Law

Copyright Infringement and the Theft Metaphor

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Music | Tagged , , , , , , | Post a Comment
January 25, 2010 – 1:54 pm

I’ve got a new post up at Roots Music Canada, why copyright infringement isn’t theft, which draws on William Patry’s book, Moral Panics and the Copyright Wars, to explain that theft is a poor metaphor for copyright infringement.

Canadian law professor Stephen Waddams, in a well-regarded book about how we think about law, wrote that when a dispute arises about intangibles, such as copyrighted works, information, or… time,
“[T]he claimant is always eager to categorize the claim as proprietary. Thus, the conduct of the defendant is apt to be described by claimants as piracy, highway robbery, and brazen theft. This is rhetoric: the taking of a photograph, the re-broadcasting of television signals, the use of confidential information, or the copying of a design cannot, in fact or law, be piracy, robbery (on or off the highway), or theft, and if it were any of these things, the rhetoric would be unnecessary…

[...] Describing someone as a thief or trespasser is a metaphoric step in gaining property rights, and not the result of having a property right in the first place. If one already had a property right, the property owner would sue for violation of that right and would not have to strut around… blaring loudly about “piracy.”

[...]

Copyright owners [describe] their right as “intellectual property.” The purpose of advocating something as a property right is to take it outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified. Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as who break into our homes and steal our cars.

Copyright law isn’t about theft and clearly fenced-off property. It’s a set of social relationships between creators and the public, granting creators certain exclusive rights, for a limited time, for the benefit of everyone. Abusing the theft metaphor shifts the focus away from the fundamentals of copyright, making it difficult to have any sort of meaningful or fruitful discussion about copyright.

I think it’s possible to present an informed and intellectually honest case for stricter copyright laws, but table-thumping about how copying is stealing is neither of those things.

The post was in response to table-thumping by some members of the community that, “there’s no grey area, it’s theft,” and that “it is now completely possible for ISPs to identify and eliminate illegal file sharing.” It could be interesting if those folks show up in the comments…

Is There A Better Word Than “Balance” In The Copyright Debate?

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Free Software | Tagged , , , , , , , , , , | Comments (3)
November 13, 2009 – 9:42 am

Mike Masnick questions the word “balance” in the copyright debate:

I’ve long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the [benefits of the] creation of content is maximized. As such, there shouldn’t be a question of balance, because the ideal situation where content is maximized should make everyone better off. Talking about balance is figuring out how both sides should compromise to meet in the middle. Talking about maximizing content creation, on the other hand, is talking about ways to improve the marketplace of options for everyone.

He links to a paper by Abraham Drassinower of the U of T Law School arguing that balance is the wrong way to view copyright policy. “Balance” as a concept in copyright suggests that the law is designed to reward a content creator for their labour (the “sweat of the brow” argument), Drassinower argues, though Masnick has to tease out the main point: “Balance” falsely implies that this is a zero sum game, when “the goal of copyright should be maximizing the [benefits of the] creation of content overall, such that everyone is better off.”

I’m sold. I tried to use this point at the Toronto Copyright Townhall and in my submission to the consultation.

But, if not balance, then what?

Words like “balance” are used often to make sure that the interests of the public aren’t forgotten in the face of copyright holders’ interests. I strongly support the group, Fair Copyright for Canada, but “fair” has similar problems to “balance.” What words might serve to include the public interest without suggesting a zero sum game? Mike described it as “maximizing [the benefits of] content creation,” but that seems more useful in explanation than at the sound bite stage.

What about “calibrate?” I notice that Mike used the word in a subsequent post on why morality isn’t relevant in copyright: “A properly calibrated system is one where there’s the greatest overall economic good and everyone has the greatest opportunity to benefit” (strongly related — if it’s an economic question rather than a moral one, rights holders interests are not necessarily opposed to the public interest). “Calibrate” seems like the most accurate word. It doesn’t directly conjure up the notion of the public interest, but it does so indirectly by suggesting an approach that’s about more than “protection.” But it’s too technical for a mainstream audience.

Is there a more accessible synonym for “calibrate?” Optimize? It works, but “optimizing copyright law” seems a bit too vague, and doesn’t really capture the non-zero sum game and the public interest. Thesaurus.com doesn’t help much either.

