COPYCENSE

This edition of CopyCense Clippings may well have been subtitled “State of the Music Nation.” This week, we have lots of features and commentary on music, from The Clash’s manager talking about the downfall of Big Music, to Jay-Z’s contemporary musical and executive version of big pimpin’. In between, we point you to stories on where your politicians fall on technology issues (just in time for midterm elections); Gannett’s attempt to flip the newsroom script; JPEG patent activity; and continuing coverage of the recently concluded Internet Governance Forum.

Articles of the Week

Andrew Orlowski. Big Labels Are F*cked, and DRM Is Dead — Peter Jenner. The Register. Nov. 3, 2006. The former manager for Pink Floyd and The Clash speaks bluntly about the state (and future) of Big Music. Compare Jenner’s assessment with our own assessment (below) of how Jay-Z is planning to keep his career in tact.

Declan McCullagh and Anne Broache. Technology Voter Guide. News.com. Nov. 2, 2006. Just in time for midterm elections, McCullagh and Broache provide a voter’s guide to Congressional records on technology issues, everything from DMCA and computer restrictions to H1-B visas. Unfortunately, the guide does not track Congressional response to the Net Neutrality debate, but for good reasons. This is yeoman work by two of the nation’s best technology reporters.

Ars Technica. Understanding the WIPO Broadcast Treaty. Oct. 30, 2006. Ars is always one of our favorite sources, and this history of the WIPO broadcast treaty shows why we love it so.

The Patry Copyright Blog. Surf Music, Hip-Hop, Race and Copyright. Oct. 29, 2006. Patry pulls us down memory lane by extending the New York Times’ coverage of the reissue of “Apache,” one of hip hop’s most beloved break beats.

Quotes of the Week

“There is not as much sympathy for … the entertainment business from Congress as there would be if it was more of a traditional business that was impacted. If the paper tomorrow said that Boeing had just announced that a whole series of major engineering drawings on a military plane, a B-1 bomber replacement, had been taken and they were on a Norwegian Web site, the whole place would go crazy. The fact that music’s being stolen and movies are being stolen doesn’t draw that kind of attention. It’s the same issue.” – Bob Wright, Chairman and Chief Executive Officer, NBC Universal.

— Reuters. Lawmakers Short on Sympathy for Piracy: NBC Chief. Oct. 26, 2006. So let’s get this straight: Bob Wright is whining that the so-called “war” on so-called “piracy” is not as important a Congressional priority as American men and women fighting and dying overseas. No matter what your position concerning the various “wars” American military personnel are involved in around the globe, we wretch whenever a Big Content executive equates the downfall of their industries with the gravity of armed conflict, and we are continually disgusted at Big Content’s hubris.

“I tour between albums. That’s 18,000 people last night, there may be 50,000 tomorrow. … Then when you get to a level of doing shows, the other rush is trying to beat the other show. You really just start trying to make epic joint after epic joint after epic joint. Once you hit arenas, it ain’t the same. … It costs a lot to make that show look effortless. You get to a point where, if you getting a $100,000, you put $10,000 into a show. Whatever you got to do to make the show look great. … In order to put on a good show you gotta spend. You get the LCD screens that are so bright and look like water. You gotta get the best sound and light guys. You gotta treat it like the rock guys treat it. It’s part of your craft. You gotta treat it like the studio, making the album. I got into the mindset that every aspect of my show has got to be the best. You gotta stay on par with your peers in the game. You don’t wanna go to a show and they’re just blowing you off the stage. That ain’t good for your career either. It’s all part of being a performer.” – Jay-Z, musician.

— XXLMag.com. Jay-Z: Countdown to Kingdom Come. Oct. 30, 2006. Forget the “CEO of Hip Hop,” which is what H-P calls him. Can we officially crown Jay-Z the King of Pop? His new album, Kingdom Come, is due to be released Nov. 21 and arguably is the biggest album release of the last five years. During a time when CD sales are declining, Jay-Z’s numbers may not suffer at all: it is conceivable that Kingdom Come could open with 750,000 units sold in the first week. (Remember, this is an artist whose album The Blueprint debuted at the top of the charts, selling more than 420,000 units in its first week even though it was released on Sept. 11, 2001.)

