Back in 2016 we wrote about how Landis+Gyr, a large multinational company owned by Toshiba, completely freaked out when it discovered that documents about its smart energy meters, which the city of Seattle had contracted to use, were subject to a FOIA request. As we noted, Landis+Gyr went legal and did so in perhaps the nuttiest way possible. First it demanded the documents be taken down from Muckrock -- the platform that makes it easy for journalists and others to file FOIA requests. Then it demanded that Muckrock reveal the details of anyone who might have seen the documents in question. It then sued Muckrock and somehow got a court to issue a temporary restraining order (TRO) against Muckrock for posting these public records.
Eventually, with help from EFF, Landis+Gyr agreed to a settlement that stated that these documents were (a) public records and (b) the company would no longer attempt to take down the copies that Muckrock had obtained. From the settlement agreement posted on the public docket in the case:
Plaintiffs agree that they will take no further action against Defendants Mocek, Muckrock.com, and Morisy with respect to two public records previously released by the City to Muckrock.com on behalf of Mocek and automatically published on MuckRock.com.
This all ended in the summer of 2016. And, indeed, you can still find the documents hosted on Muckrock's website today. Here is the Managed Services Report 2015 and the Security Overview. Even though Landis+Gyr went to court over this and then agreed via its settlement that (1) these were public records that (2) could be left online, the company apparently doesn't want you reading them.
Last week, we received a notice from DocumentCloud -- which we use to host various documents as part of our reporting efforts -- that it had received a DMCA notice from lawyer Heather McNay of Landis+Gyr, demanding that it take down the copies of those very same public records that we had uploaded as part of our reporting on this story. It seems fairly clear to us that our posting of these public records as part of our reporting and commentary on a dispute created by Landis+Gyr itself was quintessential fair use for news reporting. And, of course, there a number of court rulings in various locations noting that copyright law cannot be used to prohibit the copying of public records (notably, that case involves a very similar situation involving a public records request in Washington State).
Either way, given that Landis+Gyr has promised in its settlement with Muckrock not to take any actions at all against Muckrock for hosting these public records, we'll note the incredible futility of the company then sending DMCA notices targeting those same public records, and scratch our collective heads over what the company is thinking when all it's doing is reminding everyone that (1) these documents exist online and (2) apparently the company would prefer you not look at these public records about its own systems.
Last week we announced our new site EveryoneCreates.org, featuring stories from many different creators of music, books, movies and more about how important the internet and fair use have been to their creations. As we noted, the reason for the site is that the legacy copyright gatekeepers at the MPAA and the RIAA have been using the Trump-requested NAFTA renegotiations to try to undermine both fair use and internet safe harbors by positing a totally false narrative that the internet has somehow "harmed" content creators.
Yet, as we know, and as the stories from various artists show, nothing is further from the truth. For most artists and content creators, the internet has been a huge boon. It has helped them create new art, share it and distribute it to other people, build a fan base and connect with them, and make money selling either their work or related products and services. As we've discussed before, in the past, for most artists, if you did not find a giant gatekeeper to take you on, you were completely out of the market. There was very little "long tail" to be found in most creative industries, because you either were "chosen" by a gatekeeper or you went home and did something else. But the internet has changed that. It has allowed people to go directly to their audiences, or to partner with platforms that help anyone create, distribute, promote and monetize. Indeed, the internet has undoubtedly helped everyone reading this to create art -- whether for profit or just for fun. And if that's the case with you, please share your story.
But it is worth taking a step back and asking an even larger question: how the hell did we get here? How did we get to the point that the MPAA and the RIAA are using NAFTA negotiations to try to undermine the internet. Rest assured: there's a long, long history at play here, and it's important to learn about it. The idea that you can or should regulate the internet or intellectual property in trade agreements should seem strange to most people -- especially as most trade agreements these days are about increasing free trade by removing barriers to trade, and copyright by its very nature is mercantile-style trade protectionism that places artificial limits and costs on trade that might otherwise be cheaper.
An excellent history on this topic comes from the aptly named 2002 book Information Feudalism: Who Owns the Knowledge Economy by Peter Drahos and John Braithweaite. It tells the story of how a concerted effort by legacy copyright maximalist organizations laid the groundwork for making sure that copyrights and patents were always included in trade agreements, by getting them in as a key part of the World Trade Organization and by the creation of TRIPS -- Trade-Related Aspects of Intellectual Property Rights. The book details how the legacy industries turned "intellectual property" from a question of benefiting the public to a solely commercial arena of corporate ownership and trade.
Once that was in place, these same industries wasted little time in exploiting the reframing of issues around copyright and patents. Famously, the DMCA itself was created in this manner. The record labels and movie studios had a friend in the Clinton White House in Bruce Lehman, who wrote a white paper in 1995 requesting draconian changes to copyright law targeting the internet. However, he found little support for it in Congress. Five years ago, Lehman himself admitted that when Congress refused to act he did "an end-run around Congress" by going to Geneva and pushing for a trade agreement via the World Intellectual Property Organization (WIPO) which required DMCA-like copyright rules.
