Why The Latest Supreme Court Ruling In Kirtsaeng May Have A Much Bigger Impact On Copyright & Fair Use

from the phrasing-matters dept

Earlier this month, we wrote briefly about the Supreme Court's second Kirtsaeng ruling, which focused on the issue of fee shifting in copyright cases. We didn't spend that much time on it (and hadn't covered the run up to the Supreme Court either). We had basically assumed that the first Kirtsaeng ruling from the Supreme Court, about whether or not the First Sale Doctrine applied to goods outside the US, was the real legacy of the Kirtsaeng fight, rather than a more mundane issue about fee shifting -- especially when the more recent Kirtsaeng ruling was basically just "courts need to look at more than just if the original lawsuit was 'objectively reasonable'" (but fails to give much guidance about what else should be looked at). Yes, we noted, this may ward off some bogus copyright lawsuits, depending on what standards the courts start to coalesce around, but there wasn't much big news in the ruling.

However, copyright expert Jonathan Band spotted something important that many folks missed. Buried within the ruling are some statements about the purpose of copyright that may become quite useful in future cases. Specifically, it looks like the Supreme Court has just blessed the fact that copyright should encourage people to build upon existing works, and appears to be giving a nod to a broad interpretation of fair use that says that building on the works of others is a key part of the purpose copyright itself.

The Court quoted its 1994 decision in Fogerty v. Fantasy that “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Court then stated, “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.”

The Court’s focus on the subsidiary aim of “enabling others to build on that work” goes beyond its previous pronouncements concerning how to achieve the objective of enriching the public through access to works. In 1984, in Sony v. Universal, the Court recognized that defining the appropriate scope of copyright protection “involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other…” In 1991, in Feist v. Rural Telephone, the Court stated that “copyright assures authors the right to their original expression, but encourages others to build freely on the ideas and information conveyed by a work.”

Thus, in these earlier cases, the Court discussed building on “the ideas and information conveyed by a work.” But in Kirtsaeng, the Court did not limit the reuse to “the ideas and information conveyed by a work;” rather, it more broadly addressed building “on that work.” Presumably the Kirtsaeng Court was referring not only to the ideas and information in the work, but also the expression in the work–to the extent use of the expression served “the purpose of enriching the general through access to creative works.” In other words, the Kirtsaeng Court was referring to fair use and other exceptions and limitations in the Copyright Act.

Band notes that hopefully this will help serve as a reminder to Congress about the important public interest objectives built into copyright. But I think it may start to show up in lots of other fair use lawsuits as well...

Filed Under: copyright, creativity, culture, fair use, legal fees, sudap kirtsaeng, supreme court

Two Separate Copyright Rulings Around The Globe May Finally Clear The Copyright Way For Sampling

from the good-to-see dept

This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer: A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:

Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.

And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:

We reject that interpretation of § 114(b). Bridgeport ignored the statutory structure and § 114(b)’s express limitation on the rights of a copyright holder. Bridgeport also declined to consider legislative history on the ground that “digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting Congress’ intent as to statutory structure. Moreover, as Nimmer points out, Bridgeport’s reasoning fails on its own terms because contemporary technology plainly allowed the copying of small portions of a protected sound recording....

Close examination of Bridgeport’s interpretive method further exposes its illogic. In effect, Bridgeport inferred from the fact that “exclusive rights . . . do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds,” ... the conclusion that exclusive rights do extend to the making of another sound recording that does not consist entirely of an independent fixation of other sounds. As pointed out by Nimmer, Bridgeport’s interpretive method “rests on a logical fallacy.” ... A statement that rights do not extend to a particular circumstance does not automatically mean that the rights extend to all other circumstances. In logical terms, it is a fallacy to infer the inverse of a conditional from the conditional.

The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:

We disagree for three reasons. First, the possibility of a “physical taking” exists with respect to other kinds of artistic works as well, such as photographs, as to which the usual de minimis rule applies.... A computer program can, for instance, “sample” a piece of one photograph and insert it into another photograph or work of art. We are aware of no copyright case carving out an exception to the de minimis requirement in that context, and we can think of no principled reason to differentiate one kind of “physical taking” from another. Second, even accepting the premise that sound recordings differ qualitatively from other copyrighted works and therefore could warrant a different infringement rule, that theoretical difference does not mean that Congress actually adopted a different rule. Third, the distinction between a “physical taking” and an “intellectual one,” premised in part on “sav[ing] costs” by not having to hire musicians, does not advance the Sixth Circuit’s view. The Supreme Court has held unequivocally that the Copyright Act protects only the expressive aspects of a copyrighted work, and not the “fruit of the [author’s] labor.” ... Indeed, the Supreme Court in Feist explained at length why, though that result may seem unfair, protecting only the expressive aspects of a copyrighted work is actually a key part of the design of the copyright laws.... Accordingly, all that remains of Bridgeport’s argument is that the second artist has taken some expressive content from the original artist. But that is always true, regardless of the nature of the work, and the de minimis test nevertheless applies.

