Building a Slippery Slope to Code

April 21, 2017

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…

October 11, 2012

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)?

June 8, 2012

“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

April 23, 2012

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

March 6, 2012

Artist alleges mural drove aesthetics of music video

February 28, 2012

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

August 6, 2011

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.