Re: [dvd-discuss] Rhapsody in Blue and the death of Jazz

[Ernest Miller <ernest.miller(at)aya.yale.edu>]

microlenz@earthlink.net wrote:
> On 1 Jun 2002 at 23:18, Ernest Miller wrote:
> 
> Date sent:      	Sat, 01 Jun 2002 23:18:48 -0400
> From:           	Ernest Miller <ernest.miller@aya.yale.edu>
> To:             	dvd-discuss@eon.law.harvard.edu
> Subject:        	Re: [dvd-discuss] Rhapsody in Blue and the death of Jazz
> Send reply to:  	dvd-discuss@eon.law.harvard.edu
> 
> 
>>Oh, please.  Don't give me bullshit about an "excluded middle."  
> 
> 
> Well, that's what a statement such as "Should we abandon copyright entirely?" 
> is. Abandoning it is an extreme act that I don't recall anybody advocating 
> here. The question is what BOUNDS should be place upon it. History has shown 
> that there are many middle grounds that are viable.

Well, duh.  But you didn't seem to be advocating any coherent bounds, 
just complaining.


> 
>>Even if 
>>you believe that copyright law is subject to the First Amendment, 
> 
> 
> Look at the Scientology cases and tell me if copyright is not being used to 
> stifle speech because it is critical. Copyright MUST be subjugated to the needs 
> of the First Amendment. One cannot have freedom of speech if anything one 
> writes, copies, parodies gets one slapped with a copyright infringement suit. 
> That's a chilling effect.
> 
> (BTW look at the Scientology cases. They are claiming copyright protection for 
> things that are written but NOT published (i.e., made available to the 
> public.). At best they should be "trade secrets")


Of course copyright can be used to stifle speech.  So can many other 
things, like property rights.  The question is not whether speech is 
stifled but whether such stifling is in accord with the First Amendment. 
  Sometimes it may be.

Frankly, I'm not convinved that publication/non-publication is a valid 
distinction.  In any case, the Scientology cases are problematic on a 
number of levels.  For example, the fact/expression dichotomy goes 
against the Scientologists, since in other works they say every word of 
L.Ron is critical.

> 
>>it is 
>>hard to see how a compulsory license violates the First Amendment. 
> 
> 
> Compulsory....that's a strong word. It rather takes the "free" out of "free 
> market"...in the case of music, another middle ground would be to set limits on 
> the commercial use such that if the "revenue" is below a certain level or uses 
> less than some amount (e.g., jazz improv.) it's beneath notice. 
> 

Copyright is inherently a distortion of the free market.

There are already such limits, i.e. Fair Use.  What guidelines would you 
choose?


>>anything, a compulsory license for reasonable fees (in addition to the 
>>protections of Fair Use and First Sale) seems the most friendly sort of 
>>copyright law you could have.  What the heck would you propose that 
>>would still count as "copyright" but would be even more First Amendment 
>>friendly?
> 
> 
> Where copyright involves significant commercial value not the nickel and dime 
> variety ASSCAP desires. What ASCAP, MPAA, RIAA etc all desire is a perpetual 
> steady income of nickel and dimes. You sang "Happy Birthday" give us your 
> nickel. Hey...you found out that you used ten bars of  Britney SPears latest 
> tune in your jazz improv the other night..that's infringment but we'll let you 
> off for $100 and if you want to license those 10 bars we can do that too. We'll 
> give you a great deal. You can play them 150 times for $65. That's another 
> chilling effect.
> 
> The point is that there are alternatives to abondoning copyright even if one 
> does NOT agree that compulsary licensing is a desirable solution.
> 

What are your alternatives?  How would you determine "significant 
commercial value"?

You don't have to pay for "Happy Birthday", unless it is a "public 
performance."  If you are a jazz musician playing in a bar, in general, 
it is the bar that is paying the rights to ASCAP.

I really don't understand what your concern with jazz musicians is.  Are 
there any example of musicians who couldn't perform because of ASCAP? 
Is ASCAP charging too much, or should they not charge at all?  How 
should they charge, and why?


