Last week, we wrote about how the famous hacker magazine 2600 received a copyright threat letter concerning the cover of its Spring 2012 issue (which, we noted, meant that the three-year statute of limitations had passed for a copyright claim anyway). But this was even worse, because the "claim" was over some ink splotches that were in the background of an image that the threat letter claimed copyright over, and which 2600 used a tiny bit of on its cover. Except... that the splotches themselves were actually from a Finnish artist going by the name Loadus, and licensed freely for either commercial or non-commercial use.
The orange is the magazine cover. The purple is the image the copyright threat letter was about and the green is the actual painting that is freely licensed.
There was some confusion over who sent the threat letter, as it officially came from a company called Trunk Archive, but was sent by a company called License Compliance Services (which appears to be a copyright-troll-for-hire business), but also used an entity called Picscout which is owned by notorious copyright troll Getty Images. Either way, after 2600 pointed out how ridiculous this was, License Compliance Services sent a ridiculous email saying the matter had been closed:
Subject: Case #373018082 , Ref #4440-1159-6664
Hello, I just wanted to take a moment to inform you that after further review this matter has been closed.
License Compliance Services
605 Fifth Avenue South, Suite 400
Seattle, WA 98104
For what it's worth, that address is also the address of Getty Images, so it appears that LCS may be a part of Getty Images after all.
Either way, 2600 points out that this response is fairly ridiculous, given that the company just tried to shake 2600 down for a large sum of money based on a totally bullshit claim. And from there, 2600 goes off on a nice and wonderful rant about the stupidity of copyright maximalism, and the belief that everything must be licensed and paid for. It's wonderful and you should read it:
We're talking about the attempts to license everything under the sun, using high technology to match the tiniest of images, and crushing the very concept of fair use. Art has always been derivative and transformative - our cover at the center of all this is a great example of such a work (just not with any of Trunk Archive's material). But by making people look over their shoulders whenever they try to create something unique using elements of existing works, a chilling effect is created that will result in less works being created. This is also bad for the original artist, who is robbed of the opportunity to see how their creation can be adapted and transformed into something completely different. But in the end, we are all hurt by this kind of thing. Creations such as remixes of music, mashups, new arrangements and interpretations, parody, patchworks of images, logos and pictures captured on film, snippets of code - they can all be identified and monetized. That neat little app on your phone that can identify music? Imagine that going out and automatically charging a fee for anyone who has captured a bit of that music on something they created. Every corporate logo you capture in a picture would also have to be paid for. Imagine where this technology can take us in the next few years if this unbridled greed isn't reigned in.
This has nothing to do with art as most any artist will tell you. It's about control and intimidation, using the prospect of payoffs to lure in unsuspecting contributors. With that in mind, the LCS/Trunk Archive slogan of "Creations Are Valuable" makes sense in a much more opportunistic light. That's why we need to make sure this derivation of art never catches on. Our case may be over, but this is a fight that is only just beginning.
from the putting-the-(c)-back-in-'construction' dept
YOU WOULDN'T DOWNLOAD A HOUSE.
The defendants shall promptly take the following action in respect of the following external features of the third defendants’ house at lot 23 The Sands Estate Port Douglas:
(a) Feature: Dormer roofs
Action: Remove the dormer roofs.
(b) Feature: Arched and circular windows at the front of the house and such other exterior arched and circular windows as are ordinarily visible from public paths or streets.
Action: Remove and replace with rectangular or square windows and any external remnant space, appearance or outline of the arched and circular window shapes be filled and concealed by rendering.
(c) Feature: Stone edge trim corners at the front of the house and such other stone edge trim corners as are ordinarily visible from public paths or streets.
Action: Grind, cut away or remove the areas of stone edge trim to the extent necessary to render those areas flush with the walls and fill and conceal by render any remnant appearance or outline of the stone edge trim.
This is the opening of a recent decision (sent in by a unnamed Techdirt reader) by the Queensland (AUS) Supreme Court -- the end result of a copyright infringement lawsuit alleging that two builders (James Dormer and Michael Clark) worked in concert with a married couple to construct a copycat house. All of this is absolutely true, including the court's demand that dormer roofs (a fairly common architectural feature, actually) be removed and arched windows be converted to rectangles or squares to turn the house from an infringing edifice into something only faintly echoing the original source.
The events behind this outcome are almost comical. Plaintiff Stephen Coles purchased a house designed by George Skyring because he liked its unique features. Defendants John and Edith Breden also liked the house's unique features, but their bid for the house fell short.
So, the Bredens contacted Port Douglas Builders (who built the home Coles purchased) to construct them a replica version, utilizing the Skyring blueprints. Coles somehow heard about their plan to rob his house of its uniqueness and acquired the copyrights to the design by assignment from Skyring. He told the builders about his acquisition, hoping that this would alter their plans (to use unaltered plans). It had no effect. Construction continued. Litigation ensued.