So what else? I’m not sure. I like “calibrate,” but it won’t work with all audiences. “Optimize” is nice to use in passing to reinforce the point, but it doesn’t introduce it. “Balance” and “fair” are still useful for drawing attention to the interests beyond that of rights holders, but I won’t offer those terms without a caveat or disclaimer.

Other suggestions?

Copyright Consultation Submission

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Free Software, Music, Technology | Tagged , , | Comments (1)
September 15, 2009 – 12:39 pm

I submitted the following to the Canadian Copyright Consultation, a little hastily as midnight approached on the initial deadline. It’s built off the same notes I used to speak from at the townhall.

Copyright matters to me for a variety of reasons. I’m a musician, writer and programming. I was recently a student at the University of Toronto. I’m a consumer, a computer user. In my work and leisure I interact with the Copyright Act in hundreds of ways each day.

Copyright is a set of social relationships, an incentive that the government provides to creators on behalf of the public, for the benefit of all (including creators). Talk about balance can be misleading, if we consider it a zero sum game. In reality, with the right approach to copyright law, everyone should be better off (like any good economic transaction) — creators for having tools available which they can use to earn an income, the public for having more works created.

Copyright isn’t inherently good. It’s not simply, “the more copyright, the better.” The right approach to copyright depends on keeping these broader goals and interests in mind.

Some specific suggestions:

1. Abolish Crown Copyright.

The government doesn’t need to hold copyright on the works it creates. The government already has an incentive to create those works. It’s called an election.

2. Don’t extend copyright any further.

Copyright term should not be extended. There are already legitimate questions as to whether it is too long in many respects now. That’s a discussion and debate for another time. For now, we should commit to not extending it any further.

3. Flexible fair dealing.

Simply adding the words “such as” to the Copyright Act, making the categories of fair dealing non-exhaustive, would be a huge step forward. The Supreme Court has already ruled that fair dealing should be interpreted broadly, and this would allow for things like parody or satire under fair dealing, making the law in tune with how many creators operate in this country already.

4. Technology Neutral Approach.

Don’t ban specific tools or technologies. I use peer-to-peer file sharing technologies to access and distribute materials — both music and software — released under free licences, like the GNU GPL or the Creative Commons Attribution Share-Alike licence. There are artists and creators who use these technologies to legitimately distribute their works and reach a wider audience (even the CBC has distributed content through BitTorrent). If the record and movie industry had their way, technologies like the VCR would illegal. Clearly, these technologies can prove to be useful to both creators and the public over time, and can create new business opportunities as well.

Any changes to copyright law should focus on the act of infringement, rather than banning tools which may or may not be used to infringe copyright.

5. Any anti-circumvention laws should be tied to actual infringement.

There are plenty of problems with anti-circumvention laws, but if we are going to introduce them in Canada, they must be tied to actual infringement of copyright. Breaking a digital lock for an activity that would otherwise not be considered an infringement of copyright should not be an infringement of copyright. I need to break digital locks to access materials all the time. For example, I’m a GNU/Linux user, and I need to circumvent the digital lock inherent in the DVD format just to watch a movie on my computer.

Don’t ban circumvention tools — there are plenty of legitimate uses, and plenty of uses for them within the realm of fair dealing. Any anti-circumvention restrictions should be tied explicitly to acts of infringement.

6. Don’t implement an ISP levy.

I’m a member of the Songwriters Association of Canada. They do great work for Canadian songwriters. But don’t implement their proposal to “monetize file sharing.” It’s untenable and undesirable on a variety of levels: what if someone doesn’t download unauthorized content? what about movies, poetry, newspapers, and other content that’s shared online? how would money be distributed fairly (the internet is much different than radio, with a long tail of artists producing content)?

Plus, artists are already monetizing file sharing. Artists and companies are doing it right now. Canadian songwriter and musician Brad Turcotte, for example, uses the promotion he gets through Frostwire (a peer-to-peer file sharing application) to connect with fans, grow his audience so that he can book shows and sell merchandise.

Also, why would we increase the cost of connecting to the internet in a country that already suffers from limited broadband competition, and when broadband penetration is another important technological concern?

7. Don’t extend the levy to digital audio players.

Many creator groups have called for the levy to be extended to digital audio players. That would be a huge mistake, and it would be in direct contradiction to “withstanding the test of time.”

