Once More With Feeling — Fox v. FCC back at SCOTUS

We’ve been here before, but now the Supreme Court is again hearing arguments on the FCC’s indecency standards, in particular the First Amendment aspects and the rule on fleeting expletives and broadcast.
Transcript: FCC v. Fox (Oral Arguments, Jan. 10, 2012)
Lyle Denniston, SCOTUSblog Many options on TV rules, “With one Justice testing the ultimate constitutionality of government controls on broadcast TV, another trolling for an exceedingly narrow approach, two others suggesting that technology may be overtaking the constitutional dispute, one signing himself up for rigorous morality policing, and one whose vote may really be crucial staying entirely silent, the Supreme Court on Tuesday wandered widely in its new exploration of the state of profanity and nudity on television and radio. The lively argument in the latest round of that controversy even had a lawyer pointing out portrayals of nudity in the courtroom decorations above the Justices’ heads.”
Adam Liptak, The New York Times, TV Decency Is a Puzzler for Justices, “In a rollicking Supreme Court argument that was equal parts cultural criticism and First Amendment doctrine, the justices on Tuesday considered whether the government still had good reason to regulate cursing and nudity on broadcast television. The legal bottom line was not easy to discern, though there seemed to be little sentiment for a sweeping overhaul of the current system, which subjects broadcasters to fines for showing vulgar programming that is constitutionally protected when presented on cable television or the Internet.”
Nina Totenberg, NPR: High Court Hears Arguments In FCC Indecency Case
“Inside the Supreme Court on Tuesday, Solicitor General Donald Verrilli, representing the Obama administration, said that Congress intended broadcast licenses to come with an obligation to meet certain decency standards — standards that would provide a safe haven for family viewing.”
Ruthann Robson, Constitutional Law Prof Blog FCC v. Fox Argument: On Naked Buttocks, Regulated Media, and the First Amendment “Both Fox (represented by Carter G Phillips) focused on the ‘fleeting expletive’ sanction based on Cher’s statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli).”


On Thursday morning, the House Judiciary Committee will have a full committee markup of the latest version of H.R. 3261 the Stop Online Piracy Act. Here’s some initial analysis from Mike Masnick at Techdirt Lamar Smith Proposes New Version Of SOPA, With Just A Few Changes.
Today, comedian Louis C.K. released his latest standup special, filmed earlier this year at the Beacon Theater in New York, NY as a simple $5 direct download. No DRM, payment simply through Paypal. He’s aware of the risk of piracy and believes that simply offering a product that’s inexpensive and simple enough that it’s a better customer experience.
I hosted a podcast discussion that I’ll be posting later this week — one of the topics we discussed was the fact that a torrent download offers the best viewing experience for any way of watching television programming. (None of the glitches of streaming, none of the commercials of broadcast and none of the interminably long menus of DVDs and Blu-Rays.) Probably the only other one that compares is iTunes (which has the disadvantage of being the most expensive way to watch lots of television.)
Is the best way to compete with casual infringements simply to offer the best experience?

The New Digital Divide

Susan Crawford in the New York Times on The New Digital Divide:

“While we still talk about “the” Internet, we increasingly have two separate access marketplaces: high-speed wired and second-class wireless. High-speed access is a superhighway for those who can afford it, while racial minorities and poorer and rural Americans must make do with a bike path…
“Over the last 10 years, we have deregulated high-speed Internet access in the hope that competition among providers would protect consumers. The result? We now have neither a functioning competitive market for high-speed wired Internet access nor government oversight.”

The market for dial-up internet access was competitive. The market for broadband access isn’t. And without competition, incumbents can simply charge a prevailing rate. There’s no incentive for competition, because it’s not like a homeowner can simply switch from Time Warner to Comcast without moving to a new house that is in a Comcast service area. Competition spurs innovation and reduces rent-taking. A market needs either tight regulation or stiff competition. Home broadband providers are shielded form both.

