Digital copyright laws must protect content creators
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In a recent Hill op-ed, Public Knowledge's Charles Duan and R Street's Sasha Moss call for the Supreme Court to weigh in on a ten-year-old copyright case involving notice and takedown, copyright and a dancing baby. But their piece dances around inconvenient truths, and is predicated upon a rather “transformative” use of reality. 

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“The 1841 case of Folsom v. Marsh helped outline the determining factors of fair use: the use must be transformative in nature, the amount of the work taken must be limited and it shouldn’t undermine the original work’s commercial value,” Duan and Moss wrote.

 

But the decision in Folsom v. Marsh doesn’t in fact mention “transformativeness.” The court held:

In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

While Duan and Moss may view transformativeness as the new black of fair use, examination of the actual fossil record reveals a high degree of inventiveness in connection with their claim about historical antecedents. While there may be something of an evolution from the supersession of objects in Folsom to the present notion of transformativeness, the suggestion that the Court in Folsom articulated a “transformative standard” for fair use most certainly rewrites history.

Duan and Moss continued, “The Constitution provides limited protections for copyrighted works. As technology has become more complex, Congress and the courts have found ways to accommodate artists who need protection, while ensuring that core protections like fair use remain strong.”

Let's start with the sleight of hand effected by the suggestion that the Constitution provides only "limited protection" for copyright works. In fact, the Constitution provides for “exclusive” rights for authors, albeit for “limited times.” The language employed by Duan and Moss is not a matter of mere syntax formed by the exigencies of time and space; it is a core element of a fictional narrative about the constitutional foundations of copyright that the authors hope will shape its future. 

Next up is the suggestion that Congress has succeeded in “accommodat[ing] artists who need protection.” That, too, is a core part of a false narrative. While Congress may have sought to provide effective protection for creators, the reality is that for musicians and recording artists in particular, the potential of the digital market has largely failed to materialize.

In fact, the overwhelming number of uncontested notices of clear infringement (more than 20 million each day) illustrate that we have not found an effective solution. Copyright owners describe efforts to address online infringement as  “a whack-a-mole problem” because that’s exactly what it is. Yet Duan and Moss appear to feel that it should actually be much worse.

As if to illustrate the point, they follow this up with a reference to “the takedown industry” — as if this unduly permissive process has spawned nothing more than a rent-seeking business built on the failings of a poorly worded law. But what exactly is this putative “takedown industry”? Primarily, it’s creators and content owners struggling to keep up with rampant piracy and unauthorized uses that threaten their livelihoods. But again, for the R Street/Public Knowledge narrative to work, they need to dehumanize this struggle for sustaining creators.

While space constraints don’t permit a full exploration of the issue in here (but see my colleague Kristian Stout’s in-depth take here), the notion that the law requires consideration of fair use prior to the sending of a takedown notice is the very question presented in the Lenz case, and hardly settled law. 

The authors concluded, “Were it not for Prince’s ‘purple purge’ and one very enthusiastic mother, this seemingly run-of-the-mill notice-and-takedown likely would not have crossed a court’s radar. Now, it’s time for the Supreme Court to weigh in and strike the proper balance.”

Putting aside the fact that Lenz was litigated not due to “one very enthusiastic mother" but rather one very enthusiastic organization (the Electronic Frontier Foundation) “salivating over getting their teeth into UMG yet again,” and recognizing “an excellent vehicle for trying to change the legal standards and public debate,” Duan and Ross have finally offered something on which we can all agree: the need to strike the proper balance. 

Let's just hope that everyone recognizes that such balance is best calibrated with eyes open and through a far more realistic Lenz.

Neil Turkewitz is a 30-year veteran of the Recording Industry of America, serving most recently as its international executive vice president. He is also the senior policy counsel for Intellectual Policy and the Digital Economy, International Center for Law & Economics.


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