Is there any cooler musician than Elvis Costello? Honestly, one of the more annoying things about writing about the ins-and-outs of copyright law and creativity is realizing just how many of my artistic (music, filmmaking, writing, etc.) heroes turns out to have absolutely dreadful opinions about creativity and inspiration, often ignoring how they got to where they got, and instead focusing on pulling up the ladder behind them and squeezing as much cash as possible out of others. So I'm always concerned when I learn about musician I like opining on these issues -- especially over the last few years. You had the Marvin Gaye Estate cash in on a pop song that didn't copy any Gaye song, but just had a similar "feel." And that opened the doors to a whole bunch of similar lawsuits of aging rockers (or their estates) demanding money from newer artists.
But Elvis Costello apparently has decided to take the much more sane, much more creative, and much more supportive route. A few different artists have started whining about a new album by Olivia Rodrigo. It started with Courtney Love complaining about the promo artwork on Rodrigo's new album being somewhat similar to Hole's album "Live Through This."
Olivia Rodrigo’s new promo pics are giving me very much Hole’s Live Through This album cover and I’m here for it!<3 pic.twitter.com/ER33Co9N2A
To be fair, Love didn't get that upset, admitting "It happens all the time to me," but she did call it "stealing" and saying that "not asking permission is rude" and "bad form." I don't think it's any of those things. At most it seems like an homage. It might also be kind of an accident. The two sets of images are not really that close. And this is disappointing to see from Love, who twenty years ago famously wrote up one of the greatest screeds mocking record labels and the RIAA for their reaction to the internet.
But, then someone noticed that Rodrigo's music also seemed to have homages in it. Billy Edwards said that her song "Brutal" seemed to be a "direct lift" from Elvis Costello's "Pump it Up." Listening to one after the other, you can definitely hear the similarities in the guitar riff, even though the songs themselves are extremely different.
But... rather than freak out about it, Elvis Costello stepped in on Twitter to make it clear that (1) he's fine with it, and (2) this is how music works. Indeed, he points out that it's how he wrote some of his own songs as well -- "you take the broken pieces of another thrill and make a brand new toy."
This is fine by me, Billy. It’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy. That’s what I did. #subterreaneanhomesickblues#toomuchmonkeybusiness
In fact, with the hashtags on that tweet, Costello notes that Pump It Up is itself a kind of remix of Bob Dylan's famous Subterranean Homesick Blues, which itself was inspired by Chuck Berry's Too Much Monkey Business.
As Costello rightly notes, this is how music works. Artists build on ideas of what's come before. It's homage, and how creativity works. You take ideas and inspiration from those who came before, and then you make your own thing out of it. And, in the long run, everyone does benefit. New fans learn the new songs -- and as they get deeper into it it also helps them rediscover the pieces on which it was built as well. Only foolish people think that creativity springs forth disconnected from all else -- or that every single inspiration must get a piece of whatever successful ideas newer artists come up with.
So, kudos to Elvis Costello for being quite clear in recognizing the nature of creativity, inspiration, and homage.
Last year we wrote about what we called the "dumbest gotcha story of the week," involving the music annotation site Genius claiming that Google had "stolen" its lyrics. The only interesting thing about the story is that Genius had tried to effectively watermark its version of the lyrics by using some smart apostrophes and some regular apostrophes. However, as we noted, the evidence that Google "copied" Genius just wasn't supported by the facts -- and even if they had copied Genius, it's unclear how that would violate any law. You can read that post for more details, but the simple fact is that a bunch of sites all license lyrics and have permission for them -- and many use a third party such as LyricFind to supply the lyrics. But how those lyrics are created is... however possible. Even as sites "license" lyrics from publishing companies, those companies themselves don't have their own lyrics. So basically lyric databases are created however possible -- including having people jot down what they think lyrics are... or by copying other sites that are doing the same. And there's nothing illegal about any of that.
And yet, for reasons that are beyond me, last December, Genius sued both Google and LyricFind over this. As we noted at the time, it was one of the dumbest lawsuits we'd seen in a while, and it would easily fail. And that is exactly what has happened. The lawsuit was removed from NY state court to federal court, and while Genius tried to send it back, the judge not only rejected that request, but she dismissed the entire lawsuit for failure to state a claim (that's legal talk for "wtf are you even suing over, that doesn't violate any law, go home.")
There were a bunch of issues that Genius tried to raise, but all of them were pretend issues. As we noted all along, Genius has no copyright interest in the lyrics (indeed, it has to license them too -- and, amusingly, in its early days, songwriters accused Genius of being a "pirate" site for not licensing those lyrics...). And so Genius tried to make a bunch of claims without arguing any copyright interest, but these were all really attempted copyright claims in disguise, and the court rightly pointed out that copyright pre-empts all of them.
