May 20, 2013
The Internet Moves Faster Than Congress Can; But Can Congress Catch Up?

This is a continuation of posts on how to avoid liability while posting content on the internet. To be notified of future posts, ‘like’ us on facebook here.

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I’ve recently posted a few pieces regarding the use of copyright-protected material online, and how to do so in such a way that decreases your risk of liability. I’ve written about such a topic primarily as it applies to users of social media, those who run podcasts, and for everyone: how and when to obtain permission.

The feedback has been positive. So I continue. This post regards the trouble of policing copyright infringement in a digital world, and what Congress has done to try to keep up.

A reporter recently asked me the following questions. My answers follow.

There have been several court cases involving video or music sharing sites.  Is a body of law emerging that will set a precedent for the legalities of sharing this material?  If so, what are the trends?

The law is always changing, and I can’t think of an industry that changes as fast as the music industry has been changing—with legislation that has trouble keeping up. But there have been attempts. In 1998, The Digital Millennium Copyright Act (DMCA) was unanimously passed and then signed into law by Clinton. Among other things, the DMCA makes it easier for copyright holders to police the use of their works on the internet. When they find an infringement, they can issue a takedown notice to the site (a relatively quick and easy procedure), which then must take the offending content down, after giving the other side a chance to respond. However, the (law-breaking) uploader can merely upload the content again. This has resulted in a terribly endless game of wac-a-mole for many copyright holders, some hiring a team of people merely to issue takedown notices day after day. The DMCA also allows one to make ephemeral copies of a work for archival purposes, and sets new lines as to what is infringement and what is not so as to accommodate the new digital age. Laws have been established that favor copyright owners, and others have been established that favor sharing and the public domain.

But what is the legislative trend? At the beginning, we had the Misappropriation Rhetoric that protected the rights of the copyright holders, but after our culture became richer and expression became a value, we switched over to the Public Domain Rhetoric (valuing that which can be shared). But now things have evened out, and new ways of tracking the performance of works have been created. So now we have been coming into the New Economic Rhetoric (which I’ll call the ‘Click-for-a-Penny’ Rhetoric) that advocates the convenient use of another’s work for a small sum, while allowing free sharing of works that the author no longer cares to profit from. Swiping your credit card on an airplane to watch a movie or to stream on Hulu, or accepting a Creative Commons license to repost a blog, are all examples of this. Where will we go from here? One can only wait and see.

How is it possible to police the vast world of the internet for copyright infringement?  Can it ever be brought under control?

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Just as Performing Rights Organzations like ASCAP,  SESAC, and SoundExchange (for artists) use emerging technologies to track the performance of songs on the radio, similar technologies are emerging for doing so on the internet. Many technologies embed each song with a digital fingerprint that a computer can detect every time the song is played. The question is how quickly the laws can keep up with emerging technologies and uses of those technologies.

Given that the internet is a relatively recent development, what future direction do you think the law will take regarding its use?  Are greater restrictions likely to come into play?

This is largely political. There are people on the Copyleft, fighting for a larger and more accessible public domain. Then of course there are the policers, fighting for more profit and more control.

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The cycle is that as new technologies emerge, many pioneers push the boundaries of copyright law, naturally upsetting the others, who sue. Then, one by one, judges draw the lines, which are then again blurred by new emerging technologies, and the whole process starts again.

The question is not whether greater restrictions are likely to come into play, but whether smarter ones are. No one can know what will happen, but I certainly hope the law understands that one cannot contain the internet — a completely new type of animal — in the old type of cage originally meant for phonorecords.

One analogy I favor, used by Lawrence Lessig: Before the airplane was invented, the law gave a property owner ownership over his land, the soil below, and the sky above. But airplanes came along, scaring many farmers’ chickens who ran into the barn wall to their death. Farmers sued for trespass, and the Court acknowledged that “it is ancient doctrine that common law ownership of the land extended to the periphery of the universe.” If this was the internet today, the courts would set up a licensing system such that the airlines would pay a monthly fee (according to the amount of properties they’d be crossing) which would go to the landowners. (This would conform to our ‘Click-for-a-Penny’ Rhetoric). But then, Judge Douglas saw that with new technology, the law would have to change. Now we (obviously) do not require an airplane owner to “ask permission” before flying over another’s property. I hope that in the same way common sense will prevail as we try to legislate around this new toy we call the internet.

