COPYRIGHT AND DISRUPTIVE TECHNOLOGIES: THE RADIO-MUSIC WAR

Picture1I had the pleasure of speaking last night at a program co-sponsored by the George Washington University Law School and the D.C. Chapter of the Copyright Society of the U.S. My topic was “Copyright and Disruptive Technologies: The Radio-Music War,” and the slides can be found here.

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THE INTERNET OF THE 1920s

Radio480pxI had the pleasure of speaking with Meridee Duddleston of WRTI-FM, Philadelphia, about the impact of radio on the music industry in the first half of the 20th Century.  You can hear the interview here.

COPYRIGHT THEORY IN ACTION

08DYLANjp-articleInlineA congressional committee report on the epochal Copyright Act of 1909 contained the Yoda-like pronouncement that “not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.” It was an inelegant expression of the basic theory of copyright, that giving authors exclusive use of their writings for some limited time, with all the financial benefits that may entail, will redound to the benefit of us all by spurring creativity. It is a matter of lively dispute whether the “limited time” now granted under U.S. copyright law, specifically the Sony Bono Copyright Term Extension Act of 1998—the life of the author plus 70 years—goes far beyond what is necessary or desirable to achieving this end.  In dissenting from the 2003 Supreme Court ruling which upheld the Bono act, Justice Stephen Breyer wrote:

“No potential author can reasonably believe that he has more than a tiny chance of writing a classic that will survive commercially long enough for the copyright extension to matter. . . . . . A 1% likelihood of earning $100 annually for 20 years, starting 75 years in the future, is worth less than seven cents today.  What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?”

Just last year, the Supreme Court upheld an act of Congress that restored copyright protection to certain old foreign works that, for one reason or another, had previously fallen into the public domain in the United States.  Justice Breyer again dissented, questioning whether Congress had the authority to extend copyright protections “without providing any additional incentive for the production of new material?”  Although the majority agreed that this particular law could not incentivize the creation of anything new, it could be justified by the prospect that it might lead to the dissemination of existing material that would otherwise be ignored.

Though I sympathize generally with Justice Breyer’s view of these matters, there are those exceptional cases that support the other side.  Today the New York Times reports that in Europe an impending change in law will, effective 2014, extend copyright protection on sound recordings from 50 years to 70 years from creation.  The catch is that to be eligible, the recording must be published within the original 50 year term.  To take advantage of the extension, Sony has released a very limited edition, quasi-bootleg recording of some of Bob Dylan’s earliest studio outtakes and live performances from 1962-63 (puckishly titled “The Copyright Extension Collection, Volume I”), and Motown has released from its vaults some rare recordings of the same vintage, just ahead of the expiration of the their original 50 year copyright term.  No one could seriously argue that the prospect of this 20 year extension could have spurred the creation of any of these recordings, yet now, as a result of the extension, they can be heard for the first time.

PAUL RYAN’S TWISTED SISTER

At a campaign rally in Pennsylvania yesterday, Representative Paul Ryan used Twisted Sister’s 1984 anthem “We’re Not Gonna Take It” as his walk-on (or perhaps walk-off) music. For those who don’t know or remember it, the song is a timeless expression of core Republican values (e.g., “your life is trite and jaded/boring and confiscated/if that’s your best, your best won’t do”). The song’s composer, Twisted Sister frontman, host of radio’s “House of Hair,” and genuine music business nice guy and wit, Daniel “Dee” Snider, objected: “I emphatically denounce Paul Ryan’s use of my band Twisted Sister’s song, ‘We’re Not Gonna Take It,’ in any capacity. There is almost nothing he stands for that I agree with except the use of the P90X.”

The story initially caught my attention because I recently represented Snider’s interests in a copyright infringement case involving “We’re Not Gonna Take It” (along with “I Wanna Rock” and “Burn in Hell”).  More generally, though, stories like this have become increasingly commonplace as, mostly Republican, candidates have taken to appropriating music from the other side of the culture wars, perhaps as a means of deflecting attention from the revanchist social policies they actually espouse.  Do Snider and other victims of this form of cognitive dissonance have any claim under copyright law?

 

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‘TIS A GLORIOUS THING, TO BE A PIRATE KING

A provocatively titled op-ed recently published by the New York Times, “Internet Pirates Will Always Win,” urges content providers to give up the legal fight against online copyright infringement as an exercise in futility, as new technologies make illegal downloading and streaming ever “harder to trace and to stop.”   The piece has prompted predictable responses from representatives of copyright industries, with arguments moral and economic.  May I add a little history, drawn from my book, Unfair to Genius, to the mix? (more…)

SWITCHED-ON SEARCH

I should, and will, be posting on Google’s mounting antitrust problems and on the status of its attempt to corner the book search market, but today I am utterly transfixed by the functional Moog Synthesizer that Google has placed on its home page, in honor of what would have been Robert Moog’s 78th birthday.  (What’s so special about round numbers anyway?)

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Y-M-C-A: VILLAGE PEOPLE FRONT MAN SCORES EARLY VICTORY IN COPYRIGHT TRANSFER TERMINATION WARS

January 1, 2013 is a date that has long been circled on music industry calendars.  It will mark the 35th anniversary of the 1978 effective date of the Copyright Act of 1976, and is the day authors and artists can be begin to take advantage of the Act’s liberalized copyright transfer termination provisions.  (Paul Goldstein’s legal thriller, Havana Requiem, recently reviewed here, is centered around a separate provision for terminating transfers that took place before 1978.)  The termination provision—intended to “safeguard[ ] authors against unremunerative transfers” and address “the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited”—allows authors to “clawback” copyrights they may have improvidently assigned to publishers or recording companies after 35 years, upon giving of two years’ written notice.  The biggest battle that lies just ahead will be over the attempts of recording artists such as Billy Joel and Bruce Springsteen to regain control of copyrights in classic 1978 sound recordings like “52nd Street” and “Darkness of the Edge of Town.”  In the meantime, Victor Willis, the bare-chested lead singer of the 1970s camp act the Village People, and the lyricist for “YMCA,” “In the Navy,” and many of the group’s  other songs, is out front with his attempt to regain his copyrights in the compositions, and he has won an early victory that may have ominous implications for the recording industry.

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ABOUT THOSE 12 LPs FOR A DOLLAR: RECORDING LEGENDS SUE OVER RECORD CLUB ROYALTIES

One of the guilty pleasures of vinyl record collecting in the 60s and 70s was taking advantage of Columbia House Record Club’s introductory teaser offers, usually 12 records for a dollar, to  purchase in bulk. (Did I hear you say that there must be a catch? Of course, but I’d love to know what percentage of takers fulfilled the reciprocal obligation to buy 12 more at list price.) I am sure we gave no more thought to how the  artists were making out on the deal than do today’s file-sharers.  Now representatives of some of the leading recording artists of the 1930s-50s have filed a lawsuit that will require all of us former Columbia House abusers to do a little soul-searching.

 

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BOOK REPORT: “HAVANA REQUIEM”

THIS POST CONTAINS NO SPOILERS!                                                                                                                                      

A flawed, fallen hero seeking redemption, a sultry Cuban femme fatale, a corrupt cop, alternately suave and brutish, a mysterious disappearance, double-crosses, diplomatic intrigue, and the ultimate vindication of authors’ termination rights under Section 304(c)(4) of the Copyright Act—these are the things from which copyright lawyers’ dreams, and Paul Goldstein’s “legal thriller” Havana Requiem (Farrar, Straus and Giroux) , are made.

 

 

 

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