MA GOP’s lame ad and James Taylor’s copyright: upon further analysis, it’s still not “fair use”

I posted last night about the MA GOP’s silly ad that may have committed a non-silly violation of federal copyright law.  A vigorous discussion ensued, with EaBo and Dan Kennedy taking the view that using a James Taylor song as the background music to an ad attacking Deval Patrick, Barack Obama, and (says EaBo) today’s rally at which all three are appearing, should constitute “fair use” as a “parody.”

Turns out, there actually is some law on this question.  My bottom line: based on existing law, this is an interesting case, but while it’s not a slam-dunk for either side, the better argument is that the ad does not constitute “fair use.”  To the flip!


“Parody” that uses copyrighted material can, under some circumstances, constitute “fair use.”  Here’s the Supreme Court outlining this general principle in the famous 2 Live Crew case, known formally as Campbell v. Acuff Rose Music, Inc. (emphasis mine).

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing….

The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use…. The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and non parodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.

So that’s the basic framework.  In that case, the Court went on to find that 2 Live Crew’s work, which drew upon but substantially altered Roy Orbison’s song “Oh, Pretty Woman,” was indeed a parody of the original Orbison song, and that several of the factors weighed in favor of “fair use” (it did not finally resolve the case, however).

Now, how does this framework apply to our ad?  Well, first of all, it’s pretty clear that the ad is not actually a “parody” of Taylor’s copyrighted song.  The ad simply uses a lengthy excerpt from the song verbatim; it is not altered or rewritten in any respect.  Rather, taking a view favorable to the MA GOP, what the ad is presumably trying to do is poke fun at James Taylor himself, perhaps as a “loony liberal” who likes Democrats, rather than at his work.

Is that a “parody”?  In some cases, yes – which of course doesn’t actually answer the “fair use” question.  The only court decision I’ve been able to find that concerns the use of copyrighted songs in political ads came down in June over the use of two of Don Henley’s songs in ads for a Republican CA-Sen candidate named Chuck DeVore.  That judge considered the question of lampooning the messenger rather than the message, and wrote:

In many cases, the most effective tool of ridiculing a public figure – a time-honored, First Amendment activity – is through that person’s own creations. This is particularly true where a person’s fame derives from the person’s expressive works, as the case often is with artists, musicians, authors, and the like. The First Amendment demands that these public figures be open to ridicule, just as their works should be.

OK, so if an ad is genuinely holding the creator of a copyrighted work up to some sort of criticism (as opposed to using the work to make a different point), then it may qualify as a “parody,” which may or may not mean it constitutes “fair use.”  

So what happened in the Henley case?  The case concerned two political ads, one called “Tax” and one called “November.”  In both cases, DeVore took songs by Henley (“All she wants to do is dance” and “The boys of summer,” respectively), wrote new lyrics, and recorded the new lyrics (sung by a DeVore staffer) over a karaoke version of the music of the original songs.  According to the opinion, in “Tax” the song was used to make a point unrelated to Henley himself; it criticized Barbara Boxer and policies she supports.  In “November,” the song was mostly anti-Obama but also contained some elements of criticism of Henley himself as a (perhaps disillusioned) Obama supporter.

The opinion is quite long, and I’m not going to go through it point by point here.  The bottom-line assessments, though, are I think quite instructive for the MA GOP ad.

The fair use analysis involves a delicate balancing of the four factors with an eye towards the purposes of copyright. “The doctrine has been said to be ‘so flexible as virtually to defy definition.’” The case-by-case analysis resists bright-line determinations and the resulting decisions inevitably represent a sort of rough justice.

That said, the Defendants’ song “Tax” does not present a difficult question. The song is pure satire which fails to take aim at the original or its author. It therefore lacks justification to borrow from “Dance,” which, as a musical composition, lies at the core of copyright protection. And it does far more than borrow from “Dance” – it appropriates the entire melody, rhyme scheme, syntax, and a majority of the lyrics. Defendants have also failed to show that widespread use of this and similar satirical songs would not affect either the market for the original or potential derivatives. “Tax” is clearly not fair use.

“November,” on the hand, presents a closer question, assuming that targeting the author is a legitimate parodic purpose. Although it primarily targets Obama, it does, in part, lampoon Henley as an Obama supporter. It may thus contain some parodic element and would be justified in appropriating some of “Summer.” However, “November” goes far beyond what is necessary to conjure up Henley to hold him up to ridicule. As with “Tax,” “November” copies the melody, rhyme, syntax, and most of the lyrics. Given the extent of the copying, Defendants have not met their burden of demonstrating the absence of market impact. Although the Court finds this to be a closer question than “Tax,” the Defendants have not met their burden of demonstrating that “November” constitutes fair use.

Let’s give the MA GOP the maximum benefit of the doubt, and assume that part of the purpose of the ad is to lampoon James Taylor as a Barack- and Deval-loving moonbat, so that it falls into the category of “parody” rather than “satire.”  I still think that the analysis of the Henley court – which seems quite solid to me – leads to a conclusion that the MA GOP’s ad is not “fair use.”

First, James Taylor is not the only, or even the principal, target of the ad.  The ad’s principal target is without question Deval Patrick – that’s what the copy says, that’s what the photographs say, and that’s what the MA GOP cares about.  Secondarily, President Obama is a target of the ad – there are lots of photos of him, including him with Martha Coakley, and some of the copy (e.g. the stimulus numbers) relate to him.  James Taylor is a minor target at best; he is never directly mentioned, and the viewer is left to infer the relationship between Taylor, Obama, and Patrick.  The Henley court’s analysis of the “November” ad seems precisely analogous in this respect:

Thus, assuming the validity of “parody-of-the-author,” the Court finds that the parodic theme – the lampooning of Henley himself- is reasonably perceptible. It is, however, a relatively minor element of the main satirical purpose of the song
- targeting Obama and his supporters.

Now, it is possible to argue that because this ad was released on the eve of a rally at which Obama, Patrick, and Taylor were all appearing, there’s a stronger parodic theme than in the Henley situation.  I think that argument has some force – but not much.  The problem with it is that it assumes a lot of knowledge on the part of the viewer.  A lot of people know about James Taylor and his music; some subset of those, probably a fairly small one, know that he is a liberal who tends to support Democrats; of those, probably quite a small subset know that he lives in Massachusetts and supports Deval Patrick; and of those, an even smaller subset knows that he was present at an Obama/Patrick rally on October 16, 2010.  It’s only to that final subset that this additional parodic element could possibly be apparent, yet there’s theoretically no limit to the number of people who could view this ad, which is of course posted on YouTube and is therefore accessible worldwide.  So I think it’s fair to say that the parodic aspect of the MA GOP’s ad is slightly – but only slightly – more prominent than DeVore’s “November” ad.

However, other factors in the MA GOP ad make it much less likely that it constitutes “fair use.”  Perhaps most obviously, the song itself is not altered at all.  Here’s what the Henley court said about the “amount and substantiality of the portion used” factor in the “fair use” analysis.

In the parody context, the third factor turns on “the persuasiveness of a parodist’s justification for the particular copying done, … [;] the extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586….

It is undisputed that both “November” and “Tax” borrow heavily from the respective originals. The Defendants used karaoke tracks of each song as background and Hart supplied vocals. The melodies remain identical, as do the rhyme scheme and syntax. While the Defendants changed some of the lyrics, 65% of the “Summer” lyrics and 74.7% of the “Dance” lyrics were copied verbatim. This factor turns on whether such extensive copying was justified….

As discussed above, “November” may have some parodic element – it pokes fun of Henley as a disillusioned Obama supporter. It may therefore be justified in using at least some of “Summer” in order to evoke Henley’s image. However, this does not necessarily justify the extent to which “November” copies. In Campbell, the Court found that the defendant’s song commented on the naivete of the original work. The defendants’ song borrowed the opening riff and the first line of the original, but substantially changed the lyrics, added new musical elements, and altered the beat of the original. Nevertheless, the Court remanded the case for determination of whether the amount taken – just the opening riff and the opening line – was excessive in relation to the parodic element.

The Defendants’ copying in “November” exceeds that in Campbell, where the Court declined to decide the fair use question despite finding legitimate parodic purpose. Indeed, the amount of the Defendants’ copying goes far beyond anything that has been found to be fair use in the parody context… Indeed, the Defendants’ appropriation approaches or exceeds the amounts borrowed in many cases where courts rejected the fair use defense….

