See Sakai for the due dates.
Paper 1 should be submitted in a Word-type format (.docx, .doc, .odt, .rtf, ...), not pdf.
Final version due date will be announced after I get the draft versions graded.
You are to pick one of the topics below. Both topics relate to the impact of copyright on what might be seen as otherwise legitimate activity. In both topics, numerous questions are posed. These are included only as suggestions, to help you get started. You do not have to answer them all!
And, if so, how? The takedown rules are a bit of a compromise: sites accepting user-posted content get immunity, provided they comply with takedowns. Do we need to change the rules in favor of content owners, to make takedowns easier? Or do websites that accept user-contributed content need some sort of protection for users posting copyrighted content?
Peer-to-peer filesharing is one thing, but that was followed by the rise of server-based filesharing. When these sites were most active, they relied on the DMCA defense pioneered by YouTube: they would take down copyrighted content as soon as they were notified, but then some anonymous user would post it right back, and the cycle would repeat. Content providers found it very difficult to keep up. YouTube has since implemented a "fingerprinting" system to block most copyrighted content from being posted; should all sites be required to do this? Or at least to provide an interface so content owners can do the scanning?
The SOPA/PIPA laws were proposed back in 2012 to strengthen the hand of content owners. It seems pretty clear that these laws would have had a huge impact on legitimate sites accepting user-posted content. They did not pass.
If the rules are changed to disallow the takedown safe harbor, the resulting effects on other, legitimate websites might be dire. Probably YouTube would manage, and Facebook, but what about Wikipedia? People post all sorts of copyrighted media there (often to the edit-discussion pages; it's tricky to post media content to the actual encyclopedia pages), because for many international users Wikipedia is one of the few user-editable sites their free "Internet" plan allows. What about SoundCloud? What about future SoundCloud-like startups?
(What other sites can you think of that primarily host user-contributed content?)MegaUpload.com, run by Kim Dotcom, was seized by the FBI in 2012, though closely related sites MegaDownload.net and Mega.co.nz are still in business. These sites support server-based file sharing of entire movies: they allow users to upload content (usually pirated) and share it with others. The site was protected by the DMCA, and the users by anonymity. In practice, MegaUpload.com gave away upload space, and
Was Kim Dotcom running an illegal operation? Or did he simply outdo YouTube founders Hurley, Chen and Karim in finding a way to profit legally from the DMCA?
On the other hand, many sites have recently been forced to handle a stream of computer-generated takedown notices. Github was plagued with bizarre DMCA takedown notices a few months ago; many appeared to have been triggered by the use of a word or two in a project's text. Many media sites have received takedown notices which have the primary goal of suppressing a story. Many content creators have received takedown notices for what is clearly Fair Use (incidental background music in an outdoor video, or complaints by game manufacturers about game run-through videos). One proposal is to allow damages if a takedown notice is sent without sufficient justification; that may make life easier for smaller content creators, but harder for Big Content.
There is a penalty for falsely claiming copyright, USC 512(f), but it seems not to be very effective. See blog.ericgoldman.org/archives/2019/04/how-have-section-512f-cases-fared-since-2017-spoiler-not-well.htm. For an example of specious takedowns, see www.improbable.com/2021/09/13/youtube-the-ig-nobel-prizes-and-the-year-1914. It does turn out that 1914 music recordings can be under copyright, but not all those claimants could actually own the copyright in question.
The theory in the Viacom v YouTube decision was that sites are protected unless they are aware of a specific infringing file. Should that rule be relaxed in favor of content providers? If so, how? Wikipedia, after all, depends on a huge amount of user-contributed content. So do many other sites, both commercial and noncommercial. If you propose changes to the DMCA, you should either explain how Wikipedia and YouTube could continue to exist, or else explain why they are too risky to tolerate.
Would it be sufficient to prevent anonymous accounts, so that if someone uploaded copyrighted content and tried to share it, that individual could be sued, or at least prevented from uploading the same content again? Would this even be possible, given that many accounts are free? Do anonymous accounts have a social value?In constructing your paper, one approach is to consider some specific proposals, and then argue either that they would be effective, or that they would not be.
Music sampling takes many forms, but for the purposes of this paper
assume that the samples are of modest length (1-5 seconds). Sometimes an
entire performance is "sampled", as part of a "remix", but that is a
separate case entirely.
Assume the sampling is taken from published recordings; ie the samples are not recreated in the studio.
In 1991, in Grand Upright Music v Warner, a district court ruled that clearly recognizable sampling constituted infringement. In the case Bridgeport Music v Dimension Films, the 6th Circuit Court [the 6th Circuit includes Nashville] ruled in 2005 that use without permission of a 2-second chord from a song by the Funkadelics constituted infringement. More specifically, they ruled that the de minimis defense (ie that the sample was "too small to matter") did not apply. However, the court left open the possibility of a Fair Use defense. (The court left this open because the defense did not raise the Fair Use argument at trial, and you cannot add new arguments on appeal.) The court wrote "Get a license or do not sample.... We do not see this as stifling creativity in any significant way." Is that true? Some observers thought the ruling was strongly influenced by the goal of legal convenience: a flat ban on sampling without permission would eliminate innumerable cases as to just what sampling was allowed.
In 2016, the Ninth Circuit ruled, in VMG Salsoul v Madonna, that the de minimis defense was valid for sampling. But the samples there, in the song Vogue, were horn sounds lasting 0.23 seconds.None of these cases addressed Fair Use. Furthermore, since then, a series of court decisions have expanded Fair Use. In Cariou v Prince, Richard Prince's use of Patrick Cariou's photographs in what is sometimes called a collage was held to be Fair Use; see here in the class notes. Prince's use seems to be rather substantial, as compared to "small-scale" sampling. In Authors Guild v Google Books, the Second Circuit ruled that Google's digitizing of a vast number of books, in order to support search, was Fair Use.
The music industry line here is that any use of copyrighted material requires permission; this gives the rights-holder the opportunity to set a fee limited only by the law of supply and demand. Fair Use is the one exception to this, but is not recognized by the industry and there are few music-related legal cases. While clearly there is no effect whatsoever of modest-length sampling on the market for the original, there might be (and in fact is) a "secondary" market for sampling rights that is affected. The copyright law itself only refers (§107(4)) to "the effect of the use upon the potential market for or value of the copyrighted work". Some have tried to argue that this also includes the market value of any portion of the entire copyrighted work, though this is a stretch.
For a discussion as to why Fair Use sometimes seems to be avoided in music lawsuits, see Edward Lee's Fair Use Avoidance in Music Cases.If you prefer to take an ethical approach, here are a few ideas you might wish to consider. When sampling, what exactly is your obligation to the original artist? Must the sample be some form of homage? If so, why? Is it simply a matter of acknowledging credit for the sample? Can the credit be implicit, or must the original artist's name be spelled out? What if the sampling is not about "homage" at all (as in the Schnauss v Guns 'n Roses case)? Are artists really entitled to royalties when their work is sampled? Is making money from someone else's work without compensation ever permissible? Does it matter if the use in question is of someone's voice, versus an instrumental segment? After all, the instrumental segment can in principle be reproduced by other musicians, but imitating someone else's voice can be impossible.