Saturday, March 22, 2008

How to profit without risking infringement: appropriate creations unprotected by our intellectual property laws

More from the Manual, the KLF's how-to book on making a number one pop hit. Here they note that the first component part of the song is its "groove," and that "Black American records" are always a reliable source for effective ones. Oh, and they point out that the grooves on those records aren't even considered part of the copyrighted music:

The first of the component parts you are going to need to find is the irresistible dance floor groove.

Before we go any further we had better define "groove". It is basically the drum and bass patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .

Black American records have always been the most reliable source of dance groove. These records down through the years have inevitably laid so much emphasis on the altar of groove and so very little into fulfilling the other Golden Rules that they very rarely break through into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not only by the business but by all the artists that have followed on from them. This is because the copyright laws that have grown over the past one hundred years have all been developed by whites of European descent and these laws state that fifty per cent of the copyright of any song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove doesn't even get a look in. If the copyright laws had been in the hands of blacks of African descent, at least eighty per cent would have gone to the creators of the groove, the remainder split between the lyrics and the melody. If perchance you are reading this and you are both black and a lawyer, make a name for yourself. Right the wrongs.

The KLF aren't the only ones who have detected racial and cultural bias in Western intellectual property laws. As the Authorship Collective in the English Department right here at Case Western Reserve explains (footnotes omitted):
With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions -- the recovery of marginalized creators and underappreciated forms of creative production -- has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center -- indeed, the linchpin -- of Anglo-American copyright as well as of European "authors' rights" is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the "transformative" moment in the creative process.
The Authorship Collective goes on to cite examples of "biopiracy," the appropriation by pharmaceutical companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the plants' effective ingredients and profit from the sale of the "new" drug. For example:
The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as "Bushmen", although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia's properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by "mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we're full…thus curbing the appetite." ( Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia "P57". Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring.

Friday, March 21, 2008

Some were speaking in the early Nineties of the "End of HIstory"

In 1989, Francis Fukuyama wrote a seminal article entitled The End of History? He subsequently expanded the thesis of the article into a book, The End of History and the Last Man (New York: Free Press, 1992). The opening of the article essentially stated its thesis (emphasis added):
In watching the flow of events over the past decade or so, it is hard to avoid the feeling that something very fundamental has happened in world history. The past year has seen a flood of articles commemorating the end of the Cold War, and the fact that "peace" seems to be breaking out in many regions of the world. . . .

The triumph of the West, of the Western idea, is evident first of all in the total exhaustion of viable systematic alternatives to Western liberalism. In the past decade, there have been unmistakable changes in the intellectual climate of the world's two largest communist countries, and the beginnings of significant reform movements in both. But this phenomenon extends beyond high politics and it can be seen also in the ineluctable spread of consumerist Western culture in such diverse contexts as the peasants' markets and color television sets now omnipresent throughout China, the cooperative restaurants and clothing stores opened in the past year in Moscow, the Beethoven piped into Japanese department stores, and the rock music enjoyed alike in Prague, Rangoon, and Tehran.

What we may be witnessing is not just the end of the Cold War, or the passing of a particular period of postwar history, but the end of history as such: that is, the end point of mankind's ideological evolution and the universalization of Western liberal democracy as the final form of human government.

NME, November 13, 1993 (emphasis added):
THE KLF's Bill Drummond and Jimmy Cauty released their K Foundation/Red Army Choir collaboration 'K Cera Cera (War Is Over If You Want It)' as a single in Israel last week.

The pair originally vowed only to release the track once "world peace has been achieved"* but decided to make a limited issue in celebration of the peace deal between the Israeli government and the PLO.

The 3,000 copy limited release, which has the title in English, Arabic and Hebrew on its cover, was made available by mail order to readers of one Israeli paper and one Palestinian paper through Israeli record label NMC.

