Cuckoo Kookabura — Culture as the Language of Art

I wrote in November of the claim by the owners of the copyright in the Australian chestnut Kookaburra Sits in the Old Gum Tree that Men at Work had infringed Kookabura’s copyright in their 1981 #1 hit Men Down Under. The claim is ridiculous. As the Sydney Morning Herald reported at the time, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But now, as Celebrity Justice (among others) reports, “[a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra tune and will now owe some of their royalties to the publishing group who bought the rights to that song in 1990.”

As CNN reports, the judge in his decision wrote that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the ‘hook’ of that song.”

Whether the judge’s decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this question is not merely the result of the argument that I made in my November post — that the “transformative” nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able to “quote” works that have resonance and meaning in our culture is fundamental to artistic creation. Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is as resonant a way to convey Australia as there is.

Instead of recognizing what Lewis Hyde calls the “Cultural Commons,” many people have the knee-jerk impulse people have to identify cultural creations as “property” and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can’t have a pig farm in the middle of a suburb, you can’t paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder, creation, and the sooner we under what creativity really involves the more creative a culture we’ll have.

You be the judge: are Men at Work plagiarists or composers?

Cukoo Kookaburra copyright claim

In 1980, Men at Work released Down Under, and in 1981 it was a #1 song in Australia, Britain, and the U.S. In 2007, 26 years later, a game show contestant identified Kookaburra Sits in the Old Gum Tree as the nursery rhyme the song’s riff was based on. The contestant needed prompting. It’s no surprise he had trouble thinking about where the tune had come from. As the Sydney Morning Herald reports, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But that didn’t stop the copyright holder from suing Men at Work, despite the fact it had bought the rights to Kookaburra in the 1980s “when it bought them for $6100 from the family of its late composer, Toorak School teacher Marion Sinclair.” In fact, one of its managing director’s jobs was to track down unauthorized uses — it’s a wonder he hasn’t yet gotten to the school chorus version below.

The mere fact the use went unnoticed for so long is itself, I think, evidence that its use in Down Under is fair use. If something is so transformed that it isn’t noticed even in a #1 hit, it must be transformative, right? I think Shepard Fairey’s Obama Hope poster is fair use for a similar reason — the photographer himself didn’t realize the poster was based on his own photograph. Copyright claims like the one against Men at Work pervert the very basis of so much we call creative. As the Morning Herald states, “The reuse of riffs is as old as rock’n'roll. And it’s a good thing, according to Martin Armiger, former member of the Sports and composer of music for The Secret Life of Us and Young Einstein. The 1955 hit Louie Louie by Richard Berry became the template for hundreds of songs including the Troggs’ Wild Thing and the Beatles’ Twist and Shout, he pointed out in his expert evidence for Men at Work and EMI.”

Or, as the KLF puts it, “Every Number One song ever written is only made up from bits from other songs.”

Ideas, originality, and copyright. Coldplay accused of infringement again.

One of these days we’ll learn what the KLF long ago tried to teach us about pop music: “Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality.”

Let’s get a basic point straight: copyright does not protect an idea. As the U.S. Copyright Office puts it: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section ‘What Works Are Protected.’”

So it may be true, as Consequence of Sound reports, that “just days after settling with Joe Satriani over plagiarism allegations, [Coldplay] is now being accused of copyright violations by UK musician Andy J. Gallagher for borrowing from Gallagher’s “Something Else” video with their video for ‘Strawberry Swing.’” But being accused of copyright violations and having those accusations deemed worthy of anything other than contempt are two entirely different things. As the Guardian explains, “there’s no doubt that [Gallagher's] and Coldplay’s music videos offer ‘an awful lot of similarities’. Or rather, one big similarity: they both show people interacting with animated chalk-boards.” And it may even be true that, as Gallagher complains, it seems “less than fair that [Coldplay's] video will win numerous awards and receive industry praise when [Gallagher's] director Owen Trevor had the idea the year before.”

But the answer is: so what? You cannot copyright the idea of a video involving people interacting with animated chalk-boards. As the producers of Coldplay’s video point out (pdf), the idea was hardly original with Gallagher. Nor do they claim originality; rather, they claim to have worked hard at making the Coldplay video:

We’re aware of those videos, and I don’t wish to denigrate them, but we thought there was more mileage in the technique than they had explored. We never claim to be original, just rigorous. So we wrote a story we thought would be entertaining and went about making it. It was a lot of hard work.

