Supreme Court Deathmatch: Aereo vs. The Entire Broadcast Network Industry

For the last six months, a friend of mine has relentlessly tried to get me to ditch my Xfinity hookup and replace it with Aereo, an online TV subscription service. To hear him tell it, it’s the greatest thing ever invented - immediate and live access to broadcast news, sports, and TV shows from the big 10 networks such as NBC, CBS, ABC, FOX, PBS (no cable channels though), all for a measly $8 a month. I think I’ll wait though. I’m happy with my yesteryear technology and I derive a certain amount of comfort from mindlessly flipping through hundreds of channels I’ll never watch. More importantly, Aereo may not even exist in six months. That’s because tomorrow the Supreme Court will hear oral arguments in the case of American Broadcasting Companies, Inc. v. Aereo, Inc. And if Aereo loses, according to its own CEO, the company is kaput.

For those who don’t know, Aereo is a startup that takes television broadcasts from networks and retransmits them to you live via the internet. You can also store these broadcasts in a cloud-based DVR, all for the cost of two cups of coffee. As it turns out, even though you’re paying Aereo, Aereo is not paying the networks; it's just ripping these broadcast signals out of the air and streaming them to you. That didn’t make the networks too happy, so they banded together and sued Aereo for copyright infringement.

This isn’t an easy case and I don’t envy the justices the amount of work they'll have to even understand the technology at play (read this article if you want to know how behind-the-times the SCOTUS really is). Ultimately, this case turns on whether Aereo’s retransmission of broadcast television constitutes a “public or private performance” of copyrighted works. Private performance is perfectly legal, like when you buy a DVD and show it in your home. Even if you invite 100 friends over to watch, you’re safe. But let’s say you rent a theater and charge for admission - that would make the performance public, and that becomes copyright infringement.

In this case, the networks argue that Aereo’s actions constitute public performance because:

1. Aereo streams “live TV” to a wide variety of subscribers;
2. Aereo charges fees for its services;
3. Unlike other retransmitters, Aereo doesn’t pay licensing fees to the networks for permission to broadcast their content.

In opposition, Aereo argues that it does not transmit “to the public.” It transmits only to its paying user base. Furthermore, the choice about what gets retransmitted at any given time is made by the subscriber, not Aereo. Some lower courts have already sided with Aereo, but if I’m being totally honest, I empathize with the networks, even though siding with a corporate copyright holder gives me the willies. Creating and broadcasting content is back-breakingly hard and terrifically expensive. Even some of those low-budget reality shows for third-rate cable channels that look like they were shot on iPhones… oftentimes they have budgets in the tens of thousands of dollars per  episode. And there are lots of working-class content creators behind those shows. Remember, most people in the entertainment industry aren’t millionaires; they’re regular people working paycheck to paycheck, relying on a steady stream of work from networks and studios to pay their bills. It’s easy to think of the producers and directors and say “who cares?” But the people who get hurt first and hardest are the below-the-line talent: the grips, boom operators, location managers, scouts, production assistants, etc. What will happen to those jobs if the networks believe that pouring money into original content is no longer a profitable business model? And if you’re one of the networks, do you want to continue operating in an industry where it’s permissible for competitors to poach your signal and rebroadcast your content without owing you a fee for your trouble?

I don't know what's going to happen, but in a corporate-friendly court like this one, I can see the Supreme Court buying an argument that Aereo’s continued existence will irreparably harm the bottom lines of not just the networks, but the big telecoms like Comcast and Time Warner (soon to be a single world-killing behemoth). I don’t want to see Aereo go down because the use of technology to better peoples' lives is an intrinsic part of the American ethos. But I also don’t want to see a wholesale dismantling of the entire entertainment industry (alarmist I know, but still possible).

I’ll update this post with some thoughts after Tuesday’s oral arguments. In the meantime, I’m going to stick with my cable hook up, and I’ll tell my friend to  start budgeting for cable again if Aereo goes down the poop chute.

What My Wife's Pregnancy And Derivative Works Have In Common

Three weeks ago, Steph and I decided to publicly announce that we're expecting our first child (September 1st, dear readers! Mark your calendars). It was crucial to us that the announcement be memorable and fun, and almost immediately, Steph hit upon the idea that the announcement take the form of a movie poster. I'm a film buff after all, so I think she knew I couldn't say no. My initial concept was to do a horror-themed one sheet in the vein of Saw, but Steph didn't like the idea of equating our bundle of joy with murderous psychopathy, so we quickly settled on another well-worn trope: the bright, colorful, goofy posters for terrible Matthew McConaughey romantic comedies like Failure to Launch, or How to Lose a Guy in 10 Days. The poster would feature us against a white backdrop, Steph as the beautiful, glowing mother-to-be, while I acted the part of the hapless but gold-hearted man-child.

