Copyright

by Mike Masnick


Filed Under:
censorship, contract, copyright, fair use

Companies:
sony, spotify, the verge, vox



Sony Uses Copyright To Force Verge To Takedown Its Copy Of Sony's Spotify Contract

from the censorship-through-copyright dept

Well, well. A few days ago, the Verge got a huge scoop in the form of Sony's original US contract with Spotify, leading to a ton of discussion (mostly focused around the huge "advances" that Spotify guaranteed Sony, and the related question of whether or not Sony actually passes those advances on to musicians). The debate raged on for a couple days, and late last night, Paul Resnikoff over at Digital Music News noticed something interesting: the original contract was now missing, and The Verge's own website claims it's due to a copyright threat from Sony:
On Twitter, the Verge's editor-in-chief Nilay Patel admits that a threat from Sony forced the site to take down the contract.
In fact, he claims that Sony actually sent four cease and desist letters claiming copyright infringement:
Earlier this week, Resnikoff reported that Spotify was apparently putting pressure on publications not to report on the contract, including "dangling threats" to scare them off. However, Spotify would have no copyright argument here. As the Verge report (still) notes, the contract was "written by Sony Music," meaning that if there's any copyright claim (we'll get to that shortly), it's held by Sony Music.

And we all know damn well that Sony loves to throw around bogus copyright threats. Even we have received one concerning reporting on Sony Pictures' leaked emails. Sony has threatened lots of other publications as well, and even Twitter over such leaks. And, Resnikoff notes that Sony Music threatened his site for an April Fool's joke, pretending to reveal internal emails concerning Sony's equity stake in Spotify.

So here's the question: why did Vox (the owner of the Verge) cave? For a modern media operation, it must have lawyers that know the threat is bullshit.

Yes, it is possible to get a copyright over the contract, but it's likely to be a pretty thin copyright, because the amount of "creative" work in the contract is minimal. Much of the contract is likely boilerplate. But, more importantly, the Verge has a slam dunk fair use case here. They're providing commentary on the contract. It's a matter of public interest. They're not "selling" the contract and they're certainly not harming the "market" for the contract itself, of which there is none.

We actually dealt with this issue once before -- two years ago when Apple pulled the same bullshit move to pull down a contract that Resnikoff himself had posted on Digital Music News. Somewhat ironically, the first party to report on that... was the Verge! And in their report, they quoted law professor Eric Goldman noting the ridiculousness of it:
"It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public."
Sounds about right when applied to Sony in this case. Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.

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  • icon
    Lord_Unseen (profile), 22 May 2015 @ 6:37am

    [Insert obligatory Streisand joke here]

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Howard (profile), 22 May 2015 @ 6:41am

    What a surprise

    Monopoly right used to supress freedom. Paint me surprised.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 May 2015 @ 6:56am

    What about Spotify's copyright in the same document?

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 22 May 2015 @ 7:15am

      Re:

      What about Spotify's copyright in the same document?


      As mentioned in the article, Sony claims to have written the document, so it would (sorta, kinda, loosely) hold any copyright. If there really is one.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 May 2015 @ 7:55am

        Re: Re:

        Please remind me why legal documents should be copyrightable again.

        Because this just smacks of Sony Music, yet again, doing fuckign stupid things that an errant two-year-old wouldn't get caught doing.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Anonymous Coward, 22 May 2015 @ 8:10am

          Re: Re: Re:

          Well, it might be innovative (contractually forcing something that has never been forced before), transformative (moves money from one pocket to another) and creative (creating streams of money that would not otherwise be wise).

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 May 2015 @ 8:18am

        Re: Re:

        "copyright. If there really is one."

        Courts have ruled that legal contracts are protected by copyright. [e.g., American Family Life Insurance Co. of Columbus (AFLAC) v. Assurant, Inc. (2006) No. 1:05-CV-1462-BBM]

        The only question is whether leaking a *copyrighted* legal contract in the publc interest would ever be considered "fair use"? Probably not.

        reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 22 May 2015 @ 8:52am

          Re: Re: Re:

          The only question is whether leaking a *copyrighted* legal contract in the publc interest would ever be considered "fair use"? Probably not.

          That's not even a valid question since the leaking itself wouldn't need to be considered at all to determine if The Verge's use is Fair Use. It's whether the *publishing* of a leaked document would be considered Fair Use and in this particular case the answer is pretty strong "yes".

          reply to this | link to this | view in chronology ]

        • icon
          Vidiot (profile), 22 May 2015 @ 9:59am

          Re: Re: Re:

          So... if it's possible to copyright a contract, it would be for the purpose of protecting its commercial value. For a book or a song, the purpose would be to sell the book or song for money, and publishing a copy (arguably) diminishes the article's commercial value.

          But if, as claimed, the commercial (read: copyrightable) value of a contract document lies in its novel language or methods, then it's the actual use of the contract in commerce that's being protected. So, publishing the language wouldn't infringe, since there's no inherent value in seeing/hearing it, as there is with a book or song; but copying the language and using it in a contract of your own would diminish the contract's value, failing to compensate its author.

          In other words, the only infringement would be ripping the language/ideas/methods, and using them in a new contract. No infringement for simply showing off the language. In my opinion.

          reply to this | link to this | view in chronology ]

        • icon
          Karl (profile), 22 May 2015 @ 3:31pm

          Re: Re: Re:

          American Family Life Insurance Co. of Columbus (AFLAC) v. Assurant, Inc. (2006)

          That's not entirely true. In that case, AFLAC was creating an insurance policy document in a "'narrative’ language style - as compared to the 'terse, nondescriptive' style employed by some of its competitors - [which] would be ‘readily understood by consumers.'" It was this "narrative" style that afforded it copyright protection.

          On the other hand, "what might be called a paraphrase and plagiarism in another work, is significantly different for the purposes of comparing two insurance policies" (Continental Casualty Co. v. Beardsley). As a general rule, "When the 'idea' and its 'expression' are thus inseparable, copying the 'expression' will not be barred, since protecting the 'expression' in such circumstances would confer a monopoly of the 'idea' upon the copyright owner free of the conditions and limitations imposed by the patent law" (Herbert Rosenthal Jewelry Corp. v. Kalpakian).

          So, unless the Sony contract was using some kind of "narrative language style" (which I doubt), its copyright claims are thin to nonexistent. If another company (say, Universal) came up with a contract that was almost completely identical to the Sony contract, I doubt that Sony would have a case to sue.

          In any case, it really doesn't matter. This is a slam-dunk case of fair use if there ever was one.

          reply to this | link to this | view in chronology ]

        • icon
          JMT (profile), 23 May 2015 @ 7:47am

          Re: Re: Re:

          "The only question is whether leaking a *copyrighted* legal contract in the publc interest would ever be considered "fair use"? Probably not."

          Why not? Mike explained pretty clearly why it absolutely is fair use: they're providing commentary, it's a matter of public interest, they're not selling the contract and there's no market to harm. Can you rebut any of these points?

          reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 22 May 2015 @ 8:24am

        Re: Re:

        This is a general legal question, not specifically about this contract: most of the contracts that I have entered into have been collaborative efforts where both myself and the party I'm entering into a contract with have contributed changes, additions, and deletions to the text of the contract. Who does the copyright to such contracts belong to?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 May 2015 @ 9:33am

        Re: Re:

        Sony claims to have written the document

        says something, if Spotify is given a contract of adhesion. But they'd be in the best position to dispute Sony's copyright claims, with claims of their own.

        reply to this | link to this | view in chronology ]

      • icon
        Derek Kerton (profile), 22 May 2015 @ 10:44am

        Re: Re:

        "Yeah, but I didn't read the article. I prefer the 'read title, engage author in q and a' method of gathering news."

        BTW, have you ever dealt with this issue before? Like with Apple or such? And have you ever got a C&D from Sony?

        reply to this | link to this | view in chronology ]

  • identicon
    pegr, 22 May 2015 @ 7:20am

    Universal truth

    Secrets imply deception.

    (Unrelated note to Mike: Gretchen rocks!)

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 22 May 2015 @ 7:33am

    While there are copyright threats, one wonders if they were offered some access to pull it. Everyone knows that the claims are bogus, but playing a bit of hardball to get something else in exchange is a time tested plan.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 22 May 2015 @ 7:35am

    Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.

    Which is good since we know these copyright holders love to bleed useful services to death. It would be even more interesting to dig and see how much it reached the musicians. From comments from some top artists it seems to be pennies. Now imagine for the less known musician...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 May 2015 @ 7:46am

    Has the internet routed around the censorship yet? Link?

    reply to this | link to this | view in chronology ]

  • identicon
    The Artist Formerly Known As Anonymous, 22 May 2015 @ 11:28am

    So Sue Me

    Sony: How do we get the contract taken down from this site?

    Sony’s Lawyer: If they won’t take it down, sue ’em for copyright infringement.

    Sony: Sounds great. What could go wrong?

    [Next Day]

    Sony: They refused.

    Sony’s Lawyer: (smirking) We will draft the complaint today.

    [Two Weeks Later]

    Sony: Where’s the complaint? What’s taking so long?

    Sony’s Lawyer: We ran into a small problem.

    Sony: Explain.

    Sony’s Lawyer: Well, um, my associate was researching the law on copyrights, and, uh (clears throat).

    Sony: Yes?

    Sony’s Lawyer: Well, it seems that Section 411(a) of the Copyright Act of 1976 (the "Copyright Act”) states, in part, the following: “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a).

    Sony: (beginning to get agitated) In plain English, please.

    Sony’s Lawyer: It means that we need a copyright registration to bring a lawsuit.

    Sony: Are you telling me that we have to file this publicly to keep it a secret?

    Sony’s Lawyer: (not so smirking)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 May 2015 @ 1:28pm

    Don't buy their shit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 May 2015 @ 2:50pm

    Sigh

    Copyright law has come that far that even the thread of a lawsuit is enough to make people taking down a piece of information. Well.. it might not be the thread of a lawsuit but the costs that such an event brings with it. Isn't it time that we have to ask ourselves if the rights you have should be equal to your bank account?

    reply to this | link to this | view in chronology ]

  • icon
    Pronounce (profile), 22 May 2015 @ 3:40pm

    Power Breeds Fear

    As those who acquire power fear the loss of it. (Officials at Sony, the FBI, and NSA all come to mind.) Their actions become more erratic as they seek to hold onto their power. Either they resort to desperate measures, or they capitulate to the zeitgeist.

    Time will tell.

    reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 22 May 2015 @ 6:05pm

      Re: Power Breeds Fear

      generally those types of people commit massive amounts of crimes to gain the power they have so they are justifibly afraid losing their ill gotten gains

      reply to this | link to this | view in chronology ]

  • icon
    G Thompson (profile), 23 May 2015 @ 1:50am

    After a quick reading of the document in question (come at me Sony!!) it is very much a boilerplate contract and the possibility of any copyright in such a document is de minimus at best.

    Interestingly though according to the actual terms of the contract itself (The confidentiality clause) Spotify could hold Sony in breach due to the release of it. That's probably more a worry to Sony than anything else at moment especially since Spotify is now the major music structure on PS4's

    reply to this | link to this | view in chronology ]


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