ALA, ARL Release Guidance on Digital Delivery of Content to Classrooms
WASHINGTON, D.C. - The American Library Association (ALA) and the Association of Research Libraries have released a document titled "Performance of or Showing Films in the Classroom" to provide guidance on digital delivery of content to the "physical" classroom.

According to the associations, the Technology, Education and Copyright Harmonization (TEACH) Act enacted in 2002 does not provide librarians clarity on copyright exceptions for the digital delivery of content for distance education. Thus, understanding what is permitted under the TEACH Act in combination with the Digital Millennium Copyright Act (DMCA) and existing exceptions, such as fair use, is becoming increasingly confusing to many practitioners.

The 2009 Jeremiah Kaplan Institute on Libraries, the Information
Society, and Social Policy

"The Right to Information Access"

October 30, 2009
Penn State University, University Park Campus
State College, PA
The Hub Auditorium

 

Purpose of the Report
"Orphan works" is a term used to describe the situation in which the owner of a copyrighted work cannot
be identified and located by someone who wishes to make use of the work in a manner that requires
permission of the copyright owner. Proposed orphan works legislation, such as the Orphan Works Act of
2008 (H.R. 5889) and the Shawn Bentley Orphan Works Act of 2008 (S.2913), would reduce penalties
for infringement if an infringer "undertakes a diligent effort to locate the owner of the infringed
copyright." This statement describes what professional archivists consider to be best practices regarding
reasonable efforts to identify and locate rights holders. It is based on the authors' knowledge of the kinds
of materials that are likely to qualify as orphan works and on their professional experience in trying to
obtain rights information for such works in the past.
Although the statement focuses on unpublished materials because these are the types of materials that are
usually found in archives, the authors recognize that many of the techniques that are useful in identifying
rights holders for unpublished materials may also be useful in identifying and locating rights holders of
published materials.

he dominant project of cyberlaw is to parse the implications of the Internet's structural rules or "code." n302 Legal scholars seeking to explain the Internet's dynamism as a unified platform have emphasized a particular structural factor: the so-called "end-to-end" model. n303 An end-to-end network is one that pushes control out to the endpoints. n304 The network focuses on moving bits from one place to another, without considering what those bits contain. Any edge device, such as a computer or mobile phone, can add a new application, and those edge devices are solely responsible for factors such as reliability and security that ensure the success of that application. Because innovations do not require the consent or updating of the network core, those innovations can be deployed more quickly.n305 As edge devices become more powerful, which they do as computing power improves over time, their enhancements can immediately be joined to the network. So, new services such as Google, Skype, Hotmail, Facebook, and Amazon.com can catch on and grow rapidly, generating significantly more social and economic benefits than in a network like the PSTN, where central control nodes must approve new features. n306

The end-to-end model emphasizes only one side of the equation - the edges. The Internet gives extraordinary power to its endpoints, but it also embodies linkages between those endpoints, and between  [*400]  aggregations of systems that connect into a composite network. The fact that the edges of the network define the applications say nothing about how those edges are wired together. An endpoint can offer a brilliant innovation, but such innovation will be of no value if other endpoints cannot access it, or cannot access it easily. n307 Something more than the end-to-end principle must explain how the Internet holds together.

Kerbein, Glenn. "Pirate Party of the United States Official Website". Pirate Party of the United States. 22 July 2009 .

The Pirate Party of the United States's website is the most comprehensive point of reference for the US Pirate Party. The party's platform, activities and members are all found here. The site itself has a simple banner across the top with white stripes on a blue background and the US Pirate Party's emblem (a spin-off of the Swedish Party's with a star added to the sail and two ride stripes encircling it). The tabs at top navigate to more information including contacts and how to donate. The home page acts as a kind of blog to which members can post the most recent news regarding the party's activities. To the right is a list of links to Pirate Parties around the world. The US Pirate Party's platform focuses on nine different issues: The abolishment of the DMCA as a first amendment issue, the Rejection of the Concept of Online Piracy, the Right to Free Press, Patent Reform, the Right to Assemble, Copyright Reform, Government Transparency, Right to Privacy, Abolition of Digital Rights Management and Reform of Trademark. The platform definitely parallels the Swedish Party's, but there is a a very clear sense that the Party is not as strongly grounded and cohesive. The "pirate" analogy is woven into the plaform making it sound amateurish, sounding similar to an ordinary personal blog.

Many of the issues addressed could be combined as First Amendment issues, but they are each dileanated as separate problems. Compared to the Swedish Pirate Party, the US's party seems to expand to other issues (inclusion of right to assemble and the rather abstract notion that "piracy" as a term be transformed into something less negative (this might be a reaction to Lessig's point that the party will only promote piracy as a unlawful with their party name, though this seems to be a non-issue in Europe). The official site of the Pirate Party of the United States is useful in measuring the progress of the party in the United States.

This article aims to argue for the benefits of all scholarly journals being Open Access. Authors argue that non-open access journals are significantly detrimental to an authors' research impact. Their argument is that even if all journals charged an at-cost price for their content no (or very few) libraries would be able to afford all journals in this situation. The article gives excellent statistical information, including charts and grafts depicting the impact that Open Access has on citations, downloads, budgets, and institutional archive growth.

This article explores the benefits of open access publication to scholars and researchers in so much as Open Access will greatly increase their research impact because a ten-fold number of other researchers will be able to review their work. By referring to some of the statistics and information the authors of this article have compiled, I will further list the importance of why pushing publishers toward Open Access or "less astringent copyright practices" is of extreme importance in today's library fields. Undoubtedly, pushing information on why pushing publishers toward O.A. would help library's with their budgets, but also would increase library usage. However, I think it is also important to argue librarians have a duty to further scholarship, showing that O.A. helps facilitate research and increase citations and articles downloads will be an extremely efficient way of doing this.

Traditionally, librarians have been viewed as gatekeepers (among other things). However, Librarians (for the most part) view themselves as catalysts helping patrons getting the material they want as quickly and as "painlessly" as possible. For most patrons the ideal librarian is one who can find whatever information they need quickly, easily, possibly be able to teach them how to do it themselves, and -- most importantly -- do all of this for free. Most librarians, I assert, want to be the patron's ideal librarian. So, why then are librarians gatekeepers -- shouldn't librarians be ignoring copyright all-together in order to be the ideal librarian? The answer is that most librarians don't feel as if copyright law is some moral code they must abide by; rather, most librarians are afraid their library is going to get sued. Is having one's library being sued a legitimate fear for librarians? I argue that it is not a legitimate fear. In addition, library's and librarians have come to a breaking point in regards to copyright. Library's can barely afford the high prices for copyrighted material and most librarians believe there needs to be a universal embrace of open access in order for libraries to continue providing the services they have historically provided. Librarians need to be rebellious against copyright in order to push publishers away from price-gouging and the strangle-hold they have over their content. If librarians adopt an end-to-end policy, learn to circumvent copyright law as legally as possible, and know how likely it is that their library will be sued, then librarians will finally be taking a truly proactive and rebellious stance against copyright.

Mason, Matt. The Pirate's Dilemma How Youth Culture is Reinventing Capitalism. New York: Free Press, 2008.

After presenting the reader through a plethora of examples of how much our culture is dependent on piracy, Mason comes to the conclusion that we have reached "the pirate's dilemma." Much like the prisoner's dilemma in game theory (here the two prisoners are represented by individuals and companies trying to sell their products), the players will have to choose between cooperation with the pirates or fighting them. At this point if one player decides to join in with the pirates by competing and changing their business model, the other will lose. If they both join the pirates, then competition will be even tougher, but they will have a chance at remaining in the market, which they wouldn't if they choose not to participate and fight the pirates with laws. As an example of this model, Microsoft is Player A and decides to fight piracy and Player B is Linux who decides to cooperate with pirates through open source. Player B is ultimately the winner, their prize being innovation, competition, while Player A will remain inefficient and will lose profits.

Though Mason's ideas are intriguing, I think that he is just rehashing the general argument for open source, which most of his book supports through examples. I believe Chapter Two of this book will be most useful for my paper. Titled "The Tao of Pirates: Sea Forts, Patent Trolls, and Why we Need Piracy," Mason explains the use of Sealand as an autonomous state outside the jurisdiction of the UK and how it is the home of the "Royal Family of Sealand's" pirate radio station and the data sanctuary of HavenCo. The Pirate Bay recently tried to purchase Sealand after a damaging fire for 500,000 Euro to house their servers, but their plans were thwarted by the trial. Mason gives some brief information on the Pirate Party. In this chapter he also outlines the "3 habits of highly effective pirates" and encourages youth to look outside of the market, create a vehicle, and to harness their audience. What is most interesting about Mason's book is that he is giving directions on how to harness the power the privacy, which is already forward thinking and more evidence that change is inevitable.

 

This project is about the future of the Pirate Party, whether their recent attainment of an EU Parliament seat launches them into a promising future or if their strength is simply the tenuous reaction of young file sharers to the Pirate Bay trial. I would also like to address the party's focus on the retention of privacy and what the party could be capable of should they prove a tenable force in influencing internet policy.

TankGirl. "Pirate leader Falkvinge: 'Our enemy has no intellectual capital to bring to the battle'.” P2P Consortium Interview. 12 January 2008. 20 July 2009.  

P2P Consortium member going by the avatar of TankGirl, interviews Rickard Falkvinge, chairman of the Swedish Pirate Party. At the point of this interview, the Pirate Party has yet to gain a seat in the EU Parliament, but many of his responses predict the Party's later success. The questions are consistent with the Pirate Party's primary issues including the filesharing debate, privacy issues, and the spread of IPR revolution across Europe. In the first question, TankGirl mentions the adoption of the PP's principles by the Moderate Party and whether Falkvinge thinks that this is productive. He agrees that it is productive in applying pressure to larger parties, but he explains that the MP is "technophobically luddite" and does not understand the issues as well as he would like them to. The second question is about whether Falkvinge's vision of the IPR revolution, why is has its beginnings in Sweden, and will it eventually infect other countries in Europe and the world? Falkvinge explains that file-sharing issues seem to be strongest in Sweden today, which might be because they were slightly ahead in high-speed broadband access. He no longer gets asked questions about monetary compensation of artists in Sweden, meaning that they already understand that the debate goes beyond that. He is hoping that Sweden will set an example in Europe. He is less optimistic about the Pirate Party in the US noting that the party has much less influence on the political system. In response to the third question about privacy and integrity, Falkvinge explains again that file-sharing cannot be stopped, eventually it will be completely anonymous and that cell phone file-sharing would soon be ubiquitous. The last question addresses personal integrity and surveillance being instituted for "anti-terrorism reasons." Falkvinge gives a brief lexical definition of fascism and says to remember that we have brought the cameras into our homes ourselves. The best thing to do against the Big Brother Society is to be constantly vigilant of the government. Turn the eye onto them.

In this interview with P2P Consortium, Falkvinge answers more specific questions about the filesharing debate, most significantly the idea of an impending Big Brother Society that could potentially sweep across Europe. Falkvinge's thoughtful responses have a hint of the revolutionary, something that doesn't come out in his speeches and the Swedish Pirate Party blog.

The above article is a PR address from the Association of American Publishers regarding the infringement lawsuit brought up on Georgia State University by Oxford University Press, Cambridge University Press and SAGE Publications. The document gives the reasons why these three publishers felt it necessary to bring up charges against GSU and why it is important that the copyright they hold over their published works is important (mainly because of the significant funds they spend publishing their works).

 

http://publishers.org/main/PressCenter/documents/GSUlawsuitcomplaint.pdf

 

The above link directs you to the legal complaint in its original form. Using the above legal cliam and the press release to help decipher and guide me through this legal document will help me to better understand why the publishers feel they have been wronged by Georgia State University. The infringements listed by Georgia State University have most assuredly been facilitated by the library/libraries of GSU or at least exacerbated by the library/libraries.

 

I will use the above article as a way of understanding what was it exactly that publishers feel are significant reasons to bring up suit against an entity. By examining the stated reasons for the lawsuit, I could further research as to what could be done to eliminate the possibility of being sued for supplying copyrighted works to students, faculty, and staff by the university library. The above articles will help me to define in my essay what is sufficient cause for a publisher to take up suit against a university / library.

The above article revolves mostly around the the use of electronic reserves at university libraries and what copyright restrictions apply to the use of E-Res. Also, it discusses various court cases involving copyright and attempts to form a listing of percentages of work that could be used without infringement. By doing this the authors attempt to form a more 'objective' and concrete idea of what constitutes copyright infringement. In addition, the authors argue against using the Copyright Act of 1976 as a guideline for libraries, stating that it does not accurately depict fair use.

This article will be extremely useful to me because it attempts to objective numbers as to where copyright infringement begins and fair use ends. Also, it explains the awareness of copyright law by various individuals who work in and around a library. By using some of the information compiled from this article I intend to show how unlikely it is to expect a librarian to do the calculations and to have a cogent knowledge of what is fair-use and what constitutes infringement. Also, by concurring with this article's authors on the unreliability of the copyright act of 1976 to accurately define fair use for libraries will help to build the credibility of my argument.

 

Note: Lexis Nexis doesn't give persistent links (or else I am unable to find where they do) in order to retrieve this article simply search for "a lay perspective on the copyright wars" with only the legal box checkmarked and it will be the first result.

 

 

 

In this Lecture, Columbia University's University Librarian, James G. Neal, addresses the current environment of libraries in regards to copyright and open access. Neal's lecture mostly addresses the findings of the 108 Study Group which was formed to research copyright. Neal explains the current state of copyright, the findings of the 108 Study Group, and the framework necessary in order to facilitate a more open environment for publications and libraries. Neal's lecture defines the library as an all encompassing entity which disseminates information, a center for research, a publisher in its own right. Because of the library's role as a center for just about everything scholarly, the library has a vision of embracing legacy as well as current trends. The library is an information repository and a portal to information. Serving so many roles simultaneously makes the library at the forefront of the copyright war.

 

In my essay it will be important to state why it is the duty of the librarian to rebel against copyright in order to push for more open access. Neal helps define the library as the center of the copyright war, the very front of the action. By citing Neal and his 108 Study Group's findings, I will be able to convey the importance of the librarian to stand up against copyright in order to defend the very embodiment and idea of the library itself. Neal's article also gives information on the opninion of librarians and library organizations on the issue of copyright and open access. Using some of this information will help me to define how to faciliate a better enviornment for the sharing of intellectual materials.

 

U.S. Code Title 17 is the definitive legal resource for the U.S. Laws regardining copyright. This resource has relevant information on what constitutes copyright infringement and what actions are needed to remedy said infringements. 

I will use the above resource as a primary source. This source will help me to define exactly what copyright infringement is according to the law. The above material will help me to define what actions a librarian could take when addressing sensitive copyrighted materials. By knowing the extent of the law I could then determine what are suitable actions to take when coming in contact with something which is questionable -- and in turn what is definitively illegal -- in order to argue for what actions a librarian could take to "push the envelope" on copyright law.

The above articles attempts to comprehensively define Open Access, listing the various iterations of Open Access as it is defined differently by whom is using it. The article then tries to unify the definition of Open Access or at least define Open Access in their own terms. From which point the authors address the goals of the Open Access movement or what is the intended outcome by spporters of Open Access. The author gives a fairly decent job at illuminating some of the struggles toward the adoption of a universal open access policy, but also lists the benefits of a universal Open Access policy. The article gives multiple viewpoints to Open Access (Advocates, Critics, Observers)...

I plan to use this article as an information resource showing what benefits there are to Open Access resources. By using this articles definition of Open Access and mentioning some of its lofty goals for Universal Open Access, I intend to show in my essay what the benefits would be for Librarians to push publishers toward open access by knowing ways "around" copyright. In other words, I will use examples from this article to show what benefits there are for librarians to legally circumvent copyrighted materials and "play dumb" when it comes to copyrighted works.

This resource aims to address as many legal aspects of copyright infringement that the site's authors deem are most relevant to instruction and libraries. The site acts as a bibliography or index to various topics within coypright right law and links the user to a main source of information on each specific topic. In addition to linking to various topics on copyright law, it also links to legal information on copyright law and how it pertains to libraries and instruction. Under each section and sub-headings are abstracts explaining what is covered under each topic.

The following resource is an invaluable tool for addressing specific copyright concerns of libraries. After researching what each of the concerns are and making note of them, I will then be able to click through to find out more information on each specific topic. Though likely not a comprehensive source of copyright law which specifically affects libraries, it seems to be fairly wide ranging and well written. 

The following article compares copyright law in so much as it involves document delivery (or Interlibrary loan) in different countries: Australia, Canada, Germany, the United Kingdom, and the United States. The section of the law, deemed most relevant by the author, is listed and an examination of the law is undergone. The author tries to re-explain the word of the law in laymans terms and make it more approachable to the average reader.

I plan on using the following article to get a better understanding of how copyright law differs in western countries and how it affects libraries and their ability to provide free documents to patrons. Using the authors explanations will help me to get a better grasp of "legal-ese," so as to better understand U.S. Law when conducting my own research.

Falkvinge, Rickard. "Copyright Regime vs. Civil Liberties." Google Tech Talks, Google Headquarters Mountain View, CA. 31 July 2007.

Falkvinge begins this tech talk by noting that the strength of the Pirate Party comes from the youth today. He predicted that with the 35,000 votes coming of voting age by 2009 might just place someone in Parliament in the EU elections. Falkvinge's presentation is broken down into three parts and ends with questions from the audience. The first part is an introduction to who he is and what the Pirate Party's agenda is all about. He outlines what is already noted in the Declaration of Principles, but adds to this comments that filesharing vs. copyright is like trench warfare and that it is not about the money anymore but about civil liberties. The second part is a history of copyright beginning with the Catholic Church (this is much like the outline of the Steal this Film documentary series). He emphasizes that copyright has always been for the benfit of the distributors and not the creators. The final party of the presentation is on his vision of the future. Again, he reiterates the Party's core beliefs about copyright for commerical use early, reducing the term to five years, enouraging non-commercial collection, use, derivation and uploading. He expresses the opinion that file sharing and open access to all culture and knowledge through technology will be as significant as libraries. Falkvinge then turns to the political strategy of the party. He notes that politicians are too preoccupied with other issues to pay attention to copyright reform, but should the party gain enough influence, that they might begin to pay attention. The Pirate Party is satisfied not taking on any other political stances outside of IP reform and as just existing as a tie breaker. Finally, Falkvinge brings up the fact that Swedish copyright law cannot be changed by the EU, but at the same time, the EU will need to protect Sweden from any trade sanctions from the US.

Falkvinge's presentation is useful because it is a more organic representation of the beliefs of the Party. The party at this point feels less "rebellious" than its image in the public media. Falkvinge is extremely thoughtful in his opinions and is clearly an expert on how to promote the party from the bottom up, raising awareness all over Europe.

This is from Gerd Leonhard's 2009 book The End of Control. Leonhard is a media futurist and writer.  He discusses how the record industry has attempted to control their product but ultimately failed. The music industry must admit to what is happening and let go of there old economy business models and belief that content is king. They must accept it fast as the longer the wait the more they have to lose. Advances in technology such as memory sticks, iPhones, wireless hard drives / music players have made file sharing easier and easier and its popularity will grow exponentially. Record companies must embrace the end of distribution control and stop harassing their customers with lawsuits and threats. They must move to a service based model.

 

 Leonhard proposes blanket licensing as the best solution. Existing public performance blanket licenses given by collectives are easy to get and make economic sense. The system is straightforward and benefits performers and artists but a new method will be needed for the internet. A blanket scenario would work best and he likens music to commodities such as water or electricity in that everyone should be a legal user. However, it is important to recognize in any discussion that music can be consumed unlimitedly, thus in determining the appropriate fee, TV is provided as an example. Flat rates could be connected to service or other methods.

 

 The article's most interesting topic is its emphasis placed on control. Music companies still hope to maintain control of their product which does not make sense considering how uncontrollable it is. The movement of data has become so commonplace that controlling it seems almost ridiculous. Record companies have no other choice; they should strongly consider the prospects of blanket licenses. Flat rate licensing would work better as it would get money to creators who are not being served properly by the groups trying to represent them. I think this is probably the reason voluntary collective licensing has still not hit the mainstream. Middlemen like record companies realize their role will be diminished in a world where artists can provide their product directly to their fans.

