The film, music, and publishing industries have always cried, “Wolf!”

I’ve written before about how the film industry decried and fought the VCR. In 1982, Jack Valenti, in sworn testimony before Congress, stated that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” Of course, the Supreme Court upheld the legality of the VCR and the film industry not only prospered; it makes more money from home video sales than from from the theatrical box office.

Mike Masnick at techdirt does a far more thorough job, setting forth the long, continual, and continually misbegotten history of existing industries decrying the doom foretold by emerging technologies. He starts with John Philip Sousa, the conductor.

In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

It’s a long and hilarious history. Did you know that in the 1980s home taping was “killing” the music industry? That using your DVR is theft? That Thomas Edison argued that film projectors would kill the film industry?

The whole thing is worth reading and worth remembering next time you read a screed by Bono or Scott Turow.

Can you be original if you do nothing but appropriate the work of others?

From Wikipedia: Ophir Kutiel (born 1982), professionally known as Kutiman, is a musician, composer, producer and animator from Israel. He is best known for creating the online music video project ThruYOU, an online music video project mixed entirely from samples of YouTube videos which has received more than 10 million views. Time Magazine named it one of the 50 Best Inventions of 2009.

Here is This is What it Became, one cut from ThruYOU:

Mike Masnick of techdirt, writes yesterday, in terms that a lawyer for Gregg Gillis would love:

[T]o hear some people talk about these things, none of this is “creative.” It’s all just “copying.” In some cases it’s outright “piracy.” After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are “piracy” in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then “plays” it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves… or by taking the note originally played by someone else and doing something creative and amazing with it?

I think Masnick is right on in stating that the use of technology widely available only in the last several years to compose a work from pieces of other recorded work is “no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar.” What many fail to recognize is that the music the likes of Kutiman, Gillis, DJ Earworm and a myriad of others are producing today is the result of new technology, not a new mindset. There are plenty of people out there who would tell you that rampant sampling is the consequence of a generation without respect for property rights. But I think people who say such things are missing the real point: ten years ago, it would have been very difficult for people like Gillis and Kutiman to compose the work they compose today. Twenty years ago it would have been impossible without efforts few but the most dedicated would resort to.

In short, we have new instruments today. That those instruments produce their sounds by means of reproducing pre-recorded sounds does not make them any less instruments than instruments that can produce only a limited number of notes.

Legal decisions based on what the law is not — the “permission culture” and copyright overclaiming

One thing law students don’t get at all is the ways lawyers negotiate a world in which legal decisions are based on what the law is not.

Mike Masnick over at techdirt, , writing about the “Permission Culture” (that is, the culture that insists that sampling and quoting should only be done with permission), puts his finger directly on one of the biggest problems — the fear of even frivolous lawsuits, even by big publishing concerns, prevents writers, musicians, and artists from quoting, sampling, and appropriating parts of copyrighted works they don’t need permission to take:

The unfortunate reality these days is that publishers won’t touch such quotes without permission being granted. It’s almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don’t want the liability of a lawsuit. I’ve had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it’s just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use… but his publisher wouldn’t touch it.

I would suggest too that one reason publishers won’t publish books without permission for the use of quotations is that they perceive it to be in their interests not to do so. That way, other publishers will ask and pay for permission to use quotations from their own books. That is why, I am convinced, the music industry never has seriously challenged lower court decisions requiring permission (and, presumably, payment) for the use of any recorded sample — the practice makes each company’s record vault’s sources of income.

The problem, of course is exacerbated considerably because the wealth and of the corporate conglomerates that own so much of our intellectual property. Who is going to fight Disney, even if he’s right? Another problem is the widespread ignorance in the media about copyright. As Richard Posner has written, the fear of litigating against rich copyright holders who place a premium on their fear of losing something of value leads to behavior based on law that isn’t at all what the law is supposed to be:

Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

The Case of the Twittering Witness

From Law.com: “Miami-Dade Circuit Judge Scott Silverman declared a mistrial in a civil fraud case Wednesday after being informed a witness on the stand in his courtroom had engaged in text-messaging while the judge spoke with attorneys during a sidebar conference.” Techdirt is right in suggesting that the intersection of the “new media” with our old institutions is going to raise more and more problems like this one:

It seems as though very few people have really thought through the implications of the many channels of communication that every individual now has with them, and how that changes common assumptions about how people can and will communicate, even in “constrained” areas. 

I confess: I’m complicit in a corrupt and dishonest system.

I’m sometimes asked why the law can’t speak clearly to the average person.  I wish I had a good answer.  I’m not without answers; they’re simply not very satisfying.  My first answer is that the question why law can’t speak more clearly is like asking why pigs can’t fly.  They don’t, and it doesn’t.  I’ve given up trying to figure out why.  I’m primarily concerned these days with trying to figure out how to teach people who will practice law how they can begin to understand legal language.  I know that task itself — achieving a glimmer of understanding of legal language — takes a monumental amount of work even when attempted by incredibly well educated and bright people.

My second answer is that making oneself understood is incredibly difficult for anyone.  The President of the United States, the Governor of Alaska, and many other very powerful and accomplished people seem incapable of the art.  Why would you expect some low level lawyer at a federal agency to be clear if these people can’t be?

In the end, though, I sometimes throw up my hands in utter frustration, realizing I myself remain befuddled or, even worse, that they system is intended to be as confusing as possible.  I’ve “known” since law school (25 years ago) the purpose of the patent system is to encourage the disclosure of ideas by inventors to increase the inventiveness of others.  We offer an inventor exclusive rights to profit from his invention in exchange for his disclosure of the invention because doing so will at least allow other inventors to learn the patented knowledge and build upon it.

Now Techdirt makes clear that I’m an idiot: “Defenders of the patent system quite frequently point out that one of the main benefits (some claim the only benefit) of the patent system is ‘disclosure.’ That is, because the patent system requires you to disclose your patent, the patent system is quite helpful in spreading ideas. This is a myth that’s easily debunked on a few points.”  First, you’ll bother applying for a patent for your invention only if you know the invention will be figured out anyway.  Otherwise, why bother?  Second, since the penalties for knowingly infringing a patent are so much worse than accidentally infringing, companies actually discourage their employees from examining patents.  The companies are better off if there’s no proof they actually knew about any patents they infringe.  Finally, “Slashdot points us to a Microsoft employee admitting that looking at patents is a total waste because they never actually disclose anything useful:

When using existing libraries, services, tools, and methods from outside Microsoft, we must be respectful of licenses, copyrights, and patents. Generally, you want to carefully research licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section — the only section that counts — was indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended when it comes to patents.