Goldieblox May Be Right About Fair Use, But Wrong About Claiming You Need A License To Link To Its Site
from the hypocrites dept
We've already written about the dispute between Goldieblox and the Beastie Boys not once, but twice, coming down strongly on the side of Goldieblox in this dispute. However, as noted in Jeff Roberts' coverage of the case over at Gigaom, it appears that Goldieblox might want to take a closer look at their own terms of service, which makes some absolutely ridiculous and laughable claims about how you can't link to their website:
LINKS BY YOU TO THE WEBSITE. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to GoldieBlox, (b) the links and the content on your website do not suggest any affiliation with GoldieBlox or cause any other confusion, and (c) the links and the content on your website do not portray GoldieBlox or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to GoldieBlox. GoldieBlox reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.Except, there's no legal basis for this whatsoever. I can link to them here, as I have, and say things that they disagree with, and they can scream and holler about them "revoking" their license to link and it would mean absolutely nothing. Because just as you don't need a license to create a parody song, you don't need a license to link to someone's website.
Overly demanding a license or permission for things is a big problem. Goldieblox should be supported for making it clear you don't need a license for parody, but it should be called out for pretending a license is needed for linking.
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Filed Under: copyright, fair use, linking, terms of use
Companies: goldieblox
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Linking and Copyright
The latest site-blocking judgment in the UK had a brief discussion on this, but didn't reach a conclusion (finding infringement on other grounds), and there are a handful of cases pending before the CJEU.
So it isn't surprising that some people do think that you can't link without permission (whether from a copyright owner or at law). Obviously to most of us it is clear that requiring this would break large chunks of the Internet, but that doesn't always stop the courts...
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Re: Linking and Copyright
It's almost entirely settled under US law.
Perfect 10 v Amazon.com
Field v. Google
Kelly v. Arribasoft
Ticketmaster v. Tickets.com
There's a pretty long list of cases here that make it pretty damn clear that you don't need a license to link.
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Re: Re: Linking and Copyright
I'm not questioning this, I'm just curious how if this is true, there has been copyright issues when linking to infringing content. Is it country based?
(I'm thinking of that student in Britian that got in trouble for linking to websites but not actually having any infringing content on his page. Wasn't the US trying to extradite him?)
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Re: Re: Re: Linking and Copyright
I should have been clearer. There is no issue in linking to content that itself is authorized.
Linking to infringing content is a different story, but unrelated to the question of whether or not a website can offer you a license to link to their own content.
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Re: Linking and Copyright
Which is ridiculous. Even if linking did realistically constitute 'communication to the public' (which it doesn't), that doesn't stop the original author pulling or moving their work, after which the link dies and I can't be found guilty of a damn thing.
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Get in bed with an egomaniac? Pass.
20. GoldieBlox created its parody video with specific goals to make fun of the BeastieBoys song, and to further the company’s goal to break down gender stereotypes and to encourageyoung girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math.
...and you actually believe a for-profit company is creating a video out of the kindness of its own heart? Giving this company attention - and seeing how they deal with it (aka YOU CAN'T LINK ME NO WAY) is pointing to a pretty ego-centric pattern of behavior that is quite revealing. If this was a 501c3, great, no controversy, awesome...but trying to pull a fast one and say a form of advertising for a target market using a highly-recognizable song (that you can't legally license because of the band's own wishes) isn't going to pass test element #1. This isn't an expression of art that becomes a component of an advertisement. It's funny to see the claim that "Oh it's ok our mission means we can re-define what fair use means and then claim public opinion makes it so!"
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Re: Get in bed with an egomaniac? Pass.
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Re: Re: Get in bed with an egomaniac? Pass.
Fact: GoldiBlox is a for-profit entity, its very existence is to make money (otherwise it'd be a 501c3)
Fact: Test #1 for fair use is asking "Is this a work of social commentary or a work of a commercial nature?"