Breach of contract? Nah, copyright pre-empt's that:
Plaintiff’s breach of contract claims are nothing more than claims seeking to enforce the copyright owners’ exclusive rights to protection from unauthorized reproduction of the lyrics and are therefore preempted. The parties agree that Plaintiff is not the owner of the copyrights to any of the lyrics it transcribes, and Plaintiff concedes that it licenses lyrics from the copyright owners.... Although Plaintiff describes the rights it seeks to enforce as “broader and different than the exclusive right existing under the Copyright Act,” based on “the substantial investment of time and labor by [Plaintiff] in a competitive market,” ... and asserts breach of contract claims based on alleged violations of Plaintiff’s Terms of Service, Plaintiff’s own ability to transcribe and display the lyrics on its website arises from the licensing rights Plaintiff has in the lyrics....
[....]
Plaintiff’s argument is, in essence, that it has created a derivative work of the original lyrics in applying its own labor and resources to transcribe the lyrics, and thus, retains some ownership over and has rights in the transcriptions distinct from the exclusive rights of the copyright owners.... This argument is consistent with the treatment of derivative works under federal copyright law....
Plaintiff likely makes this argument without explicitly referring to the lyrics transcriptions as derivative works because the case law is clear that only the original copyright owner has exclusive rights to authorize derivative works....
Even accepting the argument that Plaintiff has added a separate and distinct value to the lyrics by transcribing them such that the lyrics are essentially derivative works, because Plaintiff does not allege that it received an assignment of the copyright owners’ rights in the lyrics displayed on its website, Plaintiff’s claim is preempted by the Copyright Act because, at its core, it is a claim that Defendants created an unauthorized reproduction of Plaintiff’s derivative work, which is itself conduct that violates an exclusive right of the copyright owner under federal copyright law.
Unjust enrichment? Yup. Pre-empted by copyright law. In that case, Genius had pointed to one case that showed an unjust enrichment claim avoided pre-emption, but the court points out that that case was quite different.
While the court in CVD Equipment Corp. listed deception as an extra element sufficient to avoid preemption, the Court finds, based both on the facts in that case and the Second Circuit decisions cited in support, that the decision in CVD Equipment Corp. was based on the defendant’s alleged abuse of a fiduciary relationship, which is not present in this case. The factual allegations in CVD Equipment Corp., described above, clearly supported a claim that the defendants had unjustly enriched themselves by abusing a fiduciary relationship.... Moreover, the two Second Circuit cases the district court relied on in making its ruling further support the conclusion that the basis for the court’s holding was not that the plaintiffs had alleged “deception,” but rather, that they had alleged the abuse of fiduciary relationships. In Kregos, cited by the court in CVD Equipment Corp., in finding that the plaintiff’s unfair competition claim was preempted, the Second Circuit stated that “unfair-competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets have been held to satisfy the extra-element test and avoid § 301 preclusion.” ... Similarly, in Computer Associates International, Inc., also cited by the court in CVD Equipment Corp., the Second Circuit noted that the “state law rights that . . . satisfy the extra element test, and thus are not preempted by section 301 . . . include unfair competition claims based upon breaches of confidential relationships, breaches of fiduciary duties and trade secrets.”... In contrast, in this case, Plaintiff has not alleged that Defendants abused a confidential or fiduciary relationship.
Unfair competition? Sorry, nope. Pre-empted by copyright.
Plaintiff’s unfair competition claims are preempted by the Copyright Act. Plaintiff alleges that Defendants “misappropriated content from [Plaintiff’s] website,”... in “an unjustifiable attempt to profit from [Plaintiff’s] expenditure of time, labor and talent in maintaining its service,”... Plaintiff has not alleged that Defendants breached any fiduciary duty or confidential relationship, or that Defendants misappropriated Plaintiff’s trade secrets. Instead, Plaintiff’s claims are precisely the type of misappropriation claims that courts have consistently held are preempted by the Copyright Act....
Plaintiff’s claims are essentially “reverse passing off” claims, as Plaintiff alleges that Defendants copied Plaintiff’s work product — song lyrics displayed on its website — and attempted to pass them off as either, in LyricFind’s case, its own work product or, in Google’s case, either its own work product or work product it was licensed to display.... Unfair competition claims involving allegations of reverse passing off are preempted by the Copyright Act.
How about "bad faith" claims under NY state law? Here, we see the zombie of the never ending SCO v. IBM case, which Genius sought to use in support. But, there's a problem. That case was in the 10th Circuit. This case is in the 2nd.
The Tenth Circuit’s decision in SCO Group, Inc. is directly contradicted by caselaw in this Circuit, discussed above, finding that New York unfair competition claims alleging misappropriation of copyrightable works are preempted by the Copyright Act. Regardless of how the Tenth Circuit interpreted the “bad faith” element of New York unfair competition claims, in this Circuit, “bad faith” on its own is not sufficient to avoid preemption — if it were, unfair competition claims under New York law would never be preempted.
