Similarly, I say that Einhorn gives “his side”, and I call his work an “essay”, not a “report” or similar term. I think the “one-sided” was implied there; I’m sorry it wasn’t explicit enough for you and I’m sorry you lost so much money.

I would also like to point out that Einhorn wrote and published his essay weeks before I wrote and published mine. My piece was partly a response to Einhorn’s shot across the bow.

My site is “one-sided” only in the sense that I advocate a position – which is no different from what Einhorn does. And I provide backup for everything I say about Einhorn, including court transcripts and even exhibits that Einhorn himself entered into the record.

Finally, if somebody costs you close to $200K in legal fees over a matter of literally 300 dollars, not to mention registered an unauthorized derivative copyright on a work of yours, and then used every trick in the book (although those have just about run out) to avoid cancelling the unauthorized copyright, I wonder how far you would go to make a case for the other side.

“The Strange Case of Edward Einhorn v. Mergatroyd Productions by Nancy McClernan which gives a (one-sided) overview of the 2005 lawsuit. (archive)”

10-second pattern: not copyrightable.

10-second pattern, repeated many times with variations so as to constitute a “full choreography”: copyrightable.

One of those many variations: copyrightable as a subset of the larger choreography.

Basically, if this paragraph by Emerson is copyrightable: “If we require the originality which consists in weaving, like a spider, their web from their own bowels; in finding clay and making bricks and building the house; no great men are original. Nor does valuable originality consist in unlikeness to other men.” then the phrase “no great men are original” is also copyrightable and nobody can use that phrase again without paying royalties to Mr. Emerson who popularized it.

Which is wrong. But so is copyrighting a 10-second social dance move.

The “Electric”, which you just linked to, is a semi-complicated creation, with full layout for a multi-minute dance, describing in text notation what moves to make for an entire song, and which you copyrighted in 1976, the year that one could copyright without notifying the copyright office and which could cover this very sort of situation, that is, choreography.

The second, called more often than not “The Electric Slide”, would be a short, less-than-ten-seconds-to-do series of steps that are what showed up in any amount of countless wedding videos and in the video you saw fit to issue a takedown notice for recently.

While I don’t like that the situation exists and think the case law and policies are meager, I have no issue or problem with your owning the copyright for the choreography you linked to. I don’t think anyone overly disputes that.

But do you also claim ownership of the second dance, the less-than-ten-seconds one?

And which of these exactly did you license Creative Commons?

While I appreciate your interest in the lawsuit and the passion for your legal position, I wish you had reached out to us here at EFF before speculating on the good or bad of the settlement. I get emails all the time from folks who are curious why we do what we do at EFF and I would have been happy to answer your concerns if you had written me. I’ll do it now, but just for future reference, don’t hesitate to drop us a line if you want to engage in this sort of debate.

As to the merits of your critique, I think you might have misunderstood the terms of the settlement. No where in this resolution do we concede that Ric Silver has any copyright in The Electric Slide. And as you correctly point out, one leading commentator (and several additional cases that we’d uncovered that I’d be happy to share with you) suggest that social dance steps that are not part of a dramatic storytelling are not copyrightable subject matter. As such, we were more than eager to prove in court that Mr. Silver had no copyright to the dance, and we would have done so if we had been given the chance.

The “problem” arose after we filed our suit when Mr. Silver quickly and immediately capitulated from his earlier threat against Mr. Machulis. He made it clear that he no longer thought our client’s video was infringing and was willing to withdraw any allegations of infringement regarding its use. When a copyright owner does this in litigation, it can potentially kill the case. Cases in Federal Court require under Article III of the Constitution that there be a “case or controversy” between the parties — an actual dispute for resolution. Since Mr. Silver had withdrawn his accusations of infringement, his attorney could have argued that the issue of copyright infringement (and thus copyrightability of the dance itself) was no longer present. Moreover, his willingness to then promise the world (via the Creative Commons license) that he would no longer threaten any non-commercial user for performing it essentially guaranteed that he would never again abuse the copyright system against our client or anyone else under these facts.

So what about commercial use? Well, as I mentioned, we would have been more than happy to take Mr. Silver to court over this issue and challenge his copyright. However, courts do not take kindly to parties who manufacture disputes in order to seek court rulings when there is no real dispute between them. In this case, there is no indication that Mr. Silver will be sending any more take-down notices or threatening folks like yourself for performing the dance, even commercially. To have pushed on that issue in front of the judge when there was no clear and actual threat to our client or to any other identifiable individual would have posed a serious risk to the credibility of both our client and EFF. At best, it would have encouraged the court to dismiss our case out of hand (with no settlement and no CC license) and at worst, it could have lead the court to find some way to rule against us to teach us a lesson for wasting its time and judicial resources. As Officers of the Court and public interest advocates, that’s just not a risk we’re willing to take, either on our own behalf or that of our clients.

Moreover, it is important to remember that we are a non-profit with limited resources. The Machulis v. Silver case is hardly the only case we’re fighting at the moment. We have also been heavily engaged in copyright battles with Viacom, UMG Music and Uri Geller, battles over warrantless surveillance with AT&T and the DOJ, Patent Busting, FOIA work, etc. Thus, given the unlikelihood that a court would have ruled on the copyrightability issue (let alone issued a precedental ruling in our favor) and the high cost of litigating such issues, we felt we could do much more to help our clients and the public via the settlement, which ensured victory for our client, 100% litigation-free use of the dance for all non-commercial users, and strong support for Creative Commons, an organization in which we believe strongly, and at the same time freed up our legal team to focus on other cases and issues which deserve just as much attention.

That said, 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. However, I honestly think we’ve seen the last of Mr. Silver and his campaign to go after any kind of individual who performs his dance, even for commercial purposes. If he does, though, please do not hesitate to give us at EFF a call or shoot us an email. We’d like nothing more than to finish the job.

Sincerely,
Jason Schultz
Electronic Frontier Foundation

legal battles are costly both for the performer and for the eff.