New take on an old (infringing?) idea

I read about a recently-published patent application from Apple that will allow an audio device (presumably an i-Device) to “self-censor” explicit content.  The application is titled “Management, Replacement and Removal of Explicit Lyrics during Audio Playback,” and you can read the application HERE.

Figure 1 from the patent application

Here is the abstract from the application:

Unwanted audio, such as explicit language, may be removed during audio playback. An audio player may identify and remove unwanted audio while playing an audio stream. Unwanted audio may be replaced with alternate audio, such as non-explicit lyrics, a “beep”, or silence. Metadata may be used to describe the location of unwanted audio within an audio stream to enable the removal or replacement of the unwanted audio with alternate audio. An audio player may switch between clean and explicit versions of a recording based on the locations described in the metadata. The metadata, as well as both the clean and explicit versions of the audio data, may be part of a single audio file, or the metadata may be separate from the audio data. Additionally, real-time recognition analysis may be used to identify unwanted audio during audio playback.

That description immediately reminded me of an old copyright infringement case that was brought on behalf of Hollywood movie directors who objected to a service called “CleanFlicks.”  CleanFlicks would purchase DVDs of movies, edit out the “objectionable” content, and then sell or rent the “clean” versions.  Ultimately, this practice was considered copyright infringement.  Here’s a brief analysis of the case from the Copyright Office.  From the analysis:

The court held that public distribution of edited versions of plaintiffs’ films for the purpose of eliminating objectionable content did not constitute fair use. It ruled that the edited film versions were not transformative because they added nothing new to the originals. It further held that the “amount and substantiality” factor weighed against a finding of fair use because the movies were copied in their entirety for non-transformative use. Regarding the fourth factor, plaintiffs claimed that there was no adverse effect on the market for the films because they maintained a one-to-one ratio between original and edited films, and that but for their editing, the defendants would not have sold those particular original copies. The court, however, stated that this argument ignored the defendants’ “right to control the content of the copyrighted work,” and further remarked that “[w]hether these films should be edited in a manner that would make them acceptable to more of the public … is a question of what audience the copyright owner wants to reach.” The court also found that editing the versions as a form of comment or criticism was a public policy argument that was not appropriately raised in the copyright context.

But, Apple’s technology might not be making a new copy of a song to then censor, rather, it’s merely bleeping or silencing-out a portion, so there is a decent argument that this will not be a copyright issue.  “Moral rights,” which can protect the integrity of (or cursing in) a work, are generally not recognized in the U.S., so the mere act of censoring a work isn’t necessarily copyright infringement.  But, Apple’s technology is similar to the facts of a 1970’s case wherein ABC was sued by the people behind the Monty Python program based on ABC making edits to Monty Python re-broadcasts.  There, the court found that ABC might actually be violating the Lanham Act, which forms federal trademark and unfair competition law.  By editing the episodes, ABC misrepresented the source of the episodes.  That is, by screwing around with the way that Monty Python’s writers intended the episodes to look, ABC damaged Monty Python because viewers might think that the edited, “less good,” episodes originated with Monty Python.  This is similar to a line of cases where Rolex has successfully sued after-market jewelers who add “bling” to Rolex watches.  Rolex argues that they would never add a dial full of diamonds or other tacky embellishments, and when jewelers do so, they damage the Rolex brand because consumers might think that Rolex was the source of the tackiness.

In sum, Apple may not even bring this technology to market, and even if they do, I would imagine that for artists to have their music on iTunes (the patent anticipates use in streaming environment), they will have to agree to allow the use of the technology.  But at the end of the day, this may not be legally actionable anyway.  Artists typically create a “clean” mix of a song.  I wonder if Tipper Gore would have approved?

Apple’s full application may be downloaded HERE.

(Bonus thoughts:  the idea of piecing a song together from multiple audio streams located at different sources is interesting.  The patent application doesn’t just address adding a “beep” in place of a dirty word.  The “clean” music can be seamlessly spliced into the song on-the-fly.  As we’ve recently seen with Kanye tinkering around with edits and mixes of songs from The Life of Pablo after its release, this technology may have some positive creative merit – i.e. custom MP3/audio files depending on what time of day the audio is streamed or downloaded.)

