Framing is important. The confusions that I have talked about in this book all make an appearance. It starts with the whole controversy being framed by the Internet Threat story line from Chapter 4. Because Judge Kaplan is convinced that every citizen is now a potential infringer, a potentially infectious virus carrier, he is ill disposed to listen to claims about fair use. Civil liberties claims do not do very well in epidemics. It is only right for him to defer to Congress's perception of the problem and the solution, of course. But he buys so deeply into the magnitude of the threat, the extent of the potential piracy pandemic, that it is very hard for him to take seriously the idea that even here there is a legitimate constitutional fair use claim. 81
The Sony Axiom from Chapter 4 is also ignored, or at least undervalued. As I pointed out there, without a robust set of exceptions and limitations on copyright, the idea that cheaper copying requires greater control will inexorably drive us toward the position that the technologies of cheaper reproduction must be put under the governance of copyright holders. The DMCA continues that logic; its drafters concluded that the right to get access to digital works for purposes of making a fair use must be taken from the bundle of rights possessed by citizens, while the right to enjoin both access and the technologies of access is added to those of copyright holders. Never mind the correctness of such a conclusion as a matter of policy. Are there constitutional limitations on Congress taking such an action? Kaplan and Newman in effect tell us, "not yet." 82
More important than the perception of the threat is the understanding of what intellectual property is all about. In Chapter 2, Jefferson warned us that intellectual property rights are not like physical property rights. In analyzing the DMCA, where do we turn for analogies? To physical property, violence, and theft. The cases analyzing the DMCA are full of analogies to trespass, to breaking and entering, to burglars' tools, and to safecrackers. Private property carries a lot of baggage with it, but we know it well—it is the place we naturally turn for insight. Even I, in order to point out some of the difficulties with those analogies, had to turn to farmers and barbed wire and public rights-of-way along highways. There is nothing wrong with analogies. They help us understand things that are new by comparing them to things we think we understand better. Analogies are only bad when they ignore the key difference between the two things being analyzed. That is what happens here. 83
Jefferson reminded us that intellectual property rights are clearly artifacts of state creation, monopolies whose internal limitations in scope, duration, and so on are just as important as the rights themselves. Jefferson doubts whether even property rights over land can be understood as natural and absolute—copyrights and patents, which cover subject matter that can be infinitely reproduced without diminishing its substance, clearly cannot. They frequently involve a claim to control purchasers' behavior with respect to some aspect of an artifact after it has been sold to them in the marketplace, making simpleminded analogies to "breaking and entering" inappropriate—the extent of the property in question is precisely the issue in dispute. (When Johansen was tried in Norway under the national computer crime law, the court laconically observed that he had bought the DVDs, and one cannot break into one's own property—effectively turning the analogy on its head.) Jefferson starts from the baseline that monopoly is the exception and freedom is the rule—any limitations on that freedom have to be justified. That is why he always discusses the right and the limitations on the right as an inseparable pair. One cannot discuss them in isolation. 84
Kaplan and Newman are fine, thoughtful judges. They do not altogether ignore those points. But look how the analysis is set up. At several points in the discussion, there seems to be the assumption that copyright owners have entitlements to total control as of right and that fair use is a mere lucky loophole which, because it can be negated by the happenstance of whether one can get physical access, can hardly have major First Amendment status. They keep pointing out that physical control and tangible property rights frequently allow copyright holders to make fair use impracticable. "And so what?" Jefferson might have responded. This is a classic non sequitur. The question is whether the Congress has the power to add a new right of access- denial to the intellectual property monopoly it is constructing, undermining—as to some works and some fair uses—the balance that the law sets up. The citizen is not pleading for a new right of access, trumping all physical restraint and tangible property rights. The citizen is claiming that Congress has no power to give exclusive rights to restrain copying of digital content while simultaneously taking away the citizen's existing right to get access to that content for the purposes of fair use—at least in those cases where access is physically possible and violates no other property right, real or intellectual. 85
The Constitution does not require the United States to break into President Nixon's desk to get me his tapes, buy me a tape recorder, or give me a right to 18.5 minutes on the broadcast airwaves to play them. But if I can get access to the tapes legally, it does forbid the government from giving President Nixon the power to put a red dot on those tapes and thus claim an intellectual property right to stop me playing them on TV or digitizing them to make the sounds clearer. The restraints imposed by physical happenstance and tangible property rights are different from those imposed by copyright—a congressionally created monopoly over expression. We cannot assume because one is constitutionally acceptable that the others are too. Jefferson understood that, and his analysis can help us even in a constitutional conflict over a technology he could hardly have dreamt of. (Though perhaps with Jefferson, this is a bad bet.) 86
The same point comes up in a different way when the court disconnects the fair use discussion from the exclusive rights discussion. The question is not "Do I have a constitutionally protected right of physical access to a preferred version of a movie, so as to make my task easy?" That gets the court caught up in questions of when a majority of movies will only be available on DVD, or how poor a substitute the analog version would be, or how many fair uses will require actually cutting a digital fence. But all of these inquiries miss the point. The question is "Can Congress hand out the exclusive rights of copyright over digital works if it does not accompany those rights with the suite of limitations that the court has repeatedly said "saves" copyright from violating the First Amendment?" The proportion of digital works to the total number of works produced in other formats is irrelevant. As to these works, the rule is unconstitutional. But what about the number or proportion of types of fair uses affected? That is more relevant but still not dispositive in the way Kaplan and Newman imagined. True, not every trivial statutory modification of fair use makes copyright unconstitutional. But this is not a trivial modification: over an entire class of works, copyright owners are given a legal power to deprive users of their privilege to gain otherwise lawful access for the purposes of fair use. If you give the digital filmmaker the exclusive rights of copyright but forbid the film professor from going through the otherwise lawful process of parodying or quoting, that rule is unconstitutional, no matter how many other fair uses are unaffected. If the copyright law were amended to forbid journalists playing, on a Friday, excerpts of legally acquired red-dotted tapes made by presidents whose last name begins with N, it would still be unconstitutional. 87
The legal implementation of this conclusion would be simple. It would be unconstitutional to punish an individual for gaining access in order to make a fair use. However, if they cut down the digital fence to make illicit copies, both the cutting and the copying would be illegal. But what about the prohibition of trafficking in digital wire cutters, technologies such as DeCSS? There the constitutional question is harder. I would argue that the First Amendment requires an interpretation of the antitrafficking provisions that comes closer to the ruling in the Sony case. If Mr. Johansen did indeed make DeCSS to play DVDs on his Linux computer, and if that were indeed a substantial noninfringing use, then it cannot be illegal for him to develop the technology. But I accept that this is a harder line to draw constitutionally. About my first conclusion, though, I think the argument is both strong and clear. 88
Ironically, there is some support for my claim and it comes from an even higher, if not uniformly more thoughtful, set of judges than Newman and Kaplan. In the depressing case of Eldred v. Ashcroft, the Supreme Court upheld retrospective copyright term extensions against a variety of constitutional challenges. (Full disclosure: I assisted in the preparation of an amicus curiae brief in the case.) One of those challenges was based on the First Amendment. The fairly reasonable claim was that Congress could not retroactively lock up an entire twenty-year swathe of culture that had already been produced. Such a law would be all restraint of expression, performance, republication, adaption, and so on, with no incentive benefits. The Court was unconvinced. But it did say: 89
To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D.C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." . . . But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.14 90
