December 28, 2004

Performance Rights in Digital Distribution [11:22 am]

Old Songs Generate New Cash for Artists

SoundExchange, a nonprofit agency in Washington, is authorized by the United States Copyright Office to collect royalties from digital broadcasters and pay them directly to performing artists. Founded in 2000 and initially part of the Recording Industry Association of America, SoundExchange made its first payments in 2001 and, after a slow beginning, has begun to double its annual collections; in 2005 it expects to collect and allocate $35 million.

But the biggest obstacle the agency faces, it says, is getting the word out to artists and registering them for payment. These royalties for new and unfamiliar formats are a category of payment that performing artists in the United States have never had: a performance right.

“This is a brand-new right,” said John Simson, the executive director of SoundExchange. “A lot of artists are unaware of it, and we’re working against 80 years of a music industry without a performance right.” (In Europe and elsewhere around the world, performing artists are paid a royalty for radio play, but because the United States has not paid the fee in the past, it has generally not been reciprocated by other countries.)

[...] The artists who stand to gain the most from a performance right are performers of pop classics and oldies standards who never received radio royalties before but, since hits from decades past stay in rotation, could collect significant amounts of money.

Carl Gardner, one of the original singers in the Coasters, sang on “Yakety Yak,” “Charlie Brown,” “Searchin’,” “Poison Ivy” and other radio staples but did not write the songs, so he never collected a royalty when they were played on the radio. (Those songs were written by Jerry Leiber and Mike Stoller, who own their own publishing rights.)

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December 27, 2004

Two From This Morning’s Morning Edition [7:42 pm]

Two bits from today’s lineup (you’ll have to search)

  • Online Music Services Still Face Major Hurdles

    le’s digital music player, the iPod, was one of this holiday season’s hottest gifts, with many retailers selling out. But online music sales haven’t seen the success of the iPod and continue to be dwarfed by the amount of music traded for free unauthorized sites. NPR’s Neda Ulaby reports.

  • Online-Monitoring Programs Popular with Parents

    Tracking technologies that let parents know what their children are doing online are starting to find their way into family life. Parents say they are trying to protect their kids, but it could be at the expense of trust. NPR’s Laura Sydell reports.

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Missed This [12:29 pm]

Via BoingBoing, a Slashdot effort to collect and list non-infringing uses of P2P nets: Sought for MGM v. Grokster: Non-Infringing P2P Use

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Creativity and Copying [12:06 pm]

Hast Seen the New Metal Album?

“Leviathan” is a song cycle based on Herman Melville’s “Moby-Dick.” The band’s drummer, Brann Dailor, was reading the novel last year and came across the early passage that calls the whale “the salt-sea Mastodon”; after that, the rest of the book seemed like a metaphor for a small crew of manic, undershowered rock musicians on tour. (The whale is the audience, if you like, or maybe the elusive quantity of hard-rock apotheosis.) The directly Melville-related lyrics on “Leviathan” appear early. The line “There’s magic in the water that attracts all men” roars over a crooked riff in “I Am Ahab.” Others apply by extension: “Island” invokes the old metal themes of Norse gods and volcanic eruptions, and the lyrics of “Hearts Alive” are generally about watery violence.

But what’s fantastic about “Leviathan” is that it sums up the last three decades of hard rock - a great width of styles, bludgeoning and tricky, from Metallica to Iron Maiden to King Crimson to Black Flag to Black Sabbath - with incredible acuity, extracting a great deal of what has been most effective in them.

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Game/Art/Music Mash-Up [12:03 pm]

Chomp if You Like Art

As in Toru Iwatani’s original game, the characters in Pac-Mondrian are a chomping mouth and his skittering nemeses Blinky (the red one), Pinky (the pink one), Inky (the aqua one) and Clyde (the orange one).

