Building a Slippery Slope to Code

by Jay Marshall Wolman

I’ve been following the efforts of Carl Malamud and Public.Resource.Org to free the law.  In short, and inadequately summarized, sometimes lawmakers incorporate by reference or otherwise make part of the law works that are subject to copyright.  Thus, for example, a state may require electricians to comply with the NFPA National Electrical Code.  And, for the low low price of $98, the NFPA will sell it to you.

“But, wait!” you may say, “why should I have to pay for a copy of the code when the code is the law?”  And that’s the kind of thing Public.Resource.Org has been questioning.  It originally bought copies of these codes and published them.  And, earlier this year, they lost a law suit brought by the publishers of these codes, and they have been enjoined from publishing them.  They also suffered a second defeat, in another case, last month, involving the State of George’s official, but privately published, annotated code (the code is in the public domain, but the annotations are not, despite legal reliance on the annotations).

From a due process standpoint, it is unreasonable to be held accountable for a violation of a law or code, locked up behind a copyright, especially where there is no defense for ignorance.  On the flip side, the fact that code authors should have to give their works away for free just because (even though at their encouragement) some government entity adopts it as law, gives me pause.

Codes sound very law-ish by their nature that it’s easy to mentally treat them as something that shouldn’t even be copyrightable, like a phone book.  But, since there is some creativity involved, with choices made as to what is safe and what is not, it probably is copyrightable.  Thus, there’s no legal reason why one class of copyrightable works should be treated differently than any other.  And republication would, generally speaking, be infringement.

Let’s use a different type of copyrightable work to illustrate.  Assume the State of New Columbia requires all teenagers to graduate from high school.  And let’s say the curriculum, as implemented by the schools and teachers, required every student to read and do a book report.  One teacher chooses “Twilight” for some horrible reason, presumably related to the sorry state of our educational system.  Thus, essentially by law, every student in that teacher’s class must obtain a full copy of Stoker’s ugly stepchild.  Should I, then, be allowed to post a PDF of that book for any of the students to download for free, without permission of the author?  Of course not.  Even if she lobbied the schools.  So long as the schools fairly make the book available to borrow, so students can actually do their assignment, due process should be satisfied.  So, too, with the codes.  So long as an electrician can fairly access and learn what he/she needs to do, that should be sufficient.

The Google Books saga is informative, and there was a fascinating article in The Atlantic yesterday that got me thinking about this again.  About two and a half years ago, Google prevailed in an appeal before the Second Circuit in its case against the Author’s Guild.  Google had embarked on an ambitious project to scan millions of books in order to make snippets of text available in search results.  The Second Circuit found that Google’s reproduction of the works, but limited to the snippets, was fair use.  This is where Google’s outcome differs from the losses of Public.Resource.Org.  The latter published and made available the full texts of the codes online, unlike Google, which restricted the amount of the works displayed.  This was a key distinction made by the courts.

Of course, sometimes you can republish a work wholesale for comment as fair use.  And Public.Resource.Org could well prevail in these arguments on appeal.  It will be interesting to watch, both for freeing the law and, if successful, for whatever else might be freed just because the government made it required reading.

From engagement photo to political attack ad…

In May of 2010, Thomas Privitere and Brian Edwards, a gay couple, hired a photographer to take pictures of the two men in a New York City park.  Their favorite photograph displayed the two men kissing and holding hands with the Brooklyn Bridge in the background.  The couple liked the picture so much that they posted it on the Internet as their engagement photo.

Cut to Spring of 2011:  Public Advocate of the United States, a conservative nonprofit, needed a photograph for a political flyer to take a Republican State Senator from Colorado to task for voting to approve same-sex civil unions.  Public Advocate ran across Privitere’s and Edwards’ engagement photograph on the Internet.  Presumably, the nonprofit believed Coloradans would find an image of two men innocently and chastely kissing inherently gross, and decided to use the photo for its attack ad.  Before doing so, Public Advocate doctored the image – removing the Brooklyn Bridge and replacing it with imagery reminiscent of a Colorado mountaintop.

Unsurprisingly, Privitere, Edwards, and their photographer were not flattered when they discovered that the couple’s engagement photo had been used by a right wing “think tank” to appeal to Colorado voters’ homophobia.  Earlier this month, the three filed suit against Public Advocate in federal court for copyright infringement on the photograph and misappropriation of the couple’s likeness.

Public Advocate’s use of the engagement photo should certainly be morally reprehensible to any reasonably tolerant person, and the photographer appears to have a very strong copyright infringement claim against the nonprofit.  Public Advocate has no real fair use defense here.  The political mailer was not meant to criticize or parody the original photograph.  Instead, it was meant to denigrate a politician’s views on same sex marriage or civil unions.

However, were the couple’s rights of publicity violated?  That question is a much harder one and could likely swing either way should this case proceed to trial. Rights of publicity laws are generally intended to protect persons from the unauthorized commercial use of their likenesses.  For example, Nevada’s rights of publicity laws define “commercial use” as being “for the purposes of advertising, selling, or soliciting the purchase of any product, merchandise, goods, or service.”

Here, Public Advocate has a strong argument that the flyers that it produced were purely political speech protected by the First Amendment.  The organization was not attempting to use the photograph for any commonly recognized “commercial” purpose.  Rather, it was using the image to advance its objection to homosexual civil union.

On the other hand, Public Advocate’s own website proclaims that some of its primary goals are to provide “strong and vocal opposition” to “[s]ame sex marriage and the furtherance of so-called ‘Gay Rights’” and to decry the “mainstream media’s promotion and glorification of . . . homosexuality.”  (Public Advocate is the organization that infamously compared same-sex unions to state-sanctioned bestiality, and claimed that allowing gay men to serve in the Boy Scouts was akin to “being an accessory to the rape of hundreds of boys.”)  Its website prominently asks social conservatives for contributions so that it might continue spreading its message to the masses.  If a court were to view the political mailer containing the doctored photograph as, in part, a solicitation for increased funding, the requisite “commercial use” may very well be present.

 

 

What What, Fair Use on a 12(b)(6)?

“What what, in the butt?” was the question recently before justices Easterbrook, Cudahy and Hamilton in the appeal of Brownmark Films LLC v. Comedy Partners from the Eastern District of Wisconsin. (Opinion)  At issue was whether South Park’s interpretation of Samwell’s “What What In The Butt,” as performed by Butters in the episode “Canada on Strike,” was non-infringing fair use under 17 U.S.C. § 107.  More interestingly, though, was that Comedy Partners raised the defense on a 12(b)(6) motion to dismiss – without any discovery or opportunity therefor (see FRCP 56(d), formerly Rule 56(f)).  The Eastern District of Wisconsin agreed that South Parks’ rendition of What What In the Butt was fair use, and dismissed the Complaint at the pleading stage.

Brownmark did not include the original What What In the Butt video, nor South Park’s adaptation, in its Complaint.  South Park Digital Studios did, however, attach both videos to its motion to dismiss, relying on the incorporation by reference doctrine.  On appeal, the Seventh Circuit resolved this issue in South Park’s favor:

Because the claim was limited to the production and distribution of a single episode, the district court was correct to rely solely on the two expressive works referenced in Brownmark’s amended complaint and attached to SPDS’s motion, as well as the allegations in the complaint, to decide on the fair use defense.

SPDS relies on the incorporation-by-reference doctrine to maintain that reliance on the attached works does not violate Rule 12(d), which requires that Rule 12(b)(6) or 12(c) motions containing materials outside of the pleadings be converted into motions for summary judgment. It is well settled that in deciding a Rule 12(b)(6) motion, a court may consider “documents attached to a motion to dismiss . . . if they are referred to in the plain- tiff’s complaint and are central to his claim.” Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). In effect, the incorporation-by-reference doctrine provides that if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant’s 12(b)(6) motion to a motion for summary judgment. The doctrine prevents a plaintiff from “evad[ing] dismissal under Rule 12(b)(6) simply by failing to attach to his complaint a document that prove[s] his claim has no merit.” Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). (Op. at 5)

But the Seventh Circuit noted a curious wrinkle to this analysis:

While the application of this doctrine to the present case would seem to allow SPDS’s action, no court of appeals has ruled that the content of television programs and similar works may be incorporated by reference. Several district courts have concluded that the doctrine does apply to such works. See, e.g., Burnett v. Twentieth Century Fox, 491 F. Supp. 2d 962, 966 (C.D. Cal. 2007); Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1131-32 (C.D. Cal. 2007); Daly v. Viacom, 238 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2002). And we think it makes eminently good sense to extend the doctrine to cover such works, especially in light of technological changes that have occasioned widespread production of audio-visual works. The parties, however, did not brief this issue, and so we reserve the resolution of the question for a later date. (Op. at 5-6)

Ultimately finding that the Eastern District of Wisconsin was within its jurisdiction to grant dismissal, the appellate court engages in a relatively truncated fair use analysis under the four factors of 17 U.S.C. § 107.  The reason for the brevity?

Since Brownmark never opposed SPDS’s fair use argument in the district court, we consider the argument waived. (Op. at 9)

Ouch.  And, since it’s the Seventh Circuit, that means automatically shifting attorney’s fees and costs under 17 U.S.C. § 505.  What What In the Butt, Indeed.

Perhaps the overlooked gem of this opinion is that the Seventh Circuit has forever enshrined my favorite South Park meme: Internet Money.

The South Park Elementary school boys—Cartman, Stan, Kyle and But- ters—decide to create a viral video in order to accrue enough “Internet money” to buy off the striking Canadians. The boys create a video, “What What (In The Butt),” (WWITB) in which Butters sings a paean to anal sex. Within the show, the video is a huge hit, but the boys are only able to earn “theoretical dollars.”

…

As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicat- ing that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video. (Op.)

Of course, when I use “Internet Money,” it refers to settlements from BitTorrent infringers and others who pay for their wrongdoing.  But, it is evocative of the constant challenge of monetizing the digital ether of the World Wide Web.

ABA Journal Magazine Tackles Righthaven in May 2012 Issue

Remember Righthaven?  While it has been stripped of its intellectual property and claims against it keep piling up, the fat lady has not yet sung – and the ABA has noticed.

The May 2012 ABA Journal’s cover story is the aftermath of Righthaven.  Eriq Gardner, who Righthaven once sued for posting an image of an exhibit from one of its court pleadings, examined both sides of the copyright enforcement equation.  Marc Randazza and Ron Coleman are quoted in the lengthy piece, which centers on Righthaven but touches on the RIAA’s litigation campaign, the mass-joinder suits brought by porn studios, and the realities of plaintiff-side copyright enforcement.

Righthaven’s CEO, Steven Gibson, is quoted with the following observation:

“One of the questions for the article is why is it so difficult for copyright owners to hire competent copyright litigation counsel?” he said. “There’s not a lot across the country. Definitely not like personal injury lawyers. You can’t go into the phone book and find a listing. Why is it this difficult? Why isn’t there more copyright litigation?”

Yet, even with Righthaven.com no longer belonging to Nevada’s Righthaven LLC, he is optimistic about the venture’s future.

“Righthaven remains the vehicle for dealing with infringements on the Internet,” Gibson told me recently.

A motion by the EFF seeking personal sanctions against Gibson at a rate of $500 per day is still pending as of this writing.

The problems of online copyright infringement and enforcement are real, and few would argue that there is not some useful role of copyright in society.  These controls, however, cannot and should not completely gobble up protected speech – especially since the 1976 Copyright Act codified fair use in 17 U.S.C. § 107.  Even allowing breathing space for hilarious derivative works, much work needs to be done with respect to fighting infringement, even as the law for doing so remains in flux.

Bieber Bang Bus Presents

Artist alleges mural drove aesthetics of music video

Artist Maya Hayuk of Brooklyn filed a complaint against RCA Records and Sony Music alleging that several aspects of her mural “Sunshine” were incorporated into the music video for “I Only Wanna Give It To You” by Elle Varner.

In her complaint, Hayuk states that she her career includes more than 75 group an solo gallery shows, installations, and murals throughout the U.S. and several countries.  Her work has been licensed for use on several different goods, and she normally commands “premium fees and royalties” for their use in commercial settings.

According to the complaint, Hayuk originally created the mural for a music video, also called “Sunshine,” for a video by recording artist Rye Rye and M.I.A. In that music video, the artists rap in front of her mural. Hayuk claims, however, that she did not authorize the use of her mural in Varner’s video.

One of the most often-cited cases involving “incidental use” of artwork is Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997). In that case, a television show used a copyrighted poster as a piece of set decoration. In one scene, the poster was partially visible for 26.75 seconds. There was nothing in the show that called attention to the poster. It was never referenced, discussed, nor focused upon. The Defendant argued that this mere glimpse of a poster was a de minimis use or fair use. The Second Circuit, reversing the lower court, held that 26.75 seconds was enough to overcome the de minimis use defense. With respect to fair use, the Second Circuit held that the use was not allowed under that doctrine because there was no transformative element to the use.

The video at issue in this lawsuit differs from other similar suits in that the mural does not merely appear in the video as an incidental use, but that it includes scenes incorporating “videographic reproductions of Hayuk’s Sunshine.”

Indeed, the video seems to be aesthetically based upon the mural. The performers wear the same bright colors and patterns featured in the mural, with several scenes cutting to Varden dancing and singing in front of a brightly colored bed that looks similar to the mural, walking through a line of actors carrying boxes of similar colors, and, one of the biggest similarities, colorful circles that seem to be pulled right from the mural indicating cuts between scenes. While previous cases have dealt mainly with artists’ work being used in the background in movies, television shows, and music videos without permission, the difference here is that the music video director seems to have used the mural as the aesthetic basis for the video.

Because the mural seems to dominate the overall theme of the video rather than appearing just for a moment, it seems the claim has some traction.

Watch the video in question below.

Fair Use is Awesome

A number of weeks ago, the RLG scored a major fair use victory in Righthaven v. Hoehn. In that case, we argued that even using an entire editorial could be fair use as long as the fair user made a transformative use of the original. The Court agreed.

The issue of whether an entire work can be taken as fair use raised some controversy. The almost-always-awesome Ken Paulson doesn’t seem to get it, reading too much into the opinion’s dissection of the editorial in that case. But, it really is rather simple. The bargain we make with copyright owners is this: Creators of content get a monopoly over the commercial exploitation of their works. In exchange, we all get to engage in creative or transformative expression using those works, as long as we don’t go too far.

Withiout fair use, we don’t get this awesomeness — which uses the entirety of the original musical work. Would you want to live in a country where the video below is illegal? Creators have the right to profit from their works, but the rest of us get a right to free expression without having to hire a lawyer every time we want to use something that someone else made. Fair use. Learn it. Love it.

Cuz Fair Use be gangsta as a muthafucka.

Because this is what happens when awesomeness meets assholes who don’t understand fair use.

Jenzabar tries to suppress critical website through bogus trademark claim – fails

Public Citizen reports:

In a ruling this week, a Massachusetts trial judge upheld the free speech rights of a documentary filmmaking company against an effort by a Massachusetts software company to use trademark litigation to punish the filmmakers for the portrayal of one of the student leaders in the Tiananmen square protests. (source)

Sadly, this kind of thing happens all the time – companies (and individuals) frequently try to use trademark infringement to try and suppress what they perceive as negative attention.

Massachusetts Superior Court Judge John Cratsley granted summary judgment to the defendants because there was no support for the claim that a reasonable person might be confused as to whether Jenzabar sponsored the documentary filmmaker’s website. Decision here (courtesy of Public Citizen).

What is truly ironic about this case is that one of the chief perpetrators of the suit was Ling Chai, one of the student leaders at the Tiannanmen Square protests. After seeing this attempt to suppress free speech crushed, Chai shot over to Norway to attend the Nobel Peace prize ceremony, where fellow Tiannanmen Square leader Liu Xiaobo is being honored in absentia. Shame on Chai and Jenzabar.

H/T: The Great Ron

Lamebook, We Support You!

by Jason Fischer

I know this story is already a couple of days old, but we think it’s still worth reporting on.  For anyone who doesn’t know what’s going on, Facebook has been on a tear recently trying to flex its trademark muscles, suing and threatening to sue pretty much anyone who uses the word “book” in their name.  Well Lamebook, a site dedicated to poking fun at the oft times unintentional hilarity that appears on Facebook, has decided that its not going to be bullied.  On November 4, after receiving threats of litigation from the social networking giant, Lamebook filed a declaratory judgement action in Texas, asserting the collective First Amendment rights of its creators and users… and for that, we thank you (and donated a few bucks to your legal fund).

