Pluralistic: 08 Apr 2022

Today's links

A rapidly spinning bus-wheel; Nipper the RCA dog has caught the wheel and is spinning with it, his eyes crazed; the gramophone he is normally pictured listening to is flying off to the upper right.

The Ed Sheeran problem, or, how the record industry got what it asked for (permalink)

You might have seen Ed Sheeran's triumphant statement about his victory in a copyright lawsuit that alleged he'd copied elements of Sami Switch's "Oh Why" in his song "Shape Of You":

Sheeran's statement makes two critical points: first, that there are only so many ways of arranging English words and musical phrases, and 60,000 new songs being released to Spotify every day, there will inevitably be some coincidental duplications of words and melodies.

That's an idea that's been in the air for a hell of a long time. Spider Robinson won a Hugo in 1983 for a short story called "Melancholy Elephants" where the widow of a legendary musician tries to talk a US senator out of extending copyright terms on the grounds that it will result in every copyrightable element of every art-form being under copyright forever:

It's also an idea the record industry fought like hell against. Take the Bridgeport Music case, which resulted in a judgment that a two-second sample, distorted beyond recognition, could still constitute a copyright violation:,_Inc._v._Dimension_Films

The industry long took the position that any taking of any kind should be controlled by the "original artist" – while simultaneously undergoing waves of consolidation that ensured that whoever the "original artist" was, they'd end up signed to one of three labels, in a deal that required them to sign away these ever-expanding rights.

It was inevitable that this would come back to bite them in the ass, and it did. In 2015, the Marvin Gaye estate triumphed in a bizarre case over Pharrell Williams and Robin Thicke's song "Blurred Lines," successfully arguing that while the song didn't take any of Gaye's words or music, it took his vibe:

This opened a floodgate that saw lots of minor artists suing stars because there was some incidental, minor overlap, like a $2.3m judgment against Katy Perry over an eight-note phrase that was similar to phrases in many other songs, including an obscure piece of Christian hiphop (Perry won on appeal).

These suits put the music industry in a bind, forcing them to argue for fair use and other limitations to copyright after decades of arguing against them. The results were often surreal. For example, Warner Chappell repeatedly sent manual copyright takedowns to Youtube to get a video removed on the grounds that it infringed Perry's copyright:

The problem? The video didn't have any of Perry's music in it. Instead, it had the eight-note phrase that Perry was accused of copying, over which Warner Chappell spent millions on legal bills, insisting that it didn't sound anything like Perry's music. What's more, the Youtuber they repeatedly, manually, deliberately targeted was agreeing with them and had included the music to prove it sounded nothing like Perry's song.

The music industry got exactly what it wished for: a world in which the customary borrowing and trading between musicians and their songs was prohibited, with incredibly stiff penalties. To the extent that they'd even considered that this would interfere with normal musical activity, they'd assumed that it wouldn't interfere with their activities, since the three labels would be able to cross-license to one another, and between them, they'd own everything.

But they didn't think it through. They failed to realize that the legal liability regimes they'd created would cut both ways, and that the peripheral acts and businesses – obscure Christian hiphop artists, say – would see the giant labels and their stars as irresistibly juicy targets.

They were the proverbial dog that finally caught the bus, and then had no idea what to do with it.

Which brings me to Sheeran's other important point. He takes partial blame for the "Shape of You" suit, thanks to his decision to settle another baseless suit in 2017, over his song "Photograph." The suit sought $20m, and he judged that a the cost of quick payment was worth avoiding the hassle and risk of a suit.

That, he says, opened the floodgates, as unscrupulous or deluded musicians decided to try their luck and see if they, too, could prise a settlement from him.

But it's no accident that Sheeran settled. Modern copyright law was designed to encourage settlements, with high statutory damages (up to $150k/infringement) that makes the price of an unsuccessful defense certain financial ruin. The record industry used this to its advantage during the Napster wars, when it sued 19,000 children and extracted settlements from nearly every one of them, almost never having to go to court.

Sheeran now says that he's video-recording all of his songwriting sessions to prove he made up his tunes, just as Russian drivers record all their trips with a dashcam in case a scammer jumps in front of their cars and claims they were maimed by careless driving:

But of course, even putting himself under 24/7 surveillance won't help Sheeran if he gets hit with a vibes suit like the Blurred Lines case. As James Boyle and Jennifer Jenkins document in their seminal graphic novel, "THEFT: A History of Music," all music borrows from other music:

And it always has (music scholars' pet name for Brahms's First Symphony is "Beethoven's Tenth Symphony").

For decades, the legal program of the music industry has been to dismantle the process by which music is made, with the idea of rebuilding it within the walls of a very small number of very large companies, who can use their position to extract contractual concessions from creators and assert control over the changing currents of taste and distribution.

In so doing, they created a set of potent legal weapons that can be wielded by people who have even fewer scruples than executives at giant record companies. Make no mistake: copyright trolls are a feature of copyright maximalism, not a bug.

(Image: Kristain Baty, CC BY-SA 2.0, modified)

Hey look at this (permalink)

This day in history (permalink)

#20yrsago Cowardly, vindictive Washington Post journalist anonymously tries to get critical readers fired

#20yrsago The Copyright Office wants to ban iTunes

#10yrsago Latin American leaders, Obama to discuss ending the war on drugs

#10yrsago When you share with Facebook friends, you share with all the apps they use

#5yrsago Wealth inequality is correlated with CO2 emissions

#5yrsago A year later, no action from Chinese company whose insecure PVRs threaten all internet users

#1yrago We CAN have nice things: Why – and how – America's New New Deal should go VERY VERY big

#1yrago Howard Dean's racist, genocidal pharma sellout

Colophon (permalink)

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