The specific video they produced may be original, but it hardly precludes anyone else from making videos involving people interacting with animated chalk boards.

Oregon Attorney General is rethinking his copyright claim; I’d advise him to back off.

In Oregon, there’s an interesting and seemingly misbegotten effort by the state’s attorney general to assert the right to enforce a copyright in the state’s official documents. As the Oregonian reports, “Oregon Attorney General John Kroger met with a group of journalists in July and pledged to review the state’s public records act to make sure that it’s working properly. Kroger told the group the work would take some time but that it is “very important for me to get this right.” The review was provoked by a law professor who has posted to a web site a scanned copy of the Attorney General’s Public Records and Meetings Manual on his web site. “But the attorney general sells the 326-page book for $25 a pop, mostly to law firms and other state agencies. Kroger’s spokesman, Tony Green, says that’s how the AG’s office makes back the cost of producing the book.”

I suspect the Attorney General’s review will result in the state taking no action. According to L. Ray Patterson and Craig Joyce, in “Monopolizing the Law: the Scope of Copyright Protection for Law Reports and Statutory Compilations,” 36 UCLA L. Rev. 719, 723 (1989), the U.S. Supreme Court in 1834 held that “opinions of the Court are not copyrightable, and that holding remains the law. Subsequent cases and the present copyright act reinforce and expand upon the point: the law, whether in court opinions or statutes, cannot be reduced to property through copyright, whether by individuals or by the government itself.” (footnotes omitted)

ADDENDUM: William Patry writes in his treatise on copyright, Patry on Copyright, Secton 4:59, that

[J]judges, legislators, and by extension all government employees are paid by the public for performing their duties. Having paid the salaries, the public is deemed to own the fruits of the employees’ labors, a kind of work for hire. To grant copyright to employees for works created in the course of performing their duties would result in double payment. Moreover, having received their salaries, government employees do not need the additional incentive that copyright provides; the same logic applies at the institutional level. (footnotes omitted)

The EFF surely wants Jammie Thomas not to settle at any price, while the RIAA, even though it won $1.92 from a jury, surely wants her to, likely for any price.

Mike Masnick of Techdirt reports that the RIAA is anxious to settle the case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Masnick writes, the RIAA “seems to recognize that the insanity of the $1.92 million doesn’t do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the ‘risks’of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.”

Masnick writes too that he’s been expecting Jammie Thomas to settle “but the longer this goes on, the more I wonder if she’s actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations.”

Mike is more right than he may know. Any lawyer interested in challenging the constitutionality of the statutory penalties imposed by the Copyright Act would want to represent Jammie Thomas on this appeal. When a lawyer looks to challenge a law, if he’s got any sense he doesn’t challenge it via any case that happens to come up. He chooses a case that presents especially good facts for the challenge. The EFF would love to have Jammie Thomas appeal – no case involving a defendant found liable for illegal downloading would be a better vehicle for bringing the challenge to the statutory penalties.

When law doesn’t match up to reality, law loses – Connie Schultz makes an unworkable proposal.

I deeply admire Connie Schultz, but I think she was mistaken in her column yesterday that called for a change to federal copyright law that would give “news originators” the exclusive right to the news they report on their web sites for the first 24 hours after publication. The “remedies” to enforce this exclusive right would include (1) a requirement that online “aggregators” would have to “reimburse newspapers for ad revenues associated with their news reports” and (2) “injunctions” to “bar aggregators’ profiting from newspapers’ content for the first 24 hours after stories are posted.”

Ms. Schultz shows her desperation to save newspapers in calling for immediate action, implying that waiting even 6 months before enacting this law would be to wait too long.

There’s a lot wrong with this proposal I won’t go into right now with respect to the purposes of copyright law (h/t to Natalie Gauthier, on Twitter @nggautier). Here’s my problem with it merely in my capacity as a business advisor (as much a part of being a commercial lawyer as knowing the law). It’s utterly unworkable. An injunction against use is no remedy — to be effective, an injunction needs to be enforceable. How in the world is a newspaper going to enforce its exclusive right to a story against use by anyone anywhere in the world on the internet? Second, to whom do these rights and restrictions really apply? Who’s a news source? Am I when I publish something online based on my own research and thinking? When is what I publish my own research and thinking and when is it merely “aggregation.” And am I an aggregator, or just a unicellular organism floating in the vast oceans of the information and news available around the world? When would I cross the line?

