The Ash Twins Blog

I just learned that, by US statute, music publishers cannot prevent artists from recording and selling cover songs. According to CDBaby,

The Copyright Act provides for what is called a “Compulsory License” for downloads and CD sales, which means that if you follow the steps set forth by statute, you can distribute your recording of that song on a CD or over the internet.

Federal Judge Richard Posner writes that in the case of the compulsive license,

the licensee does not have to negotiate with the licensor, and so licensing costs are zero. The fee that the licensee under a compulsory license must pay is not meant to defray the licensing costs, in whole or in part, but to compensate the copyright owner for the value of his property (more precisely, the value represented by the copyright) . . . [L]ike fair use, compulsory licensing is a further testament to the perceived significance of intellectual property licensing costs as a barrier to the efficient allocation of such property.

The statutorily mandated royalty for selling an individual cover song is 9.1¢ if the song is under 5 minutes, plus 1.75¢ for each additional minute of duration.

After learning how small cover-song royalties were, I was a little puzzled that a market for cover songs has not developed. What would seem to me to be a cunning business model would involve producing near-identical recordings to popular hits and selling them at a discount. With iTunes downloads at 99¢, one could sell the covers for half price (49¢) and still make 40¢ of revenue from each download after paying the royalty. Alternatively, one might create a near-identical cover of a popular song and release it on the internet for 10¢, democratizing the market for popular music while recouping royalty costs.

One might be concerned with meeting the costs of producing a near-identical duplicate, but those would be negligible in comparison to the sales of most popular recordings.

Harvard Law Professor Noah Feldman confronts the problematic relationship between the US Supreme Court and international law in Sunday’s New York Times Magazine. Feldman offers an honest account of the limitations of constitutional interpretation:

Looking at today’s problem through the lens of our great constitutional experiment, it emerges that there is no single, enduring answer to which way the Constitution should be oriented, inward or outward. The truth is that we have had an inward- and outward-looking Constitution by turns, depending on the needs of the country and of the world. Neither the text of the Constitution, nor the history of its interpretation, nor the deep values embedded in it justify one answer rather than the other. . .

[T]his requires the Supreme Court to think in terms not only of principle but also of policy: to weigh national and international interests; and to exercise fine judgment about how our Constitution functions and is perceived at home and abroad. The conservative and liberal approaches to legitimacy and the rule of law need to be supplemented with a healthy dose of real-world pragmatism. . .

Feldman’s pragmatism leads him to insightful reframings of traditionally ideological issues:

The reason those with power prefer law to brute force is that it regularizes and legitimates the exercise of authority. It is easier and cheaper to get the compliance of weaker people or states by promising them rules and a fair hearing than by threatening them constantly with force. . . On those occasions when the weak, using the machinery of courts, are able to vindicate their legal rights, the reason their demands are honored is generally that those who have the most influence in the system recognize it is in their own long-term interest to make the concession. . .

The Supreme Court therefore was right to reinsert Guantánamo in the legal grid — but not because this was definitively the best reading of the constitutional materials, which were contradictory and indeterminate. What justifies the decision is the practical necessity and importance of reassuring the citizens of the United States and the world at large that the United States had not given up the role it assumed after World War II as the chief proponent of the rule of law worldwide.

Salon’s Andrew Leonard sums it up.