Copyfraud: Techdirt Book Club Selection For April

from the get-reading dept

We'll have our discussion with Rebecca MacKinnon about her book soon, but as we've now hit April, I wanted to get people started on the second book we'll be discussing as a part of the Techdirt book club. This time it's Copyfraud and Other Abuses of Intellectual Property Law by law professor Jason Mazzone. This is a really fantastic book that came out last year, detailing how the overclaiming of rights is a huge problem these days. "Copyfraud" is a term that Mazzone came up with, but which has really caught on as a way to describe those who claim IP rights that simply don't exist.

As part of this, we're posting one of the chapters from the book (in two parts, starting with this post).

You can, of course, find the book at Amazon in hardcover or ebook form (those are both affiliate links, so we get a tiny cut if you buy via them) or get it from lots of other sources. It's also available to check out from many libraries. Stanford University Press also has some ebook rental options.

Since this came up with the last book, I'll address this head on: the ebook pricing on this book is kind of ridiculous. The Kindle offering is $15. The "rental" option from SUP is $7, but you only get to have the book for two weeks. I realize that these prices are not what most people here consider reasonable for an ebook (and I recognize that the idea of renting an ebook for two weeks at $7 will seem crazy to most folks). I spent some time discussing this with SUP, and they said that Amazon will not allow them to create a temporary discount via the Kindle store for just this group (though they tried), and said that they're a small, non-profit publisher, so purchasing the book would be about supporting their mission -- and they do publish some great books. I recognize where they're coming from, and also recognize that this will not satisfy many of you. For those who still want to participate in the discussion, there will still be this chapter that we're publishing, as well as Jason's original paper on Copyfraud. He was also recently on the Surprisingly Free podcast discussing the book.

For future books, we are looking for publishers and authors who actually understand why pricing ebooks at insane levels does them more harm than good, but that's a very small group of publishers, massively limiting our choices, and forcing us to avoid certain books that I believe are well worth reading. If people have suggestions for future books, we're more than happy to look them over.

In the meantime, read on for the first excerpt from Chapter 3 of Jason's book. Chapter 3 is all about Samples and Mashups, which is definitely relevant to what we usually talk about here.

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Excerpt from Chapter 3, "Samples and Mash-Ups" from Copyfraud and Other Abuses of Intellectual Property Law by Jason Mazzone.

Musicians have long borrowed from each other. Classical music, folk music, jazz, and rock all incorporate and rework elements from prior musical works. Bach and Handel borrowed from other composers. Bela Bartok made use of Hungarian folk songs. Elvis Presley’s music was heavily influenced by African American blues and gospel sounds. Led Zeppelin borrowed from Bukka White. The songs of the Beatles incorporate falsetto calls from Little Richard, two-part harmonies from the Everly Brothers, and the influences of Buddy Holly, early Motown, and Elvis. Bob Dylan derived the melody for “Blowin’ in the Wind” from the old spiritual “No More Auction Block.”

Digital technology has turned musical borrowing into a new form of art. Musicians using digital technology (producers, as they often prefer to be called) isolate portions—samples—of existing sound recordings and manipulate and combine those samples, often in unrecognizable forms, and include them in their compositions or use the samples to create entirely new recordings. Hip-hop, the musical genre pioneered by Jamaican immigrants in the South Bronx in the 1970s, began as live performance using two turntables connected by a cross fader to combine sounds from records. Beginning in the early 1980s, hip-hop artists commonly used digital samplers to create their works. By the time the Beastie Boys released their 1989 album Paul’s Boutique, which sampled from more than one hundred individual songs, hip-hop artists were using digital technology to turn out dense combinations of beats, loops, and vocals. Today, digital sampling technology is cheaply available. Anybody can sample using a stand-alone sampler or software on a computer. While the hip-hop artists of the 1970s performed at block parties, the Internet enables today’s producers to share their works with the entire world. Sampling has spread well beyond its hip-hop roots and features in many musical styles and in songs that top today’s charts.

The same technological developments that facilitate sampling have also contributed to the diminished fortunes of the recording industry, by way of illegal online sharing of music and the emergence of independent labels and other new distribution mechanisms that give the public access to a vast catalog of music unconnected to the large labels. The recording industry’s response to these developments has been to aggressively enforce its copyrights through, among other things, lawsuits against file sharers and lobbying of Congress for enhanced protections for copyright owners and increased penalties for infringers. The industry has also sought out new revenue streams.