Copyright Infringement – The “Activist” Defense?

Like many almost-40-year olds with a perpetual college-aged sense of humor, I enjoy Seth Rogen’s slacker/stoner humor.  When I found out that the stars of personal-favorite Pineapple Express were reuniting for The Interview, I was excited to go see it (or at least wait until it hit my local Redbox).  However, as we all know, North Korea (allegedly) hacked into Sony’s servers and released embarrassing and confidential documents, thus setting off an international debacle worthy of, well, another Rogen/Franco movie.  Depending on whom you believe, the hackers’ warnings initially caused Sony to drop the film’s release, only to have the President of the United States dictator-shame Sony into eventually allowing the movie to be release both on theater screens and via streaming services such as YouTube and Google Play.   The sequel has literally written itself.

Once the movie was available through my Roku, my wife and I rented it on December 27, 2014.  We didn’t care if the movie was good or not, we rented it as a statement.  It was our Amurrican duty.  Fortunately, we enjoyed the movie, and it was worth the 6 bucks to be able to tell our kids and grandkids that “we were there” and even took a picture:


Many others must have liked it (or at least bought into the civic-dutiness of it) as well, because by the end of December, the movie had reportedly brought in $15 million dollars from streaming alone.  That has prompted interesting case studies on how the (alleged) North Korean hack may have changed movie distribution forever.  See:

So that brings me to the point of this post.  I am being facetious regarding the movie’s value as a real statement on North Korea and dictators in general.  This is not a Michael Moore documentary.   It’s not Morgan Spurlock.  This isn’t going to be shown (or read) in classrooms like To Kill a Mockingbird.  It’s a Seth Rogen stoner flick cut from the Trey Parker/Matt Stone Team America:World Police cloth.  Does it have some message about a free press and the con of a dictatorship?  Yes.

But is it worthy of making 100,000 copies on DVD and USB drives to airdrop into North Korea?   No.  Yet that is what the Human Rights Foundation proposes to do.  This group has apparently been doing this for years with other literature and movies, including the aforementioned Team America, Titanic and Braveheart.  See:

It is not clear from that group’s webpage if the money is used to legally purchase the movies that are dropped (along with DVD players) into North Korea, but the AP article states that the group, which is based in the U.S., is putting The Interview on DVD and USB flash drives with Korean subtitles.

Here’s where the law-stuff comes in:  Human Rights Foundation is therefore making a derivative work of The Interview.  Unless Sony has authorized these 100,000 copies, they are likely infringing derivative works.  There is no “activist” or “humanitarian” defense, and while there could be some stretched fair use arguments, this just seems like basic copyright infringement.  Of course, every plaintiff must pick his/her/its battles.  While Sony would be foolish to publicly denounce this seemingly well-intended act, I would not be surprised if Human Rights Foundation is contacted before the Great Balloon Release gets underway.

But even if it were not copyright infringement, would the average isolated North Korean who is hit on the head with a descending DVD player and copy of The Interview really understand the context of Seth Rogen smuggling poison in his anus to eventually try and kill Kim Jong Un? Would they understand James Franco’s mild Stockholm Syndrome/he-really-gets-me bro-fest with the Supreme Leader?  I don’t know.  Perhaps if the movies contain some back-story and context, then movies like Team America and The Interview could serve some nation-(un)building purpose, and that sort of context and additional material could be just the thing to bolster a fair use argument.  However, on the surface, it appears that the Human Rights Foundation’s plan is just setting itself up for a giant copyright infringement case given its U.S. presence and stated intent to make 100,000 copies.  Should Sony be entitled to statutory damages, willful copyright infringement can subject the liable defendant to up to $150,000.  This is a per-work award, so we are not talking about 100,000 x $150,000, but it’s still a decent amount.  (Sony could also elect actual damages instead of statutory damages, but if Human Rights Foundation is only distributing the copies overseas into North Korea, I imagine that actual damages will be virtually $0.)

Ultimately, the Sony hack, the unorthodox release, and the subsequent dialog that has come about have given The Interview more stature than it would have otherwise achieved had it been simply released as any other Christmas-day film, and I look forward to seeing the ongoing ripple effects.

20 Years Ago 2 Live Crew, A Rude Rap Song And The Supreme Court Helped Clear The Way For The Modern Internet

20 Years Ago 2 Live Crew, A Rude Rap Song And The Supreme Court Helped Clear The Way For The Modern Internet.

20 Years Ago 2 Live Crew, A Rude Rap Song And The Supreme Court Helped Clear The Way For The Modern Internet (via Techdirt)

A couple months ago, we had a blog post celebrating the 30th anniversary of the Supreme Court’s decision that showed the Sony Betamax was legal, an important ruling that helped clear the field for innovations that could, potentially, be used for infringement…

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Blue Man Group Wishes You a Monotone Happy Birthday

I went to see the Orlando Blue Man Group show last week as part of my wife’s employer’s holiday party.

Candidly, I wasn’t very enthusiastic because the local Blue Man Group commercials are kind of annoying.  However, the show was absolutely amazing.  The sounds and visuals were superb – never has HD been put to better use.  And the message, although a bit forced, was relevant in today’s (un)social media environment – human interaction, it’s a good thing.

As part of the pre-show experience, several LED boards flash messages to the audience.  Most of it is just silly stuff that you would roll your eyes at if you weren’t in the theater, but one caught my eye.  I’m paraphrasing, but it was something along the lines of:

“It’s John Doe’s birthday today.  Let’s wish him a happy birthday.  Don’t sing.  Just speak.”  And then the lyrics to Happy Birthday scrolled by while the audience dutifully spoke them in a unified, monotone voice.

While I’m sure many in the audience knew the reason for such a command, I bet that many thought it was just Blue Man Group doing their artsy Blue Man Group thing.

Here’s the secret:  They ask for the audience to speak it rather than sing it because Warner/Chappell has been claiming copyright ownership over the “Happy Birthday” song and has been collecting licensing fees from those who dare to use the tune in public!

So, artsy or not, Blue Man Group simply doesn’t want to get sued for inducing an audience to infringe copyright.

There may be a silver lining though.  Some folks have challenged Warner/Chappell’s ownership claims, and a California court may begin unraveling the issue soon.


Until then, don’t sing, just speak.

Copyright First Sale Doctrine – It Lives

Great news from the Supreme Court today.  I’m still digesting the opinion, so here’s a link to ars technica, who has already digested it:

And more from SCOTUSblog if you’re feeling especially nerdy:

Ronald Mann, Opinion analysis: Justices reject publisher’s claims in gray-market copyright case, SCOTUSblog (Mar. 19, 2013, 12:22 PM),


Prenda Law, Meet Judge Otis D. Wright

Mark my words, the court hearing that took place yesterday regarding the behavior of Prenda Law in litigating mass-Doe copyright infringement cases will become a dramatic movie scene one day.  I bet there are already screenwriters out there putting the finishing touches on the script.

Read Ken White’s excellent play-by-play of the hearing, as presented on TechDirt.

One blog post is not enough to provide the back-story on Prenda Law and the mass-Doe litigation nightmare, so you might want to check out these links first:

And my previous presentation on mass-Doe infringement gives a basic overview of the litigation tactic.

Six Strikes Begins

As a follow-up to my previous post on this topic, the Six Strikes Copyright Alert System (a/k/a the “avoid the ‘hassle’ of the DMCA” program) has started.

ars technica has a good write-up on the latest news, and they even obtained some sample “strike notices” from Comcast:

Have Your Snail-Mail E-mailed

Interesting business model:  Company will go to your house, grab the mail out of your mailbox, scan it, and make it available to you digitally.