 

The Higher Education Opportunity Act written in August 2008 contained a few mentions of file sharing on campuses. The act addressed three main areas. First, students must be warned about illegal downloading and illegitimate P2P file sharing. They must be notified about potential repercussions such as civil and criminal liabilities. Next, institutions must certify that they have developed plans to combat the unauthorized distribution of copyrighted materials including technology based deterrents. Third, they must, to the extent possible, provide alternatives to illegal downloading.  The timing for this is 1 year after the Act was signed.

The Act is quite specific in its requirements. Universities must both combat and provide solutions to the peer-to-peer file sharing dilemma that has run rampant on college campuses since the creation of Napster over a decade ago. Numerous attempts of other services have been tested, but all have failed the ultimate goal of compensating creators and giving students the music they want. Ruckus was the most recent failure. With the Act in place, universities must address the issue in the near future giving Choruss a unique opportunity as it is backed by both labels and file-sharing proponents. The controlled nature of campuses and use of a central ISP makes them a very attractive place to test the subscription model and this will be important to watch develop for the future of collective licensing.

The editorial by Reihan Salam discusses the benefits and issues with voluntary collective licensing. Four music companies (Universal, Warner, Sony BMG, EMI) control 90% of all record sales in the U.S and have blamed piracy for the 40% decline in music sales over the past decade. Some opinions in the article describe voluntary collective licensing as a "music tax" or even an extortion scheme. Issues such as the masses paying for the actions of a few and the recording industry gaining too much are reflected. Salam believes the system is actually beneficial as it rewards smaller artists and will help creativity. If artists are not compensated and royalty streams dry up, they will in fact stop recording.  I do not necessarily subscribe to this as plenty of musicians do so out of passion not profit.

 

The part of the article that is most interesting is related to Apple, which record companies believe has a virtual monopoly on music downloading and must be kept in check. Voluntary collective licensing helps record companies ease their reliance on the software. Apple's counter attack to voluntary collective licensing is also discussed which poses an interesting proposition. A one-time fee on an Ipod purchase would give purchasers access to all music available on the iTunes website. The reason this hasn't yet happened is price and that it further entrenches Apple in its power against record companies.

 

Additional concerns are raised about how VCL would hurt independent labels; the other 10% of record sales and with the Apple plan its effects on other music software programs. It also discusses what actually may work best and sides with William Fischer’s book Promises to Keep and its strategy of an actually government music tax. Such a strategy would benefit artists and consumers but may cut out the powerful RIAA, which is well liked by the current administration.

 

The Apple tax idea is interesting and one that sticks in my mind, but again grants power to Apple who the record companies are too dependent on already. If an agreement was reached, I think it would be revolutionary but still limit consumers full access to the world’s music catalog as iTunes only holds a small percentage of all music available.

This is a New York Times article written by Eric Pfanner in January 2009. It discusses a proposal by the Isle Of Man to test voluntary collective licensing. For $1.38 a month, the eighty thousand residents, who all have broadband access, would be able to download unlimited amounts of music. A fee would be collected by the ISP. The music industry estimates that currently 95% of tracks distributed online are pirated and this is a potential solution offered by the Isle.

 

The article discusses European perspectives on the issue and they do appear to be farther along than the U.S. A similar proposal made it Parliament in France, but it was eventually rejected after a fierce battle by copyright holders. Currently European countries seem more interested in the idea of holding ISPs responsible for illegal downloading on their networks. They have also proposed ideas including a 3 strikes your out rule and the banning of individuals from broadband access. While these idea are taking shape in the U.S., it seems unreasonable to hold ISPs responsible for reporting their customers actions. It also could create competitive advantages for those ISPs who refuse to participate and also distrust in them in general. Similar to phone tapping under the Patriot Act, it impedes on individuals freedom without the concerns of national security. It seems to be another example of the record companies alienating their own customers and building ill will and holding onto their past control ideals vs. adjusting to the future and the fact that file sharing is here to stay.

The article brings up some interesting questions on what is remaining up in the air with the Choruss service. One of the biggest concerns is the what methodology and technology to use to track downloading which is a key component of the concept as artists are eventually funded based on their popularity. Cost also seems to be a concern and the appropriate method to actually charge the fee is still up for debate. Whether the school picks up the cost or passes it on as an activity fee is not yet established and past results have shown students are unwilling to pay. Certain leaders feel Choruss is nothing new and the same concerns exist that made past sites fail. However a break-even analysis of the current cost to protect against illegal downloads on university IT departments vs. the Choruss model may make it feasible. It also is important to find something soon as only 25% of schools currently have some sort of alternative which need to be in place by August 2009 per the Act.

 

What I find interesting in this article as universities will be the testing grounds for voluntary collective licensing. This seems clear and makes sense as universities are often first adopters of new technology and provide a microcosm to work out any kinks. The insight provided on the cracks in the mirror of the model is important.  The devil of the plan is in the details. If Choruss can work out appropriate royalty distribution strategies that creators agree with and help protect against opt-outers and other issues, it gains credibility. After which plans to scale the model become more reasonable.

 

This transcript is from Jim Griffins keynote speech about Choruss at the Digital Music Forum East in March 2009. Jim Griffins heads Choruss, LLC is a non-profit organization created and supported by major music labels. Choruss aim is to provide voluntary collective licensing to universities. It amazingly is backed by both the RIAA and EFF, who usually are on opposite sides of the music file-sharing issue. Choruss would act as a collective pool and then distribute royalties to artists based on various metrics.  

 

Mr. Griffins discusses the need for a new business model in the music industry as technology has completely changed the game. He states, "It’s a fact of life: If your business model depends on controlling or getting paid for copies of zeros and ones, you may need to look at a new business model." He explains how collective licensing has existed in various industries in various forms and now is no different. Mr. Griffins then specifically addresses a Billboard editorial written by Chris Carter on the issues facing voluntary collective licensing. He provides mitigating arguments to the issues including lack of data to allocate funds, legal implications of collective licensing, opt-in / opt-out, label favoritism, and implementation challenges. He further discusses that this is not an academic pursuit but rather an actual attempt at monetizing and regulating piracy. He stresses that the creation of the system will also expand the market and uses the Copyright Clearance Center as an example of past success. Choruss has the goal to test various systems and eventually make paying for music fast and simple because doing so will release the floodwaters for money to flow.

 

Mr. Griffin is basically heading up the idea of voluntary collective licensing and is the initiatives public face and voice. This transcript gives a cohesive response to critics of voluntary collective licensing. By addressing the concerns of Mr. Castle, he has provided counter-arguments necessary to push the discussion on this revolutionary concept. His answers are based in reality and admit the concerns faced but are optimistic and derived out of reason.

Chris Castle is a California attorney who represents clients on music technology and public policy. He wrote this editorial in January 2009 and takes a much needed look at the problems with voluntary collective licensing and ISP taxes. He explores what would happen in a world where suddenly downloading music is free. The main issue he brings up is without any legitimate proven tracking sources, ISPs would basically be providing good guesses on how the fees garnished should be distributed. Other concerns he raises are about file quality, illegitimate lawsuits and the lack of feasibility of the plan in actual implementation. He further comments that the record industry would be exchanging one form of uncertainty for another.

 

The editorial further accuses proponents of voluntary collective licensing of ignoring the positive results in the billion dollar industry of quality digital content such as Hulu and Itunes which are experiencing successful growth. The author questions how collective funds would be distributed with no good data and the addition of another middle-man pulling money out of artists pockets. Questions are also raised about any promises to not sue ISPs, especially by those who opt-out of collective licensing. ISPs will also face issues related to other content illegally downloaded on their sites like images, movies, etc. and international trade agreements that may be tested.

 

While voluntary collective licensing on a topical level sounds great, Mr. Carter raises some very legitimate points and the issues that could be present in actual practice. ISPs will have to take on additional duties and are vulnerable to attack for participating as a middle-man whether it be voluntarily or involuntarily. Consumers may also be at risk in a world where authorized and unauthorized works are at their fingertips with no clear ability to distinguish between the two. If this is the case, lawsuits may continue unabated.

This is Chapter 6: An Alternative Compensation System from William Fisher III's 2004 book Promises to Keep. Mr. Fisher is the Hale and Dorr Professor of IP Law at Harvard and Director of the Berkman Center for Internet and Society. This is a very comprehensive discussion of the creation of a governmentally administered reward system for music and movie file sharing. Its basic premise is musicians or filmmakers would register their work with the copyright office and be given a unique identifier that would be used to track downloads of their work. The government would enact taxes which would be used to create a central fund.  Using techniques created by television rating agencies, performing rights organizations, etc. the government would determine what frequency the work was used. The artist would then receive their royalty payment. The benefits would be consumers would pay less for more entertainment and artist would receive their fair share. Distribution companies would largely become obsolete over the long run. Society at large would benefit with less litigation and transaction costs. 

 

The chapter goes on in detail to explain the various components of the plan. It also performs a deep analysis into revenue sources to determine the financial impact of the system. In the end, Mr. Fisher determines a tax of approximately $27 per year per household would make the system work. Concerns with this do exist such as consumers potentially supporting music they are morally or ethically opposed to. Another funding source could be taxes on the goods and services that are used to gain access to the media. Items such as ISPs, mp3 players, etc. are all explored and in the end an approximately tax of 12% is calculated as being appropriate. This is very deep and thoughtful analysis on what the actual numbers are that is helpful in pushing the discussion of voluntary collective licensing forward.

 

The chapter raises very important issues about voluntary collective licensing including derivative works, artists gaming the system, the inadequacy of the current copyright office, and how to create an appropriate sampling system. This is deep dive is essential to my research project as it peels back the surface to explore further ideas that will have to be confronted as the method moves forward. While a required government tax may face strong opposition, the idea of taxing devices is logical. My other concern with this strategy is the involvement of the government as the EFF plan to have non-profit collectives seems more in-line with letting the market do its work in maintaining innovation and efficiency.

This is The Songwriters Association of Canada’s proposal for monetizing file sharing of Canadian music. It lays out a voluntary collective licensing scheme similar to that proposed by the Electronic Frontier Foundation. The plan highlights its unobtrusive nature which will basically let consumers continue to download music as they wish but remove the legal risks and legitimize their actions. Consumers would have unlimited access to the world's music collection both preserving and fostering its growth. The association believes the voluntary collective licensing method will usher in a "Golden Age of creativity."

 

The background of the proposal provides some interesting statistics on music downloading. The estimate 98% of all music is shared and only 2% is actually purchased obviously indicating that sharing is the preferred method of the public at large to access music. The proposal also argues that legalizing file sharing would increase the amount of high quality virus-free music available as only 6mm of the 100mm recordings created are available on legal sites. Legitimizing file sharing will hence increase society's access to all music promoting the arts. It will also answer the most important dilemma: compensation for creators.  

 

The proposal is an amendment to the current copyright act instituting collective licensing and the payment by consumers of a monthly fee on internet and wireless accounts. This would basically be a government tax but with an opt-out option. Consumers could sign documentation stating they will not share files and face penalty for breaking their agreement. Creators could also opt-out. The proposal would not only benefit consumers, but also ISPs and the music industry. ISPs would receive an administrative fee and record companies would finally receive compensation for file-sharing. The collective would be responsible for tracking music file sharing and distribution of royalties and could be outsourced to firms currently doing similar work.

 

Overall, the system seems very reasonable and a solution to the secular downward trend facing the record industry. The proposal is broad in its strokes, but it is the details of voluntary collective licensing that make it difficult which are not addressed. Issues such as how royalty streams are fairly distributed, misuse for non-music materials, cheating by artists, impact on record companies and current providers of legal file sharing are not fully tackled. Still the proposal takes the next steps necessary to move the method forward.

This is Fred von Lohmann of the Electronic Frontier Foundation's whitepaper on voluntary collective licensing.  The EFF has been a proponent of the idea since 2004 and put its seal of approval on current attempts to give life to the idea such as Choruss. The idea has gained traction with both Warner Music and Universal expressing interest. There has been a plethora of comments by writers, bloggers, panel discussions regarding the subject.

The paper presents voluntary collective licensing as a method to combat digital music piracy and create a legitimate revenue source for the flailing music industry. It lays out the precedent, the idea, the logic and the advantages. Voluntary collective licensing could be a way to monetize file sharing and hence provide the creators with compensation for their work, but at the same time provide consumers with what they have wanted all along, complete and uninhibited access to music. Since the creation of Napster, peer-to-peer file sharing has resulted in a secular decline of the music industry. Even through numerous evolutions and legal battles, file sharing has continued illegally and impacted recording artists. Consumers have been sued and accused by record companies of piracy, all of which has resulted in ill will towards record companies and little revenue generation for artists. Lohmann lays out the reasons voluntary collective licensing is needed including artists deserving to be compensated for their work, file-sharing has become the normal mode of music distribution, fans are in fact the best distributors, decision makers and preserves of music and finally the importance of letting the market drive innovation more than the government.

Voluntary collective licensing is compared to the system currently used by radio stations and insights are provided on how the concept will alleviate piracy in the music industry. The idea  is to form "collecting societies" similar to ASCAP, BMI, and SESAC which provide music fans with unlimited downloading in exchange for a reasonable monthly fee. The fees would be collected through a variety of sources including at the ISP, university networks or subscriptions (similar to Rhapsody). All money would move to a central organization who would distribute compensation to artists based on popularity of their music, the technology for which already exists. The whitepaper further answers the most obvious questions including antitrust, division of money, and the impact on unwilling artists.

The Higher Education Opportunity Act made it mandatory for universities to provide alternatives to illegal peer-to-peer networks.

 

As I sit in the Weigle Information Commons, in front of an empty tag cloud, watching Anthropology students rush to get their mash-ups "ready," a cumulus forms in my head. No_Thesis_mash_up_Copyright_appropriation...A myriad of questions form around this idea of appopriating other people's work. What is ownership? What does it mean to take other people's images? What does it mean to make money from other people's images? What is the framework for evaluating the legal from illegal? From Cornell to Darger to Koons to Rauschenberg to Fairey, appropriation seems to straddle the line between big house and art house. This paper will examine the many implications appropriation has on art, artist, and viewer.

Heller, Steven. "Shepard Fairey Is Not a Crook." 10 Apr. 2009. <http://themoment.blogs.nytimes.com/2009/04/10/graphic-content-shepard-fairey-is-not-a-crook/?hpw>.

The author is Steven Heller, former art director at the New York Times and current co-chair of the MFA design department at the School of Visual Arts. The blog entry is a response to Mark Vallen's Obey Plagiarist Fairey essay which attacks Fairey for using Chinese and Russian propaganda imagery. He labeled the acts misappropriation. Heller's article begins by briefly laying out the Fairey vs. AP court case. This case is perhaps the most current high profile copyright lawsuit. Its decision will be extremely important for the mindset of artists. The decision will either encourage or discourage appropriation art. The uproar surrounding the Hope image is yet again an example how in copyright everything is but black and white.

The author argues Fairey is not a thief. Heller thinks the usage is protected under fair use. His work in general acts to criticize media's consumer outlook. As Heller writes about his Obey poster, "Fairey is essentially arguing that icons can be conflated and repurposed to achieve manipulative results. Fairey's appropriation refers to that which goes on in the mass media every day. At its most articulate, his work is a critique of image ownership." The article concludes by noting that Fairey has made rigid efforts to protect his own brand from the appropriation of other artists. For my research paper, this latter point is significant. It makes us question the degrees to which appropriation can take on. We must wonder is there ever an end to the cycle of appropriating a single image. As I begin to write about appropriation art, I will use Fairey as my jumping off point. The current case and Fairey's tactics to stop his art from being appropriated are emblematic of how copyright law exists among artist, media, and institutions today.

Landes, William M. "Copyright Protection and Appropriation Art." The Arts and Humanities in Public Life. Http://culturalpolicy.uchicago.edu/conf1999/landes.html.

The author begins by bringing up many issues that surround appropriation art. These problems include when art is based on renowned copyrights images, when images are borrowed without appropriate art intent, and when images are used for educational purposes. Instead of lamenting that the grey area of copyright can never be solved, this author takes a different approach. Landes proposes a solution to all these problems. Not necessarily a solution, but a belief that current copyright law can decide these matters.

The article delves into the economics of copyright. Landes discusses how without copyright protection artists would never be able to recoup losses to create art and therefore would be working without incentive. This would lead to a culture devoid of meaningful expression. He argues that there needs to be an appropriate balance between too little and too much protection. This balance would ensure that efficiency and creativity are promoted.

This piece brings up many questions about how appropriation art exists among law, society, and culture. It makes us question the benefits and downfalls of copyright protection. Like many copyright articles, it discusses the Koons v Rogers case. From its analysis, we gather that not all appropriation art should be protected under fair use. Additionally, we see that if it was, courts would be put in the unsuitable position of judging what art is and what is not.

"Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code." Http://www.copyright.gov/title17/92chap1.html#106. US Copyright Office.

This is where all the grey area of copyright lies. The US Copyright office presents an all inclusive guideline to copyright law. In order to understand appropriation art, it is important to know the law that binds all artists. Additionally, this piece is significant because its interpretation by US courts and judges affects all members of the digital era. Much of the information included in the section is broad. While I will not use the majority of the information provided, it will be an important reference for me as I write my paper. It is the copyright bible so to speak. It has an expansive glossary of everything from the definition of "public" to "visual art." In addition, it contains all of the many restrictions and exceptions to the rules that make up copyright law.

There are important passages that relate to appropriation. Specifically, Section 106A: Rights of Certain Authors to Attribution and Integrity, which among other things, recognizes the importance of the name. In doing so, it assigns values to the names of artists and companies that feel their name is being used and adversely affected without their permission. This brings up many questions like, how much is an artist's name worth? Or, how can we judge to what extent a name was damaged? Also, the Section recognizes the exclusive rights of copyright holders for derivative works. This affects any form of appropriation from sampling to parody to visual art. When determining the morality of appropriation, this latter point will be discussed at great length.

Smith, Roberta. "When One Man's Video Art Is Another's Copyright Crime." 6 May 2004. Thew New York Times.

Roberta Smith's When One Man's Video Art is Another's Copyright Crime digresses from the traditional discussion of visual artists' taking single images, and instead, focuses in on video artists appropriating. Jon Rouston is an artist that makes movies of already made movies. His process involves going to the theatre on opening night and recording what happens both on and off the screen. Although he doesn't sell his work, his installations still fall in that grey copyright area between theft and inspiration.

More troubling to Rouston is that Maryland, the state in which he works, is making it illegal to film inside movie theaters. Additionally, the Senate Judiciary Committee is taking harsh steps to ensure that illegal filming cannot happen in movie theatres. With 80 percent of pirated films coming from filming inside theatres, the MPAA has many lobbyists in Washington trying to create new laws that decrease piracy. However, Rouston argues that his films are not pirated DVDs that take away from seeing a film in theatres. Instead, he believes his film propone the movie going experience.

The author concludes that these new camcorder bans inhibit people from commenting and criticizing. According to Ms. Smith, our pop culture is comparable to 19th century landscape-would you ban 19th century artists from making pastorals? Her point hits home. Appropriation art that creates new meaning-whether parodic or scathing-should be allowed to exist, uninhibited by the law. In the end, Rouston decided to stop creating his films. This article is symbolic of artists moving away from appropriation (and thus, a type of commentary) because of laws that inadvertently protect copyright.

 

Fineman, Mia. "The Image Is Familiar; the Pitch Isn't." 13 July 2008. The New York Times. <http://www.nytimes.com/2008/07/13/arts/design/13fine.html?scp=13&sq=art%20appropriation%20copyright&st=cse>.

What happens when advertisers appropriate artists' images? So often, we read of artists manipulating corporate giants' advertisements to make a statement about society's mass consumerism. Warhol or Koons may ring a bell. This article describes the opposite event. In February 2007, artist Christian Marclay was shocked to see his video installation used in an Apple iPhone commercial. Although perturbed at Apple for using his work, especially after he denied his permission a year earlier, he did want to appear hypocritical. After all, Marclay's works borrows images from Hollywood without copyright permission. Throughout the article, many other similar examples are cited like John Galliano copying William Klein photographs in ads and Vaseline copying Spencer Tunick's naked series in a 60-second spot.

This article describes the recent phenomenon of corporations capitalizing on high profile contemporary artists through advertising. A New York art lawyer describes these events as verging on obvious "rip-offs" without any sort of recognition. There is a fine line between inspiration and stealing. One must question if the corporations copy the thought or the execution. It seems that artists have realized appropriation can be a double edge sword for them. The Marclay event is significant in that it holds a mirror up to artists that utilize appropriation. It shows how when properly formulated a successful technique can be used both against and for contemporary artists. The article ends leaving us question is it really fair for the David to pick on Goliath? The courts would say yes.

There is also another underlying theme to the New York Times article. Much of the piece discusses how artists who turn down offers from big corporations are often dumbfounded when companies go ahead and use their images anyway. For obvious reasons, these artists rarely sue billion dollar companies. The take a way is that artists are pushed into a corner. Should they take the cash or sacrifice their integrity? There is another problem. Many fans think they have sold out to these companies, affecting their brand name. As a result, the author sees artists becoming more defensive and rigid in their tactics to control distribution.

One is left questioning the difference if the situation was reversed. For my research paper, I see a difference: one person is trying to make a thoughtful point the other is trying to sell some iPhones. But what happens as more and more companies are trying to do both?

Davis, Douglas. "The Work of Art in the Age of Digital Reproduction." 1995. Third Annual New York Digital Salon. JSTOR. <http://www.jstor.org/stable/1576221>.

When writing a paper about appropriation, it is important to get theoretical perspectives of how appropriation exists in our current digital revolution. The Work of Art in the Age of Digital Reproduction is less of a response to The Work of Art in The Age of Mechanical Reproduction than one would think. The author simultaneously updates and adheres to the latter.

Davis argues that in this world of digital reproduction there are no direct differences between the original and appropriated work. Benjamin's aura now merges with the original and reproduction. In this age of digitization, everything can be perfectly copied. We are forced to address how the contemporary world around us is essential to our understanding and use of appropriation. One can make changes to an original in an instant, but what does this mean? All of these things have infinite psychological and cultural implications (i.e. the culture police). The copied art can bring infinite pleasure and improve upon the original. Davis ends by saying, "Videotape...here is where the aura resides--not in the thing itself but in the originality of the moment when we hear see, read, repeat, revise."

Kennedy, Randy. "If the Copy Is an Artwork, Then What’s the Original?" Http://www.nytimes.com/2007/12/06/arts/design/06prin.html?_r=1&scp=1&sq=appropriation&st=cse. 6 Dec. 2007. The New York Times. 25 Mar. 2009.

 

If the Copy Is an Artwork, Then What's the Original? presents the issue of appropriation through a personal lens: the people behind the appropriated works of art. It follows photographer Jim Krantz, who while on a trip to New York, sees his shots of a Marlboro cowboy in a Richard Prince show at the Guggenheim. From here, the reader views both side of the appropriation dialogue. On one hand, there is Prince who adds to the cultural capital of art work everywhere. On the other hand, there is Prince who is making millions of dollars on posters and works of art that are not technically his. Krantz is rightly angry when someone comes up to his original in Chicago saying, "This looks similar to Richard Prince's work."

This article is anything but conclusive. Instead of arguing for something, the author tries to paint an image of the lesser known issues that go along with appropriation, like feelings. We see Krantz, an artist whose copyrighted images are used without permission, basically being told his lesser known reputation doesn't qualify him for the big bucks. He is angry but all he wants is a little recognition, not money. When writing my paper, I will use this article to address questions like, "What is the value of recognition? What do artists want in return for their work being used by others? What does it mean to make money off of someone else's work?" I will use this article to challenge the often heralded appropriation artists, by showing the sometimes negative and frustrating effects of their works on others.

Ames, E. Kenly. "Beyond Rogers v. Koons: A Fair Use Standard for Appropriation." Columbia Law Review 6th ser. 93 (1993): 1473-526.

The article begins by detailing the origins of Rogers v. Koons: Koons making a sculpture inspired by Roger's photograph Puppies. Koons lost the trial after courts failed to see reason to his fair use by parody defense. After describing the loss of Koons in court, the author posits several questions that are essential to my paper. Ames asks, "Is the use to which Koons puts Roger's photographs mere piracy of someone else's images? Or is it art in some more meaningful sense? If it is more than piracy, does it deserve the protection of copyright law, and, if so, then how should that protection be afforded to balance appropriately the interests of the original creator, the viewing public, and the appropriator?" This article attempts to answer these questions by giving an overview of how contemporary art came to appropriation as a technique and by explaining how copyright law exists within the current art world. Additionally, the author discusses several issues created out of the ongoing dialogue between copyright and artists. To begin with, it seems as if too often artists edit their art around copyright and the potential of being sued. The author argues that that appropriation should be protected under fair use. However, Ames sees the current fair use doctrine as inadequate in protecting appropriation artists. Lawmakers and artists are put into a grey area too often. Ames discusses new guidelines and rules that need to be developed to protect appropriation, while hushing copyright holders who are all too eager to sue. The author concludes by developing a standardized method for protecting appropriation artists. This method, an adaptation of the four factor analysis, is based on protecting the copyright holder's future markets instead of safeguarding infringement rights in work. The latter is founded on the idea that an appropriator's work will not substantially affect the value of the copyright holder's work.

Rogers v. Koons was a landmark decision. This article shows how the court case brought up a myriad of questions for our 21st Century society. When writing my research paper, it will be important to be able to explain not just what these questions are, but what many contemporary thinkers have responded with. Ames proposes a creative solution to the many different problems created when law does not sufficiently protect appropriation artists. Perhaps most important to my paper, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation presents the debate by showing what great value society can get from appropriating.

Patry, William. "Appropriation Art and Copies." Http://williampatry.blogspot.com/2005/10/appropriation-art-and-copies.html. 20 Oct. 2005. 1 Apr. 2009.

This blog begins by giving a definition of appropriation from London's Tate Gallery: "Appropriation art raises questions of originality, authenticity, and authorship, and belongs to the long modernist tradition of art that questions the nature or definition of art itself." Among artists the author names as descendants of the appropriation tradition are Picasso, Braque, Duchamp, Fountain, Dali, Johns, Rauschenberg, Koons, and Levine. The author argues that even though the practice of appropriation is quite old, courts have not been "receptive to fair use appropriation art claims." He cites Rogers V. Koons as an example of this. The article finds two problems in this case: First, a failure to understand that a judgment of "unfair" use does not mean that the court is an art critic; second, the presupposition that just because the art community believes something is art, it can't break copyright law. The author ends the article by noting a divide in the artistic community: those who support appropriation and those who fight against it. Patry finds the divide most fascinating because of the fact that artists who have always been supportive of moral rights undermine themselves with appropriation art (in that, it denies a special connection between originality and the author).

The blog entry proves most valuable to my thesis. It fuels the questions I started off with by giving perspective to the whole appropriation controversy inside and outside the spectrum of copyright. When discussing the existence of appropriation in the art world, it will be important to cite past artists of the tradition and current artists' opinions of ownership.

Klang, Mathias,"The Digital Commons: Using Licenses to Promote Creativity."

            The paper beings with the concept of property as "mine", which at an early age is always contrasted with the concept of sharing. The new digital age tests out currently property regulation, since things are now copied with ease. Importantly, "that which is owned is no longer simply the item itself but the privileges which it provides to the owner". How, then, do we reconcile property rights and the public domain (the commons)? Property law in Western civilization tends to bestow all rights onto a single person. He defines ownership as a "collection of rights which complement each other and grant to the owner the authority to legitimately enforce conditions". The focus on possesion complicates the property law when dealing with intagible objects.

             Klang offers the differing views people have of the commons, citing sources as far back as Aristotle and as recent as Lessig. The first, and considerably widespread, is the belief in the "tragedy of the commons". The second argues that the idea of the tragedy is false since it does not consider the environment in which the commons exists. The commons itself is a considerably vague term (consisting only of notions of property and sharing), and the public doman is defined only as what it is not (it is not legally protected intellectual property). According to Klang, what the public domain is "is our collective culture". He continues to explain the basics of the current copyright law and how owning the content of something limits the creativity of others. Creative Commons was developed to help ensure an ease of sharing and the creativity that the commons encourages. He explains, as most do, the basics to how Creative Commons licenses work, concluding that though copyright is a tricky game, "we can also be certain that we will always need a commons or a public domain from which we can create and recombine into new culture for us to enjoy".

             This article provides a great overview of the debate that currently surrounds copyright and Creative Commons, extending into the idea of the commons itself. As we saw, there are those who believe that the commons is nothing but a vast wasteland or an "overgrazed pasture", which my project hopes to discredit by emphasizes the good things that have come out of the commons. There are others who believe in the benefit of the commons, taking into consideration the situation in which they exist and the fact that the web allows for social cohesion and trust among those involved. It is this view that conforms to the models that I expand on, showing the many different ways that online communities have been affected by the commons and vice versa. Importantly, this article explain Creative Commons licenses as well and helps to illuminate the debate about property by offering definitions of terms that are really, less than clear in the law today. It really is the basis for this project.

 

This project aims to show the value of the digital domain, or the commons, by examining different case studies of online communities, focusing on art and other creative works. Creative Commons has increasingly played an important role in shaping the commons and will therefore be looked at more extensively than the other models. However, other models serve to illustrate how online communities have created their own standard practices when dealing with copyright issues and the commons as well.

Saint-Amour, Paul K.  The Copywrights: Intellectual Property and the Literary Imagination.  Ithaca, NY: Cornell UP, 2003.

        Paul Saint-Amour's study is primarily concerned with British copyright discourse from the late Victorian period through the beginning of modernism.  His eponymous pun seeks to capture the extralegal dimension of copyright law - namely, the interests and prejudices of those who set and implement the law, for instance, in favor of certain forms of creativity at the expense of others.  The goal of the book is to argue that literature began thinking about copyright when terms began extending in the nineteenth century, and that for the sake of future literature, copyright protection must be significantly "thinned."  Originality, Saint-Amour argues, is "only ever meaningfully a dialogical cultural phenomenon - a complexly intersubjective, intertextual product of social processes of consensus, contestation, distortion, and occlusion."  The chapter pertinent to my study involves what Saint-Amour calls the "hauntology" of copyright, the process by which an author "lives" beyond death in the form of a continued monopoly over her works, even though she herself no longer exists to control the privacy of that intellectual property. 

        The 1998 Sunny Bono Copyright Act led a veiled assault on the public domain in the name of the artists' memory, effectively turning intellectual property into "a memento mori."  This skews the public perception so that the public views copyright as the province of artists rather than as the province of copyright holders.  Since Wordsworth believed that poets create the taste by which they are to be enjoyed, he expected that the greatest remuneration for his poetry would come posthumously.  As a result, he thought that copyright should be perpetual, so that an artist's heirs can enjoy the benefits that ought to have occurred to the artist in her lifetime.  Wordsworth grew more conservative with age, but what about Moore, and the avant-garde more generally?  Given that an avant-garde presents itself as a force for change in society, are its views on intellectual property necessarily in favor of an expanded public domain?  Unlike some of the other modernists, Moore made a living off of her writing, so these are questions that touch on her use of quotation and her attitude to copyright more generally.   

For the 1967 volume of her Complete Poems, Marianne Moore preceded the section devoted to endnotes with a statement about quotation and intellectual property. "A Note on the Notes" reads as follows: "A willingness to satisfy contradictory objections to one's manner of writing might turn one's work into a donkey that finally finds itself being carried by its masters, since some readers suggest that quotation-marks are disruptive of pleasant progress; others, that notes to what should be complete are a pedantry or evidence of an insufficiently realized task. But since in anything I have written there have been lines in which the chief interest is borrowed, and I have not yet been able to outgrow this hybrid method of composition, acknowledgements seem only honest. Perhaps those who are annoyed by provisos, detainments, and postscripts could be persuaded to take probity on faith and disregard the notes." In this project I hope to parse this statement, look at the history of "Poetry" and "The Octopus" to see how quotations operate and change across versions, and ask whether and why modern American poets like Moore who quote borrow or steal.

Carroll, Michael W.,Creative Commons and the New Intermediaries. Michigan State Law Review, Vol. 45, 2006; Villanova Law/Public Policy Research Paper No. 2005-13.

        Carroll argues that Creative Commons licenses play both disintermediating and intermediating roles on the Web. He first points out that there is currently a proliferation of them on the web, a development that was quickly followed by search engines designed to look for works with CC licenses. In this way, they have become disintermediaries by enabling end-to-end transactions and become reintermediatiares by allowing new services to be preformed and new online communities to form.

       Carroll explains how CC licenses work, stating that "as of this writing, there are 16,000,000 digital objects accessible over the internet linked to CC licenses". Creative Commons not only acts as an intermediary, but enables other intermediaries as well. These include search engines, archives and libraries, producers and publishers ("which facilitates amateur-to-amateur communication"), and CC communities, offering examples of each and how they function. Under CC communities, he describes places that are dedicated to music, visual art, photographs, blogs, and education. This revolution in copyright has helped to spur Berner's-Lee and his colleagues to create a new Semantic Web, which will offer a higher degree of interoperability.           

        What is most important to the discussion of Creative Commons and online communities in Carroll's article is the vast list of examples he provides. This is an amazing list of the different ways that CC has facilitated different models of online communities. He cites Flickr for photography, which is the largest site for both commercial and noncommercial uses of photographs licenses under CC. It's only one model though and there are many, many more. CC has facilitated new business models as well, which Flickr is not. Magantune is a music site that has created a business in which users can listen to the works for free and then download CC licenses music at the price of their choosing. CC has, as Carroll shows, made a large impact on internet community's, and been used in different models, some nonprofit, some for profit, all based on the communities needs.

Understahl, Jennifer.  "Copyright Infringement and Poetry: When is a Red Wheelbarrow the Red Wheelbarrow?"  Vanderbilt Law Review
        58.3 (2005): 915-54.

        Understahl observes that courts apply a substantial similarity test when determining whether a particular work of literature infringes existing copyright.  She argues that courts fail to take into account the difference between different literary genres, and subsequently that different genres call for varying thresholds of originality.  Moreover, courts lack a clear standard for establishing substantial similarity, disagreeing on the application of the "pattern" and "total concept and feel" tests, as well as on whether the burden of recognizable infringement should fall to the "lay observer" or to an "intended audience."  The various expressive works encompassed by the umbrella term "literature" thus merit the formulation of individual standards for establishing substantial similarity.  For instance, literature often features phrases in which the sound complements the sense.  The sounds created by juxtaposing certain words can carry significance, as when a phrase describing Satan contains an abundance of sibilants, evoking the hiss of the serpent frequently employed to depict Satan in illustrations.  If the same phrase occurs in an op-ed column about a celebrity, the context largely determines that readers will attend to the sense, and assume that effects of sound are incidental. 

        In essence, Understahl argues that the idea/expression dichotomy collapses in the case of literary.  Adopting Pound's dictum that poetry is "the most concentrated form of verbal expression, she suggests that poetry warrants the lowest minimal standard for originality.  Typographical decisions, most notably features like the placement of the poem on the page, line length, enjambment, spacing, and strophic organization, all create substantial dissimilarities between copyrighted text and "new" writing, when justified as integral to that which the poem is designed to express.  Moreover, poems that borrow language from this "new" writing but cast the language in a new form ought to be determined original.  The substantial similarity test, Understahl argues, would even fail to find William Carlos Williams' "The Red Wheelbarrow" copyrightable.  She proposes an "expressive elements" test that evaluates the relation between form and content on a sliding scale of substantial similarity, one that accounts for the features that characterize poetic expression.  The projected benefits are greater consistency in substantial similarity determinations and less overprotection.  Moore's poetry would benefit from the adoption of this test, given the prevalence of sampling and quotation.  Understahl draws on a surprisingly wide range of poets to substantiate her remarks about poetry as an art form, demonstrating the viability of the proposed test within the artistic community under consideration.  Because she mentions no cases in which the court slighted poetic originality, the issues seem prospective, if no less important.

This article focuses on the rhetorical strategies employed by The Roots and ?uestlove in relation to hip hop authenticity. Specifically, Marshall finds that "sampling," connected as it is to the roots of hip hop, has come to stand in for "authenticity" in hip hop. ?uestlove and The Roots, privileging live, recorded instrumentation yet seeking legitimacy as hip hop, deliberately quotes, invokes and yet criticizes sampling in his music. The Roots' more recent has included more electronic tones, presumably to recall sampling and position their music more firmly in the hip-hop tradition. Yet the business of sampling -- the licenses fees only major artists like Jay-Z and Kanye West can afford -- makes ?uestlove question its presumed authenticity in hip-hop: "B

etween paying the record labels, who typically own the mechanical rights to sound recordings, and the writers and/or companies who own the publishing rights—none of which, of course, necessarily goes to the samplee—most hip-hop artists with limited (if not nonexistent) budgets could never hope to afford such a pricey but prized production technique." ?uestlove for that reasons often mocks copyright law and practice in his music, an "underground," subversive move that further confirms his authenticity among his fans, who privilege The Roots' idiosyncratic status in hip-hop. Thus by playing to both sides, The Roots complicate notions of what is real and authentic, trying to make room in hip-hop for a variety of expressions.

This article seeks to deconstruct underlying myths and assumptions about what mash-ups mean. It begins by saying, after The Grey Album scandal/triumph, histories of mash-ups "take on a kind of 'paradise lost' feel, and critics lament that the revolution has lost its initial bite, the innovation has become somewhat trite, and the practice risks becoming just another short-lived, pop-culture trend." Yet, Gunkel says arguments that industry co-optation has killed the mash-up are predicated on the same notions of originality and authenticity the mash-up deconstructs. Mash-ups deconstruct authorship and originality not only because they mix two or more disparate artists to make something new but also because they are created on machine-bsed production, like one of its antecedents, Jamaican dub. Moreover, mash-ups are "copies of copies" thereby dismantling the connection between writing/sound/original event.

Gunkel emphasizes the mechanical nature of mash-up production: on The Grey Album, he states:

"...there is nothing original in the technique, elements, or results of any particular mash-up; it is derivative to the core." Furthermore, "...it does not contest repeatability and interchangeability with arguments that still, in one way or another, validate and value originality as such." Mash-ups are unapologetically derivative, and therefore theoretically prove the theories of Adorno, Benjamin, Zizek, Baudrillard and Derrida that question the notion of the author, of original writing and music, and the "real" itself.

 

Shiga in this article seeks to describe how mash-ups became "listenable:" both how a culture of listening is grown and maintained and how the culture deems certain tracks listenable.

Mash-up culture is based on three premises/trens: (1) the shifting "locus of musical expertise, creativity, and skill to listeners of pop music;" "the changing character and institutional status of remixing in the dance music and hip-hop industries;" (3) "the use of illegality as a way of distinguishing and valorizing artifacts, styles, and remixers within the broader field of popular music culture."

To prove point (1), he talks about how remixers debate the quality of sound (wav vs. mp3, for instance), and how those qualifications are not absolute: "…mash-up remixers disregard the authority of sound-engineers in determining the quality of a sound recording." Furthermore, participation in the community is key to gaining legitimacy, Shiga argues, as an important status marker in one’s ability to hear connections between different songs. This act of listening is not removed, however, and is intertwined both video (accompanying remixes) and branding (creating an image behind the music).

In response to point (2) he states that mash-up culture is a response the mainstreaming of DJs and remixes by the entertainment industry: "

The emergence of mash-up culture is in this sense a backlash against the cultural authority of professional DJs, who assume what Adorno (1991) called an administrative view, ‘‘the task of which, looking down from on high, is to assemble, distribute, evaluate and organise’’ (p. 93).

To prove point (3), he discusses the rise and prominence of Danger Mouse’s Grey Album, within the mash-up community. Though this aura of criminality might be, in some ways, fabricated, as the record industry at times collaborates with the underground mash-up community, as when Jay-Z released a vocal-only version of the Black Album: "

Jay-Z’s sound engineer, Young Guru, admits that the release of vocal-only versions of the Black Album was intended to allow DJs to ‘‘remix the hell out of it.’"

This article is an excellent survey of the history, theory (Adorno, Benjamin) and literature of music mashups.

*It discussed notable cases of mashups: Danger Mouse’s The Grey Album; Evolution Control Committee’s ‘‘Rebel Without a Pause,’’ Freelance Hellraiser’s ‘‘A Stroke of Genius,’’ 2 Many DJs’ ‘‘Smells Like Teen Booty,’’ Negativland’s ‘‘I Still Haven’t Found What I’m Looking For,’’ and Party Ben’s ‘‘Boulevard of Broken Songs.’’

*It explicates the antecedent of current-day mash-ups and shows how artists are conflicted about the "democratization of music:" Some like David Bowie and DJ Moby welcome it, while others dislike it's ability "to deconstruct (and mock) the arbitrarily divided and cherished pop canon."

*Is relatively agnostic on whether digital technology "empowers" users; merely states that technology has changed audiences' relationship to music and made explicit the meanings behind the music: ‘‘Copyright is about control: the right to control the way your work is used.’’ The industry is fighting a battle over image in an era when mashers target sources precisely because of their image: what Nirvana signifies; what Destiny’s Child signifies; and how apparently hilarious it is to bundle them together."

*Locates mash-up culture as a symptom of youth growing up surrounded by media, but maintains skepticism that there is any political power in their deconstruction of the media: does it "really produce anything more than superficial, ironic combat"?

Herman argues in this paper that DJs are in the music industry "seen as the creative authors of their work" – "brand-name author–god" – thereby conferring on them social capital that turns into economic capital in the sale of CDs and merchandise. The causes for this are manifold, but include the "increasing anonymity of dance music producers."

*DJs started to become authors as audiences began to confer on them the status of informed editor, and their remixes, sold on CD, soon became hot commodities. The industry snapped them up.

*Aside from "author-god," DJs are represented as men; the marketing language is patriarchal and "leaves women as merely the angel in the club—powerless over their lust for the big (name) DJ."

*DJs are brandnames, whose status is "is always closely tied to the aura and excitement of the live performance of mixing records."

*DJ’s virtuosity is closely linked to progresses in technology and their prominence is celebrated as a milestone of technological development.

On the heels of the Grokster case, Lessig explains that he is not for file-sharing, but that it is a distribution system that needs to be protected because of its potential to encourage and make easier a culture around remixing.

*On the Grokster case: "…if you make the courts the arbiter of whether a technology should be allowed or not, then the courts become a tool, a weapon to be used in the marketplace."

*The purpose of Creative Commons is to create "…a norm around people being free to remix and build upon, to sample out of, to supplement, to criticize content that otherwise."

*Argues that freer licenses under Creative Commons are economic incentives that can drive development – discusses the case of Brazil at length.

*Discusses how young people today think about writing in different ways, ways that are increasingly based not on text but on video and sounds, this makes freeing up the culture around image ownership and licensing all the more relevant and necessary.

This is an interview with Owen Gallagher, who runs a web design and development business in Ireland and wrote a thesis 'Video Recuts and the Remix Revolution: Whose Rights Are Being Infringed?'

Gallagher says that there is a middle ground on the issue of copyright and remix culture: "The balanced approach enables copyright owners to make money from their work, but also enables other artists to freely use samples from the entire pool of creative works to express themselves." Gallagher gives the example of how, as a child, he would play with toys from various shows and franchises (Transformers, GI Joe) and mix them together, as evidence that there ways to use copyrighted material that does not hurt producers of that content. Thus, his website, Total Recut, allows artists easy access to public domain and CC licensed work so they create remixes of their own; provides a space for people to access remixed work; and offers a forum of "remix artists" to show their stuff. Lastly, he claims that no work of art is completely original and that people who make remixes are practicing a legitimate art form.

In this talk, Lessig purports to prove that, because remixing is a part of culture and they way live, not all cultural products need to be copyrighted in the way corporations need copyrights. Looser, more open and lawyers licenses allow for more cultural production.

Good points:

*"This issue is not free music." File-sharing is wrong and illegal, but also disruptive to the potential of this technology, because it inspires insanity on the part of the industry. He is against extremes in the debate: those that would make kids into terrorists and those that would break the law.

* Demonstrates how a song – "My Life" – under creative commons license was remixed by at least seven people without ever meeting and, most importantly, without lawyers.

*Cites Danger Mouse’s Grey Album and Jonathan Caouette‘s Tarnation as examples of the fruits of remixing.

*States that most acts of remixing we do without thinking about it – criticizing or praising a film we just saw, for instance – and it is done for free and allowed without government intrusion.

Google & Books: An Exchange
By Paul N. Courant, Ann Kjellberg, J. D. McClatchy, Edward Mendelson, Margo Viscusi, Tappan Wilder et al.

In response to Google & the Future of Books (February 12, 2009)

To the Editors:

My colleague and friend Robert Darnton is a marvelous historian and an elegant writer. His utopian vision of a digital infrastructure for a new Republic of Letters [NYR, February 12] makes the spirit soar. But his idea that congressional committees beholden to Hollywood might have implemented that vision is a utopian fantasy, while his description of what will happen as a result of Google's scanning of copyrighted works is a dystopian fantasy.

 

Tushnet, Rebecca. "Payment in Credit: Copyright Law and Subcultural Creativity." Law and Contemporary Problems. Duke Law.

       According to Tushnet, fan creativity "concieves of the rights and responsibilities of authorship in ways distinct from standard models of creativity under copyright." Fan cultures create a communal experience around a work that the work itself cannot offer. She outlines the growth of fandom as it grew alongside of mass media to its eventual existence on the web, which has allowed for an explosion in content and accessibility. However, this visibility has copyright holders worried about the images of their characters in these fan cultures. Next she explains how fans justify their work as legitimate. Most believe, in some way or another, that what they are doing is fair use, and even those who believe it's illegal do not concern themselves too much because their work is considerably marginal. Tushnet goes on to explain why she believes fandom is fair use. Most importantly, fans are adding their own creativity to the original work and in that way making it partially theirs.

       Fandom also has its own sort of "code" which it abides by in regards to copyright. Fans originally used disclaimers that spelled out the owner of the original and often asked not to sue, but this began to fade with the internet. However, attribution is still very important, but most fans believe the creator of the original will be obvious and they actually pay more attention attributing other fans whose work they use. In short, fans have their own set of rules and norms by which they abide when dealing with the problem of copyright. She relates these to the idea of moral rights; fans often know more about the characters than corporations that are in charge of authorized works and will point out the flaws. She returns to fair use and what courts tend to consider fair use and not, explaining the satire-parody distinction and examines the commercial value of hybrid forms like fan works.

     What started as fan fiction has become its own culture, and really, its own online community. What this article describes is yet another way that copyright problems have been solved by the community that needs them. Fandom "treats authorship as a question of propriety, not property". It is not the same model that UbuWeb offers, where the site is simply acting as distributor of original works. Fan culture is a remix culture, again something CC was designed to make legal. However, fan works are complicated, as Tushnet alludes to in her discussion. Even though the characters are of course copyrighted, fans are creating a new and likely transformative use. However, there is often a lack of attribution, as part of the norms of this culture, since it is assumed that the audience will know who the original creator is. Instead, they are more focused on attributing each other, the "insiders" instead out the "outsiders". It is a flourishing culture online though, and another very successful way to circumvent copyright problems.

Goldstein, Jim. "Creative Commons." Digital Photo Pro.

      Goldstein begins by pointing out that "digital photography has fueled a revolution in online media consumption". Photographers need to be aware of copyright laws. Of course, there is always the problem that copyright can't keep up with the digital world- enter Creative Common's licenses, which Lessig designed to adapt to the 21st century and allow authors to provide freedoms on their work that will help enrich online culture. Goldstein explains the three layers of CC licenses: machine-readable expression, commons deed, and legally enforceable terms. Th question he then raises is whether or not CC is right for professional photographers. He believes that it is important to realize that "image availability is now taken for granted" and is therefore seen not as intellectual property but free content.

      This is where Creative Commons comes in. It serves to improve the granting of permission with legal licenses that allow photographers to decide what rights to give away without the hassle of hoping internet users go out of their way to personally ask permission. The licenses are designed to be as clear as possible, so most if not all users can easily disguish what rights are given and what rights are not. CC has already developed a passionate following and even the heavyweight Flickr has adopted these licenses. The CC+ license was designed specifically for photographers; it enables publishers to pursue commercial rights and other services beyond the normal noncommercial CC license. So then, that's the answer to Goldstein's question? He doesn't have one. Instead, he argues that the use of CC is a personal choice for each photographer, but that they should consider the pros and cons of the different licenses.

      While the article doesn't delve to deeply into the choices photographers have to make when deciding whether or not to use a CC license, it gives both a simple and easy to understand overview of Creative Commons and outlines the factors that affect photographers in the digital world. And while he poses more questions than he answers, it does leave readers with food for thought. In a world where content is assumed to be free and especially with photography, where keeping a name attached to an image is difficult, to say the least, what choice do you think you would make? He points out the important things to consider when deciding; perhaps most importantly, once something has a CC license, you can't change it back.

Crews, Kenneth D. "The Law of Fair Use and the Illusion of Fair-Use Guidelines." Ohio State Law Journal 62, 2 (2001): 599-702.

annotation

"Spinner" helps to apply section 108 of the Copyright code--Reproduction by libraries and archives

Cool tool to get a quick idea of public domain status

Ginsburg, Jane C. “Copyright and Control over New Technology of Dissemination.” Columbia Law Review 101 (2001): 1613- 1647.

Ginsburg discusses the implications of new technology and copyright law, mainly outlining her argument in three parts. She contends that the relationship between copyright and culture is nuanced as the shift of balance and control is consistently in flux. She focuses on control under copyright (and in this aspect, among other examples cites court rulings either in or out of favor for copyright owners) as well as discussing the availability of new technology. She discovers a pattern that is important to understanding the relationship between copyright and culture. Her main contention is that when copyright owners want to eliminate a new type of mass distribution by means of technology courts rule out of favor of copyright owners. Contrastingly when owners want to participate in the new dissemination courts lean towards more copyright control. This article serves as one case study in helping us understand this relationship between Copyright and Culture by specifically pointing to previous court decisions and laws passed as well to new technology and its influence. This article reveals an irony of thought when it comes to the courts and that original intentions when it comes to copyright owners somehow have worked in their favor.

 

 

 

Palank, Jacqueline. “ Content Makers Are Accused Of Exaggerating Copyright.” The New York Times (2007): 2.

This article touches on the same issues that Jane Ginsburg talks about namely, the shifting balance of power and control over copyright. One group (the Computer and Communications Industry Association) representing the consumers accuses different television and sports networks of inaccurately warning copyright use. Their contention is that such tactics intimidates consumers from using the legal rights they do have but, because of these overstated warnings, may not use.

This article provides a mainstream example of the more scholarly research previously. In addition this example acts has further proof that copyright is indeed not immutable even when it seems that technological advance may not be happening at the spur of the moment.

 

 

Horan, Elizabeth R. “Technically Outside the Law: Who Permits, Who Profits, and Why.” The Emily Dickinson Journal 10.1 (2001): 34-54.

Offering what seems to be significantly an economic outlook on Copyright intentions, Horan claims that incentive is the motivating reason and concern for creators to create and for that creation to serve the public good after a limited time (28 years). Similar to Carol Ou and her article on control over new technology, Horan presents us with examples to make her point about the increasing difficulty of controlling content. In this case she offers the example of Emily Dickinson’s writings to moot the point even recalling radio programs as an earlier obstruction to copyright control.

In describing Copyright incentive a new perspective was given me. Writers and artists of all kinds create because of the knowledge they of copyright protection. This may not be their primary reasoning, but perhaps at times it could be especially when their main motive is to gain monetary success.

 

 

Wang, Shujen. “Recontextualizing Copyright: Piracy, Hollywood, the State, and Globalization.” Cinema Journal 43 (2003): 25-43.

Shujen Wang is a professor of media and film studies at Emerson College. In this article she discusses transnational copyright governance among other topics. Her analysis looks at the qualities of both copyright owners and users. In general she says that the state continues to play a prominent role in intellectual property (IP) and information technology (IT) policy making. In addition the consumer has an active role in their infringing use of copyrighted material. This is a general description of her task. More nuanced is how she employed three prominent experts in the field of sociology namely, Scott Lash, John Urry and Manuel Castells. Their views may coincide with Karnow’s about the structure of culture as it is today. The virtual reality or information structure is highly abstract and variable. Wang goes on to expand on this point and the need to examine these topics under the description of her task as mentioned prior. So these authors initially act as a backdrop for her task and sub sequentially remains a critical theme in her work.

Similarly, this article acts to compliment and expand on Karnow’s position. This is not only an information based culture; it is also that culture has become information.

 

 

Karnow, Curtis E. A. “Data Morphing: Ownership, Copyright and Creation.” The MIT Press 27 (1994): 117-122.

Curtis Karnow offers an insightful analysis of the impact of the current virtual world on copyright relevance. After laying out the basic tenets of copyright culture and the ease with which content can be morphed he concludes that as technology produces a more complete virtual world copyright would in fact disintegrate. While copyright is indeed a useful and necessary right that helps define property, the technological revolution changes the very essence of property putting it in a chaotic and unstable environment that is virtual reality. In effect there are two consequences of property: (1) the elimination of invariable objects that render authors incapable of owning their own works, and (2) the amalgamation of structure, surface, background and fact.

This article contributes because current culture is more clearly defined as virtual and briefly explains how this is significant for copyright. The argument is that context is crucial in determining copyright use but when context merges with everything else it is like copyrighting the universe.

 

As new digital technologies proliferate, tension between consumers and corporations has increased due to the new challenges confronting entertainment industries. Historically, the anime industry has leveraged the activities of fans through strategic ignorance in order to grow the foreign market in the United States. I am interested particularly in exploring how these fan communities functioned as proselytization commons to develop this market -- that is, how their illegal activities actually created growth and benefits for the industry. These fan activities, however, have also created pressures and potential harms for the industry by demanding a departure from a traditional physical-media business model. Furthermore, since anime fandom is an especially participatory community, rights-holders will increasingly be faced by more unauthorized reproductions of their works and expectations from fans of the ability to engage with this content. I have chosen my sources in order to reflect the multi-faceted perspectives currently competing in the debate over how to balance the interests of creators and fans. In my paper I will examine anime fandom and its relationship with the anime industry as a paradigmatic case of a "hybrid economy," where balance is achieved through cooperation between both groups in order to maximize the benefits of fan engagement while minimizing the harms.

When the subject of copyright law arises in a conversation, one might typically consider the application of copyright rules to written works, or to works of art. One profession that is significantly impacted by copyright law and that may not come to mind immediately, is architecture. Many of the same rules that apply to the creative works that we can read, experience, and hold in our own hands apply to architectural creations as well. However, the evolution of architectural copyright law has been much slower and periodic than the similar legislature that is applied to other creative works. The development of copyright law as applied to architecture found its beginning with the general Copyright Act of 1976, and continued as increasing numbers of specific cases dealing with the subject arose throughout the decades. With the creation of the Architectural Works Copyright Act (AWCPA), one of the most recent, and most important laws dealing with architecture and copyright, both architects and consumers have realized the importance of having at least some basic knowledge of copyright law.

Case 545 U.S. 913 (2005)

This is a United States Supreme Court decision in which the Court unanimously held that the defendants, Grokster and Streamcast (P2P file sharing companies), could be sued for inducing copyright infringement via their marketing revenue from their respective file sharing software. The plaintiffs consisted over two dozen of the largest entertainment companies (led by Metro-Goldwyn-Mayer studios). The case is arguably one of the most important copyright infringement cases in the past 20 years. Justice Souter's decision is of particular importance : "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

While the Court unanimously concurred that Grokster could be liable for inducing copyright infringement, there was considerable disagreement over whether the case is substantially different from the Sony Betamax case, and whether the precedent established by Sony should be modified. The majority of the Justices would have either expanded or contracted the Sony Betamax doctrine, however the Court as a whole did not chose to reexamine the Betamax precedent in the decision, given they were split into three equal-sized groups. Instead, a new, and perhaps more ambiguous, test has been developed to determine whether the software in question is not protected by the Sony ruling. In short, the distributors of the programs advertised and/or otherwise induced its use for copyright infringement. MGM et al. asserted that the defendants' refusal to incorporate a mechanism to filter copyrighted materials from the file-sharing network constitutes an intent to promote copyright infringement. However, Justice Souter notes that "...liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses" would not be considered contributory infringement.

This case is important, because it illustrates the judicial precedence in regards to P2P as well as the extent to which large corporations disagree with the very essence of peer-to-peer sharing. It will be important to my paper because it is highly referenced in the literature and other sources.

International University in Germany 2004

In this paper Peitz and Waelbroeck run a type of global analysis (cross-country) and conclude that RIAA may be correct in its assertion that music downloads are causing a substantial decrease in music sales. Their data suggest that music downloading could have led to a 20% reduction in music sales worldwide between 1998-2002. They note that their estimate is a fairly crude estimate, but that it may be useful assessing the "exact substitution" that has taken place between CDs and MP3s. They admit, however that their analysis also reveals that other factors besides file-sharing network download are likely to be responsible for the decline in music sales in 2003.

These results seem unreliable. The study was done in  relatively short time period with very limited set of independent variables. Additionally, some question the validity of cross-country analyses in general because controlling for "unobserved heterogeneity" can be quite difficult, as other sources have noted. In addition, the authors themselves admitted to not having data on "MP3 downloads, Broadband, DMP and DVD variables for the years prior to 2002". In place of actual data they used variables in the regressions, assuming that the levels were "a good proxy" for first differences in that period for most countries, and that music downloading on file-sharing networks essentially started in 1999". This is an odd assumption, especially given that they sampled from 1998-2002.

This is an article that I will hold up as a mal-proven argument for the music industry's claim, in order to contrast with my other sources. One source actually mentions some of the flaws of this paper, pointing out that several of the regressions, including the most complete one (i.e. the one with all explanatory variables included) downloads are not even statistically significant.This paper will also allow me to expound upon some of the methodological difficulties surrounding this type of research.

University of Chicago Law Review, 2002

This law review article is sobering after pouring through mounds of articles quibbling over the how much money the giant music corporations may or may not be losing to P2P sharing. In the article, Ku reminds us of the original purposes of copyright: a tool for censorship and monopoly for the writers' guilds in response to the invention of the printing press. More modern copyright was intended to promote the progress of science and useful arts. As Ithiel de Sola Pool said, "the danger is not of an electronic nightmare,but of human error. It is not computers but policy that threatens freedom." Ku suggests we that enter the digital copyright debate mindful of the new and current, not focused on the traditions of the past.

Copyright developed as a response to the economics of Gutenberg's printing press, under which works of literature, music, and multimedia are delivered in the form of books, CDs, and videos. In the absence of legal protections against copying, this method for distribution was particularly susceptible to free riding by subsequent copiers. Today however, technology lets us to distribute and redistribute those same works as ".docs," ".mp3s," and ".mpgs" at virtually no cost. The economics of the industrial revolution are no longer needed, and with the connectivity of the Internet and technologies of the information revolution all but eliminate free-riding, in that there are no distribution costs to speak of, the public as a whole internalizes them, according to the author.

Ku believes that the new economics of digital technology should be encouraging in the creation and dissemination of human expression, not hindering. The author furthers his egalitarian stance by noting that it is not unreasonable to reach for a world in which no one is excluded from creations of the mind because they are unable or unwilling to pay. Furthermore, the same system can allow for, and stimulate, growth of a diverse group of artists, all connected directly to the public. Ku questions whether preserving copyright in cyberspace could even be considered constitutional if the underlying justifications of copyright no longer exist. Ku realizes his views are fairly radical, but remarks that just as Gutenberg's printing press threatened the dominance of scribes, so too do peer-to-peer networking and MP3s threaten the recording industry, and we must keep in mind "that the digital world will be what we want it to be... will we program it for the benefit of the few or for the good of all?"

Despite the fact that Ku is an obvious ideologue, his article brings new perspective to the discourse. It is important to maintain a certain sense of reality in trying to answer this question; it's important to stop and ponder for a moment whether in theory, however difficult in practice, Ku is correct in his assertion that reconfirming copyright in new internet technologies is not the most sensible of steps. I plan to use this article partly in the introduction of the topic and as a reality-check of the whole situation in my conclusion.

Electronic Frontier Fondation / Springer Berling, 2003

This is a paper written by by Fred von Lohmann a senior intellectual property attorney at the Electronic Frontier Foundation.Among other things, this article discusses “direct” infringement, typically at the hands of the individual who is sharing copyrighted files. As a "direct infringer" the individual has directly violated one or many of the copyright owner's exclusive rights. This is important because in the world of P2P, there is almost certainly some amount of infringing activity. The paper also covers contributory and vicarious infringement which will be less important to the particular topic at hand, but still relevant in painting a full, accurate picture. Lohmann notes that non-infringing uses of a P2P application are what allow it to be created. If a product is intended to work as a mechanism for copyright piracy, legal trouble is afoot. Almost all peer-to-peer systems can be used for many different purposes; the existence of real, substantial noninfringing uses increases the plausibility of invoking the “Betamax defense”.