What do you think have been the most significant cases regarding copyright on the internet thus far?

Well, A&M Records, Inc. v. Napster was the first big case directly dealing with peer-to-peer file sharing, which it ruled, was a big no-no. This dramatically slowed down the market for such sharing, arguably affecting the industry more than any other case in years, or even since the Sony case that wrestled with the invention of the VCR. Now many cases making the press regard the use of one’s social media statuses or tweets against in court, often for extreme criminal charges. U.S. v. Meregildon, — F.Supp.2d —, 2012 WL 3264501 (S.D.N.Y. August 10, 2012). Youtube is often in litigation (recently with Viacom and other parties) about how responsible it is for the content uploaded on its sites. Just a few days ago, the majors were granted a permanent injunction against Grooveshark that will significantly limit Grooveshark’s ability to stream music. All of these cases will shed light on how our laws are applied, at least until new technologies emerge, blurring those lines once again.

January 13, 2013
From Jew’s Ear Juice to Gorilla Snot: The World’s Wackiest Trademarks.

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Any business owner should be lucky enough (and smart enough) to see a trademark attorney before investing in any brand name, company name, or trademark (and certainly before having their graphic artist, social media expert, and branding specialist start to develop it)— or hopefully, before even choosing one. This is so they can choose a name that (a) has not been taken before; and (b) will be suitable for trademark protection. There’s nothing worse than investing thousands in a brand name, only to find out that it’s already been taken.

Okay, maybe there is something worse.

But still. This planning is essential. I especially enjoy the process of brainstorming with my clients for the most creatively suggestive marks. Some end up having wonderful double-meanings (like these), while others are more typical of the industry they’re in. 

But we all know of some trademarks, well, far from the border of typical. These brand names leave us shocked, disgusted, or laughing until our sides hurt. Regardless, they accomplish their goal of being, well, unforgettable. I’ll share a few of my favorites, if you can share a few of yours in the comments.

1) JEW’S EAR JUICE. (Canned beverage).

In China, Jew’s Ear Juice, is quite a popular drink. And it is precisely just that: juice from a Jew’s Ear. Well, not the type of ear you’re thinking of, but rather from a type of mushroom often likened to an ear, due to its ear-like shape, and brown, wrinkled, texture.

So why the Jew? Nu?

Despite what it may seem, this (originally) did not come about from antisemitism, but rather from the belief that one of the 12 disciples of Jesus, Judas Iscariot, hung himself from an elder tree, such as the trees that these mushrooms grow on. See, the mushroom was originally called “Judas’ Ear”, until that eventually turned into “Jew’s Ear”, as everything apparently does, right?

Sounds reasonable? Perhaps in some form of Chinglish.

Unfortunately, the stuff doesn’t seem to taste too good. Perhaps someone thought that linking it to a Jew’s Ear was all that was needed to reap profits. Ah, the power of a trademark!

2) POLYGAMY PORTER. (Beer).

As of this writing, POLYGAMY PORTER is a registered trademark of the Utah Brewers Cooperative, L.C., both for the sale of “Beer, ale, lager, stout and porter” (Reg #4253333) and “Sweatshirts; T-shirts” (Reg #4245494). So, really, they have POLYGAMY PORTER registered twice.

Why have just one?

This dark beer is one I’ve tried after a day riding the mountains - and I was not disappointed. But after the company wished to advise the public to “take some home for the wives” and to warn them that “when enjoying our flavorful beverages please procreate responsibly,” not everyone agreed with my assessment (though sales shot through the roof). But that is always the risk you take with a trademark such as this. (Well, along with the risk of a Lanham Act Section 2(a) bar to registration, finding that the mark is “scandalous” or “disparaging”, as many thought the Washington REDSKINS mark was, among countless others).

3) GORILLA SNOT (Hair Gel).

Nothin’ like ole’ gorilla snot to hold your hair together. And with that logo, you won’t want to wait before pouring a load of this stuff onto your head.

Charming, ain’t it?

As a musician myself, I’m also familiar with the Gorilla Snot sold and used as a gripping aid by guitarists and drummers; just rub some on your drumstick or guitar pic, and it will never slip from your hands!

