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October 20, 2003

Rappin’ Opinion [10:29 pm]

Saw this referenced at How Appealing, but the link had aged (State of Michigan, Macomb County Circuit Court Case No. 2001-3606-NO — DeAngelo Bailey vs. Marshall Bruce Mathers, III a/k/a Eminem Slim Shady). Here’s where you can find the opinion: Judge Raps Eminem Accuser. To get to Judge Deborah Servitto’s rap, see page 13, footnote #11

To convey the Court’s opinion to fans of rap, the Court’s research staff has helped the Court put the decision into a univerally understandable format:

Mr. Bailey complains that his rep is trash

So he’s seeking compensation in some form of cash

Bailey thinks he’s entitled to some monetary gain

Because Eminem used his name in vain

Eminem says Bailey used to throw him around

Beat him up in the john, shoved his face in the ground

Eminem contend that his rap is protected

By the rights guaranteed by the first amendment

Eminem maintains that the story is true

And that Biley beat him black and blue

In the alternative he states that the story is phony

And a reasonable person would think it’s baloney

The Court must always balance the rights

Of a defendant and one placed in a false light

If the plantiff presents no question of fact

To dismiss is the only acceptable act

If the language used is anything but pleasin’

It must be highly objectionable to a person of reason

Even if objectionable and causing offense

Self-help is the first line of defense

Yet when Bailey actually spoke to the press

What do you think he didn’t address?

Those false light charges that so disturbed

Prompted from Bailey not a single word.

So highly objectionable, it could not be

–Bailey was happy to hear his name on a CD

[...] It is therefore this Court’s ultimate position

That Eminem is entitled to summary disposition

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More on Bonneville Industries v. Marybeth Peters [10:18 pm]

Finished reading the opinion, Bonneville Industries et al v. MaryBeth Peters. It’s a pretty instructive look at the kind of thing that Jessica Litman discusses in Digital Copyright — the way that the negotiation over rights in copyright becomes central to understanding what is, and is not, covered in each incarnation of the law of copyright.

I also found it instructive from the perspective of administrative procedure, the part of the law that I spent most of my time on when I was a student. There’s a whole subtext in the opinion about whether to apply a more stringent level of scrutiny to certain action of the Copyright Office during formal notice and comment rulemaking, whose relevance is rejected because the Copyright Office’s actions a appropriate under either criterion (in the view of the court) so the court does not need to distrnguish between the two.

Essentially, the case centers on parsing the meaning of "nonsubscription broadcast transmission" (something exempted from licensing fees to recording companies in digital transmissions of sound recordings) and whether an AM/FM station’s simultaneous webcasting of their over-the-air broadcasts are such a transmission. While the issue of nonsubscription is easy to satisfy, the definition of a "broadcast transmission" takes the court to the Federal Communications Act, which says a "’broadcast transmission’ is a transmission made by a terrestrial broadcast station licensed as such by the Federal Communications Commission."

Here’s where the plaintiff’s argument founders on the rocky shoals of the court’s analysis. The plaintiffs argue that licensees must be firms, rather than physical plant, and therefore any firm that operates an FCC licensed broadcast station is exempt. The Court determines that such an interpretation makes the exemption far broader than Congress intended, and that therefore broadcasts are the product of physical facilities, rather than the product of a firm.

Frankly, by the time you get through all this, the case seems pretty mundane, but then the court (whose footnotes are indicative of the fact that this judge has been paying pretty close attention to the copyright issues in music — see below) slips in this stunning bit of insight:

Appellants argue that this narrow reading of broadcast transmission makes the word “nonsubscription” in the phrase “nonsubscription broadcast transmission” surplusage, since all over-the-air broadcasts are currently nonsubscription broadcasts. See Bailey v. United States, 516 U.S. 137, 146 (1995) (holding that each term in a statute should have a “particular, nonsuperfluous meaning”). We disagree. All over-the-air broadcasts are currently nonsubscription because they are analog. It is our understanding that analog radio technology is not capable of providing a subscription broadcast transmission. In comparison, §§ 106 and 114 are concerned with digital transmissions. With digital over-the-air transmission technology it is possible for transmitters to provide their transmission services on a subscription basis. Inasmuch as the legislative history indicates that Congress was anticipating the technology of digital radio when it formulated § 114(d)(1)(A), 1995 Senate Report, at 19 (App. at A718) (”[T]he Committee intends that [over-the-air] transmissions be exempt regardless of whether they are in a digital or nondigital format, in whole or in part.”), we find it perfectly reasonable to conclude that Congress was also anticipating that digital radio potentially could give rise to subscription radio services and chose expressly to distinguish such services from nonsubscription digital overthe-air radio services. [emphasis added]

Aside from the miracle of the word "surplusage," (!!) we see here an explicit judicial appreciation that access to a digital broadcast transmission can be limited — via digital rights management, of course — and thus is inherently different from analog transmission, whose access cannot be so controlled. Unarticulated, of course, is the fact that this control is only sustainable when coupled with the DMCA’s anticircumvention provisions.

