GoldieBlox Pulls Beastie Boys Video, Promises To Drop Legal Dispute

from the the-inevitable-end dept

This isn't a huge surprise, but given all the publicity, Goldieblox has agreed to pull down the video that included the Beastie Boys' song "Girls," with an open letter to the remaining members of the band, saying that while they believe that their use was fair use, they wanted to respect the wishes of Adam Yauch and his strong desire not to see the band's music used in commercials.

Dear Adam and Mike,

We don’t want to fight with you. We love you and we are actually huge fans.

When we made our parody version of your song, ‘Girls’, we did it with the best of intentions. We wanted to take a song we weren’t too proud of, and transform it into a powerful anthem for girls. Over the past week, parents have sent us pictures and videos of their kids singing the new lyrics with pride, building their own Rube Goldberg machines in their living rooms and declaring an interest in engineering. It’s been incredible to watch.

Our hearts sank last week when your lawyers called us with threats that we took very seriously. As a small company, we had no choice but to stand up for ourselves. We did so sincerely hoping we could come to a peaceful settlement with you.

We want you to know that when we posted the video, we were completely unaware that the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be used in advertising. Although we believe our parody video falls under fair use, we would like to respect his wishes and yours.

Since actions speak louder than words, we have already removed the song from our video. In addition, we are ready to stop the lawsuit as long as this means we will no longer be under threat from your legal team.

We don’t want to spend our time fighting legal battles. We want to inspire the next generation. We want to be good role models. And we want to be your friends.

Sincerely,

Debbie + Team GoldieBlox

A very strong argument can be made that the company should have communicated directly with the Beastie Boys and their lawyers prior to filing for declaratory judgment. But what many people who are commenting on this, who have little to no understanding of copyright law, don't realize, is that filing for a declaratory judgment when threatened is both very standard and quite sensible. As the copyright maximalists are fond of reminding us, you often can't know for sure if something is fair use until a judge says so. Frankly, it shouldn't be this way. Fair use shouldn't require a court to decide, but copyright maximalists have made it so. And, given that, if someone threatens you, the best way to make it clear that it's fair use is to quickly get a judge to weigh in. That's exactly what Goldieblox did, and it's pretty standard in cases where someone is accused of copyright infringement.

As we've noted in multiple posts, there's also a very strong argument that this is absolutely fair use. However, that doesn't mean that Goldieblox needs to continue the fight. Pulling the video and the lawsuit may remove what would have been a very interesting copyright/fair use case, but as we ourselves have pointed out many times, just because you can go legal, it doesn't always make sense to do so. The question of whether or not the Beastie Boys want their music in ads may be relevant to whether or not the original effort was "respectful," but is not an issue in the fair use equation.

Which brings me to one final point on this. Many people have been arguing that "respect" is all about "permission." This is a very dangerous view. As we've pointed out over and over again, permission-based culture is no culture at all. Creating art is about breaking barriers, building on those who came before and doing it in new and unique ways. The Beastie Boys themselves clearly recognized and did this themselves many, many times. Often, getting permission is impossible, and focusing on needing permission crushes fair use in dangerous ways. A healthy fair use doctrine has resulted in tremendous art, culture and innovation. Demanding permission in all cases would be stifling. It also leads to a thicket problem, that tends to benefit the gatekeepers of culture, rather than the actual creators and artists, many of whom rely strongly on fair use themselves.

As Mathew Ingram notes, fair use is something worth fighting for, and while Goldieblox made the reasonable decision not to continue this fight, we should be extremely wary of attempts to shut down and close off fair use for the sake of both our culture and innovation.

Filed Under: beastie boys, copyright, fair use, permission
Companies: goldieblox

Beastie Boys Say They Don't Want Music In Ads, But Fair Use Doesn't Care

from the that's-not-how-it-works dept

On Friday, we wrote about the declaratory judgment lawsuit that toy company GoldieBlox filed against Universal Music, the Beastie Boys and a few related parties, arguing that their commercial, which parodies the BB's song "Girls" is fair use and not copyright infringement, following what they claimed was a threat from the band's lawyers. Over the weekend, some in the press started quoting a representative of the Beastie Boys who said no such threat ever happened:

A representative for the Beastie Boys explained: "There was no complaint filed, no demand letter (no demand, for that matter) when [GoldieBlox] sued Beastie Boys."

