Dan Bull's 'Death To ACTA' Video Silenced After Claim From Rapper Who Used The Same Sample

from the wait,-what-now? dept

Back in 2010 we wrote about rapper Dan Bull's excellent "Death to ACTA" song and video, which is a parody of Jay-Z's "Death of Autotune." In 2011, we further wrote about the MP3 of that song (which Bull distributes willingly on file sharing platforms) being taken down from Mediafire due to a questionable takedown request. Now, years later (well after ACTA is pretty much long dead), Dan's discovered that his video on YouTube was just silenced due to copyright claims. He wondered what it was about and discovered two claims on the video -- one being ridiculous, with the other being merely questionable. The ridiculous one is the claim about Bigg Brass's song, "Death of Fake Rapperz". That one, like Dan's, uses the backing track from Jay-Z's "Death of Autotune." The actual track that Jay-Z sampled is "In the Space" by Janko Nilovic and Dave Sarkys. It's likely that Jay-Z licensed that track (though he's run into legal trouble at times for failing to license some tracks). If anyone would have a claim over Bull's track then, it would likely be those guys. Here, it appears that Bigg Brass is working with the big digital distributor, The Orchard, who didn't even bother to figure out that Bigg Brass was using a sample of his own and just went hog wild stupidly going after others' music. The Universal Music Group claim is slightly more reasonable, but only slightly. Again, the actual music is not Jay-Z's but Nilovic's and Sarkys' and they don't appear to be the ones complaining.

At the same time Jay-Z has been quite public about his support for artists remixing his tracks into other songs saying that he's "honored" when it's done. It may be that Jay-Z doesn't hold the copyright for DoA, but even so... it seems like a pretty weak claim to go after Dan Bull. And, of course, you can find a ton of other videos that use the same backing track for their own songs. Here's one. And another. And another. And another. And another. And another. And another. And another. And there are a lot more. I'm just getting tired of cutting and pasting.

And none of those other ones are silenced.

Just Dan's. It almost makes you wonder if Universal Music has... a political reason for trying to silence Dan's songs, such as the fact that it mocks an international agreement that the recording industry was highly supportive of. And they say copyright isn't used to censor free speech...

Filed Under: acta, bigg brass, contentid, dan bull, death of autotune, fair use, jay-z, samples, videos, youtube
Companies: youtube

Designer Still Pursuing Bogus Takedown Of Periodic Table Of HTML Elements; Has No Idea How Copyright Works

from the Australia:-land-of-IP-thieves,-pop.-2 dept

Very recently, we covered designer Alara Mills' wholly misguided takedown efforts against Mike Riethmuller, a coder who crafted a periodic table of HTML 5 elements that she claimed looked like hers. Here's Riethmuller's:

Which was inspired by Josh Duck's earlier effort:


Neither of which look like the HTML 5 table Alara Mills sells:


But she claims Duck's (and consequently, Riethmuller's) infringes on this earlier version, which was the subject of a lawsuit she brought against Duck.


The suit was dismissed. Duck settled rather than fight Mills' baseless claims, which included the unsupported accusation that somehow Duck had intercepted her original version -- which she had emailed to someone else entirely -- and used that to craft his version. From the cease-and-desist order, in which her lawyers don't sound too sure about the theory their client is pushing:

Ms. Mills submitted an earlier version of her chart within a book prospectus to a publisher in July 29, 2010, a copy of which is enclosed. This is the version that was possibly leaked to you in creation of your Periodic Table.

Using this "win" (she voluntarily dismissed the suit with prejudice), she's now pursuing Riethmuller over his Duck-inspired version -- not because it looks like her current version, but because it looks like the unreleased version Duck supposedly infringed on.

When I wrapped up the last post, I noted that Mills had apologized to Riethmuller and withdrawn her legal threats. Apparently, that move was just PR-related. Mills had no intention of dropping her baseless claims against Riethmuller. The same night that post went live (with the final "good news" added to it), she reversed course. Mills has filed a followup complaint to Github in hopes of expediting the removal of Riethmuller's HTML 5 table.

Here's her original takedown request, which spends as much time on claims of "owning" common elements like Mendeleev's periodic table design and coding constants as it does espousing conspiracy theories and mangling IP terminology. [Interrupted periodically for commentary.]

I, Alara Mills, have read and understand GitHub's Guide to Filing a DMCA Notice.

1.     Identify the copyrighted work you believe has been infringed.
The copyrighted work I believe is infringed is my copyright in the 2-D artwork titled “The HTML Table of Elements.” The copyright is registered with the United States Copyright Office with an effective date of registration of January 27, 2010 and registration number VAu 1-014-116. “The HTML Table of Elements” is my original, United States copyrighted artwork. It is an original work inspired by the Periodic Table of Elements from chemistry that I first sketched out on paper December 25, 2009. The HTML Elements within my chart are placed in my own unique categories. It is this unique ordering that took it out of fair use and thereby made it eligible for copyright. (Author's unique ordering of HTML5 Elements within their literary books is also what makes them unique for copyright.)

[You can't take something "out" of fair use. Fair use is a defense. She may have meant "public domain," but even if so, she's still completely wrong. You can make use of public domain elements, but what you can't do is "remove" them so that no one else can do the same. But that's what she's claiming.]

2. Identify the material that you allege is infringing the copyrighted work listed in item #1, above.
The material I am alleging is infringing the copyrighted work is hosted at the following URL: http://madebymike.com.au/html5-periodic-table/

My HTML Elements and Attributes Infographic has evolved into a proprietary graphic with various derivative works. The one in question is an earlier derivative work which was submitted within a book prospectus submitted to publishers as early as May 2010. This version was leaked to Joshua Duck, who then made an unauthorized derivative work of my original work and hosted it at http://joshduck.com/periodic-table.html.

[Word salad. First, this still assumes that these are "derivative" from her works, when there's very little evidence to support that. And, remember, the only control Mills has is on derivative works of the parts of the original that was actually protectable by copyright. And there's almost nothing in the original that is protectable -- and what little there is does not appear to be carried over into Duck's or Riethmuller's design. And, of course, this argument rests on the still-unsubstantiated claim that Duck had access to her earlier versions and used that as the basis for his table.]

