Tag Archives: Copyright

Infinite loop (updated and bumped)

Originally posted 2011-09-20 18:09:02. Republished by Blog Post Promoter

Essex County historic courthouse detail(Originally published on July 22, 2011; see update at bottom!)

It can only mean one thing when you read this in a news article:

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right:  It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against  Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free.  This time the remitittur was from $62,500 to $2,250 per song.  Yes, per song.

I’ve never suggested that’s uploading music to the Net okay.  It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict?  Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered?  Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend?  Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around: Read More…

Digital Analogy: Behind the scenes of Aereo

MDB

MDB: Walks like a duck.

 

“In a case with far-reaching implications for the entertainment and technology business, the United States Supreme Court ruled on Wednesday that Aereo, a television streaming service, had violated copyright laws by capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee. …

Justice Stephen G. Breyer, writing for the majority, said the service was ‘not simply an equipment provider,’ but acted like a cable system in that it transmitted copyrighted content.” – The New York Times

 

Stephen BreyerBreyer, J.: We must decide whether the respondent infringes the exclusive rights of copyright owners by selling subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as those programs are broadcast over the air.

I am of the opinion that, viewed in terms of Congress’ regulatory objectives, the behind-the-scenes technological differences do not distinguish the respondent’s system from cable systems, which need to get permission to broadcast copyrighted content. Even though cable systems depend in large part upon the use of cables—whereas the respondent does not—the respondent’s set-up is essentially the same.

U.S. Supreme Court Justices Pose For Group PhotoSotomayor, J.: Aren’t cables just bundles of wires, though? I believe that they are. And we heard testimony that the respondent’s physical set-up—the machines in a warehouse in Brooklyn—does use components that themselves have wires. It would seem to me, then, that the respondent effective admitted that its system depends on cables, and therefore the conclusion that the respondent’s system is a cable system is not at all a hasty one.

And I graduated with honors from Princeton, albeit with a degree in History. But it’s not as if this is a complicated technological question that requires any specialized knowledge to answer.

Justice RobertsRoberts, C.J.: I agree with my colleagues that the respondent’s electrical contrivance is basically a machine built to infringe upon the exclusive rights of copyright owners, but I take issue with the comparison of the respondent’s apparatus to a cable system. To my mind, the respondent’s appliance is most like an artificial satellite, and specifically Sputnik 1. As my brothers and sisters on the bench will recall, the so-called “Elementary Satellite” boasted four external radio antennas to broadcast radio pulses.

Similarly, the respondent houses thousands of dime-sized antennas, each of which receives a television broadcast, which a transcoder then translates into data that can be transmitted over the Internet. We can not risk another so-called “Space Race.”

Justice KennedyKennedy, J.: Judge Roberts, I remember Sputnik. I knew Sputnik. Sputnik was a friend of mine. Judge Roberts, the respondent’s system is no Sputnik. The respondent’s system is more like——

Roberts, C.J.: That was really uncalled for, Judge Kennedy.

Kennedy, J.: You are the one that was making the comparison, Judge Roberts. Frankly, I think that the respondent’s system and the Soviet Union’s polished metal sphere—the one whose launch ushered in an age of new political, military, technological, and scientific developments—are so far apart in their objectives that I’ve completely lost my train of thought. No, wait! I remember: The respondent’s system is like a steam locomotive, and railroads were very good for America. I vote to acquit.

Justice KaganKagan, J.: There’s an old saying: “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” I have given the respondent’s system, as it was described and explained to us in detail by lawyers for both sides during oral argument, and as the records of the Patent Office illustrate it, and I have reached the conclusion that what we’re talking about here is a duck.

But I mean that literally. The respondent’s system is an actual duck, in that it is a waterbird with a broad blunt bill, short legs, webbed feet, and a waddling gait. Interestingly, ducks themselves are often confused with several types of unrelated water birds with similar forms, such as loons, grebes, gallinules, and coots.

Breyer, J.: I have been called a “coot,” a term that I understand means “a foolish or eccentric person, typically an old man.” Read More…

Overblogged

Originally posted 2011-07-05 16:43:04. Republished by Blog Post Promoter

We wouldn’t that happening to you or to me.  So this week, while I am guest-blogging at Overlawyered, I will probably not have all that much to say that’s new over here.

I can, however, recommend some fine, very recent Overlawyered posts that are topical to this blog.  These two are by me:

  • Paulie Unsaturated:  About the silly trademark lawsuit between one Paulie and another Paulie.  One of them is on a TV show.  The New York Post, meanwhile, is utterly confused by the whole intellectual property concept.  Or concepts. Hilarity ensues.
  • Assigned Counsel:  The latest revolting developments in the Righthaven lawsuits.
These two aren’t by me, but should have been LIKELIHOOD OF CONFUSION® posts themselves, and perhaps someday they will be:Edison's first phonograph
  • Vintage Sound Recordings:  Many such finds are lost in a copyright maze, applying American copyright rules that “infuriate scholars, archivists, musicians and the conservationists who preserve fragile recordings. They fret that by the time the recordings become available, many will be beyond salvation.”
  • Annals of Criminalization: “The Senate Judiciary Committee has unanimously approved S. 978, a bill that would raise from a misdemeanor to a felony the unauthorized performance or streaming of a copyrighted work when the infringement takes place at least ten times and either reaps $2,500 or more in revenue, or avoids the payment of license fees whose fair market value would exceed $5,000.”  Walter links to two dissenting opinions about whether this is such a bad thing or not.

Best of 2011: What “beating Righthaven” means

Originally posted 2012-01-01 00:01:43. Republished by Blog Post Promoter

First posted November 3, 2011.

Supreme Court and U.S. District CourtInstapundit links to Donald Douglas’s blog post, Beating Righthaven.  Excerpt:

Righthaven files “no warning” lawsuits. That is, it gives no advance notification to defendants, which violates the norm of providing “take down notices” to those suspected of copyright violations. By doing this, Righthaven — which made a speciality out of suing small-time bloggers and “mom-and-pop” businesses — was able to scare the bejesus out of its targets, who then would settle out of court generally in the three to five thousand dollar range. Defendants were threatened with the possibility of a $150,000 judgment and the forfeiture of their website’s domain name (URL address). . . .

Righthaven’s model is entirely predatory, and the company soon earned everlasting enmity by filing lawsuits against folks who were unemployed, on public assistance or disabled. Righthaven, for example, sued cat-blogger Allegra Wong of Boston, who was unemployed and receiving “financial support from a companion.” Righthaven also sued Brian Hill of North Carolina. Hill is autistic and chronically ill and is supported by Social Security disability benefits. My attorney David Kerr successfully defended Hill, whose story was featured in the New York Times, “Enforcing Copyrights Online, for a Profit.”

There’s a lot that’s “frightening as hell” going on out there with IP “enforcement” — a word I didn’t put quotes around when I used to do it for Brands You Must Know, because the kind I used to do didn’t need them.  It was legitimate, based on easy to comprehend ownership rights, consumer protection concerns and, yes, a concept of fair warning even to a lot of defendants who didn’t deserve it all.

Now IP is a racket.  Most of the readers of this blog practice IP law, and know exactly what I mean — because of what they do and, well, because they read this blog, and have surely detected a turn in my attitude toward the topic from years past.

Practical lawyering in an area of law I actually like often disgusts me now.

Look, I “majored” (not really how they designate this where I went to school, but stick with me) in economics — focusing my learning not in money or finance, which I know little about, but the prediction of human behavior when incentives are provided, withdrawn or distorted.  And I “minored” in political science.

So I was not born yesterday.  I have always understood that much of what is happening in IP law is entirely predictable once we understand that the value of the estates in intellectual property has skyrocketed, for any number of reasons, unpredictably.  But from that premise, it is not news that the incentive to capture rent — get as much of the action as possible — will rise concomitantly, leading to a rational increase of investment by stakeholders in making changes in the regime governing the allocation of such rights.   Read More…

“Aereo” smiths (part two)

aereo-logoIn part one of this post I laid out the following propositions:  (a) We operate in a common-law system, so want and expect judges to apply the law to new factual situations; (b) intellectual property law is — as the Aereo case demonstrates — the very fount of new factual situations in our time; (c) lawyers try to navigate this system on behalf of clients but often find themselves or their clients being accused of cynical manipulation of the law for doing so; and (d) judges are making substantial policy decisions that not only affect the development of intellectual property law but have far-reaching consequences on commerce, culture and governance.

The last point in yesterday’s post concerned the judicial gloss on the Copyright Act, by way of the of the Supreme Court in Sony and the Ninth Circuit in Napster, by which it was decreed that the fair use as defined under the Act permitted time-shifting (recording Carson on your Betamax while you’re at work) and at least certain kinds of space-shifting (accessing media bought in one format via another, typically online format).  In Aereo, now, the Supreme Court is going to decide what the Act has to say about what some call “place-shifting.”

But  the Act doesn’t say a thing about any of this shifty business.  So aren’t the courts just winging it?  Well, no.  They’re engaging in the business of judging, as understood in Angl0-Saxon law.  But they aren’t deciding whether the equitable doctrine of mistake applies to a hitherto-unknown cow pregnancy or how to apply the ancient principle — judge-made in the first instance — of proximate cause a new industrial paradigm:  They are interpreting a statute representing very specific legislative policy decisions.  While the policies underlying copyright are not necessarily the ones the RIAA and friends would have you think they are, at least the legislative process operates within the confines of modern representative democracy.  What happens, however, when judges, um, circumvent that process and make their own policy decisions about copyright?

It’s not entirely fair to say that they are circumventing.  They’re mostly just judging.  As Michael Carroll, now a professor of law at American University put it in this 2002 law review article,  “copyright law has become quite complex and much of the Copyright Act . . . reads like  a very finely detailed contract.”  A contract, that is — as he says — “worked out among industry representatives and enacted by Congress.”  That’s “enacted by Congress” (Congress is supposed to be “us”) in the sense of “please, sir may I have another.”  But Congress and the Copyright Act simply can’t keep up with change.

Now, if you’re like me you may not like the idea that judges create policy and even thwart democracy on social issues, as they do with depressing regularity.  These rulings have a much bigger impact on our society than whether you can watch some stupid show or sporting event on your iPiece from Jupiter at 4 AM.  But we’re talking about something different here, part of which is judges actually doing their jobs.  While Congress can ignore problems or refuse to wrestle with hard questions, and mostly does so or even makes things worse by acting (just ask Judge Michel), courts can’t ignore the questions that come to them about whether a certain technology is infringing by saying, well, I don’t see anything here about no shifting.  When an issue of how the law as of that moment should apply to a new technology — or a new “legal head fake” – comes up and qualifies as a real case or controversy, judges have to make the call.

But what calls!
Read More…

“Aereo” smiths (part one)

aereo-logoUPDATE, June 25, 2014:  The Supreme Court has ruled.  [Still, read this.  Then read this. -- RDC]

If you are a real IP lawyer, or have a TV, or read this blog, you probably already know what Aereo is.  You probably also know that the Supreme Court heard oral argument about this Aereo business last week.

But let’s just say I don’t know what Aereo is.  If I didn’t know before extremely recently however — given that I don’t have a TV, in fact — I’d need a short, simple definition, because while I care about intellectual property law i don’t care all that much about TV.

So based on the back-filling I did today at the Copyright Society’s New York Chapter luncheon, which featured a panel of Aereo stunt men, I would say this captures it nicely and simply:

Here, briefly, is how Aereo works: You pay $8-ish a month, and get assigned a mini-antenna, roughly the size of a dime, that is located in a warehouse in Brooklyn. Aereo has thousands of these antennas, each of which is assigned to a single user and connected to a single DVR-like device. When you want to watch, let’s say, “The Voice,” Aereo’s app pulls the show from your antenna, streams it to your device, and makes a copy that is only viewable by you. If 40,000 other Aereo users are watching “The Voice” at the same time, there will be 40,000 dime-sized antennas streaming 40,000 identical copies of the show onto 40,000 devices and into 40,000 DVRs.

Get it?  In other words, Aereo is a variation on what Matthew David Brozik called the now-defunct Zediva service in a post from 2012:  “The world’s longest extension cord.”  It’s a system to watch TV that you pay for but not quite where it was supposed to be delivered — designed under the close auspices of a patent lawyer, of course.  Or a copyright lawyer maybe?  Or a both of them lawyer:

Aereo’s entire business model is based on a legal head-fake. Under copyright law, 40,000 people with their own antennas can watch TV at home for free, but if you want to have one giant antenna that picks up TV shows and distributes them to an audience of 40,000 people, the law calls that a “public performance,” and you have to pay a copyright fee to do it. Aereo didn’t want to pay those fees, so it figured out a way to make what is essentially a simultaneous mass broadcast look like lots of little broadcasts.

Trademark lawyer Ron ColemanYeah!  Copyright lawyer!

Can’t you just see the guy with all the latest jurisprudence on this kind of thing propped up in front of him while he tells the engineers and that sort of person where to plug in the sidebanger and how far he can string out the whoseamacallit?

