UK Music Rights Group Demands Payment From A Pub That Isn't Playing Any Music Because It's Closed Due To COVID

from the nature-is-healing dept

It's been a while since we last wrote about PRS for Music, the UK music collection group that is somewhat infamous for its overly aggressive demands for payment from anyone playing music anywhere in the UK. There was the children's charity that was ordered to pay royalties for singing Christmas carols. There was the auto mechanic who was told they needed to pay up because the mechanics in the garage had a radio on loud enough that customers inside the waiting area could hear and enjoy the music. There was the horse owner, who realized that her horses were calmer when classical music was playing, and PRS declared this was a public performance and demanded she pay up. Or how about the grocery store that PRS said needed to pay up because a staff member was singing while stocking the shelves? PRS is nothing but a shakedown business. It came out that its "investigators" are actually considered to be salespeople inside the organization -- meaning they have revenue targets to meet. In other words, they'll look for anything to demand a license. Indeed, another report we had pointed out that they would call random small businesses and demand payment if they heard any music in the background.

Most of those reports came about a decade ago, but it appears that PRS for Music has continued its assholish ways. The Harlequin Pub in Sheffield hasn't been playing music lately because it's closed. It's been closed because there's a pandemic going on (you may have noticed). There certainly isn't any live music happening at the pub. But, no matter, PRS and the other big music collection agency in the UK, PPL, demanded payment anyway:

After the pub complained about the issue on Twitter, back in December, PRS passed the buck, saying it was actually an issue for its subsidiary organization, PPL PRS (a confusing joint venture of the separate organizations PPL and PRS). PPL PRS chimed in to say they'd resolve the issue in Twitter DMs (which... seems odd).

In a later tweet, PPL PRS insisted that no businesses that had to close would need to pay for their music license.

Of course, if that's the case, why is the organization sending out shakedown demands in the first place? Shouldn't they have checked first to make sure the business was open and actually playing music in the middle of a pandemic?

Either way, it appears that the promises from PRS and PPL PRS to not demand payments were, like so much coming from music collection societies, a lie.

Exactly a month after PPL PRS promised not to charge the Harlequin Pub... it passed the payment demand onto a debt collection agency which began to bug the closed pub for money.

Harlequin Pub's full comment on Twitter reads:

hi @pplprs - thanks for getting a debt collection agency to contact me i wonder if you could provide me with a list of dates/events that you think you're owed money for please? i hope you can understand that i'm not keen on handing money out to companies for no reason. at your request, i have been chatting with someone from your company via direct message, and explained that we've been closed in line with national and local lockdowns, and furthermore that we cancelled all live music from march 2020 onwards. for some reason, though, this hasn't been sufficient for you. unless your company is all of a sudden collecting fees from pubs for opening their doors, or selling take-outs (which i suspect is slightly out of your remit?) i fail to see why you think i owe you anything? i know i'm not the only venue that you are using these tactics on, and am fairly certain that the money you collect should be going to musical artists rather than bullying an industry that is on its knees by engaging debt collection agencies to collect spurious debts. anyway, a breakdown of dates and events to justify the c. £1600 fee plus the presumed impact on my credit rating would be lovely, if you can manage it. cheers - happy new year!

As I write this, there appears to be no response from PRS or PPL PRS.

I know that many musicians rely on collection societies to earn money, but these increasingly appear like traditional organized crime operations, shaking down small businesses for cash.

Filed Under: collection society, copyright, covid, debt collectors, licensing, shakedown, uk
Companies: harlequin pub, ppl, pplprs, prs, prs for music

Ridiculous: 'Cyberpunk 2077' Will Ship With A Mode Just To Help Streamers Avoid DMCA Notices

from the thanks-twitch dept

You will likely have been following along with us as we have steadily commented on the ongoing controversy at Twitch. But if you're not read up on the topic, Twitch suddenly nuked zillions of hours of recorded content made by Twitch streamers in response to RIAA and game publisher DMCA notices, all without warning and all without a way to counternotice or get any of that content back. As the community went into revolt, Twitch continued taking down content, at times for sound effects within the games streamers were streaming. All the while, Twitch has issued a steady stream of apologies, while the streamer community has basically just shouted "Well then do something!" in response.

But Twitch hasn't done anything. Not a damned thing. Which means it's been left to the forward-thinking game publishers that actually realize how beneficial these streamers are to their own success to do something instead. To that end, it's both great that CD Projekt Red has announced the forthcoming blockbuster Cyberpunk 2077 will have a game mode dedicated to using stream-safe music for streamers... and completely ridiculous that the publisher even has to do something like this.

During the latest installment of long-form Cyberpunk commercial series “Night City Wire,” UK head of communications Hollie Bennett explained that the game will have a mode that will not only remove licensed music from the in-game rotation but replace it with music that won’t get creators’ channels zapped out of existence. Handy!

“If you’re planning on livestreaming Cyberpunk, or if you just want to make videos, we want to introduce you to a new mode that will allow you to disable certain copyrighted tracks,” Bennett said. “We know that for content creators, licensed music can sometimes be problematic. So with this new mode, you’ll be able to disable a small number of selected tracks which could cause some issues, replacing them with a different song—helping to avoid any problems.”

