Warner Bros. DMCAs Insanely Awesome Recreation Of Blade Runner By Artificial Intelligence

from the oh-the-irony dept

I'm going to dispense with any introduction here, because the meat of this story is amazing and interesting in many different ways, so we'll jump right in. Blade Runner, the film based off of Philip K. Dick's classic novel, Do Androids Dream Of Electric Sheep, is a film classic in every last sense of the word. If you haven't seen it, you absolutely should. Also, if you indeed haven't seen the movie, you've watched at least one less film than an amazing artificial intelligence software developed by Terrance Broad, a London-based researcher working on his advanced degree in creative computing.

His dissertation, "Autoencoding Video Frames," sounds straightforwardly boring, until you realize that it's the key to the weird tangle of remix culture, internet copyright issues, and artificial intelligence that led Warner Bros. to file its takedown notice in the first place. Broad's goal was to apply "deep learning" — a fundamental piece of artificial intelligence that uses algorithmic machine learning — to video; he wanted to discover what kinds of creations a rudimentary form of AI might be able to generate when it was "taught" to understand real video data.

The practical application of Broad's research was to instruct the artificial neural network, an AI that is something of a simulacrum of the human brain or thought process, to watch Blade Runner several times and attempt to reconstruct its impression of what it had seen. In other words, the original film is the interpretation of the film through human eyes, while Broad's AI reconstructed what is essentially what the film looks like through the eyes of an artificial intelligence. And if that hasn't gotten your heartrate up a bit, then you and I live on entirely different planets.

The AI first had to learn to discern footage from Blade Runner from other footage. Once it had done that, Broad has the AI "watch" numerical representations of frames from the film and then attempt to reconstruct them into a visual medium.

Once it had taught itself to recognize the Blade Runner data, the encoder reduced each frame of the film to a 200-digit representation of itself and reconstructed those 200 digits into a new frame intended to match the original. (Broad chose a small file size, which contributes to the blurriness of the reconstruction in the images and videos I've included in this story.) Finally, Broad had the encoder resequence the reconstructed frames to match the order of the original film.

Broad repeated the "learning" process a total of six times for both films, each time tweaking the algorithm he used to help the machine get smarter about deciding how to read the assembled data. Here's what selected frames from Blade Runner looked like to the encoder after the sixth training. Below we see two columns of before/after shots. On the left is the original frame; on the right is the encoder's interpretation of the frame.

Below is video of the original film and the reconstruction side by side.

The blur and image issues are due in part to the compression of what the AI was asked to learn from and its response in reconstructing it. Regardless, the output product is amazingly accurate. The irony of having this AI learn to do this via Blade Runner specifically was intentional, of course. The irony of one unintended response to this project was not.

Last week, Warner Bros. issued a DMCA takedown notice to the video streaming website Vimeo. The notice concerned a pretty standard list of illegally uploaded files from media properties Warner owns the copyright to — including episodes of Friends and Pretty Little Liars, as well as two uploads featuring footage from the Ridley Scott movie Blade Runner.

Just a routine example of copyright infringement, right? Not exactly. Warner Bros. had just made a fascinating mistake. Some of the Blade Runner footage — which Warner has since reinstated — wasn't actually Blade Runner footage. Or, rather, it was, but not in any form the world had ever seen.

Yes, Warner Bros. DMCA'd the video of this project. To its credit, it later rescinded the DMCA request, but this project has fascinating implications for the copyright process and its collision with this kind of work. For instance, if the automatic crawlers looking for film footage snagged this automatically, is that essentially punishing Broad's AI for doing its task so accurately that its interpretation of the film so closely matched the original? And, at a more basic level, is the output of the AI even a reproduction copy of the original film, subjecting it to the DMCA process, or is it some kind of new "work" entirely? As the Vox post notes:

In other words: Warner had just DMCA'd an artificial reconstruction of a film about artificial intelligence being indistinguishable from humans, because it couldn't distinguish between the simulation and the real thing.

Other comments have made the point that if the video is simply the visual interpretation of the "thoughts" of an artificial intelligence, then how is that copyrightable? One can't copyright thoughts, after all, only the expression of those thoughts. If these are the thoughts of an AI, are they subject to copyright by virtue of the AI not being "human?" And I'm just going to totally leave alone the obvious subsequent question as to how we're going to define human, because, hell, that's the entire point of Dick's original work.

Broad noted to Vox that the way he used Blade Runner in his AI research doesn't exactly constitute a cut-and-dried legal case: "No one has ever made a video like this before, so I guess there is no precedent for this and no legal definition of whether these reconstructed videos are an infringement of copyright."

It's an as yet unanswered question, but one which will need to be tackled. Video encoding and delivery, like many other currently human tasks, is ripe for the employment of AI of the kind that Broad is trying to develop. The closer that software gets to becoming wetware, questions of copyright will have to be answered, lest they get in the way of progress.

Filed Under: ai, automation, blade runner, dmca, simulation, terrance broad
Companies: warner bros.

Settlement Reached In Class Action Lawsuit Against Rightscorp For Robocalls

from the well,-it's-something dept

In late 2014, we wrote about a class action lawsuit filed against copyright trolling operation Rightscorp, which argued two things: (1) that the company's robocalling people's mobile phones accusing them of copyright infringement violated the Telephone Consumer Protection Act (TCPA), because you're not allowed to robocall mobile numbers, and that (2) the use of questionable DMCA 512(h) subpoenas to discover accounts associated with IP addresses was "abuse of process." Rightscorp and co-defendant Warner Bros. got that second claim tossed for violating California's anti-SLAPP law.

However, the robocalling/TCPA claim remained, and after bringing in a third party to help the two sides negotiate, it appears that they've reached a settlement agreement that has been presented to the judge for approval. According to the proposed settlement, the defendants will have to cough up $450,000, and members of the class (i.e., those who received Rightscorp robocalls to their mobile phones) can claim up to $100 each from the pool of money. Perhaps more interesting is that, so long as those class members sign an "Affidavit of Non-Infringement," then Righscorp promises not to pursue them for any copyright infringement claims. Apparently, this actually applies to members of the class who don't even make a claim for any money.

