The legal edition! Some interesting things happened this week in the thorny world of intellectual property rights.
The US Court of Appeals for the Tenth Circuit overturned the lower court's decision from last year's Golan v. Gonzales, stating that Congress did not violate the First Amendment with the the Uruguay Round Agreements Act. The URAA was a trade treaty that restored copyright protection to thousands of books, films, songs and other creative works that had previously been held in the public domain.
This outcome is disappointing for a number of reasons, the first being that all of these works will immediately become prohibitively expensive for filmmakers and artists to use in their works. Also, the predicate decision in Golan v. Gonzales was the first time a court had taken the stance that aspects of the Copyright Act violate the First Amendment. This decision also grants an astonishing amount of discretion to Congress about when/if/which materials should be held to the previous Public Domain standard.
Which is buffered a bit later on:
In undertaking this review, we “must accord substantial deference to the predictive judgments of Congress. Our sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.”“[S]ubstantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency.” This deferential standard is warranted for two important reasons. First, Congress is “far better equipped” as an institution “to amass and evaluate the vast amounts of data bearing upon the legislative questions.” Second, we owe Congress “an additional measure of deference out of respect for its authority to exercise the legislative power.”
Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest we infringe on traditional legislative authority to make predictive judgments.
The idea/expression dichotomy ensures that only particular expressions, and not ideas themselves, are subject to copyright protection.... Additionally, the fair use defense allows individuals to use expressions contained in a copyrighted work under certain circumstances, including "criticism, comment, news reporting, teaching . . . scholarship, or research . . . and even for parody." ... Section 514 does not disturb these traditional, built-in protections, and thus, such protected speech remains unburdened.
Ultimately this case boils down to yet another sloppy, vague precedent instead of establishing a clearer understanding of what reasonable copyright protections are in an increasingly technologized world. It also spreads authority to interpret and enforce copyright standards to a group of political representatives who -- not for nothing -- due to a recent Supreme Court ruling can now be plied with limitless lobbyist dollars by special interest groups who have a vested interest in the most regressive protections possible.
On a brighter note, YouTube won a $1B copyright lawsuit against Viacom this week. A judge ruled that since the site had enacted policies making good faith efforts to keep copyrighted materials off the site they qualify for safe harbor protections under the Digital Millenium Copyright Act. Viacom has promised to appeal the ruling and after reading some of the e-mail conversations that were released in the evidentiary findings Mark Cuban is dumbfounded they even lost in the first place. USA Today sifted through the 30-page decision for the more tawdry bits. Such as the one below, wherein Viacom execs deal with the paradox caused by being involved with a lawsuit accusing YouTube of making millions on ad revenues from illegally obtained videos but that because of that high traffic their individual properties also benefit individual shows to keep clips on such a high traffic site and threatening the site with takedown notices began to alienate their own audiences.
"Viacom has altered its own videos to make them appear stolen." Indeed, Google says that a former president of MTV, not named, testified that Viacom didn't take down clips from The Daily Show and The Colbert Report because "we were concerned that Jon Stewart and Stephen Colbert believed that their presence on YouTube was important for their ratings as well as for their relationship with their audience."
LOLz! Maybe the appeal process will reveal how long it took Viacom to figure out they could put their own properties, on their own sites, charge advertisers and eliminate the need for lawsuits (not to mention the epic amounts of crab-apple e-mailing between CEOs).
Guest posting over at Documentary Television, Fair Use guru Pat Aufderheide sees a break in the clouds. She credits the Center for Social Media's creation of the Documentary Filmmakers’ Statement of Best Practices in Fair Use for fewer insurance claims being filed for copyright lawsuits and includes hard data indicating documentary filmmakers are still using loads of copyrighted material, now with a greater understanding of Fair Use.
It's certainly encouraging to know that corporations are finding new revenue sources besides blanket litigation which is causing fewer production insurance claims to be filed and undoubtedly, fewer headaches for producers. But I've been told (off the record) what some of these filmmakers paid just for the festival licenses to show their films with copyright-protected footage (typically broadcast news coverage) and in every case it far exceeded all other production costs.
Nor does it inspire a cozy feeling that these numbers were provided by a law firm who have recently developed a speciality in protecting filmmakers from IP lawsuits. But perhaps I'm still feeling drained by the 10th circuit thing.
Finally, earlier this week indieWIRE and The Film Panel Notetaker attended a benefit screening of Joe Berlinger's latest documentary Crude. Proceeds from the event will go towards Berlinger's mounting legal fees as he fends of a subpoena from Chevron who claim that they are entitled to his 600+ hours of footage to defend themselves against a recent class action lawsuit depicted in the film. From indieWIRE:
“What’s at stake is the basic trust between a journalist and a source. ... It is American media versus corporate interests and defense attorneys,” Berlinger said at IFC Center, previewing the battle that is brewing over the filmmaker’s footage. He called the coming battle an, “amazing squaring off of the media against corporations.”
“Outtakes are the same as a reporter’s notes,” responded WGA East President Michael Winship, on stage after the Stranger Than Fiction series screening in downtown Manhattan. Seated on the same panel, filmmaker Morgan Spurlock, who squared off against McDonalds in his own film, “Super Size Me,” also warned of the ramifications of a judgement forcing Berlinger to hand over his footage. Spurlock said it would send filmmakers and journalists down a path that would hinder news gathering and filmmaking. “It’s going to affect everyone,” Spurlock said.
Let's all balm our spirits with a happy little seizure, brought to you by the opening title sequence of Gaspar Noe's latest, Enter the Void: