Abbott & Costello Heirs Sue Play For Briefly Using 'Who's On First?' Routine

from the culture-lockup dept

Abbott & Costello's Who's on First? routine is one of the most well-known comedy bits of the 20th century. There are a bunch of different variations on it, and they often changed things around when they performed it. Here's one famous performance of it: Of course, the history of the skit is a bit complicated with plenty of examples of similar skits being performed long before Abbott & Costello did their version. In fact, Abbott himself performed a version of it with someone else before teaming up with Costello. There have also been different debates over who actually wrote it -- which isn't that surprising given how many different versions there were and how others had performed similar skits.

And of course, this is how a normal creative process works, with experimenting and adjustments until it reaches a level that's entertaining. People build on each other's work, and they share and then change things around. But, in a world of copyright, that gets tricky. Milton Berle once claimed that "Who's on First" was in the public domain and that everyone, including himself, used to perform versions of it.

And it gets even trickier the more you look, because it appears that some of the filmed versions are in the public domain allowing them to be shared anywhere.

But, of course, nowadays we live in a world where absolutely everything must be "owned" and the various heirs of Abbott & Costello insist that they own the rights to "Who's on First," and anyone who wants to do anything with it must license it from them first.

And thus, they are now suing the playwright and producers of a new popular Broadway play Hand to God that apparently includes a brief scene where one of the characters tries to impress another character by performing a version of Who's on First? with puppets.

In the lawsuit, they trace the somewhat circuitous path of the copyright itself. It was originally held by Universal Pictures Co. after the act appeared in Universal's One Night in the Tropics film in 1940, and then again in The Naughty Nineties in 1945. It notes that Abbott & Costello had a work for hire agreement with the studio, giving up all the rights to the act. Those copyrights have been renewed and extended thanks to changes in copyright law. However, in 1984 Universal transferred the copyright of just those scenes back to the heirs of Abbott & Costello. The heirs admit that the sound recordings did not have a federal copyright, but they do say that under NY state law, they have a "common law" copyright in the sound recordings -- and that's helped along by that recent ruling against Sirius XM concerning common law copyrights in NY.

Still, that raises a bunch of questions. While they may hold the copyright in those specific performances, given that the act was done way before that, do they really hold the copyright in the entire "Who's on First?" script? It seems like a very strong argument can be made that they do not.

On top of that, if there actually is a copyright claim here, it seems like the fair use defense is a fairly strong one as well.

According to the NY Times article:

The federal lawsuit, filed in the Southern District of New York, is claiming copyright infringement against the playwright Robert Askins, the producers and the promoters. The estate said cease-and-desist requests were sent after the play opened on Broadway in April, and it is seeking damages and lawyers’ fees.

“ ‘Hand to God’ is using ‘Who’s on First’ not just to get laughs from the audience but also to get people to buy tickets,” a lawyer for Abbott and Costello’s heirs, Marc Rachman, said in a statement.

This is, clearly, an attempt to end-run around a fair use defense, but I don't think it works. I don't know what that line even means about "not just to get laughs." No one is going to this play as a substitute for going to see Abbott & Costello perform the skit. People are going to the play because it's getting great reviews and is funny -- not because of the use of the skit, which is being performed not because of the inherent humor in the skit itself, but rather as a sort of cultural touchstone, referencing the famous skit. In the past, this would be what was known as an homage. Today, the lawyers and copyright maximalists call it infringement. But here, it seems pretty clear that it's transformative, as the use is for a very different purpose (and, of course, done in a different way, involving a hand puppet, which is key to the plot of the play).

Beyond that, the actual complaint seems to undermine their own argument:

The scene takes place only about fifteen minutes into the one hour and forty-five minute play, and is one of the lighter moments of the production, without which the much darker tone of the rest of the play would be very difficult for the audience to handle. It is this purely comedic scene featuring Who's On First?, conterbalanced with the more dramatic and serious themes of the play which are developed later on, that has allowed the play to garner both commercial success and wide audience appeal as a "dark comedy."

But, by saying that, they're basically admitting to the transformative nature here. It's not being used as Abbott & Costello intended, as a vaudevillian slapstick, but rather as a set piece in a much larger, much darker piece. Also, who the hell are they to claim that the play would be "very difficult for the audience to handle." How is that their position to say?

And the legal precedents don't look good for the heirs either. A couple years ago, we wrote about the play Jersey Boys winning its lawsuit, allowing it to use a clip from the Ed Sullivan show thanks to fair use, noting that the use of the clip was clearly not a "replacement" for the original. Same here. And, just a couple months ago, another off-Broadway play was victorious in arguing fair use in using the premise of the TV show Three's Company to create its own parody show. Thus, it seems that judges are recognizing that plays can make use of fair use to use elements of cultural touchstones in order to create their own enterntainment.

Either way, I'm sure plenty of lawyers will be able to bill tons of hours as this creates a huge legal mess, rather than just celebrating a moment of American cultural history.

Filed Under: abbott & costello, copyright, fair use, hand of god, who's on first

City Tries To Silence YouTube Critic By Suing For Copyright Infringement

from the taxpayer-money-at-work dept

This is a pretty stunning example of censorship by copyright -- from a literal government.

