History is fascinating, but I’m not a historian. That’s one of the reasons I use footnotes on this site — it’s a way to “show my work” so that readers can see the basis for factual claims I make, including historical claims. And anyone who shares this fascination with history knows how common it is to find inaccurate, misleading, or just plain wrong claims.

There’s several problems with bad history. Inaccurate history is wrong on its face. We as a society value truth over falsity. And our understanding of history can be both a powerful tool for positive change – “Those who cannot remember the past are condemned to repeat it.” 1George Santanaya, The Life of Reason; or the Phases of Human Progress (1905). – or an ideological weapon – “Who controls the past controls the future: who controls the present controls the past.” 2George Orwell, 1984 (1949).

Second, using inaccurate history to advance an argument should send up red flags. If historical claims are sloppy, than it’s reasonable to question what other parts of an argument are sloppy. And if history is deliberately misstated, than it’s entirely fair to wonder about a hidden agenda.

Copyright and History

Since copyright is a legal doctrine, much of what is written about it is by lawyers, jurists, and legal scholars — not historians. Lawyers are advocates, and thus, more often than not, use history more as a tool for arguing a particular interpretation of a legal doctrine rather than studying it as a field in and of itself. That’s not to say that there aren’t excellent legal historians out there; it’s just imperative to recognize the limitations of historical research from nonhistorians, particularly those with a legal background.

Especially when inaccuracies have no problem being repeated and spreading in legal scholarship. Law professor Justin Hughes has observed this phenomenon in the IP field:

The lawyer—hence, most legal academics—prepares just enough precedent to convince. And that may produce one of the little oddities about legal scholarship. Instead of researching and citing primary materials, intellectual property scholarship frequently refers only to other legal scholarship for evidence of nonlegal data. As I will show, the practice of citing only legal scholarship for evidence of nonlegal data means that a few casual but incomplete historical claims by a few respected legal scholars can get replicated through the system—and beyond. And this has a rather twisted effect: a wonderfully heartening development— nonspecialists engaged in a more open, more popular discourse about copyright—gets accidentally co-opted into repeating these historically doubtful claims. 3Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006).

It seems to me that there are two general purposes to this historical revisionism. One is an appeal to nostalgia: copyright law at the dawn of the United States represented an ideal version of the law, with correctly recognized purpose and appropriately balanced means. Somewhere along the line, we’ve lost sight of how copyright should work. If we could only go back to the romanticized version of what the Framers clearly intended, society and creators would be much better off. 4See, for example, James Boyle, The Public Domain: Enclosing the Commons of the Mind, pg. 23 (2008): “These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom… It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them— Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term”; Gerry Canavan, The founding fathers had copyright right, Independent Weekly (May 27, 2009); Robert Darnton, video (Dec 11, 2009):”The founding fathers got it right, and Hollywood got it wrong.”

The second is a legal argument: copyright skeptics disagree with the choices Congress has made in shaping copyright law. Perceiving a lack of power to influence Congress, they play the trump card: the Constitution. If you can successfully argue that the language or intent of the Copyright Clause constitutionally limits what Congress can do, then you can get a court to strike down those parts of copyright law you disagree with without having to go through that pesky legislative process. 5While there is plenty of scholarship advancing this argument, it owes much to Lawrence Lessig, who put the argument into action by bringing four legal cases in the past decade to challenge recently enacted copyright laws on constitutional grounds: Eldred, Golan, Kahle, and Luck’s Music Library. All four cases failed, and the Supreme Court in Eldred commented that petitioners had crafted what was largely a disagreement over Congressional policy behind a “facade” of “inventive constitutional interpretation.”

Last week, I tackled the historically-based trope that Hollywood was founded on piracy, but I’m certainly not the first to counter inaccurate historical claims in copyright scholarship. Previously, I noted Thomas Joo’s work on the weak historical claims of free culture scholars, especially regarding digital sampling. Hughes has written about how “incomplete historical claims” have been advanced in arguments about the “propertization of intellectual property.” 6Hughes at 1083. Schwartz and Treanor have noted that “the evidentiary support is very thin” for originalist arguments by “IP Restrictors” regarding the Copyright Term Extension Act. 7Paul M. Schwartz and William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 Yale Law Journal 2331, 2378 (2003). In his article, Who Cares What Thomas Jefferson Thought about Patents: Reevaluating the Patent “Privilege” in Historical Context, Adam Mossoff describes the “near-universal misuse of history by lawyers and scholars today, who rely on Jefferson as undisputed historical authority in critiquing expansive intellectual property protections today” (a point I expanded on in my post, Who Cares What Jefferson Thought About Copyright?)

Copyright and the Founding of the United States

Especially important to copyright is the founding period of the United States, from the ratification of the Articles of Confederation following the Revolutionary War to the adoption of the first US Copyright Act (1781—1790). This is the time period when US copyright law was born; the creation of the Copyright Clause in the Constitution by the Framers and the passage of the first Copyright Act have been explored thoroughly by scholars and others seeking insights into how we should deal with the scope and purpose of modern day copyright law. It is an especially important time period to look at when making Constitutional arguments, since the original intent or original meaning of Constitutional clauses can help guide their interpretation.

Below is the first part of some of the common myths I’ve observed in this area (with more coming later this week).

The Copyright Clause was a compromise, or the result of a debate. 8“So in the early republic and the first century of American legal history, copyright was a Madisonian compromise, a necessary evil, a limited, artificial monopoly, not to be granted or expanded lightly” Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, pg. 24 (2003); “Like much of the language in the Constitution, this clause was the product of compromise.” Linda L. Brenna, Social, Ethical and Policy Implications of Information Technology, pg. 224 (2004).

This claim is completely lacking in merit. Madison proposed the idea for the Copyright Clause in the last weeks of the Constitutional Convention. 9James Madison, Debates in the Federal Convention of 1787, August 18, 1787 (online). The proposal was referred to the Committee on Detail without comment or objection. On September 5, David Brearley from the Committee of Eleven submitted the proposal, which now read “To promote the progress of Science and useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries”, to the members of the Convention. 10James Madison, Debates in the Federal Convention of 1787, September 5, 1787 (online). Again, there was no recorded discussion of the clause, and according to Madison’s notes on the debates in the convention, the addition of the clause to the Constitution was agreed to “nem: con:” — without contradiction.

There is the barest of discussion on the Clause after the Constitution was finalized. Madison refers to it once, and only very briefly, in the eighty-five Federalist Papers, making it one of the least discussed clauses of the Constitution in that source. 11Federalist No. 43. It is mentioned only in passing in what are considered the anti-Federalist papers. 12Letters from the Federal Farmer, Letter XVIII, January 25, 1788 (online). This paucity of discussion extended to the state ratification debates. There, the clause only appeared a handful of times, and only very briefly — in a speech by Hugh Williamson and an essay by James Iredell in North Carolina, and in remarks by Thomas McKean in Pennsylvania. 13Schwartz and Treanor at 2376. Very little substantive discussion accompanied the legislative process of the first US Copyright Act in 1790 as well. 14See William Patry, Copyright Law and Practice, The First Copyright Act (1994).

This lack of discussion should not be surprising. The Federal Constitutional Convention was called just four years after the US had ended its war for independence against Great Britain. The national government operating under the Articles of Confederation was virtually powerless to address the foreign threats and domestic turmoil the states were experiencing at the time. 15See Bruce Chadwick, Triumvirate: The Story of the Unlikely Alliance That Saved the Constitution and United the Nation, pp. 8-9 (2009). The Framers had far more pressing matters than a copyright law. 16Prior to the Convention, James Madison himself referred to the need for uniform laws concerning literary property as an instance “of inferior moment.”

The Constitution itself was the result of many compromises — particularly how states should be represented in the national government (the Great Compromise) and how slaves should be counted for purposes of representation and taxation (the Three-fifths Compromise). But there was no “compromise” to speak of concerning Congress’s power to grant copyrights; the power simply wasn’t high on the list of the Framers’ priorities.

It’s important to remember that the Framers of the US Constitution weren’t working on building a government. They already had a government — thirteen of them, to be exact. What they were working on building was a federal government. The states were sovereign governments, and like most sovereigns of the time and today, they had indefinite and unenumerable powers; that is, they were constrained only by the inalienable rights of citizens.

The states had inherited their law from England, which had had a copyright statute since 1710. By the time the Framers had gathered to work on the new Constitution, twelve of the thirteen states had passed their own copyright statutes. The “purpose” of copyright law in general, then, was fairly established, and, as noted above, wasn’t debated as part of the ratification of the Constitution.