Quoted in Israel's leading daily 'Yediot Ahronot', Drummond said, "Only a few days after the production (of the single) was finished, I turned on the TV and saw Itzhak Rabin and Yasser Arafat standing next to each other in front of the White House. I was very moved. It was like something you never dream would happen suddenly being realised. I phoned Jimmy and we decided to release the limited edition. For us, it's a sort of tribute."
*The London Times inferred that the announcement that the recording would be released once "world peace had been achieved" meant, "[t]hat is, presumably never."

"Priceless" political expression

In Master Card Int'l Inc. v. Nader 2000 Campaign Committee, 2004 U.S. Dist. LEXIS 3644, *42, 70 U.S.P.Q.2D (BNA) 1046, Copy. L. Rep. (CCH) P28,781 (S.D.N.Y. 2004), the court granted the motion for summary judgment filed by the defendant, Ralph Nader's 2000 Presidential Campaign Committee, and dismissed plaintiff Mastercard's lawsuit, which alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard's "priceless moments" television ads infringed on Mastercard's copyright in those ads. The court concluded:

The Nader Ad does add something new and qualifies as a "transformative" work. Whether it "comments" on the original is the issue in question. MasterCard's message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be "purchased" or are "priceless." Hence, "there are some things that money can't buy." This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card--"for everything else, there's MasterCard." Ralph Nader's Political Ad attempts to show various ways [*43] different Presidential candidates can be bought in the "big-money arena of Presidential politics" (Def's Mem. in Supp. Summ. J. 27) and contrasts the "priceless" truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, "which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks." Id. This commentary "may reasonably be perceived." The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader's Political Ad is sufficiently a parody for the purposes of a fair use analysis, and consequently, is transformative. (footnote omitted)
William Patry on political expression using copyrighted works.

According to the March 7, 2008 edition of the Courts Consumer Electronics Daily, Judge Pierre Leval, speaking on the Wednesday just two weeks ago at the State Bar of California's annual Copyright Office Comes to California event in San Francisco, explained that the lower courts had been making a mess out of the fair use doctrine
until Justice David Souter's "magnificent opinion in Campbell v. Acuff Rose" in 1994, Leval said. The ruling followed Leval's analysis in explaining that the key questions in fair use are whether a work accused of infringing has a "different objective" from the plaintiff's, and so is "transformative," and whether it competes with the original work, the judge said. The fair-use debate is polarized between "extremist points of view," including a copyright-enforcement "protectionist" position that criticizes Campbell and the 9th Circuit decision in Perfect 10 v. Google as protecting "perfect copies as fair use," Leval said. Perfect 10, which allowed Google to present searchers with thumbnail versions of Perfect 10 photos of naked women, has been called "a triumph of the mind sound bite over reasoned analysis," but "to the contrary," it's "a truly thoughtful and reasoned opinion," he said. Of course an exact a copy can be a fair use, Leval said: Otherwise, a museum wouldn't be free to use small copies of famous paintings like the Mona Lisa on wall signs and floor maps to send visitors to the originals. Newspapers have to be able to publish images of stolen paintings, and publishers must be able to decide whether they lawfully can distribute investigative articles by looking at them, without determining whether a writer used the deceit sometimes needed to get copyrighted documents to write them, he said. "The free expression camp" at the other end of the spectrum also is off-base in contending that copy-making should be protected unconditionally as freedom of speech, Leval said. Getting rid of copyright would "fatally damage" creation, he said. Even "moderates" make "exaggerated" complaints that the standards for fair use are too loose to make outcomes predictable enough, Leval said. A shifting terrain is bound to create some uncertainty, but "bright line" rules might not be worth the bad results they would produce, he said. (hyper links added)

Judge Pierre Leval on what constitutes a transformative use

From the Patry Copyright Blog:
In 1990, Judge Pierre Leval wrote his path breaking article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990), in which he proposed the term "transformative use,":"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."
Nothing substitutes for Leval's article, of course, but Fairly Useful summarizes it well and opines that the article "should be seen as the doctrinal foundation fair use jurisprudence since in the" post-Campbell v. Acuff Rose era.

