Supreme Court Case on Scholars' Rights and Public domain

Chronicle of Higher Education

May 29, 2011
Supreme Court Takes Up Scholars' Rights
By Marc Parry

Denver

When Lawrence Golan picks up his baton here at the University of Denver, the musicians in his student orchestra see a genial conductor who corrects their mistakes without raising his voice in frustration.

Yet Mr. Golan is frustrated, not with the musicians, but with a copyright law that does them harm. For 10 years, the music professor has been quietly waging a legal campaign to overturn the statute, which makes it impossibly expensive for smaller orchestras to play certain pieces of music.

Now the case is heading to the U.S. Supreme Court. The high-stakes copyright showdown affects far more than sheet music. The outcome will touch a broad swath of academe for years to come, dictating what materials scholars can use in books and courses without jumping through legal hoops. The law Mr. Golan is trying to overturn has also hobbled libraries' efforts to digitize and share books, films, and music.

The conductor's fight centers on the concept of the public domain, which scholars depend on for teaching and research. When a work enters the public domain, anyone can quote from it, copy it, share it, or republish it without seeking permission or paying royalties.

The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. For conductors like Mr. Golan, that step limited access to canonical 20th-century Russian pieces that had been freely played for years.

"It was a shocking change," Mr. Golan says over dinner at a tacos-and-margaritas dive near the University of Denver's mountain-framed campus. "You used to be able to buy Prokofiev, Shostakovich, Stravinsky. All of a sudden, on one day, you couldn't anymore."

Other works once available but now restricted include books by H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso. The U.S. Copyright Office estimated that the works qualifying for copyright restoration "probably number in the millions."

Congress approved the recopyrighting, limited to foreign works, to align U.S. policy with an international copyright treaty. But the Golan plaintiffs—a group that includes educators, performers, and film archivists—argue that bigger principles are at stake. Does Congress have the constitutional right to remove works from the public domain? And if it does, what's stopping it from plucking out even more freely available works?

"If you can't rely on the status of something in the public domain today—that is, if you never know whether Congress is going to act again and yank it out—you're going to be a lot more cautious about doing anything with these materials," says Mr. Golan's lawyer, Anthony Falzone, executive director of the Fair Use Project and a lecturer in law at Stanford Law School. "You really destroy the value and the usefulness of the public domain in a profound way if the rug can be pulled out from under you at any time."

Read the entire post HERE.

Wire: Collateral Damage (effects of filesharing)

WIRE

Collateral Damage

* Issue #328 (Jun 11) | Essays

Responding to Kenneth Goldsmith’s epiphany on filesharing last month, Henry Cow founder and ReR label boss Chris Cutler counts the cost of free music to those who make and distribute it
“Epiphany No 4: As a result, just like you, I stopped buying music”
Kenneth Goldsmith, The Wire 327

And where’s the harm? Surely uploading is just an extension of sharing with friends, an effective and commercially subversive way to promulgate the music you like? But friends are strangers now; a friend is anyone with a broadband connection. Search engines and P2P sites have turned the entire wired world into friends. And that changes things. You want the latest hit without paying; a bootleg of that Singapore show; some album that went missing in 1960 and was never re-pressed? No problem, a couple of clicks will get it because someone somewhere will have put it on a website and someone else will track it down for you. Of course that’s great. What kind of argument can you have with free?

Well, there’s always the second law of thermodynamics. Free always comes at a price. I don’t mean inconvenience to major record companies – though they’ve been doing all the shouting so far – but the likely and predictable repercussions for the music itself. What does free really mean outside of the purely personal effect of ‘I can get it without paying’ – a claim any mugger could make without scoring many argument points? What are the social, cultural and moral costs, the consequences? Sometimes it’s not only our attention span that has evaporated down to bug durations, but our future-directed thinking altogether. Certainly, as access has expanded, empathetic horizons have narrowed. We all apparently want better health, better education, better pension and social security provision, better transport networks, more police and safer streets – and lower taxes. We want to be paid for the work we do but, if possible, not pay for the work other people do; eat the seed corn now and let the future take care of itself. It’s a model inherited from politicians and careless corporations. So I’m afraid, in my book, the ‘all music should be free’ argument is just an infinitesimal fleck in the onward progress of this idiot wave.

Making a recording is not cost-free or work-free; it’s expensive. And those costs can only be recovered through sales. No sales, or sales so low that costs are not recouped, mean artists are forced either to cut the costs next time (with inevitable negative consequences for quality) or not to record so much – or at all. Along with a lot of dross, good music is lost this way, especially at the margins, where the most innovative work is already barely paying its way. In my own field, I know how many musical projects never leave the notebook because of problems with the pocket book.

....
In a healthy and plural culture, independent funding for independent artists remains the main guarantee of innovative work. And that means the ability, somehow, for musicians to earn a living from what they do. Which is why festivals, performance spaces and independent record companies are so essential: they hold the line. Without concerts or records the equation runs: No income = day job = less art + more compromise.
....
Think of it as an ecological issue, a question of diversity for the sake of diversity. Forget the good guys/bad guys story, it’s just a question of whether we want a static, monocultural, factory farm environment or a diverse, plural, interconnected and evolving one. If the latter, we have to start thinking beyond immediate personal convenience.

Where is honour? We pay the plumber, the electrician, the VAT inspector; we pay the service provider and the telephone company, so why so careless of the musician and the struggling label? If you plant a garden and bring its fruits to term – and your friends dig it up in the night to feed themselves, perhaps praising you for your industry – and then sit back in the expectation of another year of gardening to sustain them through the following year, would you continue to dig and delve? Do vegetables really want to be free?

Perhaps Epiphany No 7 should be: Actions have consequences...

Read the entire post HERE.

The Music-Copyright Enforcers (NYT Mag)

NYT Magazine

August 6, 2010
The Music-Copyright Enforcers
By JOHN BOWE

Beginning and excerpts:

Few things can make Devon Baker cry.

There was the time her pet hamster, Herschel, died. There was the time she was run over by a car. Neither episode provoked tears. Not even close. And yet, on a recent Thursday, as Baker drove down Highway 60, about 55 miles northwest of Phoenix, she had to wonder, Is today one of those days when I’m gonna cry?

Baker, who has preternaturally white teeth, green eyes, soft brown hair and a friendly way that she’s the first to describe as “country,” was on her once-a-month, weeklong road trip. She’d flown to Phoenix to meet with bar and restaurant owners to discuss a rather straightforward business proposal. Off she went on her rounds each day, navigating with a special Microsoft Streets and Trips plan she prepared in advance, with 60 to 80 venues marked with dots, triangles or blue squares, according to size, dollar value and priority, wearing her company badge with photo ID, hoping for a little friendly discussion. Except it didn’t always work out so friendly.

Once, a venue owner exploded, kicked her off his property and told her, as she recalled, “to get the bleep outta here.” Another hissed at her that she was “nothing more than a vulture that flew over and came down and ate up all of the little people.” It wasn’t fun. It was just the sort of thing, in fact, that could bring Devon Baker to tears.

Baker, 30, is a licensing executive with Broadcast Music Incorporated, otherwise known as BMI. The firm is a P.R.O., or performing rights organization; P.R.O.’s license the music of the songwriters and music publishers they represent, collecting royalties whenever that music is played in a public setting. Which means that if you buy a CD by, say, Ryan Adams, or download one of his songs from iTunes, and play it at your family reunion, even if 500 people come, you owe nothing. But if you play it at a restaurant you own, then you must pay for the right to harness Adams’s creativity to earn money for yourself. Which leaves you with three choices: you can track down Ryan Adams, make a deal with him and pay him directly; you can pay a licensing fee to the P.R.O. that represents him — in this case, BMI; or you can ignore the issue altogether and hope not to get caught.

P.R.O.’s like BMI spend much of their energy negotiating licenses with the biggest users of music — radio stations, TV and cable networks, film studios, streaming Internet music sites and so on. But a significant portion of BMI’s business is to “educate” and charge — by phone and in person — the hundreds of thousands of businesses across America that don’t know or don’t care to know that they have to pay for the music they use. Besides the more obvious locales like bars and nightclubs, the list of such venues includes: funeral parlors, grocery stores, sports arenas, fitness centers, retirement homes — tens of thousands of businesses, playing a collective many billions of songs per year.

Most Americans have no problem with BMI charging for its music — except when they do. As Richard Conlon, a vice president at BMI in charge of new media, put it: “A few years back, we had Penn, Schoen and Berland, Hillary’s pollster guys, do a study. The idea was, go and find out what Americans really think about copyright. Do songwriters deserve to be paid? Absolutely! The numbers were enormously favorable — like, 85 percent. The poll asked, ‘If there was a party that wasn’t compensating songwriters, do you think that would be wrong?’ And the answer was, ‘Yes!’ So then, everything’s fine, right? Wrong. Because when it came time to ask people to part with their shekels, it was like: ‘Eww. You want me to pay?’ ”

........

