Category: Law & Policy

Podcast – IP & Social Justice with Professor Lateef Mtima

In this episode, I talk with Professor Mtima about how and why he and his colleagues approach IP from a social justice perspective.  “Lateef Mtima is a Professor of Law at the Howard University School of Law. After graduating with honors from Amherst College, Professor Mtima received his J.D. degree from Harvard Law School, where he was the co-founder and later editor-in-chief of the Harvard BlackLetter Journal.” Visit Professor Mtima’s website.

Show Contents

  • 1:07 – Defining social justice in an IP context.
  • 7:54 – Distinguishing between social justice and predatory practice
  • 11:45 – How the conversation about race factors into the IPSJ discussion.
  • 18:17 – The “Blurred Lines” case.
  • 24:30 –  Was copyright a highly democratic statement at U.S. founding?
  • 30:56 – But patent was  a different story.
  • 34:05 – Cotton gin and further patent discussion.
  • 36:46 – How can IPSJ be made accessible to laymen?
  • 43:30 – Anti IP and the corporatist message.
  • 47:49 – On trademarking offensive terms.
  • 58:35 – Are contemporary politics, policy, caselaw moving toward IPSJ?
  • 01:04:58 – Anti IP and progressive views.
  • 01:10:28 – Idea/Expression dichotomy discussion.

Decision in Photographer Jim Olive’s Case Confirms What We Already Knew

“Congress, however, barely considered the availability of state remedies for patent infringement and hence whether the States’ conduct might have amounted to a constitutional violation under the Fourteenth Amendment. It did hear a limited amount of testimony to the effect that the remedies available in some States were uncertain.

The primary point made by these witnesses, however, was not that state remedies were constitutionally inadequate, but rather that they were less convenient than federal remedies and might undermine the uniformity of patent law.”

– Opinion of the Court, Florida Prepaid v. College Savings Bank, Rehnquist J., June 23, 1999. –

Twenty-two years, almost to the day, after the opinion cited above was delivered by the U.S. Supreme Court, professional photographer Jim Olive was assured by the Texas Supreme Court that state remedies for intellectual property infringement are not merely “less convenient than federal remedies,” they are non-existent. Knowing that the University of Houston was immune to a claim of copyright infringement, Olive filed suit in state court arguing that the college’s unlicensed use of his aerial skyline photograph in 2012 was an illegal taking under both the U.S. and Texas State Constitutions.

As explained in detail in my Allen v. Cooper Revisited series of posts, the status quo holds that any state actor may infringe intellectual property with impunity due to the Supreme Court’s findings that the Eleventh Amendment bars suit of state entities in federal court. In the early 1990s, Congress passed three laws explicitly stating its intent to abrogate Eleventh Amendment immunity in suits for infringements of trademark, patent, and copyright; but by the end of that decade, those laws were gutted by the Supreme Court asserting the primacy of sovereign immunity. Coincidentally, the University of Houston happened to be the defendant in the 2000 case (Chavez) that finally affirmed the death of the copyright bill in that trio, the Copyright Remedy Clarification Act (CRCA).

What the Rehnquist quote cited above refers to is the fact that when Congress held hearings in the drafting of those IP remedy laws, the question was raised as to whether claimants might have adequate recourse under state law to remedy IP infringements. If so, it was argued by some parties that the grounds for abrogation of Eleventh Amendment immunity could be questionable as a constitutional matter. Among the remedies contemplated were takings claims, exactly as Olive has pursued under Section 5 of the Fourteenth Amendment, which bars both state and federal taking or destruction of property without due process. Further, the Texas State constitution contains an even more explicit takings clause.

The Problem with the Outcome in Olive’s Case

In a nutshell, the Texas Supreme Court decided that copyrights are not property—at least not in the sense that they can be subject to a takings claim the way real property or personal property can be. To consider IP theft a taking, as the court stated, relies upon holistically depriving the owner of his rights in the property at issue. Simply put, if the state appropriates your house without due process, it has taken both your physical property and all your rights associated with that property and has entirely deprived you of your ownership under the doctrine of takings.

But because the infringement of Olive’s photograph does not exhaustively deprive him of his copyrights in the image (e. g. the right to license to other parties), the Texas court held that copyrights are not properly a subject of his claim. As Kevin Madigan wrote in his excellent breakdown of this case for Copyright Alliance, “Unfortunately, the Texas Supreme Court confirmed that takings claims are bound to fail if a copyright owner retains any portion, no matter how small, of their bundle of rights. It’s difficult to imagine a scenario in which an instance of infringement would strip a copyright owner of all conceivable rights in a work, and therefore it would be impossible for a takings claim to succeed.”

The Rehnquist opinion in 1999 was naïve in kicking the questions of state remedies and due process down the road to see what happens. Moreover, as Justice Stevens articulated in his detailed dissent in the catalytic case (Seminole Tribe v. Florida) in this narrative, the Supreme Court probably got the Eleventh Amendment wrong. Stevens wrote, “There is a special irony in the fact that the error committed in the Chisolm majority [the case that precipitated the Eleventh Amendment] was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today.”

