Josh Hawley Introduces Laughably Stupid Copyright Term Reduction Bill

Copyright

from the it's-a-curse dept

Apparently, I never should have wished on that old monkey’s paw for copyright term reduction. One of the very reasons why Techdirt exists in the first place, and why it was started nearly 25 years ago, was to fight back against over expansive copyright laws, and, as such, we’ve spent many years and many posts arguing about the problems of excessive copyright terms. Indeed, there are few things I’ve hoped for more in these two and a half decades than for Congress to realize the dangers of excessive copyright and to move to shorten copyright terms back towards their actual constitutional underpinnings.

Almost exactly ten years ago, Republicans in Congress actually seemed to recognize that copyright terms were too long, and published a paper arguing, in a principled way, for shorter copyright terms. Of course, within 24 hours, the screaming responses from Hollywood caused the paper to be pulled, and for the author of the paper to be fired.

So… now, we’re actually seeing a bill to reduce copyright terms, coming as promised from Senator Josh Hawley, one of the most performative, least principled elected officials around. Hawley has now officially released his Copyright Clause Restoration Act and made it abundantly clear that he’s doing so to punish Disney for that company’s political speech.

Everything about this bill is ridiculous and almost certainly unconstitutional. And I say that as someone who was arguing for shorter copyrights that were more closely aligned with the Constitution since Josh Hawley was in a private boys prep school (which is funny since he so wants to present himself as a man of the common people).

So, let’s go through the bill, and discuss what actually makes sense, but also why Hawley’s attempt here is so ridiculously bound to fail. It starts out by returning copyright term to what Hawley (incorrectly) refers to as the “original term.”

(1) ORIGINAL TERM.—Notwithstanding any provision of title 17, United States Code, or any other provision of law, copyright in any work shall endure for 28 years from the date it was originally secured.

(2) EXTENSION.—The holder of a copyright under paragraph (1) shall be entitled to a renewal and extension of the copyright in the applicable work for a further term of 28 years if the holder applies for that renewal and extension during the 1-year period before the expiration of the original term of the copyright under that paragraph.

So, first off, if we’re going back to the “original term” that would be 14 years with a 14 year renewable extension possible. The US didn’t shift to a 28 year/28 year extension copyright term until the Copyright Act of 1831. Also, I mean, if we’re going back to “original” copyright thinking, the law only applied to maps, charts, and books. Hell, sound recordings weren’t even covered by federal copyright law until 1972.

Anyway, there are actually strong public policy reasons to consider returning the US to a 28 year/28 year extension copyright system. Evidence has shown a massive cost to the public of our over extended copyright law — and the constitutional underpinnings of copyright law are that it must benefit the public (not, necessarily, the copyright holder). On top of that, back when we did have a 28/28 copyright system (which we had until 1978), the vast, vast majority of copyright holders did not renew their copyrights at the 28 year mark. The one exception, by the way, was movies (which, hold that thought…).

So, there are perfectly good, principled policy reasons to push for shorter copyright. Indeed, there are economic studies that have suggested the ideal copyright term for public benefit is somewhere around 15 to 38 years. And, it seems that a perfectly reasonable way to set this up is to have extremely short copyright terms, with frequent renewal periods that grow increasingly expensive. If it’s not worth it for someone to renew, let the work go into the public domain where the public can make use of it.

Of course, there are a few problems with jumping into this approach, with a big one being that in order to do this, the US would have to immediately violate a decently large number of international treaties. However, that’s long been the excuse of those looking to extend copyrights ever longer, or pushing ever more draconian copyright laws on the rest of us. They go running to international trade negotiations and slip in something awful, and then run back to Congress, demanding that we make copyright worse to meet our “international obligations.” After all, the architect of the DMCA, Bruce Lehman, has publicly admitted that this is how he got the DMCA into law. After Congress refused to pass it, he ran to Geneva, and got an international treaty passed, then went back to Congress insisting it had to enact the DMCA to comply with our “international obligations.”

That said, the reality is that Congress is not bound by any international treaties, and can pass legislation that violates them. That doesn’t mean it won’t create some international messes, though, and that could lead to retaliation in a variety of forms.

The next section of the bill then goes even further, and into murkier legal territory, by trying to claw back copyright terms already granted, making the law retroactive:

(2) RETROACTIVE EFFECT.—

(A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall apply with respect to a copyright that, on any date on or after May 1, 2022, is owned by a person that—

(i) has a market capitalization of more than $150,000,000,000; and
(ii)(I) is classified under North American Industry Classification System code 5121 or 71; or
(II) engages in substantial activities for which a code described in subclause (I) could be assigned.

Phew. So there’s a lot to break down here. This is Hawley’s weird attempt to make it obvious to everyone that this is, effectively, a bill of attainder, and specifically designed to punish Disney. Hawley, who positions himself as a “constitutional scholar” surely knows that bills of attainder are unconstitutional. I mean, it’s right there in Article I, Section 9, Clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

A bill of attainder is defined as the legislature effectively targeting an individual, group, or company for punishment. And, I mean, Hawley didn’t shy away from making it clear that this was a bill of attainder in his press release, literally headlining it “Hawley Introduces Bill to Strip Disney of Special Copyright Protections.” That press release title is basically “hello, I am introducing a bill of attainder.” Because Disney has no “special” copyright protections. It just has copyright protections. And then literally calling out the company you are trying to punish as the reason for your bill is effectively handing them their brief to sue to stop the law as unconstitutional.

But, to really cement this home, while the bill would restrict all future copyright to a maximum of 56 years, it would strip only a small number of companies of their current copyrights. And from the text above, you can see how narrowly focused the bill is. Basically, everyone who has extremely long copyrights today can keep them unless the copyright is held to a company with a market cap over $150 billion (Disney is currently around $200 billion), and is classified in the NAICs system as being in two specific industries: 5121 for “Motion Picture and Video Industries” and 71 for “Art, Entertainment, and Recreation” which is the code that generally applies to theme park companies.

It will not surprise you to learn, of course, that Disney is in the 5121 classification and its theme park division, Walt Disney Parks and Resorts US is listed in NAICS 71.

Doing a quick search around, it appears that the retroactive nature of the bill may only apply to a very small number of companies which are in those classifications and over $150 billion in market cap. On the Hollywood studio side, you have Disney and Comcast NBCUniversal (though NBCUniversal’s primary NAICS code is listed in 5152 for “pay and specialty TV”), but clause II would likely cover it. Netflix’s primary classification is otherwise, but it would also fit.

I guess it’s possible Amazon could get covered by this as well, as it owns MGM. MGM by itself has a much smaller market cap, but Amazon has a larger one. So if you lumped them together, it could take away all of Amazon’s copyrights and… well, wouldn’t that be interesting? Viacom’s market cap is below the threshold. Arguably, Apple might be covered as well. The new Warner Bros. Discovery market cap is also way below the threshold.

So, end result, no new copyrights can last more than 56 years. Most existing copyrights remain until they were set to go into the public domain, except for the um, “woke” corporations of Disney, NBCUniversal, Netflix, Amazon and Apple. It sure looks like this is directly targeting a very small number of companies — companies that Republicans have been known to criticize heavily.

There is also the takings issue. In the past, I’ve seen (mainly copyright maximalists) argue that reducing copyright would violate “the takings clause” of the 5th Amendment. This is the part that says “nor shall private property be taken for public use, without just compensation.” In general, I have problems with this applying to copyright, because I don’t think it’s appropriate to call copyright “private property.” And, in fact, if it is then it seems that the takings clause should have been violated when we massively extended copyright with the 1976 Copyright Act, and again in 1998 with the Sonny Bono Copyright Term Extension Act. In both cases, works that were slated to reach the public domain were “taken” back and held in copyright for many more years. If that’s not a “taking” under the 5th Amendment, then shortening copyright terms shouldn’t be either.

Still, I would bet that Disney and others would claim otherwise, and they would have to fight their way through the court. And we’ve seen that this particular court (even very recently) takes a very broad understanding of the “takings clause,” to the point that it would probably need to overrule its own ruling from just last year to decide otherwise.

There is one final clause in the bill, a weak attempt to deal with cases where some of the companies listed above have copyrights that would expire under this bill, but which are still in active use being licensed. There, it includes some terms under which the license would expire over a 10 year period, effectively phasing out the copyright over that time.

(B) LICENSING.—If, as of May 1, 2022, a person is operating under a license with respect to a copyright that is subject to subparagraph (A) and that, because of the application of that subparagraph, would expire during the 10-year period beginning on May 1, 2022, that person shall continue to hold the rights contained in that license (to the exclusion of any person not granted those rights by a license before May 1, 2022) for a period that is the shorter of—

(i) 50 percent of the remaining license term, as of May 1, 2022; or
(ii) 10 years, beginning on May 1, 2022.

And, well, whatever. It’s not like this bill has a snowball’s chance in hell of going anywhere. Because it’s not actually meant to go anywhere. It’s all part of Hawley’s non-stop performative bullshit, playing to a base he believes is so stupid that they’ll lap up whatever culture war nonsense he puts in front of them. And, right now, they want their politicians to “punish” Disney, because Disney execs offered some mild criticism of Florida’s pro-bigotry bill.

Copyright terms should be reduced. Massively. But this isn’t going to do it. Nor is it actually intended to to do it. Copyright term reduction is just a convenient tool for Josh Hawley to do Josh Hawley kinds of things. Anyway, that will teach me never to wish on the old monkey’s paw for copyright term reduction ever again.

Filed Under: bill of attainder, copyright, copyright terms, josh hawley
Companies: amazon, apple, disney, nbcuniversal, netflix

Disney Is Still Trying To Avoid Paying Its Writers

Copyright

from the hollywood-accounting dept

There are all sorts of silly and made up reasons to be mad at Disney, but those shouldn’t take away from the many legitimate ways in which Disney is a terrible, awful company. For years, it was one of the most aggressive in pushing for ever expanded copyrights, and was one of the chief lobbyists pushing to extend copyright in all sorts of directions. To be honest, over the last two decades, some of the other big Hollywood/media companies have gotten even more aggressive than Disney, but Disney has certainly remained aggressively awful.

