Analysis Of Pirated Oscar Movies Shows They're Almost All Available... In HD (And Not From Screeners)

from the because-of-course dept

As we've mentioned in the past, every year for over a decade, Andy Baio scours the internet to see what Oscar-nominated movies have been put online (the answer is usually almost all of them). He started this back in 2004, when the MPAA laughably claimed that the very first "screener" copy of a nominated movie had been put online. Baio realized that it was hardly the first and there were many more. His latest analysis is up and it shows that, yet again, nearly all nominated movies are available. He's actually kept the details of every year's search in a big Google spreadsheet.

There are some interesting findings in the data, including that screener copies don't matter much any more. For years, the MPAA -- which still can't get over its piracy obsession -- insisted that screener leaks were a huge problem. Back in 2003 the MPAA wanted to ban screener DVDs entirely, which pissed off a bunch of filmmakers who feared that their films wouldn't get voted on for the Oscars. Since then, they've focused on ridiculous proprietary systems that would only play on special DVD players -- which just pissed off viewers. In the last few years, they've just focused on watermarked DVDs, which means that when the videos inevitably leak, they can be tracked back to whose copy leaked -- like Ellen Degeneris' copies last year.

But, as Baio notes, in the online release market, screener copies aren't good enough:

But here’s the thing: screeners are stuck in the last decade. While we’re all streaming HD movies from iTunes or Netflix, the movie studios almost universally send screeners by mail on DVDs, which is forever stuck in low-resolution standard-definition quality. A small handful are sent in higher-definition Blu-ray.

This year, one Academy member received 68 screeners — 59 on DVD and only eight on Blu-ray. Only 13% of screeners were sent to voters in HD quality.

As a result, virtually any HD source is more prestigious than a DVD screener. And with the shift to online distribution, there’s an increasing supply of possible HD sources to draw from before screeners are ever sent to voters.

And of course, the data also shows that cammed copies (someone sitting in a theater with a camera filming it) are virtually non-existent here. This is another issue that we've covered for years, with the MPAA famously making up numbers out of thin air concerning how big a "problem" it was. But, of course, the quality on those copies suck, and so people focus on HD, which they inevitably get.

Of this year’s 36 nominated films, 34 already leaked online in some form — everything except Song of the Sea and Glen Campbell: I’ll Be Me.

But only 33% of those were leaked from screeners, down from a high of 89% in 2003 and 2004.

As he notes, with the MPAA stupidly focused on screeners, they think they're winning the battle, because here's the percentage of actual screeners leaked: So, I'm sure the content protection team at the MPAA are all excited about this. They're vanquishing the screener piracy monster. But as Baio points out, that's bullshit, because just as many films are leaking, but in HD quality from HD sources instead of screeners: While this year's figure is currently 89%, there's a decent chance it will go higher before the Oscars happen. As Baio notes, 44% of the films this year are HD sources, not from screeners or from retail releases.

In other words: all this effort from the "content protection" team at the MPAA yields absolutely no benefit at all.

Filed Under: andy baio, copyright, dvds, hd, movies, oscars, piracy, screeners
Companies: mpaa

Fair Use Protects Some Uses, But It Is Still Way Too Weak To Be Effective For Many

from the we-need-to-exercise-it,-but-it's-still-scary dept

A few weeks back, we wrote about Andy Baio's excellent video concerning the limits of fair use, in particular his awful and soul-wrenching experience being sued for infringement in a situation that was almost certainly fair use. Baio eventually settled for $32,000 rather than deal with a long and expensive trial that might end poorly. Baio points out that even when we have fair use, the fact that you can still be sued and can still have to fight your way through the court system is incredibly scary, and creates a chilling effect on creativity.

Following that, Pat Aufderheide, one of the world's foremost experts on fair use, and someone we've discussed before, wrote a response to Andy's presentation challenging some of the claims he made, and arguing that people need to strongly exercise their fair use rights and that we shouldn't be fearful of such lawsuits. Aufderheide, along with Peter Jaszi, have been creating "best practice" guides in fair use for creators to rely on, hoping that having some clear and accepted guidelines will help creators more confidently express and use their fair use rights.

What happened to Andy Baio is creepy. But Andy inadvertently is making things even worse. He generalizes dangerously from his experience, and spreads wild and false charges in the last part of his presentation. The chilling effects of his talk could be considerable.

He claims, astonishingly, that “fair use is not a law.” Uh, it’s section 107 of the Copyright Act. Like other parts of the law that protect free expression, it is applied by courts case by case; you exercise it in context, and courts take that context into account.  That doesn’t make it “not a law,” nor does it make it impossible to apply. Creative people make judgments all the time about whether our works are obscene, libelous or treasonous, for example; there are no bright lines there, either, but we act with confidence, knowing the law is on our side.

True and False.

Andy warns ominously that “anyone can sue you for anything, always, and even without grounds.” Yup. That is true, and just as true for obscenity, libel, or treason charges, and in a million other places in life. If someone slips on the sidewalk in front of your house after a snowstorm, or chokes on an appetizer at your dinner party, or objects to your choice of lawn furniture, they can sue you. Copyright trolls like Prenda are suing people who have done nothing at all. But we somehow conduct our lives and even have dinner parties knowing this ugly reality.

He warns fellow remixers everywhere, “fair use will not save you,” and “nothing you have ever made is fair use.”  Whoa. Neither of these statements is true.

When two people who I normally agree with are in disagreement with each other, I sit up and take careful notice. It surprised me at first to see these two clear supporters of remix culture and of fair use disagreeing so vehemently with each other. I think they both make points that are correct, as well as points that are exaggerated for effect. I think that the two would actually agree more than they disagree, and the disagreements are much more in the margin than is implied above.

While Aufderheide is correct that there are lots of things that people can sue you over, those kinds of lawsuits are not the same as what Baio was talking about, in a few ways. First, the statutory damages associated with copyright are so out of line with any potential harm created by the situations that Baio is talking about. If the requirement involved some showing of actual damages and/or much lower statutory damages, I would be more inclined to agree with Aufderheide on this point. Second, while she is correct that fair use has been "riding high" in a number of court cases lately, that is not always the case. Fair use determinations by courts quite frequently have the appearance of arbitrariness. I've seen copyright lawyers note that it is possible to make the four factors test in fair use come out on either side in almost any case if you really want to. That uncertainty and that risk is a concern.

I applaud, wholeheartedly, Aufderheide and Jaszi's tireless work at reducing that uncertainty with their attempts to "reclaim fair use." And I hope that one day, the uncertainty will be greatly minimized. But we really are just not there yet. Baio's case is hardly an outlier.

As for Baio's claim about fair use and the law, he was making an inexact statement that within the context did, in fact, make sense. Yes, fair use is a part of the law, but copyright maximalists, and some courts, have treated it merely as a defense, rather than a direct right. This is almost certainly a misreading of the law, because the law states clearly that a fair use is not an infringement ("the fair use of a copyrighted work... is not an infringement of copyright") but if fair use is merely a defense than there would have to first be infringement. So, clearly the courts have misread the law there. However, Baio's statement was about the practical reality of this, in that in order for him to plead fair use, he effectively has to go through a full legal process, which is timely, costly and risky.

I agree that we need to "reclaim" fair use and that one way to do this is to continue to exercise those rights. But I don't think it's right to suggest that relying on fair use is a guaranteed safe place under the interpretations of the law today. Should it be? Yes. Should we strive to drive the law and the judicial decisions in a way that establishes a clear safe place for fair use to occur? Absolutely. And while Aufderheide and Jaszi have done incredible work on that front, the points Baio made still ring true for the vast majority of people who might face the threat of a copyright infringement case concerning a fair use remix, or another transformation of a copyright-covered work.

Filed Under: andy baio, fair use, pat aufderheide, peter jaszi

Andy Baio On The New Prohibition Created By Copyright

from the chilling-effects dept

Andy Baio has an absolutely fantastic video presentation that he did recently for Creative Mornings/Portland on what he's calling The New Prohibition. It's half an hour long, but absolutely worth watching. Some of the discussion covers ground that you're probably familiar with -- such as discussing how much culture is really infringing by nature (an awful lot of it). From there, it shifts to Baio's unfortunate experience with Kind of Bloop, a story we covered a couple years ago. If you don't recall, Baio, who is quite knowledgeable about copyright law, produced a chiptunes 8-bit version of Miles Davis' Kind of Blue album, which he called Kind of Bloop. He knew that, for cover songs, he needed to pay compulsories, which he did. He then funded the hiring of artists via Kickstarter (he was Kickstarter's original CTO and helped launch the site). It was one of Kickstarter's first success stories. Baio made no money off of it. He produced the album, hired the musicians, made the CDs, and any leftover money went to the artists as well.

But the photographer who took the photo on the cover of Kind of Blue sent his lawyers after Baio. Even though Baio had had someone create a very carefully done 8-bit version of the Miles Davis photo (i.e., he didn't just apply a Photoshop filter...), and believed strongly that it was fair use (it was transformative, non-commercial, had no negative impact on the market for the original, etc.), the threat of the lawsuit, and the years of fighting the lawsuit, including significant expenses (even with pro bono legal help), made him decide to settle for $32,500 of his own cash to the photographer Jay Maisel (an incredibly successful photographer who literally lives in the largest single family residence in New York City).

We wrote about this at the time, horrified at this kind of result. The one good thing in all of this was that Baio fought for, and won, the right to write a single blog post about the experience -- rather than be silenced via a typical gag order that is all too common in legal disputes like this. The story got widespread attention (and there was significant backlash against Maisel, which Baio, himself, tried to quash).

However, since then, Baio hasn't said much (publicly) about the experience. This video lets him talk a bit about the aftermath -- to explain the true chilling effects of the threat and the eventual settlement. Baio is a creator. It's in his blood. It's what he's always done, but after this he was afraid to create. Being threatened with a lawsuit, even if you believe you're right, is a scary and possibly life-altering moment. Lots of people who have not been in those shoes think it's nothing and that they could handle it. You don't know.

As he notes in the talk, copyright law is probably the most violated law in the US after speeding and jaywalking (and I'm not even sure copyright infringement is really in third place in that list). But getting rung up for one of those gives you a "bad day" situation, not a ruined life. Copyright, on the other hand, can ruin your life. And chill your speech and creativity.

And this is the worst part: so many people, especially kids, are at risk. Baio also famously highlighted the prevalence of the phrase "no copyright intended" on YouTube. Tons of kids uploading videos use clips of music and videos with a phrase like that. Or with statements about fair use. Or with copyright law quotes. All, as he notes, to try to find that magic voodoo that wards off a possible lawsuit. Most of those people aren't being sued.

But they could be.

Baio points out that he used to find all those "no copyright intended" messages humorous. And now, he fears for all of them. Just as copyright trolls have sued hundreds of thousands of people as a part of a business model to shake down people, he notes it is not out of the realm of possibility that others will start copyright trolling on YouTube. In fact, while he doesn't mention it, we've actually seen the beginnings of just that kind of thing.

And, as he notes, this is terrifying. This is the new prohibition. People are creating amazing and wonderful new things, inspired by and building off the works of others -- just as has happened throughout human history. This is how culture works. And rather than celebrate and encourage that... we've made it illegal.

And, not just illegal, but illegal in such a way that you can be threatened with life-destroying financial damages. And it's happening all the time and likely to happen even more.

Baio notes that this requires true reform. Fair use is not enough. Fair use is barely worth anything in this setup, as he himself discovered. Baio argues for making non-commercial use non-infringing, which is a step in the right direction, but still leads to trouble in figuring out what really is commercial or non-commercial on today's internet. Still, the crux of the message is vital for people to understand in learning why our copyright system isn't just broken, but seriously damaging to speech, creativity and culture.

We've seen some copyright system supporters in our comments insist that if we don't like copyright, that's fine, "just don't use it" and leave them to use it how they see fit. And that would be great if copyright law didn't get in the way of what most people feel is a perfectly natural way of expressing themselves. But it does. And it does so in a way that stifles true cultural creativity, the exact opposite of what we should be seeking under the clause in the Constitution that is supposed to "promote the progress." Baio's speech is worth watching, just so people can understand what's at stake here. This isn't about "piracy" or people wanting stuff for free. This is about speech and culture and the ability to stifle it completely and destroy people's lives. These are the reasons why so many of us speak out about the way copyright law is used today.

Filed Under: andy baio, copyright, fair use, prohibition, statutory damages

Former Yahoo Employee Regrets How Yahoo Patented His Work

from the this-is-how-it-happens dept

It's become fairly standard in Silicon Valley for companies to apply for a bunch of patents, even though the vast majority of software developers hate patents and think they're a disaster that holds back innovation. Yet people are told time and time again that companies simply have to file for patents, to put together a stockpile to be used defensively. Companies that don't do so are mocked. Over the years Google has been mocked for not having enough patents, as has HTC and, most recently, Facebook. All of those companies eventually start ramping up their patenting effort -- all while insisting to the engineers that it's just for defensive purposes. But, even if that's meant to be the case, things change, and companies that swear patents are only used defensively either change management or are acquired, and suddenly those "defensive-only" patents are offensive weapons (and I mean offensive in multiple ways here).

Former Yahoo employee Andy Baio reacted to the news of Yahoo's stupid patent lawsuit against Facebook the way much of the internet world did: with pure disdain. But, in his case, it's personal. Even though (thankfully) none of the patents with his name on them are in this particular suit, he knows that Yahoo has four patents with his name on them... and he very much regrets going along with the effort to patent things. He talks about how after Yahoo acquired his startup Upcoming.org, they asked him to get patenting.

After we moved in, we were asked to file patents for anything and everything we’d invented while working on Upcoming.org. Every Yahoo employee was encouraged to participate in their “Patent Incentive Program,” with sizable bonuses issued to everyone who took the time to apply.

Now, I’ve always hated the idea of software patents. But Yahoo assured us that their patent portfolio was a precautionary measure, to defend against patent trolls and others who might try to attack Yahoo with their own holdings. It was a cold war, stockpiling patents instead of nuclear arms, and every company in the valley had a bunker full of them.

Against my better judgement, I sat in a conference room with my co-founders and a couple of patent attorneys and told them what we’d created. They took notes and created nonsensical documents that I still can’t make sense of. In all, I helped Yahoo file eight patent applications.

Years after I left I discovered to my dismay that four of them were granted by the U.S. Patent and Trade Office.

I thought I was giving them a shield, but turns out I gave them a missile with my name permanently engraved on it.

He insists that he'll never let that happen again, but it's a good lesson for others. Those who claim that they're only getting patents for defensive purposes have to recognize that those patents may not always be under benevolent control. You are creating a weapon -- a potentially broadly powerful and destructive weapon. And while you can hope it won't be used, that's rarely your choice in the long run.

The scary part is that even the most innocuous patent can be used to crush another’s creativity. One of the patents I co-invented is so abstract, it could not only cover Facebook’s News Feed, but virtually any activity feed. It puts into very sharp focus the trouble with software patents: Purposefully vague wording invites broad interpretation.

This is the world we live in... and it's a big, big problem for innovation.

