To secular ears, "Jesus Is All the World_The Public Domain: Enclosing the Commons of the Mind

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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

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.

"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.

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.

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.)

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

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.

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.

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.

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.

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."

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.

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.

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.

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

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."

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.

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.

Was this mere musical plagiarism, then? Should we think less of

Ray Charles's genius because we find just how closely two of the

canonical songs in the creation of soul were based on the work

of his contemporaries? Hardly. "I Got a Woman" and "This Little

Girl of Mine" are simply brilliant. Charles does in fact span

the worlds of the nightclub at 3 a.m. on Sunday morning and the

church later that day, of ecstatic testimony and good old-

fashioned sexual infatuation. But the way he does so is a lot

more like welding, or bricolage, than it is like designing out

of nothing or creating anew while distantly tugged by mysterious

musical forces called "themes" or "genres." Charles takes bits

that have been proven to work and combines them to make

something new. When I tell engineers or software engineers this

story, they nod. Of course that is how creation works. One does

not reinvent the wheel, or the method of debugging, so why

should one reinvent the hook, the riff, or the melody? And yet

Charles's creation does not have the degraded artistic quality

that is associated with "mere" cut-and-paste or collage

techniques. The combination is greater than the sum of its

parts. If Charles's songs do not fit our model of innovative

artistic creativity, perhaps we need to revise the model--at

least for music--rather than devaluing his work.

When I began this study, it seemed to me that the greatest

challenge to copyright law in dealing with music was preventing

rights from "creeping," expanding from coverage of a single song

or melody to cover essential elements of genre, style, and

theme. In effect, we needed to apply the Jefferson Warning to

music, to defeat the constant tendency to confuse intellectual

property with real property, and to reject the attempts to make

the right holder's control total. My assumption was that all we

needed to do was to keep open the "common space" of genre and

style, and let new artists create their new compositions out of

the material in that commons and gain protection over them. In

many ways, Charles's work lies at the very core of the stuff

expressive itself, it also helped form a whole new genre in

which other artists could express themselves. But to create this

work, Charles needed to make use of a lot more than just genres

and styles created by others. He needed their actual songs. If

the reactions of Clara Ward and Big Bill Broonzy are anything to

go by, they would not have given him permission. To them, soul

was a stylistic violation, a mingling of the sacred with the

profane. If given a copyright veto over his work, and a culture

that accepts its use, Ward might well have exercised it. Like

the disapproving heirs that Macaulay talked about, she could

have denied us a vital part of the cultural record. Control has

a price.

Did Ray Charles commit copyright infringement? Perhaps. We would

have to find if the songs are substantially similar, once we had

excluded standard forms, public domain elements, and so on. I

would say that they are substantially similar, but was the

material used copyright-protected expression?

The Copyright Office database shows no entry for "I've Got a

Savior." This is not conclusive, but it seems to indicate that

no copyright was ever registered in the work. In fact, it is

quite possible that the song was first written without a

Works are copyrighted as soon as they are fixed in material

form, regardless of whether any copyright notice is attached. In

1951, however, a notice was required when the work was

published, and if one was not put on the work, it passed

immediately into the public domain. However, later legislation

decreed that the relevant publication was not of the record, but

of the notation. If the record were pressed and sold without a

or a sheet music version of "I've Got a Savior" had been

published without notice or registration, it would enter the

public domain. It is possible that this happened. Intellectual

property rights simply played a lesser role in the 1950s music

business than they do today, both for better and for worse.

Large areas of creativity operated as copyright-free zones. Even

where copyrights were properly registered, permission fees were

not demanded for tiny samples. While bootlegged recordings or

direct note-for-note copies might well draw legal action,

borrowing and transformation were apparently viewed as a normal

part of the creative process. In some cases, artists simply did

not use copyright. They made money from performances. Their

records might receive some kind of protection from state law.

These protections sufficed.

But the lack of protection also had a less attractive and more

racially skewed side. African-American artists were less likely

to have the resources and knowledge necessary to navigate the

system of copyright. For both black and white artists, whatever

rights there were moved quickly away from the actual creators

toward the agents, record companies, and distributors. They

still do. But African-American musicians got an even worse deal

than their white counterparts. True, the copyright system was

only an infinitesimal part of that process. A much larger part

was the economic consequences of segregation and racial

apartheid. But copyright was one of the many levers of power

that were more easily pulled by white hands. This is an

important point because the need to end that palpable racial

injustice is sometimes used to justify every aspect of our

current highly legalized musical culture. About that conclusion,

I am less convinced.

In any event, it is possible that the musical composition for

"I've Got a Savior" went immediately into the public domain. If

that were the case, Ray Charles could draw on it, could change

it, could refine it without permission or fee. Certainly there

is no mention of seeking permission or paying fees in any of the

histories of "I Got a Woman." Indeed, the only question of

rectitude Charles was focused on was the stylistic one. Was it

appropriate to mix gospel and R&B, devotional music and secular

desire? Charles and Richard seemed to see the process of

rewording and adapting as just a standard part of the musician's

creative process. The only question was whether these two styles

were aesthetically or morally suited, not whether the borrowing

itself was illegal or unethical. So, whether they drew on a hymn

that had fallen into the public domain after the expiration of

its copyright term, or a gospel song for which copyright had

never been sought, or whether they simply took a copyrighted

song and did to it something that no one at the time thought was

legally inappropriate, Renald Richard and Ray Charles were able

to create "I Got a Woman" and play a significant role in

founding a new musical genre--soul.

One thing is clear. Much of what Charles and Richard did in

creating their song would be illegal today. Copyright terms are

longer. Copyright protection itself is automatic. Copyright

policing is much more aggressive. The musical culture has

changed into one in which every fragment must be licensed and

paid for. The combination is fatal to the particular pattern of

borrowing that created these seminal songs of soul.

That should give us pause. I return to the ideas of the

Jefferson Warning from Chapter 2 and the Sony Axiom from Chapter

4. Copyright is not an end in itself. It has a goal: to promote

the progress of cultural and scientific creativity. That goal

requires rights that are less than absolute. As Jessica Litman

points out, building in the intellectual space is different from

building in the physical space. We do not normally dismantle old

houses to make new ones. This point is not confined to music.

Earlier I quoted Northrop Frye: "Poetry can only be made out of

other poems; novels out of other novels. All of this was much

clearer before the assimilation of literature to private

enterprise."17 The question is, how big are the holes we need to

leave in the private rights? How large a commons do we need to

offer to future creators?

Ray Charles's creation of "I Got a Woman" is only one case. By

itself, it proves nothing. Yet, if we find that the seminal,

genre-creating artworks of yesteryear would be illegal under the

law and culture of today, we have to ask ourselves "is this

really what we want?" What will the music of the future look

like if the Clara Wards and Will Lamartine Thompsons of today

can simply refuse to license on aesthetic grounds or demand

payment for every tiny fragment? Tracing the line further back,

it is fascinating to wonder whether gospel, blues, and jazz

would have developed if musical motifs had been jealously

guarded as private property rather than developed as a kind of

melodic and rhythmic commons. Like most counterfactuals, that

one has no clear answer, but there is substantial cause for

skepticism. If copyright is supposed to be promoting innovation

and development in culture, is it doing its job?

AN INDUSTRY OF GOLD DIGGERS?

Fifty years after "I Got a Woman" was written, Kanye West

released "Gold Digger" on the album Late Registration. Mr. West

is an interesting figure in rap. At first he was shunned because

his clean-cut looks and preppy clothing ran against the gangster

image that often dominates the music. It is just hard imagining

Mr. West delivering a line like Rakim's "I used to be a stick-up

kid, so I think of all the devious things I did" with a straight

face. (Still less "Stop smiling, ain't nothin' funny, nothing

moves but the money.") Perhaps partly as a result, his lyrics

are oddly bipolar in their views about exaggerated masculinity

and the misogyny that sometimes accompanies it.

For the song, Mr. West recruited Jamie Foxx, who had played Ray

Charles in the movie Ray. Showing an impressive expanse of oiled

chest, Mr. Foxx imitates Charles's style and the melody of "I

Got a Woman" to provide the lyrical chorus to "Gold Digger." "I

Got a Woman" anchors West's song. It provides its melodic hook.

It breaks up the rap with a burst of musical nostalgia. But Mr.

West's gold digger is very different from Ray Charles's woman

friend. This woman does not give money when the singer is in

need. She takes his money when he is in need and is a "triflin'

friend indeed." Mr. Charles had a friend who gave him tender

morning loving. Jamie Foxx sings of a mercenary gold digger who

digs on him. When Mr. West adds the rap verses to the song, we

get a perfect caricature of such a person, uninterested in any

man who is broke, dragging around four kids and an entourage,

insisting all of them be entertained at her boyfriend's expense,

and wielding unfounded paternity suits like a proprietary

business method. Mr. West's repeated disclaimer "I ain't sayin'

she's a gold digger" is unconvincing, because both the words of

the introduction and the implicit message of the rap tell us she

is. We even get the absurd image of a man who is playing on the

winning side in the Super Bowl but driving a Hyundai, so

financially demanding is his girlfriend. At several points the

song descends into ludicrous--and perhaps conscious--self-mockery,

as it explores the concerns of the rich African-American

celebrity male. My favorite line is "If you ain't no punk,

holler 'We want prenup!!' " The audience obliges. It sounds like

assertiveness training for show business millionaires.

It would be hard to get a feminist role model out of either "I

Got a Woman" or "Gold Digger." One offers the feminine virtues

of modesty and fidelity, but magically combines them with

wantonness where the singer is concerned and an open checkbook.

The other is a parody of the self-assertive economic actor, as

rapacious as any multinational, who uses her sexuality for

profit. Put them together and you have bookends--male fantasy and

male nightmare. Was that Mr. West's point? Perhaps. The song

itself takes several sly turns. The gold digger dogging Mr. West

is used as part of a homily to black women on how to treat their

(noncelebrity) black men. They should stick with their man

because his ambition is going to take him from mopping floors to

the fryers, from a Datsun to a Benz. It seems that Mr. West is

getting a little preachy, while slamming the actual social

mobility available to black men. Moving from floor cleaning to

frying chicken is not actually going to provide a Mercedes. But

he immediately undercuts that tone twice, once by acknowledging

the boyfriend's likely infidelity and again by saying that even

if the black woman follows his homily, "once you get on, he

leave yo' ass for a white girl."

Mr. West has a tendency to make sudden turns like this in his

lyrics--ironically upsetting the theme he has just set up. So it

is not hard to imagine that he deliberately used a fragment of

Charles's song, not just because it sounded good but to contrast

the image of the fantasy woman from Charles's 1950s soul, who is

faithful, sensual, and always willing to offer a loan, with an

image from today's rap--sexually predatory and emasculating women

who are uninterested in men except as a source of money. Even

the retro cover of the single, with its 1950s-style pinup

drawing of a white model, seems to draw the connection. Did he

use Charles's song precisely because of these clashing cultural

snapshots? Perhaps, or perhaps he just liked the tune. In any

event, the contrast is striking. When it was released, Charles's

song was seen as a sacrilegious depiction of sensuality and the

woman was decried as a harlot. Compared to the woman in Mr.

West's song, she sounds like a Girl Scout. It is also a little

depressing. Ray Charles was neither an egalitarian metrosexual

nor a Prince Charming where women were concerned--anything but.

But as I said before, you do get a sense that he liked

women--however unrealistic or two-dimensional their portrayal. It

is hard to get that sense from "Gold Digger."

Was Mr. West legally required to ask permission--and pay, if

necessary--to use a fragment of "I Got a Woman" for his chorus?

The longest single piece of borrowing occurs in the

introduction: twenty-six words and their accompanying music.

"She takes my money, when I'm in need, oh she's a triflin'

friend indeed. Oh she's a gold digger, way over town, who digs

on me." As I pointed out, the lyrics from Charles's song present

a very different story. "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." But even if the message is the

opposite, the musical borrowing is direct. It is also extensive.

During Mr. West's rap, the entire background melody is a loop of

Jamie Foxx singing the Ray Charles-inspired melody in the

background. During the song, Mr. Foxx returns to words that are

closer to Charles's original: "She gimme money, when I'm in

need," a refrain that is conspicuously at odds with the woman

being described by Mr. West. That eight-bar loop of a Ray

Charles melody runs throughout Kanye West's song.

Mr. West is very successful, so the fragment of the song was

"cleared"--payment was made to Charles's estate. It is

fascinating to think of what might have happened if Charles's

heirs had refused. After all, one could see West's song as a

crude desecration of Charles's earlier work, rather than a good-

humored homage. Since this is not a "cover version" of the

song--one which does not change its nature and thus operates

under the statutory licensing scheme--Charles's heirs would have

the right to refuse a licensing request. Unlike Clara Ward, it

is clear that Charles's heirs have the legal power to say no, to

prevent reuse of which they disapprove.

Was West legally required to license? Would all this amount to a

because it gives a beautiful snapshot of the rules with which

current law surrounds musical creation.

Today, a song is generally covered by at least two copyrights.

One covers the musical composition--the sheet music and the

lyrics--and the other the particular sound recording of that

composition. Just as there are two kinds of copyrights, so there

are at least two kinds of borrowings that copyright might be

concerned with. First, one musical composition might infringe

another. Thus, for example, a court found that George Harrison

"subconsciously" based his song "My Sweet Lord" on the melody of

"He's So Fine" by the Chiffons.

How much does it take to infringe? That is a difficult question.

The law's standard is "substantial similarity," but not every

kind of similarity counts. Minimal or de minimis copying of tiny

fragments is ignored. Certain styles or forms have become

standards; for example, the basic chord structure of the twelve-

bar blues or the habit of introducing instruments one at a time,

from quietest to loudest. There are only so many notes--and so

many ways to rearrange them; inevitably any song will be similar

to some other. Yet that cannot mean that all songs infringe

of a kind that copyright is concerned with, the second artist

may claim "fair use"--for parody or criticism, say. Copyright

law, in other words, has tried to solve the problem with which I

began the chapter. Because much of musical creativity is organic

and collective and additive, because it does use prior musical

expression, some copyright decisions have tried to carve out a

realm of freedom for that creativity, using doctrines with names

such as scènes à faire, merger, and fair use. This is yet

another example of judges trying to achieve the balance that

this book is all about--between the realm of the protected and

the public domain--recognizing that it is the balance, not the

property side alone, that allows for new creativity.

The second type of potential infringement comes when someone

uses a fragment of the earlier recording as part of the later

one, actually copying a portion of the recording itself and

using it in a new song. One might imagine the same rules would

be applied--de minimis copying irrelevant, certain standard forms

unprotected, and so on. And one would be wrong. In a case called

Bridgeport Music, which I will discuss in a moment, the Court of

Appeals ruled that taking even two notes of a musical recording

counts as potentially actionable copying. Where recordings are

concerned, in other words, there is almost no class of copying

so minimal that the law would ignore it. This is a terrible

decision, at least in my opinion, likely to be rejected by other

Circuits and perhaps even eventually by the Supreme Court. But

for the moment, it is a case that samplers have to deal with.

How does Kanye West fare under these rules? He may sample from

the actual recording of Mr. Charles's song. It is hard to tell.

He certainly copies portions of the melody. That means we have

to look at the copyright in the musical composition--the words

and the music of "I Got a Woman." For a copyright infringement,

one needs a valid copyright and evidence of copying, the amount

copied needs to be more than an insignificant fragment,

substantial similarity is required, and the similarity has to be

between the new work and the elements of the original that are

actually protected by copyright. Elements taken from the public

domain, standard introductions, musical clichés, and so forth,

do not get included in the calculation of similarity. Finally,

the copier can claim "fair use"--that his borrowing is legally

privileged because it is commentary, criticism, parody, and so

on.

Does Charles, or his record company, have a valid copyright in

the musical composition? One huge problem in copyright law is

that it is remarkably hard to find this out. Even with the best

will in the world, it is hard for an artist, musician, or

teacher to know what is covered by copyright and what is not.

Nowadays, all works are copyrighted as soon as they are fixed,

but at the time "I Got a Woman" was written one had to include a

domain. The Copyright Office database shows no copyright over

the words and music of "I Got a Woman." There are copyrights

over a variety of recordings of the song. If Mr. West is using a

fragment of the recording, these would affect him. But the

melody? It is possible that the underlying musical composition

is in the public domain. Finding out whether it is or is not

would probably cost one a lot of money.

Suppose that Mr. Charles has complied with all the formalities.

The words and music were published with a copyright notice. A

infringe this copyright? That is where the discovery of the

Bailey Gospel Singers recording is potentially so important.

Charles only gets a copyright in his original creation. Those

elements taken from the public domain (if "I've Got a Savior"

was indeed in the public domain) or from other copyrighted songs

do not count. The irony here is that the elements that Kanye

West borrows from Ray Charles are almost exactly the same ones

Ray Charles borrows from the Bailey Gospel Singers. "I've got a

savior, Oh what a savior" becomes "I got a woman, way over town"

becomes "There's a Gold Digger, way over town." And of course,

the music behind those words is even more similar. When The

Legendary K.O. reached for Kanye West's song in order to

criticize Mr. Bush, they found themselves sampling Jamie Foxx,

who was copying Ray Charles, who was copying the Bailey Gospel

Singers, who themselves may have borrowed their theme from an

older spiritual.

GEORGE BUSH DOESN'T CARE . . .

Five damn days, five long days

And at the end of the fifth he walking in like "Hey!"

Chilling on his vacation, sitting patiently

Them black folks gotta hope, gotta wait and see

If FEMA really comes through in an emergency

But nobody seem to have a sense of urgency

Now the mayor's been reduced to crying

I guess Bush said, "N------'s been used to dying!"

He said, "I know it looks bad, just have to wait"

Forgetting folks was too broke to evacuate

N------'s starving and they dying of thirst

I bet he had to go and check on them refineries first

Making a killing off the price of gas

He would have been up in Connecticut twice as fast . . .

After all that we've been through nothing's changed

You can call Red Cross but the fact remains that . . .

George Bush ain't a gold digger,

but he ain't f--ing with no broke n------s

"George Bush Doesn't Care About Black People," The Legendary

K.O.

The song "George Bush Doesn't Care About Black People" was an

immediate sensation. Hundreds of thousands of people downloaded

it. Within days two different video versions had been made, one

by Franklin Lopez and another by a filmmaker called "The Black

Lantern." Both synchronized the lyrics of the song with news

clips of the disaster and unsympathetic footage of President

Bush apparently ignoring what was going on. The effect was both

hilarious and tragic. The videos were even more popular than the

song alone. The blogosphere was fascinated--entries were posted,

e-mails circulated to friends with the usual "you have to see

this!" taglines. In fact, the song was so popular that it

received the ultimate recognition of an Internet fad: the New

York Times wrote a story on it, setting the practice in

historical context.

In the 18th century, songwriters responded to current events

by writing new lyrics to existing melodies. "Benjamin Franklin

used to write broadside ballads every time a disaster struck,"

said Elijah Wald, a music historian, and sell the printed lyrics

in the street that afternoon. This tradition of responding

culturally to terrible events had almost been forgotten, Mr.

Wald said, but in the wake of Hurricane Katrina, it may be

making a comeback, with the obvious difference that, where

Franklin would have sold a few song sheets to his fellow

Philadelphians, the Internet allows artists today to reach the

whole world.18

Mr. Nickerson's and Mr. Randle's song started with Kanye West's

words--taken from the fundraiser with Mike Myers. "George Bush

doesn't care about black people." From there it launched into

the song. The background melody comes almost entirely from a

looped, or infinitely repeated, version of the hook that Kanye

West and Jamie Foxx had in turn taken from Ray Charles: "She

gimme money, when I'm in need. I gotta leave." Against that

background, The Legendary K.O. provide their profane and angry

commentary, part of which is excerpted above, with a chorus of

"George Bush don't like black people," in case anyone had missed

the point.

The videos differ in the issues they stress. Franklin Lopez's

movie is, rather pointedly given its theme, just black and

white. He uses ornate captions pages, reminiscent of silent film

from the 1920s, to make political points against the background

of the song and the news footage. As the captions read "Katrina

Rapidly Approaches," we cut to a shot of the hurricane. "The

President Ponders on What to Do." We have a shot of Mr. Bush

playing golf. "I Think I'll Ride This One Out." Mr. Bush is

shown relaxing on a golf cart, juxtaposed against pictures of

African-Americans wading through the floods. The captions add,

as an afterthought, "And Keep Dealing with the Brown People."

(Pictures of soldiers shooting.) When FEMA's Michael Brown is

shown--at the moment when Bush said "Brownie, you are doing a

hell of a job"--the captions comment mockingly, "The Horse Judge

to the Rescue."

Mr. Lopez's video obviously tries to use The Legendary K.O.'s

song to make larger political arguments about the country. For

example, it asserts that "in 2004 Bush diverted most of the

funds for the levees to the war in Iraq." Scenes reminiscent of

a Michael Moore documentary are shown. There are pictures of the

Iraq war, Halliburton signs, and shots of the president with a

member of the Saudi royal family. The captions accuse the

president of showing insensitivity and disdain to racial

minorities. One summarizes the general theme: "Since he was

elected president, George Bush's policies have been less than

kind toward Africans and Hispanics." Issues ranging from the

response to the Darfur massacres, No Child Left Behind, and the

attempted privatization of Social Security also make their

appearance. The video concludes by giving the donation

information for the Red Cross and saying that we are "onto"

Bush. A picture of a Klansman removing his hood is shown, with

the image manipulated so that the face revealed is Mr. Bush's.

The Black Lantern's video is just as angry, and it uses some of

the same footage, but the themes it picks up are different. It

starts with a logo that parodies the FBI copyright warning shown

at the beginning of movies: "WARNING: Artist supports

filesharing. Please distribute freely." That dissolves into a

picture of Kanye West and Mike Myers. West is speaking, somewhat

awkwardly as he goes "off script," and at first Mr. Myers is

nodding, though he starts to look increasingly worried. West

says, "I hate the way they portray us in the media. You see a

black family it says they are looting. You see a white family,

it says they are looking for food." Finally, West says "George

Bush doesn't care about black people" and the camera catches

Myers's mute, appalled reaction. Then the song begins. The film

cuts repeatedly between a music video of Mr. Foxx as he sang the

lines for "Gold Digger" and the news coverage of the debacle in

New Orleans. At one point the music pauses and a news anchor

says, "You simply get chills when you look at these people. They

are so poor. And so black." The song resumes. Here the message

is simpler. The media coverage is biased and governmental

attention slowed because of negative racial stereotypes and lack

of concern about black people.

Some readers will find that this song and these videos capture

their own political perspectives perfectly. They will love the

bitterly ironic and obscene outrage at the government's failure,

the double standards of the press, and the disproportionate and

callously disregarded impact on the poor and black. Others will

find both song and films to be stupid, insulting, and

reductionist--an attempt to find racial prejudice in a situation

that, at worst, was an example of good old-fashioned

governmental incompetence. Still others will find the language

just too off-putting to even think about the message. Whatever

your feelings about the content, I urge you to set them aside

for a moment. For better or worse, Mr. Bush just happened to be

president at the moment when the Internet was coming into its

own as a method of distributing digitally remixed political

commentary, which itself has recently become something that

amateurs can do for pennies rather than an expensive activity

reserved to professionals. The point is that whatever rules we

apply to deal with "George Bush Doesn't Care About Black People"

will also apply to the next video that alleges corruption in a

Democratic administration or that attacks the sacred cows of the

left rather than the right. How should we think about this kind

of activity, this taking the songs and films and photos of

others and remixing them to express political, satirical,

parodic, or simply funny points of view?

SAMPLING

Let us begin with the music. Unlike the other songs I have

discussed here, with the possible exception of Mr. West's,

"George Bush Doesn't Care About Black People" makes use of

digital samples of the work of others. In other words, this is

not merely about copying the tune or the lyrics. The reason that

Mr. Nickerson and Mr. Randle could make and distribute this song

so fast (and so cheaply) is that they took fragments from the

recording of "Gold Digger" and looped them to form the

background to their own rap. That was also part of the reason

for the positive public reaction. Kanye West (and Ray Charles

and Clara Ward) are very talented musicians. West's song was

already all over the airwaves. The Legendary K.O. capitalized on

that, just as Benjamin Franklin capitalized on the familiarity

of the songs he reworded. But where Franklin could only take the

tune, The Legendary K.O. could take the actual ones and zeros of

the digital sound file.

As I mentioned earlier, there are two types of copyright

protection over music. There is the copyright over the musical

composition and, a much more recent phenomenon, the copyright

over the actual recording. This song potentially infringes both

of them.

Readers who came of age in the 1980s might remember the music of

Public Enemy and N.W.A.--a dense wall of sound on which rap

lyrics were overlaid. That wall of sound was in fact made up of

samples, sometimes hundreds of tiny samples in a single track.

Rap and hip-hop musicians proceeded under the assumption that

taking a fragment of someone else's recording was as acceptable

legally (and aesthetically) as a jazz musician quoting a

fragment of another tune during a solo. In both cases, the use

of "quotation" is a defining part of the genre, a harmless or

even complimentary homage. Or so they thought.

In a 1991 case called Grand Upright, that idea was squashed.19

The rap artist Biz Markie had extensively sampled Gilbert

O'Sullivan's song "Alone Again (Naturally)" for his own song

"Alone Again." The court could have applied the rules described

earlier in this chapter, decided whether or not this was a large

enough usage to make the second song substantially similar to

the original, discussed whether or not it counted as a fair use,

whether Markie's use was transformative or parodic, whether it

was going to have a negative impact on the market for the

original, weighed the issues, and ruled either way. In doing so,

there would have been some nice points to discuss about whether

or not the breadth of fair use depends in part on the practice

in the relevant artistic community, how to understand parodic

reference, or the relevant markets for the work. (Biz Markie's

lawyers had asked for permission to use the sample, but the

Supreme Court has made clear that seeking permission does not

weigh against a defense of fair use.) There were also some

tricky issues about the breadth of legal rights over

recordings--the right was of relatively recent creation and had

some interesting limitations. Underlying it all was a more

fundamental question: how do we interpret the rules of copyright

so as to encourage musical creativity? After all, as this

chapter has shown, borrowing and reference are a fundamental

part of musical practice. We ought to think twice before

concluding they are illegal. Are we to criminalize jazz? Condemn

Charles Ives? And if not, what is the carefully crafted line we

draw that allows some of those uses but condemns this one?

Judge Duffy, however, was uninterested in any of these

subtleties.

"Thou shalt not steal" has been an admonition followed since

the dawn of civilization. Unfortunately, in the modern world of

business this admonition is not always followed. Indeed, the

defendants in this action for copyright infringement would have

this court believe that stealing is rampant in the music

business and, for that reason, their conduct here should be

excused. The conduct of the defendants herein, however, violates

not only the Seventh Commandment, but also the copyright laws of

this country.20

If this were a law school exam, it would get a "D." (Maybe a C

given grade inflation.) Duffy makes all of the errors Jefferson

warned us against. Tangible property is the same as intellectual

property. Songs are the same as sheep and the same rules can

apply to both. Theft is theft. The prior injunctions of the

framers and the courts notwithstanding, we do not need to think

carefully about the precise boundaries of intellectual property

rights or worry that interpreting them too broadly is as bad as

making them too narrow. So far as Judge Duffy is concerned, the

tablets on Mount Sinai were inscribed with an absolute

injunction against digital sampling. (The font must have been

small.) But to say all this is merely to scratch the surface of

how regrettable a decision it is. In the narrowest and most

formalistic legal terms it is also very poor.

Judge Duffy gives not a single citation to the provisions of the

substantial similarity, fair use, and the differences between

the right over the recording and that over the composition. In

fact, he quotes the Bible more, and more accurately, than he

does Title 17 of the U.S. Code--the Copyright Act. The one

mention he makes of actual copyright law is at the end of the

opinion, when he refers the case for criminal prosecution! When

I first read this case, I seriously wondered for a moment if it

were a crude parody of a legal opinion written by someone who

had never been to law school.

Is the result in this case wrong? Personally, I do not think so.

It is possible, even probable, that a conscientious judge who

bothered to read the law could go through a careful analysis and

find that Markie's use went beyond de minimis copying, that it

was neither creative, parodic, nor short enough to count as a

fair use. The judge might have presumed a negative effect on the

market for Mr. O'Sullivan's song and thus could have ruled that

it was a copyright infringement. In doing so, the judge would

have to give some guidance to future courts about digital

sampling. The most likely guidance would be "the sample here is

so extensive and so unchanged, that this case says little about

the wider musical practice of sampling." Judge Duffy's opinion

was poor not because of the result he reached, but because he

reached it in an overly broad and judicially inappropriate way

that became a guideline for future cultural creation. Worse

still, the industry listened to him.

In excellent books on this issue, Kembrew McLeod and Siva

Vaidhyanathan each argue that Grand Upright was a disaster for

rap music.21 The industry's practice turned full circle almost

overnight. Now every sample, no matter how tiny, had to be

"cleared"--licensed from the owners of the recording. As they

tell the story, this "legal" change caused an aesthetic change.

The number of samples in an average song dropped precipitously.

The engaging complexity of the Public Enemy "wall of sound" gave

way to the simplistic thumping beat and unimaginative

synthesizer lines of modern rap. I must admit to sharing

McLeod's and Vaidhyanathan's musical prejudices. The causal

claim is harder to substantiate, but industry lawyers and

musicians both agree that changes in the industry's

understanding of the law had a major role in transforming the

practice of sampling.

If we disregard the Jefferson Warning and assume the recording

artist has absolute property rights over his work, then we could

ignore the idea that forcing people to pay for stuff they take

might have a negative effect on future art and culture. Theft is

theft. I might be able to make art much more easily if I did not

have to pay for the paint and canvas, but that is not commonly

held to excuse shoplifting from art stores. But if we take the

Jefferson Warning seriously, then intellectual property's job is

to balance the need to provide incentives for production and

distribution with the need to leave future creators free to

build upon the past. Reasonable minds will differ on where this

line is to be drawn, but the process of drawing it is very

different from the process Judge Duffy had in mind.

For fifteen years, critics of the decision waited for an appeals

court to fix the law in this area. When the case of Bridgeport

Music, Inc. v. Dimension Films came up, they thought they had

what they wanted. The band NWA had used a tiny fragment (less

than two seconds) consisting of three notes of a guitar solo

from the George Clinton song "Get Off Your Ass and Jam." The

fragment was an arpeggiated chord, which simply means that you

strike the notes of the chord individually and in sequence. It

was, in fact, a pretty standard "deedly" sound, familiar from

many guitar solos. NWA then heavily distorted this fragment and

looped it so that it played in the background of one part of the

song--so faintly that it is almost impossible to hear and

completely impossible to recognize. (With the distortion it

sounds like a very faint and distant police siren.) A company

called Bridgeport Music owned the sound recording copyright over

the Clinton song. They sued. NWA's response was predictable--this

was classic de minimis copying, which the law did not touch. One

did not even have to get to the issue of fair use (though this

surely would be one).

The appeals court did not waste any time attempting to dignify

Judge Duffy's decision in Grand Upright.

Although Grand Upright applied a bright-line test in a

sampling case, we have not cited it as precedent for several

reasons. First, it is a district court opinion and as such has

no binding precedential value. Second, although it appears to

have involved claims for both sound recording and musical

composition copyright infringement, the trial judge does not

distinguish which he is talking about in his ruling, and appears

to be addressing primarily the musical composition copyright.

Third, and perhaps most important, there is no analysis set

forth to indicate how the judge arrived at his ruling, which has

resulted in the case being criticized by commentators.22

100

They did like one thing about the decision, however: its bright-

line rule, "Thou Shalt Not Steal." (Lawyers use the term

"bright-line rule" to refer to a rule that is very easy to apply

to the facts. A 55 mph speed limit is a bright-line rule.) The

Bridgeport court rejected the idea that sound recording

copyrights and music composition copyrights should be analyzed

in the same way. They wanted to set a clear rule defining how

much of a sound recording one could use without permission. How

much? Nothing. To be precise, the court suggests in a footnote

that taking a single note might be acceptable since the

however, is clearly off limits.

101

Though they come to a conclusion that, if anything, is more

stringent than Judge Duffy's, they do so very differently. In

their words, "Get a license or do not sample." Effectively, the

court concludes that the sound recording copyright is different

enough from the composition copyright that a court could

reasonably conclude that a different analysis is required. The

judges are fully aware that copyright must balance encouraging

current creators and leaving raw material to future creators--the

Jefferson Warning holds no novelty for them. But they conclude

that a clear "one-note rule" will do, because if the costs of

licenses are too high, samplers can simply recreate the riff

themselves, and this will tend to keep prices reasonable.

102

This is an interesting idea. Why does this not happen more

often? Why do samplers not simply recreate James Brown's

drumbeat from "Funky Drummer," or George Clinton's solo from

"Get Off Your Ass and Jam"? Musicians offer lots of different

answers. They do not understand the distinction the court is

drawing, so the market never develops. The samples themselves

cannot be replicated, because the music has all kinds of

overtones from the historical equipment used and even the

methods of recording. Fundamentally, though, the answer seems to

be one of authenticity, ironically enough. The original beats

have a totemic significance--like the great standard chord

sequences in jazz. One cannot substitute replicas for James

Brown's funkiness. It just would not be the same. As Walter

Benjamin pointed out long ago in "The Work of Art in the Age of

Mechanical Reproduction," cheap copying actually increases the

demand for authenticity.23 The court's economic analysis--which

imagines a world of fungible beats produced for music as a

consumer good--deals poorly with such motivations.

103

When the court first released its decision, it was greeted with

concern even by recording industry representatives who might

have been expected to favor it, because it appeared to do away

with not only the de minimis limitation on copyright (some

portions are just too small to count as "copying") but the fair

use provisions as well. The court took the very unusual step of

rehearing the case and amending the opinion, changing it in a

number of places and adding a paragraph that stated that when

the case went back to the district court, the judge there was

free to consider the fair use defense. Of course, if one takes

this seriously--and, for the constitutional reasons given in

Chapter 5, I agree that the court has no power to write fair use

out of the statute--it undermines the supposedly clear rule. If

the factors of fair use are seriously applied, how can a three-

note excerpt ever fail to be fair use? And if we always have to

do a conventional fair use analysis, then the apparent clarity

of the one-note rule is an illusion.

