Wednesday, March 19, 2014


This article originally appeared in the 3.20.14 issue of Metroland.

            Well, lookie here.  The other day I was loathing having to write this column this week.  A combo of late-winter malaise, persistent sickness, and catastrophic car trouble had reduced my spirits to a level even bourbon couldn’t fix.  I could write about spying (again), crappy trade agreements (again), or maybe the lame irrelevance of the SXSW festival (depressing).  Sigh.  Then, while surveying the world in lieu of much-needed sleep last night at 2 AM, I discovered that three of the biggest and most significant pending copyright lawsuits -- all matters that we’ve talked about at length here -- all settled on Tuesday.  Boink!

            Settling a lawsuit is generally good for the litigants; it ends an expensive and unpleasant chapter, not to mention deep-sixing business uncertainty and all that negative juju.  There’s an old legal canard that a good settlement is one that leaves all parties equally unhappy.  But for cases like these that involve big important legal questions, settlement usually means those questions won’t get answered.   Which is a drag for us lawyers.  Plus, in copyright law, where so many vital issues are fraught with uncertainty (a copyright lawyer friend once said that the correct answer to any copyright question is “it depends”), settlement just adds to that uncertainty.  And uncertainty in the law always favors the side with the most money, the side that can sustain a long, punishing lawsuit dancing on the head of uncertainty.  Uncertainty often makes the less-monied party fold like a two-dollar suitcase, no matter what the merits or righteousness of that party’s case, because the risks of going forward are too great.

            But these settlements weren’t all bad news.  First, the big kahuna, Viacom v. Google, where Big Media giant Viacom tried to extract mountains of Google moolah because lots of Viacom’s oh-so-precious intellectual property wound up being stuck up on YouTube (which is owned by Google) by people like you and me.  This case has been lurching around the courts for seven long years and Viacom has mostly been getting its corporate ass kicked every step of the way.  The lawsuit was a classic example of Big Media trying to slough off its responsibility to police its copyrights to somebody else, as well as another Quixotic attempt to kill, or at least maim, a disruptive technology that challenges its outdated business model.  Reports are that no money changed hands in the settlement, which means that Viacom finally realized that the millions it was paying lawyers to keep this lawsuit going wasn’t generating any shareholder value.  And shareholder value is all that matters to “people” (my friend) like Viacom.

            Then there’s Richard Prince and his Rasta photo “appropriation” case.  After a hideous trial court ruling finding Prince liable for willful copyright infringement, he largely won his appeal that  putting blue splotches on a professional photographer’s work was transformative fair use.  This decision that was probably correct in result but was widely criticized for lacking much in the way of meaningful analysis or guidance about what a proper standard for fair use might be.  The appeals court ruled that most of Prince’s 30+ pieces were protected by fair use and sent the case back to the trial court to rule on the remaining handful of works.  There’s no word on what the terms of the settlement were, but I’m guessing the photographer realized that even if he was to “win” on his remaining infringement claims, the amount of his damage award would be less that what it would cost to get him there.  Plus, he might be at the wrong end of an attorneys’ fee award, since Prince already won the war. 

            Then, finally, there’s the Beastie Boys verses Goldiebox case, where the girls’ science toy company used the Beastie’s song “Girls” (with changed lyrics) in a YouTube ad without permission.  I sided hard with the toy company; the use of the song was definitely fair use, and the song wasn’t much of a song to begin with.  A lot of people sided with the Beasties, arguing that the toy company’s campaign was nothing but a cynical attempt to bait the Beasties and generate loads of free publicity (which it did).  Which is an argument that has nothing to do with fair use – it’s really a popularity contest masquerading as a legal argument.  In any event, the settlement involved a public apology by Goldiebox (which is on the Goldiebox webpage) and an agreement that it will donate a percentage of its revenue to a charity of the Beastie’s choosing, one that supports science and engineering education for young girls.

            This Goldiebox settlement is a shame legally speaking, because the fair use argument was crisp and the likely ruling in Goldiebox’s favor would have been healthy for a painfully murky area of law.  But the settlement allows everybody to save face, it’s a feel-good settlement, and it puts some money in some good places, and not just in somebody’s pocket. 

            So it’s all good.  For now.

Paul Rapp is a Berkshires-based IP attorney who knows what he likes and likes what he knows.

Wednesday, March 05, 2014


This article was originally published in the 3.6.14 issue of Metroland

 Last week Saratoga Springs blogger John Tighe (“Saratoga in Decline”) was arrested on child porn charges.  His computers had been seized by the New York State Police 5 months ago, as part of an investigation about whether Tighe had hacked into the IT systems of NXIVM, the shady cult-like “self-improvement” organization based in Latham.  NXIVM is notoriously litigious, swimming in dough, and has had questionable cozy relationships with law enforcement in the past.  On his blog, Tighe had been doggedly critical of NXIVM and its lawyers.  Look, I’m no fan of child porn enthusiasts, and to be sure Tighe was no angel.  He was a classic example of the unhinged blogger, and a lot of what he did and said on his blog was irresponsible and over the top.  But isn’t there  something profoundly disturbing about cops seizing your computers based on some suspicion of a cyber break-in, and then rifling through your computers for months until they find something illegal in there?  Something totally unrelated to the initial seizure?   Oh, and Tighe’s blog, with all of its criticisms of NXIVM, disappeared last October when his computers got seized.  Something doesn’t smell right around here.

            Moving on.  Last week the 9th Circuit Court of Appeals, the federal appeals court that covers the entire west coast, issued a take-down order against Google that blew a lot of minds.  The Electronic Frontier Foundation jumped on it, saying it was a classic example of “bad facts making bad law”; Tech Dirt went particularly ballistic, calling the decision “horrific.”    I’ve only got room to scratch the surface, but here goes.

            The facts are as weird as can be.  An actress named Cindy Lee Garcia was paid $500 to act in what she was told was to be an action film entitled “Desert Warrior.”  Her scenes wound up in “Innocence of Muslims”, the anti-Islamist film that may or may not have caused the embassy attack in Benghazi.  At one point an over-dub had her saying “Is your Mohammed a child molester?” Garcia became the focus of a fatwa, and she's received numerous death threats.

            The film was all over YouTube and Garcia demanded it be taken down, claiming a copyright interest in the film.  YouTube refused, Garcia sued, the lower court ruled that she had no copyright interest, and then the 9th Circuit reversed and ordered Google to remove all versions from YouTube.  The court also placed a gag-order on all involved not to talk about the ruling for a week.

            I’m not terribly shocked by the finding that Garcia had some copyright interest in the film.  The EFF and Techdirt and the dissenting opinion went nuts, saying that actors’ performances aren’t copyrightable.  Nonsense!  It takes very little creativity to garner copyright protection, and to say that a dramatic performance doesn’t get you there is absurd.  (You’re welcome, actor friends!)

            Then they got upset because the court said Garcia wasn’t an employee of the film-maker (if she’d been an employee, the film-maker would have owned the copyright to her performance).  Really? Someone who acted for a couple of days for a barely-professional movie production is anything but an independent contractor?  Get out.

            So the court ruled that Garcia had a legal interest in her performance. In the normal course of things the law would presume that she’d granted the film-makers an “implied license” to use her performance in their film.  I mean, why else was she acting in front of the cameras, right?  But Garcia’s implied license was for a relatively benign film called “Desert Warriors”, not for an inflammatory piece of trash condemning one of the world’s major religions.   So “Innocence of Muslims” infringed Garcia’s copyright in her performance.

            The decision’s critics say that if this ruling stands, any actor in any film can sue if they don’t like how the movie comes out.   Again, nonsense.  There’s a huge and fairly identifiable difference between esthetic disputes and utter deception that puts an actor’s life in danger.

            So here’s a rare instance where I disagree with folks who are usually my heroes.  I think this part of the court’s decision was sound; I also think that the facts are so extremely odd that there will be little or no negative ramifications from this decision on the film industry. 

            And I think that Techdirt’s and the EFF’s arguments to the contrary undermine their better arguments against the remedy the court fashioned: the take-down of the film and the gag order.   This is where the court went over the cliff, big time.  Ordering a film banished because of a minor copyright violation is wrong.  Garcia’s role in the film was small; she had something to protect, but it wasn’t very much.  The court’s order was tantamount to censoring the film, and where you’ve got tension between free speech and copyright law, it’s copyright law that should bend.  Plus the film has been online for several years already—taking it down from one platform now makes no sense.

            And then there’s the gag order.  Huh? What country are we in?  This case will undoubtedly get reargued before the full panel of 9th Circuit judges, and soon.  They’ll be a ton of amicus parties and it’s gonna be fun to see the EFF lawyers arguing on the same side as the MPAA lawyers.  And ultimately, cooler heads will prevail.

Paul Rapp is a local entertainment attorney who just learned, to his extreme displeasure, that a failed turbocharger can totally destroy a car motor.