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Sampling and the law

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Re: Sampling and the law

Postby Guest » Mon May 06, 2019 2:34 pm

blinddrew wrote:Let's keep it civil and polite please folks. We're just setting out a couple of starting positions here.

"if you make money out of it, give at least half away to homeless people, cats or go found a synth library where anybody can use the machines and make new music.
I.e. give something back of what you gain and plant new seeds (and I mean this without any political view whatsoever, just common sense) and things will sort themselves."


Agreed, that facetious comment does not constitute meaningful discussion and is not related to what went before.
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 2:38 pm

Still Vibrations wrote:Here is a good summary in New Yorker magazine from 2014:

https://www.newyorker.com/magazine/2014/10/20/crooner-rights-spat

Thanks for the link Wireman, I shall also read it later, it looks really informative.
Interesting piece. Starts off with something of a misunderstanding of how web links work, then gets back on point about the different philosophies of content, then (disappointingly I thought) drops back into the standard tropes of Hollywood vs Silicon Valley etc.
It picks up again on the Fair Use section though, buy ultimately I would challenge his idea that this is a conflict between creators and consumers. The digital era has enabled all of us to be creators, even if that's just sticking a photo on instagram, and I'm not convinced that language of opposition is helpful.
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Re: Sampling and the law

Postby Guest » Mon May 06, 2019 2:44 pm

blinddrew wrote:I'm not convinced that language of opposition is helpful.

I think it is inevitable given the unpredictability of court decisions - even a similar law to Article 13 was suggested in America several years ago. Also the big tech companies are now so powerful that Barbara Warren has suggested that they should be forcibly broken up.
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Re: Sampling and the law

Postby degraye » Mon May 06, 2019 3:14 pm

Still Vibrations wrote:You have not explained why these creative techniques are inherently dishonest, you seem to believe your opinion is an a priori truth.

I have not said that any technique is inherently dishonest.

All I´m saying is "give credit where credit is due" (Samuel Adams October 29, 1777) and the problems with copyright previously mentioned in this thread will be easier to solve.

It would be good for mankind if we all tried to be more honest in every aspect of our life - but that´s hard, heck I even lie to myself sometimes and that´s also the hardest thing to acknowledge and change.

It may sound like I´m trying to take the moral high ground here - that´s not my purpose, I however think it´s interesting to pick things apart down to the lowest level and see what happens then when you discuss it, it might be easier to find common ground then for one thing.

My meaning was not to offend somebody either, I write in general terms of what I personally believe is the best longterm solution to the thread subject "Sampling and the law"

It´s perfectly fine with me if you don´t agree. But on your part, if you raise the question in a public form you must be prepared that somebody may have a different view and the right to express it however much nonsense it may seem to you. Wouldn´t you agree?

---

Interesting word by the way "non sense" as opposed to "common sense", but that´s the subject for a different thread on a different forum (in a galaxy far, far away :))
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Re: Sampling and the law

Postby CS70 » Mon May 06, 2019 3:30 pm

blinddrew wrote:How do you feel about sampling something that's out of copyright?

N.B. this is a genuine question. You can tell I think this is a really interesting subject. :)

That should be no issue at all.

Like all laws, copy right is a balance beret conflicting interests (the author and would be copiers) based on certain principles, ideas and desires short and long term outcomes, and also the practical ease of administration (which in pre computer times was often a major driver, look at all the legislation about finance and banking for example!)

I do have a thing with the time-limit. It would be fairer to maintain copyright until enough returns have been made by the original authors rather than a fixed time, based on a defined set of parameters.. so for example if you record a song and make a million dollars out of it it in a month, it would go out of protection right away..
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 3:44 pm

CS70 wrote:I do have a thing with the time-limit. It would be fairer to maintain copyright until enough returns have been made by the original authors rather than a fixed time, based on a defined set of parameters.. so for example if you record a song and make a million dollars out of it it in a month, it would go out of protection right away..
That would be nice! :) But in reality that would just mean that most works, certainly in music, would simply never go into the public domain. It also throws up questions around what the returns are; is that the returns in terms of sales or in terms of interesting 'Hollywood accounting' whereby phenomenally successful films have somehow never made a profit?
I think all you do there is change it from something arbitary but easily understood to something arbitary but easily complicated.
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Re: Sampling and the law

Postby CS70 » Mon May 06, 2019 4:14 pm

blinddrew wrote:That would be nice! :) But in reality that would just mean that most works, certainly in music, would simply never go into the public domain. It also throws up questions around what the returns are; is that the returns in terms of sales or in terms of interesting 'Hollywood accounting' whereby phenomenally successful films have somehow never made a profit?
I think all you do there is change it from something arbitary but easily understood to something arbitary but easily complicated.

Indeed, it would be an absolute can of worms :D

And that's the gist of it. Whatever principle you want to put in place, it probably requires balancing, which drives you to some compromise (with associated debate and grey areas, and attorneys and inconsistent judgements across jurisdictions). And even when you have an agreed theoretical balance, the actual real-world application is messy and requires more interpretations, adds more grayness and often more conflicts with completely unrelated issues. if you changed copyright, you would most likely shift the grayness from here to there and you would be other Vibrations and Drews arguing for another change.

Human endeavours are like a pendulum... you can't expect them to be straight, what's important is not to swing too much one way or the other..
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 4:29 pm

CS70 wrote:Human endeavours are like a pendulum... you can't expect them to be straight, what's important is not to swing too much one way or the other..
Agreed, and similarly you can't expect them to stay the same when the world around them changes.
Personally though I think the pendulum has only swung in one direction with copyright (more things covered, for longer, and with less allowance for Fair Use) and it needs to swing back to the middle a bit.
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Re: Sampling and the law

Postby CS70 » Mon May 06, 2019 4:56 pm

blinddrew wrote:
CS70 wrote:Human endeavours are like a pendulum... you can't expect them to be straight, what's important is not to swing too much one way or the other..
Agreed, and similarly you can't expect them to stay the same when the world around them changes.
Personally though I think the pendulum has only swung in one direction with copyright (more things covered, for longer, and with less allowance for Fair Use) and it needs to swing back to the middle a bit.

It may well be - as much I appreciate the monumental writing effort on the State of Things :-), that is information that who reasons on things (as opposite to have an a priori judgement) probably already had.

I'd be far more interested in hearing which changes you propose.

Because in my mind the principles are what they are:

- you've gotta compensate the author investment and balance it with the potential wishes or would-be copiers with the two bashing each other with large clubs, which used to be the old fashioned method.
- you've gotta include fairness to them who actually create the invention (which descends from our general principles that the result of individual endeavors are owned by the individual, for the good and bad). This means that direct copy is generally forbidden if the result competes in the same area.
- You have to include deeply transformative use, which it is.
- You're sure as hell that there will be still plenty of grey areas, so you have to include a mechanism for solving this - and that's a panel of common men. And if the greyness is big, different panels may end up with different conclusions, and there's no way around it.

So what to change?
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 5:47 pm

As I said above, for me the two biggest things would be reduce the duration and stick to the principles of fair use (rather than the 91/94 decisions).
Also a standardisation of rules across different territories.
Also a hard reset, based on new durations, of what's in and out of copyright. Currently we have stuff that has been in, our and now back in copyright.
Also get rid of the anti-circumvention passages in the DMCA - they're out of date, have never been effective, and actually have nothing to do with copyright.
Also, while we're at it, a blanket permission to take a back-up copy for personal use and the permission for format shifting of a legitimate purchase (i.e. ripping a CD).
If we were shortening the durations as I proposed above, I'd also bring forward the reversion limit to 28 years as well.
Finally (for now!), and not directly relevant to copyright but very relevant to what else is going on in legislatures around the world, is I'd reinstate the technical advisory body for Congress and create something similar for the UK / EU. At the moment we have far too many laws being made on bandwagon politics by people who have no understanding of what they're regulating. We won't get rid of the knee-jerk reaction but at least we'd have a small chance of some sensible opposition and debate.

None of the above will happen of course (in fact things will keep going the other way) because most of the lobbying is being done by the existing, copyright-dependent industries and the proposals above are all about shifting a balance back to the public. :(
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 7:22 pm

wireman wrote:I didn't have the will to check all the previous posts but in case it is of interest and not already noted there is a relevant paper here
Have now had a chance to read up on this (and do a little more digging into 'fair dealing', which basically means no unlicensed sampling).
It's an interesting paper but I'd argue that it makes a common mistake in thinking that the purpose of copyright is to remunerate the creator - that's the mechanism not the purpose.

The other thing that leapt out at me was, sheesh, does no-one proof-read stuff any more? :roll:
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Re: Sampling and the law

Postby Watchmaker » Mon May 06, 2019 7:50 pm

One of the things I find challenging in following this thread is the conflation of two separate ideas: What is, and what "should be."

Also, there are assumptions that inform the common understanding of "right versus wrong" that have little to do with the specific topic.

For example, factor four in the fair use doctrine essentially underscores the notion that copyright infringement is "wrong" because it deprives the author of an ownership right. It is unique in that the promise of future rewards is guaranteed via copyright law. Copyright infringement is a cause of action when harm can be demonstrated. That harm is harm to future profits, whereas the baser crime of theft addresses the deprivation of an existing ownership right. So this idea of harm is critical. So too, is the notion of equable remedies. Are they to be purely remunerative, or is punitive and discouragement also to considered when making the plaintiff whole?

