Over the past couple of years, we’ve discussed several battles in the war on the modding community Take-Two and Rockstar Games launched. I’ve never seen a coherent explanation for why this war was needed at all, from either the publishers or speculators. Almost without warning, Take-Two went on a DMCA blitz on sites hosting these mods, many of which had been around for years. And these aren’t merely mods that allow people to cheat in online games. Many of them are mods for the single-player game, allowing players to do new and interesting things. You know, making Take-Two’s product more valuable, in other words.
But the war continues anyway. Luke Ross made virtual reality mods for several Take-Two games and woke up recently to find that Take-Two had filed copyright claims on his Patreon page.
Earlier today, Ross shared on his Patreon page and Twitter that he had just received a notice from Patreon informing him that Take-Two had filed a copyright claim against his page and its content. Ross creates virtual reality conversion mods for popular games such as Grand Theft Auto V, Red Dead Redemption II, and Mafia II: Definitive Edition. All of these games are published by companies that Take-Two Interactive owns.
The notice reportedly orders Ross to remove all “copyrighted content” from his page or risk suspension by Patreon. And here’s where things get messy. For starters, the notice doesn’t identify which specific content needs to be removed. That’s kind of important, because Ross insists that his mods don’t actually use any of Take-Two’s code, assets, or intellectual property.
“I never misrepresent the games as my creations, don’t reuse any of the original software, assets, or IP in general, and my mods always need the original games to work,” Ross told Kotaku. “So it’s only additional sales for the developer/publisher, and the possibility for the gamers to enjoy a kind of experience they could not have otherwise on a flatscreen.”
And this is what makes this all so damned frustrating. Once again, Ross’ work results in no negative outcome for Take-Two. In fact, his work — done for free, by the way — actually only makes the company’s games more attractive and valuable to more potential buyers, namely those that want to play the game in VR.
And for being a hobbyist who manages to provide this benefit to Take-Two, Ross gets a vague threat letter and no help in figuring out what Take-Two is actually seeking to have removed. Way to shoot yourselves in the foot, folks.
The FBI has switched to a new crime reporting system to collect crime data from all over the nation. Despite being given a long runway (the 2021 switch was announced in 2015), the FBI is still seeing an incredible lack of contribution.
The new system is more granular, eliminating the past reduction of crime reporting to the most serious crime charged (for instance, an armed robbery involving a car theft would have been reported as only an armed robbery). To be sure, the changes to how crime is reported to the FBI (and collated by local agencies) present some clerical and technical difficulties, but the federal government has handed out hundreds of millions of dollars in funding to support the switch. And it gave local agencies a half-decade head start to get this sorted out.
The first year of reporting under the new system was a mess. Only a little more than half of the nation’s 18,000+ law enforcement agencies provided data via the new reporting system. That trend continues into 2022, as the Marshall Report points out in its dive into the data.
Last week, the FBI released crime statistics for the first quarter of 2022, compiled from 56% of law enforcement agencies across the country. Data from more than 8,000 agencies was missing, signaling that the national crime statistics may continue to miss a significant number of agencies in the near future.
While it may be understandable that smaller agencies with smaller budgets and fewer staff might have trouble collating the data in the detail the new crime reporting system requires, it’s completely inexplicable why some of the nation’s largest, most well-funded agencies failed to turn over any information at all.
Both the New York Police Department and the Los Angeles Police Department failed to turn over any data at all to the FBI. The Chicago Police Department did comparatively better, turning over a little more than a half-year’s worth of data.
Meanwhile, the steady flow of federal tax dollars to local agencies continues. The San Diego PD received $2.6 million in funds in 2016 to ease this transition. The San Francisco PD has demanded nearly $14 million in initial funding (and $4 million in annual funding) to perform this transition. Despite all the money, the SFPD claims it will not be able to start reporting data fully until 2025 — a full decade after the DOJ’s announcement of the new crime reporting program.
There’s another factor at play here that goes beyond the technical difficulties and adjustment to reporting changes. Controlling access to crime stats helps control the narrative. The less reporting an agency does, the better it can deploy crime stats to further its own ends. If it thinks it needs more funding, it can cherry pick crime rates that have increased to make the argument more money is needed to combat rising crime. If the agency is facing budget cuts because it hasn’t been effective in lowering crime rates, it can counter those arguments by selectively releasing data showing crime rate decreases.
The FBI’s program is supposed to paint a cohesive picture of crime rates across the US. But with barely more than 50% participation, what’s been handed to the public is a very limited view of the nation’s crime problem.
The largest city in Illinois that did not report any crime at all to the FBI in 2021 is the city of Aurora, which has a population of almost 200,000 residents, the second largest in the state.
This lack of data has come in handy for Aurora mayor Richard Irvin, who has been endorsed in his run for governor by several local law enforcement agencies. Without any way of verifying crime data, Irvin is free to make claims like this:
Irvin said during a recent GOP debate that Aurora is one of the safest cities in the nation.
“Look at the statistics, and I did not make this up, WalletHub has Aurora as the sixth safest large city in America and I stand by that,” Irvin said.
Look at what stats? The stats the Aurora PD has selectively released — ones that don’t go into the granular detail required by the FBI’s reporting system? The mayor presiding over a city whose police department has apparently opted out of uniform crime reporting has no business making unsupported claims about the safety of his city.
One assumes things will continue to improve. But how many years will it take before the FBI can safely draw inferences from the data it receives? And, for that matter, will participation increase to meaningful levels before someone — possibly a new administration — alters the contours of the reporting requirements? President Biden’s recent law enforcement-targeting Executive Order makes increased participation a requirement if local agencies expect to have access to federal funds. But that order may only last as long as Biden remains in office, which means it could be rolled back long before the FBI’s program collects enough data to be useful. For now, though, the FBI’s new system remains a failure.
As advocates of decentralization and a protocols-not-platforms approach to the web, there’s a lot about the concept of Web3 that sounds appealing to us at Techdirt — but the details usually leave a lot to be desired. A new project called TBD from Block aims to move beyond all that, and while its invocation of “Web5” understandably invites skepticism, it’s actually a lot more interesting. This week, we’re joined by project lead Mike Brock to discuss how TBD and the concept of Web5 aims to grapple with the true potential of decentralization.
No one is ever going to confuse Hollywood giant Universal Studios with, say, EFF’s view on more permissive copyright. However, Polygon recently had a really interesting article on how Universal’s comparatively minimal focus on cracking down on the incidental (and fun) uses of its Minions characters have made the characters well known, ubiquitous… and well loved. And, as the article notes, a hell of a lot more relevant today than Mickey Mouse, owned by Disney — which is famous for its unwillingness to allow anyone to make use of its characters.
And they’re almost certainly on the walls of a number of day care facilities. Universal Studios — parent company of Illumination, the animation studio that blessed us with Minions — did not put them there. The Minions aren’t public domain. But you wouldn’t know it by the many ways people have taken ownership of them. And Universal’s comparatively hands-off attitude toward Minion litigation has arguably paid off — by making them as recognizable and culturally front-and-center as Mickey, if not more so.
I take a little issue with the framing of the article, which calls them “practically public domain” because clearly they are not, and Universal certainly has its own long history of being copyright bullies.
But there is a big lesson to be learned here. By deciding not to enforce every use, by not freaking out that someone else out there is having a little fun with your characters (there’s no way I’m calling it “your IP” because fuck that), Universal has actually made its characters more relevant than perhaps the most well known cartoon character of the 20th century.
Disney, of course, has a long history of locking up culture rather than freeing it:
Disney’s playbook has always been to rewrite public domain fairy tales into copyrighted versions, then mold an ecosystem where any other adaptation of the original story comes off as the bootleg. When Disney was able to lobby Washington to extend its copyrights on its trademarked characters in 1998, it was after the studio returned to the zeitgeist with a new generation of uber-popular rewrites of other people’s stories: The Little Mermaid, Beauty and the Beast, and Aladdin.
And, as the article notes, Universal comes out of that same basic tradition of locking up culture:
And Universal has a similar history as a studio. It kicked off its success with a string of adaptations of classic horror stories through the 1930s and 1940s: Dracula, Frankenstein, The Wolf Man, The Invisible Man. Many of these stories are in the public domain, but Universal retains the rights to its own iterations, which have become the canonized versions in the public imagination.