Defendants will contribute $450,000 to the Settlement Fund. Each Qualified Class member who timely submits a claim may receive a payment of up to $100.00 subject to the following condition. The Settlement Agreement provides that Defendants will release any and all alleged claims or counterclaims for copyright infringement against Settlement Class Members who timely execute an Affidavit of Non-Infringement. The value of the total infringement releases is estimated to fall between $94.8 million and $19 billion in total statutory damages.

That last number is a bunch of hogwash. It's just using the ridiculous statutory damages numbers to put a value on the promises to drop any copyright claims, but since Rightscorp never actually sues anyone, the statutory damages are meaningless. The idea behind it, though, is to show why the amount is lower than what the TCPA prescribes for violations of robocalling rules. Either way, this at least gets a bunch of folks out of Rightscorp's crosshairs. Rightscorp also promises to prevent future such robocalling, which may somewhat limit its ability to keep up its trolling operation.

It's not clear who exactly is paying the $450,000. Even though Righscorp is the real culprit, the much bigger pocketed Warner Bros. Entertainment and BMG are both defendants as well, so it wouldn't surprise me to discover that the actual money comes from them. However, maybe it will make them think twice about associating with trolling lowlifes like Rightscorp. This isn't final yet, as the court still needs to approve it -- but courts generally approve these kinds of settlements just to get the cases off the docket. So unless someone raises serious issues with it, it's likely to come to pass.

Filed Under: class action, copyright trolling, john blaha, robocalls, settlement, tcpa
Companies: bmg, righstcorp, warner bros.

Daughters Sue 'Big Bang Theory' Over Infringing Use Of Mother's 82-Year-Old Poem 'Warm Kitty'

from the and-they-might-actually-have-a-case dept

A copyright infringement lawsuit has been filed against a long list of defendants -- all of it related to the hit sitcom "The Big Bang Theory." Supposedly, a poem written in 1933 is being used without permission of the putative rights holders (the author's daughters) and making everyone involved with the show a lot of money.

The poem, titled "Warm Kitty," is often sung by one of the main characters. It has been used often enough to become its own cultural force, resulting in a pile of Big Bang Theory merchandise featuring the words and/or title.

The plaintiffs claim that one defendant, Willis Publishing, licensed the poem to Warner Bros. Entertainment without their permission. The chain of custody, as it were, is a bit tangled.

Edith Newlin wrote the poem in early 1933. Later that year, she was approached by Laura Pendleton MacCarteney for permission to use her words as lyrics to a song in nursery song book. This book ("Songs for the Nursery School") was published in 1937 by Willis Publishing. The words were set to a public domain song and Newlin was thanked in the opening pages of the book for allowing Willis Publishing to use her "copyright for the 'Warm Kitty' lyrics."

Willis Publishing renewed its copyright (for the book) in 1964, shortly before the first 28-year copyright period ended. (Under the then-current law -- the Copyright Act of 1909 -- rights holders were allowed one 28-year extension of the copyright term.) This registration was not listed as Willis Publishing, but rather done under MacCarteney's name, unlike the original registration in 1937.

Under the 1909 copyright law, federal protection was not extended to creators unless they a) published the work and b) attached a copyright notice. In this case, Willis handled the publication and notice, while simultaneously recognizing the copyright for the words still resided with Newlin.

Under that same law, the rights to the poem on its own belonged to Newlin, with Willis' publication serving as her official copyright notice. At the end of the term, it would have been up to Newlin to renew it. She never did, but -- as is argued by the plaintiffs -- the 1964 renewal by MacCarteney, which covered the entire contents of the book, effectively acted as a re-up for Newlin.

This registration (and renewal) by proxy sounds a bit iffy, but may actually be legitimate. According to a Ninth Circuit Appeals Court decision in 1988 (Abend v. MCA, Inc.) that deals with pre-Copyright Act of 1976 protections, "blanket" renewals that simultaneously carve out exceptions for rights holders' work contained within another copyrighted work can both serve as a renewal for the whole as well as the works contributed towards it without severing the original contributors' copyright protections.

We adopt the Second Circuit's conclusion that where a magazine publisher has purchased limited publication rights in a work "under circumstances which show that the author has no intention to donate his work to the public, copyright notice in the magazine's name is sufficient to obtain a valid copyright on behalf of the beneficial owner, the author or proprietor [of the work]." Goodis v. United Artists Television, Inc., 425 F.2d 397, 399 (2d Cir.1970).

In Goodis, the Second Circuit addressed a factual situation similar to the one in this case. There, the author of a story granted limited rights to the publisher of a periodical. The publisher registered a blanket copyright in the issue of the periodical that contained the story. The author never separately copyrighted his work. Id. at 399.

Under these circumstances, the Second Circuit concluded that the publisher's copyright effectively protected the story and gave the author beneficial ownership of a copyright in the story. In so holding, the court decided that the "doctrine of indivisibility" should not be strictly applied to decide who may copyright a work.

The key to this lawsuit is this part of the court's decision:

"...under circumstances which show that the author has no intention to donate his work to the public…"

Newlin gave Willis Publishing permission to use her words. In return, she was apparently given nothing more than credit and proxy copyright registration. The fact that Willis acknowledged her copyright suggests it was not, at that point, seeking to make any other claims about the incorporated work. The book was renewed in whole and unchanged in 1964, leaving the page acknowledging Newlin's permission to include the poem intact. At that point, Willis could have approached Newlin to be granted full control of the rights. It apparently did not do this. Instead, long before the short poem became a lucrative entity, it simply renewed the copyright and her incorporated work, extending protection of "Warm Kitty" until 1993.

In 1978, copyright terms were extended: 75 years from the date of publication for pre-1978 works. That brought the poem's expiration date to 2012. Before the first Congressionally-granted extension could expire, the "Sonny Bono Act" tacked on another 20 years for works pre-dating the 1978 extension. The second renewal by Willis/MacCarteney is how Newlin's daughters are able to claim they hold the rights to this poem (the proxy renewal). Two updates of intellectual property laws explain why they will continue to do so until 2032.

