WIPIP 2020, Day 2 panel 4

Panel 4: Copyright

Stephanie Bair, Copyright’s Hidden Costs

We’ve used the creativity literature to examine the benefits side of ©, but not necessarily the costs. The benefits of engaging in creative pursuits/having creative skills: being good at problem finding, being good at problem solving, being able to balance convergent and divergent thinking. These are talents but also skills that can benefit from exercise and practice. People who score higher on creativity measures enjoy a range of surprising life benefits, including better relationships, more relationship satisfaction, better ability to handle life challenges big & small, and even lower suicide rates/lower rates of suicide ideation. When you have creative skills, you employ that not just when you’re writing a book or working on a song, but when your partner does something surprising.

Downstream creative activities like home produced YT video using other music; fan fiction; Baby Yoda memes: if fair use is more available to you if you are a celebrity than if you are not, that has implications. Suppression of activities might be more costly than we previously thought b/c these are the types of activities that give people the opportunity to be creative in everyday life, work their creative muscles.

Q: is this lumpily distributed? Are some people just creative in only one domain and not in others? If so, should that inform IP?

A: not thinking yet about doctrine, though for fair use it doesn’t matter what the subject matter is.

Ochoa: benefits of ©: not really about incentivizing creation, but about incentivizing distribution: publishers want exclusivity. Similarly on the cost side, © isn’t inhibiting everyday activities but it is inhibiting commercialization/distribution of these products b/c people are doing these things every day by and large despite the law/b/c of tolerated use; © isn’t costing us creation but it is costing us distribution.

A: that is relevant b/c creation is at the heart of what she’s doing, not distribution.

Charles Duan: similar to The Cathedral and the Bazaar, two different models for developing software.

RT: OTW NTIA report on the benefits at issue—and it is clear that creating a community has huge positive effects; distribution does matter a lot.

Rub: agrees w/ Ochoa, but chilling might be an issue. Also questions of limits on access to source material.

Ochoa: chilling effects come from C&D [or Content ID/DMCA].

Amanda Reid, Social Utility of Music: A Case for a Copyright Exemption for Therapeutic Uses

High transaction costs, low revenues, high benefits: matches the case for other statutory carveouts like face to face teaching. Long history of using music to heal and soothe, likely related to innate properties of musicality; no culture so far found lacks music.  Can help people bypass injured areas of the brain.

Can use song choice & lyric analysis for therapy; can help preterm infants learn to feed by helping them suck in rhythm; improvisation and singalong can be therapeutic; so can song transformation/changing the words to make them more meaningful personally; music legacy and collage to help deal with the end of life: being able to leave behind an artifact is important. Teenager w/inoperable concert wanted to sing Rudolph, the Red Nosed Reindeer for her family—mad scramble for a license, but music therapist served as gatekeeper telling family not to create this artifact w/o a license.  The music licensors are a nightmare for therapeutic purposes, e.g. they may want to hand out sheet music or create a mix tape or change the lyrics—all of these are different rights holders. ASCAP license won’t suffice.

Music therapy has prosocial functional use. Fair use is too unpredictable/ad hoc.

Eric Goldman: the paper is the foundation of advocacy, and it justifies that additional work.

A: heavy responsibility to do no damage, not put it under the microscope for rights holders.

Ramsey: they will oppose. Consider a compulsory license with a small payment?

A: it’s just not much money, in line with the existing exemptions, and even small payment is a big hurdle.

Q: would you reduce the incentive to create therapeutic music?

A: those rhythms are for the nutritive sucking, it’s not an expressive creation. No diminution of creation.

Q: but you can buy relaxation music on iTunes. What about that?

A: will consider. Biggest barrier is establishing a limiting principle: a therapeutic relationship with a therapist who has a health goal. Can discuss licensing/credentialling. Not just music that makes a person happy.

Q: what do you think the hard cases are? Can Dr. Phil create a mix tape for everyone?

A: no, it has to be individualized. Sometimes a particular song reminds a person of an incident they’re working through. Therapists are worried they’re going to get in trouble—if it becomes known what they’re doing. They hear about schools getting C&D letters; they don’t feel they can rely on fair use.

Q: could a hospital then have a music therapist on staff?

A: yes, that seems right.

Ochoa: why are these people so risk averse?

A: they do, they just hope they don’t get caught. Statutory damages are scary.

Q: then we need to change the perception. Recent issue with Disney billing a PTA: there was a huge backlash. Maybe you really need to attack the fear. Music industry is likely to try to reduce any statutory exemption to a useless, dead letter. An exemption that’s too narrow may be less effective than teaching people to stop worrying.

A: even an exemption creates a bit of a bubble around it.

Q: sure [though fair use should do that too].

Duan: it’s a useful finding that the therapists are scared, in itself.

Rub: if they don’t trust fair use, why would they trust the kind of highly limited, technical provision that is likely to result from legislative bargaining?

A: Good question. context: heavy regulation, such as HIPAA—they’re wound tight for good reasons related to the regulation in general. Hospitals sometimes get nastygrams from ASCAP.

Q: good place for best practices.

A: doesn’t help risk aversion.

Q: yes, it does—that’s what they’re for—the documentarians have found best practices workable.

Q: as a non © person, it seems weird that we say “let’s have all these laws, but people should just ignore them.”

A: fair use isn’t an infringement.

Q: but lack of clarity means we’re not really sure. In patent law we don’t really care if a single person is doing something, but in © every act of an ordinary person implicates © law and we have a nebulous doctrine.

Bridy: are these even public performances, in therapy?

A: no, they aren’t. But there may be exceptions, such as a cabaret performance for special needs children organized by a therapist.

Amicus brief in Smith v. Drake fair use case

With the able assistance of UCI's IP clinic, led by Jack Lerner, I worked on an amicus brief in this case arguing that fair use should continue to be a flexible standard that accommodates various types of transformativeness. The brief is here.

Sony's claim that Michael Jackson performed songs on album was just its opinion

Serova v. Sony Music Entertainment, --- Cal.Rptr.3d ---- , 2018 WL 4090622, No. B280526 (Ct. App. Aug. 28, 2018)

[This case says a bunch of stuff that’s way too broad for the facts; people who are concerned about things like attribution rights, and the right of publicity, should probably be paying attention.]

Serova sued defendants for marketing a posthumous Michael Jackson album, Michael. The album cover and a promotional video allegedly misrepresented that Jackson was the lead singer on each of the 10 vocal tracks on the album, when in fact he was not the lead singer on three of those tracks.  Serova brought a fraud claim against some defendants, alleging knowing misrepresentation.  The trial court concluded that the album cover, including statements about the contents of the album, and a promotional video for the album were commercial speech that was subject to regulation under the UCL and the CLRA. 

