[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.

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

[Editor’s Note: This is the first of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Portions of this part were published previously as Dames, K. Matthew (2007). Trade Agreements as the New Copyright Law, Online, 31(2), 16-21.]

In this article, I detail how global trade agreements influence the Copyright Act of 1976, including an explanation of the U.S. Trade Representative’s role, the role of “harmonization,” and an analysis of how international trade agreements effectively circumvent Congress’ constitutional authority to enact copyright laws.

Traditional Path to Copyright Law

Just as every other federal law that is ultimately codified into the U.S. Code, this country’s official compendium of federal statutes, the development and ultimate passage of copyright laws happens according to a time-honored process. Bills that originate in the House of Representatives or the Senate will become law if the bill is passed by both houses of Congress and the President signs the bill. Once the bill becomes law, it will be published in the U.S. Code, which is the public and permanent statutes arranged by topic or subject. (For a fuller discussion of the U.S. federal legislative process, please see Charles W. Johnson’s classic guide “How Our Laws Are Made.”)

The Copyright Act of 1976 is codified at Title 17 of the U.S. Code. The authority for the 1976 Act (as well as the predecessor Acts of 1909 and 1790) comes from the Copyright Clause of the U.S. Constitution. Art. 1, sec. 8. cl. 8 states “The Congress shall have Power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Congress is, has been, and always should be the first and final drafter and arbiter of the Copyright Act. As Justice Ruth Bader Ginsburg wrote in the Supreme Court’s decision in Eldred v. Ashcroft, 537 U.S. 186 (2003), “[The Court has] stressed … that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” But in recent years, Congress’ role in enacting copyright law legislation has diminished. In order to understand how this has occurred, it is instructive to go back to 1988, when the United States became a signatory to the Berne Convention.

The Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) is an international treaty, first signed in 1886, that seeks to give creators some level of consistent copyright protection across the world. The principle that guides Berne is that where an author’s nationality differs from the work’s country of origin, the author should receive the same copyright protection as national authors. Further, the Berne Convention obliges all signatory countries to respect an author’s moral rights. (“Moral rights” is a term that describes the ability of authors to control the eventual fate of their works. The concept relies on the connection between an author and her creation, and protects the personal and reputational aspects of a creative work, rather than its monetary value. (See Betsy Rosenblatt’s primer on moral rights from the Berkman Center.)

The U.S. signed the Berne Convention treaty in 1988, becoming the 76th nation to sign. More than 100 countries are signatories.

From a practical standpoint, the U.S.’s adoption of Berne eliminated the need for authors to place a copyright notice on their work, and made copyright registration optional except in circumstances where the owner wishes to sue for copyright infringement in Federal court. For example, The the “no registration” requirement has had a significant and detrimental affect on digitization programs, since an item for which copyright ownership cannot be determined often is an item that is removed from the universe of digitization possibilities.

Further, the Berne Convention has been cited as the basis for domestic legislation such as the Visual Artists Rights Act of 1990 (which provides authors with some semblance of moral rights under U.S. law); the Digital Millennium Copyright Act of 199 (which protects digital works and has been the source of controversies too numerous to mention here); and the Sonny Bono Copyright Term Extension Act of 1998 (which retroactively lengthened copyright terms by two decades).

“Harmonization”

Additionally, the Berne Convention’s widespread adoption has helped usher a new term into the copyright lexicon: “harmonization.” I first recall hearing the term in the late 1990s, around the time Congress was debating the legislation that ultimately became the Digital Millennium Copyright Act (“DMCA”).

Simply put, “harmonization” is a concept whereby the intellectual property laws of different countries are made consistent, mostly to facilitate international trade and business. The concept of harmonization is not unusual; almost all the states and territories in this country are signatories to the Uniform Commercial Code (UCC), a model law in the U.S. that makes consistent (or “harmonizes”) the law of contracts, sales, banking, and secured transactions. This allows firms in one state to reasonably, predictably, and consistently do business with firms in another state.

Since each state has its own law—New York law is different from Indiana law, which is different from Texas law—it could be difficult for firms to do business across jurisdictions. The UCC facilitates interstate commerce by providing a core standard. States may deviate from it or tweak it—it is, after all, a model—but almost all U.S. states and territories have adopted the UCC’s core provisions into their state statutes.