For example, the proposed levy on digital audio players in 2002 was $21/GB. That would make a levy on an 120 GB iPod today $2520! Certainly, the Canadian Private Copying Collective could lower the cost over time, but that would likely be in reaction to an increased absurdity. Adding a levy on digital audio players would discourage investment in that sort of technology in Canada, and inhibit the ability of Canadian creators to offer new business models (if it’s less affordable for Canadian consumers to acquire digital audio players, how are Canadian artists supposed to implement digital business models?).

Also, the digital audio player space is rapidly converging with other areas of computing. With Android devices and iPhones, the distinction between digital audio players and cell phones is quickly becoming a thing of the past, and netbooks and tablet computers are rapidly blurring the lines between mobile and laptop computing. To imposed a levy on “digital audio players” — whatever that will include 5 years from now — would be extremely short-sighted from the perspective of encouraging innovation and investment in new technologies in Canada, and all the new business opportunities which can be had from their widespread adoption.

8. Don’t legislate business models.

On that note, as a broader point, the Copyright Act should not legislate specific business models. Copyright can provide tools for creators to build a business model on, but, for example, in the area of music, much success in the digital environment has been had by ignoring rights granted by copyright (e.g. letting fans distribute music or remix it), rather than following the route copyright law would suggest (e.g. excluding others from those rights).

In order to foster innovation and creativity, the Copyright Act must not stand as a barrier to new ways of doing business and to new business models in the digital era. We don’t yet know what sort of system will support artists going forward. Rather than trying to build one into the law, the law should enabled creators and entrepreneurs to experiment with new business models suited for a digital environment — whether that means providing tools, or simply getting out of the way. A copyright law that is too prescriptive, with too many restrictions and too many assumptions about a particular business model (e.g. selling copies) runs the risk of impeding innovative business models that may take a different approach.

Canadian Human Rights Tribunal Declares Internet Hate Speech Law Unconstitutional

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Technology | Tagged , , , , , , | Post a Comment
September 3, 2009 – 6:06 pm

This post originally appeared on Techdirt.

The Canadian Human Rights Tribunal has refused to enforce a controversial internet hate speech law, claiming that it’s unconstitutional. The tribunal adjudicator, Athanasios Hadjis, expressed worry back in March about the “chilling effects” that Section 13 of the Canada Human Rights Act would have on the internet. In his ruling Wednesday, he decided that the restriction imposed by Section 13 “is not a reasonable limit” within the meaning of the Canadian Charter of Rights and Freedoms, and thus, unconstitutional. Since the tribunal isn’t a real court, it can’t actually strike down the law, so Hadjis just refused to impose any penalty.

Section 13 prohibits the repeated communication of “any matter that is likely to expose a person or persons to hatred or contempt” via telephone or — since 2001 anti-terrorism measures — the internet. The section is quite controversial; neither truth nor intent are a defense, and it’s not part of the criminal code, so it tends to become a vehicle for cases that wouldn’t stand a chance in a real court. Last fall, an independent review commissioned by the Canadian Human Rights Commission itself called for Section 13 to be repealed (an epic whitewash fail), and some politicians have begun to ask for the same. For serious issues, there are other hate speech provisions in the criminal code with real defenses, handled in real courts. Section 13 makes it too easy for someone to be “dragged through the process,” as Hadjis puts it.

Not only is the section controversial, but its application to the web has been clumsy at best. Hadjis said, when applied to speech online, “suddenly, the chilling effect catches not only individuals who set up telephone messages… but just about everyone who posts anything on the internet.” Hadjis notes that telephone hate messages tend to be overt, while opinions on the internet include many borderline cases. Part of the problem is that there are no safe harbors in Canadian law (or “safe harbours,” as we Canadians would call them). Hadjis was concerned that website owners could be charged under Section 13 for user comments on message boards and blog posts. While this particular website owner doesn’t seem like all that nice of a guy (to be charitable…), twisting the law to make a site owner responsible for user posts would have set a terrible precedent. Hadjis, thankfully, had the common sense to avoid that error. Hopefully Section 13 is repealed soon, and other tribunal adjudicators take note of Hadjis’ ruling in the meantime.

Read the comments on Techdirt.

Toronto Copyright Townhall: Canadian Record Industry Mobilizes In Panic, Everyone Loses Out

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Music, Technology | Tagged , , , , , | Post a Comment
September 1, 2009 – 12:45 pm

This post originally appeared on Techdirt.

