Ninth Circuit Says VidAngel’s Wings Made of Wax

(Angel image by in8finity)

“Drat! Phooey! Shucks!” must be what the folks at VidAngel are saying after this morning’s opinion was handed down by the Ninth Circuit Court of Appeals in Disney Enterprises v. VidAngel. Affirming the decision of a California district court, the panel agreed that the movie studio plaintiffs would very likely prevail on the merits in all of the triable issues in the case. Thus, the preliminary injunction ordered by the lower court will stand, and VidAngel will not be allowed to operate as it had been while the company considers whether or not they will take its case to trial. I’m going to bet they won’t.

See detailed description of VidAngel in post from February.

VidAngel had been running what amounts to an unlicensed, video on demand (VOD) service, streaming mainstream movies with a filtering option for customers who prefer not to experience swearing, nudity, blasphemy, and/or other “objectionable” material in their movies. Several major studios sued VidAngel for copyright infringement; and VidAngel sought to defend its model, with all the verve of Icarus, by means of some rather strenuous interpretations of the Family Home Movie Act (FMA), Section 1201 of the DMCA, and the fair use doctrine. The Ninth Circuit opinion is unambiguous in its disagreement with all of the defendant’s statutory interpretations. For instance, here’s a pull-quote regarding VidAngel’s defensed under the FMA:

“VidAngel’s interpretation would create a giant loophole in copyright law, sanctioning infringement so long as it filters some content and a copy of the work was lawfully purchased at some point. But, virtually all piracy of movies originates in some way from a legitimate copy. If the mere purchase of an authorized copy alone precluded infringement liability under the FMA, the statute would severely erode the commercial value of the public performance right in the digital context, permitting, for example, unlicensed streams which filter out only a movie’s credits.”

Like many tech businesses that depend on copyright infringement, VidAngel spent considerable effort trying to litigate its cause in the court of public opinion with a “Save Filtering” campaign. This is common practice: to sell the message that a particular business model is merely an extension of consumer rights. And although many of VidAngel’s fans are likely to view this decision as “anti-filtering,” those consumers should know that VidAngel violated at least three statutes, even without the filtering; and its attempt to argue their right to filter on behalf of consumers shoots far beyond the mark of either the intent or the language of the FMA.

It’s hard to imagine any VidAngel investors* are going to want to pursue what looks like an un-winnable case, but maybe they’ll be spared a worse fate. Because if they tried to put, say, Deadpool through their system, the place would probably explode.


*See comments.

American Identity is in the Music

My generation was raised on Schoolhouse Rock!. As such, we were not only told that America is a Melting Pot but were reminded of this on a regular basis in a song from that animated series, the melody of which is now ringing in the heads of any fellow Gen-Xers reading this post. Of course, the more mature truth is that America is not really a melting pot so much as it is a seething cauldron of incompatible ingredients that only manage to blend into something palatable after considerable simmer time. When The Great American Melting Pot episode first aired in May of 1976, it was just three months after violent race riots had broken out at a Florida high school over symbols celebrating the South in the Civil War.

In response to last weekend’s tragic events in Charlottesville, friends posted a number of comments and memes on Facebook contrasting the offense taken to NFL player Colin Kaepernick’s kneeling during the national anthem against the apparent dearth of outrage directed at Americans carrying Nazi flags in the streets. Granted, it’s hard to know the degree to which this particular hypocrisy really exists—I’d like to believe that most Americans across the political spectrum still denounce the waving of Nazi and Confederate flags in a violence-inciting, race-bating rally—but these allusions to the “Star Spangled Banner” resonate in context to the brewing clashes over nationalism and cultural identity. Kaepernick, who has now been joined by Michael Bennett of the Seattle Seahawks, has chosen an apt symbol of protest because the anthem is about as good an example as any of the distinction between American myth and American reality.

In 1991, playwright Tony Kushner sharply articulated America’s unique brand of hypocrisy in his AIDS-inspired play Angels in America when the gay, black character Belize says, “The white cracker who wrote the national anthem knew what he was doing. He set the word ‘free’ to a note so high nobody can reach it. That was deliberate.”

It’s a brilliant line.

Of course, the “white cracker” Francis Scott Key wrote the word free 34 years after the English composer John Stafford Smith wrote the high G to which Kushner refers. In 1780, the note corresponded with the lyric Venus in the song “To Anacreon in Heaven,” which was the official club song of the Anacreontic Society of London, a fraternity of mostly amateur musicians who would gather to enjoy concerts, drink, gossip, and drink more. As every American school kid is told, Key was moved to write the poem “Defence of Fort McHenry” upon seeing the flag still flying at dawn after heavy, overnight bombardment of the fort. Sung to the tune of “Anacreon in Heaven,” Key’s words would become the “Star Spangled Banner” but would not be adopted as the national anthem until 1931.

