Thursday, January 18, 2007

A legal mash-up?

A story in today’s New York Times (here) tells the story of the arrest of DJ Drama, creator of the “Gangsta Grillz” HipHop mix-up compilations. The story is reminiscent of the bust of Mondo Kim’s in the East Village, Manhattan. This bust, led by RIAA, was under the Georgia R.I.C.O statute, according to the Times. Brad Buckles of RIAA is quoted in the story as saying “A sound recording is either copyrighted or not.”

Mr. Buckles’ remark is true enough, but does not necessarily end the matter. First, why isn’t the state proceeding preempted by the Copyright Act? Presumably, the base conduct complained of was the reproduction and distribution of copyrighted works. No state can make such actions a crime. Perhaps the indictment (and DJ Drama was charged with a felony offense according to the Times) was for the operation of an organization engaged in criminal activity and not for the criminal activity itself, but this may be a bit too glib.

And then there is the question of the performing artists’ own participation – and therefore authorization – of the compilations. According to the Times story “most of DJ Drama’s mixtapes begin with enthusiastic endorsements from the artists themselves.” Have the artists already transferred all rights such that their permission is ineffective?

Finally, there is the “biting the hand that feeds you issue”; as the Times observes: “It also seems clear that mixtapes can actually bolster an artists’s sales.” The RIAA apparently thinks otherwise, and its data presumably comes directly from the labels. Moreover, the labels are interested in their relationship with their artists. It would be instructive to hear the labels’ side of the issue, even by an anonymous posting.

14 comments:

K. Matthew Dames said...

Bill:

Many forms of urban and electronic music, but especially hip hop, have promoted themselves through the mixtape. For years, I sold my own mixtapes in major cities along the East Coast. I never had a problem with any of the artists. In fact, I often had artists buy my mixtapes, then send me more material in the hope that they could introduce more of their music to particular audiences.

The mixtape industry does not operate on a wink and a nod; instead, artists freely and openly participate. The mixtape or DVD (at least in hip hop) has become a new performance venue, one that allows artists to perform routines that they otherwise could not perform. It is the modern, digital equivalent of the jook joint.

And there is virtually no way any DJ would be able to clear all the needed rights, much less clear them and break even.

And a state-based RICO claim? I mean, really. Forget the interesting preemption issue: don't those guys have better things to do?

Anonymous said...

I'm by no means a copyright-hippie, but I struggle when I read about criminal enforcement.

As k. matthews noted, our copyright laws are designed for selective-enforcement, or leakage, or 'law breaking'; whatever word suits your fancy. We extend a broad grant of rights and then rely on authors to decide how to selective police the usage of their works.

Which is fine when you are talking about real damages, or even statutory damages. But criminal charges?

This just seems inconsistent with how the Copyright Act functions.

Aurich said...

I would love to see some figures that show any support for mixtapes *hurting* record sales. It is widely acknowledged that the opposite is true, which is why artists so freely participate, they have a lot to gain financially. Take an industry darling (in terms of sales) like 50 Cent. His entire career and street credibility were built upon mixtape appearances.

mwbower said...

I know the original post was directed toward the preemption issue, which is very worthy of discuss, but I have to join the rest of the chorus in questioning the circumstances in general.

More to the point, I've read other accounts of this story that state that the RIAA used a SWAT team. A SWAT TEAM! TO ENFORCE A COPYRIGHT! This is white-collar crime, folks, and pretty banal at that. Is this really a justifiable use of taxpayers dollars?

Bill Stepp said...

Recently I heard a great mixtape at Starbucks (the one across the block from the Mondo Kim's store on the corner of St. Mark's and Third Ave.), then asked the Barista the name of the first song, which was "The Light." When I got home I bought "Into the Blue Again" by The Album Leaf. (If you like Moby and the Icelandic group Mum, you'd like The Album Leaf.)
I then lent it to my neighbor the lawyer, who liked it so much he bought several of their cds.

Btw, normally I only read the NY Times online, but I wanted to clip that article for my files, so I bought a copy of the NY Times on the newsstand. Here are several examples of how free copies lead to sales.

My neighbor has also come out against copyright. I lent him the special issue on IP of the Harvard Law & Public Policy journal (it's 1989 or 1990), and the fall 2001 issue of the J. of Libertarian Studies (it has N. Stephan Kinsella's article "Against Intellectual Property").
Next to give him: Steal This Idea by Michael Perelman.

Anonymous said...

Here is the record company view. A "mix tape" is simply a compilation CD made up of some original, previously unpublished tracks and some commercially available tracks and, more frequently than not, the new content is a voice track mixed on top of a pre-existing track taken from a commercial release. "Mix Tapes" aren't professional audition tapes. The DJ who compiles a mix tape replicates thousands of them and sells them - - for a profit. generally no royalties are paid to anyone at all including, by the way, publishers controlling the underlying compositions. mechanical royalty payments dont occur.

The mix tape differs from a counterfiet only in the sense that a new compilation work is made. The commercial impact is slightly different in that a sale isn't diverted from a commercially released compilation. Instead, a sale is generated without any compensation to the owner of the content that is being sold. Not much difference. None object to smashing down the doors of true counterfeiters, putting them in jail, and moving on with legitimate business. There is no objection to the criminal incarceration of those who counterfeit jewels, handbags or perfumes. Music and films are no different.

It is entirely irrelevant that mix tapes *also* promote artists and songs. Concerts, club appearances and the like do the same. Does that mean you should gain entry with a fake ticket or demand free drinks at the bar?

The criminal state claims are on the basis of the failure of these mix tape CD manufacturers to list their real names and addresses as distributors on the labels or packaging.

William Patry said...

Dear Anonymous, thanks so much.

AstroNerdBoy said...

"The RIAA apparently thinks otherwise, and its data presumably comes directly from the labels."

Data can be manipulated to say anything you want. All you do is start with a point of view and then only take that which would seem to support what you say. So-called "lost sales" is bogus anyway because it assumes would be better if "this" or "that" weren't taking place (in this case, mix tapes).

Gah! Ultimately, I blame our idiot law-makers who don't have a clue about the laws they construct, only the money they are given by folks like the RIAA. Our copyright laws are a right mess. I'm amazed that we don't have to pay the RIAA for merely discussing music (as in this blog entry). *_*

Richard said...

Bill,

I am a construction lawyer dealing with a copyright infringement case for an architect client. Your blog is so informative, well written and well presented. Thank you for your effort.

Richard (rstorrs@storrslaw.com)

Dan said...

Legally speaking, the RIAA is probably (at least mostly) correct in going against the mix-tape makers (though the use of state instead of federal law may be questionable). Morally speaking, though, there seems to be something wrong with the fact that the record labels are effectively going against their own artists on this. The people who actually make the music don't seem to generally mind this form of "piracy", just the corporate suits who the artists have (foolishly?) signed away their rights to.

Beneath the Carolina Moon said...

The RIAA is interested in only one thing and it's not protecting the artists as they claim. It's protecting their iron fisted control over the music distribution system of the world. They aren't worried about missing sales due to mixes like this or a kid downloading music..they are worried that the kid downloading music and independent artist will connect and then the kid won't buy their Britney Spears trailer trash music. They loose control over what choices people have. When you have my choices and none...I make all the profits..when there are other choices...I may not do so good, and have to work hard to compete and take risks...things the RIAA does not like. Do you think the artists make up the RIAA? No! Sony and BMG and big recording companies make up the RIAA. Wake up world!

analoghole said...

For some reason, my previous comment never posted (not sure why -- I hope it's not that it was deemed unworthy by Bill himself). I won't try again, but the gist was that even though the warrants in the DJ Drama raid list state RICO offenses, I think the underlying basis for the DJ Drama prosecution is the same section of Georgia law as was at issue in the Briggs case, which was the subject of the Patry post "Georgia on My Mind" in December," (http://williampatry.blogspot.com/2006/12/georgia-on-my-mind.html). That statute is Ga. Code 16-8-60, and it's a RICO predicate under Georgia law.

Subsection (b) of that statute is a "true names" law that prohibits distribution of music CDs, etc. without labels identifying the distributor or the producer of the work. A similar California law was upheld at issue in Anderson v. Nidorf (9th Cir. 1994). Both the Briggs and Anderson courts found the labeling requirement a sufficient "extra element," beyond what federal copyright law requires, to overcome the defendants' preemption arguments.

But it seems unlikely that DJ Drama's is a "true names" case. DJs are generally all too happy to identify who they are and who produced the tracks in their compilations. Rather, the likely basis for the DJ Drama case will be 16-8-60(a), which sure looks like a straight-up criminal copyright law. In fact, it goes beyond federal criminal copyright laws and makes all unauthorized distribution a crime.

It's safe to assume that preemption will be among those defenses DJ Drama will raise, and if so, it will be interesting to see if Georgia courts handle it any differently than they did Briggs last November.

William Patry said...

Dear Analoghole, sorry for the trouble posting your comment. I had a huge influx of spam, and after consulting with the Blogger engineers, I was told that right now comment moderation is the only defense, so I instituted it with great reluctance. I never moderate for content, only spam, but I think when I do it from my Blackberry, the "publish" command doesn't always go through due to Blackberry network problems.

analoghole said...

Well I didn't actually think the comments were being singled out for omission -- and figured it was a Blogger glitch (eg, an automated filter that didn't like special characters or HTML). Even with your book now released, it's hard to believe you have time to manually review comments. There's gotta be a better way. (Wordpress's akismet filter, maybe?)