Joseph Teixeira is a critic of the mayor of Inglewood, California, James Butts. As is common among people with more than a passing interest in local politics, Teixeira takes clips of videos of city council meetings -- which are available on YouTube -- and posts them to YouTube, overlaying them with his own commentary and words. Teixeira, who goes by the name "Dehol Trouth" (get it?), runs a website called "Anybody But James Butts For Anything" and, when he's not caustically criticizing Mayor Butts, likes to make fun of the way he plays with his tie. Here's one of the videos:

Whether Teixeira's criticism has any merit, I don't know. He comes across as articulate and well-researched, lacking an "I attend every city council meeting to rant about chemtrails" feel. I do know this: it's awfully hard for a public official to sue for defamation.

But of course Mayor Butts isn't afraid of a few YouTube videos viewed by a couple hundred people -- people who probably don't even live in Inglewood and were just searching for a Snoop Dogg video. After all, Mayor Butts, won his last election by the largest margin in the city's history. So the best thing to do would be to ignore the guy, right?

Of course it would. But that's not what Mayor Butts and his fellow councilcritters did. Rather, they enlisted the resources of the city they govern to sue Teixeira for copyright infringement. Here's the complaint. In its path to censoring Teixeira, the City of Inglewood makes some pretty surprising false statements, on top of being completely and utterly wrong on the law.

Teixeira moved to dismiss the lawsuit with two arguments. First, he argues that the city can't even own a copyright because California law -- which requires the city to provide a copy of the video at only the cost of reproducing it to anyone who asks -- doesn't permit a city to hold a copyright in this kind of record. And that's what this is: a record of a city council meeting. Second, Teixeira argues that if there is a copyright interest, this is a classic fair use. After all, he's a citizen making fifteen-minute videos that include snippets of meetings that last up to four hours, and doing so to criticize his elected officials. On top of that, he's not getting any money for it. It's hard to think of a clearer example of fair use.

The City of Inglewood, represented by a seasoned IP litigation attorney who should really know better, responded with one of the most transparently-wrong briefings I've ever encountered -- and I read pro se ramblings as a hobby.

First, Inglewood argues that it can have a copyright interest because that case cited by Teixeira was argued by the same international law firm that represents Teixeira now, and something about the Supremacy Clause. Second, Inglewood states -- with a straight face -- that Teixeira's 15-minute videos appropriate the entire "work"... which is usually about four hours long. Worse, according to Inglewood, adding criticism over clips of these videos doesn't transform them from being what they were (boring bloody videos of city council meetings documenting people who probably wish they were playing Candy Crush, and would be if the meeting weren't on video) into something else, like pointed political criticism. Plus, Teixeira is somehow using the video for a "commercial" purpose, although Inglewood just sort of states this without any explanation whatsoever.

lol:

Defendant merely republished substantially all of Plaintiff's unaltered videotapes of its Council meetings, with Defendant's derogatory comments overlaid on top. This is not transformative in the least. [...] Transformativeness is not about a defendant's subjective intent; it is about 'add[ing] something new.'

A lawyer facing a poor set of facts might be forgiven for arguing nonsense, and this would perhaps not be as surprising if it had been left in its native format (crayon). But Inglewood's position goes from wrong to holy-crap-do-you-even-believe-what-you-are-writing-or-is-this-a-practical-joke-am-I-on-TV-hi-mom when it comes to identifying the real threat to free speech:

What is really going on here is that the Defendant wants to criticize the City without doing his own work. What he likes about infringing Plaintiff's copyright rights is simply that -- particularly with the Internet -- it is extremely easy, and essentially cost free. The Defendant takes the position that anyone who wants to criticize or comment on anyone else's work would be entitled to make a copy of it (and for free). A person could go into a bookstore, for example, and make a copy of an entire book (instead of buying it) because they do not just want to read it, they want to "comment" on it. If Defendant's argument is adopted, anyone could copy hundreds of books and articles so they could "comment" on them. Then they could scan this library of books and articles, and post them on the Internet with his "comments." To make his websites more appealing, he might also decide to "comment" on photographs, paintings, music, documentaries, and movies. Copyright law would be eviscerated if Defendant's argument is adopted.

The Defendant does not want copyright laws to be enforced. This would have as pernicious an effect on the First Amendment as anything imaginable. It would destroy long existing incentives to create and publish works of authorship in various media, including the Internet. [...] If authors cannot expect compensation for their creative works, they will stop creating them. Id. Not only does the First Amendment not compel this, to allow this would undermine the very First Amendment values that the Defendant so ardently claims he believes in. This would deprive authors of any economic incentive to speak. The result: less free speech, not more.

Yes, that's right: if the city can't enforce a copyright over videos it has to give away for only the cost of putting them onto a CD, the city won't have any economic incentive to record its own meetings, which it already distributes for free on the internet. That -- and not a government demanding that a citizen pay them money after insulting them -- is the real threat to free speech here.

The six videos have each been seen only about 300 times. To put this in perspective, it cost Inglewood taxpayers $400 just to file the lawsuit. Add in the $595 it cost the city to register the copyrights on these videos -- some of which date back to 2011 -- and that means this suit has cost about fifty-five cents for every time one of these videos has been viewed. And that's before attorneys' fees.

Let's reduce that ratio: here are the six videos. Give them a view:

• James Butts Accuses The City Clerk Of Lying About Election Fraud
• James T. Butts Jr Misleads the Public About His Voter Registration
• James T Butts Jr Alibi or apology
• James Butts exploits the murder of Fredrick Martin for his own political benefit
• Mayor James Butts Lies About Being a Hypocrite
• Mayor James T. Butts Jr Lies, Hiding Dangerous Traffic Problems After Forum Events

Perhaps someone should find out, exactly, how much this frivolous, thin-skinned lawsuit has cost Inglewood's taxpayers. I know just the man for the job. Or you could email Mayor Butts and ask him yourself. In any event, this lawsuit is enough to make one think that this Teixeira character might be on to something: these officials are not deserving of the votes of the people they represent.