The only conclusion that can be drawn from this time is this: the purpose of the Copyright Clause in the Constitution was to create uniformity in copyright law. In his April 1787 paper, “Vices of the Political System of the U. States,” James Madison notes as his fifth “vice”, the “want of concert in matters where common interest requires it,” which includes “the want of uniformity in the laws concerning naturalization & literary property.” His brief mention of the Clause in the Federalist Papers reiterates this point, saying, “The States cannot separately make effectual provisions” to protect authors. The same is true in the ratifying conventions: Thomas McKean, in one of the few mentions of the Clause, noted, “The power of securing to authors… the exclusive rights to their writings… could only with effect be exercised by the Congress. For, sir, the laws of the respective states could only operate within their respective boundaries and therefore, a work which has cost the author his whole life to complete, when published in one state, however it might there be secured, could easily be carried into another state in which a republication would be accompanied with neither penalty nor punishment—a circumstance manifestly injurious to the author in particular…” 17Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution.

Copyright wasn’t thought of as “property” or a natural right.

In his widely cited book Copyrights and Copywrongs, Siva Vaidhyanathan makes this claim. According to Vaidhyanathan, the original principle of copyright was “as an incentive to create”. This principle “has been challenged in recent decades by the idea of copyright as a ‘property right'”, a trend that runs “counter to the original purpose of American copyright.” He claims “Madison did not engage in ‘property talk’ about copyright”; or the founders in general “did not argue for copyrights or patents as ‘property.'” 18Similar claims include Jacob Huebert, Libertarianism Today, ch. 10 (2010), “The people who enacted IP laws in the first place knew … that they were not recognizing some preexisting natural property right, but just granting a temporary privilege.”

History tells a different story, however.

As noted above, copyright was not a top priority at the dawn of the United States, between finishing a war with one of the most powerful empires at the time and creating a new nation. But by the 1780’s, authors had begun seeking legal protection from the Continental Congress under the Articles of Confederation. On March 10, 1783, the Continental Congress resolved “That a committee be appointed to consider the most proper means of cherishing genius and useful arts through the United States by securing to the authors or publishers of new books their property in such works.” 1924 Journals of the Continental Congress 180. On May 2nd, according to the Journals of the Continental Congress, “The committee, consisting of Mr. [Hugh] Williamson, Mr. [Ralph] Izard and Mr. [James] Madison, to whom were referred sundry papers and memorials from different persons on the subject of literary property, being persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce,” moved for a resolution that recommended the States pass statutes protecting copyright. 2024 Journals of the Continental Congress 326.

Justin Hughes speculates that the “sundry papers and memorials” may have included a 1782 pamphlet from Thomas Paine. 21Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson at 1021. In the introduction to that pamphlet, Paine rails against the unauthorized reprinting of a work by French writer Abbe Raynal, saying, “It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth.” 22On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up. In a footnote, Paine adds:

The state of literature in America must one day become a subject of legislative consideration. Hitherto it hath been a disinterested volunteer in the service of the revolution, and no man thought of profits: but when peace shall give time and opportunity for study, the country will deprive itself of the honour and service of letters and the improvement of science, unless sufficient laws are made to prevent depredations on literary property.

Hughes adds that it’s also reasonable to assume petitions from author Joel Barlow — who wrote, “There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination” — and Noah Webster — who was riding up and down the United States in support of a copyright law with an open letter to legislators written by Princeton professor Samuel Stanhope Smith that read in part, “Men of industry or of talent in any way, have a right to the property of their productions” — were also in front of this committee.

So far, plenty of references to copyright as property (and a lack of any arguments in these contexts against the notion) — and we haven’t even gotten to the Constitutional Convention yet.

Twelve of the thirteen States followed the Confederate Congress’s recommendation and passed copyright statutes. Here, the “property talk” continues. The preamble to the Massachussets and Rhode Island statutes proclaimed that “such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.” The copyright acts of Maryland, Massachussets, and New Hampshire declared books the “sole” or “exclusive property” of authors. Maryland and North Carolina’s acts were referred to as acts protecting “literary property.”

And here we also have more “property talk” from James Madison himself. On November 15, 1785, the Virginia House of Delegates, acting on the recommendation, “Ordered, That leave be given to bring in a bill ‘for securing to the authors of literary works an exclusive property therein, for a limited time;’ and that Messrs. Madison, Page and Tyler, do prepare and bring in the same.” 23Journal of the House of Delegates of the Commonwealth of Virginia, pg. 39. The next day, Madison himself presented the bill, titled “An act for securing to the authors of literary works an exclusive property therein for a limited time.” And, as noted earlier, less than two years later, prior to the Constitutional Convention, James Madison wrote that one of the “vices” of the current government was the lack of uniformity in laws concerning “literary property.”

Additionally, evidence from the legislative history of the first Copyright Act shows that some in Congress explicitly thought of copyright through the lens of property. An attempt to pass a copyright bill stalled in the first session of the First Congress. During the second session, more progress was made. On January 25th, 1790, Congressman Aedanus Burke suggested addressing copyrights and patents in separate bills to get things moving. He urged his fellow Representatives of the importance of passing a copyright bill, noting “several gentlemen had lately published the fruits of their industry and application, and were every hour in danger of having them surreptitiously printed.” Later, Burke noted it would be easier to address a copyright bill first, since the law would likely be short since “it is almost as easy to ascertain literary as any other kind of property.” 24Annals of Congress, 1st Cong., 2nd sess., 1080.

References   [ + ]

1. George Santanaya, The Life of Reason; or the Phases of Human Progress (1905).
2. George Orwell, 1984 (1949).
3. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006).
4. See, for example, James Boyle, The Public Domain: Enclosing the Commons of the Mind, pg. 23 (2008): “These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom… It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them— Jefferson, Madison, Smith, and Macaulay—could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term”; Gerry Canavan, The founding fathers had copyright right, Independent Weekly (May 27, 2009); Robert Darnton, video (Dec 11, 2009):”The founding fathers got it right, and Hollywood got it wrong.”
5. While there is plenty of scholarship advancing this argument, it owes much to Lawrence Lessig, who put the argument into action by bringing four legal cases in the past decade to challenge recently enacted copyright laws on constitutional grounds: Eldred, Golan, Kahle, and Luck’s Music Library. All four cases failed, and the Supreme Court in Eldred commented that petitioners had crafted what was largely a disagreement over Congressional policy behind a “facade” of “inventive constitutional interpretation.”
6. Hughes at 1083.
7. Paul M. Schwartz and William Michael Treanor, Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 Yale Law Journal 2331, 2378 (2003).
8. “So in the early republic and the first century of American legal history, copyright was a Madisonian compromise, a necessary evil, a limited, artificial monopoly, not to be granted or expanded lightly” Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, pg. 24 (2003); “Like much of the language in the Constitution, this clause was the product of compromise.” Linda L. Brenna, Social, Ethical and Policy Implications of Information Technology, pg. 224 (2004).
9. James Madison, Debates in the Federal Convention of 1787, August 18, 1787 (online).
10. James Madison, Debates in the Federal Convention of 1787, September 5, 1787 (online).
11. Federalist No. 43.
12. Letters from the Federal Farmer, Letter XVIII, January 25, 1788 (online).
13. Schwartz and Treanor at 2376.
14. See William Patry, Copyright Law and Practice, The First Copyright Act (1994).
15. See Bruce Chadwick, Triumvirate: The Story of the Unlikely Alliance That Saved the Constitution and United the Nation, pp. 8-9 (2009).
16. Prior to the Convention, James Madison himself referred to the need for uniform laws concerning literary property as an instance “of inferior moment.”
17. Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution.
18. Similar claims include Jacob Huebert, Libertarianism Today, ch. 10 (2010), “The people who enacted IP laws in the first place knew … that they were not recognizing some preexisting natural property right, but just granting a temporary privilege.”
19. 24 Journals of the Continental Congress 180.
20. 24 Journals of the Continental Congress 326.
21. Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson at 1021.
22. On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up.
23. Journal of the House of Delegates of the Commonwealth of Virginia, pg. 39.
24. Annals of Congress, 1st Cong., 2nd sess., 1080.

Songwriter Paul Williams ‘State of the Union’ Address at ASCAP (Video) — Video of ASCAP President and Chairman Paul Williams at last month’s annual ASCAP membership meeting. Skip to 5:55 for great remarks on recent copyright developments, including SOPA/PIPA. From 16:29-18:30, stirring remarks about the craft of songwriting: “You are participants in a mystical and a magical craft… it isnt the ones and zeros, it isn’t data or devices — you reach into people’s hearts and minds and you make a difference in the beauty and meaning of their lives. If you can do that, you deserve to be paid for your work.”

The Art of the Steal: Warhol Didn’t Get Away With It. Why Should Richard Prince? — Much ink has been spilled over appropriation art’s “challenge” to copyright law. PDNPulse reports on an Art Newspaper storythat calls into question some of the claims. The implied claim of appropriation art defenders: “Where would civilization be without the great works of appropriation artists like Andy Warhol and Robert Rauschenberg? Credit The Art Newspaper, a British publication, with taking on that argument. Yesterday they reported that Warhol, Rauschenberg and other big name appropriation artists quit stealing the work of others–and started getting licenses instead–after they got sued once or twice (or five times) for infringement.”

