COPYCENSE

To quote Worm (Edward Norton) in the 1998 film Rounders, “Wow!! Lot of action. Lot … of … action.” There was so much material for this week’s Clippings that we’ve decided to analyze our Article of the Week separately.

This week’s edition features lots of good material concerning Big Music and its broken business model; thoughts about lawsuits; thoughts about digitization; and not one, but (count ’em) two Quotes of the Week.

Article of the Week

Julia Angwin, et al. Record Labels Turn Piracy Into a Marketing Opportunity. post-gazette.com.(via The Wall Street Journal). Oct. 18, 2006. We will analyze this article later this week as a separate CommuniK. post.

Quotes of the Week

“If we can have a legal YouTube, we can have a legal P2P service.” — Bob Lefsetz, editor and publisher, The Lefsetz Letter.

The Lefsetz Letter. YouTube Deals. Oct. 9, 2006. There is virtually nothing else we can add. But even more important than this quote is Lefsetz’s industry analysis (which is consistent with ours): “piracy” is not Big Music’s biggest problem; its broken business model is. That broken business model has virtually nothing to do with “piracy,” and Big Music executives should take full responsibility for their failure to recognize their business is broken. (They also should concede their laziness in relying on litigation and Congressional coffer stuffing to halt commercial and technological development while they get their act together.) We all know what happens to a business that can’t cut it anymore in a changed environment: it dies. And some of those deaths can be sad, as the closing of CBGB illustrates. But life moves on. If Big Music cannot get its act together in a new environment, let it perish as other industries unable to adapt have perished. This is, after all, the flip side of capitalism: adapt or die.

“The [entertainment] business has changed so massively. … You will never have the market forces again that, how do I put this, that allow people to get rich.” — Dick Wolf, creator and executive producer, Law & Order.

Brian Steinberg. ‘Law & Order’ Boss Dick Wolf Ponders the Future of TV Ads (Doink, Doink). post-gazette.com (via The Wall Street Journal). Oct. 18, 2006. Earlier this year, Dick Wolf claimed that his television franchise generated $1 billion in advertising revenue. Even if the actual numbers are only half that estimate, what’s incontrovertible is that Dick Wolf has made a ton of money in the “old school” environment. But what is really interesting is Wolf’s admission that the game has changed so radically during his Law & Order run that the business model he has used to make his money would not work if he were starting today. Further, if you read between the lines, Wolf seems comfortable with having entered the business at the right time with the right concept, having made his money, and seems pleased to move on without regret (and without whining that his formula no longer generates $1 billion in ad revenue). We wonder how many other Big Content executives can say they know when to hold ’em, know when to fold ’em, know when to walk away, and know when to run.

CommuniK. Clippings

Wendy Grossman. Preserving A Copy of the Future. The Guardian. Oct. 19, 2006. Wow!! A national library fighting the music industry over term extension. Too bad America’s de facto national library (which runs this nation’s copyright office) hasn’t seen fit to fight similar battles over term extension here. Oh, wait, we forgot: America’s copyright officer in chief waited seven years to concede that America’s last term extension went too far. Thanks for weighing in.

SiliconValley.com (via Associated Press). European Artists Defend Copyright Levies on Gadgets, Blank Discs. Oct. 18, 2006. With approximately $690 billion collected last year (and a levy of 180 euros, approximately $226, for a 60 GB iPod), you had to know any attempt to halt this tax would be very controversial. On the surface, it seems ridiculous, but if most of this money really is going directly to creators (instead of to content companies, which occurs in the American system), is it an overall bad system? We think, though, that if artists are receiving this sort of subsidy, then copyright terms should be very brief, certainly much shorter than the “life plus 70” term that America has (and European Union countries seem to want to adopt).

Xenia P. Kobylarz. Judge Sanctions Firm for Filing ‘Cookie-Cutter’ Patent Infringement Complaints. Law.com (via The Recorder). Oct. 18, 2006. Second paragraph of this story reads: “A federal judge in the Western District of Washington has sanctioned an attorney and his law firm for sending dozens of ‘fill-in-the-blank’ demand letters and filing cookie-cutter patent infringement complaints on behalf of client Eon-Net, a patent holding company based in the British Virgin Islands.” If you change “patent” to “copyright,” and replace “Eon-Net” with “Big Music,” why wouldn’t the same logic apply to file-sharing lawsuits?

