This Week In Techdirt History: February 8th - 14th

from the the-roots-run-deep dept

Five Years Ago

This week, let's start by going global. In 2010, Italy blocked the Pirate Bay (again) while Norway refused to do so. The UK was still grappling with the Digital Economy Bill and its onerous provisions, Australia was trying to make Google censor YouTube videos and Iran was trying to pull the plug on Gmail and offer a state-run email service in its place. Meanwhile in Bollywood, one studio was experimenting with simultaneous theater and YouTube releases. A major Icelandic newspaper banned aggregators, while at the same time the country was announcing plans to become a haven of free speech and journalism. And many countries came together for two things: the Winter Olympics (once again utterly mishandled by NBC) and the ACTA treaty (oh sorry, I mean "executive agreement").

Today, many US cities are competing for a shot at Google Fiber, but it was this week in 2010 that the project was first announced — though we knew it couldn't spur real broadband competition all by itself.

In the world of media, you can guess what was happening, because it's always the same: various companies were struggling to figure things out with varying levels of success and denial. Warner Music was dancing around the obvious fact that hiking the price of music downloads slowed sales growth, and at the same time announcing the end of all free streaming licenses. Meanwhile, the Author's Guild was still fighting over Google Books, and trying to separate itself from groups like the RIAA — while a former music exec was telling them they were more alike than they realize. One author was complaining that ten bucks is an absurdly low price for ebooks, while at the same time new research showed that unauthorized ebook copies boost sales.

Ten Years Ago

Today, the anti-net-neutrality argument that people don't need or want faster broadband and wireless speeds is ludicrous, self-serving and shortsighted — but, admittedly, in 2005 things weren't quite so clear. There was some evidence that people couldn't find enough to do with broadband and were even giving it up for dialup, and the hype over forthcoming 3G was stymied by the fact that a lot of people weren't sure why they needed it. Of course, there was also already something fishy about the cable companies trying to downplay the importance of speed and the think-tanks railing against muni broadband. And today we know how things really played out: having all that broadband penetration led to the development of new, robust applications and services that nobody could have easily envisioned beforehand.

Of course, this was 2005, so plenty of people were still clueless about technology, including lots of politicians — the British parliament even banned Blackberries. People were still trying to foist self-destructing DVDs on the public, and cable television was feebly trying to mimic the internet. But we also saw the emergence of trends that are clear and dominant today: the use of email as a persistent storage and filing tool, the abandonment of landline phones, and the fact that musicians don't make money from copyright (that last one, while clear and dominant in reality, is not necessarily so in the minds of industry folk).

Also this week in 2005: Google Maps was launched, and so was MP3tunes (guess which one is still around!), we saw some of the earliest examples of companies freaking out about negative reviews, and Salon founder Dave Talbot stepped down.

Fifteen Years Ago

In 2000, we see the even deeper roots of even bigger trends. The severity of cybercrime was becoming clear, and DoS attacks were getting lots of attention — but also already often being blown out of proportion with lots of conspiracy theories and rumors of inside jobs attached to various incidents. People were predicting the post-PC era and the death of the newspaper (which still haven't quite arrived) and the coming wireless web (which absolutely has). People liked to toss around bold proclamations about the internet being dead or not dead or whatever the case may be, it was no longer cool to include ".com" in the name of your company, and people were rightfully asking questions about the future of online privacy. We also started noticing the growth of a questionable (and now extremely common) trend in tech startup culture: companies built with the sole purpose of being acquired for a cash-out.

Seventy-Seven Years Ago

If you're a fan of Star Trek, or Dr. Who, or Battlestar Galactica, or anything else from the pantheon of television science fiction both old and new, then you should know that it all started this week in 1938 when the BBC aired the first known science fiction TV program. What's more, the program was itself an adaptation of a monumental piece of sci-fi history: R.U.R., the 1920 Czech play that introduced the word "robot" to the English language and the sci-fi genre.

Filed Under: history, look back

This Week In Techdirt History: February 1st - 7th

from the predictions-and-foreshadowings dept

Five Years Ago

Before the Hachette fight, Amazon got in a conflict with Macmillan over ebook prices this week in 2010. Authors were mad at Amazon, but some in the industry were beginning to realize that change can be turbulent, but still good. Heck, even Rupert Murdoch's daughter acknowledged that piracy can be good. This is in stark contrast to the music duo that claimed it would stop selling CDs until all piracy is stopped (though that might have been a joke). Billboard Magazine took a shot at Techdirt directly, decrying our ideas about CwF+RtB, leading us to explain how it still takes effort and commitment.

Definitely not a joke, however, was the Citizens United ruling, which had just come out, leading us to wonder if a corporation could run for public office. Later in the week, a PR company took that idea a step further.

In Australia, iiNet won its lawsuit against movie studios claiming it was responsible for user infringement, and the ruling offered a great explanation of why ISP's can't be copyright cops. The industry responded by immediately asking for a government bailout and, of course, this story and this fight were far from over. On the flipside, an Australian court this week also decided that Men At Work's Down Under did indeed infringe on a decades-old folk song.

Ten Years Ago

Long before Bing, Microsoft made its first attempt at breaching the world of search this week in 2005 with MSN Search. Unlike some other things launched the same week — like Amazon Prime and OnStar as a standard GM feature — it didn't stick around.

The term "PDA" was in its dying days, with only a handful of people still distinguishing them from smartphones (which some were worried would wear down our thumbs). Video games were exploding beyond the central industry, with fan-made games and mashups getting attention (including attention of the legal variety). Despite regulation, spam didn't seem to be going anywhere soon, perhaps because it was still effective on a shockingly high number of people. And the latest trendy foray into culinary madness was high-tech food.

Also in 2005 this week: the RIAA sued a dead woman with no computer for sharing 700 songs, Google lost a trademark lawsuit over AdWords in France, an accidental button-push almost evacuated Connecticut, and some students cast the future of RFID into question by cracking a bunch of secure chips.

Fifteen Years Ago

There were lots of predictions flying around this week in 2000. The wireless, mobile future was becoming more apparent, and the potential for commerce therein becoming more exciting. That much came true, but so many of the details are off — like how credit cards stick around despite fifteen years of calls for alternatives. Kinda like Usenet, which is anything but mainstream, but also far from dead despite repeated predictions of its doom. And while gaming consoles have indeed evolved into more robust multimedia devices, they haven't replaced PCs the way some expected.

Also this week in 2000: BMG Germany's attempt at CD DRM was a disaster, email marketing was going legitimate, Motorola turned its sights on next-generation devices, and Techdirt saw an unexpected and unexplained traffic bump.

Three-Hundred And Seventy-Eight Years Ago

If you've studied economics, even casually or in passing, you've probably heard of tulip mania — a period of Dutch history in which tulip prices exploded then collapsed. It's generally presented as the first recorded economic bubble in history, and its lessons are still relevant to economics nearly 400 years later. This week marks the critical days in 1637 when the bubble began to pop — on February 3rd, tulip prices hit their peak, and by the 5th they were on the downturn. Spotty record keeping left a gap in the numbers after the 9th, but by May 1st the market had bottomed out.

Filed Under: history, look back

This Week In Techdirt History: January 25th - 31st

from the telecentennial dept

Five Years Ago

This week in 2010, Mike was at the Midem conference in France discussing the future of music business models and good "reasons to buy" to be leveraged by creators. Not everyone got the message: EMI was still freaking out over a Harvey Danger lipdub video, and Blur's manager thought he could stop piracy. One Harvard professor claimed that the success of iTunes made it harder to discover new music, without much to back up this claim.

There was more stupidity beyond the world of music, too: Ubisoft unveiled its new online-only DRM, the Daily Mirror blocked NewsNow's aggregator, and Google found itself unable to depict the Australian aboriginal flag due to copyright. Bev Stayart sued Yahoo (again), Summit Entertainment shut down a Twilight fanzine, and Vision Media TV tried to skirt Section 230 by burying 800Notes in legal fees. Oh, and in one of my own very first contributions to Techdirt, we looked at the ridiculousness of the Vancouver Olympics' brand protection guidelines.

We caught up with Newsday's paywall experiment to find out that, after three months, it only had 35 paying customers. They tried to claim they didn't want people to pay or something like that (it wasn't very convincing). Meanwhile, a Guardian editor explained why paywalls harm journalism.

Finally, this week in 2010 saw the announcement of the Apple iPad, setting off a flurry of speculation about how it would change the publishing industry and our relationship with computers.

Ten Years Ago

Looking back to 2005, you can see the ongoing metamorphosis of the "cellphone" into the "smartphone". Devices were on the rise, with Ford replacing office phones with mobile phones. We also saw an early example of cops targeting people with such recording devices (okay... we were still calling them "cameraphones"). And the return of "texter's thumb".

Naturally this meant some were freaking out about the kids, saying they shouldn't use mobile phones. Some took it a step further, saying that blogs should be banned because they are supposedly a hotbed of pedophiles. Meanwhile, one savvy but dastardly kid was raking in the cash with eBay scams. Another kid found a bunch of errors in the Encyclopaedia Britannica, one more step in making people accept the power and brilliance of Wikipedia.

Oh, and that baby named Yahoo from last week? Turns out that was a fake.

Fifteen Years Ago

Web portals were a big topic in 2000. This week, we discussed the idea of commoditizing portals while Octopus.com experimented with more user customizability. We wondered if these approaches might sacrifice the power of brand, though some were suggesting that Yahoo's brand is its Achilles' heel.

Online advertising pioneer DoubleClick started working on more specific tracking, e-retailers came up with the idea of having sales rep chats pop up while browsing their online stores, and instant messaging was nominated as the next "killer app". Americans officially started liking email more than phone calls, and those who were disappointed about the Y2K bust could get therapy. But if this thirty-year prediction was correct, then we are now only fifteen years away from being able to scan our brains into computers.

Also this week in 2000, hot on the heels of the AOL merger, Time Warner announced its plans to merge music groups with EMI. They would go on to grapple with this plan for several months before giving up in October.

One-Hundred Years Ago

On January 25th, 1915, Alexander Graham Bell and Thomas Watson spoke to each other in the first transcontinental telephone call, from New York to San Francisco. It was nearly forty years after the same two men held the first wire conversation ever across a two-mile stretch between Cambridge and Boston.

Filed Under: history, look back

This Week In Techdirt History: January 18th - 24th

from the control-is-self-defeating dept

Five Years Ago

This week in 2010 was the beginning of the NY times paywall, sparking off huge amounts of discussion online. We weren't convinced. Ultimately, the paywall didn't seem to hurt the newspaper, but it didn't seem to bring much benefit either (or at least not enough for many other publications to follow in its footsteps).

There was a lot of stuff happening overseas five years ago. The UK was hiding ACTA details from MPs, carving out tiny ISP safe harbors for hate speech and, in a high-profile incident, arresting a man for tweeting a joke about blowing up an airport. A Swedish ISP was refusing to give up info under a new law, a proposal in Italy would see all video uploads requiring government approval, and German publishers were (as always) going after Google.

In the US, the FBI was caught breaking the law to gather phone call info from telcos, and Obama quietly made it legal. The president also criticized the patent office for its ridiculous workflow. CBS was letting classic Jack Benny footage literally disintegrate instead of letting fans digitize it, the Songwriter's Guild was trashing net neutrality, and then-boss of the MPAA Dan Glickman announced he would be stepping down. Also, the court in the Jammie Thomas-Rasset case realized how crazy a $1.92-million award was and cut it to $2,250 per song (down from $80,000).

Ten Years Ago

In 2005, plenty of people were freaking out about Wi-Fi security risks. This week, we pointed out that they were probably exaggerating — though we did find at least one reasonable analysis.

Remember the short-lived term "picture phone"? Well, it was pretty common at one point — enough so that the owner of picturephone.com thought that he could sell it for a million bucks. A Maryland lawmaker re-floated the idea for a porn TLD (which now exists, and nobody cares about it). Dell CEO Kevin Rollins made the confusing claim that the iPod is a one-hit-wonder just like Sony's Walkman. We were noting that the biggest issue with the iPod was actually the iTunes store and the fact that you didn't really "own" your music.

We also had a discussion about the biggest obstacle to device convergence: demands for control in the form of DRM, exclusive formats and other pointless fragmentation of content and devices. Even the Sony chief admitted that DRM can hold up innovation. We knew it would be a big problem as broadcasters created digital stores. Meanwhile, Congress was getting ready to consider more intellectual property law, and then-FCC Chair Michael Powell announced his resignation.

Fifteen Years Ago

This week in 2000, Transmeta started making processors. Turns out that was the beginning of a sad story of innovation: by 2007, the company had shifted away from semiconductor production and entirely to IP licensing, then in 2009 its patent portfolio was acquired by, wait for it... Intellectual Ventures.

Long before the New York Times paywall, the LA Times tried charging 20 cents to email a story (amazingly not still a standard business model). People were experimenting with multimedia, so you got things like the virtual newscaster and the print magazines from dot-coms. Techdirt itself got mentioned in print in Inter@ctive Week. Amidst all this, the challenges of online advertising were already becoming clear.

A former Microsoft exec bought a Bowling Association, but if you think that's odd, consider this: in 2000, Microsoft forgot to pay for several domain renewals and let sites like Hotmail lapse. A random guy used his credit card to pay the bill and renew them, and Microsoft gratefully sent him a $500 check for his trouble. This week, the guy decided to auction off the check.

Twenty-Nine Years Ago

On January 19th, 1986, the Brain computer virus was released into the wild. It was the first virus targeting IBM PCs running MS-DOS.

Filed Under: history, look back

This Week In Techdirt History: January 11th - 17th

from the legacy-of-a-merger dept

Five Years Ago

There was a whole lot happening in the piracy wars this week in 2010. Grooveshark was sued again (in what you could easily call "negotiation via lawsuit" by rightsholders), record labels were demanding cash from the Pirate Bay's founders, and the EFF discovered a copyright loophole for the RIAA/MPAA in the FCC's proposed net neutrality rules. The copyright reclamation fight over Marvel characters was getting nasty and Jaron Lanier stepped onto the scene as a get-off-my-lawn type. These things weren't contained to the US, either: in the UK, ministers were pushing the Digital Economy Bill while Scottish schools considered anti-piracy education based on anti-drug campaigns; Dutch anti-piracy group BREIN shut down hundreds of (mostly unused) torrent sites; France's copyright three-strikes enforcement agency was caught using an unlicensed font; and European consumer electronics groups were fighting against proposed copyright levies. Amidst all this, Public Knowledge held World Fair Use Day.

On the patent front, Kodak launched a massive attack on Apple and RIM. Patent lawyer Gene Quinn was claiming that anyone against software patents is anti-innovation, while Union Square Ventures came out in favor of an independent invention defense.

Ten Years Ago

Today, the stats and rankings make it pretty clear that US broadband availability sucks. People were already noticing this all the way back in 2005, but it still wasn't entirely clear that it was such a huge problem at the time. At least it wasn't $400 a month for 10Mbps like one offering in Australia.

Ten years ago, texting was still only just catching on in the US — leading to some people, especially parents of cellphone-bearing kids, being surprised by their bills. Of course, as always, some people were making the evidence-free claim that kids shouldn't use mobile phones, while others were trying to stop cyberbullying with the help of Spider Man.

Also in 2005: A major exploit was found in Windows' DRM, and Microsoft tried to escape responsibility; Apple released the Mac Mini and the iPod Shuffle; IBM freed up 500 patents; Blockbuster made a smart (and self-serving) call for the end of release windows; pop-up ads starting giving way to overlays; and the inventor of the blue LED got a huge payout.

Fifteen Years Ago

Early in the morning on Monday this week in 2000, we heard the murmurs that AOL and Time Warner would be merging. A few hours later, it was confirmed, the media landscape was drastically changed, and the reactions began pouring in.

That was just one of two big events this week fifteen years ago. It's also the week that Bill Gates stepped down as Microsoft's CEO and Steve Ballmer took his place. Meanwhile, in a less high-profile stepping-down, the Pentagon's Y2K expert left the agency.

Oh, and David Bowie opened an online bank. It's not still around.

One Hundred And Five Years Ago

On January 13th, 1910, the first public radio broadcast was transmitted from the Metropolitan Opera House in New York City. It was basically a failure, with the poor microphones of the day failing to adequately capture the live singers.

Filed Under: history, look back

This Week In Techdirt History: January 4 - 10th

from the history-repeating-itself dept

Five Years Ago:

Bono thought that Chinese internet censorship was a good example of how the US should deal with music piracy. Viacom was in the thick of its lawsuit with YouTube, asking the court of summary judgment, but redacting nearly the entire argument because apparently the reasons were secret. Sony Pictures was refusing to send out some screener DVDs to promote its own films for the Oscars, because it was worried about piracy. A Finnish indie label claimed that it wouldn't sign any new bands unless the government magically stopped piracy. After that got some attention the company deleted that statement, and appears to still be releasing music. An analysis of the impact of the leak of the Wolverine film suggested that the leak may have actually helped at the box office. We were, once again, pointing out how there's basically no punishment for filing bogus DMCA claims -- and this was in the days before millions were sent every few days.

France was looking to put in place a right to forget law, while also floating an idea to just tax internet companies to fund record labels. France really, really hates the internet, huh? Meanwhile there was a good proposal in the UK to require copyright holders to have to demonstrate actual damages from infringement (unfortunately, that didn't go anywhere). UFC announced that it was going to sue individual downloaders even though the company knew that the cost of suing was more than any "loss." Speaking of copyright infringement, we wondered how some people could argue that inline linking was infringement, seeing as it's little different than deeplinking, which is legal. Of course, this fight lives on today over embedding. Meanwhile, in Singapore, remote DVRs were declared infringing, the opposite of the Cablevision case in the US.

Some guy sued his neighbors for refusing to turn off their WiFi. The FCC's very first attempt at net neutrality rules weren't faring well in court (just like the second ones, though hopefully they get it right the third time). We were rightly predicting that there was a coming fight between cable TV and the internet. Chris Dixon wrote a great piece talking about how the next big thing will start out looking like a toy -- something that I often still reference today. We discussed how, for all the promise of the Obama administration being the first "internet" Presidential administration, the reality was that once elected, the administration basically gave up on the public that helped it get elected. Cisco was realizing that patenting everything was a waste of time.

We were pointing out how more surveillance makes us less safe (yes, years before Snowden). We were concerned about the TSA sending subpoenas to some bloggers who wrote about some TSA directives.

Ten Years Ago:

As you may have heard, ten years ago I uttered the phrase "the Streisand Effect" for the first time, and that may be the most popular thing I've ever done. Yet another court told the RIAA that it can't subpoena info on downloaders without first filing a lawsuit (something some copyright trolls still don't believe). In response, the BSA asked Congress to change the law to force ISPs to hand over info (thankfully, that didn't happen). Someone conducted a whole study to point out that the entertainment industry was worried about file sharing.

Bill Gates argued that people trying to reform copyright laws to make them less draconian were just Communists, because, apparently, he understands neither the economics of intellectual property, nor Communism. An appeals court panel ruled that ESPN could, in fact, call Evel Knievel a "pimp" (in response, Knievel called the judges "bimbos."). We were already pointing out problems with red light cameras. A law professor "with three doctorates" fell for a Nigerian scam.

Fifteen Years Ago:

This was the week that AOL announced it was buying Time Warner, and the entire internet landscape shifted. But not necessarily in a good way (though I still argue the idea was sound, the execution was dreadful). Fifteen years ago, Steve Jobs also dropped the "interim" part of his "interim CEO" title that he'd taken upon his return to Apple. With the failure of any doom and gloom scenarios post Y2K, some were angry at those who predicted the end of the world. Meanwhile, the SF Chronicle was predicting what would happen if tech stocks crashed (which they did 3 months later).

There was some discussion about the idea of using GPS to automatically slow down cars that were speeding (bad idea). I was excited about MP3 watches at CES (I even had one for a few years, and it was great).

One Hundred And Twenty One Years Ago:

A 47-frame film of Fred Ott sneezing, created by WK Dickson (working for Thomas Edison), was filmed and given a copyright, making it "the earliest surviving copyrighted motion picture" thus kicking off the movie industry's over-infatuation with copyright that lives on to this day.

Filed Under: archives, history, look back

This Week In Techdirt History: December 28th - January 3rd

from the new-year's-edition dept

Five Years Ago:

Movie studios started planning how to stop Netflix from showing their films (which is why Netflix still has a limited selection of streaming movies). This was also the week that Viacom realized that of all the videos it had sued YouTube over, it had actually uploaded over 100 of them itself -- meaning both that they were fully licensed and proving the point that if Viacom can't even tell which videos are licensed and which are not, it's ridiculous to think that YouTube should just magically know which ones are which. Record label Interscope was trying to get people to buy CDs by offering you a copy of Tweetdeck software "for free!" if you bought a CD. Except, of course, Tweetdeck has always been free. The MPAA ratings people gave "It's Complicated" an R rating for showing movie watchers that pot can make you giggle. Nina Paley made a key point in noting that the problem has never been middlemen, but monopolies.

One court totally overreacted and ordered an entire website taken down because of some defamatory comments on them, while another court correctly rejected a lawsuit against a consumer complaint site (ConsumerAffairs) properly noting that Section 230 protected the site from liability over actions of its users. Meanwhile, the Canadian government sought to take down a parody site by the Yes Men, and it resulted in the ISP actually taking down 4,500 sites. Censorship at its finest.

We wrote about how automakers were abusing copyright law to force you to pay more for repairs. FCC boss Julius Genachowski's Facebook account spammed all his friends with a "make money now!" offer. And a court tossed out a silly class action lawsuit against Apple from people who said the iPod resulted in hearing loss.

Finally, we're only looking back five years here, but five years ago we wrote about how the blog MusicAlly was looking back at the major labels' "online strategies" from 2001. They weren't pretty, though the strategies were fairly amusing -- mostly focusing on proprietary formats and DRM. As we noted at the time, all of the strategies were focused on trying to recreate the old retail world where scarcity ruled. That's a really dumb strategy in an age of digital abundance.

Ten Years Ago:

It was (not surprisingly) a bit of a slow week. Minnesota kept trying to tax VoIP companies despite FCC rules saying that VoIP shouldn't be taxed like regular phone lines. Verizon's anti-spam system went haywire and just started blocking all foreign emails (that's one strategy...). Some music labels were apparently experimenting with sneaking spyware into media files (a bit of foreshadowing for the Sony rootkit scandal, which went public the following year).

We were also talking about early ride sharing programs, whether or not the internet was good or bad for social relationships, and musicians who realized it was good to give fans what they want. Oh yeah, we also discussed how you couldn't name your kid with a .com in his name in China.

Fifteen Years Ago:

Our final post of 1999 pointed out that the Y2K bug scare didn't actually result in that much business. Some had been predicting that "fixing" the Y2K bug would be a boost to some tech companies' bottom lines. Wired Magazine, which had bizarrely sold off its entire digital arm, including the wired.com domain name was trying to buy it back -- a deal that wouldn't actually be completed until 2006. ABC was getting (rightfully so) nervous about dot com bubble startups buying Superbowl Ads, asking those companies to pay cash up front. And just to show you how different things were in 1999, people were excited about the fact that DVDs were catching on, after some had expressed skepticism that they'd find a real market. Things have changed....

Thirty One Years Ago

AT&T was broken up as a monopoly by the US government. And, today, it's almost all the way back to a monopoly. Watch that pendulum swing...

Filed Under: archives, history, look back

How Copyright Forced A Filmmaker To Rewrite Martin Luther King's Historic Words

from the copyright,-paraphrasing-and-the-road-to-truthiness dept

Among the most powerful moments of Selma, the new film about the march Martin Luther King, Jr. led in 1965 in support of voting rights for African Americans, are the speeches, sermons, and eulogies King delivered during that tumultuous period. However, the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate's aggressive stance on copyright has literally forced the re-writing of history.

According to the Washington Post, the King estate licensed the film rights to King's speeches to DreamWorks, with Steven Spielberg producing any resulting films. DuVernay said that she never even asked for the rights to King's speeches "because we knew those rights are already gone, they're with Spielberg." She added that she knew that there were strings attached to the rights: "with those rights came a certain collaboration." In other words, the King estate uses its control over the copyright to control how King is portrayed. The Post article suggests that this control has prevented the making of a feature film about King—until now.

In the summer of 2013, when the nation was commemorating the 50^th anniversary of the March on Washington, the King estate refused to allow broadcasts of King's "I Have a Dream" speech. At the time, I wrote a blog post questioning the policy justification for one of the most important speeches in American history remaining under copyright 50 years after its delivery, and 45 years after the death of its author. I argued that King did not need the economic incentive provided by copyright protection to write the speech or deliver it so compellingly. I further asserted that copyright protection was not necessary to ensure that the speech remained in distribution 50 years after the March on Washington. I also responded to the argument that royalties from King's speech have financed the work of the Martin Luther King Jr. Foundation promoting civil rights and social justice by noting that funding valuable institutions is not the purpose of copyright. Additionally, the cause of civil rights arguably could be better advanced by the broadest possible dissemination of his speech, rather than by exploiting it to generate revenue for the Foundation.

The same arguments can be made with respect to King's speeches surrounding the march in Selma. King obviously was not motivated by financial gain when he wrote those speeches. Further, copyright protection was not necessary to ensure that the speeches remained available in the decades since. To the contrary, copyright protection prevented the derivative use of those speeches in the film, thereby potentially depriving new audiences of King's message.

The Washington Post's review of Selma suggests that the director Ava DuVernay made a virtue of necessity in response to her inability to secure the rights to the speeches:

"in a brilliant work-around DuVernay approximates [King's] words, allowing viewers to focus on their meaning rather than how literally Oyelowo reproduces them." Likewise, the New York Times' review observes that DuVernay turned her lack of permission to use the speeches into "a chance to see and hear [King] afresh." In the film, King is "less an orator than an organizer" and is "a man trying to navigate his public role, his private life, and the expectations of his allies and friends."

Proponents of long copyright term might point to these reviews as proof of the copyright system working properly. Denied the ability to quote King directly, DuVernay was forced to create her own expression—paraphrases of King's speeches—and her own interpretation of King's life.

At the same time, the Times recognizes that the inability to quote King directly "may be a blow to the film's authenticity." And this is a serious problem, particularly in a world where people are far more likely to learn history from a biopic than from a textbook. The director of a biopic already must compress complex events that unfolded over months (in the case of Selma) or years (in the case of the Alan Turing biopic, The Imitation Game) into two hours. The director must also add dramatic tension in order to sustain audience interest. (For example, Joe Califano, then a member of the Johnson Administration, has accused DuVernay of falsely portraying a series of conflicts between Johnson and King over voting rights, when in fact they agreed with the both the strategy and the tactics for achieving this objective.) The inaccuracies created by this compression and invented dramatic tension should not be compounded by concerns of potential copyright infringement liability.

Fair use is the obvious solution to the problem of copyright constraining the presentation of historical events. In Bouchat v. Baltimore Ravens, discussed in this post, the Fourth Circuit found the National Football League's use of the "Flying B" logo in highlight films to be transformative because the logo was used "as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers."

The court further stated:

"Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts."

Similarly, in Fox News Network v. TVEyes, discussed in this post, the court concluded that TVEyes' inclusion of clips in a search engine for broadcast television was a transformative use. The court found that "TVEyes' message, ‘this is what they said'—is a very different message from Fox News'—‘this is what you should know or believe.'"

The primary purpose of including King's speeches in the film Selma would be to inform its viewers of what King said and the impact it had on his audience. Although Ava DuVernay almost certainly believed in what King said, and wanted her viewers to believe it too, that purpose would be secondary to educating her viewers about King and his impact on the course of history.

Based on TVEyes and Bouchat, DuVernay would have had a strong fair use defense had she used King's actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate. While it appears that DuVernay remained true to both the style and content of King's speeches, the next director might not be so scrupulous. Indeed, an inept paraphrase of one of King's speeches at the Martin Luther King, Jr. Memorial in Washington, D.C., made him sound, according to Maya Angelou, "like an arrogant twit." The paraphrase subsequently was removed.

The paraphrasing of Martin Luther King, Jr. puts us on the slippery slope to truthiness. The King estate should be far more worried about people paraphrasing King than quoting him accurately.

Reposted from the Disruptive Competition Project

Filed Under: ava duvernay, copyright, culture, fair use, history, martin luther king jr., mlk estate, paraphrasing, selma, speeches

This Week In Techdirt History: December 21 - 27

from the history-at-christmas dept

Five Years Ago

A federal Anti-SLAPP law was introduced in Congress, and went nowhere. It's something we desperately need, and it's ridiculous that Congress hasn't taken up the issue. Various online publications were still whining about Google sending them traffic. Meanwhile, as the recording industry was whining about piracy, we noted that it would likely be blaming something else within a decade (I think streaming sites are the current obsession). IsoHunt lost a key ruling in court, saying that the site "induced" infringement by showing what was popular -- and also because the court took some statements by the site's founder out of context.

China took unending Hollywood-funded pressure to ramp up its efforts to stop copyright infringement... and used it as an excuse to censor more of the stuff on the internet that the Chinese government didn't like. Meanwhile, a German court decided that TV schedule information was covered by copyright. Demi Moore's lawyers thought that it was defamation to suggest that her images had been photoshopped. And the NBA was fining players for happily tweeting about victories too soon after the game was done.

There are two other interesting stories, just because nearly identical issues have cropped up this week, five years later. First, we had a discussion on whether or not sites should be forced to take down content if a court rules against the user -- if the user can't be found or is unable to do anything about the content. The sites are protected by Section 230 and don't need to do anything -- but some are suggesting otherwise. In fact, a judge in NY was suggesting that a Right To Be Forgotten might be a good remedy in this situation. The second was a story out of Chicago, done by the Chicago Tribune, noting that red light cameras seemed to be leading to more accidents. We've been reporting on this exact thing for many, many years, but this past week the very same Chicago Tribune reported on the very same issue again after doing a more detailed look at the numbers. Turns out its story from five years ago still held true: red light cameras increase crashes.

Ten Years Ago:

Do you remember when Cablevision thought that it was going to get into the satellite TV game and compete with DirecTV and Dish? It was called Voom and it failed miserably. Blockbuster (remember that company?) was realizing that Netflix was real competition. During this holiday season -- but years before smartphones were really a thing -- we were discussing the issue of bringing your email on vacation.

Despite all the fears about kids learning "texting speak," studies were showing that kids can understand the context and know they have to write differently in formal settings rather than sending a text to a friend. And yet some people still don't believe this. Trust me: kids are smarter than you think. Finally, we were learning about more and more documentaries that could never be shown again, because original licenses for archival footage and/or music wouldn't allow them to ever be shown again.

Fifteen Years Ago:

While most people were correctly predicting that the shift from 1999 to 2000 would not result in the Y2K bug ending the world, MTV was still pulling a publicity stunt and sending six people into a bunker to repopulate the world after everything fell apart. I wonder if they're still down there. Speaking of bad predictions, some were saying that Amazon.com was finished. In 1999. Oops. But, more seriously, online shopping was having some trouble delivering Christmas gifts on time.

Fifteen years ago, there were some early attempts to monitor driving traffic by looking at mobile phone data. The idea seemed perplexing to us -- and we wondered about the privacy implications. Of course, fifteen years later, we're all tracked everywhere we go... but we have pretty decent information about the traffic when we're driving. Finally, in those early days on the web, you could still put up fake job listings and convince people they were interviewing for a job at CBS.

Thirty Two Years Ago

Time Magazine named "the personal computer" as its "Person of the Year" -- the first time it went to a non person.

Filed Under: archives, history, look back

This Week In Techdirt History: December 14th - 20th

from the digital-wrong-management dept

Five Years Ago

Seems like there was lots of news about DRM this week in 2009. Cory Doctorow discussed how difficult Apple made it to publish a DRM-free audiobook, Blu-ray introduced the idea of "managed copies", a Microsoft Office DRM bug locked some users out of their own documents, Sony stood up in favor of expensive, DRM-laden ebooks, and film DRM threatened to prevent Avatar from being shown in 3D in some theaters. The only voice of reason was David Pogue, who pointed out that DRM-free ebooks boosted his sales.

France was a land of contradiction this week. Avid copyright defender and three-strikes architect Nicolas Sarkozy was caught infringing on copyright for a third time. Meanwhile, he also announced plans to spend over a billion dollars digitizing books — while a French court was ruling that Google's book scanning project violates copyright. Well, that all makes perfect sense.

But intellectual property madness is, of course, global. This week in 2009 also saw North Face file suit against South Butt, ASCAP start demanding license fees from venues where people play Guitar Hero, Google face complaints from the estate of Philip K. Dick over its then-upcoming Nexus One phone, the Judiciary Committee summoned the CEO of Justin.tv to defend himself on the subject of live sports piracy, Vimeo was sued over lip dub videos, and the FBI arrested the guy who leaked Wolverine in one of the highest-profile such incidents.

Ten Years Ago

As regular Techdirt readers know, we don't care about the fact that there are some sites out there that scrape and copy tons of our content, and such sites have been around for a long time. In 2004, however, we were especially baffled to find one being used to promote house cleaning services. Today, such PageRank-scamming setups are commonplace and instantly dismissed as stupid, but ten years ago they seemed really weird.

In the world of spam-law, this week in 2004 saw two notable events: Maryland's anti-spam law was ruled unconstitutional, while the UK's version of CAN-SPAM was proving totally ineffective.

Also in 2004: doctors weren't so sanguine about buying kidneys online, ICANN was approving more pointless TLDs, the MPAA started going after torrent trackers, a Canadian court struck down a copyright tariff on iPods (while the world realized that MP3 players aren't just for kids), and Blockbuster continued its long, futile fight against Netflix by ditching late fees.

Oh, and long before all the DRM action of 2009, the same things were stirring: Sony unveiled an exciting new DRM for CDs.

Fifteen Years Ago

During these few years around the turn of the century, there was a seemingly endless flurry of versions of the Windows operating system. This week in 1999 marked a major transitional milestone: the completion of Windows 2000, which would be released a few months later, and was the last version of Windows before XP commenced a new era. Meanwhile, in an early earth-tremor foreshadowing modern cloud computing and things like ChromeOS, MyWebOS was working on the in-browser operating system.

Today, domain and trademark disputes online are almost guaranteed to get pretty nasty, and domain-squatting for the sake of extracting cash is fairly common practice — but in 1999 it was still somewhat unexplored territory. This week, an 11-year-old kid in Britain registered waterfordcrystal.com as a joke. The company's response? First it said it didn't care, then shortly afterwards decided to buy the domain for the price of one college education.

There was a bizarre piece of data this week in 1999, suggesting that print newspapers weren't losing readers to online. As we correctly mused, this just meant the real generational trend hadn't fully kicked in yet. Meanwhile, the most exciting nascent venue for communications was the wireless web, which was still struggling along with WAP and WML. People were building communities and HP was even working with Swatch to try to build a smartwatch way before its time.

Also, in a bit of sad news, December 13th, 1999 marked the death of Catch 22 author Joseph Heller.

Fifty-Six Years Ago

This week on the Techdirt Podcast, we had an episode about the possibility of satellite-based internet access. Well, long before the internet, on December 18th, 1958, the world's first communications satellite was launched in a direct response to the Soviet Sputnik satellites. On board the SCORE satellite was a tape-recorded Christmas message from President Eisenhower, which it broadcast to the world via short-wave radio.

Filed Under: history, look back