The Wonky Donkey: How Infringement Helped Create A Best Seller... Which Would Be Impossible Under Article 13

from the wonky-infringing-donkey dept

I had missed this story from a couple months back, but reader Kris kindly alerted me to it. It's the story of how a video of a grandmother in Scotland reading a mostly out-of-print children's book to her grandson, and laughing uncontrollably about the book, went viral and turned the book into a total best seller around the world. First, you need to watch the video:

It has over a million and a half views on YouTube, and apparently a huge number on Facebook as well. The book's author, Craig Smith from New Zealand appears to be ecstatic about all of this (as he should be!):

Smith told the Guardian that demand had “gone through the roof” for the picture book since the video of Clark took off: in New Zealand, his publisher is “rushing to print another 50,000 copies, with a view for more”, while The Wonky Donkey is now also being reprinted in the UK. Amazon in the US and the UK has sold out, while used bookseller AbeBooks said that it has sold “hundreds of copies” of The Wonky Donkey in the last week, amid “massive demand” around the world.

[....]

“The video is gold. Watching Janice read and laugh was just delightful, and like many, her infectious laugh had me laughing too,” said Smith. “I’ve always wondered why sales had not taken off so much in the UK and US, but that looks like that’s about to change.”

According to the Associated Press, the book had sold about 75,000 copies prior to all of this (which isn't bad), though it was mostly in New Zealand and Australia, but had since gone out of print. But now, the publisher, Scholastic, was rushing to print another 600,000 copies.

According to Scholastic, the book had sold about 75,000 copies and was out of print before the video caught on last month.

"Before this fall, if you had said 'Wonky Donkey' in my store, no one would have known what you were talking about," said Linda Devlin, owner of Linda's Story Time in Monroe, Connecticut. "Now, it just sells and sells. People see it and say, 'Oh, I have to get that for my grandchildren.'"

Scholastic announced Friday that it had ordered another 600,000 copies. Meanwhile, Clark is coming to New York in November for an event at Barnes & Noble.

And, last month the book went to the top of the charts. From out of print to topping the book sale charts in just a couple of weeks is pretty incredible:

The 2009 picture book about a three-legged, one-eyed donkey has sold more than 100,000 copies in the United States this fall, much of that in the past week. According to NPD BookScan, which tracks around 85 percent of the print market, "Wonky Donkey" topped all releases with more than 90,000 copies sold last week, beating out Bob Woodward's "Fear" and Rachel Hollis' "Girl, Wash Your Face," among others.

But... here's the thing. That video is almost certainly copyright infringement. It's a derivative work with the grandmother reading the entire book out loud. Obviously, neither the author nor the publisher mind that this happened. Indeed, they're pretty happy about it. And so this could just be yet another example of where copyright infringement actually ends up helping the copyright holder significantly.

But this is also an excellent example of the massive harm that the EU is about to do with Article 13 and the EU Copyright Directive. Under Article 13, platforms like YouTube and Facebook would be required to block this kind of video or face massive liability. Of course, how these platforms might detect such a video is unclear. There is no form of ContentID that would see that video and know that it was infringing, but it pretty clearly is. But, once the video got so popular, with over a million views and news stories about it, sooner or later the companies would recognize that it was infringing and would be forced to take it down or face crippling liability.

All weekend long, various supporters of Article 13 have been screaming at me on Twitter about how Article 13 won't harm the internet or creators at all, and that's it's really just about "making YouTube pay its fair share." I'm curious how they could possibly explain what to do in this particular case. Under the law they want, a content creator (and tons of happy parents) would be at a loss. This book likely wouldn't be such a massive success. The companies would be forced to take that content down and to block anyone else from ever uploading it.

And what do you do if you're a smaller platform? The risk of letting just one such video through would almost certainly bankrupt you. But how is a smaller platform going to police for this kind of video that none of the copyright holders want policed? But, as a platform, Article 13 leaves them no choice.

This is one of the many problems with the approach of Article 13. It assumes, incorrectly, that all infringement is black and white obvious, and that all infringement is necessarily bad and must be stopped. It cannot take into account that those assumptions are frequently not at all accurate. It cannot take into account that this will not only cut off much of what makes the internet wonderful, but will also completely keep new entrants at bay. Google and Facebook can afford to deal with this. The next Google and Facebook won't even bother. And that would make for a pretty sad, spunky, hanky-panky, cranky, stinky, dinky, lanky, honky-tonky, winky, wonky donkey.


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  1. This comment has been flagged by the community. Click here to show it
    identicon
    Noah Isnot, 15 Nov 2018 @ 9:52am

    "That video is almost certainly copyright infringement."

    Not unless the publisher regards it as such. No one is required to enforce copyright. Your premise is crap.

    Besides that, PROMOTION IS THE KEY TO SUCCESS. There's nothing here to suggest that the author cooked up a stunt, but coming to notice is always the difficult part, so yet again, you're just arguing that publicity is the CRUCIAL step -- INDEED, you made a web-site that LITERALLY has this:

    Step 1: Create!

    Step 2: ??????

    Step 3: Profit!

    You have no clue about Step 2. This is just chance, a fluke, and has NO bearing on Article 13 except for your predictive FUD that this couldn't happen with the perfect in-advance content filtering that you wrongly foresee.

    But as for your attempt at connecting those assertions to Article 13: Again, WHO CARES if the EU harm themselves? Americans should just LAUGH and urge them on!

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

  2. identicon
    Anonymous Coward, 15 Nov 2018 @ 9:53am

    Disney and others could learn from this. In this case the financial windfall is obvious and easily measured. While it may be far more difficult to quantify the benefit gained through various forms of infringement (fan sites, etc) of Disney and others' IP that benefit is still very real. Rather than trying to take down even the slightest infringement copyright holders should be more selective and allow those things that actually benefit them. Sure, take down people selling knock-off Star Wars merch but fan sites and youtube videos about cosplay are hardly damaging.

    I hope I live to see copyright significantly curtailed.

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

  3. identicon
    Anonymous Coward, 15 Nov 2018 @ 9:54am

    Re: "That video is almost certainly copyright infringement."

    How can you be both anti-corporation and pro-copyright in its current form? The cognitive dissonance in your head must be audible for miles.

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

  4. identicon
    Anonymous Coward, 15 Nov 2018 @ 10:07am

    Re: "That video is almost certainly copyright infringement."

    The publisher's opinion about whether something is infringement doesn't generally affect whether it is infringement (excepting estoppel, laches, explicit licenses). Courts simply have no reason to make a decision about whether it's infringing until someone complains.

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

  5. icon
    James Burkhardt (profile), 15 Nov 2018 @ 10:13am

    Re: "That video is almost certainly copyright infringement."

    >No one is required to enforce copyright.

    Article 13 requires proactive efforts to ensure copyright is not infringed. Article 13 requires Websites to enforce copyright, despite not knowing if content is infringing.

    You lie.

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

  6. identicon
    David, 15 Nov 2018 @ 10:23am

    Who laughs last...

    But... here's the thing. That video is almost certainly copyright infringement. It's a derivative work with the grandmother reading the entire book out loud. Obviously, neither the author nor the publisher mind that this happened.

    That doesn't mean that they are not going to make a copyright claim on the video and get its ad dollars once the first rush is over.

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

  7. identicon
    Anonymous Coward, 15 Nov 2018 @ 10:55am

    Re: "That video is almost certainly copyright infringement."

    You're incapable of understanding words.

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

  8. identicon
    Anonymous Coward, 15 Nov 2018 @ 12:57pm

    Many record companys give free cds to dj,s ,
    game companys give free games to people on twitch and youtube.
    many authors give the first chapters of a book away free to anyone ,
    Many people buy games after see,ing them played
    on twitch.
    Most of the youtubers i follow would not be in business if they followed strict rules re infringement .
    As they post video clips from games and films
    ,without getting permission from the publishers .
    The eu rules will break the web in europe ,
    and are a direct attack on free speech.
    They take no account of parody or fair use .
    they don,t help small creators ,they
    are simply designed to give more money to
    german newspapers who have lobbied for
    Article 13 .
    Maybe people will just use american websites ,
    and facebook, youtube,
    it won,t be viable to run a small website that
    features content uploaded by users .

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

  9. icon
    Madd the Sane (profile), 15 Nov 2018 @ 12:59pm

    Re: Who laughs last...

    Fair enough. But I somehow doubt that the person who uploaded this video is especially interested in the ad revenue. It would be annoying to see ads on a family video, but it's not the end of the word. Worst case: just download it.

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

  10. identicon
    Lawrence D’Oliveiro, 15 Nov 2018 @ 1:18pm

    Re: In this case the financial windfall is obvious and easily me

    And I suspect in most of these cases the creator benefiting is one operating on a small scale, rather than a large corporation.

    In short, the Disneys of the world have no incentive to allow them to happen.