And the weird thing is, they may be right.

Newlin may have been a bystander to Willis' use of her lyrics, but she never explicitly gave up her control of the work, nor did the music publishing company ever seek to take sole ownership of these rights. An informal agreement made 82 years ago may result in the award of damages to Newlin's heirs -- who had no idea the poem had gained cultural traction until several years after The Big Bang Theory debuted.

Willis Publishing might have a problem on its hands. On its own website, it makes the highly-dubious claim (sort of...) that it owns the rights to a poem that it explicitly stated in 1937 (and again in 1964) belonged solely to the poem's creator.

In 1937 we published a book called Songs for the Nursery School and we sold tens of thousands of copies. It is a hardbound book of over 150 songs for children. The book was written by Laura Pendleton MacCarteney. In that book on page 27 is Warm Kitty.

Warner Brothers and I worked together to secure the rights for the show The Big Bang Theory and they have been using the song ever since.

Whoever the company secured the rights from, it apparently wasn't Newlin's daughters. It could be that Willis Publishing approached Laura MacCarteney -- who was listed as the rights holder in the 1964 copyright renewal -- but MacCarteney would have been similarly unable to grant Willis or Warner Bros. permission to use Newlin's work.

So, if this bizarre registered-without-even-trying copyright registration holds up, it may end up costing Willis something. The rest of the parties would have acted in good faith under the assumption that the last known rights holder (Willis/MacCarteney) were able to negotiate licensing terms for Newlin's poem. In fact, it's highly likely the licensing agreement with Warner Bros. Entertainment contains an indemnity clause, which would make Willis solely responsible for any erroneous claims or misrepresentations it may have made out its ownership of the poem.

And, while I can appreciate the first move in most lawsuits is to name as many defendants as possible, dragging Fox into this just because it bought the syndication rights is really one potential target too many. Fox had nothing to do with the allegedly-bogus licensing of the poem and its agreement likely doesn't include the merchandising rights. (I suppose it could be the potential target of an injunction preventing further use of episodes featuring the poem.)

If it goes the plaintiffs' way, it will be a weird way of getting rich -- something that seems to happen most frequently in the IP world. Two daughters will be collecting money for a poem their mother wrote over 80 years ago and never once made a move to monetize during her 99-year lifespan. In fact, without The Big Bang Theory popularizing the poem -- nearly a century removed from its original creation -- there'd be nothing for the sisters to sue about, much less hope to collect on. It could very well be they would have had prior notice if Willis hadn't cut them out of the deal (either innocently or maliciously), but the increased value of the poem has nothing to do with Newlin's daughters' efforts -- or for that matter, Willis Publishing's long-forgotten book of nursery songs.

Filed Under: big bang theory, copyright, edith newlin, laura mccarteney, licensing, warm kitty
Companies: warner bros., willis publishing

More Creative Hollywood Accounting Revealed In Goodfellas Lawsuit

from the what-do-you-mean-these-books-look-funny? dept

For years now, we've discussed the somewhat creative nature of Hollywood accounting and how things get set up so that almost no movie ever technically makes a profit. We've shown how a Harry Potter film that brought in nearly a billion dollars still showed an accounting loss, just like Return of the Jedi -- one of the most successful movies of all time. Now, apparently, we can add Goodfellas to the list. The movie, which just had the 25th anniversary of its release, is widely considered a true classic -- one of the all-time greats in film history.

As creative as the movie may have been, it appears the accounting may have been even more creative -- at least according to one of the producers of the film, Irwin Winkler, who is wondering what happened to his promised cut of the profits. While the specifics vary, here's a quick explanation of the usual way in which Hollywood Accounting works. Each film -- even when it's a major Hollywood film studio producing it -- is actually set up as its own independent "company." This company really serves no purpose other than to lose money. The film studio gives the specific film "company" a chunk of money as its budget, which is then spent on the production. But, on top of that, the studio "charges" the film company a "marketing and distribution fee." This is not actual money that changes hand (it's all still the same company). It's just a way to create a huge cost to make sure the "company" doesn't have any profits, and thus never has to pay anyone promised royalties that are based on "net profits." As some film producers have noted, you're better off asking for a ham sandwich in your film deal than a piece of the "net" profits.

In this lawsuit, Winkler claims some of that happened... but then says even more happened on top of that:

Plaintiffs produced a hugely successful film for Warner Bros. called "Goodfellas." By contract, plaintiffs were entitled to 50% of its net profits plus 5% of its gross receipts after "breakeven." "Goodfellas" took in more than $275 million at the box office and from other revenue sources. It cost less than $30 million to produce. Yet, Warner Bros. claims that "Goodfellas" made no net profits and actually lost money. Warner Bros. even charged $40 million of "interest" on its $30 million cost of production. But that was only the tip of the iceberg. This was "studio accounting" on steroids. It was also fraud. What Warner Bros. represented as receipts of "Goodfellas" were really only a fraction of the actual receipts. Warner Bros. concealed more than $140 million of its actual receipts. In fact, "Goodfellas" made very substantial net profits. But Warner Bros. quietly pocketed Winkler's share of those profits, plus years of unearned interest on Winkler's money. Winkler only discovered the truth in 2014.

It does seem weird that this would only come to light 24 years after the movie came out. The lawsuit notes that WB sent periodic reports to Winkler, but those reports "intentionally misrepresented the receipts of Goodfellas such that he only just found out about the $275 million number. More specifically, the lawsuit alleges that WB only shows 1/5 of the revenue from the home video market -- thus concealing approximately $140 million in revenue. The trick, according to the lawsuit, is that Warner used the fact that it also owned Warner Home Video to move money around, playing a series of accounting games. From the lawsuit:

Warner carried out its scheme by exercising its complete and absolute control over Warner Home Video, its wholly owned home video subsidiary. That total control gave Warner the ability to determine, in its own sole and controlled discretion, what part, if any, of home video receipts from "Goodfellas" Warner would elect to withdraw from its subsidiary and what part, if any, of such receipts it would elect to retain in its subsidiary's bank account, subject to Warner's complete and continuing control. If Warner had simply instructed its wholly owned video subsidiary to pay over to Warner only 20% of the home video receipts from "Goodfellas" and not pay Warner the remaining 80%, in order to exclude from plaintiffs' contingent compensation the 80% of receipts that Warner voluntarily rejected, Warner's conduct would have been a violation of the implied covenant of good faith and fair dealing inherent in every contract.