Thursday, March 20, 2008

Parody v. Political Expression

A reworking of the heart of a copyrighted, creative work for commercial purposes to parody the copyrighted work is fair use. Then why wouldn't the same be true for the reworking of a copyrighted work to express a political point of view? Does fair use privilege parody over political expression?

Authorship in Video Games

From Flash of Steel, via JR Enterprises Incorporated:
Yesterday I was exchanging emails with a friend who has moved into game development and he talked about how collaborative the process is; how the idea of the lead designer we grew up with is increasingly irrelevant. You still need a central repository to bring all these ideas together, but design is messy. Still, there is a tendency for game journalists and gamers to attach a name to the development process. Miyamoto, Jaffe, Carmack…these are our movie stars and there is a lot to be gained in putting them up front. The idea of the Game God persists even as the industry becomes less dependent on original breakthrough designs and more dependent on a consistent collection of talent.

Tuesday, March 18, 2008

World peace, presumably, will never be firmly established

From the September 12, 1993 edition of the Sunday London Times:
There is no new product from the K Foundation to replace it, either. The initial ads did herald a recording, K Cera Cera, a version of Que Sera Sera, made with the Red Army Choir. But as the small print explained, the track was unavailable and would remain so until ''world peace has been firmly established''. That is, presumably, never.

The KLF's "Maverick Stunts"

From a 2005 interview with Bill Drummond, the writer's summary of Drummond's "Maverick Stunts":

1986 Having been the manager of Julian Cope's group The Teardrop Explodes, Drummond records a solo album, The Man, containing the track "Julian Cope is Dead".

1992 The KLF announce their retirement by machine-gunning that year's Brit Awards audience with blanks, causing the conductor Georg Solti to flee in terror.

1993 Alongside the £20,000 Turner Prize, The KLF offer the winner Rachel Whiteread £40,000 as the worst artist of the year.

1994 The K Foundation makes the biggest cash withdrawal in British banking history, £1m, and burns it. A film, Watch The K Foundation Burn a Million Quid, tours the UK. The final screening is at a car park off London's Brick Lane.

1995 The K Foundation sign a contract with the artist Marc J Hawker, agreeing to a 23-year moratorium on all K Foundation activities. The contract is signed on the bonnet of a rented car which they then push over the edge of a cliff at Cape Wrath.

1995 With 6,250 cans of Tennent's Super, Drummond, Cauty and their collaborator Gimpo drive around London on Christmas Eve distributing alcohol to street-drinkers and the homeless.

1997 The KLF reform for a show (1997 - "What the Fuck's Going On?" ) at the Barbican where they perform their single "Fuck The Millennium".

1999 Drummond and Cauty announce their intention to destroy Stonehenge with their JCBs, as a "gift to the nation".

2002 Drummond puts up 100 posters in Liverpool during the Biennial art fair, offering to have sex with anyone for £10,000. There are no takers.

conflicts between authors and publishers

In connection with the JibJab video using "This Land is Your Land," Lawrence Lessig points out that Woody Guthrie's family is untroubled by the video's use of the song. Ah, but Woody Guthrie's family doesn't own the copyright:
As Mark Frauenfelder and others have documented, the Guthrie family and probably Woody himself think the JibJab parody just fine. In the words of Grandaughter Cathy Guthrie (pictured here), "this parody was made for you and me."

But here's the thing: much of the JibJab Brouhaha was actually caused by a lack of author's rights....

I'm not speaking heresay: the point is that who controls the rights can matter as much, if not more, than what the rights are. Here, its publisher "The Richmond Organization" (TRO) and not the family, who controls the rights to "This Land." And Richmond's reaction was the opposite of Cathy's: "The damage to the song is huge," said Kathryn Ostien, director of copyright licensing, because "this puts a completely different spin on the song." (Why "different spin" = "huge damage" I'm not sure).

Yes, authors and creators can suffer fits of pique that can hurt the markets for secondary works. But their reasons for asserting copyright can be the subject of reasonable disagreement (example, colorized films). All that's a peppercorn compared to the historic abuses of copyrights controlled by publishers and disseminators.

The present tension between consumers and copyright is predated by a centuries-old war between publishers and authors. Those who read this site ought think carefully about how often the public and authors are actually on the same side.

