Stop The Presses: Disney Tells Court About The Importance Of The Public Domain

from the that-disney? dept

As you may know, Disney has something of a reputation when it comes to copyright and the public domain. While the company itself is somewhat notorious for taking works from the public domain, putting its own animated spin on it and then claiming copyright as far as copyright will take them, it also was the prime mover in extending the term of copyright back in 1998 in the "Sonny Bono Copyright Term Extension Act," which is often referred to as the Mickey Mouse Protection Act. It holds that nickname because Disney lobbied heavily for the Act and because it prevented Mickey Mouse from reaching the public domain. As Tom Bell has shown, there's a well-known Mickey Mouse curve that shows copyright extending basically every time Mickey Mouse is about to hit the public domain: So it's not often you see Disney out there defending the public domain -- and the importance of keeping it vibrant and supported by new things. However, that seems to be (sort of) what Disney is, in fact, arguing in a Supreme Court case known as Kimble v. Marvel. There are, of course, a bunch of caveats here. First, it's a patent case, not a copyright case. Second, it's Marvel, not technically "Disney," but Marvel is wholly owned by Disney. The case involves what appears to be a fairly straightforward question: can a patent holder demand royalties after a patent has expired. The obvious answer to this question is "hell no." And, in fact, that's exactly what the Supreme Court itself said in 1964 in Brulotte v. Thys Co.:

"We conclude that a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se."

But, because there can always be questionable rulings, there was another court ruling that (bizarrely) found that you can get a license for something that was never patented if you work out an agreement to that nature (that's Aronson v. Quick Point Pencil). This has made things messy.

In this case, some Spiderman fans patented a an invention of a toy that could shoot webs out of the toy's wrists, a la Spiderman. Marvel bought the patent from the inventors, promising a royalty if the company made such a toy, which it did. The patent expired in 2010 and Disney/Marvel stopped paying. The inventors sued... and have so far lost twice in the lower and appeals courts. The issue is now before the Supreme Court, with the direct question of whether or not the ruling in Brulotte should be overturned. Hopefully, it will not be. Once something is in the public domain it should stay there. And that is exactly what Disney/Marvel is arguing -- in ways that seem somewhat antithetical to the company's stance on copyright. Take this for example:

An essential part of the bargain at the heart of the patent system is that, when the patent term ends, all rights associated with the patent terminate and the patented idea is committed to the public domain for the free and unrestricted use of all. The same policy concerns animate other well-settled patent precedents, including the rule that a licensee may not be required to continue to pay royalties after a patent is invalidated. Private parties are properly forbidden from attempting to evade those congressional judgments.

Just switch out copyright for patents and you see how this looks quite out of place for Disney to be arguing, since it has fought incredibly hard to make sure that the "end" of the copyright term is an amorphous, ever changing concept that is always in the future. And then there's this incredible statement, warning of how horrible it would be if royalties might accumulate forever:

If anything, modern developments underscore the need to protect the public domain from the aggregate toll of patent royalties that would accumulate forever

You don't say, Disney. How very, very interesting...

Hopefully the Supreme Court makes quick work of this and sides with Disney in protecting the public domain on patents. But it will be interesting to see these statements come back up a couple of years from now as Mickey Mouse nears the public domain again, won't it?

Filed Under: copyright, kimble, patents, public domain, spider man, toys
Companies: disney, marvel

Disney So Desperate To Stop Leaks It Subpoenas ImageShack Over Single Blurry Still Image Of New Star Wars

from the and-creates-a-streisand-effect dept

Yes, of course, Disney is trying to keep the lid on the new Star Wars film and is extra careful to try to stop any leaks coming out about the new film, but this seems like a pretty expensive and silly way of doing things. The company's expensive lawyers at Latham & Watkins have sought a subpoena to serve on ImageShack because someone -- a user with the name "Darth_Simi" posted what appears to be a single blurry cropped still image from the film (shown here as a thumbnail): The focus, obviously, is on trying to track down the leaker: And while I recognize that Disney thinks it's incredibly important to figure out who leaked that single blurry image, this whole thing seems questionable for a variety of reasons. First, it seems highly likely that the blurry, cropped single frame image is not, in fact, infringing because it's fair use. It is a very tiny portion of the copyrighted work, it was not used for commercial reasons and certainly isn't going to impact the market for the film. As such, the attempt to subpoena ImageShack to identify the uploader should be denied, as it's not infringement.

Second, if Disney really wanted to stop such things, going to court seems like a fairly dumb way to do so. As the Hollywood Reporter story above notes, the image only had about 6,000 views when its story on this image went live. By the time I saw it, the number of views of the image had doubled, and it wasn't that long after the story had gone up. Disney clearly isn't using copyright law to stop this particular use, but rather as a separate tool to try to track down a leaker.

