As MTP readers will know, part of Silicon Valley’s legal strategy for over a decade has been to twist the defense of “fair use” into an unrecognizable mass that has the same end result as all of the Valley Boys attacks on copyright–artists get nothing and Googlers can buy a $15 million soundproof love palace in Manhattan.  So naturally when the House Judiciary Committee has announced the Chairman’s intention to hold hearings to review the affirmative defense of “fair use”, it would be to the advantage of tech companies to silence any artists or songwriters who would offer a competing view.

Because as we know–everything’s a remix, right?  And if you review the requirements for copyright protection, originality–however small–is generally thought of as a constitutional requirement outside of Silicon Valley.  So if you wanted to undermine copyright in public opinion and you didn’t think you’d have the votes to amend the copyright clause out of the U.S. Constitution, attacking the concept of originality might be a good place to start.  Hence, the heightened interest in the fair use defense to copyright infringement.  (The amending the Constitution part is not a joke, by the way.)

If everything’s a remix, then there is no originality.  And if there is no originality, then everything is a fair use.  See how that works?

Now also recall that the IP subcommittee of the U.S. House of Representatives is conducting a review of the copyright law at the behest of the head of the U.S. Copyright Office, rightly or wrongly.  One of the topics that will be a centerpiece of those hearings will be the fair use defense (located in 17 U.S.C Section 107).

After the drubbing that Silicon Valley stalwart Pamela Samuelson took before that same committee a few months ago for failing to include a single artist in her “Copyright Principles” project working group–some might say “cabal”–no one in the Valley would be particularly interested in a repeat performance at the planned but currently unscheduled hearing on fair use.

One additional fact–Google spent a lot of time of their UK lobbyist, Rachel Whetstone, convincing UK Prime Minister David Cameron (to whose late son Ivan she was godmother) that Google could not have been successful without fair use.  A quote that Andrew Orlowski might tell you was so important that it had to be invented.

One can also infer that the Valley Boys are on the alert given that the main reason that Professor Samuelson had an extraordinarily ineffective performance had everything to do with a Politico op-ed by David Lowery, the founder of Cracker and Camper van Beethoven.  You know, a songwriter.

Can’t you just imagine Eric Schmidt saying to his legion of lobbyists and lawyers, “will no one rid me of this meddlesome songwriter?”

So it’s important that things go well for the Valley Boys with the fair use hearings before the IP subcommittee.  That last thing they need is more songwriters with valid complaints about how fair use is abused by those who come to the defense with unclean hands.

Enter Goldieblox.

Strategic Litigation

Goldieblox has entered the well-traveled path from Silicon Valley known as PR by lawsuit.  The only company that this has worked out well for was Diamond Multimedia (in 1999) which was not much of a copyright infringement case.  The others–Kazaa, MP3.com, Napster, Grokster, Limewire–not so much.  And yet here we go again.

If you don’t know the Goldieblox story, the company is a toy company founded by a Stanford grad who spoke at TED and whose crowd funded company specializes in toys that empower young women through encouraging them to think of careers in science and engineering.  You know, better IPOs through science.  Because what’s better than creating disruption is invoicing disruption.

Yes, groovier than thou.

The company produced a clever commercial for their toys that showed young women using the toy–Goldieblox–and apparently as an afterthought according to the timeline in the commercial production company’s blog.  The music added appears to be a re-record of the Beastie Boys’ song “Girls”.  The music bed with lyrics “rewritten” apparently came after the creative direction of the commercial was already established according to the production company’s narrative timeline:

“And we would add key details in Post: Beau’s inspired re-writing of an old, misogynistic Beastie Boys tune, “Girls” would add narrative drive [i.e., contributed to an idea that was already present without using the Beastie Boys] as we assembled the piece, and our resident geniuses at Pico Sound would augment the action with chain-reactive sound design…[wait–didn’t the lawyers say it was a targeted parody of Beastie Boys all along?  Shouldn’t the commercial’s story line have added to the parody?] ”  (emphasis mine)

The production company’s narrative made no mention–not one–of an intention to rip off–I mean remix–I mean parody, yes that’s the ticket–the Beastie Boys’ “Girls”–much less Ke$ha’s “Boys” which itself was a gender based twist on the original and which is, in my view, the more direct rip off.

Sorry–remix.

The commercial was placed on YouTube, a major video search monopoly platform for advertisements for everything from steroids to holocaust denier movies.  Goldiblox went viral on YouTube and was followed by a strategically filed lawsuit for declaratory relief by Goldieblox–not by the Beastie Boys–that claims the whole thing is a parody.  (A claim that is arguably at odds with the narrative production diary from the commercial’s producers.)

Shut Up and Sing

Why was the strategic lawsuit filed?  A countersuit you might think?  After all, we know how trigger happy these evil copyright owners are, right?  No, not a counter lawsuit.

Responding to a demand letter, perhaps?  No, not a demand letter from Beastie Boys.

It was filed because the Beastie Boys had the temerity to ask what in the world Goldieblox thought they were doing with the Beastie’s song in a commercial?  The Goldiblox court filing has this carefully worded description of the Beasties words:

In response to this criticism, the Beastie Boys have now threatened GoldieBlox with copyright infringement [note: not a lawsuit, just threatened them “with infringement” whatever that means, and apparently “threatened” over the phone]. Lawyers for the Beastie Boys claim that the GoldieBlox Girls Parody Video [got to love those defined terms] is a copyright infringement, is not a fair use, and that GoldieBlox’s unauthorized use of the Beastie Boys intellectual property is a “big problem” that has a “very significant impact.” [Both phrases could be used to describe elements of a fair use defense that would be absolutely normal to arise in a discussion among lawyers about such a claim.]

That’s right.  Goldieblox filed their lawsuit because of something the Beastie Boys said about fair use, a pressing public policy issue of the day, an issue in which Goldieblox had forced them to become involved.  So far, there has been no evidence of a demand, claim or lawsuit by the Beastie Boys–as in no evidence of a justiciable controversy for which a court could fashion a declaratory judgement.

The Beasties (as well as their producer Rick Rubin) fell into the Goldieblox litigation strategy not because of what they did but because of what they said.  Because of their speech.

And this is the message that Goldieblox is also sending to anyone who wants to hear it including their customers, most concisely stated by Mary Elizabeth Williams writing in Salon:

The Beastie Boys spent a better part of their formidable career making it very clear to even the most casual observer that they were not, in fact, a pack of infantile misogynists. But even if they had been, that wouldn’t give anybody – even a company with a positive, girl-powery message – the right to steal from them. “Girls” is the Beastie Boys’ song, and they shouldn’t be expected to hand it over to anybody in some bizarre legal stab at public shaming. That’s not the inventive, original thinking that GoldieBlox appears to espouse. Instead of hiding behind the thoroughly lame excuse that “The song was sexist, ergo we can take it to sell our toys,” GoldieBlox could instead put on its big girls pants and make something awesome now with its creative talent. The company could instead prove that when challenged, it’s crafty. And that’s just my type.

And for God’s sake, shut up those meddlesome songwriters and teach them all a lesson about what happens if you challenge the tech elites.