Music Industry Panel Debate

Next Tuesday, March 3, from 7:00-9:00 PM in the School of Management auditorium I am moderating a panel discussion–titled “What Lies Ahead”–on the future of the music industry. Audience Q & A will follow the moderated discussion.   For more information see the event website or the poster below.  Register for the event by joining the Facebook group.

what-lies-ahead

Qtrax: Oops

Someone commented recently about Qtrax, a recently-announced music file-sharing company that promised a free download service with 25 million licensed songs. There’s only one problem: as reported in Music site Qtrax forced into humiliating U-turn, the company neglected to secure deals with the four major record labels before its splashy $500,000 launch party. These folks would have felt right at home during the late-90s dot-com bubble.

The Sun Always Shines . . .

. . . when you are a summer associate. Last week I was comparing notes about our legal careers with an acquaintance. We met when we overlapped briefly at a large Boston firm–I was on my out the door to become general counsel with a real estate development company, he had just come in as a lateral from another Boston firm. He stayed for about five years, went into private practice, and is now very happy as general counsel for a travel-services company. Our reasons for leaving BigLaw were similarly family-driven. As he said “I got to see all of my kids’ school plays, coach their baseball and basketball teams, and be part of their lives.” I thought of this conversation and our mutual gimlet-eyed view of the BigLaw experience when I read this lead paragraph from Legal Blog Watch:

Summer associates gave their firms overall good reviews in The American Lawyer’s 2007 Summer Associates Survey, and why shouldn’t they? After all, what’s not to like? Some found exotic adventures abroad, with one traveling four-and-a-half hours by horseback across the Egyptian desert and another put up in a fancy apartment in Paris. Others were treated to skyboxes at baseball games, cooking classes, musicals, symphony concerts, whitewater rafting trips and scavenger hunts. In New York, there was Kobe beef and Picasso at the Museum of Modern Art, while in San Francisco there was helicoptering under the Golden Gate Bridge and debauchery at Half Moon Bay. All that and a paycheck of nearly $3,000 a week.

I’ll put it like this. None of our recollections of BigLaw life involved Paris apartments, camel rides, or helicopter rides below or above the Golden Gate Bridge. And the debauchery did not occur at Half Moon Bay.

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.”

Time to Change tactics?

The RIAA has brought thousands of copyright-infringement lawsuits for illegal music downloads in recent years. Nevertheless, as The Guardian reported on Monday, “illegal music downloading is at an all-time high and set to rise further” because “a growing band of consumers are unconcerned about being prosecuted for illegal downloads.” In the face of such abject failure of its current business model and enforcement tactics, how long before the recording industry shifts business models?

The Undead

Like Cool Hand Luke rising from the ground each time Dragline knocked him on his ass or like the living dead from the George Romero movies, Allofmp3.com refuses to submit, popping up after each execution with an amnesiac’s disregard for its back story. See None of MP3.com, AllofMP3.com Lives Yet, and AllofMP3.com–Is That All You’ve Got? This story reports that Russia caused the site to be shut down “to end criticism from the United States that Russia was failing to clamp down on music and video piracy.” By the time the press ran the story Media Services, the company behind AllofMP3.com, had opened a new site named mp3Sparks.com that it claims is legal under Russian law. Since the arguments for the new site’s legality echo those used to support Allofmp3.com we can expect this saga to continue. Frustrating, I’m sure, for parties on both sides of the issues but a boon to a professor of Internet law, this story captures the nailing-a-blob-of-mercury nature of cross-border Internet regulation.

And Wayne Newton as Secretary of State

Hillary Clinton’s campaign has attempted to whip up enthusiasm for its campaign-song contest, in which you–yes, you!–could select the lucky song. Her website announced the winner with a brief, mildly amusing video inspired by the last episode of The Sopranos (which I liked, by the way) and bearing a Sopranos in-joke: Vince Curatola, who played Johnny Sack, gets up from a diner stool and gives Hillary and Bill a funny look on his way to the bathroom. There is an amusing and telling scene in which Bill whines “no onion rings?” when confronted with Hillary’s order of carrot sticks. Is Hillary running as Sensible Mommy, the one who hands out boxes of raisins on Halloween? The video cuts to black and a link to the contest winner: You and I by Celine Dion.

Celine Dion? Bad choice, musically and symbolically. Not to get all chauvinistic, but the campaign knows that Celine is Canadian, right? Her soul–if we can use that word in discussing Celine Dion–is Las Vegas, a slice of American cheese topped with Miracle Whip, but her birth certificate says Charlemagne, Quebec, Canada. Couldn’t Hillary find a tune by an American pop songstress? Ugly Americanism aside, Celine Dion’s music is insipid and You and I is a yawner of yearning and treacly aspirational lyrics and generic rock.

Enjoy the carrot sticks.  (Any happier now, young Shakespeare?)

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.