July 31, 2005

More on the NYC Payola Settlement [9:33 pm]

How Payola Went Corporate

And so goes the latest version of payola, the illegal trading of secret payments in exchange for airplay. Attempts to game the system are nearly as old as the industry itself. “Song pluggers” urged certain songs on big band leaders in the 1930’s and 40’s, accompanied by bundles of cash to make the musical choice easier. Disc jockeys in the 1950’s were handed cash bribes or fur coats for their wives. The independent promoters of the late 1970’s and 1980’s plied station directors with drugs and prostitutes.

The latest scandal to hit the music business shows that just as the industry has turned corporate in recent decades, so too has its underbelly. Documents ferreted out by investigators for Attorney General Eliot Spitzer of New York show that executives at Sony BMG Music Entertainment’s labels (including Epic) concocted their deals with some of the biggest commercial radio chains in the country. Last week, the company acknowledged its improper promotional practices and agreed to pay a $10 million fine.

The scandal also offers a reminder that, in important ways, little in the business has changed. The record labels still try to curry favor with station programmers, even though traditional radio is less powerful than it has been for decades, as satellite and Internet radio, as well as devices like iPods, give music lovers more control over what they listen to.

But commercial radio still dwarfs its competitors and retains its singular ability to mint hit records. And the record business is hit-driven.

Later: related F.C.C. to Scrutinize ‘Pay to Play’ in Radio

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Turning to the Web For TV [9:28 pm]

And turning the Web into TV? More People Turn to the Web to Watch TV

It looks like that future may well be by way of the computer, as big media and Internet companies develop new Web-based video programming and advertising that is truly under the command of the viewer. As Americans grow more comfortable watching programs online, Internet programming is beginning to combine the interactivity and immediacy of the Web with the alluring engagement of television.

[...] For all of them, and many more media and Internet companies, investing in new Internet video programming is a way to cash in on the demands of advertisers who want to put their commercials on computer screens, where new viewers are watching. And on many Web sites, viewers can’t skip the video commercials, the way they can when using TiVo and other video recorders.

[...] An Internet commercial typically costs about $15 to $20 for each 1,000 viewers, nearly as much as broadcast networks charge. The price is high because there is more demand from advertisers than there is Internet video programming available. Broadband Enterprises estimates about $200 million will be spent on Internet video this year, up from $75 million last year. That pales in comparison to the $65 billion or so spent on broadcast and cable television advertising, but it is growing faster.

While much of the development of Internet video is now being driven by advertising, there is a growing crop of pay-per-view and subscription video services.

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The Online Arms Race, Continued [9:18 pm]

New File-Sharing Techniques Are Likely to Test Court Decision

At a computer security conference in Las Vegas on Thursday, an Irish software designer [FreeNet's Ian Clarke] described a new version of a peer-to-peer file-sharing system that he says will make it easier to share digital information anonymously and make detection by corporations and governments far more difficult.

Others have described similar efforts to build a so-called darknet that aims to shield the identities of those sharing information. The issue is complicated by the fact that the small group of technologists designing the new systems say their goal is to create tools to circumvent censorship and political repression - not to abet copyright violation.

Such a stand is certain to test the impact of the Supreme Court ruling in June against Grokster and StreamCast Networks, publishers of peer-to-peer file-sharing software, a number of legal specialists and industry executives said.

Clarke’s slides clarke's last slide

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Software Patents-No! [7:46 pm]

A nice background summary tale of software patents: Why Bill Gates Wants 3,000 New Patents

I have not seen the software in use. But if I were in a position to make a ruling, and even if I accepted the originality claim on its face, I would process these swiftly: Rejected.

Microsoft’s other pending applications - 3,368 at last count - should receive the same treatment. And while tidying up, let’s also toss out the 3,955 patents that Microsoft has already been issued.

Perhaps that is going too far. Certainly, we should go through the lot and reinstate the occasional invention embodied in hardware. But patent protection for software? No. Not for Microsoft, nor for anyone else.

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July 29, 2005

Ugh [7:20 pm]

Missed this: Senators Grill P2P Providers

[Sen. Ted] Stevens closed the hearing by threatening to introduce bipartisan legislation if P2P companies don’t do something to stop piracy on their networks.

“If you don’t do it, I’m going to move over and meet with Sen. Boxer on this,” he said. “We’ve got to find some way to meet this concept of protecting our intellectual property. We can hardly accuse the people abroad of stealing our intellectual property if we can’t protect it at home.”

