US Chamber Of Commerce Guest Post On Fair Use Fails Copyright Law 101

from the because-of-course-it-does dept

In another instance of the U.S. Chamber of Commerce’s Global IP Center (GIPC) posting factually incorrect information, on June 11, the GIPC cross-posted a blog post from Plagiarism Today purporting to clarify the meanings of “5 Copyright Terms We Need to Stop Using Incorrectly.”

I ran across this post because of the following GIPC tweet (screenshot posted here in case it mysteriously disappears):

Unfortunately, the linked post gets basic facts about copyright law wrong. On fair use, it reads:

What it Means: A fair use of a work is an infringement of a work where the court has determined that the infringer is not liable due to the nature of the infringement being within the bounds of the law.

I’m honestly not sure how much more wrong one can get. 17 U.S.C. § 107 plainly 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.

To say a fair use is an infringement is to fundamentally misunderstand the nature of U.S. copyright law. It’s also nonsensical. By definition, an “infringement” means going beyond what is permitted by law. An “infringement being within the bounds of the law” is no infringement at all.

The author’s confusion probably stems from the fact that in lawsuits, fair use is raised as an “affirmative defense.” Many people wrongly interpret this to mean that fair use is a kind of acceptable copyright infringement. This is incorrect. Wikipedia explains it nicely:

“Affirmative defense” is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between “rights” and “defenses”, and so it does not characterize the substance of the defendant’s actions as “not a right but a defense”.

In other words, an affirmative defense is an admission that you committed the alleged acts, but that other circumstances make these acts lawful.

GIPC blog contributors might want to take an introductory copyright law class before trying to educate others on the meaning of fair use.

Reposted from To Promote the Progress? under its CC BY-SA 4.0 license.

Filed Under: affirmative defense, copyright, fair use, infringement, right

Authors Guild Loses Book Scanning Case Once Again

from the because-book-scanning-is-fair-use dept

The Authors Guild simply won't give up on its quixotic attack on modern technology. Even after losing both of its book scanning cases -- one against the Hathitrust (a collection of university libraries) and the other against Google -- it appealed both rulings. This morning, the ruling in the first of those cases, the Hathitrust one, came out, and it pretty much demolished the Authors Guild's arguments, finding, yet again, that book scanning like this is clearly fair use, though for slightly different reasons than the lower court. But there is plenty of useful stuff in the ruling. First, the court explored whether having a full-text searchable database of all text is fair use and found overwhelming support for that idea:

Turning to the first factor, we conclude that the creation of a full-text searchable database is a quintessentially transformative use. ... [T]he result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.

There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede[] the objects [or purposes] of the original creation,” ... The HDL does not “merely repackage[] or republish[] the original[s],” ... or merely recast “an original work into a new mode of presentation,” .... Instead, by enabling full‐text search, the HDL adds to the original something new with a different purpose and a different character.

In other words, copying all the words in books to create that searchable database is transformative fair use. In fact, the court notes that it "adds a great deal more to the copyrighted works at issue than" other transformative uses that the same court has approved. As for the fact that it copies "all" of the work, and how that impacts the "amount of work" used as a fair use test, the court, thankfully, focuses on the word necessary in exploring if "more of the copyrighted work than necessary" was used -- finding that "for some purposes, it may be necessary to copy the entire copyrighted work" and thus that does not weigh against the third factor in the fair use test.

Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function, we do not believe the copying was excessive.

The Authors Guild, somewhat ridiculously, argued that because the full copies are kept on multiple servers, it meant that Hathitrust had "more copies than necessary," but the court brushes that aside by pointing out the value of backups and load-balancing between multiple servers.

But the really big issue comes down to the impact on the market, the fourth factor in the fair use test, and the one that is generally considered to be the most important. The court here makes an important distinction that many people completely miss when analyzing the "impact on the market" question -- which is that the only impact that matters is the impact because the copy serves as a substitute for the original. There are lots of other ways the copy might impact that market that do not matter in this analysis.