The court doesn't look too kindly on the defendants' actions (as can readily be inferred from the terms of the judgment). Coles made it clear he didn't want to look out his window and basically see "his" house looking back at him. (The Bredens purchased a lot three houses away from Coles'.) He spoke to the construction company directly to express his concerns and -- after acquiring the copyright for the plans -- asked that the builders provide him with copies of their plans for his approval before construction. PDB's reps -- James Dormer and Michael Clark -- agreed to do so… but never followed through.
Mr Clark testified he received a text from Mr Coles that indicated Mr Coles was away and requested the drawings to be scanned and emailed to Mr Coles. Mr Clark testified they decided to not send such a copy. He testified, most unconvincingly, that their preference was to see Mr Coles face to face and that he anticipated Mr Coles would be in touch when he returned or once the plans were submitted for body corporate approval if he did not like them. I infer the unattractive reality is that knowing they had assured Mr Coles they would provide him with their proposed plans they decided to go back on their word, taking a calculated commercial decision to press on without further reference to Mr Coles.
When Mr. Coles returned from vacation, he saw a concrete slab with fittings in place that looked remarkably like the layout for his house. He again contacted PDB and again was ignored. By the time the lawsuit was filed, the Bredens' new home -- Coles House Mk II -- was nearly complete.
Because the court finds the two houses -- and their underlying plans -- to be substantially similar, James Coles wins the case. So, Coles will go back to the unique house he purchased and the Bredens will go back to their version of the same house, which is due to be remixed into un-uniqueness in the near future.
The discussion of the final judgment is also worth reading. The court finds it difficult to apply an injunction considering the replica house has already been constructed. Short of levelling it and forcing the Bredens to start over (which would inflict damages far in excess of what Coles has actually suffered), the court states that altering certain distinctive features is punishment enough and achieves Coles' original objective: to have a "unique" house. The court also refuses to make the Bredens and the construction company turn over every copy of the original plans, seeing as they might need to be referenced to ensure the ordered alterations can be done without disturbing underlying construction elements.
From the decision, it seems the Bredens themselves had little culpability. How much of Coles' concerns were passed on to the couple isn't detailed and they were not asked to testify. This puts them in somewhat of a bad spot if they were unaware. Obviously, the construction company did everything it could to nail down a second sale of the same house (more or less). Passing up the chance to earn another $1,000,000 is hard to do, even when the threat of litigation lingers in the air.
Australia isn't unique in affording copyright protection to architectural plans and design elements. But it is unusual to see a case being brought by a homeowner rather than a designer and even rarer still to see a copyright judgment result in physical alterations to the exterior features of a constructed residence.
As of late, Nintendo's relationship with YouTube and the YouTube community has been, shall we say, tumultuous. After rolling out a bad policy to share revenue with YouTubers on the basis that those personalities torpedo their reputations by promising only positive Nintendo coverage, claiming the monetization for a large number of "let's play" videos uploaded by independent YouTubers, and even going so far as to lay claim to the review of a Nintendo game created by well-known YouTuber "Angry Joe", Nintendo clearly seems to believe that YouTube is not so much an independent community as it is some kind of official public relations wing for the company. This is really dumb on many different levels, but chiefly it's dumb because it breeds ill-will amongst fans, of which Nintendo used to have many.
And the war drum beats on, apparently, as Nintendo has seen fit to issue massive takedowns of videos of fan-created Mario Bros. levels as the company releases its own Mario-level-builder, Super Mario Maker. What appears to be catching these YouTubers in Nintendo's crosshairs is if they used any emulators or hacks in order to make these levels.
Nintendo is targeting speedrunners and modders in a new round of YouTube copyright claims, issuing takedown requests to users who post footage from modified Super Mario World levels. The mass deletion coincides with the upcoming launch of Super Mario Maker, a Nintendo-licensed level creation toolkit for the Wii U console. Removed videos feature unauthorized Super Mario World levels created using freeware tools, rather than Nintendo’s official level design software.
Nintendo’s recent copyright claims impact speedrunners who have spent years crafting and documenting unsanctioned Super Mario World mods. According to a Kotaku report, YouTube user “PangaeaPanga” states that their channel was “wrecked” by copyright claims, resulting in the permanent removal of many popular videos.
In other words, modders had long beat Nintendo to the punch in creating software that allowed fans of Mario Bros. to create their own levels, upload them, and have folks like PangaeaPanga play them out and eventually master them. This was allowed to go on exactly up until Nintendo decided to jump into this arena, at which time the takedowns ensued. What you may not know is that there has been an active Mario Bros. modding community for these past few years, dedicated to building the most challenging levels for others to play and then post their runs on YouTube. In other words, these are huge Nintendo fans.
