I let this topic have a rest over the last two quarterly Agoras. But with the US Supreme Court taking oral arguments in the Grokster case on Tuesday March 29, interest in the subject should heat up again. The usual canned introduction: The original Napster corporation has been destroyed, its trademarks now owned by an authorized music retailer which does not use peer-to-peer technology. But the Napster paradigm, in which computers and networks give ordinary people unprecedented control over content, continues. This is another quarterly installment in a series of weblog and discussion about the deconstruction of the music industry and other copyright industries, with side forays into "intellectual property, freedom of expression, electronic media, corporate control, and evolving technology," as polygon once phrased it. Several years of back items are easily found in the music2 and music3 conferences, covering discussions all the way back to the initial popularity of the MP3 format. This item is linked between Spring 2005 Agora and Music conferences.80 responses total.
The state of CD sales in 2004 & 2005: (I'm just going to dump this in off the top of my head, rather than try to scrape up the primary sources from three months back.) Soundscan is the point-of-sale system which measures sales to consumers. The Soundscan figures for CD sales in 2004 were reported in January 2005. They showed a slight increase in CD sales for the year, offering hope that the decline of the last several years had been stopped. There were some confusing ways of tallying the sales, based on whether one counted 2004 as having 52 or 53 sales periods, and so the increase was variously reported as between 1.5% - 2.5%. Let's split the difference and call it 2%, good enough for folk music as they say in arabella's family. Looking at how the sales progressed through the years, though, the data didn't look so optimistic. Sales were strong early in 2004, relative to year before, but in the last three months of 2004 sales fell behind same-week 2003 sales -- this got the industry back on the same treadmill of decline which had characterized the preceding four years. Sales had sagged enought that 2004 looked to heading for another year of losses -- but there was a surge in the last weeks of Christmas shopping to salvage the year. A last-minute Christmas surge says to me that CDs were just easy last-minute presents, not things that people really coveted for themselves. CD sales resumed a fairly rapid decline in early 2005; a new Billboard story puts the decline at 9%, relative to 2004 year-to-date. So sales have been back on the skids for six months. I've seen a news story reporting that Best Buy -- the only big box retailer with anything approximating a broad selection -- is planning to convert unspecified amounts of CD space into DVD space. I've also seen the Liberty St. Borders sweeping out the CDs from the lowest tier of the new 5-tier display case, which would seem to indicate another stock cut of up to 20%, on top of cuts already made. ------ Another story on 2004 CD sales broke the sales figures down by types of retailers: big box discounters -- up 10% retail chains (Borders & Tower & Sam Goody?) -- down 4% independent retailers -- down 10%
Do Tower and Sam Goody even still exist, or was it just their local stores that closed?
Both Tower and Sam Goody still exist. Tower's existence is likely quite precarious; last year, I think it was, the creditors took a majority ownership when no other buyers could be found. The idea is that the new ownership would straighten out the business problems and then there could be a profitable sale to a new owner. I'm skeptical this is working; I had a couple of trips to one of the main Tower branches in Manhattan and the stores did not have a lot of customers in them. I would have to look up the exact number, but something like 1/3 of all the Tower stores have closed. The Detroit area store, the last one in Michigan, closed around the time the new owners took control. Sam Goody is part of the Musicland corporation, which also owned MediaPlay and some other brands. Best Buy had bought Musicland around 2000 for something like $700 million, hoping to create a greater synergy of entertainment content and electronic. In 2003, Best Buy "sold" Musicland for, essentially, zero dollars, just to get that dog of a business off its books. The buyer was Sun Capital Partners, who are reported to be specialists in turning around distressed companies. Best Buy stock rose on the news that Musicland -- an asset worth almost 3/4 of a billion dollars a short while earlier -- had been given away to another, um, sucker. (Musicland's presence in downtown Ann Arbor was the long-running Discount Records store at State & Liberty, in the location which is now Potbelly Sandwiches.) I have no further news or personal experiences about Musicland's operation.
This is a bit late, but I didn't think to comment on it until I saw this item. Last year, the RIAA forced Apple to raise prices on some tracks on iTunes, as well as on complete albums, by as much as 70%: http://www.theregister.co.uk/2004/05/07/apple_itunes_price_rises/ To me this is more evidence of the RIAA's short-sightedness. Just when people are finally getting accustomed to the idea of buying legal music online, the record labels decide they aren't making enough money and hike the prices. I think there's a real danger of driving people back to the file-sharing services, although the RIAA is probably assuming the threat of lawsuits will prevent that. I wonder how long it will take the record industry to realize that they just can't sustain huge markups like they used to be able to? They seem to assume that their industry is somehow immune to the laws of supply and demand that govern every other market.
Re. 3: I went into the Tower Records in Birmingham and jeez, were their prices high. It's no wonder they're going out of business. CD's were around $20 and DVD's approx. $25, even on older titles.
As a public service, the various briefs in the upcoming MGM vs. Grokster case are posted on my website: http://jremmers.org/mgm-grokster.zip The briefs are in PDF format in a big (approx 20mb) ZIP file. Because of it's size, I'll delete it after a few days. Grab it while you can.
The huge Tower in Berkeley just -- vanished -- last year. At least four others in the Bay Area are still around. Last I checked, at any rate.
The case of MGM vs. Grokster will be argued before the US Supreme Court today, so those who are passionately interested should keep an eye on their favorite news media for early reports. My guess is there won't be any solid analysis of the arguments until the evening.
Mark Cuban, founder of Broadcast.com, producer of film and tv programs, and owner of the Dallas Mavericks basketball team, announced in a blog entry this week that he will be financing Grokster's defence against MGM. http://www.blogmaverick.com/entry/1234000230037801/ (via slashdot)
I saw him on 60 Minutes. He seems like a jerk.
But a very rich jerk! Actually, I think he is a bit self centered, but also very ...different. Did you see his TV show this last season. He tried to doa TRump type show where he gave away a million dollars, but they did thinkgs like play JENGA to eliminate one of the people.
I must have missed that blockbuster.
That's because you're unlucky.
It was originally scheduled for 12 shows but they cut it to 6. I think it was called the benefactor.
It was. He came off as very ... arrogant, but then, if I made that much money, I bet I could get away with that, too.
Arrogant money has exactly the same purchasing power as humble money. :) And this is a good cause. I've been reading Mark Cuban's blog (http://www.blogmaverick.com) for a while (except for the sports postings, in which I have no interest). He has strong views, and writes passionately about them, but he backs them up with data, and he seems generally reasonable. Never seen him on TV - maybe his in-person persona comes off differently from his in-print persona. Computer conferencing veterans know how that can work.
Arrogance will get you good customer service but can still get you punched in the mouth.
Here's the best combination of information and entertainment I have
found on the arguments before the Supreme Court in the Grokster case.
http://www.wetmachine.com/index.php/item/255
Some quick comments:
1) Not from this article, but from another source, one of the Justices
(Scalia, I think) said this case would not be decided on the basis
of "stare decisis," which more-or-less translates as "we're going
to follow precedent." So the Betamax precedent is open for
tweaking.
2) Questions from the Justices indicated that they were very sensitive
to the issue of allowing new technologies to be choked off by lawsuits
from the content industries. To paraphrase the EFF, at least the
Justices were asking the right questions.
3) The Justices don't like the point that Grokster "was making money from
wholesale violation of the copyright laws." (But the VCR business
was similarly built!!) Plaintiff MGM wants to get towards some sort
of a standard where the business model of a company is examined in
determining the company's liability for contributing to infringement:
but all that's going to do is make sure that the next iteration of
file sharing does not involve a business.
Oh the irony:
http://www.boingboing.net/2005/04/01/valenti_signs_betama.html
(Maybe this should go in the humor item...)
Re resp:18: Great article!
