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July 27, 2004

This Land

JibJab’s “This Land” presidential campaign parody has been getting a lot of attention from the news media — and, more recently, from the copyright holder in the parodied song. Larry thinks this isn’t a parody; Ernie thinks it is.

A few people have quoted this copyright notice from a songbook Guthrie sent out to fans who requested the lyrics to his songs in the 1930s:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

“This Land” was first published in printed form, it appears, in a mimeographed pamphlet Guthrie sold called Ten Songs for Two Bits. That was in 1946.

Two issues:

1. Was that language on a published copy of “This Land” before Guthrie sold the rights to Ludlow? If so, there will be a waiver argument making the “This Land” flash movie potentially noninfringing.

2. Did this mimeographed pamphlet contain proper copyright notice? Current copies of the song bear a 1956 copyright date. Was selling a mimeographed pamphlet “publication”? Did the work enter the public domain in 1946?

There might be more (or, depending on your perspective, less) to this case than the parody issue. I hope the EFF has fun with it.

July 22, 2004

Prescience

This Cole Porter work was evidently quite prescient.

Register of Copyrights Testifies on INDUCE Act

Register of Copyrights Marybeth Peters lends her strong support to the INDUCE Act in her testimony before the Judiciary Committee today. Interestingly, she quotes both the Berkman Center amicus brief in the RIAA lawsuits and Fred von Lohmann’s piece for P2P software developers on avoiding secondary liability. It’s good to see she’s paying attention to these sources, even if she comes to the wrong conclusions.

Very wrong conclusions. She seems to believe that the IICA will just leave a smoking hole in the ground where the P2P companies used to be, and will leave everyone else alone. She fails to consider the chilling effect the law will have on innovation. The hearing begins in 15 minutes; we’ll see how it goes.

July 20, 2004

Michael Robertson Upsets More IP Owners

I’m all for fair use and parody exceptions to copyright protection. I’m in favor of a broad parody exception and a narrow derivative right.

But I think, in this case, the parody defense has been stretched too far.

Michael Robertson, who has a history of upsetting IP owners, has usually kept his stunts at least arguably legal. I think MyMP3.com was a fair use; the courts didn’t. I think “Lindows” isn’t a trademark infringement on “Windows”; the court didn’t either, and Microsoft recently paid him $20 million for the trademark. I thought Robertson’s scheme to make money on the settlement between Microsoft and the State of California was brilliant but dodgy, and the court agreed, disallowing claims he submitted.

To promote the Linspire operating system — a consumer distribution of Linux formerly known as Lindows — Robertson’s company has created this music video. The soundtrack is a version of The Doors’ “Light My Fire” with the lyrics changed (“Come on, baby, Run Linspire”). The backing track is a nearly note-for-note reproduction of the Doors’. The website reproduces both the parody lyrics and the original lyrics.

Reproducing the original lyrics is the easy one; that’s a plain old copyright infringement. They reproduced the whole thing without permission, for profit, without making any commentary on or criticism of the work itself.

How about the song? I just don’t see the parodic element. Sure, it’s a funny song, but is it a parody of “Light My Fire”? What’s it saying about the song? I can’t come up with anything. If this is a parody, so is every other commercial butchery of a popular song — say, the Coca-Cola version of “Baby Love” or the Devo remake “Swiff It”. Those obviously shouldn’t be privileged uses, and neither should this.

July 19, 2004

Independent Media Institute Challenges “Fair & Balanced” Trademark

The Independent Media Institute has initiated a cancellation procedure for Trademark Registration Number 2,213,427, Fox News Channel’s trademark on the phrase “fair and balanced.” IMI alleges that the mark is (1) merely descriptive with no secondary meaning; (2) generic; and (3) deceptively misdescriptive.

Even if this goes nowhere (which is likely — the Patent and Trademark Office is, after all, part of the Executive Branch), it could force Fox News to make some embarrassing admissions, especially as to descriptiveness. To rebut this charge, they’ll have to show that, with regard to Fox News coverage, “fair and balanced” means something other than the everyday meaning of the words. In other words, they’ll have to show that “fair and balanced” means something different from “balanced and fair”, which could put them in a bit of a spot.

July 16, 2004

RIAA Blacklists P2P Companies

Reuters has this report on the blanket refusal of record companies to work with P2P software makers to monetize the P2P user base.

