Toward A General Theory of Copyright–Part 1(a)

Exploring our lack of basic consensus on copyright , I wrote in Part 1 that “while the news was still all about the dramatic Megaupload arrests for massive internet copyright infringement, a major record company agreed to a proposed class action settlement for underpaying artists copyright royalties on, of all things, internet downloads.” That was just the tip of the download litigation iceberg.

Billboard reported today on one case seeking a Steve Jobs deposition in another that hints at the size of the iceberg below the water line. F.B.T. Productions v. Aftermath Records is going to trial in LA. The plaintiffs produced hits by Eminem and the defendant is part of the giant Universal group of record labels. It has already gone to the Ninth Circuit which issued a major decision interpreting standard record contract language favorably for artists and very unfavorably for labels. B.T. Productions, LLC v Aftermath Records, 621 F.3d 958 (9th Cir. 2010). The Supreme Court refused to review the decision.

The trial is about how much the label owes the producers. One  piece of evidence is a Steve Jobs deposition which might give unique insights into the iTunes deal with Universal. iTunes made the first successful and legal music download business. They got licenses from the record labels, and pay them for downloads. Eventually artists started asking what the labels were doing with that money. That’s the question in class litigation against Universal by named plaintiffs Rob Zombie and the Rick James estate. They want the F.B.T. Job’s deposition and more. Apple’s resistance is the subject of the Billboard story.

The class action mentioned in my Part 1 was against Sony and posed the same question about the money. It was headlined by the Allman Brothers Band and is playing out in New York. There are more like it. Texas attorney Tamera H. Bennett among others compiled a list of download royalty lawsuits on her WordPress blog. Many famous legacy artist names are listed.

Settlements may eventually result in a sizeable number of artists and their teams receiving additional download royalties. How much of the universe of copyrighted sound recordings they will represent remains to be seen, but a relatively small number of artists produces the majority of paid downloads and damage awards.

Both the zealous pursuit of copyright infringers, and the less zealous payment of the artists that created the infringed works, brings us back to the mini-series question.  What is the purpose of Article 1 Section 8 Clause 8′s grant of power to the Congress  “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”?

“Authors” was expanded long ago to include the business organizations that are not so much authors as bankers of authors. The Supreme Court refreshed some of our understanding of Article 1 Section 8 Clause 8 in January in Golan v. Holder, 132 S.Ct. 873 (2012). It rejected an attack on bringing foreign public domain works back under US copyright law protection to complete our implementation of the Berne Convention.

In Golan, the Court recognizes again that the dissemination of copyrighted works is as much a goal of the constitutional grant as is the creation of new works. That underscores the importance of the record label contribution, but the decision does not detract from the prime importance of artists making the works that are distributed.

What if our understanding of copyright law was less atomized and we agreed that both needed to benefit? Could the next revision of copyright law grant more tools to pursue infringers only if it benefits creators too? Sounds naive I know, but copyright law has long specified how much artists get in certain circumstances. This won’t make the technology community happy all by itself, but it’s a way of thinking about the subject that could lead to more consensus on what we too loosely think of as the “content” part of the process.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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