Additions To My Reading List

CoCo points to Olufunmilayo Arewa’s “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context” (December 2004). Case Legal Studies Research Paper No. 04-21,” which certainly merits a look, but a footnote in the early part points to a topic that Arewa refers to, but elects not to pursue, that looks equally striking – Michael Carroll’s “Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property — Part I” (a paper is “forthcoming” in the University of Cincinnati Law Review). The abstract is enticing:

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle Ages, when musicians’ guilds enjoyed the exclusive right to perform music in medieval cities, but that the concept of music as a form of property was not established until early music publishers received exclusive rights in their publications during the Renaissance. The Article concludes with thoughts about how this history should influence the way we address the current controversy concerning uses of music on the Internet.

Even later (p.97), a few hints at alienation concepts close to my own heart:

To determine whether the concept of property in music that vests initially with the composer or authors of the sound recording will continue to make sense, we should consider the new possibilities. First we should consider whether we relate, or want to relate, to music as an intersubjective experience shared among composer, performer, and listener, and mediated through the digital object of recorded music, or do we as listeners interrelate with recorded music as object only. Then we should ask whether property in music is the appropriate legal framework to structure that relationship.

In 2003, intersubjective relations appear essential for at least some sorts of music. With most popular music, the persona of the music’s composers and performers plays as important a role now in how audiences receive the music as it did when Renaissance publishers first began touting the credentials of their composers. The same can be said for composer-audience relations with respect to classical music and most jazz. But some forms of instrumental music serve as little more than musical wallpaper, in which the audience’s interest is solely in the qualities of the musical object. Consider the commuter with jangled nerves who tunes in the radio station featuring “Smooth Jazz.” The commuter may well be indifferent to whether the soothing sounds emanated from Kenny G or a Power Mac G5. For such computer-generated music, property rights will not have induced creation of the specific compositions, although property rights may induce creation of the software that generated the composition.

For the foreseeable future, though, changed material conditions seem unlikely to alter our collective preference for at least some human-composed and human-performed music. Our task, in that case, is to assess whether the changed material conditions presented by digital technology, insofar as human musicmaking goes, are sufficiently significant to cause us to abandon or alter our notions of musical property.

RIAA: N+753

Still pushing on the collegiate sales program for Napster et al.: Copyright Infringement Lawsuits Brought Against 753 Additional Illegal File Sharers

Among those sued today are users of computer networks at 11 universities and colleges, including: Hamilton College; Louisiana State University; Louisiana Tech. University; Loyola University Chicago; Ohio University; Old Dominion University; Rennselaer Polytechnic Institute; Texas A&M University; University of Southern California; Vanderbilt University; and Wright State University.

A Look At The Mechanics Of Film Restoration


Nearly a decade into the DVD era, most studios have figured out how to do at least decent digital mastering. Few major-label DVDs these days look bad. What puts Warner Home Video a notch or two (or three) above the rest? I talked with George Feltenstein, senior vice president for Warner’s classic catalog, and Ned Price, VP for technical mastering, as well as a few outside industry specialists. Here’s what I found out.

First, the condition of Warner’s film library is in relatively good shape. As a result of media meltdowns and mergers over the past half-century, Warner Bros. owns not only all the films made under its own studio logo but also all RKO titles and all MGM films made before 1986. (For details, click here.) In the 1960s, long before film preservation became a popular cause, MGM was one of two Hollywood studios–the other was Disney–that decided to preserve all its films. They spent millions of dollars to repair, properly store, and in some cases meticulously restore original negatives, black-and-white nitrates, or duplicate copies. As for Warner Bros.’ own black-and-white classics, original nitrates were long ago donated to the Library of Congress or UCLA, which stored them in temperature-controlled rooms and left them, ever since, untouched. To the extent possible, Warner DVDs have been mastered from the original negatives, preventing degradation in detail, sharpness, color, and contrast.

Then there’s Warner’s work with Technicolor. Even with careful preservation, color negatives fade over time. But Technicolor negatives can look as good as new after decades. This is because Technicolor films consisted of three black-and-white negatives, which ran simultaneously through a special camera.

Deregulation is for Perverts, Apparently

And here I thought that the bedrock of “blue” state political ideology was no regulation and free markets. Howard Stern can run, but he can’t hide, I guess: Senator fights cable ‘indecency’ [pdf]

“Cable is a much greater violator in the indecency area,” the Alaska Republican told the National Association of Broadcasters, which represents most local television affiliates. “I think we have the same power to deal with cable as over-the-air” broadcasters.

“There has to be some standard of decency,” he said.

Stevens told reporters afterward that he would push legislation to apply the standards to cable and satellite radio and television.

Later: Slashdot’s Attempt to Apply Decency Standards to Cable/Satellite Television

Even later: WaPo’s Senator Bids to Extend Indecency Rules to Cable [pdf]

Also, consider this related consequence of regulatory discrimination: a discussion of the growing number of cable channels accepting paid advertising from companies selling distilled spirits, something the broadcast companies currently won’t do: Another Marketing Barrier Falls

Later: Ernest Miller’s thoughts on the constitutionality of this plan: Regulation of Indecency on Cable/Satellite May Be ConstitutionalEmail This Entry

Later: CNet report Senator suggests targeting Net ‘indecency’

Pro-Grokster Musicians Speak Up

Musicians Break With Industry on File Sharing

A prominent group of musicians and artists, breaking with colleagues and the major entertainment studios, is urging the Supreme Court not to hold online file-sharing services responsible for the acts of users who illegally trade songs, movies and software.

The group, which includes representatives of Steve Winwood, rapper Chuck D and the band Heart, said in court papers to be filed today that it condemns the stealing of copyrighted works. But it argues that popular services such as Grokster, Kazaa and others also provide a legal and critical alternative for artists to distribute their material.

“Musicians are not universally united in opposition to peer-to-peer file sharing” as the major records companies claim, according to a draft of the group’s court filing. “To the contrary, many musicians find peer-to-peer technology . . . allows them easily to reach a worldwide online audience. And to many musicians, the benefits of this . . . strongly outweigh the risks of copyright infringement.”

Hmm – not at the EFF site yet

Not entirely pertinent, but here’s Larry Lessig’s interview over at O’Reilly that’s gotten the Pho list all worked up: Remixing Culture: An Interview with Lawrence Lessig

Tickling The Dragon’s Tail

In the early days of nuclear fission research, there used to be a game called “tickling the dragon’s tail,” (a test rig photo) which basically was experimenting with assembling a critical mass by moving fissile materials closer to one another and observing the result. It looks like the DVD patent holders and, more importantly, the copyright industries, are playing their own dangerous game with a no-longer-sleeping dragon: China sends DVD royalties South

In an attempt to woo China back into the fold, the group of manufacturers responsible for setting royalties on DVD discs and equipment has slashed the rates that licensees must pay.

DVD6C, which represents five Japanese manufacturers plus Warner Home Video and IBM, has cut the royalty rate for DVD players and drives by 25 per cent – from $4 to $3 – and the per disc rate by 10 per cent, from 5 cents to 4.5 cents. The rate payable on DVD recordable discs, DVD-R, DVD-RW and DVD-RAM, has also been cut, from 7.5 cents to 6.5 cents. The new rates will apply retroactively from January 1.

Last week China formally adopted its home-grown EVD video disc format as the national standard. EVD means no royalties need be paid to the DVD licensing bodies, and it has the added bonus of playing HD-TV images too. Chinese manufacturer Wuxi is suing the 3C and 6C licensing groups claiming that they’re discriminating against Chinese manufacturers, and the suit seeks to rule the DVD patent pool invalid.

Copyrights Keep TV Shows off DVD

Copyrights Keep TV Shows off DVD — note that the industry is no friendlier internally than it is to those on the outside.

For many TV shows, costs to license the original music for DVD are prohibitively high, so rights owners replace the music with cheaper tunes, much to the irritation of avid fans. And some shows, like WKRP, which is full of music, will probably never make it to DVD because of high licensing costs.

“The indication from the studios is that we may never see (WKRP in Cincinnati) because of all the music that would have to be licensed,” said David Lambert, news director of, a clearinghouse of information on TV shows released on DVD. “As the DJ spins the record as he’s talking to Loni Anderson, if there is music playing even for a couple of seconds, then the people producing the DVDs would have to license it.”

[…] “I think the studios are a bit shortsighted,” Lambert said. “A lot of fans — if they understood the situation — would gladly wait a little longer and pay a little more to get the complete, original version.”

[…] Navigating music licensing issues can be more difficult for shows where the music experience is central. The producers of one current show, American Dreams, went to extraordinary lengths to prepare the show for DVD.