We've been pointing out for ages that, contrary to what some claim, one of the biggest problems with including things like copyright and patents in international trade agreements like the TPP and TTIP is that it effectively binds Congress' hands, by blocking them from fixing problems associated with those laws. We've highlighted in the past, for example, how the currently leaked draft of the TPP's intellectual property section would require copyright terms to be at least life plus 70 years, which goes directly against what even the Copyright Office's boss, Maria Pallante, has been arguing for, in terms of (finally) reducing copyright terms for the first time, ever.
Specifically, the so-called "orphan works" legislation being pushed by the Copyright Office would limit remedies, including possible compensation or injunctive relief, in certain specific instances for those who make use of "orphaned" works. Yet, the TPP requires that signatories offer monetary damages and injunctive relief to anyone whose work is infringed.
Thus, the Copyright Office's own proposed regulations wouldn't be allowed if the US signs the TPP or would lead to the risk that the US would face challenges either under the WTO or a corporate sovereignty (ISDS) tribunal for failing to adhere to the rules that it agreed to in that trade agreement.
Defenders of the TPP and TTIP insist that neither will change US copyright law as it stands today, but we keep finding examples of where it would bar changes that even the Copyright Office is advocating for. The Copyright Office is supposed to be working closely with the USTR on these agreements, but this raises some serious questions about whether the left hand has any idea what the right hand is doing.
Last week, we wrote about how the city of Inglewood was trying to silence a longtime vocal critic of its mayor, James Butts, by attempting to abuse copyright law. The guy in question, Joseph Teixeira, had posted a series of videos critiquing Mayor Butts, using clips from city council meetings that had been posted to YouTube, and adding a lot of commentary over them. As we noted, it was questionable if the city could even claim copyright on the videos, but even if they could, there was no way the lawsuit could pass First Amendment muster. If the work could be covered under copyright, its use was obviously fair use. Despite this being explained to the city's lawyer -- an experienced IP attorney named JoAnna Esty of Majesty Law Group -- the city filed a brief that is so ridiculous and so laughable, many have argued that she has likely opened herself up to sanctions.
Apparently the duplicitous and ridiculous argument that Esty made on behalf of Inglewood is that the city needs to silence Teixeira by abusing copyright law in order to protect free speech. No joke:
What is really going on here is that the Defendant wants to criticize the City without doing his own work. What he likes about infringing Plaintiff's copyright rights is simply that -- particularly with the Internet -- it is extremely easy, and essentially cost free. The Defendant takes the position that anyone who wants to criticize or comment on anyone else's work would be entitled to make a copy of it (and for free). A person could go into a bookstore, for example, and make a copy of an entire book (instead of buying it) because they do not just want to read it, they want to "comment" on it. If Defendant's argument is adopted, anyone could copy hundreds of books and articles so they could "comment" on them. Then they could scan this library of books and articles, and post them on the Internet with his "comments." To make his websites more appealing, he might also decide to "comment" on photographs, paintings, music, documentaries, and movies. Copyright law would be eviscerated if Defendant's argument is adopted.
The Defendant does not want copyright laws to be enforced. This would have as pernicious an effect on the First Amendment as anything imaginable. It would destroy long existing incentives to create and publish works of authorship in various media, including the Internet. [...] If authors cannot expect compensation for their creative works, they will stop creating them. Id. Not only does the First Amendment not compel this, to allow this would undermine the very First Amendment values that the Defendant so ardently claims he believes in. This would deprive authors of any economic incentive to speak. The result: less free speech, not more.
As Paul Levy pointed out in the link above, the really troubling thing here is that taxpayers are paying for this either way. And if you're wondering how much, wonder no more: the LA Times, which posted an editorial calling for Mayor Butts to resign over this, has also pointed out that the city is paying Esty more than $50,000 for this travesty of justice. Indeed, on March 17th ("Sunshine week" believe it or not), the City of Inglewood approved a $50,000 retainer for Esty for take sake of going after Teixeira, to be drawn down at $300/hour. Seriously.
Meanwhile, Teixeira's top notch lawyers from Davis Wright Tremaine, have hit back with a pretty fantastic reply that lays out all the reasons why Inglewood's legal claims are outright laughable. It even kicks off with a nice reference to last month's 9th Circuit ruling in the Cindy Garcia case:
Last month the Ninth Circuit emphatically held that “a weak copyright claim
cannot justify censorship in the guise of authorship.” Garcia v. Google, Inc., ... In this case, the City of
Inglewood is misusing copyright law to punish a citizen for criticizing his
government, and its claim is not just weak, it is non-existent.
From there, it explains why the entire theory behind the case is faulty -- and the legal filings laughable.
In its Opposition, the City ignores virtually all of the controlling authorities
cited by Mr. Teixeira that show why its claim fails as a matter of law. It also
overlooks the actual contents of Mr. Teixeira’s videos, despite having specifically
identified and linked to these works in its own Complaint. Because these videos are
incorporated by reference into the City’s pleading they are properly before the Court,
and their contents supersede any contrary descriptions in the Complaint. Avoiding
discussion of all of the dispositive issues, the City cannot salvage this meritless
action for several reasons.
First, the City concedes that it has no specific authority to copyright public
records documenting its City Council meetings, and thus its claim is barred by
California law. See County of Santa Clara v. Superior Court, 170 Cal. App. 4th
1301, 1335 (2009). The City makes no effort to distinguish County of Santa Clara or
to question its holding. The City’s failure to counter this decision is fatal to its claim:
where, as here, there is “relevant precedent from the state’s intermediate appellate
court,” and no “convincing evidence” that the state supreme court would decide
differently, “the federal court must follow the state intermediate appellate court
As we mentioned last week, at one point in its original filing, the city argued some nonsense about the Supremacy Clause -- arguing that because the Constitution allows for copyright, and the US Copyright Office has authority to register the works, California cannot stop the copyrighting of the city's council meetings. It made absolutely no sense at all, and the response points this out:
The City’s only argument on this point is misguided, as the Supremacy Clause
is not implicated by a state’s decision not to assert copyright in its own works. This is why every authority to consider the issue has recognized that states can choose to favor broad public access to public records over copyright absent
special circumstances, as California has explicitly done.
Then they point out that Esty's arguments on behalf of the city appear to flat out misrepresent Teixeira's videos to pretend that it's not fair use:
...to avoid a finding of fair use, the City ignores the actual content of the
videos and merely repeats its conclusory allegations that they are “unaltered”
“verbatim” copies of the original City Council meeting videos....
But the City contradicts itself elsewhere in its Opposition, where it necessarily admits
that Mr. Teixeira “adulterates” the meeting videos “by manipulating and adding
derogatory comments” in order “to criticize the City.” ... Either way, the
City’s characterizations of Mr. Teixeira’s videos are irrelevant, because even in the
context of a motion to dismiss, “the works themselves supersede and control contrary
descriptions of them, including any contrary allegations … in the pleadings.”
Finally, the filing takes on that "we're doing this to protect free speech" insanity, by rightly pointing out that, at best, this argument is "Orwellian."
Fourth, the City’s Orwellian claim that it is championing free speech by trying
to quash it does not withstand scrutiny... Copyright promotes
creativity by protecting the “commercial interest of the author,” but claims such as
the City’s, designed to “suppress a derogatory” work are “untethered from—and
incompatible with—copyright and copyright’s function as the engine of expression.”
... These principles guide the
fair use inquiry here, as state law bars the City from making any money from the sale
of its City Council meeting videos.... Nor could Mr. Teixeira’s
highly transformative, bitingly critical videos possibly supplant the market for the
City’s unadorned meeting videos, if one could even exist....
Because the City has no copyright interest in its City Council meeting videos,
and even if it did this would be a classic case of fair use, the Complaint should be
dismissed with prejudice.
