EFF Doubles Down on Barlow Declaration — “Cyberspace, like physical space, is a world in which people act like people; and unfortunately, this includes criminal, morally depraved, or just plain dumb behaviors, some of which were not possible prior to the opening of this new frontier. Human trafficking, identity theft, intellectual property theft, cyberstalking, the expansion of yellow journalism, terrorist propaganda, and child abuse are all beneficiaries of Barlow’s sacred “home of Mind.” We have to accept that and deal with it; and absent our participation in society through government, I am at a loss to know what realistic alternative might exist. Letting the six guys who own the most popular sites make all the decisions? Because that’s what’s happening now. Governance of cyberspace exists; it’s written in the Terms of Service, and you didn’t vote for anyone who wrote those terms.”

Building the Sets of Middle-Earth for the Battle of the Five Armies — “The creation of a film like Battle of the Five Armies is not only an adaptation of the source text, but hundreds of adaptations within the production itself. Howe and Lee produced thousands of Middle-earth illustrations, which are then adapted by Hennah into detailed designs, which are then adapted into practical sets. The illustrations are adapted by costume designers Anne Maskrey and Bob Buck who dress the actors, and then those actors are filmed in 3D by Lesnie at 48-frames-per-second using Red Epic digital cameras, and that imagery is augmented with the visual splendors (and horrors) created by Weta Digital, and on and on it goes.”

Reps. Chu and Collins Praise Economic Contributions of Core Copyright Industries — Representative Chu says of the recently released report, ““Employing more than 5.5 million people, our creative industries contributed more than a trillion dollars to our economy last year. This is a significant portion of our GDP, none of which would be possible without strong copyright protections. As co-chair of the Congressional Creative Rights Caucus, I am so proud of the talented minds and innovative workers that produce arts and entertainment admired around the world. We need to continue working to guarantee the protection necessary to help this industry continue to thrive.”

Flickr Sorry for Selling Creative Commons Photos as Wall Art, Will Stop and Refund All Sales To Date — Flickr originally rolled out a feature allowing Creative Commons images that were licensed to be reused commercially to be sold as wall art through the site, but the plan was met by outrage by a number of photographers.

2015: The year of blocking injunctions? — Eleanora Rosati notes, “Improving the legal framework for online enforcement of IP rights, notably copyright, has been probably the most debated policy topic in a number of jurisdictions in 2014, and will likely be so also in 2015. The recent decision of the Court of Justice of the European Union (CJEU) in Telekabel [here and here] clarified once and for all that blocking orders are compatible with EU law, and that it is left to the concerned internet service providers (ISPs) to determine how best to achieve the result sought by the relevant rightholder(s).”

Even after two courts in California, one federal and one state, determined in September and October that California state protection of pre-1972 sound recordings includes an exclusive right of public performance, the conventional wisdom seemed to be that the decisions would not stand for too long. The public policy ramifications were too great for the holdings to survive on appeal or through further litigation. But then in November, a federal court in New York came to the same conclusion, and all bets seemed off.

The background of the litigation and issues involved are discussed more fully in the above two links, but very briefly: Flo & Eddie, a corporation made up of two founding members of the Turtles, sued satellite radio provider Sirius XM in federal court in California, New York, and Florida for infringement of their public performance rights under state and common law. The major record labels sued Sirius XM in state court in California alleging the same. Flo & Eddie have so far been granted summary judgment on the issue in California and New York; the record labels have won approval of a jury instruction stating California law grants public performance rights in sound recording owners.

Sirius XM changed legal teams days after the New York decision.1 The new team immediately moved for reconsideration in all three proceedings, calling attention to not-yet-cited precedent that it claimed stood for the proposition that pre-1972 sound recordings did not include an exclusive right of public performance.

The case it relied most fully on was RCA Mfg. Co. v. Whiteman, a Second Circuit decision from 1940.2 In Whiteman, a maker of records sought to restrain their broadcast by a radio station.3

The case is one of the earliest to address property interests in sound recordings, the technology itself still in its early stages—state law would not begin protecting sound recordings for two decades, federal law, three.4 Musical compositions—the underlying songs that are protected by copyright separately from sound recordings—have had public performance rights protected under federal law since 1897, but even then, it was only until the 1920s that courts recognized that public performance included broadcast by radio.5 The case was, in other words, decided when the law concerning sound recordings was quite primordial.