Specifically the article notes that since every digital file is “fixed” for purposes of copyright law (whether on a hard drive, CD, or merely in RAM), the files being shared generally qualify as copyrighted works. The transmission of a file from one person to another results in a reproduction, a distribution, and possibly a public performance (e.g. transmitting a copyrighted work to the public)

I chose this paper because it is a good source of general information that will help me develop an introduction with some background about what peer-to-peer file sharing is and what its association copyright implications are. It is also a useful supplement to the actual court case, because it explains not only copyright law, but also how it is applied specifically to peer-to-peer file sharing.

http://www.jstor.org/stable/1123809?&Search=yes&term=jane&term=ginsburg%2C&list=hide&searchUri=%2Faction%2FdoAdvancedSearch%3Fq0%3Dginsburg%252C%2Bjane%26f0%3Dall%26c0%3DAND%26q1%3D%26f1%3Dall%26c1%3DAND%26q2%3D%26f2%3Dall%26c2%3DAND%26q3%3D%26f3%3Dall%26wc%3Don%26Search%3DSearch%26sd%3D%26ed%3D%26la%3D%26jo%3D&item=5&ttl=2136&returnArticleService=showArticle

    The popularity of the Super Bowl over the years has lead to an increasing number of large Super Bowl viewing parties.  However, the NFL has prevented establishments from doing so because they violated the NFL’s rights under Section 110 of the U.S. legal code, which prevents establishments from displaying performances on screens larger than 55 inches, a limit that originates from the Fairness in Music Licensing Act of 1998. 
    However, Michael M. Fenwick argues that this law does not apply to sports broadcasting because the Fairness in Music Licensing Act was written for authors within the music industry.   Moreover, the author believes that when a party broadcasts a sporting event, there is an implied public license and that the definitions of "perform", "public performance" and "audience" should be redefined.  Free broadcasting, he believes, should not be considered a performance.
    Also, the author sees a big problem with the Nielsen ratings, which have created an economic incentive for the NFL to refuse licensing to public establishments.  If the Nielsen ratings were not flawed, then having Super Bowl viewing parties would not even be an issue.
    Fenwick bases his argument around the misuse of one law to apply to another, and that the NFL has used a broad interpretation of copyright law to suit their business interests.  Due to this, he argues against the NFL having the right to ban establishments like casinos from holding Super Bowl viewing parties, because he believes public broadcasting should not be considered a performance.  Therefore, sports broadcasts would not face audio and visual constraints, and establishments should be able to display sporting events on any size television.
    Fenwick’s article complicates my argument.  Since he does not believe that sporting events should be protected by the FMLA, therefore all types of establishments would be able to show the Super Bowl on any sized television, regardless of written copyright law.  Therefore, the NFL would not have the right to prevent churches or bars from holding viewing parties.
    However, his problem with the Nielsen ratings also applies to my argument.  All other things aside, right now the NFL has incentive to deter establishments from holding viewing parties because higher Nielsen ratings equal higher revenue for the NFL.  If the Nielsen ratings were fixed, as the author suggests, then the NFL would have more incentive to created licensing agreements with bars and churches to show the game, and therefore there would no longer be a dispute.

This article actually argues against parody being included under the fair use clause, saying that the treatment should be very narrow and should not include my definition of satire (or works that parody others to attack a third). Posner claims that use should only be fair when the costs of transacting with the copyright owner over permission to use the copyrighted work would exceed the benefits of transacting. Posner argues three specific points:

1. Fair use should only provide a defense to infrigement if the work is a parody, not a satire.

2. The parodist should not be allowed to take so large a fraction of the copyrighted features as to make the parody a substitute for the original work.

3. The fact that a parodist appropriates a small amount should not be relevant to fair use.

Interestingly, Posner writes: "If all but one form of intellectual property is priced, dumping the remaining form into the public domain, where it can be used without being paid for, may cause the priced forms to be even more underutilized from a social standpoint. Underutilized and also underproduced, as potential buyers of this intellectual property switch to its free competitor."

However, if parody can be protected by fair use and satire cannot, Posner's argument suggests that everyone will switch to parody rather than risk or pay for satire.

 

Fashion designs in the United States are widely unprotected by intellectual property rights. Knockoff designers often recreate the couture masterpieces of major design houses without paying royalties and without the labor involved in producing the high-end fashion designs. Though recently multiple bills have been introduced into Congress that would grant three years of protection for the actual designs, many argue that this protection is actually damaging to the fashion industry that thrives on competitive creativity. On the one hand, no protective measures for fashion design would be extensive enough to completely prohibit design piracy. Ultimately, however, the damage caused by a fashion copyright law to the entire fashion industry would far outweigh any possible benefits that may be enjoyed by high-end fashion designers. This theory can also be applied to other thriving industries with unprotected intellectual property.

 

This article is extremely useful as evidence for my thesis in that it provides both support and opposition for the fashion copyright argument, concluding that protection of something as abstract as a fashion design would ultimately be detrimental to the industry as a whole. The article is particularly interesting because of its extension of the same reason into other industries that also do not have intellectual property protection. The argument puts in perspective exactly how a copyright law would affect not just one industry, but would inhibit creativity in other industries as well. This aspect adds an extra layer of depth to the argument that supports my overarching thesis.

 

Fashion designs in the United States are widely unprotected by intellectual property rights. Knockoff designers often recreate the couture masterpieces of major design houses without paying royalties and without the labor involved in producing the high-end fashion designs. Though recently multiple bills have been introduced into Congress that would grant three years of protection for the actual designs, many argue that this protection is actually damaging to the fashion industry that thrives on competitive creativity. On the one hand, no protective measures for fashion design would be extensive enough to completely prohibit design piracy. Ultimately, however, the damage caused by a fashion copyright law to the entire fashion industry would far outweigh any possible benefits that may be enjoyed by high-end fashion designers. This theory can also be applied to other thriving industries with unprotected intellectual property.

 

This article is extremely useful as evidence for my thesis in that it provides both support and opposition for the fashion copyright argument, concluding that protection of something as abstract as a fashion design would ultimately be detrimental to the industry as a whole. The article is particularly interesting because of its extension of the same reason into other industries that also do not have intellectual property protection. The argument puts in perspective exactly how a copyright law would affect not just one industry, but would inhibit creativity in other industries as well. This aspect adds an extra layer of depth to the argument that supports my overarching thesis.

Thesis: Samples, remixes, and mash-ups have all been affected by the interpretation and application of copyright law....... I am doing a creative project where I will produce four songs--a mash-up, a remix, and two beats that contain samples. I am choosing to do two samples because they are of different natures. One beat has samples of substantial similarity, whereas the second has a sample that has modified enough to make the original work unrecognizable. I will then discuss the relationship and implication that copyright law holds with samples, remixes, and mash-ups while using the songs I created as bases for comparison and analysis. The legal copyright implications will be addressed and critiqued.

     Newton v. Diamond is a court case that, similar to Bridgeport Music v. Dimension Films, revolves around de minimis sampling. The case involves the rap group, the Beastie Boys, and accomplished jazz flutist, James Newton. The Beastie Boys, in their song “Pass the Mic,” sampled a very small segment of Newton’s recording, “Choir.” The sample was a six-second, three-note snippet of Newton playing the flute. The Beastie Boys acquired a license for the actual sound recording from a record company, but they didn’t obtain one for the underlying musical composition from Newton. The court held that the three-note segment of the composition of “Choir” could not be copyrighted because it lacked requisite originality; further, it stated that if the segment had been copyrightable, the Beastie Boy’s use was de minimis.
     The analysis on de minimis, unlike in the Bridgeport case, was on the musical composition, not the sound recording. First, the three-note sequence wasn’t the heart of the work and was insubstantial as it appeared once within the four and one-half minute song. Even more important, though, is that the note sequence in question—C – D flat – C, over a held C note—doesn’t contain sufficient originality to be awarded copyright protection. There are only so many notes, chords, and chord progressions available to musicians. Therefore, some of these basic notes and progressions can’t be “owned” by anyone.
     With this type of court decision and interpretation of copyright and de minimis laws, the need for certain sample clearances becomes void. Along with the outcome of the Bridgeport case, if I sampled a one-note snippet of a song, I would still need licensing from whoever owns the master recordings. With the Newton v. Diamond case, however, I would now only need licensing from the record company, for instance, and wouldn’t need to seek approval from a composer or music publishing company. The composer doesn’t own the rights to certain notes, and therefore I can sample certain compositions.
     This is an important differentiation for me, or anyone who samples for that matter. It is definitely something to take into consideration for my songs that sample and any future song that I produce. It would allow me to sample small segments and only have to clear them with record companies, saving me time and money. This is an interesting wrinkle in copyright law that is certainly relevant and applicable.

    The “Music, Money, and Sampling” chapter (6) of the book Music, Money, and Success (by Jeffrey Brabec) offers a thorough overview of how sampling works within the music business. It provides an all-encompassing layout of how deals usually go down between copyright holders of a song—artists, record labels, or music publishing companies—and someone who wants to take a portion of that existing song and integrate it into a newly recorded performance—songwriter, recording artist, or record producer. It serves as a tutorial for someone interested in the standard operating procedures of procuring clearances. It can also serve as a source of knowledge to someone curious about how music companies and artists are compensated for allowing samples from their catalog. It ranges from what happens when sampled songs are released without permission to the in-depth negotiating options that exist between the sampling party and the sampled party when clearance is approved.
    The options mentioned are one-time “buy-out” fees, the payment of a percentage of income received from the new song, and the transfer of a portion of the copyright of the new composition with the income that this would generate. Also mentioned are the criteria that copyright holders use in analyzing the new song to help determine types of deals. This type of analysis takes into account: duration of sample, nature of the sample, sales of the new song if it has been released, and whether the sample was a key element or recognizable piece of the original composition. Although there is nothing exact, as it comes down to negotiating, the specific percentages that copyright holders usually bargain are covered.
    The information in this chapter is relevant to my creative project because all of it would be applicable if I were to try and clear the songs I produced by integrating copyrighted work. Here I can see how companies would analyze my music and the type of deal I could expect. It really covers just what people have to go through to clear their samples and how much money they forgive in doing so—paying for the sample and then losing out on publishing percentages. On top of all of this, the chapter helped give me a greater perspective on why so many artists were outraged over court decisions regarding sampling…it cost them a lot of money, and some probably couldn’t afford to keep sampling at all!

 

Music, Money, and Success

Jeffrey Brabec

Schirmer Books; 2nd edition (October 15, 2000)

ISBN-13: 978-0825672668

    “Into the Grey” provides an excellent overview, history, and analysis of The Grey Album. This album stands as arguably the most famous and most controversial instance of mash-ups. This text covers what The Grey Album was, how it was produced, the response of record and publishing companies, and the subsequent response by disobedient mash-up and fair use advocates. Further, legal implications and defense possibilities of sampling are discussed, but in the specific context of mash-ups.
    The Grey Album, produced by Brain Burton a.k.a. DJ Danger Mouse, is a mash-up album that uses the full vocal content of Jay-Z’s Black Album mixed with instrumentals that can all be traced to the Beatles’ White Album. Every drum hit and instrumental chord was sampled from the Beatles’ album and used as beats for Jay-Z’s vocals to seamlessly rap over. Burton’s mash-up album caught like wildfire, popping up in record stores and on countless websites. The issue, however, was that Burton never received permission from any copyright owners of the Beatles or Jay-Z.
    As a result, the Beatles’ record and publishing companies sent Burton a cease and desist letter, explaining how he was infringing their copyrights. He complied and was never brought to court. After only a brief look at the exclusive rights of copyright owners, it is beyond doubt that had the case been brought to court, The Grey Album fully infringed on their rights. Discontent fans didn’t take kindly to this realization though—they organized a day of “civil disobedience” called “Grey Tuesday,” in which hundreds of websites hosted The Grey Album for download.
    The author suggests using de minimis laws as a defense, but as we know, this might no longer stand up. Instead, the only viable defense is fair use. This would unlikely be successful because although The Grey Album is highly transformative, it is a commercial product and not intended to criticize or parody. The core artistic work is also appropriated. And since copyright owners enjoy the rights to control adaptations through licenses—where they can make money by choosing to license—The Grey Album might negatively affect the ability to license further samples, and therefore is of potential harm.
    This comment is an excellent resource for my project. It first provides a thorough overview of The Grey Album and following episodes. This albums stands as an example of what would potentially happen to me if I chose to release my mash-ups. More important, however, is the discussion of fair use defense for mash-ups and the opinion that it would never hold up in court. This addresses a potential defense for my mash-ups and why it might not work.

        Grand Upright Music v. Warner Bros. Records was the court case that started it all when it comes to sampling, copyright infringement, and the necessity of acquiring clearance to sample a copyrighted work. The case was brought against one of Warner Bros. Records’ artists, a rapper named Biz Markie, by Grand Upright Music, which owns the copyrights to singer and songwriter Gilbert O’Sullivan. Grand Upright claimed that Biz Markie infringed upon O’Sullivan’s song, “Alone Again (Naturally),” by incorporating a partial piece of the copyrighted song into a rap recording. The court found this to be evident.
        Markie’s main argument was that he should be excused from liability for infringing copyright because others in the rap world are also engaging in the illegal activity. The judge was quick to point out that this mere statement could do nothing more than lead to that argument’s own refutation. The judge then pointed to the US copyright laws, as well as even the Seventh Commandment, “Though shalt not steal,” as his basis for siding with Grand Upright. Just because stealing might be rampant in the rap music business, there is no way to view this as excusable or justifiable. The court viewed that appropriating copyrighted work into a new one for the sole aim of economic achievement is a blatant disregard for the law and the rights of others.
       With this decision, the face and sound of rap music was forever changed. Until that point, sampling had been widespread in the hip-hop world; some artists had even been using ten to twenty samples a song. Now, all of these samples would have to be cleared—and at a cost. Many artists couldn’t afford to sample after this. At the same time, copyright holders could begin refusing to license their songs for one reason or another.
       In my project I have two songs with samples. Had I produced them in 1985, for instance, I wouldn’t have to clear the samples, and I would be able to reap every monetary benefit to their success. After this Grand Upright case, however, things are different. To try and release either of my songs, I would have to go through a costly clearance negotiation with record and publishing companies; and for all I know, even if I offered to pay, they might still not clear my samples.

    This journal article opens with a hypothetical: The main gist is that you are a successful businessman who one day comes to the office to find a first-year employee sitting at your computer. He is lifting exact portions of your work to incorporate into his own. He argues that because he is new, he should be entitled to borrow and quote your work, even if his final work seems to have your “signature style.”
    You would never tolerate this, correct? It would be considered breaking and entering and intellectual property infringement. So why, then, should the music industry tolerate this rampant behavior that occurs through digital sampling?
    The author points to the Bridgeport Music court case as what finally stood up for the talents and creative ideas of artists who work to attain their right “signature sound”—the sound that makes them top-selling acts. This piece is written in full support of the Bridgeport decision, with the perspective that the unethical and unlawful use of prior work amounts to copyright infringement. It covers the history of sampling technology, the response of the courts and the music industry to sampling, an analysis on the debate of whether sampling is “art” or “theft,” and lastly, a proposed solution to foster creativity while protecting against unauthorized sampling. 
    While all of these categories have relevance to my project, I was primarily drawn to the section on sampling as “art” vs. “theft.”   In this, three myths are addressed and debunked: one, that sampling is analogous to “borrowing” work owned by others; two, that sampling is an art form and, therefore, samplers should be entitled to freely use copyrighted material; and three, that for a proper balance in copyright law, more protection should be granted to samplers. Every “myth” offers a variety of arguments presented by “free digital sampling” advocates. Each, however, is followed by a critical, thought provoking, and analytical assessment that fully shoots down any point in support of free sampling.
    Most sources that focus on sampling and its relation to copyright law seem to draw criticism on the Bridgeport decision and subsequent infringement cases. It was really helpful to have an article that fully supported Bridgeport and the notion that all digital sampling, regardless of length or clarity, needs copyright clearance. Any form of reasoning I could come up with to defend the songs I created was covered—and each was fully and thoughtfully undermined. This adds a particularly interesting aspect and perspective to my project, my songs, and their copyright implication.

         While it is fairly obvious to look towards the official US Copyright Law when doing researching for a copyright paper, two sections in Chapter 1 hold an important relevance to my project. Sections 106 and 114 both touch on factors that relate to the appropriation of copyrighted material for derivative works.
         Section 106 states the exclusive rights that accompany a copyrighted work. That is, the exclusive rights of an owner of that copyright. There are six main points; these can range from the right to authorize reproduction of the copyrighted work, to the right to authorize public performance or display. The second of these points, however, is the most appropriate for my project and research. It reads: the owner of copyright has the exclusive right and authorization “to prepare derivative works based upon the copyrighted work.” Samples, remixes, and mashups fall under this category of derivative work—they aren’t fully original and have been derived from copyrighted sources.
        Section 114 goes further in-depth on the scope of these exclusive rights when it comes to sound recordings specifically. Part two of this section connects back to the aforementioned second point of section 106. It states that the owner of a copyrighted sound recording has the exclusive right “to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality,” all of which take place in mashups, remixes, and samples.
        Both sections clearly include and declare that the owner of a copyrighted work, including any sound recording, holds the ability and right to authorize derivative works. Since most mashups, and a fair share of remixes and samples, aren’t cleared with copyright holders, they hold an interesting (and illegal) relationship with this law. On top of that, being some of the most fundamental aspects of the US Copyright Law, future court decisions that have affected music of this nature all rely on and relate back to these original points.

        Bridgeport Music v. Dimension Films is a court case that has had a major impact on the music industry, specifically with regards to the future of digital sampling. The case revolves around the use of a sample from the song “Get Off Your Ass and Jam” by George Clinton and the Funkadelics, whose copyright is held by Bridgeport. The sample in question comes from a three-note, four-second guitar riff in “Get Off.” N.W.A.’s song, “100 Miles and Runnin’,” takes two seconds from this snippet, lowers the pitch, and loops it to extend 16 beats. This song was then included on the soundtrack for a Dimension Film’s movie, I Got the Hook Up, which Bridgeport Music then claimed to infringe on its copyright. In a district court, Dimenion Films won on grounds that the alleged infringement was de minimis, and hence not actionable. When brought before a federal court, however, the decision was reversed.
       The court used the points on derivative work from Sections 106 and 114 of the US Copyright Law as reference for their decision. Because a sound copyright holder has the right to authorize the rearrangement, remix, and alteration of its recording, the copyright owner also then has the exclusive right to “sample” its recording. From this it was made clear: the judge announced, “Get a license or do not sample.” Grand Upright Music v. Warner Bros case sided with copyright holders to an extent; but, after this interpretation, even the de minimis defense became null. The decision supports that the usage of any section of copyrighted work, regardless of length or clarity, needs clearance. The court analyzed that even when something small is taken from a sound recording, what was taken is still something of value. Further, the copyright holder of a sound recording doesn’t just own the “song,” but rather owns all of the fixed sounds in that recording.
       The case had a monumental impact on music, copyright, and sampling. There now exists a “bright-line test,” where any sampling is infringement. This affects any producer or artist who wants to sample music in a song from here on out. Lengthy and costly negotiation and litigation will be necessary to sample, even just to take a two-second snippet. In my project I have two songs with samples. In one I rearrange a hefty portion of the original recording, which would have qualified as infringement after the Grand Upright v. Warner Brothers case. But in the second one, I sample a song while altering it so much that the source is unrecognizable. With the Bridgeport decision, though, there now stands a heavy consequence on my song and the type of sampling that I employed.

    “15 Megabytes of Fame” explores the rise of the new genre called “mash-ups.” This comment covers the definition and historical background of mash-ups, an analysis of mash-ups in comparison to traditional digital sampling and appropriation art, a discussion on the simple discrediting of mash-ups, and lastly an analysis of mash-ups under fair use precedents. In particular, the Bridgeport Music court decision is used to assess the standing of mash-ups and what the decision means for the genre’s future. While, as a producer of mash-ups, I have a clear understanding of what mash-ups entail, it was nice to get a standard definition by legal review. More importantly, as a producer, I would potentially call upon fair use, the Bridgeport case, and my differentiation from appropriation art to help defend and support my music. At the same time, counter points are addressed, which only help my project by examining every perspective on mash-ups.
    This piece defines mash-ups as distinct derivatives of sampling. Instead of incorporating a sample into a new work, mash-ups usually consist of two preexisting recordings. The remixer, in the most common cases, lays the vocal track from one song on top of the instrumental of another. This amalgamation leads to a unique song. A key element to a mash-up is the easy and immediate recognition of the prior recordings.
    It is pointed out that in the Bridgeport case, the court stated that samples are used solely to “1) save costs, or 2) add something to the new recording, or 3) both” (pg. 4). This rests only on the economic aspects of sampling—the artistic value isn’t counted. Mash-ups sample out of necessity; they don’t attempt to hide prior recordings nor attempt to claim ownership. Mash-ups are created in a manner as to require listeners to immediately recognize appropriated works; the creator never intends to portray any notion of “new” originality.
    Sound copyrights are protected in terms of its fixed medium, originality, and expression. A copyright owner must approve all derivative works that rearrange or remix. Mash-ups, therefore, should fall as infringing under all of these counts. The only way, it is argued, to defend mash-ups is through fair use. This piece explains how if the transformative nature of mash-ups comments, criticizes, or parodies the underlying work, fair use can be successfully employed to defend them.
    All of these points, as aforementioned, have relevance to my project, adding value and different points of view.