The hearing site: Issues Related to MGM v. Grokster; Washington Post’s Senator Threatens Crackdown on File-Sharing Industry [pdf]

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A Little Common Sense [1:18 pm]

‘San Andreas’ Rocks the ‘Righteous’ [pdf]

So — the justification for this use of our tax dollars is that Take Two misled the public by promising a game featuring enough violence to make Sam Peckinpah blush, but instead sprinkled it with near-hardcore pornography. (I use “near” as there isn’t any display of genitalia, at least as far as I could see. And it’s a cartoon graphic, not real people…)

Good heavens, citizens! What’s going on here? Oh yes, of course, we’re getting all bent out of shape over nothing again. I keep forgetting that this is a proud American tradition, on the same display shelf as the controversy over “Darling Nikki” and the fuss over video games in general from the early ’80s. I bet some of the folks who thought our children’s brains were turning to mush over too much “Centipede” aren’t looking at it this way today.

I’m going to echo the refrain that you’d expect from thirtysomethings like me who don’t have children to protect: I don’t like the sex and violence of the GTA series. As a result, I do what anyone capable of making decisions does: I don’t play it.

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Movies and Remix Culture [1:09 pm]

An art review: A Medium in the Making: Slicing Familiar Films Into Something New

Movie-loving artists divide roughly into two groups, fans and users. The fans flock to films, or the nearest video rental store, for both respite and inspiration; they discuss and sometimes write about what they see with distinctive intelligence. Their numbers are legion; their apotheosis is probably Manny Farber, the artist who had a distinguished career as a film critic before turning to painting full time.

The users are such impassioned, if not addicted, cinephiles that movies become the central component of their art. Films are not just inspiration for these artists; they are raw material that can be appropriated, manipulated and reshaped into another work of art, with their names on the credit line.

[...] Still, “CUT” brings needed curatorial clarity to an expanding genre that is challenging to survey. The catalog provides an expansive backdrop by flanking Mr. Basilico’s lucid discussion of the works with essays by Rob Yeo, on the history of film appropriation in underground film (starting with Joseph Cornell), and by Lawrence Lessig, on the creative chill that recent changes in copyright law are bringing to the arts.

You come away from this show with a new sense of film as a found object; as an immense reservoir of untapped form and feeling; and as a highly charged raw material by which artists can celebrate, examine and stave off the deluge of images bearing down on us from all sides.

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Two NYTimes OpEds on Payola and the Music Biz [1:07 pm]

  • The current situation with a look at record contracts: The Price of Fame [pdf]

    Payola gets a song on the radio. If it becomes a hit, radio works it to death. In this day of consolidated radio ownership and programming, my friend suggests, eliminating payola could mean that commercial stations would become even more monotonous, if that can be imagined.

    To my mind, however, the difficulty of picturing a world beyond payola is reason enough to cheer Eliot Spitzer along. Payola restricts access to the public airways; only artists whose labels are willing and able to pay get played. Listeners who might enjoy something else won’t hear it from stations on the take. And when fans go to the record store, they’ll find that payola has driven up the price of CD’s.

    By the end of our three-album run with MCA, Semisonic had sold close to two million records, but we were a long way from recouping the costs of radio promotion. Thus musicians, even some who have benefited from payola, will applaud Mr. Spitzer, even as they wonder what chance he has of bringing about vast structural reform. Knowing what it takes to get their songs on the radio and watching their share of record sales swallowed up along the way, most recording artists would love to see the current system brought down, even if they can’t imagine what would replace it.

  • A little history: Broken Record [pdf]

    Music professionals have always agreed that hits cannot be bought. To this day, when a label backs the wrong song, it loses money. Moreover, systems of “bribery” analogous to payola operate in many retail markets. Most supermarket chains, for example, make a chunk of their revenue from “slotting fees,” which are the rents that food distributors pay them for shelf space. That such rents are paid says nothing about the flavor or nutritional value of any given item on the shelves. Where music is concerned, however, the concept of payola somehow seems intuitively revolting.

    Yet, like it not, every popular song you’ve ever loved has reached you via some chain of pay-for-play machinations. The technological landscape has changed over time, as have the laws supposedly governing music promotion, but payola has been as constant and pervasive a force as gravity for more than a century now. A rational set of regulations would probably acknowledge this reality and aim at leveling the playing field so that small players can compete against big ones, just as they used to do in the early heyday of rock ‘n’ roll, when tiny labels like Sun briefly had the likes of RCA on the ropes.

    Mr. Spitzer is doing his duty by enforcing the existing laws. But he might want to at least acknowledge that earlier attempts to kill payola, when they had any effect at all, have tended to leave the beast stronger.

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July 27, 2005

Again, Why Is Downloading Bad? [4:06 pm]

A little fuel for the fire: Downloading ‘myths’ challenged

People who illegally share music files online are also big spenders on legal music downloads, research suggests.

Digital music research firm The Leading Question found that they spent four and a half times more on paid-for music downloads than average fans.

