Via Mike, here’s an L.A. Times article on the thriving music industry. No, not the one represented by the RIAA, the other one:
While the U.S. recording industry continues to slide under pressure from illegal downloaders and file-sharers, the other side of the music world–businesses catering to those who create the music–has nearly doubled over the last decade to become a $7.5-billion industry. The key difference in their contrasting fortunes is a simple physical reality: You can’t download a tuba. But new technology has also been a boon: Digital home recording has played a large role in the industry’s growth and helped a new generation of hobbyist music-makers move out of the garage and onto the Internet.
As I’ve argued before, I think people overestimate the role of piracy in the long-term decline of the music industry. The fundamental problem is that their core competence–pressing and shipping little plastic disks around the country–is becoming increasingly obsolete. It’s true that piracy is accelerating their decline, but the decline would happen regardless, as musicians increasingly discover they don’t need to ship plastic disks around the country in order to get music to their fans.
But I think this illustrates the silliness of the thesis that the music industry is dying, from two perspectives. First, there’s the article’s main point that only some segments of the music industry are hurting, and those gains are largely being made up elsewhere. This suggests that there’s little reason for the average musician to be fearful–as music becomes more popular, there there will continue to be plenty of opportunities for teaching music lessons, giving live performances, etc.
But more fundamentally, I think this is a pretty powerful counter to the notion that musicians need to be paid to ensure we continue to have good music. The vast majority of the people purchasing musical instruments never intend to make a living at it. Many others hope they’ll be able to make a living at it, but realize full well that their odds are long. Yet millions of people still spend billions of dollars training to become better musicians. It’s awfully hard to see how strong copyright protection could explain this. More likely, most people make music because they enjoy making music. And they’ll continue doing so regardless of how copyright law is changed.
I’ve got a new article up at Ars about the Ninth Circuit’s Kahle decision:
Kahle plans to appeal the ruling to a larger panel of the Ninth Circuit, but their prospects don’t look good. With three Ninth Circuit judges already ruling against him, Kahle will face an uphill battle convincing the full Ninth Circuit that his arguments are different from those the Supreme Court raised in Eldred.
That’s a shame, because Kahle’s lawsuit highlights a serious and growing problem. New technologies are greatly enhancing the opportunity to make better use of older creative works. Books that have traditionally sat unread on dusty library shelves can now be made available in searchable form via the Internet. Old films that once languished unwatched in vaults could be digitized and made available for consumers to view in their living rooms. The main thing standing in the way is copyright law.
If the courts ultimately reject Kahle’s arguments, the battle to free orphan works will shift back to Congress. Some scholars have suggested that Congress should enact an orphan works defense that would shield individuals who reproduced a copyrighted work after making a diligent effort to find the copyright holder. The UK’s Gowers Review has recommended that a similar rule be adopted in the European Union. Although this would not make orphan works as widely available as placing them in the public domain, it might be enough for the likes of Kahle and Google.
Since it was a quasi-news article, I didn’t spend much time discussing the case on the merits. Although I certainly hope they prevail, their argument didn’t strike me as terribly strong. And even if the courts are sympathetic to their argument on the legal merits, it’s hard to see what remedy the courts could fashion. They certainly can’t throw all works created between 1964 and 1977 into the public domain, nor could they realistically reinstate a registration system that’s atrophied over the last decade. About all they could conceivably due is rule that the works will fall into the public domain by some particular date unless Congress acts first to reinstate the registration system. But it seems unlikely that a Supreme Court that shied away from locking horns with Congress in Eldred would take the even more confrontational stance that’s urged in this case.
In an op-ed in The American today (and also in comments to National Journal on the reintroduction of the Boucher fair use bill), PFF’s Patrick Ross writes that those of us who advocate reversing the DMCA and strengthening fair use rights have little faith in markets. According to him, curtailing the DMCA means government intervention in emerging markets.
