Back in June, as an intern at the Berkman Center’s Cyberlaw Clinic, I worked with members of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press in drafting an amicus curiae brief (PDF) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. In this case, a mortgage industry news website obtained documents from New Hampshire and Massachusetts Banking Departments, providing details the ongoing investigation of a New Hampshire mortgage company (an investigation which ended in over $700,000 in fines). Upon publishing those documents the company in question sued the website in New Hampshire state court, ordering that the documents be removed and the source of the documents be revealed. The Rockingham County Superior Court granted these requests, and the case was appealed to the New Hampshire Supreme Court.
We focused on the First Amendment issues at stake case, and there were many: the lower court’s injunction worked a prior restraint on speech, it punished the disclosure of information that did not violate New Hampshire law – and even if it had, federal precedent would prohibit applying that punishment to these facts – and it ordered the disclosure of the identity of an anonymous source, in violation of both U.S. and New Hampshire laws and case precedents. (Our press release following our filing is here.)
Last Wednesday the New Hampshire Supreme Court heard arguments from the parties in the case. Being in DC, I could not make it up to see the argument, but reports from the hearing are coming from Poynter Online, New Hampshire Public Radio, and /.. These reports suggest a great deal of the oral argument was spent discussing whether the rights recognized as awarded to “journalists” should apply to an online website of this nature, particularly the rights which protect disclosure of sources.
I find it interesting that, from what I’ve seen, there’s no record of the court discussing the issue most often advanced in a website publication case: “this isn’t a prior restraint as the material was published before it was removed.” The respondent lead with this in their brief (PDF), but no sources note this as being in the discussion. Instead, it seems as if the reporters’ privilege against revealing anonymous sources was the main tack of the respondent’s oral argument. This is a major hurdle for the respondent, but certainly not the only hurdle: even if they were to persuade the Court that the privilege should not apply to this website, they still would have to deal with the prior restraint and unconstitutional punishment issues raised by the petitioners, and the fact that the statute under which they brought this claim does not appear to create a private right of action. The absence of these arguments from the reported discussion during arguments could suggest that Court has already made up their mind on those issues.
Naturally, when the Court rules I’ll be sure to pass along that information.
Sorry I’ve been away. With a law journal article in the works and exams coming up I expect things will be quiet here for a while.
I wanted to break my silence to let you all know that Shepard Fairey – plaintiff and cross-claim defendant in the highly-public Fairey v. Associated Press (the Obama “Hope” poster case) – has just found new attorneys and a new firm to replace the departing Durie Tangri LLP and Stanford Center for Internet and Society. The details of the events leading to their departure are rather depressing for those of us who wanted a clean fair use case; I’ll leave it to Wired and BoingBoing if you aren’t familiar.
After losing one of the best cyberlaw thinktanks and an excellent boutique law firm to Fairey’s totally inexcusable shenanigans, a lot of us out here (“us” being those hoping that this case comes down on the side of fair use or non-infringement) were worried that he wouldn’t find reputation of the caliber that Durie Tangri and Stanford provided in this all important fair use case. Lucky for us, he found the two professors that wrote the book on modern copyright policy.
Specifically, the books Promises to Keepand Born Digital. Professors Terry Fisher and John Palfrey, along with litigation giant Geoffrey Stewart from the firm Jones Day, have been identified in a court filing last week as the counsel selected to replace the departing attorneys. From Fairey’s perspective he could not have found brighter minds to take on this case. Here’s hoping they can keep this case away from this past month’s distractions and back on to the all-important issues.
Their arrival on the case is pending Judge Hellerstein’s approval of Fairey’s motion. For more, check out Justia.
Update (12 Nov): The New York Times reports that Judge Hellerstein approved the motion.
Digital Music News is reporting today that psychobilly legend Mojo Nixon is going to release his entire catalogue – over 150 songs – online for free download, alongside the debut of his latest album, Whiskey Rebellion (also free).
DMN:
“I’m just the kind of crazy person to do it,” Mojo told Digital Music News in a phone conversation. “What do I have to lose? I’ll make make more money off of this in the long run.” […] The Orchard is now preparing an official release on the matter, pending various executive approvals. “Getting all 150 tracks, that might be like having a bacon sandwich with sausage on it. It’s like chocolate ice cream with chocolate syrup,” Mojo shared. [Link added for reference.]
I don’t put this up here suggesting this is the way to go for everybody. Indeed, Mojo’s 1980s releases on Restless Records might cause The Orchard some trouble during those “executive approvals.” Restless would probably be more into getting their catalogue out there for free before they were bought out by WMG. Nevertheless, it’s a fascinating step, and something to talk about during the Future of Music Coalition Policy Summit over the next few days.
