| | |
|
JustinColanninoFirstPaper 12 - 10 Mar 2009 - Main.JustinColannino
|
| |
| META TOPICPARENT | name="FirstPaper%25" |
|---|
Does Copyright Deter Social Movements? | | | Fair use | |
<
< | Fair use is a defense to a copyright infringement. Its application balances multiple non-determinative factors, and its litigation is expensive and risky. Even if political use of a particular song is found to be 'fair' after trial, copyright erects barriers to social movements not circumvented by fair use. The problem is that copyright can prevent art from becoming a part of culture that can be drawn upon in the future for political speech. For example, in 1996 the Girl Scouts of America were asked by ASCAP to pay royalties for, among other things, performing the Macarena at camp. It is doubtful that the Macarena will become a vehicle of political speech. However, enforcing copyright on groups of people singing and dancing the Macarena together results in others not singing and dancing for fear of lawsuit. This lowers the chance that the Macarena and other songs will be known, taught, and adapted for social use in he future. Thus, the chilling effect on free speech can occur before the 'fair' political use is ever contemplated.
Notes
:
:
| >
> | Fair use is a defense to a copyright infringement. Its application balances multiple non-determinative factors, and its litigation is expensive and risky. Even if political use of a particular song is found to be 'fair' after trial, copyright erects barriers to social movements not circumvented by fair use. The problem is that copyright can prevent art from becoming a part of culture that can be drawn upon in the future for political speech. For example, in 1996 the Girl Scouts of America were asked by ASCAP to pay royalties for, among other things, performing This Land Is Your Land at camp. Enforcing copyright on groups of people singing and dancing together results in others not singing and dancing for fear of lawsuit. This lowers the chance that song and dance will be known, taught, and adapted for social use in he future. Thus, the chilling effect on free speech can occur before the 'fair' political use is ever contemplated.
Notes
:
| | | | | | As to the chilling effects of the public performance right: did none of us learn "Happy Birthday" as a child? Some of us even learned the Macarena (over which, as the article points out, ASCAP could not have and never did threaten the Girl Scouts). The "Happy Birthday" problem is more a threat to singing waitstaff than to chances that songs will be known or taught in a non-profit or "social" context. 17 USC 110(4).
-- DanielHarris - 10 Mar 2009 | |
>
> | Daniel, thanks for pointing out my factual inaccuracy. I clearly did not read the article well. I had found this, did a bit more research and seized on the visual of a song and dance. That was sloppy. However, I did get to link to a video of the Macarena, which was a plus.
On to your other two points. First, your McCain example is exactly the type of speech that I attempted to show concern with in the idea expression dichotomy section. If you check out the old and new versions of his attack on the media's love of Obamba at this link, you might agree that the value added to the political message by the recognizable tune is substantial. I argued that in certain political speech, expression is as important as idea -- McCain is no exception.
I think your second point finds what I think could be the weakest part of my argument: do the educational, not for profit and other fair use provisions do enough to allow people to come together to learn music and dance and build culture? Maybe they do, and maybe they don't. Remember, ASCAP still demanded payment from Girl Scouts to sing This Land Is Your Land, despite my bungling of the facts. The threat of lawsuit can chill speech. But I do think you make a good point.
Regardless of whether or not we agree on that point, your comment made made me think of a way forward that perhaps more people can get behind. Do the educational, not for profit and other fair use provisions do enough to allow people to come together to learn music and dance? Maybe they just used to. I do believe that part of the problem is a social one: people are not used to making their own music. However, perhaps it is just that we make our music (and share it with each other) in a different way. Channeling Lessig a little bit, maybe the chilling effect is not located on the girls singing This Land Is Your Land at camp (though, don't you think ASCAP demanding payment over other songs could have made them, and other less politically connected solo camps, think twice?), but on these people instead. Maybe we share and “socialize” differently than we did before. Maybe the answer to shoring up the argument is to take out the (inaccurate) 1996 reference to the Macarena and summer camp and replace it with a 2007 reference to Soulja Boy and youtube. Thoughts?
-- JustinColannino - 10 Mar 2009 | | |
\ No newline at end of file |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |