well. i read the articles on Prince's website and janis ian has alot good ideas. i admire Prince for he is very proactive on artists rights and is done with the industry as far as pop radio, he is a true muscian and is in it for the music, his writings have really opened my eyes as far as the music industry and its practices...
Roger Clyne is still making the bestist funist kickingist music in Arizona, and traveling to a town near you, and doing it without support of a Lable, so go support him!
I’ve been lurking on this site, and pocketpcpassion, for a few months. I was interested in the iPaq 3970, but decided against it in favor of waiting for the 5000 series. Because I was focused on my potential purchase, I didn’t explore the other forums at either website. Eventually, over at the pocketpcpassion site, I came across some threads containing spirited debate regarding DRM, Fair Use, copyright law, and the music industry. Since I had received so much valuable info from others relating to my interest in the 3970, I thought I would post and contribute some of my expertise regarding DRM, Fair Use, copyright law, and the music industry.
That experience motivated me to see if there were similar discussions going on over here at pocketpcthoughts. Sure enough, I found this thread (i.e., “Bypass the recording execs"), “file sharing services not the reason for music sales decline,” and others dealing with the same topics mentioned above. Therefore, I thought I would post here some of the information I shared in the forums over at pocketpcpassion.
I would have started a new thread, but it's my understanding that only administrators can do that. And, rather than responding to the different posts in this forum individually, I have decided to combine the info in one place and separate the info best I can by issue.
By way of general background, I am a music attorney and have worked on matters involving artists as diverse as Tupac Shakur and Larry Carlton, Julio Iglesias and Babyface, Chaka Khan and Luciano Pavarotti, Mana and Jill Scott, and many others. I have worked on producer agreements for clients who have produced such artists as Brandy, Whitney Houston, Toni Braxton, TLC, Will Smith, Janet Jackson, Dream, and many others. Thus, the information that follows is based primarily on my experience with what I will call the “U.S. major label music industries” and U.S. law. I recognize, of course, that there is a much bigger world out there and there are always exceptions, but I am focusing on the “general rules.”
My goal in writing this missive is primarily to provide input based on facts. The information that follows is not centered around any particular philosophical or moral beliefs, but, rather, is information that may be of interest to some in shaping their beliefs, feelings, and thoughts with respect to the issues being discussed. In addition, the issues are in no particular order of importance and are not meant to be in response to any particular post.
I was told at the other site by some that I should “condense” my posts and provide a “very simplified summary with direct conclusions” (i.e., my posts were too dense), but that would change the nature of my posting style. I prefer letting people draw their own conclusions which may be different and, perhaps, more accurate than mine. For example, you can give several lawyers the same case to read and they can come to different conclusions about what the court said and meant. In fact, the Supreme Court is often called upon to resolve inconsistencies in court decisions from various federal district courts (i.e., similar cases in different parts of the country have been decided differently under the same federal law). So, without further ado, let the missive begin.
1. “Why aren’t the record companies making the music from all of their artists available on the Internet?”
There are many contractual issues that play a role in this issue. For example, in most artists’ agreements, there is a provision that is known as the “anti-coupling” clause. This clause has traditionally allowed an artist to prevent a record company from combining more than one or two of the artist’s singles with the recordings of others (e.g., compilations). This anti-coupling clause is now incredibly important given the nature of authorized online music services that are attempting to provide custom compilations and/or streams of different artists. Some artists are using this leverage (i.e., the need for permission from the artist to combine their recordings with other artists) to demand that record companies alter the existing terms of their recording agreement. Some labels have chosen not to agree to these demands and have simply not included the artist’s music in the online services. The point here is not whether artists should or should not make these demands, but simply to point out that there can be many reasons why all your favorite artists are not available for compilations and/or through authorized online services.
2. What is Fair Use?
In part, the Constitution and Congress attempt to balance the rights of copyright owners with the public welfare. Accordingly, the exclusive rights given to copyright owners are tempered by exceptions and limitations. One such limitation is the doctrine of “Fair Use.” Although it existed in case law for over a hundred years, the judicial doctrine of fair use was finally enacted as section 107 of the Copyright Act.
Section 107 of the Copyright Act currently provides:
§ 107. Limitations on exclusive rights: Fair use. Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Thus, fair use is a highly fact specific, case-by-case analytical tool that courts can use to determine if any particular use of copyrighted works by a defendant is a fair use. As you might guess, given its vague contours, fair use cases are rarely predictable. Most importantly, it is a defense to copyright infringement rather than a “right.” The confusion is exacerbated when elected officials and others continue to refer to it as a right. Obviously, this is a very brief overview of a highly technical subject, but, hopefully, sheds some light in a poorly lit area.
3. Do Artist’s get “hurt” by unauthorized downloads and file trading?
It’s important to understand the differences between “artist royalties” versus “songwriter royalties” in connection with the discussion of whether an artist gets “hurt” by unauthorized downloads and file trading. It is commonly believed that the record company accounts connected to recording artists are highly unrecouped (i.e., the costs of making their album, videos, etc. versus sales have left the artist owing money to the record company). This leads people to believe that an artist wont see any money from the sales of albums anyway and, therefore, not buying the album doesn’t take money away from the artist. While this can be true, I think it’s important to point out that songwriters are often not operating under these conditions. For example, artists that write their own music are often paid for the use of that song on their album (i.e., their songwriter royalty) even if they are not being paid a royalty for performing that song (i.e., their artist’s royalty). This problem is particularly acute for songwriters who submit their work to be covered by someone else. For those songwriters, unauthorized downloads and trading often result in direct financial loss.
4. How can Fair Use and DRM co-exist? For example, if it’s okay to make a cassette tape from a vinyl album, then isn’t it okay to make an MP3 file from a DVD?
This issue requires that you shift the focus from the concept of “Fair Use” to the concept of “Anti-Circumvention.” Stop thinking about copyright and start thinking about the Digital Millennium Copyright Act
Background
Congress enacted the Digital Millennium Copyright Act (“DMCA”) in 1998, to bring the U.S. in line with the World Intellectual Property Organization Copyright Treaty (“Treaty”). The Treaty requires signatories to, among other things, “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights… and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.” While considering the DMCA, Congress was faced with attempting to comply with the Treaty, combat piracy, preserve fair use rights, and all of it had to be done in accordance with the Constitution. Ultimately, the DMCA contained an anti-circumvention provision that prohibits the use of circumvention technology.
The first legal challenge that squarely pitted the notion of fair use against the anti-circumvention provision of the DMCA came in Universal City Studios, Inc. v. Reimerdes. The pertinent facts were as follows (i) All major movie studios encrypt DVD movies with “Content Control System” (CSS) so that the movies cannot be copied to a computer hard drive or other discs; (ii) A Norwegian teenager reversed engineered CSS and created a computer program called "DeCSS"; (iii) DeCSS allowed users to circumvent CSS technology and freely copy and manipulate DVD movies; and (iv) the movie studios filed suit to stop the dissemination of DeCSS.
Specifically on point for purposes of this thread, the defendants claimed that DeCSS allowed users to make fair use of copyrighted works under the traditional meaning of the term, and could not be banned by the DMCA. You can read for yourself below, but the appeals court agreed with the trial court and concluded that fair use is not a defense to violations of the DMCA. In essence, the court said that fair use was a defense to "copyright infringement" only, while the defendants in this case were guilty of circumventing technologies that protect copyrights, not of infringing copyrights themselves. The court concluded by saying that “Defendant’s statutory fair use argument therefore is entirely without merit.”
Should you care to, the relevant portions regarding fair use from Universal City Studios, Inc. v. Reimerdes follow:
Finally, defendants rely on the doctrine of fair use. Stated in its most general terms, the doctrine, now codified in Section 107 of the Copyright Act, limits the exclusive rights of a copyright holder by permitting others to make limited use of portions of the copyrighted work, for appropriate purposes, free of liability for copyright infringement…. It has been viewed by courts as a safety valve that accommodates the exclusive rights conferred by copyright with the freedom of expression guaranteed by the First Amendment. The use of technological means of controlling access to a copyrighted work may affect the ability to make fair uses of the work.
Focusing specifically on the facts of this case, the application of CSS to encrypt a copyrighted motion picture requires the use of a compliant DVD player to view or listen to the movie. Perhaps more significantly, it prevents exact copying of either the video or the audio portion of all or any part of the film. This latter point means that certain uses that might qualify as “fair” use for purposes of copyright infringement -- for example, the preparation by a film studies professor of a single CD-ROM or tape containing two scenes from different movies in order to illustrate a point in a lecture on cinematography, as opposed to showing relevant parts of two different DVDs -- would be difficult or impossible absent circumvention of the CSS encryption. Defendants therefore argue that the DMCA cannot properly be construed to make it difficult or impossible to make any fair use of plaintiff’s copyrighted works and that the statute therefore does not reach their activities, which are simply a means to enable users of DeCSS to make such fair uses.
Defendants have focused on a significant point. Access control measures such as CSS do involve some risk of preventing lawful as well as unlawful uses of copyrighted material. Congress, however, clearly faced up to and dealt with this question in enacting the DMCA….
The policy concerns raised by defendants were considered by Congress. Having considered them, Congress crafted a statute that, so far as the applicability of the fair use defense to Section 1201(a) claims is concerned, is crystal clear. In such circumstances, courts may not undo what Congress so plainly has done by construing the words of a statute to accomplish a result that Congress rejected. The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress’ decision contravenes the Constitution, a matter to which the Court turns below. Defendant’s statutory fair use argument therefore is entirely without merit.”
So let me recap Universal City Studios, Inc. v. Reimerdes:
1. The DMCA says you can't circumvent a technological measure that controls access to a copyrighted work.
2. Vinyl album = no DRM (i.e., no protection) and, therefore, making a cassette of an album is not violation of the DMCA because you have not circumvented a technological measure.
3. Assuming a CD/DVD is protected, then the copyright holder is using a technological measure that effectively controls access to the copyrighted work.
4. Two more parts of the DMCA combine to say that no one shall create any technology that aids someone in avoiding, bypassing, or otherwise impairing that technological measure.
Like I said, I prefer to let people form their own opinions, but the court seems pretty clear. I’m not debating whether the court is right or whether the DMCA is constitutional, but I do think that people who argue by analogy that something is “fair use” under the copyright law need to consider whether that same use is legal in light of this case and the DMCA’s anti-circumvention provisions.
Finally, I wont often post humorous anecdotes, but this one is just to timely, on point, and unbelievable not to share with the readers of this thread. In an article written by Chris Nelson that appeared in the September 16, 2002, New York Times, it was revealed that the Epic Records Group, a unit of Sony Music, has come up with a "new" form of DRM ;-) It seems that the music critics who are receiving advance copies of the soon-to-be-released albums by Tori Amos and Pearl Jam are receiving the CD's already inside Sony Walkman players that have been glued shut. Headphones are also glued into the players in an effort to try and prevent connecting the Walkman to a recording device. One would assume that by locking up the discs, Epic is trying to prevent the music critics from ripping the CDs to MP3 files and placing them on the Net.
Obviously, I don't think it requires a lot of discussion regarding why this approach may not work. Perhaps, just as obvious, a Sony spokeswoman declined to comment.
5. What is the RIAA?
The RIAA is a trade organization. Its goal is to represent its members (i.e., some 400 member record companies) in connection with those issues that affect the recording industry. They represent them through the use of various methods that include lobbying and legislation. They do not sign artists nor do they directly promote, distribute and/or sell records. You can disagree, as do I, with some of their legislative proposals or with their involvement in some of the litigation they have brought, but they are doing what they and any other trade organization are designed to do.
Looking forward to any further discussion and/or questions.
Well, there are WAY too many lawyers, for starters. There's that joke about a thousand lawyers at the bottom of the ocean being called 'a good start', but I don't think it goes far enough. How about burning down all the law schools? Of course, education generally would have to be funded better and otherwise upgraded to compensate for the sudden need for people to use their own damned brains to do their thinking, but is that too much to ask?
Really, I am not even joking a little. The above post is so very typical in its display of how the twisting of language, the manipulations of ethics by those with money and power, and intimidation generally all contribute to the ever-increasing entropic status of what was once known as 'common sense'. We haven't got that tool any more. The lawyers have co-opted it! They've been busy little beavers, telling us millions of times over that we, the mere general public, are too uneducated, even too stupid to think for ourselves in matters of justice and honour. It's pathetic.
So the lawyers will continue to escalate this war, making ever less transparent (and of course, ever-more-profitable - let's not forget how much money the legal industry makes out of all this garbage!) rules we are to be forced to live by, controlling our very thoughts if they can figure out how to make it stick. Obviously this thread and others like it are arguments for a revolution, not mere chatter on the niceties of the finer points of the interpretations of the precedents of the cases of the................ oh good grief.
.........................................
"It is commonly believed
that the record company
accounts connected to
recording artists are highly
unrecouped (i.e., the costs of
making their album, videos, etc.
versus sales have left the artist
owing money to the record company)."
Just had to see that in print again. Oh, that's good. And performers are always saying tours make no money too. Gee, I wonder how Madonna got so rich? Donations, maybe? How about all the other pop-crap 'artists'? Why are there so many rich stars? And the recording companies with their banks of lawyers, their limousines, their towers of glass in the most expensive parts of big cities, the 8 and 9 figure incomes of their top executives, where do those come from? Really, you must think we are rather naïve to try and slip that one past. Or have I misunderstood your comment somehow? If so, please accept my sincere apology. I do sometimes miss the obvious. But have I here?
"Well, there are WAY too many lawyers, for starters. There's that joke about a thousand lawyers at the bottom of the ocean being called 'a good start', but I don't think it goes far enough. How about burning down all the law schools? Of course, education generally would have to be funded better and otherwise upgraded to compensate for the sudden need for people to use their own damned brains to do their thinking, but is that too much to ask? Really, I am not even joking a little."
