Friday, July 13, 2012

5. Discussion with Creative Commons Korea

This is not legal advice. Leave audio feedback at (512) 686-6329. 
This show was recorded and edited using GNU/Linux. 

In this episode we speak with DaYe Jung of CC Korea.

Expected Audience: Anyone interested in Creative Commons generally.

UPDATE: Thanks to the episode getting tweeted by the official Creative Commons account this show already has our highest page hit count within half an hour of posting. I just want to take this opportunity to say we have upcoming scheduled interviews with CC South Africa, CC Japan and CC Canada as well as other guests. We are also looking for help with the project. If you want to get involved, there is contact information at the bottom of the post.

Wednesday, July 11, 2012

4. Is Law School Right for You?

This is not legal advice. Leave audio feedback at (512) 686-6329.  
This show was recorded and edited using GNU/Linux.

In this episode Nick and I explore the specific circumstances of our two law schools, University of the District of Columbia and University of New Hampshire.

Two biggest take aways:
1) Do your research.
2) Think about your *life*.

I apologize for the general terrible audio quality. I had to do a lot of filtering to get Nick and I to have reasonably similar levels.

Click to see beyond the fold for the partially edited show notes.

Tuesday, July 10, 2012


This is not legal advice. Leave audio feedback at (512) 686-6329.

It's always terrible to explain a joke, but just in case.

For anyone that isn't following Nick and me on Google+, I wanted to make sure everybody knew that we were using the new Google Events feature for our live shows. We have two scheduled so far.

We're Live With

CC South Africa on July 21st at 1PM US Eastern
CC Canada on August 4th at 1PM US Eastern

More to Come

We are also working on dates with Kat Walsh, CC Korea, CC Japan, C3S and Gurdonark.

Once we get things finalized, we will be sure to let you know!


Also, we are thinking of doing a SoundCloud Fellowship. Let us know if you have any ideas for us and whether you think we should do it.

Sunday, July 8, 2012

On Critical Race Theory and the need for Free Licenses

This is not legal advice. Leave audio feedback at (512) 686-6329.

Hello, Nick here, and, embarrassingly this is my first post for the Music Manumit Lawcast Blog.

As listeners to the show know by now, I'm Doug's co-host, and my interest in copyright and intellectual property issues plays second (tenth?) fiddle to my interest and professional work on social justice and issues of racial disproportionality.

So what brings me to work on this project in the first place? There is the notion that free speech is of limited value when the ability to actually communicate meaningfully is truncated, and that important voices of dissent will be quashed if we don't continue to fight for the kind of balance of control and freedom that is embodied in Free Culture licenses like Creative Commons, and Free Software licenses like GPL, but ultimately my interest in the legal mechanisms behind this kind of controlled sharing are simply a matter of the coincidence that occurred when I happened to familiarize myself with Free Culture and Free Software during my time in law school. Because there are important legal mechanisms behind each, and because I was in the process of becoming a legal professional, this material sunk its hooks into me, and this project seemed like a natural step.

And, as Doug mentioned during our Earth Day show, we wouldn't need to bother with any of this legal BS if there wasn't material of substance and importance that needed to be communicated in ways that differ from the ways that Gene Simmons prefers (this may be the topic of another blog post actually - if I remember the quotation that set off all the rancor against Gene Simmons accurately, I actually think it's a wholly accurate statement that I would not be surprised to hear from someone on "our side".... but I digress). I am all for reaching a point where we don't need to bother with all this legal BS, so in the meantime, let's communicate substantively, and, if they're useful, let's use the right legal tools to communicate effectively.

