There’s been some talk on this Martin Luther King day about the availability of the video of King’s immortal “I Have a Dream” Speech. The removal of the video from the Vimeo site has stirred enough outrage to launch another march on Washington. Or maybe even another SOPA-type revolt.
Photo by National Park Service
There is so much to talk about regarding the copyright issues in this Speech that this blog could turn into a volume in a hurry (I’ve tried not to let that happen). One of the many vexations, I think, is that we’re talking about two different pieces of material. One is the speech itself, which has been the subject of a controversial lawsuit which we’ll break down in a minute. As a result of that lawsuit, the copyright in the speech belongs to the King Estate and is administered by EMI (which has been recently bought by Sony/ATV, but who can keep up?) The other is the CBS video.*** Both are at issue when the speech is posted on YouTube or Vimeo by a third party who isn’t either EMI/Sony, CBS, or the King Estate.
***I have only read that CBS owns the copyright in the video. I haven’t confirmed this with a search of the Copyright Office records.
But let’s talk about this lawsuit, because there are plenty of copyright folks as well as copyleft folks who’ve raised an eyebrow at the 11th Circuit’s opinion in this case. Unfortunately, we’ve got to look into the 1909 Copyright Act to figure out how this went down, and the 1909 Copyright Act isn’t even good law anymore. But it was good law on August 28, 1963, when King delivered his famous oration at the Southern Christian Leadership Conference’s March on Washington. King delivered his speech before he registered the copyright in it, but registered the copyright a month later. For 20 years, the King Estate “enjoyed copyright protection in the Speech and licensed it for a variety of uses, and renewed the copyright when necessary.” ***
***The 11th Circuit’s language, not mine. You can often tell a lot about how a case is going to turn out by the way the court drafts the factual history.
In 1983, CBS used the speech in a documentary without a license. When the King Estate sued, CBS claimed that the speech was in the public domain.
Under the 1909 Copyright Act, registration was required for copyright to subsist after the work was published to the general public (the term was “General Publication”)*** So the question was, was the speech given to a live audience of 200,000 and a television audience of millions “general publication”? If so, King would have lost the copyright in the work when he delivered the speech because the copyright had not already been registered, and the speech would have gone into the public domain. The District Court in Atlanta was pretty sure that the speech constituted general publication. After all, a lot of people heard it on the Capitol lawn or saw it on television, and the audience couldn’t get much more general. But the 11th Circuit Court of Appeals looked back at other old cases and came to the conclusion that general publication meant more than just dissemination; either tangible copies had to be distributed to the public so that the public had “dominion and control” over the work, or it had to be exhibited or displayed in such away that permitted “unrestricted copying” by the general public. In 1963, a televised broadcast was not subject to “unrestricted copying” and did not produce “tangible copies.” (Query whether the application of that rule to today’s DVR technology would produce the same result….) The upshot was that the 11th Circuit could not rule that King had dedicated the work to the public domain. CBS and the Estate settled the dispute after that before the case went any further.
***Under current U.S. copyright law, registration is still required in order to be able enforce a copyright against an infringer.
So the speech itself belongs to the Estate of King, and isn’t in the public domain. Except that the 11th Circuit didn’t actually say that. All it said was that “we are unable to conclude that CBS has demonstrated beyond any genuine issue of material fact that Dr. King, simply through his oral delivery of the Speech, engaged in a general publication making the Speech “available to members of the public at large without regard to their identity or what they intended to do with the work.” This necessarily implies that genuine issues of material fact did exist as to whether or not King’s delivery of the speech was a general publication. But the parties settled the matter and the issue was never tried. There are certainly reasons to question whether the speech doesn’t belong in the public domain.
Of course, even if the speech were in the public domain, what that would give us is access to the transcript, (which by the way, was first published by Time Magazine in 1983. You can find it all over the internet now, but I have no idea if any of those copies are licensed by the King Estate, which after all, still owns the copyright after the lawsuit we described above). That case didn’t have anything to do with the televised video, which is still controlled by copyright just the way the photographs of that day are (at least, as long as they complied with the statutory requirements of the 1909 Copyright Act). The video is certainly newsworthy and heavy on factual details not owned by CBS, but there is almost always going to be enough creativity in a video to pass for copyright protection. It’s a completely separate asset from the speech itself. And CBS (or whoever the copyright owner is), has the right to take down its copyrighted material under the DMCA.
