Falling Through the Cracks in YouTube’s Copyright System

Over the last few months, I have become increasingly aware of a fatal flaw in YouTube’s copyright enforcement regime, which frequently leaves non-infringing videos blocked for supposed copyright reasons with literally no recourse for the user and no way to dispute the copyright block.

YouTube’s copyright policies are confusing enough to begin with, as unlike most other video sharing sites, YouTube has not one but TWO overlapping copyright enforcement systems–it’s automated Content ID system, and the regular DMCA takedown regime that all content hosting sites are required to follow by the Digital Millennium Copyright Act.

Videos can be blocked/taken down by either system, and each system has its own process for filing a dispute.  If a video is subject to a DMCA takedown notice (which must meet standards established by law), it shows up in your account as “rejected for copyright infringement,” and there will also be a strike placed against your account, which will cause your account to be terminated upon the third strike. If your video makes fair use of the copyrighted content in question or the claim is false, you can file a DMCA counter-notification (also specified by law), and your video will be restored after a waiting period of approximately three weeks.

If a video is identified by YouTube’s automated, media fingerprinting “Content ID” system as containing content by a copyright owner enrolled in the Content ID program, several things can happen. The video can remain viewable, but “monetized,” meaning adds will show next to it; it can be blocked entirely (either worldwide or in selected countries), or in the case of audio-only matches, the sound can be muted. These videos show up on your “My Videos” page as having “matched third party content.” Because this is all done by computer and no form of DMCA takedown notice has been sent, videos blocked in this manner do not cause a strike to accrue against your account. If you want to dispute a Content ID block, there is an easy dispute form which you can fill out, which in most cases will cause the video to be automatically and immediately restored, though it does send a notice of your dispute to the copyright owner.

Here’s where things get tricky, since the copyright owner then has the opportunity to respond to your dispute. Often they will simply ignore it, and after a few months the “View Copyright Info” page for that video will display a message saying “dispute successful” and the content match will soon disappear entirely. On the other hand, what happens if the copyright owner still believes the material is infringing? According to YouTube, this is what is supposed to happen:

If you feel your video has been misidentified by the Content ID system, you can dispute the identification. This involves filling out a short form listing the reason for your dispute. We then notify the content owner whose reference material was matched. The content owner will then review the match. If the content owner disagrees with your dispute for any reason, they will have the option to submit a copyright takedown notice which will result in the disabling of your video and/or penalties against your account. To avoid penalization, only submit legitimate dispute claims.

In other words, if the copyright claimant does not accept your dispute, they have the option of escalating to a formal DMCA takedown notice, in which case YouTube’s other copyright enforcement system kicks in, the video would be taken down again, and a strike would be issued against your account. The user would then have the right to dispute a second time using a DMCA counter-notice, and have the video restored once again. According to the DMCA, this is where the process ends, since only if the copyright claimant notifies the service provider that they intent to file a lawsuit seeking an injunction against your video can the service provider leave it offline. Otherwise they are supposed to restore it after the waiting period established by law.

This is how the copyright dispute process on YouTube is supposed to work: Content ID match (video blocked) -> Content ID dispute (video restored) -> DMCA notice (video re-blocked) -> DMCA counter-notice ->(video restored unless notice of lawsuit given). This is not how it works practice however.

Sometime in the last couple years, YouTube has quietly started acting in a different way, contrary to their stated policy. Instead of requiring copyright owners to file a formal DMCA notice in response to a Content ID dispute, thus allowing users to invoke the DMCA counter-notice process, YouTube allows copyright owners to somehow “confirm” their copyright claim through the Convent ID system and re-impose whatever blocks were originally in place through Content ID. In this case, a message will appear on the user’s “View Copyright Info” page for that video saying, “All content owners have reviewed your video and confirmed their claims to some or all of its content.” After this, as far as I can tell, there is absolutely no way for the user to file a dispute and get their video restored.

I had been hearing reports about this happening for months. Because of my website, fairusetube.org and the video tutorials I have posted on YouTube regarding fair use and the Content ID dispute process, people have been posting comments and sending me messages about this for a while. But until last week, it had not actually happened to me (at least where the video was blocked in the U.S. where fair use applies). Then last week, I noticed one of my older anime music videos was blocked pretty much everywhere, including the U.S., by Content ID. I filed a dispute as I have many other times, and the video was unblocked for a few days, and then re-blocked with the message above. No further Content ID dispute was possible, because the record of my original dispute was still there. And when I tried filing a DMCA counter-notice (I tried twice, using both YouTube’s counter-notice webform and a counter-notice emailed to copyright@youtube.com), all I got was an automated response essentially telling me this is a Content ID issue not a DMCA issue. Other emails I have sent about this to YouTube’s copyright support address have gone unanswered.

So I’m stuck. My Content ID dispute was rejected, but in a manner other than a DMCA takedown notice, so I am not allowed to take advantage of the DMCA counter-notice process. It appears there truly is no recourse for this situation. My video is blocked, and there is simply no process to file a further dispute and get my video restored again. Contrary to both the takedown process established by law and YouTube’s own stated policy, the condition at the end of the process is that the user’s video remains blocked, rather than remaining up unless notice is given of pending legal action over the video.

This situation is frankly outrageous. It was bad enough when YouTube created the Content ID system in the first place, imposing automated blocks on videos with no regard for fair use. It is even worse now that this system apparently has no effective means of dispute, since whenever a copyright owner chooses to “confirm” their claim (as anecdotal evidence suggests they are doing with increasing frequency), there is nothing users can do to fight it. They are literally stuck in a gap between YouTube’s two competing copyright systems–a black hole which YouTube does not acknowledge even exists, and which, to my knowledge, no one else has ever addressed either. Something must be done about this, since until YouTube’s policy in this situation changes, many videos that are perfectly legal and non-infringing will continue to be unjustly blocked by Content ID with no recourse.

Book Review: “Reclaiming Fair Use” by Patricia Aufderheide and Peter Jaszi

Earlier this summer, I made the winning video for Public Knowledge’s video contest to create a response to YouTube’s “Copyright School” video, which made only a token mention of the crucial exception in copyright law for “fair use” and portrayed fair use as being too complicated for ordinary YouTube users to understand. Public Knowledge challenged the online video community to create a video presenting a more balanced view of fair use, and my video, “Fair Use School: The Rest of the Copyright Story,” ended up winning that contest and even received a bit of news coverage, such as in this TechDirt article.

Soon after my video was announced the winner of Public Knowledge’s contest, I was contacted by Patricia Aufderheide of American University, who is also the director of the Center for Social Media. She graciously offered to send me a copy of the new book she recently coauthored with Peter Jaszi, called Reclaiming Fair Use. I have spent the last few days reading the book while on vacation in Washington state and British Columbia (my family thinks I’m crazy for reading about copyright law on vacation), and enjoyed it immensely.

