The recording industry, RIAA and intellectual property

In a Daily Dish post titled, “Copyright and Incentives, Ctd.,” which covers a much more broad concept behind copyright, intellectual property, patents and trademark issues, a Dish reader provided a very succinct view of how and why the RIAA and music industry have gone completely wrong in battling their customer base over digital recordings:

The record companies’ problem is that technology — the internet on the distribution side and the laptop and other personal recording technologies on the creation side — has made the record company’s traditional role as financer and distributor of works increasingly irrelevant.  They are using the intellectual property laws to protect a distribution model that is largely outdated.

I’d say you could even argue the RIAA is abusing intellectual property laws and slowly killing itself and the entire existing recording industry in the process.

RIAA afraid of light of day

One more reason to oppose the losing battle the RIAA seems determined to keep fighting. I love the recording industry and hate to watch what this dinosaur in its death throes is doing in terms of public relations and sector growth.

At this point the RIAA needs to be euthanized and the labels ought to get together and create something that works in the 21st century. The old guard had its try and failed miserably.

From the Boing Boing link:

Campaigning law prof Charlie Nesson wants the whole world to see how the RIAA shakes down students, so he’s asked for the proceedings to be webcast. The RIAA wants to hide under a rock:

A Harvard Law professor representing some students sued by the recording industry for illegally downloading music has filed a motion to broadcast online the proceedings of two cases being heard by the U.S. District Court in Massachusetts.The professor, Charles R. Nesson, argues in the motion that to stream the court proceedings over the Internet — or as the students put it in their request, ‘admit the Internet into the courtroom’ — would help the public understand the legal issues at play in the industry’s lawsuits against thousands of computer users, many of whom are college students.

RIAA losing battles and already lost war

I’ve done some blogging on the RIAA and MPAA copyright battles. I love the entertainment industries, but these organizations are doing much more harm than good suing ordinary people and flailing about in death throes.

And even the base strategy is a losing propostion. I think the war is long over even if both are still fighting.

From the second link, a New America Foundation analysis:

The Recording Industry Association of America (RIAA) has been taking a lot of people to court–basically, harassing folks in an attempt to curb file-sharing. The $220,000 verdict against Jammy Thomas got a lot of news (and probably worried a lot of folks). However, on appeal (i.e., after a new court not cherry-picked by the RIAA to try the case looked things over), the RIAA lost… again. ZDnet covered the verdict.

At its heart, the verdict reaffirms that simply making a copyrighted work available is not the same as actually distributing the work. In other words, copyright holders actually have to show harm before they can sue the pants off of people. More importantly, it lends yet more weight to the notion that our copyright laws are woefully out of date and that the RIAA has systematically overstepped the legal bounds of its authority under existing copyright law.

A chink in the RIAA’s legal armor?

I love the music industry. I even have a vested interest in the music industry succeeding. It’s just the old system no longer works. Digital files, and their inherent purity through virtually unlimited copies, have changed the entire ballgame.

The RIAA either does not get it, or more likely doesn’t like the fact their psuedoextortionist racket no longer rules the land. The major labels didn’t get it for the longest, but I do think these behemoths realize accommodations have to be made in order to remain viable, ongoing concerns.

I’ve blogged on the evils of the RIAA and the troubles facing the music industry here, here and here.

Now there’s some decent legal news on the asinine lawsuits the RIAA continues to file against ordinary people who get caught up in their quasi-legal dragnet.

If a new trial is granted for Jammie Thomas, the RIAA may find itself in a very difficult legal position going forward. And hopefully an actionable position from those it’s already railroaded with frivolous, punitive lawsuits.

From the WSJ link:

Judge Davis told the jury that making songs available online for distribution to others was copyright violation and that the record companies did not have to prove distribution took place. He has since learned of a federal district-court case in Phoenix that ruled that making songs available was not copyright violation. He is weighing granting Ms. Thomas a new trial.

If one is granted, one outcome could be a higher bar for what record labels need to prove to demonstrate that copyrights have been violated. For example, evidence that more than a handful of songs on a shared file folder were distributed to others may be needed.

“It’s going to be more difficult for them to prove” if they can’t simply rely on showing that songs were in somebody’s shared file folder, says Brian Toder, a partner at Minneapolis-based Chestnut & Cambronne who is representing Ms. Thomas.

The RIAA is really looking out for the artist

The RIAA and recording companies are certainly doing a bang-up job of protecting the artists creating every work named in every lawsuit.

Oh, you mean they’re only protecting their money, not the artist?

From Hit & Run:

Surprise! Actual musicians have gotten diddly from the $370 million copyright infringement settlement between record companies and Napster et al.

Artist managers are girding for battle with their music overlords over when their clients are going to see some of the dough negotiated last year in copyright-infringement settlements with a host of Web sites….

“Artist managers and lawyers have been wondering for months when their artists will see money from the copyright settlements and how it will be accounted for,” said lawyer John Branca, who has represented Korn, Don Henley, and The Rolling Stones, among others. “Some of them are even talking about filing lawsuits if they don’t get paid soon.”

Way to encourage and reward innovation, intellectual property law!

Selectable Output Control — Hollywood v. the consumer

These battles are growing very, very old. You’d think Hollywood would’ve gotten the message from the RIAA’s brainless battles against the digital world that this is going to solve very little to nothing, but the blowback can and will be significant. Just another entertainment dinosaur howling and thrashing at the changing world of smaller, nimbler and smarter competitors.

From the boing boing link:

Alex sez,

The battle over your home entertainment equipment is heating up again and the time to make your voice heard is now. Hollywood wants the FCC to grant the studios permission to engage in so-called “”Selectable Output Control.” SOC is a tech mandate that would allow movie studios to shut off video outputs on the back of your cable box and DVR during the screening of certain movies over cable.

Also from the link:

Yes, you read that right. The studios want the right to randomly switch off parts of your home theater depending on which program you’re watching. And the FCC is taking this batshit proposal seriously.

So do something.

Tell the FCC to Say “No” to the Cable Kill Switch (Thanks, Alex!)

Music industry loses another toe …

… in yet another self-inflicted injury. You get the feeling the RIAA, ASCAP and other industry organizations are out to destroy commercial music. The industry has evolved, these tired dinosaurs haven’t and keep flailing about damaging everything in their path.

From the link:

A digital rights group is contesting a U.S. music industry association’s assertion that royalties are due each time a mobile phone ringtone is played in public. The American Society of Composers, Authors and Publishers (ASCAP) filed suit against AT&T asserting that ringtones qualify as a public performance under the Copyright Act. ASCAP, which has 350,000 members, collects royalties and licenses public performances of works under copyright.

The Electronic Frontier Foundation (EFF), however, asserts that copyright law exempts performances made “without any purpose of direct or indirect commercial advantage,” which would include a ringtone heard in a restaurant.

The organization further argued that the move by ASCAP could jeopardize consumer rights and increase costs for consumers. The EFF filed an amicus brief for the case on Wednesday in U.S. District Court for the Southern District of New York.”These wrongheaded legal claims cast a shadow over innovators who are building gadgets that help consumers get the most from their copyright privileges,” the EFF said in a blog post.

Facebook takes Europe

A release from the wee hours of this morning:

LONDON, April 15/PRNewswire/ —

    – Facebook Captures #1 Ranking in Spain for the First Time in February

    comScore, Inc. (Nasdaq: SCOR), a leader in measuring the digital world,
today released an analysis of Facebook’s growth in Europe during the past
year. As the popular social networking site has increasingly focused its
attention on global expansion and increased penetration across countries and
regions, the site has catapulted to the #6 ranked Web property worldwide with
275 million visitors in February, a 175-percent increase versus year ago. One
of the global regions that best illustrates Facebook’s growth is Europe,
where the site has seen a 314-percent increase to nearly 100 million
visitors.

    (Logo: http://www.newscom.com/cgi-bin/prnh/20080115/COMSCORELOGO)

    Not only does Facebook have a growing audience, it is also a highly
engaged audience with the average user spending three hours per month on the
site. One year ago, Facebook usage accounted for 1.1 percent of all minutes
spent online in Europe, but by February 2009 that number had increased to 4.1
percent of all minutes. Facebook also accounts for a full 30.4-percent of
minutes spent in the social networking category, up from 12.3 percent a year
earlier.

   
    Facebook Share of Time Spent in Europe
    February 2009 vs. February 2008
    Total Europe, Age 15+ – Home and Work Locations
    Source: comScore World Metrix
   
                                         Share of Minutes
                                         Feb-08    Feb-09
   
    Share of Total Internet Minutes        1.1%      4.1%
    Share of Social Networking Minutes    12.3%     30.4%

    “Facebook has very quickly taken a leading position across most of the
European social networking market despite having a strong foothold in just a
few European countries one year ago,” said Mike Read, comScore Managing
Director of Europe. “Over the course of the past year, it has climbed the
rankings in virtually every market and taken over the top position in
several. Most recently, Facebook grabbed the top position in Spain after
nipping at the heels of a leading local player for the past several months.”

    Facebook Leads in Spain, Most of the Rest of Europe

    Facebook has taken a leading position in the social networking category
across the majority of countries in Europe in recent months. Of the 17
European countries individually reported by comScore, Facebook owned the top
position in the social networking category in 11 of them. The site’s audience
is largest in the U.K. with 22.7 million visitors (up 75 percent versus year
ago), followed by France with 13.7 million visitors (up 518 percent) and
Turkey with 12.4 million visitors (year ago data not available).

    Most recently, Facebook captured the top spot in the Spanish market in
February with 5.7 million visitors, representing a dramatic tenfold increase
versus year ago. It has also soared in Italy, growing more than 2,700 percent
to 10.8 million visitors.

   
    Facebook Growth in Europe
    February 2009 vs. February 2008
    Total Europe, Age 15+ – Home and Work Locations
    Source: comScore World Metrix
   
                                        Unique Visitors (000)
    Facebook.com                                             Rank in Social
                                              Percent     Networking Category
                        Feb-08      Feb-09    Change           in Feb-09
   
    Europe              24,118      99,776      314%                1
    United Kingdom      12,957      22,656       75%                1
    France               2,217      13,698      518%                1
    Turkey*                N/A      12,377       N/A                1
    Italy                  382      10,764     2721%                1
    Spain                  515       5,662      999%                1
    Germany                680       3,433      405%                4
    Belgium                327       2,308      607%                1
    Sweden               1,211       2,298       90%                1
    Denmark                533       2,022      279%                1
    Switzerland            282       1,690      499%                1
    Norway                 819       1,479       81%                1
    Finland                555       1,341      142%                1
    Netherlands            236       1,031      337%                2
    Austria                112         663      491%                2
    Ireland                203         512      153%                2
    Russia                 117         478      309%                7
    Portugal                72         193      169%                3

    *Turkey is a newly reported individual country in comScore World Metrix;
year ago data not available

    The only countries in which Facebook does not hold the #1 or #2 position
in the social networking category are Germany, where it ranks fourth, Russia
(#7) and Portugal (#3).

    About comScore

    comScore, Inc. (NASDAQ: SCOR) is a global leader in measuring the digital
world and preferred source of digital marketing intelligence. For more
information, please visit www.comscore.com/companyinfo.

Source: comScore, Inc.

The digital world and the entertainment industry

I’ve blogged on the battle betweendigital media and the entertainment industry (link goes search for RIAA, but both RIAA and MPAA are equally stupid on this topic. The RIAA is just a little more stupid) and how futile this fight is for the dinosaurs.