So because Amazon-owned Twitch couldn't be bothered to simply license the music in games in some sort of blanket manner, and because the music industry is so cartoonishly impermissive with its content, a game publisher has to step in to help. This comes as part of CD Projekt Red's long history of being fan and public friendly, but it really shouldn't have had to take such measures. Somebody somewhere along the way should have been on the side of the streamers who make these game products more popular, leading to more sales.

It’s still far from an ideal solution—nothing short of Amazon and Twitch striking a licensing deal with the music industry would be—but for now, it will have to do.

For now it will indeed have to do. But it sure would be nice if streaming platforms generally, and Twitch in particular, could get their collective heads out of their asses long enough to get their shit together and support their communities.

Filed Under: copyright, cyberpunk 2077, dmca, licensing, streaming, streaming safe mode, takedowns, video games
Companies: amazon, cd projekt red, riaa, twitch

Happy 20th Birthday To 'No One Lives Forever', The Classic PC Game That Can't Be Sold Today Thanks To IP

from the and-yet-it's-dead dept

There are a great many interesting arguments we tend to have over both the purpose of copyright law and how effectively its current application aligns with that purpose. Still, we are on fairly solid legal footing when we state that the main thrust of copyright was supposed to be to drive more and better content to the public. Much of the disagreement we tend to have with naysayers revolves around whether ever expanding rights coupled with protectionist attitudes truly results in more and better content for the public. We, to a large extent, say the current copyright bargain is horribly one-sided against the public interest. Detractors say, essentially, "nuh-uh!".

But if one were to distill the problems with the current state of copyright to their most basic forms, you would get No One Lives Forever. The classic PC shooter/spy game was released way back in 2000, times of antiquity in the PC gaming space. It was a critically acclaimed hit, mixing Deus Ex style shooter missions, spycraft, and an aesthetic style built on 1960s classic spy films. And, as RockPaperShotgun reminds us, No One Lives Forever celebrated its 20th birthday this November.

If you remember the game fondly, or perhaps if you never played it and are curious as to why there's so much love for the game, you might be thinking about going and getting a copy for yourself to play. Well, too bad. You can't.

FPS spy romp No One Lives Forever turns 20 today but alas Cate Archer is still confined to her room, unable to come out and play. The secret agent shooter has been tied up in legal gridlock for years. You’ll not find it for sale online aside from second-hand, but that hasn’t stopped RPS singing its praises all this time. A remaster still seems unlikely, but Nightdive Studios say they aren’t done trying to make it happen.

Legal gridlock is being extremely kind. Why you cannot buy this game is one of the most frustrating stories in intellectual property. We discussed much of this back in 2015. Nightdive Studios is a company that buys up the rights to older video games, updates and/or remasters them for modern gaming hardware, and then rereleases them. And we're talking about a professional operation that has managed to rerelease games like Doom 64, 7th Guest, and System Shock. In other words, these guys are legit and they know what they're doing.

And they really, really wanted to give No One Lives Forever the treatment. There was just one problem: nobody seems to know who holds the copyright for the game, but everyone independently has told Nightdive that they'll sue if they make the game. Warner Bros., Activision, and 20th Centry Fox all might own the copyright to the game, except that the paperwork for how the rights all shake out was contrived in a time before such records were digitized. So, someone owns the rights to this game. And Nightdive very much wants to work out an arrangement with whoever that someone is. But none of the three potential owners are willing to go hunt down the paperwork so such a deal could be worked out.

You can get a sense of how each is communicating with Nightdive from our original post on the subject.

"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."

And yet Nightdive was also told by all three entities, independently mind you, that they might own some rights and would go find out if Nightdive tried to rerelease the game to see if they could sue over it. The end result is a game that can't be released legitimately to the public over rights three companies insist are important enough to sue over, but not so important that they should know if they even have those rights to begin with.

Which brings us back to the RPS post, five years later on the 20th birthday of No One Lives Forever, where we find out that essentially zero progress has been made.

As one of the best FPS games on PC, it seems plenty worthy of a remaster or re-release, but efforts on that front have died in the water over the past decade or more. Hit any one of those quoted links to get the evolving story, but the short version is this: Nightdive Studios, who want to modernise No One Lives Forever, don’t own the rights to it. More than one company might have legal claim to it, but none of them are terribly motivated to unearth stacks of paper contracts literally hidden in basements. They’re just sure they don’t want anyone else making money off it without them. So Cate’s all tied up in the super villain’s lair without a Deus Ex Machina to save her.

On that front, Nightdive recently told The Gamer that they aren’t done trying to make it happen. “It is a process that we’re continuing,” said director of business development Larry Kuperman. “We continue on with our mission to unearth and bring back these classic games.”

And so the public is flatly denied legitimate access to content that is a piece of our culture over copyrights nobody can say for sure if they have. I can't claim to crawl into the founding fathers' heads to say precisely how they wanted copyright to work, but it sure as shit can't be like this.

Filed Under: copyright, licensing, limitations, no one lives forever, rights, updates, video games
Companies: 20th century fox, activision, nightdrive studio, warner bros.

Libraries Have Never Needed Permission To Lend Books, And The Move To Change That Is A Big Problem

from the permission-culture dept

There are a variety of opinions concerning the Internet Archive's National Emergency Library in response to the pandemic. I've made it clear in multiple posts why I believe the freakout from some publishers and authors is misguided, and that the details of the program are very different than those crying about it have led you to believe. If you don't trust my analysis and want to whine about how I'm biased, I'd at least suggest reading a fairly balanced review of the issues by the Congressional Research Service.