But more than anything else, Jay-Z seems to understand the music business better than most of his so-called executive peers. It’s not just that he has a keen eye for promotion. (Dale Earnhardt Jr. and Danica Patrick appearing in the first video for your newest single? Priceless.) Jay-Z understood about five years ago that the key to remaining relevant in the music business would center on being able to excel at performing live. The manifestation of this understanding was his collaboration with The Roots for MTV Unplugged. Since then, Jay-Z has become the biggest act in music because he has learned how to do a great live show.

Remember Dick Wolf’s quote about no one ever getting rich again in entertainment? (QoTW, Clippings v. 0.92) We think he meant that no one will get rich using the old model of studio-based production and centralized distribution. In music’s old business model, it was conceivable that a person could get rich strictly by staying in the studio, producing good songs, funneling them through the record companies and radio, and (by the 1990s) looking good on video.

But given the way computers and digital media have changed the way people create, and the disruptive way the Internet has changed distribution, this is now longer the case. Keep a single confidential? That will never happen again. An unreleased record? Virtually impossible. Create a new sound and a new beat? There’s a 12-year old kid in a bedroom right now that has been up all night tweaking Reason, producing beats you can’t begin to conceptualize.

But a great live performance is the one thing that digital media cannot replicate or replace. Even if digital media captures a great performance, ultimately the recorded event just makes you regret you weren’t there to see it unfold in person. We recall Bonnie Raitt once saying that the reason she makes albums is so she can have 12 new songs to perform when she goes out on the road. Jay-Z started understanding this five years ago. And like the former King of Pop, Michael Jackson, Jay-Z will stay on top as long as he can continue to put on an incomparable show. Hands up and wave.

Clippings

• Jeff Howe. Gannett to Crowdsource News. Wired News. Nov. 3, 2006. As one of the nation’s largest newspaper chains, Gannett decides to leverage its audience to make news more local. This is an interesting development coming from the creator of McPaper, but a bold — perhaps critically necessary — step toward improving journalism and helping newspapers survive.
• Ron Grover. HBO’s Bold Broadband Plans. BusinessWeekOnline.com. Nov. 2, 2006. Ever wonder why no one has seen episodes (or even tidbits) of The Wire on iTunes? Because the cable operators would go bananas. While we love that show, most of us cannot stomach paying more than $50 per month for that alone. We suspect that as the iPod generation matures, they’ll conclude the same thing, thereby jeopardizing HBO’s currently stable business model.
• SiliconValley.com (via The Associated Press). World Internet Conference Ends With Promise and Concerns. Nov. 2, 2006. This is the post-game report for the Internet Governance Forum, which recently concluded near Athens. (For the pre-game report, look to Ars Technica’s well-written summary, and still another strong article, which could serve as the halftime report.) Perhaps the biggest takeaway from this event is how it will affect the domain name system and ICANN‘s continued control over it.
• Matt Slagle. Forgent Settles JPEG Patent Case. Forbes.com (via The Associated Press). Nov. 2, 2006. One of the secrets about the digital world is that one of its major image formats (.JPEG) is not an open standard, but subject to a proprietary compression technology that is protected by U.S. Patent. No. 4,698,672. The patent’s owner, Forgent Technologies, quietly has been collecting millions of dollars in licensing revenue on this patent for several years. (Wired News has a 2002 story that explains the patent’s history.) This is one of the few cases that has made it into the public. What we cannot understand is why large technology companies have not supported an attempt to invalidate the patent, as they had in the NTP-Research In Motion matter.
• 27BStroke6. EFF Sues Sex Shamer, Says He Shut Down Critic With Fake Copyright Notices. Nov. 1, 2006. So the Electronic Frontier Foundation finds it essential to sue a person who is falsely filing Section 512 takedown notices. On the other hand, to our best knowledge, the organization has not gotten involved in helping defendants in Big Music file sharing lawsuits seek sanctions when the record lobby files sketchy complaints, or drops lawsuits with prejudice after conceding it hasn’t done the proper legwork before filing the claim. Release big sigh of exasperation here.
• Knowledge@Wharton. What’s Next for Netflix? Nov. 1, 2006. Conventional wisdom predicted Netflix would be dead three years ago. Instead, it has beaten Wal-Mart (Netflix swallowed its video business earlier this year), staved off Blockbuster, and recently beat Wall Street analyst estimates. Why? One reason is its distribution network is outstanding. Another reason, oddly, is that it hasn’t entered the video download business. Why get involved in the mess? Instead, let others hash out the hard part, then apply your distribution expertise to the final solution.
• BBC News. Copying Own CDs “Should Be Legal.” Nov. 1, 2006. This report (.pdf) is the first step toward a legislative allowance for home copying. Big Content is likely to invoke its strongest response for ensuring this issue is never even discussed in the United States.
• SiliconValley.com. ICANN Warns Mistake on Non-English Web Addresses Could Permanently Break Internet.” Nov. 1, 2006. Non-U.S. companies have been clamoring for a domain naming system that allows naming conventions beyond Latin-based characters. “Permanently break the Internet” seems awful dire. One would think that the collective intelligence within the organization would be able to keep that from every happening.
• Paul McDougall. How To Avoid The Patent Trap. InformationWeek. Oct. 30, 2006. Deeper perspective about the IBM-Amazon.com patent tiff, and its meaning within the broader context of U.S. patent reform. Also, see K. Matthew Dames’ analysis of IBM’s patent reform announcement in Information Today.
• BBC News. 50 Cent Copyright Claim Dismissed. Oct. 29, 2006. The infamous Fiddy can keep all his money.
• Grant Gross. Supreme Court To Review Microsoft Patent Case. PC World (via IDG News Service). Oct. 27, 2006. When titans collide: AT&T and Microsoft, in the U.S. Supreme Court, clashing swords over whether Microsoft is liable for patent infringement after it distributed an AT&T-patented technology on overseas copies of the Windows operating system. As we’ve asked several times before, can a Court that has shown itself to be quite out of touch with technology reasonably decide a technology case? We think not.
• CBC News. CDs Are Dead: Recording Company CEO. Oct. 27, 2006. It was a good run, fellas. You got another two decades of record revenue and profits effectively reselling the same material. Now it’s time to earn that fat paycheck.
• Creative Commons. CC Values. Oct. 25, 2006. Stanford law professor Lawrence Lessig discusses the “sharing economy.”

CopyCense™: Code & Content.™ A venture of Seso Group LLC.

Technorati Tags: CopyCense, CopyCense Clippings, copyright, DRM, K. Matthew Dames, licensing

Due to several other editorial commitments over the past seven days, we have an abbreviated version of CopyCense Clippings this week. We’ll return with a full version next Monday.

Clippings

• Katie Hafner. We’re Google. So Sue Us. The New York Times. Oct. 23, 2006. An inside look at Google’s legal department and a peek into its litigation philosophy.
• Mike Musgrove. A Messy Age for Music. WashingtonPost.com. Oct. 22, 2006. One of the nation’s most respected newspapers devotes a special Sunday section to copyright and downloading. Virtually none of the articles reveals anything new to regular CopyCense readers. What’s significant is that one of the nation’s most respected newspapers devotes a special Sunday section to copyright and downloading. (Make sure you read Rob Pegoraro’s brief history of recorded music.)
• Christopher Conkey. Libraries Beckon, But Stacks of Books Aren’t Part of Pitch. The Wall Street Journal. Oct. 21, 2006. This article outlines how libraries are transforming themselves into information centers on some college campuses. Unfortunately, this transformation still lags way behind the way information transfer has evolved, and the transformation has, by and large, failed to hit public libraries at all.
• Greg Sandoval. YouTube’s No Friend To Copyright Violators. News.com. Oct. 21, 2006. We’ve said this many times: always, always, always read a Web site’s terms (conditions) of use contract.
• Hardware 2.0. Controlling The Kernel — It’s All About DRM. Oct. 20, 2006. Adrian W. Kingsley-Hughes opines that Microsoft’s Vista DRM measures are about introducing a Windows-based media business model, not security.
• ArsTechnica. Boy Scouts Get MPAA-Approved Copyright Merit Badge. Oct. 20, 2005. Remember when Disney used an episode of The Proud Family to demonstrate to kids the evils of file sharing? This is merely an extension of that tactic. Since Big Content is comfortable that Congress is comfortably in check on the copyright front, they’ve turned their domestic attention to passing legislation and instituting related initiatives that influence a younger crowd at the state and local level. This is almost as bad as school districts cutting revenue deals with cola manufacturers.
• Alex Veiga. Universal Music Group Files Lawsuits Against Online Video Sites. MercuryNews.com. (via The Associated Press). Oct. 17, 2006. This could turn out to be a seminal case that, along with YouTube lawsuits, tests the boundaries of the DMCA.

CopyCense™: Code & Content.™ A venture of Seso Group LLC.

Technorati Tags: CopyCense, CopyCense Clippings, copyright, DRM, K. Matthew Dames, licensing

This week, we continue to tinker with the CopyCense Clippings format, which seems to be in interminable beta. One of the things we’ve been doing with Clippings since we introduced it in the summer is adding more original content and analysis. We settled on the Clippings format this summer because the sheer volume of news on code and content has become staggering. It used to be that only specialists covered this area; now mainstream publications are covering this area — and in many cases, summoning their considerable resources to break stories.

We rather like CopyCense Clippings format for two reasons. First, it allows us time to exercise greater editorial prudence in what we post. Second, and more important, by moving to a weekly publication schedule, we can put more energy into putting the news into a broader business, legal, and technological context. We believe our efforts in this area are worth moving our publication schedule from five times per week to weekly.

As we’ve developed Clippings, however, we’ve noticed something interesting: the length of our standard entries has grown. The original idea behind CopyCense Clippings was to distill the news from the prior week, provide citations, and write small summary entries. Bullet point display is perfect for this original idea.

Over the last few weeks, however, we’ve had much more to say about several of the entries. Unfortunately, bullet point format is decidedly inappropriate for this sort of writing. Therefore, effective this week, we are testing a new “CommuniK. Clippings” section. Beginning this week, we are experimenting with this new C&C section as a way of presenting editorial comment about news stories that are longer than what should be in the Clippings section, but not long enough to be included in our CommuniK. series, which is reserved for feature stories.

So, to summarize, CopyCense is experimenting with three lines of content:

• CopyCense Clippings: A brief listing of stories from the prior week;
• CommuniK. Clippings: A listing of stories from the prior week that includes commentary from K. Matthew Dames and other CopyCense contributors; and
• CommuniK.: Feature length articles from K. Matthew Dames that include in-depth commentary and analysis of issues that lie at the intersection of business, law, and technology.

Now, the final challenge we have is how to preserve our categorization scheme in light of this revamped format. Input from indexers, catalogers, classification specialists and other interested parties is highly welcome. Please let us know what you think about the new format and presentation.

And for the news? This week, we have a handful of entries about copyright implications of the GooTube merger; comments from Big Content executives, one of which seems to get it, another who seems lost; Vista and DRM complications, and of course, our Article of the Week (AoTW) and Quote of the Week (QoTW).

Article of the Week

Michael Geist. Parallel Federal Political World of Environment and Copyright. The Hill Times. Oct. 9, 2006. Geist posits copyright as the next big mainstream political issue in Canada. If only this were the case in the U.S.

Quote of the Week

“We understand now that piracy is a business model. It exists to serve a need in the market for consumers who want TV content on demand. Pirates compete the same way we do — through quality, price and availability. We don’t like the model but we realize it’s competitive enough to make it a major competitor going forward.” — Anne Sweeney, Co-Chair Disney Media Networks and President, Disney-ABC Television Group.

PaidContent.org. Mipcom: Piracy Is A Business Model, Says Disney Co-Chair Anne Sweeney. Oct. 10, 2006. When the “most powerful woman in entertainment” (Hollywood Reporter) makes such a keen observation, it is worth noting. We’ve known all along that the way to fight “piracy” — whatever that is — is to offer better product with more features. In other words, provide the consumer options that make him want to pay than to get it free. Now, the question is whether or not the Disney directors got this from Jobs, or whether it was something the board members discussed before he became a director.

