8 ms·

Disney's writer wage theft, a year on

232 points by gryson 4y ago

pipeline_peak 4y ago
When I look at anti Disney art like in this article, I find it ineffective and just weird how they still use Mickey Mouse. Sure he’s still the mascot like Mario to Nintendo. But when you look at what Disney really is now, he doesn’t represent a whole lot. I don’t think a lot of kids even know what he is. It’s like using Woody Woodpecker to represent Comcast.
isitmadeofglass 4y ago
Seems like this is breach of contract. What’s preventing the authors from selling the creative works to Netflix? If Disney tries to pull them into court, they can’t really show a contract where they’ve kept up their obligation to the creator.
- SamoyedFurFluff 4y ago
  Disney is relying on the fact these people don’t have resources to handle legal threats. The person who raised the alarm first had to reach out to writer guild type organizations, because he needed his money to pay for his cancer treatment. Also, many of these authors are writing under existing franchises. (The kickoff incident is a bestselling author of Star Wars novels.) They couldn’t sell their work elsewhere even if they wanted to, because the franchise they wrote for is still owned by Disney and the organization that would buy that work would need to negotiate for some kind of licensing agreement.
  - teddyh 4y ago
    Also, Netflix probably don’t want to give its own authors any ideas of expectic fair treatment.
    - andrew_ 4y ago
      That seems like rather a baseless assumption without supporting proof.
    - Broken_Hippo 4y ago
      The entire creative industry is full of this stuff, and generally folks know they aren't going to get fair treatment. And it has been a problem for decades. I mostly know this stuff because I looked. I had dreams of doing animation or something like that as a child/teen. That was back in the 90s, and the stories about bad treatment have continued to current times. Don't get me wrong, at the same time there are folks out there working on this stuff that are living their dream despite it all, but it definitely deterred me. I can do art without it making money with it, after all.
- SkeuomorphicBee 4y ago
  One important detail: the works in question where written using Disney (Lucas Films,Marvel, ...) characters, so even if the original contract is void, the authors can never own the full rights to sell it to Netflix.
- kjs3 4y ago
  "Breach of contract" by one party doesn't mean a court will allow the other party gets to do whatever they want. But more practically, if the creator sells the work to Netflix, they're going to get sued, and they would then be on the hook (legally, financially and reputational) for proving in court 1) contract was breached, and 2) that gives them ownership of the work product that allows them to sell to another party. Against Disney's warchest.
invalidname 4y ago
This should be used by anyone who is sued by Disney for copyright infringement. Why should I respect the copyright of your corporation if you don't play by the same rules?
- delusional 4y ago
  "You're a hypocrite" doesn't strike my as a particularly strong defense. I understand the moral impetus of your argument, I just don't think it's very good legal advice.
  - invalidname 4y ago
    Totally not a lawyer. But this could be very damaging to some copyright cases that aren't clean cut. At least here (not from the US) if you can show that the plaintiff doesn't respect the law they're asking to uphold, the judge has some leeway. Since they're a global company and very litigious, this might prove useful to some lawyers.
    - wonks 4y ago
      Interesting! If you don't mind me asking, what country are you in? I'm asking because I'm an American and I don't think I've ever heard of this.
      - techsupporter 4y ago
        I think the person you're replying to was referring to the "clean hands doctrine". In common law, one of the Maxims of Equity--or principles by which courts try to rule--is that "he who comes into equity must come with clean hands." An incredibly simplified overview of this doctrine is that a person cannot claim equitable relief (that is, win a civil suit on the basis of equity) in a situation where the person has also acted wrongly or unfaithfully. A common example is that a landlord may not pursue eviction of a tenant if the landlord has violated the tenant's rights. The clean hands doctrine is very nebulous and since I'm not a lawyer I don't claim to know all of the twists and turns. In my reading, the doctrine does not mean someone must be "completely pure" in an area in order to prevail. Generally there has to be a relationship between the thing the person wishes to sue for or defend against and their own actions. So while Disney might be abusing copyright in other areas, the doctrine (probably?) would not stop them from claiming copyright privilege in unrelated suits, such as against someone selling derivative works.
senko 4y ago
The copyright law, as it currently exists in the US[0], is an unholy mess created by dozens of interest groups with more or less lobbying power. It has nothing whatsoever to do with promoting creativity, arts, or making sure artists can live off their work. It has everything to do with how much muscle somebody had in negotiations and lobbying. If you have doubts, read "How to suceed in the music business" and weep. (Film is worse, and for books, just read the OP) [0] And most other countries I'm aware of, to a different/lesser extent.
- sam_goody 4y ago
  The patent law is even worse. Anything that requires courts will favor the large corps that have the money to spend endlessly on lawyers. Patents keep the new guys out of the game. Say a big company steals a product from a startup, guess who cannot afford the legal battle? If threatened, the big guys claim that ten of their not-quite-related patents were infringed by startup, and counter-sue. From first hand experience, the patent keeps ideas out of use (all patent lawyers recommend submarine patenting any new ideas instead of developing them), hurt small companies and inventors, and are huge bludgeon against anyone that the big cos want to hit.