It’s an utterly unworkable proposal.

I have a lot of sympathy for Ms. Schultz and her position. I’ve grown up worshiping journalists. (To be an adolescent leftist poseur back in the early ’70’s meant worshiping the New York Times and the Washington Post.) And, as my dad complains, there is a really profound problem in the loss of the check newspapers have traditionally provided with respect to local events.

But there’s no going back. Law is not going to stop the inevitable consequences of the change in technology we’re experiencing. I’m not suggesting we’re in for a wonderful new world. We’re losing a lot, and I share with Ms. Schultz the desire to save it all. But we’re not going to. We’re going to have new things. Here’s one, for example, courtesy of the artist Daniel Nolan (on Twitter @danielnolan). There’s been very little news out of Iran. What’s going on in the streets, if anything, is a matter of intense interest around the world, but newspapers have largely been rendered unable to report on events thanks to the moves of the Iranian regime. But yesterday I received a tweet from Dan that referred me to Andrew Sullivan’s blog that was reporting that instead of appearing in front of his supporters in person Mir-Hossein Mousavi “instead delivered a speech to his supporters via cell phone. The speech was then captured on camera by a demonstrator, uploaded to Facebook, picked up on Twitter, and delivered to you through this blog. And now it’s on YouTube.” As Dan put it on Twitter, “[i]f scoring at home, that’s Mousavi – cell phone – camera – facebook – twitter – blog – youtube. Now that’s an alternative info stream.”

I’m not suggesting that is the equivalent of haveing a foreign corresondent on scene (but there are no western jounralists in Tehran as far as I know), but it’s extraordinary. There have got to be better ways than Ms. Schultz’s ill-conceived proposal to make the transition to what the new technology makes available and what the new technology makes inevitable. The way is not going to be through a rather simple law. When law doesn’t match up with reality, law loses, but worse, so do we. Make intoxitants illegal, and our prisons become jammed with non-violent offenders. Don’t provide legal means to immigrants motivated to get here, and you end up with millions of undocumented residents. Outlaw abortion and you expose the poor to unregulated and unsafe medical procedures. Refuse to adapt the marketing of your product to new technologies, and engage in ineffective litigation that results in blatant injustice. . .

Google’s Library of Babel and its opponents.

Steven Shankland has written a good piece on the proposed settlement of the lawsuits over the Google Library Project; the proposed settlement is “now under review by Judge Denny Chin of the U.S. District Court for the Southern District of New York.”

Under the proposed settlement, the owners of copyrights in books would need to opt out of the project to prevent Google from including those books in its Library database, which is being compiled by scanning the libraries of several major insitutions around the world. As Shankland points out, “that means essentially that Google would be permitted to show content from in-copyright, out-of-print books and sell online copies of those books even without an explicit agreement with the books’ rightsholders.” Copyrighted, out-of-print books constitute approximately 70 percent of the books in the library collections Google is scanning, and that 70 percent includes the vast majority of “orphan works” in those libraries. Orphan works are works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.

Nevertheless, some authors continue to oppose the Google Library Project:

“Under the actual law, it is Google’s burden and not yours to ask you for permission and then fairly negotiate terms of contract acceptable to you personally, not jam some monstrosity down your throat,” said Lynn Chu, a literary agent with Writers’ Reps who also called the proposed settlement a “ripoff for authors” in a Wall Street Journal opinion piece.

As a business matter, I don’t understand the view Chu expresses, as I’ve previously written. Why would someone whose work is out-of-print not want that work accessible to the general public? And if that someone wants to keep his work in the obscurity resulting from being out-of-print and available only at some far off insitution’s library, he can always opt out. Chu says that the “actual law” requires Google to ask permission first, not for the copyright holder to deny permission, but the wonderful thing about contracts (and a settlement is a contract) is that they can be a means parties have of altering the rules that govern their relationships in the absence of agreement.

I’ve been a fan of the Google Library Project since it was announced in 2003. It promises to make available for search the collections of many of the greatest libraries in the world. Google will only be able to display brief snippets of works that are in print and under copyright, but even that access will make known to researchers the availability of sources they never otherwise would have been able to find. The Project is one of those endeavors that make the internet and the digitization of information truly revolutionary and magical. It would be a shame if copyright law founded on old technologies and the unfounded knee-jerk reactions of copyright holders (it’s mine, and that means you can’t do anything with it without my permission!) were to end up preventing the realization of revolutionary magic.

Finally, Shankland points out that there is concern over the settlement because it would give Google an advantage over competitors: “Microsoft, Amazon, or the Internet Archive . . . –without their own handy class-action settlement [--] would be have to try to seek such permission in advance from each rightsholder or risk copyright infringement litigation.” But if copyright holders and their representatives are willing to reach this settlement with Google there’s no reason to suppose they wouldn’t with Microsoft, Amazon, or the Internet Archive. Google’s competitive advantage is the result of its initiative and daring in starting the Project in the first place and developing technology (including new scanning technology) to make it truly possible. Advantages gained by daring and initiative should be rewarded by the law, not stymied.

People have always remixed their cultural artifacts; the internet has made them publishers.

Rene Kita has a terrific post on copyright law and “remix culture.” His point is that we’ve always engaged in remixing existing copyrighted works circulating in our culture, but the internet has transformed these perfectly typical activities into “published” works:

There’s the problem. People have grown up in a fair use zone where you could do anything with culture and they expect this to extend to their Internet living rooms, in which they typically converse with a few dozen friends. Funny Photoshop transformations of Brad Pitt’s face? Lawyers at your door. Insert ‘poops’ into that Britney Spears song? Lawyers again. Lose your house paying your defence lawyer.

You see, lawyers have this fictional creature known as The Consumer. That’s all of us, but stripped of any urge or ability to get creative. And then there is that other mythical monster called The Artist, who creates works from scratch – or gets hauled into courts for theft. Neither of these phantasms has anything to do with how human culture actually works.

Kita concludes that it is this misfit between the law and normal human activity that underlies the anger people feel at the tyrannical assertion of copyright:

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry – unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

Perhaps I do accept that there should be a way for creative artists to make a living with their craft, but if it comes at the cost of turning the rest of humanity into passive consumers, I say it is not worth it. We need a completely different way of showing our appreciation to artists.

How online video creators can make remixes, mashups, and other common online video genres.

American University Professors Pat Aufderheide and Peter Jaszi, have produced the video below in their capacity as principals in American University’s Center for Social Media and AU’s Program on Information Justice and Intellectual Property. The video was produced in collaboration with Stanford Law School’s Fair Use Project, and explains how online video creators can make remixes, mashups, and other common online video genres with the knowledge that they are staying within copyright law.  (Professor Jaszi happens to be a favorite scholar of mine.)

Lessig’s Conversation of Remix – fair use? Warner Music doesn’t think so.

Lawrence Lessig’s lecture on remix culture, posted to YouTube, was the subject of a DMCA takedown notice by Warner Music. As Lessig explains, “Apparently, YouTube’s content-ID algorithm had found music in the video that they claimed ownership to.” The uploader’s protest to the takedown notice was apparently successful, which reinstates the video while Google reviews the legitimacy of the fair use claim against Warner Music’s copyright infringement claim.  Lessig’s blog post, along with the entirety of his lecture, is here.  Below is the segement that was blocked and is, for now, restored:

Here’s more on DJ Danger Mouse’s Grey Album. And more on Girl Talk here, here, and here.

Stop those dangerous . . . er, player pianos!

Copyright legislation throughout history has primarily consisted of congressional efforts to preserve financial interests threatened by new technologies. We are, of course, living through a technological revolution right now, so we are living through copyright wars. 

But who knew the 1909 Copyright Act (in effect until the current one was enacted and signed into law in 1976) was a response to the threat posed by . . . yes, PLAYER PIANOS!

