Tag Archives: law

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Who owns the dead? Guitar Hero, Kurt Cobain and publicity rights in a digital era

Screenshot of Kurt Cobain avatar from Guitar HeroI’m guessing you’ve probably caught wind of Courtney Love’s lawsuit against Activision regarding their reanimation of the image of Kurt Cobain in the latest edition of Guitar Hero. I’ve not seen it myself, but friends have told me it’s a bit tasteless, and this particular lawsuit may be one of the more sane things Love has done in some time (even though there are protestations from Activision that she actually signed off on a contract that gave them permission to do it). [image ganked from Kotaku post under Fair Use terms; contact for immediate takedown if required]

Specifics aside, though, this raises the spectre of an issue that is only set to become more complicated – the use of someone’s image for marketing purposes when they’re no longer around to give their permission. Take it away, TechDirt:

[…] that issue is getting more and more complicated as technology gets better and better. In the last few decades, for example, there’s been a growing trend to use famous dead people, such as John Wayne, Lucille Ball and Fred Astaire in commercials. But those mostly involved taking clips of those actors from existing films/TV and splicing them into a commercial (with permission from their estates). However, as some lawyers have been noting, with better and better digital technologies, this issue is becoming more important as it’s now possible to digitally recreate someone for the purpose of film. Or, say, a video game.

Or, say, a life-size photorealistic face-mask. I’d be the first to concede that making money from the dead is a bit crass – especially from as tragic a figure as Cobain – but is Activision being any more crass than Love and the Cobain holding companies she controls? Who gets to decide what’s appropriate, what’s tasteful?

There’s always going to be a price at which someone’s moral stance becomes less rigid, after all, and the dead can’t hang around to complain… not until we’ve cracked personality uploads or Turing-compliant simulations, anyway. And even then, would the electronic personality be considered legally the same person as the no-longer-living meat-machine?

And just to add an extra fillip of weirdness, consider the results of a recent experiment at Warwick University here in the UK, which shows that doctored video footage can easily persuade eyewitnesses that they saw something which never actually occurred. [via FuturePundit]

The legal implications are a bit nasty – especially in a country as saturated in CCTV cameras as this one – but let’s look at the light side: how much fun would it be to convince your best friend that he was so steaming drunk at his own birthday party that he missed Kurt Cobain wandering through the front room trying to bum cigarettes from people playing Guitar Hero?

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Mexico gov’t decriminalizes personal drug possession

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marijuana plantThe headline says it all, basically – with very little fanfare or ceremony, the government of Mexico has voted to formally decriminalize small-scale possession of controlled drugs and intoxicants.

The law sets out maximum “personal use” amounts for drugs, also including LSD and methamphetamine. People detained with those quantities will no longer face criminal prosecution when the law goes into effect Friday.

Anyone caught with drug amounts under the personal-use limit will be encouraged to seek treatment, and for those caught a third time treatment is mandatory — although the law does not specify penalties for noncompliance.

[…]

Mexico has emphasized the need to differentiate drug addicts and casual users from the violent traffickers whose turf battles have contributed to the deaths of more than 11,000 people during Calderon’s term. In the face of growing domestic drug use, Mexico has increased its focus on prevention and drug treatment.

This is a controversial development for many reasons, especially following in the wake of the suggestion that a harsh economic landscape is linked to the loosening of prohibition laws. It will be interesting to see what effect it has on the crime rate in Mexico, not to mention how it’s larger richer neighbour to the North will react. [via SlashDot; image by Eric Caballero]

One thing is pretty certain, though: the border guards at Tijuana will need to draft in extra recruits for the next Spring Break season.

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Who owns culture? J D Salinger, J K Rowling and the line between derivation and infringement

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The bookworms among you may have caught the news last month about J D Salinger’s successful lawsuit against a writer who planned to publish an unofficial sequel to the cult classic The Catcher In The Rye. It’s a complex situation; while I’ve a certain sympathy with Salinger not wanting people messing with his creations, the ruling actually flies in the face of the US Constitution’s First Amendment, as TechDirt pointed out:

It’s difficult to see any reasonable justification for this ruling. Much of the ruling goes through the four factors of fair use, focusing a lot on why the new work is not a parody […] This misses the larger point: the work is entirely new. It’s not directly copying any actual expression. The real problem here is the idea that only “parody” can be considered fair use in these situations. There’s simply no reasonable logic to support that.

The rest of the discussion on the four factors fair use test is rather troubling. Most specifically, the judge’s analysis of the third prong, concerning “the amount of the copyrighted work” being used seems to go to great lengths to explain how the new book uses a great deal from the old book, but bases this on similarities between the way the character acts, not any actual copying of expression (other than the odd word or phrase, which would certainly seem to be minimal actual copying). Similarity (on purpose) is not copying. Stunningly, the judge even points out that the stories have similar arcs (which isn’t surprising), but to claim that because of a similar story arc there’s infringement is incredibly troubling for pretty much any writer.

Indeed – I raised a similar point in the wake of the latest plagiarism lawsuit against J K Rowling, and now it seems that the Fair Use Project and the American Library Association have filed an amicus brief expressing their concerns about the precedent being set. It’s interesting to compare the two cases, because that makes it clear that the law tends to side with the more successful or high-profile creator: Rowling’s lawyers have successfully (and quite rightfully) batted away claims from other writers that general story or character similarities make the Harry Potter series infringing works, but Salinger has prevented publication of a story that he feels infringes on his prior creations. Salinger’s case has a unique flaw (at least to my eyes) in that he has steadfastly refused to publish anything at all for quite some time. If he has no intent to write his own sequels to Catcher, how is the other writer robbing him by doing so?

