Another thought provoking copyright decision

Last week the 9th circuit reversed a Los Angeles federal judge and ordered Google to remove the controversial “Innocence of Muslims” from YouTube. The ruling is controversial for a number of reasons.  This blog does not intend to take a position, but rather to lay out the facts and perhaps relate them to the genealogical world.


  • The actress was paid to create a scene for a specific movie
  • The movie was never made
  • The scene was later included in an anti Muslim film with her voice dubbed over with an insult to Mohammed
  • The actress claimed copyright to her artistic work (It is important to remember that artistic expression retains the same copyright protection as writing a book or painting a picture)
  • The court upheld her copyright and ordered Google to remove the film

Over the years, as I held copyright discussions, the concept of using a copyrighted work in an “unacceptable” way was one of the hardest concepts to explain.  I would mention using a holocaust book in a Nazi display and other equally ridiculous ideas that no one could quite see happening.  Is this in fact that type of use?

Google, in its arguments, stated that taking the video down from YouTube would be pointless as it had already been widely distributed and that Garcia had contributed to her “notoriety” by filing a lawsuit to stop the video.  The 9th circuit called this argument preposterous and actress Cindy Garcia stated she is a “strong believer and supporter of the First Amendment and the right not to be associated with this hateful speech against her will.”

As I thought about this case it made we wonder about some of our “genealogical” practices.  We are wonderful collectors,users, and sharers of stories, sometimes to the point of forgetting the rights of those telling the stories.  Do we record without permission?  Do we share oral and video sessions without permission? Do we make a point of having a signed release for anything we have recorded?  If someone has sent us a family story do we make sure we have permission to share it before we do?

An oral or video recording might in fact be subject to copyright protection for artistic performance as well as protection for the telling of the story itself.  While facts can not be copyrighted the creative telling of factual circumstances can.

Another thought I had as I reviewed this case was the right to privacy of individuals.  That permission to share stories, recordings and videos can be really important in protecting privacy.  We are very quick to share stories and more on instant media: facebook; youtube; google+ and more.  Are we sharing items that others might be not want known?  Does the right to know drown out the right to privacy?

There are many fine lines that we need to pay attention to as we share our genealogies.


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GoldieBlox vs. the Beasties

It is everywhere, the captivating “GoldieBlox, Rube Goldberg, & Beastie Boys “Princess Machine” showing the little girls conquering the engineering world.  Should it be?

My engineering father would be thrilled to see girls encouraged to create. I think he was always a bit disappointed that not only did none of his three sons go into engineering, none of his three daughters did either.  We were all encouraged to build and create at will.  He would be proud that not only his daughters, but granddaughters and great-granddaughters are all as capable as their male counterparts.

But that is not the issue here.  Encouraging girls is great, but the issue is copyright infringement.  And the issue isn’t just copyright infringement, but the filing of a lawsuit to defend use of someone else’s material before they have made any public statements about the use of their copyrighted material.

GoldieBlox’s creator Debbie Sterling stated she filed the lawsuit to deflect threats of copyright infringement before the Beastie Boy’s could go public about the use of their song “Girls” in the video.  She states that the song is a parody and therefore allowed under the “Fair Use” provision of the copyright law.

“GoldieBlox created its parody video specifically to comment on the Beastie Boys song, and to further the company’s goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math.”

Not to sell their toys?

The Beastie Boys on the other hand had privately communicated with the company asking about the use of their song.  They let Ms. Sterling know that they do not now and never have allowed use of their works in commercials.    In an open letter on 25 Nov, the Beastie Boys stated that they…….

 “strongly support empowering young girls” .  They go on to say that GoldieBlox’s “video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.”  They add that….. “When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.”

So the question goes back to is this a parody acceptable under “Fair Use” or a copyright infringement?  Cast your vote here.

While I usually try not to take sides, I find the filing of a lawsuit by the infringing side a push to the side of the copyright holder.   I’d hate for the world to lose this very fun video though, so I thought a fitting end might be that the company would have to remove all information identifying their company, AND post online a “How To” for those looking to reenact the great engineering feats shown in the video, again without any company identifying information.  That would be “empowering girls.”



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Authors Guild Inc., et al. v. Google Inc.

12-3200-cv   UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 ( Argued On: May 8, 2013 Decided: July 1, 2013)

In a decision announced today,  the Second Circuit decertified a class action suit brought by the Authors Guild, Inc. and told Judge Denny Chin to rule first on whether Google’s book scanning is fair use.

This is a victory for Google.  The company has argued that the scanning of books has not hurt authors, but rather made long forgotten books available to a wider audience.  They also claimed that allowing the suit to go forth as a class action forces authors who are happy about the scanning to join forces with those who are not.

This unanimous decision decertified the class action without prejudice.  If Judge Chin decides that the scanning is not a Fair Use, then the class action suit could be reinstated.  Complicating the issue is the fact that Judge Chin is now a member of the Second Circuit. You can read the entire court decision here.  Docket No. 12-3200-cv 

A parallel case brought against the Hathi Trust is also being heard by the Second Circuit.  In that case the Authors Guild is appealing a lower court decision in which Judge Harold Baer ruled that the scanning of over 10 million books was FAIR USE.  He stated “I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants’ [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA [Americans with Disabilities Act],”  Inside Higher Ed   Read more here.

Genealogists have a lot at stake with these decisions.  Many “genealogies” are caught in the limbo of copyright with no likelihood of republication.  A workable solution with Google or the University of Michigan’s Hathi Trust could make digital copies available quickly at a reasonable cost.

To access digitized books see  Hathi Trust   and  GoogleBooks

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