Listen to the Stopped Clock, Part 2


Tim Lee and I had an exchange on his Technology Liberation Front blog that I thought might be instructive on a topic we’ve dealt with before both here and on Kings of A&R: Avoiding unknowing grants under the Creative Commons license. You remember Creative Commons: Professor Lessig and his acolytes who “changed the way we think about copyright” according to Jonathan Fanton, the radical president of the MacArthur Foundation (and former president of the New School for Social Research). I’m sure the bumbling Creative Commons has changed the way MacArthur Foundation thinks about copyright. It started with Tim’s posting “Listen to the Stopped Clock” (meaning me). But first, a little motif about luddites and stopped time pieces from Pulp Fiction by Quentin Tarantino & Roger Avary (Copyright 2004 Miramax Films) and performed by Christopher Walken:

CAPT. KOONS

This watch I got here was first purchased by your great-granddaddy. It was bought during the First World War in a little general store in Knoxville, Tennessee. It was bought by private Doughboy Ernie Coolidge the day he set sail for Paris. It was your great-granddaddy’s war watch, made by the first company to ever make wrist watches. You see, up until then, people just carried pocket watches. Your great-granddaddy wore that watch every day he was in the war. Then when he had done his duty, he went home to your great-grandmother, took the watch off his wrist and put it in an ol’ coffee can. And in that can it stayed ’til your grandfather Dane Coolidge was called upon by his country to go overseas and fight the Germans once again. This time they called it World War Two. Your great-granddaddy gave it to your granddad for good luck. Unfortunately, Dane’s luck wasn’t as good as his old man’s. Your granddad was a Marine and he was killed with all the other Marines at the battle of Wake Island. Your granddad was facing death and he knew it. None of those boys had any illusions about ever leavin’ that island alive. So three days before the Japanese took the island, your 22-year old grandfather asked a gunner on an Air Force transport named Winocki, a man he had never met before in his life, to deliver to his infant son, who he had never seen in the flesh, his gold watch. Three days later, your grandfather was dead. But Winocki kept his word. After the war was over, he paid a visit to your grandmother, delivering to your infant father, his Dad’s gold watch. This watch. This watch was on your Daddy’s wrist when he was shot down over Hanoi. He was captured and put in a Vietnamese prison camp. Now he knew if the [Vietnamese] ever saw the watch it’d be confiscated. The way your Daddy looked at it, that watch was your birthright. And he’d be damned if the [Vietnamese] were gonna put their…hands on his boy’s birthright. So he hid it in the one place he knew he could hide somethin’. His ass. Five long years, he wore this watch up his ass. Then when he died of disentary, he gave me the watch. I hid this uncomfortable hunk of metal up my ass for two years. Then, after seven years, I was sent home to my family. And now, little man, I give the watch to you.

Tim posted:
Chris,
Your article “Carefully Co-writing without Creative Commons” doesn’t appear to be a critique of the creative commons license so much as an extended exercise in sneering at the CC license. You tell people to read the license, yet you appear not to have read the license yourself–or if you did, you couldn’t be bothered to make a good-faith effort to interpret its terms.

And then there are cases where your criticisms appear to be completely off-base. For example, you state:

The first problem with Creative Commons is there is no Creative Commons “legal code” for a song. Given that Creative Commons and their fellow travelers the Electronic Frontier Foundation, Public Knowledge and other front groups don’t have a clue about the music business for one thing and what a song is for another, this is not surprising.

If you look at an actual creative commons license, and you’ll find that the word “song” doesn’t appear once in it, whereas the word “recording” appears three times, and the license specifically mentions performance royalties, mechanical rights, and statutory royalties. Now, I’m not a lawyer, so I don’t know if those provisions are well-crafted. Maybe they have loopholes big enough to drive a truck through. But if so, you never get around to explaining what they are.

Later in the post, you write:

It is also not clear to me if the “original author” retains any rights under a Creative Commons license. For example, if the “original author” puts the work in what is effectively the public domain, does that mean that the original author can still exploit the work commercially? Or more accurately, why would the “original author” want to exploit the work commercially if everyone else could use it for free? I don’t know, but if anyone figures it out, please let me know.

I find it hard to believe you’re really unaware of the fact that the Creative Commons license has a non-commercial license option that allows personal use but requires the author’s permission to exploit the work commercially. Moreover, the question of which rights are retained by the author is not a mystery–it’s spelled out quite clearly in the license itself. Now, maybe you think the terms of the contract reserving rights to the author have loopholes or other problems, but to this non-lawyer’s eye, it appears to state pretty clearly which rights are reserved by a CC license. It strikes me as disingenuous to pretend these terms simply don’t exist.

In short, it’s obvious you don’t like the CC license, but it’s not clear why. Most of your arguments are at best unsubstantiated and at worst downright misleading.

Posted by: Tim at October 1, 2006 12:20 PM

Posted by: Chris Castle at October 1, 2006 1:47 PM:

Since you brought it up–the most fundamental, a priori distinction that a new music lawyer must understand is that in each sound recording there are two copyrights: the copyright in the sound recording, the circle p, and the copyright in the musical work that is embodied in the sound recording, the circle c. The circle p and circle c are frequently owned by different people or companies.

Now you should be able to stop right there and see that if Creative Commons catagorizes their licenses based on FILE TYPE as opposed to COPYRIGHT TYPE, you will probably get the WRONG result much of the time, meaning that there will be no proper treatment of recording and song in the grant of rights. In fact, you will get the wrong result so frequently that it’s almost not worth talking about the random instances where you get it right, unless you’re drafting for monkeys with dartboards. Which I’ve never been asked to do.

This is why music lawyers and copyright lawyers find the whole Creative Commons license saga both laughable and scary.

In case it’s not obvious–talking about a “mechanical rights” in an “audio” license that doesn’t address the circle c copyright is GIBBERISH. First of all, “mechanical right” is kind of a ham handed way to describe the reproduction right of the owner of the copyright in the musical work. It is a term of art, true, but why use an undefined term of art in a license that is to be used largely by laypeople. It is also not a great way to deal with a grant of rights in a global license that is designed to be applicable in any country of the world.More importantly–why use a term of art applicable to songs in a license for “AUDIO”. A fair reading of the CC audio license is that it is intended for recordings. So why talk about mechanicals in a license for recordings?

I’m sure everyone’s eyes are glazing over right about now but that is my point. It’s not the unified field theory, but it’s complex, inside baseball stuff, and the CC license simply does not work. To coin a phrase: You’re fired. Or rather: They’re fired. I don’t expect you, Tim, to take the time to figure this stuff out, any more than I expect an artist or writer to do the same. But I do expect more–much, much more–of the folk from the Google Law School.

It would have been so easy for the Creative Commons drafters to say “Song License” and “Recording License”. They didn’t. Now what might have been the cause of that failure? Aside from there being a fine line between stupid and clever. The only answer I can come up with is that they thought they understood, and when they found out they were wrong–which I firmly believe they now know–they are too embarassed to admit it and don’t know how to fix it.

The point I am making about what rights the original author retains is more directed (as is the article) at co-writes. Now, trust me enough to tell you that co-writes are very, very, very common in the music industry as any major (or minor) dude will tell you.

The Creative Commons license simply does not address this reality. It’s just not there. Without intending to cast aspersions, I will tell you that I think the reason it’s not there is that the entire Creative Commons concept would not work, or certainly would not scale, unless all the co-writers agreed to the CC license. And since it’s hard to get co-writers to agree on splits much less license terms, why give them the chance?

The point of my article is that no one should co-write with anyone who intends to use a Creative Commons license, in any of its species, unless they too intend to go along with each CC license. The “original author” of a co-written work is ALL the writers. The CC license does not make this distinction. So how can anyone know with certainty what rights each co-writer–i.e., the “original author”–retains unless all co-writers are party to the CC license which doesn’t provide for co-writers? Particularly when this issue is not explained at all by Creative Commons or ever addressed in the license. The point I make is that I find it confusing. Maybe you don’t, but I do. But I’m just a country lawyer and I’m not as smart as you city fellers.

I think it’s pretty safe to say that anyone TAKING a CC license would have no idea if there were any co-writers or what they thought. The licensee would be pretty innocent, which makes it all the worse.

The way that the music industry has solved the co-writer problem for, oh say a couple hundred years or so, is to have an administration agreement between or among co-owners of copyright that applies during the copyright term. It would have been very simple for Creative Commons to post a simple administration agreement, or even explain the co-writer issues in the license itself. But that would require co-authors to “sign” a click through agreement which is an issue that has kind of a dearth of case law. Or–and here’s a shocker–print it out and sign it.

Ooopsie.

So–there is a difference between Creative Commons the organization which I hear receives a lot of cash–and the Creative Commons license. The idea of a gratis license is certainly nothing new, but the idea of empowering Lawrence Lessig by giving away your works is kind of a new, new thing.

These are not arguments, by the way, they are facts. And I’m not the only one bothered by them or keeping an eye on the situation in case government intervention is needed.

An argument would be “I think CC is bad/good because writers should/shouldn’t be able to give their works away to help Lessig get grants and here’s why…” I take no position on whether the idea of the CC license is good or bad, anymore than I take a position on whether a copyright owner should be able to grant a free license on their own as copyright owners have been able to do for several hundred years before Creative Commons came along.

I am trying to understand its effects as drafted–I’m talking facts here. A fact is–the CC license is sloppy and can have unintended consequences, so co-writing songwriters should have an agreement amonst themselves not to use it, just like they can, and frequently do, have an agreement amongst themselves not to license for hygiene products.

CLC posting Copyright 2006 Christian L. Castle. All Rights Reserved.