And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:

Because we conclude that Congress intended to maintain the “de minimis” exception for copyrights to sound recordings, we take the unusual step of creating a circuit split by disagreeing with the Sixth Circuit’s contrary holding in Bridgeport. We do so only after careful reflection because, as we noted in Seven Arts Filmed Entertainment Ltd. v. Content Media Corp.,.. “the creation of a circuit split would be particularly troublesome in the realm of copyright. Creating inconsistent rules among the circuits would lead to different levels of protection in different areas of the country, even if the same alleged infringement is occurring nationwide.” ... We acknowledge that our decision has consequences. But the goal of avoiding a circuit split cannot override our independent duty to determine congressional intent. Otherwise, we would have no choice but to blindly follow the rule announced by whichever circuit court decided an issue first, even if we were convinced, as we are here, that our sister circuit erred.

It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:

After listening to the recordings, we conclude that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition.

Furthermore, the fact that the sample was modified helps Madonna's case:

The horn hit itself was not copied precisely. According to Plaintiff’s expert, the chord “was modified by transposing it upward, cleaning up the attack slightly in order to make it punchier [by truncating the horn hit] and overlaying it with other sounds and effects. One such effect mimicked the reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was prolonged and heightened.” Moreover, as with the composition, the horn hits are not isolated sounds. Many other instruments are playing at the same time in both Love Break and Vogue.

The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:

We hold that the “de minimis” exception applies to actions alleging infringement of a copyright to sound recordings.

Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.

There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:

The plaintiff is the owner of a copyright in a fixed sound recording. This is a valuable property right, the stock-intrade of artists who make their living recording music and selling records.... It is no defense to theft that the thief made off with only a “de minimis” part of the victim’s property.

And then there's this:

True, Get a license or do not sample doesn’t carry the same divine force as Thou Shalt Not Steal, but it’s the same basic idea. I would hold that the de minimis exception does not apply to the sampling, copying, stealing, pirating, misappropriation – call it what you will – of copyrighted fixed sound recordings. Once the sound is fixed, it is tangible property belonging to the copyright holder, and no one else has the right to take even a little of it without permission.

It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.

Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.

Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:

If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.

The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:

The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.

Just because you can license some samples doesn't fix the situation:

Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.

In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.

Filed Under: 6th circuit, 9th circuit, bridgeport, creativity, de minimis, fair use, germany, hip hop, kraftwerk, madonna, music, remix, samples, vmg salsoul

DailyDirt: Thinking Machines

from the urls-we-dug-up dept

It's a source of wonder and excitement for some, panic and concern for others, and a whole lot of cutting edge work for the people actually making it happen: artificial intelligence, the end-game for computing (and, as some would have you believe, humanity). But when you set aside the sci-fi predictions, doomsday warnings and hypothetical extremes, AI is a real thing happening all around us right now — and achieving some pretty impressive feats:

• AlphaGo has already conquered the game many thought a computer never could, but can it master the more "human" game of poker? The statistics it can handle, but what about the behavioural cues? [url]
• Can machines be as creative as humans? Or moreso? There's plenty of reason to believe they are already well on the way. [url]
• This cluster of IBM chips mimics 16-million neurons and 4-billion synapses to provide an insanely fast platform for neural network applications. The Lawrence Livermore National Lab is seeing if it can replace more traditional supercomputers. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: ai, algorithms, alphago, artificial intelligence, creativity, game algorithms, games, lawrence livermore national lab, machine learning, neural network, poker, supercomputers
Companies: google, ibm

Fine Brothers History Of Overaggressive Behavior Doomed Their Plan; But Hopefully Others Will Revive The Good Parts

from the there-really-were-some-good-parts dept

I kind of figured a lot of people would disagree with my post yesterday, in which I noted that the underlying idea behind what the Fine Brothers were trying to do in helping to support fans in making their own versions of the various "React" programs was actually a good idea. The point was that the idea behind it was actually pretty good. A big brand/entertainment property encouraging fans to make their own versions of their program, helping them with additional support, promoting those fan videos and helping them make money -- in exchange for a cut of the revenue -- remains a cool idea. Unfortunately, the idea came from a company that had a really bad history of overly aggressive behavior in taking down content, deleting negative comments and ridiculously and petulantly claiming that anything remotely similar to what they did was somehow unfair. The examples of them whining about Buzzfeed and Ellen having similar segments was particularly galling. On top of that, the trademarking of various terms, including the very generic "React" really pushed things in the wrong direction.