To my mind, creating a civil jeopardy based on the promise of future earnings is a bit specious, not least because this is predicated on an economic assumption, to wit: that innovation is motivated by the promise of profit, and that, absent that promise, innovation is not alluring enough for really talented people to bother, thus society is harmed by not creating financial incentives.

This is a vastly different motivator than patronage, which preceded all this nonsense about a right to future monies, and I hope we can all agree that the Sistine Chapel is a pretty high quality bit of work. I wonder how much money the heirs of Michelangelo have lost on tourist postcards alone.

So too, copyright law and the promise of future earnings is responsive to technology, both from a production perspective, but also, and importantly here, in terms of reach and distribution. Spotify, etc. make more money than the artists do, because the contract entered into allows for such, but no one is effectively demonstrating that form of siphoning future profits is wrong. So a question arises. When does distribution become usury, and should that become part of the protections under copyright?
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 7:58 pm

Excellent question! One I shall think about further (not that my opinion counts for anything) but not tonight as I'm off to host the local session. :)
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Re: Sampling and the law

Postby CS70 » Mon May 06, 2019 11:08 pm

This is getting quite interesting! (for the three people left of course :D) Great fun, besides personally useful!

Now I start understanding what you come from, and especially something you write above, namely

It's an interesting paper but I'd argue that it makes a common mistake in thinking that the purpose of copyright is to remunerate the creator - that's the mechanism not the purpose.

brings me a question. We're moving a little in the ethereal realm of philosophy of law here, but the idea that a law has a (possibly benign) purpose is only one of the possible ways of thinking of it - the "utilitarian" one. Are you aware that that there are others? In one, for example, law just is - does not need any particular justification (or even intent); in the aristotelian one, law has a specific moral intent; the Kantian view is that law is there to protect inherent rights, and so forth (there's quite a few); the deontological view is that duty and obligation (and meta-obligation, such as following the law) trump a more consequence-evaluation behavior (and that's why Jean Valjean ends in prison, popular one that one).

So that copy right has a purpose, or that purpose is the justification/reason of its existence, is not necessarily so clear cut. It may have some historical roots (and even then, history is often made by who's left, so it's a tough one to call), but it does not have the axiomatic qualities that you seem to attribute it. A law does not become so because of an historical process, but only because it receives sufficient votes in whatever parlamentarian system you happen to have at hand (if you do have one, that is - otherwise, there's China or Saudi Arabia).

All these views can quite happily coexist, so long we all agree that a) existing law needs to be followed so long is valid but b) we use a common mechanism for changing them (i.e. the political process that brings legislation to life). Then of course there's civil disobedience, but with copyright it would be, I feel, a little out of place. :-)

Just as an example, my own appreciation of law is more like a balance among conflicting fundamental principles that we have (somewhat arbitrarily) chosen as fundaments of our society and I could not care less on how historically things have evolved. I am not - never been - particularly deontologic. In my hyperbolic examples a couple of days ago, for example, I noted how certain historical behaviors (especially on treatment of women and physically weaker parties) are no longer tolerated even if, for the majority of human history, the trend was different: thru a course of happy accidents we collectively decided that we wanted a society with certain principles, whose consequence was to obliterate thousands of years of agreed behavior.

Nobody gives a rat's ass of course (and rightly so :)) of what I think and of why I abide to the law, so long I do. But these fundamental ideas, if unspoken, can kinda ensure that we talk across each other without knowing why. My starting point is, for example, the right to ownership and entitlement to one's inventions; from a "overall benefit" point of view, a case can be made (and a certain Karl&friends did make it) that individual ownership is not, really, a good thing at all.

After this hyper long premise (weee, it's the lounge!) a bit more specifics to see if I get you right:

blinddrew wrote:As I said above, for me the two biggest things would be reduce the duration and stick to the principles of fair use (rather than the 91/94 decisions).

The 91 and 94 cases being about , if I read you well, Biz Markie not being allowed to use Gilbert O'Sullivan without asking or licensing, and the Funkaedelik sampling.