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

  11. icon
    ShadowNinja (profile), 15 Nov 2018 @ 1:20pm

    Re: "That video is almost certainly copyright infringement."

    Hey look everyone, it's another critic of Techdirt who clearly didn't read the article!

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

  12. icon
    ShadowNinja (profile), 15 Nov 2018 @ 1:24pm

    Re:

    Disney and other IP holders should learn the value of free advertising is what it comes down to.

    If I see ads Disney paid for I look away or turn my TV off. If I see an organic ad like this from a happy customer I'm more likely to listen and buy the product.

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

  13. identicon
    Anonymous Coward, 15 Nov 2018 @ 3:25pm

    Re: "That video is almost certainly copyright infringement."

    No one is required to enforce copyright?

    You idiots have a temper tantrum every time you think it isn't.

    Every single fucking time.

    You can't even stay consistent with your own narrative. For fuck's sake...

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

  14. identicon
    Anonymous Coward, 15 Nov 2018 @ 5:18pm

    Re: Re: "That video is almost certainly copyright infringement."

    Did you expect anything less?

    out_of_the_blue just hates it when due process is enforced.

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

  15. identicon
    Anonymous Coward, 15 Nov 2018 @ 11:43pm

    The eu rules will break the web in europe , and are a direct attack on free speech.

    Can we please get this right on Techdirt? Facebook, Instagram, Youtube etc. (also known as Social Media) is not - I repeat: is not - "the web". The web is made out of myriads of (to simplify) HTTP servers. So here I have a question for you.

    As fas as I know, only the major platforms need to (for the sake of the discussion) censor uploaded material. So why is Grandma using a major platform to publish her video? Sounds stupid, right? But she could do it on her (or her family's) Internet attached storage device. Her content, her responsibility, no censorship involved.

    I agree that in today's web this video would be hard to find but I also remember (I'm not sure on this, so sorry, if I'm wrong here) that in other posts Mike names the major platforms "gatekeepers" because they have to much control and censor on their own preferences (e.g. "no tits" policy). So perhaps what we really need is that we take our web back from the major platforms.

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

  16. icon
    PaulT (profile), 16 Nov 2018 @ 12:44am

    Re: Re: Re:

    "Not unless the publisher regards it as such."

    Well, that explains your moronic statements surrounding things that clearly aren't infringing but the corporations demand are infringing. You still don't know what the laws you demand are followed actually say.

    "Besides that, PROMOTION IS THE KEY TO SUCCESS"

    Yep, and sometimes promotion includes people sharing the product without express permission from or payment to the original author, as they always have done.

    "This is just chance, a fluke"

    As are many major success stories, some of them the greatest works in history. Which is why the unforeseeable flukes should not be prevented in order to protect the soulless predictable production line you love.

    "Again, WHO CARES if the EU harm themselves? Americans should just LAUGH and urge them on!"

    ...and then act shocked when the US-based corporations behind half of that crap get it passed there too, using the EU laws as precedent to get them in.

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

  17. icon
    PaulT (profile), 16 Nov 2018 @ 12:53am

    Re: Re: Re:

    "The web is made out of myriads of (to simplify) HTTP servers"

    ....which include among their number the sites you mentioned.

    "As fas as I know, only the major platforms need to (for the sake of the discussion) censor uploaded material"

    You understand wrong. The same rules apply to everybody, it's just the major platforms who are constantly under attack. The same takedown notices, etc. would apply to a self-hosted site if they were issued.

    If you're operating under the delusion that these rules will only affect a handful of household names, please read up on the subject.

    "So why is Grandma using a major platform to publish her video?:"

    Because it's a hell of a lot easier for a grandma to use an existing website that's set up specifically to share videos than it is for her to work out how to buy a domain name, hosting, set up a site, etc.?

    This is why social media is so successful, for good or ill - it's very easy to use. Most people simply wouldn't bother if they had to self host everything, same as it ever was.

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

  18. icon
    jameshogg (profile), 16 Nov 2018 @ 6:56am

    How to always claim copyright is in the right:

    "I have the right to stop all derivatives of my work because these are lost sales I am missing out on. My livelihood is at stake."

    *said derivative actually increases sales for the original*

    "I hereby give permission for this particular derivative to be put up. You see? Because copyright allows me to give permission where I want, those additional sales are actually because of copyright law working in my favour!"

    This whole mentality is set up as what we might call an "unfalsifiable claim", a sign of weak rational thinking and intellectual dishonesty. If the test for lack of copyright enforcement is strung up so much that it can't be tested properly, the mentality isn't valid at all.

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


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