- sschueller 4y ago
  The US is trying everything to force their copyrights down the rest of the world's throat as well. Switzerland was added to the US copyright watch list[1] because its copyright laws are a bit less draconian. [1] https://www.swissinfo.ch/eng/online-laxity_us-puts-switzerland-on-copyright-watch-list/42119418 https://www.swissinfo.ch/eng/online-laxity_us-puts-switzerla...
rtpg 4y ago
So the “we acquire assets not liabilities” argument forwarded by Disney… I have heard of many acquisitions that follow this model. Any lawyer/lawyer-adjacent people have any thoughts about the validity? It does feel pretty uncontroversial that Disney owns the book contents but is it obvious that the royalty payment scheme must transfer with that? But the opposite seems odd as well…
- car_analogy 4y ago
  It is utter nonsense, let me show why: 1: Acquire a license for ARM/x86/ISA and patents of your choice, at a license fee of 20,000$ / CPU-sized-die. 2: (Declare bankruptcy), sell the "asset" of being allowed to use the ISA, but not the "liability" of having to pay any fees. In other words, it would make literally all contracts meaningless, since you're only ever one (shell) company restructuring away from keeping only the parts of the contract you want, and discarding any obligations.
  - smnrchrds 4y ago
    This doesn't happen between corporations because they are powerful and savvy. All the terms of a contract are reviewed in detail by the lawyers. Objectionable terms are negotiated and changed. The same is true for wealthy directors and actors. But how much power does an individual have when signing a contract with a media giant? The contracts are probably "take it or leave it". You may not be able to afford a lawyer to review the contract in detail and if you do and they flag something, you cannot make Disney change the term.
    - car_analogy 4y ago
      Disney isn't arguing that there is a clause in these specific contracts that allows them to split liabilities and assets. They're arguing that they can do so generically, to any contract. So being a big corporation with lots of lawyers wouldn't help - no matter what clauses they insert in a contract, they can be discarded as "liabilities".
      - 4y ago
polotics 4y ago
Holy mother of Mickey Mouse I had no idea. Cancelling the Disney+ subscription now. Bootleg contents here we go.
- ourmandave 4y ago
  Bootleg contents here we go. That's not how Pay It Forward is supposed to work. =(
  - egypturnash 4y ago
    Steal It Forwards!
  - Brian_K_White 4y ago
    It doesn't hurt the creators, and does hurt Disney. It passes my morality sniff test.
- javajosh 4y ago
  There is another option: buy used media. People are dumping DVDs and Blu-rays for nothing, so it costs very little to build up a library legitimately and without any ambiguity about ownership, with the upside you can watch without internet or a smart tv! Public libraries, good will, even pawn shops will sell you dvds for $1 and blu rays for $3. Or, perhaps even better, stop watching mass media lowest common denominator crap and read a good novel. Strongly recommend Paulo Baucalupi's Windup Girl, or Martha Wells' Murderbot Diaries. Or for something political and uplifting, Meachem's "The Soul of America".
  - ethbr0 4y ago
    Windup Girl isn't uplifting? (I kid. Somewhat. I should read more solarpunk)
    - javajosh 4y ago
      > Windup Girl isn't uplifting? Well, given the degree to which humanity fucked up the world in the story, I'd say its not uplifting. It is uplifting compared to The Road, or On The Beach - but what isn't? (The energy storage breakthrough subplot has real utopian potential, actually.)
ZeroGravitas 4y ago
To be honest, I find it hard to be sympathetic to authors or other royalty paid workers collectively, since they are often complicit in creating this situation, see Sonny Bono Copyright Extension Act. It's similar to all the BS about patents that focus on the little inventor. I'm much more interested in a) popular culture not being owned and monopolised by anyone, including the original author(s) b) giant corporations abusing laws generally Having said that, Cory Doctorow is usually right about most things. I just find it hard to get excited about George R Martin getting his copyright back so he can sell it again.
- bryanrasmussen 4y ago
  >I find it hard to be sympathetic to authors or other royalty paid workers collectively, First off it's a little messed up to not care if people get paid for their work, second you say you're concerned with >giant corporations abusing laws generally which is often the cause and in this case exactly the cause of the royalty paid workers not getting paid. third, I often encounter variations of this attitude at HN which, considering that the mean wage of authors and writers https://www.bls.gov/ooh/media-and-communication/writers-and-authors.htm https://www.bls.gov/ooh/media-and-communication/writers-and-... is $69,510 annually, and considering that many of the people on HN earn significantly more than that (I definitely do) seems especially gauche. Now I don't know how much you earn per year, but if you are earning above that maybe it's messed up to think the people earning less than you should earn even less. >I just find it hard to get excited about George R Martin getting his copyright back so he can sell it again. argument by outlier isn't that great, but it should also be noted that writers and authors are more like entrepreneurs in how they create and get paid for creation, so maybe it is fair that some people who take risks earn more than others when those risks succeed.
  - ZeroGravitas 4y ago
    They're not being paid for their work, they're collecting royalty payments based on a government granted copyright monopoly. Having a conversation about how that government intervention could be altered to make society better is something I'm here for. Discussing how it can be tilted more towards the people taxing the general population, and so directly fund the people that even this article thinks are the bad guys I'm less interested in. Having said that, copyright termination is similar to what I propose to fix patents. Any inventor should be able to re-auction their patent after 12-years to the highest bidder. It would immediately become clear that this would be writing a blank cheque and people would avoid using any patented work and we can move on with our lives in a more efficient post-patent era. At the moment only a complex game of legal brinkmanship between corporations keeps this system stable.
