Music Row News Archives

Thomas asked judge for new trial for damages

On Monday, Jammie Thomas’ attorney, Brian Toder, filed a motion asking that the judge set a new trial to determine damages or, in the alternative, for a remittitur. Thomas is the woman who was recently found guilty of copyright infringement as a result of which the Plaintiff was awarded $222,000.

The Federal Rules of Civil Procedure gives the judge sole discretion to require that the plaintiff “remit” a portion of the award back to the defendant if he finds that the award is “palpably and grossly excessive” as a matter of law. See Douglas v. Cunningham, 294 U.S. 207, 210, 79 L.Ed 862, 55 S.Ct. 365 (1935). The motion requests that U.S. District Michael Davis reduce the award to between zero and $150 dollars. As an alternative, if the judge deems all 24 uploads to be a single infringing act, an aggregate punitive award of $750. The defendants entire brief can be read on the blog, Recording Industry v. the People.

Thomas’ attorneys base their requests on the sole grounds that the award of $222,000 is excess and, therefore, violates the Due Process clause of the United States Constitution.

Courts have universally found that when a punitive damage is awarded, as is the case with the statutory damages awarded in Thomas, the defendant must be given due process with regard to the award of the damages. Her attorneys are arguing that Thomas did not receive due process in this case because the award of $222,000 was grossly in excess of the actual damages sufferred by the Plaintiffs for the infringement of 24 songs which could be purchased online for $1 each. [They cite Zomba Enterprises v. Panorama Records, Inc, 491 F.3d 574 (6th Cir. 2007) and State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003), both infringement cases where the ruling was that due process was violated because the punitive damages were over 100 times greater than the actual damages).

This is a very viable motion and one which I feel the court might seriously entertain. However, there is one other alternative available to the Court: the Court can treat each song as an act of infringement and therefore award statutory damages of $750 for each infringement, which would make the remititur closer to $18,000. It would certainly be ironic, if not a bit poetic, if the Court remitted the award to somewhere between $3,000 and $5,000 which is exactly what the RIAA proposed to the recipients of its pre-litigation letters.

Tags: RIAA+Litigation, Jammie+Thomas, Digital+Download, Copyright+Infringement, music+law, entertainment+law

Copyright Issues, Entertainment Industry News, Music Law, Music Row News, Songwriting

Holy Copyright, Batman! The Legal Doctrine of Scenes a Faire

Magic Hat This article originally appear in the print edition of Law on the Row, Volume 2, Issue 1 on September 9, 2002.

Imagine two musical works written in a minor key using a standard jazz progression such as I-IV-II-V. Further imagine that Work B is alleged to be an infringement of Work A. The author of Work B hires an expert who testifies that the 16-note melodic line in Work B that is identical to the 16-note melodic line in Work A is not entitled to copyright protection because that melody is “dictated” by the jazz chord progression, and, therefore, there is no infringement. This analogy describes a new and novel use of the legal concept known by the French moniker, scenes á faire.

The phrase scenes á faire refers to certain distinct elements — characters, settings, or incidents, for example — in a copyrighted work that are absolutely necessary or indispensable in describing a particular “scene.” See, Atari Games v. Oman, 888 F.2d 878 (D.C. Cir 1989). For example, in creating a story about the music business in Nashville, one would expect references in the story to such elements as Music City, Music Row, songwriters, producers and the Bluebird Café. If a copyrighted novel contained those elements, those specific portions of the work relating to the scenes faire would not be entitled to copyright protection, and a second novel containing the very same elements would not be an infringement.

Thus, the concept of scenes á faire is applied in circumstances such as those described to limit the scope of copyright protection.

It is also important to note that the concept of scenes faire has traditionally been applied specifically to infringement actions involving novels, literary works and computer programming code. More recent attempts have met with success, however, in applying the doctrine to the comparison of lyrics alleged to be infringing. Even more recently, novel attempts have been made to apply the concept of scenes faire to the musical phrases and melodic lines of musical compositions

If a position such as the one described in our analogy could be argued successfully, then the amount of damages to which the author of Work A would be entitled is severely reduced, if not eliminated entirely. The copyright owner would end up with, at best, a musical work where certain sections of the melody and certain sections of the lyrics are entitled to protection — indeed, he have a copyright full of holes!

Of course, a simple mathematical calculation yields literally hundreds of thousands of permutations consisting of acceptable melodies which may be superimposed over the jazz chord progression common to the two works, yet this simple fact does not prevent the use of this argument in copyright infringement actions. Although the issue has arisen in the context of summary judgment, as of yet no court has issued a direct ruling on the application of scenes faire to melodic phrases or chord progressions.

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Internet Law, Life on the Row, Music Industry, Music Row News

The Digital Lowdown: What’s a good deal?

The author, Steven Corn is the co-founder of Big Fish Media, a digital music distribution company working with all the major download music services like iTunes, eMusic and Napster. He is the author of the blog, The Digital Lowdown. This article appeared in Issue 32 of Royalty Week, dated October 9, 2007 and is reprinted here with the permission of the author.

Recently the CEO of Vivendi, Jean-Bernard Levy, called the deal between Apple and its music providers “indecent” and complained about the lack of a differentiated compensation structure. His simple, yet bold, comment reflects the primary complaint that the major record labels have with the iTunes business model. They feel that they are not getting paid enough and they want a better deal from iTunes. As a provider of over 50,000 tracks to iTunes (and other services), one might think that I would agree with his viewpoint. However, his statements are flawed and represent a desperation that pervades the music industry today.

