NYU Law School's Video Teaching Copyright Completely Flummoxed YouTube's Copyright Filters

from the not-this-again dept

You may recall a few years back that Harvard Law Professor William Fisher had one of his lectures about copyright taken off YouTube by a bogus copyright claim from Sony Music. It appears that something new has happened to the Engleberg Center at NYU's School of Law, in which a panel discussion on "proving similarity" in copyright law (a big, big topic ever since the awful Blurred Lines decision came down), was taken down itself. It wasn't just taken down by a single bogus claim, but a whole bunch of bogus claims ("whole bunch of bogus claims" is my band's name, by the way).

The folks at NYU Law know the law (duh), and pointed out that the use here was unquestionably fair use (short clips, used in an educational setting, etc.) and filed various counternotices. And yet, Universal Music said "fuck that" and refused to release the claim:

Now, it's especially interesting that Universal Music Group was the one who refused to back down, given that it was subject to one of the few cases in which it was determined that a copyright claiming entity must consider fair use before making a claim. But, of course, the court also made it clear that if an entity (such as UMG) chose not to do that, there really was no real punishment.

As the NYU folks note, it was unclear if allowing the copyright claim to remain would result in multiple strikes against its account, given that there were multiple claims made on this one video. The only way the issue got resolved... is that NYU was able to raise enough a stink within YouTube:

This would have been a dead end for most users. Unable to understand how the already opaque dispute resolution process might impact the status of their account, they would have to decide if it was worth gambling their entire YouTube account on the chances that their some combination of YouTube and the rightsholder would recognize their fair use claim.

Since we are the center at NYU Law focused on technology and innovation, it was not a dead end for us. We reached out to YouTube through private channels to try to get clarity around the copyright strike rules. While we never got that clarity, some weeks later we were informed that the claims against our video had been removed.

While some may just dismiss this story as yet another wacky case of copyright gone wrong (or, "yet another anomaly"), it highlights a bunch of key points, including the difficulty in fighting back even if you know things are fair use. But, most importantly, it again highlights the serious problem with the EU's Copyright Directive, which requires these kinds of problematic filters to be on basically every internet platform imaginable, massively ramping up how often we're likely to see these kinds of bogus attacks on speech.

Anyway, since NYU was able to get the video put back up, we can now all watch it -- and I'd encourage you to do so. However, it's a reminder that most people hit by bogus copyright strikes probably don't have the connections to get their videos put back up.

Filed Under: automated filters, copyright, education, fair use, strikes, takedowns
Companies: nyu, umg, universal music group, youtube

Court Allows Chooseco's Lawsuit Against Netflix Over 'Bandersnatch' To Move Forward

from the pro-choice dept

You will recall our previous posts about Chooseco, the company behind those "Choose Your Own Adventure" books from the 80s, and its lawsuit against Netflix. At issue is Netflix's Black Mirror iteration entitled Bandersnatch. The episode essentially runs a choose your own adventure scenario in streaming film, with the viewer being able to control the outcome of the narrative through choice. In addition, Netflix marketed the episode with references to it being a "choose your own adventure" style story. In addition, the protagonist in the episode refers to a book that is the basis for a video game he's creating as "a choose your own adventure book." Predictably, Netflix petitioned the court for a dismissal, arguing that the First Amendment allowed it to make the references it did in the production, so long as it wasn't purposefully confusing the public with its use of the "choose your own adventure" mark. In the conclusion of that post, we wrote this:

Netflix would like the court to acknowledge that pretty much everything Chooseco is complaining about that is included in Bandersnatch is not protectable, and that pretty much all the rest is protected as expression and art by the First Amendment. Frankly, it's hard to imagine how the court could argue differently, although there's always the chance the court might decided that these are issues best decided in the trial phase.

