Posted on November 11, 2008 in IP by Brian RoweView Comments

This is the first of a series of reports for the Grammy MusicTech Summit 2008. On Thursday of last week I participated in the Fair Use panel. The panel was well run and covered the gambit of topics from music sampling in transformative works to to file sharing. Here are my initial notes on the panel:


Daryl Friedman – The Recording Academy (not the RIAA)


Jule Sigall – Microsoft
Jule was very centrist on the issues presented, this is the second MS Attorney that I have seen eye to eye with on some of IP issues, the first being Andrew Culbert who gave a great presentation on patent trolls at Seattle University Law last year. Jule did emphasize the history of fair use a case law that allowed for reasonable exceptions from almost the beginning of copyright.

Jule also brought up some interesting points related to the User Generated Content Principles authored by Mircosoft, Disney and Veoh (who recently won a big DMCA case) amongst others.  The idea of  taking fair use into account before sending a DMCA takedown.  Maybe I was overly critical of the UGC principles when they came out, in retrospect they have some positive and negative points.

Jay Rosenthal – National Music Publishers Association
Q: What words have the most meaning to you in the Patent and Copyright Clause?
A: Artists and Progress – without paying artist no one will create content.
Jay focused a lot of attention on fees for use and making sure that P2P is not considered fair use. He also emphasized how difficult fair use can be to determine. Jay’s rhetoric was heavily permeated with the “property” norms repeating Mark Twain’s characterizing the public domain as vultures.

Jay’s response to the Lenz v. Universal was interesting, he argued that the DMCA only gives a cause of action to people who abuse the takedown provisions when they do not own the copyright in the work where the takedown is asserted. I will have to look into this theory.

Although I strongly disagreed with many of Jay’s points on the panel it I do respect his perspective.  He the professional artist at heart, I hope to speak with again in a less adversrial setting, I think we have more in common then the panel presented.  I too want people to be able to make a living off music I just do not think exclusive monopolies are the best way to do this.

Brian Rowe – FFIP
Q: What words have the most meaning to you in the Patent and Copyright Clause?
A: Progress Copyright was designed to encourage creation, unfortunately now it is working to discourage creation by adding Transactional costs that make standing on the shoulders of giants nearly impossible. We are being asked to stand on the shoulders of lawyers which kills creativity.

When first asked this question I thought about mentioning the big word that is not in the clause, property. Viewing copyrights as rivalrous property is one of the largest things that is standing in the way of real innovation.

After the panel one of the other conference participants pointed out this great quote to me:

If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.

- George Bernard Shaw


Full audio and video for the panel should be available in the next few weeks.

PS This post was auto posted the author Brian Rowe is on vacation and will be back next week.

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