Carleton (and before him James Nord and YouTube user mobius32) brings to my attention this excellent video about the “Amen Break” – one of the most important 6 seconds in recorded music, originally recorded by The Winstons. Check it out:
This is loosely related to a journal article I am writing on sampling rights. I don’t think I’ll be getting as abstract as the “cultural public domain” argued here, and my conclusions might cut directly against some of mobius32’s arguments here, but his concern about copyright re-appropriation and the incoming clash between copyright law and digital sampling are certainly right up my article’s alley. And I’ll certainly be taking up the Bridgeport Musiccase mentioned in passing towards the end of the clip. This is a must-watch to understand the foundations of many of our modern discussions on sampling rights. Check it out.
Gretchen is participating in a contest put together by TravelOregon.com, which is offering a series of “Cuisinternships” to the candidates with the most convincing pitches via YouTube movie. Gretchen is participating for a chance to win a week-long brewmaster internship at the very excellent Full Sail brewery in Mt. Hood. While the final candidate will be picked by those running the program, a “people’s choice” pick – selected as the video with the most positive ratings – will win a basket of goodies. Besides, a boost in the rankings may attract that all-important attention from the Full Sail crew that lands her the gig.
Gretchen is a brilliant scientist and brews some mighty tasty beers. (She is also my girlfriend, but I would say that about her even if she weren’t.) She talks about beer the same way I talk about music and intellectual property. You should really help her land at a spot where she can hone her craft.
Fully recognizing how weird it is to use a worldwide forum for a message targeting about 1500 kids, here’s a special message for the GW Law community: I’m on the e-board of the Cyberlaw Students Association, and we want you.
So if you’re a GW Law student and interested in cyberlaw, come to our meeting on Wednesday. There’s free food in it for you.
Whenever Coldplay releases an album these days it starts a small wave of copyright litigation. Last year’s Viva La Vida or Death and All His Friends was no exception. Last week, however, that docket got a little bit lighter, as the most prominent infringement case settled. Joe Satriani, famed rock guitarist and founder of the G3 tours, claimed in a lawsuit back in December that the title track off of Viva La Vida infringed Satriani’s copyright in his 2004 track if “If I Could Fly.” In essence, Satriani argues “Viva La Vida” copied his song without permission. Here are both for comparison:
Joe Satriani – If I Could Fly
Coldplay – Viva La Vida
For a really ill-informed discussion of this case, check out the comments on the Satriani YouTube post. For a more music-theory based discussion of their similarity, check out this excellent YouTube video from a guitar instructor in Canada.
On the music side of this (and largely care of the above posted video) here’s the rundown: Coldplay’s song is in a slightly swung rhythm at about 138 BPM, in the key of F minor doing a VI–VII–III–i (Dbmaj–Ebmaj–Abmaj–Fminor) progression. Satriani’s song is also at about 138 BPM, roughly the same rhythm, and the chorus goes through a iv–VII-III-i progression in B minor (Em7–Amaj-Dmaj7–Bm). At this most fundamental level, the only variants between the two are the key and the first chord of the progression – and the two different chords are actually quite similar. The VI chord in the Coldplay is the relative major of the iv chord in the Satriani (which is to say if they were in the same key they’d share 2 out of the three notes in the chord). In other words, the meter is the same, the chords are virtually identical, and where the chords vary they still are quite similar harmonically. Now, this progression is just a progression, and as an old song from my band notes there’s a lot of songs that share the same three or four chords. Nevertheless, it is a fairly unique progression, a fact which wouldn’t bode well for Coldplay. There are many other elements to consider, but it does certainly lay a musical foundation for substantial similarity.
As for the legal analysis, it’s important to remember that the substantial similarity between these two would have to be either admitted by Coldplay or found at trial (Coldplay demanded a jury trial in their answer, so it would have gone to a jury to decide unless the evidence was so overwhelming as to lead a judge to direct a verdict on that point). Absent such a finding or stipulation, I can’t say for sure whether the harmonic structure, meter, and rhythm alone would be legally sufficient. Satriani would also have to prove that Coldplay had access to the work, but given how broadly Satriani is distributed and how broad Coldplay’s musical arms reach I don’t imagine this would be difficult. Coldplay seems to have challenged this exact point in their Answer, however, arguing as an affirmative defense that these two songs were independent creations. In other words, Coldplay did their song without ever hearing the Satriani song. This was one of nine affirmative defenses in their Answer that Satriani would have had to get around, although some of the defenses look a little dubious. (Including “lack of originality” in the Satriani work, which either suggests that Satriani’s work does not have the requisite creativity, which is preposterous, or that Satriani forfeited copyright through 17 U.S.C. § 103(a) by using other copyrighted material without permission, which is highly unlikely.)
Whatever we think of Satriani, Coldplay, or the case in question, the answers to all these legal problems have left the realm of the courts. The parties asked to settle the case in front of an arbiter in July, and last Wednesday the parties filed a joint stipulation for dismissal of the lawsuit. Either Satriani was scared off or (more likely) the parties came to some form of settlement. The question of whether Satriani would have won at trial is now left to speculation by the copyright nerds of the world.
If you’re still interested in the details of the case and up for some legal digging, this case is captioned Satriani v. Martin et al, and all of the filings are up on Justia. In May, Cat Stevens (now Yusuf Islam) also claimed “Viva La Vida” infringed his original “Foreigner Suite” and threatened action, but about a month later he dropped the suit.
Update – 15 Sept, 8AM: Justia posted two more filings on the Satriani v. Martin docket yesterday, including an official order to dismiss the case with prejudice (meaning that Satriani may not file the case again). Not too much to see here; I suspect someone will have to get in touch with the parties to hear the details of the settlement.
I also want to take a second to say hello to the folks over at Techdirt for mentioning my blog yesterday while covering this story. Many thanks!
Update 2 – 23 Sept, 10AM: I realize in the comments I was playing it a little fast and loose with the degree to which expert testimony would be admissible with respect to the infringement, so I want to clarify:
Independent origin is a total defense to copyright infringement. If I were a monk in Nepal and I came up with a song identical to “Viva La Vida” without ever hearing Coldplay’s song to begin with, I could not be found to infringe Coldplay’s song. However, proving this degree of “copying” can be very difficult absent party or witness admission (“Yes, I saw Chris Martin at a Joe Satriani concert where he played ‘If I Could Fly.’ Chris had his tape recorder out.”). Accordingly, courts allow expert testimony to show how unique elements may be used as circumstantial evidence of direct copying (“Given these unique factors, it’s highly unlikely that Chris Martin would have come up with this on his own were it not for hearing Satriani’s song.” combined with “‘If I Could Fly’ was a #1 on Top of the Pops for two weeks and it’s extremely likely that Chris heard it.”). This is sometimes called the “access/striking similarity” inference of copying.
Proving “copying” is only half of the battle, however. Satriani would also have to prove that he copied the elements in such a way as to be unlawful appropriation. Not all copying is copyright infringement, after all, and his copying would have to go to the protectable elements of the expression, and not just the abstract ideas. The courts have employed variety of techniques in finding this, but at the heart they all recognize this as being the province of the jury, and not the experts. In other words, we play both and ask the jury to determine whether the copying done in the secondary work is “too much” of the original. The term most often tossed around here is “substantial similarity,” which helps to illustrate to a degree.
An example might help illustrate: I really love the guitar work of Marc Ribot in Tom Waits’ Rain Dogs. Were I to try and create that same over-driven Telecaster flamenco-infused soloing in my own song, I am “copying” Ribot but my copying is not so substantial as to be infringement (I think.). However, as I start to appropriate more – say the notes of the solo or the lyrics of the song or even the chord changes and tempo – this might start to feel more like infringement.
Were Ribot to sue me, he would first either have to prove that I copied his work (I think this blog post might be a good piece of evidence to start with) or prove through circumstantial evidence that I had access and through expert witnesses that the songs are so strikingly similar that I could not have come up with it without copying, and then persuade the jury that my copying was so substantial that it interferes with his monopoly conferred by copyright. Market harm or other data may be introduced as evidence here to help draw inferences, but ultimately it is for the jury, and not experts, to decide.
So, to artificially draw up some parameters here as a court might, the evidence above about chord structure and melody would go to the “access/striking similarity” inference of copying, and is best paired with some other evidence as to the popularity of “If I Could Fly.” (SoundScan has Is There Love in Space?, the album containing this song, as selling around 90,000 copies worldwide, for what it’s worth.) All of this goes to the question of “copying.” To take this copying into the realm of infringement, however, requires a juror (say, you) to listen to both and determine whether the copying is so substantial as to constitute infringement. Naturally, this is subject to dispute.
Hello again. I’ve been writing a lot since my last post, but no draft has quite percolated up to postworthy. One or two of them will soon. For now, I want to quickly re-post Universal Hub’s video of a man paying tribute to Senator Kennedy as his motorcade passed the Roxbury Crossing station on Mission Hill:
Thanks to UHub for posting this and Steve McCarthy for capturing this moment. A Boston historian could spill gallons of ink on the imagery and subtext here, but I’d rather let the video speak for itself.
Sorry for the unannounced hibernation here over the past few weeks. I was finishing my work, taking a vacation, and moving my life back down to DC for my 2L year. I don’t have much time to write, but I wanted to post this sign up a little memento from my summer in Cambridge:
“Violators will be towed perfunctorily.” Only in Cambridge would you see an SAT word on a parking sign. I’m going to miss the place.
(waveform of the “Amen Break”)