Third, it's hard to see how this effort could possibly be worth the money that Disney is paying its expensive lawyers for. Preparing the filing and going to court isn't cheap. And all over what, exactly? A tiny fair use, blurry, cropped frame from a movie that is only likely to get fans more excited to see the actual film?

Oh, and just to make this clear, we believe that our use of the thumbnail above is fair use for the same reasons that the original posting on ImageShack was fair use, and we'll add that, in this case, it's more so because we're commenting on the image itself in a press report -- and the image is newsworthy because of Disney's lawyers' own actions.

Filed Under: copyright, darth simi, dmca, fair use, leaks, star wars, still, subpoena
Companies: disney, latham and watkins

Negotiating Away Innovation: Dish Agrees To Kill Autohop To End TV Blackouts

from the shameful dept

The various TV networks have been suing Dish for the past couple of years because of its "autohop" feature, which automatically records prime time shows, and then lets subscribers watch them (starting the very next day) with commercials automatically skipped. So far, Dish has won basically every ruling in the case, showing that such technology is perfectly legal.

But now it's probably dead.

As we predicted would happen back in March, CBS has used its fight over retransmission to get Dish to agree to basically kill off autohopper, delaying it for 7 days after the show initially airs. In exchange, CBS will drop its lawsuit over autohopper, but also agree to allow Dish to offer its programming online ("over the top" as they say). This is basically the same deal Dish struck with ABC/Disney back in March as well, meaning that it's the same thing that every network will eventually agree to as well.

The retransmission fight was always lurking in the background of the autohopper lawsuit. The networks claimed that since Dish had existing negotiated deals for retransmitting network shows, the autohopper stuff was a contract violation (in addition to a copyright violation). So, basically, the legal fights lasted until the retrans negotiations had to come up again. Getting agreements for internet streaming is certainly nice, but to have it come at the expense of a nice bit of innovation like autohop is ridiculous. Perhaps it opens the door for third parties to make such technologies themselves, but these days standalone DVR products are pretty much a relic of history.

Of course, how long will it be until someone sets up a commercial system for acting as a DVR for internet streams, complete with commercial skipping features? It's doable today, but you can bet that even though it's just like a regular DVR/VCR, the legacy TV guys will flip out and call in the next coming of Aereo.

Filed Under: autohop, autohopper, blackouts, contracts, copyright, retransmission, tv
Companies: cbs, dish, disney

Marvel Goes DMCA Crazy Over Leaked Avengers 2 Trailer, Then Puts It On Its Own YouTube Page

from the quick-stop-that-advertising! dept

As the saying goes, death and taxes are both certainties -- as is the fact that politicians lie. But another near universal certainty is that Marvel will totally freak out whenever it gets the slightest inkling that its intellectual property is threatened. The latest head-scratching example of this was yesterday's leak of a trailer for The Avengers 2, which Marvel promptly DMCA'd.

The first trailer for next year's sequel to Marvel's The Avengers leaked today, earlier than Marvel Studios was obviously planning. The mega studio originally planned to show the new trailer publicly next week during an episode of television show Agents of SHIELD...Update: The leaked version of the trailer's been pulled from host Tinypic. Looks like Marvel isn't too thrilled about the trailer's early leak.

And you can see the studio's point. After all, movie trailers are advertisements, and Marvel certainly wouldn't want people advertising the studio's product to unbelievably hungry-for-anything fans out there. That might, you know, build up excitement for the new movie. What use could Marvel possibly have for that? As we know, now that the trailer has been leaked early before being taken down, literally nobody will see it during the Agents of SHIELD broadcast. Marvel must be totally screwed now, man. Game over.

Oh, yeah, here's the trailer that leaked.


Now, I'm sure you're wondering, "But, Tim, how could you possibly show us the trailer after Marvel DMCA'd the pants off of the leak?" Well, the answer is that I'm embedding that video from Marvel's own YouTube page. Yup, after the leak, and after it DMCA'd the leak because of how awful it was, Marvel then released the leaked trailer, prior to its original intended release, on its own YouTube page.

Which brings me to several conclusions. First, Marvel has admitted that there is no point to issuing DMCA notices any longer; otherwise, the DMCA notice would have been enough and it would have continued to release the trailer at the originally intended time. Second, Marvel hates getting free advertising. That's all a trailer is, after all, and Marvel has decided that the same video shown on its YouTube page shouldn't be hosted elsewhere, by other parties, for free. Makes sense. After all, you wouldn't want people to know about your movie or anything.

Filed Under: advertisements, avengers 2, copyright, dmca, trailers
Companies: disney, marvel

How The NBA's New Deal With Disney/TNT Takes One Step Forward, One Backward On Streaming

from the almost-there dept

For as long as I've had the privilege to write for Techdirt, I've had a special interest in sports leagues and their methods for broadcasts, with a particular eye towards blackouts and internet streaming. My motto has always been: just let me watch the damned game! It's never made sense to me how the major pro sports leagues seem to pass on opportunities to expand streaming options, particularly given the trend towards cutting the cable cord that continues to this day. In conjuction with this is the fact that sports broadcasts remain one of the few things keeping cable television relevant and preventing subscription numbers from absolutely tumbling. The moment sports become easily accessible via the internet, with local blackouts removed and ad revenue driving the costs down, it's over for cable.

That's what makes the new broadcast deal the NBA recently signed with ESPN and Turner Broadcasting somewhat exciting, as the league has insisted on expanding the streaming availability in certain areas, even while keeping the streaming operations with Turner. The landmark deal, which is for $2.6 billion annually, should mean expanded viewing options for fans. But first, the bad news.

Turner currently runs NBA.com, NBA Mobile, NBA TV, and NBA League Pass, and will continue to do so. This runs counter to the recent trend of leagues clawing back digital operations that they'd originally outsourced. In the early 2000s most sports leagues decided they didn't have the expertise to deal with digital and mobile, so they let somebody else pay them to do it. But as this revenue stream has grown, so has the leagues' desire to bring digital back into the fold. This will not be the case in the NBA.

Which is unfortunate for a number of reasons. First off, the NBA.TV product is pretty sub-par compared with what the other major leagues are doing in streaming. MLB.TV in particular has set the standard, with all kinds of options for different broadcasts, camera angles, and announcing calls. Even what the NFL does in putting many of their games on the websites of the broadcast partners for free is a decent platform. Turner, for its part, has never seemed up to the task. The other reason why it's important for leagues to take back ownership of their streaming product is because it severs one of the ties to a broadcast partner with an interest in driving most viewers to the television product. Once leagues expand their streaming product and begin monetizing the ad revenue that can come from it, they need television far less, and streaming will really open up. That can't happen under this deal.

But that doesn't mean the NBA doesn't see the writing on the wall long-term. To understand the following part of the new contract, you have to also understand that the NBA insisted on expanded nationally televised games. The new deal means no less than roughly 14% of the games will be televised by either ESPN/ABC or TNT. It may not seem like a huge number, but this is a significant move, something like a 20% increase in games available nationwide. Couple that with the following and it should be easy to see what the NBA has planned for the next time it negotiates a broadcast contract.

You'll be able to stream nationally televised games without needing cable: Currently, the NBA's only streaming option is NBA League Pass, which is a steaming pile of garbage. One of the biggest problems is that the 142 nationally televised games, 96 NBA TV games, and all playoff games aren't available, meaning you can't actually watch the most important games. The NBA fan still needs to have cable.

But per today's announcement, the league has "established a framework" with ESPN to "negotiate the launch of a new over-the-top offering in which the league would receive equity interest." In this context, over-the-top means "internet and mobile streaming." According to the Wall Street Journal, this streaming service will be separate from ESPN's WatchESPN app, which is a walled garden you can access only if you already pay for cable. The details are far from finalized, but it looks like fans will soon be able to watch nationally televised games without having to pay for cable, a major consumer win.

Bigger than most even realize, I suspect, because this is a move designed to expand the streaming product as a standalone from cable subscriptions, such that the next contract will have an even larger streaming option provision, if it includes the broadcast partners at all. If the NBA can hook fans on streaming for free, it can use that to reclaim the streaming product the next time around and build an ad-revenue base off of the viewership numbers.

If you're wondering why Disney and TNT allowed for this at all, the answer is easy: they had to. As I said, sports broadcasts are driving an insane amount of the cable business being done today and none of the other major sports leagues have deals up for renewal any earlier than 2020. The NBA was a huge commodity. What's interesting is seeing the obvious positioning of streaming the NBA is presenting for their future.

Filed Under: nba, streaming
Companies: disney, nba, tnt

It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5

from the oops dept

I actually don't think that Disney's trademark opposition to Deadmau5's attempt to trademark his mouse-shaped helmet thing is that crazy. Disney hasn't gone after Deadmau5/Joel Zimmerman all these years for using it. They're just saying "hey, maybe he shouldn't have a registered trademark on that." And they may have a point. Yes, the designs are different, and no, there isn't likely to be much confusion between Deadmau5 and Mickey, but why is Deadmau5 seeking to get a registered trademark on this in the first place?