Unfairness under California law? Pre-empted. Easily.
The Second Circuit has held that “[n]o matter how ‘unfair’” a defendant’s alleged conduct is, “such unfairness alone is immaterial to a determination whether a cause of action has been preempted by the Copyright Act.”
Deceptive, unethical, and immoral conduct? By this point you can feel the judge getting bored of having to repeat herself.
Courts in this Circuit have found that deception is not an extra element that saves an unfair competition claim from preemption.
And thus, the case is tossed completely.
Given that the Court finds that all of Plaintiff’s state law claims are preempted by the Copyright Act, and Plaintiff has not asserted any federal law claims, the Court dismisses the Complaint for failure to state a claim.
Don't try to pretend that you have a pseudo copyright in content you have no copyright rights over.
The standard operating procedure for most companies is to freak out about copycat products, and usually to use intellectual property laws to fight them tooth and nail — even at the expense of other aspects of the business that could use a lot more attention. Today, we're talking to the founder of a company that takes a more nuanced, less panicked approach: Dan Vinson is the creator of Monkii Bars, which launched with a Kickstarter that embraced and celebrated people making DIY copies, and he joins us this week to discuss a better way to think about copycats, and the advantages it brings.
Almost five years ago, we warned that years of copyright maximalists brainwashing the public about ever expansive copyright and the need for everything to be "owned" had resulted in the crazy Blurred Lines decision that said that merely being inspired by another artist to make a song that has a similar feel, even if it doesn't copy any actual part of the music, was infringing. We warned that this would lead to bad things -- and it has.
Over the last few years, we've been detailing story after story of similar cases being filed. It's become so common that we don't even bother to write about most of the cases. As we've said, though, this really is the industry reaping what they've sowed. It's gotten so crazy that even the RIAA (yes, that RIAA) has felt the need to tell courts that maybe their interpretation of copyright has gone too far in the direction of over-protecting copyright holders.
It's now become such a fact of life that the NY Times has a giant article on how copyright is basically eating pop music these days. It describes a bunch of these cases, and notes that merely "being influenced" makes you liable for copyright infringement, and how that's causing problems for the very concept of pop music:
That is, to put it plainly, bad news for pop stars, and the producers and songwriters who help them craft hits. They are now marks for frivolous litigation premised upon nebulous assertions as well as a complete and willful ignorance of how pop music is actually made.
Occasionally, pop innovates in a hard stylistic jolt, or an outlier comes to rapid prominence (see: Lil Nas X), but more often, it moves as a kind of unconscious collective. An evolutionary step is rarely the product of one person working in isolation; it is one brick added atop hundreds of others.
Originality is a con: Pop music history is the history of near overlap. Ideas rarely emerge in complete isolation. In studios around the world, performers, producers and songwriters are all trying to innovate just one step beyond where music currently is, working from the same component parts. It shouldn’t be a surprise when some of what they come up with sounds similar — and also like what came before.
The whole article is great, including this fantastic line:
It fails to make a distinction between theft and echo, or worse, presumes that all echo is theft. It ignores that the long continuum of pop revisits sonic approaches, melodies, beats and chord progressions time and again. It demands that each song be wholly distinct from everything that preceded it, an absurd and ultimately unenforceable dictate.
All echo is theft. That's definitely the argument that many copyright system supporters have made for years. And now it's coming back to bite them.
But here's the most frustrating part of all of this: even with that one RIAA filing admitting that sometimes copyright could go too far in over-protecting rightsholders, it's not stopping them or other copyright maximalist organizations from still pushing for more expansive, more draconian, more protective copyright reform. Get ready for it, because it's coming. There are efforts to import the EU's dreadful copyright directive, as well as a very strongly backed effort to get rid of the DMCA's safe harbors. And this is coming at a time when actual revenues for artists have continued to shoot skyward.
However, as with so much about copyright, this is all about third parties -- not the artists and creators themselves -- looking for their own monopoly rents. They're looking to figure out how to get a piece of the pie for literally doing absolutely nothing. But if something becomes successful, suddenly they all want a cut, and copyright maximalism has handed them the tools to get exactly that. And, as a result, pop music is under ongoing litigation assault. The labels are making money. The lawyers are making money... and, according to a new Rolling Stone article, the insurance companies are making money:
While some record labels may have the budget to hire on-call musicologists who vet new releases for potential copyright claims, smaller players who can’t afford that luxury are turning toward a tried-and-true form of protection: insurance. Lucas Keller — the founder of music management company Milk and Honey, which represents writers and producers who’ve worked with everyone from Alessia Cara and Carrie Underwood to 5 Seconds of Summer and Muse — recently began encouraging all his songwriter clients to purchase errors-and-omissions insurance, which protects creative professionals from legal challenges to their intellectual property. “We all feel like the system has failed us,” Keller says. “There are a lot of aggressive lawyers filing lawsuits and going ham on people.” (He’s particularly critical of publishers whose rosters are heavier on older catalogs than new acts: “Heritage publishers who aren’t making a lot of money are coming out of the woodwork and saying, ‘We’re going to take a piece of your contemporary hit.’ ”)
Under E&O policies, insurance companies can cover several million dollars of an artist’s costs if they lose a copyright lawsuit. Joe Charles, senior vice president at insurance provider Alliant Insurance Services, says that as many as half of his personal A-list music clients — a roster of stars who already pay for tour insurance and other standard entertainment-industry policies — have recently shown interest in E&O coverage. “When a major claim is all over the press, we’ll get 10 to 20 calls from musicians asking how they can protect themselves and what it will cost,” Charles says.
Notice that all this is money that is not going to the actual artists. The entire premise of the Rolling Stone article is basically that having a hit song is simply too expensive these days, because of bullshit copyright lawsuits that actually have a chance because copyright law has gone insane. Something is clearly broken here, and supporters of the copyright system need to admit that maybe they've gone too far.
Oracle has waged a many years long war (now heading to the Supreme Court) arguing that copying APIs is copyright infringement. Many people who actually understand what an API is, have explained why that is absolutely ridiculous, but tons of non-technical (always non-technical) people keep insisting that an API is just as copyrightable as software. Indeed, they often insist that an API is no different than software itself. This includes Oracle's main lawyer on the case, Annette Hurst, who just a few months ago insisted that APIs were executable code (they are not).
However, Charles Duan, over at the R Street Institute (disclosure: we've partnered with R Street on a variety of projects over the years) has written up quite an incredible article highlighting that Oracle, of all companies, appears to have copied Amazon's S3 API. Lots of companies have. But that's because copying APIs is done all the freaking time in software, because it's how you make compatible systems:
Consider Amazon’s popular data storage platform, S3. To allow programmers to store and retrieve files on S3, Amazon built a comprehensive, detailed API for interacting with the service. To get a list of stored files, for example, one sends the command name GET with the folder name as a grammatical object, along with cryptically tagged information such as encoding-type, continuation-token, and x-amz-date. Software must use these exact, cryptic terms and a bevy of others to work with Amazon S3.
Unsurprisingly, competitors have sprung up to Amazon’s market-leading cloud services. To convince programmers to switch away from Amazon’s offerings, those competitors reimplement S3’s API. In doing so, the competitors must mimic the command names, parameter tags, “x-amz” phrasing, grammatical structure, and overall organization of the S3 API—in other words, exactly the kind of thing Oracle argues is protected by copyright.
To be sure, a competitor may use a different programming language than Amazon did so the internal software code might not look like verbatim copying. But implementing an API in another computer language is simply an act of translation, and translating a copyrighted work into another language is specifically known to be a copyright infringement.
Among the companies offering a copy of Amazon's S3 API is Oracle itself. In order to be compatible with S3, Oracle’s “Amazon S3 Compatibility API” copies numerous elements of Amazon’s API, down to the x-amz tags.
I can't wait to see Annette Hurst's analysis of how Oracle is infringing on Amazon's copyright...
Of course, Oracle, in its typical Oracle fashion, insists that this case is different. It claims that it's okay, because of the Apache 2.0 license that Amazon uses. Except that's not right. Amazon's SDK (Software Development Kit) is licensed under Apache, but the API is not. And, as such, it appears to undercut the key point that Hurst is arguing regarding Oracle's Java API in the Google case:
However, the Amazon SDK is code that uses the S3 API, not code that implements it—the difference between a customer who orders hash browns and the Waffle House cook who interprets the orders. Code that uses an API will be organized completely differently from code that implements one; it may not even contain the whole API. And Oracle has for years argued that using an API is unrelated to reimplementation and not an infringement of copyright (or else every app developer using Java would infringe). Oracle can't simultaneously argue that API-using code does not embody copyrighted material from an API, and yet API-using code embodies all copyrights in the API necessary to give Oracle the right to reimplement S3.
Even if the Apache license does apply, Oracle doesn't appear to comply with the terms of the license. Section 4 of the Apache license requires notices and attribution statements attached to derivative works. Yet I find no attribution to Amazon or relevant mention of an Apache license on Oracle's documentation or anywhere on the site.
In short, Oracle is doing what lots of companies do regarding APIs all the time, and what every company (including itself) has always believed to be non-infringing, because an API is not code itself, but a set of instructions on how to interact with the code. It's only in this case where Oracle, jealous of Google's success with mobile (while its own attempts flopped miserably), wants to claim this is infringing.
