Supreme Court Won't Hear Dancing Baby Case... Despite Gov't Admitting 'Serious Legal Error'

from the dancing-without-end dept

Sometimes I think purgatory must be filing a lawsuit over a wrongful DMCA takedown notice. I'm pretty sure that's how Stephanie Lenz feels. After all, she's been fighting against Universal Music issuing a bogus DMCA takedown against her dancing baby, and I'm pretty sure that "baby" will be graduating high school before too long. Last we'd checked in, the Supreme Court was debating hearing the appeal in the case, and had asked the White House to weigh in. The White House responded last month with a truly bizarre argument, agreeing that the 9th Circuit's ruling contained a "significant legal error" but said that this case was "not a suitable vehicle for correcting that mistake."

Whether it was for that reason or for no reason at all, the Supreme Court has now decided not to hear the appeal, meaning that the case is back (once again) in District Court, where it may actually go to trial to determine if Universal Music knew that the video was fair use when it issued the initial takedown.

As we've discussed time and time again, this particular case is an important one, if Section 512(f) of the DMCA -- the part that says you cannot file bogus DMCA takedowns -- is to have any teeth. The problem, right now is that there are piles upon piles of abusive DMCA takedowns, targeting all sorts of content that is perfectly legitimate and non-infringing. Yet, because there is basically no punishment for issuing such takedowns, they continue. Unfortunately, this particular case keeps coming out with "mixed bag" rulings that probably won't help very much in the long term. While we may have hoped that the Supreme Court would clear things up and make sure 512(f) actually does its job, it appears that's unlikely to happen any time soon.

Filed Under: 512(f), copyright, dancing baby, dmca 512, fair use, scotus, stephanie lenz, supreme court
Companies: umg

Comicmix Wins Against Dr. Seuss Estate On Trademark Infringement Claim, Copyright Claim In Serious Jeopardy

from the beam-me-mashup dept

Last year, Mike wrote about an interesting case between a small group of enterprising comic artists and Dr. Seuss Enterprises. Comicmix artists had created a parody mashup of Dr. Suess' Oh The Places You'll Go and the Star Trek universe to create Oh The Places You'll Boldly Go, a rather sweet take on both franchises. The creators of this new work setup a crowdfunding campaign, which the Dr. Seuss estate halted with takedown notices. The case ended up in court, with the Seuss estate claiming that the new work infringed both its copyright and trademark rights. The creators, along with Ken "Popehat" White, claimed all of this was well within the boundaries of Fair Use.

Well, the judge for the case has now ruled on the trademark matter, and it's a big win for Comicmix. Additionally, while the copyright claim survives for now, the judge makes it clear that things aren't looking great for that claim either.

Now, the United States District Court for the Southern District of California court has ruled on the trademark question and found that there is no valid trademark claim thanks to "nominative fair use," and also indicated that it would be favorably disposed to fair use defenses on the copyright question.

The estate has two weeks to prove copyright damages and to amend its trademark claims.

It's difficult to see how the Seuss Estate is possibly going to go about demonstrating copyright damages. Given the judge's review of the material and her analysis thus far on the copyright question, the copyright claim has a hell of a hill to climb. The Seuss estate argued that adjudicating the matter of Fair Use on the copyright claim at the motion to dismiss stage was inappropriate because of all the facts required to make that assessment. The judge didn't buy that, largely because the singular claim of harm made by the estate was the claim that it lost out on the opportunity to license the work at all.

As a threshold matter, Plaintiff argues that “while possible in rare instances to decide fair use at the pleading stage, it is inappropriate here, where significant material facts are necessary to make a determination of fair use.” (Opp’n 9.) However, the only genuine fact Plaintiff points to is that “the issue of whether the Defendants’ use . . . will appreciably harm the value of [Plaintiff’s] Works or . . . market simply cannot be made without discovery and further development of the record on this issue.” (Id. at 15–16.) And Defendants point out that Plaintiff’s sole allegation of market harm is that Defendants “usurped DSE’s licensing opportunities.” (Reply 4 (citing Compl. ¶ 32).) Thus, as long as the Court takes Plaintiff’s allegation of market harm as true, Defendants are otherwise correct that “[t]he complaint, and documents sufficiently referenced therein or otherwise subject to judicial notice, are sufficient to enable the Court to evaluate the issue of fair use.” (MTD 6.) In particular, the Complaint itself raises the issue of fair use, (Compl. ¶ 35), and the contents of the two primary books and other relevant works are before the Court and not in reasonable dispute, (RJN Exs. 5, 6).1 Accordingly, the Court concludes that fair use analysis is appropriate on this Motion to Dismiss and addresses each factor in turn.

