IP Wars
posted by Deven Desai
YouTube has a good but not great take on Darth Vader’s little known brother, Chad. I wouldn’t watch all the way to the end but the first three minutes are solid and for any fan of the Star Wars films there are some good plays on the dialogue and scenes. Which leads me to a perhaps sad yet currently inevitable note. The IP Wars drone on and YouTube faces a copyright lawsuit.
Perhaps someday a young attorney or scholar will ask an aging IP attorney “You fought in the IP Wars?” with awe because we will have unraveled how to develop, and let’s face it, make money on information yet manage to keep the information free-flowing so that expression and education can flourish. In a sense I think that conundrum is what Professor Yochai Benkler highlights in his book the Wealth of Networks. As someone wrestling with these questions, I anticipate and welcome your thoughts on the big question but here are the details of the YouTube suit to give some context of one slice of the IP Wars and perhaps offer facts with which to test the possible solutions. In addition, thanks to Bruce’s entry Don’t Write Angry for noting when arguments become more yelling matches rather than explorations of what to do to fix the problem. Now on with the current episode of IP Wars.
Apparently someone posted the video of the Reginald Denny beating during the 1992 riot in Los Angeles. According to the article, Robert Tur, the man who made the film, has sued claiming that the posting hurts his ability to license the video and that YouTube has profited from more than 1,000 viewings of the film. It seems that rather than ask YouTube to take down the clip under DMCA provisions, Mr. Tur filed suit. YouTube removed the clip after it knew about the lawsuit.
Whether Mr.Tur really makes that much money from licensing would be interesting to know. I frankly had not thought of the video until the lawsuit and would not want to pay to see it. Furthermore, it seems that historians should be allowed to show the clip in its entirety but of course that position runs smack into fair use problems. Nonetheless, consider that a Saturday Night Live clip was a hit on YouTube. It had at least 5 million downloads (assumedly from many who did not see the show which in 2004 seemed pleased with peaks of around seven million viewers) but NBC asked that it be removed. NBC does sell the clip on iTunes but it also allowed the clip to be seen on its Web site in an embedded player. I wonder whether NBC just hates great, free advertising or whether it really believes it can make more money by aggressive policing of its IP.
July 19, 2006 at 5:13 pm
Posted in: Intellectual Property
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Responses (8)
Bruce Boyden - July 19, 2006 at 6:05 pm
Wow, the first 30 seconds or so are brilliant. It’s just kind of OK after that. For the date scene, I don’t know why they didn’t use the line, “A sister — you have a sister!”
On L.A. News, I don’t know how much revenue he makes, but he’s sued over the same video before: L.A. News Serv. v. Reuters Television Int’l, 149 F.3d 987 (9th Cir. 1998) (not fair use); L.A. News Serv. v. CBS Broad., Inc., 313 F.3d 1093 (9th Cir. 2002) (fair use).
Frank Pasquale - July 20, 2006 at 1:22 pm
What a great business model! Put out some moderately interesting blip, then sue everyone that tries to share or publicize it. Rather like patent trolling extending to (C) law.
Well, let’s hope Jessica Simpson (or at least her label) can lead the way forward:
http://news.com.com/2102-1025_3-6096350.html?tag=st.util.print
Deven Desai - July 20, 2006 at 2:00 pm
Frank, thanks for the heads up on Simpson and the possible shift in business models. I wonder whether the Yahoo! idea of personaliztion etc. will mean more advertising. I would think so though the in this case the idea seems to be that the song costs more because one can add one’s name to the song. In addition, it will be interesting to see whether Yahoo! starts to use this idea for most of the music or whether it is more of a teaser or only possible with the “add your name” gimmick.
Bruce Boyden - July 20, 2006 at 2:34 pm
I wouldn’t be so quick to make fun of L.A. News’s lawsuits. It’s not like he just happened to be flying around L.A. and caught the Denny beating — his “business model” is to go up in the air and film footage that he then sells to news organizations. Basically, he’s a free-lance photographer with a helicopter. Is that a viable business, or should we restrict such activity only to volunteers? Given the cost of helicopter fuel, etc., I’m not sure how many volunteers we would get. And if he has a right to be paid, then it seems like he has a right to sue to get paid.
Obviously it’s a difficult case because of the massive public interest in the news value captured in the recordings; and it’s made doubly difficult by the fact that that’s exactly the sort of thing he’s looking for.
Deven Desai - July 20, 2006 at 2:58 pm
So Bruce, you make a good point. But if one’s model is to seek newsworthy events and film or photograph them, shouldn’t there be an assumption that in choosing newsworthy items, one risks that absent complete copying (as may be the case here) some slice (perhaps large) might be needed and fair use might allow it depending on the facts.
Bruce Boyden - July 20, 2006 at 3:24 pm
Obviously the more a work touches on matters of public interest, the more it is going to be subject to criticism and commentary. And this particular video may have Zapruder-like aspects to it, which complicates the issue. But I think different newsgathering entities should be able to make claims against the appropriation of their work by other entities, even though it’s all news (assuming copyrightability, anyway, which is a whole other issue).
The interesting question in the latest suit is whether noncommercial YouTube users are the functional equivalent of Reuters Television. The cases I cite mention the commercial nature of the use as a fair use factor. I doubt we’ll get that far in the litigation, however.
Kaimi - July 20, 2006 at 4:43 pm
Perhaps the Denny lawsuit is really just the plaintiff’s way of saying to YouTube,
“Don’t be too proud of this technological terror you’ve constructed. The ability to destroy a planet (or post a widely downloaded clip) is insignificant next to the power of the Intellectual Property Laws. . .”
Kaimi - July 20, 2006 at 4:49 pm
“Don’t try to frighten us with your sorcerous ways, Lord Vader. Your sad devotion to that ancient IP regime has not helped you conjure up profits from your archived intellectual property, or given you clairvoyance enough to find a business model to–”
(Gasp. Gasp. I can’t breathe.)
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