cowpig 4y ago
Anecdotal, but a friend of mine who wrote for Marvel comics in the 80s and 90s told me that she (and all the other Marvel writers) has a few % royalties for the characters and stories they wrote, and that neither she nor her peers from back then have received anything after some corporate restructuring that happened before the Disney days (I think they declared bankruptcy to get out of those)?
tehwebguy 4y ago
Awesome reminder that if you steal a soda from Disney World the police will enforce the law (with extreme violence if they want) but if Disney steals from you no one will enforce the law.
- sandworm101 4y ago
  Physical theft from a store and failure to address contractual obligations are totally different things. This is purely a contract dispute. There is no criminality here. Reneging on a debt is not theft, theoretically because the two parties at some level consented to the relationship. There is no concept of consent when discussing physical theft, hence the criminality. I don't expect the cops to arrest Amazon when they fail to deliver what I ordered.
  - mikkergp 4y ago
    Why is theft from a store stealing and not withholding payment? It would be one thing if I stole money from the cash register, but if I took an item the store had for sale, the store consented for people to take items out of the store in exchange for payment, I did what the store consented to do, I just hadn’t completed my part. Point is, I’m not arguing with your legal argument but from a moral perspective, the law seems (in)conveniently bent towards supporting institutions and not people. If Amazon kept your money and didn’t deliver a product, then yes, they should be held criminally responsible.
  - rndgermandude 4y ago
    > There is no criminality here. Fraud is a crime. Criminal copyright infringement is a crime. If amazon were to take your money and not deliver, and it can be proven they did so intentionally, never intended to deliver, they would face criminal charges for fraud. If Disney, as is alleged here, is "willfully and for purposes of commercial advantage or private financial gain"[0] using other people's works, that's criminal copyright infringement. They say they have the right to exploit these works commercially through contracts, but at the same time say the contracts do not apply to them. So either the contracts do not apply, in which case they have no right to commercial exploitation and therefore commit criminal copyright infringement, or the contracts do apply and they are criminally defrauding the authors. [0] https://www.law.cornell.edu/uscode/text/17/506 https://www.law.cornell.edu/uscode/text/17/506
MereInterest 4y ago
Even if I try to understand Disney's argument in the most favorable light possible, I cannot follow it. Thinking through different situations, I can't come up with any that make sense to me. * If I consider "We acquire assets not liabilities" in a bankruptcy court, that could make sense to me, because that is the context in which assets are pooled together to cover the highest priority liabilities while voiding all other liabilities. This clearly isn't the case because the Star Wars assets were not acquired through a bankruptcy court. * If I consider it as a purchase of assets from another company, then the liabilities stay with the original company. This clearly isn't the case because Lucasfilm no longer exists as an independent company. * If I consider it as a purchase of assets, followed by the original company declaring bankruptcy, that could result in assets being purchased with liabilities no longer existing. This clearly isn't the case, because Lucasfilm was acquired and merged with Disney, and never itself declared bankruptcy. I can't come up with any explanation in which Disney's defense makes any bit of sense whatsoever.
- kcplate 4y ago
  Couple of companies I have worked for held their real estate properties in a sub-companies which allowed them to carve off assets as needed. All these companies owned was the asset themselves and liabilities directly associated with the asset. I can see how just selling the films and the film characters could be similar. Maybe it explains Disney declaration of the EU being no longer canon? I am not familiar enough to know where this writer’s content sits. If it’s considered EU, it’s possible that they don’t hold that liability.
  - leetcrew 4y ago
    I don't think canon status has anything to do with legal obligations. at least I really hope it doesn't; that would be a crazy legal mechanism. the book in question would probably be considered canon anyway. novelizations of the films are only one step below the films themselves in canon status.
    - sandworm101 4y ago
RcouF1uZ4gsC 4y ago
> "we only acquire assets, not liabilities" Maybe Florida could use that line as it annexes the Reddy Creek Improvement district into Orange County.
TheMagicHorsey 4y ago
It seems to me, if you grant a copyright contingent on some royalty, if the royalty is not forthcoming, then the copyright must revert to the author ... is that not true? And if that is not happening, then it means the author never held the copyright, but rather had a royalty that was based on some other mechanism. If the author did not have copyright, it means they must have been doing their work as a work for hire. This does not change the fact that Disney is a bunch of scum bags.
- gnud 4y ago
  Really not a lawyer, and not in the US, so not sure I understand the 'work for hire'. But 'work for hire' requires some sort of employment contract, surely? And the pay was part of that contract? So if Disney doesn't uphold the contract, doesn't that mean it wasn't a work for hire, and therefore the copyright belongs to the author?
xbar 4y ago
"For 40 years, corporations benefited from the Reagan-era doctrine of "consumer welfare," an antitrust theory that embraces monopoly as "efficient" and explicitly excludes the effect of monopoly on worker pay from consideration." Don't forget to also thank Diane Feinstein for her roles as a life-long Disney shill and a staunch defender of the unholy mess that is copyright law in defense of big media. Consider this strange comment for a US Senator to make about a corporate CEO change: https://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=19AB764A-49FF-4FE8-9B7E-AF9F8B1BAF18 https://www.feinstein.senate.gov/public/index.cfm/press-rele...
slavboj 4y ago
The legal term of art for this is "fraudulent conveyance". "We strip off all assets and then declare bankruptcy" has been a known failure mode for like 500 years. cf, https://en.wikipedia.org/wiki/Fraudulent_Conveyances_Act_1571 https://en.wikipedia.org/wiki/Fraudulent_Conveyances_Act_157...
- jon_richards 4y ago
  I’ve wondered if “stripping assets” should require a sort of liability insurance. In the simple case: a company requires 5m in liability insurance to give out 5m in dividends. If the company later declares bankruptcy, any creditors/regulatory agencies can go after the insurance company.
  - missedthecue 4y ago
    Given the high bankruptcy rate of newer businesses, I'm not even sure how insurance could be feasible unless the policies cost millions per year. Which is a non-starter obviously.
- rdtwo 4y ago
  Also known as private equity playbook
daniel-cussen 4y ago
So I was working at this place...at one point the boss asked my why I'm leaving right on time every single time. Very direct. Meaning why I don't let him steal from me. Not basically, literally. I said, "I show up on time, so I leave on time too." I was the only person in the company who arrived before the clock, without fail, including the boss, including everybody. It was a weird thing, I got a ride and that meant I showed up early, saved time. So I just stood there waiting for the work to start in any capacity, for the second person to arrive. On standby. And I did in fact allow a little wage theft, don't even consider it in those terms, the standby and in addition the ten minutes before the shift started where I'd already be helping the business start its day, unlocking places and readying stuff, undeniably still work. A little unpaid overtime before is different than after. But when the shift ends, the boss might get an extra 30 seconds today, or 10 seconds less tomorrow, but there is no mercy. If the boss starts a fire to try to get me to stay I will call the fire department on my way home. The clock is the boss's boss.
nobodyandproud 4y ago
Meanwhile all the authors and artists were shaming the individual pirates. Deceived they were, by Sauron/Disney.
- SamoyedFurFluff 4y ago
  Individually pirating from authors when you can afford the book is indeed something to at least look on suspicion if not outright critique for the consequences of consuming a work and not paying for it in any way. Publishing is cutthroat and lack of sales, especially new in a series or authors career, is basically used as justification to ditch the author and ditch the book series… in every way one is consuming the authors work as a fan and also working against the author producing in the future. At the very least why not become a reviewer, that way you can receive advanced copies and in return write a review to generate hype for the book?
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fenomas 4y ago
I can't wrap my head around this "the assets but not the liabilities" argument. Surely the asset in question here is "the right to publish a work in exchange for paying royalties", no? The right to publish without paying anything can't be something Disney acquired, because Lucasfilm never had that right to begin with. It's as absurd buying a company and saying you acquired the asset of the employee work contracts, but not the liability of having to pay them salaries. How can anyone say this stuff with a straight face?
- maxerickson 4y ago
  The payments might not be tied to the rights. (I would expect the initial contract to give Lucas as much of the rights as would have been possible at the time)
- linspace 4y ago
  > I can't wrap my head around this "the assets but not the liabilities" argument Because it's impossible. Take a loan, acquire the money and not the debt, repeat. It's a mental bomb planted by corporate drones to melt your mind. Because if Chewbacca is not a wookie why is he living in Endor? It makes no sense.
- rtpg 4y ago
  The problem with legal discussions on HN is that for every strained metaphor, you can make one in the other direction. I buy some milk from Albertson's. Am I now responsible for their corporate debt? I buy _all of the milk_ from Albertson's. Am I now responsible? I buy all the milk, the veggies, the building that holds them, the delivery trucks. Am I now responsible? The point is that it isn't patently absurd in the same way that the opposite isn't patently absurd. I would imagine that Lucas owned the books, even if somebody else wrote them. And there is a royalty agreement, of course. But there is a possible context-free explanation that is at least logically consistent. The way the company buyout example works is that the company sells all their assets, then you have litigation/bankruptcy proceedings that use the money to make employees and owners as whole as possible. Employee work products are owned by the company, there isn't some unbreakable link there by default (beyond some natural rights about being able to say you are the author). But in that model, of course, if there are a lot of useful assets, a lot of money is then in the bank to pay out the employees!
BXLE_1-1-BitIs1 4y ago
Wouldn't it be neat if programmers could take back the copyright on their code?
advisedwang 4y ago
It sounds like SFWA is doubling down on as PR based strategy for making Disney pay up. It hasn't worked so far. Doctorow mentions labor organizing - perhaps a page from labor is warranted and writers should strike against Disney.
deleted 4y ago
[deleted]

232 points by gryson 4y ago

When I look at anti Disney art like in this article, I find it ineffective and just weird how they still use Mickey Mouse. Sure he’s still the mascot like Mario to Nintendo. But when you look at what Disney really is now, he doesn’t represent a whole lot. I don’t think a lot of kids even know what he is. It’s like using Woody Woodpecker to represent Comcast.

isitmadeofglass 4y ago

Seems like this is breach of contract. What’s preventing the authors from selling the creative works to Netflix? If Disney tries to pull them into court, they can’t really show a contract where they’ve kept up their obligation to the creator.

SamoyedFurFluff 4y ago
Disney is relying on the fact these people don’t have resources to handle legal threats. The person who raised the alarm first had to reach out to writer guild type organizations, because he needed his money to pay for his cancer treatment. Also, many of these authors are writing under existing franchises. (The kickoff incident is a bestselling author of Star Wars novels.) They couldn’t sell their work elsewhere even if they wanted to, because the franchise they wrote for is still owned by Disney and the organization that would buy that work would need to negotiate for some kind of licensing agreement.
- teddyh 4y ago
  Also, Netflix probably don’t want to give its own authors any ideas of expectic fair treatment.
  - andrew_ 4y ago
    That seems like rather a baseless assumption without supporting proof.
  - Broken_Hippo 4y ago
    The entire creative industry is full of this stuff, and generally folks know they aren't going to get fair treatment. And it has been a problem for decades. I mostly know this stuff because I looked. I had dreams of doing animation or something like that as a child/teen. That was back in the 90s, and the stories about bad treatment have continued to current times. Don't get me wrong, at the same time there are folks out there working on this stuff that are living their dream despite it all, but it definitely deterred me. I can do art without it making money with it, after all.
SkeuomorphicBee 4y ago
One important detail: the works in question where written using Disney (Lucas Films,Marvel, ...) characters, so even if the original contract is void, the authors can never own the full rights to sell it to Netflix.
kjs3 4y ago
"Breach of contract" by one party doesn't mean a court will allow the other party gets to do whatever they want. But more practically, if the creator sells the work to Netflix, they're going to get sued, and they would then be on the hook (legally, financially and reputational) for proving in court 1) contract was breached, and 2) that gives them ownership of the work product that allows them to sell to another party. Against Disney's warchest.

invalidname 4y ago

This should be used by anyone who is sued by Disney for copyright infringement. Why should I respect the copyright of your corporation if you don't play by the same rules?

delusional 4y ago
"You're a hypocrite" doesn't strike my as a particularly strong defense. I understand the moral impetus of your argument, I just don't think it's very good legal advice.
- invalidname 4y ago
  Totally not a lawyer. But this could be very damaging to some copyright cases that aren't clean cut. At least here (not from the US) if you can show that the plaintiff doesn't respect the law they're asking to uphold, the judge has some leeway. Since they're a global company and very litigious, this might prove useful to some lawyers.
  - wonks 4y ago
    Interesting! If you don't mind me asking, what country are you in? I'm asking because I'm an American and I don't think I've ever heard of this.
    - techsupporter 4y ago
      I think the person you're replying to was referring to the "clean hands doctrine". In common law, one of the Maxims of Equity--or principles by which courts try to rule--is that "he who comes into equity must come with clean hands." An incredibly simplified overview of this doctrine is that a person cannot claim equitable relief (that is, win a civil suit on the basis of equity) in a situation where the person has also acted wrongly or unfaithfully. A common example is that a landlord may not pursue eviction of a tenant if the landlord has violated the tenant's rights. The clean hands doctrine is very nebulous and since I'm not a lawyer I don't claim to know all of the twists and turns. In my reading, the doctrine does not mean someone must be "completely pure" in an area in order to prevail. Generally there has to be a relationship between the thing the person wishes to sue for or defend against and their own actions. So while Disney might be abusing copyright in other areas, the doctrine (probably?) would not stop them from claiming copyright privilege in unrelated suits, such as against someone selling derivative works.

senko 4y ago

The copyright law, as it currently exists in the US[0], is an unholy mess created by dozens of interest groups with more or less lobbying power. It has nothing whatsoever to do with promoting creativity, arts, or making sure artists can live off their work. It has everything to do with how much muscle somebody had in negotiations and lobbying. If you have doubts, read "How to suceed in the music business" and weep. (Film is worse, and for books, just read the OP) [0] And most other countries I'm aware of, to a different/lesser extent.

sam_goody 4y ago
The patent law is even worse. Anything that requires courts will favor the large corps that have the money to spend endlessly on lawyers. Patents keep the new guys out of the game. Say a big company steals a product from a startup, guess who cannot afford the legal battle? If threatened, the big guys claim that ten of their not-quite-related patents were infringed by startup, and counter-sue. From first hand experience, the patent keeps ideas out of use (all patent lawyers recommend submarine patenting any new ideas instead of developing them), hurt small companies and inventors, and are huge bludgeon against anyone that the big cos want to hit.
sschueller 4y ago
The US is trying everything to force their copyrights down the rest of the world's throat as well. Switzerland was added to the US copyright watch list[1] because its copyright laws are a bit less draconian. [1] https://www.swissinfo.ch/eng/online-laxity_us-puts-switzerland-on-copyright-watch-list/42119418 https://www.swissinfo.ch/eng/online-laxity_us-puts-switzerla...