Not that there’s anything wrong with that, though — right!  Or, maybe yes?

This seems to be an issue, actually:  “Legal head fake,” says that last excerpt.  Another take on last week’s Aereo show:  “Oral argument revealed a widespread disposition to view Aereo’s business model as too clever by half.”

Really? This idea — that the law’s job is to look past mere compliance and “see what’s really going on” — frequently results in justice.  Here, however, it bothers me. Read More…

Righthaven – Media Bloggers Association files amicus brief

Originally posted 2011-02-24 10:20:41. Republished by Blog Post Promoter

I’ve written a little bit about the Righthaven lawsuits before.  Now, as reported in the Las Vegas Sun, on behalf of the Media Bloggers Association I’ve helped write something that could matter, namely this amicus brief, the laboring oar of which was manned by Marc Randazza and J. Malcolm DeVoy out of Randazza’s shop:

The focus is on the propriety and scope of copyright statutory damages in the situation.

UPDATE:  They opposed; we replied.

You are not the boss of me!

Internet Cases logoEvan Brown reports, as he does so often, about an important ruling that deals another blow to attempts at using intellectual property, and particularly its growing penumbras in the secondary liability area, law as a magic legal elixir to fix ever perceived legal or commercial problem:

After defendant left plaintiff’s employment to co-found a competing company, plaintiff sued defendant personally for copyright infringement based on the new company’s website’s resemblance to plaintiff’s website. The infringement theory was interesting – plaintiff alleged that defendant did not commit the infringement himself, but that he was secondarily liable for playing a significant role in the direct infringement by the new company’s employees. . .

It didn’t fly in BioD, LLC v. Amnio Technology, LLC, 2014 WL 268644 (D.Ariz. January 24, 2014).  Evan explains:

In this case, the court held that plaintiff had not alleged enough detail to state a claim of secondary liability against defendant. Instead, the complaint simply recited the elements of contributory and vicarious liability. . . .

[Plaintiff failed to allege that d]efendant, as a non-employee (but founder) of the new company, was personally responsible for the content of the new company’s website. (Interestingly, the court held it was not sufficient to allege that defendant was a founder of the new company. Although plaintiffs alleged some factual details about what was actually copied from plaintiff’s website, they alleged no factual details as to defendant’s personal involvement in the infringement.) . . .

Plaintiff’s attempts to impose secondary liability were (if they had worked) a clever method for accomplishing the same objective as piercing the corporate veil. Granular control by the individual founder could be equated with the “alter ego” aspect of the veil-piercing analysis. The absence of such specific control by the individual defendant, however, left the possibility of liability only with the company.

This last paragraph does raise an important issue:  “Granular control by the individual founder could be equated with the ‘alter ego’ aspect of the veil-piercing analysis.”  Here the missing factual piece seems to have been the actual connection between the former employee, also the “founder” of the allegedly infringing website, and his actual control — necessary under vicarious liability doctrine (the secondary approach relevant here) — over the infringers.

It seems this was an attempt to use secondary liability “get at” the former employee, whose fingerprints were deftly, or perhaps entirely innocently, nowhere to be found on the allegedly infringing website, personally on the copyright claim.   Read More…

Best of 2011: Infinite loop

Originally posted 2011-12-30 01:44:12. Republished by Blog Post Promoter

First posted (in updated form) on September 20, 2011.Essex County historic courthouse detail(Originally published on July 22, 2011; see update at bottom!)

It can only mean one thing when you read this in a news article:

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right:  It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against  Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free.  This time the remitittur was from $62,500 to $2,250 per song.  Yes, per song.

I’ve never suggested that’s uploading music to the Net okay.  It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict?  Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered?  Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend?  Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around:

The court is intimately familiar with this case. It has presided over three trials on this matter and has decided countless motions. It has grappled with the outrageously high verdict returned in a case that was the first of its kind to go to trial. The court is loath to interfere with the jury’s damages decision. However, the Constitution and justice compel the Court to act. . . .

To protect the public’s interest in enforceable copyrights, to attempt to compensate plaintiffs, and to deter future copyright infringement, Thomas-Rasset must pay a statutory damages award,” Davis wrote. “Plaintiffs have pointed out that Thomas-Rasset acted willfully, failed to take responsibility, and contributed to the great harm to the recording industry inflicted by online piracy in general. These facts can sustain the jury’s conclusion that a substantial penalty is warranted. However, they cannot justify a $1.5 million verdict in this case.

And here we go again.

Judges can’t fix this; it isn’t even their job.  Congress, for its part, is running in the completely opposite (wrong) direction.

It’s the Kopyright Krackup all right.  Coming soon to a streaming server far, far from you… and right in your living room.

UPDATE:  And the First Circuit sends it right back — the infinite loop continues!  As Venkat explains:

The $625,000 award in favor of Sony is reinstated, and Judge Gertner has to give Sony the choice between accepting a lower award ($62,500) or a new trial. Judge Gertner’s analysis of the Due Process limits on statutory damages and the feelings of Congress about peer-to-peer file sharing, while interesting, are swept aside (for now). The million dollar question, and one I wish the court had answered, is whether Sony can immediately appeal the reduced award or whether it has to proceed in the trial court. Will Sony be trapped in an “endless loop” of going through trials resulting in a damage awards that the court reduces on the basis that the awards are “excessive”? (See Ben Sheffner’s post about the Thomas-Rasset case: “Labels reject remittitur, opt for third trial on damages in Jammie Thomas-Rasset case.”)

The other question that the First Circuit’s opinion raised but didn’t address is: if statutory damages are to be determined by the jury, why does the trial court get to take this decision away from the jury and reduced it via a remittitur? What is the effect of Feltner on the common law practice of reducing damage awards? Where an award is within the statutory range, it seems odd for the court to have authority to reduce it via a remittitur–isn’t this the point of Feltner?.

 

Now you can go Holmes again!

Watson and Holmes

Which one is Brozik? Is Coleman really that old?

“Knock, knock.”

 “Who’s there?”

  “Watson.”

   “Watson who?”

    “Not much. But there is this decision from the U.S. District Court for the Northern District of Illinois…”

It would be tempting, to be sure, to try to embellish a discussion of the recent Sherlock Holmes decision with Holmesian flourishes, but this blawger isn’t going to do that—even though the decision has recognized his—and yours, for that matter—freedom to use the “characters, character traits, and other story elements from Sir Arthur Conan Doyle’s Sherlock Holmes stories”—or at least those published before 1923. That said, a simple recitation of the relevant facts is in order—a method Holmes himself might have employed—in a bulleted list (and Holmes would have been able to tell you whether I am left- or right-handed just by examining these bullets!):

  • Sir Arthur Conan Doyle wrote four novels and fifty-six short stories featuring the fictional characters Sherlock Holmes and his friend and chronicler Dr. John H. Watson.
  • The first story, “A Study in Scarlet,” was first published in 1887 (in the United States in 1890). Forty-five further stories and the four novels were published in the U.S. before January 1, 1923. All of these works are in the public domain.
  • The remaining ten stories, published after 1922, are still protected by copyright, owned by a company whose principals are relatives of Conan Doyle.
  • The plaintiff of Leslie S. Klinger v. Conan Doyle Estate, Ltd. is, among other things, an anthologist of new Sherlock Holmes stories. He co-edited an anthology of such works published by Random House, which had entered into a licensing agreement with Conan Doyle Estate, Ltd. to use the characters of Holmes and Watson, notwithstanding Klinger’s belief that no license was required by law. More recently, however, when Klinger sought to have a second anthology published by a different house—and Conan Doyle Estate, Ltd. again demanded that a licensing agreement be entered into (and threatened to pressure retailers not to sell the new book absent such a license)—the second publisher balked, prompting Klinger to sue Conan Doyle Estate, Ltd.
  • Klinger sued in the United States District Court for the Northern District of Illinois for a determination of the “copyright status of a list of specific characters, character traits, dialogue, settings, artifacts, and other story elements in the [Sherlock Holmes canon; the ‘Canon’].” After some procedural missteps—including a failure of Conan Doyle Estate, Ltd. to appear!—Klinger was permitted to move for summary judgment (which the Estate was permitted to oppose, despite its default). Read More…

Copyright injunctions Рplus ̤a change

Originally posted 2011-11-28 14:33:13. Republished by Blog Post Promoter

Morning in ManhattanLast summer I mentioned the new law in the Ninth Circuit — or, as I insisted, the clarification of the existing law — to the effect that a copyright plaintiff is not entitled to a presumption of irreparable harm, and thus an injunction, merely upon a finding of infringement.

