The Electronic Frontier Foundation (EFF), a digital rights group, is suing Richard Silver, the man who alleges he created "the Electric Slide," over what it deems to be baseless copyright claims (Machulis v. Silver, 3:07-cv-1235-BZ). This lawsuit brings to the fore such important issues as freedom of speech and copyright infringement on the Internet. It also highlights some really bad dancing.
The EFF alleges Silver, through takedown demands, is making baseless copyright claims that resulted in YouTube removing a noninfringing video that included a scene of concertgoers attempting to do the Electric Slide.
The EFF hopes the case will result in a precedent-setting judgment that will discourage people from abusing the Digital Millennium Copyright Act (DMCA) "takedown process," by which parties can demand that Web hosts such as YouTube remove allegedly infringing material.
The lawsuit was filed in March in U.S. District Court in San Francisco.
Bad Dancing: You Gotta Know It
The genesis of this tale began when plaintiff Kyle Machulis of Berkeley attended a concert for the band Sublevel 3 and filmed the audience. He made a five-minute video, which included about 10 seconds of a portion of the audience performing something that looked like the Electric Slide. Machulis then posted the video on YouTube.
Shortly after that, Silver sent a DMCA takedown notice demanding that the video be removed because it infringed his claimed copyright in the well-known cha-cha.
The DMCA: Now You Can't Hold It
The 1998 DMCA governs copyright infringement as well as technology whose purpose is to circumvent measures intended to protect copyrights. Under the DMCA, rights holders can complain to services such as YouTube that content uploaded by users infringes their copyrights.
The DMCA states that, to avoid liability, an Internet service provider must not have the "requisite level of knowledge" of the infringing activity.
Most Web sites such as YouTube have a policy for "notice and take down" of alleged infringing posts. This is also the easiest provision to establish based upon the evidence. However, from a practical standpoint, this is the most cumbersome provision for both copyright holders and Web sites.
The Suit: But You Know It's There
The lawsuit alleges Silver knew, or should have known, that the Sublevel 3 video did not infringe his copyrights. The suit also challenges his copyright to the dance. It goes on to provide that even if Silver does own a valid copyright for the dance, Machulis' video constitutes fair use. It seeks injunctive relief and damages for misrepresentation of copyright claims under the DMCA.
EFF counsel Jason Schultz looks at the dispute in these terms: "What is at issue here is the threat to free speech that the DMCA takedown process poses." He also notes that "we've been seeing an increase in people using the DMCA takedown process to censor people."
No Dancing 'Ellen': Here, There and Everywhere
It is alleged by Machulis that Silver "is DMCAing every single video on YouTube" that features the dance. According to Machulis, this also includes "The Ellen DeGeneres Show."
On Silver's Web page he states that he has been trying to get compensation from "The Ellen DeGeneres Show" for a February 2006 segment in which actress Teri Hatcher and others performed the dance.
A February 3, 2007, CNet article reveals that Silver has a YouTube page on which he wrote the following: "Any video that shows my choreography being done incorrectly is being removed. I don't want future generations having to learn it wrong and then relearn it as I am being faced with now because of certain sites and (people) that have been teaching it incorrectly and without my permission. That's the reason I (copyrighted) it in the first place."
Looking Forward
According to Schultz, "You can copyright the choreography for dances and then enforce the copyright against anyone who publicly performs the dance."
But Schultz notes that: "Someone who performs it (the dance) noncommercially or adds their own artistic flair to the dance has a pretty good fair use argument that their performance is non-infringing."
A more important legal question is if one does the Electric Slide badly, does that protect the person from a copyright infringement lawsuit? According to Schultz, a badly performed version of the dance may still be protected as it may be a derivative of the original. But a really terrible version of the dance, one with many missteps, would not be covered.
Schultz explains, "Slight variations (of the original) are arguably derivative, but something else, like doing (a dance) out of sequence, you're probably not even getting close to his copyright."
Ultimately, we may have to wait and see how a jury would rate this badly performed dance. Is it so bad as to almost be a completely different dance? Or is it just slightly bad as to still be recognizable and fall within Silver's claimed copyright?
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