Today, the Beastie Boys, clearly in damage control mode, sent an open letter to the company:

Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.

We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.

As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.

When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.

Now, it is true that some in the press have mistakenly stated that the Beastie Boys sued GoldieBlox, and that's clearly not the case. GoldieBlox filed for declaratory judgment, which is a fairly standard move after someone claims that you violated their rights. It's not a lawsuit seeking money -- just to declare that the use is fair use. While the Beastie Boys say they made no threat or demand, the lawsuit notes that their letter (which still has not been revealed in full) made a direct claim that the video was copyright infringement, and also that this was a "big problem" that has a "very significant impact."

Many people in our comments and elsewhere who have defended the Beastie Boys have pointed out that the band does not allow its music to be used in advertisements. And, in fact, that in Adam Yauch's will, it explicitly stated that none of their music was ever to be used in advertising. And, from the Beastie Boys' open letter, it appears that was their main concern.

But, here's the thing: as principled as Yauch was about this, and as admirable as it may be for him and the band to not want their music appearing in advertisements that does not matter under the law. If the use is considered fair use, then it can be used. Period. There is no clause in fair use law that says "except if someone's will says otherwise." The very point of fair use is that you don't need permission and you don't need a license.

So the fact that they don't like their work in advertisements is entirely meaningless to the legal question. In fact, if anything it may harm the claim that it's infringement. I've spoken to a bunch of copyright lawyers about this, and almost all of them agree that this is likely fair use (with some arguing that it's a totally clear-cut case). Some have argued that because it's an advertisement for a company that precludes any possibility of fair use, but that's absolutely not true. Plenty of commercial efforts have been considered fair use, and, in fact, many of the folks who rely the most on fair use are large media companies who are using things in a commercial context. Furthermore, the Supreme Court explicitly stated in Campbell v. Acuff-Rose Music, Inc. that commercial use can be fair use, noting that if commercial use made things automatic infringement, it would destroy fair use:

If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country." Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases...

And later, in overturning the appeals court ruling that went the other way:

It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of "Oh, Pretty Woman" rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use.

Both of those clearly apply here as well. Some have pointed out that GoldieBlox didn't "declare" this video a parody. But, once again, in the very same case, the Supreme Court notes you don't need to do that:

We note in passing that 2 Live Crew need not label their whole album, or even this song, a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this being its first parodic essay. Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).

That's not to say the commercial nature of this venture won't play into any analysis. It is certainly one factor in many. However, as Ken White points out, if this weren't a commercial, there's absolutely no doubt that it's fair use, as it hits on pretty much every other factor. Furthermore, the very fact that the Beastie Boys refuse to allow their songs in ads actually works against them because they can't legitimately argue that they lost money because of this, since they've outright declared that they won't license music for such things. So no money could be lost.

And, in fact, this is exactly what fair use is for: to enable people to use music, without permission, in situations that create a very different kind of work where the copyright holder would almost certainly not grant permission.

Filed Under: adam yauch, advertising, beastie boys, copyright, fair use, parody, permission
Companies: goldieblox, universal music

Disappointing: Tim Berners-Lee Defends DRM In HTML 5

from the he-should-know-better dept

We recently wrote about the truly stupid idea of building DRM into HTML5. At SXSW this week, web inventor Tim Berners-Lee was asked about this, and he surprisingly defended the decision, claiming that it was necessary to get companies to use HTML5:

During a post-talk Q&A, he defended proposals to add support for "digital rights management" usage restrictions to HTML5 as necessary to get more content on the open Web: "If we don't put the hooks for the use of DRM in, people will just go back to using Flash," he claimed.

Berners-Lee is so good on so many issues (most of his talk seemed to be about the importance of openness) that this response really stands out as not fitting with his general view of the world. Cory Doctorow has responded eloquently to TBL, explaining why he should be against the DRM proposal.