The Southern District Court of New York was the first to respond to the reconsideration motion from Sirius, and it did not sound happy. In a December 3rd order directing a response to the reconsideration motion from plaintiffs Flo & Eddie, the court said, “Whiteman plainly should have been addressed the first time around, and it must be dealt with now—it is, after all, a Second Circuit decision (albeit a pre-Naxos decision) discussing key issues in this case.” It concluded even more bluntly:

I will not accept reply papers; I will also not hold oral argument. I am well aware of the ramifications of my original ruling, which I did not reach lightly. But in the end, this court does not make policy; I deal in law. Sirius has had its say about the law; Flo & Eddie will weigh in in writing; and I will decide whether or not to reconsider my original ruling.

Two days later, the California state court, where the plaintiffs are the major record labels, considered the motion for reconsideration. The court did not change its original decision that California law recognizes a public performance right in sound recordings, though it did certify the question for interlocutory appeal.6

It made short work of the arguments from Sirius. It says “Whiteman was limited to New York common law” while the original decision here was based on the text and structure of California statutory law. In addition, it notes that Whiteman “was expressly disapproved in Capitol Records v. Mercury Records Corp.” which held that Whiteman‘s conclusion “is not the law of the State of New York.” The court was equally unpersuaded by Sirius’s reliance on Supreme Records v. Decca Records, a 1950 California decision that the court says “involved the imitation of particular arrangements of a song” rather than addressing “the issue of public performance rights in sound recordings.”

But the worst blow to Sirius’s morale was yet to come. On Friday, December 12, the New York court denied the motion for reconsideration in a remarkably devastating critique of the arguments advanced. It begins by noting, “Obviously Whiteman is a very old case, and does not represent any ‘intervening change of controlling law,’ so the argument must be that the Court’s failure to apply Whiteman constitutes ‘clear error.'” But, says the court, “The only clear error in this case is O’Melveny’s [Sirius’ counsel].” It continues:

Sirius’s former counsel had two perfectly good reasons not to argue the lack of any public performance right on the basis of Whiteman: (1) Whiteman does not hold that New York does not recognize a public performance right as part of the common law copyright in sound recordings; and (2) its actual holding – which is that the sale of sound recordings to the public constituted “publication,” which divested a creation of any common law copyright whatsoever – is no longer good law, and has not been for 60 years.

The court goes on to say that the crux of Whiteman was whether the sound recording was published, and therefore lost any rights it had. It notes that the court did not specify what exactly those rights were—whether they included a right to publicly perform or not.7 In any event, the court adds, Whiteman has since been overruled by New York courts.

Sirius also asserted a Constitutional challenge to Flo & Eddie’s claims based on the Dormant Commerce Clause. The court’s clarity here concerning property and commerce is worth quoting:

Sirius does not dispute that the reach of the Dormant Commerce Clause is only to state actions properly characterized as “regulations.” Instead of explaining how liability for common law copyright infringement constitutes a regulation, Sirius dodges and misconstrues the issues.

The question is whether the law at issue – common law copyright – constitutes “regulation.” In the one case Sirius does cite applying the Commerce Clause to a judicial finding of liability the law involved [] a California statute requiring pre-approval for marketing cosmetic products. The cases holding that a law may violate the Dormant Commerce Clause because of its “practical effects” on interstate commerce each involved state liquor-pricing schemes. All of those state laws -pharmaceutical approval and liquor pricing laws – are classic instances of states exercising their regulatory power, and are very different from this case, where the issue is protection of property rights.

Protecting Flo and Eddie from the theft of its property is not “regulation”; a simple example illustrates the point. Suppose, instead of stealing Flo and Eddie’s property rights in the sound recordings, someone stole its company car, which was then used to operate an interstate taxi service. The Dormant Commerce Clause obviously would not bar Flo and Eddie from maintaining an action at common law for conversion of the car. And that would be true even though the action, and the return of the car and the end of the taxi service, would affect interstate commerce. State laws barring theft do not violate the Dormant Commerce Clause.

The court ultimately defers on certification of this issue for interlocutory appeal.

That leaves pending the motion for reconsideration in the California federal court (a proposed motion seeks hearing January 26, 2015) and the motion for summary judgment on the same issue in Florida.

Thus far, things have not gone well for Sirius. But it may be the case that the issues in the cases are resolved legislatively before they are resolved through litigation—the Copyright Office has already reported on federalization of pre-1972 sound recordings and taken up the issue in a recent round of public comments, and the House Judiciary Committee considered the issue during a two part hearing this past June. Proposed legislation that would bring these recordings within the compulsory license that Sirius relies on for digital performances of sound recordings (stopping short of full federalization) was introduced this past session.

Many sound recordings made before 1972 remain economically valuable, as this series of litigation demonstrates. At the same time, there are numerous issues remaining to be resolved if federalization is the goal. But in the interim, the recognition by several courts of the property rights of creators to the products of their intellectual labors is welcome.

Footnotes

  1. Note, though, that Sirius XM had already done the same for the California federal court litigation prior to the New York decision. []
  2. 114 F.2d 86. Sirius also relies on Supreme Records, Inc. v. Decca Records, Inc., 90 F. Supp. 904 (S.D. Cal. 1950) in its California motions. Sirius also raises a Dormant Commerce Clause challenge in its motions, which I won’t discuss here. []
  3. Though Whiteman is captioned as the defendant here, he was actually the original plaintiff and performer on the records at issue; the court explains how, procedurally, he ended up being the defendant on appeal:

    Before the action was brought Whiteman had filed a complaint against W. B. O. Broadcasting Corporation and Elin, Inc., to restrain the broadcasting of phonograph records of musical performances by Whiteman’s orchestra. By leave of court RCA Manufacturing Company, Inc., then filed the complaint at bar, as ancillary to Whiteman’s action, asking the same relief against W. B. O. Broadcasting Corporation and Elin, Inc., as Whiteman had asked in his action, and in addition asking that Whiteman be adjudged to have no interest in the records of his performances, because of contracts between him and itself. Whiteman thereupon discontinued his action, leaving only the ancillary action in which the judgment on appeal was entered. []

  4. US Copyright Office, Federal Copyright Protection for Pre-1972 Sound Recordings, 2011. []
  5. Twentieth Century Music Corp. v. Aiken, 422 US 151, 158-59 (1975). []
  6. The California federal court denied to certify the same question for interlocutory appeal on November 20. []
  7. I would add that Whiteman appears to make a material error in its discussion. It says, “Copyright in any form, whether statutory or at common-law… consists only in the power to prevent others from reproducing the copy-righted work.” This is clearly not the case, since federal statute had provided a right of public performance to owners of dramatic compositions since 1856, nearly a century prior to Whiteman. []

Flickr’s Wall Art Program Exposes Weaknesses in Licensing Automation — “The fact that a hosting website might exploit a Creative Commons-licensed work for its own commercial gain doesn’t sit right with many content creators who have operated under two assumptions that, as Flickr has shown, are naive. One is that these big Internet sites just want to get users to contribute content in order to build their audience and that they will make money some other way, such as through premium memberships or advertising. The other is that Creative Commons licenses are some sort of magic bullet that help artists get exposure for their work while preventing unfair commercial exploitation of it.”

Authors Guild Opposes Google’s Fair Use Claim in Federal Appeals Court — Last week, a Second Circuit panel heard oral arguments in the Google Books litigation, on appeal after the district court held that Google’s massive commercial operation was a fair use. Here’s the Author Guild’s report on the arguments.

Korean cultural export success rooted in freedom and democracy, industry insiders say — Freedom of expression and a sustainable, professional creative sector go hand in hand, as this report demonstrates. “The mania reaffirmed the success of Korean cultural and creative industries that, industry heavyweights say, owe their accomplishments to the freedom guarded by a democratic society that is seeking to cultivate a creative economy.”

Paying A Legitimate Toll To Ease On Down The Road — “I’m not suggesting that everyone get schooled in the intricacies of copyright law, but that as part of the process of creating and performing shows, students should come to understand that there is a value in the words they speak and the songs they sing, a concept that’s increasingly frayed in an era of file sharing, sampling, streaming and downloading. Creative artists try to make this case publicly from time to time, whether it’s Taylor Swift pulling her music from Spotify over the service’s allegedly substandard rate of compensation to artists or Jason Robert Brown trying to explain why copying and sharing his sheet music is tantamount to theft of his work. But without an appreciation for what copyright protects and supports, it’s difficult for the average young person to understand what this might one day mean to them, or to the people who create work that they love.”

10 FAQs on Twitter (Music Piracy Research Blog) — “What I won’t accept are the weak excuses to justify piracy. That’s all they are. Excuses. Piracy is easy, you get free stuff, and the chance of being caught is slim. That’s it. Don’t forget that when you obtain copyrighted media illegally, someone somewhere is profiting from that. Illegally. Rightsholders are denied money they are legally and morally entitled to. If you are happy to go see ‘Fast and the Furious 12′, or listen to Two/Three/Four Direction, then keep at it. Investment in new talent is down (BPI) because the return on investment has no guarantee anymore. And it looks like the cost of live concert tickets keeps rising in response to music piracy, so if you like concerts, start saving up for 2015.”

