December 11, 2014

The Grinch Who Stole ©hristmas: 5 Useful Articles — Vol. 2 Issue 10

1. You're A Mean One, Mr. Australian Attorney General

Every Aussie down under loves surfing the 'Net,
But it's something that AG George Brandis can't get,
Brandis hates torrent trackers! He hates blogs! He hates Twitter!
So he's trying to shovel it all down the [G'day, Mate].

See: an Aussie commission said "We need fair use."
(Which, if we're being honest, might not cover Ol' Seuss),
But Brandis said fair use won't work—not at all—
In his mind, user rights simply can't be too small.

So he called for a plan, with a series of strikes,
But the folks in the know looked at that and thought, "Yikes!"
Now a new plan's emerged, with his frenemy Mal,
That steered clear of those strikes, but won't much help morale.

They've now told ISPs, "Sure, you give it a spin,
But you've got just four months, and then we're stepping in."
But can ISPs hand them the SOPA they crave?
Why can't "foreign rogue sites" simply learn to behave?

Looks like Christmas came early for a handful of folks,
For Foxtel, for Roadshow, for Murdoch's News blokes,
For the rest of you Aussies: there's not much we can say,
Let's just hope AG Brandis gets coal Christmas Day?

+ (If you'd like to read more but not, you know, in verse,
You can't beat this piece—and you could do much worse.)

2. Dog And Sony Show

If the absolutely massive hack of Sony Pictures' internal networks were a movie, it'd be (a) a fascinating thriller with nigh on hundreds of intertwined plotlines emerging at once and (b) probably available before release date on all the top peer-to-peer networks. As it stands, though, it's a mystery: who's behind the pilfering of tens of terabytes of internal company data—and how should we feel about it?

We're a respectable copyright joke newsletter and not some gossip rag, so we'll refrain from digging into the juiciest stuff. (There is some juicy stuff in there, though, if you're interested.) There are a few angles, though, that are relevant to our interests.

Like: in addition to releasing corporate communications, the group behind the breach has leaked five Sony films to file-sharing sites. And now the studio is apparently endeavoring to hack back at networks that are distributing its data, which if true is awfully 2002 of them. Finally, though only a fraction of the information has been published, there's an index of the 38 million files the hackers have, and it's said to include 6,000 files with "MPAA" in the name, filenames that include "Pirate Bay" and "MEGA," and financial data related to piracy since 2006. Even if the perfect Five Useful Articles story hasn't emerged yet, it seems there's a good chance it will.

3. Run This Takedown

Jay Z has managed to brush off a copyright suit concerning a "loudly shouted, buoyantly exuberant 'Oh!'" that was sampled 42 times for the song "Run This Town." (See our previous coverage here). The Oh! was originally from a funk record now owned by TufAmerica, which has made a nice little business out of buying up the rights to old sound recordings and then suing people.

As far as hustles go, it's a pretty smart one. TufAmerica has managed to shake down several artists, including Kanye West for the very same Oh! in a different track. And the case law isn't great for artists who sample, even if the sample is very short and distorted. The big one, of course, is Bridgeport Music v. Dimension Films, which was over a two second sample that had been modulated and distorted until it was unrecognizable. "Get a license or do not sample. We do not see this as stifling creativity in any significant way."

In contrast, TufAmerica v. WB Music Corp. is a nice change of pace. The issue isn't exactly the same (although the de minimis doctrine—the defense that the copying is so small that it's not infringement—is mentioned on page 13). But it's a big difference from "Get a license or do not sample." It didn't matter if the sample had been literally copied from the record (which, to be clear, was always a contested fact). It had been changed so much that no "copy" was made for the purposes of the copyright—it was just too different to find any infringement. Judge Kaplan had some serious shade to throw in that regard: "We are concerned here with an alleged sample of a single syllable that is, at best, barely perceptible in the allegedly infringing works and that at best has only the most dubious claim to qualitative significance with respect to the allegedly infringed work."


4. DRM und Strang

If you want to strip the DRM off your lawfully purchased media, we suggest you Google for how to do that. And thanks to a recent ruling from the Southern District of New York, we can feel a little more confident that we're not engaging in contributory infringement or inducement by making that suggestion.

The case from which that ruling emerged, Abbey House Books v. Apple, Inc. is one of the many interlocking lawsuits related to Apple and the publishers' ebook price-fixing practices. Abbey House actually went a step further than our hypothetical, naming a specific program (Calibre) that would let people break the DRM handcuffs off their ebooks so they could back up their libraries and continue to add them to new devices after the company closed up shop.

This sort of copyright case, where publishers complain that simply informing users about widely-known techniques to preserve access to their own stuff somehow constitutes infringement, does not put a good face on DRM. But then, DRM has a kind of fundamental PR problem: no matter how well it's designed, it's still intended to keep you from doing things you want to do.

In the case of digital media, this may be something users have come to begrudgingly accept, and even expect. But when it comes to the morning coffee, it is still considered unusual and offensive. So it should come as no surprise that Keurig's attempt to lock home brewers into first-party cups has been defeated, and the (hilarious) hack video has circulated widely. There's a lesson in this: you can take our ebooks, our video games, our music, our movies—but hands off our coffee.

5. Smash the T.Markeyarkey

Our very own Parker Higgins has gotten back the results from a Freedom of Information Act request to the USPTO about their creepy mascot, T.Markey. And we have to say, we were surprised by how much the agency decided to redact from these documents.

What exactly is it that the public can't know about the reclusive anthropomorphized encircled R? What is the USPTO trying to hide?

An anonymous whistleblower has provided these images to supplement the responsive documents from the government. We can't confirm their authenticity, but from the looks of things they are powerful stuff. We'll let you be the judge.

De Minimis News Items


Get On My Leval: Transformative Use Of The Week

How I Defeated the Tolkien Estate by Austin Gilkeson is a fanciful tale about defeating the copyright on a fanciful tale.

Entirely Ornamental, Non-Utilitarian Article

In this post-Bridgeport era, it seems the traditional defenses to a copyright infringement action of de minimis use and uses deemed fair due to the transformative nature of the use are not available (at least in some circuits) when the infringement claim is based on alleged copying of the sound recording. However, these defenses remain viable for alleged infringement of the underlying musical composition. Additionally, although a compulsory licensing scheme exists for unauthorized use of musical compositions, no such regime exists for use of sound recordings.

This incongruent treatment of musical compositions and sound recordings has several negative consequences: higher transaction costs to secure licenses to sample sound recordings, inconsistent application of federal law among the circuits and dramatically reduced creative output. This result, in turn, has led to a particularly onerous impact on the hip hop genre, which relies heavily on the artistic value of sampling and other innovative uses of technology to create entirely new works.

Sampling, Looping, and Mashing … Oh My! How Hip Hop Music is Scratching More than the Surface of Copyright Law by Tonya M. Evans

Five Useful Articles is selected and arranged by Parker Higgins and Sarah Jeong. You should follow it on Twitter. This newsletter does not reflect the views of their past, present, or future employers, or the Electronic Frontier Foundation. And good lord, this is not legal advice.