Unlike the original, the maze is Mondrian’s 1942-43 painting “Broadway Boogie Woogie” (in the collection of the Museum of Modern Art), rather than a blue grid on a black screen. The background sound isn’t the familiar electronic zoop-zoop-zoop but rather the piano boogies of Albert Ammons, Meade Lux Lewis and Pete Johnson, which Mondrian loved to dance to.

And each time the mouth gobbles one of the tiny colored blocks of “Broadway Boogie Woogie,” a high-hat cymbal crashes.

Pac-Mondrian was created by a Toronto art group, Prize Budget for Boys, for a contest sponsored by the Web site, an affiliate of the New Museum of Contemporary Art in Manhattan. [...]

[...] Strangely, the keepers of the Pac-Man flame are unperturbed. The First Church of Pac-Man, a Web site where fans can worship the “golden pixellated circle” that “did appear upon the darkened screen,” has often warned about false idols: “The prophesized umpteenth coming is upon us.” But the church has not yet issued any warning about Pac-Mondrian. Not even the Pac-Page, a Web site that keeps track of Pac-Man clones, has taken notice.

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“Sharing” And Consumer Demand [12:00 pm]

Kodak Updates Its Brownie to Compete in a Digital Age

One innovation that did pass the test was a “share” button, which allows users to select pictures as they take them that will later be printed or e-mailed as soon as the camera is returned to the dock.

“There is an emotional moment at the time of capture,” said Gregory R. Westbrook, Kodak’s vice president and general manager of its digital and film imaging systems unit. “The button lets the consumer express that emotion.”

Mr. Porter also supervised the staff of anthropologists and cognitive psychologists who studied how to make the cameras easier to use. And Mr. Porter made the idea clear: When there are conflicts, as there inevitably are, “the usability tests will win out.”

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Business Plan: Price Discrimination [11:53 am]

$10 for a Plain CD or $32 With the Extras

While the major record companies continue to discount new releases or even slash prices to try to counter file-sharing and widespread CD-burning, some music executives are quietly trying to expand the top end of the market. The average retail price of an album slid 4 percent in the third quarter to $12.95 - a new low, according to NPD Group, a research company. Yet some labels are pushing tricked-out versions of big titles that carry their highest prices ever.

There’s a basic business logic behind the move to test the upper limit, executives say. If labels must cut prices and sacrifice profits on the mass market, they must try to cover the difference by targeting niches of hard-core fans who are willing to shoulder higher prices for their favorite acts.

“In this climate, where everyone is bemoaning the death of the CD, and we’re all talking about price pressure, there is a growing market, which record companies are hoping to develop, of people that are happy to pay more money for value,” said Steve Gottlieb [....]

[...] There have been other indications of how labels plan to tap deeper into the biggest fans of their artists. Warner Brothers has been selling its artists’ ringtones, T-shirts and other merchandise directly to consumers though its corporate Web site. TVT is designing a section of its Web site to let fans buy music downloads, merchandise and perhaps even concert tickets, all in one transaction.

Many releases also are enhanced with software that lets buyers view exclusive content online. But moves to establish more direct relationships with fans may irk some retailers. In 2000, the National Association of Recording Merchandisers sued Sony Music Entertainment for including Internet links in CD’s that connected buyers to Web sites where they could buy additional music or other content, a move they said cut traditional music stores out of the market. The trade organization later dropped the lawsuit after the Justice Department filed a brief in the case arguing that the merchants’ allegations failed to show antitrust violations.

See also Music Labels Look to DVD’s as Sales of CD’s Decline

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Talk About Offensive Spin! [10:35 am]

In case you think that “spin” is restricted to the political domain: Code sleuths [pdf]

Similar scenes are playing out at software firms and other businesses across the country, as engineers frantically search their files for something they hope not to find: open-source components. Their improper use, in the worst case scenario, could subject companies to costly litigation from parties like the SCO Group of Lindon, Utah. SCO claims to own intellectual property in the Linux open source operating system and has set off alarm bells in executive suites by suing IBM Corp. and three other Linux-using companies over the past year.

