Anthony Falzone's blog

Universal Music's Second Strike

Last year, Universal Music threatened Javier Prato with legal action for using "I Will Survive" in a humorous video posted on YouTube. It retreated after the Fair Use Project explained Prato's video was protected by Fair Use.

Now, Universal has targeted video blogger Michelle Malkin, who has been harshly critical of one of Universal's recording artists, the rapper Akon. Malkin posted a video blog on YouTube detailing (and showing) what appears to be footage of Akon assaulting a fifteen year old girl during a concert, and asking why his actions have not been addressed by Akon's label (Universal), his other sponsors, and certain politicians. In her video, Malkin includes footage from the concert at which this alleged assault happened, and other examples of what she asserts to be Akon's misognystic performances, in order to make her case.

So how did Universal respond? It apparently issued a DMCA takedown notice to YouTube on the ground Malkin's blog infringed its copyrights. The video was taken down from YouTube, but you can still see it here, on Malkin's blog. Read Malkin's discussion of the issue here.

If Universal did issue this takedown notice, it needs to retract it and apologize at once. Copyright is not a tool to silence or remove speech you don't like.

Viacom Does The Right Thing; CIS And EFF Dismiss Complaint

Last month we filed suit against Viacom for taking down Robert Greenwald's parody of the Colbert Report. We are happy to report that Viacom has conceded it should not have done so, agreed to withdraw its objections to the parody, and also agreed to take steps to help avoid incidents like this in the future.

In return for that, we have dismissed our complaint, and are working with Viacom to establish specific procedures to avoid the takedown of protected material -- and to expedite the restoration of it once mistakes have been identified.

Personally, I applaud Viacom for doing the right thing here, and for its willingness to do more.

A Bold And Fantastic Step By The BBC

We are at the point where technology makes it feasible to share publicly the vast swaths of our history, culture and heritage that reside on radio, television and film archives. As detailed here, the BBC is taking the lead in that endeavor, having apparently announced plans to make its entire archive available for free.

Dylan Hears A Who -- And Gets A Cease And Desist Letter Too

As detailed in this article from Salon, the the Estate of Theodor Geisel (better known as Dr. Seuss) was not amused when somebody decided that Green Eggs And Ham is really best when reinterpreted by Bob Dylan -- or at least a good impersonation of him -- and set to music.

The song itself is brilliant. You can learn more about it and hear it here, at least for now.

The Estate's response was irresponsible, if not simply abusive. Parody and satire, whether obvious or subtle, lie at the heart of Fair Use. So does this song.

Shloss Seeks Fees From Joyce Estate

Having obtained what she sought in her complaint (the right to publish her Electronic Supplement on the internet) and more (the right to publish it in print, too), Professor Carol Shloss has asked the Court to order the Estate to pay her attorneys' fees based on the unsubstantiated positions the Estate took for years, only to back down once finally challenged. Read Shloss's motion for attorneys' fees here.

Viacom Misses The Joke; CIS And EFF Attorneys File Complaint

While fair use can be murky in some respects, there is no doubt that parody lies at the center of its protections. Viacom had YouTube take down Robert Greenwald's clear parody of Stephen Colbert. While the parody is funny, silencing protected speech is not. So here is the complaint we filed along with the Electronic Frontier Foundation seeking a declaration that Greenwald's parody is protected by fair use, and compensation for wringful takedown under DMCA section 512(f).

View the video here

An Important Victory For Carol Shloss, Scholarship And Fair Use

Last June we sued the Estate of James Joyce to establish the right of Stanford Professor Carol Shloss to use copyrighted materials in connection with her scholarly biography of Lucia Joyce. Shloss suffered more than ten years of threats and intimidation by Stephen James Joyce, who purported to prohibit her from quoting from anything that James or Lucia Joyce ever wrote for any purpose. As a result of these threats, significant portions of source material were deleted from Shloss's book, Lucia Joyce: To Dance In The Wake.

The Future Of Political Media: An Example And A Metaphor

This video may be our first glimpse of just how different, if not revolutionary, the 2008 presidential election may be. The ability of ordinary people to create and share video content worldwide threatens to obliterate the precisely orchestrated messaging that has marked the media strategy of successful candidates. Say goodbye to the top-down control of broadcast media. Say hello to user-generated politics, where you have the power to control the message and shape the debate.

Viacom v. YouTube: Uncertainty, Investment And Innovation

A lot has been said about Viacom's billion dollar lawsuit against YouTube and Google. In his editorial in last Sunday's New York Times, Larry Lessig pointed out the chaos the Supreme Court has invited through its new-found fondness for the common law of copyright.

One victim of this chaos may be investment and innovation. If companies cannot rely predictably on clear statutory protections like those the DMCA provides for online service providers who create open platforms for people to share content, then many innovators and investors may simply steer clear of this business in favor of one that offers more security and predictability.

Board Member Davis Guggenheim Wins Oscar For Inconvenient Truth

Our Documentary Film Program (announced here last week) is fortunate to be guided by an advisory board that includes some immensely talented filmmakers, including Kirby Dick, Arthur Dong, Davis Guggenheim, and Haskell Wexler.

It was especially exciting to see one of those filmmakers, Davis Guggenheim, win an Oscar on Sunday for his film Inconvenient Truth. His film is a fantastic example of the power of this medium, and it is wonderful to see it receive the recognition it so richly deserves.

Shloss Details Ten Years Of Threats From Stephen James Joyce

On Friday, December 15, we filed Carol Shloss's opposition to the Joyce Estate's motion to dismiss her claims for lack of subject matter jurisdiction. In this opposition, the Estate's ten years of threats agains Shloss and her publisher are set forth, and the Estate's suggestion that she had nothing to fear is answered. Read it here.

The Triumph Of Self-Expression In Digital Media

The cover story in the Arts & Leisure section of the Sunday New York Times is about the rising "tsunami of self-expression" that has flooded the web and left everyone wondering if the internet may yet fulfill its potential to democratize media and popular culture alike. Read it here.

This capacity for self-expression is exactly what we must protect through Fair Use and other principles that provide the breathing room it needs to flourish.

Will Universal's Campaign Against User-Generated Content Lead Us Back To Sony?

Universal Music has begun to go after user-generated content sites in a big way. In October, Universal sued video-sharing sites Bolt and Grouper, alleging that each is liable for the posting of copyrighted material by users. Recently, Universal filed suit against a much bigger (and richer) opponent, MySpace, on the same theory. (A copy of the complaint will be available here shortly.)

Most of the discussion about these suits has centered around whether the Digital Millenium Copyright Act ("DMCA") will protect the defendants from liability. It provides a "safe harbor" for online service providers ("OSP's") who lack actual notice of copyright violations so long as they take down infringing material upon actual notice of it from the copyright owner. See 17 U.S.C. 512(c).

But there is trouble lurking. An OSP that has the ability to control infringing conduct can't take advantage of the safe harbor if it profits directly from the infringement. See 17 U.S.C. 512(c)(1)(B). Enter contextual advertising. It keys ads to the content the user seeks and sees. If MySpace earns revenue from contextual ads that show up alongside a pirated U2 video precisely because I searched for U2, it would seem MySpace is profiting directly from the infringing material.

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An Encouraging Fair Use Decision From The Second Circuit

Here is a very encouraging case from the Second Circuit Court of Appeals, Blanch v. Koons.

Visual artist Jeff Koons is no stranger to the courts. Specializing in what some call appropriation art, he borrows pop-culture images in order to comment on the culture that generates and consumes them. This has gotten him sued more than once. And he has lost more than once.

This time, he won. Although he admitted to scanning part of a photograph that appeared in Allure magazine and using it in his collage, Niagara, he did so precisely because it was a fashion magazine photograph -- and thus the subject and target of his commentary. The Court held that this was fair use largely because of the transformative nature of the work.

This case vindicates our right to borrow, use and transform the culture that surrounds us as an element of our own expression. This example happens to concern borrowing from visual art. But ask yourself this: if we can "sample" a fashion photograph in order to create something new and transformative, shouldn't we able to do likewise in other mediums? Music, for instance?

To view Niagara and the photograph used in it, click here.

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