Appointments in the Obama Administration make it clearer every day that the President fully understands the fundamental economic principle taught in every freshman econ class around the world--there is no such thing as a "free" culture.
This realization is of particular importance at a time when our international relations are in dire need of improvement. Our foreign policy professionals require all the tools they can get their hands on to build a vibrant cross-cultural human network. These concepts are familiar to readers of Joseph Nye's Soft Power and the recent report of the Center for Strategic and International Studies Smart Power Commission.
"Smart power" is a foreign policy doctrine originated at CSIS that balances the use of "hard power" (such as weapons) with "soft power" (a country's cultural attractiveness) to win the battle for hearts and minds as well as military victories.
The inventory of soft power opportunities range from hospital ships to the Voice of America, vaccination programs to academic exchanges. But soft power also includes popular culture, preferably a robust popular culture. More people in the world know of Louis Armstrong than know of Allen Dulles. And probably adore Satchmo a lot more. He didn't play music because he wanted to be "Ambassador Satch," but he became one of America's greatest cultural ambassadors because he could earn a living playing music.
There are few countries that have benefited more than the United States from the attractiveness of its ubiquitous popular culture. While Professor Nye does not expressly offer a correlation between the ability of the creative community to sustain itself as a measurement of the success of soft power as a foreign policy objective, Nye probably didn't think it necessary to make that connection when he first articulated these concepts in the late 1980s and early 1990s. The economic liberties and labor value that fuels the engine of popular culture were not then under attack.
But they are now. Because in order for popular culture to remain part of the tools available to those charged with operating a successful foreign policy for the United States, it is of critical importance that American culture survive and be regenerated, not fail and be regurgitated. The importance of these tools are not to be underestimated. Professor Nye notes in Soft Power "[l]ong before the Berlin Wall fell in 1989, it had been pierced by [music,] television and movies.... Lennon trumped Lenin.... One [Chinese] dissident told a foreign reporter [during the Tiananmen Square massacre] that when she was forced to listen to local Communist Party leaders rage about America, she would hum Bob Dylan tunes in her head as her own silent revolution."
These are all examples of the importance of maintaining cultural contact with both our friends and enemies. Unfortunately, the engine that drives the production of popular culture around the world is under attack online at levels that surpass anything experienced in the physical world.
Whether that attack succeeds or fails determines the availability of these smart power options. Ivory tower "free culture" apologists and their followers position an artist's struggle for economic freedom as a "war" that pits "Silicon Valley" (aka "innovation") against "Hollywood" (aka "Hollywood"). This view misses the point--absent a respect for fundamental economic freedom and for labor value, arguing over control of the distribution channel is a rather meaningless exercise in wedge politics.
Many of these same "free culture" academics incongruously champion the Internet as democratizing the distribution channel so the "little guy" can circumvent "Hollywood" while they simultaneously beat the drum for a government-mandated compulsory license and government-mandated pricing for all content. The rationale often heard for these extremist wage controls is that the current crisis online has produced a "market failure." Yet a fundamental element of a market is respect for basic economic rights would afford creators the ability to sustain themselves from their work product. Absent these rights there is no market, and therefore there can be no market failure.
If these basic rights are not protected, the distribution channel eventually will fill with net pollution and will be of less value to everyone. That's already happening.
Once talent is lost, it is lost forever. If it is extraordinarily difficult for creators to earn a living, there will not be another extraordinary "Ambassador Satch."
So when considering popular culture as a component of soft power in formulating foreign policy, our government ought to start at home by protecting the fundamental economic liberties that sustain the creative community both offline and online and reward the labor value of creators.
(updated at 1pm 2/1/09) Below are links and details about the reading assignment for Wednesday's class. Whitney and I have discussed and want you to know that we recognize that this is a lot of material - especially considering the shorter notice than usual. Please do your best to at least skim the "required" reading with the understanding that you may have to revisit and review more carefully later in the semester (particularly if this is a topic of particular interest to you). As Whitney said, read it all as a practitioner would; you can skim certain parts but be sure to have a solid sense of the substance as it may apply to your area of expertise/interest.
Abstract. Under current U.S. law and common understanding, the fundamental right granted by copyright is the right of reproduction – of making copies. Indeed, the very word “copyright” appears to signify that the right to control copying must be a fundamental part of any system of copyright. Nonetheless, we claim that this assumption is incorrect. The advent of digital documents has illuminated this issue: In the digital realm, copying is not a good predictor of intent to infringe; moreover, copying of digital works is necessary for normal use of those works. We argue that the right to control copying should be eliminated as an organizing principle of copyright law. In its place, we propose as an organizing principle the right to control public distribution of the copyrighted work.
Borrowing a book from a local public library would seem to be one of the most routine, familiar, and uncomplicated acts in modern civic life: A world of information is available with little effort and almost no out-of-pocket cost. Such access to information has played a central role in American education and civic life from the time of Thomas Jefferson, who believed in the crucial role that knowledge and an educated populace play in making democracy work. Yet the very possibility of borrowing a book, whether from a library or a friend, depends on a number of subtle, surprisingly complex, and at times conflicting elements of law, public policy, economics, and technology, elements that are in relative balance today but may well be thrown completely out of balance by the accelerating transformation of information into digital form….For intellectual property in particular it promises more--more quantity, quality, and access--while imperiling one means of rewarding those who create and publish. It is at once a remarkably powerful medium for publishing and distributing information, and the world's largest reproduction facility.
