Run with the Law

AN ENDURANCE RUNNER’S PERSPECTIVE ON LEGAL NEWS AND EVENTS

Archive for category Copyright

How to Save Journalism?

Dec 10

Posted by GregSJ in Copyright, Google, Internet, Journalism

Yesterday I attended the IP and the Internet conference put on by the Intellectual Property Law section of the California Bar.  While there were many good presentations at the conference, perhaps the one that sparked the most discussion was Bruce Brown’s presentation “Using IP to Preserve Journalism in the Online World”.

One of the main themes of the discussion was on changing the law to protect hot news misappropriation.  As the discussion progressed it became clear to me that the focus was on protecting the business model by changing the law rather than trying to see how the business model could adjust to the technology and potentially regain profitability without changing the law.  In my opinion, changing the law should always be a last resort which is only attempted after all other business models have failed.

During the conversation I conceived a business plan which I believe has potential to increase online revenue for newspapers.  I would like to see the journalism industry try this and other ideas before lobbying to change any laws.

My plan:

Assuming search engines derive value from linking to “hot news” newspaper stories, publications will be able to incentive licensing by editing their robots.txt files according to a hot news standard.

For example, if the Chicago Tribune writes a story on hot news and marks it as un-indexable in the robots.txt file for 6 hours (at the end of which it is no longer hot news and the Tribune edits the robots.txt file to allow for indexing.)  Since search engines derive revenue from directing users to hot news (rather than users browsing directly to newspaper sites) search engines ought to be willing to pay for a license to index the content.  If the stories have commercial value this should be a win-win.

An obvious problem is that hot news travels extremely quickly online and the Boston Herald could easily undercut the Tribune’s leverage by quickly writing a similar article and not forbidding indexing.  Thus the Herald would receive most of the traffic that would have gone to the Tribune from the search engine and the search engines would continue to be a source to find hot news.

There are two potential solutions to this problem. If a highly desirable paper attempts this model and is able to license, than it will be against other newspapers financial interests to not use the same model (especially since we already know the current model isn’t working).  Conversely if search engines are unwilling to license to index so long as one paper does not implement this method then newspapers would need to collaborate to implement this business plan.  Such collaboration may or may not require an anti-trust exemption.

Either way I believe this model shows promise for generating more revenue for newspapers without rewriting IP law.

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Streaming won’t stop downloading because streaming is downloading

Dec 8

Posted by GregSJ in Copyright, Internet, Music

There has been a lot of news recently (for example see the articles at techdirt & the washington post) about a few studies suggesting that streaming has potential to stop illegal downloading of content online.   While the concept of legal streaming replacing illegal downloading is nice, it is naive to think that it is the answer to the record industry’s woes.  Streaming can’t stop downloading because streaming is downloading.

A basic understanding of how the internet works will demonstrate that this is true.  For anything online to be seen or heard a copy must be sent to the end users computer (or cell phone, ipod, tv, etc.).  Typically streaming works by sending the data sequentially such that the end user can begin to view or hear the content without waiting for the entire file to be sent.  This means that all a user needs to do to “download” a stream is ensure that the sequential parts of the file are saved rather than being thrown away automatically by your browser.  Don’t just take my word for it, Cory Doctorow of the Guardian agrees:

And of course, some streaming software throws away the bits after it finishes downloading them, rather than storing them on the hard-drive.
It’s this last part that has the technologically naive excited. They assume that because a downloading client can be designed in such a way that it doesn’t save the file, no “copy” is being made. They assume that this is the technical equivalent of “showing” someone a movie instead of “giving them a copy” of it.
But the reason some download clients discards the bits is because the programmer chose not to save them. Designing a competing client that doesn’t throw away the bits – one that “makes a copy” – is trivial.

And of course, some streaming software throws away the bits after it finishes downloading them, rather than storing them on the hard-drive.

It’s this last part that has the technologically naive excited. They assume that because a downloading client can be designed in such a way that it doesn’t save the file, no “copy” is being made. They assume that this is the technical equivalent of “showing” someone a movie instead of “giving them a copy” of it.

But the reason some download clients discards the bits is because the programmer chose not to save them. Designing a competing client that doesn’t throw away the bits – one that “makes a copy” – is trivial.

The point is that as much as streaming eliminates the demand for downloading, it actually makes it easier for downloading to occur.  Perhaps the decline in “downloading” is because people have discovered the ease of saving their streams and don’t need to “download” any more (there are a number of commercial products available for this purpose which I will not link to in fear of inducing copyright infringement).