Citizens of Inglewood should be seriously questioning just why its government is spending taxpayer funds on this kind of nonsense.
from the missing-the-point-by-a-wide-wide-margin dept
Via Parker Higgins, we learn that Congressional Rep. Sheila Jackson-Lee submitted a House Resolution honoring Frankie Knuckles, the pioneering House DJ (and, here, we no longer mean "House of Representatives") who passed away last year. Such resolutions are pretty typical and a nice honor, if fairly meaningless overall. Still, it seems somewhat bizarre that in a resolution honoring Knuckles, who won the first ever "Remixer of the Year" Grammy back in 1998, that Jackson-Lee used it as a reason to argue for stronger copyright protections:
Resolved, That the House of Representatives—
(1) applauds the contributions made by the House music genre and artists such as Frankie Knuckles to the culture of the United States;
(2) supports the designation of a national day of recognition for Chicago House music pioneer Frankie Knuckles;
(3) recommits itself to ensuring that musical artists such as Frankie Knuckles receive fair protection under the copyright laws of the United States;
(4) endeavors to support the protection of House music artists’ content globally; and
(5) directs the Clerk of the House of Representatives to transmit enrolled copies of this resolution to Frankie Knuckles, or his assignee.
One might argue that when she says "fair protection under copyright laws" she means stronger fair use protections enabling people like Knuckles to more easily remix the works of others into wonderful new works, without needing permission or licenses -- but that seems... unlikely. Either way, it seems fairly bizarre that you'd use someone who revolutionized an entire area of music through remixing others' works in new and creative ways as an example for the need for "copyright protection."
A growing number of consumers use VPNs to access out-of-market Netflix content, quite often because Netflix has yet to reach their market --something that's less of an issue as Netflix pushes to launch in 200 markets internationally before the year's end. However, even in launched Netflix markets, customers often still use VPNs to access the broader U.S. Netflix catalog. For Netflix competitors, the solution to this is fairly obvious (offer better service, more content, and stop using geo-restrictive licensing as a weapon), but of course many companies would instead rather focus on vilifying VPN usage itself.
Before Netflix launched down under earlier this year, Australian broadcasters and Netflix competitors had pouting over VPN usage down to a science, disparaging VPN users as the very worst sort of criminals, while attacking Netflix for not doing more to thwart VPN users from accessing the service (even though Netflix has been more than agreeable on this front). Copyright holders, as you might expect, have also pushed for new laws banning VPN use entirely, believing that makes much more sense than just getting to work competing with Netflix.
The latest example of VPN shaming comes from Canada. While Netflix launched there back in 2010, many Canadians still use VPNs to access the U.S.'s broader catalog of content. Bell Canada of course offers its own Internet video service called CraveTV, and finds any efforts to look for better content elsewhere a travesty of the highest order. New Bell Media President Mary Ann Turcke told attendees of a telecom conference last week that she had to give her 15-year-old daughter a talking to for using VPNs (after said 15-year-old daughter presumably informed mom what a VPN even was):
"To her dismay, Turcke’s younger daughter told her she had been using a Virtual Private Network (VPN) to disguise her location and access Netflix Inc.’s richer U.S. video library, which is otherwise off-limits to Canadian subscribers. "Mom, did you know that you can hack into U.S. Netflix and get sooo many more shows?” she recalled her 15-year-old daughter saying. A scolding lecture ensued, putting an end to the VPNing at the Turcke house. She says more conversations about what’s right and wrong should be had at dinner tables across Canada."
From there, Turcke (who is replacing Kevin Crull, fired from Bell after he refused to let regulators he disagreed with appear on television) proclaimed that society as a whole really needs to step up to the plate and start publicly shaming VPN users so they understand what they're doing is an atrocity of the highest order:
"It has to become socially unacceptable to admit to another human being that you are VPNing into U.S. Netflix," Turcke said in a keynote Wednesday at the Canadian Telecom Summit. “Like throwing garbage out of your car window, you just don’t do it. We have to get engaged and tell people they’re stealing."
