Derrick Oien

Thursday, February 17, 2005

The Copyright Fairy

Earlier this week I did a radio show on KPBS with Dave Winer. At one point in the conversation I stated that if the two of us were talking, and we had a Who song playing in the background, that if we recorded that conversation and made it into podcast then this would be copyright infringement unless we had the permission of the various rights holders. Dave retorted that he didn't necessarily think that is correct. There may be some strange application of Fair Use that I have missed over the last 7 years or so, but I don't believe that is the case.

What I found particularly funny about this exchange is how some of the blogger intelligentsia hold themselves out as thoughtful and informed yet fail to do the simple homework when all of the source materials are freely available for them. The DMCA? You can find it online. The 2nd district court rulings in MP3.com vs RIAA? Online. 9th district Court rulings in Napster vs RIAA? Online. Kazaa, etc. etc. Sorry for the lack of links but you get my point.

The conclusion that I have come to is that many including Dave wish that the Copyright fairy would come along and change the existing body of law because its just not fair. Although I agree with many who think that it would be great if we could use samples and play mashups, and play the songs of our youth in podcasts and home videos etc. the reality today is that you can't.

I propose that Dave and others who question the status of how podcasts fit into existing copyright law take some of the following steps:

1. Go read the law. I would include the DMCA and the various rulings in the dozens of digital music lawsuits over the past 7+ years.

2. Talk to your friends Larry Lessig and Hank Barry. I spoke with Hank briefly at Bloggercon and although we didn't talk at length I am certain that he would reiterate what I have said.

3. Immediately stop playing copyrighted music in your podcasts. If you care about the technology and its potential, don't make it a target for yet another round of lawsuits.

4. Start a conversation with the RIAA and the publishers. I am meeting with the CEO of the Harry Fox Agency next week. Understanding how they view the law and if there are opportunities to obtain experimental licenses or find other accommodations is a better way than just pretending or hoping that everything is just fine.

I would be extremely excited to find out that I am wrong about this, but given my experience, I have a very high degree of confidence that I am spot on.

I recall how the labels held technologists in great contempt during the late 1990s in the digital music space because many of them wouldn't take the time to either take a walk in their shoes, or take the time to understand the law. I find it ironic that those who would hold people to higher standards when they talk of the blogosphere, technology or internet ethics etc. can't do the same when faced with issues around intellectual property.

472 comments:

1 – 200 of 472   Newer›   Newest»
Anonymous said...

It would be nice if you expounded on your view of fair use, as it is pretty ambiguous. How might it apply? When would it not? My understanding was if the work was used sparingly, and there was an overall completely different point, and the whole thing was value-added, it would be a good argument for fair use.

Derrick Oien said...

One of the problems with the DMCA, imho, was that it sort of stands on it's own as it relates to copyright law and it was poorly drafted. There currently isn't existing case law that I am aware of that would establish Fair Use as it relates to digital products. Specifically as it relates to Fair Use this post highlights an example of how poorly this legislation was drafted. Check out the excerpted portion.

http://www.sethf.com/infothought/blog/archives/000314.html

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singer Caruso famous. And he got American women to
smoke with a publicity event he helped orchestrate
in 1929.

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like chicken soup authors Mark Victor Hanson and
Jack Canfield. One reason Deepak Chopra remains a
bestselling author is the publicist behind him:
Arielle Ford.

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speakers, singers and celebrities for a moment. What
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Barnumized? Can you be made famous?

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hiring a publicist who knows how to find or create a
news worthy subject out of you or something you do.

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people. Sometimes all you need is one wild event to
draw attention to everything else you do:

* Barnum once showed a preposterous "Fejee Mermaid."
The curious half-monkey-half fish increased his
ticket sales 33%.

* In our own century a circus once displayed a
"Unicorn." While everyone knows unicorns aren't
real, ticket sales increased 55%. Again, the one
publicity stunt drew crowds to see everything else
being offered.