However, Kyle Courtney, the Copyright Advisor for Harvard University, has a truly masterful post highlighting not just why the NEL makes sense, but just how problematic it is that many -- including the US Copyright Office -- seem to want to move to a world of permission and licensing for culture that has never required such things in the past.

Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.

What's really set Courtney off is that the Copyright Office has come out, in response to the NEL, to suggest that the solution to any such concerns raised by books being locked up by the pandemic must be more licensing:

The ultimate example of this licensing culture gone wild is captured in a recent U.S. Copyright Office letter. Note that this letter is not a legally binding document. It is the opinion of an office under the control of the Library of Congress, that is tasked among other missions, with advising Congress when they ask copyright questions, as in this case.

Senator Tom Udall asked the Copyright Office to give its legal analysis of the NEL and similar library efforts, and it did so... badly.

The Office responded with a letter revealing their recommendation was not going to be the guidance document to “help libraries, authors, and online outlets,” but, ultimately, called for more licensing. It also continued a common misunderstanding of an important case, Capitol Records, LLC v. ReDigi Inc., 910 F. 3d 649 (2d Cir 2018).

We've written about the Redigi case a few times, but as Courtney details, the anti-internet, pro-extreme copyright folks have embraced it to mean much more than it actually means (we'll get back that shortly). Courtney points out that the Copyright Office seems to view everything through a single lens: "licensing" (i.e., permission). So while the letter applauds more licensing, that's really just a celebration of greater permission when none is necessary. And through that lens the Copyright Office seems to think that the NEL isn't really necessary because publishers have been choosing to make some of their books more widely available (via still restrictive licensing). But, as Courtney explains, libraries aren't supposed to need permission:

Here’s the problem though: these vendors and publishers are not libraries. The law does not treat them the same. Vendors must must ask permission, they must license, this is their business model. Libraries are special creatures of copyright. Libraries have a legally authorized mandate granted by Congress to complete their mission to provide access to materials. They put many of these in copyright exemptions for libraries in the Copyright Act itself.

The Copyright Office missed this critical difference completely when it said digital, temporary, or emergency libraries should “seek permission from authors or publishers prior” to the use. I think think this is flat-out wrong. And I have heard this in multiple settings over the last few months: somehow it has crept into our dialog that libraries should have always sought a license to lend books, even digital books, exactly like the vendors and publishers who sought permission first. Again, this is fundamentally wrong.

Let me make this clear: Libraries do not need a license to loan books. What libraries do (give access to their acquired collections of acquired books) is not illegal. And libraries generally do not need to license or contract before sharing these legally acquired works, digital or not. Additionally, libraries, and their users, can make (and do make) many uses of these works under the law including interlibrary loan, reserves, preservation, fair use, and more!

And, yes, Congress has already made it clear that libraries hold a special place with regard to copyright:

Libraries can make these uses of their legal acquired books without permission because the copyright system, via Section 109 first sale, maintains the market balance long recognized by the courts and Congress as between rightsholders and libraries. Libraries sit right in the middle of the economic purpose of copyright (we buy the books!) and the access purpose of copyright (we loan the books!) – or in the Constitutional narrative, “to Promote the Progress of Science and the Useful Arts” libraries provide unfettered access and freedom to the books they purchase.

When a library legally acquires a book via a sale, it has the right, under the first sale doctrine, to continue to loan that work unimpeded by any further permission or additional fees to the copyright holder. No license is needed. A digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it is one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The authors have been paid (as have the publishers) in that first transaction.

Congress, when it legislated the copyright exceptions, made it possible for libraries to fulfill their “vital function in society” by enabling the lending of books to benefit the general learning, research, and intellectual enrichment of readers by allowing access to these materials. And arguably, now that we are in the 21st century, why should we not use technology to allow this loaning to continue online? Let libraries use technology (the same used by the publishers, for example) to INCREASE access to these works, especially during a pandemic.

Courtney then goes on to point out that the whole "license everything" concept fundamentally eviscerates the concept of ownership of private property. Once we've bought something, we should be able to do what we want with it, and the push here to now force libraries to get licenses for books they already own is a direct attack on property rights:

Licenses continue to eviscerate ownership rights for patrons, libraries, and the general public under very restrictive terms. And, these licenses are absolutely not the equivalent of a purchase. These vendors may use the word “buy it now” or “purchase” or “for sale” but, when you read the fine print – it is absolutely the opposite....

When a library or patron agrees to these licenses, at best they are merely renting or leasing temporary access to these works.

Even worse, because a library has special exceptions to copyright as built into law, when we move into a copyright world, libraries are effectively giving up those rights:

Or, in some licenses, the terms are so limited that libraries or their patrons are restricted from the very uses, exceptions, or exemptions made legal in the Copyright Act. I pulled an example of one of the more common licensing clauses:

“Except as explicitly authorized in this License, you agree not to archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, or use content and information contained on or obtained from the Work....” and “articles, chapters, and other materials made available via this License may not be used for the purpose of interlibrary loan...”

This license takes away nearly all the copyright exceptions for libraries, and many exceptions for the public as well. Licenses do often restrict use beyond what copyright law might otherwise allow. And the licenses do not have consistent language relating to library uses, so they are all different, and all full of boilerplate limiting terms. What other rights are these licenses interfering with?