National intellectual property laws work in a similar fashion. Intellectual property law is a national construct: U.S. intellectual property law differs from Spanish intellectual property law, which differs from Russia’s intellectual property law. Without an overarching, facilitating treaty such as the Berne Convention, there would be mass legal anarchy. This issue is exacerbated when the laws of different nations to problems and issues that exist exclusively online, where the notion of jurisdiction is vague at best, are applied. Instead, Berne allows U.S., Spain, and Russia to work from the same core intellectual property principles. Each nation has its own copyright law, but with a nation’s adoption of Berne, a core consistency is enforced.

From a linguistic perspective, harmonization suggests a voluntary coordination that the parties to an agreement will be held to the same, core standards and will be working under the same rules. Ideally, each country’s intellectual property laws should have similar weight and effect where harmonization occurs.

But in reality, harmonization of intellectual property laws is different. The term has become a euphemism for the global, one-sided spread of United States’ intellectual property laws. One could argue that under the guise of harmonization, intellectual property law has become America’s chief 21st century export. In the harmonization model, U.S. intellectual property law effectively becomes the world’s de facto intellectual property law, effectively overriding the voluntary coordination principle that should be inherent through the Berne Convention.

The dismissal of voluntary coordination occurs because the U.S. leverages its economic power to force other countries to adopt U.S. copyright law in lieu of their own if the U.S. thinks the foreign country’s laws are insufficient to protect American intellectual property. It is a “carrot and stick” approach: If a foreign country wants to do business with the U.S. (or get U.S. support to enter into the World Trade Organization), it must adopt U.S. copyright standards and codify them into their statutes.

For most foreign countries, this quid pro quo has become the price of doing business with the U.S. On the other hand, it is unusual that the U.S. would agree to agree to another country’s intellectual property regimen: It doesn’t have to. Therefore, harmonization really is doublespeak for a worldwide adoption of the American intellectual property standard. Much of this deal making happens through the Office of the U.S. Trade Representative.

The U.S. Trade Representative

According to its Web site, the Office of the U.S. Trade Representative (USTR) is responsible for developing and coordinating U.S. international trade, commodity, and direct investment policy and for overseeing negotiations with other countries. The head of the Office, Ambassador Ron Kirk, is a former mayor of Dallas whom President-elect Obama nominated to the position in December 2008. The Senate confirmed Kirk’s nomination on March 18, 2009. Kirk is a member of President Obama’s Cabinet and serves as his negotiator and spokesperson on trade issues.

Given intellectual property’s undeniable importance to the bottom line of several large U.S. companies, it is unsurprising that Kirk continues to make intellectual property protection a centerpiece of international trade discussions, much like his predecessor, Susan Schwab. Schwab thought the intellectual property issue so central that in late June she created a new Intellectual Property office within USTR. Schwab announced she was increasing resources and staff for the new office, including appointing a chief intellectual property negotiator whose priority is negotiating trade deals with China and Russia, countries that routinely are identified in the USTR’s annual “Special 301” review as being lax on protection of U.S. copyrights, trademarks, and patents.

The Workaround

There long has been concern that expansive language in free-trade agreements may raise the level of copyright protection above and beyond the international standards under the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights annexed to the agreement establishing the World Trade Organization. Now, arguably, the trade negotiation process has become a channel through which large, corporate copyright portfolio owners manipulate the trade agreement process to enforce a narrow, protectionist extension of copyright law, circumventing the traditional legislative process. Most of this work is done without notice to the public or Congressional hearings, so the first time those outside the process learn about the new arrangement—which has the effect of law—is when a USTR press release announces the trade agreement.

William Patry, author of the treatise Patry on Copyright, summarized this process in September 2006.

U.S. industry group X [insert software, publishing, music, etc.] goes to USTR and says we need new rights; please obligate the United States to provide for those rights in an international agreement, whether a new treaty or trade deal. Without public input, without congressional hearings, without legislation, USTR commits the U.S. to provide that protection. The Executive Branch then goes to Congress and says to Congress that legislation has to be passed on pain of the U.S. violating its international obligations. Congress complies.

This is the epitome of backroom, middle-of-the night deal making with cigars, winks, and nods, the stuff of local machines and voting blocs purportedly dismissed long ago as gross perversions of democracy. Patry also notes that these trade deals also pose a considerable threat to our notions of fairness and democracy in the political process.