rtpg 4y ago

So the “we acquire assets not liabilities” argument forwarded by Disney… I have heard of many acquisitions that follow this model. Any lawyer/lawyer-adjacent people have any thoughts about the validity? It does feel pretty uncontroversial that Disney owns the book contents but is it obvious that the royalty payment scheme must transfer with that? But the opposite seems odd as well…

car_analogy 4y ago
It is utter nonsense, let me show why: 1: Acquire a license for ARM/x86/ISA and patents of your choice, at a license fee of 20,000$ / CPU-sized-die. 2: (Declare bankruptcy), sell the "asset" of being allowed to use the ISA, but not the "liability" of having to pay any fees. In other words, it would make literally all contracts meaningless, since you're only ever one (shell) company restructuring away from keeping only the parts of the contract you want, and discarding any obligations.
- smnrchrds 4y ago
  This doesn't happen between corporations because they are powerful and savvy. All the terms of a contract are reviewed in detail by the lawyers. Objectionable terms are negotiated and changed. The same is true for wealthy directors and actors. But how much power does an individual have when signing a contract with a media giant? The contracts are probably "take it or leave it". You may not be able to afford a lawyer to review the contract in detail and if you do and they flag something, you cannot make Disney change the term.
  - car_analogy 4y ago
    Disney isn't arguing that there is a clause in these specific contracts that allows them to split liabilities and assets. They're arguing that they can do so generically, to any contract. So being a big corporation with lots of lawyers wouldn't help - no matter what clauses they insert in a contract, they can be discarded as "liabilities".
    - 4y ago

polotics 4y ago

Holy mother of Mickey Mouse I had no idea. Cancelling the Disney+ subscription now. Bootleg contents here we go.

ourmandave 4y ago
Bootleg contents here we go. That's not how Pay It Forward is supposed to work. =(
- egypturnash 4y ago
  Steal It Forwards!
- Brian_K_White 4y ago
  It doesn't hurt the creators, and does hurt Disney. It passes my morality sniff test.
javajosh 4y ago
There is another option: buy used media. People are dumping DVDs and Blu-rays for nothing, so it costs very little to build up a library legitimately and without any ambiguity about ownership, with the upside you can watch without internet or a smart tv! Public libraries, good will, even pawn shops will sell you dvds for $1 and blu rays for $3. Or, perhaps even better, stop watching mass media lowest common denominator crap and read a good novel. Strongly recommend Paulo Baucalupi's Windup Girl, or Martha Wells' Murderbot Diaries. Or for something political and uplifting, Meachem's "The Soul of America".
- ethbr0 4y ago
  Windup Girl isn't uplifting? (I kid. Somewhat. I should read more solarpunk)
  - javajosh 4y ago
    > Windup Girl isn't uplifting? Well, given the degree to which humanity fucked up the world in the story, I'd say its not uplifting. It is uplifting compared to The Road, or On The Beach - but what isn't? (The energy storage breakthrough subplot has real utopian potential, actually.)

ZeroGravitas 4y ago

To be honest, I find it hard to be sympathetic to authors or other royalty paid workers collectively, since they are often complicit in creating this situation, see Sonny Bono Copyright Extension Act. It's similar to all the BS about patents that focus on the little inventor. I'm much more interested in a) popular culture not being owned and monopolised by anyone, including the original author(s) b) giant corporations abusing laws generally Having said that, Cory Doctorow is usually right about most things. I just find it hard to get excited about George R Martin getting his copyright back so he can sell it again.

bryanrasmussen 4y ago
>I find it hard to be sympathetic to authors or other royalty paid workers collectively, First off it's a little messed up to not care if people get paid for their work, second you say you're concerned with >giant corporations abusing laws generally which is often the cause and in this case exactly the cause of the royalty paid workers not getting paid. third, I often encounter variations of this attitude at HN which, considering that the mean wage of authors and writers https://www.bls.gov/ooh/media-and-communication/writers-and-authors.htm https://www.bls.gov/ooh/media-and-communication/writers-and-... is $69,510 annually, and considering that many of the people on HN earn significantly more than that (I definitely do) seems especially gauche. Now I don't know how much you earn per year, but if you are earning above that maybe it's messed up to think the people earning less than you should earn even less. >I just find it hard to get excited about George R Martin getting his copyright back so he can sell it again. argument by outlier isn't that great, but it should also be noted that writers and authors are more like entrepreneurs in how they create and get paid for creation, so maybe it is fair that some people who take risks earn more than others when those risks succeed.
- ZeroGravitas 4y ago
  They're not being paid for their work, they're collecting royalty payments based on a government granted copyright monopoly. Having a conversation about how that government intervention could be altered to make society better is something I'm here for. Discussing how it can be tilted more towards the people taxing the general population, and so directly fund the people that even this article thinks are the bad guys I'm less interested in. Having said that, copyright termination is similar to what I propose to fix patents. Any inventor should be able to re-auction their patent after 12-years to the highest bidder. It would immediately become clear that this would be writing a blank cheque and people would avoid using any patented work and we can move on with our lives in a more efficient post-patent era. At the moment only a complex game of legal brinkmanship between corporations keeps this system stable.

