Sample Trolls, Serendipity, and Citation-itis

troll.jpgTim Wu adds a thoughtful contribution to the “copyright-run-amok” literature with his piece Jay-Z vs. the Sample Troll in Slate. He covers the litigation crusade of Bridgeport Music, Inc., which holds “portfolios of old rights (sometimes accumulated in dubious fashion) and use[s] lawsuits to extort money from successful music artists for routine sampling, no matter how minimal or unnoticeable.” The company has commodified every bit of its music, suing over sampling of tiny fragments of sound that are unnoticeable to the average listener:

in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample . . . it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of The Lord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport’s campaign.

As Wu notes, “there’s only one appellate court, the 6th Circuit, that takes the ridiculous position that any sample, no matter how minimal, needs a license.” But that decision has cast a pall over creativity in many musical fields.

Why would such an extreme view find adherents? I think the “get a license” school is importing legal academic norms of citation into creative industries. Essentially, the 6th Circuit is saying “give credit for everything you use–and while you’re at it, pay for it!” This position might make some sense if there were searchable databases for music and movies that are nearly as useful as the textual databases lawyers use–and if the materials could be obtained for the types of prices we pay. But music and movie searching is a lot more difficult than text search. (Google likely paid $1.6 billion for YouTube not because of the site’s technology, but for all the labor its users put in to categorizing the video clips on it via tags, favorites lists, subscriptions, etc.). Moreover, the types of institutions that guide print permissions are not as easy to use in the music business. One intern I know has told me that it takes weeks or months for his company to clear permissions, and often they will give no reason for a refusal to clear rights.

But even if the search/attribution and payment problems were solved, would we really want an academic model of production to pervade the creative industries? What about the role of spontaneity, of the serendipitous fusion of diverse influences? Do we really want moviemakers to wait for months to see if they can get permission to have a certain image in the background? Or for remixers to worry that some lurking troll can grab massive damages as soon as they gain notoriety? As Julie Cohen argues, “Within a given network of social and cultural relations, an important . . . determinant of creative ferment is the play, or freedom of movement, that the network affords.” The real menace of the sample trolls is to inject ever more lawyerly caution into realms of life that depend on serendipity.

Photo Credit: Stock Exchange/Kfawcett.

2

New Insights Into Guantanamo Bay Detention Hearings

This morning, NPR played excerpts of several Guantanamo Bay detention hearings. Portions are available here. These hearings were conducted in 2004 to determine whether the individuals should be treated as “enemy combatants.” Unfortunately, the recordings are of relatively low quality. In any case, they provide only limited insight into the totality of the process. Meanwhile, Mark Denbeaux of Seton Hall studied over 400 detentiion hearings. His conclusion: all of them ultimately resulted in the suspects being found “enemy combatants.” (On a couple of occassions, the hearings had to be redone to allow for this conclusion.) More on this from NPR as well.

3

A Breathalyzer In Every Car

Should I be very pleased that some people are working hard to insure that every car contains a breathalyzer that will prevent drunks from driving? This, from the NY Times:

Officials say interlocks for first offenders are not a panacea but will reduce repeat offenses. They say the next step will be a program to develop devices to unobtrusively test every driver for alcohol and disable the vehicle. The automaker Saab and a medical equipment company already have devices that may be adapted for that job.

On one hand, this approach is sensible. Assuming the devices are effective (that is, can’t be circumvented and don’t incorrectly exclude non-drunks), why wouldn’t we want to keep intoxicated people off the road? The reality is that police-enforced drunk driving laws don’t work very well. Relatively few drunk drivers are caught – except after an accident. Automated breath tests can not only save lives; they can prevent people from getting criminal records.

On the other hand,something about this technology makes me nervous. I concede that this might be irrationality – the product of too many years in criminal defense. One possible downside is that malfunctioning machines might block legit drivers from using their cars. Another is that it will prevent people from driving in a few situations where we would prefer that a (slightly) drunk person drive. Imagine that a person with .12 blood alcohol content is in his farm house with his wife. If she has a medical crisis, it will take an ambulance 30 minutes to get there, and another 30 minutes to get to the hospital. The husband can get her to the hospital in 30 minutes total. Assuming the risk of an accident at .12 BAC isn’t too high – and I suspect that, empirically, the risk is rather small – don’t we want our farmer to drive? Of course, this sort of situation is likely to be pretty rare.

I also worry a bit about the slippery slope. Will police seek to monitor these breath tests to catch people who even attempt to drive drunk?

Try as I might, however, I can’t convince myself that these devices are bad news. I like any invention that reduces the number of criminals, and the costs of crime, without filling up our prisons.

UPDATE: On a related note, Elizabeth Joh has an interesting piece considering some technologies that might reduce the role of police discretion in traffic stops.

5

Was Johnny Cash a Law Professor?

johnny-cash-01.jpgI have posted before about the music of the law. Of late I have been prepping and researching to the music of Johnny Cash, and I wonder if perhaps his songs were meant as law-exam issue spotters. Here are two examples. First, in the “The Boy Named Sue,” Cash tells the story of a man who tried to kill his father for naming him “Sue,” a sobriquet that apparently resulted in a life time of torment. Suppose, however, that the boy named Sue, rather than trying to kill his father in a honky-tonk brawl had instituted a law suit. Is there a cause of action for tortious naming?

Second, in “One Piece at a Time,” Cash tells the story of a factory worker who over the course of two decades steals a Cadillac piece by piece by piece from the factory. He and his friends then assemble the car, which proves difficult due to the constant evolution of car models. (There is no doubt some point about planned obsolesce in here as well.) He then sings:

About that time my wife walked out

And I could see in her eyes that she had her doubts

But she opened the door and said “Honey, take me for a spin.”

So we drove up town just to get the tags

And I headed her right on down main drag

I could hear everybody laughin’ for blocks around

But up there at the court house they didn’t laugh

‘Cause to type it up it took the whole staff

And when they got through the title weighed sixty pounds.

How exactly did he get title to the car? More importantly, what crime — if any — is he guilty of. The parts for the car were taken over a period from 1949 to 1973. How many larcenies have there been here? To the extent that the crime depends on the value of the item taken, should defense counsel argue that there is a single crime or hundreds of crime committed seriatim. (Can he avoid any under the statute of limitations?) What of special crimes dealing specifically with cars. Is it grand theft auto if you take it one piece at a time?

6

The Cost of Litigation

dollars1a.jpgThe NY Times has an interesting article about defamation law involving a lawsuit by a judge against a newspaper for libel. The article noted some interesting facts about the nature and cost of defamation litigation:

The [Medial Law Resource Center] said judges win at trial at about the same rate — 60 percent — as anyone else who takes a news organization to court. But of those that are appealed involving public officials, the media win about 68 percent of the time.

The reason, experts said, is that appellate courts tend to be less susceptible to emotional arguments than juries and more attuned to the legal standard of malice as it applies to public officials, including judges.

Still, during the last several years, the center said, the media have appealed a smaller percentage of cases. In the 1980s, news organizations appealed about 87 percent of the verdicts against them; since 2000, they have appealed 76 percent.

“The media tend to win, but it can be expensive to litigate because you aren’t vindicated until appeal,” Mr. Dodell said. He said that 60 percent to 80 percent of the dollars his company paid out went to defense expenses, not awards.

I am one who believes that the media should be responsible when it defames people or invades their privacy, but the last paragraph in the excerpt above is quite alarming. One of the primary problems with our legal system is its extravagent cost, and the problem is only getting worse. The problem is caused in large part by lawyers, who command extremely high hourly rates. Litigating a case is increasingly a big production, almost like producing a small movie.

One possible solution is eliminating the so-called “American rule” for litigation costs, which holds generally that each side bears its own costs. In other countries, the loser pays. Proponents of a loser pays rule argue that it will weed out frivolous lawsuits brought solely to intimidate defendants to settle rather than expend massive litigation costs. Critics of shifting to loser pays argue that such a rule would seriously deter many legitimate tort cases, as large organizations can run up litigation costs and make the risk-to-reward likelihood in a case too unfavorable for anybody to litigate. In other words, a loser pays rule might result in too few worthy cases being brought. In contrast, the American rule doesn’t overly discourage litigation, and it forces the parties to try to resolve the case themselves. But the incentive is to settle quickly regardless of who’s in the right because of the enormous potential litigation costs. Changing the American rule to loser pays still will not address the problem that we have an extremely overpriced dispute resolution system.

The great value of our legal system is that it allows people the opportunity to present their side of the story and to be heard. But that takes time and often a lot of attorney labor, which is why it is so expensive. I believe that at some point, our legal system must evolve to address the problem of cost, as the litigation process itself is becoming worse than losing the case. Is there a viable solution?