>>microlenz@earthlink.net wrote:
>>
>>>On 1 Jun 2002 at 22:28, Ernest Miller wrote:
>>>
>>>Date sent:      	Sat, 01 Jun 2002 22:28:35 -0400
>>>From:           	Ernest Miller <ernest.miller@aya.yale.edu>
>>>To:             	dvd-discuss@eon.law.harvard.edu
>>>Subject:        	Re: [dvd-discuss] Rhapsody in Blue and the death of Jazz Send
>>>reply to:  	dvd-discuss@eon.law.harvard.edu
>>>
>>>
>>>
>>>>What chilling effect?  Should we abandon copyright entirely?
>>>
>>>
>>>Bzzzzt...that's the fallacy of the excluded middle. No...but copyright must
>>>not be extended down to the point that it even starts to infringe the first
>>>amendement. Is a jazz musician's music any less speech if a computer program
>>>is? It takes my brain to read source code but I can understand the speech of
>>>many jazz musicians without having to read words. 
>>>
>>>THe point here is that speech is not must vocalization. It included printing
>>>200 yrs ago and technology has created more means. Speech, what is that?
>>>Speech is the expression of ideas and emotions.
>>>
>>>While I reazalize this is heresy to many, but the alternative to an growing
>>>number of fair use defenses is simply to reduce the protection of copyright.
>>>Where is that balance?
>>>
>>>
>>>
>>>>microlenz@earthlink.net wrote:
>>>>
>>>>
>>>>>It's not the accountancy...it's the chilling effect that is the problem.
>>>>>
>>>>>On 1 Jun 2002 at 22:07, Ernest Miller wrote:
>>>>>
>>>>>Date sent:      	Sat, 01 Jun 2002 22:07:43 -0400
>>>>>From:           	Ernest Miller <ernest.miller@aya.yale.edu>
>>>>>To:             	dvd-discuss@eon.law.harvard.edu
>>>>>Subject:        	Re: [dvd-discuss] Rhapsody in Blue and the death of Jazz
>>>>>Send reply to:  	dvd-discuss@eon.law.harvard.edu
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>>The cost of a mechanical reproduction license, so that I can sell my 
>>>>>>cover of Britney Spears' latest is $0.08.  Not too bad.
>>>>>>
>>>>>>microlenz@earthlink.net wrote:
>>>>>>
>>>>>>
>>>>>>
>>>>>>>D.C. has a valid point. Creativity is not something one turns on and off
>>>>>>>like a lightswitch or a candle that one snuffs out at will. And it is not
>>>>>>>beholden to a fee extraction machine based upon planning and prepared
>>>>>>>thought. Do we really want to tell a Jazz musician at the end of his set
>>>>>>>"oh you had two bars of britney that's $100,000, three stanzas of
>>>>>>>Steppenwolf...depreciated lately that's $1000 fork over the check.." ,"but
>>>>>>>I didn't realize I did that", "too bad the sanctity of intellectual
>>>>>>>property must be preserved and you have transgressed...can't pay...well
>>>>>>>don't play"...what ASSCAP has created is nothing more than a accountancy
>>>>>>>system that attempts to enslave creativity. At the risk of offending any
>>>>>>>accountant reading this but CREATIVITY AND ACCOUNTANY ARE ANTIPODAL. THe
>>>>>>>only time creative accountancy takes place fraud is involved - witness
>>>>>>>Enron.
>>>>>>>
>>>>>>>On 1 Jun 2002 at 21:06, Ernest Miller wrote:
>>>>>>>
>>>>>>>Date sent:      	Sat, 01 Jun 2002 21:06:00 -0400
>>>>>>>From:           	Ernest Miller <ernest.miller@aya.yale.edu>
>>>>>>>To:             	dvd-discuss@eon.law.harvard.edu
>>>>>>>Subject:        	Re: [dvd-discuss] Rhapsody in Blue and the death of Jazz
>>>>>>>Send reply to:  	dvd-discuss@eon.law.harvard.edu
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>>Not true.  There are plenty of versions.  There is a mechanical license
>>>>>>>>for songs.  Anyone can record one ... you just have to pay the heirs a
>>>>>>>>legally set fee.  If I want to do a cover of the latest from Britney
>>>>>>>>Spears, I could ... so long as I paid the fee.  Britney couldn't stop me.
>>>>>>>>
>>>>>>>>D. C. Sessions wrote:
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>>It's been observed that (at least according to the traditional
>>>>>>>>>forms) Jazz -- _the_ American musical form -- is dead.  It died,
>>>>>>>>>they tell us, of starvation. Jazz is at heart an improvisational
>>>>>>>>>derivative of popular music and for the last few generations
>>>>>>>>>there hasn't been any popular music available for improvisation.
>>>>>>>>>
>>>>>>>>>What killed Jazz?  Why, for instance, aren't there any variations
>>>>>>>>>on the theme of /Rhapsody/ /in/ /Blue/, the great Gershwin tune?
>>>>>>>>>Why hasn't someone worked variations on /Appalacian/ /Spring/?
>>>>>>>>>
>>>>>>>>>Well, in short because the heirs and assigns of Gershwin and
>>>>>>>>>Copland won't allow it.
>>>>>>>>>
>>>>>>>>>Amazing, isn't it, that composers today still can't build on
>>>>>>>>>classic works composed before their grandparents were born?
>>>>>>>>>
>>>>>>>>>Would someone *please* explain how this promotes science and
>>>>>>>>>the useful arts?
>>>>>>>>>
>>>>>>>>
>>>
>>
>>
> 
>