Last Thursday, I attended the Canadian Copyright Consultation Toronto Town Hall (video). Despite the stated intention of soliciting a “breadth of perspectives,” the record industry dominated the event. Michael Geist described it as the “Toronto Music Industry Town Hall” and a local publication called it the “town hall that didn’t invite the town”. Tickets were limited and speakers chosen by lottery, yet half the speakers were from the entertainment industry — collection societies, record labels, industry lawyers. Twice as many industry representatives spoke as artists or creators. There was the odd librarian, student or programmer (and I had a chance to speak), but otherwise the participants seemed so skewed towards the same perspective that one person greeted the audience, “hello, music industry,” and some non-industry (though admittedly not very eloquent) speakers were heckled towards the end. When asked afterwards about the strong music industry presence, the Minister who ran the town hall joked, “I guess they had the night off.” There are lots of questions about the sincerity and efficacy of the consultations (though, also some indication that the government might take the time to try and get things right), but what was most disappointing, albeit least surprising, was what the entertainment industry actually had to say.

Most industry speakers presented emotional pleas, with little in the way of serious suggestions. They focused on a “right to get paid” and “fair compensation” (without talk of providing a reason to buy), while Canada was portrayed as a “lawless society,” rampant with property “theft” and hostile to “legitimate” business (despite evidence to the contrary). A writer stunningly declared that “[more flexible] fair dealing would be a disaster for creators,” while SOCAN claimed that adding “unwarranted” fair dealing provisions would be asking creators “work for nothing” (even though flexible fair dealing would be a lot like fair use in the US — hardly a disaster). The President of Warner Music Canada talked about disappearing jobs, and many industry employees painted a dire picture of colleagues and artists struggling to make ends meet (with little mention of any success stories). Yet, when the occasional concrete recommendation was made, it was to implement a notice-and-takedown system (ripe for abuse), extend the “you must be a criminal” tax blank media levy to digital audio players (an idea that’s been struck down twice), or enshrine an inducement doctrine into law — extreme measures which have provided little solace to failing businesses elsewhere.

It wasn’t argument. It was the language of moral panics.

The Canadian record industry was demanding to be lied to, to be told that more restrictive copyright laws will save their business. Though fewer and fewer people can convincingly tell the lie, they seemed perfectly capable of convincing each other that restrictive copyright legislation might somehow stop the market from changing (even with a decade of hindsight on the DMCA). It’s tragic, because hard working people who love music and love working for artists are losing their jobs, but the industry continues to block the sort of innovations that could provide it with a way forward. A lawyer described the music industry as a “copyright industry,” even though most artists and companies who are figuring out how to make money in the digital economy are successful despite copyright — not because of it.

Artist voices were few (nevermind consumer voices), which is disappointing because many Canadian creator groups are adopting more forward thinking approaches, proposing solutions that don’t involve criminalizing common consumer behaviour. Now… most creators echoed the industry in supporting the levy and its expansion to digital audio players and even ISPs, and some asked for new royalties and more collective licensing, but that’s much better than demanding stricter laws and enforcement mechanisms. The problem remains though, that although collective licensing may be a move in the right direction, short-term revenue from additional royalties and levies also increases barriers to innovation, making it harder for new sustainable long-term business models to emerge. Artists and creators need to find a way to earn money that’s based on a solid economic ground, instead of depending on levies that can quickly become absurd. That’s where the record industry should be able to help them out.

Artists and creators need to be able to experiment with new business models, but the copyright crutch gets in the way. They turn to levies and licensing because they can’t imagine how else to make money, but successes have been outside of the copyright system. Canada needs innovative companies to help artists and creators find digital business models, not to chase fictive legislative solutions. If the Canadian record industry isn’t willing to help creators with what’s next, they need to clear out of the way.

Read the comments on Techdirt.

My Comments at the Copyright Consultation Toronto Town Hall

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Music, Technology | Tagged , , , , , , , | Comments (19)
August 29, 2009 – 12:57 pm

Thursday night, I had a chance to speak at the government’s Copyright Consultation Toronto Townhall. I’ll post more detailed thoughts shortly, but in the meantime, Nick Dynice was kind enough to upload a video of my comments to YouTube.

I wasn’t expecting a chance to speak and hadn’t prepared much, but my name came up in the lottery in the last half hour or so. I’m not particularly happy with how I spoke — some parts felt awkward, and I had to cut other points due to time — but I’m glad could provide a different perspective compared to the ~80% of speakers who were folks from the music industry arguing for some combination of locks, levies and legislative responses to their business model problems.

