This article originally appeared in the 3.20.14 issue of Metroland
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
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.
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
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
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.
settlements weren’t all bad news.
the big kahuna, Viacom v. Google
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.
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challenges its outdated business model.
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
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
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.
might be at the wrong end of an attorneys’ fee award, since Prince already won
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.
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
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.
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
Paul Rapp is a
Berkshires-based IP attorney who knows what he likes and likes what he knows.