Now why exactly do you think these should have been fair use?
Biz use either was truly transformative, or it was not. If it was, it should be allowed; if it wasn't, it shouldn't. Now Gilbert was a singer and songwriter; Biz as well, I suppose. They worked in the same area, catered for the same type of public and a similar at form . So the area - to an non-expert panel - was similar. That leaves the nature of the work: surely rap aint the same as early 70s, but also goes on the radio and is purchased in terms of cds, cassette tapes and vinyl. So it's a grey area. How do you solve the grey area? You put it down to the an non-expert evaluation. Note I am not saying it's the right decision: I'm saying that most probably there aren't clear cut decisions and, more importantly, there probably cannot be (so long we want to preserve an element of judgement). I'm fully aware that the decision probably pissed BIz off and in 91 rap was an innovative an new form etc etc, but the crux of the issue is exactly how much innovative to the (untrained) ears of someone that doesn't really care that much about music. Grey areas are gray. What was wrong in asking Gilbert's estate permission?

Similarly for 94: as I asked earlier. if the bit was not recognizable, how in the world a suit arose in the first place? And if it was, it's just as above: it can be recognized, so the question is - is it transformative enough? Does it belong to a very different market/area?

It's a real question: I'd like to understand why you feel these decisions should have been different (and I may end up agreeing with you :)) - but not in general terms, but specifically on why that bit of lifted music/lyrics should be considered an exception when my grandmother, upon hearing it, would have recognized it.

Also a standardisation of rules across different territories.

That would be great, and I think few would disagree. Unfortunately there is no central world government which allows this in practice. One of point of uniting is exactly so people has less complications to deal with.

Also a hard reset, based on new durations, of what's in and out of copyright.


I agree that current definition feels somewhat random. Life + 70 years in the US, innit? Why 70? Why not 100? It seems to be a bit tailored to life + expect life of direct children but I really have no idea. The challenge is, a bit as above, that any number would feel somewhat random. "Never" or "Forever" would be definitely more clear cut - but then again a consideration is probably to balance different principles - private property vs. shared benefit of future members of society.

Currently we have stuff that has been in, our and now back in copyright.

Is this because of remastering?

Also get rid of the anti-circumvention passages in the DMCA - they're out of date, have never been effective, and actually have nothing to do with copyright.
Also, while we're at it, a blanket permission to take a back-up copy for personal use and the permission for format shifting of a legitimate purchase (i.e. ripping a CD).

This I find it odd. Now of course as a private consumer I'd like it and I can see why I would - say making backup of a CD would allow me not to have to re-buy the CD if it breaks.

But for a lot if not all physical products, part of the what you buy is the vessel itself. You are not sold the functionality in perpetuity, but a specific object which gives you the functionality, generally for a finite, if unforeseeable, period of time. If you buy a phone, you can make phone calls only so long it works - and electronics being what they are - you know that one sad day it will not work anymore and you'll need another one. There's a certain very large US company which bases a large part of its business model and earnings on exactly that idea.

The only difference is, for example, that content is information? But why should information be treated so different? Say who? It could of course, but it's not a given. As we all know after sweating and paying in a studio, information is not cheap to produce - just as a phone. It is obviously far more easy to duplicate, but why that property should make it ok to duplicate (so that while I have to buy a new phone in case it breaks, I don't have to buy another copy of the same CD)?

Other than, of course, that I'd like to have both a new instance of my phone and CD for free and never have to pay again after buying the first one :)

If we were shortening the durations as I proposed above, I'd also bring forward the reversion limit to 28 years as well.

As above: why 28 should be particularly better? Why not 25? Or 32? I aint taking the piss here, but I would guess these number descend from some kind of reasoning and it's the reasoning that should be discussed, not the numbers. From all I know, the 70 years may come, as I was saying above, from the idea that a successful invention provides for you and your first generation - which is quite strong incentive to us biologicals. Or it may have come out of a hat :D

Finally (for now!), and not directly relevant to copyright but very relevant to what else is going on in legislatures around the world, is I'd reinstate the technical advisory body for Congress and create something similar for the UK / EU. At the moment we have far too many laws being made on bandwagon politics by people who have no understanding of what they're regulating. We won't get rid of the knee-jerk reaction but at least we'd have a small chance of some sensible opposition and debate.

None of the above will happen of course (in fact things will keep going the other way) because most of the lobbying is being done by the existing, copyright-dependent industries and the proposals above are all about shifting a balance back to the public. :(

Totally agree it would be great, but I think you attribute more intentionality than there is. While lobbies lobby, a big evil coordinated plan seems a bit too much: it's much simpler, every nation has its own sovereignty, many nations have recently taken a nostalgic view of it and we're still in a phase of history where large, world-encompassing rules are seen with suspicions. Interests that benefit from the situation do, obviously, push to keep it and even ride the tiger (like a certain recent political process which shall not be named in the thread :) ), and the generel citizens at times end up fooling themselves supporting them. Less than it once happened, more than it will (hopefully).

Phew! The reason I wrote all this is that my National Day gig is saved since I found a great drummer to replace mine, who that day is with the family. So night's job was done early.