4) BOURDREAUX’S BUTT PASTE (Well, butt paste).

This is a registered trademark by Boureaux’s Family Pharmacy, for the sale of, well, butt paste, essentially, or rash creme for use on babies. Their real accomplishment, however, is the ownership of the domain name of their home page.

5) BONE SUCKIN’ SAUCE (Marinade)

Another one of my favorites (with another kudos on the domain name) this sauce is one of my favorites. It literally makes you fight over every last drop so much, I’m surprised the trademark wasn’t rejected on the basis of describing exactly what it does. A registered trademark of Ford’s Foods, Inc. (Reg #3242035).

Those are a few of my most memorable trademarks. Can you share a few of yours?

Joseph Becker is a NYC-based attorney specializing in trademarks, copyrights, entertainment, and ‘all that jazz’. He can be reached at josephrbecker@gmail.com or at his website, www.jrbeckerlaw.com.

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September 6, 2012
4 Ways to Use Social Media Without Infringing Copyrights.

 

I was recently asked in a press interview the following questions. Social media is all about sharing content.  How is this permitted without infringing copyright?  Should users beware of how they use social media from a legal perspective?  What measures can they take to ensure that they stay on the right side of the law?

With sites like Facebook, Twitter, Tumblr, and YouTube, countless pictures, video clips, and literary works, and parts thereof are shared instantly. On YouTube, millions of people across the world feel compelled to share a sneezing panda, Charlie biting his brother’s finger, or a ten hour video of a guy in an impossibly white vest playing a five second sax riff over and over again. Parodies, mashups, remixes, and memes fill our digital waves with adaptations and reproductions of works that are protected by copyright. Further, as copyright protects more and more works for longer periods than ever before, one wonders how we can share more and more without butting up against these laws.

Let’s begin with YouTube. When one uploads a video to Youtube, one is promising that they are not infringing anyone’s copyright. Further, they grant both YouTube and any user of YouTube (which essentially means anybody) a worldwide license to use, reproduce, or adapt that user’s submission in any media format and through any media channels. If, in fact, the video infringes anyone’s copyright, that copyright owner can simply send a takedown notice to YouTube, who will take the video down (almost) immediately. Besides legislating such takedown notices, the DMCA (or Digital Millennium Copyright Act) helps protect sites such as YouTube from liability. Nevertheless, YouTube is often at the center of multimillion dollar lawsuits, public scrutiny, and heated online debate as both the public, the courts, and Congress wrestle through the policies of the law.

While it is only the owner of a copyright-protected work that may reproduce, adapt, publish, or display the work, his rights are limited. While thinking about social media, the primary limit that comes to mind is called Fair Use (which the Supreme Court has pointed out, is rooted in the First Amendment’s freedom of speech). Section 107 of the Copyright Act states that one may use another’s work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” In this case, no permission is needed! To determine whether a certain use constitutes “fair use,” a court considers the nature of the original work, how it was used, how much of it was used, and whether such use will hurt the market of the original work (by essentially giving it away for free).

 

There are various ways a social media user should protect themselves from copyright infringement liability and make sure that what you share on social media is within the Fair Use doctrine.

1) If you do not own the copyright over the work that you are sharing, then make sure to link back directly to the one who does, simply, supply the link to the original source which (hopefully) did have the right to publish it.

2) Give credit to the copyright owner.

3) Your use will fall much closer to fair use if you are actually reposting the original work for a purpose, such as for archival purposes, to spurn discussion and comments, to criticize or comment upon it, or to create a parody, mashup, or some other work that required some creativity on your part.

4) Use only as much of the original work as you need to in order to accomplish such purpose.

But when all is said and done, one can never know for certain if their use is “fair,” and even if it is, if they’ll have to pay for a lawsuit for a judge to tell them it is “fair.” Sometimes, it costs as much to be right as it does to be wrong. So it is almost always better to ask permission! You might be surprised. But if the owner demands a fee you just cannot afford, then you have to decide if the risk is worth taking, and whether the severity and probability of liability outweighs the benefit of the use.


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August 29, 2012
Using Material On The Internet: The Search for Permission.

This is the first of a series of posts about using the material of others on the internet, through social media, and other digital means. To be notified of future posts, ‘like’ us on facebook here.

A reporter recently asked me the following question.

Technically, permission needs to be given in order to use content already on the internet.  Is this really practical, given the vast scale of the internet?

Once one determines that they wish to use a (i) copyrightable work (ii) whose copyright is not yet expired (iii) in such a way that they need permission, then this question is always an obstacle. Finding the copyright owner can send many on a wild-goose chase, let alone understanding just how to approach the owner once they are found. However, the resources are there for those who know how to use them. My first stop is often the US Copyright Office’s website, www.copyright.gov, where one can do a basic search and usually find the copyright owner’s contact information. Likewise, one can search the US Trademark Office’s website, www.uspto.gov for the owner of a trademark.

The method of one’s search also depends on the type of content they wish to use. If one wishes to use another’s songs, they should contact a PRO (performing rights organization) such as ASCAP or BMI, since PROs each have the ability to offer licenses to perform the songs of hundreds of thousands of songwriters. If the PRO you contact (say, BMI) does not carry the songwriter whose music you wish to use (say, Bob Dylan), then they will point you to the correct contact who does (say, SESAC). If you wish to use another’s sound recording, you may want to contact the record label who represents the artist’s recordings. If one wishes to use another’s video, they must get permission from the film production company, whether Columbia, Fox, Dreamworks, or otherwise. If one wishes to use another’s television clip, they should find the correct production company. If one wishes to display pages of a book, they must get permission from the publishing company, usually found on the first few pages of the book itself. If you’d like to quote or use material from another’s blog post, you may want to search the blog page for some sort of license (such as that from Creative Commons or the like). Whatever your route, be polite, clear as to exactly what your intentions are, and be open to negotiation. And of course, we wish you the best of luck.

August 23, 2012
Can Someone Register A Trademark On a Letter?

                                                                                            

(Note: Soundspeak usually sticks quite close to copyright and music in the digital age, rarely straying into the tangled world of trademarks. But trademarks are something artists should understand, for reasons I’ve explained in Blooper #4 in this post, so we at Soundspeak discuss them occasionally. Besides, they’re just too much fun.  So here we go.)

When E.piphany moved to professionalize their logo, an ‘E’ with an arch on top, Microsoft did not hesitate to send them a threatening letter, crying ‘trademark infringement’ with their famous Internet Explorer logo (also an ‘e’ with an arch over it). E.piphany responded to Bill Gates directly, showing shocked surprise, since “given the name of your company, claiming the letter “e” is an unusual place to start. I can understand Microsoft wanting exclusive rights to the letter “M” or “W”, but “e”?”

The response moves on to chide Microsoft for thinking it could enforce a trademark on “one of the 26 letters of the English language.” Really. To me 26 is quite a large a number, at least larger than the amount of (primary) colors available, many of which are registered as trademarks (such as UPS’s brown, Pepto-Bismol’s pink, or Windex’s blue). Granted, the US Supreme Court did wrestle with the fact that allowing this may be “unworkable in light of the limited supply of colors that will soon be depleted by competitors.” But in the end, this did not stop the ruling that colors can be protected under trademark law.

Many simply seem to forget that there are thousands of goods and services a merchant can offer, and a similarity of goods or services offered between two trademark users is essential to a finding of trademark infringement. So when E.piphany uses the exact same one of the 26 letters of the alphabet as Microsoft, in an extremely similar format (alone, with an arch over it), to offer practically identical services as Microsoft (out of almost infinite types of goods or services), I don’t think that Microsoft’s letter was so out-of-hand.

When E.piphany acts “shocked” by claiming to Bill Gates that “I did not
realize (until the receipt of your ominous legal missive) that one of the 26 letters in the English language was now the trademarked property of Microsoft” I think they should have thought a little harder. I’m certainly not surprised.

Are you?

August 16, 2012
Can I Use TV Clips or Corporate Logos in My Podcast?

                            

Many podcast producers wish to know just what exactly they can use in their podcast, as they wish to comment on (and thus show their listeners) various television clips and/or company logos or jingles. This issue comes up occasionally, and I’ve been quoted on it before. While the use of television clips is a copyright issue, the use of corporate logos is (generally) a trademark issue. I will examine each in turn.

“Motion pictures” are one of the works that are protected by US Copyright Law (since it is one of the eight types of works listed in Section 102 of the Copyright Act). Television clips would come under this umbrella. Thus, one would not be allowed to use the television clips of another (such as of a TV Network) without permission. The copyright owner of any (copyrightable) work is the only one who can reproduce the work, or display or publish it to the public. Using another’s television clip in a podcast in this way would infringe upon such rights. The same is true for sound recordings and musical works (or songs).

However, there are limits to this rule. The Copyright Act states that one can use another’s work without permission - even though it is protected by copyright - if that person uses it “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.” Such use is called “fair use” and is allowed. To determine fair use, a court would consider what sort of work is used, just how much of the other work was used, how it was used (and if such use in commercial or for nonprofit use), and whether such use hurts the market for the other mark.

Simply, if a podcast wanted to used a small blip of another’s TV Clip or sound recording - just enough to comment on for educational or newsworthy purposes - then that would probably be allowed. However, if a podcast played two minutes of a comedian’s sound recording, that would not be allowed, since it could hurt the comedian’s sales, thus affecting his market. Note that every situation is different, and would be decided by a judge if it ever came to that. Anyone who wishes to use another’s work in their podcast would have to make their own determination, their best educated guess if-you-will, as to what the law would rule if it ever had to - and hope that it never comes to that. This is why, it is often best to ask for permission just to cover your bases. You might just get it for free.

Branded logos (and depictions of characters such as Geico’s gecko, or DC Comic’s Batman) are protected by US Trademark Law, a completely independent body of law from Copyright Law. (A logo may also be protected under copyright law as a pictorial work, and a fictional character may be protected by copyright law by being in a literary work, but I digress.) One may not use another’s trademark as a trademark, simply, as a source for goods and services, in such a way that there will be a likelihood of confusion to consumers, who may think that you are somehow associated with, or are actually, the original owner of the copyright. Thus, I can’t use the COCA-COLA mark to write on my cans of a bubbly drink I am selling. However, I may be able to use the COCA-COLA mark to sell shoes (since that will not cause confusion), or to merely refer to the COCA-COLA company (since then I am not using it as a trademark, but rather to comment on another’s trademark). Thus, my podcast can display a picture of Batman or play the MGM Lion’s Roar or Intel’s jingle - all registered trademarks - to refer to those companies, but not in such a way that might cause listeners or viewers to think that I am somehow associated with such companies or sources. Many add such disclaimers, informing the viewer that there is no affiliation of association, just to stay safe.

The dark reality is that, no matter how safe you play it, you can always get served with a lawsuit that you’ll have to spend money to defend. Sadly, sometimes it costs just as much to be right as it does to be wrong. So unless a podcaster knows that their use of a copyrighted work is fair use, or their use of a trademark will not cause confusion, it is often best to not use another’s work, or create a similar one yourself. The hope is that a podcast will have an attorney who could advise them accordingly in each situation.

Graphic above by C.J Hixon (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

August 8, 2012

July 10, 2012
Oops! Musicians’ Top 5 Bloopers.

Last week I was lucky enough to be interviewed by the fabulous Jennifer Grassman over at SeeTalkGrow, where I talked about the top 5 mistakes musicians make, often far too early in their career. If you missed it, you can view my interview here. In a little over an hour, I list the 5 bloopers, going into the main details (oxymoron!) of each. For those who don’t have an hour, I list the 5 biggies here, with a summary of the details of each.

The 5 most common (and coincidentally, probably biggest) mistakes that musicians make is a failure to take care of these fairly simple, yet essential tasks:

1. Register All of Your Works With the United States Copyright Office.

When you create a song or a sound recording (that is original and somehow written down, recorded, or as the law requires, ‘fixed in a tangible medium of expression’,) you also create—and own—its copyright. This gives you special rights towards the work that no one else has. But your job does not end there. You should register such copyrights with the United States Copyright Office. Why, you ask? After all, you already own your copyrights, and thus enjoy all of those special benefits!

