Princeton computer science professor Edward Felten has posted on his Web site a summary of a study he and Princeton student Sauhard Sahi conducted involving BitTorrent, the peer-to-peer network protocol. Felten and Sahi summarize their study as an investigation into what types of files are available on the system:

BitTorrent is popular because it lets anyone distribute large files at low cost. Which kinds of files are available on BitTorrent? Sauhard Sahi, a Princeton senior, decided to find out. Sauhard’s independent work last semester, under my supervision, set out to measure what was available on BitTorrent. This post, summarizing his results, was co-written by Sauhard and me.

Sahi and Felten chose a random sample of files available “via the trackerless variant of BitTorrent, using the Mainline DHT. The sample comprised 1021 files. He classified the files in the sample by file type, language, and apparent copyright status.” The summary does not clearly identify the time frame (either in length of time, or the time of year) in which Sahi and Felten performed the study.

Summary of the Study Summary

In summary, Sahi and Felten concluded that nearly half the files (46 percent) in the study comprised of non-adult movies and “shows.” (We presume the scholars mean shows — either dramatic serials or game shows — that appear on television.) These category of content would include what the Copyright Act of 1976 defines in Section 101 as “motion pictures” (”Motion pictures are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.”) Adult films and computer games and software each accounted for 14 percent of the total files; music accounted for another 10 percent of the files.

The part of the Sahi-Felten study summary that seemed to garner the most attention was the section entitled “Apparent Copyright Infringement.” Wrote the scholars:

Our final assessment involved determining whether or not each file seemed likely to be copyright-infringing. We classified a file as likely non-infringing if it appeared to be (1) in the public domain, (2) freely available through legitimate channels, or (3) user-generated content. These were judgment calls on our part, based on the contents of the files, together with some external research.

…

Overall, we classified ten of the 1021 files, or approximately 1%, as likely non-infringing, This result should be interpreted with caution, as we may have missed some non-infringing files, and our sample is of files available, not files actually downloaded. Still, the result suggests strongly that copyright infringement is widespread among BitTorrent users.

In other words, the pair have drawn a preliminary conclusion that 99 percent of the files in this BitTorrent study infringed U.S. copyright law.

It is virtually impossible to discuss this study or its conclusion without reviewing the final paper, the data, and the data analysis that lead to the conclusions about “Apparent Copyright Infringement.” We and another reader have requested to review that information. We also specifically asked to see the coding sheets, the variables, and a closer look at the variable operationalizations; upon a second glance at the summary, we also would like to review the study design, particularly its sampling design.

(By the way, none of these requests are abnormal for social science studies. It is possible a reviewer may not request coding sheets, for example, but if coding schema are integral to variable operationalizations, then requesting the coding schema is not abnormal either.)

Our Questions

Still, we present some preliminary comments about the summary, and ask some questions about it. (We presume a forthcoming paper will presents the study, its data, and findings in more detail).

First, we would like to know both the time frame and the time span that the study captured. The time frame would determine time of day and time zone; the time frame would identify whether the study spanned the entire summer, a month, a week, or a day. Both are important in terms of measurement and potential data skew, especially if there is only a single temporal element captured and that temporal element is not compared to a second, third, or fourth temporal element.

Also, we would be interested in knowing whether this study was a longitudinal study, or a snapshot of activity; if it is the latter, both the time frame and time span become much more important.

Second, we hope the final paper identifies why the scholars chose “the trackerless variant of BitTorrent, using the Mainline DHT” as the data source, and what were the reasons for excluding other BitTorrent data sources.

Third, we find the scholars’ operationalization of copyright infringement to be interesting. On this issue, the scholars wrote the following:

Our final assessment involved determining whether or not each file seemed likely to be copyright-infringing. We classified a file as likely non-infringing if it appeared to be (1) in the public domain, (2) freely available through legitimate channels, or (3) user-generated content. These were judgment calls on our part, based on the contents of the files, together with some external research.

Based upon the information in the summary, this operationalization of copyright infringement could be problematic for practical and theoretical reasons because it could skew the findings, or fail to provide proper context. In order to determine why we find this problematic, consider our rationale.

The actual definition of copyright infringement in the Copyright Act of 1976 (Section 501(a)) states the following

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a) … is an infringer of the copyright or right of the author, as the case may be.

Effectively, this means that any time any person other than the copyright owner or its authorized agent invokes or uses any of the exclusive rights of reproduction, derivative work/adaptation, distribution, public performance or public display, that person is infringing per Section 501(a). As we have outlined in our sister publication Core Copyright, this use or invocation occurs every minute, of every hour of every day under the current legal regime.

This finding of infringement, of course, is subject to a raft of limitations or compulsory licenses in Sections 107 through 122. These limitations and licenses may mean that a de facto finding of infringement — which, too, is common and virtually automatic under the current legal regime — ultimately falls away, leaving the alleged infringer without legal liability, for reasons of public or economic policy.

The Importance of Operationalizing Infringement

But let’s return to the finding of infringement using the definition in Section 501(a) using the movies as an example. Since copyright infringement is a strict liability issue (i.e roughly meaning liability without fault), this essentially means that anytime anyone posts a file on a BitTorrent system — even a digital movie or music file ripped from their own collections — there is, arguably, an infringement because

(a) the person who owns the source disc from which the movie or music file was ripped is likely not the person that owns any of the Section 106 exclusive rights in the disc (per Section 202); and
(b) therefore has no authority to distribute that file on a digital network.

(The first sale limitation in Section 109 may or may not apply. We will presume for the sake of this argument that it is inapplicable. We also forestall any discussion of reproducing the movies into a digital format in order to get the digital file onto the BitTorrent network in the first place; that activity — which almost certainly occurs by circumventing a digital copy protection technology — likely would violate the Digital Millennium Copyright Act.)

This means that from a legal standpoint, it is possible that any file on such a distributed peer-to-peer network is an infringement under Section 501(a), regardless of whether or not the person who uploads the file owns the source disc. (Again, an ultimate and determinative finding of liability would be subject to the limitations and compulsory licenses in Sections 107 through 122 of the current Act.)

How does the legal definition of infringement affect the scholars’ operationalization of infringement in their study?

First, it could affect the study in a significant way if it does not take into account a variable for actual ownership of the source material from which the traded digital file was ripped. This matters, in turn, because the first sale doctrine may be an applicable limitation. (Again, more analysis would need to be done, but it’s worth an investigation.)

Second, if you can determine, operationalize, and make a variable for source ownership, then the study can probe deeper into what type of infringement is really at issue. Again, the issue is not whether or not there is infringing activity occurring on the network; by virtue of the way Congress wrote the infringement statute, infringement is occurring. (See our reasoning above.) Any normative arguments about the realism of applying that statute in that way in a digital networked economy are worthwhile, but will not be addressed in this specific article.

Context, Evidence-Based Findings & Scientific Method

But what we do not yet know is what type of infringement is occurring in this study. And here we distinguish between technical infringements (i.e. people who post stuff they own in disc form, but are trading, lending, or making available in digital form, without knowing what they are doing is, technically, a violation of Section 501(a)) or rogue, behavioral infringement (i.e. people who post stuff they never have rightfully purchased or possessed, and who never intend to buy the source material and merely wants to get stuff for free).

This distinction is critical for several reasons. First, identifying this factor through an operationalized variable and applicable statistical analysis would help begin to classify what type of behavior is behind the infringing activity. In turn, this is important because it begins to strike at the fit between normal behavior and legal standards. It is the common “speed limit” theory of law: if all people are traveling safely at 65 in a 55 m.p.h. zone, why write a speeding ticket? In contrast, if some are traveling at 95 in a 55 m.p.h., is there any good reason not to write a speeding ticket, regardless of the level of traffic?

Second, this distinction is critical because of a phenomenon that already has begun to occur. For example, there are some who may will point to this study as evidence that BitTorrent especially — and peer-to-peer networking, more broadly — is rife with illegal (”piratical”) activity that threatens the livelihood of creators and the companies that help manufacture, distribute, and own the discs that hold the source content (and own the content as well).

Indeed, one commentator already has issued a reflexive and impetuous claim that attempts to link the summary’s findings to a broader policy issue about net neutrality. “Valuable information to keep in mind while debating net neutrality rules and ISPs’ right to manage their networks and fight piracy,” wrote Ben Sheffner of Copyrights and Campaigns last week. In this quote and subsequent responses to reader comments, Sheffner suggested that Internet service providers have a duty restrict infringing traffic on their network, and that this duty should manifest itself in a three-strikes/graduated response policy that has been adopted nationwide in France and is beginning to be adopted in other European Union countries.

(There is plenty of background available on three strikes/graduated response. This article by Canadian attorney Barry Sookman outlines an argument in favor of three-strikes/graduated response. Last year, Sheffner gave his take on what he views as the distinction between “graduated response” from “three-strikes.” EFF posted in November about the Anti-Counterfeiting Trade Agreement (ACTA), which has been negotiated in secret, and allegedly includes a three-strikes provision that would affect U.S. law. Michael Geist did a five-part series (1, 2, 3, 4, 5) about ACTA in January, and wrote a separate column about three strikes.)

It is all the more convenient and useful for an advocacy-driven argument in favor of graduated response that “evidence” of BitTorrent’s transmissions would come from someone like Edward Felten because of his credentials and history. As a tenured computer science professor at Princeton, Felten’s work receives a default presumption of validity and prestige. Additionally, Felten had a high-profile experience with U.S. copyright law in 2000, when the recording industry lobby used the DMCA to squelch a scientific paper Felten and fellow scholars wanted to present about circumventing digital encryption on music files. Contextualizing all this information, an advocate could presume that Felten is hostile to copyright law because of this experience, and that publication of this type of result, on this type of paper, with this type of subject matter helps prove beyond a reasonable doubt — along with this Ivy League credentials — that BitTorrent (and by extension, peer-to-peer networks) are dens of copyright iniquity.

But drawing such correlations at this point — with respect to the summary, the resulting paper (which has not yet been vetted, reviewed or published), or Felten’s perceived or actual personal or professional biases — is premature and careless. At this point, no one can state definitively that the Sahi-Felten study provides any correlation between the level of infringing files and the BitTorrent network because no one has nearly enough information based exclusively upon the summary they presented. We cannot say whether Sahi and Felten considered the issues we have raised, or intentionally chose not to address them because they were deemed to be outside the scope of their study. On the basis of the summary alone, we cannot draw even an indirect correlation between this study summary and any need (or even a lack of need) for a three-strikes approach in the United States.

This is why it is important to read — and understand — the design, the variables, the operationalizations, the data collection methods, the statistical analyses in a final, peer-reviewed paper before rendering impulsive opinions about potential applicability to a major policy issue. Further, one needs to know enough about statistical analysis and research design to determine whether there is a skew, whether that skew may have been intentional, and if that skew negatively influences the study’s results. Finally, we need to hear what Sahi and Felten say about the study’s scope, and directions for further research. No matter how well-designed and presented, every study has some limitation, if only because scientific research is not static. Scientists typically live with, and explain, such limitations.

Jumping past this investigation and analysis may be considered acceptable within the context of litigation advocacy, where the objective is to win a specific objective for one’s client. But it is intellectually sloppy from a scientific and empirical perspective. As law professor Justin Hughes once wrote, “[T]he historian or the scientist is trained to research, to explain, and, we hope, to get to the bottom of things. The lawyer — hence, most legal academics— prepares just enough precedent to convince.”

Empiricism and science are the standards from which Sahi and Felten presented their research summary, and those are the standards any resulting final paper must meet. Our questions above are presented from the perspective of social science. Further, research and empirical support — not blind, unilateral advocacy — should be the bases upon which any information policy (especially three-strikes) should be proposed and promulgated.

We can say with a strong level of confidence, however, that the way the current statutes are written, it would have been shocking if anything significantly less than 100% of the files on BitTorrent were technical infringements of copyright law. That reality — and the gap between it and societal norms — is worth continued study.

© Copyright 2010, Copycense. Twitter: @copycense

Technorati Tags: Barry Sookman, Ben Sheffner, BitTorrent, Copyrights & Campaigns, Edward Felten, K. Matthew Dames, Michael Geist, Sauhard Sahi

We have been extraordinarily busy lately, and therefore have yet to write on important issues like the Amazon Kindle situation. Yet, we felt compelled to write this entry after two occurrences over the past four days.

In the first situation, several of the participants thanked us for leading a recent copyright training session. While doing so, many participants commented they felt our education session was useful because it was the first session they ever had attended in which the session leader actually required them to read relevant portions of the Copyright Act of 1976. It is hard to fathom how one could teach copyright without reviewing the statute. In fact, we never write a post here on Copycense without having a browser tab open to the U.S. Copyright Office’s official version of the law.

In the second situation, we were reviewing our sources, first comments to a copyright-related Techdirt post; then a post from Ben Sheffner, the editor of the Copyrights & Campaigns blog. Sheffner, who has done a fine and professional job covering the Jammie Thomas-Rasset and Joel Tenenbaum copyright infringement trials, opened his post by writing the following:

On the Internet, (almost) everyone hates copyright. In fact that’s one of the reasons I started this blog. Every day, for years, I would read about how copyright is stupid, outmoded, destructive, and downright evil. But I knew that the ‘law’ I would read about bore scant resemblance to the actual law, and the way that businesses that earn revenue from production and exploitation of copyrighted works actually function. And I knew that not everyone harbored such vitriol and venom for the copyright owners, who routinely win major victories in the courts and the political arena.

After these two incidents, we thought that one reason so much misinformation (and even disinformation) exists about copyright is because too few ever have actually read the statute.

We’ve one simple suggestion for everyone with skin in the copyright game: read the law. Actually READ it. Do not rely on anyone else’s interpretation or take on what the statute says — even ours.

And make no mistake: the Copyright Act of 1976 is horribly written. It’s torturously complex. It is (in many places) nonsensical and even contradictory. Arguably, it reflects the wishes of only a certain set of actors. But is the law we have in the United States that governs “original works of authorship fixed in [a] tangible medium of expression …”

Reasonable people can reasonably disagree on interpretations, value systems, theories, even history. Ben Sheffner’s perspective on a given copyright issue in Copyrights & Campaigns likely is fundamentally different than the point of view we at Copycense would take on the same issue. (For one, we do not hate copyright. Quite the opposite, actually, and we’ve been writing about copyright online for five years; educating about it for 10; and involved with it for more three decades. It is our respect for, and love of, the copyright system that makes us wretch at the abuses of people like Joel Tenenbaum and Jammie Thomas-Rasset.)

Further, Sheffner likely subscribes to a property-based theory of copyright law and will point to evidence that supports his view. In contrast, we believe the property-based theory of copyright is incorrect and can point to scholarship that demonstrates property never has played a substantive or legal role in this country’s copyright history.

But you know what? It’s all good. It’s a free country.

Yet we believe we and Sheffner can agree on this narrow concept: there are entirely too many folks opining or writing about copyright issues who have not spent any significant time reading the statute. Some folks are what William Patry might call “the crazies,” who rail about copyright online without any shred of evidence, study, or proof. Still others are folks like Mark Helprin, a respectable writer of some fame in some literary quarters, whose book Digital Barbarism shows absolutely no evidence that the author has spent any time reading the statute or reading about the law itself.

And journalists from the most respected news publications can be the absolute worst, routinely getting wrong the most basic issues in coverage of critically important copyright issues, policy, or cases. (Again, Sheffner — thankfully — has distinguished himself as an exception to this unfortunate trend.)

So let us make it clear as Caribbean water: if you are affected by copyright, you absolutely MUST read the Copyright Act of 1976. And arguably every American citizen now is affected by copyright: YouTube takedowns, the Kindle controversy, and the mere inability to skip your DVD’s ominous FBI copyright warning are simple, common examples that illustrate that in the 21st century, copyright is as much a citizen’s issue as it is a corporate or trade issue.

You may not fully understand the Copyright Act, but if you can read at all, there is no excuse for you not to read the statute. It is part of your duty as a citizen to read the Copyright Act and to have some idea about what it says.

Our next few posts we be devoted to facilitating how best to read and make sense of this complex, but important statute.

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Technorati Tags: Amazon.com, Ben Sheffner, Copyrights & Campaigns, K. Matthew Dames, Mark Helprin, Techdirt, William Patry

In October 2007, we wrote in these digital pages an article entitled “Should We Still ‘Free Jammie’?” The article’s title referred to a then-existing campaign to elevate Jammie Thomas-Rasset (then Jammie Thomas) to political prisoner status because she lost at trial after being sued by several record companies for copyright infringement.

The core issues in Thomas-Rasset’s second trial, which concluded last month, were substantially similar to those litigated in her first trial as defendant, in which a federal jury found her liable for copyright infringement, and awarded the copyright-owning record companies $222,000 in damages. At the time, we questioned whether the “Free Jammie” campaign was appropriate, given the facts of the case and Ms. Thomas-Rasset’s reported appellate strategy:

Technology publication ArsTechnica is reporting that Jammie Thomas’ appellate strategy will be to question the damages award first, leaving to a later date the broader (and arguably more important) issue of whether or not “making available” files violates the reproduction and distribution rights in Section 106. Ars reports that if the court decides against granting a new trial, Thomas would have 30 days to appeal the original verdict, and she could use that opportunity to argue against the “making available” doctrine, which the judge conveyed in jury instructions.

William Patry has observed that he would be “stunned if there is any room for overturning the award. There is doubt that any award within the permissible range, even the tippy-top, is subject to review. I think there may well be cases where a damage award may be constitutionally flawed, but this is not one of them.”

Still, since Thomas currently is responsible for more than $200,000 in statutory copyright infringement damages, there is little surprise that she would look to reduce that figure. The strategy, however, smells like an unfortunate case of CYA and seems narrow considering the broader stakes at hand.

Thomas and her counsel certainly knew this case would be a high profile matter, but both also had to know this case would have a significant effect on the substance and interpretation of copyright law. It is reasonable to expect any party in litigation to do only what is best for their personal and legal interests. Likewise, attorneys have an obligation to work primarily in their clients’ best interests. But in light of the context, it also seems reasonable for those interested in copyright to expect the litigants in these high profile, important cases to recognize the cases’ legal and societal issues and attempt to resolve such issues, while continuing to do what is best for the client.

…

The more we dig into this case, the more likely we are to conclude that Thomas was the wrong defendant to support in the wrong case. A five-minute deliberation on liability indicates Thomas’ liability never was in doubt. That fact alone suggests Thomas (as well as proponents for balanced copyright) would have been much better off had she settled for $3,000.

…

Good party or no, good facts or no, Thomas now is in the belly of the beast, but in ways much more significant than the $220,000 in damages she must pay. This verdict will embolden the music industry to continue its ridiculous litigation campaign; at a minimum, focusing on continuing the campaign likely will keep the industry from making the fundamental business changes it needs to make in order to provide valuable services to consumers in a vastly changed business environment. No one wins in this arrangement.

We were willing to go along with the “Free Jammie” ride so long as she and her legal team recognize they have a responsibility to litigate and resolve the broader, more significant policy issues — particularly this issue of “making available” being made a de facto seventh exclusive right in Section 106.

But if Thomas and her legal team are unable or unwilling to make a legitimate attempt to resolve this and similar broader policy issues, we cannot continue to support their cause because it seems there is no doubt she committed widescale copyright infringement and her appeal seems confined to soothe the sting of what seems to be a sound, if harsh, penalty. We would much rather support [defendants] like Tanya Anderson, who is much more the victim of RIAA’s overly aggressive and flawed litigation tactics than Thomas seems to be.

Ms. Thomas-Rasset ended up getting a reprieve, as a federal judge vacated the first jury’s verdict because of an errant jury instruction. At the time, William Patry opined that he failed to see where the $222,000 verdict could be overturned on constitutional grounds. Ms. Thomas-Rasset refused to settle the case with RIAA, leading to a retrial that occurred last month.

In the second trial, a second federal jury determined that Ms. Thomas-Rasset committed copyright infringement by downloading 24 songs onto a personal computer over which she had control (or to which she had access). The second jury then awarded the copyright owning music companies $1.92 million in willful infringement damages per Section 504(c)(2). In the wake of this second verdict — in which the jury took only five hours to deliberate (compared to five minutes in the first trial) — much of the commentary has been about potential backlash against the recording industry, the recording industry’s “capacity for evil,” and the “scapegoating” of Ms. Thomas-Rasset.

What? Are you kidding us?

As before, Jammie Thomas-Rasset is the wrong person to support against the music industry. Let us elaborate, so no one gets the idea that we’re front running only on winning cases (of which there really have not been many) or cherry picking cases or factual circumstances to create an ideal situation in which individuals can avoid purchasing music or other forms of entertainment.

We purchase a lot of media: literally, thousands of dollars per year in compact discs, DVDs, and game cartridges. Almost all of that content is material we have purchased from a retail outlet: despite having had this outlet for more than five years, we tend not to get schwag. It’s all good, though, because creators tend to get penalized when the copyright-owning company sends out promos and schwag. Since we buy what and who we like, we’re more than happy to support the artists we like through media sales and through tickets to live performances.

So merely as consumers and purchasers of copyrighted material, we have no sympathy for Jammie Thomas-Rasset. (And let’s not get into puerile arguments about privilege, net worth, disposable income or the ability to pay for music or entertainment.)

