Copyright

It's been a strange couple of weeks in the world of copyright. First off: "Nearly two dozen Republican lawmakers wrote to Disney CEO Bob Chapek last month, declaring their opposition to renewing the company's copyright on Mickey Mouse, which is set to expire in 2024. The lawmakers noted in their letter that ‘the Constitution gives Congress the authority to determine the length of time to protect copyrights. Further, it explicitly states that copyrights may not be permanent. Yet Disney's long history of lobbying on this issue suggests that is its goal.'"[ref]Hawley introduces bill to strip 'woke' Disney of special copyright protections[/ref] The problem is, I know of no such proposal, or even hints of such a proposal, from Disney or anyone else. I'm in regular contact with the folks at the Copyright Alliance. If something were in the works, they'd know about it, and so would I. There are no such proposals, much less an actual bill. And believe me, if they had intended to do so, they would have already started. As reported by the HuffPost: "James Grimmelmann, an intellectual property expert at Cornell Law School, described opposition to Disney's copyrights as ‘harmless grandstanding' against something that's not even happening. ‘There is no political coalition pushing strongly for further extensions; the sky did not fall on the copyright industries when works from the 1920s started entering the public domain again,' Grimmelmann said in an email. ‘Being against copyright extension is like being against Prohibition. Nobody's out there campaigning hard to bring it back. The Mouse doesn't care.'"[ref]Josh Hawley jumps on anti-Disney bandwagon with copyright bill[/ref] I stated way back in 2014, and many times since on this blog, that Mickey (or at least Steamboat Willie) will go into the public domain on January 1, 2024, and there will be no proposals to extend copyright terms further.[ref]Mickey's Headed to the Public Domain! But Will He Go Quietly?[/ref] The sound policy reasons for extending copyrights in 1998, namely to bring them on a par with Europe, are no longer present and nothing has changed. Next up, Senator Josh Hawley, who supposedly clerked for Supreme Court Justice John Roberts and taught Constitutional Law,[ref]Wikipedia - Josh Hawley[/ref] filed this doozy of a bill[ref]Hawley - A Bill to address the duration of copyright, and for other purposes[/ref] the "Copyright Clause Restoration Act of 2022." The bill proposes two major changes: 1) limiting copyright terms going forward to two 28 year terms, which will require the filing of a renewal request and 2) making these change retroactive to certain companies which qualify. To which Prof. Paul Goldstein, an intellectual property expert at Stanford Law School immediately blasted as "blatantly unconstitutional."[ref]Sen. Josh Hawley's Move to Strip Disney's Copyrights Called 'Blatantly Unconstitutional'[/ref] Why is this being proposed? According to an interview Hawley gave to Fox News: "The age of Republican handouts to Big Business is over. Thanks to special copyright protections from Congress, woke corporations like Disney have earned billions while increasingly pandering to woke activists. It's time to take away Disney's special privileges and open up a new era of creativity and innovation."[ref]Hawley introduces bill to strip 'woke' Disney of special copyright protections[/ref] Please. Copyrights are not "special privileges." Copyrights are Constitutional rights enumerated in Article 1 Section 8 of the Constitution.[ref]Article 1 Legislative Branch Section 8 Powers of Congress[/ref] Surely a Constitutional Law professor would know that. Also, Disney's copyrights are not "special copyright protections." Their copyrights last just as long as every other copyright holder. No more, no less. Which is exactly what this bill seeks to change and is clearly in retaliation for the Disney company taking a political position of which Hawley disagrees. Has he read the 1^st amendment? "Official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected right,' (citation omitted), and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions,… for speaking out."[ref]Hartman v. Moore 547 U.S. 250 (2006)[/ref] But first things first. Reducing current copyright terms is simply bad policy. The United State is signatory to multiple treaties which mandate minimum copyright terms far in excess of Hawley's bill.

• Berne Treaty (ratified 1988)
• Trade Related Aspects of Intellectual Property Rights (TRIPS signed 1994)
• USMCA (United States-Mexico-Canada Agreement effective July 1, 2020)

The Berne and TRIPS treaties require minimum copyright protections of life of the author plus 50 years after death.[ref]Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971), Agreement on Trade-Related Aspects of Intellectual Property Rights (unamended)[/ref] The USMCA provides for a minimum of Life + 70 years.[ref]Article 20.62 USMCA[/ref] Not only did Hawley vote in favor of USMCA, he issued a press release praising it.[ref]Senator Hawley Statement on USMCA Passage[/ref] Passing this bill would of course lead to retaliation against the US by other countries, and in the case of TRIPS, countries could bring proceedings before the World Trade Organization for sanctions. Not to mention the loss of revenue to Americans. As reported by Variety: "‘Copyright contributes $1.5 trillion to the U.S. economy and employs 5.7 million Americans,' said Keith Kupferschmid, CEO of the Copyright Alliance, which represents copyright holders in Washington, D.C. ‘This legislation would harm those millions of everyday Americans in all 50 states who rely on copyright for their livelihoods in creative industries largely dominated by independent and small businesses.'"[ref]Sen. Josh Hawley's Move to Strip Disney's Copyrights Called 'Blatantly Unconstitutional'[/ref] Beyond the problem of copyright duration, the bill with its "renew to extend" requirement, violates the Berne Treaty's prohibition against requiring formalities as a condition for copyright protection.[ref]Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) at Article 5[/ref] Plus, what does this provision do to the right of authors to terminate and reclaim their work under 17 USC Section 203? So let's go to the "too clever by half" part of the bill. The part that targets Disney, without saying "Disney." Hawley acknowledges he can't just target Disney. According to the HuffPost: "Hawley acknowledged that Disney's response to the Florida law inspired his legislation but stressed the bill did not solely target Disney — since a law punishing an individual entity could be unconstitutional. ‘It applies to any corporation with over $150 billion in revenue,' Hawley, a former constitutional law professor, told HuffPost. ‘You can't target just one company.'"[ref]Josh Hawley jumps on anti-Disney bandwagon with copyright bill[/ref] But that's only part of the story. Because that's exactly what it does. The bill has two requirements:

• Must have a market capitalization in excess of $150 billion; AND
• "Is classified under North American Classification System Code 5121 or 71"

Let's starts with the first part. There are 71 companies that have a market cap above $150 billon. These are the ones to my eye that would be affected by a retroactive reduction of copyright length listed in descending order of market cap:

• Apple
• Microsoft
• Alphabet (Google)
• Amazon (MGM)
• Meta (Facebook)
• Tencent
• Walt Disney
• Oracle
• Adobe
• Comcast (NBC)

Next up, the company must also engage in a business classified under Code 5121. That is the code for "establishments primarily engaged in the production and/or distribution of motion pictures, videos, television programs, or commercials; in the exhibition of motion pictures; or in the provision of postproduction and related services."[ref]NAICS Code Description - 5121 - Motion Picture and Video Industries[/ref] This means the bill now might apply to three companies:

• Amazon (MGM)
• Walt Disney
• Comcast (NBC)