With that treaty in hand, Lehman and his Hollywood friends came back to Congress, insisting that our "international obligations" now required Congress to create and pass the DMCA, or we'd suddenly face all sorts of trade and diplomatic problems for failing to live up to those "international obligations" that they themselves had put into the trade agreement. Indeed, ever since then, nearly every international trade agreement has included some crazy provisions related to copyright and patents and other IP rights -- all designed to effectively launder these laws through the highly opaque international trade negotiation process, and then insist that legislatures in various countries simply must ratchet up their laws to meet those obligations.
Given all that, there's at least some irony in the fact that these same groups that forced the DMCA on Congress through an international trade agreement back in the mid-1990s are now trying to use a different trade agreement 20 years later to force changes to that very same law (and others). Once again, the process is opaque. And once again, the industry is well connected and represented on a variety of the "Industry Trade Advisory Committees" (ITACs), giving them much greater access to the details of the negotiations while the public is kept in the dark.
But the history here is clear. Moving copyright into trade agreements was a purposeful move, pushed for by legacy industries so they could promote their favored protectionist laws around the globe, in part by moving them away from being designed for the public's benefit and towards a world in which information and knowledge was considered to be privatized, owned, and locked up by default. It ignored the fact that, often, the public can benefit the most when information is open and widely shared. And, decades later, we're still dealing with the fallout from these bad decisions.
And that's why it's so important for policy makers to understand that it's complete hogwash to argue that the RIAA and MPAA are "representing artists" in trying to undermine the internet this way. Most artists recognize that the internet and various platforms are a key part of their ability to create, distribute, share, and support their artwork these days -- and they are not being represented at the NAFTA negotiating table.
Online platforms have enabled an explosion of creativity — but the laws that make this possible are under attack in NAFTA negotiations. We recently launched EveryoneCreates.org to share the stories of artists and creators who have been empowered by the internet. This guest post from Public Knowledge's Gus Rossi explore's what's at stake.
In the past few weeks, we at Public Knowledge have been talking with decision-makers on Capitol Hill about NAFTA. We wanted to educate ourselves on the negotiation process for this vital trade agreement, and fairly counsel lawmakers interested in its effects on consumer protection. And we discovered a thing or two in this process.
It won’t surprise anyone that we don’t always agree with lobbyists for the big entertainment companies when it comes to creating a balanced copyright system for internet users. But some of the ideas these groups are advancing are widely misleading, brutally dishonest, and even dangerous to democracy. We wanted to share the two wildest ideas the entertainment industries are proposing in the new-NAFTA, so you can help us set the record straight before it’s too late:
1) Safe harbors enable child pornography and human trafficking.
Outside specialized circles, common wisdom is that “safe harbors” are free get-out-of-jail cards that internet intermediaries like Facebook can use to avoid all responsibility for anything that internet users say or do in their services. Leveraging this fallacy, entertainment industry lobbyists are arguing that safe harbors facilitate child pornography and human trafficking. Therefore, the argument follows, NAFTA should not promote safe harbors.
This is highly misleading. Safe harbors are simply legal provisions that exempt internet intermediaries such as YouTube or Twitter, and broadband providers such as Comcast or AT&T, from liability for the infringing actions of their users under certain specific circumstances. Without safe harbors, internet intermediaries would be obligated to censor and control everything their users do on their platforms, as they would be directly liable for it. Everything from social media, to internet search engines, to comments section in newspapers, would be highly restricted without some limitations on intermediary liability.
The Digital Millennium Copyright Act (DMCA) and Section 230 of the Communications Decency Act (CDA 230) establish the two most important limitations for online intermediaries in US law. According to the DMCA, internet access providers (such as Comcast, AT&T, and Verizon) are not liable for the alleged copyright infringement of users on their networks, so long as they maintain a policy of terminating repeat infringers. Content hosts (such as blogs, image-hosting sites, or social media platforms) on the other hand, have to remove material if the copyright holder sends a takedown notice of infringement.
CDA 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them directly responsible for what others say and do.
The relevant safe harbor for the interests of the entertainment industries is the DMCA, not CDA 230. CDA 230 specifically excludes copyright from its umbrella. And DMCA is exclusively about copyright. It is incredible dishonest and shallow for these lobbyists to use the specter of child abuse to drum up support for their position on copyright in NAFTA. No one should try to obfuscate a complicated policy discussion by accusing their opponents of promoting child sex trafficking.
2) Exceptions and limitations to copyright are unnecessary in trade agreements.
According to none other than the World Intellectual Property Organization, exceptions and limitations to copyright -- such as fair use -- exist “[i]n order to maintain an appropriate balance between the interests of rights holders and users of protected works, [allowing] cases in which protected works may be used without the authorization of the rights holder and with or without payment of compensation.” Without exceptions and limitations, everything from using a news clip for political parody, to sharing a link to a news article in social media, to discussing or commenting on just about any work of art or scholarship -- all could constitute copyright infringement.
Yet, the entertainment industries are arguing that exceptions and limitations are outdated and unnecessary in trade agreements. They say that copyright holders should be protected from piracy and unlawful use of their works, claiming that any exceptions and limitations are a barrier to the protection of American artists.