The DMCA, of course, does exactly this. As to digital works it alters the "traditional contours of copyright protection" in a way that affects "copyright's built-in free speech safeguards." That is what the Farmers' Tale was all about. Perhaps one day, in a case not involving a Norwegian teenager, a hacker magazine run by a long-haired editor with an Orwellian nom de plume, and an obscure technology that is accused of posing apocalyptic threats to the American film industry, that point will come out more clearly. 91
But the issue of speech regulation is only half of the story. Intellectual property rights over digital technologies affect not only speech, but the framework of competition and markets as well, as the next example makes clear. 92
The Apple of Forbidden Knowledge: The DMCA and Competition 93
You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Californian Zen-chic the company normally projects. "We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA and other laws."15 94
What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real's Music Store and play them on their own iPods. That's it. So why all the outrage? It turns out that like the story of DeCSS, this little controversy has a lot to teach us about the landscape of intellectual property disputes, about the mental topography of the high-tech economy. But where the DeCSS case was a war of metaphors around the boundaries of freedom of expression, the iPod story is about ways in which intellectual property marks the limits of competition. 95
Apple iPods can be used to store all kinds of material, from word processing documents to MP3 files. If you want to use these popular digital music players to download copy-protected music, though, you have only one source: Apple's iTunes service, which offers songs at 99 cents a pop in the United States, 79 pence in the United Kingdom. If you try to download copy-protected material from any other service, the iPod will refuse to play it. Or at least, that had been the case until Real managed to make their Harmony service compatible. 96
Real's actions meant that consumers had two sources of copy- protected music for their iPods. Presumably all the virtues of competition, including improved variety and lowered prices, would follow. The iPod owners would be happy. But Apple was not. The first lesson of the story is how strangely people use the metaphors of tangible property in new-economy disputes. How exactly had Real "broken into" the iPod? It had not broken into my iPod, which is after all my iPod. If I want to use Real's service to download music to my own device, where's the breaking and entering? 97
What Real had done was make the iPod "interoperable" with another format. If Boyle's word processing program can convert Microsoft Word files into Boyle's format, allowing Word users to switch programs, am I "breaking into Word"? Well, Microsoft might think so, but most of us do not. So leaving aside the legal claim for a moment, where is the ethical foul? 98
Apple was saying (and apparently believed) that Real had broken into something different from my iPod or your iPod. They had broken into the idea of an iPod. (I imagine a small, platonic white rectangle, presumably imbued with the spirit of Steve Jobs.) Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, does figuring out how things work, in order to compete with the original manufacturer, count as breaking and entering? In the strange netherworld between hardware and software, device and product, the answer is often a morally heartfelt "yes!" I would stress "morally heartfelt." It is true manufacturers want to make lots of money and would rather not have competitors. Bob Young of Red Hat claims "every business person wakes up in the morning and says 'how can I become a monopolist?' " Beyond that, though, innovators actually come to believe that they have the moral right to control the uses of their goods after they are sold. This isn't your iPod, it's Apple's iPod. 99
Yet even if they believe this, we don't have to agree. In the material world, when a razor manufacturer claims that a generic razor blade maker is "stealing my customers" by making compatible blades, we simply laugh. The "hacking" there consists of looking at the razor and manufacturing a blade that will fit. To say this is somehow immoral seems laughable. Is the conclusion changed when the information about compatibility is inscribed in binary code and silicon circuits, rather than the molded plastic of a razor cartridge? What if ensuring the "fit" between the two products is not a matter of making sure the new blades snugly connect to the razor but of making sure the software embedded in my generic product sends the right code to the original product in order to be recognized? Our moral intuitions are a little less confident here. All kinds of bad policy can flourish in that area of moral uncertainty. 100
This leads us to the law. Surely Apple's suggestion that the DMCA might prohibit what Real had done is as baseless as their moral argument? In the United States, the answer is "probably," at least if the courts continue in the direction they are currently taking, but it is a closer call than you would think. Internationally, the answer is even less certain. That is where the iPod war provides its second new-economy lesson. Think for a moment about the way that the law shapes the business choices in this dispute. 101
In a competitive market, Apple would choose whether to make the iPod an open platform, able to work with everyone's music service, or to try to keep it closed, hoping to extract more money by using consumers' loyalty to the hardware to drive them to the tied music service. If they attempted to keep it closed, competitors would try to make compatible products, acting like the manufacturers of generic razor blades or printer cartridges. 102
The war would be fought out on the hardware (and software) level, with the manufacturer of the platform constantly seeking to make the competing products incompatible, to bad-mouth their quality, and to use fear, uncertainty, and doubt to stop consumers from switching. (Apple's actual words were: "When we update our iPod software from time to time, it is highly likely that Real's Harmony technology will cease to work with current and future iPods.") Meanwhile the competitors would race to untangle the knots as fast as the platform manufacturer could tie them. If the consumers got irritated enough they could give up their sunk costs and switch to another product altogether. 103
All of this seems fine, even if it represents the kind of socially wasteful arms race that led critics of capitalism to prophesy its inevitable doom. Competition is good and competition will often require interoperability. But what do we mean by competition? Is it competition if I assassinate your employees or poison the food in your restaurant? If I trespass on your land in order to sell a competing product? If I break into your safe to steal your trade secrets, use my monopoly position in the market to impose resale price agreements, or violate your patent? It is the law that draws the line between competition and theft, between virtuous competitive imitation and illicit "piracy." 104
Sometimes we need to give innovators property rights that allow them to prevent second-comers from free riding on their efforts. We have to do so because it is necessary to encourage future innovation. On the other hand, sometimes we not only allow the second-comer to free ride, we positively encourage it, believing that this is an integral part of competition and that there are adequate incentives to encourage innovation without the state stepping in. Intellectual property policy, indeed a large part of the policy behind all property rights, is about drawing the line between the two situations. Too far in one direction and innovation suffers because potential investors realize good ideas will immediately be copied. Too far in the other direction and monopolies hurt both competition and future innovation. 105
Imagine you are the first person to invest in getting the public to eat burritos for breakfast, or to place a petrol station at a certain crossroads, or to clip papers together with a folded bit of wire. In each case we give you some property rights. The fast-food vendor may own a trademarked phrase or jingle that the public learns to associate with his product. Since the patent office issued a patent for the sealed and crimped "peanut butter and jelly" sandwich I described at the beginning of the book, even a patent is not out of the question if your disgusting concoction is sufficiently novel and nonobvious. But we should not allow you to have a patent over all burritos, or burritos for breakfast, still less over the idea of fast food. As for the paper clip maker, there might be a trademark over the particular paper clip, but the idea of folding wire to secure paper stays in the public domain. The owner of the petrol station gets physical ownership of the land, but cannot stop a second-comer from setting up shop across the road, even if the first-comer's labor, capital, and effort proved that the location is a good one. We positively encourage follow-on imitation in those cases. 106
Now how about the case in point? What does Apple get in the way of property rights? Think back to my description of the intellectual property system in Chapter 1. They can get patents over those aspects of the iPod—both hardware and software—that are sufficiently innovative. Patents are what we use to protect inventions. They also get a copyright over the various pieces of software involved. That protects them only against someone who copies their code, not someone who writes new software to do the same thing. Copyrights are what we use to protect original expression. They get rights under trademark law over the name and perhaps parts of the design of the product—maybe the distinctive look of the iPod—though that is a bit more complex. All of these rights, plus being the first to break into the market in a big way, the brilliance of the design, and the tight integration between the hardware and the service, produce a formidable competitive advantage. The iPod is a very good product. 107
Now if a competitor infringes any of Apple's rights, for example by making a literal copy of the code, using their trademark in a way the law does not allow, or infringing on one of their patents, then Apple can shut them down and extract hefty damages. Quite right, too. But should they be able to prevent someone from making an interoperable product, provided they do not violate any of these existing rights in the process? Laws like the DMCA make that question more complicated. 108
Nowadays, there is software in many, many more products than you would imagine. Your watch, your phone, your printer, your thermostat, your garage door opener, your refrigerator, your microwave, your television—the odds are that if you bought them in the last ten years, they have some software component. In the 1970s the courts and Congress had concluded that software could be copyrighted as original expression, like a song or a novel, as well as being patented when it was novel, nonobvious, and useful. Frequently, different aspects of the same program will be covered by copyright and by patent. But software is a machine made of words, the machine of the digital age. That fact already causes some problems for our competition policy. Will the exceptions and limitations designed to deal with a copyright over a novel work adequately when they are applied to Microsoft Windows? That issue was already unclear. With the DMCA, we have added another crucial problem. Where there is copyrighted software there can be digital fences around it. If the copyright owner can forbid people to cut these fences to gain access to the software, then it can effectively enlarge its monopoly, capture tied services, and prohibit generic competition. 109
It was just this line of thought that led some other companies to do more than merely make threatening noises about the DMCA. Lexmark makes printers. But it also makes lots of money off the replacement ink or toner cartridges for those printers. In some cases, in fact, that is where printer companies make the majority of their profits. As a result, they are not exactly keen on generic replacements. Chamberlain makes garage door opener systems. But they also sell replacements for the controllers—the little devices that you use to trigger the door. Lawyers from both of those firms looked at the DMCA and saw a chance to do something most companies would love to do; to make generic competition illegal. Lexmark designed their printer program so that it would not accept a toner cartridge unless it received the correct "checksum" or validation number. So far, this looks no different from the razor manufacturer trying to make it difficult to manufacture a compatible replacement blade. Generic competitors now had to embed chips in their printer cartridges which would produce the correct code, otherwise they would not work in Lexmark printers. 110
Static Control Components is a North Carolina company that manufactures chips whose main function is to send the correct code to the printer program. With this chip implanted in them, generic cartridges would work in Lexmark printers. Lexmark's response could have been to change their program, rendering the chip obsolete, just as Apple could change the iTunes software to lock out Real Music's Rhapsody. Doing so would have been quite within their rights. Indeed it is a standard part of the interoperability wars. Instead, Lexmark sued Static Controls, claiming, among other things, a violation of the DMCA.16 Like Apple in the press release I quoted earlier, Lexmark clearly saw this as a kind of digital breaking and entering. This was their printer, their printer program, their market for replacement cartridges. Static was just helping a bunch of cheats camouflage their generic cartridges as authentic Lexmark cartridges. Translated into the legal language of the DMCA the claim is a little different, but still recognizable. Static was "trafficking" in a device that allowed the "circumvention of a technical protection measure" used to prevent "access to a copyrighted work"—namely the computer program inside the printer. That is behavior that the DMCA forbids. 111
The garage door company, Chamberlain—who also claimed to be concerned about the security of their garage doors—made a similar argument. In order to get the garage door to open, the generic replacement opener had to provide the right code to the program in the actual motor system. That program is copyrighted. The code controls "access" to it. Suddenly, the manufacturers of generic printer cartridges and garage door openers start to look rather like Jon Johansen. 112
Surely the courts did not accept this argument? Bizarrely enough, some of them did—at least at first. But perhaps it was not so bizarre. The DMCA was indeed a radical new law. It did shift the boundaries of power between intellectual property owners and others. And intellectual property rights are always about restraining competition, defining what is legitimate and what is not—that is what they do. There was a respectable argument that these devices did in fact violate the DMCA. In fact, it was respectable enough to convince a federal judge. The district court judge in the Lexmark case concluded that Lexmark was likely to win on both the DMCA claim and on a more traditional copyright claim and issued an injunction against Static Control. In Skylink, the case involving garage door openers, by contrast, the district court held that the universal garage door opener did not violate the DMCA. Both cases were appealed and both appeals courts sided with the generic manufacturers, saying that the DMCA did not prohibit this kind of access—merely making a computer program work the way it was supposed to. 113
The U.S. Court of Appeals for the Federal Circuit (CAFC) heard the Skylink appeal. In a remarkably far-reaching decision, the court effectively took many of the positions that Mr. Corley's lawyers had argued for in the DeCSS case, but they did so not to protect speech, but to protect competition. In fact, they implied that taking Chamberlain's side in the case would silently overrule the antitrust statutes. They also interpreted the new right created by the DMCA so as to add an implicit limitation. In their construction, merely gaining access is not illegal; only gaining access for the purpose of violating the copyright holders' rights violates the statute. The Reimerdes court had been willing to accept that the new access right allows a copyright holder to prohibit "fair uses as well as foul." When Chamberlain made the same argument as to their garage door opener program, the CAFC was incredulous. 114
Such an entitlement [as the one Chamberlain claims] would go far beyond the idea that the DMCA allows copyright owner to prohibit "fair uses . . . as well as foul." Reimerdes, 111 F. Supp. 2d at 304. Chamberlain's proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use. It would, therefore, allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work—or even selected copies of that copyrighted work.17 115
There are multiple ironies here. The CAFC rarely meets an intellectual property right it does not like. It has presided over a twenty-year expansion of American patent law that many scholars find indefensible. But when (for dubious jurisdictional reasons) it sorties beyond its traditional ambit of patent law, it is stunned by the potential expansiveness of the DMCA. Then there is the comparison with the Reimerdes case. How interesting that the First Amendment and concerns about free expression have comparatively little bite when applied to the DMCA, but antitrust and concerns about competition require that we curtail it. After all, the heart of Mr. Johansen's argument was that he had to write the DeCSS program in order to play his own DVDs on his own computer—to get access to his own DVDs, just as the purchaser of a replacement garage door control is getting access to the program that operates his own garage door. Indeed, Mr. Johansen's criticism of CSS was that it allowed the movie companies, "through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work." Mr. Corley echoed those claims. 116
Of course, the situations are not identical. The key limitation in Skylink is that the court saw no threat of "foul use." The Reimerdes court could see little else. On the other hand, the rulings are not easily reconciled. The Skylink court cannot imagine that Congress would want to give the copyright holder a new "property" right to prevent access unconnected to any underlying copyright violation. 117
As we have seen, Congress chose to create new causes of action for circumvention and for trafficking in circumvention devices. Congress did not choose to create new property rights. . . . Were we to interpret Congress's words in a way that eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized. 118
Yet, arguably, that is exactly what the Reimerdes decision does, precisely because it focuses on enabling access alone, not access for the purpose of violating one of the rights of the copyright holder. The Reimerdes court saw a violation of the law just in cutting the wire or making a wire cutter. The Skylink court focused on whether the person cutting the wire was going to trespass once the cutting was done. In effect, the two courts disagree on which of the options offered to the legislature in the Farmers' Tale was actually enacted by Congress. Which court is correct? The Skylink decision strikes me as sensible. It also makes the statute constitutionally much more defensible—something that the Skylink court does not consider. But in the process, it has to rewrite the DMCA substantially. One should not presume that it will be this interpretation that will triumph. 119
