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Herbie Hancock Quintet Plays "Cantaloupe Island":
Herbie Hancock recorded a string of wonderful Blue Note records in the 1960s, and one of his best was his 1964 recording Empyrean Isles with Freddie Hubbard on trumpet, Ron Carter on bass, and Tony Williams on drums. The album featured one very catchy tune, Cantaloupe Island, amidst the otherwise not-particularly-commercial music. Here's the original group joined by Joe Henderson playing the song on February 22, 1985, at a reunion concert celebrating the rebirth of Blue Note Records:

This performance is taken from a terrific DVD, One Night With Blue Note. Definitely worth checking out. (Oh, and for the copyright folks out there, I note that the clip has been up for almost a year and has over 125,000 views; I'm assuming that the copyright holders don't object to it being posted.)
Beth Mauldin (mail) (www):
It's so cool to hear the original source for the US3 song I've been listening to for years. http://www.google.com/musicl?lid=PxhoEMmzW6K&aid=zORBXoaiJXI Thannks!!
11.25.2007 6:42pm
Anonymouseducator (mail) (www):
Flip fantasia.
11.25.2007 8:03pm
Oren:

Oh, and for the copyright folks out there, I note that the clip has been up for almost a year and has over 125,000 views; I'm assuming that the copyright holders don't object to it being posted.


I'm totally behind you philosophically on this one but I'm certain that a lawyer of your caliber knows that this is no defense.
11.25.2007 9:04pm
George Weiss (mail):
I'm totally behind you philosophically on this one but I'm certain that a lawyer of your caliber knows that this is no defense.

i dont think he means...if they do complain im in the clear...

i think he means..they wont complain..and if they do..then i loose..but its worth the risk because the risk is so slight.
11.26.2007 12:10am
taxjock (mail):
If infringement is good enough for Google, it's good enough for bloggers!
11.26.2007 12:29am
Siona Sthrunch (mail):
As I've said many times, everyone knows, or should know, that lawyers posting on Volokh are effectively immune from any copyright suit. It's much too expensive to litigate against a bunch of lawyers. Kerr can freely post from now till doomsday and never fear paying any monetary penalties.

The only "penalty" the blog suffers from its hosting of Kerr's continual copyright infringement (he posts these kinds of videos periodically) is that it weakens the philosophical underpinnings of the blog's stated commitment to the rule of law and of the constitution. Because Kerr and Volokh both financially benefit from copyright enforcement - seeing as how they both have books that they most emphatically do not put in the public domain - this also makes Kerr's copyright infringement fairly hypocritical.

Is this clear? Even though noone will sue Kerr (or Volokh for that matter), when Volokh turns around and tries to argue that "the First Amendment protects the Phelps" or that "the Second Amendment protects the individual right to bear arms" he loses credibility. If he can fudge on the copyright clause of the constitution to gain readership, why shouldn't he fudge on other aspects?
11.26.2007 12:51am
Cory J (mail):
Siona,

As I've said many times, everyone knows, or should know, that lawyers posting on Volokh are effectively immune from any copyright suit. It's much too expensive to litigate against a bunch of lawyers. Kerr can freely post from now till doomsday and never fear paying any monetary penalties.


Could you elaborate on this point?

Copyright holders for something like the DVD in question ultimately trace back to a huge conglomerate, or at least that is my impression. I doubt they'd be much scared of taking on a sole law professor.

Even if they didn't, I would think law profs and lawyers in general don't want to spend the vast amounts of time and money (opportunity costs) on their hobbies.

A professor at my law school had action taken against him for comments left on his blog; instead of fighting (he would probably have won) he simply complied with the complainant's request. I'm sure Orin has a lot of other things to do with his free time, and I'd wager a guess that defending against a lawsuit--even if he felt very strongly about it--is pretty low on his priority list.

Plus as far as financially benefiting from this blog...I don't think they make much of anything (Orin said $1.50/hour or so, IIRC.) Furthermore, I doubt many visitors check this blog for the occasional video post by Orin. In short, removing these types of posts wouldn't harm their financial benefits, if any.

Frankly, I'm glad Orin posts these videos. I've just recently started to listen to the blues and it's hard to know where to start. I've picked up a few CDs based on what I've heard.
11.26.2007 1:12am
Edward A. Hoffman (mail):
Wow, that was great! Thanks for posting it.
11.26.2007 2:34am
Robbie1687:
Orin has merely embedded a link to YouTube on his blog. He hasn't copied the video or even an image of the video. Those things exist only on YouTube's servers. When the reader's browser downloads the blog, it sees the link to YouTube, uses that link to retrieve an image of the video from YouTube, and integrates the image into the rest of the webpage.
11.26.2007 8:46am
Just Dropping By (mail):
Orin has merely embedded a link to YouTube on his blog. He hasn't copied the video or even an image of the video.

Since I believe there are courts which have held that even linking to a source without embedding it can be infringement, I wouldn't rest too heavily on this argument. On-topic, I love this piece, but because of Civilization II it always makes me think of Leonardo Da Vinci.
11.26.2007 9:30am
Oren:
Robbie, that might be how copyright could logically work but the 2nd circuit thinks otherwise.

The issue isn't exactly the same but the 2ndC upheld and injunction against merely linking to the infringing work.

Similarly, linking can be contributory infringement.
11.26.2007 10:25am
Gregory Conen (mail):
@Cory: What your prof probably got was a C&D request or a takedown order under DMCA Title II. He was requested to remove the infringing content, with the understanding implicit or explicit, that he would not be sued if he complied. Incidentally, that would probably what Orin would get, too, and he would probably comply.