Music publishers, who had secured their rights in sheet music, were freaked out at the thought there might be mechanical reproductions of their music they wouldn’t be paid for. As Mike Masnick explains it at Techdirt

The big innovation of the 1909 copyright [Act] was compulsory licensing on mechanical rights. This was put into place for one reason: fear about player pianos and how they would dominate the market and destroy the need for musicians. Within a matter of decades, the player piano market was effectively gone… and yet, these massive changes designed solely to deal with the player piano have stuck around ever since. Now apply that same story to basically every other technological innovation, and that gets you copyright law.

You don’t have to look far to find a current example that proves Mike’s point.  Amazon’s Kindle2 ebook hit the market with the capacity to read the electronic texts loaded into it aloud in a computer-generated voice. As afterdawn reports, “the Author’s Guild saw this feature as a“performance” when used and pressured Amazon to allow publishers to decide on an eBook-by-eBook basis whether to enable the feature or not.” Whether this new technology represents a genuine threat to the existing financial interests of publishers and/or authors is pure speculation, but the Author’s Guild is adamant:

 We will not . . .  surrender our members’ economic rights to Amazon or anyone else. The leap to digital has been brutal for print media generally, and the economics of the transition from print to e-books do not look as promising as many assume. Authors can’t afford to start this transition to digital by abandoning rights.”  

Of course, the Authors Guild was the lead plaintiff in the lawsuit directed at shutting down a much vaster and more revolutionary technological advance, the Google Library Project.  As I have written, I never understood what good they possibly have been doing themselves if they’d stopped that project.  Nor can I understand their efforts to stifle the transition we plainly are going through into electronic books.  

But now I know: you see a machine that can reproduce your “property,” and all you can think is you’ve got to stop that machine.  Even if it is just a player piano.

Is republication of Mark Cuban’s tweet on Twitter non-infringing? Almost certainly it is.

Mark Cuban asks:

Here is a question for all you legal scholars out there. Is a tweet copyrightable? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

Well, sure, a “tweet” might be protected by copyright. The more creative it is, the more powerful is the protection. Cuban wouldn’t be wondering whether a 140 character poem by William Carlos Williams could be protected by copyright.

The question would only come up, though, if the author of the tweet was claiming someone had infringed his copyright. If Cuban, for example, claimed ESPN were infringing the copyright in his tweet, I strongly suspect the use would be a non-infringing fair use. Nevertheless, my ultimate conclusion would require consideration of the specific message Cuban is talking about and application of the specific facts in dispute under the appicable analysis:

(1) What is the nature and character of the allegedly infringing use? The more creative it is in its own right or the more it is an instance of the type of expression protected by the First Amendment (journalism or political speech, for example), the more likely it is to be a non-infringing fair use. The fact ESPN, an outlet for sports journalism, would be transmitting the words of Mark Cuban, the owner of a sports franchise (the Dallas Mavericks of the NBA), makes it seem more likely ESPN is engaged in legitimate journalism . . . , but

(2) What is the nature of the copyrighted work? The more creative or journalistic or political the expression, the less likely use of it without permission will be fair use. And the fact the work is available anyway would cut in favor of ESPN’s use of it being a fair use. This factor is almost impossible to determine based on Cuban’s hypothetical question. There can be 140 words that are as creative and expressive as anything can be (think Shakespeare or William Carlos Williams), or the 140 words might be utterly an utterly generic report about facts Cuban is passing on, or the 140 words might be mostly lifted from someone else. So which way and how hard this factor would cut on this hypothetical is without examining the specific words difficult to tell. It is, nonetheless, difficult to believe much creativity would be produced by Mark Cuban in a tweet. Moreover, the fact Cuban has already transmitted it via Twitter to everyone that follows him indicates that he doesn’t have that strong an interest in controlling the use of the words.

(3) How much of the copyrighted work is taken? Assuming ESPN takes the entire 140 characters, I suppose this factor cuts against ESPN’s claim of fair use, but, of course, the brevity of the entirety (under factor 2) cuts in favor of fair use, so in the abstract the two factors nullify one another. This is one reason hypothetical questions are useful, but only of limited use, in answering legal questions. One can only take abstract hypotheticals so far. 140 characters written by Shakespeare in a play are probably very different than 140 characters written by Mark Cuban in a tweet, but they might not be.

(4) How much does the allegedly infringing work affect the market for the copyrighted work? Is there a market for Mark Cuban’s tweets? It’s hard to believe there might be.

