The list of Congressional Representatives who seem to actually understand copyright issues is a pretty short one (which can be counted with the fingers of one hand), so it’s always nice to see at least hints of another one beginning to wake up to the problems of today’s copyright laws. While much of the recent House Judiciary Subcommittee on Courts and Competition Policy focused on a frightfully silly attack on Google, not all of the discussion was apparently about Google. At one point, it appears that Rep. Darrell Issa asked the panelists if “strict intellectual property laws could be stifling competition and innovation.” Thankfully, Ed Black from CCIA was one of the panelists, and was quick to point out that this was absolutely true, even pointing out how copyright, at times, appears to “interfere with free speech.” I have no idea if this actually means much in the grand scheme of things, but it’s so rare to see an elected official even admit that there might possibly be some downsides to copyright law, that it seemed worth highlighting.
During the Presidential campaign in 2008, we noted that CBS had sent a takedown notice for a John McCain ad that included a snippet of the CBS Evening News with Katie Couric. We noted that this seemed silly and a pretty clear case of fair use. While not much more ever happened in that case, in a similar situation, we now have Fox News and one of its hosts, Chris Wallace, suing Missouri Senate candidate Robin Carnahan, claiming copyright violations, invasion of privacy and misappropriation of likeness — saying that the ad implies that Wallace endorses Carnahan. Fox has also sent takedown letters to YouTube for hosting the video, though others appear to have it (for the time being).
The ad itself is pretty straightforward. It’s a clip of Chris Wallace asking a question to Carnahan’s opponent in the race, Roy Blunt from a few years ago. It’s basically Wallace saying the following:
“You just said a moment ago that you have to show that you’re the party of reform but some question whether you are the man to do that. In 2002, you tried to insert language into the Homeland Security Act to help Phillip Morris tobacco [company] while you were dating that company’s lobbyist. And your campaign committee’s paid $485,000 to a firm linked to lobbyist Jack Abramoff. Are you the one to clean up the house?”
And then some tag line against Blunt. It never shows Blunt’s response. It’s difficult to see how anything about this lawsuit makes sense. First of all, the copyright claim is pretty weak. While most of the commercial is the clip, it seems like it’s quite likely this would still qualify for fair use. The idea that this implies Wallace endorsed Carnahan is a huge stretch. Nothing in the ad suggests he did at all. It’s a factual representation of what was said. Fox’s claim that this creates financial harm doesn’t make much sense. Even if (again, a huge stretch) people believe that Wallace was endorsing Carnahan, that’s got nothing to do with the financial loss from the clip itself. Case law is pretty clear that the financial loss needed in a fair use analysis involves the financial loss over what the clip itself could be licensed for — not any ancillary “costs.” And, in the very same complaint, Fox makes it clear that it wouldn’t license this clip even if the campaign had asked. Thus it seems to admit that the “financial loss” is nothing.
But, really, the bigger issue, is that in suing and sending takedowns over this video, all Fox has done is draw significantly more attention to the story itself and the negative impression of Blunt. If I had to guess, I’d say that Carnahan has never been so happy to be sued. It’s tons of free advertising on an attack ad on her opponent.
And, of course, if the video is found to be fair use — as I would bet it would be — we’ll have yet another example of how the DMCA’s takedown process is a clear violation of free speech. Even if the video is eventually allowed back online due to a counter-notice, copyright law was being used to silence political speech in the middle of a campaign.
Via Consumerist, we learn that the International House of Pancakes, better known as IHOP to many, is suing a megachurch that goes by the name International House of Prayer — and also known as IHOP. IHOP (the restaurant) does have a whole bunch of trademarks on the IHOP name, but those are supposed to be limited to restaurants and such. To deal with that, IHOP (food) is claiming that IHOP (church) is serving food at some of its locations — though it’s difficult to believe that anyone is confusing their Rooty Tooty Fresh ‘n’ Fruity breakfast meal with saying a prayer (even if some may claim an IHOP breakfast can be a form of religious experience). Of course, IHOP (food) is claiming “dilution,” which has become popular these days, despite the troubling implications of dilution as a trademark concept. It does seem likely that IHOP (church) did come up with its name based on IHOP (food), but is that really so bad? Or do we just assume that people are too clueless to recognize the difference?
Last month, we talked about how the new Freakonomics movie was going to flip the traditional windowing methodology, and get released online before it was in theaters. At the time, Stephen Dubner warned that there was also going to be another “wrinkle” in how they released the movie. I’m not sure if this is it, but it’s been announced that there is going to be a special “pay what you want” screening in select cities (Los Angeles, San Francisco, Washington D.C., Chicago, Boston, Dallas, Philadelphia, Denver, and Seattle). Free isn’t an option, however. The prices range from $0.01 to $100, and you also have to answer some survey questions. I’m always a little hesitant to buy into straight “pay what you want” deals, because I don’t think they represent much — and I worry that people read too much into the results of any particular experiment, especially when little is done to give people a real reason to buy on top of the content. So, to some extent, I worry how Levitt and Dubner might interpret any results from this experiment.
We were among the many folks who wrote about the supposed leak of the HDCP master key this week, leading to an interesting discussion in the comments — including a comment from a big time DRM supporter (he’s even written a book about DRM) who scolded us for getting the whole story wrong, insisting that there was no such thing as a master key and that Hollywood never would have agreed to HDCP if there were such a thing. This struck me and some others as odd, as many of us have followed the discussions on HDCP, and I tended to believe Ed Felten’s explanation of how HDCP works, which indicated that there was, in fact, a master key. That was from a few years ago, but Felten also just posted another explanation about how HDCP works, and it still seems to involve a master key.
And, now, Intel is apparently confirming that the leak is, in fact, the master key. So, at this point, I’m going to have to assume that the DRM expert and the scolding were wrong, and that there is, in fact, a master key… and it’s been leaked. Good thing the FCC gave the MPAA the okay to break your TV and DVR to release movies that would be “protected” by HDCP, huh? As Michael Weinberg points out, the FCC has now broken a bunch of TVs for nothing:
Today, it looks like HDCP — the DRM that the MPAA insisted was required to allow them to securely distribute movies prior to DVD release — has been broken. As a result, anyone who is motivated can make an exact digital copy of a “protected” high definition movie. Since all it takes is one motivated individual to make that first copy, this DRM (like every type of DRM before it) now serves absolutely no purpose but to inconvenience legitimate customers.
Lately, I’ve been playing around with various music locker services, just to get a better understanding of how they work and to be able to access my (legally purchased) music collection on various machines and devices. So far, they’re all a bit limited, but it shouldn’t be long until they get better. However, the industry has always hated music locker services, and insisted that they somehow violate their copyright, even when the lockers simply allow individuals to place shift their own legal music. There’s an ongoing lawsuit over Michael Robertson’s MP3Tunes for which a decision is expected shortly. At the same time, Apple has been trying to quietly enter the market without disturbing the record labels.
Why? Because the labels have this bizarre theory of copyright that says that even if you have a music locker with entirely legal and authorized music, you still need to pay license fees to stream the music from the locker. It’s difficult to understand how that makes any sense at all, either from a common sense or legal standpoint, and the labels may have a difficult time getting such a concept to stand up in court. But I’m reminded of the issue again as reports are leaking of Google’s proposed music service, which would include a music locker component. Apparently a big stumbling block, however, is that Google wants to charge $25/year for it, and do a 50/50 split with the labels.
The labels, of course, are quite upset at such a proposal, claiming it’s ridiculous, both in terms of the total amount and the revenue share. But I’m wondering what their complaint is here. If the music is legally purchased (or is given away in an authorized manner for free), then how can they possibly demand such exorbitant rates for streaming that very same music? This is going to backfire on the labels in a big way. Their constant refrain of “pay us every time you use,” is looking more and more desperate.
As you may recall, a few years back, UK authorities took down OiNK, a popular BitTorrent tracker site — and only after taking down the site did they realize that OiNK’s admin, Alan Ellis, didn’t appear to have done anything illegal. After testing out a few legal theories, prosecutors finally tried “conspiracy to defraud” the music industry — a crime that sounds suspiciously like felony interference of a business model. Of course, years later, Ellis was found not guilty, since he didn’t actually break any laws.
So how much did this entertainment-industry driven mess cost UK taxpayers? Well, police refused to release that information for a while, claiming that it “could undermine any ongoing and future investigations and cause potential damage to the criminal justice process.” Uh, right. About the only way it would do that is when people realized how much money was being wasted on bogus investigations. Eventually, however, it came out that the investigation itself cost about £29,000 — including £7,800 on overtime (OiNK after dark?) and £4,300 on “travel and subsistence.” Of course that doesn’t even get into what the actual trial cost taxpayers, which I’m sure is many times greater than that. And, as plenty of people predicted at the time of the raid, none of it mattered, because others stepped in to replace OiNK in no time flat. Perhaps, next time, the police can spend a little more money to realize that they had no case. Or, maybe, not spend the money at all, and let the entertainment industry focus its efforts on actually adapting to a changing market place.