There is a sense that the “I Have a Dream” speech and the related video are so important, so historical, that they really ought to be in the public domain. But under current copyright law, “important and historical” isn’t one of the categories of fair use (unless you’re doing research or commentary on the work) or works that aren’t subject to copyright. Also, if we added that category, it would be a bit of a roll of the dice to try to decide what was “important” enough to qualify without having to litigate every single time.
A couple more points about Ammori’s blog:
- His title suggests that linking to the “I Have a Dream” speech in a tweet would be copyright infringement. It isn’t a completely settled question, but after the Perfect 10 v. Google case, most IP practitioners believe linking to a third party site can’t constitute infringement. There are probably thousands of tweets today sharing links to the speech, and probably that’s okay.
- His title, of course, also suggests that tweeting the link to the speech is “civil disobedience.” Assuming that copyright infringement has taken place, I take personal issue against calling that a political act against an unjust law, when the end result is getting a video for free when the legal way to get is for $20.00 through the King Center. The black college students who staged sit-ins at lunch counters across the South never got a free lunch.
A quick comment on your last point about “civil disobedience” or lack thereof: I think the comparison between re-tweeting a copyrighted video and participating in sit-ins in a segregated diner are apples and oranges in the details (i.e. lunch is tangible while copyright licensing is not), though both the “fruit” of civil disobedience in their outcome. While true that the students who staged sit-ins never got a free lunch, they were trespassing — in essence violating a license — by being on commercial property beyond the scope of what the landowner allowed. Conversely, protestors re-tweeting the video are not exactly getting a “free video” when their viewing or sharing of the video does not deprive the owner or another customer of an equal copy.* Instead, and similarly, they are violating a license, both depriving the licensor of potential revenue streams by ignoring the scope of the license entirely. Thus, both achieve the purpose of disobedience by raising awareness through causing economic loss to the licensor, although perhaps it’s a bit ironic in retrospect.
Regardless, this may be an indication that the scope of copyright protections is moving beyond what the general public, as well as Mr. Ammori, thinks promotes the progress of science and useful arts. As the six-strikes plan shambles forward, copyright protection efforts are moving beyond the scope of the file-sharing/piracy crowd and into the general public. As was the rallying cry against DRM, many people feel that the entertainment industry (though not implicated here at all) treat consumers like criminals. This isn’t altogether untrue, since p2p users actually wind up purchasing more media than their offline counterparts.**
Most technophiles come out swinging against copyright because they see decisions based on the broad protections afforded to copyright as a “war” of sorts against them. The Grokster decision, while in my view correct, was a huge blow to the development of internet protocols and technologies for data sharing because of the broad language used. In Graham v. John Deere Co., 383 U.S. 1 (1966), Justice Clark expressed the ultimate limitation of Art. I § 8, cl. 8: “Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” Yet in Golan v. Holder the Court found that Congress indeed had the power to remove works from the public domain to satisfy a foreign treaty, which considering the snowballing protection of copyright’s “life-plus” terms as permitted by Eldred v. Ashcroft, could very well be interpreted as a “war” on the public domain. SOPA/PIPA was the figurehead of this belief that cauterized the public’s fear in the power of the copyright lobby (and, by extension, copyright). The “I Have a Dream” video is but the latest skirmish in which the public believes it has a right and interest and is alarmed — rightly or wrongly — to learn otherwise.
My concern is that the sides are so quickly running in opposite directions that a consensus will never be formed between them.
* It’s true that the “file-sharers” are reaping the product as well as the license benefits in a way not applicable to the sit-ins, but digital licensing rarely has a good parallel in the world of property and chattels anyway. Most people linking the video are not doing so for personal consumption, anyway, but for a political statement, which is identical to the reason behind the diner sit-ins.
** http://arstechnica.com/tech-policy/2013/01/new-music-survey-p2p-users-buy-the-most-no-one-wants-disconnection-penalties/
Always enjoy your posts! Thanks for a thought-provoking and informative read!
I think you summarized the Content Wars nicely, Wade. I’d be willing to talk more about whether or not watching the video without paying for it constitutes getting a free video, and I get a little alarmed when people say that accessing an infringing copy of the MLK speech is making a political statement – that sounds to me like the precipice of a very slippery slope. Is it also a political statement to download copyrighted music from BitTorrent, just because you think the copyright laws stink? It seems like a difficult line to draw.
Thank you so much for being a reader, and for your incredibly thoughtful comment!