And, yes, somehow, over the last few years, by taking many of the traditional copyright shackles off of the Minions, it’s actually helped Universal a lot more than it’s hurt the company:
And as this is all happening, the Minions continue to spread across murals, memes, and the internet at large, still smelling like the tube they were squeezed from. They’ll continue to belong to Universal Studios for many years. But in their case that seems functionally irrelevant. How would it look any different if the Minions were public domain? There is nowhere that the Minions are not.
Indeed, the article makes a point that we’ve been trying to make for decades: often times, when the so-called “infringement” is coming from your biggest fans, they’re actually providing you with free marketing for your underlying product.
Just as Frankenstein gives Universal Studios permanent real estate on a chunk of the public consciousness, the unchecked spread of the Minions has vastly increased awareness of Illumination’s work, paving the way for Despicable Me and its spinoffs to steadily continue their advance in a world where the entire internet seems willing to handle Universal’s marketing efforts for free. It suggests that the money, clout, and nostalgia forged from ubiquity can outweigh — or at least significantly amplify — the dollars reeled in from toy sales alone. Maybe Universal has created a monster it cannot control, or maybe it just doesn’t want to. Either way, it’s mastered the process of profiting from that monster’s ever-expanding adventures.
Unfortunately, the article doesn’t actually quote anyone at Universal to see if this is a conscious strategy, or just something that has happened by accident. Given the way Universal has acted for years, I’m not sure I’d trust the company to continue behaving in this mostly sensible manner.
That said, even if we ignore the fact that Universal might turn out to be just as bad as Disney in the long run on this, at the very least, hopefully others can take this as a lesson: rather than feeling the need to overly enforce your copyrights every chance you get, perhaps there’s even more benefit to letting people make use of the work and help you spread it and make it ubiquitous.
The government of India continues to hew closer to the ideals of nearby China, led by the Mohdi government, which has been pushing for greater control of the country’s population. Its favorite means and methods are surveillance and censorship — the tool set of authoritarians all over the world.
Indian citizens may have greater access to the internet and social media services, but the government wants to control how they’re used and the narratives citizens have access to. It has enacted a number of laws designed to give the government a say in what can be said. Many of these new rules target social media services operated by foreign companies, subjecting them to escalating content removal orders that must be complied with almost immediately.
Twitter has been targeted with several of these — some backed by implicit (and explicit!) threats to jail local Twitter employees who fail to comply. Twitter has pushed back, but the Indian government has refused to back down. The government’s pushback against Twitter’s pushback appeared to win out, with Twitter returning to capitulating to government demands for content and account removal. And, with Twitter still appearing to be at least a bit recalcitrant, the government made at least one threat a reality by raiding local Twitter offices after Twitter labeled a government tweet as “manipulated media.”
The pushback is back on again. Twitter has apparently decided it’s no longer going to let one branch of the government tell it what content it can or can’t make available to Indian users. Instead, it’s going to roll on the dice on having two government branches tell it what content must be removed.
Twitter has sued the Indian government to challenge some of the block orders on tweets and accounts, further escalating the tension in the key overseas market.
In its lawsuit, filed Tuesday in the Karnataka High Court in Bengaluru, Twitter alleges that New Delhi had abused its power by ordering it to arbitrarily and disproportionately remove several tweets from its platform.
Additionally, some block orders “pertain to political content that is posted by official handles of political parties,” Twitter said in the lawsuit.
“Blocking of such information is a violation of the freedom of speech guaranteed to citizen-users of the platform. Further, the content at issue does not have any apparent proximate relationship to the grounds under Section 69A,” it argued.
If nothing else, the lawsuit may slow down the criminal proceedings the Indian government has threatened to bring against Twitter’s chief compliance officer in India. The legality of the government’s demands are now up for debate, which means it would be unwise for the government to compound illegal acts by moving ahead with a prosecution when it’s still unclear whether or not the government had any legal right to make these removal demands.
The other thing propelling this legal action is the institution of new internet censorship rules by the Indian government, which give service providers and social media platforms few other options to challenge content removal orders that, in Twitter’s experience, have consistently targeted government critics.