Filed Under: andy baio, patents, software patents
Companies: facebook, yahoo

If Jay Maisel's Photograph Is Original Artwork, Then So Is The Pixelated Cover Of 'Kind Of Bloop'

from the artistic-copying dept

Okay. I'm going to say right from the top that I expect some (not all) photographers are going to read this and get very angry. I'm going to try to explain myself as carefully as possible to make my point clear, because it's not what many people are going to jump to a conclusion about. That is, I am not saying that photography is not art. I believe that photography absolutely is art -- and it's an artform I love. At one time in my life, I spent more time in a dark room than was healthy (perhaps literally, given some of those chemicals), and even pondered pursuing photography as a career. What I am going to say, however, is that it seems like there's a bit of a double standard when it comes to photographers, copyright and fair use on transformative and/or derivative works.

In the time I spend talking about copyright issues, it's always seemed that it was a certain group of photographers who get much more worked up about these things than anyone else. I very much understand why this is. In many cases, photographers are self-employed, and they've come to believe that copyright is their sole way of making a living (I believe they're wrong on this, but they believe it strongly). So anything that takes away from copyright protections -- including such legally enshrined issues as fair use -- are seen as being serious threats. Again, I think this is somewhat short-sighted and wrong, but I understand where the feelings come from.

We recently wrote about Andy Baio's legal fight with Jay Maisel over Baio's use of a pixelated version of Maisel's photograph of Miles Davis that became the iconic album cover for Kind of Blue. When I wrote that, I fully expected that many photographers would come to Maisel's defense, even as much of the internet commentary sided (heavily) with Baio (including some from photographers). There were, of course, also some very thoughtful discussions from some photographers, who disagreed with Baio's fair use analysis and presented reasonable explanations for why they did not believe his use would be covered as fair use. I disagree with their analysis, and think that the fair use case here is quite strong, but fair use is a funny thing and it very often comes down to the whims of the judge on the case.

However, there is one argument I've seen in numerous places by photographers that strikes me as either incredibly self-unaware, or just downright hypocritical. There were a few such comments on our post about it, such as this one that insisted that since you could still recognize the photo, Andy "didn't turn it into something different." Similarly, a photographer by the name of William Beem (and I really don't mean to single out Mr. Beem, but to use his comments as a sample of the general argument) commented a few times on a post by Mathew Ingram about this whole affair, again arguing vehemently that there's no fair use here and that Andy "stole" the image. For example, Beem states the following:

Andy took something that wasn’t his and he didn’t have any license or right to take it. Digital or physical, that’s theft. Your argument that Jay Maisel still has the original is true, so Andy stole a copy. It’s still not his. The image is recognizable as the original. All rights to that image belong with the copyright holder, whether original or duplicated.

Saying that all art is derivative in some way is very nebulous.

It's this form of argument that I find incredibly hypocritical. The whole "took something that wasn't his." What did Baio (or, really, the guy he hired) do? He copied an image that he saw, but did so in a different and artistic way. What did Maisel do to make his photograph: he copied the scene of Miles Davis in front of him, but did so in a different and artistic way. It's the same thing any photographer does. Part of the very process of photographing is, literally, making a copy, often without a "license" from whatever it is you're making a copy of. Again, that doesn't make it any less art. In fact, the reason that photographs are considered eligible for copyright protection at all (and some have questioned this) is because of the artistic choices in making a photograph: how it was framed, lighting, etc. Yet, in the pixelated image, again, there are similar artistic choices made: how to pixelate the image. How to still make it look good, but within the limitations of the pixelated artform, etc.

Some have, incorrectly, assumed that you could just apply a filter to the original image and get out the pixelated version that Baio used. This is false. You can see, pretty obviously, just from looking at the tie, that the guy who made the pixelated image didn't just Photoshop it, but found a way to recreate the general feel of the original image, but within the artform of pixelated images. You could just as easily argue that Maisel found a way to recreate the general feel of Miles Davis performing, but within the artform of photography. If you don't understand this, you can see if you look at an actual attempt to run a Photoshop filter on Maisel's original, the result is quite different. Furthermore, as David Liu pointed out, a scaled down version of an image is quite different than a hand-pixelated image, and in the case of Kind of Bloop, the image was hand-pixelated, using all sorts of artistic choices by the artist.

