December 10, 2010
When POTUS Calls....
So the Prez guested on Mythbusters (frankly one of my favorite programs) on Wednesday night, December 8, and asked head Mythbusters Adam Savage and Jamie Hyneman to take another look at the infamous story that Archimedes figured out a way to set fire to the sails of attacking Roman ships. (We got a look at their meeting with the President right there in the White House--very impressive. They clean up nicely). Adam and Jamie, who had already looked at this myth in Season 4, took another stab at the problem. If you missed this episode, it airs again on December 12 at 9 p.m., 8 Central time, on the Discovery Channel.
The IP of Comedy
In this paper, which will appear as a chapter of a forthcoming book from the Univ. of Chicago Press, "The Making and Unmaking of Intellectual Property," we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected comedians effectively against theft. Initially, jokes were virtually in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a system of IP norms. This system serves as a stand-in for formal law. It regulates issues such as authorship, ownership, transfer of rights, exceptions to informal ownership claims and the imposition of sanctions on norms violators. Under the norms system, the level of investment in original material has increased substantially. We detail these norms, which often diverge from copyright law's defaults. Our description is based on interviews with comedians, snippets of which we include throughout the paper.
Our study has implications for intellectual property theory and policy. First, its suggests that the lack of legal protection for intellectual labor does not entail a market failure by necessity, as social norms may induce creativity. Second, it suggests that the rules governing a particular creative practice affect not only how much material is created, but also its kind. Third, we suggest that comedians' IP norms system emerged over the past half century as technological change increased the benefit of having property rights in jokes and concomitantly reduced the costs of enforcing those rights. Fourth, we note that stand-up's norms system recognizes only a limited set of forms of ownership and transfer. We suggest that the system's crude rights structure is driven by the fact that effective enforcement requires that ownership be clear to the community. Lastly, social norms offer a way to regulate creative practices that do not sit well within IP law's one-size-fits-all mold. They do so, moreover, without imposing on society the costs of disuniformity in the formal law, including legal complexity and industry-driven lobbying.
Stand-up's norms system has both benefits and costs, which we detail in the paper. However, norms-based IP systems offer an alternative (or supplementary) cost/benefit bundle which in some cases may be superior to that of formal law alone. In stand-up's case, norms economize on enforcement costs and appear to maintain a healthy level of incentives to create alongside a greater diversity in the kinds of humor produced. A final assessment of stand-up's social norms system awaits further work. With what we currently know, we are cautiously optimistic.
Download the essay from SSRN at the link.
December 9, 2010
That "R" Rating: Wanted and Desired
The Weinstein Company is getting that much desired "R" rating for its film "Blue Valentine." The MPAA Appeals Board has overturned the movie's intial NC-17 classification, ruling that its content (particularly one scene) was sexually graphic but not graphic enough to warrant the "NC-17" rating, which would probably steer the film out of many theaters. More here from The Hollywood Reporter.
December 7, 2010
"Kung Fu Panda" Suit Proceeds To Discovery
An update on that lawsuit against Dreamworks Animation for theft of the "Kung Fu Panda" idea. Terence Dunn says he pitched the idea of a spiritual kung fu fighting panda bear to the studio in 2001 but the studio said it was not interested. Later, it created the film "Kung Fu Panda," which made millions. Last week, the judge hearing the case allowed the plaintiff to proceed to the discovery phase, denying the defendants' motion to bifurcate the case and to require Mr. Dunn to prove damages. More here from The Hollywood Reporter.
Assange Says He'll Fight Extradition To Sweden
Julian Assange, just arrested in the UK and denied bail on sexual assault charges, says he intends to fight extradition to Sweden.
Wikileaks Good? Wikileaks Bad? Maybe Not So Clear
December 6, 2010
Expanding the Sound Recording Performance Right
On February 4, 2009, Senator Patrick Leahy introduced the “The Performance Rights Act” to the Senate, joined by Representative John Conyers in the House of Representatives. Thirty-eight years after sound recordings were first granted federal copyright protection against unauthorized reproduction and distribution, and more than ten years after gaining a limited digital performance right, legislation is pending that would once again expand the scope of sound recording copyrights to encompass terrestrial radio broadcasts - broadcasts that have historically been exempt from sound recording performance royalties.
The fighters in this brawl are sophisticated heavyweights. In one corner of the ring are record labels - an industry in distress, which has consistently struggled to adapt to the digital market. In the other are the broadcasters - a media behemoth whose cries of “promotional compensation” seem increasingly unconvincing in our digital world. Standing on the sidelines are music fans that rely more and more on digital performances, unknowingly thinning record label wallets, and perhaps stalling creativity, in the process.
Instead of (or in addition to) seeking remuneration from terrestrial radio stations, this paper suggests that sound recording copyright holders should seek to further expand their digital performance right to permit collection of royalties from websites which regularly perform user-generated audiovisual works. In consideration for an annual blanket fee, these performance-based sites would be secure against DMCA notice-and-takedown proceedings and infringement actions from participating sound recording copyright owners. Such a compromise would permit sound recording copyright holders to receive just compensation for their works performed online, save sites like YouTube millions in administrative and legal fees, and permit users to freely and fairly post sound recordings online.
The Rights In the Copy
Copyright laws throughout the world are copyright holder centric and present a very fragmented source to comprehend the rights of users, and in particular of consumers owning copies of copyrighted works. Although in recent years, a growing number of commentators have worked towards defining the place of users in copyright law, little attention has been devoted to the nature and justifications of copy ownership of copyrighted works. This paper applies property and copyright theory to define and justify the existence of copy ownership of copyrighted works. It seeks to carve out in clearer terms the place of copy ownership legally and normatively, to offer a counterbalance to a predominant copyright holder centric approach to copyright law. As copy ownership of copyrighted works is progressively vanishing through online digital distribution of copyrighted works, it affirms the significance of copy ownership within copyright and property law. This paper also looks at how potentially conflicting ownership rights of copyright holders and of copy owners should interact, and how they should limit one and the other. It founds the justifications of copy ownership on the a priori normative value of open ended ownership freedoms, as well as within the instrumental justifications of copyright, to incent the creation and dissemination of copyrighted works. It also applies the concept of property limitations in property theory to explain how copy ownership acts as a property limitation on copyright and vice versa. Viewed in this light, copy ownership is a right that needs to be mediated against the exclusive rights of copyright holders. The adaptability of the property institution allows the concept of copy ownership to evolve, taking into account the available control and access technologies at any given time. It provides important tools that may help resolve the ongoing controversy opposing the rights of consumers to the rights of copyright holders. The possible eradication of ownership of digital copies is not likely to resolve this conflict, unless it takes into account the underlying interests of consumers who lawfully access copyrighted works. The a priori normative force of ownership freedoms, the role of copy ownership in pursuing the instrumental goals of copyright, as well as the intrinsic transaction efficiency that results from it, incarnate a strong vehicle as well as a safeguard to consumers’ rights to copyrighted works.
Download the paper from SSRN at the link.
Rethinking Public Forum Doctrine
First amendment doctrine treats state regulation of private speech differently from the government’s own speech, and public forum doctrine falls somewhere in between. This essay explores whether we ought to rethink some of public forum doctrine to grant more content-based authority to the state. While we must hold the line regarding regulation of private speech, many forums are created and managed by the state for legitimate public purposes, purposes that include attention to speech content. The state may legitimately use its power to speak, fund speech, and open new forums for speech, to promote distinctive, and at times contested, views of the good. Among other things, this essay will explore the recent decision in Christian Legal Society v. Martinez.
Download the article from SSRN at the link.
Connecting Critical Race Theory and Hip Hop
andré douglas pond cummings, West Virginia University College of Law, has published A Furious Kinship: Critical Race Theory and the Hip Hop Nation,in volume 48 of the University of Louisville Law Review (2010). Here is the abstract.
Two explosive movements were born in the United States in the 1970s. While the founding of both movements was humble and lightly noticed, both grew to become global phenomena that have profoundly changed the world. Founded by prescient agitators, these two movements were borne of disaffect, disappointment, and near desperation - a desperate need to give voice to oppressed and dispossessed peoples. America in the 1970s bore witness to the founding of two furious movements: Critical Race Theory and Hip Hop.
Critical Race Theory was founded as a response to what had been deemed a sputtering civil rights agenda in the U.S. Driven by law professors of color, it primarily targeted the law by exposing the racial inequities supported by U.S. law and policy. Hip hop, on the other hand, was founded by budding artists, musicians, and agitators in the South Bronx neighborhoods of New York City, primarily driven by young African American disaffected youth, as a response to a faltering music industry and abject poverty. While these two movements seem significantly separated by presentation, arena, and point of origin, they share startling similarities. Among the many similarities between Critical Race Theory and hip hop, include the use of narrative in response to racism and injustice in a post-civil rights era, a fundamental desire to give voice to a discontent brewed by silence, and a dedication to the continuing struggle for race equality in the United States. This Article seeks to be among the first to explore the parallel paths of evolution shared by the Critical Race Theory movement and the hip-hop nation in striving toward their mutual goals of radical realignment and societal recognition and change of race and law in America.
Download the article from SSRN at the link.