Speaking of foolish consistencies, or inconsistencies, Professor Patry commented this morning on the silly Sixth Circuit (third) opinion in Bridgeport Music issued last Friday. When I commented on the underlying decision back in September of last year, I said:
Whether the Sixth Circuit was right or not—its position has at least the attraction that it sets a bright-line test, which is almost unheard-of in anything related to fair use—will no doubt be ignored. Instead, we're going to see posturing on one side from the recording industry, claiming that this is the only way to protect its valuable properties and make sure musicians get paid, and from rap/hip-hop artists on the other, claiming that this will enable the music industry to stifle all creativity. The music industry's argument founders on one teeny-tiny counterfactual: The musicians won't see a dime from any license fees collected. The work-for-hire nature of phonorecordings and abusive contract practices rampant in the industry will see to that.
Professor Patry is more concerned with the underlying substance:
Bridgeport is policy making wrapped up in a truncated view of law and economics, shorn of analysis of all the public interest factors and harm to derivative creators that nuanced exponents, such as Judge Posner, engage in. It is also bad for record companies on two fronts (and I think it important to note that this is not an RIAA suit). First, it adds fuel to the fire for those who believe record companies are engaged in an effort to prohibit any and all unauthorized copying (I think this is not an accurate view, by the way). Second, it harms record companies by forcing them (at least in the 6th Circuit) to engage in a retroactive process of determining who they may have to pay off for past, unpaid samples and well as possibly requiring them to institute extremely restrictive future policies.
If nothing else, this is just more reason to move copyright matters to the Federal Circuit.