Concept in hand, we hired a friend and professional photographer, Alex Jones, to shoot the poster. I wanted this thing to be perfect and my camera gear - an iPhone 5 - wasn't exactly going to cut it. I also knew Alex could deliver what I was looking for with minimal direction; he did my headshots last year and those were universally praised. As expected, Alex's poster shots went above and beyond. And after two days of experimenting with layouts, fonts, and colors, here's what we came up with:

The announcement was a big hit with friends and family and it was also a creatively satisfying experience. So why am I telling you this? First, I'm proud of the way the poster came out and I just want to brag a little. Second, I thought the poster was a good example of the weird world of "derivative works."

A derivative work is an adaptation, translation, or modification of an existing copyrighted work. You see them all the time without even realizing it. A film based on a book, a photograph of a sculpture, a cover of a song, an English translation of a Russian novel, a collage of cat meme pictures... all of these are derivative works. And with the internet providing unlimited free access to all sorts of visual content, it's become pretty easy to build a career as a derivative work artist. As a result, I frequently get questions from collage artists and photographers asking where the line is when it comes to using the works of others in their own work.

Unfortunately for them, that line is pretty clear; the only person allowed to make a derivative work of the original is the owner of the original! It's codified in our copyright law as an exclusive right, which means that if you author a derivative work without permission of the copyright owner, you could actually be liable for copyright infringement (exception: photographing or painting exterior structures like buildings and sculptures for commercial gain are generally not copyright infringement if the structures are easily visible from a public place). Without that permission, your only recourse is the fair use doctrine, which I've been pretty vocal about being a lousy way to get out from under a copyright infringement claim.

To complicate matters further, if you author a derivative work, you will own the copyright in the parts of the work that are unique to you, even if the derivative was unauthorized. The original copyright, of course, will still remain with the owner. This weird overlap can lead to some sticky situations with both parties claiming some copyright interest in the work and neither being able to profit off the other's creation.

So looking at our faux-movie poster, how does this dynamic play out?

1. The copyright to the original photograph rests with the artist. Contractually, Alex maintains the rights to all his photos unless he conveys them away. The only right I possess is the right of non-commercial display (meaning I can show people the photo but I can't resell it).
2. The modifications I made to turn the photo into a poster do not constitute copyright infringement in this case because I had permission from Alex - I hired him specifically to carry out a preexisting vision - and because I'm not making any money from it. If Alex had not given me permission (either explicitly or implicitly), I would have been liable to him for copyright infringement.
3. While Alex owns the copyright to the photo, I own a copyright interest in the overlay changes I made to transform his photo into a movie poster. Yes I can actually claim a copyright in the layout, the wording choices, the color choices, and the overall aesthetic effect of the piece.

You'll notice that a big reason I'm safe is because I'm not making money off the poster. That, obviously, is no consolation to a working artist who needs to make money to survive. So my blanket piece of advice for artists who rely on the works of others to create their own: do your best to get permission, use older work that's in the public domain, or avoid using preexisting work altogether. And if you're not interested in that, please talk to a lawyer to see if your intended use is protected by fair use.

Ultimately, I think your time is better spent creating new work rather than defending yourself on an infringement claim because you used old work.

[Author's Note: I don't actually know Judd Apatow and A.O. Scott.]

The Maker of Candy Crush Saga Is Trying To Crush Your Ability To Use The Word Candy: A Trademark Misadventure

Can you trademark a single everyday word? Even if you know nothing about trademarks, the answer seems obvious: NO. After all, if you can trademark a single word, what’s to stop you from trademarking “foot” or “bike” or “candy” and then suing someone every time they used that word in a business setting? Such a reality would be absurd. Sadly, such a reality may be upon us because King, the maker of the hit game Candy Crush Saga, has just received approval from the United States Patent and Trademark Office (USPTO) to do just that.

King is trying to protect Candy Crush Saga, its big moneymaker, from a host of imitators who use the word “candy” in their titles. So it did what any reasonably copyright holder would do to protect its financial interest… it submitted an application to trademark the word “candy” in order to prevent other game developers from using it. I’m not being sarcastic here either; King’s response IS reasonable because these imitators have confused the general public into thinking that these other Candy games were just like Candy Crush Saga, maybe even made by King. And with the public assuming all these games came from the same manufacturer, they became less likely to download the real deal and more likely to download the imitation, siphoning profit from King. This kind of marketplace confusion is exactly the type of problem that trademarks were designed to prevent.

The problem here isn’t that King tried to trademark a single word. The problem is that the USPTO let it. This is troubling for two reasons. First, the USPTO approving such an application violates a basic tenet of trademark law: that a trademark must stand out, it must be distinct. According to the USPTO’s own guidelines:

Generic words... are never registrable or enforceable against third parties. Because generic words are the common, everyday name for goods and services and everyone has the right to use such terms to refer to their goods and services, they are not protectable. 

In this case, the word “candy” is too generic; it doesn’t immediately reference a game for most people. It refers instead to a sweet food substance that a man my age shouldn't enjoy as much as I do. If, on the other hand, King had tried to trademark a unique version of the word like “Kan-D” the mark might have been stronger and more worthy of protection.

The second reason King’s application is so troubling is that it’s bad policy. If anyone can trademark any word, they can then clog up the federal court system (where trademark disputes must be litigated) with needless lawsuit after needless lawsuit. King clearly has no intention of legally pursuing every business that uses the word “candy". They simply want to prevent other game developers from making games that reference Candy Crush Saga. But you can’t base policy on the intention of one party. You have to base policy on the potential actions of everyone affected. Frankly, other trademark owners may not be as nice as King when it comes to protecting their trademarks.

Luckily, the trademark process is a long and complication one. Here, the USPTO has not officially registered the mark (which is the final step that grants the trademark owner a wide swath of protective powers). They merely approved King’s application, which means now that anyone who could be hurt by the mark has 30 days to contest the mark and try to persuade the USPTO why trademarking a single generic word is a bad idea. And believe me, there will be a lot of pushback on this, from immediately affected parties and policy wonks.

So what possessed the USPTO to approve King’s application in the first place? Was it negligence? Does it signal a strange new shift in policy? Is it a long-term gambit designed to draw attention to single-word trademark applicants and whip the public into a frenzy, thereby dissuading future like-minded applicants? Who can say? In my estimation, King’s registration will probably fail because of the pushback its application is going to get. But if the mark survives the contest period and officially registers, you can bet this won’t be the end of the story. King may well have just saved Candy Crush Saga from imitators, but it also just painted a huge target on its back.

When Rowling Met Galbraith: How An English Lawyer Broke The One Unbreakable Rule All Lawyers Must Follow

This past April, a former military police officer named Robert Galbraith released his debut novel, The Cuckoo's Calling to stellar reviews but terrible sales, selling only 1500 copies. As sales floundered, a British lawyer named Chris Gossage confided to his friend Judith Callegari that Galbraith wasn't a real person, but was in fact the pseudonym for J.K. Rowling, the most famous author in the world. Callegari then did what most of us would do when handed such a world-shattering piece of gossip - she blabbed to anyone who would listen, including a reporter. With the cat out of the bag, sales of Cuckoo skyrocketed to #1 on Amazon.

It's not hard to see why Rowling would do this. As wealthy and successful as Harry Potter made her, the pressure to rebel against typecasting must have been overwhelming. Following the release of Deathly Hallows in 2007, she sought to distance herself from the world of magic by writing a novel for an adult audience. The result was The Casual Vacancy, a thriller which sold like gangbusters, but was panned by critics. I imagine she took a great deal of satisfaction knowing that while Cuckoo wasn't popular when everyone thought Galbraith had written it (it's not like she needed the money), it found love from the very people who felt she could never write a book that wasn't aimed at children. She admitted as much on her website, saying that it was nice to be able to publish "without hype or expectation." So while Rowling was displeased with her identity being leaked, she had still proven her point.

Not everything worked out so well for Gossage though, a partner at the firm that represented Rowling. She sued the firm because he breached the inherent confidence present in the attorney-client relationship (which usually applies to the whole firm even if Gossage himself wasn't representing Rowling).  Even worse, he was just slapped with a fine by the Solicitor's Regulation Authority (the organization that oversees attorney ethics in England) for violating a client's trust.

Regardless of which side of the pond you live on, attorney client confidentiality is a pretty big deal. In most cases, by the time a client seeks the aid of a lawyer, a crisis has happened and the client is often in the midst of a deep personal anxiety. Not only are they emotionally fragile, they are dealing with issues that might require the divulging of sensitive information. Anything from sexual abuse, to financial indebtiture, to murder is on the table, and needs to be discussed frankly in an open and safe environment. If the client can't feel comfortable discussing these issues, then the lawyer can't give the best legal counsel he or she has sworn to provide.

That trust is so important that every country with a judicial system has a rule protecting attorney-client confidentiality. In Massachusetts, where I practice, Rule 1.6 of the Rules of Professional Conduct states that:

A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation.

Without the client's express consent, a lawyer can only reveal confidential information in certain limited circumstances:

1. If it would prevent someone from sustaining substantial bodily harm or death,
2. To obtain legal advice about ethics,
3. To defend himself against allegations of legal misconduct, or
4. To comply with another law or court order.

All 50 states have a rule like this. Depending on the severity of the violation, a lawyer can be punished with fines (as Gossage was), disbarment, or even jail time. Most lawyers take client confidentiality very seriously, not just out of fear of punishment by the local examining board, but because it's the right thing to do.

Every American law student knows the tale of Frank Armani and Francis Belge, two American lawyers who represented Robert Garrow, who was accused of murdering Philip Domblewski in 1973 while Domblewski was camping in the Adirondacks with friends. During a consultation with Armani and Belge, Garrow not only admitted to killing Domblewski, he admitted to murdering and raping several other people. Garrow told them where he dumped the bodies, and his story was confirmed when Armani and Belge personally went to those sites to investigate and photograph the remains.