    IO is a company that holds and owns a number of registered copyrighted for a variety of adult entertainment products.  IO alleged that it found its own copyrighted clips from IO films on the Veoh website.  None of the alleged clips contained copyright notices except one.  Veoh is a site that relies on content contributed by users. Veoh is similar to a site like YouTube.  IO made the case that Veoh had to break protection codes to upload videos into the Flash format that the site uses.  By doing this, IO argued that Veoh became a direct infringer. 

The judge determined that Veoh was still protected by the safe harbor provisions.  Veoh does not actively oversee the uploading of content.  Veoh has an established system where the software reformats user content automatically once uploaded.  The system makes the content accessible immediately to other users.  Veoh has default parameters for the submission of content by a third party.  The automated system is started with the Veoh user.  Everything is put into motion with the user.  Veoh does not preview videos before they are uploaded.  The uploading is due completely to the users.  The court gave a summary judgment for Veoh.  Based on the DMCA, the judge said that Veoh was in fact protected by the Safe Harbor Provision, and the site complied with the statutes.   

The key detail about this case is that IO did not send any takedown notices.  This is critical to my thesis that there is a severe violation and abuse of power.  IO did not even follow proper procedures.  There was no take down notice sent.  Instead, IO went straight to court.  The notice and take down course of action was completely skipped.  Instead of stopping piracy, the DMCA in this case ended up limited consumer choices for a period of time.  The videos were taken down and  content made unavailable.

Rashmi Rangnath serves as a Staff Attorney at Public Knowledge.  Her topics of interest and expertise are in patent law and copyright.  She discusses where we are now after 10 years of the DMCA.  The two main provisions of the DMCA are the anti-circumvention measures and ISP (Internet Service Provider) liability provisions.

The anti-circumvention provisions ban circumventing locks on digital material.  It also makes it illegal to market and/or sell technology that would help people get around the locks on digital content.    The ISP liability provisions give a “safe harbor” to ISPs as long as they fulfill certain requirements.  They must “maintain a policy of terminating the internet access of repeat infringers.”

Rangnath points out that although the aim of the DMCA was make content available digitally while protecting the owners of this digital content.  It has actually had the opposite effect.  The effectiveness of preventing “piracy” is not questionable after 10 years of the DMCA.  Many of the fears that were being voiced by opponents to the DMCA, like museums and libraries, are now actualized.  Take down notices are being sent without just cause.  Fair use content is being removed unjustly.  With a lack of education about the DMCA, fair use is being violated.  
 
The design of anti-circumvention has created more problems then it has solved.  Anti-circumvention provisions are applied blindly most of the time.  Take down notices are sent regardless of it something is fair use or not.  Rangnath cites RealNetworks vs. Streambox.  Basically the Streambox technology permitted people to record music and movies that were being streamed over the Internet.

Rangath brings up a key point that I will discuss in my paper.  She says that “The provisions vest too much control in copyright owners over the design of devices.” After 10 years of the DMCA, it is apparent that there are certain abuses going on.  There is no system of checks and balances.  As a result, the rights of fair use are being violated.

When Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law, the president and Congress were both trying to usher in a digital revolution. The goal of the DMCA was to protect copyrighted information and owners from copyright infringement. The DMCA made it illegal to circumvent digital rights measures (DRM) on copyrighted material. When the DMCA was enacted, copyright owners no longer had to worry about risking their work. It has been ten years and the digital revolution has taken place. The DMCA played a crucial part in this. However, it has also created a set of problems that need to be resolved. The original purpose of the DMCA is not being served. The act does little to stop piracy with ineffective DRMs. The take down notice system is being abused by big copyright owning companies. People are losing their right to free speech and fair use. The DMCA is no longer in line with the goals of copyright. Instead of encouraging creativity, the DMCA stifles progress and innovation. Creators today need to worry about having a lawyer with the advent of their creations. Reform or repeal of the DMCA is critical or we will see the end of fair use with digital content.

Fair use is a term that originated in the United States.  It allows limited use of material that is copyrighted.  With fair use, permission is not required depending with appropriate circumstances. Fair use is defined and regulated with a four-factor test.  Using this test, one can tell if it violates copyright. A work must satisfy all four factors to pass the test.  Fair use is a tricky subject because it really does vary in every case.

The first factor says that a work is fair use depending on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

The second factor concerns, “ The nature of the copyrighted work.”

“The amount and substantiality of the potion used in relation,” is the third critical factor

The final factor says that a work is fair use depending on “ The effect of the use upon the potential market for or value of the copyrighted work.” 

IT would be ridiculous if you had to ask for permission everytime you were going to use a copyrighted work.  This is the purpose of fair use.  Fair use was created in tune with the goal of copyright: "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."

This information lays the foundation for my paper.  It provides the background information for me.  My claim is that the DMCA violates fair use and copyright.  By outlining the purpose of copyright and the factors of fair use, I can then tell how DMCA violates.

The DMCA is an amendment to title 17 (Copyright Act).  Bill Clinton signed it into law on October 28th, 1998.  The DMCA actually implemented treatises from the World Intellectual Property Treaty (WIPO).  The goal of the act was to give copyright owners protection with the oncoming digital advances.  It enforced the treatises in the international treaty.

The DMCA is split up into five different titles.  They are

Title Io WIPO Copyright and Performances and Phonograms Treatises Implementation Act of 1998
This put the treaties from WIPO into action.
Title IIo Online Copyright Infringement Liability Limitation Act
Gives Internet Service Providers protection from copyright infringement under certain circumstances.
Title IIIo Computer Maintenance Competition Assurance Act
Outlines Exemptions:  In the case then you need to copy a computer program by activating a computer because of a repair.
Title IVo Miscellaneous Provisions
Title Vo Vessel Hull Design Protection Act
Created a new form of protection for the design of vessel hulls

This summary of the DMCA is critical to my paper.  My paper is reallly centered on the DMCA and its affects on fair use and free speech.  In order to discuss the problems with the DMCA I must discuss its provisions and how it is supposed to work.  Then I will outsline what should be changed.

 

A relevant topic that has interested me is the way the RIAA has transformed the function of copyright law in the modern world in regards to the music industry and file sharing. Copyright law is supposed to encourage the flow of information, but the RIAA has been trying and succeeding in restricting this flow of information in their dealings with file-sharing offenders. They have instilled a certain fear in people so that they will never share files again, becoming a monopolizing faction in copyright law. They have the money and the legal backing to bully and intimidate the people they sue into settling out of court, even though most of the time they lack sufficient evidence and the practice of obtaining that evidence is of questionable legality. Recently however, people have started to stand up against the RIAA. Since the RIAA sues hundreds of people a day and therefore are still settling with ninety-nine of them, they seem to the public to not be making a difference. This is untrue however, because those that stand up to the RIAA are quietly taking them down bit by bit. The unconstitutional practices of the RIAA have since decreased due to the public outcry they have received, counterarguments won by the defendants such as legal fees have increased because the defendants press the RIAA about their lack of evidence, and more cases are being brought to court as public awareness increases. It does not take a rocket scientist to realize the RIAA has been taking advantage of people when one finds out that the RIAA has sued a dead person, a thirteen year old girl, and a divorced woman without a computer.

This article by Glickman and Holleyman provide a different opinion on the affects of the DMCA.  Holleyman serves as the CEO and president of the Business Software Alliance.  Glickman serves as the chairman and CEO of the Motion Picture Associate of America.

In 1998, Congress signed the DMCA in preparation for the digital revolution that was taking place.  The goal was to provide access to information and material digitally.  The DMCA allowed and supported the digital revolution.  Copyright owners would never have put their works into digital form had it not been for the protection that the DMCA afforded them.  By passing the DMCA, Congress encouraged the owners of copyrighted material to take that risk.  Without an actual written law, hesitancy would have replaced the risk that the owners were willing to take.  Within the last ten years, since the DMCA, new technology has been consistently bursting onto the scene.  PlayStation, iPods, smartphones, YouTube, and Facebook are only a few examples.  Tons of sites have emerged which encourage interaction of users and their creativity.  The DMCA ushered in this technological progress.       

The success of the DMCA has been amazing.  It has afforded consumers of digital content a multitude of choices about how, where, and when they access this content.  The balanced nature of the DMCA encourages innovation and propagation.  The benefits that consumers have gained from the work made available by the DMCA are massive. 

I will be using this article as a contrasting view to my own.  I think this gives a really interesting spin on the DMCA.  I agree that it has had a positive effect.  It did in fact usher in a digital revolution.  However, this article really ignores problems that the DMCA has created.  It praises the DMCA as the savior to all that is digital.  What is so interesting to me is to keep in mind the authors.  The authors are those people that issue the take down notices.  This point of view will give a contrasting perspective.

In his blog, Michal Geist discusses the adverse effects of the Canadian DMCA.  The Candadian DMCA is closely modeled on the U.S. DMCA.  Geist, after only perusing the Canadian DMCA made five main points during this blog entry, three of which I will be using

Although there are seemingly positive provisions in the Canadian DMCA, there are undermined by fine print, digital lock provisions.  Provisions such as the private copying of music now become illegal with these digital lock provisions.  One everyday situation is putting your favorite DVD onto your new iPod touch, now becomes copyright infringement.

The digital lock provisions are one addition to the Canadian DMCA that is not in the U.S. DMCA.  There is a ban on giving out technology that can be used for circumvention.  Even buying an unlocked cell phone would be considered infringement.

$500 fine per infringement; $5,000 after one notice; 10,000 after
If you can’t afford this, then it’s jail time.                                                                

This blog offers a different perspective.  Geist offers a contrasting DMCA that is even worse than the U.S. DMCA.  I will be using this perspective as a reference point.  Measuring the effectiveness of the Canadian DMCA to the U.S. DMCA.  Would a stricter DMCA, similar to Canada’s, be more affective at preventing copyright infringement?  Or Would the New Zealand, more balanced approach be more affective?  What changes could be more affective for the U.S. DMCA?  I will use this Canadian perspective as a means of helping to answer these questions.  I will be looking at the effectiveness of a stricter DMCA in this digital age.

This is a public policy report that offers important research for my paper.  It discusses how “free” expression really is in this new age with strict copyright control like the DMCA.  The Brennan Center for Justice conducted a research project in 2004.  The objective of the project was to see how the people, artists and scholars, directly affected by fair use were dealing with it.  These are the people who make significant contributions to culture and will definitely be affected by an amendment like the DMCA.  The Brennan Center used interviews, online surveys, focus group discourse, and most importantly, an analysis of about 153 of 300 take down letters.  The most interesting to me and the method that I plan to discuss in my paper is the analysis of the take down notices.  The 153 notices were aimed at materials that were actually fair use or had a weak IP claims.  

 

The research showed a strong positive correlation between the strength of fair use claim and the likelihood that the material would be removed.  There was also a troubling finding that even when there were weak IP claims, more than half of trademarked words or phrases were removed.  Even though it was fair use, the weak IP claims won.  Overall, the take down notices really are distinctly violating the first amendment. 

 

The other methods, interviews, online surveys, and focus group discussion found two common, major themes.  The research project found that there is a great deal of confusion about fair use and the DMCA.  Also, there is an enormous need for a legal support base to deal with gatekeepers.  The paper suggests possible improvements: a clearinghouse for information like how to reply to take down notices, legal support base, and decreases to the penalties.

 

I plan to use this paper’s research to support my claims 

1. People have inadequate knowledge about DMCA, fair use, and their first amendment rights

2. Gatekeepers are abusing take down notice rights

3. How effective are the take down notices at eliminating copyright infringement? 

4. Who are the innocent bystanders being caught up by the take down notices?

The purpose of copyright law is 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." Such a goal presumably serves the public interest because copyright protection encourages creativity and learning and thus benefits the progression of society. The First Amendment intends to protect freedom of expression and freedom of speech, including political speech. These rights also serve the public interest, as political speech allows the public to make educated and informed decisions when partaking in the democratic process held so sacred in the United States Constitution. There must be a delicate balance between copyright law and First Amendment rights, as copyright somewhat limits these rights. For example, political campaigns employ copyrighted material in ads, speeches, and videos for the purpose of (free) political speech. It can be argued that to treat such acts of political campaigns as copyright infringement limits the First Amendment right to freedom of speech. If such action of political campaigns is copyright infringement and thus eliminated or censored, it can be said that copyright severely hurts the public interest. When examining the role of copyright, it must then be addressed, does copyright help or harm the public interest?

My research paper will be focused on answering the following questions: How is film piracy, specifically online film piracy, affecting the film industry, and what measures are being taken to regulate it? Are these measures effective, faulty, or even misdirected? In my annotated bibliography, I hope to answer these questions in depth so that I can frame my research paper's thesis around my findings. I will be specifically looking at the MPAA's involvement in the domestic fight against copyright infringement of film, as well as certain past and present cases that directly involve incidents of film piracy. In addition, I will briefly cover international film piracy. My tentative thesis that aims to answer the above questions is: Film piracy significantly affects the film industry, and legislative strategies to thwart it have proven to be ineffectual.

Mary Erickson’s article gives an in depth examination of the MPAA’s involvement in Congressional committee hearings pertaining to piracy and copyright issues since 1976. In her paper, Erickson concentrates on witness testimonies of varying MPAA reps at copyright and piracy related hearings. Her main goal throughout the paper is to look at how and why the “interest groups” influence the policy decisions with their witness testimonies (Erickson 1).  Her findings suggest that witness testimonies often have little or no affect on Congressional policy decisions, unless it is a celebrity witness. Erickson’s paper encompasses a number of informative statistics concerning the MPAA, and specifically outlines the MPAA’s “four-pronged approach to combating piracy” (Erickson 8).  nsight is also given as to what compromises the legislative committee and its hearings, including the MPAA’s participation in Senate and House hearings. Erickson's article gives a different perspective on how the MPAA handles anti-piracy legislation, instead of simply what they cover during a hearing. It is important to see how the MPAA either effectively or ineffectively goes about trying to thwart piracy in the film industry. 

Kerry Segrave's book Film Piracy in the Motion Picture Industry dedicates its entirety to my topic. Segrave's research though, extends significantly farther back into the history of film than I will be including in my analysis. She provides a wide berth of information about past and present domestic film issues as well as specific international ones. Chapters 6, "Domestic Piracy, 1975-2001," and 7, "Foreign Piracy, 1975 to 2001," are laden with the utmost pertinent material for my research. In these two chapters, Segrave goes into exquisite detail, not only providing an enormity of statistics, but also documenting vast amounts of specific legal action taken to prevent film piracy over sixteen years. Segrave's in depth method of relaying information allows me to get more than just a surface level understanding of Hollywood's constant struggle concerning film piracy. Her attention to detail regarding legislative measures and the strategic moves made by Hollywood to suppress piracy will add substantial support to my own analysis.

Shujen Wang's article, "Recontextualizing Copyright: Piracy, Hollywood, the state, and Globilization" provides a careful analysis of the copyright and piracy issues in the Hollwyood film industry while framing it in relation to the global impact.  Wang does this by endeavoring to answer four major issues surrounding the issue of piracy and copyright in film.  This article gives a much less centralized argument about my topic's issue, as it touches more on a general overview, though still focusing on the essentials.  It allows me to step back and look at my research in a more broad sense.  One crucial aspect that Wang brings up is the existence and role of the Motion Picture Export Association of America  (MPEAA), which my other sources have left out.  Throughout the article, Wang provides a more grounded view of issues concerning how and why the copyright issues have infiltrated our society so egregiously.  He adds a certain complexity to the arguments surrounding film piracy that is difficult to find on other research regarding my topic.  In addition, his conclusion touches on some of the more open ended questions of film piracy that I hope to answer in my research paper.

 

This is an article explaining the tactics used by the RIAA in obtaining information and evidence on illegal file-sharing, from information given by an RIAA worker himself. The RIAA hires a third party company, MediaSentry, to track down illegal file-sharers. That company then runs different peer-to-peer file-sharing programs and searches for songs specifically owned by the RIAA. They are then able to track down the specific IP address and the ISP from which the songs they find came from. They do not actually download the song however, using a digital handshake instead to let them know that the song is available for download. This complicates the matter because it is hard for me to believe that the RIAA can use a so called "digital handshake" as their main evidence when no actual download occurred. The fact that the file was in a shared folder and was ready to download does not mean the person themselves shared the file. The court case Atlantic v. Howell is a great example of this situation in which the court rule that "If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right." Also in that case the judge stated, "Unless a copy of the work changes hands in one of the designated ways, a "distribution" under ... 106(3) has not taken place," thereby negating the RIAA's claim. However, not all cases are even taken to court, and the RIAA is able to slip by with this lack of evidence by presenting it like it is their primary proof of infringement.

The article then goes on to talk about cases of a more serious nature and how the RIAA deals with it. They start off with the digital handshake but then MediaSentry personnel actually do download the songs in question. This to me seems backwards and wrong that the RIAA downloads the same songs, in the same manner, from the same programs, as the pirates they are trying to catch.

Capitol v. Foster is a major victory for those being bullied by the RIAA. It is a sign of hope that people can make cases against the RIAA and win, even though they seem very outmatched. This source is useful because of the ruling that rejected yet another theory used by the RIAA to control and transform copyright law. The theory that was rejected due to the ruling of the case was that Foster was not found liable for the file-sharing that occurred on her computer by others and over the internet access that she paid for. The judge ruled in this way because Mrs. Foster was ignorant of the fact that any file-sharing programs were on her computer, and that any file-sharing occurred. Her husband and daughter could have been the ones at fault but she could not be sued for something she did not do and did not know about. This is a huge blow to the RIAA's legal campaign because it adds insult to injury. Not only can an IP provide limited information about a specific copyright infringer, but the RIAA cannot get away with suing the owner of the computer without sufficient evidence anymore. They cannot intimidate people with the specific lie that they have hard evidence on the identity of the copyright infringer because when they are brought to court their evidence will not hold up.

This case is not representative of the way RIAA lawsuits go however. Still, most people tend to settle out of court because legal fees would outmatch the settlement fee. But this case is representative of the evidence that the RIAA uses and the inconclusiveness of it. If a person does take action against the RIAA, and are truthfully not a copyright infringer, they have a very good chance at winning the case. Fortunately for Foster, she was able to have her case dropped as well as win a counterclaim argument for attorney fees which amounted to more than 60,000 dollars. Resistance to the RIAA is ever increasing and with each case lost by the RIAA they lose that much more control over the direct copyright law is going and will go in the future

This website produced by the RIAA, is supposed to educate a person about illegal file-sharing and copyright infringement. Some questions that the RIAA pose and answer are both helpful and truthful, but there are also others that the RIAA answers with lies. It is interesting to look at these questions and realize the manipulation that the RIAA uses to persuade people into settling out of court, and the blatant lies they tell those people when doing so. From these questions I am able to gage the direction and steps that the RIAA is taking in order to successfully transform the laws on file-sharing and copyright to fit their liking.

For example, they declare that a person is sued because that person in particular has been identified as uploading or downloading copyrighted material without authorization. Most of the people they sue and take action against are not extremely tech saavy and therefore might not catch the lies in the previous statement. The truth is that the RIAA cannot single out a person, only a specific IP address, which only means that the action took place at a time. Basically, all they can prove is that at a certain time, which they can not pinpoint either, a person used the computer with the specific IP address mentioned and downloaded an illegal copyrighted file. They do not have enough evidence from that alone to win a case, but because they have the money to sue massive amounts of people in this way, they manage to settle many cases in their favor and out of court. However, some people do realize what an IP address is and realize the lack of evidence the RIAA has which results in the high profile cases in the news today. That false statement by the RIAA adds to the list of ways it has directly affected the flow of information and the way copyright law works. They have been able to bully their way out of court cases with lies such as that and the excessive amounts of money they have.