Performing rights organizations in the United States came into being in 1914, when a group of musicians, including Victor Herbert, Jerome Kern, Irving Berlin and John Philip Sousa, founded the American Society of Composers, Authors and Publishers, otherwise known as ASCAP, the nation’s first P.R.O., in 1914. It was formed in response to a 1909 amendment to United States copyright law that explicitly provided for performance rights as opposed to mechanical rights (paid to a performer who plays a song, regardless of who wrote it) or sync rights (music synchronized to pictures). The law — and ASCAP — were given new force when Herbert, then a celebrity composer for Broadway, sued a New York restaurant called Shanley’s after hearing one of his compositions performed there. The case took a couple of years to wind through the courts, but in the end, Supreme Court Justice Oliver Wendell Holmes decided for Herbert. “If music did not pay, it would be given up,” Holmes wrote. “Whether it pays or not, the purpose of employing it is profit and that is enough.”

In 1939, radio broadcasters, irked at paying royalties set by ASCAP, which was then a monopoly, founded their own P.R.O., BMI. This they did by rounding up the many songwriters excluded from ASCAP’s umbrella: “race musicians,” toiling away in the déclassé genres of jazz, country, blues and, later, rock ’n’ roll. Today, BMI represents some 400,000 songwriters (ASCAP has 390,000, many of whom are from those formerly déclassé genres), including Willie Nelson, Dave Brubeck, Keith Urban, Lady Gaga, the Beach Boys, Taylor Swift, the Red Hot Chili Peppers, Café Tacuba, Kanye West, Shakira, Linkin Park, Mariah Carey, Sheryl Crow and Kid Rock. The songs and compositions written by BMI signatories number some seven million tunes — about half the music in America — and bring in close to a billion dollars per year, which is distributed to its artists in quarterly royalty checks. For antitrust reasons BMI operates (as does ASCAP) by consent decree from the Department of Justice. It is privately owned but chartered to operate as a not-for-profit, to guarantee the maximum possible return to its songwriters and publishers (in 2010, it retained 11.6 percent of royalties collected for administrative costs).

In the past, BMI had 14 regional offices around the country, with field agents reading local newspapers and scouring the land on foot and by car, ever on the lookout for new bars and restaurants or old ones that aren’t paying for their music. Now those offices are closed, and employees like Devon Baker do much of their work by phone from headquarters in Nashville. But with the Internet, it has never been easier to keep tabs on the nation’s businesses­. Venues advertise online which nights they offer live music or karaoke; state governments post liquor-license and corporate registries that give the names and addresses of business owners.

Once contacted by BMI, owners are given a worksheet. Does their venue use a radio, CD players, karaoke machine? Do they feature live music? If so, how often? How many people can the venue legally hold? For smaller businesses with low capacity that don’t make much use of music, a license may be as little as $300 a year. For really big operators, the cost might be as much as $9,000 per location per year, the maximum BMI is permitted to charge a single customer. (The fees are distributed to artists based on what BMI calls “an appropriate surrogate” — local radio or TV — that reflects a sampling of bars and restaurants in the area.) All in all, the division Devon Baker works for, General Licensing, accounts for 11 percent of BMI’s revenue.

.............

Being a BMI licensing exec is one of the hardest jobs a person can have, Mike O’Neill, senior vice president of repertoire and licensing, told me. “It’s different from other industries and sales situations,” O’Neill said. “Clients aren’t deciding whether to pay you so you can send them your product. They’ve already got it.”

We have a hard time paying for music, says O’Neill, because most of us grew up listening to it on the radio. It was free then. Shouldn’t it be free now? Of course, music on the radio was, in fact, not free. Radio stations paid licensing fees to BMI and ASCAP and paid for those fees by airing commercials, which took up some 20 percent of airtime. The Internet allows users to download tunes, often without paying for them, avoid annoying commercials and play a song whenever they wish. The ease with which music can be had has contributed enormously to the notion that it’s there for the taking. In 2008, 40 billion songs were downloaded illegally. It is estimated that 95 percent of music tracks are downloaded without payment to the artist or the music company that produced them. Peer-to-peer (P2P) file swapping of movies and music currently accounts for up to 80 percent of Internet traffic. Music sales among American record labels in 2010 are about 42 percent of what they were a decade ago. As an industry report from January of this year states, “A generation of young music fans is growing up with the expectation that music should be instantly available, with near-limitless choice and access and, of course, free.”

Many musicians have coped with downloading by focusing on touring. They have learned to consider their recorded output, formerly their bread and butter, as a form of promotion for live shows. But the rise of musical genres, like northern Brazil’s “tecno brega” (“cheesy techno”), which remixes and reworks popular songs, offers another, more direct challenge to who should be paid when music is recorded or performed. The producers give away their mixes, so there’s no copyright infringement, then make their money by staging dance parties, to which admission is charged. In the States, producers like Danger Mouse and Girl Talk have created mash-ups of marquee copyrighted material, like Beatles songs, then released them to the general public free, daring authorities to charge them.

Most well-known songwriters are reluctant to advocate publicly for copyright law, out of fear of alienating fans. Dolly Parton is not one of them. “Ain’t nobody got so much money they don’t want all the money that’s coming to them,” she said when I spoke to her recently. Rank-and-file songwriters, whose livelihood can depend desperately on their BMI royalties, are the most likely to express sentiments similar to Parton’s. One day, I visited a Los Angeles DJ and electronica composer named Alex Amato. Amato, as it happens, lives in a converted barn near Vine and Santa Monica that, he said, belonged to the filmmaker Kenneth Anger. Under the name Genuine Childs, Amato composes music with his twin brother, Anthony, which they’ve sold to reality shows like MTV’s “Real World” and “Road Rules.” They’ve also composed DVD menu page music for several big studio releases like “Scarface” and “The Bourne Identity.” It’s a rarefied niche, but Amato seems happy: his music reaches millions of listeners.

Amato also waits on tables and manages a restaurant near his house. His quarterly BMI checks, he insists, are the key to survival. “It’s like my magical Willy Wonka ticket,” he says. Creating music, Amato points out, costs money. It takes money to rent a space, buy equipment, run the equipment. How does music get made if everything suddenly becomes free?

“There are more people listening to music now than ever before,” he told me. “But because of this new kind of accessibility, people feel like they don’t have to pay. Why is that? Why does constructor Joe get to build a house, and he gets paid the same as before, but suddenly, there’s this judgment about this one way of earning a living?”

It is worth noting that during the years the recording industry lost nearly 60 percent of its income, BMI and its competitor ASCAP had steady increases in profits. BMI has done so by going after how people use music commercially, regardless of medium. As the president and chief executive of BMI, Del Bryant, likes to say, “You have to be in the future a little bit.”

In BMI’s case, this has meant leapfrogging from AM radio to FM, from movies to cable to digital radio to streaming to (once-illegal) downloading companies like Napster. (BMI began working on a deal with Napster about streaming music even before it sorted out its legitimacy.) They also signed with Rhapsody, the online streaming site, when the company was in its infancy. The trick, says Bryant, is to understand the content world as an ecosystem. When a new player comes along, don’t kill it, make a deal with it. With each new medium, he says: “We made agreements that weren’t that heavily monetized, and not that heavily binding because we didn’t know if it’d be around for long or how it would evolve. They were place keepers, ways to get us working together. And they slowly solidified. It’s all a question of pricing. The system has to serve everyone’s purposes.”

Richard Conlon echoed what Del Bryant said. “We’re not about shutting things down.” he told me. “We’re about nurturing markets. We don’t want people NOT to use it. We know the market is fractionalizing. You wanna take our music and stream it and have electronic whatevers that play when you stick a chip into something or somebody? Go ahead! Do it! Just pay us!”

..........

BMI is rosy about the future. According to Conlon, who spends a lot of time watching how 8-to-15-year-olds use technology, downloading is out, streaming is in. And guess what? Streaming pays — just like radio. Legally the climate is good too. In May, a federal court found LimeWire, one of the few remaining big free peer-to-peer file-sharing services, guilty of inducing copyright infringement. The company could be fined as much as a billion dollars.

While the rest of the content world worries that technology will be the end of content, P.R.O.’s are banking that technology will save it. BMI has developed a system called Blue Arrow that deploys the same technology as iPhone’s Shazam to identify music. (ASCAP uses a similar system called Mediaguide.) These systems can listen to Internet sites, as well as radio and TV stations around the world and identify, in two seconds, virtually any piece of music being played — not just American, but Turkish, Arabic, Chinese, Korean, Latin, Japanese and so on. The Blue Arrow database has a capacity of 500 terabytes (one thousand gigabytes each) of music, and can recognize eight million songs. About 3,000 new songs are added each day.

David DeBusk, who was vice president of business development when I met him this spring but has since left BMI, offered to show me how Blue Arrow works. An employee punched a few keys to find out which radio stations in Germany were playing “schlager music,” a bizarrely kitschy form of country pop. One tap of the keyboard, and we were listening live: Oom pah pah, oom pah pah. We went on to display all stations, worldwide, playing Swedish death metal. Did I want to see which ones were playing compositions by the composer Milton Babbitt? How about radio stations in Laos?

