One of the beauties and frustrations of dealing with issues online is the immediate feedback loop and the possibility that such a loop amounts to little more than people talking at each other, rather than with each other. We experienced this last week, when we posted the following thoughts to our Twitter account (@copycense):

Empirical question: how much is it worth in publicity, goodwill for creator to use Creative Commons license vs. copyright registration?

Empirical question: How many creators involved in the arts actually take the time to learn copyright basics? How do they do it?

Empirical question: If creators don’t understand basic copyright, how can they reasonably distinguish between copyright & Creative Commons?

Would energy behind CC be applied better to calibrating U.S. Copyright Act of 1976 to be more neutral to citizen creators? (See Canada)

This chain of thoughts began while we watched a talk by filmmaker and cartoonist Nina Paley, whose film Sita Sings the Blues has become a “copyleft” cause célèbre. Film critic Roger Ebert, for example, has gushed praise on the film. Techdirt’s Michael Masnick has followed and railed against Paley’s plight. Paley, too, has been active in talking about her copyright clearance plight on her blog. The confluence of events has created an environment wherein another creator is held captive by copyright considerations. In this way, Paley has become the film equivalent of Girl Talk’s Gregg Gillis: all they want to do as citizens is clear rights easily and create.

The subtext of all this, of course, is “Why is this copyright stuff interfering with what I want to do?” In this vein, we continue to find amusing and interesting the how selective concern about copyright clearance, remixing, and related issues can be. It’s as if there are certain artists and works for whom copyright issues are real and significant, but other artists and works for whom the same issues either are not real, or unworthy of discussion. But we’ve already addressed this issue.

Typically, we use Copycense’s Twitter account as a news feed: it is quick, concise, and serves that purpose well. Occasionally, we post questions or thoughts to the feed, but usually expand on such questions or thoughts by writing on Copycense’s FriendFeed account. Regretfully, we did not do so with any of the four questions mentioned above.

A number of interesting responses ensued. Robert Richards of the Legal Informatics Blog (@richards1000) questioned the preemption responses we gave, in which we attempted to explain our theory that license contracts — and not copyright — may be the dominant legal regime in a digital information ecosystem. Then, a representative from Free Government Information (@freegovinfo) questioned our assertion that a Creative Commons license is an alternative to copyright; he opined CC works “on top of copyright.”

Mind you, all this dialogue was occurring as each of us were posting separate items on wholly different issues on our respective Twitter accounts. Given the way Twitter works, it is difficult to reconstruct the exact timeline of the posts, which would help the contextual understanding.

Instead of continuing to debate relatively complex ideas within the vacuum of 140-character limited posts, we have decided to address several of these issues here in a more expansive manner. Thus, this article will discuss preemption in copyright law, and why we feel that concept establishes license contracts as the dominant legal regime in digital and online software and services. We also will respond to our own aforementioned questions about Creative Commons licenses, and their role within the legal sector of the digital information ecosystem.

Preemption, Contracts, Licenses & the Consumers’ Choice

We have written before on the preemption issue (here and here), particularly as it applies to the limitations that most often apply to librarians and information professionals (Sections 110, 109, 108, and 107 of the 1976 Act). [Editor’s Note: The link to the second part of this two-part post goes to our backup site on WordPress.com because the original posting on the main Copycense site is broken.]

Preemption is a funky but important concept that simultaneously cuts across the Constitution’s Supremacy Clause in Article VI; Section 301 of the 1976 Act; and a raft of cases beginning with Judge Easterbrook’s 1996 opinion in ProCD v. Zeidenberg, 86 F.3d 1447. The preemption issue arises when authors’ or users’ copyright rights appear to be either enlarged or reduced by contract (such as in the instant example of a publisher’s contract to publish a journal article).

As to the general question whether contracts may deal with copyrighted material, the answer is obviously yes: former New York Law School professor Edward Samuels says in his wonderful book The Illustrated Story of Copyright [site] that the purpose of copyright essentially is to license one or more of the exclusive rights for economic gain. The preemption challenges are more likely to relate to the attempted contractual extension of copyright rights beyond those granted by the Copyright Act, or the reduction of the rights or copyright exceptions that users have traditionally enjoyed apart from contract. Most of ProCD’s progeny (which extends to several federal circuits) conclude that as long as the terms of the contract (which are written under state law) do not occupy the same area as that reserved to copyright law (which is federal law), then the terms of the contract under state law will be valid and binding. This principle validates all manner of license contracts, including clickwrap licenses, terms of service, and even privacy policies.

Therefore, our understanding of this issue is that once a contract is in place, the terms and conditions of the contract prevail over federal copyright law because a contract is considered to be a private bargain between private actors, whom are presumed to have equal bargaining power to negotiate the terms and conditions of the contract. (We assume the contract is otherwise valid under applicable state law.)

ProCD, a 7th Circuit case, often is cited as the prevailing doctrine in this area, but our teaching notes (for our private and iSchool seminars) indicate that the Third and Fifth Circuits hold differently. Typically, this is the sort of split that begs for a Supreme Court ruling; we suppose that case is coming soon to a theater near you, although apparently not in the 2009-2010 term (American Bar Association, SCOTUSWiki). We are not alone in presuming the preeminence of the ProCD doctrine: some feel it may extend to the patent field as well. To be fair, though, others question whether the ProCD preemption doctrine has as much teeth as many give it, arguing that the nature of the enforcement makes a significant difference. This is a concept that should be explored further, just not in this article.

If we use ProCD as the prevailing doctrine, however, then one could question whether any copyright exceptions are preserved in an information landscape awash with contracts that governs access to digital information and services. Therefore, it is reasonable to conclude that the contract — and not copyright — is the dominant legal construct that governs access to and use of digital information. Additionally, it is reasonable to conclude that copyright’s preemption doctrine sets up an interesting choice for consumers of digital information: your transaction can be governed by federal copyright law, or by state contract law (per the license agreement), but not both.

(Copyright owners, of course, may not be in a situation where they would need to make this choice. On one hand, copyright owners initially have access to both sides of the equation because copyright ownership under of one or more of the exclusive rights under federal law is a prerequisite to licensing such rights for economic gain under state contract law. On the other hand, according to the ProCD doctrine, once the copyright owner creates and enforces the license, that bargain is managed exclusively between the contract parties, and under state law. The distinction is subtle, but significant.)

This choice affects consumers in a very real and tangible way: if a consumer’s bargain moves outside the realm of copyright and into state contract law, then it seems the only way to preserve any copyright exceptions — including fair use under Section 107 — is to negotiate such exceptions back into the terms and conditions of the contract. That, however, is virtually impossible given our current model of e-commerce and the nature of unilateral contracts.

(By the way, federal courts consistently have rejected the argument that such agreements are not contracts because they lack of formalities [such as mutual agreement] or are against public policy [such as the policy against adhesion contracts]. The most recent, high-profile judicial rejection of this argument came in the iParadigms/Turnitin case.)

Even if one does not want to consider the ProCD doctrine as one that elevates license contracts over copyright, these contracts still remain a critically important of our contemporary digital information ecosystem. This raises the specter of Creative Commons and its license contracts as a reasonable (rather than restrictive) way to manage a copyright owner’s exclusive rights.

Creative Commons Licenses As Contracts

We have found Creative Commons’ growth and acceptance an interesting case study. According to its Wikipedia entry, Creative Commons (CC) has “generat[ed] interest in the issue of intellectual property and contributing to the re-thinking of the role of the ‘commons’ in the ‘information age’” and “has provided ‘institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely.’”

But if one gets down to brass tacks, what is Creative Commons? To the extent that Creative Commons creates contracts for creators of fixed works in a tangible medium of expression (i.e. copyright owners), we contend it is a copyright alternative, in the way that a state-based license contract serves as an alternative protective regime to federal copyright law per the preemption doctrine.

Interestingly, Creative Commons resists the “copyright alternative” label, claiming that its licenses “work alongside copyright, so you can modify your copyright terms to best suit your needs.” (At a minimum, this statement suggests that a basic understanding of copyright is a prerequisite to a basic understanding of Creative Commons licenses.) That may be true as it relates to one half of the copyright-licensing distinction, namely the prerequisite that only a copyright owner (or his authorized representative) may license one or more of the exclusive rights.

But what about the second, equally important half of that distinction, namely the ProCD theory that once the contractual licensing relationship is in place, it is that state-based, contractual association between the parties that governs the transaction instead of federal copyright law? Here, Creative Commons licenses are silent. If you look at the legal code for the CC licenses, they conspicuously omit a jurisdiction or venue clause. Whether or not the CC licenses would be valid under a specific state’s contract law as they are written seems to be an open question, one which CC itself tacitly acknowledges, since each license opens with the following language:

TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT, THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS. (Emphasis added.)

Contrast, for example, Google’s Terms of Service, a license contract for that company’s services that fixes contract jurisdiction in California. Again, the ProCD theory seems to suggest that this second half of the equation moves the bargain into contract territory, leaving behind copyright. In other words, from the end user’s perspective, one can have a copyright relationship with the copyright owner or a contractual relationship with the copyright owner, but not both. Therefore, it stands to reason that if the choice of relationship is contract, the consumer has excluded the copyright relationship, thereby making the CC license a copyright alternative from the end user’s perspective.

To us, then, the natural next question is whether the move from copyright to contract ultimately is widely beneficial, even under a CC license scheme. We don’t think so.

Is Creative Commons Good for Copyright?

When CC founding board member Lawrence Lessig announced in 2007 he was retiring from the intellectual property debate to focus on ethics, we wrote the “issues [related to possible strategic errors in the Eldred v. Ashcroft case] 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.”

But we also wrote in the same post “we’re a bit skeptical of the Creative Commons initiative because it moves copyright issues into the realm of contract law. … Instead, we think copyright should remain firmly a federal public policy debate.”

At the time, it would have been unconscionable to imagine copyright becoming a national policy issue in any country on the planet. Yet now, Canada is firmly entrenched in this debate, with Canadian citizens seeming to have as much voice in the process as lobbyists. Since organizing a citizens’ revolt in December 2007 on Facebook against new, restrictive Canadian copyright legislation, University of Ottawa law professor Michael Geist has helped actualize the virtually unthinkable: make copyright law a citizens’ issue. The connection between copyright and citizenship in a digital ecosystem has been our focus in this space for at least a year, and we applaud Geist and the Canadian citizenry for addressing these crucial issues.

But now that we have an example that citizen engagement in copyright issues is possible, it is appropriate to address again the issues about Creative Commons we first raised in 2007. Thus, our fourth and final aforementioned Twitter post becomes relevant: “Would [the] energy [put] behind CC be applied better to calibrating U.S. Copyright Act of 1976 to be more neutral to citizen creators? (See Canada)” This question is particularly relevant for U.S. citizens because of the ProCD doctrine, the doctrine’s implication that copyright owners are the sole arbiters of acceptable use of copyrighted works, and the doctrine’s suggestion that the parameters of such use are governed by the “four corners” of a contract that copyright owners alone have drafted.

We conclude now, as we did in 2007, that the continued use and prominence of Creative Commons licenses actually obscures the real copyright issues we face in this country, and keeps Americans from settling on the proper parameters of digital information use, access, retrieval and preservation in the 21st century. It is too easy for a creator to slap a CC license on a copyrighted work, promote one’s apparent knowledge of (and sensitivity to) copyright issues through a CC badge, and feel good about oneself, almost like the purchase of hybrid vehicle becomes one’s outward signal to society that its owner is dedicated to stopping global warming.

Indeed, there seems to be a whole aura attached to using a CC license — or perhaps more specifically, slapping that CC badge on a copyright-protected work — because it seems to signal that the person using the license is thinking progressively about intellectual property, information policy, and related issues. Although this, too, is an issue worthy of empirical examination (consistent with our first empirical question, above, about CC’s publicity value), we question whether Nina Paley’s Sita Sings … plight would have been elevated to cause célèbre status if she hadn’t adopted the CC license scheme and, by extension, the publicity machine that is attached to it.

But we believe the real question to be asked is how we can calibrate copyright law to make it equally usable by, and effective for, all Americans. To this end, we believe the use of CC licenses actually avoids the question of what U.S. copyright should be in the 21st century, and how the law should best serve its citizens, who now are as likely to be creators of copyrighted works as your average conglomerate record label. This avoidance is particularly problematic given the prominence and use of CC licenses; the organization’s position — real or perceived — as the antidote to a broken copyright system; and the very real possibility that few who use the licenses really know what they mean.

While we’re asking empirical questions, here’s another: what percentage of CC license users have read the “legal code” to CC’s licenses? If the typical CC user understands that language, then he or she can read and understand the Copyright Act of 1976. If the typical CC does not understand the legal code that supports CC’s licenses, however, then he is using a legal instrument with little understanding of what that instrument does and how it affects the balance of rights between the creator and the user. That user certainly will not be sensitive to the underlying policy ramifications of the ProCD theory, which (along with the lack of copyright registration) may be the issue that most diminishes the utility and effectiveness of copyright law to and for the average American citizen.

Arguably, the Copyright Act of 1976 fails to work for corporate owners of large copyright portfolios, but it cannot be reasonably debated that copyright law absolutely fails at serving the contemporary information use and creation requirements of the average American citizen. With copyright, what has been good for the conglomerate no longer is what serves the citizen, because the average American now has a clear vested stake in the nation’s information policy. As Canada is doing now, the U.S. needs to have deep, complicated, and perhaps even painful conversations about information policy; the history, purpose, uses and scope of copyright law and policy in our digital information ecosystem; and the reform that needs to happen in both areas.

We do not believe the Creative Commons license scheme fosters that conversation. Instead, we believe the scheme muzzles this conversation by promoting a contractual bargain in lieu of balanced and calibrated legislation and policy. We hope that in the future, Creative Commons will put more of its considerable intellectual and economic resources toward resolving the problems with copyright law instead of promoting contractual workarounds. In the best case scenario, with a balanced and effective law that serves citizens and corporate owners equally well, a Creative Commons license is unnecessary. This should be the goal.