“blame the author” — John Degen talks about a “stock free-culture tactic – assert loudly and without any shame that anyone defending copyright hates the user community.”

 

Second Circuit Hears Google Books Case — This week, the 2nd Circuit heard arguments in the dispute between authors and Google over the search giant’s mass digitization program. While this specific dispute has been going on for nearly a decade, the dispute over this issue is at least half a century old. A draft bill for copyright revision in 1964 provided that a copyright owner’s exclusive right to copy included “the right to reproduce the work in visual copies, to make or duplicate sound recordings of it, to make a translation, adaptation, or any other derivative work from it, and to reproduce it in any form in the programming or operation of an information storage and retrieval system.” This language did not appear in the final bill, passed in 1976.

The Strand’s Stand: How It Keeps Going in the Age of Amazon — A fascinating look at the legendary used bookstore in Manhattan.

‘Investing in Music’ report shows record labels invest US$4.3 billion in A&R and marketing — The report shows the significant contributions the global recorded music industry makes to promoting the progress of science and the useful arts.

Electronic Frontier Foundation (EFF) uses copyright law as censorship canard again — “Sutton lists 9 instances in which content was removed for allegedly political reasons via a DMCA notice. Not to minimize any wrongdoing in these particular instances, but has Ms. Sutton bothered to examine the millions of legitimate removals that occur each week worldwide? In any enforcement system there exist errors and potential for abuse, but the the truth is that the volume of legit DMCA notices far outweighs illegitimate ones.”

Virginia Woolf Goes to the Movies — Originally published in 1926, a year before the first talkie, The Jazz Singer, was released, the esteemed author pens a prognostic look at the brand new medium. “Yet if so much of our thinking and feeling is connected with seeing, some residue of visual emotion which is of no use either to painter or to poet may still await the cinema.”

Not a good week for Sirius XM:

While the Court is largely unpersuaded and sometimes baffled by Sirius XM’s repetitive or off-point theories about how reasonable jurists might read an unwritten exclusion into §980(a)(2), the Court will not analyze the potential grounds for difference of opinion because certification of this Order suffers from an even more basic deficiency.

Disney’s global success with ‘Frozen’ took lots of translation, investment — “The company put a huge investment into making the animated film as accessible in Beijing as in Buenos Aires. The movie is translated into 41 languages, which included an international cast of more than 900 people. They worked on 1,300 recording sessions.”

Top 113 Congressional Copyright Review Moments — While the 113th Congress still has a few more days in session before the end of its term, there are no more copyright review hearings planned. Here is a look back at some of the top moments of the past year.

Landmark Trade Deal at Risk Without Strong Intellectual Property Laws — “The nature of the TPP’s IP provisions matter greatly to the United States because America’s competitive advantage in the global economy increasingly lies in innovation-based industries—such as life sciences (pharmaceuticals and medical devices), information and communications technologies, digital services, music and film, aerospace, and advanced manufacturing—that at their core depend on the production, and protection, of intellectual property.”

Fair Use and Market Harm: Use It or Lose It? — Thomas Young has an in-depth look at the Eleventh Circuit’s troubling conclusion concerning market harm in the GSU e-reserves case, one of the issues the publisher plaintiffs are asking the full bench to review in their petition for an en banc rehearing.

Social Media Bots Offer Phony Friends and Real Profit — “‘This all points to social media advertising being one giant bubble,’ said Tim Hwang, chief scientist at the Pacific Social Architecting Corporation, a research group that focuses on bots. ‘Everyone is really happy to say, ‘Look at the numbers that we got, it must have been successful,’ even though the retweets and favs are inflated by bots.'”

The Creepy New Wave of the Internet — Sue Halpern says in the New York Review of Books, “In other words, as human behavior is tracked and merchandized on a massive scale, the Internet of Things creates the perfect conditions to bolster and expand the surveillance state.”

Go back forty-four years, to 1970, when NJ Representative Cornelius Gallagher said much the same thing: “By weaving a web of data representing all of an individual’s experience, it seems to me that we are creating a suffocating sense of surveillance in this country.”1

Footnotes

  1. Fair Credit Reporting Hearings on H.R. 16340 Before the H. Subcomm. on Consumer Affairs of the Comm. on Banking and Currency, 29, 91st Cong. (1970) (Statement of Rep. Cornelius E. Gallagher). Gallagher went on to say, “Files which are economically unfeasible to computerize now will undoubtedly yield to further generations of computing machines in a vast nationwide, even worldwide network of information. The question is no longer science fiction.” []

Almost a month to the day after a California state court became the second court in this fall to recognize a public performance right for pre-1972 sound recordings, the Southern District Court of New York has held that New York State common law also recognizes such rights.