To illustrate why this is so, consider how copyright law treats book reviews. Book reviews often contain quotations of copyrighted material to illustrate the reviewer's points and substantiate his criticisms; this is a paradigmatic fair use. And a negative book review can cause a degree of economic injury to the author by dissuading readers from purchasing copies of her book, even when the review does not serve as a substitute for the original. But, obviously, in that case, the author has no cause for complaint under Factor Four: The only market harms that count are the ones that are caused because the secondary use serves as a substitute for the original, not when the secondary use is transformative (as in quotations in a book review).

The Authors Guild tried to get around this by using a popular tactic in copyright/fair use cases: claiming that the use might preclude a future licensing opportunity for the work. Thankfully, the court flat out disagrees with this assertion:

This theory of market harm does not work under Factor Four, because the full‐text search function does not serve as a substitute for the books that are being searched... Thus, it is irrelevant that the Libraries might be willing to purchase licenses in orderto engage in this transformative use (if the use were deemed unfair). Lost licensing revenue counts under Factor Four only when the use serves as a substitute for the original and the full‐text‐search use does not.

The Authors Guild also tested out a more laughable, and less popular theory, that because someone might hack into the database and free the works, it represents a harm on the market. The court is... not impressed, noting (1) that the libraries have taken precautions against this and (2) the risk is "hypothetical" and "conjectural" calling back to the MPAA's claims of "harm" from the VCR, where the Supreme Court rejected as being merely "speculative." In other words, you have to show a real likelihood of harm and not just some fantasy land conjectures.

The court also looks at two other users of the work. First, there's the question of providing digital access to "print-disabled audiences" (e.g., the blind, who may have trouble with ordinary books). It's somewhat ridiculous that the Authors Guild seems to actively fight against making works available in other ways to those it doesn't properly serve, but that's the Authors Guild these days. Once again the court notes that this is a clear fair use. Finally, on the question of "preservation" of the works, the court punts, saying it's unclear if that's really an issue with any of the works involved in this lawsuit. Thus, it's not clear if the Authors Guild even has standing to argue that the preservation of works is copyright infringement. So it sends the argument back down to the district court on that issue.

All in all, yet another good win for fair use -- though, given the Authors Guild's previous actions, it is likely they will appeal this ruling as well. Because that's what the Authors Guild does.

Filed Under: 2nd circuit, book scanning, copyright, fair use, standing, transformative
Companies: authors guild, hathitrust

Vimeo Pressured Into Setting Up Its Own Content ID

from the via-audible-magic dept

The legacy copyright industry has been pushing for years to make automatic fingerprinting and blocking a requirement under the law. In fact, many lawsuits from both the record labels and movie studios have argued that automated fingerprinting is already a requirement under the law -- though, those legal arguments have been consistently rejected. For example, in the record labels lawsuit against Vimeo for allowing "lipdub" videos, the labels have been claiming that Vimeo's failure to offer an automated system for filtering out copyright-covered works amounted to "willful blindness." While the court rejected that argument wholeheartedly, noting that the law makes "clear that service providers are under no affirmative duty to seek out infringement," it appears Vimeo has decided to do so anyway.

On Wednesday, Vimeo announced its new Copyright Match tool. Like basically every non-Content ID filter out there, this one relies on technology from Audible Magic, which doesn't necessarily have the best reputation. Vimeo seems to bend over backwards to insist that it will allow fair use... but it appears they're still taking a "takedown first and review later" approach to it. If your work is blocked, you can claim fair use, and then wait for Vimeo to determine if they agree with you or not -- even if the copyright holder never complained about the work.

In other words, it's another step towards permission culture, rather than allowing the sort of permissionless creativity and innovation that is so important today.

Filed Under: content id, contente match, copyright, creativity, fair use, filters, permission
Companies: audible magic, vimeo

Goldieblox Agreed To Pay Charity $1 Million For Using Beastie Boys' Girls

from the fair-use-gets-pricey dept

It appears that the "settlement" between the Beastie Boys and Goldieblox was somewhat more significant than people imagined. Goldieblox will be contributing 1% of its revenue to a charity chosen by the Beastie Boys until it's paid up $1 million. Fair use ain't cheap, apparently.