Of course, there’s always the issue that cash-in works designed to exploit an established fan-base tend to be crap (and apparently reviews of the putative Catcher sequel suggest that it wasn’t much cop), but is that any reason to use the law to prevent their creation? For example, I’m pretty appalled by the travesty that Brian Herbert and Kevin J Anderson have made of Frank Herbert’s Dune universe, but I’d never suggest that they should be legally prevented from doing so.

I guess the question here is: does the publication ban showcase the law protecting Salinger’s ability to make money from his own work, or the law protecting his feelings about the work of others? Because I’m pretty sure the latter is not what the law is supposed to do, and it sets a bad precedent for any of us who aspire to make an income from our own creative output.

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Who owns your electronics?

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Xbox undergoing a (probably illegal) modification procedureGiven the ubiquity of the story at the moment, you may well have already heard about the Los Angeles man facing a potential ten year jail term for the heinous crime of modifying games consoles. If so, you may be wondering exactly how that law operates – after all, if you own something, shouldn’t it be your right to do what you wish with it? TechDirt highlights the disconnect:

It’s interesting to see the use of the word “jailbreaking” here, as that’s more commonly been applied to iPhones — where it’s common. Usually, this action has been referred to as “modding” or “modchipping” when it came to consoles. But the basic fact is that the actions are effectively the same — and both should be perfectly legal. Modifying legally purchased hardware should never be against the law. It’s possible that you could then use that modified hardware to break the law — and no one’s saying that’s okay. But the act itself of modifying the devices should never be against the law — especially where it could lead to a ten-year prison sentence, as in this case.

Ars Technica consulted a legal expert to get the real skinny on the situation:

The news was bad. “With hardware, you can do pretty much anything you want with it. There are very few rules that apply. You buy it, you own, you can take it apart, and that’s perfectly fine,” she explained. The problem is that no one simply modifies the hardware. “It becomes complicated with modern hardware because it’s combined with firmware, the embedded software.”

The infamous DMCA states that you can’t circumvent any software protection to get at the copyrighted work it protects. If you’re using a software exploit or installing a mod chip, you’re disabling that protection to allow yourself to run homebrew code, and you’re running afoul of the DMCA. “Thou shall not circumvent,” Granick told Ars, counting the two ways to break the law. “And thou shall not provide tools to others.

The intent is meaningless. Even if you simply want to modify an Xbox to use as a media center, you’re breaking the law, since you’ve given the system the ability to run unsigned code.

So, what’s clear is that Crippen’s arrest and charges are completely legal. What’s not so clear is whether or not they should be, and whether the potential penalty is even slightly proportional to the crime in question. Five years in the clink for modifying a single games console seems more than a little excessive, after all; here in the UK, the average house burglar doesn’t serve a stretch that long. [image by videocrab]

One suspects that, much as with the Thomas and Tenenbaum cases, the ESA is trying its best to make an example of Crippen, pour discourager les autres. How effective that could possibly be is anyone’s guess, but I wouldn’t want to bet on console modding disappearing any time too soon. Crippen himself makes the point pretty clear in the closing lines of Threat Level’s report:

Crippen appeared in Los Angeles federal court late Monday and was released on $5,000 bond.

He said it took about 10 minutes to jailbreak a console.

Where did he learn the skill?

“Google, man.”

And there it is; I hope the ESA has a lot of nails, because the lid to Pandora’s Box isn’t going to close as easily as they’d like. The question is whether market forces will eventually turn people toward platforms with open source firmware, or ones which simply don’t come with any restrictions on what you can do with them – like the average desktop PC, for example.

The games console market grew strong in the days when most people couldn’t afford a powerful general purpose computer, but nowadays they’re cheap enough that people use them as little more than DVD players; what will it take for consumers to stop paying through the nose for the privilege of being locked into a piece of hardware where obsolescence and restricted use is an integral part of the package? The answer my gamer friends give me is that you just can’t get enough good games that run on PCs… which sounds to me like a market gap waiting to be exploited.

Will the next decade or so see an increase in locked hardware, or will openness become a strong selling point? Hell knows that when I can actually buy things like augmented reality spex, I’ll be buying the open-source ones that allow me to do whatever I want with them.

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Beleaguered bank sues itself

Wells Fargo BankProof (if such were needed) that the financial sector is utterly batshit insane: Wells Fargo is suing Wells Fargo over a condominium mortgage.

Being a taxpayer-subsidized, too-big-to-fail institution, it’s possible that one of the few ways for Wells Fargo & Co. to know what it is doing is to notify itself with a court filing.

In this particular case, Wells Fargo holds the first and second mortgages on a condominium, according to Sarasota, Fla., attorney Dan McKillop, who represents the condo owner.

As holder of the first, Wells Fargo is suing all other lien holders, including the holder of the second, which is itself.

“The primary reason is to clear title and ownership interest in a property to prepare it for sale,” Waetke said in an email exchange. “So it really is not Wells Fargo vs. Wells Fargo.”

Yet court documents clearly label “Wells Fargo Bank NA” as the plaintiff and “Wells Fargo Bank NA” as a defendant.

If you tried to write that into a story, people would think you were doing satire. The truth really is stranger than fiction. [via SlashDot; image by TheTruthAbout]