The Barlowian Internet: The Faults Of The Internet Are Also Its Opportunity, But It's Up To Us To Embrace Them

from the a-remembrance dept

John Perry Barlow is all too frequently held up as the patron saint of a sort of "techno-utopian" internet, in which the internet will save us all and open up all sorts of wonderment and good feels -- and all the bad stuff is whisked away on a rainbow cloud of TCP/IP. Critics of Barlow sometimes delight in mocking his flowery language or predictions that didn't come quite true (though many did). They especially delight in pointing to the current internet hellscape as proof that Barlow's vision of the internet-for-good was a vision through impossibly rose-colored glasses. As I noted upon his passing, this is a near total misunderstanding of Barlow, who saw both the promise and the peril of the internet, and his writings were designed as a call to action for those developing the future (i.e., all of us), to embrace the good and avoid the bad. His presentments were an attempt to urge us all in the right direction, not a suggestion that that direction was inevitable, or easy, or guaranteed.

That framing is useful context for reading through an amazing collection of essays and reflections on Barlow put together by Duke's Law & Technology review, in what it has entitled The Past and Future of The Internet: A Symposium for John Perry Barlow. Edited by Jamie Boyle, with some amazing contributions from folks like Cindy Cohn, Cory Doctorow, Yochai Benkler, Pam Samuelson, Jessica Litman, Jonathan Zittrain and more, it's absolutely worth reading, no matter where you stand on Barlow and his legacy. It is not -- as you might think -- a hagiography designed solely to praise Barlow. Indeed, it contains quite a few essays that are critical of Barlow -- arguing that he was over-optimistic, that he didn't recognize the downsides of the internet, and that he was misguided in his views of how the internet and (especially) copyright law might change over time.

There is much in this collection of essays that are thought-provoking and challenging (just as Barlow himself often was). Boyle's own contribution, which I'd argue is incorrectly titled Is The Internet Over?! (Again?), might be seen as a summation of all the papers in the rest of the collection, but I actually think it's much more important than that. Towards the beginning of his piece, Boyle laments the fact that so many of his law students don't actually understand how the internet works. And, that's a much bigger problem than you might think:

I teach at a law school that has world-class faculty and brilliant students. Their breadth of learning humbles me on a daily basis. But many of them do not understand the network architecture that is so central to their lives. Of course, it is not their specialty. Yet they understand the basic explanation of anthropogenic climate-change, the idea of externalities in economics, the broad strokes of the history of civil rights in the United States, the debate about whether minimum wages are good for poor workers and the issues raised by the use of drones in armed conflict. They fluently invoke the concept of noir cinema and make jokes about magical realist fiction when a faculty meeting turns bizarre. They are, in short, profoundly well-rounded, educated people, knowledgeable beyond their own specialties. But they do not really understand the internet or the world wide web. That is a shame.

It is a shame because understanding the most important communications network of our time, the network for our culture and news and search and flirting and shopping and politics, is central to knowing how—or whether—to regulate it. To build on it. To use it. As I will try to explain, some of the features of the internet that its critics view as its main problems—anonymity, the fact that anyone can connect to the internet and say anything, the difficulty of filtering it or managing it, its decentralized anarchic governance—are also among its transformative and engaging features. It is a shame for us not to understand all this because the network that shapes our cognitive world, defines our markets, and runs our infrastructure is as important as the rest of the things a “well-rounded person” knows about. But it is also a shame because Berners-Lee’s idea was beautiful. It was an idea that a scholar would come up with and that a scholar would love. Now it is central to our world. Yet somehow it progressed from bizarre novelty to essential utility without ever passing through the intermediate stage of public comprehension.

And while he's actually talking about the work of Tim Berners-Lee here, rather than Barlow, I think much of the same applies to Barlow and his vision of the world, and why so many are perplexed by it or misinterpret it. In the same sense that so many people see only the "techno-utopian" appeals of Barlow, they see only the downsides, negatives, and costs of today's internet. What they miss is that these two things are, in many ways, connected at the hip. What enables all this good stuff is also what enables the bad. What enables boundless creativity and optimism and innovations... also enables surveillance, centralized dominant platforms, trolls and more.

Barlow wasn't ever saying that we'd get one without the other. He was saying that we need to truly understand the upside to better protect against the downside -- and his (reasonable) fear was that in trying to fight back against the very real downsides, people, who did not understand the overall system and how it worked together, would very much destroy the good of the internet in a short-sighted focus on the bad.

That risk remains more true today than ever before.

Indeed, to those who say that Barlow was just a purely techno-utopian dreamer, Doctorow's piece has the perfect antidote:

When Barlow advocated for a free internet––“free” in all the usefully overlapping and ambiguous senses of that word––he wasn’t doing so because he lacked an appreciation of the risks of a monopolized internet, or an internet that was under the thumb of a repressive state. Rather, he did so precisely because he feared that a globe-spanning network of ubiquitous, sensor-studded, actuating devices that were designed and governed without some kind of ethical commitment, without the pioneering spirit of the early internet and its yeoman smallholders who defended it from those who sought to dominate or pervert it, that we would arrive at a dystopian future where the entertainment industry’s Huxelyism was the means for realizing the nightmares of Orwell.

You don’t found an organization like the Electronic Frontier Foundation because you are sanguine about the future of the internet: you do so because your hope for an amazing, open future is haunted by terror of a network suborned for the purposes of spying and control.

But there's a flip side to all of this, some of which comes out in the essays -- though I wish there were more. Barlow's hope is very much out of favor today, even if many of his claims about the good of the internet did, in fact, come true. Along with it came much of the bad, and the prevailing narrative today seems to dismiss all of the good and focus solely on the bad. The days of merely concerning ourselves with the fights over copyright online have mostly fallen by the wayside, with so much focus now on things like terrorist content, mis- and disinformation, human trafficking, illegal drug abuse, trolls, hate speech, and more.

But the key point is still there. The key, underlying truth behind what Barlow meant to the internet remains. Yes, the open and free internet has enabled all of this. But it has enabled so much more that is good and useful and innovative and powerful. And we should not forget that. Indeed, forgetting it, and focusing solely on the bad stuff is a recipe for destruction of that which is good on the internet. It is exactly what Barlow feared most.

Those of us who fight to keep the internet open and free don't do it because we're ignoring or downplaying the bad things that have occurred and do exist on the internet. We're not blind to the power that a few large companies have taken in shaping the current internet. But we're fearful of how misguided attempts to stop the bad are almost always being done without an understanding of the flipside. As Boyle notes in his essay, it's that lack of understanding and recognition that, yes, anonymity can lead to trolling, but it can also lead to amazing communities where the oppressed and isolated can connect with others and work for a better world. Yes, the fact that the internet is open can lead to greedy surveillance or companies trying to observe our every move -- but it also enables anyone to create something amazing, whether for fun or for profit, and has created tons of new jobs, new products, new services, and just plain fun. Yes, governments can use the internet for oppression and surveillance, but people can use it to organize and make change as well.

The point Barlow was pushing for was that we need to understand the good opportunities to know how to stop the overreaction in the other direction. Yes, it's important to think about ways to limit all of the bad stuff described above, but we need to do it in ways that enhance the good, not kill it off. We should encourage privacy through encryption, not deputizing large companies to "protect" us. We should encourage competition through making it easier for new internet services to come about, not through locking in the dominance of Facebook and Google as "utilities." We should encourage good behavior online by allowing for widespread experimentation in models to figure out what works for each community, rather than mandating a strict course of action that all platforms must follow.

John Perry Barlow saw the good and the bad of the internet, and recognized, inherently, that they were tied together. He promoted the utopian possibilities of the internet not because he was ignorant of the bad side, but because he knew that if people didn't recognize those possibilities, they'd likely be snuffed out in an overzealous attempt to protect us from the "bad" stuff that came with it. As we're now in an era where many of Barlow's worst fears are within the realm of possibility, now is the time to revisit Barlow's vision and understanding.

We need to understand the possibilities and opportunities of the internet -- not because we're utopians who think it's coming naturally. But because we know that without understanding what's possible, we'll lock it away forever.

Filed Under: digital rights, free and open internet, james boyle, john perry barlow, opportunities, optimism, techno utopian

Techdirt Reading List: The Public Domain: Enclosing The Commons Of The Mind

from the don't-forsake-the-public-domain dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt. Every year at the beginning of January, we post a story about all the works that should be entering the public domain in the US, but aren't. That's always based on a blog post from Duke's Center for the Study of the Public Domain, which is led by professor James Boyle. Every time we do this, some people seem to ask what's such a big deal about the public domain anyway, and I usually like to point such people to Boyle's own book on the subject: The Public Domain: Enclosing the Commons of the Mind.

The book is a wonderful exploration about the public domain, why it's important and how problematic it is that it's been systematically cut off and starved. And, yes, before you ask, if you want a free copy of the book that's available too (though, obviously buying a copy supports both Boyle and us (if you use our Amazon link above). Beyond being educational about the public domain, the book is very readable and entertaining as well. For some reason, people who aren't immersed in this stuff sometimes think that issues like the public domain need to be dry and boring, but much of it is really fascinating. If you don't feel like reading the whole book, but just dipping in for parts, I highly recommend Chapter 6, entitled I Got a Mashup. Though, once you read that, it hopefully will make you want to read the entire thing. I've found it one of the most useful books in showing just why the public domain is so important, and why it's so disastrous that it's been closed off for so long.

Filed Under: copyright, james boyle, public domain, techdirt reading list

Intellectual Property Casebook Now Available As A Free Download

from the check-it-out dept

About a month ago I wrote about James Boyle and Jennifer Jenkins of the Center of the Study of the Public Domain at Duke Law School releasing a free download of an Intellectual Property Statutory Supplement (which normally big publishers try to sell for around $50). As noted, this was a kickoff for an even bigger project, an open coursebook in intellectual property. That Open Intellectual Property Casebook is now available. You can download the whole thing for free. If you want a nice printed copy, it'll currently run about $24 on Amazon -- which is about $135 less than other IP case books. The entire book weighs in at nearly 800 pages, so there's a lot in there if you felt like delving into a variety of topics around copyright, trademark and patent law -- including specific efforts by Congress around those laws and the way that the courts have interpreted them.

As mentioned in our last post, Boyle and Jenkins are doing this, in part, because they recognize the insane prices that academic publishers have been getting away with charging for their books:

Partly, we do it because we think the price of legal casebooks and materials is obscene. Law students, who are already facing large debt burdens, are required to buy casebooks that cost $150–$200, and “statutory supplements” that consist mainly of unedited, public domain, Federal statutes for $40 or $50. The total textbook bill for a year can be over $1500. This is not a criticism of casebook authors, but rather of the casebook publishing system. We know well that putting together a casebook is a lot of work and can represent considerable scholarship and pedagogic innovation. We just put together this one and we are proud of it. But we think that the cost is disproportionate and that the benefit flows disproportionately to conventional legal publishers. Some of those costs might have been more justifiable when we did not have mechanisms for free worldwide and almost costless distribution. Some might have been justifiable when we did not have fast, cheap and accurate print on demand services. Now we have both. Legal education is already expensive; we want to play a small part in diminishing the costs of the materials involved.

However, they also note that it's not just about making the books cheaper, but better and more useful:

Our point is not only that the current casebook is vastly too expensive, it is also awkward, inflexible, lacking visual stimulus, incapable of customization and hard to preview and search on the open web. Casebooks do not respond well to the different needs of different professors. Students cannot easily be given free, searchable digital access to all the materials, on all their devices, anywhere, access that does not go away when the course—or the publisher—ends. We can do that.

There are also lots of people outside of law school, or outside this country, who would like to know more about American law—just as there are people outside of computer science who want to know about artificial intelligence. Free is a good price-point for them. Customizable is a good form. This book is merely a beta-test version, but it is an example of what can be done.

In case you're wondering, while the statutory supplement was available on a CC: BY license (requires just attribution), this casebook is under a CC: BY-NC-SA license. The key differences: the former can be resold commercially while the latter has a block on commercial uses. It also has a "share alike" requirement. While I'm a huge fan of Creative Commons, I've been critical of its licenses that include the non-commercial restriction and believe there are strong reasons to remove them, in part because of a perception and branding problem that people have, which potentially do more harm than good to the Creative Commons brand. Many people believe that all CC licenses are "non-commercial" which has actually limited those who wish to use them to encourage commercial use. Separately, the definition of "non-commercial" can be pretty vague (though, to its credit, Creative Commons has worked hard to clarify).

While Boyle and Jenkins are using an NC license with the casebook, I'm happy that they at least put in a note defining their interpretation of commercial use:

Editor’s note: we interpret this to mean “providing the material above cost.” Digital cost is zero. You are free to reproduce the material in paper form and charge a fee to cover copying costs, but nothing more. This applies both to commercial and non commercial entities.

