
Michael Jackson Estate Turns the 'Fair Use' Tables on Disney - okket
https://torrentfreak.com/michael-jackson-estate-turns-the-fair-use-table-on-disney-180531/
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AdmiralAsshat
Disney only cares about the law when it profits them. Remember that they rose
to fame by using stories that were in the public domain and exempt from
copyright, then lobbied to extend their own copyright indefinitely.

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kbutler
Nothing you've said implies Disney violated any laws, however much I disagree
with their actions.

Small companies innovate.

Large companies litigate.

Mega companies legislate.

~~~
dvdhnt
> Nothing you've said implies Disney violated any laws, however much I
> disagree with their actions.

This is a problem with the US' letter of the law legal system. We make excuses
and justify actions because they aren't explicitly listed as illegal, even
though we all know they're in bad faith.

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kbutler
If you mean that judges or law enforcement should be able to punish actions
that are not against the law, then I disagree wholeheartedly.

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handbanana
“[I]f Disney’s position on fair use of the Estate’s copyrights were accepted
one could create a two-hour documentary about the Star Wars franchise, by
summarizing each film and using extensive clips from each film while playing
the iconic Star Wars music in the background of interviews and narration, and
all without permission from Disney."

Great quote

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vkou
Isn't that what the (in)famous RedLetterMedia reviews of the Star Wars
prequels did?

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jerf
Yes.

But... are they legal? I wouldn't consider that a sure thing. As much as I've
enjoyed some of them, I've often thought the "extensive video review" industry
is very likely on the wrong side of copyright. It is true they check off a lot
of the fair use criteria, certainly. But one of the core determinations is
"can you consume this work in lieu of the original?" and some of those things
come perilously close to that line, if they don't outright cross it.
Obviously, it is not the _same_ experience, but you certainly come away from
such a review knowing all the characters, all the major plot points and often
a significant portion of the minor ones, probably the best special effects
scenes, a decent slice of the music, and the ability to fairly thoroughly BS
your way through a conversation about the movie with people who went to it the
normal way without them necessarily realizing you never actually saw it.

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bonesss
> _" can you consume this work in lieu of the original?"_

Grab some 8yo, throw them in front of the RLM reviews, and tell them it's Star
Wars... are they gonna watch it and be equally satisfied?

Extensive reviews are just like in-extensive reviews... Knowing all the
characters is a staple of movie reviews in all forms, as are plot synopses.
Story import of character and scene does not factor in to whether it is
review-able in any medium. These issues are are applicable to most written
movie reviews, book reviews, and song reviews too. They are exempt from
Copyright for the same reasons. Why would we want a culture where superficial
critique is acceptable, but in-depth critique is rejected?

You hit the nail on the head: "it is not the same experience". If it starts
providing some of the same experience, via excessive clips or music, then they
infringe. Too much of a song, clips with no purpose, etc. RLM is among the
better cases for meaningful reviews.

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jerf
"Grab some 8yo, throw them in front of the RLM reviews, and tell them it's
Star Wars... are they gonna watch it and be equally satisfied?"

That is not the question the law asks. The question the law asks is the one I
gave. It is naked and unashamedly commercial in nature. A more way of phrasing
it might be, grab an 8yo who has not seen the movie in question, show them the
review, maybe take a moment to wonder if that's necessarily a good idea for
this specific review, and then ask them if they are still interested in seeing
the movie. Or perhaps better, if we're talking 8, sit them in front of the
movie and see if perhaps they wander away halfway through because they already
know the ending.

At the margin, the answer is likely to be that the review substantially
reduces the need to consume the original content. That is, for a single case
it's trivial to imagine anything you want happening. But if you imagine
repeating that experiment thousands of times, is the desire to view going to
go down? It's easy to hypothesize your kid saying "yes I still want to see it
all the way through in fact I want it more than ever" but that's just an
assertion moreso than an argument. It's a _possible_ outcome, but I find it
much easier to believe that at the margin, desire is reduced. In that case it
would be very likely to fall afoul of current fair use law; even given that
again I fully stipulate their superficial conformance to a number of the
4-part test for fair use in US judicial decisions they could still lose.

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baldfat
I hope Disney wins. The 1998 Copyright Extension is over this year and WELL
POSSIBLY we could get things back into public domain again!!!

Can we please figure out how we can have renewable copyright law which cost
over $1,000 a year per copyright item. That way Disney can keep Mickey Mouse
and 99% of the rest gets released as public domain. If not they are looking to
increase the Copyright to 125 years after death.

I pray the reign of terror of Mickey Mouse might be over soon.
[https://boingboing.net/2018/01/08/sonny-bono-is-
dead.html](https://boingboing.net/2018/01/08/sonny-bono-is-dead.html)

~~~
PerryCox
>Can we please figure out how we can have renewable copyright law which cost
over $1,000 a year per copyright item.

No fuck Disney and their reshaping of America's copyright law. For one stupid
animated mouse they changed how the entire Public Domain worked. It's not
really possible to boycott Disney at this point, but if I could I would
because of this issue alone.

