Weeks Pages/Week10

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Music and IP Rights

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 networks 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: Bob Dylan, Masters of War - this is considered Bob Dylan's greatest protest song.

Greil Marcus, "Stories of a Bad Song" - the piece that prompted Prof. Nesson's incorporation of the Dylan song.

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: Reprise on Modern Liberty plus Workshop on Podcasts

Guests: None

Listening: Richard Parker on Fried's Modern Liberty and Class Podcasts

Assignments: Make a Favorites Class Podcasts Playlist

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.

Mark Morril is the vice president and deputy general counsel of Viacom. He is quoted in this Columbia Law School bio about his views on copyright law in the digital age.

Lecture Notes

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

Lecture Videos

The lectures for this week are on Monday, Nov. 6th at 1:15pm and Tuesday, Nov. 7th at 1:15pm. Both will be taped. They will be available here in QuickTime format approximately 24 hours after they occur.

Monday 11/13/06 (watch first)

Monday 11/13/06 (watch next)

Tuesday 11/14/06 (watch first)

Tuesday 11/14/06 (watch next)


Get the Videos Delivered (or if you have trouble w/ playback)

  • Democracy Player is a free and open source video player/aggregator that will download and play back your class videos (sort of like a TiVo for your computer).
  • Mplayer is another free and open source video player with its own codecs for playing Real(tm) and Quicktime(tm) (as well as all the other common formats). Some people who have problems with Democracy Player can play the videos with mplayer.
  • VLC is another video player. It is, in my opinion (this being Dean), far easier to use than Mplayer.

Guest In-class Discussions

  • In class, we discussed the "Pig and the Pirate" metaphor where you really just want to beat the other person; referring to the side that wants it all for himself and the other side that wants to take. It is the form of argument against which Professor Nesson would set the empathic argument. Is there a place for such contrasting arguments?

More Openness in Music Copyrights

Argument For

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 and a computer. Similarly, those same individuals can bypass traditional methods of distribution by using the internet, such as 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. On the other end of the spectrum, They Might Be Giants is a band that embraced a digital approach after achieving notoriety. They offer their albums on their website in unencumbered formats, such as FLAC and MP3. In total, they have released 11 studio albums, 6 live albums, and 25 EPs and singles, and have collaborated on various other projects.

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 may be 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. Creative Commons licenses also allow artists to reserve some of the rights in their creative works, while still allowing users to participate in certain creative uses of the works. There are a couple such examples of this, including The Freesound Project and ccMixter.

Part of the problem is that with new emerging technologies and more open networks, copyright owners, especially record labels, 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 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.

Counterargument

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.

While alternative means of reaching fans, such as internet distribution, have helped the market to notice previously obscure bands, it is very difficult to distribute music independently, while still earning a profit that can sustain a lifestyle. There are two significant reasons for this. First, as a new artist, albums are an extremely risky venture, requiring a significant initial outlay of capital and possessing a highly variable return. From this perspective, record labels serve as a risk spreader and a sieve. The labels help to filter out artists that aren't likely to make it, while spreading the risk of the brighter prospects over the group of artists as a whole. The second argument is just plain business organization. It takes significant infrastructure to sell music instead of giving it away, and the labels provide that. As an illustration of this point, it is worth noting that Clap Your Hands Say Yeah signed with Wichita Recordings after they got all of the attention.

With regard to DRM, one should note that DRM is in place to protect music from piracy. If we reduced piracy by, for example, shutting down music sharing sites in a more effective manner, DRM would no longer be as necessary, and perhaps competitive pressures would make it far less intrusive or even eliminate it altogether.

IP Public Policy Discussions

  • Yale Law Meme takes a progressive look at recent IP news and commentary.
  • Chilling Effects Clearinghouse, jointly sponsored by Harvard's Berkman Center, the Law Schools of Stanford, Berkeley, and USF, and the Electronic Frontier Foundation, "empowers Internet users with detailed information about their rights in the online environment," including updates on IP law, helpful resources, and links to recent cease and desist letters against their site.
  • Digital Millenium Copyright Act index produced by the Digital Future Coalition.
  • DigitalConsumer.org aims to protect fair use rights in the digital world.
  • Howard's Information Commons Links lists IP-related projects, proposals, links, papers, and talks, compiled by Howard Besser.
  • Public Knowledge is a Washington DC based advocacy group working to defend your rights in the emerging digital culture.
  • The Trademark Blog, maintained by the Schwimmer Mitchell Law Firm, a micro-boutique practicing trademark, copyright, and domain name law.
  • EDUCAUSE is a nonprofit association whose mission is to advance higher education by promoting the intelligent use of information technology, including extensive DMCA page.
  • National Writers Union is the trade union for freelance and contract writers: journalists, book authors, business and technical writers, web content providers, and poets. The website provides copyright and publishing advice, as well as recent news, local chapter information, and a job hotline, among other services.

Suggested Further Readings

  • RIAA on Piracy
  • MPAA on Piracy
  • IFPI: Group affiliated with the RIAA - group representing the recording industry worldwide with over 1450 members in 75 countries. The group is dedicated to "[f]ighting music piracy," "[p]romoting fair market access and adequate copyright laws," and "[h]helping develop the legal conditions and the technologies for the recording industry to prosper in the digital era."
  • Electronic Frontier Foundation - EFF Information on Fair Use and DRM Technology.
  • Music Law - an online source explaining the legal side of the music industry.
  • Salon.com - an article involving a conversation with Courtney Love discussing copyright in music.
  • Rawk Blog - includes an interesting discussion of the effect of illegal downloading on the indie-rock community.
  • MySpace - While this not a reading, it is another device that people have used over time to share music. Initially, MySpace started as a file-sharing tool. With the boom of the site as a social-networking tool, you can still see the strong influence of music sharing in its embedded music players and prevalence of bands that maintain sites to stream audio to interested fans. For a look at one person's attempt to fight the crackdown on music piracy in myspace, click here.
  • RIAA on the Cost of a CD - this is interesting to note for its breakdown of the perceived costs under the traditional system of development.
  • EFF on IP - EFF advocates a more open view toward copyright and intellectual property, especially for the rights of artists to have the channels open to distribute freely if they choose to do so.
  • Microsoft's War Waged with FairUse4WM - an article discussing the legal aspects of Microsoft's fight against hackers that produced FairUse4WM, a technology that can remove DRM measures from protected media and software.
  • The National Law Journal article - an article about music piracy defendants fighting back.
  • Piracy in China - an article in the Berkeley Technology Law Journal about the future of music and film piracy in China.

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?

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

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File Sharing Programs

Government Services

Discussion

More to come. See lecture dicussions above.

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