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attention. In an article I wrote titled "Hidden
Selling," I talk about the various people who are
getting rich and famous by sponsoring events that
serve a good cause. Bill Phillips, for example, is
selling people on the idea of getting fit. He gives
away his book, and a video, and holds yearly
contests. He donates his money to the Make-A-Wish
Foundation. All of this is making Bill
internationally famous. How does he make any money?
He sells nutritional supplements. Back this fact is
"hidden." What Bill is doing is getting fame, and
then using that fame to make money. Very, very
smart.

One of the easiest ways to begin to seek fame is to
write a book. You still have to promote the book, of
course, but as an author you have an excuse to get
publicity. That's what Evel Knievel wanted when he
called me. He wanted me to help him write his life
story. He knew that a book could bring him more
fame. (I turned him down.) Many other people know
this fact, too, from Donald Trump to J. Paul Getty
to Madonna, and that's why they write (or hire
someone to write) books for them.

By now you've heard the quote from Andy Warhol that
in the future everyone will be famous for 15 minutes.
My belief is that if you create fame for yourself
that sticks, that fame will be a credential you can
bank on for the rest of your life.

Take Evel Knievel. His publicity stunts Barnumized
him in the 1970s. Yet we still know his name today,
thirty years later. He wedged his name into public
awareness through his fame tactics. And he's still
cashing in on his name. In fact, his name is so
strong that it has helped launch the career of
another daredevil: Evel's own son, Robbie Knievel.

Most people know the name Tom Thumb today, as well.
Why? The fame Barnum created for his little friend
still lives. Fame can do that for you, too. It can
become a lasting advertisement for who you and what
you do. From then on, everything you touch will get
automatic attention. Tom Thumb used to sell toys
and other products. So did Evel Knievel. As a
result of their fame, these otherwise mediocre
products sold. The products weren't important, it
was the name associated with the products. The more
famous the name, the more easily the products sold.
That's why Pepsi hires the latest hot stars to
appear in their commercials. Their fame brings
favorable attention to Pepsi.

But what if you can't afford a publicist? Easy.
What you have to do is become your own publicist
and Barnumize yourself.

Let me explain:

A year or so ago I wrote a news release that helped
make Jeff DeLong---barely 28 years old---wealthy.
The headline read:

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Unusual cards don't greet, say Hit The Streets

Paul Krupin of the ImediaFax news bureau sent it
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radio interviews the day his release hit. The
Associated Press picked up the story at least twice
and spread the word to the media nationally. The
number of times the story was reprinted is
impossible to tally. But as a direct result, Jeff's
website sales blasted to $20,000 a week.
(A week!)

What made his news release so successful?

1. There was news here.

I didn't have to dig too hard to see that Jeff's
greeting cards were newsworthy in and of themselves.
(You send his c-ya cards out when you *end*
relationships.) Too many people send out news
releases without any news. They are thinly disguised
ads. Editors hate ads. They want NEWS.

2. We tied it to current news.

Valentine's Day was right around the corner. While
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his release. It helped make his news relevant.
Whenever you can tie your product or service to
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media.

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Paul Krupin hand picked a list of media contacts.
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You can get publicity for virtually any product or
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Jeff's release was an example of one and three. (His
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When Barry Michaels in Australia hired me to write a
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this!

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think like a reporter, get creative, and plug you
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secret to getting rich and famous today----within
only 90 days---and with or without a mermaid!

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Sad to say I just got back from a bowling tournament and decided to log in and do some websurfing. Blogger I love your blog. I had some very good laughs. I am doing a paper on admiral car insurance and have been downloading information for the last hour. I don’t know how I came across The Copyright Fairy but I am glad I did. It has set me back a little because I have spent the last hour reading your archives. If you don’t mind I would like to add you to my favorites so I can back again and read some more. Well I need to get back to admiral car insurance. I am almost finished with it. Great job.
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