Supreme Court

It Just Isn't Fair: Fighting over Copyright, Permission and Fair Use

I had no sooner published a piece about fair use (involving the NMPA and lyric sites) when I got upstaged by another fair use battle—this time between a start-up (or upstart?) toy company called GoldieBlox and the seminal rap group Beastie Boys.

The episode played out publicly, so I won't rehash all the specifics. Many good pieces were written about it (by Tim KenneallySimon Dumenco, the EFF's Corynne McSherryFelix Salmon and Blair Hanley Frank).

If you aren't familiar with the sequence of events, here's a recap: GoldieBlox created a video meant to empower girls, showing them creating a Rube Goldberg contraption instead of just playing with dolls. The end of the video contains an advertisement for the company's product, a toy designed to interest girls in engineering. The video contains a use of the Beasties Boys' composition "Girls", but with the original sexist lyrics replaced. Upon release, it immediately went viral, attracting attention from the Beastie Boys (and/or their publisher and/or their record label—it remains unclear who sent the actual communication). GoldieBlox then preemptively filed a motion for declaratory judgment, asking that their use be ruled "fair use", to which the Beasties Boys responded with an open letter wondering why they had never been asked permission. After a storm of publicity, GoldieBlox removed the version based on the Beastie Boy's composition and responded with its own open letter, suggesting that the company "[doesn't] want to spend our time fighting legal battles.”

While the situation resolved itself quickly, it highlights the pitfalls of the fair use provisions of US copyright law. These provisions are spelled out clearly in the law [PDF], but because they are subjective, it is difficult to determine what constitutes fair use without a fight.

Fair use fights are messy and expensive if they go to court. Because of the nature of the law, the creator of a new work must decide whether to take a chance on how their work will be judged. This is definitely not good for business or the arts, as it can inhibit creativity through preemptive censorship. However, art itself demands risk-taking and so there must be some balance to allow culture to flourish.

I agree with many that GoldieBlox' new recording represents a parody. The replacement lyrics are clearly transformative and provide commentary and criticism on the original version. If GoldieBlox had simply produced an audio-only recording, they could have released the song using a compulsory license and might've avoided the whole fight.

That said, GoldieBlox used their new recording in a video, a separate right reserved to copyright owners that requires a synchronization license. In fact, GoldieBlox didn't seek permission at all, deliberately using a copyright owned by a major artist as part of a advertising campaign designed to go viral when the Beastie Boys have said they will not allow their work to be used in such ways. GoldieBlox invited the entire battle for publicity's sake and attempted a preemptive lawsuit as a way to shut down debate. How is it fair that they can simply take what they want and profit from it?

One other note about the commercial nature of parodies: In the famous caseCampbell v. Acuff-Rose Music, Inc.[PDF],the Supreme Court held that the band 2 Live Crew's use of Roy Orbison's song "Oh, Pretty Woman" was fair use, writing in the opinion that a new song's commercial nature doesn't automatically preclude its protection as a parody. Taking things one step further, it is possible that even with the overt advertisement at the end, using the criteria in the law upon which fair use is judged, the video might have been ruled fair use should the fight have gotten to court.

Complicating this further is the irony that one of the writers, MCA (Adam Yauch), included provisions in his will instructing his estate to deny licenses of his works in advertisements, yet the group's album Paul's Boutique remains embroiled in lawsuits over the samples they used. Despite this, the Beastie Boys' popularity and credibility stems from their being at the vanguard of genre that uses sampling. Such reuse is important to art and culture's ability to flourish, but the law can get in the way, and it is increasing difficult for artists to sample as liberally has they once did.

This is the problem with fair use: it just isn't fair. All of these factors are weighed in the determination, and each can affect the outcome in unpredictable ways. While this matter was settled without a protracted court battle, the lack of a ruling means that no precedent has been set and unfortunately, any ambiguity as to what constitutes fair use will remain. Hopefully future cases will help clarify this important part of the law.

Aereo: Streaming into the future.

As I watch the lawsuit over the startup Aereo unfold, I can't help but notice the likelihood it will disrupt the television business in the same way that streaming services are disrupting the record business. The company's model has major implications for television broadcasters, and its fight has many similarities to others occuring in the music business.

If you're unfamiliar with the service, Aereo lets users rent a TV antenna (maintained by Aereo) and receive over-the-air (OTA) television signals. These signals are then streamed to the users' Internet-connected device or recorded to a DVR so they can be watched at a different time.

The premise may sound odd (Rent an antenna?), but it is rooted in several long-standing concepts. The first is that the FCC licenses public airwaves to television broadcasters on the basis that they transmit their signals over-the-air for free. Therefore, these transmissions are available to any user who has the equipment to receive them. (Before cable TV, using a "rabbit ears" antenna was the only way to receive television signals at all.) The second is that recording such broadcasts for non-commercial, home use is legal (technically, "fair use" under the Copyright Act, and decided as part of the US Supreme Court's landmark 1984 "Betamax" decision in Sony Corp. of America v. Universal City Studios [PDF]).

Taken together, this means that users can now easily receive and record live television broadcasts, allowing them to watch anywhere and at anytime they want. This may seem perfectly normal, but remember that live television has not had a big impact on the Internet because such use would be considered a "rebroadcast" or "public performance" that needs to be explicitly licensed.

Broadcasters are suing to prevent Aereo from offering their service, saying that Aereo's distribution of these broadcasts infringes on their copyrights. This will not be a short fight, but Aereo recently won an early battle as the Second Circuit upheld a denial of a preliminary injunction against them [PDF]. This poses a major problem for broadcasters, one big enough that Fox has threatened to remove their broadcasts from the airwaves if Aereo wins.

Why such a major disruption?

The money to be made in the content business oftentimes comes from interactions that are not seamless, when tollbooths are placed in the road between the content and the end user. For a long time, construction of these tollbooths was aided by the lack of technology or the cost of distribution. Yet companies are now increasingly able to build businesses based on technological innovations that remove these tollbooths or lower the cost of distribution. For broadcasters, Aereo represents a way around the traditional relationship between content provider and consumer, one that threatens the financial and distribution models they have in place.

The change in user acceptance of streaming content has to do with smartphone market penetration. We are becoming more and more comfortable with our phone being an entertainment device. As that idea becomes more and more prevalent, users will demand even more seamless operation from all content providers, and that will extend beyond phones to any device that people use to enjoy entertainment. Spotify's Daniel Ek was recently profiled on CNET talking about this as it relates to music.

The bottom line is that, as consumers come to expect a certain kind of experience on their phone, they will see all devices similarly. With TV, consumers haven't previously had this kind of flexibility, but Aereo makes it possible. This represents a threat to broadcasters, one they will have to meet head-on if they wish to stay in business.