 

This source is a court document from the Atlantic Records v. Tanya Andersen court case. More specifically it is the complaint from the defendant Andersen, and the part that interests me is where it talks about the questionable legality of MediaSentry's investigations. Tanya Andersen is another person who had enough courage to stand up to the RIAA, and like Ms. Santangelo, she is a single mother. However, Ms. Andersen is also disabled and has a young daughter. This is another instance that shows the type of people targeted in these lawsuits by the RIAA and why they are usually so successful in settling cases out of court. They are transforming the way copyright law works into cases that mostly do not make it to court in order to make a lot of money and pretend like their way of justice is bringing awareness to the public about copyright infringement.

The focus of this source is to show the tendency of MediaSentry's investigations to be intrusive and invasive of privacy. By doing so, this also shows that the RIAA are also cutting corners but then try put the blame on MediaSentry when caught. For example, the complaint provides detail about MediaSentry's investigations explaining that without authorization and under the false pretext of being a peer user, they are able to hack into someone's computer and gather information illegally. They then sell the person's IP address to RIAA, therefore allowing the RIAA to claim they did not do anything illegal themselves. This illegal practice has become known over the past months and as a result, some states require private investigators to have licenses and to be registered. This is true in the state that Ms. Andersen calls home and for that reason MediaSentry's investigation is illegal and so are all their findings. This evidence of illegal investigations by a well known partner of the RIAA contributes to the belief that they are trying to transform copyright law to fit what they want, whether it be through legal or illegal ways.

This source is the decision in the Atlantic v. Howell case. This case is important in the fight to lower the power that the RIAA has over copyright law because it rejects 2 popular theories that the RIAA tries to use in their cases against file-sharers. This first theory is called “making available” theory of infringement and it holds that if a person has a folder or file which is shared and therefore is able to be downloaded, that person is infringing on copyright even though the file or contents of the folder were not necessarily downloaded. The rejection by the court of this theory is a major blow to the RIAA's strategy and weakens the power that the RIAA has over copyright law. The second theory is called “offer to distribute” theory and had been accepted in similar cases by the court. It means almost the same as the “making available” theory.

One of the most important factors of this case is that Mr. And Mrs. Howell represented themselves against the whole litigation team of the RIAA, and won. The court sided with the Howells, saying that just because MediaSentry went and downloaded a file off of the Howell computer does not mean they personally put the file in the shared folder. The Howell's argued that Kazaa shared their whole hard drive without their knowledge. The courts stated that although MediaSentry had evidence of a file being shared, there was no way it could tell who actually put it in there.

The decision favoring the Howells was a monumental victory for the little guy so to speak and provides hope that the RIAA is not unbeatable, although they try their best to seem so with their intimidation tactics and bullying.

The Sony BMG v. Tenenbaum case is arguably the most high profile file-sharing case in the news today for a number of reasons. First, the defendant, Tenenbaum, is being represented by a famous Harvard Law professor by the name of Charles Neeson. The fact that Neeson was attracted to this case speaks volumes of the potential change to be made in how copyright law runs in the modern world today. Second, this case shows to the common people the true motive of the RIAA. They are trying to make an example out of Tenenbaum, who downloaded seven songs, in order to intimidate everyone from sharing files on their computer. He is a small fish in a big pond to them, and they think that they can use the intimidation tactic of suing him for an exorbitant amount of money all the while instilling fear in those who are thinking of sharing files.

This leads to the reason why I am choosing to use this case as a source: Tenenbaum is not trying to win his case just so the RIAA can pay legal fees that incurred, rather he wants to tackle the organization's legal strategy at its core. He is trying to prove the unconstitutionality of their litigation tactics in order to severely limit their power and effectively hit them where it hurts. Someone is finally accusing them of abusing the law and constitutional rights, and has the legal team to back him as well. There is a major difference between reading court cases and reading the obvious abuse by the RIAA in them, and actually being proactive and trying to defend yourself and others. The people have had enough with the RIAA and their monopoly over copyright law in regards to file-sharing and the music industry and the measures they take to restrict the flow of information that copyright is supposed to encourage. People are not supposed to be so scared of the RIAA that they will not use the computer or send files ever again for fear of punishment. The modern world we live in is changing largely into a digital world, and the RIAA is trying to stop us from moving forward by squashing our hunger for new information with their unconstitutional strategies.

This source is a blog written by one of Prof. Neeson's students in his CyberOne class, who are also helping out Tenenbaum in his legal battle. This source also provides links to the portions of the court case documents themselves which could potentially be very helpful in my paper if I need to locate something specific in the case.

The Virgin v. Thomas case is not being used as a source in my paper for its positive outcome or because it somehow decreased the RIAA's power over copyright law. Actually, Thomas is losing her case, was hit with a 222,000 dollar judgment, and has since sought new legal advisors. What is very important about this particular case is the awareness this case has raised around Internet circles. People have websites devoted to “Freeing Jammie”, donations are being made in her name so she can pay the 222,000 dollars as well as finance an appeal, and awareness of RIAA abuse is thriving more than ever in Internet forums and chat rooms.

The amicus brief submitted by a handful of law professors strengthens the argument that more and more people are gaining knowledge and are willing to fight back against the RIAA. The amicus brief also presents new evidence and questions about copyright law, such as what is fair and what is infringement. For example, they state that the Copyright Act gives copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Making a work available to the public, they believe, does not constitute distribution. They also make their case and point to reject the synonymy between the words “distribute” and “publication.” They make a convincing argument that is relevant to my topic and back it up with multiple sources.

Before reading this brief I wondered whether the exclusive right of a copyright owner under the Copyright Act actually applied to a computer file. I wondered this because the Copyright Act protects phonorecords and copies which I take to be actual tangible items. There is a gray are for me when I think about Copyright Law and a computer file because a file is not tangible. After reading this brief I feel that this exclusive right cannot apply based off of the Copyright Act, but rather a provision or amendment needs to be made which outlines if and when a computer file is protected.

 

This is a lengthy article that analyzes the RIAA litigation process from head to toe. It is a great source to cite in my paper because of the massive amount of information that it provides as well as fine details that it includes which would otherwise be very hard to find. It is presumably written and put on the Internet by Ray Beckerman, an active lawyer in the fight against the recording industry and their dubious tactics. He goes through each step in the process one by one, gives insight on it and defines terms where necessary, and cites specific cases in which that particular step was of significant importance. He also cites specific people that are fighting against the RIAA in a particular step and then moves on to the next process of RIAA litigation.

The main places that I will potentially cite from this website will come from the information provided on the processes of “ex parte” discovery as well as the analysis given regarding the RIAA's routine motions for dismissal of counterclaims. These are two major reasons for the RIAA's success in recent cases, and this article is trying to convey the fact that with proper knowledge of the way the RIAA litigation process works the RIAA can indeed be taken down. Their frequent use of “Ex parte” discovery is sickening, but if one knows that the RIAA is likely to try and use this tactic, however unconstitutional it is, adjustments can be made and abuse can be prevented.

I also find it somewhat amusing and unbelievable how much authority the RIAA thinks it has, and how much authority the people believe it has. Due to their intimidation tactics, “ex parte” orders, an expensive legal team, and often abusive and forceful pre-litigation letters, the RIAA seems to be in complete control of copyright law in the modern United States. They can do what they want and get away with it, even if most practices are of questionable legality. This source states that while the RIAA tries to dismiss counterclaims brought up by defendants as if they have the authority to do so, they actually do not. For example, they have not been able to cite any legal authority to dismiss counterclaims for legal fees.

Finally, this source provides descriptions on the types of people that the RIAA has tried to sue, further strengthening the idea that change is needed and that the RIAA is getting more and more abusive in their practices each day. Yes it is true that college students are normally who the RIAA target, but it is know that they have also tried to sue children, their guardians, a single mother who did not live at the residence the copyright infringement occurred, and last but not least a person who is actually deceased.

 

This is a great blog that includes an interview with Patricia Santangelo on Good Morning America and it gives great insight on the types of alleged copyright infringers that the RIAA has been going after. Patricia is being sued by the RIAA for something she did not do. This case is very indicative of the intimidation and blackmailing tactics that the RIAA uses against the people they sue. Ms. Santangelo however did not concede to their tactics and took them to court. They tried making her settle out of court so that her name would not be mentioned in a lawsuit, and they told her that a much more severe fine would be in store for her if she went to trial. The RIAA has almost an unlimited supply of money they use this factor to pressure those being sued. But because she did not download anything or do anything wrong, she did not give in to their pressure and did not settle with them. This case is fascinating because of who the RIAA set out to sue. The computer that was found with illegally downloaded songs was not at Ms. Santangelo's place of residence, she is divorced and the computer is located at her previous residence, and she does not have the financial means to pay the lawsuit. Also, before the case she knew nothing about illegal downloads on her computer, about Kazaa, or even what an IP address was.

It is unbelievable to me that the RIAA can amount enough gusto to try and sue this helpless person who has no idea what is going on. It is an awful attempt to make a few more dollars, and an even worse attempt at trying to promote awareness on the severity of illegal downloads. It is not right to go after a divorced mother who has very limited technological knowledge and who could not have possibly been at fault. The RIAA can not possibly be gaining any support when they sue people such as Ms. Santangelo. Luckily, Ms. Santangelo is fighting them, and in doing so she is raising awareness of the intimidation tactics the RIAA uses. Ms. Santangelo is only one person however, and for every one there are another hundred people who give in to the bullying of the RIAA.

This article identifies reasons behind why the original Mickey Mouse may not be protected by copyright after all. Menn notes that brand experts value Mickey Mouse today at $3 billion and that he has become the ultimate symbol of intellectual property. Menn also notes that film credits from the 1920’s reveal imprecision in copyright claims. Copyright questions apply to an older Mickey that had longer arms, smaller ears and a pointier nose. This entire notion of Mickey Mouse originally not being protected by copyright begins with Gregory Brown as Menn writes. It was Brown who was a former researcher for Disney who took over the Harvey Productions, home to Casper, who found the imprecision. He learned that Harvey failed to renew copyrights and learned that Disney failed to renew copyright claims on the 1931 short “The Mad Doctor” featuring Mickey Mouse. Brown decided to recreate animation cels but Disney sued and lost the case. However, Brown looked at the original “Steamboat Willie” and found that because three companies were listed without a clear copyright next to any of them, this nullified anyone’s claim. Although receiving some help from friends and people interested in the case, Brown’s appeal was dismissed because he missed a filing deadline. Menn quotes Meiseinger, the former general counsel who said, “everything has to fall into the public domain sometime”.
    This article is important to my paper because it take a different look at how people try and put Mickey Mouse back into the public domain rather than arguing against the CTEA. One question that arises out of this article, is why is it so important that Mickey Mouse not be protected? This is a question that I raise in my paper and a question that has several answers to it.

The Copyright Term Extension Act of 1998, which is also known as the Sonny Bono Copyright Term Extension Act as well as the Mickey Mouse Protection Act, extends the copyright terms in the United States by 20 years. Before this act, the law lasted for the life of an author plus fifty years or seventy-five years for corporations. Now, the copyright lasts for the life of an author plus seventy years of ninety-five years for corporations. In 1998, Disney representatives came to Washington looking for help in order to protect Mickey Mouse from going into the public domain in 2003.
This is the act in question for my argument. Disney wanted to protect their creation of Mickey Mouse and prohibit it from entering the public domain, so they called for the CTEA. Congress and President Clinton, who received lavish donations from Disney, signed the act in 1998. Whether or not the act should be upheld is the question I argue in my paper.

    These excerpts of the reasons why Congress extended the copyright term shows that these reasons are consistent with previous copyright extension acts that have been granted. One reason is that Congress recognized a number of public policy reasons for enacting such an act. It points out that Senator Orrin Hatch, pointed out that the reasons for passing the act “paralleled those that led Congress to adopt the life-plus-50 year copyright term in 1976”. These reasons include “harmonizing with the European Union and Strengthening the United States Balance of Payments”.  If United States copyright owners used works in Europe, it could only be protected if the US term was similar to that of the EU, which is the author’s life plus 70 years. Therefore this was a reason behind the CTEA. Other reasons include: to encourage investment in existing copyrighted works, fair provisions for authors’ descendants and encouragement for the creation of new works.
    The last reason given by Congress to pass CTEA holds important weight in my argument. Petitioners argue that the CTEA does not promote new creation, however, it was in the minds of Congress that the CTEA would indeed promote new creation. One creator in particular, Alan Menken testified that providing for one’s family is important during and after one’s life. If copyright would not help to provide for one’s family for an extended period of time, then a creator like Menken would have to stop creating and find employment elsewhere which would not promote creation of new works but actually inhibit it. This reason helps to argue why the CTEA should be supported rather than opposed. With regard to Mickey Mouse, protecting his creation can help Disney create new stories, images, and several ways of using Mickey Mouse.

Edward Samuels argues that the extension of copyright law is not a result of a scheme by corporations to cheat the public but rather a part of a system that the framers of the Constitution had in mind in order to “promote the progress of science and useful arts” by “securing, for limited times, to authors, and inventors, and the exclusive right to their respective writings and discoveries”.  Samuels identifies six categories of the public domain, which have all supported the expansion of copyright. Samuels writes that, “In all six areas, the public domain advocates were making arguments against the tide; they lamented the expansion of copyright but could hardly claim that the public domain analysis had in fact already worked its way into dominant copyright theory”. Samuels notes that protectionists of the act try and justify the copyright law based upon natural rights, moral rights and property rights, all of which public domain advocates argue in objection to heavily, however, Samuels argues that the natural rights and property rights are “firmly rooted in copyright history” and that it is recognized as the basis for copyright protection in civil law and outer countries outside of England and the US. Samuels goes on in his article to discuss the Eldred case and argues for the support of the case. He notes that the D.C Circuit Court concluded, “Copyrights are categorically immune from challenges under the First Amendment”. The petitioners of copyright extension argue that the premise of CTEA violated the “limited Times” provision of the Copyright Clause and that Congress can only grant rights in the case that it will promote the creation of new works.  They argue that the extension act of 1998 is unconstitutional, but Samuels then asks if that is unconstitutional, are all other proceeding acts unconstitutional as well and therefore have no stopping point. Therefore, Samuels argues, the Supreme Court should not endorse any approach the petitioners present.

    This article is important to my topic because it discusses the rationale behind opposing or supporting the Copyright Term Extension Act of 1998, the premise of my paper. Samuels outlines the arguments that advocates of the public domain may make including that of the restriction of creativity and he then argues why the advocates arguments do not hold and why the act should be upheld, an act that protects Mickey Mouse.

Bob Levin’s article “Disney’s War Against the Counterculture” describes the case of Disney vs. O’Neill. Dan O’Neill, a cartoonist created two cartoons along with Ted Richards, Bobby London and Gary Hallgren. They called themselves the Air Pirates, after a group of evildoers who had bedeviled Mickey Mouse in the 1930’s. O’Neill has said that the purpose of creating the cartoons was to “buck corporate thinking. We just didn’t like bullshit”. The first cover was of Mickey Mouse piloting an airplane with two sacks in the plane labeled “Dope”. The second cover was of Mickey Mouse and Minnie Mouse on horseback being confronted by a man with a gun in one hand and a sack of “Dope” in the other hand. Lawyers on behalf of Disney brought suit against the Air Pirates, accusing them of copyright infringement, trademarked infringement, unfair competition, intentional interference with business and trade disparagement through the wrongful use of the characters. The court allowed a restraining order to bar the Air Pirates from any further production and later obtained an injunction. The defense tried to legitimize what they had done and called themselves parodists such as Shakespeare and said they were not trying to pass on their work as a Disney product. They also argued that characters cannot be copyrighted and that they were protected under the 1st Amendment. Judge Wollenberg decided in the favor of Disney citing that Mickey Mouse is a character that constitutes what is being told and that O’Neill admitted to copying Mickey exactly. The 9th Circuit upheld Wollenberg’s decision and the Supreme Court refused to hear the case.
    This article and this case is important in understanding the importance of copyright in the case of Mickey Mouse. If Mickey Mouse were not protected under copyright, then O’Neill and the rest of Air Pirates would be able to do whatever they wanted with Mickey Mouse and whatever other characters are not protected by copyright law. If Mickey Mouse were in the public domain, then people would be able to harm the image of Mickey Mouse as O’Neill clearly did and tarnish a reputation that Walt Disney has put tremendous time and resources into upholding. Mickey Mouse and his stories target an innocent audience of children. The defaming images that O’Neill created showed Mickey in an unfavorable light and if the decision did not favor Disney, then Disney’s reputation as well as economic well being could have been damaged forever. My paper distinctly addressed the reasons behind why protecting Mickey Mouse is important rather than allowing him into the public domain.

Since 2003, the Recording Industry Association of America has been filing lawsuits against individuals who use P2P programs to share copyrighted material over the Internet. These individuals are being sued for copyright infringement, because the RIAA believes they are stealing and distributing material for which they do not own a copyright. Most of these lawsuits are settled for a few thousand dollars, and they are seldom taken to court. Today, an abundance of media is available for free on the internet, and copyright owners are losing the ability to control the flow of their work. A distinction between sharing and theft must be made in order to shape the future of the digital world. By filing these exorbitantly expensive lawsuits, however, the RIAA is using the court's power to intimidate and exploit its potential customers. In addition, the lawsuits have not achieved the goal of reducing the use of P2P programs. The RIAA's file sharing lawsuits are unfair and ineffective, and there are much better solutions to the illegal file sharing problem. (New Paragraph). The RIAA is abusing the legal system with these unfair lawsuits. Because of a clause in copyright law, the RIAA can claim statutory damages from $750-$30,000 for each copyrighted song file an individual has in his or her "shared music" folder. The value of a single song on iTunes is only 99 cents. Because the financial risk is so high, almost no one is able to challenge the RIAA's infringement accusations, and make them prove their cases to the court. People should have the right to due process of law and a trial by jury, so it can be determined whether or not the courts believe making copyrighted files available online is actually infringement. (New Paragraph). Since these lawsuits have started in 2003, the number of people using file sharing networks has more than doubled. The RIAA is not achieving its goal of stopping the use of P2P programs with these lawsuits against random people, and the lawsuits should cease. It is time the RIAA began to move in a different direction. (New Paragraph). There are other ways the RIAA could reduce the incentive to share files online, especially among college students. If the recording companies joined together and licensed their music on a large scale to certain programs, and universities provided these programs for students, the need to download files illegally would be reduced. Some universities are trying to implement this strategy, but in order for it to be successful, the music programs must run on a mac as well as a PC, and the licensed songs must be downloadable to an iPod. Also, programs like iTunes could lower song prices incrementally as a user purchases more and more songs. (New Paragraph). The RIAA's side of the argument must be considered and respected, because many people are choosing to download songs illegally instead of paying for the material. Hard-working artists are being denied fair compensation, and their rights should not be neglected. Action must be taken to solve this problem, but it must be fair and it must have the potential to be successful. The RIAA's lawsuits will not fix anything. People must stand up to these powerful record companies, and work together to pave the way for a digital future composed of both freedom and fair compensation.

Google book copyright settlement

In the case of orphan works, the copyright law stifles creativity instead of protecting it. Current, and proposed legislature is inefficient in dealing with this problem. The Google Book Search settlement will decrease the amount of orphan works in the short term, and limit its growth in the longer term through the formation of the Book Rights Registry. It is, however, only a partial private-sector solution. Far-reaching action from the legislative bodies is needed for a comprehensive solution to the orphan works problem.

This is the actual settlement awaiting court approval. As a source, it is imperative for my argument because it delineates the fate of orphan works in relation to the Google cyber-library, as well as the structure and function of the Book Rights Registry. It is the single source describing how the Google Book Search project could be the private-sector solution to the problem, offering an alternative to the –so far insufficient – orphan works legislation.

