Experimentation

Musicians Find New Backers as Labels Lose Power

[W]ith the structure of the music business shifting radically, some industry iconoclasts are sidestepping the music giants and inventing new ways for artists to make and market their music — without ever signing a traditional recording contract.

The latest effort comes from Brian Message, manager of the alternative band Radiohead, which gave away its last album, “In Rainbows,” on the Internet. His venture, called Polyphonic, which was announced this month, will look to invest a few hundred thousand dollars in new and rising artists who are not signed to record deals and then help them create their own direct links to audiences over the Internet.

“Artists are at the point where they realize going back to the old model doesn’t make any sense,” Mr. Message said. “There is a hunger for a new way of doing things.”

A Notable Obit In Today’s Paper

William C. Conner, 89, Judge Known for First Amendment Rulings, Dies (pdf)

Judge Conner’s expertise in intellectual property issues was the principal reason he was given responsibility in the mid-1970s for overseeing a 1941 consent order governing the activities of Ascap, which represents songwriters and music publishers in royalty and other matters. Under the order, the federal government and Ascap — an acronym for the American Society of Composers, Authors and Publishers — agreed to put Ascap’s dealings under the supervision of the federal court in Manhattan to settle an antitrust suit.

Judge Conner in 2004 approved a new deal for Ascap’s licensing of songs to radio stations. The pact is estimated to have increased payments to composers and publishers by $1.7 billion since 2001.

In 2007, Judge Conner vetoed an Ascap request to classify digital downloads as performances; the designation would have given songwriters an extra royalty. Last year, he turned down Ascap’s request to get 3 percent of revenues from songs streamed over AOL, Yahoo and RealNetworks. Instead, he decreed 2.5 percent.

[…] The Marx Brothers case in 1981 involved the Broadway show “A Day in Hollywood/A Night in the Ukraine.” Heirs of the Marx Brothers’ contended that the show had illegally appropriated the names and likenesses of Groucho, Harpo and Chico Marx. Judge Conner said that publicity rights held by the brothers, all of whom had died, trumped the producers’ First Amendment claims. The ruling was reversed by the United States Court of Appeals for the Second Circuit.

Later: A related op-ed on the role of the courts in intellectual discource — The Day Obscenity Became Art

Looking over the Roth decision, Rembar spotted a loophole. The opinion, written by Justice William J. Brennan, noted that the First Amendment’s purpose was “to assure unfettered interchange of ideas” and that “all ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guarantees.” But, Brennan went on, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

Rembar mulled over a question that Brennan apparently hadn’t considered: What if a book met the standards of obscenity yet also presented ideas of “redeeming social importance”? By Brennan’s logic, wouldn’t it qualify for the First Amendment’s protection after all?

On a sheet of paper, Rembar drew two slightly overlapping circles. He labeled one circle “Material appealing to prurient interests.” He labeled the other “Material utterly without social importance.” By Brennan’s reasoning, only material that fell inside both circles — that was both prurient and worthless — should be denied the privileges of free speech.

This was the argument that Rembar made before Judge Frederick van Pelt Bryan of the United States District Court for the Southern District of New York. […]

Where would we be without the “new math” education?

“Z” on Life in “The Cloud”

Articulating the real gaps in law and policy that stand in the way — and one latent threat: Op-Ed Contributor – Lost in the Cloud (pdf)

[…] Chrome moves us further away from running code and storing our information on our own PCs toward doing everything online — also known as in “the cloud” — using whatever device is at hand.

Many people consider this development to be as sensible and inevitable as the move from answering machines to voicemail. With your stuff in the cloud, it’s not a catastrophe to lose your laptop, any more than losing your glasses would permanently destroy your vision. In addition, as more and more of our information is gathered from and shared with others — through Facebook, MySpace or Twitter — having it all online can make a lot of sense.

The cloud, however, comes with real dangers.

[…] [T]he most difficult challenge — both to grasp and to solve — of the cloud is its effect on our freedom to innovate. The crucial legacy of the personal computer is that anyone can write code for it and give or sell that code to you — and the vendors of the PC and its operating system have no more to say about it than your phone company does about which answering machine you decide to buy. Microsoft might want you to run Word and Internet Explorer, but those had better be good products or you’ll switch with a few mouse clicks to OpenOffice orFirefox.

Promoting competition is only the tip of the iceberg — there are also the thousands of applications so novel that they don’t yet compete with anything. These tend to be produced by tinkerers and hackers. Instant messaging, peer-to-peer file sharing and the Web itself all exist thanks to people out in left field, often writing for fun rather than money, who are able to tempt the rest of us to try out what they’ve done.

This freedom is at risk in the cloud, where the vendor of a platform has much more control over whether and how to let others write new software. […]

Coming To Grips With Reality?

Music Industry Lures ‘Casual’ Pirates to Legal Sites (pdf)

Record company executives say there are three kinds of music fans. There are those who buy music, and those who get a kick out of never paying for it. And then there are those whom Rob Wells at Universal Music Group calls “dinner party pirates”: the vast majority of listeners, those who copy music illegally because it is more convenient than buying it.

If those low-level copyright cheats could be converted to using legal music services, the digital music business would get much-needed help. Yet even industry executives acknowledge that until recently, they were not giving those listeners many ways to do what they wanted: to sample new music and to play it back anytime, at little or no cost.

Related, stemming, in part, from the announced closing of the local rock institution, WBCN: Young listeners tune out radio in search for new music (pdf)

Technological Mediation and Digital Books

Amazon Erases Orwell Books From Kindle Devices (pdf)

In a move that angered customers and generated waves of online pique, Amazon remotely deleted some digital editions of the books from the Kindle devices of readers who had bought them.

