Copywronger and wronger

I’ve written here before about the modern excesses of copyright law. Today, I came across this interesting article in the Boston Globe– it appears that legal scholars have found interesting models for the protection of intellectual property that doesn’t involve the expensive and litigious system now used by record companies and film studios. Have a read and see how stand-up comedians, chef’s and magicians handle issues of creativity without the courts. Also included in the article is an interesting historical overview of the evolution of copyright law:

The question of what level of intellectual-property rights should be extended to creators has dogged America from the start. Even as prodigious an innovator as Thomas Jefferson was reluctant to protect ideas too stringently, maintaining as a point of principle that “ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man.” Yet Jefferson also realized that, in a world where original creations take time, money, and energy to produce but are easy to copy, creators need to be offered “incitements to ingenuity” if they are to keep contributing to the economic and creative health of the nation.
The Constitution was written to maintain this balance between private wealth and commonwealth, allowing Congress to grant to creators – authors, musicians, inventors, and so on – “exclusive Rights” to their creations “for limited Times.” This formulation, the author Lewis Hyde writes, “allows a market in cultural property but also puts an outer boundary on that market.”

For much of the country’s history, that boundary held relatively fast, and led the country through successive waves of innovation.

Yet in the information age, where ideas play a dominant role in the marketplace, the boundary has shifted markedly in favor of private interests. This is clearest to see in the case of copyrights – along with patents and trademarks, one of the three major classes of intellectual property. In 1790, copyright protection lasted a maximum of 28 years, after which the property reverted to the public domain, where anyone was free to make use of it. Between 1831 and 1909, the term was doubled to 56 years. Today, after successive extensions passed into law by Congress – most notably, the 1998 Copyright Term Extension Act, which tacked on 20 years – copyright protection lasts on average more than a century.

Why should we be worried about this? Perhaps because the maniacal greed of oligarchial mega-corporations controlling the mainstream media know no boundries? If you think I’m exaggerating, read this (from the Washington Post)!

Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry’s lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are “unauthorized copies” of copyrighted recordings.


Special thanks to Steve Layton at  Sequenza 21 for bringing this to my attention.

c. 2007 Kenneth Woods

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About the author

American conductor, composer and cellist Kenneth Woods is Principal Conductor of the English Symphony Orchestra, Artistic Director of the Colorado MahlerFest and cellist of the string trio Ensemble Epomeo. He records for the Avie, Somm, Nimbus, Signum, MSR and Toccata labels.

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7 comments on “Copywronger and wronger”

  1. composerbastard

    You miss a very important point in Copyright law. Its not the duration. The Copyright law was not meant to stop someone copying your work – whether to a derivative media or in derivative form. People always misunderstand its use. I encourage everyone to take a “Legal Aspects of the Music Industry Course” if they can.

    “…The most important of the rights of users is that of fair use. Yet fair use is the least specifically defined and least understood of users’ rights. The Copyright Act provides that certain kinds of uses of copyrighted works, called fair uses, are not an infringement of copyright, despite the fact that the use may involve copying, adapting, performing, or displaying the copyrighted work. If a particular type of an activity is a fair use, then the copyright owner of the work has no right to demand that the use first be authorized by the copyright owner or to demand the payment of a fee for engaging in that type of use. The Act lists four non-exclusive factors for courts to consider in determining whether any particular use is a fair use and thus not an infringement of copyright. (The four factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.) A court is required to examine these factors in adjudicating an assertion of infringement by the copyright owner on the one hand and the assertion of fair use by the alleged infringer on the other…”

  2. Kenneth Woods

    Hey CB-

    I couldn’t agree with you more about the importance of Fair Use. Clearly, the RIAA’s latest actions imply that they are moving toward an interpretation of the law where there is NO SUCH THING as Fair Use under any circumstances. More chillingly, the congress and courts are so beholden to lobbyists, that they are more willing than ever to support what is essentially a land grab of rights away from creators and listeners and hand those rights to distributors.

    More on this soon


  3. rootlesscosmo

    In the case reported in the WaPo article (RIAA v. Layton), the RIAA is asserting that the defendant, after ripping content from CDs to his computer, then put that content in a Kazaa shared folder. (If all he did was rip it to his computer, how would RIAA know about it?) Still, RIAA does claim in their brief that even the act of ripping is infringement, though they acknowledge they’re not seeking to prevent it, probably because there’s nothing they can do about it yet.

  4. Steve Layton

    It should be noted that in virtually all of these file-sharing cases, the RIAA has no proof that anyone other than themselves downloaded the files in question, as well as no proof other than the compuetr’s IP # that the person in question was the party involved. Actual illegal file-sharing may be going on, but the only thing they can prove, and so sue for, is that someone put files into a specific folder in their computer. This kind of evidence likely wouldn’t hold up too well in a criminal trial, which is why these are normally civil cases. I completely support copyright protection; but too much of what the RIAA and others are trying smacks of extortion, bullying, insinuation and witch hunts.

    Probably the best place to get an more full idea of the issues and events surrounding the RIAA’s tactics is Ray Beckerman’s blog:

  5. kac attac

    It seems to me that the Boston Globe article confuses plagiarism and piracy. They’re not the same thing. Plagiarists and near-plagiarists have been subject to public ridicule and shaming for most of recent Western musical history, although this was not always the case early on. The culinary analog to what the RIAA calls “piracy” isn’t copying someone’s recipe, but literally stealing the very food they prepared off the table. Such food thieves would indeed be unpopular, but as a society, we seem to sympathize with musical “pirates” a little bit more.

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