The agreement will essentially provide the following:
-    Access to 20% of the content of copyrighted books. Before the agreement, access to copyrighted books was restricted to the snippet view (only some sentences around the search terms were provided). More content could be displayed (some pages before an after the search term) only after explicit agreement between Google and the rightsholder. Now, the default amount displayed is 20%. In case the rightsholder wishes Google to display less, display bibliographical information only, or to remove her book from the index altogether she can opt out of the Google Book Search project by contacting Google.
-    Opportunity to purchase the book online and store in a personal “electronic bookshelf.” That means that the purchased books will be available for online reading whenever the user logs in to her Google account. Copy/ Pasting will be limited to 4 pages, while printing will be limited to 20 pages of material, with a watermark that identifies the work as copyrighted.
-    Access to all the online material for sale through institutional subscriptions. In this way, U.S. Colleges and other organizations will be able to allow access to the digitized library to their faculty and students.
-    Free, full-text, online viewing from at least one computer in every US public library.
-    The creation of the Book Rights Registry whose function it will be to track down the rightsholders and distribute the payments earned though the 2 aforementioned pathways (Institutional access, private purchase). It will also distribute revenues earned from ads placed next to the displayed book. The Book Rights Registry will be a not-for-profit organization which will store and update rightsholder information. As well as actively searching the rightsholders for every work, the Registry will provide an incentive for rightsholders to surface and claim their works because it will distribute the revenues collected by Google.

The agreement resulted from a US lawsuit, so its effects are only valid for US users. It must also be approved by the court first (expected in May 2009).

Henry Jenkins has emerged as the leading scholar on fan communities and participatory cultures.  In specifically addressing anime fansubbing communities, Jenkins presents a familiar argument of piracy actually serving as a promotional activity for anime properties.  He notes that by the Japanese anime industry being tolerant of grassroots activities in the United States, “much of the risks of entering the Western markets and many of the costs of experimentation were borne by dedicated consumers.”  This tolerance of fan activities represents part of a Japanese cultural tradition that permits expansion and engagement with media properties.  For example, manga artists and studios have permitted the appropriation and infringement of their copyrights by amateur artists in the doujinshi market.  Rather than viewing these activities as a threat to the value of their properties, Japanese companies have recognized that collaborative structures are important in “developing compelling new content or broadening markets.”

As other scholars such as Leonard and Kelts have noted, anime fandom helped build up a structure for an American market through experimentation with unfamiliar content and promotion of niche titles.  Jenkins's analysis of how companies must balance fan engagement along with protection of their properties is particularly relevant to the ongoing controversy in anime fandom between fansubbing groups and licensing companies.

Joshua Daniels describes the negligence of licensing companies to account for fan sentiments towards preservation of original works as a market failure that can be remedied through an expanded Fair Use statute.  He argues that society has an economic interest in maintaining the integrity of works, and therefore the harm caused by licensing companies that heavily edit or censor these properties can be understood as a negative market externality.  In order to correct this market failure, Daniels proposes that the law must channel incentives such that licensing companies are forced to take into account fan interests in preserving these works.  However, he also cautions that there is a substantial risk of destroying the market entirely if too broad of an approach is taken to remedy the failure.  Therefore, he proposes legalizing fansubs to an extent under a right of public access to foreign works in their original form when there is no other practicable legal means of obtaining that access.  In this way the competing interests of rights-holders and fans are balanced in favor of public access.

Daniels recognizes a demand for authenticity as a particular characteristic of anime fandom that promotes a cultural goal.  Insofar as some fansubs promote this end, we may consider legalizing their practices in order to incentivize companies to distribute an original version of the works they license.  Indeed, many fansubbing groups, such as Live-Evil, work specifically with older anime that were heavily modified when broadcast in the U.S. market.  Daniels's proposed model, however, would likely create undue burdens for companies that are attempting to localize otherwise unintelligible cultural shows.  While promoting public access to works is a valuable goal, Daniels seems to prioritize cultural over economic production when instead both concerns should be balanced.

The part of this piece that is important is the exploration of “substantiality”, what exactly it means and how it is used in the courts in regards to copyright infringement.  The author explains that there are multiple connotations that “substantiality” takes on in court.  The first connotation of substantiality as a “criterion of infringement involves the ‘ordinary observer’ test.”  Under this test it must “spontaneously and immediately” appear to the average person that the newly created work used or was based on the original.  This test is rough for obvious reasons.  Also, it would be almost impossible to ask the “average person” to tell right away the difference between material that is appropriated and that which is simply similar to the original.  The second connotation involves economics and has no relation to my thesis. The third connotation is almost the opposite of the first and is based on “literary analysis or classification,” or in other words an ‘expert opinion.’  This connotation is helpful in making ‘substantiality’ qualitative rather than quantitative, but not so helpful in that it often leads the court into “abstract literary speculations unrelated to the ends of the copyright law.”  The final connotation is that of ‘substantiality’ as a quantitative test, though this connotation is rejected.  The paper then goes on to show how these connotations of substantiality relate directly to parodies through examples.

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This paper defines tolerated use and discusses the reasons it exists.  Tolerated use is defined as “infringing usage of a copyrighted work of which the copyright owner

may be aware, yet does nothing about.”  There are many different reasons, why this may be.  Some examples include “simple laziness or enforcement costs, a desire to create goodwill, or a calculation that the infringement creates an economic complement the copyrighted work -- it actually benefits the owner.”  Tolerated use is compared to implicitly licensed use as well as fair use.  It explains how the difference between tolerated use and implicitly licensed use is legal, whereas the difference between tolerated use and fair use is fuzzy.  This is because of a lack of fair use trials against casual mass infringements that leaves fair use not completely “mapped out.” 

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While much of this document is useful for my thesis in a peripheral sense, the section of most interest discusses parody.  It defines parody as something that is not just humorous, but critical.  It goes on to explain that “specifically, it is parody's criticism of the expression of the original that makes parody eligible for protection as fair use.”  Important to note is that satire and parody are not interchangeable, and the document offers the court case of Rogers v. Koons as an example of a time when the court failed to make this distinction and it changed the outcome of the case. This example shows how important it is to make such a distinction.

 

This document will be helpful for my thesis in defining my play as a parody.  First of all it explains how important it is to formulate a clear definition.  Furthermore it provides the tools necessary to make that distinction.  It clearly defines exactly what a parody is, and goes on to make the specific distinction between parody and satire, something I can model my argument off of.  The document also offers an example of defining a parody based on the four points of the fair use test which can also be helpful in defining my play as a parody that is protected by fair use.

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This document includes Clause 8 as it exists in the U.S. Constitution along with a discussion.  It states that “Congress shall have power to promote the progress of sciences and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  The document goes on to discuss the scope of Congress’ power as well as the power held in the courts, between which an interesting balance is formed. 

 

This Clause and document are clearly connected to the thesis as they form and discuss the entire basis of copyright law and who has the power to enforce it. It is important to remember and realize that much power does lie in the hands of the government as opposed to the view that the power rests in the gatekeepers, copyright owners and infringers.  In a sense, this document complicates my thesis in that much of my thesis is focused on the idea that most copyright law is handled below the government.

While this class has extensively discussed the relationship between copyright and culture in the United States, it has only briefly touched on copyright on an international scale. The infringement of intellectual property rights is in many cases more widespread abroad, where the United States and its copyright industries experience difficulty enforcing copyright laws. The United States Trade Representative has proposed an Anti-Counterfeit Trade Agreement which includes the United States, the European Union and other developed countries. I am interested in exploring the consequences and limitations of this agreement and whether it will effectively curb international piracy and change the culture of copyright infringement.

The RIAA submitted this letter in response to public requests for comment on the ACTA. The RIAA provides a detailed prescription of what it needs in order to ensure that its intellectual property rights are not infringed anywhere in the world. This includes recommendations for the definition of “piracy,” and which infringement cases should be prosecuted. It also sets out specific requirements for law enforcement and monitoring officials to follow. The RIAA expresses its strong supports for the dialogue the ACTA has provoked and expresses its wish that all of its arguments be taken into account when formulating its final version.
    The RIAA provides by far the clearest and most non-negotiable opinion. It explicitly states that all acts of piracy, commercial or non-commercial, should be prosecuted and the strictest laws should be applied. It seems that the RIAA has already created its own legal framework that advances the industry’s ambitions and protects its interests efficiently. The Association is merely looking for a conduit of its legal system and does not intend to negotiate with any party. It also disregards the motives of user worldwide to seek and use illegal materials online. The RIAA does directly address the links between piracy and organized crime, which shows that it recognizes some of the ramifications of copyright infringement that affect areas completely exterior to music.  While the Association’s stance should not be ignored, its positions should be considered alongside economic and empirical evidence (like the one provided by the IIPA). Additionally, the confidence and severity of the RIAA’s opinion should caution all countries that the U.S. organization is a powerful player and can include the international arena in its jurisdiction if its demands are completely met by any multinational agreement.

In this article, Tushnet and Keller define parody and satire, and how such strict definitions can lead to problems. Like Long, they argue that such a clear definition can allow the court to almost choose which genre the works fall under, and therefore indirectly suppress what works are allowable. They go through a history of cases, including copyright and trademark, but I will concentrate on copyright as specifically relating to my project.

Therefore, Tushnet and Keller argue that the current mutually exclusive definitions of parody and satire should be forgotten. Instead, it is the critical insights that should be examined, without judging the merits of those insights the way parody or satire might. Otherwise, parody is favored unfairly over satire, suppressing one form of expression and promoting the other, which is not the purpose of the copyright laws.

Justin Sevakis presents an overview of the anime industry's current decline in sales, which he attributes both to digital fansubbing and corporate reluctance to adopt new technologies.  Unlike many other authors who have written about fansubbing, Sevakis recognizes a qualitative break between the VHS distribution networks and current digital fansubs with decentralized distribution.  The internet has dramatically lowered the barriers to obtaining fansubs, which are now easily available at the click of a button on a multitude of streaming sites.  While fansubs might have previously been a non-rivalrous work that served a promotional function for the licensed products, digital fansubs have effectively usurped the licensed market by offering a product of the same quality for free and faster than legal avenues.  The fansubbing groups, however, are simply responding to fan demands for timely releases, which the industry has failed to meet.  In order to prevent further losses and rebuild the industry, companies must adopt a digital model that provides American audiences with “a legal, inexpensive way to watch new anime in English.”
 
Rather than idealizing the cultural benefits of fansubbing, Sevakis presents a practical understanding of how fans and the industry operate in the digital market.  People watch fansubs because there is a market vacuum that the anime industry has ignored for several years.  Rather than providing a legal avenue to meet this market demand, anime companies have responded like many other entertainment industries by believing they can guilt their fans into sticking with a failing business model.  Furthermore, the industry has confounded the size of the fan community with the anime consumer market, which in fact represent audiences with varying levels of engagement and interest; not all fans share the same buying practices as collectors, and indeed many are simply interested in just viewing a series once and not owning it on DVD.  These considerations complicate the perspective of fansubbing as an activity that promotes economic and cultural growth because they demonstrate the real harm to the anime industry being caused by illegal reproduction in fan communities.

In this article, Adriana Collado summarizes the distinction between parody and satire and the interpretation of this difference in fair use cases over time. Collado goes on to discuss the present state of the law, what the law should be, and possible solutions and compromises for satire, which is not currently mostly included under fair use provisions.

However, Collado also argues that by Supreme Court's own definition of fair use works ("for purposes such as criticism [and] comment"), satire should already been included. Satire has been defined as a commentary or critical work, one of the uses specifically enumerated in the Fair Use Doctrine, so it should technically be protected.

Since satire is currently not included under fair use, Collado discusses potential solutions and compromises, although none are very promising. Collado quotes Tom W. Bell, who suggests that copyright owners and secondary users should be able to opt out of copyright law and contract under a fared use system, although he fails to mention what would happen for satirists if copyright owners refuse to license (which would probably happen due to the self-esteem issue). Collado adds another possibility of courts requiring unauthorized satirists to pay copyright holders for actual damages sustained from the use of the copyrighted work, but understands that such a method might still dissuade satirists who cannot predict such a number in advance.

 

This is a response to the Copyright Office’s Orphan Works Notice of Inquiry by the American Illustrators’ Partnership, a non-profit organization dedicated to creating a mechanism to professionally administer collective management of individual illustrators’ rights.  In the letter, they petition the Copyright Office to maintain protection of orphaned works on all visual artistic works.  The response goes on to list various reasons why visual art should not be included in the orphan works bill, noting that “automatic protection of visual artistic works is guaranteed without formalities” under U.S. and international copyright law, that “authors’ rights are their incomes,” and that “creativity is not chilled by protecting orphaned works,” among other claims.  The letter also argues that orphaning visual works in the context of a culture of “appropriation” created by the Internet would foster infringement.

This response to the Copyright Office’s NOI offers the perspective of an important group of artists who have good reason to oppose the legislation – the visual artists.  However, the arguments offered in the letter are mediocre at best.  For example, the claim that creativity is not stifled under current copyright law is plainly false.  The Holocaust Museum alone can attest to thousands upon thousands of documents that cannot be used because their copyright owner is unknown, and there are countless other works that could be used by film makers, historians and others that are sitting unused in private collections and archives.  Moreover, the language used in the letter itself is misleading, claiming that the legislation will “strip orphaned works of their protection” when in fact it will just limit remedies in copyright infringement in cases involving orphan works.  Nonetheless, the letter does rightly point out that the Internet facilitates “piracy, unintentional infringement and plagiary” of visual works.  I think private visual registries are the solution to this problem, as they provide a reliable way for works to stay connected to their makers. 

This blog on fair use, written by law professor Peter Friedman, covers many elements of fair use, including satire and parody. This page deals specifically with blog entries covering satire and fair use, including an excerpt from Andrew S. Long's "Mashed Up Videos and Broken Down Copyright," written for the Oklahoma Law Review. Friedman discusses how parody has more extensive coverage than satire under fair use, including the recent example of Little Brown's Good Night, Moon. Similarly to Dr. Juice's satire on The Cat and the Hat and the O.J. Simpson murder trial, this book will probably not be defensable under fair use due to its satiric rather than parodic nature.

Long's article includes a section on the effect os the parody-satire distinction, which discusses the confusion similar to Bridy's article about hybrids of satire and parody. Long even suggests that "this seemingly arbitrary distinction allows judges to find parody when it suits the results the wish to achieve." Hardly a promotion of progess that the Copyright Act is supposed to protect. Long also argues that the distinction between satire and parody ignores that satire must also transform the original work, which adds new, transformative meaning.

Michael Einhorn, Ph.D., suggests that licensing arbitration is preferable to the existing "all or nothing" method of fair use that currently exists for works that add new interpretation to existing works (ie parody and satire). If we vacate such rules, Einhorn argues, owners of intellectual property would be guaranteed compensation, producer incentives are great without the worries of punitive uncertainites, and collecting societies and licensing agents may emerge when tradable rights are defined. These would perhaps more effectively promote the progress of arts and sciences that the copyright laws are designed to do.

This argument follows Judge Kozinski's argument about changing the rules for satire, and not trying to apply fair use to the genre. Otherwise, the two options are too extreme: one party ends up getting the worst end of the deal, and the other party walks away almost unscathed.

The statement of this interest group discusses the concerns the Anti-Counterfeit Trade Agreement (ACTA) raises. These include the lack of transparency of its content, the limited information given to the public, the fact that this is an executive agreement and the implications this will have in practice in the Unites States political context. Public Knowledge is also uneasy with the terminology used in the ACTA – the use of “piracy” and “counterfeit” without concrete definitions of what these words would encompass. 
    The opinion of Public Knowledge adds an important perspective to my argument because it criticizes the format and the ramifications of ACTA implementation on a domestic level. The interest group raises the fact that the ACTA is an executive agreement and as such does not require the “signatories to be accountable to the public” since it circumvents Congress. If one links this information to the claim that the ACTA is supported predominantly by copyright industries then it leads me to believe that the sole purpose of this accord is to give the companies such as the RIAA and MPAA greater powers to prosecute copyright infringement internationally at their own discretion. Eliminating accountability also signifies that the United States Trade Representative (USTR) does not want to directly involve the U.S. in multinational infringement disputes but only seeks to facilitate the domestic copyright industry to defend its rights in the international arena. The limitation of the Public Knowledge opinion is that it doesn’t consider the newest Fact Sheet that was released by the USTR in August 2008. Even though the fact sheet does not give a substantial amount of concrete information, it does formally address some of Public Knowledge’s questions.

Judge Kozinski delivered a lecture for the 1999 Donald C. Brace Memorial at Fordham University School of Law on November 11, 1999. His speech was published in the Journal of the Copyright Society of the USA in the summer of 1999.

In this speech, Kozinski addresses one of the controversial decisions of his court, the Ninth Circuit, about the case Dr. Seuss Enterprises v. Penguin Books. Penguin published a book about the O.J. Simpson trial, which was illustrated and wirtten to resemble a Dr. Seuss picture book. The Court ruled that Penguin's book was not fair use because it was satire rather than parody, meaning that it did not comment on Dr. Seuss's book but only used it as a springboard to comment on the O.J. Simpson trial.

Judge Kozinski, however, indicates that had he delivered the decision, it might have been different; although he does not want to criticize his colleagues, he doubts he "would have decided the case the same way." He examines the tradition of fair use theory in dealing with intellectual property, questioning when its protection starts to defeat the purpose of having it.

The most relevant part of his speech to my topic is when he discusses the importance of form to satire, even if the satire does not necessarily comment on the original work. As Supreme Court pointed out, restraining the form suppresses content; furthermore, he argues with the Supreme Court's decision in Campbell v. Acuff-Rose, who claimed that satire attempts to avoid the drudgery in working up something fresh. Instead, it takes "some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for." The satirist cannot latch onto any work to achieve their purpose, either, because something about the original fits or doesn't fit the subject.

Lastly, Judge Kozinski points out that our fair use laws leave something to be desired: either we deny fair use and enjoin the work out of existence, or we claim fair use and the work remains and the copyright owner has to pay the attorney fees. He suggests a remedy outside of the fair use doctrine, a question of appropriate remedy rather than fair use. In the end, the effect would be to "strip copyright owners of their right to control the uses to which their work is put, while strengthening their right to demand compensation for the value they create."

In this journal article, Annemarie Bridy discusses the history of satire and parody throughout a variety of cases, concentrating especially on the Campbell case. She argues that Justice Souter's decision entitles parodists more than satirists when deciding how much and what kind of borrowing is appropriate for fair use arguments. So, what happens when a parodic work "shades into satire?" Is it no longer classifiable and therefore defensible as a parody?

In order to answer this question, Bridy draws upon literary theory and the distinction of "indirect satire" and "direct satire" to argue that some satire (direct) is definitely not permissible under fair use, but others (indirect) should be. As is, the definitions of parody and satire seem to be mutually exclusive, which can draw unfair consequences for indirect parody. Instead of employing such a distinct definition between satire and parody, she argues that the distinction should be drawn between two types of satirical parody, eliminating the problems that result from a hybrid of satire and parody.

Daniel Green discusses the statuses of parody and satire under current Supreme Court guidance, including the uncertainity and variance among courts. He argues that satire is unequivocally the underprivileged of the two for fair use cases, although it is allowed in certain circumstances. For his article, he had three purposes: to differentiate between parody and satire, to prove that protection for satire under fair use is important for both copyright law and the First Amendment, and to recommend some methods to incorporate this view while leaving all current precedent (although his methods may be a bit extreme, due to his satire of Gulliver's "A Modest Proposal."

One of his crucial arguments occurs when he discusses the Dr. Seuss Enterprises v. Penguin books case. Green argues that the Court overly criticized the satirist because the satirist followed traditional satire, and that his point of transposing the childish style and moral content to the world of adult concerns was an important juxtaposition. It is difficult to conceive The Cat NOT in the Hat! harming Dr. Seuss Enterprises because the books appeal to entirely different markets; only because the book was satirical did it not earn protection.  Satire is still a valuable social criticism, just like parody.

Green goes on to outline five more guidelines that should be used to determine fair use, including subjective intent of infringer, manifested effects on  the market, injury, "value" of the satire, and relevance or necessity of appropriated work to the satire. This way, perhaps, satirists will be able to deliver their modest (or perhaps not so modest) proposals without having to become parodists.

In this 1986 Court case, Marvin Fisher and Jack Segal brought a suit against Rick Dees for infringing their song "When Sunny Gets Blue" with a parody song entitled "When Sonny Sniffs Glue." Besides infringement, they claimed unfair competition, defamation, and product disparagement. The Court decided that Rick Dees did indeed deserve fair-use protection because it was a parody.

The important points in this case are that every instance of parody defense must be considered individually, that a humorous or satiric work deserves protection only if the copied work is at least partly the target of the work in question, and that parodists will seldom get permission from those whose works are parodied. As they state, "The parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought" since "[s]elf-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee." I would argue that the same is true of satires, even if they do not specifically comment on the original work, so they also need some form of protection or compromise for when the rights are denied. This follows Judge Kozinski's logic, so that satires are not stifled simply due to the nature of their work.