And after digging into the variety of ways in which copyright law is structured, Courtney makes it clear that libraries have a clear first sale right to lend out books they have in their possession:

Additionally, under Section 109, first sale, a library can place a book on reserve and let it be accessed or checked out as many times as it can. Each patron uses and returns the book – and there is no license, no additional payment, and the library or user does not have to seek any further permission from the copyright holder. Some books have been read hundreds of thousands of times on reserves! The author and publisher were compensated for that first purchase, and from there, the access and loaning can continue unfettered.

As for the ReDigi case regarding digital first sale, Courtney points out that the Copyright Office is blatantly misreading it to make it say a lot more than it really does, specifically with regard to how it impacts libraries and their first sale rights:

Here is the main difference: these ReDigi resales the court examined were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the working market experiencing harm.

However, again, a library is not a commercial for-profit company. The books they own, via first sale, are not licensed mp3s. There is clearly a distinguishable analysis here.

For digitized copies of legally acquired print books under the first sale doctrine, the substitutionary effect is

far less clear. With most 20th-century books, the vast majority of books in a library’s collection, the market has almost been exclusively print-based. And, for those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

Secondarily, the ReDigi court raises a significant question as to whether using digitized copies of legally acquired books may be “transformative” in nature – a modern fair use test adopted by the U.S. Supreme Court. In the decision, examining the first factor of fair use, Judge Level, who established the concept of transformative fair use in a law review article, explained that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” This sounds awfully close to correct analysis for modern libraries loaning digital copies of books.

There's a lot more in Courtney's analysis, but it is very thorough, and a fairly complete debunking of the Copyright Office's (and others') push that the answer to libraries being shuttered due to the pandemic is merely "more licensing."

Filed Under: copyright office, covid-19, culture, first sale, lending, libraries, licensing, national emergency library, permission
Companies: internet archive

That Coronavirus Image Is Public Domain, But That Won't Stop Getty From Trying To Sell You A $500 License To Use It

from the seriously,-guys? dept

Late last week, we wrote a nice story about how the infamous image of the coronavirus that is causing COVID-19 is in the public domain, since it's a work of the US federal government. That's part of the reason why it's everywhere these days:

But, as one of our commenters pointed out, that won't stop Getty Images from trying to sell you a license to the image (even complete with the CDC logo on it, which takes real balls by Getty) for an astounding $500.

I mean, the text with the image even directly says that it was created at the CDC. You'd think some worker bee at Getty might recognize that this makes it public domain.

Getty has a bit of a history of this, and was even sued by a photographer for trying to license images that she had put into the public domain. To be clear, Getty is not violating any law here. Something that's in the public domain is free for use in any manner, meaning that you certainly could try to sell it, though it does seem a bit sleazy and dishonest, especially at a time when news about the coronavirus is so important.

What would be problematic, of course, is if Getty actually threatened, sent DMCA takedowns, or sued over anyone using the image. Because that would be bullshit. It's a little unclear exactly how Getty got this image. It's listed as part of the "Smith Collection/Gado." However, it's hard to find out what exactly that means. There is a company called Gado Images, which mixes a bunch of buzzwords about AI with stuff about archiving photographs. I'm not sure I understand what one has to do with the other. It says it's using AI for "digitizing, capturing and sharing the world's visual history." And licensing it, perhaps. But if the images are not Gado's to share, then that raises a whole bunch of other questions.

Either way, the whole thing is pretty sleazy, and Getty should either (a) take it down, or (b) admit that it is public domain and make it freely available.

Filed Under: cdc, copyright, coronavirus, licensing, public domain
Companies: gado images, getty images

Judge To Art Licensing Agency: No, Your Stupid Unicorn Is Not More Important Than COVID-19 Right Now, Shut Up

from the slightly-paraphrased dept

Pretty much everyone by now should recognize that large parts of the world have needed to shutdown due to COVID-19 -- and you would hope that most people would be understanding that certain things may need to be delayed for a bit. But apparently not lawyer Michael Hierl from the law firm of Hughes Socol Piers Resnick & Dym, and his client, a copyright licensing agency called Art Ask Agency, based in Spain. On March 9th, Art Ask Agency sued a bunch of unnamed defendants (their identity to be determined later), in US federal court in Illinois, over what it calls "counterfeit" images of a unicorn designed by artist Anne Stokes. Stokes apparently does brisk work in unicorn-related merchandise, as seen by her page on Art Agency's website:

And, boy, is Art Agency ever so mad that there are "counterfeit" unicorns out there, which they claim violate Stokes trademark and copyright. Art Agency is so mad, that it's tossing out totally random fantasy numbers that have nothing to do with the specific works in this case:

The success of Plaintiff’s brand has resulted in its counterfeiting. Plaintiff has identified numerous domain names linked to fully interactive websites and marketplace listings on platforms such as iOffer and Aliexpress, including the Defendants’ Internet Stores, which were offering for sale, selling, and importing counterfeit products to consumers in this Judicial District and throughout the United States. Defendants have persisted in creating the Defendants’ Internet Stores. Internet websites like the Defendant Internet Stores are estimated to receive tens of millions of visits per year and generate over $135 billion in annual online sales. According to an intellectual property rights seizures statistics report issued by Homeland Security, the manufacturer’s suggested retail price (MSRP) of goods seized by the U.S. government in 2013 was over $1.74 billion, up from $1.26 billion in 2012. Internet websites like the Defendants’ Internet Stores are also estimated to contribute to tens of thousands of lost jobs for legitimate businesses and broader economic damages such as lost tax revenue.