But Warner's scheme was even more cynical and devious than that. Warner didn't reject the 80% balance. Quite the contrary. After drawing down the first 20% of home video receipts, Warner subsequently took the 80% balance as well, but tried to disguise and conceal that subsequent receipt by calling it something else. Warner actually withdrew from its wholly owned home video subsidiary 100% of the receipts from the home video distribution of "Goodfellas," less home video costs. But, seeking to deprive plaintiffs (and others with the same contract) of any benefit from most of the home video revenue it received, Warner withdrew that revenue from its subsidiary in separate intercompany transfers and tried to disguise its transfers by giving them a different label. As the home video revenue from "Goodfellas" was received by its subsidiary, it was commingled with other funds, and Warner withdrew from its subsidiary an amount equal to 20% of that revenue, which it reported to plaintiffs as the "total" such revenue. Later, having complete and absolute control of its wholly owned subsidiary, Warner withdraw from that subsidiary an amount equal to the remaining 80% balance of such video revenue, less video costs. That balance, although received by Warner, was concealed and went unreported.

Basically, this is a similar trick to the classic "marketing and distribution fees" paid to the parent studio, but here, the wholly owned "home video" division effectively is charging an 80% fee on all revenue, even though it then turns that money over to the studio anyway. As the lawsuit points out, since it was a wholly owned subsidiary and WB was taking all the money anyway, it could "negotiate" whatever percentage it wanted the home video division to "keep."

Oh, and then it added insult to injury (or fraud to scam?) by charging additional fees on the 20% for distribution -- which it didn't even do:

And, in computing what it falsely reported as net losses, Warner further reduced the twenty percent of home video revenue it disclosed to plaintiffs by improperly charging and deducting from that twenty percent of home video revenue, substantial "distribution fees," despite the fact that Warner claims it was not even the home video distributor. And Warner even kept all such distribution fees for itself, rather than paying them over to the wholly owned subsidiary that it represents was the home video distributor. In all of their interactions alleged herein, Warner treated its wholly owned home video subsidiary as simply another division of Warner that did, in every respect, as it was told. And Warner treated the home video receipts of its wholly owned subsidiary simply as money to be paid over to Warner after deduction of home video costs.

Eventually, Warner allegedly told Winkler that the film was so far in the red that it would no longer even bother to send updated reports, because "there was no realistic chance of 'Goodfellas' ever achieving 'breakeven' or net profits...." That was in 2009. In 2014, Winkler's (new) accountant requested the latest report anyway, and it's in that report that WB revealed the fact that only 20% of the receipts were being counted. As Winkler's lawyers note, this certainly suggests that WB directly misrepresented the earlier reports.

There have been a number of similar suits over the years (hence some of the earlier stories), and they continue to reveal examples of really, really sleazy Hollywood accounting practices. These lawsuits have actually done fairly well in the courts, so it's likely more will be revealed if WB doesn't come up with some way to settle with Winkler to get him to shut up and stop revealing the details of how it makes some of its most successful movies look like they're losing money.

Filed Under: goodfellas, hollywood accounting, irwin winkler, movie industry
Companies: warner bros.

Colorado Judge Ignores First Amendment, Allows Prior Restraint In Banning Aretha Franklin Film

from the not-how-it-works dept

Late last week, singer Aretha Franklin succeeded in convincing a judge in Colorado to stop the Telluride Film Festival from screening the documentary Amazing Grace -- a concert film shot by Sydney Pollack that was actually filmed back in 1972, but was never shown. Franklin, of course, has no copyright in the film, but argued in her injunction request that she had an agreement with Pollack not to use the film without her authorization. From the complaint:

Ms. Franklin has never given permission for the use of this footage in any commercial context and has not authorized the public release of the footage. The footage was taken with the express understanding that it would not be used commercially without agreement and consent by Ms. Franklin.

Franklin argued that part of the agreement between Warner Bros., which held the rights to the film, and Alan Elliott, who apparently purchased those rights from WB, was that Elliott would then obtain all the necessary "authorizations, consents and releases and pay all re-use fees and other compensation required by applicable collective bargaining or individual contracts or otherwise required by law." While parts of the complaint hint at possible copyright claims, there really is none here, which is why the actual counts in the complaint do not mention copyright. Instead, they lean heavily on the (already troublesome) concept of publicity rights, as well as an anti-bootlegging law, which makes little sense, since the video is far from a bootleg.

As noted above, amazingly, the judge, John Kane, very quickly obliged and issued a short injunction barring the showing of the film. There is basically no discussion of the issues at all. Rather, Judge Kane merely repeats verbatim the arguments made by Franklin and then orders the injunction, blocking the showing of the movie.

This is ridiculous. As Eriq Gardner at the Hollywood Reporter lays out in great detail, it is difficult to see how this is possible under the First Amendment. When we're talking about speech -- even defamatory speech -- courts cannot issue injunctions, because that's prior restraint. There may be other remedies, but it seems dangerous to argue that a publicity rights claim can lead to an entire film being blocked:

In Colorado, a plaintiff can't prevail on a publicity rights claim if a defendant's use of the plaintiff's name and likeness is privileged under the First Amendment. That much is clear by prior cases. The state's Supreme Court has held the analysis turns on two issues — whether the use is primarily commercial or noncommercial and whether such use reasonably relates to a publication concerning a matter that is newsworthy or of legitimate public concern. Feature films are almost always deemed noncommercial (as opposed to, say, an advertisement) while the public concern of Amazing Grace is a toss-up.

Even if Franklin wins this analysis and shows she has a likelihood of prevailing in her lawsuit, under the proper standard of law, she then needs to demonstrate "irreparable harm" to obtain an injunction. In past court cases, judges have refused to enjoin works even when defamation can be shown or even when someone's privacy rights are being violated. Publicity rights should theoretically evoke an even higher bar because what's being protected is commercial use of their identity.

