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

Right before the Man of Steel celebrates its 70th birthday, a federal court judge has ruled (.pdf) that the heirs of Superman co-creator Jerome Siegel could claim an ownership share of the character’s domestic copyright. The ruling vests in Siegel’s heirs ownership in the first Superman comic, Detective Comics’ Action Comics No. 1.

Wikipedia has informative biographies for Siegel and his partner, Joseph Shuster, while William Patry (whose work the opinion cites 14 times) provides additional analysis and insight. The case centered on whether Siegel’s estate successfully had terminated the copyright pursuant to Section 304(c).

Siegel and Shuster sold the rights to the comic 70 years ago for $130 (or $14814.32 in today’s money). In comparison, Warner Bros. collected more than $200 million in domestic box office for the 2006 film Superman Returns. This total excludes ancillary (and lucrative) licensing income from all manner of tchotchkes from T-shirts to lunch boxes.

What immediately struck us was the diligence of Siegel’s estate in pursuing this issue. We compare this to the untidy, legally chaotic, and “deplorable” condition of the James Brown estate, which owes $400,000 in taxes and needs to sell memorabilia to preserve its assets.

Michael Cieply. Ruling Gives Heirs a Share of Superman Copyright. The New York Times. March 29, 2008.

See also:
Joy Howe. James Brown’s Estate To Be Sold. WJBF-TV (Augusta, Ga.) Feb. 29, 2008.

Copycense™: Incisive IP.™

“I am not … ‘leaving the movement.’ ‘The movement’ has my loyalty as much today as ever. But I have come to believe that until a more fundamental problem is fixed, ‘the movement’ can’t succeed either.” — Lawrence Lessig.

Lessig Blog. Required Reading: The Next 10 Years. June 19, 2007.

Stanford law professor Lawrence Lessig announces his retirement from the intellectual property debate, and his focus on “corruption” as his new academic and activist core interest. Lessig has proclaimed before that he was retiring from focusing on intellectual property, and like the rapper Jay-Z and too many boxers, he did not walk away. His latest series of writings on his blog, however, suggest he is, in fact, ready to step out the door.

If he Lessig does step away, his work in and on behalf of fair intellectual property has been valuable and admirable. We’ve not always agreed with some of the initiatives for which he has advocated. For example, we’re a bit skeptical of the Creative Commons initiative because it moves copyright issues into the realm of contract law. (This is an issue we’ve discussed recently.) Instead, we think copyright should remain firmly a federal public policy debate.

We also think the litigation team Lessig lead in the Eldred v. Ashcroft case seriously depersonalized the case into a strictly legal argument that was hard to win. We have opined often that the only way federal courts are going to change their holdings in copyright cases is if the debate is less about economics and law, and more about the simple fact that people — individuals — are getting screwed. This position has a chance to build a social revolt against protectionist intellectual property legislation, and with such a revolt may come legislative and judicial change.

For example, if one examines some of the civil rights cases from a strictly legal perspective, one could argue that some decisions were inconsistent with prevailing statutory and case law at that time. Law does not occur in a societal vacuum, however, and with regards to civil rights legislation, society decided it was time to eliminate legally sanctioned discrimination that was grounded in historically inaccurate and damaging opinions on race and ethnicity. Federal courts and legislators had to change the laws or risk anarchy.

We were privileged to witness the Eldred oral arguments, and the level of constitutional argument in that room on that October day was brilliant. It also was cold, lifeless, and meaningless to the average Joe or Jane that merely wants to remix public domain works into something fun, useful, and culturally valuable. There was no outrage or risk of anarchy on the copyright term extension issue (even though a well-formulated grass roots campaign may have stoked such outrage).

And inside the courtroom, Lessig’s argument generally failed to make apparent what we’ve heard him make apparent in other venues: Disney’s manipulation of the term extension issue means that a 10-year-old girl in Iowa can’t come up with the next great animated character because Disney wants to shackle culture to stuff its wallets.

(To be fair, Lessig has conceded he made strategic errors in the Eldred litigation.)

But these issues are minor compared with the good Lessig has done and the enormous effort he has spent in trying to get it right and make things equitable. Lessig has put his energy and his money where his mouth has been, and right or wrong, we respect and thank him for that.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

Technorati Tags: CommuniK., Copycense, K. Matthew Dames

There are two kinds of interviews: interviews that go well, and interviews that are difficult. This is one that went well.

We here at Copycense have been following The Patry Copyright Blog for some time now. And why wouldn’t we? In the area of copyright, there are few that can match William Patry’s credentials. He is the author of three copyright treatises, the most recent of which is a recently released, seven-volume, nearly 6,000 page opus entitled simply Patry on Copyright.

Patry now serves as senior copyright counsel for Google, Inc., but this appointment comes after a quarter century of work in copyright law as a professor; copyright counsel to the U.S. House of Representatives; policy advisor to the Register of Copyrights; and attorney in private practice.

So when William e-mailed me earlier this year to ask, effectively, would I mention Patry on Copyright in Copycense, my rather incredulous response was: “You are kidding me, right?” To me, that was the equivalent of Wynton Marsalis asking a musician if he could make time to sit in with the Lincoln Center Jazz Orchestra.

What follows is a portion of an hour-long interview in which Patry discusses his new treatise, his position at Google; the Google Book Search litigation; and why he thinks copyright terms last too long.

Editor’s Note: Over the next few weeks, additional portions of this interview will be made available on Copycense both in text and as the publication’s inaugural set of podcasts. Most of this interview also will be published in the June issue of Searcher magazine.

K. Matthew Dames (Copycense): I did want to ask you your opinion about a case that Google is not involved in, but is continuation of the term extension issue and gets into the public domain area. This is the Kahle v. Gonzales case that was decided at the end of January. Do you think that case was correctly decided, and what is the continuing effect on the public domain based upon this litigation?

William Patry: I heard the oral argument in the case, and I’ve read the opinion. The issue that the plaintiffs were advancing is “What is the correct standard of review?” That’s what the [Ninth Circuit] Court of Appeals was deciding, at least at plaintiff’s request. [The plaintiffs] wanted to go back to the trial court and have legislation reviewed under a particular First Amendment standard.

And the Court of Appeals said, “Well, we’re not sure that’s not the right standard because this isn’t a First Amendment case. This is a copyright case. So, we’ll take you on the merits and say ‘The argument that you made is the same argument that was made in the Eldred [case], and rejected.” Although, [the issue] wasn’t exactly the same because the statute was slightly different, and there were different issues [in Eldred v. Ashcroft] (.pdf).

In terms of a narrow reading of that as turning on either what’s the appropriate standard of review for legislation, or whether the Supreme Court had already taken a look at that, the [Ninth] Circuit’s view was that [the First Amendment argument] wasn’t the appropriate standard of review, but even if it is, we’re going to say that the Supreme Court has already addressed this. So, you lose: you don’t get to make your arguments [at the lower, trial court]

From a policy standpoint, I think the duration of copyright is way too long. Whether “life plus 50 [years]” was correct or not I think can only be answered by taking into account what we got internationally. There was never an argument that “life plus 50” was required to give adequate incentive; “life plus 50” had been the standard in the Berne Convention for some period of time, and the idea of shifting to that in the [Copyright Act of 1976] was … because it benefited us overseas. If I had the ability to write the copyright laws myself, I would probably make the term life of the author and that’s it. I think the [current] term is way too long from a policy standpoint.

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Technorati Tags: Copycense, Copycense Conversations, copyright, K. Matthew Dames, William Patry

“Raise your hand if you know that Google is being sued over its Google Book Search project.

“Of course, you know about this – everyone knows about this. Google’s announced in December 2004 that it would partner with several of the world’s preeminent research libraries to make digital copies of their collections and allow the text of those digital copies to be searched online. That announcement was so influential that it instantly provided legitimacy to digitization programs the world over in a way that thousands of information professionals could not.

“The announcement also ruffled the feathers of select groups of publishers and authors. Some of them ended up suing Google for copyright infringement in a New York federal court. These cases are pending.

“The Google Book Search (“GBS”) litigation has captured the fancy of information professionals nationwide. And as far as legal developments go in the information profession, the GBS litigation – with its high-profile, “Do No Evil” defendant fighting the comparatively less well-regarded publishing industry, and theories of fair use dancing around lawyers’ heads – is the sexiest legal issue out there right now.

“There are, however, two other issues that greatly affect information professionals as equally as the GBS litigation. Both of these issues – orphan works and Section 108 – have been under review and consideration from various groups for most of the last calendar year. Both issues likely will come to some resolution later this year. And like the GBS litigation, both issues will have a profound influence over the way information professionals use, copy, and access information long after this year’s initial determinations are settled into law or policy.”

A Searcher exclusive.

K. Matthew Dames. “Beyond Google: The Importance of Orphan Works and Section 108 Reform to Information Professionals.” Searcher. September 2006. p. 21.

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Technorati Tags: CopyCense, copyright, K. Matthew Dames