Naughty or Nice?
The recording industry has described the free airplay their songs receive on AM and FM radio as “a form of piracy.” It has sued customers for copying purchased CDs to their own computers, and for selling or simply tossing out unsolicited promotional CDs.

In a year in which arguably the best album is Feed the Animals, a self-issued, “pay what you want” project by Girl Talk, it’s safe to say the recording industry is getting very little good news for Christmas.

Billboard reports:

1. Music sales were down anywhere from 10% to 30% and hit albums released for Black Friday didn’t perform to expectations.
2. Label executives report that at big boxes like Wal-Mart and Barnes & Noble, sales for the Black Friday weekend were off anywhere from 30% to 40%.
3. At New England-based Newbury Comics, sales were down 21% on a comparable store basis for the last two weeks of November, while music sales were down 28%.

eMarketer reports:

1. New sources of revenue streams are not enough to pick up the slack from free-falling CD sales.
2. Worldwide spending on all recorded music will decline—falling from $31.8 billion in 2006 to $26.2 billion in 2011.

Anatomy of a “Dinosaur Business Model”
This week, the Motley Fool published an analysis of the recording industry’s prospect as a long-term investment. It’s nice to see some non-lawyers simply evaluating the impact of the industy’s legal and business moves. Here’s the Fool’s operative sentence for investors:

The recording industry strikes me as a perfect example of the type of non-innovative industry that long-term investors should avoid like the plague.

There’s a ton of innovation in entertainment. Gaming is forecast to be resilient; there are lots of new film and broadcast distribution models. Even in music, new models are growing. But since the recording industry has resisted innovation, these new channels will force competition, and in some cases will simply go straight to artists, cutting out labels entirely.

There’s great music to look forward to, but for the recording industry perhaps Robert Cray said it best: “The forecast calls for rain.”

Wylie Gustafson’s famous Yahoo yodel has been named the first soundmark in India.

India defines a trademark as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person to those of others.” Yahoo used musical notation in its application to represent its famous “Yahoo” yodel. The application took three years to approve, and is followed by Nokia’s distinctive ringtone, which is still in process.

Visit the USPTO’s collection of famous soundmarks.

I’d encourage you to steal Girl Talk’s breakthrough fourth album, but you can’t. It’s pay-what-you-like, so if you like, pay $0.00 to start listening and return to toss in a payment later. Start your download during this golden time before DMCA takedown notices and TROs make this a coveted, though still free, file.

Under the name Girl Talk, Greg Gillis creates music out of dozens of songs mashed together on each of his tracks. His fourth album, Feed the Animals, uses over 300 samples, much of it easily recognizable pop music which is recontextualized into 3-4 minutes musical cultural reference montages. He releases his work under a creative commons license on a “pay what you like basis.”

A biomedical engineer in Pittsburgh by day, Gillis is now making the charts in Rolling Stone and accumulating praise for integrity and creativity, both in his art and in his approach to copyright from unusual sources. The Wall Street Journal, not the usual source for breaking music news, describes Girl Talk’s work as “propulsive dance music” in a lengthy and enthusiastic article.

Then there’s his Congressman, Mike Doyle, who offered perhaps the coolest congressional testimoney, referencing Paul McCartney’s admission that he nicked the Chuck Berry bass riff for the Beatles’ hit “I Saw Her Standing There” in testimony about RIAA’s over-reaching tactics to enforce copyright. While established artists have used their popularity to bypass labels and offer works on a “pay what you like” basis, this may be the first case where a totally new artist will use this model to gain fame and substantial sales.

Some days, following online copyright law is both cool and fun. Enjoy the tunes!

Its kind of the opposite of, “do unto others”.

When Universal Music lost an infringement case to Bridgeport Music, it did an unexpected thing. It apparently made a successful case that punitive damages tacked on to statutory damages are unconstitutional.

As a plaintiff, Universal has argued in other cases for very high fines. It is, in fact, currently in just such a case, where its arguing against substantially the same constitutional argument and in favor of even larger fines than those they claimed to be unconstitutional.

Continued

It seems the RIAA is trying a surge of their own by increasing the number of take-down notices to universities, estimated to be up by a factor of 20. According to Wired.com:

University of California at Berkeley’s chief information officer Shel Waggener confirmed he’d heard of the spikes and suggested there was a political purpose driving them.

“Public universities are in a unique position since the industry puts pressure on us through state legislatures to try to impose what are widely considered to be draconian content monitoring measures and turn us into tech police forces in support of a specific industry,” Waggener said.

The RIAA is also backing legislation in states such as Illinois and Tennessee that would require schools that get a certain number of notices to begin installing deep packet monitoring equipment on their internet and intranets.

Continued

In the court case of Atlantic v. Howell, the judge denied a request of summary judgment against the Howells. The court decision was surprisingly incisive, rejecting the RIAA’s argument that merely leaving copies of copyrighted works in a place where someone might copy them, without any evidence that they did, is a violation.

This so-called “making available argument” has been shot down twice recently in courts, after February’s Atlantic v. Brennan ruling. If sustained, the RIAA’s cases will require proof that files made available are actually distributed.

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Music giant EMI is demanding that music file storage company MP3tunes turn over all music stored on its servers. Apparently, EMI is demanding this irrespective of who owns, or published, the music. What is unclear is what “hand over” means in this context. Clearly, though, it does mean EMI seeks to violate the privacy and personal property of MP3tunes subscribers.

MP3tunes allows its 125,000 users to back up their music files online in case their PCs have a meltdown, and affords the ability to transfer music to different user-owned devices in a low-hassle way – called “place-shifting.” It is not a file-sharing service.

This case underscores the differences between old and new media in terms of copyright: In what manner do intellectual property rights follow the work product, rather than the form it takes?
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Image: CD on a leash

Universal Music Group (UMG) is suing Troy Augusto, owner of Roast Beast Music Collectables, who sells promotional CDs on eBay. UMG claims promo CDs are for personal use only and, according to the agreement contained thereon, cannot be redistributed —including being sold, given away, or even thrown away. The discs are usually sent out to music publications and radio stations. But as promotional materials, are these discs no different than brochures or product samples?
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At this year’s SXSW Music and Media Conference in Austin, an idea was floated that was supposed to “monetize anarchy” found in the music industry vis-à-vis illegal copying. The idea: a five dollar monthly surcharge on broadband internet service as a royalty for downloading music illegally. This is also known as a “utility model.”

But it isn’t really; it’s a private-industry tax on behalf of a failing industry. It’s like a shopping mall that combats shoplifting in one single store by forcing everybody who enters the mall to pay an entrance fee, just in case they might want to steal from that one store. This is insulting to consumers and a presumption of guilt — and it violates any notion of due process.

Continued

Penn Jillette is the taller, louder half of the magic and comedy act Penn and Teller.  He is also a research fellow at the Cato Institute and has lectured at Oxford and MIT. Somewhere along the path of being a magician, writer of best-selling books, and producer of a film about a single dirty joke, he developed an affinity for IP rights.

But Penn gets steamed when RIAA members suggest that ripping a CD to your iPod should be illegal. Why would anyone suggest ripping a single file is illegal? Just think how much easier that is to prove than the whole “making available” requirement in copyright infringement.