Music Industry Updates

The music industry generated some news while was hobbling.

The RIAA announced that it is dropping its campaign of mass lawsuits.  The RIAA has filed copyright infringement lawsuits against over 35,000 people in the past five years for allegedly pirating copyrighted songs, a fact most college students know well.   Most suits were settled for between $3,000-$5,000, a significant sum for many of those sued but I would be surprised if the RIAA netted much money for its members after the cost of filing and administering the lawsuits.  The suits may have deterred some individuals from pirating copyrighted music–e.g., a lawyer-turned-college-professor with financial assets and a professional reputation to protect–but did not put a dent in the amount of piracy.  The RIAA’s new strategy is to enlist the support of ISPs who agree to tighten the screws on users the RIAA identifies as distributors of copyright-protected files.  Cooperating ISPs will forward RIAA-generated cease-and-desist letters to their offending users.  If a targeted continues to make copyrighted songs available for downloading “they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.” (Sarah McBride and Ethan Smith, “Music Industry to Abandon Mass Suits,”  The Wall Street Journal, 19-Dec-08)  The RIAA is not dropping pending lawsuits and may continue to sue high-volume individual file-sharers.  The WSJ’s law blog speculates the RIAA’s problematic lawsuit against Jammie Thomas was central to its change of strategy.  That’s the case in which the jury awarded the RIAA over $220,000 in damages for Thomas’s piracy, and the trial judge decided a few months later than his instructions to the jury were wrong.  He had told the jury that making copyright-protected songs available in a shared folder constituted copyright infringement.  He reconsidered his instructions after other court rulings undermined the “making available” theory, holding that the RIAA must prove  copyright protected songs were actually copied to establish copyright infringement.

Involving ISPs in an enforcement role is potentially quite effective, if enough ISPs join the effort.  A former student articulated this very concept in 2002.  After graduation he developed monitoring software and a business plan to implement the concept and wooed the RIAA and ISPs to its merits, without success.  He was a half-decade ahead of his time. Alert readers will note that the RIAA’s ISP initiative targets distributors, not downloaders; it appears that free-riders–those who take without giving–will continue to fly under RIAA radar.

Yesterday Apple announced two significant changes in the iTunes st0re, multi-tier pricing and DRM-free music.  The record labels have wanted iTunes to drop the flat $.99/song price model in favor of pricing that reflects a song’s popularity.  Now iTunes will sell songs for $.69, $.99, or $1.29; in exchange the record labels agreed that songs sold on iTunes will be free of digital rights management limits on copying and use on multiple computers.  These changes bring  iTunes in line with the Amazon’s MP3 store.

Advice for summer associates

Suffolk University Law School is offering through iTunes U a 20-part podcast series titled “Transitioning from One-L to Summer Legal Work.” Those podcasts I’ve listened to are worthwhile for those law students trying to understand what it means to practice law, especially if they have not worked in a professional or office environment. Kudos to SUSL–and why do neither Boston University or the BU School of Management have offerings on iTunes U?

Apple Apostasy

A month ago the media was filled with stories about the New Jersey teenager who hacked the iPhone to work on cell carriers other than AT&T. Not one of the dozen or so articles I read then addressed the most obvious questions: Won’t this hack invalidate the iPhone’s warranty? Isn’t this hack vulnerable to an Apple counter-hack? Doesn’t it violate the DMCA’s anti-circumvention provisions? Last week, after Apple issued a software update that turned hacked iPhones into $400 paperweights, the media was filled with headlines such as this from the New York Times: Altered iPhones Freeze Up

Duh. Without reading the iPhone’s Terms of Use I know that Apple’s contract specifically prohibits the carrier-switch hack and disclaims liability for user installation of non-approved software on the iPhone. I know because such provisions are boilerplate in retail tech products licenses and contracts and Apple is as PC–programatically correct–as any tech company. Exhibit 1 is iTunes, which is easy and intuitive and countenances almost no user modification of how it chooses to organize your music on your hard drive. Which makes statements like this from an editor of Gizmodo just silly: “[Disabling a phone] instead of just relocking it . . . is going way too far; I’d call it uncharacteristically evil.” Irritating, annoying, consumer-unfriendly, reason not to buy another Apple product, maybe, but since when does naked pursuit of economic self-interest upset techies? Maybe this is a corollary of last week’s a liberal is a conservative who has been arrested: “a consumer advocate is a techie whose hacked iPhone has been bricked.”

Faux Ingenue

What a juxtaposition. The topic today in Internet law is The Way it Was, a look back at that techno-utopian era when people gushed about how the Internet was borderless, outside the reach of and even incomprehensible to sovereign nations, and the vehicle for a “civilization of the Mind” in the words of John Perry Barlow. Such quaint continues to influence discussions of Internet governance and wild, untamed corners of cyberspace still exist but the mainstream Internet–an incomprehensible pairing of words a decade ago–can be readily coopted in ways that make old-timers weep.