But because Garrow was their client, Armani and Belge couldn't tell the family members of the deceased where the bodies were.  In fact, Armani and Belge kept silent for nearly a year, despite intense public pressure (they finally disclosed what Garrow had told them after Garrow admitted to the murders during trial). Because they had taken an oath to protect their clients' confidences (no matter how reprehensible), Armani and Belge were not able to discuss what Garrow told them without incurring potential legal repercussions.

In the grand scheme of things, the £1000 (about $1600) Gossage was fined amounts to little more than a slap on the wrist. Gossage claims that he himself is a victim of betrayed confidence, believing that Callegari would keep the secret. Regardless of his excuses, Gossage just learned a valuable lesson about talking out of school, especially when the client is as well-known as Rowling. He should count his lucky stars that she's a world-famous billionaire author, and not a psychotic rapist killer like Garrow.

Anyone Who Argues Against Net Neutrality Is A Greedy Scumbag Who Wants To Take Your Money

I've always wanted to write a salacious hit-bait headline like that. Hopefully it worked and you're reading this. So now that I've gotten your attention, here's what I really want to say... anyone who argues against net neutrality is a greedy scumbag who wants to take your money.

This week, the D.C. Circuit Court of Appeals struck down the Federal Communication Commission’s (FCC) rule protecting net neutrality. And that’s unfortunate because net neutrality is a wonderful thing. For those who don’t know, net neutrality is the principle that all internet traffic should receive free and equal service, regardless of source or content. For the past decade, this is how the internet has functioned. It didn't matter if you were reading an article on a news website, sharing your vacation pics on Picasa, or streaming Raging Bull on Netflix, you could access any content you wanted and it was all treated the same.

Net neutrality is what allowed Google, Facebook, Netflix, and Amazon to get a foothold in the marketplace and become the juggernauts they are today. Realizing the goldmine to be had by controlling access to the internet, the telecoms started implementing policies to do just that. So in 2010, the FCC passed an Open Internet Order allowing it to regulate internet companies the same way it regulates telecoms and cable companies. The goal was to keep access to the ENTIRE internet equal and open to all.

Why Should You Care?

Unfortunately, Verizon hated this, so it sued the FCC, claiming that its Open Internet Order was an overreach of federal power. The D.C. court agreed. That means it’s now legal for internet providers to:

• Block any website they want for any reason,
• Charge ISPs more money to host streaming content, meaning your Netflix subscription is about to increase by orders of magnitude,
• Cap and throttle internet usage with impunity, charging higher fees for better broadband access.

So if Time Warner wanted, it could now block any website it's not affiliated with. Prefer to get your news from NBC, Fox, or NPR? Too bad. Time Warner owns CNN so that’s the only news outlet you might be able to get. Even if it decides not to block those websites outright, it can charge ISPs higher fees to carry those websites, or throttle the bandwidth given to those websites making them load much slower. HuffingtonPost has a pretty solid rundown about how the internet might look in the absence of net neutrality.

Ultimately, the death of net neutrality will mean that a few giant companies can discriminate against sites and content they don't like and funnel your internet experience in ways they deem appropriate (during oral arguments, Verizon’s attorney admitted they would be pursuing different economic schemes if not for the Open Internet Order). With the internet providers controlling content, fewer and fewer startups will be able to get a foothold in the market, significantly affecting innovation.

Net neutrality opponents have argued that so much traffic comes from "big video sites such as Netflix and YouTube, [that it] clogs up the system and imposes delays on everyone else. These companies should be paying their fair share." Which sounds eminently reasonable until you realize that Verizon made $2.23 billion in the third quarter of 2013 alone, so it's not exactly hurting for cash.

Pro-neutrality advocates have argued that there's plenty of bandwidth to go around and charging extra because of the nature of the content is "naked corporate greed." I agree, and so do Facebook, Google, Yahoo, Amazon, and Netflix, who favor net neutrality and stand to lose a lot of money if the telecoms get their wish.

How This Affects Artists

The loss of net neutrality is bad for everyone, but it’s especially bad for artists because art is frequently visual in nature, and unlike text, visual media requires a lot of bandwidth. If I’m a filmmaker and I put my latest film on YouTube, how likely are you to watch if it takes 10 minutes to load because you’re on a lower-tiered broadband plan which doesn’t include video streaming? If I write a song that contains explicit sexual content, how will I get anyone to listen if Comcast starts arbitrarily banning content it deems to be pornographic in nature?

The end of net neutrality becomes another way for large corporations to trample the rights of individual artists, something I’ve railed about on this site for a while now. Limiting the artist’s ability to display and promote his or her work not only affects the individual’s ability to make a living, but it affects society at large because it stifles creativity and limits innovation.

Why There’s Still Hope

The Atlantic's Kevin Werbach offers some credible arguments that, despite the ruling, there’s some hope for the future. First, even though the D.C. court’s ruling now eliminate the only rule preserving net neutrality, no rules even existed before 2010. And it’s not like we were plunged into an internet-restricted hellscape during that time. In fact, immediately following the court’s ruling, Verizon announced that there would be no changes to its services for customers.

