Earlier this year, we wrote about an interesting lawsuit filed against Warner/Chappell Music, claiming that the song Happy Birthday is in the public domain, and Warner owes millions in fraudulently collected licenses. As you may or may not know, Warner has some rather dubious claims over the copyright to the song, and despite pretty thorough research showing that the song is almost certainly in the public domain, it's also the most profitable song in history, earning millions of dollars every year for Warner. So with this class action lawsuit filed against it, you didn't think that Warner was going to give up easily, did you?

Of course its initial response ignores pretty much all of the evidence concerning why there is no actual copyright on the song, but instead focuses on some technicalities to try to dismiss most of the non-copyright claims and then limit the potential liability by arguing that the statute of limitations only goes back three years. It does promise to have a more complete response to the rather compelling evidence that the entire copyright is completely bogus. However, it seems that even the arguments it's making to limit the lawsuit here are suspect. Oddly, Warner appears to be flipping the usual arguments on their head.

Copyright preemption and the statute of limitations generally are used when it comes to infringement claims, rather than totally bogus claims of holding a copyright there is no copyright on (i.e., copyfraud). As such, it seems there's a decent argument that Warner's arguments shouldn't apply here. Preemption is built around the idea that federal copyright law preempts any attempt to do end runs around federal law by throwing in some questionable state copyright claims. But that's not the situation here. Here, the state claims are not about state copyright claims, but rather things like fraud and unfair competition that come about due to flat out lying about holding a copyright for something that's in the public domain. That's not trying to "preempt" federal copyright law, but rather to argue that lying about holding a copyright and shaking down all sorts of people for singing Happy Birthday is a form of fraud.

As for the statute of limitations claim, again the statute of limitations is generally focused on the time frame of some infringement, rather than the timeframe of non-infringement which people only later discovered was licensed under fraudulent claims of potential infringement. Also, the case law on statute of limitations claims in copyright is a complete mess at times, and it sometimes depends on when the plaintiff discovered the violation. So, while Warner may be able to knock out a few minor issues with this stance, it's certainly not a slam dunk, and they're still facing the main issue, which is the overwhelming and somewhat damning evidence that their entire claim to holding the copyright is a complete and total sham - a sham used to shakedown films, TV programs, restaurants and venues for millions of dollars.

And, of course, there's just the general sentiment of the public, who seem to recognize, implicitly, that claiming a copyright on a song as simple and iconic as Happy Birthday (which has been around for well over a century, long after any copyright should be expired) is somewhere up there on the scale of evil with kicking kittens for sport.