Discussion: “The Foolish War Against Song-Lyric Websites”

Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as Rapgenius.com.  He joins issue in particular with David Lowery and Mr. Lowery’s recent Undesirable Lyric Website List which attempts to identify song lyric websites that appear to be unlicensed — a list that has prompted legal action against some of these sites.  The title of Professor Cummings’ article — “The Foolish War Against Song Lyrics Websites” — gives some sense of his thesis.

I have written criticizing the move to regulate music copyright in an increasingly granular way and the tendency to claim copyright infringement for actions that prior generations took as a normal part of creativity.  I have argued both in my book The Public Domain and in a comic book on fair use that the introduction of  a “borrowing = wrong = a need for licensing” culture may well a.) fundamentally misstate the law and b.)  be bad for  creativity, in music and elsewhere.  I have also argued that we should not have a vision of perpetually expanding copyright that aims for total control over every use of copyrighted work — that that is foreign  to the Anglo-American intellectual property tradition and potentially dangerous to the architecture of the open internet.

So when Professor Cummings criticizes the attempt to force song lyric websites to pay licensing fees to the copyright owners of the lyrics of those songs, I should wholeheartedly agree with him.  Right?  Actually, I find the issue much more complex.   As I see it, Professor Cummings has two main arguments.  [The article is short -- so please read it yourselves and do not rely on my summary.]  The first is based on the difficulty or impossibility of enforcing rights online (which of course is not a normative position, just a practical one) and the second based on the idea that intellectual property rights are limited, not absolute, and their constant expansion is unwise.

On the first, I find this argument incomplete.

Lots of laws are hard to enforce.  For many  of them — for example, those that criminalize very low level speeding or private consensual adult sexual activity that violates norms against certain types of sexual desire — we think that the difficulty of enforcement is either a really good thing, or no big deal.  For others, such as laws against human trafficking, or random marine spot pollution that is hard to trace to an individual source — we think that the difficulty of enforcement is tragic; we’d love full enforcement if we could.  I am not saying any of these is morally equivalent to quoting lyrics..  Duh.  I am saying that the assertion that  the law is hard to enforce tells us little about whether that is a good or a bad thing.  And the difficulty of enforcement, by definition, is not a very good argument against the attempt to… well, enforce the law:  the very thing Mr. Lowery is attempting to galvanize copyright holders to do.   In fact, if it is so hard to enforce, why worry about his attempts?   Difficulty of enforcement can be part of a normative argument.  At the end of Prohibition, the fact that enforcement was so hard because people did not find the law to be legitimate provided a good argument for repeal.  And one could argue such a case here.  But enforcement difficulties alone don’t provide a normative ground to stand on.

On the second argument:  Intellectual property rights are limited and not absolute and we should not constantly be expanding them towards total control.  +1 on that argument.  But to be fair to Mr. Lowery, the right he is asking be enforced — namely that over the unlicensed reproduction of lyrics — is not  an expansion of copyright.  In fact, the right to control reproduction of lyrics is probably the oldest right in the music copyright bundle.  There was a time when songwriters had neither the right to control public performances, nor mechanical reproductions, nor performances over the radio.  In each case, the law was expanded to cover those uses.  But ever since copyright has covered songs, composers have had the right to control the copying (at least the commercial copying) of their lyrics.  That is a point worth emphasizing.

..
One can argue whether exercising that control is wise on the part of the artist, though that is surely the artist’s decision to make, provided it is within his or her exclusive rights under copyright.  Or one could argue whether, if accompanied by commentary and critique — as in Rapgenius — the reproduction of lyrics is a fair use under section 107 of the copyright act.   (In which case it would not be within their exclusive rights.)  To be clear, I think some quotations of lyrics online  definitely qualify as a fair use. What about an entire, relatively complete library of song lyrics, reproduced in their entirety — particularly one with commercial goals and VC funding?  There the fair use argument is harder to make.   But leaving aside the fair use point, it is not an expansion of copyright for one to attempt to cover that kind of activity.     Nor does it seem unjust in the least for the song writer to ask for licensing fees for inclusion of lyrics in such a for profit enterprise.  A true, non commercial fan site, with episodic and fragmentary inclusion of lyrics, interspersed with commentary would be very different. In other words, it is fact specific.  And commercial sites that are truly transformative and provide limited access to snippets of material that would otherwise be inaccessible and in which the demand for up-front permission would destroy the index — think Google Books — can be fair uses.   Yet Google Books would not have been found a fair use if it gave you the entire copyrighted work.   Those who know more about lyrics sites can judge how many fall on each side of those lines.

Bottom line: one can be against the demand for commercial lyric reproduction sites to pay licensing fees to song writers.  But one cannot really portray that demand as an expansion of copyright.  It is just an application of the oldest right in the composer’s bundle of rights.  One can be against the entire bundle, of course.  (I am very definitely not, but some are.)   Or one could say that attempts to regulate the internet to ensure full and perfect compliance with all rights will lead to unwise regulation of the technology in a way that will hurt all of us, creators and audiences alike.  (I would agree with that point.)   But on grounds of both law and policy, I think that more nuance is needed before we criticize the lyricist who wants to get paid from a large scale commercial site that is aiming to make money by reproducing lyrics in their entirety, that is, doing something that has been central to the rights of copyright holders for a long time.  That’s different, I think, than trying to stop non profit uses, amateur remixes or commercial borrowings that take a few bars of a jazz standard or a James Brown song, and build them into an entirely different song.  One can be for or against all of these, but one should not think they are the same.  And if, when I can’t remember the lyric from that song, or want to get someone to explain to me whether The Beat’s “Save it For Later” is really an homage to oral sex, or why Elvis Costello is worried about “Night Rallies,” my click — and the ads it loaded onto the slick, commercial, virus-free site where I found the words — if that click sent a fraction of a cent to The Beat or to Elvis Costello, as well as to the people who coded the website, why then I would think that was a pretty good result.

 

Saturday, January 4th, 2014 Uncategorized

From the Blog

  • So you’ve invented fantasy football, now what?

    We are posting excerpts from our new coursebook Intellectual Property: Law and the Information Society which will be published in two weeks.  It will of course be freely downloadable, and sold in paper for about $135 less than other casebooks.  (And yes, it will include  discussions  of whether one should ever use the term “intellectual property.” )  The book is full of practice examples..  This is one from Chapter One, on the theories behind intellectual property: “What if you came up with the idea of Fantasy Football?”  No legal knowledge necessary.  Why don’t you test your argumentative abilities…?

  • Free/Low Cost Intellectual Property Statutory Supplement

    Today, we are proud to announce the publication of our 2014 Intellectual Property  Statutory Supplement as a freely downloadable Open Course Book. Statutes Cover  It offers the full text of the Federal Trademark, Copyright and Patent statutes (including edits detailing the changes made by the America Invents Act.)  It also has a number of important international treaties and a  chart which compares the various types of Federal intellectual property rights — their constitutional basis, subject matter, length, exceptions and so on.You can see it here in print, or download it for free, here

  • Persnickety Snit

    This is the fourth in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  It is about lawyers and language. 

  • Macaulay on Copyright

    Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read.  In fact, the phrase “cite unseen” gains a new meaning.  That is a shame, because it is masterful.  (And funny.) One fascinating moment?  When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

    At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…  Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

    The legal change he thought would do that?  Extending copyright to the absurd length of life plus 50 years.  (It is now life plus 70).  Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

  • Mark Twain on the Need for Perpetual Copyright

    This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

    In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act.  Delicious.

  • Victor Hugo: Guardian of the Public Domain

    Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law.  (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course.  Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5  the price of most statutory supplements — also freely downloadable.)  More about that later.  While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers.  Today I was revisiting Victor Hugo.  Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

  • “We Need To Start Seeing Other Futures..”

    Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

  • Discussion: “The Foolish War Against Song-Lyric Websites”

    Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as Rapgenius.com.

  • The Top Ten List of a Conference Planner

    Academics (and others) arrange conferences.  Perfectly normal people are invited to those conferences to speak.  Most of them are just as charming as can be… but then there are the special ones.  This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere.  Hold your heads up high.  After this, purgatory should be a snap.

  • (EM)I Has A Dream

    EM(I) Has A DreamAugust 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

  • The Prosecution of Aaron: A Response to Orin Kerr

    Aaron Swartz committed suicide last week.  He was 26, a genius and my friend.  Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

  • The Hargreaves Review

    An Intellectual Property System for the Internet Age

    James Boyle

    In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright..  Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.”   Today the Review will be published. Its conclusion?  “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?  The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review.   (Full disclosure: I was on the Review’s panel of expert advisors.)

  • Keith Aoki — A Remembrance Book

    A slideshow and downloadable book remembering Keith in words and pictures.  You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon.  We tried to make it as beautiful as something Keith would create.  We failed. But we came close; have a look at how striking it is… all because of Keith’s art.

  • Now THAT is how you teach a class

  • RIP, Keith Aoki

    Our friend, colleague, co-author and brilliant artist and scholar Keith Aoki died yesterday in his house in Sacramento.  He was 55 years old.

  • The Future of the Constitution?

    The Brookings Institution has organized a volume on “The Future of the Constitution” edited by Jeff Rosen and Benjamin Wittes and featuring articles by me, Larry Lessig, Jonathan Zittrain, Tim Wu and many others.  How will our constitutional tradition deal with the challenges posed by new technologies?  The topics range from possible personhood claims by artificial intelligences, to the future of free speech and the Net, to neuroscience and criminal punishment.  The essays are freely available online. Details after the jump.

  • Presumed Guilty

    My new FT column is up. Shakespeare, copyright, Scott Turow and a shadowy group of law professors..  What could be more fun? Ungated version after the jump. 

  • Waiting for ‘Waiting for Godot’

    What Could Have Been Entering the Public Domain on January 1, 2011?
    read more

  • Fantasy & Reality in Intellectual Property Policy

    My new column for the FT is up.  It deals with the incredible weakness of the data on which our intellectual property policy proceeds.   Ungated version after the jump

  • CBC Radio Interview on the History of Copyright

    Nora Young and the folk at CBC’s Spark have done it again, with a really nicely presented episode that includes a feature on copyright.  Nora interviews me about the history of copyright…  in 5 minutes.

  • EFF Pioneer Award Video

    Is here. I appear at 3:25 or so.

  • EFF Party in San Francisco!

    On November 8th, Cory Doctorow, John Perry Barlow, and numerous other digital luminaries will be gathering at the Minna Gallery in San Francisco for the EFF’s Pioneer Awards Party.  Cory is going to be the MC and — when not featured on XKCD blogging from a ballon in a red cape and goggles…

  • Net Neutrality Debate

    Great hour long radio show on net neutrality from NPR’s The State of Things.  Me, the inimitable Paul Jones of iBiblio, and Ryan Radia of the Competitive Enterprise Institute.  Frank Stasio is just a great interviewer.  Listen to it here

  • Op Art Comic in todays SF Chronicle

    We have a centerfold Op Art comic on “Copyright’s Futures”  in today’s San Francisco Chronicle.  The comic is

  • Why I Miss Justice Blackmun…

    This isn’t a post about intellectual property or the networked society, so if your interests only run that far, cease reading here.  In the late 80′s and early 90′s refugees were attempting to escape what was, in a decidedly non metaphorical sense, a hellish situation in Haiti..

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