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mrguyorama
>It's not really possible to boycott Disney at this point

How not? I consume nearly no Disney media. My biggest consumption right now
would likely be hulu, and that's a shared account that I don't pay for

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smhenderson
How about ABC or ESPN? If not them I'm sure there are a dozen other examples
of things Disney owns that may or may not be common knowledge.

I'm not saying it's impossible but it is sure hard at this point. Personally
I'd really feel like I was missing out by boycotting Star Wars or Marvel. I
know not everyone likes the direction Disney is taking these franchises but I
continue to enjoy them, especially when sharing with my kids. I'd miss out if
I tried to boycott Disney.

Doesn't mean I like them as a company though!

~~~
mrguyorama
Never cared much for the original Star Wars, and certainly don't care for the
new ones. Don't care for the vast majority of movies, or even traditional
media. I don't consume sports, so the only ESPN I view is Five-Thirty-Eight on
election cycles. Meanwhile I haven't watched TV, or ABC in 8 years. Apparently
I'm (accidentally) boycotting a lot of media.

I actually didn't realize it was so hard to avoid most of those things.
They're full of the same old same old, and produce nearly no satisfaction for
me. It's like eating fast food, very tasty, but of no quality. Though I say
that, and yet regularly consume fast food. Goes to show my opinion of most
"mainstream" media I guess

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maxlybbert
I’ve read the complaint, and I doubt Disney’s legal department is concerned by
this lawsuit. I’m going to predict that Disney has a blanket license for most
of the music recordings through ASCAP or whatever other organization would
normally handle those licenses.

The bulk of the complaint lists terrible things Disney’s legal department has
done, but it’s not clear how those actions are legally relevant. “Hypocrisy”
is not one of the factors in whether something is fair use.

The statement that other documentaries get licenses from the estate doesn’t
say whether those documentaries are actually legally required to get those
licenses. And it certainly doesn’t say whether Disney needs a license for its
project.

I’m going to predict that the music recording claims will be dropped when
Disney shows it has a blanket license, and the other claims do look like fair
use to me. But maybe Disney will settle before trial.

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CPLX
There's no such thing as a "blanket license" that term is nonsensical. Rights
to footage, or sync rights to audio, are always case by case.

Presumably you've gotten yourself confused with what are called mechanical
licenses, which only cover songs, and only the music and lyrics (not original
recordings) and have basically nothing to do with this at all.

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maxlybbert
You’re right: [https://www.ascap.com/help/career-development/a-checklist-
fo...](https://www.ascap.com/help/career-development/a-checklist-for-using-
music-in-film) suggests that the kind of license I would expect a producer to
need wouldn’t come from ASCAP.

So all four claims are relevant, but Disney’s alleged hypocrisy doesn’t seem
to me to serve any purpose in the complaint (other than to get the thing
noticed by the media).

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yjftsjthsd-h
I suppose one reason for hypocrisy to matter is that it proves they knew what
they were doing. If I do $FOO, I could think that $FOO was okay. If I do $FOO
while actively suing other people for doing $FOO, then it's obvious that I'm
knowingly doing something wrong (or perjuring myself, I suppose).

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vageli
Yeah in law this is called estoppel and it could be very relevant to this
case.

[https://en.m.wikipedia.org/wiki/Estoppel](https://en.m.wikipedia.org/wiki/Estoppel)

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gremlinsinc
Did they mention Napster enough times in the article? Each time the article
lost more credibility with me and felt more like buzz feed.

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pnevares
The line about Napster references, and later directly quotes, a section from
the complaint PDF (page 6, section 16).

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ghostbrainalpha
Also you are reading a blog on the "Torrent Freak" website... so they may be
zooming in on the part of this story that resonates with this author and
typical readership.

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anoncoward111
Wow, it's not every day that I agree with Disney, but here I am.

As an avid Pirate, I don't care if Disney made digital copies of Michael
Jackson's music for use in a commercially successful documentary about Michael
Jackson's life.

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starmftronajoll
But perhaps as an avid pirate, you might care about the naked hypocrisy
exhibited by Disney re: copyright, which is the crux of the Jackson estate's
clever argument here (clever to the layperson, at least -- who knows if it
will hold much weight if the case goes to trial).

~~~
norealidea
it comes to a point where Piracy isn't just about caring, but from old habits.
What are they going to do if I don't pay their piracy fines? Find me and put
me in jail for something they cannot prove even happened?

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wahern
> something they cannot prove even happened

You just implicated yourself, and in a public forum no less. Alone this
wouldn't be enough for legal action, but it could prove very useful,
especially for showing intent for criminal prosecution. In any event, you
never know how information can be used, and used against you.

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tracker1
One thing I miss from slashdot was the "from the ... department" or similar.
In this case:

    
    
        From the 'You reap what you sow department.'

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daemin
So if Disney win then they lose all their other piracy cases, but if they lose
then they win their other cases?

I'm not sure which one they would prefer to have, though this will most
certainly be settled out of court with some significant (for us) money
changing hands.