Copycense on Twitter: http://twitter.com/copycense

Technorati Tags: Copycense, copyleft, Creative Commons, Girl Talk, Gregg Gillis, K. Matthew Dames, Lawrence Lessig, Michael Geist, Michael Masnick, Nina Paley, Richard Richards, Roger Ebert, Sita Sings the Blues, Techdirt, The Illustrated Story of Copyright

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

The news cycle has been abuzz about digital music and iTunes‘ ascendance to a position as the country’s leading music retailer. Likewise, the mainstream press has continued to feed its desire for an iTunes-Amazon.com octagon-style retail death match, and steadily has been promoting Amazon.com’s mp3 download service as a worthy challenger to the iTunes hegemony.

(The music labels, long irritated with Steve Jobs‘ control of the legal download market, silently would approve of such a challenge.)

We don’t see what the big deal is. There are several problems with music downloads, and none of them have anything to do with three-letter acronyms that purport to “protect” the underlying content. The primary problem with downloaded music is that it sucks.

(more…)

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.™

“The [music subscription] services also have to overcome a conceptual hurdle with many consumers. Most music fans want something tangible when they buy songs. Subscription services, however, are like cable TV: They sell access to entertainment, not packaged goods. And like cable, they’re not easily portable, which is a real problem when it comes to playing music in a car. It would be a different matter if people were continuously connected to the Net and could hear any song they wished, anywhere, any time. But in the current circumstances, music subscriptions work best as ways to sample music — not as a substitute for buying it.” — Jon Healey.

Jon Healey. If Yahoo can’t do it … LATimes.com. Feb. 4, 2008. Both a member of the Los Angeles Times editorial board and editor of the paper’s Bit Player blog, Healy asks whether subscription music services are a viable business model in light of Yahoo!’s announcement that it would end its subscription music service and support RealNetworks’ Rhapsody service. Since so many of us at the Cense are heavy music listeners and buyers, we can confirm Healy’s insights. Almost all of us choose to buy music on compact disc (then rip to iTunes) rather than buy music on iTunes or some other service. Not only do we get better sound quality when we buy and rip, we own something, which is important to us.

Copycense™: Incisive IP.™

Technorati Tags: Copycense

Eric Bangeman. Debating Copyright Reform: Time for Compulsory Licenses? ArsTechnica. Jan. 21, 2008. Ars reports on a copyright panel convened at the Consumer Electronics Show entitled Washington, Intellectual Property and Your Living Room, which was moderated by Ars editor Kenneth Fisher. The panel seemed fairly balanced, which is unusual for these panels, and everyone allegedly agreed some sort of copyright reform was necessary.

Surprisingly, though, compulsory licensing was discussed, and at least one panelist positioned compulsory licenses as a way of providing compensation in light of the fact that copyright owners no longer can control their works. There are two basic elements to the compulsory license issue. On one hand, a compulsory license would force media companies to license their works at an established, set rate. (For example, royalties for cover songs are paid according to a rate set in a compulsory license.) Additionally, it would eliminate the often licensing negotiations, many of which can be ridiculous and random. (The music industry, in particular, suffers this problem when it comes to digital sampling.)

On the other hand, U.S. Register of Copyrights Marybeth Peters is on record as opposing compulsory licenses because it hurts “creators.” As we mentioned last week, though, one must be careful with the label “creators”: are we talking about individuals, or multinational corporations that own and control the copyright monopoly? We’re unsure what Peters means when she refers to “creators.”

Nevertheless, this is the first time we recall hearing someone — anyone — talk seriously about compulsory licensing as an option worth investigating. Also, it is the one of the first times we can recall any person who deals with copyright for a living bluntly proclaim that control of protected works no longer is possible or realistic.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 29, 2008, edition of Copycense Clippings, where it was an Article of the Week selection.)

Copycense™: Incisive IP.™

Technorati Tags: Copycense

Gordon Cairns. Boxed Sets Exhaust Back Catalogue. Sunday Herald (Scotland). Jan. 28, 2008. The Herald is a new addition to Clippings, and its coverage of the UK DVD market suggests the film industry is beginning to feel the decay from which the music industry has suffered. The details are not encouraging: the number of DVD releases (through 3Q, 2007)dropped 15%. What’s more pressing, though, is that the candidate pool of older television shows that could be re-released is shrinking rapidly. Here at the Cense, we are big fans of American TV shows compiled on DVD box sets, but with each passing year, the offerings seem to become increasingly tepid. “Gilligan’s Island” is OK for an occasional trip down memory lane, but coughing up $30 to see Ginger prance around in the sand for more than 15 hours? We’re really not feeling it like that.

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

Copycense™: Incisive IP.™

Technorati Tags: Copycense