Even worse, the judge relies on that agreement between Warner Bros. and Elliott concerning Elliott's requirement to get permission. But the actual lawsuit here is against neither WB nor Elliott... but against the Telluride Film Festival, which is not a party to that agreement and thus should not be bound by it. So, even if one were to argue that Elliott had somehow waived his First Amendment rights in signing that contract, that says nothing at all about Telluride's.

The expansive reading of the situation by the judge is really dangerous. As Gardner points out, such a reading of publicity rights laws could allow celebrities to block reporters from writing about them by claiming it is violation of their rights. Furthermore, considering the First Amendment questions at play here, it is even more troubling that Judge Kane doesn't even mention the First Amendment at all, nor does he explore the issue of prior restraint. Even more bizarre? Despite the lack of any copyright claim, the judge seems to focus on the lack of "fair use" for why he's shutting the film down:

A film that essentially recreates the entire concert experience is not fair use of this footage.

Again, the complaint doesn't even make a copyright claim, so it makes no sense to do a fair use analysis in the first place, and even if there was such a claim, a fair use analysis requires a lot more than just saying "hey, it's not fair use." You have to at least do a four factors analysis. But, again, that's neither here nor there since there was no copyright claim in the first place.

And, unfortunately, since the Telluride Film Festival is now over, it's not clear if the festival will appeal this ruling, which will keep it busy in court for no clear benefit. But, in the meantime, the ruling has scared off multiple other festivals that had planned to show the film. As Gardner points out, all of this prior restraint was because Judge Kane couldn't even be bothered to realize who the defendant was, nor did he appear to recognize a blatant case of prior restraint when it landed on his desk:

Judge Kane has done a disservice by issuing a hasty ruling on a last-minute injunction bid — telling THR that this one was an easy call because producer Alan Elliott needed Franklin's permission. Except that's not what he was being asked to adjudicate! Elliot wasn't the defendant after all. Instead, film festivals (and distributors and news organizations) now have to worry about prior restraints on use of a celebrity's likeness and name. And sorry, Aretha, but this is hardly good news for artists who often use the names and likenesses of other artists in their creative endeavors. If she had made a deal that gave her the copyright on the footage — meaning the ability to control reproduction and distribution — that would be one thing; Here, she's attempting the ride the same vehicle that Lindsay Lohan attempted to use to stop a Pitbull song.

I agree with Gardner that this is a horrible ruling, from a judge who seemed to be in a rush to agree with Franklin, without even realizing what the issues were or who the parties were in court (and if they were subject to the contract). The only "saving grace" is that this ruling is at the district court level, rather than appeals court where it would become the rule for the circuit -- but it's already leading to prior restraint and scaring off film festivals from showing the film. And, you can bet that this case will be cited by others looking to use publicity rights to censor content in violation of the First Amendment.

Filed Under: alan elliott, amazing grace, aretha franklin, censorship, copyright, documentary, first amendment, free speech, injunction, john kane, movies, prior restraint, publicity rights, telluride
Companies: telluride film festival, warner bros.

Warner Bros. And Tolkien Estate Send Orc Armies To Kill Off Kickstarter For Real-Life Hobbit House

from the hobbit-you-try-being-nice-for-a-change? dept

Anyone who has been reading here for any appreciable amount of time is likely already aware that the Tolkien Estate, representing the family of JRR Tolkien, watches over the world to seek out even the barest possibilities for intellectual property issues concerning the dead author, and then pounces on them with its horde of legal armies. The estate has even gone so far as to suggest that simply mentioning the author's name on a button constitutes infringement. The Tolkien Estate doesn't produce anything of public value, mind you. Nor does JRR Tolkien, who is a dead person. Instead, the estate simply nixes out any unauthorized references to the author or his famous Lord of the Rings works, for reasons I can't really comprehend.

What's frustratingly interesting about these stories is the bone-breaking stretching the estate goes to just to claim some kind of infringement. The latest example of this is the Tolkien Estate and Warner Bros. forcing a couple to eighty-six their Kickstarter campaign to build a "Hobbit House" on their campsite.

Last month Jan and Ed Lengyel decided to launch a Kickstarter campaign for the Hobbit house they’re building at their Suffolk countryside campsite. The married couple are running a successful holiday ‘glamping‘ (glamorous camping) business and thought the idyllic location would be very suitable for small house inspired by the popular movie.

Following a complaint from Warner Bros. the Kickstarter campaign was pulled offline without warning. The movie studio didn’t want the couple to use Hobbit references arguing that they infringe on their copyrights and trademarks. Faced with the sudden removal the Suffolk couple saw no other option than to give in to the demands and started editing the page.

Those edits revised the project to be called "Poddit Hole" instead of "Hobbit House," and altered the setting for the house as existing in "Centre-Earth" instead of "Middle Earth." Those seem like changes that are somewhat significant while still paying homage to the Tolkien works. And that's when the Tolkien Estate stepped in, claiming that the changes were still too close to "Hobbit" and "Middle Earth" and would have to be changed further. In a bit of poetry, lawyers from the Tolkien Estate insisted that the couple refrain from using names or words that rhyme with "Hobbit."

“The Tolkien Estate has asked us not to use ‘Poddit Hole’, which is absolutely ridiculous. We have got to call the project something, what would they like us to call it?” Ed Lengyel tells Daily Mail. “Even though we have bent over backwards to meet their demands they are still wanting more,” she adds.

I'll say a couple of things about this. To start, I'm not entirely clear on what copyright claim either Warner Bros. or the Tolkien Estate has grounds to make. My understanding is that the house isn't constructed to be identical to any dwelling in the films, so that isn't it. Instead, the claim appears to rest on the copyright Tolkien's estate claims on the word "Hobbit," while the trademark does the same for both that word and "Middle Earth." For the trademarks, I'm not clear on exactly when Warner Bros. or the Tolkien Estate got into the recreational camping business. If they haven't, I'm not exactly sure where the customer confusion or competition is supposed to come in to play. As for the copyright claim on the race known as "Hobbits," it's not exactly a secret that the word existed prior to Tolkien's use of it (although with an entirely different meaning), nor is it obscure knowledge that Tolkien himself based his race of Hobbits off of other fictional work. A copyright claim needs to follow specific characters or expression. Simply mentioning the fictional race as inspiration for a camp dwelling would require stretching to meet the level of copyright infringement.

