RETURN ON TECHNOLOGY: Battle brewing between big business and the Web

March 5, 2007

The Web has always been viewed with suspicion by many people, but now it's become nothing less than the cause of copyright lawsuits against Ellen DeGeneres for letting a guest dance the Electric Slide, against the Girl Scouts for doing the Macarena a satire Web site about Barney the purple dinosaur for making fun of the big guy, and against the online deal-finder site Black Friday for publishing prices from retailer Best Buy.

Back in the old days, copyright holders were much more laid-back about enforcement. You really had to plunder the old jukebox to rouse the wrathful lawyers. Publishing "content" like books, magazines, movies, TV shows and music was expensive and strictly controlled by the producers, and they were not easy to circumvent. Occasionally, there would be some dust-up or another, à la Universal v. Sony, which established your right to tape bad TV shows so you could time-delay your vegetative states.

Those carefree days are gone. Not since the Web debuted, with its multiple ways to shoot content of all kinds instantaneously from any point on the globe to any other point. Along with the Web came content that erupted fast and furiously, from everywhere, bound for everywhere. Suddenly, the market for content was multiplied several times over, and just as suddenly the traditional producers began wildly clawing at every scrap of intellectual property they had ever owned, hoping to cash in somehow, and to protect their material from being used without payment.

The government helped out by passing the Digital Millennium Copyright Act, which, among other things, keeps legitimate security researchers from doing their research and encouraged Sony to put "rootkits" on their music CDs that took over users' computers. The DMCA permits copyright holders to send a Web host a "takedown" notice if they believe the Web site is improperly using their intellectual property. The supposed violator must comply, pending a court hearing. In practice, the DMCA has become a pile of bricks that the unscrupulous are hurling through the windows of others' sites.

This is the backdrop for the Ellen DeGeneres case, in which Richard Silver, the originator of the Electric Slide, sued DeGeneres for letting guest Teri Hatcher do the dance on television. He has sent other DMCA takedown notices to the video site YouTube, demanding removal of every video showing Slide dancers.

Lawyers for the children's character Barney similarly used copyright law to sue the Barney satire site "The Source of All Evil," among other Barney humorists. Barney didn't win that one.

In a particularly egregious case, electronics retailer Best Buy has used the DMCA to threaten the site Black Friday with terrible consequences for publishing Best Buy's prices, which it claims are copyrighted. The relationship between online retailers and price-comparison sites such as Fat Wallet and Black Friday has always been a contentious one. Wal-Mart, Best Buy and Target have all played the copyright card to try to prevent comparison sites from exposing their prices.

But in perhaps the most notorious example of corporate Grinching since the NFL banned end-zone celebrations, the American Society of Composers, Authors and Publishers threatened Girl Scout operators of summer camps with lawsuits if they didn't stop playing the dance craze song "Macarena" without paying a fee first. ASCAP then went further, banning other campfire songs, too. "Edelweiss" can't be sung anymore without a license. "This Land is Your Land" is also under edict, as are "Blowin' in the Wind" and "God Bless America." You want to have a sing-a-long, you pay the fee.

Less well-known, but perhaps even more ludicrous, is the example of Wendy Seltzer, a professor at Brooklyn Law School, who published, for educational purposes, the whole text of the NFL's copyright warning, the one they read before every game on television. The NFL maintained that the copyright notice itself was copyrighted, and insisted she take it down.

As much as I abhor this constantly roiling pit of lawyerly offal, I find myself in the position of having to defend the ridiculous. Most of the copyright holders are themselves publicly owned companies, and accountable to many critics and bosses. Corporations have no consciences, only ethics. They operate according to laws and rules, not sympathies. If they did not vigorously protect their copyrights and trademarks (as the law itself makes them do), they could be held accountable for the lapse, and potentially sued themselves by profit-hungry shareholders.

Business law does not encourage or generally even comprehend the kind of languid sharing and cooperation that veteran Web denizens have as their core philosophy. The battle is being waged along a broad front, as corporate thinking and Web thinking collide online like huge air masses in a storm front. I sympathize with both. I wish we could have both. We cannot. I'm not looking forward to this storm.

Altom is an independent local technology consultant. His column appears every other week. He can be reached at timaltom@sbcglobal.net.
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