CommuniK. Clippings

Ian Youngs. Technology “Can Beat Film Piracy.” BBC News. Oct. 13, 2006. There are some business executives that finally seem to understand the challenges their content businesses face (see QoTW, above). The U.K.’s film minister, however, is not among them. Technology is not the key to making money in the new digital content environment.

(Notice we did not say “technology is not the key to beating ‘piracy.'” See K. Matthew Dames’s September 2006 Information Today article “Framing the Copyright Debate” to understand why terms like “piracy” are industry doublespeak that rarely go unchallenged in CopyCense.)

The key to making money in the new digital content environment is by “handling your business,” as the kids say. And these days, a digital content company handles its business by recognizing traditional revenue streams are no longer reliable due to changed commercial conditions; identifying and exploiting new opportunities that are driven by social and technological change; and providing new value to customers that makes rampant reproduction irrelevant. After this analysis is done, then content companies may find out that their role is significantly reduced, and that many large companies and executives no longer have jobs. If this is the case, so be it. Nature calls this phenomenon evolution; businessmen call it the free market.

The Electric New Paper. Copyright Battles Likely Over YouTube. Oct. 12, 2006. What is interesting about this story is that it is published out of Singapore, yet still contains rather standard Western analysis of Google’s YouTube acquisition. There is, however, an interesting quote from an American lawyer concerning YouTube’s application of the ISP safe harbor provisions under the DMCA: “The problem is that the more [YouTube goes] into editorial control, the less they can rely on the DMCA to protect them.” We’d be interested in seeing a full analysis on this issue. (In a separate article out of Canada, Duke University law professor James Boyle says YouTube’s reliance on the safe harbor provision is an open legal question that the U.S. federal court system has yet to address.)

As a related aside, with each passing year it seems clear to us that the federal court system (and perhaps also the U.S. Copyright Office) is ill-equipped to address and resolve major copyright issues with alacrity. Said another way, the American copyright system continues to grind along at a 20th century pace while dealing with 21st century issues. It is interesting, then, that we’ve heard an outcry about overhauling the patent system (from the federal agencies that handle patent matters to judicial review of patent cases), but we’ve heard virtually nothing about overhauling this country’s copyright system in the same way. We feel such reform should be debated and considered, at a minimum.

Brenda Goodman. King Papers, Back in Atlanta, Will Be Placed on Display. The New York Times. Oct. 10, 2006. Wouldn’t this collection have been a boon for the students at Clark Atlanta University’s library school? The school could have made a name for itself in archives & preservation (possibly even digitization) working with this collection alone. Sadly, the School of Library & Information Science graduated its last class in June 2005, closing the last (and only) ALA-accredited LIS school in the state of Georgia.

Christopher S. Rugaber. Supreme Court Denies Zoloft Patent Case. chron.com (via Associated Press). Oct. 10, 2006. A generic drug maker does not get to argue whether patent holding, brand-name drug makers sometimes block generic drug makers from issuing new products by refusing to sue them for alleged patent infringement during the FDA approval process. The significance? “This refusal to sue can leave the status of patents unresolved and create uncertainty for a generic drug company, since the brand-name company could later sue for patent infringement once the generic firm begins manufacturing and selling the drug. This threat, in turn, can prevent generic companies from proceeding in the first place.” On its face, this is the sort of issue the allegedly business savvy Roberts court should have heard.

