June 5, 2004  ·  Lessig

More from Jerry Lobdill, who writes about his own wonderful experiences with the existing copyright system:

I am a small businessman. Among other things I am interested in publishing a few things. I have multiple interests, so the subjects I’m interested in vary. One of my interests is the history of the US, especially the era of the wild west.

I have discovered an out of print book that is extremely important to students of the wild west. It is extremely rare and was published only in first edition in 1928. This book was renewed in the name only of the author in 1955, and under present law will not enter public domain until 2022. (According to my research no published works will enter the public domain until 2019.) However, the author died in 1963. He had no children, and his wife died in 1976. Her will does not mention any copyrights. I am obtaining a copy of the will of the author but have not seen it yet. I have had the US Copyright Office do a paid search, and all they have on record is that the author renewed the copyright in 1955. There is no record of transfer of ownership on file.

I inquired of the original publisher if they knew anything about the author’s copyright and was first told that they knew nothing about the book of interest. Then, they said they thought they owned the copyright but were investigating to be certain. Then I was told that they definitely owned the copyright. When I asked for a xerox of the copyright transfer document that law prescribes, transferring the renewed copyright to them, they refused to produce it, saying that their policy is not to provide such information to “private parties”. When I explained that I was thinking of republishing the book and that the US Copyright Office records show that the renewal belonged to the author only, and that I needed proof of their claim before negotiating for publishing rights, I was told that I was too small a publisher to qualify.

So…here I sit, with an extensive file that contains no transfer document. The US Copyright Office has no record of a transfer of ownership, and I feel that there is a strong possibility that the publisher is lying about ownership. If so it would not be unusual in today’s environment. They probably hoped that I’d negotiate with them without proof.

As a result of this situation I have spent money and time and have only a written assertion of ownership without proof. Were it not for this unsupported claim I would know that there was a transfer or that there is no one alive who is likely to challenge my republication of the book.

The law is flawed in my opinion if it requires a written transfer of ownership (like real property) but does not require a claimant to produce the proof of ownership except in the context of a copyright infringement suit.

If you agree, what can be done to get the law repaired? The way it is now it invites and rewards false claims of this sort to the detriment of reasonable use of works that are effectively public domain.

(cf. “It’s simple.)

June 5, 2004  ·  Lessig

Jerry Lobdill writes with this interesting story about a remix culture now regulated:

This is an example of the kind of art flamenco is–or was.�And I speak particularly about the guitar here. The roots of flamenco are lost in the mists of time. They go back at least into the late 1700s, but probably farther. At this time there are over 40 distinct forms which are each characterized by a specific�repetitive rhythmic pattern termed “compas”, a specified musical mode�(major, minor, or phrygian), and�certain signature resolution phrases or other unique musical features.�

I have played flamenco guitar for 47 years. When I was learning to play, the current versions�of the forms could be traced back to a few virtuosos who came on the scene as early as 1905 or thereabouts.�Every form is played as a series of sections that are distinct in melody and are sandwiched between more or less standard rhythmic sections characteristic of the form. The melodic sections are called “falsetas”. The sections are played in whatever order a player chooses and players spend spare time trying to invent new falsetas or modifying old ones. Most players know the genealogy of their falsetas to some extent, but anything that is older than a couple of generations is usually of unknown origin.�

Lore has it that great flamenco guitarists invent falsetas on the fly during performance. This is nonsense. But that’s another story.�Hardly any guitarist can read music and/or uses any kind of notation to commit falsetas to paper.

In the cante (song) the verses (letras) and the melodies�are generally very old though most are associated with the name of the originator.�

Through the 1950s it was expected that players would play mostly traditional things with minor additional innovations. The falsetas of a particular player did not usually evolve from one recording to the next, and, indeed, players had favorite falsetas�that they played for years.

But as soon as recording industry moguls got involved all that changed. Nowadays they are claiming copyright on everything that is recorded,�even the traditional�portions that have been played since antiquity. Guitarists such as Paco de Lucia are pushed and prodded to innovate, and he has said�publicly that the creation of new material is the most difficult part of what he does in this modern environment. Yet even his innovations (when he plays flamenco instead of the bastardized watered down stuff he mostly plays these days) contain traditional resolution phrases and rhythmic sections�that define the forms and are ancient anonymous creations.

Spanish copyright has gone crazy locking up the public domain along with the new in recent years.

I have reams of manuscript transcripts of fabulous flamenco guitar music that will never be published because of the abuse and tyranny�of copyright law. Like many non-Spanish�flamenco guitar players, I play what�I consider to be the best–just like Spaniards did before commercialization of the art. It’s sad that all this will never be published for the enjoyment of the world.�

(cf. “It’s simple.”)

June 5, 2004  ·  Lessig

Michael Tucker sent this link to a film he’s making about the war in Iraq. “It includes two video clips that I think your readers will appreciate, no matter what their views on the war.” Favorite quote from a soldier: “For y’all this is just a show, but we live in this movie.”

And I can’t believe there isn’t any conservative remixes out there. Really?