Why No Web Blackout For CISPA? Google It — Rob Levine with an important piece on internet activism. “Following the money is important since so many activists crowed about how ‘the Internet community’ resisted the power of corporations. Most neglected to mention that much of this activity was funded by another powerful corporation, as well as the venture capitalists that count on a lawless web to turn companies like Pinterest into rich IPOs.”

Naming names – the free culture witch hunt is on — John Degen looks at Rep. Zoe Lofgren’s questions to US Register of Copyright Maria Pallante at a hearing last month. “After smilingly admitting to the constituent pressure she herself is under, and reading copyright opinions that come straight from Silicon Valley’s free culture manual, it takes some kind of shamelessness for the Congresswoman to suggest there was undo influence on a public servant who is appointed rather than elected. As well, Ms. Pallante showed impressive restraint in not simply laughing at the question about copyright law being for authors first, instead directing Rep. Lofgren to the section of the U.S. Constitution, supporting legislation, and Supreme Court decisions that support her view.”

Those who want freedom from copyright will really deliver feudalism — Helienne Lindvall delivers another great column on the aversion to creators being able to control the products of their labor. “Why do Kroes, CI and A2K want to take this fundamental right, enshrined in the Universal Declaration of Human Rights, away from me? Their ‘solutions’ would create either a corporate feudalism where I would have to go around hat in hand, or a communist state, where the state would decide how much or even if I should get paid when my music is used. And to think that these solutions come from people claiming to be forward thinking? If this is their version of freedom and innovation, I can live without it.”

Facebook Kicks off Grooveshark — In apparent preparation for its IPO, the social network has deleted Grooveshark’s page and app from its site. Facebook joins iTunes and Google in kicking off the increasingly criticized music service.

Considering TPP: Local economies thrive when artists’ rights are protected— The Copyright Alliance’s Lucinda Dugger remarks on the organizations signing, along with over 30 other organizations, of a letter in support of the Trans-Pacific Partnership. “Strong copyright enforcement proves to encourage creative and cultural development in all economies – both established and developing – as it provides the individual creator an opportunity to profit for a limited time from his creative works, through licensing, royalties, or other sales. Working with artists all around our country, I see on a regular basis how mom and pop shops, sole-proprietors, and individual creators produce works that excite and move us and our communities. Through ownership of works, they additionally develop an identity that allows local economies to thrive, grow, and prosper.”

Hollywood takes up veteran causes with ‘Got Your Six’ effort — The LA Times discusses Got Your 6, a new initiative to build awareness about veterans issues. “Companies participating include Comcast Corp.’s NBCUniversal, Time Warner Inc.’s HBO and Warner Bros., News Corp.’s Fox, Sony, Walt Disney Co.’s ABC, as well as talent agencies Creative Artists Agency, United Talent and William Morris Endeavor. Also on board are the Directors Guild of America, SAG-AFTRA and the Writers Guild of America, West.”

State Film Tax Credits Good For Local Economies: Study — Deadline Hollywood reports on a recent study that examines the impact of film tax credits on state economies. “Thirty-seven states currently have film credit programs. The programs, with Louisiana, Illinois, Florida and Georgia among the most utilized by studios in recent years, draw from an estimated $1.2 billion in tax dollars annually nationwide.” Long-term benefits include “increased tourism, if the location ‘plays itself’ in productions, infrastructure development and seasoned local crews which can lead to increased tax revenues, spending and investment.”

Was Hollywood built on piracy? That’s what some seem to suggest. Lawrence Lessig’s version of this story from his 2004 book Free Culture is archetypical:

The Hollywood film industry was built by fleeing pirates. Creators and directors migrated from the East Coast to California in the early 20th century in part to escape controls that film patents granted the inventor Thomas Edison. These controls were exercised through the Motion Pictures Patents Company, a monopoly “trust” based on Edison’s creative property and formed to vigorously protect his patent rights.

California was remote enough from Edison’s reach that filmmakers like Fox and Paramount could move there and, without fear of the law, pirate his inventions. Hollywood grew quickly, and enforcement of federal law eventually spread west. But because patents granted their holders a truly “limited” monopoly of just 17 years (at that time), the patents had expired by the time enough federal marshals appeared. A new industry had been founded, in part from the piracy of Edison’s creative property.

This little bit of historical revisionism has popped up regularly since then. In January, The Pirate Bay issued a press release repeating the story and claiming they are the modern day equivalent of Hollywood. And most recently, Torrentfreak reminded its readers of the story — picked up by Techdirt, whose story was in turn picked up by Cory Doctorow — in response to MPAA Chairman Chris Dodd’s spoken remarks at last month’s CinemaCon.

The purpose of this spin on the facts seems to be to show some kind of hypocrisy on the part of movie studios. The evidence, though, doesn’t support the claims. 1This seems a common theme when looking at copyright criticims. See Remix Without Romance: What Free Culture Gets Wrong for another recent example.

The Dawn of the Motion Picture Industry

The end of the 19th century found inventors racing to develop technology that could record and display moving pictures, and Thomas Edison was the first to bring a commercial motion-picture machine to market. 2Robert Sklar, Movie-Made America: A Cultural History of American Movies, pg 13 (1994). The early years saw some patent skirmishes between rival companies as film began to grow in popularity. In 1908, Edison helped form the Motion Picture Patents Company (MPPC) with other patent holders. Together, they held a virtual monopoly on the movie industry; their patents covered projectors, cameras, and film stock. Their control went beyond patents, however. Using tie-in agreements and licensing, and forming the General Film Corporation to monopolize film distribution, they locked out competition at every step, from making movies to exhibiting them. 3Robert Sklar has said, “The roots of the motion-picture monopoly lay in Thomas A. Edison’s greed and dissimulation; and the results of it were a complete debacle for the Wizard, his leadership and social class.”

Around this time, a group of independent filmmakers entered the market. These independents included many of the founders of the major studios that still exist today, including Carl Laemmle of Universal Pictures and Adolph Zukor of Paramount Pictures. The independents challenged the MPPC, creating and exhibiting films with unlicensed equipment and buying supplies from outside the US. Edison responded forcefully to the challenges — he took Laemmle’s operation especially personal, suing the independent filmmaker 289 times.

Who Were the Real Pirates?

According to this headline from a San Francisco newspaper in 1913, it wasn’t the independents who were the pirates:

The independents weren’t infringing on any patents themselves, they were violating the license and tie-in agreements that came with the MPPC’s equipment. The MPPC did enjoy some early success with its litigation efforts,  convincing several courts that illegal restraint of trade was not a defense to patent infringement. 4Michael Conant, Antitrust in the Motion Picture Industry, pg. 20 (1960).

But the MPPC didn’t rely solely on the law — Edison enforced the Trust’s domination with violence. Hired thugs would smash cameras and raid the independents’ places of business. 5Jane Chapman, Comparative Media History: An Introduction: 1789 to the Present, pg. 132 (2005). Historian Thaddeus Rockwell notes the extent of the violence perpetuated by the Trust: “They seized film, beat up directors and actors, forced audiences out of theaters, smashed the nickelodeon arcades and set fire to entire city blocks where they were concentrated.”

The organization’s anti-competitive tactics caught the attention of the US government, which took action against them. In 1916, the Eastern District Court of Pennsylvania entered a decree against the Motion Picture Patents Co. The judge found that the MPPC, the General Film Company, and the individual companies involved had “attempted to monopolize and have monopolized and have combined and conspired … to monopolize a part of the trade or commerce … consisting of the trade in films, cameras, and projecting machines” in violation of the Sherman Antitrust Act. It declared all the contracts, patent licenses, and patent assignments used by the MPPC illegal.

The trust also began suffering setbacks in the courts, and in 1917, the US Supreme Court unequiovically struck down one of the license agreements that the MPPC had used to extend its monopoly. 6Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 US 502. In that case, the MPPC had sued Universal Film Manufacturing Company for patent infringement pursuant to its license agreement which restricted use of the MPPC’s film projectors to only exhibiting or projecting films licensed by the MPPC. (Imagine if a company like Apple claimed that it was patent infringement to play digital music legally acquired somewhere other than iTunes on an iPod.)

The Court recognized that a patent grant is limited “to the mechanism described in the patent as necessary to produce the described results. It is not concerned with and has nothing to do with the materials with which or on which the machine operates. The grant is of the exclusive right to use the mechanism to produce the result with any appropriate material, and the materials with which the machine is operated are no part of the patented machine or of the combination which produces the patented result. The difference is clear and vital between the exclusive right to use the machine, which the law gives to the inventor, and the right to use it exclusively with prescribed materials to which such a license notice as we have here seeks to restrict it.”

The Supreme Court concluded:

A restriction which would give to the plaintiff such a potential power for evil over an industry which must be recognized as an important element in the amusement life of the nation, under the conclusions we have stated in this opinion, is plainly void, because wholly without the scope and purpose of our patent laws, and because, if sustained, it would be gravely injurious to that public interest, which we have seen is more a favorite of the law than is the promotion of private fortunes. [Emphasis added.]

Why Did the Studios Move to Hollywood

Not only is the story that Hollywood was built on “piracy”, the claim that the independent studios ran to Hollywood to get away from Edison and his legal threats is greatly overstated. Southern California offered many advantages over the established filmmaking centers of New York and Chicago that provide stronger reasons for the migration.

Geography, for one. California offered a wide variety of scenery that was useful as substitutes for all sorts of locations, as this 1927 Paramount Studios map illustrates perfectly.

The landscape of Southern California:

was not only spectacular but extraordinarily varied. Summer greenery and winter snow, sunny beaches, barren deserts and rocky mountains were all with a short distance of each other. Florida and Texas could supply the climate for year-round outdoor filming, but they did not have quite the range of scenic choices within a day’s trip from the studios. Even the light of California was different, gently diffused by morning mists rolling in from the Pacific or by dust clouds blowing off the sandy hills. The rugged western landscape and the wide-open spaces were felt as enormous attractions in the rest of the world. 7Eileen Bowser, The Transformation of Cinema, 1907-1915 (History of the American Cinema), pg 151 (1994).

Weather played a huge role too — LA offers 70 degree year-round weather as opposed to winters in New York or, worse, Chicago. 8“Bad weather in Chicago was the primary reason the movies first turned toward the West, and eventually migrated to Hollywood.” Paul Zollo, Hollywood Remembered: An Oral History of Its Golden Age, pg. 12 (2002). Peter Ediden of the New York Times notes, “This wasn’t merely a matter of comfort; even the brightest electric lights of the time were too dim to  expose film properly, so a run of cloudy days could halt production at, say, the Edison studios in East Orange, N.J.”

In fact, nearly everything about the area was an improvement. Land was cheaper and more available and the costs of labor were lower.

Former Curator of Film at the Museum of Modern Art in New York Eileen Bowser points out that the hiding from Edison factor makes little sense:

[T]he New York Motion Picture Company had already managed to escape the Patents Company’s pursuit just by going to Neversink in the Catskills that summer. Furthermore, by Balshofer’s own account, they were easily found by Patents Company spies in California a short time after they got there. At the same time, the Trust companies, which had nothing to hide, were also discovering the great California winter sunshine. 9Transformation of Cinema, pg. 150.

What it means

The proponents of this myth seem to want to suggest an analogy: Hollywood was built by “outlaws”; now Hollywood has become the incumbent, seeking to stop the next generation of “outlaws”. But this is a false equivalence. The Pirate Bay (or Megaupload, etc.) isn’t producing its own movies. Recognizing exclusive rights to a creative work doesn’t prohibit anyone from creating their own works. Stopping someone from offering copies, especially complete, verbatim copies, of a work is not anti-competitive.

The Trust’s actions against the independents were found illegal; the agreements were declared “plainly void” by the Supreme Court. Contrast that to the Court’s more recent decision in MGM v. Grokster, where even the dissent said, in reference to the P2P service Grokster, “deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft.”

References   [ + ]

1. This seems a common theme when looking at copyright criticims. See Remix Without Romance: What Free Culture Gets Wrong for another recent example.
2. Robert Sklar, Movie-Made America: A Cultural History of American Movies, pg 13 (1994).
3. Robert Sklar has said, “The roots of the motion-picture monopoly lay in Thomas A. Edison’s greed and dissimulation; and the results of it were a complete debacle for the Wizard, his leadership and social class.”
4. Michael Conant, Antitrust in the Motion Picture Industry, pg. 20 (1960).
5. Jane Chapman, Comparative Media History: An Introduction: 1789 to the Present, pg. 132 (2005).
6. Motion Picture Patents Co. v. Universal Film Manufacturing Co., 243 US 502.
7. Eileen Bowser, The Transformation of Cinema, 1907-1915 (History of the American Cinema), pg 151 (1994).
8. “Bad weather in Chicago was the primary reason the movies first turned toward the West, and eventually migrated to Hollywood.” Paul Zollo, Hollywood Remembered: An Oral History of Its Golden Age, pg. 12 (2002).
9. Transformation of Cinema, pg. 150.

Why Musicians Need More Than Viral Videos to Succeed — Excellent interview with Billy Corgan on music, success, and value in today’s world.

You Can’t Have A Healthy Market Economy Without Property Rights.  Why Do So Many In Tech Blogosphere Want To Abolish Cyber Property Rights And Cripple The Cyber-Economy? — David Lowery returns to the Trichordist: “I realize that what I am saying about robust property rights and healthy economies is nothing new. It’s a rather elementary and banal critique of the Copyleft’s proposed cyber-economy. What is more interesting is why there are so few other voices out there challenging these wackjobs? Why is it left to the singer of a moderately successful cult rock band to challenge this nonsense? That’s the real story here. Where are the grown-ups?” Part 2 here.

If it looks like a bubble and it feels like a bubble… — Is Silicon Valley partying like it’s 1999? Or is a 2 year old company with 13 employees and no revenue or business plan really worth $1 billion?

Silicon Valley’s Hottest New Start-Up Idea: Nothing — This Forbes article suggests answers to the above questions. “Do you have a can’t-miss idea for a start-up that could be the next Facebook, Pinterest or Draw Something? Great. Write it down on a piece of paper. Now burn that piece of paper. Congratulations. You’re halfway to your first billion.”

Is the Midnight Screening the New Rock Concert? — Interesting article on Viacom’s new blog. Midnight screenings of films have gone from niche to mainstream and are filled with hardcore fans, making the experience more like a rock concert than just another day at the movies. Check out the rest of the Viacom blog, it’s a cut above your run-of-the-mill corporate blog/press release archive.

Jimmy Wales’s Latest Speech Is ‘Nonsense on Stilts’ — Speaking of films, Andrew Keen takes on Wikipedia founder Jimmy Wale’s recent comments that “Collaborative storytelling and filmmaking will do to Hollywood what Wikipedia did to Encyclopaedia Britannica.” “Like so many other digital utopians,” says Keen, “Wales has been deluded by the leveling power of the Internet.”

Best Practices Make Best Partners — Good news: “Today the Association of National Advertisers (ANA) and the Association of Advertising Agencies (4A’s) announced a Statement of Best Practices encouraging their members to adopt proactive measures to combat rogue websites dealing in counterfeit and infringing goods.  The Best Practices also have the support of the Interactive Advertising Bureau (IAB).”

Rojadirecta — Both the US and Puerto 80 have filed their briefs concerning Puerto 80’s motion to dismiss the government’s civil forfeiture proceeding against the Rojadirecta domain name. US Memorandum of Law in Opposition to Motion (PDF). Puerto 80 Reply Memorandum of Law in Support of Motion (PDF). A hearing on the motion is scheduled for the beginning of next month.

A relatively unknown copyright infringement case is starting to attract more attention.

In October 2010, self-described “gay ethnic adult company” Flava Works sued Marques Rondale Gunter, who owns and operates myVidster, a “social video bookmarking” site for copyright and trademark infringement. Now the case is in front of the Seventh Circuit, and it has attracted amicus briefs from heavyweights like the MPAA, Google and Facebook, and perennial amici Public Knowledge and the EFF.

While the appeal raises several important issues, it is one in particular that has attracted much of the attention online. Can embedding a video infringe on copyright?

Flava Works in the Lower Court

Last May, the Northern District Court of Illinois ruled on Gunter’s motion to dismiss the complaint. The court dismissed all the claims except the contributory copyright infringement claim. It found that Flava Works had plead sufficient knowledge. Said the court, “The knowledge element for contributory copyright infringement is met in those cases where a party has been notified of specific infringing uses of its technology and fails to act to prevent future such infringing uses, or willfully blinds itself to such infringing uses.” myVidster’s receipt of multiple DMCA takedown notices involving the same files and users triggered a duty for it to take steps to prevent future infringing uses.

Later that summer, the Illinois court granted Flava Works request for a preliminary injunction against Gunter, concluding that it was likely to succeed on the merits of its claim of contributory copyright infringement. 1Note that the District Court followed the traditional standard for copyright infringement injunctions, where a likelihood of success on the merits creates a presumption in favor of an injunction. This is in contrast to the Second and Ninth Circuits, which extended the Supreme Court’s holding in eBay v. MercExchange that no such presumption exists for patent injunctions to copyright infringement cases. Gunter has appealed this point along with the others discussed here, and while it is an interesting and important issue, it is beyond the scope of today’s article. Notably, it rejected Gunter’s contention that the site was protected by the DMCA’s safe harbor. It primarily based this decision on the site’s lack of a repeat infringer policy — one of the prerequisites for safe harbor protection — and this decision seemed an easy one. Said the court, “It is difficult for us to understand how defendants can argue with a straight face that they have adopted and reasonably implemented a ‘repeat infringer’ policy.”