SUMMING UP: EXAGGERATIONS,HALF-TRUTHS, AND BIPOLAR DISORDERSIN TECHNOLOGY POLICY120
Let me return to the question with which I began the chapter. For many critics of contemporary intellectual property law, the DMCA is the very embodiment of all that is wrong. (I still cherish a friend's account of British protesters outside the American Embassy in London singing "D-M-C-A" to the tune of the Village People's "YMCA" and holding up signs calling for the law's repeal—to the great confusion of the diplomatic personnel.) The critics conjure up a digital apocalypse—a world of perfect control achieved through legally backed digital fences, in which both speech and competition suffer, and where citizens lose privacy, the privilege of fair use, and the right to criticize popular culture rather than simply consume it. In their view, the legal disaster is only exacerbated by bumbling judges who do not understand the technology and who are easily fooled by the doom-laden rhetoric of the content companies. The DMCA's supporters, on the other hand, think criticisms of the DMCA are overblown, that the dark tales of digital control are either paranoid delusions or tendentious exaggerations, and that far from being excessive, the DMCA's provisions are not sufficient to control an epidemic of illicit copying. More draconian intervention is needed. As for fair use, as I pointed out before, many of the DMCA's supporters do not think fair use is that important economically or culturally speaking. At best it is a "loophole" that copyright owners should have the right to close; certainly not an affirmative right of the public or a reserved limitation on the original property grant from the state. 121
Who is right? Obviously, I disagree profoundly with the DMCA's supporters. I wrote this book partly to explain—using Jefferson and Macaulay and the Sony case—what was wrong with their logic. It would be both convenient and predictable for me to claim that the DMCA is the intellectual property incarnation of the Antichrist. But it would not be true. In fact, I would not even put the DMCA in the top three of bad intellectual property initiatives worldwide. And many of the fears conjured up about it are indeed overblown. 122
Of course, the critics have a point. The DMCA is a very badly drafted law. As I have tried to show here, its key provisions were probably unnecessary and are, in my view, unconstitutional. If coupled with a number of other legal "innovations" favored by the content industry, the DMCA could play a very destructive role. In general, in fact, the Farmers' Tale is fairly accurate in describing both the origins of and the threats posed by the DMCA. Yet the single largest of those threats—the idea that the DMCA could be used to fence off large portions of the public domain and to make the fair use provisions of the Copyright Act essentially irrelevant—is still largely a threat rather than a reality. In some cases, fair use rights are curtailed. But for most citizens and for the majority of media, the DMCA has had relatively little effect. Digital rights management (DRM) certainly exists; indeed it is all around us. You can see that every time you try to play a DVD bought in another part of the world, open an Adobe eBook, or copy a song you have downloaded from iTunes. But so far, the world of legally backed digital rights management has not brought about the worst of the dystopian consequences that some people, including me, feared might result. 123
In many cases, citizens simply reject digital rights management. They will not buy products that use it. Attempts to introduce it into music CDs, for example, have been a resounding failure. In other cases, DRM has not been used in ways that the critics feared. There are genuine scandals, of course—cryptography research has been chilled, the DMCA has been turned to anticompetitive ends, and so on. It is also troubling to see federal judges issuing injunctions not only against banned material but also against those who link to the banned material. Somehow the blithe reassurance that this is consistent with the First Amendment fails to comfort one. But many of the evils prophesied for the DMCA remain as just that: prophecies. 124
There are also entries on the positive side of the ledger. The "safe-harbors" that the DMCA gave Internet service providers and search services have been a vital and positive force in the development of the Internet. It may even be true that in some cases, such as iTunes, the DMCA did what its backers claimed it would—encourage new provision of digital content by reassuring the record companies that they could put their music online surrounded by legally backed digital rights management. (Notably, however, the trend is now going the other way. Companies are coming to realize that many consumers prefer, and will pay more for, unprotected MP3 files.) 125
Of course, depending on your view of the music industry, that might seem like a mixed blessing. One might also wonder if the same consumer benefits might have been produced with a much less restrictive law. But with the exception of a few important areas—such as cryptography research, where its effects are reported to be severe—I would have to say that the criticisms focus too much on the DMCA, to the exclusion of the rest of the intellectual property landscape. Yes, the DMCA offers enormous potential for abuse, particularly in conjunction with some other developments in intellectual property that I will discuss later, but much of the abuse has not yet happened. Yet even if it never did happen, the DMCA has important lessons to teach us. 126
In this section I have tried to show how legal rules—particularly intellectual property rules—define the boundaries of legitimate competition. We used to assume that this was principally the function of patent and trademark law, less so of copyright. Of course, copyright would affect competition in publishing and in the TV and movie industries, but it hardly seemed central to competition policy in general. But once courts and legislatures accepted that software is copyrightable, that assessment changed. The levers and cogs of the machines of the modern economy are forged out of ones and zeros instead of steel and brass. In that situation, copyright is central to the competition policy of a high-tech economy. 127
As the Apple case shows, our moral intuitions about competition are going to be cloudier in the world of digital content and cyberspace. The same is true of the law. Even in the material world it can be hard to draw the line between the legitimate and ruthless pursuit of commercial advantage and various forms of unfair competition, antitrust violations, and so on. But in the immaterial world, the boundaries are even harder to draw. Is this the digital equivalent of trespass or legitimate passage on a public road that runs through your property? As I pointed out earlier, the constant analogies to physical property are likely to conceal as much as they reveal. Is this virtuous competitive imitation or illicit copying? We have strong, and by no means coherent, moral and legal intuitions about the answers to such questions. And our legal structure often gives us the raw material to make a very good case for both sides of the argument. 128
Into this already troubled situation, with a set of rules designed for original expression in novels and poems being applied to machines made of computer code, we add the DMCA and its new rights of uncertain extent. Copyright had a well- developed set of exceptions to deal with anticompetitive behavior. Where the existing exceptions did not function, courts tended to turn to fair use as the universal method for patching the system up—the duct tape of the copyright system. Without an evolving idea of fair use, copyright would overshoot its bounds as it was applied to new technologies and new economic conditions. Indeed that was the point of the Sony Axiom. The DMCA threw this system into disarray, into a war of competing metaphors. 129
The Skylink court sees monopolists being handed carte blanche to abolish the restraints on their monopolies. Competition policy demands that we construe the DMCA narrowly. The Reimerdes court sees a virus masquerading as speech, a digital pandemic that must be stopped at all costs by a draconian program of electronic public health. Each proceeds to construe the statute around the reality they have created. It is by no means certain which metaphor will win the day, still less which resolution will triumph in other countries that have passed versions of the DMCA. International attitudes toward speech, competition, and the necessary exceptions in a copyright system vary widely. Yet backed by the story of the Internet Threat, the content companies are already saying that we need to go further both nationally and internationally—introducing more technology mandates, requiring computers to have hardware that will only play approved copyrighted versions, allowing content companies to hack into private computers in search of material they think is theirs, and so on. Remember the suggestion from the beginning of the chapter, that all cars be assumed to be getaway vehicles for the felonious filchers of vegetables, and thus that they should be fitted with radio beacons, have the size of their cargo space reduced, and so on? The Farmers' Tale continues to evolve.
So far, I have talked about the root ideas of intellectual property. I have talked about its history, about the way it influences and is influenced by technology. I have talked about its effects on free speech and on competition. Until now, however, I have not described the way that it actually affects culture. This chapter aims to rectify the omission, looking at the way copyright law handles one specific form of cultural creation—music. It turns out that some of the problems identified in Chapters 4 and 5 are not simply the result of a mismatch between old law and new technology, or the difficulties posed in applying copyright to software, to machines made of words. The same issues appear at the heart of a much older cultural tradition. 2
This is the story of a song and of that song's history. But it is also a story about property and race and art, about the way copyright law has shaped, encouraged, and prohibited music over the last hundred years, about the lines it draws, the boundaries it sets, and the art it forbids. 3
Music is hard for copyright law to handle. If one had to represent the image of creativity around which copyright law and patent law, respectively, are built, patent law's model of creativity would be a pyramid and copyright law's a fountain, or even an explosion. 4
In patent law, the assumption is that technological development converges. Two engineers from two different countries tend to produce similar ways of catching mice or harnessing the power of steam. There are a limited number of good ways of accomplishing a technical task. In addition, technological progress is assumed to be incremental. Each development builds on the ones behind it. Based on this image, patent law makes a series of decisions about what gets covered by property rights, for how long, how to handle "subsequent improvements," and so on. Patent rights last for a short time, not only to lower costs to consumers, but because we want to build on the technology inventors have created as soon as possible, without getting their permission. Even during the patent term, subsequent "improvers" get their own rights and can bargain with the original patent holder to share the profits. 5
Copyright's assumptions are different. Copyright began with texts, with creative expression. Here the assumption is (generally) that there are infinite possibilities, that two writers will not converge on the same words, and that the next generation of storytellers does not need to take the actual "stuff" that copyright covers in order to make the next play or novel. (It may be because of this image that so few policy makers seem to worry that copyright now lasts for a very long time.) Subsequent "improvements" of copyrighted material are called derivative works, and without the rights holder's permission, they are illegal. Again, the assumption seems to be that you can just write your own book. Do not claim you need to build on mine. 6
Of course, each of these pictures is a caricature. The reality is more complex. Copyright can make this assumption more easily because it does not cover ideas or facts—just their expression. "Boy meets girl, falls in love, girl dies" is not supposed to be owned. The novel Love Story is. It is assumed that I do not need Erich Segal's copyrighted expression to write my own love story. Even if literary creativity does converge around standard genres, plots, and archetypes, it is assumed that those are in the public domain, leaving future creators free to build their own work without using material that is subject to copyright. We could debate the truth of that matter for literature: the expansion of copyright's ambit to cover plotlines and characters makes it more questionable. Certainly many recognized forms of creativity, such as the pastiche, the collage, the literary biography, and the parody need extensive access to prior copyrighted work. But regardless of how well we think the image of individual creativity fits literature, it fits very poorly in music where so much creativity is recognizably more collective and additive, and where much of the raw material used by subsequent creators is potentially covered by copyright. 7
So how does the accretive process of musical creativity fare in the modern law and culture of copyright? How would the great musical traditions of the twentieth century—jazz, soul, blues, rock—have developed under today's copyright regime? Would they have developed at all? How does the law apply to the new musicians, remixers, and samplers who offer their work on the Internet? Do the lines it draws fit with our ethics, our traditions of free speech and commentary, our aesthetic judgments? It would take a shelf of books to answer such questions definitively. In this chapter, all I can do is suggest some possibilities—using the history of a single song as my case study. 8
—————————————————- 9
On August 29th, 2005, a hurricane made landfall in Louisiana. The forecasters called it "Hurricane Katrina," quickly shortened to "Katrina" as its story took over the news. The New Orleans levees failed. Soon the United States and then most of the world was watching pictures of a flooded New Orleans, seeing pleading citizens—mainly African-American—and a Keystone Cops response by the Federal Emergency Management Agency. The stories from New Orleans became more and more frightening. There were tales not only of natural disaster—drownings, elderly patients trapped in hospitals—but of a collapse of civilization: looting, murder and rape, stores being broken into with impunity, rescue helicopters fired upon, women and children sexually assaulted in the convention center where many of the refugees huddled. Later, it would turn out that many, perhaps most, of these reports were untrue, but one would not have guessed that from the news coverage. 10
The television played certain images over and over again. People—again, mainly African-Americans—were portrayed breaking into stores, pleading from rooftops, or later, when help still had not arrived, angrily gesturing and shouting obscenities at the camera. 11
As the disaster unfolded in slow motion, celebrities began appearing in televised appeals to raise money for those who had been affected by the storm. Kanye West, the hip hop musician, was one of them. Appearing on NBC on September 2, with the comedian Mike Myers, West started out seeming quietly upset. Finally, he exploded. 12
I hate the way they portray us in the media. You see a black family, it says, "They're looting." You see a white family, it says, "They're looking for food." And, you know, it's been five days [waiting for federal help] because most of the people are black. . . . So anybody out there that wants to do anything that we can help—with the way America is set up to help the poor, the black people, the less well-off, as slow as possible. I mean, the Red Cross is doing everything they can. We already realize a lot of people that could help are at war right now, fighting another way—and they've given them permission to go down and shoot us!
