Jonathan Band's Techdirt Profile

Jonathan Band

About Jonathan Band

Posted on Techdirt - 12 January 2017 @ 06:05pm

Software Copyright Litigation After Oracle v. Google

Many observers, including me, predicted that the 2014 decision of the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Oracle America v. Google would provoke a new wave of litigation concerning copyright and interoperability. In particular, we worried that the decision would encourage dominant vendors to bring copyright claims against competitors that replicated interface specifications for the purpose of interoperating with the dominant vendors’ products. We were right.

Sure enough, Oracle America has factored into at least four cases so far. One of these cases settled, one is on appeal, and the other two likely will be appealed in the near future. The latter two cases also involve patent claims, so appeals will be heard by the CAFC. (The CAFC has nearly exclusive appellate jurisdiction over cases with patent claims.) One can assume that the plaintiffs added the patent claims to ensure CAFC jurisdiction.

GDC v. Dolby Laboratories

This is the case that settled. Dolby Laboratories provides advanced motion picture theatre sound systems. GDC Technology develops software and hardware that interoperates with the Dolby systems. Dolby facilitated this interoperability by making its interface specifications available to GDC. It appears that Dolby stopped providing this information after it acquired Doremi, a media server manufacturer. Evidently, this acquisition made GDC a more direct competitor. Emboldened by the CAFC’s Oracle America decision, Dolby demanded that GDC stop using Dolby interface specifications to interoperate with Dolby products. Furthermore, Dolby insisted that GDC cease telling customers that GDC had the right to use this interfaces information to interoperate with Dolby products.

Dolby’s conduct prompted GDC in April 2016 to bring a declaratory judgment action in federal court in California against Dolby Laboratories seeking a declaration that Dolby does not own a copyright in the “protocols and interconnection codes” Dolby developed for digital cinema systems. In the alternative, GDC sought a declaration that fair use permitted it to use the specifications for the purpose of achieving interoperability. The parties settled the dispute in November 2016. According to the joint press release, “as part of the resolution, GDC will dismiss its lawsuit against Dolby, and GDC and Dolby will grant each other licenses that will allow their respective theater management systems to interoperate with the other party’s digital cinema servers.” The other terms of the settlement agreement were not made public.

SAS Institute v. World Programming

This case currently is on appeal to the Fourth Circuit, and has the most complex procedural history. The district court ruled that the input and output formats the defendant copied were not protectable under copyright, but found that the defendant breached license restrictions on reverse engineering. A jury subsequently assessed damages of $26 million, which the court then trebled to $79 million under North Carolina’s unfair trade statute.

SAS, a company based in North Carolina, creates an integrated suite of business software products known as the SAS System. The SAS System allows users to perform a variety of data access, management, analysis, and presentation tasks. The SAS System can run on various kinds of computers ranging from PCs to mainframes. Users can perform tasks on the SAS System by writing programs in the SAS Language. Additionally, SAS developed a version of the SAS System called SAS Learning Edition to help users learn how to program in the SAS Language.

World Programming Limited (“WPL”), a U.K. company, developed World Programming System (“WPS”), which can run SAS Language programs and produce similar outputs. Thus, WPL provides users with a competing platform on which they can run the programs they have written in the SAS Language, thereby avoiding being locked-in to the SAS environment.

To develop WPS, WPL reverse engineered copies of the SAS Learning Edition. However, the license under which WPL obtained SAS Learning Edition prohibited reverse engineering of the software. It appears that WPL’s development activities occurred in the U.K., but it distributed its software in the United States.

SAS sued WPL in the U.K. in 2009 and in the U.S. in 2010. The U.K. case proceeded more quickly. The U.K. High Court requested guidance from the highest court in the European Union, the Court of Justice of the European Union (“CJEU”), on whether software functionality, programming languages, and data formats were protectable under the EU Software Directive. The CJEU ruled in 2012 that these elements were not protectable. On the basis of this ruling, the U.K. court entered final judgment for WPL in 2013.

In April 2014, WPL moved for summary judgment in the U.S. action in North Carolina, arguing that the U.K. judgment had preclusive effect on many issues under theories of comity and collateral estoppel. In other words, WPL argued that SAS couldn’t re-litigate in the United States what it had already lost in Europe.

The district court ruled on the summary judgment motion in October 2014. The district court held that it was not bound by the U.K. court’s conclusion that the EU Software Directive rendered unenforceable the SAS Learning Edition license terms restricting reverse engineering. This is because the district court found that North Carolina law differed significantly from EU law on the question of the validity of the contractual provisions prohibiting reverse engineering. Thus, the district court granted summary judgment to SAS on its breach of contract claim.

With respect to SAS’s copyright infringement claim, the district court refused to give preclusive effect to the U.K court’s ruling that copyright did not protect the program elements WPL copied on the ground that WPL failed to demonstrate the similarity of U.S. and U.K. law on this issue. This is a questionable ruling. The U.K. court and the CJEU based their decisions on the Software Directive’s articulation of the idea/expression dichotomy. The idea/expression dichotomy is a fundamental principle of copyright law worldwide, including U.S. copyright law. Therefore, there is no reason to conclude that a program element the CJEU considers to be unprotectable under Article 1(2) of the Software Directive also is not protectable under section 102(b) of the U.S. Copyright Act.

Despite refusing to grant preclusive effect to the U.K. court’s determination that WPL’s copying did not infringe, the district court ultimately reached the same conclusion based on its own analysis of U.S. copyright law. It was undisputed that WPL had no access to SAS’s source code, and thus WPL did not copy any SAS code, nor the structure, sequence, and organization of that code. Instead, SAS based its copyright claim on WPL’s copying of the SAS System’s input and output formats. The district court rejected the claim, reasoning that SAS in essence was “asking the court to find that defendant’s software infringes its copyright through its processing of elements of the SAS Language….” This meant that “plaintiff seeks to copyright the idea of a program which interprets and compiles the SAS Language….” The court refused to allow such broad protection.

SAS resisted the conclusion that WPL did not copy protected expression by arguing that “this case is on all fours” with Oracle America. The court rejected this argument. The court noted that in Oracle America, Google had copied strings of Java code. Here, by contrast, “there is no evidence that defendant has copied specific strings of SAS language, or specific strings of source code for plaintiff’s software, only that its software can function with these SAS Language elements.”

A trial was held on damages for WPL’s breach of the SAS Learning Edition license; fraudulent inducement in obtaining the Learning Edition; and violation of North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”). In 2015, the jury found SAS was damaged by WPL’s breach of the license in the amount of $26 million; WPL fraudulently induced SAS to enter into the license agreement; and WPL’s conduct violated the UDTPA. On account of the violation of the UDTPA, the district court trebled the actual damages to a total of $79 million.

WPL and SAS cross-appealed. Because SAS did not bring any patent infringement claims, the appeal will be heard by the Fourth Circuit rather than the CAFC. SAS and its amici, Mathworks and the Business Software Alliance, have recently filed briefs. In their briefs, SAS and its amici completely ignore what the copyright aspect of this case is really about: whether copyright enables SAS to lock its users into the SAS System after they have invested millions of dollars writing their own programs in the SAS Language.

Synopsys v. ATopTech

In our third case following Oracle America, a jury in California found that the defendant infringed the command set in the plaintiff’s software. Because the case also involves patent claims, the CAFC will hear the appeal of this dispute as well.

Both Synopsys and ATopTech develop software for the “place-and-route” function in the design of computer chips, i.e., software that plans the layout of a chip and the electrical connections among its various components. Synopsys also produces “sign-off” or “static timing analysis” software, which checks the timing of the chip design created by the place-and-route software.

Synopsys claimed in federal court in California that ATopTech had copied into ATopTech’s place-and-route product, Aprisa, part of the command set from Synopsys’s sign-off product, PrimeTime. Command sets include the names and syntax of commands, options, parameters, variables, objects, and attributes. ATopTech filed a motion for summary judgment that it did not copy protectable expression, but the court in a terse ruling found that Synopsys “raised a triable issue” as to whether the copied elements were expressive. Similarly, the court found there were triable issues relating to ATopTech’s merger and fair use defenses. After trial in March 2016, the jury found that ATopTech infringed Synopsys’s copyright in its command set, and awarded Synopsys $30 million in damages.

The court then conducted a bench trial on ATopTech’s equitable estoppel defense. ATopTech argued that Synopsys encouraged its usage of the command set “in order to meet customer demand for improved interoperability between place-and-route and sign-off products when the two types of products are offered by different vendors.” The court denied the defense, finding that there was no evidence that Synopsys had actual or constructive knowledge that ATopTech had copied the command set. The court also rejected ATopTech’s assertion that Synopsys by its conduct misled ATopTech to believe that it would not assert its copyright in its command set.

As noted above, Synopsys brought patent infringement claims against ATopTech in addition to its copyright claims. This means that any appeal in this case will also be heard by the CAFC.

Cisco v. Arista

In our last post-Oracle America case, a jury in California recently found that the Cisco command line interfaces copied by Arista were not protected by copyright under the scenes a faire doctrine. Because Cisco also brought patent claims against Arista, the CAFC will hear this appeal as well.

Arista Networks develops switches and other network products that compete with the market leader, Cisco Systems. In 2014, after the CAFC’s decision in Oracle America, Cisco sued Arista for allegedly copying 500 of Cisco’s command line interface (CLI) commands when developing its EOS network operating system. The CLI is the primary mechanism for network engineers to interact with switches and routers in which Cisco operating systems are installed. The 500 commands consist of two, three, or four words reflecting multi-level textual hierarchies. Before trial, the district court ruled that four “building blocks” of the CLI (the multiword command line expressions, modes and prompts, command responses, and help descriptions) could be protected as a compilation, and left it to the jury to consider whether merger or scenes a faire rendered Arista’s copying noninfringing. The court further ruled that because the individual elements of each of these building blocks were not protectable, the compilations were entitled only to thin protection. Under Ninth Circuit precedent, this meant that infringement could be found only if there was virtually identical copying.

At trial, Arista’s lawyers — who also represented Google in its litigation with Oracle America — argued that the CLI was an industry standard Cisco encouraged others to use. Arista raised three defenses: merger, scenes a faire, and fair use. In December 2016, the jury rejected the merger and fair use defenses, but agreed that Arista’s use did not infringe under the scenes a faire doctrine. Under the scenes a faire doctrine, courts deny protection to expression that is standard, stock or common to a particular topic or that necessarily follow from a common theme or setting. Granting copyright protection to the necessary incidents of an idea would effectively afford a monopoly to the first programmer to express those ideas.

As noted above, any appeals in the case will be heard by the CAFC because Cisco’s complaint also alleged patent infringement (a claim the jury rejected).

Of the three cases that did not settle, two will be appealed to the CAFC. Given the random nature of judicial assignments, there is a good chance these appeals will be heard by different panels from that in Oracle America. Hopefully these panels will not feel too constrained by the Oracle America opinion. After all, CAFC panels often disagree with one another in patent cases.

(These cases, and the Oracle America decision, are discussed in greater detail in my book Interfaces on Trial 3.0: Oracle America v. Google and Beyond.)

Republished from the Disruptive Competition Project

Posted on Techdirt - 6 March 2015 @ 06:16pm

Will The Vulcan Salute Live Long And Prosper? The Rush To Lock Up 'Cultural Expression'

What does Leonard Nimoy’s “Vulcan salute” have to do with European newspaper headlines? They both might one day be regulated by new international intellectual property rules, if some have their way. One might think that what constitutes “intellectual property” is set in stone, but it isn’t.  Around the world, different interests are lobbying for governments to create new types of intellectual property all the time.

As DisCo has covered before, news publishers in Europe and elsewhere are currently pushing for the creation of new IP rights in newspaper headlines, so that online sites can be forced to pay for the privilege of quoting or linking to news coverage. Spain and Germany have already created these rights, and there is pressure in Brussels for a pan-European rule.

At the same time, for more than a decade there have been efforts within the World Intellectual Property Organization to create rights in “traditional cultural expression” (which, as explained below, may include the hand gesture on which Leonard Nimoy based the Vulcan salute). Some indigenous communities are distressed about the commercial exploitation of their folklore and other forms of cultural expression by “outside” entities. In a desire to (a) prevent uses that they believe are disparaging and (b) regain control over an important part of their identity, these communities have lobbied for a treaty that would require the creation of intellectual property rights in “traditional cultural expression.”

Concerns have been raised about the scope of the draft treaty. If adopted in its current form, critics say, the treaty could interfere with cultural life around the world, pulling out of the public domain material that is incorporated in countless novels, paintings, films, sculptures, operas, and other musical compositions. This is because these works are based on stories, legends, dances, rituals and other forms of expression that the treaty could protect without a limitation on term.

How does this relate to Leonard Nimoy’s Vulcan salute? The famous actor’s death last week provoked extensive discussion of his contribution to popular culture, including the famous Vulcan salute used by his character Spock in the Star Trek television series and movies. The Vulcan salute (hand raised with the palm forward and the thumb extended, while parting the fingers between the middle and ring finger) could violate the exclusive rights that a treaty on traditional culture expression would create. This is because Nimoy, according to his autobiography, based the Vulcan salute on the hand gestures in the priestly blessings he saw in synagogue as a child.

The priestly blessing is an elaborate ritual performed during the Jewish worship service by men who believe they are descendants of Aaron, the High Priest and Moses’s brother. These men are referred to as Kohanim (Hebrew for “priests”). At the beginning of the ritual, the hands of the Kohanim are washed by the descendants of the tribe of Levi, the Levi’im. The Kohanim then remove their shoes and stand up in front of the congregation. They cover their heads with their prayer shawls, turn towards the congregation, and raise their hands (underneath the shawls) in what is now popularly referred to as the Vulcan salute. With the fingers and thumbs spread in this manner, each hand looks like the Hebrew letter shin, which is the first letter of the word “Shaddai,” a name for God. The Kohanim then recite the words of the priestly blessing set forth in the book of Numbers: “May the Lord bless you and guard you; may the Lord make His face shed light upon you and be gracious to you; may the Lord lift up His face to you and give you peace.” (If the words sound familiar, that’s because the song “Sabbath Prayer” in Fiddler on the Roof is based on them. It’s also Solemn Blessing #10 in the Roman Missal used by Catholics.)

Although the words of the priestly blessing derive from the Old Testament, and thus are over 2,500 years old, the hand gesture probably developed later. It is described in the Shulchan Aruch (Hebrew for “Set Table”), a codification of Jewish law first published in 1565, thus indicating that it was in wide use 450 years ago. Currently, the priestly blessing is conducted daily in traditional Sephardic congregations, and on holidays in traditional Ashkenazic congregations.

Although no one seems to have objected to Nimoy’s adaptation of the gesture for his Vulcan character, the hand gesture of the priestly blessing may nevertheless fall within the scope of the draft treaty. Traditional cultural expression includes actions such as ceremonies and rituals. The treaty’s protection would extend to the traditional cultural expression created, expressed, and maintained, in a collective context, by the treaty’s beneficiaries. The class of beneficiaries remains in flux. The treaty refers to “indigenous peoples” and “local communities and nations” without defining any of these terms. These terms may encompass traditional Jewish communities. Moreover, the treaty appears to allow national law to determine which communities are beneficiaries. One could easily imagine Jewish communities in some countries (e.g., Israel and the United States) successfully lobbying for the treaty’s protection.

Under the treaty, the rights in the traditional cultural expression would be collectively administered by a “competent authority” for the benefit of the members of the beneficiary community. The competent authority would have the authority to license the use of traditional cultural expression and distribute any resulting compensation. Although Nimoy was Jewish, it is unlikely that the treaty would have permitted him to use the hand gesture in a non-traditional way such as the Vulcan salute in Star Trek without the approval of the competent authority. And the treaty certainly would not have permitted the unauthorized use of the hand gesture by any Vulcans played by non-Jewish actors. The current draft of the treaty does not include a grandfather clause, so if the treaty were adopted in the future, the competent authority in each country would be able to prevent the further dissemination of existing Star Trek works containing the Vulcan salute, as well as the use of the salute in future films.

Folktales permeate modern Western culture, from Disney films to Lord of the Rings to the Twilight series to Wagner’s Ring of Nibelung to Tchaikovsky’s Swan Lake. Thus, it is no surprise that the treaty on traditional cultural expression has little support among the developed countries and WIPO is unlikely to adopt it soon, if ever. But this just highlights the fact that what receives intellectual property protection is a policy choice, rather than a reflection of natural law. As a result, types of protection vary across countries. For example, the “ancillary rights” that restrict newspaper snippets in Europe have received no traction in the United States. Similarly, Congress rejected the attempt by large publishers to import the EU Database Directive’s protection for non-original databases a decade ago. This policy decision has allowed U.S. researchers to engage in enormously productive text and data-mining, which the Database Directive prevents their colleagues in the EU from performing.

Just as policymakers were confronted with a choice over creating database rights, they may one day be presented with a similar choice about news snippets, or hand gestures, and the choices they make could have a considerable effect on culture and communication worldwide.

Republished from
the Disruptive Competition Project

Posted on Techdirt - 13 February 2015 @ 11:37am

Fair Use: The Foundation Of Jon Stewart's Success

Jon Stewart’s announcement on February 10 that he will be retiring from The Daily Show later this year has been met with tributes to his comic genius and his impact on political discourse. But these tributes have overlooked the legal doctrine that has enabled Stewart to be so effective: fair use. (This is my second post this week about the importance of fair use to popular culture; on Tuesday I wrote about how the Fifty Shades of Grey trilogy was first written as fair use-dependent fan fiction based on the Twilight vampire series.)

Stewart’s most powerful critiques result from his juxtaposing clips of politicians and commentators on news broadcasts to demonstrate their hypocrisy. He’ll contrast a clip of a Fox News commentator expressing outrage at President Obama taking a particular action with a clip of the same commentator praising President Bush for taking a similar same action. Stewart also uses montages of clips from CNN and other news networks to demonstrate their simultaneously sensationalistic and superficial coverage of disasters and trials. But for fair use, Stewart’s rebroadcast of these clips would be willful copyright infringement, subject to statutory damages of up to $150,000 per clip.

Jon Stewart’s heavy use of clips for the purpose of humorous political criticism has inspired other comedians to emulate him, most notably his former “correspondents” Stephen Colbert on The Colbert Report and John Oliver on Last Week Tonight. Stewart’s reliance on clips no doubt has also encouraged the growth of the remix culture online, where individuals combine clips of preexisting works for the purpose of political or artistic expression.

Stewart’s reliance on fair use likely made him progressive on other copyright matters. He supported fans distributing excerpts of The Daily Show online, he questioned the position of Viacom (the owner of Comedy Central, the channel that carries The Daily Show) in its litigation with YouTube, and he opposed SOPA.

Additionally, Jon Stewart’s fair use of clips has had a positive impact on policymakers. The Daily Show is perhaps the easiest example to give lawmakers and their staffs of the importance of fair use. A reference to The Daily Show makes them instantly understand how fair use functions, in Supreme Court Justice Ruth Bader Ginsburg’s words, as one of the copyright law’s built-in accommodations to the First Amendment. Further, The Daily Show demonstrates clearly that large media companies (e.g., Viacom) rely on fair use.

Jon Stewart has not announced what he will do after he leaves The Daily Show. But it is hard to imagine that the greatest practitioner of fair use in this generation will not at some point embark on another venture that employs fair use.

Reposted from the Disruptive Competition Project

Posted on Techdirt - 11 February 2015 @ 12:37pm

Fifty Shades Of Fair Use

Fifty Shades of Grey, which is being released this Friday just in time for Valentine’s Day, is sure to be one of the top grossing films of the year. Depending on your point of view, fair use is to blame—or thank—for the existence of the Fifty Shades franchise.

The movie is based on the three erotic Fifty Shades novels, which have dominated (pun intended) book sales for the past three years. Over 100 million copies of the novels have been sold, the first novel of the series has been on the New York Times bestseller list for 140 weeks, and the novels have been translated into 51 languages. And to make sure that no dollar is left behind, Target just began distributing a line of Fifty Shades sex toys to coincide with the film’s release. Similarly, Vermont Teddy Bear is offering a Fifty Shades of Grey Teddy Bear, featuring smoldering eyes, a suit and satin tie, a mask, and mini handcuffs.

The British author of the series, E.L. James (a pseudonym for television executive Erika Mitchell), originally wrote the trilogy as fan fiction of Stephanie Meyer’s popular Twilight series, and posted it in installments on the fan fiction site FanFiction.net under the title Master of the Universe. Some of the readers complained that it was too racy for the site, which tries not to host adult content, so James moved it to a website she created, FiftyShades.com. At some point the popularity of the story must have convinced James of its potential commercial value, so she eliminated the potentially infringing references to Twilight characters and plotlines while retaining her original bondage/discipline, dominance/submission, and sadism/masochism themes. She divided this revised version into three novels that were published as e-books by an Australian virtual publisher.

Fan fiction is a quintessential fair use. It is highly transformative and does not harm the market for the original work. To the contrary, by allowing fans to engage and interact with the works they admire, fan fiction enhances fan loyalty and likely increases sales. For this reason, the vast majority of authors and media companies do not object to non-commercial fan fiction. (The little litigation involving fan fiction has arisen in circumstances when a commercial publisher distributed what started as fan fiction, e.g., the Harry Potter Lexicon.)

It is unclear whether fair dealing, the UK version of fair use, permits fan fiction to the same degree as fair use. The copyright laws of other European countries likewise do not contain exceptions sufficiently robust to provide certainty about the legality of fan fiction. For this reason, the world’s largest fan fiction websites are based in the United States. Thus, FanFiction.net, the website on which E.L. James first posted Master of the Universe, was established in California in 1998. Fan fiction websites, like search engines and social media platforms, are examples of how fair use has enabled the global leadership of U.S. Internet companies.

Fair use and the fan fiction culture it enables nurtured the development of Fifty Shades. As she uploaded chapter after chapter of Master of the Universe, James almost certainly would have received constructive comments from other fans of “Twific” (Twilight fan fiction) recommending stylistic changes and plot twists, and urging her to continue writing. The fan fiction environment provided James with a platform for road-testing her work, and developing a following, without incurring infringement liability.

The creative cycle continues. Thousands of “fanfics” inspired by Fifty Shades are now available on FanFiction.net and other fan fiction websites. Perhaps some day one of them will evolve into a bestselling novel or a major motion picture.

Reposted from the Disruptive Competition Project

Posted on Techdirt - 30 December 2014 @ 06:13am

How Copyright Forced A Filmmaker To Rewrite Martin Luther King's Historic Words

Among the most powerful moments of Selma, the new film about the march Martin Luther King, Jr. led in 1965 in support of voting rights for African Americans, are the speeches, sermons, and eulogies King delivered during that tumultuous period. However, the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate’s aggressive stance on copyright has literally forced the re-writing of history.

According to the Washington Post, the King estate licensed the film rights to King’s speeches to DreamWorks, with Steven Spielberg producing any resulting films. DuVernay said that she never even asked for the rights to King’s speeches “because we knew those rights are already gone, they’re with Spielberg.” She added that she knew that there were strings attached to the rights: “with those rights came a certain collaboration.” In other words, the King estate uses its control over the copyright to control how King is portrayed. The Post article suggests that this control has prevented the making of a feature film about King?until now.

In the summer of 2013, when the nation was commemorating the 50th anniversary of the March on Washington, the King estate refused to allow broadcasts of King’s “I Have a Dream” speech. At the time, I wrote a blog post questioning the policy justification for one of the most important speeches in American history remaining under copyright 50 years after its delivery, and 45 years after the death of its author. I argued that King did not need the economic incentive provided by copyright protection to write the speech or deliver it so compellingly. I further asserted that copyright protection was not necessary to ensure that the speech remained in distribution 50 years after the March on Washington. I also responded to the argument that royalties from King’s speech have financed the work of the Martin Luther King Jr. Foundation promoting civil rights and social justice by noting that funding valuable institutions is not the purpose of copyright. Additionally, the cause of civil rights arguably could be better advanced by the broadest possible dissemination of his speech, rather than by exploiting it to generate revenue for the Foundation.

The same arguments can be made with respect to King’s speeches surrounding the march in Selma. King obviously was not motivated by financial gain when he wrote those speeches. Further, copyright protection was not necessary to ensure that the speeches remained available in the decades since. To the contrary, copyright protection prevented the derivative use of those speeches in the film, thereby potentially depriving new audiences of King’s message.

The Washington Post‘s review of Selma suggests that the director Ava DuVernay made a virtue of necessity in response to her inability to secure the rights to the speeches:

“in a brilliant work-around DuVernay approximates [King’s] words, allowing viewers to focus on their meaning rather than how literally Oyelowo reproduces them.” Likewise, the New York Times’ review observes that DuVernay turned her lack of permission to use the speeches into “a chance to see and hear [King] afresh.” In the film, King is “less an orator than an organizer” and is “a man trying to navigate his public role, his private life, and the expectations of his allies and friends.”

Proponents of long copyright term might point to these reviews as proof of the copyright system working properly. Denied the ability to quote King directly, DuVernay was forced to create her own expression?paraphrases of King’s speeches?and her own interpretation of King’s life.

At the same time, the Times recognizes that the inability to quote King directly “may be a blow to the film’s authenticity.” And this is a serious problem, particularly in a world where people are far more likely to learn history from a biopic than from a textbook. The director of a biopic already must compress complex events that unfolded over months (in the case of Selma) or years (in the case of the Alan Turing biopic, The Imitation Game) into two hours. The director must also add dramatic tension in order to sustain audience interest. (For example, Joe Califano, then a member of the Johnson Administration, has accused DuVernay of falsely portraying a series of conflicts between Johnson and King over voting rights, when in fact they agreed with the both the strategy and the tactics for achieving this objective.) The inaccuracies created by this compression and invented dramatic tension should not be compounded by concerns of potential copyright infringement liability.

Fair use is the obvious solution to the problem of copyright constraining the presentation of historical events. In Bouchat v. Baltimore Ravens, discussed in this post, the Fourth Circuit found the National Football League’s use of the “Flying B” logo in highlight films to be transformative because the logo was used “as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers.”

The court further stated:


“Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts.”

Similarly, in Fox News Network v. TVEyes, discussed in this post, the court concluded that TVEyes’ inclusion of clips in a search engine for broadcast television was a transformative use. The court found that “TVEyes’ message, ?this is what they said’?is a very different message from Fox News’??this is what you should know or believe.'”

The primary purpose of including King’s speeches in the film Selma would be to inform its viewers of what King said and the impact it had on his audience. Although Ava DuVernay almost certainly believed in what King said, and wanted her viewers to believe it too, that purpose would be secondary to educating her viewers about King and his impact on the course of history.

Based on TVEyes and Bouchat, DuVernay would have had a strong fair use defense had she used King’s actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate. While it appears that DuVernay remained true to both the style and content of King’s speeches, the next director might not be so scrupulous. Indeed, an inept paraphrase of one of King’s speeches at the Martin Luther King, Jr. Memorial in Washington, D.C., made him sound, according to Maya Angelou, “like an arrogant twit.” The paraphrase subsequently was removed.

The paraphrasing of Martin Luther King, Jr. puts us on the slippery slope to truthiness. The King estate should be far more worried about people paraphrasing King than quoting him accurately.

Reposted from the Disruptive Competition Project

More posts from Jonathan Band >>