The real surprising thing to me is that the record industry hasn’t already figured this out. For one it ignores the concept of music collection which Doctorow does a wonderful job of pointing out:

First of all, while streaming music from Last.fm is a great way to listen to music you haven’t discovered yet, there’s no reason to believe that people will lose the urge to collect music.

Indeed, the record industry seems to have forgotten the lesson of 70 years’ worth of radio: people who hear songs they like often go on to acquire those songs for their personal collections. It’s amazing to hear record industry executives deny that this will be the case, especially given that this was the dominant sales strategy for their industry for most of a century. Collecting is easier than it has ever been: you can store more music in less space and organise it more readily than ever before.

Second, cable companies have already figured this out and are trying to lock down your tv so that you can not record the digital cable that streams there. Google (or bing) Selectable Output Control (SOC) and see what comes up.

The end result? I believe streaming will lead to one of two things: more drm (which hasn’t worked so far) or realization that a drm free subscription downloadable system  may be a viable business plan for the record industry moving forward. It won’t make as much money as it did, but it is more than nothing and digital distribution is extremely cheap.

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Jason Mraz is Pro Bootlegging

Oct 15

Posted by GregSJ in Copyright, Internet, Music

Friday night Amy and I went to the Jason Mraz show at the Greek Theatre.  My favorite part of the show was when he played a Led Zeppelin/ZZ Top-esque version of Norm Greenbaum’s Spirit in the Sky.

After the show, I ran a quick iTunes search for the song.  Unfortunately and unsurprisingly I came up with nothing.  So instead of giving up I turned to the “dark side” of the internet.  To my surprise/delight I found that not only was a version available for download, but Jason Mraz has given explicit permission for fans to record live shows.

Jason Mraz allows audio taping at almost every live performance. We feel that each show is unique and want to offer our fans the opportunity to recreate the live experience through the audio reproduction of our shows. At all taping authorized performances, tapers can tape from any ticketed seating location in the venue. Also, for many of these performances tapers are able to purchase tickets for a specially designated taper section, normally located immediately behind the soundboard… From time to time we may record some of our shows for a live album or DVD, and we may not allow taping at those shows or we may notify you that we are going to commercially release our tapes from the show at which time we will ask you to withdraw all of your tapes from that show(s) from further trading.

How refreshing!  An artist who actually understands that fan recordings of live shows are not competition for recorded studio albums.

An interesting copyright tidbit at the end of his taping policy

No waiver of any copyright or trademark right is intended.

Since copyright only exists after fixation it is arguable whether any artist has any copyright claim against bootleggers.  However since Jason Mraz has authorized fan fixation he may have a copyright claim in every live show.  In other words explicitly authorizing taping of the show may give Jason Mraz a copyright claim for live performances he otherwise would not have had.

Coming Tomorrow Part II: Is Jason Mraz inducing copyright infringement?

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EMI Grooveshark Update

Oct 14

Posted by GregSJ in Copyright, Infringement, Internet, Music

Some of you may remember the EMI v. Grooveshark from my earlier post EMI sues Grooveshark, but what about the songwriters? Big news today is that Grooveshark and EMI have come to a licensing agreement thereby ending the lawsuit

Quick thoughts: Should EMI face sanctions for filing an infringement lawsuit merely as a means of furthering it’s licensing negotiations? Or should it be rewarded for keeping the lawsuit out of court and settling?

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Should Songwriters want to get paid for 30 second previews?

Sep 18

Posted by GregSJ in Copyright, Fair Use, Music

A recent article at Ars Technica alerted me to the news that songwriters want to get paid a license fee for 30 second previews.  Since even the smallest sample requires a license this makes legal sense.  However there would seem to be a fair use argument as the preview could be considered not commercial (don’t get me started on why that shouldn’t be part of the standard but it is) and presumably leads to increased sales (thus not hurting the would be licensor.)

Since the preview should lead to increased sales, should songwriters be getting paid a license fee?  It seems to me that Amazon, Apple, and whoever else is offering 30 second previews should call songwriters’ bluffs here and pull all of the previews.  My assumption is that music sales would go down as people would only buy songs they already know they want and would be less likely to be extra songs on a whim.  Assuming this is correct the decrease in music sales would pressure the songwriters to give up on their license demands for previews.  Additionally record companies would supply pressure also as they would be losing money as well.

The songwriters demands appear to me to be a poorly thought out method of trying to increase their license for paid music downloads without renegotiating the license agreement.