But note, this must be the establishment's primary business. I think that Amazon's primary business is that of online retailer, not producer of motion pictures. Also Comcast's primary business is the provision of cable and internet services, not the production of television programs. So the only business that clearly qualifies? The Walt Disney Company. And here's the kicker: NACS code 71. This is the code for: "The Arts, Entertainment, and Recreation sector includes a wide range of establishments that operate facilities or provide services to meet varied cultural, entertainment, and recreational interests of their patrons. This sector comprises (1) establishments that are involved in producing, promoting, or participating in live performances, events, or exhibits intended for public viewing; (2) establishments that preserve and exhibit objects and sites of historical, cultural, or educational interest; and (3) establishments that operate facilities or provide services that enable patrons to participate in recreational activities or pursue amusement, hobby, and leisure-time interests."[ref]NAICS Code Description - 71 - Arts, Entertainment, and Recreation[/ref] In other words, theme parks. The only company on the list that qualifies? The Walt Disney Company. This make the legislation a Bill of Attainder, prohibited by Article 1 Section 9 of the Constitution. Surely a Constitutional Law professor would know this. "The prohibition embodied in this clause is not to be narrowly construed in the context of traditional forms but is to be interpreted in accordance with the designs of the framers so as to preclude trial by legislature, which would violate the separation of powers. The clause thus prohibits all legislative acts, ‘no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.'"[ref]Bills of Attainder[/ref] "The two main criteria that the courts use to determine whether legislation is a bill of attainder are (1) whether "specific" individuals, groups, or entities are affected by the statute, and (2) whether the legislation inflicts a "punishment" on those individuals."[ref]Bills of Attainder: The Constitutional Implications of Congress Legislating Narrowly[/ref] I'd say both prongs are satisfied. This retroactive reduction of copyright terms also violates the "takings" clause of the 5^th Amendment as recounted in my lengthy previous blog post on the subject.[ref]Why Reducing Current Copyright Terms Would be Unwise... And Unconstitutional[/ref] So, the "Copyright Clause Restoration Act of 2022" is unconstitutional because it:

• Constitutes an unlawful retaliation for protected 1^st Amendment speech
• Constitutes a Bill of Attainder
• Constitutes an unlawful taking of property in violation of the 5^th Amendment, and probably
• Violates the equal protection clause of the 14^th

You mean a Constitutional Law professor didn't realize that? Here's the other part he apparently has never taken into account, since the bill is silent on this part – if he is successful, the US will owe the Walt Disney Company "due compensation" in the amount of money lost from having their copyrights prematurely forced into the public domain. How much money might that be? Let's see, if copyright are retroactively capped at 56 years, that means that every Disney movie made before 1965 would go into the public domain immediately upon passage. What movies would be on that list? Here is a partial list. A full list would run 77 entries.[ref]List of Disney Films[/ref] 1937: Snow White and the Seven Dwarfs 1940: Pinocchio 1940: Fantasia 1941: Dumbo 1942: Bambi 1949: The Adventures of Ichabod and Mr. Toad 1950: Cinderella 1950: Treasure Island 1951: Alice in Wonderland 1953: Peter Pan 1954: 20,000 Leagues Under the Sea 1955: Davy Crockett, King of the Wild Frontier 1955: Lady and the Tramp 1956: Davy Crockett and the River Pirates 1957: Old Yeller 1959: Sleeping Beauty 1960: Kidnapped 1960: Pollyanna 1960: The Sign of Zorro 1960: Swiss Family Robinson 1961: One Hundred and One Dalmatians 1961: The Absent-Minded Professor 1961: The Parent Trap 1963: Son of Flubber 1963: The Sword in the Stone 1963: The Three Lives of Thomasina 1964: The Moon-Spinners 1964: Mary Poppins 1964: Emil and the Detectives 1965: The Monkey's Uncle 1965: That Darn Cat! The list does not include cartoon shorts featuring Mickey, Minnie, Donald Duck, Goofy, Pluto, etc. So how much money might the US Government have to pay the Walt Disney Company? That would be the revenue generated by the movies, including merchandise sales, and probably a slice of theme park attendance world-wide, streaming revenues from Disney+ - and the list goes on and on. And let's not forget that Disney owns Marvel. So all the Marvel characters who debuted before 1965 would also go immediately into the public domain. This would include Spider-Man,[ref]Wikipedia - Spider-Man[/ref] Fantastic Four,[ref]Wikipedia - Fantastic Four[/ref] Iron Man,[ref]Wikipedia - Iron Man[/ref] Captain America,[ref]Wikipedia - Captain America[/ref] Thor,[ref]Wikipedia - Thor (Marvel Comics)[/ref] Hulk,[ref]Wikipedia - Hulk[/ref] The Avengers,[ref]Wikipedia - Avengers (comics)[/ref] etc, etc… So what's the total? Billions? Disney paid $4.05 billion just to acquire the Star Wars franchise.[ref]Disney to Acquire Lucasfilm Ltd.[/ref] Star Wars itself would be forced into the public domain a little more than 12 years down the road under Hawley's proposal.[ref]Wikipedia - Star Wars[/ref] And every year would see a new round of premature copyright terminations, which would each trigger a new round of compensation due to Disney. Could this mean trillions shelled out by the American taxpayer? And to what end? To punish Disney for speech Hawley doesn't like? But here's the really crummy part. Hawley himself is an unrepentant copyright infringer. He has appropriated a photograph of him taken by a photographer for Politco, and plastered it all over coffee mugs and other items to raise money for his campaign. Politico has sent him a cease and desist. "Stop merchandising a widely published photo taken before the storming of the U.S. Capitol on Jan. 6, 2021, showing you clenching your fist in support of the mob. Stop being part of a long line of celebrities and politicians who think they can misappropriate images and music created or owned by others without permission, credit or compensation."[ref]Sen. Hawley Merchandising That Photo Ain't Fair Use[/ref] Hawley has refused to stop selling the items.[ref]Josh Hawley refuses to stop selling mug featuring pre-riot Jan. 6 fist pump[/ref] He claims it's fair use. It's not. He also claims it's part of his 1^st Amendment rights. It's not. But in the end, the good news is that this bill has no chance of advancing. "It's unlikely that Hawley's bill will advance... [t]he industry has drawn support for its copyright lobbying on both sides of the aisle. Sen. Patrick Leahy (D-VT), who chairs the Senate Judiciary subcommittee on intellectual property, and Sen. Thom Tillis (R-NC), its ranking member, are both viewed as big boosters for the entertainment industry when it comes to fighting piracy and bolstering copyright protections. Both were honored by the Motion Picture Association in March."[ref]Josh Hawley Targets Disney With Bill To Reverse Its Copyright Protections[/ref] So the "Copyright Clause Restoration Act of 2022" will remain a cynical publicity stunt, from someone who should have known better.

On April 26, 2022, the District Court in the Southern District of New York issued a rather remarkable ruling. Unremarkable was the amount of damages that was awarded, also unremarkable was that a permanent injunction was issued. What was remarkable was that the injunction also ordered ISP's to block access to the site, now and in the future to all new URL's the pirate site might hide under. It also ordered VPN's (virtual private networks) and CDNs (Content Delivery Networks) like the notorious Cloudflare,[ref]Cloudflare: The "Now You See Me, Now You Don't" of the Internet[/ref] not to assist the Defendants in avoiding the injunction, and most remarkably ordered credit card companies and payment assisters, like PayPal, to withhold money due to the pirate site and pay it to the Plaintiffs.[ref]21 Civ. 11024 (KPF) As of the writing of this post there is no WestLaw citation available[/ref] As reported by Torrent Freak: "Last year, companies including United King Film Distribution, DBS Satellite Services, and Hot Communication filed three copyright infringement lawsuits in the US District Court for the Southern District of New York. Each complaint targeted a specific pirate streaming site – Israel-tv.com, Israel.tv and Sdarot.tv – the latter being Israel's most popular pirate streaming site with millions of visitors each month… Late last week, the plaintiffs won all three lawsuits via default judgments. The court ordered the operators of Israel-tv.com, Israel.tv and Sdarot.tv to each pay $7,650,000 in statutory copyright infringement damages related to 51 registered works owned by the plaintiffs. While almost $23 million in damages isn't an inconsiderable amount, the injunctions handed down in all three cases are something never seen before in a TV/movie piracy case."[ref]US Court Orders Every ISP in the United States to Block Illegal Streaming Sites[/ref] In the first instance, every ISP in the United States has been ordered to block access to the pirate sites, (Israel-tv.com, Israel.tv and Sdarot.tv) and redirect to a "landing page" informing the attempted user of the injunction.[ref]21 Civ. 11024 (KPF) at 6-7[/ref] This includes any "Newly Detected Websites" that the pirate site might relocate to.[ref]Id.[/ref] Removing any doubt, the Court attaches to the order "Exhibit B" listing the ISP's who must comply, but also "includes any and all other ISP providing service in the Unites States."[ref]Id.[/ref] Here's a partial list. The actual list runs on for nine pages. Next up in the Court's order are: "[T]hird parties providing services used in connection with Defendants' operations -- including, without limitation, ISPs, web hosting providers, CDN service providers, DNS service providers, VPN service providers, domain name purchasing service, domain names privacy service, back-end service providers, affiliate program providers, web designers, shippers, search-based online advertising services (such as through-paid inclusion, paid search results, sponsored search results, sponsored links, and Internet keyword advertising), any banks, savings and loan associations, merchant account providers, payment processors and providers, credit card associations, or other financial institutions, including without limitation, PayPal, and any other service provider which has provided services or in the future provides services to Defendants and/or the infringing Website (including without limitation those set forth in the list annexed and made Exhibit C annexed hereto) (each, a "Third Party Service Provider") -- having knowledge of this Order by service, actual notice or otherwise be and are hereby permanently enjoined from providing services to the Website (through any of the domain names set forth in Exhibit A hereto or at any Newly-Detected Websites."[ref]Id. at 7 (emphasis added)[/ref] Those entities specifically mentioned by the Court are: Google Mycloud.my Facebook Name.com Cloudflare Visa Mastercard Roku Apple App Store Amazon.com App Store Joel A. Boyle Jewella Privacy Service, Inc.Namecheap, Inc.Vocalnet.co.UK Wow. That's some order. What's behind this is that any Court that issues an injunction also has the authority on those parties who may be in "active concert or participation" in assisting the subject of an injunction to avoid or hinder enforcement of the injunction. Something that, in the past, has put companies like Cloudflare on the hotseat with the Judges overseeing the case. "There is no real dispute that CloudFlare had knowledge of the TRO at least as of May 14, 2015 and that it subsequently permitted an anonymous user to establish a free account that configured the domain name… to use CloudFlare's services. CloudFlare's authoritative domain name server translates [the domain name] as entered in a search browser into the correct IP address associated with that site, thus allowing the user to connect to the site. Connecting internet users to [the domain name] in this manner benefits Defendants and quite fundamentally assists them in violating the injunction because, without it, users would not be able to connect to Defendants' site unless they knew the specific IP address for the site. Beyond the authoritative domain name server, CloudFlare also provides additional services that it describes as improving the performance of the [infringing] site… Going forward, however, CloudFlare is now aware that it is bound by the injunction so any future failure to comply might expose it to a contempt finding that could result in the award of attorney's fees or other consequences."[ref]Cloudflare: The "Now You See Me, Now You Don't" of the Internet citing Arista Records v. Tkatch et al Case 15-CV-3701 U.S. District Court for the Southern District of New York, 2015[/ref] Lastly, the Judge orders all payment processors, who might otherwise pay money to the infringing sites to pay them to the Plaintiffs instead until "Plaintiffs have recovered the full payment of the monies owed to them by Defendants" and that "Plaintiffs shall have the ongoing authority to serve this Order on any party controlling or otherwise holding such accounts, including but not limited to banks, PayPal or other merchant account providers, payment providers, or third party processors."[ref]21 Civ. 11024 (KPF) at 9-10[/ref] Remember, that's nearly $23 million in damages. What really will be interesting is the response by entities that claim they don't encourage or profit from piracy, like Google (we're just an algorithm) or Cox Communications (we're just a pipeline) to being specifically mentioned in a Court order as having to cease and desist from aiding an adjudged pirate.