Signs of Intelligence

Hooray for Representatives Ted Lieu and Blake Farenthold.

Yesterday they introduced a bill in Congress that would prevent any state (or smaller political unit) from requiring encryption backdoors. And yes, their bill is a direct response to the proposed legislation in California and New York that I complained about on Tuesday.

Note by the way, that Rep. Farenthold is a Republican. The bill faces an uphill battle, and early bi-partisan support certainly won’t hurt its chances.

That said, strictly speaking the “ENCRYPT Act of 2016” wouldn’t actually block the proposed laws in California and New York. Those don’t require smartphone manufacturers to include backdoors, they just ban the sale of phones without backdoors in their respective states. I suppose it’s possible that Apple and Google could pull their phones out of the California and New York markets. It’s also possible they could produce a “vulnerable” OS version for sale in those states. But I suspect that just the threat of suspending sales would bring in enough muscle from the telecom companies to squash the bills.

Seriously, can you imagine Verizon, Sprint, T-Mobile, and the rest quietly accepting laws that would prevent them from selling iPhones? They might–might–let Android go, but not iOS.

Note, by the way, that I didn’t include AT&T on that list. As security guru Bruce Schneier pointed out, AT&T CEO Randall Stephenson says that tech companies shouldn’t be in the position of deciding whether to include encryption, with or without backdoors, in their products.

Schneier suggests that the NSA and FBI are steering policy at AT&T; whether he’s right or not, I do have to wonder if the prospect of losing Apple sales in two enormous markets would change Stephenson’s mind.

Stay tuned–and drop your representative a note asking them to support Lieu and Farenthold’s bill.

Meanwhile, Warner/Chappell is giving up their efforts to hold onto the copyright to “Happy Birthday”. According to The Hollywood Reporter, Warners has agreed to a settlement that would release the song to the public domain. An agreement to request a judicial declaration that a work is in the public domain is unusual, to say the least, so it’s possible that the settlement might fall apart at a hearing in March.

But Warner’s decision that the potential income from the song over the next fifteen years wasn’t worth the risk of being penalized for improperly collecting licensing fees if they had lost the class action lawsuit shows rare intelligence from a big media company–a group best known for aggressively hoarding copyrights.

Copy, Copy?

Interesting things going on in the world of copyright these days.

Rather famously, Warner/Chappell has been collecting licensing fees for Happy Birthday for years, earning as much as $2 million a year. (Note that the copyright used as the basis of their business applied only to the lyrics; the tune has been in the public domain for decades.)

One amusing side effect of Warner/Chappell’s licensing policies has been the creation of a number of scenes in movies and television shows where celebrants sing songs written for the show without ever addressing how everyone knows a song. For example.

Less amusingly, lawsuits have ambled slowly through the court system. The latest, filed in 2013, has finally concluded, and the result, in short, is that Happy Birthday is now officially in the public domain.

If I’ve followed the ruling correctly (IP lawyers, feel free to jump in with corrections or clarifications), it boils down to three main points: The lyrics have been traced back to multiple uncopyrighted publications prior to the 1935 publication that was the basis of Warner/Chappell’s claim; the court has ruled that there is insufficient evidence to show that the 1935 copyright applies to the lyrics, rather than to its new piano arrangement; and there is no evidence that shows that rights to the lyrics were ever transferred from the song’s creators to Summy Co. (and thus to Warner/Chappell when Summy Co. became part of Warner/Chappell).

The laws surrounding copyright have changed many times since Happy Birthday was written, so I’m not sure there’s a lesson here for modern composers and lyricists beyond the obvious “keep your documentation trail clean,” but it’s nice to know that we can sing in peace, even on camera.

Moving on.

One of the more contentious aspects of the Digital Millennium Copyright Act has been its takedown provisions. In essence, the DMCA allows copyright holders to notify content providers when a work infringes on their copyright. Providers must then immediately remove the work. (It’s not as one-sided as it sounds. There are provisions for challenging takedowns and penalties for bad-faith notifications.)

Last week saw a ruling that should cause large copyright holders to take a careful look at their DMCA notification practices. The court ruled that copyright holders must be able to show they’ve considered the possibility that a work might be permissible under the fair use exemption before submitting a notification.

“Fair use” is the concept that excerpts from a copyrighted work may be used for purposes of criticism, education, research, and a few other purposes. It’s what allows televised movie reviews to include clips from the film, Weird Al to parody popular songs, and language textbooks to include illustrative sentences from novels.

Prior to the court’s decision, someone whose work was removed following a notification could make a fair use claim in trying to have the work restored to the site. Now, copyright holders will have to consider whether the use of their material could be fair use before they issue a notification.

It’s not a major change in itself, but the implications are interesting. The definition of fair use has always been intentionally vague–I regard that as a good thing, as it leaves room for new uses without requiring constant updates to the law. To the extent that companies will have to document their decision-making processes, I can see somebody–probably several somebodies–getting rich selling software to help copyright holders make a fair use decision. Of course, such software would need to be updated in light of legal decisions affecting the definition of fair use… Sounds like the annual updates to tax preparation software, doesn’t it?

For anyone in the arts, this is going to be a fascinating area to watch.