Certainly, it is hard to imagine that Congress’s intent in 1795 was to pass an amendment that would so thoroughly curtail its own power to write enforceable laws under Article I. Meanwhile, the Texas Supreme Court decision makes sense inasmuch as the existence of the IP clause in Article I implies that Section 5 of the Fourteenth Amendment refers to other forms of property.

Just as it is clearly a dubious venture to assert a copyright complaint in the form of a takings claim, it is a dubious proposal to assume that either the Framers or any Congress close to the founding imagined that it would be necessary to appeal to a future amendment in order to enforce a right explicitly established in Article I. To say nothing of the fact that the IP clause contains the only explicit declaration of a citizen’s right in the main body of the Constitution.

As Madigan argues in his post, the one silver lining in Jim Olive’s defeat in the Texas court is that it clearly proves that state remedies for IP infringement by state actors do not exist. Congress must, therefore, once again seek to abrogate immunity in these instances. No argument of justice can reasonably be made to the contrary.

Photo by: C5Media

Has the Moment Finally Arrived for Fairness to Music Performers?

Unlike the rest of the developed world, American radio broadcasters are unique in that they pay nothing in performers’ royalties when they play music on their stations. Although this has been true since radio began in the U.S., many Americans are surprised to learn that this is the case and, according to polling, believe it’s unfair. That’s because it is unfair.

Songwriters receive royalties for terrestrial radio play but not recording artists and their labels, which also excludes producers, engineers, and studio musicians. Almost since the day the National Association of Broadcasters (NAB) was formed in 1922, the station owners have successfully lobbied against a public performance right in sound recordings via broadcast by arguing that the promotional value radio play provides to the recording industry overwhelms the rationale for paying to license the music.

“But that was never a legitimate excuse,” said Congressman Ted Deutch in front of the Capitol yesterday afternoon when he introduced the American Music Fairness Act, co-sponsored by Congressman Darrell Issa. “The broadcasters have become experts in muddying the waters,” Deutch continued as a group of musicians in the background, including Dionne Warwick, Sam Moore, Ken Casey of the Dropkick Murphys, and Blake Morgan, all nodded in recognition that this has been a decades-long fight for basic fairness. As Rep. Issa noted in response to one reporter’s question, Congress will not be negotiating the terms to establish equity with the major broadcasters—this will be done under the auspices of the Copyright Office—but he emphasized that the longstanding rule of “not one penny” is a bad faith arrangement that needs to be made right.

Six major media conglomerates own more than 2,000 terrestrial radio stations in the United States, and the revenues from radio advertising totals in the hundreds of billions of dollars. And nobody is confused about the fact that without music to play, most of those stations would not have the audiences needed to attract those advertisers. If American radio stations ever did provide enough promotional value to justify not paying for public performances of the recordings—and the relationship between radio and record sales is both questionable and scattershot at best—that argument is even weaker in the 21st century market, when the prospect of selling copies or downloads is less likely than in prior decades.

At this point, while the pundits and the gurus keep spinning theories about “music discovery” (i.e. exposure) as an excuse to avoid paying creative people in many fields, the only clear observation we can make in this instance is that terrestrial radio is just one of several means by which we still listen to music. And the music is the ONLY reason we hear the advertisements that generate all the money in that industry. Surely, there can be no rationale for allowing entities like iHeartRadio, Cumulus, et al to keep paying nothing to the performers on whom they so profoundly depend.

Moreover, Rep. Issa explained that not only does America’s uniqueness in this regard deny royalties to both American and foreign artists in the American radio market, but it also denies royalties from foreign radio stations to American artists due to reciprocity. Because our radio stations don’t pay their artists, their radio stations don’t pay ours, which is rather extraordinary when we consider the amount of music the United States exports worldwide.

The AMFA is narrowly tailored to avoid imposing undue burdens on small, independent, and public radio stations through fixed, statutory rates for entities earning less than $1.5 million. For instance, a station earning $100,000 pays $10/year. Upon adoption of the bill, the larger entities will negotiate royalty arrangements with labels and other artist-representing stakeholders. But probably not without a fight by the broadcasters over passage of the bill itself.

The broadcasters have enjoyed a free ride for a very long time, and perhaps they will once again throw more money than the average musician ever earns at an effort to maintain the status quo. But on the other hand, maybe they’ll see the writing on the wall this time. Because at least when it comes to artists’ rights, many Members of Congress seem to have more finely tuned their bullshit detectors in recent years. And one upside of the of the fact that the broadcasters have successfully squashed the performers’ rights for so many years, is that every argument they can present, has already been made hundreds of times.

… no one would argue with the fact that the promotion which records receive from broadcast exposure boosts record sales and attendance at performers’ concerts. This promotion is more than adequate compensation for the broadcast performance. The undeniable truth is that many recording companies and artists would be forced out of business overnight if broadcasters stopped playing their records over the air.

That was in a letter submitted on behalf of the North Carolina Broadcasters to the Copyright Office in 1978. And what little purchase on reality the argument had then has long since eroded as a foothold in the contemporary market. Time to play fair and give the musicians a little cut of the revenue their work generates. Because without the music, nearly all the radio stations would be forced out of business overnight.

Photo by hurricanehank