The industry can’t just rely on government and the broadcasting watchdog to police and solve this growing problem, she says. It’s up to ordinary people to tell their guilty friend, colleague or child that stealing is wrong."
Of course they wouldn't be "stealing" if companies like Bell were providing them with the content they want at the price consumers want it, something that fortunately doesn't entirely fly over Turcke's head:
"We, Bell Media, we, the industry, need to make our content more accessible. Just make it easy,” she said. “Viewers are demanding simplicity and they will seek it out."
Turcke should have just skipped to that conclusion without the lecture on morality.
Rich "Lowtax" Kyanka is certainly no stranger to ridiculous and misguided legal threat letters -- and it appears that he's now got another one. On Monday, he posted to Twitter an image of a threat letter from law firm Higbee & Associates, claiming that this April 2014 review of the Scarlett Johansson film Under the Skin is infringing on Higbee & Associate's "client's" copyright because it includes a still image from the film.
Here's a screenshot of the image in the page with the review:
The review itself is fairly positive on the movie. And, if you're wondering, that same exact image was used on tons of reviews. Like this one and this one and this one and this one, and I'm getting tired cutting and pasting, but trust me, there are plenty more.
There are some oddities about the letter itself. First off, it doesn't appear to ever name the client in question. Actually naming the client/copyright holder is pretty typical with these kinds of letters. They usually note that they are representing a particular client, and make it clear who holds the copyright to the work in question. Yet, here, Higbee & Associates doesn't do that. The letter also makes some weird assertions that suggest whoever wrote the letter isn't all that familiar with copyright law. For example, there's this:
As the infringement occurred on a company website, the company is liable for the unauthorized use in the absence of a valid license, including cases in which a website designer, employee, intern or any third party is responsible for the inclusion of this image on your website.
That, of course, completely ignores the DMCA's safe harbors which actually say the opposite: that a service provider can be protected from liability from actions of third parties, under some specific circumstances (which may or may not apply here -- but it does seem odd that the Higbee lawyer seems to not even understand this).
In fact, looking at Higbee's website, almost everything feels a little... off. It's strange enough that Higbee puts "A National Law Firm" in its own damn logo, as if that's a key selling point, but its website reads like what non-lawyers would think a law firm's website should say.
If you can't read that, it says:
We are a national law firm that prides itself on providing exceptional value by delivering high quality legal representation, the best customer service, and prices that are typically 35% below industry standards.
We offer flat fee pricing on most services so there are no bad billing surprises. We have an online case management system that allows you to see up to the minute details on your case. Most of the cases we handle even have a money back guarantee. Our dedication to our customer service is so strong that it has earned us "A+" ratings with the Better Business Bureau for 7 straight years.
Well, okay then.
It seems likely that the unnamed "client" here is INFPhotos, which is a stock image provider of celebrity photos. Some of the other stories that have used the same image cite INFPhotos, so chances are that's who's licensing the photo. Given all that, perhaps there's some sort of legitimate claim buried deep behind the weird threat letter, if the image is not actually from the movie itself, but from a separate photographer. Even so, it seems like a bizarre reason to go after SomethingAwful, and one that's not likely to end up going particularly well for Higbee & Associates.
That's all super sketchy. But that's just the very beginning of this story. Because days later, Thejesh received the most ridiculous legal threat letter, coming from a lawyer named Ameet Mehta from the law firm Solicis Lex. It claims to be representing an Israeli company, Flash Network, which is apparently responsible for the code injection software... and it claims that by merely revealing to the public that Airtel was doing these injections, he had engaged in criminal copyright infringement under the Information Technology Act, 2000.
If that sounds familiar, that's because we wrote about that ridiculous law last year, noting that it would technically allow people to be put in jail for merely thinking about infringing someone's copyright.
And the Solicis Lex lawyers, to show they're not messing around, cc'd the police on the letter they sent:
The crux of the "copyright" claim seems fairly ridiculous:
The said code is closed source software and our client is sole proprietor of the same. Therefore, no one can use the said code without obtaining license from our client against payment of fees and/or royalties and on commercial and legal terms acceptable to our client. Your aforementioned actions constitute a blatant violation of our client's copyrights and other proprietary rights in the said code.
Remember: all Thejesh GN did was show the code that Airtel inserted into his browser. If Flash Network thinks that showing the code that it dumps into each of your browsing sessions is criminal copyright infringement, just about anyone who does a "view source" could be guilty. That's a plainly ridiculous reading of the law.
On top of that, the lawyers sent a DMCA notice to GitHub, which caved in and took it down:
This is despite GitHub's recent promise not to take things down without first alerting the users in question.
For those who argue that copyright is never used for censorship: explain this story.
Of course, it all seems to be backfiring in a big way. Flash may have wanted to hide what they were up to, but now it's getting much, much, much more attention. Maybe, next time, rather than threatening whistleblowers of your bad practices with claims of criminal copyright infringement, Flash and Airtel will think more about their own crappy business practices that put users at risk.
Techdirt has been writing about major trade deals like TPP, TAFTA/TTIP and -- most recently -- TISA more than most. But there's one that we've not mentioned so far: the Regional Comprehensive Economic Partnership (RCEP). As Wikipedia explains, RCEP is:
Between the ten member states of the Association of Southeast Asian Nations (ASEAN) (Brunei, Burma (Myanmar), Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand, Vietnam) and the six states with which ASEAN has existing FTAs (Australia, China, India, Japan, South Korea and New Zealand). RCEP negotiations were formally launched in November 2012 at the ASEAN Summit in Cambodia.
As that makes clear, as far as participating nations are concerned, there is a big overlap between RCEP and TPP. The crucial difference is that the US is taking part in TPP, but not RCEP, while China and India are in RCEP, but not TPP. In this sense, then, they are rival free trade agreements, battling it out for economic supremacy in the Pacific region. Given the different views of the leading nations involved -- the US on the one hand, China and India on the other -- you might think the two trade agreements would be turning out to be very different, at least in certain areas. For example, as an interesting EFF analysis of a leaked South Korean RCEP document puts it:
We might then, expect that RCEP could be the "anti-TPP"; a vehicle for countries to push back against the neo-colonial ambitions of the United States, by proposing alternative, home-grown standards on the TPP's thorniest issues such as copyright, patents, and investor protection. Some members of RCEP have indeed spoken out against the TPP because of its unbalanced promotion of strict copyright and patent laws, and some commentators have characterized RCEP and the TPP as competitors.
But based on yesterday's leaks, the promise of RCEP pushing back against the TPP is being squandered. Instead, its IP chapter is turning out as a carbon copy.
Here are just a few of the proposals in the leaked South Korean document:
Prohibiting temporary copies of works in electronic form (a thoroughly misguided and anti-innovation provision that has even been erased from the TPP).
A prohibition on the Internet retransmission of broadcasts, mirroring proposals for a Broadcast Treaty that would inhibit the free use of public domain material.
Inflated awards for copyright or patent infringement, by calculating damages payable for the infringing works on the assumption that they were sold at full retail market value.
Criminal penalties for “commercial scale” copyright and trademark infringement, even where the infringer has not sought or made any profit from the activity.
Suspension of the Internet accounts of repeat infringers, and censorship of bulletin boards that are "considered to seriously damage the sound use of copyrighted works" (whatever that means).
As the EFF post rightly notes, these and the other ideas it lists are even worse than those found in TPP or ACTA, which is some achievement. So the question has to be: why has South Korea adopted this extreme position? The EFF offers an intriguing guess:
Having been pushed into accepting unfavorably strict copyright, patent, and trademark rules in the process of negotiating its 2012 free trade agreement with the United States, Korea considers that it would be at a disadvantage if other countries were not subject to the same restrictions.
If true, that would be a good demonstration of how intellectual monopolies like copyright and patents are not boons that bring benefits to those who embrace them, but banes that are imposed on others in order to hobble them.
The South Korean chapter, with its revelations of just how bad things might be under RCEP, confirms once more the critical importance of leaks when negotiations with potentially far-reaching and global implications are conducted behind closed doors. Moreover:
Now that the text has been leaked and it has been revealed to be so atrocious, we can begin to build pressure for the negotiating countries to open up the process.
After all, it's hard to combat a threat if you don't even know it's there.
As you may have heard, DARPA, the wonderful government agency folks who helped bring us the precursors to the internet and self-driving cars, held a giant robotics competition this weekend, known as the DARPA Robotic Challenge, or DRC. It was full of amazing robots -- though everyone seems focused on the ones that fell over, despite the amazing advancements in robotics that were on display.
One bit of "robotics," whose best work is not on display, is the robotic nature of YouTube's ContentID copyright censorship. If you go to check out the six hour YouTube video of the DRC Finals Workshop on YouTube you'll get to witness everything, but not hear a damn thing. Because, apparently, there was a copyright-covered song playing somewhere in the background, YouTube muted the whole damn thing:
So, yup, rather than learning about the latest advancements from our soon to be robotic overlords, we'll just silence everything so someone's copyright isn't infringed because it was playing quietly in the background at a daylong event.
For many, many years, we've been discussing the "problem" of "orphan works" under copyright law. These are works that are not available any more, and where it simply is not possible to find the copyright holder to seek out a license. Of course, this problem is almost entirely self-created. It's the result of a forced switch from a system that required registration to get a copyright, to one where everything is automatically covered by copyright. Combine that with ever-expanding copyright terms and you have a recipe for a world in which the vast majority of works become "orphaned" while just a tiny few have any legitimate reason to remain under copyright protection. Millions of books, millions of photographs and hundreds of thousands of films are now considered orphaned works -- unable to be either used or licensed -- with many simply fading away. In fact, some have reasonably advocated that we should be referring to them as hostage works rather than orphaned works. These works haven't been "abandoned." They need to be freed, not given adoptive parents.
In the past, attempts at legislating a solution to the problem with these hostage works have fallen flat, often after facing significant pushback from authors and photographers who spin ridiculous stories about how orphan works legislation is really about legalizing the "stealing" (of course) of their works. Of course, that's never actually the case. Pretty much all attempts at dealing with orphan/hostage works involve requiring significant attempts at locating copyright holders.
Either way, the US Copyright Office has released a giant report on what to do about "orphan works," which is an interesting read, even if the Copyright Office still can't bring itself to admit that the "problem" of these hostage works has to do almost exclusively with two legal changes it has long supported: getting rid of formalities (registration) and extending copyright terms. Instead, it acts as if such hostage works are a problem wholly unrelated to all of that -- and in need of new policies to "fix" the problem that the old legal changes created, rather than rolling back those bad policies.
The report proposes a law fairly similar to the one that we wrote about a decade ago, but slightly more ridiculous: it includes a requirement for users to "register" their use of orphaned works with the copyright office:
In addition to a diligent search, condition eligibility on a user filing of a Notice of Use with the Copyright Office, providing appropriate attribution, and engaging in negotiation for reasonable compensation with copyright owners who file a Notice of Claim of Infringement, among other requirements;
Think about that for a second. Rather than fix the actual problem by requiring registration by the copyright holder, the Copyright Office is recommending, instead, that the user have to register. The Copyright Office, bizarrely, defends this requirement by saying that it will serve a useful purpose of bringing users and copyright holders together:
The Office believes that the principal advantage of a Notice of Use requirement is that copyright owners can use it to become aware that their work is considered orphaned and more easily respond to users. As noted above, the goal of any orphan works provision should be to unite owners and users.