The recording industry’s twin desires to control its copyrights and to increase its revenues have resulted in record labels demanding that all samples from copyrighted works they control be licensed. In other words, the industry takes the false position that there is no fair use in the music world. Today, anybody can sample past recordings and create new songs. But according to the music industry, everybody who does so without permission is breaking the law.

FROM THE SOUTH BRONX TO THE COURTHOUSE

Assuming the other requirements for copyright eligibility are met, a sound recording is protected by a copyright because the recording is a fixation of the performance of a composition. The copyright in the sound recording is usually assigned by the artist to the record label. There is a separate copyright in the musical composition (unless it is in the public domain) that is the basis of the recording. That copyright is typically held by a music publisher. When elements of an existing sound recording are used in a new work, there are, therefore, two copyright owners who may have a claim that the new work is infringing.

During the 1980s, when hip-hop entered its heyday, the legal status of digital sampling was uncertain. The technology for digital sampling only became available after the enactment of the Copyright Act in 1976, so the statute does not deal specifically with sampling. At first, artists and record companies acted with little regard to whether sampling was lawful. Artists did not typically ask for permission to sample, and record labels did not object when they sampled. The labels did not see much at stake—what was the big deal in using a short snippet of a track that was no longer popular?—and they had their own artists who were doing the same thing, so it was better not to rock the boat. When artists did ask permission to sample, it was generally given for a few hundred dollars.

The landscape began to change in the late 1980s. Record companies had seen the commercial success of hip-hop albums and began seeking fees for samples. Initially, these took the form of buyouts: the copyright owner would grant a license to use the sample for a one-time fee. Buyout fees started at $1,500 but soon crept higher. Copyright owners also began insisting on additional payments once album sales exceeded a specified number. Further, record companies demanded back payments for samples in recordings that had already been released.

Public Enemy’s 1988 album, It Takes a Nation of Millions to Hold Us Back, is one of the most successful and influential hip-hop albums of all time. The album’s densely packed samples include trumpet squeaks from a James Brown recording, a drum loop from the Commodores, Bob Marley vocals, and a speech by Malcolm X. According to Public Enemy’s front man, Chuck D, when in the late 1980s hip-hop albums were generating substantial revenues, the labels clamped down on unauthorized uses of their recordings. This led to a system of reciprocal enforcement among the major labels. Chuck D says, “All the rap artists were on the big six record companies, so you might have some lawyers from Sony looking at some lawyers from BMG and some lawyers from BMG saying, ‘Your artist is doing this,’ so it was a tit for tat that usually made money for the lawyers, garnering money for the company.”

A 1991 decision by a federal district court in New York gave an important boost to the argument by copyright owners that they were entitled to payment for all samples. The court held that rapper Biz Markie had infringed the copyright in Raymond “Gilbert” O’Sullivan’s “Alone Again (Naturally),” which Markie had sampled for his single “Alone Again” on his album I Need a Haircut. For his version of “Alone Again,” Markie took a ten-second sample from O’Sullivan’s recording and repeated or “looped” it to create the background to the song. Markie also used the title of O’Sullivan’s song as his chorus. Markie’s label, Warner Brothers Records, had asked O’Sullivan’s representatives for permission to use these elements, but Warner released the album before receiving a response. In deciding the ensuing copyright infringement suit against Warner and Markie, the court began its opinion as follows: “ ‘Thou shalt not steal.’ has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.” In addition to barring distribution of Markie’s album, the court referred the case to the U.S. attorney for criminal prosecution.

The district court’s opinion in this case was remarkably short on analysis. It cited not a single case or statutory provision in support of its conclusion that Markie’s sampling infringed the copyright in the plaintiff’s song. Biz Markie was not prosecuted; nonetheless, the case had a profound effect on sampling, particularly by hip-hop artists. The case, and a wave of copyright infringement actions brought following it, signaled to copyright holders that they could claim infringement for any unauthorized sampling and therefore had a right to insist that all samples be licensed and paid for. The decision was also a warning to record companies that they could be sued if samples were not licensed. In short order, the major labels refused to release recordings unless samples were cleared, and they developed among themselves a practice of licensing.