And, of course, any time someone pushes back on this aspect of Disney colonizing culture, they pull out the copyright landlord’s favorite justification: “we’re doing it for the artists.” Over and over again, we see the big TV and movie studios, the giant record labels, and the biggest publishers claiming they need to fight for ever expanded copyrights to help the actual creators — all while doing absolutely everything they possibly can to avoid paying anyone anything at all.

Even for those of us deeply aware of the nature of “Hollywood Accounting,” the story that came out late in 2020 was still stunning. The Science Fiction & Fantasy Writers of America (SFWA) kicked off a campaign on behalf of famed author Alan Dean Foster — who wrote many of the early Star Wars books. Disney had claimed that when it bought the Hollywood studio 20th Century Fox, that it only bought the assets and none of the liabilities, and therefore, Disney’s lawyers claimed, it could keep on publishing the books Foster wrote without paying any royalties.

Now, that’s quite a trick. Indeed, if you could do that, well, then it would seem to create quite a lucrative business opportunity. Sign up a bunch of creatives to publishing deals. Hell, promise them extremely high royalty rates (you’re not going to end up paying them, so who cares?), and then after the contracts are in, sell off the “assets” but not the “liabilities” of your business to a different entity, allowing them to keep publishing and you never actually have to pay any royalties. Genius! Pure evil. But, genius.

But it seems especially rich that Disney, which has spent so many decades insisting its out there fighting the good fight to support “creative artists” to be doing this. Recently, the SFWA published an update on the campaign, noting that while Disney did agree to pay some high profile authors, it is still refusing to do it for less well known authors:

You’ve paid some authors what you owed them. But there are other creators that you don’t want to talk about. And, because you did not take our advice, new creators are coming forward who are owed money, too.

You still refuse to recognize your obligations to lesser-known authors who wrote media tie-in works for Marvel, for Star Wars, for Aliens, for Predator, for Buffy: TVS, and more, universes that you’ve bought the rights to, along with the obligations to those creators. You’ve re-published their works but have failed to do even the bare necessities of contract and talent management. You’ve failed to pay these writers royalties they’re legally owed and have not given them the courtesy of royalty statements and reprint notices.

Cory Doctorow has written up an interesting post on this as well, noting how it lays bare Disney’s blatant hypocrisy:

This is shameful, and it points to the hollowness of Disney’s long-running holy war to get us all to “respect copyright.” Disney respects copyright only to the extent that it serves as a charter for corporate abuse of creators, or a means by which Disney can reach beyond its corporate walls and dictate the conduct of its competitors or other industries. When it comes to copyright as a tool for securing the rightful wages of creative workers, Disney exhibits contempt far beyond the taunts of The Pirate Bay or the insouciance of bootleg DVD hawkers in a night market.

Copyright’s power to create worker power has always been oversold, mostly by giant entertainment companies who correctly understood that the more copyright creators got, the more copyright they could expropriate through non-negotiable contracts. Copyright isn’t useless to creators, but it is also no substitute for fair contracting laws, labor organizing, and antitrust enforcement.

His article also looks at a few others ways that Disney is trying to use copyright to abuse, rather than help artists.

Of course, I was curious what organizations, that pretend to “represent the creators,” had to say about all of this, so I went to the website of CreativeFuture. Their website insists that they’re there to help “creative people.” They even have this amazingly ridiculous banner (that they apparently registered a trademark over, because why not?)

So, here’s a story where the industry is literally refusing to pay creative people what they’re contractually owed, for their creations. Surely, CreativeFuture has spoken up about this attack on the livelihoods of creators, right? I mean, the organization even set up a whole hashtag campaign, #StandCreative, to pretend it is “standing with” creators. So, surely, they’ve come out in support of Alan Dean Foster and the SFWA and all of the creators Disney is not paying, right? Right?!?

Huh. Guess not.

Instead, the top article on their website… is attacking EFF, the organization Cory Doctorow works for. Doctorow is out there advocating for artists to actually get paid, while CreativeFuture is attacking his work and pretending it actually supports creatives.

I wonder why CreativeFuture isn’t supporting these creative people? Hmm. I mean, I’m sure that CreativeFuture’s board of directors would be right there at the front of the line demanding that Disney pay the writers it owes, right? I mean, look, let’s just grab a randomly selected CreativeFuture board member and see…

So who is that? Oh, just the senior executive vice president, secretary and general counsel to the… oh…. The Walt Disney Company. Ah, well. That explains it.

Well, I’m sure some of CreativeFuture’s other board members would note his conflict of interest and stand up for the actual creators, right? Hmm. There’s Leah Weil, the General Counsel of Sony Pictures, so that’s not going to work. Oh, and the General Counsel of Warner Bros., John Rogovin, (well until just recently). Well, I’m sure this other person, Kimberly Harris will stand up for… oh, oh I see. General Counsel for NBCUniversal, you say?

Yes, yes, I’m beginning to see why CreativeFuture apparently wants nothing to do with this actual campaign to support actual creators. It might interfere with the interests of the Hollywood studios that set up CreativeFuture as a pure front group in the first place.

Filed Under: alan dean foster, copyright, pay the writer, paying creatives, supporting creators
Companies: creativefuture, disney, sfwa

Josh Hawley Threatens Disney’s ‘Special Copyright Protections’ For Being ‘Woke’

Copyright

from the hawley-shit dept

You will recall that Lauren Boebert was unsuprisingly confused about what lawmaking power she has as a lawmaker, having threatened to not “extend Micky (sic) Mouse’s trademark”, which is not a power Congress has. Josh Hawley, who has never been shy about threatening private companies over protected speech, at least has straight which law to threaten Disney with.

If you can’t read that, it says:

For years, @Disney has gotten special copyright protections from the federal government – allowing them to charge consumers more. Woke corporations shouldn’t get sweetheart deals. I’ll introduce legislation this week to end their special protections – enough is enough.

It’s not just what you do, but how and why you do it that matters. This is a perfect example. I too don’t want to see yet another extension of the current copyright term. Though, by all accounts, Disney has recognized how untenable further term extension is and hasn’t been lobbying for it at all. Ever since the public domain was allowed to return in the US, Hollywood has mostly accepted its fait regarding works from 95 years ago. But that doesn’t mean I want to live in an America where a select group of state actors can openly threaten private companies over protected speech.

Beyond that, it’s entirely unclear what legislation Hawley is proposing. Disney doesn’t have “special copyright protections”; it has the same protections as everyone else, albeit protections it specifically and heavily lobbied for. It’s unclear what Hawley is seeking to “end”.

The Walt Disney Company has lobbied multiple times to extend certain copyright protections so that their intellectual property would not fall into public domain. The Copyright Term Extension Act of 1998 extended corporate copyright protection from 75 years to 95 years, keeping Mickey Mouse under Disney’s control until at least 2024. These extensions don’t just apply to Disney, though they are the ones pushing the hardest for them.

So by all means, don’t extend copyright terms. Or, hey, even shorten them! But Hawley isn’t going to do that to one single company and he shouldn’t be allowed to do it at all on the basis of speech that he doesn’t like.

Filed Under: copyright, copyright term extension, josh hawley, retaliation
Companies: disney

Santa Ana (CA) Council Looking To Ban City Cops From Playing Copyrighted Music While Being Recorded

Copyright

from the fixing-problems-that-shouldn't-exist dept

A couple of weeks ago, a police transparency activist caught something on video: a cop trying not to get caught on video. That isn’t the interesting part. Lots of cops hate being recorded, even by their own cameras.

This Santa Ana police officer was rolling through a neighborhood — supposedly to investigate a stolen car — and blasting music from Disney movies from his cruiser’s loudspeaker. This is how cops have been rolling lately: firing up big hits from big IP holders with deep pockets in hopes of thwarting uploads or, at the very least, burying them under stacks of DMCA notices.

This move not only attracted the attention of people minding their own businesses in their houses (some emerged to complain about the volume of the music), but it also attracted the attention of city councilmember Jonathan Hernandez, who confronted the cop about his attempt to thwart a citizen’s recording.

Seconds after the music appears to abruptly turn off, a Santa Ana city councilman, Johnathan Hernandez, also asked: “What’s going on with the music here?”

The officer replied it had to do with “copyright infringement” as he pointed toward the man filming the video. Hernandez took that to mean the officer was trying to keep the video off social media.

This led to one of the very few worthwhile uses of the phrase, “Do you know who I am?”

“Do you know who I am?” Hernandez asks. The officer pauses, then says that he does recognize the city official — and his demeanor shifts.

“You’re not gonna conduct yourself like that in front of my neighbors,” Councilmember Hernandez continues. The officer apologizes to Hernandez, but Hernandez isn’t satisfied: “Apologize to him,” he says, motioning to the camera-holding YouTuber. 

I guarantee the officer knows now. The Santa Ana PD has opened an investigation into the blasting of a global media conglomerate’s copyrighted-to-fuck-and-back music to shut down an activist’s recording — something openly admitted to by the officer, who somehow has still managed to keep his name out of the (digital) papers.

Maybe they’ll name a law after this (not yet named) officer. The latest Santa Ana council meeting went into overtime. And nothing good was said about the officer who chose to turn beloved Disney tunes into a weapon against accountability.

Hernandez led off.

“This is a practice that no officer should engage in. There’s no reason to ever behave this way with members of the public, especially if you’re an officer with a badge and a gun,” said Councilman Johnathan Ryan Hernandez, who brought up the matter before his colleagues.

“The practice of utilizing music to deter members of the public from recording (police) isn’t something we’re going to allow to continue,” he added.

But he wasn’t the only one, despite being the councilmember on the scene of the stolen car “investigation” that somehow involved blasting Disney tunes at high volume for the sole (admitted) purpose of preventing activists from recording the officer’s actions and words.

There was a bit of hedging from another councilmember, but it ultimately ended in a full rebuke:

Councilman David Penaloza said that public auditors sometimes cross the line and antagonize police while recording video.  But, he added, the public has a right to film city employees while they are working for the public.

“That was one of the most embarrassing things I’ve ever seen,” Penaloza said Wednesday.

Councilmembers may be a dime a dozen (and, to the officer’s credit, it’s probably difficult to pick out councilmembers from a lineup, much less a confrontation on some random street), but there’s only one mayor. And he wasn’t happy either.

Mayor Vicente Sarmiento agreed that the more important issue is that police were actively trying to prevent the dissemination of a video capturing their work. He pointed to well-known cases of police misconduct – Rodney King and George Floyd – that became public issues only after they were captured on videos that were then widely seen by the public.

The officer has become a conduit for action, presumably not in the way he intended.

The city of Santa Ana is considering whether to ban the controversial practice of police blasting copyrighted music to prevent videos of them from being posted to social media.

Sounds great but it really isn’t. It’s pure bullshit. This should not be happening.

First, cops should be in the business of enforcing laws. Their actions should not be so far off the rails they generate new laws. That is sincerely screwed up. No city should have to implement a law to prohibit behavior cops already know is wrong and (in this case) have admitted to on camera while engaged in public disservice.

Second, this is already forbidden by Santa Ana Police Department policy.

The Santa Ana Police Department recognizes the right of persons to lawfully record members of this department who are performing their official duties. Members of this department will not prohibit or intentionally interfere with such lawful recordings.

Probably not an offense that leads to instant termination. But why not make an example of this officer? Lord knows, cops and prosecutors love to make “examples” of arrestees by seeking “life +cancer” for tiny-ass drug busts. Why not show the department you don’t condone this action by canning the officer? Maybe he gets his job back once his union gets involved, but at least you can show pissed off citizens and city reps you aren’t screwing around.

Unfortunately, this will end with this cop being the impetus for wasted tax dollars. The law doubles down on existing policy, making the law redundant. And the officer may be sued for First Amendment violations, which means the city is going to spend money defending him, even though it has already declared his actions indefensible.

The most infuriating aspect of this whole debacle is the cop will get away with it. Even if he’s fired, he’ll get his job back. Even if he can’t get his job back in Santa Ana, he’ll have no trouble finding a law enforcement job elsewhere. The public will have its tax dollars wasted pursuing a bill that does nothing more than codify existing PD policy. As much heat as this has brought down on the Santa Ana PD, it remains the only game in town. And since it’s the only game, it can still set the rules, even if it means retaining an employee who openly admitted he was trying to thwart accountability. That’s the real con here. This is not a minor offense. The cop knew what he was doing. But I guarantee he walks away from this unscathed, free to violate rights and otherwise be shitty for years and years to come.

Filed Under: california, copyright, police, santa ana
Companies: disney

It Can Always Get Dumber: Ron DeSantis Moves To Eliminate The Ridiculous Disney Exemption To His Unconstitutional Social Media Bill Because He’s Mad At Disney

Too Much Free Time

from the the-most-ridiculous-place-on-earth dept

It can always get dumber. As you’ll recall, last year Florida man governor Ron DeSantis, as part of his big push to become the new populist leader of ignorant people, pushed for a law to force social media websites to host political content they didn’t want to host. He convinced the subservient Florida Legislature to pass that bill, but not before his staff personally teamed up with lawyers from Disney to insert a buffoonish theme park exemption, that said the law didn’t apply to you if you owned a theme park in Florida. The bill’s author admitted flat out on the floor of the Florida Legislature that this was done to protect Disney from having to worry about the law.

Of course, that was back in the before times, when the GOP wanted to cater to Disney, the largest employer in Florida, and a company that is often deeply connected to that state’s politics. It was little surprise that the company was able to get that obviously, blatantly corrupt and silly carveout, because that’s how it works.

But, over the past month or so, the idiotic narrative has shifted, and now Disney is part of the latest dumb culture war, based on it coming out against a differently stupid culture war bill from DeSantis to enable parents to sue teachers for teaching anything the parents feel is inappropriate for the age of their children — a law that has no purpose other than to create a massive chilling effect in classrooms.

Leaving aside the constitutional issues with that bill, the social media bill was quickly tossed out as unconstitutional on multiple levels by a federal district court judge. Florida has appealed, and that case will be heard soon. While the judge mentioned the Disney exemption, it mattered very little to the overall analysis of why the bill was unconstitutional. It was just, shall we say, additional color. Without it, the ruling was clear, the bill would still be equally unconstitutional. However, the judge noted that the exclusion itself was problematic:

The State asserted in its brief that the [Disney exemption] provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny. The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens.

But, of course, now that Disney is no longer a “favored Florida business,” DeSantis (again, his own Legislative Affairs Director, Stephanie Kopelousos, worked with Disney and the legislature to insert — in her words — the “New Disney Language” into the bill) wants to take this benefit away.

Just so we put this all in perspective: Ron DeSantis pushed for and passed an unconstitutional social media content moderation bill, which included an equally unconstitutional carveout for Disney, to protect the largest employer in his state. The following year, because of Disney’s timid opposition to another unconstitutional bill, DeSantis now wants to remove the unconstitutional exemption to the unconstitutional bill to punish Disney for its political speech.

Can they all lose?

DeSantis has put out a proclamation seeking to have the Florida Legislature (who, remember, his office gave the Disney language to) remove the Disney language to punish them. Florida’s legislative session already wrapped up last month, but DeSantis has called them to a new special session for what appears to be a “bash Disney” special session. There are apparently some other anti-Disney proposals that he wants them to consider as well, but the key one is now to remove this exemption.

So, to be clear: Disney is a terrible company for many, many reasons (often detailed here). The social media bill is clearly unconstitutional. The Disney theme park exemption was both unconstitutional and a shameful public display not just of the corrupt level of coordination between Disney and the government, but the shamelessness with which they knew they could do that kind of meddling. The exemption shouldn’t exist. The law shouldn’t exist. The education law is equally problematic, and a full frontal attack on teachers’ autonomy in creating the best lesson plans for students.

But, deliberately attacking a company, and making legislative moves to punish that company in direct response to that company’s speech (especially political speech) is also unconstitutional retaliation. Even if the underlying move — getting rid of the exemption — is the right thing to do. What’s even more ridiculous is that by doing something like this, DeSantis hands Disney all the ammo it needs to go point out that this is retaliation for its political speech (though, in this case, they’re unlikely to bother, since the entire bill is going to be tossed out as unconstitutional anyway).

Of course, it’s quite clear that DeSantis honestly doesn’t care about what’s constitutional, or what’s right, or what’s in any of these laws. He wants to run for President in 2024, and the only way to do that is to fuel the moral outrage machine better than the last President.

And so here we are. In the most ridiculous place on earth.

And I’d rather be anywhere else.

Filed Under: 1st amendment, content moderation, culture war, education, florida, free speech, punishment, retaliation, ron desantis, social media, theme park exemption
Companies: disney

Cops Are Still Playing Copyrighted Music To Thwart Citizens Recording Their Actions

Copyright

from the pretty-sure-the-cops-don't-have-a-public-performance-license dept

Cops may have only the vaguest grasp on the laws they use to initiate stops, but they sure as hell understand copyright law. With algorithms doing the heavy lifting to prevent copyright infringement, cops have deployed a new tactic in hopes of preventing accountability activists from livestreaming or uploading their interactions with officers.

When the citizen-deployed cameras start recording, cops play recordings of their own, hoping to trigger auto-blocking of uploads and livestreams by processes designed to recognize and prevent uploads of infringing content. At the very least, officers are apparently hoping to rack up copyright strikes on activists’ accounts, pushing them closer to permabans or deletion.

This tactic hasn’t really been all that effective. If the goal is to make law enforcement officers look like thugs who believe they’re above accountability, then consider it a success. But if the goal is to prevent these recordings from going live, it has failed to accomplish that.

Unfortunately, this string of highly-publicized failures isn’t preventing cops from utilizing this bullshit anti-accountability tactic. A documented failure of success must just mean officers are due for a win. And, in this case reported by Julian Mark for the Washington Post, officers are no longer limiting their abuse of copyright law to one-to-one interactions.

It was around 11 p.m. on April 4 on a residential street in Santa Ana, Calif. — and the Disney songs blared from a police cruiser, according to a YouTube video and news reports. Police had been investigating a stolen vehicle, an officer explains in the video. But after “Un Poco Loco” from Disney’s 2017 movie “Coco” started blasting through the neighborhood, residents began asking questions.

“What’s the music for?” a woman can be heard asking in the video, explaining that she needed to sleep.

Seconds after the music appears to abruptly turn off, a Santa Ana city councilman, Johnathan Hernandez, also asked: “What’s going on with the music here?”

The officer replied it had to do with “copyright infringement” as he pointed toward the man filming the video. Hernandez took that to mean the officer was trying to keep the video off social media.

Fortunately, the intervention of this councilman ended the officer’s public performance of Disney music — something the Santa Ana PD almost certainly does not have a license for. The music was shut off. The councilman pointed out he was “embarrassed” the officer was treating his neighbors this way. The officer then apologized.

Here’s the tail end of that interaction, as captured by the man whose recording the officer was trying to shut down:

And now that officer is under investigation. Santa Ana PD Chief David Valentin says the incident is being looked into and the actions caught on YouTube tape appear to violate his expectations that officers “perform their duties with dignity and respect in the community.”

Nobody’s going to get fired for this. But it’s another failed censorship-via-copyright attempt. And you’d think that would force more officers to reconsider deploying this tactic when being filmed. But if officers aren’t expected to know the laws they’re enforcing, it’s unlikely they’re capable of learning a lesson from yet another blatant attempt to shut down citizen recordings. If cops aren’t worried about the public’s retaliation, maybe it’s time for Disney’s dozens of high-priced lawyers to start asking questions about this apparent misuse of intellectual property.

Filed Under: contentid, copyright, david valentin, police, recording police, santa ana pd
Companies: disney, youtube

Disney Gets Fans Who Made Their Own ‘Club Penguin’ Online Game Arrested Over Copyright

Copyright

from the mine-mine-mine! dept

In the pantheon of aggressive intellectual property bullies, Disney certainly would be one of the companies that would be competing to be Zeus. Disney has simply never seen an opportunity for IP enforcement that it hasn’t acted upon, be it copyright, trademark, or anywhere in between. More to the point for this post, Disney also has this fun mindset that even if it isn’t going to use an IP it owns, it doesn’t like it if anyone else does, either. On the topic of copyright specifically, this would represent a full departure from the purpose of copyright law: to encourage the creation and release of content in exchange for a temporary monopoly on that content.

Remember Club Penguin? That was the name of an online game/community, once independent, which Disney acquired in 2007 and spent the following decade running directly into the ground. The site and service, once beloved by the public, was fully shut down in 2017. Disney attempted to use the Club Penguin name by releasing a mobile app version of Club Penguin called Club Penguin Island. That mobile app was panned by Club Penguin fans and was shut down in 2018, a little over a year after its release.

But fans of the original independent Club Penguin lived on. In 2020, a group of fans released Club Penguin Online, run by fans in a completely unlicensed scenario. Disney fired off DMCA notices and got CPO taken down. To be fair to Disney, many at the time postulated that these actions were due to some extremely gross and illegal predatory behavior that was being conducted upon children on the CPO servers by some users. But to be fair to the law, that isn’t what copyright is for. There are already other laws designed to deal with such predators.

Besides, it’s 2022 and here we are all over again, with Disney working with City of London police not only to get another Club Penguin fan-run site shut down, but to actually get three individuals running it arrested.

In an emailed statement to TechCrunch, Detective Constable Daryl Fryatt from the Police Intellectual Property Crime Unit (PIPCU) at City of London Police said:

“Following a complaint under copyright law, PIPCU have seized a gaming website as part of an ongoing investigation into the site. Three people were arrested on April 12 on suspicion of distributing materials infringing copyright and searches were carried out. They have been released under investigation and to aid with the police investigation, they agreed to sign over the website to the control of PIPCU.”

Note the total lack of any accusation of racism, terrorism, or child predatory behavior in that statement. By all accounts, there doesn’t seem to be any indication here that this has anything to do with anything beyond Disney enforcing its copyright for Club Penguin. A copyright that, by the by, it has done absolutely nothing with for several years now.

In other words, Disney isn’t going to use this IP, and the public can’t use it either. So who gets to play the beloved Club Penguin in any form? Nobody, that’s who. Why? Because Disney would rather choose to enforce its copyright on a moldy piece of culture rather than let anyone else enjoy the meal.

And, we shouldn’t let the City of London police off the hook here either. Their actions have been well documented on Techdirt’s pages before. As everyone will remind you, this is not the Metropolitan Police Service in London. This is a law enforcement arm of “the City of London” which is a one-square mile chunk in the middle of London, where that police force long ago decided that it was going to become Hollywood’s personal thugs. They have a long history of overly aggressively attacking the internet, assuming everyone is a criminal. They have literally claimed that 90% of the internet is a risk to society. They’ve been able to inject “this website has been reported to the police” onto websites with no due process. They’ve arrested people on sketchy logic before. They’ve tried to argue that domain registrars are criminally liable for actions done by websites. And they’ve had some of their previous fever dream arrest cases over copyright fall apart.

Basically, they’re the police force that Hollywood has always wanted, and they’re happy to oblige, without ever recognizing that the world isn’t what they think it is, and some fans remembering a community they loved, even one owned by Disney, is not a criminal offense.

Again, this is the opposite of the intention of copyright law. Copyright wasn’t designed to refuse the public access to culture. It was designed to promote more access to culture by the public. It seems that this is yet another example of a design flaw within the law — and it’s sad that the City of London Police are so happy to abuse their power to lock people up to continue to pervert the intention of copyright law.

Filed Under: arrests, city of london police, club penguin, copyright, criminal copyright, fan site, pipcu
Companies: disney

Lauren Boebert Threatens Disney’s ‘Mickey Mouse Trademark’ Extension, Which Isn’t A Thing

Stupidity

from the mouse-in-the-house dept

This seems to be becoming a thing here in America, this desire by those in power to punish private companies for their stances and speech on controversial topics. Mike recently wrote about how this effort to exert legislative influence on private actors is one of the few bits of bi-partisanship we have these days. And, of course, how it’s absolutely the morally wrong thing to do when either of side of the aisle engages in this sort of thing. Still, I won’t pretend that it isn’t a spotlight of hypocrisy when one particular side crusades against “cancel culture” only to literally attempt to cancel specific forms of culture merely over speech their side of the political spectrum doesn’t like.

Disney has found itself in the crosshairs in this manner recently, due to its vocal opposition to Florida’s new law that governs what some teachers can teach. Florida Governor Ron DeSantis pounded many tables and shook many fists over the company deciding it had an opinion on the matter. Marsha Blackburn did likewise, making some unfortunate noises about how Disney would be punished if it tried to “interfere” in Florida, a state in which the company has many employees and assets.

And, like a deranged moth to a flame of controversy, Colorado Representative Lauren Boebert decided to weigh in herself in a manner that was unintentionally illuminating.

If you can’t read that, it says:

Next year, the woke Disney lobbyists will ask Congress to extend Micky Mouse’s trademark.

I think not.

So much to unpack in such a small tweet. The replies to her did most of the work, frankly, but three points that should be made. First, it’s “Mickey”, not “Micky”. There’s, like, an entire famous intro song for Mr. Mouse that literally spells out the name. Right, Jedi Master Luke Skywalker?

Right. Second, and this is really Techdirt territory, trademark and copyright are two massively different things. Different laws, with different purposes, that apply to different assets in different ways. It gets quite frustrating when the general public, or business leaders, don’t bother understanding the difference between the two. But Boebert is a lawmaker talking about laws of which she appears to have zero understanding. This is a threat levied by a lawmaker to not “extend” Disney’s trademark, which is not something Congress has any control over. Instead, she’s probably talking about refusing to extend copyright terms, something that Disney very much has wanted Congress to do in the past (though has shown no inclination to do again this time around).

And on that topic, thirdly, Congress should not extend copyright terms further… but not because Disney, the company, has an opinion and engages in speech about a law in a state in which it operates, has employees, and does business. That sort of thing has a name: fascism. Fascism is the authoritarian control by a limited number of powerful members of the State in a manner that suppresses opposition, criticism, and speech, including by private industry. That is what Boebert is advocating for, openly and nakedly.

So by all means, don’t extend copyright terms past their current absurd levels. But not as punishment for Disney refusing to be bigoted asshats.

Filed Under: copyright, florida, lauren boebert, mickey mouse, trademark
Companies: disney

It’s Wrong For Politicians To Announce Plans To Punish Companies For Speech, No Matter Who Does It

Politics

from the stop-it dept

I feel like I keep needing to write this, but once again, no matter who does it and no matter which company they’re targeting, it’s wrong for politicians to promise to punish companies for their speech. For some reason, many people’s position on this point changes based on whether or not they like or dislike the politician, and whether or not they like or dislike the company. But it’s wrong.

It’s wrong when Senators Ted Cruz and Mike Lee go after Major League Baseball for its speech. It’s wrong when Senator Elizabeth Warren threatens Amazon for its speech. It’s wrong when Senator Marsha Blackburn (and a ton of others) threaten Disney for its speech. It’s wrong when White House officials threaten Facebook for its speech. And it’s wrong when Rep. Ken Buck threatens Apple for its speech.

All of this is grandstanding nonsense, but it’s designed to suppress speech. It’s designed to punish companies for speech that these elected officials dislike. And that’s even if the companies have said something stupid or acted in a way that deserves a regulatory response. By positioning any response as retaliation for speech, these politicians are fundamentally going against the 1st Amendment.

Some have argued that these retaliatory threats don’t amount to an actual 1st Amendment violation because a single politician can’t pass legislation by themselves. But you don’t need to pass legislation to violate the 1st Amendment. Indeed, in Bantam Books v. Sullivan the Supreme Court noted that merely informing someone of “objectionable” speech could violate the 1st Amendment.

While not an exact match, in that case book distributors were informed by a Commission of books that the Commission felt were “objectionable”, with the vague threat that if the distribution went ahead, then some sort of legal punishment might follow. The Court not only found that this violated the 1st Amendment, but that in some ways, the mere threat was worse than if an actual censorial regulation had been put in place. Because when it’s just more vague statements there is less definition in how to appeal, and much greater likelihood of simply over-censoring.

Unfortunately, this now seems to have become the norm on both sides of the political aisle. Browbeat companies for their speech, and threaten to pass regulations (even if those regulations might make sense absent the question of retaliation) in response to the speech. This only serves to put pressure on companies to be silent — which appears to be what these politicians want.

And it is that wish for silence, and the implicit threat in response to speech, that is so problematic.

Even in the cases where you might agree with the underlying regulatory proposal, you should be against these threats because they actually make the regulatory proposals that much less likely to be effective, because companies will be able to challenge them in court as violating the 1st Amendment due to the stated threats of these grandstanding politicians.

If you believe that certain regulations are necessary to deal with certain companies, then make that case. But if you claim that companies need to be punished because of their speech or political activity, then you are a part of the problem.

Filed Under: 1st amendment, elizabeth warren, free speech, jawboning, joe biden, ken buck, mike lee, ted cruz, threats
Companies: amazon, apple, disney, facebook, mlb