May 31, 2004

What’s the Obvious Question in this Story? [8:50 pm]

The question — why is there no copyright dispute discussed in this article? Following a Wiz to a Far-Out Oz

Mark Bode (pronounced BO-dee), also a cartoonist, recently completed his father’s interrupted work “The Lizard of Oz,” a raunchy departure on the “Wizard of Oz” that features the older Bode’s premier creation, Cheech Wizard. Fantagraphics Books of Seattle will publish the book next month.

[...] Mr. Bode decided to start the “Oz” project in 2000, with a $1,000 commitment from Fantagraphics and a concept cover illustration by his father. “It’s the last thing my father planned,” said Mr. Bode, who wrote the story.

When the elder Bode reinterpreted the legendary story theme, he added several twists to Dorothy’s tornadic dream, which he related to his son. Judy Garland’s juvenile character becomes Poppy, a not-so-nice, beer-drinking, thieving, 4-year-old orphan thief. She romps with Cheech (the Wizard); a hemp-stuffed scarecrow; a mangy, homosexual lion; and a tin man obsessed with an oil drum.

So, why no copyright fight in the article? L. Frank Baum died in 1919, 85 years ago.

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When An RIAA P2P Case Goes To Court [8:27 pm]

Several have pointed to this: Inside the Courtroom - Berkman Briefings

Yesterday’s hearing offered a view into what might happen if these cases did not end in settlement negotiations and instead proceeded to trial. Inside the courtroom, the attorneys for the recording industry outnumbered defendants by a two-to-one margin, and the disparity of resources and expertise between the sides only continued to widen. At one point, Judge Gertner dismissed a motion from a defense attorney because, she explained, the “legal argument doesn’t make any sense.”

The Court had previously expressed concern about this resource gap and about defendants who had “no access to counsel.” In order to help raise some legal issues at the core of the case, several parties – including the Motion Picture Association of America, a group of musicians and songwriter societies, and representatives of the Berkman Center for Internet and Society – filed amicus briefs with the court.

The Berkman Center’s brief – signed by Harvard Law School Professors William Fisher, Charles Nesson, and Jonathan Zittrain as well as John Palfrey, Diane Cabell, and Harvard Law School students Renny Hwang and Ory Okolloh – was submitted on behalf of the court rather than on the side of any party in the case. The brief outlines a series of factual considerations – such as the default settings of KaZaA and possible errors that can arise when using IP addresses to identify individuals. It also considers the larger, substantive issues at stake in the lawsuits, including fair use defenses and the question of whether making files available in shared folders constitutes a violation of the copyright holders’ “public distribution” rights.

There’s an addendum to the Berkman brief page that I find particularly interesting as I add "wiki" technologies to my own research:

Follow-Up: Interactive Brief

In the coming weeks, the Berkman Center will post a version of this brief on a wiki page that can be modified, updated, and amended by others interested in these issues. This interactive brief is intended to serve as a resource for potential plaintiffs and defendants in similar cases and for those interested in developing the legal issues at stake in these matters.

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A la carte cable? [11:45 am]

Not sure it’ll get me to buy it, but it’s interesting to see th development: Need ESPN but Not MTV? Some Push for That Option

“If you go to the 7-Eleven to buy a quart of milk, you are not forced to take a six pack of beer, too,” said Mr. Bozell, who wants the right to buy only the channels he and his family watch.

The issue of à la carte pricing is a headache that the cable companies and networks have long tried to avoid. But now, cable pricing is coming under new scrutiny in Washington in a debate driven by Senator John McCain, a Republican from Arizona and the chairman of the Senate Commerce Committee, and greatly inflamed by the indecency debate and lobbyists like Mr. Bozell.

Earlier this month, a bipartisan group of members of the House Commerce Committee, led by its chairman Joe L. Barton, Republican from Texas, and Nathan Deal, Republican from Georgia, asked the Federal Communications Commission chairman, Michael K. Powell, to review the feasibility of à la carte pricing and to provide its findings to the House committee by mid-November.

Ernest points out that he’s discussed this earlier, with an invitation to help on preparing comments for the FCC: FCC Requests Comments on a la Carte Cable Subscriptions

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Speaking of Blind Spots [11:39 am]

This is a little off-topic, but I have been persistently confused by the argument that fingerprints are never wrong, while DNA typing evidence at least comes with a statistical estimate of error: Can Prints Lie? Yes, Man Finds to His Dismay

The judge, Alan L. Page, had been told the prints were the same. “The general rule is, the prints don’t lie,” Judge Page had said earlier. “If you got the same prints that Leo Rosario has, you’re Leo Rosario. And there’s nothing I can do about it.”

So Mr. Sanchez, in late 2000, was sent back for another week in a grim detention center in Lower Manhattan, severed from his family and livelihood, because his fingerprints had been mistakenly placed on the official record of another man.

Remarkably, this was not the first time Mr. Sanchez had paid for that mistake. He had been arrested three times for Mr. Rosario’s crimes, and ultimately spent a total of two months in custody and was threatened with deportation before the mistake was traced and resolved in 2002.

Mr. Sanchez’s ordeal, unearthed from court records and interviews, amounts to a strange, sometimes absurd odyssey through a criminal justice system that made a single error and then compounded it time and again by failing to correct it.

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Summer Reading List Addition [11:35 am]

‘The Creation of the Media’: The American Information Revolution

Although Starr doesn’t put it quite this way, the heart of his argument is that Americans fundamentally misunderstand what is unusual about their communications media, and why. ”The media,” for Starr’s purposes, include not just the print press but also books, broadcasts (radio and television), the movies and other innovations, notably including telephones, that allow people to share information. Conventionally, Americans think that the most important fact about their news media is that, thanks to the First Amendment, they are ”free.” The absence of governmental controls over parts of the media — though not all, as witness broadcasters’ wrangles with the Federal Communications Commission — has indeed made America’s communications system distinctive. But the emphasis on the First Amendment implies that the media’s evolution has been automatic and unplanned.

What Starr argues — and, in my view, powerfully demonstrates — is that every branch of the communications system reflects deliberate political choices made under particular historic circumstances. To give one example, out of scores in the book: through the 1700’s the British government feared that newspapers would fan political opposition and so restricted their growth, not directly but through onerous taxes. When, for budgetary reasons, it tried to apply these taxes to the American colonies, through the Stamp Act of 1765, it met outraged resistance. ”The colonists famously opposed the measure on the grounds that it was taxation without representation, but the specific nature of the tax also mattered,” Starr says. The Stamp Act’s burden would fall on the newspapers and pamphlets that had been so important in developing a revolutionary sensibility. As the new American republic took form, it devised a sweeping range of measures designed to foster the growth and circulation of newspapers, including as many local ones as possible.

Starr describes this process as a ”constitutive choice,” one that sets the conditions for future development of an institution. (This leaden term brings up my only real complaint: the writing here is denser and less inviting than in Starr’s previous big book, presenting the risk that ”The Creation of the Media” will be more influential than avidly read.) ”It is a particular argument of this book that the United States has followed a distinctive developmental path in communications ever since the American Revolution,” he writes. This path has led to American media more technically advanced, in some ways more varied and with a wider audience than those in many other Western countries, but also with distinctive blind spots and excesses. Most of Starr’s book examines three long and overlapping ”constitutive moments” when political choices and technological developments shaped the media’s growth.

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Technological Alienation (and Rent Extraction) [11:30 am]

Drivers Want Code to Their Cars

Rachel Seymour, a college student from Portland, Oregon, has had her 2002 Kia Spectra serviced 12 times for a Check Engine light problem. Each time, she’s forced to take it to a Kia dealership, where a technician hooks her car up to a computer, runs a battery of tests and charges her $120 to diagnose and repair the same problem: a loose gas cap.

[...] Fed up with wasting time and money, Seymour resorted to a low-tech solution to mask the high-tech problem: She covered the warning light with electrical tape so she wouldn’t have to look at it.

[...] A bill floating through Congress could help people like Seymour by forcing automakers to share diagnostic codes with car buyers and independent mechanics. The Motor Vehicle Owners’ Right to Repair Act would give Seymour the means to determine whether the Check Engine light signaled another gas cap vagary or a major oil leak. The legislation would also allow Seymour to choose an independent — and possibly cheaper — repair shop instead of being forced to go to the dealership.

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TI’s DLP Technology Gets Some Competition [11:26 am]

Competition Is Heating Up as Projectors Go Digital

Motion picture industry analysts have long predicted a shift to digital projection because using a hard disk, rather than a film projector, to serve up a movie produces a superior image.

“Our new technology is the holy grail of digital projectors,” said John Scarcella, president of Sony Electronics’ broadcast and business solutions company. “A 4k resolution is what the industry has been waiting for. It gives the ‘wow’ factor that consumers want.”

Sony’s 4k projector creates an image that is 4,096 pixels across and 2,160 high, and has four times the number of pixels delivered by Texas Instruments’ 2k DLP Cinema projection chip, which projects an image 2,048 pixels across by 1,080.

[...] Theater owners have refused to pay for the digital conversion, arguing that the studios stand to gain the most in the switch to digital delivery. Indeed, when studios deliver digital files of films via satellite rather than by producing and shipping large reels of celluloid from theater to theater, they will save about $1,200 a print, or a total of $1.36 billion a year, according to Screen Digest, a London-based research firm.

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Patent Awarded for a Virtual Orchestra [11:22 am]

Will this be a perforance? A mechanical reproduction? Something new? An update on the player piano — A Virtual Music Machine

The system’s hardware uses “what basically looks like a normal musical keyboard,” he said, “but is really more like a computer keyboard with different functions for different keys.” The orchestral parts are recorded into the equipment during preparations for a production, and during the live performance, the absent instruments are reproduced in a way that blends them into the tempo and dynamic of the real performers.

The virtual orchestra system divides a performance into two parts, he explained, those that never change, and those could vary.

“What we try to do is determine those aspects of a musical performance that are fixed and not changing,” he said, like the musical notes in a song. “We give those to the computer system.

“However, in a live performance, the singers sing differently every night,” he said. “Ideally, everything that is considered musical or the expressive aspect of the performance, we keep for the performer. One of the most important areas of performance is tempo flexibility, how you speed up and slow down.”

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First "Casablanca," Now "Cast Away?" [10:42 am]

Fox Objects to a Parody of ‘Cast Away’

The movie’s writer and director, Bryan Michael Stoller, a friend of Mr. Jackson, said he believed the studio was trying to quash his film to avoid association with the tainted pop star.

“Michael Jackson is in it, and he’s always been a target,” Mr. Stoller said. “I guess they feel it will get a lot of exposure because of him. And No. 2, I think they’re just bullying the independent filmmaker because they can.”

A spokeswoman for Fox said the letter seeking to block the film “speaks for itself” and had nothing to do with Mr. Jackson.

In the letter, which demands that Mr. Stoller change the title of his film, a Fox lawyer, Jon Del Barrio, wrote, “The distinctive and famous `Cast Away’ title has clearly achieved secondary meaning among the public, and as such has attained trademark rights associated with its use.”

The letter added: “We hereby demand that you immediately cease and desist from further use of the `Cast Away’ mark or any other name that is confusingly similar to the `Cast Away’ mark.”

[...] In a follow-up letter on May 4, another Fox lawyer, Robert B. Cohen, wrote, “The alleged parodic nature of your film does not extend to your film’s title.” He added, “A parody must make comment on the underlying material that it parodies.”

Mr. Stoller said his movie did exactly that. “They’re playing God,” he said. “I can’t afford a lawyer right now. I can’t get errors and omissions insurance. No distributor will pick it up. They’ve pretty much killed the movie unless I change the title.”

For those who haven’t seen them, here are the Marx Brother’s letters to Warner over "A Night in Casablanca"

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A Tough Act To Follow [10:36 am]

Note that this article is a typical reflection of The Times’ general inability to discuss “piracy” in anything but the most crude fashion (although see the “page three” discussion of the dissent within the ranks over employing the RIAA’s lawsuit strategy) — Hollywood’s Casting Problem: Who Will Run the M.P.A.A.?

The job of running the association ought to have a long, juicy waiting list of Washington V.I.P.’s. Who wouldn’t want a million dollars a year to plump for Tom Cruise instead of, say, biomedical tax credits?

Oddly, not too many folks. Representative Billy Tauzin, Republican of Louisiana, at first accepted, then — after being offered a lot more money by the pharmaceutical industry — rejected the job last fall. Since then Senator John Breaux, Democrat of Louisiana, has also been wooed by the the association, to no avail. He let it be known that he wasn’t eager to defend Janet Jackson’s right to show a nipple ring.