Tell that to the judge, when another guy is telling the judge the same exact thing about your songs. Registration of a copyright in your name acts as evidence and a public record that the work belonged to you on a certain date. But that is only the beginning. Registration also offers a slew of other benefits that make the $35 dollar price tag on the application a sin to consider as an obstacle, especially considering the fact that you can (in many cases) throw your entire catalog of songs (or sound recordings) onto one application. If your artistic works are (and will be) the goods you’ll be earning your livelihood on, then merely registering them as yours is the most basic and important thing you can do.

Submitting a copyright application is something you can do without an attorney if you’ve done the research, but this is not advised.

2. Know Exactly Who Owns What.

Generally, the author (or creator) of a song or sound recording is the one who owns its copyright. But identifying the author(s) of a song is not always so clear. Say you wrote the lyrics and some of the melody, but your pianist helped with the melody, your drummer changed the rhythm, and your producer switched everything around while laying down the tracks. Who owns the song? Who owns the sound recording? How much of the pie does each author get? (You may want the owner (or one of the owners) to be a company that you create for such a purpose.)

There are rules for this, but they are not always clear. For this reason and others, you must set out such matters in a Band Agreement and/or some other agreement (such as an Operating Agreement for your LLC, etc.)

You’ll also want to determine which band members can use the band (or company) name (in the event of a breakup), sign or write checks on the group’s behalf, and how a member can quit, buy-out another, or invite other people into the group.

While it may be uncomfortable to sit all your buddy-collaborators down to wrestle out these issues, the more you work out now, the smoother your entire future will go, and the less trouble you’ll have later on. The sweet security of having such an agreement will remain long after the brief discomfort of making one is gone.

3. Hire An Attorney To (At Least) Look Over ANY Contracts You Enter Into.

This is especially true for any contracts in which you are selling, licensing, or otherwise dealing with the ownership rights of your sole livelihood: your songs or sound recordings. Fraud exists—and I’ve seen it. I’ve seen people sell songs they don’t own and enter into one-sided contracts with unfair terms regarding the term, price, rights sold, or venue. There are countless pitfalls here that only a seasoned attorney can spot. Look out for your rights! Even if you have an attorney merely ‘look things over’, this is one place you should invest in being more safe than sorry. 

4. Choose A Band Name No One Else Is Using.

Why? Besides diluting your name with the public, choosing a band or artist name that someone else in the music (or similar) industry is using can present tremendous issues for you in the future, including the danger that someone else can stop your from using your name (that you may at that point have spent thousands of dollars and hours building) at all. Trademark law presents such issues, and I go into them in some details during my interview, including why, how, and when you may want to register your name as a trademark.

5. Network! Hussle! Get OUT There!

If you think making good music is enough for success, you’re sadly mistaken. The story of a hidden Youtube video becoming a hit is far, wide, and exaggerated, if true at all. (That is why it is called a story). I am amazed how many musicians I speak to (and personally know) who do not take part in LinkedIn conversations (let alone even have a page), network with other musicians, music supervisors (who, by the way, often listen to the opinions of musicians they’ve placed before as well as other sources), managers, and their audience. So jump on twitter, LinkedIn, facebook, and all those other great sites, and reach out!

At the same time, educate yourself about the business. Though it is not your full time job to master the industry (as your agent, attorney, publicist, and managers you hire will do their parts for you) it really pays off to spend some of your free time reading about this ‘copyright’ gibblegobble (whether on the internet or from the extensive variety of relevant books now in print). After all, these songs are your babies. Get to know their legal status well, and before long, they may go out and make you proud (and wealthy at that).

That was a brief summary of pitfalls to avoid. But if you’re serious about avoiding them, listen to my interview, accomplish the ones you can, and hire an attorney to help you with the ones you can’t do alone. After all, if you don’t do it, someone else will, and they’ll be taking your place on that stage.

June 27, 2012
Copyright Protection Requires Originality. But Is Anything Really Original?

 To earn any copyright protection, a work must have some originality to it. This means that you had to put at least some creativity into creating it, and that you created it yourself, without merely copying someone else’s work. (It is irrelevant if your song coincidentally ends up sounding exactly like someone else’s. In theory. While the law does not find infringement in such a case, it might take a trial (and thus lots of time and money) to arrive at such a finding. Nothing stops an angry accuser from filing a lawsuit, and, unfortunately, sometimes it costs as much to be right as it does to be wrong.)


