Monday, October 28, 2013

Copyright Extension And Patent Reform Issues In Entertainment And Retail

15 Years Ago, Congress Kept Mickey Mouse Out Of The Public Domain. Will They Do It Again?
(By Timothy B. Lee, Washington Post, 25 October 2013)

For most of history, a great character or story or song has passed from its original creator into the public domain. Shakespeare and Charles Dickens and Beethoven are long dead, but Macbeth and Oliver Twist and the Fifth Symphony are part of our shared cultural heritage, free to be used or re-invented by anyone on the planet who is so inclined. But 15 years ago this Sunday, President Clinton signed the Sonny Bono Copyright Term Extension Act, which retroactively extended copyright protection. As a result, the great creative output of the 20th century, from Superman to "Gone With the Wind" to Gershwin’s "Rhapsody in Blue," were locked down for an extra 20 years.  It was a windfall to the families and corporations that owned these lucrative copyrights. But it meant these iconic works would be off-limits to those who wanted to reuse or reinvent them without permission. And hundreds of thousands of lesser-known works aren’t available at all, because there's no cost-effective way to obtain permission to republish them.

The copyright extension Clinton signed will expire in five years. Copyright holders like the Disney Corp. and the Gershwin estate have a strong incentive to try to extend copyright extension yet further into the future. But with the emergence of the Internet as a political organizing tool, opponents of copyright extension will be much better prepared. The question for the coming legislative battle on copyright is who will prevail: those who would profit from continuing to lock up the great works of the 20th century, or those who believe Bugs Bunny should be as freely available for reuse as Little Red Riding Hood.
Today, copyrights can easily last for more than a century. Things were very different when America was founded. In America's original copyright system, protection only lasted for 28 years. By the mid-20th century, Congress had doubled the maximum term to 56 years. Then, in 1976, Congress overhauled the copyright system. Instead of fixed terms with a maximum of 56 years of protection, individual authors were granted protection for their life plus an additional 50 years, an approach that had become the norm in Europe. For works authored by corporations—Hollywood blockbusters, for example—copyright terms were extended to 75 years.  If not for the CTEA, Steamboat Willie, the first Mickey Mouse cartoon, would have fallen into the public domain at the end of 2003.
If not for the CTEA, Steamboat Willie, the first Mickey Mouse cartoon, would have fallen into the public domain at the end of 2003. That would have allowed anyone to use the character in their own works. (Disney)
The 1976 legislation granted a retroactive extension for works published before the new system took effect. The maximum term for already-published works was lengthened from 56 years to 75 years. That meant that any work that was still under copyright in 1978, when the new system took effect, was eligible for an additional 19 years of protection. Without the term extension, works published between 1922 and 1941 would have fallen into the public domain between 1978 and 1997.
Instead, those works remained under copyright, providing a windfall to the owners of iconic copyrighted works such as the original Mickey Mouse cartoon, "Steamboat Willie," and George Gershwin's "Rhapsody in Blue." When the 1990s arrived, the holders of those older copyrights began agitating for another extension. Copyrighted works from the 1920s were scheduled to begin falling into the public domain again in 1998, and copyright interests wanted Congress to stop that from happening.  "There was not a single argument that actually can stand up to any kind of reasonable analysis," says Dennis Karjala, a law professor at Arizona State who emerged as a de facto leader of the opposition to the law. The supporters of the law, Karjala says, were "basically the Gershwin family trust, grandchildren of Oscar Hammerstein, Disney, others of that ilk"—that is, holders of copyrights in old works that were on the verge of expiring.. (Dennis Karjala)

Supporters of the extension pointed to Europe. In 1993, the European Union added 20 years to the term of European copyrights. Under European law, American authors would only enjoy longer copyright terms in Europe if the United States followed Europe's lead and adopted "life plus 70" copyright terms.  "It didn't seem like there was any reason why American creators should be at a disadvantage vis a vis their European counterparts," says Preston Padden, who represented Disney in the late 1990s and has taught communications law at the University of Colorado Law School. "The old disparity invited mischief, like American creators artificially creating legal domiciles for Europe in order to gain the benefit of the longer license term." And, advocates said, if Congress was extending terms for new works, it would only be fair to extend terms for existing works as well.
Former Sen. Hank Brown (R-Colo.). Former Sen. Hank Brown (R-Colo.). (Photo courtesy of Brownstein Hyatt Farber Schreck)Critics pointed out that extending copyright terms retroactively wouldn't benefit the public. After all, William Faulkner, George Gershwin and Walt Disney had died decades earlier. Granting longer copyright terms for their existing works couldn't cause them to produce any more masterpieces.  "To suggest that the monopoly use of copyrights for the creator's life plus 50 years after his death is not an adequate incentive to create is absurd," wrote Sen. Hank Brown (R-Colo.) in a 1996 report for the Senate Judiciary Committee. "The real incentive here is for corporate owners that bought copyrights to lobby Congress for another 20 years of revenue—not for creators who will be long dead once this term extension takes hold."  But Brown was in the minority. Indeed, Brown says, he was the committee's only opponent. "I thought it was a moral outrage," says Brown, who left the Senate in 1996 and now practices law in Colorado. "There wasn't anyone speaking out for the public interest."

Few members of Congress were opposed to the legislation, but Karjala was working to rally opposition to the legislation from outside of Congress. The Copyright Office asked for comments on extending copyright terms in 1993. Karjala says he drafted a letter opposing the idea and got "30 or 40" of his fellow legal scholars to sign it. When Congress took up the idea in 1995, people encouraged Karjala to once again take a leading role. "I kind of groaned to myself," Karjala says. "I'm not an activist type of personality, but I thought, 'I guess I've started on this thing. I'm the only one who seems to be sufficiently energized about it.'"
If President Clinton hadn't signed the CTEA, Superman would be scheduled to fall into the public domain at the end of this year.If President Clinton hadn't signed the CTEA, Superman would be scheduled to fall into the public domain at the end of this year.
To actually stop the legislation, Karjala needed powerful allies. And there were established groups that he thought should be helping out. This was long before reddit and Wikipedia helped create a grassroots copyright movement. But Karjala says that non-profit groups representing professions such as librarians and historians had traditionally served as public-interest watchdogs on copyright issues. And those groups had lobbyists that could have helped stop copyright terms from being extended.  But his efforts to recruit them to fight term extension fell flat. With the bill looking unstoppable, most of these groups chose to make peace with the forces pushing the bill. Karjala says they were "bought off" by minor changes to the legislation that addressed specific issues that concerned them. "In exchange they agreed not to oppose the rest of the bill," he says.  Brown did his best to slow progress on the bill. "I noted the absence of a quorum several times," he says, a tactic that delayed consideration of the legislation. "I did my best to extend the debate."
Without the CTEA, Disney's Snow White and the Seven Dwarves would have fallen into the public domain at the beginning of this year. (Disney)Without the CTEA, Disney's Snow White and the Seven Dwarves would have fallen into the public domain at the beginning of this year. (Disney)But the biggest reason the fight lasted as long as it did—legislation was introduced in 1995 but it didn't pass until 1998—was because the restaurant industry saw the campaign for term extension as an opportunity to advance their own pet issue: getting a broader exemption for small bars and restaurants that played copyrighted music over the radio.  "This was a hostage situation," says Peter Jaszi, a law professor at American University who also testified against extending terms. Bars and restaurants didn't care about term extensions, but they threatened to bottle up the proposal unless they got their way.  Negotiations over the hospitality industry's demands slowed the passage of the Copyright Term Extension Act (CTEA). But eventually, policymakers agreed to pass the Fairness in Music Licensing Act, which addressed the hospitality industry's concerns, as a companion bill. When bars and restaurants dropped their opposition to term extension, the legislation's remaining opponents weren't powerful enough to stop it. It passed both houses of Congress on Oct. 7, 1998, and was signed by President Clinton on Oct. 27.
Bill Clinton (AFP PHOTO / Saul LOEBSAUL LOEB/AFP/Getty Images)Bill Clinton (AFP PHOTO / Saul LOEBSAUL LOEB/AFP/Getty Images)
The retroactive extension of copyright terms soon drew a legal challenge. Eric Eldred was an Internet publisher who specialized in publishing works that were in the public domain. Represented by legal scholar Larry Lessig, Eldred became the lead plaintiff in a lawsuit challenging the constitutionality of retroactively extending copyright terms.  The Constitution requires that copyrights be granted for a limited time; Lessig argued that if Congress has the power to retroactively extend copyright terms, it effectively has the power to grant unlimited copyright terms on the installment plans. Ironically, the legal battle against the CTEA drew much broader public support than the legislative battle had. "Once Larry Lessig brought the constitutional challenge, all these same people came out of the woodwork," Karjala says of people who hadn't engaged on the issue when the legislation was before Congress. "They started writing amicus briefs to argue the Supreme Court should rule it unconstitutional."
Larry Lessig (Photo by Simon Bierwald)Larry Lessig (Photo by Simon Bierwald)One brief was signed by some of the nation's most prominent economists, including Nobel Laureates Milton Friedman, Ronald Coase, and Kenneth Arrow. The Constitution requires that copyright protection promote the progress of science, but the economists pointed out that the CTEA was hard to justify in these terms. Copyright terms were already so long, they argued, that an additional 20 years would provide only minimal incentive to produce new works. More to the point, retroactively extending protection for existing works couldn't possibly encourage the creation of new works.  But these arguments fell on deaf ears. Writing for a seven-member majority in 2003, Justice Ruth Bader Ginsberg ruled that Congress had broad discretion to choose copyright terms and to retroactively extend them as it saw fit. So long as the terms remained finite, the court held, they satisfied the court's "limited times" requirement.