Second, the court made it’s decision on a fairly limited technicality and gave the FCC a roadmap for fixing this whole mess. In a nutshell, if the FCC placed internet services into the same category as it did the telecom giants, it would be able to reinstate the Open Internet Order in some form. The fact that internet providers are not classified as "common carriers" like the telecoms is the main reason the rule was invalidated by the court. And throughout the opinion, the court repeatedly references the FCC’s “choice” or “decision” to classify internet providers differently than telecoms.

Given the Commission’s still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” see supra at 9–10, such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

Granted, reclassifying broadband providers as common carriers would require some legal jiu-jitsu by the FCC, and it’s unclear to me that the law would easily permit FCC Chairman Tom Wheeler to make that choice. Even if he could, he might not want to since it would probably result in a  political battle with congressional Republicans, who, it should be noted, absolutely hate net neutrality. Right now, the FCC is more likely to appeal the court’s ruling than reclassify. But reading the decision it became clear to me that the court was telling the FCC how to regain the upper hand. The decision repeatedly slaps down Verizon's claims and states explicitly that it “think[s] it quite reasonable to believe that Congress contemplated that the Commission would regulate [broadband internet service providers].”

Probably the best way to resolve the matter is to get Congress to pass pro-net neutrality legislation, which is obviously easier said than done. Luckily, there’s a lot of money in this fight and for once, it’s not a case of the big guys (i.e. big corporations) lobbying against the little guys (i.e. you). Sure, Verizon, Comcast, and Time Warner have a lot of money to lobby Congress. But you know who else has a lot of money to lobby Congress? Facebook. Google. Amazon. Yahoo. And they fucking love net neutrality.

Sherlock Holmes Enters The Public Domain And George R.R. Martin Does A Happy Dance: Why Longer Copyrights Might Be Better For Artists

Eight months ago, I wrote this article describing why it would be a good thing if Sherlock Holmes entered the public domain. The premise of the article was that long-living copyrights are harmful to artists; they stifle innovation and creativity and incentivize large copyright owners to pursue legal action against even the most minimal use of their copyright. By shortening the copyright lifespan, the monetary value of  properties like Sherlock, would drop, making them less appealing and thus motivating artists to create new works instead. Simultaneously, copyright lawsuits against infringers would drop, keeping smaller independent artists out of court.

Well, last week I got my wish. According to a federal judge in Illinois, Sherlock Holmes and all elements of his character created prior to 1922 are now in the public domain, which means that anyone in the U.S. (but not the U.K.) can write their own personal Sherlock fanfic and profit from it without paying the Conan Doyle estate it's traditionally hefty fee. So, happy Greg, right? Well maybe not. A strange thing happened on the way to victory... I sort of changed my mind.

George R.R. Martin's hatred of fan fiction had something to do with it. In a recent interview, Martin said this in response to a question about his refusal to license Game of Thrones for use in fan fiction:

 [O]ne thing that history has shown us is eventually these literary rights pass to grandchildren or collateral descendents, or people who didn't actually know the writer and don't care about his wishes. It's just a cash cow to them. And then we get abominations to my mind like Scarlet, the Gone with the Wind sequel. 

I've always admired Tolkien and his immense influence on fantasy.  Although I've never met the man, I admire Christopher Tolkien, his son, who has been the guardian of Tolkien's estate who has never allowed that. I'm sure there are publishers waiting in the wings with giant bags of money just waiting for someone to say, "Yes, go ahead, let's write Sauron Strikes Back." I hope I never see Sauron Strikes Back written by some third-rate writer who leaps at the opportunity.

His reasoning makes sense to anyone who has created something worth stealing: he wants to protect the integrity of his creation. Which is pretty easy while he's alive. He can approve or deny any licensing request that he thinks might dishonor the work. But what about after he dies? How do you ensure that the people who become guardians of GoT can protect it the way he wants? Part of the answer, I think, is to make copyrights indefinite, preventing them from entering the public domain. This would effectively turn them into business assets (much like trademarks). For some artists, this could be beneficial.

For the record, I still believe it's important to prevent unnecessary infringement lawsuits and spur innovation - remember, the Constitution supports the protection of copyright for the public good, not just for personal financial gain. For those reasons, I would still support shortening copyright durations. But Martin's words made it clear to me that these aren't the only issues that matter. Isn't artistic integrity something the law should be protecting as well? After all, artists don't just create for the money or recognition. They are driven to create because they have something to say. If an artist can protect the integrity of the work over time, that gives the work greater meaning. Conversely, if copyrights are shortened, the meaning behind the work suffers. For Martin, shorter copyrights would mean those "third-rate writers" would be granted unfettered access to GoT that much sooner. You can see how unappealing that would be for him.