Keep fighting the good fight, Lamebook, so you can continue to remind us how funny ignorance can be.

Suicide note rights and liabilities

By their very nature, suicide notes are controversial documents.  Nobody likes to think or talk about them, despite accompanying many – probably most – of the suicides that occur in America.  There were 34,598 reported suicide deaths in 2007 alone, making it the fourth leading cause of death for adults aged 18-65.

So, where to begin?

Who owns the note

A Slate article from 2008 states that either the medical examiner or sheriff “controls the contents” of a suicide note.  While true, Eugene Volokh notes that this does not resolve the issue of ownership.  The imperative to investigate deaths grants the government custody over the note, but not title to it; the note, like other personal property, becomes part of the deceased’s estate to be disposed of by will or intestacy under the relevant state’s law. (It would be particularly interesting to see how this issue would resolve in a community property state.)

Republication of the note

Often, suicide notes are not republished, except in notable cases like Joseph Stack’s.  To a large degree, this is out of sympathy for the affected family and, from a newsworthiness perspective, the relative obscurity of many people who commit suicide.  However, there’s another specter lurking in the background: Copyright.

Even without a copyright notice or registration, any note longer than a few words is protected by copyright.  As explained above, those rights transfer to the deceased’s family or heirs after his or her death, and they control the republication of the note.

Volokh, however, notes an end-run around this tactic: When the note has been placed on the public record, such as in a medical examiner’s findings or police record, it may be republished from there.  Although the initial note would be covered by copyright, the renderings of it available on the public record, generally obtained through a federal or state Freedom of Information Act request,  could be used as a matter of fair use – citing to a public record – without seeking the owners’ permission.

The blame game

Suicide notes sometimes identify people, entities and events that spurred the event.  This step is sardonically encouraged by some suicide note-writing guides.  For the above-stated reasons, though, the people responsible for the suicide are seldom publicly identified.  When they are, though, criminal and civil consequences can follow.

Mere allegations of blameworthiness do not create liability, but may point prosecutors and family members in the right direction.  In Eisel v. Board of Education for Montgomery County, 597 A.2d 447, 450 (Md. App. 1991), the Maryland Court of Appeals identified the dearth of relevant case law not only in its state, but in others as well, concerning parties who caused or failed to prevent – in breach of a pre-existing duty – a suicide.  In that case, the deceased’s school had notice of the girl’s suicidal intent, and may have breached its duty to prevent it. Id. at 456.  Also relevant is the Eastern District of Wisconsin’s holding in Logarta v. Gustafson, 998 F. Supp. 998, 1004, (E.D. Wis. 1998), that liability for suicide may be proper “where defendant’s negligent or criminal conduct can be said to have caused the deceased to commit suicide.”

Surprising, however, is the dearth of case law regarding the note-writer’s liability for blaming another person as the impetus for his or her action.  For the reasons described above, it is not certain that those blamed for the death would even know about it, as the notes are not often published and their contents may not be shared with people outside the family who may be upset by them.  This does not mean, however, that a person implicated in the suicide of another is without recourse.

First, the blamed party could try to bring an action for defamation.  This requires showing that he or she was defamed by a false statement in the writing, which was published, whether intentionally or negligently, and damage was done to the blamed party.  First, the scope and nature of publication will vary widely on a case-by-case basis, and may affect the damage calculation.  Just as the ancients wondered if a falling tree made sound if nobody heard it, does defamation cause sufficient damages to warrant a suit if nobody sees it?  Second, the statement may not be purely defamatory, and reasonable minds could differ about whether someone pushed the victim to commit suicide — something that a potential plaintiff may not want to reveal in the case’s pleadings, even if untrue.

Other causes of action that come to mind are intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).  For IIED, the note-writer would have to act intentionally or recklessly, the identification of the victim in the note would have to be extreme and outrageous, and be the cause of the identified party’s real, actual emotional distress.  First, even if the writer’s note is intentional – and it almost certainly is – is it extreme or outrageous to explain to loved ones the underlying causes of a dramatic decision?  Even if there’s a claim that it is outrageous, such as identifying a person responsible for the death with a paragraph-long rant about how the deceased hopes it haunts and ruins the identified person’s life forever, it is only words on paper, rather than the kind of in-person physical conduct associated with IIED.  Again, if someone wants to put the incident behind him or her, litigating what he or she is entitled to for being blamed in another person’s suicide seems like a poor way to get on with life.

In that vein, NIED also seems like a poor claim.  NIED requires an underlying duty between the note-writer and the identified person to exist, which is breached by harmful conduct — namely the writer’s identification of the other person, causing damage through extreme and outrageous conduct.  In addition to the above discussion regarding extreme and outrageous conduct, there is the difficulty of finding a duty between the note-writer and the identified person.  While courts may be quicker to find one where a pre-existing relationship exists, such as a familial bond, finding one between acquaintances or even nemeses seems like a more difficult proposition.  Additionally, many states have specific requirements for NIED recovery, such as allowing recovery only for physical injuries, requiring the injured person to be a family member, being in the zone of impact for physical injuries, showing physical harm evidencing emotional distress, and more.

Finally, there is the issue of taste.  Suing someone’s estate in the wake of suicide, even if potentially viable, would strike most people as despicable.  Even if a plaintiff identified in a suicide note is ready to go “all the way to the Supreme Court” (until he or she receives a bill, that is), it is unlikely that a lawyer worth his or her salt will take the case.  This effect likely would be amplified in small towns and close-knit communities.

Dear Leader Randazza Quoted in NYT Article on SLAPP Suits

by Christopher Harbin

Marc was recently quoted in the paper of record regarding Slapp suits.

One tidbit of the article stood out as odd to me:

“The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.”

I don’t condone this practice, but would the doctors want  an assignment of copyright rather than a non-disclosure agreement? Wouldn’t fair use basically eviscerate any control the doctor or practice might have?  Also, what about non-copyrightable statements.  For example,  “My doctor cut off the wrong leg” and “My doctor is a crook” contain no protectable expression, so I’m pretty sure Medical Justice is giving out crummy advice.   How is their mission of  “protecting doctors from meritless malpractice suits” advanced by silencing critics anyways?

Video Game Playthrough Footage Should Be Fair Use

by Christopher Harbin

It’s pretty easy to get duped into buying a crappy video game.  A lot of video game marketing  is pretty shady.  Submitted for your consideration: the Madden “bullshot.”  Bullshots are promotional screen captures released by game companies that bear absolutely no resemblance to the final product. Gameplay footage released by game companies can be even more misleading.  Some games don’t even fairly represent the correct genre.  I’m looking at you, Brutal Legend.

As one of the “have it right this second” generation, I buy my games on release day before the reviews are out.  And because you can’t return video games after they’ve been played, I have been burned more times than I can count.  Hellgate: London was so bad, I half-expected to find it kicking my dog in the middle of the night.  In fact, I stabbed my eyes out with a fork because it was faster than uninstalling the game.   I’ll be here all week.  Try the veal.

So now I’m a big fan of watching video game playthoughs on various gaming sites and Youtube to decide whether a game is worth purchasing.  For me, I find that gameplay footage is much more useful to my purchasing decision than reviews — even video reviews that include snippets of gameplay.   Especially with long role-playing games, I like to be able to see the game at several different points to see if a slow game picks up or whether a game that looks good in the beginning sputters out.  For example, over at Giantbomb.com, two editors recorded and posted their complete playthough of Persona 4, a 100 hour Japanese role-playing game, which included their commentary as they played.   After watching about ten hours (not in one sitting, thanks), I decided to purchase a copy.

I can’t help but wonder if these playthroughs are copyright infringement.  There weren’t any litigated cases that I could find because  most companies probably welcome the additional publicity of their games.  But lately Rockstar Games has been taking down footage of their newly-released game, Red Dead Redemption.  Also, it appears that playthrough footage of Grand Theft Auto’s IV’s expansion “The Lost and Damned” has also been pulled.  I find this a tad odd as usually only publishers of crappy games care about gameplay footage leaked onto the web as they try to encourage new-release sales.   After reviews come out, the cats out of the bag.   Red Dead Redemption and The Lost and Damned both  enjoyed high praise, so I wonder whyRockstar appears to be  issuing  take down notices.   The Pollyanna in me would like to think that these takedown requests stem from some overzealous intern rather than from corporate goons demanding outright control of all possible uses of their work.

