December 29, 2003

A Little Copyright Wrapup at GrokLaw [10:25 pm]

Following up to an earlier post (A Setback for the Second Enclosure Movement), we get this nice summary over at GrokLaw: What Can’t You Copyright? — plus pointers to Lessig comments as well.

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Mattel v. Walking Mountain [8:15 pm]

An entertaining decision from the Ninth Circuit: Mattel v. Walking Mountain Productions (Findlaw’s link) (summarized in this Reuters news item: Court Rules Nude Barbie Photos Are Free Speech) — see a sample of "Food Chain Barbie" at Illegal Art — www.creativefreedomdefense.org is his WWW site, but it’s timing out tonight — a Googling finds the exhibit at his domain, but it’s not responding.

A federal appeals court on Monday upheld a Utah artist’s right to make nude photos of Barbie dolls being menaced by kitchen appliances.

Noting the image of Barbie dolls is “ripe for social comment,” a three judge panel of the 9th Circuit Court of Appeals rejected toymaker Mattel Inc.’s appeal of a lower court ruling in favor of lampooning the popular doll.

The San Francisco-based appeals court ruled that naked photos of Barbie made by Kanab, Utah, artist Thomas Forsythe were meant to be a parody and could not affect demand for Mattel products.

Even better, from the opinion:

On cross-appeal, we VACATE and REMAND the Los Angeles federal district court’s decision to deny Forsythe attorney’s fees under the Lanham and Copyright Acts. [slip op. p. 18207]

Update: From SFGate — Appeals court tosses lawsuit targeting Barbie lampooner; also, the Scrivener’s Error writeup: More Barbie News

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Another Set of Data Points [4:31 pm]

More on the stalling of internet deployment, and some indication of how well the RIAA’s battle is going [via beSpacific] — from the Christian Science Monitor: The Internet hasn’t reeled in everyone yet

After spiking in the 1990s and early 2000s, the percentage of adult Americans online has leveled off in the past two years at 63 percent, says a new study from the Pew Internet & American Life Project. That percentage is expected eventually to rise, but not as quickly as some had imagined.

“It’s no longer the case that the Internet population is growing by leaps and bounds,” says Lee Rainie, director of the Pew project. However, “the Internet is eventually going to become as important and universal a technology as telephones and televisions are now.”

Ninety-four percent of American homes today have telephones; 98 percent have TVs. “The Internet is eventually going to get to that level,” he predicts, “but it’s going to take at least 10 years - or maybe even 15 or 20.”

[...] One key barrier slowing Internet growth is the lack of broadband connections in some areas, says Phillipa Gamse, an e-business strategy consultant in Santa Cruz, Calif. Broadband allows users to move around the Internet faster, doesn’t tie up the phone line, and, perhaps most important, can be left on all the time, like other appliances.

From the Pew Study: America’s Online Pursuits: The changing picture of who’s online and what they doHobby and Entertainment Activities

About a third of users download music files.

  • 32% of Internet users have downloaded music, as of October 2002.

  • That represents growth of 71% from 21 million Americans who had downloaded music as of the summer of 2000, to 36 million who had done so as of October 2002.

  • The number of users who download on a typical day doubled from 3 million to 6 million between 2000 and 2002.

  • Online men are more likely than women to download music.

  • This activity is particularly appealing to online minorities.

  • Young adults and teens are the likely downloaders.

  • There is a higher proportion of downloaders among those with modest household incomes and with high school diplomas.

  • Those with broadband connections are more likely than others to download music.

[...] Wired young adults have undoubtedly driven the growth of music downloading more than any other adult age group. As we have reported previously, college students, represented in the 18- to 29-year-old demographic, are twice as likely to have downloaded music compared to the general population and they are three times as likely to do so on any given day. College students often have free access to high-speed Internet connections on campus and have utilized those resources to become pioneers and heavy users of file-sharing technologies. The older an Internet user, the less likely he or she is to have downloaded music. While 54% of 18- to 29-year-olds had downloaded music in October 2002, just 29% of 30- to 49-year-olds had done so.

Children and teens have been even more voracious downloaders. In a special survey of 754 children between the ages of 12 and 17 that we conducted in late 2000, we found that 53% of online children had downloaded music. For comparison’s sake, only 42% of 18- to 29-year-olds said they had done this. Considering the growth that has occurred across all age groups between 2000 and 2002, it is likely that number of children downloading music has also grown.

