Law enforcement officials across the United States have become enamored of the StingRay, an electronic surveillance device that can covertly track criminal suspects and is being used with little public disclosure and often under uncertain legal authority. Now, though, some states are pushing back, and are requiring the police to get a court order and local consent before turning to the high-tech tool.
A federal court judge in Los Angeles has declared the song Happy Birthday to You belongs in the public domain, dealing a blow to the music publishing company that has been collecting royalties from the song for decades.
US district judge George H King ruled on Tuesday the copyright originally filed by the Clayton F Summy Co in 1935 applied to a specific arrangement of the song, not the tune itself.
King ruled that Summy never acquired the rights to the song’s lyrics, and the defendants’ claims to the contrary were “implausible and unreasonable”.
“Because Summy Co never acquired the rights to the Happy Birthday lyrics, [the] defendants, as Summy Co’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics,” King wrote in a judgment posted online [local copy].
Only third party copies of the ruling are available at the moment. US District Court, CA Central District might eventually post their own version.
While Happy Birthday’s copyright status may no longer be a classroom example, the ruling is a pretty good example of how an interlocking set of claims can be erected when trying to maintain a position, as well as how such things have to be dismantled in order to win a court case.
The distinction between the music and the lyrics as copyrightable elements is critical in this case because both Parties agree that the Happy Birthday melody was borrowed from Good Morning and entered the public domain a long time ago. The Parties disagree only about the status of the Happy Birthday lyrics. Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935. Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may have been written by someone else, the common law copyrights in the lyrics were lost due to general publication or abandonment before the lyrics were published, and the rights were never transferred to Summy Co.
[…] Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics. Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implausible and unreasonable. Defendants’ suggestion that the Third Agreement effected such a transfer is circular and fares no better. As far as the record is concerned, even if the Hill sisters still held common law rights by the time of the Second or Third Agreement, they did not give those rights to Summy Co.
In light of the foregoing, Defendants’ Motion is DENIED and Plaintiffs’ Motion is GRANTED as set forth above. Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.
and, of course, there’s still the potential for appeal…
For an entertaining screed on the subject, there’s this Pajiba article: Happy F***in’ Birthday!
It was nice to see that someone at the NYTimes made this connection: Volkswagen’s Diesel Fraud Makes Critic of Secret Code a Prophet [pdf]:
“Proprietary software is an unsafe building material,” Mr. [Eben] Moglen had said. “You can’t inspect it.”
That was five years ago. On Tuesday, Volkswagen admitted it had rigged the proprietary software on 11 million of its diesel cars around the world so that they would pass emissions tests when they were actually spreading smog.
The breadth of the Volkswagen scandal should not obscure the broader question of how vulnerable we are to software code that is out of sight and beyond oversight.
Sadly, the article closes with the EPA closing ranks with the automakers:
That is not how carmakers or even the E.P.A. see things. The code in automobiles is tightly protected under the Digital Millennium Copyright Act. Last year, several groups sought to have the code made available for “good-faith testing, identifying, disclosing and fixing of malfunctions, security flaws or vulnerabilities,” as Alex Davies reported last week in Wired [pdf].
A group of automobile manufacturers said that opening the code to scrutiny could create “serious threats to safety and security.” And two months ago, the E.P.A. said it, too, opposed such a move because people might try to reprogram their cars to beat emission rules.