An Amazon spokesman, Drew Herdener, said in an e-mail message that the books were added to the Kindle store by a company that did not have rights to them, using a self-service function. “When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers,” he said.

Amazon effectively acknowledged that the deletions were a bad idea. “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances,” Mr. Herdener said.

And then a copyright holder will take Amazon to court for having knowingly engineered a product that makes it hard to enforce copyright. And, if the Aimster decision is still binding precedent, they’ll probably lose.

Later: Farhad Manjoo takes it all the way — Why 2024 Will Be Like Nineteen Eighty-Four: How Amazon’s remote deletion of e-books from the Kindle paves the way for book-banning’s digital future.

The worst thing about this story isn’t Amazon’s conduct; it’s the company’s technical capabilities. Now we know that Amazon can delete anything it wants from your electronic reader. That’s an awesome power, and Amazon’s justification in this instance is beside the point. As our media libraries get converted to 1’s and 0’s, we are at risk of losing what we take for granted today: full ownership of our book and music and movie collections.

Control and Architecture

Apple disables iTunes sync feature on Palm Pre (pdf)

Apple Inc. has shut down one of the most compelling features on Palm Inc.’s rival Pre smart phone, crippling the Pre’s ability to act like an iPod.

Users of the recently released Pre had been able to put music on it by using Apple’s free iTunes software — a unique twist for a device not made by Apple. But Apple updated iTunes on Wednesday to block this feature.

Apple spokesman Tom Neumayr said the update “disables devices falsely pretending to be iPods, including the Palm Pre.”

[…] The iTunes software smackdown is the latest example of tensions brewing between Apple and Palm, which since June has been led by the former executive behind the iPod, Jon Rubinstein. Rubinstein became Palm’s executive chairman in October 2007.

E-Book Distribution, Pricing and Sales

When to Schedule E-Book Releases – A New Worry for Publishers (pdf)

No topic is more hotly debated in book circles at the moment than the timing, pricing and ultimate impact of e-books on the financial health of publishers and retailers. Publishers are grappling with e-book release dates partly because they are trying to understand how digital editions affect demand for hardcover books. A hardcover typically sells for anywhere from $25 to $35, while the most common price for an e-book has quickly become $9.99.

Amazon.com, which sells electronic editions for its Kindle device, has effectively made $9.99 the de facto price for most best sellers, a price that publishers believe will reduce their profit margins over time. Barnes & Noble, through its Fictionwise arm, also sells best sellers in e-book form, for $9.95.

Ms. Herz said that Doubleday was primarily worried about the security of Mr. Brown’s book, which is being kept under a strict embargo until the Sept. 15 publication date. But she acknowledged that the e-book’s possible effect on hardcover sales was also an issue, among others.

Similarly, Stephen King, whose novel “Under the Dome” is being published in November by Scribner, an imprint of Simon & Schuster, said in an e-mail message that “we’re all thinking and talking about electronic publishing and how to deal with these issues,” adding, “but I can’t say anything right now.”

Later, in Slate: Does the Book Industry Want To Get Napstered?

What has kept illegal e-books from taking off? First, all the electronic reading gadgets on the market are subpar, if you ask me, making the reading of books, newspapers, magazines, and even cereal boxes painful. […] Second, the hassle factor is too great. […] Third, not all bootlegged e-books are created equal. […] If a nicely produced Kindle version of The Telephone Booth Indian that doesn’t have to be monkeyed around with can be easily nabbed for $9.99, which it can, why bother breaking the law to obtain an inferior edition for display on a rotten device? It’s like using an acetylene torch to loot a kid’s piggy bank.

[…] So far, few consumers think books should be free—a fact that I attribute to the klugy Kindle and its affordable Amazon store. I conducted an informal census of friends and associates who read lots of books, and I found none who partake of the bootlegged variety. But that could change in a matter of months if the book industry insists on 1) jacking up the price of e-books and 2) withholding potential best-sellers from the e-book market. Cool devices that make electronic reading painless are just around the corner, and the e-book market is about to explode. If publishers insist on pushing prices too high and curbing availability, consumers could rebel—as they did with the sharing of MP3s—and normalize the trafficking of infringing e-books.

My sense that not all publishers understand their readers is shared by Forrester Research analyst Sarah Rotman Epps. “Publishers are in denial about the economics of digital content,” she told the Wall Street Journal this month. “What we’ve seen in other industries and in the evolution of digital content is that consumers are not willing to pay as much for content that is separated from its physical medium.”

“I’m Shocked! Shocked!”

Report Says Wiretaps Got Too Little Legal Review (pdf)

The warrantless surveillance program approved by President George W. Bush after the Sept. 11 attacks received too little legal review at its inception and its ultimate effectiveness was unclear, according to an in-depth review released Friday by the inspectors general of five federal agencies.

[…] The wiretapping program was first disclosed by The New York Times in December 2005, 13 months after the White House urged the newspaper not to publish the article because it said the disclosure would harm national security.

The disclosure set off a furious debate that continued through the end of the Bush administration on presidential power in a time of war, the separation of powers, federal wiretapping powers, and state secrets.

[…] Since Mr. Obama took office, his administration has used many of the same legal tactics as the Bush administration, including the assertion of a “state privelege” claim, to try to quash legal challenges to the program in federal court.

The NYTimes offers a link to the document; I can’t get an original link from the ODNI yet.