Additionally, though, we have no sympathy for Ms. Thomas-Rasset from a broader legal and policy perspective. As we mentioned in 2007, if your issue becomes a legal case that encapsulates a broader societal or political issue, we believe you and your attorneys have a broader obligation than just winning or working exclusively for a singular benefit. This is not too much to demand from Rasset-Thomas, as she has been willing to benefit all she can from martyrdom. But with her willingness to benefit from that role comes the responsibility of doing the right thing for a broader effort (especially where that effort is put forth in the name of balanced copyright). Thus far, though, it seems she has been willing to benefit from the quid, but not provide the quo.

Twice Thomas-Rasset has remained defiant after a jury’s overwhelming swift conclusions that her explanations had no credibility, explanations that effectively blamed her children for the downloading of 1,700 songs. (The latest willful infringement award is based upon 24 songs.) Given that the recording industry has shown absolutely no compunction in chasing after children and senior citizens in this litigation campaign, why would she do that?

Twice she has been to trial, and twice she has lost convincingly on a matter of significant legal, societal, and policy importance. And she has lost primarily because no one on either jury believed her; twice a jury of her peers has determined that Jammie Thomas-Rasset had absolutely no credibility.

Twice, she has benefited from legal representation that she either has yet to pay for, or has gotten free of charge.

We have scorched the music industry repeatedly in these pages for business and strategic errors, sloth, greed, and frequently (and with Congress’ help, successfully) tilting copyright law beyond what we believe (and our extensive research has proven) is a Constitutionally-mandated balance that should benefit creators, owners, and the public equally. But in its case against Thomas-Rasset, we have absolutely no problems with what the labels did and why they did it. Even though hers were civil jury trials, there can be no reasonable doubt: Jammie Thomas-Rasset was downloading and exchanging hundreds of songs without compensating the artists or the copyright owners, and she got caught.

As much as we think the music industry’s broader campaign against customers is poor business and policy, we completely support a system in which a copyright owner has the exclusive right “to do and to authorize” anything under Section 106 or Section 106A. We never have questioned that principle, or the system that supports that principle.

Jammie Thomas-Rasset has violated these principles without a legal excuse or limitation, and it seems she has played the public for foolishness by taking advantage of a broader anger at the music industry specifically, and more generally, a U.S. copyright system that has some problems and needs calibration, but still is one worth supporting.

Ms. Thomas-Rasset should pay her lawyers for their work, and the copyright owners for her infringements.

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Technorati Tags: Copycense, Jammie Thomas-Rasset, Judge Michael Davis, K. Matthew Dames, RIAA, William Patry

[Editor’s Note: This is the second of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Part 1 was published on May 28; Part 3 will be published on Tuesday, June 9. Portions of this work are included in a continuing study about the framing of “piracy” and its influence on U.S. copyright law. For ease of reading and formatting, this excludes scholarly references, but replaces them with hyperlinks to source material where such links are available.]

This article summarizes the Special 301 process, including its history, its procedures, and the 2009 Special 301 report.

Background of Section 301

Section 301 of the Trade Act of 1974 (19 U.S.C. sec. 2411), as amended, is the principal statutory authority under which the United States may impose trade sanctions against foreign countries that violate, deny benefits under, or unreasonably discriminate against the U.S. government, or otherwise restrict U.S. commerce, pursuant to a trade agreement. Section 301(a) may be understood as a self-help strategy for discouraging breach of agreement by trading partners.

(a) The Patent Lobby

The seeds for the contemporary Section 301 process were sown in the mid-seventies. Partly as a reaction to the Watergate scandal, Congress adopted several reforms that sought decentralization of government and allowed private companies to influence trade policy. IBM and Pfizer were two of the first companies that recognized the need for a global approach to intellectual property protection. In the late 1970s, the CEOs of these two companies “devised a strategy to improve intellectual property protection internationally until American standards became the international norm, especially in developing countries.”

Pfizer sought “significant reform” of the Paris Convention, while IBM sought patent treaty reform and full copyright implementation under the Berne Convention (especially reforming Berne to recognize the copyrightability of software). Together, the two companies sought multilateral diplomacy through the General Agreement on Trade & Tariffs’ Advisory Committee on Trade Policy and Negotiation (“ACTPN”). Pfizer chief executive officer Edmund Pratt and IBM chief executive officer John Opel held high level positions on ACTPN.

By 1985, ACTPN was playing a major role in U.S. trade policy. Around the same time, the U.S. economy was struggling from the effects of large trade deficits with several foreign countries. Industry associations identified and blamed a foreign, monolithic enemy: “pirates.” U.S. corporate executives convinced members of Congress that America’s economy and the nation’s long term economic and innovation competitiveness would improve only if the country passed trade laws that levied stiff punishments for continuing trade violations, especially those that involved “piracy” of intellectual property.

This led to a number of changes to trade policy. For example, ACTPN recommended that the U.S. Office of the Trade Representative (“USTR”) create a post of assistant trade representative for investment; USTR did so in 1981. In 1985, ACTPN established an intellectual property task force in 1985, with Pratt, Opel, and Fritz Attaway serving. (Attaway is executive vice president and Washington general counsel for the Motion Picture Association of America, where he has worked since 1976.)

From this core, ACTPN worked to educate people in Congress and in the executive branch (especially USTR) about the importance of protecting intellectual property rights as a way of facilitating investment in developing countries. Part of the education included targeting Washington policy makers with conferences and books, both of which emphasized that American competitiveness in innovation industries was being hurt by developing countries’ failure to pass or enforce laws that protected American intellectual property. As a result, USTR spent much more time and diplomatic effort in putting intellectual property issues on the GATT Uruguay Round agenda in 1986, ultimately consulting ACTPN on a “GATT strategy.”

(The GATT Uruguay Round strategy was a “carrot and stick” approach to trade and intellectual property negotiations with developing countries. On one hand, the U.S. offered tariff concessions on agricultural and textile products and technical training on intellectual property issues. In exchange, the U.S. wanted higher levels of intellectual property protection to combat “piracy” and counterfeiting. A foreign country’s failure to comply would result in cutting the country’s aid through America’s General System of Preferences, and possible trade sanctions pursuant to Section 301 actions. Said more simply, where bilateral and multilateral trade concessions GATT Uruguay Round are the carrot, Section 301 actions are the stick, a form of unilateral sanctions.)

The Intellectual Property Committee (“IPC”) was another important trade group that started work during this period. IPC’s purpose was to be a spokesman for intellectual property-based companies and lobby their interests in Washington and Geneva. Charter members were Pfizer, IBM, Merck, General Electric, DuPont, Warner Communications, Hewlett-Packard, Bristol-Meyers, FMC Corporation, General Motors, Johnson & Johnson, Monsanto, and Rockwell International.

(b) The Copyright Lobby

While ACTPN and IPC handled multilateral GATT diplomacy strategy, the corporate owners of large copyright portfolios became concerned that the ACTPN was too focused on patent issues. Those companies began seeking their own bilateral strategy to strengthen international copyright laws, resulting in the formation of the International Intellectual Property Alliance (“IIPA”). IIPA charter members included the American Association of Publishers; the Motion Picture Association of America; and the Recording Industry Association of America. The Business Software Association and Interactive Digital Software Association since have joined IIPA.