Abstract: Inspired by passionate contemporary debates about music copyright, this Article investigates how, when, and why music first came within copyright's domain. Ironically, although music publishers and recording companies are among the most aggressive advocates for strong copyright in music today, music publishers in eighteenth-century England resisted extending copyright to music. This Article sheds light on a series of early legal disputes concerning printed music that yield important insights into original understandings of copyright law and music's role in society. By focusing attention on this understudied episode, this Article demonstrates that the concept of copyright was originally far more circumscribed than it is today and that music - which currently is treated as core copyrightable subject matter - presented a difficult case. A number of audiences will benefit from a better understanding of the struggle over music copyright, including scholars who advance general theories about the evolution of property rights and policymakers seeking to place the current disputes over music copyright in historical perspective.
As a follow up to our discussion in class yesterday, all students are advised to review the first five articles posted via the Dean's List today (Thursday, 1/29.09).
I will post Whitney's reading assignment as soon as I have it.
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Also, I owe you all a clarification regarding the RIAA litigation strategy wrap up:
The $222K was not a settlement, it was a verdict. The judge was the one who called it out as wrong after the fact:
"On September 25, the Law Blog asked whether liability for music file-sharing was on its way out the door. Why? Because last year, in the first ever file-sharing trial, a jury found Jammie Thomas, a single mother, liable for copyright infringement for offering to share 24 songs on the Kazaa file-sharing network. Thomas got hit with a $222,000 verdict. At trial, Judge Michael Davis told the jury that merely making songs available for distribution — known in copyright circles as the “making available” standard — was enough to constitute a copyright violation. In other words, the record companies didn’t have to prove actual distribution took place. But then, in September, Judge Davis not only decided his instructions were wrong, but he also implored Congress to change copyright laws to prevent excessive awards against individuals in similar cases."
UC Hastings College of the Law Spring Semester, 2009
Class Time: Wednesdays 4:40 – 6:50pm (unless otherwise noted) Class Location: 198 McAllister Room 219
1/14/09 Cecily Mak: Introduction; Digital Music Law: Licensing and Distribution Models Reading assignment: Landy, pp. 517-541; 1/14/09; Dean’s List (day of)
1/21/09 No Class; students are encouraged to attend the UC Hastings Intellectual Property Career Fair
1/28/09 Sarah Solomon: IP Licensing Basics Reading assignment: Landy, Chapter 8; Dean’s List (day-of)
2/4/09 Whitney Broussard: Music Publishing on the Internet Reading assignment: Listed in post above & Dean’s List (day-of)
2/11/09 NO CLASS; this class is treated as a Monday
2/18/09 Bill Growney & Chris Castle: Content License Agreements; Digital Media Considerations for Artists and Distributors NOTE: this class will be three hours long and will conclude at 7:50pm. Reading assignment: Distributed in 2/4/09 class (one deck, 3 articles & one agreement) & Dean’s List (day-of).
2/25/09 Movie Day: Rip; A Remix Manifesto Reading assignment: view this 19 minute video and article posted (related written assignment to be announced on the blog before 3/4/09):
3/4/09 Jon Blaufarb (& Associate Dave Kostiner): Music Rights and Artist Management in the Digital Age: A Music Artist’s Guide to Distribution and Marketing Music over the Internet; Long Tail; 360 Deals, etc. Reading assignment: TBD and distributed during 2/25/09 class & Dean’s List (day-of). Writing Assignment shall be posted on Class Blog before this class; due in class 3/18/09
3/11/09 NO CLASS; Spring Break
3/18/09 Zahavah Levine: User Generated Content & Intermediary Liability: DMCA & CDA 230 Reading assignment (in addition to Dean's List, day of): (1) IO Group v. Veoh Networks, US District Court, Northern District of California (August 28, 2008) found at http://www.eff.org/files/Io%20v.%20Veoh%20(d%20ct).pdf, (2) a to-be-provided outline from Fred Von Lohmann of the EFF, and (3) Mark Lemley, Rationalizing Internet Safe Harbors (2007) (wherein he argues that all intermediary liability should look more like 512, but which includes a nice overview of the entire landscape) found at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=979836>
4/1/09 James Martin: Case Study: CastTV Reading assignment posted as a new post above on 3/24/09 + Dean’s List (day-of)
4/8/09 David Marglin: Database Law and Licensing: Sui Generis, Self-Help, and the Grey Areas of IP Protection Reading assignment: Agreement emailed by Korey + Landy, pp. 27-28; 191-200; 517-522; 536 (starting with “The Hot News Doctrine”)-543; 570-572 NOTE: this class will be extended to 7:30pm.
4/13/09 Jeremy Korer: Deal Making in the International Sports and Entertainment Industry [NOTE: CLASS in Room 640 of the 200 McAllister Building] Reading assignment: None, though please read the Dean's List (day-of)
4/15/09 John Jeffrey: ICANN and Beyond Reading assignment: Landy, pages 92-94; additional assignment to be distributed; Dean’s List (day-of)
4/21/09 This Tuesday will be treated as a Wednesday; Review