Reposted from Adam Steinbaugh's blog.

Filed Under: censorship, commentary, copyright, dehol trouth, fair use, first amendment, free speech, inglewood, james butts, joseph teixeira

Book Publishers Whine To USTR That It's Just Not Fair That Canada Recognizes Fair Dealing For Educational Purposes

from the you-know,-like-US-law dept

A few years ago, Canada's Supreme Court made it clear that "fair dealing" should be applied broadly, especially in educational settings. Fair dealing, of course, is similar to fair use -- and, in the US, in theory, educational uses are also supposed to qualify for fair use. As Section 107 of the US Copyright Act states:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Thus, it seems like the Canadian interpretation is very much in line with the US's statutory view of fair use. Of course, over the years, in the US, publishers have repeatedly chipped away at fair use, such that now that Canada has moved to a position more akin to what the US's is supposed to be, those same publishers are absolutely flipping out. Last year, we noted that those US publishers submitted a recommendation to the USTR claiming that fair dealing in Canada was simply piracy. This was the publishers' submission to the USTR for consideration in preparing its annual Special 301 Report.

Apparently, this "fair dealing = piracy" argument didn't play well enough at the USTR and didn't make this year's Special 301 charade. So, the publishers are pissed. Or so reports a recent bit in Politico's Morning Trade (I'd link to the actual story, but Politico apparently doesn't believe in making it easy to permalink to its Morning Trade tidbits, so it's no longer there), where it notes they've asked the deputy USTR (and former BSA boss) to do something.

Deputy U.S. Trade Representative Robert Holleyman is traveling to New York today to attend the opening ceremony of BookExpo America, put on by the Association of American Publishers. The industry group is steamed over USTR’s failure in a recent report to confront what it regards as Canada’s overly broad copyright exception for educational purposes. “Active engagement by the U.S. and Canada to remedy the damage should not be put off any longer,” the AAP said.

Think about that for a second. Here are American publishers flat out complaining about Canada setting up its laws to help people get educated. Do these publishers think even in the slightest about the kind of message they're sending out? "Fuck educating children -- we want more money."

Filed Under: book publishers, canada, education, fair dealing, fair use, robert holleyman, ustr
Companies: association of american publishers

Suicide Girls Reappropriate Art That Appropriation Artist Richard Prince Appropriated -- At A 99.9% Discount

from the that's-how-it's-done dept

Yesterday, we wrote about appropriation artist Richard Prince and his slightly bizarre exhibit of other people's Instagram photos, with just the addition of a nonsensical Richard Prince comment -- and then selling them for $90,000 a pop. As we noted, Prince comes off like a complete jackass in almost every way here, but he doesn't care. In fact, his Twitter feed is like an art exhibit of not giving a single fuck -- retweeting or mocking many of the angry tweets coming his way, and joking about the $90,000 fees for the photos (saying that he thought it was twice that price).

In that post, we noted that one of those whose photos was used tried to "reappropriate" things by releasing a press release claiming that his artwork was being displayed in an exhibit "organized by" Prince. Some folks noticed that a bunch of the images Prince used were actually from the well-known Suicide Girls instagram feed. And now it appears that the Suicide Girls have hit back with their own bit of reappropriation as well -- selling versions of basically the same prints as Prince's for... $90, rather than $90,000. And, yes, the Suicide Girls reappropriation includes Richard Prince's nonsensical comments... but they also added one of their own: And, obviously, they don't have permission from Prince, but as they note:

Do we have Mr. Prince’s permission to sell these prints? We have the same permission from him that he had from us. ;)

Also, any profits are being donated to EFF, so that obviously rocks as well.

Again, there are interesting questions about fair use and transformative work here -- even if it's pretty widely agreed that Prince is being a total jackass about the whole thing. But, what's much more interesting than the copyright question is how people are responding to this. There's a social cost involved here. Prince doesn't care, because that social cost has no impact on his ability to sell ridiculous $90,000 prints to people who care more about "names" than art. But others are building off of the controversy and doing unique things to have an impact without having to resort to the "obvious path" of copyright law. This is a point that often gets lost in these discussions. Even if a copyright claim is a possible path, that doesn't mean it's the best path. It appears that many have recognized that there are better ways to deal with this than using the sledge hammer approach that copyright law provides.

Filed Under: appropriation art, copyright, fair use, instagram, richard prince, suicide girls
Companies: instagram

Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies

from the is-it-art? dept

You may recall over the past few years, our coverage of a key "fair use" lawsuit involving "appropriation artist" Richard Prince. That case involved Prince taking photos of various Rastafarians from a book by Patrick Cariou, and then adding a bit of stuff to the photos, declaring it art and profiting mightily. We were troubled by an initial ruling against Prince, which involved judges determining whether or not his work counted as "art." Thankfully an appeals court went the other way and the case then settled before any further review.

Prince is now making more news with his new gallery exhibit that appears to involve him screenshotting various selfies posted to Instagram, adding a "comment" to them, blowing them up and printing them out to put on a gallery wall. Then, you can buy them for around $100,000 a piece. And, no, Prince did not communicate with or get permission from anyone whose photos he is using. Here's just one example (as highlighted in the linked Fortune piece). An Instagram user named Doe Deere discovered that this selfie then appeared in Prince's latest showing:

A photo posted by Doe Deere (@doedeere) on Nov 1, 2014 at 10:06am PDT

And here's her post about the fact that her own picture had been displayed and then sold for ~$90,000.

Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it's just a screenshot (not a painting) of my original post. No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It's already sold ($90K I've been told) during the VIP preview. No, I'm not gonna go after him. And nope, I have no idea who ended up with it! 😳 #lifeisstrange #modernart #wannabuyaninstagrampicture

A photo posted by Doe Deere (@doedeere) on May 17, 2015 at 9:05am PDT

As you can see, Doe Deere says she's not going to sue. And at least one other Instagram user has said that he too won't sue -- even though he's clearly pissed off about it. Sean Fader, a struggling artist, noted that suing would actually play into Prince's own hands, making Prince "look like he’s thinking about rights in digital spaces, and that the work is questioning authorship in contemporary society." Instead, Fader has decided that if an appropriation artist is going to appropriate his work, he might as well appropriate it right back:

“I’m really interested in the idea of re-appropriating my own work and taking the work out of the frame that he’s put it in, re-engineering it to continue the conversation that I was interested in from the beginning, and shifting the work back to that space,” Fader said. “I struggled for a while to decide how I felt about it. When I went and saw it I was fuming. I would be psyched to be appropriated into work that was good. I just think the work is flat. It flattened the work in a way that I was not thrilled about its denial. By not communicating with me, by not talking to me, he denied every level of shared authorship, or engagement, all of those things that were so important to me in the work. That’s what irked me about the whole thing. So Prince made his move, now I’ll make mine.”

How'd he do that? By sending out a press release, telling people to visit his work in a new exhibit "organized" by Richard Prince.

So far it doesn't appear that anyone has sued him -- but some of the commentary on this is completely inane. The Washington Post had a totally clueless story suggesting that your Instagram photos aren't really yours.

Frankly, this does seem like a jackass move by Prince, but (no matter what Fader feels above) it does raise questions about "rights in digital spaces" and -- more particularly -- art. Part of the reason why Prince won his case over the Rastafarian photos was because his artwork was deemed transformative -- not in terms of how the artwork looked necessarily, but the context of the artwork itself. And that's definitely true here. Whether or not you think it's any good -- or whether or not you think that Prince is a jackass for the way he went about putting this work together -- it doesn't change the fact that he's the one attempting to take these Instagram photos and turn them into "high art."

In some ways, it reminds me of the differences between invention and innovation. Invention is coming up with something new. Innovation is making something that the world wants. Yes, the Instagram users who created these photos made the works -- but Prince made them such that people were willing to pay $90,000 for them. That is "transformative" in more ways than one -- even if you are reasonably perplexed by what kind of sucker might pay that money. The fact is that he convinced people to do so, and that's a form of innovation.

Would that be enough to survive an actual lawsuit should one arise? Perhaps not. Fair use cases are almost always a total crapshoot, and it's not hard to see how a jury and judges would stack up the four factors in a variety of ways that could lead to either result. But, it still seems worth considering what kind of loss has actually happened here? Yes, it feels slimy by Prince. And the fact that he's making $90k a pop for selling these images (without sharing those proceeds with the original photo creator certainly contributes to that really slimy feeling). But it's not as if any of these images on their own would be seen as worth that. It is -- for better or worse -- the fact that Prince chose to highlight them that suddenly made them worth so much money. That may not be "fair" -- but it might be fair use.

Filed Under: appropriation art, copyright, fair use, instagram, richard prince, selfies

Sony Uses Copyright To Force Verge To Takedown Its Copy Of Sony's Spotify Contract

from the censorship-through-copyright dept

Well, well. A few days ago, the Verge got a huge scoop in the form of Sony's original US contract with Spotify, leading to a ton of discussion (mostly focused around the huge "advances" that Spotify guaranteed Sony, and the related question of whether or not Sony actually passes those advances on to musicians). The debate raged on for a couple days, and late last night, Paul Resnikoff over at Digital Music News noticed something interesting: the original contract was now missing, and The Verge's own website claims it's due to a copyright threat from Sony: On Twitter, the Verge's editor-in-chief Nilay Patel admits that a threat from Sony forced the site to take down the contract. In fact, he claims that Sony actually sent four cease and desist letters claiming copyright infringement: Earlier this week, Resnikoff reported that Spotify was apparently putting pressure on publications not to report on the contract, including "dangling threats" to scare them off. However, Spotify would have no copyright argument here. As the Verge report (still) notes, the contract was "written by Sony Music," meaning that if there's any copyright claim (we'll get to that shortly), it's held by Sony Music.

And we all know damn well that Sony loves to throw around bogus copyright threats. Even we have received one concerning reporting on Sony Pictures' leaked emails. Sony has threatened lots of other publications as well, and even Twitter over such leaks. And, Resnikoff notes that Sony Music threatened his site for an April Fool's joke, pretending to reveal internal emails concerning Sony's equity stake in Spotify.

So here's the question: why did Vox (the owner of the Verge) cave? For a modern media operation, it must have lawyers that know the threat is bullshit.

Yes, it is possible to get a copyright over the contract, but it's likely to be a pretty thin copyright, because the amount of "creative" work in the contract is minimal. Much of the contract is likely boilerplate. But, more importantly, the Verge has a slam dunk fair use case here. They're providing commentary on the contract. It's a matter of public interest. They're not "selling" the contract and they're certainly not harming the "market" for the contract itself, of which there is none.