As a bonus, the judge also acknowledges that mashup art is an emerging medium and states that bending to the claim by the Seuss estate would effectively kill off an entire form of art.

This case presents an important question regarding the emerging “mash-up” culture where artists combine two independent works in a new and unique way. See, e.g., Art Term, Postmodernism, Tate, http://www.tate.org.uk/art/art-terms/p/postmodernism (last visited Apr. 28, 2017) (“Often mixing different artistic and popular styles and media, postmodernist art can also consciously and self-consciously borrow from or ironically comment on a range of styles from the past.”). Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances. However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed.

In other words, shuttering an entire art form is not the purpose of copyright law at all, hence this sort of Fair Use defense. It's as eloquent a nod to why creativity ought not be stifled in favor of protectionism as I've seen in a court document and should be required reading for any judge ruling on matters of Fair Use.

And so we wait for two weeks to see what, if any, documented claim of harm the Seuss Estate can work up for its copyright claim. I expect we will all be underwhelmed.

Filed Under: copyright, dr. seuss, fair use, mashup, oh the places you'll go, star trek
Companies: comicmix

A Decade Later, Judge Says 'Jersey Boys' Use Of Unpublished Autobiography Is Fair Use

from the another-fair-use-win dept

We've seen some nice fair use wins lately, and here's another good one (though, I'd still argue it shouldn't have even needed fair use... but we'll get there), first written up by Eriq Gardner at The Hollywood Reporter. This is actually a lawsuit that's gone on for nearly a decade (and a dispute that's gone on for longer than that), and we first wrote about this case asking the simple question can you copyright the story of a band? Here's the shortened background: The Four Seasons was a well known music group decades ago. At some point in the late 1980s, one member of the band, Tommy DeVito, agreed to team up with a fan/lawyer, Rex Woodward, to write his autobiography. Woodward agreed to do all the writing based on interviews he conducted with DeVito, and his own knowledge of the band. That book was completed, but never published. DeVito and Woodward had an agreement that the book would be published with both their names and they'd split the proceeds 50/50. Soon after the book's completion Woodward passed away from lung cancer. Unbeknownst to Woodward's surviving family, DeVito registered the copyright on the autobiography a few months later, but without Woodward's name included. And, still, the book was never published.

In the mid-2000s, Woodward's family again tried to get the book published, just as the Broadway play "Jersey Boys" was about to open. Jersey Boys was a play about the Four Seasons, and it became phenomenally successful around the globe. Many of the people involved with the play admitted in various interviews that some of the play was based on DeVito's unpublished autobiography. And that is why Woodward's family sued, claiming that the play was a derivative work of the book whose copyright should have partially been held by Woodward, and demanding a cut of the play's massive profits. As mentioned, the court case has taken basically a decade, and it's bounced back and forth between the district court and the appeals court, with many, many, many different rulings (the procedural history is... crazy -- but also unnecessary to go through here, other than to mention that many of the defendants settled out of the case earlier). Either way, it ended up back in court for an actual trial, and the jury said that the use was not fair use, and awarded the Woodward family 10% of the money from the play.

In reviewing this, the judge has now tossed out the jury's decision there, and said that, as a matter of law, it's clear that the use of the work is covered by fair use and not infringing. The court goes through the standard four factors test for fair use (though, starts with number four -- which you don't see that often). The judge, Robert Jones, rightly points out that the effect on the market (factor 4) looks pretty bad for the Woodward family, since it's not clear there was any actual market for the book before the play existed. That is, the play only increased the market, rather than decreased it.

The evidence at trial indicated that before the Play debuted, the Work had no market value. Woodard, DeVito, Plaintiff, and Plaintiff’s sister had been unable to find any company interested in publishing the Work despite their various attempts to do so between 1990 and 2005, because interest in the Four Seasons was not great enough to make sales of the Work profitable. Under these circumstances, the fourth and most important Harper & Row factor “greatly favors” a defendant.