In an earlier post, Doug mentioned that we had planned a show to provide an overview of the Public Domain for this weekend, which we wound up postponing (cancelling? Cancelponing?) because my internet went down the morning we had planned to record, and stayed unreliable until.... What he did not mention, unless I missed it, is that we planned to work in a very brief discussion of a very interesting article by Cory Doctorow which makes a lot of eye opening statements about the uniqueness of music as a copyrightable form, and is worth a read. The particular portion that Doug and I were drawn to, however, was the fourth paragraph, in which Doctorow takes a sort of Critical Race Theory approach to copyright protection of music:
The part of a song that is ‘‘musical’’ is totally up for grabs, and changes from society to society and age to age. The European tradition has tended to elevate melody, so we think of ‘‘writing a song’’ as ‘‘writing the melody.’’ Afro-Caribbean traditions stress rhythms, especially complex polyrhythms. To grossly oversimplify, a traditional European song with a different beat (but the same melody) can still be the same song. A traditional Afro-Caribbean song with a different melody (but the same rhythm) can still be the same song. The law of music – written by Europeans and people of European descent – recognizes strong claims to authorship for the melodist, but not the drummer. Conveniently (for businesses run in large part by Europeans and people of European descent), this has meant that the part of the music that Europeans value can’t be legally sampled or re-used without permission, but the part of the music characteristic of Afro-Caribbean performers can be treated as mere infrastructure by ‘‘white’’ acts.
Doug and I still may touch on the Critical Race issues of this piece in a future podcast. I think it is accurate to say that I am one of the most situationally privileged people in the world. To make that point, I am a young healthy white American man with a professional education. I have also put myself in the position of trying to identify systemic racism - that is to say, the racism within a system regardless of who is in control of that system; this means that in the District of Columbia, I am likely to wind up in the position of saying - from my position of tremendous privilege - to government decision-makers who are people of color that the decisions they have made disadvantage people of color, and perpetuate disparate impacts emerging from the historical culture of Anglo-American legal ferment. Remember the blog post in which Doug traced US Supreme Court case law back to pre-revolutionary England? While this is a nation of immigrants from all corners of the globe, and on one block I can eat English, Chinese, Middle Eastern, Japanese, Spanish, Korean, Belgian, West African, German, Carribean, Mexican and Indian food (I probably left some out - I'm thinking of the 1300 block of H Street NE, for anyone who knows DC - I may also be inadvertently lumping in restaurants from the 1200s), our system of laws is Anglo-American, and that is the cultural context on which we have built our expectations of what the law should deem our rights and responsibilities.

There is a lot more to explore there, and, as a white male - married to a black female - who spent the first 25 years of his life in a state that is 93% European-American, then studied law in a Critical Race aware HBCU in 50% African-American DC, now working for TimeBanks USA's Racial Justice Initiative, I will definitely be going back to Critical Race Theory both in regard to Doctorow's dissection of copyright in music, and in regard to my own personal and professional life.

However, I want to pick up on another important, perhaps slightly hidden statement about copyright protection within the Doctorow quote: something about a song is up for grabs. In particular, it is whatever about a song a given perspective says is less unique. That's in fitting with the notion that copyright protects creative work, but of course wherever there is ambiguity about what is or isn't creative work, cultural ferment demands that some aspect of a song be available for reuse. Before ending this rambling blog post, I just think it's important to those of us who know that certain things need to be communicated with a legal tool to control sharing to say that everyone - musicians only in this instance - who creates does so from someone else's work to some degree, and that - while we always need to exercise care in identifying the aspects of previous work that can and should be shared - Free Culture licenses give us tools that help us to communicate more clearly how we want our work used and adapted. Any license does this, of course, but the simplicity and widespread use of Creative Commons means that an author's intentions will be more likely to be identified and followed.

Precedent or Die!

This is not legal advice. Leave audio feedback at (512) 686-6329.

Yesterday, I mentioned that it would be silly to start with an opinion and just keep going back to the earliest opinion I could find. While in the context of Eldred I think that was true, just to do it for the sake of doing it to see how far we can go has my curiosity peaked.

Let's start with a case that is near and dear to Nick's heart, MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Circuit 2010).

There are a lot of cases in MDY that I recognize, but for the purposes of this blog I think  MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) is one everyone should read.

Of course, the Grokster case relies heavily about the Napster case, 239 F. 3d 1004 (CA9 2001).

From there we go to what might be the most important copyright case of all time, Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 451 (1984).

Sony takes us to this amazing quote and case "When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose." Twentieth Century Music Corp.v. Aiken, 422 U. S. 151, 156 (1975).

It is here that I start not recognizing the cases, but I did find one having to do with music: Associated Music Publishers, Inc.v. Debs Memorial Radio Fund, 141 F. 2d 852 (CA2).

There are lot of citations in AMP v DMR, but there was one which I had seen before: Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511.

Unfortunately, that is where Google Scholar leaves us hanging, but we do still have some citations, 229 Fed. Rep. 340. 143 C.C.A. 460, which you can find if you have a Westlaw subscription.  