I filed a lawsuit against Joshua Duck March 2014 and the matter was settled out of court with Joshua Duck agreeing to removing the infringing content and not to use it again (Settlement agreement is attached). However, I have discovered that Michael Riethmuller has recreated another unauthorized derivative work which is an exact recreation of Josh Duck's work, which is also an unauthorized derivative work which infringed on my copyrighted work.

[It's not an "exact" recreation. It's significantly different and it's inspired by Duck's version, rather than being a ripoff of a ripoff of Mills' questionable "original."]

3.     Explain what the affected user would need to do in order to remedy the infringement
I recently emailed Michael Riethmuller to express my concerns and asked him to please change the credit language he is attributing to Josh Duck on his sites page. I am willing to allow Michael Riethmueller to keep the derivative work IF he is willing to update the credit language to state me as the true and rightful owner of the work.

[The only person who believes you're the "rightful owner" of common coding elements arrayed on a remix of Mendeleev's periodic table is YOU, Ms. Mills.]

He has not responded, which makes me allege that Josh Duck is somehow behind Michael Riethmuller recreation of his work, to add injury to insult. Additionally, both parties are coincidentally from Australia, though Josh Duck now resides in Northern California and is employed at Facebook. If Michael is unwilling to make this change in credit of the work, then I want to request for it to be completely taken down.

[The world according to Mills: Australia is a continent inhabited solely by Riethmuller and Duck, who have both conspired to screw Mills out of some poster sales. This bizarre theory helps explain why Mills can't be dissuaded of her notion that Duck somehow intercepted her earlier, unpublished chart. The world -- well, at least Australia -- has it in for Mills and will stop at nothing to steal her HTML 5 table.]

I also want to challenge Michael Riethmuller's threat that he will simply send a counter to my take down request on the bases of fair-use. Though the periodic table is fair-use and the HTML5 elements categorized by the W3.org is fair-use, my unique effort in categorizing and placement of the HTML5 elements within my chart made it eligible for U. S. copyright. Josh Duck copied my work without permission and with the false assumption that it was not copyrighted and thus he did not apply any real originality to his version, using the exact same color choices and placement of the elements within his chart making them jarringly similar. It is for this reason that I am asking Michael Riethmuller to either give appropriate credit to me at the true author of his "inspired" work, or take it down.

[Nice. A preemptive strike against fair use. The best offense is a good offense, I guess. As for the rest, anyone with eyes can see Duck's version does not use the "exact same color choices and placement of elements." And this has to be the first recorded use of the phrase "jarringly similar." Click through for the full-size version.]


The original takedown request is thoroughly ridiculous. As is Mills herself, who keeps finding conspiracies where none exist and doesn't seem to have even a basic understanding of fair use, idea vs. expression, derivative works or even that her chart she claims Duck copied exactly only very faintly resembles her version.

So, she told Riethmuller she'd drop all of this and let it go. That was the evening after the post went live. The next day, Riethmuller emailed me Mills' revived effort to have his table kicked off of Github.

Dear Github Support,

I am emailing to follow-up on the status of my DMCA notice. As per my last communication with Michael Riethmueller, I requested that he please place an appropriate credit to me as the original author of the work instead of taking down the work all together.

There is no mistake as to my copyrighted work being a protected work that does not fall under fair-use.

[This again. FAIR USE DOES NOT WORK THAT WAY. You can't exempt your copyrighted material from fair use. It either is or it isn't, but you can't somehow get out ahead of it just by declaring your work not open to fair use.]

I added enough originality to the expression of this art work by placing the HTML5 elements in my own unique order different from the World Wide Web Consortium's categorization of the HTML elements. This is the same copyright protect that is granted to all other authors of HTML5 literary books: they all came up with their own unique listing of the HTML elements within their works.

[So what? Just like all these authors used the same common elements to create protect-able creations, so did Mills. And Duck. And Riethmuller. It is completely possible for all of these to exist without infringing on each other and for every single one to be protected by copyright. Mills cannot seem to wrap her mind around this concept.]

The work that Michael Riethmueller is using is a modified version of Josh Duck's unauthorized version of my original art work. Josh Duck was under the false assumption that my work was not copyrighted and therefore copied my exact color scheme and placement of the HTML elements making the works too similar.

["Too similar?" It isn't. It's only as "similar" as the elements behind it force it to be (Mendeleev's periodic table design; the semi-rigid hierarchy of coding elements).]

I don't think it is unreasonable for me to request that Michael Riethmueller's work be credited appropriately to me to avoid additional unauthorized use of his work. Again, if Mr. Riethmueller is unwilling to update the author credit, I do want to request to have the work taken down.

[Riethmuller won't credit her because he never saw Mills' version. He may have seen Duck's version and his more closely bears resemblance to Duck's than to Mills', but either way none of these charts bear enough resemblance to each other to make one of them infringing. Riethmuller owes Mills nothing in the way of "credit." She had no part of this. She only thinks she does because she registered her version back in 2010 and now feels other versions are somehow infringing on her creation.]

Given Michael Riethmueller's refusal to credit the work to me as the rightful owner, I am also alleging that Josh Duck is somehow very much behind Michael's recreated work as a form of retaliation for my rightfully filing a lawsuit against him which was settled out of court at Josh Duck's explicit request.

[More conspiracy theories. Nothing factual alleged here and veering very close to being defamatory. This argument is about as worthless as her decision to play the sexism card during my earlier Twitter conversation with her. (If you're planning on chatting with her, get screenshots. She likes to delete tweets.]


So, Mills has learned nothing other than how to give the appearance that she's learned something. She's continuing to push Riethmuller to give her credit she doesn't deserve (and which is not a part of copyright law anyway) and she has clearly shown she doesn't understand the first thing about fair use, derivative works or that the underlying elements of "her" HTML 5 periodic table can be remixed in a number of highly-similar ways without infringing on her "original."

From where I sit, there just aren't enough periodic tables of HTML 5 elements and that situation should be remedied, although I would ask any Australians to refrain from participating unless they already know everyone else who lives on their continent.

Filed Under: alara mills, copyright, fair use, html 5, josh duck, mike riethmuller, periodic table, public domain

Clueless Publicist Doubles Down On Claiming Fair Use Has 'Expired' On Walter Scott Video; Brags About Profiting From Police Killing

from the that's-not-how-the-law-works-at-all dept

Last week, we wrote about how the bystander who shot the video of police officer Michael Slager shooting and killing Walter Scott had apparently brought on a publicist, Max Markson, who was demanding that the media start paying for the video. As we noted, this situation was classic fair use, and the reasoning made by the publicist made no sense. He argued that fair use only lasted for a little while, and then later, in an interview with Buzzfeed, talked about how they were charging a "fair usage fee." As we pointed out, this was idiotic -- and we focused most of the scorn on the NY Times for idiotically repeating these claims and claiming that "copyright experts agreed" that they had a point. That's flat out wrong. Sarah Jeong wrote a great piece for Forbes, quoting a bunch of copyright experts insisting that Markson's interpretation of copyright law is laughably wrong.

Markson has been doubling down on his ignorant position. He and I had a brief Twitter exchange in which he refused to actually answer the questions I raised (mainly where in copyright law is there such a thing as a "fair usage fee") and rather insisted that he's obviously legally right because he claims that some (apparently totally clueless) news organizations have paid up*. He's also coming up with ever more ignorant statements about fair use. Here he is, for example, in the Guardian making even more ridiculously wrong claims about fair use. If you know anything about copyright law, the following should leave you sputtering in disbelief:

“Any footage has to be owned by somebody. It’s not like it’s in the public domain. If the Guardian, or any media organisation, sends a cameraman to get some footage, then they own it, and it’s the same in this case.”

He claimed that still images taken from the video would also incur a retrospective fee and this would apply regardless of when they had been printed or posted online.

“Fair use doesn’t really apply to images,” he said. “There’s a fair use argument on the video, but there’s a very clear copyright on the use of the photographs.”

The level of pure ignorance here on copyright law is somewhat astounding for someone who is trying to enforce copyright. First off, he seems to think fair use means "in the public domain." It does not. Things in the public domain don't need fair use. Fair use applies to works covered by copyright and means you can use it without a license for that particular use. That's why there is no such thing as a "fair usage fee." Second, the idea that "fair use doesn't really apply to images" is so ludicrous that a simple Google search would have taught him that. Or, hell, some of the most famous cases about fair use involve cases about images. This isn't even remotely arguable. Markson is going around spewing pure ignorance as copyright law -- and using it to shake down companies.

And he is sending out actual demands. The Guardian got one and wrote about it. As expected, the demand letter includes more insanely wrong claims about fair use:

The period of Fair Use of this footage has now expired and all further use of the footage requires licensing through Markson Sparks.

Uh, no. Fair use does not "expire." Copyrights expire, but fair use does not. The Guardian's reporter, Jon Swaine, apparently called up Markson's employee, Margaux Nissen Gray, who sent the letter, and things just get more inane.

Asked why they believed the footage needed to be licenced, Nissen Gray said: “We have discussed with our copyright attorneys and ‘fair use’ doesn’t extend to this amount of time that it has been in use. So because the footage belongs to Feidin Santana he is eligible to licence it.”

I'm curious who these "copyright attorneys" are, because they're not just wrong, they're so wrong that I have trouble believing they legitimately exist. Markson may very well be a successful publicist, and he doesn't seem to care as long as clueless companies continue to pay up on these threats, but the fact is that he's wrong and looks totally clueless on copyright every time he opens his mouth. And, frankly, if media companies really are paying up on this little scheme, those media companies ought to fire their own copyright attorneys as well.

Finally, in my previous post, I had suggested that the guy who took the video, Feidin Santana, was looking to "cash in." However, the details suggest that Santana is almost entirely out of the loop here. Instead, his lawyer, Todd Rutherford, is basically running the show and made the deal without much awareness by Santana about what's being done in his name and with his copyrights. That could come back to bite Santana badly if Markson continues to threaten media organizations in this manner. Some of them actually have good copyright lawyers, and they quite likely will hit back seeking a declaratory judgment for non-infringement.

* In further conversations, Markson also mocked me for caring about this, talking about how he's "closing deals daily!" as if he's proud of the fact that he's directly profiting off of a policeman murdering an unarmed man. Markson really is showing his true colors here in quite amazing ways.

Filed Under: cease and desist, copyright, fair use, journalism, max markson, reporting, walter scott
Companies: markson sparks, the guardian

Estate Of Joseph Goebbels Using Copyright To Demand Cash From New Biographer

from the that's-like-something-the-nazis...-oh-wait dept

Over the past few months, there have been a bunch of stories about the copyright status of Mein Kampf, with people fretting over the fact that the book is about to go into the public domain. The book, of course, was Adolf Hitler's manifesto, and while few people actually read it, in Germany it hasn't been published in decades. That's because the US seized the Nazis' publishing house, including its copyright in the book. It then gave that copyright to the state of Bavaria, which has used it to block the publication of Mein Kampf ever since. But, with Germany being a country where copyright is life+70, and seeing as Hitler died 70 years ago, on January 1, 2016, the book falls into the public domain (in the US, however, Houghton Mifflin apparently still retains the rights -- because nothing ever goes into the public domain here).

Either way, now there's another copyright dispute concerning a top Nazi: Joseph Goebbels, Hitler's minister of propaganda. It turns out that while his copyrights also flip over into the public domain on January 1st of next year, a UK professor, Peter Longerich, just published a new biography of Goebbels, and Goebbels' heirs have come out of the woodwork to demand royalties, because the book quotes Goebbels' diaries.