(I'll leave aside the rant I have inside me about courts claiming the 4th factor is the "most important" and save that for another day). The court goes on, and addresses the third factor as well:

To the extent the Work may be profitable today, it is almost certainly only because of the Play, which—and this is important under the third Harper & Row factor—consists of over 50% musical works (by running time) in which Plaintiff has no copyright, and the remainder of which (the non-musical script of the Play) is comprised of less than 1% of creative expression found in the Work and uses less than 1% of the Work. If anything, the Play has increased the value of the Work.

As for the "purpose and character of the work, the judge says that it weighs against fair use, but doesn't say much else about it. On the nature of the work, the court notes that in many cases, publishing an unpublished work weighs strongly against fair use -- but in this case, it's different because the reason the work was unpublished... was because it was deemed unpublishable:

A work that is only unpublished because it is unpublishable despite great efforts, however, is an atypical situation. Such a work is not unavailable to the public because of a deliberate choice by the copyright owner, but because it is not commercially viable. In this case, the unpublished nature of the Work does not overshadow its biographical nature. The Court finds that this factor weighs in favor fair use.

The judge then goes into more detail about the fact that very little of the copyrightable expression in the book actually shows up in the play. He notes that there are just a few small sections that involve copyrightable expression and where there's substantial similarity in the play (indeed, the judge notes that he went through the "painstaking" process of reviewing a DVD of the musical with the written work to find all the similar parts). The court then notes each of the areas of similarity -- many of which seem... pretty minimally related to the book, but the judge says there's at least enough there to consider if it's infringement. And in the end, finds... 145 words at issue.

In summary, at most, the jury could have found about 145 creative words to have been copied from the Work into the Play, whether as dialogue or creative descriptions of events. Those 145 words constitute about 0.2% of the approximately 68,500 words in the Work (approximately 250 words per page times 274 pages). This factor strongly weighs in favor of a finding of fair use, at least where the “heart” of the Work was not infringed.

The court further notes that while it can be infringing to use "the heart" of the work, since this work is biographical, the "heart" is fact-based, and thus not subject to copyright protection. Finally the court notes that there's a strong argument that the play about the band is very transformative compared to an unpublished autobiography of one member:

The “transformation” in the present case is both a change of purpose and a change of character. The Play takes on a different purpose from the Work when the script (most of which was not taken from the Work) is incorporated into musical performances using material in which Plaintiff has no copyright. The purpose of the Work is primarily to inform. Tommy DeVito set out to vindicate his perspective and reveal hidden truths. Woodard’s writing skills made the Work readable, even if the material was ultimately not commercially publishable. The purpose of the Play, however, is primarily to entertain. Even if the purpose of the Play were primarily to inform, the Play takes on a different character from the Work by the incorporation of Tommy DeVito’s singular perspective into a more complete and balanced description of events based on competing perspectives of all four band members. The Play is structured around this concept, with the characters of DeVito, Gaudio, Massi, and Valli sequentially narrating the Play from their own perspectives during the respectively titled Spring, Summer, Fall, and Winter portions of the play, i.e., the figurative “four seasons” of the history of the band. And in doing so, the Play adds creative expression beyond mere republication.... The transformative nature of the use in this case is significant.

And thus, with most of the factors pushing strongly towards fair use... it is determined to be fair use.

Of course, the case is far from over. There are still other factors at play and the judge grants a new trial on those points. And, it's possible (likely?) this new ruling will first be appealed. In other words... this decade-long case likely isn't over yet.

Filed Under: autobiography, copyright, fair use, jersey boys, play, rex woodward, tommy devito

Drake Winning Sampling Case Over Fair Use Is Big News... But Still Demonstrates The Madness Of Music Licensing

from the copyright-criminals dept

Something big happened last week in the world of music and copyright: a case about a music sample was won on fair use grounds. This basically never happens for a variety of problematic historical reasons. And yet, it did. The hip hop artist Drake was found not to be infringing on a Jimmy Smith composition due to fair use. And that's a big deal -- though the case also highlights the ongoing madness of today's copyright licensing laws (even beyond sampling). But we'll get there eventually. Let's start with the issue of copyright and sampling.

For years, we've talked about the pure madness of copyright law and music sampling. If you've never seen it, the documentary Copyright Criminals, is worth your time -- as it demonstrates how a bunch of stuffed shirt lawyers and clueless judges basically killed off an entire art form by demanding money for every tiny sample, no matter how much musicians transformed that sample. Album's like De La Soul's "3 Feet High and Rising" or the Beastie Boy's "Paul's Boutique" simply could not be made today -- which is just crazy. And the absolute worst court ruling regarding sampling was Grand Upright Music v. Warner Bros. from 1991 in which Gilbert O'Sullivan sued Biz Markie for making what was effectively a hip hop parody of his one big hit. The judge in that case -- Kevin Duffy -- never seemed to have any grasp of music, art, culture or even copyright law. His ruling in that case starts off with a total confusion about the difference between "stealing" and "copyright infringement."