In short, I’d advise Cuban to be very light-hearted and laid back about ESPN republishing his tweets. If he really thinks he’s got something so worthwhile he should have the exclusive right to its commercial value, he shouldn’t have put it out on Twitter in the first place.

U.S. Journalism is nothing but he says, she says

What has happened to journalism in this country?  All journalists do is quote one side of an issue and then quote the other side.  Rarely do they engage in meaningful analysis, and when it comes to legal matters they’re often just plain wrong.  In this Wall Street Journal article, the reporter quotes one law professor who says that Shepard Fairey has nothing to fear in his lawsuit against AP in connection with Fairey’s Obama Hope poster, while a lawyer thinks AP will prevail.

I’ve said before: I don’t even think it’s a close case.  Fairey will win. You can call me on it if it turns out I’m wrong.

How do we promote creativity?

One common theme that runs through my views regarding intellectual property is that there is way too much treatment of intellectual property as the equivalent of real property (that is, land). I can fence off my land and keep everyone off of it. Therefore, too many feel, I can fence off my intellectual property and prevent anyone from doing anything with it that I don’t give them permission to do. One commenter on my post last week regarding Shepard Fairey’s Obama campaign poster manifested this confusion about the differences between real property and intellectual property. I think the authors who didn’t want their books to be accessible for word searches via the Google Library Project did as well.

My greatest knowledge about intellectual property concerns copyright. The first thing to know is that copyright is a relatively recent legal creation and that tall U.S. copyright law exists by virtue of and within the limits of 27 words in Article 1. Section 8 of the U.S. Constitution:

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

In other words, copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Works that are genuinely creative in their own right but appropriate copyrighted works (Girl Talk and Shepard Fairey, among many others) therefore have a very strong claim to legitimacy as long as they do not exploit the market created by the original work. Indeed, that’s exactly what the fair use doctrine is intended to allow and is beginning to reflect.

My views are shaped to a considerable degree by my belief that all creativity is grounded in previous work, and that the more leeway the law gives to appropriation the more creativity we will have. Of course there are limits. You cannot entirely rob the artist of the financial profits of his work. But using that first artist’s work in an altered way that creates something people want for reasons entirely different than the reasons they wanted the original work does not rob the first artist of the fruits of his labor. Rather, it allows someone else to sprout new fruit.

Apparently, IBM shares this attitude with respect to inventions it could patent. As Securing Innovation reports:

IBM used the occasion of the recent announcement of its 2008 patent record to introduce plans to help stimulate innovation and economic growth. The company plans to increase by 50% — to more than 3,000 — the number of technical inventions it publishes annually instead of seeking patent protection.

Why? According to IBM’s press release:

Publication of technological information is one means to “promote the Progress of Science and useful Arts” the phrase in the U.S. Constitution giving the Congress the power to enact patent laws. Publication protects inventors from allegations of infringement by placing the intellectual property into the body of prior art. Publications also improve patent quality, since they can be cited by patent offices in limiting the scope of patent applications. Publication also helps spur follow-on innovation that ensures dynamic business growth.

While IBM will continue to seek patents and will protect its intellectual property, its planned increase in publishing inventions will focus on those technology areas that will increase the build out of a new, smarter infrastructure. The evolution of IBM’s policy builds on prior efforts to stimulate innovation by pledging not to assert certain patent rights in the area of open source software, health care, education, the environment, and software interoperability.

Copying or transforming?

Brian Sherwin of myartspace>blog is very upset with Shepard Fairey for creating the Obama poster (pictured on the left) because Fairey produced his image by, first, stenciling the original photograph pictured on the right. Fairey never attributed the image to the photographer and, of course, never compensated him. I don’t share Sherwin’s umbrage. The photo on the right is a generic image that is indistinguishable from photos seen constantly the world over these last several months. The image on the left became a resonant symbol. The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative” of the photo.