It shouldn't surprise anyone that Oracle is being hypocritical here. But it should concern everyone that if Oracle's interpretation of the law is upheld by the Supreme Court that it will fundamentally damage the very way in much a ton of software -- including Oracle's own products -- are developed.
With all the recent talk of breaking up big tech in the news again lately, one of the most common refrains is that the big internet companies (mainly Google, Facebook, Amazon, and Apple) are so big and so dominant that no upstart competitor can possibly succeed against them, in part because if they get too big, those giants will just "copy" the competitor and put them out of business. This narrative has gotten a lot of support from the story of Facebook effectively copying SnapChat a few years back. But, it's important to note just how rare this actually is. The history of tech innovation is littered with disrupted giants which often tried, but utterly failed, to "copy" the upstart.
For many, many years, we've talked about this. Part of the problem is that "copying" features or or services is what we've referred to as cargo cult copying, where you're really just copying the tacit, visible features, but without a deeper understanding of why people really use a tool or service. It's why Microsoft failed in trying to just copy Intuit out of business. It's why Facebook failed when it tried to just copy GroupOn (back when people thought GroupOn was a disruptor to Facebook's local ads). It's why smaller companies frequently out innovate giant, dominant incumbents. Part of it is that the incumbents don't notice the innovation until it's too late, but more often because they don't really understand why an innovation is so disruptive -- often because it attacks their position in a tangential way. That wasn't the case with SnapChat and Facebook, where the competition was more direct and more core to Facebook's business.
But the difficulty in "just copying" is driven home by a really great recent article by Josh Constine at TechCrunch, talking about how Mark Zuckerberg totally misunderstands TikTok and why it's a threat to Facebook. TikTok, of course, is a giant in its own right (part of Chinese internet giant ByteDance, which creates its own problems). However, in recently leaked recordings of Mark Zuckerberg addressing Facebook employees' questions, he notes that TikTok is a threat, and how they're trying to copy its service in markets where TikTok doesn't have a hold yet.
Are we concerned about TikTok’s growing cultural clout among teens and Gen Z, and what is our plan of attack?
MZ: So yeah. I mean, TikTok is doing well. One of the things that’s especially notable about TikTok is, for a while, the internet landscape was kind of a bunch of internet companies that were primarily American companies. And then there was this parallel universe of Chinese companies that pretty much only were offering their services in China. And we had Tencent who was trying to spread some of their services into Southeast Asia. Alibaba has spread a bunch of their payment services to Southeast Asia. Broadly, in terms of global expansion, that had been pretty limited, and TikTok, which is built by this company Beijing ByteDance, is really the first consumer internet product built by one of the Chinese tech giants that is doing quite well around the world. It’s starting to do well in the US, especially with young folks. It’s growing really quickly in India. I think it’s past Instagram now in India in terms of scale. So yeah, it’s a very interesting phenomenon.
And the way that we kind of think about it is: it’s married short-form, immersive video with browse. So it’s almost like the Explore Tab that we have on Instagram, which is today primarily about feed posts and highlighting different feed posts. I kind of think about TikTok as if it were Explore for stories, and that were the whole app. And then you had creators who were specifically working on making that stuff. So we have a number of approaches that we’re going to take towards this, and we have a product called Lasso that’s a standalone app that we’re working on, trying to get product-market fit in countries like Mexico, is I think one of the first initial ones. We’re trying to first see if we can get it to work in countries where TikTok is not already big before we go and compete with TikTok in countries where they are big.
We’re taking a number of approaches with Instagram, including making it so that Explore is more focused on stories, which is increasingly becoming the primary way that people consume content on Instagram, as well as a couple of other things there. But yeah, I think that it’s not only one of the more interesting new phenomena and products that are growing. But in terms of the geopolitical implications of what they’re doing, I think it is quite interesting. I think we have time to learn and understand and get ahead of the trend. It is growing, but they’re spending a huge amount of money promoting it. What we’ve found is that their retention is actually not that strong after they stop advertising. So the space is still fairly nascent, and there’s time for us to kind of figure out what we want to do here. But I think this is a real thing. It’s good.
However, as Constine points out, this shows that Zuckerberg totally misunderstands why TikTok is so successful.
TikTok isn’t about you or what you’re doing. It’s about entertaining your audience. It’s not spontaneous chronicling of your real life. It’s about inventing characters, dressing up as someone else and acting out jokes. It’s not about privacy and friends, but strutting on the world stage. And it’s not about originality — the heart of Instagram. TikTok is about remixing culture — taking the audio from someone else’s clip and reimagining the gag in a new context by layering it atop a video you record.
That makes TikTok distinct enough that it will be very difficult to shoehorn into Instagram or Facebook, even if they add the remixing functionality. Most videos on those apps aren’t designed to be templates for memes like TikToks are. Insta and Facebook’s social graphs are rooted in friendship and augmented by the beautiful and famous, but don’t encompass the new wave of amateur performers TikTok elevates. And since each post to the app becomes fodder for someone else’s creativity, a competitor starting from scratch doesn’t offer much to remix.
That means a TikTok clone would have to be somewhat buried in Instagram or Facebook, rebuild a new social graph and retrain users’ understanding of these apps’ purpose…at the risk of distracting from their core use cases. T
This is the same exact story that we've told a bunch of times in the past (including a few of those links above). Even if Zuckerberg recognizes (correctly) that TikTok represents a competitive threat, the company can't just copy its way out of that competition. Because TikTok's entire approach and audience is different, and the core reasons why people use TikTok are fundamentally different than the reasons they use Facebook or Instagram even if they look similar on the surface. As Constine astutely notes, Facebook could easily offer the same features as TikTok, but that wouldn't lead to usage.
Again, that would just be cargo cult copying: copying the visible parts, without being able to understand or effectively copy the real reasons why TikTok is so successful, which is the cultural, community aspects of what makes it such a big deal. This is not a unique story. It's what happens time and time again. Cargo cult copying is easy. It's easy to see certain features or a certain app and make a clone. But that won't make people use it. This same issue was explored quite well by Ben Thompson in a recent Exponent podcast, in which he notes that Zuckerberg, for all his success, still doesn't seem to fundamentally get what makes Facebook, Facebook -- and this could lead to significant problems down the road.
Facebook is large and powerful -- there is no doubt about that. But the idea that it can simply copy any upstart competitor and put them out of business is a premise that is not supported by history at all.
I know that tons of people are talking antitrust about the big internet companies, and Amazon is a prime target these days. So, perhaps I shouldn't have been surprised last week when there was a minor freakout, starting on Twitter, when Jeff Morris Jr., who works in the internet industry, tweeted out an angry tweet about Amazon supposedly copying Allbirds' famous shoes:
Amazon is now straight copying Allbirds.
We have reached "peak cloning" in Silicon Valley.
There are no rules anymore - if you build a product that works, Amazon or Facebook will copy it.
If you've somehow missed it, over the last five years or so, Allbirds merino wool shoes have become somewhat ubiquitous as the "cool shoe" to wear among various folks -- including the 44th President of the United States. Admittedly, they're nice shoes (and crazy comfortable). And, with all such things that become a fashion fad, copycats have quickly followed. Over the last few years there have been a ton of Allbirds-like shoes hitting the market. As I type this, I'm wearing shoes from Awel, that lots of people mistake for Allbirds, because they're... pretty damn similar. But there are many, many other similar shoes out there.
Jeff's tweet went viral, and once that happened, the tech press started to pick up on it. Business Insider wrote an article about it, as did Quartz, The Verge and Engadget, with most of them framing it as "evil" Amazon attacking poor little Allbirds. The Quartz article by Michelle Cheng is the most ridiculous of the bunch, with the following title: "Amazon’s Allbirds clone shows its relentless steamrolling of brands." Without proof, the article suggests that Amazon is using its sales data power to step in with its own clone shoe to undermine competition.
But... that leaves out an awful lot. Including the fact that there are tons of other Allbirds clones out there, and if you search on Amazon for "Allbirds" you actually get a bunch of other clones, and not even the Amazon one. If Amazon were truly nefariously targeting Allbirds and using its powerful data to do so, wouldn't you expect that a search for "Allbirds" on its own site would turn up their particular shoes? Nope. It turns up other ones from lots of other shoe companies, including New Balance, Under Armour, Urban Fox, Adidas, Dr. Scholl's, Keezmz, LeMouton, and lots of others.
So, it may be a fun narrative that Amazon is "targeting" Allbirds and out to crush the shoe company by offering a similar shoe in a style that has become immensely popular from dozens of shoe companies over the last five years, but it's difficult to see how that narrative actually makes sense. Indeed, the story doesn't even hold together on its own. Part of the reason why Allbirds is so popular is because of the materials and the sustainable way in which the company tries to make its shoes. The Amazon clone that has everyone up in arms isn't even all wool like Allbirds' flagship shoe is -- it's only 56% wool (and it's not even clear if it's merino wool at that).
Allbirds has successfully been beating off most of the competition not because it's the only one who can make wool shoes, but because of the overall story and framing of Allbirds itself. People are supporting the company because of the specific product it makes and the company's own reputation. It's not like most Allbirds customers are going to rush to buy Amazon's shoe instead, because even if it looks similar, it doesn't have the reputation that Allbirds has.
And, of course, all of this ignores that copying is how innovation happens. I mean, there has to be some irony in people complaining about Amazon's supposed "monopoly power" at the very same time they're arguing that Allbirds should have a monopoly on wool runners. For years, we've pointed out that copying is standard in the fashion industry, where there is limited protections from copyrights and the like -- and that's actually helped the fashion industry be more innovative, and enabled much more competition, especially from smaller firms, because many start out copying the hot fashions before being able to introduce more original brands.