"Thou shalt not steal." has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.

That's... a bad way to open things. And, that case changed sampling. The other big case in this genre of bad sampling rulings is Bridgeport Music v. Dimension Films in which Judge Ralph Guy, bizarrely summarized things as follows:

Get a license or do not sample. We do not see this as stifling creativity in any significant way.

Notice the lack of any consideration of fair use or transformative works or anything of that nature.

And, tragically, few cases have really challenged this view since. While lots of lawsuits are filed over sampling, most settle. It's rare for anyone to make a fair use argument. To some extent, it's really seemed like the record labels themselves haven't wanted any of these cases to go to trial, because they'd hate to have a ruling that says sampling is fair use. Over the past few years, we've seen a few cases pop up where we hoped we'd get a court to recognize fair use in sampling -- and yet they all seem to settle before the cases get that far. Getting such a judgment on the books would be a big, big deal and might (once again) revolutionize culture and unleash tremendous creativity.

And so now we have the Drake case, which is, undoubtedly, a good ruling. But it's not clear it's going to make as big a difference as some might hope. The details here are... rather specific. Drake's song Pound Cake / Paris Morton Music 2 opens with a slightly altered, but clear "sample" of famed jazz artist Jimmy Smith's Jimmy Smith Rap. You might think that the Jimmy Smith Rap is a rap song, but it's just Jimmy Smith talking (it appears extemporaneously) about the fun he and some others had making the album Off the Top. But the recording got included on the album as a separate track. It's not a song. It's just Jimmy Smith talking. The Drake song uses a large chunk of the Jimmy Smith Rap unchanged... but does make a few small edits, including changing Smith from saying "Jazz is the only real music that's gonna last. All the other bullshit is here today and gone tomorrow" to just saying "Only real music's gonna last. All that other bullshit is here today and gone tomorrow." Apparently the Jimmy Smith estate wasn't too happy with the changed meaning.

But here's the oddity: Drake's label licensed that track. So everything should be fine, right? Wrong. You forgot: music licensing is a swampy mess of insanity and patched together weirdness. As we've discussed elsewhere, when using a song, there are multiple different licenses you might need to get. You have to do one thing to license the sound recording, but something else entirely to license the "composition." The theory there is that one license pays the musicians and another pays the songwriters (though, in reality, it's often middlemen who get the money). Here, it seems that Drake's label didn't license the "composition" to pay the "songwriter." And your first reaction might damn well be "what songwriter? there's no damn song!" And you'd be right. Hell, even Jimmy Smith never registered the copyright as a composition. It was only his estate that registered the copyright 31 years after the not-really-a-song was released and only after they heard the Drake song and decided they didn't like it at all.

So, then, after registering the copyright on the composition (and even though the sound recording was properly licensed), the Jimmy Smith Estate sued Drake. And it's this that's found to be fair use. The judge, William Pauley, goes through the four factors. The first one, discussing whether or not the work is transformative may be the most interesting. The judge looks at a few different ways that Drake's lawyers argued the use was transformative -- and actually rejects two of the three arguments. He's not impressed by the argument that because Drake doesn't reference Jimmy Smith's album, he's using the words to refer to the process of making his own album (which is... a very weak argument). Similarly, he doesn't buy the fact that the addition of some quiet background music and general shifting of the words around is transformative. That... seems like a valid fair use analysis.

But the argument Judge Pauley finds convincing is interesting. He accepts the idea that by changing the meaning of the words, by cutting out the "jazz is the" from the "only real music that's gonna last," Drake may have created a transformative work:

Defendants’ first argument, on the other hand, strikes on a compelling reason to find this use transformative. There can be no reasonable dispute that the key phrase of JSR— “Jazz is the only real music that's gonna last. All that other bullshit is here today and gone tomorrow. But jazz was, is and always will be.”—is an unequivocal statement on the primacy of jazz over all other forms of popular music. Defendants’ use of JSR, by contrast, transforms Jimmy Smith’s brazen dismissal of all non-jazz music into a statement that “real music,” with no qualifiers, is “the only thing that’s gonna last.” Thus, Defendants’ “purposes in using [the original work] are sharply different from [the original artist’s] goals in creating it.” Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006). This is precisely the type of use that “adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning, or message.”