In the old days, P.R.O.’s relied mainly on playlists from radio stations and queue sheets from TV networks to figure out which songs were broadcast each month. Queue sheets were quite precise, listing every song a station broadcast, but playlists were, at best, a sample, an attempt to track the bulk of what got played. With Blue Arrow, however, it is possible to count every song played by a representative sampling of 400 radio stations across the country. Under the old system, hit-makers tended to dominate the machinery of royalty collection and distribution. Now, the “long tail” can be more effectively monetized: writers with minor hits, older hits, songs played here and there.

When DeBusk and his team began to hear the world through Blue Arrow’s ears, one thing they noticed was the number of “nonsong performances.” Everyone knows that rap music relies on sampled music, some of which should be paid for and isn’t. What surprised DeBusk was how common it was for copyrighted bits of music to be used free in jingles, as station-identification ditties and background music. DeBusk pulled up a screen detailing a list of nonsongs with generic names like “Graceful Power” and “Happy Days.” Such compositions, he said, are known as “production music,” written for ads and station identifications or for TV documentaries, and then sold to music libraries. If producers are looking for something that, say, sounds like boogie woogie or bebop, they go to a music library, listen to a few samples and purchase one.

One click with Blue Arrow and we knew that “Happy Days” was broadcast at five different times that morning on networks in the Southeast. Another click determined that it was used in a commercial for Country Crock margarine. Yet another click located its source: a music library in Atlanta. A few more key punches, and you knew if the library got their fee.

It was an awesome (or chilling) glimpse into the future: a world where if it can be tracked — on TV, on YouTube, in China — it will be charged for. Lawrence Lessig, a Harvard law professor known for his stance against what he views as an overexpansion of copyright law, is not against BMI’s being paid for its fair share but worries about the slippery slope created by new technologies. “If technology creates efficient ways to charge commercial users of copyright, then that’s good,” he told me recently, “but what I fear is that we evolve into a permission culture, where every single use of music creates an obligation to pay. I wish the line could be as clear as commercial exploitation — you’re running a dance club, using it in a movie. The author ought to have the right to be paid for that. But I don’t think that that right should translate into the right to control whether my kid uses the music for a collage he makes for a class about his trip to Costa Rica!” Friends I talked to had a similar reaction. To a one, they said: “Jesus. Sounds like Big Brother.” When I mentioned this to DeBusk, he smiled ominously. “Yes. Well. We’re here to help.”

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It's a long story; read it HERE.

DJ Spooky on copyright law: Open Source, Open Culture

Big Think
....

Question: Should digital content be free?

DJ Spooky: I’m a big pro-open source, pro-creative commons kind of artist. I think that it’s important to realize that copyright law as it is written relates mainly to the 18th century’s relationship to physical goods. And as things move more and more to a digital media, hyper-connected world we need to transform the models of how we think of ownership. Copyright law is something I respect, but the way the law is written versus the way we live in this rip, mix, burn kind of scenario, you know... It’s all about I think thinking of digital music as the kind of new folk culture where everyone should share, and by sharing they create a more rich and robust, you know, narrative.
......

Check out the interview on video HERE.

NYT: Mardi Gras Indians Seek Copyright Protection for their Suits

NYT

March 23, 2010
Want to Use My Suit? Then Throw Me Something
By CAMPBELL ROBERTSON

NEW ORLEANS — Just after dusk on Friday night, Tyrone Yancy was strutting through one of the more uncertain parts of town in a $6,000 custom-made suit.

He was concerned about being robbed, but not by the neighborhood teenagers who trotted out in the street to join him. The real potential for theft, as Mr. Yancy sees it, came from the strangers darting around him and his well-appointed colleagues in a hectic orbit: photographers.

Mr. Yancy, 44, is a nursing assistant by profession. His calling, however, is as one of the Mardi Gras Indians — a member of the Yellow Pocahontas tribe, to be exact — the largely working-class black New Orleanians who create and wear ornate, enormous feathered costumes and come out three times a year to show them off.

He is also one of a number of Indians who have become fed up with seeing their photographs on calendars, posters and expensive prints, without getting anything in return.

Knowing that there are few legal protections for a person who is photographed in public — particularly one who stops and poses every few feet — some Mardi Gras Indians have begun filing for copyright protection for their suits, which account for thousands of dollars in glass beads, rhinestones, feathers and velvet, and hundreds of hours of late-night sewing.

Anyone could still take their pictures, but the Indians, many of whom live at the economic margins, would have some recourse if they saw the pictures being sold, or used in advertising. (News photographs, like the ones illustrating this article, are not at issue.)

[NOTE: The story did not have images; the above images are from other sources.]

“It’s not the old way of doing things, but the old way of doing things was conducive to exploitation,” said Ashlye M. Keaton, a lawyer who represents Indians in her private practice and also works with them through two pro bono legal programs, Sweet Home New Orleans legal services, and the Entertainment Law Legal Assistance Project.

The legal grounding of the strategy is debatable, the ability to enforce it even more so. But what may be most tricky of all is pushing the Indians themselves to start thinking about the legal and financial dimensions of something they have always done out of tradition.

Mardi Gras Indians have been around for more than a century — more than two, some say — and are generally thought to have originated as a way to pay homage to the American Indians who harbored runaway slaves and started families with them.

The Indians come out and parade in full dress on Mardi Gras; on St. Joseph’s Night, March 19; and on a Sunday close to St. Joseph’s — a tradition that arose out of the affinity between blacks and Sicilians in the city’s working-class precincts.

The 30 or so Indian tribes are representatives of their neighborhoods, and starting from home turf they venture out in their shimmering suits to meet other tribes on procession in the streets. Time was, these run-ins would often end with somebody in the hospital, or worse.

But over the past few decades, encouraged by the legendary Chief of Chiefs, Tootie Montana, the showdowns became primarily about the suits, and whose suit could out-prettify all the others.

Indian suits, which in the old days were occasionally burned at the end of a season, have become stunningly elaborate and stunningly expensive, costing upwards of $10,000. For many Indians, it is a matter of principle that they make a new suit from scratch each year.

The copyright idea has been floating around for a while — several of Mr. Montana’s suits were registered years ago — but Ms. Keaton began pursuing it more vigorously in 2006, when she was approached by John Ellison, a 52-year-old detailer in an auto body shop and a member of the Wild Tchoupitoulas.

Any photograph that focused on a suit protected by a copyright could arguably be considered a derivative work. The sale of such a picture (or its use in tourism ads, for example) would be on the merits of the suit rather than the photograph itself, and if the person selling it did not have permission, he could be sued.

But the idea is not so easy to put into practice.
.....

Read the full story HERE.

Cute baby video wins battle against music label (Copyright)

Yahoo/Reuters

Cute baby video wins battle against music label
By Eriq Gardner Eriq Gardner Mon Mar 1, 8:48 am ET

LOS ANGELES (Hollywood Reporter) – How much should a copyright owner pay for improperly telling a website to remove content?

Stephanie Lenz got into trouble with Universal Music Group in 2007 after she posted a YouTube video of her toddler dancing to the Prince song "Let's Go Crazy." The label fired off a letter demanding removal of the clip and YouTube complied.

Lenz then teamed with online free-speech advocates at the Electronic Frontier Foundation to get a judge to declare that her video was a "fair use" of the song. She then sought damages against Universal, the world's biggest record company, for sending a meritless takedown request.

Universal fought back by raising affirmative defenses that Lenz had bad faith and unclean hands in pursuing damages. Now a California district court judge has rejected those arguments, granting partial summary judgment to Lenz and paving the way for Lenz to collect attorneys fees.

The case is important because it raises the question of whether a media company can be held liable for pursuing a takedown without a full consideration of fair use. The decision by the court last Thursday is very technical and examines damage claims under a statutory code that deals with liability when misrepresentations are made about infringing works online.

A preliminary read on the decision indicates that Lenz can recover legal fees associated with fighting the takedown, but not necessarily fees connected with the cost of pursuing Universal for damages in follow-up litigation. To really sock it to Universal, Lenz would have to make a claim under a code that awards fees at the court's discretion. To do that, she will likely need to show that Universal knowingly misrepresented its initial claim.

What Nonsense: Jury awards $675K in Boston music downloading case

Yahoo/AP
Jury awards $675K in Boston music downloading case

by DENISE LAVOIE, Associated Press Writer - Sat Aug 1, 2009 12:57AM EDT

BOSTON - A federal jury on Friday ordered a Boston University graduate student who admitted illegally downloading and sharing music online to pay $675,000 to four record labels.

Joel Tenenbaum, of Providence, R.I., admitted in court that he downloaded and distributed 30 songs. The only issue for the jury to decide was how much in damages to award the record labels. Under federal law, the recording companies were entitled to $750 to $30,000 per infringement. But the law allows as much as $150,000 per track if the jury finds the infringements were willful. The maximum jurors could have awarded in Tenenbaum's case was $4.5 million. Jurors ordered Tenenbaum to pay $22,500 for each incident of copyright infringement, effectively finding that his actions were willful. The attorney for the 25-year-old student had asked the jury earlier Friday to "send a message" to the music industry by awarding only minimal damages. Tenenbaum said he was thankful that the case wasn't in the millions and contrasted the significance of his fine with the maximum. "That to me sends a message of 'We considered your side with some legitimacy,'" he said. "$4.5 million would have been, 'We don't buy it at all.'" He added he will file for bankruptcy if the verdict stands.

read the rest here:

What nonsense. If some guy stole 18 compact disc from Costco would he have been fined $675K? Of course not. Heck, if someone stole the equivalent of thirty songs--about $30--and it was a Federal crime, would the fine have been this high? Of course not. Even the minimum fine of $750 per song would have been a pretty stiff penalty: $22,500. This fine is crap.