We actually dealt with this issue once before -- two years ago when Apple pulled the same bullshit move to pull down a contract that Resnikoff himself had posted on Digital Music News. Somewhat ironically, the first party to report on that... was the Verge! And in their report, they quoted law professor Eric Goldman noting the ridiculousness of it:

"It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public."

Sounds about right when applied to Sony in this case. Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.

Filed Under: censorship, contract, copyright, fair use
Companies: sony, spotify, the verge, vox

That Time Hitler Used Copyright Law To Block Future Senator Alan Cranston From Publishing Mein Kampf

from the wtf dept

We've written in the past about the somewhat bizarre copyright history of Adolf Hitler's infamous book Mein Kampf. The copyright is currently held by the state of Bavaria (which got it from the US government after the US seized the Nazis' publishing house at the end of World War II). Bavaria has used the copyright to bar the publication of the book in Germany for decades. However, in the past few months, extra attention has been paid to it because the copyright is set to expire at the end of the year, putting the book into the public domain in Germany.

But, apparently, that's not even the most interesting story about copyright and Hitler. David Post has a fascinating post about copyright as censorship, which starts out about the Katz v. Chevaldina case that we've written about in the past. It involved Ranaan Katz, the partial owner of the Miami Heat, who was upset about comments a blogger, Irina Chevaldina, was making about him on her blog. Katz went so far as to acquire the copyright on an "unflattering photo" that Chevaldina had used in a blog post mocking him and then sued Chevaldina (and Google, which hosted the blog on its Blogger platform, but was eventually dropped from the suit) for infringement. This was after Katz had tried and failed to sue Chevaldina for defamation. So, instead, he decided to use copyright law to censor her. It was a perfect example of what Matthew Schruers has shrewdly called copyright "immigration," where people who can't censor people through other laws turn to copyright as a last resort.

The amazing thing was that it actually worked at first. The court sided with Katz and issued a ridiculously broad injunction, raising questions about copyright misuse and (of course) the First Amendment. Eventually, though, the court got it right, noting that the use of the photo was clearly fair use. Katz, not getting the message, appealed his SLAPP suit, and it's now before the 11th Circuit, which will hopefully make quick work of it. If you want to read more about that, I highly recommend the EFF's amicus brief and its related blog post.

So... what the hell does all of that have to do with Hitler?

Well, in that article by David Post, he points out that there's actually a fairly long history of people using copyright for censorship -- and it turns out that none other than Adolf Hitler apparently liked to use copyright this way (yes, this post is pre-Godwin'd -- deal with it). And, to make this even stranger, apparently Hitler used that copyright-as-censorship/copyright immigration plan against then-news reporter/future Senator Alan Cranston. Cranston himself explained what happened in an interview:

While I was doing my foreign correspondence work, I read Adolph Hitler's Mein Kampf, the book he wrote while he was in prison before he became the dictator, outlining his plans for Germany and the terrible things he intended to do in the world. There was no English language version of it. When I quit journalism and came back to try to get involved in activities in the United States, one day in Macy's bookstore in New York I saw a display of Mein Kampf, an English language version, which I'd never seen before, which hadn't existed. I went over to look at it out of curiosity and as I picked it up, I knew it wasn't the real book. It was much thinner than the long book that I had read, which is about 350,000 words. So I bought it to see how come. And delving into it I found that it was a condensed version, and some of the things that would most upset Americans just weren't there as they were in the version I had read, the original, in German.

So I talked to an editor friend of mine in New York, a Hearst editor named Amster Spiro, and suggested that I write and we publish an anti-Nazi version of Mein Kampf that would be the real book and would awaken Americans to the peril Hitler posed for us and the rest of the world. So we did that. I spent eight days [compiling] my version of Mein Kampf from the English language version that I now had, the original German language version, and another copy that had just appeared. A book was then selling for around three dollars normal price. Hitler was getting forty cents royalty for each copy that somebody bought that wasn't [even] the real thing. We proceeded to print in tabloid the version that I wrote, with a very lurid red cover showing Hitler carving up the world, and we sold it for ten cents on newsstands. It created quite a stir. Some Nazis went around knocking down newsstands that displayed it in St. Louis and the German part of New York and elsewhere in the country. We sold half a million copies in ten days and were immediately sued by Hitler's agents on the grounds we had violated his copyright, which we had done. We had the theory that [though] he had copyrighted Mein Kampf in Austria, he had destroyed Austria with his army, so we said he destroyed his copyright at the same time. Well, that didn't stand up in court, and a Connecticut judge ruled in Hitler's favor. No damages were assessed, but we had to stop selling the book. We got what was called an injunction. But we did wake up a lot of Americans to the Nazi threat.

If you're interested, the case is Houghton Mifflin v. Stackpole Sons, and it's an interesting read. The issues are certainly a bit different, but it does show that Hitler and his publishers looked to actively prevent Americans from knowing the full extent of his views... using copyright law. As Post notes:

It was not copyright law’s finest hour – its Korematsu, one is tempted to say. Hitler gets to continue to receive royalties, and to control publication of his book, 10 weeks before he marches into Poland and war breaks out in Europe. The defendant doesn’t seem to have raised “fair use” as a defense in the case, relying instead entirely on a theory that because Adolf Hitler was a “stateless person”, any assignment of his copyright rights was invalid....

It’s hard to know whether there’s something noble about a US federal court going through the arcana of international copyright jurisprudence in order to give Hitler – even Hitler! – his day in court, or appalling that it would allow copyright law to be mis-used in a matter of such crucial public importance.

So, now, next time you feel like Godwin'ing any conversation on copyright-as-censorship, feel free to just declare "that's like something the Nazis would do!" and point to this story.