Luckily, our next lead keeps us dealing with music, 
 "This court has held in John Church Company v. Hilliard Hotel Company, 221 Fed. 229, 136 C.C.A. 639 (1915), that the copyright to a certain musical composition is not infringed where the music is publicly rendered in the dining room of a hotel, which is open to the guests without charge for admission."
Remember, the current copyright act was passed in 1976, so we are well before the current law with that citation. Now John Church Company appears to have no citations to American jurisprudence, but it does have a citation to an English case, Sarpy v. Holland and Savage, 99 L.T. 317. I went looking for the English case and found the interesting article "The Evolving Role of ‘For Profit’ Use in Copyright Law: Lessons from the 1909 Act". Now, I am a bit out of my depth searching for English case law, so I am going to go back to Sony, since it's a big case that probably goes back further into American jurisprudence, though maybe not because of the 1976 Act.

It didn't take me long to find another, older, case involving music, White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 (1908).

Friends of mine will know two reasons why I picked this next case, Banks v. Manchester, 128 U.S. 244, 253:

1) I am a Manchester United supporter.
2) I live close to Manchester, NH.

Now, other cases cite Wheaton v. Peters, 8 Pet. 591, 662, 663, but I didn't want to go that far back so quickly and make you think nothing was going on in interim. I finally decided to go there though, because it's a very important case.

Sadly, from the 1834 Wheaton v. Peters case we only get citations to English law again, which Google Scholar doesn't have. What's interesting though is that at least as recently as 2005, NY courts were still citing the English cases Wheaton was citing. Google is awesome, because you can see how that English case was cited.

Now, I could go back through the state cases for NH or MD, but I think you've gotten some good insight into the web that cases weave. Once you read all of the cases listed and all the cases those cases cite, you'll be ready to be a copyright lawyer*!

*and law school and passing the bar, of course

Saturday, July 7, 2012

Copyright Extension or Die!

This is not legal advice. Leave audio feedback at (512) 686-6329.

Oh, I guess you just had to be there.

Nick and I were going to record a show about the Public Domain and Golan v. Holder today, but his Internet is down. Right now we are planning interviews with CC Korea, CC Japan, CC South Africa, CC Nigeria, a few guys from C3S, Kat Walsh and Gurdonark, so who knows when that show will actually be recorded.

I did almost finish this prep article for it though, so I wanted to share and unless Google decides to close Blogger (please don't get any ideas), I can still refer you back to this article on Eldred v. Ashcroft.

I wanted to do an article on Eldred because in Golan Justice Ginsberg relies heavily upon it. Since Nick and I only have limited time when we sit down to do a recording, I thought a little background information would be useful. Both Eldred and Golan heavily discuss international law and for the most part that is not something I will be talking about today or when we do the Public Domain show. We have already discussed some issues in international law with Glyn Moody and with Manuel Godoy-Luque and if you were paying attention earlier, you saw the names of some African and Asian countries that are coming up.

Wikipedia already has a recap of Eldred v. Ashcroft and the text is freely available on Google Scholar. Thus, I was wondering what new information I could bring to light. What I thought might be best if I spent some time going back and briefly recapping the cases Eldred uses. In US law cases build on cases, which build on cases, which build on cases (and of course statutes and the Constitution). It would be silly to try to go back to the beginning and see the cases that the cases I mention below site and end up and the first recorded English cases. I do think it's worth going back a little ways though. If people find some of the cases I mention confusing, I can easily go back further.

The lawyer for Eldred in this case was of note for those interested in Creative Commons: Lawrence Lessig. This is a fact I did not know until doing research for this article. Also of note is that everyone's new favorite judge post-Apple decision, Richard Posner, weighed in in the decision.

US Constitution

The Constitution is obviously not a case, but it is important to understanding both Eldred and Golan. In Eldred, SCOTUS takes a literal view of the term "limited times". SCOTUS backs up this narrow view of the phrase by looking at previous copyright acts. In all previous copyright acts, as well as patent acts, when there was a term extension for future works, works currently under copyright always got the bump as well.

The First Amendment to the Constitution also plays a major role in the case, or rather, in Eldred's arguments. SCOTUS decides that because fair use is already built into copyright, there is no need to look further at First Amendment rights.

Harper and Row v. Nation Enterprise, SCOTUS

For those that want to see a strong fair use, Harper and Row is a disappointing case. The case holds that even 300 to 400 words of text from a 500-page book might not be considered fair use, even when the information is fact-based and about a public figure.