Created in 1984, IIPA also was established to advocate an agenda for the USTR’s Section 301 report, which Congress codified in the U.S. Trade and Tariff Act of 1984. Among other things, the 1984 Trade Act clarified the Section 301 review process, for which copyright creators had lobbied. In 1985, IIPA submitted to USTR a report entitled Piracy of U.S. Copyrighted Works in Ten Selected Countries that presented data from IIPA members that estimated $1.3 billion in lost film, music, computer software, and books sales due to “piracy.”

USTR responded by initiating a Section 301 investigation against Korea. Based in part upon this initial report, IIPA lobbied Congress to institutionalize the measurement of copyright problems in foreign countries, leading to an amended Section 301.

Section 301 Process Overview

The Section 301 process works in the following way:

1. Initiation: Any interested party – usually a private sector interest group – files a petition with USTR to request that the government agency investigate a possible trade violation. (USTR also may initiate an investigation on its own.)
2. Publication: USTR publishes its determination to initiate an investigation (or reasons for not initiating in the case of a petition) in the Federal Register.
3. Hearing: A public hearing is required if USTR initiates a Section 301 investigation.
4. Consultations: Once an investigation begins, USTR must request consultations with the foreign government.
5. Settlement: Where an investigation involves an alleged violation of a trade agreement (such as a World Trade Organization (WTO) agreement or the North American Free Trade Agreement (NAFTA)), USTR must follow the dispute settlement provisions set out in that agreement.
6. Conclusion: USTR must conclude its investigation and make a determination of whether the foreign practice is actionable under Section 301 within 18 months after initiation of an investigation involving a trade agreement that includes a dispute settlement mechanism, or 30 days after conclusion of dispute settlement procedures, which ever comes first.

The Trade Representative’s use of Section 301 as a procedural stick in intellectual property protection is recent. In 1984, USTR held little institutional knowledge about intellectual property matters. At the urging of IIPA members, the Office hired a new deputy trade officer, intellectual property lawyer on staff whose primary job was to advise USTR staff on issues of bilateral and multilateral diplomacy. Armed with new expertise and IIPA data, USTR started a Section 301 action in fall 1985 against South Korea.

IIPA complained South Korean businesses were extensively “pirating” books, music, film and software, and the organization claimed annual sales losses in Korea totaling $150 million. This may seem an insignificant amount now, but given the time frame – mid-1980s; high inflation; large trade deficits, particularly to Asian countries – this estimate was significant enough to warrant the attention of U.S. government officials. Korean negotiators insisted that the country’s level of development was insufficient to revise its intellectual property laws. The U.S. countered by threatening to strip Korea of its benefits under the Generalized System of Preferences.

In July 1986, Korea and the U.S. reached an agreement whereby Korea would revise its copyright laws, become a signatory to a number of international copyright treaties, and pledge to strengthen penalties against copyright infringement. Korea also pledged more aggressive patent enforcement. This was USTR’s first successful implementation of the Section 301 process against foreign country based upon “piracy.”

It is common for a private sector group to initiate a Section 301 petition against a foreign country because of alleged “piracy” issues. Initiating petitions, however, puts U.S. companies at risk of having foreign governments retaliate against their overseas subsidiaries. The retaliation can take the form of selective regulatory enforcement or questionable contract awards.

To guard against this possibility, Congress in August 1988 passed Special 301 as part of the U.S. Omnibus Trade and Competitiveness Act. Sponsored by former Illinois Congressman Dan Rostenkowski and referred to in some quarters as a “velvet fist in an iron glove,” Special 301 requires USTR to identify nations that fail to protect the intellectual property rights of U.S. companies by April 30 annually.

Any country whose acts, policies, or practices are “the most onerous or egregious” and have not entered into (or are significantly progressing toward) negotiations to provide adequate and effective intellectual property regulation the USTR must designate as a “priority foreign countries.” Countries that USTR does not designate as “priority foreign countries” may appear on “priority watch” or “watch” lists if the U.S. government is concerned about their intellectual property laws or enforcement practices.

As before the 1988 amendment, industry organizations play a vital role in filing petitions (requiring USTR follow up) and providing evidence of economic losses due to “piracy.” For example, in a response to USTR’s required Federal Register posting requesting public comment on country identification for the Special 301 report, IIPA earlier this year submitted “[its] discussion of the types, levels, and costs of piracy, an evaluation of enforcement practices to reduce those levels, and the status of copyright law reform in 60 separate country reports.” Referencing its Jan. 30, 2007, report entitled “Copyright Industries in the U.S. Economy,” (.pdf) IIPA claimed in a 22-page cover letter (.pdf) that

“core” U.S. copyright industries accounted for an estimated $819.06 billion or 6.56% of the U.S. gross domestic product (GDP) in 2005. These “core” industries were responsible for 12.96% of the growth achieved in 2005 for the U.S. economy as a whole (this means that the growth contributed by these core industries (12.96%) was almost double their current dollar share of GDP (6.56%)). In addition, the “core” copyright industries employed 5.38 million workers in 2005 (4.03% of U.S. workers) in 2005.

It is essential to the continued growth and future competitiveness of these industries that our trading partners provide not only free and open markets, but also high levels of protection to the copyrights on which this trade depends. This protection upon which so much U.S. economic performance rests is under constantly evolving threats, and it is critical to sustain U.S. economic competitiveness that our country’s response remains flexible, innovative and committed. There are certain sectors of the U.S. copyright community, notably the music sector, that has already witnessed significant declines in foreign sales and royalty remittances as a consequence of increased levels and new forms of piracy, and it is essential that we address these problems on an urgent basis.

The IIPA mentioned the term “piracy” 93 times in the cover letter. None of those mentions is consistent with the term’s primary definition in Black’s Law Dictionary, the United Nations Convention on the Law of the Sea, Oxford English Dictionary, or the United States Code.

The 2009 Special 301 Report

The 2009 Special 301 report, which the USTR released on April 30, examined more than 40 countries, placing a dozen (China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Pakistan, Thailand and Venezuela) on the “priority watch” list (PWL). The number of countries on the report’s “priority watch list” has remained relatively stable over the years. (In 2007, there were 12 countries on the “priority watch list.” In 2008, nine countries made the list. China, Russia, Argentina, India, and Thailand have made the PWL each of the last three years.)

USTR placed more than 30 additional countries on its 2009 “watch list.”

Canada was perhaps this year’s most surprising inclusion on the 2009 PWL. Over the past three years, Canada has experienced considerable citizen interest in (and resistance against) government proposals to increase the country’s level of copyright protection, most notably through a Facebook group organized by University of Ottawa law professor Michael Geist. The citizenry’s effectiveness in halting government proposals to spread stronger protections, however, has led to disapproval from the U.S., its southern neighbor:

[T]he Government of Canada has not delivered on … commitments [to improve IPR protection and enforcement] by promptly and effectively implementing key copyright reforms. The United States continues to have serious concerns with Canada’s failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties. The United States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada’s weak border measures continue to be a serious concern for IP owners.

Part of the reform the U.S. wants Canada to pass is C-61, legislation that mirrors the U.S. Digital Millennium Copyright Act. Since the Canadian government has had difficulty in passing this and similar legislation, the U.S. has placed it alongside perennial PWL countries like Russia and China.

Copyright on Twitter: twitter.com/copycense

Technorati Tags: Copycense, K. Matthew Dames, Office of the U.S. Trade Representative (USTR), Special 301

Normally, this post would be something best left to someone like William Patry, whose credentials on copyright are above reproach. Lawrence Lessig has responded to Helprin in a contemporary and ingenious way, but Lessig’s main focus now has moved from intellectual property matters to what he has called “corruption” (and what Harvard Law School, his new employer calls “a major five-year project examining what happens when public institutions depend on money from sources that may be affected by the work of those institutions”).

We are nowhere near the orbit of either Patry or Lessig when it comes to issues of copyright theory and history. We do think, however, we have some reasonable ideas and knowledge about the American copyright system and its increasing imbalance. And consistent with the the expectations the public should have of scholars and journalists, we don’t just spew: we back up our assertions with the best information we have available at the time.

Therefore, since Patry and Lessig are doing other things, we feel obliged to address Mark Helprin’s of editorials on the U.S. copyright system, the most recent of which was published in the May 11 edition of the Wall Street Journal.

Deconstructing the Myth of Romantic Authorship

Helprin’s views on copyright have been getting a lot of publicity lately. Conveniently, his views on copyright coincide with the release of a new book he has to promote, one that purportedly is about American copyright. The book, entitled Digital Barbarism: A Writer’s Manifesto, has been described by The Wall Street Journal in a review as an argument for copyright’s perpetuity. Interestingly, the WSJ review (written by the executive vice president of News Corp., the Journal’s publisher) is entitled “Hands Off, It’s Mine.” This title is important, and we’ll return to it in a moment.

Helprin first introduced his view of the American copyright system two years ago, in a New York Times editorial. Entitled (at least in the Times‘ online edition) “A Great Idea Lives Forever. Shouldn’t Its Copyright?”, Helprin argues in favor of endless copyright (or as the late MPAA president Jack Valenti would have put it, at least “forever less a day”):

The genius of the framers in making [the Constitution’s limiting clause “for limited Times”] is that it allows for infinite adjustment. Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

The argument Helprin makes is consistent with a construct copyright scholars refer to as the “Romantic author,” which itself is related to theories of authorship. Authorship is central to copyright law: the U.S. Constitution grants “to Authors and Inventors the exclusive Right to their respective writings and discoveries.” Authorship also is relevant in contemporary, statutory copyright law: while the current Act fails to define what an author is, other parts of the Act refer to the author as the initial copyright owner. (As a practical matter, ownership of one or more rights in a copyright usually ends up with a person or entity other than the author.)

The Romantic Author theory essentially claims that authorial rights exist in law because authors naturally have a right in their work the moment it is created, that an Author is worthy of such rights, and it is righteous, ethical and just for the Author to have such a connection (creatively and legally) between him and his work. Additionally, the theory claims an author should be allowed a wide (and perhaps even endless) term to earn money from his protected work to the extent that he can claim sole credit for the work’s creation.

The Romantic Author theory focuses intently on the individual for two reasons: first, the Author is considered to be a privileged individual; second, the creative activity of Authorship is considered to be separate, discrete, and solitary instead of collaborative, cumulative, or derivative. To this end, the Author is considered to develop his creations in nearly complete isolation, without any external influences or inspiration. Within his creative cocoon, he is able to (perhaps even entitled to) be known as the ultimate source of text.

Even though a related thread of this narrative involves viewing authors as craftsmen – a characterization that seems to dampen the emphasis on creative and intellectual genius – that thread still allows for a set of circumstances where by hard work melds with tradition and divine inspiration. Even this slightly less glamorous thread of the Romantic Author narrative continues to allow for a direct connection between divine inspiration and the resulting words on the page.

While appealing, however, the construct of the Romantic Author is false. For example, Texas law professor Oren Bracha argues persuasively in a 2008 journal article that ascribing the entirety of the U.S. copyright regime exclusively to a Romantic Authorship narrative not only is too simple, but it is historically inaccurate. Peter Jaszi, both on his own and in collaboration with Martha Woodmansee, has shown that the Romantic Authorship trope – while false – still has become an active and destabilizing force in copyright doctrine and policy.

Northwestern law professor Olufunmilayo Arewa has written extensively about the ethos of collaboration and borrowing in the creative process (including in classical music), and Georgetown law professor Julie Cohen has discussed the dynamic interactions (.pdf) between individual creators and social and cultural patterns as the root of authorship.

Even French philosophers such as Michel Foucault (.pdf) and Roland Barthes (.pdf) essentially have questioned the premise of the author as solitary genius — no insignificant question given that both men come from a country that takes authorship genius (as manifested through the concept of droit moral) to a far greater degree than exists under U.S. law. In the end, the “mine” that Helprin wants to champion really is more like an “ours,” since virtually every creation will be derived from something else. (In fact, one could make a reasonable argument that the default nature of authorship in a digitally networked society is not the mix, but instead the remix.)

There is also an irony in the authorship construct that Helprin promotes. If one assumes that an individual’s creativity is king, then it would play a larger role in contemporary copyright law than it actually does. A person’s work qualifies to receive copyright protection once he creates something original, then fixes it in some recording that can be perceived by another person. The level of original creativity that U.S. law requires, however, is relatively slight. Helprin suggests every piece of writing is a War and Peace in the making, and thus the law should go to the extreme to protect such creative epics. But the fact is that American law does not require the proverbial opus: according to the U.S. Supreme Court’s opinion in Feist v. Rural, 499 U.S. 340 (1991), “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.”

Influencing Copyright Law & Policy

Helprin’s views about a certain class of copyright lobbyists are more easily dismissed. In the May 11 WSJ editorial, Helprin sharply attacks organizations he considers to be anti-copyright (and by extension, perhaps also against creativity):

But copyright, the rampart of the mythical city, is besieged by a widespread movement antagonistic to authorial right and the legitimacy of intellectual property. So-called public interest groups serve the new information super powers, the Standard Oils of our age, whose interests would be advanced if they did not have to bother with permissions and payments for what they call “content.” The Creative Commons organization, for example, is richly financed by Google, Microsoft, Yahoo, Mozilla, Sun, the Hewlett Foundation, and others of type.

The opponents of copyright are no more disinterested than its defenders, although they do a good job of pretending, and their theories have become the window dressing for the piracy of software, music, movies — and soon the written word. They may claim that they are not against copyright per se. But if, as they repeatedly assert, copyright is an unjustifiable tax, a monopoly, and a bar to creativity, why wouldn’t they or anyone else be against it, as in fact they are?

Specifically as to Creative Commons, we have said before that our problem with the entire CC concept is that it moves copyright issues into the realm of contract law instead repairing their federal statutory and political bases. The flip side is that if the current copyright system was in its proper, Constitutionally-mandated balance, it is possible there would be no need for organizations like Creative Commons, or Electronic Frontier Foundation, or Public Knowledge.

To this end, Helprin’s argument sounds suspiciously like Republicans who now whine they have no political organizations to represent their views like the Democratic-oriented Center for American Progress, all the while forgetting they spent years building and funding organizations like the Heritage Foundation.

Since Helprin apparently is new to the copyright game, perhaps we can forgive his ignorance for not realizing that RIAA, MPAA, BSA, IIPA and lobbyists for various other corporate copyright portfolio owners not only are well-funded and organized, but long have been the exclusive arbiters of U.S. and international copyright law and policy, as both Jessica Litman and William Patry have noted. Interestingly, none of those lobbying organizations have authors’ or creators’ best interests in mind. Sure, their marketing and political rhetoric is quick to mention the author (in all her Romantic glory) and their protection of her art. In actuality, however, those lobbyists mention the author or creator merely to humanize their true clients: multinational corporations whose revenues, profits, expense account sizes, and share prices all depend on licensing one or more of the six rights a copyright owner receives under the 1976 Act.