The cognitive dissonance here is really spectacular, and will be impressive to see the hive buzzing the same way it has with the Newegg judgment. Have I espoused that I think the above is a correct implementation of copyright law? Nope. Do I think it's the correct one in this circumstance, and will result in a denial of the judgment? Yep.
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Re: Re: Re: Get in bed with an egomaniac? Pass.
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Re: Re: Re: Get in bed with an egomaniac? Pass.
These are not mutually exclusive.
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Re: Re: Re: Get in bed with an egomaniac? Pass.
Fair use relates to copyright and creative expression. Expression only needs to be "minimally" creative to meet this standard. Generally speaking, if something is eligible for copyright protection at all, it is "art" for the purposes of fair use.
Fact: GoldiBlox is a for-profit entity, its very existence is to make money (otherwise it'd be a 501c3)
As are all of the entities who regularly use fair use (newspapers, publishers, or the label that released "License to Ill").
In fact, fair use generally looks at the use itself, not at the entities that do the using. So, if a 501c3 non-profit released the same music for sale, it would be a commercial use under the Copyright Act.
Fact: Test #1 for fair use is asking "Is this a work of social commentary or a work of a commercial nature?"
That is not the first test. The first test is: "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." As the court put it in Campbell v. Acuff-Rose:
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Re: Get in bed with an egomaniac? Pass.
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Re: Get in bed with an egomaniac? Pass.
No one has argued that. Nor does that matter in the fair use analysis.
If this was a 501c3, great, no controversy, awesome...but trying to pull a fast one and say a form of advertising for a target market using a highly-recognizable song (that you can't legally license because of the band's own wishes) isn't going to pass test element #1.
This is so wrong. First, the four factor test is a balancing test. You don't have to "pass" every test. You have to win *on balance*. Second, as we've noted directly *multiple times* commercial use quite frequently is fair use, contrary to your claims.
It's funny to see the claim that "Oh it's ok our mission means we can re-define what fair use means and then claim public opinion makes it so!"
No one is trying to re-define fair use. Their argument falls squarely within previous fair use case law.
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Re: Re: Get in bed with an egomaniac? Pass.
How can you say that intent is not going to be a determining factor when going through the four factor test? You seem to claim that the song's use in a commercial is irrelevant - I argue that the song's very existence is for the sake of a commercial, and therefore going to trigger all the wrong legal consequences for GoldieBlox. Weird Al, 2 Live Crew, etc, name a single instance where they used their parody to sell a physical product. Name one, try. Just try - you can't, because it hasn't been tested.
The conversation over at PopeHat is so much more nuanced - see what Tracy Hull cites as the actual case being discussed (that's why GoldieBlox will lose). How about you reflect upon this in the context of Tom Waits' numerous victories? Really, that should enlighten you about the trouble you're having understanding the difference between starting from art and from ripping off in the name of commerce. You're wrong here.
When their judgment gets tossed, I'll be back to allow you to explain to me the difference between "What I want to happen" versus "What reality dictates will happen" - also known as "I know who should win the Oscar, but I also know who will actually win the Oscar."
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Re: Re: Re: Get in bed with an egomaniac? Pass.
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Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
"You seem to claim that the song's use in a commercial is irrelevant". He did not. What he, and others here have claimed, is that use in commerce does not automatically cause it to fail the four factor test--your tone and general argument seems to lean very strongly in this direction. I think your own perspective is clouding your reading of other's arguments.
Your entire rebuttal boils down to: "you want this to be fair use, but you're wrong." And I can find no factual basis or appeal to authority to support your belief that this is not fair use, other than your focus on the commercial aspects, which has been widely argued here is not ENOUGH to cause the factor test to fail.