Have a great one! :D
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Re: Sampling and the law

Postby blinddrew » Mon May 06, 2019 11:43 pm

Ok, this isn't going to get answered on my coffee break tomorrow but i might get a couple of points done and i'll build on things from there. :)
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Re: Sampling and the law

Postby Guest » Tue May 07, 2019 10:52 am

The one thing that detractors seem unable to accept is that quotations by classical composers and poets are intended to be recognised, and the audience and readers would recognise them. Yesterday I read a poem that had a line quoted from Walt Whitman, the poet did not need to acknowledge it because most poetry readers would know that.

I have nothing more to say on this subject. I quote, transform, refer to other music and writing, and I want the audience to recognise the sources. I even mention it in the programme notes. If people think I'm stealing or being dishonest then an overview of Western culture is not going to change those views.

Here is a short section of a long text I wrote for a classical work that was performed last November and should be performed again this year - I have annotated it and the annotations are irrelevant and unnecessary but the text is authentic - which is what I, and the musicians who commissioned it, wanted:

Yes, I had a boyfriend - lived in Aston in the late 70’s who knew him, and the family too, I think.
(reply taken verbatim from a web forum about clubbing in the 1960s/70s)

Friday 19th October - over 18s only - no ID, no entry.
Free tickets available.
(taken from a club poster on a wall in Birmingham)
Online booking, shellac manicure, pedicure or both - up to 63% off
(taken from an advertisement for a beauty clinic)
- hosted by limited capacity all out.
(collage of text taken from a club poster on a wall in Birmingham)

Hi, I am from Birmingham so obviously know a lot of Birmingham grime artists. I want to know if you’re not from Birmingham do you listen to any of our artists.
(question taken verbatim from a web forum)
Posted a year ago.
(web forum time stamp)

I think a lot of people listen to Jaykae on this forum.
(reply taken verbatim from a web forum)
She tells me over email from a box behind the decks.
( taken verbatim from a Grime magazine interview)
Coming from Birmingham as a DJ
she started out there’s always been grime
to support fm station.
(collage of answers from an interview with a DJ)
Just to name some that I listen to.
(reply taken verbatim from a web forum)

I could have written an original text but I wanted realism, authenticity and something relating to Birmingham now.
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Re: Sampling and the law

Postby CS70 » Tue May 07, 2019 11:23 am

Still Vibrations wrote:The one thing that detractors seem unable to accept is that quotations by classical composers and poets are intended to be recognised, and the audience and readers would recognise them. Yesterday I read a poem that had a line quoted from Walt Whitman, the poet did not need to acknowledge it because most poetry readers would know that.

Haven't read anybody having an issue with that - homages are great.

The question is - what's wrong in asking? And in case the homage becomes a success, it's probably so in part because of the recognition and the physiological associations that such recognition brings up. So what's wrong with sharing a part of the results with the original author?

The only detractors I've read so far aren't detractors of using other people's work as a homage or just a trampoline. They are detractors of not recognizing them and sharing a little of the returns, if any. In other words, to intentionally leaving space of misunderstandings.

Take your example. Even in case that most of the people listening to the poem recognize the original (and that's far from a given), by not acknowledging that author, there will at least some be people who will think that the lyric is yours.

Isn't that a little lame?
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Re: Sampling and the law

Postby Brian M Rose » Tue May 07, 2019 12:38 pm

What exactly is 'fair use'. The obvious one is in scientific papers, quoting previous art. In this case, a full citation is required.
Some time ago, when I was Technical Manager at a Rental Company, at a trade show, we built a small cinema (together with Sony) to demonstrate the newly released Digital Betacam.
We showed five extracts from TV programmes and films, with everyone being only too happy to loan us the transmission tapes of the shows.
Everything was fully cited in both the commentary and credits. But that's the thing, we sought (and received) full clearance, and yes, it did take time in the case of major broadcasters.
A second example then. At the same time, there were people in Harrow town centre selling what were obviousness pirate videos off the street. Some of these were very good copies, technically excellent. Well, they were arrested and prosecuted and seem to have disappeared.
So two extreme cases; to motto? Always seek permission.
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Re: Sampling and the law

Postby blinddrew » Tue May 07, 2019 10:58 pm

CS70 wrote:
It's an interesting paper but I'd argue that it makes a common mistake in thinking that the purpose of copyright is to remunerate the creator - that's the mechanism not the purpose.

brings me a question. We're moving a little in the ethereal realm of philosophy of law here, but the idea that a law has a (possibly benign) purpose is only one of the possible ways of thinking of it - the "utilitarian" one. Are you aware that that there are others? In one, for example, law just is - does not need any particular justification (or even intent); in the aristotelian one, law has a specific moral intent; the Kantian view is that law is there to protect inherent rights, and so forth (there's quite a few); the deontological view is that duty and obligation (and meta-obligation, such as following the law) trump a more consequence-evaluation behavior (and that's why Jean Valjean ends in prison, popular one that one).
Ok, that's way out of my depth! I have never been a student of law or of philosophy. :) One of the reasons I suggested we look at the US system was that being relatively new, and being part of a legal system created from scratch, we can have a good idea about the purpose. As well as the, fairly clear I think, wording of the section, we also have the records of the discussion around it.