Back in March, we noted briefly that the Beastie Boys and Goldieblox had settled their big legal dispute, over Goldieblox doing a commercial that included a parody of the Beastie Boys' song "Girls." We still strongly believe that this was a clear cut case of fair use, but the whole case got more emotionally complicated by the Beastie Boys general prohibition on the use of its songs in advertising, including Adam Yauch putting in his will that his music can not be used in ads. Legally, that statement has no bearing on the fair use analysis, but to many people, to ignore those wishes still felt pretty damn icky. Goldieblox appeared to fairly quickly realize that they were losing the war of public perception and capitulated.

However, the terms of the "settlement" were kept secret -- until now. And that's only because in a different legal fight between the Beastie Boys and Monster Energy Drink involving a Monster Energy Drink event where DJs played tribute to the Beastie Boys the day after Yauch passed away. The specifics of that case really aren't that important, but a recent filing in that lawsuit, concerning a "reasonable" licensing amount, also happens to reveal the settlement terms of the Goldieblox settlement (via Eriq Gardner):

The GoldieBlox Settlement granted GoldieBlox a retroactive license to use the musical composition of “Girls” between November 18, 2013 and November 28, 2013.... In exchange, GoldieBlox agreed to make annual payments of 1% of its gross revenue, until the total payments reached $1 million, to a charitable organization chosen by the Beastie Boys and approved by GoldieBlox which supports “science, technology, engineering and/or mathematics education for girls.” ... The parties also agreed to make certain, specifically worded public statements... and to keep the settlement confidential, with certain exceptions, including its use in litigation.

While $1 million donated to a charity that focuses on "science, technology, engineering and/or mathematics education for girls" is certainly a good thing, and settling this fight amicably is a good resolution, it's still somewhat disappointing. Again, the original usage was almost certainly fair use, and I always worry when people diminish fair use, or assume that there can be no fair use in commercial cases. That's simply untrue, and agreeing to pay $1 million, even to charity, for a clear fair use, which was online for just 10 days, did nothing to harm the original song (and, in fact, brought a lot more attention to some important ideas), seems like an unfortunate result.

Filed Under: beastie boys, copyright, fair use, girls, settlement
Companies: goldieblox

Australia's Attorney General Ignores All Evidence And Experts: Decides To Obey Hollywood's Commands On Copyright

from the politics-in-action dept

We kind of expected this to happen, but after a long process in which the Australian Law Reform Commission (ALRC) carefully reviewed all sorts of proposals and evidence on copyright reform, and released some sensible proposals, Australia's Attorney General (who is also its Arts Minister apparently), George Brandis, has ignored all of it, preferring to only listen to a Hollywood front group, leading him to push for a three strikes plan and censorship in an attempt to "protect" Hollywood. He does this, even though some of the best research on how terribly ineffective three strikes programs have been comes from Australian scholar Rebecca Giblin.

In other words, despite lots of careful research by independent parties, and plenty of scholarly work to inform the debate, Brandis has decided to ignore all of it, and go with what the MPAA is telling him to do -- and yes, the "Australian Screen Association" is actually run by folks in Hollywood (though it changed its name from AFACT to ASA to try to hide that).

For years, our biggest complaint with copyright policies is the fact that so much of it is entirely faith-based. The movie and recording industries go on big emotional pleas about how "piracy" is destroying their industries (despite record output), and insist that the reason is piracy -- ignoring tons of evidence that this is not the case. There is no doubt that these industries are facing serious transitions, but time and time again, we've seen that those who embrace the transition and (here's the key part) provide more of what the public wants in a convenient fashion tend to do better than they did before. At the same time, merely ratcheting up enforcement and censorship creates massive unintended consequences and little actual benefit for the industries who push for those policies.