The court on Friday, November 14, 2014, denied satellite radio provider Sirius XM’s motion for summary judgment and ordered it to show cause why summary judgment should not be entered in favor of the plaintiffs Flo & Eddie, the corporation owned by two of the original members of the rock band the Turtles. It did so after concluding, among other things, that “general principles of common law copyright dictate that public performance rights in pre-1972 sound recordings do exist.”

As previously explained, Congress extended federal copyright protection to sound recordings in 1972, but only prospectively, meaning sound recordings made before 1972 would only be protected, if at all, under state and common law. Also, unlike musical compositions, Congress did not provide sound recordings owners with a public performance right under federal law, so a songwriter would get royalties when her song is played, for example, on the radio, but the performing artist would not.

Congress extended to sound recording owners a limited public performance right for digital audio transmissions in 1995. At the same time, it created a compulsory licensing scheme for such transmissions for satellite radio providers.

In recent years, Sirius XM began discounting the amount of royalties it paid under this compulsory license, proceeding under the basis that it didn’t have to pay royalties for performances of pre-1972 sound recordings under federal law.

The satellite provider faced a slew of lawsuits following that decision. SoundExchange, the organization that collects and distributes digital performance royalties under the compulsory license, filed a complaint August 2013 in federal court. A group of music labels sued Sirius XM in California state court in September 2013. And Flo & Eddie filed putative class action suits in California, New York, and Florida.

The Decision

Here, the Southern District Court of New York began its decision by noting that it was undisputed that Flo & Eddie have a common law copyright in their sound recordings. Under New York law, “artists can acquire a common law copyright in ‘any original material product of intellectual labor’—including sound recordings—by expending ‘time, effort, money, and great skill’ in its creation.” Sirius, however, argued that this right only covers reproduction and distribution, not public performance.

The court disagreed, noting initially that this argument has to be resolved by looking “to the background principles and history of New York copyright common law” rather than referring to the federal copyright act. And under the common law, New York has long recognized public performance rights for copyright owners of plays and films.

Sirius’s strongest argument is to ask why then, if recording artists and record labels had the exclusive right to publicly perform their works, they waited decades to assert that right. The court devotes considerable attention in response. First, it can’t infer that “the common law copyright in sound recordings does not encompass all of the rights traditionally accorded to copyright holders in other works” simply because this is the first case to raise the issue. The fact that participants in the recording industry had waited so long simply demonstrates a failure to act, not a lack of an enforceable common law right.

This judicial silence is not unique to the circumstances of this case. The court says, “The Supreme Court, for example, failed to grapple with many fundamental constitutional questions for the first 150 years of the Constitution’s existence.” It cites to the opinion from DC v Heller, where the majority observed that it “first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, and it was not until after World War II that we held a law invalid under the Establishment Clause.”1 Yet we wouldn’t say that proves we don’t have freedom of speech.

The court then turns the tables, saying

An arguably stronger argument can be made that years of judicial silence implies exactly the opposite of what Sirius contends—not that common law copyright in sound recordings carries no right of public performance, but rather that common law copyright in sound recordings comes with the entire bundle of rights that holders of copyright in other works enjoy. No New York case recognizing a common law copyright in sound recordings has so much as suggested that right was in some way circumscribed, or that the bundle of rights appurtenant to that copyright was less than the bundle of rights accorded to plays and musical compositions.

The court also points to federal law as supporting the argument that copyright in sound recordings includes an exclusive right of public performance, saying “if public performance rights were not part of the normal bundle of rights in a copyright, Congress would not have needed to carve out an exception specifically for sound recordings” when it extended protection to them in 1971.

Next, the court responds to the policy arguments raised by Sirius. The satellite provider argued that “affording public performance rights would not serve the underlying purposes of copyright law because pre-1972 recordings already exist and further rights cannot create incentives for the creation of new pre-1972 recordings.” But the court finds that this claim advances a far too narrow view of copyright under both New York and federal law, concluding that rewarding past creativity is just as proper a goal under either statutory or common law copyright as fostering future creativity.

Sirius also calls attention to the potential disruption and administrative difficulties that recognizing public performance rights for pre-1972 sound recordings under the common law could cause. The court is sympathetic to these policy arguments but ultimately unpersuaded.