The court of appeals reversed because the claims about Jackson’s performance “did not simply promote sale of the album, but also stated a position on a disputed issue of public interest.”  That dispute was that some Jackson family members, and others, publicly claimed that Jackson wasn’t the lead singer, and Sony disputed that claim.  [Nice work if you can get it, to create a disputed issue of public interest by making the statement that’s being attacked.] “The identity of the lead singer was also integral to the artistic significance of the songs themselves.” Thus, statements about the identity of the artist were not simply commercial speech, and couldn’t be the subject of actionable unfair competition or consumer protection claims, and Sony was entitled to succeed on its anti-SLAPP defense.

Although music ads are not categorically covered by the anti-SLAPP law, the “commercial speech” amendment that was designed to curb abuses of the anti-SLAPP law by commercial advertisers does exclude ads for expressive works.  [Meaning that this decision isn’t as broadly significant as it might sound—ordinary advertisers can’t take advantage of the “create a public controversy” way out; indeed, this case is an example of exactly why the legislature amended the anti-SLAPP law to exclude most advertisers.]  If an ad falsely claimed that an album contained a particular song, that “mundane commercial misrepresentation” wouldn’t be automatically covered by the anti-SLAPP law.

So the question was whether the challenged conduct had some connection to a “public issue” or an “issue of public interest.” [Of course, the mundane commercial misrepresentation could rise to that level!]  “[P]rominent entertainers and their accomplishments can be the subjects of public interest for purposes of the anti-SLAPP statute.”  The complaint itself described the controversy over the performances. “Facts concerning the creation of works of art and entertainment can also be an issue of public interest for purposes of the anti-SLAPP statute.”

Was this noncommercial speech?  Under Nike v. Kasky, the speaker and the intended audience both suggested a commercial purpose.  But the content was “critically different from the type of speech that may be regulated as purely commercial speech under Kasky” for two reasons [one terrible, one not]. First, the statements “concerned a publicly disputed issue about which [Sony] had no personal knowledge,” and second, “the statements were directly connected to music that itself enjoyed full protection under the First Amendment.”  [Note that if reason number one is sufficient, then this decision is much broader than it says it is, because it would cover a lot of advertising claims for non-expressive products and services.]

Personal knowledge: “Kasky ascribed great significance to the fact that, ‘[i]n describing its own labor policies, and the practices and working conditions in factories where its products are made, Nike was making factual representations about its own business operations” and “was in a position to readily verify the truth of any factual assertions it made on these topics.” [Except that Nike was making representations about its subcontractors’ business operations, and part of the dispute was its limited opportunity to verify all that—even if you think that “Nike” is capable of having “personal knowledge” of anything.  Nike was in a better position to verify the truth of its factual assertions than its audience, but that relative position is not the same as having personal knowledge.  If you engage in speech promoting your own products or services, you are responsible for the claims you make.  If you can’t verify their truth, then you shouldn’t be making those claims.  See also: substantiation.]

Here, Serova alleged that another set of defendants, not Sony, “jointly created, produced, and recorded the initial versions” of the Disputed Tracks and knew that Jackson didn’t perform them.  According to Serova’s allegations, Sony was itself deceived and thus “lacked the critical element of personal knowledge under the Kasky standard.”  Because Sony lacked actual knowledge, it could “only draw a conclusion about that issue from [its] own research and the available evidence. Under these circumstances, Appellant’s representations about the identity of the singer amounted to a statement of opinion rather than fact.”  The lack of personal knowledge also meant that regulating the speech here had a greater risk of a chilling effect, given that the UCL and CLRA create liability without intentional or willful conduct.

Sony’s PR statements directly addressing the public controversy were noncommercial, and the statements on the album cover and promo video “also staked out a position in that controversy by identifying the singer as Michael Jackson. The fact that those statements were made in the context of promoting the album does not change their constitutional significance.”

The court of appeals was unwilling to force Sony to either provide disclaimers about the singer’s identity or omit the disputed tracks from the album.  And in another instance of disturbingly broad language, the court of appeals thought that it would be constitutionally problematic to compel commercial speech of this type, citing Nat’l Inst. of Family & Life Advocates v. Becerra (2018) ––– U.S. ––––, 201 L.Ed.2d 835. Although commercial speech disclosures can mandate “purely factual and uncontroversial information,” the compelled disclosure here wouldn’t be “uncontroversial” because there was controversy around the performer of the tracks, and it wouldn’t be “purely factual” from Sony’s perspective, as it had no personal knowledge of the facts.  [That’s … not what “purely factual” means.  You’re entitled to your own opinion, but not to your own facts.]

[This analysis hints at one reason why commercial speech doctrine has persisted despite assaults on it: all the other ways we have of making distinctions between ok and not ok false speech that seeks to sell a product are much worse. If “controversial” is independently meaningful (and it shouldn’t be if a disclosure is factual), then it’s easy enough for a large entity to generate the necessary “controversy” by taking a stand, no matter how stupid and disprovable that stand is. Likewise with a requirement that a corporate entity have “personal knowledge” of the falsity of its claims—my understanding is that this has royally messed up securities law and consumer protection law went to strict liability for very solid reasons.]

Second, the statements at issue described and promoted an album that was fully protected by the First Amendment. “The identity of a singer, composer, or artist can be an important component of understanding the art itself…. [W]hether Michael Jackson was actually the lead singer of the songs on the Disputed Tracks certainly affects the listener’s understanding of their significance.”  Thus, the statements at issue here were “unlike the purely factual product or service descriptions” in other cases, such as Kwikset and the representation that products were manufactured in the US. [Look, I might even agree with this outcome, but this distinction is profoundly disingenuous.  Kwikset is very much about specific definitions of “Made in the USA” that are subject to contestation, and consumers are extremely unlikely to have a definition of the term specific enough to make the distinctions that the actual regulators have to make.]

Not all ads promoting an artwork are noncommercial speech; “mundane or willfully misleading” claims might not be protected, such as a statement falsely stating that a particular song is included in an album. But “where, as here, a challenged statement in an advertisement relates to a public controversy about the identity of an artist responsible for a particular work, and the advertiser has no personal knowledge of the artist’s identity, it is appropriate to take account of the First Amendment significance of the work itself in assessing whether the content of the statement was purely commercial.” Indeed, a footnote suggested that even representations about the identity of the artist could be regulated, at least if the identity of the artist wasn’t an issue of public interest [in which case no materiality] and the defendants had personal knowledge of the issue.

Three little words make a fair use

Oyewole v. Ora, 291 F.Supp.3d 422 (S.D.N.Y. 2018)

This case grants a motion to dismiss on fair use grounds, though it should have been on lack of substantial similarity in protected expression.