“It’s almost like you’ve got be a lawyer now to develop software,” grumbled Jothy Rosenberg, chief executive and chief technical officer of Service Integrity, who earlier this month ordered a 24-hour scanning of his company’s Sift 3.5 software during a “code freeze” before its launch. “In this day and age, anybody building a commercial piece of software has got to do this. It’s like buying insurance on your building.”

[...] The most serious conflicts, highlighted with red bars in the Black Duck protexIP software used by Service Integrity, involve code covered by the so-called General Public License. Under that license, anyone who acquires and modifies open-source code must make their modified versions freely available to the public. Depending on how many files of code are covered, and what is in them, such a requirement can sometimes be a showstopper for a proprietary software company. (Fortunately for Service Integrity, its scan identified only open-source license conflicts the Newton company was able to resolve.)

In other words, a GPL violation could now open a company up to an “SCO-like” lawsuit?!?! Given the state of the suit, this can only mean that the writer is actively looking to slam free/open source by trying to conflate the GPL with SCO, or he was too lazy to contact the lawyers who *do* work with companies that end up in violation of the GPL. After all, the point of the SCO lawsuit is whether the software at question can be/is GPLed!!

We’ll leave for another day the naivite demonstrated by thinking that this quote was news (not to mention to wonder about the qualifications of a CTO of a software firm willing to be quoted saying this) — ”’It’s almost like you’ve got be a lawyer now to develop software,” grumbled Jothy Rosenberg, chief executive and chief technical officer of Service Integrity….’

What to do you think? Feel free to let the Boston Globe, as well as the writer (whose email is at the close of the article), know.

And I agree entirely with Prof Madison that any credible software firm has to do a code audit in this era (hence the question about naivite) — particularly in the face of software patenting. I would estimate that coping with GPLed code is a simple task compared with that one.

Later: GrokLaw commentary - Plugging the Knowledge Gaps on FOSS Licenses - OSDL Conference

The bottom line is always the same: If you steal someone’s code, there will be consequences. That’s true for the GPL (if you distribute the code — you are free always to use any GPL code in-house without any consequences at all), but it’s not unique to it. If you steal Microsoft’s code, there are consequences also. You do have to respect other people’s intellectual property rights, as lawyers call them. That’s true for all licensed code, including the GPL. If, in the past, some didn’t take the GPL seriously enough, they do need to wake up and smell the coffee. But SCO has nothing to do with companies needing to pay attention to FOSS licenses, except perhaps that their stepping like fools straight into quicksand helps other companies to know where not to step. By all means, study up about FOSS licenses so you don’t do what SCO did to itself.

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December 25, 2004

The Register’s Year In Digital Music [12:00 pm]

Downloading digital music

Digital downloads are here to stay, and 2005 will be characterised by more, bigger attempts to get mainstream buyers as well as natural P2P users to pay for downloading songs. Apple’s vertical model - own the hardware and the content supplier - is likely to remain pre-eminent, but only while it’s the hardware that leads the business. Microsoft’s PlaysForSure scheme may be able to unite disparate hardware vendors and content sellers into a whole that has the synergy of iPod and iTunes, but it seems unlikely. In Europe, losing the right to bundle Windows Media Player 10 with the OS may cost MS dear.

That said, the weight of WMA-based services, many from strong music-related brands, may cause the balance to shift from hardware to content. And the effect of video remains unclear: will video devices wrest consumers’ attention away from the iPod next Christmas? Or are portable media centres to become little more than the pocket TV of the 21st Century?

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A Rare Case [11:57 am]

Where both of my research interests collide: Honda wins China copyright ruling

Japan’s Honda has won a copyright case in Beijing, further evidence that China is taking a tougher line on protecting intellectual property rights.

A court ruled that Chongqing Lifan Industry Group must stop selling Honda brand motorbikes and said it must pay 1.47m yuan ($177,600) in compensation.

Internationally recognized regulation is now a key part of China’s plans for developing its economy, analysts said.

