Everyone loves doing the Harlem Shake, the latest dance craze to take YouTube by storm. Your friends have done it, law students have done it, and even Justin Timberlake has done it on Saturday Night Live. It’s a cultural phenomenon, and everyone wants to get involved, but eventually, the fun has got to stop — and as is usually the case with these viral videos, that stopping point comes quicker than a former Biglaw partner having a mid-life crisis.
This time, the fun is stopping because the ultimate party-killers are now on the scene to assess the damage. That’s right: lawyers are poking their noses into the Harlem Shake because of — you guessed it — copyright violations.
Let’s talk about the underlying legal claims before you feel the need to put on a Halloween costume in March and violently flail around to a 30-second music clip on film….
Ed. note: This post appears courtesy of our friends at Techdirt. We’ll be sharing law-related posts from Techdirt from time to time in these pages.
Last week, we wrote about some of the copyright issues around the whole “Harlem Shake” meme (and, yes, we know it’s not the “real” Harlem Shake, so don’t even bother commenting about that). However, a few days ago, I was talking to an old friend who also happens to be an IP lawyer, and he pointed out one of the nuttier things about our copyright system. Yes, he said, Baauer is making tons of money by monetizing all of those Harlem Shake videos with ads. But Baauer actually had almost nothing to do with the popularity of the song or the meme itself. This isn’t a Psy situation, where his video/dance created the meme. Instead, as we discussed, there was this video, which led to this video, and then this video and then this video… and then tens of thousands of copycats bloomed.
Yes, they all use 30 seconds from Baauer’s song (which itself included many samples from others, some of which do not appear to be licensed, based on Baauer’s own statements), but the popularity was because of the original video by “Filthy Frank,” and then TheSunnyCoastSkate (TSCS) building on that to create the basic framework, quickly followed by PHLOn NAN and the folks at Maker Studios. In many ways, this reminds me of Derek Sivers’ popular discussion of the importance of the “First Follower.”
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The last time I flapped my wings your way, I tried to make at least enough noise about your mobile phone to make you more than a little bit uncomfortable. I hope I did. If enough of us become anxious enough about the known and unknown unknowns and knowns in our mobile phones, then we can start making wise decisions about how to manage that information and its resultant investigations.
Today, I’d like to put a finer point on the last installment’s topic by asking a question that seemed to catch most attendees off-guard at a conference panel that I moderated last week: is there discoverable personal information in a mobile app? Our panelists’ answer was a uniform “yes” with one stating that, if he had to choose only one type of data that he could discover from a mobile phone, he’d choose app data. Why? Because there’s simply so much of it and because almost all of it is objective – not just user-created like an email – but machine-tracked like GPS, usage duration, log in and log out times, browsed web addresses, browsed actual addresses. Also, most of us seem to have the idea that data doesn’t actually “stick” to our mobile devices the way it “sticks” to our hard drives. Maybe there’s a disconnect based on the fact that our phones are mobile so we assume the data is mobile to?
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