Not Everyone Has A Sense of Humor At Nixon Peabody:
Despite having the phrase "Everyone's a winner at Nixon Peabody!" stuck in my head all day today — seriously, it's like a CD track on permanent repeat — I'm still kinda disappointed to learn that the firm pulled the song from YouTube. I thought they work to keep it fun, they work to keep it cool — you know, that's how the whole team spirit thrives. Oh well.
UPDATE: Jonathan Last comments, "it's like a bad '70s used car jingle done by Earth Wind & Fire." I disagree: this is pure Pointer Sisters.
UPDATE: Jonathan Last comments, "it's like a bad '70s used car jingle done by Earth Wind & Fire." I disagree: this is pure Pointer Sisters.
I think I'll write Nixon Peabody and ask for a copy.
It wasn't actually as bad as the promotional videos that Kirkland shot about their associates' "balanced" lives. When I first saw those, I thought they were from a mockumentary (and a good one at that). I wonder if I can dig those up somewhere....
I can never see that name without wondering why they left out the word "water."
Are the pinheads at Nixon Peabody up for a game of weekend copyright whack-a-mole?
Article 1 grants authors protection for their work by giving Congress the authority to protect those rights, which they did in 17 USC sections 101-07. The authors (or their assignees) are entitled to copyright as a matter of law and of fairness to their work. The youtube video violates the copyright of the work's authors. When an unauthorized user replays that video, he is violating the copyright. This is all basic copyright law. (I don't quite see that we need "law" - it's their work, they made it: if you want to use it, you should get their permission. But even if you don't buy the ethical argument, it is obviously illegal just to make copies and redistribute them).
Here, it is obvious from the tone and content of Kerr's post that he intends readers to listen to the video and thus to violate the copyright. Thus, he is inducing a violation of the rights of the copyright owner. The commentors don't even bother to surround the link with snarky commentary - they just link directly to the song. The blog to which Kerr initially linked also just embedded the entire youtube video.
Including an entire performance inside a commentary is not "fair use" because the entire work is appropriated. Excerpts from a performance may be quoted for review purposes, not the entire thing.
Now, apart from the legalities of the matter, I think at some point this blog's maintainers need to take a look at what the blog stands for. Is it designed to be demotic and amusing, kind of a legal digg or dailykos, or does it stand for principles that are deeper? If this were one of those blogs, I wouldn't even bother articulating a legal argument: it's popular to pirate videos, and those blogs do whatever is popular. But this blog should have higher standards.
Indeed, this blog articulates and respects a certain set of governing principles, mostly derived from Volokh's own philosophy and writing: respect for logical analysis rather than passion or political expediency; respect for individual rights, especially for unpopular individuals; respect for the text and spirit of the Constitution; respect for text and structure of law. It is this set of beliefs and philosophies that distinguish it from other blogs like digg and dailykos, which usually try to take whatever position is most expedient or popular at the time.
For example, Volokh's positions on the 1st, 2d, and 5th amendments, although not popular, evince a respect for constitutional structure and the rule of law - even where the speech, the firearms, or the property-owners are unpopular.
Kerr's series of posts on the song are incompatible with the philosophy I articulated above. Kerr's position is that Nixon Peabody's rights in that video should not be respected. By allowing comments that point directly to illegal copies of the video, Volokh himself seems to agree here. The commenters uniformly take the standard position of copyright infringers: that the work deserves no copyright protection because it's not good enough, and, even if it is good enough, there is nothing Nixon Peabody can do in practice to enforce its copyright.
The fact that Kerr thinks the video is stupid is entirely irrelevant to the level of copyright protection it enjoys. The whole point of the Constitution, or at least one of the main points, is that its protections and the protections of the laws enacted under its authority protect both unpopular and popular causes, people and property. Similarly, the fact that the blog and readers can "get away" with it, is not germane to whether the blog's actions comport with its philosophy.
It would be hypocritical, it seems to me, for the blog to react with its customary indignation to other violations of rights - as for example to Kelo-like Takings Clause violations, or asset forfeiture, or firearm confiscation, or to speech codes - and yet to argue that readers should violate authors' rights to their own work.
That it's more fun for everyone to copy should not change their rights. When Kerr blithely violates the authors' rights to their own work (both by inducing people to make illegal copies of the video and by mocking the authors for trying to enforce their rights in their work) he weakens the legal principles of the blog.
Pointer Sisters? I disagree; this is Hot Chocolate!
Lawyers are twits,
And you're to blame
You give law a bad name