Peter Friedman's Favorite Techdirt Posts Of The Week
This week’s favorites post comes from Peter Friedman, a professor at Case Western Reserve University school of law, Of Counsel to Hull McGuire PC, and the author of the excellent blog Ruling Imagination: Law and Creativity. A lot of the “favorites” posts to date have been just from people who are regular commenters on the site, but the “community” here goes beyond just those who comment, and includes people like Peter, who is one of the lawyers I regularly rely on for insights into the law.
I have my own pet peeve in our society’s obsession with property and ownership. More and more it seems people use claims of ownership to extend their desire to control as much as they can. And, of course, there are the legions of theorists who seem to always find a magic elixir for all of society’s ills in the creation of new forms of property and “free” markets for them. So I enjoyed the post about “a small antiques shop, called Obsolete, in Los Angeles against the large retailer, Restoration Hardware. The complaint? That Restoration Hardware bought some lamps from Obsolete and then made similar lamps for sale in its own stores.” The article Mike linked to in that post asked the following question:
If an independent merchant stakes his reputation to his ability to find rare and compelling pieces of design around the world, and he invests significant time and money to do, is it fair for a larger company to cherry-pick the best discoveries, manufacture lookalike reproductions and undercut the little guy on price?
It seems like a loaded question, especially when you consider the implication of considering the practice unfair: elevating the “finding of rare and compelling pieces of design” to ownership of those designs. Mike’s comeback is right on the money: “Funny, but I don’t see anything whatsoever unethical about buying nice antique lamps and then making newer, cheaper versions for sale to people who want to buy them.”
Of course, the desire to assert control appears repeatedly to anyone paying attention. As a Cleveland Cavaliers’ fan, I was amused to see that the least of the “3 Kings,” Chris Bosh, “is suing the producers of VH1’s Basketball Wives for violating his trademark, publicity rights and ‘life rights,’ because his ex-girlfriend and the mother of his child is on the show.” She apparently doesn’t say very nice things about him. In order to avoid being sued myself, therefore, I’ll refrain from any comments regarding Mr. Bosh’s teammate and former Cavalier. He can keep his life rights for himself.
But this type of grasping after whatever might be grasped goes on and on. “[T]he Tokien Estate . . . threatened author Stephen Hillard, who has written a bit of historical fiction combined with literary criticism, called Mirkwood, which uses a fictionalized JRR Tolkien as a character.” There was the one law professor who apparently believes copyright law should protect brides from having their wedding dresses “stolen.” And, finally — back to sports again — there’s the NHL’s threat to a car dealership for having posted decals on its window saying "Go Canucks Go," in cheering on the Canucks in the NHL playoffs. Apparently, the NHL’s reasoning goes, the sign constitutes a trademark infringement because it might confuse customers into believing the Vancouver hockey team endorses the dealership. I better get that Browns sticker off my bumper pronto!
A few other favorites from this past week:
The Wall Street Journal?s stab at creating its own version of Wikileaks. Oh, except for that small point about offering no protection of the anonymity of any whistleblower who leaks information to it.
As a lawyer, I love the detailed and pointed requests Mozilla sent the Department of Homeland Security in response to the request from DHS that Mozilla take down from the online list of Firefox extensions one called MAFIAAfire that negates domain seizures by automatically rerouting users to alternate domains. Lawyers often get a bad rap, and often deservedly so, but the best lawyers are willing to stand up and keep their clients from getting run over. It’s not always the most obvious thing to ask questions in response to a demand from DHS like this one: “Is Mozilla legally obligated to disable the add-on or is this request based on other reasons? If other reasons, can you please specify.”
As a lawyer too, I think it’s wise to know what others can find out about you. Mike wrote about the “details of what kind of info Facebook provides law enforcement on the receipt of a valid subpoena.” Of course, you don’t need to be the target of a criminal investigation to be subject to subpoenas. If you start a civil lawsuit or get sued, your life might become an open book. Legal policies differ across jurisdictions, and your end user agreement with any website might leave the door open regardless of the law that would operate in the absence of that agreement. Money isn’t the only price that has to be paid when you sue.
Fortunately, the opinion insofar as it addresses fair use is not binding on any courts going forward since the actual decision--no infringement--is grounded in the absence of copyright. As to the fact judges are not copyright experts: neither are they construction experts, or finance experts, or employment experts, etc. The real burden in our justice system falls on the lawyers, whose job it is to educate the lawyers. I suspect that too is one of the things that went "wrong" here on fair use--the argument that there was no copyright was so strong that the lawyers for the defendants likely did not go whole hog on the fair use arguments; doing so would only suggest their obviously winning argument might not be so obvious. That is another way of making my first point: the opinion on fair use is not binding on anyone.
contract?
Just to be clear here, Nina -- it's not that you don't like "contracts." It's that you didn't like the particular things the museum was asking you to agree to. Your original oral agreement was a contract -- in literal legal terms. A contract does not have to be written to be enforceable (except in certain transactions (principally sales of land or of goods in excess of $5000). You're absolutely right to have said no to what they were asking of you. But that's what negotiation is. It's an old truism that's true -- every negotiation starts when one side says "no."
Re: At least be consistent
@misterdog:
Funny, I'm a passionate defender of ensuring all Americans have money to have a decent life in retirement and to get medical care, but I'm the guy who Mike quotes as thinking that propertizing publicity rights is madness.
It's pure speculation that I would not have bothered broadcasting but for coming across this baseless comment, but I tend to think that the zeal to exten property rights to anything that can be monetized is far more reflective of an attitude that deifies the free market and believes our least fortunate would be better off if only government drowned in a bathtub.
Finally, just a factual note. Ray Madoff is a woman. It's a natural mistake, but I happen to have known her in college.
there are some good reasons to like the narrowness of the opinion
I wish the Supreme Court more often would do what common law courts are supposed to do -- decide the case before them without pronouncing broad rules that will constrain lower courts in a wide variety of situations that might be distinguishable in important ways from the case before them, ways that the parties before the court don't care about. In fact, good lawyers know that the broad rules that courts declare are always subject to being exceptions and modifications in later cases that raise facts that implicate issues and interests the earlier case didn't.
So I wouldn't react the way you do, Mike -- that this is a big "win) for business method patents. It's more like a foul ball. It's only a win in that the patents aren't dead for now. In stating that the law doesn't preclude business method patents, the Court isn't saying that there's a business method that's patentable. It's just not ruling out the possibility. And Stevens' concurrence I think will prove to be persuasive when it comes to lower court consideration of more business method patents.
Do you think there are any business method patents that are sufficiently different than the one rejected by the Court that might cause lower courts problems?
This makes perfect sense. A lot of individual copyright holders complain that they should not bear the burden of policing their copyright, but are they really not going to be able to find out pretty easily if there's infringing activity that's doing them genuine economic harm? And if it's not doing them genuine economic harm, would it be better to make YouTube economically unviable?
using copyrighted works for satire
Those who would criticize the use of copyrighted works for the purposes of satire as "lazy" are blind to how culture works. A successful artist's creation becomes a part of the culture and therefore has expressive powers and resonance that other artists pick up and use as a matter of typical artistic creation. So Holden Caulfield in Catcher in the Rye became for a generation a potent symbol of adolescent alienation, and to suggest that one couldn't use Holden Caulfield to speak with power to that entire generation is to remove from that generation an entire set of "words" with which they communicate effectively.
As to the justification of allowing parody but not satire (a distinction with which I plainly don't agree), the idea is that fair use always allows critique and commentary of the copyrighted work. Parody is just one kind of critique and commentary on the copyrighted work. Satire, however, is not.
judges as critics
The fine line between parody (commentary upon the appropriated work) and the use of the work to comment on others is an insane one. The recent J.D. Salinger case against publication of the Catcher in the Rye "sequel" is another example. Experts for the defendant who are major literary critics submitted testimony explaining all the ways the new work commented on the earlier one, but the judge decided that it wasn't a commentary, but, rather, merely an appropriation. The crazy thing is that there's not going to be any negative impact on the original work except to the extent the audience likes it better than any sequel Salinger may have written -- and why in the world would copyright law stifle better work? Copyright law need not stifle worse work -- the market will take care of that. So what's the loss to the creator of the original, appropriated work?
the inevitable failure of the big recording companies
What, after all, do they offer other than top-flight recording technology and the capacity to distribute music? They once owned those in other ways others could not without prohibitive amounts of money. Now, the recording technology and even better and cheaper means of distribution are available to anyone with a laptop. That's why I think their demise is inevitable.
I suppose we'll have to replace what else they did offer -- A&R and publicity, but doing those things well do not require the enormous overhead they are saddled with.
why damages are available for copyright infringement without proof of harm
If the legislature sees fit to allow damages even in the absence of proof of harm, it can do so. And Congress has done so in the Copyright Act. There is no statutory provision for damages in the absence of proof of harm for the privacy violations that are the subject of the post. Thus, the default legal rule applies: no proof of harm, no damages (or, as AC#2 has it: no harm, no foul).
why fan fiction is deemed an infringement
The reason fan fiction is generally considered infringing is because characters in and of themselves are protected by the copyright accorded the work in which they originally appear. Thus, the Catcher in the Rye "sequel," "60 Years On," which depicts Holden Caulfield at age 80, was deemed an infringement because Caulfield himself is deemed a copyrighted character. If you write a Star Trek piece of fan fiction, therefore, you would be infringing the copyright in Spock and Kirk.
"The Wind Done Gone" was permitted as a parody of "Gone with the Wind." In other words, it was permitted because it constituted a critique of and commentary upon GWTW. Since critique and commentary are, of course, crucial to the maintenance of free speech, parody is a well-recognized form of fair use.
Most fan fiction, however, is not parody. It is, instead, just an extension of the fictional worlds and characters created by the original authors.
I'm not saying that I think the fact characters can be copyrighted is a proper application of copyright law, but it is very well embedded in the existing case law. So much so, in fact, that a car ad without any dialog that had a suavely dressed man making a daring driving maneuver with a beautiful woman in the seat beside him was deemed an infringement of the copyright owned in the James Bond character. Ridiculous, but true.
more than speech is required to "assist suicide", at least in California
You make an interesting point. Here, from In re Ryan,112 Cal. Rptr. 2d 620 (Cal. Ct. App. 2001)(http://scholar.google.com/scholar_case?case=13319459493499251316&q=92+Cal.App.4th+1359+In+re+RYAN+N&hl=en&as_sdt=100000000002), is the view of the California Courts: Although on its face the statute may appear to criminalize simply giving advice or encouragement to a potential suicide, the courts have—again by analogy to the law of aiding and abetting—required something more than mere verbal solicitation of another person to commit a hypothetical act of suicide. Instead, the courts have interpreted the statute as proscribing "the direct aiding and abetting of a specific suicidal act.... Some active and intentional participation in the events leading to the suicide are required in order to establish a violation." (McCollum v. CBS, Inc. (1988) 202 Cal.App.3d 989, 1007, 249 Cal.Rptr. 187, first italics in original, second and third italics added.) Thus, in order to prove a violation of section 401 it is necessary to establish all of the following essential elements: (1) the defendant specifically intended the victim's suicide; (2) the defendant undertook some active and direct participation in bringing about the suicide, such as by furnishing the victim with the means of suicide; and, finally, (3) the victim actually committed a specific, overt act of suicide. (Ibid.; People v. Matlock (1959) 51 Cal.2d 682, 694, 336 P.2d 505; Donaldson v. Lungren, supra, 2 Cal.App.4th at p. 1625, 4 Cal. Rptr.2d 59.) 633*633 In the leading case, our Supreme Court has explained that the key to distinguishing between homicide and the crime of aiding, advising, or encouraging a suicide "is the active or passive role of the defendant in the suicide. If the defendant merely furnishes the means, he is guilty of aiding a suicide; if he actively participates in the death of the suicide victim, he is guilty of murder." (In re Joseph G., supra, 34 Cal.3d at p. 436, 194 Cal.Rptr. 163, 667 P.2d 1176.) Any statute dealing with assisted suicide as a crime less than murder "`... does not contemplate active participation by one in the overt act directly causing death. It contemplates some participation in the events leading up to the commission of the final overt act, such as furnishing the means for bringing about death,—the gun, the knife, the poison, or providing the water, for the use of the person who himself commits the act of self-murder. But where a person actually performs, or actively assists in performing, the overt act resulting in death, such as shooting or stabbing the victim, administering the poison, or holding one under water until death takes place by drowning, his act constitutes murder, and it is wholly immaterial whether this act is committed pursuant to an agreement with the victim, such as a mutual suicide pact.'" (People v. Matlock, supra, 51 Cal.2d at p. 694, 336 P.2d 505, quoting from and relying on People v. Bouse (1953) 199 Or. 676, 702-703, 264 P.2d 800, 812, overruled on other grounds in State v. Fischer (1962) 232 Or. 558, 376 P.2d 418, 421.)
Re: You can't contract to wash my car next week?
Of course you can. If you don't, you're in breach, and refunding the money I paid won't make it otherwise.
And we contract away our privacy and liberty all the time. If you don't show up and perform your employment contract, you're in breach even if your reason for doing so is to enjoy your liberty. If you sign away access to your web browsing history, you've forfeited a good amount of privacy. We're not talking forcible extraction; we're talking mutual agreement. The problem is that we treat as mutual agreement situations in which we know it's a pure fiction.
(1) Any music exec who really believes the industry did everything it could do has to be a self-deluded idiot. Honest to god, this happened: back when the Napster lawsuit was filed, I was teaching my law students about copyright and fair use. I happened to say that I thought that if I were a music exec I would put my company's entire catalog online in streaming format with a little button next to the streaming button that would allow the listener to pay for and download the song. I was no genius. Plenty of people were saying this. It was years before iTunes, though, so it wasn't self-evidently a good idea. What did my students say? They told me it was a stupid idea. I asked why. They told me that if it were smart, some music company would already have done it.
I through a fit. These people wanted to be lawyers, and they had to learn that just because people do things a certain way doesn't mean it's the smartest way.
(2) The recording industry and the publishing industry are based on their ability to pay for and control the means of creating and distributing their product. The internet has put those abilities in the reach of anyone with a laptop, so their entire material reason for being what they were is gone. And they're too stupid to recognize that.
culture as our common touchstone
Mike -- what you say is true at so many levels that it bears emphasis again and again in order to fight the knee-jerk impulse people have to identify cultural creations as "property" and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can't have a pig farm in the middle of a suburb, you can't paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. When Men at Work "quoted" "Kookabura Sits in the Old Gum Tree" in "Down Under," they were using it as a shorthand and easily understood (even unconsciously understood) reference to Australia (because Kookabura is so indisputably Australian), not as a means of exploiting the value that the original creators of Kookabura had sought to exploit. That decision is so, so wrong, and I expect it to be overturned, but it's a perfect example of the disconnect between looking at copyrighted works as THINGS and looking at them as pieces of an ever evolving culture that we use to communicate and make art out of.
I don't know if EFF would be all over it. First, I'm the one who figured these events out. I've got about 100 readers per day. Mike is one of them. 2d, the EFF would come in on the side of the person who uploaded the video, I have no idea who that person is, I have no access to that info, and he or she probably thinks ADM is right or too strong to take on.
Do you think the EFF monitors all the YouTube takedown notices? How do you think this stuff comes to the general public and the EFF's attention? It's thanks to people like Mike.
parody
If the dubbing of the ADM CEO's speech had been done so that one could really believe it was ADM's CEO, there might be an issue (though I don't know that it would be a copyright issue). But the fact is one could not have seen that video without knowing many of the words weren't her own. What she said was the kind of thing Voldemort would say in the privacy of his own lackeys if he were a CEO. And the fact that some words were synched to her lips (the original ones) and the others weren't was a giveaway too.
El Steevo and btr: thanks for concisely and accurately kicking out of the game that frivolous argument that this is nothing but a private actor suppressing speech on its own. How ADM could do it in this case without hiding behind the purported authority of the courts is utterly beyond me.
satire, parody, and criticism
Brad -- parody and satire are critical speech. They aren't separate categories subject to different fair use considerations than any other kind of speech. Parody is protected even though it appropriates almost all of the parodied work precisely because it is a commentary and criticism of that work.
abuse of the law
Michial -- you're right that the final say might not be in, but the mere fact ADM's takedown notice was complied with is a terrible abuse. It's one example of a well-known phenomenon called copyright overclaiming. If the person who posts the video doesn't challenge it because he or she doesn't know the procedure, doesn't know the strength of the reasons behind the counter-notice, or both, then the challenge won't happen and ADM will have accomplished what it wanted. And if ADM decides to sue? Who in his right mind would want to litigate against ADM? Not me -- I can't afford it, and I could represent myself. I don't run in circles of people who could afford it. The sheer economic weight of large corporations and the incredible expense of our judicial system means, inevitably, that the mere threat of litigation gets those corporations what they want regardless of whether a court would eventually rule against them in a case that was never brought (or abandoned or settled on terms favorable to the corporation before final judgment). If you want to explore the issue further, I've written this, which quotes from and links to an article by Judge Richard Posner and discusses the Stephanie Lenz case, a rare example of an individual able and willing to take on a large corporation (Universal Music). The Lenz case, by the way, is the source of the court ruling (post-dating the post the link below is to) that a company has to consider the merits of a fair use argument BEFORE sending a takedown notice. Unfortunately, to clarify a discussion yesterday, that decision, by a trial court, is only binding on courts in that federal district (the lowest level of the federal court system). It is something courts in other districts and circuits can cite and rely on, but those courts are not compelled to follow it. http://blogs.geniocity.com/friedman/2008/08/the-uses-and-abuses-of-the-differences-between-the-law-on-the-books-and-the-law-in-action-with-a-particular-emphasis-on-copyright-overclaiming/ Finally, I can't find the video -- it doesn't seem as of now the original poster has filed a counter-notice, so it looks like ADM got exactly what it wanted even though it got it through a legal claim with no merit that quashes legitimate speech.
fair use is a right!
Another point on the suggestion that fair use, because it is raised procedurally as a defense to a claim of copyright infringement (you can't sue for a declaration that what you are doing is fair use unless someone is actively threatening to stop what you're doing because it allegedly infringes a copyright): fair use is grounded in the First Amendment guarantee of free speech, and thus has at least equal (and quite arguably superior) constitutional status as does copyright. And for a vivid demonstration of why this issue is so central to our political system, not how Archers Daniel Midland is abusing the takedown procedures: http://tiny.cc/jDfG7
It is not a situation where if one trial is televised all will be. Courts can and do respond, as in this case, to the individual circumstances of each case. Quite plainly in a case in which there is a threat a witness will be murdered as a result of his testimony, protections can and are put in place. (After all, the courtroom is open to the public.) The criticism of this decision is that the Supreme Court found that the witnesses in favor of Prop 8 had a legitimate fear of such threat. That finding seems ridiculous in light of the fact that those witnesses all have been quite visible already expressing their views in the mass media.