(Here’s the first footnote from the earlier cite here at FurdLog, on the subject of Happy Birthday - shades of Eldred!)

Happy Birthday, originally penned by two Kentucky kindergarten teachers in the late 19th century, remains a protected and highly profitable copyright in the intellectual property portfolio of AOL/TimeWarner. Purchased by the company in 1988 for an estimated $25 million, it produces revenues estimated at $2 million per year. Under the Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827, for better or for worse, the song will not enter the public domain until at least the year 2030.

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At Least the Question is Getting Asked [8:09 pm]

U.S., Microsoft fight over online music

Nearly a year after Microsoft Corp. agreed to end its anticompetitive conduct, the government is raising concerns the world’s largest software maker is trying to use its dominant Windows operating system to influence where customers buy their music online.

If the dispute isn’t resolved by week’s end, it could become the first test of Microsoft’s landmark antitrust settlement that was approved by a federal court in October 2002.

Lawyers for the Justice Department and 19 state attorneys general have formally complained to a federal judge about a design feature of Windows that compels consumers who buy music online to use only Microsoft’s Internet browser and steers them to a Web site operated by the company.

Microsoft’s design “may be inconsistent” with the settlement, government lawyers wrote in court papers asking U.S. District Judge Colleen Kollar-Kotelly to intervene if the problems aren’t resolved.

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FYI: It’s Gettin’ Kinda Busy Here [7:59 pm]

So my postings are going to be a little more spare than usual for a couple of days. Sorry about that, but there are just so many hours in the day.

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Free Trade and IP [7:58 pm]

Lots of commentary on this report from IP Justice: The FTAA: IP Justice Whitepaper

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Will Cable Absorb the TiVo Business? [7:49 pm]

An assessment fromt he NYTimes: Can Cable Fast-Forward Past TiVo? [pdf]

In the end, Mr. Palermo was turned off from TiVo by the prospect of having to connect all kinds of wires and adding a new box to his home entertainment system. So, instead, he ordered a relatively new product that his cable company, Time Warner Cable, a unit of Time Warner, has been pitching: a set-top box made by Scientific-Atlanta with a DVR already built in.

“The fact that we could do this without the difficulty and complexity of a stand-alone thing made this a perfect fit,” Mr. Palermo said in a telephone interview on Friday.

Mr. Palermo is not alone, and Wall Street and the television industry are taking note. TiVo pioneered the DVR and the TiVo brand - like Frisbee, Kleenex and Xerox - has become synonymous with an entire product category. Nonetheless, TiVo’s original business of selling stand-alone DVR boxes, along with a monthly support service, appears in danger of being eclipsed by products that are much less expensive for consumers and are integrated with devices that many consumers are already comfortable with, like television set-top boxes.

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A Profile Of Rhino Records and Shout! Factory [7:47 pm]

Just another way to make money in the music business; A Label Works Unlikely Territory, Searching for Gold

But single-artist collections, a staple of Rhino’s business, are next to impossible for independent labels to compile today because the majors’ own catalog divisions have a lock on the material, Garson Foos said.

For “Rhythm Love and Soul,” Shout! Factory secured licenses for individual songs by dozens of artists from all five major labels - Universal, Sony, Warner, BMG and EMI - as well as indie companies. Shout! Factory made additional licensing arrangements with the majors for the three-CD “Rock ‘n’ Roll at 50″ set expected in December.

The company usually pays from $1,000 to $10,000 per licensed track, Richard Foos said. Shout! Factory bought the catalog of the Biograph label, which gave it ownership of many songs on the six-CD “Heroes of the Blues” series. Discs in that series have to sell about 10,000 copies to break even, Garson Foos said. The best seller, “Heroes of the Blues: The Very Best of Skip James,” has sold 1,053 copies since its release last month, according to Nielsen SoundScan.

Those are not major label numbers. But one of Rhino’s first profitable releases was a reissue from Allan Sherman, the musician and humorist, which sold about 5,000 copies, Richard Foos said.

Jeff Jones, the senior vice president for Sony’s Legacy Recordings and Columbia Jazz labels, said the former Rhino group had the history behind it to succeed in a depressed climate. “If you looked at all the newspaper reports and all the media, one would say, ‘Well, why are they even bothering to release any records, by anybody?’ ” he said. “I think the guys there are smart and creative and have the ability to find properties and understand their audience.”

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When Does Promotion Become Bundling? [7:44 pm]

Some exotic mechanisms to promote the sale of CDs: Buy the OutKast CD and Catch the Sale on Dogs and Paintings [pdf]

As illegal downloading cut into album sales in the last few years, some artists have starting advertising other band products in their CD’s like clothing and videos. Now the hip-hop group OutKast is offering something new to listeners: pit bull terriers.

The booklet accompanying the group’s new album, “Speakerboxxx/The Love Below,” has a full page advertisement for Pitfall Kennels, the breeder co-owned by OutKast rapper Antwan Patton, who goes by the name Big Boi, and his brother James Patton. The booklet also features an ad for psychedelic paintings by Big Boi’s fellow OutKast rapper, André Benjamin, whose rap name is André 3000.

