Tom’s Diner and the Origin of MP3s

Suzanne Vega has a fascinating essay over on the New York Times website about her song, “Tom’s Diner,” and its subsequent history, which is rich with details about the artistic creation process, how an artist reacts to an unauthorized remix, the burdens of licensing, and the history of MP3 files. “Tom’s Diner” was originally released as the lead track on her best-selling album (the one that had “Luka” on it). A few years later, a pair of studio engineers calling themselves “DNA” remixed Vega’s a cappella “Tom’s Diner” with instrumentals and a base beat, turning it into a dance track. They then printed up some vinyl records and began selling them, which attracted the attention of Vega’s label. But Vega herself liked the remix, and a licensing deal was struck. To Vega’s surprise, the remix took off and became a hit, three years after the original song was released.

And then there’s the story about how “Tom’s Diner” was used to create the MP3.

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Who’s Afraid of ProCD?

It’s a prevalent meme in contemporary copyright scholarship that the public domain is being “enclosed” by expansions in copyright law. Scholars point to many examples of this alleged expansion, including term extension, anticircumvention laws, and court decisions rejecting certain attempts to claim fair use. But one widespread source of complaint among copyright scholars is the idea that contracts are somehow being used to expand copyright owners’ rights. And the chief villain in this story is the decision that allegedly started it all, the Seventh Circuit’s own ProCD v. Zeidenberg, authored by Judge Frank Easterbrook.

I should note right off the bat that I am not quite so enamored of form agreements as Judge Easterbrook is. That much I probably share with my fellow copyright specialists. But I’ve come to the tentative conclusion that the case for contracts somehow expanding copyright rights is vastly overstated, and perhaps illusory. ProCD–with the exception of one overlooked wrinkle–is not the threat everyone seems to think it is.

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Copyright Catch-22

With the closing of Bill Patry’s Copyright Blog, there’s a distinct absence of copyright wonkery on the web. So I will occasionally do my best to chip in. Today’s case raises the following possibility: Suppose you run a business heavily dependent on a certain software program. And suppose the owner of that program keeps writing you cease and desist letters, saying that your copy is infringing and that each passing day accumulates more actual damages, as well as your profits attributable to the infringement. You want to clear this cloud from your business, and heaven forfend, if you are found to be infringing, put a cap on the damages. But let’s suppose the owner hasn’t gotten around to actually registering the copyright yet. Can you sue for a declaratory judgement action?

In Weitzman v. Microcomputer Resources, the Eleventh Circuit said no. That intolerable situation can persist until the owner finally decides to sue you instead.

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