I hate it when devious slobs happen to agree with me on an important issue.
I'd much rather have people like Antonin Scalia, William F. Buckley, Rush Limbaugh, and the rest of the political Right talent roster agree with my take on issues pertaining to intellectual property. But they often don't. And while these individuals are correct about enough issues to command my respect and make me listen closely when they speak, it is ultimately the issues themselves that help shape my opinions, not the people that espouse them.
Thus, it is sometimes painful to admit who my political bedfellows are on rare occasions.
And just like a broken clock that is right twice a day, Michael Moore actually said something intelligent regarding copyrights and fair use. It seems that he doesn't mind if people download his films off the Internet.
Now there is hot controversy buzzing ever since a website critical of Moore linked to another site containing files to download Fahrenheit 9/11 from.
Moorewatch.com has really put the studios
in a bind over this by using Moore's own words against them.
Oh dear Hollywood studios, be careful of the beds that you choose to lie in...
Money quote from Moorewatch.com responding to threats from Lions Gate Film President Tom Ortenberg: "Now watch this drive, bitch."
(If you've seen the film, or even the commercials for it, this quote will make sense and allow you to appreciate its wisdom.)
Moorewatch.com even has an astute analysis of how Moore's own techniques can be used by his critics, how the media dropped the ball on the file-sharing controversy, and why Moorewatch.com has no chance of being successfully sued.
"Watch this drive, bitch" indeed....You go JimK!
***
But now let's but the specific political controversy of Moore and Fahrenheit 9/11 aside for a bit and discuss the larger issue here.
The fact that Moore himself has indicated that he has no problem with file-sharing should put this specific controversy to bed (unless you are such an intellectual property statist-loving automotron that you even disregard an author's own feelings on the subject).
But let's imagine for a moment that Moore did have a problem with the file-sharing of his works.
If a film or any creative work tries to influence a nation's political policy and upcoming elections, shouldn't people be able to view the work in some limited capacity in order to respond to any allegations it might contain without having to pay its creator?
Must we pay somebody each and every time we wish to engage in political debate?
If you don't see Fahrenheit 9/11, critics will justifiably say that you have no right to criticize him or the film since you didn't see it for yourself and thus any criticisms that you may have of it are not able to be put in accurately into context.
But if you do see the film in order to counter the supporters of its political message, then you are putting money right into Moore's own pocket.
In my opinion, that is a dilemma that people who wish to engage in informed public discourse shouldn't have to face...
It seems to me that notions of fair use should expand beyond its current limits to allow people to freely engage in this political debate. Michael Moore obviously feels the same way if we are to take his previous comments at face value. He also gives disproves the lie of copyright defenders that economic considerations are the only big driving force behind creative incentives.
(For the record, I haven't downloaded the film myself. My computer is too slow and I have found the software files required to be rather cumbersome to work with.)
This would mean of course that fair use would need to expand for works beyond those with an overtly political message since the First Amendment makes little distinction between political speech and artistic speech on broader issues (campaign financing laws aside). It would be unworkable for a court to declare Moore's film "political" and thus be accessible via fair use while a painting that comments on poverty or pure aesthetics is somehow "artistic" and thus eligible for a greater degree of copyright protection.
But let's say that you are among the apparent majority that disagrees with me and wants to keep the current copyright protection scheme in place.
How do you feel about posting a transcript of the film (as opposed to the film itself) in order to engage in the political debate that Moore has generated?
If you think that posting the film itself on the internet is bad, then surely you must think that this is equally bad.
If you don't, then you probably aren't very familiar with the way copyright works. You see, a script of a film is protected by copyright every bit as much as the film itself. It is considered to be a separate creative work under the way our laws operate.
There is nothing in copyright law to suggest that a film is somehow "more" copyrighted than a script or written work.
If someone makes their own transcript of a film, then they too are violating copyright laws by making an unauthorized "derivative work" that the filmmaker or copyright owner retains exclusive rights to.
Yet for some reason, Andrew Sullivan's linking to the Red Line Rant site that carries a good portion of the film's transcript didn't generate the controversy that Moorewatch.com did by linking to a site that carries the video files of the film.
If you think that fair use rights should remain limited to the way they currently are, fine....Go ahead and make Michael Moore a rich man then when you plunk down your $10+ to see the film in order to discuss it intelligently.
