Saturday, October 10, 2015

Can We Improve our Copyright Regulations? Is our Current System Unconstitutional?

You just wrote a great American novel, say The Mermaid of Brooklyn: can you prevent the New Yorker or this blog from serializing it? You've got a great song on your website: can you keep Pandora or Spotify from streaming it?  Oh, and how will you be compensated?

The law as it stands says I can make "fair use" of a book, like quote limited portions in a review, but I can't reproduce it. Pandora and Spotify can't stream your song without your permission. The owner of a copyright has the exclusive right to reproduce, distribute, perform, display, license, and to prepare derivative works based on the copyrighted work. Subject to "fair use" I've got to come up with my own content for this blog.

Is the present copyright scheme the best we can do to protect and foster the arts?

At the greedy side of the monetized music industry, Metallica (back in 2000) may have thought the system worked for them when they sued Napster for not getting their share from the file sharing service. At the thoughtful side of the industry, David Byrne worries that the failure of streaming music services to meaningfully support new and talented artists will reduce the amount and level of art being produced ("The Internet will Suck All Creative Content out of the World").

Check out Kyle Alden's excellent website. He is a talented musician who has written many great songs, and recorded many CD's. But he makes no significant money from CD's sales or from music streaming. Can copyright law be modified in a way that would help nurture and sustain a market for talent away from the block-buster pop-music scene? What would such modifications look like?

David Byrne calculated that a five member band would need to generate 236,549,020 streams/year on Spotify in order to earn a minimum wage in Britain. My wife is a musician and has her own Pandora station.  Go listen now! The other day, after a year of streaming, she received a check for $3.97 in the mail. She is not bitter; she wants to be heard. She has given her permission to Pandora, but in the meantime, there are other streaming services who stream a Bobbi Nikles station without her permission. As David Byrne observed, someone is profiting from all this streaming, just not the artists.  Pandora has a current market capitalization rate of $4.14 billion, up 50% since July. Artists should have some stake in this.

Can copyright laws be modified to better serve its core mission of promoting and sustaining the arts?

The Legal Disruptors

Well, there are potential legal disruptors waiting in the wings. David Lange, professor of law at Duke University, takes his First Amendment values seriously. He is a First Amendment absolutist, like Justice Black. This means he reads "Congress shall make no law" and he thinks this means "Congress shall make no law...," not that First Amendment values should be balanced with economics, and social policy, or other factors.  Lange explains the thesis of a book he wrote with Jeff Powell, No Law: Intellectual Property Law in the Image of an Absolute First Amendment, in the interesting talk linked below [Note, I did not ask permission].

Congress has Limited Powers to Make Laws

Lange and Powell suggest that the current copyright laws are an unconstitutional infringement of speech.  Their argument would potentially open the door to rethink how Congress should regulate copyrights in order to better serve the core mission of nurturing and sustaining the arts and sciences.

Here is the essence of Lange and Powell's argument. Our constitution limits the power of Congress to pass laws. Congress may not enact laws that cannot be traced to a specific grant of power enumerated in the constitution. In addition, even when a power is enumerated, it may be circumscribed by one of the amendments to the Constitution. For example, Congress has the power to pass laws to regulate the election of senators and members of Congress (Article I, Section 4), but it cannot restrict or deny the vote to anyone who has turned 18 years of age (26th Amendment).

"No Law Abridging Freedom of Speech..."

Congress has the right to make laws regarding copyrights (Article I, Section 8):
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;
But the First Amendment says "Congress shall make no law ... abridging the freedom of speech or of the press." Surely the copyright laws, to the extent they prevent me from serializing a book on this blog or prevent Pandora and Spotify from streaming songs, are  laws that abridge speech.

As we know, none of our ideas are so very original, so if freedom of speech were limited to saying our very own original ideas, the First Amendment wouldn't amount to much. So the First Amendment protects our repeating the speech of others, from the profound to the profane.

Lange, in his talk, is of course not advocating that Congress can not pass any laws to protect and foster creative works. For example, Congress could make laws that any revenue from reproducing or using someone's work must be shared, that there must be proper attribution to the author of a work (with penalties for violations), and fiduciary protections (e.g. when you send your draft novel to the publisher they can't pilfer it), and provisions to protect the privacy of authors (e.g. Emily Dickinson?) who don't want their works published. But he is advocating Congress should not be able to prohibit me reproducing a book (with proper attribution) or to prevent Pandora and Spotify from streaming my friends's music (with proper compensation for revenue raised).

I think the permissive approach to reproducing "speech" that Lange advocates is consistent with the way we actually reproduce and share speech on the internet. We liberally reproduce content from websites, use photos used by others, reproduce videos like the one below, and we assume that this is o.k. with everyone with proper attribution.

As long as noone's getting rich off this, it's in an author's interest to have their work widely disseminated and discussed (with proper attribution). By allowing a video to be embedded, like the one below, or our music to be streamed from a website, we signal permission and encouragement to do so. It would be nice to have some regulation from Congress that would assure some fair revenue flow to artists when works of art do get monetized.

Here is the David Lange talk; it's the first 25 minutes.  As a bonus, Bobbi Kwall gives a primer on Jewish law in the context of this interesection of the First Amendment and copyright law. 

Intellectual Property Law and Jewish Law: A Comparative Perspective on Absolutism ( Part 1 of 2 ) from DePaul Law on Vimeo.


  1. Nice name check of the Mermaid of Brooklyn. What is the legal risk of a self published e-book that uses credited content without permission, such as song lyrics or movie dialog? Does that fall under fair use as it is clearly not a money making venture?

  2. From what I've seen, I think you're well within the bounds of "fair use." And if you have to share a portion of 236 million downloads, that won't be so bad. Looking forward to that e-book on Wednesday.

  3. Oh, I was speaking hypothetically. 3.97 from Pandora. It really is a feudal system. I'm putting on Bobbi Nikles right now.