Clippings

• Kevin Tampone. Bull & Bear Pub Settles Karaoke Copyright Lawsuit. The Central New York Business Journal. No date. A downtown Syracuse pub agrees to securing an ASCAP license after it is sued for playing popular music during its karaoke night.
• Paul F. Roberts. Vista’s DRM Features Could Bedevil AV. InfoWorld. Oct. 13, 2006. A security researcher poses concerns that Microsoft’s planned DRM in the new Vista operating system could interfere with common desktop anti-virus program functionality. Remember, the Sony-BMG DRM rootkit scandal was brought to light by a well-intentioned security researcher.
• Alex Veiga. Anti-Piracy System Could Hurt YouTube. Forbes.com. (via Associated Press). Oct. 12, 2006. “Analysts said that stepped-up monitoring by entertainment companies raises the likelihood that YouTube fans won’t find what they’re used to getting — and will go searching for the next online video rebel.” Query this: how many analysts know copyright (or business, for that matter) well enough to reliably and credibly make this assessment? Perhaps weatherman is the only other occupation for which one can be paid so much to be so wrong so often.
• Laura Parker. Jury Awards $11.3M Over Defamatory Internet Posts. USA Today. Oct. 11, 2006. One thing we’re all for is increasing professional standards in blogging. If bloggers want the legal protections afforded to journalists, they have to begin to act at least a little more responsibly when it comes to publishing information.
• Dugie Standeford. EU Online Content Stakeholders Debate DRM’s Value For Copyright Protection. Intellectual Property Watch. Oct. 11, 2006. It is nice to see the European Union having this discussion. This is something the U.S. Copyright Office should address domestically.
• Kirk Makin. High Court Upholds Key Copyright Decision. globeandmail.com. Oct. 10, 2006. Canada’s highest court echoes the Tasini decision.
• Paul Meller. E.U. Patent Chief Hits Back at Criticism. ITworld.com (via IDG News Service). Oct. 10, 2006. Apparently, the U.S. Patent & Trademark Office is not the only patent office coming under fire. According to the story, a patent applicant must still apply for protection in all the European Union countries because the patent regime has not been consolidated to allow applications to cover all E.U. member countries.
• Ed Bott’s Microsoft Report. Vista Mythbusters #7: How Much DRM Is Too Much? Oct. 10, 2006. A behind-the-scenes, technical look at the Vista DRM measures Microsoft announced last week.
• James Morrissey. USTR Outlines Plans To Attack Piracy. Textile World. Oct. 10, 2006. Still more evidence of how the U.S. Trade Representative has become this country’s chief intellectual property legislator. Why haven’t we heard from Congress about this gross constitutional breach?
• SiliconValley.com. YouTube Cuts Deals With CBS, Universal Music Group, Sony BMG. Oct. 9, 2006. When $1.6 massive is on the table, one wouldn’t want a little thing like copyright infringement to get in the way of finalizing a transaction.
• Eric Auchard. Web Video Search Site Blinkx Signs Microsoft Pact. WashingtonPost.com. Oct. 9, 2006. This deal is not as sexy as the YouTube/Google pairing, but this story’s lead paragraph — “YouTube is a load of laughs. Finding something specific you want to watch is another matter” — is right on point.
• Robert Gellman. Government Should Use DRM Sparingly. GCN. Oct. 9, 2006. A privacy consultant discusses the possibility of DRM use by Uncle Sam within the context of DRM use by New Zealand’s government. Apparently, government sponsorship of DRM is gaining steam, since Canada is investigating whether to mandate DRM in order for music companies to sell online music.
• Randy Cohen. The Download On Copyright Wrongs at the Local Library. chron.com. Oct. 7, 2006. Siva Vaidhyanathan puts on his Carrie Russell cape and answers a library copyright question for the online version of the Houston Chronicle.
• Michael Robertson. Getting Zuned. Oct. 5, 2006. The founder of MP3.com discusses the other side of DRM: being at the mercy of content companies despite the price you paid to “own” content.
• Doc Searls Weblog. Newspapers 2.0. Oct. 5, 2006. Doc Searls breaks down the newspaper industry, as he broke down the radio industry a couple days before.
• The Patry Copyright Blog. The 109th Congress. Oct. 5, 2006. William Patry addresses the lack of enacted copyright legislation in the soon-to-be concluded Congress.
• Jonathan Zittrain. A Domain by Any Other Name. Comment Is Free … Oct. 4, 2006. An Oxford professor of internet governance and regulation goes inside ICANN, one of the least well-known and most influential organizations of the information economy.
• Yardena Arar. Sony: An E-Book Worth Reading. PC World. Oct. 1, 2006. Almost four large for the Sony Reader. At that price it had better make Sunday brunch. Also, see David Pogue’s more recent review in The New York Times.

CopyCense™: Code & Content.™ A venture of Seso Group LLC.

Technorati Tags: CopyCense, CopyCense Clippings, copyright, DRM, K. Matthew Dames, licensing