Why Netflix Instant’s selection sucks

I wrote a piece for Techdirt about how a shift from the “permisionless”—but paid—DVD rental business to the permissions intensive movie streaming has prevented Netflix Instant from having anything like the selection of old-fashioned Netflix.

It should be astonishing that a company that once had to maintain and transport a staggering inventory of fragile plastic discs is able to offer less when its marginal cost dropped to near zero.

The problem is that, unlike earlier movie-rental options, streaming rights fall fundamentally within a permission culture. Netflix is a great illustration of what’s gone wrong here. It’s gone from having a nearly unrivaled catalog of films available to rent to being the butt of Onion jokes. What happened: It shifted from a system where nobody had a veto power over its operations, to one where it had to get permission and make deals with Hollywood. Sometimes it’s difficult to find the concrete costs of living in a permission culture, but the decline of Netflix’s selection is an important cautionary tale.

I’d been meaning to write this for a long time! I like the way it came together, and I’m glad I got a chance to lay this line of reasoning out.

Silicon Valley ad tribute to Steve Jobs: fair use?

I saw this ad for the new HBO show Silicon Valley in a BART station on the way home from the Next Great Copyright Act conference:


In case you’re not familiar with the original, this is a straightforward parody of Albert M. Watson’s famous portrait of Steve Jobs, which appeared on the cover of Jobs’s biography and the memorial Apple homepage after his death.

Maybe I had copyright on the brain more than usual, but the ad immediately brought to mind the case Leibovitz v. Paramount. That case was over whether an advertisement for a Naked Gun movie (below, right)—a parody of an Annie Leibovitz portrait of Demi Moore on the cover of Vanity Fair (below, left)—was a fair use.1

Images at issue in Leibovitz v. Paramount

The Second Circuit ruled that yes, the use was fair. The case has become quite influential; along with Campbell v. Acuff-Rose in 1994, it’s one of the clearest citations for the fact that commercial use does not preclude a finding of fair use.

So back to Silicon Valley. The parallels between the two cases should be clear: an advertisement as a parody of an iconic photograph, recreated by a new photographer, but with a more-than-substantial similarity to the original. In fact, not much distinguishes the two cases. I’d expect a copyright claim from Watson to fail, especially if brought in the Second Circuit.

Interestingly, Watson has litigated over the photograph. Almost exactly a year ago, he brought a suit against artist Alex Guofeng Cao and a partner David Datuna for creating “high art” derivative works of the photograph. One, “Steve Jobs vs Neil Armstrong, After Watson,” was part of a gallery show; the other, “Steve Jobs-Ayn Rand,” sold to a collector for over $200,000.

A work’s status as fine art seems sometimes (but not always!) to weigh in favor of a finding of fair use. The Second Circuit ruled mostly in favor of appropriation artist Richard Prince in a major fair use case last year, for example—a ruling that came down just days before Watson filed suit. We won’t know how that factor would have affected the decision in this case, though, because the parties apparently settled last month—March 6.

It’s possible, too, that Silicon Valley has a license with Watson. It’s a hard thing to find out because there doesn’t have to be any public record of the license. That’s one reason why policing copyright on user-generated platforms is much more complex than some copyright maximalists like to make out: it can be impossible to distinguish a lawfully licensed work from an infringing one, and even more complex if fair use is a factor.

Even if the use of the photograph is a definite fair use or licensed, there’s another interesting possible legal obstacle. (I’m not a lawyer, and we’re out on the fringes here, so take this with a grain of salt.) It seems possible that the estate of Steve Jobs could claim the ad infringes his right of publicity. Such a claim in the Ninth Circuit could lean on White v. Samsung, where a majority held that a robot shown in a Samsung ad was too similar to Vanna White. Judge Kozinski’s dissent in this case is an all-time great.

But doesn’t the group of Silicon Valley guys wearing the famous Jobs turtleneck and in his thoughtful pose evoke Jobs’s image just as much as the Samsung robot evokes White’s? In any case, I agree much more with Kozinski’s dissent than the holding in the case. I hope we don’t see such a challenge.

  1. Side note: I don’t remember this magazine cover or movie ad firsthand, but what staying power must the photo have had to be the recognizable target of a parody two years later! Is there any magazine cover in the past decade that is so iconic? []

April Fools’ Day EFFector, 2014

For the third year in a row (see 2012, 2013) I’ve put together the April Fools’ Day edition of EFF’s EFFector newsletter. I feel like the tide has really turned against online April Fools’ jokes, but to my mind this is something different. There’s no trying to trick people, no ha-ha-this-is-the-opposite-of-what-we-normally-do, no lame fake acquisition, just jokes. What’s wrong with jokes?

Newsletter launch: 5 Useful Articles

I’ve launched a new weekly newsletter on copyright, trademark, and patent policy with my friend Sarah Jeong. It’s called 5 Useful Articles, which is a pun.

We announced the newsletter Monday and sent out the first issue on Thursday to some 150 people. We’ve had new subscribers since then without much more promotion, so maybe people are forwarding it around!

The Ulysses piracy case and “Innocence of Muslims”

I’ve just finished reading Robert Spoo’s book “Without Copyrights,” an academic look at the history of American publishing in the 19th and early 20th centuries, when American copyright first did not apply at all to works first published abroad, and later applied only with strict manufacturing and notice requirements. The first half of the book documents the interesting practice of copyright-like trade courtesy among publishers, through which those businesses kept the costs of books relatively stable, paid authors through voluntary payments, and internally punished defectors from the system.

But the second half was even more interesting. It covers the suit James Joyce filed against Samuel Roth for his unauthorized publication of Ulysses in the US, and the suit Joyce and Random House fought to publish and unexpurgated copy of the book, which was then considered obscene. That first case, Joyce v. Roth, was especially salient in light of the recent copyright case Garcia v. Google, the “Innocence of Muslims” case.

Ulysses was one of the books affected by early 20th century copyright law’s manufacturing requirements. Its controversial contents prevented an American publication simultaneous with its European debut, throwing the work quickly into the US public domain.1 As a result, Joyce had no American copyright claim to go after Roth with.

Instead of copyright then, Joyce v. Roth alleged violations of a New York state privacy law, with Joyce claiming that Roth had misappropriated his name and image in order to sell magazines. Essentially, Joyce couldn’t object to Roth reprinting the text of Ulysses (expurgated or otherwise), but could try to refuse him the right to put Joyce’s name on the cover.

Roth was fighting a lot of legal battles at the time, and ultimately settled before the case was decided on its merits. It seems somewhat doubtful Joyce could’ve won, not least because the statute he sued under had a specific exemption for putting authors’ names on books. So: Joyce used a flimsy privacy claim to prevent the dissemination by a bad actor2 of an objectionable work.

Compare that to Garcia v. Google, wherein Cindy Lee Garcia is using an (extremely) flimsy copyright claim towards the same ends. She’s trying to prevent the dissemination by a bad actor, here Nakoula Basseley Nakoula, of an objectionable work, “Innocence of Muslims.” Joyce’s was being tricky with privacy law in order to enforce a copyright concern; Garcia is doing the same with copyright law to enforce a privacy concern.

In both cases, it’s likely that many observers identify and sympathize with the plaintiff—but that doesn’t grant license to contort the law to serve a good ends. Had Joyce won outright, the precedent could have had all sorts of unintended consequences: it could have jeopardized other publishers of the public domain, created incentives for improper attribution, and had chilling effects on literary criticism. The same applies for Garcia, should the Ninth Circuit’s position remain in place.

“Without Copyrights,” like 2009′s “Piracy” by Adrian Johns, is a pretty incredible reminder of how closely current debates around tech policy—copyright, free speech, privacy, and more—mirror those from a century or more ago.

  1. It’s a bit more complicated than that, especially owing to a serialized American version, but I think the broad strokes suffice here. []
  2. Well, some people really didn’t like Roth. Neither Spoo nor Ezra Pound nor this author are willing to go very far in demonizing him. []