I'll admit I'm surprised (pleasantly so...) by this part of the ruling. If followed by other courts (and this is a non-precedential district court ruling, so don't get too excited...) that alone could be pretty big. Though, again, it's focused on changing the meaning of the composition and not the music... so not that useful for other music sampling cases.

As for the other factors, the judge argues that the second factor (the nature of the work) weighs against fair use. I'd actually argue that this one should have gone the other way, especially seeing as the "composition" wasn't actually a "composition" but just someone talking about his experience... but, that's not what happened here. On the third factor, on the amount used -- again, the court surprises me. Many courts tend to just look at the overall amount used and if it's a lot they say "no fair use" -- with a few importance exceptions. And, Drake used most of the Jimmy Smith Rap, even if it's rearranged. But relying on the important ruling in the Google Books case, Judge Pauley notes that the question here is whether or not the amount of copying was "reasonable in relation to the purpose of the copying" rather than at an absolute level. And here, it weighs towards fair use:

Here, the Court finds the amount taken by Defendants to be reasonable in proportion to the needs of the intended transformative use. Far from being extraneous to Pound Cake’s statement on the importance of “real” music, Defendants’ use of the lines describing the recording of Off the Top serve to drive the point home. The full extent of the commentary is, in this Court’s view, that many musicians make records in similar ways (e.g. with the help of A&R experts or the stimulating effects of champagne), but that only “real” music—regardless of creative process or genre—will stand the test of time. Accordingly, this factor favors a finding of fair use.

Finally, on factor four -- the impact on the market -- the court again finds in favor of fair use:

There is no evidence in the record to suggest that Pound Cake usurps any potential market for JSR or its derivatives. JSR, a spoken-word criticism of non-jazz music at the end of an improvisational jazz album, targets a sharply different primary market than Pound Cake, a hip-hop track. Further, Plaintiffs never attempted to establish a market for licensed derivative uses of the JSR composition copyright until Defendants used the recording on the Album. See Campbell, 510 U.S. at 592 (“The market for potential derivative uses includes only those that the creators of original works would in general develop or license others to develop.”). These considerations, coupled with the finding that Defendants’ use is highly transformative, forestalls the conclusion that Defendants took such “sufficiently significant portions of the original as to make available a significantly competing substitute.” Authors Guild, 804 F.3d at 223. Thus, the fourth factor favors the Defendants.

That seems pretty straightforward and correct.

Thus, with three of the four factors -- including the big first one -- pushing towards fair use, the use is declared to be fair, and thus not infringing.

I wouldn't be surprised to see the case appealed -- but the 2nd Circuit Appeals court has a history of being pretty good on fair use, so hopefully... it would hold up. Still, given the specifics of this case, and mostly the fact that it's about the composition, rather than the sound recording, I'm not sure that any ruling here would have that big an impact on sampling. We still need a better sampling case to hit the courts where fair use might be a useful tool.

Filed Under: copyright, drake, fair use, jimmy smith, mechanical license, sampling

Wikipedians Join Push For Fair Use In Australia After Six Government Reports Recommend It

from the how-many-more-do-politicians-need? dept

People in Australia have been asking for the introduction of fair use as part of a broader copyright reform for a long time. Techdirt first wrote about it four years ago, then again last year, when the Australian Law Reform Productivity Commission produced one of the best reports ever written on the topic by a government body. Amazingly, most of its ideas, including a call for fair use, survived in the final version of that document, which appeared at the beginning of this year.

However, it turns out that those are just a few of the six Australian government reports which have recommended adopting fair use for copyright in Australia. That emerges from a new entry on the English-language Wikipedia, called "History of fair use proposals in Australia". Its appearance is not simply down to some random urge to wiki: it's part of a new campaign by Wikipedians in Australia to put pressure on the government there to bring in fair use after so many official calls to do so. A post on the Wikimedia blog explains the current copyright situation in Australia:

all copying requires permission unless you are only using an insubstantial part of a copyrighted work (which is typically very hard to judge), or the Copyright Act provides a specific exception. The most important exceptions, the fair dealing exceptions, cover research, study, criticism, review, parody, satire, reporting the news, and professional advice as long as the use is "fair". Any use not for one of these purposes will be illegal, no matter how fair or reasonable it is, unless the government introduces a specific exception for it.