Anyways, I think the case for gameplay footage being fair use is relatively straightforward:

Purpose and Character of the Use: Usually gameplay footage is paired with some sort of running commentary that is either entertaining or informative.  This seems pretty transformative to me especially when considering that the medium is also transformed — video games are actively played and gameplay footage is passively watched.

Nature and Amount of the Use: Both these factors probably tip towards copyright owners.  There is obviously a difference between a 5 minute sample of gameplay footage and an entire game, though.  Interestingly, I find longer gameplay videos more relevant for my purchasing decision.

Market Effect:  Gamers like to play video games — not watch them.   Even games that are quite story intensive — like the fantastic Heavy Rain — are still pretty interactive.  The only negative effect on the market for video games is that consumers who would be disappointed after purchasing the game probably wouldn’t buy the game after viewing extensive gameplay footage.

To close, I know some of you are thinking that my analysis is biased because I have a horse in the race.  My response:  You didn’t play Star Trek: Online, man. You didn’t have to endure the steaming hunk of crap that was Daikatana.  I was there, man.  I WAS THERE!

IOC Uses DMCA to Suppress Luge Accident Video

by Jason Fischer

The opening day of the 2010 Winter Olympics was marked with tragedy when 21-year-old Georgian luger, Nodar Kumaritashvili, was involved in a fatal crash during a training run. The horrific event dampened the spirit of the international competition and colored the mood at the opening ceremonies later that night. As anyone would expect, the International Olympic Committee (IOC) sprung into action, responding to the accident with a multi-point plan:

• Shut down the luge track to prevent any more deaths… check.
• Conduct an internal investigation… check.
• Let an “independent” authority do its own investigation… check.
• Make immediate modifications to the luge track to stop future accidents… check.
• Make a press release, expressing regret, but denying all responsibility… check.

All perfectly acceptable anticipated responses. So why is this an IP story, you ask? Well, when the above-described actions failed to push this embarrassing catastrophe under the rug, the IOC turned to their attorneys, asking what else could be done to hush the whole thing up. Video clips of Kumaritashvili losing control of his sled and crashing into a steel pole were popping up all over the internets, repeatedly showing the world what happened. The answer from their legal team: Those people are violating our copyright in that clip! We can use the Digital Millennium Copyright Act (DMCA) to have that material removed from the web — so no one else will see it!

Now, giving the IOC the benefit of the doubt, I’m sure their intentions in suppressing the accident footage were honorable. Don’t misunderstand me. I recognize that what happened was horrible, and Kumaritashvili’s family and teammates are likely still reeling from the impact of it all. If they have to see that clip everywhere they turn on the web, that’s not ideal — especially if any of the commentary employing the clip was in poor taste, which I’m sure some of it was.

Even where all of this is true, U.S. copyright law was not implemented to choke off the flow of facts and news reporting. In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations. The IOC cannot use DMCA takedown notices to silence the speech it does not like. In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands. Just ask the artist currently known as Prince. This will be tough argument for the IOC, considering this isn’t the first time they’ve tried to misuse their copyrights.

Unfortunately, groups like the IOC don’t recognize that the appropriate response to inappropriate speech is not to look for the most expedient suppression mechanism — it’s more speech. The marketplace of ideas is perfectly capable of recognizing which commentary is a legitimate dissemination of news about the tragedy and which ones are morbidly childish. Sending out demand letters that essentially state “you have to pay if you want to show our Faces of Death video” is equally deplorable, no matter what the IOC’s intentions actually were.

