Intellectual Property Law

Will Hollywood Sue Slate for Copyright Infringement?

By Cynthia Brumfield

A few days back, I weighed in on a debate between NBC-U's Rick Cotton and Columbia's Tim Wu and I'm fearful that in the process I may have gotten the Washington Post-owned online publication Slate in hot water with the Hollywood cops. Here's the backstory: in commenting on the debate, I argued that Wu's position on "fair use" (which he said should cover work that adds to the value of the original, as opposed to substituting for the original) is the better one in terms of ensuring intellectual advancement while simultaneously not harming rights holders.

To bolster my point, I used the example of an amusing mash-up that appeared on Slate V that interspersed scenes from the Paramount film "Election" with footage of Hillary Clinton and Barack Obama. I proclaimed the Slate V mash-up an excellent example of fair use under Wu's definition.

Not so fast, says CNET blogger and informatics PhD candidate Chris Soghoian referring to my post in his own post entitled "Did Slate Violate Copyright Law?" Soghoian would bet some fine bottles of wine that the snippets of footage appearing in the Slate video were ripped from a DVD. If so, the mash-up is afoul of the Digital Millennium Copyright Act (DMCA), which forbids the circumvention of anti-copying technology. Hollywood films on DVD are almost always protected by encryption. (Public Knowledge's Alex Curtis also hinted that the mash-up violated the DMCA in this way.)

How does this connect back to Slate's right to fair use of "Election?" Courts have ruled that the fair use exception applies only to authorized copies of works. If Slate used DVD ripping software, its copy of "Election" is probably not authorized. Ergo, the mash-up isn't covered under fair use and Slate is infringing upon Paramount's copyright.

I'm not an intellectual property lawyer and I can't really judge whether this argument holds water. Moreover, it's possible that Slate obtained permission from Paramount to cut through the anti-copy protection algorithms and reproduce the scenes from "Election." It's also possible that Paramount provided the unencrypted scenes directly to Slate, although the video's credits don't carry the customary "used with permission" acknowledgment.

Regardless of whether Slate technically violated the copyright laws, Soghoian is trying to make a bigger point. Most people aren't aware that ripping DVDs is illegal and Hollywood tends to go after the little guys.

Most users have no idea that DVD ripping is illegal. Most artists, mashup creators and video-bloggers are in the dark about the potential crimes they may be committing. Furthermore, the RIAA and MPAA have a long history in going after the little guy.

Soghoian is also trying to stir up a little trouble here in an effort to generate bad publicity for what he considers to be this harshly limiting provision of the DMCA. If the MPAA or Paramount were to sic its lawyers on The Washington Post Company, that would be news and perhaps "lead to calls for an overhaul of the DMCA (I can dream, right)?"

Yeah, Chris, I think that is a dream. The two giants will work it out behind the scenes. No way would Paramount want to make an issue out of this mash-up, involving as it does political speech, not to mention a storied corporate foe, one that has fought for free speech to the Supreme Court and back again and one that has gone toe-to-toe against the most powerful of all legal adversaries, the federal government, and emerged victorious.

Now, if Chris or I or Joe Blow blogger had made that mash-up, I'd be willing to wager those same fine bottles of wine that the nastygrams from Paramount's lawyers would arrive within 10 days, at the max. In any event, mash-up makers take note: it looks like fair use might not protect you if you use DVD ripping technology.

Full post as published by IP Democracy on January 19, 2008 (boomark / email).