Off Book: The Evolution of Music Online (a/k/a progress SOPA would end)

Off Book: The Evolution of Music Online from PBS Arts on Vimeo.

“Expert” is only a name; an “expert’s” ideas are only as good as the ideas themselves.

This is the honest truth: back when the Napster case was pending on appeal (the appeal Napster would eventually lose), I was teaching a legal writing class and the problem was about copyright and fair use in connection with a web site that used posted exerpts of copyrighted works and also an online “bulletin board” (it was that long ago) for discussion of the works. I told my class that I thought that if the music industry had any sense they’d put significant excerpts of every work in their catalogs in streaming audio next to a button that would allow electronic download of an mp3 file of each song for a price.

I bring this up not to boast that I am some brilliant businessperson who would’ve wisely been picked up by Apple to help produce iTunes. I have no doubt I’d read the idea a hundred different places and that it sounded good to me. So why do I bring it up?

The students reacted this way: it’s a stupid idea; if it weren’t, the music companies would’ve done it already. What would I know that they don’t? I was left almost speechless. I asked them if they really believe that people who do things necessarily know what’s best with respect to doing those things. They apparently did. I told them I thought that it was very important that they learn that just because an “expert” thinks certain things about his area of expertise doesn’t mean that a non-expert can’t have better ideas, and that it certainly isn’t the case that an entire industry necessarily does business in the best way it could.

I was reminded of all this when I read at Ars Technica that “Geoff Taylor, head of UK major label trade group BPI, wrote an op-ed piece for the BBC today in which he called Napster the ‘Rosetta Stone of digital music,’ said it was ‘simple to understand and use,’ and said that the music industry should have ‘embraced Napster rather than fighting it.’”

Colbert, remixed!

Representing clients in a changing world

This item, from Techdirt, should give some pause to lawyers who represent copyright holders: the top selling MP3 download on Amazon last year was Nine Inch Nails’ Ghosts I-IV album.  As Techdirt explains, this means, “[i]n other words, you could go on pretty much any file sharing system out there and legally download the music for personal use… and yet it was still the top selling downloadable album (this is on top of all the money earned by Reznor’s other business models associated with this album).”

A lawyer’s job is to represent the best interests of his client.  It may well be that the best interests of copyright holders in an environment where digital information can instantly be duplicated and instantly be disseminated world-wide is to find new business models, not to persist in the 20th Century habit of filing infringement lawsuits.  It seems silly, for example, (as IP Watchdog points out) for Gatehouse Media to be suing “the New York Times alleging copyright infringement by the New York Times because one of the papers owned by the Time, namely the Boston Globe, was linking to original articles owned by Gatehouse Media.”  Gatehouse’s allegations of infringement are based on the fact that the links, though they provide attribution to Gatehouse, are “deep links” — that is, they are links to the articles themselves that, therefore, bypass Gatehouse’s homepage (and, presumably, the advertising on the home page).

The court in Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-07654 (CD Calif. Mar. 27, 2000)(pdf), found that deep linking was permissible. Tickets.com had provided deep links to pages on Ticketmasterrs website to guide readers precisely to the spot the could purchase tickets for specific shows. Ticketmaster wanted readers and customers to come through Ticketmaster’s homepage. The Court stated:

The customer is automatically transferred to the particular genuine webpage of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.

The court concluded the deep links provide by Tickets.com did not constitute copyright infringement. Nevertheless, other deep linking cases (discussed by Gayle Campbell and Patty Steib here) make clear that the legality of the practice (like so much in copyright law) has not been finally determined.

But Gatehouse Media’s lawsuit seems intended to stop a practice that can only benefit Gatehouse Media by bringing more traffic to its site.  And what good are links if, for example, I left you wandering through a webiste trying to find the right page rather than sending you straight to it?

For some lawyers, unfortunately, a right is only something to be vindicated, not just one factor among many that need to be taken into account in seeking the client’s best interests.

Lessig on Copyright Law: 5 ways to improve it.

Starting his article with an account of the silliness Universal Music Group visited upon Stephanie Lenz, Lawrence Lessig makes a compelling case that the existing regime of copyright laws subverts its very purposes — motivating creativity. Accordingly, Lessig proposes the following revisions to our laws:

1. “Where the creativity is an amateur remix, the law should leave it alone. It should deregulate amateur remix.”

2. “Deregulate ‘the copy:’ Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a “copy,” that makes as much sense as regulating breathing. The law should also give up its obsession with “the copy,” and focus instead on uses — like public distributions of copyrighted work — that connect directly to the economic incentive copyright law was intended to foster.”

3. “Simplify: If copyright regulation were limited to large film studios and record companies, its complexity and inefficiency would be unfortunate, though not terribly significant. But when copyright law purports to regulate everyone with a computer, there is a special obligation to make sure this regulation is clear. It is not clear now.”

4. Restore efficiency: “[W]e should return to the system of our framers requiring at least that domestic copyright owners maintain their copyright after an automatic, 14-year initial term.”

5. “Decriminalize Gen-X: The war on peer-to-peer file-sharing is a failure. After a decade of fighting, the law has neither slowed file sharing, nor compensated artists. We should sue not kids, but for peace, and build upon a host of proposals that would assure that artists get paid for their work, without trying to stop ‘sharing.’”