That the words of our anthem are American and the tune English—and the fact that they were paired during a war that is sometimes called the second revolution—reflects the fledgling creative voice of a new nation still writing its identity and still finding its place in the world. As the copyright critics love to say, “America is a pirate nation,” by which they usually refer to the fact that the book printers, shortly after independence, made a habit of pirating English books rather than pay to publish domestic authors. This is true. And had America remained a pirate nation rather than invest in its own creative capacity, the character of our society—and most likely our democracy itself—would be the worse for it. Because the voice that emerged, and which took nearly all of the nation’s first century to come into its own, is unambiguously multicultural, no matter what the bigots think. There is no such thing as “white male Christian” America, and there never was. Just listen to the music.

In fact, before “The Star Spangled Banner” became the official anthem by an act of Congress in 1931, the unofficial national song for many citizens and leaders was “America the Beautiful,” the lyrics of which are a poem written in 1893 by Katherine Lee Bates, a 19th century feminist who might have been gay. Conservative factions have occasionally lobbied for “God Bless America” as the national anthem because it places God in the center of the action, but this would provide little comfort to the kind of “conservative” on display in Charlottesville, since that song was written by a Russian immigrant jew named Israel (Irving) Berlin. (On a side note, Berlin also wrote “White Christmas,” and believe me, American Christmas celebrants would have precious little music to enjoy without Jewish songwriters.) Ironically enough, even though proposals from liberal groups to make the national song “This Land is Your Land” would be a non-starter, Woody Guthrie’s music is arguably the most American sound in the bunch. Though it is admittedly a bit jaunty for any kind of solemn occasion.

As students of the Enlightenment, the Founding Fathers understood that we would never get a seat at the grown-ups’ table of nations without fostering cultural and scientific enterprise, which was a pretty ambitious dream for a war-weary population of some three million farmers spread across an area of about 340,000 square miles. But what the hell? They had just won a revolution that should not have worked by any sane analysis and then sat down to write a user’s manual (a.k.a. the Constitution) for operating a society unlike any that had ever existed. Why not hope for great invention and art while they were at it? John Adams, in a letter to his wife Abigail dated May 12, 1780, expressed his hope for the country to attain intellectual and artistic stature thus:

“I must study politics and war, that our sons may have liberty to study mathematics and philosophy. Our sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain.”

Adams’s implication that America’s progress toward maturity would be reflected in its capacity for increasingly refined creative and cultural enterprise was prophetic, except for his references to European classicism. He could not have imagined the extent to which our major contributions would be unequivocally modern, technological, and culturally diverse—that the American voice would be defined not by statuary, tapestry, and porcelain so much as by movies, theater, TV, and sound recordings that would blow the church doors off their hinges, making new messiahs out of rock stars and rock stars out of inventors.

In this sense, I think “The Star Spangled Banner” became truly American when Jimi Hendrix played his electric guitar solo version at Woodstock in 1969. Simultaneously patriotic and revolutionary, Hendrix’s tortured virtuoso (significantly instrumental and electric) synthesized the aristocratic and tight-assed “To Anacreon in Heaven” with the sins of racism, the self-betrayal of the Vietnam War, and the psychedelic explosion of counter-culture into a performance that told a much deeper, more painful, and more complex truth in the American-born language of rock-and-roll. This sound, which would not exist without the American slave diaspora, traveled back across the Atlantic, helped bring the children of WWII out of the rubble, and was even returned to its own roots by a new “English invasion” of the United States. This produced an artist like Freddie Mercury, who died of AIDS, and whose recording of “We Will Rock You” has been the unofficial anthem of every NFL game for years.

In a 2016 documentary about world-famous photographer Harry Benson, called Harry Benson: Shoot First, the artist discusses a photograph he took in Vietnam depicting a pair of wheelchair-bound veterans shaking hands—one American the other Vietnamese. Benson tells us that the Vietcong vet said to his former enemy, “We used to sneak up on your positions in the dark, not to kill you, but to listen to your music.” If that doesn’t say something about where our better angels live, I’m not sure what does.

HART: Copyright and the Historical Record

In a new post on Copyhype, Terry Hart responds to the general assumption that the Founders would be “appalled” by the state of copyright today.  Personally, I think the Founders would be appalled by the application of the 2nd Amendment today and impressed as hell by the role professional authors and creators play in their Republic–but that’s me.  Hart writes …

“…there’s always a danger with using history. Someone who’s trying to make a point may try to find evidence in the historical record to support that point, so there’s a danger of abuse. And perhaps there’s no period more prone to this type of myth and mischief then the Founding period, the period beginning after the end of the Revolutionary War, through the drafting and ratification of the Constitution, and through the first Congress.”

Read full article at Copyhype here.