Martin's not alone either. In the late 90's, Disney was on the verge of losing the rights to some of Mickey Mouse's earliest films. In order to prevent them from entering the public domain, Disney lobbied Congress to extend copyright durations. Their efforts paid off in 1998 when Congress passed the Copyright Term Extension Act (referred to derogatorily as the Mickey Mouse Protection Act), which extended the lifespan of all copyrights in the process: individual copyrights were lengthened from life of the author plus 50 to life plus 70, while works of corporate authorship were extended from 75 to 120 years. Time, however, catches us all, and Disney's copyrights will start expiring as early as 2017, so you can bet good money that they'll put the full-court press on Congress to extend copyright terms again. As long as Disney stands to lose its most valuable commercial asset, copyright terms will continue to grow. And the longer Disney has the power to lobby, the more likely copyrights will eventually gain perpetual life. In the not too distant future, Disney may have the right to Mickey Mouse in perpetuity.

But is this inherently a bad thing? I'm not so sure. There are numerous examples of long-term guardianships protecting the integrity of their properties. There's Christopher Tolkien refusing the license any of his father's work for film or television (the elder Tolkien sold the film rights to The Hobbit and Lord of the Rings back in 1969). There's the Conan Doyle estate ensuring that all filmic versions of Sherlock meet the owners' high standards. There's also the Broccoli family maintaining a tight control over the James Bond film franchise for the last 50 years. Say what you will about the quality of any individual work, but no one could argue that these owners have anything less than the integrity of the source material at heart.

In any legislation there are trade-offs, with different issues being important to different stakeholders. For some, protection against big corporations is the most salient issue; shorter copyrights make sense for those people. But for someone like Martin, who has created a sprawling world that is financially viable and popular enough to have imitators, it makes sense for the law to protect the quality of the work. That could mean Martin and his heirs own GoT forever.

So maybe, just maybe, I was wrong about the value of longer copyrights. But no matter what, this isn't an issue that can be settled in a single blog post by lil ol' me.

Reading Contracts Sucks But You Should Do It Anyway Or MTV Will Broadcast Your Address To A Million People

Let's do some role-playing. Pretend you're a young man named Tristan Watson who has agreed to participate in an MTV reality show called True Life: I'm a Chubby Chaser, a doc about men who prefer dating large women. Let's also pretend you agree to do the show on the condition that MTV withholds your identity, referring to you only as "Tee" during the broadcast. This agreement is made via handshake, but the anonymity clause is never incorporated into the final written contract, which you sign. Once the show airs, you discover that not only is your full name used, but MTV also broadcasts your address and even your apartment number. You receive death threats and you lose your job. You sue the network for lying to you about its promise of anonymity and for all the harm it has wrought in your life, but because the contract also includes an agreement that you "will not sue the network for any reason," you lose big time.

Sadly, this is no game. There is a real Tristan Watson and everything I just said actually happened to him. Watson's experience is not a novel one. Contracts that broadly favor one side happen quite a bit in the entertainment world where one party (i.e. MTV) has considerably more bargaining power than the other (i.e. Watson). These lopsided contracts are even more prevalent in the nonsensical world of reality TV, where American teens will sign away their birthright for a chance to become a celebrity and the networks make absolutely no attempt to be reasonable in contracting with said teens. Unfortunately for Watson and those like him, even if the contract hadn't contained a promise not to sue, there are two inter-related concepts in contract law that ensure he was destined to lose his lawsuit against MTV.

1. Absent extraordinary circumstances such as fraud, U.S. courts presume that every party to a contract has read and understood the terms. So pleading ignorance when you discover you agreed to something you didn't intend almost never works. Had Watson taken a few minutes to read the contract before signing it, he would have discovered that the anonymity clause was nowhere to be found and might have avoided the drama following his appearance on True Life. This is a shining example of why you should always always always read your contract, even the ones you write yourself.
2. In situations where two parties agree verbally to a term, but never actually integrate it into the final contract, that term is not considered valid once the contract is written and signed. This is called the parol evidence rule, and it's almost impossible to overcome if incorporating that term would change the contract.

Look I get it. Reading contracts is no fun. They're boring, they're long, they contain a lot of junk, and they're usually written in legalese, making them tough to understand. Believe it or not, lawyers hate reading contracts for the same reasons. It's true! Why do you think we charge you so much money to draft and review your agreements? Because it sucks!! That's why mobile apps specializing in generating simple contracts (like Shake) are making a big splash nowadays.

Sucky or not, however, there's no getting around it. Whether you're a high-bargaining party or a low-bargaining party, then only way to preserve your interests is to get comfy reading contracts. There's no better way to ensure that harmful provisions weren't snuck in there when your back was turned. Because once you put your signature on that piece of paper, that's all she wrote my friend. You are bound to the terms in that contract whether or not you read it.

[Author's Note: I should add that if Watson could prove MTV acted fraudulently, the entire contract would be invalidated, including the promise not to sue the network. Since Watson lost his lawsuit, I'm guessing that he couldn't meet that burden.]

