A Big Victory For Fair Use Via South Park, What What (In The Butt), Numa Numa, Afro Ninja, Et Al.
from the what-what?-fair-use dept
A couple years ago, we wrote about the bizarre case filed by Brownmark Films, who produced the "viral" video "What, What (In The Butt)," against South Park for doing a parody of the video.Brownmark appealed the ruling, and the 7th Circuit has wasted very little time in affirming the lower court ruling, which it calls "well-reasoned and delightful." The appeals court did differ slightly on the reasons a court can dump a case pre-trial when there's clearly fair use, but its quibble is really procedural, concerning which specific process should be used to claim fair use and get a bad case rejected. Either way, the key point stands: you can make your fair use claims upfront, and in truly egregious cases, courts don't have to go through a costly trial. In fact, the court notes that this makes sense, specifically to avoid copyright trolling behavior where defendants feel the need to settle rather than deal with the costs of fighting a bogus lawsuit. This is good news.
In fact, as Paul Levy notes, this may be the first time that an appeals court has specifically used the term "copyright troll," lending additional credence to that phrase:
We noted during oral arguments that such a broad discovery request, surely entailing expensive e-discovery of emails or other internal communications, gives Brownmark the appearance of a "copyright troll."Similarly, it highlights why such copyright trolling is so problematic:
...infringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.This seems like a very useful precedent to cite in other such cases.
The court also goes through the fair use determination and says that not only was it proper to drop the case pre-discovery, but the fair use reasoning was perfectly sound. And here, we learn that the 7th Circuit Justices enjoy themselves some viral videos:
Moreover, the episode places Butters' WWITB video alongside other YouTube hits including, among others, the Numa Numa Guy, the Sneezing Panda and the Afro Ninja.There's a sentence I never thought I'd see in a judicial ruling. There's also a lengthy footnote that, believe it or not, discusses historical South Park episodes that demonstrates that the character Butters "has repeatedly demonstrated a lack of understanding of sex," and goes on to name the specific episodes, including "Cartman Sucks" and "Stupid Spoiled Whore Video Playset."
No matter what, this ruling is a strong victory for fair use... and just in time for our 1pm Q&A discussion about the book "Reclaiming Fair Use." Perhaps the court was just looking to provide some discussion material for us.
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Filed Under: 7th circuit, butters, copyright troll, fair use, parody, south park, viral video
Companies: brownmark
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The beuracracy is expanding to support the expanding beuracracy.
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Re: The beuracracy is expanding to support the expanding beuracracy.
(dangit! not awake enough to spell yet.)
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Better imho
Season 12: Over Logging
Season 10: Make Love, Not Warcraft
Season 5: Scott Tenorman Must Die
I can't believe I still watch that show , given the age I am, but they sure can troll !
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Re: Better imho
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i need about tree-fiddy
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Awesomeness.
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Re: i need about tree-fiddy
Best ever.
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Best ever indeed.
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Re: i need about tree-fiddy
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Both highlights of the recent seasons, but nowhere near my all-time favourites.
For example, though Butters is one of the best characters on the show, Krazy Kripples was a the definitive "kids meet street culture" episode over Bottom Bitch, I think :)
"We'll have a lock-in at the rec center!"
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I feel the need to watch them now
I really enjoyed that twist at the end.
For internet people , not yet properly exposed to the comedy of SP.
"Over Logging" & "Make Love, Not Warcraft" are hilarious for them.
As for the other episodes mentioned..... Great taste in episodes
BUT ..... did we all forget ?
Season 11: Cartman Sucks
don't wanna post spoiler , but remember
Cartman taking photos of Butters....
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Re: I feel the need to watch them now
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Re: Better imho
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Hey Copyright Maximalists
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Re: Hey Copyright Maximalists
Nope. It's a great opinion for defendants with a strong fair use argument who are facing a nuisance infringement suit. The opinion is interesting procedurally too, since the court converted the Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, but without giving the plaintiff the benefit of briefing the issues as such.
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Re: Re: Hey Copyright Maximalists
The first word in your response ('Nope') would almost make me think you were claiming to be a copyright maximalist as that is more who I was poking fun at. From your history I would actually not think of you as one. More so as somebody who puts forth an honest analysis of the law involved in and surrounding copyright issues.
I am glad to see you welcome the opinion =)
And I always welcome your well reasoned (even if I disagree with reasons) debate. Arms, legs, ships, and space stations above the AC ad homs I am used to seeing round these here parts of the interwebs.
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Subtle cash flow analysis nit-pick
Actually courts feel the additional revenue comes at too great an expense to their reputation and legitimacy.
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Fair use in parody has been long held.
Let's tar and feather the copyright system because one moronic video producer doesn't get it.
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The system favors the guy with the most money who can just break the other guys bank and then gloat. Seems like a broken system.
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Don't blame copyright for the broken legal system. That's your choice.
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The fact there is a case where the court issued a decision without having to have a long drawn out process is actually a good thing. It gives some glimmer of hope that Fair Use can be considered before the bills mount to stupid levels, meaning the law in this area might actually be even and fair.
I was unaware that I was the lynchpin to the broken legal system, I will get right on making my choice known and making everyone behave like grownups right away.
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Second, the legal system in the US is as a result of the way the laws are written, and the way people use them. It's not an issue of copyright, it's an issue of a "sue them all" mentality that exists in the US. Suggesting that copyright is broken because of expensive court cases is entirely misleading, you are blaming the outcome and not the cause.
As a US citizen, as a voter, you bear some responsibility for the current system. You can vote to support people who are pushing to change the legal system to get rid of much of the wasteful stuff, or you can vote for those who support the status quo. That's your choice.
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I would gladly put those people in office if my one vote was capable of that, but here in reality I have to live with the decisions of the majority of voters.
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I would gladly put those people in office if my one vote was capable of that, but here in reality I have to live with the decisions of the majority of voters.
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You don't know much about American politics do you? Rest assured, if someone is pushing to change things away from the status quo, the cartels (copyright and otherwise) will be certain to make sure that person doesn't make it to the ballot.
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What an infantile way to describe business.
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"RESPECT MY AUTHORITAAAHHHH!!"
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But the entertainment cartels buy off government officials to look the other way and its okay.
Drug cartels use guns and murder.
Entertainment cartels use lawsuits and misinformation.
They operate like a cartel, they are a cartel...
Do you have a better term for a group of companies in the same business who band together to get better treatment by hook or by crook?
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Your statement is complete nonsense. Perhaps you're not familiar with TAC's commenting, but it's pretty obvious that he's been having "the discussion" for quite some time and has come to a conclusion based on that. It's arrogant of you to assume he's just walked in the door and taken a side.
"Second, the legal system in the US is as a result of the way the laws are written, and the way people use them. It's not an issue of copyright, it's an issue of a "sue them all" mentality that exists in the US. Suggesting that copyright is broken because of expensive court cases is entirely misleading, you are blaming the outcome and not the cause."
You're accusing him of conflating two issues incorrectly, but you're actually doing that yourself. The copyright system isn't broken because of the legal system or the US's litigious nature, it's broken because it has been continuously and vigorously abused by corporations and their pet politicians for many decades. The broken legal system has simply made their work easier.
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That just leaves me to insult the AC, and my work here is done.
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Unfortunately, it's the Techdirt Way to blame the whole system for one person's idiocy.
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Wait, what? Isn't that the RIAA's policy to tar and feather? As in, one person downloads a song; assume the industry's doomed and everyone else is a filthy pirate? Therefore we have to jack up the statutory penalties, blank media levies and copyright lengths?
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Opinion's references to other South Park episodes and other viral videos
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Re: Opinion's references to other South Park episodes and other viral videos
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Re: Opinion's references to other South Park episodes and other viral videos
People died for our freedoms. They lost family, friends, loved ones, just to have some greedy prick try to profit under the very flag that stands for life, liberty, and the pursuit of happiness by stealing from the same people who provide the inspiration for the content creators.
If you can't figure out how to make money in this day and age, you don't deserve to be in business. Plain and simple.
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Viacom MAFIAA
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"Your Honor, listening to a song before making a purchase decision is fair use. Music is the only product in the world that the purveyor expects you to purchase without letting you see or sample it in full before you buy and with no refund even if it fails to perform as advertised. The MAFIAA cannot show that me downloading that song reduced their financial return from it because I had no intention of purchasing it without first previewing it in full to decide if it was worth the price. Their failure to adapt to a changing marketplace and failure to produce valuable content has reduced their financial return, not the fact that I can preview their songs for free."
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Fair Use is a "defense", and specifically an "affirmative defense", that is raised by an alleged infringer in his/her "answer" to a copyright holder's "complaint". IOW, it is presented at the outset of court proceedings during the initial pleadings by the plaintiff and defendant.
"Either way, the key point stands: you can make your fair use claims upfront, and in truly egregious cases, courts don't have to go through a costly trial."
As noted above, fair use is an affirmative defense that is first raised in a defendant's "answer" to a plaintiff's "complaint". Even in non-egregious cases discovery may create an evidentiary record where a case is disposed of pre-trial because no contested issues of fact remain for consideration by the "trier of fact", which is typically a jury.
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The issue is whether it is only a defense or a right. What the court is starting to recognize is that it's a right.
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