Mr. desmoinesdem alerted me to a recent court ruling in Don Henley's copyright suit against Chuck DeVore for two web videos DeVore made during his U.S. Senate campaign in California. Ben Sheffner has been covering the lawsuit at the Copyrights and Campaigns blog.

Henley sued over web videos that set new lyrics to two of his songs. DeVore changed "The Boys of Summer" to "The Hope of November" in a video that mocked Barack Obama, and he changed "All She Wants to Do Is Dance" to "All She Wants to Do Is Tax" in a video that mocked Senator Barbara Boxer.

DeVore claimed fair use on the grounds that the songs he put in his videos were parodies. The problem for DeVore was that legally, "a parody comments on the work itself; a satire uses the work to comment on something else." DeVore wasn't rewriting lyrics like Weird Al Yankovic used to do to make fun of musicians. He was scoring points against Obama and Boxer. If you haven't paid for the rights to use a song, you have to meet a higher legal standard for satire than for parody.

You can download Judge James Selna's ruling here. Excerpt:

Even assuming that "parody-of-the-author" is a legitimate transformative purpose, the Defendants' songs do not satisfy the fair use analysis, as discussed below. "Tax" does not target Henley at all, and "November," which only implicitly targets Henley, appropriates too much from "Summer" in relation to its slight jab at Henley and risks market substitution for "Summer" or its derivatives.

DeVore had claimed he was mocking Henley as part of the liberal Hollywood elite, but Henley argued in one legal brief that he has given money to some Republican candidates, including John McCain. (Who knew?)

Selna agreed with the plaintiffs' claim that by using the Henley songs in their videos, DeVore's campaign supplanted the market for derivatives of the Henley songs, because "licensees and advertisers do not like to use songs that are already associated with a particular product or cause. [...] This injury is the very essence of market substitution."

While Selna granted the plaintiffs summary judgment on the issue of copyright infringement, he did not issue a finding on whether the infringement was willful. (If so, Henley would have a stronger claim for monetary damages.) Sheffner comments, "I assume there will be a jury trial on the issue of willfulness and damages, unless the parties are able to reach a resolution."

Selna rejected the plaintiffs' claim that DeVore violated the Lanham Act by giving people the wrong impression that Henley had endorsed DeVore's Senate campaign. Sheffner explained in this post why he thought Henley would (and should) lose that portion of the lawsuit.

Other candidates and campaign staffers should review this case before they decide to use copyrighted songs in web ads.

Mr. desmoinesdem alerted me to a recent court ruling in Don Henley's copyright suit against Chuck DeVore for two web videos DeVore made during his U.S. Senate campaign in California. Ben Sheffner has been covering the lawsuit at the Copyrights and Campaigns blog.

Henley sued over web videos that set new lyrics to two of his songs. DeVore changed "The Boys of Summer" to "The Hope of November" in a video that mocked Barack Obama, and he changed "All She Wants to Do Is Dance" to "All She Wants to Do Is Tax" in a video that mocked Senator Barbara Boxer.

DeVore claimed fair use on the grounds that the songs he put in his videos were parodies. The problem for DeVore was that legally, "a parody comments on the work itself; a satire uses the work to comment on something else." DeVore wasn't rewriting lyrics like Weird Al Yankovic used to do to make fun of musicians. He was scoring points against Obama and Boxer. If you haven't paid for the rights to use a song, you have to meet a higher legal standard for satire than for parody.

You can download Judge James Selna's ruling here. Excerpt:

Even assuming that "parody-of-the-author" is a legitimate transformative purpose, the Defendants' songs do not satisfy the fair use analysis, as discussed below. "Tax" does not target Henley at all, and "November," which only implicitly targets Henley, appropriates too much from "Summer" in relation to its slight jab at Henley and risks market substitution for "Summer" or its derivatives.

DeVore had claimed he was mocking Henley as part of the liberal Hollywood elite, but Henley argued in one legal brief that he has given money to some Republican candidates, including John McCain. (Who knew?)

Selna agreed with the plaintiffs' claim that by using the Henley songs in their videos, DeVore's campaign supplanted the market for derivatives of the Henley songs, because "licensees and advertisers do not like to use songs that are already associated with a particular product or cause. [...] This injury is the very essence of market substitution."

While Selna granted the plaintiffs summary judgment on the issue of copyright infringement, he did not issue a finding on whether the infringement was willful. (If so, Henley would have a stronger claim for monetary damages.) Sheffner comments, "I assume there will be a jury trial on the issue of willfulness and damages, unless the parties are able to reach a resolution."