Again, one cannot merely copy someone else’s work. But isn’t that all we do? Even the law understands that all art must borrow, in a sense, from past works. Justice Story said this most poignantly in Emerson vs. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845): ” In truth, in literature…and in art, there are, and can be, few things, which, in an abstract sense, are strictly new and original throughout. Every book in literature, science, and art borrows, and must necessarily borrow….” This is especially true in music (Okay, outside of the Beck and The Flaming Lips?) where past influence is great and thousands of songs are based upon the same chord sequences, such as VI-IV-I-V.

This is why I think the discussion is silly, along with other over-analyzed conversations about how “no action is really fully selfless” or “because of desire and science, we don’t fully have free will.” Of course there are selfless acts, and something we call free will (and know well). The fact that we may feel satisfaction from giving, or are a slave to causation does not fully deny these facts.

Likewise, of course there is originality! (Granted, it may be in the way we steal things. Ironic, for sure.) Is this post not original, since I am using letters others invented? In a sense, but in a sense any logical person should not arrive at. (They’d be over-thinking it).

The quote in the photo above is certainly not incorrect. It is thoughtful, deep, and true in a sense. Of course, if you really think about it, nothing is fully original. But if you really think about it, there is also no such thing as ‘green’ (for it is just waves of light), nor love (heart palpitations?) and there is no free will (neural sparks in our brain). But we know this is not true. There actually is green (we just call it green) and there is free will (or something we just call free will), and there is certainly love. To whatever extent those things match the definitions we give them is another conversation.

So should we really think so deep about such things? We need not ponder over this (as many have) for more than a few moments to realize that some times, it is best not to over think such matters. Originality is a matter of extent, and every new work has some form of it, just as every baby or snowflake is different than the next from the moment they come into this world. There is originality, dammit, and I’m happy it is here.

June 21, 2012
Don’t Tell Me Not To Steal Music. Sing It To Me!

Just after the earliest rays of sunlight broke through the clouds at the ungodly hour of 6am this past Saturday morning, a young girl started up her computer. She was a music fan, a senior at American University (where she manages their radio station), and an intern at NPR. Opening up NPR’s blog, she began to type a new post for the day. 

Meet Emily White. In short, her post focuses on the fact that while everyone is sentimentalizing the beauty of physical records (ah, the smell of dusty vinyl!), she has trouble relating to this since “I’ve only bought 15 CDs in my lifetime. Yet, my entire iTunes library exceeds 11,000 songs.” Alright, Emily. We get it. You’re young and unable to appreciate what an older generation is missing more and more. Fair enough. On my first read, I assumed that she’s paid for most (if not all) of her music. Perhaps I was naive. Here is what comes next.

Emily talks about her 11,000 songs. “A few are, admittedly, from…Kazaa. Some are from my family. I’ve swapped hundreds of mix CDs with friends…” She even describes how “I spent hours sitting on the floor of my college radio station, ripping music onto my laptop.” It is certainly shocking that a self-described music fan would steal thousands of songs, let alone publicize this to the world on NPR’s website. But let’s face it— it’s not too shocking. The second part (writing about it) is more shocking than the first. We all had friends (or friends of friends) who came over our house in high school or college with a thumb drive loaded with songs they were ready to spill out into friends’ computers. I’m proud to say I’ve paid for maybe 97% of the 5,000 songs in my library, but only some of my friends could say the same.

But Emily stated this in a brief, nonchalant way. While that in itself is indicative of a new mindset about music we can rant and rant about (as many have and do), this was not the focus of her article. She goes on.

She closes with the main point of her article. While she has “come to realize the gravity of what file-sharing means to the musicians I love,” and she “can’t support them with concert tickets and T-shirts alone,” she explains that “I honestly don’t think my peers and I will ever pay for albums. I do think we will pay for convenience.”

What kind of convenience, Emily?

Finally, she calls for a “massive Spotify-like catalog of music” that she can synch to her devices, so that everyone can have access to an infinite playlist, and artists will get paid performance royalties, as she explains, “hopefully with more money going back to the artist than the present model.” This is what she would pay for. Hell, I would too. I myself have wished for one site I can (sign up with for a fee and) go to where I can watch any television show or movie ever recorded. I’m not sure how much I’d pay for a movie, but I’d be happy to pay for the convenience of watching them.