But just don't insult my intelligence by claiming that its somehow OK to read a script of the film that was posted on-line without the permission of Moore or Lion's Gate Films, and then go on to state that it should somehow be illegal to download the film itself.
Flame away you intellectual property apologists from the blogsphere...
Well, one imagines that the public libraries will be buying copies. And then you can watch it for free, no?
Just like you don't have to buy a book to read it, even without permission-less internet copying.
Posted by: Sigivald at July 6, 2004 03:47 PM (Permalink)The fact that Moore himself has indicated that he has no problem with file-sharing should put this specific controversy to bed (unless you are such an intellectual property statist-loving automotron that you even disregard an author's own feelings on the subject).
Are you sure Moore owns the copyright?
Posted by: Xrlq at July 6, 2004 03:57 PM (Permalink)When you find yourself agreeing with MM, it's time to get a good whiff of yourself and make sure you pass the smell test. ;-)
(PS--Have we had enough threads on "intellectual property rights" "copyright laws" and "patents" yet? Hmmm?)
Posted by: Clark at July 6, 2004 07:07 PM (Permalink)XRLQ: I don't know if Moore owns the copyright. It is of course most often the case that studios own the copyrights on works they did not "author". So your question is entirely valid.
But naturally my comments point to the broader issue of what morally should be allowed under copyright law regardless of the legal technicality of who "owns" the copyright since "ownership" in this instance usually is derived from an abuse of "independent contractor" clauses that deprive the true "authors" from any such copyrights.
When debating the moral realm of copyright and downloading issues, certainly Moore's comments and status as the "author" should carry at least as much (if not more) weight than the studio's views if it happens to own the copyright in the pure legal sense of the term.
clark: I would have thought that my opening sentences in the post should have served as a prediction for (quite franky) unorignal comments such as your own. Either you are willing to tackle the issues and message presented, or you can create a straw man by pointing to the messenger.
If Moore were to come out tomorrow in favor of lower taxes and a curtailment of federal spending, what am I supoosed to do? Change my mind in order not to be associated with Moore's views??
As to your post script, the simple answer is "No" - we haven't had enough threads on intellectual property issues yet, because it is a vital debate that is still ongoing in our society (and likely will for a good part of our lives).
it is not the only topic I blog about, but other topics often end up on other blog sites (i.e., my Southern California law related topics end up over at www.socallawblog.com).
This happens to be a topic that interests me. Hence, I spend quite a bit of time blogging about it.
There are a number of other authors on this site to fulfill your apparent blogging "diversity" needs. If they don't happen to meet your needs, there are countless other blogs to visit.
Otherwise, you are free to lobby Justene to remove me from the site. But there is little point in blogging on what other people want you to talk about - that defeats the purpose of blogs to begin with.
Just like a world with sane intellectual property schemes - let's let the marketplace decide.
Posted by: Justin Levine at July 6, 2004 07:54 PM (Permalink)Justin: sorry, not buying it. No one "deprived" Michael Moore of anything. If he assigned his copyright to the company that produced the film (as I suspect he did), that company's "moral" (!) rights to his work are every bit as strong (or weak) as Moore's were in the first place. If the rights were his to enforce, they were his to assign.
Posted by: Xrlq at July 6, 2004 10:51 PM (Permalink)I suspect his benevolence is with regard to the twisted views of the world encased in his films. If he wrote video games you can bet he'd not be so free with his "property".
Posted by: Allan at July 7, 2004 12:36 AM (Permalink)Well, I've known plenty of farmers who will give you the bullcrap for free, but they expect you to pay for the meat.
Posted by: rs at July 7, 2004 05:38 AM (Permalink)Go away for a few hours and clark and justin ae arguing.? Sheesh. Justin's focussing on a topic that I'll never get to. all those Cheney files to pore over.
Posted by: Justene at July 7, 2004 06:21 AM (Permalink)what about moore violating Bradbury's trademark rights in his book?
Posted by: kaltes at July 11, 2004 08:43 PM (Permalink)xrlq: I always welcome a good challenge from you, but I think our disagreement stems in part from our understanding of "moral" rights. I don't believe the concept to be valid enough such that it should have tangible legal weight, but it has always been my understanding that "moral rights" can not be transferred via contract. That is the whole point (and why they differ from standard copyrights).
If you study how the concept has evolved in parts of Europe and elsewhere, you will find studies of artists being able to prevent the owners of the artist's physical paintings from destroying the work. The artist doesn't "own" their painting anymore, but they are still able to dictate how others use the property. That's why it is such a pernicious concept in my opinion.