What arguments like Patrick’s ignore is that copyright is unlike other property rights, copyright is a different animal. This is evident in the fact that the power to create copyright is one of the enumerated powers of Congress laid out in the Constitution. Copyright would not exist but for the grace of Congress. If Congress decides to create copyrights, it has complete discretion (within constitutional bounds) to set the outlines of copyright. Congress can decide, among many other parameters, that copyright is for only one year or for 100 or for any length of time in between. Therefore, whatever market in copyrighted works emerges once Congress has created copyright, it must conform to the shape of the copyright Congress created.
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I’m reading the briefs leading up to the Ninth Circuit’s Kahle decision, (which was handed down this week) and I found this passage, from the government’s motion to dismiss at the district court level, striking:
Under the 1909 Act, a copyright holder could secure a 28-year renewal term only after filing a renewal registration with the Register of Copyrights in the last year of the first 28-year term of protection. S. Rep. No. 102-194, at 3 (1992). “In 1976, Congress concluded years of debate and study on all aspects of the Copyright Act by passing a comprehensive revision to the 1909 law.” Id. Congress identified the copyright renewal revision as “[o]ne of the worst features of the present copyright law.” H.R. Rep. No. 94-1476, at 134. “A substantial burden and expense, this unclear and highly technical requirement results in incalculable amounts of unproductive work. In a number of cases it is the cause of inadvertent and unjust loss of copyright.”
So Congress found in 1976 that requiring authors to file for the renewal of their own works was an unjustified administrative nightmare. This, the government argues, justified scrapping the registration requirement. This despite the fact that this burden and expense is spread across thousands of different authors, and despite the fact that authors know better than anyone else which works they own and which works are still commercially viable.
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I’ve got a good friend who’s a DJ (as a hobbyist), and I asked him for his thoughts on the copyright SWAT team story. I thought his comments were worth quoting:
First, the CDs contain recordings of DJ mixes (the story refers to them as “mixtapes”). A DJ mix consists of someone playing records/CDs/DATs and manipulating the inputs so as to produce a continous flow of music distinct from listening to each single sequentially. The manipulation may include scratching, EQing, sampling, drum machines, digital effects, and mash-ups. Therefore, a DJ mix is distinct from merely uploading/burning a folder of mp3s and distributing it. It’s a performance.
However, the performance is built upon copyrighted material from other artists. When a DJ buys a vinyl/CD/mp3 at a record store, he/she purchases the right of personal listening. Many records will say “Unauthorized public performance, broadcasting, and copying of this record prohibited” on the label. When DJs release professional mix CDs through a record label, they obtain legal permission from the copyright holders to include their tracks in the mix. Dance clubs pay annual fees to the two major artist organizations for public performace rights to cover DJs that play at their venue. Record shops that sell unauthorized mixtapes have been prosecuted for copyright violation, so most stores don’t sell them.
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Radley Balko, who has tirelessly publicized the problems created by the promiscuous use of SWAT teams, reports that federal police in Atlanta have used a SWAT team to help the recording industry enforce copyright law. Even worse, the target wasn’t even a commercial piracy operation:
Last night, a federal SWAT team assisted the RIAA in a raid on the studio of Atlanta musician DJ Drama.
This local news report says the locally famous mixtape DJ is under investigation for piracy. But Drama’s supporters say the DJ is a mix artist, not a bootlegger. They say news footage of the raid shows RIAA officials boxing up only recordable CDs filled with mixes, not bootlegs of retail CDs (the local news reporter seems to conflate the two as well).
Assuming for a moment that RIAA and federal officials do indeed know the difference between a mash-up DJ and a bootleg operation, and that they did find evidence of actual piracy in the bust, there’s still the problem of why RIAA officials were participating in a police action, and why a SWAT team was used to raid a professional studio under investigation for a nonviolent, white-collar crime.
Quite so. It’s not like this is a fly-by-night operation selling CDs out of the back of a truck. This is clearly not the sort of problem that justifies dramatic police raids. If the RIAA thinks DJ Drama’s activities violate copyright law, they have plenty of civil law remedies available that don’t involve Gestapo tactics.
