsers, then repressive governments would be given an enormously powerful tool. There would be no way around that censorship, short of hacking the browser code. That might be an option for open source coders, but it certainly won’t be for the vast majority of ordinary users. As the Mozilla post points out:
Such a move will overturn decades of established content moderation norms and provide a playbook for authoritarian governments that will easily negate the existence of censorship circumvention tools.
It is even worse than that. If such a capability to block any site were built in to browsers, it’s not just authoritarian governments that would be rubbing their hands with glee: the copyright industry would doubtless push for allegedly infringing sites to be included on the block list too. We know this, because it has already done it in the past, as discussed in Walled Culture the book (free digital versions).
Not many people now remember, but in 2004, BT (British Telecom) caused something of a storm when it created CleanFeed:
British Telecom has taken the unprecedented step of blocking all illegal child pornography websites in a crackdown on abuse online. The decision by Britain’s largest high-speed internet provider will lead to the first mass censorship of the web attempted in a Western democracy.
Here’s how it worked:
Subscribers to British Telecom’s internet services such as BTYahoo and BTInternet who attempt to access illegal sites will receive an error message as if the page was unavailable. BT will register the number of attempts but will not be able to record details of those accessing the sites.
The key justification for what the Guardian called “the first mass censorship of the web attempted in a Western democracy” was that it only blocked illegal child sexual abuse material Web sites. It was therefore an extreme situation requiring an exceptional solution. But seven years later, the copyright industry were able to convince a High Court judge to ignore that justification, and to take advantage of CleanFeed to block a site, Newzbin 2, that had nothing to do with child sexual abuse material, and therefore did not require exceptional solutions:
Justice Arnold ruled that BT must use its blocking technology CleanFeed – which is currently used to prevent access to websites featuring child sexual abuse – to block Newzbin 2.
Exactly the logic used by copyright companies to subvert CleanFeed could be used to co-opt the censorship capabilities of browsers with built-in Web blocking lists. As with CleanFeed, the copyright industry would doubtless argue that since the technology already exists, why not to apply it to tackling copyright infringement too?
That very real threat is another reason to fight this pernicious, misguided French proposal. Because if it is implemented, it will be very hard to stop it becoming yet another technology that the copyright world demands should be bent to its own selfish purposes.
