In yet another sign that things may not be looking so good for copyright lawsuit machine Righthaven, a judge has asked Righthaven to explain why a non-profit organization reposting an article isn't fair use. There are two reasons why this is interesting. First, to date, most of the "fair use" claims in Righthaven cases have involved sites posting snippets of articles, rather than the full articles (Righthaven has recently said it will only sue for full articles going forward). However, this is a full article, and the judge is still considering whether or not it's fair use. As we've noted in the past, there are certainly cases where using the entirety of a work still constitutes fair use, and this may be one of them.
The other reason why this is interesting is that the defendant in this case didn't even raise the fair use issue. It was the judge who brought it up. At the very least, this suggests that the various Nevada judges being inundated with hundreds of Righthaven cases are at least aware of the other cases, what defenses are being offered, and what the other judges are saying -- since one Righthaven case has already been found to be fair use.
Of course, if the court finds that there are situations in which posting the entire article can be seen as fair use, it may be game over for Righthaven (and some others as well). Considering how many of the sites sued were small, non-profit sites where the use was clearly not intended to compete or to take money away from Righthaven, if those conditions satisfy a fair use ruling, Righthaven may watch a bunch of these cases fall like dominoes. Of course, that would be quite fitting, in that in bringing nearly 200 lawsuits against various sites, the end result could be that various sites receive clearer guidelines stating that they actually can copy entire articles onto their websites, given certain other conditions.
A few years back, the UK government commissioned a thorough review of copyright law, from top to bottom, resulting in the famed Gowers Report at the end of 2006. As I noted at the time, Gowers appeared to try too hard to "balance" everything. However, at the very least, it didn't just push for stronger protectionism. In fact, it said that extending copyright terms didn't make any sense at all. Gowers himself later admitted that the actual evidence suggested copyright terms should be shortened, but he left that out of the report, since he knew the industry folks would go nuts.
Of course, even with this comprehensive report, the government basically ignored it, because the lobbyists worked hard to marginalize it.
With that in mind, consider me somewhat skeptical upon finding out that current Prime Minister, David Cameron, has announced similar plans for a thorough government review of copyright laws, with an eye towards greater user rights and freedoms. This comes as a surprise, since it's so rare to see any government these days talk about fixing copyright law in this manner. Also notable is that Cameron's views on this were apparently influenced by Google's founders, who pointed out that they would not have been able to start the company in the UK, due to the lack of fair use there. While Cameron's statement sounds a bit like he's just heard of fair use for the first time, it's good that he seems to appreciate it:
He said: "The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.
"Over there, they have what are called 'fair-use' provisions, which some people believe gives companies more breathing space to create new products and services."
This all sounds good, but let's see what comes out in practice -- especially after the lobbyists get done trashing the concept of fair use as being somehow anti-innovation.
Danny points us to yet another story of copyright being used to stifle creativity, rather than enhance it. It's the story of Jodie Rivera, better known as VenetianPrincess, for years "the most subscribed to female on YouTube." She creates video parodies of famous pop songs, such as the Lady Gaga parody below, which has nearly three million views:
However, apparently she hasn't been releasing videos lately, and a few weeks ago, took to YouTube to explain the unfortunate reasons why. It seems that various music publishers are telling her that parody is not fair use, and, from the sound of it, have been threatening her if she doesn't pay up. You can see her explanation here:
She doesn't explain the full details, but it's not hard to guess what happened. The publishers, who represent the songwriters, not the performers, can likely claim that while the song may be a parody of the musicians, it's still using the actual music, and thus is not fair use (there are some other legal arguments as to why it might not be fair use as well). But, if you look at it from a common sense standpoint, it's ridiculous. These parodies don't take anything away from the original songs, and, if anything, probably serve to make them even more popular. So, once again, we have a case of copyright law being used to stifle creativity, rather than enhance it.
We had just been discussing a lawsuit in South Korea that appeared to be quite similar to the infamous Lenz case, in the US. If you don't recall, that case involved Universal Music issuing a DMCA takedown after a mother posted a 29-second video of her toddler dancing to the radio where a Prince song was playing. While Universal Music did not contest the counternotice of the woman, the woman (with the help of the EFF) sued Universal, claiming that it violated the DMCA in issuing a takedown on a video that was obviously fair use.