104

The Bridgeport decision is a bad one, I believe. Among other

things, it fails to take seriously the constitutional

limitations on copyright--including the originality requirement

and the First Amendment. (A three-note sample is not original

enough to be protected under copyright law, in my view. There

are also more speech-related issues in sampling than the court

seems to realize.) The competitive licensing market the court

imagines seems more like economic fantasy than reality. I think

the ruling sets unnecessary barriers on musical creation and

ends up with a rule that is just as blurry as the one it

criticizes. I think the court's reading of the statute and

legislative history is wrong--though I have not bored you with

the full details of that argument. But I want to be clear that

it is a very different kind of bad decision from Judge Duffy's.

105

The court in Bridgeport does see copyright as a balance. It does

understand the need for future creators to build on the past,

but it also shows that a simple willingness to look upon

intellectual property protections in a utilitarian way does not

solve all problems. It certainly does not proceed from

Jefferson's presumption that intellectual property protections

should be interpreted narrowly. Though it claims to have a

"literal" reading of the statute, the real driving force in the

analysis is an unconsummated desire for bright-line rules and a

belief that the market will solve these problems by itself. The

court also suggests that "[i]f this is not what Congress

intended or is not what they would intend now, it is easy enough

for the record industry, as they have done in the past, to go

back to Congress for a clarification or change in the law." Note

the assumption that "the record industry" is the most reliable

guide to Congress's intentions or that it is the only entity

affected by such a rule. This is truly the image of copyright

law as a contract among affected industries. Of course, digital

artists such as The Legendary K.O. hardly fit within such a

model.

106

Under the rule in Bridgeport--"Get a license or do not

sample"--Mr. Randle and Mr. Nickerson appear to be breaking the

law. They did not get a license and they most definitely did

sample. What about fair use?

107

Under fair use, copyright allows a very specific (and possibly

lengthy) use of another's material when the purpose is parody of

that prior work itself. The Supreme Court gave parody a unique

status in the Acuff-Rose case. The (extremely profane) rap group

2 Live Crew had asked for permission to produce a version of Roy

Orbison's "Pretty Woman." But where Orbison sang about the

pretty woman walking down the street whom he would like to meet,

2 Live Crew wrote about a "big hairy woman" ("with hair that

ain't legit, 'cause you look like Cousin It"). They sang about a

"bald headed" woman with a "teeny weeny afro." They sang about

group sex with both women. Finally, they told a "two timin'

woman," "now I know the baby ain't mine." Justice Souter showed

the characteristic sangfroid of a Supreme Court justice faced

with raunchy rap music.

108

While we might not assign a high rank to the parodic element

here, we think it fair to say that 2 Live Crew's song reasonably

could be perceived as commenting on the original or criticizing

it, to some degree. 2 Live Crew juxtaposes the romantic musings

of a man whose fantasy comes true, with degrading taunts, a

bawdy demand for sex, and a sigh of relief from paternal

responsibility. The later words can be taken as a comment on the

naiveté of the original of an earlier day, as a rejection of its

sentiment that ignores the ugliness of street life and the

debasement that it signifies. It is this joinder of reference

and ridicule that marks off the author's choice of parody from

the other types of comment and criticism that traditionally have

had a claim to fair use protection as transformative works.24

[emphasis added]

109

Truly, the law can confront and master all cultural forms. The

heart of parody as the Supreme Court described it is that one is

taking aim at the original. Because 2 Live Crew could be seen as

directing their song at Orbison's original, rather than using

Orbison's song to make some other political or social point, the

court was willing to give it the favorable consideration that

parody receives as a fair use.

110

Does "George Bush Doesn't Care About Black People" fit that

model? The Legendary K.O. were not "taking aim" at "Gold

Digger." True, they quoted West's actual words from the

television broadcast (also copyrighted). They even used them as

their title. But they were not taking aim at his song.

(Ironically, Kanye West has a better claim that he was taking

aim at Ray Charles's picture of womanhood, in just the way

described in the 2 Live Crew case.) Rather, The Legendary K.O.

were using the sample of the song as the backing to an entirely

different rap that expressed, in familiar and popular musical

form, a more expansive version of his condemnation of both press

and president. That does not end the inquiry. Parody is not the

only form of protected criticism or commentary. But it makes it

much harder for them to succeed, particularly in light of the

hostility toward sampling betrayed by both Grand Upright and

Bridgeport.

111

The videos made by The Black Lantern and Franklin Lopez present

an even more complex set of questions. On top of the music

news footage and footage of Mr. Foxx. The Black Lantern also

used some fragments of a popular video by Jib-Jab, which had a

cartoon Bush and Kerry singing dueling parodied versions of

Woody Guthrie's "This Land." When JibJab's video first came out,

the Guthrie estate claimed copyright infringement over the song.

Assisted by a number of public interest legal groups, JibJab

claimed fair use. (It eventually came out that the copyright

over the song was no longer valid.) What did Jib-Jab do when The

Black Lantern sampled them in their turn? In a move that both

wins the prize for hypocrisy and serves to sum up the

intersection of law and culture I have been describing, they

sent him a cease and desist letter. The video was taken down for

a week and he was eventually forced to remove the segment of

their video from his work. Fair use for me, but not for thee.

112

CONCLUSION

113

The Legendary K.O. samples Kanye West, who uses a fragment from

Ray Charles, who may have taken material from Will Lamartine

Thompson or, more likely, from Clara Ward (who herself borrowed

from a gospel standard). The chain of borrowing I describe here

has one end in the hymns and spirituals of the early 1900s and

the other in the twenty-first century's chaotic stew of digital

sampling, remix, and mashup. Along the way, we have the

synthesis of old and the invention of new musical genres--often

against the wishes of those whose work is serving as the raw

material. One way of viewing this story is that each of these

musicians (except for some imaginary original artist, the

musical source of the Nile) is a plagiarist and a pirate. If

they are licensing their material or getting it from the public

domain, then they may not be lawbreakers but they are still

unoriginal slavish imitators. If one's image of creativity is

that of the romantic, iconoclastic creator who invents the world

anew with each creation, those conclusions seem entirely

appropriate. The borrowing here is rampant. Far from building

everything anew, these musicians seem quite deliberately to base

their work on fragments taken from others.

114

It is important to remember that copyright does not subscribe

completely to the idea of romantic creation where music is

concerned. As I pointed out earlier, musical genres develop out

of other genres: soul from gospel and rhythm and blues; gospel

from spirituals; rhythm and blues from jazz, jump music, and

Delta blues; and so on. When it comes to genres, we can play the

game of musicological "six degrees of separation" all day long.

the genre is not covered, only the specific form of creativity

within the genre. I mentioned before the need to keep the lines

of genre and form open, to keep them free from private property

rights in order to allow musicians to develop the form by using

them as common property, the "highways" of musical progress. So,

for example, the twelve-bar blues uses the first, fourth, and

fifth chords in a scale. That sequence cannot be owned, unless

blues is to become impossible or illegal. Bebop is characterized

by copious use of the flattened fifth--a sound which was jarring

to audiences when it was first introduced and which marked the

break with the more accessible jazz of swing and the big bands.

The flattened fifth is not owned. These characteristic genre-

creating sequences or sounds are supposed to be left in the

public domain, though increasingly some scholars--including

me--are coming to believe that we have managed to make the

close those common areas and impede the development of future

musical forms. The Bridgeport court might extend its logic and

imagine that the entire musical commons could be licensed, of

course. The presence of other chord sequences would keep the

price down! But up to now, we have not gone that far. In theory

at least, copyright is not supposed to stop the next Ray

Charles, the person who wants to fuse two older forms of music

to create a third.

115

Yet the chain of borrowing that links The Legendary K.O., Kanye

West, Ray Charles, and the Bailey Gospel Singers is of a

different kind. This borrowing involves taking chunks of prior

musicians' melodies, their words, their lyrical patterns. This

is not just copying the genre. It is copying the lines of the

song within the genre. This is the kind of stuff copyright is

supposed to regulate even when it is working well. And yet,

listening to the sequence, it is hard to deny that at each stage

something artistic and innovative, something remarkable, has

been created. In fact, the story of this song is the striking

ability of each set of artists to impose their own sound,

temperament, spirituality, humor, vision of women, or, in the

case of The Legendary K.O., their intense and profane political

anger, onto the musical phrases they have in common.

116

The postmodern conclusion here is "there is nothing new under

the sun"--that all creation is re-creation, that there is no such

thing as originality, merely endless imitation. If this is meant

to be a comment about how things get created, at least in music,

I think there is some truth to it. But if it is a claim about

aesthetic worth, a denial that there are more and less creative

individuals in the arts, I find it as facile and unconvincing as

its romantic authorial opposite.