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EU Copyright Directive Enforcement Changes [7:41 pm]

The Times discusses the fight over an EU directive focused on enforcement mechanisms for IP: Europe’s Antipiracy Proposal Draws Criticism [pdf]

The proposal would go far beyond existing laws in Europe and the United States by classifying copyright violations and patent infringements, even some unwitting ones, as crimes punishable by prison terms.

Lawyers who have studied a draft of the proposed law say that not only could a teenager who downloaded a music file be sent to jail under it; so too could managers of the Internet service provider that the teenager happened to use, whether they knew what the teenager was doing or not.

The proposed law would also make it easier for drug manufacturers to forestall generic competition by effectively stretching the duration of their patents, the critics say, and even the makers of replacement auto parts could face prosecution if they sell their wares to consumers.

[...] Critics say that such a sweeping law far exceeds what is needed to combat piracy and would criminalize innocent conduct in a number of situations that cannot reasonably be called counterfeiting.

For example, designers at rival technology companies race to match and improve on each other’s work, and must make business decisions every day about the subtle line separating permissible innovation from patent infringement. If crossing that line is made a crime instead of just a civil matter, critics like Nokia say, companies will become much more timid in the laboratory.

“It is vitally important that this directive strike the right balance between protecting the interests of right holders without unfairly impeding others from competing,” said Tim Frain, director of intellectual property at Nokia.

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Is the Problem that It’s Music? [7:35 pm]

This New York Times article asks that when considering Audible Inc: Audible Service Could Teach Music Industry a Lesson [pdf]

There are big differences between the two recording industries. Audio book sales, about $2 billion a year, are a small fraction of the music industry’s $12 billion in revenues from the United States. Unlike CD’s, audio books - often filling four or more cassettes - can be unwieldy, more naturally suited to the digital format. And users of spoken word content, which covers a variety of products, including radio programs and daily digests of newspapers, are typically older, which makes them more respectful of copyright laws, industry executives say. “A book is a substantial cultural artifact, where a song doesn’t have much weight to it,” Mr. Katz said. He cited the “politicization of sharing music” as another reason for the music industry’s problems.

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Forrester Likes iTunes 4 Win [7:32 pm]

As this CNet News commentary reports: Commentary: Facing the music

Others arene’t quite so satisfied: Serious Windows iTunes Bugs

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Radio Stations Don’t Get A Streaming License Exemption [7:29 pm]

From Digital Media Wire: The National Association of Broadcasters vows to fight today’s decision in Bonneville International et al. v. Marybeth Peters

This dense opinion (IMHO) merits careful reading, but the historical presentation of the compulsory license in broadcast music is entertaining and succint.

This case deals with copyright protection for sound recordings. The creator of a musical composition has long had a right of exclusive public performance of that musical piece. 17 U.S.C. Sect. 106(4). Therefore, every time you hear the ubiquitous refrain from Happy Birthday in a public performance, a subsidiary of AOL/TimeWarner cashes a royalty check. However, the owner of a copyright in a sound recording of a musical composition has long had very little copyright protection. Until 1971 there was no copyright protection at all. With the Sound Recording Amendment of 1971, Pub. L. No. 92-140, 85 Stat. 391, a limited copyright in the reproduction of sound recordings was established in an effort to combat recording piracy. However, there was still no right to public performance of that sound recording. Therefore, while playing a compact disc recording of Happy Birthday in a concert hall for the paying public would still enrich AOL/TimeWarner, the person or company that owned the copyright on the CD recording of the music would earn no remuneration beyond the proceeds from the original sale of the recording. This dichotomy of copyright protection has a significant impact in the radio broadcasting industry. While radio stations routinely pay copyright royalties to songwriters and composers (through associations like the American Society of Composers, Authors, and Publishers and Broadcast Music, Inc. (”ASCAP”) and Broadcast Music, Inc. (”BMI”)) for the privilege of broadcasting recorded performances of popular music, they do not pay the recording industry royalties for that same privilege. Perhaps surprisingly, this state of affairs, until about ten years ago, produced relatively high levels of contentment for all parties. The recording industry and broadcasters existed in a sort of symbiotic relationship wherein the recording industry recognized that radio airplay was free advertising that lured consumers to retail stores where they would purchase recordings. And in return, the broadcasters paid no fees, licensing or otherwise, to the recording industry for the performance of those recordings. The recording industry had repeatedly sought, however, additional copyright protection in the form of a performance copyright. Until 1995, those efforts were rejected by Congress.

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DVD Content [7:18 pm]

Not always the same as the original, as this Reuters article at Wired News says: TV on DVD: What’s the Difference?

Television shows may look the same — or even better — when they appear on DVD. But sometimes, they don’t sound the same.

Studios frequently have to replace the music heard during the original broadcast for the DVD release, largely because of the prohibitive costs associated with licensing the music, studio executives say.

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