Singers tell Congress: Money (That's What I Want)

AP

Singers tell Congress: Money (That's What I Want)

By RYAN NAKASHIMA, AP Business Writer Ryan Nakashima, Ap Business Writer – Sun May 3, 1:18 pm ET

Jack Ely, the singer whose 1963 version of "Louie Louie" still makes the rounds on oldies radio, lives with his wife in a mobile home on a horse ranch in Oregon. Ely says they share $30,000 a year from her teacher's pension and his Social Security checks. They are paying down a mortgage.

So sometimes it bothers Ely, 65, when he hears his voice singing "Louie Louie" on the radio or in sports arenas, knowing he's not getting paid.

"It gets played twice a day by every oldies radio station everywhere in the world. And I get nothing," said Ely, who recorded the song with The Kingsmen before getting drafted by the Army and leaving the band. "I got one check for $5,000. That's all I ever saw from the sale of `Louie Louie.'"

Since the advent of radio in the 1920s, songwriters have made a little money every time their tunes are played on stations in most industrialized countries. The six children of "Louie Louie" songwriter Richard Berry today share more than $100,000 in royalties every year.

But performers like Ely don't get a dime.

A bill moving through Congress aims to change that. It would let performers and the recording labels get a share of the ad revenue that radio stations collect from playing their songs. This pool of royalties could be hundreds of millions a year — which would be crucial for the record industry, as compact disc sales plummet and digital song sales aren't making up the difference.

It could also unlock an estimated $70 million to $100 million per year that is collected by radio stations abroad for U.S. artists, but never paid out because U.S. stations don't pay foreign artists in return. France, for example, takes the U.S. artists' portion and puts it into French cultural funds.

There have been more than half a dozen attempts since the 1970s to enact a performers' royalty on Capitol Hill. All have faltered to a powerful radio station lobby headed by the National Association of Broadcasters. The association says performers and record labels are already compensated — they sell songs and concert tickets because of the radio airplay they get. The NAB says the long history of record labels paying disc jockeys for extra rotations helps prove the point.

This time, however, the music industry thinks it can win. In the last two decades, recording companies have secured royalties from other formats: Internet radio, satellite radio and music channels on cable TV services. Mitch Bainwol, the chairman of the Recording Industry Association of America, says he's prepared for a "multiyear" fight.

The bill has the support of the Judiciary Committee Chairman, Rep. John Conyers, D-Mich., and is set for final revisions this month before possibly being sent to the House floor for debate.

Radio stations say the renewed push couldn't have come at a worse time.

The recession has pushed ad revenue at radio stations down by double-digit percentages from a year ago, and thousands of jobs have been lost.

Randy Gravley, the co-owner of five small radio stations in northern Georgia, says he can't afford even the special rate of $5,000 per station per year allowed under the bill for stations with less than $1.25 million in annual revenue.

His 20 employees cover everything from high school basketball and football to the student of the week in the towns of Hiawassee, Jasper and Ellijay. Salespeople set up equipment in the field and some reporters double as live commentators at games.

Gravley says a $25,000 hit would mean one of three reporters would have to be let go or his stations would start to lose money. While more than half of his stations' air time is devoted to music — oldies, classic hits and southern gospel — he says can't afford to pay the performers who recorded the songs, at least not now.

"We're not trying to take away from anybody, but we're trying to stay in business," Gravley said.

He argues that unlike songwriters and their sales and collection agents, the publishers — whom his stations pay about $32,000 a year — performers can sell albums and go on tours to raise money. Without radio airplay, he said, performers would never have that ability at all.

It's unclear how much radio airplay entices listeners to buy music. But if the "payola" scandals from the 1950s to this decade are any indication, major recording labels have long valued radio airplay, and sometimes paid cash for it. Some regulators have considered such payments bribes, and the federal government in the 1960s forced radio stations to disclose when they are paid for song play. Several years ago, then-New York Attorney General Eliot Spitzer forced three major labels into multimillion-dollar settlements for having independent promoters act as payola intermediaries.

Yet economists disagree on the promotional benefit of music on the radio.

The NAB commissioned a study by Rand Corp. economist James Dertouzos, who concluded last June that radio airplay helps boost music sales by $1.5 billion to $2.4 billion annually. NAB-made radio ad spots running now accuse the "fat cat" recording industry of "biting the hand that feeds him."

In its defense, the recording industry found its own expert, University of Texas economist Stan Liebowitz, who told the House Judiciary Committee in March that airplay may boost individual song sales, but doesn't increase music sales overall. "Is radio making the pie bigger or not? The evidence is that it's not," he said.

It's also unclear how much performers might make if the bill passes. Many lawmakers have pressed the radio and recording industries to negotiate. But NAB president David Rehr has said he would rather "cut my throat than negotiate on this," according to trade magazine Radio & Records. It's a comment he has never denied making.

Without negotiations, if the bill passes, the final royalty rate would likely be set by the federal Copyright Royalty Board.

As a benchmark for what performers might demand, two of the three U.S. bodies that collect fees for songwriters and publishers took in a combined $473 million from radio stations in fiscal 2008. (The third group is private.) Experts peg the total sum at about 3 percent of music U.S. radio station revenues.

The bill prevents songwriting and publishing royalties from being reduced to make room for the new fees. On a given song, half the new fee would go to the copyright holder of the master recording, typically the record label; 45 percent would go to featured performers; and 5 percent would go to background performers and backup singers.

The recording labels have already made inroads. In the late 1990s, they won the right to collect royalties for performers when songs are played on satellite, Internet and cable radio. A body called SoundExchange collected $151 million for performers from those formats in 2008.

"All the other platforms in the U.S. make payments," said Bainwol, the head of the Recording Industry Association. Traditional radio, he said, "sticks out like a sore thumb."

___

Ely met songwriter Berry for the first time in 1983, at a 63-hour "Louie Louie" marathon at a college radio station in California where more than 800 versions of the song were played or performed.

Ely borrowed money to make the trip. Berry, having long before sold the song rights for $750 to buy a wedding ring, was on welfare, said Eric Predoehl, a student who helped organize the gathering and is now making a documentary about "Louie Louie." Ely later urged Berry to regain his rights to the music, and he did so, with the help of Chuck Rubin, the president of Artist Rights Enforcement Corp.

Later that decade, the publishing rights sold for millions of dollars, of which Berry got half, Rubin said. Berry died in 1997, but his heirs will continue to collect the royalties until the copyright expires 75 years after his death.

Although he died in the house where he grew up, in south central Los Angeles, Berry managed to cash in. He bought a sport utility vehicle, took trips, helped pay off his mother's mortgage and sent money to his children. He took his family out for lavish dinners.

Ely doesn't begrudge Berry's wealth, but rues what might have been for himself. He admits to squandering the money he made in the short period he toured after his version of "Louie Louie" became a hit. He said a performer's royalty would have made a big difference.

"I would have had a nice bank account when I got out of the Army," he said. "As it was I ended up being a musician playing in bars for 35 years."

Law professor fires back at song-swapping lawsuits

Anniston Star/AP
Nov 17, 7:22 AM EST

Law professor fires back at song-swapping lawsuits

By RODRIQUE NGOWI
Associated Press Writer

BOSTON (AP) -- The music industry's courtroom campaign against people who share songs online is coming under counterattack.

A Harvard Law School professor has launched a constitutional assault against a federal copyright law at the heart of the industry's aggressive strategy, which has wrung payments from thousands of song-swappers since 2003.

The professor, Charles Nesson, has come to the defense of a Boston University graduate student targeted in one of the music industry's lawsuits. By taking on the case, Nesson hopes to challenge the basis for the suit, and all others like it.

Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group - the Recording Industry Association of America, or RIAA - carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.

Nesson, the founder of Harvard's Berkman Center for Internet and Society, said in an interview that his goal is to "turn the courts away from allowing themselves to be used like a low-grade collection agency."

Nesson is best known for defending the man who leaked the Pentagon Papers and for consulting on the case against chemical companies that was depicted in the film "A Civil Action." His challenge against the music labels, made in U.S. District Court in Boston, is one of the most determined attempts to derail the industry's flurry of litigation.

The initiative has generated more than 30,000 complaints against people accused of sharing songs online. Only one case has gone to trial; nearly everyone else settled out of court to avoid damages and limit the attorney fees and legal costs that escalate over time.

Nesson intervened after a federal judge in Boston asked his office to represent Joel Tenenbaum, who was among dozens of people who appeared in court in RIAA cases without legal help.

The 24-year-old Tenenbaum is a graduate student accused by the RIAA of downloading at least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004. He offered to settle the case for $500, but music companies rejected that, demanding $12,000.

The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a willful violation. That means Tenenbaum could be forced to pay $1 million if it is determined that his alleged actions were willful.

The music industry group isn't conceding any ground to Nesson and Tenenbaum. The RIAA has said in court documents that its efforts to enforce the copyright law is protected under the First Amendment right to petition the courts for redress of grievances. Tenenbaum also failed, the music group noted, to notify the U.S. Attorney General that that he wanted to contest the law's constitutional status.

Cara Duckworth, a spokeswoman for the RIAA, said her group's pursuit of people suspected of music piracy is a fair response to the industry's multibillion-dollar losses since peer-to-peer networks began making it easy for people to share massive numbers of songs online.

"What should be clear is that illegally downloading and distributing music comes with many risks and is not an anonymous activity," Duckworth said.

Still, wider questions persist on whether the underlying copyright law is constitutional, said Ray Beckerman, a Forest Hills, N.Y.-based attorney who has represented other downloading defendants and runs a blog tracking the most prominent cases.

One federal judge has held that the constitutional question is "a serious argument," Beckerman said. "There are two law review articles that have said that it is unconstitutional, and there are three cases that said that it might be unconstitutional."

In September, a federal judge granted a new trial to a Minnesota woman who had been ordered to pay $220,000 for pirating 24 songs. In that ruling, U.S. District Judge Michael J. Davis called on Congress to change copyright laws to prevent excessive awards in similar cases. He wrote that he didn't discount the industry's claim that illegal downloading has hurt the recording business, but called the award "wholly disproportionate" to the industry's losses.

In the Boston case, Nesson is due to meet attorneys for the music industry for a pretrial conference on Tuesday, ahead of a trial set for Dec. 1.

Entertainment attorney Jay Cooper, who specializes in music and copyright issues at Los Angeles-based Greenberg Traurig, is convinced that Nesson will not persuade the federal court to strike down the copyright law. He said the statutory damages it awards enable recording companies to get compensation in cases where it is difficult to prove actual damages.

The record companies have echoed that line of defense. In court filings in Tenenbaum's case, they contend that the damages allowed by the law are "intended not only to compensate the copyright owner, but also to punish the infringer (and) deter other potential infringers."

But are these lawsuits the only way the record industry could deter piracy? Nesson believes the industry could develop new ways to prevent copyright material from being shared illegally. One idea would be to bundle music with ads and post it for free online, he says.

"There are alternative ways," he said, "of packaging entertainment to return revenue to artists."

---

On the Net:

Harvard's Berkman Center for Internet and Society: http://cyber.law.harvard.edu

Ray Beckerman's blog: http://recordingindustryvspeople.blogspot.com

The Recording Industry Association of America on music piracy: http://www.riaa.com/physicalpiracy.php

New Zealand's Maori rediscover themselves in tattoos

LA TIMES
COLUMN ONE
New Zealand's Maori rediscover themselves in tattoos
Ta moko, an art form that once seemed destined for oblivion, is again a solemn declaration of the native people's identity and dignity.
By Paul Watson
Los Angeles Times Staff Writer

April 15, 2008

NEW PLYMOUTH, NEW ZEALAND — With a little ink, some stinging pain and a helping hand from the ancestors, Mark Kopua can heal a wounded soul.

He is a modern master of an ancient art called ta moko, one of the world's oldest forms of tattooing and a renewed source of pride for New Zealand's indigenous Maori people.

To those who know how to read the twists, turns and spirals of the ink lines, they tell a rich history of a person's accomplishments and ancestry. The centuries-old designs turn the faces and bodies of women and men into testaments to their identity, and offer spiritual healing.

"I learned very quickly that moko was therapy for people," Kopua said. "If you ail inside, and you get taken to a grandparent for advice, the elders are involved in your healing. This is very similar to that."

The designs have both fascinated and frightened outsiders for generations. In the 19th century, curiosity seekers traded gunpowder with the Maori for the tattooed heads of their dead warriors. Dozens of the dried heads are in a macabre collection hidden away in New York's American Museum of Natural History.

The tattoos also brought scorn on the Maori from missionaries and other foreigners who saw them as primitive. Even today, some Maori adorned with moko complain that they suffer discrimination when looking for work, or just a drink at a bar.

But in recent years, as Maori stand up to safeguard their culture, an art that once seemed doomed by the onslaught of Western culture is again a solemn declaration of Maori identity and dignity. Their sacred, serpentine designs now adorn foreign celebrities such as British pop star Robbie Williams and boxer Mike Tyson, and Maori are vigorously defending their claim over motifs that many feel are being exploited by outsiders.

More than 565,000 people, or one in seven New Zealanders, are Maori, according to the most recent census, in 2006. After a steady exodus from the countryside in recent decades, 85% of Maori today live in towns and cities, said Ngahuia Te Awekotuku, who wrote a book on ta moko.

Now members of the urban mainstream here, including Maori police officers, teachers, office workers and businesspeople, are shrugging off any fear of being stared at or shunned by colleagues and are going for full-glory moko.

Some wear their moko where the passing world can't miss it, such as the simple curved lines on a woman's chin or the florid tapestries that cover a man's face and scalp. Others go for more intimate tattoos, like broad spirals that play out across buttocks and thighs.

Many find spiritual solace in the tattoo parlor, where Kopua helps them get in touch with their ancestors.

Serendipity helped convince Oriana McLeod that the time had come for her first tattoo. The 47-year-old Maori woman's path crossed Kopua's at a recent world music festival in this west coast town.

Feeling the urge to discover the moko that would announce her spiritual rebirth, she phoned several family members to ask their approval. Her father, a tribal elder, not only gave his blessing, but encouraged her with the news that Kopua, 46, was a distant relative.

"This is my time," she thought, and took the chair next to Kopua's worktable.

A bear of a man with a whisper of a voice and large tattoos emblazoned across his face and arms, Kopua picked up his pistol-shaped tattoo gun in a large hand sealed in a black latex glove.

Then, like a painter touching the tip of a fine brush to his palette, Kopua dipped the gun in a small pot of ink and began injecting McLeod's upper arm, drawing free-form from an encyclopedic memory of traditional designs.

For an hour and a half, McLeod turned her head away, or closed her eyes, wincing as Kopua worked on his creation, which depicted the sea and the tossed net of Te Huki, a venerated ancestor of her tribe who extended his power over a vast area by marrying the daughters of several local chiefs.

Like two sets of roiling waves, the pattern of curves and swirls and what seems a squid-like eye transformed McLeod's right shoulder into a page of her family history. Called whakapapa, this genealogy is the expansive network of bloodlines and kinship that makes someone Maori.

Moko can also honor an important event in a person's life, such as graduating from college, getting married or experiencing an epiphany, said Te Awekotuku, a professor of Maori culture at the University of Waikato in Hamilton.

It's similar to a soldier getting "Mom" tattooed on his arm, or a Latino kid in East Los Angeles declaring his gang affiliation with special symbols and colors on his hand, she said.

"I think what you see in the barrios of L.A. -- the imagery, the sacredness, the assertion of identity and pride -- is actually no different from us," she said. "Just as in the Maori world, they have recurrent symbols that have particular messages for the wearer, the viewer and the family member."

Like most other Maori, she wishes tourists and the trendy would respect what the tattoos are saying and not try to warp them into fashion statements.

"Even though it's expressed through art on the skin, it's very much about belonging," she said. "And if you don't belong, you shouldn't wear it."

Even so, Maori tattoos adorn bodies of numerous foreign celebrities. Pop star Williams stirred up a controversy in 2000 when a Maori artist tattooed the singer's arm in New Zealand. A Maori cultural expert complained that the design had been filched from his tribe.

That same year, 50 artists set up a national forum, called Te Uhi A Mataora, to set design and health standards for Maori tattoo artists and protect traditional motifs against abuse in New Zealand and abroad.

"They're very, very sacred designs that are being used in very, very insensitive ways," Kopua said. "For example, some designs that come off people's faces and heads have been put on cups and plates and all those sorts of things."

Maori are also offended by the misuse of moko on people's bodies. Tattoo artists mimicking Maori designs without understanding them draw the patterns upside down, put motifs reserved for women on men or distort the designs in other ways.

"Most of the moko are genealogical," Kopua said. "So when somebody just snatches a design that represents another person's ancestors and puts it anywhere they please, that takes it out of its true context. Our reaction to that is very, very strong."

In 2006, activists complained when a Hollywood costume shop put a "Maori Face" tattoo kit on its shelves. French designer Jean-Paul Gaultier caused a bigger stir last year when men and women modeling his clothes in European editions of Vogue were made up with moko on their faces.

Maori are asserting copyright over their designs at the World Intellectual Property Organization, a United Nations agency in Geneva that promotes the protection of copyrights and patents They have also created toi iho, a registered trademark for authentic Maori-made arts and crafts.

While they fight for their copyright, Maori are quietly struggling to reclaim the dignity of tribal warriors who fell long ago.