Filed Under: adolf hitler, alan cranston, censorship, copyright, fair use, irina chevaldina, mein kampf, ranaan katz

Faith Healer Adam Miller Sues Over Critical YouTube Video, Guaranteeing It Tons Of Attention

from the can-you-heal-not-understanding-the-law? dept

Oh boy. Today in Streisanding, we've got a lawsuit filed by Adam Miller, a faith healer, against Stephanie Guttormson, supposedly over claims of copyright infringement and defamation, though neither claim holds up under much scrutiny. Instead, this looks like a typical SLAPP suit, in which Miller is upset about a video that mocks him and his faith healing and decides to sue over it. Enter Stresiand Effect. The video is currently up, and the view count is rapidly escalating. At the time the lawsuit was filed (according to the lawsuit) it had about 1,500 views. Now it's much more: There's nothing too surprising in the video, but it basically uses one of Miller's own promotional videos and intersperses some commentary and criticism. The lawsuit... is... well... a joke. First, he claims copyright infringement, though this is pretty obviously fair use. It's being used for criticism and commentary, and in order to make that work, it needs to show clips of the video. Miller's lawyer tries, weakly, to present a few arguments to try to get around fair use, including arguing that it's commercial use. Of course, as we keep repeating, commercial use does not mean that you can't have fair use. Tons of fair use involves commercial use. And, even given that, it's ridiculous to argue that this is "commercial use." The best the lawsuit can do is claim that the inclusion at the end of the video of a couple of "advertisements" makes it commercial. That, alone, probably isn't even enough to claim this is "commercial use," (which is generally more about selling the actual work or directly profiting). Plus, it's not even accurate. The "advertisements" aren't really advertisements at all, but rather a friendly acknowledgement of who sent her the video, with a link to that guy's own website and audio bookstore, with a mention that Guttormson appears on that guy's podcast every so often.

The lawsuit also claims too much of the original video was used, but there's little evidence to support that. Guttormson comments on basically every clip in the video, so it's hard to see how she's using "more of the original work than was necessary" as the lawsuit claims.

The lawsuit also alleges, as part of the copyright claim, that "Guttormson is liable for the actual harm caused to Mr. Miller as a result of Guttormson’s infringement and statutory damages." That's an interesting claim, but completely bullshit in the copyright context. The "actual harm" has to be over the copyright. Unless there was "actual harm" in Miller no longer being able to license/sell that video to a third party because they felt they could see it all for free through Guttormson's video (a crazy claim), then there's no actual harm. If the commentary in Guttormson's video, which mocks Miller's wacky faith healing nonsense, created "actual harm," well, that's not a copyright issue and is unrelated to any copyright claim.

The lawsuit also makes some claims about how the video itself was never actually released, but rather was password protected in Miller's wife's account. So the lawsuit alleges that Guttormson must have "hacked" into Eve Miller's account. In the video itself, however, as mentioned above, Guttormson notes that it was actually David Smalley who sent her the video. And while it's not entirely clear, from the comment threads under the video, it certainly sounds like Miller's video was most likely publicly available somewhere online. The evidence of "hacking" here seems really weak. And if there was hacking, the evidence that it was Guttormson is non-existent.

As for the defamation claims... there are only two specific things called out in the lawsuit. The first is this:

As just one example, Guttormson explains what happens at an appointment with Mr. Miller, “You will be fed faith-based bullshit.” This statement is false and defamatory; Mr. Miller’s work does not require a client to hold any faith, and he has worked with non-believers and atheists.

Um. Okay, it appears that Miller's lawyer is misrepresenting what "faith-based" means in this context. Guttormson isn't saying that those seeing Miller are expected to "have faith in a certain religion." She's saying that the treatment by Miller is not evidence based but is based on someone's blind "faith" in Miller being able to actually do something. And, besides, Miller's own words show that he's pitching a bunch of faith-based quackery. In the video clip, he himself explains the process, noting talking first about how he talks to people who come to them about things that happened in their childhood, like "traumas" that might explain their illnesses (really) and then says:

And then after we get through this, we put them on the table, and great holy spirit comes and breaks up dark cellular structure that creates any illness. Because I believe that illnesses are of a dark path.

That's like the definition of "faith-based" right there.

The other "defamation" claim is about the title of the video, which refers to Miller as a "con man." For the most part, courts don't consider phrases like that defamatory though (there are some exceptions, but it very much depends on context and if they're alleging a very specific thing, rather than a general insult). The link there is from Perle & Williams on Publishing Law and notes:

As Dean Prosser observed, "[A] certain amount of vulgar name-calling is tolerated on the theory that it will necessarily be understood to amount to nothing more." Thus, "communism" is too amorphous a characterization to be actionable, as is the term "grifter." The term "crook" has been held by one court to be a word of general disparagement rather than an allegation of specific criminal conduct, and thus was not slander; a restaurant critic's remark that a restaurateur was a "pig" and a television news editorial that referred to a chiropractor as a "quack" and a "cancer con artist" were held to be expressions of opinion; the words "those bastards" were held "mere epithets... as terms of abuse and opprobrium" and as such were not actionable for defamation; referring to a judge as "incompetent," "arrogant," "biased," and "one of the 10 worst judges in New York" was not held to be defamatory; calling a stockholder a "silly, stupid, senile bum" was not held to be slanderous; referring to Carl Sagan as a "butt-head astronomer" was held not libelous; and referring to a masonry contractor as a "shithead" was held not actionable....

