Kid Rock doesn't steal, but is there anything original about him?

Speaking of Kid Rock, of course, brings to mind his own appropriation of Lynyrd Skynyrd's Sweet Home Alabama, Warren Zevon's Werewolves of London, and Bog Seger's Night Moves, which can't help but bring back a fond nostalgia for the much maligned decade of my teens (the '70s). I have no doubt, of course, that Kid Rock paid big bucks to the copyright holders of the songs he appropriated (though, perhaps, not to Seger, from whose Night Moves there isn't quite copying), but I'm sure he's made far, far more than he paid.

And could there possibly be a more fitting instance of The Manual's principles in action?

Kid Rock says he was kidding about saying it's okay to download his songs for free.

Kid Rock, "who has resisted selling his music on iTunes and other online stores, tells The Associated Press he was just kidding." (Hope AP doesn't send me a takedown notice!)

Copyright Ignorance from MTV.com

In connection with yesterday's post about Girl Talk's new album, I can't help but mention today's post on MTV.com by James Montgomery. Montgomery writes of listening to the album while flying on a plane along with L.L. Cool J and wondering:

Song seven on the [Girl Talk] record is called "Like This," and it features, in addition to a whole lot of other things, two very audible samples of LL's "Mama Said Knock You Out," two samples that Girl Talk did not obtain LL's permission to use, which means that they appear in the song illegally, which means that LL is not getting paid for their usage, which would probably make LL very upset if he had any idea that this was happening. (emphasis added.)

Then Montgomery writes that Girl Talk's Greg Willis uses "the concept of 'fair use' to shield himself from any pesky copyright suits."

I can't believe someone from MTV.com is writing on these issues from such a state of ignorance. It's far from certain that what Girl Talk is doing is "illegal," and "fair use" is no "technicality" to shield one from copyright infringement lawsuits. It's one's constitutional right.

And, incidentally, D.J. Danger Mouse has not, as Montgomery implies, "left the [musical collage] genre behind.

Addendum: First, according to Will in the comments, Mr. Montgomery should have known better than to think LL Cool J would've been upset by Girl Talk's appropriation because "LL recently recorded a 'mixtape' called 'Return of the G.O.A.T.' featuring a number of freestyles over uncleared sampled beats."

Second, and more important in trying to determine whether Girl Talk's appropriations constitute fair use, Mr. Montgomery's own evaluation of Girl Talk's music basically makes the case that the use is "transformative" and therefore does constitute fair use. He writes: "[Girl Talk's] new album is so great, the kind of thing that could not have existed 10 years ago, an audio time capsule of the era in which we live. The kind of thing that can inspire post-millennial dilemmas at 37,000 feet."

Then again, inasmuch as Mr. Montgomery is a shill for MTV, and MTV is part of a corporate conglomerate with every interest in hiding the realities of fair use from the public, it should be no surprise that he writes with such ignorance about fair use. Here are some posts to try to begin to bring him up to speed.

Is the use "commercial" if you ask for a donation in return?

Girl Talk's "Feed the Animals" is the latest product from Illegal Art that raises the question, posed by the N&VR Journal: "at what point does sampling end, and a new creation with a new 'songwriter' begin?" It's a question posed again and again by musical collage. It is not, as this blog again and again points out, a position that is "anti-copyright." Rather, as Illegal Art's founder, Philo T. Farnsworth, explains:

I should clarify that we are and we aren't anti-copyright. We're against copyright law when it impedes an artist's ability to interact with pre-existing recordings. We're not against copyright protecting artists from someone copying their material and selling it without compensating them.

But, as we all know by now, whether the use of copyrighted material is a fair use requires a holistic consideration of four factors, including the purpose and character of the use, which itself includes a consideration whether the use is commercial or not. "Feed the Animals" raises a question with respect to this factor I have never encountered before: is the use a commercial one if the creator, instead of selling the product, offers it along with a request for a donation? Illegal Art will allow you to download "Feed the Animals" without donating anything; I did so. That's no sale. Under basic contract law, therefore, this deal is no "contract": one can obtain the album without giving or promising anything in return.

Of course, whether a use is commercial is only one factor among many in determining whether it is a fair use; it is not even the entirety of the "nature of the use" factor. But the fact Illegal Art will give away the product for nothing does weigh in favor of its legality.

And, like the video discussed yesterday, the album is there, available on the internet, as yet unchallenged by any of the owners of the material appropriated by it. There is always that vast amount of human behavior that may or may not be illegal but still happens in a relatively unimpeded way. There also too is a vast amount of copyright overclaiming by copyright holders that use there economic weight to stop practices that would, if fought for, be upheld. Law is not always the answer to our questions, particularly when we are dealing, as we are, with a material reality that has changed and is changing as radically as the material reality of information in the digital age.

Digital locks, fair use, and the Constitution

Canada is considering legislation that would make it illegal to break digital protections on copyrighted material (i.e., so-called "DRM" ("Digital Rights Management") protection"). The Canadian bill apparently is intended to override existing rights, including the right to backup or copy digital materials for personal use or for fair use of materials with DRM protection. Apparently too, "mash ups and satire will be criminalized by the bill if they 'distort or mutilate a copyright performance.'" A group of Canadian musicians have severely criticized the bill, stating that "[t]he question is, who gains from this bill? It’s not musicians. Musicians don’t need lawsuits, we don’t need DRM protection. These aren’t the things that help us or our careers. What we do need is a government that is willing to sit down with all the stakeholders and craft a balanced copyright policy for Canada that will not repeat the mistakes made in the United States.”

The group is referring to 17 U.S.C. Section 1201 of the Digital Millennium Copyright Act,(the "DMCA"), which purports to make it unlawful to override a CD or DVD's digital copyright protection even if the copying of the copyrighted material is legitimate, non-infringing fair use.

Nevertheless, I'm not sure a court could impose liability under Section 1201 of the DMCA on someone who evades DRM protection on a CD or DVD if the copying is for a fair use. Fair use is founded in the Constitution, both in Article I, Section 7, which gives Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," and in the First Amendment protection of free speech. In other words, fair use is a constitutional right, and constitutional rights cannot be derogated by legislation.

Not everyone agrees. Chris Soghoian writes that the creators of the Hillary's Inner Tracy Flick video are in violation of the DMCA's provision making it unlawful to copy material under DRM protection even if the video otherwise makes fair use of scenes from the movie Election. Soghoian cites to the statement by the U.S. Court of Appeals for the Federal Circuit in Atari v. Nintendo, 975 F.2d 832 (Fed. Cir. 1992), that "[t]o invoke the fair use exception, an individual must possess an authorized copy of a literary work." Thus, Soghoian concludes, if the creator of the video "used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mash up) is in no way authorized. This means, unfortunately for [the video's creator], that it would have no fair-use defense, and could thus face a copyright infringement lawsuit."

I'm not so sure. Congress cannot through legislation deprive someone of using material in a way the First Amendment of the Bill of Rights and Article I, Section 7 of the Constitution permit. Thus, I am confident, a statute that makes it unlawful to copy for fair use purposes any document stating "no copy of this document is permitted by its author for any purposes" would be unenforceable under the Constitution. I do not see why DRM protection, which can generally be cracked very easily, should, for fair use purposes, be treated any differently than such a bare declaration that any copying is unlawful.