A few decades ago, Bill Gates got involved in something of a "side project" in which he tried to gain control over the licensing rights of tons of photographs and artwork, in a project that was eventually called Corbis. Gates had a vision of licensing artwork to special digital frames in people's homes, but eventually it shifted into a standard photo licensing service. Late last week, the news broke that Gates had finally sold Corbis to a Chinese firm called Visual China Group. Part of the deal is that Corbis' main competitor, Getty Images (which is fairly well-known for its copyright trolling) will get to handle all licensing on Corbis images outside of China for a period of 10 years. Considering that this effectively gives Getty control over its largest rival's library, I wonder if the DOJ may take an interest in the deal on anti-trust grounds.
For now, of course, the licensing deal with Getty will mean that such images are likely to still remain available outside of China (where such images are almost never seen at all). But the fact remains that the control and rights ownership is now with a Chinese company, which may decide at some point to try to restrict the rights to those images globally. We've seen some copyright maximalist supporters insist that it's ridiculous to think that copyright ever leads to censorship. But right now there's at least a pretty good reason to fear that's exactly what will happen.
Remember that, for years, US intellectual property maximalists have whined and complained that China didn't "respect" American intellectual property. And they put increasing diplomatic pressure on China to "have more respect" for patents and copyrights. In response, China quickly realized that patents and copyright were a great tool of control for the Chinese government and Chinese industry and have used it to punish foreign companies. And, if the US complains, China just points out that it's only doing exactly what the US pressured it to do. So don't be surprised if it starts using copyright in the same manner. In fact, during the big SOPA debate, it's worth noting that Chinese officials gleefully pointed out how the provisions in SOPA were basically the same as the famed Great Firewall of China.
Once again: yes, copyright can and often is used as a tool for censorship. And that's why it'll be worth paying attention to what happens to the licensing rights of these images.
from the so-much-stupid-and-so-many-layers-of-permission dept
Darlene Love, the voice on the Phil Spector-produced hit "He's A Rebel," is suing Google and its ad producer, 72 & Sunny, for violating her publicity rights by using a song she recorded in one of its ads without her permission.
The lawsuit seems to revolve around California's much-maligned "right of publicity" law, which allows plaintiffs to sue entities for using pretty much anything about them, rather than just for bog standard copyright infringement.
That's going to be key because it seems clear Google cleared the rights to use a song of hers in its Nexus ads. That would just leave the extra "permission" Love feels she's been screwed out of: the "right" to block Google from using a legally-licensed track.
A voice does not end up in a commercial advertisement by accident. Rather, a number of people are involved in the creation of commercials. The voice of a famous performer, singing a famous song is selected for the express purpose of trading on the performer’s goodwill. Defendants consciously and deliberately selected Love’s vocal performance of It’s a Marshmallow World for their commercials.
However, Defendants refused to take any steps to obtain Love’s consent and had no reason to believe she had or would consent to such use. Instead, Defendants took deliberate measures to evade contacting her or obtaining her permission.
Love's voice was used, as it was part of the licensed track. Her goodwill remained where it always was -- loaded like a spring trap, apparently. She accuses Google of deliberately using a non-union ad producer to ensure her union-granted "rights" (whatever they are…) were routed around.
An honest company, doing business in good faith, would not attempt to deprive Love of the benefits of the union protection and would have engaged a SAG-AFTRA affiliated advertising agency so that the performer (and the background singers) would receive at minimum, the union-mandated benefits.
Defendants actions were despicable and in conscious disregard of Love’s rights. They turned her into an involuntary pitchman for products of dubious quality. They created a commercial that falsely implied to the public that Love had endorsed Google’s products.
That's a stretch. It's obvious Google chose the song for its lyrics (advertising a new phone containing its "Marshmallow" version of the Android operating system), rather than for Darlene Love's $75,000-worth of "goodwill."
Love gets her shots in at the nationally-acclaimed ad agency as well, claiming it colluded with Google to screw her out of something the lawsuit fails to specifically name. (But apparently worth $75,000+)
Google engages in anti-labor advertising practices and in an effort to harm Love, hired Sunny, a scab shop that utilizes recordings of artists created under the protection of collective bargaining agreements, without themselves becoming signatories and complying with the union-mandated obligations for the reuse of phonograph records in commercials.
Google’s conduct was so loathsome that it intentionally hired a disreputable non-union affiliated advertising company and the two of them deprived Love of her union protections, all to enrich themselves at her expense.
As you can see, some parts of the lawsuit read like someone's emotional blog post and -- I can't state this enough -- there are no accusations in the filing that Love did not receive compensation for the licensed use of her work. The agreement she cites as the basis for her beef with Google and its "scab" ad agency says nothing about seeking an artist's permission. It only notes they may be entitled to an additional, separate royalty. Nowhere in the suit does Love claim she did not receive the royalties she was entitled to. Instead, she's trying to use a bad law to extract $75,000 from Google simply because if they'd asked if she would like to be in its ad, she would have said no.
Can she win this? Anything's possible. The unauthorized use of someone's likeness -- which includes their voice -- can be considered a violation of the right of publicity under the local law. There's a good reason why she's brought this lawsuit in California, rather than New York, where she lives and Google has an office. In California, her suit isn't pre-empted by federal law, which means she can use the friendlier local law to pursue damages.
But she'll have to make a stronger case that Google intentionally traded her goodwill for thousands of dollars -- rather than simply licensed a song with "marshmallow" in the lyrics. It really seems like her beef should be with her union for not ensuring her the chance to reject the use, rather than Google, which apparently paid the licensing fees and handled everything correctly on its end of the deal.
We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.
After that interview, I picked up a copy of the book and have only just started it, but am impressed already. By not just focusing on Swartz, but the wider context of copyright law and information policy over the years, it makes Swartz's focus much more understandable. I've found that, in talking about Swartz with people who aren't familiar with internet and open information culture, that they don't understand why Swartz would focus on what he did. But when put into the much broader context, it becomes much more understandable. For folks who are already knowledgeable about this world, it's still an interesting overview, potentially capturing parts that you weren't aware of, or putting other aspects into context as well. For folks with little deeper knowledge of the background of the open culture movement, it's a wonderful way to immerse yourself in the details.
One of the reasons why many people are opposed to various "site blocking" laws, is that inevitably such things get abused. And while the US successfully stopped SOPA's site blocking plan, plenty of other countries went ahead and implemented something similar -- including, apparently, Portugal. Yet, earlier today, reports came out that the Portuguese site-blocking system was now blocking the website of an American video game development shop called Carbon Games.
Now, it does appear that someone just screwed up here. It's not happening on all Portuguese connections, but it did happen on multiple ISPs according to the initial report on Reddit. Also, it seems they only blocked the version of the website where the URL starts with "www." Get rid of that and people could access the website without a problem -- again adding to the likelihood of a general screwup. Oh yeah, also, it looks like if you use any other DNS provider, such as Google's DNS, you'd avoid the blocks (another reason why blocking at the DNS level is kind of stupid).
Either way, even if it was just a "mistake," the fact that it happened at all should be a huge concern. When entire websites can be blocked without any real review or due process, it opens the door to much more serious and widespread censorship. It's again troubling how quickly many in the copyright realm ignore the nature of this slippery slope.
A little over a year ago, the MPAA pulled out all the stops in announcing and promoting its new WhereToWatch.com website, which provides lots of information on where you can watch authorized versions of various movies and TV shows. The idea behind it was certainly a noble one. One of the big arguments made by many concerning accessing unauthorized copies of such content is that there aren't real legal alternatives. So the MPAA figured that if it makes it easier to find such authorized alternatives that would be helpful. And, indeed, that's a good idea.
Of course, underlying all of this was that the MPAA hoped to use this site to try to undermine the argument that piracy is about a lack of alternatives. The MPAA basically never misses a chance these days to point to the site as "proof" that Hollywood is meeting consumer needs, and thus claiming that piracy is not about a lack of authorized versions. It seems worth noting that this leaves out that not all authorized versions are convenient (which is another big complaint), including things like restrictive DRM or security-faulty technology. Or they do stupid things (at the demand of Hollywood) like only letting you watch a movie you paid for within a 24-hour time frame. But, let's leave that aside for the moment.
