Copy Grounds

This semester we read selections from one of my favorite books on the pitfalls of theorizing of intellectual property–James Boyle’s Shamans, Software, & Spleens: Law and the Construction of the Information Society. Drawing on examples from a diverse range of topics including genetics, fiduciary trust, and artificial intelligence, Boyle demonstrates how classical liberal theory attempts to resolve the tensions between public and private spheres through an appeal to romantic notions of authorship. James Boyle is currently the William Neal Reynolds Professor of Law and the co-founder of the Center for the Study of the Public Domain at Duke Law School. We were delighted to have him answer a handful of student questions and his responses are featured here.

Copygrounds: Do you think contemporary technological developments and social practices have devalued the notion of individual authorship to a significant degree? That is to say, does the emergence of the Internet, “remix culture”, file-sharing, and other collaborative systems signal a departure from romantic notions of authorship? continue reading…

Adrian Johns’s Piracy: The intellectual property wars from Gutenberg to Gates goes a long way toward contextualizing contemporary legal battles over copyright in the digital age. His research provides us with a detailed and insightful history of the debates surrounding intellectual property. Adrian’s work has been invaluable to my own understanding of the relationship between technological development and intellectual property law. We were very fortunate this semester to have Adrian answer a handful of student questions after having read a selection from his book.

Copygrounds: Do you feel there is too much emphasis on economic incentive in contemporary U.S. copyright law? When it comes to the topic of how to reform copyright law a major concern among the students in this class (many of whom are aspiring filmmakers, artists, and game designers) is the potential loss of control over their work and their ability to profit from it. Does the expansive scope and duration of existing copyright protection serve the interests of our aspiring content producers?

Adrian Johns: In some ways there is clearly too much emphasis on economic incentive in the current legal structure – although one could also argue, I think convincingly, that the problem is not over-emphasis as simply a mistaken notion of where the incentive lies. The grossest example is the Sonny Bono Act, which extended the term of copyright protection and attracted the unsuccessful challenge of Eldred vs. Ashcroft. continue reading…

I don’t mean to be overly sentimental but I am especially proud of my students this semester. They are all awesome and I can’t wait to see how much trouble they get into in the years ahead. This post includes a sampling of the various media projects they produced during the spring semester. There were more but some technical glitches prevented me from posting everything. Hopefully I will get some more of them posted during the summer break. Below you will find video games, documentaries, mashups and remixes, short films, and 3D models and animations—all produced by students from our Introduction to Digital Media course. Enjoy!

First up is Melody Bolton’s Hipster Rex, a video game using Melody’s own hand drawn art and 2D Flash animation. Think of it as an avatar builder at the outset of some groovy MMO. Click the dino to check it out!

Next we have a beautifully done stop motion video put together by Olivia Debeck. continue reading…

Jessica Litman’s book, Digital Copyright, was among the first books I read on the subject of intellectual property. Her book provides a fascinating history and critique of the process of drafting copyright legislation in the United States. I consider it a must-read for anyone seeking to familiarize themselves with U.S. copyright law and the challenges presented by recent technological developments. So I was very pleased when Professor Litman agreed to answer some of our questions. This semester we are reading her article entitled Creative Reading. Professor Litman is currently  the John F. Nickoll Professor of Law at the University of Michigan Law School. She is an expert on copyright and we are privileged to have her join our discussion.

Copygrounds: What is the road to copyright reform? In other words, is a statutory reversal of either the expanded duration or scope of copyright even possible? Or conversely, would it be possible to expand fair use provisions through an amendment to the Copyright Act?

Jessica Litman: I think the most plausible road to copyright reform is that the current beneficiaries will seek reform of provisions they are finding unworkable, and proponents of countervailing reforms will take the opportunity to attach their proposals to the legislation.  Thus, Congress enacted the provision allowing bars and restaurants to play radio and television without licenses from ASCAP and continue reading…

Alright it has taken me a while but here they are. I will be showcasing student media projects from last semester in this post as I get them compressed and ready.
Group 4 shows us how it’s done with a behind-the-scenes look at a community of video game designers right here at The University of Texas. Group 5 pokes fun at file-sharers, industry hitmen, and recording artists. No one is spared. Group 3 lambastes the gaming community by giving us a glimpse of the upcoming action/thriller The Starcraft Kid. Group 1 takes us on a trip down memory lane to revisit old school file-sharing.

Group 4 from copygrounds on Vimeo.

Group 5 from Copygrounds on Vimeo.

Group 3 from Copygrounds on Vimeo.

Group 1 from Copygrounds on Vimeo.

A major objective of Copygrounds is to give students a platform to showcase the digital production skills they have learned over the course of the semester. At the end of the semester this website will host a number of group projects that the students have been working on for some time now. However, not all student media is produced at the crack of the whip. They do it for fun too. The following digital media mashups were produced separately by William Nixon and Jacob Weiss.

William wanted to show how borrowing a little from a lot of different sources can create something completely different while celebrating the original material in a brand new way.

Jacob worked on this song on and off for several months. It’s an experiment in sampling various forms of audio including bits from Alice in Wonderland and original material.

We were fortunate to get a chance to speak with New York attorney Ray Beckerman recently on the topic of P2P litigation. Mr. Beckerman is well known for his analysis and commentary on the RIAA litigation campaign and was nice enough to answer some of our questions.

Copygrounds: In both the Tenenbaum and Thomas-Rasset cases the statutory damages have been lowered—though for different reasons. Why did the judges employ different legal reasoning to arrive at similar results? What are the differences in the cases? And does this prevent the cases from being joined and sent to the Supreme Court?

Ray Beckerman: Neither judge provided satisfactory reasoning consistent with the law. Neither thought it through correctly. Judge Davis declined to decide the constitutional issue at all, for reasons continue reading…

Copygrounds: What do you think would happen if the right to active participation was extended to areas of cultural or informational production outside of copyright law? In other words, should people be allowed to actively participate to some extent in areas of production normally covered by trademark or patent law? Is it desirable to allow people to remix brands, reverse engineer and re-distribute software, etc?

Henry Jenkins: Not only is it reasonable, but it may also be desirable from the point of view of the rights holders. Eric Von Hipple in the Sloan School of Business at MIT has explored what he calls “lead users.” Lead users are early adopters of new products but also because they are on the cutting edge, they are also often adapters of those products. They adjust them to better serve their own needs which are sometimes generalizable to other users and sometimes highly specialized. Von Hipple advises companies to allow certain space of consumer experimentation and adjustments so that companies can monitor what they do with their products, identifying unexpected uses and unidentified bugs in their production. Some companies have institutionalized such practices, working with their most dedicated consumers to generate ideas that ultimately get translated into new products. Lego is a company very famous for such practices. Brands are discovering that allowing more free play with their once sacred icons is in fact generating greater public interest and also inspiring new continue reading…

We were thrilled to have filmmaker Andrew Shapter join us last week for a conversation about the state of the music industry. If you have not seen Andrew’s documentary film on the music business Before the Music Dies you are missing out. I cannot say enough good things about this film. It includes a number of great interviews with some of the best recording artists around and lots of incredible concert footage. Our discussion with Andrew covered a range of topics including the music business, p2p file sharing, and his experiences as a documentary filmmaker. Andrew also shared with us some details about his upcoming narrative feature The Teller and the Truth. Check out an awesome music video for the movie here.

Andrew Shapter Talks with Copygrounds from copygrounds on Vimeo.

The copyright law allows a copyright owner to elect one of two ways to collect damages when their copyrights have been infringed.  They can chose to receive either actual damages or statutory damages.  The reason that Congress included a statutory damage regime in copyright law is because calculating the actual damages incurred as a result of copyright infringement is often very difficult to calculate.  Actual damages include both the value of lost sales or license fees, as well as any profit the infringer may have reaped.  One can well imagine in the context of internet infringement that it is often impossible to determine whether an individual sent out one copy of an infringing recording or ten thousand.  If you cannot measure the number of copies distributed, it is very difficult to calculate actual damages.

Statutory damages are currently set by copyright law at a minimum of $750 per work infringed up to $30,000.  And, if the infringement is found to be willful, the ceiling goes up to $150,000.  In certain situations, a defendant can seek to be deemed “an innocent infringer” and have the floor decreased from $750 to $200 per work infringed.  Over the years, the law has developed a number of factors that should be considered in determining what the statutory damages should be, such as: the value of the work infringed, the harm caused, the benefit to the defendant, the need for deterrence, and the willfulness of the defendant’s infringement.  It is left to a jury to decide how to balance these factors and what damages to assess.

When the record industry brought cases against P2P infringers, the defendants were frequently caught distributing thousands of recordings.  Instead of pursuing the defendants for each and every infringement, the record companies would sue on anywhere from roughly 10 to 30 recordings.   The record companies would then offer to settle the case early on in the litigation before they incurred significant litigation fees.  The amounts of the settlement were generally around $3000 to $5000.  If a defendant demonstrated that they were financially incapable of paying, the record companies would consider their financial circumstances to construct a settlement that suited that particular defendant.  (Of course, this was a difficult process since everyone claimed to be impecunious.)  Looking at the numbers, one can easily calculate that a $4000 settlement would always be less than the minimum statutory damages under the law.

I think it is pretty clear that for many people merely telling them not to infringe without more will not work.   People are told not to infringe all the time, but until there is some risk, whether it be from a lawsuit, academic probation or losing one’s ISP connectivity, many individuals will continue to engage in P2P infringement.

If the only damages the record companies sought in settlement was the cost of a legitimate download of the recordings that were infringed, everybody would simply download music for free hoping not to be caught.  If they were caught, they would have the comfort of knowing that they could settle for the same cost that they would have incurred had they purchased the recordings legitimately in the first place.  (Also, remember, these individual s were caught distributing the recordings as well as downloading them.  So, assessing a cost pegged at a single download would not even come close to approximating the actual damage they had inflicted.)  In order to have a deterrent effect, settlements have to be higher than the value of a download.   One can have a fair debate whether individuals would be deterred if the settlements were $500, $5000 or $50,000.  The record companies thought that the figure of $3000 to $5000 was in the right range.

If a defendant, like Joel Tenenbaum or Jamie Thomas, refused to settle, the record companies would generally follow the case through to its conclusion.  In those cases, the amount of damages to be assessed was left entirely to the jury.  The record companies did not ask for any particular amount or award.  The Judge merely instructed the jury on what the statutory damage range was.  Interestingly, in speaking to some of the jurors afterwards, they often indicated that within the jury room, there were some jurors who wanted the judgments to be higher and some who wanted them to be lower.

Stay tuned for more soon.