Rather than taking legal action against downloaders, the music industry needs

Some other links: - from The Leading Question - Music pirates spend four and a half times more on legitimate music downloads than average fans; Digital music will not kill the radio star; The Guardian’s report, Online filesharers ‘buy more music’

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New Telecom Bill Proposal [3:55 pm]

U.S. senator unveils bill that aids phone carriers [pdf]

[Sen. John] Ensign, a Nevada Republican and chairman of the Senate Commerce subcommittee on technology, innovation and competitiveness, called his 72-page bill a starting point as Congress considers overhauling the 1996 Telecommunications Act that aimed to promote competition in voice services.

“Changes in technology necessitate that we update these rules if America is going to be competitive in the face of global competition,” he told reporters, pointing to rankings that the United States has slipped to as low as 16th in the world for deploying high-speed Internet service, known as broadband.

Under the bill, companies that want to offer video service would no longer have to get permission from local or state officials, a boon to companies like Verizon Communications and SBC Communications Inc., which are rolling out video.

It would also eliminate requirements in 2011 that the four big local telephone companies, known as the Baby Bells and includes Verizon and SBC, resell their phone service to other competitors at regulated rates or have to make parts of their existing copper networks available to competitors.

Senator Ensign’s press release on The Broadband Consumer Choice Act of 2005.

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Convergence [2:13 pm]

XM, Napster to sell music heard on satellite radio [pdf]

XM Satellite Radio and digital music provider

Napster Inc. on Wednesday said they would launch a service that lets XM subscribers buy music they hear on XM radio, sending Napster shares up 7 percent.

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Too Busy Hunting For The Real Killers… [6:47 am]

..To pay his DirectTV bill. And, to think, a movie star caught “stealing signal:” O.J. Simpson Is Ordered to Pay DirecTV in Signal-Theft Case [pdf]

The satellite TV giant on Tuesday was referring to its civil court victory in which a Florida judge ordered Simpson to pay $25,000 for allegedly stealing its signals.

The case stems from the recovery in 2001 of two “bootloaders” in Simpson’s home that allowed viewers to tap into DirecTV signals without paying for them.

“This ruling serves as a reminder that there are consequences to signal theft, whether you’re O.J. Simpson or John Q. Public,” said Dan Fawcett, the company’s executive vice president of legal and business affairs.

Simpson’s lawyer, Yale Galanter, said his client would appeal the judge’s ruling.

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Digital Shift In Movies Set, Except For Who Pays [6:44 am]

Talk about an “unfunded mandate:” Studios Settle on Technical Standards for Digital Shift [pdf]

Hollywood’s major studios have hammered out technical standards for digital movies, capping a three-year effort intended to save millions in distribution costs, enhance picture quality and increase anti-piracy protections.

The agreement, to be announced today in Beverly Hills by a consortium of seven studios, does not detail who will pick up the tab for changing from film to digital projection, according to studio sources familiar with the discussions.

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July 26, 2005

Unified EFI; DRM By Any Other Name…. [4:33 pm]

The Slashdot discussion, UEFI Formed to Replace BIOS, on the formation of the Unified EFI Forum, is largely focused on the presumption that the use of this BIOS replacement technology, instead of OpenFirmware, is all about jamming DRM/Trusted Computing down everyone’s throat.

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Spitzer Gets A Payola Settlement [7:40 am]

Paying a Price [pdf]

When executives at Sony BMG needed to drum up support in 2002 for Jennifer Lopez’s album “This Is Me … Then,” they called the program director of a San Diego radio station and offered her a 32-inch plasma TV in exchange for adding the artist’s songs to her play list.

Sony BMG Music Entertainment knew such payola, or “pay-for-play,” was improper. Nonetheless, the company asked the programmer to provide a fictitious contest winner’s name and Social Security number to cover up her involvement.

[...] The alleged exchange was disclosed in a treasure trove of e-mails, BlackBerry messages and other documents made public Monday by New York Atty. Gen. Eliot Spitzer. That electronic paper trail led the second-largest music company to a $10-million settlement.

[...] Sony BMG, home to such artists as Tony Bennett and the Dixie Chicks, promised Monday not to pay radio stations in exchange for airplay. The company issued a formal statement acknowledging that “various employees pursued some radio promotion practices on behalf of the company that were wrong and improper.” The company also fired an executive vice president of promotions at one of its labels.

Related: the current fortunes of a distinctly non-payola radio format - Jack lures fans by not saying much [pdf]

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Dvorak: Fundamentally Foolish or Purposely Obtuse? [7:29 am]

Having dealt with John Dvorak before, I can’t believe he really is as purposely obtuse as he makes himself out to be in his July 18th column — Creative Commons Humbug. I can’t imagine that he’s failed to see just how hard it is to get “fair use,” given that “fair use” is something that only exists as a courtroom decision. For example:

Before Creative Commons I could always ask to reuse or mirror something. And that has not changed. And I could always use excerpts for commercial or noncommercial purposes. It’s called fair use. I can still do that, but Creative Commons seems to hint that with its license means that I cannot.

What??! Talk about missing the point — maybe he should try to read just a little about the topic, before asking to be spoon-fed by others.

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I’m Back! [7:15 am]

Sorry - lots of catching up to do — been away a week with some odd server interactions, possibly between my RSS reader and the OS, so I don’t have much of an archive to work through.

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July 19, 2005

Thoughts on EFF’s 15th [3:28 pm]

“You can’t do that.”

It was my second year of graduate school and, after much arm-twisting, I had agreed to go “halves” with a dorm-mate on a newfangled consumer good - an Apple ][+. After turning my back on computing in my sophomore year, (concluding that it was fun to learn about programming, but that it wasn’t really something I expected to be regularly involved in) I had been told that, with this investment in a “personal computer,” we would be able to stop paying MIT secretaries to word process our papers and do it ourselves.

With our budget constraint, we made what proved to be a fateful decision. A real printer was simply beyond our means — instead, we decided to buy a less-expensive modem and just use the teletype/dot matrix printer in my dorm-mate’s lab. It had an acoustic coupler and, after all, we were at MIT with all sorts of computing support. I’d just ask for the information and that would be it.

Instead, I got the surly “You can’t do that” that is familiar to anyone who’s dealt with technical support from a position of weakness/ignorance. Given the need to recoup our investment, I took that declaration as a challenge and, after months of learning, trial & error and a lot of work, I showed that, in fact, tech “support” was wrong — you could “do that.” Printed a thesis or two that way as proof, in fact.

I live with the fallout of that decision every day - I’ve learned more about computers than I ever thought I would, and I use it every day. In this, my sophomore self was completely wrong — something that should be no surprise to anyone who’s ever had to deal with one.

As computers have insinuated themselves into our lives, more and more people have developed the same level, if not kind, of facility with computers that I did. Some write programs, some create art, some do their jobs and some just use them to have fun.

Yet, while computers and their associated digital technologies have become more accessible, there are still those who seek to assert control over the ways in which the technology gets used - frequently while also asserting that no one should be able to examine (much less control) the uses to which they themselves will put these technologies — “No, no. You can’t do that.”

Asymmetries like that should be unsustainable in free societies. Society may decide that there are technologies that should be controlled - but society should get to decide. Not a subset; not just the wealthy, or the powerful, or the technologically savvy. Everyone needs to be informed and involved.

Institutions like the EFF help to fulfill this vital role, raising the questions, challenging the authorities and educating the public — not just informing, but also leading when the opportunity arises — fulfilling Jefferson’s insistence that the success of republic depends upon an informed electorate.

EFF — congratulations on fifteen years of accomplishment, and here’s hoping there will be many more!

Blog-a-thon tag:

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Community Development [10:58 am]

Beethoven’s rarest works re-created online

In a little-trafficked corner of the Web, a pair of classical music enthusiasts has spent half a decade obsessively re-creating hundreds of obscure pieces by Ludwig van Beethoven.

[...] [Mark] Zimmer and [Willem] Holsbergen are part of a growing community of amateurs and semiprofessionals who are using the Net and other digital tools to bring classical music out of concert halls and academies, hoping to popularize it with the democratizing force of the Internet.

The evidence may not be visible yet in classical music sales, which, at about 3 percent of the market, are a sliver of pop music sales. Yet the energy is palpable, on interlocking blogs from ordinary music fans and from the New Yorker magazine’s music critic, in the classical stations programmed by home disc jockeys on services such as Live 365, and in the eager amateur criticism accompanying this spring’s Webcast of the Van Cliburn piano competitions.

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More on Canada’s Pending (c) Bill [8:18 am]

In Canada: Cache a page, go to jail?

A bill before Canada’s Parliament could make it illegal for search engines to cache Web pages, critics say, opening the door to unwarranted lawsuits and potentially hindering public access to information.

The legislation in question, Bill C-60, is designed to amend Canada’s Copyright Act by implementing parts of the 1996 World Intellectual Property Organization treaty, the treaty that led to the Digital Millennium Copyright Act in the U.S.

Set for debate and an initial vote in the House of Commons after Parliament’s summer break, C-60 addresses things such as file-sharing, anticopying devices and the liability of Internet service providers and would tighten the Copyright Act in ways favorable to record labels and movie studios.

But according to Howard Knopf, a copyright attorney at the Ottawa firm of Macera & Jarzyna, a brief passage in the bill could mean trouble for search engines and other companies that archive or cache Web content.

“The way it reads, arguably what they’re saying is that the very act of making a reproduction by way of caching is illegal,” Knopf said.

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