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Copyright: Who Should Benefit?

Living with a three-year-old offers an odd perspective on the world. Whenever Tristan and other children his age play in each other’s vicinity, an important parental task is to break up squabbles over who’s playing with which toy for any given 30 seconds. "You need to share your trains with Peter," we’ll say, and we’ll hammer that lesson home 15 or 20 times in an afternoon.

Good thing we don’t have to explain the current hullabaloo surrounding intellectual property to him. "Why don’t the record companies want to let people share music?" he might ask. "Because they don’t want to, and they have contracts that say they can do whatever they want with it," we’d reply. "But if I don’t want to share toys with Peter, you tell me to put them up in your bedroom before he comes over. Why can’t they put their music away where no one can get it?" Here’s where we start to beat around the bush. "Well, because they want everyone to buy their music instead of sharing it." The three-year-old mind pounces. "So if Peter wants to play with my trains, I can make him give me a candy bar?" "No," we retort, falling back on parental say-so, "that’s not nice, you just have to share."

No Better Than Napster — It’s not a fair comparison. No one ever accused the record labels of being nice. Now that they’ve demonized the hydra-headed music sharing services as impoverishing hard-working artists, it turns out that – surprise! – the labels are putting the same screws to artists.

A recent New York Times article made known something recording artists have been complaining about for a while – the fact that Pressplay and MusicNet, both of which charge Windows-using music lovers to listen to music online, aren’t paying artists squat (where "squat" is defined as more than a fraction of a cent per download). Who knew the recording industry actually was interested in micropayments?

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That’s not all. Those contracts that give the labels the right to do whatever they want with artists’ music may not be so all-encompassing. A number of artists have demanded – with varying success – that their music be removed from MusicNet and Pressplay, even sending cease-and-desist letters. So it would seem to come down to the fact that these music industry services aren’t just charging Windows users for the privilege of downloading music from the Internet and failing to give any of the proceeds to artists, they’re doing it without permission in many cases. The difference between the recording industry and the music sharing services is blurring by the minute.

It’s not just the artists complaining, either. Ninth District Court Judge Marilyn Hall Patel, who has regularly ruled against Napster in the Recording Industry Association of America’s (RIAA) ongoing lawsuit against the company, on Friday ruled that the five major record labels must prove they own thousands of music copyrights (which requires proving that they were "works-for-hire" – essentially pieces commisioned by the record company, or created by artists serving as company employees). Judge Patel went even farther, ruling that the labels must prove that they didn’t use those questionable copyrights to smother online distribution of music. She wrote, "(The record labels’) allegedly inequitable conduct is currently ongoing and the extent of the prospective harm is massive. If Napster is correct, plaintiffs are attempting the near monopolization of the digital distribution market. The resulting injury affects both Napster and the public interest." Better start building hotels on Broadway and Park Place – it’s antitrust time!

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A CD Is a CD… Unless Philips Says Otherwise — On another front in the digital music wars, the music industry has taken two notable blows in its desire to sneak copy protection onto every music CD. The first hit came from Philips – the Dutch electronics giant which co-developed the Red Book standard for CD audio with Sony back in 1980 and which administers the official Compact Disc logo. Philips, it seems, is not amused by the fact that copy protection works by introducing errors onto music CDs such that computer CD players (not to mention DVD players) can’t read them. Philips representative Klaus Petri told Financial Times, "Those are silver discs with music data that resemble CDs, but aren’t." And Gerry Wirtz, general manager of the Philips copyright office, was quoted by Reuters as saying that Philips would force the record labels to yank the CD logo from copy-protected discs and add warning stickers for consumers. He went on to claim that future models of Philips drives would be able to read and burn the copy-protected discs, potentially running afoul of the Digital Millennium Copyright Act’s prohibition on devices that circumvent copy protection.

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Back in the mid-1980s, rock icon Frank Zappa dubbed Tipper Gore a "cultural terrorist" for getting warning labels on CDs. Karen DeLise may be next in line for a version of that title awarded by the music industry. Who’s Karen DeLise? She’s the person who sued Music City Records, Fahrenheit Entertainment, and Sunncomm (a digital rights management company) over the album "Charley Pride: A Tribute to Jim Reeves," the first copy-protected CD released in the U.S.

Her lawsuit complained that the warning label on the Charley Pride album didn’t say it couldn’t be played in computer CD players and that the music couldn’t be transferred to portable MP3 players. It also raised privacy concerns, because the digital rights management software from Sunncomm required users to register personally identifiable information with a Web site. The companies have now settled out of court, agreeing to stop tracking personally identifiable information, delete already collected information, and warn consumers that the CD doesn’t work in DVD players, MP3 players, or computer CD drives. Between lawsuits like this and Philips’s stance, copy-protected CDs may soon need warnings from the Surgeon General.


The fact that the disc was copy protected didn’t prevent tracks from appearing on the file sharing services before the CD was released in the U.S. Reportedly that’s because 2,000 copies were released unprotected in Australia earlier, but any copy protection scheme devised will be broken by someone, somewhere in the world, and it only has to happen once. Copy protection disappeared from most software because users hated it and it was too easily broken, and it’s going to fail in the music industry for the same reasons. It’s hard to have any sympathy – companies like Microsoft and Adobe have managed to eke out a few bucks even without copy protection.

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Meanwhile, Back in Court… Larry Lessig, mentioned in last week’s article about the Creative Commons project, is in front of the Supreme Court challenging the 1998 Sonny Bono Copyright Term Extension Act that extends existing copyrights by 20 years and lengthens future copyrights from 50 to 70 years after the death of the creator. Despite the name, the law was intended to protect not Bono’s saccharine paean to Cher, "I’ve Got You Babe," but that venerable American icon, Mickey Mouse. The problem is that by extending copyright terms, the vast majority of works languish outside of the public domain even longer than before. The defendants in this case – Eldritch Press and Higginson Books – want to reprint old books that would otherwise be unavailable because, quite frankly, almost no one wants to read them (Maurice Maeterlinck’s 1901 The Life of the Bee never made it onto my reading list). Just because something fails in the marketplace doesn’t mean it has no value in the marketplace of ideas.


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To my mind, copyright is intended to foster innovation and creativity by granting creators a time-limited monopoly. It’s important that copyrights are granted by the government, which, at least in the words of Abraham Lincoln (unless it was Benjamin Disraeli, being quoted by Mark Twain, as happened with last week’s quote about statistics), is "of the people… by the people… for the people." That means to me that granting of time-limited monopolies on creative works is, or at least should be, done to serve the public good through the encouragement of new works. Short of channeling through Shirley MacLaine, I can’t see authors contributing much new after they’ve been dead 1 year, much less 70 years. No creativity is enhanced by limiting access to something like The Life of the Bee, so why not serve the public good and let a few beekeepers read it on Eldritch Press’s Web site? Such limitations don’t apply just to unknown Web sites; the primary goals of libraries throughout history have been the preservation and sharing of knowledge, whether or not it was commercially viable or even politically fashionable.

Even more important, though it’s hard to imagine with The Life of the Bee, the creative works that make up our cultural heritage are the foundation upon which new works can be created. Snow White was a fairy tale long before Disney animated it, and West Side Story wouldn’t exist without Shakespeare’s Romeo and Juliet. It may be nearly impossible to create something new without reference or influence from a work of the past. Nowhere is this more obvious than in the work of compilation artists like Negativland. Everything they do is sampled from the work of others, but is what they create new? It seems that way to me – decide for yourself in this film (requires RealPlayer) that appropriates Disney’s Little Mermaid and much more (the film starts 20 minutes into an extremely interesting talk by Negativland’s Mark Hosler about fair use and the public domain). Also be sure to read the hilarious 1992 interview that Mark and Don Joyce of Negativland conducted with U2’s guitarist Edge about the lawsuit filed against Negativland by U2’s record label – it highlights the chasm that can exist between artists and their labels.

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Lest copyright take all the heat for being used in ways that don’t serve the public good, consider patents, such as British Telecom’s 1976 patent that supposedly covers the entire concept of hyperlinks. The fact that this seems truly inane hasn’t stopped BT’s lawyers from going after Prodigy, with other major Internet service providers and any other company using the Web to follow if they’re successful. Never mind that Vannevar Bush described the concept with the memex in 1945. Also, make sure to ignore Ted Nelson’s theoretical Xanadu project from the early 1960s, and definitely avoid Douglas Englebart’s 1962 paper on augmenting the human intellect and 1968 demonstration of NLS.

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Intellectual Property Ecosystem — Clearly something has to change, and the legislative approach of criminalizing increasingly common and profit-free behavior by individuals doesn’t cut it. It’s not that I believe recognizing and rewarding content creation is bad – I’ve based my entire professional life on it. At the same time, I have ensured that TidBITS has always been free, encouraged non-profit publications to reprint our articles, and posted best-selling books online in their entirety. I’m not even special – the Internet has enabled vast numbers of people to create and share information in the ultimate public domain, and many manage to do so in ways that directly or indirectly earn income.

I’ve used this analogy with the Macintosh industry before, but we’re really talking about an ecosystem of ideas here, and one that’s currently out of balance thanks to the influence of copyright-owning industries. Perhaps I’ve been forever contaminated with Ted Nelson’s utopian approach in Xanadu for crediting and recompensing content creators automatically with link metadata, but we as a society need to redirect efforts aimed at tightening control over content toward creating a system that offers a reasonable compromise between the needs and desires of producers, consumers, and that elusive concept of the public good. Even better, I’d like to be able to explain the result to my three-year-old.

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