Um, you know what would be even better at that stated purpose? Requiring the copyright holder to register in the first place so that there would be no such thing as an "orphaned" work and any user could much more easily find the copyright holder in question. But that's not even remotely considered in this report.
And the really amazing thing is that any time people bring up the idea of requiring registration/formalities for copyright holders, they are always dismissed out of hand as "too burdensome" for copyright holders. Yet, here, when requiring the same damn thing for those wishing to use hostage works, the Copyright Office dismisses the concern out of hand because it also provides some other ways around it.
The other bizarre thing about the report is that it seems to be dripping with contempt for fair use. The report, rightly, notes that there have been a few recent important court rulings -- such as the Hathitrust and Google book scanning cases -- that have recognized that fair use is often a perfectly reasonable tool for dealing with some of the issues raised by hostage works. However, the report basically says "Sure, but that could change."
The Copyright Office notes that the judiciary has yet to explicitly address how to apply fair use to orphan works. Thus, the informed and scholarly views of some commenters as to the application of fair use in specific orphan works situations do not yet have as their basis any controlling case law. Also, fair use jurisprudence is, because of its flexibility and fact-specific nature, a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change.
In response to this, the Association of Research Libraries points out that the Copyright Office is not just wrong, but it's overthinking things:
The Copyright Office’s denigration of fair use as a solution to the orphan works problem is disappointing. What the Copyright Office fails to acknowledge in its analysis of recent fair use jurisprudence is that fair use is a fairly predictable doctrine. As Professor Pamela Samuelson noted in a 2009 article entitled, Unbundling Fair Uses, “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.” The Copyright Office’s suggestion that because fair use is flexible and fact-specific it is insufficient to address orphan works, is also misleading. By analogy, while the Copyright law does not have an explicit limitation or exception for the use of VCRs or DVRs, specific legislation to ensure that recording using such devices is lawful is not necessary because it is widely understood that such activity is fair use.
The ARL also points out yet another example of the Copyright Office treating the symptom rather than the disease by making the problem worse. That is, while the Copyright Office insists that fair use is too much work to use as a defense, it ignores the fact that its own "solution" for orphan works is a tremendous amount of work for users:
Furthermore, the Copyright Office suggests that even where fair use may be a defense, “many will choose to forego use of the work entirely rather than risk the prospect of expensive litigation.” The Copyright Office fails to recognize that its proposed burdensome legislation that requires extremely time and resource intensive searches as well as notice of use requirements, could also cause users to forego the use of the work. Additionally, where legislation appears overly complicated, while institutions and corporations may make use of it, individual users may find compliance difficult.
In short, rather than fix the basic problem that created orphan/hostage works in the first place with the obvious solution of going back to a system that requires formalities (registration), the Copyright Office, instead, thinks the best solution is to put a huge burden on the public. This is not how the law is supposed to work. Copyright, as designated in the Constitution, is supposed to "promote the progress" by providing the public with greater access to works. Yet, once again, we see the Copyright Office focused on putting greater burdens on the public, rather than working on making works more available and accessible.
Abbott & Costello's Who's on First? routine is one of the most well-known comedy bits of the 20th century. There are a bunch of different variations on it, and they often changed things around when they performed it. Here's one famous performance of it:
Of course, the history of the skit is a bit complicated with plenty of examples of similar skits being performed long before Abbott & Costello did their version. In fact, Abbott himself performed a version of it with someone else before teaming up with Costello. There have also been different debates over who actually wrote it -- which isn't that surprising given how many different versions there were and how others had performed similar skits.
And of course, this is how a normal creative process works, with experimenting and adjustments until it reaches a level that's entertaining. People build on each other's work, and they share and then change things around. But, in a world of copyright, that gets tricky. Milton Berle once claimed that "Who's on First" was in the public domain and that everyone, including himself, used to perform versions of it.