Oyewole is a founding member of the spoken-word group The Last Poets who created the song “When the Revolution Comes” in 1968. The song warns of a coming revolution when “guns and rifles will be taking the place of poems and essays,” with a back track of a drum beat and chants. Also: “When the revolution comes/ Transit cops will be crushed by the trains after losing their guns and blood will run through the streets of Harlem drowning anything without substance.” At the end of the song, the performers chant, “When the revolution comes (3x)/But until then you know and I know n*****s will party and bullshit and party and bullshit and party and bullshit and party and bullshit and party... Some might even die before the revolution comes” (ellipsis in original). Oyewole indicated that the “sole purpose” of the lyrics is to “challenge[ ] and encourage[ ] people to NOT waste time with ‘party and bullshit,’ but to move towards success.”

In 1993, The Notorious B.I.G. released the song “Party and Bullshit” celebrating his “hip hop lifestyle.” It begins: “I was a terror since the public school era / Bathroom passes, cuttin’ classes, squeezing asses / …” The chorus is: “Dumbing out, just me and my crew / Cause all we want to do is... / Party... and bullshit, and... (9x)” (ellipses in original). In 2012, Rita Ora released the pop song “How We Do (Party),” which begins, “And party and bullshit / And party and bullshit / And party and bullshit / And party, and party.” Further lyrics include “I get that drunk sex feeling/Yeah, when I’m with you/So put your arms around me, baby/We’re tearing up the town/‘Cause that’s just how we do.”  The opening lines recur several times throughout the song.  Oyewole alleged that the uses here “contrravened” the original purpose of the phrase as used in “When the Revolution Comes,” which was to discourage people from partaking in “party and bullshit.”

Understandably, the defendants maintained that “party and bullshit” was not protectable, but, following a pattern I find somewhat depressing, the court assumed otherwise and instead resolved the infringement issue as a matter of fair use.  Both songs transformed the purpose of the phrase “party and bullshit” “from one of condemnation to one of glorification,” … “in neither secondary work does it evince criticism or foreboding.” The Poets suggest that, as a result of the partying and bullshit, “[s]ome might even die before the revolution comes.” The phrase is “an expression of disgust and disappointment in those who are not readying themselves for the revolution.”  Not so for the accused songs, which embrace and exalt “party and bullshit” culture. Even the complaint recognized this by accusing the songs of contradicting Oyewole’s original purpose, which was to “encourage[e] people to NOT waste time with ‘party and bullshit.’ ”

Nature of the work: creative, which weighs against fair use, also published, which favors fair use.

Amount and substantiality of the portion used: one phrase. As for substantiality, “although the background track’s cutting out when the Last Poets chant ‘party and bullshit’ adds a level of gravity and importance to the phrase, the expression is not critically important to the song’s message. Instead, the song focuses on the upcoming revolution.”  [This seems like a pretty good reading, by the way; I just think it’s detrimental to the robust analysis of copyrightability/substantial similarity to do this as a matter of fair use.]

Market effect: transformativeness made market effect unlikely. Given the character and purpose from the original work, the target audiences were unlikely to be the same, and even if they were, the songs wouldn’t substitute for the original. [Note no explicit consideration of derivative markets, implicitly encompassed in the transformativeness discussion.]

2017 IPSC Conference at Cardozo School of Law

Usual disclaimers; there were lots of overlaps where I had to make tough choices, and I favored presentations where I hadn't previously commented on drafts.

Day 1 Breakout Session I

Trademark Doctrine

Mapping Confusion – Mark. P. McKenna & Rebecca Tushnet

Problem with LOC test.  Courts use the multifactor test.  Developed for a particular purpose: infringement in cases that didn’t involve directly competing goods, but related goods; and overwhelmingly in word mark/logo cases.  They’ve become a multipurpose tool in every sort of TM case, regardless of the theory of confusion and regardless of context.  One reason that happened is that 20^th c. courts collapsed a whole bunch of different forms of unfair competition claims into TM w/o much consideration of nuances.  Among other things—papered over significant conceptual differences b/t types of claims. Lost sight of use as heuristic, rather than end in itself.  Detached from sense of what they’re supposed to be measuring.  At the end, court shakes a magic 8-ball and tells you which factors matter.  7^th Circuit cases: reason, reason, reason, conclusion.

The LOC test is supposed to be measuring something other than itself. When it doesn’t measure that thing, it’s become detached from its conceptual anchor. Cts implicitly understand that and may truncate the test or abandon it altogether (Rogers/nominative fair use).  That seems awfully ad hoc.  What is the theory about which factors should apply when?  What is the theory for which theories of infringement should be used?  Cracker Barrel restaurants; Kraft’s preexisting processed cheese product Cracker Barrel.  Raises questions about priority in different markets, but 7^th Cir. treats it in conventional source confusion ways—whether people will think it’s the same thing as the restaurant, then says that restaurants differ from cheese. Entirely ignores co-branding (e.g. TGIF frozen foods)—straightforward sponsorship confusion claim. Can also see this in IIC cases or reverse confusion—Gibson guitar—court just says we won’t go there b/c it scares us; could swallow up the rest of confusion b/c in most case it’s reasonable to ask whether some people might wonder about source when they saw a thing.

Paper attempts to do descriptive mapping: you say LOC is the test for infringement, but in fact you’re not doing that.  Sometimes we can justify that—NFU.  But it’s not just theories of infringement but also context—trade dress cases differ from word mark cases, especially in product configuration—increasing emphasis on labeling, contextual aspects that don’t show up in other cases.  Prescriptive: whether it makes sense to explicitly break apart some other categories.

Examples: sensible to say we ought to treat trade dress cases differently, for the same reason we would’ve once treated them as unfair competition claims.  Ought to treat them differently from word mark and logos; we’ve lost something by refusing to consider ontology (at least claiming to).

RT: Rogers as proof of concept.  You don’t need and in fact don’t have a unitary likelihood of confusion test—the 2d Circuit’s recent treatment of nominative fair use notwithstanding.  One payoff: break out trade dress again, not in protectability but rather in infringement.

Dan Burk: is this a paper about LOC or a paper about how courts do things?  It could be said about Fed. Cir. and doctrine of equivalents, or 9^th Cir. and idea/expression.  This is what courts do w/tests.

McKenna: it’s about confusion too—how we ought to think about confusion assertions.  Right now P picks theories of confusion and one sticks (maybe), as if there’s nothing about those theories that fits a particular pattern of case.

Q: Restatement of TM?  After claim preclusion case, having PTO issue studies/working papers about how they might want confusion issues analyzed in different contexts—litigators might have different perspective.  Institutional way of thinking.

McKenna: that’s a bigger Q even than this paper. Believes should be done by courts, in part b/c Congress would not do well. Common law process has produced lessons that have been ignored/forgotten; we are trying to catch the patterns. Don’t want to let TM Ps tell us what they want.

Jennifer Rothman: Instead of unitary tests, we need lots of different tests?  Do we need a unitary concept?  We lose sight of what we’re actually trying to figure out, which is whether consumers are going to be confused [RT: and act on it]. Could more tests worsen that?  Second, you throw NFU and Rogers into the bucket, which are defenses not prima facie case—even if it’s confusing, we might let it go.

McKenna: Rogers is a nice example. What courts have done is recognize pattern of cases—deviate from LOC factors and ask a different set of questions, doesn’t bear much relationship to LOC multifactor test. It’s not a defense; it’s a mode of analysis for a particular type of case.  That’s not the only example, but there are other patterns and we should make that explicit. Part of the cost of using the multifactor test is that we have obscured that.  And it has also obscured, confusion about what?  Let’s be more careful about what we’re trying to measure and test.  Not about proliferation of tests but sometimes truncating the factors. This analysis might lead more naturally to double identity—same mark and same goods, no point in doing LOC test.  Old tests: only thing they really measured was similarity of marks, b/c competition was required. The LOC multifactor test was created because that got blown up. There are pockets that demand different approaches.

Jake Linford: Error costs v. administrative costs.  Do you approach this is concreteness about deviating from multifactor tests, or do you want offramps for different issues, like IIC or post-sale confusion.  You may have to wait for courts to follow things like Kozinski’s NFU test. Which courts should be the innovators?

McKenna: not the 7^th Cir.  Functionality law has crystallized around a pretty clear set of rules (except Fed. Cir.).  Most cases now have converged on results, w/slightly different terminology. This can happen and in some contexts is happening. We should build some conceptual coherence about it so it’s less ad hocery.

Graeme Dinwoodie: One thing that happened w/double identity was collapse into confusion analysis, but w/burdens of proof. Maybe what it highlights is whether you want to categorize types of case by type of use or by reference to the type of harm at issue. If you do the latter, which might be what IIC is about, you might have a vehicle in Lexmark for doing that in the courts. 

McKenna: There’s overlap in type of use/type of harm, but we’re trying to do both. We shouldn’t pretend that all assertions of harm are the same.

Deborah Gerhardt: type of mark too, descriptive v. suggestive?

Copyright Doctrine

Copyright’s Transformation – Glynn S. Lunney, Jr.

Analog drove a lot in © that we don’t even think about today: natural monopoly economics predominate b/c of costs of distribution. Digital era: no longer true.  Example of duration: book would be distributed and then go out of print. Duration didn’t matter b/c the book wasn’t going to be printed again. Similarly w/derivative work. High capital costs to make one film from a book. Public performance: broadcasting networks had limited bandwidth. Digital changes the high fixed costs/low marginal costs of natural monopoly environment.

All the re-users were natural monopolies—broadcasting networks.  License fees are not passed on to consumers: TV station needs license from ASCAP/BMI, that won’t change the number of ads per hour they run.  Derivative works licensing costs to author won’t change cost of movie ticket. A prospect theory of © made sense: assign rights to initial owner and allow them to decide on exploitation.  Without a natural monopoly, © itself becomes the monopoly. The reason we only have a couple of digital performance services is b/c there is a DPR and you need permissions from lots of © owners. We almost had widespread webcasting, but we don’t.  Films: took 40 years to get a good Star Wars sequel after Empire, but for the Long Island Lolita case we got 3 films quickly, each from a different person’s perspective.

Prices of 50 best books from 19^th c/20^th c.  In paper world, average cost was $9/copy for © works, a bit lower for not-in-©.  For digital, average cost was $10 for ©; $0 for not-in-©.  Electrons cost less than trees but consumers are still asked to pay more (transferring their surplus). Getting less (no right to transfer, give to library) but being charged more.

Value-based v. cost-based pricing. Imagine a world w/just 2 products, food and music.  Imagine: each consumer has $100 endowment and identical preferences, and cost of each is $10. If everything is cost-based, then consumers spend $10 on food and $10 on music and keep $80.  If music is value-based while food remains cost-based b/c it’s competitive market, consumers will have to pay $90.  If society gets wealthier and consumers have $120, all that value goes to the industry. © is thus a tax on the full value of everything created by society. What happens if food technology improves and becomes cheaper—do farmers get to keep the surplus? No, b/c it’s competitive/cost-based market. That money goes to the music sector too.

Result of digital age: overestimate social cost of lost incentives and underestimate social cost of lost access.

In the 90s, when we gave the music industry all that money, we don’t see response to incentives we would have expected under conventional theory.

RT: Wouldn’t that tax on innovation still exist if food were competitive regardless?  It goes to consumers or music industry.

Lunney: yes; he’s just trying to point out what it really means to say that the value-based pricing is fine, you can just charge what the market will bear.

Q: if people save instead of spending, does that factor in?  What about infringement factoring in, where people refuse to pay and use other means? Does that make it more like cost-based?

Lunney: I’ve set it up as perfect price discrimination by having step demand function and uniform preferences; in the real world no value-based system works that way and some will be more effective at price discrimination than others. So some will remain in consumers’ pockets.  There’s no cap on how much value-based industries can capture in the model, whereas in the real world you can’t.  [Also b/c in the real world eventually the peasants will revolt, which has some conceptual relationship to torrenting.]

Rosenblatt: demand issues—insatiable hunger for more Star Trek stuff, but maybe not for more copies of a particular Star Trek movie.  Can you account for that?

Lunney: that’s about the costs of licensing, which are treated as if they were still analog.

Incentivizing Conceptual Art Through Social Norms—Guy A. Rub

Multiple copy model (Harry Potter) and single copy model (Guernica).  Books have to control copying b/c this is where the money is made, whereas Picasso’s money isn’t in copies; copies are inferior substitutes, so all he needs is personal property law, not copyright law.  Conceptual art is somewhere in the middle.  Definition: “Art in which the concepts or ideas take precedence over traditional aesthetic concerns. This means the idea is important but the execution is a perfunctory affair.” Value is opposite place from where © locates it.  MOMA paid a lot for Duchamp’s shovel (In Advance of the Broken Arm)—no different to the art world than paying a lot for Guernica.  What do you do if there’s no specific object attached to the work of art?  Consider Felix Gonzalez-Torres, Untitled (Portrait of Ross in L.A.) (1991): It’s instructions.  175 pounds of cellophane-wrapped candies, visitors invited to take candy, museum replenishes the taken candies every day.  It has a meaning: 175 pounds was the weight Ross, his partner, was when he was healthy and not dying of AIDS; the candies are the diminishment of the disease.  But what color, shape, size is the work? None of this is defined.  Can be piled in a corner, put on the floor in a rectangle, used to form a line that encircles the museum.  Where is the © protection, even setting aside the fixation issue?  None of it is protected.  What does he sell? He sells the idea.  A similar work by the same artist sold for $8 million.  What did the museum buy?  Not the candies, and not the ©.  Nonetheless, descriptions do bear © notices in the name of the Felix Gonzalez-Torres Foundation.  The foundation claims to own © in “all works by Gonzalez-Torres” (some of his work has more physical components).

Curators say: these works are “owned,” typically by a museum, but it’s difficult to explain what is owned. They wouldn’t imagine presenting them w/o a lending agreement from the museum that “owns” them. Otherwise this would be “fake” or “forged.” Even though it’s the curator at the “borrowing” museum that decides the shape and arrangement of the candies.  In addition, get permission from relevant artist/foundation. Lending museum generally requires it, and even if not, we will do it. A “heavily inspired” work doesn’t need any of this. If the level of copying is artistically justifiable (“if it’s good”) we won’t ask for permission—curators even had a difficult time understanding the question.  “Copies” by individuals are sometimes perceived differently.

Artists have weapons in their arsenal to control works w/o law—Richard Prince says he doesn’t his like his 1980s work any more, doesn’t represent him as an artist. Some museums won’t show it any more, others will.  Lost at least some value.  He created a work for Ivanka Trump, then disowned it. 

Takeaways: strong gatekeepers/strong enough social norms: art world create a de facto in rem right in public ideas—private ordering steps in, but it mimics legal language of ownership/licensing.  Thin and flexible right, doesn’t seem to cover personal copies or derivative works.  The museum trusts the foundation of Felix Gonzalez-Torres b/c the person who runs it knew him well. Notion of exhaustion isn’t followed; artist and foundation are keepers of authenticity. Legal rights from VARA are limited but powered by community norms. Artists have leverage over “property” owner.

Q: What about the story behind the art? What gives it meaning is the reason that the candies are there and that they weigh 175 lbs. Isn’t that protectable expression?

A: I would push back on that. Those are facts. 

Q: isn’t the candy the expression of the story?  Undefined, but still.  The story that goes along w/it could limit the explanation others might offer.

A: context gives it power, yes

RT: Conceptual appropriation art: Did you ask them what would happen if I titled a pile of candy “After Felix Gonzalez-Torres”?

A: Asked them about appropriation art, though not this precise question.  They said they were happy with having appropriation art in their museums, so if it met that definition they’d be fine w/it.

Q: what would be the advantage of copying w/o permission?  It wouldn’t necessarily allow them to charge less for admission.  What happens to the rogue gatekeeper?  Will donations collapse?

A: they’d excommunicate the rogue. They’d say this isn’t art.

Perzanowski: Do they think they’re following the law?

A: Talking to their lawyers is next step, but his sense is that yes, they think they’re using legal concepts. [Which is consistent w/other things we know about how people tend to think that the law is what they think is just.]

Revisiting (Moral) Rights for IP-Wronged Music Vocalists—Tuneen E. Chisolm

Followup to earlier paper about ownership interests of music vocalists—seen up close inequities that are visited on vocalists because of industry practices/©.  This piece looks at moral rights justification for proposed © solutions.  Can they fill the gap for absence of moral rights protection for non-visual artists.  It’s a contract issue, but also a bargaining power issue.  Different rights for sound recordings; non-economic inequities from involuntary associations, such as political campaigns, advertising, sampling, objectionable soundtracks.  ROP: Hasn’t worked for vocalists when their actual recordings were used under license.  Could address inequities w/moral right of integrity, but also wants to explore whether © could do the job if © protected a fixed performance as an applied composition, w/vocalist as author & full bundle of rights, subject to license but not assignment.  Require consent from vocalist as author to create derivative works.  Practice of stripping out parts of sound recording to have only the voice—but the work is intended as an integrated whole; would require use of the integrated whole, consistent w/idea of what joint work is in the first place.

[This paper has an interesting dialogue w/Lunney’s paper.  Why would a vocalist still sign these contracts in the digital age?  And I don’t mean to suggest that they’re necessarily foolish to do so! Maybe we still have some non-© chokepoints based on legacy industry structure? What would you say to someone who claims that digital distribution will solve your problems of bad contracts.] [Not sure these treatments of uses in advertising are inequities: if someone owns the © in any work and licenses it for ad use, the non-owner creator is out of luck, right? Maybe a practical difference in recognizability]

A: use counter to vocalist’s personal values.  Digital simply hasn’t changed the inequities to date. The labels are consolidated into 3; at the end of the day because they monopolize a lot of distribution, artists still sign w/them.  Independent route is harder, costly to get your music heard above the fray.

Transformative work of the day, you don’t stop edition

40 Years of Hip Hop, condensed into 4 minutes.

Reversing meaning is transformative in use of composition, court rules

Smith v. Cash Money Records, Inc., No. 14-cv-02703 (S.D.N.Y. May 30, 2017)

In 1982, Jimmy Smith recorded a mostly instrumental album released by Elektra/Asylum Records titled Off the Top.  The last track is a spoken-word recording titled “Jimmy Smith Rap” (JSR):

Good God Almighty, like back in the old days. You know, years ago they had the A&R men to tell you what to play, how to play it and you know whether it’s disco rock, but we just told Bruce that we want a straight edge jazz so we got the fellas together Grady Tate, Ron Carter, George Benson, Stanley Turrentine. Stanley was coming off a cool jazz festival, Ron was coming off a cool jazz festival. And we just went in the studio and we did it. We had the champagne in the studio, of course, you know, compliments of the company and we just laid back and did it. Also, Grady Tate’s wife brought us down some home cooked chicken and we just laid back and we was chomping on chicken and having a ball. Jazz is the only real music that’s gonna last. All that other bullshit is here today and gone tomorrow. But jazz was, is and always will be. We may not do this sort of recording again, I may not get with the fellas again. George, Ron, Grady Tate, Stanley Turrentine. So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball.

In 2013, defendants released an album titled Nothing Was the Same (the “Album”) by Aubrey Drake Graham (Drake). The last song on the album is “Pound Cake/Paris Morton Music 2,” whose opening samples about 35 seconds of JSR:

Good God Almighty, like back in the old days. You know, years ago they had the A&R men to tell you what to play, how to play it and you know whether it’s disco rock, … but we just went in the studio and we did it. We had … champagne in the studio, of course, you know, compliments of the company, and we just laid back and did it…. So we hope you enjoy listening to this album half as much as we enjoyed playing it for you. Because we had a ball. …Only real music is gonna last, all that other bullshit is here today and gone tomorrow.

Some words were rearranged or deleted, but no words were added. Defendants licensed the JSR recording, but not the composition, whose copyright was not registered with the Copyright Office or any PRO before the Album’s release. Smith's estate argued that it would not have granted a license for the composition because Jimmy Smith “wasn’t a fan of hip hop.”

The Estate registered the composition copyright thirty-one years after initial publication, after the sampling; it was not evidence that the copyright was valid, and there was a disputed issue of fact on authorship.  The lyrics of JSR indicated that it was a behind-the-scenes recollection of the recording of Off the Top. The statement on the Off the Top album cover explains that it was recorded with “no charts, music format or nothing . . . just playing what we felt . . . off the top of our heads,” but that went only to the recording process, not to the authorship of the rap.  

Defendants weren’t entitled to summary judgment on substantial similarity, even if the sampled portion was mostly clichés. The anti-dissection rule/total concept and feel rule meant that the standard was “a subjective assessment better suited for a jury than a court.”

However, the fair use analysis went a lot better for defendants.  The court rejected two variants: first, that the omission of references to Off the Top made the words applicable to the process of making Drake’s album, and second, that the addition of background music, rearrangement of some words, and contextualization in a seven-minute hip hop track was transformative.  But those things just made the use a derivative work rather than a pure copy. The use of the words to describe Drake’s recording process was a use for the “same” purpose as the original.

However, by editing the recording from “Jazz is the only real music that’s gonna last” to “Only real music is gonna last,” “Drake transformed Jimmy Smith’s dismissive comment into a statement on the relevance and staying power of ‘real music,’ regardless of genre.”  The original statement was “an unequivocal statement on the primacy of jazz over all other forms of popular music.” Defendants’ use transformed this “brazen dismissal of all non-jazz music” into a statement that “real music,” not limited to jazz, is “the only thing that’s gonna last.”  This was new meaning and a sharply different purpose.  Plaintiffs argued that the use couldn’t be transformative because the copied portions weren’t readily identifiable as JSR and because the track didn’t identify Jimmy Smith.  But this wasn’t a parody case, where recognizability was important; it was more like Blanch v. Koons:

The critical question is “how the work in question appears to the reasonable observer,” not the quality or accessibility of the commentary. The average listener of Pound Cake would understand the sampled portions of JSR as a statement that, regardless of how a song was made or how one might classify it, “only real music is gonna last.” Because this purpose is “sharply different” from Jimmy Smith’s purpose in creating the original track, Defendants’ use is transformative and this factor weighs in favor of a finding of fair use.

Factor two: who cares?  Factor 3: 35 seconds of a one-minute track was okay.  Fair use doesn’t require taking no more than necessary; the amount was reasonable in proportion to defendants’ needs. The lines describing the recording of Off the Top “serve to drive the point [on the importance of ‘real’ music] home.”  That is, the use makes the point that “many musicians make records in similar ways (e.g. with the help of A&R experts or the stimulating effects of champagne), but … only ‘real’ music—regardless of creative process or genre—will stand the test of time.”  

Factor 4: There was no evidence of an usurpation of the market for JSR or derivative works.  As “a spoken-word criticism of non-jazz music at the end of an improvisational jazz album,” JSR targeted a “sharply different primary market” than Pound Cake, a hip-hop track. Plaintiffs never attempted to establish a market for licensed derivative uses until defendants used JSR.  Thus, it would be unreasonable to conclude that defendants took “sufficiently significant portions of the original as to make available a significantly competing substitute.” 

Transformative work of the day, Lin-Manuel Miranda edition

What's Next?  Since I'm working on 512 roundtable reply comments right now, it seems particularly appropriate to remind everyone that clips can be fair use.

Copyright nerd question of the day

Lin-Manuel Miranda and Renee Elise Goldsberry perform a revised version of Ten Duel Commandments about Hillary Clinton.  Miranda licensed Ten Crack Commandments--does the license cover this/is it fair use?  What language would you require for a license?

IPSC Breakout Session I

IPSC Breakout Session I: Copyright: Music & Remixes

Assessing France’s Graduated Response Scheme Against Piracy & State Interventionism in the Marketplace for Copyrighted Content

Nicholas Jondet

Strong philosophical attachment to ©, and economic interests—Universal Music is French-owned.  In practice, low fines and no convictions despite misdemeanor status of infringement and possible 3-year sentence and €30,000 possible penalties.  2006: wide consensus for adapting criminal provisions. Proposal of €150 fines for uploading and €38 for downloading. Struck down by constitutional court: infringement is the same whether it’s offline or online.  2007: review of system, which recommended a graduated response adminstered by a dedicated body b/c private parties on their own couldn’t deal with mass piracy.

Constitutional council said that proposals didn’t fit the French human rights framework, notably the 1789 Declaration on Human Rights, requiring balance of copyright and freedom of expression; disconnection must be done by courts.  Two phases.  Authority sends warning; access to internet isn’t absolute but penalty must be imposed by court.  Internet user has duty to secure network against use for infringement.  Hadopi: 2010.

2012: Hollande was elected; his party wanted to get rid of Hadopi.  But he personally was more circumspect.  Tension in independent administration from the start: the carrot and the stick.  Budget was large, but decreased and went up last year to €8.5 million.

If you’re a rightsholder, you collect info and notify Hadopi. 5 million first warnings sent; 500,000 second warnings and 3,000 third warnings.  Last year there were 1.6 million first warnings sent.  2221 deliberations about referring a case to the courts. 361 cases brought to courts. Courts assess the infringer; 51 decisions reported back to Hadopi. Fines between €50-1,000. Copyright societies think the courts are too lenient. One disconnection reported so far.

A lot of studies about whether it works.  Hadopi argues that it doesn’t have enough funding to fulfill its mission.  There’s a database of legal French services done by Hadopi—making it easier for people to find content.

Justin Hughes: detection is the responsibility of a rightsholder.  Data collection has to be approved by the relevant authority, as opposed to what happens elsewhere.

Annemarie Bridy: we use the Copyright Alert system in the US, though it’s not producing any reports or information.  They’re renegotiating the MOU.  Talk about relative benefits of gov’t system?

A: public scrutiny.  The fact that you have an authority in charge of checking that privacy is respected helps w/due process and ability to appeal.  Real issue w/French system is costliness for taxpayer.  The rightsholders should/could put money into the system.

Copyrightability of Digital Remixes and the Right of Remixers

Yahong Li

Remix as a general condition of culture; digital remix brings back Read-Write culture, as argued by Lessig. Musical remixes as prominent examples: Grey Album, Mix the City, Girl Talk.  Legal reality: protection has been strengthened for copyright owners, ISPs, mainstream social media, but remixers and creators fall into a legal vacuum, potentially oppressed both by ISPs and by copyright owners.  Peter Menell: mashup as defining genre, but uncertain contours of copyright pushed this underground and stunted its development, depriving artists of compensation and further alienating netizens from © as a system. Recent cases not just in US; many remixes in Soundcloud were taken down.  Righthaven trolling; FUD in uncertainty of remix.  Andy Baio: “the chilling effect is palpably real.” 