Market Failure and Piracy

The historical popularity of file sharing owes as much to access as to price. Back around the turn of the century when musical lovers were clamoring for the ability to buy legal downloads, but didn’t have a way to do that easier than piracy until Apple opened the iTunes store?
Dan Messer, Not All Bits, Warner Bros. Locking Down Harry Potter and Screwing Themselves “Hey, they tried to give someone, anyone, some money for this product and they were denied a legal avenue to do so at every turn. So, right or wrong, ethical or not, they acted upon the wantingness, the desire, created by Disney, and then removed Disney from the equation. Then they went out and gave that money to someone who would sell them some popcorn to snack on while watching the movie.”
All else equal, music, TV and film buyers don’t mind spending money on media when they know that it will be convenient and high quality. The hassles and risks of file sharing make sense when the paid alternative is both more difficult and more expensive or simply does not exist at all.

Termination Station

Larry Rohter, The New York Times, Record Industry Braces for Artists’ Battles Over Song Rights: “Since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” have generated tens of millions of dollars for record companies. But thanks to a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels out in the cold.”
Here’s the relevant section of the Copyright Act:
§ 203. Termination of transfers and licenses granted by the author

(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:

    (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s interest.
    (2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows:

      (A) The widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.
      (B) The author’s surviving children, and the surviving children of any dead child of the author, own the author’s entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author’s interest is divided among them.
      (C) The rights of the author’s children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author’s children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them.
      (D) In the event that the author’s widow or widower, children, and grandchildren are not living, the author’s executor, administrator, personal representative, or trustee shall own the author’s entire termination interest.

    (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.
    (4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee’s successor in title.

      (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.
      (B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

    (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

(b) Effect of Termination. — Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests under clauses (1) and (2) of subsection (a), including those owners who did not join in signing the notice of termination under clause (4) of subsection (a), but with the following limitations:

    (1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.
    (2) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of subsection (a). The rights vest in the author, authors, and other persons named in, and in the proportionate shares provided by, clauses (1) and (2) of subsection (a).
    (3) Subject to the provisions of clause (4) of this subsection, a further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under clause (2) of this subsection, as are required to terminate the grant under clauses (1) and (2) of subsection (a). Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under clause (2) of this subsection, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person’s legal representatives, legatees, or heirs at law represent him or her for purposes of this clause.
    (4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee’s successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a).
    (5) Termination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.
    (6) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by this title.

Were these in fact works for hire? Did the labels ever treat their artists like employees? If the artists are independent contractors, besides the named artists, who of the producers, executives and session musicians count as co-authors of the work?
This could prove to be very interesting… or not.
Update (8/17). The Times today ran a story about a copyright termination lawsuit on the front page of the arts section: A Village Person Tests the Copyright Law “Victor Willis, the original lead singer of the group, filed papers this year to regain control in 2013 over his share of “Y.M.C.A.,” whose lyrics he wrote, under a copyright provision that returns ownership of creative works to recording artists and songwriters after 35 years. His claim to “Y.M.C.A.” and 32 other Village People compositions, however, is being contested by two companies that administer publishing rights to the songs.”
The complaint: Scorpio Music v Willis

Urban Cycling and Digital Copyright Norms

This year, cyclists in New York City are contending with increased scrutiny from police officers, who are attempting to crackdown on any and all infractions of code. Bike Ticketing In New York, Widespread, On the Rise
Eben Weiss, Bicycling Magazine, In Crackdown on Cyclists, History Repeats Itself: “Nevertheless, this perception in New York City of bicycles as dangerous and the people who ride them as bullies has not changed. In an unprecedented investment in cycling infrastructure that gave even Portland an inferiority complex, New York City has added hundreds of miles of bicycle lanes in the past few years. As a result, the number of bicycle commuters has doubled since 2005. So, it seems, has resentment, and people have been blaming bike lanes for everything from harming local retail businesses (uh, it couldn’t have anything to do with that little recession we’re having, could it?) to somehow making the streets more dangerous for children and senior citizens, who would presumably prefer to be mowed down by cars instead of bicycles.”
Filmmaker Casey Neistat was ticketed for riding outside of a bicycle lane, and made this amusing video to show how often bike lanes are obstructed:

Also this week, this video highlighting the interactions between cyclists, pedestrians and cars:

3-Way Street from ronconcocacola on Vimeo.