“Whatever one might say about USTR, one cannot fairly describe that agency as concerned with the larger public good,” continues Patry. “There are serious institutional and policy issues with this trend. Initiatives to amend U.S. law should be taken up first by Congress; they should make sense as a matter of domestic balancing. Congress is the policymaker in our system, not the Executive Branch. Couching issues as trade issues or foreign policy is a too clever and dangerous way to make U.S. law overseas. It should stop for the public good.”

What about Congress? Many veteran political observers, including Thomas E. Mann and Norman J. Ornstein, authors of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, have accused Congress of totally abdicating its role as the first branch of government since the Sept. 11, 2001, terrorist attacks. On this issue, one would expect members of Congress to be offended at the suggestion that trade representatives know better what America’s intellectual policy should be. Instead, the Congress has failed to provide any resistance.

The problem was exacerbated by the “fast track” authority that presidents once held. “Fast track” is a procedure through the president has sole and exclusive authority to negotiate trade agreements. Elected members of Congress must agree with all of the terms and conditions of an agreement negotiated under “fast track” authority, otherwise it must vote against the entire agreement. President George W. Bush was able to secure “fast track” authority after President Clinton failed to secure it for his administration. This allowed Bush’s trade negotiators the authority to cut their own deals and bind the U.S. (as well as foreign countries) to those deals on a “take or leave” it basis. According to Public Citizen, presidential fast track authority (also called “trade promotion authority”) expired June 30, 2007.

While “fast track” has expired, the U.S. Trade Representative’s role in shaping foreign and domestic intellectual property affairs continues to manifest itself through the Special 301 process. We will address Special 301 in Part 2 of our three-part series.

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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.

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

Educause. A Blueprint for Big Broadband. (.pdf) January 2008. America’s standing in global broadband access and speed continues to plummet, and American consumers continue to pay more per capita for slower and less available broadband. (See data from the Organisation for Economic Co‐operation and Development for more information.) Educause blames America’s position on this country’s lack of a national broadband policy. (Foreign Affairs magazine addressed this issue in late spring 2005.)

Educause commissioned a white paper paper that proposes creating a Universal Broadband Fund (UBF) that will provide “open, big broadband networks of at least 100 Mbps … to every home and business by 2012.” Educause estimates the cost for this effort will approach $100 billion, but the organization proposes a public‐private partnership approach followed in Canada.

Why is this important? Simply, without widely available broadband in the States, all measure of technological innovation gets hampered. Hampered technological development means a slower economy; a slower economy means fewer jobs; fewer jobs means more unemployment; more unemployment means … well, you get the idea.

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Anna Ringstrom. Sweden to Charge Pirate Bay in Copyright Case. Yahoo! News. Jan. 28, 2008. Sweden’s involvement in enforcement efforts on the entertainment industry’s behalf is related directly to the Special 301 process and Sweden’s fear of being placed on a priority list (penalties for which include trade sanctions).

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On Copyright Reform. (.mp3) The Ottawa Citizen sponsors an hour-long debate on copyright reform in Canada. Lots of shouting and interrupting, but may be worthwhile listening if you want to hear frustrated content industry discuss the state of their nation. Check out, however, Michael Geist’s analysis of this session, in which he contends Canadian Recording Industry Association president Graham Henderson and others give tacit support to ISP filtering, which AT&T reportedly is considering.

(Editor’s Note: Copycense editors originally commented on this article in Site Check 2.03.)

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Paul Davidson. Google Could Cause a Stir in FCC’s Airwaves Auction. USAToday.com. Jan. 24, 2008. This story, and the coverage at InfoWorld, provide good introductions to the wireless spectrum auction and how it may affect everyday people. The airwaves that the Federal Communication Commission is auctioning are the leftover spectrum that will be made available once television becomes a digital-only proposition in 2009. (In other words, this year is the final year you will be able to use “rabbit ears” to watch television.

Starting in 2009, it’s either digital television or a subscription option, such as cable.) Google has won a petition to ensure “C” block spectrum airwaves are available to any wireless provider a subscriber wants to use. This allows Google to act as a service or application provider even if it does not win the auction. The spectrum auction began Thursday, Jan. 24 with more than 200 bidders — including Google, Verizon, and AT&T — submitting sealed bids. Winning bids could be revealed any time between late February and late March.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 29, 2008, edition of Copycense Clippings.)

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