Oh, Yeah — That RIAA Strategy Is Working Well

From the BBC: Music sharing tops net searches

More people looked for information about the file-swapping program Kazaa than anything else on the net in 2003, according to search site Yahoo.

It beat Harry Potter, Britney Spears and Eminem to top the list of the year’s most popular searched-for terms.

It shows that despite legal moves by the recording industry to clamp down on illegal music swapping, surfers are still interested in such software.

A Wrinkle on the Amazon Scan System

Via beSpacificAmazon page search alarms writers of cookbooks, references [pdf]

On Oct. 23, Amazon.com initiated a new function called “Search Inside the Book.” Launched in conjunction with publishers, the program allows customers to search every word of every page of about 120,000 books – including dozens of cookbooks. It has been called “the Google of books.”

Or, for cooks, a sort of Google meets Epicurious, the Web site that provides free recipes from Bon Appetit and Gourmet, among other food publications.

Though visitors to the Amazon site are limited to reading only 20 percent of any book included in “Search Inside the Book” (a restriction that would prohibit a reader from finishing a best-selling novel, for example), they could easily pull out a recipe from a cookbook.

[…] Paul Aiken, executive director of the Authors Guild, an advocacy group for authors, has opposed the search function since its inception, describing it as a possible copyright infringement. Of particular relevance, Aiken explains, are reference-style books that contain a compact unit of marketable information on an individual page, such as cookbooks and travel books.

As those who’ve read Lessig’s Code know, you can’t copyright recipes, but you can copyright a book containing recipes. Similarly, you cannot copyright the data in an almanac, but you can copyright the almanac. And, depending on how you interpret the EU’s copyrighting of databases, it may well be that you can copyright data there, too.

Speaking as someone who’s gone to a bookstore to peruse cookbooks for ideas, was I really breaking the law? What about writing down a recipe from a library book? It seems to me that, once again, the seductive power of monopoly (awarded under copyright) is leading to nonsensical claims. Time to get back to that article on metaphor, methinks….

Dave Barry’s 2003 Wrapup

From the Washington Post (Between Iraq and a Hard Place [pdf]) includes this July highlight:

In entertainment news, CNN, concerned about flagging viewer interest in the Laci Peterson format, switches to “All Kobe, All the Time.” The music industry, in what is seen as a last-ditch effort to halt the sharing of music files on the Internet, asks a federal judge to issue an injunction against “the possession or use of electricity.”

A Provocative Question

How well do metaphors help us understand the Internet? Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary [via Legal Theory Blog (note there’s something wrong with his clock, or else he’s crossed the International Date Line without telling us <G>]

This paper seeks to explore the evolution of metaphorical inferences as applied to the Internet within legal commentary and judicial opinion. Three metaphors in particular will be examined (though this is not an exhaustive analysis by any means): the information superhighway, cyberspace, and the Internet as "real" space. Given the Internet’s ongoing evolution as an unstable and ever-changing technology, courts and commentators have faced perpetual difficulty in mapping metaphors to it. Changing social constructions of the Internet as necessitated by its evolving underlying technological architecture have supported, or conversely eroded, a particular metaphor’s literal congruence with reality. The purpose of this paper is not to normatively assess what metaphor (if any) ought to be applied to the Internet in legal analysis, rather it is to make transparent the different conceptions of the Internet courts and commentators are sub silentio employing, and the various sociological, technological, and ideological conceptions of the world that support them.

US Bicycles Invade Europe

Sorry — this is terribly off-topic, but of particular interest to me as I start to think about getting back into cycling shape: U.S. Bike Makers Seek Dominance in Europe

Faced with rapidly declining sales and shrinking margins on mountain bikes, American bicycle makers are looking to generate growth in Europe, where road cycling remains a popular spectator sports. Trade figures do not distinguish between sales of road bikes, which have thinner tires and light frames and are meant for use on pavement, and mountain bikes, which are heavier and equipped for off-road use. However, Lou Mazzante, the managing editor of Bicycle Retailer and Industry News, a trade publication, said he thinks that three American companies – Trek, Cannondale and Specialized – sell about 50,000 complete, high-end road bicycles a year in Europe at the moment, up from virtually none a decade ago.

Mattel v. Walking Mountain

An entertaining decision from the Ninth Circuit: Mattel v. Walking Mountain Productions (Findlaw’s link) (summarized in this Reuters news item: Court Rules Nude Barbie Photos Are Free Speech) — see a sample of "Food Chain Barbie" at Illegal Art — www.creativefreedomdefense.org is his WWW site, but it’s timing out tonight — a Googling finds the exhibit at his domain, but it’s not responding.

A federal appeals court on Monday upheld a Utah artist’s right to make nude photos of Barbie dolls being menaced by kitchen appliances.

Noting the image of Barbie dolls is “ripe for social comment,” a three judge panel of the 9th Circuit Court of Appeals rejected toymaker Mattel Inc.’s appeal of a lower court ruling in favor of lampooning the popular doll.

The San Francisco-based appeals court ruled that naked photos of Barbie made by Kanab, Utah, artist Thomas Forsythe were meant to be a parody and could not affect demand for Mattel products.

Even better, from the opinion:

On cross-appeal, we VACATE and REMAND the Los Angeles federal district court’s decision to deny Forsythe attorney’s fees under the Lanham and Copyright Acts. [slip op. p. 18207]

Update: From SFGate — Appeals court tosses lawsuit targeting Barbie lampooner; also, the Scrivener’s Error writeup: More Barbie News

Another Set of Data Points

More on the stalling of internet deployment, and some indication of how well the RIAA’s battle is going [via beSpacific] — from the Christian Science Monitor: The Internet hasn’t reeled in everyone yet

After spiking in the 1990s and early 2000s, the percentage of adult Americans online has leveled off in the past two years at 63 percent, says a new study from the Pew Internet & American Life Project. That percentage is expected eventually to rise, but not as quickly as some had imagined.

“It’s no longer the case that the Internet population is growing by leaps and bounds,” says Lee Rainie, director of the Pew project. However, “the Internet is eventually going to become as important and universal a technology as telephones and televisions are now.”

Ninety-four percent of American homes today have telephones; 98 percent have TVs. “The Internet is eventually going to get to that level,” he predicts, “but it’s going to take at least 10 years – or maybe even 15 or 20.”

[…] One key barrier slowing Internet growth is the lack of broadband connections in some areas, says Phillipa Gamse, an e-business strategy consultant in Santa Cruz, Calif. Broadband allows users to move around the Internet faster, doesn’t tie up the phone line, and, perhaps most important, can be left on all the time, like other appliances.

From the Pew Study: America’s Online Pursuits: The changing picture of who’s online and what they doHobby and Entertainment Activities

About a third of users download music files.

  • 32% of Internet users have downloaded music, as of October 2002.

  • That represents growth of 71% from 21 million Americans who had downloaded music as of the summer of 2000, to 36 million who had done so as of October 2002.

  • The number of users who download on a typical day doubled from 3 million to 6 million between 2000 and 2002.

  • Online men are more likely than women to download music.

  • This activity is particularly appealing to online minorities.

  • Young adults and teens are the likely downloaders.

  • There is a higher proportion of downloaders among those with modest household incomes and with high school diplomas.

  • Those with broadband connections are more likely than others to download music.

[…] Wired young adults have undoubtedly driven the growth of music downloading more than any other adult age group. As we have reported previously, college students, represented in the 18- to 29-year-old demographic, are twice as likely to have downloaded music compared to the general population and they are three times as likely to do so on any given day. College students often have free access to high-speed Internet connections on campus and have utilized those resources to become pioneers and heavy users of file-sharing technologies. The older an Internet user, the less likely he or she is to have downloaded music. While 54% of 18- to 29-year-olds had downloaded music in October 2002, just 29% of 30- to 49-year-olds had done so.

Children and teens have been even more voracious downloaders. In a special survey of 754 children between the ages of 12 and 17 that we conducted in late 2000, we found that 53% of online children had downloaded music. For comparison’s sake, only 42% of 18- to 29-year-olds said they had done this. Considering the growth that has occurred across all age groups between 2000 and 2002, it is likely that number of children downloading music has also grown.

See also A Slowdown In Broadband Deployment

More on Exclusive Music Deals and Mega-Retailers

Big Stores Make Exclusive Deals to Bring in Music Buyers (See also the article in The Music Biz — Then and Now from November — see the PDF, the Globe link has expired)

The exclusive deals are being offered as mass marketers are seeing their share of the music business grow. Discount stores like Wal-Mart accounted for only 13.5 percent of music sales in 1994, said Clark Benson, the chief executive of the Almighty Institute of Music Retail, a Los Angeles-based company that sells data about retailers to record labels. This year the figure is 34.8 percent. Billboard and its corporate sibling Nielsen SoundScan lump electronics chains like Best Buy and Circuit City with traditional music stores. Adding their sales to the other mass marketers would probably raise that group’s total to more than 50 percent, said Geoff Mayfield, the director for charts and senior analyst at Billboard.

For the retailers, the deals are as much about using the artists’ appeal to lure customers as they are about selling CD’s and DVD’s. For the musicians, the deals are less about sales than about promotional campaigns well beyond anything offered by record companies even in their glory days.

For example, Target promoted its exclusive seven-song Bon Jovi CD with an extensive television campaign. In the 30-second spot – which cost $1 million to produce, the band’s management said – snippets from a studio performance of a song on Bon Jovi’s new full-priced CD were intercut with footage of band members chatting about the meaning of the song. Best Buy started a similarly ambitious television campaign for its Rolling Stones DVD set last month.

“If you look at the Target commercial, that’s an ad for Bon Jovi and they just stuck their little circle on at the end,” said Bruce Kirkland, one of the two principals at Bon Jovi Management.