Beijing also has been threatened with sanctions if it fails to clamp down.

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Would You Need To Clear Copyright To Do A Remake? [11:32 am]

Once Again, Having Its 7 Minutes of Flame

For some, the yule log is an easy, pleasantly cheesy backdrop to tree trimming and gift-wrapping. But it is also a Dadaist joke: television as the hearth, not just metaphorically but literally.

Whatever the reasons, there is no question that the yule log is cherished by viewers. When WPIX decided to stop showing it in 1989, the station was flooded with complaints and a grass-roots lobbying campaign sprang up to bring it back. Ersatz and, at some level, deeply pathetic, the television yule log became one of those mourned New York landmarks that make up the city’s shared nostalgia, like the Automat and Ebbets Field. (And someday, no doubt, the Naked Cowboy in Times Square.)

Connoisseurs trade as a trivia question the name of the man who brought the yule log to television (Fred Thrower, who was general manager of WPIX from 1953 to 1975, and died in 1999). The show’s mystique grew during its dark period: each year since WPIX brought it back in 2001, the log has won its time period in the city’s overnight Nielsen ratings. This year, viewers in cities like Chicago and Dallas can see what they have been missing when the log is shown early on Christmas Eve on Superstation WGN (like WPIX, a Tribune Company television station). And throughout the holiday season, anyone can start a quick fire on a laptop by linking to the log online (, though it would probably be best not to download it in a crowded theater.

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December 23, 2004

More on Home Brew Ads [2:26 pm]

A followup to this earlier posting: Unauthorized Campaigns Used by Unauthorized Creators Become a Trend [pdf]

Coca-Cola is not the only marketer dealing with marketing it did not ask for. New ads and ideas for campaigns are increasingly popping up without client or agency involvement, whether online, on television or metaphorically nailed to boardroom doors.

Various people with diverse motives are behind the proliferation of vigilante marketing. They are freelancers and fans - even agencies - looking for accounts, and they have shown up this year to advertise or try to advertise products as they see fit.

[...] There are also agencies and creative executives working on what might be called superspeculation, like the team at Vaughn Whelan & Partners in Toronto. It does not work for Molson, but nonetheless created a commercial for Molson Canadian beer and put it on television in October.

“I had an idea that I’d actually been fostering for some time that was perfect for this brand,” said Vaughn Whelan, president and creative director. “My goal was to get one hour in their boardroom and show them five years of advertising, so they could see the future.”

The 60-second commercial, which was an effort to move away from typical beer marketing, showed a bike messenger fighting to persuade the Canadian government to let him deduct his daily food costs as “fuel” on his taxes. It ended with the line: “Respect. It’s a Canadian thing.”

Wary of potential legal issues, Mr. Whelan consulted with several lawyers and informed Molson executives before the spot appeared. After it ran twice, as planned, Mr. Whelan said, “They gave me a letter saying take it off the air.” (Like the unsanctioned iPod Mini commercial, however, it drew the kind of added exposure that publicists call “earned media” - free exposure in the news pages of newspapers like The National Post in Toronto and The New York Post.)

[...] “If Madison Avenue is no longer the evangelist for creative thinking in America, then somebody has to take up that cause,” Mr. Webber said. “That is the calling of all creative people, not just people who work for ad agencies.” Mr. Webber has another motive for wanting to see Coke sales rise: he owns stock in the company. But he is a longtime agency creative executive as well, who helped develop, among other campaign themes, “I am stuck on Band-Aid.”

James B. Twitchell, professor of English and advertising at the University of Florida in Gainesville, agreed that the cultural power of advertising made it hard for creative people to ignore. “If I want to be creative, that’s the place I’m going to go,” he said. “It’s not so much that I want to sell the product, or even care about the product, but it’s where our shared storehouse of stories is.”