In short, the likelihood that calling Miller a "con artist" is "defamation," let alone "defamation per se" as the lawsuit alleges, is... quite unlikely.

Even more to the point, this was a video that almost no one had seen. And now, because of this lawsuit, not only are tons more people checking it out, even more people will start investigating Adam Miller and the claims he makes about his "healing" services. Miller's website has gone down, but a quick look through the internet archive shows that it's chock-full of quackery (note to Miller's lawyer: that's not defamatory, so buzz off):

What this healing work is...

The Great and Holy Beings, such as Mother Mary, Jesus, Buddha, Quan Yin, Saint Germain, Archangel Michael and many others come into a person's body and transmute with light every single cell and raise the vibratory rate. In other words, diseases or injuries in the body have a very low, darkened vibration and when a Holy Being works with any person it changes the cellular structure permanently and the issue that is being worked on will never come back. This work is permanent. It is important to understand that Adam Miller is not a conduit, or psychic or related to any other work on the planet. This work is a result of Adam's death experience. Adam Miller would never claim to do this work himself. It is done by Holy Beings only.

So, uh, yeah. And he's the one claiming that "faith-based bullshit" is defamatory? Yikes.

Meanwhile, before filing the lawsuit, it appears that Miller posted another video announcing his response to the video above. In it he notes that a lawsuit is being prepared. But he also has a bunch of his "happy clients" give testimonials or complain about Guttormson, claiming that what she said was, like, really mean and "unprofessional." If Miller had merely posted his response including such testimonials, that would be perfectly fine. You deal with speech you dislike with more speech. But suing someone with bogus claims of defamation and copyright infringement? When you're spewing quackery? Not only is that going to flop in court, it's just going to lead a lot of people to examine what you're selling yourself...

Filed Under: adam miller, anti-slapp, copyright, criticism, defamation, eve miller, fair use, faith healer, free speech, healer, holy spirit, opinion, slapp suit, stephanie guttormson, streisand effect

Fair Use At Risk When Private Companies Get To Make The Decision For Us

from the fair-use-in-the-age-of-the-cloud dept

We talk a lot about how fair use is under attack these days, and I've discussed in the past my concerns about freedom of expression when we always have a company (or a few companies) standing in the middle of our decisions on whether or not we can speak. NiemanLabs has a great example of where this becomes problematic in a story about how SoundCloud will not even consider fair use in making decisions about whether or not to take down content, and how that's harming journalism:

Here’s a wakeup call to audio creators everywhere: SoundCloud does not recognize your fair use rights under U.S. copyright law. If your content contains any copyrighted material to which you haven’t secured the rights — even if you have a valid fair use claim — SoundCloud may take it down at any time.

That’s exactly what happened to a former student of mine, and his experience should serve as a warning to the growing number of news organizations (including several that I work with) that use SoundCloud to host podcasts and other audio content.

Journalism as we know it could not exist without fair use, so it’s possible SoundCloud may not be a viable tool for the field. Imagine trying to do a story about the “Blurred Lines” lawsuit without playing copyrighted clips from the songs involved.

The article goes on to discuss an interesting journalism project that used a very brief clip of copyrighted music in a way that almost certainly was fair use. SoundCloud took it down. When pressed on this, the company eventually admitted that it refuses to take fair use into account, in part because fair use is only in the US:

We understand that US copyright law includes a doctrine of fair use. However, these rules are limited, difficult to apply outside of a court of law, and in any event do not necessarily apply outside of the United States. As SoundCloud is a global platform, we expect all of our creators to respect copyright law, and the rights of copyright owners, on a global basis.

As the writer of the article, Adam Ragusea, points out, this should be a major concern for any journalists using Soundcloud. And that includes us at Techdirt -- as we use SoundCloud to host our podcast. But the fact that the company might not even allow us to make use of our fair use rights -- the same rights that the Supreme Court has said are essential for protecting the First Amendment -- is a major concern, and one that has me thinking we should be looking for other platforms.

But, even then, we would most likely face the exact same situation. Any other platform will be under pressure from any sort of DMCA notice system as well. And while they could stand up for their users, many don't want to take on the liability risk. And thus, we run a serious risk of losing a key component of free expression.

And, honestly, the problem is only partially the companies like SoundCloud. The entire legal system is designed to make this sort of response the only real choice they have. With fair use being only truly available in a few countries, it's difficult to operate a global platform. This is why if we're going to put copyright into international trade agreements fair use needs to be included, otherwise we risk losing it back here in the US as well. But when you combine that situation with copyright law in which statutory damages are insane, and where the DMCA requires you to shoot first and ask questions later, it is way too easy for companies like SoundCloud to just throw up their hands and say this isn't worth dealing with.

Even companies that do try to take fair use into account -- like YouTube -- all too frequently fail to do a good job of considering fair use, leading to perfectly legitimate content disappearing, with no real recourse for the creators. This is why, beyond fair use, it seems like we need much stronger safe harbors for intermediaries like SoundCloud. It works with Section 230 of the CDA, in which the rule is pretty ironclad: the service provider should never be seen as legally liable for the content its users create. For fair use to thrive, copyright law requires a similarly ironclad safe harbor. This doesn't -- as some will inevitably claim -- mean that there is no recourse over infringement. There absolutely is. The copyright holder still has every right to target the actual end user, and that person can then stand up for their own fair use rights, which is only proper.

But under the current system, end users don't even have the chance to stand up for their own fair use/free speech rights, because third-party platforms like SoundCloud get to make the final decision for them -- and with all of the liability incentives stacked against them, free speech doesn't have a chance.