Of course my whole theory could be rendered moot if people just find other (less legal) ways to preview songs (and continue to buy the same amount of music)

P.S. I found a great cartoon but don’t have $10 for the license fee. Check it out here

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Should Actors Be Paid for Unauthorized Youtube Uploads?

Sep 16

Posted by GregSJ in Contract, Copyright, Internet, Trademark


(This video appears to be authorized but is still awesome despite not being particularly relevant)

Rebecca Tushnet’s 43(b)log alerted me to an interesting copyright/trademark issue.  Apparently actors’ unions are requesting that advertising agencies either pay them for unauthorized YouTube uploads or send DMCA take down requests. The Joint Policy Committee on Broadcast Talent Relations has released a position that there are no fees associated with unauthorized uploads and advertising agencies are under no legal obligation to send take down notices.

Rebecca’s post notes that the law on whether actor’s individual rights are preempted by federal copyright law is currently split.  While I agree with Rebecca that this is a great topic for someone to right a law review note on, I don’t currently have the time.

Instead, I would argue that this should be covered by contract.  First, in this day and age (wow writing that makes me feel old) everyone should expect anything they do on video to be widely available on YouTube or elsewhere online.  Second, given that advertising agencies (and their clients) generally want their commercials to be viewed by as many people as possible, they have no incentive to issue take down notices for unauthorized uploads.  Since this should have been a foreseeable issue by the sides during contract negotiations, I would argue that the language of the contract should control.  If the contracts call for payment of fees for authorized YouTube uploads then it seems to me the advertising agencies are impliedly authorizing the uploads by their failure to police the copyright.

The implied authorization is equivalent to contributory infringement case. Contributory infringement liability requires knowledge and material contribution.  While the advertising agencies are the copyright holders they are also contributory infringing their own copyright.  Given the union’s demands for take down notices and/or fees the advertising agencies clearly have knowledge of the contributory infringement.  They also are materially contributing by failing to take action and benefiting from the infringement.  Since it appears the advertising agencies would be liable in a contributory infringement suit, I believe they have impliedly authorized the uploads in question.

Given that actors have typically waived all copyright claims to the works in question, the unions should pursue a breach of contract claim for the fees (which is presumably what they would prefer over take down notices anyways).

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More Add-Value Ideas

Jun 30

Posted by GregSJ in Copyright, Music

Since I continue to put off the long post I have floating in my head about Helprin and perpetual copyright, I have been short on ideas for today’s post.  Thankfully there has been a deluge of articles on artists who have chosen interesting non-conventional ways to profit from their music.  Below is a collection of some of my favorites.

The Hold Steady – Vagrant records released their album with black and white comic books to entice record sales rather than downloads.

Sonic Youth – Buy their new album before release and you get a vinyl-only recording of the band’s NYC Fourth of July concert, a poster, early access to concert tickets, and online access to a collection of outtakes and B-sides.

Sunn O))) – Their new album Monoliths & Dimensions is available under a variety of different package deals.  Each one coming with different band merchandise.

Amanda Palmer – Made $19,000 in 10 hours selling tshirts and auctioning off stuff merchandise.  Amanda connected directly with her fans via twitter.

It is exciting to see that bands and labels are continuing to get beyond the copyright battle and instead are focusing on ways to profit despite potential infringement.

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The Rhetoric of Copyright Piracy

Jun 25

Posted by GregSJ in Copyright, Infringement, Intellectual Property, Music, Rhetoric

Yesterday I attended a program Leveraging Your JD in Today’s Economy put on by Santa Clara University School of Law.   At the program I reconnected with one of the presenters Shane Lunceford.  Shane remembered that I was an undergraduate Rhetoric major and recommended an article he and his brother Brett recently wrote for the Northwestern Journal of Technology and Intellectual Property.  The article, entitled Meh. The Irrelevance of Copyright in the Public Mind, considers how rhetoric affects the public perception of copyright law and how the music industry must change the discourse to gain public support and decrease infringement.

s5-1The article highlights an important part of law and society that is often over looked: without public support for a law the law will not be obeyed.  To demonstrate this point the authors describe a stretch of road in Las Vegas

it is not uncommon to see motorists on Maryland Parkway driving at 60 MPH suddenly drop their speed to 15 MPH once they enter a school zone … One part of this equation is legal—increased enforcement of the laws and stronger punishments. However, the more important reason for adherence to the speed limit in this instance is rhetorical—citizens needed a reason to believe in the law. Motorists believe in limiting speeds in school zones because they wish to avert tragedy and, more importantly, they believe that by obeying the speed limit they may realistically prevent accidents involving school children. Thus, they choose to obey one speed limit, while breaking the speed limit on either side of the school zone, despite the fact that the economic incentives are similar in each case.