See also A Slowdown In Broadband Deployment

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More on Exclusive Music Deals and Mega-Retailers [2:32 pm]

Big Stores Make Exclusive Deals to Bring in Music Buyers (See also the article in The Music Biz — Then and Now from November — see the PDF, the Globe link has expired)

The exclusive deals are being offered as mass marketers are seeing their share of the music business grow. Discount stores like Wal-Mart accounted for only 13.5 percent of music sales in 1994, said Clark Benson, the chief executive of the Almighty Institute of Music Retail, a Los Angeles-based company that sells data about retailers to record labels. This year the figure is 34.8 percent. Billboard and its corporate sibling Nielsen SoundScan lump electronics chains like Best Buy and Circuit City with traditional music stores. Adding their sales to the other mass marketers would probably raise that group’s total to more than 50 percent, said Geoff Mayfield, the director for charts and senior analyst at Billboard.

For the retailers, the deals are as much about using the artists’ appeal to lure customers as they are about selling CD’s and DVD’s. For the musicians, the deals are less about sales than about promotional campaigns well beyond anything offered by record companies even in their glory days.

For example, Target promoted its exclusive seven-song Bon Jovi CD with an extensive television campaign. In the 30-second spot - which cost $1 million to produce, the band’s management said - snippets from a studio performance of a song on Bon Jovi’s new full-priced CD were intercut with footage of band members chatting about the meaning of the song. Best Buy started a similarly ambitious television campaign for its Rolling Stones DVD set last month.

“If you look at the Target commercial, that’s an ad for Bon Jovi and they just stuck their little circle on at the end,” said Bruce Kirkland, one of the two principals at Bon Jovi Management.

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A New DVD Format Fight [9:55 am]

Heavyweights Are Choosing Sides in Battle Over Next DVD Format [pdf] - a subtle story with a host of conflicting interests. With IP at the center, but also the issue of what might happen if either (a) the Chinese decide to play hardball with technology restrictions and (b) what the PC business might bring to the picture. This should be a really interesting fight — on many levels. (Slashdot discussion: Tech Titans Prepare to Battle Over Next DVD Format)

The new discs and their players will not be widely available until at least 2005, but already the world’s largest electronics, computer and entertainment companies are embroiled in a multibillion-dollar fight over whose technology will become an industry standard.

[...] Beyond the technical details like tracking speed and tilt is a serious tussle over how to divide - and protect - the billions of dollars in royalties from the licensing of this technology and the content sold on the discs. Also at stake is an effort by electronics makers to prevent emerging Chinese rivals and well-established Silicon Valley computer makers from making significant inroads into the home entertainment business.

“This is a very intense conflict over intellectual property,” said Warren N. Lieberfarb, a driving force behind the development of the original DVD format. It has the added overlay, he said, “of the Japanese, Korean and European consumer electronics industries fearing China’s aggressively emerging consumer electronics industry as well as the PC industry.”

[...] Sony and its allies dismiss claims that their technology is too expensive, saying that the cost per disc will naturally fall as production takes off. They also say their rewriteable discs are what consumers really want because they can be used not only to play movies but also to record high-definition digital television programming, now available selectively in the United States and offered on a limited basis in Japan starting this month.

[...] Copyright infringement is another worry. After the rapid spread of illegally copied DVDs, Hollywood is pushing both technical groups to come up with new security measures to protect their movies. Neither group has developed a prototype that satisfies the movie industry - a major impediment to a commercial launch.

“We are very much focused on both picture quality and content protection,” said Peter Murphy, senior executive vice president and chief strategic officer at the Walt Disney Company, which has about one-fourth of the home video market. “The consumer electronics manufacturers can come up with the technical standards for the next-generation discs, but unless we also agree on the content protection standards, many of the studios may choose to wait before releasing content in the new format.”

Also lurking nearby are giants like Microsoft, I.B.M. and Intel, which are eager to work their way into family rooms by promoting their technology for use in set-top boxes, DVD players and digital video recorders with hard disk drives. American computer makers, adept at producing hardware on thin margins by building sophisticated global supply chains, could also develop competing products, turning television into just another function of the home computer.

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A Look at What’s Coming in 2004 [9:45 am]

Media and Technology in 2004 (Slashdot discussion: NYT: 14 Media & Technology Convergence Trends)

The convergence of media and technology, long predicted but not yet fulfilled, is at last showing signs of happening - with high-speed Internet access making much of it possible. With more American households going to broadband, faster Internet connections are changing the movie, music, telephone, computer and cable businesses.

The following entry is one of the topics raised in this article. Others include:

  • With CD Sales Slipping, the DVD Steps In — and let’s think about what that means in terms of copy protection, DeCSS and other access controls — plus the laws to enforce these technological locks.

