Intelligentsia Round-Up – Fair Use

Intelligentsia Round-Up - Fair Use

Fair Use by Google Books? Fair Use by GoldieBlox? Is copyright law being turned on its already-spinning head? Music Intelligentsia presents the commentary of 10 highly regarded experts regarding this important and controversial issue.

For quick reference, please use the links below to go directly to a particular commentary.

 

The question:

“In his November 14,2013 Author’s Guild v. Google Books case ruling: U.S. Circuit Judge Denny Chin ruled in favor of the Google digital book-scanning program, citing “fair use” under copyright law.

Chin wrote that “In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.”

Meanwhile, the children’s toy company Goldieblox filed suit on November 22 against the well-known songwriter/recording artists known as The Beastie Boys, arguing that use of a parody of the band’s song “Girls” in a commercial advertisement for the company’s “anti-gender stereotype” line of toys constitutes fair use for which no license is needed and no royalties need be paid. It is the policy of The Beastie Boys never to grant such licenses.

Do you agree that the decision in Google Books and the arguments of Goldieblox to further expand the fair use doctrine are sound, and what do you believe are the implications that such an expansion holds for the future?”

Dennis Dreith (Music Composer, Orchestrator, Advocate)

The area of Fair Use is an especially complicated and misunderstood area of copyright law, and one that tries to both balance the public good and protect the rights of the content creator. I generally draw the line when commercial exploitation comes into play. The case can also be made that certain commercial endeavors such as a documentary film may in some circumstances be so substantially for the public good that it would also fall under Fair Use. Had the Beasty Boys music been used solely in a product “primarily” intended for educational purposes, I would agree that Fair Use should apply. While I would agree that “Google Books provides significant public benefit…” I don’t believe the fact can be overlooked that what is really at issue here is whether or not Google should be allowed to use a piece of music to sell a product (any product), not whether or not the product itself benefits the public good. If Google wants to use someone else’s music to sell a product, they should pay for it.

In addition to his career as an active film, television and jingle composer (The Punisher, Mobsters, The Shadow, Columbo), Dennis Dreith has orchestrated and /or conducted scores for such pictures as Misery, Addams Family, Heart and Souls and A League of Their Own providing services for John Williams, LaloSchriffrin, Dominick Frontiere, Marc Shaiman, Hans Zimmer, EliottGoldenthal, Mark Ishamand Cliff Eidelman. In addition Mr. Dreith has served as Music Supervisor and Music Consultant on numerous projects, and has composed works for the concert stage.

He Served as International President of the Recording Musicians’ Association (RMA), for more than 18 years, and actively participated in every major electronic media agreement negotiated by the American Federation of Musicians. Mr. Dreith has also been an energetic advocate for legislative issues affecting the entertainment industry, and addressed the House Sub-committee on Intellectual Properties in support of Digital Performers Rights legislation that was signed into law by President Clinton in November of 1995.

Mr. Dreith is currently the Chief Executive Officer of the Film Musicians Secondary Markets Fund as well as the Independent Administrator of the AFM & SAG-AFTRA Intellectual Property Rights Distribution Fund.

Mr. Dreith is a frequent panelist for music industry seminars and has often been a guest lecturer at a number of universities and speaker at a variety of music education and related conferences. In addition, he is a former member of the faculty at UCLA Extension as well as a past member of the UCLA Advisory Board to the Department of Entertainment Studies and Performing Arts.

www.raroyalties.org
www.dennisdreith.com

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Amanda Harcourt (International IP Consultant)

There is Nothing Like a Claim
Goldieblox, Girls, Google and Global Culture

Recent reports [30 November 2013] indicate that US toy company, GoldieBlox, has withdrawn its toy advertisement in its original form and replaced the unlicensed Beastie Boys’ track, Girls, with a different song. Goldieblox are apparently asserting that this replacement is in deference to Adam Yauch’s testamentary wish that no songs be used in advertisements. However, GoldieBlox’s CEO, Debbie Sterling, insists in her open letter to the band that its original use in the ad constituted fair use. It seems the two sides won’t be slugging it out in court any time soon. Instead they can perhaps take some pecuniary comfort from the attention both their creations will receive as a result of the fracas. Goldieblox, one assumes, will be rewarded more handsomely in the pre-Christmas toy-buying frenzy than the Beastie Boys will, considering the nugatory values afforded online music these days.

In this situation the parties bump up against the modern problem of domestic legislation in a global marketplace. Whether the original GoldieBlox advertisement constituted fair use would be considered differently in the USA from the way the usage would be treated in jurisdictions east of Pochnoi Island, in Alaska.

My understanding of the US fair use doctrine is that it is a fluid creation much debated in the courts. Outside the USA its non-US equivalent, fair dealing, is still debated but from a different perspective. Exceptions to copyright infringement (or fair dealing) are contained in a closed list of activities in the UK’s Copyright Designs and Patents Act 1988. The European Union’s Information Society Directive offers up a similarly closed list of exceptions to the Distribution Right outlined in its Article 4. In both instances such exceptions include non-commercial research and private study, criticism and review, news reporting and to facilitate access to works for the disabled. There is also a requirement for acknowledgement and “fair compensation” in some circumstances.

It is only Goldieblox that asserts their use of the song qualifies as fair use under US law. Yet, weirdly both sides in the debate are using the word “parody”. In the dictionaries I consulted, after they identify the burlesque or ridiculous aspect of parody, the term is defined in terms qualified by such phrases as “allusive imitation” or “in which the characteristic turns of thought or phrase………more or less closely modelled on the original”. So parody is not a direct copy. The word derives from the Greek for beside or subsidiary relation; in Greek drama an entrance from the side by the chorus of the orchestra. So a parody should have an oblique relationship to that of the original. It would be difficult to sustain a parody defence if any substantial part of the original is directly copied.

And here for the purposes of the music industry, the difference between UK and US law as it applies to songs is important. A popular song or musical work in the USA is identified in the US Act at s 102 (a) (2) as “including any accompanying words”. Not so outside the USA. Under English and Irish law (for our present purposes) a song has two component parts, the music and lyric and they are characterised separately as a distinct musical work and a distinct literary work. Where all four writers co-write a song where, in the words of the statute “the contributions of each author or authors is not distinct from that of the other author or authors” the music and the lyrics will both be works of joint authorship. This is the case for “One” written by all four members of U2.

However, where there are different authors for each part of a song as in the case for Andy Hill (music) and Peter Sinfield (lyrics) in the Celine Dion hit “Think Twice”, there are two sole authors of two separate copyright works. Two authors (in another shameless name check for local talent) such as Sir Elton John (music) and Gary Osborne (lyrics) for the hit “Blue Eyes” will be treated as sole authors of independent copyright works in some circumstances. But the song will not fall into the public domain until 70 years from the death of the last surviving author – the two being bolted together in a grisly equation for the purposes of duration of protection.

No statutory rules as to parody exist under English law but the courts have considered it in relation to the infringing act of copying a copyright work. In doing so, members of the judiciary have delivered some memorable comments about parody, including a music-related gem from Mr Justice Baker in 1987. The case, as in this instance, also involved music used in an advertisement where a television ad for a bus company sought to claim parody in the use of both music and lyrics of Rogers’ and Hammerstein’s “There is nothing Like a Dame” (incidentally a sentiment with which this author can concur without reservation). As Motorhead’s “Eat the Rich” wowed American fans Mr Justice Baker, in quoting an earlier parody case involving HRH the Duke of Edinburgh, was commentingd “[a]t the time [1960!] there was, and still is for all I know, a form of music known as rock and roll”[1] . Decision aside, who can fail to be charmed? But I digress.

In determining infringement by copying the test of substantiality will be applied. What constitutes a substantial taking of another’s copyright work is a test of quality not quantity. A few bars of music can be a substantial part of a musical melody and thus an infringement by unauthorised copying. From reports it seems pretty clear that Goldieblox simply set new (original) words to the whole of the pre-existing music (a copyright musical work in its own right outside the USA) thus copying that copyright musical work into their ad, and making it available to the public.

The Beastie Boys are right to feel aggrieved at what many will see as an infringement – regardless of the question of the expressed wishes of the late Adam Yauch. Or indeed regardless of whether, in the useful (for Google) words of Judge Chin in last month’s judgement in Authors Guild v. Google Books, the use by Goldieblox involved “the direct commercialization of copyrighted Works”.

In a famous quote from early in the 20th century on the question of copying, Mr Justice Petersen tells us “what is worth copying is prima facie worth protecting[2]”. Or, in the case of the Goldieblox’s use of the Beastie Boys’ work – what is worth taking is worth applying for a licence for and, if granted, paying for it!

The US fair use debate and the recent decision by Judge Chin in Authors’ Guild v Google Books is a much bigger subject than girls and boys and their toys and there are many better qualified than I to speak to the nuances of the US fair use doctrine. Furthermore, while I must admit grudging respect at the tactics of Google’s lawyers in having first hit at the fighting weight of the plaintiffs by successfully overturning Judge Chin’s certification of class action status, I have difficulty being temperate at the outcome of the case. So, what I propose instead to consider is the policy question that we all must ask eventually.

If creators are to continue to create they will want, not unreasonably, to be able to live upon the fruits of their labours – or at least expect those fruits to make some contribution to the cost of living. I am less sympathetic to the expectations of entertainment corporations’ executives and shareholders to live on the fruits of their share options and dividends arising from the creators’ labours – but that is a diatribe for another day.

The US Constitution identifies a twin purpose in granting copyright protection to creative endeavour – the promotion of the progress of the arts and science (the latter being so helpfully relied upon by Google in their own patent filings) and securing to authors a right to their works. The Berne Convention signatories were similarly “animated by the desire to protect…..the rights of authors and their literary and artistic works”. Perhaps the question is not “how far should fair use go?” Perhaps we should approach this debate more obliquely – dare I say, from the side, as a true Greek parody.

We have to acknowledge that the economics of the online dissemination of music and language, of film, of art and photography have suffered seismically at the hands of those two little digits – the ones and the zeros. And if we are moving towards a world where the largely unremunerated digital dissemination of creators’ works is to become the norm, what is the world going to be like when the crapshoot of patronage replaces fair remuneration. What will the world be like when a writer or photographer or composer cannot make a decent living because nobody needs to spend much or indeed anything at all to enjoy their work?

In the past what we spent our money upon was the containers that carried the ideas and inspiration to the audience (eg CDs, hardback books etc) as opposed to spending it upon the ideas within – or at least that is what the digital dissemination economists tell us.

Finnish recording artist, AnssiKela, recently released his streaming earnings from one song, Levotontyttö(Troubled Girl). What troubled this particular girl was the revelation that Anssi’s earnings per stream were 11 times higher from a paying subscriber than those generated by someone using the same music service but accessing via an ad supported subscriber model (ie a free user)!

So, who is it, exactly, that has a broken business model: the music industry or the digital music services? One imagines Goldieblox’s toys will cost more in Bergdorf Goodman than in Walmart – yet Goldieblox is likely to have been paid roughly the same price for the toys by the buyers from each of the stores.

Recently a leading literary agent asked me to answer a question currently being posed in book circles. Question: What do you spend on culture; what do you spend on, say, a book?

The answer was curious. “I spend around 4 minutes on a song, and I can do the ironing at the same time. I spend half an hour on a painting (if it’s any good). I spend 2 hours or more on a movie and can devote between 3 hours and a week on a good book!” It strikes me that this may be a more useful question to ask in determining how we value what our writers and our artists, our musicians, composers and filmmakers create. After all, as Goldieblox presumably knows, the customer is always right.

© Amanda Harcourt 2013
[1]Williamson Music v Pearson Partnership [1987] F.S.R, 97
[2]University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601

Amanda Harcourt has run a boutique IP consultancy in the United Kingdom (with occasional interruptions) for over 20 years. Since she led the global enquiry into U2’s collecting society royalty earnings in the early 1990s her professional focus has largely been upon the rights and revenues of the creative community. She advises in Europe and North America, working for writers, composers, performers, painters, filmmakers and collecting societies (the last bastion of creator influence in an increasingly inclement marketplace). She does not need a website.

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Casey Rae (Interim Executive Director, Future of Music Coalition)

There are a great number of artists and rightsholders who understand the importance of fair use as a limited exception in copyright law, because fair use is part of what allows them—in certain specific instances—to utilize aspects of existing expression in new works. Likewise, fair use can be seen as part of America’s free speech traditions, as it allows for the kind of criticism and commentary that is integral to a democratic society. However, it is important to note that fair use does not give free reign to just take someone else’s expression. Artists and copyright owners are granted limited-time, exclusive rights under the law because in part because these rights incentivize the creation of new works, from which the public derives benefit.

The Google books case is interesting, and remains to be seen whether the precedent established will extend to other sectors. It’s not difficult to understand the reasoning behind the decision to allow Google to make use of excerpts of published works, and in some ways, there may be a benefit to rightsholders, provided there is a means to legally obtain the work in question. Whether rightsholders should have the ability to control all aspects of a work is a very controversial topic. Still, it is one in which the courts have an established process for making determinations on a case-by-case basis, as intended by Congress. Sometimes it works out for one party, sometimes it doesn’t.

The controversy around the GoldieBlox use of the Beastie Boys song “Girls” is quite a bit different. People are sometimes shocked to learn that an artist-rightsholder isn’t always able to deny a use, as we do not have a “moral right” in the United States. However, the Beastie Boys have clearly stipulated that they do not want their music used in commercial advertising, which the GoldieBlox viral video clearly is. The law is somewhat conflicted with regard to the ability of a work to be used in such a way—the most analogous music-world ruling states that advertising is a “lesser indulgence” than should be afforded other commercial uses (like selling CDs featuring a portion of an existing work). So that puts the Beastie Boys on much firmer ground. However, there is another case in which a popular photograph was parodied to advertise a movie, and this was ultimately deemed fair. We’ll likely never know how the courts would come down, as GoldieBlox has pulled the music from its ad. To me, the strangest thing about the case was procedural: GoldieBlox asked for a judgement, when typically fair use is invoked as a defense against an infringement claim. That move can certainly be seen as provocative.

There are people who are advocating for the expansion of fair use. I am not one of them. In fact, I think that many of our issues around licensing and access can be addressed through better business practices and more functional informational databases. However, I recognize and appreciate the courts’ authority to make determinations of fair use on a case-by-case basis. Fair use is an imprecise, but nonetheless legitimate, part of our copyright law, and it’s important to remember that it also protects creators and rightsholders. There will always be a tension between copyright and free expression, but this tension also helps move culture and creativity forward.

Casey Rae
Interim Executive Director, Future of Music Coalition
http://futureofmusic.org/

Casey Rae is a musician, recording engineer, educator, journalist and media pundit. Casey regularly speaks on issues such as new business models for artists, telecommunications policy and intellectual property at conferences, universities and in the media. He routinely works alongside leaders in the music, arts and performance sectors to bolster understanding of and engagement in key policy and technology issues, and has written dozens of articles on the impact of technology on the creative community. Casey is an adjunct professor at Georgetown University, and also serves on the Board of Directors of the Media & Democracy Coalition and the National Alliance for Media Arts and Culture. He currently records and publishes under the moniker The Contrarian and is the Grand Poobah of Lux Eterna Records.

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Charles J. Sanders (Outside General Counsel To The Songwriters Guild Of America, Inc.)

The expansion of the Fair Use Doctrine far beyond the limits of free speech rationality should be alarming –not only to the creators whose works are being utilized without permission or remuneration– but to the general public, which has benefited from a healthy, professional class of creators in the United States since the implementation of modern copyright protections over a century ago. The disappearance of that professional class, with the weakening of copyright protections and enforcement and the sprawl of the Fair Use Doctrine at every level, will inevitably prove extremely detrimental to both American culture and to democratic discourse.

There is no question that the Fair Use Doctrine serves a crucial purpose in supporting the “marketplace of ideas” goals that underlie the speech and press clauses of the First Amendment. There is likewise little disagreement that Judge Pierre Leval’s formulation of the “transformative” test decades ago as an aid in deciding whether the “purpose and character” of an unlicensed use of a copyrighted work is fair, represented a step forward in clarifying the fair use analysis that every court is expected to perform under the US Copyright Act.

The development of the “transformative” doctrine, however, has recently taken a severely wrong turn. The Fair Use Doctrine’s aim is to balance the rights of the creator with the public benefit of open discourse on matters of public concern by and among citizens. It is NOT intended to act as a device to safeguard corporate entities from paying for the rights to use copyrighted works in the furtherance of their commercial objectives, especially in the context of commercial advertising. To claim otherwise is to stand the Fair Use Doctrine on its head, effectively transforming it into a corporate “Unfair Use” standard, even in the face of the explicit Congressional warning against the expansion of commercial fair use within the Copyright Act.

It is indeed gratifying to know that the Goldieblox corporation, at least, has finally backed off of its outrageous claim that since its unlicensed use of a musical work is intended as a transformative parody, it can use that work without permission or payment to the creator in an advertisement for its toy products. It is long past time for Google to likewise step up and start paying for use of the creative works in the databases that support its stock price, as well.

If Google and its allies want to discuss an opt-in system of compulsory licenses for copyrighted works that serves both the public good through increased discourse, and benefits creators through truly fair remuneration (that is, a living wage for actual use of their works), then let’s start that dialog immediately. But James Madison, who well understood the necessity of both free speech and copyright protection as complimentary parts of the engine of free expression, would tell us that throwing out effective copyright protection in favor of a broad notion of corporate welfare is a very, very bad idea. One Citizens United decision is enough.

Charles J. Sanders has served as outside general counsel to the Songwriters Guild of America, Inc. since 2005. He previously served as in-house counsel to the National Music Publishers’ Association, Inc for two decades, and has been an adjunct professor at New York University since 1993. He is also a member of the bars of New York, California, and Washington, DC, and co-founder of and counsel to the freedom of information organization known as The James Madison Project, Inc.

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Ted Sabety (Intellectual Property Attorney)

I don’t think Judge Chin expanded the scope of fair use very much at all. The opinion is highly-fact specific and therefore its precedential value somewhat limited. In addition, it really rests on Judge Baer’s 2012 opinion in Author’s Guild v. Hathitrust, which broke the ground on the Google books project. We can’t forget that copyright does not protect facts, so the location of a phrase in a book is a fact not itself subject to copyright. In addition, Judge Baer’s opinion cites the American with Disabilities Act that provides a statutory permission for libraries to convert books into formats for “print disabled” readers, which presumably includes braille and audio. So I don’t think Judge Chin’s conclusion regarding the use of the books to create the index or audio versions for print disabled library patrons pushes the envelope of fair use.

But consider the display of text “snippets” of a book presented by a search result, which was ruled by Judge Chin as fair use. This fact was not present in the Hathittrust case. Judge Chin went to some length to conclude that the snippets, which were subject to various limitations recited in the opinion, did not displace actual sales of the books. But that may not apply in every factual context. For example, consider a music service that uses signal processing of digital music files to create an index that can locate all I IV V chord progressions in rock music. If that service permits a user to select a search result and hear 10 seconds of music that plays that chord progression and applies the same here restrictions as those for the Google book snippets, is that fair use under this opinion? This is a tougher case because there is a market for music clips, e.g. ring tones, which was a fact absent from the Perfect 10 case (no market for thumbnail images). It would appear that if you could load that search result into a phone as a ring-tone, this is not fair use. But otherwise? Its not clear, so maybe here Judge Chin pushed the envelope of fair use further out.

Comments by Ted Sabety on Google Books opinion. © 2013

Ted Sabety is principal of Sabety +associates, a law firm in New York City that advises technology and electronic media clients on a range of intellectual property issues. Ted has advised various music industry clients in the area of digital music distribution and worked on the plaintiff side of the Napster case back in the day. Find out more at www.sabety.net.

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Chris Castle (Music Attorney)

Organizing the World’s Information Whether the World Likes It Or Not: Fair Use for the 1% After Google Books
By Chris Castle

Americans are freedom loving people, and nothing says freedom like getting away with it.

From “Long, Long Time” by Guy Forsyth

Google Books: Fair Use for the 1%

Google dealt creators a serious blow in the last few weeks. In a bizarre ruling sought by Google on fair use in the Google Books case, a New York federal district court essentially decided that after years and years of litigation, authors could not sue Google as a class. According to Business Week:

Google attorney DaralynDurie told Judge Denny Chin in federal court in Manhattan that authors and photographers would be better off fending for themselves because their circumstances varied widely, especially since the copyright issue for authors involves the display of small snippets of text.

Yes, Google told Judge Denny Chin that after eight years of litigation during which the countries of Canada, France and Germany filed opposition briefs to protect their authors (and even the U.S. Department of Justice had the temerity to tepidly challenge Administration buddies Google), it was only fair to authors that they should not be able to sue Google as a class.

Judge Chin then ruled that scanning millions of books without permission was a “fair use” because in the years since the start of the litigation Google had scanned so many books and had relationships with libraries. The message being if you’re going to infringe, do it a lot, and if you can find some crackpot librarians to go along with you, even better. (Canadian author and Writers Union of Canada president John Degen sensibly suggests that Judge Chin actually committed the classic “post hoc” logical fallacy in his decision.)

Academic response to the Google Books project has been mixed at best, notwithstanding Judge Chin’s glittering generalities. Berkeley Professor Geoffrey Nunberg’s article, “Google’s Book Search: A Disaster for Scholars” illustrates a couple of problems of the monopoly of one that Judge Chin seemed to want to overlook:

Google’s book search is clearly on track to becoming the world’s largest digital library. No less important, it is also almost certain to be the last one. Google’s [8] year head start and its relationships with libraries and publishers give it an effective monopoly: No competitor will be able to come after it on the same scale.

Nor is technology going to lower the cost of entry. Scanning will always be an expensive, labor-intensive project. Of course, 50 or 100 years from now control of the collection may pass from Google to somebody else—Elsevier, Unesco, Wal-Mart. But it’s safe to assume that the digitized books that scholars will be working with then will be the very same ones that are sitting on Google’s servers today, augmented by the millions of titles published in the interim.

Judge Chin may be impressed with the virtues of one monopolist having a monopoly on “the world’s largest digital library” as a justification for his fair use ruling, but what about Google’s horrendous record on user privacy, complicity in the spy agency scandals, and sharp treatment of artists of all stripes suggests that they come to the fair use defense with clean hands?

So if the authors say no, why does Google send in their thuggish lawyers to force authors to submit? The authors of the books at issue clearly do not trust them—I suppose it is theoretically possible to have devised a more rancid method of alienating every living writer on the planet and the heirs of the dead—all at the same time—but I can’t think of what it would be. Who can forget the “Heidelberg Appeal” when 1,300 German authors like a contemporary Luther nailed their protest against Google Books to the doors of German President Horst Köhler, Chancellor Angela Merkel and the heads of Germany’s 16 federal states.

Self Serving Mistakes in the Metadata?

Professor Nunberg has noted one of the serious failures of Google Books that directly calls into question the very failing that Judge Chin trumpets as virtue: The metadata stinks.

Start with publication dates. To take Google’s word for it, 1899 was a literary annus mirabilis, which saw the publication of Raymond Chandler’s Killer in the Rain, The Portable Dorothy Parker, André Malraux’s La Condition Humaine, Stephen King’s Christine, The Complete Shorter Fiction of Virginia Woolf, Raymond Williams’s Culture and Society 1780-1950, and Robert Shelton’s biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899 comes up so often, such misdatings are spread out across the centuries. A book on Peter F. Drucker is dated 1905, four years before the management consultant was even born; a book of Virginia Woolf’s letters is dated 1900, when she would have been 8 years old. Tom Wolfe’s Bonfire of the Vanities is dated 1888, and an edition of Henry James’s What Maisie Knew is dated 1848.

Remember that there have been some serious discussions of Google taking on the role of database to copyright agencies around the world (perhaps even our own). Now think about Professor Nunberg’s criticism of copyright dates, which he found to be rampant in the “library”. And notice that Google’s mistakes always seemed to make in-copyright works older—much older—and therefore more likely to be in the public domain…which helps who, exactly?

Before you think that this has nothing to do with songwriters or the music business, or nothing to do with film makers and the movie business, think again. Aside from the fact that sheet music and screenplays are included in the “library”, Google has demonstrated a willingness do the same to all creators—for starters, there’s not that much difference between Google Books and YouTube. If you think I’m overstating it, consider this sarcastic quotation (or perhaps telling slip) by one of Google’s lead outside litigators speaking at this year’s SXSW: “It’s really important that we protect the rights of really good looking people in this society.” (Attorney Andrew Bridges of Fenwick & West.) Clearly, the only rights that interest Google are their own.

But Google’s mass misappropriation of the authors’ rights of publicity and the clear implied endorsement of the Google Books mass digitization turns on one thing—Google had the money to create the pile of works—a number of other companies had investigated but abandoned the idea in part because it seemed improper. Google also devoted its massive wealth to litigate authors into the ground because it is that important to them to defeat the rights of creators in general in their quest to commoditize the world’s information–be it your Google+ pictures or Jack Kerouac. (And with librarians leading the charge as weird as that may sound. If you doubt me, engage your librarian or your child’s librarian on the subject of copyright and see how long it is before you feel the need to call for an exorcist.)

Jack Kerouac and the T-Shirt Economy

Judge Chin’s ruling comes down to one “principle”, a message that will ring loud and clear across Silicon Valley (reinforcing what they already believe): Might makes right. And when it comes to fair use for the 1%, nothing says Internet freedom like getting away with it.

Except this time, Standard Oil 2.0 really gets away with it. While every generation of creators expects to fight The Man, Silicon Valley presents The Man 2.0. The Man 2.0 takes Standard Oil’s worst tricks to new lows and performs them at scale.

As antitrust scholar Jim Delong noted presciently in his article Google the Destroyer:

In most circumstances, the commoditizer’s goal is restrained by knowledge that enough money must be left in the system to support the creation of the complements….

Google is in a different position. Its major complements already exist, and it need not worry in the short term about continuing the flow. For content, we have decades of music and movies that can be digitized and then distributed, with advertising attached. A wealth of other works await digitizing – books, maps, visual arts, and so on. If these run out, Google and other Internet companies have hit on the concept of user-generated content and social networks, in which the users are sold to each other, with yet more advertising attached.

So, on the whole, Google can continue to do well even if it leaves providers of its complements gasping like fish on a beach.

If Jack Kerouac wrote in the Google Books world, would he give away the books and get a Levis sponsorship? Where is this generation’s literary hero, a Lawrence Ferlinghetti 2.0? If he’s like most small publishers, he’s gasping like a fish on the beach.

What Hath Google Wrought: Shut Up And Sing

Might makes right also rings loud and clear in the recent GoldieBlox “shut up and sing” litigation against the Beastie Boys. If you don’t know the GoldieBlox story, the company is a toy company founded by a Stanford grad who spoke at TED and whose crowd funded company specializes in toys that empower young women through encouraging them to think of careers in science and engineering.

Yes, groovier than thou. (A tone that saturates the Google Books ruling.)

Parody? What Parody?