That said, if notorious copyright maximalists Disney were going to pick an intellectual property fight with someone, it would probably make sense to make sure their own mouse house is in order, no? Apparently, it's not, because Deadmau5 has discovered that... Disney (yes, I'll repeat that: Disney) has uploaded some of his music on its website without permission. The music was on a "re-micks" (ha ha, get it?) page on Disney's website that has since been taken down -- but not before Deadmau5's lawyers sent a takedown letter over it. The letter also, amusingly, makes a trademark claim, though frankly the trademark claim is quite weak. Deadmau5's lawyer is basically claiming trademark infringement over the video as well. That almost certainly wouldn't fly in court.

I tend to not be a fan of takedowns in general, but it's pretty clear that this is basically just being done to call out Disney's hypocrisy here. Not that I expect the message to get through. Still it's surprising that such a copyright maximalist company would be posting videos like that...

Filed Under: copyright, deadmau5, joel zimmerman, licensing, mickey mouse, takedowns, trademark
Companies: disney

Disney Officially Seeks To Block Deadmau5's Trademark Claim

from the because-you-might-confuse-an-electronic-musician-with-a-cartoon-mouse dept

Apparently it's a big deadmau5 day on Techdirt. Not only do we have the story of Ferrari looking into blocking the sale of his Purrari, Disney is officially opposing his attempt to trademark his logo mousehead, which he famously wears in concert. Deadmau5 responded to this by saying "lawyer up mickey" though we're pretty sure that Mickey's been quite "lawyered up" for a long, long, long time. He further noted:

Disney thinks you might confuse an established electronic musician / performer with a cartoon mouse. That's how stupid they think you are.

— deadmau5 (@deadmau5) September 3, 2014

While he's right that the likelihood of confusion may not be that strong, it wouldn't actually be a surprise to see Disney win this. Disney has a big music business on its own, and Deadmau5's mouse head may be considered similar enough. I personally think it's silly, and the real likelihood that anyone thinks Deadmau5 is associated with Disney is pretty slim, but the USPTO doesn't always agree with me, and (again) "Mickey" has some powerful lawyers on his side.

Of course, it's not really a big deal if Disney succeeds here. All it would do is block Deadmau5 from having a registered trademark on the design, but that's neither necessary nor required. The real question is if Disney would go even further and attempt to block Deadmau5 from continuing to use the design. That... would be a lot more questionable.

Filed Under: deadmau5, likelihood of confusion, mouse ears, trademark
Companies: disney

DailyDirt: Waiting In Line Isn't Fun

from the urls-we-dig-up dept

Queuing theory is a subset of applied math that looks into the behavior of waiting in line and algorithms that optimize various aspects of this particular kind of resource allocation. Retailers of all kinds are interested in this kind of math because it can improve customer satisfaction and get more products out the door. Apple reduces long cashier lines with employees who can accept payments anywhere in its stores. Fry's Electronics has the giant single line that feeds into a massive array of cashiers (aka the serpentine line). There are self-checkout lanes at the grocery store, but there's no silver bullet to eliminate waiting in lines. Here are just a few more links on this problem of civilization.

• Ever pick a checkout line at the grocery store and think "I always pick the slowest lane" once you've committed to a particular cashier? The math says that the odds of picking the fastest lane are against you, so you're most likely right that you never pick the fastest line. [url]
• Waiting in line at Disney can be cut short with its Fastpass system, but what does Fastpass really optimize? FYI, Disney doesn't let you hire disabled kids to cut in line anymore. [url]
• The best system for boarding planes is not the one that most airlines use, but Southwest's boarding method does pretty well. A few studies have looked at how to board planes more efficiently, but the Jason Steffen method isn't used by any airline (and there's little incentive for most airlines to change what they're currently doing). [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: algorithms, boarding, cashiers, fastpass, jason steffen, math, optimization, planes, queuing theory, serpentine line, waiting
Companies: disney, southwest

UK Woman Denied Passport Because Her Name Might Infringe On Disney's Copyright

from the transmitting-infringing-names-across-borders-for-personal-gain dept

With all the talk of terrorism keeping government officials firmly focused on travel documents (and electronics), it really comes as no surprise that they're on top of any passport anomalies. Like a traveler sporting one more "Skywalker" in their name than the other 99.9999% of the population. [via several TD readers, but first from Jon Jones]

Her namesake may be able to travel across galaxies in Star Wars, but Laura Matthews from Southend – whose middle name is Skywalker – isn't even able to get on a budget airline to the Med.