The example and analysis clearly demonstrate the importance of public perception of a law on whether it is obeyed.  The article investigates this concept in light of copyright law in the music industry. Public perception of copyright law in music begins with the RIAA.  As has been repeatedly pointed out by IP enthusiasts the RIAA’s strategy of lawsuits has resulted in an extremely poor public perception problem.  The authors point out how the media’s framing of the lawsuits against roommates, students, and single parents has influenced the public’s view of the RIAA’s legal tactics.

The article goes on to suggest that

Editorial Cartoon, by Patrick Corrigan

Editorial Cartoon, by Patrick Corrigan

rather than attempting to change the law in order to change the citizen, perhaps it is time to begin looking at the citizen to see why he or she does not abide by the law. Citizens need reasons to obey laws that transcend fear of punishment; this is why the public conception of the music industry matters.

The authors point out a number of reasons why the public has not internalized copyright law.

  • Perceived low chance of being caught because “they can’t catch everyone”
  • View that content should be free
  • Perception that since time shifting in video is legal (Broadcast to VCR/DVR) than music should be too (Radio to Computer/MP3 Player)
  • Sense of identity with music to the point where it is a part of one’s identity (and therefore can’t be owned by someone else)
  • Confusion around copyright law and what is fair use

In my opinion one of the most important aspects of public perception of copyright is how the public is used to interacting with the content.  The authors describe how through radio music has been delivered to the public free of charge.  While people are used to paying money to go see a movie and even paying their cable bill to watch tv, radio has been allowing the public to listen to music for free since the early 1900s.  Furthermore between channel scanning and call in requests people are used to being able to hear the music they want to hear at any time.  Just as I have previously argued, the authors suggest that one way to overcome people’s accustom to getting music for free is to add-value.

The authors conclude by hypothesizing that for the music industry to succeed in its fight against piracy it must change the public’s perception of copyright law so that the reasons to obey the law are internalized.  To do so the authors propose that

Legislators and copyright holders must portray themselves as trustworthy. More specifically, the recording industry must appear to be treating artists and fans fairly, and legislators must appear to be acting in the public interest … copyright holders must make more compelling arguments concerning why the public should obey copyright law. If the people have a compelling narrative to follow, they will do so—whether it is true or not. The challenge, then, is not to craft better law; the challenge is to craft better rhetoric.

While there is no easy answer to the problem of piracy in the music industry, the article presents a great reminder that legal changes will not result in changes in public behavior.  Rather the music industry must focus on changing the public perception of copyright law through rhetorical discourse and add-value to purchasable copyrighted goods, to create the large change in public behavior they desire.

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Email to an Artist re: Jamie Thomas and KaZaA

Jun 19

Posted by GregSJ in Copyright, Infringement, Internet, Music, RIAA, Statutory Damages

trueAnthemscreenshot(As regular readers already know, I work part time for trueAnthem an online music distribution and viral marketing company.  Below is an email from one of trueAnthem’s artists and my response.)

Greg what is your stance on the RIAA suing people that do downloads on KAZAA and like services…. as I was logging in to yahoo saw this article featured … Yahoo Jamie Thomas Verdict

Suing individual consumers while sound legally is a stupid business strategy.  However it is not surprising given the old business model.   The people in charge of the RIAA and music labels got to their positions because of their knowledge of the music industry, contracts, distribution, and marketing.  As a result it is not surprising that they failed to understand the technology available and how to profit off of it.

From their standpoint the technology was something to fear.  Take a look at the recent writers’ and actors’ strikes and you will see how everybody is fighting over what the revenue distribution should be for digital downloads.  Because people don’t know what the digital pay model will look like they are afraid to create deals (they have no idea whether they are getting a good deal or a bad one.)  The alternative is to license content on a revenue share model rather than a royalty rate.  This would leave music labels and movie studios in the positions they have put their talent for years: relying on someone else’s honest accounting.  Given the rumors of bad accounting in the movie and music business it is not surprising that the revenue sharing model is not one that the studio executives jumped on quickly.

catch22Personally I believe the RIAA and record labels should have made licensing of catalogs extremely easy early on and thus allowed lots of different distribution models to be tested.  Had they done this, market theory suggests that the good ones would have succeeded and everyone would be in a better position than they are today. (Again I think studio executives expertise is partly to blame. As I said earlier their expertise was not technology.  As these models succeeded they would be replaced by executives who were both experts in technology and the music industry.  Thus even if they had been smart enough to have done this they would have been signing their own pink slips.  Considering this Catch-22 it is not surprising that they did not embrace the technology.)