The ta moko artists group is working to track down and reclaim the preserved heads of warriors, which are also being stored in New Zealand's Te Papa Tongarewa museum in Wellington for proper burial, Kopua said.

Since 1907, the American Museum of Natural History has had 35 Maori heads in its anthropology collection, but they are in storage and out of public view, said Charles McLean, senior vice president of communications and marketing for the New York museum.

The museum has "periodic discussions" concerning requests for their return, McLean said. But "we are not currently in discussions with anyone from New Zealand about the heads," he added.

Kopua thinks much of the outside interest in ta moko today probably stems from the feeling among many foreigners that they've lost contact with their own past, a mistake he urges Maori to avoid by proudly wearing their history on their skin.

"We're telling our own kids in the next generation: 'These are our ancestors. They're worth being proud of.' We also tell them: 'These are our struggles, and they're the same struggles of our ancestors. And we're fighting for them now.' "

When Kopua finished McLeod's tattoo, she seemed slightly stunned, almost as if she were emerging from a trance. Her arm was sore, but she said her spirit was soaring.

"I've had a lot go on in my life," she said, reluctant to go into details with an outsider. "I've just found a calling with my Maori-tanga, my Maoriness. It's a reawakening."

With her new tattoo covered in loosely wrapped cellophane to protect against infection, she wrapped her arms around Kopua, squeezing him like a long-lost brother. She whispered something in his ear and smiled.

With his beefy hand and soothing voice, and some guidance from the ancestors, he had set her on the right path.

paul.watson@latimes.com

Who owns a band name?

LA Times

Who owns a band name?
The hair-metal heyday is long gone, but the fight for ownership of the groups' names (and the nostalgia-tour money to be made) goes on.
By Neil Shah, Special to The Times
March 2, 2008
STEVE RILEY is a survivor. At 51, he still plays the drums for L.A. Guns, a biker-themed hair-metal band famous mostly for once featuring Guns N' Roses singer Axl Rose. Riley and first mate Phil Lewis, who sang L.A. Guns' only Top 40 hit, "The Ballad of Jayne," toured Australia last fall before joining Mötley Crüe singer Vince Neil for a show in St. Paul, Minn.

But Riley and Lewis are finding life on the exurban nightclub scene harder these days. Promoters want them to play for less. That's because lately there have been not one but two L.A. Guns bands milking the nostalgia circuit -- locked in a mutually destructive price war and consequently dueling, like a growing number of their shred-ready brethren, over the band's name.

Guitarist Tracii Guns, who formed the band in 1982 and was the original "Guns" in Guns N' Roses, says his crew is the real deal since it includes one of the band's earliest singers, Paul Black. "Phil and Steve were not even the original members of the band," Tracii wrote in an online post after declining to be interviewed for this article. "Now they . . . say that I am not the 'real' version of L.A. Guns?"

The standoff persists because Guns and Riley each own 50% of the L.A. Guns name. Riley discovered in the mid-'90s that their manager had never secured the rights to "L.A. Guns." With the other founding members gone, Guns and Riley trademarked the name together.

But Riley says the guitarist forfeited the name when he left the band in 2002 to work with Mötley Crüe bassist Nikki Sixx. At the time, L.A. Guns was close to securing a tour with Alice Cooper, but still supporting lesser acts such as Warrant and Firehouse, which irked Guns. The band urged him to stay.

"We said, 'We got bills and families, we have to take jobs like this,' " recalls Riley, whose son is now 16. "He looked us right in the eye and said, 'I don't [care] about you or your families.'

"He shot us down completely."

It's the same old song sung in recent decades by members or affiliates of such early rock and R&B acts as the Drifters, the Platters, the Temptations, the Doors and the Byrds, a mournful tune that's been showing up with increasing frequency in the repertoires of the hair-metal bands of the 1980s.

Taime Downe faced a coup similar to that of L.A. Guns last year, but -- unlike his friend Tracii Guns -- he prevailed. Downe, who made a name for himself as the leader of late-'80s sleaze-rock group Faster Pussycat, sicced his lawyers on fellow founder Brent Muscat after the guitarist started touring as Faster Pussycat without him.

Without Downe's knowledge, Muscat had trademarked the name in 2002, after it had lapsed, Downe says. Threatened with a lawsuit, Muscat settled out of court last summer. (He could not be reached for comment.)

Downe says because of the dispute he had to put off 60 or 70 potential shows in the U.S., Europe and Japan, at $3,000 to $5,000 a pop.

Downe, 43, says he rejected an overture from Muscat to share the band's name. "It's my company. Someone from Starbucks is not going to go out and form another company called Starbucks."

When Downe won, Muscat, booked for last summer's four-day Rocklahoma hair-metal festival in Pryor, Okla., was booted from the bill. By the time Rocklahoma rolled around in July, his version of the band had folded.

It's a jungle out there

FASTER Pussycat and L.A. Guns aren't alone. Key members of White Lion have jousted for years, as have the guys in Welsh glam-band Tigertailz. England's Saxon, part of the new wave of British heavy metal in the early '80s, still has a doppelgänger. Even Ratt has been plural at one point.

So why all the fuss over band names?

Cold, hard cash, obviously. But these groups' bizarro melodramas also take something else for granted: the enduring power and profitability of the "brands" the music industry created for them back in the '80s and early '90s."I don't think [the hair bands] could do it otherwise," says Mark Strigl, co-host of "Talking Metal," a popular pod-cast and new fuse TV show. "They're still riding off that initial marketing push."

Indeed, many top-shelf acts are living on more than a prayer these days.

Poison and Cinderella grossed a healthy $6.3 million during their North American tour in 2006, selling almost 7,000 tickets per city on average, according to Pollstar editor-in-chief Gary Bongiovanni. "Of the top 200 touring acts [in 2006], they were 106," he says. "Right behind the Strokes."

Queensrÿche made more than $3 million that same year, finishing at No. 167 on the same list, while Styx raked in $5.6 million and came in at No. 113.

Rock 'n' roll feuds over names aren't new.

Early R&B heavyweights squabbled over names, usually after splintering into multiple versions of themselves. Flaps broke out over which members of the Byrds could use the name on tour. Mike Love is the only member of the Beach Boys legally permitted to use the group's name on the road. Roger Waters lost his battle with David Gilmour over which could call their latter-day groups Pink Floyd.

Like some of the early groups, hair-metal acts were often known by name more than by face, so it's hard to know what you're getting when you see a name on a club marquee.

But hair bands add a funnier (albeit, sometimes also sadder) twist to the story, since what's at stake is bubble-gum metal.

"There's never been another musical form like hair metal, that sold so much, and evaporated so fast," says Steven Blush in his 2006 book, "American Hair Metal."

For second-tier metal bands, there's enough cash out there (almost) to make a living, but not enough to warrant bringing in a bunch of expensive lawyers, who presumably could resolve the split ends.

"If you did a ton of coke back in the day and bought Lamborghinis, and [frittered] away every penny you made, and all of a sudden you're sitting there at 45, 50 years old, nowhere to turn, you certainly don't want to get a day job," says Eddie Trunk, a radio personality who hosted the Rocklahoma festival.

"You're going to put together some version of the only thing you ever knew," Trunk said. "That's all you know to survive."

It's a business

BUT rock's Dark Age also spawned stars who have been downright obsessed with making sure they don't spend their professional after-lives in legal limbo.

Consider Axl Rose. Most of the media coverage of Rose's comeback shows in 2006 was critical of his decision to call his band Guns N' Roses when it lacks prime-period members Slash, Izzy Stradlin, Duff McKagan and Steven Adler.

Greed? Perhaps. But a more mundane explanation is that GNR is not just a rock band, it's a company, and Rose is its CEO.

In the mid-'90s, Rose pressured Slash and Duff, the two remaining GNR originals at the time, to sign a contract stating that Axl "would retain rights to the band name and was allowed to start a new band that he could call Guns N' Roses" if the band broke up, according to Slash's new autobiography, "Slash."

"I was naive about the whole thing," Slash writes in his book. "I didn't protect myself legally because I didn't think I had to. In my mind, what was the name without the players?"

Pop music and big business may be more obvious about their marriage of convenience these days, but rock bands are, and always were, just small businesses.

When a band signs a record contract, it often creates a limited liability company (LLC), divvying up cash from royalties, merchandise and touring based on specific percentages for each member.

Ideally, band members sit down and decide what happens to the name if various members leave.

But sometimes, that doesn't happen.

"I'm the kind of person who signs anything without ever looking through it," says Mike Tramp, the 47-year-old singer of White Lion, which recorded three albums for Atlantic Records before breaking up in 1991.

Donald Passman, an attorney and author of "All You Need to Know About the Music Business," has seen this movie a few times.

Passman says one of his cases lasted more than nine years and cost $1 million in legal fees. The band died over it. "Some bands don't have any agreements at all," he says. "They just start playing together, and everything's cool until it's not."

The few disputes consummated in court have revolved around who was more essential to the band's sound.

"If you go see a band you grew up listening to, whether it's Deep Purple, Led Zeppelin, Sabbath or anybody, the one main thing you really, really have to hear is that original vocalist," says Steve Riley, whose version of L.A. Guns performed at the Whisky in January.

