Fair Use Still Protects Histories and Documentaries—Even Tiger King

1 day 10 hours ago

Copyright’s fair use doctrine protects lots of important free expression against the threat of ruinous lawsuits. Fair use isn’t limited to political commentary or erudite works – it also protects popular entertainment like Tiger King, Netflix’s hit 2020 documentary series about the bizarre and sometimes criminal exploits of a group of big cat breeders. That’s why a federal appeals court’s narrow interpretation of fair use in a recent copyright suit threatens not just the producers of Tiger King but thousands of creators who make documentaries, histories, biographies, and even computer software. EFF and other groups asked the court to revisit its decision. Thankfully, the court just agreed to do so.

The case, Whyte Monkee Productions v. Netflix, was brought by a videographer who worked at the Greater Wynnewood Exotic Animal Park, the Oklahoma attraction run by Joe Exotic that was chronicled in Tiger King. The videographer sued Netflix for copyright infringement over the use of his video clips of Joe Exotic in the series. A federal district court in Oklahoma found Netflix’s use of one of the video clips—documenting Joe Exotic’s eulogy for his husband Travis Maldonado—to be a fair use. A three-judge panel of the Court of Appeals for the Tenth Circuit reversed that decision and remanded the case, ruling that the use of the video was not “transformative,” a concept that’s often at the heart of fair use decisions.

The appeals court based its ruling on a mistaken interpretation of the Supreme Court’s opinion in Andy Warhol Foundation for the Visual Arts v. Goldsmith. Warhol was a deliberately narrow decision that upheld the Supreme Court’s prior precedents about what makes a use transformative while emphasizing that commercial uses are less likely to be fair. The Supreme Court held that commercial re-uses of a copyrighted work—in that case, licensing an Andy Warhol print of the artist Prince for a magazine cover when the print was based on a photo that was also licensed for magazine covers—required a strong justification. The Warhol Foundation’s use of the photo was not transformative, the Supreme Court said, because Warhol’s print didn’t comment on or criticize the original photograph, and there was no other reason why the foundation needed to use a print based on that photograph in order to depict Prince. In Whyte Monkee, the Tenth Circuit honed in on the Supreme Court’s discussion about commentary and criticism but mistakenly read it to mean that only uses that comment on an original work are transformative. The court remanded the case to the district court to re-do the fair use analysis on that basis.

As EFF, along with Authors Alliance, American Library Association, Association of Research Libraries, and Public Knowledge explained in an amicus brief supporting Netflix’s request for a rehearing, there are many kinds of transformative fair uses. People creating works of history or biography frequently reproduce excerpts from others’ copyrighted photos, videos, or artwork as indispensable historical evidence. For example, using sketches from the famous Zapruder film in a book about the assassination of President Kennedy was deemed fair, as was reproducing the artwork from Grateful Dead posters in a book about the band. Software developers use excerpts from others’ code—particularly declarations that describe programming interfaces—to build new software that works with what came before. And open government organizations, like EFF client Public.Resource.Org, use technical standards incorporated into law to share knowledge about the law. None of these uses involves commentary or criticism, but courts have found them all to be transformative fair uses that don’t require permission.

The Supreme Court was aware of these uses and didn’t intend to cast doubt on their legality. In fact, the Supreme Court cited to many of them favorably in its Warhol decision. And the Court even engaged in some non-commentary fair use itself when it included photos of Prince in its opinion to illustrate how they were used on magazine covers. If the Court had meant to overrule decades of court decisions, including its own very recent Google v. Oracle decision about software re-use, it would have said so.

Fortunately, the Tenth Circuit heeded our warning, and the warnings of Netflix, documentary filmmakers, legal scholars, and the Motion Picture Association, all of whom filed briefs. The court vacated its decision and asked for further briefing about Warhol and what it means for documentary filmmakers.

The bizarre story of Joe Exotic and his friends and rivals may not be as important to history as the Kennedy assassination, but fair use is vital to bringing us all kinds of learning and entertainment. If other courts start treating the Warhol decision as a radical rewriting of fair use law when that’s not what the Supreme Court said at all, many kinds of free expression will face an uncertain future. That’s why we’re happy that the Tenth Circuit withdrew its opinion. We hope the court will, as the Supreme Court did, reaffirm the importance of fair use.

