Mike Masnick’s line-by-line reply:  http://www.techdirt.com/articles/20120208/01453517694/riaa-totally-out-touch-lashes-out-google-wikipedia-everyone-who-protested-sopapipa.shtml

Hat tip to Lauren Gelman.

Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startling fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

In an interview with Texas Monthly, Robert Earl Keen discussed the release of his new album, which contains a song called “The Road Goes On and On.”  Apparently, the melody in Toby Keith’s song “Bullets in the Gun” sounds remarkably like Robert Earl Keen’s well-known song “The Road Goes On Forever.”  But instead of suing Keith, Robert Earl Keen decided to approach the situation differently: “[I]nstead of getting really ugly about things—I don’t really believe in lawsuits or threats—I took the Alexander Pope road and answered this guy in song.”

The song is called “The Road Goes On and On.”  While it doesn’t name Toby Keith explicitly, Keen acknowledges that the song is about him, and the song describes Keith in a variety of ways, including, as a “goldilocks . . . all duded up in [his] Cowboy Crocs singing the same old song.”  (Does Keen mean crocodile-skin boots, or the popular Crocs-brand shoes?  I find the latter interpretation much funnier, and I did see multiple, if random, internet references to Toby Keith wearing Crocs…)  Some of the lyrics include:

I don’t care what you say

I never liked you anyway

Wouldn’t give you the time of day

If I had the time to spend

You’re malicious and downright cruel

Superstitious, so uncool

Best wishes, you loudmouthed fool

I hope I never see you again

You’re a regular jack in the box

In your clown suit and your goldilocks

The original liar’s paradox (you’ll have to Google that)

How in the hell do you think you’ll make it

When the real test comes and you just can’t fake it

Your sycophants say they can’t take it and leave you lyin’ flat

Interesting alternative to the C&D.  Now we can wait and see if Google writes a song about how Robert Earl Keen shouldn’t use “Google” as a verb…

As I mentioned in my comment on Megan’s post I’ve been reading a lot lately about the act of creating literary works.  A number of people have spoken about the creation of literary narratives in the context of Jung’s theory of the collective unconscious and Campbell’s theories of all stories being based on a given set of mythological or classical narratives.  In short, if you subscribe to these theories, you accept that human literary narratives come in a relatively small group of basic structures and what changes from culture to culture and author to author is the expression of the tale.  Thus, one would have to be careful in copyright terms not to protect literary works at too high a level of abstraction for fear of really cutting off major routes of creativity following a particular narrative path.

Over the weekend I was reading a book by Bailey on constructing narratives and his suggestion about what differentiates one narrative from another within a particular genre or story structure is basically the characters, rather than the plotlines.  This got me to wondering whether copyright law should focus more on protecting characters with respect to literary works and less on protecting stories and plotlines.  This would certainly make authors/publishers happy when they are trying to stamp out derivative works – which may or may not be a good thing depending on your perspective.  (As readers of my work will know I kind of like promoting things like fan fiction and fan mashups although I’m also sympathetic to author and publisher arguments about avoiding unjust enrichment in a commercial sense based on others’ characters and situations.  It’s all a – very difficult – question of balance as we all know.)

I remember some years ago when I studied copyright in the UK and Europe, there was much less readiness in those countries to protect characters via copyright than there seems to have been in the U.S. at the same time.  I’m wondering if people have thoughts on the copyrighting of characters perhaps as an alternative to focusing on storylines and given levels of abstraction with respect to the substantial similarity question for infringement purposes.

Obviously copyright is supposed to only protect the expression of a given storyline in any event but from time to time courts take things to higher levels of abstraction when assessing substantial similarity questions.  Does focusing rather on protecting characters create a better balance or not?  And does this approach argue in favor of sector-specific copyright principles?  Obviously you can only protect characters in literary and dramatic works ie works that actually HAVE characters (probably also including video games).  And what of Second Life, avatars etc?  Thoughts, Prof Boyden??

Case Western Reserve’s Journal of Law, Technology & the Internet is searching for a final article to publish in its spring edition. Any scholarly work related to cyber law, intellectual property law or the intersection of technology and the law will be considered. This is a great opportunity to see your research in print and online by the end of the spring semester. The Journal of Law, Technology & the Internet is a recognized student journal at Case Western Reserve University School of Law located in Cleveland, Ohio. Please forward all submissions, along with a CV or cover letter, to the attention of:

dtc22@case.edu | (734) 812-7373

An interesting episode of the show Radiolab addressed in part the question of romantic authorship and the muse.  In “Me, Myself, and Muse,” Jad Abumrad and Robert Krulwich question whether there is something more than individualistic, independent authorship to the act of creation.  In the podcast, Elizabeth Gilbert (author of “Eat Pray Love”) talks about an interview she did with Tom Waits for GQ, where he asserts that each song comes into being with its own unique identity, and that there is some sort of a muse involved, an “external collaborator,” one that he talks to, negotiates with.  Waits described one day driving down an LA freeway when a melody came into his head.  He was in traffic, had no pen or paper or recorder to capture the tiny and beautiful piece of music.  So, he decided to talk to that song, saying, “Excuse me.  Can you not see that I’m driving?  If you are serious about wanting to exist, then I spend eight hours a day in the studio.  You’re welcome to come and visit me when I am sitting at my piano.  Otherwise, leave me alone and go bother Leonard Cohen.”  Elizabeth Gilbert talks about relying on this external component of authorship and sweet-talking it when necessary, commenting, “I know the difference between something I thought of and something I was given.”

Songwriters often say similar things.  Townes Van Zandt said the song “Pancho and Lefty” came to him in a dream, fully formed, and he wondered for years what it was about.  It is widely known that Paul McCartney claims the song “Yesterday” also came to him in a dream.  Bob Dylan, in his interview with Ed Bradley on “60 Minutes,” describes how he wrote “Blowin’ in the Wind” in 10 minutes (at 1:12).  He describes the process as some kind of magic (and clarifies that it is not the Siegfried and Roy kind of magic), and that he has no idea how he wrote “Blowin’ in the Wind” except to say that “it came from… um… like, um… right out of that wellspring of creativity, I would think.”

[T]he key issue is to think about why we choose novelty over immersion. Why do we choose convenience—the speed of consumption—over the sensory qualities of a consumption experience?

What [Simon] Reynolds dubs retromania seems a paradoxical way for capital to proceed to secure ideological dominance, but it makes a diabolical sort of sense: get novelty and innovation on the cheap by recycling the ready-at-hand past. This has the added bonus of fusing the new with the familiar, so consumers can appease two contradictory longings simultaneously. Nostalgia and novelty fuse in a new kind of cultural artifact, which Reynolds spends a lot of time cataloging: stuff like I Love the ___’s, reunion tours, bands playing their old albums in sequence, Web 2.0 music like Flying Lotus, Girl Talk, etc.

The fusion of “new and the familiar” also reminds me of the ideas of “flocking and differentiation” in the Hemphill/Suk article on fashion. Rather than being epiphenomenal, one more sad aspect of status anxiety, fashion to Hemphill and Suk is an authentic expression of a broader dialectic of individual self-creation: to both conform to social norms and to distinguish oneself from them. Christening these impulses “flocking” and “differentiation” (respectively), Hemphill and Suk see fashion as not merely an economic phenomenon, but a cultural one, reflecting deep-seated human needs. But a rapid and fruitless cycling between bedazzlement and boredom could just as accurately characterize fashion trends as an ennobling narrative about “flocking” and “differentiation.”

Who knows whether fashion, or the fused nostalgia/novelty Horning describes, is a component of authentic self-expression, or a form of false consciousness? As Denis Charles Philips explains, “many rival narratives can be devised by an individual to account for a given action, just as, in natural sciences, many rival hypotheses can be invented to account for any finite body of data.” The law of culture can be vexing in part because we can disagree so profoundly about the right narrative “frame” for the phenomena we encounter.

It’s tempting to simply refuse to give an account of value, or even intention, in some circumstances. When we move from processes of appreciation to those of creation, that’s an increasingly popular strategy. Richard Prince appeared to retreat to the realm of the non-rational at a recent deposition in a celebrated copyright case:

In a deposition in the case that was recently published as part of an unlikely art book by the writer and director Greg Allen, lawyers for [plaintiff] Mr. Cariou follow [defendant] Mr. Prince deep into the strange and often trackless territory of artistic intention. About as close as they get to pinning him down is that he wanted to use the borrowed pictures to explore his fascination with the painting of Willem de Kooning and also thought of his collages and paintings as part of an idea for a movie about a post-apocalyptic world in which Rastafarians, famous literary lesbians and others commandeer hotels on St. Bart’s.

“So what are four lesbians from the early 20th century doing on St. Bart’s in, now, when there’s a nuclear war, like why are they there?” a lawyer asked Mr. Prince, who responded: “Your guess is as good as mine. That’s what I do, I make things up.” At another point in the transcript of the deposition, a lawyer asked, “What is the message?” Mr. Prince replied, “The message is to make great art that makes people feel good.”

Maybe Prince also answers Horning’s initial question, “why we choose novelty over immersion”? Or perhaps we should turn to Sven Birkerts, who observed, in The Gutenberg Elegies, readers “awed and intimidated by the availability of texts, faced with the all but impossible task of discriminating among them, [tending] to move across surfaces, skimming, hastening from one site to the next without allowing the words to resonate inwardly.”

Information overload has an aesthetics; only time will tell if it’s deep or shallow. While that debate rages on, Horning grounds us in the material foundations of an oppositional stance:

Value now is captured by harnessing the filtering that consumers perform for one another, monitoring the lateral cultural chatter and trying to time the implied markets. This is another aspect of the retromania phenomenon. Amateur bricoleurs sort through the digitized detritus of the past (Danny Kirwan solo albums, Falco, etc.), trying to make cultural capital out of it. How one feels about the question of resistance probably depends on how successful one is at that task.

The lords of the memes (or, in Jaron Lanier’s terms, lords of the clouds) aren’t complaining, and support a fair number of projects designed to defend the status quo. But we also need to think about the cultural consequences of a class of newly empowered sorters, filterers, and curators centrifugally pursuing their bliss. A literature criticizing the narcissism of the “daily me” has already done that for politics and journalism. Can a similar project work in culture, without being abrasive, elitist, or sectarian? Spiritual traditions attempt to identify the enduring truths, forms of beauty, and institutions of justice that contribute to human flourishing. Do they have a place in the normative evaluation of culture that lies a bit beneath the surface of legal cases like Prince’s? Could a new Adorno enliven the rights/utility literature in this area, which seems to have hit a dead end? Remix culture owes a great deal to postmodernism. Perhaps a critique of it will need to rely on both religious thought’s appreciation of tradition and critical theory’s willingness to interrogate enlightenment accounts of autonomy.

Image credit: Siebren Versteeg and whatever random viewer caused those images to appear on the touchscreens.

An emerging by-product of Pittsburgh’s claim to be a new entertainment capital (see blog post here – the claim is not entirely without merit, as a lawyer might say) is that the incumbent local copyright / trademark academic gets a particular blend of interesting questions from the local media.

Last week, I explained the in’s and out’s of infringment of music copyright to the music critic of the Pittsburgh Post-Gazette (you read that right:  a small urban daily still has a music critic!) in connection with an allegation that Pittsburgh’s own hip hop megastar, Wiz Khalifa, appropriated “Black and Yellow” from a local unknown, who recorded “Pink and Yellow.” The problems that Wiz’s accuser faces are two-fold.  One, it appears to be unlikely that Wiz ever heard or otherwise had access to the plaintiff’s song.  Two, on my quick listen, the original elements of the songs don’t sound much like each other.  The core of the claim seems to be the similarity in the titles — “and Yellow” — which is a thin foundation for a successful copyright suit.

Today, the local angle is Andy Warhol, son of Pittsburgh.   The Velvet Underground has sued the Andy Warhol Foundation, which administers rights to the late artist’s works, for trademark infringement.  I haven’t seen the complaint, but I am told that VU is unhappy that the Foundation licensed the banana image that Warhol designed for the band’s 1967 debut, Velvet Underground and Nico, for use on i-related (that is, Apple iPad-related) products.

The IP issues there are a little bit tortuous.

The complaint apparently alleges that Warhol’s banana image was never “officially copyrighted.”  Presumably the reference is to the possibility that the work was distributed (as cover art) without an appropriate copyright notice.  I don’t have a copy of the album lying around, but if you do, you can check that.  If there was no notice on the cover, then there’s a good chance that the image itself went into the public domain — the copyright public domain, that is, right away.  Just about anything is possible in IP, but that (the absence of notice) strikes me as unlikely.  The other argument that VU has raised is that the image was in the public domain in the first place, apparently because Warhol based his design on a picture of an actual banana.  That argument is unlikely to fly, unless Warhol’s banana is actually identical to the source banana image.  If Warhol made any “creative” changes to the source image, then there’s little doubt that a valid copyright was possible.  Nevertheless, it’s possible that copyright is out of the picture.  If the image is protected by a valid copyright, then the Foundation has an argument under Dastar that arguable trademark claims should not interfere with the Foundation’s right to license the image.   That preemption argument would keep anyone from even getting to the points in the next paragraph.

As for the trademark claim, the suit apparently alleges that the banana image has become the very symbol of the VU.  That may be true, but that doesn’t quite establish the band’s trademark rights; the legal question is whether the band has used the mark commercially so that consumers have come to associate the mark as designating the source of products (or services) that the mark is attached to.  Let’s assume that the band can make *that* case.  Then the question is whether the Foundation infringed the mark — used it in commerce in a way that caused likely consumer confusion.  Usually, one would think that any arguable confusion would arise at the point that the mark is used on the i-products (an iPad cover, say), but it appears that the actual sellers of the products are not targeted.  I’m guessing that the producers don’t have assets worth pursuing.  The Foundation clearly does.  But the tie between signing the license and causing consumer confusion seems … pretty weak.  VU may be Waiting for the Man to provide trademark redress, but at the end of the day, I predict a case of There She Goes Again.