Universal claimed that since fair use is "just a defense" under the law, and not (technically) a "right," that it had no obligation to consider fair use before issuing a takedown. Thankfully, the judge disagreed. That wasn't everything, though, as this case has dragged on and on for years since then, as the EFF and Lenz sought to make Universal actually liable for damages for filing a bogus DMCA takedown. Earlier this year, the court ruled that damages were available, but quite limited.
The latest part of the case is that both sides have filed for summary judgment, with Lenz arguing that the takedown violated the law, since Universal did not believe in good faith that the video was infringing (as required by the law). Universal's motion, on the other hand, makes the argument that the 29-second video is not an obvious case of fair use. It still argues that there's no requirement to check for fair use first, but says that even if it's supposed to, this video was not obviously fair use.
Now, before we get into the reasons that Universal gives, it's worth looking at the video itself, so here you go:
Yeah, that's the video that Universal claims is not obviously fair use of that music you can barely hear in the background. Seriously. So, let's take a look at Universal Music's argument. You can read the full filing here, if you'd like (well, not the full filing, as parts are redacted):
Basically, the argument is that (a) Universal Music really did consider whether or not it was fair use, because they had some poor schlub working for them watch the video twice and decide that it wasn't fair use because the music is in most of the video and (b) that Lenz and her friends and lawyers did not initially consider it a fair use issue -- so if they didn't think it was a fair use case, then how could Universal Music? Specifically, it mocks the EFF, since the EFF is such a strong believer in fair use for apparently not immediately telling Lenz it was a fair use case. Admittedly, Lenz's suggestion that the EFF told her it wasn't fair use certainly doesn't look good for the "obvious fair use" claim.
From there, though, Universal goes on to make the argument that it did consider it, and it still doesn't seem to think the video is fair use. But its analysis here is really weak. It claims that this was a "commercial use," because it was posted on YouTube, a commercial site. But that's blaming the wrong party. It was not a commercial use for the person actually uploading the video, Ms. Lenz. Universal then argues that the video is not transformative, but again that doesn't make much sense to me. It's not as if this video's purpose is anything like the purpose of the original song. In terms of "the nature of the work," Universal says that because it's music, it's protected -- but that's only a part of the analysis. The video has the song in it, but it's not "the song." So it should be the nature of video that's analyzed, not the nature of the song. And the nature of the video is that it was a silly home video, obviously for personal, non-commercial use. As for "the amount of the work," again, Universal shifts what it looks at. It says since the song appears in the whole video, then it weighs against fair use. But, again, it's looking at the wrong thing. Here, the question is the amount of the original work, and in this case it's 29 seconds of a much longer song (something Universal ignores). Finally, the big one: the commercial impact of the video, much of Universal's reasoning is redacted, but it appears its argument is that Universal/Prince could sell the right to use the song in videos. That seems pretty weak. No one is going to pay for a song in a video like this.
Just the fact that we need to have a big legal fight over whether or not the video above is fair use is really sad. Any copyright law that doesn't immediately consider that kind of use fair use is broken. In the meantime, I'm curious if someone at Universal Music could enlighten us to what would be considered fair use in its mind?
We've been following, with great interest, the antics of Righthaven, the company funded by the Las Vegas Review-Journal, which has been suing all sorts of random websites for copyright infringement after posting articles (or even snippets of articles) on their sites, often with a link back. A variety of different defenses have been raised by those sued, with almost all of them claiming fair use -- which seemed like a credible claim to us (though, of course, others have disagreed).
Now, in a pretty big setback for Righthaven's entire strategy, the first ruling on this question has been made, and... the judge dismissed the case, claiming that it was fair use. As Eric Goldman notes in the article linked here, it's a bit surprising that the judge ruled fair use so early in the process: "Because the case so clearly lacked merit, the judge prudently is trying to end the case early rather than letting it drag on for months and years, wasting lots of time and money in the process."
That said, this particular case did involve someone who only posted 8 sentences out of a 30-sentence article, whereas many of the other lawsuits have involved entire articles being posted. The 8 sentence part certainly played into the fair use analysis, but other elements of the fair use analysis would certainly apply to others, with a key one being: "Nelson's use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article."