Overall, I found this book to be an excellent resource on the current state of fair use law in the U.S., complete with succinct analysis of changing judicial views becoming friendlier to fair use, and valuable strategic insights for those involved in the copyright reform movement. The basic thesis of Reclaiming Fair Use is that, far from being a dead letter or uselessly vague concept, fair use today is alive and well; and the more people insist on exercising their rights under fair use, the better they can shape the practices which will ultimately come to define fair use for their communities.

The book starts out with a brief recapitulation of the many flaws of our current copyright system, which should be familiar to most people concerned with this subject. Copyright today lasts longer than ever, is broader than ever, and actually licensing copyrighted content for new uses is more difficult than ever. This has resulted in a significant chilling effect on the creation of new cultural works, as ignorance about fair use rights and fear of copyright lawsuits have kept many from creating as freely as they might otherwise have done.

The authors then give a detailed history of the fair use doctrine, from its origin in the 1800s, through its codification in 1976, up through the present day. Even though fair use went through a brief period of decline in which it was marginalized by a law-and-economics approach to considering whether a new use competed with the market for the original, judges have more recently recognized “transformativeness” as the key element of fair use analysis. If copyrighted content is put to a new use that adds new meaning, message, or purpose rather than merely superseding the original, courts today are much more likely to find fair use, even if the new use could conceivably compete with some market for licensing the original material.

While I found the history of the fair use doctrine and current judicial interpretation enlightening (I did not previously know that courts now consider transformativeness to be more important than economic impact), the part of the book I found most fascinating was its insights on the strategy of the broader copyright reform movement. The authors argue that copyright reform advocates were far too quick to concede that fair use is too vague and nebulous a concept to be of any real use to those wishing to put copyrighted content to new and transformative uses. Instead, scholars like Lawrence Lessig and others began advocating either for radical changes to the copyright system that are unlikely to ever happen, or for alternatives to traditional copyright such as Creative Commons.

Aufderheide and Jaszi argue that it was a mistake to concede so much ground to content owners, such that many copyright reformers had effectively given up on fair use. As Peter Jenkins once wrote in response to the quick dismissal of fair use by copyright reform advocates, “with friends like these, who needs enemies?” Rather than giving up on fair use and allowing it to atrophy, we should rather be aggressive in asserting our rights to make fair use of copyrighted content.

Fair use was deliberately designed to be a flexible concept, very much tied to contemporary practice and community norms. Aufderheide and Jaszi argue that it is up to fair users themselves—not their lawyers or their gatekeepers—to define for themselves what fair use means for their community. One of the best ways to do this is by developing “codes of best practices,” which set forth standards for what is believed and accepted to be fair use by a given community, be they documentary filmmakers or media studies teachers. The authors then go on to cite a number of encouraging examples of how these codes of best practices have helped empower several creative communities to throw off the shackles of unnecessary licensing and fear of copyright lawsuits and begin making fair use of copyrighted content in ways they previously considered impossible.

Personally, I found the authors’ insights into the strategy of the copyright reform very enlightening, and was encouraged by the work they have been doing promoting codes of best practices in fair use. I too have previously noted how easily many copyright reformists have given up on fair use as having any practical value. One of the most important things I learned through competing in policy debate in high school and college was the concept of “ground” in a debate, where the side that most aggressively seizes ground in the early stages of a debate and successfully holds onto it usually wins.

When viewed in this way, it was indeed a grave tactical error for the copyright reform community to concede fair use early on, as it has only made it much more difficult for us to retake that ground and begin restoring utility to the fair use doctrine. I was glad to read of the many successes the Center for Social Media has had promoting its codes of best practices in several key creative communities. I wholeheartedly agree with the authors that the best way to fight against overly restrictive copyright laws is by boldly asserting our rights under fair use whenever possible.

One thing I disagree with the book on, however, is that I don’t think codes of best practices will always necessarily be the best way to do this. While codes of best practices may work great in professional communities such as documentary filmmakers and media teachers, they are much less useful in creative communities that do not have any well-defined structure or representative organizations. This is particularly true in the amateur online video community. While I admire the Center for Social Media’s effort to create a Code of Best Practices for Fair Use in Online Video, I don’t see how it could ever reach enough people to have a meaningful impact. I run a website called fairusetube.org, in which I provide tutorials on fair use and guides for dealing with copyright issues on YouTube. I get messages from YouTube users facing copyright takedowns several times a week, and do my best to help them by giving general pointers about fair use and the YouTube copyright dispute process (without crossing the line into giving legal advice of course).

From my experience, most YouTube users know virtually nothing about fair use, and even when informed about their right to dispute copyright claims against their videos, they are too terrified of drawing the ire of copyright owners to risk filing a DMCA counter-notice. Add to this the fact that YouTube’s dual systems of copyright enforcement (both the automated Content ID system and the DMCA takedown process) are hopelessly confusing and leaves gaps in which videos can be blocked with truly no recourse, and copyright continues to be a huge obstacle to online video creators, regardless of the existence of a code of best practices (which most online video creators do not even know exists). Ultimately, as I argued in my forthcoming student note (to be published in the fall 2011 Regent Law Review), I think it will take clear legislative protections for noncommercial, transformative works and real penalties for abuse of the DMCA to solve this problem.

And while this criticism goes beyond the book itself, I also don’t think the Center for Social Media’s code goes far enough to cover the majority of what online video creators actually do. It strongly implies that any use of a complete piece of music in a video cannot be transformative, and therefore is unlikely to be fair use. Coming from my perspective as a vidder who has made several highly popular anime music videos, I would disagree with this. Even though my vids use complete copyrighted songs, I (like other AMV creators) deliberately craft my videos so that the music and video are inseparable parts of a new work of art, where both mutually reflect upon the other and add new meaning and message that would not be present with either the music or the video alone. If this isn’t transformative, I don’t know what is. The fact that these songs would be impossible for amateur creators to license any other way should only add to the case for fair use in these situations. Personally, I would love to see a more expansive code of best practices for online video that recognizes things like vidding—even where complete songs are involved—as fair use.

These minor criticisms aside, I found this book a highly informative and insightful read on the current state of fair use law, with lots of valuable suggestions on how to reclaim and expand fair use rights in the face of long and strong copyright restrictions. It is a must-read for anyone interested in issues of copyright reform, and I hope it will lead to more and more people standing up and exercising their rights under fair use as one concrete step we can all take to fight against overly burdensome copyright laws.

 

 

Response to Rep. Marsha Blackburn: A True Conservative Tech Policy

On January 18, Congresswoman Marsha Blackburn gave a speech purporting to give a conservative view of technology policy. As a strong conservative myself, I was deeply saddened to read this speech, which not only displays a deep lack of understanding about important policy issues facing the tech world, but a misunderstanding of the true tenants of conservatism in favor of the very corporate cronyism which Republicans are all too often accused of.

I have long been saddened by the fact that while I would characterize my overall political views as strongly conservative, on matters of technology, Internet, telecommunications, and intellectual property policy, my views are more in line with those more frequently advocated by liberals (though neither party actually holds to them very well). So I decided to write a response to her speech as a kind of follow up to my post a couple years ago about why conservatives should support net neutrality. It is my aim to show that while Blackburn’s goals are admirable, the tech policy that would hold truest to conservative values is nearly the exact opposite of what she has proposed.

Blackburn starts out her speech:

The casual observer sees Republican and Democrat approaches to tech policy as stylized. Republicans appear to reflexively defend big corporate interests. Democrats appear ready to smother any forward moving technology under reams of regulation. For Conservatives the challenge must be to look beyond platforms and technology to seek out those core Conservative values that are the basis of all our positions.

With this sentiment I would heartily agree. I would also say that Blackburn has accurately identified the weaknesses of both parties in this area. But unfortunately she goes on to commit precisely the same error she acknowledges Republicans are accused of–reflexively defending the interests of large corporations over the true public good.

Next Blackburn identifies the “core conservative values” that she believes a conservative tech policy should be based on:

The degree to which the economy is kept free, to which property rights are protected in the next century, to which free speech is assured; may all be shaped by tech policy. These are THE core conservative values, and we must rise to defend them in the tech policy debates in the coming decades – not to mention the coming Congress.

Another statement with which I would largely agree. Economic freedom, protecting property rights, and assuring free speech–all admirable goals and quite rightly declared to be the core principles which a conservative tech policy should aim to defend. Yet the rest of Blackburn’s speech is devoted to arguing that the government should NOT do anything to protect these values (and in fact should do other things which harm them rather than protect them). Before we go on, let us remember an important fact. Government regulation is not ALWAYS a threat to liberty, but if done rightly can in fact serve to protect these very liberties. Nor is government the ONLY threat to them; liberty can be infringed by other powerful interests as well, and corporations (especially the handful of corporations that control our entire Internet infrastructure) can pose just as great a threat to freedom of speech on the Internet as the government can.

Blackburn then sets out three central propositions to her view of tech policy through which her values can be applied:

First, what I call The Creative Economy is the emerging driver of the American economy and should be the focus of tech policy.

Second, intellectual property is the chief commodity of this new economy. For our prosperity to endure, intellectual property rights must be reinforced.

Finally, that the Internet is the primary marketplace for the creative economy. It must be kept free, predictable, and accessible.

Regarding Blackburn’s first and second propositions (which are essentially the same), no one can deny that America’s economy is becoming increasingly based on creative works and information goods rather than industrial products, and that those information goods are protected by intellectual property laws. However, is increasing intellectual property rights really the best way to greater prosperity? At their core, intellectual property laws confer exclusive ownership of information, so that no one else is allowed to use it, thus creating artificial scarcity and theoretically imparting value. In an age when freedom of information is the source of such great innovation, do we really want to pass even more restrictive laws that concentrate ownership of that information in the hands of a few large companies, whose idea of innovation is to sit on that information and sue those who attempt to actually use it (i.e. patent trolls)?

Blackburn says:

Culturally, we all differentiate between material and intellectual property rights. For the Creative Economy to thrive, we need to dissolve the barrier and ensure intellectual property rights are as strictly enforced as material rights.

This is where Blackburn is dead wrong. Has it occurred to her that there might be a good reason for this differentiation? In her very next sentence, Blackburn claims that “our founders, in Article 1, Section 8, Clause 8 [of the Constitution] explicitly established an intellectual property right to be treated with the same reverence as the material property protected by the 5th Amendment.” Yet those same founders in that same clause of the Constitution also mandated that copyrights and patents be granted only for “limited times,” while rights in physical property are perpetual. So it seems the revered Founders themselves drew a distinction between physical and intellectual property. And rightly so, for the Founding Fathers (particularly Jefferson) recognized that in order for a culture to grow, each successive generation must be free to build upon the ideas and accomplishments of the one before it.

There is very little in either art or science that is completely original. Rather art is constantly borrowing from and adapting prior art, and every new invention improves upon those previously developed. The Founders recognized that to grant complete and perpetual ownership of ideas to those of one generation to keep locked up forever leads to cultural stagnation. And so they mandated that after a certain period, copyrights and patents expire, and the ideas they protect fall into the public domain where they are free to be used by anyone.

While I agree with Blackburn that intellectual property rights should be protected, they should not be protected so strongly that no one else can ever use the ideas they protect, to the detriment of follow-on creativity and innovation. To do any less threatens the very value of assuring free speech which Blackburn cited earlier; for in the world of the Internet, intellectual property rights are headed towards a full-on collision with freedom of speech and the 1st Amendment. Blackburn however, seems not to have considered this, for later on she advocates a “war on intellectual property infringement” which she likens to the War on Terror.

Here are just a few of the ways she advocates increasing IP protections:

• Patent reform “with strict deterrents to infringement.” Never mind the REAL problems in the patent system, such as out-of -control software patents and patent trolls tying up every attempt at genuine innovation in endless lawsuits. Never mind the fact that nearly everyone in the software industry now considers patents a greater hindrance to innovation than help. No, obviously the current system isn’t protecting patents enough, so patent laws need to be made even stricter.
• Compromise on Orphan Works legislation, which would not even be necessary if Congress hadn’t extended the copyright term to well over 100 years, such that works remain copyrighted long after their creators are dead and no one even cares about them anymore. Why not deal with the root of the problem and decrease the scope of copyright and the length of copyright terms instead, reinvigorating the public domain in the process?
• Passage of “Rogue Website” legislation (the COICA bill), which would allow the Justice Department to yank website’s domain names and order ISPs to block websites that  have never been proven to violate any laws, with virtually no accountability; placing an unconstitutional prior restraint on online free speech and wreaking havoc with the domain name look-up system. Oh and it wouldn’t even actually work, since the measures the bill proposes are laughably easy to circumvent.

Can’t a conservative view of intellectual property rights be a little more sensible? And what about protecting the fair use rights of Internet users to make noncommercial, transformative use of their culture? What about IP policies which actually promote the grown of culture and science rather than prop up the dying business models of a few monolithic corporations, while at the same time giving the government virtually unlimited power to censor online speech in the name of “protecting intellectual property rights”? Since when was that conservative?

Finally, Blackburn attacks the FCC’s recent net neutrality rules, which she claims only address a hypothetical problem and will serve only to bog down future innovation in bureaucratic red tape. She states that:

The FCC’s actions are also narrow minded – reinterpreting online commerce as online communication in order to assert jurisdiction. They regulate what is perhaps the most incidental aspect of any creative economy – the means of transmission.

Apparently Blackburn adheres to the regular Republican line that because Internet Service Providers own the “pipes” of the Internet (its physical infrastructure of transmission), they should be free to do whatever they want with the content that flows over it. Yet ironically, she argues earlier that we should cease focusing on the devices with which online content is accessed, but rather focus on fostering the creative content the Internet carries. You cannot have it both ways. ISPs freely admit they want to be able to charge not only their own customers for Internet access, but also charge major websites for the “privilege” of transmitting content to their users. At the same time, they want to be able to work out deals for “paid prioritization,” so that, for example, Netflix can pay Verizon to make it’s streaming video load faster than Amazon’s video on demand service. And they would like nothing better than to “cable-ize” the Internet, so that consumers are forced to buy Internet service in packages of websites rather than an amount of bandwidth that they can use to access the online content of their choice. Such an ecosystem is not conducive to the grown of online content!