But, of course, nowadays we live in a world where absolutely everything must be "owned" and the various heirs of Abbott & Costello insist that they own the rights to "Who's on First," and anyone who wants to do anything with it must license it from them first.
And thus, they are now suing the playwright and producers of a new popular Broadway play Hand to God that apparently includes a brief scene where one of the characters tries to impress another character by performing a version of Who's on First? with puppets.
In the lawsuit, they trace the somewhat circuitous path of the copyright itself. It was originally held by Universal Pictures Co. after the act appeared in Universal's One Night in the Tropics film in 1940, and then again in The Naughty Nineties in 1945. It notes that Abbott & Costello had a work for hire agreement with the studio, giving up all the rights to the act. Those copyrights have been renewed and extended thanks to changes in copyright law. However, in 1984 Universal transferred the copyright of just those scenes back to the heirs of Abbott & Costello. The heirs admit that the sound recordings did not have a federal copyright, but they do say that under NY state law, they have a "common law" copyright in the sound recordings -- and that's helped along by that recent ruling against Sirius XM concerning common law copyrights in NY.
Still, that raises a bunch of questions. While they may hold the copyright in those specific performances, given that the act was done way before that, do they really hold the copyright in the entire "Who's on First?" script? It seems like a very strong argument can be made that they do not.
On top of that, if there actually is a copyright claim here, it seems like the fair use defense is a fairly strong one as well.
According to the NY Times article:
The federal lawsuit, filed in the Southern District of New York, is claiming copyright infringement against the playwright Robert Askins, the producers and the promoters. The estate said cease-and-desist requests were sent after the play opened on Broadway in April, and it is seeking damages and lawyers’ fees.
“ ‘Hand to God’ is using ‘Who’s on First’ not just to get laughs from the audience but also to get people to buy tickets,” a lawyer for Abbott and Costello’s heirs, Marc Rachman, said in a statement.
This is, clearly, an attempt to end-run around a fair use defense, but I don't think it works. I don't know what that line even means about "not just to get laughs." No one is going to this play as a substitute for going to see Abbott & Costello perform the skit. People are going to the play because it's getting great reviews and is funny -- not because of the use of the skit, which is being performed not because of the inherent humor in the skit itself, but rather as a sort of cultural touchstone, referencing the famous skit. In the past, this would be what was known as an homage. Today, the lawyers and copyright maximalists call it infringement. But here, it seems pretty clear that it's transformative, as the use is for a very different purpose (and, of course, done in a different way, involving a hand puppet, which is key to the plot of the play).
Beyond that, the actual complaint seems to undermine their own argument:
The scene takes place only about fifteen minutes into the one hour and forty-five minute play, and is one of the lighter moments of the production, without which the much darker tone of the rest of the play would be very difficult for the audience to handle. It is this purely comedic scene featuring Who's On First?, conterbalanced with the more dramatic and serious themes of the play which are developed later on, that has allowed the play to garner both commercial success and wide audience appeal as a "dark comedy."
But, by saying that, they're basically admitting to the transformative nature here. It's not being used as Abbott & Costello intended, as a vaudevillian slapstick, but rather as a set piece in a much larger, much darker piece. Also, who the hell are they to claim that the play would be "very difficult for the audience to handle." How is that their position to say?
And the legal precedents don't look good for the heirs either. A couple years ago, we wrote about the play Jersey Boyswinning its lawsuit, allowing it to use a clip from the Ed Sullivan show thanks to fair use, noting that the use of the clip was clearly not a "replacement" for the original. Same here. And, just a couple months ago, another off-Broadway play was victorious in arguing fair use in using the premise of the TV show Three's Company to create its own parody show. Thus, it seems that judges are recognizing that plays can make use of fair use to use elements of cultural touchstones in order to create their own enterntainment.
Either way, I'm sure plenty of lawyers will be able to bill tons of hours as this creates a huge legal mess, rather than just celebrating a moment of American cultural history.