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 Silver had withdrawn his accusations of infringement, his attorney could have argued that the issue of copyright infringement (and thus copyrightability of the dance itself) was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

Categorised as: Uncategorized

Comments are disabled on this post