The Traklight Blog

As a purveyor of IP news, there are certain stories you come across that, because of your age, make absolutely no sense to you as they pertain to the principal parties of the story. Conversely, there are other stories that, because of your age, appeal directly to you and those in your age cohort and likely no one else. The story that follows is of the latter variety. 

The notion of copyrighting dance moves might strike many of us as strange, given both the nature of the activity and our own relationship to it. Copyright involves setting something down in a fixed medium, and for those who enjoy it, dance is something that comes spontaneously from moments of joy, away from cameras and separate from the idea of trying to potentially profit. Then there are those of us who are terrible at dancing, and would spend any amount of money necessary to have recordings of ourselves moving on the dance floor scrubbed from the internet, if not the minds of those who witnessed it. 

It would come as a surprise to no one, save those too young to even consider the past reaching beyond a few scant years, that the Hollywood studio system of the past was none too kind to the writers who helped to make it what it was. You don’t even need to have a memory to get some notion of that; this year’s Best Picture nominee Mank is a vehicle for just that message, positioning its protagonist as a figure robbed by history of his due credit for his part in creating an iconic film. Even now, in an era where credit is a bit more freely given, it’s still hard for writers to reclaim their rights. 

In the category of “new products, new problems” copyright for e-books might not rank terribly high, but the relative lack of attention doesn’t mean that there aren’t underlying issues that need to be resolved, lest they come to a head. As with other creations of its type, it’s a new iteration on a very old product, and that fundamental alteration either renders moot old questions or raises entirely new ones. Copyright law as it applies to books was written at a time when the process and resources involved in creating books places constraints upon the number of books that could be printed and then sold. So what happens with e-books, which can theoretically be sold or lent ad infinitum, with the only limits being hard drive space? 

Wait long enough and you’ll live to see your favorite films come around again in a new, rebooted form, to the lamentations of those old enough to either remember the original or even care about such things. It’s trite to say that Hollywood currently is nothing but sequels, reboots and overextended franchises (and prospective overextended franchises) but the truth is in the headlines: most movies coming out came from something preexisting. And given that level of reliance upon such material, it seems only a matter of time before we see a growing docket of copyright cases against those revived films. 

Cast your mind, if you will, back to 2010; do you recall what you were doing? Who you were, and how different your life was then to how it is now? A decade is a long time in the course of human life, and it’s a long time for a court case to wend its way up to the Supreme Court for a definitive declaration on the matter at hand. 

I’m typically loath to revisit stories too many times, but occasionally you have to see something out to its end, particularly if its end is particularly ignominious. 

Many lawsuits, by their nature, come to resemble a back-and-forth or tit-for-tat or whichever colloquialism you may prefer; few are willing to sit idly by and let a case be brought and then built against them without taking some recourse, particularly given that many suits result from an inability to resolve the matter at hand without the intervention of the courts. Thus lawsuits breed countersuits, business becomes personal and disputes turn into feuds that can potentially run for years. 

While Twitch may have started as a platform for gamers to stream their exploits, it’s evolved into one of the primary venues for live streaming of any sort (along with the ubiquitous YouTube.) Gaming is still a huge component of the audience, to be sure, but a quick look at the homepage reveals that the site even has a Music tab for viewers to browse live performances from any number of artists around the globe. Which makes the platform’s somewhat fraught history with songs and copyright a bit curious, or more likely vexing. 

The story of entertainment across decades is seemingly one of misappropriation or credit unduly denied, if the historiography of the various composite industries are to be believed. Really, they’re stories about power: who holds it, who doesn’t, and how those with the power are able to use it to exploit those without power or recourse. 

If there is anything that has been learned over the past few years of observing the portion of the internet wherein regular folks interact with one another, it’s that moderation and monitoring are hard but necessary chores incumbent upon the platforms that to this point have wanted all of the perks of an enormous user base with with a minimal amount of the responsibility. Hand-in-hand with questions about speech have come concerns about copyright, which as a statutory measure has served as no deterrent at all; if people know about copyright, they often simply don’t care. 

One of the paramount concerns of our time (among the seemingly dozens of them pressing down upon us at any given moment) is how to contend with the power of big tech. It’s something that every industry and sector has grappled with, although the matter has been something more existential for journalism and online publications. Where once the vast majority of the population paid for newspapers and magazines as one of the main sources of news, the shift towards everything being online has left most publications in something of a cash crunch, and left companies like Google as something of a hegemon when it came to how people got their news. 

In writing about legal cases, whether they be in the sphere of intellectual property or falling anywhere else outside of it, it’s quite easy to spend your attention on the initial battle, ignoring the ongoing fight or the eventual resolution. Largely that’s a function of the legal system itself and the astonishing amount of time it can take a particular case to matriculate through the courts; beginning and end in many instances are separated by years, and repercussion and adjudication matter far less than the fact that the initial filing that’s been largely forgotten as well. 

To the extent that the internet is a net positive to the world at large (and after the last few years I am open to arguments to the contrary) one of its great gifts is the weird and funny mashups gifted to us by creative folks all over the world. Like peanut butter and chocolate, they take two great things and demonstrate they work well together, or at the very least are odd enough in their juxtaposition to provide the requisite humor. And many creators, for their part, either appreciate the love and creativity that goes into the mashups, or at least recognizes that the work is likely transformative enough to not be subject to a copyright infringement case.

If you're a fan of the arts, a tradition on parallel with the dropping of the ball in Times Square which was admittedly eerie this year) is the ushering in of the unofficial holiday of Public Domain Day on January 1st.

Given what we've seen of how people can behave online, it's probably good and almost certainly necessary that some protections exist for platforms and internet service providers. That's not to absolve the likes of, say, Facebook from moderating what's posted on their site, or taking steps to prevent the violation of laws on the part of users to a reasonable degree; it's simply to note that even with the best efforts of these companies (which, to be clear, we almost certainly aren't seeing) there's not much to be done should people decide to do whatever they want, rules be damned.

I wrote just last week about efforts to place some measure of copyright reform, along with other dull or unpalatable legislation, inside the new spending bill that is grinding through Congress at a pace that can be considered less-than-glacial, given the effects of global warming. To recap: the CASE Act is a flawed attempt at improving existing copyright law with what would be a copyright small claims court, likely opening it up to more abuse on the part of bad-faith actors rather than less, and the danger presented in this anodyne, pro-forma bit of bundling is that no one will care enough about something like IP law to hold up overdue COVID-19 relief.

Copyright concerns probably don't rate as even a second-order issue when it comes to artificial intelligence, but it is an interesting topic if you're inclined to think of such advances esoterically. What does it mean about us, about our creativity, if a machine is able to replicate it in some manner? Is the idea of creation somewhat diminished, even though the existence of AI requires in and of itself creativity? Will there come a time when human creativity is rendered unnecessary by this AI, and all of our content is generated by machines designed to optimize your enjoyment of it?

We cover video games here from time to time, in part because, well, I enjoy video games, but also because they provide a fascinating window into copyright issues as they approach greater degrees of photorealism. Just as LeBron's tattoos would never have even been a consideration, much less a problem, a decade ago, the depiction of a city and all its component architecture in a game wouldn't have been conceivable not that long ago. And yet here they are, and with copyright issues in tow.

If you're exhausted of politics (and at this point, who isn't) rest easy; this isn't a post on politics, or at least not politics as we've come to think of it in 2020. The issue at hand harkens back to a simpler time, or at least a time more familiar to those of us who chose to watch how the proverbial sausage was made at a time when there was a choice to look away and go about your life.