Ars Technica. RIAA Drops File Sharing Case. Oct. 15, 2006. Big Music’s random litigation based on scant evidence is not news. Big Music dropping a case with prejudice after a consumer fights back (again, based on scant evidence) is news. What we’d like to see is a network of law school litigation clinics begin to accept these cases to fight the case at pre-trial and negotiate settlements, if settlements are applicable. The only level Big Music has in many of these cases is the cost of litigation. Those who have been using large amounts music without paying anything should pay through settlement. Others who haven’t done anything should not have to spend one cent on spurious charges in federal court. And in really egregious cases like this one where the evidence is weak, we’d also like to see defendants begin asking for sanctions under FRCP Rule 11.

Thudfactor. Gunfight at the Circle-C Corral. Oct. 15, 2006. If not for Bob Lefsetz’s simple, dead on quote, we would have made this our QoTW: “The rampant violation and disrespect for copyright law demonstrates the extent to which copyright law is broken, and having heavy-hitting violators in the game will hopefully make some strides towards repairing it and making it useful again. Copyright holders have been unable to come to terms with the basic truth of their product: copyrighted works are by definition cultural assets. Performance, music—even computer games—become parts of people’s lives. They generate emotional response, they accrue emotional attachment, and in many cases become integrated into people’s identity. People want to pass along the art and stories that appeal to them; it is a basic social activity that predates written language. You can no more expect people to stop sharing their culture than you could expect people to stop six thousand years of beer drinking because a handful of sanctimonious nutjobs pass Prohibition.”

Antony Bruno. Digital Rights in Question As Business Model. WashingtonPost.com (via Reuters). Oct. 15, 2006. We find it rather amazing that in a few short years, now even the mainstream press is openly questioning DRM as a business solution. (Of course, these questions are all the more relevant now that Microsoft has released its Zune music player with yet another DRM scheme that is incompatible with all others.) This article, though, goes even further in that it calls for Big Music to make available .mp3 files with no DRM restrictions at all. The hardcore liberal sect of the copyright crowd has been trumpeting this view for several years, but as recently as two years ago, this suggestion never would have been published in a major newspaper. (Note: While this article is provided through the Reuters news wire, Bruno actually writes for Billboard, the leading music industry publication, which makes the article’s tone all the more extraordinary.) Compare this with the chief technology officer of the MPAA, who posits that piracy is the consumer’s answer to not having standardized DRM. Some commentators, like those on ZDNet’s Hardware 2.0 blog, look to these comments as a sign of progress. We see it another way: that a chief technology officer of any organization would actually state such drivel on the record is virtually incomprehensible. But it’s a Big Content executive speaking; drivel is to be expected.

John Battelle’s Searchblog. A Brief Interview with EFF’s Fred von Lohmann on YouTube, Copyright, Google, and More. Oct. 10, 2006. We’re still unearthing good, residual GooTube coverage that we missed due to sheer volume. This article includes a good, straightforward explanation of the DMCA ISP safe harbor provisions that are codified in Section 512. What becomes apparent in reading this article is Von Lohmann understands the core technologies and plausible uses that are at the heart of so many current copyright battles. We firmly believe that if you do not understand the technology and its current and prospective uses, there is virtually no way you can run a technology business. Further, there is no way you can write laws that affect the technology. Clearly, Big Content and Congress consistently have failed to learn these fundamental lessons.

BitPlayer. Tower Records, iTunes and Napster. Oct. 11, 2006. The L.A. Times‘ entertainment blog discusses the demise of Tower Records, which went into liquidation last week. (The Times’ Ann Powers also lends her pen to the store’s closing.) Most interesting is this last paragraph: “It’s a shame the labels, artists and music publishers have failed to make everything available for sale, and that they (and Apple) have resisted the idea of cheap, bulk sales of older material. The urge to dive deep into an artist’s work is what separates a casual listener — the kind who’s satisfied by the selection at Wal-Mart and Best Buy — from a real music fan. The latter were the Tower Records shoppers of yore, and they are the lifeblood of the industry today. They need to be indulged.” Can we get an “Amen”?

Clippings

• Trudi Bellardo Hahn. Impacts of Mass Digitization Projects on Libraries and Information Policy. ASIS&T Bulletin. October/November 2006. After reading this article, please remind us again: why isn’t copyright a mandatory course in library science masters’ programs?
• Pete Wells. New Era of the Recipe Burglar. Food & Wine. November 2006. After the fashion industry whined about needing federal legislation to protect their designs, and after Dianne von Furstenburg’s asinine comments about copyright [QoTW, Sept. 11, 2006], it is only natural that we’d have to tolerate copyright issues spilling over into the kitchen.
• Brad Stone. The End of Free Trade? Newsweek. Oct. 20, 2006. Details YouTube’s “acoustic fingerprinting” technology, which will be used to monitor copyrighted works owned by Big Music.
• Jason Epstein. Books@Google. The New York Review of Books. Oct. 19, 2006. This is a good summary of the current books that discuss Google’s Book Search project. You can read an even more insightful analysis of this trend at if:book, Google and the Future of Print.
• Open Source blog. What Do Apple’s Earnings Say About Open Source? Oct. 19, 2006. Outstanding article about Apple’s cool factor and service overshadowing it’s proprietary operating system and DRM-laden iPod.
• Anthony Ross Sorkin and Stephen Leeds. Music Companies Grab a Share of the YouTube Sale. The New York Times. Oct. 18, 2006. Big Music gets to wet its beak a little. The Mob would call this “tribute.”
• Rebecca Knight. Microsoft In Digital Book Deal. FT.com. Oct. 18, 2006. This announcement is noteworthy because some of our editors, along with Jill Hurst-Wahl over at Digitization 101, have seen the Kirtas machines in action. The top-end machines — which we presume Microsoft will use — are rather expensive, but seem to be advanced enough technologically that they can handle the sort of volume Microsoft’s digitization efforts will endgender.
• Rich Frankel. Copyright to Public Domain: A Battle Cry. Blogcritics.org. Oct. 18, 2006. A Philadelphia lawyer rants about our current copyright system.
• Graeme Philipson. The Coming Digital Showdown. smh.com.au. Oct. 17, 2006. The online version of Australia’s Sydney Morning Herald addresses the problems with copyright in the digital environment this way: “As for the concept of copyright, I have written many times in this column about its inevitable demise. It is an atomic concept in a networked world.”
• Michael Geist. Why YouTube Won’t Be Napster Redux. Toronto Star. Oct. 16, 2006. Geist compares YouTube with Napster, and explains YouTube likely won’t suffer the same denouement.
• Stefanie Olsen. Wikipedia Co-Founder Plans Expert Spinoff. News.com. Oct. 16, 2006. Larry Sanger plans to launch Citizendium as a Wikipedia alternative, one that features “experts.” We want to know how one qualifies to be an “expert.”
• Between the Lines. DMCA Should Scare Us All. Oct. 14, 2006; ZDNet Education. DMCA Threatens Academic Freedom. Oct. 14, 2006. If you’re a regular CopyCense reader, there is nothing new here, but both articles point to a swelling popular discontent with the directions in which copyright law has leaned recently. Maybe Geist’s prediction that copyright will follow environmental issues as one of the next big political issues will actually come true. If so, look to articles such as these as the beginning of this movement.
• PublicEye. Why You’re Not Seeing Video Of Cory Lidle Playing Baseball. Oct. 12, 2006. Even Black Rock cannot use sports footage in its coverage of news stories because of contract terms and cost. This is evidence of a copyright system gone haywire.
• Inside Higher Ed. Opening Up Online Learning. Oct. 9, 2006. Earlier this month at at the Educause meeting, three dozen academic publishers, LMS providers, and other vendors agreed on an open standard that will make it possible to move digital content into and out of widely divergent online education systems without expensive and time consuming reengineering. Anyone who regularly deals with learning management systems realizes Common Cartridge is a welcome development in academia.
• Chris Morris. The Music’s Over for Tower Records. WashingtonPost.com (via Reuters). Oct. 9, 2006. It seems a lot of New York City icons are biting the dust. First we heard about Coliseum Books. Next, it was CBGB. Now, Tower Records finally bites the dust. True, Tower has been teetering on the edge for quite a while, but it’s still a little shocking to us. Goodness, what’s next, The Strand?
• Madisonian.net. Taking Back Educational Fair Use. Oct. 8, 2006. Loyola law professor Brett Frischman posits some interesting points about why academia increasingly is unable to use the fair use defense, but we think his analysis is way too academic. One important omission with Frischman’s preliminary thought is that it does not take into account the presence (predominance?) of the license, and its effect in eliminating exceptions that are available under the Copyright Act. We plan to publish on this rather soon, but suffice it to say now that in a digital environment, copyright is dead, and the license is the law of the land.
• Tank McNamara. Oct. 7, 2006. The popular comic addresses copyright within the sporting context.

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