Hair metal was never about innovation or art, let alone social commentary or politics, so why would it be about original members?

Quiet Riot was missing half its early '80s lineup when it performed last summer. Warrant's current front-man is not Jani Lane, but Jaime St. James, the former lead singer for C-list band Black N' Blue. Even '70s bands as big as Foreigner have outsourced most of their labor.

In a way, hair bands were always cover bands, an entire generation of rock musicians animated by the boyish dream of being Led Zeppelin or the Stones. What's more, many of these bands have always been revolving-door outfits: More than 30 people have cycled in and out of L.A. Guns over the years.

Perhaps today's culture of hair band "reunions" is something akin to what's happening with newer "collective" bands such as Canada's Broken Social Scene.

Both embrace the rock band for what it really is: an ever-shifting group of opportunistic individuals crystallized in our imagination as a fixed, organic whole.

A brand, in other words.

Battle tactics

TRACII GUNS and Steve Riley, though, are still doing the same old song and dance.

Riley's team has been trying to coax promoters into dropping Tracii from concert bills. Guns, who played West Hollywood's House of Blues in January with Skid Row (minus singer Sebastian Bach, of course), says he could quash Riley's band but won't.

Most of these bands, in the end, will always be smaller than their brands.

"There's a huge, huge misconception out there that this stuff is back," Oklahoma radio man Eddie Trunk says.

"The reality is this though: There is no pot of gold out there for these guys. They can all make their money, and they can all have some level of success, but the glory days of playing these arenas and stadiums is over."

Commons Misunderstandings: ASCAP on Creative Commons

A good review/critique of ASCAP's recent advisory pertaining to Creative Commons Licensing at Lessig.

Original post here

Download Uproar: Record Industry Goes After Personal Use

Washington Post
Download Uproar: Record Industry Goes After Personal Use

By Marc Fisher
Washington Post Staff Writer
Sunday, December 30, 2007; M05

Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing.

Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle.

Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."

RIAA's hard-line position seems clear. Its Web site says: "If you make unauthorized copies of copyrighted music recordings, you're stealing. You're breaking the law and you could be held legally liable for thousands of dollars in damages."

They're not kidding. In October, after a trial in Minnesota -- the first time the industry has made its case before a federal jury -- Jammie Thomas was ordered to pay $220,000 to the big record companies. That's $9,250 for each of 24 songs she was accused of sharing online.

Whether customers may copy their CDs onto their computers -- an act at the very heart of the digital revolution -- has a murky legal foundation, the RIAA argues. The industry's own Web site says that making a personal copy of a CD that you bought legitimately may not be a legal right, but it "won't usually raise concerns," as long as you don't give away the music or lend it to anyone.

Of course, that's exactly what millions of people do every day. In a Los Angeles Times poll, 69 percent of teenagers surveyed said they thought it was legal to copy a CD they own and give it to a friend. The RIAA cites a study that found that more than half of current college students download music and movies illegally.

The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

But lawyers for consumers point to a series of court rulings over the last few decades that found no violation of copyright law in the use of VCRs and other devices to time-shift TV programs; that is, to make personal copies for the purpose of making portable a legally obtained recording.

As technologies evolve, old media companies tend not to be the source of the innovation that allows them to survive. Even so, new technologies don't usually kill off old media: That's the good news for the recording industry, as for the TV, movie, newspaper and magazine businesses. But for those old media to survive, they must adapt, finding new business models and new, compelling content to offer.

The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed. Four years of a failed strategy has only "created a whole market of people who specifically look to buy independent goods so as not to deal with the big record companies," Beckerman says. "Every problem they're trying to solve is worse now than when they started."

The industry "will continue to bring lawsuits" against those who "ignore years of warnings," RIAA spokesman Jonathan Lamy said in a statement. "It's not our first choice, but it's a necessary part of the equation. There are consequences for breaking the law." And, perhaps, for firing up your computer.

Court acquits allofmp3.com site owner

MOSCOW, Russia (Reuters) -- A Russian court found the former boss of music download Web site www.allofmp3.com not guilty of breaching copyright on Wednesday in a case considered a crucial test of Russia's commitment to fighting piracy.

The allofmp3.com Web site angered Western music companies by undercutting the price of downloads in deals they said breached copyright law.

Denis Kvasov, head of MediaServices which owned the site, was put on trial after entertainment companies EMI Group Plc, NBC Universal and Time Warner Inc. pressed for a prosecution.

"The prosecution did not succeed in presenting persuasive evidence of his involvement in infringing copyright law," said judge Yekaterina Sharapova.

A local official with the International Federation of the Phonographic Industry (IFPI), which is representing copyright holders in the case, said it would appeal the decision.

"We are disappointed with the verdict and will appeal," IFPI regional director Igor Pozhitkov told reporters.

The site has been a thorny issue in negotiations between Russia and the United States over Russia's accession to the World Trade Organisation, a key aim of President Vladimir Putin.

At the beginning of the year global credit card companies stopped allowing customers to pay allofmp3.com for music downloads and by July the Web site had quietly closed down.

Kvasov always said he was within the law because the site paid part of its income to ROMS, a Russian organisation which collects and distributes fees for copyright holders.

The judge agreed with his defence.

"Everybody who uses soundtracks has to pay a certain amount of their income to the rights holders and this company has done that," she said. "MediaServices has paid a certain amount of money to ROMS."

At the height of its popularity allofmp3.com attracted millions of bargain-hunting music lovers across the world. It would typically sell the world's most popular tracks at a huge discount to U.S. competitors.

Russian marketplaces and underground passes are full of cheap copies of music and film on DVDs and Russia's government has been accused of being too lax on protecting intellectual property rights, a basic principle of WTO membership.

But in July Russia's top negotiator on WTO entry said he thought a deal would be ready by the end of the year.

Although allofmp3.com has disappeared, another Russia-based discount music Web site has since emerged -- www.mp3sparks.com, also owned by MediaServices.

Universal Music Will Sell Songs Without Copy Protection

NYT
August 10, 2007
Universal Music Will Sell Songs Without Copy Protection
By JEFF LEEDS

Signaling another departure from the music industry’s longtime antipiracy strategy, the Universal Music Group will sell a significant portion of its catalog without the customary copy protection software for at least the next few months, the company announced yesterday.

Universal, the world’s biggest music conglomerate, said it would offer albums and songs without the software, known as digital rights management, through existing digital music retail services like RealNetworks and Wal-Mart, nascent services from Amazon.com and Google, and some artists’ Web sites.

But the music will not be offered D.R.M.-free through Apple’s iTunes, the leading music service. The use of copy protection software has become a major bone of contention in the digital music business, where iTunes accounts for the vast majority of download sales. The record labels generally have required that retailers place electronic locks to limit copying of music files.

But Apple’s proprietary D.R.M. does not work with most rivals’ devices or software — meaning that music sold by competing services cannot play on Apple’s popular iPod. Some record executives say they believe that the stalemate has capped the growth of digital music sales, which the industry is relying on more heavily as sales of plastic CDs slide.

The offer of Universal’s music under the new terms is being framed as a test, to run into January, allowing executives to study consumer demand and any effect on online piracy. A Universal decision to adopt the practice permanently would put pressure on other record companies to follow suit. That could stoke a wider debate about how to treat intellectual property in the digital era. Universal’s artists include the Black Eyed Peas and 50 Cent.

The effort is likely to be seen as part of the industry’s wider push to increase competition to iTunes and shift leverage away from Apple, which wields enormous influence over prices and other terms in digital music. A month ago, Universal notified Apple that it would not agree to a new long-term contract to sell music through iTunes.

Steven P. Jobs, Apple’s chief executive, made his position on copy protection software clear in February, when he posted a statement on the company’s Web site calling on the record companies’ to abandon their insistence on D.R.M., which he argued had largely failed to resolve the industry’s piracy woes.

So far, only one of the four major music companies, the EMI Group, embraced a wholesale shift away from the usual approach. EMI, which releases music by artists like Norah Jones and Coldplay, first struck a deal with iTunes in which songs without copy protection (and with better audio quality) would be sold at a higher price — $1.29 instead of the usual 99 cents for the restricted songs.

EMI has said the results so far have been promising. Under Universal’s arrangements with digital retailers, at least some of its new music will be sold in unprotected form for 99 cents, company executives said.

Should local radio pay royalties?

LA Times
Bit Player
Should local radio pay royalties?

If you thought the battle over webcasting royalties was hard fought, just wait until the National Assn. of Broadcasters and the RIAA drop the gloves over the issue of performance royalties for over-the-air stations. Having gotten some of the preliminary sparring out of the way, the two behemoths face off Tuesday in D.C. in front of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property. Like the chairman of the full committee, Subcommittee Chairman Howard Berman (D-North Hollywood) is very protective of the entertainment industry. On the other hand, there aren't many lobbying groups in D.C. that can match the clout of the NAB, largely because of the role that TV and radio stations continue to play in lawmakers' re-election campaigns.