Earlier in her speech, Blackburn talks about protecting garage-bound entrepreneurs against having to navigate a maze of bureaucratic alphabet soup when starting up an innovative online service. What about the bureaucratic nightmare the next Google or YouTube would face if, in addition to having to pay their own ISP for Internet access, they also had to negotiate deals with every local ISP in the country just to be able to reach viewers at the other end? This is what the FCC’s rules were designed to prevent, and it’s exactly what we’ll get if Blackburn has her way and Congress kills any hope of the government being able to mandate basic rules for net neutrality (which rather than being the bureaucratic nightmare Blackburn describes, are simply enforcing the status quo condition that all websites should be treated equal by local ISPs). This is not “regulating the internet in extraordinary ways, in a manner we have not applied to other markets,” as Blackburn says. Rather it is simply laying down basic rules of the road akin to those for any other common carrier, that all comers must be treated alike on a level playing field.

So what should a true conservative tech policy look like? Here are my suggestions:

1. Keep the online economy free by passing strong net neutrality rules which preserve the Internet as an open platform for innovation, on which all web services compete on an equal playing field. Allow success on the Internet to be determined by that grand old conservative principle of competition in a free market, rather than which online services can strike the most favorable preferential deals with ISPs.
2. Promote the growth of the creative economy by lessening the scope of intellectual property laws, ensuring that everyone is free to innovate and create new information goods without the constant threat of a lawsuit for copyright or patent infringement. Take steps to prevent patent trolls for abusing the patent system by forcing true innovators to defend every invention in court against bogus and overboard patent claims by companies which don’t even produce anything of value, but only sue those who do. And craft policies which respect the rights of EVERYONE to create content online (including ordinary Internet users on user-generated content sites), rather than presuming that only the rights of large media companies are worth protecting.
3. Ensure online freedom of speech by ending attempts to censor speech in the name of protecting obsolete business models, but instead protect the rights of Internet users to remix and interact with their culture. Lessen the restrictions of copyright to make culture accessible to everyone, not just a few large media companies. These companies should still have the right to profit from their creative works, but they should be encouraged to do so in ways that reflect the reality of the digital world, rather than relying on futile attempts to use IP law to prop up dying business models. Not every “infringement” is evil, and if copyright owners would be willing to innovate and think outside the box, they may find it is perfectly possible to make money from creative content even while being less restrictive about the use of their property. Property rights are only as good as the use they are put to, and if property rights are to be respected, we must have a system of intellectual property that actually works and that people are willing to abide by.

Finally, remember that, while conservatives have always feared government power, the real danger comes from centralized power in any form, whether in government or in corporations which have every bit as much influence over our lives as the government. Instead of reflexively opposing government regulation and defending corporations at all costs, a true conservative tech policy must recognize the threats both government and corporate actions pose to our liberty. And in true conservative fashion, we should employ the tried and true system of checks and balances to protect our liberties by playing each of them against the other. Therefore let corporations restrain the government (as corporations already have tremendous political influence), and let the government restrain corporations.

The Purpose of Copyright Law

Recently several prominent blogs have been debating the fundamental purpose of copyright law, and Ars Technica ran an article on the exchange. The central question is whether copyright exists first and foremost to protect the rights of artists and creators to benefit from their intellectual “property,” or whether its primary purpose is to benefit the public by promoting the creation of culturally beneficial works. I believe both the Constitution and the history of American copyright law up until the 1990s or so clearly favors the latter view–that copyright exists to promote cultural enrichment and the interests of creators are inherently secondary. Below is an except from a paper I wrote for the Entertainment Law Initiative Essay Contest arguing in favor of this interpretation:

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The constitutional purpose of copyright law is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[1] Fundamentally, copyright law exists to promote the production of creative works, and in doing so must balance two distinct interests—the right of society to have access to and benefit from creative works, and the need to allow creators to benefit financially from those works in order to motivate their production. This balance is achieved by granting creators a temporary monopoly over the use of their works, which gives them the incentive and financial means to produce them. However, creators’ rights are always considered secondary to the public benefit. As commentator Mark Nadel states, “Granting the copyright holder a virtual monopoly by prohibiting the unauthorized copying and sales of copyrighted works is a necessary evil for attracting the financial investments needed to promote the creation and distribution of these creative works.”[2]

Contrary to the claims of many copyright holders, copyright is not based on the recognition of a fundamental right to control and benefit from intellectual property, but is rather an economic bargain to encourage socially beneficial creativity. Indeed, Congress has explicitly rejected the idea that copyright is based on natural rights, but has instead stated that its purpose is for the benefit of the public.[3] Economically, creative works (also called “information goods”) such as music are considered “public goods,” which are characterized by non-rivalry (one use does not compete with another) and non-excludability (difficult or impossible to limit access to).[4] These goods are typically difficult to profit from, and because they generally have fairly high production costs, there would be little incentive for people to produce them unless there is some guarantee that they can profit from their efforts.[5]

Copyright laws protect producers’ ability to price information goods above their cost of production by artificially limiting the supply of those goods and restricting access to them, reintroducing rivalry and excludability to what would otherwise be public goods. These restrictions allow creators to profit from creative works, motivating the production of works that would not otherwise be created. While this involves some loss to society through decreased access to copyrighted works, the monopoly created by copyright is considered justified as long as it results in a net gain to society in the form of more information goods being produced.[6] Conversely, when the exclusive rights granted by copyright do not result in a net benefit to society, they are not justified.[7] Therefore, if a particular right granted by copyright law does not produce a net benefit to society, it should be removed.

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[1] U.S. Const. art. I, § 8.

[2] Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact of Marketing, 19 Berkeley Tech. L.J. 785, 787 (2004).

[3] See H.R. Rep. No. 60-2222, at 7 (1909) (“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings . . . but upon the ground that the welfare of the public will be served. . . . Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. . . .”).

[4] David Lindsay, Centre for Copyright Studies, The Law and Economics of Copyright, Contract and Mass Market Licenses 23 (2002), http://www.copyright.com.au/reports%20&%20papers/IssuesPaper_Lindsay.pdf.

[5] Id. at 24 (“To the extent that an information producer is unable to recover the costs of production, incentives for the production of information goods, such as copyright material, are undermined.”).

[6] Nadel, supra note 4, at 787.

[7] See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989) (“The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ ”).

Square Enix Abuses YouTube DMCA Takedown Process

A few months ago I wrote a post on why anime music videos (AMVs) would likely be considered fair use under US copyright law. Well it wasn’t long before I was given the chance to test that theory.

This past Sunday I uploaded a new anime music video I made using footage from Final Fantasy VII: Advent Children Complete and Final Fantasy VII: Crisis Core, set to Breaking Benjamin’s awesome new song “Anthem of the Angels.” (You can currently see the video hosted on Facebook Video here.) Because Advent Children Complete was released in glorious high definition, I uploaded the video in full HD to YouTube, which I think may have been the reason the video immediately triggered YouTube’s copyright filters, which blocked it because of a copyright claim by Square Enix Co., Ltd., the Japanese video game company that makes the Final Fantasy series.  Just as I have done each time one of my videos has been blocked by the YouTube Content ID system in the past because of the whole Warner Music debacle, I immediately disputed the copyright claim with the following statement:

The use of video footage in this video is fair use because it is (1) highly transformative, significantly altering both the content and message of the original; (2) noncommercial in nature; and (3) only uses a small fraction of the original.

I could also have added that the video could have no possible negative effect on the market for the original works, which is the fourth reason that the use of anime video content in AMVs is very likely fair use. Anyway, I thought that this would be the end of it. My video was restored and I verified that it was playable. However, barely five minutes later I got a notification from YouTube saying the video was blocked again, this time because of an actual DMCA takedown notice from Square Enix.

Because I am fairly confident my use of Final Fantasy footage in an AMV was fair use, I decided to go ahead and submit a formal DMCA counter-notification, which I generated with the handy counter-notification generator at ChillingEffects.org. By law, DMCA counter-notifications must contain the following five elements, as nicely summarized by YouTube:

Identify the specific URLs of material that YouTube has removed or to which YouTube has disabled access.

Provide your full name, address, telephone number, and email address, and the username of your YouTube account.

Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or San Francisco County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”

Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted.

As you can tell from the wording above, this is pretty serious stuff, as it could potentially open me up to a lawsuit, though that is incredibly unlikely, given that, according to the Electronic Frontier Foundation, no individual YouTube user has ever been sued over a remix video, and Square Enix would have to be incredibly stupid to bring the bad publicity on themselves of suing a fan for making a Final Fantasy tribute video on the eve of the release of Final Fantasy XIII in December. (Yes, that’s Final Fantasy thirteen – you can see how popular this series is.)

So, I submitted a counter-notification to copyright@youtube.com around 11pm EDT Sunday, and almost exactly 48 hours later at 11pm on Tuesday, I received the following message from YouTube:

Dear Patrick,

Thank you for your counter-notification. It has been forwarded to the party that sent the takedown notification. If we receive no response, your material will be restored between 10 and 14 business days from today.

Sincerely,

The YouTube Team

What this means in short is that Square Enix has 14 days to file a lawsuit against me, and if they don’t YouTube will restore my video. The ball is now in Square Enix’s court, so we’ll see what happens with that.

Analysis

1. Bad move for Square Enix

Now there are several things that are interesting about this situation. The first is that Sqaure Enix would go after YouTube videos at all, which is an incredibly stupid business decision. The Final Fantasy series is not only the best selling anime video game franchise in history, but THE most popular source for AMVs, with a search for ” ‘final fantasy’ amv” resulting in 122,000 hits on YouTube. Over 8,000 Final Fantasy AMVs are hosted at animemusicvideos.org. Final Fantasy fans love the series, and like true digital natives they like to express that love by making tribute videos–taking clips from the various Final Fantasy games and movies and setting them to their favorite songs. Many people then watch these videos and discover Final Fantasy for the first time, then go out and buy the games. Thus, AMVs serve as free advertising for the series, bringing in new fans and new sales for Square Enix.

While I don’t necessarily think Square Enix intended to go after AMVs by opting into the YouTube filtering system (I think they’re probably trying to catch people uploading FFXIII trailers or full scenes of Advent Children Complete), they must have known that YouTube’s filter’s would catch AMVs as well. A quick glance at AMV.org’s forums revealed I am not the only person who has had FF AMVs blocked, and some people have had their accounts deleted because of it. Taking advantage of YouTube’s filters therefore amounts to a declaration of war on Square Enix’s most loyal fans–the ones who love Final Fantasy so much that they take the time to make music videos in honor of it. This is a new low for Square Enix, which is already notoriously overprotective of its intellectual property. What’s more, it runs against the entire anime culture on which the FF series depends for its popularity in the first place. If they continue to block AMVs in this manner, they risk alienating their fan base, and that is a stupid business decision no matter what way you look at it.

2. DMCA Abuse

The second interesting thing about this situation is the manner in which it occurred, leading me to think there is a strong legal argument that Square Enix is abusing the DMCA takedown process by making bad-faith copyright claims. Specifically the timing of the notices and the fact that the DMCA takedown notice came less than five minutes after I disputed the initial automated filter identification.

One of the things the DMCA requires copyright owners to include in a takedown notice is, “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”17 U.S.C. § 512(c)(3)(A)(v).

A federal district court in California recently held in Lenz v. Universal that this provision of the DMCA “requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice” and that this requires the copyright holder “to form a subjective good faith belief that the ‘particular use is not a fair use’ before sending the takedown notice.”

Now, the timing in this situation is suspicious, because my video was re-blocked by a takedown notice only five minutes after it was unblocked when I disputed the automatic filter. This leads me to believe that the takedown notice was sent by some sort of automated system which automatically responded to my dispute of the filter by sending a formal takedown notice. That is unless Square Enix had lawyers working at their American headquarters in California at 6:20 pm PDT on a Sunday evening capable of firing off takedown notices less than five minutes after being notified of a dispute. (I’m assume the takedown notice did not come from their main headquarters in Japan). This means that the takedown notice was likely sent by a computer with no human intervention, and unless I’m seriously mistaken as to some legal precedent I haven’t heard of, a computer cannot formulate a good faith belief about anything, let alone whether a use qualifies as fair use or not.

It would thus appear Square Enix did not fulfill their legal duties to make an initial review of potentially infringing material and to form a good faith belief that it was not fair use. So if this ever did come to a lawsuit, they would be wide open to a counterclaim of sending a false takedown notice in bad faith and abusing the DMCA takedown process. Like I said, interesting…

UPDATE 10/27/09: VICTORY!!!

Last Friday night, October 23, I received the following message from YouTube:

Hi there,

In accordance with the Digital Millennium Copyright Act, we’ve completed processing your counter-notification regarding your video:

http://www.youtube.com/watch?v=u4Qs-YPVdRM

This content has been restored and your account will not be penalized.

Sincerely,

The YouTube Team

My video is now back up and running. Now if only other AMV makers whose videos were falsely blocked by Square Enix would fight back as I did.

Are Anime Music Videos Fair Use?

Anyone who knows me probably knows I like studying issues related to copyright law–a fascination driven by the fact that as a child of the Net Generation, I have grown up immersed in what Lawrence Lessig calls the “read-write” culture fostered by digital technology, where virtually any action I take online raises potential copyright implications.

Nowhere is this true than the hobby I have had since high school of creating “anime music videos” or AMVs (music videos setting footage from anime shows and video games to popular songs) and posting them on websites such as YouTube and animemusicvideos.org. And it’s not just me; there are tens of thousands of these videos posted online and they have taken on a life of their own as an art form in their own right, with a whole subculture of AMV editors with contests, awards, and websites dedicated to them.