Australia's decision to cave to Hollywood on this will be cheered as a victory by the MPAA and its various supporters, but it's a massive loss for everyone. Promoting censorship along with anti-innovation and anti-consumer policies are no way to embrace the future.

Filed Under: alrc, australia, copyright, evidence, fair use, george brandis, innovation, isps, secondary liability, three strikes

Ex-Wife Allegedly Using Copyright To Take Down Husband's Suicide Note

from the copyfraud dept

Via Silverscarcat we learn of an absolutely bizarre situation in which it appears that the ex-wife of a man who committed suicide late last year, is claiming copyright on his lengthy suicide letter in an attempt to get it taken offline entirely. It should be noted that all of the public information at this point is coming from websites that advocate for men's rights in family courts (i.e., not quite a neutral third party), but it is true that original version of the letter has been removed from Scribd, and the reason stated is a copyright claim. The site A Voice for Men has refused to take the letter down, but provides the following explanation:

Does a wife who may have driven a husband to suicide with the assistance of our corrupt family court system, then have a legal right to claim copyright — of his suicide note?

According to attorney Rachelle E. Hill, of Bean, Kinney and Korman, and a judge, that is precisely the claim. Their lawyer has written the offices of A Voice for Men to demand that we remove a post from the forums containing the note.

It would be great to see both the takedown demand, and the judge's claim, but it is undeniable that the letter itself has been taken down in some places due to a copyright claim -- and the claim appears to have come from that same law firm. Some others are claiming they've personally been pressured into removing the letter. Others are also pointing out that the blog that that Chris Mackney maintained, detailing his custody battle, which was listed in his obituary from just a few months ago, called Good Men Did Nothing, is now gone as well. However, that might be due to a failure to continue to pay hosting bills.

Either way, the idea that a woman would be abusing copyright law to stifle her ex-husband's suicide note, seems like a clear case of censorship-via-copyright. The various sites reporting on this would appear to have a very strong fair use claim as well -- and at least a few (including the one linked above) are refusing to take down the letter. Furthermore, as this is getting more attention, more people appear to be posting variations on the letter getting it much more attention. In fact, a bunch are now reading the letter aloud on YouTube (making it even more transformative in any fair use analysis).

I have emailed Dina Mackney's lawyer to ask for any comment on the situation, but as of this posting, there has been no response. There are some claims in the letter which, if untrue, might possibly be defamatory (though they might also be considered normal hyperbole and opinion). However, even if some statements are defamatory, that has no bearing on the copyright question -- and, again, from all appearances, it is a copyright claim that has been made.

Other details may be relevant. While there are references to "ex-wife" it's not entirely clear when or if the divorce was finalized. It is possible that without a finalized divorce, the copyright in his letter (which obviously belongs to him) could possibly pass on to his heir, who could potentially be his wife (though, you'd imagine given the situation that he would have taken steps to avoid anything passing on to her).

While it still seems unlikely that she has a legitimate copyright claim on the letter, even if we give her and her lawyer the benefit of the doubt, the takedowns are almost certainly copyright misuse to censor speech. There is a strong fair use claim for the various sites publishing the letter. On most of the sites I've seen with it, the use was for reporting and criticism (classic fair use). If you even go on to do a four factor fair use test, it's almost certainly going to be fair use as well. The use is for reporting (transformative), in many (though not all) cases, only a portion of the letter was posted, there is no impact on the market because there is no market for the letter. And, of course, just the fact that it's a suicide note, would almost overwhelmingly point to fair use.

Furthermore, even if we assume through some convoluted legal process that Dina Mackney actually has some legitimate copyright claim over her ex-husband's suicide letter (much of which he spends angrily denouncing her, her family and her lawyers), it highlights the sheer ridiculousness of the way we now automatically grant a copyright on everything written. Chris Mackney probably never considered the consequences of a copyright on his suicide note, because, who the hell would? Given Mackney's previous efforts to discuss his situation, it's pretty clear that he intended the note to be shared widely, but it's fairly ridiculous to argue that someone writing a suicide note should also have the forethought to dump a Creative Commons license or dedicate it to the public domain before taking their own life.

In the end, from all of the evidence, this certainly appears to be a serious case of copyright abuse to silence speech in a rather disgusting manner. Though, as a result of that abuse, it certainly appears that the original content is getting a lot more attention. I think there's a name for that sort of thing.

Filed Under: censorship, chris mackney, copyright, dina mackney, fair use, rachelle hill, suicide note
Companies: bean kinney and korman

Hollywood Has Been Pressuring Australian Attorney General To Pressure ISPs Into Being Copyright Cops

from the because-of-course-they-are dept

For years, we followed the important iiNet case in Australia. Hollywood studios, which ran a group called AFACT in Australia, wanted to "set an example" of why ISPs should be liable for copyright infringement done on their networks, and deliberately chose iiNet to sue, believing the ISP was too small to mount a serious challenge. Instead, iiNet fought back strongly, making really strong points about how ridiculous it was to pin the blame on an ISP. The result was a complete victory for iiNet. It won at the district court, at the appeals court and finally at Australia's high court.

Of course, Hollywood (AFACT is Australian-in-name-only -- a Wikileaks State Department cable revealed it to be an operation wholly controlled by the MPAA in Hollywood) continued to freak out, leading the Australian government to hold "stakeholder" meetings between the entertainment industry and the ISPs (note: no public representatives, even though they're the real stakeholders), to try to broker an agreement to make ISPs act as copyright cops. Of course, because Hollywood's position is inherently ridiculous, the ISPs noted that it was like negotiating with a brick wall, and talks soon broke down. The ISPs made it clear that it was silly to blame them when Hollywood itself was to blame by not making works available.

But, of course, Hollywood never stops. AFACT rebranded as the Australian Screen Association, and apparently has been very busy pumping new Australian Attorney General George Brandis full of misleading information and pure propaganda. We recently noted that Brandis was supporting website blocking and three strikes like programs, despite them failing elsewhere. And, he's also come out against fair use, because, fuck the public, Hollywood is upset.

Josh Taylor over at ZDnet used the Freedom of Information Act to get emails from between Neil Gane -- the "contractor" who ran AFACT and now the Australian Screen Association -- and Brandis, showing an ongoing campaign in which Gane continued to push Brandis with a series of one-sided misleading emails about how anti-consumer programs in other countries were the way forward:

In nine emails from Gane to the Attorney-General's department secretary, Roger Wilkins, and first assistant secretary in the civil law division, Matt Minogue, sent between the election and this year, obtained by ZDNet under Freedom of Information, Gane appears to be providing education notices of his own to the department, offering insights into how copyright infringement is being dealt with in other countries.

In one email pointing out Canada's moves, he notes that the Canadian government was not buying into the notion that ISPs should be compensated for having to warn customers for downloading infringing content.

There are a number of other emails, including a few that regular Techdirt readers may find especially amusing, including one mocking the "vocal minority" who were complaining that draconian copyright enforcement on things like Game of Thrones downloading might have serious unintended consequences. Update: The "vocal minority" has responded.

Meanwhile, Brandis -- who has also been vehemently defending the NSA -- recently took a trip to the US, in part to explore issues around copyright. Did he meet with copyright scholars or other experts on these issues? Nope. Instead, he met with the director of the Center for Copyright Information, who runs the US's "six strikes" program. Brandis seems to have made up his mind, after being pushed on it by the MPAA, and with no respect at all to facts or reality.

All in all, Brandis appears to be only listening to one exceptionally biased party, even as a very long and thorough review process by the Australian Law Reform Commission (ALRC) found that fair use was important, and that copyright reform needed to be modernized to pay attention to the important rights and uses of the public. But apparently, that all gets thrown out the window because a Hollywood spokesperson has a direct email line to the Attorney General.