This is also wildly inaccurate. American artists and creators remix, reuse, and draw inspiration from copyrighted works every single day. If our trade partners don’t adopt exceptions and limitations to copyright, then these creators could be subject to liability when exporting their work to foreign countries. Exceptions and limitations to copyright are necessary both in the US and elsewhere. Our copyright system simply wouldn’t work without them, especially in the digital age.
Conclusion: We need to set the record straight.
For its political and economic importance, NAFTA could be be the standard for future American-sponsored free trade agreements. But NAFTA could have dramatic and tangible domestic consequences if it undermines safe harbors and exceptions and limitations to copyright. In the next policy debate around copyright infringement or intermediaries liabilities, the entertainment industries will point to NAFTA as an example of the US Government’s stated policy and where the world is moving.
Furthermore, these lobbyists will have already convinced many on Capitol Hill that safe harbors enable child abuse and that fair use is unnecessary. The entertainment industries knows how to walk through the corridors of power day after day -- they’ve been doing so for well over a century.
It’s not too late to fight back, set the record straight, and defend a balanced approach to copyright and consumer protections in NAFTA. You can start by contacting your representative. But the clock is ticking. Join Public Knowledge in the fight to keep the internet open for everyone.
One theme that we've covered on Techdirt since its earliest days is the power of the internet as an open platform for just about anyone to create and communicate. Simultaneously, one of our greatest fears has been how certain forces -- often those disrupted by the internet -- have pushed over and over again to restrict and contain the internet, and turn it into something more like a broadcast platform controlled by gatekeepers, where only the chosen few can use it to create and share. This is one of the reasons we've been so adamant over the years that in so many policy fights, "Silicon Valley v. Content" is a false narrative. It's almost never true -- because the two go hand in hand. The internet has made it so that everyone can be a creator. Internet platforms have made it so that anyone can create almost any kind of content they want, they can promote that content, they can distribute it, they can build a fan base, and they can even make money. That's in huge contrast to the old legacy way of needing a giant gatekeeper -- a record label, a movie studio, or a book publisher -- to let you into the exclusive club.
And yet, those legacy players continue to push to make the internet into more of a broadcast medium -- to restrict that competition, to limit the supply of creators and to push things back through their gates under their control. For example, just recently, the legacy recording and movie industries have been putting pressure on the Trump administration to undermine the internet and fair use in NAFTA negotiations. And, much of their positioning is that the internet is somehow "harming" artists, and needs to be put into check.
This is a false narrative. The internet has enabled so many more creators and artists than it has hurt. And to help make that point, today we're launching a new site, EveryoneCreates.org which features stories and quotes from a variety of different creators -- including bestselling authors, famous musicians, filmmakers, photographers and poets -- all discussing how important an open internet has been to building their careers and creating their art. On that same page, you can submit your own stories about how the internet has helped you create, and why it's important that we don't restrict it. Please add your own stories, and share the site with others too!
The myth that this is "internet companies v. creators" needs to be put to rest. Thanks to the internet, everyone creates. And let's keep it that way.
Several years ago, a music industry transplant into Parliament, Mike Weatherley, made a glorious push to get the government to invade primary schools in the country to teach them that piracy is the worst thing in the world and intellectual property laws are super cool. Children as young as seven years old would be subjected to "educational information" provided by the government on the "proper" use of the internet. This was not the first attempt at pushing copyright propaganda on kids. In fact, we've reported on many of these, going all the way back to 2003 -- and many of the programs have been mockable, including the infamous Captain Copyright.
You would think that maybe those producing this propaganda would realize that it basically always is a flop as kids are smart enough to see through it -- and that their attempts to be cool and hip tend to come off as insane. But... the UK has pushed forward with this plan, and you have no fucking idea how insane it actually is.
Part of the education features a fictitious cartoon band called Nancy and the Meerkats. With help from their manager, they learn key copyright insights and this week several new videos were published, BBC points out.
The videos try to explain concepts including copyright, trademarks, and how people can protect the things they’ve created. Interestingly, the videos themselves use names of existing musicians, with puns such as Ed Shealing, Justin Beaver, and the evil Kitty Perry. Even Nancy and the Meerkats appears to be a play on the classic 1970s cartoon series Josie and the Pussycats, featuring a pop band of the same name.
As TorrentFreak points out, the inclusion of a parody of Ed Sheeran is more than a bit eyebrow-raising, considering just how open to and grateful for piracy and filesharing Sheeran has been. For the government to hijack his likeness for a parody that takes the opposite view is, at the very least, uncouth. If it seems odd that a series of videos extolling the virtues of intellectual property rights makes such liberal use of parody to play on well-known entertainment stars, well, just take a look at the government's video trying to explain parody and fair use and picture a bunch of first-through-fifth graders taking this all in.
Beyond how vomit-inducing the video is generally, one wonders just how closely the message in the video overlaps with actual UK law. While UK law is more stringent on free speech when it comes to so-called "insulting" speech, it seems far too simple an explanation to state that any parody that is found insulting would be illegal. Let's say, for instance, that Ed Sheeran considers this parody depiction of him, complete with an anti-piracy message that comes off as the opposite of his own, is insulting. Is the UK's IPO really saying that its own video suddenly becomes illegal?
Now, while the videos generally tread upon long-debunked ground...
After the Meerkats found out that people were downloading their tracks from pirate sites and became outraged, their manager Big Joe explained that file-sharing is just the same as stealing a CD from a physical store.
“In a way, all those people who downloaded free copies are doing the same thing as walking out of the shop with a CD and forgetting to go the till,” he says.
“What these sites are doing is sometimes called piracy. It not only affects music but also videos, books, and movies.If someone owns the copyright to something, well, it is stealing. Simple as that,” Big Joe adds.
...there is also some almost hilarious over-statements on the importance of this messaging and intellectual property as a whole. For instance, were you aware that the reason it's so important to teach 7 year olds about copyright and trademark is because navigating intellectual property is a full-blown "life skill?"
According to Catherine Davies of IPO’s education outreach department, knowledge about key intellectual property issues is a “life skill” nowadays.
“In today’s digital environment, even very young people are IP consumers, accessing online digital content independently and regularly,” she tells the BBC. “A basic understanding of IP and a respect for others’ IP rights is therefore a key life skill.”
It's enough to make you wonder if this is all just another example of a parody of those that push intellectual property rights education on school-aged children -- so ham-fisted is the execution and so wildly overstated is its importance.
Ultimately, we can likely rest easy, because children even as young as seven are far too smart and resourceful, not to mention critical in terms of entertainment, as to consider these videos to be anything other than the obvious propaganda that they are. One nearly hopes that some of these children will create their own parodies and put them up on that dangerous internet thing they've been warned about, with hopefully as much mean-spirit as their little psyches can conjure.
From January 9-12, thousands of tech experts, innovators, media professionals, politicians and business leaders from around the world pour into Las Vegas for CES 2018. It’s an incredibly exciting time: Attendees get to see the most innovative technologies and trends that will change the face of industries across the globe, from health care and entertainment to automobiles and home appliances.
I’m always proud of CES – proud of the innovators who have traveled a long road to get to the floor; proud of all my behind-the-scenes colleagues who dedicate months to putting the show together; and proud the show inspires thoughtful conversations and partnerships that lead to life changing products, new businesses and jobs.
But CES also makes me proud to be an American. Our nation’s tech industry is the envy of the world. When you combine induced, indirect and direct impact, the U.S. tech sector accounts for over ten percent of our GDP and 15.3 million jobs. It has produced brands and companies that are known and needed all over the world. And nowhere is that more obvious than at CES.
The reason our country can host a show like CES is because we have a legal and policy framework designed to allow our tech industry to flourish. From our education system that encourages originality and ingenuity, to our openness to immigrants and their innovative ideas, to a pro-business regulatory framework that lowers barriers to entry for entrepreneurs, to the First Amendment and its protection of ideas, no matter how controversial, our system rewards those who have the creativity to solve a problem and the courage to make their idea a reality.
If policymakers want to preserve our global leadership and support this vital industry, they must act at this crucial moment. With the start of the new year comes the start of a new legislative session, and the opportunity to prioritize policies that can strengthen the framework that has allowed the tech industry to flourish. As Washington gets down to business in 2018, here are some ways they can do this:
Promote fair and free trade. We can’t mistake American ingenuity for isolationism. For instance, threats to impose tariffs on Chinese goods or hinder trade with China – a crucial trade partner of the U.S. tech industry – would harm, not help, tech innovation. Our supply chain is global and must be kept open.
Protect innovative tech companies from crushing liability costs. One of the cornerstones of internet freedom are the “safe harbor” and “fair use” principles in domestic law. These laws allow users and entrepreneurs to innovate, free from ruinous nuisance lawsuits and should be added to the North American Free Trade Agreement (NAFTA). But Congress is questioning these principles and considering changes that would seriously compromise the free, open flow of information these companies now help to sustain. This in turn would hurt small businesses across the country, many of whom rely on the internet to market their products internationally. By upholding these safe harbor laws and other copyright protections, federal leaders can maintain a strong economy and secure a stable internet for future innovators. Not only should these principles be enshrined and protected in domestic law, they should become a template for our trade agreements. We have a chance to do so now with a digital chapter in NAFTA that embodies these principles.
Pursue immigration reform that opens our borders to the world’s best and brightest. Right now the future of immigration policy is unclear, but it is obvious that we need to attract the best and brightest if we want to maintain our global lead in innovation. More than 50 percent of our country’s billion-dollar startups were created by immigrants according to the National Foundation for American Policy. While we are closing our borders, other countries are copying our strategy of attracting the best and brightest.
Invest in infrastructure. The rise of the Internet of Things, smart cities and self-driving vehicles means that the world as we know it will change significantly over the course of the next several decades. By getting a head start on infrastructure investments, including 5G broadband and highway construction, federal leaders can help smooth this transition and pave the way for new levels of connectivity. Simply allowing utility companies to lay broadband in every federally funded roads project is an easy bipartisan start.
