For those who think that the "parody" defense has always provided a clear and fair outlet of escape from copyright's harsh restrictions, you might want to read up on the time in the 1950's when Jack Benny was banned from airing a parody of the 1942 film (and 1939 play) "Gaslight" for a television show he was doing.

Original news coverage after the 1958 Supreme Court decision can be found here:

http://news.google.com/newspapers?id=tX8PAAAAIBAJ&sjid=-YcDAAAAIBAJ&dq=jack%20benny%20supreme%20court&pg=5150%2C2765550 [The Victoria Advocate]

and here:

http://www.time.com/time/magazine/article/0,9171,937550,00.html [Time Magazine]

Classic lines from Time's coverage:

From now on, Benny intends to get permission of anybody he parodies. Gloomed he: "I suppose now they won't even let me do Birth of a Nation. They're afraid we'd hurt the picture."

While I regretfully cannot find an on-line link to a copy of the article, AP television writer Charles Mercer wrote in his syndicated column that week (March 22, 1958):

"Actually, television felt the effects of the suit long before the Supreme Court ruling. If memory serves, we have not seen an all-out parody of any copyrighted work on television since the suit was filed. Television, as everyone knows, is a mighty cautious industry.

Issuing a personal opinion on the ruling, I'm sorry as a television viewer that Benny has lost the case. It's one more nail in the coffin that fate prepares for TV comedians. It further limits the area in which they are permitted to try to make us laugh.

Parody is one of the most ancient and honorable forms of public entertainment. Suddenly to find it illegal is astonishing - and a little frightening in the area of freedom of expression."

Well said. Here is one of the nation's most prominent television critics at the time effectively admitting that a single copyright suit prevented countless of creative comedic works from being produced at the time - a shameful fact that is surely ignored in most law school and history classes today.

The 9th Circuit decision dealing with the jack Benny case can be read here:

http://openjurist.org/239/f2d/532/benny-v-loews-incorporated-columbia-broadcasting-system

The subsequent and brief (4-4) Supreme Court decision simply read without explanation:

PER CURIAM.

The judgment is affirmed by an equally divided Court.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

You can find a copy of it here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=356&invol=43

A subsequent parody case which cast criticism on the decision makes for interesting reading here: http://cip.law.ucla.edu/cases/case_berlin_ec.html

The bottom line is that the so-called "parody" protection from copyright has always been an opaque crock. It is no clearer now than it has been in the past, but creative works are still being stifled from fear of treading on copyright's parameters:

http://scholar.google.com/scholar_case?case=15758460119711775481&hl=en&as_sdt=2&as_vis=1&oi=scholarr

http://blogs.law.harvard.edu/yuminemma/files/2009/12/cat-not-in-hat1.jpg

http://grove.ufl.edu/~techlaw/vol9/issue1/collado.html

ADDENDUM: I recently came across yet another Jack Benny-related copyright outrage here:

http://boingboing.net/2010/01/18/cbs-uncovers-rare-ja.html

Oh, the irony. Even in death, the copyright regime still torments him.

Warner Pulls The Plug On 'We Con The World'.

Read about it here:

http://pajamasmedia.com/eddriscoll/2010/06/12/warner-pulls-the-plug-on-we-con-the-world/

A federal appeals court on Thursday lifted a lower court's order that a well-known financial news aggregator delay the re-publication of prominent financial analysts' buy and sell recommendations.

Read More here: http://www.wired.com/threatlevel/2010/05/hotnews/#ixzz0oXrOdgIT

The courts need to drive a stake through the heart of the bogus "hot news" doctrine. The fact that it has even got this far through the court system is a disgrace. It represents a clear and present danger to the First Amendment which needs to be beaten back hard.

This weekend, my copy of Fredrik Colting's "60 Years Later: Coming Through The Rye" arrived in the mail. I had to order it from Europe, because its currently banned here in the U.S.

The courts are still considering the question of keeping the ban in place, but for now, it remains banned, and the Appeals Court has strongly hinted that a fair use defense will likely fail.

Background here [PDF link]:

http://www.ca2.uscourts.gov/decisions/isysquery/ef45934b-3434-4217-9dd1-52d6d97736b6/1/doc/09-2878-cv_opn.pdf

I have added this to my growing collection of books that have been banned in the U.S. When I read them, I feel like the way Guy Montag must have felt while secretly reading his banned books in "Farenheit 451".