Copyright issues?  If the company is scanning copyrighted material, which it no doubt is, would all of the scanning qualify as fair use?  I think most of it would, but what about scanning a magazine or postcard artwork that the copyright owner also sells in a digital format?  For example, SPIN magazine comes in paper form as well as a great digital iOS app.  Would converting the paper form into digital format via this new service still be fair use?

This should be fair use, but major media companies have a near perfect track record of freaking-the-eff out over any new content delivery systems that they did not expressly authorize.

Six Strikes Plan Finally Set to Arrive?

I gave a CLE presentation to the Orange County Bar Association’s IP Committee earlier this week.  The topic included showing how the adult entertainment industry has been using techniques first used by the mainstream recording and movie industries to combat online copyright infringement.  You can see an edited version of that presentation HERE.  The first part of the presentation showed how the RIAA abandoned its litigation strategy of suing large volumes of “John Doe” defendants.  By the RIAA’s own admission, the technique was ineffective, and it resulted in negative press and public backlash.

As this 2008 Wall Street Journal article explained, the RIAA abandoned the mass-Doe litigation strategy in favor of partnering directly with ISP’s in a quid pro quo arrangement that essentially bypasses the Notice and Takedown protocol established by the DMCA.  The plan will allow copyright owners to interface directly with the participating ISP’s, who will then undertake the burden of issuing “strikes” or “copyright alerts” to customers.  The plan is based around a 6-strikes protocol wherein each strike against a customer will trigger increasingly more severe penalties.  There has already been a LOT written about the details of the plan, so I won’t repeat that commentary here.  The important thing to know is that the strikes start with “education” as the goal and then progressively move to “mitigation” measures, such as throttling a customer’s bandwidth or terminating their account with the ISP.  You can review the entire “Memorandum of Understanding” between the participating ISP’s and content owners here: Six Strikes-Memorandum of Understanding.

It’s now the end of 2012, and the plan may finally be implemented after long periods of delay.

There has been a lot of criticism over how the plan was devised – i.e. little public involvement and closed-door meetings with government officials.  There is also valid criticism regarding how the plan presumes guilt over innocence.  However, even with these valid concerns, the plan does not seem that bad.  In fact, the plan seems like a decent implementation of something the DMCA requires of service providers anyway; namely, that the service provider “has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”  See 17 U.S.C. § 512(i).  This “repeat infringer policy” requirement is not well-defined in the DMCA.  The only guidance within the statute is the quote that I just pasted in from section 512(1).  Since this is a threshold requirement for a service provider to take advantage of the DMCA safe harbors, there are many cases wherein a court has had to determine whether or not the service provider has reasonably implemented a repeat infringer termination policy.  The cases show that this is a case- and fact-specific determination that depends on the technology used by the service provider and other factors that may not be uniform from case-to-case.

The Six Strikes plan seems to create some uniformity among the participating ISP’s in implementing (or creating) a repeat infringer policy.  While the plan does not mandate that a service provider terminate a user’s account after the 6th strike, I believe that is the unwritten goal.  But, frankly, presuming that the “strikes” or “copyright alerts” are based on good faith allegations infringement, then the plan is actually less oppressive than other repeat infringer policies that I have seen.  Maybe I’m being naive, but I just don’t see this as the evil scheme some media outlets are painting it to be.  It’s essentially “forcing” (by voluntary agreement) ISP’s to do what they already have to do if they want safe harbor under the DMCA.

Good recent article describing the plan and the upcoming roll-out:

UPDATE:  TorrentFreak just posted information regarding how AT&T will implement the plan.

Mass Doe and Intermediary Copyright Infringement Lawsuits: Shakedown or Swift Justice?

I gave this CLE presentation to the Orange County Bar Association’s IP Committee this week.  As with most of my PowerPoint presentations, you can’t get the full effect of the overall presentation from the slides alone – the slides generally just cue things that I talk about.

But, you might find it interesting:

Mass Doe and Intermediary Infringement-Fall2012-public

And here’s a link to the other material that I referenced and/or used during the presentation: