The DMCA reform battle continues…
The DMCA was enacted in 1998, and was forged during the formative years of the internet. In the current atmosphere, it simply isn’t doing enough to prevent piracy, and often encourages it. Just moments after infringing content is taken down from a place like Google results, the exact same content is commonly re-uploaded.
That forces content owners to constantly issue takedowns, often in a fruitless battle for control. Over the years there have been several ongoing battles against DMCA exploitation, and the latest comes in the form of an open letter to congress from over 180 music artists.
The open letter reads…
”DEAR CONGRESS: THE DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) IS BROKEN AND NO LONGER WORKS FOR CREATORS
As songwriters and artists who are a vital contributing force to the U.S. and to American exports around the world, we are writing to express our concern about the ability of the next generation of creators to earn a living. The existing laws threaten the continued viability of songwriters and recording artists to survive from the creation of music. Aspiring creators shouldn’t have to decide between making music and making a living. Please protect them.
One of the biggest problems confronting songwriters and recording artists today is the Digital Millennium Copyright Act. This law was written and passed in an era that is technologically out-of-date compared to the era in which we live. It has allowed major tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smartphone, while songwriters’ and artists’ earnings continue to diminish. Music consumption has skyrocketed, but the monies earned by individual writers and artists for that consumption has plummeted.
The DMCA simply doesn’t work. It’s impossible for tens of thousands of individual songwriters and artists to muster the resources necessary to comply with its application. The tech companies who benefit from the DMCA today were not the intended protectorate when it was signed into law nearly two decades ago. We ask you to enact sensible reform that balances the interests of creators with the interests of the companies who exploit music for their financial enrichment. It’s only then that consumers will truly benefit.”
This followed a similar call for reform that happened back in April, where 400 artists, songwriters, managers, and music organisations sent a letter to the US Copyright office demanding reforms to the DMCA. Beyond this, several others have spoken out via the US government’s public consultation regarding DMCA safe harbor provisions.
Online, Fight For The Future and a popular YouTube channel, ChannelAwesome, have also started a campaign against DMCA abuse.
The battle against DMCA exploitation has been going on for some time, though the mass of complaints have done very little to combat this problem. That said, the US copyright Office is paying attention to this topic, with at least two roundtables discussing the DMCA safe harbors recently concluded. The outcomes of these discussions are still unknown.
Clearly there is a fundamental flaw in the current system. The number of DMCA notices Google has received in the past two years has exploded exponentially. But, only time will tell if new measures will be enforced to better deal with this growing issue.
(Image by Jakub T. Jankiewicz, Creative Commons, Attribution-ShareAlike 2.0 Generic, cc by-sa 2.0)
“The Elements of Copyright Infringement: ‘To prove infringement, a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of plaintiff’s. ‘Actual copying’ which is used as a term of art to mean that ‘the defendant, in creating his work, used the plaintiff’s material as a model, template, or even inspiration may be shown by direct evidence, which rarely is available, or by proof of access and probative similarities (as distinguished from ‘substantial similarity’) between the two works.” (Citations omitted.) Mannion v. Coors Brewing Co., F. Supp. 2d 444 (S.D.N.Y 2005).
It appears in the two articles and attached links identified in my previous comment that the music publishers, the record labels, as well as the RIAA are advocating the position that a musical composition, and a sound recording are equal in status, at least, pursuant to either federal or state copyright law. However, the Constitution of the United States states, and the Supreme Court of the United States teaches otherwise.
Article I, § 8, cl. 8, of the Constitution grants Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Is a music publisher, or a record label, an author or inventor within the meaning of Article I, § 8, cl. 8, of the Constitution? I aver that they are not. If not, what does that say about the power of Congress to grant a monopoly to the music publisher, or the record label?
The Supreme Court of the United States in Baker v. Selden, 101 U.S. 99 (1880), explained in answering the question as to “whether the exclusive property in a system of book-keeping can be claimed, under the law or copyright, by means of a book in which that system is explained,” as follows, in part:
“It cannot be pretended, and indeed it is not seriously urged, that the ruled lines of the complainant’s account-book can be claimed under any special class of objects, other than books, named in the law of copyright existing in 1859. The law then in force was that of 1831, and specified only books, maps, charts, musical compositions, prints and engravings. An account-book, consisting of ruled lines and blank columns, cannot be called by any of these names unless by that of a book.
There is no doubt that a work on the subject of book-keeping, [*102] though only explanatory of well-known systems, may be the subject of copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems, or of an entirely new system; and, considered as a book, as the work of an author, conveying information on the subject of book-keeping, and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book [e.g., musical composition], as such, and the art which it is intended to illustrate [e.g., music]. The mere statement of the proposition is so evident, that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of book-keeping. A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty, or want of novelty, of its subject-matter. The novelty of the art or thing described or explained has nothing to do with the validity of copyright. To give to the author of the book [e.g., musical composition] an exclusive property in the art [e.g., music] described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government.
The difference between the two things, letters-patent and copyright, may be illustrated by reference to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the [*103] public. If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book. So of all other inventions or discoveries.
The copyright of a book on perspective, no matter how many drawings and illustrations it may contain, gives no exclusive right to the modes of drawings described, though they may never have been known or used before. By publishing the book, without getting a patent for the art, the latter is given to the public. The fact that the art described in the book by illustrations of lines and figures which are reproduced in practice in the application of the art, makes no difference. Those illustrations are the mere language employed by the author to convey his ideas more clearly. Had he used words of description instead of diagrams (which merely stand in the place of words), there could not be the slightest doubt that others, applying the art to practical use, might lawfully draw the lines and diagrams which were in the authors mind, and which he thus described by words in his book.
The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.
Of course, these observations are not intended to apply to ornamental designs, or pictorial illustrations addressed to the taste [e.g., sound recordings]. Of these it may be said, that their form is their essence, [*104] and their object, the production of pleasure in their contemplation. This is their final end. They are as much the product of genius and the result of composition, as are the lines of the poet or the historian’s period. On the other hand, the teachings of science and the rules and methods of useful art have their final end in application and use; and this application and use are what the public derive from the publication of a book which teaches them. But as embodied and taught in a literary composition or book, their essence consists only in their statement. This alone is what is secured by the copyright. The use by another of the same methods of statement, whether in words or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of the copyright.
Recurring to the case before us, we observe that Charles Sheldon, by his books, explained and described a peculiar system of book-keeping, and illustrated his method by means of ruled lines and blank columns, with proper headings on a page, or on successive pages. Now, whilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practise and use the art itself which he has described and illustrated therein. The use of the art is a totally different thing from a publication of the book explaining it. The copyright of a book on book-keeping cannot secure the exclusive right to make, sell and use account-books prepared upon the plan set forth in such book. Whether the art might or might not have been patented, is a question which is not before us. It was not patented, and is open and free to the use of the public. And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.
The plausibility of the claim put forward by the claimant in this case arises from a confusion of ideas produced by the peculiar nature of the art described in the books which have been made the subject of copyright. In describing the art, the illustrations and diagrams employed happen to correspond more closely than usual with the actual work performed by the operator who uses the art. Those illustrations and diagrams consist of ruled lines and headings of account; and [*105] it is similar ruled lines and headings which, in the application of the art, the book-keeper makes with his pen, or the stationer with his press; whilst in most other cases the diagrams and illustrations can only be represented in concrete forms of wood, metal, stone, or some other physical embodiment. But the principle is the same in all. The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.”
It is noteworthy that a publication for purposes of the statute has been identified by the Supreme Court of the United States as follows: “Sales (publication in accordance with the statute)”: Mazer v. Stein, 347 U.S. 201 (1953).
Most people, if not all know, that, for example, numerous musical compositions and sound recordings have not been patented, but have been sold (i.e., published in accordance with the statute). Therefore, as explained by the Supreme Court of the United States, absent a patent, copyright only “secures to him the exclusive right of printing and publishing his book.”
[Part I of III]
You do realize that you have been spammed, although I’m sure the author will proclaim his “free Speech” rights.
What we are seeing here is a ramping up of opposition most likely underwritten by corporations making billions off the backs of creators, by anonymous posters.
Gee what a surprise.
http://www.takedownstaydown.org
Firstly, as it appears that you are suggesting that I am employed by some otherwise unidentified corporation “making billions off the backs of creators,” I assure you and others that I am not. In fact, I have been unemployed for approximately two years, hence, the free time to self-educate myself on these issues. My first intention was to simply ignore your comment, and suggestion that I am employed by some otherwise unidentified corporations “making billions off the backs of creators,” but I reasoned that it was necessary to do so in order to offset any prejudice that may arise due to the libelous statements contained in your comment. As for the “corporations making billions,” I am sure that they are capable of defending themselves if necessary. That being said, I do note the hypocrisy of your comment, in that you too, have posted anonymously. I would hope that the staff at DMN as well as the DMN readership will take that into consideration before forming a bad opinion about me based on your comment. Though I have wasted valuable time responding to your comment, perhaps, you would be kind enough to indicate whether or not you are employed within the music industry as well as the name of your employer. Thanking you in advance for your consideration in this regard.
Actually, jut for future reference, his postings are NOT anonymous (but mine are).
http://fareplay.org/
I wonder how the two cases cited above would affect the outcome of the proceedings in the Led Zeppelin: Stairway to Heaven (released in 1971) copyright infringement trial, in light of the fact that the court would only consider the sheet music?
On June 15, 2016, it was reported by Ashley Cullins via The Hollywood Reporter that “only the deposit copy of the sheet music that was filed with the U.S Copyright Office is protected [i.e., not patented].” Though pre-1972 sound recordings have been, and are, the subject of ongoing state lawsuits, it has been averred that pre-1972 sound recordings are protected solely by state copyright law, but that notion seems nonsensical in view of the report quoted above. The intriguing question however is whether or not the pre-1972 sound recordings are also protected by federal law, e.g., the Constitution of the United States, and decisions of the Supreme Court of the United States.
“He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book. So of all other inventions or discoveries.” Baker v. Selden, id.
As it is reasonably clear that an author who publishes and sells, but does not patent, his musical composition, does not secure exclusive rights to the same, it now makes good sense to direct attention to the sound recording. If the author of the musical composition is only entitled by copyright to the exclusive right of printing and publishing his musical composition (there are numerous examples of sheet music available for sale, and being sold), why would the public be required to license the use of that musical composition for purposes of, for example, recording the music if, for example, the music composition had been purchased? A sound recording is not a duplicate copy of the musical composition. A sound recording “is a totally different thing from a publication of the book explaining it,” in other words, a sound recording is a totally different thing from a publication of the musical composition explaining it.
I aver that this licensing scheme is an unconstitutional monopoly of the ideas contained in those musical compositions.
The anticipated first response would be that the copyright act, and the copyright holders, demand it. But what does the Constitution of the United States demand, and what do the decisions of the Supreme Court of the United States teach? Though the copyright act grants what is essentially an unconstitutional monopoly to both the publishers, and the record companies regarding musical compositions and sound recordings (yes, I am aware of the Copyright Royalty Board licensing scheme strives to offset the monopolistic imbalance, the antitrust concern, however, DOJ consent decrees only apply to BMI and ASCAP catalogues, but does it offset that imbalance in the case of GMR and SESAC? Or are GMR and SESAC, outside of that oversight?) I assert that the copyright act is repugnant to the Constitution of the United States because, among other things, it permits an anticompetitive practice regarding, for example, those musical compositions and sound recordings.
Indeed, the major labels, for example, not only consist of a publishing arm, but also a recording/distribution arm. One such corporation consists of UMPG, as well as UMG. So utilizing that example, can it really be said with regard to that particular corporation that the publisher is not receiving its so-called “fair share.” It licenses its unpatented musical compositions, on the one hand, to its record label on the other. The record labels recording artists are most likely unaware, and were most likely unaware when they signed their contracts (unless, of course, their legal representation “effectively” explained this to the recording artists before they signed those contracts), that they could have independently recorded those musical compositions themselves by simply purchasing the musical composition explaining it. See, Coleridge, Harold: Music Business Journal: The Drama of Artist Payments. Berklee College of Music, June 2016.
Measuring a music industry sound recording against the constitutional requirement of Article I, § 8, cl. 8, of the Constitution, what useful purpose does a musical industry sound recording have? Though a musical composition has the potential to teach a music student how to play various musical instruments, among other things, and therefore “the rules and methods of useful art have their final end in application and use; and this application and use are what the public derive from the publication of a book which teaches them.” By contrast, what does a music industry sound recording recorded by a record label signed recording artist teach? That Friday Night is a great night to party? That a recording artist’s heart was broken because a relationship ended? That I like big butts, I can’t deny? There’s a tear in my beer? The stories contained in those sound recordings are, in essence, personal stories either real or imagined.
Generally speaking, those sound recordings are “addressed to the taste,” not only by those who recorded them, but also by those that produced them. “Of these it may be said, that their form is their essence, and their object, the production of pleasure in their contemplation. This is their final end.” Baker v. Selden, id.
The idea (the musical composition), and the expression (the sound recording) merged – accordingly, they are not copyright protected, they are but facts -“This is their final end.” And even if I am wrong in that analysis, which is possible as I am neither a lawyer, nor do I purport to be, surely, the versions which are not duplicates of those musical compositions or sound recordings, do not violate the copyright act in a form which conforms with the strictures of the Constitution of the United States, and decisions of the Supreme Court of the United States. If these analyses are correct, and, in particular, that the merger doctrine applies to music industry sound recordings, what difference would there be between a pre-1972 sound recording, and a post-1972 sound recording as to the merger doctrine? Are all music industry musical compositions and sound recordings actually in the public domain?
The merger doctrine in simple terms basically states that when an idea can only be expressed in one or a limited number of ways, the idea has merged with the expression.
The Congress, and others, must have known of the merger doctrine when they added “sound recordings” to the list of copyright protected works. The Congress, and others, must also have known what the Constitution of the United States required before they added “sound recordings” to the list of copyright protected works, yet, Congress deliberately included “sound recordings” in the list of copyright protected works even though those works did not comply with the high standards set out in the Constitution of the United States. What did including “sound recordings” in the list of copyright protected works teach? I aver that what was taught is that if enough money is spent lobbying Congress (the music industry incessantly lobbied Congress for nearly 10 years or more, before an agreement was struck prior to executing the 1976 copyright act in particular) and, that the Congress will close their eyes to the rights of the public, and the strictures of the Constitution of the United States, and the decisions of the Supreme Court of the United States.
[Part II of III]
“That there was a publication of the contents of the book in question, and of the entire contents, is beyond dispute. It follows from this that defendant might have republished in another magazine these same numbers as they originally appeared in the Atlantic Monthly. He might also, before the copyright was obtained, have published them together, paged them continuously, and bound them in a volume. Indeed, the learned counsel for the plaintiff admits that the defendant had the right to make copies of these several parts, and to sell them separately or collectively; but insists that he had no right to combine them in a single volume. The distinction between publishing these parts collectively and publishing them in a single volume appears to be somewhat shadowy; but assuming that he had no such right, it must be because the copyright protected the author, not against the republishing of his intellectual productions or “the order of his words,” but the against the assembling of such productions in a single volume. The argument leads to the conclusion that the whole is greater than the sum of all the parts, a principle inadmissible in logic as well as in mathematics. If the several parts had been once dedicated to the public, and the monopoly of the [*89] author thus abandoned, we do not see how it could be reclaimed by collecting such parts together in the form of a book, unless we are to assume that the copyright act covers the process of aggregation as well as that of intellectual production. The contrary is the fact.
If the patent law furnishes any analogy in this particular, and we see no reason why it may not, then there is nothing better settled than that a mere aggregation of familiar elements, producing no new result, is not a patentable combination. (Citations omitted.) But if there were anything more than mechanical skill involved in collocation of the several parts of this work, it would be the exercise of inventive genius and the subject of a patent rather than a copyright. If an author permit his intellectual production to be published either serially or collectively, his right to a copyright is lost as effectually as the right of an inventor to a patent upon an invention which he deliberately abandons to the public and this, too, irrespective of his actual intention not to make such abandonment. It is the intellectual production of the author which the copyright protects and not the particular form which such production ultimately takes, and the word “book” as used in the statute is not to be understood in its technical sense of a bound volume, but any species of publication which the author selects to embody his literary product. We are quite unable to appreciate the distinction between the publication of a book and the publication of the contents of such book, whether such contents be published piecemeal or en bloc. (“en bloc” italicized in original.) Holmes v. Hurst, 174 U.S. 82 (1899); Cf. New York Times Co. v. Tasini, 533 U.S. 483 (2001).
Has Congress remedied the situation illustrated above, if not, what are the implications?
For example, how many single music industry sound recordings released by the record labels consist of previously copyrighted musical compositions that were not patented (the underlying work), and sound recordings (singles) have been subsequently compiled into albums, copyrighted, but not patented, and sold.
How many music industry sound recordings released by the record labels consist of previously copyrighted musical compositions that were not patented (the underlying work), and sound recordings (albums) have been subsequently copyrighted, but not patented, and sold.
What if a consumer did not purchase those singles or albums, in view of all of the above, but used them, have they actually committed a crime? What if a consumer did not purchase those singles or albums, but “dropped” them into a video thereby creating a music video and subsequently uploaded those music videos to a video streaming service such as, let’s say, YouTube? What if a consumer did purchase those singles or albums, and “dropped” them into a video thereby creating a music video and subsequently uploaded those music videos to a video streaming service such as, let’s say, YouTube? What if a consumer transformed the specific expression embodied in those singles and albums, on the one hand, after purchase, or on the other hand without purchase, but on either hand, without permission? Were their actions on one hand, illegal, but on the other hand, lawful? These are hard questions to answer no doubt, but the consequences for violating the copyright act are undoubtedly hard. What affect do all of these issues have on the validity of the DMCA take-down notices, must these issues first be contemplated, at the very least, before sending them?
In view of all of the above, among other things, if the music industry sound recordings were not created, or otherwise manufactured in accordance with the strictures of the Constitution of the United States, and the decisions of the Supreme Court of the United States, are the copyrights of the music industry valid? With regard to the strictures of the Constitution of the United States, and as it has been taught by the Supreme Court of the United States that, to paraphrase, if not quote, “an act done in violation of a statutory prohibition is void and confers no right on the wrongdoer,” I ask, is not the Constitution of the United States the greatest statute of them all, whether such be state legislation or federal statute?
To add insult to injury, if there be merit to any of issues and controversies raised above, Congress further imposed civil fines for potentially up to $150,000.00 per willful infringement and potential incarceration for up to five years and fines of up to $250,000.00 for each offence for willful infringement of those copyrights, as well as “derivative” works – but they were not patented. How many civil lawsuits and criminal prosecutions were brought against the public throughout the years in enforcement actions based on those copyrights. Yet, not only were the musical compositions not patented, neither were the sound recordings, but they were sold. Yet, that was neither enough, nor long enough (e.g., the Sonny Bono Act), the DMCA further provided take-down notice provisions which are utilized on a daily basis to bombard the public for what, using them, even in instances when they were purchased – but they were not patented. Those musical compositions, and sound recordings were sold, but not patented. Most, if not all complaints, legal actions and take-down notices were not instituted by the authors themselves, but rather, by publishers and record labels, their agents, or otherwise their trade organizations.
The Constitution of the United States does not permit the delegation of the author’s or the inventor’s rights (are they not inalienable rights, constitutional guarantees). If it did, it would have stated it, and I have yet to read such a provision (please feel free to point it out if one does exist, but please, please, do not refer me to a contract, or a work-for-hire agreement). I thought that the monopoly contemplated by the Constitution of the United States, specifically, Article I, § 8, cl. 8, of the Constitution which grants Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” was reserved to the authors and inventors, not the music publishers, record labels, or their trade organizations but, perhaps, I have misinterpreted the meaning as well as the true spirit of that Article, I think not.
