It’s the DOJ ruling on consent decrees, and I feel fine

There has been a lot of ink spilled over the recent DOJ ruling regarding the ASCAP and BMI consent decrees. I’d like to go into it in depth.

If you want to dive right in, you could do worse than to read the many, many comment submissions on the DOJ’s website. In fact, I sent one in myself (PDF).

But as an introduction, I’d like to describe the consent decrees themselves, and briefly go into why they exist. Continue reading

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My comments about the DMCA

So, today I just sent some comments to the U.S. Copyright Office regarding issues with the DMCA, and how to fix them. I used the form at takedownabuse.org in order to do it.

Yes, I know the deadline passed over a week ago. (It’s been a busy month.) I fully expect the comment to be ignored. But supposedly the takedownabuse.org folks are turning late submissions into a petition, so who knows, maybe it will make a small difference.

So, without further ado, here is the comment. Continue reading

Legal Analysis of the SiriusXM Loss in New York

First, a disclaimer: I am not a lawyer, nor am I even studying to be one. None of this should be considered any kind of legal advice. I’m just a guy who likes copyright law, and due to the magic of the Internet, I am able to actually read the various court cases. I suggest that you do the same, so I’ve included links to them in this story.

Now, about that. State court rulings, especially below the appeals court level, are still relatively hard to find. The only source I could get for many of these cases comes from a site called Casetext. While they make the entire texts of the rulings available, after a few minutes, an overlay pops up asking you to register, and it won’t let you read the rest of the text until you do. Refreshing the page will give you another couple of minutes. This annoys me as much as it annoys you, and if I find another site that has the rulings, I’ll update the links.

A couple of days ago, SiriusXM once again lost to Flo & Eddie, former band members of The Turtles, and current holders of the band’s sound recordings. I posted an article about it called SiriusXM loses to Turtles again, this time in New York. At that point, I didn’t have the time to go through the entire ruling. But I have now, and boy, is it a doozy.

Unsurprisingly, I don’t think this case was correctly decided. In this article, I’ll analyze the ruling, and show why I think it was wrong. But be forewarned, there is a lot of legalese to go through, and a lot it involves copyright concepts that are fairly obscure. Nonetheless, it is a fairly significant ruling (more than the California case), so it’s well worth reading if you’re a copyright wonk like me.
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What Type Of Right?

When people use the word “right,” they often mean drastically different things. For example, the right to free speech is very different from the right to make a right turn at a red light, and both are different from the right to receive a public education. Talking about rights often enters the intersection of jurisprudence and ethics, so people have been discussing this for a long time.

In this article, I’m going to explain the various types of rights, and then relate them to copyright law.

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Statutory royalties prevent monopolies, not “takings”

In a recent post on The Trichordist, user “thetrichordist” (it’s not clear who that actually is) posted an article called Pre-72 Red Herrings from Pandora’s Chris Harrison (and that’s not the IPO kind). There are several things that are ridiculous about that article, but I’d like to focus on one thing in particular.

In the article, the writer says:

a statutory royalty […] is actually fair compensation for rights the law takes away from artists and copyright owners in the compulsory license that is necessary to avoid a “taking” under the 5th Amendment[.]

To be blunt, this is utter and complete horseshit. Statutory royalties are not there to prevent “takings,” because the statutory royalties were a condition of granting the rights in the first place. There was literally nothing to “take.”

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Normative Views On Copyright

When someone says that someone else is “against copyright,” they are usually making a meaningless statement. If they simply mean “one who is against the current copyright laws,” then almost everyone is “against copyright.” If that were the case, then organizations like the RIAA, MPAA, or ASCAP are the ones who are most “against copyright,” since they are the ones who are the most active in lobbying Congress to promote changes to copyright laws.

That is pretty clearly absurd. What the accuser usually means is “they hold views on copyright that are not mine.” And because the implication is that copyright is ethical, the people making this statement do nothing but make an ad hominem attack. It holds no value in any rational discussion.

Instead, we must use some kind of terminology that captures both one’s own views, and the views of the opposing speaker. Only then can we even start to have any kind of dialog at all. Obviously, people have a wide variety of opinions on copyright law (when they have them at all). No single category, or set of categories, could possibly capture the nuances of the viewpoint held by any single person, or even of any single organization. Even so, copyright viewpoints generally fall into specific categories. This is because they hold common normative views about the nature of copyright itself.

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