Instead, let's focus on the fact that the MPAA is using this site to push for revisions to the DMCA, such as pushing heavily for a "notice and staydown" provision that means that once they send a DMCA takedown notice, online platforms would be required to make sure such content never shows up again, or face serious liability. This is problematic on any number of levels, including the fact that it increases monitoring, decreases privacy and does nothing to take context into account (the same content may be infringing in some cases, while fair use or authorized in others).
And it totally fails to take into account the vast number of false takedowns. For example, how about false takedowns directed at the MPAA's own WhereToWatch website? Because TorrentFreak is reporting that Hollywood studios have been sending such bogus DMCA takedowns, directed at links to the MPAA's own site, which the MPAA itself has argued is a key part of its "anti-piracy" strategy. The article points to DMCA takedown notices sent for the WhereToWatch links for such Hollywood blockbusters as The Hunger Games: Mockingjay -- Part 2 and The Fault in Our Stars on Google, meaning that when you do a Google search on trying to find those entries on WhereToWatch, you come up empty:
Yes, yes, these are "simple mistakes" almost certainly made by companies hired by the studios who do terrible half-assed automated searches and takedowns without ever bothering to see if what they're taking down is legitimately infringing. But that's kind of the point. The MPAA wants a notice-and-staydown provision because they want to pretend that these kinds of mistakes never happen, rather than acknowledge the reality that they happen basically every day -- even to (or by) the MPAA itself.
Strap in, folks, because we've got quite a battle brewing. You may recall that Mike Huckabee recently found himself the subject of a copyright dispute with Frank Sullivan, a member of Survivor, over the use of the band's hit song Eye of the Tiger at a rally for the release of Kim Davis. Davis was the county clerk who asserted that her right to express her religion -- in the form of denying same sex couples the right to marry -- overrode the secular law of the land, which is about as bad a misunderstanding of how our secular government works as can be imagined. Sullivan's filing indicated that the rally was conducted by the Huckabee campaign and that the use of the song had been without permission, therefore it was an infringing use. Left out of the filing was any indication of whether the Huckabee campaign had acquired the normal performance licenses.
Based on Huckabee's response, it seems like no license was ever obtained, as Huckabee is instead claiming the use was fair use, and that the use was exempt from copyright law to begin with because the Kim Davis rally was a religious assembly.
The fair use claims are pretty simple, though I'm not sure they're particularly likely to succeed. Huckabee claims the use was non-commercial (relating back to the nature of the rally as a religious gathering), that the amount of the work he used was non-substantial (something like a quarter of the entire recorded song was used), and argues that the effect of it being played was essentially one of free advertising for the band, and so there was no harm done in the marketplace. We've seen those affirmative defenses raised in the past, with varying degrees of success, but this doesn't ring as a case where the copyright holder is reaching as far as in other cases we've covered.
And, ultimately, part of Huckabee's fair use defense - in particular that the use was non-commercial and, as Huckabee goes even further to state, had nothing to do with election campaign -- relies on the notion that the Kim Davis rally was an independent religious gathering, not any kind of campaign stop.
His campaign also invokes a rarely used limitation to a copyright owner's rights — one that exempts "performances of a nondramatic literary or musical work ... in the course of services at a place of worship or other religious assembly."
From the filing itself:
Notwithstanding the provisions of 17 U.S.C. § 106, 17 U.S.C. § 110 (3) provides in part that the performance of a nondramatic literary or musical work in the course of services at a place of worship “or other religious assembly” is not an infringement of copyright. Although not explicitly defined in the Copyright Act of 1976, the term “nondramatic musical works” refers to musical works, such as popular songs, not incorporated and performed in an opera or theater musical. Based on the averments of paragraph 7 of the Complaint, “Eye of the Tiger” is a popular song and a “nondramatic musical work” within the meaning of 17 U.S.C. § 110 (3).
The September 8, 2015, assembly for Mrs. Davis was, in view of all the surrounding circumstances, a “religious assembly” within the meaning of 17 U.S.C. § 110 (3) and the First Amendment to the Constitution of the United States.
Drink it in. The claim is a stunning one, where Huckabee, ostensibly a man who holds faith and religion in high regard, is suddenly willing to degrade the concept of a religious gathering simply to support his use of a popular song at a rally for someone he supports. One wonders exactly how the claim might work, what with the wide swath of gatherers at the rally, located outside the jailhouse for a secular government, on public land, and attended ostensibly by enough people that it strains credulity to even imagine that they might all be from one church or one faith. Nowhere is it asserted that anyone was referring to the Kim Davis rally as a religious gathering before this filing.
But think of the possibilities if the court buys this argument. Suddenly, loosely-defined religious grounds can be asserted as an affirmative defense to copyright infringement. The very idea of public performance licensing largely goes out the window, as one can imagine all kinds of gatherings suddenly proclaiming religiosity. Keep in mind that our government is not permitted to distinguish between the faiths, so any faith would do. Hell, one enterprising Techdirt writer such as myself might take up the mantle of L. Ron Hubbard and simply whip up a religion out of whole cloth, calling it the Fairusenalists, replacing the prayer rug, the eucharist, or the kippah with loudly-blasted recordings of Justin Bieber. Were Huckabee's argument to be accepted, who could stop us?
What is it with political campaigns issuing totally bogus takedown notices? It happens all too frequently, especially with presidential campaigns. But the latest example may be the stupidest one we've seen to date. The folks at the Lumen Database (formerly Chilling Effects) alert us to the ridiculous news that Bernie Sanders' campain issued a bogus DMCA notice to the Wikimedia Foundation, because Wikimedia Commons has hosted some Sanders' logos.
You can read the full takedown letter here, sent by a redacted lawyer at Garvey Schubert Barer, a firm that claims to have expertise in intellectual property law. If that's true, they sure don't show it in this letter. First of all, they're sending a DMCA notice, which only applies to copyright, but posting campaign logos is hardly copyright infringement. When you're talking about logos, at best you're talking trademark, but that's not an issue here either. Whether it's trademark or copyright, Wikimedia hosting campaign logos is clearly fair use. If they're really arguing copyright, then it's an easy fair use call. If it's trademark, there's no "use in commerce" on the Wikimedia side, and no likelihood of confusion. Either one is simply stupid to argue.
Separately, these are campaign logos which are advertising for the campaign. What kind of clueless lawyer thinks the right move is to demand such things get taken down?
And, then of course, there's the inevitable backlash over this. Presidential campaigns trying to censor people -- or worse, a site like Wikipedia -- is always going to backfire. It makes the campaign look thin-skinned, foolish and short-sighted.
I'm guessing that if this makes enough news, the Sanders campaign will back down on this, and say it was an overzealous lawyer or some other such thing, but there's no reason such takedowns should ever be sent in the first place.
We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.
Every year at the beginning of January, we post a story about all the works that should be entering the public domain in the US, but aren't. That's always based on a blog post from Duke's Center for the Study of the Public Domain, which is led by professor James Boyle. Every time we do this, some people seem to ask what's such a big deal about the public domain anyway, and I usually like to point such people to Boyle's own book on the subject: The Public Domain: Enclosing the Commons of the Mind.
The book is a wonderful exploration about the public domain, why it's important and how problematic it is that it's been systematically cut off and starved. And, yes, before you ask, if you want a free copy of the book that's available too (though, obviously buying a copy supports both Boyle and us (if you use our Amazon link above). Beyond being educational about the public domain, the book is very readable and entertaining as well. For some reason, people who aren't immersed in this stuff sometimes think that issues like the public domain need to be dry and boring, but much of it is really fascinating. If you don't feel like reading the whole book, but just dipping in for parts, I highly recommend Chapter 6, entitled I Got a Mashup. Though, once you read that, it hopefully will make you want to read the entire thing. I've found it one of the most useful books in showing just why the public domain is so important, and why it's so disastrous that it's been closed off for so long.