cowpig 4y ago

Anecdotal, but a friend of mine who wrote for Marvel comics in the 80s and 90s told me that she (and all the other Marvel writers) has a few % royalties for the characters and stories they wrote, and that neither she nor her peers from back then have received anything after some corporate restructuring that happened before the Disney days (I think they declared bankruptcy to get out of those)?

tehwebguy 4y ago

Awesome reminder that if you steal a soda from Disney World the police will enforce the law (with extreme violence if they want) but if Disney steals from you no one will enforce the law.

sandworm101 4y ago
Physical theft from a store and failure to address contractual obligations are totally different things. This is purely a contract dispute. There is no criminality here. Reneging on a debt is not theft, theoretically because the two parties at some level consented to the relationship. There is no concept of consent when discussing physical theft, hence the criminality. I don't expect the cops to arrest Amazon when they fail to deliver what I ordered.
- mikkergp 4y ago
  Why is theft from a store stealing and not withholding payment? It would be one thing if I stole money from the cash register, but if I took an item the store had for sale, the store consented for people to take items out of the store in exchange for payment, I did what the store consented to do, I just hadn’t completed my part. Point is, I’m not arguing with your legal argument but from a moral perspective, the law seems (in)conveniently bent towards supporting institutions and not people. If Amazon kept your money and didn’t deliver a product, then yes, they should be held criminally responsible.
- rndgermandude 4y ago
  > There is no criminality here. Fraud is a crime. Criminal copyright infringement is a crime. If amazon were to take your money and not deliver, and it can be proven they did so intentionally, never intended to deliver, they would face criminal charges for fraud. If Disney, as is alleged here, is "willfully and for purposes of commercial advantage or private financial gain"[0] using other people's works, that's criminal copyright infringement. They say they have the right to exploit these works commercially through contracts, but at the same time say the contracts do not apply to them. So either the contracts do not apply, in which case they have no right to commercial exploitation and therefore commit criminal copyright infringement, or the contracts do apply and they are criminally defrauding the authors. [0] https://www.law.cornell.edu/uscode/text/17/506 https://www.law.cornell.edu/uscode/text/17/506

MereInterest 4y ago

Even if I try to understand Disney's argument in the most favorable light possible, I cannot follow it. Thinking through different situations, I can't come up with any that make sense to me. * If I consider "We acquire assets not liabilities" in a bankruptcy court, that could make sense to me, because that is the context in which assets are pooled together to cover the highest priority liabilities while voiding all other liabilities. This clearly isn't the case because the Star Wars assets were not acquired through a bankruptcy court. * If I consider it as a purchase of assets from another company, then the liabilities stay with the original company. This clearly isn't the case because Lucasfilm no longer exists as an independent company. * If I consider it as a purchase of assets, followed by the original company declaring bankruptcy, that could result in assets being purchased with liabilities no longer existing. This clearly isn't the case, because Lucasfilm was acquired and merged with Disney, and never itself declared bankruptcy. I can't come up with any explanation in which Disney's defense makes any bit of sense whatsoever.

kcplate 4y ago
Couple of companies I have worked for held their real estate properties in a sub-companies which allowed them to carve off assets as needed. All these companies owned was the asset themselves and liabilities directly associated with the asset. I can see how just selling the films and the film characters could be similar. Maybe it explains Disney declaration of the EU being no longer canon? I am not familiar enough to know where this writer’s content sits. If it’s considered EU, it’s possible that they don’t hold that liability.
- leetcrew 4y ago
  I don't think canon status has anything to do with legal obligations. at least I really hope it doesn't; that would be a crazy legal mechanism. the book in question would probably be considered canon anyway. novelizations of the films are only one step below the films themselves in canon status.
  - sandworm101 4y ago

RcouF1uZ4gsC 4y ago

> "we only acquire assets, not liabilities" Maybe Florida could use that line as it annexes the Reddy Creek Improvement district into Orange County.

