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Copyrights in the News

February 5th, 2007

I’ve got three different copyright stories, all within a 24 hour period. Clearly the world is beginning to take notice.

First up, the “creator” of the Electric Slide has issued a DMCA take down notice to YouTube for videos where the Electric Slide is being performed incorrectly. First, to silence all of those “the DMCA goes to far” folks (of which I am, arguably, one of… but not in this case), the DMCA is only involved here because YouTube has a chance to avoid contributory liability by taking down the material. The original poster of the material can then serve notice to YouTube that the material is not infringing, at which point YouTube must repost it. Then, YouTube having done its part, it’s up to the two parties to resolve the issue. The real issue here is one of basic copyright law.

Which presents an interesting question: can dance moves be copyrighted? The expert from the CNet article (Jason Schultz of the EFF) seems to pass this question off as if it’s a no-brainer. Just like a song, performing it without permission is a violation of the §106 of the Copyright Act. But I’m not convinced. To perform a dance I must follow a series of steps, also known as instructions. A series of instructions is generally referred to as a process… and processes, as a rule, are not copyrightable. They are not copyrightable because in this country we protect processes through the patent system. It’s very easy to state the rule: “patent ideas, copyright expression.” I could make the case that dance steps could be either, but by law it cannot be both.

That’s not even the most interesting question… see, the videos he wants taken down show the dance performed incorrectly. Which means that if it were patented, he would have no action (except, maybe, for this thing called the Doctrine of Equivalents, and I don’t want to talk about that). On the copyright front, there is no literal copying, so you get into a whole fair use thing. Not to mention, if the rights holder is saying “I grant a license to people to dance this correctly,” is there an implied license to dance it incorrectly?!

Next story, from the Washington Post, the GW Hatchet ran a story a few days ago which was picked up by the local TV station. Who in turn did not bother to credit the paper. They argue the idea of the story cannot be protected, thus they have no responsibility to attribute, much less seek permission. But, the Post reports the story used direct quotes from the college paper… that is copyright infringement. But putting that aside, I think the legal obsession with copyright has gone too far. It’s not a question of whether the paper is bound by law to attribute, but whether it was the right thing to do.

Lastly, Mikhail Gorbachev is appealing to Bill Gates to drop a criminal suit against a Russian school headmaster who is accused of using unlicensed copies of Windows in the school. Apparently former heads of state don’t have a lot to do these days. But it raises two interesting points. First, why are we talking criminal charges? Who was harmed in a way that requires punishment beyond restitution? Make the school pay, remove the software, whatever… but jail? Second, Microsoft is in a great position now to push out a marketing and political win. It agrees to give the school the pirated software, free of charge, and lets the guy off the hook. Now you’ve got another school district locked into the Microsoft hegemony and they get to make nice with the Nobel Peace Prize winner. What I don’t understand is why this issue is on Gorbachev’s radar. Is this the beginning of a larger campaign for my humane copyright laws?

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