Yet despite their popularity, I am astonished at the lack of articles analyzing where these videos stand in relation to copyright law. Most articles I have been able to find on the subject simply assume they are copyright infringement, in which case American copyright laws have essentially rendered this entire art form presumptively illegal. However, I am not convinced of this, and I think a solid case could be made that AMVs fall firmly under the doctrine of “fair use” in US copyright law. After my own experiences with copyright run-ins related to my AMVs (and subsequent victories), I thought I’d post a brief analysis of why I think there’s a good case to be made for AMVs as fair use.

As audio/visual works, there are two separate components of AMVs that raise potential copyright concerns and must be analyzed separately to determine if they constitute fair use–namely the video and audio tracks.

Video Track

AMVs typically take ripped footage from anime movies, TV shows, and video games and re-edit them using brief clips no more than a couple seconds in length each set to music, telling a new story by juxtaposing video clips with the beat and lyrics of the song that emphasize different aspects of the original plot. Because this heavy re-editing is so obviously transformative, there is a very strong case to be made that the video portion of AMVs constitutes fair use. Running down the four criteria for fair use in US copyright law, we get the following:

1. The Purpose and Character of the Use

a. Non-commercial — Non-commercial works are much more likely to be fair use than commercial works for profit. Anime music videos are purely non-commercial works created for fun and entertainment and not personal or financial gain.

b. Transformative — The more a work changes and adds to the original rather than merely copying it verbatim, the more likely the use is fair. The standard for determining whether something is “transformative” rather than merely “derivative” is whether it “merely supersedes the objects of the original creation or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message.” (Campbell v. Acuff-Rose Music). At least in regards to the video track, AMVs so heavily modify the original source footage by clipping, reordering, and overlaying special effects as to make it an entirely new creation. While the use is certainly “derivative,” re-editing plus the new meaning imparted by the particular scenes selected and the music makes AMVs highly transformative, weighing significantly in favor of them being fair use.

2. Nature of the Copyrighted Work

Under copyright law, published materials are more likely to allow fair use than non-published works, and factual works are more likely than artistic works. In this case, the original copyrighted material (anime footage) is published (counting in favor of fair use) artistic work (counting against fair use). However, this factor is the least significant of the four, and can be outweighed by the other three.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Generally, the less of a copyrighted work that is used in relation to the whole the more likely it is to be fair use. In the case of AMVs, only 3-5 minutes of footage are typically used, consisting of 1 or 2 second clips, often out of hours of available source footage. While these clips may often contain the “heart” of the original work (the most significant scenes of the original anime), the minuscule amount of footage used combined with the brief duration of clips weigh significantly in favor of fair use.

4. The effect of the use upon the potential market for or value of the copyrighted work

This is often the most important prong of the fair use test, and together with the first prong is the one most strongly in favor of AMVs as fair use. In the case of non-commercial works, the burden of proof is on the copyright owner to prove harm to the market or value of the work (Sony Corp. v. Universal City Studios). In the case of AMVs, the small amount of footage used, the reordering of brief clips, and the absence of the original audio track makes it almost impossible for an AMV to be a substitute for the original work (i.e. nobody would watch the AMV instead of the original work). There is also no market for licensing anime clips for use in amateur music videos. Thus AMVs would be highly unlikely to have a negative impact on the market for the original work. In fact, they are more likely to have a positive impact on sales of the original, as they would increase interest in the original work and drive increased sales, effectively acting as a free promotion for the source anime. This factor also weighs heavily in favor of fair use.

Conclusion:

Because the video track of AMVs is non-commercial, highly transformative, uses only a small portion of the original, and has no negative impact on the market for the original, there is a very strong case that the video portion of AMVs constitutes fair use.

Two notes, however. First, in cases where an AMV creator  had to break the copy protection on a DVD to obtain the source footage, that would be illegal as they violated the anti-circumvention provision of the DMCA, which prohibits any circumvention of copy protection regardless of whether or not the use is fair. Second, because AMV creators are usually their most avid fans and they wish to avoid upsetting them, anime creators are highly unlikely to ever mount legal challenges against AMVs. Thus the video portion of an AMV will likely never be the subject of copyright action. The most likely threat comes from the owners of the copyright for the audio track, to which I now turn.

Audio Track

Since AMVs typically use popular songs by high profile artists signed under major record labels (an overall much more litigation-happy bunch than anime creators), it is because of the audio track that AMV creators are most likely to experience copyright problems. Wind-up Records (the label for Evanesence, Seether, and Creed) has already issued take down notices barring AMVs using their songs from animemusicvideos.org, and as I mentioned in my last post, I myself have run up against Warner Music’s YouTube embargo with my own AMVs. Unfortunately, the audio portion of AMVs also has the weakest case for fair use, though I believe a good case can still be made that they are indeed fair use.

1. The Purpose and Character of the Use

a. Non-commercial — Once again, AMVs are completely non-commercial works which makes them much more likely to be fair use. While they are often posted on commercial sites such as YouTube, that has no bearing on whether AMVS themselves are fair use or not. Because of this I find it highly ironic that YouTube has attempted to work out licensing agreements with music labels to allow users to use their music in user-generated videos. Under the DMCA safe harbor provision, the responsibility to ensure content is non-infringing is entirely that of the user that uploaded the videos, not YouTube. Thus whether or not sites like YouTube have a licensing agreement with labels such as Warner has no bearing on whether the videos are infringing or not.

b. Transformative — It is much less clear that AMVs are transformative in relation to the music source than the video source. Since they usually use a whole song without editing or altering it, they clearly don’t transform the song in the sense that they make it into something different as with the video track. However, I think there is still a case to be made that AMVs are transformative in relation to the song used in “altering the original with new expression, meaning, or message.” Overlaying the song with poignant video images which are often used to translate the lyrics literally on screen or otherwise highlight certain things about the song clearly adds a new layer of meaning and expression to the song. The video and music are combined to create an entirely new message which is much greater than the sum of its parts. The music reflects on the video and the video reflects on the music, imparting new significance to both. It is thus a qualitative transformation rather than a quantitative one. The viewing experience of watching an AMV is qualitatively different than either watching the anime by itself or listening to the song by itself, and thus AMVs could still be considered transformative and likely fair use.

2. Nature of the Copyrighted Work

As with the video, the source songs in AMVs are published artistic works. The fact that they’re published (assuming you don’t use a pre-release leak or something) is slightly in favor of fair use, while the fact that they’re artistic rather than factual works is slightly against fair use. Overall, this prong isn’t very significant either way.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

This prong is slightly problematic, since an entire copyrighted song is used. This would tend to weigh against fair use. However, some cases where an entire work was copied have nevertheless been held to be fair use, “if the secondary user only copies as much as is necessary for his or her intended use.” In this case it could be argued that the entire song is needed, since the whole point of an AMV is for the song to shape the video and for the video to illustrate the song. Using any less than the entire song would make for an incomplete video and would reduce the power of the video. If the audio in the video is encoded at a significantly lower quality than CD quality audio, you could also argue this point qualitatively, since the song in the video is too low quality to substitute for the original. Nevertheless, this argument is still fairly weak and it would be a better strategy to argue this prong is outweighed by the other prongs.