Many of you insisted that it was impossible to separate out these actions from the underlying idea of supporting fan videos -- and you're probably right. It's good to see that the Fine Brothers have now completely backed down from the plan, shutting down React World and announcing that they've decided to drop all of their trademark claims. On top of that they've agreed to drop all of their ContentID claims on YouTube. At this point, that was the only thing they really could do, and it was clearly the right move. Their history of overly aggressive behavior really made it impossible to do something else.

But... I'm hoping that people can still separate out the core idea that was there behind React World, and distance it from the fact that it was being put in place by people who had too much bad history to make it work. I still think that it would be great if other big brands recognized the value in freely supporting fans in making their own fan works, and even allowing them to monetize those works. Right now, fan homages to books, TV shows, movies and more live in a nebulous world in which, if they get too big, or even try to make any money, the companies behind the brands often shut them down completely. If you want to do something professional -- such as that big Star Trek Fan Film that is currently facing a lawsuit -- it's basically impossible. And that's a shame.

But imagine if some of these larger entities took the same approach as the key parts of the Fine Bros plan: allowing anyone to make stuff, even providing them with additional assets including tools, graphics, guidelines, etc. And then even saying that they'll help support and promote the best ones, in exchange for a cut of the profits? It could really lead to some cool new creativity from fans and more closely attach those fans to the originals. It's that underlying idea that I found intriguing from what the Fine Brothres had put together -- without recognizing how incredibly imperfect the Fine Brothers were as the individuals to deliver that message. So it's good that the Fine Brothers have recognized their past errors and backed down on basically all of their more egregious moves (not sure about their aggressive comment deletion stuff, though). But I hope that this doesn't doom any other larger entertainment property from entertaining ideas around supporting fans creating their own works, without upfront licensing fees.

Filed Under: creativity, fan fiction, fan videos, fine brothers, licensing, react, supporting fans, trademarks
Companies: fine brothers

Nina Paley Argues Why Copyright Is Brain Damage

from the sovereignty-of-your-own-mind dept

We first wrote about Nina Paley in 2009, upon hearing about the ridiculous copyright mess she found herself in concerning her wonderful movie Sita Sings the Blues. While she eventually was able to sort out that mess and release the film, she also discovered that the more she shared the film, the more money she made, and she began to question copyright entirely. She originally released the film under a ShareAlike license, promising to go after people who didn't uphold the ShareAlike parts, but then moved to a full public domain dedication and has become quite vocal in recent years about not supporting any kind of copyright and even raising some important concerns about many forms of Creative Commons licenses.

Paley has also written a bunch of posts for us, including the wonderful "Make Art Not Law" post she wrote about two years ago. Much of the material from that post appears to have morphed into a recent TEDx talk that Paley gave, entitled Copyright is Brain Damage. It's worth watching: Again, it's quite similar to her post from two years ago, but interesting to watch in a different form. While the "brain damage" claim certainly feels (perhaps intentionally) hyperbolic, she's actually making a really important point in calling it that: she notes that the entire mechanism of copyright is to cut off the flow of information, and analogizes that to a brain, noting that when information flow is cut off between sections of the brain, it's a form of brain damage. That's a somewhat extreme view to take, and I'm not sure it's one that I think is a truly fair analogy, but damn if it's not thought provoking.

I've long wished there was a better way to express how much is lost when copyright cuts off an important flow of information -- because it's obvious that it harms creative expression, artwork and innovation. But it's difficult to show what's "lost" when it never was allowed to exist in the first place. The idea of analogizing it to brain damage is a really fascinating one that does, at the very least, present a strong visual image for the kind of harm that can be done when copyright law is abused.

Filed Under: brain damage, copyright, creativity, culture, information flow, nina paley

The GTA 5 Wildlife Documentary Is Why Rockstar Was Smart To Embrace Fan Films

from the fan-works dept

When Rockstar released its own video editor for Grand Theft Auto 5, the move in and of itself received only mild applause. People have been using video games to make entirely transformative works for some time now. More important was the signal that Rockstar was sending: use our game to make fan films. This is smart for any number of reasons, but allowing fans to use games as they see fit makes those games more valuable to the market, and those transformative works ultimately only serve to advertise the original game in the first place. It's a win for everyone, in other words.

Well, what started in GTA 4 has moved on into GTA 5. One example is a recently released fake documentary about the wildlife in the GTA 5 universe. With the exception of some of the extreme closeups, the whole thing has impressive production values, and the voiceovers and music are spot on for the genre.

The creatures of GTA V all lead secret lives that we often never get to see while playing. They hunt. They eat. They try to survive. 8-BIT BASTARD and Chaney555 tap into all of that with their latest GTA documentary, “Onto The Land.” It’s an impressive 15 minute video that took 6 months to research and develop, something which is pretty obvious when you look at the quality at display.

I think the most striking part of this fan film is just what the technology of a video game allows a third party to create. We've talked for some time about how the barriers for generating all kinds of media are shortening, or becoming non-existent. That includes creative film. This video, which took a mere six months to make and was a labor of love for essentially one individual, ought to serve notice of exactly what kind of impressive work can be done simply operating inside a video game.

Additionally, you have to think that Rockstar is loving this. The company's game gets all kinds of free publicity, the filmmaker gets to create his work inside of the game, and the public gets to enjoy the fun that results. All because a content producer decided to unshackle its content and embrace fan-works.

Filed Under: copyright, creativity, documentary, fan films, gta
Companies: rockstar

World Is Catching On That Creativity And Creative Jobs Have Been Growing, Not Disappearing, Post-Napster

from the the-sky-is-rising dept

A few years back, we did a deep dive into the actual numbers for how the entertainment industry had been faring in the post-Napster era, and found that, contrary to the doom and gloom stories the legacy entertainment industry has been stating, the sky was rising, not falling. Since then, we've continued to release updated versions of our Sky is Rising reports, which continue to show the same basic thing: more creative output than ever before in history, more people creating content than ever before in history, more people making money as content creators than ever before in history and more money being spent on content than ever before in history. In other words, the whole idea that the internet and file sharing somehow killed the entertainment industry is complete bunk.

It appears that people are finally starting to notice.

Steven Johnson, who has written some fantastic books over the years (and built a few startups) has a thorough and detailed piece in this weekend's NY Times magazine, basically making the exact same point that we made in our Sky is Rising reports, going through a lot of the same data. He calls it "The Creative Apocalypse that Wasn't (which is perhaps more catchy than our title). The short version: things are really, really good for creative content. He starts with musicians:

What do these data sets have to tell us about musicians in particular? According to the O.E.S., in 1999 there were nearly 53,000 Americans who considered their primary occupation to be that of a musician, a music director or a composer; in 2014, more than 60,000 people were employed writing, singing or playing music. That’s a rise of 15 percent, compared with overall job-­market growth during that period of about 6 percent. The number of self-­employed musicians grew at an even faster rate: There were 45 percent more independent musicians in 2014 than in 2001. (Self-­employed writers, by contrast, grew by 20 percent over that period.)

Of course, Baudelaire would have filed his tax forms as self-­employed, too; that doesn’t mean he wasn’t also destitute. Could the surge in musicians be accompanied by a parallel expansion in the number of broke musicians? The income data suggests that this just isn’t true. According to the O.E.S., songwriters and music directors saw their average income rise by nearly 60 percent since 1999. The census version of the story, which includes self-­employed musicians, is less stellar: In 2012, musical groups and artists reported only 25 percent more in revenue than they did in 2002, which is basically treading water when you factor in inflation. And yet collectively, the figures seem to suggest that music, the creative field that has been most threatened by technological change, has become more profitable in the post-­Napster era — not for the music industry, of course, but for musicians themselves. Somehow the turbulence of the last 15 years seems to have created an economy in which more people than ever are writing and performing songs for a living.

And, as we saw in our report, it's not just in music that this is happening.