Sirius may well be correct that a legislative solution would be best. But the common law, while a creature of the courts, exists to protect the property rights of the citizenry. And courts are hardly powerless to craft the sort of exceptions and limitations Congress has created, or to create a mechanism for administering royalties.

What’s Next

In the wake of this decision, Sirius replaced its legal team, which may indicate it is looking at shifting strategy. However, as noted above, two courts in California—state and federal—similarly concluded that California state copyright law includes an exclusive right of public performance for sound recording owners. That increases the likelihood that a decision recognizing such a right survives any potential appeal.

There remains a third lawsuit filed by Flo & Eddie against Sirius XM pending in Florida. Will the court there provide a clean sweep for public performance rights in pre-1972 sound recordings, or will it break rank from the California and New York courts? Even if it does the former (the likelihood of which has increased following the New York decision), I think the court is correct in suggesting “a legislative solution would be best.” Federalization would provide far more consistency in the protection of sound recording owners’ use and enjoyment of their rights; however, such a transition implicates a host of issues, some not readily apparent. The Copyright Office discusses many of these issues in its 2011 report on Federal Copyright Protection for Pre-1972 Sound Recordings. Both the Copyright Office and the House IP Subcommittee are already interested in addressing pre-1972 and other music-related copyright issues; this decision could only serve to motivate them further.

Footnotes

  1. 554 US 570, 625 (2008). []

“Because the more people that touch a story, the more that story touches the world.” In conjunction with the launch of Wheretowatch.com, which provides a slick and easy way to find TV shows and movies online, the MPAA also posted this great look at the people working behind the scenes.

In Twist, Publishers Appeal Their ‘Win’ in GSU Copyright Case — The publishers primarily want review of the 11th Circuit’s view that fair use should not be media neutral, agreeing with Judge Vinson’s remarks in his concurrence that “The use of a copyright-protected work that had previously required the payments of a permissions fee does not all of a sudden become fair use just because the work is distributed via a hyperlink instead of a printing press.”

Mission Creep-y — Public Citizen this week issued a scathing report on Google’s practices, concluding the company “is so rapidly expanding both its information-collecting capabilities and its political clout that it could become too powerful to be held accountable.” The public interest group examines both Google’s increasingly pervasive surveillance of the world’s population along with its rapidly expanding hard and soft lobbying and PR.

Taylor Swift — There was a bit of discussion this week about Swift. Here are a few of my favorite takes on it. Robert Levine on why Swift’s decision makes sense for Swift and why it’s not the end of the world if we respect that. The consistently quotable Taylor Swift and the Myth of the Mean Greedy Artist (e.g., “You are not helping the underprivileged by making it impossible for anyone who isn’t already rich and privileged to take up artistic careers.”). Phillip, I disagree, which points out that “cutting out the middle man” should more accurately be described as “taking on the middle man’s responsibilities”; “So yeah, you can do a lot of things without needing a record company, but if you want to do music full time and make a living, maybe even put a couple bucks away for retirement or your kids college fund, then you are going to need help from a lot of people.” Or, finally, Blake Morgan on CNN, figuratively dropping the mic on the Swift discussion.

In a recent article in Newsweek, cultural historian Peter Baldwin (who recently published The Copyright Wars: Three Centuries of Trans-Atlantic Battle, reviewed by Robert Levine at Columbia Journalism Review), says of early US copyright law, “More important, it refused to grant foreign authors protection. *** Convinced that a fledgling nation, eagerly building its cultural infrastructure, would be best served by having the Old World’s heritage freely on tap, America’s founders not only shamelessly pirated European culture, but also proudly hailed their pilfering as pursuit of the Enlightenment ideal of an educated democratic citizenry.”

Given that this is an excerpt published in a magazine, I can’t see what sources Baldwin relies on to make these claims, but having studied a bit of copyright history myself, this strikes me as inaccurate on a number of levels. First, to point out that the first copyright act did not grant foreign authors protection makes the fact sound remarkable when it was anything but. This was generally the case with most laws at the time. And to say the US “refused” to grant protection to foreign authors makes it sound like a far more deliberate and deliberated choice than it actually was. There is no recorded debate about the substance of any provisions of the first copyright act—the bill itself was essentially the same as England’s Statute of Anne and the state copyright acts that preceded the Constitution.1 Indeed, the only deliberate choice seems to have been the decision to pass separate copyright and patent bills; initial proposals had the two combined. This was done at the urging of South Carolina representative Aedanus Burke, who told his fellow Congressmen, “several gentlemen had lately published the fruits of their industry and application, and were every hour in danger of having them surreptitiously printed.”2 Burke thought a separate copyright bill could be passed easily, saying “a short bill would be sufficient for the purpose, because it is almost as easy to ascertain literary as any other kind of property.” Patent legislation, on the other hand, “would occasion a good deal of discussion.” A bill sped through the House and Senate and was signed into law by President Washington a mere four months after Burke’s remarks.

Second, while some at the time may have “proudly hailed their pilfering,” this was far from a universally shared belief. In the century following the first US copyright act, you can find numerous examples of Americans calling for recognition of copyright beyond national borders, and serious legislative efforts to remedy this defect began as early as the 1830s. One of the earliest was a result of an 1837 petition of British Authors to a US Senate Committee seeking protection of their property in the United States. And while, yes, one Senator (James Buchanan from Pennsylvania, who, coincidentally, would go on to become one of the worst Presidents in US history) talked about the importance of focusing on “the interest of the reading people of the United States”, and how “cheap editions of foreign works” brought them “within the reach of every individual,”3 there was more discussion about the detriments of a lack of protection.4

Kentucky Senator Henry Clay, who presented the petition to the Senate, said, “Of all classes of our fellow-beings, there is none that has a better right than that of authors and inventors, to the kindness, the sympathy, and the protection of the Government. And surely nothing could be more reasonable than that they should be allowed to enjoy, without interruption, for a limited time, the property created by their own genius.” Clay concluded his remarks by saying, “Indeed, I do not see any ground of just objection, either in the constitution or in sound policy, to the passage of a law tendering to all foreign nations reciprocal security for literary property.” South Carolina Senator William Preston observed that “there was a large and meritorious class of authors in this country, who had a direct interest in securing to the authors of Great Britain the copy-right to their works, because copies of these works were sold without the expense of a copyright, and thus came in free and injurious competition with the works of American authors.”

In the years following, several groups of American authors added their voices in support of international copyright protection. On February 4, 1837, thirty US citizens (including telegraph inventor Samuel Morse) submitted a petition “Praying an alteration of the Law regulating Copyrights.” The petitioners wrote that “they believe native writers to be as indispensable as a native militia” and echoed Preston’s remarks that “our own authors are unable to contend with foreigners who are paid elsewhere.” They concluded by calling for international copyright protection to, among other goals, secure the public “against a discouraging monopoly.” A second petition was submitted by “a number of citizens of Boston” April 24, 1838 and signed by 130 individuals. The petition urged passage of an international copyright law, asserting it was “essential to the encouragement and development of American literature.”

These efforts were unsuccessful, as were other pushes for international copyright law in the 1850s and 1860s.5 But the motivation persisted. The following is an excerpt from Brander Matthews‘ 1890 article, The Evolution of Copyright, that demonstrates the pragmatic nature of this development as well as calls for further improvement.

In the beginning the sovereign who granted a privilege or at his caprice withheld it, could not, however strong his good will, protect his subject’s book beyond the borders of his realm; and even when privilege broadened into copyright, a book duly registered was protected only within the state wherein the certificate was taken out. Very soon after Venice accorded the first privilege to John of Spira, the extension of the protection to the limits of a single state only was found to be a great disadvantage. Printing was invented when central Europe was divided and subdivided into countless little states almost independent, but nominally bound together in the Holy Roman Empire. What is now the Kingdom of Italy was cut up into more than a score of separate states, each with its own laws and its own executive. What is now the German Empire was then a disconnected medley of electorates, margravates, duchies and grand-duchies, bishoprics and principalities, free towns and knight-fees, with no centre, no head and no unity of thought or of feeling or of action. The printer-publisher made an obvious effort for wider protection when he begged and obtained a privilege not only from the authorities of the state in which he was working but also from other sovereigns. Thus when the Florentine edition of the Pandects was issued in 1553, the publisher secured privileges in Florence first, and also in Spain, in the Two Sicilies and in France. But privileges of this sort granted to non-residents were very infrequent, and no really efficacious protection for the books printed in another state was practically attainable in this way. Such protection indeed was wholly contrary to the spirit of the times, which held that an alien had no rights. In France, for example, a ship wrecked on the coasts was seized by the feudal lord and retained as his, subject only to the salvage claim. In England a wreck belonged to the King unless a living being (man, dog or cat) escaped alive from it ; and this claim of the crown to all the property of the unfortunate foreign owner of the lost ship was raised as late as 1771, when Lord Mansfield decided against it. When aliens were thus rudely robbed of their tangible possessions, without public protest, there was little likely to be felt any sense of wrong at the appropriation of a possession so intangible as copyright.

What was needed was, first of all, an amelioration of the feeling toward aliens as such ; and second, such a federation of the petty states as would make a single copyright effective throughout a nation, and as would also make possible an international agreement for the reciprocal protection of literary property. Only within the past hundred years or so has this consolidation into compact and homogeneous nationalities taken place.

***

The United States of America is now the only one of the great powers of the world which absolutely refuses the protection of its laws to the books of a friendly alien. From having been one of the foremost states of the world in the evolution of copyright, the United States has now become one of the most backward.

A year after this article was published, the US passed the International Copyright Act, which for the first time conditionally extended copyright protection to foreign authors.

Footnotes

  1. Oren Bracha, Commentary on the U.S. Copyright Act 1790 (2008). []
  2. Gales & Seaton’s History, pp. 1117-18 (January 25, 1790). []
  3. Senator Buchanan’s remarks also included an early version of the “piracy is great exposure” claim, saying, “But to live in fame was as great a stimulus to authors as pecuniary gain; and the question ought to be considered, whether they would not lose as much of fame by the measure asked for, as they would gain in money.” []
  4. Gales & Seaton’s Register of Debates in Congress, 24th Congress, 2nd Session, 670-71 (Feb. 2, 1837). []
  5. William Patry, Copyright Law and Practice (1994). []

Exclusive: Taylor Swift on Being Pop’s Instantly Platinum Wonder… And Why She’s Paddling Against the Streams —

But all I can say is that music is changing so quickly, and the landscape of the music industry itself is changing so quickly, that everything new, like Spotify, all feels to me a bit like a grand experiment. And I’m not willing to contribute my life’s work to an experiment that I don’t feel fairly compensates the writers, producers, artists, and creators of this music. And I just don’t agree with perpetuating the perception that music has no value and should be free.

Giorcelli on Italian Opera & Copyright — A fascinating article that looks at empirical data on Italian operas created between 1790-1900, a time period where Italian states were adopting copyright laws at different times. The authors found that adoption of copyright led to a “significant increase” in both quantity and quality of operas created.

Fall of the Banner Ad: The Monster That Swallowed the Web — “Because they are so ineffective, banner ads are sold at low prices for high volume, which means to make any money from them, sites need to pull in major traffic. This business model instilled the idea that page views were a paramount goal of the web, thus spawning millions of low-rent, me-too sites bent on getting your click.”

NPPA Member Justin Cook Reaches Agreement with UNC — The University had originally claimed that since it had found Cook’s photo on the internet, it assumed it was free to use.

Police In Germany Are Trying To Stop Armed Warfare Between Rival File-Sharing Gangs — Yeah, but if you can’t compete when your business is set on fire, than perhaps your business model is outdated.

The Psychological Comforts of Storytelling — The Atlantic looks at why humans have been telling stories for thousands of years and why that’s important.

George R. R. Martin’s Sister: The Economics of Being a Writer — “The implications of this growing inequity for the writing industry are this: in the future, you will need to either a have a wealthy patron, or already be wealthy if you wish to become a writer. Indeed, this is not merely a question for the future; it is the grim reality facing working class and poor writers now.”

I got a rock.

Charlie Brown (1966).

Old Masters — A fantastic series of vignettes from the New York Times Magazines of individuals over the age of 80, many of them artists and craftspeople, who are still hard at work.

Will Google finally admit search a factor in online piracy? — This is the question Ellen Seidler asks of the search giant, which had long maintained that search was not a factor in online piracy. However, after a recent tweak in its algorithm to downgrade sites receiving large numbers of DMCA takedown requests, traffic to those sites has plummeted.

Taking Pictures: A Way for Photographers to Protect Their Work — The New Yorker profiles photojournalist Yunghi Kim, who over the years has documented events and conflict in places like Somalia, Rwanda, Kosovo, and Iraq, and who has seen first hand the damage online infringement causes to photographers trying to bring these photos to the public.

No Lemonade for Aereo’s Lemons — Devlin Hartline looks at the recent decision involving streaming service Aereo, enjoined by a court that rejected its latest argument that it was a “cable service” under the Copyright Act and thus eligible for a compulsory license (immunizing it from copyright liability).

Copyright at Common Law in 1774 (via the 1709 Blog) — An important contribution to the history of copyright. Tomas Gomez-Arostegui presents a compelling case that the “revisionists” who’ve argued in recent decades that a seminal decision in 18th century England held copyright was solely a creature of statute are wrong.

Back to the Future Wouldn’t Have Been the Same Without Spielberg — The film might have been called “Spaceman from Pluto”, for one thing.

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