GoldieBlox & 3 Little Beasties: Viral Video a Fair Use?

 (Photo credit: Wikipedia)

In the eyes of their adoring fans, what can make the 32-year-old Beastie Boys hip-hop band unhip?

How about a copyright infringement war against an educational toy company whose viral video encourages girls to become engineers that is taking shape in the United States District Court for the Northern District of California?

In an eight-page complaint, GoldieBlox, Inc. v. Island Def Jam Music et al (Case No. 3:13-cv-05428), the plaintiff, a San Francisco-based company founded by a Stanford alumna that makes games and toys intended to draw girls to technology and science, seeks injunctive relief and declaratory judgment from the court that a two-minute video that already has drawn more than eight million views is protected by the Fair Use doctrine [17 U.S.C. sec. 107] against a potential copyright infringement claim over the video's parody of a Beastie Boys hit Girls, from its 1986 Licensed to Ill album.

The video at issue depicts girls erecting an elaborate gizmo to the Beastie Boys tune with altered lyrics that include: "Girls to build the spaceship/Girls to code the new app/Girls to grow up knowing/That they can engineer that." The corresponding original lyrics are far less politically correct: "Girls to do the dishes/Girls to clean up my room/Girls to do the laundry/Girls and in the bathroom/Girls, that's all I really want is girls."

The surviving original Beastie Boys are Adam Horovitz ("Ad-Rock") and Michael Diamond ("Mike D"). An original band member, Adam Yauch ("MCA"), succumbed to cancer last year, and a provision of his Will purportedly says the band's music should never be used for purposes of advertising, which could be significant if he solely held the copyright to Girls, according to a Forbes magazine account of the suit.

Horovitz and Diamond sent an open letter to Goldieblox praising the creativity of the video and supporting the notion of attracting girls to science and engineering through construction toys and the like, but pointedly saying the video constituted an advertisement, an affront to their philosopy about commercialism, and more to the point, an alleged infringement of copyright.

The four factors a court weighs in deciding whether the fair use defense should shield an alleged infringer involves looking at the purpose and character of the use, the nature of the copyrighted work (fiction/nonfiction, published/unpublished) the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole and the potential market for and value of the copyrighted work.

Battle lines already are being drawn, with the First Amendment Internet advocate Electronic Frontier Foundation squarely siding with GoldieBlox. EFF concedes that the viral video's length nearly matches that of the original song, which was both creative and published, though EFF claims the Girls parody is transformative and doesn't harm the value of the copyrighted work, but, rather, sparks debate about sexist stereotypes about girls shying away from becoming engineers.

On the other hand, however noble the intentions and warm & fuzzy the video may be, the underlying hope is that the start-up company, GoldieBlox, will sell its games and toys to the video-loving public at a profit. Stay tuned. Perhaps the Beastie Boys should look to their discography and heed the advice of their 1992 album Check Your Head, or 2011 hit Don't Play No Game That I Can't Win.

Supreme Court Leaves Telcom Cos. Shield in Place

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The United States Supreme Court this week declined to hear a challenge by the ACLU and the Electronic Frontier Foundation to legislation that provides legal immunity to telecommunications companies that assist the National Security Agency in monitoring citizens' email and telephone communications.

The Associated Press reported that the High Court left in place a unanimous ruling by a three-judge panel of the United States Court of Appeals for the Ninth Circuit on December 29, 2011, that upheld a lower court ruling that the 2008 surveillance rules enacted by Congress were constitutionally permissible.

The rules, which allegedly enabled the intelligence community to engage in warrantless monitoring of Americans' communications, were targeted by the ACLU and EFF in lawsuits against various telecommunications entities, including Sprint Nextel Corp. and Verizon Communications, Inc. that claimed violation of customers' privacy.

Govt. Entitled to Twitter Records in WikiLeaks Probe, Federal Judge Rules

Image by Sean MacEntee via FlickrUnited States District Court for the Eastern District of Virginia Judge Liam O'Grady, in a three-page Memorandum and Opinion in In Re Application of the United States of America for an Order Pursuant to 18 U.S.C. sec. 2703(d) [Case No. 1:11-dm-00003-TCB], this week denied a request by Birgitta Jonsdottir, Jacob Appelbaum and Rop Gonggrijp to shield their Twitter account information from authorities seeking to prosecute WikiLeaks.

As reported by Wired, Twitter was served with a subpoena by the feds in December 2010, pertaining to a Grand Jury inquiry into possible criminal charges against WikiLeaks. The government wants information regarding the above-named individuals' accounts under the 1994 Stored Communications Act, 18 U.S.C. sec. 2703(d), which governs access by law enforcement officials to Internet data, such as transaction information, but not online content. Specifically, the order wants information about the trio's Twitter accounts, including addresses and phone numbers, account payment information (if any), IP addresses, data transfer records and connection records.

The ACLU and the Electronic Frontier Foundation contend the Twitter order violates the trio's First Amendment rights. In March 2011, U.S. District Court Judge Theresa Buchanan ruled the three lacked legal standing to challenge the records request because the government was not attempting to access actual Twitter content. Prosecutors argued that the Grand Jury probe was being stalled by the delay in obtaining the Twitter account information.

Judge O'Grady denied the petitioners' request because they failed to make a "strong showing" of success on appeal. "A stay is not a matter of right, even if irreparable injury might result," Judge O'Grady wrote.

Whither COICA?

Image via WikipediaAlthough the Senate Judiciary Committee last week by a 19-0 vote resoundingly gave its blessings to the Combatting Online Infringement & Counterfeit Act ("COICA"), Sen. Ron Wyden (D-Ore.) said: "Deploying this statute to combat online copyright infringement seems almost like a bunker buster cluster bomb when what you really need is a precision guided missile."

As reported by Jurist (http://jurist.law.pitt.edu),  the bill, which would amend Chapter 13 of Title 18 of the U.S. Code by adding Sec. 2324 Internet Sites Dedicated to Infringing Activities, would enable the Attorney General to seek injunctions against both domestic and international copyright-infringing Web sites. Wyden fears the measure could lead to Internet censorship, a position supported by the Electronic Frontier Foundation.

The EFF says COICA would affect non-infringing online content, including political speech by interfering with the Internet's Domain Name System that translates site names into IP addresses used by computers to communicate.  The EFF claims COICA would create a "blacklist" of  censored domains.