Oddly, the article notes that the guy, Nelson, appears to have already settled with Righthaven, though it wasn't clear the court recognized this. Hopefully, that settlement didn't involve him paying any money, because if it did, he should demand it back. Here's the ruling:
Unfortunately, the news is not all good on the Righthaven front. In a different case with a different judge on the same day, a request for dismissal was rejected. And this one is really unfortunate. It involved a site that had user-generated content, and a user posted the content. The site owner argued that it was not responsible for the content under basic liability laws. However, because the site did not register a DMCA agent, it's not protected by the official DMCA safe harbors. Now, some have argued that this shouldn't matter. Basic liability issues should make it clear that whoever posted the actual content should be liable, rather than the third party service provider -- but the judge in this case didn't find that point compelling enough for dismissal, though it's possible the issue (and others) could be revisited down the line (though Righthaven is apparently working hard to get that case settled). The article also notes that a bunch of other sites did cave in and pay up...
Copycense points to the news of how the executor of Joe DiMaggio's estate is threatening to sue Yale University Press for using a photo of DiMaggio with Marilyn Monroe, with whom he was famously (if briefly) married, in a book about DiMaggio's relationship with Monroe. Morris Engelberg, who has been an aggressive protector of DiMaggio's image since his death is claiming this is not allowed:
"We will not authorize any photo of Joe DiMaggio and Marilyn Monroe ... to be on the jacket of any book," he responded in a letter dated Sept. 28. "This was a 'no-no' in Mr. DiMaggio's lifetime," the attorney wrote.
"We have respected Mr. DiMaggio's wishes that there be no commercial or other venture depicting" Joe and Marilyn.
The thing is... it's not clear that DiMaggio (and now Engelberg) actually have the right to prevent that. Think about it: if a newspaper simply was reporting on DiMaggio and Monroe, and snapped a photo of the two, that's perfectly legal. So why wouldn't the same be true for a book. While this is only at the "threat" stage, so it's not clear what laws Engelberg would actually rely on, you'd have to imagine it would be yet another attempt at using a publicity rights claim. As we've been discussing lately, publicity rights have suddenly become quite popular, and the law around it is really troubling in how it prohibits all sorts of speech. Right now, of course, publicity rights law is very much in flux, and dependent on various state laws and ever changing caselaw. My guess is that Engelberg might be more bark than bite, because losing a lawsuit like that could have some pretty serious consequences.
While it might not be entirely relevant, this threat reminds me of the story we had a couple years ago about an attempt by Marilyn Monroe's estate to use a publicity rights claim. Apparently, her estate had convinced California tax authorities that Monroe was a New York resident, to avoid paying taxes on the estate in California. The problem? New York's publicity rights laws only applied to living people, not dead. California has posthumous publicity rights. So, when the estate tried to claim California publicity rights, it was rejected, because of the whole "NY resident" thing. The ruling there basically said Monroe no longer had publicity rights. So that doesn't bode well for Engelberg's threats... though I'm guessing that DiMaggio probably qualified as a California resident (despite playing for the Yankees, he was famous as a San Francisco native), so perhaps that's what he's banking on.
We've talked a lot recently about questions concerning the conflict between copyright law and the First Amendment. Historically, the courts have argued that there are two "safety valves" on copyright law that protect it from running afoul of the First Amendment: the idea/expression dichotomy and fair use. I've yet to find this argument convincing for a variety of reasons, in large part because neither the idea/expression dichotomy nor the fair use doctrine are very broad. In fact, they're quite limited and often applied extremely arbitrarily. We've argued in the past that, to some judges, there isn't really an idea/expression dichotomy -- as they ignore that concept when it's convenient to them (such as when they banned the unauthorized sequel to Catcher in the Rye. Along those same lines, "fair use" is often extremely arbitrary as well. Judge Kozinski has famously questioned the arbitrariness of fair use, suggesting that in most cases, a judge can rule either way and the binary-ness of the decision can be troubling.
Copyright and fair use expert Peter Friedman has grappled with this in the past as well, saying that there are some cases where fair use is easy to determine... a statement he later had to backtrack on when the example he used in that original article -- a case where he insisted the fair use call was an easy one went the other way.
Michael Scott recently pointed us to the latest draft of a paper by law professor Ned Snow on how fair use should be viewed in the legal system. He's written similar papers before, but he focuses in on two key points. The first is that until the mid-80s to early-90s, it "fair use" was considered mostly a "matter of fact" rather than a "matter of law." As such, it was often for juries to decide, rather than judges. However, in the last few decades that's flipped almost entirely, and it's exceedingly rare to find a court that views fair use as a matter of fact, rather than a matter of law. That is, the judge will decide, not the jury.
While he focuses on (what he claims is) a misinterpretation of a Supreme Court ruling that resulted in this, I also wonder if the 1976 Copyright Act contributed to the issue -- since it took fair use from a common law/case law arena and put it into the statute with the now famous "four factor" test. William Patry, one of the most respected and recognized (and cited) names in copyright law has argued that this codification of fair use was a major mistake. He's also pointed out that many now falsely believe that the four factors are the only way to judge fair use, when that was never the intention at all. He's reasonably worried that courts no longer look to see if something is actually "fair," but rather jump straight to the four factor test, which (again) can often go either way depending on what the judge wants to do.
While Snow's paper tries to deal with this with a few suggestions concerning both moving the fair use determination back to the jury and changing the way appellate courts review such rulings, one point that he made in the piece caught my eye and seems worth narrowing in on. He points out that, as it stands today, copyright law favors the copyright holder over the fair user. That is, fair use is only seen as a defense, rather than a right. He points out how this is problematic from a First Amendment point of view, because the burden is wrong:
Presently copyright law unfairly favors copyright holders over fair users, imposing burdens on fair users that stifle fair-use creativity. Fair users face a burden to prove the fairness of their use, which becomes damningly formidable given the uncertainty that surrounds any fair-use question; when fair use is the issue, infringement is the presumption. Facing this formidable burden, fair users must contemplate a punitive penalty that chills future attempts at fair use. By contrast, copyright holders who might doubt their claim against a fair user contemplate a possibility of not profiting from the disputed use. This imbalance between copyright and fair use becomes especially poignant when considering that the Constitution requires copyright to refrain from suppressing fair uses under the Free Speech Clause. Therefore, copyright‟s unequal treatment of fair use, coupled with a constitutional demand for speech protection of fair use, requires that the standard of review favor fair users.
While he then focuses in on the somewhat technical (and probably boring if you're not a lawyer) standards on how courts should review fair use cases, the point in that paragraph above struck me as worth pondering. Considering the claim that fair use is supposed to be the safety valve of free speech, and free speech exceptions are always in extraordinary cases where high bars are set for proof, shouldn't the same be true of copyright?
That is, if we truly believe that fair use is the valve on copyright to protect free speech, shouldn't the assumption be that the use is fair until the copyright holder proves that it is not? In other words, if we really believe in the First Amendment and that fair use is supposed to protect it from over aggressive use of copyright law to censor, then fair use should be assumed, and the legal burden for proving that a use is not fair should fall on the copyright holder. It seem that would go a lot farther in protecting free speech.
One of the good things about intellectual property issues is that it's really a non-partisan debate. While, in practicality, this seems to mean that both of the major political parties support bad copyright and patent law, at the very least, it leaves ridiculous political rhetoric out of the debates on things like copyright. But, sometimes, weird things happen. Such as when Glenn Beck seems to think that "fair use" is a choice of some sort. Apparently, in political circles, there was a lot of attention paid recently to a video mashup showing Donald Duck being influenced by Glenn Beck -- created by Jonathan McIntosh, who I saw speak earlier this year at the first Fair Use Day in DC. The video, which I had not seen until this, apparently made the rounds in political circles.
But, now, Glenn Beck has seen the video and he's not at all happy about it. On his radio program, he condescendingly mocks the videos creator for being involved in "fair use activism." Beck's enunciation is really bizarre. He reads McIntosh's bio with odd emphasis, in a tone suggesting something sinister in ideas like "fair use activist" and "open video alliance." Then he puts on the super sinister voice and says that these remix videos are "getting federal funding to 'help culture understand culture.'" He promises to investigate further.
