Web Activists Are Waging a Guerrilla War to Free Martin Luther King from Copyright

Web Activists Are Waging a Guerrilla War to Free Martin Luther King from Copyright:

Last Friday was the one year anniversary of the massive online and real-world protests that helped bring down Congress' Stop Online Piracy Act, but the celebration online was bittersweet. The death of information freedom activist Aaron Swartz highlighted the perils of protesting an outdated scramble of copyright laws, and raised the ire of activists, some of whom blame aggressive government prosecutors for Aaron's demise. But one Internet activism group used the day to launch a small protest against copyright law, and to honor another champion of freedom: they took to video websites to upload footage of Martin Luther King, Jr's famous "I Have a Dream" speech, which remains, curiously, locked up under copyright.
On what Twitter dubbed #InternetFreedomDay, Fight for the Future began tweeting a link to a Vimeo version of the speech that it had uploaded under the title "MLK’s “I Have a Dream” speech is copyrighted. Share it anyway." The link spread fast, but within 12 hours it was dead, deleted by Vimeo for what appeared to be copyright reasons. Soon, another version was up at YouTube under Fight for the Future's name; as of this afternoon it had 30,584 views. On Friday, Douglas Schatz of Fight for the Future said the group was working to get the video uploaded to other video sites.
"Had SOPA and PIPA passed last year," the group writes on YouTube, "you could have gone to jail for sharing this video, and entire websites could have been shut down just for linking to it. This speech is too important to be censored by a broken copyright system." Echoing the civil disobedience of King, the group quoted the civil rights leader: "...one has a moral responsibility to disobey unjust laws."
In a story last year, I described the saga over King's copyright--the bitter tussles that have erupted over decades between family members, educators, online archivists, documentary filmmakers, and Britain's EMI, which, as of 2009, controls the copyright of King's landmark speech and all of his other intellectual property, on behalf of the King estate. The copyright claim is annoying to historians but legally understandable: King himself established a copyright over "I Have a Dream" in the days after his speech, allowing him and, presumably, his family and successors, to protect his intellectual property and prevent others from profitting from his work. As a result, finding a good complete video version on the web is difficult; it’s not even to be found in the digital archive of the King Center’s website, a new endeavor sponsored by JP Morgan Chase. To legally view the "I Have a Dream Speech," you'll need to pay twenty dollars for the official DVD.
After his death, the King family would copyright all of his other works. As a statement published on one King fan website reads,

The writings, documents and recordings of Martin Luther King, Jr. are protected by copyright. None of the documents may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotation embodied in critical articles and reviews. All rights reserved.

What's more frustrating to Internet freedom activists, and to students and educators, is that the law also extends to footage of King's speech, an address delivered on the Washington Mall that became one of the 20th century's most precious rhetorical artifacts. Legally, footage of the full speech cannot be broadcast or published without the permission of EMI, a restriction that extends to YouTube.

The Vimeo version of Fight for the Future's upload was removed on Friday

The music publisher has aggressivley protected its copyrights on YouTube, mostly blocking unauthorized videos of its pop stars but also of King, who remains EMI's most prominant non-musical "asset." While some versions of the speech have persisted through YouTube takedowns, they tend to be of poor quality: the most-viewed YouTube version of the speech is choppy and hard to watch, encoded at the very lossy resolution of 240p. The version uploaded by Fight for the Future (see below) appears to be derived from the same choppy footage.
The copyright dilemma over "I Have a Dream" began in December 1963, when King sued Mister Maestro, Inc., and Twentieth Century Fox Records Company to stop the unauthorized sale of records of the 17-minute oration. It was picked up by the courts again in 1999: in Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., the television network argued that because King had not claimed copyright before giving his speech but instead a month afterwards, the speech had, under the copyright law of the time, entered the public domain as soon as it was performed. But the King family argued that King's copyright claim stood, as the performance of the speech was not, by law, the same as a "publication." In its ruling, the U.S. Court of Appeals for the Eleventh Circuit sided with the Kings:

A performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent. This conclusion is not altered by the fact that the Speech was broadcast live to a broad radio and television audience and was the subject of extensive contemporaneous news coverage. We follow the above cited case law indicating that release to the news media for contemporary coverage of a newsworthy event is only a limited publication.

The speech was a copywritten performance distributed to the news media and not to the public, making it a “limited” as opposed to a “general” publication. Like other performances that appear on CBS, "I Have a Dream" was thus not in the public domain, giving the King estate grounds to sue CBS, which had used a portion of the speech in a 1994 documentary, The 20th Century with Mike Wallace. Because the case was ultimately settled by the two sides for an undisclosed sum, lingering questions about the speech's copyright protection have never been brought to court.

The YouTube upload by Fight for the Future

In the U.S., new wrangling over copyrights is due this year, as a 35 year old revision to copyright law enables artists who recorded music in 1978 to begin to reclaim their copyrights from the publishing companies that own them. That's in order, says copyright lawyer Lita Rosario, to "give artists an opportunity to negotiate after the value of the work has been realized."
The value of a recording by Simon and Garfunkel or George Clinton--or of a viral cartoon cat--may be a matter of culture, but it is mostly the domain of legal and business negotiations. The value of performances like Kings--and of the academic work that activists like Aaron Swartz struggled to distribute--extend beyond profit, and, it can be more reasonably argued, into issues of historical documentation, public memory and education. But barring any legal challenges, a quality video document of "I Have a Dream" will remain limited in distribution, at least until 2038, which is when its copyright expires.
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