The process of finding Mr. Valenti’s replacement is nonetheless moving forward, if ever so slowly and under a cloak of heavy secrecy.

[... T]he job is becoming even harder. The crisis of worldwide movie piracy, held at bay only by technological limits, threatens to sink the movie industry entirely, as it may the music business. Numerous Hollywood and Washington figures, including candidates for the job, point out that it’s a double whammy: the new chairman will have to follow Mr. Valenti’s 38-year act while coming up with a solution to the industry’s new perils. Potential candidates may remember that even the polished Mr. Valenti received a very public black eye last fall when he attempted to end the longstanding practice of distributing videotapes and DVD’s to people who vote on the Academy Awards. He introduced the change as a way to cut down on piracy, but it was met with a revolt by art-house distributors and a rebuke by the courts.

“I think it’s a job people are interested in, but it’s perceived — and rightly so — to be a hard job,” said Hilary Rosen, the former chief executive of the Recording Industry Association of America, the music industry lobby. “If there are easier jobs available, for more money, then why take a hard job?”

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May 29, 2004

New Music Distribution Models [1:15 pm]

Go ahead. Share.

A funny thing happened when music fans began illegally sharing songs by the Boston band Jim’s Big Ego on Napster several years ago. The band got bigger. So much bigger that when the record companies began cracking down on file sharing and Napster blocked JBE’s music, frontman Jim Infantino wrote a letter to Napster asking them to make his songs available, copyright or no copyright.

[...] What Infantino wanted was to share his music freely without sabotaging his career, a notion that major record companies would argue is untenable but that Infantino is discovering makes plenty of sense. In September he released “They’re Everywhere,” JBE’s fourth full-length album, under a Creative Commons license — a free, flexible copyright with the slogan “Some Rights Reserved.”

[...] So far so good. “They’re Everywhere” has already dramatically outsold any of JBE’s previous releases. The band performs at the Lizard Lounge on Thursday.

“I honestly don’t know how much of that is due to the way we’ve licensed this, but allowing people to share our music certainly hasn’t hurt our sales,” says Infantino. “We’re giving away the music and selling more CDs.”

[Prof. Larry] Lessig isn’t surprised. “For talented, up-and-coming artists like Jim’s Big Ego, the key to becoming successful is getting known and making your art available,” he says. “Free downloading doesn’t mean cannibalism. And the data doesn’t support the argument that file sharing harms sales.”

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May 28, 2004

EU Patent Fight [8:01 am]

Europe Braces for Patent Rules

Many coders fear a controversial law approved last week by the region’s ministers will pave the way for widespread restrictions on essential software components if it’s rubber-stamped by Parliament members later this year.

Smaller publishers say it will grant automatic monopolies to large multinationals and cripple the industry — unless they can plug popular opposition into the continentwide ballot process, now entering full swing.

“We’re making this an election issue,” Richard Stallman, the spiritual leader of the free software movement, told an audience of disgruntled developers he addressed in Bristol, England. “We can win this battle. We’re talking about a new bureaucracy tying up every business in Europe. It’s very harmful and only to the advantage of the mega-corporations.”

[...] The modified bill will be hit back to the Parliament in Strasbourg, France, for a second reading in September, when only a majority vote against it can undo the changes and derail the looming legislation.

With one last chance before the law is passed, programmers are moving to sway the world’s largest-ever transnational election, warning Parliament candidates that, if they want to return to their 732 seats come June 10, they had better listen to the coders’ concerns.

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May 27, 2004

WashPost on Network Neutrality [5:05 pm]

At least it’s getting discussed inside the Beltway: Will Providers Provide Equally?

Large tech companies such as Amazon.com, Yahoo Inc. and Microsoft Corp. raised the alarm last year, asking the Federal Communications Commission to consider establishing principles that would help ensure that the Internet grows up as a place that allows basic consumer choice.

Their view is that the Internet is such a vital component of life that it should resemble, in a small but crucial way, the electrical grid. One can imagine the chaos if your power company could take money from Sony Corp. so that its appliances got a higher quality of juice — and thus worked a tad better — than those of Mitsubishi Corp.

The power system wasn’t built that way, but high-speed Internet service providers have that very capability. Technology now exists that enables network operators to recognize the data packets that move across their systems, and to prioritize them. This is, in fact, how some universities are spotting and cracking down on music file-sharing over campus networks.

Would Internet service providers exercise that control? Some intriguing speculation came recently from the Yankee Group, a market research firm that services major corporations.

In a controversial report issued early this month, Yankee analysts looked at one of today’s hottest technologies, voice service over the Internet, also known as VoIP. Specifically, the analysts were pessimistic that the biggest VoIP player today, New Jersey-based Vonage Corp., could survive once the cable and telephone companies that provide most broadband Internet connections jump into the VoIP game, as they are beginning to do.

Slashdot: Will Providers Provide Equally?

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From the Mouths of Babes [8:56 am]

This MI2N press re-release on a BSA study includes a provocative paragraph: New Survey Shows That Teens Are More Likely To Illegally Download Than Tweens [via MI2N]

“I think the curriculum made an impact on my students,” said Bertha Nenque, a fourth grade teacher at Santa Maria Elementary School, Laredo, Texas. “They were surprised to learn that copyright laws apply in cyberspace.” When describing her experience teaching BSA’s cyber ethics curriculum, Ms. Nenque said, “The students look at it as a game, yet they are learning and will remember the material.”

It would be really interesting to probe *why* the students are confused — the CONTU White Paper still confuses me, most notably the recommendation starting on page 213 — particularly in contrast to an earlier CONTU recommendation.

See the educational materials at PlayItCyberSafe

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Bring Back Debtor’s Prisons!?! [8:33 am]

Single mom overwhelmed by recording industry suit [via TechDirt]

Tammy Lafky has a computer at home but said she doesn’t use it. “I don’t know how,” the 41-year-old woman said, somewhat sheepishly.

But her 15-year-old daughter, Cassandra, does. And what Cassandra may have done, like millions of other teenagers and adults around the world, landed Lafky in legal hot water this week that could cost her thousands of dollars.

[...] The lawsuit has stunned Lafky, who earns $12 an hour and faces penalties that top $500,000. She says she can’t even afford an offer by the record companies to settle the case for $4,000.

[...] A record company attorney from Los Angeles contacted Lafky about a week ago, telling Lafky she could owe up to $540,000, but the companies would settle for $4,000.

“I told her I don’t have the money,” Lafky said. “She told me to go talk to a lawyer and I told her I don’t have no money to talk to a lawyer.”

[...] Pierre-Louis said the RIAA isn’t afraid of a consumer backlash. “We’re facing a daunting challenge and we have to face it head-on,” he said.

Tammy Lafky is facing her own challenge. She said she doesn’t know what she’ll do. “I told her,” she said, referring to the record company lawyer, “if I had the money I would give it to you, but I don’t have it.”

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A Familiar Feeling [7:59 am]

Although not quite as bad as that cited in this article, For Some, the Blogging Never Stops

Blogging is a pastime for many, even a livelihood for a few. For some, it becomes an obsession. Such bloggers often feel compelled to write several times daily and feel anxious if they don’t keep up. As they spend more time hunkered over their computers, they neglect family, friends and jobs. They blog at home, at work and on the road. They blog openly or sometimes, like Mr. Wiggins, quietly so as not to call attention to their habit.

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GYWO Sticks It To The NYTimes [7:55 am]

The latest Get Your War On comic is largely about the NYTimes mea culpa yesterday (Slate’s article, Letters):

What about: “All the news that’s fit to print, if by ‘that’s fit to print’ you mean ‘that’s actually un-fact-checkable horseshit pulled out of some con-man’s ass and solemnly regurgitated free of charge, just so we could keep sitting at the tough guys’ table’?”

And you know what’s most embarrassing for the Times? They forgot to charge Chalabi a marketing fee.

See also Salon’s coverage: Not fit to print

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Re: Tonight’s Frontline — Not Only A Pop Music Problem [7:25 am]

The Curse of Beauty for Serious Musicians

One reason being attractive gets bad press is that classical crossover albums so often flaunt image to play the virgin-whore dichotomy to the hilt. Take Bond, a string quartet of four model-beautiful young women who play electric instruments in skin-tight catsuits. Take the Opera Babes, two classically trained singers who scaled the charts with mixes like “One Fine Day” (from Puccini’s “Madama Butterfly”). Sex really does sell: Bond’s first album sold two million copies. (A third album, “Classified,” is due in June.) Proponents of this kind of thing say that it is just part of an effort to find a niche for classically trained artists in a world in which they seem to be increasingly irrelevant.

[...] In a sense the resistance to strong, attractive women is comparable to resistance to so-called Eurotrash opera productions or to “La Bohème” on Broadway: resistance against any change to a status quo that already feels very, very fragile.

But the idea that women who are attractive are somehow being exploited is amusing given that some of the most visible “babes” in classical music are entirely responsible for their own images, thank you very much.

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Review of an RCA ClearPlay DVD Player [7:14 am]

With a discussion of just how well the filters work in practice: Add ‘Cut’ and ‘Bleep’ to a DVD’s Options

The funny thing is, you have to wonder if ClearPlay’s opponents have ever even tried it. If they did, they would discover ClearPlay is not objectionable just because it butchers the moviemakers’ vision. The much bigger problem is that it does not fulfill its mission: to make otherwise offensive movies appropriate for the whole family.

[...] ClearPlay works fine on movies that might, in fact, be considered family-friendly if relieved of the occasional gory injury or strong language - say, “Raiders of the Lost Ark” or “Freaky Friday.” And for any movie, you can press the right-arrow button twice on the ClearPlay welcome screen to see a list of things the filter will make no attempt to skip (Intense Life/Death Situations, Intense Battle Sequences, Murder and so on). Nonetheless, had ClearPlay done a little filtering of titles and not just scenes, its arguments might have been a bit more persuasive, and the current court battle more meaningful.

But as it is, the evidence suggests that ClearPlay’s technology is not intended for families at all. It’s for like-minded adults, specifically those who are offended by bad language and sexual situations but don’t mind brutality, destruction and suffering.

Maybe every ClearPlay-sanitized movie ought to begin with a message: “This film has been modified as follows: It has been formatted to fit the taste, sensibilities and religious beliefs of a couple of guys in Utah. That’ll be $1.50.”

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Frontline Review [7:00 am]

In anticipation of tonight’s Frontline, the Boston Globe has a p/review: How pop music became ‘Idol’-ized

In a one-two programming punch too deliciously ironic to have been planned, PBS is broadcasting the “Frontline” documentary “The Way the Music Died” the night after a new “American Idol” winner is crowned.

[... Michael] Kirk examines a variety of important trends. Some are inherently wrong-headed, such as massive radio chains with strict playlists that squeeze out anything but the most commercially viable tracks. Others have unexpectedly negative fallout, like MTV, a creative force that has become so powerful that now it’s nearly impossible for artists lacking hot bodies and a three-minute single to break out.

[...] Melinda Newman, West Coast bureau chief for the industry trade magazine Billboard, reports for the camera that of 30,000 albums released each year, fewer than a hundred are hits, and that sales have fallen from $40 billion to $28 billion in just three years. These are among the few hard facts and statistics Kirk offers in the program, however, which — in decidedly un-”Frontline” fashion — emphasizes anecdote over analysis. It’s an entertaining and informative window on the industry’s woes, but surprisingly incomplete.

The most glaring omission is the hot-button issue of Internet file-sharing and downloading, which the recording industry touts as the root of its woes. Where are the interviews with — and perspectives from — high-level executives at the major labels? They undoubtedly have different views from Danny Goldberg, a major-label expat now running the independent label Artemis, who paints an articulate but hardly exhaustive picture.

[...] Perhaps most telling are the segments with Sarah Hudson and her label’s A&R executive, Joanna Ifrah, who gushes about finding the anti-Britney, the “cool chick who looks strange, dresses strange, didn’t get all the guys, and had parental problems,” and then goes on to supervise Hudson’s makeover into a mainstream pop tart. Hudson’s single, “Girl on the Verge” was released last month but — as the closing voiceover informs us — it has yet to find its way into the hearts of music lovers.

Frankly, props to Mathew Gilber to saying almost the same thing in his short blurb in Critic’s Corner:

Tonight at 9 on Channel 2, “Frontline” is running “The Way the Music Died,” a look at why the rock recording industry is having financial troubles. “They’ve made business more important than the art,” complains Jackson Browne. Said another way, the executives are a bunch of happy idiots struggling for the legal tender.

Update: Slashdot discussion: The Way the Music Died including a reference to the important Merchants of Cool

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