Which, sadly, is exactly what happened. The court's decision (embedded below) takes the reader on quite the journey, where it essentially does a full analysis on the test for using trademarks in artistic works. That test consists of two components: is the use in an artistic work and, if so, is that use purposefully misleading the public. Chooseco argued that because Netflix made money off of Bandersnatch, it can't be considered purely artistic. The court points out that's besides the point, since precedent exists for partially-artistic, partially commercial works to be afforded equal protection. In addition, the threshold for the use of a mark being artistically relevant is, again by precedent, literally anything other than entirely irrelevant. The court goes on to note that Bandersnatch's use definitely does have artistic relevance given the context of the episode as a whole. The decision concludes:

"Here, the protagonist of Bandersnatch attempts to convert the fictional book 'Bandersnatch' into a videogame, placing the book at the center of the film’s plot," states the ruling. "Netflix used Chooseco’s mark to describe the interactive narrative structure shared by the book, the videogame, and the film itself. Moreover, Netflix intended this narrative structure to comment on the mounting influence technology has in modern day life. In addition, the mental imagery associated with Chooseco’s mark adds to Bandersnatch’s 1980s aesthetic. Thus, Netflix’s use of Chooseco’s mark clears the purposely-low threshold of Rogers’ artistic relevance prong."

That sure does sound like the court thinks Netflix's First Amendment claim is a good one. And, yet, as happens so many times with courts at this stage of proceedings, deference is given to plaintiffs, as well as the larger trial process and the need for discovery to be performed. For that reason, the court sets its own analysis aside and allows the trial to move forward.

"Here, Chooseco has sufficiently alleged that consumers associate its mark with interactive books and that the mark covers other forms of interactive media, including films," continues the decision. "The protagonist in Bandersnatch explicitly stated that the fictitious book at the center of the film’s plot was a 'Choose Your Own Adventure' book. In addition, the book, the videogame, and the film itself all employ the same type of interactivity as Chooseco’s products. The similarity between Chooseco’s products, Netflix’s film, and the fictitious book Netflix described as a 'Choose Your Own Adventure' book increases the likelihood of consumer confusion."

The court reached the same conclusion on Netflix's claim that its use was Fair Use. Essentially, the court has decided that Chooseco's suit is worth at least the discovery phase of a trial.

Again, this isn't entirely surprising, even if it is certainly frustrating. Trademark law cannot supersede the First Amendment, and even this court seems to think that Netflix is on solid footing with its First Amendment claim. For anyone to argue that a franchise like Black Mirror using the term "choose your own adventure" is going to confuse the public into thinking Chooseco is somehow involved is pretty silly. And, yet, Chooseco gets to the discovery phase of a trial over it.

Filed Under: art, bandersnatch, choose your own adventure, fair use, trademark
Companies: chooseco, netflix

Copyright Troll Lawsuit Over Duct Taped Banana Picture

from the weak-copyright dept

Back in December, it's likely you heard the wacky story about the "art installation" at the Art Basel gallery in Florida of a banana duct taped to the wall, which sold for $120,000. You may have also heard about how someone stepped in and ate the banana, but the original purchasers were still happy, despite the recognized absurdity of the whole thing. Anyway, because it's been a few months since we last had a story about copyright and bananas, we need to tell you that a copyright lawsuit has been filed against the owners of the website ClickOrlando, claiming that they used a photograph of the duct taped banana taken by John Taggart without licensing it in its article about the artwork. The lawsuit was filed by frequently in trouble copyright troll, Richard Liebowitz. The lawsuit was first reported by Law360, though it's behind their paywall.

Given Liebowitz's role, I immediately wondered how legit the lawsuit was. It is certainly possible that a news org might infringe on someone's copyright, though news organizations can frequently claim fair use under the law, especially since "news reporting" is one of the defined categories for fair use. After seeing the actual exhibits, I'm actually left wondering whether or not Taggart's copyright is valid at all. Straight from the complaint's Exhibit B here is the supposedly infringing use:

So... I have questions. First, how is Liebowitz sure that this is Taggart's photo? The banana was on display for a few days and tons of people were able to come by and photograph it. The images do look the same, so it could be. The banana coloration certainly looks the same, though I imagine that would be true for lots of people who took a picture around the same time.

But, still, remember that copyright is only supposed to cover the creative input of the photographer. Often that includes things like the positioning, framing, lighting, etc. But, in this case, how much of that came from Taggart vs. the gallery? Obviously the artwork was set up in the gallery. Taggart had no say in the positioning of the banana. The lighting was also done by the gallery. So what is the creativity here? Taking a photo head on? How much of the wall is included in the background? It is difficult to see how those choices are deserving of much in the way of copyright. That is, even if there is a copyright here, it would be a very, very thin layer of copyright. On top of that, it would seem that the site would have very strong fair use arguments. Beyond the fact that it was used for reporting, and beyond the fact that whatever copyright interest Taggart might have would be quite weak, the fact that tons of visitors to the gallery took similar pictures of the banana would suggest that Taggart's market was limited, and thus this use would not have much of an impact on the wider market.

While this lawsuit might not be quite as egregiously bad as some of Liebowitz's other lawsuits, it's still pretty bananas.

Filed Under: banana, clickorlando, fair use, john taggart, richard liebowitz

2nd Circuit Appeals Court Upholds Drake Sampling Fair Use Victory, But Doesn't Think It's Useful For Anyone Else

from the only-real-music's-gonna-last dept

Two and a half years ago, we wrote about a nice fair use victory for Drake with regards to a track that he had sampled. As we noted in that post, it is stunning how bad courts have been in determining whether or not sampled music is fair use -- with a couple of famously preposterous rulings on the book, including one where the judge seemed more focused on giving biblical justifications for his rulings, rather than Constitutional ones. Still, in the age of Blurred Lines-like decisions, and the influx of similar lawsuits over mere inspiration, it seemed unlikely that we'd ever get a clean ruling on whether or not certain types of sampling -- such as those that use tiny bits or that alter the sample significantly -- were fair use. Yet here we are.

Thankfully, the 2nd Circuit appeals court has now upheld the lower court's fair use finding, with a quick and to the point ruling -- though they made it a summary order, which means that the panel of judges "believes that no jurisprudential purpose is served by" the order, and thus it shouldn't be cited in future cases. That's actually quite disappointing, given how few cases there have been that actually ruled on the fair use of sampling.

That said, as I noted in the original post, however, the details here are at least somewhat specific, which might explain the court's reasoning in making it non-precedential. Those details highlight why this is a unique case. To explain those details, I'm going to first repeat what I wrote about the background of the original case, because it's important, before getting into the new ruling.

The details here are... rather specific. Drake's song Pound Cake / Paris Morton Music 2 opens with a slightly altered, but clear "sample" of famed jazz artist Jimmy Smith's Jimmy Smith Rap. You might think that the Jimmy Smith Rap is a rap song, but it's just Jimmy Smith talking (it appears extemporaneously) about the fun he and some others had making the album Off the Top. But the recording got included on the album as a separate track. It's not a song. It's just Jimmy Smith talking. The Drake song uses a large chunk of the Jimmy Smith Rap unchanged... but does make a few small edits, including changing Smith from saying "Jazz is the only real music that's gonna last. All the other bullshit is here today and gone tomorrow" to just saying "Only real music's gonna last. All that other bullshit is here today and gone tomorrow." Apparently the Jimmy Smith estate wasn't too happy with the changed meaning.

But here's the oddity: Drake's label licensed that track. So everything should be fine, right? Wrong. You forgot: music licensing is a swampy mess of insanity and patched together weirdness. As we've discussed elsewhere, when using a song, there are multiple different licenses you might need to get. You have to do one thing to license the sound recording, but something else entirely to license the "composition." The theory there is that one license pays the musicians and another pays the songwriters (though, in reality, it's often middlemen who get the money). Here, it seems that Drake's label didn't license the "composition" to pay the "songwriter." And your first reaction might damn well be "what songwriter? there's no damn song!" And you'd be right. Hell, even Jimmy Smith never registered the copyright as a composition. It was only his estate that registered the copyright 31 years after the not-really-a-song was released and only after they heard the Drake song and decided they didn't like it at all.

So, then, after registering the copyright on the composition (and even though the sound recording was properly licensed), the Jimmy Smith Estate sued Drake. And it's this that's found to be fair use.

Frankly, I still think it's even more convincing to state that there's no composition copyright here because there's no song. It's just him talking extemporaneously, and there's already a copyright on the recording itself. However, for whatever reason, the case focused on a fair use argument, and as the appeals court notes, it clearly supports a ruling that this sample is fair use. On the first factor, they find the use clearly transformative, in part because the minor edit of the clip changes its meaning:

The first factor supports fair use because the use was transformative. A work is transformative when it “uses the copyrighted material itself for a purpose, or imbues it with a character, different from that for which it was created.” ... “Pound Cake” does just that. The message of the “Jimmy Smith Rap” is one about the supremacy of jazz to the derogation of other types of music, which—unlike jazz—will not last. On the other hand, “Pound Cake” sends a counter message—that it is not jazz music that reigns supreme, but rather all “real music,” regardless of genre.... Beyond the text of the lyrics themselves, “Pound Cake” situates its sampling of approximately thirty-five seconds of the “Jimmy Smith Rap” at the beginning of an approximately seven-minute-long hip-hop song in which Drake and Shawn Carter, professionally known as Jay-Z, rap about the greatness and authenticity of their work. Through both the alteration of the “Jimmy Smith Rap” and the rest of the rap’s lyrics, “Pound Cake” emphasizes that it is not the genre but the authenticity of the music that matters. In this manner, “Pound Cake” criticizes the jazz-elitism that the “Jimmy Smith Rap” espouses. By doing so, it uses the copyrighted work for “a purpose, or imbues it with a character, different from that for which it was created.”

The analysis of the second factor -- the nature of the copyrighted work -- perplexes me again. In both the lower court and the appeals court they actually say this leans against fair use. But, again, the fact that this is not a song, that there is no "composition" per se (and that no one registered the copyright on it until much, much later) would all seem to suggest that the "nature" of the work deserves minimal copyright protection and thus leans towards fair use. But here, the court basically says that this factor leans against fair use, but it's not that important so we'll just move on:

We need not spend much time on the second factor, the nature of the copyrighted work. This factor “has rarely played a significant role in the determination of a fair use dispute,” and when a work is transformative, the factor may nonetheless support fair use.... The district court found that the second factor weighs against a finding of fair use here. This factor is of “limited usefulness,” however, where, as we have determined applies here, “the creative work of art is being used for a transformative purpose.”

The third factor, on how much is used, again supports fair use:

The third factor too supports fair use. This factor looks at “whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying.”.... We have been clear, however, that “the law does not require that the secondary artist may take no more than is necessary.” Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013). “The secondary use must be permitted to conjure up at least enough of the original to fulfill its transformative purpose.” Id. (brackets, internal quotation marks, and citations omitted). Here, the amount used by Defendants is reasonable. While “Pound Cake” borrows language from the “Jimmy Smith Rap” detailing the production process for Off the Top, this was necessary to emphasize its own message: that the ultimate attribute of music is its authenticity, not the production process that created it.

And, finally, the 4th factor, regarding the impact on the market, again easily supports fair use:

Finally, the fourth factor also weighs in favor of fair use. “The final statutory factor considers the effect of the use upon the potential market for or value of the copyrighted work, focusing on whether the secondary use usurps demand for the protected work by serving as a market substitute.”... In the case at hand, there is no evidence that “Pound Cake” usurps demand for “Jimmy Smith Rap” or otherwise cause a negative market effect. “Pound Cake,” a piece by a hip-hop artist about rap and hip-hop music, appeals to a much different audience than does “Jimmy Smith Rap,” which was a piece by a jazz musician on a jazz album about jazz music.... Nor is there evidence of the existence of an active market for “Jimmy Smith Rap,” which is vital for defeating Defendants’ fair use defense.

And thus, fair use prevails. It's always nice that fair use prevails, but it's disappointing that the court felt that this ruling should remain non-precedential. Contrary to their belief, having good, clear fair use victories at the appellate level is always useful for other cases.

Filed Under: 2nd circuit, composition, copyright, drake, fair use, jimmy smith, precedent, sampling

Disney's Licensing Dogs Charge Underserved School District A Third Of Fundraiser Money For Playing 'Lion King' DVD

from the robbing-them-twice dept

When it comes to posts about copyright issues, I cannot say for certain that Disney is the most frequent commonality in those posts, but it just... feels like it's probably true. After all, Disney has played such a heavy role in making copyright the over-extended, profit-driven, legal-cudgel bastardization of what copyright law was originally meant to be. Mickey Mouse himself is cited as the reason for copyright extensions in the past, and the company has been notorious in its zealous jealousy in protecting its copyrights.

But allowing your licensing partners to charge a school district for a third of the funds from a school fundraiser just because a parent brought a Lion King DVD to keep the kids happy during the event? That's a bit much, even for Disney.

When an elementary school in Berkeley, California, hosted a "parent's night out" fundraiser, they didn't think playing the 2019 remake of "The Lion King" would do anything besides keep the kids happy. That was until Emerson Elementary School received an email from a licensing company Thursday -- more than two months after the event -- saying they had to pay $250 for illegally screening the movie.

"One of the dads bought the movie at Best Buy," PTA president David Rose told CNN. "He owned it. We literally had no idea we were breaking any rules."

It's something we talk about all the time. Because of the twisted pretzel that copyright laws have become, it is quite possible for well-meaning folks to infringe upon copyright without having any idea that they're doing so. That cannot possibly be what the framers of copyright law had in mind when they created it. Movie Licensing USA, Disney's partner for managing licensing agreements, extracted $250 from the school's $800 fundraiser for showing the movie to kids, and informed the school that they would have to pay the same amount for any future showings.

The parents and district paid, but weren't happy about it. Because the universe is not without a sense of irony, part of the need for the fundraiser is, according to the district, the sweetheart real estate deal Disney got from California for the property it owns.

Berkeley City Council member Lori Droste, who is also a parent at Emerson Elementary, believes Disney is being unfair.

"There was an initiative passed in 1979 called Proposition 13 which casts the property tax on all land, and so Disney's property tax rates are at 1978 values which translates into millions upon millions of dollars a year that Disney is not paying," Droste told CNN.

"Because of that, our schools are now extremely underfunded," she added. "We went from the '70s being among the top education systems in the US to one of the lowest."

So, to summarize, Disney benefits from a government deal and avoids paying taxes, which fund school districts, and then sent the licensing police to the doors of a fundraiser for one of those school districts to take $250 out of the coffers. At this point, it's almost like they're trying to be one of their movie villains.

Filed Under: california, copyright, fair use, fundraiser, licensing, lion king, schools
Companies: disney

CBS Gets Angry Joe's YouTube Review Of 'Picard' Taken Down For Using 26 Seconds Of The Show's Trailer

from the make-it-no dept

Joe Vargas, who makes the fantastic The Angry Joe Show on YouTube, isn't a complete stranger to Techdirt's pages. You may recall that this angry reviewer of all things pop culture swore off doing reviews of Nintendo products a while back after Nintendo prevented Vargas from monetizing a review of a a game. The whole episode highlighted just how out of touch companies like Nintendo can be with this sort of thing, given how many younger folks rely on reviews like Vargas' to determine where they spend their gaming dollars. Coupled with the argument that these commentary and review videos ought to constitute use of footage as fair use and it's hard to see why any of this was worth it to Nintendo.

Or CBS, apparently. CBS recently got Angry Joe's YouTube review of 'Picard' taken down, claiming copyright on the 2 thirteen-second videos of the show's publicly available trailer that Vargas used in the review.

This is normally where some folks would suspect that ContentID or some automated system saw the images, resulting in an automated DMCA notice. Except that, as Vargas points out in his Twitter post, this was a manual block. Somebody at CBS saw Vargas' use of the footage and manually requested that the video be taken down on copyright grounds.

And that's crazy. First, the use of clips like this to discuss a review or critique of content is squarely within the grounds of fair use.

Based on the screenshot, it appears that Vargas was discussing the clips while they were on-screen and Vargas argues that this should constitute fair use – a provision in copyright law that allows copyrighted material to be used without permission from the copyright holder for transformative purposes such as commentary and criticism.

Add to that the clips were from the publicly available trailer footage and this makes even less sense. The trailers are out there for anyone to see. Hell, the entire point of trailers is to be widely disseminated to entice interest in the show. Blocking their use would seem to be at odds with the marketing goals of CBS.

And, yet, here we are, with CBS taking down a video for using trailer footage in a way that is clearly fair use. But some say YouTube doesn't have a copyright enforcement problem? Please.

Filed Under: angry joe, censorship, copyright, fair use, picard, reviews, trailer
Companies: cbs, youtube

Why Is The NYC MTA Going After A Random Artist Who Created A Different Subway Map For Infringement?

from the seriously? dept

It's been a while since we last wrote about the New York City Metropolitan Transportation Authority (MTA), but in the past, it's always been for incredibly stupid reasons. There was the time it claimed it owned the facts of its schedule and went after someone who created a better scheduling app. There was the time it claimed that its "unlimited rides" card really meant no more than 90 rides. We didn't write about this other one, but a few years back, the MTA actually sued a bagel place for calling itself "F Line Bagels." And now we have it filing an incredibly questionable copyright takedown notice over someone making a nicer subway map.

The NYC Subway map is fairly iconic, but that has never stopped people from making their own variations. Indeed, making new subway maps of NYC and many other metropolitan train systems is something many people do (there's even a -- somewhat addictive and amazingly fun -- subway map design simulation game called Mini Metro). Jake Berman is one of many people who redesigned the NYC subway map, after getting upset with the official MTA subway map. His map is consider so useful compared to the official one, that the Wikipedia page for the NYC subway map shows his directly next to the official map:

That's Berman's map on the left there. And he has it in a few places, including Etsy. And for unclear reasons, the MTA sent a copyright infringement takedown notice over the map. The Vice article, linked above, includes one of the best quotes ever about this kind of thing from copyright lawyer Thomas Kjellberg:

“The basic question [for the MTA]” offered Thomas Kjellberg, an intellectual property attorney with the law firm Cowan, Liebowitz, and Latman, “you guys really give a shit?”

There are obviously strong fair use arguments here, as well as strong arguments about whether or not anything in Berman's map is actually infringing. While the MTA claims that his map copies a specific style of NYC subway map, the so-called Vignelli map, the currently used version of the Vignelli map from the MTA, was actually created after Berman's map was created:

“Yes, there are minor differences between your map and the MTA map,” Freundlich wrote in his email. “But given your access to the MTA map on the MTA website, and the substantial similarities of your map to the MTA map, the only rational conclusion is that your map is based on the MTA Vignelli map.”

But there is a potentially critical flaw in that logic. The MTA created The Weekender in 2011, two years after Berman created his map, which he uploaded to Wikipedia in 2009.

Even so, Berman thinks his map stands alone on its merits. “Even assuming that I had a time machine,” he wrote via email, “they're not the same thing.”

It helps that Berman, himself, is actually a lawyer. He seems to understand that whatever may have been "copied" here certainly wasn't copyrightable.

To prove his case, Berman listed eight differences between his map and Vignelli’s. For example, they display lines running along the same route differently. Berman uses different symbols for trains that only stop on nights and weekends. Vignelli uses “gentle curves” whereas Berman uses “hard angles.” Berman shows streets and labels neighborhoods. They use different colors and shapes for geographic landmarks. He went on, and added that he could have continued to go on for much longer.

“In general, the only major similarities are that both are subway maps and both use 45-degree angles in our diagrams, which has been standard transit map practice since 1933,” Berman asserted. “It’s certainly not copyrightable.”

The bigger question, still, is why? Why does the MTA care? Yes, it can sell some Subway map posters, but honestly most people probably want to buy the official one -- not some random dude's (even if it is a nice map). The article also notes that there are a ton of other NYC subway maps on Etsy that the MTA didn't go after.

The whole thing is so strangely stupid. Even if you could (and you shouldn't) argue that because he was selling prints, that somehow harms the MTA's own merch and licensing business, as Vice points out, that's a negligible source of revenue for the MTA anyway.

But there's an even larger point here: as we've discussed many times in the past a government agency doesn't and shouldn't need copyright. It has perfectly practical incentives for creating a map: to get people to use the Subway. That's how it makes its money. It should want more people creating compelling maps that get more people to ride the subway. And, instead of fixing the incredibly broken down Subway system, it wants to waste its time on this nonsense?

Filed Under: copyright, fair use, jake berman, mta, nyc, subway, subway map, vignelli map
Companies: etsy

Ghosh Yoga College Claims Copyright Infringement Over Netflix Documentary On Bikram Choudhury

from the hot-fair-use dept

While the volume isn't enormous, I would still say that there are entirely too many Techdirt posts on the topic of yoga. Most of those center around yoga instructors somehow thinking that a specific progression of yoga poses is somehow deserving of copyright protection or patents. The whole thing feels antithetical to yoga practices to begin with, which are at least in part about bringing a calm spiritual experience into a healthy living style. Paywalling that is an odd choice.

But it gets all the more strange when a yoga organization somehow thinks that a documentary using footage to tell its story runs afoul of copyright law. That is what's happening in a public war of words between Netflix and Ghosh's Yoga College, where Bikram Choudhury studied early in his career. The documentary is entitled Bikram: Yogi, Guru, Predator, and it details the story of Choudhury and accusations from those in his classes that he'd used racist invective and has been sexually inappropriate towards them. Where Ghosh's Yoga College comes in, however, is to complain publicly that the film used video of Choudhury practicing at its facilities.

Ghosh’s Yoga College, based in Kolkata, is claiming video footage and photographs used in the film is actually theirs, and want its immediate removal, according to the report.  In the film, early footage of Choudhury learning yoga at the school is aired as he attended the site and built his craft.

“For the past four years, I have worked hand in hand with Ghosh’s Yoga College as one of only three people who have permission to use family specific photos and material to preserve the legacy of Bishnu Charan Ghosh,” Ida Jo, ambassador for Ghosh’s Yoga College, told Metro in an interview. “They trust me to represent them around the world.

“When the production team reached out to me to get photos and materials for their new film about Bikram Choudhury, I relayed this information to the Ghosh family,” she added. “They said they had no interest in being involved. I told the filmmakers ‘No.’ Despite explicitly telling the producers they would need permission to use materials owned by Ghosh’s Yoga College, including photos and the contents of Yoga Cure, they used them anyway.”

Perhaps we need to invent a "fair use" yoga pose. I'm not sure what that would look like, but I'd certainly expect to see Netflix strike such a pose if any legal action is initiated here. The college can claim protection on these images all it likes, but Netflix would surely have a strong Fair Use case if it got to court. Bikram Choudhury is undoubtedly a public and controversial figure. Suggesting that historical footage of such a person could be walled off through a permission structure, particularly given that footage's relevance to the documentary material, would be crazy.

The public comments from Jo thus far read like a copyright dispute, but any such dispute would run squarely into fair use. More likely, the college probably would prefer its name not be associated in the film with the controversial Choudhury and is flailing around trying to figure out a way to keep that from occurring.

Unfortunately, that's not how copyright law in America works.

Filed Under: bikram choudhury, copyright, documentary, fair use, yoga
Companies: ghosh's yoga college, netflix

Big News: Supreme Court To Hear Google v. Oracle Case About API And Copyright

from the this-is-important dept

Some big news out of the Supreme Court this morning, as it has agreed to hear the appeal in the never-ending Oracle v. Google lawsuit regarding whether or not copyright applies to APIs (the case is now captioned as Google v. Oracle, since it was Google asking the Supreme Court to hear the appeal). We've been covering the case and all its permutations for many years now, and it's notable that the Supreme Court is going to consider both of the questions that Google petitioned over. Specifically:

1. Whether copyright protection extends to a software interface.

2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

As you may recall, the Supreme Court refused to hear Google's appeal back in 2015, which was just focused on the first question above, regarding whether or not an API was copyright-eligible. So it's quite interesting to see that it will now review that question. As you may recall, after the Supreme Court refused to review that point, the case went back to the district court where Google's use of some of the Java API was deemed to be fair use, which was a funky sort of way for the jury to recognize that there never should have been copyright on the API in the first place.

To me, as I always point out in this case, the key element will be getting the Supreme Court to recognize that an API is not software. Oracle and its supporters keep trying to insist that an API and executable code are one and the same, and I worry that the Supreme Court will not fully understand the differences, though I am sure that there will be compelling amici briefs trying to explain this point to them.

You never can tell how the Supreme Court will come down on these issues. The court has been tragically bad on copyright over the past few decades (with a few exceptions). But it's also repeatedly smacked down bad rulings from the Federal Circuit, which is where this case is coming from. So perhaps that additional skepticism over CAFC's nutty interpretation of the law will help them review this issue carefully.

Filed Under: android, api, copyright, fair use, java, supreme court
Companies: google, oracle

US Government Threatening To Kill Free Trade With South Africa After Hollywood Complained It Was Adopting American Fair Use Principles

from the what-the-actual-fuck? dept

Hollywood hates fair use. Even though Hollywood frequently relies on fair use, it seems to go out of its way to fight against fair use being used anywhere else. The International Intellectual Property Alliance (IIPA) (which is a mega trade group of intellectual property maximalist trade groups, including the MPAA, the RIAA, ESA, IFTA and AAP) has freaked out any time any other country in the world has sought to have American-style fair use. Over a decade ago IIPA flipped out when Israel's fair use rules matched the US's. The group and other surrogates have also fought American-style fair use in the UK and Australia after both of those countries explored implementing American-style fair use.

The IIPA has a playbook all set for any country (outside of the US) that is thinking about adopting US style fair use policies: it claims that because fair use relies heavily on judicial common law, no other country but the US can possibly have it, because it will lead to lots of litigation until the courts set the boundaries. Of course, this seems pretty silly, as there are easy ways around this (indeed, it's why fair use kinda works fine in Israel). The latest country to explore implementing an American-style fair use is, as we reported last year, South Africa. Its copyright reform seemed quite smart and well-thought out.

And, of course, Hollywood absolutely couldn't let that stand. Earlier this year, the IIPA included South Africa in its usual omnibus submission to the USTR for the Special 301 list, the ridiculous annual process by which big copyright holders tell the USTR what countries aren't implementing the copyright laws they want, and the USTR tries to "shame" those countries into playing by Hollywood's rules. In this year's submission, the IIPA seems positively apoplectic that South Africa might implement American-style fair use. And, of course, it pulls out the bogus "so much litigation!" warning:

Most recently, the National Assembly of South Africa adopted legislation in December 2018 that also features a broad spectrum of vaguely delineated exceptions. On top of a set of extremely broad new exceptions and limitations to copyright protection (and the existing “fair dealing” system), the new law adds a version of the U.S. “fair use” statute that will allow judges to excuse certain uses from licenses. This version of “fair use” can be applied to eight broad and unclear “purposes” of use, such as “scholarship, teaching and education,” and “expanding access for underserved populations.” The proposed “fair use” system lacks the decades of legal precedent that have served to define, refine, and qualify that doctrine in the United States. The effects of this provision, along with overlapping exceptions and limitations, will result in confusion and uncertainty about which uses of copyright works require licenses, and could hinder investment in and the development of new copyright services in South Africa. It will, in particular, imperil the legitimate markets for educational texts, locally distributed works, and online works in general. Taken as a whole, these provisions are inconsistent with South Africa’s international obligations since they far exceed the degree of exceptions and limitations permitted under the WTO TRIPS Agreement (the “three-step test”).

First, kudos to the IIPA for at least admitting outright that South Africa is looking to implement a "version of the U.S. 'fair use' statute," because I wouldn't have put it past them to ignore the fact that this exists in the US and all of the IIPA members' members have used it to build parts of their business.

But the claim that this is inconsistent with international obligations is utter hogwash. As we've discussed in the past, the "three-step test" is often used by Hollywood as a strawman pretending that it blocks users' rights in copyright law. But that's not true. If it was, then the US couldn't even have the fair use system we do. But we do. So, no, the three-step test doesn't prevent it.

Now, here's the really fucked up part in all of this. While any competent US Trade Rep (USTR) would look at this and laugh off Hollywood's usual nonsense and point out that if we have fair use here in the US, it's pretty fucking rich to think that we should attack an ally for implementing the same law, that's not what happened. Instead, just recently the USTR directly announced that because of these very concerns, it's opening an investigation into South Africa's intellectual property processes, and it could lead to the USTR kicking South Africa out of a very favorable free trade agreement (the Generalized System of Preferences (GSP)):

South Africa: USTR is accepting a petition from the International Intellectual Property Alliance based on concerns with South Africa’s compliance with the GSP IP criterion, in the area of copyright protection and enforcement.

This could lead to a huge change in South Africa's access to the American market, potentially putting over $2 billion worth of South African exports at risk.

All because South Africa wants to implement a totally reasonable copyright plan that respects the public's rights in a manner entirely consistent with current US law. And the US (by way of Hollywood lobbyists) wants to punish the country for that. This is a potentially huge and incredible situation which is not getting very much attention at all -- which is just how Hollywood, the IIPA, the MPAA, and the RIAA want it.

Filed Under: copyright, fair use, free trade, south africa
Companies: iipa, mpaa