The O.E.S. numbers show that writers and actors each saw their income increase by about 50 percent, well above the national average. According to the Association of American Publishers, total revenues in the fiction and nonfiction book industry were up 17 percent from 2008 to 2014, following the introduction of the Kindle in late 2007. Global television revenues have been projected to grow by 24 percent from 2012 to 2017. For actors and directors and screenwriters, the explosion of long-form television narratives has created a huge number of job opportunities. (Economic Modeling Specialists International reports that the number of self-­employed actors has grown by 45 percent since 2001.) If you were a television actor looking for work on a multiseason drama or comedy in 2001, there were only a handful of potential employers: the big four networks and HBO and Showtime. Today there are Netflix, Amazon, AMC, Syfy, FX and many others.

Ah, but some will respond, all this new content is mostly crap. Well, there have been some attempts to look into that as well, which found the opposite. The flood of content has actually created more absolute great content (and, yes, more crappy content with it, but it's easy to ignore). In other words, more content across the spectrum, catering to more tastes. Johnson's research found something similar. He points out that basically everyone agrees that TV is better now than in the past, so there's little argument there. And he presents some evidence of great new films, though they're often financed through different and independent means, rather than the big Hollywood studios.

How about books? The one thing that he finds is that the data there is mixed, but he finds it noteworthy that while big chain bookstores have been falling by the wayside, indie bookstores are thriving.

This would be even more troubling if independent bookstores — traditional champions of the literary novel and thoughtful nonfiction — were on life support. But contrary to all expectations, these stores have been thriving. After hitting a low in 2007, decimated not only by the Internet but also by the rise of big-box chains like Borders and Barnes & Noble, indie bookstores have been growing at a steady clip, with their number up 35 percent (from 1,651 in 2009 to 2,227 in 2015); by many reports, 2014 was their most financially successful year in recent memory. Indie bookstores account for only about 10 percent of overall book sales, but they have a vastly disproportionate impact on the sale of the creative midlist books that are so vital to the health of the culture.

Johnson concludes the piece by looking at why this has happened, and why the fear mongering and doom and gloom of the RIAAs, MPAAs, Authors Guilds of the world, and the politicians who often repeat their talking points, were all completely wrong. He points out that while content may now be easier for users to access, that also means people get exposed to a lot more -- and there are many new ways to pay for it as well.

Also, perhaps more importantly, without the need to hand over so much money to gatekeepers (who like to take pretty much everything), the ability to go direct, and leverage various platforms, means that even if a particular artist is grossing less revenue, they're keeping more. And, further, as the tools of production have gotten cheaper, the upfront capital costs of creating, promoting and distributing content has dropped massively.

It's a worthwhile read, though it won't be surprising if you've read our reports. However, hopefully, with this appearing in the NY Times, it means this concept is finally going mainstream.

Filed Under: artists, business models, copyright, creativity, gatekeepers, independent artists, middlemen, sky is rising, steven johnson

Top RIAA Exec: There's No More Music In Africa And The Middle East Because They Need Stronger Copyright

from the this-is-satire,-no? dept

One of the most hilarious claims that we hear from internet trolls and the like concerning copyright and infringement is something along the lines of "but, without strong copyright, there would be no music!" It's a silly argument that has been debunked so frequently that we'd thought that it had been relegated to living on only among uninformed internet commenters, rather than actual industry execs. Enter Neil Turkewitz, one of the RIAA's top execs, who has been with the organization since 1987, and apparently still has the "Home Taping is Killing Music" phrase permanently imprinted on his brain, no matter how laughably false it is.

Turkewitz submitted a paper to the UN last year when it was investigating cultural rights, and that piece has now been republished by IP-Watch. It's a fairly astounding piece of ridiculousness that argues that there's no more cultural output in Africa or the Middle East... because they just don't have strong enough copyright laws.

It starts off with one of those classic lines about how, without copyright, no one makes music any more:

This has been the unfortunate reality in many developing countries where the lack of effective protection has eroded the willingness of private capital to fund production of original cultural works, contributing to economic stagnation and a dearth of cultural diversity. Simply put, when a society fails to reward its own creators, such creators will cease to exist, and “access” will be limited to foreign cultural materials.

Hmm. Except that's not what we've actually seen around the globe. In fact, with the rise of the internet and computers and the easy creation of works, people are finding that it's much easier (and cheaper) to create works and to get distribution. Pull up YouTube or log into Spotify and go searching for music from basically any country and see what you find. And compare that to what those of us who grew up in the era of the "record store" had to do to find world music (which was always all lumped together in a single tiny section in the back).

And, from there, he argues that the Middle East and Africa in particular are now silent. Because they just don't have strong enough copyright laws.

In many developing countries, the marketplace has been so dominated by piracy that there is no viable mechanism for private capital to be employed in facilitating the creation and distribution of creative works. In such instances-i.e. where copyright protection is not effectively introduced and maintained in law and in practice, the creative community is silenced. Communities throughout the globe-particularly in parts of the Middle East and Africa, bear silent witness to the devastating impact that lack of effective copyright protection has on the ability to create. Where there is no financial incentive for the creation and distribution of cultural materials, the distribution of local cultural materials ceases, much to the detriment of society, as well as to the putative creators who are foreclosed from adding their voices to the cultural mix.

Apparently, it does not occur to Turkewitz that there might be other factors that are impacting the markets for music in parts of those areas -- such as civil war, civil unrest, religious beliefs, turmoil, astounding levels of poverty and much, much more. But the idea that people in those regions are just sitting around not making music because of too weak copyright laws is simply laughable.

Besides, it's also not true. It wasn't that long ago that the NY Times was writing about the so-called "African Invasion" of African music coming to the US. Hell, it was just a few days ago that Ebony magazine noted that African music is the "new pop gold rush" which includes this paragraph:

But now that’s all transforming. Africa is now! The Internet has democratized music and threatened the major label’s cash cows. Radio and TV are no longer the only barriers to entry, and the borders are wide open. Our blinders are off, and we are exposed to music from all parts of the globe via the interwebs.

One thinks that, perhaps, Turkewitz's concern may be a lot more about the "threatened the major label's cash cows" line, than the supposed and mythical lack of music in Africa.

As for the Middle East, well, there's plenty of new music showing up there as well. Just a couple of months ago, the BBC covered the hip hop revolution in the Middle East, much of it inspired by the various revolutions in different countries. Turns out that, maybe, life events have a bigger impact on music than copyright law. Shocking, I know. The same BBC has also covered Iran's underground pop revolution and how youth across the arab world are "reveling" in a "pop revolution" in the region.

Oh, if you're interested in some Middle Eastern Pop or African pop music, click on those links. Or do a basic Google search, which will turn up a lot more. Apparently, Turkewitz couldn't be bothered (perhaps it's that whole "entertainment industry hates Google" thing).

So, uh, Turkewitz's argument is already just wrong.

Even more bizarre, he argues that this lack of copyright means that since no one in these countries is making music any more (totally false), it means that those markets are, instead, flooded with American music. You see, it's the lack of copyright protection that's leading to American cultural hegemony in those regions, and the good hearted Neil Turkewitz -- whose job is literally to advance the interests of the copyright holders behind American cultural hegemony -- now insists that he wants stronger copyright laws around the world not to advance the interests of the big labels (oh no!), but rather because he wants to protect local African and Middle Eastern music. Because he thinks whoever's reading this is an idiot.

Make no mistake — cultural hegemony flows not from the protection of intellectual property, but from its absence. We owe the world’s creators and societies a better deal, and effective copyright protection has well served the societies which have maintained such systems. We therefore urge policy makers around the globe to reject simplistic formulations of the public interest that are grounded only in considerations of access to creative works without considering the incentives for the production of creative works. We must ensure that policy makers ask themselves “access to what?” before adopting policies that endanger their own ability to foster creativity and innovation.

Now, we absolutely agree with the central claim that Turkewitz tries to pin his article on: that those who create culture need incentives to do so. But, as we've seen, there are all sorts of ways of doing that that don't require crazy extreme copyright that hinders freedom of expression and innovation at the same time. We see it all the time where new tools like crowdfunding and micropayments are making things possible. We see how the cost of production and distribution has made it so it's just easier for people to create and distribute music no matter what.

And, Turkewitz's claim that developing countries need stronger copyright for their local music just has no support in any historical context. Take, for example, the story we had a few years ago about the rise of a new genre of music in Brazil called "technobrega," which embraced sharing the music either on the internet or via passing around CDs -- often instigated by the artists themselves. That helped technobrega become a cultural phenomenon -- and the artists make money doing live shows. And there are tremendous parallels to the rise of Jamaican music, where an entire industry was created and built off of weak copyright laws and widespread sharing of music and reusing of riddims.

The argument that without copyright, regional and cultural music doesn't get created is simply laughable. The idea that we're somehow now in an era where American music is a "cultural hegemony" as opposed to a decade or two ago is similarly laughable. Turkewitz's basic premise doesn't even pass the most basic laugh test.

From there, we get the other silly old debunked RIAA talking point that "without strong copyright, there is no way to make money." I'd really thought that the RIAA had retired this one, but apparently not:

An effective and functional copyright environment is not a panacea; it does not on its own create global parity in the marketplace of ideas. But it does give individual creators a fighting chance, and an opportunity to compete. The ability to generate revenue from one’s creativity — to earn a living as a creator — is central to a society’s ability to foster cultural production. In its absence, dreams and creative lives perish. The moral and economic aspects of this equation are inseparable. We simply must ensure that all creators, regardless of their location, are able to enjoy the fundamental human right to choose the manner in which their creations are used as reflected in international law.

First of all, this is bullshit. Most creators do not earn a living as a creator. This has always been the case. Unless the RIAA is suddenly promising a basic income guarantee to anyone who can sing a few notes, it's never going to be true either. But, some artists do earn a living -- and it's rarely because of copyright. Sure, sometimes it is, and it may frequently be one important component, but arguing that it is the only lever to pull and that without strong copyright laws creativity goes away is laughable. Lots of artists make more from other ways: live performances, merchandise, crowdfunding and more.

And then Turkewitz gets even more ridiculous:

It does not serve the aspirations of developing societies to return to a system in which the voices of the people serve the whims of the private elite, or worse, to allow governments to be the sole determining body in the matter of cultural works.

A "private elite"? Really? Such as letting a tiny group of top execs at the three major labels choose what songs will be the hit records of the year, and then pay(ola) their way through millions to make sure that those are the songs that everyone listens to? Those kinds of "whims of the private elite"? Because, you know, that's kinda been a big part of the problem with music for a while.

Yet, in the last few years, we've gotten way past that thanks to the internet -- and, for many -- thanks to file sharing.

By permitting creative genius to be fueled by market forces, we unleash the cultural power and potential of the diversity of individuals, freeing creative impulses from the tyranny of centralized controls and making creative works accessible to the public at large. While copyright may be inadequate on its own in creating fair market conditions, it remains by far the most powerful tool for fostering creativity and democratizing culture itself.

Based on what? First of all, copyright is the opposite of "market forces." It's a government granted monopoly to stop market forces from working. Copyright is what has allowed "centralized control" over the recording industry from the likes of the RIAA itself. It's hilarious that a guy who has worked at the RIAA for almost three decades is actually trying to argue that there needs to be stronger global copyright to stop "the tyranny of centralized control."

Yes, it appears the king would like to raise taxes to better help the peasants avoid the tyranny of government coercion.

Besides, we're actually seeing exactly what happens without the "tyranny" of control under the old copyright system, and the true "marketplace" thanks to the various innovations that the RIAA has fought hard to kill, from YouTube to MP3 players to streaming music and more. And it's allowing artists without major label connections to outperform the biggest names from the major labels at times. Perhaps we need less focus on the old system, and more of these new innovations that appear to be giving power back to the public to determine what they really like, rather than the power of Universal Music's payola budget.

Copyright protection, while it may sometimes serve the interests of multinational corporations, is the mechanism that permits individuals to devote their lives to the creation of original materials;

It may be one mechanism, but it is hardly the only such mechanism, and what we're finding more and more is that it is a rather poor mechanism for that -- though it has been a fantastic mechanism for helping the RIAA labels screw over artists. But I digress...

If we want to foster cultural diversity (and I assume we all do), and want to ensure that diverse content is available to be accessed (and I assume we all do), then we must be more vigilant in ensuring the effective global protection of copyright.

Again, copyright may be a tool that works for some in some cases, but this ridiculous insistence that it is the only such tool and that it is the core thing that must be protected -- at a time when it's so obvious that it also creates tremendous problems elsewhere and when many other solutions to funding artists are coming on the scene -- just makes Turkewitz look incredibly out of touch.

Ms. Shaver writes that “copyright protection inflates the price of cultural works.” But again, that is completely wrong. Copyright protection gives economic value to cultural works, and sustains creators. It doesn’t inflate price – it recognizes a property interest so that the creator can determine the conditions of subsequent use.

Of course copyright inflates the price of cultural works. That's its sole purpose. That's what monopolies do. To argue against that is ridiculous. An intellectually honest argument Turkewitz could make would admit that, yes, copyright inflates the price, but in doing so creates new incentives for the original creation of the work. Then we can debate whether or not that's true. Instead, he makes the completely ridiculous assertion that copyright doesn't inflate the price at all. Of course it does.

