ASCII by Jason Scott

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Electric Slide Lawsuit: Jason Schultz Responds —

Jason Schultz, attorney for the EFF, was kind enough to post a comment in my weblog regarding my opinions and commentary in yesterday’s entry. Here’s his comment, unbroken and verbatim, with my response below.

Jason,

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 Silver had withdrawn his accusations of infringement, his attorney could have argued that the issue of copyright infringement (and thus copyrightability of the dance itself) was no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

Thank you for the extended and informative response, Mr. Schullz.

My opinion, which I will maintain, is that it was a major mistake to go from “he has dropped the lawsuit” to “he has agreed to license his work under Creative Commons”. I still maintain that Creative Commons is an absolutely dysfunctional tool for this situation, that the copyright law’s stated ability to license choreography is still rather unclear and untested for anything useful, and that bringing CC into the mix just confuses the issue terminally.

I do not accept “we have limited resources” as an excuse under any situation. Don’t offer to carry water if you don’t have enough buckets. I entirely understand “we found what we thought was a good resolution with minimal damage for all parties involved”, which makes total sense; you file a complaint, Silver immediately capitulates, everyone waves happy flags and Machulis goes back to making Teledildonics. All well and good.

I question whether Mr. Silver, who was happily issuing DMCA takedown notices against YouTube and against a number of dance websites for any mention of his Electric Slide, truly understands Creative Commons and what exactly he’s done here. I would think that he would be under an impression, bolstered by this action, that he is the generous “owner” of the Electric Slide, allowing “his” dance to be used. I think that postings and articles about this case using terms like “public domain” show exactly how confusing the situation is to people not intimately scouring through essays and case law like I had to for the last 48 hours.

In other words, I think Silver still thinks he owns the Electric Slide. And I think that this was not handled well.

Like all good high-energy activist organizations, you step into a lot of situations and defuse or engage them as needed, making decisions that are both what you perceive to be what is the common good and what is good for your chosen clients. Sometimes those two goals are at odds. I think this is one of those cases.

You did right as far as Machulis is concerned. You did not do right as far as Creative Commons or the overarching situation is concerned.

– Jason Scott

P.S. I’m sending you guys $100 for the time taken to write a public response to my weblog entry.

Update: Here is a fairly incredible post about the disagreement Jason and I have. (archive)


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7 Comments

  1. Kerri says:

    Here’s where I don’t get the EFF’s willingness to agree to the current disposition this case.

    At the top of every Creative Commons license is the following:

    “THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE (“CCPL” OR “LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW.”

    *IS* protected. Not “may be” protected. But “is”. As far as I know, something that is protected by copyright or other applicable law cannot, in fact, be in the public domain, as public domain works are not “protected”. If, as a statutory requirement of Creative Commons, a work must be “protected” by copyright or other applicable law, then it cannot be in the public domain.

    By accepting that this work may hold such a license, the EFF also must accept, then, that the work cannot be in the public domain as it must be protected. I think the crux of this issue is that social dance steps cannot be protected, and as such, are in the public domain. If they are in fact in the public domain, they should not be able to have a CC-license attached.

    If the EFF accepts that a work may be CC-licensed, then by the statutory requirements of the CC license, the EFF is also accepting that social dance steps are licensable, and as such, cannot be in the public domain, which, I agree, opens up a whole new can of worms.

  2. B says:

    I’m siding with Jason here: let the guy think what he wants to think.

    I work in intellectual property (IP) myself, and have seen countless people make ignorant claims that they owned something that U.S. law clearly says they can’t. With patents especially, 99% of the community consists of earnest and sane people, leaving us with 1% who are total crackpots.

    There’s just no point trying to disabuse everybody who has some zany theory of IP law. There are more of them than us (by far), and they’re mostly harmless anyway, because no court takes them seriously.

    For patents, the great majority are never litigated. The inventor buys a coffee mug with the first page of the patent printed on it and that’s as far as it goes. So to strike down every invalid patent is a waste of time—ya just go after the ones that are litigated and creating a problem. Similarly, if Mr. Silver puts a CC license on the electric slide and the King James Bible, there’s no point caring unless he asserts them in an aggressive way, and we’ll have to take Mr. Schultz’s judgment that he won’t.

    As for other copyright claims on dance moves, they’re just as invalid as they were last month.

  3. Jason Scott says:

    I continue to disagree (and I assume you mean you’re siding with Jason Schultz, not Jason Scott) because of the fact that this imbues the guy with the sense he owns a tiny part of the dance; just look at his comments in the previous weblog entry.

  4. Michael Taylor says:

    Hi,

    During any part of the proceedings did anyone do ANY basic checks on the dance itself. By this I am referring to Ric Silver’s INSISTANCE that the dance was ‘invented'[Ric Silver’s original word] to the music of ‘Electric Boogie’ by Marcia Griffiths AND this was done in the year 1976.
    Simply, if one have done a very basic check they would have found that the song was FIRST recorded in the winter of 1983. And if they had delved a little deeper they would have also thrown a VERY large cloud on Mr. Silver’s insistance that Bob Marley was also on the recording. There are many other anomalies and contradictions within Rick Silver’s version of ‘event’s that for the most Junior of Schoolchildren to say…’Hang on.. how can this guy says he choreographed a dance some 13 years or 6 years (if he managed to get hold of a UK/Jamaican copy) prior to the release of the music….. ‘.
    The answer is quite simple… he didn’t and thats if he EVER Choreographed the dance in the first place. If he lied about the music…

    Did ANYONE read the discussion on Wikipedia site (The Electric Slide) and IF they did did they notice the mega number of times Ric Silver altered his story to suit.

    Going off the result of the findings – obviously not.. and THAT sickens me.

  5. michael taylor says:

    typo error…
    ‘..FIRST recorded in the winter of 1983.’ should read ‘..FIRST recorded in the winter of 1982′.

  6. Ric Silver says:

    I DO OWN The Electric Slide –
    I have filed with the Library of Congress back on Feb 28th 2006 and am STILL waiting for a decision from them – but have received a letter stating that since I have filed my paperwork – I can file suit on an infringement basis –
    I have all the legal documentation to PROVE that I created and copyright protected my dance in 1976 – and am presently being shown on National TV Shows with credit being given for my work –
    You might want to do a little more research –

    Ric

  7. Jason Scott says:

    Hey there, Ric.

    Nobody doubts you filed papers. I simply question whether you really understood what you did when you licensed the work creative commons.