The big question now is whether incumbent copyright holders will try to get yet another extension of copyright terms before works begin falling into the public domain again on January 1, 2019.  For now, Hollywood is staying mum; a spokesman for the Motion Picture Association of America declined to comment on its plans. We weren't able to find any sign the topic has come up on Capitol Hill. But most of the experts we spoke to said the stakes are so high that a renewed lobbying push is almost inevitable.  "If Hollywood and their allies want to do this, they're going to have to start doing it now," says Chris Sprigman, a legal scholar at New York University. "I would imagine there are discussions going on." Sprigman predicts a debate over term extension over the next five years will look very different than it did in the 1990s. "People are paying attention," he says. "There's a coalition now" that's likely to oppose longer terms.  Indeed, Sprigman sees public outrage over the 1998 extension as a catalyst for the copyright reform movement that came of age with the protest that stopped the Stop Online Piracy Act last year. "None of that would have been possible without the loss in the CTEA and Eldred," he argues. 
One advantage opponents will have this time around is better arguments and evidence. Public debate over the last extension has stimulated increased academic research into the economics of the public domain, and as a result, we know a lot more about the costs of longer copyright terms than we did 20 years ago.  One striking example: a study looked at the availability of books published in the last 200 years on Surprisingly, the study found that there are more printed books available from the 1880s than the 1980s. When books fall into the public domain, as works from the 1880s have, anyone is free to re-publish them. In contrast, books from the 1980s are still in copyright, so only their original copyright holder can give permission to distribute them. As a result, older books are actually easier to get online than newer books are. That means that the 1976 and 1998 extensions have deprived a generation of readers of easy access to books from the 1920s, 1930s, 1940s and 1950s.

(Paul J. Heald)(Paul J. Heald)Not only have many copyright holders failed to keep their older works in print, but there are now many books whose copyright holders can't be identified at all. In many cases, the original copyright holder is dead and records about who now holds the copyright aren't available. These "orphan works" have become a serious problem for projects such as Google Books, which aims to digitize books and make them available to the public. Google can't obtain the rights to reproduce these books at any price because it can't figure out who it needs to negotiate with. The older a work is, the more likely it is to be orphaned, so copyright extensions have made the problem much worse.  "There's no evidence suggesting that a longer term is going to produce any more art, literature," Sprigman says. "The only reason to extend the term is to give private benefits to companies like Disney or Time Warner that have valuable properties like Mickey Mouse or famous films."  But copyright, he says, is "not supposed to be about corporate welfare for Disney." Over the next five years, we'll find out if Congress agrees.

