A federal judge declared that a famous song about public property is still private property

Originally published at: https://boingboing.net/2020/03/02/a-federal-judge-declared-that.html

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So this “land” is NOT my land…

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When I was a kid, I’m ashamed to admit, we sang the song with alternative lyrics…

This land is my land
It is not your land
I’ve got a shotgun
And you ain’t got one
If you don’t get off
I’ll blow your head off
This land is private property.

Thing is, we were small kids and yet we knew we were being jerks.

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Ironically, Woody borrowed the melody from another popular song of the era, “Little Darlin Pal of Mine”, so it was in questionable legal territory from day one.

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he essentially threw it out on a technicality,

It’s not a technicality. The case and controversy clause is essential to what they courts are and do. Courts aren’t supposed to shape public policy, they are made to solve real disputes in accordance with established law.

And this is so frustrating, Both Tom Dunn of Boing Boing and Niraj Chokshi of the New York Times, missed a vital point to this decision. https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2016cv04464/458810/43/ Publishing an article like this without actually reading the decision is such poor journalism.

Ludlow refunded the license fee and entered a binding agreement not to sue Satori for any past, present or future conduct related to claims on the song. Satorii gets to publish version 2 of their song and the music video without fear of being sued. They won more or less.

While they didn’t get the sweeping declaratory relief they wanted, there is now a public record of Ladlow backing down from their claims, and the research are augment presented to the court available for anyone to use in the future.

And it is certainly not a declaration that Ladlow’s copyright claims are valid. The court made no determination about the copyright itself, and in fact had no Jurisdiction to do so in the case after Ladlow waived all potential claims against Satorii.

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Freedom means maybe having to hear a beloved song used to promote the worst society has to offer. I guess that’s too free.

The Libertarian version?

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And, unfortunately, that’s not the only ode to the worker still under copyright protection:

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This song is your song, this song is my song,
From introduction, to the verse’s lick and stanza,
From the repetitive chorus, to the bridge and outro,
This song was made for you and me.

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So many variations.

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and “The World’s on Fire” too.

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Yeah the headlines on this story have been driving me nuts. The judge clearly absolutely in no way “declared that a famous song about public property is still private property.” And while that’s clear for anyone who actually reads the story, and I understand headlines are intended to grab your attention not to be 100% accurate, they also shouldn’t be 100% wrong, and this one is.

I’ll quibble with one thing you said, though. You said courts aren’t supposed to shape public policy. The United States justice system is based on English common law. Judges shape public policy all the time, and that’s by design, although I sometimes think it might be better if we were a civil law country like most of the planet. But, we’re not, so here judges get to make law, and that obviously shapes public policy.

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maybe the melody is stolen, but the land definitely was.

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“This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”
-copyright notice frequently used by Guthrie

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Yes, I was over-simplifying there. Common or customary law, at least in theory is supposed to trail custom and expectation, and only as it pertains to equity in actual disputes. It’s also supposed to be based on solid reasoning and precedent.

In practice, even the most complete set of civil law is going to be incomplete to every circumstance and set of facts, and judges will draw from some sort of personal and social compass to get nudge things towards a “fair” resolution. Even the most pedantically written laws leave some room for interpretation
especially as the ground facts reality of the application field continues to change. And that application is going to change our interpretation of future applications. That sort of shaping is unavoidable and often, but not always desirable. Thus the requirement for true adversaries, otherwise the judiciary could inject it’s opinion anywhere it wanted to

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A federal judge declared that the questionable property rights of a famous song about ignoring questionable property rights weren’t ignored

FTFY

…because folk music has always heavily relied upon reinterpretation and parody. Just about any traditional folk tune will have several different sets of lyrics, and that practice continued into the 20th century.

For example:

Or:

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To be fair, I thought Joe Hill (and any other Wobbly songwriters) deliberately used familiar tunes, because the idea was to get people to sing along, to pass along the songs. Using popular tunes of the day, people would already know the tune, just needed to learn the new lyrics.

Remember, Wobbly sings were for organizing, for propaganda. They didn’t have to be great songs, though a hundred years later we may seem tgem in more isolation.

Let’s not forget that Phil Och’s song “Joe Hill” (not to be confused with Earl Robinson’s “Joe Hill” performed by Joan Baez at Woodstock, and others) is done to the tune of Woody’s “Tom Joad” (which recaps the book or movie, in case people didn’t have the) money. “Tom Joad” likely uses someone else’s tune, I forget.

Then Billy Bragg used the tune and some of the lyrics from Earl Robinson’s “Joe Hill” for a song about Phil Ochs.

Let’s not forget that “Linux” had no trademark n tye name until some company noticed and trademark, then went after others to charge them for the use of the name. Linus had to go to court to regain the name, and then put it under trademark.

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Also:

And then there’s:

This is a disappointing result, particularly because the judge didn’t make much of a ruling either way — he essentially threw it out on a technicality…

Not the first time lately I’ve seen a liberal type sad because of the lack of dictatorial, authoritarian action. The judge was right here. The last thing we need is Trump’s lawless behavior to be SOP for everyone.