CS70 wrote:So that copy right has a purpose, or that purpose is the justification/reason of its existence, is not necessarily so clear cut. It may have some historical roots (and even then, history is often made by who's left, so it's a tough one to call), but it does not have the axiomatic qualities that you seem to attribute it. A law does not become so because of an historical process, but only because it receives sufficient votes in whatever parlamentarian system you happen to have at hand (if you do have one, that is - otherwise, there's China or Saudi Arabia).

All these views can quite happily coexist, so long we all agree that a) existing law needs to be followed so long is valid but b) we use a common mechanism for changing them (i.e. the political process that brings legislation to life). Then of course there's civil disobedience, but with copyright it would be, I feel, a little out of place. :-)

Just as an example, my own appreciation of law is more like a balance among conflicting fundamental principles that we have (somewhat arbitrarily) chosen as fundaments of our society and I could not care less on how historically things have evolved. I am not - never been - particularly deontologic. In my hyperbolic examples a couple of days ago, for example, I noted how certain historical behaviors (especially on treatment of women and physically weaker parties) are no longer tolerated even if, for the majority of human history, the trend was different: thru a course of happy accidents we collectively decided that we wanted a society with certain principles, whose consequence was to obliterate thousands of years of agreed behavior.

Nobody gives a rat's ass of course (and rightly so :)) of what I think and of why I abide to the law, so long I do. But these fundamental ideas, if unspoken, can kinda ensure that we talk across each other without knowing why. My starting point is, for example, the right to ownership and entitlement to one's inventions; from a "overall benefit" point of view, a case can be made (and a certain Karl&friends did make it) that individual ownership is not, really, a good thing at all.
Hmmm. It's an interesting question. I think I start from a mixed position in that I recognise a right to individual ownership protected by law (otherwise the strongest simply take what they want to the detriment of others (perhaps)), but I also recognise a need/want for a social structure that transcends the needs of the individual. That might take the form of a public healthcare system, a public domain of information, or indeed a central tax collection agency to fund all these things and the courts that oversee them.

CS70 wrote:After this hyper long premise (weee, it's the lounge!) a bit more specifics to see if I get you right:

blinddrew wrote:As I said above, for me the two biggest things would be reduce the duration and stick to the principles of fair use (rather than the 91/94 decisions).

The 91 and 94 cases being about , if I read you well, Biz Markie not being allowed to use Gilbert O'Sullivan without asking or licensing, and the Funkaedelik sampling.

Now why exactly do you think these should have been fair use?
Biz use either was truly transformative, or it was not. If it was, it should be allowed; if it wasn't, it shouldn't. Now Gilbert was a singer and songwriter; Biz as well, I suppose. They worked in the same area, catered for the same type of public and a similar at form . So the area - to an non-expert panel - was similar. That leaves the nature of the work: surely rap aint the same as early 70s, but also goes on the radio and is purchased in terms of cds, cassette tapes and vinyl. So it's a grey area. How do you solve the grey area? You put it down to the an non-expert evaluation. Note I am not saying it's the right decision: I'm saying that most probably there aren't clear cut decisions and, more importantly, there probably cannot be (so long we want to preserve an element of judgement). I'm fully aware that the decision probably pissed BIz off and in 91 rap was an innovative an new form etc etc, but the crux of the issue is exactly how much innovative to the (untrained) ears of someone that doesn't really care that much about music. Grey areas are gray. What was wrong in asking Gilbert's estate permission?

Similarly for 94: as I asked earlier. if the bit was not recognizable, how in the world a suit arose in the first place? And if it was, it's just as above: it can be recognized, so the question is - is it transformative enough? Does it belong to a very different market/area?

It's a real question: I'd like to understand why you feel these decisions should have been different (and I may end up agreeing with you :)) - but not in general terms, but specifically on why that bit of lifted music/lyrics should be considered an exception when my grandmother, upon hearing it, would have recognized it.
For the first case, my beef comes in two forms: firstly that the judge conflates throughout theft and copyright infringement and in doing so tramples all over the concepts of fair use. One of the key concepts of Fair Use is that permission is not needed, which is good because for huge amounts of work under copyright the actual owner is not known. Had the judge taken a full assessment of the four factors, from a copyright perspective, and still reached the same conclusion (say the sample was too long, or the work was not transformative enough) that would be ok. But he didn't, instead he set a precedent that left only the 'de minimis' doctrine as a defence.
Then, in the 94 case, the appeals court basically said that not only was Fair Use not a defence, it also took away the 'de minimis' doctrine. Congress have the authority to define copyright, and they included a fair use defence. These two rulings have effectively taken that away without the proper consideration. If we were still on original copyright durations this would be less of a problem. But we'll come to durations in a bit.
The thing really is that it isn't whether or not that I think these cases were fair use, it's that the courts have effectively removed that as a defence for all sampling cases.

CS70 wrote:
Also a standardisation of rules across different territories.

That would be great, and I think few would disagree. Unfortunately there is no central world government which allows this in practice. One of point of uniting is exactly so people has less complications to deal with.

But we had the Berne convention, and much more recently the Marrakesh Treaty. Instead we do have a general alignment of these things but only in one direction and generally under the bullying, sorry, encouragement, of the USTR.
We need an updated Berne convention but one where the rights of the public are represented as strongly as those of the copyright holders.

CS70 wrote:
Also a hard reset, based on new durations, of what's in and out of copyright.


I agree that current definition feels somewhat random. Life + 70 years in the US, innit? Why 70? Why not 100? It seems to be a bit tailored to life + expect life of direct children but I really have no idea. The challenge is, a bit as above, that any number would feel somewhat random. "Never" or "Forever" would be definitely more clear cut - but then again a consideration is probably to balance different principles - private property vs. shared benefit of future members of society.

Well, firstly, I plainly don't think that copyright should continue after death because there can be no more incentive. But actually there is plenty of data around to use an evidence-based approach to setting the durations. Pre-internet era, most copyrighted work had exhausted most of its value after around 7 years. Post internet, there is evidence to suggest that there is a slightly longer tail, but again we're only looking at 10-12 years. There are obvious exceptions (christmas songs!), but we shouldn't be making laws on 1-in-a-million outliers.
So if most value is extracted in 10-12, 14 years would give you a couple of years leeway and a nice, historical tie-in. An option to extend for the same period keeps things simple and allows those who are still capitalising on their work to keep doing so. I would suggest a further extension could be allowed in the event of a reversion of ownership. Currently after 35 years a creator who has signed away their copyright can reclaim it. Why 35 years? Who knows. But if it was linked to the end of the second extension that would make sense, and if it was reclaimed, a further period of protection, to allow the original creator a new chance to exploit that work, would allow for re-issues etc that directly benefited the original creator - hence, possibly, allowing them to create new work.

CS70 wrote:
Currently we have stuff that has been in, our and now back in copyright.

Is this because of remastering?
That's one reason, that I hadn't considered, and you can probably guess my take on that, but I was thinking actually of things that were old enough to enter the public domain, but had subsequently been re-privatised when new copyright extensions were passed and made retroactive. Which is a crazy situation.

CS70 wrote:
Also get rid of the anti-circumvention passages in the DMCA - they're out of date, have never been effective, and actually have nothing to do with copyright.
Also, while we're at it, a blanket permission to take a back-up copy for personal use and the permission for format shifting of a legitimate purchase (i.e. ripping a CD).

This I find it odd. Now of course as a private consumer I'd like it and I can see why I would - say making backup of a CD would allow me not to have to re-buy the CD if it breaks.

But for a lot if not all physical products, part of the what you buy is the vessel itself. You are not sold the functionality in perpetuity, but a specific object which gives you the functionality, generally for a finite, if unforeseeable, period of time. If you buy a phone, you can make phone calls only so long it works - and electronics being what they are - you know that one sad day it will not work anymore and you'll need another one. There's a certain very large US company which bases a large part of its business model and earnings on exactly that idea.

The only difference is, for example, that content is information? But why should information be treated so different? Say who? It could of course, but it's not a given. As we all know after sweating and paying in a studio, information is not cheap to produce - just as a phone. It is obviously far more easy to duplicate, but why that property should make it ok to duplicate (so that while I have to buy a new phone in case it breaks, I don't have to buy another copy of the same CD)?