Now, there might be an argument somewhere that if Amazon were deliberately using its power as a store to wipe out competitors, or to unfairly advantage its own products, that you could show "harm" from the company abusing its dominant position. But producing an inferior shoe in an incredibly popular style -- one that dozens of companies are now producing shoes in -- and then failing to heavily promote that shoe directly on its own site... doesn't seem like it's actually harming anyone. Other than, perhaps, the ability of some tech journalists to keep things in perspective.
Over the years we've expressed some concerns about the NonCommercial license option from Creative Commons. Even as we're incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers -- to the point that some have argued that it actually harmed CC's brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.
To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you're using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don't make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?
Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC's BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it's "commercial" and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.
In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.
That case has now been appealed to the 9th Circuit (who, as we've noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.
Creative Commons appreciates the valuable contributions to the
development of open educational resources made by Great Minds, along with its
use of a standard CC public license to enable broad reuse of the materials it
produces. However, its interpretation of the Creative Commons license at issue in
this lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuit
correctly determined in Great Minds’ prior suit against another copy shop, FedEx
Office, the license authorizes a bona fide non-commercial user to discharge her
licensed rights by directing a third party like Office Depot to make copies at her
instruction. Creative Commons welcomes and respectfully seeks a similar holding
from this Court:
Under the Creative Commons “NonCommercial” license
at issue, a bona fide non-commercial user may engage
contractors to exercise the non-commercial user’s own
licensed rights on behalf and at the direction of the noncommercial
user, irrespective of whether the contractor is
itself non-commercial actor.
Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:
The CC BY-NC-SA 4.0 license fully authorizes the conduct that Great
Minds contends on appeal is unlawful. The only licensee here is the school
district. Under the terms of the license and prevailing principles of law, a school
district may permissibly use Office Depot as a means by which the school district
exercises its own licensed rights. The license does not restrict the school district to
using only its own employees to exercise those rights; it allows the school district
to engage anyone—employees and non-employee contractors alike—to do so. To
establish a rule that denies a licensee the ability to use non-employee actors to
exercise the rights it is lawfully entitled to exercise would contravene the plain
language of the license and established precedent.
To be sure, Office Depot could not on its own initiative make copies of
Great Minds’ curricular materials and sell them for a profit. In that scenario,
Office Depot would not be acting at the direction of a bona fide licensee, would
not be shielded by any bona fide licensee’s license, and thus would itself need to
rely on the terms and conditions of the CC BY-NC-SA 4.0—including limiting its
conduct to non-commercial purposes when reproducing the licensed work. But
that is not what is alleged here. Instead, on the facts as pleaded, the school district
has, under its license from Great Minds, engaged Office Depot to make copies and
paid Office Depot for the service, just as it could have paid an employee to make
the same copies at an Office Depot store. In that scenario, Office Depot is not a
licensee in its own right, and its own, independent purpose is analytically
irrelevant.
Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren't so limiting.
Fifty years ago – in September 1968 – the legendary rock band Led Zeppelin first performed together, kicking off a Scandinavian tour billed as the New Yardbirds.
The new, better name would come later that fall, while drummer John Bonham’s death in 1980 effectively ended their decade-defining reign. But to this day, the band retains the same iconic status it held back in the 1970s: It ranks as one of the best-selling music acts of all time and continues to shape the sounds of new and emerging groups young enough to be the band members’ grandchildren.
Yet, even after all this time – when every note, riff and growl of Zeppelin’s nine-album catalog has been pored over by fans, cover artists and musicologists – a dark paradox still lurks at the heart of its mystique. How can a band so slavishly derivative – and sometimes downright plagiaristic – be simultaneously considered so innovative and influential?
How, in other words, did it get to have its custard pie and eat it, too?
For anyone who quests after the holy grail of creative success, Led Zeppelin has achieved something mythical in stature: a place in the musical firmament, on its own terms, outside of the rules and without compromise.
When Led Zeppelin debuted its eponymous first album in 1969, there’s no question that it sounded new and exciting. My father, a baby boomer and dedicated Beatles fan, remembers his chagrin that year when his middle school math students threw over the Fab Four for Zeppelin, seemingly overnight. Even the stodgy New York Times, which decried the band’s “plastic sexual superficiality,” felt compelled, in the same article, to acknowledge its “enormously successful … electronically intense blending” of musical styles.
Yet, from the very beginning, the band was also dogged with accusations of musical pilfering, plagiarism and copyright infringement – often justifiably.
The band’s first album, “Led Zeppelin,” contained several songs that drew from earlier compositions, arrangements and recordings, sometimes with attribution and often without. It included two Willie Dixon songs, and the band credited both to the influential Chicago blues composer. But it didn’t credit Anne Bredon when it covered her song “Babe I’m Gonna Leave You.”