Then there's a lot of conspiracy theory stuff about how the defendants hide who they are and part of this lawsuit is to try to figure out who is selling those darn counterfeit unicorns. As the plaintiff admits, many of the sellers are likely in China, meaning it's unlikely (1) they'll be found or (2) that a federal court in the US can do much to people in China printing counterfeit t-shirts. It seems the real goal of the lawsuit is to get a court order that can be passed along to various internet merchants to pressure them to take down the listings. Part of the relief sought is:

Entry of an Order that, upon Plaintiff’s request, those in privity with Defendants and those with notice of the injunction, including any online marketplaces such as iOffer and Alibaba Group Holding Ltd., Alipay.com Co., Ltd. and any related Alibaba entities (collectively, “Alibaba”), social media platforms, Facebook, YouTube, LinkedIn, Twitter, Internet search engines such as Google, Bing and Yahoo, web hosts for the Defendants’ Domain Names, and domain name registrars, shall:

a. disable and cease providing services for any accounts through which Defendants engage in the sale of counterfeit products using the Anne Stokes trademark or which are derived from the copyrighted artwork, including any accounts associated with the Defendants listed on Schedule A;
b. disable and cease displaying any advertisements used by or associated with Defendants in connection with the sale of counterfeit products using Plaintiff’s trademark or which are derived from the copyrighted artwork; and
c. take all steps necessary to prevent links to the Defendants’ Domain Names identified on Schedule A from displaying in search results, including, but not limited to, removing links to the Defendants’ Domain Names from any search index;

So, in short, Art Agency and Stokes want the court to issue an order that they can wave at various stores and search engines demanding they delist the various "counterfeit" unicorn merch. Indeed, a day after filing the complaint, the lawyer, Hierl, requested a temporary restraining order (TRO) on the still nameless defendants. He's also filed a bunch of stuff under seal, which is a bit confusing in a case like this, but given some of the conspiratorial language in the complaint -- and Hierl later also suggesting that if the defendants were to become aware that he was after them they may alter their tactics and hide -- perhaps that's all part of the plan.

As you might imagine, the court is a wee bit busy with everything else going on right now. So, it said rather than an immediate hearing, it needed to push off a hearing until April 13. In the grand scheme of things... not that long. Hierl, quickly filed an ex parte motion saying that it was really super duper important to have the hearing immediately, because counterfeit unicorns were at stake, dammit.

Due to the nature of Plaintiff's claims and the existence of irreparable injury, Plaintiff respectfully requests this Court to re-set its Ex Parte Motion for Entry for a Temporary Restraining Order for presentment during the week of March 16, 2020. Plaintiff is willing to appear telephonically or otherwise make itself available for the presentment of Plaintiff's motion.

Delay of entry of Plaintiff's Ex Parte Motion for Temporary Restraining Order would result in significant irreparable injuries to Plaintiff, continue harm to the consuming public and denial of the protections that only this Court can afford.

Dude's in quite a rush, it seems. The same day (last Monday) that Hierl made this request to have the hearing as quickly as possible, rather than waiting until April, the Court responded saying, in not so many words, "Dude, everyone's impacted by COVID-19, all cases are impacted, including yours, and be a little patient." More specifically, it pointed him to the following notice, which makes it clear that many things are getting pushed back and the court isn't having any hearings for a few weeks due to COVID-19.

You would think that lawyer Hierl might get the message. But, no. UNICORNS are at stake. Counterfeit unicorns. He filed an emergency Ex Parte Motion, demanding a TRO as soon as possible.

On Wednesday, Judge Steven Seeger, who's only been on the bench for a few months, denied the motion two days later, and was, uh, pretty clear to Hierl that unicorns, counterfeit are not, are not exactly the most pressing matter at this moment:

This case involves counterfeit unicorn drawings. The complaint includes a few examples of products that allegedly infringe Plaintiff’s trademarks, which offer “striking designs and lifelike portrayals of fantasy subjects.”... One example is a puzzle of an elf-like creature embracing the head of a unicorn on a beach.... Another is a hand purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns... There are phone cases featuring elves and unicorns, and a unicorn running beneath a castle lit by a full moon....

Meanwhile, the world is in the midst of a global pandemic. The President has declared a national emergency. The Governor has issued a state-wide health emergency. As things stand, the government has forced all restaurants and bars in Chicago to shut their doors, and the schools are closed, too. The government has encouraged everyone to stay home, to keep infections to a minimum and help contain the fast-developing public health emergency.

The United States District Court for the Northern District of Illinois took action last week to protect the public, issuing General Order No. 20-0012 entitled IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY. See www.ilnd.uscourts.gov (last visited March 16, 2020) (bold and all caps in original). On March 16, the Executive Committee issued an amended Order that, among other things, holds all civil litigation in abeyance.

Judge Seeger is just warming up.

Last week, Plaintiff filed a motion for a temporary restraining order (Dckt. No. 11) against the Defendants (who are located abroad) and requested a hearing.... This Court thought that it was a bad time to hold a hearing on the motion. So, this Court moved the hearing by a few weeks to protect the health and safety of our community, including counsel and this Court’s staff. See Dckt. No. 19. Waiting a few weeks seemed prudent.

Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, Defendants might sell a few more counterfeit products in the meantime. But Plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment.