The Defendants’ justification for the copying of “Summer” is the necessity of evoking Henley. While this may allow for some appropriation, the Court finds that the amount borrowed goes far beyond that reasonably necessary to conjure up Henley. The Defendants did not take a portion of the song or alter the melody – they took virtually everything…. The Defendants argue that a lesser amount, a 30-second snippet perhaps, would have diluted the parody’s impact and they would have been unable to “convey all of the political and parodic points they wished to make.” However, the parodic element, if any, of “November” is its lampooning of Henley, not of Obama, Pelosi, or their supporters generally. Using Henley’s music to make those political points is not justified under Campbell.

This reasoning, it seems to me, pretty much puts the final nail in the coffin of the MA GOP’s “fair use” claim.  In the MA GOP’s ad, an unaltered excerpt from Taylor’s song runs throughout the entire 1-minute spot.  The Henley court noted that “[t]he Defendants did not take a portion of the song or alter the melody – they took virtually everything.”  Here, of course, the MA GOP did take everything.  It’s pretty much impossible to argue that such a lengthy, unadulterated excerpt was needed to “conjure up” James Taylor – Taylor’s voice is readily recognizable and is very familiar to millions; a much briefer excerpt would have sufficed.  There is no doubt that the copying in the MA GOP’s ad far exceeds what even DeVore did, and, it seems to me, that fact more than compensates for any possibility of the MA GOP’s ad having slightly more of a “parodic” quality than did DeVore’s “November” ad.

This is a long post – necessarily so, because the “fair use” doctrine is fairly complicated and consists of a multi-factor balancing test.  I thought it was worth doing, both because I think “fair use” is an interesting subject, especially in the context of political advertising, and because I think the MA GOP has stepped over the line in this case.  

I call on the MA GOP either to take down the ad, or to secure a proper license from James Taylor – precisely as the national GOP and Chuck DeVore said they would do following their settlements with Jackson Browne and Don Henley.

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50 Comments . Leave a comment below.
  1. Surely they already have permission from the copyright holder

    I know the Massachusetts GOP is dysfunctional, vituperative, hateful, and vicious.

    Surely, though, they acquired (or paid for) permission from the copyright holder to use this music:

    Copyright © 1971 by Colgems EMI Music (ASCAP). All Rights Reserved.

    If not, they are truly insane (in addition to all of the above). I mean really, given the firestorm of horribly negative publicity they are already in the middle of, do they think that nobody will care about their misuse of a classic like this, even if infringement claims are ambiguous?

    Surely step one of whatever approval process this rubbish went through was to confirm their legal right to use the material.

    I really can't comprehend why this lynch mob seems so intent on trumpeting their total and flagrant disregard for every standard of civility, decency, morality, and good taste — never mind legality.

    Do they really have such contempt for Massachusetts voters that they think people will respond positively to this?

  2. On a side note, James Taylor is notorious for protecting his copyrights.

    He, alone, is one of the big reasons that most slightly-bigger-than-a-clamshack businesses out here in the Berkshires, Taylor's stomping grounds, have an ASCAP approved music service. He has told more than one business that their "commercial use" of a stereo system playing music that was purchased for "consumer use" was illegal.  

    The story goes that he even got upset with his dentist who was playing a JT cd in the office when Taylor showed up for an appointment.

    And, you are exactly right on the "fair use" parody stuff. A campaign ad would not fit the definition.

    • There is an alternative...

      just play stuff which isn't part of ASCAP... there's plenty of indie bands who have released music with a creative commons type copyright, and they welcome folks to play their music freely...

    • I really think you should

      provide some links with this...

      • Consider me a direct source.

        The dentist office tale is, indeed, second hand, but I can personally attest that Mr. Taylor has expressed such displeasure to Great Barrington merchants.

        Even my current company in Williamstown has satellite music on the retail floor because our GM's previous employer in South County was "reminded" about copyright laws by associates of Mr. Taylor.

        Take it or leave it. Mr. Taylor is correct to be protective. A business cannot use his product to make money without acquiring the proper license.  

  3. Three points

    1. David, you've done your research, and I'm persuaded that you've nailed it. It looks like the key is that the Republicans in this case used copyrighted material to poke fun at someone other than the copyright-holder.

    2. To repeat - Carole King, not James Taylor, wrote "You've Got a Friend." Taylor can sue on the basis of his performance copyright, but King probably has the stronger claim.

    3. Rather than calling on the Republicans to take the ad down, I'd call on King and Taylor to leave well enough alone. This is still political speech, and it would be a shame for anyone to invoke copyright law in a way that stifles the conversation.

    • Horse feathers

      "Leave well enough alone"?

      This ad flagrantly steals James Taylor's intellectual property (it is, after all, his voice, not Carole King's, that they chose to use).

      I guess that when looters "liberated" merchandise from broken storefronts during the long hot summers of the late sixties (after the MLK assassination), that was "political" speech as well, right?

      Whoever bought, produced and distributed this garbage is, simply, scum. Defend them if you will, but then don't get your panties in a wad when I call you scum as well for attempting this lame defense of it.

      • Ha

        I'm certainly not going to get my panties in a wad over someone who doesn't post under his real name.

        • Because it's not the idea, the logic, the rhetoric that's important

          it's the name of the meatbag making the claim?

          notsomuchkthx.

        • Silly ad-hominem

          I have no idea who "dkennedy" claims to be. You offer comments under a handle that could be anybody. You offer no biographical information to identify yourself.

          You might be "David Kennedy" of Harvard. You might be "Danny Kennedy" of "Sungevity" — blogger on the San Francisco Chronicle site. You might be "Dave Kennedy", owner of "D. Kennedy Construction", in the Seattle area. You might be the "David Kennedy" of DKennedy.org, a self-described "Book-log" — and any combination of those "DKennedy" identities might be the same person.

          You might also be somebody posing as any of the above. You might be somebody who hacked into an account set up by any of the above.

          Here, you are the "dkennedy" who blogs on BMG — no more, no less, and no more or less authentic than the "BrooklineTom" who blogs here, the "stomv", the "liveandletlive", the "MiracleGirl", the "JohnD", or even the "lasthorseman" who blog here.

          The point of this medium is that you are whomever the sum total of your comments here make you.

          Not all of us are in a professional or personal situation where posting under our "real name" is possible or preferable. Some of us have spent enough time using the web to have insight into the strengths, weaknesses, and consequences (both intended and unintended) if using our real name.

          If you have the journalistic insight that you apparently claim, then you should also have some insight into the many and deep issues involving pseudonyms, sources, and personal identity.

          Disagree with me as forcefully as you like, that's what a place like this is for. But please spare all of us the silly ad hominem snark.

          • I am Dan Kennedy

            I blog at Media Nation. Here's my bio:

            http://www.dankennedy.net/about/

            You are BrooklineTom. You call people "scum" without telling us who you are.

            • So be it

              The often scathing commentary of "Mark Twain" is not diminished because the author was actually Samuel Clemens.

              I wrote:

              Whoever bought, produced and distributed this garbage is, simply, scum. Defend them if you will, but then don't get your panties in a wad when I call you scum as well for attempting this lame defense of it.

              I don't care what blog you write, where you teach, or what you teach.

              I wrote that "whoever bought, produced and distributed this garbage is scum." I stand by those words.

              When you defend scum, you become scum.

              That remains true whoever you are and whoever I am.

              • An excellent example

                Because everyone knew that Mark Twain was Samuel Clemens. It was a marketing maneuver, not an attempt to hide his identity. I think Dan Gillmor puts it well:

                "No one can dispute that we have a category of human slime that uses online anonymity (or, usually more accurately, pseudonymity) to attack other people. These people, classic cowards, hide behind the virtual bushes to take potshots, and they do so with the ugliest kind of satisfaction."

                http://www.guardian.co.uk/comm...

                • Everyone knew?

                  An excellent example Because everyone knew that Mark Twain was Samuel Clemens.

                  Everyone eventually knew, but initially Mark Twain's writing was anonymous.  Twain published "1601" in 1880 and it wasn't until 5 or 6 years later that Samuel Clements confirmed he was the author.

                  Maybe BrooklinTom will out himself someday.

          • DK/Dan - after the sturm und drang over real names on Media Nation, this is TOO FUNNY! <:~)

        • What a slimy attack

          Really now, I had a lot more respect for you before you resorted to this type of attack. There are many legitimate reasons to post under a pseudonym, or else the owners of this site would not have allowed it.

