Monday, June 29, 2009

Tenenbaum: let me add expert late; ethnomusicologist just focused on own relevance

Joel Tenenbaum has moved for leave to permit the addition of Brandeis University enthnomusicologist Wayne Marshall as a defense expert, three months after the March 30 deadline for expert disclosures. The reason for the tardiness? Marshall just realized his expertise might be relevant. You got that right:
The reason for the lateness of the filing of this disclosure is that only recently did Dr. Marshall focus on how his expertise would be relevant to one judging the fairness of Joel’s use in relation to the copyright holder.
Silly me; I had always thought it was the parties' responsibility to identify relevant experts, and not the other way around.

As for the substance of Marshall's report, I'll just re-post what I wrote in my previous update: Marshall's report more than confirms my suspicion that his opinions, while they may be perfectly appropriate for academic discussions of ethnomusicology, are simply irrelevant to this case. For example, here's Marshall (who is Nesson's son-in-law) purporting to offer an opinion on the issue of transformativeness and fair use:
Listening is an active process, a rich domain of interpretation and imagination, manifesting differently – according to personal idiosyncrasies and cultural mores alike – for each person and in each moment. As anthropologist Steven Feld explains in the oft cited “Communication, Music, and Speech about Music” (Feld 1984), the listening process is, when one considers all that is potentially involved, an enormously complex phenomenon very much centered on the particular listener in question. According to Feld, listening as an act of “musical consumption” involves, among other things: the dialectics of the musical object itself (text-performance, mental-material, formal-expressive, etc.), the various interpretive moves applied by the listener (locational, categorical, associational, reflective, evaluative), and the contextual frames available at any moment (expressive ideology, identity, coherence).

All of this activity is inextricably social in character, regardless of the musical object in question. As Feld notes, “We attend to changes, developments, repetitions--form in general-- but we always attend to form in terms of familiarity or strangeness, features which are socially constituted through experiences of sounds as structures rooted in our listening histories” (85).

While grounded in communication studies and musical semiotics in Feld’s study, such an interpretation – centering the socially situated hearing subject rather than the musical object (whether live performance or mp3) – is also consistent with a great deal of literary and media theory from the past thirty years, from Roland Barthes’s infamous 1977 “Death of the Author” to Henry Jenkins’s contemporary theories about spreadability and value.
I'm the first to admit that I managed to graduate from college and law school without reading a word of Feld, Barthes, or Jenkins. But I've read more than enough fair use opinions to be confident that judges do not consider their views on "musical semiotics" or "literary and media theory" to have the slightest relevance to fair use analysis. If anyone can point me to a single fair use opinion in which a court has relied on the views of an ethnomusicologist, literary theorist, or musical semiotician, I'd be happy to reevaluate my opinion.

UPDATE: You know you're in trouble if you're fighting the labels and you've lost even the commenters at Recording Industry vs. The People. By the way, Ray Beckerman's comment asserting that "the Court has expressly ruled that it will not rule summarily on either fair use or due process, and will decide those only upon a full factual record of a trial of the merits" (emphasis added) is false. Judge Gertner has not ruled that there will be a trial on fair use, "expressly" or otherwise. Rather, she merely said she would not resolve the fair use issue "through the futility analysis applied under Fed.R.Civ.P. 12(b)(6)." Indeed, two of the cases Judge Gertner cites for this proposition, BMG Music v. Gonzalez and UMG Recordings v., Inc., are copyright cases where the court rejected the fair use defense on summary judgment. (The third, Gluck Corp. v. Rothenhaus, is a trademark case where the court declined to rule definitively on affirmative defenses at the motion to dismiss and preliminary injunction stage.) And, as I've noted, two years ago Judge Gertner herself granted summary judgment in favor of a copyright plaintiff while rejecting the defendant's fair use defense. Fitzgerald v. CBS Broad., Inc., 491 F. Supp. 2d 177 (D. Mass. 2007) (inclusion of photo in news broadcast was not fair use). I continue to doubt Tenenbaum's fair use defense will survive a summary judgment motion.


  1. should I apologize for being better read than you?

  2. No need to apologize. I'll stipulate that you've read more enthnomusicology and cultural criticism, if you'll agree that I've read more fair use cases.

    And to be clear: nothing that I've written should be taken as criticism of your work *as an ethnomusicologist*. I simply believe your expertise and opinions in that field are not relevant to this case, and your report makes that abundantly clear.

  3. The fact that judges have hitherto not used evidence from ethnomusicologists (which I know is not entirely true because ethnomusicologists were used as expert witnesses in the Greensleeves case, which is I think unpublished, although I'm not sure how much fair use arguments actually made it in) is not a sign they shouldn't.

    It might be a sign that they SHOULD rely more on such evidence. Three reasons come immediately to mind

    1) given the number of people, including much of the public at large, who are unhappy with copyright law, perhaps new kinds of evidence would take account of their interests

    2) given the structural inequalities of who can afford getting to court (where the big copyright holders also have significant repeat-player advantages), if we can grant that ethnomusicologists study music as it matters to everday people, their testimony might better represent the side of the story that can't afford to go to ourt, and

    3) since copyright law in general, and fair use analysis in particular, relies on a broader definition of interests than the private parties involved in a suit, including recognizing a larger social purpose for copyright as cultural policy, we might think that ethnomusicologists are well situated to tell us something about music's importance and meaning to society at large --the overall target of (c) law and fair use.

  4. If ethnomusicologists are not suitable to lend their expertise on transformativeness to the courts' evaluation of whether a particular use of copyright material is covered by the fair use provisions in the law, who is?

    It is a shocking admission on your part that you are able to work at the level that you do in the IP arena without engaging with some of the key discussions that are taking place around the legal and cultural issues brought up by the advent of digital technologies.

    Law cannot be divorced from culture, particularly on cases regarding the regulation of culture and its artifacts.

  5. @rearleft:

    There's no need for expert testimony of any sort on the issue of transformativeness. The case law tells us quite clearly that simply retransmitting a copyrighted work without changing it is not a transformative use.

    If you are shocked to learn that copyright lawyers don't sit around discussing Barthes, then you probably don't know many copyright lawyers.

  6. The point is also that ethnomusicologists, alongside reading scary theorists like Barthes, also do systematic empirical research on music in everyday usage (as well as special usage I suppose). Systematic empirical research is not the be-all of legal opinion by any means, but it's not unheard of for experts to be people who do it.

  7. This coversation is a bit ridiculous, frankly. It's meant for a Congressional hearing as to whether the Copyright law should be "changed," not as to how the actual law applies to the facts of this case. Whether a use is "fair" has absolutely nothing to do with how people perceive music, whether they like to share music in general, etc. It has everything to do--as the law currently stands--with the fair use factors and the literally thousands of cases that have defined those factors. The fair use argument is likely to be stopped at summary judgment, and when the case is over, the copyleft can again appeal to Congress to ease up the law or the damages based on the type of information Dr. Marshall wishes to provide.


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