My collection also includes Alice Randall's "The Wind Done Gone", which subsequently became available in the U.S., though I had acquired my copy during a time when it was still banned under court order.

Herbert W. Armstrong's "Mystery of the Ages" remains banned in the U.S. The background as to how that came to be can be found here:

http://www.authorslawyer.com/case/227F3d1110.html

It still seems surreal for me to have to come to grips with the fact that courts are in the regular habit of banning works of literature in the U.S., and the notion that there are places in the world more free than my own country in terms of allowing people to read what they want to. I had always equated book banning with fascist regimes, not my dear grand U.S. of A. But alas, these lines have now been blurred. Such is the natural result of the extreme copyright regime that the legal system has imposed upon us.

I have never understood people who become justifiably apoplectic when the government bans books at the behest of a political party in power, but then remain silent (or even offer their support) when the same government power bans books at the behest of private corporate interests. The end result is the same. A free mind who wishes to explore creative works and form artistic judgments on them is prevented from doing so by force of law.

Rather than openly exercise my free mind in a free society, I am forced to become Guy Montag - effectively having to find Underground Railroad societies in order to obtain books I want to read, and hoping that the Firemen do not come knocking on the door to take away my possessions and burn them at the behest of authors who have long since perished.

UPDATE: As the comments section has revealed, the copyright owner of "Mystery of the Ages" eventually sold its rights, allowing the work to be distributed again after being banned for more than a year. Again, this is another instance of my acquiring a copy of it while it was banned. More details of how they tried to keep it banned for some time are revealed here:

http://www.raisingtheruins.com/index.php?page=synopsis

http://www.pcog.org/battle.php

The key point is that distribution became available again not as a matter of right, but only because the prevailing plaintiff in the case changed its mind in allowing distribution to go forward (in accordance with the wishes of the author who actually wrote it).

Glenn Thorpe draws our attention to a good article about the role of patents in video codecs. The brief story: video codecs are used to compress the storage of videos. Camcorders use codecs to record, and video devices use codecs to playback. This is about the use of codecs to record. The big players - including most camcorder makers, Apple and Microsoft - record using codecs that are encumbered by patents. In particular the license allows the recording that is made with the codec to be used for "personal use and non-commercial use" only. I'm dubious of the legality of this - perhaps some of our patent lawyers can comment on this? But regardless the threat of a lawsuit it there: if you were to shoot a film using a camcorder and sold the film and made a lot of money (not that likely - but then again there is Witch Mountain) you can be pretty sure you would get sued.

The bottom line: the patent holders on parts of video compression technology are trying to use their patents to tell us what we can do with content we create using their recording devices.

Powerful piece by Jeff Tucker: If You Believe in IP, How Do You Teach Others?

November 16, 2009 7:43 AM by Mises Daily (Archive)

The MIT model is the model of the ancient world and every university environment ever since, and it is the only way to deal with a digital society in which every thought becomes globalized upon utterance. FULL ARTICLE by Jeffrey Tucker

Let me highlight a few excerpts from Google digital library plan opposed by Angela Merkel: German chancellor opposes the internet firm's attempt to put every book ever written online:

German chancellor Angela Merkel yesterday waded into the row over Google's plans to build a massive digital library.

The move was a remarkable intervention from a leading world politician in a growing dispute about the threat posed by the internet, and Google in particular, to publishing companies, authors and also newspapers.

In her weekly video podcast, before the opening of the Frankfurt Book Fair this week, Merkel appealed for more international co-operation on copyright protection and said her government opposed Google's drive to create online libraries full of scanned books.

"The German government has a clear position: copyrights have to be protected on the internet," Merkel said, adding that there were "considerable dangers" for copyright protection online.

Isn't this astonishing? I thought "the goal" of copyright was to promote the spread and growth of human creativity. Now it appears "the goal" is to protect copyright itself. This reminds of government school advocates who say they "believe in public school"; who oppose any attempt to reform or privatize public school because it might threaten public schooling--when the goal of public schools is supposed to be education. Google's "plan would make millions of out-of-print books available online and thus would not cannibalise existing sales, as those books were not readily available to buyers. Google argues that it is increasing access to works that would otherwise never see the light of the day." But the state fears the unregulated behavior of free people. Who knows what people might do with this information? If you let people freely connect and communicate in a digital world, the state's copyright and other regulations might not even reach them! And we can't have that!

So these atavistic brutes want to kept information locked up in musty paper because of a fear that some people might learn things without dropping a nickel in the Galambosian box. If they don't understand it, if they can't control it--Hulk smash! Doesn't this recall the heartless zeal of drug warriors who are willing to deny suffering people medical marijuana because the only way to effectively outlaw recreational marijuana use is to allow no exceptions. And we have to prevent recreational marijuana use... don't we? We have to protect copyright, don't we? We have to have government education, don't we? I mean, who can imagine the horrors of a dystopian world where people were free to use marijana; where they had hundreds of millions of books available any time, at their fingertips; where states are not able to brainwash and propagandize students in their little loyalty-factories.

[LRC cross-post; SK cross-post]

I wrote previously on the Troll Tracker case (see Update on Patent Troll Tracker; Troll Tracker Lands Job Fighting Patent Trolls!). This case concerns defamation suits filed against "Troll Tracker," aka Rick Frenkel, by two Texas lawyers, in the aftermath of Frenkel's identity being revealed, after bounties put up by one of the subjects of his criticism, patent attorney Ray Niro. (It's convoluted, but all you need to know is that Frenkel is the good guy here.)

An updated is provided by Dennis Crouch on Patently-O in Troll Tracker Defamation Lawsuit: Trial Underway. As Crouch notes,

Eric Albritton's defamation lawsuit against Rick Frenkel and his former employer Cisco Systems is underway in the Eastern District of Texas. In my opinion, the case is ridiculous. However, it should serve as a reminder that those vehemently against certain types of speech can often shut-down that speech. Frenkel has indicated that he will not revive his troll tracker blog.

Yet another example of how state law and institutions--including defamation law, state courts themselves and the hideous expense they impose and the injunctive remedies available to judges, and the admixture of IP law--chills free speech.

[StephanKinsella.com cross-post; Mises blog cross-post]

Check out this controversy concerning the 'unauthorized' use of a photo which depicts the President smoking when he was a student:

http://voices.washingtonpost.com/reliable-source/2009/08/rs-norml5.html

The person who snapped a photo of Obama smoking a cigarette in a manner similar to joint objects that others might use it to make "political" statements.

"They do not have my permission," said Jack, a psychology professor in Minnesota. These photos "are absolutely not to be used in this way. ... I really made a grand effort to do this properly, and I'm very irritated. If I'd wanted these to be used for political purposes, I'd have sold them to Hillary years ago."

Even under the current stifling copyright regime, the claim is problematic. The creators of the poster cropped a significant part of the original photo and put a green tint on it. The only 'creative' element they ultimately copied is the pose supplied by Obama himself - not any creative elements that are inherent to the underlying photograph. There would seem to be a strong case to be made that is an instance of 'transformational' fair use.

Regardless, some of the comments made at the Washington Post sight are sad to read. People are happy to censor political speech under the guise that such speech is somehow "stealing" from other people.

The full text of the judge's opinion granting a preliminary injunction against the "unauthorized" 'sequel' to Catcher In The Rye (effectively banning its publication in the U.S. even though it can reportedly be found in Europe) can be read in PDF format HERE.

I still don't see how you can square the decision with the NY Times v. U.S. case which sets a remarkably high barrier to overcome a prior restraint of free speech.

[That case can be read HERE.]

Keep in mind, this wasn't a trial on the merits. This was a decision to enjoin the book and ban its publication PENDING a trial on the merits when fair use/parody defenses can be more fully fleshed out.

Some may argue that the NY Times case can be distinguished because it was the government that wanted to ban the speech in question - not a private author. But this distinction doesn't fly in my opinion. Courts have still been very hesitant to enjoin speech in libel, obscenity and even national security contexts. The plaintiffs in libel cases are often private citizens - not government figures. Why the courts choose to ignore their own dictates on the unconstitutionality of prior restraints in the context of IP cases is beyond me.

As Professor Volokh OBSERVES, cases like this force judges to become "literary critics" and make decisions about the law based on their personal aesthetic judgments.

Absolutely insane, and an utter disgrace to the very concept of law....