Selna rejected the plaintiffs' claim that DeVore violated the Lanham Act by giving people the wrong impression that Henley had endorsed DeVore's Senate campaign. Sheffner explained in this post why he thought Henley would (and should) lose that portion of the lawsuit.

Other candidates and campaign staffers should review this case before they decide to use copyrighted songs in web ads.

Along with the 1996 Telecom Act, the Digital Millennium Copyright Act (DMCA) was one of the worst legacies of the Clinton years. Unlike the Defense of Marriage Act or the faux Welfare Reform Act, both the Telecom Act and the DMCA pretended to be forward looking bills that would usher us into a more prosperous 21st Century.

Rotten at the root, the DMCA continues to bear poison fruit. The latest is the ruling by the infotainment industrial complex' favorite judge Marylin Patel (the judge who killed Napster and inadvertantly the music industry in 2000) to ban Real DVD -- an innocuous technology that allows consumers to make personal copies of the DVDs they have purchased.

From PC World:

RealNetworks' RealDVD was handed a devastating blow yesterday as U.S. District Court Judge Marilyn Hall Patel realdvd copyright in a case pitting the two against each other regarding the right to copy films onto one's hard drive. She granted a preliminary injunction against sale of RealDVD, pending a trial over copyright infringement. A cluster of Hollywood honchos, including Paramount, Sony, Universal Studios, and Walt Disney filed suit against RealDVD back in September. Now RealDVD's site is a headstone: "RealDVD is Currently Unavailable."
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The argument stems from the Digital Millenium Copyright Act of 1998. Circumventing encryption technology on digital media was made illegal by the DMCA. According to Patel's decision, RealDVD broke through a DVD's Content Scramble System code in order to transfer movies onto hard drives.

But RealDVD was very stringent with its copying program. The basic package allowed for only a single digital copy to be placed on your hard drive. After paying extra licensing fees, you could transfer the digital copy onto as many as five other hard drives. Disc-based burning was never an option.

Meanwhile, programs such as the VLC Media Player flaunt the law and provide software that allows for real-time copying. So why is the MPAA hard up for RealDVD and not these other products? It seems to me that the MPAA has chosen a battle against RealDVD to set an example but is perhaps ignorant of the proliferation of DVD-ripping programs available.
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It's sad that RealDVD, with its sophisticated and lawful approach to DVD-copying, had to swallow the wrath of the MPAA. It's also clear that the DMCA needs to be updated to reflect the changes in media distribution 11 years later. It's perfectly legal to rip music from a CD and upload it onto an iPod for personal use; why can't a person do the same with their own copies of movies? The assumption is that everyone using a program such as RealDVD is a criminal bent on ripping as many Netflix movies as possible, rather than a law-abiding citizen who simply wants to watch flicks on the go. For an organization that supposedly has its finger on the pulse of moviegoers, the MPAA strikes me as horribly distrustful and curmudgeonly in its approach to modern times.

You're probably going, so what? Let's talk about health care. Not so fast.

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This is hilarious.  

So, I was on the NRCC's website to see what they are up to, and I see this video called "Nancy Pelosi's Swamp Problem." Sounds like a hard-hitting piece of oppo, cleverly put into video format for the interweb, right?

So, I go ahead and click on it, hoping for something amusing, and get this:

If it weren't for those darn laws!

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I don't have a good strategy on copyright reform, but it's pretty clear that there's an alignment between the progressive netroots and the copyright reformers.  Progressive Democrats don't like unfair and illegal strangeholds on free speech under the guise of copyright.  This Larry Lessig Op-Ed on Viacom suing youtube is worth reading.  Viacom's stranglehold on the political and legal process has made it impossible to get clear rules on copyright.

And this is just the way the big content companies want it - for instance, traditional content companies regularly break the law on takedown notices, which is an obvious suppression of free speech.  Meanwhile, digital rights management causes 75% of tech support calls for one large online music retailer, pirates themselves are losing out because of file-sharing, and artists continue to go uncompensated by large conglomerates and new unfair touring arrangements.

Liberals love our free speech.  The current arbitrary and punitive copyright system, which tilts in favor of large content companies at the expense of most artists, creators, and citizens, stands in our way.  It should be dramatically reformed, and Democrats should lead.  My guess is that parts of the media industry are going to have to come around first, and so a lot more conversation and organizing work is going to be required.

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