Patent Law Is So Broken That Casinos, Supermarkets, Realtors Demand Change
(By Timothy b. Lee, Washington Post, 28 October 2013)
In the last few years, patent litigation has become such a widespread problem that industries that traditionally had nothing to do with the patent system are demanding that Congress take action. The latest sign of that is a letter asking Congress to make it easier to invalidate low-quality patents.  The letter is signed by some high-tech lobbying groups that have long been active on patent issues. But, surprisingly, the letter also drew support from distinctly low-tech sectors of the economy, including casinos, supermarkets, chain restaurants, airlines, and the printing industry.  "It's important to recognize that the problem of patent trolls are no longer limited to technology companies," says Whit Askew of the American Gaming Association, which represents casinos and the manufacturers of gambling devices. "Over the last couple of years, we've unfortunately been bit by the patent troll lawsuit bug, where frivolous lawsuits have been filed against many in our industry."

These predominantly brick-and-mortar business groups aren't just demanding patent reform in the abstract. Askew and other letter signers are endorsing expansion of the clumsily-named "covered business method" program, which provides an expedited process for challenging patents at the U.S. Patent and Trademark Office (PTO). That's significant because expansion of the CBM program has drawn the ire of some patent-rich software companies, including Microsoft, IBM, and Adobe.  Opponents of expanding the CBM program argue that procedural reforms, such as allowing technology vendors to intervene on behalf of their customers and forcing defeated patent plaintiffs to pay defendants' legal bills, will be sufficient to bring the patent litigation crisis under control. And they worry that the defendant-friendly provisions of the CBM program will make it too difficult for the owners of legitimate patents to enforce their rights.

But Monday's letter, whose more than two dozen signers include groups representing advertising agencies, publicly-owned power plants, real estate agents, hotels, and retailers, argues that these process-oriented reforms aren't sufficient to solve the patent troll problem.  "Companies need an effective alternative for challenging validity [of patents] outside of the courtroom," the letter argues. The CBM program "gives threatened companies a substantially less expensive way to challenge low quality patents. Other programs for challenging patent validity at the PTO do not allow the PTO to consider whether the patent is abstract, vague, or too broad," which are common problems with patents used by trolls, the letter argues.  Industry groups that signed the letter say they were motivated to do so by a dramatic increase in the frequency of frivolous patent lawsuits. "We are now seeing [real estate] brokers receive demand letters for use of common technologies like scanner-copiers and website alert technologies," says Gary Thomas, president of the National Association of Realtors.  "I'm a food lawyer," says Erik Lieberman of the Food Marketing Institute, which represents grocery wholesalers as well as supermarkets. "Members bring us issues that impact them. A couple years ago they start coming to me saying 'look this entity we've never heard of is sending us a demand letter asking us for $300,000 or $500,000 claiming we're violating their patent.'"

Lieberman says many of the patents covered common technologies like the store locator function on a grocery store's website or the use of QR codes in advertisements. Lieberman said that patent threats have now cost some of his larger clients millions of dollars in legal fees and staff time. And the burden can be especially serious for smaller supermarket chains that don't have anyone on staff with experience handling patent issues.  For both Lieberman and the American Gaming Association's Askew, low costs are one of the CBM program's key advantages. The program "gives threatened companies a substantially less expensive way to challenge" low-quality patents, Askew says. It can take years for a court to reach a final ruling on a patent case. In contrast, the CBM program can end a lawsuit — and permanently eliminate a low-quality patent — in a matter of months, saving hundreds of thousands of dollars in legal fees.

The letter also notes that under the program, "small businesses are able to pool their resources in order to pay to have a [patent troll]'s patent reviewed." That makes the program a particularly potent weapon against trolls that send letters to a large number of defendants seeking nuisance settlements.  Lieberman says that in the grocery business, "the profit margin is well under 1 percent," so the costs of patent litigation "get passed down to consumers."  The industries that signed the letter collectively have significant lobbying muscle. They could provide a counterweight to patent-rich companies who are squeamish about seeing their patent portfolios subjected to the kind of serious scrutiny the CBM program could make possible.


Sunday, October 20, 2013

The Aesthetic Politics Of Filming Black Skin

(By Ann Hornaday, Washington Post, 17 October 2013)
In one of the first scenes of early Oscar favorite “12 Years a Slave,” the film’s protagonist, Solomon Northup, played by Chiwetel Ejiofor , is seen at night, sleeping alongside a fellow enslaved servant. Their faces are barely illuminated against the velvety black background, but the subtle differences in their complexions — his a burnished mahogany, hers bearing a lighter, more yellow cast — are clearly defined.  Mother of George,” which like “12 Years a Slave” opens on Friday, takes place in modern-day Brooklyn, not the candlelit world of 19th-century Louisiana. But, like “12 Years a Slave,” its black stars and supporting players are exquisitely lit, their blue-black skin tones sharply contrasting with the African textiles they wear to create a vibrant tableau of textures and hues.

“Mother of George” and “12 Years a Slave” are just the most recent in a remarkable run of films this year by and about African Americans, films that range in genre from the urban realism of “Fruitvale Station” and light romantic comedy of “Baggage Claim" to the high-gloss historic drama of “Lee Daniels’ The Butler” and the evocatively gritty pot comedy “Newlyweeds.” The diversity of these films isn’t reflected just in their stories and characters, but in the wide range of skin tones they represent, from the deepest ebonies to the creamiest caramels.  The fact that audiences are seeing such a varied, nuanced spectrum of black faces isn’t just a matter of poetics, but politics — and the advent of digital filmmaking. For the first hundred years of cinema, when images were captured on celluloid and processed photochemically, disregard for black skin and its subtle shadings was inscribed in the technology itself, from how film-stock emulsions and light meters were calibrated, to the models used as standards for adjusting color and tone.
That embedded racism extended into the aesthetics of the medium itself, which from its very beginnings was predicated on the denigration and erasure of the black body. As far back as “The Birth of a Nation” — in which white actors wearing blackface depicted Reconstruction-era blacks as wild-eyed rapists and corrupt politicians — the technology and grammar of cinema and photography have been centered on the unspoken assumption that their rightful subjects would be white.  The result was that, if black people were visible at all, their images would often be painfully caricatured (see Hattie McDaniel in “Gone With the Wind”) or otherwise distorted, either ashy and washed-out or featureless points of contrast within the frame. As “12 Years a Slave” director Steve McQueen said in Toronto after the film’s premiere there, “I remember growing up and seeing Sidney Poitier sweating next to Rod Steiger in ‘In the Heat of the Night,’ and obviously [that was because] it’s very hot in the South. But also he was sweating because he had tons of light thrown on him, because the film stock wasn’t sensitive enough for black skin.”

MontrĂ© Aza Missouri, an assistant professor in film at Howard University, recalls being told by one of her instructors in London that “if you found yourself in the ‘unfortunate situation’ of shooting on the ‘Dark Continent,’ and if you’re shooting dark-skinned people, then you should rub Vaseline on their skin in order to reflect light. It was never an issue of questioning the technology.” In her classes at Howard, Missouri says, “I talk to my students about the idea that the tools used to make film, the science of it, are not racially neutral.”  Missouri reminds her students that the sensors used in light meters have been calibrated for white skin; rather than resorting to the offensive Vaseline solution, they need to manage the built-in bias of their instruments, in this case opening their cameras’ apertures one or two stops to allow more light through the lens. Filmmakers working with celluloid also need to take into account that most American film stocks weren’t manufactured with a sensitive enough dynamic range to capture a variety of dark skin tones. Even the female models whose images are used as reference points for color balance and tonal density during film processing — commonly called “China Girls” — were, until the mid-1990s, historically white.  In the face of such technological chauvinism, filmmakers have been forced to come up with workarounds, including those lights thrown on Poitier and a variety of gels, scrims and filters. But today, such workarounds have been rendered virtually obsolete by the advent of digital cinematography, which allows filmmakers much more flexibility both in capturing images and manipulating them during post-production.

Cinematographer Anastas Michos recalls filming “Freedomland” with Julianne Moore and Samuel L. Jackson, whose dramatically different complexions presented a challenge when they were in the same shot. “You had Julianne Moore, who has minus pigment in her skin, and Sam, who’s a dark-skinned guy. It was a photographic challenge to bring out the undertones in both of them.”  Michos solved the problem during a phase of post-production called the digital intermediate, during which the film print is digitized, then manipulated and fine-tuned. “You’re now able to isolate specific skin tones in terms of both brightness and color,” says Michos, who also shot “Baggage Claim,” “Jumping the Broom” and “Black Nativity,” due out later this year. “It gives you a little bit more flexibility in terms of how you paint the frame.”
Daniel Patterson, who shot “Newlyweeds” on a digital Red One camera, agrees, noting that on a recent shoot for Spike Lee’s “Da Blood of Jesus,” he was able to photograph black actors of dramatically different skin tones in a nighttime interior scene using just everyday house lamps, thanks to a sophisticated digital camera. “I just changed the wattage of the bulb, used a dimmer, and I didn’t have to use any film lights. That kind of blew me away,” Patterson says. “The camera was able to hold both of them during the scene without any issues.”  The multicultural realities films increasingly reflect go hand in hand with the advent of technology that’s finally able to capture them with accuracy and sensitivity. And on the forefront of this new vanguard is cinematographer and Howard University graduate Bradford Young , the latest in a long line of Howard alums — including Ernest Dickerson, Arthur Jafa and Malik Sayeed — who throughout the 1990s deployed the means of production to bring new forms of lyricism, stylization and depth to filmed images of African Americans.  At Howard, Young says, “the question of representation was always first and foremost. . . . When bias is built into the negative, how does that affect the way we see people of color on screen? People like Ernest, Malik and A.J. [found] a sweet spot. There’s always an inherent bias sitting over us. We’ve just got to climb through it and survive, and that’s what’s embodied in the cinematography.”

Whether working on film stock for Dee Rees’s “Pariah,” high-definition video for Ava DuVernay’s “Middle of Nowhere,” or with digital Red cameras for Andrew Dosunmu’s “Restless City” and “Mother of George,” Young is finding a newly rich visual language, one that’s simultaneously straightforward, soft, stylish and intimately naturalistic. His work with Dosunmu — for which Young won the Sundance cinematography award this year — is especially expressive, with the camera coming in and out of focus and often capturing the actors in moments of stillness, like works of sculpture.  “I was trying to be assertive with the imagery as flamboyant, space-age and assertive as African American textiles have been for 10,000 years,” Young explains, adding that he lit “Mother of George” to accentuate blue skin tones and illuminated scenes from above, to suggest natural sunlight. “It takes us back to Tuaregs and Niger and nomads, because the people in the film are kind of like nomads,” he says. “That’s why the top light is always so cool, and their hands are always stained with something. Because that’s what nomadic people do.”

Solomon Northup is a nomad as well in “12 Years a Slave,” in which he and his fellow laborers — often abused, but shown in all their physical types and tonal subtleties — stand in symbolic rebuke to a cinematic apparatus that habitually ignored or despised them. Like their brethren in “Mother of George” and other denizens of this year’s “black new wave,” these characters are claiming aesthetic space that they’ve long been denied.  That space, at long last, seems endless: Young suggested that his next step with Dosunmu might be photographing a movie in 3-D. Having transformed the black body in a two-dimensional format, he says, “let’s work on the perception of the black body in space. Instead of having depth of field, let’s actually take control of each field.” It’s tempting to imagine that Northup and his peers would agree — literally, metaphorically and, not least of all, cinematically.