LAS 's Techdirt Comments
Latest Comments (5)
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On the post: Why Should Webcasters Pay 25% Of Revenue To Promote Musicians?
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On the post: John McCain Settles Jackson Browne Lawsuit Over Song Use
LAS ( profile ), 23 Jul, 2009 @ 07:32amMc-Cain-Brown lawsuit
Incidently, to those who are convinced that the case is nothing more than a political grudge match, consider that in January 2009, the defendants' motion to dismiss was denied and the case was ordered to proceed, by Federal District Court Judge R. Gary Klausner. Judge Klausner was appointed to the federal bench in 2002 by George W. Bush.
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On the post: John McCain Settles Jackson Browne Lawsuit Over Song Use
LAS ( profile ), 23 Jul, 2009 @ 07:07amMc-Cain - Browne lawsuit
Mike wrote: "And someone in the McCain camp could have legally covered the song, paying the correct compulsory license as well -- and then potentially used that version in a commercial."
This is a complete misunderstanding of the law. First, the allegedly unauthorized use concerned both Browne's sound recording and Browne's musical composition. Thus, creating a cover version would not have protected the defendants. There would still be a claim for unauthorized use of the musical composition.
Second, nowhere in the law or jurisprudence is it even suggested that "fair use" includes use in a political campaign. This was no difficult question. Examples of activities that courts have regarded as fair use include: (a) quotation of excerpts in a review or criticism for purposes of illustration or comment; (b) quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; (c) use in a parody of some of the content of the work parodied; (d) summary of an address or article, with brief quotations, in a news report; (e) reproduction by a library of a portion of a work to replace part of a damaged copy; (f) reproduction by a teacher or student of a small part of a work to illustrate a lesson; (g) reproduction of a work in legislative or judicial proceedings or reports; (h) incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.
Saying that someone was engaging in "political speech" is not a "fair use" argument. The question is the PURPOSE to which the reproduction is put (see above). The defendants were not using the song for comment, criticism or education. They were using it to inspire people to vote for Sen. McCain by associating him with the sentiments and melody of the song. This is not a "fair use" purpose, nor a not-for-profit purpose (as defined under law), but closely analogous to a commercial purpose. Another factor strongly militating against a "fair use" finding is the fact that the use in question would clearly have hindered the copyright owner's licensing of the song for other purposes, e.g. for other political campaigns and even product marketing campaigns. The use thus interfered with Jackson's economic rights attached to his copyrights. (Note: the courts do not require a showing of ACTUAL interference based on lost opportunities, but only a theoretical one, as was recently noted in the injunction against the sequel to J.D. Salinger's Catcher In The Rye, in Salinger v. Colting.)
Whether or not Browne was motivated politically in filing suit, the legal argument has nothing to do with democrat or republican, liberal or conservative.
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On the post: How Copyright Can Be Viewed As Anti-Property
LAS ( profile ), 22 Jul, 2009 @ 06:43amRe: Re: Re: Re: Asset Forfeiture
It would appear that Amazon breached its contract with End Users:
"Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use."
There are no restrictions, no caveats that would appear to allow Amazon to remove content from your Kindle under the circumstances that arose in the distribution of 1984 and Animal Farm. -
On the post: How Copyright Can Be Viewed As Anti-Property
LAS ( profile ), 22 Jul, 2009 @ 06:39amRe: Define "property"
The FTC? Whose interests do you suppose it represents?
The problems with Amazon's actions cannot in any case be addressed via regulation. The law is biased toward copyright holders and law enforcement (as are most judges) and no discussions of policy and principles to address questions of privacy are even taking place at the legislative level. Moreover, when legislators do begin to address the questions,one cannot expect anything like a satisfactory resolution. After all, it is legislators who gave us all the excesses of the Patriot Act, not to mention the Sonny Bono Copyright Extension Act and the DMCA.
Radio promotes Record Sales? Think Again.
The notion that radio promotes record sales is worth examining. In "Don't Play It Again Sam: Radio Play, Record Sales and Property Rights," Stan J. Liebowitz (School of Management, University of Texas at Dallas) found that the assumption is unjustified, and that overall radio listening is a substitute for the purchase of sound recordings. Prior to the advent of digital communications, there well may have been an important promotional function, since radio was one of the only places you heard new music. But today the vast majority of music played on terrestrial radio is over 2 years old. (The Future of Music Coalition study, "Same Old Song: An Analysis of Radio Playlists in a Post-FCC Consent Decree Word," found that "more than 50 percent of the spins ... were of songs more than FIVE years old.") Thus, terrestrial radio stations are not "promoting" new records. They're attracting listeners and earning advertising dollars by playing songs and artists that stand the test of time.
The second issue to consider is the claim that music publishers stand in a different position from sound recording owners and recording artists whose performances are embodied on sound recordings vis a vis radio play. If radio promotes record sales, publishers and songwriters also benefit, because they earn mechanical royalties on every record sold, just like recording artists do (except that publishers are not subject to recoupment of advances and recording costs as are recording artists.) So the argument doesn't hold: what's good for the publishers should be good for record companies and artists.