Posted by David Post:
The Death of Copyright, Item #241
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1235918170
There are many reasons why copyright law as we know it is
fundamentally ill-suited for the networked age, and why it will (if we
are fortunate, and smart) look very, very different 10 or 20 years
from now. I've commented on this many times in the past here on the VC
(and will keep doing so, unless and until Eugene tells me to shut up).
Here's a nice recent illustration of one of copyright's fundamental
problems.
Over the past few weeks, there has been a proliferation of videos on
Youtube made using Microsoft's recently-released [1]"Songsmith"
software. Songsmith lets you input music into your computer -- by
singing and/or playing your guitar into your mic, or feeding in a
pre-recorded track -- and then the software "analyzes" the music and
adds backing tracks matching the "genre" of the music you've fed in.
It didn't take long for people to take control of the software's
capabilities and to begin feeding in classic songs and re-working
them, with sometimes spectacular results:
[2]Sgt. Pepper's Lonely Hearts Club Band
[3]I Heard it Through the Grapevine
Both authored by 'azz10,' who, by the looks of things, seems to be
pretty gifted at this sort of thing.
That there is copyright infringement here is almost beyond dispute.
Let me put it this way: as a copyright lawyer myself, I would not want
to be defending azz10's side in an infringement suit. That, alone, is
troubling -- copyright is supposed to promote creativity, and here's a
veritable explosion of creativity -- hundreds of thousands of these
videos have been posted to date, some great, some awful, many
interesting and expressive -- and copyright (and only copyright) is
standing squarely in the way.
But my point here is different. One of the things that makes copyright
so ill-suited to the networked age is that it doesn't scale. Here's
what I mean. If azz10 walked into my office and said: "I'd like to
hire you to clear copyright on this work I have created; find out who
I have to pay royalties to, and get me the rights," I would not be
able to complete that task (and no copyright lawyer worth his/her salt
could complete that task) in less than 4 or 5 hours of work, and
possibly a good deal more. Take the "I Heard it Through the Grapevine"
video. Some of the questions I will have to answer in order to do this
work competently:
Who owns the rights to the "audiovisual work" portraying the Marvin
Gaye performance?
Who owns the rights to the underlying "sound recording"?
Who owns the rights to the underlying "musical work" (i.e., the
song itself)> (under copyright law, this is a separate copyrighted
work, and can be owned separately from either of the foregoing)
What kind of royalty do I need to pay, i.e. am I paying a royalty
for "reproducing" these works, or for "performing" them? Or
"publicly displaying" them? Or "transmitting them by digital audio
transmission"? Each of these is plausible, none is certain, and it
makes an enormous difference in the amount of the royalty and the
identity of the persons to whom the royalty is owed (i.e., if it's
a "performance," different copyrights are involved than if it's
not).
What about Microsoft? Do I owe them a royalty, inasmuch as I've
used some of their "genre" tracks in my video?
Some of these involve chasing down facts that may be hard to uncover
(like who owns the various copyrights). Others involve difficult
questions of law. I'll need to examine some documents (copyright
assignments, possibly; the language of the Songsmith license,
certainly; things like that). I've done this sort of work, for paying
clients; it's not impossible, but it does take some time. The point:
it takes orders of magnitude more time to do the copyright clearances
than it does to create the work. Think about it -- it could well have
taken azz10 15 minutes to synch up these tracks on Songsmith -- and
easily 10 or 100 times more work would be required to do so in
compliance with copyright law.
That is an absurd state of affairs. Multiply the waste involved by
100,000 for each of the Songsmith videos posted on Youtube. And then
mulitply that by 1,000,000, for each of the Songsmith videos created
and not posted on Youtube.
That's what I mean by a failure to scale. This is, remember, all
supposed to be about encouraging creative work. In the old days, with
a (much) smaller number of relevant events needing copyright
protection, the ratio of creative work to law-compliance work may have
been reasonable. But it is reasonable no longer.
How we figure out how to change all this is another story. [I try to
tell that one [4]in my book]
References
1. http://en.wikipedia.org/wiki/Songsmith
2. http://www.youtube.com/watch?v=9BZk6aZp9xE
3. http://www.youtube.com/watch?v=XyYfTips5yc
4.
http://www.amazon.com/gp/product/0195342895?ie=UTF8&tag=inseaofjefsmo-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0195342895
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