What I have trouble with is the argument that this is different than photography. In both cases, you have artists who took something that was out there -- something they did not create -- and then turned it into an artform. In Maisel's case, it was taking the real, physical 3D Miles Davis performing, and turning it into a photograph. In Baio's case, it was taking the Maisel photo, and turning it into an 8-bit image in homage to the original.

Photography, by its very nature, starts with simply copying what's on the other side of the lens. Yes, there is more to it on top of that. There are all sorts of artistic choices to be made about how to copy. How to frame, how to focus, how to light, how to shade, how to dodge, how to print, etc. That's what makes it an artform. But it's incredibly hypocritical to then decry others similarly making a copy, with similar artistic choices, by somehow claiming that that version of copying is "theft." So, photographers, please don't be so quick to decry other artforms that also start with copying, but which also then apply additional artistic choices. If Jay Maisel's photograph of Miles Davis is unique and original artwork (and I believe it is), then so is the cover of Andy Baio's album.

Filed Under: 8-bit, andy baio, art, copying, copyright, culture, jay maisel, photography, pixelation

Kind Of Blue: Using Copyright To Make Hobby Artist Pay Up

from the chilling-effects dept

A whole bunch of folks have been sending over Andy Baio's tragic story of having to pay $32,500 to photographer Jay Maisel for his use of an image, which he still believes was fair use. There are all sorts of interesting things to consider in this story, so let's break it down.

Background:

Hopefully you already know who Andy Baio is. An all around intriguing guy who runs the awesome blog waxy.org, does fantastic web development, and has been involved with a few really interesting projects/companies, including Kickstarter and Upcoming.org (which he sold to Yahoo a while back). I don't know Andy at all -- have never met or spoken to him -- but he's one of the folks out there that I've had a ton of respect for for many, many years.

One of the really fun projects that Andy did was to record an album called Kind of Bloop -- an 8-bit tribute to the classic Miles Davis album, Kind of Blue. Andy raised some money (via Kickstarter, of course), got together some "chiptune" musicians (who make 8-bit music, a la classic video games), and recorded and released the album. And, yes, he was careful to do all of the proper licensing for the music. He also gave any of the money that came in to the musicians, not taking a cut for himself.

The Problem:

All of that sounds good... and he was pretty surprised by the eventual mess he got into. For the cover, the obvious choice was to do an 8-bit rendering of the original Davis cover, and he, Andy, got a friend to put it together. You can see the original and the version for this album below: It turns out that the original photo of Davis for the album was done by famed photographer Jay Maisel and Maisel believed the Kind of Bloop image violated his copyright. Andy argued, persuasively, that his use of the image was fair use. Maisel's lawyers disagreed, and threatened him with:

"either statutory damages up to $150,000 for each infringement at the jury's discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations."

Fair Use:

Andy makes a strong case for why this is fair use. If you focus on two key factors out of the four tests for fair use, I believe he has a very compelling case, but that won't surprise many people. Baio points out that his version is transformative:

From the beginning, Kind of Bloop was a creative experiment. I was drawn to the contradiction between the textured, subdued emotion in Kind of Blue and the cold, mechanical tones of retro videogame music. The challenge was to see whether chiptune artists could create something highly improvisational, warm, and beautiful from the limited palette of 1980s game consoles. (I think we succeeded.)

Similarly, the purpose of the album art was to engage both artist and viewer in the same exercise — can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph?

It reinforced the artistic themes of the project, to convey the feel of an entire album reimagined through an 8-bit lens. Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message.

