Copyright and the Courts: Four Recent Headlines (and What they Mean)

The world-famous Copyright logo, image from the Wikimedia Commons

You have probably seen recent headlines about Volkswagen lying to consumers and emissions regulators about how fuel-efficient and eco-friendly their diesel engines actually are. The cars were installed with special software in their on-board computers that would detect when the vehicle was being tested, and then feed false data to the device testing the car’s emissions. Worse still, Volkswagen had been doing this since 2009! Why did it take so long for anyone to catch on?

According to Kit Walsh of the Electronic Frontier Foundation, the answer is copyright law.

The software in most newer cars (as well as many other machines) is protected under the Digital Millennium Copyright Act. This means that the programming that tells the computers in the machine what to do is the intellectual property of the manufacturer. Not only that, but if that software is encrypted to hide the software’s code from any peering eyes – and, thanks to the risk of industrial espionage and piracy, the code on these cars is almost always encrypted – the DMCA makes it illegal to break the encryption.

This is good for the manufacturer and bad for spies and pirates. However, the Volkswagen scandal shows where having a single, blanket ban can actually harm the public good. For years, nobody was willing to risk looking at the code inside Volkswagen’s cars, even though many advocacy groups and even U.S. government officials were suspicious of the company’s claims that its diesel engines were some of the most environmentally friendly in the world. If anyone tried to look at the code in Volkswagen’s cars, they would be breaking the law. It wasn’t until a West Virginia laboratory decided to go ahead and risk it that somebody finally had a look at that code and made the discovery.

This is just one example of how copyright law directly affects each and every one of us in our day-to-day lives. It is expected that soon Volkswagen will be forced to issue a recall of all affected models, and if that happens, anyone who drives a diesel Volkswagen would need to find out how they are affected and what their options are.

This is just one of several headlines in the news recently about copyright law. In case you hadn’t figured it out by now, I tend to follow this stuff pretty closely. Here are a few more copyright-related headlines in the past few weeks you might have missed:

The “Happy Birthday” song isn’t copyrighted after all!

Birthday Cake image from Normanack

Remember when I told you about how Warner Music Group owned the copyright to the “Happy Birthday” song?

Well, that is no longer the case. In fact, according to a recent federal court ruling, it was never legally the case.

As you may recall, the tune for “Happy Birthday to You” was taken from “Good Morning to You”, a song written by two sisters in 1893. That tune has been in the public domain for years. However, the lyrics for “Happy Birthday to You” were copyrighted in 1935. Or so everyone thought.

According to the court ruling, the 1935 copyright registration was for a piano arrangement, not the lyrics themselves. Furthermore, the paperwork was filed incorrectly, and on top of that, there is plenty of proof that the song existed long before the copyright registration in 1935, with versions published as early as 1901. Lastly, there is no evidence that the original sisters who wrote “Good Morning to You” ever wrote the “Happy Birthday” variant, and even if they had, there is no evidence that they gave the copyright to the company that ultimately filed that 1935 registration that Warner Music Group depends on to assert ownership of the song.

Thus, the court ruled that “Happy Birthday to You” has been in the public domain for all of these years. Now, the plaintiffs in the lawsuit are demanding Warner Music Group refund all of the millions of dollars in royalties they have been collecting from the song for decades.

So, now that I can do this without fear of being sued…

Happy Birthday to You

Happy Birthday to You

Happy Birthday dear friends,

Happy Birthday to You!

Cars can be copyrighted

Batmobile photo by Jennifer Graylock

Let me tell you a tale of a humble auto mechanic who wanted to make some money off of somebody else’s brand recognition. Mark Towle of Temecula, California modified cars so that they looked like the Batmobile. DC Comics, makers of the Batman comics and owners of all intellectual property associated with the character, sued Towle.

Towle argued that you can’t copyright a vehicle because it is a useful object. He also argued that he was basing his cars off of the Batman TV shows and movies, so DC Comics couldn’t sue him. On Wednesday, the 9th Circuit Court of Appeals ruled that Towle had no idea what he was talking about.

In the court’s ruling, they found that the Batmobile is a “distinct character” that was worthy of copyright protection. The fact that it is a car is irrelevant. Also irrelevant, according to the courts, is the fact that Towle based his vehicles on the movies and TV shows. DC Comics still owns the “underlying” copyrights to anything Batman-related. They didn’t give up those copyrights when authorizing film adaptations of their comics; indeed, the contracts DC signed specifically ensure that DC still owns the copyrights to the characters in the films.

I suppose this is very bad news to anyone who is hoping to design and build an invisible jet.

The curious case of the “monkey selfie”

The famous monkey selfie

When photographer David Slater left a camera out beside a troop of macaques in Indonesia in 2011, one of the female macaques picked the device up and started playing with it. It ended up taking several photographs, including the famous “monkey selfie” above.

Slater assumed that he still held the copyright to the photographs; it was his camera, after all. However, this claim was soon disputed by several websites, including Wikipedia. Eventually, the U.S. Copyright Office ruled that the photograph was not Slater’s creation, it was the macaque’s creation, and “To qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.”

That would have been the end of it, except on Wednesday a new wrinkle was added to this tale. PETA filed a lawsuit claiming that the macaque should be legally recognized as the ‘author’ of the photographs and that the copyrights belong to her. They even filed the lawsuit under the monkey’s name.

For his part, Slater told the Washington Post “PETA are deluded in this stunt,” and New York University law professor Chris Sprigman told Slate “The fact is, copyright’s not there to reward people for their labor—it’s to incentivize people to create new books or poems.” He adds that a macaque has no real incentive to create anything.

Still, the PETA lawsuit brings up some interesting ideas, according to MSNBC’s Christopher Buccafusco: “If a computer programmer writes computer code that creates an artificial intelligence capable of writing music, who owns the copyright in the resulting song: the programmer, the A.I., both, or neither?”

So there you have it, Cat Flaggers, my latest “blogging about copyright” fix. What can I say? My interests are what they are. I hope you all enjoyed, at least.

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