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The Secret World of Copyright

What do Avril Lavigne cover songs, Dish Network’s AutoHop feature, celebrity sex tapes, apartment hunting websites, and ad-serving browser skinning programs have in common?

Each of them is a window into how copyright, an 18th century concept, drafted into a 20th century law, impacts the products we use and the way we experience life in a 21st century world.

The Simplest, Most Complicated Law You Know

Non-lawyers usually think of copyright as a pretty simple and intuitive area of the law, and in many ways, it’s one of the easiest areas to break down into easy, digestible (if somewhat oversimplified) terms.  What’s a copyright?  The exclusive right to control and exploit creative works.  How do you infringe a copyright?  Copy or perform a work without permission/payment, or steal it to create your own new, too-similar work.  Putting aside people’s chronic tendency to confuse copyrights and trademarks — helpful hint:  copyrights are for creative works, trademarks are for brand name, logos, and slogans — copyright is an area of law that, at least initially, the general public can intuitively “get.”

Of course, when the breakneck speed of technological development meets the languorous pace of national lawmaking, things can get a bit more complicated. For example, when the copyright infringement case against file-sharing service Grokster finally came before the Supreme Court in 2005, the Court’s nine justices required three separate opinions and the invention of an entire new theory of copyright liability to explain why Grokster was illegal, but other, less offensive services might not be illegal.  (Headline:  “Supreme Court Rules ‘Unanimously’ Against Grokster 3-3-3.”)

To be fair, though, things started getting wacky long before the Internet was invented.  For instance, most people know that any musician can cover any other musician’s song, without permission (for a small, statutorily-defined fee).  Why?  Because in 1909, Congress created a special “compulsory license” scheme to allow player piano roll makers to sell song rolls without having to separately seek permission from the original songwriters.  Somewhere along the way, some clever lawyer figured out the law was drafted broadly enough to allow for unauthorized cover songs, and now we all have to deal with Avril Lavigne defiling John Lennon’s “Imagine” in the name of Darfur relief.  (Miley Cyrus’s evisceration of Nirvana’s “Smells Like Teen Spirit” and Celine Dion’s desecration of AC/DC’s “You Shook Me All Night Long” were, to my knowledge, only ever performed live, and so we have adifferent quirk of copyright law — the proliferation of blanket “public performance” licenses  managed by performing rights organizations ASCAP and BMI — to blame for those abominations.)

Continue reading the full story . . . »

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Q&A: How Do I Get My Film Off YouTube?

Q: I created a short film in film school that I’m trying to turn into a full-length feature. I set up a website that allows people to watch the film (I’m sending potential investors there instead of handing out DVDs). A buddy just sent me a YouTube link that shows my film. After some searching, I found that a few different people have posted it. I want my site to be the only place you can go to see the film. Am I out of luck because pretty much anything can get posted on YouTube?

A: There’s a few things in life I’m obsessed with.

Whoops. Let me say that again.

There are a few things in life with which I am obsessed (I must keep up appearances): (1)Tim and Eric Awesome Show Great Job! (my mission is to keep mentioning their show in this blog until they hire me to be their lawyer or obtain a restraining order); (2) Charlie Sheen quotes (at first they were awesome, then every annoying frat guy coworker started over-using them and I no longer wanted to be associated with them, then I got tired of pretending they’re not perfect and bitchin’ so I started using them again); and (3) YouTube.

If you’ve ever read this blog, you have probably realized that I’m a little too quick to link to a YouTube video. For no apparent reason, I’ll often throw in a hyperlink to a Troll 2 clip, even though it has nothing to do with my brilliant legal analysis. I am incapable of having a lunch with friends that doesn’t end in me immediately e-mailing everyone the five YouTube clips I spent the whole lunch trying ineffectually to describe. I get downright giddy over the fact that you can find just about any weird thing you’re looking for on one site.

The fact that you can find just about anything, however, doesn’t mean that you should necessarily be able to do so. Not too long ago, every hipster college kid with a computer was “sharing” music via Napster. Now the RIAA is suing hospitalized teenagers and young teens think Napster’s founder is kinda cute in a Mickey Mouse Clubboy band sort of way. Continue reading the full story . . . »


A Case to Bring Gamers and Entrepreneurs Together

I’ve always been a fan of spotlighting important legal issues that seem to fall between the cracks. So if net neutrality is “the most important public policy you’ve probably never heard of,” and if last year’s documentary filmmaking allowance was the most important DMCA exception nobody seemed to notice, then the Ninth Circuit’s February 17, 2011 decision in MDY Industries v. Blizzard Entertainment is the most important denial of a motion for rehearing that no one is talking about — especially if, like me, you love video games, justice, and legalese-laden 48-page opinions that read kind of like Conrad’s Heart of Darkness.

The Lawsuit

Admittedly, the premise of this case is pretty ridiculous. But beneath that ridiculous premise, and the pages upon pages of legal minutia, is a pretty important and interesting legal issue that has real influence on your everyday life.

MDY Industries centers on a “bot” (short for robot) program called “Glider.” Using the Glider software allows World of Warcraft gamers to put a WoW character on autopilot, thereby avoiding the laborious chore of “leveling” the character and acquiring weapons and gold. In other words, Glider allows WoW gamers to skip the nascent stages of character development and proceed straight to the joy of being powerful and wealthy — something many WoW gamers will never actually experience in real life. Conceptually, using Glider is similar to “gold farming” — i.e., paying someone in a developing country to acquire virtual money for you. (It would be fascinating to know what effect Glider has had on the hundreds of thousands of gold farmers in the developing world.)

The legal fight began more than four years ago, when MDY preemptively sued Blizzard for a declaration of its rights after Blizzard’s counsel visited MDY founder Michael Donnelly at home in October 2006, “threatening suit unless MDY immediately ceased selling Glider and remitted all profits to Blizzard.” Naturally, Blizzard had been very unhappy about Glider and (among other things) the effect Glider was having on WoW’s virtual economy.

From Donnelly’s perspective, his company made $3.5 million by selling a legitimate aftermarket product that made WoW more enjoyable for many gamers. From Blizzard’s perspective, it not only had to spend money dealing with “bot” complaints from its users, but it also lost substantial revenues from gamers who otherwise would have spent many more billable-months in their quests to obtain virtual fame and fortune (e.g., instead of subscribing to WoW for one year, a player might only subscribe to WoW for 6 months, since the player could achieve more in less time). Continue reading the full story . . . »


Who’s Afraid of the Big Bad Privilege?

You may not know it to look at me, but I have a very macabre sense of humor. I adore the books of Edward Gorey and, in particular, The Gashlycrumb Tinies, a spot-on and (for those who are into tragic juvenile demise) hilarious parody of children’s ABC books in which each of the rhyming couplets recounts various unusual ways in which children have met ghastly fates: “A is for Amy who fell down the stairs. B is for Basil assaulted by bears. C is for Clara who wasted away. D is for Desmond thrown out of a sleigh…” (Not that I’m ever bored at work, but I’ve had a photocopy of “N” posted on my computer for years: “M is for Maud who was swept out to sea. N is for Neville who died of ennui.”)

I’m also a huge fan of Shockheaded Peter, a nightmarish and (again, for those who love young children meeting ironic fates…should my own daughter be concerned by this?) hilarious spectacle/stage production based on a 19th Century German book of children’s cautionary tales by Heinrich Hoffman, in which rude and naughty children all meet gruesome, yet well-deserved ends. Take, for example, “Fidgety Phil,” the tale of a boy who refuses to sit still at the dinner table and is impaled by cutlery when he pulls off the tablecloth at dinnertime. Or “Snip Snip,” in which an incessantly thumb-sucking boy bleeds to death after an evil tailor cuts off his thumbs (his mother reacts simply by saying toldya so!). The last line of virtually every song concludes with the matter-of fact sentiment: “And he was DEAD.” “And she DIED.” The end. You can imagine what happens in “The Dreadful Story of Harriet and the Matches”…

Well, remember the Troubling Tale of the Two-Steppin’ Toddler? No, it isn’t in the Second Act of Shockheaded Peter, but it certainly qualifies as a Litigation Cautionary Tale in my book.

This Dreadful Story — or, as it is more commonly known in legal circles, the Lenz v .Universal case — began with a dancing baby. We’ve covered this ground before, but let’s review the highlights: Continue reading the full story . . . »


To Be Judged Not By the Color of Their Skin, But By the Content of Their Legal Briefs

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

These words will be heard many times today as we celebrate the birthday of Rev. Dr. Martin Luther King, Jr. They are, of course, from King’s famous 1963 “I Have a Dream” speech. But as you celebrate his life and listen to his words, ask yourself this question: have you ever heard the whole speech? Not just the key excerpts that will be repeatedly broadcast today on the news, but the entire, seventeen-minute address as it was given to a crowd of 200,000 in front of the Lincoln Memorial?

Ever wonder why it’s not shown on TV more often?

The answer, my friends, is copyright. Because while Dr. King may have dreamed of a world without racism, even he wouldn’t dare to dream of a world without lawsuits.

Yes, in addition to being a noted clergyman and civil rights leader, Dr. King was a copyright litigant. Continue reading the full story . . . »


The Doctrine Formerly Known as Fair Use

There’s been a new development in the Troubling Tale of the Two-Steppin’ Toddler — or, as it is more commonly known in legal circles, the Lenz v .Universal case. Our regular readers are familiar with the facts: back in 2007, loving mom Stephanie Lenz posted a 29-second YouTube clip of her adorable tot dancing, with Prince’s “Let’s Go Crazy” blaring in the background (I actually think he’s just running around the kitchen pushing a Fisher Price walker, but I’m no Carrie Ann Inaba). A few months later, Universal Music had the video removed, claiming copyright infringement. Lenz fought back (Hell hath no fury like a mother scorned), claiming fair use of the copyright, and filed suit in the U.S. District Court for the Northern District of California for misrepresentation of a DMCA claim. Since then, Mega-Mom has scored several victories, surviving a motion to dismiss in 2008 and knocking out certain of Universal’s affirmative defenses earlier this year. Continue reading the full story . . . »