A case in point is exposed in a today’s Wall Street Journal article titled Download This: YouTube Phenom Has a Big Secret (subscription required). The phenom is Marie Digby, “[a] 24-year old singer and guitarist . . . hailed as proof that the Internet is transforming the world of entertainment.” The Journal reports that while Digby presents herself as a simple girl who posted on YouTube home-made videos of herself playing the guitar and singing in her bedroom–videos that have been viewed more than 2.3 million times–“Hollywood Records signed Ms. Digby in 2005, 18 months before she became a YouTube phenomenon. Hollywood Records helped devise her Internet strategy, consulted with her on the type of songs she chose to post, and distributed a high-quality studio recording . . . to iTunes and radio stations.” According to the article Digby has “feign[ed] amateur status” with misleading blog postings on her MySpace page and comments in public appearances that belie her backing by a record label. The article contains this telling statement: “Ms. Digby says she doesn’t mention her record label on her Web sites because ‘I didn’t feel like it was something that was going to make people like me.'” That’s true. It’s hard to market a product with an unpleasant aftertaste.

The more things change . . .

E-Commerce Top Ten

The Software Information and Industry Association (SIIA) announced the Ten Most Significant eCommerce Developments of the Past Decade. They are:

  1. Google (Sept. 1998)
  2. Broadband Penetration of US Internet Users Reaches 50% (June 2004)
  3. eBay Auctions (Launched Sept. 1997)
  4. Amazon.com (IPO May 1997)
  5. Google Ad Words (2000)
  6. Open Standards (HTML 4.0 released – 1997)
  7. Wi-Fi (802.11 launched – 1997)
  8. User-Generated Content (YouTube 2005)
  9. iTunes (2001)
  10. BlackBerry (1999)

I’ve used, utilized, or relied on all in the past month, so I can’t argue much with the list. (At first glance I omitted Blackberry from this statement until I remembered that Randy did Google searches on his Blackberry to settle disputes during the bike trip.) What I’d like to see at #11: standardized spelling for eCommerce e-Commerce E-Commerce.

Do As I Say, Not As I Do

A person’s sexual proclivities are a private matter and rarely relevant to his or her professional abilities–unless that person pushes his values on others and doesn’t practice what he preaches. That’s the position of Republican Louisiana Senator David Vitter, just the latest “clean-as-a-whistle champion of family values” to get caught with his hand in the . . . (let me rephrase that) . . . to have his phone number found in the D.C. Madame’s little black book. Vitter, who who “opposes radically redefining marriage, the most important social institution in human history,” acknowledged his call-girl relations as a “very serious sin in [his] past.” This is bad news for Rudy Giuliani–another born-again moral hypocrite–because Vitter was liaison to the south.

Next stop, pastoral counseling and rehab* for sex addiction? That’s what the playbook calls for.

*Three seconds after I typed this word iTunes cranked out Amy Winehouse’s Rehab. Spooky.

The 59th Street (Toll)Bridge Song

In the spring of 1967 Jimi Hendrix released Are You Experienced?, his first album, and The Beatles released Sgt. Pepper’s Lonely Hearts Club Band. My friend Rick bought Sgt. Pepper as soon as it was available and, incredibly excited by what he heard, called and played it for me over the telephone. I first heard “With a Little Help From My Friends”, “She’s Leaving Home,” and “A Day in the Life” on a spring afternoon while standing in my kitchen with a bakelite phone receiver pressed to my right ear. My first listening of Are You Experienced? came courtesy of another friend, who played it one Friday evening at full volume in his darkened bedroom. My hair stood on end at the opening chords of “Purple Haze.” I had never before heard music like that.

We experience music more immediately, more personally than any other form of popular culture. Movies and television required (until video-capable iPods and $1.99 episodes of Lost and The Office) that we sit and watch a screen. In my lifetime music has always been portable, first through car radios (my high-school car, a 1965 Plymouth Fury, had only AM radio which means I heard Mungo Jerry’s “In the Summertime” about 1,000 times in 1970 alone), then through the Sony Walkman and its progeny, which led to today’s ubiquitous MP3 players. Technology has allowed us to accompany our lives with a personal soundtrack. We all have music that is ours. 1967 was also the year of The Graduate,plastics,” and the birth of Dustin Hoffman’s career. I recall Dick Cavett asking Hoffman whether sudden fame had changed his life. Hoffman replied “It’s not like Mrs. Robinson plays when I go to the bathroom in the morning.” These days we can all have Mrs. Robinson–the Simon and Garfunkel original or the Lemonhead’s version–playing when we go to the bathroom in the morning.*