Lawrence Lessig on The Colbert Report

Art exposing law: Pirates of the Amazon

Here’s some art trying to express the tensions between technology allowing the instant worldwide dissemination of a work and the law that evolved to deal with an entirely different set of technologies. DailyTech reported that a Firefox plug-in named “Pirates of the Amazon had been developed that allowed its users to immediately identify free alternative online sources for any product they found on the Amazon.com website. Within a day, Amazon’s lawyers had filed a takedown notice. Subsequently, someone put up a website stating that the plug-in had been created as an art project meant to illuminate issues raised by today’s “media culture”:

“Pirates of the Amazon” was an artistic parody, part of our media research and education at the Media Design M.A. course at the Piet Zwart Institute of the Willem de Kooning Academy Hogeschool Rotterdam, the Netherlands. It was a practical experiment on interface design, information access and currently debated issues in media culture. We were surprised by the attentions and the strong reactions this project received. Ultimately, the value of the project lies in these reactions. It is a ready-made and social sculpture of contemporary internet user culture.

One day after publishing we received a take down request by the legal department of Amazon.com.

This work was made as a trimester assignment in our study course, under the supervision of our tutor Denis Jaromil Rojo and our course director Florian Cramer. This page is now the documentation of our study work as required by the course.

To further confuse matters, DSLReports.com wonders if the claim the plug-in was an art project was “simply a post-release attempt by the plugin’s author to cover his legal posterior.” I would suspect, though, that the project really was an art school endeavor. Denis “Jaromil” Rojo “is an artist and a FOSS hacker. . . . popularly known for Dyne:Bolic (http://www.dynebolic.org/), a Live CD distribution . . . . As a programmer, he is author of several free software that present new possibilities for online radios. Jaromil is identified as a “tutor” for the 2008-09 academic year on the Piet Zwart Institute’s web site, and Florian Cramer is identified on the same site as the “course director of the Media Design M.A. programme.”

ADDENDUM: Florian Cramer writes in the comments to thank me for the “balanced” coverage and to add that the indication the site was an art project was made clear on Pirates of the Amazon from the beginning.

Scrabble v. Scrabulous redux

There are many examples of what I wrote about yesterday — lawyers prosecuting a lawsuit on behalf of a client who in fact would be better off not suing even though his claim might be a legitimate one — but there are few better than the one I wrote about here in November: Hasbro’s lawsuit against the creators on Facebook of Scrabulous, brought because, in the words of Hasbro’s lawyer, “Hasbro has an obligation to act appropriately against infringement of our intellectual properties.”  As Eric Eldon wrote yesterday in Venture Beat, “Hasbro owns the Scrabble copyright for the U.S. and Canada and forced Scrabulous to go offline in those countries at the end of July; Mattel owns the rights to Scrabble everywhere else and followed in Hasbro’s footsteps a month later.”  The problem is that now Hasbro’s product on Facebook and the product newly produced by the creators of Scrabulous are splitting a smaller audience on Facebook than Scrabulous alone had on Facebook even as Facebook’s participation climbs precipitiously.  Eldon suggests it would’ve been much wiser for Hasbro and Mattel to have entered into a partnership with the creators of Scrabulous to produce a Facebook-based Scrabble game.  Instead, the lawyers took over, and everyone is worse off:

This is exactly how not to build a Facebook app. Facebook is designed to help people share information with those they care about – geography-based licenses from another era have just gotten in the way of making something people want to use.

The e-book will open a new front in an ongoing legal revolution.

The New York Times reports today that “[f]or a decade, consumers mostly ignored electronic book devices, which were often hard to use and offered few popular items to read. But this year, in part because of the popularity of Amazon.com’s wireless Kindle device, the e-book has started to take hold.”

An e-book that works well is a dream of mine.  At any given moment, I literally am reading 25 different books.  Whenever I travel, one of my toughest choices is which 2 or 3 I’ll bring with me.  Not only are my infinitely wide, but my moods change constantly.

But as the e-book takes hold, expect a new wave in the copyright wars.  With more and more books being published in electronic form, they’ll be as easy to copy and disseminate as music is now.  So illegal copying and distribution will be inevitable.

In addition, the cutting and pasting of portions of books will create a whole new set of questions regarding fair use.  We will witness the resurrection of the commonplace book:

“Commonplacing is the practice of entering literary excerpts and personal comments into a private journal, that is, into a commonplace book or, to use a 17th century synonym, a silva rerum (”a forest of things”).  Typically the excerpts were regarded as exceptionally insightful or beautiful or as applicable to a variety of situations, and so as such they are often especially quotable. . . . The practice of commonplacing can be traced back in the European tradition to the 5th Century B.C.E. and the Sophist Protagoras.

