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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.


The Copyright Catch 22

My review of Music and Copyright by Ronald S.Rosen on my site has led to an interesting correspondence with the author, Ron Rosen, which serves to illustrate the difficulty which any open minded copyright lawyer can have in actually debating copyright issues.

Ron, if you will recall, was the attorney for the composer John Williams who was sued for allegedly copying a phrase which he used in the score for the movie "E.T. The Extraterresterial". After four years of litigation the dispute over a commonplace musical phrase ended successfully for Mr Williams and Ron Rosen. Hence this book which outlines the importance of expert testimony in cases involving music - and provides insights into some of the novel arguments which might today be presented in cases involving mash-ups.

I was critical of one aspect of the book. I said "The main difficulty with this book is its use of musical notation. Understanding a music copyright case without being able to hear the actual music does not work well. I would like to see Rosen make a video lecture of parts of his book - possibly as a TED talk - since only then could the non-musical reader gain an understanding of the complexities of bringing and defending musical copyright claims. Put the video on a YouTube, link it to a website selling the book and Rosen will have created a resource for all lawyers and creative people worldwide."

However Ron e-mailed me to say "...A propos your comment about the need for aural examples, that is something we wanted to do for this edition, but as a new publication, the need for licenses and the budget foreclosed our doing so. "

The thought that Ron would need 'licences' merely to illustrate an academic argument had never occurred to me - although it should have. I responded "...I now fully understand why you have not illustrated your book by way of a video - but what an extraordinary position to be in. You really find yourself in a "Catch 22" - since, as a copyright attorney (who will be presumed will be fully aware of the law in this area) you need the permission of the copyright owners to illustrate, in an intelligible manner, the fact that their copyrights are likely to be worthless. If ever there was a case for compulsory licensing and fair use this is it. If you were doing this in the courtroom you would be free to do so. But instead if you just went ahead and put a video lecture on the web you would open yourself up to a law suit and heavy damages. The law of copyright has serious chilling effects today. I wonder what Larry Lessig and James Boyle would think about the situation you find yourself in."

Ron replied "Thank you for the comments, which are right on the mark. If we are fortunate enough to publish a second edition, we might be a position to secure licenses for small portions of the sound recordings at reasonable rates. If, however, the current edition is highly successful, we may be able to get licenses for the second edition in exchange for crediting the record companies for the use of these extracts, if the composition is in the public domain. If, however, the music itself is also protected by copyright, we would need licenses from both the copyright owner of the sound recording and the owner of the copyright in and to the music. Looking over this paragraph, you will notice a lot of "ifs", which sums up the situation."


   

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