Updated Jan. 13 2012:  Here is a link to the Pittsburgh Post-Gazette story about the case. The story doesn’t get the issue right; the question is not whether the public associates the banana image with VU or with Warhol.  The question is whether the defendant’s use of the mark (assuming that it is a mark), in connection with goods or services, causes a likelihood of confusion in the minds of consumers.  I’ve now had a chance to read the Complaint.  The key allegation reads this way: “The use of the Mark on goods purportedly licensed by defendant will likely cause, and continue to cause, confusion, mistake or deception as to the source or affiliation of such third party goods.”  If that’s the crux of the case, then I don’t think that the Complaint alleges facts sufficient to meet the statutory definition.  The Warhol Foundation has a decent chance of getting the trademark claims dismissed.

The iPad / iPhone cases themselves are produced by Incase, as part of a Warhol collection.

Brooks goes on to speculate about the basis for that distrust: “Why don’t Americans trust their government? It’s not because they dislike individual programs like Medicare. It’s more likely because they think the whole system is rigged. Or to put it in the economists’ language, they believe the government has been captured by rent-seekers.”

This all sounds very familiar. It’s essentially the basis of the current critique of copyright law: that Congress has become beholden to a few stakeholders, and as a result modern copyright law has become unmoored from any legitimate purpose and now simply apportions rents to favored dinosaur industries.

But even that description of the situation is not dark enough. The pessimism, in copyright as well as politics generally, extends to the judicial branch as well. The Supreme Court, along with conservatives generally, have essentially given up on the courts and lawsuits as an instrument for civil justice. I think this is what explains the sharp turn in recent years away from discovery as the fire in which the truth proves its mettle, away from class actions, toward summary judgement, away from jury control over punitive damages, away from lawsuits generally and toward arbitration at every opportunity. Think of the rhetoric in favor of “tort reform” — limiting tort lawsuits and especially placing damage caps on actions for, e.g., grievous injuries caused by negligence. The very idea of letting negligence determinations go to the jury — once the core function of juries — strikes many as intolerable. Tort lawsuits are said to be out of control, with liability highly unpredictable, and unreasonable, eye-popping damage awards that create a chilling effect that acts as a drag on innovation, supported only by a highly influential lobby that controls the relevant legislatures. Only the lawyers win. There’s considerable skepticism in the tort reform rhetoric about the plaintiffs, too — who are these complainers? Why can’t they just suck up the trivial misfortunes that come their way?

Concerns about copyright lawsuits are similar, which is a bit surprising, since most copyright critics are probably politically liberal. The law is said to be hopelessly nebulous, plaintiffs are out of control, the potential damages are huge, and even the faintest threat of a suit chills innovation and drags down individuals and businesses. There is no longer faith that judges and juries will sort the good cases from the bad at a reasonable price. And even if they could, the plaintiffs are looked at askance, as not really suffering an injury worth remedying at any non-trivial investment of time and resources.

Part of the common theme here is, I think, part of the long-term trend away from the common law in American jurisprudence. Once, a hundred years ago, nearly all of the law in its everyday application was non-statutory — entirely accreted from judicial opinions over the centuries, without any basis in statutes. Even where there were statutes, judges felt free to add to them with doctrines of their own making — fair use and secondary liability in copyright law are well-known examples. Indeed, much of the doctrine we have in copyright law was built during this era — substantial similarity, the idea/expression distinction, merger and scenes a faire — which explains copyright’s different feel from patent law, which was statutorily codified in 1952 in a way that did not simply preserve the judicially developed doctrines that came before.

Copyright, like tort, is to a large extent a common law subject, and the zeitgeist is moving steadily away from courts as the locus of law’s development — or, really, any legitimate decision-making control over the law at all, beyond mere application. This trend is exemplified by the Supreme Court confirmation hearings in which nominees from both parties describe the enterprise of judging as more or less a routine application of existing law to facts. For whatever reason, nebulousness and uncertainty — in tort law, in litigation costs, in copyright — is becoming less tolerable, and the practice of legislatures of kicking key legal determinations to judges or juries is getting viewed with more and more suspicion and anger. I think that’s a long-term problem, however, as the idea of being able to regulate conduct through the operation of some sort of fully specified, easy-to-apply set of rules identified in advance is just as unachievable now as it was when H.L.A. Hart made fun of it in The Concept of Law in 1961.

[Cross-posted at the Marquette University Law Faculty Blog.]