Cory Doctorow of the EFF reports that a Federal court has struck down the FCC's attempt to mandate the "Broadcast Flag" technology for any digital device which could manipulate a video signal, such as your computer, to control how TV programming was used. Cory says the court ruled "... that the FCC does not have the jurisdiction to regulate what people do with TV shows after they've received them." The FCC had argued that the Broadcast Flag was justified under its mandate to promote the switch from today's analog TV to digital TV; opponents had argued that Broadcast Flag was at root a copyright issue, and FCC was way out of line in meddling in copyright matters without an explicit charge from Congress. I haven't looked for a mainstream news source on this yet: http://www.boingboing.net/2005/05/06/vtv_day_we_won_the_b.html
This is big news. Is this subject to appeal by a higher court or is it final? If it's final, of course, that doesn't mean it's over, as the content providers have enough sway in Congress that they might persuade them to enact legislation either giving the FCC this authority or accomplishing much the same thing directly.
Court rulings are never final unless they come from the US Supreme Court. :) In the link I cited above, Cory Doctorow doesn't think the chances of moving legislation through Congress are very good.
I've piled up a number of items in my browser and I'm just going to dump them in here this weekend. First, a column from those wild-eyed communist radicals at London's FINANCIAL TIMES newspaper: "Deconstructing Stupidity," by James Boyle. At the risk of oversimplifying, Boyle argues that society-at-large has bought into the argument that the more intellectual property, the better , and he thinks this is a stupid argument. A couple of quotes: >>> "Part of the delusion depends on the idea that inventors and artists create from nothing. Who needs a public domain of accessible material if one can create out of thin air? But in most cases this simply isn*t true; artists, scientists and technologists build on the past. How would the blues, jazz, Elizabethan theatre, or Silicon valley have developed if they had been forced to play under today*s rules? Don*t believe me? Ask a documentary filmmaker about clearances, or a free-software developer about software patents." >>> "An Industry Contract: Who are the subjects of IP << Intellectual Property Law >> ? They used to be companies. You needed a printing press or a factory to trigger the landmines of IP. The law was set up as a contract between industry groups. This was a cosy arrangement, but it is no longer viable. The citizen-publishers of cyberspace, the makers of free software, the scientists of distributed data-analysis are all now implicated in the IP world. The decision-making structure has yet to adjust." The whole article: http://news.ft.com/cms/s/39b697dc-b25e-11d9-bcc6-00000e2511c8.html
*Why* would the public "buy into" something like Intellectual Property?
Because the corporations most responsible for shaping public opinion have a lot of money riding on their current business models, which are founded on certain assumptions about intellectual property law?
And, because some parts of IP are reasonable. The problem is that IP law and the realities of technology have gone comepletly apart.
I was really happy to hear the the courts struck down the broadcast flag. Re #26: Indeed. I think that current intellectual property law is more about preserving the business models of the middlemen rather than protecting the rights of the creators themselves. How else to explain the absurd extension of copyright terms far beyond the probable lifetime of the creator of the copyrighted work. The Boyle article that Ken cites in #24 does a good job of explaining how modern IP law works against the public interest and stifles rather than promotes creativity. If Shakespeare had had to work in today's IP legal environment, he'd probably have been sued out of business. After all, he shamelessly borrowed his stories from other sources. Another good read along the same lines as the Boyle piece is "The Copyright Cage," by Jonathan Zittrain. URL: http://www.legalaffairs.org/issues/July-August-2003 /feature_zittrain_julaug03.html (Or, if long URLs are problematic for you, http://tinyurl.com/fbqd will also work for a while.)
There is no such thing as intellectual property. All information is public domain, the government just enforces limited-time monopolies to the people who discover or invent the information first. It is hoped that these monopolies will motivate people to discover and invent more. I mean, how can you own something, and then suddenly not own it just because a specific amount of time has passed? Intellectual property is a concept that was constructed by corporations in order to maximize profit.
Re resp:29: "I mean, how can you own something, and then suddenly not own it just because a specific amount of time has passed?" It occasionally happens in real estate. Adverse possession is a good example.
Adverse possession means different things in different states, but it usually implies an abandonment of the real property. I'm not sure if that fits in very well.
There's a little variation but basically it means there must be possession, it must be notorious (obvious) and hostile (no permission was given.) It doesn't require abandonment, just that you not do anything to stop it. Another example of losing something based on time is encroachment, although the underlying nature is similar. In the grand scheme of things, none of us ever really owns anything, we just are granted limited use of it for limited times for limited purposes. And, given recent changes in the law, it's unclear that certain IP laws (copyrights) don't de facto last forever.
Intellecutal property rights are good for protecting the value of one's intellect. I guess if you're a communist then you might prefer to say that intellectual property rights are a corporate construct but as an engineer or inventor one might find a different truth.
You don't have to be a communist to see that intellectual property rights are only in the best interest of corporations. And even without copyright or patent laws, there would still be engineers and inventors. It is pretty ridiculous that copyrighted works last almost a hundred years.
> You don't have to be a communist to see that intellectual property > rights are only in the best interest of corporations. What do you have to be, then? Because I can't agree with your claim as written. Replace the word "only" with "mostly" and I'll be there, but that's a pretty substantial difference. > And even without > copyright or patent laws, there would still be engineers and inventors. Sure, but what would they be engineering and inventing? Certain kinds of invention require resources that are far beyond what individual innovators can usually put together. Shall we just write off further progress in those areas? > It is pretty ridiculous that copyrighted works last almost a hundred years. At last we agree.. In my opinion some form of *LIMITED* intellectual property rights are appropriate to provide a sufficient economic incentive to invent and create. The problems are many but the foremost two (again, in my opinion) are: 1) extension/distortion of traditional IP rights at the behest of financially interested parties, with insufficient concern given to the public benefit, and 2) a flawed application and examination process which routinely grants improper patent rights for inventions which are trivial or obvious and which are so fundamental that the resulting patents have great value as an instrument of legal extortion or to prevent competition from others wishing to enter the field.
I agree with resp:34. As someone who works in IT, and who has a roommate who is an artist, I don't have the luxury of arguing that "information wants to be free" and intellectual property should be abolished. I enjoy eating and being able to pay rent.
your artist roomie pays for your food & rent ?
Part of it, yeah.
right on ! teamwork, man
Re #35: Agreed. A few decades ago, a work could be copyrighted in the US for a couple of dozen years or so (I think it was 29 years); the copyright was renewable once, for an equal period of time. After that, the work went into the public domain. With those time limits, copyright was in reasonable sync with authors' expected lifetimes. An author had economic incentive to create, yet the public interest in free dissemination of information was served as well. The great American literary works of the 19th century and most of the 20th century were created under these time limits. A couple of decades ago, they started lengthening copyright lengths drastically. I think this was not about incentives to create or serving the public interest, but all about certain politically influential corporations wanting to protect their profitable franchises. Sonny Bono should've stuck to singing and/or appearing in John Waters movies. Somehow, knowing that some publisher might be getting rich off of exclusive publishing rights to my novel 100 years from now is no incentive at all for me to write that novel. Spare me the arguments that long long copyrights encourage creativity. The patent system is also badly broken, as Mike points out in #35.
News item from a couple of weeks ago: Sharing certain kinds of "pre-release" files is now a 3-year felony, and the standards of proof required have been greatly lowered from the No Electronic Theft act of 1997, which had proven difficult to impossible to use. (To the best of my knowledge, the NET act was used to prosecute : one guy for pre-releasing "The Hulk," a handful of people who ran large-scale software distribution operations, and NOBODY for filesharing music.) One point I find interesting is that the wording defining what kinds of files qualify for this legal protection is very restrictive. TV shows which have had their initial broadcast in America, and music concert bootlegs, appear not to be covered; released CDs and DVDs are not covered. http://news.com.com/New+law+cracks+down+on+P2P+pirates/2100-1028_3-5687495. html?tag=nefd.pop Music journalist Bob Lefsetz thinks the music industry is being incredibly short-sighted in attempting to make criminals out of people who are creating "buzz" in advance of new releases. http://www.celebrityaccess.com/news/letter.html?id=215
The MPAA is now promoting draft legislation to explicitly grant the FCC the authority to regulate consumer electronics. Dunno if it'll go anywhere.
<shudder>
(The extended copyright/patent terms are also intended to benefit heirs and assigns: Kids want what their forebears created.)
They're excused as being intended to benefit heirs of the creators but I highly doubt that that was more than a convenient rationale for the people who fight for copyright extensions every time the clock starts ticking down and it looks like some will be allowed to expire.
Indeed; corporations like Disney have more political clout than "heirs".
Disney *is* an heir, but point taken.
The Disney corporation is not an heir of Walt Disney, the original creator of Mickey Mouse and several other of the classic Disney characters. In fact, in a number of instances in recent years the Disney family (Roy Disney in particular) has been publicly at odds with the Disney corporation. Also, virtually every major work created for (and owned by) the Disney corporation in the last fifty years has been work for hire. No heirs of the creative talents continue to benefit from the copyrights on works their parents created unless those creators took their compensation in the form of Disney stock. This fight really isn't about looking out for the orphan children of the tortured artist, though Disney's lawyers might like you to think that some such sympathetic figures are involved..
re resp:40: I have never seen any opposition to that viewpoint on Grex, and so I am going to run my ideas up the flag pole and see what happens to them when people try to shoot them down. Up until this century, all works of art were created by individuals or in rare cases, very small teams such as husbands and wives, or pairs of brothers. As far as I know, no corporation had ever created a work of art before this century. Patent law also had to go through the transformation from individual creation of inventions (Edison, Whitney, Tesla, etc.) to corporate creation (Bayer Corp, IBM, GE). No one person ever owned, or should have owned, the patent on the transistor, or Viagra. Those couldn't be created by an individual. The resources of a corporation were required or they never could have happened. The Disney Corporation has been a leader in expanding copyright law to cover materials created by a corporation, but they were also among the leaders in creating works of art in this manner. Copyright law was written to cover the period of time when the creation was of economic benefit to it's creator. For an individual, that is his lifetime. After he's dead, he's not much interested in protecting his copyright. But Disney does get a lot of continuing benefit from Walt Disney's signature creation, Mickey Mouse. Walt Disney built his corporation up from that image to it's current status as a multi- billion dollar empire. The Disney versions of "Cinderella", "Pocahantos" and "Toy Story" couldn't be done by a single individual. Too much manpower, and too many resources, are needed. "Toy Story" couldn't even be done by a single corporation. Disney and Pixar cooperated on it. So for these corporate creations, which had no existence preceding the initiative of their corporate originators, why shouldn't their corporations continue to have perpetual ownership? I don't think it has anything to do with sympathetic figures. I think it has to do with what's right. No one else is hurt by Disney continuing to own Mickey Mouse.
To nitpick, don't you mean "the previous century"? ;) I guess that I'd say that perpetual copyrights do have a negative influence on art, though - eventually we'll end up with all the ideas used, and big corporations (with vast armies of lawyers) ready to pounce on any possible infringement.
re #49: If Disney-style copyrights had been in place forever we wouldn't even *have* Disney versions of: Snow White, Cinderella, Beauty and the Beast, and many others.. The problem I have with Disney's position is that as far as I can tell they're only interested in what's good for Disney. Perhaps that's the duty they owe their shareholders but as my interests are not the same as theirs, I naturally find my position differing from theirs.
Re resp:50: It seems to be widely accepted as a truism now, in computer science, that it's probably impossible to write a program of any significant size without infringing at least one patent.
And don't forget [Registered] Trademarks...
Right. Or you're fired*! * "You're fired" is a registered trademark of Trump, Inc.
re resp:54: That's nuts, but I remember when IBM used to sue small computer companies who used the word "blue" in the names of any of their products. re resp:51: Copyrights are supposed to be used to protect specific stories, not plots. There aren't any new plots or unique ideas for stories, and haven't been for millenia. I'd agree with Disney being able to protect Mickey Mouse and the way they drew the ants in "A Bug's Life" and other such creations. "Aladdin" isn't a Disney creatio, but their movie version is.
Re resp:55: I also remember IBM successfully defending a trademark on "/2". (Remember the PS/2? They sued a company who came out with a product called the "Mouse/2".)
As in Epson's ESCP/2 printer? Modelled on the ESCP.
Know why they called it "Pentium"?
Because you can't trademark "586."
Re resp:55 - The thing is that "Snow White", "Hunchback of Notre Dame", and "Sleeping Beauty" *are* "specific stories". The Disney corporation has drawn deeply from the public domain well but doesn't seem to want to give anything back, ever. I doubt that's what the framers of the Constitution had in mind when they specified that copyrights should be for a "limited time". I can paint the same landscapes that Van Gogh painted, in exactly the way he did them (to the extent that my ability allows), and sell them, as long as I don't try to pass them off as genuine Van Goghs. Why shouldn't I be allowed to do that with Mickey Mouse, eventually? As McNally pointed out earlier, the Disney Corporation that has a lock on Mickey Mouse bears little correspondence to the geniuses that created the Mickey Mouse character: Walt Disney, Ub Iwerks, Floyd Gottfredson, and a handful of others. (Most folks have heard of Walt Disney, but the other two are not as well known...)
re resp:60: Copyright law never did mandate that anyone give up a financial interest in something he had created. It provided for copyright ownership to end at a reasonable period after the creator had died. The Disney Corporation, which collaborates the efforts of hundreds or thousands of artists to produce movies, has not "died". You can't "rewrite" Stephen King novels as accurately as possible and sell the result as original. Stephen King is still alive and owns his copyrights. There are movies out there with the same titles as Disney movies, obviously marketed in hopes of fooling people into buying them, thinking they're the Disney movie. I believe I've seen Pocahantos, Sleeping Beauty, The Beauty and the Beast, Cinderella, and doubtless others. Go to Toys R Us and you'll see them. I bet Toys R Us wouldn't carry them if it weren't legal to sell them. No one is preventing anyone from retelling fairy tales or making movies from them.
Are you talking about patents? We're discussing copyright.
I would like to think that, if five hundred years from now an artist wanted to make a holo-movie based on a Stephen King novel, he could do so without having to negotiate with Amagmated Old Books Inc.
I firmly believe he'll have to negotiate the rights with Stephen King's head-in-a-jar, ala Futurama.
One of my quarrels with copyright law is when a company "hoards" intellectual property by keeping the rights to a work, but refusing to publish it. A fair number of books, movies, and songs are "out of print" and not legally available in any form. It's hard to see how anyone benefits from that situation. At least if copyrights eventually expire, those works will eventually fall into the public domain and become available again.
You don't know anybody near the Lib of COngress that can run xeroxes for you?
Xeroxing an entire copyrighted work wouldn't be legal, though it's commonly done with out of print stuff.
re #67 "commonly done with out of print stuff" Exactly
That doesn't mean it's legal.
re #69 If legality of a xerox copy of a worn out library of congress out of print book really is a huge concern then you can always approach the copyright owner and ask permission for a personal pdf or xerox of it(and probably at a fee but still...it'd be legal then.)
You can ask, but they can either quote you an outrageous charge or (more likely) just ignore your request. And that's assuming you're able to even figure out who to ask.
If you are using the copy for academic purposes then its legal to copy the entire out of print text.
I oppose the entire concept of "intellectual property", for reasons similar to those expressed by janc in response 156 to item 93 for opposing bans on abortion.
If you wanna make a mouse story, invent your own damn mouse. WB created Speedy Gonzalez, "whoever" created Stuart Little.
And if you ever want to see "Song of the South" again, well, tough, 'cause Disney owns the rights and intends to never release it again. Of course it's not like they invented the stories depicted in the movie -- they used Joel Chandler Harris' popular retellings of African-American folk tales.. And "Stuart Little" was created by E.B. White. It's not his best work (I like "The Trumpet of the Swan", but "Charlotte's Web" has its following as well..) but you'd think people would remember the guy who wrote several of the most enduringly popular children's books.
I like how they skewed Pocahantas.
It is "Poke-her-in-da-hontas"... I think movies just like to ruin classic good books.
Re #75:
That's enough to make me rethink my position on copyrights... :S
Re resp:75: Disney is just lucky no one thought to pass that copyright extension law back then, or they wouldn't have any legal source material to base their movies on. ;)
They owe Annette and Cubby BIG TIME.
You have several choices: