Blurred Copyright Lines

The Marvin Gaye/Robin Thicke/Pharrell Williams “Blurred Lines” verdict is in; the hand-wringing has begun (see the selection of commentary below).

My reactions, as a non-musical copyright teacher:

1/ If musical traditions of borrowing, building, and evoking are so important — perhaps more important in music than in other cultural practices; perhaps not — then why-oh-why does the legal system hand so much power to juries in infringement cases? For copyright insiders: Would this case have been handled differently had it been pursued in the Second Circuit, where copyright defendants are reputed to have a somewhat easier time of things, rather than in the Ninth Circuit?

2/ Based solely on the information that is publicly available, it seems doubtful that an appeal of the verdict would be successful. The trial judge restricted the trial to infringement of the musical composition copyright in “Got to Give It Up,” effectively trying to prevent the jury from comparing the “sounds” of that song and “Blurred Lines.” Because “Got to Give It Up” was published as sheet music under the 1909 Copyright Act, I believe that the judge was right (had the song been protected under the 1976 Copyright Act, limiting the case that way might have been error). Maybe mistakes were made in the jury instructions? That strikes me as extremely unlikely.

3/ The popular music industry, at least the moneyed popular music industry (such as it is), will adapt and survive. Business is business; there is too much money at stake; deals will be struck. At that high level, the verdict may have distributive consequences — some people will get richer and some people will be less so — but the music will still get made, and mostly the same music. The real harm, if there is any, will lie in the “chilling effect” of the verdict on artists further down the music income food chain, who aren’t close enough to the mainstream to have cash available to be re-distributed and who can’t afford to play high stakes poker by making music without a permissions net. For them, it’s now a damned-if-you-do, damned-if-you-don’t scenario, with the ghost of Marvin Gaye in one ear and the ghost of George Harrison in the other. Even artists who try to play it safe and steer clear of the rough Williams/Thicke “did they dance too close to the” line may still fear claims, like those alleged against George Harrison (and more recently, by the Isley Brothers against Michael Bolton), of subconscious copying.

4/ More abstractly, I wonder about arguments that the copyright system is distorting some “natural” form of musicological progression, by discouraging borrowing and evolving existing themes, bass lines, vocal styles, and so forth. This isn’t sympathy for Marvin Gaye’s heirs; it’s a note that establishing a cultural baseline is difficult. Perhaps impossible. Can anyone predict with confidence what songs would be made (what music would be made — not merely songs) in the absence of copyright law? Artistic practice in any field is notoriously contingent. Who’s to say that the legal system should or should not “interfere” any more or less than broken or unavailable instruments or players or recording studios?

Why the Blurred Lines Copyright Verdict Should be Thrown Out (Tim Wu, The New Yorker)

What’s Wrong With the ‘Blurred Lines’ Copyright Ruling (Jon Caramanica, New York Times)

Squelching Creativity: What the “Blurred Lines” team copied is either not original or not relevant (Kal Raustiala and Chris Sprigman, Slate)

Ruling that ‘Blurred Lines’ copied Marvin Gaye song rocks music world (Los Angeles Times)

Why the ‘Blurred Lines’ $7.4 million verdict sets a new creative standard (Christian Science Monitor)

Copyright infringement expert calls ‘Blurred Lines’ ruling ‘nuts’ (WSMV – Nashville)

A SCOTUS Lesson: Yates and the Construction of Materiality

A fish is no doubt an object that is tangible,” but a fish is not a “tangible object” for purposes of Section 1519 of the Sarbanes-Oxley Act.

That’s the Supreme Court of the United States, in Yates v. United States, decided today.

What’s more, for copyright enthusiasts, “A tangible
object captured by §1519, we hold, must be one used to record or preserve information.” Not that copyright law itself had anything to do with this case. But limiting “objects” to “objects that record information” reminds me of copyright’s circular definitions of “copy” and “fixation.” A copy is an object in which a work is fixed; a work is fixed when it is embodied in a copy. Here, an object is something that records information. And something that records information (a “record”) is an object. Small wonder that four Justices decided that they wanted no part of this fishy business. But Justice Kagan’s dissent has to be right: You can hold a fish in your hand, and by any ordinary, sensible reading of the phrase “tangible object,” the fish counts. The Supreme Court can making something out of nothing, but can it really make nothing out of something?

@SCOTUSBlog coverage here.

@LanguageLog coverage here.

Scholarly IP Conferences Roundup from @PatentScholar

Intellectual property researchers, especially younger and newer researchers, may at times feel overwhelmed (or, alternatively, underinformed) regarding which conferences, symposia, workshops, and so forth are the “right” or “best” venues for sharing their work and meeting colleagues.

Lisa Larrimore Ouellette (@PatentScholar) has a brilliant post up at her Written Description blog that opens a dialogue about those concerns, and more.

Read: Academic IP Conferences, http://writtendescription.blogspot.com/2015/02/academic-ip-conferences.html

Pittsburgh: Lagging and Leading

There was an interesting juxtaposition in Pittsburgh economic development news last week, courtesy of the @pittsburghpg @rczullo:

Lagging: “Brookings high-tech list a holy Toledo moment.” According to a recent Brookings Institution report, Pittsburgh is lagging other metro regions in its concentration of so-called “advanced industry” jobs. (Here is a link to the full report.) It’s possible to parse the data so that Pittsburgh doesn’t look quite so bad, but really, the headline tells the version of the story that has legs.

Leading: “‘Code for America’ fellows aim to make Pittsburgh more transparent.” The city of Pittsburgh has used Code for America money to bring a small team of hackers to town to make public procurement more transparent. I can only imagine the folks and interests that will be disrupted by this. The PG reported: “Contracts and campaign contributions often are the fuel that powers political machines, but Mr. Peduto said he wants the three Code for America fellows who will spend a year in Pittsburgh to help open up city purchasing to small businesses and others who have been historically shut out of the process and strip away ‘that whole machine.'” Good for Mayor Peduto.

Something New for Law Reviews

More than a dozen years ago, students at my law school came to me and proposed that I become the faculty advisor to a new student-edited specialty law journal in technology law and policy. I agreed and navigated the proposed journal through our internal approvals process. Success! I proudly shared my mini-professional success, and my school’s advancing in the IP/technology law ranks, with a senior colleague who had been a mentor to me. Hearing the news that another specialty technology law journal had launched, the response was an underwhelming and almost incredulous “another one?”

Since then, I have worked with the students to make the journal relevant, sometimes with more success and sometimes with less. My message has always been: speak to the regional audience. Pittsburgh (like many re-emerging economies) is in dire need of thoughtful law and policy analysis.

Last Fall, at Concurring Opinions Dave Hoffman wrote a short piece summarizing his three-part advice to law review student authors and editors, including focusing their writing on shorter, more usable pieces. I’m happy to say not only that I agree with him, but also that at TLP, we have all three items on his list already in place and practice. The big one is: write short pieces about recent stuff, not bloated “notes” about appellate judicial opinions.

Over the last three years, Pittsburgh’s Journal of Technology Law & Policy has set its sails properly, and now the winds of progress are blowing in our favor. Beginning in the Fall of 2012, “TLP,” as the journal is known here, has focused much of its effort on publishing student-produced series of short law and policy pieces that address technology topics of interest to the Pittsburgh region. Each one is introduced by a short paper authored by a notable law and/or policy person, both to give the series some higher-level framing and to bring the series some of the public attention that it deserves.

The most recent of TLP’s “Student Article Series” is now online, at tlp.law.pitt.edu. The theme is “smart cities,” and the introduction is by Pittsburgh’s Mayor, Bill Peduto.