TheMagicHorsey 4y ago

It seems to me, if you grant a copyright contingent on some royalty, if the royalty is not forthcoming, then the copyright must revert to the author ... is that not true? And if that is not happening, then it means the author never held the copyright, but rather had a royalty that was based on some other mechanism. If the author did not have copyright, it means they must have been doing their work as a work for hire. This does not change the fact that Disney is a bunch of scum bags.

gnud 4y ago
Really not a lawyer, and not in the US, so not sure I understand the 'work for hire'. But 'work for hire' requires some sort of employment contract, surely? And the pay was part of that contract? So if Disney doesn't uphold the contract, doesn't that mean it wasn't a work for hire, and therefore the copyright belongs to the author?

xbar 4y ago

"For 40 years, corporations benefited from the Reagan-era doctrine of "consumer welfare," an antitrust theory that embraces monopoly as "efficient" and explicitly excludes the effect of monopoly on worker pay from consideration." Don't forget to also thank Diane Feinstein for her roles as a life-long Disney shill and a staunch defender of the unholy mess that is copyright law in defense of big media. Consider this strange comment for a US Senator to make about a corporate CEO change: https://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=19AB764A-49FF-4FE8-9B7E-AF9F8B1BAF18 https://www.feinstein.senate.gov/public/index.cfm/press-rele...

slavboj 4y ago

The legal term of art for this is "fraudulent conveyance". "We strip off all assets and then declare bankruptcy" has been a known failure mode for like 500 years. cf, https://en.wikipedia.org/wiki/Fraudulent_Conveyances_Act_1571 https://en.wikipedia.org/wiki/Fraudulent_Conveyances_Act_157...

jon_richards 4y ago
I’ve wondered if “stripping assets” should require a sort of liability insurance. In the simple case: a company requires 5m in liability insurance to give out 5m in dividends. If the company later declares bankruptcy, any creditors/regulatory agencies can go after the insurance company.
- missedthecue 4y ago
  Given the high bankruptcy rate of newer businesses, I'm not even sure how insurance could be feasible unless the policies cost millions per year. Which is a non-starter obviously.
rdtwo 4y ago
Also known as private equity playbook

daniel-cussen 4y ago

So I was working at this place...at one point the boss asked my why I'm leaving right on time every single time. Very direct. Meaning why I don't let him steal from me. Not basically, literally. I said, "I show up on time, so I leave on time too." I was the only person in the company who arrived before the clock, without fail, including the boss, including everybody. It was a weird thing, I got a ride and that meant I showed up early, saved time. So I just stood there waiting for the work to start in any capacity, for the second person to arrive. On standby. And I did in fact allow a little wage theft, don't even consider it in those terms, the standby and in addition the ten minutes before the shift started where I'd already be helping the business start its day, unlocking places and readying stuff, undeniably still work. A little unpaid overtime before is different than after. But when the shift ends, the boss might get an extra 30 seconds today, or 10 seconds less tomorrow, but there is no mercy. If the boss starts a fire to try to get me to stay I will call the fire department on my way home. The clock is the boss's boss.

nobodyandproud 4y ago

Meanwhile all the authors and artists were shaming the individual pirates. Deceived they were, by Sauron/Disney.

SamoyedFurFluff 4y ago
Individually pirating from authors when you can afford the book is indeed something to at least look on suspicion if not outright critique for the consequences of consuming a work and not paying for it in any way. Publishing is cutthroat and lack of sales, especially new in a series or authors career, is basically used as justification to ditch the author and ditch the book series… in every way one is consuming the authors work as a fan and also working against the author producing in the future. At the very least why not become a reviewer, that way you can receive advanced copies and in return write a review to generate hype for the book?

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fenomas 4y ago

I can't wrap my head around this "the assets but not the liabilities" argument. Surely the asset in question here is "the right to publish a work in exchange for paying royalties", no? The right to publish without paying anything can't be something Disney acquired, because Lucasfilm never had that right to begin with. It's as absurd buying a company and saying you acquired the asset of the employee work contracts, but not the liability of having to pay them salaries. How can anyone say this stuff with a straight face?

maxerickson 4y ago
The payments might not be tied to the rights. (I would expect the initial contract to give Lucas as much of the rights as would have been possible at the time)
linspace 4y ago
> I can't wrap my head around this "the assets but not the liabilities" argument Because it's impossible. Take a loan, acquire the money and not the debt, repeat. It's a mental bomb planted by corporate drones to melt your mind. Because if Chewbacca is not a wookie why is he living in Endor? It makes no sense.
rtpg 4y ago
The problem with legal discussions on HN is that for every strained metaphor, you can make one in the other direction. I buy some milk from Albertson's. Am I now responsible for their corporate debt? I buy _all of the milk_ from Albertson's. Am I now responsible? I buy all the milk, the veggies, the building that holds them, the delivery trucks. Am I now responsible? The point is that it isn't patently absurd in the same way that the opposite isn't patently absurd. I would imagine that Lucas owned the books, even if somebody else wrote them. And there is a royalty agreement, of course. But there is a possible context-free explanation that is at least logically consistent. The way the company buyout example works is that the company sells all their assets, then you have litigation/bankruptcy proceedings that use the money to make employees and owners as whole as possible. Employee work products are owned by the company, there isn't some unbreakable link there by default (beyond some natural rights about being able to say you are the author). But in that model, of course, if there are a lot of useful assets, a lot of money is then in the bank to pay out the employees!

BXLE_1-1-BitIs1 4y ago

Wouldn't it be neat if programmers could take back the copyright on their code?

advisedwang 4y ago

It sounds like SFWA is doubling down on as PR based strategy for making Disney pay up. It hasn't worked so far. Doctorow mentions labor organizing - perhaps a page from labor is warranted and writers should strike against Disney.

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