Fair Use is intensely fact-specific, so for music this case probably doesn't give us a lot of guidance, but it is fair warning that you need to be extremely cautious before proclaiming fair use if you plan on using your material for any sort of commercial gain, including advertising on a website.

Sony v. Universal, SCOTUS

Time for a history lesson, kids.

Q: What is a "Betamax"?
A: It's like VHS.

Q: What is VHS?
A: It's like a audio cassette...oh, nevermind.

Actually, it's probably important that you know what Betamax is because Sony v Universal may very well be the most important copyright case in existence (Google says it has been cited 6597 times). There's no doubt we are doing you a disservice if we don't talk about it. However, unless people want more, this may be the last time we talk about it on the blog for a while. The reason it's important to know what Betamax is is because it is the same reason we might not talk about it much here. The laws for music and video are very different. For example, there's the Cable Communications Act and two later acts.

Sony v Universal is important for file-sharing, which is why I think it might be the most important copyright case ever, but with Creative Commons sharing is always legal.

For the purposes of understanding Eldred, what we get from the Betamax case is that SCOTUS is deferential to Congress, which is a piece of information one could get from many cases.

While the case name is Sony v. Universal, it's important to not that perennial copyright douchebags, Disney, were none too pleased with the existence of Betamax.

Feist v. Rural Telephone Service Co., SCOTUS

On Thursday, I mentioned this case in relation to the copyright ability of facts. Here, we are a dealing with "originality". Even though old works are no longer original because they were made in the past, the Court says that Feist deals with the definition of "authors", not the definition of "limited times". Basically, one simply does not author facts.

Since music almost by definition creative, this is of limited value for us. However, it's important to note that you can write a song about phone numbers (or any other list of facts).

Graham v. John Deere Co. of Kansas City, SCOTUS

This is a patent case. The patent case is here not because patent law and copyright law are similar, but because they come from the same place in the constitution. If you want to dig into the patent stuff going on in Graham, you might want to read the older case Hotchkiss v. Greenwood too. Again, we can do that over at OSP if people are interested.

Graham states that the constitution places a limitation on Congress' grant of power. That's important because the US would not be able to ratify a treaty that, for example, gave infinite copyright.

Bonito Boats v. Thunder Craft Boats, SCOTUS

Bonito Boats is a case about preemption, a topic we've covered a little on the blog in the past. It's actually about *patent* preemption, so what's going on here? Eldred isn't a preemption case. However, the case does help answer the question of who holds the power when it comes to copyrights and patents: Congress. Again, the two are tied at the constitutional level, not the legislative level, and Eldred is a constitutional challenge to the 1998 extension. 

Turner Broadcasting v. FCC, SCOTUS

I included this one mostly because of the more recent FCC ruling, and thought people's awareness of that case might help people make connections. More prevalently than the Betamax case which I mentioned above, this case deals with telecommunications law. SCOTUS explicitly makes this distinction.

Let us know if you want that Public Domain audiocast. We can try to do it sooner rather than later if there is demand! For now, I hope you have some insight into Eldred. Make sure you read the synopsis on Wikipedia too!

Additional Resouces

Intellectual Property by Ghosh, et. al, pages 79, 239-254 (excerpted case with notes), 1181, 1182-1190 (excerpts from brief for amici curiae).

Thursday, July 5, 2012

What's Property Got To Do With It?

This is not legal advice. Leave audio feedback at (512) 686-6329.

Plenty of people think "intellectual property" (IP) is a terrible term, but I think the term is here to stay. In the legal world, there are at least seven ways to acquire possession of an item: purchase, discovery, capture, creation, find, gift and adverse possession. IP comes from the creation portion of that, though there is more to creation than IP. For example, any property rights you hold in your physical body come from the creation aspect.

My Property class used the seventh edition of a book simply called Property by Dukeminier, Krier, Alexander and Schill. Apparently Dukeminier has been dead a while but they keep his name on the book because he is so famous.

Most people in the music world think of IP as copyright and publicity rights and most people is software think of it as copyright and patents. However, those are not the only types of rights in IP and the four cases Dukeminier uses in its IP section illustrate this. I wanted to discuss these cases briefly so people can get inside the head of someone from the IP lobby (MPAA, RIAA, etc.).

INS v. AP, SCOTUS, 1918

This case is so important that we discussed it both in Property (page 56) and IP (pages 692, 765 and 1051 in the Ghosh book I've mentioned several times previously on this blog). Not only was it a SCOTUS case, but has a famous concurrence written by one of the most famous judges (lawyers like to call them jurists) of all time, Oliver Holmes, Jr. The opinion is well worth a read if you want to dig further, if for the sound bites alone.

