Copyright holders, like musicians, have a knack for riffing on ideas from the past.  Consider the many variations of the copyright infringement lawsuit.  Every year brings more examples of a rights-holder who hears some element of their song, no matter how brief, followed by the sound of an opening cash register.  Surely some lawsuits are aimed at scofflaws who just don't want to pay for the soundtrack to their infomercial. Thankfully, copyright law provides no shelter to those who use an entire song, unchanged, to sell .

But some variations on the infringement suit are more speculative, both legally and ethically. While the experiments of musicians are at the heart of musical evolution, the creative endeavours of copyright litigants may actually silence creativity.  In Jamie Boyle's new book, "," he devotes to how an infringement suit could have changed a genre, a hit, and a protest that were built by borrowing.  According to Boyle, Ray Charles' 1954 song "" was both a milestone in the birth of soul music and a clear infringement of a contemporaneous gospel tune. No surprise there: "I Got a Woman" and other early soul songs took their melody, structure, and even some lyrics from spirituals. Yet gospel artists who disliked this practice typically appealed to the borrower's sense of piety, not their fear of legal liability. Had gospel artists instead decided to sue their pop progeny, soul music's development would have been very different.

Kanye West engaged in a similar act of borrowing 50 years later.  His 2005 hit, "," is based on overt samples and reworked elements from "I Got a Woman."  West didn't have to worry about the legal consequences of his homage, however, because he paid for a license to use Charles' material. Without a license, West's hit would likely have sparked a lawsuit. Times had changed since Ray Charles started adapting gospel tracks, and licensing musical samples had grown into big business.

A lack of money (and perhaps time and inclination) led yet another borrower to eschew a license for  Charles' and West's work.  Just weeks after it was released, the Legendary K.O. retooled "Gold Digger" and its embedded musical precedents without permission.  But they were not selling Slankets.  They were responding to the plight of New Orleans residents in the wake of Hurricane Katrina.  After seeing Kanye West's live, unscripted that "George Bush doesn't care about black people," the Legendary K.O. recorded a by the same name.  Their lyrics were angry, political, and profane, and they struck a chord in an American public appalled by their government's response to disaster.  Millions of people listened to the song online and watched fan-made videos cobbled together out of (unlicensed) news footage. Boyle asserts that fears litigation kept the song off of main stream media, where it could have reached even more people. Actual lawsuits forced the authors of the videos to modify their work. Ironically, this third use is the one that was most impacted by the spectre of an infringement suit.

Boyle's secret history suggests inflection points where acts of cultural production were permitted, controlled, and frustrated by the perceived likelihood of an infringement suit.  Defensive approaches to using copyrighted work--i.e. license every use or leave it out, regardless of the fairness of that use--are a consequence of aggressive infringement lawsuits.  The frequency and character of these suits will, therefore, have an impact on how music develops.

A demonstrates just how speculative these claims have become.  The group Men at Work are best known for their 1983 pop hit "," with its buoyant melody and lyrics about Vegemite sammies.  It's an Australian anthem, appearing everywhere from the closing ceremonies of the 2000 Olympics in Sydney to Qantas Airlines' new television commercials.  But in 2007, the rights-holder of the 1934 children's song "Kookaburra Sits in the Old Gum Tree" became convinced that it had been infringed by "Down Under." He claims that the latter song's flute part reproduces two of "Kookaburra's" four bars of music, despite the fact that the key, harmony, structure, and rhythm are different.

If this kind of glancing reference to copyrighted work is enough to incur liability, what will happen to music?  Professor Jill McKeough, dean of law at the University of Technology, Sydney and an expert in intellectual property says, "It does create uncertainty about how people can reference other songs … It means you can never have a thought or write a song without looking over your shoulder. Musicians would have to start retro-fitting their songs with some kind of analysis."

Another Australian musician, Martin Armiger, asked, "What purpose is served by insisting on the rights of a dead composer against quotation, one who in her lifetime wasn't at all protective of her copyrights, who gave her intellectual assets away for no charge and showed no inclination to profit materially from her inventions?"

It's easy to see why musicians would be leery of this practice.  In some countries, copyright lasts for over a hundred years.  Is every musician supposed to listen to a century of music, searching for similarities--however tenuous--before they release a song?  Music lovers should agree that this riff on the infringement lawsuit doesn't sound good.

The post Gospel, Gold Diggers, and Gum Trees: How Sampling Litigation Changes the Tune appeared first on IPOsgoode.

It turns out that many people who bought Spore couldn't actually play it. The game was secured with an and thousands of customers were left with a useless lump of code. As a result, Spore soon clinched a dubious record: .

This is just one example of digital rights management (DRM) gone awry, and it raises familiar questions about how and why we use the law to protect digital locks. Until recently, the global policy consensus was that DRM, when applied to copyrighted content, ought to enjoy a presumption of validity. In this model, picking a digital lock for any reason--even on content you've paid for--is a violation of copyright law. The most famous articulation of this position is in of the (DMCA), the American ratification of two international agreements called the . This approach to DRM has sparked furious because it gives copyright holders the unilateral ability to expand the scope of their rights: even if the legislature has been silent on a use of copyrighted material, the copyright holder gains effective legal control if she can protect it with a digital lock.