You already know I think copyright laws favor the creator far too much. 🙂 I love Wade’s comment….my concerns are all about stifling innovation, in general. In the case of the King speech in particular, my concerns are a lot different, however. I think the King estate absolutely should be able to protect the sense of the speech. By that I mean, I’d like them to be able to prevent it being used in commercials [“I have a dream….that my laundry will get really clean with Sparkle detergent!”], for instance. So I’d say they have an interest in preventing [or authorizing] the commercial use of the work.
But that speech [and a few other documents like it] to me truly should be public property. I agree, the fact that apparently CBS owns the copyright to the video of the speech that I like to watch every so often also complicates matters. I would much prefer for CBS and the King estate to agree to add the video to both their websites, for instance, and make it freely, publicly available on YouTube, because they recognize that it is a national treasure.
I agree that it’s a slippery slope and tough line to draw, Tara. Legally I don’t think there is a distinguishable difference between intentionally sharing the King Speech and intentionally sharing Justin Bieber’s latest album on BitTorrent, although I’d dare say it’s easy enough to distinguish artistic taste… Both sources are protected by copyright law and violate each owner’s respective copyright.
I know of several people who share torrents using the justification that they are actively protesting copyright law. I’m extremely dubious whether they actually believe they are protesting an unjust law or are merely excusing unlicensed consumption of media. Pirates often go through mental gymnastics to justify their actions, some more advanced moves than others. I can understand DRM circumvention for personal consumption to keep digital copies of your DVDs, but downloading mp3s to “sample” them before purchasing when there are “free” official channels (YouTube) seems disingenuous to me.
But the DMCA doesn’t distinguish between these violations in the same way that it doesn’t distinguish sharing the MLK video and the same way that trespassing laws didn’t distinguish sit-in protestors from trespassers. Legally speaking, the purpose doesn’t matter, although we do distinguish socially the altruism behind the violation of the law. I think a sniff-test can properly distinguish the altruism of sharers of this video from illegal torrent consumers, similar to how sit-in protestors can be distinguished from hoodlum loiterers.
But, as you astutely pointed out, it does become a lot harder to distinguish the relative levels of altruism and purpose when protest equals consumption. If every sit-in member got a free lunch while trespassing, it would be harder to delineate those with a political purpose from those simply wanting a free meal. I think it still can be done with fringe cases like this one, but the line is certainly blurred. It also makes it easier to villainize the legitimate protestors by lumping them in with the free-lunch crowd, although personally I don’t think pro-reform advocates do enough to distinguish themselves from the “I want free stuff” crowd.
Legally, though, there is no difference in analyzing the two modes, and I think that’s why we tend to default to the maxim: “If you can’t do the time, don’t do the crime.” The danger in applying that razor here, though, is that the punishment for copyright infringement is so far above and beyond the fine for trespassing that the chilling effect prevents an economic cost-effect analysis.* Thus, this somewhat forces the hand of a copyright protestor — there are very few ways for a protestor to engage in civil disobedience without invoking the threat of crushing bankruptcy. I thought the SOPA protest was ingenious in its application because it got the point across without adversely affecting the copyrights of content creators. Amusingly, every single media/pro-copyright proponent I have met has told me that the blackout was “extremely inappropriate” and “completely the wrong way to go about civil dialog.” Perhaps the latter comment is true, for civil dialog, but the presence of the legislation in the first place leads me to think that civil dialog was never on the table.
I’m curious, that between unrealistically out-buying the copyright lobby or engaging in “guerrilla marketing” by violating copyright and risking bankruptcy, what other alternatives are there than the SOPA-blackout? Could the Civil Rights movement have been successful by only engaging in peaceful, rational discourse? Is the Content War sufficiently similar that we can use the same lessons, or is the digital age truly a new frontier?
* I’m only speaking from a legal analysis. Realistically, the sit-in protestors subjected themselves to extreme hatred, insults, slurs, and physical violence, and they STILL stood up for what was right. These souls were much braver than any file-sharer could ever be by clicking a “Like” or “Share” button.
Just a quick footnote to your footnote stating that “***Under current U.S. copyright law, registration is still required in order to be able enforce a copyright against an infringer.”
This is of course true with respect to American copyright owners seeking to enforce their rights, but probably not with respect to foreign rightsowners, as it is clearly a formality prohibited by the Berne Convention and the WTO Treaty (TRIPS), so a WTO member state can only require such a pre-condition to copyright of its own citizens, not of others.
“but probably not ”
definitely not as I read it:
411(a), in part, “…no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made…”
However, the same registration requirement and timing apply to non-US works pursuant to 412 if you want statutory damages and/or fees.