In fact, the war is over and the industry has lost. Lost credibility, angered customers and is now way behind a curve that could have been used as a slingshot into the future. Instead both the RIAA and MPAA are floundering.

I don’t the MPAA is going anywhere, but I wouldn’t be the least bit surprised if the RIAA either ceases to exist, or continues in a radically different form within five years. I can see the major labels pulling away from an organization that increasingly acts like a cornered, dying beast.

Here’s a story on how “digital pirates” are blowing past every blockade Hollywood movie studios throw in the way.

From the link:

On the day last July when ”The Dark Knight” arrived in theaters, Warner Brothers was ready with an ambitious antipiracy campaign that involved months of planning and steps to monitor each physical copy of the film.

The campaign failed miserably. By the end of the year, illegal copies of the Batman movie had been downloaded more than seven million times around the world, according to the media measurement firm BigChampagne, turning it into a visible symbol of Hollywood’s helplessness against the growing problem of online video piracy.

 

The culprits, in this case, are the anonymous pirates who put the film online and enabled millions of Internet users to view it. Because of widely available broadband access and a new wave of streaming sites, it has become surprisingly easy to watch pirated video online — a troubling development for entertainment executives and copyright lawyers.

Hollywood may at last be having its Napster moment — struggling against the video version of the digital looting that capsized the music business. Media companies say that piracy — some prefer to call it ”digital theft” to emphasize the criminal nature of the act — is an increasingly mainstream pursuit. At the same time, DVD sales, a huge source of revenue for film studios, are sagging. In 2008, DVD shipments dropped to their lowest levels in five years. Executives worry that the economic downturn will persuade more users to watch stolen shows and movies.

Associated Press facing real heat

It’s about ‘effin time. The “Anachronistic Press” has been so brain dead about everything internet it’s sad. Reminds me of the RIAA and MPAA’s futile and doomed efforts against this digital world.

From the BuzzMachine (first) link:

So now Tribune Company has given the AP notice – two years’ – to cancel, joining the Minneapolis Star Tribune, Bakersfield Californian, Idaho Falls Post Register of Idaho Falls, and Yakima Herald-Republic and Wenatchee World. These are more than shots across AP’s bow. They are shots at the AP, which has to reinvent itself. More on that later.

If you have an interest in online copyright …

… piracy and what can be considered fair use, go read this essay by Lawrence Lessig at the Wall Street Journal.

I’ve blogged on the idiotic crackdown by both the RIAA and the MPAA on online file trading. There are arguments on both sides — there is some real piracy out there and there’s lot of fair use, with a bit of actual piracy thrown in that actually increases sales by giving consumers a taste of the product.

The fact is the recording and motion picture industries have already lost this war, even as they occasionally win one of their one-sided-legally battles. You could think of pre-digital files as the age of the dinosaur and this new era of data storage and selling/trading/sending as the dawn of the age of the mammal. We know how the original end of that metaphor turned out.

From the link, but do go read the entire piece:

In early February 2007, Stephanie Lenz’s 13-month-old son started dancing. Pushing a walker across her kitchen floor, Holden Lenz started moving to the distinctive beat of a song by Prince, “Let’s Go Crazy.” He had heard the song before. The beat had obviously stuck. So when Holden heard the song again, he did what any sensible 13-month-old would do — he accepted Prince’s invitation and went “crazy” to the beat. Holden’s mom grabbed her camcorder and, for 29 seconds, captured the priceless image of Holden dancing, with the barely discernible Prince playing on a CD player somewhere in the background.

Ms. Lenz wanted her mother to see the film. But you can’t easily email a movie. So she did what any citizen of the 21st century would do: She uploaded the file to YouTube and sent her relatives and friends the link. They watched the video scores of times. It was a perfect YouTube moment: a community of laughs around a homemade video, readily shared with anyone who wanted to watch.

