Public Access Media interviews Girl Talk (Greg Gillis) prior to his performance at the Capitol Hill Block Pary in Seattle, WA (2008). “With my work,” Gillis says, “there’s a thing called fair use in United States copyright law that allows you to sample without asking for permision if it falls under certain criteria — if the work is transformative, doesn’t negatively impact potential sales — so that’s where I stand and the label [Illegal Art] stands.”

In spring 2009, Shepard Fairey, Steven Johnson, and Lawrence Lessig sat down at the New York Public Library to discuss balancing artistic freedom and copyright law. Lessig mentions Viacom’s policy toward remixing, noting that the media giant will not remove videos with transformative elements in order to encourage creativity.

In light of the recent Viacom v. YouTube lawsuit, his statement (@03:44) gave me pause:

In fact, Viacom does tout a Fair Use policy on its website — the version I found, located on the company’s YouTube litigation resources page:

Viacom recognizes that the “fair use” doctrine may permit some use of limited amounts of copyrighted material for specific purposes such as criticism, commentary, teaching or parody. You may learn more about some of the factors that apply in making a fair use determination at the following link on the Copyright Office website:

http://www.copyright.gov/fls/fl102.html

There are no specific rules to determine whether a particular use is fair use. Although our policy is not to take down material that we believe is a good faith fair use of our content, we cannot give you legal advice on this subject and we may enforce our rights if we disagree with a claim of fair use. Regardless of the law of fair use, we have not generally challenged users of Viacom copyrighted material where the use or copy is occasional and is a creative, newsworthy or transformative use of a limited excerpt for non commercial purposes.

The complaint does not reveal what amount of the alleged 150,000 unauthorized clips include creative, newsworthy or transformative uses, if any.

Fordham Law is launching the Fashion Law Institute next fall to train fashion lawyers and provide legal services for the fashion industry.

The center is supported by the Council of Fashion Designers of America (CFDA) and its President Diane von Furstenberg.  From the Fashion Law Institute :

Working in partnership with CFDA, the Institute will provide Fordham Law students with opportunities to become leaders in this emerging field. Students will develop skills in diverse areas of the law that affect the fashion industry, including intellectual property, business and finance, international trade and government regulation, and consumer culture and civil rights.

The Institute, directed by fashion lawyer and professor Susan Scafidi, will benefit from its proximity to Manhattan’s Garment District, creating opportunities for internships at fashion houses.

In 1991, Negativland released U2. The EP mashed a rant by American Top 40 host Casey Kasem with samples of U2′s I Still Haven’t Found What I’m Looking For and an accompanying kazoo. U2′s label Island Records sued Negativland alleging both copyright (unauthorized sampling) and trademark infringement (misleading cover artwork) — according to the band, the single was “sued out of existence.”

Negativland later revealed its intent to skewer Kasem for his cuss laden off-air tirade, not parody U2. Among his more timid exclamations, “This is bullshit. Nobody cares. These guys are from England and who gives a shit.” For his part, Kasem said, “Well, I don’t like what they did, it’s embarrassing to me, but I’m for free speech.”

In 1992 Don Joyce and Mark Hosler of Negativland were contacted by Mondo 2000 magazine to participate in a telephone interview with U2′s guitarist, The Edge. On June 25th, Mondo editor R. U. Serius, allowed Negativland to pepper The Edge with questions about the controversy.

Apart from stating it was “probably the most surreal interview” he’s ever had (after being asked for a loan), The Edge was sympathetic to the band’s conundrum:

Don Joyce: See, you’re quite right about their main concern being the cover rather than the content, we always felt that and I think that was obvious from their lawsuit, the way it was worded, but they never came to us in the first place and simply said: “Change the cover.”

Edge: Yeah.

D: And instead they just smashed the whole thing including the content…

E: Yeah, really. I think we would have reacted in a different way, but the lawsuit was not our lawsuit. Although we have some influence, we weren’t in a position to tell Island Records what to do.

Negativland, U-2 (Special Edit Radio Mix):

The skirmish is documented in Craig Bladwin’s Sonic Outlaws (1995). A detailed account of the “legal, ethical, and artistic odyssey” is available in Fair Use: The Story of the Letter U and the Numeral 2 a book/CD combo released by Negativland in 1995.

In 2007, Viacom filed a $1 billion lawsuit alleging Google is liable for the intentional infringement of thousands of copyrighted works on YouTube. On Wednesday, U.S. District Court (SDNY) Judge Louis Stanton granted summary judgment in favor of Google.

Viacom argued the search company had actual knowledge of infringing activity on YouTube or was generally ‘aware of facts and circumstances from which infringing activity’ could be inferred. In either case, it claimed that Google failed to act expeditiously to stop it.

Judge Stanton disagreed, cautious not to contravene the legislative intent behind the Digital Millennium Copyright Act (DMCA). The court noted that when Google was apprised of infringing material via DMCA takedown notices, it acted swiftly to remove the offending videos:

[W]hen Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.

Yep — a deluge of notices, most of which were removed within 24 hours — hardly a sluggish response.

The court was equally unwilling to submit to Viacom’s claim of general knowledge of infringement, noting:

To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

The DMCA safe harbor does not require proactive monitoring for infringement, instead it places the burden on copyright owners to notify the service provider — clearly not the preferred method of enforcement of Viacom and its ilk, surmising that Google “had the right and ability to control [infringing] activity” — to which the court opined:

DMCA [...] establishment of a safe harbor is clear and practical: if a service provider knows (from notice from the owner, or a “red flag”) of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the infringement. General knowledge that infringement is “ubiquitous” does not impose a duty on the service provider to monitor or search its service for infringements.

I suspect Viacom will immediately appeal, but I don’t foresee the Second Circuit Court of Appeals emasculating the DMCA safe harbor either.

More from EFF.

Audio from Nate Harrison’s Can I Get An Amen? (2004), an installation that “unfolds a critical perspective of perhaps the most sampled drum beat in the history of recorded music,” the Amen Break. Harrison explains the evolution of the world’s most recognizable beat break — from b-side drum solo to raw material used in decades of contemporary music.

Plunderphonics is a term coined by composer John Oswald in his 1985 essay Plunderphonics, or Audio Piracy as a Compositional Prerogative. Oswald describes the practice of making music from previously recorded material. His method was the audio equivalent of William S. Burroughs’ literary cut-ups.

Oswald’s polemics about the future of “new-fangled, much-talked-about digital sound sampling devices” are prophetic:

Can the sounding materials that inspire composition be sometimes considered compositions themselves? Is the piano the musical creation of Bartolommeo Cristofori (1655-1731) or merely the vehicle engineered by him for Ludwig Van and others to manoeuver through their musical territory? Some memorable compositions were created specifically for the digital recorder of that era, the music box. Are the preset sounds in today’s sequencers and synthesizers free samples, or the musical property of the manufacturer? Is a timbre any less definably possessable than a melody? A composer who claims divine inspiration is perhaps exempt from responsibility to this inventory of the layers of authorship. But what about the unblessed rest of us?

Let’s see what the powers that be have to say. ‘Author’ is copyrightspeak for any creative progenitor, no matter if they program software or compose hardcore. To wit: “An author is entitled to claim authorship and to preserve the integrity of the work by restraining any distortion, mutilation or other modification that is prejudicial to the author’s honor or reputation.” That’s called the ‘right of integrity’ and it’s from the Canada Copyright Act. A recently published report on the proposed revision of the Act uses the metaphor of land owners’ rights, where unauthorized use is synonymous with trespassing. The territory is limited. Only recently have sound recordings been considered a part of this real estate.

In 1989, Oswald released Plunderphonics. — a 25 track album featuring mashups of notable musicians, including The Beatles, Michael Jackson, James Brown, Elvis Presley and Dolly Parton, among others. While the album was never offered for sale, all undistributed copies were destroyed after the Canadian Recording Industry Association (CRIA) threatened legal action.

On Tuesday, U.S. Intellectual Property Enforcement Coordinator, Victoria Espinel, released the Joint Strategic Plan to Combat Intellectual Property Theft. In a blog post, Espinel notes the importance of balancing enforcement and creativity via fair use, “The Obama Administration has always embraced the free flow of information, online collaboration, and fair use by average citizens, which are also helping to advance our society and economy every day — this strategy does not target legitimate and legal activity.”

At the unveiling (below), Espinel and Vice President Joe Biden summarize the plan, including proposed legislation to identify counterfeit products and thwart online piracy.

It’s clear the government is taking an uncompromising approach to piracy. As Vice President Biden put it, “Piracy is theft. Clean and simple [...] It’s smash and grab. No different than a guy walking down Fifth Avenue and smashing the window at Tiffany’s and reaching in and grabbing what’s in the window.”

However, Espinel’s report notes the importance of Fair Use as a means of supporting innovation and artistry.

Article I, Section 8 of the U.S. Constitution vests in the Congress the discretion to establish laws to promote science and artistic creativity “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Over the last two centuries, our Founding Fathers have been proven right. One of the reasons that the U.S. is a global leader in innovation and creativity is our early establishment of strong legal mechanisms to provide necessary economic incentives required to innovate. By the same token, fair use of intellectual property can support innovation and artistry. Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it.

More from TechDirt. Read the Join Strategic Plan.