This conflict between publishers and authors is exemplified of course too by the conflict between "U2" and Negativland, especially as expressed by the Edge.

Peter Jaszi, in "Toward a Theory of Copyright: The Metamorphoses of Authorship,'" 41 Duke L.J. 455, 468-469 (1991)(footnotes omitted)(pdf), identifies the very source of this conflict in the passage of the first copyright act:

"Authorship" first entered the domain of law in 1709, with the passage of the first copyright statute, the English Statute of Anne. While new to law at this time, however, the terminology of "authorship" had already acquired meaning in the realms of literature and philosophy. These early associations of the "authorship" concept helped to establish its place and ensure its persistence in the copyright doctrine.

Although labelled "An Act for the Encouragement of Learning," the statute was, in fact, promoted primarily by the London-based fraternity of British publishers (then designated "stationers" and "booksellers"). Throughout the previous century, the publishers had the book trade comfortably to themselves as the result of a bargain struck between the Crown and their venerable publishing guild. The Honorable Company of Stationers had received a monopoly over publishing in exchange for a promise of rigorous self-censorship, including the suppression of treasonous and seditious materials. By the century's end, however, this old order had effectively collapsed, as established publishers faced unprecedented competition from domestic and foreign pirates. Their preferred solution was to solicit legislation that gave the "proprietors" of "copyrights" a right of action against those who trespassed on their literary property. The publishers expected, of course, that in most instances, they would be the "proprietors."

As the campaign for new legislation gained force, however, a problem of legislative draftsmanship remained: How would the new statutory rights get into the hands of the publisher/proprietors? Although the rights could have been awarded to the publishers directly, the chosen solution was to vest the rights initially in "authors," with the understanding that the publisher eventually would assume control. Before and after 1710, publishers typically purchased writers' manuscripts for lumpsum payments; such a purchase included the writer's "right of first publication," and after the statute, it also entailed a transfer of the copyright itself.

Monday, March 17, 2008

2008 NMC Symposium on Mashups - Online

Online 2008 NMC Symposium on Mashups
Location Second Life and Adobe Connect
Host The New Media Consortium
Conference Dates Tue, 04/01/2008 - Thu, 04/03/2008
Registration Dates Fri, 03/07/2008 - Mon, 03/24/2008


April 1-3, 2008

The NMC Symposium on Mashups will itself be a mashup of venues, with sessions taking place in the 2D web environment of Adobe Connect, with support by LearningTimes and selected activities in the 3D world of the NMC Conference Center in Second Life (all Second Life events will be streamed back into the Connect environment).

* * *


. . . The NMC Symposium on Mashups will explore the learning applications of data mashups.

Mashups, web applications that combine data from more than one source via a single, unified tool, are often about data visualization, but they can also be creative products of other kinds—indeed, the term “mashup” originates from the music industry — such as assorted film and music clips assembled into parodies of well-known productions, for instance.

Data mashups are powerful tools for navigating and visualizing datasets; understanding connections between different dimensions such as time, distance, and location; juxtaposing data from different sources to reveal new relationships; and other purposes.

In the Symposium we will explore both the tools for generating mashups as well as the applications of them to teaching and learning.

The symposium will take place in the Adobe Connect web environment, with support from LearningTimes and selected sessions originating from the virtual world of Second Life. All events in Second Life will also be streamed into Adobe Connect.

Sessions, which will be conducted live, can incorporate a variety of visuals and rich media, and are generally about 45 minutes in length, with about one-third to one-half that time devoted to dialog with participants using the chat and audio tools of the environment.

Is fair use a question of law or a question of fact?

“[W]here the case is tried on stipulated facts, or both sides cross-move for summary judgment, there is no reason why the court may not decide the issue as a matter of law; indeed, fair use is frequently decided on summary judgment. On rare occasions, courts have decided fair use on a rule 12(b)(6) motion to dismiss for failure to state a claim. 4 Patry on Copyright § 10:159 (citations omitted; emphasis added).