4. The effect of the use upon the potential market for or value of the copyrighted work

This is where the strongest case for usage of the song being fair use can be made. Once again, in non-commercial cases, the burden of proof is on the copyright holder to demonstrate a negative effect on the market for the original work. There are two possible ways they could show this—the effect on sales of the original song and the impact on a possible market for licensing the song for audiovisual synchronization:

a. Effect on the market for the original song: Copyright holders could argue that AMVs could serve as a substitute for buying the original song if people merely listen to the song on YouTube or rip the audio track from the video and save it to their computer instead of buying the song. While both of these things are certainly possible, it would be difficult for the copyright holder to prove an actual negative impact on sales. Those who are content to merely listen to the song on YouTube would not have been likely to buy the song anyway, while relatively few people possess the technical knowledge to rip the audio from a video and use that in place of buying the song. Those that do would most likely consider the audio rip of inferior quality to purchasing the song (or merely illegally downloading it a different way), and would thus not likely consider it worth the trouble. Both of these factors also most likely would be outweighed by the positive effect the video would have on the market for the original song by giving the artist additional exposure and free promotion, motivating people who otherwise might not have heard the song to buy the artist’s work.

b. Effect on a possible licensing market: In large-scale commercial scenarios, there is an established market for audio visual synchronization rights, where musical artists sell the rights to filmmakers to “synchronize” their music with video footage such as in films or television commercials. However, there is at present no market for licensing tracks to individual hobbyists wanting to create amateur non-commercial music videos for fun. Indeed, if such an individual tried to license a song for an AMV, they would most likely find themselves lost in a maze of legal red tape or simply ignored by music labels who wouldn’t take their request seriously. Even if they did, the labels would most likely insist on charging commercial-scale license fees on the level of several thousand dollars per use—an overwhelmingly cost prohibitive sum for amateur non-commercial use. Because a legitimate market for licensing songs for uses such as AMVs does not currently exist, there is therefore no potential for this use to have a negative effect on such a market. You cannot negatively impact that which does not exist.

Conclusion:

While the case for the use of copyrighted music in the audio track of an AMV is not as clearly fair use as the use of anime footage in the video track, I think a strong case for fair use can be made here as well. The best strategy in this area would be to emphasize the non-commercial transformative nature of the use and the absence of any negative impact on the market for the original song. Indeed, AMVs often have a positive effect on song sales, since many people discover bands through watching AMVs they would not otherwise have heard of and in turn go and buy their music. Music videos can serve as valuable promotion for musical artists—something artists themselves recognize when they create their own music videos to promote their music. The transformative nature of AMVs plus their non-commercial character and absence of harm are thus strong indicators that they constitute fair use.

More resources about anime music videos and fair use:

• Wikipedia article on fair use
• Copyright and Culture: Anime Music Videos
• Lawrence Lessig, “Creatives face a closed Net”
• Code of Best Practices in Fair Use for Online Video
• Stanford Center for Internet and Society: Fair Use Project
• ChillingEffects.org

It Pays to Know Your Rights Under Copyright Law

Today I realized I hadn’t been paying too much attention to marketing my YouTube channel of late. I had recently noticed that one of my anime music videos using the song “Hand of Sorrow” by the Dutch symphonic metal band Within Temptation had been getting a lot more views and comments lately. By far my most popular AMV on YouTube, it now has just over 80,000 views, which is pretty awesome. But it wasn’t until I looked at the view statistics using YouTube’s handy analytics tool, Insight, that I realized why it has experienced this sudden increase in traffic.

Here is a screenshot of a graph of the number of views my video has gotten over the last few months:

View Statistics for one of my anime music videos on YouTube using a song licensed by Warner Music Group

Within Temptation is licensed in the US under RoadRunner Records–a subsidiary of Warner Music Group. You’ll notice a huge jump in views of my video beginning around January 5th, where my video went from averaging around 100 views a day to around 400. This just happens to coincide with when Warner had a licensing fallout with YouTube and demanded that YouTube block all videos using songs it owned the rights to.

At the time, this caused a huge stink among YouTube users (though not as big as I wish), who beginning in late December and early January suddenly found their previously allowed content featuring WMG songs being blocked by YouTube’s copyright filters. This caused a huge problem with the same artist as my video above–Within Temptation, who in November had just held an innovative YouTube contest in which they provided users with behind the scenes concert footage and asked them to make a music video of the same song I used in my AMV. The winner, who had won a free trip to a concert in Amsterdam, now found his video yanked off YouTube, dispite it being done with the express approval of the band and being featured on the band’s website.

The result of all this was that everyone who uses YouTube is now mad at Warner, and the Electronic Frontier Foundation has been urging people whose videos are unjustly pulled from YouTube to fight it by disputing the automatic takedowns with fair use counterlclaims, and has even offered to defend those who do in court if necessary. The reason for my video’s sudden increase in popularity? I did precisely that.

Somtime between the last week of December and the first week of January, I received a notice from YouTube saying my video had been disabled because it had been identified as infringing on Warner’s copyright by YouTube’s automatic Content Identification System. Because this was one of my most popular videos, I wasn’t about to let them delete my video just because a computer had matched the song I used with one on Warner’s blocklist. And because I have spent the last four years acquiring a thorough knowledge of copyright law, I was pretty sure I could successfully defend my video as a fair use of Warner’s content.

So I immediatly disputed the copyright claim, citing the following reasons for why my video constituted fair use under US copyright law. It was (1) non-commerical and not for profit, (2) transformative in nature (combining music and video), (3) was of sufficiently low quality that it could not reasonably compete with the original work, and (4) could have no possible negative effect on the market for the original song, but would in fact promote the song and motivate people to buy it. My video was automatically restored after filing the dispute, and a couple months later a message appeared next to the video saying the dispute had been sucessful and the copyright claim had been removed.

However, as the statistics indicate, most other people apparantly didn’t do what I did. Before the Warner ban, there used to be numerous videos using that same song on YouTube, including several other Final Fantasy AMVs. Because I defended my rights under copyright law and other users didn’t, my video is now one of only a few videos using that song, and now appears at the top of the YouTube search list. The YouTube analytics also indicate that at the same time, the number of people who discovered my video through related videos fell dramatically, while the number who discovered it through YouTube searches rose dramatically. So I guess I have Warner to thank for removing all my competition so my video could increase in popularity. I guess draconian copyright enforcement has its place after all!

The Injustice we call Copyright Law

It’s been way too long since I’ve posted on this blog, so I’m going to share a post I recently wrote on my favorite subject: copyright law. While I have held these opinions for a long time, this is the first time I have really attempted to write them out in a coherent manner. It is my contention that American copyright law is such a broken, outdated, immoral, and corrupt system that it has lost all moral legitimacy in the eyes of the public, and is desperately in need of reform. I will explain my reasons for this belief below.