I’m thinking about this because of recent exposure to the inevitable boomer-retrospective articles and radio shows about the Summer of Love and the juxtaposition of two articles: Jason Fry’s “The Perils of Online Song Lyrics” in the 5/21 Wall Street Journal (subtitled “Yahoo’s New Lyrics Service Is Promising,But Why Can’t I Copy and Paste the Words?”) and Mark Helprin’s “A Great Idea Lives Forever. Shouldn’t Its Copyright?,” an op-ed piece in the 5/20 New York Times. Helprin argues that copyright law should protect creative works to the same extent that law generally protects rights in personal and real property. Congress can, Helprin asserts, circumvent (my word, not his) the Constitutional provision authorizing Congress to extend a monopoly to authors “for limited times,” by vitiating the meaning of “for limited times:” “Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw.” Helprin is a far-more skilled and practiced polemicist than me, but to my simple mind this expression of his argument falls off the rails before it leaves the station. In its entirety Article I, Section 8, Clause 8 of the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” Congress’s power to enact copyright law must serve the purpose of promoting the progress of useful arts. This argument (in Eldred v Ashcroft) failed to convince the Supreme Court to overturn the Sonny Bono Copyright Term Extension Act, which extended the term to the life of the author plus 70 years, but the Eldred decision does not support the position that Congress can extend the term of copyright at will. Larry Lessig is articulating a more complete and scholarly refutation of Helprin’s argument.

The article about the Yahoo lyrics site explores the confluence of our appropriation of popular music for personal expression and the “propertization” of copyright. As Fry states “[s]ong lyrics are one of those things the Internet might have been made for . . .” Most of use have searched for song lyrics. The Archive of Misheard Lyrics at www.kissthisguy.com is a favorite site. Song lyrics are part of our aural wallpaper, a cultural touchstone, a form of shorthand, titles for the chapters of our lives (I’m in one titled “well . . . how did I get here?“), the raw material for wedding vows, and memory triggers. We hear a phrase in conversation that reminds us of a lyric that transports us to the time in our life associated with that song. (If reading that made you think of Patrick Swayze and Jennifer Grey, good.) Song lyrics are all that but, at the request of copyright holders, you can’t copy and paste lyrics from Yahoo!’s lyric site. According to Nicholas Firth, Chairman and CEO of BMG Music, Inc., a copied lyric is a lost sale–an idiotic comment that ignores the reality in which most of us live. If the choice is between paying a licensing fee to copy a lyric into a blog post and going without I’ll go without. Most people would say the same, even people old enough to remember Mungo Jerry’s “In the Summertime” who did not grow up with file-sharing. I won’t pay the copyright holder a trespassing fee to walk in my own memories.

* It must have been kismet that caused iTunes shuffle to play the S&G version of Mrs. Robinson as I was writing this paragraph.

PS: A student sent me the link to this video a few days ago. Titled “A Fair(y) Use Tale” it summarizes principles of copyright law using clips from Disney animations. Cute, obsessive, and worth a look, if just to wonder: how long did it take to put this together?

iTunes Fix

Before my trip I wrote about problems I was having with iTunes on my Windows XP system. Helpful reader comments and suggestions put my on the path to a cure. I (a) uninstalled iTunes, (b) uninstalled Quicktime, (c) reinstalled iTunes and Quicktime (I found no stand-alone iTunes installer), (d) uninstalled Quicktime, and (e) reinstalled Quicktime using the stand-alone installer. (I can’t believe I did all of that without throwing the CPU out the window, but I did.) Then I left for a week. The trip had nothing to do with the fix, but I did forget about the problem. Upon returning I synced my iPod and, for the first time in a month, it synced properly. I was afraid to play iTunes for almost a week because I couldn’t face it hanging again, but yesterday, crazy risk taker that I am, I opened iTunes, pushed play, and . . . it played. No problems yet. Sincere thanks to those who helped.

Music Mishegas

It started last week. I synced my iPod and noticed that a half-dozen podcasts failed to transfer from the hard drive. Around the same time iTunes started to crash without apparent cause: when I double-clicked on iTunes playlists, when I played music from the iTunes library, when I updated podcast subscriptions from the iTunes window. Within a few days iTunes would crash as soon as I played anything. I uninstalled and reinstalled iTunes three or four times (I lost count, it was so much fun). No change. I Googled “iTunes crashes windows XP” and “iTunes troubleshooting” and found a number of similar tales but no explanation or solution. I tried some of the suggested fixes–deleting the iTunes program folder, adding “.old” to the iTunes library program files–but nothing changed. I’ve updated and run my antivirus and antispyware programs and run Registry Mechanic three times in the past seven days. I’ve ignored the suggestion to reformat the hard drive and reinstall Windows XP, iTunes, and every piece of software, testing after each to identify the culprit. If it comes to that I’ll throw the computer out the window to have the satisfaction of hearing it shatter, and buy a new one.

Now it gets weirder. I wanted something to play music files and installed Winamp. I also installed Anapod Manager to manage the music library and iPod files. The first few times I played music on Winamp it worked fine. I don’t like the cluttered, busy, teeny-weeny interface but it worked. Until it didn’t. Last night, clicking on a file to play it, Winamp crashed. It crashed three more times, just to make sure I got the point: your music files are screwed up. The questions are why?, and how do I fix the problem?

Maybe I should dust off the turntable and pull the albums out of the basement.