Super Mario World enthusiasts frequently create custom levels designed to challenge veteran players. Many of these levels require the use of little-known glitches and quirks within Super Mario World‘s engine, adding a degree of difficulty not present in the original game. Creative application of Super Mario World‘s hacking utilities has also produced unique autoplaying levels, including tributes that link in-game sound effects to backing music tracks.
Under the terms of YouTube’s copyright structure, users who have their videos claimed by copyright owners lose the ability to earn advertising revenue from their creations. Copyright holders have the option of claiming ad revenue from content-matched videos. As part of its most recent round of copyright claims, Nintendo instead opted to delete targeted videos entirely.
So we have Nintendo staring lovingly into the eyes of its biggest fans while pissing on their legs. And for what? Part of the reason Nintendo will likely make a killing with Super Mario Maker is that these dedicated fans had built up an interest in these modded levels and speedruns in the first place. Now, Nintendo intends on swooping in, killing off the videos of these fans, and yet cashing in on the market that the fans essentially created? How charming.
It's not that Nintendo can't do this, it's that it shouldn't. The company gains nothing except another round of fan discontent. Real smart, guys.
from the PAY-US-screams-the-recording-industry dept
As we've been covering over the past few years, there's been a big battle going on over the copyright status of "pre-1972 sound recordings." That may sound like a weird thing to be arguing over, but it's due to a weird bit of history in US copyright law. You see, for a very long time, Congress believed that copyright law could not cover sound recordings. However, various states stepped in and either through explicit state law or through common law, created copyright-like regulations for sound recordings. When copyright was finally updated in the 1976 Copyright Act, pre-1972 works were left out of the federal copyright system, even as federal copyright law basically wiped out all state copyright law for everything else. This has created some weird issues, including that some songs that should be in the public domain under federal copyright law are locked up in perpetuity. A simple and reasonable solution to this would be to just move pre-1972 sound recordings under federal copyright law and level the playing field. But, the RIAA has resisted this. That might seems strange, until you realize that the RIAA and its friends saw this weird quirk of copyright law as a wedge issue with which to try to squeeze more money out of everyone.
It started a couple years ago when basically everyone started suing Sirius XM and Pandora for playing pre-1972 music without getting a separate license to do so. Once again, the reasoning here is a bit complex, but prior to the 1976 Act, there really wasn't even any concept of a "public performance right" for sound recordings -- only for compositions. The idea of one for sound recordings only came into existence with the updated copyright law. But what the RIAA and friends are trying to do is to rewrite history and pretend that these various state laws also retroactively meant to include a public performance right, and that these newer services were violating it.
In a series of rulings in the last year, Sirius XM has lost a few of these lawsuits, while winning another one. This has many copyright scholars quite concerned that decades of settled law are being tossed out.
And that brings up a whole different issue. As you probably know, terrestrial radio does not need to pay at all for the use of sound recordings (it does pay songwriters/publishers for the use of the composition), because Congress has (correctly) noted that songs on the radio are a form of advertising, and thus the musicians benefit from it, and there's no reason to pay fees for the performance again. While the RIAA whines about this, the major labels own decades-long practices around payola make it clear that they, too, recognize that radio play is valuable for the musicians and worth paying for -- rather than worth being paid for.
Every few years, the RIAA pushes to have Congress change the law, and to start making terrestrial radio pay a "performance rights fee" for sound recordings as well. But that never seems to get anywhere. So, instead, the RIAA appears to be attacking this via the pre-1972 loophole, and claiming that even though Congress explicitly has said that radio doesn't need to pay, such a promise does not apply to pre-1972 songs. The new lawsuits, from ABS entertainment, aims to be a class action lawsuit for a bunch of pre-1972 music, and has targeted terrestrial broadcasters who also stream online, including CBS, iHeartRadio (previously known as Clear Channel) and Cumulus -- the big three radio broadcasters.
In the meantime, one of the first original cases concerning this issue, against Pandora, has now moved to the 9th Circuit appeals court and a whole bunch of copyright experts have weighed in hoping that the appeals court will reverse the lower court and remind everyone that these state laws never included a public performance right in the first place. Unfortunately, this is the 9th Circuit, which is somewhat famous for its wacky copyright rulings, so pretty much anything goes here. However, should it come out in favor of the RIAA's position, it could mean that pre-1972 music will start disappearing not just from streaming and satellite radio, but from traditional terrestrial radio as well.
Miami Heat part-owner Ranaan Katz will be parting with a bit of his fortune because he is a censorious blowhard who doesn't know when to quit.