Some evidence suggests that this approach to DRM is falling out of favour. France rejecting legal protection for DRM in 2006. Steve Jobs, the Apple Computers CEO whose popular iTunes Music Store sells songs wrapped in DRM, has publicly on entertainment companies to abandon the technology. Even the American official who architected the worldwide spread of DRM in the WIPO treaties that those "policies didn't work out very well" and "have not been successful."

Canada has thus far declined to grant legal protection to DRM, and it has even pioneered novel approaches to the legal treatment of digital locks. In , a 2005 Liberal proposal to ratify the WIPO Internet Treaties, circumventing a digital lock would have been unlawful only if it was linked to an underlying infringement. Unfortunately, that link was severed in , the Conservative government's failed successor to C-60.

With no live copyright legislation and an election on the horizon, we should think hard about whether Canada should follow America in the blanket protection of digital locks. If the Spore debacle tells us anything, it's that our legal treatment of digital locks needs to evolve with our understanding of how they work, how they fail, and whose interests they serve.

The post The Evolving Treatment of Digital Locks appeared first on IPOsgoode.

That huge surge in traffic pushed Scrabulous above the radar, and the makers of Scrabble took notice. And they told their lawyers. :

In mid-January, Pawtucket, Rhode Island-based Hasbro, which holds the Scrabble trademark in the U.S. and Canada, asked Facebook to remove Scrabulous because of copyright infringement. "We have spent many years building the Scrabble brand, and what Scrabulous is doing is piracy," reads an official Hasbro statement. "We ... hope to find an amicable solution. If we cannot come to one quickly, we will be forced to close down the illegal online game." (Emphasis added)

As you can see above, coverage of the controversy has been somewhat muddled on the law. Is this a copyright claim, a trademark claim, or both? Or does it relate to a patent on electronic implementations of the game? Without a copy of the communications between Hasbro and Facebook, we'll have to speculate.

If it's a copyright claim, Hasbro must show infringement--e.g. unauthorized reproduction of copyrighted material. But what's copyrightable in a board game? Copyright expert had :

Copyright in games extends only to the graphic elements and textual explanations, not to the way the game is played, so it is possible to make some changes and avoid infringement.”

In other words, copyright attaches to elements of a board game--the manual, illustrations, etc.--but not its play or scoring mechanics. According to my hours spent playing Scrabulous against strangers research, the letters and coloured squares look similar to their real-world equivalents, though enough differences exist that it's unclear whether a court would find them substantially similar. For example, the multiplier squares (i.e. "triple word score") have had the labels removed, though the colours remain the same. There have also been "look and feel" cases in the U.S., where the makers of video games and operating systems (Apple ) claim copyright in the whole user experience of a given product instead of its individual elements. However, that doctrine remains weak and undeveloped in the U.S.

On the other hand, Hasbro might pursue a trademark claim and try to show that Scrabulous is confusingly similar to the Scrabble mark. Specifically, it would have to show that the public was confused or deceived into thinking that Scrabulous is associated with or approved by the makers of Scrabble.

If Hasbro won either of those claims--and it's not totally clear that they would--the biggest difference between a copyright and trademark action would appear when determining damages. The most common remedy for trademark violation is an injunction on further use of the offending mark. Profits from use of the mark, actual damages to the legitimate mark holder, and punitive damages can also be awarded. But at the end of the day, Hasbro would have to meet a fairly high evidentiary burden in order to extract large sums of cash from the makers of Scrabulous. Copyright, on the other hand, carries a statutorily defined range for damages for each infringement. Since over 600,000 people play Scrabulous daily, making numerous cached and ephemeral copies of potentially protected elements, a successful copyright claim could bankrupt the United States government, let alone two brothers in Kolkata.

Which brings us to one conclusion: nobody wants to go to court over this. The makers of Scrabulous net about $25,000 per month. Hasbro, on the other hand, would have to deal with negative publicity and more than 46,000 people who have already joined a "Save Scrabulous" Facebook group. These realities have fueled speculation that Hasbro's threats are just meant to force the makers of Scrabulous to sell their business to Electronic Arts, the world’s largest video game publisher and holder of the rights to exploit the Scrabble brand electronically.

That outcome, while perhaps being the tidiest for all parties, raises a fascinating question. U.S. intellectual property laws are supposed to encourage creativity and reward innovation, but who are the innovators here? Hasbro, which simply purchased the rights to Scrabble, or the brothers who took a familiar boardgame and turned it into an online phenomenon beloved by millions of people? Can you spell "ironic"?

The post All Mixed Up: Scrabulous and the Realpolitik of IP appeared first on IPOsgoode.