What What (In The Butt)? What What (Fair Use Doesn't Need A Trial)?

from the well-that's-nice dept

Last year, we reported on the really bizarre lawsuit of video producers Brownmark Films suing South Park, Viacom and Paramount for parodying the bizarre hit viral video What What (In The Butt). You can see the original video below, followed by the South Park parody:


It's worth noting that the actual song had been licensed, and the "singer" Samwell was apparently paid. The lawsuit was over the copyright on the video itself. Back in July a court ruled for summary judgment against Brownmark, noting it was a pretty easy case based on parody grounds. We had meant to cover it at the time, and the ruling is somewhat amusing, as the judge can hardly resist noting the general oddity of the video and the case -- but things got busy and it slipped away.

So, thanks to Nate Anderson for pointing our attention to Duke University's Scholarly Communications Officer, Kevin Smith's post discussing an important point that many overlooked in covering the case: that "fair use" was determined without a trial. One of the many problems with a fair use "defense" is that it's still considered a "defense" to a claim of copyright infringement, rather than a right on its own. That means, most courts have felt that in order to determine fair use, you first have to go through a full trial, in which infringement is proven, and then fair use is brought forth as a defense.

But, in this case, the court skipped all that and said you can determine fair use at the summary judgment stage. That's important. As we've seen, even those who believe they have a strong fair use claim will often settle rather than fight, knowing that the cost of a trial is prohibitive.
What is significant here is that the judge made the fair use decision before there had been a trial. He examined the pleadings and found that everything he needed to make this easy call was already before him. Then he ruled favorably on a motion to dismiss the case on the basis of those pleadings (technically a “motion to dismiss for failure to state a claim”) and dismissed the case with prejudice (which means plaintiff cannot re-file it).

Librarians and other academics are often afraid to rely on fair use, even when there arguments would be strong, because of the expense of defending a lawsuit even when you win. Content companies often encourage that fear, reminding academics that fair use is a defense that can only be decided with certainty at a trial. While this case is a little bit unusual, it invites us, I think, to look at this “chilling effect” and perhaps lend it less credence.

In his ruling to dismiss, Judge Stadtmueller explicitly notes that “evaluating an affirmative defense, and indeed the ‘fair use’ defense, at the pleadings stage is ‘irregular’.” But he thinks it is justified precisely because when the case for fair use is “obvious,” “the court can conclude that this dispute does not warrant ‘putting the defendant[s] through the expense of discovery’.” In other words, in straightforward cases, a fair use claim can be evaluated before there is a trial, explicitly to prevent the cost of litigation from itself becoming an obstacle to proper exercise of fair use.
Who knows if other judges will follow this lead -- and, again, this case may be seen as extreme because it's so obviously fair use. But it would be nice if judges were willing to rule on fair use upfront, rather than go through a protracted and expensive trial.


Reader Comments (rss)

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    The eejit (profile), Aug 25th, 2011 @ 1:44pm

    Did Brownmark get a stain in their pants? I think they did.

     

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    Ima Fish (profile), Aug 25th, 2011 @ 1:44pm

    "It's worth noting that the actual song had been licensed, and the "singer" Samwell was apparently paid. The lawsuit was over the copyright on the video itself."

    Thanks a lot Mike for making me repeatedly slam my head on my desk!

     

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    GeneralEmergency (profile), Aug 25th, 2011 @ 2:42pm

    Thanks Mike....

    Thanks Mike....

    At my age, I often feel I have seen it all and nothing much shocks me any more, with the possible, almost routine, exception of South Park.

    While I had seen that episode with Butters doing his little YooToobe video, I had no idea -that part- was actually a parody.

    Today, I spent three minutes and forty-seven seconds with my mouth agape, a stunned look on my face and a five word summary revolving in my mind.

    "This is baldfaced, unfettered faggotry."

    .

     

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    Richard (profile), Aug 25th, 2011 @ 3:13pm

    Fair use as a defence

    Oh the illogicality of it all.

    Everything is either legal or illegal. When a case is tried the defence team will try to find reasons why their clients behaviour is legal.

    These are defences - and anything can be a defence. The fact that a particular "reason for legality" is used as a defence does not make it merely a defence - there is no such thing as "only a defence" if some aspect of the facts makes a defendant's behaviour legal then it is legal and not somehow "illegal but he has a defence". A defence is not to be confused with a mitigating circumstance.

    Fair use is commonly the issue that is fought over in court - but that is because it is more difficult to prove or disprove than other potential defences - not because it somehow has a lesser status.