I still think it would have been fine if they'd skipped the "NC" altogether, but it does not appear to be a huge issue here. On the whole this is great news for folks who want to learn more about copyright, patents and trademark law -- whether you're a law student or just an interested bystander...

Filed Under: casebook, copyright, creative commons, education, free, free download, intellectual property casebook, ip casebook, james boyle, jennifer jenkins, law school, patents, trademark

Duke Professors Looking To Make Legal Texts Affordable; Kicking Off With Intellectual Property Law

from the make-it-so dept

James Boyle and Jennifer Jenkins of the Center of the Study of the Public Domain at Duke Law School have recognized what many people have: the academic publishing world is insane. Textbook pricing is generally insane, in part because the people who make the decision (the professors) are not the people doing the buying (the students), meaning that the buyers have little to no choice in what they buy. That enables the publishers to jack up the prices to absolutely insane rates. This even includes legal "casebooks" and "statutory supplements," which are often composed of mostly public domain material (or, legal filings where the person who put together the book had no authorship). So Boyle and Jenkins are working on an open coursebook for intellectual property, which looks like it's going to be fantastic.

To kick it off, however, they've now released an Intellectual Property Statutory Supplement, which basically has the text of various relevant laws and international agreements concerning intellectual property in the United States. A somewhat equivalent book that many law schools use will run you over $50. But the Boyle/Jenkins statutory supplement is free to download, or available for print-on-demand at cost (around $10) for law students who need paper copies and can't bring electronic copies into classrooms. As they note in the announcement about this project:

We are motivated in part by the outrageously steep cost of legal teaching materials, (and the increasing restrictions on those materials — such as the removal of the right of first sale). This book is intended for use with our forthcoming Intellectual Property casebook (coming in the Fall) but can also be used as a free or low cost supplement for basic Intellectual Property courses — at the college, law school or graduate school levels. Whether or not you buy it, the free download will at the very least gives you a statutory reference book for those times when internet access is unavailable, and you just need to scratch that intellectual property research itch. The book is also available at cost of production — about $10.50 — as a handsomely covered paperback. Most of the current Intellectual Property Statutory & Treaty Supplements are $45-$50.

As you may recall, just a few months ago, we wrote about some well-known publishers of legal casebooks trying to undermine first sale rights by requiring students to give back books they bought in exchange for access to a digital copy (which may or may not stay online). It's good to see folks like Boyle and Jenkins step in and recognize that there's more to be gained by sharing knowledge and information, rather than seeking to lock it up. I hope other professors will follow suit.

Oh, and as a bonus, you owe it to yourself to read their posting on Thomas Macaulay's famed 1841 speech about the dangers of copyright maximalism. We've quoted from it at times, and the famous line from it is usually how "the effect of [the copyright] monopoly generally is to make articles scarce, to make them dear, and to make them bad." However, the entire speech is worth reading, and here they highlight a warning against copyright maximalism, in which he notes that it will lead to less respect for the law. Remember, he was saying this in 1841. Fairly prescient, huh?

At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot… Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

Filed Under: academic publishing, casebooks, copyright, creative commons, intellectual property, intellectual property statutory supplement, james boyle, jennifer jenkins, legal case books, patents, public domain, textbooks

Copyright Week: Our Lost Culture: What We Lose From Having Killed The Public Domain

from the we-need-more-public-domain dept

Yesterday, for Copyright Week, we wrote about transparency (and the lack of it in making copyright law). Today's issue is the public domain. While we just wrote about the lack of new works going into the public domain this year (as happens every year in the US), I've seen some copyright maximalists asking why this is a big deal, since all the works listed are readily available to purchase. This is uninformed in the extreme. In the past I've suggested that everyone interested in these issues owes it to themselves to read James Boyle's excellent book, The Public Domain, and I'll reiterate that recommendation now. Not surprisingly, the book is available online for free, though you can also purchase a copy, which is a worthwhile investment.

However, the damage that our missing public domain does to culture, society, learning and knowledge is quite incredible. Two years ago, we had mentioned some research done by Professor Paul Heald, in which he noticed an incredible thing about new books available from Amazon, showing that plenty of recent new books were available, but they fade quickly... until you hit 1922 (the basic limit, before which nearly all works are in the public domain). And then there's a sudden jump in the works available. See that big gap? All of that is lost culture thanks to our restrictive copyright laws, and the 1976 Act's ability to effectively kill off the public domain in the US. It should be seen as highly problematic that there are more books from the 1880s available for sale on Amazon than books from the 1980s.

