Politicizing copyright use

Various outlets are reporting that former Florida Governor Charlie Crist issued a YouTube apology to Talking Heads’ singer David Byrne for using the song “Road to Nowhere” without permission as part of Crist’s 2008 senatorial campaign.  Quoting from the ABA Journal:

In a written statement [dated 11 April 2011], Byrne said he had been surprised to learn that such unauthorized use of a song isn’t all that unusual, and said that he was "feeling very manly" about having protested rather than simply let the issue go.

"Other artists may actually have the anger but not want to take the time and risk the legal bills. I am lucky that I can do that," he stated. "Anyway, my hope is that by standing up to this practice maybe it can be made to be a less common option, or better yet an option that is never taken in the future." [emphasis added]

Such explicitly political use of artists’ music certainly has a long history.  Just a few weeks ago, the ABA Journal published an article by L.J. Jackson titled “Musicians Chafe at Politicians’ Misappropriations of Their Work” which demonstrates that

Crist’s legal problems are not unique.

In 1984, Bruce Springsteen made headlines when he objected to President Ronald Reagan’s use of his hit "Born in the U.S.A." as an anthem for his re-election campaign. The rock icon accused Reagan of subverting the true meaning of the song and playing it at rallies without his consent.

Those were the good old days, when an artist’s biggest campaign concern was a candidate using their tunes to pump up the crowd (permitted with a blanket performance license). But times, they are a-changing, and the proliferation of viral videos, YouTube, and Facebook has opened a Pandora’s box of copyright problems for politicians seeking pop-culture cred. [emphasis added]

Jackson doesn’t elaborate on the “blanket performance license” point, but it’s a major one that bears unpacking.  If a politician has the relevant blanket performance licenses from the relevant performance rights organizations (PROs), (s)he is allowed to play recording artists’ music at campaign rallies.  It doesn’t matter if the artist dislikes that particular politician any more than if (s)he dislikes a particular local radio DJ:  the politician (and the DJ) still have permission to play.

I think there are solid policy justifications for allowing such blanket licenses (and thus largely foreclosing artists’ ability to object to particular uses).  Aside from the enormous transaction costs that would be involved with case-by-case negotiation and approval, music clearly lies at the center of mainstream American culture.  Given music’s powerful emotional resonances which often extend well beyond the intent and control of the original artists, allowing artists to withhold public performance of their recorded music by particular non-profits, schools, businesses, or political campaigns seems perverse at best.  In extreme cases, such denials may even be tantamount to private censorship.

Whether you agree with my policy justifications or not, however, the fact remains that blanket performance licenses for live events already exist.  Thus, the question really is this:  why is the Internet any different?  What makes “viral videos, YouTube, and Facebook…a Pandora’s box of copyright problems” where none exist in the physical world of live campaign rallies, sporting events, or trade shows?

I submit that there really is no difference.  The same transaction cost and First Amendment justifications for blanket performance licenses apply with equal weight to Internet media.  To me, any policy difference appears to be simply a historical artifact.

A blogger at Clancco asks:

I wonder what the “free culture” lobbyists have to say about fair use, free culture, and the world is our public domain oyster when it comes to a Republican politician using an artist’s song without the artists permission? We certainly know what Byrne thinks…and it’s not good for Republicans.

I don’t know what “the ‘free culture’ lobbyists” would say, but my response is this:  the political affiliation of the music’s user should not matter one iota.  We can certainly have a policy debate, but that doesn’t mean the debate must (or should) be political.

It’s Friday, I’m in Love (With Copyright Law)

You’re no doubt one of the multi-millions who’ve seen Rebecca Black’s viral video Friday.  Or the “Bob Dylan” cover.  Or the Colbert-Fallon cover.

Anyway, you’ve probably seen it in one form or another.

Writing for The Hollywood Reporter, Aaron Moss (partner at Greenberg Glusker) provides a thorough analysis of the copyright issues surrounding the song itself and a brewing legal dispute between Black’s family and Ark Music Factory.  Over the course of the article, Moss cites the following rights/licenses implicated by Black’s viral video and its subsequent marketing:

  • copyright in the sound recording
  • copyright in the composition
  • mechanical license
  • digital phonograph delivery license
  • synchronization license
  • master use license
  • public performance license (in the composition)
  • digital public performance license (in the sound recording)

Confused yet?  You’re probably supposed to be.  As Moss puts it in the section explaining that the copyright in the sound recording and the copyright in the composition are two completely separate rights:

This rather unintuitive concept, by itself, has been enough to pay countless lawyers’ salaries over the years.

Or as Moss notes as an aside when explaining the concept of digital performance licenses:

As a result of the way copyright law has developed — which is to say, ad hoc, aimlessly, in fits and starts, and with plenty of lobbyist influence…

I highly recommend reading Moss’ entire piece.  It’s a good reminder of just how convoluted contemporary copyright law is and just how many actors (artists, session musicians, engineers, label personnel, etc.) may have to agree in order to exploit an existing song in a new way.

Licensing theater

Stanford’s Center for Internet and Society pointed me to a comprehensive study by the Social Science Research Council (SSRC) (Wikipedia backgrounder) on the effects of media piracy in emerging markets:

Based on three years of work by some thirty-five researchers, Media Piracy in Emerging Economies tells two overarching stories: one tracing the explosive growth of piracy as digital technologies became cheap and ubiquitous around the world, and another following the growth of industry lobbies that have reshaped laws and law enforcement around copyright protection. The report argues that these efforts have largely failed, and that the problem of piracy is better conceived as a failure of affordable access to media in legal markets.

“The choice,” said Joe Karaganis, director of the project, “isn’t between high piracy and low piracy in most media markets. The choice, rather, is between high-piracy, high-price markets and high-piracy, low price markets. Our work shows that media businesses can survive in both environments, and that developing countries have a strong interest in promoting the latter. This problem has little to do with enforcement and a lot to do with fostering competition.”

I’m looking forward to perusing the report, but there’s a threshold issue that I want to address:  SSRC has released the report itself subject to a “Consumer’s Dilemma” license:

[T]he CD license creates different paths to acquiring the report: first, we have an IP address geolocator that sends visitors from high income countries toward an $8 paywall when they download the report;  all other resolvable IP addresses get free access.  Second, and separately available, a ‘commercial reader’ license that costs $2000.

Why did SSRC set things up this way?  Licensing theater:

Maybe some clarification is in order here. If you are residing in one of the listed high-income countries, want to read the report, but think that $8 is an unreasonable price, you can acquire it for free through other means.  In fact, we have made it exceedingly easy to do so. If you fall under the terms of the commercial reader license but think that $2000 is unreasonable, you have the same options (plus the $8 option).  In both cases, the reader is faced with a dilemma: pay the legal price (roughly mapping ability to pay to a determination about whether the price is fair), acquire it through pirate channels, or don’t bother with it.  In most of the countries we’ve studied in this report, the results of this calculation with respect to DVDs, music, and software are strikingly consistent.  Media goods are highly desired, exorbitantly priced with respect to local incomes, and freely available through pirate channels.   High rates of piracy and tiny legal markets are the result. We’ve written 400+ pages about this dysfunctional form of globalization and its causes.

The resulting consumer dilemma is a ubiquitous experience in medium and low-income countries but one that confronts the American or European reader (or the media company employee conjured up by the commercial reader license) much less frequently and with much less intensity.  The global market is made for those consumers.  It is priced and distributed for them.  They are rarely faced with what they experience as ridiculous pricing for a DVD or book–or seriously disadvantaged by differential pricing.  The Consumer’s Dilemma license is a way of reversing that equation and, in the most minor ways,  requiring an explicit engagement with it.  Among the surreal aspects, that simple choice can subject you to crushing civil and criminal penalties, but you can rest easy knowing that only very rare, arbitrary examples will be made (and none in our case).  Now that’s theater.  Our license has a theatrical side, to be sure, but it also stays true to the experiences  documented in the report.

Well done, SSRC.  Now I’m really curious to read the report…

Update: TechDirt has posted an initial analysis of the report here.