Of course, the only way the corporations can do this is to actually own the rights in the first place, thereby divesting that same author or creator of the legal or economic power that arises from her creation. In reality, copyright ownership in the U.S. is often a zero-sum game: the authors get zero, and corporate owners get the sum. Helprin cannot reasonably refute this.

Again, we can excuse Helprin’s ignorance of the industrial and legal realities: copyright, unfortunately and after all, is complicated. There is no excuse, however, for patently misrepresenting the policy positions or the missions of the organizations he has chosen to attack. Some of us at Copycense have been involved in copyright matters going back more than a decade from the legal and political standpoint, and for more than 30 years from the creative standpoint. At no point have we heard or read anything from EFF, Public Knowledge, Creative Commons, or a similarly situated organization that serves as “the window dressing for ‘piracy.’”

Do we agree with everything these organizations promote? Certainly not, and regular readers know we have said so. But even a cursory glance at their positions would reveal all are in favor of balanced copyright legislation. None of these organizations, however, give any credence to Helprin’s tight embrace of the Romantic Authorship construct. Unfortunately for him, neither does the history of copyright law, either in the U.S. or in England.

We have no problem with accepting new voices into the copyright debate. Indeed, it is the absence of new voices and new ideas that has led us to the imbalance that exists. But all new voices should be required to perform some basic research and due diligence before opining so publicly about the state of the copyright world. At least based upon his editorials, Helprin clearly has not.

Copycense on Twitter: twitter.com/copycense

Technorati Tags: authorship, Copycense, Lawrence Lessig, Mark Helprin, William Patry

We presume Twitter is devoid of any seriousness, but we realized we unintentionally opened a can of thorny theoretical and doctrinal questions last week when we posted the following rhetorical question (or, rather, something quite similar) to our account:

Is copyright an exception to the public domain, or is the public domain is an exception to copyright?

Granted, we’re currently engaged in a project that has us pondering this sort of question in the first place. But we think your answer to this question says a lot about your normative view of the copyright regime. While we have some thoughts about how we may approach answering this question, we do not have an opinion as to which answer (or underlying rationale) is “correct,” if any answer is “correct” at all.

Ultimately, though, since copyright officially touches so many aspects of contemporary, everyday life (for example, see John Tehranian’s interesting analysis of this issue), we think this is a question that people affected by copyright should consider and answer.

Copycense™: Incisive IP.™

We saw today on the Creative Generalist blog a post about a film entitled Rip! A Remix Manifesto. The film, according to the Open Source Cinema Web site, is “an open source documentary about copyright and remix culture. Created over a period of six years, the film features the collaborative remix work of hundreds of people who have contributed to this website, helping to create the world’s first open source documentary.”

The film debuts March 15 at the South by Southwest film festival, but its trailer is available now.

The film’s protagonist is Gregg Gillis, the personality behind the one man sample band Girl Talk. Gillis has become the poster child for fair use lately: Gillis also was a protagonist in another fair use documentary entitled Good Copy, Bad Copy, which was released in 2007. We want to use this piece to probe Girl Talk’s role in the policy debate about copyright, technology, and fair use.

Reviewing Girl Talk’s Work

Gillis’s Girl Talk has released three “mashup” albums on the provocatively named recording label Illegal Art, including Feed the Animals. “Animals” is available from Illegal Art as a “pay what you want” download, but the album also is available from mainstream retail outlets including Amazon.com. We purchased a CD version of “Animals” from a local record store. (For more information about why Copycense doesn’t do downloads, read the April 2008 piece The Downside of Downloads.)

Gillis has evolved into that oxymoron known as the underground music celebrity, with all the requisite things that come with it, including profiles in The Washington Post, The New York Times and the Times Magazine; and Wired. (Wired seemingly has hitched itself to the Gillis train, giving him a Rave Award in 2007 and lots of other ink, including a sample analysis and an analysis of his business model.) Idolator has devoted at least two pieces to Girl Talk, allowing Gillis to maintain “street cred” and an overall aura of mysterious grunge, even as he grows into a full-scale enterprise brand. (Neither Gillis nor his performing alter ego throw off anywhere near the enigmatic shroud that seems to envelop Danger Mouse, whose sample opus The Grey Album I’ll return to.)

Turning to our inner music critic, we consider the Girl Talk albums to be nice, non-intrusive pop albums. We can listen to some of the singles more than once, and we appreciate the imagination and editing work that go into crafting each of the singles. But when compared to other sample albums (see Madlib’s “Beat Konducta” series; virtually anything by the late J Dilla; Prince Paul’s Handsome Boy Modeling School adventures; the Spectoresque wall of samples presented in the early Public Enemy albums; or even Danger Mouse’s aforementioned Grey Album), the Girl Talk works are tame.

To put it another way, at no time did we listen to Girl Talk’s work and shake our head in amazement (or better yet, turn off the stereo in quasi disgust because we realized we’d just heard genius and never could approach it — which we have done with work by Dilla and Madlib). For us, the best sample albums are those that are orchestrated meticulously like a Gil Evans arrangement. They are a roux of sounds, tones, notes in between notes, and a guttural “boom bap,” rather than compilations that club you over the head with the obvious.

But, we’re not mad at Gillis; he does what he does, and he does it capably. For that we say “vaya con Dios.”

GirlTalk’s Role in the Copyright Policy Debate

What interests us more about Gillis and his sonic adventures, though, is his ascension to the throne of fair use martyrdom. I have no idea whether or not Gillis seeks this position, but I would be shocked to know that he is unaware of this role bestowed upon him. Indeed, if the Rip! trailer is any indication, Gillis seems to revel in at least the rogue role, which allows him to “put [Elton John’s music] into a headlock” and, to date, not face any legal or economic consequences. To this end, part of his business model involves casting himself as a villanous (albeit not too threatening) copyfighter who is willing to playing a game of statutory chicken with the music labels from whose records he has culled his considerable sample list, all while writhing nearly naked on a concert hall stage near you.

Thus far, the labels have layed down and done nothing — an unusual move for an industry that never met a lawsuit it didn’t like.

In light of the current, overheated copyright environment, judicial decisions in cases like Grand Upright Music v. Warner Bros. Records, 780 F.Supp. 182 (S.D.N.Y. 1991) and Bridgeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), and (for heaven’s sake) FBI raids targeting mixtape creators and distributors, we must ask this question:

Why hasn’t Gregg Gillis been forced to post bail yet?

Copycense challenges anyone with any skin in the copyright game — artists, musicians, lawyers, academics, journalists, policy wonks, lobbyists — to give us one credible reason why Gillis has not had to sign for his personal belongings after being processed, or had an individual approach his home and hand him a set of papers with those dreaded three words: “You’ve been served.”

We’ll post any credible analysis in full on Copycense. We don’t have to agree with the rationale or the conclusions, but anyone who responds to our offer must pose a strong argument. And to help everyone get on the same page, we consider the following to be weak arguments:

1. “Those cases don’t really apply to GirlTalk because he doesn’t use any of their works [or the cases’ holdings apply narrowly to the Second and Sixth Circuits, respectively].” Come on, now. If you’ve read anything on Copycense prior to this, you’re better than that. If you’ve not read Copycense before now, there’s a lot to catch up on.

2. “Madlib, Dilla and Danger Mouse have not been arrested or sued for copyright infringement for their sample albums.” True, but Danger Mouse did receive a “cease and desist” letter — the precursor to an infringement lawsuit — from the Beatles’ record label. Dilla’s sample opus Donuts was released posthumously, and its proceeds are going to his estate in part to support his mother; it would have made for poor publicity to sue a beloved dead producer. And no other sample artist has has (or has had) a public profile approaching that of Gillis and Girl Talk. Further, one could argue reasonably that a sizable portion of the samples that Dilla used and Madlib uses are virtually unrecognizable (whether they’ve been used natively or transformed) to the vast majority of the American populace. In contrast, almost every sample Girl Talk uses is taken from some readily identifiable popular music anthem.

Here’s the Copycense theory. Gillis hasn’t been arrested or sued because his socioeconomic status fits what the mainstream wants to see when it talks about this issue. Gillis’ bio reads well for mainstream public relations purposes — he is white, middle-class, and educated — and his basic story (fell in love with music and sampling while studying science at a renown institution of higher learning) is All-American. For establishment folks like Congressman Mike Doyle (D-PA), who represents the district in which Gillis resides and has testified before Congress on Gillis’ behalf, Gillis’ story presents a squeaky clean image of American innovation — and decidedly not sepia-toned humans toiling against misery in dark, sweaty, basements or ghetto community rooms where sampling and hip hop culture were born out of the need to get by with less.

And here are our problems with this scenario. First, it legitimizes Gillis’ work in ways that do not benefit other sampling artists, particularly artists of color. If Gillis gets praised in the halls of Congress, yet DJ Drama must worry about federal agents ransacking his studio for performing essentially the same activity, our society is implying that sampling is illegal, rogue, and legally actionable until a white biomedical engineer does it (at which time the activity is transformed into yet another sign of American ingenuity).

Second, this portrayal diminishes the contributions of all artists because it elevates the “genius” of Gillis’ mashup over the source materials. This concept took root for us when we listened to jazz musician and educator T.S. Monk discuss sampling on a 2008 Future of Music Coalition panel entitled Creative License.

We don’t agree with all the arguments Monk promoted while on the panel. For example, his conception of copyright seems to be based upon a notion of singular, unique, and Romantic authorship that we reject. Also, Monk’s opinion that the work of composer Irving Berlin should never fall into the public domain because of its uniqueness and value to American society are views we never could share because we believe all work should fall into the public domain sooner than the current “life plus 70″ law we have now. (Appropriately, we think “life plus 70″ sounds like a prison sentence.) We’re all for Irving Berlin earning from his work; we’re not for Irving Berlin’s estate forever contending that it is owed residuals from Berlin’s work merely by virtue of filial relations.

Artistry and Creation

Still, other of Monk’s comments about the forgotten role of the African-American artist in the sample game are relevant to the instant discussion. During the Creative License panel, Monk told a story about being sent away to attend boarding school in Darien, Connecticut in the early sixties, and the community’s response to a fatal car accident that killed a number of the community’s white students, whom authorities later found were smoking marijuana. “It was at that point that America and the media said, ‘Oh, this drug thing that’s been a problem in the African-American community has now hit the suburbs,” Monk said. “We got a problem.”

Monk’s argued that just as the drug addiction issue seemed to be ignored by most of American society until it seeped out of communities of color and into white, mainstream communities, so too the copyright policy issues wrought by digital sampling have been of little consequence to mainstream America until it began to affect white, mainstream artists like Gregg Gillis. We believe he has an important and valid point.

Few mainstream voices have mentioned the names of sampling artists such as Madlib, Dilla, Prince Paul, Pete Rock, RZA, Ali Shaheed Muhammad or DJ Premier in this debate because (a) they don’t know them; (b) they don’t know their work; (c) they can’t identify the samples these cats have been chopping up for decades; and (d) none of them fall into a socioeconomic demographic that the mainstream values as having a legitimate voice or expression. (To be fair, Public Enemy sonic architect Hank Shocklee, who is African-American, fortunately has been a frequent [WinMedia] and articulate voice in the sampling debate.)

But the policy issues that are inherent in sampling are just as germane to Madlib, Dilla, and RZA as they are to Gillis. The same Congressional testimony that supports Gillis’ use of music samples as a shining example of American ingenuity should apply to the work of artists of color who have been flipping beats for a longer period of time, and arguably doing so in much more ingenious ways.

Monk’s comments on the Future of Music panel also brought into focus the role of the African-American artists as the creative source behind the sampled musical compositions. In addition to arguing that the policy issues in sampling didn’t matter until they affected a white, mainstream sampler, Monk also argued that the sampled music itself never was seen as a problem until mainstream white artists’ work became the source of the samples.

“Just as you had with the drugs, you had [with the digital sampler] a generation of young African-Americans who had been deprived of music education, even though they were at the end of an incredibly rich musical legacy,” Monk commented. “… I remember the first kid I saw standing on the block [in the early eighties]; he’s a human beat box. And I knew he needed a drum kit; he wanted to play some drums, but there were no drums. So he was making due.”

“Then someone says ‘Man, that little two beat piece of James Brown — man, I could loop that …’ The kids didn’t know [the legal ramifications of sampling] because they didn’t understand exactly what they were doing. But the people upstairs knew on day one that we had copyright infringement issues here,” Monk continued. ” … Being [Thelonius] Monk’s son, and having grown up in a house with Miles [Davis], and Dizzy Gillespie, and John Coltrane and all these guys, I know about the rip off. And I know a lot of the rip-off had to do with the fact that these African-American musicians did not have the resources for redress. Nobody was running around sampling Pat Boone [in the early eighties]. This was African-American music. … And somebody upstairs said on day one, ‘Hey main, ain’t nobody gonna sue us. Let’s do it. Let’s see.’ … That’s where it all started.”

Hence, we have the 1991 decision in Grand Upright — which is widely regarded as the first legal decision in American jurisprudence to address illegality in digital sampling — and Judge Duffy’s Exodus admonition that “Thou shalt not steal.” If Biz Markie cannot “steal,” why can Girl Talk?

Conclusion

Like we said above, we’re not mad at Gillis. He seems to have carved out a nice little enterprise for himself. As the kids often say “Don’t hate the player, hate the game.”

This essay explains why we love and support copyright, but hate elements of the game it has become. For Gillis to have avoided legal action this long for producing, distributing, performing and profiting from work that reasonably can be found to be a mass copyright infringement — “piracy” if you will — raises tremendous policy issues about the confluence copyright law and policy, technology, and how artists of color have been treated (or mistreated) in this arena. As we address the copyright policy issues surrounding sampling — a practice that, with hip hop, grew and evolved from artists of color “making due” — we must also address longstanding issues concerning the work of artists of color under the same legal regime.

Copycense™: Incisive IP.™

Technorati Tags: copyright, Girl Talk, Gregg Gillis, Hank Shocklee, J Dilla, Madlib, T.S. Monk