This kind of transformation is the foundation of fair use. In a 2006 verdict, the court found artist Jeff Koons' use of a fashion photo "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."

I don't think there's any question that Kind of Bloop's cover illustration does the same thing. Maisel disagreed.

Separately, he also notes that on the other key test, the impact on the market, this is likely fair use: "It's obvious the illustration isn't a market substitute for the original: it's a low-resolution artistic rendering in the style of 8-bit computer graphics that is, at best, of interest to a few computer enthusiasts."

I actually think that he also could have argued that this isn't even a fair use question, since many of the elements of the original photo that are copyrightable are actually removed in the 8-bit version, leading to some questions as to whether or not there's even a violation of the copyright at all.

The Outcome: Cheaper to Settle than to Fight:

As is often the case when someone is threatened with the potential of having to pay huge fines after an expensive, lengthy and exhausting trial, it's easier (and sometimes cheaper) to just settle. And that's what Andy did. He agreed to pay $32,500 to Maisel, taking what had been a fun side-project, for which he earned no money, and turning it into something quite costly and astoundingly frustrating. Andy is quite clear that in settling he did not (and will not) admit to any guilt, as he still believes that his use was legal:

After seven months of legal wrangling, we reached a settlement. Last September, I paid Maisel a sum of $32,500 and I'm unable to use the artwork again. (On the plus side, if you have a copy, it's now a collector's item!) I'm not exactly thrilled with this outcome, but I'm relieved it's over.

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is "fair use" and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

At the heart of this settlement is a debate that's been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.

The real shame here is that it's the ridiculously high statutory rates that caused this settlement to occur in the first place. If the potential liability weren't so high, I wouldn't be surprised to see Andy be willing to fight for what he believed was right. But with such a threat hanging over him, it's understandable why he settled. It also explains why so many people abuse copyright law this way. Since it's so often cheaper to settle... many people do, even if they believe they haven't infringed on anyone's copyrights.

Chilling Effects:

If you can't see how this is an example of the massive chilling effects of copyright law today, you're not paying very close attention. Andy had a very strong argument to explain how what he did was legal... and still agreed to pay $32,500 for a fun little side project he was making no money on. He was chilled into paying up, because the fight is just too expensive. And the chilling effects are nefarious and ongoing:

It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much — emotionally and financially. For me, the chilling effect is palpably real. I've felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same — maybe we wouldn't all feel so alone.

Create some artwork out of love and appreciation... end up getting threatened with a massive lawsuit and having to pay up, even though you believe what you did was perfectly legal. That's not what copyright law is supposed to be about.

The Backlash:

After Andy published his story, lots of folks picked up on it, and most of the commentary focused on Jay Maisel. There were articles and tweets calling him all sorts of names. Maisel ended up shutting down his Facebook page entirely. Andy, for his part, has urged people not to attack Maisel, and has made it clear that people shouldn't take this out on him. However, I think it's not at all surprising that this was the end result. We've seen this before. If you're seen as a bully, abusing copyright law for things it's not intended for, you shouldn't be surprised if there's backlash. I certainly don't condone the harassment of Maisel, but I can't see how anyone (least of all Maisel) should be surprised that it happened.

It does kind of make you wonder if the $32,500 was "worth it" to have your reputation dragged through the mud.

There were all sorts of smarter ways that Maisel could have handled this situation, but he chose to go the legal route.

Find the Line:

As a parting shot, Andy posted the following graphic, and asked where would people draw the line? What's fair use? What's infringing? A better question might be why should that even be a point of discussion at all? We have a case where something unique, new and creative was done... and was then stifled for no good reason. Nothing in what Andy did took away from Maisel's work at all. He suffered no losses. This is a shame of epic proportions, and yet another in a long list of examples of how copyright is used to censor, rather than to promote progress. The whole thing should make us all feel kind of blue...

Filed Under: 8-bit, andy baio, chilling effects, copyright, fair use, jay maisel, miles davis