Cyclists in NYC have a reputation for riding aggressively, weaving in and out of traffic, ignoring red lights and riding dangerously and erratically.
In large part, cyclists perpetuate these stereotypes because neither the city’s infrastructure nor law enforcement allow cyclists to ride safely while also compling with the law. A bicycle rider is much smaller and slower than the cars, trucks and buses with which he would share the roads, and much faster than – and thus dangerous to – the pedestrians who use the sidewalks and crosswalks. Absent a complete network of dedicated, physically separated, safe bicycle lanes, cyclists need to ride more aggressively in order to attempt to feel safe riding among the much larger and faster vehicular traffic. Riders who started cycling in the city prior to the Sadik-Kahn bike lane bonanza were accustomed to riding aggressively without much regard to the letter of the law, because the infrastructure did not create a respected space for cyclists to behave prudently and responsibly as cyclists. Cyclists riding in traffic lanes were (and still are) treated by motorists as interlopers into their dedicated space. Cyclists riding on the sidewalk in violation of the law were doing so because it could be safer than riding alongside traffic.
In at least two ways, copyright in the digital age also reflects a similar dynamic, with remixers and P2P file sharers acting without strict adherence to the law in order to route around the market and copyright regime knowing how to meet their needs.
During the dawn of the era of digital music, users turned to P2P file sharing when they found it impossible to legitimately buy digital downloads. Before the launch of the iTunes Music Store, 8 years ago, there was no systemic legal way to buy individual songs for a reasonable price. Buyers who were willing to pay $0.99 for a hit single, but not $12 for the album including that single might be priced out of buying the full album. So instead, they would turn to P2P in order to get the one track they wanted.
At the beginning of the P2P era, downloading MP3s over a high-speed university network or internet connection could be faster than ripping the legitimately purchased CD to MP3 on a standard computer of the time. And so many of the early P2P music pirates infringed on copyright law not as a show of protest against an unjust law, but out of a market’s failure to offer a product – downloadable digital music – at any price. The original simply offered the best music acquisition experience available at the time.
For a time in the early aughts, the major labels were not only not offering the digital music product that the market sought, but seemed vigorously opposed to offering any service that was both legal and offered any level of convenience to customers. Because the labels were so worried about piracy, they were hesitant to offer convenient digital downloads at reasonable prices without ensuring that those files were locked down with DRM. It seemed like the perception on the label side was the digital downloads = piracy. Only after Apple’s iTunes service offered enough DRM to satisfy the labels, but worked seamlessly enough to entice iPod users did we start to see today’s market gradually emerge.
In the last 8 years, a vibrant market for digital music and video content emerged to provide a wide selection from a number of retailers in both downloadable sales (iTunes, Amazon) and streaming rentals (Rdio, Rhapsody, MOG, Netflix, Hulu). At the same time, copyright owners went to court to defend their rights against infringers. And sharing music and video illicitly over P2P has lost most of the noble reasons for its use. The vast majority of users on P2P now are doing so out of a conscious preference of piracy over legitimate access. In some cases, P2P helps fans access material when it is first released, rather than waiting for the release window to catch up to their home country. In other cases, it is because piracy provides a better user experience than the legitimate access. But in others, it’s simply to avoid having to pay.
The cyclists who started riding aggressively and flaunting rules out of safety will happily follow reasonable laws once the infrastructure is in place to allow them to ride safely, quickly and conveniently throughout the entire city. There are other cyclists however, who choose to flaunt the law, ride aggressively and recklessly, salmoning against traffic as a statement of some kind. They may see themselves as engaging in “bike culture” because they are adopting the styles and norms of aggressive riders for the sake of being aggressive and edgy, rather than out of necessity.
Before the advent of popular legitimate online music services, I worried that the lack of the services would turn young music listeners towards a life of expecting all downloads for free, and not understanding that recording artists might want to make a living from their work. (This attitude persists, but hopefully is not the dominant one amongst today’s youth.)
Today, New York City and its urban cyclists face a similar crossroads. Will the crackdown on traffic code violations come along with continuing progress towards a complete, safe, viable cycling infrastructure? Will cyclists have the space and respect that we need to be one of three coequal classes of users of the public space along with pedestrians and motorists? If so, then I would expect reckless cycling to decrease at the same rate that infrastructure makes compliance with all regulations safer and more efficient than recklessness.
If, however, the vociferous bike lane opponents get their wishes and start to rip out the nascent bike infrastructure, this will become a fruitless crackdown that might only serve to delegitimize bicycling as a method of transportation in New York City. (Fortunately for cycling advocates, this week has seemed to establish that Anthony Weiner is not likely to succeed Michael Bloomberg as the next mayor of New York.)
Cyclists and policymakers should learn from the music industry: the violations of law occur because compliance is largely impossible. Legal opportunities to purchase usable digital music downloads have likely had a far larger impact on P2P usage than copyright infringement suits filed against file sharers. A cycling infrastructure where bike lanes aren’t systemically blocked by parking, standing and turning vehicles and where lanes don’t end abruptly to force cyclists into traffic will be more effective at encouraging safe, respectful cycling than a crackdown. Preventing encroachments and respecting the cyclists’ space to be able to ride safely is the only way to encourage cyclists to respect other users of the city’s public space.