First, we need to examine the reasons copyright exists and the primary argument in favor of tough copyright restrictions, namely that music “piracy” hurts artists and is killing the music industry. Regarding the impact of piracy on artists, most people act like this is a settled question, when in fact it is anything but that. Sure you have studies galore sponsored by Hollywood and the recording industry saying they’re losing billions to piracy, that it’s hurting artists, etc. And then you have other studies concluding that the effect of piracy on music sales is “not statistically distinguishable from zero.” Which one of these is right? I honestly don’t know. In some cases, the numbers cited are simply false, such as when the MPAA once admitted it blatantly lied about the figures in one of its studies and made the number up. Other studies are genuine though, and deserve to be evaluated fairly. Having studied the basics of social research design and read a great deal on this particular subject, I’ve concluded it really comes down to what assumptions a given study makes, which in turn depends on the biases of the researchers.

The music industry automatically assumes there is a direct 1:1 correlation between downloads and lost sales, so every song downloaded equals a lost sale. With that assumption, it’s little wonder they conclude the music industry is losing billions to piracy. Even then if you actually add up all the loses they claim you find it’s a miracle the music industry still exists at all, considering that the total loses their studies predict are greater than the entire gross revenues of the music industry in the last 10 years.

Other studies attempt to take into account effects such as downloads motivating future sales, helping people discover new artists, sampling and then buying, or the fact that many people who download would never have bought the music anyway if they could not get it for free. When you question the basic assumption of a 1:1 correlation, the impact on the music industry is significantly less. And while it’s true some of these studies are relatively old (2002) keep in mind that research studies like that take a long time to perform so newer studies are not yet available, and that 2002 was still during what many people consider the heyday of p2p when mass illegal downloading first really took off and when you would have seen the most dramatic affect on music sales if indeed there was one. From this, I think the only really safe thing we can conclude is that while there is some negative effect on music sales from downloading, it is almost certainly not a 1:1 correlation, and every download does not in fact equal a lost sale. Beyond that, the jury is still out.

Second, regarding the morality of music piracy, that also is a sticky question. People often try to simplify the debate by equating piracy with theft, which is simply an invalid comparison. There is a reason our laws classify piracy in a totally different category than actually theft, simply because when you make a copy of a digital file it has no effect on the original. The concept of theft inherently entails the idea that when one person steals something, the original owner no longer has it in his possession, which with intellectual property is obviously not true. When my actions do not deprive you of your property, it cannot be called theft. Thus I think it is wrong to classify copyright infringement in the same moral category of property theft.

At it’s core, copyright is an application of what economists call the Coase Theorem, which is designed to supply incentives for the creation of positive externalities (beneficial things which characterized by limitless supply and the near impossibly of restricting access to them). It does this by creating a regime of artificial property rights, granting the creator exclusive right to produce “copies” of his creative work, which in theory allows him to benefit from that work providing an incentive to create it. Modern copyright law is thus a very utilitarian policy. Rather than recognizing some kind of inherent right of mankind as physical property rights do, it is meant to achieve a policy objective of, in the words of the Constitution, promoting “the progress of science and the useful arts.” This makes copyright merely a legal convention with no inherent moral value in itslef. In terms of legal philosophy, violating copyright law would be considered mallum prohibitum (evil because it is prohibited) rather than mallum in se (evil in itself).

The question then becomes, is violating the law always immoral? The typical Christian answer is “yes” since God commands us to obey our authorities, but I’m not convinced of this. It is also a long held aspect of Christian legal philosophy that “an unjust law is no law at all” (Augustine), and after studying copyright law extensively over the last few years I have come to the conclusion that the entire system of American copyright law is so chaotic, confused, corrupt, and in many cases blatantly unjust that it has lost any claim to genuine moral legitimacy. This does NOT mean we should feel free to violate the law at will, just that it is not necessarily immoral to do so and in some cases could be morally justifiable.

Indeed, it is almost impossible to NOT violate copyright law on a daily if not hourly basis, with some studies concluding that the average person incurs thousands of dollars in copyright liabilities every day. Technically every time you view a website on the internet copyright law is invoked since the site’s content is temporarily copied to your hard drive, though it is doubtful that any court would actually declare this illegal. The RIAA has stated they consider it illegal to rip legally purchased CD’s to your own computer, which technically makes a copy of the music. The DMCA explicitly makes it illegal to break the copy protection on legally purchased digital songs, even for personal use. It is thus illegal for me to break the DRM on a song I purchased from Wall-Mart’s music service to allow it to be played on my iPod. Likewise it is illegal for me to break the copy protection on a DVD to rip it to my computer either for personal use or even things that would otherwise be protected fair use, such as using it for commentary or criticism. It is illegal for me to take video footage at debate tournament and post a music video of it using copyrighted songs to YouTube (which I frequently did while I was in NCFCA), even though that video has zero potential to impact the artist in any way. Documentary film makers spend thousands of dollars clearing the rights to every copyrighted image, video clip, or song in their film, even if it just appeared briefly in the background of a scene they filmed themselves; and if they don’t they risk hundreds of thousands of dollars in legal penalties.

In the related area of patent law, large successful corporations are frequently held hostage by tiny groups of “patent trolls” who can sue for millions merely because they own a patent on a vaguely similar idea to the company’s product. Even if it is totally bogus, these companies still have to spend thousands of dollars in legal fees to defend themselves, and usually settle out of court to avoid the legal hassle. A similar kind of extortion is seen with the RIAA music downloading lawsuits, which sues thousands of people every year based on extremely weak evidence, but still succeeds in extracting thousands of dollars in settlements from people who are unable to afford the high cost of defending themselves in court and unwilling to risk incurring penalties in excess of $100,000 if they fail to prove their innocence. Even when these cases do go to trial, the victims are given virtually no due process, but are presumed guilty unless proven innocent; and judges frequently award huge judgments to the recording industry based on murky legal principles and technology they admittedly do not understand.

All of these injustices are totally legitimate under modern American copyright law, and are in fact encouraged by it. While copyright started as a means to promote progress in art and science, today it is anything but that, and likely PREVENTS more creativity and innovation than it encourages. In principle it is a beautiful thing, but in practice it is nothing more than a corrupt regime of injustice and extortion, which in my mind deprives it of any real moral legitimacy.

However, even if I am wrong on this, I’ll leave you with a final thought. The whole issue of whether music piracy is morally right or wrong, whether it hurts artists or not, etc., is really irrelevant. This is because no matter what you think about things like illegal downloading, it is not going to go away. You cannot simply make the internet disappear. Digital technology and its effects on creative work are here to say. The only question is how we will respond to it. For the last 5 years, organizations like the RIAA have waged war on the youth of America for this thing they call “piracy.” Yet nothing they have done has had the slightest impact on illegal downloading or reduced it in the slightest. Recent studies estimate that approximately 80% of American youth still illegally download music. In short, the war was lost before it even begun. Attempts to deal with the problem of piracy have thus clearly failed. The only question is will we continue to criminalize an entire generation of kids who merely do what technology enables them to do, teaching them to live with the mindset of criminals and decreasing respect for the law as a whole; or will we take advantage of numerous proposals for alternate systems which still provide incentives for artists to create but do not make 80% of American kids into criminals?