And the final point, of course, is that damn it all of this should be in the public domain by now. Were it not for the extensions to copyright that occurred decades after Tolkien put pen to paper, we wouldn't even have to be discussing any of this. Of course, nothing goes into the public domain any more.

Filed Under: crowdfunding, ed lengyel, hobbit, hobbit house, jan lengyel
Companies: tolkien estate, warner bros.

Arkham Knight PC Game Arrives Just In Time To Demonstrate Why Steam Needed Refunds

from the port-density dept

When Steam announced its new refund policy, the timing was, perhaps, unfortunate in terms of gauging the response to the new policy. See, the new refund program came on the heels of a similarly new attempt by Steam to offer a platform for modders to charge for mods, which caused a nearly universal backlash from the gamer customers. With that fresh in everyone's mind, it was disheartening to watch some game developers, particularly those on the indie side, criticize and worry over Steam having an actual refund policy for digital games. Not that every last bit of the concern was unwarranted, mind you, it's just that the idea of Steam having essentially zero refund policy was one of those things that sounded like it couldn't even be true, so any adoption of refunds was going to be a win for consumers. Still, the focus of gaming companies appeared to be on how horrible it all was for them, rather than understanding the legitimate reasons why a customer might seek a refund.

Here to helpfully demonstrate the why is Warner Bros. and its PC port of Batman: Arkham Knight, which is beginning to look like it was designed to be a very prominent middle finger to PC gamers. In case you haven't kept up on what a complete mess the PC version of the game is, all you need to know is that WB's own instructions on how to play it and what's required for minimal settings will have you blinking in surprise. Here's how WB says you should run the game on a minimum system:

Resolution: 1280x720
V-Sync: Off
Anti-Aliasing: Off
Texture Resolution: Low
Shadow Quality: Low
Level of Detail: Low
Interactive Smoke/Fog: Off
Interactive Paper Debris: Off
Enhanced Rain: Off
Enhanced Light Shafts: Off

So, 720p and everything off or low on the details. Okay, that's how you'd typically go about reducing the load on a minimum machine, fine. So what's the now-recommended minimum from WB?

OS: Win 7 SP1, Win 8.1 (64-bit Operating System Required)
Processor: Intel Core i5-750, 2.67 GHz | AMD Phenom II X4 965, 3.4 GHz
Memory: 6 GB RAM
Graphics: NVIDIA GeForce GTX 660 (2 GB Memory Minimum) | AMD Radeon HD 7950 (3 GB Memory Minimum)
DirectX: Version 11
Network: Broadband Internet connection required
Hard Drive: 45 GB available space

Look, I don't want to get into some war with the community over what a modern day gaming machine should look like, but that isn't a minimum system by any standard. Not that this is the first game that doesn't run on a decent modern machine (screw you, NBA2K15), but none of this was expected by gamers or WB, which is why they've been promising a patch ever since the port hit the market and everyone started freaking out. But there's no timeline on that patch, of course, and in the meantime the company is essentially suggesting that you better have a better-than-average rig to even run this game at the minimum specs. But even then...

With these settings on Min Spec AMD GPU’s, users can expect some minor texture pops, occasional loading symbols during fast-paced scenarios, and some hitches & stuttering when gliding or driving the Batmobile. With these settings on Rec Spec AMD GPUs, users can expect some minor texture pops, occasional loading symbols during fast-paced scenarios, and some hitches & stuttering when gliding or driving the Batmobile. To help alleviate this, AMD users using Rec Spec GPU’s should turn Texture Resolution, Shadow Quality, and Level of Detail to Low. We continue to work closely with AMD to resolve these issues as soon as possible; make sure you have the most current drivers and check back here for updates on when the next driver version is available.

Meaning that depending on which GPU manufacturer your machine is using, a min-spec machine and all the settings turned low or off will get you to the point where your game almost works. Woo-hoo! And yet this is where Warner Bros., and Steam, deserve some recognition, because the company is pointing directly to Steam's refund page on the community site to show customers where they can get refunds.

If you purchased your copy of the game through Steam and are not satisfied with your experience, you can request a refund at help.steampowered.com (Steam refund policies can be found here: http://store.steampowered.com/steam_refunds).

And that's why Steam needed a refund policy. The PC gaming community is very loyal to PC games, but that doesn't change the fact that PC gaming includes variables where consoles do not. Performance and machine specs are the chief amongst them. If for no reason beyond that, the refund policy was overdue, rather than something for developers to freak out about.

Filed Under: arkham knight, pc, refunds, video games
Companies: warner bros.

Warner Bros. And Rightscorp Argue That Copyright Trolling Is Protected By The First Amendment

from the that's-one-way-to-look-at-it dept

Is the process of copyright trolling protected by the First Amendment? That appears to be the claim that both Rightscorp and Warner Bros. are making in response to a class action lawsuit filed against them.

Back in November, we wrote about a class action lawsuit filed against Rightscorp, by lawyer Morgan Pietz. Rightscorp, of course, is a company trying (and mostly failing) to make copyright trolling slightly more respectable by shaking down accused infringers (based on a questionable methodology) for somewhat lower amounts than traditional copyright trolls. Morgan Pietz, if you don't know, is one of the key lawyers who helped take down infamous copyright troll Prenda Law -- so his involvement was noteworthy.

Since November, when the lawsuit was initially filed, there's been some back and forth in the lawsuit (and even the main named plaintiff has changed). In the first amended complaint [pdf] that was filed last month with new lead plaintiff, John Blaha, the claims about violations of the Fair Debt Collection Practices Act have been removed, to focus mainly on violations of the Telephone Consumer Protection Act and abuse of process. The TCPA bans autodialing telemarketers, and Pietz is trying to argue that Rightscorp's autodialers fall under this law. The abuse of process claims focus on how Rightscorp got access to various people to shakedown, using DMCA 512(h) subpoenas. This is the process -- which courts have clearly rejected -- by which copyright trolls think they can issue subpoenas to ISPs about potential infringers, without first filing a lawsuit. Every few years, copyright trolls think they've newly discovered this loophole even though the courts have rejected it. The lawsuit has also added key Rightscorp clients, Warner Bros. and BMG, as defendants as well.

Last week, Rightscorp responded [pdf] by arguing that the case should be dismissed under California's anti-SLAPP law. Now, we've been huge supporters of California's anti-SLAPP law and believe that we need a similar federal anti-SLAPP law. Anti-SLAPP laws allow defendants to quickly get lawsuits dismissed when it's clear those lawsuits are nothing more than attempts to silence their public speech (SLAPP standing for "Strategic Lawsuit Against Public Participation.") However, I'm hard pressed to see how robocalling someone demanding they pay up or get sued is "public participation" in any way. Here's how Rightscorp makes its argument however:

The abuse of process claim should be dismissed under California’s anti-SLAPP statute, as Plaintiff’s attempt to recover damages from Defendants and enjoin them from making further subpoena applications impermissibly impairs Defendants’ free speech and petitioning rights. The imposition of the remedies Plaintiff seeks is prohibited as it would unduly burden Defendants’ efforts to invoke legal process to identify copyright violators who illegally distribute Rightscorp’s clients’ protected works. As the California courts have consistently held, claims attacking a defendant’s efforts to invoke the legal system are subject to being automatically stricken under anti-SLAPP.

But that's not true at all. It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech. There are plenty of situations where courts have ruled that such subpoenas are inappropriate -- including (as mentioned above) in nearly identical cases. It's not a free speech issue at all. But having gone down this path, Warner Bros. (Rightscorp's main client) has decided to chime in as well [pdf].

Specifically, Plaintiff’s claim impermissibly challenges Defendant’s petitioning conduct, which is protected under California’s anti-SLAPP statute.

While I'm not convinced that Pietz's class action will survive (for a variety of reasons), the idea that the lawsuit itself should be barred under California's anti-SLAPP law seems ridiculous. The lawsuit is not seeking to block Rightscorp's First Amendment rights. It's seeking to stop robocalls and illegal subpoenas that are used to allow Rightscorp to shakedown people for settlement money by bombarding them with demands to pay up to avoid being sued.

Filed Under: anti-slapp, california, class action, copyright, copyright trolling, dmca, first amendment, morgan pietz, process violations, robocalling, subpoena
Companies: rightscorp, warner bros.

No Copyright Lives Forever: How The Apathy Of IP Rights Holders About Their Copyrights Killed A Game Re-Release

from the way-to-go dept

If you were gaming on a PC just after the turn of millennium, you likely fondly remember the classic game No One Lives Forever. A genre turning first-person shooter that featured a strong, reasonably dressed female hero and a setting inspired by 1960's spy films was received incredibly well by both critics and fans. And, because retro PC gaming continues to have a strong following, any of you that know what we're talking about here are probably thinking you'd like to fire up a copy of No One Lives Forever on your updated machine and give it another go. Well, you can't. You should be able to, but you can't. And you have a complicated web of copyright and trademark rights-holders to thank for it.

Even if you're a fan of retro-gaming, you may not be familiar with the company Night Dive Studios. Night Dive is the group that buys up the rights to older games, optimizes them for new machines, and then re-releases them on Steam and other outlets like GOG.com. They've done this with big-name titles in the past and they really wanted to do the same with No One Lives Forever and its sequel. And, because this is a reputable business we're talking about, they decided to secure the rights for the game first. And that's where it all went to hell.

Night Dive's detective work began with tracking down and speaking with the game's original developer and publishers. That meant getting in touch with the three main players: Warner Bros., Activision, and 20th Century Fox.

NOLF and its sequel were developed by Monolith, who are now owned by Warner Bros., under whom they released the acclaimed action game Shadow of Mordor just last year. NOLF was made using a framework called the LithTech engine, which is also now owned by Warner Bros. However, the first game was published by Fox Interactive, and there's a question of whether 20th Century Fox or even Activision might have partial rights to the series, due to Activision's 2008 merger with Vivendi, a separate media company that had acquired Fox Interactive in 2003.

Here's where this gets really depressing. Because the game was released in an age before digital document filing was in widespread use, the rights contracts and paperwork we're talking about here are all literally paperwork. And, after communicating with Activision, Fox, and Warner Bros., the response from all three was to essentially state, "We don't really know if we have any rights here, and we aren't going to look for the paperwork to make sure, but if you make the game and it turns out we do have those rights you'll be facing legal action from us." Keep in mind, this was the response from all three publishers who would take legal action concerning rights all three couldn't be bothered to determine if they even had. You can imagine how frustrating that must be when, like Night Dive's Larry Kuperman experienced, you just want to re-release a game and nobody can tell you who owns it. Take Kuperman's interaction with Activision, for instance, to get an idea of how absurd this all is.

"So we went back to Activision and, [after] numerous correspondence going back and forth, they replied that they thought they might have some rights, but that any records predated digital storage. So we're talking about a contract in a box someplace." Kuperman laughed. "The image I get is the end of Indiana Jones… somewhere in a box, maybe in the bowels of Activision, maybe it was shipped off to Iron Mountain or somewhere. And they confessed, they didn't have [their] hands on it. And they weren't sure that they even had any of those rights."

In a sane world, intellectual property rights that a company can't be bothered to find out if they even have shouldn't be rights that can then be sued over. Either they're important or they aren't, and if they're important they should be maintained.

The upshot of this is that Night Dive discovered that, surprisingly, nobody owned the trademark for the game, so they filed a claim to it. Months later, Kuperman found out that Warner Bros. had filed an opposition to get an extension on the time they could use to determine if they had a trademark claim to the name. Again, they didn't know if they had the rights, but they wanted to find out just to see if they could enforce legal action with them. The trademarks and other intellectual property would be used solely for legal action, as it quickly became clear that none of the companies involved had any interest in actually helping Night Dive re-release the game, even if they could have made money off of the arrangement.

