Weeks Pages/Week10

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Music and IP Rights


Page Designers:

John Lobato

Brett Talley

Nick Rose

Introduction

With the development of the internet and closed communications networks, the interaction of music and copyright law has puzzled many trying to find an adequate balance between freedom and restriction. At least since the 1980s, musicians and consumers alike have wondered whether the industry would benefit from a new rhetorical space where openness in copyright would allow for a more permissive copyright system.

From the Syllabus

Monday, Nov. 13: Getting Rights Right for Musicians: The Case for Giving Away your Property

Guests: Wayne Marshall and Mike Fricklas

Reading/Listening: TBD

Assignments: TBD

Using music as a case study we make the argument that most musicians stand to benefit, financially and otherwise, by openly sharing their music under a permissive rights system. At the same time we will look for balance in the legal rights which a creator may claim allowing for full choice with minimal coercion beyond the incentives of the new marketplace. We’ll look at the changes currently taking place in terms of music production and music consumption. We’ll also look at the rights systems available.

Tuesday, Nov. 14: TBD

Guests: None

Reading: None

Assignments: TBD

Guest Biographies

Wayne Marshall is "an ethnomusicologist by training, an MC/DJ/producer by calling, and a blogger by choice." You can read about him here and here. Check out his blog here. Note the reference to Professor Nesson's appearance on YouTube. After appearing in our class, Wayne will be at the Enormous Room with DJ C and DJ Flack and their distinguished guest, DJ Rugged One. The Enormous Room is at 567 Mass Ave. in Cambridge and the show is 10-1 with no cover.

Mike Fricklas is the general counsel of Viacom. His biography can be found here. He is quoted in this New York Times article about the lawsuits against Digital Video Recorders (DVRs) and ReplayTV.

Lecture Notes

Notes from class will be available shortly after each class is completed.

Argument Regarding More Openness in Music Copyrights

Overview

Although initially a counter-intuitive proposition, it is possible that copyright owners could benefit from opening up the traditional copyright system. Currently, the popular music industry is a very closed network with a few major players who determine accessibility to the public (e.g., Clear Channel Communications; Sony Music BMG). Additionally, traditional distribution methods have been similarly closed (a typical strategy of radio play and in-store sales with label supported touring). However, with the advent of open communications networks and the internet, the paradigm of both music production and distribution has changed substantially. Now individuals can produce their own musical works using nothing more than an idea, the instrument, and a computer. Similarly, those same individuals can bypass traditional methods of distribution by using the internet, through blogs and online-music sharing communities, to make their work available to the public. The indie-rock band Clap Your Hands Say Yeah is one example of the way in which copyright owners can use the new networks as distribution channels. Without label support, the band stirred up the interest of prominent music blogs (e.g., Pitchfork and Stereogum) and sold upwards of 200,000 copies of its debut album.

It is possible that a new manner of copyright, a step away from the traditional system, could hold the answer. Traditionally the copyrights to musical works are held tightly by artists or record labels and distribution of works would violate Section 106 of the Copyright Act. Recently, with the development of Creative Commons licenses, some artists have seen that a beneficial way to release music maybe be under a licensing system where all users can take their pieces of work, download them freely, use them as they like but always give attribution. There are a couple such example of this, including The Freesound Project and ccMixter.

Part of the problem is that with new emerging technologies and more open networks, copyright owners, record labels especially, have taken further steps to protect their interests. This has lead to the spawning of Digital Rights Management or DRM. DRM is an effort to protect copyright by placing technological restrictions on what the owner of a particular piece of music may do with it. Companies such as Microsoft and Apple have developed new DRM tools specifically for music purchased within online stores. In the physical world, record labels have also taken similar steps, as evidenced by the Sony DRM scandal that broke out in 2005. Consumer reaction to these technological efforts has generally been negative, as they may affect a broad range of what they may want to do with their music. Some restrict the number of copies one may make of a given work, whereas others will not allow purchasers to transfer music to other devices.

The relevant issue, however, is to examine how to tie in commercial success with the openness in copyright. First, it is not necessary to eliminate all copyright royalties in a Creative Commons manner in order to create more openness. It would be possible to simply eliminate the controlling nature of current DRM measures. This would allow purchasers of music to use the music in a variety of formats as new technologies emerge. Second, it would be possible to open the ownership to cover a greater variety of what people would do with music. For example, purchase of a given work could include the use of that work in a sample or mixed with other music in a mash-up.

On the other hand, there are economic arguments for maintaining strong copyright protections. Without strong copyright protection, the business model of music would be significantly different; indeed, it would perhaps no longer be a business model at all. Copyright creates incentives for parties to create and protect their work. It also creates incentives for record companies to take risks on distributing pieces of work widely throughout geographic regions and the rights to those copyrighted works will pay back those costs. In an extreme society with complete openness in music it would be difficult to see the role of record industries at all, because if music is open then there will be no charge for the pieces of work. That lack of an economic driving force may eliminate both the desire and the ability to produce great pieces of music. This is because, advocates would argue, there is a collective action problem that may occur. The lack of an economic driver may lead to the loss of development.

Suggested Further Readings

Organizations Fighting For More Openness

  • IP Justice is “an international civil liberties organization promoting balanced intellectual property laws in a digital world.” It is a non-profit organization that wants to build a world in which everyone’s rights are respected, including creators, distributors, and consumers. Read about its principles here. If you want to join, visit here.
  • Creative Commons is attempting to enable the legal sharing and reuse of cultural, educational, and scientific works. Some of the campaign for more openness is happening in Second Life. Read this article to find out how to get involved in Creative Commons and “free culture” events in Second Life. Creative Commons' base in Second Life is at Kula island.
  • Electronic Frontier Foundation sees itself as defending freedom in the digital world. It is “fighting for a constructive solution that gets artists paid while making file sharing legal.” It objects to the RIAA lawsuits, which it says generates no extra money for artists, instead just forcing Americans to pay lots of money to music and movie industry lawyers. You can sign a petition here to protest the RIAA’s actions to Congress.

Emerging Technologies

On November 14, Microsoft will introduce a new portable media player, called the Zune. This device will allow users to share music wirelessly between devices. The objective is to allow users to engage in a social community. Wireless sharing of songs will allow for three plays or three days of sharing. Does this adequately address the balance of copyright and openness? Is this the right balance?

http://www.slashdot.org Slashdot] posted an interesting article on how a key feature of Microsoft's new portable media player, Zune, may violate the now ubiqutous Creative Commons license, on which many wikis are based.

A Brief History Of Napster

The story of the music downloading program that started it all. Napster was the brainchild of a college student who was frustrated with his inability to find good music on the web and decided to take action. After many tireless hours, he developed Napster, still the best of the downloading programs, only to see his project become embroiled in lawsuits and controversy, and eventually shut down by the music industry. Read more here.

Relevant Music Copyright Cases

File Sharing Programs