Sometime over the next four months, however, someone from Universal Music Group also watched Holden dance. Universal manages the copyrights of Prince. It fired off a letter to YouTube demanding that it remove the unauthorized “performance” of Prince’s music. YouTube, to avoid liability itself, complied. A spokeswoman for YouTube declined to comment.

Seth Godin lectures the music industry

Seth Godin did a presentation on the music industry for recording executives. Here’s a link to a transcript of that talk.

I’ve blogged about the recording industry, the RIAA and some solutions being bandied about, and I think Godin has some interesting things to add to the conversation.

From the transcript:

The next thing we talked about, this technology wasn’t as good as we hoped when we started. And it’s had a lot of side effects, the biggest one of course being it’s digital. And once you make it digital, all of a sudden the math changes. Because, it used to be if I gave you my record, I didn’t have my record anymore. And now, it’s if I give you my record, I still have my record. And that’s different. I’m not saying it’s better, I’m not saying it’s worse. I’m not saying it’s moral, or immoral, I’m just saying it’s different and we got to accept that. And, one of the side effects of that is that something has fundamentally shifted here. Now, I’m going to give you a little bit of a preview which is, I think the internet is the new radio. And I think we’re needing, in the record business, people in the record business are going to have to think about the fact that, that might be a really good thing, not a really bad thing. And, we’ll come back to that in a minute.

The next idea is this idea that American Top 40, Casey, I don’t even know if he is still alive but its doesn’t matter so much anymore. And the reason it doesn’t matter is because of something called the long tail. I don’t know if you’ve read this book, you should go out and read it right now, you can read it in 45 minutes. And what Chris Anderson [author of The Long Tail] pointed out is this, if I look at Netflix, what I see is that Netflix rentals, half of them are products Blockbuster doesn’t even carry. If I look at Amazon sales, half of Amazon sales are products that are unavailable in any Barnes & Noble store. If I look at the iTunes music store, half of iTunes sales are titles that you could not buy if you went into any record store. What happens when you give people an infinite number of choices in any genre, polka, doesn’t matter, they spread out. And two things occur. One, they go down the tail and start finding what’s just right for them, and two, sales go up. And so what this means is that the very structure of “how do we force as much attention as we can to the top 40” is actually the opposite of what leads to more consumption.

And then the last one, you’ve seen it before, is this idea of suing the very people you’re trying to talk to is unfortunate.

(Hat tip: Boing Boing)

The entertainment industry and P2P networks

Here’s a Boing Boing post that includes a link to a longer article on Portfolio.com. The gist is an interview with Harvey Weinstein covering Hollywood’s take on P2P networks and piracy.

Certainly any solution to online sharing of digital content isn’t clear because currently that sharing is taking money out of the pockets of all involved, including your favorite music artists, filmakers and actors.

The problem is the recording industry (and now the movie industry) through the RIAA and MPAA are so hamfisted and stupid about tactics they’ve already lost the war and don’t even know it. The business model completely changed out from under their noses, they missed the bus and now are left shaking fists and filing lawsuits.

All this is accomplishing is creating a generation who not only know what the RIAA and MPAA are, but very actively hate both organizations.

Going back a number of years, consumers wanted high quality easy-to-access digital files with no restrictions on usage, time shift, media shift, etc. The “industry” didn’t offer consumers what they wanted because the industry saw easily copied files (with no quality loss) as a genie to keep in the bottle.

Consumers let the genie out of the bottle themselves, and now the creaking dinosaurs at the RIAA and MPAA have no idea where to turn. My guess is artists (particularly musicians) will continue to explore distribution techniques that cut the big guys out of the loop altogether.

This is already very prevalent, and I’m sure it scares the pants off the very groups that at one time held all the keys to entertainment market.

Weinstein in this interview shows just how out of touch he, and the rest of the entertainment industries (largely music and movies) really are. When asked by the interviewer if he sees any use for P2P systems, Weinstein answered, “No.”

Uninformed — really just clueless — moron.