Historically commonplacing has played an important role in education, and it has served as a vital tool of erudition.

“Boys … had to keep notebooks or commonplace books in which to record, and then learn, idioms, quotations, or figures useful in composition or declamation. Not a little of that wide learning and impressive range of quotation adorning Elizabethan literature comes from these commonplace books.” Schools in Tudor England, by Craig R. Thompson (Washington: Folger Shakespeare Library, 1958): p. 16, cf. 44.

“Students with literary tastes, in days when books were hard to come by, kept ‘commonplace’ or notebooks into which they copied out verses or prose extracts that particularly appealed to them.” The Intellectual Life of Colonial New England, by Samuel Eliot Morison (Ithaca: Cornell University Press, 1965; reprint of the 2nd ed., 1956): p. 49.

–Norman Elliott Anderson, Commonplacing in the Spiritual Traditions

Will a professor’s commonplace book require permission for the reprinting of every excerpt?  There inevitably will be questions about when the excerpts are too long, though I would imagine a collection of excerpts that are small enough and together comprise a wholly new work (a literary collage) should be considered transformative enough to constitute fair use.  Inevitably, though, there will be lawsuits arising in particular situations.

Charges of plagiarism, no doubt, will also increase.  I strongly suspect that some of the recent incidents of plagiarism involving respected writers were the results of the inevitable errors that creep into works that require an enormous amount of research.  A quotation taken during research from one work is mistaken at the writing stage as a paraphrase and ends up verbatim in the finished product.  Someone spots the quotation (a process that will be even easier when the texts themselves are all electronic), and, voilà, charges of plagiarism fly through the blogosphere and plague the historian for the rest of her career.

These legal problems are inevitable.  I’ve said it before and I’ll say it again.  Law is a product of the material circumstances in which it arises, not an abstract set of truths brought down and imposed on reality.  When the material circumstances change, the law will have to change.  We are living through the most profound change in the availability of information since Gutenberg.  The law will change, and it will be a very interesting ride.

Mr. Potato Head, Esq.

E-Commerce Times reports that “Hasbro has dropped its lawsuit against the makers of a popular online version of board game “Scrabble.” As reported last summer by the New York Times, “Looking to cut down its main competition and most high-profile copycat in the growing market for social gaming, Hasbro . . . sued the two Indian brothers behind the popular Web game Scrabulous, which has more than half a million regular users on the social network Facebook.”

Given the boost to Scrabble’s sales provided by Scrabulous’s popularity, many had wondered at the wisdom of Hasbro’s lawsuit. At the time, Josh Quitner wrote, “[A]s a tech writer and life-long student of what passes for Internet economics, I’m baffled. Is Hasbro just a stupid Potato Head? Or is this a brilliant game of Stratego?”

Mike Masnick explains:

It’s difficult to see how Hasbro could have handled the Scrabulous situation any worse. Scrabulous, of course, was a Scrabble-like game made for Facebook, which quickly became one of the most popular apps on that social-networking site. Hasbro, which owns the rights to Scrabble in the U.S., didn’t have its own version, and rather than recognize an opportunity, it chose to shoot itself in the foot, suing the brothers who created it. The Scrabulous guys eventually came back with a slightly modified game, which became quite popular as well, while many angry Facebook fans organized boycotts of Hasbro products. Prior to that, of course, the attention brought about by Scrabulous had resulted in a renaissance for the game, leading many people to go out and buy physical Scrabble sets. Yes, Hasbro took a situation that was driving more sales of the board game, and turned it into one where thousands of people were boycotting its products.

Back when Hasbro filed the lawsuit, Barry Nagler, Hasbro’s General Counsel, had explained that “Hasbro has an obligation to act appropriately against infringement of our intellectual properties.”

I’ve said it before and I’ll say it again: being a good lawyer isn’t just a matter of knowing and enforcing the law. It’s a matter of knowing and using the law to advance the best interests of your clients. The mere fact your client’s intellectual property is being “infringed” does not mean that your client’s best move is to go out and try to crush the infringer.