If I recall correctly, I even think this might have been an issue with some murals on buildings in Southern California when building owners wished to paint over them (though I admit my facts might be fuzzy in this example).
The larger point is that "moral rights" as I have understood the term cannot be transferred away from the actual author (not to be confused with the "legal author" as the term is used in copyright law).
kaltes: Moore did not violate Bradbury's trademark rights. When people go to see this film, do you think they are actually being confused into seeing a film adaptation of Ray Bradbury's novel? If your answer is "no" (and it should be), then that answers the question. No trademark infringement here.
The film may evoke thoughts of Bradbury's novel due to the title similarity. But that is not a trademark violation. On the contrary - it is legitimate free speech since in Moore's warped (but legally protected) view of the world, present day America has evolved into an information controling police state similar to the one Badbury depicts in his novel. If the use of literary allusions is the equivalent of trademark violations that are punishable under the law, then I'd go so far as to say that Moore's view of America is actually correct - but not for the reasons he states.
Bradbury has every good reason to despise Moore (as do all rational people), but he doesn't have a legal claim against him.
Posted by: Justin Levine at July 11, 2004 10:57 PM (Permalink)"When people go to see this film, do you think they are actually being confused into seeing a film adaptation of Ray Bradbury's novel?"
Trademark is not so narrow. You know there is a, what, 8 part analysis, with the first 4 parts being the most significant. I forget the name of the case off the top of my head. Something to do with boats. I haven't worked on a trademark case in a few months.
Bradbury is releasing a NEW movie remake of his book. Since moore's movie is so similar, yes I think that some people will be confused. People who do not know about the book might think Bradbury's movie is some kind of sequel to Moore's movie.
In any case fair use principles do not protect Moore. He is using Bradbury's IP to parody/criticize a 3rd party (Bush), which is not protected. (Dr. Seuss Enterprises v. Penguin Books USA)
I know you aren't a big fan of IP, but you have to admit that a trademark claim here at least has some chance of success.
Posted by: kaltes at July 12, 2004 08:12 AM (Permalink)kaltes: I suspect you are refering to the AMF v. Sleekcraft Boats case.
Trademark law is much broader than it should be (in my opinion), but its thankfully not so broad as to give Bradbury a credible claim. The 9th Circuit would seem to agree with me today with a case just released:
http://caselaw.lp.findlaw.com/data2/circs/9th/0435031p.pdf
Check it out. I'd be curious to hear your thoughts after reading it.
The Dr. Suess case has rightfully been criticized in several academic circles. My own take on that case can be found here:
http://www.calblog.com/archives/003363.html
Posted by: Justin Levine at July 15, 2004 03:14 PM (Permalink)Looks like the 9th Cir. found that:
(1) the trademark at issue was very weak ["playmaker" would be generic or descriptive, and would have only the weakest protection].
- Bradbury's mark is stronger, and is perhaps even entitled to the strongest levels of protection as a 'famous' mark.
(2) the parties were in remote lines of business. A news channel and sports agents are very different, somewhat like Lexis automobiles and Lexis-Nexis.
- Bradbury and Moore are both in the business of making movies, with a new movie based on Bradbury's book in the works.
(3) Professional Athletes are likely to exercize a high degree of care in choosing representation.
- The average movie-goer exercizes a very low degree of care in deciding what movie to watch (as the success of Moore's movie demonstrates, hahah).
So, while I think there is nothing wrong with the case you linked, I think the facts of that case are very different from the situation between Bradbury and Moore. If Bradbury sued before the release of Fahrenheit 9/11 I think he would have had a decent chance of winning and forcing a name change. Of course Moore would have probably just ended up with something like "Bush lies, people dies" or something similar.
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Posted by: Boston website design at October 8, 2004 11:02 AM (Permalink)I think Micheal Moore should be kicked out of the U.S. and shipped off to france or canada. he is a dirty lieing freak and should die!
Posted by: joe mamma at October 11, 2004 11:44 AM (Permalink)I think Micheal Moore should be kicked out of the U.S. and shipped off to france or canada. he is a dirty lieing freak and should die!
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Posted by: insurance quotes at January 21, 2005 09:19 PM (Permalink)I think Micheal Moore should be kicked out of the U.S. and shipped off to france or canada. he is a dirty lieing freak and should die!
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