Uh oh, Hierl. This ain't going well.

On the flipside, a hearing – even a telephonic one – would take time and consume valuable court resources, especially given the girth of Plaintiff’s filings. See Dckt. Nos. 1, 6-7, 11-18. And the proposed temporary restraining order would require the attention of innocent third parties, and create a cascade of obligations. Plaintiff wants to force financial institutions to lock down accounts, and require domain name registries to shut down websites, for example. See Dckt. No. 12. Plaintiff requests an order forcing innocent third parties – such as Amazon, eBay, PayPal, Alibaba, Western Union, plus social media platforms such as “Facebook, YouTube, LinkedIn, [and] Twitter,” plus internet search engines such as “Google, Bing and Yahoo,” among others – to spring into action within two or three days. Either the order would be a nullity, or it would distract people who may have bigger problems on their hands right now.

The judge ain't done yet.

Plaintiff recognizes that the community is in the midst of a “coronavirus pandemic.”... But Plaintiff argues that it will suffer an “irreparable injury” if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves.... To top it off, Plaintiff noticed the motion for a hearing on March 19, 2020, a day that has been blocked off on the Court’s calendar – as revealed on its webpage – for several weeks....

Meanwhile, the Clerk’s Office is operating with “limited staff.”... “[P]hone conferencing” is available “in emergency situations and where resources permit.” ... The Court can still hear emergency motions, but resources are stretched and time is at a premium... If there’s ever a time when emergency motions should be limited to genuine emergencies, now’s the time.

And, to be clear, at this point, Judge Seeger is still talking about the original Ex Parte motion to move the hearing up. Now we get to the "Emergency" Ex Parte Motion.

Thirty minutes ago, this Court learned that Plaintiff filed yet another emergency motion. They teed it up in front of the designated emergency judge, and thus consumed the attention of the Chief Judge.... The filing calls to mind the sage words of Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” ...

The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.

Yeah, take your fake unicorns and shut the fuck up right now.

Oh, and then just a bit later, Judge Seeger denied the Temporary Restraining Order, and once again, tries to put things in perspective for Hierl and his client.

Plaintiff's Ex Parte Motion for Entry of a Temporary Restraining Order (Dckt. No. [11]) is denied without prejudice. Injunctive relief is an "extraordinary remedy," and it is "not granted routinely."... Here, Plaintiff makes next to no showing that it will suffer irreparable harm unless this Court issues emergency relief. The gist of the motion is that Plaintiff will suffer harm from the sale (and the offer for sale) of counterfeit unicorn products on the internet. But Plaintiff gives this Court no information about the anticipated loss of sales. Not even an estimate. Plaintiff doesn't even tell this Court anything about its own sales, let alone anything about the volume of sales that it will lose without immediate Court action. Maybe the loss of sales is de minimis, or maybe not. But the point is that Plaintiff has made no such showing. A generic allegation of harm, without more, does not weigh heavily in the balance. On the flipside, one of the most important considerations before awarding equitable relief is the public interest. Here, Plaintiff proposes a bloated order that imposes extraordinary demands on third parties, including a wide array of technology companies and financial institutions. (Dckt. No. [30]) Plaintiff's proposed order would require immediate action, in a matter of days, from firms that have nothing to do with this case. In the meantime, the country is in the midst of a crisis from the coronavirus, and it is not a good time to put significant demands on innocent third parties. See generally General Order 20−0012 (as amended on March 17, 2020). All of them undoubtedly have (more) pressing matters on their plates right now. To put it bluntly, Plaintiff's proposed order seems insensitive to others in the current environment. Simply put, trademark infringement is an important consideration, but so is the strain that the rest of country is facing, too. It is important to keep in perspective the costs and benefits of forcing everyone to drop what they're doing to stop the sale of knock−off unicorn products, in the midst of a pandemic. Without a showing of immediate, real−world harm, this Court cannot impose significant demands on third parties in the current environment. That said, this Court denies the motion without prejudice. Later, perhaps Plaintiff will make a better showing. But for now, Plaintiff has come up short (by a wide margin). As a reminder, the Court expects Plaintiff and its counsel to follow General Order 20−0012, including the admonition about emergency motions.

And, yes, this is our second story about potential unicorn infringement in just about a month, but these are the times we live in.

Filed Under: anne stokes, copyright, licensing, michael hierl, steven seeger, trademark, tro, unicorns
Companies: art ask agency

Can You License A Video You Don't Hold The Copyright Over?

from the copyright-v-ownership dept

A few times in the past we've discussed the differences between ownership of an original creative work and ownership of the copyright associated with that work. I'm reminded of this distinction -- which confuses the hell out of many people -- after lawyer Eric Turkewitz tweeted at me a question about who would own the copyright in this (oldish) viral video of a camera dropping from an airplane while filming, only to be discovered by an interested pig. It's gone viral a few times, and makes the rounds here and there. It's mildly entertaining.

But, what caught Turkewitz's eye is that the video on YouTube has the following description which includes "licensing information."

It says:

Camera falls from a sky diving airplane and lands on my property in my pig pen.
I found the camera 8 months later and viewed this video. For licensing/usage please contact: licensing@jukinmedia.com

If you're not familiar with it, Jukin Media is one of the biggest of a weird crop of businesses that rush in to try to monetize "viral" videos. Basically, they find various viral content and quickly contact whoever controls the video, and promise to get them money by "licensing" it for use in media. What this often means in practice -- especially with Jukin -- is that it goes around shaking people down for resharing clips of these viral videos.