What's more, DRM is wholly ineffective at preventing copying. I suspect Berners-Lee knows this. When geeks downplay fears over DRM, they often say things like: "Well, I can get around it, and anyway, they'll come to their senses soon enough, since it doesn't work, right?" Whenever Berners-Lee tells the story of the Web's inception, he stresses that he was able to invent the Web without getting any permission. He uses this as a parable to explain the importance of an open and neutral Internet. But what he fails to understand is that DRM's entire purpose is to require permission to innovate.

For limiting copying is only the superficial reason for adding DRM to a technology. DRM fails completely at preventing copying, but it is brilliant at preventing innovation. That's because DRM is backstopped by anti-circumvention laws like the notorious US Digital Millennium Copyright Act of 1998 (DMCA) and the EU Copyright Directive of 2002 (EUCD), both of which make it a crime to compromise DRM, even if you're not breaking any other laws. Effectively, this means that you have to get permission from a DRM licensing authority to add any features, since all new features require removing DRM, and the DRM license terms prohibit adding any features not in the original agreement, and omitting any of the mandatory restrictions featured in that agreement.

Doctorow makes two other key points in this: (1) that the W3C (the standards setting body for HTML5) has an enormous role in keeping the web free and open -- and imposing DRM is abusing the trust it has built up and will backfire badly and (2) that the big content players who insist they "need" DRM are bluffing.

As the leading standards-setting body for the Web, the W3C has an enormous, sacred and significant trust. The future of the Web is the future of the world, because everything we do today involves the net and everything we'll do tomorrow will require it. Now it proposes to sell out that trust, on the grounds that Big Content will lock up its "content" in Flash if it doesn't get a veto over Web-innovation. That threat is a familiar one: the big studios promised to boycott US digital TV unless it got mandatory DRM. The US courts denied them this boon, and yet, digital TV continues (if only Ofcom and the BBC had heeded this example before they sold Britain out to the US studios on our own high-def digital TV standards).

Flash is already an also-ran. As Berners-Lee himself will tell you, the presence of open platforms where innovation requires no permission is the best way to entice the world to your door. The open Web creates and supplies so much value that everyone has come to it – leaving behind the controlled, Flash-like environs of AOL and other failed systems. The big studios need the Web more than the Web needs big studios.

The Big Content guys have been seeking to remake the web in their image (i.e., "TV") for over a decade now, still believing that they're the main reason people get online. They're not. There's room for them within the ecosystem, but professional broadcast-quality content is just a part of the system, not the whole thing. If the world moves to HTML5 without DRM, the content guys will whine about it... and then follow. Especially as the more knowledgeable and forward-looking content creators jump in and succeed.

Filed Under: cory doctorow, drm, html5, internet, openness, permission, tim berners-lee

Jonathan Coulton Publicly Shames Fox For Copying His Arrangement In Glee

from the social-mores dept

We've talked about Jonathan Coulton and his embrace of the internet and new business models plenty on Techdirt -- as well as his nuanced arguments concerning copyright infringement. He's not "pro-piracy," but recognizes that the overall growth of the internet that has resulted in more infringement has also created tremendously valuable tools and services that made his music career possible. Thus, recognizing that the two things go hand in hand, he notes that it's better in the long run. So what does he do when someone infringes on his rights? Well, he goes public.

As some have noted, Coulton has called out Fox for apparently copying his arrangement of Sir Mix-a-Lot's "Baby Got Back" in the TV show Glee. You can see his version here: And then there's the Glee version, which is quite similar, and includes a few of Coulton's own additions: Yes, his is a cover song, but he introduced some variations that appear to be directly copied in Glee. Is there a potential copyright claim here? Well, that depends -- and the copyright law here is complex. You can cover a song by paying compulsory license fees, and Fox likely did that to whoever holds the copyright on the original. But they copied specific changes (and possibly the music) that Coulton added, which could potentially be covered by his own copyright (of course, whether or not he registered them could also impact what he could do about it). And let's not even get into the issue of things like sync licenses for video, and the (still open) question of whether or not Glee actually used part of Coulton's own recording.

In the end, though, almost none of that probably matters. Because Coulton seems unlikely (we hope) to go legal here. Instead, he's just going with the public shame route -- with a simple tweet about the situation, which has set off "the internet" to help him make his case and embarrass Fox and Glee.