Filed Under: alrc, australia, copyright, fair use, george brandis, hollywood, lobbying, neil gane, three strikes
Companies: afact, australian screen association, iinet, mpaa

Yet Another Music Collection Society Corruption Scandal May Lead To Real Copyright Reform In Peru

from the good-signs dept

Over the years, we've covered story after story after story of horrible practices by music collection societies. These organizations, often (though not always) granted a monopoly in countries to collect and distribute money to musicians, all too often seem to be riddled with corrupt practices, sometimes to extreme levels, such as in Spain, where the management of the collection society was accused of diverting nearly half a billion dollars away from actual artists to "friends" of the directors of the organization. While you would hope that these kinds of stories are rare, it appears that when you give one organization the power to collect and distribute money, temptation to cheat is quite strong. Even in organizations, like those in the US, where the practices are more strictly monitored, and generally considered above board, there are widespread stories of collusion and diverting money from small independent artists to big famous artists. A couple years ago, Jonathan Band put together a whitepaper that went through a very long list of examples, showing the parade of horror stories associated with collection societies around the globe.

It appears that we have one more such story to add to the list, but there's at least some chance that some good will come out of this particular horror story. This one takes place down in Peru. Last time we had checked in on Peru, there were efforts under way to put in place very bad copyright legislation, copying the approach in SOPA to place copyright liability on service providers. It looks like that didn't take -- but what has happened is a scandal with that country's collection society, the Peruvian Association of Authors and Composers (APDAYC).

In recent years, the Copyright Office had accumulated several investigations and even sanctions against the APDAYC, but little has this done to make matters change. In early March, there was confirmation that the APDAYC was applying questionable rules for measuring popularity and distribution of royalties among its associates, which persuaded the Indecopi Copyright Commission to order the temporary suspension of the current directors of the company. In response, the APDAYC called the decision “unfair and illegal” and announced that they were willing to exhaust all possible means of defense and had already filed an appeal which has put the decision on hold.

Apparently this has created something of a scandal in Peru, and may have kickstarted some good copyright reforms focused on increasing user rights (too frequently mislabeled as "limitations and exceptions"). In fact, some of the proposals will put things like fair use on par with the ability to exclude granted by copyright law. Some of the proposals are also about reforming how APDAYC works, but it has also opened up the possibility of these other important public-focused reforms:

As a result, there are currently thirteen bills pending that seek to change different parts of Legislative Decree 822, copyright law of Peru. Some of these bills propose changing specific rules on how collecting societies operate, stemming from the allegations in recent months against the APDAYC. Therefore, there is an intent to change the method of electing its governing board, banning re-elections, avoiding direct and indirect conflicts of interest, and the obligation of having to convincingly demonstrate their legitimate representation of works that they charge for.

However, there are also proposals for even deeper reforms. Some proposals include new exceptions and limitations for domestic purposes, non-profit activities, libraries, small businesses and religious activities. Our copyright law, published in 1996, has been changed very few times and has almost always worked in favor of a more rigid and maximalist system. For the first time in eighteen years, there are many bills that seek to put the rights of users at the same level as those of the authors. Regardless of the outcome , the mere discussion of these issues is very necessary and welcome in a country that is moving forward in many cultural aspects and is eager to have better access to culture and knowledge.

So perhaps yet another story of corruption in a collection society will actually help spur beneficial copyright reform, not just cleaning up questionable practices within such an organization, but also increasing the rights of the public that have been yanked away by over-aggressive copyright law.

Filed Under: collection society, copyright, corruption, fair use, peru, user rights
Companies: apdayc

New Case By Notorious B.I.G. Estate May Finally Test Question Of Sampling Fair Use

from the about-time dept

We've written about Bridgeport many times in the past, as the quintessential example of a "sample troll." The company would acquire the copyrights to certain classic songs (sometimes by very questionable means) and then sue various musicians that sampled those classic songs in some manner. While the whole process has been sickening, the most troubling aspect of Bridgeport has to be the horrible ruling in Bridgeport Music, Inc. v. Dimension Films -- a ruling so ridiculous and problematic that it makes copyright nerds angry to even think about it. The district court said that the sampling in that case was not infringement, but the appeals court ruled that sampling was against the law, and made a bunch of claims that have no basis in copyright law. The most troubling line being:

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

The specific ruling was about whether or not the infringement should be rejected as being de minimis -- an integral part of copyright law that has made it clear that a tiny bit of copying is fine (note that this is unrelated to fair use). The court's argument against de minimis use was basically nonsensical:

"Even when a small part of a sound recording is sampled, the part taken is something of value."

But whether or not it's "something of value" is not really the issue. Either way, the ruling was a key one in sending chills through the music world when it came to sampling. The court only addressed de minimis use, leaving aside the question of fair use in sampling, but almost no one has been willing to test fair use when it comes to sampling in court. One general theory is that almost everyone generally has "too much to lose" if the ruling comes out in a particular way. The recording industry, of course, tends to fight fair use at every turn, so even though the RIAA labels are the main beneficiaries of widespread sampling, they've had little interest in expanding fair use jurisprudence (and, in fact, constantly attack fair use as a concept).

So it's interesting to see a new sampling case hit the courts -- and one where both de minimis and fair use is being raised (this time, thankfully, not involving Bridgeport). The case involves the estate of Notorious B.I.G. filing for declaratory judgment that a particular sampling effort does not infringe. The estate is happy to admit that the song, "The What," released in 1994, included a "sample" from the song "Can't Say Enough About Mom" by Lee Hutson. But notes that it was clearly both de minimis and fair use:

On information and belief, the Recording merely samples two non-sequential tones from Can't Say Enough, and it has been adapted, modified, and supplemented substantially from its original form. The use has not violated any valid copyright interest held by Defendant, and it is both de minimis and fair use.

The estate is also arguing that the attempts by Hutson to demand licensing fees is barred both by the statute of limitations and laches (i.e., waiting too long to file the claim). The statute of limitations issue comes up a bunch in music copyright cases, and it's a bit of a mess. Technically the statute of limitations is three years, but there's disagreement as to what that three years really means. Is it three years from the date the song was released? Or three years from when someone found out about the alleged infringement? Or, is it just from today going back three years to cover the "most recent three years" of infringement? It's entirely possible that the court might find that the statute of limitations or laches claims are enough to grant declaratory judgment, so there might not be a ruling about the de minimis or fair use issues. But it sure would be nice to have something other than the crazy Bridgeport ruling to point to when it comes to the question of sampling and copyright.

Filed Under: de minimis use, fair use, lee hutson, notorious b.i.g., samples

Newscasters Reenact Final Four Moments Rather Than Wait For Game Highlight Rights To Clear

from the much-more-enjoyable-than-defending-fair-use-in-court dept

Pervasive and extensive copyright law is damage. Route around it. This team of newcasters did (even though it really didn't need to), resulting in something much more entertaining than the content being withheld.

WCJB TV20 in Gainesville, Fla., couldn't legally show highlights of the University of Florida Gators' win over the University of Dayton on March 29. Instead of waiting for footage rights to recap the game, sports anchor Zach Aldridge recruited his coworkers to recreate the game's biggest moments in an office conference room.

Here are the highlights, as recreated using only classically-trained newscasters, a small hoop and a ball. Even the game-ending tears of a Florida Gators player are reenacted for posterity.

In his introduction, Aldridge claims the station would be unable to play the highlights until the following day unless it "broke a whole bunch of laws." Clearly, the use of highlight clips would be covered under fair use (hello, criticism, commentary and NEWS REPORTING).

But you know what? Screw the restrictive IP climate that surrounds every major sporting event. Why play by those rules? Route around it while highlighting the restrictive stupidity that prevents you from showing viewers what they came to watch. Have that clip go viral (388,000 views and counting), rather than the NCAA-approved clips handed out to local broadcasters like gifts from a begrudging God.

I guess this is what maximalists mean when they say strict IP enforcement encourages creativity and innovation.

(Oh, and don't even think about drinking your beverages in anything but an NCAA-approved sponsor's cups.)

Filed Under: basketball, copyright, fair use, march madness, reenactment, sports