We wanted Warner involved with this," Kuperman told me, "so we said, there's two ways we could work together. First, and our preference, is that we would do a licensed deal. We would pay them some amount of money up front to show that we're serious, and then we would give them a backend share of revenues. And if that didn't work for them, if they wanted to be the publisher of record, we'll still do the development and the optimization of the game, and instead of our giving them a backend share, [they] give us a backend share. In either case, it seemed to us that they were gonna be making money that they wouldn't have been making otherwise, with a minimum amount of effort. We weren't meeting with a lot of enthusiasm. In fact, most of the phone calls were like, 'That'll probably never happen.'"

Activision and Fox responded similarly, saying they weren't sure if they had any rights but not offering any kind of permission to move forward and retaining the option of legal action if Night Dive re-released the game. Keep in mind, please, that this frustrating nonsense is all the result of Night Dive attempting to do the right thing and license the game properly. And, for those efforts, they even got a legal threat from Warner Bros., because apparently nobody over at Warner bothers to talk between departments.

Then, in December of 2014, Kuperman and Kick heard from a lawyer representing Warner Bros. Kuperman explained: "Steve [got] what I like to call, the legal term for it is a 'Scary Letter.' It comes from an attorney representing Warner Bros. and basically says they're aware of our filing for trademark, that they had contested that, and that if we went forward, specifically with a new version of No One Lives Forever, without doing a new deal with them, we would be infringing their rights and the hammer would fall."

And that was after Night Dive had been desperately trying to do such a deal and meeting with nothing but questions over whether any of these rights Warner's lawyer mentioned even existed. Warner further followed up saying they were no longer interested either in working with Night Dive to publish the game or publish it themselves, meaning Warner Bros. has made the conscious decision to let No One Lives Forever die off for good. Night Dive says it has given up the attempt and gamers who wanted a legitimate way to get a beloved old game are forced down the roads publishers claim are evil.

The people at Night Dive have ceased their attempts to re-release No One Lives Forever. They now control the trademark, but without a game to use it on, they're going to let it lapse. No One Lives Forever will remain unavailable on digital stores, and modern gamers who want to play the games will have to either track down scarce physical copies or resort to illegally torrenting them.

Intellectual property: important enough to publishers that they'll use it to kill off the attempt to release an old game, but not important enough to know if they actually have the rights to begin with.

Filed Under: copyright, licenses, no one lives forever, old games, re-releases, retro gaming, video games
Companies: 20th century fox, activision, night dive studios, warner bros.

Studios Fed Up With Funding The MPAA: Changes May Be Coming

from the about-time dept

A few years ago, the major record labels finally started to realize that, perhaps, shoveling many millions of dollars to the RIAA was a waste of good money, and they severely cut back funds. You may have noticed that, while the RIAA had taken the lead on the copyright front in the first decade of the new century, over the past few years, it's been a lot quieter than the MPAA. It appears that the MPAA may be about to go through a similar transition. Just a few weeks ago, we pointed out that the MPAA seemed to be desperately trying to justify its existence by doubling down on ridiculous and misleading claims about "piracy" and "content theft" rather than actually helping studios adapt to the modern era. We also noted that MPAA boss Chris Dodd was on something of an apology tour after the MPAA was caught completely off guard by the Sony Hack and did basically nothing about it, seriously pissing off execs at Sony.

There's a reason Dodd was groveling. It appears that the studios are finally realizing that maybe the MPAA isn't working in their best interests after all, but is just focused on justifying its own existence:

In a behind-the-scenes drama, the Sony Pictures chairman Michael Lynton last month told industry colleagues of a plan to withdraw from the movie trade organization, according to people who have been briefed on the discussions. He cited the organization's slow response and lack of public support in the aftermath of the attack on Sony and its film “The Interview,” as well as longstanding concerns about the cost and efficacy of the group.

While the MPAA convinced Sony to stay in, it appears that the major studios are thinking it's about time the MPAA shift its focus -- and tighten its belt a bit:

If adopted, their still emerging propositions might jolt the group into line with the new realities of a changing entertainment business. They might, for instance, open the association to new members and expand its interests to include television programs or digital content. They might also reduce the heavy annual contribution of more than $20 million that is required of each of the six member companies: Walt Disney, Warner Bros., Paramount Pictures, 20th Century Fox, Universal and Sony.

The report notes that they might even give up their super fancy DC headquarters (the "Jack Valenti Building") which is just blocks from the White House.

Of course, it's not entirely clear how the MPAA's focus will actually change. It wouldn't be surprising to find some studio execs still want to double down on backwards-thinking, anti-internet campaigns. But, at least some seem to recognize that Hollywood hasn't kept up with the times, and that's partly because the MPAA kept focusing them on the last war, rather than on updating for the internet era.

Kevin Tsujihara, the chief executive of Warner Bros., said he, like Mr. Dodd, welcomed an examination of the organization that would mirror a similar review of cost and mission at his company. “Now is as good a time as any” to look at fundamental questions, Mr. Tsujihara said in an interview. He added: “We haven’t, as an industry, evolved fast enough.”

And, as we've pointed out, it really seems bizarre that the MPAA spends so much on an entire "content protection" division. At least some of the studios appear to be questioning the value of that approach:

But those briefed on the position of several companies said virtually all the studios have chafed lately at the high cost of maintaining the M.P.A.A., along with its worldwide antipiracy and market access operations, particularly as Sony, Warner and others are cutting staff and costs.

Frankly, as we've argued for years, it would be great if the MPAA actually became a forward-looking organization that looked to help the industry adapt to the modern era. It appears the organization is going through an inevitable crisis after years of making bad bets. Hopefully, it recognizes that embracing the future, rather than fighting it, is the way forward.

Filed Under: chris dodd, content protection, hollywood, lobbying, michael lynton, sony hack, studios
Companies: mpaa, sony, warner bros.