February 2007 Archives

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Intellectual Property Watch: What’s Ahead For IP And The Music Industry - An Interview with Jacqueline Charlesworth, National Music Publishers’ Association. Discusses the Section 115 Reform Act, Compulsory Copyright Royalty rates, ringtones and XM.

Dion Dennis, Fear and Loathing in the Bay State: "So this is what it has come to: Two young artists (their demeanor an echo of 1960s creative expressiveness), paid a pittance to playfully market a surrealist cartoon movie starring several talking base-level consumer commodities, have been labeled semiotic terrorists and criminals by official reality. What does this political panic reflex, played out in the gerontocratic and the politically correct Commonwealth of Massachusetts, tell us?"

Web 2.0, explained in video

More on Jobs on DRM

The RIAA released a statement in response to Jobs' open letter, available at Jon Healey's Bit Player blog at the LA Times: "Apple’s offer to license Fairplay to other technology companies is a welcome breakthrough and would be a real victory for fans, artists and labels. There have been many services seeking a license to the Apple DRM. This would enable the interoperability that we have been urging for a very long time."

Is this really the best of Jobs' three scenarios for copyright owners? If Apple did choose to license to third parties, Apple's proprietary DRM scheme would be the underpinning of the entire digital music industry. And while there would be competitors to the iTunes/iPod hegemony, Apple would be the 500 lb gorilla in the room. Its proprietary format would govern the way that music is used. Perhaps the record labels would prefer to have to deal with using antitrust law to reign in Apple's dominance in the music distribution ecosystem, but that seems like the labels would be letting too much of that distribution ecosystem get to far out of their control.

It shows how confident Apple is in its product that the company is willing-- if not enthusiastic-- to prefer open competition to licensing its own proprietary protection scheme.

John Markoff, The New York Times, Jobs Calls for End to Music Copy Protection: "The Universal Music Group, the Warner Music Group and Sony BMG Music Entertainment declined to comment. But several industry executives said they viewed Mr. Jobs’s comments as an effort to deflect blame from Apple and onto the record companies for the incompatibility of various digital music devices and services."

The Economist: Music wants to be free: "Mr Jobs’s argument, in short, is transparently self-serving. It also happens to be right."

John Gruber, Daring Fireball: Reading Between the Lines of Steve Jobs’s ‘Thoughts on Music’: "Interoperability is a good idea. It is simply fair that you should be able to play the music you’ve downloaded and paid for on any brand of music player. “Open up FairPlay” sounds nice, but, as Jobs makes clear, makes little practical sense. If you really want interoperability, then what you want is no DRM, not “open” DRM."

As Gruber, and others, have noted, there are many copyright owners-- independent labels and artists, mainly-- who are willing to distribute their recordings in DRM-free formats. In fact, many of these recordings are distributed DRM-free already. Unless the contracts with the Big Four prohibits Apple from distributing any non-protected content from the same store, Apple could distribute independent music without any DRM.

Previously: Apple, DRM and Digital Distribution

Daniel Terdiman, News.com: 'Electric Slide' on slippery DMCA slope: "The inventor of the 'Electric Slide,' an iconic dance created in 1976, is fighting back against what he believes are copyright violations and, more importantly, examples of bad dancing."

I don't know if this is an example of "bad dancing," but YouTube user nehiker filmed "Electric Slide on Slide Mountain" in the Catskills:

Ric Silver: The Electric Slide Dance. (Does the use of an animated Spider-man dancer on the web page infringe on Marvel's copyrights or trademarks, if the use is unlicensed?)

A couple of pieces of additional reading on copyright in choreography:
Julie Van Camp, Copyright of Choreographic Works, 1994-95 Entertainment, Publishing and the Arts Handbook.

Horgan v. Macmillan, Inc., 789 F.2d 157 (2d Cir. 1986) ("Whether still photographs of a ballet can infringe the copyright on the choreography for the ballet.")

William Patry, The Patry Copyright Blog, Choreography and Alternatives to Copyright Law (Aug. 2005)

And in a tangentially related case, Judge Kaplan in the Southern District decided a case concerning copyright in stage directions ("Blocking and Choreography"), Einhorn v. Mergatroyd Productions, 426 F.Supp.2d 189 (S.D.N.Y. Apr. 2006).

Viacom, YouTube and You

The New York Times: Viacom Tells YouTube: Hands Off: "In a sign of the growing tension between old-line media and the new Internet behemoths, Viacom, the parent company of MTV and Comedy Central, demanded yesterday that YouTube, the video-sharing Web site owned by Google, remove more than 100,000 clips of its programming"

While there are certainly many infringing clips on the site, some fraction of the takedown notices sent to Google claim infringement in non-infringing content-- such as a home video (filmed at Redbones in lovely Davis Square.) John Palfrey asks, How Many Jim Moores Are Out There? Viacom’s Cease and Desist Letters … for Home Videos? "Stipulate that Jim Moore holds all rights in his video, and Viacom none. And stipulate further that Jim Moore is far from alone. One presumes that Viacom’s argument is that they did not issue these misrepresentative notices 'knowingly.' I wonder how many home videos have to have been caught up — and taken down — in this sweep before one could say that it was “knowing” on the part of Viacom?"

Previously: Copyright Fraud and Misuse, A series of tubes: the song: the story

Also, Reel Pop: A Brief Guide to Online Video Lawsuits: "Following the recent news that Fox subpoenaed YouTube to identify a user uploading copyrighted content, I thought it'd be useful to collate info about litigation against the major video-sharing sites. Below, details on lawsuits and subpoenas against Veoh, Bolt, Grouper, YouTube, Google Video and MySpace."

Apple, DRM and Digital Distribution

A few European countries, including Norway, Germany, and France, are considering requiring Apple, Inc. to make the songs sold on the iTunes store playable on music players from other manufacturers. ARS Technica reports: iTunes DRM called out by France and Germany: "Apple is being challenged once again to open up its DRM by consumer groups in Europe. This time, Germany and France have joined the slowly-growing number of countries who are asking Apple to allow the protected songs purchased from the iTunes Store to be played on other music players besides the iPod. Norwegian Consumer Ombudsman Bjoern Erik Thon told the Associated Press that France's consumer lobby group, UFC-Que Choisir, and Germany's Verbraucherzentrale are now part of the European effort to push Apple into an open DRM system, with more countries considering joining the group"

Steve Jobs responds in an essay on Apple's web site, noting that use of DRM is at the requirement of the copyright owners who license music to the iTunes store. Apple would be happy to sell unprotected songs: Thoughts on Music:

To begin, it is useful to remember that all iPods play music that is free of any DRM and encoded in ‘open’ licensable formats such as MP3 and AAC. iPod users can and do acquire their music from many sources, including CDs they own. Music on CDs can be easily imported into the freely-downloadable iTunes jukebox software which runs on both Macs and Windows PCs, and is automatically encoded into the open AAC or MP3 formats without any DRM. This music can be played on iPods or any other music players that play these open formats.

The rub comes from the music Apple sells on its online iTunes Store. Since Apple does not own or control any music itself, it must license the rights to distribute music from others, primarily the ‘big four’ music companies: Universal, Sony BMG, Warner and EMI. These four companies control the distribution of over 70% of the world’s music. When Apple approached these companies to license their music to distribute legally over the Internet, they were extremely cautious and required Apple to protect their music from being illegally copied. The solution was to create a DRM system, which envelopes each song purchased from the iTunes store in special and secret software so that it cannot be played on unauthorized devices.

Jobs goes on to explain that Apple has refused to license its Fairplay DRM system because doing so would make the scheme less secure. Because licensees would need to know how to decrypt the protected files, allowing third-parties access to the Fairplay code would make the scheme much more likely to be cracked. Apple would be happy to sell music without DRM, if only the Big Four would be willing to let Apple sell unprotected files.

The major labels seem to be getting closer to attempting large scale use of digital distribution without DRM. From MIDEM, Victoria Shannon reports in The NY Times: Record Labels Contemplate Unrestricted Digital Music: "As even digital music revenue growth falters because of rampant file-sharing by consumers, the major record labels are moving closer to releasing music on the Internet with no copying restrictions — a step they once vowed never to take."

Independent labels are already selling unprotected MP3 files through eMusic. Other Music, here in New York City, is set to launch a digital download store selling indie music in high-bitrate, unprotected MP3 format. Eliot Van Buskirk, Wired News interviews: A Real Music Store Sprouts Online: "Other Music [will take] its handpicked approach to music sales online with the launch of its own digital music store. Located at digital.othermusic.com, the site will stock high-quality MP3s from Pitchfork-friendly bands, without using digital rights management of any kind."

Yesterday, Apple, Inc. and Apple Corp. entered into a new agreement concerning the Apple trademark. In this new Agreement, the Jobs-helmed Apple, Inc. will own the Apple mark and license it to the Beatles' Apple Corp. Terms of the deal were not disclosed.