On one hand, DMCA take-down notices are sent by publishers, or their agents, for using the unpatented printed sheet music and lyrics (the underlying works) embedded in the manufactured reproductions, e.g., sound recordings; on the other hand, record labels, or their agents, send DMCA take-down notices for the “unauthorized” use of manufactured reproductions, e.g., sound recordings (but what of the doctrine of merger, and the fact that those musical compositions and sound recordings are not patented), which, for example, are subsequently etched into vinyl and pressed into compact discs and sold.
What do the 25 billion plus (and this is an extremely conservative number) vinyl records and compact discs teach? If I have told you once, I have told you 25 billion plus times, pay me (and if you don’t like that, I’ll put it in 20 other formats, mechanically, or otherwise, and you’ll pay me again, and again, and again – but they were not patented). That, in my opinion, is the lesson being taught by the publishers, record labels and their trade organizations, all with the blessing of Congress, and others?
What’s next, take-down, stay-down?
In addition the issues and controversies I raised previously, there are undoubtedly other issues and controversies to be raised, but I will save those for another day. Suffice it to say, I am just warming-up. It goes deeper…
[Part III of III]
This is quite a bit to wade through. If I understand correctly, your primary assertion is that protections commonly associated with copyright actually require a patent… and that there are fundamental conflicts between the constitution, copyright law, and patent law that may render many peotections for sound recordings moot or invalid.
You’ve referenced several precedents that you use to justify your own personal opinions/conclusions. I’m not aware of any cases that even come close to supporting those secondary conclusions in the form of a clear precedent. A legal finding of that nature would certainly be headline news.
Seems like the only way for you to find out if you’re right is to make your case in a courtroom. Anything else would be conjecture… or inconclusive debate.
Let’s sharpen the point, just a bit.
Scholz Homes, Inc. v. Maddox, Jr. and Boland-Maloney Lumber Company, 379 F.2d 84 (6th Cir. C.A. 1967), an appeal from an order dismissing plaintiff-appellant’s complaint that defendants-appellees had infringed plaintiff-appellant’s copyrighted architectural plans and had engaged in unfair competition by marketing a house similar to that offered for sale by plaintiff-appellant, in pertinent part:
3. The district court granted the motions for summary judgment of Maddox and Boland-Maloney on two grounds: (1) under the authority of Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841 (1879), and cases following it, no claim for copyright infringement is stated if the alleged infringer uses copyrighted plans [e.g., musical compositions] to construct a building [e.g., record the music] rather than to communicate to others how the building might be constructed, and (2) no evidence had been adduced to indicate that either defendant had utilized the copyrighted plans [e.g., the musical compositions] in the construction of the Maddox house.
4. Baker v. Selden, supra, involved the alleged infringement of a copyrighted book which explained a novel system of book-keeping. The purported infringer had marketed ledger books based upon the system described in the copyrighted work. The court held that the ledgers did not infringe the explanatory text:
5. . . . To give to the author of the book [e.g., printed musical composition] an exclusive property right in the art [e.g., the music] described therein, when no examination of its novelty had ever been officially made, would be a surprise and a fraud upon the public. 101 U.S. at 102. . . . The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the books, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.
6. Muller v. Triborough Bridge Authority, 43 F. 2d Supp. 298 (S.D.N.Y. 1942) and De Silva Construction Corp. v. Herrald, 213 F. Supp. 184 (M.D. Fla. 1962), the two cases cited by the district court which applied Baker to architectural plans, involved no allegations that copyrighted plans [e.g., printed musical compositions] had been infringed by making additional sets of plans. Instead, these two cases considered and rejected the contention that copyrighted plans [e.g., printed musical compositions] were infringed merely by constructing buildings [e.g., recording the music] according to those plans. It might therefore be argued that the instant situation presents a stronger case for infringement than either of the earlier architectural cases, since Scholz alleged not only that Maddox constructed a house [e.g., recorded the music] according to the Scholz Southern Shore plan [e.g., printed musical composition] but also made copies of that plan. Even if the holder of a copyright of architectural plans [e.g., printed musical compositions] cannot prevent others from building [e.g., recording the music] according to those plans, he might still retain the exclusive right to their [e.g., the printed musical compositions] duplication. Section 1 of the Copyright Statute gives the copyright holder the exclusive right to ‘print, reprint, publish, copy, and vend the copyrighted work.’ 17 U.S.C. 1.”
And, of course, for those of you who live in the 9th Circuit, specifically, “Cali,” firstly, stay out of the heat but I digress, there is Sid & Marty Krofft TV Productions Inc. v. McDonald’s Corporation, 562 F. 2d 1157 (9th Cir. C.A. 1977) (citing Mazer v. Stein, 347 U.S 210, 217-18 (1954) and Baker v. Selden, 101 U.S. 99, 102-3 (1880).
And it is noteworthy, that in New York Times Co. v. Tasini, 533 U.S. 483 (2001), footnote 4, states:
“Two Registers of Copyrights have observed that the 1976 revision of the Copyright Act represented ‘a break with the two-hundred-year-old tradition that has identified copyright more closely with the publisher than the author.’ Letter from M. Peters to Rep. McGovern, reprinted in 147 Cong. Rec. E182 (Feb. 14 2001) (hereinafter Peters Letter)(quoting Ringer, First Thoughts on the Copyright Act of 1976, 22 N.Y.S.L. Rev. 477, 490 (1977)). The intent to enhance the author’s position vis-à-vis the patron is also evident in the 1976 Act’s work-for-hire provisions. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 742-750 (1989); see also 17 U.S.C. § 203(a)(5) (inalienable authorial right to revoke a copyright transfer). Congress’ adjustment of the author/publisher balance is a permissible expression of the ‘economic philosophy behind the [Copyright Clause],’ i.e., ‘the conviction that encouragement of individual effort [motivated] by personal gain is the best way to advance public welfare.” Harper & Row, Publisher’s, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (quoting Mazer v. Stein, 347 U.S. 201, 219 (1954)).” (Italics omitted.)
As for Miss Perry and Miss Swift, do they not own record labels, or otherwise have an interest in a record label? As for the other petitioners, perhaps, a little investigative journalism may reveal further self-interest of the petitioners, and their ring-leaders?
Of, course, assuming that the copyrights are valid.
“As for Miss Perry and Miss Swift, do they not own record labels, or otherwise have an interest in a record label? As for the other petitioners, perhaps, a little investigative journalism may reveal further self-interest of the petitioners, and their ring-leaders?”
What is wrong with self-interest here?
The profiteering YouTube is certainly looking out for its self-interest; it is only right that the (often unwilling and /or unwitting) content providers look out for their own in response.
But what of the user generated content (UGC)?
An article posted on the Verge today captioned: “Taking the headphone jack off phones is user-hostile and stupid (link below),” when compared to the language set out in the Irving Azoff, et al., Letter to Congress may add some insight into the underlying reasons for that movement, and further clarity as to the underlying motives.
http://www.theverge.com/circuitbreaker/2016/6/21/11991302/iphone-no-headphone-jack-user-hostile-stupid
I simply ask, who is Apple Music’s poster child?
Particularly, the section “Digital audio means DRM audio” which elucidates, in part, as follows: “but you can bet the music industry is going to start cracking down on ‘unauthorized’ playback and recording devices anyways.”
The letter to Congress reveals the following: “It has allowed major tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smart phone, while songwriters’ and artists’ earnings continue to diminish.”
There is no need to rehash all of the names of parties in this particular post who are also included in that movement over and above the actual songwriters’ and artists’ as it is sufficient for present purposes to merely point out the publishers and record labels.
In this regard, the letter to Congress further notes that:
“We [you know who they are] ask you to enact sensible reform that balances the interests of creators [think songwriter/publisher and recording artist/record label contracts and work-for-hire] with the interests of the companies who exploit music for their financial enrichment. It’s only then that consumers will truly benefit.”
Now re-read the Verge article and the Letter to Congress and, in particular, the last sentence; what thought comes to mind?
As was previously suggested, “a little investigative journalism may reveal further self-interest of the petitioners, and their ring-leaders,” perhaps, a more comprehensive investigation may reveal that there is more to that letter, and movement than meets the eye.
An article posted on the Verge today captioned: “Taking the headphone jack off phones is user-hostile and stupid,” when compared to the language set out in the Irving Azoff, et al., Letter to Congress may add some insight into the underlying reasons for that movement, and further clarity as to the underlying motives.
I simply ask, who is Apple Music’s Chief Creative Officer?
I simply ask, who is Apple Music’s poster child?
Particularly, the section “Digital audio means DRM audio” which elucidates, in part, as follows: “but you can bet the music industry is going to start cracking down on ‘unauthorized’ playback and recording devices anyways.”
The music industry letter to Congress reveals the following: “It has allowed major tech companies to grow and generate huge profits by creating ease of use for consumers to carry almost every recorded song in history in their pocket via a smart phone, while songwriters’ and artists’ earnings continue to diminish.”
There is no need to rehash all of the names of parties in this particular post who are also included in that movement over and above the actual songwriters’ and artists’ as it is sufficient for present purposes to merely point out the publishers and record labels.
In this regard, the letter to Congress further notes that:
“We [you know who they are] ask you to enact sensible reform that balances the interests of creators [think songwriter/publisher, recording artist/record label contracts and work-for-hire] with the interests of the companies who exploit music for their financial enrichment. It’s only then that consumers will truly benefit.”
Now re-read the Verge article and the Letter to Congress and, in particular, the last sentence; what thought comes to mind?
As was previously suggested, “a little investigative journalism may reveal further self-interest of the petitioners, and their ring-leaders,” perhaps, a more comprehensive investigation may reveal that there is more to that letter, and movement than meets the eye.
More like overcooked. You try too hard. Your bias is showing. I was hoping your initial posts represented sincere, independent thought.
By themselves, the references you provided don’t prove the assertions you’re making. Adding more references doesn’t clarify or sharpen your points. In fact, if anything you’ve simply added confusion by contradicting yourself (are the copyrights valid or not??).
If you’re not interested in discussing HOW one could actually prove or disprove the correctness of the conclusions you’ve drawn.. perhaps you would be more interested in describing how you believe the system should be altered in order to more effectively balance the concerns of all stakeholders? Or how a transition to such a system could be achieved?
In order to effectively express my belief as to “how [I] believe the system should be altered in order to more effectively balance the concerns of the stakeholders,” it is necessary to first identify the stakeholders as well as identify what stake that holder actually holds.
This is not rocket science (perhaps, it is). The Supreme Court of the United States has made it patently clear that absent a patent, in the case of a music publisher, for example, though the copyright for the printed musical composition and lyrics (sheet music) may, perhaps, withstand constitutional scrutiny, the music publisher does not have an exclusive right to make, sell and use the art (the music and lyrics) prepared upon the plan (the ideas) set forth in an unpatented musical composition.
But the principle is the same in all. The printed description of the music and lyrics in a musical composition (sheet music), though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art (music and lyrics) itself. The object of one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.
Stated in the simplest of terms, what lawful right does a music publisher have to prohibit and license the application and use, e.g., the manufacture and sale of the ideas explained in those musical compositions? The short answer to that question, absolutely none – nada. Indeed, the Supreme Court of the United States has made it patently clear in Baker v. Selden, 101 U.S. 99 (1879), that:
“Now, whilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practice and use the art itself which he has described and illustrated therein. The use of the art is a totally different thing from a publication of the book explaining it. The copyright of a book on book-keeping cannot secure the exclusive right to make, sell and use account-books prepared upon the plan set forth in such book. Whether the art might or might not have been patented, is a question which is not before us. It was not patented, and is open and free to the use of the public. And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.”
If, for example, I were to purchase a copy of the copyrighted, but unpatented, printed musical composition and lyrics (sheet music)(but is that even required if the ideas are open and free to the use of the public), there is nothing that a publisher could lawfully do to prevent me from performing the music and lyrics (use), recording the music and lyrics (manufacturing) set out in that plan (sheet music) and thereafter sell, if I so desire, that recorded music to the world.
If a music publisher were to institute proceedings against me for doing so, it would be a very short battle indeed. In this regard, I am confident that all of the district courts in the United States are restrained by a decision of the Supreme Court of the United States. It would be a different matter if I were to copy the printed musical composition and lyrics (sheet music) “for the purpose of publication in other works explanatory of the art” and, perhaps, if I were to publish the printed composition and lyrics for the music and lyrics (sheet music) performed (use) and recorded (manufactured) in the recording studio “for the purpose of publication in other works explanatory of the art,” but there is no requirement to do so.
It follows that the music and lyrics (sheet music) performed (use) and recorded (manufactured) in the recording studio could simply be uploaded to an appropriate server and sold, if I so desire, and there is not a damn thing that a music publisher could do about it. There is no way, for example, that a music publisher could claim that they were unaware as the music publishers know that they do not have a patent for the musical composition and lyrics (sheet music), but merely a copyright.
Moreover, the law is always speaking, the Constitution of the United States, and the Supreme Court of the United States has put the public and others on notice that the printed description of the music and lyrics (sheet music) in a musical composition, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art (music and lyrics) itself. The object of one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent. The facts may be different, but the principle is the same. Absent a patent, the music publisher does not possess an exclusive right to the ideas (the musical composition and lyrics) explained in the sheet music.
Therefore, the question that begs to be asked, and answered is: What lawful right does a music publisher possess to prohibit and demand licensing fees from the public to use, manufacture and sell recorded music based on the ideas stated in those musical compositions and lyrics in the absence of a patent?
I adamantly aver that this prohibition and licensing scheme is an unconstitutional monopoly of the ideas contained in those unpatented musical compositions.
If, for example, I decide that I want to publicly perform the music and lyrics (use) that I recorded (manufactured) in the recording studio in a venue, I do not need a license from the music publisher to do so. Any attempt by the music publisher to restrain that live performance would be an unlawful act of the music publisher.
So, for example, and simply stated, let’s say I purchase a copy of the unpatented printed musical composition and lyrics (sheet music) from a music publisher, perform the musical composition and lyrics (use) in a recording studio, record the music (manufacture), upload that music to an appropriate service and sell the music, if I so desire, or not. Then I simply perform that music (use) at a venue of my choosing, sell merchandise such as t-shirts, posters, assorted trinkets. I could even seek out brand support, endorsements, film or live stream the performance and there is not a damn thing that a music publisher can lawfully do about it.
In view of the scenario set out above, why would I need to publish the printed musical composition and lyrics “for the purpose of publication in other works explanatory of the art,” for my music; short answer, absolutely none (but if I wanted to, I suppose I could negotiate a deal with the previous publisher for a share of the new work and thereafter publish the new musical composition and lyrics (sheet music) “for the purpose of publication . . . explanatory of the art,” but I would have to think about that a bit longer). The publisher made $2.50 (just a guess) for the printed musical composition and lyrics (sheet music), what more, if anything, could a publisher lawfully demand in the absence of a patent? Short answer, nothing (though I suppose that a music publisher could ask for a higher price for the printed sheet music, but as there are millions, if not billions of copies already sold, it would be quite awhile before that would happen, or at least for the sheet music that has already been sold).
If I do not make a copy of the printed musical composition and lyrics (sheet music) I purchased from the publisher (or otherwise through the secondary market) “for the purpose of publication in other works explanatory of the art,” and if I do not publish the sheet music and lyrics for the new music I recorded “for the purpose of publication in other works explanatory of the art,” how have I violated the copyright of the music publisher for the printed musical composition and lyrics (sheet music)? The short answer, I have not.
Moreover, as the printed musical composition and lyrics (sheet music) were published, but not patented, why burden myself with the expense of $2.50, I need not even purchase the printed musical composition and lyrics (if, for example, I could lawfully obtain the ideas from the secondary market, or let’s say, I borrowed a copy from a friend that he or she had preciously purchased either directly from the publisher, or otherwise through the secondary market; sharing is a use, is it not), as the ideas are “open and free to the use of the public.”
I am neither a lawyer, nor do I purport to be. I am not purporting to give legal advice in any way whatsoever, however, educate yourselves, and thereby formulate your own opinions, then bring those ideas to the attention of qualified legal counsel, or if you are fortunate enough to have access to a reputable law professor(s), discuss those opinions with that law professor – they may even advise you to make hay while the sun shines, I think the age-old adage goes.
I am extremely tired at the moment, so regarding the music industry sound recordings, I simply state the following: Merger doctrine, merger doctrine, merger doctrine.
As to the DMCA take-down notices, if I have even been reasonably clear, I think the music publishers and others already know the answer to that question, so I simply state the following: Damages, damages, damages.
As to how I think a transition to such a system could be achieved, I will simply state that a good start would be for the music publishers and the record labels to release all of the composers and songwriters as well as the recording artists from their contracts, and that the composers and songwriters as well as the recording artists stop doing work-for-hire projects, then and only then, do I think good faith discussions could begin.
Realistically, if my analyses are correct, what do the music publishers and especially the record labels have to lose?
Realistically speaking, if my analyses are correct, what affect will such have on the future sales or IPOs of, let’s say, VEVO and Spotify for example?
Though this may all seem like gloom and doom, in fact, I believe that this is the beginning of something beautiful . . . time will tell.
Your last post does help clarify your points. I consider them intriguing in an academic context. But, I think your post also implicitly points to how extreme such a remedy would be. If a court ever rules in the manner you’ve outlined, the disruption would be enormous. Publishers and labels aren’t going to begin terminating agreements in the manner you suggested unless there is legal certainty on these matters.
When that “fundamentally impractical” perspective is combined with the lengthy, convoluted wall of text you posted to explain it… it naturally creates suspicion within this community. I’m not going to defend rude behavior (including my own). But, I did want to make an effort to help you understand why it exists.
At times, there have been intentional efforts by commercial interests to spread misinformation on these topics with the purpose of preventing copyright holders from effectively lobbying for changes to restore a greater level of control over how their works are used. When simple questions are met with long, complex contradictory answers… my bullshit meter goes through the roof.
To be clear, I am not accusing you of intentionally spreading misinformation. I am just trying to help you understand why this would be a common concern/suspicion when reading your posts so that you can more accurately interpret some of the reactions you receive.
Most of the concerns implied in your critique result in some form of Atomization. Other less disruptive remedies exist for this (including restoring the need to register works). Have you considered any of those alternatives?
Also, to my knowledge.. its not possible to patent a musical composition in the United States. Is your understanding different?
“The DMCA simply doesn’t work.”
Not true — it works for YouTube.
“The DMCA simply doesn’t work.”
which is ironic since the industry made it.
but like everything else they are full of shit. hopefully they wont be around much longer.
The DMCA was “made” at a different time; technology and problems have evolved and devolved since then. The law must be updated to reflect the current scenario.
“The law must be updated to reflect the current scenario.”
And it will be! It was one hell of a party for Big Tech, but even Google knows it’s over.
Remember how only half a dozen artists (or less) had the guts to protest against Google and their thugs 10 years ago?
Today, we’re tens of thousands — and people listen.
I wonder how the law pertaining to the copyright/patent distinction, among other things, such as the merger doctrine would affect the $25,000,000.00 judgment (or, otherwise similar future litigation) that Cox Communications was ordered to pay to BMG Rights Management and its copyright enforcer Rightscorp; not sure at this time whether or not that judgment has been appealed.
dear artist please take your music off youtube.
nobody will miss it.
i don’t even use it for music. just hardware advice.
Many artists would love to…but it is not so easy to have your work removed in every infringing case, and even when it works, the same work is typically re-uploaded very quickly. It’s impossible to keep up.
“dear artist please take your music off youtube”
And how the f*ck do we do that?
so taylor swift can have a third mansion.
lol
Because all those hundreds of thousands of artists out there that YouTube rips off are Taylor Swift.
Google is toast in EU:
http://www.billboard.com/articles/business/7415489/european-lawmakers-urge-tightening-of-safe-harbor-exemptions?utm_source=twitter