Filed Under: copyright, fair use, freedom of expression, journalism, private companies, safe harbors, third parties
Companies: soundcloud, youtube

If You're Promoting Copyright Without Fair Use, You're Promoting Out And Out Censorship

from the let's-be-clear-on-this dept

A couple of weeks ago, we wrote about how the Sony email hack revealed the MPAA's true position on "fair use," which was that it was "extremely controversial," and the MPAA didn't want it included in various trade agreements. It was amazing to see some in our comments and on Twitter attack this concept, by arguing that "fair use" is really some sort of nutty code word for "piracy." Others, bizarrely, argued that pushing for fair use was some sort of "cultural imperialism" (as opposed to extending copyright and patent maximalism, which apparently has nothing to do with such cultural imperialism...).

Geoffrey Manne jumped in with a (only slightly) less ridiculous critique, trotting out the usual talking points of copyright maximalists on why we can't have fair use in trade agreements (even if we can and do have extending copyright terms, enhancing copyright penalties, intermediary liability, and a variety of other things included in those agreements). First, he goes with the whole "fair use is piracy" ridiculousness:

Including such language in TPA would require U.S. negotiators to demand that trading partners enact U.S.-style fair use language. But as ICLE discussed in a recent White Paper, if broad, U.S.-style fair use exceptions are infused into trade agreements they could actually increase piracy and discourage artistic creation and innovation — particularly in nations without a strong legal tradition implementing such provisions.

This, frankly, is hogwash. There is no indication in any manner whatsoever that having fair use discourages artistic creation and innovation. That's simply ridiculous on its face. After all, the US currently does have one of the most permissive fair use systems (although it's still way too limited), and it's difficult to find anyone arguing that they're not creating because of all that fair use breaking out. Instead, we're in the golden age of creative content, with more people creating more content than ever before. The idea that fair use would suddenly scare people away from making content is so laughable that it really takes away any credibility Manne might have on the issue.

Next, he argues that because of the TRIPs agreement, we already have fair use in our trade agreement, known as the "three step test." And, indeed, as we discussed back in 2012, the USTR, for the first time, did agree to include a reference to the "three step test" in the TPP. But (and this is the important part), the three step test is not about including fair use, or mandating or recommending fair use, rather it is entirely about limiting fair use. That's why the three step test opens with how members are limited in how they can implement fair use rights:

Members shall confine limitations or exceptions to exclusive rights to

1. certain special cases, which
2. do not conflict with a normal exploitation of the work and
3. do not unreasonably prejudice the legitimate interests of the right holder.

That's not fair use by any stretch of the imagination. That's seeking to keep fair use to a minimum.

The next point is a really common one -- that was used to block fair use in the UK (and was also brought up in Australia when that country moved towards fair use last year) -- saying that because fair use in the US relies heavily on common law/case law, it's basically impossible to implement anywhere else. However, as Matt Schruers explains in a wonderful blog post over at the Disruptive Competition Project, that makes no sense at all:

Another argument that Manne offers against encouraging balanced copyright abroad is that civil law countries cannot interpret principles like Section 107-style fair use, which are informed by common law. Legal scholars may disagree (see n.25), pointing out that civil law countries are perfectly capable of, and often do consult prior case law, not for precedent, but for its interpretive value.

In fact, civil law countries have long wrestled successfully with open-ended principles in international agreements. For example, copyright’s idea/expression dichotomy is similarly developed by common law, and yet we’ve inserted that into the TRIPS Agreement and the WIPO Copyright Treaty, both of which have numerous civil law signatories. If inserting principles interpreted through common law into trade agreements would cause the international IP system to grind to a halt, it would have happened twenty years ago.

The condescension towards the idea that countries can't figure out their own ways to apply fair use is really ridiculous. The US figured it out, and other countries can as well, even if they're civil law countries.

Schruers, in his post, takes on another ridiculous attack on putting fair use in trade agreements, this one proffered by Justin Hughes, who has been instrumental in trying to convince the government not to include fair use in trade agreements. In that argument, Hughes says that if fair use supporters really believe it gives an advantage to innovation, then we shouldn't want to export it in a trade agreement, because it's giving us an advantage:

If one believes that the fair use doctrine has been a central element in the innovation environment that has made Silicon Valley wildly successful, why would we want to promote other countries adopting a policy that, by this account, is a competitive advantage?

But, uh, doesn't that strike at the rationale for any and every free trade deal? For people who believe in free trade, we should want to export the tools that lead to greater innovation because it makes the overall pie much larger. Hughes' argument is one against free trade, and he's bizarrely pushing it as a reason for why we should include this blatantly protectionist idea, by keeping it out of a supposed "free trade" agreement. The mind boggles.

But, really, what it all comes down to is this: the Supreme Court itself has repeatedly said that fair use is the "safety valve" that makes copyright law compatible with the First Amendment. Without it, copyright law would be illegal. Many of us, of course, believe that the valve is screwed way too tightly, and that it needs to be loosened, since free expression is regularly stymied by abusing current copyright law. But, either way, it should be clear that fair use is, without a doubt, a key element in any copyright regime. Without it, you have undermined free expression and enabled out and out censorship.

If the US is really trying to export its ideals in agreements like the TPP (and yes, the answer here may be that we are not), then it must include a mandate for fair use if it is going to include a mandate for copyright. The two have to go hand in hand, or you are advocating for out and out censorship.

Filed Under: censorship, copyright, fair use, free speech, geoffrey manne, justin hughes, matt schruers, tpp, trade agreements