Sony Uses Copyright To Force Verge To Takedown Its Copy Of Sony's Spotify Contract
from the censorship-through-copyright dept
Well, well. A few days ago, the Verge got a huge scoop in the form of Sony's original US contract with Spotify, leading to a ton of discussion (mostly focused around the huge "advances" that Spotify guaranteed Sony, and the related question of whether or not Sony actually passes those advances on to musicians). The debate raged on for a couple days, and late last night, Paul Resnikoff over at Digital Music News noticed something interesting: the original contract was now missing, and The Verge's own website claims it's due to a copyright threat from Sony:
And we all know damn well that Sony loves to throw around bogus copyright threats. Even we have received one concerning reporting on Sony Pictures' leaked emails. Sony has threatened lots of other publications as well, and even Twitter over such leaks. And, Resnikoff notes that Sony Music threatened his site for an April Fool's joke, pretending to reveal internal emails concerning Sony's equity stake in Spotify.
So here's the question: why did Vox (the owner of the Verge) cave? For a modern media operation, it must have lawyers that know the threat is bullshit.
Yes, it is possible to get a copyright over the contract, but it's likely to be a pretty thin copyright, because the amount of "creative" work in the contract is minimal. Much of the contract is likely boilerplate. But, more importantly, the Verge has a slam dunk fair use case here. They're providing commentary on the contract. It's a matter of public interest. They're not "selling" the contract and they're certainly not harming the "market" for the contract itself, of which there is none.
We actually dealt with this issue once before -- two years ago when Apple pulled the same bullshit move to pull down a contract that Resnikoff himself had posted on Digital Music News. Somewhat ironically, the first party to report on that... was the Verge! And in their report, they quoted law professor Eric Goldman noting the ridiculousness of it:
"It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public."Sounds about right when applied to Sony in this case. Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.
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Filed Under: censorship, contract, copyright, fair use
Companies: sony, spotify, the verge, vox
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What a surprise
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As mentioned in the article, Sony claims to have written the document, so it would (sorta, kinda, loosely) hold any copyright. If there really is one.
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Because this just smacks of Sony Music, yet again, doing fuckign stupid things that an errant two-year-old wouldn't get caught doing.
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Courts have ruled that legal contracts are protected by copyright. [e.g., American Family Life Insurance Co. of Columbus (AFLAC) v. Assurant, Inc. (2006) No. 1:05-CV-1462-BBM]
The only question is whether leaking a *copyrighted* legal contract in the publc interest would ever be considered "fair use"? Probably not.
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That's not even a valid question since the leaking itself wouldn't need to be considered at all to determine if The Verge's use is Fair Use. It's whether the *publishing* of a leaked document would be considered Fair Use and in this particular case the answer is pretty strong "yes".
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But if, as claimed, the commercial (read: copyrightable) value of a contract document lies in its novel language or methods, then it's the actual use of the contract in commerce that's being protected. So, publishing the language wouldn't infringe, since there's no inherent value in seeing/hearing it, as there is with a book or song; but copying the language and using it in a contract of your own would diminish the contract's value, failing to compensate its author.
In other words, the only infringement would be ripping the language/ideas/methods, and using them in a new contract. No infringement for simply showing off the language. In my opinion.
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That's not entirely true. In that case, AFLAC was creating an insurance policy document in a "'narrative’ language style - as compared to the 'terse, nondescriptive' style employed by some of its competitors - [which] would be ‘readily understood by consumers.'" It was this "narrative" style that afforded it copyright protection.
On the other hand, "what might be called a paraphrase and plagiarism in another work, is significantly different for the purposes of comparing two insurance policies" (Continental Casualty Co. v. Beardsley). As a general rule, "When the 'idea' and its 'expression' are thus inseparable, copying the 'expression' will not be barred, since protecting the 'expression' in such circumstances would confer a monopoly of the 'idea' upon the copyright owner free of the conditions and limitations imposed by the patent law" (Herbert Rosenthal Jewelry Corp. v. Kalpakian).
So, unless the Sony contract was using some kind of "narrative language style" (which I doubt), its copyright claims are thin to nonexistent. If another company (say, Universal) came up with a contract that was almost completely identical to the Sony contract, I doubt that Sony would have a case to sue.
In any case, it really doesn't matter. This is a slam-dunk case of fair use if there ever was one.
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Why not? Mike explained pretty clearly why it absolutely is fair use: they're providing commentary, it's a matter of public interest, they're not selling the contract and there's no market to harm. Can you rebut any of these points?
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says something, if Spotify is given a contract of adhesion. But they'd be in the best position to dispute Sony's copyright claims, with claims of their own.
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BTW, have you ever dealt with this issue before? Like with Apple or such? And have you ever got a C&D from Sony?
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Techdirt received a silly threat letter from Sony concerning the hacked emails:
https://www.techdirt.com/articles/20150420/22284530731/our-response-to-sony-sending-us-threat -letter-reporting-companys-leaked-emails.shtml
And..um....that link is in the article above...
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I missed the point, by a wide margin apparently.
I was having a bad day and was kind of grumpy when I wrote that. That's not really an excuse, but it did cause me to entirely miss the joke behind that comment.
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Universal truth
(Unrelated note to Mike: Gretchen rocks!)
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Which is good since we know these copyright holders love to bleed useful services to death. It would be even more interesting to dig and see how much it reached the musicians. From comments from some top artists it seems to be pennies. Now imagine for the less known musician...
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http://s000.tinyupload.com/index.php?file_id=62574580331346831591
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This doesn't always work, such as for very old word formats. For the written word, plain text, or marked up text using Tex/Latex/html is much better. In general, use the simplest file format available for the data type.
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So Sue Me
Sony’s Lawyer: If they won’t take it down, sue ’em for copyright infringement.
Sony: Sounds great. What could go wrong?
[Next Day]
Sony: They refused.
Sony’s Lawyer: (smirking) We will draft the complaint today.
[Two Weeks Later]
Sony: Where’s the complaint? What’s taking so long?
Sony’s Lawyer: We ran into a small problem.
Sony: Explain.
Sony’s Lawyer: Well, um, my associate was researching the law on copyrights, and, uh (clears throat).
Sony: Yes?
Sony’s Lawyer: Well, it seems that Section 411(a) of the Copyright Act of 1976 (the "Copyright Act”) states, in part, the following: “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a).
Sony: (beginning to get agitated) In plain English, please.
Sony’s Lawyer: It means that we need a copyright registration to bring a lawsuit.
Sony: Are you telling me that we have to file this publicly to keep it a secret?
Sony’s Lawyer: (not so smirking)
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Sigh
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Power Breeds Fear
Time will tell.
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Re: Power Breeds Fear
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Interestingly though according to the actual terms of the contract itself (The confidentiality clause) Spotify could hold Sony in breach due to the release of it. That's probably more a worry to Sony than anything else at moment especially since Spotify is now the major music structure on PS4's
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