Since then, Prof. Heald has continued to do even more research into the public domain and how it's distorted our cultural output and made much of it disappear, going beyond just books, but also exploring the impact on music. In an even more recent paper, a draft of a book chapter, Prof. Heald again dives into the issue of the way copyright law has distorted the availability of culture. He takes that earlier chart, and then decides to compare the "new books" available on Amazon with "used books" available on ABE books (the most popular marketplace for used books), and shows the market distortions clearly: In the paper, Heald also makes the case that the arguments against the public domain don't make much sense. The idea that works would be "under exploited" because they convey no ownership is simply not supported by the data -- as seen above. Similarly, the idea of works being "over exploited" because "anyone can do anything with them" seems just silly. It's a misunderstanding of the "tragedy of the commons," and there appears to be little empirical research to support the idea that there's any real problem here.

As a related matter, we've pointed in the past to research concerning copyright renewal rates, as found in William Patry's excellent book, Moral Panics and the Copyright Wars. Prior to the 1976 Act, copyright holders not only had to register, but they also had to "renew" their copyright after 28 years if they wanted a second 28 years of protection. And yet, in 1958 and 1959, very few works were actually renewed. In fact, as you can see, with the exception of movies, the vast majority of copyright holders in every other area were actually fine with letting their works fall into the public domain after 28 years. And yet, for reasons that are still unexplained, we now automatically give them life plus 70 additional years, even though all of the evidence suggests they neither need nor want that level of protection, and that such levels of protection appear to make their works significantly less available.

And none of that even touches on the nature of creativity, and the way in which amazing new works often borrow and build upon the works of those who came before them. The greatest works of Shakespeare were more or less copied from others -- but he was able to make them into something special. Why is that such a problem? If someone can make use of the work of someone else who failed to make it spectacular, and turn it into something amazing, why are we precluding that possibility? The entire purpose of copyright law in the US was supposed to be about enabling greater dissemination of learning and knowledge, and that's by increasing the public domain. Yet, instead, because of regulatory capture, and the ability of gatekeepers to hijack the process, we've created a copyright law that does exactly the opposite. It restricts the dissemination of knowledge, decreases cultural sharing and availability, and generally harms creators and their ability to build on culturally relevant works.

What defenders of restrictive copyrights often fail to recognize is that the public domain is what made culture culture. Culture is a shared concept, in which lots of people are all experiencing the same or similar things -- and making it their own as a part of that. We used to share stories, retell jokes, build on and change the works of others, and it was that shared effort that built culture and helped it spread. But copyright law has changed all that. Rather than a true cultural phenomenon, where culture is built up by the public in terms of what they create, share and build upon, we now have a situation where the gatekeepers decide what culture is, push it on everyone via broadcast means, and then tell us not to do anything about it... unless we pay exorbitant sums. That's a perverse understanding of how culture happens, and one that does not benefit creators or the public (often one and the same), but is hugely beneficial for a few gatekeepers.

For a robust creative community and culture, it is important to bring back a healthy respect for the public domain.

Filed Under: copyright, copyright week, culture, james boyle, paul heald, public domain, william patry

A Look At 'Ownership' Society

from the it's-gotten-out-of-hand dept

We're big fans here of the WNYC radio show On The Media which regularly covers a number of the same issues we cover here at Techdirt. So we were quite thrilled to hear that their latest episode was entirely devoted to one of our favorite topics: The Past, Present, and Future of Ownership, mostly as it relates to ownership of things that are non-rivalrous and non-excludable. There were lots of great segments:

• The Current State of Ownership: which covered the DRM Chair, and also talks to one of our favorite scholars on the subject, Professor James Boyle, about how the concept of "ownership" of culture has gone too far.
• Happy Birthday: which explored the history of the song and the claims that Warner Music owns it -- even though all of the evidence suggests that Happy Birthday is 100% in the public domain. In the segment, producer PJ Vogt suggests that he wanted to test this by putting up a version of the song on iTunes, but unfortunately, their lawyers nixed that idea.
• Fan Fiction and the Law: in which they talk to another of our favorite scholars, Rebecca Tushnet on the nature of fair use.
• 3D Printing, in which Chris Anderson explains how 3D printing is going to change the world in amazing and astounding ways.
• Don't Screw It Up, in which Public Knowledge's Michael Weinberg worries about politicians killing off all those amazing and astounding things that Chris Anderson talked about once they freak out about how 3D printing will disrupt a bunch of industries.
• Plaigiarism: Maybe It's Not So Bad where they talk to professor Kenneth Goldsmith, the new poet laureate of the NY MOMA, who apparently thinks that plagiarism is an art form. He apparently has his students buy an online term paper, hand it in, and then has them defend it as if it was their own. At one point, he notes that students are doing this anyway, so he might as well teach them to be better at it.

All in all a great program for folks interested in these topics. There was only one segment that I found disappointing. I get the feeling someone at OTM felt they needed someone to represent "the other side" of the argument that "ownership society" has gone too far, and so they had musician and critic of the "new media world," David Lowery (you may recall him from the past, like when he claimed that Apple iTunes did nothing more than host songs, leaving out the whole aspect of bringing everyone together, processing payments, etc.) In that segment, he chooses to take a swipe at The Sky is Rising report, which I co-authored, and he does so by completely misrepresenting what's in the report, as he has done in the past. I responded in the comments on that story on OTM's own site, and a lively discussion has ensued. Furthermore, Lowery took a completely gratuitous swipe at Amanda Palmer, bizarrely suggesting that the only reason she's successful is her penchant for getting naked. His disdain for someone who actually is successful by embracing fans and the internet is quite clear and insulting to the thousands of artists who have found success online whether or not they get naked. I don't mind people disagreeing with my opinion, but flat out saying we said stuff we never said is pretty bad, as is gratuitous insults for successful artists like Amanda Palmer, and it hurts OTM's reputation to present such things in that format.

Either way, it's great to see the rest of the segments get public attention, as more and more people are recognizing that copyright law today is broken, and is creating a society where a focus on "ownership" takes things so far, as to actually hinder the rights of the public in dangerous ways.

Filed Under: 3d printing, chris anderson, copyright, excludable, james boyle, non-rivalrous, on the media, ownership, ownership society, property, rebecca tushnet

Ray Charles' Foundation Sues His Own Children In Copyright Fight

from the termination-can't-be-contractually-taken-away dept

The Ray Charles Foundation is now suing seven of his children for $3.5 million -- basically asking for their inheritance back -- after the children sought to terminate the copyrights on his songs and regain control over them. There's a bit of a backstory here. Apparently, before he died, Charles gathered a bunch of his children, and told them that he was leaving each of them $500,000 (and enough to cover the taxes on the money) if they signed agreements stating that was all they would get, and that they would not seek to get anything else from his estate. However, recently a bunch of the children have begun the process of terminating the copyright assignments over Charles' songs, and the Foundation is arguing this is a breach of that agreement.

Now, my first thought upon reading the CNN article above is that this doesn't make much sense. We've been discussing copyright termination rights for a while, and one clear aspect of them is that you cannot contractually give up your termination rights. I would think that a contract that provided something that you lose if you exercise your termination rights would not be enforceable for that reason. If you haven't been following the details of the termination rights issue, under the 1976 copyright act, original creators can "terminate" the assignment of their copyright and basically reclaim it from whoever has it at the 35 year mark. Thus, musicians who signed record deals in 1978 (when the Act first came into effect) can start reclaiming their rights next year.

However, the details found in the actual lawsuit (pdf and embedded below) are a bit more complicated. First of all, as we've discussed at length, if the artist is considered to have done work under a "work for hire" agreement (and the terms of what counts for work for hire are very specific and go way beyond just saying it's work for hire), then termination rights do not apply. In this case, the Ray Charles Foundation is actually arguing that Ray Charles' agreement with Atlantic Records was a "work for hire" situation. This is a little strange. Normally, we see the record labels arguing that it was work for hire, but the artist or their heirs arguing it was not. In this case, however, since the Foundation is completely cut off from the heirs, it seems to be arguing in favor or a work for hire arrangement. Also, the reason why the 1976 Act's termination rights apply to works from before 1978 is a bit complicated, but it has to do with a new agreement that Charles made concerning his works in 1980.