Now, in some cases, there may be legitimate licensing opportunities, or potentially even real copyright infringement. However, I'm left scratching my head over the situation here. First off, the description (whether true or not), claims that the camera fell out of a plane and just landed in this person's pig pen, where it was found many months later. I don't know enough about regular property law to know if having the camera thrown from the sky onto the landowner's property -- and then left for 8 months -- means anything in terms of who owns the camera, but there's one thing that is pretty clear: the person who found the camera absolutely does not hold the copyright in the video.

A la the infamous monkey selfie case, there's a legitimate question as to whether or not there is a copyright to be had in this video -- but if there is, it's not held by the person who found the camera (and, no, we'll get it out of the way: it's not held by the pig either, as only humans and companies can hold a copyright). At best, one might argue that there's some copyright interest held by the person whose camera it used to be -- the person who dropped it out of the plane. Even that is arguable. The copyright in a photograph or video is supposed to be limited to the creative choices made by the creator. If the camera was deliberately dropped from the plane with the intention of making this video then, there's maybe a tiny sort of argument that they should get some level of copyright protection, though even then I'd argue it's fairly limited, as the creative input by that person is fairly minimal (especially once the camera is on the ground and the pig takes over).

All that is to say -- I'm not at all sure what rights Jukin has to "license" here. It can't offer a copyright license, and if it is, that's copyfraud -- claiming copyright in something it has no right to. But, of course, in this age where the RIAAs and MPAAs of the world continue to insist that everything must be covered by copyright, I imagine that Jukin has likely been able to convince lots of people to pay up because it's just easier, rather than recognizing that it has no rights to be licensing the video in the first place.

Filed Under: camera, copyright, falling from plane, licensing, pig, viral videos
Companies: jukin media, youtube

Disney's Licensing Dogs Charge Underserved School District A Third Of Fundraiser Money For Playing 'Lion King' DVD

from the robbing-them-twice dept

When it comes to posts about copyright issues, I cannot say for certain that Disney is the most frequent commonality in those posts, but it just... feels like it's probably true. After all, Disney has played such a heavy role in making copyright the over-extended, profit-driven, legal-cudgel bastardization of what copyright law was originally meant to be. Mickey Mouse himself is cited as the reason for copyright extensions in the past, and the company has been notorious in its zealous jealousy in protecting its copyrights.

But allowing your licensing partners to charge a school district for a third of the funds from a school fundraiser just because a parent brought a Lion King DVD to keep the kids happy during the event? That's a bit much, even for Disney.

When an elementary school in Berkeley, California, hosted a "parent's night out" fundraiser, they didn't think playing the 2019 remake of "The Lion King" would do anything besides keep the kids happy. That was until Emerson Elementary School received an email from a licensing company Thursday -- more than two months after the event -- saying they had to pay $250 for illegally screening the movie.

"One of the dads bought the movie at Best Buy," PTA president David Rose told CNN. "He owned it. We literally had no idea we were breaking any rules."

It's something we talk about all the time. Because of the twisted pretzel that copyright laws have become, it is quite possible for well-meaning folks to infringe upon copyright without having any idea that they're doing so. That cannot possibly be what the framers of copyright law had in mind when they created it. Movie Licensing USA, Disney's partner for managing licensing agreements, extracted $250 from the school's $800 fundraiser for showing the movie to kids, and informed the school that they would have to pay the same amount for any future showings.

The parents and district paid, but weren't happy about it. Because the universe is not without a sense of irony, part of the need for the fundraiser is, according to the district, the sweetheart real estate deal Disney got from California for the property it owns.

Berkeley City Council member Lori Droste, who is also a parent at Emerson Elementary, believes Disney is being unfair.

"There was an initiative passed in 1979 called Proposition 13 which casts the property tax on all land, and so Disney's property tax rates are at 1978 values which translates into millions upon millions of dollars a year that Disney is not paying," Droste told CNN.

"Because of that, our schools are now extremely underfunded," she added. "We went from the '70s being among the top education systems in the US to one of the lowest."

So, to summarize, Disney benefits from a government deal and avoids paying taxes, which fund school districts, and then sent the licensing police to the doors of a fundraiser for one of those school districts to take $250 out of the coffers. At this point, it's almost like they're trying to be one of their movie villains.

Filed Under: california, copyright, fair use, fundraiser, licensing, lion king, schools
Companies: disney

Woman Threatens Rep. Steve King With A Lawsuit For Using A 12-Year-Old Meme On His Facebook Page

from the nothing-more-sincere-than-selective-enforcement dept

No matter what your political leanings are, this is just a very dumb thing to do. (via BentFranklin in the Techdirt Chat window):

The mother of the boy in the iconic "Success Kid" meme has threatened to sue Representative Steve King for using her son's image in his campaign. In a series of tweets Monday, Laney Griner said she never gave his campaign permission to use the meme and called King a "vile man."

Griner claimed King used an infamous copyrighted image of her son Sam, a minor, to raise money in a fundraising campaign without her permission.

Here's the Facebook post by Rep. Steve King that got Griner so upset she's threatening to waste money on a losing lawsuit (via Eric Hananoki):

The post isn't smart or funny and suggests King's supporters can only meme effectively by using other people's money. It's unclear how much money is needed to trigger liberals with bad memes, but the number of emojis deployed suggests it might be a lot.

Griner demanded "immediate removal" of the pictures of her meme son. King's people complied. She also demanded King post an explanation stating that it was used without permission and for all donations resulting from the post be refunded to donors. It's unknown if this has happened.

She's also threatening a lawsuit, which seems like a really bad idea. Griner may not want her son associated with Rep. King (and really, who can blame her) but this also seems to be about something else: money.

"The majority of U.S. consumers reject your political and other views, often vehemently, as they have a right to do," Griner's attorney said in the cease-and-desist letter. "Those people may be repelled by any association with your politics and campaign and, therefore, unwilling to purchase products from legitimate licensees of the 'Success Kid' meme."

I'm not sure what the overlap between Steve King fans and people-who-buy-licensed-meme-goods is, but I'm guessing probably not enough to show any substantial loss in the income column. This is about politics, rather than unlicensed use, as Griner's tweets make perfectly clear.

It's highly unlikely anyone viewed Steve King's post and thought the 11-month-infant (who is now a 13-year-old boy) supports King and his extremely controversial views. Enforcing IP rights selectively is always a bad look -- one that makes rightsholders look opportunistic, rather than truly wronged by whatever incident has prompted the enforcement effort. According to Know Your Meme, there were 66,000 instances of the meme using her copyrighted photo at Quickmeme alone. And that was in 2011. No one's making any noise about these but when Steve King uses it, suddenly it's a whole thing.

This isn't about IP protection. It's about politically-expedient enforcement. Griney could have asked Steve King to take it down and told everyone how displeased she was with this use. But she didn't do that. She hired a lawyer, issued a cease-and-desist, and threatened a lawsuit. Sure, she's well within her rights. But she's not doing anything to erase the perception that copyright is a handy tool for censorship and the silencing of people you just simply don't care for.

Filed Under: copyright, licensing, memes, steve king, success kid, threats

Like Clockwork, ICE Stops Sports Fans From Advertising Their Favorite Teams For Less Than Full Price

from the this-is-so-dumb dept

Two things that happen, like clockwork, every Super Bowl? Bogus completely fabricated claims that sex trafficking increases whereever the Super Bowl is held, and ICE making bullshit seizures of "counterfeit" sporting goods. This year, both Associated Press and the local Miami Herald ran bogus stories claiming that sex trafficking ramps up around the Super Bowl -- a claim that every single year is debunked and unproven. Reason always does a good job debunking those claims. so I'll just point you there for now.

On the "counterfeits" front, we've got a silly press release from ICE and plenty of news sources, like Fox News, gleefully cheering on the fact that fans won't be able to provide free advertising to their favorite sports teams without paying the monopoly price set by the NFL. We've covered just how messed up these ICE raids are in the past, but just as a refresher: it's completely fucked up that it's somehow illegal for people to make or sell unauthorized sports wear.

It used to not be this way. It used to be that if you made your own fan ware, sports teams actually liked the fact that you were advertising their brand to the world for free. And then some trademark lawyers came along and said "hey, but we could sell people the right to advertise our stuff for us" and began going to court to stop people from promoting their teams without first paying. An astounding number of people buy into this ridiculous myth -- but think about it: why should people have to pay monopoly prices to help advertise your sports team? It makes no sense at all.

What makes even less sense is the idea that ICE should be spending any time at all seizing goods that would allow fans to provide free advertising at slightly cheaper prices. How is this in the interest of Immigration & Customs Enforcement? I mean, if it means they're not rounding up and kicking out people who have lived here their whole lives, I guess I'd rather them wasting their time on this, but somehow I get the feeling it's not mutually exclusive. Anyway, the real bullshit here is that ICE -- which does this before every single major sporting event -- actually wants to pretend that it's somehow doing a good thing for the world, rather than doing this because they know every single news org wants some dumb story with a "big sports event" hook, and so they know they'll get press.

U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) announced Thursday the seizure of more than 176,000 counterfeit sports-related items, worth an estimated $123 million manufacturer's suggested retail price (MSRP), through a collaborative enforcement operation targeting international shipments of counterfeit merchandise into the United States.

Also, note the $123 million. To their credit, at least the press release admits that that's the MSRP price. That's not the real price by any stretch of the imagination. ICE did not seize $123 million worth of goods. But, of course, the news reports leave out that detail, and just run with the $123 million number.

Even worse, ICE pretends that this is "protecting" fans, rather than actually fucking over the fans:

“Operation Team Player remains one of the most important national initiatives for protecting sports fans from the sale of counterfeit products and counterfeit tickets. The joint efforts of the NFL, the IPR Center, HSI, CBP, and Miami area law enforcement have helped ensure that Super Bowl LIV remains an authentic and outstanding experience for our fans,” said NFL Vice President of Legal Affairs, Dolores DiBella. “The NFL is committed to supporting these anti-counterfeiting and consumer protection measures, and extends its gratitude for the year-round support of law enforcement partners who drove the success of Operation Team Player.”

It's not consumer protection. You're just forcing your fans to pay more to give you advertising. Meanwhile, reports have the NFL making somewhere in the range of $15 billion last year (some say the number is even higher). Why are they having to use your tax dollars to force the prices of their merchandise to be jacked up even more?

Filed Under: advertising, cbp, counterfeit, ice, licensing, sports, superbowl, trademark
Companies: nfl