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Friday, May 25, 2007

Whose Slide Is It, Anyway?

Elsewhere in the blogosphere, there’s a wonderful example of lawyer-technologist mutual incomprehension playing out. And it all started with the Electric Slide.

This familiar so-called dance, which today would be named the Nanoelectronic Slide or the iSlide, was allegedly choreographed by dancer Ric Silver in 1976. In the last year, Silver began sending DMCA takedown notices to Youtube, claiming that every video of someone dancing the Slide was a copyright infringement. It seems unlikely that Silver really planned to extract a few doubloons of Danegeld from every wedding in the country. Instead, he was hoping for licensing fees from TV shows and other big-time productions, went after the little guys as part of a broad campaign, and wrapped himself in the flag of artistic integrity:

Any video that shows my choreography being done incorrectly is being removed. I don’t want future generations having to learn it wrong and then relearn it as I am being faced with now because of certain sites and (people) that have been teaching it incorrectly and without my permission. That’s the reason I (copyrighted) it in the first place.

One of his DMCA takedown notices targeted Kyle Machulis, a programmer for Second Life who filmed ten seconds of concertgoers attempting to Slide. Machulis turned to the Electronic Frontier Foundation, which has been having a lot of success fighting overly broad DMCA takedown notices, and which promptly filed suit on his behalf. This week, the case settled: Silver agreed to drop any claims of infringement and to place whatever copyright interest he had in the dance under a Creative Commons license, allowing anyone anywhere anytime to slide the Slide without paying the Silver. Machulis and the EFF, for their part, agreed not to pursue their claims that the dance was uncopyrightable and not properly registered, and that dancing embarrassingly badly in public while drunk is a fair use.

Enter Jason Scott (Sadofsky), who has been performing an unbelievable public service as an pre-Internet archivist and as a documentarian first of the history of BBSs and now of text adventures and coin-op arcades. He’s your classic tech blogger: opinionated and committed to the Creative Commons vision of sharing. And he didn’t like the settlement, not one bit.

In a pair of blog posts, Scott called the settlement “Grade A Bullshit.” Scott, who knows his way around copyright law, made the quite reasonable argument that Silver didn’t have a copyright in anything projectable in the first place, so the dance moves were already in the public domain. For the EFF to concede that it could be was a step backwards. He drew a thoughtful response from Jason Schultz, the man-about-town patent-busting EFF attorney who worked on the case. Jason pointed out that upon being sued, Silver had almost immediately promised not to sue any noncommercial users, immediately creating a significant case-or-controversy problem.

So here’s why this little exchange is such a great example of two cultures—lawyer and techie—regarding each other with bafflement: Jason and Jason are in almost total agreement. Both think that the Electric Slide is not and never has been subject to copyright, and that a court ruling to that effect would be just plum dandy. Moreover, they know each others’ turfs fairly well. Jason One (Scott) knows some serious copyright law; Jason Two (Schultz) and the EFF are about as tech-savvy as lawyers come. And yet the attitudinal clash is painful to watch. Jason One speaks a language of principle and clarity of message; Jason Two speaks a language of litigation tactics and trade-offs.

Consider some examples. Jason One thinks that “bringing CC into the mix just confuses the issue.” Those of us who wear lawyer hats would say that for Ric Silver to use a CC license doesn’t mean that anyone other than Ric Silver believes that the Electric Slide is copyrighted. All it means is that Ric Silver will be in big trouble if he sues anyone who uses it noncommercial. But when Jason Two, thinking in these terms, writes, “I can completely understand your frustration with the thought that Mr. Silver might come back and threaten someone who performs the dance for commercial purposes or lacks attribution,” he’s missing the source of Jason One’s anger. Jason One isn’t upset about the actual mechanics of who can sue whom. Instead, he sees a Creative Commons license and a promise not to sue as worse than a promise not to sue alone, because the very fact that Silver is using a CC license without complaint from the EFF seems to say that the EFF thinks Silver has a copyright to begin with.