The requests for settlement are usually sent out for file-sharing. Those rely on the fact that very few people actually challenge them, so sending one to computer law professor might be a bad idea.
11.26.2007 10:50am
Siona Sthrunch (mail):
The comments about how much posters "love" Kerr's linking to copyrighted videos underscores my point and calls for clarification: why, given the pervasiveness of contributory copyright infringement on blogs, am I picking on infringements on this one blog?

It is because this blog frequently argues that the constitution and the laws protect people even when those protections are inconvenient. For example, Volokh argues that the First Amendment protects the Phelps demonstrations, even though nobody likes them. He also argues that the Second Amendment protects individuals' right to bear arms in Washington, even if the majority feels the state's and even gun-owners' interests are better served by abrogating the right. Many other legal positions on this blog take that pattern.

By contrast, as to copyright, the blog takes the position that because it's convenient and fun to violate artists' copyright, it's OK.

To the extent that (1) this site wants to build popular readership, it should continue to violate copyright rights of artists by contributorily infringing their works. To the extent that (2) the site wants to foster its general stance of respect for law and the constitution the site should respect copyright.

As another caveat, however, the kind of reader supporting or enticed by the first kind of violation is the kind of reader unlikely to be sympathetic to the strong constitutional interpretations of the rest of the blog. So even if the blog does draw readers by violating copyright, those readers will necessarily create an unfriendly atmosphere for, say, the Second Amendment philosophy here. That's because those readers are precisely the readers for whom expediency and self-interest trump disinterested legal analysis.

I don't ask Kerr or Volokh to act one way or other, nor for readers to accept approach (1) or (2) as better or worse. I don't argue that the libertarian or constitutionalist orientation of this blog is correct. I only ask that the philosophical and practical consequences to that orientation of condoning contributory infringement be understood.
11.26.2007 11:28am
Roy S.:
I guess you can lead a bunch of lawyers to great jazz, but you can't make them "drink" it. People. We can all analyze the issues six ways to Sunday. Orin's given you something far more valuable here than a lesson in copyright. Enjoy the music.
11.26.2007 11:58am
Orielbean (mail):
Siona, even if the contributory linking issue was completely put to rest by the courts (it has not) or even if the Youtube site was ignoring a DMCA takedown notice (it usually complies quite quickly), the case could be made that this link on the Conspiracy falls under Fair Use for commentary, criticism, or educational purposes (even as I admit that fair use isn't decided issue either). I didn't know much about the blues, but this was a useful link for me to view - I learned something. I also am finding the comments useful from this link.

Siona, this site has great discussion of law and its growth. Copyright law is nowhere near a decided and final issue, so what is the problem?

Your own ignorance of DMCA is astounding. The RIAA would post a DMCA notice to Youtube's ISP, and Youtube's ISP would remove the content - no need to notify Youtube directly. The ISP's are protected as common carriers, so they have no skin in the game to fight a DMCA notice that may not be legit. They simply remove the content without a fight. Typically the ISP and not the uploader is contacted regarding a DMCA notice, as it can be tricky to determine who a particular user is at any given moment, but the ISP has a clear "whois" brick &mortar or webmaster address for easy lawyering.

Youtube is well-known for removing potentially infringing content, and they are just as responsible and more visible than Volokh to a watchdog, so I see little moral issue here with contributory linking. Now, if the Conspiracy were linking to a bittorrent file or some other murky file, a bigger ethical question is raised.

In short, lighten up Francis.
11.26.2007 12:12pm
Gregory Conen (mail):
@Orielbean: While the precise limits of fair use are poorly defined, this almost certainly is not. The entire song is shown, not an excerpt, and the commentary certainly doesn't require that.

Rights holders are reluctant to wield the full might of the law, knowing that public opinion will change those laws if aroused. I will be stunned if this sort of thing provokes more than a takedown request, even if this level of infringement would technically allow more.

@Siona: Unlike freedom of speech, copyright protection is only obliquely mentioned by the Consitution (as amended). Every infringement of free speech must be balanced against the constitutional forbidding its "abridgement". Current copyright protection is far stronger than the Constitution requires; in fact it is growing to the extent that it borders on too strong for the constitution. See Eldred v. Ashcroft. While respect for rule of law might restrain even socially acceptable copyright infringement, respect for the constitution would not.
11.26.2007 12:54pm
Brian G (mail) (www):
The copyright holder would be stupid to object. I want to buy the DVD from seeing that clip. I can only imagine how many others bought it within minutes of seeing it.
11.26.2007 2:12pm
Oren:

The copyright holder would be stupid to object.


Objection: irrelevant.
11.26.2007 3:33pm
Edward A. Hoffman (mail):
Oren wrote:
The copyright holder would be stupid to object.
Objection: irrelevant.
Oren is right. Copyright holders are free to enforce their rights even when others think doing so would be counterproductive.
11.26.2007 4:08pm
cmn (mail) (www):
Relax, everyone. This is a non-issue. Blue Note is owned by EMI. EMI has licensed its material to be posted on YouTube. See here:
11.26.2007 4:13pm
i can see for Miles (www):
"I doubt many visitors check this blog for the occasional video post by Orin."

I thought this was a music website. The only reason I come here is for the free jazz
11.26.2007 10:46pm
ElliotS:
Awesome clip. Just the look on Freddie Hubbard's face when he finishes his solo...
11.27.2007 5:11pm