ASCAP Thinks That Video Game Providers Should Pay Music Performance Royalties

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Music, Technology | Tagged , , , , , , | Post a Comment
June 5, 2009 – 8:27 pm

This post originally appeared on Techdirt.

Despite claiming to represent the interests of songwriters and composers, ASCAP has consistently provided bad advice on how they should respond to digital technology and the internet. For ASCAP and many other collection societies, anything that doesn’t involve royalties seems automatically bad (despite all the success from artists who’ve been freeing up their content), and other questionable practices raise serious doubts over how royalty money is handled once collected. Now, ASCAP wants to increase the toll on video games and is encouraging video game music composers to reserve performance rights (via Michael Scott). Typically, game developers purchase rights (including performance rights) from music composers, but ASCAP’s Director of Legal Affairs, Christine Pepe, argues that the practice no longer makes sense. She suggests adopting the model that was developed for film and television, where composers and songwriters often negotiate contractual provisions for performance royalties.

Not surprisingly, there are some major problems with the article.

First of all, Pepe cites Rock Band, Guitar Hero, Dance Dance Revolution and Stubbs the Zombie to highlight the prominence of music in video games nowadays. These are all cases of popular songs being used in games, rather than music being written for games… yet she’s presumably addressing people who write music for video games. Early versions of Guitar Hero used covers to make licensing easier, so composers weren’t even part of the negotiation. This licensing is about synchronization or mechanical rights — not performance rights. Labels have complained that these games aren’t paying enough for the music, but it’s the games that increase the value (and sales) of the music, not the other way around. These games could simply choose other good music and still be popular. ASCAP clearly doesn’t understand that, while music can add value to games, games add value to music. Pepe says that older video game music is “probably difficult to imagine… in a context other than the games themselves.” She isn’t trying very hard to use her imagination, as there are plenty of examples of older video game music having a life outside of the games. Would anyone care about the Mario theme if it weren’t part of the game? The lesson from old video game music isn’t that performance royalties used to be negligible. It’s that success for a video game music composer isn’t just about writing good music, but about having that music associated with successful games.

Second, Pepe’s argument that there’s a public performance of music in video games seems like a real stretch:

Now, because video games are being delivered by entities other than developers and on transmission-based platforms such as the Internet, there is no reason that composers of music for video games should sign away their rights. Take for instance, X-Box — it is now fully integrated with the Internet and allows users to stream games (instead of just purchase the physical product in the store). Internet-based services that now offer streaming of video games are causing the music contained in such games to be publicly performed. The providers of these video game services typically have or should have a license from ASCAP (and possibly other public performance right organizations). [emphasis mine]

What does “streaming” a video game even mean? A video game is interactive; it’s not a one-way broadcast, but communication over a network. Is Pepe suggesting that there’s a public performance simply because software communicates over the internet? Email happens on the internet. Is that a public performance? There’s such a thing as private communication over a network. Games like Gears of War, for example, allow you to play in co-op mode with another player in the same room or online. I find it hard to believe that the location of player two would determine whether or not the music is being publicly performed. What about a multiplayer game on a local area network? Why would that be any different, in terms of a public performance of music, from a multi-player game with everyone in the same room? Simply playing a game over a network doesn’t make it a performance, nor does that make it public.

But maybe Pepe isn’t referring to having players in remote locations, but having games in remote locations. She uses the Xbox as an example, which seems odd because, as I understand it, the Xbox Live Arcade lets you download games, but that’s quite different from streaming. It’s the video game equivalent of the iTunes Music Store, not an internet radio station. Digital distribution doesn’t mean public performance — the game is still played locally, just off a hard drive instead of a plastic disk.

Okay, so maybe Pepe was trying to talk about a platform that actually hosts and runs games on a remote computer. Still, it’s pretty hard to believe that just because software is run remotely it’s a public performance of the music, when the act of hearing the music would be indistinguishable if the software were run locally. Is it a “public” if I check my email using the Gmail web interface instead of Thunderbird? I have a music server running at home which lets me login and listen to my library from anywhere — is using that a public performance? Do I need a license to listen to my own library because it’s on a different hard drive? How does playing music in a video game become a public performance simply because of the hard drive the game resides on or the CPU that runs the process?