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The article was originally published on The Tactical IP Blog

Streisand 101

by Jason Fischer

In an effort (I’m assuming) to be hip and relevant, my alma mater (and Randazza’s previous teaching gig) has begun adding courses to their curriculum that have little to do with the law or lawyering.  One example is a course called “Popular Culture and the Law,” to which the registrar has assigned the following course description:

This 2 hour seminar will examine social attitudes toward law, lawyers, and legal institutions through the viewing and examination of Hollywood films.  Film depictions of law students, juries, and judges will also be considered.  Each seminar session will focus in as much depth as possible on a particular film or films and a particular problem or aspect of law, law practice, ethics, or the image and status of the lawyer in American culture raised by the film(s).  The majority of the films will be viewed outside the classroom and will be considered as texts providing contemporary depictions of the subject matter to be examined in class.  In addition, readings will be assigned for each film and will form the basis for class discussion.  The films will be reserved in the library.  This will be a paper course which may be used to satisfy the Upper Level Writing Requirement.

My understanding is that this course is just another excuse for chicks in law school to watch Legally Blonde (2001) for the 4,821st time.  What a great way to spend your tuition dollars at a professional school!

Normally, I’m not the one in this forum to bitch about the state of legal education.  Marco & Co. do it regularly enough that I don’t have to.  (See here, here, and here.)  On the whole, my law school experience was a good one.  I took as much advantage of our externship program as I could, and I went out of my way to take classes from adjunct professors who I knew actually practiced what they were preaching.  What I object to is courses that have students watch reruns of “L.A. Law” (1986), or other fictional portrayals, as a means for teaching about the practice of law.  Aren’t there other subjects that could be presented that have more merit?

One subject jumps quickly to my mind, and regular readers of this blog will recognize it immediately.  I would call it “Streisand 101,” taking its name from actress and singer, Barbara Streisand, who effectively demonstrated that simply filing a lawsuit can bring about the exact opposite result from what you hoped to achieve.  It would be a skills course, aimed at training young lawyers to talk their clients down from filing certain kinds of lawsuits — the kind that end up splashed all over blogs like this one, fueling negative publicity for the client.  The intent would be to teach how to 1) determine the unintended consequences of a particular cause of action; and 2) effectively communicate those consequences to the client, giving them the opportunity to back away before doing any real damage.  The primary pedagogical tools would be roll playing and reviewing news stories about past P.R. blunders.

Finding great teaching examples would be about as challenging as falling off of a log.  Just this week, outdoor clothing maker, The North Face (TNF), is in the news again, moving forward with their lawsuit against The South Butt (TSB).  (You can find my previous coverage of the case here.)  Before TNF filed their lawsuit, TSB had a whopping $5,000 in gross sales — after months of being in business.  Now, TSB’s selling that much every hour.  Their attorney claims that, with 14 new employees, TSB has created more jobs in its home state than the Obama’s $800 billion stimulus plan.  (Source.)

The only downside that I see to so educating the next crop of attorneys is that a huge source of entertainment will be snuffed out.  What will we read about for fun when Micheal Jordan’s attorney convinces him not to sue the people who congratulate him?

“Twenty-Something Arrested at Twilight Movie” or “State Law Copyright Enforcement?”

by Jason Fischer

Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new douchey-little-vampire-kid movie, The Twilight Saga: New Moon.  No, she wasn’t detained for a psych eval, as anyone over the age of 16 should be for watching that movie.  (The only problem with implementing that policy is that state mental health facilities would be choked with nearly every female American between the ages of 17 and 45 — my sisters, my wife, and all of their friends included.)  It seems that she was arrested because theater employees saw her operating a video recording device (source).  Did the FBI come swooping in to put an end to this flagrant violation of Federal Copyright Law?

No.  It was those champions of copyright policy, the Rosemont Police.  As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission.  See 720 Ill. Comp. Stat. 5/21-10.

Now, don’t get me started about what a moron this woman is.  Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron.  Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement.  Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor.  With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well.  And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.

With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either.  She didn’t make her video for personal commercial gain, and she hasn’t distributed anything.  So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial.  Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal?  She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.

Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement:  I don’t think that the state of Illinois has the power to enforce its bootlegging statute.  Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time.  You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners.  Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.

Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional.  What say you Blevins?  Would you throw the book at this chick?

UPDATE:  Cook County prosecutors have dropped the charges against Ms. Tumpach (source).  Summit Entertainment, the film’s producer, and Muvico, the theater involved, have both made press releases, declaring that, while they are happy that Ms. Tumpach got off with only an attorney bill and a couple of nights in a holding cell, they are committed to a zero-tolerance policy, recommended by the MPAA, for handling camcorder use.