5

Rules? We Don’t Need Your Stinking Rules!

signs.jpgA very odd idea from Europe:

European traffic planners are dreaming of streets free of rules and directives. They want drivers and pedestrians to interact in a free and humane way, as brethren — by means of friendly gestures, nods of the head and eye contact, without the harassment of prohibitions, restrictions and warning signs.

Why? Because the law is so overgrown in the old country that it is (allegedly) ignored:

About 70 percent of traffic signs are ignored by drivers. What’s more, the glut of prohibitions is tantamount to treating the driver like a child and it also foments resentment. He may stop in front of the crosswalk, but that only makes him feel justified in preventing pedestrians from crossing the street on every other occasion. Every traffic light baits him with the promise of making it over the crossing while the light is still yellow . . . The new traffic model’s advocates believe the only way out of this vicious circle is to give drivers more liberty and encourage them to take responsibility for themselves. They demand streets like those during the Middle Ages, when horse-drawn chariots, handcarts and people scurried about in a completely unregulated fashion. The new model’s proponents envision today’s drivers and pedestrians blending into a colorful and peaceful traffic stream.

Ok, I get the concept, and I do think that the proliferation of law results in an enforcement loss on the margins. But there are two conditions to this experiment’s success.

First, it isn’t scalable. In absolute terms, big cities seem to me to be vastly harder to de-sign than small cities: the temptation to defect is higher; the benefits of cooperation diffuse; and the social sanctions easy to avoid. Similarly, homogenous and nondiverse populations like those that still dominate parts of Europe probably need less law than heterogeneous ones – a straightforward Shasta County idea.

Second, you still need private (tort) law. Even when the stop sign gets carted away, a reasonable duty of care remains. Further, that law has to be relatively well-appreciated to be effective. Therefore, the designers of the experiment must be sort of suggesting that we can remove law’s signs because the rules have been completely internalized.

The Limits of Tolerance

inconsiderate cell phone man.jpgSorry for the light blogging, I’ve been presenting at a couple of colloquia in California. (I’d say more now, but given the last post I’m afraid of exposing folies de grandeur.) So here’s my Andy Rooney impression.

At 6’7”, I avoid long plane trips like the plague. Given the airlines’ bizarre presumption that people ranging from 5’ to 7’ can fit into the same-size seats, I have learned every trick in the book to get into the exit row. But a new enemy menaces peaceful flights: the oblivious or ornery who play their DVD players without headphones!

How can one defend against such yahoos? Noise reduction headsets can’t cancel out everything. Well, following Larry Lessig’s “Code,” let’s outline some approaches:

1) The Market: Yes, I could buy first class seats. I could also buy a private LearJet and line it with cork. Not likely.

2) Architecture: Is there some way to design a placticized bubble to descend around these people? Given that the planes are barely kept clean as it is, I doubt it.

3) Norms: I could ask the person to quiet it down. Do you really think that’s going to work? And why should the burden be on me? Perhaps only a mobbing could accomplish the goal.

4) Law: So that leaves us with law. Why can’t someone just decree this practice abominable and stop it?

I think I’m going to petition for a notice & comment rulemaking at the FAA. Anyone have some travel horror stories I should add?

Photo: Inconsiderate Cell Phone Guy.

0

we may be in for some executive privilege fights …

This story (an excerpt of which is pasted below) may well be a harbinger of things to come — as Democrats prepare to take over committee chairpersonships, fights over documents that congressional committees request and that the administration does not want to turn over may become common. Will Congress cave upon the mere invocation of terms like “executive privilege” and “national security?” Or will they do their job as a co-equal branch of government, actually probing whether and when national security needs for secrecy exist and when it’s appropriate to demand documents, even to issue subpoeanas or to threaten contempt sanctions? For anyone curious about the constitutional ramifications of executive privilege tussles between Congress and the President, I’ve written about the issue at some length in this linked paper.

Democrats demand CIA detainee documents

Posted 11/17/2006 8:28 PM ET

By Laurie Kellman, Associated Press

WASHINGTON — A Senate Democrat who will chair its Judiciary Committee next year asked the Justice Department to release newly acknowledged documents setting U.S. policy on how suspects in the war on terrorism are detained and interrogated.

“The American people deserve to have detailed and accurate information about the role of the Bush administration in developing the interrogation policies and practices that have engendered such deep criticism and concern at home and around the world,” Sen. Patrick Leahy, D-Vt., wrote Attorney General Alberto Gonzales.

. . . .