THE DAY THE MUSIC DIED

De minimis copying and fair use of sound recordings were soon dealt a more targeted blow. Bridgeport Music, Inc., is a one-person corporation owned by former music producer Armen Boladian. Bridgeport does not actually produce any music; instead, its business is acquiring music copyrights and then enforcing them. In the 1970s, according to Bridgeport, it obtained the copyrights to most of the works of funk pioneer George Clinton and his band Funkadelic. (Clinton has disputed Bridgeport’s ownership claims.) Along with the music of James Brown, Clinton’s music was the most frequently sampled by rap artists in the 1990s. In 2001, Bridgeport brought in federal court in Nashville, Tennessee, some five hundred claims of copyright infringement of recordings and compositions against more than eight hundred artists. In preparing its lawsuits, Bridgeport had attempted to locate every sample from George Clinton’s works and from other musical works in which it owned a copyright. Bridgeport claimed that any sampling of a sound recording it owned was copyright infringement. Many of the cases Bridgeport brought quickly settled. Others were dismissed because Bridgeport had named the wrong party or for other technical reasons. Bridgeport also lost a number of cases on the merits. However, Bridgeport’s legal position that all sampling is illegal was endorsed in a 2005 decision by a panel of the U.S. Court of Appeals for the Sixth Circuit in Bridgeport Music v. Dimension Films.

The defendants in that case had sampled from Funkadelic’s 1975 recording of “Get Off Your Ass and Jam” in the rap song “100 Miles and Runnin’,” which was included in the soundtrack to the defendants’ 1998 movie I Got the Hook Up. Clinton’s tune begins with a three-note combination solo guitar riff that lasts four seconds. “100 Miles” copied a two-second sample from that riff and lowered the pitch. The copied piece was looped and extended to sixteen beats. The sample appeared in five places in the background of “100 Miles,” with each loop lasting about seven seconds. The lower court found that because the copying either was de minimis or lacked substantial similarity to the Funkadelic recording, it did not infringe Bridgeport’s copyright. The lower court reasoned that the quantity taken was small and that listeners would not be able to identify the source of the sample. On appeal, the Sixth Circuit panel disagreed and held that the de minimis doctrine had no application to sound recordings. The court’s bottom line: “Get a license or do not sample.” This ruling, based upon inferences the court drew from the text of the Copyright Act, and raising the possibility that sampling even a single note would be infringement, is of dubious merit.

While the Sixth Circuit panel denied it, Bridgeport Music’s shotgun litigation strategy probably influenced the court’s decision to reject the de minimis doctrine. The problem with applying the de minimis rule to sound recordings, the court explained, was that it would require judges to perform “mental, musicological, and technological gymnastics” in order to determine whether the rule covered particular instances of sampling. While praising the trial judge’s efforts in the case, the court noted that “[w]hen one considers that he has hundreds of other cases all involving different samples from different songs, the value of a principled brightline rule becomes apparent.” The obvious objection, though, is that a bright-line rule need not be the rejection of the de minimis doctrine in the case of sound recordings and a resulting ban on all sampling. The court could have held, for example, that four seconds or less is de minimis sampling and not infringement. That too would have allowed the district court to deal quickly with many of the other Bridgeport cases on its docket.

The Sixth Circuit’s analysis assumed also that those who sample without permission could have instead obtained a license. “We do not see this as stifling creativity in any significant way,” the court said of its ruling, because “many artists and record companies have sought licenses as a matter of course.” The court predicted its decision would simply make licensing universal and more efficient: “[T]he record industry, including the recording artists, has the ability and know-how to work out guidelines, including a fixed schedule of license fees, if they so choose.” However, many copyright holders do not want their works sampled at any price. David Bowie, for example, has said, “I would not give permission if I felt the work to be morally or politically repugnant.” Copyright owners are also in a position to charge fees for samples that make the new recording prohibitively expensive. The Sixth Circuit thought that “the market will control the license price” so that the copyright owner could never “exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording.” There is, however, no market if the copyright owner flat out refuses to allow sampling. Moreover, the very reason for sampling may be that, even with sophisticated technology, a particular vocal or instrumental cannot be perfectly replicated in the studio.