Again, the whole story is fascinating and worth reading. The researchers explain how they found the vulnerability (which basically involved setting a trap and eventually having it sprung, more or less after they'd forgotten about it), but there's a surprising tidbit all the way at the end of the article, highlighted by Chris Soghoian, in which the Kaspersky researchers admit that they're not positive the vulnerability they found is the same one described by the Russian hacker who sold his exploits to Hacking Team... thanks to copyright:
One final note: due to copyright reasons, we couldn’t check if the leaked Hacking Team archive has this exploit as well. We assume the security community which found the other zero-days in the HackingTeam leaks will also be able to check for this one.
There's been plenty of talk for years about how copyright can restrict security research. Much of that has focused on anti-circumvention provisions, such as the DMCA 1201, that makes getting around "technological protection measures" a form of copyright infringement. We've seen that issue pop up occasionally, like the time that the RIAA threatened to sue Ed Felten if he presented his research on why its SDMI DRM was broken.
Clearly, however, that's not the issue here. It's not even entirely clear what the exact copyright issue would be here, but it is worth noting that when the leak first happened, at least someone sought to take down the documents by making copyright claims. Perhaps Kaspersky's lawyers fear that even looking through the leaked documents could expose them to some sort of copyright liability.
And, given the way people fling around copyright lawsuits these days, perhaps that's not so crazy from the "limiting liability" perspective. But from the "doing security research" perspective, it's absolutely ridiculous. And, just another example of the dangerous copyright creep -- where this tool is used to stop otherwise perfectly reasonable behavior. In this case, it's not just stopping reasonable behavior, but important research that may be necessary to better protect privacy and safety.
There have been a number of copyright-related discussions spurred by the unfortunate passing of David Bowie, but here's one more that might make for an interesting law school exam. Matthew Braga, over at Vice's Motherboard, has a really wonderful story about how Bowie used a lyric writing word randomizer app called Verbasizer in writing his album Outside in the mid-1990s. He includes this clip from a documentary about it:
In short, it's a digitized version of the famed "cut up technique" that has been used by creators for decades. Bowie had previously been known to use a more traditional method of literally cutting up pieces of words on paper. But in the 90s he teamed up with Ty Roberts, who later went on to found Gracenote, to create a software version that would randomize words to create possible lyrics.
Roberts described Bowie as taking multiple word sources, from the newspaper to hand-written words, cutting them up, throwing them into a hat and then arranging the fragments on pieces of paper. He'd then cross out material that didn't fit to create lines of lyrics.
Roberts suggested he could create software for Bowie to speed up the process and did so for use on a Mac laptop. The app was called the Verbasizer and you can see it in use by Bowie in the video above in which he refers to a "friend" aka Ty Roberts. It allowed for different input methods including simply typing in words and then arranged them in columns which could be restricted to nouns, verbs, adjectives, etc. Each column could be weighted and have multiple words if desired. With a push of a button lyrics would then be created.
The Verbasizer was used in the creation of "Outside" which employed additional creative techniques for bypassing one's usual methods of artmaking that fall into patterns that are otherwise difficult to avoid. Roberts had the unique experience of observing Bowie's working methods as he went from the computer to the mic with new material sometimes in just a minute.
That's kind of cool... but it leads to a bit of a copyright question. We've already been discussing how copyright doesn't apply to works created by animals, but a much bigger fight concerns whether or not it applies to works created by computers. The official answer is no -- as with the monkey situation, copyright requires a human author. But given the rise in computer-generated content -- text, music, videos and more -- it's one that is going to show up in court.
So, then, are Bowie's lyrics copyrightable at all? It's not clear that enough is really known to make that call entirely. On the "yes, copyrightable" side of the argument, you can claim that Bowie likely fed in the original texts used for the cut ups, giving some element of human authorship. And, also, he was responsible for finally choosing which algorithmicly generated lyrics to actually use. Finally, in at least some interviews, Bowie admits that the cut up technique was often most useful in inspiring him, rather than necessarily giving him the final lyrics. That's probably enough to say he has the copyright on those lyrics. But, at the very least, it does seem open to someone challenging that. And these issues are only going to become a bigger issue as more and more works are generated by computers, with less and less human input at all. And, once again, Bowie appears to have been on the cutting edge...