The Dream of Just Copyright

Freedom isn't free, Martin Luther King emphasized. It requires a fight for justice in the face of unjust laws. But he couldn't have imagined what another set of laws would mean for the spreading of that idea on the internets.

In 2010 I reported on the strange freak show of a struggle for ownership of recordings of King's "I Have a Dream" speech. Because the speech was not "published" in a traditional way, courts have ruled that video and audio of King's famous oration belongs to the King family and to its rights protector, the London-based company EMI Music Publishing, which is the largest music publisher in the world. (Because of a 2011 acquisition of EMI from Citigroup, the speech is technically in the legal possession of Sony Music Publishing, the Estate of Michael Jackson, Jynwel Capital of Hong Kong, the Blackstone Group, David Geffen, and the Mubadala Development Company, which is the government of Abu Dhabi's investment arm.)

What that means is that as a law-abiding individual interested in watching King's speech, you will be hard pressed to find a full version of the speech online. You can however purchase a licensed copy on DVD for $20. If you're a law-abiding media outlet, you could be paying well into the thousands for the license, although the numbers are unclear. In lawsuits against infringers, the King family has won undisclosed sums from CBS and USA Today. When CNN, ABC, and MSNBC air the speech in full today, they will also be paying unknown sums in licensing fees to the King family, with the help of big sponsors like Bank of America. (Perhaps it's worth noting that in 2011, the bank was fined $335 million by the Justice Department over charges of lending discrimination against blacks and Hispanics.)

In January, an internet rights group born out of the SOPA fight posted a video of the speech to YouTube and Vimeo—a novel kind of civil disobedience. "Had SOPA and PIPA passed last year," Fight for the Future wrote on YouTube, "you could have gone to jail for sharing this video, and entire websites could have been shut down just for linking to it. This speech is too important to be censored by a broken copyright system."

The Fight for the Future clip was only up on Vimeo for a few hours before it was removed for violating terms of service. But in an indication of the peculiarities of copyright law and its algorithmic enforcement, the video is still up on YouTube. Evan Greer, Fight for the Future's campaign manager, says that the group has neither heard from EMI nor YouTube. A minor and perhaps accidental victory—but not exactly one worthy of King.

But other copies are still being removed, says FFtF, which has encouraged others to help spread the speech online. Today, when one user named Dario uploaded a copy of FFtF's video, he instantly received a takedown notice via YouTube's Content ID system:

"Any teenager should be able to go on YouTube and find this speech in its entirety," Greer wrote in an email. "Broken copyright laws should never keep Dr. King's words from being heard, especially in a day and age when they are so terrifyingly relevant."

Though two courts have ruled in favor of the King family's copyright, no court has examined whether the speech may be used without permission under "fair use." Recent jurisprudence has recognized fair use of copyrighted material if it is used for nonprofit historical or educational purposes, if it is commenting on the work, or if it modifies the work enough to create something new.

But there's nothing hard and fast when it comes to fair use, something we've learned in trying to license copyrighted video for Motherboard documentaries. For example, we ultimately decided against using a clip from Terminator 2 in our documentary on drones to illustrate an interview in which someone mentions the film. That kind of use might have been "fair," as it was a commentary, but we couldn't be sure we weren't going to be entering a legal battle, and couldn't justify the high licensing fees for only a few seconds of film.

The wrinkles in copyright law also encourage unfair use, even by big Hollywood content providers. In January, songwriter Jonathan Coulton accused Glee of blatantly stealing his cover of "Baby Got Back." But Coulton had no legal leg to stand on: his cover of the song may have been legal—he paid a "compulsory licence" fee to the original songwriter, Sir Mix-A-Lot—but by law he had no copyright claims on his own rendition. Coulton didn't want money from Fox, simply acknowledgement, but his only recourse was Twitter.

Hey look, @GLEEonFOX ripped off my cover of Baby Got Back: http://t.co/7PMRY0r3. Never even contacted me. Classy.
— Jonathan Coulton (@jonathancoulton) January 18, 2013

In April, an appeals court issued a victory for fair use, when it ruled, contrary to a lower court, that Richard Prince's use of photographs of Rastafarians taken by Patrick Cariou did not completely constitute infringement because they remixed Cariou's works into something new. For his part, Prince has said that he was never commenting or responding to anything; he just wanted, he said in a court deposition, "to make great art that makes people feel good."