Cordula Schacht – a lawyer whose own father, Hjalmar Schacht, was Hitler’s minister of economics – is suing Random House Germany and its imprint Siedler, over the book Goebbels, by Peter Longerich, professor of modern German history at Royal Holloway, University of London.

Longerich, an authority on the Holocaust and Nazi era Germany, drew extensively on Goebbels’ diaries in his biography, which was published in Germany in 2010. Now those same passages from the diaries are set to appear in the English ­edition, which Penguin Random House UK and its imprint Bodley Head will publish on 7 May.

Most of the debate focuses on whether or not it is appropriate for money to "go to a war criminal," as Random House's top lawyer complains. There is also some discussion of who owns the copyright, as some believe that when the US seized the Nazis' publishing house and got the copyright on Mein Kampf, it also got the copyright on Goebbels' works.

Unfortunately, what's not discussed at all is how fair use should take care of a situation like this. Tragically for both Germany and the UK, neither have fair use. The UK does have a narrowly targeted "fair dealing" concept that likely does not cover this kind of scholarly publication.

Yet, this seems to show just why fair use is such an important concept. Being able to have academic experts properly quote historical source material in writing up biographies and other analyses of historical events and people seems like a no brainer for anyone hoping to properly study and record history. Using copyright to try to lock up such information (or to put a tollbooth on it) only serves to massively limit the ability of our society to accurately study and learn from history -- especially history as tragic as Nazi Germany.

Filed Under: adolf hitler, copyright, diaries, fair use, germany, joseph goebbels, peter longerich, public domain

Guy Who Took Walter Scott Shooting Video Now Demanding To Be Paid; Everyone Gets Confused About Fair Use

from the let's-take-this-slowly... dept

As you probably heard, last week there was a big story involving North South Carolina police officer Michael Slager being charged with murder for the shooting death of Walter Scott. Slager had told a story about how Scott had taken his taser. But, a few days later, a bystander's video of the incident was released and told a very different story. If you didn't see it, here is the video, which is rather graphic, seeing as someone is shot to death in the video. We didn't cover this story, which surprised some -- since we frequently cover police brutality stories, with a special focus on stories involving cellphone videos being used to dispute the "official line" from police. However, this was one case where the issue had received so much press coverage that we felt we had little to add to the story.

Well... that is until a copyright angle was added to the story. You see, the guy who actually shot the video, Feidin Santana, has apparently hired a publicist who is demanding news stations pay up for showing the video. And yes, news stations are playing the video so often that it's become a Jon Stewart punchline. Sanata had initially been anonymous, and claimed that he was worried about retribution, but since coming forward has apparently decided that he might as well cash in.

The publicist who is apparently going around trying to charge for this (one assumes after being retained by Santana) has some interesting views on how this all works:

“It’s been allowed to be used for free for over a week now,” Max Markson, CEO of the Sydney-based Markson Sparks group, told the Daily News.

“Now it’s going to be licensed and now you have to pay for it.”

But there's a big problem with this plan, and that is known as "fair use." News reporting is one of the fundamental parts of fair use. Unfortunately, the reporter from the NY Times, Frances Robles, seems to have very little knowledge about fair use and relied on a ridiculously biased expert to argue otherwise. She spoke with Frederic Haber of the Copyright Clearance Center, an organization that goes around trying to license everything and is fundamentally against fair use. And yet, Robles insisted that "copyright experts agree" that fair use somehow no longer applies:

Copyright experts agreed that although news agencies are allowed to use even copyrighted material under what is called “fair use” clauses in the law that time period has passed.

Many actual copyright experts challenged Robles about this issue on Twitter, and she insists she spoke to two others besides Haber and they all agreed, though when questioned, she refused to name who those copyright experts were. And that's a problem, because all three of those copyright experts -- assuming Robles actually found three -- are wrong. There is no "time limit" element to fair use. At best someone might try to argue that after a certain period of time the piece was no longer newsworthy and thus fair use no longer applied, but that seems like a huge stretch.

There is no fair use in Australia, so perhaps that's why Markson is so confused. Take, for example, the nonsensical statement he gave Buzzfeed:

“Fair usage for video exists and networks can still use it for a certain amount of time,” Markson further explained, “like with footage from the Olympics, but the fair usage fee is for people who want to use it again. And in the lead-up to the trial we expect there will be more requests for licensing.”

This makes no sense. There is no such thing as a "fair usage fee." Markson doesn't seem to have any idea how fair use works, and it's unfortunate that the NY Times report that many people are basing their own reporting on isn't any better.

There is plenty of case law that I'm sure any real "copyright expert" would have passed along to Robles had she asked them. Hell, just last year there was a good fair use ruling saying that Bloomberg was allowed to distribute a recording of Swatch's investor calls. The idea that time does away with fair use doesn't make much sense. There's a 1968 case in which Time Life sued Random House and others claiming that using stills from the famed Zapruder film of President Kennedy's assassination was infringing, but the court found it to be fair use, despite it happening years after the film was made (rather than weeks in the case of the Walter Scott video). Then there's the case involving video footage of the beating of Reginald Denny, in which the videographers sued CBS over their use and distribution of the footage (including that it was briefly broadcast on Court TV). Here again, courts found the use to be fair use noting:

We conclude that each factor, particularly the nature of the copyrighted work, weighs in favor of fair use except the substantiality of the use, which we treat as neutral.   Accordingly, we agree with the district court that Court TV's use was protected, and we affirm the grant of summary judgment in its favor.

So it seems rather difficult to see how fair use magically disappeared, no matter what Frederic Haber or the mysterious other two "copyright experts" told Robles.

“At some point it’s not newsworthy anymore and you are using it for commercial benefit,” said Frederic Haber, a vice president and general counsel of the Copyright Clearance Center, a collective licensing organization that works on behalf of copyright holders such as The New York Times. The issue could change once the video is played in court during a trial, he said.

Robles later also seems more confused about how copyright works in suggesting that because Walter Scott's family gave the NY Times the video, it wouldn't be subject to these demands for payment:

The Times has used the video with the family’s permission and not received a cease and desist letter.