117

What is fascinating about the artists I describe here is that,

while they do not fit neatly into either the aesthetic ideal of

independent creation or the legal model for how creative

expression gets made, they each have a remarkable, palpable

creativity. Each leaves us with something new, even if formed

partly from the fragments of the past. One could describe Ray

Charles as the merest plagiarist--making "search and replace"

songs by substituting a woman for the deity in already-

established hits. But if that is our conclusion, it merely

proves that our theories of aesthetics are poorer than the

creativity they seek to describe. So much the worse for the

theories.

118

As Jefferson pointed out, the lines surrounding intellectual

property are hard to draw--something the Bridgeport court got

right. When we draw them, whether legally or as a matter of

aesthetic morality, we do so partly with standard instances in

mind. "Well, that can't be wrong," we think to ourselves, and

reason by analogy accordingly. Yet the process of analogy fails

us sometimes, because the types of borrowing change over time.

119

Ray Charles was frank about the way he copied the style and

licks of Nat King Cole like an apprentice learning from a

lawyer. But he and his estate assiduously guarded his copyrights

against more modern borrowing they found to be inappropriate.

Judge Duffy thunderously denounces Biz Markie. It is harder to

imagine him leveling the same condemnation at Dizzy Gillespie,

Charles Ives, Oscar Peterson, or, for that matter, Beethoven,

though all of them made copious use of the works of others in

their own. It is bizarre to imagine a Bridgeport-like rule being

extended to composition copyrights and applied to music such as

jazz. "Get a license or do not solo"? I think not. Does it make

any more sense for sampling?

120

If there is a single reason I told the story of these songs it

is this: to most of us, certainly to me, the idea that copyright

encourages creativity and discourages the reuse of material

created by others seems reasonable. Of course, I would want to

apply the correctives implied by the Jefferson Warning--to make

sure the rights were as short and as narrow as possible. But at

least when it comes to copying chunks of expression still

covered by copyright, our intuitions are to encourage people to

create "their own work," rather than to rely on remix. What does

that mean in the world of music? As the story I have told here

seems to illustrate, even musicians of unquestioned

"originality," even those who can make a claim to having created

a new musical genre, sometimes did so by a process rather more

like collage than creation out of nothing, taking chunks of

existing work that were proven to work well and setting them in

a new context or frame.

121

Imagine Ray Charles trying to create "I Got a Woman" today. Both

of his possible sources would be strongly and automatically

protected by copyright. The industries in which those works were

produced would be much more legalistic and infinitely more

litigious. The owners of those copyrights could use them to stop

him from "desecrating their work"--which is literally what he is

doing. We know Clara Ward objected to Charles's other borrowings

from gospel. I cannot imagine Will Lamartine Thompson or his

worthy neighbors in East Liverpool looking kindly on the sweet

"early morning loving" outside of wedlock described in "I Got a

Woman," still less the use of sacred music to glorify it. And

description of how Richardson's novels might have been censored

by a moralistic heir? Even if the objections were not vetoes,

but simple demands for payment, would we get "I Got a Woman" and

"This Little Girl of Mine"? Given the extent of the borrowing

that jump-started this particular genre-bridging effort, would

we be likely to see the birth of soul music?

122

Congress assures us that the many increases in copyright

protection have been in the name of encouraging creativity. The

music industry says the same thing when its pettifogging

clearance procedures and permission culture are criticized. But

do we really think we are more likely to get a twenty-first-

century Ray Charles, or a fusion of styles to create a new

genre, in the world we have made? Do we really think that the

formalist ignorance of Judge Duffy or the market optimism of the

Bridgeport court, in which thick markets offer fungible sets of

samples to be traded like commodities, are good guides for the

future of music? Are we in fact killing musical creativity with

the rules that are supposed to defend it?

123

An Internet optimist would tell us that is precisely the point.

True, because of the errors described in the chapter on the

Jefferson Warning, and the mistakes catalogued in the chapters

on the Internet Threat and the Farmers' Tale, we have

dramatically expanded the scope, length, and power of the rights

that are supposed to shape our creative culture. But technology

cures all. Look at The Legendary K.O., The Black Lantern, or

Franklin Lopez. They are all probably breaking the law as it is

currently interpreted by the courts. But their work can be

created for pennies and distributed to millions. The technology

allows people to circumvent the law. Admittedly, some of the

JibJab's newfound dislike of fair use and their power to alter

The Black Lantern's video. But others either cannot or will not.

Kanye West's representatives in particular are unlikely to be

stupid enough to sue The Legendary K.O. in the first place.

Internet distribution becomes a demimonde in which the rules of

the rest of the society either cannot or will not be enforced.

Art gets its breathing room, not from legal exceptions, but from

technological enforcement difficulties. Finally, as more and

more people can create and distribute digital culture, they are

less likely to understand, believe in, or accept rules that are

strongly at variance with their aesthetic and moral assumptions.

124

There is a lot to these points. The technology does transform

the conditions of creativity, and sometimes it runs right over

the law in the process. Thousands, even millions, can be reached

outside of conventional distribution channels with work that is

technically illegal. And attitudes toward creative propriety do

not track legal rules. When I wrote to Mr. Randle and Mr.

Nickerson, I found that they realized Mr. West probably had a

legal right to get their work taken down, but they felt he would

not use it, and they had a very commonsensical conception of

what they ought to be allowed to do. They were not making any

money from this. They were making a political point, drawing

attention to a political and human problem. That made it okay.

They would have liked more formal permission so that they could

actually distribute CDs through conventional for-profit

channels, perhaps with some portion of the proceeds going to

disaster relief, but they understood they were unlikely to get

it.

125

Despite all this, I am uncomfortable with the argument "do not

worry, technology will allow us to evade the rules where they

are stupid." A system that can only function well through

repeated lawbreaking is an unstable and dangerous one. It breeds

a lack of respect for the law in those who should be its

greatest supporters and beneficiaries. It blurs civil

disobedience and plain old lawbreaking. Sitting in on the

segregated lunch counter and being willing to face the

consequences is very different from parking in the disabled

space and hoping you can get away with it. It also blurs our

judgment of conduct. Whatever one thinks of them, The Legendary

K.O. are doing something very different than a college student

who just does not want to pay for music and downloads thousands

of tracks for free from file sharing networks.

126

The problem is not simply one of blurring. Technology-based

"freedoms" are not reliable (though legal ones, too, may fail).

In a pinch, the technology may not save you, as thousands of

those same downloaders have found out when sued by the RIAA and

forced to pay thousands of dollars for an activity they thought

to be private and anonymous. The Internet "solution" also leaves

certain types of artistic creation dependent on the vagaries of

the current technology, which may well change, eliminating some

of the zone of freedom we currently rely on. But more worrisome

is the fact that this "solution" actually confines certain types

of art to the world of the Internet.

127

The video of "George Bush Doesn't Care About Black People" could

be seen by many, but only if they were wired to the right

technological and social network. (After all, someone has to

tell you to watch.) It was a searing intervention in the

national debate on Katrina. But it appeared on no television

station. Like most of the mashups created online, the fact that

the rights could never be cleared keeps it off mass media.

That is a shame, I think. Not because that video is so good--you

may love it or hate it. But because this kind of artwork has

something important to contribute to our national culture.

Imagine a world in which Ray Charles could create "I Got a

Woman," but could only circulate it to a narrow group of the

file-trading digerati because of a flagrant violation of Clara

Ward's copyright. Do we still get soul? The blues? Jazz? Or do

we just get a precious and insular digital subculture, whose

cultural experiments never reach the mainstream?

128

Throughout his life, Charles described an intimate relationship

with his audience, with the public. He described their tastes as

a check, as a corrective; he thought they would actually be

"ahead" of the artists. He wanted to make songs that would be

listened to by tens of millions of people. And he wanted to make

art and lots of money. I am all for the person who wants to

create as an "amateur-professional" and distribute outside the

chains of commerce. I have worked with organizations that make

it easier to do this. But I also believe in the power and

creativity of commercial culture and political speech carried on

mass media. Ironically, our current copyright system serves it

poorly.

129

What is the solution to all of this? The music business runs on

compulsory licenses, a legally granted ability to use music in

certain ways without permission, though with a fee. The system

seems to function pretty well. One solution is to extend that

system to the world of mashups and derivative works. If you

merely copy the whole of my work and circulate it on file

sharing networks or on CDs, we apply the current rules and

penalties. If, on the other hand, you make a "derivative" work,

mixing your work with mine, then there are two alternatives. If

you stay in the world of nonprofit exchange, you get a

heightened presumption in favor of fair use (perhaps

administered through a quicker and cheaper system of

arbitration). If you move into the for-profit world, then you

must pay a flat licensing fee or percentage of profits to the

130

A second solution would be to curtail the hypertrophy of

protectionism that made all this happen in the first place. The

every twenty-eight years. (There are international treaties that

currently forbid the latter alternative.) We could cut back on

excesses like the Bridgeport decision, create incentives to make

the music industry less legalistically insistent on policing the

most atomic level of creation. We could exempt samples shorter

than five seconds from copyright liability, clarify the

boundaries of fair use, and extend it beyond parody to other

genre-smashing forms such as satire and collage.