13
Myers, who, according to the Washington Post, "looked like a guy who stopped on the tarmac to tie his shoe and got hit in the back with the 8:30 to LaGuardia," filled in with some comments about the possible effect of the storm on the willingness of Louisiana citizens to live in the area in the future. Then he turned back to West, who uttered the line that came to epitomize Katrina for many people around the world, and to infuriate a large number of others. "George Bush doesn't care about black people!" Myers, the Post wrote, "now look[ed] like the 8:30 to LaGuardia turned around and caught him square between the eyes."1 In truth, he did appear even more stunned than before, something I would not have thought possible. 14
In Houston, Micah Nickerson and Damien Randle were volunteering to help New Orleans evacuees at the Astrodome and Houston Convention Center during the weekend of September 3. They, too, were incensed both by the slowness of the federal response to the disaster and by the portrayal of the evacuees in the media. But Mr. Nickerson and Mr. Randle were not just volunteers, they were also a hip-hop duo called "The Legendary K.O." What better way to express their outrage than through their art? An article in the New York Times described their response. 15
"When they got to Houston, people were just seeing for the first time how they were portrayed in the media," said Damien Randle, 31, a financial adviser and one half of the Legendary K.O. "It was so upsetting for them to be up on a roof for two days, with their kids in soiled diapers, and then see themselves portrayed as looters." In response, Mr. Randle and his partner, Micah Nickerson, wrote a rap based on the stories of the people they were helping. On Sept. 6, Mr. Nickerson sent Mr. Randle an instant message containing a music file and one verse, recorded on his home computer. Mr. Randle recorded an additional verse and sent it back, and 15 minutes later it was up on their Web site: www.k-otix.com.2 16
The song was called "George Bush Doesn't Care About Black People" (also referred to as "George Bush Doesn't Like Black People"). Appropriately, given that Mr. West was the one to come up with the phrase, the song was built around Mr. West's "Gold Digger." Much of the melody was sampled directly from the recording of that song. Yet the words were very different. Where "Gold Digger" is about a predatory, sensual, and materialist woman who "take[s] my money when I'm in need" and is a "triflin' friend indeed," The Legendary K.O.'s song is a lyrical and profane condemnation of the response to Katrina by both the government and the media. Here is a sample: 17
Five days in this motherf__ atticCan't use the cellphone I keep getting staticDying 'cause they lying instead of telling us the truthOther day the helicopters got my neighbors off the roofScrewed 'cause they say they coming back for us tooThat was three days ago, I don't see no rescueSee a man's gotta do what a man's gotta doSince God made the path that I'm trying to walk throughSwam to the store, tryin' to look for foodCorner store's kinda flooded so I broke my way throughI got what I could but before I got throughNews say the police shot a black man trying to loot(Who!?) Don't like black peopleGeorge Bush don't like black peopleGeorge Bush don't like black people
18
This chapter is the story of that song. "George Bush Doesn't Care About Black People" is the end (for the moment) of a line of musical borrowing. That borrowing extends far beyond Kanye West's song "Gold Digger." "Gold Digger" is memorable largely because it in turn borrows from an even older song, a very famous one written half a century before and hailed by many as the birth of soul music. It is in the origins of that song that we will start the trail. 19
I GOT A WOMAN 20
In 1955, Ray Charles Robinson, better known as Ray Charles, released a song called "I Got a Woman." It was a defining moment in Charles's musical development. Early in his career he had unashamedly modeled himself on Nat King Cole. 21
I knew back then that Nat Cole was bigger than ever. Whites could relate to him because he dealt with material they understood, and he did so with great feeling. Funny thing, but during all these years I was imitating Nat Cole, I never thought twice about it, never felt bad about copying the cat's licks. To me it was practically a science. I worked at it, I enjoyed it, I was proud of it, and I loved doing it. He was a guy everyone admired, and it just made sense to me, musical and commercial sense, to study his technique. It was something like when a young lawyer—just out of school—respects an older lawyer. He tries to get inside his mind, he studies to see how he writes up all his cases, and he's going to sound a whole lot like the older man—at least till he figures out how to get his own shit together. Today I hear some singers who I think sound like me. Joe Cocker, for instance. Man, I know that cat must sleep with my records. But I don't mind. I'm flattered; I understand. After all, I did the same thing.3 22
In the early 50s Charles decided that he needed to move away from Cole's style and find his own sound, "sink, swim or die." But as with any musician, "his own sound" was the product of a number of musical traditions—blues and gospel particularly. It is out of those traditions that "I Got a Woman" emerged; indeed it is that combination that causes it to be identified as one of the birthplaces of soul music. 23
According to the overwhelming majority of sources, "I Got a Woman" stems from a fairly overt piece of musical borrowing—Charles reworded the hymn "Jesus Is All the World to Me"—sometimes referred to as "My Jesus Is All the World to Me." 24
Musically, soul denotes styles performed by and for black audiences according to past musical practices reinterpreted and redefined. During its development, three performers played significant roles in shaping its sound, messages, and performance practice: Ray Charles, James Brown, and Aretha Franklin. If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded "My Jesus Is All the World to Me," changing its text to "I Got A Woman."4 25
That story is repeated in the biography on Charles's Web site. "Charles reworded the gospel tune 'Jesus Is All the World to Me' adding deep church inflections to the secular rhythms of the nightclubs, and the world was never the same."5 Michael Lydon, Charles's most impressive biographer, simply reports that "Jesus Is All the World to Me" is described as the song's origin in another published source,6 and this origin is cited repeatedly elsewhere in books, newspaper articles, and online,7 though the most detailed accounts also mention Renald Richard, Charles's trumpeter, who is credited with co-writing the song.8 26
To secular ears, "Jesus Is All the World to Me" is a plodding piece of music with a mechanical, up-and-down melodic structure. It conjures up a bored (and white) church audience, trudging through the verses, a semitone flat, while thinking about Sunday lunch rather than salvation. It is about as far removed as one could be from the syncopated beat and amorous subject matter of "I Got a Woman." The hymn was the product of Will Lamartine Thompson—a severe-looking fellow with a faint resemblance to an elderly Doc Holliday—who died in 1909 and is buried in the same place he was born, East Liverpool, Ohio. But the words have an earnestness to them that gives life to the otherwise uninspired verse. 27
Jesus is all the world to me, my life, my joy, my all;He is my strength from day to day, without Him I would fall.When I am sad, to Him I go, no other one can cheer me so;When I am sad, He makes me glad, He's my Friend.28
Reading those words, one can understand the sincerity that made Mr. Thompson spurn commercial publishers for his devotional music, instead founding his own publishing house (also in East Liverpool) to make sure that his hymns reached the people. I can quote as much of the song as I want without worrying about legal consequences because the copyright on Mr. Thompson's lyrics has expired. So has the copyright over the music. The song was published in 1904. Copyright had only been extended to musical compositions in 1881. Like all copyrights back then, copyright over music lasted for only twenty-eight years, with a possible extension for another fourteen. If Ray Charles did indeed reword it fifty years later, he was doing nothing illegal. It had been in the public domain for at least eight years, and probably for twenty. Now maybe Charles's genius was to hear in this hymn, or in a syncopated gospel version of this hymn, the possibility of a fusion of traditions which would itself become a new tradition—soul. Or perhaps his genius was in knowing a good idea—Richard's—when he heard it, and turning that idea into the beginnings of its own musical genre. 29
Soul is a fusion of gospel on the one hand and rhythm and blues on the other. From gospel, soul takes the call-and-response pattern of preacher and congregation and the wailing vocals of someone "testifying" to their faith. From rhythm and blues it takes the choice of instruments, some of the upbeat tempo, and the distinctly worldly and secular attitude to the (inevitable) troubles of life. Musicologists delight in parsing the patterns of influence further; R&B itself had roots in "jump music" and the vocal style of the "blues shouters" who performed with the big bands. It also has links to jazz. Gospel reaches back to spirituals and so on. 30
As with all music, those musical traditions can be traced back or forward in time, the net of influence and borrowing widening as one goes in either direction. In each, one can point to distinctive musical motifs—the chords of the twelve-bar blues, or the flattened fifth in bebop. But musical traditions are also defined by performance styles and characteristic sounds: the warm guitar that came out of the valve amplifiers of early funk, the thrashing (and poorly miked) drums of '80s punk, or the tinny piano of honky-tonk. Finally, styles are often built around "standards"—classic songs of the genre to which an almost obligatory reference is made. My colleague, the talented composer Anthony Kelley, uses Henry Louis Gates's term "signifyin' " to describe the process of showing you are embedded in your musical tradition by referring back to its classics in your playing. In jazz, for example, one demonstrates one's rootedness in the tradition by quoting a standard, but also one's virtuosity in being able to trim it into a particular eight-bar solo, beginning and ending on the right note for the current moment in the chord progression. "I Got Rhythm" and "Round Midnight" are such songs for jazz. (The chord changes of "I Got Rhythm" are so standard, they are referred to as "the rhythm changes"—a standard basis for improvisation.) And to stretch the connections further, as Kelley points out, the haunting introduction to "Round Midnight" is itself remarkably similar to Sibelius's Fifth Symphony. 31
Through all these layers of musical borrowing and reference, at least in the twentieth century in the United States, runs the seam of race. When white musicians "borrowed" from soul to make "blue-eyed soul," when Elvis took songs and styles from rhythm and blues and turned them into rockabilly, a process of racial cleansing went on. Styles were adapted but were cleansed of those elements thought inappropriate for a larger white audience. Generally, this involved cutting some of the rawer sensuality, removing racially specific verbal and musical references, and, for much of the century, cutting the African- American artists out of the profits in the process. 32
There is another irony here. Styles formed by patterns of gleeful borrowing, formed as part of a musical commons—the blues of the Mississippi Delta, for example—were eventually commercialized and "frozen" into a particular form by white artists. Sometimes those styles were covered with intellectual property rights which denied the ability of the original community to "borrow back." In the last thirty or forty years of the century, African-American artists got into the picture too, understandably embracing with considerable zeal the commercial opportunities and property rights that had previously been denied to them. But aside from the issue of racial injustice, one has to consider the question of sustainability. 33
In other work, I have tried to show how a vision of intellectual property rights built around a notion of the romantic author can sometimes operate as a one-way valve vis-à-vis traditional and collective creative work.9 There is a danger that copyright will treat collectively created musical traditions as unowned raw material, but will then prevent the commercialized versions of those traditions—now associated with an individual artist—from continuing to act as the basis for the next cycle of musical adaptation and development. One wonders whether jazz, blues, R&B, gospel, and soul would even have been possible as musical styles if, from their inception, they had been covered by the strong property rights we apply today. That is a question I want to return to at the end of this chapter. 34
Musical styles change over time and so do their techniques of appropriation. Sometimes musical generations find their successors are engaging in different types of borrowing than they themselves engaged in. They do not always find it congenial. It is striking how often musicians condemn a younger generation's practice of musical appropriation as theft, while viewing their own musical development and indebtedness as benign and organic. James Brown attacked the use of his guitar licks or the drum patterns from his songs by hip-hop samplers, for example, but celebrated the process of borrowing from gospel standards and from rhythm and blues that created the "Hardest Working Man in Show Business"—both the song and the musical persona. To be sure, there are differences between the two practices. Samplers take a three-second segment off the actual recording of "Funky Drummer," manipulate it, and turn it into a repeating rhythm loop for a hip-hop song. This is a different kind of borrowing than the adaptation of a chord pattern from a gospel standard to make an R&B hit. But which way does the difference cut as a matter of ethics, aesthetics, or law? 35
Charles himself came in for considerable criticism for his fusion of gospel intonations and melodic structures with the nightclub sound of rhythm and blues, but not because it was viewed as piracy. It was viewed as sacrilegious. 36
Charles totally removed himself from the polite music he had made in the past. There was an unrestrained exuberance to the new Ray Charles, a fierce earthiness that, while it would not have been unfamiliar to any follower of gospel music, was almost revolutionary in the world of pop. Big Bill Broonzy was outraged: "He's crying, sanctified. He's mixing the blues with the spirituals. He should be singing in a church."10 37
Charles disagreed. "You can't run away from yourself. . . . What you are inside is what you are inside. I was raised in the church and was around blues and would hear all these musicians on the jukeboxes and then I would go to revival meetings on Sunday morning. So I would get both sides of music. A lot of people at the time thought it was sacrilegious but all I was doing was singing the way I felt."11 Why the charge of sacrilege? Because beyond the breach of stylistic barriers, the relationships Charles described did not seem to belong in church. 38
"I Got a Woman" tells of a woman, "way over town," who is good to the singer—very good, in fact. She gives him money when he is in need, is a "kind of friend indeed," even saves her "early morning loving" just for him (and it is tender loving at that). In the third verse we learn she does not grumble, fuss, or run in the streets, "knows a woman's place is right there now in the home," and in general is a paragon of femininity. Gender roles aside, it is a fabulous song, from the elongated "We-e-ell . . ." in Charles's distinctive tones, to the momentary hesitation that heightens the tension, all the way through the driving beat of the main verses and the sense that a gospel choir would have fit right in on the choruses, testifying ecstatically to the virtues of Charles's lady friend. Charles liked women—a lot of women, according to his biographers—and a lot of women liked him right back. That feeling comes through very clearly from this song. 39
I would like to quote the song lyrics for you, just as I did the words of the hymn, but that requires a little more thought. Charles's song was released in 1955. By that time, the copyright term for a musical composition was twenty-eight years, renewable for another twenty-eight if the author wished. (Later, the twenty-eight-year second term would be increased to forty-seven years. Still later, the copyright term would be extended to life plus seventy years, or ninety-five years for a "work for hire." Sound recordings themselves would not be protected by federal law until the early 1970s.) Anyone who wrote or distributed a song under the "28 ??28" system was, in effect, saying "this is a long enough protection for me," enough incentive to create. Thus, we could have assumed that "I Got a Woman" would enter the public domain in either 1983 or, if renewed, 2011. Unfortunately for us, and for a latter-day Ray Charles, the copyright term has been extended several times since then, and each time it was also extended retrospectively. Artists, musicians, novelists, and filmmakers who had created their works on the understanding that they had twenty-eight or fifty-six or seventy-five years of protection now have considerably more. This was the point raised in Chapter 1. Most of the culture of the twentieth century, produced under a perfectly well-functioning system with much shorter copyright terms, is still locked up and will be for many years to come. 40
In the case of "I Got a Woman," it is now about fifty years since the song's release—the same length of time as between Thompson's hymn and Charles's alleged "rewording." If the words and music were properly copyrighted at the time of its publication, and renewed when appropriate, the copyright still has forty-five years to run. No one will be able to "reword" "I Got a Woman" and use it to found a new genre, or take substantial portions of its melody, until the year 2050. The freedoms Ray Charles says he used to create his song are denied to his successors until nearly a century after the song's release. (As we will see in a moment, this put certain constraints on Kanye West.) 41
Would it truly be a violation of copyright for me to quote the middle stanza in a nonfiction book on copyright policy? Not at all. It is a classic "fair use." In a moment I will do so. But it is something that the publisher may well fuss over, because copyright holders are extremely aggressive in asking for payments for the slightest little segment. Copyright holders in music and song lyrics are among the most aggressive of the lot. Year after year academics, critics, and historians pay fairly substantial fees (by our standards) to license tiny fragments of songs even though their incorporation is almost certainly fair use. Many of them do not know the law. Others do, but want to avoid the hassle, the threats, the nasty letters. It is simpler just to pay. 42
Unfortunately, these individual actions have a collective impact. One of the factors used to consider whether something is a fair use is whether or not there is a market for this particular use of a work. If there is, it is less likely to be a fair use to quote or incorporate such a fragment. As several courts have pointed out, there is a powerful element of circularity here. You claim you have a right to stop me from doing x—quoting two lines of your three-verse song in an academic book, say. I say you have no such right and it is a fair use. You say it is not a fair use because it interferes with your market—the market for selling licenses for two- sentence fragments. But when do you have such a market? When you have a right to stop me quoting the two-sentence fragment unless I pay you. Do you have such a right? But that is exactly what we are trying to decide! Is it a fair use or not? The existence of the market depends on it not being a fair use for me to quote it without permission. To say "I would have a market if I could stop you doing it, so it cannot be a fair use, so I can stop you" is perfectly circular. 43
How do we get out of the circle? Often the court will look to customs and patterns in the world outside. Do people accept this as a market? Do they traditionally pay such fees? Thus, if a lot of people choose to pay for quotes that actually should have been fair use, the "market" for short quotes will begin to emerge. That will, in turn, affect the boundaries of fair use for the worse. Slowly, fair use will constrict, will atrophy. The hypertrophied permissions culture starts as myth, but it can become reality. 44
In any event, Ray Charles had no need of fair use to make "I Got a Woman" because the hymn his biography claims it is based on was in the public domain. But is that the real source? I can hear little resemblance. As I researched the origins of "I Got a Woman," I found claims that there was a different source, a mysterious song by the Bailey Gospel Singers, or the Harold Bailey Gospel Singers, called "I've Got a Savior."12 The Columbia Records gospel catalogue even provided a catalogue number.13 There was such a song, or so it seemed. But there the research stalled. The exemplary librarians at Duke University Music Library could find no trace. Catalogues of published records showed nothing. Inquiries to various music librarian listservs also produced no answer. There was a man called Harold Bailey, who sang with a group of gospel singers, but though several Internet postings suggested he was connected to the song, his biography revealed he would have been only thirteen at the time. The Library of Congress did not have it. Eventually, Jordi Weinstock—a great research assistant who demonstrated willingness to pester anyone in the world who might conceivably have access to the recording—hit gold. The Rodgers and Hammerstein Archives of Recorded Sound at the New York Public Library for the Performing Arts had a copy—a 78 rpm vinyl record by the Bailey Gospel Singers with "Jesus Is the Searchlight" on the B-side. Our library was able to obtain a copy on interlibrary loan from the helpful curator, Don McCormick. 45
It sounds like the same song. Not the same words, of course: the introduction is different and the Bailey Gospel Singers lack the boom-chicky-boom backing of Charles's version, but the central melody is almost exactly the same. When the Bailey Gospel Singers sing "Keeps me up / Keeps me strong / Teach me right / When I doing wrong / Well, I've got a savior / Oh what a savior / yes I have," the melody, and even the intonation, parallel Charles singing the equivalent lines: "She gimme money / when I'm in need / Yeah she's a kind of / friend indeed / I've got a woman / way over town / who's good to me." 46
True, some of the lyrical and rhythmic patterns of "I've Got a Savior" are older still. They come from a spiritual called "Ain't That Good News," dating from 1940, which rehearses all the things the singer will have in the Kingdom of Heaven—a harp, a robe, slippers (!), and, finally, a savior. The author of "I've Got a Savior" was, like all the artists discussed here, taking a great deal from a prior musical tradition. Nevertheless, Charles's borrowing is particularly overt and direct. The term "rewording" is appropriate. So far as I can see, whether or not he also relied on a fifty-year-old hymn, Ray Charles appears to have taken both the melody and lyrical pattern of his most famous hit from a song that was made a mere three or four years earlier. 47
Like many 78 rpm records, this one was sold without liner notes. The center of the record provides the only details. It gives the name of the track and the band and a single word under the song title, "Ward"—presumably the composer. "Ward" might be Clara Ward of the Ward Singers, a talented gospel singer and songwriter who became Aretha Franklin's mentor and who had her own music publishing company. 48
There is a particular reason to think that she might have written the song: Ray Charles clearly liked to adapt her music to secular ends. We know that he "reworked" Ward's gospel classic "This Little Light of Mine" into "This Little Girl of Mine." Ward reportedly was irritated by the practice. So far as we know, the copying of the music did not annoy her because she viewed it as theft, but because she viewed it as an offense against gospel music. 49
Charles is now starting to get criticism from some gospel music performers for secularizing gospel music and presenting it in usual R&B venues. Most adamant in her misgivings is Clara Ward who complains about "This Little Girl Of Mine" being a reworking of "This Little Light Of Mine" (which it is), as a slap against the gospel field.14 50
This stage of Charles's career is described, rightly, as the moment when his originality bursts forth, where he stops imitating the smooth sounds of Nat King Cole and instead produces the earthy and sensual style that becomes his trademark—his own sound. That is true enough; there had been nothing quite like this before. Yet it was hardly original creation out of nothing. Both Charles himself and the musicological literature point out that "his own sound," "his style," is in reality a fusion of two prior genres—rhythm and blues and gospel. But looking at the actual songs that created soul as a genre shows us that the fusion goes far beyond merely a stylistic one. Charles makes some of his most famous songs by taking existing gospel classics and reworking or simply rewording them. "I've Got a Savior" becomes "I Got a Woman." "This Little Light of Mine" becomes "This Little Girl of Mine." 51
The connection is striking: two very recent gospel songs, probably by the same author, from which Charles copies the melody, structure, pattern of verses, even most of the title—in each case substituting a beloved sensual woman for the beloved deity. Many others have noticed just how closely Charles based his songs on gospel tunes, although the prevalence of the story that "I Got a Woman" is derived from an early-twentieth-century hymn caused most to see only the second transposition, not the first.15 Borrowing from a fifty-year-old hymn and changing it substantially in the process seems a little different from the repeated process of "search and replace" musical collage that Charles performed on the contemporary works of Clara Ward. 52
If I am right, Charles's "merger" of gospel and blues relied on a very direct process of transposition. The transposition was not just of themes: passion for woman substituted for passion for God. That is a familiar aspect of soul.16 It is what allows it to draw so easily from gospel's fieriness and yet coat the religion with a distinctly more worldly passion. Sex, sin, and syncopation—what more could one ask? But Charles's genius was to take particular songs that had already proved themselves in the church and on the radio, and to grab large chunks of the melody and structure. He was not just copying themes, or merging genres, he was copying the melodies and words from recent songs. 53