If you find this all a bit confusing, you're not the only one. The Foundation notes that Charles' children aren't even sure which works can be terminated, and because of multiple copyright registration dates, they've been filing for termination on the same work multiple times:

The situation of the Ray Charles song "Mary Ann," is illustrative: Defendants have served a purported termination for a supposed January 23, 1955, transfer (supposedly to take effect on April 1, 2012), another purported termination for a supposed May 2, 1963, transfer (supposedly to take effect on May 3, 2019), and, because "Mary Ann" is an Assigned Composition under the 1980 Agreement, a third termination for a supposed transfer contained in this September 23, 1980, agreement (supposedly to take effect on November 15, 2015). Even if some of the terminations were deemed valid, it is still extremely difficult, if not impossible to determine when the copyright of the Assigned Compositions will change hands.

Of course, I'm not so sure that's a reasonable excuse for ignoring termination rights altogether. Just because the labels and Charles may have had piss poor record keeping, people should just throw their hands up in the air and ignore termination rights?

Reading through this lawsuit really highlights just what a complete and total mess copyright law is, and how it's such a complicated mess due to the way it's been adjusted and changed over the years, that the system is really quite hopelessly broken. A situation like the one described above with multiple termination notices on the same song is just illustrative of the problem. Furthermore, while I'm not a fan of the concept of termination rights in general, this case could get interesting for being one (of many) testing challenges over whether or not artist agreements from decades ago were really "work for hire" situations -- and this is a case where the label isn't actually involved (right now). That makes it one worth watching.

Of course, there is a separate issue that hasn't been brought up yet, but I wonder if it will make an appearance at some point. In his book The Public Domain, James Boyle tracks down the true history of Ray Charles' classic song "I Got a Woman". What he discovers is that, contrary to what has been said before, the song was actually a copy of a song by the Bailey Gospel Singers called "I've Got a Savior" (whereas the common wisdom is that Charles was actually copying a public domain song "Jesus Is All The World To Me"). As Boyle discovered, "I've Got a Savior" is much much closer to "I Got a Woman". And that's at least somewhat problematic, since "I Got a Woman" came out just three or four years after "I've Got a Savior" (which itself borrowed heavily from other works). So, once could make an argument that "I Got a Woman" (which is one of the songs being disputed here) may have some fairly shallow copyrights on just the changes from that other song.

Of course, perhaps the larger point in all of this is that almost all of the songs being fought over should be going into the public domain about now. "I Got A Woman", for example, received its copyright on December 20th, 1954 -- at which point it would have been given a 28 year grant, renewable for another 28 years. As such it should have gone into the public domain in 2010. There are a bunch of other songs on the list that received their original copyright in 1955 and 1956 -- all of which should be going into the public domain right now, but are not. Perhaps that's the real issue that we should be focusing on: how the public has been completely robbed of these works, violating the promise made to the public in exchange for granting Charles and Atlantic Records that original copyright.

Filed Under: james boyle, public domain, ray charles, termination rights, work for hire
Companies: atlantic records, ray charles foundation

UK Team Reviewing Copyright Law Will Include James Boyle

from the good-news dept

Here's a nice surprise. Recently, the UK announced plans to commission a report that would review copyright laws from top to bottom. While we felt that it was odd for the UK to do this, since it had done pretty much exactly the same thing four years ago, it sounded as though they were going to focus on things like the importance of fair use and the public domain -- which would definitely be a good thing. While we were a little concerned about the decision to have a journalism professor, Ian Hargreaves, lead the process, it's worth noting that a panel has been put together to help Hargreaves. And among the panel members is James Boyle -- author of The Public Domain as well as the guy we were just talking about for his recent FT column about how we should stop relying on fantasy numbers in these copyright debates. Now I'll admit that I know Boyle as a regular email acquaintance, but he's one of a very short list of folks who I think is absolutely essential to be advising any government on copyright reform policies -- so this is pretty exciting. I'm not nearly as familiar with the other four members of the panel, though scanning through some of the research done by a few of them, it should make for some interesting discussions...

Filed Under: copyright, james boyle, public domain

Upcoming Comic Book By Law Professors Compares ACTA To 1984

from the have-fun-with-it dept

Thanks to James Boyle, I have a lovely paper copy of Bound by Law on my office bookshelf. It's a comic book/graphic novel put together by three law professors to explain the public domain and the importance of fair use. I knew they'd been working on a new graphic novel as well, and SF Gate recently revealed some details about the new comic, to be called Theft: A History of Music, and revealing a nice graphic image to give you an idea of what it's about, including a comparison between 1984 and ACTA (click through to see a much larger version):

Filed Under: acta, comics, copyright, james boyle