Focus in on patent reform. Many of the startups at CES have horror stories about patent trolls – companies that threaten patent lawsuits in hopes of collecting money out of court. Patent trolls are undermining the strength of our patent system and bleeding $80 billion annually from our economy. Too many businesses are dragged down by their lawsuits and threats. Congress must act to protect innovators and ensure we maintain the best intellectual property protection system in the world.
Pursue a business-friendly regulatory framework. President Trump has taken the lead on this, spearheading major reform soon after his inauguration. Congress must continue his efforts, creating policies that encourage innovation and lower barriers to entrepreneurship.
Protecting freedom of speech across the board. We’ve seen many attacks on freedom of speech this year from all across the political spectrum. Financial freedom is important for innovators, but low taxes and limited regulatory interference mean nothing if innovators don’t have the intellectual freedom to try out new ideas without fear of legal repercussions. It’s high time we act to protect this first and most vital of our freedoms.
There’s no denying it’s been a challenging year politically, no matter your perspective. But with the new year comes a renewal of opportunity. Washington must put aside petty partisan arguments and work together to protect the framework that has led to our flourishing. And by doing this, we can protect the creativity and ingenuity of American innovation for generations to come.
A little over a year ago, we wrote about an unfortunate case in which Dr. Seuss Enterprises decided to sue for copyright and trademark infringement over an attempt to create a (pretty funny) parody that mashed up Dr. Seuss with Star Trek, called "Oh, The Places You'll Boldly Go." As we noted at the time, this seemed to be a clear parody (which is protected by fair use). It was clearly transformative, and was commenting on the differences between Trek and Seuss. We also noted some extraordinary (and extraordinarily silly) claims in the lawsuit. The defendants in the case, Comicmix, won a round earlier this year, when the judge tossed out the trademark claims. However, he let the copyright claims stand for the time being. After, Dr. Seuss Enterprises filed an amended complaint on all the claims, leading to a new motion to dismiss.
Unfortunately, in a new ruling, the court has again denied the fair use claims on copyright, and also denied a new motion to dismiss on trademark grounds, meaning the case will move forward. And it's in large part due to the Muppets and a font. I only wish I were joking. You can read the ruling here. Since the court had previously done a copyright fair use four factors analysis, it mostly just points back to its previous ruling on the matter, but only adjusts its analysis of factor four -- the "effect of the use upon the potential market." The other factors split evenly (factor one in favor of Comicmix, factor two in favor of Seuss, factor three favoring neither).
So this ruling turns on what many courts (perhaps incorrectly...) believe is the most important factor: does this use harm the market for the copyright-covered work. Here, the discussion turns on whether or not this would undermine the Seuss Estate from licensing out its copyrights to someone to do a Star Trek mashup. Comicmix's argument is basically "come on, no one's doing that." Seuss's argument is "hey, look, we've done other mashups before"
Plaintiff states it has published “books that are derivative of [Go!]” such as Oh! The Places I’ll Go; Oh, Baby! Go, Baby!, and more.... Plaintiff states it also publishes a series of “books written and illustrated by other authors and artists that are based upon and incorporate the Dr. Seuss Intellectual Property” such as Oh, The Things You Can Do That Are Good for You!, There’s No Place Like Space!, Oh, The Pets You Can Get!, and more.... Plaintiff states “[n]otably, ‘Dr. Seuss’ does not appear on any of the [book] covers, and all of the covers include names of other authors, despite the fact that these works are authorized by DSE and are recognized by the public as Dr. Seuss works.”...
Defendants argue Boldly cannot cause any relevant market harm because Plaintiff’s licensed collaborations listed in the FAC are not works of Boldly’s type.... Defendants argue Plaintiff has not licensed and would not license “any derivate work that creates a hybrid of Dr. Seuss’s books with existing characters and imagery from a third party’s entertainment franchise. The first amended complaint does not give rise to a plausible claim that Boldly would cause any harm in any transformative market.” ... Defendants distinguish their mash-up from Plaintiff’s licensed derivatives and argue none of the books published as part of Plaintiff’s co-branding licensing program “are crossover works that integrate pre-existing characters or imagery from another entertainment franchise, such as Star Trek, with those of Dr. Seuss.”
The Seuss folks responded to this by pointing out that... they'd done a Muppets mashup with Seuss. Muppets!
Plaintiff argues it has in fact collaborated with others and created crossover works, such as through the creation of The Wubbulous World of Dr. Seuss, “a live action/puppet show produced by the Jim Henson Company featuring Dr. Seuss’s well-known and beloved characters alongside new, Muppet-like characters created by The Jim Henson Company.”
That apparently is enough to convince the court that Seuss might possibly, some day, find a market to produce mashup Seuss / Star Trek works:
Although these books may not be mash-ups like Boldly, there is a potential market for a literary mash-up involving Plaintiff’s books; such a market would not be unlikely based on Plaintiff’s past licensing programs. Defendant’s production of Boldly may result in an adverse impact on Plaintiff’s derivative market and the Court therefore finds there is potential harm to the market for Plaintiff’s derivative works. Therefore, this factor weighs in favor of Plaintiff.