You are certainly not alone in you opinion about lawyers, but, other than venting your feelings, I'm not exactly sure what this ad hominem attack does to support your response to MY post. Nonetheless, your feelings are duly noted.
"The above post is so very typical in its display of how the twisting of language, the manipulations of ethics by those with money and power, and intimidation generally all contribute to the ever-increasing entropic status of what was once known as 'common sense'."
Kindly enlighten me with specific examples of how my post displayed the above referenced "twisting of language," "manipulations," and "intimidation."
"We haven't got that tool any more [i.e., common sense]. The lawyers have co-opted it! They've been busy little beavers, telling us millions of times over that we, the mere general public, are too uneducated, even too stupid to think for ourselves in matters of justice and honour. It's pathetic."
As I stated throughout my post, my goal in writing the missive was to provide input based on facts. Facts are often used by people who are interested in informed and reasoned debate. If there is any information that you believe is factually incorrect, by all means, point it out. Also, you may already be aware of this information which is why I qualified it as "information that may be of interest to some."
Also, throughout my post, you might have noticed things like: (i) "The information that follows is not centered around any particular philosophical or moral beliefs"; (ii) "I prefer letting people draw their own conclusions"; (iii) "The point here is not whether artists should or should not make these demands"; and (iv) I’m not debating whether the court is right or whether the DMCA is constitutional." Therefore, please point out where anything I have written suggests that the "general public" is "too stupid to think for ourselves in matters of justice and honour."
Another reason I thought some of the people in this forum might find the information interesting and/or useful was based on the responses I received to this same information from some people over at pocketpcpassion such as the following: (i) "Music Attorney, after years of hearing both the people who think trading is stealing and those who use "Fair Use" and the Betamax case to justify ripping and redistributing DVDs it is great to have someone who actually works with these laws to post information."; (ii) "Music Atty, I enjoyed your first two posts. They even made me think of writing to Dale to request a Slashdot-style moderated thread rating system, to percolate insightful analysis such as yours to the top."; and (iii) Music Attorney, thanks! Your amazing post is the most complete and succinct summary of copyright law and fair use I have ever seen in a user's forum." It seemed to me that some people found the stuff interesting and/or useful. Clearly, YMMV.
"So the lawyers will continue to escalate this war, making ever less transparent (and of course, ever-more-profitable - let's not forget how much money the legal industry makes out of all this garbage!) rules we are to be forced to live by, controlling our very thoughts if they can figure out how to make it stick."
Agreed, which is why it is important to understand that which exists, why it is being changed, and how.
"Obviously this thread and others like it are arguments for a revolution, not mere chatter on the niceties of the finer points of the interpretations of the precedents of the cases of the................ oh good grief."
It seems to me that points #1, #3, and #5 have little or nothing to do with "chatter on the niceties of the finer points of the interpretations of the precedents of the cases…." If by "arguments for a "revolution" you mean that the digital delivery of art will shift the current paradigm of the music industries, then I agree. However, if you discount the role of the legal and legislative process in that shift, then I disagree.
"It is commonly believed that the record company accounts connected to recording artists are highly unrecouped (i.e., the costs of making their album, videos, etc. versus sales have left the artist owing money to the record company)." Just had to see that in print again. Oh, that's good. And performers are always saying tours make no money too. Gee, I wonder how Madonna got so rich? Donations, maybe? How about all the other pop-crap 'artists'? Why are there so many rich stars?"
If you are saying that any significant percentage of recording artists are recouped (i.e., receiving royalties based on sales), then you are just flat out wrong. I have reviewed many artist's royalty statements, and, with the rare exception, they are not accompanied by royalty checks for their services as performing artists. You may recall from my post that I stated my information was based on my experience with the "major labels" and that I was focusing on "general rules." Madonna is clearly not the general rule. Let's discuss the other 95%+ of artists on her same label.
"And the recording companies with their banks of lawyers, their limousines, their towers of glass in the most expensive parts of big cities, the 8 and 9 figure incomes of their top executives, where do those come from?"
I don't disagree that record companies can be highly profitable nor do I disagree that some record company employees are overpaid. But, again, it's not the recording artists that are receiving a significant share of that money.
"Really, you must think we are rather naïve to try and slip that one past."
I didn’t try to slip anything past anyone. If you believe that 50%, 75%, or more of the recording artists signed to major label recording agreements are getting "rich," then you, my friend, may want to look up the word naïve in Merriam-Websters where you will find an 8 x 10 glossy of your face.
"Or have I misunderstood your comment somehow? If so, please accept my sincere apology. I do sometimes miss the obvious. But have I here?"
In keeping with my general approach, I'll leave that to your discretion.
Not eveyone's taste
Linear Mode