Mitch Stoltz

「固定ブロードバンドサービスの品質測定手法の確立に関するサブワーキンググループ 報告書(案)」及び「固定ブロードバンドサービスの品質測定手法等に関するガイドライン(案)」に対する意見募集

1 day 10 hours ago
「固定ブロードバンドサービスの品質測定手法の確立に関するサブワーキンググループ 報告書(案)」及び「固定ブロードバンドサービスの品質測定手法等に関するガイドライン(案)」に対する意見募集
総務省

The Cybertiger Strikes Again! EFF's 8th Annual Tech Trivia Night

1 day 12 hours ago

Being well into spring, with the weather getting warmer, we knew it was only a matter of time till the Cybertiger awoke from his slumber. But we were prepared. Prepared to quench the Cybertiger's thirst for tech nerds to answer his obscure and fascinating minutiae of tech-related questions.

But how did we prepare for the Cybertiger's quiz? Well, with our 8th Annual Tech Trivia Night of course! We gathered fellow digital freedom supporters to test their tech-know how, and to eat delicious tacos, churros, and special tech-themed drinks, including LimeWire, Moderated Content, and Zero Cool.

Nine teams gathered before the Cybertiger, ready to battle for the *new* wearable first, second, and third place prizes:

But this year, the Cybertiger had a surprise up his sleeve! A new way to secure points had been added: bribes. Now, teams could donate to EFF to sway the judges and increase their total points to secure their lead. Still, the winner of the first-place prize was the Honesty Winner, so participants needed to be on their A-game to win!

At the end of round two of six, team Bad @ Names and 0x41434142 were tied for first place, making a tense game! It wasn’t until the bonus question after round two, where the Cybertiger asked each team, “What prompt would you use to jailbreak the Cybertiger AI?” where the team Bad @ Names came in first place with their answer.

By the end of round 4, Bad @ Names was still in first place, only in the lead by three points! Could they win the bonus question again? This time, each team was asked to create a ridiculous company elevator pitch that would be on the RSA expo floor. (Spoiler alert: these company ideas were indeed ridiculous!)

After the sixth round of questions, the Cybertiger gave one last chance for teams to scheme their way to victory! The suspense built, but after some time, we got our winners... 

In third place, AI Hallucinations with 60 total points! 

In second place, and also winning the bribery award, 0x41434142, with 145 total points!

In first place... Bad @ Names with 68 total points!

EFF’s sincere appreciation goes out to the many participants who joined us for a great quiz over tacos and drinks while never losing sight of EFF’s mission to drive the world towards a better digital future. Thank you to the digital freedom supporters around the world helping to ensure that EFF can continue working in the courts and on the streets to protect online privacy and free expression.

Thanks to EFF's Luminary Organizational Members DuckDuckGo, No Starch Press, and the Hering Foundation for their year-round support of EFF's mission. If you or your company are interested in supporting a future EFF event, or would like to learn more about Organizational Membership, please contact Tierney Hamilton.

Learn about upcoming EFF events when you sign up for our email list, or just check out our event calendar. We hope to see you soon!

Christian Romero

【裁判】名和前総長の敗訴確定 北大 解任手続きは闇=山田寿彦

1 day 14 hours ago
 国立大学法人北海道大学の前総長、名和豊春氏(70)が「職員への過度な叱責」など28件の「非違行為」を理由に文科大臣に任期途中で解任されたことを不当とし、国と北大に解任処分の取り消しと経済的損失1466万円の支払いを求めた訴訟で、札幌地裁の右田晃一裁判長は3月13日、原告の請求を棄却する判決を言い渡した。名和氏は控訴せず、解任手続きの闇は解明されないまま1審判決が確定した。 ありもしない「パワハラの公益通報」を材料に北大の顧問弁護士から辞職を迫られた〝脅迫〟に始まり、名和氏の..
JCJ