Um. Yeah, those evil remix artists are really federal stooges? That must be why the federal government keeps trying to make copyright law ever more stringent to wipe out remixes, huh?
Ah, and then we learn of Glenn Beck's basic confusion over the concept of fair use. Since the video involved Donald Duck, he starts talking about Disney, and how Walt Disney hated communists, and he finds it odd that they're okay with fair use:
Of course, it's all fair use! So they can use Disney... apparently Disney doesn't have a problem with Donald Duck cartoons now being remixed and politicized...
Um, hey, Glenn: the whole point of "fair use" is that it doesn't matter if the copyright holder is okay with it or not. That's why it's called "fair use." It's a situation where the users can use it no matter if the copyright holder has a problem with it or not. It's part of this thing called Free Speech found in the First Amendment of a document you seem to like, called the Constitution. And, of course, this is Disney we're talking about, the company that has single-handedly done more to expand copyright than just about any other company in its efforts to protect Mickey Mouse. To suggest that Disney has somehow gone soft on copyright is pretty laughable.
Of course, someone else put together another brilliant remix showing Mickey Mouse reacting the "news" that the US gov't is using this sinister fair use to create propaganda remix videos:
If you follow copyright issues online, by now you've undoubtedly heard of the famous Lenz case, involving Universal Music issuing a takedown to YouTube on a 29-second home video a mother took of her toddler son dancing to a Prince song. While Universal didn't protest the counternotice, the EFF sued, pointing out that it should have taken fair use into account.
Wonil Chung, an intellectual property lawyer in South Korea alerted us to a blog post he wrote about a case that is almost identical to the Lenz case in the US. It involved a father filming his toddler daughter dancing and singing to a Korean pop star. Again, a takedown notice was issued, and the guy sued in response. Of course, it's worth noting that South Korean copyright law can be much stricter than US copyright law (in part due to lobbying pressure from -- you guessed it -- US entertainment industry lobbyists as part of a "free trade agreement" the US signed with South Korea). It's also worth noting that South Korea's concept of fair use is extremely narrow.
However, thankfully, the court sided with the father, pointing out that the video itself was not a substitute for the song, it had a non-commercial purpose, and only 15-seconds of the song were used. Perhaps most importantly, it noted:
"If this kind of UCC [User Created Content] is barred from uploading online, it results in a unnecessarily excessive restraint on the free expression."
Even beyond that, unlike the court in the Lenz case, the Korean court ordered the copyright holder to pay the father for "mental damages suffered from the takedown." This is nice to see, and Chung's summary of the ruling pretty much wraps it up:
Another interesting part of this ruling is that the court clearly found that the free expression under the constitution of South Korea must be considered fully and fairly in determining whether there exists a copyright infringement or not. Although the Korean Copyright Act has a fair-use-like clause, the clause is stated relatively narrowly so there has been a certain criticism that Korean court is not active in holding up a fair use defense. But this ruling held that the constitutional right of free expression has the equal value as a copyright stated in the Copyright Act which is a subordinate law to the constitution. That's why I welcome this ruling and expect to see the balance between the free expression and copyright with more fair use defences accepted in the Korean court in the future.
His full post has more details and quotes from the ruling.
We recently wrote about News Corp.'s slightly odd decision to sue a political candidate, Robin Carnahan, who used a clip from Fox News (of Chris Wallace attacking Carnhan's opponent, Roy Blunt). Carnahan has hit back, and beyond just arguing the obvious fair use defense (which seems like it should win), Carnahan points out that, first, Fox failed to register the copyright on the 2006 program until after it filed the lawsuit. As has been discussed here many times, while you get copyright automatically, if you want to sue over it, you generally have to have registered the copyright (the law is a little hazy here). Even worse, Carnahan's lawyers point out that a large segment of the clip that was used actually comes from C-SPAN, whose works are automatically put into the public domain. In other words, Carnahan's lawyers appear to be accusing Fox of copyfraud, in claiming copyright over public domain materials. If this gets anywhere, Fox and News Corp. may end up regretting filing this lawsuit quite a bit...