Innocent enough, right? Apparently not.

There has been a tremendous outcry (think Occupy Wall Street on steroids) against Emily’s post, as if she is evil incarnate. At The Trichordist, David Lowery (Cracker’s frontman) uses Emily’s post as a soap box upon which to (extensively) lecture the younger generation that their “small, personal decisions have very real consequences,” (they do), and that “it is up to us individually to examine the consequences of our actions. It is not up to governments or corporations to make us choose to behave ethically. We have to do that ourselves.” This in turn, resulted in angry responders to Lowery, including one from another “Emily White”, ironically. An angry responder at The Lefsetz Letter spends hours blasting Lowery for (making crappy music and) “wasting his time” spending hours beating up on an intern that has no power. And I’m here “wasting my hours” doing the same thing. The irony does not stop.

It’s as if Emily wrote an article entitled “Why We Should Steal Music” as opposed to the article she wrote, on “How Much I Want To Pay For Convenience Through A Model That Will Give Artists More Money Through Performance Royalties.” Emily has been grossly misinterpreted by David Lowery and other writers (unless they intentionally used her brief aside about having stolen music as a soapbox to lecture against that generation’s mentality…but I’d like to give them more credit than that.) No, she’s not as bad as they make her out to be. She just wants convenience. And more, she wants to pay for it!

Granted, Lowery makes some great points about how convenient it really is, dispels many notions about file-sharing (that I am unsure Emily had in the first place), and pointedly brings thoughtful criticism to models like Spotify’s or Grooveshark (though he goes too far listing Grooveshark along with other pirate sites, and makes the bold statement that they’re playing songs against artist objections? The truth is, it is not up to the artist anyway, but rather the entity who owns the recording copyright, namely, the label. Lowery makes other errors as well. But I digress.) But Emily was not even thinking about these matters. She was merely wishing for a site on which she can pay for any music (to stream) she wants.

Granted, Grooveshark and Spotify pretty much do. I wonder why she is unhappy with those. But that is not the point. Artists like Lowery are using trivial posts like Emily’s to shout to the world that “they are doing it wrong,” and then attempting to tell them just how the industry works (without any facts to back up their statements). Lowery makes some good points, but chooses the wrong time, place, and manner to do so.

So David, don’t tell us not to steal music. Sing it to us!

You can sing, right?

Don’t tell us we are doing it wrong, and then go blast the entire system we’ve worked out with this new thing we call the internet. Rather, bow your head to this new technology, and explain how we can make it better. Sing it! (‘Low,’ if you must.)

One analogy I favor, used by Lawrence Lessig: Before the airplane was invented, the law gave a property owner ownership over his land, the soil below, and the sky above. But airplanes came along, scaring many farmers’ chickens who ran into the barn wall to their death. Farmers sued for trespass, and the Court acknowledged that “it is ancient doctrine that common law ownership of the land extended to the periphery of the universe.” But Judge Douglas saw that with new technology, the law would have to change. Now we (obviously) do not require an airplane owner to “ask permission” before flying over another’s property. Rather, we just took that property away from them. (They no longer own it- airspace is now for the public). So this example would take artists’ ownership away from their sound recordings.

Obviously a bad idea. But still a great analogy.

So my solution is different: as the net makes it so EASY to rip a recording (as planes made it so easy to cross over other’s land), we have to make it even easier to pay for music, and significantly harder to steal it. When the radio (and other performance mediums) came out, we had the same problem we have now: how can one radio station conveniently play all music ever recorded? We all know the blanket license (via ASCAP, BMI, etc.) was the perfect (well, almost perfect) solution.

This is what Emily wants on a website!

Indeed, we have such a license for the performance of sound recordings on the net (through SoundExchange). How about for the purchase of them? 

We have to produce ideas that embrace the net and make it work for all of us. Educating consumers to empathize with ‘starving artists’ might help, but it won’t be enough. Certainly blasting female interns who write about their love of digital music and lecturing them on the royalty calculations of Spotify or on the Google ad system will not help. If we want things to change we have to appeal to the Googles and Spotifys of the world THEMSELVES (or their regulators) with concrete ideas that make is easier to purchase music than steal it.

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