After the panel’s decision in the Bridgeport case, the defendants unsuccessfully petitioned the entire Sixth Circuit Court of Appeals for review. Remarkably, three of the four major record labels submitted an amicus brief in which they set out strong objections to the rule that sampling must always be licensed. Their brief stated that the “Record Companies—much of whose business depends on copyright protection— view the [p]anel’s rule as a significant threat, both to creativity and to their businesses.” The record companies argued that, far from protecting their interests, the Bridgeport decision would subject them to litigation because “many commercially successful records have been distributed that embody samples of sound recordings that were unlicensed because the artists or producers considered them too brief to require a license.” In addition, the labels contended, the panel’s decision “will deprive creators of sound recordings of the ability to do what creators in all other media may do—use de minimis (and therefore non-actionable) portions of prior works to build on and create new works.” The labels disputed the panel’s assumption that its rule would simply shift sampling from litigation to licensing. For one thing, the brief stated, there was in the industry a “recognition that de minimis sampling is not, and should not be, actionable.” For another, the court’s invitation to labels and artists to work out guidelines, including a fixed schedule of license fees, was impractical and, in the absence of congressional authorization, raised antitrust problems. When major music labels say that a court has over-protected copyrights in sound recordings, we should listen.

An especially troubling consequence of the Bridgeport case is that its bright-line rule—“Get a license or do not sample”—comes without any analysis of fair use. Because the lower court applied the de minimis standard and found no infringement, it did not consider whether the fair use defense applied. On appeal, the Sixth Circuit panel declined to decide whether the sample at issue was protected by fair use because it wanted the lower court to consider that issue first upon remand of the case. However, after the Sixth Circuit’s decision, the dispute settled. There was, therefore, never a fair use ruling in the case. It is unfortunate that a seemingly decisive decision by a federal appellate court on the lawfulness of sampling comes without any consideration of whether fair use protects sampling.

Here, a difference between the doctrine of de minimis copying and fair use matters a great deal. The doctrine of de minimis copying is a judge-made rule. In the final analysis, it is the prerogative of courts to tailor the doctrine as they see fit. Fair use, however, is a statutory provision that binds judges. It limits, without exception, all the exclusive rights of copyright owners. Some copying from copyrighted recordings is, necessarily, fair use. Because of the procedural history of Bridgeport, however, we never learn if fair use protects the defendants’ use of the sample from Funkadelic’s tune. The unsurprising result is that copyright owners (and samplers themselves) treat Bridgeport as standing for the proposition that all sampling is infringement. Even though the Copyright Act protects fair use of all species of copyrighted works, a legal decision on the question of de minimis copying enables copyright owners to assert that there is no fair use when it comes to sound recordings.

Subsequent case law has also not dealt squarely with the fair use issue. Although the Sixth Circuit has decided a slew of additional disputes involving litigation by Bridgeport Music, it has never decided whether sampling is protected by fair use. Another federal court could disagree with the Sixth Circuit and find that the de minimis doctrine applies to sampling. A different court could also find that sampling is protected by fair use. But Bridgeport has cast a wide shadow, and rather than go before a (different) court to test the legality of sampling, producers have instead opted to obtain sampling licenses. While courts have held that fair use applies to compositions, courts have provided no guidance on when sampling from an existing sound recording constitutes fair use. Says Philo T. Farnsworth, the owner of a label that releases sampled recordings, “We’d love to see a court case or legislation recognize transformative sampling as fair use. As of this moment it seems to exist in a very gray area.”

Next week, we'll post the second part of this chapter, in which Mazzone discusses how this ruling and the burdens associated with a requirement to license every single sample, has significantly stifled creativity.

Excerpt from Copyfraud and Other Abuses of Intellectual Property Law by Jason Mazzone, (c) 2011 by the Board of Trustees of the Leland Stanford Jr. University, all rights reserved. By permission of the publisher, www.sup.org. Except as authorized by the U.S. Copyright Act of 1976, no reproduction or distribution is permitted without the prior written permission of the publisher.

Filed Under: copyfraud, copyright, jason mazzone