Tag: Copyright Law

Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution – Note by David Nelson

From Volume 78, Number 2 (January 2005)
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“We are at a moment in our history at which the terms of freedom and justice are up for grabs.” Every major innovation in the history of communications – the printing press, radio, telephone – saw a brief open period before the rules of its use were determined and alternatives were eliminated. “The Internet is in that space right now.”

The technology of the Internet has revolutionized communication and information distribution throughout the world. The direction of this revolution, however, will be determined in large part by how the law chooses to regulate this new medium.

Currently, one of the most important debates over the Internet involves the future of copyright law. The outcome of this debate will likely determine whether, as Stanford Law School Professor Paul Goldstein argues, property rights will extend “into every corner in which people derive enjoyment and value from literary and artistic works” with “a price tag attached to each use,” or whether, as Thomas Jefferson advised, ideas will “freely spread from one to another over the globe.”

This Note examines the issue of copyright as it pertains to recorded music and demonstrates that copyright protection for recorded music can no longer be justified as necessary for the promotion of artistic creation.

 

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Too Many Markets or Too Few? Copyright Policy Toward Shared Works – Article by Michael J. Meurer

From Volume 77, Number 5 (July 2004)
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The lawfulness of sharing copyrighted works has always been contested, but never so hotly as it is today. The marriage of digital technology and information products creates remarkable opportunities for digital file-sharing, and new disputes asking when copyright law should give copyright owners control over sharing of copies of their works. This Article broadens the terms of the sharing debate by recognizing that file-sharing is just one member of a diverse set of sharing behaviors that occur in copyright protected markets. Books and recorded movies are shared by lending – books are lent by public libraries at no charge, while movies are rented for a fee. Owners of copyrighted works often share their copies by performing them for an audience. The audience might be children listening to a bedtime story, friends watching a recorded movie together, patrons at a bar listening to recorded music, and so forth. Finally, users share many sorts of works via private reproduction using computers, video and audio recorders, photocopiers, and scanners.

Copyright law specifies a mixed pattern of rights over sharing. Copyright owners have worked effectively to exert control over many forms of sharing, but powerful business groups have defended users’ sharing rights as a means of increasing their profit. The two sides have wrestled in Congress and the courts over the scope of various copyright provisions, especially the fair use doctrine, the main arena for conflict over sharing rights and the main focus of this Article. 

 

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Underground Appeal: A Sample of the Chronic Questions in Copyright Law Pertaining to the Transformative Use of Digital Music in a Civil Society – Note by Chris Johnstone

From Volume 77, Number 2 (January 2004)
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Throughout the 1970s, the Bronx borough of New York City was perceived as a microcosm of desolate American urban hopelessness. Within this economically barren wasteland, the city’s culture cultivated a colorful new form of musical art, organically sown from the seeds of the past. What was born as a fringe musical movement has evolved into an American cultural mainstay. Today, hip-hop music experiences tremendous mainstream success, both as a credible art form and as a business. Yet the success and proliferation of this genre has largely relied on the use of samples of past funk, rock, and soul compositions.

Copyright law was established as a mechanism for the promotion of innovation. In the realm of digital sampling, however, its role remains somewhat unclear. It is obvious that unauthorized copying of original compositions should be unlawful, but the extent of this protection remains a doctrinally elusive concept when applied to small or manipulated fragments of music. Specifically, the issue of digital sampling suffers from a lack of clear judicial guidance. Although sampling can clearly be translated into standard copyright doctrine, its exact fit has yet to be definitively declared by the judiciary. District courts have only sporadically tackled the topic, deterring potential litigants who fear the consequences of inconsistent doctrinal application.

This Note will look at the issue of digital sampling through the lens of recent commentary that suggests that copyright law exists, in large part, for the purpose of reinforcing democratic principles such as informed debate, pluralism, and civic participation. It will attempt to unravel the tangled doctrine regarding digital sampling to demonstrate the pitfalls of the present regime, and will later suggest more appropriate guidelines for the recording industry that will minimize unnecessary fees and eliminate deadweight economic loss.

 

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Copyright Law and Free Speech After Eldred v. Ashcroft – Article by Michael D. Birnhack

From Volume 76, Number 6 (September 2003)
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Eldred v. Ashcroft, as decided by the Supreme Court in January 2003, added another chapter regarding the relationship between copyright law and freedom of speech to the judicial “chain novel” that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (“CTEA”), which extended the copyright term by twenty years, both for existing works and for new works. As in previous chapters, the Court reached the conclusion that there is no conflict between the two legal fields. It repeated the judicial sound bite that “the Framers intended copyright itself to be the engine of free expression.” Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer a new direction to the conflict discourse, or at least a potential for redirection.

Eldred raises many intriguing copyright law and constitutional law questions. Here, however, I wish to focus on the possible ramifications the case might have on the conflict discourse with respect to its constitutional level. Surprisingly, Eldred is the first facial constitutional challenge to copyright law in 213 years. As copyright law continues to expand into new territories and in unpredictable ways, and as new bills are introduced at a staggering rate to further the scope of the rights of copyright owners, it is crucial that we study the contours of copyright law. This need is especially acute in light of the Court’s comment that “[w]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

In this Article, I wish to challenge the constitutional dimension of the judicial rejection of the conflict argument, which concerns the conflict between copyright law and the First Amendment. I will structure the critique along the lines of an important distinction. When we pause and ask what it is that the courts have been denying in rejecting the conflict argument, we see, after close study of over thirty cases that addressed the conflict argument, that, surprisingly, courts reject different things at different points. This leads us to identify two kinds of conflict: one is internal to copyright law, and the other is external to it. These two conflicts derive, respectively, from an internal view of the relationship of copyright law and free speech, and also from an external view.

 

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Copyright Law As a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright’s Diversity Externalities – Article by Guy Pessach

From Volume 76, Number 5 (July 2003)
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The main argument presented in this Article is that the harms and social costs of copyright cannot be summarized just in terms of enclosure and exclusion. Copyright law, I will argue, also has a silencing effect toward noninfringing creative materials of other independent creators and producers.

Recent scholarly work has emphasized copyright’s “dynamic effect,” that is, the ongoing influence of expansive copyright protection toward an enclosure of the creative commons, and diminishment of cultural diversity. On the whole, however, this broad approach regarding the social cost of copyright in terms of diversity has focused only on instances and frameworks of creative activity in which a secondary author wishes to make use of existing copyrighted material, while a copyright owner (often a media conglomerate) imposes obstacles and limitations against such a use.

The argument presented in this Article goes one step further in exploring the nexus of copyright and diversity. As I will show, an expanded copyright regime diminishes diversity in a more intrusive manner. Extensive copyright protection also has a chilling effect on the variety and diversity of creative works that are both noninfringing and not affiliated to copyright portfolios, or to the communicative activity, of commercialized corporate media. This outcome derives from the advantages extensive copyright protection affords to excessive exposure of corporate media’s creative materials, as well as to the economic and cultural dominance of these media products.

 

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