That sounds good but is meaningless. The Scott family doesn't have the copyright on the video. Santana does. They have no right to license it and the NY Times is clearly relying on fair use in its presentation as well.

Unfortunately, because most reporters don't really want to bother to understand the issue, many took the NY Times report and ran with it, insisting that, yes, media outlets now have to pay to continue using the video. Even the Poynter Institute, which should know better, ran with a headline saying that the "media must pay" to continue using the video. The article itself at least discusses the fair use issue, but the headline seems to ignore that.

I'm guessing that many big news organizations will just pay up, because it's cheaper than fighting, but they have every right to fight this attempt to undermine fair use. The video is newsworthy and its use in reporting is the kind of quintessential example of fair use that is often used to show how fair use works.

Filed Under: copyright, fair use, feidin santana, max markson, michael slager, news coverage, newsworthy, police, shooting, walter scott
Companies: markson sparks

Chris Dodd's Email Reveals What MPAA Really Thinks Of Fair Use: 'Extremely Controversial'

from the oh-really-now? dept

Two years ago, we were among those who noted how odd it was to see the MPAA in court arguing in favor of fair use, since the MPAA tends to argue against fair use quite frequently. The legal geniuses at the MPAA felt hurt by our post and some of the other news coverage on the issue, and put out a blog post claiming that the MPAA and its members actually love fair use. According to that post, the MPAA's members "rely on the fair use doctrine every day" and the idea that it "opposes" fair use is "simply false, a notion that doesn't survive even a casual encounter with the facts."

Now, as you may have heard, Wikileaks has put the leaked Sony emails online for everyone to search through for themselves. I imagine that there will be a variety of new stories coming out of this trove of information, now that it's widely available, rather than limited to the small group who got the initial email dumps. In digging through the emails, one interesting one popped up. It's Chris Dodd revealing the MPAA's true view on "fair use" in an email to Michael Froman, the US Trade Rep in charge of negotiating agreements like the Trans Pacific Partnership (TPP) agreement and the Transatlantic Trade & Investment Partnership (TTIP).

You see, about a year ago, Froman gave a speech where he made a very brief mention of the importance of fair use, and how, for the first time, the USTR would be including fair use in agreements. Here's what Froman said:

And, for the first time in any trade agreement, we are asking our trading partners to secure robust balance in their copyright systems – an unprecedented move that draws directly on U.S. copyright exceptions and limitations, including fair use for important purposes such as scholarship, criticism, news commentary, teaching, and research.

Nothing major. Nothing controversial. In fact, as we've pointed out, the actual text in the various leaks of the TPP show that while it is true that the USTR has, for the first time, mentioned concepts related to fair use, it has only done so in a manner that would limit how fair use could be implemented.

And that brings us to Dodd's email to Froman, in which he reveals that, contrary to the MPAA's "we love fair use" claim in its public blog post, the MPAA is actually quite fearful of fair use and the idea that it might spread outside of the US to other countries:

Dear Ambassador Froman:

I am writing to you today regarding your Wednesday remarks at the Center for American Progress. I am concerned about your suggestion that previous free trade agreements’ copyright provisions were unbalanced and that USTR has addressed this lack of balance by including “fair use” in the TPP. Quite to the contrary, the recently ratified US-Korea FTA was supported by a broad cross-section of US industry, from tech and the internet community to the copyright community, and furthermore has been held up as a model agreement.

As I know you are aware, the inclusion of “fair use” in free trade agreements is extremely controversial and divisive. The creative community has been, and remains, a strong and consistent supporter of free trade, but the potential export of fair use via these agreements raises serious concerns within the community I represent. Over the last 24 hours, I have received calls from my member companies questioning what they perceive as a significant shift in US trade policy and, as a consequence, the value of the TPP to their industry.

It may be that people are reacting to the subsequent press releases by private groups following your remarks. I am certain these concerns have been elevated by indications from the US government that the ISP liability provisions in the TPP are going to be weakened. Nonetheless, this issue is of enough significance that I felt I must reach out to you directly prior to your departure for Singapore to register our deep concerns.

I am hopeful that I can report back to my members that that US trade policy has not changed, that USTR is committed to securing strong copyright provisions in the TPP. But, there is no question Wednesday’s speech is reverberating in the content community, and I would be remiss if I failed to raise these concerns to you personally. I would be very grateful if you would respond to these concerns at your earliest convenience. I realize you will be traveling, but this is a sense of urgency surrounding our concerns.

Regards,

Christopher J. Dodd
Motion Picture Association of America

So, the MPAA loves fair use... but the very idea that the USTR might include fair use in a trade agreement (as it had announced years earlier, and which it is doing in very limited -- and limiting -- ways) is "controversial and divisive"? All the way to the point that the MPAA is concerned about whether it can still support the effort? That does not sound like an organization that really does support fair use at all. In fact, it sounds like an organization that actively does "oppose" fair use, contrary to the claims in its blog post. Funny how the MPAA's public statements appear to completely disagree with what it says directly to politicians, huh?

Filed Under: balance, ben sheffner, chris dodd, copyright, fair use, michael froman, tpp, trade agreements
Companies: mpaa

Fair Use Victory For Broadway Parody Of Three's Company

from the funny-story dept

Here's something you don't see every day: a copyright case in which fair use prevails. David Adjmi produced a play entitled 3C, a parody-take on the classic sitcom Three's Company, the copyright of which is held by DLT Entertainment. After 2 months of off-Broadway production and just before Adjmi wanted to translate the play for literary release, DLT fired off a cease and desist letter. Rather than retreating, Adjmi, with the support of the Dramatists Guild of America, went to court to get his work affirmed as non-infringing, arguing that it is both parody and transformative. U.S. District Judge Loretta Preska ruled in agreement in a whopper of a ruling (you can read the full ruling here or embedded below). Her comments within the ruling demonstrate a textbook understanding of both copyright and fair use.

She writes that the body of copyright law “is designed to foster creativity. It does so by, in effect, managing monopolies in knowledge: granting one in original work to reward its creator, but ensuring it is limited, temporary, and does not operate as a moratorium on certain ideas. The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge. Here, ‘further protection against parody does little to promote creativity, but it places substantial inhibition upon the creativity of authors adept at using parody.' ”

In addition to finding that 3C is clearly a transformative work, as opposed to anything resembling blatant copying, this ruling reads like a best-case scenario for those of us that believe all kinds of transformative works building off of existing works are protected, useful, creative and necessary. Adjmi had a message to send and, while the original Three's Company might serve as the starting line for his creative vehicle, the finish line is somewhere far different than that of the original sitcom. Nobody attending the play lacked the understanding that this was something new, something different from the original show, the original show's message, or that the play was anything other than social commentary using a trope-ladened show from the 70's.

According to Adjmi, his 3C was a comment on the "ways the television show presented and reinforced stereotypes about gender, age and sexual orientation" as well as "the times in which the show flourished -- when sexual liberation had begun to reshape American society, and dominant cultural forces like television attempted to channel it in commercially profitable directions, while many forms of sexual oppression continued."

That kind of commentary is important and, even if you disagree with the message, or think that platforming the commentary on a show as silly as Three's Company is misguided, those aren't questions of copyright law. Once the work becomes parody, never mind transformative, there ends the copyright argument. Judge Preska delved into the four-factor analysis of the claim, finding that DLT's claim of direct copying of characters, settings and themes to be baseless.

“Despite the many similarities between the two, 3C is clearly a transformative use of Three’s Company,” she writes. “3C conjures up Three’s Company by way of familiar character elements, settings and plot themes, and uses them to turn Three’s Company’s sunny 1970s Santa Monica into an upside-down, dark version of itself. DLT might not like the transformation, but it is a transformation nonetheless.”

More likely, the more correct assertion would be that DLT might really like money, but they can't get any out of Adjmi just because some elements of Three's Company appear in his parody and transformative play.

Filed Under: broadway, david adjmi, fair use, loretta preska, parody, three's company
Companies: dlt entertainment

How The TPP Agreement Could Be Used To Undermine Free Speech And Fair Use In The US

from the dangerous-stuff dept

We've been writing a lot about the Trans Pacific Partnership (TPP) agreement over the past few years. There are many, many problems with it, but the two key ones are the intellectual property chapter and the investment chapter. Unlike some who are protesting TPP, we actually think that free trade is generally a good thing and important for the economy -- but neither the intellectual property section nor the investment chapter are really about free trade. In many ways, they're about the opposite: trying to put in place protectionist/mercantilist policies that benefit the interests of a few large legacy industries over the public and actual competition and trade. We've already discussed many of the problems of the intellectual property chapter -- which is still being fought over -- including that it would block the US from reforming copyright to lower copyright term lengths (as even the head of the Copyright Office, Maria Pallante has argued for).

And, last week, Wikileaks leaked the investment chapter, which is focused on corporate sovereignty provisions, officially known as "investor state dispute settlement" or "ISDS" (named as such, in part, because the negotiators know it sounds boring, so they hope the public won't pay attention). As people go through the details and the fine print, they're finding some serious problems with it. Sean Flynn has a very in-depth look at how the combination of these two chapters -- the IP chapter and the investment chapter -- could very likely threaten fair use (and, with it, undermine the First Amendment).

The full details as to how are a bit tricky to understand, because it involves digging through the leaked versions of both chapters, and understanding some of the subtle language choices, but it's a serious concern. Flynn's article also goes through the history of how such corporate sovereignty provisions have been expanded and increasingly used over the past decade or so. But the key part is this: the investment chapter certainly can (and will) be read to cover intellectual property as well, including the idea that a company can invoke the ISDS process if it feels its "intellectual property" has been "expropriated" in some manner. The word "investment" in the investment chapter is defined incredibly broadly and explicitly includes "intellectual property" as well as "other tangible or intangible, movable or immovable property." It also, importantly, notes that an investment, for the purpose of ISDS, covers:

every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.

Now, it's no secret that the legacy entertainment industry is no fan of fair use (even if they often rely on it themselves). While fair use is officially part of the law in the US, the entertainment industry just recently fought very hard to block it in the UK and Australia, arguing (ridiculously) that fair use would harm innovation.

Even where there are very strong arguments for fair use -- such as in helping the blind access works -- the entertainment industry has twisted the so-called "three step" test from the Berne Agreement to argue that that is the most that is allowed for fair use. The three step test is actually really about limiting fair use, rather than enabling it. It is in the Berne agreement (as a relatively recent addition) as one possible "exception" to copyright, but not the only one. However, the haters of fair use like to pretend that it is the only one allowed under that agreement.

Under the three step test, "exceptions" to copyright occur when there are:

limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder

And, of course, in the US, fair use goes way beyond that already. And, as Flynn points out, it appears from the leaked text of TPP, the US would now be opening itself up to an ISDS challenge from a foreign owned company (remember: Universal Music is owned by a French company, Sony Music is owned by a Japanese company and Warner Music is owned by Russians...) that the fair use doctrine itself "expropriates" its "intellectual property" rights by going beyond the three steps test. Here's Flynn:

And here is a major one lurking in the shadows. Many copyright intensive industries are hostile to the U.S. fair use doctrine and many of the decisions of courts emanating from it. There have been arguments raised from time to time that the doctrine or its applications are contrary to the so-called Berne 3-step test requiring that limitations and exceptions to rights be limited to certain special cases, not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the author (see this rebuttal from Gervais et al.). No other country has attempted to sue the U.S. or the nearly dozen other countries around the world that have fair use. But will the content industry be so reticent with such challenges in the future? With the TPP ISDS chapter, they will not have to in 40% of the global economy.

And this isn't so far fetched. As we've been discussing, under existing ISDS/corporate sovereignty provisions in NAFTA, Eli Lilly is currently suing Canada for $500 million because Canada refused to grant it some patents. Eli Lilly is arguing that this "expropriated" Eli Lilly's "intellectual property" and took away its "expected profits."

