ArtsWatch: Senate Candidate Vanquished By Don Henley?

Satirical songs fail court's parody test because of their broad subject matter
June 07, 2010 -- 6:37 am PDT
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

Chuck DeVore is hoping to become the Republican candidate for California's Senate race after tomorrow's primary, but on June 1 he learned that he lost a U.S. District Court infringement case brought by Don Henley because he failed to attack and ridicule the multiple-GRAMMY winner sufficiently. California Judge James Selna issued a tentative order against DeVore and heard arguments by counsel regarding his resolution of this major fair use case that relies on the distinction between parody and satire. In April 2009, DeVore posted an adaptation of "The Boys Of Summer" called "Hope Of November" on YouTube but the website took it down after Henley complained. Judge Selna acknowledged the adaptation had elements of parody — ridiculing Henley as a supporter of President Obama — but found it went beyond the limits of parody into satire because the thrust of the adaptation really wasn't focused on Henley. DeVore followed up on his yanked YouTube video with an adaptation of "All She Wants To Do Is Dance" called "All She Wants To Do Is Tax" — Selna found this was pure satire because it didn't attack Henley at all. Candidates often use well-known songs and are too often lax about licensing, for example a conflict between Jackson Browne and Sen. John McCain (R-Ariz.), which was resolved in 2009 by a settlement. Prior to the June 1 order, DeVore's attorney said, "This case may decide the extent to which people can use cultural landmarks — be they famous musical compositions, films, or visual art — in order to convey a political or social message." Although the District Court has not finally resolved this case yet, it seems the answer would be that landmarks need a license unless the adaptation's purpose is to ridicule the original work or its creator — a true parody, protected by fair use.

Networking equipment supplier Cisco released a forecast on June 2 that global Internet traffic will quadruple by 2014. It predicts a massive increase in streaming video that will overshadow peer-to-peer file-sharing in raw traffic by the end of this year and continue growing at a faster rate than P2P. Cisco Service Provider Group Senior VP/General Manager Pankaj Patel said, "[Internet Protocol] networks must be intelligent and flexible enough to support this tremendous variety of traffic growth. The Cisco [Visual Networking Index] Forecast offers a global snapshot of video's significance in our daily lives and signals the need for further network preparations to support the quadrupling of the Internet and the more than 1 billion online video users by 2014."

On June 1 the Federal Communications Commission called out for 10,000 volunteers to participate in a scientific, nationwide test of broadband quality that will use customized home-routers to test download speeds, latency, jitter, packet loss, and more. Results are expected by the end of the year. The FCC also called for public comment on the best way to measure wireless mobile broadband speed. A survey released the same day found that 91 percent of home broadband users are somewhat or very satisfied with their speeds but 80 percent don't know what their speed is. The agency wants providers to give consumers more reliable information before choosing a plan or provider, and said marketing phrases such as "blazing fast" provide insufficient consumer information.

British regulator Ofcom released a proposed code of practice on May 28 for Internet service providers to address online piracy. Comments are due by July 30. ISPs will be required to keep records of infringement, content owners will be able to request that infringers be notified, and for serious repeat offenders, content owners will be able to obtain personal details through court order. The proposal only applies to fixed-line ISPs with more than 400,000 subscribers but could potentially be applied to smaller ISPs in the future. It does not address the issue of disconnecting repeat offenders. The draft does not contain safeguards for consumers to complain they are being wrongly targeted but Ofcom promises to create an "independent, robust subscriber appeals mechanism." The code is expected to go into effect next year.

Irish rights organization IRMA is taking ISPs O2 and 3 Ireland to court, attempting to force them to implement a graduated response program to crack down on online piracy and ultimately to disconnect repeat infringers for a period of time. IRMA also has a court date scheduled for June 17 with UPC and is in negotiations with several other ISPs. IRMA and Eircom are already cooperating and the terms of their settlement require IRMA to crack down on competing ISPs.

On May 27 the Danish Supreme Court upheld two lower court rulings against Telenor, finding that the ISP must continue to block notorious torrent-linking site the Pirate Bay. Johan Schlüter, attorney for the plaintiffs, said, "The [court's] decision…confirms that the ISPs are part of the solution to the [piracy] problem."

House Judiciary Committee Chairman Rep. John Conyers Jr. (D-Mich.) wrote to the CEOs of Facebook and Google on May 28 requesting information regarding the Internet firms' potential violations of users' privacy. Separately, on June 3 Google CEO Eric Schmidt told The Financial Times that his company will turn over data their street view cars collected about private home wireless networks to European authorities who have launched investigations.

On June 1 the World Intellectual Property Organization launched the WIPO GOLD portal to provide the public with resources for intellectual property research. WIPO Director General Francis Gurry said, "The launch of WIPO GOLD is a significant step towards fulfilling one of the organization's strategic goals — that of serving as a world reference source for IP information and analysis."


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