Furthermore, let’s pretend there’s actually public performance taking place. Is it even in a composer’s best interest to demand these royalties? (This is not about a composers “right to get paid;” composers are getting paid — upfront.) Making it harder for people to hear your music is rarely a good idea. Like with theme music for WKRP in Cincinnati or House in the UK, game developers may just seek other music if the licensing requirements are too burdensome. Focusing on getting every penny for every use of the music ignores the value of being included in a game, film or television show. The lesson from video game music of the past and present is that having your music included in a great game is extremely valuable. Not only are you getting paid to be promoted, but the game developers are even doing the hard work of getting fans to connect with the music! Rather than demanding compensation for every use, composers and songwriters should look at other ways to take advantage of the opportunity to make more money from the increased fan base. If ASCAP were really representing their interests, it would be helping them do this instead of pretending that the internet and video games are like television and insisting on performance royalties which will only get in the way of new business models. Of course, don’t expect ASCAP to promote anything that isn’t about increasing royalties. If your only tool is a hammer, everything looks like a nail… [or rather, as Hulser puts it: "if the only tool you sell is a hammer, you need everyone to keep buying nails."]

Read the comments on Techdirt.

Canadian Copyright Expert On Levy Proposals: Today’s Quickie Legislative Solutions Are Tomorrow’s Absurdities

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Music, Technology | Tagged , , , , | Post a Comment
June 1, 2009 – 11:54 pm

This post originally appeared on Techdirt.

Howard Knopf, a well known Canadian copyright expert, recently took a look at some of the failed copyright levy proposals in Canada. The Canadian Private Copying Collective (CPCC) administers the tax levy on blank CDs, which now accounts for almost 90% of the price. In 2002, similar proposals to extend the levy to DVDs and digital audio players were shot down. It’s a good thing they were! Knopf notes that the $2.27 levy proposed in 2002 is now about 10 times the retail price of a blank DVD, and the $21/GB levy proposed for digital audio players would have left a 120 GB iPod (<$300 CAD) with a $2520 tax. You might think the CPCC would have decreased the levies over time, but the blank CD levy was just increased this past December (blank CDs cost more in Canada than blank DVDs). Even if the levies were lowered, it would be because they had already become unbearable. Imagine the bureaucracy and battles at the Copyright Board, and imagine the effect on Canadian consumers, tech companies in the meantime (what if the Blackberry was classified as a digital audio device?).

The point is that these quick solutions aren’t solutions at all. Setting up “you’re a criminal” taxes to collect money for companies that can’t figure out how to adjust their business models is bound to block innovative new technologies, and you can’t predict what technologies will drive new business models. As Knopf puts it, “all of this shows that today’s quickie proposed legislative solutions and oft inflated tariff proposals to deal with supposedly serious crises arising from copyright and new technology are potentially tomorrows’ absurdities or even nightmares.”

Read the comments on Techdirt.

Music Fans And ‘Amateur Musicologists’ May Impact Coldplay/Satriani Copyright Battle

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Music, Technology | Tagged , , , , , , , | Post a Comment
May 18, 2009 – 10:44 pm

This article originally appeared on Techdirt.

In the April 2009 issue of Entertainment Law & Finance, three partners in the Intellectual Property Group at Kilpatrick Stockton LLP take a look at the role that “amateur musicologists” have played thus far in the copyright battle stemming from Satriani’s lawsuit against Coldplay for copyright infringement back in December. I’ll include relevant quotes from the article, since you need to register for a free account in order to read the PDF.

What makes this case unique is the lively debate that it has prompted, which will likely impact how this action and similar infringement cases will be prosecuted and defended going forward. Within days of the suit’s initiation, the popular Web site YouTube was inundated with postings in which fans freely offered their opinions concerning the merits of Satriani’s claims (or absence there-of). Some of these submissions were supported by surprisingly detailed analyses of the works.

We saw this in the comments on Techdirt, as there was a lively debate and people were quick to mention a variety of other songs with the same melody. The article also mentions a Canadian guitar teacher who uploaded some videos to YouTube with a detailed analysis.

The parties should take note of the prior art works that have surfaced as part of the public debate. Such works could prove to be helpful to Coldplay in defending against Satriani’s claims, as they could reflect that Satriani himself may have “unconsciously copied” from an earlier work.

This was written before Cat Stevens claimed that Coldplay was actually infringing his song, the “Foreigner Suite,” which was one of the similar sounding tunes people had noticed online. Anyone monitoring the online discussion about the copyright battle would have had this on their radar. Also, it was Cat Stevens’ son who brought the song to his attention, my guess would be as a result of discussion about the similarities online.