     

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      Richard (profile), Aug 25th, 2011 @ 3:16pm

      Re: Fair use as a defence

      btw IANAL but I often see lawyers making obviously stupid and ignorant comments about the law.

      Just because you have a piece of paper doesn't mean you know what you're talking about...

       

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        Daniel, Aug 25th, 2011 @ 3:27pm

        Re: Re: Fair use as a defence

        "Just because you have a piece of paper doesn't mean you know what you're talking about..."

        Yup, this is also demonstrated by the numerous teachers making it through college. Some of them are so dumb it just blows my mind.

         

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          Richard (profile), Aug 25th, 2011 @ 4:09pm

          Re: Re: Re: Fair use as a defence

          this is also demonstrated by the numerous teachers making it through college

          Yup - but those who assess the teachers have an excuse - at the rate they're paid you wouldn't get enough candidates if you were stricter.

          Lawyers on the other hand....

           

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    DogBreath, Aug 25th, 2011 @ 3:30pm

    This is great

    Who knows if other judges will follow this lead -- and, again, this case may be seen as extreme because it's so obviously fair use. But it would be nice if judges were willing to rule on fair use upfront, rather than go through a protracted and expensive trial.

    In a topsy-turvy land where cops can detain you and decide whether or not any photos you are taking have any esthetic value, It only seems logical that judges should be throwing out copyright cases based on obvious "fair use" grounds. Preferably before a trial, and to prevent any lost valuable court time and more of the defendants money from being wasted.

    In the CopyrightLand game (not to be confused with CandyLand, different game altogether), everyone is guilty until proven innocent (or not guilty), but only if you have the money to defend yourself at trial. With this kind of ruling, it will put those looking for easy money (out of court settlements) on notice that the next infringement lawsuit they file might be throwing money down the toilet, and they may actually think first before deciding to sue.

    It's about time the pendulum to swings the other way, back toward legal fairness rather than copyright maximalism.

     

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      Anonymous Coward, Aug 26th, 2011 @ 6:29am

      Re: This is great

      Actually, it isn't logical to throw cases out of the basis of fair use, because fair use doesn't exist until "use" has been determined.

      The only way this should happen is if the defendants admit, pre-trial, that yes, they infringed copyright, "but it is fair use". They would have to stipulate that they broke the law, and then plead for the courts to grant fair use. It would be a risky way to do things, however, because they would first have to admit to the violation in question.

      Fair use is a defence, not a right. It is a construct of the courts and court judgements, and comes at the end of a direct line of legal action. The judge that short circuits that pretty much invites an appeal.

       

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        Anonymous Coward, Aug 26th, 2011 @ 8:48am

        Re: Re: This is great

        To add to your comment, the fact this case happens to be about copyright law is of no moment to me given that this is Motion to Dismiss (i.e., the defendant has not even filed an answer to the complaint). If the complaint is well pleaded and a cause of action appropriately stated, the complaint should be sufficient to overcome the motion and allow the case to proceed.

        It seems to me that the judge is treading on very shaky ground, particularly since it appears that he has made for all intents and purposes findings of fact associated with an affirmative defense, which findings are usually the province of a jury.

         

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        DogBreath, Aug 26th, 2011 @ 1:33pm

        Re: Re: This is great

        Old news but "Fair use is a defence, not a right" argument dug its own grave a long time ago, right here on TechDirt!

        Copyright Lobby Continues To Pretend Fair Use Is Not A Right - Fri, Sep 7th 2007

         

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          Anonymous Coward, Aug 26th, 2011 @ 8:34pm

          Re: Re: Re: This is great

          Oh god, that article is horrible. It's a right because, well, it's a right.

          Fair use isn't a right, it's part of copyright law. But it is an affirmative defence, in that you have to first admit to violating copyright before you can claim "but it's fair use". If you didn't violate copyright to start with, there is no fair use to invoke. Thus, you cannot move pre-trial for dismissal on fair use generally, because you would first have to admit for the record that you in fact used the copyright material. Even then, the judge would likely still allow the trial to determine if the case falls inside fair use.

          The current boundries of fair use are not set in the constituion, they are an evolving set of judgements and rulings that, put together, define the (sometimes grey) boundries of fair use.

          You can run it in circles all you like, but without first violation, there is no fair use exceptions.

           

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            DogBreath, Aug 27th, 2011 @ 7:25am

            Re: Re: Re: Re: This is great

            You can run it in circles all you like, but without first violation, there is no fair use exceptions.

            With Fair Use, there is no violation at all.

            An easy fair use ruling, but with a message
            Fair use is slightly different than the typical affirmative defense. It has to be raised after a claim has been made, of course, but it does not actually involve admitting the truth of the allegation. Fair use is not a justification for an infringement; by the language of section 107 fair use is “not an infringement of copyright.” So rather than showing a reason for infringing on someone else’s right, the fair use defendant is proving a limitation of the plaintiff’s right that means that no infringement took place.



            But in your words, you would have to admit you made an infringement that you didn't commit in the first place in order to defend yourself from it? Next you'll be telling me cops have to admit to Murder or Manslaughter (unlawful forms of homicide, actual crimes and violations of law) before they can raise their defense and get their lawyer to show the DA and/or Judge and Jury the dash cam footage that clearly shows they were justifiable in defending themselves with deadly force (justifiable homicide, therefore Not a crime and Not a violation of law) against an armed man who was attempting to kill them?

            Just because you can be charged with something or sued for something does not mean you have to admit to it to defend yourself from it, and this is one of those times. Some things clearly don't ever need to go to trial, and judges can and have make findings of fact without a jury. In this case, there could have been a whole trial with a jury and judgment found in favor of the defendant, and still it could be appealed. It doesn't make much difference in long term, people thinking that their copyrights have been infringed upon will sue and appeal lost cases until the sun doesn't shine anymore. If anything, Righthaven has taught us all that lesson very well (if the sun is shining, Righthaven is suing, someone, somewhere).

            In both civil and criminal proceedings, many cases have been found to not hold water before trial and been thrown back in the faces of those who brought them in the first place, based on the facts presented alone. This "alleged" infringement case is just more of the same.

             

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    Anonymous Coward, Aug 25th, 2011 @ 3:48pm

    There is at least one old musician that might be rolling over his eyes to the back of his skull because he said there was no right to infringe and he apparently that right to infringe is strong and well LoL

     

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    cc (profile), Aug 25th, 2011 @ 8:25pm

    Nip Nip (In The Bud)

     

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    G Thompson (profile), Aug 25th, 2011 @ 8:50pm

    Douglas Adams vs. Monty Python

    The court in this case used the legal maxim of Quod constat clare non debet verificari, which basically means that What is clearly apparent need not be proved.

    A lot of people call it the Duck test after Douglas Adam's famous quote of
    “If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family Anatidae on our hands.”
    Sadly a lot of courts forget this and go the way of failed logic as shown in that famous sketch by Monty Python in "The Holy Grail":

    BEDEMIR: What also floats in water?
    ARTHUR: A duck.
    CROWD: Oooh.
    BEDEMIR: Exactly! So, logically...,
    VILLAGER #1: If... she.. weighs the same as a duck, she's made of wood.
    BEDEMIR: And therefore--?
    VILLAGER #1: A witch!
    Logic sometimes is not the courts forte, thankfully in this one the witch was saved...

    In the butt!

     

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    Anonymous Coward, Aug 26th, 2011 @ 3:36am

    IANAL ...

    ... on second thought, I don’t think I want to be.

     

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    Nina Paley (profile), Aug 26th, 2011 @ 5:56am

    better music

    It's true that once you see the Samwell video, you can never un-see it.

    But you could overwrite it with this, which at least has better music.

     

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    Paul Alan Levy (profile), Aug 27th, 2011 @ 4:09pm

    Before discovery, not just before trial -- and not so unusual

    Although Kevin Smith does use the phrase "without a trial", it is not at all unusual to decide fair use at the summary judgment stage. The gist of his post is not to praise the avoidance of a trial, but rather the avoidance of the discovery phase of the case, in that the judge ruled that the fair use defense was decisive on a motion to dismiss.

    To do that, the judge took advantage of the standard rules that (1) an affirmative defense can be addressed on a motion to dismiss if the existence of the defense is disclosed by the materials that are properly considered on a motion to dismiss, and (2) that even if a document is not attached to the complaint, it can be considered on a motion to dismiss if it is referenced in the complaint and the defendant supplies it to the court, and so long as there is no dispute about the authenticity of the copy that is supplied to the court.

    The judge referred in passing to the consideration of an affirmative defense on a motion to dismiss as "irregular," but in fact it is not at all unusual. We commonly invoke these principles in the course of defending the online free speech of our clients, moving to dismiss at the outset of the case when we consider such a motion warranted.

    Thanks for featuring this case on Techdirt.

     

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