The 29-year-old added the middle name by deed poll in 2008, "for a bit of a laugh", and recently tried to renew her passport, complete with her new name and the signature L. Skywalker. Her application was refused, with the Home Office telling her it "will not recognise a change to a name which is subject to copyright or trademark".

Seeing as copyright and trademark law has nothing to do with security and/or a person's ability to travel, it's a bit odd that the passport office would be so concerned about George Lucas' intellectual property -- a stock farmboy character transplanted to a stock good v. evil storyline set in a futuristic past. After all, as Laura Skywalker points out, no other government agency has expressed a concern about her legally-changed name.

A disgruntled Matthews complained: "It's on my driving licence, my bank cards, everything. Everyone else is happy with that signature apart from passport office."

In the spirit of compromise hastened by a disgruntled would-be traveler and a bunch of negative press, the passport office is trying to work out a way to let this Skywalker board aircraft. The fix suggested is the most bureaucratic solution, involving Matthews submitting passport paperwork with her old non-Skywalker signature and being allowed to keep the new one featuring the now-famous "L. Skywalker" scrawl, which will result in duplicated paperwork that doesn't match the current passport and will likely subject Matthews to additional scrutiny from watchful and confused customs officials in the future. Never forget: the government exists mainly to generate paperwork and performing this useless maneuver satisfies that requirement.

Still, it must be asked why customs is so damn adamant that no one violate the sanctity of intellectual property with spur-of-the-moment name changes. Granted, the agency acts as a buffer between nations by vetting travelers (and their counterfeit goods), but its objective should be safety, rather than acting as guardians against the secondary liability caused by the movement of an "infringing" name across borders. Also granted, the most powerful name in intellectual property -- Disney -- now "owns" Skywalker and other associated Star Wars IP. The mere speculation that the corporation would mobilize its army of IP lawyers has been enough to shut down productions clearly covered by fair use.

We're often accused of being some sort of IP-obsessives here at Techdirt when calling out others for their inability to tell their patents from their copyrights, but the true obsessives are those who man the borders and look for potentially-infringing names.

Filed Under: laura skywalker matthews, names, passports, skywalker, star wars, uk
Companies: disney

ESPN And Univision Say Screw Fair Use: Your 6 Second Vine Videos Of World Cup Goals Must Be Taken Down

from the permission-society dept

Last year, we wrote about the ridiculousness of Prince sending DMCA takedowns over 6 second videos on Vine. Those seemed like a pretty clear fair use case. The very nature of Vine, in that it limits videos to 6 seconds seems tailor made for fair use, even if there is no magical time period that guarantees fair use. Either way, it should be no surprise that when it comes to a major sporting event, the powers that be don't believe in any fair use at all. Similar to the Olympics, nearly every time we write about the World Cup, it involves an aggressive abuse of claimed intellectual property rights to stifle perfectly legitimate communications and content.

The latest, according to the Wall Street Journal, is that ESPN and Univision are rushing around taking down Vine clips of World Cup goals, even to the point that some major media properties have had their Vine accounts killed for being accused of infringement too often:

Since the start of the tournament Vox Media-owned sports site SB Nation, one of the chief purveyors of quick World Cup content, has had two accounts suspended on Vine, according to its managing editor Brian Floyd.

SB Nation received suspension notices from Twitter, Mr. Floyd said, after a complaint from media-protection company Irdeto, which works on behalf of Univision.

“They don’t seem to mind people Vine-ing funny stuff like fans,” explained Clay Wendler, who quickly crafts Vines for SB Nation. But when it comes to goals — breathtaking moments of glory seemingly tailor-made for the six-second looping video format — rights-holders are more stringent, Mr. Wendler said.

Considering that fair use rules are explicitly designed for news reporting, it seems rather clear that these are fair use. It's unclear from the report if SB Nation has appealed the takedown notices or not, but it's rather unfortunate that Twitter just killed those accounts without bothering to recognize that they're clearly being used for fair use reporting on the World Cup.

Similarly, the article points to a recent Slate post which for a little while had a video showing all 136 goals scored in the group stage of the World Cup, spliced together in quick clips, but that video has since been removed after ESPN contacted Slate to claim it was infringement. Once again, this seems like a fairly clear cut case of fair use, using news reporting in a transformative manner which isn't going to impact the market for the original. But, of course, ESPN is owned by Disney, and Disney doesn't exactly have the best of reputations when it comes to understanding fair use in others (even if it's been getting better on that front lately).

It's really too bad that it appears that Slate and Vox/SB Nation appear to have more or less given in to these takedown requests rather than standing up for fair use.

Filed Under: 6 seconds, copyright, fair use, goals, takedowns, videos, vine, world cup
Companies: disney, espn, twitter, univision