US Export Growth

Of course, I assume the RIAA has secured the relevant business method patent on this approach: File-sharing lawsuits go abroad (IFPI press release)

The International Federation of the Phonographic Industry, a worldwide recording industry association, announced on Tuesday its initial round of lawsuits against individuals whom it asserts illegally share files of copyrighted music. The 247 suits against alleged that file sharers in Denmark, Germany, Italy and Canada mirror similar action by the Recording Industry Association of America–the results of which have gotten mixed reviews from analysts and researchers.

The IFPI said it plans to bring additional lawsuits in other countries over the coming months, after filing criminal complaints in Italy and Germany, and civil litigation in Canada and Denmark.

Here’s an excerpt to parse from Statement by Jay Berman, Chairman and CEO of IFPI

Ultimately, though, we have learned that education alone is not sufficient, and that some people persist because, like shop-lifters, they think they can ‘get away with it’. So we have decided that only the prospect of legal action is going to make those people rethink what they are doing.

Today we are making it clear that we are totally prepared to enforce the law, and we will start actions against those people who are breaking it by uploading hundreds of music files on to the internet. We will not stand by while thousands of people involved in the creation of music see their careers and livelihoods destroyed. The message is that people are at a real risk of being sued or prosecuted if they continue to rip off those who make music.

I’m Not Sure What Sort of Headline This Deserves

But it is worth reading, just to see how far someone can take a lucrative IP dispute: After 13 Years, Judge Dismisses Case on Pooh Bear Royalties

The Walt Disney Company prevailed on Monday in a 13-year legal dispute over royalties related to its Winnie the Pooh franchise when a judge dismissed the case, contending the plaintiff altered confidential memorandums and covered up the theft of documents obtained by a private investigator who sifted through the company’s trash.

Judge Charles W. McCoy of Los Angeles Superior Court wrote in his decision that the misconduct of the Slesinger family, which sued Disney in 1991 after contending the company cheated it out of royalty fees, was “so egregious that no remedy short of terminating sanctions” would adequately protect Disney and the justice system from further abuse.

[…] The Slesinger family said it intended to appeal the judge’s decision, the result of hearings held a month ago. The point of contention over the years has been that the family had not been paid royalty fees for Pooh videocassettes, games and DVD’s. Such a provision was not written into the contract with Disney, but lawyers for the family contended they were promised the fees anyway.

“The decision unfortunately sends a strong message to corporate America that it is O.K. for companies like Disney to steal and renege on its contractual promises,” the family said in a statement. “This is just one round in a very long and complicated relationship and another delay of justice.”

The two sides have been locked in a bitter and often contentious fight which, if Disney had lost, could have cost the company hundreds of millions of dollars. Over the years, the Slesinger family has been represented by nearly a dozen lawyers – three in the last year alone – including Bertram Fields, the well-known entertainment lawyer who has made a career out of representing Disney’s opponents. He abruptly resigned last summer without explanation. Most recently, the Slesingers were represented by Johnnie Cochran.

Sharing — Help or Hindrance

Weighing in on the idea that file sharing = music promotion, we have the following: Music sharing doesn’t kill CD sales, study says (Slashdot: Study: MP3 Sharing Not Serious Threat To CD Sales) — (the study, The Effect of File Sharing on Record Sales An Empirical Analysis)

For the study, released Monday, researchers at Harvard University and the University of North Carolina tracked music downloads over 17 weeks in 2002, matching data on file transfers with actual market performance of the songs and albums being downloaded. Even high levels of file-swapping seemed to translate into an effect on album sales that was “statistically indistinguishable from zero,” they wrote.

“We find that file sharing has only had a limited effect on record sales,” the study’s authors wrote. “While downloads occur on a vast scale, most users are likely individuals who would not have bought the album even in the absence of file sharing.”

The study, the most detailed economic modeling survey to use data obtained directly from file-sharing networks, is sure to rekindle debates over the effects of widely used software such as Kazaa or Morpheus on an ailing record business.

Here’s the abstract:

A longstanding economic question is the appropriate level of protection for intellectual property. The Internet has drastically lowered the cost of copying information goods and provides a natural crucible to assess the implications of reduced protection. We consider the specific case of file sharing and its effect on the legal sales of music. A dataset containing 0.01% of the world s downloads is matched to U.S. sales data for a large number of albums. To establish causality, downloads are instrumented using technical features related to file sharing, such as network congestion or song length, as well as international school holidays. Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.

Recall the earlier work by Stan Liebowitz started out with this conclusion as well, but then reversed position. It will be interesting to see how this analysis evolves.

"You’re Fired™?"

Commentary from Findlaw: The Donald’s New Game of Trademark Monopoly: Can Trump Register the Rights to the Words “You’re Fired”?

Will he prevail in trademarking a phrase that only the nastiest of bosses dare to utter? Possibly – but in legal reality, The Donald will never fully “own” these terms of termination.

[…] Unlike copyrights, trademarks don’t give their owners unlimited rights to use phrases for all purposes. Indeed, trademarks were only designed to protect a merchant’s efforts to distinguish his brands from those of his rivals. As the law seeks to stop competitors from tricking consumers as to the source of goods, trademark rights only extend to phrases when used in marketing or advertising.

Unless a phrase is used to fool consumers, anyone is free to use it regardless of how unique it may be. Thus, even if Trump proves that “You’re Fired” is distinctive enough for a trademark, he will only win the exclusive right to market the phrase. Since he can’t get a monopoly on non-competitive uses, nasty bosses may continue to “fire” away without writing royalty checks to the man who “popularized” the expression.

[…] What’s the legal test? To get his trademark, The Donald must establish that the slogan carries a “secondary meaning” which identifies America’s most flamboyant entrepreneur. Put another way, Trump must show that Americans link this phrase directly to him – so closely that this connection has actually become part of its meaning.

Art, Adaptation and Expression

Disappointment in the "new" versions of childrens’ books: Abridged too far

Furthermore, it’s clear that the cartoonification of both the text and illustrations of “The Wind in the Willows” is no accident, no amateur mistake. Taken as a whole, it appears the Great Illustrated Classics has a mission, that being to make all the classics as accessible, and ultimately as vacant, as a third-rate comic book. There must be good marketing in that, since commerce and busy parents don’t always have time for art.

It’s painfully ironic that today’s children — whose alarmingly low reading rates are the subject of endless educational debates — are nonetheless willy-nilly expected to read the classics to themselves earlier than children of any previous generation. ABDO has created a self-perpetuating marketing niche. The more parents buy their series, the less reading aloud will go on, so the more children will fail to gain the sophisticated literacy it would take to read the original for themselves, so the more they will need watered-down versions. Even if these watered-down versions go unread, there will be well-meaning parents who will buy them anyway, hoping.

There’s another force to be reckoned with in this process, and that is the Walt Disney Co.

If the Great Illustrated Classic of “The Wind in the Willows” is actually faithful to anything, that would be the many animated versions that have spun off from Grahame’s book over the years. When Disney ate Milne’s treasure, the evidence was everywhere. There are the trademark cartoon figures; there is the text that retells the popular cartoon more than Milne’s stories. Fittingly, the Disney versions are to be found under “D” in our library’s children’s section. Under “M” you may, if you are lucky, find “The Complete Tales and Poems of Winnie-the-Pooh,” by Milne himself, intact and full of their original wit.

But the Disneyfication of “The Wind in the Willows” is more insidious. Because, as Evil Clones are wont to do, Disney’s Toad has gone back to wipe out the original, replace it with himself and cover his tracks. Only those who know to poke around will discern the plunder, and by that time the real treasure may be long gone. When our library’s vintage copies of “The Wind in the Willows” finally wear out, the Great Illustrated Classic, with its sturdy library binding will be all that’s left. And the only hint of the desecration will be the ambiguous but friendly “adapted by” bit on the title page. We’ll find Mole sick of cleaning. Toad flinging horrid little wagons. Mole sitting in his chair with a bubble of Badger over his head. Cleansed of “divine discontent and longing,” bereft of “poetry of motion,” with Mole never taking time out to smell Home, Little Portly neither lost nor found, and no Pan pipes to be forgotten by Rat or reader. Greatly diluted and poorly illustrated “classics” will be the literary legacy left to our children.

[…] Childhood is a sweet time, and an innocent one. But my child knows pain, sorrow, desires and their restraint, friendships tested and found true, people who let you down again and again and you love them anyway. Kenneth Grahame spoke from his heart, bestowing a gift that my daughter can open more and more fully each year. My daughter deserves nothing less than the gifts of artists. What I want for her is precisely what the Great Illustrated Classics wants to leave out. The unfathomable mystery of intimacy and glimpses of its inner workings. A taste of the dangers of the world. The jaw-dropping beauty of language. The heartbeat of the artist.

Beware the white binding with the red and black letters.

Some Music & Entertainment Biz

  • Prince Opens Online Music Store

    Prince’s love-hate relationship with the mainstream music industry takes another turn today as he opens his online Musicology Download Store (, turning his back on download services like Napster, Rhapsody and Apple’s iTunes.

    The move comes a week after Prince appeared to be cottoning to an industry he once compared to a form of slavery, announcing that he would team with Sony Music Entertainment’s Columbia Records to release his new album, “Musicology.”

    […] Most artists receive a part of the 65 or 70 cents that their labels receive from a 99-cent download sale at online stores, said Josh Bernoff, a vice president at Forrester Research. He said Prince could sell half as many songs through store and still make more money than through sales at a store like iTunes.

  • A Web Refugee Turns to Music and Says, ‘The Sky’s the Lid’

    Jeffrey T. Arnold his seen his future – in a soda cup.

    About 16 months ago, Mr. Arnold, a co-founder and former chief executive of the WebMD Corporation, was visiting Los Angeles when a colleague showed him a lid for a 34-ounce plastic soda cup. Tucked inside a transparent pocket were several coupons offered to customers at a convenience store. Mr. Arnold said he was dumbfounded.