GoldieBlox produced a clever commercial for their toys that showed young women using the toy–“GoldieBlox” (itself a play on the Robert Southey children’s story, “Goldilocks” and a registered trademark of Goldieblox, Inc.). Apparently as an afterthought according to the timeline in the commercial production company’s blog , the commercial producer added a re-record of the Beastie Boys’ song “Girls”:

“And we would add key details in Post: Beau’s inspired re-writing of an old, misogynistic Beastie Boys tune, “Girls” would add narrative drive [i.e., contributed to an idea that was already present without using the Beastie Boys] as we assembled the piece, and our resident geniuses at Pico Sound would augment the action with chain-reactive sound design…[wait–didn’t the lawyers say it was a targeted parody of Beastie Boys all along? Shouldn’t the video’s story line have added to the parody?] “ (emphasis mine)

Did they get a license? Did they even try? No, no. GoldieBlox’s blatantly commercial use was protected by fair use, you see—just like Google Books. Even though the creative direction of the GoldieBlox viral video—which is the subject of their strategically filed lawsuit—apparently had nothing to do with the Beastie Boys according to the commercial producers, so is unlikely to have been the parody’s target. The “parody” was added after the fact to make the video more effective with a commercial hook. (GoldieBlox subsequently removed the Beastie’s song and re-released the same video with different music, which buttresses the idea that the video was not the parody as claimed by the GoldieBlox lawyers in the first place.)

But more importantly, GoldieBlox used the name “Beastie Boys” in the title of their viral YouTube video—a use that both misappropriated the band’s right of publicity and also created an implied endorsement of the video. This blatant attempt to free ride on the band’s good name is, to me, where the analysis should start. (Such free riding was not present in the fair use cases selectively cited as precedent by supporters of GoldieBlox.)

A Logical Step from the Illogical Google Books Ruling

So what do you have in GoldieBlox that Google Books foreshadowed? You have a Silicon Valley company deciding that they can just take a song by one of the most successful bands in recent history and do with it as they like in a commercial to sell a product, all the while associating the band’s name with their commercial and their product. Then the company has their massive San Francisco law firm (the 1,100 lawyer Orrick) sue the band to scare them off by filing what is, some think, a fatally flawed lawsuit.

What kind of people do this? Easy answer—the kind of people who don’t respect creators because creators are comparatively weak litigants. People who want to deny creators the ability to collectively protect themselves. Because this is the message of the Google Books case and Google’s influence in the Valley is not to be underestimated.

That is also the message that GoldieBlox sends to anyone who wants to hear it including their customers. The message was most concisely stated about the Beastie Boys by Mary Elizabeth Williams writing in Salon, who could easily have been addressing any author whose work was taken by Google for their books library:

The Beastie Boys spent a better part of their formidable career making it very clear to even the most casual observer that they were not, in fact, a pack of infantile misogynists. But even if they had been, that wouldn’t give anybody – even a company with a positive, girl-powery message – the right to steal from them. “Girls” is the Beastie Boys’ song, and they shouldn’t be expected to hand it over to anybody in some bizarre legal stab at public shaming. That’s not the inventive, original thinking that GoldieBlox appears to espouse. Instead of hiding behind the thoroughly lame excuse that “The song was sexist, ergo we can take it to sell our toys,” GoldieBlox could instead put on its big girls pants and make something awesome now with its creative talent. The company could instead prove that when challenged, it’s crafty. And that’s just my type.

[Ms. Williams had a particularly brilliant coda after GoldieBlox’snonapology apology to the Beastie Boys:] The whole fiasco is a particularly huge disappointment for those of us who were briefly excited at the thought of a company that would take on the very real and rampant problems of sexism in both toy marketing and in the tech world our sons and daughters will someday be going out into….You know how many of us had been rooting for that? Maybe it doesn’t matter to GoldieBlox, which thanks to all the attention currently has one of the top-selling toys on Amazon. But you don’t create positive change in the world by cavalierly stepping all over the hard work of others.

Most gallingly of all, after lawyering up all over the band just two days ago, GoldieBlox ends its letter with a “Let’s be friends” message. What, no self-absolving smiley thrown in for good measure? If I were the Beastie Boys, I’d tell you to go ahead and hold your breath on that one, GoldieBlox. And I’d say that if you really want to “inspire the next generation” and “be good role models,” you would own up to your mistakes and apologize for them.

But if you’re in the 1%, you don’t want to apologize for anything until you find out first whether you can get away with it.

Chris Castle is a music lawyer in Austin, Texas and edits the MusicTechPolicy blog.

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Jay Rosenthal (Senior Vice-President and General Counsel at the National Music Publishers’ Associations’)

There is nothing less precise in Copyright Law than the concept of Fair Use. Instead of clear definitions, Congress has deemed it wise to provide the owners and users of Copyrighted works, and the Courts, with a four factor analysis approach, which is invariably open to disparate interpretations and wild second guessing on behalf of all concerned. But one point is clear – in today’s hyper-political anti-copyright environment, the contours of Fair Use are expanding to the almost uniform detriment of authors and copyright owners.

Traditionally, courts would generally not recognize the defense of Fair Use if the work was used in a commercial context. This has changed in an era where authors’ rights are constantly on the defensive, and users’ rights seem to override the traditional contours of copyright. This does not mean there are no legitimate instances of Fair Use. Using a work as a parody or satire is a properly recognized defense based on First Amendment principles. But just claiming a work as a parody or satire is not enough – there is a high definitional bar to overcome – and it is a court that must usually make the call.

Google is obviously a commercial and not an educational institution. It copied entire books without authority, albeit offering only various snippets to the public, including educational institutions. Nevertheless, Judge Chin – a very thoughtful jurist – invoked the “public good” Fair Use exception thus seeming to legalize, for the moment, a gigantic swath of unauthorized commercial use of a work. However one feels about the lack of accessibility by educational institutions and libraries of digital copies of books, the ruling clearly is an expansion of Fair Use in a way that is arguably detrimental to authors’ interests. Whenever an author is deprived of the right to approve and to be paid for the use of their work, the author’s property interest is diminished. Is it a good day for the public? Perhaps. Is it a good day for authors? Absolutely not. The gigantic commercial enterprise won – the authors lost.

Now contrast that with the Beastie Boys. While Goldiblox backed down and withdrew the use of the music, they did not acknowledge that their underlying Fair Use rationale was wrong. They only acknowledged that they were shamed into withdrawing the use of the music because one of the Beastie Boys had a clause in his will prohibiting the use of Beastie Boys music as an endorsement of a product. Perhaps this is a new Fair Use factor. Forget about the commercial nature of the use or if the use was a parody (which arguably it is, but there is also a valid counter-argument that it is not) – the real shame was that as a matter of public relations, they were more concerned about the dead author than the living Beastie Boys. The living Beasties can have their music used by a totally commercial enterprise without authority or payment just because of a claim that the work is a parody. In other words, the commercial nature of the usage now seems to have no impact on any Fair Use analysis.

Perhaps the lesson here is that the traditional formulation of Fair Use whereby a commercial use is presumptively not Fair Use, needs to be reconsidered. Authors’ rights should not be viewed so cavalierly. Keep in mind – but for the author maintaining the property interest that provides the incentive to create and the law to protect their interest – there never would be a work in the first place – whether it is a Fair Use or not.

Jay Rosenthal is Senior Vice-President and General Counsel at the National Music Publishers’ Associations’ (NMPA). Prior to joining NMPA, Mr. Rosenthal was a partner with the law firm of Berliner, Corcoran & Rowe, and served as General Counsel to the Recording Artists’ Coalition (RAC), which was founded by Don Henley, Sheryl Crow, and other prominent featured recording artists. Mr. Rosenthal also represented numerous artists and independent record companies, including Thievery Corporation, ESL Music, Mya, Salt-N-Pepa, Sweet Honey in the Rock, Mary Chapin-Carpenter, Rare Essence, Pro Wrestler and Actor David Bautista, Comedian Robert Schimmel, and monument maker Robert Berks.

Mr. Rosenthal teaches Entertainment Law at Georgetown Law School and at the George Washington University Law School. He is a Trustee of the US Copyright Society, a former Copyright Alliance Board Member, a former Copyright Examiner with the U.S. Copyright Office, a founding Board Member of SoundExchange, a former Vice president of the Washington Area Music Association and as an Advisory Board Member of the Songwriter Association of Washington.

Mr. Rosenthal has authored numerous articles on entertainment and copyright law. He is a Contributing Editor with Entertainment, Law & Finance, and a periodic contributor to Billboard and other industry journals and publications. He has lectured extensively around the world on entertainment and copyright industry topics.

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Blake Morgan (Recording Artist, Producer, And Label-Founder)

I’ll use my brief space here to comment on the Goldieblox/Beastie Boys issue, seeing as I’m a musician. This is so simple, really. It’s a commercial use of the song…by definition! It’s in a freaking commercial! Designed to sell things! Even the most pro-pirate-people out there, the most anti-copyright people you’ll ever find, they stop short for commercial uses of a song.

Second, it’s NOT a parody. As David Lowery eloquently points out in a recent Salon interview, a parody of a song is about the song––that’s the point of it. It’s not to sell a commercial product for a for-profit company. This isn’t Weird Al Yankovic poking fun at a song and himself. This is a toy company using a song to sell its products, and then suing the composers of the song in order to do so for free and against the composers’ wishes. And once again, even the most fervent anti-copyrighters out there draw the line here and say that this is where copyright should come into effect.

Native New Yorker Morgan has juggled multiple commercial and artistic successes as national recording artist, award-winning producer, and label-founder, all since courageously freeing himself from a seven-record deal with Phil Ramone’s N2K-Sony label over a decade ago.

The move would prove to be serendipitous, as Morgan would go on to form his own label born from humble beginnings in a one-room makeshift recording studio and office and launched on Morgan’s laptop computer. That label has since flourished with Morgan’s idealism at its core to become the globally distributed family of artists and labels it is today—ECR Music Group.

Find out more in our in-depth interview with Blake in this edition.

http://www.ecrmusicgroup.com/artists/blake-morgan/

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Scott Cleland (President of Precursor LLC and Publisher of www.GoogleMonitor.com & www.Googleopoly.net)

“The deep ethical flaw in Judge Chin’s Google-Books Fair-Use decision is that it is a bald ends-justifies-the-means decision. As an Appellate Judge, Judge Chin should better understand that American jurisprudence depends on ensuring the right “means” i.e. respect for legal rights, due process and proper procedure. There are legal ways and illegal ways to do things. If Judge Chin’s legal logic is upheld, it could be open season on copyright holders by Internet companies because all they have to do is prove that they can reach more users in different ways than the book’s author can by themselves. That perverse outcome is tautological.”

“Another key problem with Judge Chin’s decision is that he apparently re-imagined Google as an individual, not as probably the single largest book copyright infringer in history or as one of the largest for-profit commercial book ventures in history which uniquely enables Google alone to harvest tremendous commercial value from its unprecedented mass-serial-infringement. Moreover, apparently Judge Chin did not understand the unique and exceptional commercial, competitive, and first-mover value to Google of digitizing most of the world’s books without permission of the copyright holder. To a search engine provider, books represent the single best corpus of information to best teach a machine about language context, meaning, structure and grammar in order to provide more commercially valuable search results. Judge Chin apparently imagined Google as a popular modern tech Robin Hood that didn’t steal but redistributed books from their greedy owners to the great unread with no benefit to itself. Judge Chin gave too short shrift to how exceptionally commercially valuable its infringement was to Google and its shareholders of which Larry Page is the largest.”

Scott Cleland is President of Precursor LLC and Publisher of www.GoogleMonitor.com & www.Googleopoly.net. He is the author of Search & Destroy: Why You Can’t Trust Google Inc.

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Mitch Rubin (Global Head, Music Publishing Business Affairs, Smart Devices/Entertainment)

Two separate questions here, and before I address either one, I have to make the qualifications that a) these are my opinions and not those of my employer; and b) I am not a lawyer. First, I would not characterize either the Google Book decision of GoldieBlox’ arguments as expanding the fair use doctrine. There are various factors considered in fair-use cases and as noted by Judge Chin, the determination of fair use is “an open-ended and context-sensitive inquiry”…and calls for “case-by-case” analysis. As such, I don’t see this decision as expanding any of the factors; rather, a natural consequence of the open-ended nature of fair use cases is that each one is unique. As such, I don’t see the Google Book case as expanding any of the fair use statute doctrines. The GoldieBlox situation certainly had no effect on the statute.

Back to Google Books: I’ve only read the decision; none of the testimony. Based on what I read, I do agree with Judge Chin’s decision. I found Judge Chin’s discussion, analysis, and weighting of the factors to be considered in determining whether the use made of these works was or wasn’t fair use quite compelling. Among the arguments that stood out to me were:

  • While Google is indeed a commercial entity, and would stand to indirectly benefit from the Google Books service, the Google Books service itself was generating no direct revenue.
  • The service was fundamentally used for research and there were sufficient protections to make it impractical for a consumer to obtain full copyrighted works and thus it is unlikely that the service would negatively impact the copyright owners in a commercial sense.
  • The service did, in fact, promote sales by providing links to legal sales channels to purchase entire works.
  • The service seems to be a valuable tool in academic/research circles.

The implications of this decision are difficult to predict, not only because of the open-ended/case-by-case nature of fair use cases noted earlier, but also because presumably no individual judge would interpret, weigh, and apply the various factors to be considered in determining fair use in exactly the same manner. As I work primarily with music, I can imagine the decision potentially influencing future fair use cases involving copyrighted musical works. One example would be a service attempting to do something similar with song lyrics; that is, creating a database of full song lyrics that could be searched with safeguards to prevent the viewing and copying of full song lyrics. I suppose it would depend on whether or not the entity were a commercial entity directly profiting from the service; what was the fundamental purpose and use of the service (e.g., educational?); and did the service adversely affect copyright owners in a commercial sense (or conversely help promote commercial consumption of lyrics and/or songs to the benefit of the copyright owner), among other things. However, as noted, the implications of fair use cases would appear to be difficult to predict at best.

As for GoldieBlox, my initial impression was that it was comical to use the phrase fair use in the same sentence as GoldieBlox (which I just did); an obvious altering of a copyrighted work for commercial purposes. On further reflection, it is indeed a parody, so it’s probably not 100% open and shut. Nevertheless, I must confess that notwithstanding the nobility of purpose, and the fact that it was a parody, I think that it’s quite a stretch to claim fair use here, primarily because the work was altered, was clearly used in a commercial manner without permission, and had adverse economic effects on the copyright owners (the work could command a hefty fee). I was a bit disappointed with GoldieBlox’ decision to drop the lawsuit. It would have been interesting had the case gone to trial – especially if GoldieBlox had won. Can you imagine the University of Phoenix using a parody of Another Brick In The Wall (Part 2) in a future advertising campaign…….?

Mitch Rubin is Global Head of Music Publishing Business Affairs at Nokia, directing the global acquisition and administration of music publishing rights for all Nokia music services. He develops and maintains relationships and negotiates agreements with primary music publishing rights holders, including major music publishers and local collections societies and associations.

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Comments

  1. I commit to reading and studying to understand this issue comprehensively and will continue to speak for myself and on behalf of other artists who are attempting to operate in this environment meanwhile. I realize that I will likely get off point more often than I wish and thus welcome correction and direction to make my advocacy more effective.

  2. GoldieBlox don’t seem to have ever actually withdrawn their suit, and the Beastie Boys have now replied with a defense and counter-claim.

    On the ‘parody’ issue and fair use, people usually refer to the ‘Pretty Woman’ case (Campbell v Acuff-Rose). But in quoting the Supreme Court’s judgment, they tend to overlook footnote 16, which warns that ‘a work with slight parodic element and extensive copying’ will be less likely to qualify as ‘fair use’. That seems a good description of the GoldieBlox ad, which has ‘extensive copying’ of the music, but only a few lines of lyrics which might, ambiguously, be taken as a comment on the Beastie Boys song. Apart from that, there is really nothing to mark it out as a parody. Just repeating the word ‘girls’ hardly qualifies as such. I have also seen GoldieBlox’s ‘We Are The Champions’ ad, which does not seem parodic at all. It is a straight copy of the Queen song, albeit sung by children. Does that make it a parody?

    It is also worth reading Justice Kennedy’s concluding observations in Campbell. Although Kennedy concurred in the Court’s judgment, he warned that future courts ‘should take care to ensure that not just any commercial takeoff is rationalized post facto as a parody.’

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