Back in 2012, Katz got all sensitive about a blog that posted some court documents he didn't want published. To add imagined insult to imagined injury, the blog also posted a less-than-flattering photo of Katz. This one, to be exact:
Katz tried a "fresh" approach -- one that has been used by others with similar censorious motivations. He went the copyright infringement route. He purchased the copyright to the unflattering picture and filed an infringement lawsuit against the blogger (and Google, which hosted the blog). He also threatened to sue the blogger's lawyers, because Ranaan Katz has yet to discover a hole he couldn't make bigger.
And, for some ungodly reason, he nearly won. His barefaced effort to use copyright protection as a blunt "shut the fuck up" weapon was humored by a lower court, which issued a ridiculously broad injunction against the blogger. But upon later review, the district court decided the use of the photo was clearly fair use.
Plaintiff holds the copyright to an unflattering photograph of himself which Defendant published as part of highly critical blog articles she wrote about Plaintiff. Plaintiff purchased the photograph only after he realized Defendant’s use of it in her blog. Plaintiff’s purchase of the photograph was, from his perspective, to “stop this atrocity” of Defendant using the picture in her critical blog.
As explained by Magistrate Judge Chris M. McAliley in her Report and Recommendation recommending granting summary judgment in favor of Defendant:
Plaintiff is a businessman who testified that he considers the Photo “ugly” and “candid and embarrassing.” He does not claim to be a celebrity and does not claim Magriso’s (the original copyright holder’s) market as his own. Not surprisingly, Plaintiff has not tried to sell or license the Photo to anyone. Rather, Plaintiff testified that he obtained the Assignment of Copyright “[b]ecause I wanted to stop this atrocity.” (Plaintiff views the transfer of copyright as “a correction - correction of a mistake that happened.”). He has not used the Photo other than in this litigation, and has done so here to prevent its publication.
As Judge McAliley recognized in her Report and Recommendation, no reasonable fact finder could find for the Defendant. Plaintiff was privy to all the facts which led to summary judgment in Defendant’s favor from the outset of the litigation. He was fully aware when he filed the suit that he had no intent to profit from his copyright, nor was he a victim of any economic damages from Defendant’s use. The fact that the Court found three out of four factors weighed in favor of Defendant and the other was neutral clearly indicates that Plaintiff’s attempts to stymie Defendant’s speech are precisely what Section 107 is designed to protect against.
Even better, the court calls him out for using copyright as a weapon.
Instead of using the law for its intended purposes of fostering ideas and expression, Plaintiff obtained the photograph’s copyright solely for the purpose of suppressing Defendant’s free speech. Unsurprisingly, Plaintiff argues that protecting his rights under the Copyright Act was his sole motivation for filing this suit. [D.E. 187 at 13]. That assertion is rather dubious. Plaintiff has characterized this action as “just one battle” in a “malicious war.” [D.E. 187 at 1]. While Plaintiff might view it necessary to remove his unflattering picture to “stop this atrocity” [D.E. 148 at 23], he may not resort to abusive methods to do so.
Copyright as censorship. Only this time, someone's actually out a fair bit of cash for abusing the system. That, in and of itself, is an anomaly.
Lots of folks have really strong opinions -- both positive and negative -- about Burning Man, the big "festival/experiment/one-week city in the desert" or whatever you want to call it. But no matter what you think of Burning Man, it's always seemed odd that the organization behind it acts like a crazy intellectual property maximalist at times -- including using twisted interpretations of copyright and trademark law to stop people from doing anything Burning Man doesn't like with photos from the event. It required attendees to sign over the copyright on any photos taken, for instance.
But the latest move by Burning Man is really crazy. Just as this year's festival was ending last week, the sandwich chain Quizno's (long known for their amusing internet-ready commercials), released a pretty funny commercial mocking the commercialization of Burning Man in a way that pokes almost as much fun at Quizno's itself as it does at Burning Man. It does, certainly, mock the event for becoming pretty commercialized and "a place for rich people to check off their bucket list."
Burning Man takes issue with the clip and is considering legal action, not because of the mockery it makes of the more than 70,000-person annual event but because the video is theft of the event's intellectual property, according to Burning Man spokesman Jim Graham.
"We are pretty proactive about protecting our 10 principles, one of which is decommodification," Graham said. "We get a quite a number of requests each year from companies wanting to gift participants with their product or to capture imagery or video of their products at the event, and we turn them all down."
I have no idea what that last paragraph means. You can be proactive about protecting whatever principles you want, but it doesn't allow you to sue someone for making a parody. There was no intellectual property infringed in this ad. Get over yourself, Burning Man.
"We'll be coordinating with our legal team to see what action we can take," Graham said.
And hopefully your legal team tells you can't do jack shit about this. Nor should you. You should relax a bit and laugh at something funny and move on with your lives.
Some potentially good news this morning -- which may be undermined by the fine print. After many years of back and forth, the 9th Circuit appeals court has ruled that Universal Music may have violated the DMCA in not taking fair use into account before issuing a DMCA takedown request on a now famous YouTube video of Stephanie Lenz's infant dancing to less than 30 seconds of a Prince song playing in the background. Because of this, there can now be a trial over whether or not Universal actually had a good faith belief that the video was not fair use.
This case has been going on forever, and if you've watched the video, it's kind of amazing that a key case on fair use should be focused on that particular video, where you can barely even make out the music. The key question was whether or not Universal abused the DMCA in not first considering fair use before sending the takedown. This is fairly important, because, of course, DMCA takedowns suppress speech and if fair use is supposed to be the "pressure valve" that stops copyright from violating the First Amendment, it has to actually mean something. Section 512(f) of the DMCA says that the filer of a DMCA notice may be liable for damages for "misrepresentations," but historically that has been an almost entirely toothless part of the law (in part because of earlier rulings in the Lenz case). People hoped that would change with this ruling, and while the beginning of the ruling suggests 512(f) is getting teeth, the end yanks them all away.
The ruling in the 9th Circuit starts out great, but starts getting iffy pretty fast.
Her claim boils down to
a question of whether copyright holders have been abusing
the extrajudicial takedown procedures provided for in the
DMCA by declining to first evaluate whether the content
qualifies as fair use. We hold that the statute requires
copyright holders to consider fair use before sending a
takedown notification, and that failure to do so raises a triable
issue as to whether the copyright holder formed a subjective
good faith belief that the use was not authorized by law.
Sounds good, right? Anyone sending a DMCA notice needs to take fair use into account before sending a takedown. That may be trouble for all of those automated takedown filing systems out there, many of which we've written about. The court also reiterates that fair use is not "allowed infringement," but rather it's not infringement at all. This is also important (even though it says that directly in the law, many people pretend that it's just an "allowed" infringement). The court is not impressed by Universal Music's defense in the case, in which it argues that fair use is "not authorized by law" because, as Universal falsely claims, it is merely a "defense" to infringement. The court says that's wrong:
interpretation is incorrect as it conflates two different
concepts: an affirmative defense that is labeled as such due to
the procedural posture of the case, and an affirmative defense
that excuses impermissible conduct. Supreme Court
precedent squarely supports the conclusion that fair use does
not fall into the latter camp: “[A]nyone who . . . makes a fair
use of the work is not an infringer of the copyright with
respect to such use.”
So, that's all good. But... the details matter, and from that point on... they're weird. The court points to the earlier ruling, saying that the copyright holder "need only form a subjective good faith belief that a use is not authorized." Thus, as long as the issuer can come up with some sort of argument for why they didn't think it was fair use, they're probably safe.
As a result, Lenz’s request to impose a subjective
standard only with respect to factual beliefs and an objective
standard with respect to legal determinations is untenable.
And because of that, the court leaves a big out for just about any copyright holder. It says the court has no place in questioning how the copyright holder decided whether the use was authorized or not:
To be clear, if a copyright holder ignores or neglects our
unequivocal holding that it must consider fair use before
sending a takedown notification, it is liable for damages
under § 512(f). If, however, a copyright holder forms a
subjective good faith belief the allegedly infringing material
does not constitute fair use, we are in no position to dispute
the copyright holder’s belief even if we would have reached
the opposite conclusion.
The court says a copyright holder can't just "pay lip service" to the idea that it checked on fair use, but in the same paragraph admits that, well, it basically can. Even worse, it says that forming a "good faith belief" doesn't require actually investigating the details:
In order to comply with the strictures of
§ 512(c)(3)(A)(v), a copyright holder’s consideration of fair
use need not be searching or intensive. We follow Rossi’s
guidance that formation of a subjective good faith belief does
not require investigation of the allegedly infringing content.
So.... huh? (1) You need to take into account if it's fair use or not and you need to show a "good faith belief" that it's fair use, but... (2) you don't actually have to investigate anything, and the court cannot review your reasons for having a good faith belief. That's not a loophole. It's a blackhole that collapses 512(f) in on itself.
From there, it actually notes that automated takedowns... may be fine:
We note, without passing judgment, that the
implementation of computer algorithms appears to be a valid
and good faith middle ground for processing a plethora of
content while still meeting the DMCA’s requirements to
somehow consider fair use. Cf. Hotfile, 2013 WL 6336286,
at *47 (“The Court . . . is unaware of any decision to date that
actually addressed the need for human review, and the statute
does not specify how belief of infringement may be formed
or what knowledge may be chargeable to the notifying
entity.”). For example, consideration of fair use may be
sufficient if copyright holders utilize computer programs that
automatically identify for takedown notifications content
where: “(1) the video track matches the video track of a
copyrighted work submitted by a content owner; (2) the audio
track matches the audio track of that same copyrighted work;
and (3) nearly the entirety . . . is comprised of a single
So, uh, what? Automated takedowns may be fine because that's sort of a way to consider fair use because... no reason given. That is not at all helpful.
On a separate note, the court confirms that the trial cannot move forward by arguing that Universal had "willful blindness" about the likelihood of fair use in the case, because Lenz didn't really show that Universal had willful blindness. So that's another dead end.
Finally, the court rejected Universal Music's claim that Lenz had to show monetary damages in order to recover damages under 512(f). The court says 512(f) spans more than just monetary damages. Of course, that's almost entirely meaningless in a world in which everyone has an out through "subjective good faith" that doesn't even require investigating anything.
So this is a ruling that looks good up top, but gets bad as you read the details. There is a dissent, from Judge Milan Smith, pointing out some of the problems with the majority ruling, and the loophole that it creates. As the dissent notes, stating that something is infringing when you haven't done any fair use analysis is a misrepresentation, and 512(f) covers misrepresentations. So, in the end, a possibly important ruling is undermined with a massive loophole, which likely will lead to a continuing barrage of DMCA takedowns, including automated takedowns that suppress speech. That seems... wrong.
As you may have heard last week, a British Airways plane caught fire as it was taxiing on the runway preparing for takeoff. Thankfully, everyone on board escaped with just a few minors scratches and bruises. The plane wasn't so lucky. However, there were lots of other people around on other flights witnessing the whole thing and -- not surprisingly -- many of them have Twitter accounts. And, as has become fairly standard when visual news breaks somewhere with people around, they started tweeting photos. Here's David L. Somers at 4:16pm:
Now, some of us might marvel at this amazing world we now live in, where everyone can be a broadcast reporter should news suddenly happen around them. It's kind of amazing. But, perhaps even more fascinating is the somewhat insane mainstream media scrum that immediately follows. All three of these guys were almost immediately bombarded with news producers from TV, newspaper and online media, all asking for permission to use their photos. This is just a sampling because if I posted them all, i think my hand would cramp up from cutting and pasting so many embed codes. Notice that a bunch of the requests come from the very same news organizations, many asking if they can use it on all platforms/affiliates and such:
@DL_Somers Hi David. May we get your permission to use this photo?
What's kind of amazing is that all three guys basically sat around after all this graciously giving permission to most of the requests over and over and over and over and over again. Some of the requests were more detailed. Some asked the tweeters to get in contact to sign something. The most forward one was the AP who actually sent a "social media release form" as an attached image to a tweet:
So what to make of all this? On the one hand, it seems like a fairly strong graphical representation of permission culture these days. In nearly every one of these cases, the news organizations in question would likely have extremely strong fair use protections. And it doesn't look like any of the three guys above were looking to profit from their photos. To some extent, having taken and posted the photo may have actually been more of a nuisance for them, since they all then had to spend time responding to all those requests. As filmmaker Nina Paley has discussed in the past, permission culture gets super annoying when everyone has to keep asking, and you just want them to be free to use it. But, of course, in an age where every news organization is afraid to get hit with a massive damages award in a copyright lawsuit, they're all going to ask.
That system seems fairly broken. We have at least some solutions for this. Creative Commons can handle some of it, but Twitter has no way to officially designate a CC license on a photo you've posted. That would certainly help a lot. But, overall, the whole thing just seems silly. These photos are news -- and they're initially being posted on public social media for a reason -- because those who took them wanted them to be shared and spread. It seems silly that we need such an insane level of permission gating that every news agency on the planet has to bother these guys to ask for permission.
Intellectual property is often times used to censor others or control that which should otherwise be free. Sometimes it does this for arguably valid reasons. And sometimes it does so in ways so laughably and obviously against the intention of intellectual property protections that it would make you laugh if you weren't too busy yelling in anger. This story is about an example of the latter.
Marcel Duchamp was first and foremost a French-American artist. He painted and sculpted, composed music, and constructed kinetic works of art. He was also an avid player of chess, going so far at one point as to fashion his own chess set personally from wood while in Buenos Aires. This chess set, originally thought to be lost to the world but now confirmed to be part of a privately-owned collection, survived until recently only in archival photographs of the man and his chess pieces. Until, that is, Scott Kildall and Bryan Cera used the photograph to come up with the Readymake: Duchamp Chess Set, which would allow a person to 3D-print Duchamp's chess set for themselves. Kildall and Cera then uploaded the 3D files to Thingiverse and made them available for all to download. Here is how they described the project.
Readymake: Duchamp Chess Set is a 3D-printed chess set generated from an archival photograph of Marcel Duchamp’s own custom and hand-carved game. His original physical set no longer exists. We have resurrected the lost artifact by digitally recreating it, and then making the 3D files available for anyone to print.
We were inspired by Marcel Duchamp’s readymade — an ordinary manufactured object that the artist selected and modified for exhibition — the readymake brings the concept of the appropriated object to the realm of the internet, exploring the web’s potential to re-frame information and data, and their reciprocal relationships to matter and ideas. Readymakes transform photographs of objects lost in time into shared 3D digital spaces to provide new forms and meanings.
Pictured: an example of the 3D modeling from the archive photo of the chess set
Cool, right? The duo's project generated some press after they uploaded it and the two were particularly thrilled to see a discussion emerge between artists and technologists about just what could be done in 3D printing material generated form archival photos. Adjacent to those discussions were conversations about the ownership of design and ideas, which, while interesting, Kildall and Cera didn't think were germane to Duchamp's chess set for any number of reasons (more on that in a moment). Regardless, the estate of Duchamp apparently caught wind of the project and promptly sent a cease and desist letter.
Unfortunately, the project also struck a nerve with the Duchamp Estate. On September 17th, 2014, we received a cease and desist letter from a lawyer representing the heirs of Marcel Duchamp. They were alleging intellectual property infringement on grounds that they held a copyright to the chess pieces under French law.
Except that doesn't make any sense for any number of reasons. Kildall and Cera outline why they chose Duchamp's chess set for the project and, to my reading, they appear to be correct on every count.
1) Duchamp’s chess pieces were created in 1917-1918. According to US copyright law, works published before 1923 are in the realm of “expired copyright”.
2) The chess pieces themselves were created in 1917-1918 while Duchamp was in Argentina. He then brought the pieces back to France where he worked to market them.
3) According to French copyright law, copyrighted works are protected for 70 years after the author’s death.
4) Under French copyright law, you can be sued for damages and even serve jail time for copyright infringement.
5) The only known copy of the chess set is in a private collection. We were originally led to believe the set was ‘lost’ – as it hasn’t been seen, publicly, for decades.
6) For the Estate to pursue us legally, the most common method would be to get a judgment in French court, then get a judgment in a United States court to enforce the judgement.
7) Legal jurisdiction is uncertain. As United States citizens, we are protected by U.S. copyright law. But, since websites like Thingiverse are global, French copyright could apply.
Except that, all that being said, this isn't a work of art we're talking about. Duchamp created his chess set so that he could play chess. It wasn't something he sought to reproduce for sale. He played chess. This would be akin to me drawing a four-square board on the sidewalk in chalk and then claiming I have copyright over it. That's insane. If copyright is built to encourage expression, how does having the one chess set Duchamp ever created locked away in a private collection deserve copyright protection? There's no further expression to encourage. And, indeed, under American copyright law, the clock has run out on the protection anyway. The fact that the Duchamp estate would try to apply French copyright law to this case, where the creation happened in Argentina and when Duchamp himself became a naturalized American citizen, is crazy-pants.
The duo's solution was to lay down their king and take the files down. Well, that was step one in their solution, at least.
We thought about how to recoup the intent of this project without what we think will be a copyright infringement claim from the Duchamp Estate and realized one important aspect of the project, which would likely guarantee it as commentary is one of parody.
Accordingly, we have created Chess with Mustaches, which is based on our original design, however, adds mustaches to each piece. The pieces no longer looks like Duchamp’s originals, but instead improves upon the original set with each piece adorned with mustaches.
If you're not fully aware of Duchamp's artwork, this solution is especially clever because the Duchamp estate would have a difficult time arguing that this is inappropriate, given Duchamp's own artwork. So, it's funny, but that never should have been necessary in the first place. The Duchamp estate's use of copyright to disappear recreative files for a chess set once constructed is a bastardization of copyright's intent.
Remember Adam Miller? The so-called, self-professed "faith healer" sued an online critic, Stephanie Guttormson, earlier this year. It was a clear SLAPP lawsuit. Guttormson had taken one of Miller's laughable promotional videos and added some commentary mocking it. You can see it here:
That video had less than 1,500 views at the time Guttormson was sued. It now has about 65,000. The main claim in the lawsuit was copyright infringement, which is laughable. It's clearly fair use. The video was used in a non-commercial manner for commentary and criticism. It's easily fair use, and the lawsuit was clearly designed to silence public comment. The lawsuit also made some ridiculous claims, such as claiming that calling Miller's nonsense "faith-based bullshit" is "defamatory" because "Mr. Miller's work does not require a client to hold any faith." Yeah. Let that one sink in for a moment.
Either way, just days after this started getting attention, it appears that Miller and his lawyer realized that this was going to end badly and let the matter drop. As we noted at the time, he dismissed the lawsuit without prejudice, meaning that he could potentially file it again in the future. We wondered if that opened up an opportunity for Guttmorson to file for a declaratory judgment, but she announced that she was just going to let the matter drop.
Well... Adam Miller is back and he's insisting that he's going to reopen the lawsuit against Guttormson. Oh, and not only that, he's also launched a new site, FaithWarrior.org where he insists that he's declaring "war" on "anarchy" and a variety of other things, including communism (he insists his critics are all communists), "faith bashing," "cyberbullying," "online harassment" and more. I'm almost wondering if he's signed up Charles Carreon as his lawyer. Carreon similarly declared war on his online critics, after they mocked him for his own SLAPP antics, and he shows up every once in a while to randomly attack those who called him out for his censorship attempts.
Miller's own personal website has been redone -- though parts of it mentioned in the article above appear to have been taken down and replaced with a "coming soon" promotion for a book (which makes it look like Miller thinks all this negative publicity may help him sell books) and the following almost incomprehensible text:
The truth always comes out. Regardless of how many idiotic minds shout in the streets. Faith will prevail and communism shall not rule. And you thought that this was about the healing work... this was just a bait and you have taken it. " Hook. Line. And Sinker. " Every one of you will be exposed. :)
For a "faith healer" he sure seems pretty angry. It starts out "Hey, Guttormson, ASSHOLE!" The rest of it is also somewhat incomprehensible. After some weird mention of Deepak Chopra (huh?), he says:
So here it is. Just because you have a computer, does not mean that you people are something new. Because 80 years ago, in Russia you same people took over the churches and killed all the priests. That's who you people are and I'm going to take you all down.
I have no idea what he thinks he means by that, but then there's his second video where he insists that he's reopening the copyright case against Guttormson and explains how he's going to war against his critics.
In it, he declares that athiests are "communists." He claims "they're backed by the Communist rule. They're put as cells around the country in order to disrupt any kind of belief system." Considering that Miller himself argued that anyone calling his nonsense "faith-based bullshit" was defamatory, you'd think he'd be more careful about making statements of facts about his critics that are laughable.
Then he insists that the lawsuit is back on, though it's not clear he understands the lawsuit he himself is supposedly filing.
My lawsuit is for copyright infringement only.... I am suing Guttormson because he has made ridiculous statements that are completely untrue about a work he knows nothing about. I am now going to reopen that case. We're going to drag this individual into Arizona because he is in Maryland, and we're going to continue the lawsuit. It's very important that everyone follows this lawsuit and understands what I'm going to do to this individual. Because this has everything to do with faith. You see these people are set in this country and they are completely brainwashed again as communist cells and they want to bring communism to America and make sure that we have no freedom of any kind of rights whatsoever.
So much to parse and so little time. If the lawsuit is for "copyright infringement only" as Miller claims, then why does he say it's about "ridiculous statements that are completely untrue"? That's not about copyright at all. That's only true about defamation. And, again, nothing in the original appeared to be either defamatory or infringing. Also, directly saying that you intend to drag someone across the country, and saying it's because you believe she made statements you don't like kind of makes it that much more clear that this is nothing other than a clear SLAPP suit.
Unfortunately, while both Arizona and Maryland have anti-SLAPP laws, they are both super narrowly targeted, only focusing on lawsuits that are about speech regarding government efforts. Yet another reminder of why we need (desperately) a federal anti-SLAPP law.
Also, it seems ridiculous that Miller is claiming that it's Guttormson and others critics wanting to make sure "we have no freedom of any kind of rights" (whatever that means), when it looks like he is seeking to suppress speech through questionable lawsuits. So, again, he's claiming (maybe) defamation while defaming people, arguing that those he's looking to silence are trying to take away all "freedom of rights." So that's two out of the three things that he's claiming others are doing to him that it appears he may actually be trying to do to others. What about the third? Remember how he claimed this is "about copyright infringement only"? Well, the third video that Miller has uploaded to his new YouTube account is a clip from a documentary on the Soviet Union. That seems like it may be copyright infringement, no?
Again, it seems like there's a decent chance Miller is trying to pull a reverse Streisand Effect here. Deliberately picking on those who mocked him in the past, thinking that it will apparently help promote his new book. And, as he says himself, "this was just bait and you have taken it." I doubt it's going to help sell many copies of the book though. Either way, people filing bullshit censorious lawsuits deserve to be called out for doing so.