David Kalow and Milton Springut point out in the New York Law Journal that this has been the law in the Second Circuit since the 2010 decision in Salinger v. Colting – reported on here for other reasons.  These lads usually represent plaintiffs, but their article is well balanced and worth taking a look at.  Despite their typical position in copyright litigation, they’re not too broken up about this development, as they explain:

[I]n both copyright and trademark cases, the Second Circuit held that once likelihood of success was shown, there arose a presumption of irreparable harm. Thus, as a practical matter, a trademark or copyright owner seeking a preliminary injunction had to focus on proving a strong likelihood of success on the merits. Once proven, and absent unusual circumstances (most usually delay in seeking relief), entry of a preliminary injunction was almost routine. . . .

Ostensibly, Salinger appears to be a major change, adding significant new burdens for a copyright or trademark plaintiff seeking a preliminary injunction. However, a review of the decided cases in the Second Circuit since Salinger reveals that generally the new standard is of little practical difference. Once likelihood of success on the merits is shown, it is usually an easy matter to prove the other factors. We discuss each of the three Salinger factors (aside from likelihood of success), what is required to meet them, and how courts have found them to be satisfied.

Yep, that’s how it usually works out.  Plaintiffs don’t get a free pass on irreparable harm, but once plaintiffs have proved infringement, there aren’t too many situations where they can’t prove harm too.

What is interesting about the analysis in the article, and a little troubling, is that it seems to confirm just what a defendant’s lawyer would expect:   Read More…

Fight for your right to parody. Or don’t.

GoldieBlox logoSometimes, just when a copyright dispute is getting very interesting, the parties go and do the unthinkable: They resolve their differences like reasonable people, and then there’s nothing left to do but imagine how things might have played out. And here we are.

Recently, in a very short period of time—less than two weeks—these things happened, in fairly rapid succession:

  • A company called GoldieBlox—established in 2012 to help introduce girls to the field of engineering—produced and released an advertisement for its products.
  • The GoldieBlox spot got noticed—because it was twelve kinds of awesome—but one of the ways in which it was awesome is the parody of the song “Girls,” recorded and released in 1987 by the Beastie Boys, used as the soundtrack.
  • GoldieBlox was contacted by counsel for the Beastie Boys. Said counsel reportedly notified GoldieBlox that because the Beastie Boys and writer/producer Rick Rubin, as copyright holders
    of the original song, had not given—and did not now give—permission for a version of the song to be recorded and used, GoldieBlox was therefore infringing the exclusive intellectual property rights of the Beasties/Rubin, and that unless such infringement ceased and GoldieBlox desisted… well, you know the rest.

beastie_boys_logo2

  • GoldieBlox sued the Beastie Boys and Rubin—with admirable alacrity—for a declaratory judgment… and the Internets went nuts, in part because many laypersons do not understand what declaratory judgment is (remember the Robin Thicke/Marvin Gaye story from a few months ago?), and in part because many people thought they’d read or heard that the Beastie Boys had sued GoldieBlox.
  • Then Beastie Ad Rock tweeted: “You guys..Don’t get it twisted. We did not threaten to sue Goldiblox..THEY’RE SUING US.” Which was accurate, if a tad disingenuous. A distinction without a difference, one might say.
  • And then GoldieBlox did something seemingly—see below—very classy: The company posted an open letter to the surviving Beastie Boys stating, among other things, that the company was unaware before hearing from the Beasties’ counsel that the late Adam Yauch had “requested in his will that the Beastie Boys songs never be used in advertising” and for that reason, even though “we believe our parody video falls under fair use, we would like to respect his wishes and yours,” GoldieBlox had already removed the song from its video. (Of course, the unredacted version can still be found with no effort at all, but it would be irresponsible for this blawg to point you to anywhere specific.)

Licensed to ill in NY and NJ.

I write “seemingly,” because one might argue that GoldieBlox has already gotten everything it had hoped to from its song parody, and therefore removing it now is merely… er, lip service. Indeed, some have suggested that GoldieBlox’s entire goal from the start was simply to get press, and that proactively suing the Beastie Boys was just a part of the plan—except that to bring a legitimate suit for declaratory judgment one needs to allege a real controversy, and there would have been none if the Beasties’ lawyers had not threatened legal action. And it’s not as if you can force someone else’s lawyer to threaten you with litigation. The most you can do is use their intellectual property without permission in a video that goes viral and… wait just a minute…!)

This will probably be the end of the matter. Read More…