The hit “Dazed and Confused,” also from that first album, was originally attributed to Zeppelin guitarist Jimmy Page. However in 2010, songwriter Jake Holmes filed a lawsuit claiming that he’d written and recorded it in 1967. After the lawsuit was settled out of court, the song is now credited in the liner notes of re-releases as “inspired by” Holmes.
‘Dazed and Confused’ by Jake Holmes.
The band’s second album, “Led Zeppelin II,” picked up where the first left off. Following a series of lawsuits, the band agreed to list Dixon as a previously uncredited author on two of the tracks, including its first hit single, “Whole Lotta Love.” An additional lawsuit established that blues legend Chester “Howlin’ Wolf” Burnett was a previously uncredited author on another track called “The Lemon Song.”
Musical copyright infringement is notoriously challenging to establish in court, hence the settlements. But there’s no question the band engaged in what musicologists typically call “borrowing.” Any blues fan, for instance, would have recognized the lyrics of Dixon’s “You Need Love” – as recorded by Muddy Waters – on a first listen of “Whole Lotta Love.”
Dipping into the commons or appropriation?
Should the band be condemned for taking other people’s songs and fusing them into its own style?
Or should this actually be a point of celebration?
The answer is a matter of perspective. In Zeppelin’s defense, the band is hardly alone in the practice. The 1960s folk music revival movement, which was central to the careers of Baez, Holmes, Bredon, Dixon and Burnett, was rooted in an ethic that typically treated musical material as a “commons” – a wellspring of shared culture from which all may draw, and to which all may contribute.
Most performers in the era routinely covered “authorless” traditional and blues songs, and the movement’s shining star, Bob Dylan, used lyrical and musical pastiche as a badge of pride and display of erudition – “Look how many old songs I can cram into this new song!” – rather than as a guilty, secret crutch to hold up his own compositions.
Why shouldn’t Zeppelin be able to do the same?
On the other hand, it’s hard to ignore the racial dynamics inherent in Led Zeppelin’s borrowing. Willie Dixon and Howlin’ Wolf were African-Americans, members of a subjugated minority who were – especially back then – excluded from reaping their fair share of the enormous profits they generated for music labels, publishers and other artists.
Like their English countrymen Eric Clapton and The Rolling Stones, Zeppelin’s attitude toward black culture seems eerily reminiscent of Lord Elgin’s approach to the marble statues of the Parthenon and Queen Victoria’s policy on the Koh-i-Noor diamond: Take what you can and don’t ask permission; if you get caught, apologize without ceding ownership.
Led Zeppelin was also accused of lifting from white artists such as Bredon and the band Spirit, the aggrieved party in a recent lawsuit over the rights to Zeppelin’s signature song “Stairway to Heaven.” Even in these cases, the power dynamics were iffy.
Bredon and Spirit are lesser-known composers with lower profiles and shallower pockets. Neither has benefited from the glow of Zeppelin’s glory, which has only grown over the decades despite the accusations and lawsuits leveled against them.
A matter of motives
So how did the band pull it off, when so many of its contemporaries have been forgotten or diminished? How did it find and keep the holy grail? What makes Led Zeppelin so special?
I could speculate about its cultural status as an avatar of trans-Atlantic, post-hippie self-indulgence and “me generation” rebellion. I could wax poetic about its musical fusion of pre-Baroque and non-Western harmonies with blues rhythms and Celtic timbres. I could even accuse it, as many have over the years, of cutting a deal with the devil.
Instead, I’ll simply relate a personal anecdote from almost 20 years ago. I actually met frontman Robert Plant. I was waiting in line at a lower Manhattan bodega around 2 a.m. and suddenly realized Plant was waiting in front of me. A classic Chuck Berry song was playing on the overhead speakers. Plant turned to look at me and mused, “I wonder what he’s up to now?” We chatted about Berry for a few moments, then paid and went our separate ways.
Brief and banal though it was, I think this little interlude – more than the reams of music scholarship and journalism I’ve read and written – might hold the key to solving the paradox.
Maybe Led Zeppelin is worthy because, like Sir Galahad, the knight who finally gets the holy grail, its members’ hearts were pure.
During our brief exchange, it was clear Plant didn’t want to be adulated – he didn’t need his ego stroked by a fawning fan. Furthermore, he and his bandmates were never even in it for the money. In fact, for decades, Zeppelin refused to license its songs for television commercials. In Plant’s own words, “I only wanted to have some fun.”
Maybe the band retained its fame because it lived, loved and embodied rock and roll so absolutely and totally – to the degree that Plant would start a conversation with a total stranger in the middle of the night just to chat about one of his heroes.
This love, this purity of focus, comes out in its music, and for this, we can forgive Led Zeppelin’s many trespasses.
