February 26, 2015

Who's The Fairest Of Them All: 5 Useful Articles ­– Vol. 3 Issue 3

1. The FU Defense

Dust off your Betamax tapes and 2 Live Crew cassettes, because we're four days into Fair Use Week! Traditionally, of course, Fair Use Week is celebrated by pointedly telling everybody you encounter that—per 17 U.S.C. § 107—fair use "is not an infringement of copyright." But we at Five Useful Articles are a tolerant bunch and will accept your transformative take on the holiday.

Like a nerdier Black Rock City, a Fair Use Week blog has emerged on the virtual playa and is already brimming with content. At this point if you printed out just this week's articles you could probably wallpaper an office with them, although that's not recommended if you're in the Ninth Circuit.

Most importantly, though: if there is a librarian in your life, make sure you're prepared for any Fair Use Week encounters that may occur. You can start by brushing up on these Top 10 Fair Use Cases of 2014, but even that may not be enough. In case you find yourself cornered, ask for their best Seussian rhyme about why Ford pardoned Nixon, and run away while they're distracted.

2. The Next Great Godwin's Law

From the unintended-consequences department: If you had a time machine and went back in time to kill Hitler, then Mein Kampf might have been in the public domain already. (Paging Hollywood: please make a copyright thriller Ashton Kutcher vehicle with that exact premise. This one's on us.) But since nobody's figured out the time travel thing yet, the copyright lasts for 70 years after his suicide in 1945.

That copyright was transferred in 1945 to the state of Bavaria, which has declined to publish the book for the last seven decades. Given the text's entry into the public domain next January 1, though, that is about to change. In order to address the fallout from just anybody being able to print copies, Bavaria will produce and sell a heavily annotated and historically contextualized edition. As you can imagine, this development is not without controversy—especially given that this is a government- (and so indirectly a taxpayer-) funded initiative.

But what can you do? Wait, don't answer that. Because of course there's an obvious solution to the problem of objectionable material falling into the public domain. But before you call for Das Sonny-Bono-Urherrberechtschutzfristverlängerungsgesetz, keep in mind: you know who else retroactively extended copyright terms?

3. Idiots, Part I

Sometimes copyright claims are dumb and bad and we write out a paragraph or two arguing why they're dumb and bad. Other times, we don't really feel like it's necessary—we just want to sit back and marvel at the Badness.

TorrentFreak, which has seen some dumb DMCA notices in its time, has dubbed this particular series of takedown requests "The World's Most Idiotic Copyright Complaint"—in our opinion, rather harsh after the last 12 months, which brought us Monkey Selfie, Left Shark, and Oracle v. Google.

But we don't disagree with their assessment! The notices from Total Wipes Music Group each include dozens of links, some of which include blog posts that instruct users on how to torrent anonymously, and some of which are, uh, the EFF's instructions on how to use PGP on Mac OS X.

Speaking of idiots—Craig Brittain, former operator of the RP site IsAnybodyDown, continues his ongoing quest to be the most garbage human in existence. He's submitted the second dumbest DMCA takedown we've seen this week. His takedown request attempts to get Google to remove pages mentioning his extremely garbage deeds, targeting sites like the Huffington Post, Forbes, Salon, Vice, Gawker, and FTC.gov. Let us repeat, F T C dot gov. Yes, the Federal Trade Commission's website. From, you know, the time the FTC went after him for being a morally reprehensible extortionist. Other targets of Brittain's DMCA request include friends of the newsletter Adam "SJW" Steinbaugh and Ken "A Popehat" White, the latter of whom went on to suggest Craig Brittain change his name to something with "less baggage," like "Pustule Nickelback McHitler III."

This isn't the first time Craig Brittain has attempted to use the DMCA to censor his critics, "attempted" being the operative word here. Copyright law is broken in some places, but it's apparently not so broken that it's working in Craig Brittain's favor.

Last we checked, Brittain was busy attempting to join GamerGate and tweeting about how net neutrality is bad.

4. Idiots, Part II

Totally Reliable Source Cryptome.org is claiming that the Oscar-winning documentary Citizenfour is now in the public domain, thanks to a copy of the film being entered into evidence in Edwards v. Snowden (yep, that's the caption, yep). In light of this, Cryptome has linked to downloads of the film. But, that's not how it works. Stewart Baker submitting a Washington Post piece as an exhibit doesn't mean he loses copyright in his op-ed, either.

We should probably back up here a little. A random disgruntled viewer of Citizenfour is suing Snowden, Poitras, and others for divulging state secrets in the film. Yeah, really, he's just some dude and he's not going to take it anymore. Poitras submitted a copy of the film as evidence. The plaintiffs' attorney freaked out and placed the DVD "under lock and key," just in case she catches the treason cooties from it. Plaintiffs then moved to seal the exhibit, to stop the state secrets from reaching the innocent eyes and ears of the loyal American public. (Less than two weeks later, Citizenfour won an Oscar, so we might venture to say that the cat is somewhat out of the bag). The motion was denied, because, seriously, this is not how any of this works, dude. The plaintiffs are currently appealing the decision not to seal Citizenfour up to Tenth Circuit Court of Appeals. No, that's still not how any of this works.

In any case, none of this means that Citizenfour is in the public domain. But why get bent out of shape when the much more entertaining drama of the Citizenfour lawsuit can be read on RECAP? (Alternately, check out Motherboard's summary of the docket, which includes a court order to get the plaintiff's attorney to please stop calling the judge at 12:48 AM).

5. A Tyler-Made Suit

There are lots of reasons not to like DRM, but Apple has about half a billion more than usual this week. That's after Apple—the computer-maker—was found to be infringing on a DRM-related patent owned by Smartflash—the, erm, lawsuit-maker. Smartflash presumably counted its $532 million in winnings while walking back to the company headquarters which, in a truly astonishing coincidence, happens to be in a suite across the street from the Tyler, TX courthouse where the patent battle took place.

But it's not the eye-popping dollar figure or the incredible serendipity of the totally-not-a-troll's digs and the resulting venue choice that's most remarkable here. The Eastern District of Texas may have set up an even more incogitable outcome: making the Federal Circuit look good. After all, last year that court rejected the method of damages calculation that led to a $368 million patent decision against Apple in Virnetx. It's actually kind of nice to be able to tell a patent story where the Fed. Cir. is not the villain—but then again, when you're up against a patent troll that traffics in DRM software, that's a low bar to clear.

De Minimis News Items


Get On My Leval: Transformative Use Of The Week

A Few Silent Men

Hypo-quandary of the Week

In each issue of Five Useful Articles we introduce an absurd copyright hypo and invite our readers to provide their expert opinions, the best of which will be featured in next week's issue. Tweet at us with the hashtag #5uaHypo.

Sarah is an artist whose preferred medium is federal legal filings—she often prints out entire dockets to create her masterful collages. Parker is a blogger / art critic. He writes a post critical of Sarah, and embeds several of her copyrighted images into the post. Sarah issues a DMCA notice to Parker's blogging platform, and his post is removed. Parker, irritated, scans a copy of Dr. Seuss's Green Eggs and Ham. He digitally erases the text from the scanned pages, and inserts rhymes mocking Sarah for her DMCA takedown. He posts the manipulated Dr. Seuss pages onto his blog. In retaliation, Sarah copies the images, merely adds the text "#ParkerIsADork" onto each image, and then posts them onto her blog.

What could possibly make this more ridiculous?

Here's our favorite answer from last week:

Entirely Ornamental, Non-Utilitarian Article

The humor of the Downfall Hitler meme depends in part on the viewer’s being unable to understand German. For most viewers outside German-speaking countries, this is probably the case. In the US, for example, of students who study a foreign language, only about four per cent study German. For a viewer who speaks German the dissonance between what is said and what the subtitles show is confusing and undermines the humor, at least to some extent. As Hirschbiegel, the director, says of the parodies “Of course, I have to put the sound down when I watch.” But for the viewer who does not speak German, the incomprehensibility of the words enhances the overall madness of Ganz’s performance, and thus magnifies the incongruity of the (usually mundane) subtitles. The audio portion of the original is thus valued in the parody not for the information it contains, but for the opposite reason: for its failure to convey information. This leads to the result that the degree of transformativeness of the work varies depending on the audience. The work is most transformative to the viewer who reads English but cannot understand spoken German. At the other extreme, the viewer who understands spoken German but not written English will perceive no transformation at all, aside from some incomprehensible text at the bottom of the screen; for all the viewer knows, the subtitles might be an accurate translation.

Reclaiming Copyright From the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody by Aaron Schwabach

We wish we could be at the #BlurredLinesTrial, but following @PamelaChelin might just be the next best thing. Parker will be at IP/Gender in DC on Friday, and both Parker and Sarah will be at Algorithms and Accountability in New York on Saturday.

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.