Later: the flip side — Marketing’s Flip Side: The ‘Determined Detractor’

“One determined detractor can do as much damage as 100,000 positive mentions can do good,” said Paul Rand, managing director at Ketchum Midwest in Chicago, part of the Omnicom Group. “In the same way that we need to understand who the positive influencers are, it is becoming even more critical to identify and manage determined detractors.”

“The technology puts the power of the press into the hands of the everyman,” he added.

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SJMNews on Supreme Court and (c) [11:57 am]

Innovation vs. copyright [via How Appealing] [pdf]

The Betamax decision unloosed a torrent of innovation, from iPod to TiVo. However, the digital world of Grokster, in which billions of perfect copies of copyrighted songs are swapped over the Internet, is very different from the analog world of Betamax — and more injurious to studios and recording companies.

It’s time for the court to take a look at the Betamax ruling, to update and clarify but not overturn it. The court’s challenge is to grant copyright holders their rights without giving them a veto over exciting new technologies.

Of course, we can hope that the Court will also remember that new technologies give copyright holders new ways to extract rent from their creations (c.f., cellphone ringtones) — and the policy on copyright has never been that creators are supposed to be able to extract all the rents deriving from their creations — just enough to ensure sufficient incentive to create.

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Got Some Free Time? [9:02 am]

Then feel free to plow through this Slashdot discussion of DRM: Welcome to the Future of DRM Media. Nothing new here, but a look at the glacial rate at which the debate evolves.

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Connection, Please? [8:42 am]

Lawmeme points out that some seem to be using the eBay/Baazee sex-video fracas to push for an Indian DMCA: India plans US model cyber law [pdf]

In the wake of arrest of CEO allegedly for selling MMS clips involving school children on its website, government is planning a special law for fixing the responsibility of the provider of online services or network access or operator of these facilities in such situations.

Based on the Digital Millennium Copyright Act of US, the new law would make a online service provider liable for putting out copyright infringing material on the web. At the same time, every service provider would have to put in place a “responsible person” who could be pointsman to deal with cases of copyright infringing material being posted on the web.

Explaining the rationale for such a law, a senior government official said, “In the MMS case the objectionable clip was put on the website by someone who had access to it and not necessarily the person behind it. It was an infringement of the copyright. Moreover, despite the incident becoming a public knowledge the clip was not removed.” [emphasis added]

“An infringement of copyright?” Now that’s an expansive construction of the notion!

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An Industry At Threat? [8:34 am]

US box office set for record high

Ticket sales at the US box office are predicted to break records this year, with figures expected to reach $9.4 billion, beating 2002’s all-time high.

Overall figures could be dampened by the lack of a Christmas hit like last year’s Oscar-winning Lord of the Rings.

Traditionally, ticket sales during the festive season account for 20% of the annual total.

Although admissions have actually fallen this year, the predicted high is down to increasing ticket prices.

Related: An MPAA “innovation” continues: MPAA Goes After More Bittorrent Site Operators

Also related, albeit a little unnerving — a look at movie promotion: Next Stop, Bethlehem?

[Paul] Lauer’s firm, Motive Entertainment, is best known for coordinating the faith-based marketing of The Passion of the Christ. Motive helped spread early word of mouth about the film by holding screenings for church groups and talking the movie up to religious leaders. When The Passion took in a stunning $370 million at the box office, making it the highest-grossing R-rated film in history, Lauer and his cohorts got a lot of the credit. Earlier this year, Motive was hired by Warner Bros. to promote The Polar Express to Christians. But wait, is The Polar Express an evangelical film?

You’d certainly think so, considering the expansive campaign of preview screenings, radio promotion, DVDs, and online resources that Lauer unfurled in the Christian media this fall. This Polar Express downloads page includes endorsements from pastors and links to church and parenting resources hosted by the Christian media outlet HomeWord. There are suggestions for faith-building activities and a family Bible-study guide that notes, for example, the Boy’s Christ-like struggle to get the Girl a train ticket. “The Boy risked it all to recover the ticket,” the guide observes. “Jesus gave His all to save us from the penalty of our sins.”

[...] After a slow start, The Polar Express has picked up steam and may well make back its $165 million production budget. Considering his track record, Lauer might see a lot more work coming his way. He’s already started planning for his next major project, a big-budget adaptation of The Chronicles of Narnia. Lauer describes the movie as The Lord of the Rings meets the Bible. Now, that’s something everyone can believe in.

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Something That Needs Fixing [8:24 am]

What a summation to The FCC Frenzy Over Your Cable Box! [pdf]

But as we get deeper into the digital age, these kinds of industry battles are only going to grow more numerous.

Trying to spur innovation and ensure competition when those who control the plumbing have so much power is no easy matter.

The lawyers and lobbyists, it seems, are the only sure winners.

Fantastic to see the problem expressed so well and clearly!

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OT: Technology Reshaping Value [8:08 am]

This story, Bereaved Cat Owner Gets $50,000 Clone, is a perfect continuation of the issues raised in Burkhard Bilger’s The Last Meow (local copy), an article we’ve assigned to TPP students in the past.

Slashdot discussion: Re-Pet a Reality

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Michael Powell’s Evolving Positions [7:50 am]

Indecency on the Air, Evolution Atop the F.C.C.

As Mr. Powell nears the end of his time in office, critics say he has evolved into the most heavy-handed enforcer of speech restrictions in decades. But with Mr. Powell now widely expected to step down, they are hardly gloating about the prospect of his departure; the short list of candidates to succeed him includes another Republican member of the five-person commission, Kevin J. Martin, who - echoing those who say television is too tawdry - has repeatedly argued that the commission and Mr. Powell are not tough enough.

But the broadcasters are also beginning to fight back. In recent weeks, the industry and its supporters - including the screenwriters’, actors’ and directors’ guilds and the American Civil Liberties Union - have filed a series of briefs contending that the commission’s indecency decisions are inconsistent, vague and unconstitutional.

And the Media Institute, which gave Mr. Powell that award five years ago, when he was a commission member, has posted lengthy commentaries on its Web site saying that under him the commission has chilled speech in violation of the First Amendment. [...]

[...] A close reading of Mr. Powell’s speeches and statements over the last six years suggests, however, that his views have evolved. Once an unbridled libertarian who championed the abolition of restrictions and expressed little confidence in the government’s ability to oversee the media, Mr. Powell, 41, has become an aggressive enforcer who has expanded restrictions on broadcasters.

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The MS EU Decision and Patents [7:45 am]

How Microsoft played the patent card, and failed (also discussed at Groklaw)

Microsoft argued that the communication protocols were protected by copyright under the Berne Convention. It also argued that communications protocols were covered by patents either granted, applied for, or that it intended to file before June next year. It specified three in particular, covering DFS, SMB and DCOM.

[...] But Judge Vesterdorf rejected all of the arguments. Microsoft’s lawyers had misread the Berne Convention, inventing a “right of disclosure” that didn’t exist in the treaty. “At most the right of disclosure is a moral right which cannot be licensed,” he added. Microsoft had also misread the European Council’s Directive 91/250, which is the bit of EU law that establishes computer software as literary works and defines the holders’ rights. He bluntly rejected the claim that server-to-server interfaces would be disclosed, and that the protocol documentation represented an early stage design document.

[...] In other words, if Microsoft sincerely believed that its IP had been violated, it would have cried foul already. The fact that it hasn’t, after several years, significantly weakened its argument. Now not every Judge in every courtroom in the world can be relied on to follow such logic, but the fact that an important judge in an important case did should cause some cheer in the open source community.

The Judge even felt it necessary to record a claim by the Free Software Foundation of Europe that found “… a number of incompatibilities deliberately introduced in pre-existing protocols and then altering them with the aim of prohibiting interoperability.”

Summing up, Vesterdorf decided that that competition would be better served by documenting the protocols.

“There are significant possibilities for product differentiation which could enhance competition but which at present are neutralized by Microsoft’s conduct.”

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