Computers, Privacy & the Constitution

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JustinColanninoFirstPaper 14 - 11 Mar 2009 - Main.DanaDelger
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Does Copyright Deter Social Movements?

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 A great example of your point is the difficulty that independent film makers experience in clearing the rights to music used in their films - especially for documentaries. This issue was given publicity when EMI asked for $10,000 to include a cell phone ringtone in the documentary Mad Hot Ballroom (see http://www.nytimes.com/2005/10/16/movies/16rams.html?scp=1&sq=hidden%20cost&st=cse). Documentaries' role as a force for social change is impeded by the often exorbitant cost of including any sort of non-public domain music in the movie, especially when the music is integral to the story being told by the documentary.

-- ElizabethDoisy - 11 Mar 2009

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Daniel- I understand your point, and I don't actually disagree, at least as to the specific situation you seem to be envisioning. But it seems to me your critique applies only to the most obvious use of copyright to stop social movement--- a mustachioed villian swooping in, withdrawing his precious copyrighted work from use by a social movement in order to slow it down or stop it. The John McCain? reference is exactly this sort of "obvious" problem--- that is, a song or other copyrighted work is already being used by a "social movement," and withdrawing might conceivably have some effect on the efficacy of that movement. I agree with you that, in this instance, removing the ability to use a copyrighted work is a pretty ham-handed way of stopping the machine.

But I don't think the obvious is really Justin's point. I think (and correct me if I've misread you, Justin) the more important part of this argument rests on the invisible loss--- the movements that never happen or those that fail because of what they are unable to take from the culture around them.

I've noted to Justin offline that the weakest part of his argument is that he hasn't quite proved his point that music, particularly familiar music, which draws on lyrical or musical themes recognizable to a population, can be an agent for social change. If you spend your Friday nights like I sometimes do, hanging out at Woody Guthrie sing-a-longs (or, if, like Justin, your wife is the archivist at the Woody Guthrie Foundation's archives), that point is evident; knowing about black slave songs, the folk movement and other rebellions and revolutions based around music is what enables one to accept the second part of the argument. But if you don't know, then it's easy, I think, to miss the subtler point, which is that part of the success of early social and musical social movements is owed to the less restrictive copyright, particularly in terms of length (see my comment above). They were able to access the familiar, to speak to people in a language they understood, and their movements were able to succeed thereby. In a world where that doesn't happen because of copyright, there is an inhibition on social movements, both nascent and existent, an inhibition which doesn't depend on a few nefarious copyright owners clumsily trying to put down change.

-- DanaDelger - 11 Mar 2009

 
 
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JustinColanninoFirstPaper 13 - 11 Mar 2009 - Main.ElizabethDoisy
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Does Copyright Deter Social Movements?

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 -- JustinColannino - 10 Mar 2009
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A great example of your point is the difficulty that independent film makers experience in clearing the rights to music used in their films - especially for documentaries. This issue was given publicity when EMI asked for $10,000 to include a cell phone ringtone in the documentary Mad Hot Ballroom (see http://www.nytimes.com/2005/10/16/movies/16rams.html?scp=1&sq=hidden%20cost&st=cse). Documentaries' role as a force for social change is impeded by the often exorbitant cost of including any sort of non-public domain music in the movie, especially when the music is integral to the story being told by the documentary.

-- ElizabethDoisy - 11 Mar 2009

 
 
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JustinColanninoFirstPaper 12 - 10 Mar 2009 - Main.JustinColannino
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Does Copyright Deter Social Movements?

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Fair use

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Fair use is a defense to a copyright infringement. Its application balances multiple non-determinative factors, and its litigation is expensive and risky.(1) 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.(2) 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

1 : See Lawrence Lessig, Free Culture 108-111 (2004) (Recounting a story of clear fair use that was removed from a movie due to fear of lawsuit)

2 : Elisabeth Bumiller, Ascap Asks Royalties From Girl Scouts, and Regrets It, New York Times, December 17, 1996.


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Fair use is a defense to a copyright infringement. Its application balances multiple non-determinative factors, and its litigation is expensive and risky.(3) 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.(4) 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

4 : Thaai Walker, Girl Scouts Change Their Tunes. Licensing order restricts use of favorite songs , San Francisco Chronicle, August 23, 1996.


 
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 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

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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

 
 
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JustinColanninoFirstPaper 11 - 10 Mar 2009 - Main.DanielHarris
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Does Copyright Deter Social Movements?

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-- DanaDelger - 09 Mar 2009

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Well, does copyright deter social movements? My own unsupported suspicion is that copyright might be one of the least clever ways to put down a social movement--a fair use smackdown and terrible publicity are almost guaranteed. John McCain? might beg to differ as to certain web ads, but those were cases more of reproduction than of adaptation.

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

 
 
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JustinColanninoFirstPaper 10 - 09 Mar 2009 - Main.DanaDelger
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Does Copyright Deter Social Movements?

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Justin- I want to start by saying this an interesting and important idea, one that we don’t think enough about. But noting that—that we don’t think much about how copyright deters social movement, in part by withholding the power of song and voice--- also leads me to what I think is perhaps your argument’s most difficult problem. You note that Woody Guthrie and Pete Seeger were both able to draw from the “large public domain” available to them; using this public domain, this shared cultural history, they were able to speak to the people in their own voice. It’s a powerful argument, and I recognize the importance of being able to utilize one’s own historical, cultural patrimony to shape the future. After all, what other tools but the past do we have in order to shape the future?

However, I think it’s also important to recognize that the problems that we have with the public domain and copyright control of social movement are, to some extent, self-fulfilling prophesies. That is to say that because we have been denied access for so long to the public domain access becomes less important, at least in terms of creating or empowering social movement. Woody and Pete were drawing on a cultural heritage that was familiar to people. Part of your argument rests on the assumption that social movements are empowered by art’s ability to use elements from the cultural past— to speak to us in a familiar, yet different voice. But the last works to enter the public domain were freed in 1923. It’s hard to argue that a contemporary artist using a work from 1920 today would have the same resonance that, say, African-American slave songs had in 1930 to someone who’s grandparent or parent was a slave. I recognize this doesn’t defeat the core of your argument (in fact, in some sense it supports it), but what I’m suggesting is that maybe this is a dead letter. Maybe this is a concern whose time came and went when the public domain (and its power to make social movement), by virtue of being almost a century removed from us now, lost its ability to truly resonate. Now that this is so, what does copyright take from social movement today, other than the ability to sing songs which are distant and unknowable?

Your argument might be stronger if you focus not on the fact of copyright itself, but on its length and extensions. It seems to me that it is not copyright necessarily that deters social movement, but the distance between the public domain and the presence. After all, current creators who want to allow their works to be used for social movements, both now and in the future, have the ability through Creative Commons licensing (among other mechanisms), to do so. The real problem, I think, lies not in disallowing access to present creation, but in making sure what of our cultural past is accessible to us is too remote to be of use.

-- DanaDelger - 09 Mar 2009

 
 
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Revision 14r14 - 11 Mar 2009 - 13:59:14 - DanaDelger
Revision 13r13 - 11 Mar 2009 - 12:59:47 - ElizabethDoisy
Revision 12r12 - 10 Mar 2009 - 14:48:51 - JustinColannino
Revision 11r11 - 10 Mar 2009 - 04:07:51 - DanielHarris
Revision 10r10 - 09 Mar 2009 - 20:26:34 - DanaDelger
Revision 9r9 - 08 Mar 2009 - 23:57:11 - JustinColannino
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