Gunter moved for a reconsideration of the preliminary injunction, which the court denied. The court explained, “The vast majority of myVidster users have not created backup copies of videos on the site, but have directed myVidster to “embed” video clips on the site through the posting/bookmarking process. It is this action, to which defendants also refer as “inline linking,” that is the focus of the instant motion to reconsider.” Gunter argued that the Ninth Circuit’s holding in Perfect 10 v. Amazon should compel a different result.

In Perfect 10, the Court was faced with the question of whether Google’s image search, which used in-line linking to display full-size images from other sites in its results, directly infringed the plaintiff’s display right. After interpreting the Copyright Act’s language, the Ninth Circuit adopted what the District Court called the “server test” — infringement of the display right is only possible when the image resides on the web site’s own servers, not when the image is only displayed in-line but resides on another web site’s computers.

Flava Works disagreed with Perfect 10:

We decline to apply Perfect 10 to this case. The Ninth Circuit’s decision is not binding on this court; moreover, it is highly fact-specific and distinguishable. Defendants assert that the cases involve “essentially the same technology.” Both cases may involve inline linking, but the processes are quite different. The relevant comparison is between the conduct of Google and the conduct of myVidster’s users, not between Google and myVidster. In response to a search query, Google’s image search engine uses an automated process to display search results through inline linking. In contrast, myVidster’s users do not employ any sort of automation to determine which videos they bookmark; rather, they personally select and submit videos for inline linking/embedding on myVidster. (And many of those hand-picked videos are infringing.) Google’s use of inline linking is neutral to the content of the images; that of myVidster’s users is not.

To the extent that Perfect 10 can be read to stand for the proposition that inline linking can never cause a display of images or videos that would give rise to a claim of direct copyright infringement, we respectfully disagree. In our view, a website’s servers need not actually store a copy of a work in order to “display” it. The fact that the majority of the videos displayed on myVidster reside on a third-party server does not mean that myVidster users are not causing a “display” to be made by bookmarking those videos. The display of a video on myVidster can be initiated by going to a myVidster URL and clicking “play”; that is the point of bookmarking videos on myVidster—a user can navigate to a collection of myVidster videos and does not have to go to each separate source site to view them.

Gunter persisted and appealed Flava Works to the Seventh Circuit.

Can Embedding Infringe Copyright?

One of the major issues in the appeal — and the one that has attracted the attention of Google, Facebook, and the MPAA — is whether embedding videos violates a copyright owner’s public performance right. Secondary liability requires direct infringement, and the parties dispute the lower court’s conclusion that myVidster’s users, who add such embedded links to the myVidster site, are direct infringers.

Gunter, and amici Facebook and Google, urge the Seventh Circuit to adopt the Ninth Circuit’s “server test.” As noted above, the Ninth Circuit interpreted the Copyright Act to limit liability for public display of a copyrighted work to only those online users who actually copy the work onto their own server.

Flava Works, joined by the MPAA as amicus, argue in support of the lower court’s decision.

Gunter is facing an uphill battle here. As the lower court noted, the Ninth Circuit’s decision isn’t binding on the Seventh. And while the “server test” has been received favorably by some academics and service providers, it has apparently not been endorsed by any other court outside the Circuit. And, the “server test” is not found in the text of the Copyright Act or suggested by the legislative history.

There’s another problem for Gunter. Perfect 10 dealt solely with the public display right in copyright, while here the court is dealing with both the right to publicly display and publicly perform a work. The Ninth Circuit’s adoption of the “server test” was premised on the language of the Copyright Act’s definition for “display”:

To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

The court seized on the definition’s inclusion of the word “copy” to support its conclusion. However, the Act’s definition of “performance” doesn’t refer to copies:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

On a side note, this definition makes sense. When a theater performs a dramatic play, or a band performs a musical composition, it doesn’t generally have a “copy” of the work, but such a performance is still within the exclusive rights of the copyright owner.

But more to the point, even if the Ninth Circuit’s “server test” were adopted by the Seventh Circuit, it doesn’t follow, from the language of the definitions, that it should be applicable to the public performance right.

It’s my opinion that embedding a video can be considered a public performance (I’ve touched on this issue before in relation to last summer’s Commercial Felony Streaming Act). In fact, I was somewhat surprised in researching to discover that the issue doesn’t seem to have come in front of a court until now. But others have concluded the same — here’s an article from 2007 quoting This Week in Law’s Denise Howell saying as much.

And, despite some of the hyperbole 2According to the site linked above: “If the MPAA is successful and the decision is upheld, this could have far reaching, and dire, consequences for Internet users of all stripes; the ruling would seem to include even the idea of linking back to the host-site instead of embedding, essentially rendering a critical part of online culture illegal. It would, much like ACTA, accomplish a large part of what SOPA and PIPA sought to do without actually requiring the pesky consent of the governed that otherwise is at the heart of American law.” that has resulted from Flava Work’s position on embedded links, I don’t believe a decision affirming the lower court would result in much of a change for occasional users of embedded links — like, say, bloggers or forum operators. These users have always had the benefit of the DMCA safe harbors for any unintentional infringement that might stem from embedding a video, as well as the fair use defense in appropriate circumstances.

Is Linking ever Infringement?

Part of the negative response to this case seems to stem from an idea that linking can never give rise to liability for infringement — this is, in fact, one of the arguments Google and Facebook make in their joint amicus brief. 3The court and parties to this case use the term “linking” to refer both to hyperlinking — where a web site’s text can be clicked to go to another web site — and embedded linking — where an image or video on another server is displayed as though it is part of a web site. Under the hood, both are acheived in much the same way, though each offers a different type of experience to the user. But such a bright line rule has never existed.

Congress certainly hasn’t held this view. In the legislative history for the DMCA, you can find evidence that Congress believed linking can, in some cases, be infringing. The House Commerce Committee explained that the “red flag” knowledge standard in the bill was intended “to exclude from the safe harbor sophisticated ‘‘pirate’’ directories—which refer Internet users to other selected Internet sites where pirate software, books, movies, and music can be downloaded or transmitted.” And the safe harbor for information location services itself (17 USC § 512(d)) expressly shields service providers against liability “for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link.”

And, despite its legal arguments, Google itself recognizes that linking can infringe copyright. In its AdWords copyright policy, Google states that “Software or sites that enable streaming, copying, or downloading of movies, music, television programs, games, or software” are not allowed — and such sites include “Link aggregation sites primarily aimed at enabling the download or streaming of music, movies, or other media.”

References   [ + ]

1. Note that the District Court followed the traditional standard for copyright infringement injunctions, where a likelihood of success on the merits creates a presumption in favor of an injunction. This is in contrast to the Second and Ninth Circuits, which extended the Supreme Court’s holding in eBay v. MercExchange that no such presumption exists for patent injunctions to copyright infringement cases. Gunter has appealed this point along with the others discussed here, and while it is an interesting and important issue, it is beyond the scope of today’s article.
2. According to the site linked above: “If the MPAA is successful and the decision is upheld, this could have far reaching, and dire, consequences for Internet users of all stripes; the ruling would seem to include even the idea of linking back to the host-site instead of embedding, essentially rendering a critical part of online culture illegal. It would, much like ACTA, accomplish a large part of what SOPA and PIPA sought to do without actually requiring the pesky consent of the governed that otherwise is at the heart of American law.”
3. The court and parties to this case use the term “linking” to refer both to hyperlinking — where a web site’s text can be clicked to go to another web site — and embedded linking — where an image or video on another server is displayed as though it is part of a web site. Under the hood, both are acheived in much the same way, though each offers a different type of experience to the user.

No sympathy for the creative class — There is a lot of overlap between debate over copyright issues and debate about art and culture itself, especially the existence of a professional creative class within a society. This is an interesting article from Salon by Scott Timberg that explores the latter. Says Timberg, “Our image of the creative class comes from a strange mix of sources, among them faux-populist politics, changing values, technological rewiring, and the media’s relationship to culture – as well as good old-fashioned American anti-intellectualism.”

IMAGiNE BitTorrent Piracy Group Indicted, Face Years In Prison — Following an investigation by ICE, four US individuals have been indicted for allegedly being part of a piracy group. All four are scheduled to be arraigned May 9.

GEMA v YouTube continued — Last week, a German court found YouTube liable for infringement by its users. Monika at the 1709 Blog offers some thoughts on the decision. ” I fully agree that the services mentioned might not have been developed if they had had to comply with the standards set by the Hamburg judges in GEMA v YouTube. However, I am pretty sure many industries would never have developed if they had had to comply with today’s health and safety standards, but that does not necessarily mean that current health and safety standards should be abolished.”