The title of the hearing suggests where Berman is leaning: it's dubbed "Ensuring Artists Fair Compensation: Update the Performance Right and Platform Parity for the 21st Century." I think it makes a lot of sense to have a common standard for royalty payments among broadcasters regardless of how their signal is delivered. Already, broadcasters of all stripes, whether they be terrestrial, satellite or Internet, pay similar percentage-of-revenue royalties to those who hold copyrights to the public performance of the songs. But the amounts paid to those who hold the recording copyrights are all over the map. At the high end, webcasters have to pay a fraction of a penny for each song streamed to each listener (although some small and non-commercial webcasters get a discount). At the low end, local radio stations pay nothing. XM, Sirius and cable-TV based services fall in between, paying a percentage of their revenues.

Fred von Lohmann of the Electronic Frontier Foundation has argued, in response to my previous post on this issue, that collecting more royalties wouldn't serve the basic purpose of copyright law. The point of copyrights is to provide an incentive for those who create music. With plenty of music being created, Fred says, there's no reason to obligate terrestrial broadcasters to provide more incentive by paying royalties. If anything, he said, the obligation should be dropped from webcasters so that they'll have parity with local stations.

That's a more persuasive argument than claiming that radio decreases music sales, which the industry lobbying group in favor of the new royalties contends. Geez, I thought it was piracy that was killing music. Or maybe home taping. Still, I think it's fair for record companies to ask Congress for a recalibration of the decades-old deal that allowed local stations to play music without paying for the rights to the recordings. There's no question that radio isn't driving the volume of sales that it used to generate -- nothing is in the file-sharing era. And just from a spectator's point of view, I love the idea of the RIAA and the NAB squaring off. Bring on the steel cage!

Copyright Criminals: This Is a Sampling Sport

Great video (labeled a work in progress) with artists and scholars discussing audio sampling. Saw it first on Audio Lemon via Copyright Criminals.

YouTube Guitar Lessons Pulled in Copyright Spat

NPR
Media
YouTube Guitar Lessons Pulled in Copyright Spat
by Frank Langfitt
Morning Edition, July 6, 2007 · Thousands of guitar students lost a valuable resource last week. The most popular guitar teacher on YouTube saw his more than 100 videos yanked from the site. The reason: a music company accused him of copyright infringement for an instructional video on how to play a Rolling Stones song.
Digital Culture
Learning Guitar for Free (for Now) on YouTube

All Things Considered, April 2, 2007 · Let's say you want to learn to play guitar — but you don't have the time or money for lessons.

Why not try YouTube? A number of people teach guitar on the video-sharing Web site, offering lessons for free.

In the past few months, two teachers have posted around 200 videos that demonstrate everything from basic strumming techniques to the opening riff of "Sweet Home Alabama." So far, people around the world have watched the videos a total of more than 3.5 million times.

One of the teachers is David Taub, who lives in San Diego and often appears wearing a flannel shirt and a backwards baseball cap. A one-time bar band rocker from New Jersey, he opens each video with the same line: "What's up, good people!"

His most popular video, a simplified version of the Eagles' "Hotel California," has been viewed more than 125,000 times.

The other teacher is Justin Sandercoe, who lives in London, where he teaches guitar and plays with a famous pop singer. He's a mellow presence with an impish grin. Among his song lessons is an acoustic version of Britney Spear's "Hit Me Baby One More Time" that is surprisingly affecting.

The teachers play slowly and use close-ups, showing each finger movement. If you don't get it at first, you can hit replay. It's like having a teacher with endless patience.

The lessons are informal and feel home-made. Sandercoe sometimes appears sitting on his floor, with his hair matted at different angles. Taub's lessons are mostly unedited and include moments like his golden retriever eating his guitar pick.

Taub sees the videos, at least in part, as a marketing tool for his paid instructional Web site, NextLevelGuitar.com. His videos emerged last year as an experiment when one of his students, Tim Gilberg, shot video of Taub teaching.

"We filmed about 10 minutes in his backyard," Gilberg recalls. "I put it up on Google. Then I forgot about it. Basically, two months later I went to see how many visitors we had. There were about 6,800 visitors, and I was like: Wow!"

Then they posted the videos to YouTube, and the audience took off.

On the free videos, Taub teaches the basic chords to popular songs, but he holds off explaining some of the riffs so he can drive people to his site. After playing a riff from Sheryl Crow's "If It Makes You Happy," he stops playing and says, "But if you want to learn that, you're going to have to go to our full site for the lead lines, okay?"

Gilberg says the Web site has hundreds of members after only six weeks.

Justin Sandercoe also has a teaching Web site — justinguitar.com. He has a few ads and takes donations through Paypal to cover the site's hosting fees. But Sandercoe doesn't charge visitors; he says he sees the site as more of a public service.

"I like the idea of being able to deliver quality guitar lessons to people who can't afford lessons, or who are in places where there's not that kind of access to somebody who can teach them the right stuff," he says.

When Sandercoe was growing up in Tasmania, it wasn't easy for him to find great teachers. He hopes his videos will help kids in places like Sri Lanka or India who may not be able to learn otherwise.

Sandercoe now has fans around the world, who often e-mail him with questions and requests for specific lessons. One is Linda Dumitru, who lives in the Netherlands and used to pay $26 for a half-hour lesson. But she stopped, she says, because she couldn't afford it. Then one day she typed "Johnny B. Goode" into YouTube and found one of Sandercoe's videos.

Now, she plays along to his videos in her apartment after dinner. Dumitru says Sandercoe's laid-back approach makes her want to learn. She talks about him as if he were a helpful, next-door neighbor.

"Every time he comes, he says: 'Hi, I'm Justin.' He says, 'Don't worry if you have trouble with the chords, because everybody has problems with it.'"

She adds: "It's like he understands you. He knows what you're going through."

When Sandercoe isn't teaching, he plays with Katie Melua, a star in Europe, so he's used to some attention. But his work on the Internet is raising his profile in ways he didn't expect.

"I got recognized on a bus the other day," he says, sounding amazed. "I literally went into town to do a bit of shopping, and I was on the way back and this kid goes: 'Are you Justin, the guy who teaches from YouTube?'"

But if learning pop songs for free online sounds too good to be true, it may be.

John Palfrey, executive director of the Berkman Center for Internet and Society at Harvard Law School, says most of the songs Sandercoe and Taub teach are under copyright. He thinks it's only a matter of time before a licensing company orders YouTube to take them down.

"There's a very strong argument that the re-use of well-known chords in the sequence the instructor played them would be a violation of the copyright," Palfrey says.

Sandercoe doesn't think he's doing anything wrong. After all, he says, he rarely plays the songs all the way through. But Palfrey says all it takes is a few notes.

And although Sandercoe sees his Internet teaching as a public service, he has benefited from it.

Since he put his Web site up last year, he has developed a long waiting list for the lessons he teaches in person. And both he and Taub say that's still the best way to learn.

If someone tells Sandercoe to take down his song lessons, he says he will. But his most valuable videos are the ones that teach guitar basics — things like strumming, scales and finger-picking.

And even in the digital age, no one holds a copyright on those things.

M&C Note: As far as I know, you cannot copyright chord progressions.

Anger over DRM-free iTunes tracks

BBC
Anger over DRM-free iTunes tracks
The launch of music tracks free of digital locks on iTunes has been overshadowed by the discovery that they contain data about who bought them.

Some fear this data could be used to identify the owner of the tracks if they turn up on file-sharing sites.

The tracks from record company EMI cost more and are of a better quality than standard iTunes songs.

Apple has yet to comment on what it plans to do with the information embedded in the music files.

Lock off

The tracks without the digital locks, known as Digital Rights Management (DRM) technology, officially went on sale on 30 May under the iTunes Plus banner. The downloads cost $1.29 (99p) rather than $0.99 (79p).

Apple uses a technology known as Fairplay to limit what people can do with downloads. Fairplay can be circumvented by burning tracks to a CD and then converting them to another format.

News site Ars Technica was among the first to discover that downloaded tracks free of Fairplay have embedded within them the full name and account information, including e-mail address, of who bought them.

It suggested that this information could be an anti-piracy measure as it could help work out who was putting downloads on file-sharing sites.

But it also added that the user information was found on all the tracks that people buy on iTunes whether free of DRM or not.

It was not clear, said Ars Technica, whether the data was part of Apple's administration system for iTunes or something else. It said because the data was easy to spoof Apple needed to explain why the data was present.

The BBC has contacted Apple seeking comment but so far the company has made no official response.

Other websites said it was only a matter of time before a utility program was produced that which stripped out the identifying information.

At this point it is not yet clear how deeply the user data is buried in the track or how easy it is to remove.

EMI's decision to sell DRM-free tracks was announced in April.

At the launch event Apple boss Steve Jobs announced that the iTunes store was the first to sign up to sell them.

Tracks by artists such as Coldplay, Joss Stone, Frank Sinatra and Pink Floyd are available without DRM technology.

The EMI/Apple move followed an open letter penned by Steve Jobs in February that called for music companies to release tracks without digital locks.

Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/2/hi/technology/6711215.stm

Published: 2007/06/01 14:26:40 GMT