You really wanted to like GoldieBlox. They are the children’s toy start up with the avowed goal of empowering young girls to engage in tech. Then GoldieBlox used the Beastie Boys’ song “Girls” in its promotional advertisement, claiming Fair Use. Then GoldieBlox sued the Beastie Boys to allow use of the song. Then it turned out that GoldieBlox had done the same thing to Queen with its anthem “We Are The Champions.”
Here’s where it gets even harder to extend GoldieBlox the benefit of the doubt: For the past month GoldieBlox has run a media campaign that turns the Beasties into the bad guys with the storyline, “powerful musicians target a startup with a mission.” Left unsaid is the fact that GoldieBlox used “Girls” without a license and sued the artists preemptively. When all else failed, the Beastie Boys countersued GoldieBlox.
In the latest chapter of this Dickensian tale, GoldieBlox hires a new firm Durie Tangri to represent its interests. Durie Tangri is the same firm that successfully represented Google in the Google Books case. In that case Durie Tangri successfully argued for Google that Fair Use was the controlling principle that enabled the company to continue its book copying efforts. A significant achievement in that case was Durie Tangri’s successful effort to eliminate the authors as a “class.” Authors were then left to fend for themselves against the deep-pocketed search engine giant.
The first thing that Durie Tangri did in the GoldieBlox case was to dismiss its claims against Island Def Jam, Sony/ATV and Universal Music Publishing. That pretty much leaves the Beastie Boys as the sole defendants in the case. In a terrific post on his Music-Technology-Policy blog Chris Castle asks whether Durie Tangri is about to eliminate a strategy similar to the one applied in Google here. Is the firm eliminating the deep corporate pockets from the suit to go after the artists, the Beastie Boys?
Castle then goes on to speculate about who might be underwriting GoldieBlox’s litigation efforts. Typically a startup goes to great lengths to avoid costly litigation. In this case does GoldieBlox really want to spend its precious startup capital to sue in furtherance of a marketing campaign that has already made its marked and arguably outlived its usefulness? There’s little to be gained for GoldieBlox as a company.
The outcome of this case, to the extent that it defines the interpretation of Fair Use in the digital realm, is of interest to numerous deep-pocketed commercial interests. Google, for example, comes to mind. Is it possible that Google is underwriting the GoldieBlox campaign to support its own interest. It does have the ring of a conspiracy theory to it. Yet, Castle makes a convincing case that this could be what’s afoot.