With the amended complaint, the court also revisits the trademark claim... and allows it to move forward as well, reversing its earlier ruling. It finds that Seuss's trademark is valid here, and then says that Comicmix's use does not meet the standards for nominative fair use (in trademark law, that basically means did you just use the trademark to identify the thing that you're talking about). The real failing by Comicmix? Going a bit overboard in using the identical font in their title. Really:
Defendants not only use the words “Oh! The Places You’ll Go!” in the title of Boldly but also use the exact font used by Plaintiff. The look of the lettering is unquestionably identical on both books, down to the shape of the exclamation point. This situation is similar to that in Toho. The Court finds it was unnecessary for Defendants to use the distinctive font as used on Go! to communicate their message (i.e., that Boldly is a mash-up of the Go! and Star Trek universes). The Court concludes Defendants have not satisfied this nominative fair use factor.
I find this... puzzling. Again, the use of the font is the same issue as the use of the other Seussian design: to evoke the world of Seuss in which to land their parody.
So, Comicmix is 0-for-2 at this point -- and have the Muppets and a font to blame. Ouch.
This by no means that the case is over. It can still go through discovery and summary judgment and, then possibly a trial. And it's still possible that Comicmix could win -- but it's also going to be expensive to keep going.
In the meantime, I'm still left wondering why this is a good move by Dr. Seuss Enterprises. It's a beloved brand acting like a bully, pissing off tons of fans. Why not just let the Star Trek / Dr. Seuss fans have their fun for a bit and use the goodwill to sell more of its own books. I mean, I imagine the temptation among many people who would buy the mashup book would be to also get a copy of the Seussian original if they don't already own it. But, alas, in this day and age, so many organizations feel they have to go legal against everyone.
This is one of those frustrating stories where basically everyone's wrong about everything. Here's how it started: Just prior to Ajit Pai's FCC officially dumping net neutrality rules last week, the Daily Caller released a video with Pai. Pai seems to have a way of not realizing just how incredibly unfunny, tone-deaf and cringeworthy his "jokes" are -- but it doesn't stop him from trying again. If you somehow missed it, you can see the video here:
The video is bad and dumb and misleading and, yes, very, very cringeworthy. The pure awfulness of the video is what got people worked up initially, with Pai's supporters gleefully laughing at Pai's opponents for getting upset about it. If you can't see it for some reason, it involves Pai claiming that nothing is going to change on the internet following his bad decision to kill the FCC's net neutrality rules, and then attempts to show some examples: posting images of food and dogs to the internet, doing some online shopping, being a dorky Star Wars fan and, finally, "ruining a meme."
That meme? The Harlem Shake. If you were online in 2013, you almost certainly remember it. Because it was everywhere. For a couple months or so, everyone on the internet seemed to feel it was their obligation to create a video showing people crazy dancing to a snippet of the song "Harlem Shake" by "Baauer" the stage name of a music producer named Harry Rodrigues. The song, the Harlem Shake uses a sample from another song, Miller Time, by Philadelphia's Plastic Little. Also, the "con los terroristas" line was sampled from a singer named Hector Delgado.
Back in 2013, we actually had a few stories about copyright issues around the whole Harlem Shake phenomenon. First, we noted that Baauer and his label, Mad Decent, seemed to have engaged in selective enforcement of whatever copyright they might have held on the song. They left most videos live on, but did take down some from people they disagreed with. We also noted that the whole meme went viral not for anything that Baauer actually did, but because of the first few videomakers whose crazy videos turned it into a thing. Finally, we noted that Delgado and Plastic Little were demanding their cut as well.
And, of course, we should note that the whole Harlem Shake meme came and went pretty fast. I mean days after it went big, it was already declared dead. And, yes, this was part of the lame Pai joke.
Onto outrage two: soon after everyone was complaining about how awful (and inappropriate) this video was, some people noticed that one of the women dancing in the Ajit Pai Harlem Shake video... was a conspiracy theorist Pizzagater. Which, you know, is not really a good look for the freaking Chairman of the FCC (especially while making fun of people who are concerned about the future of the internet).
Outrage three: we're back to copyright. Baauer tweeted angrily that he supported net neutrality and was "taking action" saying "whatever I can do to stop this loser."
"The use of my song in this video obviously comes as a surprise to me as it was just brought to my attention. I want to be clear that it was used completely without my consent or council. My team and I are currently exploring every single avenue available to get it taken down. I support Net Neutrality like the vast majority of this country and am appalled to be associated with its repeal in anyway."
So, let's be clear why this is also bad. The use here is obviously fair use. In the past we argued that all of the Harlem Shake videos were likely fair use, but the case with the Pai video is even stronger. It's clearly a parody in making fun of the song's use in the old dead meme, and parody is non-infringing as fair use. If there was a lawsuit, Pai/FCC/Daily Caller would win. Furthermore, it appears that Baauer is basically trying to assert a sort of "moral" right into copyright that doesn't exist under US law. Moral rights, which are available in other countries (and only on limited works in the US -- but not music) allow an artist to block an otherwise legal usage by saying they don't want to be associated with it. But not in the US.
Indeed, Baauer seems to be admitting his intent to misuse copyright to silence speech he doesn't like. That's bad. Even if I agree that Pai's video is awful and his effort to destroy net neutrality is terrible, that still doesn't make it right to abuse copyright law to silence speech.
But... that didn't stop Baauer's label, Mad Decent, from going ahead and issuing a takedown and promising to sue if the video was not removed:
Official statement re the use of "Harlem Shake" in Daily Caller's video of FCC Chairman Ajit Pai: neither Mad Decent nor Baauer approved this use nor do we approve of the message contained therein. We have issued a takedown will pursue further legal action if it is not removed.
And, indeed, as with basically any YouTube takedown, the company took the video down:
There were many people who are quite rightly upset at Pai's killing of net neutrality who then quite wrongly cheered on this takedown. It may be fun to see someone you dislike have their speech silenced through abusive copyright takedowns, but that doesn't make it any less wrong. No matter how much you disagree with Pai (and we disagree with him around here quite a lot), pulling down his video over a copyright claim is clearly bad.
And that takes us to outrage four: The Daily Caller then totally flips its lid with laughable conspiracy theories about how YouTube only took the video down because Google supports net neutrality and wanted to silence Ajit Pai.
YouTube’s targeting of Daily Caller content and its willingness to remove our video for political purposes while millions of other uses are allowed to remain on the platform should stand as a terrifying prospect for every American.
Except that's ridiculous. YouTube takes down tons of videos when it receives a DMCA notice. Indeed, the web is filled with examples of YouTube taking down videos that should be protected by fair use. That's why users can counterclaim and say that it's fair use. And YouTube is pretty good about responding to such fair use counterclaims and getting the video back up. Which is what happened here. But, the Daily Caller insists the video only was put back up because it's big and has lots of influence (feel free to debate both of those points if you'd like).
There's still a possible future outrage: if Mad Decent and/or Baauer actually sue over it, which hopefully any reasonable lawyer will talk them out of doing.
So, again, everyone and everything in this story is awful. Pai's video is dumb, misleading, cringeworthy and awful. Pai's actions around net neutrality are awful. Pai cavorting with a conspiracy theorist is awful. Baauer and Mad Decent freaking out over obvious fair use of their song is awful. Mad Decent issuing a bullshit takedown is awful. YouTube complying with the takedown is awful. And the Daily Caller stupidly assuming the compliance with the takedown is for political reasons, rather than standard operating procedure for DMCA takedowns is awful.
In short: it's all awful. Horribly awful.
The FCC shouldn't be killing net neutrality. The chairman of the FCC shouldn't be making awful, misleading videos with nutty conspiracy theorists mocking the vast majority of the American public who disagree with his stupid plan. And he shouldn't include four year old memes, even if it's to parody old memes, because, really, let the fucking memes die. The people who got rich off the memes shouldn't then abuse copyright law to try to censor speech they don't like. And the people who made the stupid, awful video in the first place, shouldn't leap to laughable conclusions about why their video got taken down.
And I feel like I should end this post with "... and get off my lawn," though I'd much prefer that we live in a world where we weren't having competing narratives over censorship, where the internet remained open and free and non-discriminatory, and bogus copyright takedowns didn't take down expressive content, no matter how dumb it might be. Tragically, we're not there yet.
Looking through the history of our posts on the topics of fair use and fair dealing, you find plenty of examples for why these exceptions to copyright law are so important. These exceptions are, at their heart, designed to be boons to the public in the form of an increased output in creative expression, educational material, and public commentary on matters of public interest by untethering the more restrictive aspects of copyright law from those efforts. Without fair use and fair dealing, copyright laws are open for use as weapons of censorship against unwanted content, rather than being used for their original purpose of increasing expression and content. Still, in the history of those posts, you might struggle to find what you would consider the perfect example of why fair use laws are necessary.
Well, look no more, because we have that example in the case of the production company behind The Cosby Show suing the makers of a documentary entitled Bill Cosby: Fall of an American Icon.
The production company that made The Cosby Show has sued the BBC (.pdf) over a documentary the British network aired about the rape allegations against Bill Cosby. Carsey-Werner, the production company that is the plaintiff in the case, says that the documentary is infringing its copyright because it uses eight audiovisual clips and two musical cues from The Cosby Show
The complaint lists eight video clips that are used in the documentary. All are between seven and 23 seconds long, except for one clip that lasts 51 seconds. Adding together the time that viewers are either seeing a clip or listening to one of the musical cues, lawyers for the plaintiff say that "the Infringed Works were either seen or heard (or both) in Fall for a total of 234 seconds," or a total of 6.5% of the hour-long documentary.
Those clips, totaling less than four minutes of total run-time, were enough for the Carsey-Werner Company to file this suit, complaining that the clips were unlicensed and, therefore, infringing upon its copyright of the show. The complaint also insists that the documentary could have and should have been made without those clips at all, indicating that this is not a fight over lost licensing revenue, but the use of the clips at all. Even more absurdly, the complaint claims that the documentary used the clips because the filmmakers knew that clips of The Cosby Show would "appeal to viewers."
Anyone with a cursory knowledge of fair use laws will realize that the use of the clips in this case is obviously protected for any number of reasons. The clips are short in length and in no way compete with the original show. The purpose of using the clips is not to compete with the show at all, in any case. Finally, the use of the clips is undertaken as part of a commentary on a public and maligned figure in Bill Cosby. Literally everything about this screams for a fair use defense, all the way up to and including the fact that the clips weren't used to "appeal" to viewers at all, but rather to show Cosby's one-time status as an American icon and, I surmise, to give viewers the impression that watching the shows knowing what we know now is just kind of gross. There's simply no way to make this documentary properly without including some clips of the show.
Norma Acland, Carsey-Werner's general counsel, seemed to acknowledge as much when asked if any licensing agreement would even have been entertained.
When I suggested Carsey-Werner might decline to license any clips at all for a documentary about criminal allegations against Bill Cosby, Acland said the right to decline licensing is "one of the major parts of being a copyright owner, isn't it?"
Asked whether Carsey-Werner would have agreed to license clips for the documentary at all, Acland said, "I don't know the answer to that. But at least we would have had the choice, wouldn't we?"
Except that removing that choice from the copyright holder is the very purpose of fair use laws. And it's important too. The Cosby documentary is a perfect example of this: it's about a public figure involved in allegations of sex crimes that are certainly in the public interest, therefore no commentary should be under threat by the copyright holder of that public figure's work. To suggest otherwise is plainly against the public interest and, frankly, more than a bit crazy.
I asked Acland if she was concerned about the possible implications on freedom of speech if copyright owners could stop documentarians from using television clips without permission and payment.
"I didn't realize you wanted to have a conversation about that," she said, declining to answer questions related to free speech.
One imagines Acland will be forced to speak on this topic at trial, should it ever get that far.
Playboy apparently has lawyers with itchy trigger fingers. As first spotted by Law360, Playboy Entertainment Group has sued the BoingBoing, the popular and awesome blog that covers a variety of issues around culture and technology. The case is technically against the company that owns BoingBoing, called Happy Mutants LLC. Law360 claims the lawsuit claims that BoingBoing "stole every centerfold ever." But... that's not at all what the lawsuit says.
It appears that the issue is this blog post from February of 2016, written by one of BoingBoing's core writers, Xeni Jardin. Here's a screenshot of the post from the lawsuit:
As you can see, it's a blog post titled "Every Playboy Playmate Centerfold Ever." There's a very short paragraph that reads:
Some wonderful person uploaded scans of every Playboy Playmate centerfold to imgur. It's an amazing collection, whether your interests are prurient or lofty. Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time.
And then it links to the Imgur page. Beneath that, it links to and embeds a YouTube video that apparently contains the same 746 images. Both the reddit collection and the YouTube video are missing now. Any sane and competent lawyer would recognize that this is BoingBoing reporting on and commenting on the existence of this collection. But not Playboy's lawyers from the law firm of Doniger / Burroughs, which describes itself, laughably, as "California's premier fashion, art, entertainment and technology law boutique." To those lawyers, BoingBoing, by writing about these collections, is magically responsible for them. No amount of pointless and excessive legalese employed by these lawyers can hide just how dumb and misguided this lawsuit is:
Plaintiff PLAYBOY owns 477 original photographs commonly referred to as Playboy Centerfolds (“Subject Works”) that have been registered with the United States Copyright Office. Attached hereto as Exhibit A is a chart listing the 477 Subject Works.
Plaintiff is informed and believes and thereon alleges that following PLAYBOY’s publication of the Subject Works, Defendants, and each of them used the Subject Works without Plaintiff’s authorization for commercial purposes on its website, including, but not limited to, their use in articles and advertising.
Plaintiff is informed and believes and thereon alleges that one such use of the Subject Works by Defendants, and each of them, was an article from February 29, 2016 touting the availability of “Every Playboy Playmate Centerfold Ever” for viewing or download without Plaintiff’s authorization, as shown below
Reporting on such a collection is clearly fair use. BoingBoing wasn't distributing the files. It wasn't hosting the files. It wasn't copying the files. It was just reporting on the existence of them (and saying nice things about them). And while Playboy may have a perfectly legitimate copyright claim against whoever uploaded all of the images to Imgur, it's ridiculous to argue that BoingBoing writing about the collection was infringing, or that it would harm Playboy in any way, shape or form.
Frankly, this feels like yet another pure SLAPP suit, and is yet another reminder of why we need a federal anti-SLAPP law. Even though this is filed in California, it's unlikely that California's anti-SLAPP law would apply, since the claims are copyright claims, which are federal, and state anti-SLAPP laws only cover state law based claims. Thankfully, copyright law does enable fee shifting for questionable lawsuits, and this one seems ripe for fee shifting. Again, Playboy seems to be going after the entirely wrong target here. And while it can even be argued that it's dumb for Playboy to go after someone uploading the collection elsewhere, arguing that BoingBoing is responsible, merely for writing about the collection and linking to it, is pure nonsense.
