"The 'Blurred Lines' verdict is a victory for an outmoded law, but also an outmoded way of thinking about music."
Anil Dash on Prince's Purple Rain, 30 years' old this week:
Prince simply made use of one of the most potent and consistent techniques of his career: careful appropriation of popular trends in pop music, filtered through his unique sound.
And here's a video from the August 3, 1983 concert in which Prince introduced both the song, and his group, The Revolution, for the first time.
Years ago when I was teaching copyright and fair use, a student volunteered that he'd spent his college summers working in a bakery. According to this student, on random occasions men in suits (appearing like Men in Black) would show up, show their credentials as representatives of Disney, and inspect the bakery's cases to ensure there were no birthday cakes bearing unauthorized images of Disney characters.
Disney, in short, has long been notorious for its zeal in protecting its copyrighted properties, zeal so great it largely seemed to disregard any notions of fair use. (It could not, of course, ignore the right to fair use entirely.)
So Andrew Leonard's article, "How Disney learned to stop worrying and love copyright infringement" brings wonderful news. According to Leonard:
Disney’s expertise in nurturing, co-opting and, most of all, not cracking down on the many ways fans have embraced “Frozen” online is a template for how to thrive in a digital, copy-promiscuous, consumer-empowered environment. Disney, long one of the fiercest and most powerful defenders of strict intellectual property control, has learned how to let copyright go.
I've long thought the publishing, recording, and moving picture industries need to reform their heavy handed "Copying is Stealing" approach to the digital age. It doesn't work, and everyone knows it, so the self-righteous moralizing undercuts the legitimate interests they have in limiting genuine, creation-killing piracy. Disney's embrace of the Frozen's fan culture seems, finally, to be a move in the direction that ought to have been taken back in the late 1990s. Here's hoping it's the start of a sea change.
What were you thinking when you sued the Google LIbrary Project, Authors? Long live the Author Alliance!
I never really understood the Authors' Guild opposition to the Google LIbrary Project, as I've often written about. (I've included below a post I wrote on August 7, 2008 in Ruling Imagination's earlier incarnation to give some of my reasoning). I am thus thrilled that "the Author Alliance, has been launched by leading copyright expert Pam Samuelson to represent the authors who like fair use, users' rights, and who reject censorship and surveillance."
What are you thinking, Herb Mitgang? (originally posted on 8/7/2008)
The knee-jerk reaction some writers and other artists have to any unauthorized use of their copyrighted works often baffles me. Artists often react viscerally to any unauthorized use of their creations even when doing so fails to serve, as far as I can tell, any legitimate personal interest they might have. It's as if they simply think: it's my property, and no one can touch it unless I tell them they can!
The Association of American University Presses provides a useful summary of the Google Book Search Program:
Many university and scholarly presses have participated enthusiastically in the Publisher program, which allows their print publications to be indexed and displayed to an appropriate extent through Google's beta online index of print materials while protecting their own, their authors' and third parties' rights. The Library program has proven controversial, as Google plans to scan, digitize, and copy not only public domain works from world-class research libraries, but also the in-copyright collections of at least some of those libraries. The libraries are the Bodleian at Oxford University, Harvard University Library, the University of Michigan Library, the New York Public Library, and Stanford University Library.
It is important to understand that Google is not merely copying the libraries' collections in order to make them available electronically to the world. Instead, Google Book Search allows its users to search the entire database of what Google has thus far scanned. For works by authors who have granted Google permission, a user of the Book Search can scan read the entire text. But for those who have not expressly provided that permission, a search through Book Search will turn up only books containing the searched terms along with snippets of approximately 3 lines around the searched terms.
In short, Google Book Search is a boon to researchers, allowing them to locate books relevant to their research in libraries they could not possibly ever have visited. They then can obtain the books, either through inter-library loans or through online purchases. Without Google Book Search, in other words, myriads of profoundly useful books scattered around the world would remain utterly invisible to the vast majority of people with interest in them.
Which brings me to Herbert Mitgang. Mitgang is one of the named plaintis in the Authors Guild lawsuit seeking to shut down the Google Library Project. Mitgang was born in 1920, and since the 1950s he has been a prolic writer in numerous genres, from journalism to ction to biography. Among his books are three on Abraham Lincoln.
Mitgang, however, is hardly a household name. His books on Lincoln are still in print, but, despite my acquaintaince with several amateur Lincoln-obsessed readers, none of them have read any of Mitgang's Lincoln books. Mitgang is 87 years old. It seems quite likely therefore that, within a decade or so, the only feasible way Lincoln researchers will be able to obtain his books will be from the collections being scanned by the Google Library project.
In short, I cannot begin to imagine why Mitgang wants to shut down the Google Library Project. Without it, his books will likely fade into oblivion. On the other hand, if the Google Library Project is a success, there is every possibility that future Lincoln researchers might come across and use Mitgang's Lincoln books. I wish I could get in a room and ask him: Why are you doing this? Do you really want your life's work to disappear entirely from the sight of future researchers?
My sister, a lifelong writer, for years bristled at my views of copyright. She's come around. The fact that the entire corpus of one genre she's worked in for decades, the retelling of folk tales for children, is available online has, she's realized, made her more visible, more attractive to publishers, students, and producers of other media. Exposure is, it seems, the lifeblood of an artist; putting one's work behind a fence, on the other hand, will only make it invisible.
I wonder what Herb Mitgang thinks of that?
This fascinating article by Uri Sarid addresses the recent decision by the United States Court of Appeals for the Federal Circuit in Oracle America, Inc. v. Google Inc. on the copyrightability of APIs--as Uris describes them, the "interface[s], or specification[s], for how a software application should be used by another program. So APIs, in essence, just specify what levers and switches a software system presents to the outside world accessing that system, what inputs to give it and what outputs it will return."
Sarid first acknowledges the fear he and others have legitimately feared about the decision's extension of copyright protection to APIs and the reasons for believing such protection is not appropriate:
APIs are quite utilitarian, like an ATM machine’s operation: slide your card here, punch your code there, select from a menu, and expect cash in return. How could that be copyrighted? This surely isn’t what the copyright law was intended to protect: it’s not a creative work of art, it’s not an author expressing ideas in a personal and distinctive style, nor a programmer choosing to write code this way vs that way.
But "[t]he appellate court’s decision . . . determined that, indeed, the author of an API is entitled to copyright protection. They can sue others for copying their API and using the copy unfairly (I’ll come back to this), they can license their API and charge for that use, they can use it as a competitive barrier, and so on. In essence, the court of appeals ruled that how you’re supposed to operate a computer system, not just the way the computer system was written, is itself a proprietary asset."
Most importantly, however, Sarid recognizes that the mere fact something is entitled to copyright protection does not mean no one else can use it without permission (or even without credit), and the non-creative aspects of API creation is a significant reason that much of the appropriation of others' APIs will turn out to be legitimate, non-infringing fair use:
First, the entire ruling by the appeals court is about copyrightability, not about whether anyone can freely use that copyrighted work — that aspect is called “fair use,” and fair use in this case is still wide open. And while the appeals court chastised the lower court for mixing those up, we might not care so much: whether the API is not copyrightable, or whether it is copyrightable but anyone can use it, the outcome seems pretty much the same freedom we’re striving for.
Sarid's nuanced interpretation of the decision also points up something else I have strong feelings about: the capacity of courts to deal with sophisticated technical disputes. The appellate court in Sarid's eyes quite plainly understood and wrote about APIs in a technically sound manner:
I actually sat down to read the ruling, in detail, all 69 pages of it. It is remarkably readable, insightful, and germane. Granted, it’s all about language-level (Java) APIs rather than web APIs, but all the right pieces are there. The judges discuss with great care the separation of interface from implementation; the essence of an interface as a whole, vs. its being a collection of short command names, parameter names, and value types which themselves are not copyrightable; its form (which they ruled copyrightable) vs its function (which is not). A major point is that the author of an API has many choices about how to express their interface’s functionality, so when the author expresses it in a particular way, he or she is making a creative choice which then grants copyright protection.
This is what courts and lawyers do: learn about and communicate to the wider public all the ins and outs of all the mysterious ways people lead their lives and deal with one another. Courts decide construction disputes, medical disputes, and ballistics disputes every day. It's a lawyer's job to understand what his or her client does and communicate that--and what matters to the client--to courts and others. If the lawyer does it well the courts will do their job well.
Addendum: For another, partly contrary view, see Jonathan Band's article, The Federal Circuit's Poorly Reasoned Decision in Oracle v. Google. I think it very likely Sarid agrees with Band's hope that on remand from the Federal Court's decision the lower court finds that Google's uses of Oracle's APIs consituted non-infringing fair use:
One possible light at the end of the tunnel is that on remand, the lower court could rule that the copying of program elements necessary for interoperability is a fair use as a matter of law. After all, the Ninth Circuit in Sega held that “where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.” Such a ruling would restore the legal certainty that [the decision in Oracle v. Google] has upended.
On March 26 2014 the Copyright Society of the USA’s New York Chapter presented a luncheon panel – If I Ran The Zoo: Probing The Contours Of “The Next Great Copyright Act” – at the Princeton Club in NYC. A year ago Copyright Registar Maria Pallante delivered the Manges Lecture at Columbia University in which she called upon Congress to enact a program of comprehensive copyright reform. Since then hearings have been held by Senate Judiciary, and the USPTO, to explore the issues involved . The CSUSA convened this panel of experts, and asked them what they would do if they “ran the zoo”, in the hopes of discovering where there might be points of consensus, and intractable strife, and, perhaps, space for deeper exploration. Speakers were Allan Adler: Gen. Counsel & VP, Government Affairs, Assoc. of American Publishers; Victor Perlman: Gen. Counsel, American Society of Media Photographers; Michael Weinberg: VP, Public Knowledge. Moderator: Robert Kasunic: Assoc. Register of Copyrights, Dir. of Registration Policy & Practice.
Like Maria Popova, I am "the combinatorial nature of creativity is something think about a great deal," so I am grateful for her pointing to this letter from Mark Twain to Helen Keller in response to charges of plagiarism that had been made against her:
Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that ‘plagiarism’ farce! As if there was much of anything in any human utterance, oral or written, except plagiarism! The kernel, the soul — let us go further and say the substance, the bulk, the actual and valuable material of all human utterances — is plagiarism. For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, and which is revealed in characteristics of phrasing. When a great orator makes a great speech you are listening to ten centuries and ten thousand men — but we call it his speech, and really some exceedingly small portion of it is his. But not enough to signify. It is merely a Waterloo. It is Wellington’s battle, in some degree, and we call it his; but there are others that contributed. It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a telephone or any other important thing — and the last man gets the credit and we forget the others. He added his little mite — that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that.
For this weekend's musical interlude, we'll go crude without sacrificing significance. From the Disruptive Competition Project came the announcement that yesterday
[W]as twenty years [since] the Supreme Court issued its landmark decision in Campbell v. Acuff-Rose, its most recent consideration of fair use. The Court made clear, in a unanimous opinion, that a commercial parody was fair use under Section 107 of the U.S. Copyright Act. A lower court had held that the rap act 2 Live Crew’s “Pretty Woman,” a lewd skewering of Roy Orbison’s saccharine love ballad “Oh, Pretty Woman,” was presumptively unfair because it was a commercial parody. When the group and frontman Luther Campbell appealed, the Supreme Court reversed, holding that the “more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” (Some interesting C-SPAN coverage of the case before the Court’s decision, hinting at class overtones of the dispute is available here.)
It should be remembered too (as I pointed out yesterday) that to limit the implications of Campbell to commercial parodies of other works--that is to appropriating works that only appropriate to comment or criticize the works they appropriate--is too narrow a reading of the Court's 1994 decision and of the ways art is always appropriating the meaningful elements of its culture (including its works of art) to create new meanings entirely divorced from the component elements. But this discussion is for another day. This weekend is to revisit the heights of misogyny the pop charts chan reach:
Peter Friedman is a lawyer, artist representative, speaker & writer who's written for years on the impact of law on creative endeavors and law itself as a creative endeavor. From 2008-2012, he wrote Ruling Imagination: Law & Creativity, selections of which are republished here and the entire archive of which is available from the Internet Archive's Wayback Machine here and in pdf format here. In addition, he has written about copyright and fair use at What is Fair Use?