Or [prior art] may simply reflect these oft-quoted words from the Second Circuit: “It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of palgiarism.” Darrell v. Joe Morris Music Corp., 113 F.2d 80, 80 (2d Cir. 1940)

This quote reinforces the idea that there are only so many ways to combine chords.

What makes the Internet commentary regarding the two songs particularly interesting is that much of it replicates the type of expert analysis that both sides will likely use if the case goes forward. In music copyright infringement cases, it is rare for parties to rely solely on bare assertions of copying or independent creation. Instead, they frequently engage “musicology” experts to undertake detailed analyses of every element of alleged similarity between the two works and conclude whether all or portions of one work were copied from the other. The parties and their experts in [this case] should consider the analyses of the “amateur musicologists” that have weighed in via the Internet and other media, if for no other reason than they may be informative of how a jury might ultimately view the case…


While Satriani v. Martin may not go to trial for a variety of reasons, it is clear that user-generated content sites like YouTube have the potential to alter the way music cases — and other types of copyright case — are developed. Because advances in technology allow the public to participate in real-time infringement debate, future parties would do well to monitor this “chatter” as it could uncover evidence and theories that may be helpful to the case of the copyright owner, the alleged infringer or both.

The online discussion is largely what has made this case so unique. There have been successful copyright infringement lawsuits over melodies in the past (most notably Bright Tunes v. Harrisongs), but never has the public been able to participate so much in the debate. I think it’s likely that Cat Stevens’ son wouldn’t have known of the similarity between the melodies if not for all of the other people who noticed and highlighted it online. If the case does go to trial, the internet commentary may influence the strategy on both sides and serve as a preview of the arguments. If it doesn’t go to trial, the online discussion may influence any sort of negotiation as a means of assessing opinion on the merits of the infringement claim.

The melodies are undoubtedly similar, but the legal question is whether or not Coldplay copied from Satriani. It’s not just Coldplay’s word against Satriani’s, but music fans and “amateur musicologists” are gathering evidence and providing theories which are having a noticeable impact on the proceedings.

Read the comments on Techdirt.

Girl Talk On Remix As An Art Form

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Also posted in Free Culture, Music, Technology | Tagged , , , , , , | Post a Comment
May 16, 2009 – 1:21 am

This article originally appeared on Techdirt.

Greg Gillis (aka Girl Talk) recently participated in a live chat as part of a Download Decade series run by the Globe and Mail. Gillis makes music entirely from samples, combining existing songs in creative ways to make something new. His last album, which was offered as a pay-what-you-want download, used over 300 samples. Even though he’s been held up in Congress as an example of why traditional copyright laws might no longer make sense, it seems like a lawsuit is inevitable because Gillis doesn’t license any of the samples he uses. Yet, there has been no legal action to date (knock on wood!). Gillis argues that his sampling is fair use because it’s transformative, but that hasn’t been tested in court.

In the chat, he responded to a question I raised about why he uses a noncommercial license for his music (as he makes commercial use of others’ works), arguing that transformative fair use would still allow commercial use of his music and noting that his label suggested the noncommercial license as a “safe move.” Gillis was also asked whether he’s surprised that he still hasn’t faced a lawsuit, even though his profile has been much higher in the past few years.

Kind of. I believe in what I’m doing. I do not think it should be illegal. But at the same time, if you look at the history of sample-based music, it is somewhat surprising. Biz Markie, 2 Live Crew, Danger Mouse, Negativland, etc. Those are the people who laid the groundwork. They all had issues.

He notes that he was under the radar with his first couple albums, but since 2006, it’s been hard for him to ignore publications like the Rolling Stone and the New York Times talking about how he’s going to get sued. Yet, no lawsuits. He says times are changing.

The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet. So much content comes from pre-existing media. We’re used to it now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material. So the idea of a remix being a real artform is being validated in our culture every day.

Certainly, artists like Girl Talk, as well as others ranging from DJ Kutiman to the creator of the “rap chop” video, have been debunking the myths about “original” content, showing people that remixing can be creative and original and that it contributes to culture. Still, there are plenty of people who believe otherwise. Hopefully, Gillis continues to avoid legal troubles, though I don’t think things have changed so much that this isn’t still a huge risk. But, insofar as the remix is increasingly validated as an art form, perhaps a lawsuit would end up highlighting the limits that copyright law places on artistic expression nowadays.

Read the comments on Techdirt.