Another reason why they did not adopt digital distribution early on was the fear of piracy.  The theory behind most early RIAA and studio attempts at digital distribution revolved around DRM (trying to assure that the music was not copied and distributed for free.)  One of the problems with this focus is that it mainly restricts legitimate uses by your customers while doing little to restrict those who are going to pirate music.  Video game companies are currently dealing with this as well and are beginning to realize that they will never be able to keep everyone from getting the game for free. Instead they are focusing on creating incentives to buy the game rather than get it for free (back to value added services.)

Had the music industry recognized this from the start I believe they could have discovered they were profiting despite the piracy.  A working paper by some people at Harvard Business school argues that they are still profiting despite piracy (and their own missteps.)  Ars Technica has written a good summary of the paper.

I think that some of this should have been obvious in the sense that the music industry has been profiting despite free distribution for a long time.  Radios have been playing music for free since the early 1900s.  Despite this free distribution, music labels have profited.  In fact I would argue that without this free distribution they would have profited much less because they would have had no easy vehicle to get people to listen to the music.  Very few people are going to buy music from a band they have never heard.

Getting back to KaZaA, I think that even with the reduced digital distribution market available it was not hurting music sales as much as record labels believe (I have an old post about other possible reasons for decline in music sales.)  I believe a majority of people are using the internet to discover the music people discovered on the radio in the past.  While some people will inevitably “steal” music they otherwise would have purchased, lots will buy music they otherwise would never have discovered.  I think the biggest thing digital distribution has done is create larger markets for niche bands.  In the past labels where limited in signing and distributing bands that catered to smaller niche markets because of the distribution costs.  The internet reduces this problem by aggregating people with similar music tastes (such that they can find bands that fit their niche more easily) and reducing the cost of distribution (less of a financial barrier to distribute the music in the first place.)

happy-gilmore-cheque-checkAs far as the Jamie Thomas $1.9 million dollar verdict I think it hurts the record labels as much if not more than it helps them.  From what I have read Jamie Thomas was the perfect person for them to go to trial against (other than her being a mom.)  While I believe the evidence linking a user to specific uploads is tenuous at best, the evidence against Jamie Thomas was strong: she did not have a wireless router, she replaced her hard drive after being notified of her infringement, she used her only internet username, she regularly locked her computer, she was caught lying numerous times…  She clearly deserved to lose the lawsuit.

That being said the RIAA is never going to see the $1.9 million dollars and all it does is make them look like even bigger bad guys because of the large amount of the award.  Nobody objectively thinks that $1.9 million is a fair penalty for her.  If the RIAA were smart it would settle with her today for $5-10k and announce how given the circumstances of a single mother of two they would rather not see the money then be at all responsible for financially ruining the family.  Then they need to bring up the artists whose songs she “stole” and give them each their share of the settlement.

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EMI sues Grooveshark, but what about the songwriters?

Jun 18

Posted by GregSJ in Copyright, Infringement, Internet, Music

groovesharkToday’s big IP headline not involving the Jamie Thomas trial is that EMI has sued Grooveshark. Grooveshark is an interactive online streaming music service.  Grooveshark’s motto is “play any song in the world for free.”

The focus is on how Grooveshark was in the midst of negotiations with EMI when EMI sued. While the articles I have seen correctly point out that this is not an usual negotiation ploy by labels (see Universal/Myspace and Imeem/Warner) none have mentioned the royalty rates Grooveshark must pay to songwriters and music publishers as an interactive music service.

My question isn’t why EMI is suing Grooveshark, but why hasn’t someone else done it already. The latest agreement approved by the copyright royalty board bases the rates on the licenses with record labels. Given that their is apparently no agreement with any of the major record labels, I find it unlikely the songwriters and music publishers were getting paid.

I imagine songwriters and music publishers are used to this as the 2006 agreement is still under appeal (and thus it is unlikely they have seen any money.)  Still given the amount of fighting over this latest agreement and the late payment provisions it seems like some litigious songwriter or music publisher would have wanted to set a precedent.

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