June 4, 2005

More on Bridgeport Music [6:45 pm]

The Sixth Circuit continues to satisfy copyright maximalists — see this article: Appeals Court Reaffirms Its Tone-Deaf Approach to Music Sampling. The opinion: Bridgeport Music Inc v. Dimension Films

The claims at issue in this appeal were originally asserted in an action filed on May 4, 2001, by the related entities Bridgeport Music, Southfield Music, Westbound Records, and Nine Records, alleging nearly 500 counts against approximately 800 defendants for copyright infringement and various state law claims relating to the use of samples without permission in new rap recordings. In August 2001, the district court severed that original complaint into 476 separate actions, this being one of them, based on the allegedly infringing work and ordered that amended complaints be filed.

[...] 7. The music industry, as well as the courts, are best served if something approximating a bright-line test can be established. Not necessarily a “one size fits all” test, but one that, at least, adds clarity to what constitutes actionable infringement with regard to the digital sampling of copyrighted sound recordings.

[...] The copyright laws attempt to strike a balance between protecting original works and stifling further creativity. The provisions, for example, for compulsory licensing make it possible for “creators” to enjoy the fruits of their creations, but not to fence them off from the world at large. 17 U.S.C. § 115. Although musical compositions have always enjoyed copyright protection, it was not until 1971 that sound recordings were subject to a separate copyright. If one were to analogize to a book, it is not the book, i.e., the paper and binding, that is copyrightable, but its contents. There are probably any number of reasons why the decision was made by Congress to treat a sound recording differently from a book even though both are the medium in which an original work is fixed rather than the creation itself. None the least of them certainly were advances in technology which made the “pirating” of sound recordings an easy task. The balance that was struck was to give sound recording copyright holders the exclusive right “to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.” 17 U.S.C. § 114(b). This means that the world at large is free to imitate or simulate the creative work fixed in the recording so long as an actual copy of the sound recording itself is not made. That leads us directly to the issue in this case. If you cannot pirate the whole sound recording, can you “lift” or “sample” something less than the whole. Our answer to that question is in the negative.

[...] In other words, a sound recording owner has the exclusive right to “sample” his own recording. We find much to recommend this interpretation.

To begin with, there is ease of enforcement. Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a “riff” from another work in his or her recording, he is free to duplicate the sound of that “riff” in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another’s work product.

This analysis admittedly raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three notes by way of sampling from a sound recording. Why is there no de minimis taking or why should substantial similarity not enter the equation. Our first answer to this question is what we have earlier indicated. We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording 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.

A “physical taking?” Really? Note that this worried me earlier — earlier postings

Later: The Sixth Circuit Reaffirms Controversial Sound Recording Opinion

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Whistling Past the Graveyard [6:10 pm]

Secretary Gutierrez seems to have already learned how to speak of the world as he wishes it were, rather than as it is: China a Weak Ally on Piracy

Gutierrez noted that applications for patents by Chinese companies now exceed those filed by foreign firms, suggesting that this indicates that China is now developing its own innovations and will want to protect them.

“China is beginning to transition from a manufacturer of commodities to an innovator,” he said.

Uh-huh — read the article and tell me if you think that the Secretary understands what his own eyes tell him

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Zennstrom and Skype Profiled in the WaPo [6:01 pm]

File-Sharing Pioneer Turns to Free Internet Calling

About 70 miles from the U.S. border that he will not cross, Niklas Zennstrom is pondering which gets him more excited: making life miserable for entrenched monopoly businesses or making money doing it.

The answer is both, and two of the world’s largest industries haven’t been the same since he went to work. Neither has the Internet.

In co-creating the file-sharing software Kazaa in 2000, Zennstrom helped fuel an online revolution that music labels and motion picture studios say threatens their existence. Sued by the entertainment industry even though he sold Kazaa in 2002, Zennstrom avoids the United States as his lawyers seek to remove him from the case.

Now, the 39-year-old Swede, whom few consumers have ever heard of, is aiming the same technology at something even bigger: telephone calls.

Skype Technologies SA, Zennstrom’s newest venture, allows users of its software to talk to each other, via their computers, for free.

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The NYTimes Gives Santorum What For [5:48 pm]

Overcast in Pennsylvania

Far from just talking about the weather, Senator Rick Santorum is doing something dank and cloudy about it: he is proposing to squelch the National Weather Service’s growing role in the information age.

[...] Lately, the Weather Service itself has been trying to make all its information more accessible to anyone who wants it. But Mr. Santorum, the No. 3 Republican in the Senate, has introduced legislation that would basically require the service to give much of its data only to those private weather forecasting companies. A dozen of those businesses happen to be located in Mr. Santorum’s home state, Pennsylvania.

“It’s not an easy prospect for a business to attract advertisers, subscribers or investors when the government is providing similar products for free,” the senator said, somehow overlooking that taxpayers finance this round-the-clock national resource in the first place.

S.786, introduced on April 14 of this year. Cited also here: Santorum’s Weather Push with links the the EFF page on the subject.

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