Mike Masnick takes up the question of the conflict between copyright and freedom of expression link here. I have to admit it came as a revelation to me. Is there any way to argue that copyright doesn't limit one's freedom of expression? If you think it does as I now do, then your argument conflicts with the First Amendment of the Constitution which says "Congress shall make no law... abridging the freedom of speech...."

This provision clearly conflicts with Article 1 Section 8 which gives Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;...."

I am no lawyer, but since the first amendment was passed on March 4, 1789 after the Constitution was ratified on September 25, 1789, it would logically override that part giving Congress such power (for dates link here). Of course, there is never any certainty about how the Supreme Court may decide an issue.

Mike recommends a book which I haven't read yet, but his statement is pretty strong. He says David Lange and Jefferson Powell, the authors of No Law, "spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment." They apparently backslide in the second half.

I do take personal exception to Mike's comments on the State Department officials toadying to the IP interests. As a middle aged and fairly senior diplomat, I had to try to enforce our IP agreements with the Korean government. I had no option to express an opinion, but instead was told to enforce what I was told was the law.

Today's New York Times editorial page takes up orphaned works covered by copyright, keying off on the bequest of recordings by jazz masters to the National Jazz Museum in Harlem link here. The problem is identifying the performers and finding them to offer them compensation under the current version of the copyright law. Without that, they won't be reproduced and the works widely distributed. The Times solution is an amendment to the law which would make it possible after a good faith search and undertaking to pay should the performer surface.

The Times notes the bill is unlikely to pass and wrings its hands. What it really needs to do is point out that performance copyright is valid for the life of the performer plus seventy years, an absurdity given the constitutional provision that copyright is ostensibly designed to promote innovation -the current value of such a right beyond twenty or so years is virtually worthless if discounted by an appropriate interest rate- unless you are Walt Disney interested in preserving its control over the image of Mickey Mouse et al. No wonder the current law is known as the Disney Relief Act. In the meantime, the consumer pays in higher prices or the work is unavailable.

David Post over at the Volokh Conspiracy has thoughts on the matter worth reading here:

http://volokh.com/2010/08/18/the-high-cost-of-copyright/

The New York Times Sunday Magazine ran a long article on enforcing fees for playing copyrighted music as background for bars and other establishments link here. As is so often the case, nothing in the article suggests that doing so is controversial. No reference is made to the constitution's basis for copyright, much less its reason, promoting innovation. Instead it notes only that copyright was amended in 1909 providing for "performance rights" and that the change was blessed by the Supreme Court, quoting Oliver Wendall Holmes, "If music did not pay, it would be given up. Whether it pays or not, the purpose of employing it is profit and that is enough."

The article goes on to quote Larry Lessig with the only dissenting view, and even that is equivocal: "If technology creates efficient ways to charge commercial users of copyright, then that's good, but what I fear is that we evolve into a permission culture, where every single use of music creates an obligation to pay. I wish the line could be as clear as commercial exploitation--you're running a dance club, using it in a movie. The author ought to have the right to be paid for that. But I don't think that that right should translate into the right to control whether my kid uses the music for a collage he makes for a class about his trip to Costa Rica."

The article also fails to note that there has been criticism of how the royalty administering organizations distribute the money and account for what they do, as is clear from the Wikipedia article on ASCAP link here. Instead it is an account of how one of BMI's enforcer's is really very nice and works hard to deal pleasantly but firmly with the poor bar owners and other small businesspeople that use music to attract customers.

To me this simply looks like a lot more lawyers and others with little or nothing to do with the original performance who have found another way to extract money for themselves with no increase in the public good. We are looking at the modern version of the highwayman and asked to admire him.

A claim arguing both copyright infringement and moral rights infringement looked for $27 million in damages. (Plus, amongst other things, the goods and services tax on the monetary awards.) By the end, the Honourable Mr. Justice Russell of the Federal Court of Canada determined that the defendants' copyright misdemeanor was confined to posting the plaintiff's work on their website, without his consent. Justice Russell did not conceal his opinion of the plaintiff's conduct; "The evidence adduced concerning infringement of copyright suggests that the Plaintiff's claims are disproportionate and opportunistic."

It reads like a work of fiction; a long-time business association that went sour, third parties caught in the crossfire, and a proposed corrective that involved transacting funds in a Caribbean country of the plaintiff's choice. The effort to secure significant statutory damages earned some choice words from Justice Russell, "There is no evidence of any market for the Report and the conduct of the Defendants during the proceedings has been consistent with parties simply trying to resist the Plaintiff's inflated demands for $27,000,000.00."

The $500 awarded to the plaintiff is the minimum permitted for statutory damages by Canadian law. The claims for punitive and aggravated damages were unsuccessful.

Reposted with permission from Creative Commons:

ASCAP's Attack on Creative Commons

The American Society of Composers, Authors and Publishers (ASCAP) has launched a campaign to raise money from its members to hire lobbyists to protect them against the dangers of "Copyleft." Groups such as Creative Commons, Public Knowledge, and the Electronic Frontier Foundation are "mobilizing," ASCAP describes in a letter to its members, "to promote 'Copyleft' in order to undermine our 'Copyright.'" "[O]ur opponents are influencing Congress against the interests of music creators," ASCAP warns. Indeed, as the letter ominously predicts, this is ASCAP's "biggest challenge ever." (Historians of BMI might be a bit surprised about that claim in particular.)

As a founding board member of two of those three organizations, and former board member of the third, I guess I should be proud that a 96 year old organization would be so terrified of our work. And I would be if there were anything in this fundraising pitch that was actually true.

But there is not. Creative Commons, Public Knowledge and EFF are not aiming to "undermine" copyright; they are not spreading the word that "music should be free"; and there is certainly not yet any rally within Congress in favor of any of the issues that these groups do push.

I know Creative Commons best, so let me address ASCAP's charges as they apply to it.

Creative Commons is a nonprofit that provides copyright licenses pro bono to artists and creators so that they can offer their creative work with the freedom they intend it to carry. (Think not "All Rights Reserved" but "Some Rights Reserved.") Using these licenses, a musician might allow his music to be used for noncommercial purposes (by kids making a video, for example, or for sharing among friends), so long as attribution to the artist is kept. Or an academic might permit her work to be shared for whatever purpose, again, so long as attribution is maintained. Or a collaborative project such as a wiki might guarantee that the collective work of the thousands who have built the wiki remains free for everyone forever. Hundreds of millions of digital objects from music to video to photographs to architectural designs to scientific journals to teachers lesson plans to books and to blogs have been licensed in this way, and by an extraordinarily diverse range of creators or rights holders including Nine Inch Nails, Beastie Boys, Youssou N'Dour, Curt Smith, David Byrne, Radiohead, Jonathan Coulton, Kristin Hersh, and Snoop Dogg, as well as Wikipedia and the White House.

These licenses are, obviously, copyright licenses. They depend upon a firm and reliable system of copyright for them to work. Thus CC could have no interest in "undermining" the very system the licenses depend upon copyright. Indeed, to the contrary, CC only aims to strengthen the objectives of copyright, by giving the creators a simpler way to exercise their rights.

These licenses are also (and also obviously) voluntary. CC has never argued that anyone should waive any of their rights. (I've been less tolerant towards academics, but I have never said that any artist is morally obligated to waive any right granted to her by copyright.)

And finally, these licenses reveal no objective to make "music free." Nine Inch Nails, for example, have earned record sales from songs licensed under Creative Commons licenses.

Instead, the only thing Creative Commons wants to make free is artists free to choose how best to license their creative work. This is one value we firmly believe in that copyright was meant for authors, and that authors should have the control over their copyright.

This isn't the first time that ASCAP has misrepresented the objectives of our organization. But could we make it the last? We have no objection to collective rights organizations: They too were an innovative and voluntary solution (in America at least) to a challenging copyright problem created by new technologies. And I at least am confident that collecting rights societies will be a part of the copyright landscape forever.

So here's my challenge, ASCAP President Paul Williams: Let's address our differences the way decent souls do. In a debate. I'm a big fan of yours, and If you'll grant me the permission, I'd even be willing to sing one of your songs (or not) if you'll accept my challenge of a debate. We could ask the New York Public Library to host the event. I am willing to do whatever I can to accommodate your schedule.

Let's meet and address these perceived differences with honesty and good faith. No doubt we have disagreements (for instance, I love rainy days, and Mondays rarely get me down). But on the issues that your organization and mine care about, there should be no difference worthy of an attack.

Meanwhile, you can read more about Creative Commons here, and support its response to the ASCAP campaign here.

Even the Wall Street Journal is stepping in -- even if it is the Weekend Journal.

Woodlief, Tony. 2010. "Curse of the Greedy Copyright Holders." Wall Street Journal (9 July). http://online.wsj.com/article/SB10001424052748704608104575220551906611796.html?mod=ITP_weekendjournal_6

"When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs. I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests -- or theirs -- are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?"

Talking Points Memo tells us that Nevada Senatorial candidate Sharon Angle, running against Senate Majority Leader Harry Reid, has sued him for violating copyright link here. He had posted her old website after she took it down and rewrote her old far-right positions used to win the primary, in favor of more moderate ones.

Reid did take down the copy, after stating that he had made his point about her retailored views.

This interesting abuse or misuse of copyright law again shows an old fox obeying the law but getting what he wanted, including great publicity in a campaign where it is not all that easy to get news coverage.

Rufus Pollock has been looking into what the public domain doesn't look like. Here is a post with details.