In the US, it's a year of new wrangling over copyright, as a 1976 revision to copyright law enables artists who recorded music that year and afterwards to begin to reclaim their copyrights from the publishing companies, as thirty-five years have passed. That's in order to "give artists an opportunity to negotiate after the value of the work has been realized," said lawyer Lita Rosario.

To promoters of the commons, other hurdles remain. Prior to that 1976 law, books and films and other artworks published in 1956 would have entered the public domain on January 1, 2013, where they would be "free as the air to common use." Now they only will be eligible for public domain in 2052. In the EU the law is different—thousands of works of authors who died in 1942 entered the European public domain on January 1. Meanwhile, in 2012 the Supreme Court ruled that Congress can actually take back works that are already in the public domain.

In a recent paper, Paul J. Heald, a professor at the University of Illinois law school used newly-collected data from Amazon and YouTube to illustrate how copyright "seems to make works disappear." It included this eye-popping chart, which interestingly shows that Amazon sells many more books published before 1923 than those published after 1923.

The last serious revision to copyright law was the now infamous Digital Millennium Copyright Act of 1998, under which Aaron Swartz was prosecuted for pilfering a giant digital pile of academic papers. Academics have complained that they can't easily spread their own ideas in ways that help to nourish the arts and sciences. Rappers, who rely on samples, have often cried foul over copyright.

It's the sort of law that, for instance, makes VCs nervous about investing in music companies, gives Pandora what it calls unfair compeition from radio stations, and makes [unlocking your phone a jailable offense](http://www.law.cornell.edu/uscode/text/17/1204 This). (The Library of Congress made an exemption so that jail-breaking your iPhone in order to run software not authorized by Apple is legal—but not on iPads, and only until 2015.)

Would thinking about copyright benefit from considering its application to two different types of work? Consider that a recording by Simon and Garfunkel or George Clinton—or even a viral video with a cartoon cat—is a matter of "free" culture, but it also tends to fall under stricter ownership rules. Clearer cases involve "performances" like Kings—and perhaps the academic work that activists like Aaron Swartz struggled to distribute: these serve the public good in a different way, and inform the way we learn about history and other things.

The push for new, wide-scope digital-friendly copyright laws in the US has begun, thanks in part to the Register of Copyrights Maria A. Pallante, who has called for Congress to create "the next great Copyright Act." Robert Goodlatte (R-Va.), the chairman of the House Judiciary Committee, has vowed to conduct a comprehensive review of our nation's copyright laws to determine whether they are "still working in a digital age."

In the meantime, Julie Ahrens, the director of copyright and fair use at the Center for Internet and Society, has called for creative flexibility and tolerance in the face of old laws and copyright-protecting algorithms, As she wrote in The Art Newspaper in June,

Indeed, even after the defeat of SOPA, the recording industry vowed to continue its fight. In January, former Democratic Senator Christopher Dodd, who left his job on Capitol Hill a few years ago to become the chairman of the Motion Picture Association of America, warned his former colleagues to pay attention to future copyright battles online.

"Those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake," he told lawmakers in a Fox News interview. "Don't ask me to write a check for you when you think your job is at risk and then don't pay any attention to me when my job is at stake." This week, the leading anti-piracy software trade group, BSA, announced its new president: Victoria Espinel, who until two weeks ago was President Obama's copyright czar.

Earlier this year the Obama administration began work to revive what Evan Greer, the online activist, said was "one of the worst parts of SOPA," Section 201, which would make streaming copyrighted content a felony. "We need an Internet that's free and open as a platform for expression and organizing," he wrote, "not censored to protect the profits of the content industry."

When Greer uploaded an unlicensed version of King's speech to Fight for the Future's YouTube channel earlier this year—one of a few extant copies on YouTube that are possibly breaking the law until at least 2038—he appended a famous line from King: "one has a moral responsibility to disobey unjust laws."

That line comes from Letter from a Birmingham Jail, written four months before he spoke on the Mall, after he was arrested for "parading without a permit."

Curiously, although King's "open letter" was reportedly published into the public domain, King would later publish it with a copyright notice. That leaves the question of its unlicensed publication wide open, and, like so much intellectual property law, ripe for another fight about what's just and what's not.