    The industry is hardly settled on how best to entice customers with DVD’s. In addition to stand-alone packages, 50 Cent and the rocker Tom Petty have released DVD sets with bonus audio discs. Many more artists, from Metallica to Alicia Keys, have offered bonus DVD’s with their traditional CD albums.

    Even the packaging is still in flux. The hip-hop duo OutKast, for instance, issued their recent DVD collection, “The Videos,” in both the jewel boxes used for CD’s and the clamshell case used for movie DVD’s.

    Label executives hope to find clues in these numbers on how to drive DVD sales in the new year.

    “Because of the plethora of releases this year, there’s certainly a lot of data which we’re in the middle of combing over now to make some decisions about what we’re going to be doing,” Mr. Katz said.

  • Personal Video Recorders: Executives Plan Now to Deal With Popularity

    Personal video recorders, which can easily skip over television commercials, may not yet be in most American homes, but they are certainly on the minds of advertising executives.

    [...] “The challenges presented by TiVo are obvious,” Mr. [David ] Ernst [of Media Initiative North America] said. “Yet there are also opportunities to develop new types of advertising not constrained by time.”

    Those include product placements within a show and interactive versions of television programs that encourage viewers to visit a Web site for more information. Initiative Media is developing advertiser-produced informational programs that could be viewed free using cable’s video-on-demand technology.

    [...] Commercial-skipping is a problem for the nation’s broadcasters as well as for advertisers. A network suffers if viewers routinely skip over its promotions for programs. And if consumers record a show for later viewing, broadcasters lose the lead-in effect that helps draw viewers from popular shows to shows that follow in the lineup.

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More on the MPAA’s "Education" Programs [9:33 am]

Or propaganda — you decide. And, if that doesn’t work, there are other strategies to threaten infringers with: Studios Fight Piracy With Education

The studios say they will continue their effort to educate people on the effects that piracy has on moviegoers by threatening the fundamental economics of a popular form of entertainment. They are taking their message to grade school classrooms where volunteers teach lesson plans about the costs of illegal file sharing. Industry-sponsored advertisements are playing at movie theaters. The ads profile behind-the-scenes working people - set designers, costume makers and the like - to show that downloading hurts more than superrich entertainers.

[...] [S]ome film executives say that without drastic measures, illegal file sharing is unlikely to stop, particularly in foreign countries, like China, where pirated copies of movies are often titles more popular than the legally available fare. Ultimately, movie executives may be forced to take a cue from their music industry counterparts who caused a stir when they started suing illegal downloaders. Only when consumers find themselves or their children facing prison, some movie executives say, will they get the message that sharing movies is a crime. [emphasis added]

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USAToday on the eMusic Biz [9:24 am]

It’s all about using digital music downloads to sell something else — [Via Scripting News] 2004 may see ‘bit of a gold rush’ for digital tunes

Seattle-based Loudeye (LOUD) recently teamed with Microsoft (MSFT) to take advantage of the trend. The crosstown partners are offering companies a way to instantly erect their own music-download services by accessing Loudeye’s music archive using Microsoft software.

Loudeye CEO Jeff Cavins says the partnership could spur the rise of upward of 100 new digital music offerings worldwide in 2004. “It’s highly conceivable you’re about to see a bit of a gold rush around digital music,” Cavins says.

[...] Now Loudeye, which has 80 employees and annual sales of about $13 million, has begun packaging its music archive with Microsoft’s Windows Media software and is helping companies dream up ways to use downloads to promote other products and services. “This really is a tool to drive cross-merchandising,” Cavins says.

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NPR’s Morning Edition [9:12 am]

Today’s Morning Edition had a piece on CD copy protection, with Prof Ed Felten and Alex Halderman as well as the head of SunnComm, Peter Jacobs.

Music Copy Protection (Javascript audio link on the NPR page)

Record labels have spent years trying to install technology on compact discs to prevent them from being illegally copied. But the vast majority of CDs are still easily burned. NPR’s Rick Karr reports on the technology that keeps hackers and the recording industry at odds.

Jacobs floats the interesting theory that copy protection as absolute protection will never work, but tying adherence to copy protection to other benefits (ticket discounts, lyrics, etc.) will. Ed Felten points out that it only takes one hacker to get music files onto the P2P networks.

And, most surprisingly, there’s a theory raised by Prof. Doug Lichtman (U of Chicago) that there are those who hack on the basis of purely political/moral arguments, suggesting that copying should be completely legal.

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