Is it that difficult to believe that a recording studio or movie studio might make a similar argument on a fair use determination on one of its copyright-covered works?

And, if fair use is undermined, so is free speech. As we've noted, the Supreme Court itself has long argued that current fair use doctrine is a necessary "safety valve" in making sure that copyright does not violate the First Amendment. In other words, fair use is a key part of your First Amendment rights.

And yet... the USTR is basically putting in place a plan and system to undermine this, because the big copyright players are among the very few people who are allowed to see the negotiating text and to "advise" the USTR on what should be in it. Once again, it would seem like the most obvious way to deal with this would be for the USTR to release the negotiating documents, so that the public would be aware of what's being negotiated, and could discuss the possible consequences -- like how the current rules have the potential to undermine fair use and free speech. But, for reasons that the USTR still will not explain (perhaps because they reveal the USTR's true reasoning for such provisions), it refuses to do so.

Filed Under: copyright, corporate sovereignty, fair use, free expression, intellectual property, isds, limitations and exceptions, tpp

Company Wants To Nickel And Dime Every Single Music Mashup

from the searching-for-pennies-in-the-couch-cushions dept

With the record labels desperate for any new source of revenue, they've been increasingly trying all sorts of convoluted plans to try to find "untapped" sources of revenue. Apparently mixtapes and mashups are next on the list. As you're hopefully aware, mashups have become a big deal in the world of music and remixes of various songs have become popular in interesting ways. Artists like Girl Talk and DJ Earworm have become incredibly popular. In the past, we've discussed how these kinds of remixes and mashups are almost certainly fair use, but things are tricky in the world of music samples, because of some totally screwed up court rulings. You have crazy rulings on the books like Bridgeport Music v. Dimension Films where the judge not only quoted the Ten Commandments as an authority (no, really), but also announced "get a license or do not sample," because he didn't even want to think about the concept of fair use.

This has created something of a problem for new music services, such as Spotify, Pandora and the like, where they often will not offer remixes and mashups, even when they're super popular. The problem for those services -- which do pay for licenses -- is often "who to pay?" on those songs. The answer should be that it's fair use and quite frequently acts as promotion for the original works, so it will help get those original songs more plays and licensing revenue that way. But no one wants to take the legal risk.

So, instead, it looks like we may end up with a completely bogus licensing regime that isn't required because of fair use -- but is going to happen, because everyone's scared to make the fair use argument. The WSJ has an article on a company that is jumping into the space, called Dubset Media, that has come up with its own system to analyze mashups and remixes to figure out how much of a song they use and then pay out royalties based on that amount:

Dubset Chief Executive Bob Barbiere estimated that online music mixes could eventually generate $1.2 billion a year in additional revenue for the industry. Currently all the big subscription music services “deal with same library, but now you’re dealing with a whole new world of content that could help drive new subscription,” he said.

Dubset spent the past several years creating its “MixScan” technology to analyze DJ mixes, which it hosts on a small music-streaming service it operates called Thefuture.fm.

Before posting music on the site, Dubset analyzes it, measuring how many seconds each individual song is heard and logging the data into its library. It then pays royalties based on the number of times users listen to a given mix, along with the length of time each song was featured in the mix.

As the article notes, Dubset has actually been around for quite some time. I've spoken to some of the founders before, and actually thought some of what they were doing was interesting in putting together a platform for these kinds of mashups and remixes. But the latest move to work with the major labels to then try to license these works to other platforms has me worried about what it may mean in the long run for this art form.

The article itself seems weirdly devoid of any discussion on the actual copyright implications of this. It doesn't mention copyright or fair use at all. It's not even clear how Dubset Media determines the royalties, though apparently it's negotiating with the major record labels on some sort of deal. Perhaps those record labels will agree, because this is money from nowhere -- in fact, it appears to be the potential of money out of fair use, where no money needs to be paid.

And that likely means that once the labels start getting a sense that there is some money to be made in licensing remixes and mashups, they're going to want more money from remixes and mashups -- because that's how the major labels always act. And that's likely going to mean a pretty big crackdown on the way most remixes and mashups are made and distributed, because the labels are going to want cold hard cash for each one. Remixes and mashups started as an amateur pursuit -- a fun thing to do, or a way to show off some skills. And while there certainly are plenty of professionals now doing it, you can bet that the labels are going to try to lock up and monetize all of it.

There's an excellent documentary, called Copyright Criminals, that tells the story about the early days of hip hop, in which most people considered it perfectly legal (or just didn't care) to sample others' music to make hip hop songs. And then people started getting sued, and the whole nature of sampling changed. When you had to pay for every sample, suddenly sampling was crazy expensive. So much so that some of the most creative hip hop albums of all time, like De La Soul's 3 Feet High and Rising and the Beastie Boys' Paul's Boutique could not be legally made today.

The only barely underground community of mashups and remixers brought that world back, at least partially, allowing us to see the kind of amazing creativity and music that could have been created if only the law allowed it. People weren't suing over it for a variety of reasons -- including the fear of a potential legal loss that reinforced the fair use argument -- but also because it really was just a side thing. But this move, to try to start licensing it all, regardless of the fair use question, seems likely to create another shift in remixes and mashups -- one where major labels eagerly searching for coins in the couch cushions, suddenly make it nearly impossible for anyone without a big bank account to take part in this art form.

Filed Under: copyright, dj mixes, fair use, mashups, remixes
Companies: dubset media, thefuture.fm

The Cartoonist Has No Idea How Fair Use Works

from the wanna-try-that-again? dept

On Friday, we had a post about some political comic strips that were posted to the Tumblr blog A Good Cartoon. Whoever is behind that blog (on the blog the name used is "rorus raz," and the post asks people to credit rorus raz, but on Twitter it's "Alan Smithee" which is a popular pseudonym) first posted a bunch of political cartoons by syndicated political cartoonists that demonstrated a near total lack of understanding about net neutrality, and then posted a followup post that took many of those political cartoons and replaced the bubble text with the simple statement "the cartoonist has no idea how net neutrality works." Well-known TV, book, podcast and internet personality John Hodgman then reblogged it on his site.

I first saw it on Hodgman's site and set it aside to write about it. When I got around to it late on Friday afternoon, I noticed, oddly, that the original on A Good Cartoon was now gone. There was no note or anything. It was just gone. However, Hodgman's version was still up, so I wrote about it and posted some (but not all) of the comics and added some additional commentary.

Over the weekend, however, the version on Hodgman's site also disappeared, and Twitter user Michael at BU alerted me to the news that over at A Good Cartoon a DMCA takedown notice had been posted. It appears that the copyright holder representing the cartoonist Chip Bok sent Tumblr a takedown. What's posted to the blog is what Tumblr sent to A Good Cartoon, and not the original takedown notice -- so it's not clear if it was sent via Bok himself or Creators Syndicate, which syndicates Bok's strips. Bizarrely, the notice that's posted to A Good Cartoon is not text and not a single image, but rather each word is a separate image. I have no idea why, but here's the transcribed note:

Hi,

We've received a notification of alleged copyright infringement on one of your blogs. Here are the details of the content in question:

Copyright holder: Katie Ransom

Post URL(s): http://agoodcartoon.tumblr.com/post/112519623990/the-cartoonist-has-no-idea-how-net-neutrality

Description: The work is a copyrighted cartoon by artist Chip Bok. The caption of the cartoon was altered, but the copyright and signature remain, making it look like this work is by the artist, when it is not. You can find an original copy of the cartoon here: http://www.creators.com/editorialcartoons/chip-bok/31500.html

The content has since been removed, in accordance with U.S. law and Tumblr's own copyright policies.

It's important for all creators that our users respect copyright, and so we ask that you take greater care when posting other people's creations to your Tumblr blog. You can review Tumblr's Terms of Service (https://www.tumblr.com/policy/terms-of-service) and Community Guidelines (https://www.tumblr.com/policy/community) for more information on our copyright policies.

At Tumblr, we implement a strict three-strike policy against copyright infringers. The notice we received counts as one strike against your account. If you receive three uncontested strikes within 18 months, your account will be terminated. You can contest this notification by following the instructions for a DMCA Counter-Notification found here: https://www.tumblr.com/policy/terms-of-service#dmca. A successful counter-notification will remove the strike against your account.

Please note that if your account is terminated for repeat copyright infringement, any new accounts you create will also be terminated.

This is a good opportunity to learn more about U.S. copyright law (never a bad idea) and to make sure that none of your other posts are infringing on someone's copyright. Here are a few free resources you might want to look over:
http://fairuse.stanford.edu/internet-resources/
http://www.teachingcopyright.org/
http://copyright.gov/

Please let us know if you have any questions or concerns.

Best,
Tumblr Trust & Safety

It would appear that the cartoonist has no idea how fair use works (and the same may be true of Tumblr's "Trust & Safety" staff). Yes, fair use is often a judgment call, but it's difficult to see how this is not classic fair use. It was transformed (as the Tumblr letter even admits), and the transformation was done for the purpose of commentary and criticism of the original -- classic parody, which the courts have recognized as quintessential fair use. Finally, it was not done for commercial reasons and the impact on the market for the original is clearly none (other than the fact that it might make Chip Bok look foolish -- but the courts have been clear that it needs to be the copying, not the commentary that harms the market, and that's clearly not the case here -- i.e., the question is whether or not the copied work might substitute for the original in the market). To better understand this, we'll post both versions here (which again is fair use, should Bok or his syndicate suddenly wish to try to play this stupid game on us as well). Here's the original: The line in the bubble doesn't make any sense at all in the context of net neutrality, nor does the message on the TV itself. As we stated in our post on Friday, we already know that the big broadband providers have been the ones who have been deliberately slowing down access to Netflix, resulting in images like the following appearing on people's screens without net neutrality: And, of course, once Netflix agreed to pay up, suddenly the big ISPs magically figured out how to plug in a few more connections and the speeds went back up: Part of the point of the FCC's new rules is to prevent this sort of gaming by the big broadband players so that you won't have to see any delay messages at all when downloading a film. So, given all that, it's rather easy to conclude that Chip Bok has no idea how net neutrality works. And, given that, a fairly good way to parody Bok's ignorance is to post the following cartoon: A Good Cartoon's response to the DMCA takedown is to note, "i'm astonished that chip bok believes people could confuse something he made with something that's actually funny and intelligent." Of course, being embarrassed about a parody does not make it infringing. It's still fair use. So, the most likely conclusion is that Chip Bok (and/or his syndicate) has no idea how fair use works.

Update: Over at his own site Bok is insisting this is not fair use and tossing out all sorts of nonsense about how he's older than everyone and thus understands these things better:

Really, you people should stop hacking my cartoons to make a point. It’s not “fair use”. It’s illegal. Think the FCC will help me out here? You’re destroying my intellectual property and inserting your own stupid message. Are you Chinese? Come up with something on your own.

This is especially funny since Bok's own site is called "Bokbluster" a clear play on the name of "Blockbuster." And, of course, that's a perfectly legitimate way to make use of something someone else created. But, Bok is so hypocritical that apparently he thinks that only he is allowed to build on another's work. Even worse, it appears he's racist, calling someone "Chinese" for criticizing him. That's incredible. And, on the copyright question, Bok is wrong. It is absolutely fair use, as described above. And his "intellectual property" is not being "destroyed" just because someone created a parody. That's not how it works. At all. His further comments show a complete lack of understanding about net neutrality as well. He mis-states the law in question, he mis-states what the FCC has done. Someone really ought to take him aside as suggest he just stop digging.

Filed Under: a good cartoon, chip bok, commentary, copyright, criticism, dmca, fair use, john hodgman, net neutrality, parody, rorus raz, takedown
Companies: creators syndicate, tumblr