131

There are enormous obstacles to all these proposals. In

particular, while artists fare very poorly under the current

clearance culture--paying but not receiving the benefits of

payments--the middlemen who profit from transaction costs are not

keen on abolishing them. Certainly if, as the Bridgeport court

assumed, the recording industry is the party responsible for

fine-tuning copyright law, we are hardly likely to see any

reforms that threaten current modes of doing business. Yet there

is a ray of hope. It is getting harder and harder to pretend

that the rules ostensibly designed to encourage creativity are

actually working. At the same time, more and more people are

creating and distributing cultural objects--becoming "subjects"

of intellectual property law in the process, often to their

dismay and irritation. It is in that conjunction--a far cry from

the industry contract envisioned by the Bridgeport court--that

hope for the future of copyright law's treatment of culture

might lie.

Chapter 7: The Enclosure of Science and Technology: Two Case

Studies

Over the last forty years, much has changed in the way that

scientific research and technological development are organized,

funded, and institutionally arranged. Much has also changed in

the type of scientific and technical material that is covered by

intellectual property rights, the ways that material is covered,

the parties who hold the rights, and the state of research and

development at which rights claims are made. Many academics who

study both science's organizational structure and the

intellectual property claims that surround it are concerned

about the results. To say this is not to conjure up a tragically

lost world of pure research science, untainted by property

claims or profit motives. That world never existed and it is

probably a good thing too. Intellectual property rights, and the

profit motive more generally, have a vital and beneficial role

in moving innovations from lab bench to bedside, from computer

simulation to actual flight. The question is not whether

intellectual property rights are useful as part of scientific

and technological development. The question is what type of

rights they should be, where in the research process those

rights are best deployed, how they should coexist with state

funded basic scientific and technological research, how broad

they should be, how they should deal with new technologies, how

long they should last, how they should treat follow-on

innovations.

I cannot hope here to answer all those questions, though some

fascinating research has begun the process. Instead, as with the

music chapter, I will offer a case study--actually two case

studies--that try to illuminate the process I am describing, to

illustrate its pitfalls and its strange and unintended

consequences.

The two defining technologies of the last thirty years are

biotechnology and the networked computer. Each is both product

and platform. Innovations themselves, they are also constitutive

technologies that enable still more innovations. But at several

historical moments in the development of each we came perilously

close to breaking technology with law.1 Some would say that it

was not just a close shave: we actually have hampered or limited

the full potential of technology, slowing down its dynamism with

a host of overbroad software patents, gene patents, and

materials transfer agreements. Others are more optimistic. They

think that a series of rapid improvisations by courts,

scientists, programmers, and businesspeople has largely

mitigated any problems caused by the process of legal

expansion.2 But if mistakes were made, it is important to know

what they were lest we continue or repeat them. If there were

"fixes," it is important to know if they can be replicated.

So were there mistakes? If so, have they been fixed, and how?

Drawing on an article I co-wrote with my brilliant colleague

Arti Rai,3 this chapter suggests some answers to those questions

by sketching out some details of the legal history of those

technologies, concluding with a discussion of a single promising

new technology that shares aspects of both--synthetic biology.

The answers are important. Behind the abstract words

"innovation" or "technological development" there are lives

saved or lost, communicative freedoms expanded or contracted,

communities enabled or stunted, wealth generated or not. The

subject would benefit from informed, sophisticated, democratic

attention. It is not something you want to leave a host of

lawyers and lobbyists to decide among themselves.

A MACHINE THAT CONTAINS

ALL OTHER MACHINES

Imagine a person staring at an infinite roll of paper tape. On

the paper are symbols in some alphabet or number system. The

reader carries out simple, operable instructions on the basis of

that data. "Add together the next two digits you are presented

with and write down the answer. If the answer is odd, go to step

2. If the answer is even, go to step 3." Now replace the person

with a mechanical head that can "read" the instructions, carry

out the desired operations, and write the answer down. The

British mathematician Alan Turing imagined something like this--a

little more complicated, perhaps, but fairly similar. What is

it? We have the reading head, the set of instructions, the data

on which the instructions are to be performed, the record of the

result, and some kind of "state table" that tells the machine

where it is in the process. These are the component parts of

Turing machines--or as we know them better, computers. More

accurately, Turing machines are a method of simulating the

operation of computers, a metaphor that enables us to imitate

their logical processes. In the words of Wikipedia, "despite

their simplicity--[they] can be adapted to simulate the logic of

any computer that could possibly be constructed." And to give

lawyers fits. But that is getting ahead of ourselves.

In Greek mythology, Procrustes had a bed to which he fitted its

prospective occupants, whether they liked it or not. The tall

were trimmed down. The short stretched on the rack. Intellectual

property lawyers have many similarities to Procrustes. The

technologies that are brought before them are made to fit the

conceptual boxes the law provides, boxes with names such as

"copyright" and "patent." Occasionally, new conceptual boxes are

made, but--for very good reasons--most of the time we stick with

the boxes we have. As with Procrustes, things do not always fit

and the process can be distressing for its subjects.

It is important to realize that the process of trimming and

stretching can be done well or badly. If it is done really

badly, the technology is stunted, deformed, even destroyed. If

it is done well, the law aids the development of the technology

in exactly the happy way described in Chapter 1. What did our

Procrustean legal system do with computers and computer science?

I will focus on software--the set of instructions the machine is

to perform. How should we think of it? Software is written down

by programmers. It is recorded first in a form readable to

humans, or at least geeks. Then, through a series of

transformations, it is turned into the machine code, the ones

and zeros that will operate the computer. But at its root it can

be understood through the metaphor of the simple list of

instructions to be carried out in order, just as with the Turing

machine and its infinite tape.

How should we fit software into the categories of intellectual

property? We have "writing," fixation in some medium of symbols

that can be read by others--both machine and human. Writing is

normally the domain of copyright. Are computer programs

copyrightable? All kinds of problems present themselves. At

least in the United States, copyright covers expression. As I

pointed out in a previous book, at its base is the conception of

the romantic author impressing her uniqueness of spirit on the

work at the moment of writing. It is that expressive choice, not

the facts or ideas on which the work is based, that copyright

covers. And it is only original expression that copyright

covers. It does not cover purely functional objects, systems,

processes, or methods of operation. One cannot copyright the

coat hanger, the mousetrap, or long division. One cannot even

serve as a bicycle rack. Admittedly, one can copyright some

expressive works that serve a practical purpose. A book about

how to do double-entry bookkeeping is copyrightable. Yet

the words to explain the method, and the images to represent it,

not the methods it describes or the facts or ideas it contains.

Can copyright cover computer programs? Should we see them as

copyrightable how-to books or as uncopyrightable machines made

of words?

Machines and other functional innovations are normally the

domain of patent rights. One can patent the mousetrap, and then

one gets an exclusive right to the actual mechanically enabled

method of catching mice, not just the artistic flourishes on the

blueprint. Patents have more demanding criteria than copyrights.

The invention needs to be novel and have utility, or usefulness;

I cannot get a patent over something that would have been an

obvious idea to an insider in the relevant field of technology,

a "person having ordinary skill in the art," or PHOSITA, in the

jargon of patent lawyers. But once I get my patent, it gives me

a very strong power to exclude others from the invention--even if

they came up with it independently. The right lasts for twenty

years. Follow-on innovators who improve on my idea can get a

patent on that improvement. They can block me from using the

improvement. I can block them from using the original invention.

Thus we have an incentive to negotiate if either of us wants to

bring the improved innovation to market.

So where did software fit? Was it copyrightable writing or

patentable invention? There are two issues here. The first is

whether there should be any intellectual property rights over

software at all. The basic case for that proposition is simple,

a classic example of the public goods problem described in the

first chapter. Software costs money to create, but is cheap to

copy. When a youthful Bill Gates wrote his 1976 letter to the

wonderfully named Dr. Dobb's Journal of Computer Calisthenics &

Orthodontia, he put the point clearly.

Who can afford to do professional work for nothing? What

hobbyist can put 3-man years into programming, finding all the

bugs, documenting his product and distribute it for free? The

fact is, no one besides us has invested a lot of money into

hobby software. We have written 6800 BASIC, and are writing 8080

APL and 6800 APL, but there is very little incentive to make

this software available to hobbyists. Most directly, the thing

you do is theft.4

He signed the letter "Bill Gates, General Partner, Micro-Soft."

The hyphen would disappear in time. The philosophy stuck around.

Though there are quibbles about the facts in Gates's

letter--critics claim he himself did a lot of free riding on

public domain code and government-funded computer time--his basic

point is that software needs to be protected by (enforceable)

property rights if we expect it to be effectively and

sustainably produced. Some software developers disagree. But

assuming one concedes the point for the sake of argument, there

is a second question: should software be covered by copyright or

patent, or some unidentified third option?

In practice, software ended up being covered by both schemes,

partly because of actions by Congress, which included several

references to software in the Copyright Act, and partly as a

result of decisions by the Copyright Office, the Patent and

Trademark Office, and judges. One could copyright one's code and

also gain a patent over the "nonobvious," novel, and useful

innovations inside the software.

At first, it was the use of copyright that stirred the most

concern. As I explained in the last chapter, copyright seems to

be built around an assumption of diverging innovation--the

fountain or explosion of expressive activity. Different people

in different situations who sit down to write a sonnet or a love

story, it is presumed, will produce very different creations

rather than being drawn to a single result. Thus strong rights

over the resulting work are not supposed to inhibit future

progress. I can find my own muse, my own path to immortality.

Creative expression is presumed to be largely independent of the

work of prior authors. Raw material is not needed. "Copyright is

about sustaining the conditions of creativity that enable an

individual to craft out of thin air an Appalachian Spring, a Sun

Also Rises, a Citizen Kane."5

There are lots of reasons to doubt that this vision of "creation

out of nothing" works very well even in the arts, the

traditional domain of copyright law. The story of Ray Charles's

"I Got a Woman" bears ample witness to those doubts. But

whatever its merits or defects in the realm of the arts, the

vision seems completely wrongheaded when it comes to software.

Software solutions to practical problems do converge, and

programmers definitely draw upon prior lines of code. Worse

still, as I pointed out earlier, software tends to exhibit

"network effects." Unlike my choice of novel, my choice of word

processing program is very strongly influenced, perhaps

dominated, by the question of what program other people have

chosen to buy. That means that even if a programmer could find a

completely different way to write a word processing program, he

has to be able to make it read the dominant program's files, and

mimic its features, if he is to attract any customers at all.

That hardly sounds like completely divergent creation.

Seeing that software failed to fit the Procrustean bed of

place would be catastrophic. They believed that, lacking

patent's high standards, copyright's monopolies would

proliferate widely. Copyright's treatment of follow-on or

"derivative" works would impede innovation, it was thought. The

force of network effects would allow the copyright holder of

whatever software became "the standard" to extract huge monopoly

rents and prevent competing innovation for many years longer

than the patent term. Users of programs would be locked in,

unable to shift their documents, data, or acquired skills to a

competing program. Doom and gloom abounded among copyright

scholars, including many who shared Mr. Gates's basic

premise--that software should be covered by property rights. They

simply believed that these were the wrong property rights to

use.

though it is hard to judge whether those problems outweighed the

economic benefits of encouraging software innovation,

production, and distribution. But the negative effects of

actions by courts and, to a much lesser extent, Congress, so

that the worst scenarios did not come to pass. Courts

interpreted the copyright over software very narrowly, so that

it covered little beyond literal infringement. (Remember

Jefferson's point about the importance of being careful about

the scope of a right.) They developed a complicated test to work

out whether one program infringed the details of another. The

details give law students headaches every year, but the effects

were simple. If your software was similar to mine merely because

it was performing the same function, or because I had picked the

most efficient way to perform some task, or even because there

was market demand for doing it that way, then none of those

similarities counted for the purposes of infringement. Nor did

material that was taken from the public domain. The result was

that while someone who made literal copies of Windows Vista was

clearly infringing copyright, the person who made a competing

program generally would not be.

In addition, courts interpreted the fair use doctrine to cover

"decompilation"--which is basically taking apart someone else's

program so that you can understand it and compete with it. As

part of the process, the decompiler had to make a copy of the

program. If the law were read literally, decompilation would

hardly seem to be a fair use. The decompiler makes a whole copy,

for a commercial purpose, of a copyrighted work, precisely in

order to cause harm to its market by offering a substitute good.

But the courts took a broader view. The copy was a necessary

part of the process of producing a competing product, rather

than a piratical attempt to sell a copy of the same product.

This limitation on copyright provided by fair use was needed in

order to foster the innovation that copyright is supposed to

encourage. This is a nice variation of the Sony Axiom from

Chapter 4.

These rulings and others like them meant that software was

protected by copyright, as Mr. Gates wanted, but that the

imitation and competition. Is that enough? Clearly the network

effects are real. Most of us use Windows and most of us use

Microsoft Word, and one very big reason is because everyone else

does. Optimists believe the lure of capturing this huge market

will keep potential competitors hungry and monopolists scared.

The lumbering dominant players will not become complacent about

innovation or try to grab every morsel of monopoly rent, goes

the argument. They still have to fear their raptor-like

competitors lurking in the shadows. Perhaps. Or perhaps it also

takes the consistent threat of antitrust enforcement. In any

event, whether or not we hit the optimal point in protecting

software with intellectual property rights, those rights

certainly did not destroy the industry. It appeared that, even

with convergent creativity and network effects, software could

be crammed into the Procrustean bed of copyright without killing

it off in the process. Indeed, to some, it seemed to fare very

well. They would claim that the easy legal protection provided

by copyright gave a nascent industry just enough protection to

encourage the investment of time, talent, and dollars, while not

prohibiting the next generation of companies from building on

the innovations of the past.

In addition, the interaction between copyright and software has

produced some surprising results. There is a strong argument

that it is the fact that software is copyrightable that has

enabled the "commons-based creativity" of free and open source

software. What does commons-based creativity mean? Basically, it

is creativity that builds on an open resource available to all.

An additional component of some definitions is that the results

of the creativity must be fed back into the commons for all to

use. Think of English. You can use English without license or

fee, and you can innovate by producing new words, slang, or

phrases without clearance from some Academie Anglaise. After you

coin your term, it is in turn available to me to build upon or

to use in my own sentences, novels, or jokes. And so the cycle

continues. As the last chapter showed, for the entire history of

musical creativity until the last forty years or so, the same

had been true of at least a low level of musical borrowing. At

the basic level of musical phrases, themes, snatches of melody,

even chord structures, music was commons-based creativity.

Property rights did not reach down into the atomic structure of

music. They stayed at a higher level--prohibiting reproduction of

complete works or copying of substantial and important chunks.

So in some areas of both music and language, we had commons-

based creativity because there were no property rights over the

relevant level. The software commons is different.

The creators of free and open source software were able to use

the fact that software is copyrighted, and that the right

attaches automatically upon creation and fixation, to set up

new, distributed methods of innovation. For example, free and

open source software under the General Public License--such as

Linux--is a "commons" to which all are granted access. Anyone may

use the software without any restrictions. They are guaranteed

access to the human-readable "source code," rather than just the

inscrutable "machine code," so that they can understand, tinker,

and modify. Modifications can be distributed so long as the new

creation is licensed under the open terms of the original. This

creates a virtuous cycle: each addition builds on the commons

and is returned to it. The copyright over the software was the

"hook" that allowed software engineers to create a license that

gave free access and the right to modify and required future

programmers to keep offering those freedoms. Without the

enforceable. For example, someone could have modified the open

program and released it without the source code--denying future

users the right to understand and modify easily. To use an

analogy beloved of free software enthusiasts, the hood of the

car would be welded shut. Home repair, tinkering, customization,

and redesign become practically impossible.

Of course, if there were no copyright over software at all,

software engineers would have other freedoms--even if not legally

guaranteed open access to source code. Still, it was hard to

deny that the extension of the property regime had--bizarrely, at

first sight--actually enabled the creation of a continuing open

commons. The tempting real estate analogy would be

environmentalists using strong property rights over land to

guarantee conservation and open access to a green space, where,

without property rights, the space could be despoiled by all.

But as I have pointed out earlier, while such analogies may help

us, the differences between land and intellectual property

demand that they be scrutinized very carefully. It is hard to

overgraze an idea.

So much for copyright. What about patents? U.S. patent law had

drawn a firm line between patentable invention and unpatentable

idea, formula, or algorithm. The mousetrap could be patented,

but not the formula used to calculate the speed at which it

would snap shut. Ideas, algorithms, and formulae were in the

public domain--as were "business methods." Or so we thought.

The line between idea or algorithm on the one hand and

patentable machine on the other looks nice and easy. But put

that algorithm--that series of steps capable of being specified

in the way described by the Turing machine--onto a computer, and

things begin to look more complex. Say, for example, that

algorithm was the process for converting miles into kilometers

and vice versa. "Take the first number. If it is followed by the

word miles, then multiply by 8/5. If it is followed by the word

kilometers, multiply by 5/8 . . ." and so on. In the abstract,

this is classic public domain stuff--no more patentable than

E=mc2 or F=ma. What about when those steps are put onto the tape

of the Turing machine, onto a program running on the hard drive

of a computer?

To secular ears, "Jesus Is All the World to Me" is a plodding