Internet sleuths immediately went to work on the question, creating side-by-side comparisons of the audio (which are very convincing) and even unearthing an official Fox version of the as-yet-unreleased single in the Swedish iTunes store. While the track is not currently available in the American store, gaming blog Kotaku claims that it “was available earlier and was pulled by Fox.” Despite calls from Twitter and multiple media organizations, the network has yet to make a statement as of this afternoon, but, all things considered, it’s looking pretty bad for Glee.

Of course, as a public storm of support rises behind Coulton, it seems likely that Fox/Glee producers will step up, apologize and probably cut Coulton a check of some sort. All of that seems a lot more efficient -- and it didn't require copyright law at all. Just a bit of public shaming for a bad actor. Of course, just imagine if the situation had been reversed, and Coulton was caught making use of a News Corp.-owned song. In that case, you'd have to imagine that the cease and desist letters and lawyers would have popped up quite quickly....

Filed Under: copying, cover songs, glee, jonathan coulton, licenses, permission, public shaming
Companies: fox

Fair Use/Fair Dealing Doesn't Require Payment Or Permission

from the how-things-work dept

It continues to amaze me just how much people can't get their heads around the rather basic concept of fair use (or, as some countries prefer, fair dealing). Howard Knopf has a blog post, talking about a Canadian university that, for reasons that make no sense, has included in its "copyright guidelines" the claim that it pays an annual fee to Canadian copyright collection society Access Copyright (currently involved in a bit of a controversy concerning its fees) to cover "fair dealing" copying.

However, as Knopf writes, this makes no sense:

This, of course, reflects a serious misunderstanding. If the copying is “fair dealing”, it is unnecessary to pay Access Copyright or anyone else for copying it.

The whole point of fair use/fair dealing is that it allows you to make use of works without permission or payment.

And yet it's very, very difficult for some people to comprehend this. For example, we were recently sent an email from someone who didn't like that we quoted a story that he had written, first saying that it did not meet his definition of fair use. I wrote back (nicely, I thought) explaining why our use was fair (we only used a small portion of the text, we added significant commentary on top of it, etc.). This person wrote back saying that he was very upset that we failed to "negotiate" with him, and until we came to a mutually agreed upon definition of fair use, we were no longer "permitted" to quote anything he has written.

I'm really not quite sure how to respond to such people, because explaining to them what fair use is seems to only make them more upset. The whole point of fair use is that we don't need permission. We certainly don't need to come to a mutually agreed upon definition of what that person considers fair use (since he outright rejected my definition, despite my offer to send citations showing that my definition is the legal one). Once you're talking about permission or negotiating, you're no longer talking about fair use.

Of course, in this case, there is a fairly simple solution: even though we legally can, I've instructed everyone here to simply never use this site as a source again, since the site's owner apparently would prefer not to have our traffic. That's got nothing to do with "fair use" however...

Filed Under: canada, fair dealing, fair use, permission
Companies: access copyright

The Chilling Effects Of Copyfraud: Blocking A Researcher From Fair Use... And Scaring Him Into Staying Quiet About It

from the chilling-effects dept

I recently came across yet another story of copyfraud, but due to the nature of our litigious society and the way in which certain companies over-aggressively defend their rights, I need to prevent many of the details from being explained here, and have had to anonymize nearly everything. A family friend recently published a very interesting research paper on a popular topic. To demonstrate a certain point in the paper, he found a perfect image from a book that was published over 50 years ago. Again, to avoid identifying the situation, I cannot provide any more info, other than to say that this the image represented a tiny portion of a much larger work -- and that its usage without a doubt met all of the criteria of a typical fair use defense. The use was for non-profit educational purposes, it was a tiny part of a much larger work (and, in many ways, an inconsequential piece of that larger work, even if it was perfect for the point being demonstrated). The effect on the market for the original work was at worst nil, and at best positive, in that it might cause people to seek out the original work. In my review, it appears that the original work is now long out of print, and it is available only by collectors at an extremely high price. Thus, the use of the work is not for this person's financial benefit, and has absolutely no impact on the original publisher.

Even so, because we unfortunately live in a society where it's been drilled into our heads that you must get permission (even if the entire purpose of the fair use doctrine is for situations like this where no permission is needed), my friend reached out to the very, very large and well known conglomerate that holds the copyright on the original. He explained what he wanted to do and why, very clearly and concisely. The company's response was actually quite friendly, all things considered, and the person who responded appears to reject his request regretfully, noting that she is "in the unenviable position" of having to say no. The reasoning, the letter states, is that the work is protected by intellectual property laws and that the company "must be constantly vigilant and sometimes stringent in exercising control over their use."

There are significant problems with this. The whole point of fair use, again, is that these kinds of uses do not need permission. Furthermore, while trademark law does require some level of "vigilance," the same level of vigilance is not required for copyright law, and it is entirely possible to turn a blind eye to such usage and not lose the powers that copyright grants. Finally, there would be no harm at all in allowing this or even granting the guy a simple license. That would take away nothing from the company's IP rights.

But the bigger issue to me is actually the chilling effects that this situation has had. After sharing all of these details with me, I asked if he would be okay with me publishing the story with the full details. And he refused. Despite recognizing the near certainty of winning any legal dispute (as well as the fact that it is unlikely he would actually get sued), the very small risk alone is too much to bear. The idea that a massive global conglomerate might suddenly choose to sue this guy for some non-profit research he did out of personal interest -- just because of a single graphic to (humorously) illustrate a single point -- just isn't worth it. And that's the classic tale of a chilling effect of copyright law. Scaring people into not speaking up or not presenting their story.

Filed Under: chilling effect, copyfraud, education, fair use, permission

Lomax Jukebox Going Digital Is Great News... But Let's Not Forget That He Claimed Copyright On Cultural Works That Weren't His

from the copyfraud dept

The NY Times recently reported on the excellent news that "technology has caught up to the imagination of Alan Lomax." In case you don't know, Lomax was something of a global folk music archivist and "ethnomusicologist." He traveled the world, recording local folk music in huge collections. He did this for decades, and apparently wanted to create a giant jukebox so people could hear everything he recorded. And, now, ten years after he died, the collection -- including more than 5,000 hours of recordings -- is going online. It's kicking off with 17,000 tracks, and much more is still being digitized.

The article talks about how he had a "utopian" vision in making this music available:

“Alan was doubly utopian, in that he was imagining something like the Internet based on the fact he had all this data and a set of parameters he thought of as predictive,” John Szwed, a Columbia University music professor and the author of “Alan Lomax: The Man Who Recorded the World,” a biography published in 2010, told The Times. “But he was also saying that the whole world can have all this data too, and it can be done in such a way that you can take it home.”

Now, to be clear, all of this is great, but I do wonder about some of the copyright questions here. Last year, we wrote about the bizarre and convoluted story of how Lomax is credited as a songwriter on a Jay-Z song. Apparently, when he recorded these random folk songs around the globe, he claimed copyrights on the works. This is, of course, questionable. At best, he might have a claim on a copyright to the sound recording only, though even that might be questioned, as his creative input into the recording likely would not be enough to qualify for copyright. The copyright, if any exists, would likely belong to the singers (and possibly whoever wrote the songs, though it's likely that many were simply passed down over time).

And yet, Lomax put a copyright claim on the works, including a recording he did of the traditional work song, "Rosie," recorded by Lomax at Parchman Farm, sung by convicts there. That song became the basis of a song by the Animals -- who didn't use the actual recording. Grand Funk Railroad then covered the song (again, not using the actual recording, but starting from scratch). However, Lomax was still credited as a songwriter, despite having nothing to do with it. KRS-One then sampled a guitar riff (having absolutely nothing to do with the original "Rosie") in a song... which Jay-Z then sampled in his song, "Takeover." Lomax's singular contribution was recording "Rosie," a traditional song which almost certainly was public domain. Even if Lomax could claim a copyright on his recording (still questionable), he had no songwriting credit... yet that's what it morphed into... and then stuck on songs going forward.

Perhaps the copyfraud achieved here created songwriting royalties that are now allowing the financing of this great digital jukebox... but it still makes me wonder just what the copyright setup will be of this jukebox. The folks behind it suggest that they'll be quite permissive, especially for non-profit usage, but it still makes you wonder about whether or not even that level of control is warranted.

Filed Under: alan lomax, copyright, culture, digital jukebox, folklorist, permission, recordings