Also, check out the gratuitous smearing of the two as drug dealers and gangsters. A police officer comments that “In this case, we didn’t find drugs and weapons, but it’s not uncommon for us to find other sorts of contraband when we execute a search warrant.”
If they didn’t find drugs or weapons, why did this factoid merit a mention in the story?
I’m one of those people who has an Apple problem. This year it looks like, as expected, the big announcements are an iPod phone and a set-top box. Both of them look pretty cool to me.
Another interesting tidbit is that Apple reports having sold 1.3 million movies in the first four months. That’s obviously a drop in the bucket compared to total DVD sales, but it’s likely to be a significant fraction of high-definition DVD sales. The Wall Street Journal reports that there are about 700,000 DVD players in homes right now. If we assume that each of those customers have purchased 8 DVDs (which is probably high, since many of those “DVD players” are actually PS3s), then total high-def DVD sales are in the ballpark of six million units, meaning that Apple has sold about 20 percent as many movies as Blu-Ray and HD-DVD put together. And that’s with only one studio’s movies (Disney’s) on offer.
Of course, Blu-Ray and HD-DVD boast higher picture quality, so this isn’t an entirely fair comparison. But Apple (and other online vendors) can more easily ramp up picture quality as higher bandwidth becomes available. So it’s at least possible that the winner of the HD-DVD/Blu-Ray battle will be “none of the above.”
Update: Of course I meant that there are 700,000 high-definition DVD players.
WASHINGTON, January 8, 2007–Both the high-tech and the mainstream press go ga-ga over the Consumer Electronics Show. Forty years old, it’s the country’s largest annual trade show, and it officially opens this morning in Las Vegas.
What’s not to like in more than 1.2 million square feet of electronic glitz and glimmer? On Sunday night, Microsoft’s Bill Gates previewed how your car will communicate with your electronic address book and your digital music player. Verizon Wireless demonstrated how you will soon get television from Comedy Central, Fox, and NBC directly on your cell phone. And NetGear announced a “media receiver” for watching TV, movies and Internet videos from the comfort of your leather couch. Think of it as video iPod with an HDTV connection.
The impresario of all these digital goodies is Gary Shapiro, the chief lobbyist for the Consumer Electronics Association. CEA is the tech trade association that sponsors the annual event, raking in more than $80 million. But for Shapiro, who looks and acts like the proverbial kid in the candy shop for four days every January, the show is about more than just money. It’s about scoring points for his group’s public policy agenda in Washington.
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Matt Yglesias points out that the most important thing we need to do to address the problem of the classics becoming inaccessible involves fixing copyright law:
All the ‘sphere’s a twitter about some libraries dumping little-read classics in favor of more high-demand contemporary bestsellers. Julian’s post on this, however, inspired me to remark that far and away the most important thing for the preservation of the classics has nothing to do with library policies and everything to do with intellectual property policy.
In a world where classic works enter the public domain, people will get them one way or another. They’ll be available for free download on the internet. E-book technology will improve. Print copies will cheaply available to people who want to buy them. Whether or not these things are in local libraries sort of won’t be a huge deal one way or another. Now, traditionally, copyrights have had limited durations and “classic” books, being old by definition, tend to be in the public domain and hence widely available. In a digital era, they’ll be super-available. But the emerging trend of the digital era is for retroactive extensions of copyright terms meaning that nothing new will ever enter the public domain. Ever.
Quite so. The vast majority of books from the 20s, 30s, 40s, and so on are currently sitting on dusty library shelves, hardly ever looked at by anyone. We now have the technology to digitize all those books and turn them into a veritable treasure trove of easily-searchable information about decades gone by. Yet in order to ensure that Disney continues to turn a profit on Mickey Mouse, making those hundreds of thousands of commercially worthless works available to the general public is effectively illegal. In effect, 80 years of 20th century culture is in danger of being locked up so that a small number of copyright holders can profit from the miniscule fraction of works from the 1920s that still have commercial value. It’s really quite a shame.
And don’t get me started on the way that copyright law is hampering film preservation.