Legislative developments: Canada, UGC exception for noncommercial remix.  UK: new fair dealing exceptions didn’t include UGC; other countries have rejected/not mentioned. US Green Paper says still needs exploring. Questions: is fair use enough? Predictable v. unpredictable. Is it a defense or a positive right?  Does the P have to rebut the defense or does the D have to prove the four factors?

Q: what rights does a downstream remixer have?

A: Right included in copyright.

Q: does the legal culture affect whether uncertainty is good or bad for production?  Or is it more about whether the producers are noncommercial producers?  Compare to dojinshi in Japan.  There, it’s a huge commercial business, in essentially open conflict with formal Japanese law, but there are very few legal conflicts. Why, and can it be exported?

Q: what about eliminating the possibility of injunctive relief?

The New Problem with Music

Peter DiCola

Spotify: huge net losses. The more they make, the more they lose. Partly owned by © owners. What’s going on?  “Why Tech is Eating the Music Industry,” from Digital Music News.  Apple, Alphabet, Microsoft, Amazon, have bigger market cap than ExxonMobil; FB is just behind. Compared to 2006, when it was just Microsoft at the top.  Amazon is about to jump into streaming; like Google & Apple, has deep pockets and doesn’t actually need the music side to be profitable. Music as an add-in to Amazon Prime increases customer loyalty; if they move the needle on retention of a few percentage points, that’s worth billions to Amazon.  The other piece is that music services have special data about us.  Wal-Mart was the biggest music seller before the internet; cheap prices on music got people into the stores.  Music now is not about its own value, but about keeping people on platforms and collecting data about them. Think about how customer data has changed in the new music industry.  Think about changes in the broader context.  Music industry used to require a lot of trains and trucks shipping; big box retailers made music stores smaller part of business and music stores concentrated into chains; labels had little customer data other than record clubs.  In 2000s and 2010s, consolidated into major labels while unauthorized copying exploded. Retail inventory becomes enormous, stable, and generally always growing. Interaction w/customer data—digital retailers have data; shipping is no longer a problem. 

Steve Albini, The Problem w/Music, 1993, the Baffler: recording engineer on Nirvana’s last album; also band members. Net income from a year on a major label contract: $4,031.25.  Today, he thinks Spotify and streaming are great. He says: We never made any money from selling records; now I can reach fans worldwide and support touring and other ways musicians make money.  What could contracts look like in industrial organization terms? Hard to imagine © owners having leverage; not just largeness, but large user base: you have to be on YT, even Taylor Swift agrees.  Hard to imagine Amazon agreeing to give music companies a cut of lawnmower sales, even if data from music helps shape the pitch Amazon gives for the lawnmower.  So downward pressure can be expected to increase. Customer data: could they negotiate for access to who’s buying?  Could © require this?  Raises serious substantive privacy questions, and questions about ©/privacy overlap.

Q: South Korea: Samsung launched “Milk,” w/every phone sold.  Free music service, but rightsholders and fans objected—if people become used to getting free music, then no one will want to pay for it.  Samsung withdrew the music service.

RT: How does this interact w/§512 and the industry’s complaints that YT drives down prices?

A: Everything structural is going against the music industry. Consumer surplus is huge; music fans are saving $100s per year w/access.  So that’s why you have to go look at the development of industry; makes §512’s configuration less pressing/solving the last problem.  Changing §512 is not going to solve these problems.

Q: is Tidal working?

A: No. $19.99 initial price point; market says no, that’s not the price point for music.  Consumers aren’t yet interested in higher quality.  Hard to get consumers to care about artist-owned services, and part of that is that artists make it hard for audiophiles to buy the highest quality FLAC; it’s so much easier to use Spotify.

Annemarie Bridy: Tussle b/t Spotify and Apple re: antitrust w/r/t in-app purchases.  So interesting to watch evolution of exclusivity/fragmentation in availability of content, attempts to differentiate v. antitrust.

A: may need to formally model incentives of people to be in and out of exclusive deals.  What contracts we should expect is a really interesting question; also affected by DoJ ruling on ASCAP.  There are people in the industry who think Spotify can’t survive on its own b/c it doesn’t make any money.

Q: Is Albini saying that artists’ interests are more aligned w/intermediaries than w/labels at this point b/c intermediaries aren’t acting as bottlenecks?

A: Yes, but the one point is the data—if you want to tour, you want to know where you’re popular.

Who Killed the Radio Star? How Music Blanket Licenses Distort the Production of

Creative Content

Ariel Katz & Eden Sarid

Cultural production in radio’s Golden Age: mix of music and talk, mostly talk. In-house production, mainly live.  Mid-50s/60s shift in content to much more music, less talk.  Less quality in talk that remained. Music is prerecorded; content is outsourced, not live/commissioned by radio stations.  Explanations: television; other tech changes; social and cultural changes (video killed the radio star).

Alternative explanation: music is crucial to radio; broadcasters get blanket licenses to perform music from CROs. Conventional wisdom: CROs produce efficient reduction of transaction costs; but raise concerns about lack of competition, market power.  Our point: blanket licenses also distort cultural production, artificially diverting resources away from other cultural products and to music. Where marginal price of playing another song is zero, you play more songs and have less talk.  Unless you’re a publicly funded radio station that need not behave according to pure economic rationality.

But why only after the mid-1950s?  Sound recordings aren’t fit for broadcasting yet; broadcasting is live and all content has to be performed in the studio. The cost advantage of blanket license is less pronounced.

RT: these last two papers have a dialogue about the effects of “all you can eat” both on intermediaries and end users.  Increased social value overall, decreased value to individual input.  Both papers also have a dialogue about placing music within the context of other economic outputs, and the effects of that on what look like internal doctrinal and market issues.  Glynn Lunney’s work is also of note here.  Question: Commercial radio: what’s the role of diversity/niches such as Rush Limbaugh?  Role of product differentiation, as discussed in plenary?  There is an incentive to capture the non-music fans somehow.  Maybe people are satisfying their talk needs with the internet and PBS Newshour.  Also: When you say distortion, you might be asked: compared to what? What would the world look like without CROs? 

A: We could do without them, and so we should be mindful of what they actually do.  Talk radio: may need public funding to produce it.

Hughes: Not clear that there’s any evidence this increases or decreases users’ utility.  Would pay per play be a better system? We could certainly do that, and that might distort less than a blanket license, but that’s only true if the people negotiating a blanket license don’t know much about the radio station, which they do.  I negotiate a blanket license = I know a lot about their users and how much music they play; it actually represents something closer to pay for play than you seem to assume.  “All you can eat” can be predictable if you know who you’re feeding and you’ve been doing it a while.  [nicely said]

A: compare to situation w/o CMOs.  That doesn’t mean pay for every play necessarily; that could be inefficient.  Sony might bundle all its music. 

Hughes: recorded music, not blanket licenses, might be the cause.  Session performers were driven out by recorded music—would have to be really high price before it would justify live music.

A: true, it’s a combination.

How Law Defines Music

Joseph Fishman

Law has focused on melody.  Blurred Lines case: lawyers and music professors agreed that it’s only been melody.  Musicologists saw a sea change b/c all that’s been protected before is melody.  ?uestlove says there was no plagiarism b/c the melody different. But recent cases, not just Blurred Lines, have adopted a more multidimensional view of what counts.  Until about a decade ago, the commentators would have been right.  How did we get here? Older view was in tension w/what other genres went through, where any aspect could in theory be the basis of a © claim. If what we want is theoretical purity, then the trajectory is good; healthy outcomes for music, however, would return to the old focus on melody. The reasons for rejecting melody only were good ones but we end up with a suboptimal, unpredictable, overly broad law as the result.

Commentators in the West used to think melody was the most important, influential part of a musical work. Music publisher rearranged serious opera into light dance music; court rejected defense of fair abridgement b/c melody was that in which the whole meritorious part of the invention consists.  Thus, it wasn’t an abridgement, in reality.  But melody’s dominance is not true of lots of music today, from jazz to pop music.  Producers are paid lots to contribute elements long before melody enters.

Traditional justification is weak, so we shouldn’t be surprised by Blurred Lines type cases in which courts don’t feel bound to dismiss claims notwithstanding the absence of melodic copying.  Other recent cases: New Old Music Gp. v. Gottwald (SDNY 2015)—purely about percussion.  BMS Entm’t v. Bridges (SDNY 2005)—case about reuse of phrase “like that.”  Court says original selection and arrangement is enough: jury question for total concept and feel.  Blurred Lines fits both these templates.  Each individual element isn’t de minimis isn’t a matter of law. Not as much of an outlier as sometimes portrayed. If there’s a trend, where do we go?

There is a better, doctrinally neglected reason to focus on melody: would make infringement assessment more predictable. Music is relatively modular. It’s often possible for composers to break off a discrete chunk called melody and focus on that as the thing to avoid copying. You don’t have to play the impossible game of divining a similarity index with elements of unknowable weights, from melody to orchestration to percussion to timbre etc.  Good for downstream creativity.  This rule would be an improvement b/c it cabins the inquiry. Only problem is that ex ante predictability as a policy lever for substantial similarity has never gotten much traction, though it’s been tried.

Shyam Balganesh: take a look at Mark Rose’s new book, Authors in Court, w/behind the scenes study of case in which the attempt was tried.  The plaintiff’s atty had written a treatise on breaking down works.

Hughes: is this shift b/c of the rise of recorded music and the fading of the score into the background?  You said in the paper jazz musicians understood this melody rule about ©, but I don’t think that’s true.

A: Mark Osteen studied bebop in 50s and 60s and said it; have to go back and check his sources.  Popular legal consciousness: not terribly nuanced, but understood that melody = lawsuit but borrowing arrangement would not.

Andrew Gilden: wouldn’t this make it easier for famous artists to take from nonfamous artists?

A: why asymmetry?  Would make it just as easy for relatively unknown artists to copy nonmelodic stuff. 

Pam Samuelson: writing was pretty much the melody prior to 1976, so that history might support your thesis.  Might not be bad idea to go back and bolster the argument around the 1976 Act by looking at what the cases were focused on at that time. One question: is music different now than it was at the time these issues were being decided by Congress?  

Music Licensing conference at NYU, June 17

 

Join us for a conference bringing together distinguished academics, industry representatives, and policy experts to discuss how the music licensing ecosystem can compensate the right people more transparently, fairly, and efficiently.  The conference, which is jointly organized by the Technology Policy Institute and New York University School of Law’s Engelberg Center on Innovation Law & Policy, will take place at NYU School of Law in NYC.  The agenda and list of speakers are below.

 

The program, including continental breakfast, is free.  Attendees must register in advance.  For more information, contact annemarie.hassett@nyu.edu.   

 

Program Agenda

 

8:00 - 8:30 AM      Welcome Reception and Breakfast

 

8:30 - 8:35 AM    Opening Remarks

 

8:35 – 9:45 AM    Roundtable 1:

How do we structure a modern digital music distribution music-licensing ecosystem to be more competitive and work more efficiently and fairly for all stakeholders? 

 

9:45-10:00 AM     Break

 

10:00 – 11:00 AM  Roundtable 2:  Deep Dive into Digital Databases

 

11:00 - 11:15 AM   Break

 

11:15 AM - 12:15 PM    

Roundtable 3:  What Changes to the Current System Are Feasible that Would Facilitate a Transition to a More Competitive Market?

 

12:15-12:25 PM     Closing Remarks

 

12:30 PM                Conference ends

 

 

Confirmed speakers include:

 

Jacqueline Charlesworth (General Counsel and Associate Register of Copyrights, United States Copyright Office)

 

Dale Collins (Partner, Shearman & Sterling LLP; Adjunct Professor of Law, NYU School of Law)

 

Andrea Finkelstein (Senior Vice President, Business Affairs, SONY Music Entertainment)

 

James Griffin (Managing Director, OneHouse)

 

Michael Katz (U.C. Berkeley, Sarin Chair in Strategy and Leadership and professorships in both the Economics Department and the Haas School of Business)

 

Lee Knife (Executive Directors, Digital Media Association)

 

Thomas M. Lenard (President and Senior Fellow, Technology Policy Institute) 

 

David Levin (Vice President, Digital Licensing Broadcast Music, Inc. (BMI))

 

Steven Marks (Chief, Digital Business & General Counsel, Recording Industry Association of America)

 

Larry Miller (Clinical Associate Professor and Director, Music Business Program, at NYU Steinhardt)

 

Katherine Oyama (Senior Policy Counsel, Google, Inc.)

 

Casey Rae (Director of Music Licensing, Sirius XM)

 

Daniel Rubinfeld (Robert L. Bridges Professor of Law and Professor of Economics Emeritus at the University of California, Berkeley and Professor of Law at NYU)

 

SoundExchange

 

Christopher Sprigman (Professor, NYU School of Law)

 

Lawrence J. White (Robert Kavesh Professor of Economics at New York University Leonard N. Stern School of Business and Deputy Chair of the Economics Department at Stern