          Tom's points are no less valid because he doesn't post under his name.

          • You raise a fair point

            Kevin: Point taken, and I do understand that there are reasons not to use one's real name. I also realize that different online communities have different rules. I've banished anonymous comments from Media Nation, but obviously they are alive and well at Blue Mass. Group. But it's beneath contempt to level personal attacks behind a veil of anonymity or pseudonymity.

            • Sadly, you still don't understand

              The use of user names/pseudonyms is an old tradition on the internet and dates well before the introduction of the world-wide-web. Your insistence that there is something wrong with this is greatly at odds with the prevailing online culture.

              The fact is that for most of us, the difference between posting under our real name and under a pseudonym won't make any difference to you unless you are planning to stalk one of us. What really is the difference between BrooklineTom and Tom Smith unless you happen to know who Tom Smith is? Furthermore, for someone like BrooklineTom who posts here frequently, I am sure his online reputation is no less valuable than his offline reputation.

              I do think it is reprehensible to create throw away sock puppet accounts purely for the purpose of launching personal attacks, but that was not the case here.

              Tom may have gone overboard, but responding with a personal attack based on his decision not to post under his full name was childish on your part.

              • I understand and disagree

                Kevin, I go back to Usenet and Gopher. I've been reading anonymous posts since the '80s. I've been blogging since 2002, and I only banned anonymous comments in the last year. At least among news organizations, we are seeing a move away from anonymity, and it's about time.

                There is nothing more childish than launching a personal attack under the veil of anonymity. Please take another look at the excerpt I posted from Dan Gillmor. As I'm sure you know, he's a leading online pioneer, the author of "We the Media." And he's had it with anonymity.

                Howard Owens, the publisher of the Batavian and another online pioneer, wrote an interesting post about why he's banned anonymous comments. It is well worth reading:

                http://www.howardowens.com/nod...

                I will concede that the online culture is moving away from anonymity only here and there. But I did not return to BMG expecting to change people's minds about anonymity. After all, I'm engaging with you.

                My only intention was to call out one pseudonymous commenter who was launching personal attacks without having the guts to identify himself. That's never acceptable. I'm not sure why you think I attacked him personally. I would argue that it's not even possible, since I don't know who he is.

                • Identity is irrelevant

                  What would change about our exchange if I posted under my real name?

                  Would you feel any less attacked? I doubt it. Would my comments change? No.

                  Feelings — yours and mine — are as real as anything else we debate here. I feel that whoever was responsible for this ad is scum. That's a feeling. It's genuine. It's real. I feel that when you defend it, it lowers you to their level. That is also real. I am allowed to do that (it comes along with "freedom of expression"), and I reject your unilateral assertion that my choice to use a pseudonym is even remotely relevant.

                  So how would your knowledge of my identity change anything?

                  I submit that nothing would change. The essence of your posture, therefore, is that you simply want me to shut up and go away.

                  So I "call out" an allegedly-identified supporter of yet another despicable right-wing attack piece, and you "call out" a pseudonymous commenter who was "launching personal attacks without having the guts to identify himself." Each of us is expressing emotions, and I don't think our respective identities have anything whatsoever to do with that.

    • Totally disagree with point #3

      It's theft.

      Plus, the Republicans have done this stuff time and time again. If they don't get called on it, they're just going to do it again. If they want the damn songs, go get the rights to them. Artists who work their asses off for these things shouldn't have to offer themselves up as sacrificial lambs for people like Charlie Freaking Baker, without so much as someone asking for permission.  

      • It's not theft

        it's copyright infringement.  They aren't the same thing.

        I ain't saying using it without permission or (in some cases) compensation is right (it ain't), just saying that it is neither theft nor piracy, it's infringement.

        • Well,

          if you infringe a copyright, then you are _____ another person's intellectual property.  Fill in the blank.

        • mheh

          I'm not one to argue semantics.  

          • It's more than semantics.

            I own some old cassette tapes, but converting them to mp3 is legal but a pain in the neck.  A workaround: download the mp3s corresponding with the songs on the cassette from the Internet.

            No rational person would suggest that I stole anything -- I own the right to listen to the song, and implicit in that right is the right to convert the cassette to mp3 myself.  If I do that, the artist gets paid once (when I bought the cassette) and all is kosher.  But, if I download the mp3, I've violated copyright, and the MPAA argues that I've cost them $1000s (sometimes 10s or 100s of thousands) in damages.

            Doing so violates copyright, but it is in no way stealing.

            Normally I wouldn't make a big deal out of this, but it is a thread about copyright and fair use after all...

            • You didn't $quot;own$quot; the mp3 file you $quot;stole$quot; under that scenario.

              You only owned the rights to the music you had on the cassette.

              A further example of how I think "stole" applies: Swap "casette" with "VHS" and "mp3" with "DVD" and I don't see much of a difference:

              I own some old VHS tapes, but converting them to DVD is legal but a pain in the neck.  A workaround: download the DVD files corresponding with the movie on the VHS from the Internet.

              No rational person would suggest that I stole anything

              Or would they?

              "Upgrading" as technology improves has often meant that people have had to buy the same things, over and over again, even if they owned a previous version. I'd like to "upgrade" my 03 Honda Civic at this point to another one, but if I hopped on the lot and grabbed a set of the keys and went without paying, that'd be "stealing." Pretty much the same car, just upgraded with newer technology.  Ditto cassette vs. mp3. And like switching those two means of listening to music, I could just decide to fix up the car (ie transfer the song from tape to mp3), but it would be a bitch and would never be quite as good as getting the brand new one (and transferring the cassette to mp3 would never be as good as just buying the mp3).

              ----

              Now, on a side note, you can gain the satisfaction of having baited me into a comment after I essentially said I wouldn't comment further :P  

              • I completely disagree

                You only owned the rights to the music you had on the cassette.

                SCOTUS disagrees.  According to SCOTUS, I own two distinct things. 1.  A piece of plastic and magnetic tape. 2.  The right to listen to (or let someone else independently listen to) one version of the content of that at a time.  This means that I can (a) space-shift the content.  I can copy it from one medium (cassette) to another (mp3) if I like, without having to destroy the old copy.  I can also (b) lend it out.  The caveat: no matter how many copies there are, I must take reasonable steps to ensure that only one copy is being listened to at once.

                Now, at the risk of being accused of slight-of-hand, lets say I had a CD instead of cassette.  The reason: cassettes are lossy media; CDs are not.  That is, the quality of a cassette degrades with use, whereas a CD does not.  A CD is a series of 1s and 0s; I could rip that on a computer to FLAC, which is perfectly lossless -- the FLAC (similar to mp3, just a different codec) is exactly identical to the CD.  Not close, not similar, but exactly the same.  It's a long series of 1s and 0s, no more, no less.

                So lets say I have a CD.  I can do two things: 1.  I can put it in my computer, rip it to FLAC, and have a file called stomv_song. 2.  I can download the song from the Interwebs, and have a file called shawn_song.

                Now, if I put those two files next to each other, it is actually impossible to tell them apart.  They are the identical string of 1s and 0s.  Absolutely identical.

                According to copyright law, owning the CD and doing (1) is legal, but owning the CD and doing (2) is not.  Now, in both cases the artist was paid (once) for the CD I own.  In both cases, I end up with a FLAC copy which is identical.  In neither case was anything taken from anyone else against his or her will.

                In no way could a rational person call (2) stealing.  Nobody has been deprived of anything.

                I'd like to "upgrade" my 03 Honda Civic at this point to another one, but if I hopped on the lot and grabbed a set of the keys and went without paying, that'd be "stealing."

                It wouldn't be "stealing," it would be stealing.  Your act takes something away from somebody else; you are depriving someone else of their own property.

                Ditto cassette vs. mp3.

                Absolutely not.  In this case, the artist isn't deprived of anything since the owner of the cassette has the legal right to space shift.  The upgrade path isn't a legal requirement, it is merely one of convenience.  Now, as a caveat, if the DVD contains "bonus features" not found on the VHS or if the CD contains "remixed or remastered" music, there is a problem with downloading, because the newer content isn't the same as the older content.  But, in the cases where the two are the same, copyright law results in this strange result where obtaining the exact same sequence of 1s and 0s two different ways results in a different legal status, despite the fact that the suppliers and consumers of the bits and necessary infrastructure all do so voluntarily.

                In short, meatspace is different from bitspace.  In meatspace, copying isn't free -- you can't wave your magic wand and get another Honda.  In bitspace, copying is free -- the original owner of the bits keeps his bits, and now someone else gets that string of bits too.  To compare meatspace property with strings of bits rarely works for this reason.

    • Shouldn't you stick up for copyrights?

      After all, the profession of journalism, which we know you care deeply about as a professor of the subject, depends on intellectual property law. In the absence of copyright law, indeed, it is hard to see how anyone who writes or produces electronic media of almost any kind (except perhaps for live performances) could make much of a living. Requiring people to pay for books, for example, rather than copying them for free, certainly "stifles the conversation" to some degree. It also allows many authors to make a living.  

      • Saved me ten bucks

        I was planning on buying James Taylor's Greatest Hits album, but now that I have this sample, I don't need to anymore.  Heck, I don't even need to listen to the radio, I can just play this ad over and over.

      • Plenty of folks could still make money...

        I'm not arguing against copyright law in principle, but even without copyright law information with a short useful lifetime would still be profitable.  Even if I'm free to copy the Globe's articles and reprint them, by the time I've done that the value of the article is much lower... so newspapers would likely do as poorly as they're doing now, no worse.  Likewise for weekly free periodicals -- their margins are thin enough and fixed cost high enough that there's not likely room for a copier.

        Oh -- you wrote 'electronic'... fair enough.  Point taken.

        P.S. I can't help but point out that a major flaw of copyright IMO is that it lasts too long.  I'm all for providing incentive for a creator to make earnings; I don't see how it benefits society to ensure that the idea continues earning (and restricting use) after the creator is dead.

      • It's not black or white

        As a commenter points out below, the length of time granted to copyright-holders these days - thanks to ridiculous laws passed by Congress at the behest of Disney and other media corporations - is absolutely ridiculous. Copyright was originally supposed to last for 14 years; it was later extended to 28. Now Congress extends it whenever Disney's copyright on Mickey Mouse is about to expire. Never mind that Walt Disney never could have made "Steamboat Willie" under the copyright laws we have today, as it was itself a derivative work based on other artists' characters.

        I am frankly surprised at how solicitous this left-leaning community is toward corporate-backed copyright extensions that do not serve the purpose of copyright as envisioned by the Founders. Under a 28-year regime, the copyrights on "You've Got a Friend" would have expired about a decade ago.

        Writing not as a lawyer but as a lay person interested in media law, I cannot see how the Republicans' use of "You've Got a Friend" runs afoul of the four-part test used to determine fair use, thought it's admittedly (and deliberately) vague. The test:

        1. Purpose and character. The ad was not made for profit, but for political speech, which receives the highest degree of First Amendment protection. Score one for the Republicans.

        2. Nature of the copyrighted work. Because the song is an expressive work rather than factual, Carole King and James Taylor win this one.

        3. Amount and significance. It's a snippet, not the whole song. Apple posts 30-second snippets on iTunes and refuses to pay copyright-holders. This is 57 seconds.

        4. Impact on the market. This is generally considered to be the most important of the four tests, and the idea that the Republican ad will depress sales of James Taylor's version is laughable.

        Note that none of these tests takes the copyright-holder's feelings into account. It's irrelevant.

        Finally, Bob, you say you're surprised that I take the position I do because I'm a journalist. I'm surprised at what I see here because you're bloggers. Certain media corporations, including the Associated Press and Rupert Murdoch's News Corp., have been trying to crack down on the amount of copyrighted material bloggers can excerpt, even for absolutely legitimate purposes such as commentary.

        As I wrote earlier, I think David has nailed this. But I also think it's a damn shame.

        • FYI: Code of Best Practices in Fair Use for Online Video.

          "Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it. Fair use enables the creation of new culture, and keeps current copyright holders from being private censors," according to the Center for Social Media at American University.

          Code of Best Practices in Fair Use for Online Video.

          "http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/

        • Funny how easy it is to think of political speech one

          disagrees with as "Some ambitious jerks trying to trick the public into handing them a lucrative gig." Thanks for the reminder! :)

        • No, it isn't a snippet.

          For some reason I have 15 seconds stuck in my head as the length of a song that a person can use as fair use.  Apple may just be getting away with 30 sec it because they are an 800 lb gorilla.  But 57 seconds of a 5 min song?  That's way over the line.

          To also reply Jack Gately's meaningless reply below, could you imagine anyone getting away with "quoting" a continuous 20% portion of a popular book and getting away with saying it's fair use?  No way.

          • Length doesn't matter

            So to speak. The law speaks of "substantiality." For instance, the Nation lost when it took a 300-word excerpt from Gerald Ford's book because it was the only part anyone cared about - his pardon of Richard Nixon.

        • I don't think you're going to get very many people to agree

          that copyrights should expire on 28 year old works of art, there's really no public good for it, other than stiffing the person who created their work.

          Now... 80 or 100 years? I'm with ya on that.

          As an aside --

          Certain media corporations, including the Associated Press and Rupert Murdoch's News Corp., have been trying to crack down on the amount of copyrighted material bloggers can excerpt, even for absolutely legitimate purposes such as commentary.

          Quite frankly, I'm more worried about the media's incessant tendency to steal stories from bloggers without giving attribution to whoever broke the story, if it's a blogger. Newspapers do this all the time -- I could even point to at least one personal example with your old paper. Bloggers, quite frankly, would benefit from more regulation over copyright issues than less.  

        • One last comment

          As I wrote earlier, I think David has nailed this. But I also think it's a damn shame.

          That really gives me the Bill O'Reilly 'Muslims have the right to build the mosque, but is it the wise thing to do?' shivers.

          Bottom line is there's too much potential for abuse of hard-working artists, most of whom make a meager-to-moderate living (even some of the better known ones, who get sucked into terrible contracts that they can't get out of), if we retreat on copyright issues, including political ads.  

          • No, no, no

            Ryan, fair use is a very hazy area. David has conceded that he might be wrong. I am not saying the Republicans are breaking the law and should be given a pass. I'm saying that, David's good work notwithstanding, I think there's a case to be made that they did not break the law.

            And good Lord, no one is being abused after 28 years. A period of 80 to 100 years is the most extreme position pushed by the media conglomerates. Is that where you really want to come down?

            • media conglomerates supported by the GOP

              The best way to get a bad law repealed is to enforce it strictly, and I would love to see this enforced strictly against the GOP.

            • $quot;David has conceded that he might be wrong.$quot;

              Heh.  Well, in the sense that the Supreme Court might reach a different conclusion, sure, that's a given.  But I don't agree with you that this situation should constitute fair use.  Perhaps, because I make my living as a musician, I'm biased, but I find the notion of using an unadulterated 1-minute excerpt from a copyrighted song without permission in a political ad (or any other ad, for that matter) to be basically indefensible.

        • $quot;the purpose of copyright as envisioned by the Founders$quot;

          Not to get too far into this, but I think it's fair to say that the Founders didn't have much of an idea about recorded music, the internet, and everything else that has dramatically changed about intellectual property since then.  I think you have a good point about the Mickey Mouse problem; however, I wouldn't therefore conclude that we should restore things to the way they were in 1789.

          As for the 4-part test, I didn't explore the Henley case's application of it in detail, but if you read the opinion, I think you'll see a convincing case being made, and it's one that applies fairly closely to what happened here.

    • Legality aside, it's both despicable and stupid

      It is a campaign piece, apparently intended to sway undecided voters. It is so offensive that it, instead, drives away all but the most rabid right-wing crazies.

      We can only assume that its creators hoped to provoke a lawsuit, apparently seeking the free airplay that might result. There is no other rational explanation for failing to secure prior permission from the copyright holder to use the audio material.

  4. Licensing

    I should add that neither David nor I nor anyone else has, to my knowledge, asked the GOP a simple question: Did it pay the licensing fee? It wouldn't be very expensive. There is a splendid commentary that appeared in the Washington Post around the time that Heart was objecting to Sarah Palin's use of "Barracuda":

    http://www.washingtonpost.com/...

    • I did ask.

      I asked Jenn Nassour.  Have not received a response.  She doesn't generally answer my messages to her.  Surprise.  ;-)

  5. $quot;Mojo! Are you gonna play that song about Don Henley?$quot;

    .  

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