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Re: Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
Fair use. The composers of the song “When Sunny Gets Blue” claimed that their song was infringed by “When Sonny Sniffs Glue,” a 29-second parody that altered the original lyric line and borrowed six bars of the song. A court determined this parody was excused as a fair use. Important factors: Only 29 seconds of music were borrowed (not the complete song). (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).) (Note: As a general rule, parodying more than a few lines of a song lyric is unlikely to be excused as a fair use. Performers such as Weird Al Yankovic, who earn a living by humorously modifying hit songs, seek permission of the songwriters before recording their parodies.)
Fair use. The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song “Pretty Woman” (“Oh, pretty woman, walking down the street”). The rest of the lyrics and the music were different. Important factors: The group’s use was transformative and borrowed only a small portion of the original song. The 2 Live Crew version was essentially a different piece of music; the only similarity was a brief musical opening part and the opening line. (Note: The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher, who did not want “Pretty Woman” used in a rap song.) (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)
- See more at: http://fairuse.stanford.edu/overview/fair-use/cases/#sthash.HOxLNl7K.dpuf
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Re: Re: Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
Your example of Weird Al is actually a good one because he has been interviewed multiple times and has indicated that while he does not believe he NEEDS permission, he requests it because he believes it is the ethical thing (and prudent thing) to do. He has said apart from the ethical argument, whether he is right or not, he has no interest in battling it in court.
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I happen to disagree, sorry. And you've given nothing to convince me a court would see otherwise. Changing nearly every single one of the words to an uplifting and encouraging message about girls, as opposed to keeping the original "girls-as-objects" language pretty much seems to me the definition of transformative. Also, the context of the video adds to it--now we're talking about actual girls as opposed to women. The original was flirtation, this is irreverent.
This is no less transformative than any SNL parody (which by the way is a commercial endeavor).
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It's pretty obvious you don't have a creative bone in your body, and think that no skill or creativity were used to write an entirely new set of lyrics.
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"Songs carry emotional information and some transport us back to a poignant time, place or event in our lives. It's no wonder a corporation would want to hitch a ride on the spell these songs cast and encourage you to buy soft drinks, underwear or automobiles while you're in the trance. Artists who take money for ads poison and pervert their songs. It reduces them to the level of a jingle, a word that describes the sound of change in your pocket, which is what your songs become. Remember, when you sell your songs for commercials, you are selling your audience as well."
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Re: Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
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Re: Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
The Waits precedent is totally useless here. It dealt with imitating people so that it appeared that they endorsed the product. Using a work doesn't do that, in no small part because one's identity is something one keeps, but works are alienable.
Keep trying, but try harder next time.
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Well, I don't know.
Yes, fair use should consider the overall circumstances involving the use.
But OTOH, it's a long settled point that an infringer claiming to have engaged in fair use derives no benefit from the portion of his work which is not a fair use. For example, if you write a 10,000 page book, but 200 of the pages are a direct copy of someone else's book, the fact that most of the book is original is of no consequence.
Here, the only part of the video that uses Girls is the song. Should the rest of it not only not be helpful for the defense but be used against it? Or should the court generally try to limit itself to the song as it was used, and not consider extraneous material?
Taken by itself, the song does parody the original. Would it matter if the song had been independently created and then was later used in an ad? The time horizon for fair use is also a very unsettled question, so there aren't even any clear answers there.
On a somewhat unrelated point, this controversy reminded me of a parody ad from way back: the Lark cigarettes commercials ( http://m.youtube.com/watch?v=T6E5x5VX1VA ) which were famously parodied by a commercial for Jeno's pizza rolls ( http://m.youtube.com/watch?v=SE-NdrzfFOo ) which was famoulsy written by Stan Freberg. I don't think there was a court case, and the underlying music was public domain (though the lyrics were clearly copied and changed for the parody) but it's a good example of an ad which is also a parody.
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Re: Get in bed with an egomaniac? Pass.
Test element #1 has already been passed. Campbell v. Acuff-Rose Music, Inc., dipshit.
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This would be a much more interesting article if we had some response from them about that section, or if they had actually tried to enforce that part of their TOS against somebody.
As it stands it seems more like nitpicking.
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Re:
That's not a very good excuse is it? In fact if it's true (and I doubt it) it would seem pretty negligent, and suggest they're relying too much on poor lawyers.
And it's not nitpicking, it's exactly the kind of extra scrutiny you can expect when you do something that's bound to excite the legal beagles.
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Re:
So they are putting terms up that they expect people to read and follow and they don't even know WHAT THEY ARE? How is that any better?
(Also, Techdirt: Please, no more than one auto-playing video ad per page. This page is lagging my computer so badly I can barely type.)
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This is unfortunately not new: Better Business Bureau, Kohl's, Bloomberg, the Green Bay Packers, and Oprah (among others) do the same thing
Here is a short list of sites that explicitly prohibit linking to their site:
================================================================
Better Business Bureau
http://www.bbb.org/us/terms-of-use/
The following organizations MAY LINK TO OUR WEB SITE WITHOUT PRIOR WRITTEN APPROVAL: Government agencies; Search engines; News organizations; Online directory distributors when they list us in the directory may link to our Web site in the same manner as they hyperlink to the Web sites of other listed businesses; and Systemwide Accredited Businesses except soliciting non-profit organizations, charity shopping malls, and charity fundraising groups which may not hyperlink to our Web site. These organizations may link to our home page, to publications or to other Web site information so long as the link: (a) is not in any way misleading; (b) does not falsely imply sponsorship, endorsement or approval of the linking party and its products or services; and (c) fits within the context of the linking party's site. We may consider and approve in our sole discretion other link requests from the following types of organizations: commonly-known consumer and/or business information sources such as Chambers of Commerce, American Automobile Association, AARP and Consumers Union; dot.com community sites; associations or other groups representing charities, including charity giving sites, online directory distributors; internet portals; accounting, law and consulting firms whose primary clients are businesses; and educational institutions and trade associations.
================================================================
Bloomberg
http://www.blo omberg.com/tos
Your access, link to, or use of the site, or any service on this site, after the posting of modifications to the TOS will constitute your acceptance of the TOS, as modified. If, at any time, you do not wish to accept the TOS, you may not access, LINK TO, or use the site.
================================================================
Cool Running
http://www.coolrunning.com/engine/5/terms-of-use.shtml
Except as expressly stated in these Terms of Use or as otherwise specifically authorized by Active, you may not duplicate, download, publish, modify or otherwise distribute (including through the use of frames or DEEP LINKS) the material on the Active Sites.
================================================================
FuturePLC
http://www.futureplc. com/terms-and-conditions/
You must not frame or LINK TO THE WEBSITE OR ANY PART OF IT WITHOUT OUR PERMISSION.
================================================================
Green Bay Packers
http://www.packers.com/footer/terms-and-conditions.html
Other sites may link without prior permission to the home page of the Green Bay Packers, www.packers.com, (the "Service") ONLY THROUGH A PLAIN-TEXT LINK. Permission must otherwise be granted by us in writing for any other type of link to the Service and/or copyright content owned by the Green Bay Packers.
================================================================
IBM
http://www.ibm.com/legal/ us/en/?lnk=flg-tous-usen
All links to this Web site must be approved in writing by IBM, except that IBM consents to links in which the link and the pages that are activated by the link do not: (a) create frames around any page on this Web site or use other techniques that alter in any way the visual presentation or appearance of any content within this site; (b) misrepresent your relationship with IBM; (c) imply that IBM approves or endorses you, your Web site, or your service or product offerings; and (d) present false or misleading impressions about IBM or otherwise damage the goodwill associated with the IBM name or trademarks. As a further condition to being permitted to link to this site, you agree that IBM MAY AT ANY TIME, IN ITS SOLE DISCRETION, TERMINATE PERMISSION TO LINK TO THIS WEB SITE. In such event, you agree to immediately remove all links to this Web site and to cease using any IBM trademark.
================================================================
Kohl’s
http://www.kohls.com /catalog/common/content.jsp?pageName=legalnotices
Periodically, links may be established from this Site to one or other external web sites or resources operated by third parties (the "Third Party Sites"). Kohl's provides these links for your convenience only. In addition, certain Third Party Sites also may provide links to the Kohls.com Site. At no time shall any such links be deemed to imply that Kohl's endorses or approves the third party sites or any content therein. Kohl's does not control and is not responsible or liable for, and does not make any representations or warranties concerning, any third party sites or any content, advertising, products, or other materials on or available from such third party sites. Access to any third party sites is at your own risk and Kohl's will have no liability arising out of or related to such third party sites. Without limiting the foregoing, LINKING TO OUR SITE IS STRICTLY PROHIBITED ABSENT EXPRESS WRITTEN PERMISSION FROM KOHL'S.
================================================================
LeeStreet
http://leestreet.com /about/terms.php
Except with the written permission of LeeStreet.com, you agree that YOU WILL NOT CREATE LINKS FROM ANY WEB SITE OR WEB PAGE TO ANY PAGE WITHIN THE LEESTREET.COM WEB SITE WITH THE EXCEPTION OF THE LEESTREET.COM WEB SITE HOMEPAGE.
================================================================
LinkBuddies
http://linkbuddi es.com/lb/terms.php
[Y]ou may not (and may not authorize any other party to) (i) co-brand this site, or (ii) frame this site, or (iii) HYPER-LINK TO THIS SITE, WITHOUT THE EXPRESS PRIOR WRITTEN PERMISSION OF LINKBUDDIES®.
================================================================
Oprah
http://www.oprah.c om/terms_and_conditions.html
OWN grants you the REVOCABLE PERMISSION TO LINK TO THE SITES;
================================================================
Sesame Street
http://www.sesamestreet.org/termsofuse
You agree that if you include a link from any other web site to the Sites, such link shall open in a new browser window and shall link to the full version of an HTML formatted page of the Sites. You are not permitted to link directly to any image hosted on the Sites, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another web site. You agree not to link from any other web site to the Sites in any manner such that the Sites, or any page of the Sites, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We may require that any link to the Sites be discontinued, and to REVOKE YOUR RIGHT TO LINK TO THE SITES FROM ANY OTHER WEB SITE AT ANY TIME.
================================================================
Sesame Workshop
http://www.sesameworkshop.org/terms-of-use/
WE MAY REQUIRE THAT ANY LINK TO THE SITES BE DISCONTINUED, AND TO REVOKE YOUR RIGHT TO LINK TO THE SITES FROM ANY OTHER WEB SITE AT ANY TIME.
================================================================
SuperStock
http://www.superstock .com/privacy.asp
You may not use the Site for anything other than the Site’s intended purpose, including but not limited to the following restrictions: LINKING WITHOUT SUPERSTOCK’S EXPRESS PERMISSION;
================================================================
UBM
http://legal.us.ubm.co m/terms-of-service/
You will not reproduce, modify, distribute or republish materials contained on the Service (either directly OR BY LINKING) without our prior written permission. You will not alter or remove any trademark, copyright or other notice from copies of content. You may, however, download material from the site (one machine readable copy and one print copy per page) for your personal, noncommercial use only. We reserve all rights in and title to all material so downloaded. All trademarks, service marks, trade names, trade dress and logos appearing on the site are the property of their respective owners, including in some instances UBM LLC.
================================================================
UX Magazine
http://uxmag.com/terms-of-service
UX Magazine grants you the REVOCABLE PERMISSION TO LINK TO THE SITE
================================================================
Web Marketing Today
http://webmarketingtoday.com/conditions-of-use/
You are hereby granted a LIMITED, REVOCABLE, AND NONEXCLUSIVE RIGHT TO CREATE A HYPERLINK TO THE HOME PAGE OF WEB MARKETING TODAY so long as the link does not portray any false, misleading, derogatory, or otherwise offensive matter.
================================================================
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