    “I said, ‘Forget the coupons. What if this was entertainment? What if it was music on CD’s or movies on DVD’s or games?’ ” Mr. Arnold said. “I thought, ‘If this was entertainment, this could be a blowout.’ ”

  • Leisure Pursuits of Today’s Young Man

    Note to the television networks: Pete Brandel is not missing. He’s right here, but like a lot of other 20-something men he’s just not watching as much TV.

    Mr. Brandel, a 24-year-old real estate agent in Chicago, says that these days he looks to the Internet for news and entertainment. Television, he says, is bogged down by commercials and teasers that waste his time.

    “I’ll go to the Comedy Central Web site and download David Chappelle clips rather than wait to see them on TV,” he said.

    The television industry was shaken last October when the ratings from Nielsen Media Research showed that a huge part of a highly prized slice of the American population was watching less television.

  • A documentary look at the biz: Seeking Fame With Amps and Attitude

    For seven years, she followed both bands, interviewing their members and capturing their on- and off-stage triumphs and catastrophes, and a result is one of those heaven-sent narratives, like “Hoop Dreams” or “,” in which the contingency and chaos of events coalesce into a resonant and satisfying story.

    If universities ever start graduate programs in rock stardom, “Dig!” will surely be a cornerstone of the curriculum, for it works as both an instruction manual and a cautionary tale. It’s like an extended gloss on that exuberant, cynical Byrds song that begins, “So you wanna be a rock ‘n’ roll star, well listen now, to what I say . . . ”

Busy Day — Light Posting Ahead

Between the ESD Symposium and teaching responsibilities, it’s going to be a light day for me.

A couple of quick things

  • IPNewsBlog points to Lawrence Solum’s cite of The Myth of the Software Patent Thicket: An Empirical Investigation of the Relationship Between Intellectual Property and Innovation in Software Firms — something to take with me for the low energy points of the day

  • While you’re over at Legal Theory Blog, take a look at a little pedagogy from Prof. Solum: Legal Theory Lexicon: Public and Private Goods

  • Wired on E-voting: How E-Voting Threatens Democracy — a call for physical verification of votes in e-voting systems

  • As Ted Rall pointed out last week, you may have freedom of speech, but no one says you have the right to actually be heard, apparently — from today’s NYTimes: Keeping Intellectual Borders Open

    Last September, the Office of Foreign Assets Control — part of the Treasury Department — made a surprising ruling. Publishers could publish works by authors living in certain countries, including Iran, Libya, Sudan and Cuba, but they couldn’t edit them. Those countries are subject to American economic sanctions, and the office decided that to consult with an author about a manuscript was against the rules. This was a novel interpretation of the International Emergency Economic Powers Act, which explicitly exempts informational materials from economic embargoes. Naturally, the ruling had publishers and authors up in arms.

    The Treasury Department needs to remove this inappropriate restriction and do so promptly. Its practical effects do nothing to penalize the governments of sanctioned countries and everything to harm the very people who are most interested in a free and open exchange of literary and scientific ideas. This ruling is part of an unwelcome pattern since 9/11. In the name of security the administration has too often reacted in ways that diminish America’s role as a central exchange in the marketplace of ideas. Visas for foreign scientists, graduate students and artists have been unnecessarily restricted. The movement of American scientists has been restricted too.

    There are many weapons in the war against terrorism. One of the most powerful is the enlightened, rational values that America has come to stand for. Ideas pose no risk to us until we begin to try to control them.

OK, That’s It

It’s time to take it to legislators that think hamstringing the use of tools (and asking me to pay for it) is the solution to problems that they’re too lazy to put real thought into solving: Congress Moves to Criminalize P2P (see also Donna’s rundown: Funding the War on Filesharing and Errata)

Maybe these legislators think that the FBI should be spending their time on KaZaA instead of helping to explain the threat of terrorism to Condi Rice and the rest of this administration?

(Yes, I’m pissed – and no I haven’t read the bill yet, and yes, I know that these sorts of bills are generally just showboating, but showboating like this is too dangerous to leave unremarked)

Update: Ernest has put together a comprehensive look at the bill and its discussion, with the conclusion that Senator Hatch may end up spending a lot of time running away from: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry. Maybe we can ask Larry Flynt to call a press conference to thank Senators Hatch and Leahy for their efforts? Any other pornographers out there who would make excellent poster children for this initiative?

Further update: PIRATE Act Introduced in Congress

Even further (and later!): Ernest just gives more examples of why it’s really important to think you federalize/"felonize" things — PIRATE Act – Wiretaps for Civil Copyright Infringement?

Ed Felten on LightWeight DRM

Light Weight

[B]laming the buyer of an original for all copies (and copies of copies, etc.) made from it just isn’t practical. To see why, suppose Alice has a big collection of music on her laptop. Then her laptop is stolen, or somebody breaks into it electronically, and all of her songs end up on millions of computers all over the Net. What then? Do you take all of Alice’s earthly possessions to compensate for the millions of infringements that occurred? (And if that’s the policy, what sane person will buy music in the first place?) Or do you let Alice off the hook, and allow burglars to defeat your entire DRM scheme? Nobody has a plausible answer to this question; and the Fraunhofer people don’t offer one.

Also, see yesterday’s DRM In Practice