Other than, of course, that I'd like to have both a new instance of my phone and CD for free and never have to pay again after buying the first one :)
Ok, there are a couple of things in play here. The parallel with physical products doesn't really help because we're not comparing apples and apples. If I buy a broom, I can't make a back-up of it. But likewise, no-one can stop me making a new handle for it if it breaks, or putting a new head on it if the bristles fall out.
What we are buying, especially nowadays, is content. Or are we? Actually, frequently we're buying a licence for that content. We never own it in the way that we think we do. The last 20 years is filled with cases of people buying games, music, books, videos that they suddenly lose because the original seller stops supporting the platform.
You haven't bought that music, you've just bought an ephemeral licence for as long as the seller can be bothered to support the product.
This situation could be rectified by having a really clear explanation and obligation: if i'm buying a product (say an mp3 without DRM) then my normal retail rights would apply. I have that product and can format shift it for back up and personal use (much as a lot of software is licensed), but if i buy a license for a product, the seller should have to commit to support and maintain that product for a period clearly specified in the sale information.

CS70 wrote:
If we were shortening the durations as I proposed above, I'd also bring forward the reversion limit to 28 years as well.

As above: why 28 should be particularly better? Why not 25? Or 32? I aint taking the piss here, but I would guess these number descend from some kind of reasoning and it's the reasoning that should be discussed, not the numbers. From all I know, the 70 years may come, as I was saying above, from the idea that a successful invention provides for you and your first generation - which is quite strong incentive to us biologicals. Or it may have come out of a hat :D
Think I've covered this above, but basically it is balancing the opportunity to exploit the work with the renewal of the public domain. 25 might be a better number, but this can, and should, be evidence driven. It probably should be different for different product types, based on the available evidence.

CS70 wrote:
Finally (for now!), and not directly relevant to copyright but very relevant to what else is going on in legislatures around the world, is I'd reinstate the technical advisory body for Congress and create something similar for the UK / EU. At the moment we have far too many laws being made on bandwagon politics by people who have no understanding of what they're regulating. We won't get rid of the knee-jerk reaction but at least we'd have a small chance of some sensible opposition and debate.

None of the above will happen of course (in fact things will keep going the other way) because most of the lobbying is being done by the existing, copyright-dependent industries and the proposals above are all about shifting a balance back to the public. :(

Totally agree it would be great, but I think you attribute more intentionality than there is. While lobbies lobby, a big evil coordinated plan seems a bit too much: it's much simpler, every nation has its own sovereignty, many nations have recently taken a nostalgic view of it and we're still in a phase of history where large, world-encompassing rules are seen with suspicions. Interests that benefit from the situation do, obviously, push to keep it and even ride the tiger (like a certain recent political process which shall not be named in the thread :) ), and the generel citizens at times end up fooling themselves supporting them. Less than it once happened, more than it will (hopefully).
Whilst generally I follow Hanlon's razor (it is unwise to ascribe to malice what can be explained by incompetence - or 'cock up before conspiracy' :) ) in this case there really isn't much of a conspiracy needed. There are 3 major record labels now. They are all represented by the RIAA. They, and the MPAA, have funded and lobbied so effectively in the US that the US Trade Representive (USTR) cuts and pastes their standard wording into every trade negotiation. It doesn't take much intentionality, in fact, examining the lobbying spend for Article 13, we can see it clearly in action in Europe.
But copyright isn't my main beef here. it's more about clueless politicians regulating something they barely use and understand even less, at the behest of monolithic industries that can't or won't adapt, and in response to tabloid headlines, in a way that will fundamentally bugger things up for us and possibly a couple of generations to come.

God I hope I've got the formatting right for this! :D
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Re: Sampling and the law

Postby Guest » Wed May 08, 2019 12:21 am

blinddrew wrote:I think I start from a mixed position in that I recognise a right to individual ownership protected by law (otherwise the strongest simply take what they want to the detriment of others (perhaps)), but I also recognise a need/want for a social structure that transcends the needs of the individual. That might take the form of a public healthcare system, a public domain of information, or indeed a central tax collection agency to fund all these things and the courts that oversee them.

A more liberal approach and fair use would benefit our culture, creativity and society. These should not be sacrificed before the altar of private ownership. Even water, essential to life, we have to buy from avaricious companies who only think of profits. Too much importance is given to individual rights, not enough to social responsibility. We should not inhibit excellent creative works because individuals have too much status in law. Our culture does not belong to a small group of individuals, it belongs to all of us - it is a common culture and nothing is sui generis.

CS70 wrote: Even in case that most of the people listening to the poem recognize the original (and that's far from a given), by not acknowledging that author, there will at least some be people who will think that the lyric is yours.

If I include something such as:

Well, it's one for the money,
two for confusion,
to get ready and get ready


Just about everybody will know it is a reference to Blue Suede Shoes. And if they don't, does it matter? It is not a set of safety instructions, they do not have to be understood perfectly by every single person in the audience.
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