Twitter has partially complied with the requests over the past year and a half, but sought to fight back many of the challenges. Under India’s new IT rules, which went into effect last year, Twitter has little to no room left to individually challenge the takedown orders and noncompliance may result in legal actions against its compliance officer in the country.
The Indian government has offered only one statement on the lawsuit so far. And it’s one that suggests it thinks it will prevail and that it doesn’t really care what negative effects its laws have on Indian citizens and the companies that provide them with internet access and services.
When asked about the lawsuit, India’s IT minister Ashwini Vaishnaw, said: “It is everyone’s responsibility to abide by the laws passed by the country’s Parliament.”
The law is the law. And that’s true as far as it goes. Twitter’s lawsuit asks how far the government can go, even under these expanded powers. Only the court can answer that question. Until then, the reverse — it’s no one’s responsibility to comply with illegal requests — is equally true.
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How many times can we write about bananas and copyright? Even assuming the monkey selfie case doesn’t count, it’s come up surprisingly often here on Techdirt. A few years ago, there was a high profile copyright case about whether or not a banana Halloween costume was covered by copyright (it was). But, this latest case is about whether or not there’s copyright in the, um, artistic display of taping a banana to a wall. Believe it or not, this is not the first case we’ve even written about regarding copyright questions around bananas taped to walls. Two years ago, we wrote about a different case, involving the copyright on photographs of bananas taped to walls, but that seemed like a pure trolling case.
As you may recall, back in late 2019, in those pre-pandemic blissful years, at Art Basel in Florida, there was a ridiculous amount of attention paid to a piece of art that was literally just a banana taped to the wall. It sold for $120,000. And there was some controversy when someone stepped in and ate the banana. The banana on the wall artwork was called “Comedian” and was created by artist Maurizio Cattelan.
But, this lawsuit was filed by Joe Morford in early 2021, claiming that “Comedian” infringed on his own work, “Banana & Orange.” The case has taken some twists and turns, including an initial default judgment against Cattelan, who did not respond to the case. Cattelan showed up in November to argue that the reason for this was that he was not properly served (the initial complaint was sent to his NYC apartment building, but Cattelan had left it and spent the first year and a half of the pandemic in Italy).
Morford, who is representing himself pro se, whined that this was all unfair and even sought to disqualify the judge for bias (generally, not a good idea) because the judge had once worked with the lawyer Cattelan had hired. None of that worked, and the default was set aside, moving the case forward.
So, this May, Cattelan filed a pretty compelling motion to dismiss noting (correctly), that copyright covers expression, not ideas, and you cannot copyright the “idea” of a banana taped to a wall.
This purports to be an action for copyright infringement. In previous filings with this
Court, Plaintiff asserted unequivocally that, “I do not assert a copyright claim to the idea of a
banana duct taped to a wall. People are free to duct-tape all the bananas they want to a wall.”
(Doc 37, at 21) (emphasis added). Yet, the Complaint tries to do exactly that: to stop Defendant
from duct-taping a real banana to a wall. In fact, Plaintiff’s only complaint is that Defendant’s art
piece, Comedian, which consists entirely of a real banana duct-taped to a wall, infringes Plaintiff’s
copyright in a diptych work of art comprised of a synthetic sculptural banana and orange fixed to
green painted paper and surrounded by masking tape.
But, Plaintiff cannot own the idea of a real
banana duct-taped to a wall. Based on well-settled principles of law, the Complaint must be
dismissed because: (1) the copyright laws do not permit “ownership” of a natural element that
exists in the world (a fruit) or a utilitarian, functional component (duct tape), neither of which
contain any original expression; (2) there is no substantial similarity between the protectable
aspects of Plaintiff’s work and Defendant’s work; and (3) Plaintiff has not – and cannot –
adequately allege Defendant’s access to Plaintiff’s work
All of this strikes me as broadly correct as copyright goes. You can’t copyright the idea of a banana taped to a wall. In theory, the only copyright protectable elements of a banana taped to the wall are the specific expressive choices that were made — perhaps the angle of the banana (weakly) and maybe some elements about how the duct tape was torn or something like that. Even then, it would seem to be a very thin layer of copyright protection.
And, again, Morton’s artwork appeared to be quite different. It did include a (not real) banana duct taped to a wall, but almost all of the actual expressive choices were different, as you can see:
Morton’s response repeats over and over again that he’s not seeking to copyright the idea, but rather is focused on the “substantial similarity” doctrine using the “extrinsic test” and the “intrinsic test.”
Now, in the past, we’ve discussed the substantial similarity doctrine, and what an absolute clusterfuck it is. Copyright infringement is only supposed to apply to actual copying. If two people come up with the same thing entirely independently, it is not supposed to be infringement at all. But, perhaps because some judges were worried that those who copied would just plead ignorance, some courts embraced these tests around substantial similarity, and an argument about whether or not the accused had access to the original work to effectively say they must have copied it. It’s a problematic doctrine, but one still used by many courts.
And yet, unfortunately, last week, the judge rejected the motion to dismiss and allowed the case to move forward. That doesn’t mean that Morford will win in the long run, but it’s not great for Cattelan. I’ve seen some copyright lawyers suggesting they were convinced by the judge’s reasoning, but I think it’s very, very mistaken. It also includes some factual errors.
Can a banana taped to a wall be art? Must art be beautiful? Creative?
Emotive? A banana taped to a wall may not embody human creativity, but it
may evoke some feelings, good or bad. In any event, a banana taped to a wall
recalls Marshall McLuhan’s definition of art—“anything you can get away with.”
To that end, bananas have come to represent a type of irreverence in pop
culture—from vaudeville to Andy Warhol, artists have wielded bananas to
expand the boundaries of art.
Add to that list Joe Morford, an artist from Glendale, California. In 2000,
Morford registered his work “Banana & Orange” with the Copyright Office. (ECF
No. 1 at 8.) While Morford does not allege how widely this work was
disseminated, it appears that Banana & Orange was accessible on Morford’s
website, as well as through the social media platforms Facebook and YouTube.
(ECF No. 50 at 26.)
So, first off, in what may feel inconsequential, the judge is wrong about the registration date of Morford’s work. While he claims it was created in 2000, the registration only happened in 2020 (after Cattelan’s artwork went viral):
The registration was included with the lawsuit, and it seems weird for the judge to miss that fact. Of course, it’s possible that doesn’t actually matter as much in this case. Normally, in many copyright cases arguing for statutory damages, it would matter, but Morford is explicit that he’s asking for actual damages (though how he defines them is weird), so in theory it doesn’t matter as much. Still a weird one for the judge to miss.
As for the actual analysis, the judge properly notes that Morford needs to show that Cattelan actually copied his work and that the parts that were copied were protectable under copyright. The judge then goes on a long discussion about the substantial similarity doctrine and both the extrinsic and intrinsic tests. However, the court does properly note that the court has to break down the work into its structural parts, and then determine which parts are protectable elements and which are not. This is correct… and it should have resulted in the judge noting that nothing protectable was copied here. There are bananas, but they are different. There is duct tape, but it is different. There is fruit taped to a wall, but that is an idea, and not protectable. There is the angle of the banana and the duct tape, but they are different. There are walls, but they are different.
I don’t see how any protectable elements are copied here. But… the court says otherwise, basically arguing that even if the idea of taping a banana to a wall is not protectable… the “absurd and farcical” nature of taping a banana to a wall is a form of creative expression. Really.
Copyright protection only extends to arrangements that are
unique and original. See Corwin, 475 F.3d at 1251 (“[A] work may be protected
by copyright law when its otherwise unprotectable elements are arranged in a
unique way.”). Heralded as the “sine qua non of copyright,” originality requires
consideration of the creativity involved in the arrangement of unprotectable
elements, as well as whether the arrangement is “firmly rooted in tradition” or
too “commonplace.” See BellSouth, 999 F.2d at 1440 (discussing Feist, 499
U.S. at 348, 363). But judges are not deputized art critics, and the originality
bar is appropriately low. See Bleistein v. Donaldson Lithographing Co., 188 U.S.
239, 251 (1903) (“It would be a dangerous undertaking for persons trained only
to the law to constitute themselves the final judges of the worth of pictorial
illustrations, outside of the narrowest and most obvious limits.”); see also
Original Appalachian, 684 F.2d at 824 (“No matter how poor artistically the
author’s addition, it is enough if it be his own.”) (quoting Alfred Bell & Co. v.
Catalda Fine Arts, Inc., 191 F.2d 99, 103 (2d Cir. 1951)). Therefore, the
“requisite level of creativity is extremely low; even a slight amount will suffice.”
See Feist, 499 U.S. at 345.
While using silver duct tape to affix a banana to a wall may not espouse
the highest degree of creativity, its absurd and farcical nature meets the
“minimal degree of creativity” needed to qualify as original. See Feist, 499 U.S.
at 345; see also Kevin Harrington Enters., Inc. v. Bear Wolf, Inc., No. 98-CV1039, 1998 WL 35154990, at *6 (S.D. Fla. Oct. 8, 1998) (Ungaro, J.) (noting
that originality involves “the author’s subjective judgment in giving visual form
to his own mental conception”) (citing Burrow-Giles Lithographic Co. v. Sarony,
111 U.S. 53, 60 (1884)). While the Court cannot—and need not—give meaning
to Banana & Orange, at this stage the Court holds that Morford’s choices in
giving form to Banana & Orange are sufficiently original.
This seems both wrong and potentially very problematic for copyright law. Basically, it’s creating an exception to the idea/expression dichotomy in copyright law, by saying that if the idea is particularly absurd, literally, then it gets copyright protection.
And that can’t be correct.
Later, in the substantial similarity analysis, there’s another chance for the court to note that there were no protectable elements copied, but again, the court chooses not to:
While Morford is afforded no protection for the idea of a duct-taped
banana or the individual components of his work, Morford may be able to claim
some degree of copyright protection in the “selection, coordination, [and]
arrangement” of these otherwise unprotectable elements. See Off Lease, 825 F.
App’x at 726 (discussing copyrighted works “formed by the collection and
assembling of preexisting materials . . . that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an
original work of authorship”) (quoting 17 U.S.C. § 101)). In particular, Morford
can claim some copyright protection in the combination of his choices in color,
positioning, and angling. See Off Lease, 825 F. App’x at 727 (holding that
copyright protection extended to “the outline, the [component’s] shape, and the
elaborate color scheme”); see also Corwin v. Walt Disney Co., No. 6:02-cv-1377,
2004 WL 5486639, at *16 (M.D. Fla. Nov. 12, 2004) (holding that an “artist’s
selection as to how the [model pieces] were arranged in the painting, the colors
associated with the elements, and the overall structure and arrangement of the
underlying ideas” are protectable) (citing Leigh, 212 F.3d at 1216).
But once we’ve hit that point, Cattelan has basically already lost. The court notes that from there, the substantial similarity test is generally an issue of fact, meaning that it should go to a jury. The court still does a quick analysis of the rest of the substantial similarity test, including whether or not Cattelan had “access” to Morford’s work, and again that’s problematic. Morford says his artwork has been online in various places, starting with YouTube in 2008, and then Facebook in 2015, and then his own website in 2016. Cattelan points out that just putting your work on the internet doesn’t mean that he had access to it. But the court basically says it’s too early to make that call.
Indeed, it seems like the court should have taken more notice of the fact that just putting things on the internet does not automatically mean everyone viewed it. Aaron Moss points out Morford’s claims regarding access are without much support, and Moss himself shows that while Morford’s work was online, it certainly does not appear that very many people ever viewed them:
In addition to the 2015 Facebook post that I showed above (which was “liked” by five people), I also found a 2008 YouTube video featuring Morford’s work on a YouTube channel page for an account called “lobsterparlorart.” The channel has all of 11 subscribers, and the video featuring Banana & Orange is one of dozens of artworks displayed on the nine minute video. You can check it out below at about one minute and eight seconds in, but the banana is displayed for less than a second, so don’t blink or you’ll miss it:
Below is a screenshot of Morford’s banana making its big reveal. At the time I watched, the video had received only 499 views in the past 14 years, three of which were from me as I was trying to find the banana:
While it’s possible that Cattelan was one of a vanishingly small number of people to see Morford’s work, it seems… unlikely at best. And, at the very least, the court should have required more than just “it was online” to hit the “access” part of the substantial similarity test.
The court also notes that Cattelan’s lawyers probably should have raised the merger doctrine, which basically says there are only a few ways in which this particular idea can be expressed — which would seem to apply here. But… Cattelan didn’t raise the issue and so the court refuses to consider it:
Of course, there are only so many choices an artist can make in colors,
positioning, and angling when expressing the idea of a banana taped to a wall.
In general, this is called the merger doctrine—where the idea and the
expression of that idea merge. See BUC Int’l, 489 F.3d at 1142 (holding that the
merger doctrine “provides that ‘expression is not protected . . . where there is
only one or so few ways of expressing an idea that protection of the expression
would effectively accord protection to the idea itself’”) (quoting BellSouth, 999
F.2d at 1442)). However, Cattelan did not argue that the merger doctrine
applies (ECF No. 53 at 14 n.8), so the Court will not consider whether the
merger doctrine precludes any finding of infringement here.
But that also seems wrong to me. The merger doctrine is considered part of the idea/expression dichotomy, which Cattelan did raise, so it seems that the court could have and should have looked at it. Though, yeah, it might have been better if Cattelan’s lawyers brought up that doctrine directly, it still seems that the court could have noted it as part of its idea/expression analysis.
Anyway, the court decides that there’s enough here for the case to move forward, and thus… it moves forward. It seems like a bad situation for the whole idea/expression dichotomy, so what happens next will be worth paying attention to. Of course, this is the stage where many similar cases settle, but it would be useful to get a court to really point out how bad this decision actually is.
For decades, entrenched U.S. regional monopolies have refused to deliver affordable, reliable, fast broadband in any sort of uniform way. That’s just kind of how monopolies work.
In response, roughly a thousand towns and cities have decided to build their own broadband networks instead, either themselves, via a local cooperative, through a city-owned utility, or in partnership with an outside private company. Instead of pre-empting such efforts by trying harder, regional monopolies have turned instead to lawsuits, dirty tricks, shitty ghost written legislation, and astroturf.
The arguments are the same the industry has used for years: that community broadband is an automatic taxpayer boondoggle (false), that the U.S. broadband industry is perfectly healthy so these kinds of efforts aren’t necessary (false), and that towns and cities will fall into economic ruin if they try to fix the problem (in fact there’s billions in new infrastructure grant money for towns and cities looking to shore up access).
Spectrum, of course, holds a monopoly in many of the Maine towns and cities that are considering building new networks. It can’t just make these arguments as itself because everybody hates their local cable and broadband monopoly and knows it’s full of shit. So Charter (like AT&T and Comcast) creates fake groups with a bunch of partners to give the impression that their argument has widespread support:
“I wasn’t aware of the flier, or the effort, or the content,” said Dana Connors, president of the Maine State Chamber of Commerce, which is part of the Alliance for Quality Broadband member coalition. “I haven’t even seen it.”
The majority of Maine towns don’t require campaign finance reports for influence efforts on local referendums. So a company like Charter can come to town, spend an unlimited amount of money confusing regional voters under any number of bogus names and organizations, and there’s no real transparency or accountability for any of it.
In this instance, the Charter astroturf campaign is being run by former to Democratic advisor BJ McCollister, according to Maine Public Radio. When pressed, like any good astroturfing foot soldier, McCollister tries to downplay Charter’s involvement and makes some fleeting, feel good references to his brave and noble dedication to bridging the “digital divide.”
While community broadband has broad, bipartisan support, many such propaganda projects play into fears that community broadband is “socialism run amok.” Many such towns are already running on limited budgets, so they can’t meet a monopoly’s lobbying team on equal footing and diffuse falsehoods spread by regional monopolies.
As such, it’s not that hard for a monopoly to spend a few hundred thousand to scuttle such a vote. That’s great for them, as it saves them millions in potential competitive headaches, but it can often wind up hurting the taxpayers these bogus groups pretend to be so breathlessly concerned about:
And last week, arguments to scuttle the project proved narrowly persuasive in a town vote. Now, Southport has to eat the roughly $600,000 it paid in upfront costs, while returning a $400,000 grant it received from the state’s broadband program.
There’s a lot of grant money coming into towns and cities courtesy of COVID relief and infrastructure bills, and U.S. regional monopolies like Charter, AT&T, Comcast, Verizon, and Frontier are very busy trying to ensure it all goes to them–and not any potential competitors, whatever form they take.