INS created the "hot news" doctrine. In fact, if you search hot news on Wikipedia, you'll be directed to the article on the INS opinion. And, knowing that it's all about news, you might have guessed that AP in this case is Associated Press. International News Service was a rival. Wikipedia didn't tell me what happened to them, but it looks like they are no longer around.

While the case is all about copyright (and common law copyright), I want to point out that there is some (IMO) serious censorship going on here. The beef between AP and INS came about because INS was barred from getting news straight from the source because they, well, reported the news. AP apparently left out any bad news and thus was allowed to continue delivering the propaganda news.

So, what is "hot news"? It's something akin to modern day unfair competition laws. Under the hot news doctrine, no one can mess with your "stock in trade to be gathered at the cost of enterprise, organization, skill, labor and money, and to be distributed and sold to those who will pay money for it."

On top of the Cheney Brothers case below, I agree with Wikipedia that to understand what INS means today, you also need to read Feist v. Rural and National Basketball Association v. Motorola, Inc.

Cheney Brothers v. Doris Silk Corp, 2nd Circuit, 1929

Like INS, this is an old case.The most likely explanation for its inclusion by Dukeminier is that it was written by another famous white guy, Learned Hand. He may have been an arrogant [insert favorite expletive], but actually "Learned" is a family name that he took to be his first name at some point. Billings is the dude's first name.

The other reason for its inclusion would be that it applies the INS opinion narrowly, to just news. It shows that the "sweat of your brow" doctrine of copyright is not so much a copyright doctrine as an unfair competition doctrine. Of course, the question becomes, why did Cheney not seek unfair competition protection? Well, this is a complicated question and my book doesn't talk about it. It might be that people generally thought this sort of stuff was preempted by the 1909 copyright act. The 1976 copyright act (the current one) has been said to preempt "hot news". It may be that there was no unfair competition laws in New York at the time. It could be that the lawyers just didn't think about it. I am, after all, looking back on it with 83 years of hindsight.

Remember, the point is not to get bogged down in the details of these cases (though I can do that if people want). The purpose is to get inside the head of someone that is a copyright or patent maximalist. Seeing how these cases tie to more traditional property law is one way to do that.

Smith v. Chanel, Inc., 9th Circuit, 1968

Yes, that Chanel. This is a case about a fragrance.There's nothing in the Constitution that says that you can't copyright smell or taste, unless you read "writings and discoveries" very narrowly, which of course puts lots of things, such as sound recordings in jeopardy. However, Congress has never given copyright to smell or taste. This case is about the intersection of copyrights and patents, something important to the software world. Chanel could have patented a new chemical for their smell, but it would only last for 20 years (let's ignore any potential anachronisms about knowing chemical structures or changes in patent law, for the sake of argument).

The main take away from this case is "a large expenditure of money does not in itself create legally protectable rights." Remember this is a 9th Circuit opinion from 44 years ago. If you need legal advice, see an attorney licensed in your jurisdiction.

White v. Samsung Electronics America, Inc., 9th Circuit, 1992

This is another case so important/controversial that we discussed it both in IP (page 745) and in Property (page 66). The 9th Circuit is often called the Hollywood Circuit, and this case shows you why. The 9th Circuit is absolutely huge, but does, of course, include Hollywood.

So, what does this case? Primarily, it says you should never support Wheel of least not until Vanna White dies (she's 55, so let's hope it's a long time). That's what I get out of it.

If you're reading this on mobile, you can check out the picture at the top of the normal site or on Judge Kozinski Wikipedia article. Judge Kozinski's dissent on the denying of a rehearing on this case is worth quoting at length:

This is why intellectual property law is full of careful balances between what's set aside for the owner and what's left in the public domain for the rest of us: The relatively short life of patents; the longer, but finite, life of copyrights; copyright's idea-expression dichotomy; the fair use doctrine; the prohibition on copyrighting facts; the compulsory license of television broadcasts and musical compositions; federal preemption of overbroad state intellectual property laws; the nominative use doctrine in trademark law; the right to make soundalike recordings.[20] All of these diminish an intellectual property owner's rights. All let the public use something created by someone else. But all are necessary to maintain a free environment in which creative genius can flourish.
Yeah, what he said.