The post also points out ways in which Australia suffers as a result of the lack of fair use, for example:

Australian schools end up paying millions of dollars each year to use publicly accessible online content on websites that you use at home for free. No one is asking to be paid for using these websites, and the money rarely makes it to the copyright owner. Just as importantly, the use is transformative and socially beneficial. But because the Act doesn't say such uses are allowed, payment still has to be made.

As part of the campaign to raise awareness of fair use and its benefits, Wikipedians in Australia are adding a banner on the English Wikipedia, and Electronic Frontiers Australia and the Australian Digital Alliance have also set up a new site called Fair Copyright. It would be nice to think that all this hard work would lead to the recommendations of those Australian government reports being implemented at last. But as Techdirt noted last month, the copyright industry has built up a fund of $11 million specifically to fight changes to copyright law in Australia, so we can expect fierce resistance to any such moves.

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Filed Under: australia, copyright, fair use

Makers Of Payday 2 Donating DLC Profits To Help 2 YouTubers Fight Copyright Lawsuit

from the good-guys dept

The landscape of YouTubers who do reviews or takes on video games, including Let's Plays, and their interactions with the game makers themselves is one that lacks any sort of norm or uniformity. Some game developers understand the value these YouTubers bring to their businesses, while some tend to go on the attack with copyright claims. Some developers appreciate an open and honest ecosystem of reviews, including snarky reviews, while others attempt to suppress any sort of negativity.

But, as far as I'm aware of, Overkill Software, makers of Payday 2, is the first studio to donate proceeds from its DLC content to defend YouTubers from copyright lawsuits.

Ethan [Klein] and Hila [Klein], who run the YouTube channel H3H3Productions, make sketch comedy and “reaction” videos in which they comment on internet and YouTube culture. Last year, the husband-wife team filmed a video mocking YouTuber Matt Hosseinzadeh, or “Bold Guy,” for his video about picking up girls using parkour. In response, Hosseinzadeh filed a complaint with the Southern District of New York District Court alleging copyright infringement. In the complaint, Hosseinzadeh accuses the Kleins of “purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop.”

Now, we've discussed this lawsuit previously. It's a suit clearly designed to shut up two critics who engaged in what seems to be pretty straightforward Fair Use of Hosseinzadeh's content. Following along with the court proceedings, the last entry seems to indicate the court feels this whole thing, which has already gone on too long, will end with a summary judgement. I can't be certain the court feels that this is going to end up going in the Kleins' favor, but that would be my educated guess based on our previous analysis of the suit.

Regardless, Overkill Software has swooped in to try and help the Kleins by baking them into Payday 2 via DLC and using any money made by it to fund the Kleins' legal efforts.

On April Fools, Overkill Software introduced Ethan Klein into first-person shooter Payday 2. Yesterday, Overkill, who are fans of the Kleins, announced they’ll be making the joke a permanent, and charitable, reality. This Fall, the faces behind H3H3Productions will be playable characters in Payday 2, and Overkill studios will donate all of the DLC’s revenue to the Kleins as they continue to fight their legal battle that, they say, could financially ruin them even if they win.

While the Kleins were initially represented pro bono, a year later, after switching firms, the price of fighting the lawsuit has reportedly snowballed, with the first month allegedly costing over $50,000. And they will continue to fight it, the Kleins say, to protect fair use and prevent a bad precedent. (YouTube personality Philip DeFranco helped raise $170,000 for them in a GoFundMe, arguing that the lawsuit is “an attempt to step on freedom of speech via a broken copyright system and most people’s confusion over Fair Use.”)

This is, to some degree, connecting with fans. Fans, at least, of the Kleins. It's also refreshing to see a game studio take the stance that they are fans of YouTubers that do some videos based on video games and are actively looking to support them against a bogus copyright lawsuit. Can you imagine, say, Nintendo doing something like this? Given its hardline stance on intellectual property, it's a difficult thing to conjure in one's mind.

Overkill, by the way, is taking 0% from the sales of the Klein DLC. It's a great look for the company.

Filed Under: copyright, ethan klein, fair use, hila klein, let's play, matt hosseinzadeh, payday 2
Companies: overkill software

Public Access Channel Tries To Shut Down Use Of Council Meeting Video Clips; Claims They Aren't Fair Use

from the if-we-don't-like-the-context,-it's-unfair-use dept

Apparently enough time has passed since the last episode of (attempted) copyright thuggery that someone feels it's time to take their IP wheels out for a disastrous spin.

A student-focused political action group is the recipient of a bogus cease-and-desist demand from a local non-profit. BugPAC was formed from the ashes of members' respect for local politicians and school administrators, as detailed in the origin story at its website.

At the May 4, 2015, meeting, student leaders went to the Borough Council and requested additional street lights in downtown alleyways heavily traveled by students. The proposal was dismissed virtually out of hand. In response to the request, Councilwoman Theresa Lafer implied that if the lights were installed, students would gather around those lights like bugs and cause property damage.

And thus, the BugPAC was born.

The group began advocating for candidates it felt might be more responsive to student issues. It produced a promo video using some footage of public council meetings.

The BugPAC Campaign to reclaim State College released a video on its Facebook page early May 1 explaining the strengths of its endorsed candidates — Michael Black for State College Mayor and Marina Cotarelo, Evan Myers, and Dan Murphy for Borough Council.

The video also highlights anti-student sentiments from current Borough Council members and current State College Mayor Elizabeth Goreham using C-NET footage from Borough Council meetings, which is all available for free on the C-Net website.

C-NET, however, apparently doesn't feel the footage of public meetings belongs to the public in any way, shape, or form. Four days after BugPAC posted its video, it received a threat-o-gram from C-NET. C-NET claims all the video it hosts is "solely" its property, even if it's only engaged in documenting meetings open to the public.

Even if we grant C-NET this part of its IP assertions, there's still a little thing called fair use, and that's very definitely what BugPAC's use of C-NET clips is. However, C-NET clearly doesn't think so. It claims in its letter that it "reviewed" the video and proactively determined BugPAC's use of the clips wasn't "fair use." This is a hilarious conclusion to reach as a complainant. C-NET is not just wrong about fair use in the expected way. It's wrong about fair use in a very novel way -- one that involves making very ill-informed decisions on behalf of the accused.

Kevin Horne of BugPAC has not only refused to take down the group's video, but has fired back with a lengthy explanation of fair use and how the disputed video's use of C-NET clips is clearly that. If C-NET's legal representation takes the time to read the entire letter, it may be the first time its lawyers have actually perused the legalities of the right C-NET tried to preemptively deny BugPAC.

Horne's letter also goes on to attack C-NET's attempt to limit the public's use of public meeting recordings.

“BugPAC has reviewed your bald allegation that you “reviewed the Video and determined that [BugPAC’s] use of C-Net material does not qualify as ‘fair use’ under the Copyright Act” and believes, as set forth above, that such a claim lacks merit,” he wrote. “Beyond the legal analysis is the question of morality and proper use of public resources to promote the public welfare and transparency in government. The public has the right not only to access C-Net material, but to make commentary on it. In C-Net’s case, it plays a crucial function in the democratic process by recording and archiving public meetings of great consequence. These are elected officials in a public forum. It is not for C-Net to deny our right to present that information to voters or for the voters to consider it. C-Net’s current policy works against a reasonable definition of the common good.”

This should be enough to shut C-NET up about its unviolated copyright. Then again, it might not. There are other issues possibly at play here. BugPAC endorsed Michael Black for State College Mayor in its video. As BugPAC notes in its post, C-NET's executive director is married to a competing mayoral candidate. This may be why C-NET was right on top of the alleged infringement within four days of the video's posting. If so, this attempt to fight unliked speech by threatening the free speech of others (rather than using the less popular "MORE speech" option), C-NET and its apparent favored mayoral candidate could be in for more unscheduled public appearances.

Filed Under: city council, copyright, fair use
Companies: bugpac

Parody Protection For Fair Use Is Important: Taiwanese Man Faces Jail Time Over Parody Videos Of Movies

from the unfair-abuse dept

Because we talk so much about fair use here, we often likewise find ourselves talking about parody. Parody is one of the forms of content protected under fair use, and that protection is responsible for the availability of a great deal of great content. Parody tends to be equal parts humor and commentary and enjoys a long history of important speech here in America.

But parody doesn't have that protected status in intellectual property laws abroad. Taiwan, for instance, has a form of fair use protections, but those protections carve out no space for parody. This has resulted in local film studios going after one popular YouTuber in such a way as to include law enforcement raids of his offices and the threat of very real jail time.

Chung Wei-ding, more famously known as AmoGood ... makes videos of big screen films, where he often humourously summarises their plot with quick-speaking voiceover. He's done parodies of local films, as well as Hollywood blockbusters like 50 Shades of Grey and Guardians of the Galaxy. AmoGood has over 990,000 subscribers, who often virally share his creations on social media.

But Taiwanese film studio AutoAi Design, and streaming platform KKTV, say 31-year-old infringed on the studios' copyright. AutoAi Design, which distributed films like Doraemon: Nobita's Space Heroes in Taiwan, also said that AmoGood's critiques have greatly dented its ticket sales at the box office. Taiwanese prosecutors obtained a warrant to raid his company premises for evidence, and the YouTuber was called into a Taipei police station for questioning last week, the China Post reported.

You will immediately see the stark difference in treatment between Wei-ding and his American counterparts, such as CinemaSins, which likewise produces parody commentary on blockbuster films. These short-ish videos laced with wicked humor and short clips throughout the films which they comment on are clearly transformative on their own, but its their clear status as parody that protects them in America. Wei-ding doesn't have that status to rely on, though some media reports indicate that he may be in trouble for other reasons as well.

AmoGood may be in a bind in Taiwan, whose media laws don't count parodies as fair use. The territory's courts are likely to consider other factors too, such as whether the work takes away potential sales or viewers from the original work. Additionally, reports have speculated that AmoGood downloads the source films illegally, since he's able to produce the parodies so quickly after their box office debut.

Any copyright claim on him pirating the films would, however, be entirely separate from the charge that his videos themselves are infringing. And, when asked by the film studios targeting him, their comments are all about his videos, not from where he sourced his material. In those comments demonstrate the importance of protecting parody in order to stave off the obstruction of speech over hurt feelings.

Some Taiwanese filmmakers aren't fans. A couple of them told Apple Daily that his videos were "disrespectful" to their movies.

"Each film is the brainchild of directors and producers, and this guy just took it and made fun of it," Kevin Chu — the director of Taiwanese hits like Kung Fu Dunk — told Apple Daily. "I don't believe that this is considered fair use. It's disrespect."

It goes without saying that whether his films are disrespectful or not has no bearing on whether or not his videos ought to be covered by fair use. But when you leave that door open by failing to protect parody, these are the types of arguments you'll get from film studios. For all of this, Wei-ding faces up to five years in prison on top of civil penalties for his parody videos. If that doesn't strike you as crazy, it should.

Filed Under: amogood, chung wei-ding, copyright, fair use, parody, taiwan
Companies: autoai, kktv

Australia's Copyright Agency Keeps $11 Million Meant For Authors, Uses It To Fight Introduction Of Fair Use

from the not-very-fair dept

Even though stories of copyright collecting societies failing to distribute the monies that they collect to artists abound -- we wrote about one just a few weeks ago -- this doesn't seem to discourage others from continuing to bend the rules somewhat. Here, for example, is a story from Australia, where there is a major battle to switch to a US-style fair use approach to copyright. Naturally, the affected industries there hate the idea of allowing the public a little more leeway in the use of copyright materials. So Australia's copyright collection agency decided to build up a war-chest to lobby against such changes. The Sydney Morning Herald explains where the money for that fighting fund is coming from:

Australia's government-mandated copyright collection agency has been diverting payments intended for journalists and authors to a [$11 million] "future fund" to fight changes to the law.

Specifically, the monies come from payments made by educational establishments in order to use orphan works. That's a major change of the agency's policy that was not disclosed to the Australian government's Productivity Commission that oversees this area:

[The Copyright Agency] has been criticised in a Productivity Commission review that is before the government over the transparency of its accounts and its practice of retaining, rather than returning, millions of dollars collected from schools and universities on behalf of the owners of "orphan works" who can't be traced.

An examination of accounts shows that in a change not disclosed to the commission or to its members in annual reports, since 2013 it has been channelling that income into a fund set up to campaign against changes to the copyright law.

Between 2013 and 2016 the fund amassed [$11 million].

In other words, schools and universities have effectively been paying to lobby against changes to Australian copyright laws that would be very much in the interest of themselves, the public, and writers, who could use copyright materials more freely under a fair use system. According to the Sydney Morning Herald article, the top three executives at Australia's Copyright Agency are all paid around $200,000 a year to come up with these kinds of ideas. It would be interesting to know whether Australian authors consider that $600,000 well spent.

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Filed Under: australia, collection society, copyright, fair use, lobbying, orphan works