This is an issue that came up, not surprisingly, in the Alterantive Compensation Systems panel I moderated at the Future of Music Coalition Policy Summit this year. Adam Eisgrau, a lobbyist for Morpheus and Streamcast, asked the content industires to join with his clients to move toward a licensing deal. It now appears that his frustration with the industry’s reticence had specific causes — numerous deals, it appears, between content providers, service providers, and P2P software makers that were stopped in the face of threats from the big record companies.

The record companies do appear to be shooting themselves in the foot here. The only way to get people to move to paid services will be to partner and integrate with the free services. If Rhapsody came with each Morpheus download (as it would now if the RIAA hadn’t halted the deal), the transition between P2P and paid would be moving faster than it is now.

The record companies have an understandable reticence to sleep with the enemy, and they may be worried about waiver problems (or just looking bad) if they make deals that cause them to profit from the infringement of their own copyrights. But the transition to paid online services would be speedier — and everyone would be happier — if the companies could get over their grudges and look at the bottom line.

July 14, 2004

Today’s Toy Sensation: Bricoleur Barbie!

Hey everybody!

It’s National Barbie In A Blender Day!

July 11, 2004

Outfoxed

Today’s New York Times magazine has an article about Robert Greenwald’s new documentary about bias in Fox News Channel reporting, Outfoxed. The article touches on the question of fair use of Fox News footage in the film. The Washington Post reviews the film here and reports on Fox’s complaints about the Times article here.

Next Sunday, members of MoveOn.org will be hosting thousands of house parties to view and discuss the film. Within the next few days, you’ll be able to find a house party near you on this page, and you can order a copy of the film here.

Full disclosure: I’m proud to be a part of the team Stanford’s Center for Internet and Society that, along with attorneys at Fenwick and West, advised Greenwald about intellectual property issues surrounding the film.

July 9, 2004

DMCA As Tying Tool

A preliminary injunction was issued recently in StorageTek v. Custom Hardware. StorageTek makes big tape backup systems, Jason Schultz reports. They make a lot of money on maintenance contracts for their big tape backup systems. To perform maintenance on these systems, you have to enter a special security code, after which the machine goes into maintenance mode.

Custom Hardware wrote a program that just tried every possible security code until it found the right one. They were thus able to perform maintenance on StorageTek hardware — and since they aren’t a damnable monopolist, they charged a competitive price for it. StorageTek got mad and sued under the DMCA, alleging that the simple security code arrangement was a technological measure that controlled access to a copyrighted work — namely, the maintenance code. In a situation precisely like the one Section 117 of the Copyright Act was designed to legalize, StorageTek now alleges that the copy made in RAM of the maintenance program is an infringement.

And the judge bought it, issuing a prelimiary injunction after a finding that StorageTek is likely to succeed on the merits. I hope this won’t stand up on appeal.

Real Responds

I sent a link to this previous post to Matt Graves, the PR guy for Rhapsody, and he sent a response. He considers it only remotely possible that removals from the Rhapsody catalog are or will be the result of record-company scheming, and continues:

Sure, labels (indie or major) could tease consumers by offering music online for only a short period of time, then take it offline and make it available only at retail, but that seems like a lot of work to sell a few CDs. And taking it offline permanently could make people more angry than if you never offered it online in the first place.

I agree that it can be confusing figuring out why some albums are available for purchase but not for streaming. Right now, for example, you can purchase the Beastie Boys’ new album through our RealPlayer Music Store and through iTunes but you can’t stream it through Rhapsody. You can purchase Radiohead’s Kid A through our store, but not stream it through Rhapsody. Once in a while, the opposite can happen too: you can stream the Rolling Stones’ entire ABKCO Records catalog through Rhapsody, for example, but you can’t buy it online in digital format anywhere.

Our fervent hope is that as music subscriptions gain momentum, people in the industry (especially artists and their managers) will see and embrace the potential of the model and be more consistent in offering their music through all online media (stores and services) once they take that first leap in going digital.

He’s right that the removals, if done regularly, would upset people so much that the added CD sales wouldn’t really matter. I’m still worried that once subscription services are very widely used as replacements for CD collections, record companies may begin to see dollar signs in pulling the rights. Of course, most people buy their favorite albums on CD, and access to non-favorite albums through streaming services is pretty fungible; if I can’t listen to Jennifer Kimball on Rhapsody anymore (and I can’t), I’ll listen to The Story or Wayfaring Strangers instead (and I do).

Thanks to Matt for his quick response. It’s pretty clear that Real’s interests and consumers’ interests are aligned on this issue; if record companies pull the rug out from under the streaming services, subscribers will be unhappy and might defect to download stores or (horror of horrors) P2P.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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