Or consider the resources issue. Jason Two runs through some of the other litigation that the EFF is involved in and points out that pursuing this case despite a serious justiciability problem would hurt EFF’s credibility and pull resources away from, say, suing Uri Geller. Jason One simply rejects this point of view, saying, “Don’t offer to carry water if you don’t have enough buckets.” That’s a beautifully techie thing to say: it’s clear, it’s humane, and it’s a sensible way to handle the conflicting demands placed on a sysadmin. But note how it ignores the half of Jason Two’s point about credibility. Litigators back off from possible arguments all the time to keep judges from getting angry, but Jason One doesn’t even notice that Jason Two is making this sort of a point, it’s so far off his radar.

These kinds of crossed signals happen all the time at the law-tech interface. (The 09 F9 kerfuffle is another great example.) The language of litigation is performative in ways that are hard for outsiders to parse—but so, too, are the natural and artificial languages of techies. Even two smart and hoopy froods can miss each other’s points like the proverbial ships in the night. Dealing with this divide has to be one of the major tasks of technology law.

Posted by James Grimmelmann on May 25, 2007 at 11:25 AM in Intellectual Property | Permalink

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Comments

Jason 1: why do you think the CC license is such a pinata? I confess, I don't really see why there's so much skepticism about it... is it really more dubious than (e.g.) the sorts of clickwrap licensing agreements the courts enforce? Other, that is, than imposing different sorts of restrictions.

Posted by: Paul Gowder | May 26, 2007 1:02:29 AM

Bruce, there's been a lot more commentary on my blog about this.

Basically, there's a 1976 "Electric Slide" choreography that Silver has done which *is* totally copyrightable as regards 1976 copyright law, although as I mention in a lot of places it's not that much contested in case law. On its own, it's pretty clear.

The issues I mostly raise are that people are doing a snippet of this dance, a 8-step version instead of the larger work that Silver designed way back then, and he claims ownership of that and is trampling over fair use.

The result of the EFF's involvement is a murky "licensed under Creative Commons" finish line that doesn't seem to apply, Silver doesn't seem to understand beyond a simple "I don't want to take this to court so yeah whatever" and people thinking the problem is "solved" when it's mostly "dormant".

And yeah! That guy stole Spider-Man!

Posted by: Jason Scott | May 25, 2007 3:53:19 PM

P.S. Not to throw a monkey in the wrench, but who says the Electric Slide isn't a copyrighted choreographic work? Silver may have a registration problem -- his website seems to indicate that he has a registration *pending* for the choreographic work, and if he hasn't received it yet, most courts say that he cannot sue -- but that doesn't mean he doesn't have a copyright.

On the other side of the coin, is that Spiderman dancing on the bottom of Silver's website? Sure looks like him.

Posted by: Bruce Boyden | May 25, 2007 3:03:51 PM

James, I agree completely with this post. Exactly these same sort of conversations happen between lawyers and engineers on the other side of the table from the EFF, I can assure you.

Posted by: Bruce Boyden | May 25, 2007 2:38:42 PM

!!!! I'm Rich !!!!

Posted by: Jason Scott | May 25, 2007 2:34:57 PM

Dear Mr. Scott:

I, David Krinsky, hereby release to you, Jason Scott, as well as to anyone falling within the definition of "you" in section 1(f) of the Creative Commons Attribution License, United States version 3.0 (hereinafter "the License"), the play "As You Like It" (hereinafter "the Work"), available at http://www.krinsky.net/as_you_like_it.txt, under the terms of the License.

As section 5 of the License indicates, please note that I make no representations or warranties of any kind regarding the Work, including any representations regarding its authorship or its ongoing availability at the URL linked above.

Hugs,
D.

Posted by: David Krinsky | May 25, 2007 2:13:40 PM

Does it pollute things if I post here? What a well-researched, well-written weblog post!

The real secret is that Creative Commons is more principle than law, anyway; while it may be legally sound, I have no doubt it'll be torn apart the first time someone swings a good bat at it, and it'll break open like a candy-filled pinata, with little sad Larry Lessigs raining down.

That said, I can't help but use the thing. Seeing it used wrong like in this situation angers me and is what drove the post.

Jason Schultz gets a hug the next time I see him.

Posted by: Jason Scott | May 25, 2007 1:41:17 PM

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