Uh, Bullshit

Hilary Rosen is guest-blogging for our esteemed chairman , and while it makes perfect sense in theory — CC is not about tearing down copyright, but about building a better system within it’s confines — I call bullshit.

Ms. Rosen posits:

I love the Warhol Campbell Soup example. I wonder if Campbell’s would sue him today. doubt it. in fact that is what is always so fascinating. the amount of people who face legal consequences for things like samples or parodies is so miniscule compared to the amount of their use. Music sample lawsuits, for example are really only done by successful artists against successful artists because it just isn’t worth it to pursue. Every once in awhile “artistic integrity” comes into play, but rarely. First, I wonder why she thinks Campbell’s Soup wouldn’t sue Warhol today, especially if he chose to distribute his work in a digital medium (something that strikes me as plausible, although I’ll admit that I’m just pissing in the wind here). It seems to me like the atmosphere has shifted to a more litigous one in all areas, not just copyright. But that’s not the point — neither Ms. Rosen nor myself can speak for Campbell’s, of course. The point is with respect to the link she tries to draw between Warhol’s use of the Campbell’s Soup can, parody and sampling. And here’s where I call bullshit: if the lawsuits are so few, the “chillling effect” on creativity so minimal, and the damage to artists so slight, why not codify the right of artists to reuse, remix and sample in copyright law? What not provide real statutory protection for parody and sampling so that judges don’t have to decide how much a sample is worth, and possibly decide incorrectly.

And we were hung up. Hung up on the very issue you raised. What would happen when legitimate fair use needs arose and the required content wasn’t available in upprotected formats? While we knew it wasn’t a “dreamers” issue and that technology was moving rapidly enough that protected content could be a reality quite soon, it wasn’t yet at the time. And several of us, including most importantly by that time, the Committee Chairman who had heretofore been opposed to the Bill, wanted to get it done. So, I pulled out a long used legislative tactic and suggested we put a “study” in the statute. Oh, right, I forgot — the Copyright Office and Commerce Department studied it, and found out its not a real issue . Thanks for that legislative gem, Hil — you’re a doll.

PS: Tell ‘Liz to get you a keyboard with a shift-key that works — you work hard for the money.