And, no, copyright does not "give economic value to cultural works." Turkewitz, like so many others, is confusing price and value. Something may have tremendous economic value, even if it's free. This blog is free. Yet it has economic value in generating other kinds of revenue. Turkewitz's article is free. Yet I'd imagine he thinks it has economic value in (he hopes) convincing policy makers to bow down to the RIAA's distorted view of copyright law.

While I'm sure that some will argue that this is just the RIAA spouting nonsense as usual, it's important to note that Turkewitz isn't just sending a random note to the UN with this nonsense. He's also the Vice Chairman of ITAC-15, which is the USTR's "advisory committee" for intellectual property in trade agreements. All that crap we've seen in the TPP and TTIP about intellectual property -- that's partly Turkewitz's doing. And he is either totally ignorant of what's happening in the market (unlikely) or he's willing to make completely outlandishly bogus statements in order to push the RIAA's preferred course of action, at the expense of all of the innovation and cultural development we've seen in recent years.

Filed Under: africa, business models, copyright, creativity, culture, middle east, music, neil turkewitz, sharing
Companies: riaa

Infringing Game A Tabletop Award Nominee Before Disqualification

from the lost-art dept

It's the oldest argument when it comes to copyright: what promotes creative works more, strict protections for creators or liberal abilities to create and adapt associated works? These arguments are often made as a matter of theory, with some creators saying copyright protections allow for investment in creating art, whereas those who might create other things based off of those creations (fan-art/films/fiction, mashup artists, samplers, etc.) would tell you about all the art we've lost due to over-reaching protections.

Well, now we have a case where the question isn't one of theory, but of reality. The Gen Con EN World RPG Awards are given out for various categories to the best tabletop games every year. This year, one game was nominated in three separate categories. A game that was clearly a copyright infringer.

Today, one of the few awards in tabletop roleplaying games announced its 2015 award nominees. There are some really good games that are in the running for ENnies awards, but as I went over the list a different story emerged. The judges at the ENnies awards managed to not once, not twice but three times nominate Mass Effect: The Fate RPG. It is up for Best Electronic Book, Best Free Product and Product of The Year.

The game was made without the permission of Electronic Arts or Bioware, who developed the original Mass Effect games. The creator of the game, Don Mappin, is well known in tabletop circles and has published games with mainstream publishers in the past. For this game, which he released for free and which has been downloaded heavily, he simply published it himself. He also contends that he hasn't violated the rules of the contest, which apparently didn't mention requiring the games to be licensed. Instead, they only required the games to be good.

The work is a labor of love and it has been downloaded extensively since its release last year. I am very public and open that it is an unlicensed product, made available free of charge and that no remuneration is to be made from its distribution. The Fate core OGL is adhered to (to the best of my ability) as well as content from Brennan Taylor of Galileo Games and their Bulldogs! product, with permission.

I don't believe that I have violated any aspect of the rules for the ENnies and would hope that my work could be considered. Nor do I believe that I am "stealing" (my words) a slot for Best Product if, in the eyes of the judges, my work was, in fact, superior enough to merit inclusion over other publishers. Conspiracy theories and such aside, I am simply an industry veteran choosing to give back to the hobby I love. I hope you'll consider my work--and its merits--in that vein.

Now, a work freely given away that is as transformative as this could be a test for whether a copyright claim would be valid, but let's not bother with that. In the current climate of copyright in our legal system, it would probably be found to be infringing, and it likely is infringing on trademark grounds as well. Fine, we'll stipulate that. But let's also consider the fact that the game has since been removed from the contest nominations and the whole backlash has caused Mapping to pull the game off his site for download.

In light of the forthcoming announcement of disqualification, I will also be removing the files of my own accord. My thanks to the personnel of ENWorld and the ENnies for their assistance.

And, just like that, poof, the tabletop game is gone. Save for anyone able to get a copy before this whole episode started, it might as well never have existed. An award-nominee of a game, just gone. A labor of love, as the fan-creator puts it, a labor that was plenty creative in its own rights, into the ether. One wonders how many games never even get to this point before dying on the vine, shriveled up by an over-protective copyright system that, at least some of the time, hinders the very creativity it purports to promote.

Filed Under: boardgames, creativity, don mappin, ennies, gen gon, infringement, mass effect, rpg awards, tabletop games
Companies: bioware, electronic arts