Vince Gilligan Thinks Piracy Helped Breaking Bad, Turns Out He Might Be Right

Vince Gilligan, the genius/ creator/ writer/ director/ dark wizard behind Breaking Bad said this in an interview with the BBC last week:

If I’m being honest I see that the illegal downloading led to a lot of people watching the series, becoming aware of the series who otherwise would not have been... I see that in some ways illegal downloading has helped us, certainly in terms of brand awareness, so that’s a good side.

At first I met this statement with a heavy dose of skepticism. It's not exactly like Breaking Bad went unnoticed for the last six years... it was a monstrous hit, critically and commercially. A cultural touchstone, it's repeatedly mentioned in the same breath as The Wire and The Sopranos as one of the greatest modern television shows of all time. Whatever awareness could be raised by illegal downloads surely pales in comparison to the massive word of mouth and AMC's multi-media marketing push.

But instead of writing another anti-piracy screed like I did last year, I decided to do some research. And against the odds (and my own prejudices), I discovered that Gilligan may in fact be right. Two years ago, the Swiss government commissioned a study measuring the effect of copyright-infringing downloading. The result? Piracy actually does help copyright holders (take that Congress)! The study, released by the European Commission Joint Research Centre, found that users who download content illegally are actually 2% more likely to pay for content because the money they save on illegal downloads ends up getting spent on other content. Additionally, they often use the illegal downloads to sample material before they buy, helping to spread the word about lesser-known artists in the process. According to the researchers:

It seems that the majority of the music that is consumed illegally by the individuals in our sample would not have been purchased if illegal downloading websites were not available to them. The complementarity effect of online streaming is found to be somewhat larger, suggesting a stimulating effect of this activity on the sales of digital music.

It's worth pointing out several caveats: (1) this study is considered highly controversial in a lot of circles, (2) the focus of the study was on music downloads and did not extend to other digital content, and (3) all of the subjects in the study were Swiss citizens who are generally WAY more law abiding than Americans.

Even still, it's a tempting theory. While I'm not convinced illegal downloads could raise much awareness for a show with the brand recognition Breaking Bad has, you can see where this might benefit artists who don't have the reach or cultural cache that Gilligan commands. After all, with increased awareness comes greater financial success.

But that doesn't mean Gilligan approves of piracy:

The downside is that a lot of folks who worked on the show would’ve made more money, myself included. But you know, like with most things, there’s two sides to the coin. We all need to eat, we all need to get paid, and I get paid very well, I can’t complain.

Which is exactly why pirating content is not something I can ever really support. Sure, Gilligan and stars Bryan Cranston and Aaron Paul are making bank no matter how often the show is stolen (the finale was illegally torrented half a million times), but most of the people who worked on that show aren't making Cranston-money. They're working stiffs like you and me. Money not spent on a show they worked hard on is money they don't get to see. And most artists don't ever get to work on something as high profile as Breaking Bad, so they'll feel that loss all the more.

Here's what I wrote last year on this topic and even in light of the Swiss study, I stand by these words:

[W]hen you legitimately purchase copies of movies and music, you’re telling the artist that you support her. You put her in a place financially where she can continue generating the stuff you love.  When you steal a movie or piece of music, you’re telling the artist that you don’t care if she can make a living and you’re threatening her ability to continue generating that work.  Help me keep artists working and put a stop to the torrenting.

Ellen Page And The Strange Case Of The Misappropriated Likeness

It’s been a weird couple of months for Ellen Page, the elfin actress behind Juno. A few months ago, her likeness was stolen for the hit video game The Last of Us. Now, a video game that she actually participated in and lent her likeness to, Beyond: Two Souls, has featured her in a digital nude shower scene, pictures of which leaked without her consent, and which show the whole shebang.

Let's talk about The Last of Us first. Back in June, the video game made a splash, and not just because it was a critical hit. One of the game's main characters, Ellie, looked suspiciously like Page, so much so that people were asking Page if she acted in the game (she didn't). In fact, early concept art of Ellie art didn't just resemble Page, it was clearly her face.  Behold!

The one on the left is the concept art of Ellie and the middle is the version of Ellie that appears in the game, altered to look less like Page. If you're not convinced by these side-by-sides, just google "last of us ellen page" and you'll see comparison after comparison. What's striking is how even after the developer, Naughty Dog, changed Ellie's appearance, she pretty much still looks just like Page.

Anyway, Page caught wind of this and instead of suing the pants off Naughty Dog, she said this:

I guess I should be flattered that they ripped off my likeness, but I am actually acting in a video game called Beyond: Two Souls, so it was not appreciated.

Naughty Dog is pretty lucky Page isn't lawsuit-happy because she has a solid case for Appropriation of Likeness, a tort that prohibits the use of someone's name or likeness for commercial purposes without their consent (in California, name and likeness are actually protected by statute - California Civil Code Section 3344(a)). If she decided to sue, she could put Naughty Dog out of business.

So now we arrive at Beyond: Two Souls, the game that Page actually participated in by doing the voice and motion capture (see pic above) for her character. At one point, the game features a scene with digital version of Page's character taking a shower, all of her lady parts tastefully obscured. Unfortunately,  pictures from a developers-only version of the game leaked out, showing those lady parts in their entirety (Page, of course, did not pose nude for this scene. She filmed her role wearing a mo-cap suit - a leotard fitted with digital nodes that capture her movement).

Who's to blame? The game's developer, Quantic Dream, seems like the obvious target since it made the nude model to begin with; without the model, this controversy would never have arisen (in the law, we call this "direct causation"). But Quantic Dream claims that it made it impossible to view the model's lady parts within the course of normal gameplay. Their story is that an unauthorized developer took the model and filled in the blanks, as it were. So is Quantic Dream off the hook because someone found a way to view that model in an unintended way? And even if Quantic Dream was the right party, could Page sue the company for Appropriation of Likeness? She did permit the use of her face, after all, but does her "likeness" extend to her other features? Consider also that since Page didn't actually pose nude, all the "blanks" that were filled in by the unauthorized developer were done from imagination - does that alter the analysis? At this stage, it's unknown whether Page had an anti-nudity clause in her contract, and whether a 3D rendering of her body would qualify for the purposes of an Appropriation claim (there's some case law indicating that it might qualify). Basically, there are a lot of unknowns.

Here's what makes the whole thing even more fascinating: Sony, Beyond's distributor, is also the distributor for The Last of Us. This puts them in an awkward situation vis-a-vis their relationship with Page. Twice in one year she's become a victim of a high-profile game they released.  And once the pictures are out in the world, they're out there; there's no getting them back.

It'll be interesting to see if Page decides to pursue the matter legally. In the meantime, I'm sure she's learned her lesson: no more video games with Sony.

Off With Their Heads! Graphic Content On Facebook Is Judged By A Disturbingly Uneven System

I've never seen a video of someone being decapitated. I don't think I could handle it, frankly. Whatever morbid curiosity I possess, there are limits to the lengths I'll go to satisfy it. But if your curiosity was harder to tame and you wanted to watch such a video, then you probably won't have to look very far. A few days ago, Facebook lifted a six month old ban on decapitation videos (the ban originated over a user-posted video that showed a Mexican woman beheaded for committing adultery). Facebook now allows users to share graphic videos of decapitations because, according to a Facebook rep:

When people share this type of graphic content, it is often to condemn it. If it is being shared for sadistic pleasure or to celebrate violence, Facebook removes it.

Condemnation or not, Facebook backpedaled today and removed the video that started the whole mess after a public outcry that included Facebook users and British Prime Minister David Cameron. Facebook insists, however, that it didn't change any of its policies, nor will it inherently prevent other violent videos from being posted in the future. Each video will be reviewed on a case by case basis. Turns out that public pressure was a good tool to use in this case because there really are no legal mechanisms that prevent Facebook from allowing users full reign to post whatever content they want. Here's why...

1. Facebook doesn't owe a contractual duty to protect its users from any kind of harm. In fact, Facebook states pretty clearly in its terms and policies that it does not

control or direct users' actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, or any user of Facebook.

2. Even if Facebook didn't have contractual protection through the above disclaimer, any tort-based lawsuit against the social network would fail because federal law absolves internet service providers like Facebook from legal responsibility when obscene content is posted by their users. The Communications Decency Act (CDA), which was originally passed in 1996 to regulate pornography on the internet, states that

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It's worth noting that the CDA also prevents users from suing Facebook if Facebook removes content it deems to be obscene or violent. This means that the CDA is a Teflon-coated Kevlar shielded brick wall sprayed in bullet repellant; Facebook is essentially lawsuit-proof.

So if Facebook can't be sued for letting users post the videos, why did it lift the ban after six months only to backtrack when the public freaked out? My guess is that in the absence of litigation, public opinion is all Facebook can rely on to drive its policies. And, until recently, the public has been largely silent on the issue of graphic, violent content. In other words, Facebook assumed that people didn't care about violent content, so it let users upload the videos until the outcry became impossible to ignore.

But this raises a question that I actually find more interesting. Why has Facebook's handling of violent content been so much less even than its handling of sexual content? (For those who don't know, Facebook has a blanket policy to remove all nude media from user accounts, including breastfeeding pictures.) Call me crazy, but I have a hard time understanding why a photo of a mother breastfeeding her child, even when her breast is fully exposed, is more offensive than a video showing some poor fellow having his head sawed off, even when the reason for posting that video is to criticize and condemn the act. And it's not like the public has been silent on this issue either. When I googled "Facebook bans nude pictures," I got 38 million results.

I personally don't have a problem with Facebook censoring any user content (the First Amendment, remember, only applies to government censorship... Facebook as a private party can censor as much as it wants), but I'd like for its censorship policies to at least have some semblance of uniformity, especially if it won't explain why a photo of a boob is somehow more onerous than a severed head, or why decapitation videos get individual reviews by the Facebook team, while nude pictures get a ban hammer. I hope that we can convince Facebook that sexual content deserve at least the same type of case-by-case scrutiny that it gives to decapitation porn. If not, I fear the puritanical society we may one day become.