Archive for the 'Copyright Law' Category

Eminem Takes On Belgium: Cleanin’ Out My Daydream

Published
by
Bianca Moha
on April 14, 2008
in Copyright Law
. 3 Comments

The 5 year controversy about Eminem’s track “Cleanin’ Out My Closet” and Raymond Vincent’s “Daydream” seems to be nearing the end.

What’s the controversy about?

This particular case has raised questions about the copyright law and its interpretation in Belgium. In the United States, the Plaintiff must prove that the defendant had access to the work and that the works are substantially similar. It is understood that, in the case of music, there will be songs that are alike, as long as the songs aren’t copied and directly lifted from another song.

Eminem | Cleaning Out My ClosetWhat’s unique in this case, due to the fact it centers in Belgium, is that the lawyers have stated that the defendant does not have to prove that they (meaning Eminem in this case) had access to the other song (Daydream), especially when the songs are somewhat alike. The situation is that Raymond Vincent’s “Daydream” was written before Eminem (Marshall Mathers) was born - and on top of that, was written in another country.

In 2002, Raymond Vincent contacted the Belgian Society of Authors, Composers, and Publishers (SABAM) and stated that he believes Eminem’s song had broken the copyright rule and had a portion of Vincent’s song in his song.

In 2003, Vincent again petitions to the SABAM. This time his goal was to block royalties for Eminem’s song. SABAM reviewed the claim. As a result of this, BMI (Broadcast Music Incorporated, a collecting society for composers’ copyrights) sends a letter to SABAM noting their opinion of the infringement after they review and comparison of the two songs.

In this letter from BMI, they declare that the song “Daydream” has three different themes. The first theme was composed by Raymond Vincent while the other two themes were inspired by the second movement of a Tchaikovsky string quartet “Swan Lake”. The committee, after deliberation, found that a part of “Cleanin’ Out My Closet” was very similar to a section of “DayDream”. At MIDEM (Marché international de l’édition musicale, the world’s largest music industry trade fair), SABAM’s executive director claimed that his organization offers a service which provides an expert opinion about the music.

In 2005, Raymond Vincent and BMG appeared before the Brussels Regional Court. The court reviewed SABAM’s opinion. In December 2007, the appeals court wrote, “It is very clear that nothing has been borrowed, particularly when the two pieces are superimposed, which makes the difference between the two very noticeable, producing a cacophony,”

The court has also stated that SABAM’s opinion had “no binding value”, that the opinion was “poorly substantiated”, and that the opinion was “not based on any concrete demonstration by the six experts allegedly consulted by SABAM.”

Another interesting point that the court wrote was that Raymond Vincent’s song Daydream’s first theme was also inspired by Tachaikovsky, not just the second and third themes.

Reaction from Eight Mile Style Music

“I was in the studio with Jeff and Marshall,” says Joel Martin of Eight Mile Style Music. “It was absurd that they used any portion of an obscure Belgian song (written) before Marshall Mathers was born. And if rappers were to use old records, they would use the records. They don’t steal a melody.”

Also, Martin says that some societies like JASRAC (Japanese Society for Rights of Authors, Composers and Publishers) had stopped sending accountings and payments as a result of SABAM’s letter. Mentioned was that SABAM believes it was in their rights to send out the letters. In their view, The Belgian Ministry of Economics requires that SABAM protect the right’s of their members around the whole world. They feel that must be strong with their actions, even if it means that they have to go to a face-to-face meeting with another association. They believe they are in the right to withhold the royalties on a song until the dispute about the rights of one of their members is finished and resolved.

What do you feel about this situation? Who was in the right: Eminem and Eight Mile Style Music or Raymond Vincent and SABAM?

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HBO Wants to Change DRM to Something More Friendly

Published
by
Michael Law
on December 27, 2007
in Copyright Law
. 1 Comment

From Ed Felten:

People have had lots of objections to Digital Rights Management (DRM) technology — centering mainly on its clumsiness and the futility of its anti-infringement rationale — but until recently nobody had complained that the term “Digital Rights Management” was insufficiently Orwellian.

That changed on Tuesday, when HBO’s CTO (Chief Technology Officer), Bob Zitter, suggested at an industry conference that DRM needs a name change. Zitter’s suggested name: Digital Consumer Enablement, or DCE.

HBO CTO Robert Zitter PhotoThe irony here is that “rights management” is itself an industry-sponsored euphemism for what would more straightforwardly be called “restrictions”. But somehow the public got the idea that DRM is restrictive, hence the need for a name change.

Zitter went on to discuss HBO’s strategy. HBO (Home Box Office) wants to sell shows in High-Definition, but the problem is that many consumers are watching HD content using the analog outputs on their set-top boxes — often because their fancy new HD televisions don’t implement HBO’s favorite form of DRM. So what HBO wants is to disable the analog outputs on the set-top box, so consumers have no choice but to adopt HBO’s favored DRM.

Which makes the nature of the “enablement” clear. By enabling your set-top box to be incompatible with your TV, HBO will enable you to buy an expensive new TV. I understand why HBO might want this. But they ought to be honest and admit what they are doing.

I can think of several names for their strategy. “Consumer Enablement” is not one of them.

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Fair Use Debate: People Posting Your Private Photos on Forums

Published
by
Michael Law
on December 6, 2007
in Copyright Law and Torts
. 4 Comments

From Rebecca Tushnet:

Two Yale Law School students have sued posters on a law school discussion board (AutoAdmit, also known as Xoxohth) for defamation, related torts, misappropriation of personality, and copyright infringement, for reposting candid photos that were part of one student’s online collection at her own page.

What happened (Wash. Post article) to these students was inexcusable — they were harassed, threatened and defamed, and I have subzero sympathy for the defendants, who may have thought that using pseudonyms exempted them from the ordinary requirements of humanity. But — I did write a whole article about this type of copyright issue. And I think copyright is the wrong tool, though privacy torts might be the right ones.

As Feministe summarizes, the misogynist posters on the site, among other things, suggest that a woman who has the temerity to post ordinary pictures of herself on a general webpage has to expect that others will post crude fantasies and threats about her. Their “asking for it” argument is nothing new, but it’s structurally similar to the argument the court accepted in Nunez v. Carribean International News Corp., 235 F.3d 18 (1st Cir. 2000): a debate over the existence and presence of the picture itself is at least a modestly transformative context for the copying. And here the individual posters’ use of it was noncommercial.

The middle two fair use factors (creative but published; entire picture copied) favor the plaintiff a little but rarely matter. The effect on the market depends on whether we analyze the market for photos as a whole or segment it; courts have inclined towards the latter, at least in transformative use cases. There’s not much market for uses of candid photos in discussion threads. The fact that they’re candid wouldn’t necessarily excuse the New York Times from paying if it used the shot to illustrate a story, but it makes copyright’s incentives less important. So: fair use and criticism of women’s bodies, once again joined.

Separately, there are barriers to the misappropriation claim, specifically the fact that the posters didn’t benefit commercially from their acts. The IP claims have the great virtue, from the plaintiffs’ perspective, of being available against the website because they’re exempt from section 230 of the CDA, but here the plaintiffs didn’t sue the site, so I’m not sure losing the IP claims would be all that harmful to the outcome. (Another relevant consideration: the copyright claim gets them into federal court.)

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