Johann Sebastian Bach may have died 268 years ago, but does legal discord still prevail over the ownership of his musical works? It may, particularly if computers play a part.
Earlier this month, James Rhodes— a British classical pianist who has attracted increasing public attention, not just for his virtuosity but also his harrowing personal story of childhood sexual abuse — posted a video on Facebook of his performance of Bach’s Partita No. 1 for keyboard, published in 1726. But shortly after the social media post went up on its site, Facebook silenced 47 seconds of it because Sony Music Entertainment claimed copyright on the work.
To decompose this claim requires pulling a stop on this legal instrument: Rest assured that Bach’s music, enshrined in the classical canon, also rests square in the public domain.
But, as it turns out, Sony holds copyrights on Bach recordings by legendary pianist Glenn Gould (1932-1982), and protections of these derivative works can be enforced under the law. That may explain, for a few bars, why Sony tried to put a rest to Rhodes’ Facebook video with a take-down notice.
Still, the matter remains as muddled as a modern orchestra performing without a maestro. Rhodes’ video also was a derivative work, because he, too, performed on the piano and he didn’t play Sony’s music in the background, meaning there doesn’t seem to be a viable infringement claim against him. At least he thought so.
But after Rhodes, a Warner Bros. recording artist, tried to appeal Sony’s claim to Facebook, the online giant denied him once again.
Reasonable people may differ, but, as described by the Electronic Freedom Foundation, Facebook’s disharmony with the pianist may be blamed on machines and not discerning men and women. The Menlo Park, Calif.,-based company employs automated software to process take-down notices filed by companies and individuals. Computers likely scanned registered recordings in a database, finding 47 seconds of matching material. A tone-deaf algorithm, playing solo and without human oversight, silenced a human expression, a virtuoso’s interpretation of a masterwork more than two centuries old. The legality of this may be as complex as an augmented 13th chord.
That’s because the 1998 U.S. Digital Millennium Copyright Act purportedly modernized copyright for the 21st century, requiring take-down notices to be sent with wording, insisting that the claim was issued with a “good faith belief” of impermissible use of copyrighted material. Failure to follow this procedure can leave the copyright holder liable for misrepresentation.
That Facebook take-down notice, as issued to Rhodes, surely stated it was made with a “good faith belief.” That’s because corporate lawyers know better: The DMCA requires this, because it makes nearly impossible any attempt by a plaintiff alleging misrepresentation, if disputing this element is the only remedy for frivolous infringement claims.
In Lenz v. Universal Music Corp., the U.S. Court of Appeals for the Ninth Circuit expanded the DMCA definition to try to fix this issue. The appellate judges required copyright holders to perform a fair-use analysis in their infringement determinations before issuing take-down notices.
But here’s the caveat: §512(f) imposes liability on only those who “knowingly materially represent that material or activity is infringing.” Therefore, to find a copyright holder liable for misrepresentation a jury would have to find the copyright holder formed a subjective good faith belief that the infringing material did constitute fair use and sent the take-down notice anyway.
Proving subjective belief creates a high burden. Therefore, a plaintiff like Rhodes could only prevail where there is evidence Sony entirely or almost entirely failed to consider fair use, while any oversight or carelessness would not be considered.
But what if that oversight or carelessness resided in a computer with faulty algorithmic engineering? How then could a court or jurors determine a copyright holder’s liability when the subjective “good faith” belief whirs in a computer processor? Can courts even get past the DMCA’s “good faith” requirement with automated systems if their capacity for bad faith can’t be proven? Do big companies like Sony and Facebook actually want to keep humans out and their computers and algorithms in and humming on take-down claims because they, effectively, have a classic, blame-the-machine legal defense and safe harbor? Shades of Hal 9000, the Matrix, and Skynet.
There’s more software to sing about in this saga, though, as Rhodes took to Twitter-shaming and emailing human beings to restore his video clip — moves that helped a musician who has been written up in major newspapers and whose difficult life story has been the subject of a British documentary. He says he’s still upset with his Facebook-Sony experience, which hit the right note after all with his clip posted in full, because he asks what happens to artists with less persistence and clout than he has?
EFF also took up his cause, in part, because the organization that advocates for humans’ civil liberties on the internet has expressed concern about new laws in the European Union that would mandate uses of automated filters for various reasons. The EU Copyright Directive, notably its articles 11 and 13, may “break the internet,” critics contend, and many more creatives, besides Rhodes, may have reason to complain, loudly.