Google Says “It’s Our Web”–and they bought it fair and square — Google has already spent $5 million lobbying this year. What does this mean for creators, and what does this mean for the future of the web? Chris Castle takes a look at these questions.

A Sergey update: we misunderstood him — Dominic Young follows up on the Google founder’s interview with the Guardian earlier this month. “In truth, unfair advantages lead to unfair outcomes. Google is a massive and mind-bogglingly rich company, run by some of the most mind-bogglingly rich young scamps in the world, and the largest and most powerful aggregator of content and data ever seen. It has become so by exploiting content created by others. Even if this has by-and-large been done with tacit or “implied” permission, the idea that it doesn’t require permission in law or in reality, has never been true.”

Pirate Politician Says Party ‘Rising as Fast as Nazis’ — Straight from the “you can’t make this stuff up” department.

‘Just Shut Them Down, Man’ — Also from Der Spiegel is this engrossing debate between German pop star Jan Delay and German Pirate Party member Christopher Lauer about copyright. The entire thing is worth a read; I especially like this quote from Delay: “To be honest, I got you on most of the points we’ve discussed so far. I don’t mean to be nasty, but apart from the copyright issue the whole Pirate Party thing is like someone going round saying, ‘Hey! We’re a party that wants free chocolate for everyone.’ A few non-voters might say, ‘Cool! Free chocolate! That’s the sort of politics I can relate to.’ But do you guys really have any solutions? Do you even know what you’re talking about? I believe you when you say you understand computers. But that’s about it.”

A Short History of Intellectual Property’ in Relation to Copyright — Justin Hughes traces the development of the term “intellectual property” in this scholarly paper. Copyright skeptics are quick to embrace a bumper-sticker version of history to make any point, such as the idea that this term is relatively recent. But as Hughes discovers, the truth is far more nuanced. An interesting read.

How Not To  Fix Copyright – My Response to William Patry — Here’s a great piece on William Patry’s latest book. William Patry offers a response in the comments.

Halestorm — Finally, I want to send some Pennsylvania love to an area band. Halestorm dropped their latest album earlier this month. If you like modern rock with a touch of glam, fronted by a fiery female singer, check them out. Their tune “Here’s to Us” was featured on an episode of Glee earlier this year. Go PA!

Last week, I noted the server problems this site was having. They extended into this week, making the site slow to load or unresponsive, but things seem to be back to normal now. Sorry for the inconvenience!

Kirtsaeng v. John Wiley & Sons — This week, the Supreme Court agreed to hear a case involving copyright’s first sale doctrine and grey market goods. SCOTUSBlog has more info on the case; also check out Andrew Berger’s analysis of the 2nd Circuit’s decision on that case when it was released last August.

Hulu Plus subscriptions hits 2 million, accelerates revenue — The online TV site continues to quietly chug ahead, with over two million paid subscribers. And if you haven’t already, check out the Hulu exclusive series Battleground, a very smart, well-scripted mockumentary that takes a behind the scenes look at a political campaign (available on regular Hulu, not just Hulu Plus).

The internet wants to be open, but some internets are more open than others — Google’s Sergey Brin had some interesting things to say this week. Dominic Young takes a look at Brin’s remarks in the Guardian where he complains about having to follow the law like the rest of us chumps, and how Google’s inability to crawl Facebook and Apple threatens innovation. “Is is really true that because data in apps is not crawlable it is ‘lost’?” asks Young. “I use apps all the time, and the data appears to be available to me.”

I Am the Girl with the Dragon Tattoo and Other Copycats Litter Amazon— The author of “I am the Girl with the Dragon Tattoo” published 10,000 books on Amazon, according to this article. “What’s worse is that Amazon has actually been helping these books come into fruition. All of the copycat books that Fortune found were made through CreateSpace, a division of Amazon that allows authors to create and self-publish their books.”

Supporting copyright is not the same as opposing freedom of speech — Helienne Lindvall reports on her participation in a debate over the ACTA. “I understand why many people would sign an online petition against Acta if they’ve been told it’s a threat to freedom of speech and privacy. I would have done the same if I hadn’t read through the actual agreement. And if I didn’t think counterfeit trade in any way impacted on me, it would be even easier to for me to say no without bothering to read it. Maybe that is why so many of the opponents of Acta have never seen a proposal for copyright enforcement that they wouldn’t say no to. But what we’re doing is the cultural equivalent of overfishing the lake.”

RapidShare Publishes Anti-Piracy Manifesto for Cyberlockers — The Swiss cyberlocker took a positive step this week by releasing a paper on “Responsible Practices for Cloud Storage Services.” The paper suggests several steps that cyberlockers can take to actively promote legitimate uses and discourage illegitimate uses of their services, “balancing the needs for safe, reliable, and private storage and communications with respect for intellectual property and the public interest inreasonable enforcement.”

In his four-part video, Everything is a Remix, filmmaker Kirby Ferguson makes a familiar argument:

Copy, transform and combine. It’s who we are, it’s how we live, and of course, it’s how we create. Our new ideas evolve from the old ones.

But our system of law doesn’t acknowledge the derivative nature of creativity. Instead, ideas are regarded as property, as unique and original lots with distinct boundaries.

I say familiar because if you’ve paid any attention to copyright issues in the last decade or so, you’re bound to have heard a variation on the claim. Other videos like Copyright Criminals take the same approach. Lawrence Lessig has written several books on the topic, and entire organizations like Creative Commons have been created to address and advance this claim. 1See Remix and Free Culture by Lessig. See also Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity; James Boyle, The Public Domain: Enclosing the Commons of the Mind.

This idea that copyright law hinders creativity is one of several ideas central to what could be called “free culture,” and it has fueled a great deal of criticism of current copyright law and opposition to enforcement efforts. Free culture scholarship has held sway in legal literature —  with many of its ideas cited by IP academics outside the free culture sphere — and enjoyed very little criticism until very recently.

In Remix Without Romance, UC Davis professor of law Thomas W. Joo provides a comprehensive and convincing critique of free culture scholarship.

Remix Without Romance

A highly recommended read. The abstract says:

A dominant argument in intellectual property scholarship asserts that technologies such as digital copying empower individuals to participate in the making of culture. Such participation involves individuals appropriating cultural material, “remixing” it with other elements, and “recoding” it by assigning it alternative meanings. By enabling more people to participate in culture, remixing and recoding supposedly enhance “semiotic democracy” and mitigate the dominance of the media industry. The same theorists who make this argument also tend to assert that copyright law is in need of significant reform because it inhibits recoding and thus stifles semiotic democracy.

This Article challenges the empirical assertion that law inhibits recoding—but it also questions the normative assumption that recoding is presumptively good for semiotic democracy. This Article focuses on a specific type of recoding: musical sampling (that is, the recoding of music through digital copying and other means). Sampling, particularly in hip-hop music, is frequently cited as a paradigmatic example of recoding that has been inhibited by intellectual property law. The legal history of sampling, however, suggests otherwise. Commentators have misread important judicial opinions about sampling and misunderstood the business practices of the music industry. At least in the sampling context, law has not prevented the reallocation of recoding rights by contract.

While markets have been able to reallocate sampling rights, however, such transactions do not necessarily advance semiotic democracy, because market failures afflict the marketplace of ideas. In the cultural context, as in the political and economic contexts, formally equal opportunity to participate does not result in equality of influence, and can in fact exacerbate power imbalances. For example, legal and technological innovations (such as digital copying and the Internet) can enable cultural underdogs to recode the messages of media conglomerates and other dominant cultural institutions. But those same innovations also allow dominant institutions to appropriate from the underdog—and dominant institutions can then use their influence to “drown out” those independent voices with recoded meanings. Moreover, recoding by its nature involves the incorporation and repetition of dominant cultural messages. Such repetition can propagate and reinforce dominant messages, resulting in the cooptation of recoding, regardless of the recoder’s intent. In short, recoding is not clearly conducive to semiotic democracy. Rather, it is full of internal contradictions that make its relationship to semiotic democracy an ambivalent one.

In short, Joo makes two claims.

First, many of the factual claims made by free culture advocates are incorrect. This is important. Amongst copyright skeptics, many question statistics about the economic benefits of copyright or effects of piracy and calls for more empirical evidence in copyright policy are common. Yet, as Joo demonstrates, many free culture arguments lack such empirical evidence. They may sound attractive, and they are repeated often, but do not hold up under closer scrutiny. In the article, Joo focuses specifically on musical sampling to demonstrate the differences between the facts on the ground and the narrative advanced by free culture scholars.

Second, Joo refutes the normative free culture claims that weakening copyright rules would increase participatory culture. He finds little reason to believe that “semiotic democracy” would be enhanced, and media dominance in culture would be reduced, if the law was reformed to better allow remixing and recoding.

I want to look at the first of these claims today.

Did Copyright Law Kill Sampling?

Thomas Joo focuses on “sampling”, especially sampling in hip-hop, because it is emblematic of the type of artistic practice free culture scholars focus on, and sampling has received so much attention from legal academics. Joo notes, “The hip-hop era has coincided with the digital age, and hiphop has become closely identified with recoding and particularly digital remixing. Indeed, the term ‘remix,’ which today is often used to refer to recoding practices in general, derives from pop music, where it has been used for decades to refer more narrowly to re-edited versions of records in hip-hop, disco, and other genres.”

The prevailing view is that sampling developed as an artistic practice in early hip-hop by flying under the radar of copyright law. Then, as a result of a series of lawsuits beginning in the 1990s, the legal landscape radically shifted. Sampling was declared copyright infringement and largely died out because of the cost of incorporating previously recorded music into new songs.

The prevailing view is wrong, according to Joo. “The narrative of a battle between copyright and hip-hop is an overdramatized myth that ignores the actual history of the interaction between law and musical recoding.”

Joo blames this myth on free culture scholars “thinking like a lawyer, not like an artist.” They overemphasise the effect of law on artistic practices: legal doctrines lag behind artistic innovation, which limits their “role to settling disputes over the proceeds from established practices.”

Joo marshals impressive research and analysis to support his claims. He begins by providing examples of “sampling” that pre-date hip-hop — and examples of recording artists getting and paying for permission to use such samples. The emergence of hip-hop in the late 1970s into the music industry did not change this.

Both turntablism and rap music made the transition from live performance to records, and the existing business practice of paying for permission to appropriate was, quietly and unremarkably, extended to hiphop records. Indeed, the practice dates to the very first commercially successful hip-hop record—yet it did not prevent hip-hop from becoming a dominant artistic and commercial force in popular music.

Infringement lawsuits involving sampling began to appear in the early 90s. The most frequently cited sampling cases, however, have been misinterpreted, and their effect exaggerated. Chief among these are Grand Upright Music v. Warner Bros. Records, (considered the first “sampling” lawsuit to go to court) and Bridgeport Music v. Dimension Films.

Joo on Grand Upright:

Copyright scholars are in general agreement that a 1991 opinion, Grand Upright Music v. Warner Bros. Records, suddenly and radically changed the legal status of sampling by declaring that sampling without copyright permission constitutes infringement. This general understanding is, in fact, a gross misconception of the opinion. Grand Upright did not even present the question of whether unlicensed sampling would constitute infringement, because the defendants conceded that it would. Indeed, the historical record, including the court records in Grand Upright itself, shows that the hip-hop community, from its earliest days, generally understood and respected the obligation to obtain and pay for permission to use samples in commercial recordings.

This “gross misconception” of the law and business practices surrounding sampling extends to Bridgeport, a 2004 Sixth Circuit decision that you’ll find in just about any discussion on copyright law and sampling since.

Joo points out that “Bridgeport is the decision of only one circuit, and not one that is especially influential with respect to copyright law,” and even so, the opinion appears  “to have been consistent with existing industry practices—practices under which sampling flourished. By the late 1980’s, it was well-established practice in the music industry to seek copyright permission both for lengthy, recognizable samples and for briefer, slice and-dice samples.”

Legal scholars often state that albums in the earlier years of hip-hop that made heavy use of sampling — the Beastie Boy’s Pauls Boutique and early Public Enemy albums are frequently used as examples — couldn’t be made today today because of copyright law. Joo argues that this is simply incorrect. These albums were made, after all, at a time when legal rules and business practices concerning samples were similar to today — not to mention that samples on many of those albums were cleared and licensed. The shift away from sample-heavy styles of music is more reflective of a shift in musical tastes than a shift in the law.

Joo’s takeaway: “As a historical matter … copyright law has not prevented the development of sampling.”

The Mythology of Free Culture

Remix Without Romance is a fascinating read for anyone interested in the issues discussed above. And it’s tremendously useful for its empirical contributions to copyright doctrine.

In my opinion, it is also an important work for critiquing free culture (and other copyright skepticism) scholarship. The “exaggerations” (to use Joo’s term) in such scholarship are not isolated to digital sampling — it is concerning how many similar claims are made in this area. In a way, large portions of free culture and other opposition to copyright have been built upon mythology. The effects of this scholarship aren’t limited to academia; free culture has become very popular online and in the general public, where these specious claims morph into talking points against copyright in toto.

References   [ + ]

In this series, I’ve been looking at the historical record to attempt to explain why the idea that there is tension between copyright law and the First Amendment took so long to appear — it was nearly two centuries after the Copyright Act of 1790 and the Bill of Rights were passed that the first legal journal articles appeared raising the question, and it wouldn’t be until 2003, in Eldred v. Ashcroft, that the US Supreme Court confronted the issue directly. (Read Part 1, Part 2, Part 3, and Part 4).

The point of this examination is not to advance any arguments about these claims, but rather to add to the debate. As the Court noted in Eldred, “a page of history is worth a volume of logic.” It’s not as if no one was concerned with free speech before the 1960s.

Today, I want to look at copyright law’s distinction between ideas and expression. The doctrine was present in the early days of copyright, and the modern day view that it serves as a First Amendment accommodation seems consistent with historical views on the scope of the freedom of speech and the press.

The Idea Expression Distinction as a First Amendment Accommodation

The idea that copyright’s distinction between idea and expression can serve to resolve any tension with the First Amendment was first articulated by Melville Nimmer in 1970. 1Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180. To Nimmer, distinguishing between idea and expression to protect free speech interests in copyright cases served as a “definitional balance” — a methodology developed largely by Nimmer. 2Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and others): An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment”, 39 Akron Law Review 483, 484 (2006).

The Supreme Court endorsed Nimmer’s view in Harper & Row Publishers v. Nation Enterprises. In the 1985 case, it said, “The Second Circuit noted, correctly, that copyright’s idea/expression dichotomy “strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” Eldred v. Ashcroft enshrined the doctrine as US law in 2003, calling the idea/expression distinction one of copyright law’s “built-in First Amendment accommodations.”

Nimmer premised the idea of the idea/expression distinction as a First Amendment accommodation on logic, but does it have any historical support? Because there is so little in the historical record of the relationship between copyright law and freedom of speech, it shouldn’t be surprising that there is no express evidence that anyone thought in Nimmer’s terms before his article. However, I think there is implicit evidence that, had the question been put to pre-20th century legal thinkers, they would likely accept Nimmer’s definitional balance.

Freedom of Speech and Freedom of Opinion

You can write books about the development of the freedom of speech, but for this discussion, it’s helpful to describe one of the dominant progressions of the concept during the 18th century.

The right to freedom of speech owes much of its existence to the liberty of the press. The liberty of the press resulted from the expiration of England’s Licensing Act in 1694. In the following decades, it was widely understood that government had no right to license the press; but what else the liberty of the press encompassed would be the subject of debate throughout the 18th century.

William Blackstone describes the conservative view in his Commentaries on the Laws of England:

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects.

A 2002 paper by Jeremy Ofseyer is particularly illuminating as one way to understand the backdrop of the 18th century experience that eventually led to the First Amendment. Ofseyer says:

England, like many other countries, had long enforced orthodoxy in matters of opinion. It did so in order to save the souls of heretics and out of fear that heterodoxy frays the social fabric and invites anarchy. According to this intolerant view, unorthodox opinions are not only false and offensive, but also inherently dangerous because they undermine established institutions and norms. Blackstone catalogued two main categories of opinion bans: offenses against God and religion and offenses against crown or government. 3Speech or Opinion? Two Objects of First Amendment Immunity, 2 Utah Law Review 843, 869-70.

Ofseyer notes that American liberal thinkers of the time, particularly Thomas Jefferson and James Madison, sharply disagreed with this view of the law as Blackstone described it:

Diversity of opinion is … the healthy product of freedom of thought and speech: “In every country where man is free to think and to speak, differences of opinion will arise from difference of perception, and the imperfection of reason  … .” For these reasons, Jefferson concluded that “the opinions of men are not the object of civil government, nor under its jurisdiction.”

According to Madison, there is a fundamental human property right to one’s “opinions and the free communication of them.” From this distinct, property-based premise, along with other premises akin to Jefferson’s, he reached the same conclusion: “Opinions are not the objects of legislation.”

Jefferson and Madison’s views were obviously not unanimously held at the time — before the 18th century was out, the U.S. Congress would pass the Alien and Sedition Acts, making it a crime to print or utter “any false, scandalous and malicious writing or writings against the government of the United States.” The Acts were very controversial at the time, and much of the debate was between proponents of the Blackstonian conception of the freedom of the press which permitted regulation of opinions and the liberal view that freedom of the press immunized liability for opinions. 4Compare Henry Lee, Report of the Minority on the Virginia Resolutions and James Madison, Virginia Resolutions.

The Idea-Expression Distinction in Copyright’s Early Days

One of the fundamental doctrines of copyright law, the idea-expression distinction limits copyright protection to the specific expression of a creator, leaving the ideas embodied in that expression free for all to use. The 1879 Supreme Court case Baker v. Selden is often cited as the earliest articulation of the idea expression distinction, but that is not exactly true.

The earliest discussions on the nature of copyright included a distinction between ideas — which remain free to the public — and expression — which is susceptible to protection by copyright. Discussions like these began in earnest after the passage of the Statute of Anne in England in 1710, and, though these same discussions continue to this day, toward the end of the 18th century, “all the essential elements of modern Anglo-American copyright law were in place.” 5Mark Rose, Authors and Owners: The Invention of Copyright (1993).

These essential elements include the idea-express distinction. Wrote English author and churchman William Warburton in 1762:

[H]e who obtaineth my copy may appropriate my stock of ideas, and, by opposing my sentiments, may give birth to a new doctrine or he may coincide with my notions, and, by employing different illustrations, may place my doctrine in another point of view : and either case he acquireth an exclusive title to his copy, without invading my property. 6An enquiry into the nature and origin of literary property.

Noted English jurist William Blackstone wrote of the doctrine in 1766. Blackstone used the term “sentiment” for “ideas” and “language” for “expression”.

Now the identity of a literary composition consists intirely in the sentiment and the language; the same conceptions, cloathed in the same words, must necessarily be the same composition: and whatever method be taken of conveying that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given. 7Commentaries 2:406.

English lawyer Francis Hargrave wrote in his seminal treatise An Argument in Defence of Literary Property (1774), “the use of ideas and knowledge is as common as it would be, if the right of printing was not appropriated.”

In Germany, philosopher Johann Gottlieb Fichte published Proof of the Illegality of Reprinting in 1793, which made a distinction between the material aspect of a book and the ideational aspect:

This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented.

…[T]he content of the book … can be the common property of many, and in such a manner that each can possess it entirely, clearly ceases upon the publication of a book to be the exclusive property of its first proprietor (if indeed it was so prior to publication, which is not always the case with some books nowadays), but does continue to be his property in common with many others. What, on the other hand, can absolutely never be appropriated by anyone else, because this is physically impossible, is the form of the ideas, the combination in which, and the signs through which they are presented.

It is clear that by the time the United States became independent of England and formed its own government, a distinction between ideas and expression was established in copyright law.

Freedom of Ideas, Protection of Expression

The distinction between ideas and expression in copyright law was recognized early on. At the same time, freedom of speech and the press was seen as vital to the protection of opinion and the dissemination of ideas and facts. The notion that the idea/expression distinction ensures copyright law’s compatibility with the First Amendment’s prohibition on laws infringing free speech would thus appear wholly consistent with historical conceptions of these freedoms and the law. Copyright does not bar the “free communication of” ideas, nor does it punish anyone for disseminating “bad sentiments.”

We can turn to James Madison for indirect evidence of this consistency. Madison, after all, proposed that the federal Congress should have the power to secure copyrights during the Constitutional Convention. Years before that, he sat on the Continental Congress committee that encouraged the States to pass their own copyright legislation and penned Virginia’s subsequently passed copyright act. Few of the Founding Fathers could claim more responsibility for Congress’s authority to make copyright law.

James Madison also was the first to introduce a Bill of Rights to amend the Constitution, although he had originally opposed the idea. What’s interesting is the language he chose regarding the freedom of speech. Madison’s amendment that would eventually become part of the First Amendment said, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments” (emphasis added).

Note that this is the same language used by William Blackstone when he described copyright, saying the “identity of a literary composition consists intirely in the sentiment and the language.”

William Blackstone was one of the most influential legal scholars to the Founding Fathers, Madison included. 8Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law and History Review 389, 399 (2010). And its possible the same language was a conscious choice. Bilder notes that Madison’s life showed a devotion to “the problem of language.” “He copied cases in which the presence of one word mattered.” His legal notes reveal questions that fascinated Madison, like “What did particular words mean?”

Madison cared about perspicuity. In one sense, he was not unusual in this regard, for perspicuity occupied the minds of late eighteenth-century rhetoricians. The word reappears in letters written during the Philadelphia Convention and his later correspondence. In Federalist 37, Madison famously wrote, “Perspicuity therefore requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them.”

This isn’t definitive evidence, of course. But it does support the idea that, had Madison and other Founding Fathers been confronted with the question of whether copyright law conflicts with the First Amendment, they would have accepted the Supreme Court’s holding that the First Amendment is accomodated by copyright law’s idea/expression distinction.

References   [ + ]

1. Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180.
2. Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and others): An Analysis of “Definitional Balancing” as a Methodology for Determining the “Visible Boundaries of the First Amendment”, 39 Akron Law Review 483, 484 (2006).
3. Speech or Opinion? Two Objects of First Amendment Immunity, 2 Utah Law Review 843, 869-70.
4. Compare Henry Lee, Report of the Minority on the Virginia Resolutions and James Madison, Virginia Resolutions.
5. Mark Rose, Authors and Owners: The Invention of Copyright (1993).
6. An enquiry into the nature and origin of literary property.
7. Commentaries 2:406.
8. Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law and History Review 389, 399 (2010).

My apologies to readers of this site this week. On Tuesday, my webhost began experiencing hardware issues that took Copyhype (and many other sites) offline. The site was up again by Wednesday, but since then, there have been lingering issues that have resulted in the site loading slow or timing out. Hopefully things will be back to normal soon!

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Meet The New Boss, Worse Than The Old Boss? — David Lowery (Cracker, Camper van Beethoven) expands on a talk he gave at this winter’s SF Music Tech Summit. A fascinating and illuminating discussion; be sure to also check out part 2, part 3, part 4, and part 5.

Grooveshark: Trolling The Sea Of Artists To Make A Buck? — Jeff Price of Tunecore has some strong words about the music streaming site that brags about not being licensed. “Grooveshark is a fish rotting from the head down. The people running it are immoral and could care less about who and/or what they hurt as long as they make money.”

Canard du Jour: Do you still have your personality after Google makes a copy? — Copyright and privacy are more closely linked than appearance suggests. The trouble is that arguments advanced to weaken copyright can also be used to weaken privacy rights — and, as Chris Castle explains, that’s fine by Google.

The Nimble Empire: In Defense of Cable (via John August) — On why the evolution of cable will be amazing and what critics get wrong. “Really, what the pro-piracy arguments come down to — at least in the United States, where most content is pretty ready available (a few exceptions aside) — is ‘this is legally available, but not at a price I am willing to pay,’ and/or ‘this is legally available, but not for a time that I am willing to wait.’ Or rather — ‘I insist that you immediately provide your content at a price and on a device or devices of my choosing.’ This is a newly emerging and oddly curious expectation towards media.”

The film tax credit works, and Western Pennsylvania is a winner (via The Mentally InFirm)— The Pittsburgh Post-Gazette reports on the positive effect that film and television production has on the Pennsylvania economy and how PA’s film tax credit has helped spur that production. The Post-Gazette notes, “Since the program’s inception, nearly $242.5 million in state tax credits have been approved and/or awarded to film production companies, which has resulted in estimated total economic activity of $1.8 billion and the creation and sustaining of almost 14,500 jobs statewide.”

Other Ways to Think About the Copyright Debate — At the Music Think Tank, Simon Tam asks, “Do we, as a society, value our artists and the arts as a whole? Do we appreciate them enough to support them so that the arts can continue to grow and that artistic expressions of ideas can be protected? Or do we believe that all artistic works should be free, no matter the cost, even if that cost includes the actual content creators themselves?”

The CCI and the Copyright Conspiracy — “What gets my attention is the rhetoric that consumers are owed better representation in the CCI than they’re currently receiving.  Of course consumers should advocate and argue for their interests, but why would they be owed representation in a private coalition, regulating a privately operated network?  Advocates like the Electronic Frontier Foundation argue that under-representation leads to the real problem of a lack of due process to consumers when the CCI cuts off their Internet access in the face of a copyright infringement allegation.  If your ISP restricts or cuts off your Internet access, how has it violated your ‘due process?’  How does it owe you “due process” in the first place?”

Q&A: Attorney Paul Smith of Jenner & Block Deciphers YouTube Appeal Decision — Paul Smith, the attorney from Jenner & Block who represented Viacom in its appeal against YouTube, discusses last week’s decision by the Second Circuit.

The 3 Types of Copyright Conversations — Jonathan Bailey labels these the ethical, legal, and practical arguments, and notes how quickly and easily they become conflated. “Copyright, piracy, Web freedom, privacy, etc. are all emotionally-charged topics but they are also absolutely critical to the future of the Web and our culture as a whole. It’s worth taking the time to get these conversations right.”

Art and Democracy: The NEA, Kickstarter, and Creativity in America — A fascinating comparison of arts funding by the National Endowment of the Arts and Kickstarter. “Right now, it’s not clear that Kickstarter is doing much more than offering a streamlined process for donations that would probably have happened anyway.”