Not all is fair in bo.lt and links

Brian Morissey, Digidaily, Publishing in the Remix Era “The latest exhibit is page-sharing service Bo.lt. The pitch is it’s “YouTube for web pages.” It sounds benign, but the results could be scary for publishers. Bo.lt lets anyone dump a URL into the platform, and then start editing a web page for sharing. The result: the New York Times story on President Obama’s Medicare panel? Change the headline. Better yet, take out the comments. Also, let’s strip out the related. Now it’s ready for sharing to the world — on a user’s own Bo.lt URL. Oh, and there’s no easy way for The New York Times to block its content from Bo.lt.”
Or better yet, take a look at the same article, shared on Bo.lt by David Berkowitz, More BS from Digiday: Publishing in the Remix Era.
Now go back to the original. And the bo.lt link.
Who expects this to last long in its present form?
Bo.lt appears to be copying the entire web page, reproducing the entire work, presenting it in its original form and letting users modify the content, creating a derivative work. Can anyone make a non-frivolous argument that this specific behavior is protected by fair use?
The purpose and character of the use is commercial. Even though users may have an academic or creative purpose for using the service to transform works, on a large scale basis, the service is backed by venture capital, so it would seem to be meant to make money without any specific pedagogical or analytical goals.
The nature of the works copied will be articles by major newspapers, magazines and literary sites. (Who else would we expect to bring any eventual litigation?)
The amount of the work copied is generally the entire work, which isn’t always a barrier to a finding of fair use, but not particularly favorable for Bo.lt.
Is the work transformative? There is an interesting application for linking and commenting that might draw the ire of web publishers that should be protected by fair use, but Bo.lt is probably insufficiently transformative. Yes, it allows its users to change the text of pages they share, but it doesn’t recontextualize the copyrighted material in any significant way. The pages capture the entire page source site, rather than just article text to put into a new context. The annotations are integrated with the text to change the text into a derivative work, rather than to stand alone in any way as annotations.
And even if this kind of reproduction was judged to be fair use, Bo.lt is likely to run head-on into trademark infringement. Since the page reproduces logos and branding completely with only subtle hints to the user-generated changes, readers are likely to be confused about Since many Internet users are now used to link shorteners, particularly for Twitter users, there can be some confusion as far as what is a canonical link and what is reframing.
SharedCopy is a more interesting service, because it allows its users to annotate web pages with more transparency. Even though SharedCopy is copying entire web pages, it is distinguishing the annotations from the original author’s text. However, it is copying entire pages and republishing articles outside of login/paywalls for users to share. Is it necessary for SharedCopy to copy the entire web page to allow users to link, annotate and comment on pages?
Flipboard and Readability are also doing interesting things with contextualizing and reformatting full text of web pages, but generally more for private personal use, so there is little republishing. And Readability and Flipboard are both attempting to work with publishers to license uses to provide the best experience for their users.

Surprise: Authors Like Copyright

The Authors Guild, via Scott Turow, Paul Aiken and James Shapiro, published an Op-Ed in the New York Times today wondering if Shakespeare would have been able to succeed as a playwright and author without the ability to earn money from his works: Would the Bard Have Survived the Web? “At day’s end, actors and theater owners smashed open the earthenware moneyboxes and divided the daily take. From those proceeds dramatists were paid to write new plays. For the first time ever, it was possible to earn a living writing for the public. Money changed everything. Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft.”
Shakespeare created his works in late sixteenth and early seventeenth centuries, a century before the Statute of Anne and the first copyright. So copyright wasn’t the motivator for Shakespeare to write, but the ability for the author and the performers to make a living from their work.
Julie Hollar, writing for FAIR notes that Shakespeare’s work may not have even been possible due to copyright: Would the Bard Have Survived U.S. Copyright Law? “Shakespeare’s classics Romeo and Juliet, Othello, As You Like It and Measure for Measure, among others, were based on works of fiction published in the decades before Shakespeare’s career. They thus would have been illegal under current U.S. copyright law, which keeps works out of the public domain for 70 years after the death of the author, or a total of 95 years for works for hire. Copyright protection for decades after Shakespeare’s death would have had no impact on his ability to produce work and limited impact on his incentive to do so–while the inability to retell contemporary stories would have directly restricted his creativity.”
But if Shakespeare published a full century before copyright and yet somehow managed to have sufficient incentive to create, doesn’t that mean that copyright is far from the only incentive to create?
In the centuries since the Statute of Anne, copyrights now belong more to entities other than individual authors. Individual copyrights are increasingly packaged as assets to generate profits, often for entities who purchased the copyright from the author. The question isn’t not: how to we manage to ensure that copyright owners maximize their profits? Rather, shouldn’t the Authors’ Guild be asking, how do we create incentives for authors? How do we use copyright to maximize value to our Copyright has managed to do this, but is a consistent movement towards stronger copyrights a movement towards creating a vibrant culture?

Second Circuit: FCC Indecency Rules Are Still Too Vague

The Second Circuit ruled this week that ABC stations should not be fined for violations of the prohibition on broadcast indecency for an episode of NYPD Blue “that depicted an adult woman’s nude buttocks for slightly less than seven seconds.” The court found that the FCC regulations prohibiting indecent speech on broadcast that were unconstitutionally vague in Fox v. FCC were still too unconstitutionally vague. ABC v. FCC

“Indeed, there is no significant distinction between this case and Fox. In Fox, the FCC levied fines for fleeting, unscripted utterances of ‘fuck’ and ‘shit’ during live broadcasts. Although this case involves scripted nudity, the case turns on an application of the same context-based indecency test that Fox found ‘impermissibly vague.’ According to the FCC, ‘nudity itself is not per se indecent.’ The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is unconstitutionally vague. Fox’s determination that the FCC’s indecency policy is unconstitutionally vague binds this panel.” (Citations omitted.)

David Oxenford, Broadcast Law Blog: Court of Appeals Throws Out FCC Fines in NYPD Blue Case “We have likely not heard the end of the indecency story yet. These decisions may yet end up back in the Supreme Court for consideration of the constitutional issues. So stay tuned as these issues are sorted out.”
Adam Bonin, Daily Kos: Courts: FCC can’t ban partial nudity from primetime, “Another victory for the First Amendment, and a defeat for the pearl-clutchers who still insist that America will go to ruin if there’s an occasional flash of nudity on network tv.”