Referring to the iTunes deal as “indecent” is nothing short of a hyperbole. When a UMG CD is sold for $13.99, the distributor generally receives about $9.99. The record label would probably receive $5 – $6 per CD. (Note: these figures vary greatly from album to album and distributor to distributor. This estimate is admittedly rough but serves merely to give a general idea of the revenue splits for selling CDs.)

If the CD being sold is a Universal Music Group artist and the distributor is Universal’s own company, then Vivendi can claim to earn about 70% of retail sales. This is remarkably similar to the wholesale price of an iTunes sale. If a particular CD is an older catalog item, the distributor might offer it at a discounted price. This is reflected in CD sale prices ranging from $9.99 – $11.99. The wholesale on such sales will still remain about 70%.

So, it is unclear how Mr. Levy is calculating his math when he calls the splits on iTunes “indecent.” In many industries, a 70% wholesale price would be considered quite good.

I suppose that a counterargument would be that iTunes makes a lot of money selling iPods and the labels do not share in those revenues (not for any lack of trying on their part). And yet, a supplier of socks to Wal-Mart does not make money when Wal-Mart sells shoes. I suspect that the wholesale price for goods in Wal-Mart, a company notorious for having very slim margins, is no better than 70% and quite possibly much worse.

The battle between iTunes and Vivendi is certainly heating up. The labels are, no doubt, greatly concerned with the large market share that iTunes has and relinquishing control has never been a trait of the majors. For many labels, iTunes is becoming their number one retailer topping even Wal-Mart and other big box stores. If the digital marketplace was more diverse with less concentration in one retailer, then it is likely that the labels would be less critical of the wholesale pricepoint on iTunes.

It is interesting to note that Mr. Levy’s comment occurred on the same day as the beta launch of Amazon’s eagerly awaited download store. While Amazon does offer a multi-tiered pricing structure, their wholesale percentages still closely resemble iTunes. Furthermore, the revenue split on competing services like Napster, Rhapsody and Zune are even less favorable than iTunes. These services appear to escape Mr. Levy’s wrath due, I would presume, to their small market share when compared to iTunes.

So, is it the deal that is indecent? Or is it the fact that Vivendi can’t seem to find effective ways to counteract the decline in physical goods? Perhaps it is the basic fear of the power that iTunes wields.

When a market is declining, as CD sales are, it is natural for large companies to maximize their other revenue streams. Consistent with the Wal-Mart analogy, many companies feel the pressure of meeting their targeted price points and margins. And yet, it is very hard to ignore such a major retail outlet, regardless of what products you manufacture. If Vivendi decides to pull out of iTunes, I am sure that most any indie label would be happy to step in and offer their albums for the same banner slots that UMG has secured in the past. Perhaps some consumers will be upset that they cannot buy both a Nine Inch Nails (UMG) and an Artic Monkeys (WMG) track on the same store. But I doubt that it would greatly affect the general appeal of iTunes. Mr. Levy’s comments sound like a game of “chicken” where no one really cares who wins.

Tags: Digital+Downloads, MP3, music+law, copyright, music+industry, universal+music+group, vivendi, record+distributors

Music Row News

Jury awards RIAA $222,000 against Thomas: My thoughts on the verdict

Gavel Expecting a reasonable verdict from a jury of twelve men and women who are incapable of getting out of jury duty to analyze the intricacies of The Copyright Act as applied to the Internet is somewhat tantamount to putting twelve monkeys in a well-equipped laboratory and expecting them to come up with a cure for cancer! The twelve jurors in Virgin v. Thomas found in favor of the plaintiff and determined that the defendant must pay $9,250 for each of 24 shared songs that were the subject of the lawsuit, totally $222,000 in damages.

I’ve tried to think about this verdict from the jury’s perspective. I certainly was not present at the trial and did not hear all of the evidence the twelve jurors heard. I did not see the demeanor of the witnesses, so I cannot evaluate their credibility, as does the jury. Perhaps there were indeed factors that weighed in on their seemingly disproportionate verdict.

Some support for the verdict might be found in the fact that the evidence put on by Thomas’ defense attorney was extremely sparse. To only put up the defendant as a witness was a very risky move, relying solely on her credibility. Why didn’t her attorney hire an expert to examine Ms. Thomas’ hard drive and try to establish the possibility that her computer was hacked, or at least put up a computer technician, i.e., a geek, to offer alternative theories of how Ms. Thomas’ IP address was used to transfer these files — to say that I could hack a computer and use that IP and that person’s user name to download music? That would have been something for the jury to hang a hat on.

Still, based on the evidence reportedly presented about the IP address and user names, it is difficult for me to justify in my mind that there was even an infringement, let alone wilful infringement. See my blog from yesterday entitled Mens Rea and Digital Activity. There is a strong disconnect between what the evidence shows and what the jury decided. As the Wired blog pointed out in its summary of the verdict:

In proving liability, the industry did not have to demonstrate that the defendant’s computer had a file-sharing program installed at the time that they inspected her hard drive. And the RIAA did not have to show that the defendant was at the keyboard when RIAA investigators accessed Thomas’ share folder.

Also, the judge in the case ruled that jurors may find copyright infringement liability against somebody solely for sharing files on the internet. The RIAA did not have to prove that others downloaded the files. That was a big bone of contention that U.S. District Judge Michael Davis settled in favor of the industry.

See RIAA Jury Finds Minnesota Woman Liable for Piracy, Awards $222,000, Wired Blog Network, Threat Level, dated October 4, 2007.

Certainly, the case sets a precedent. I do not, however, rejoice at the verdict, as I’m certain many in my industry are doing. While it may embolden the RIAA to continue their massive “campaign” against individual downloaders, it will also embolden the Internet community to continue their course of conduct if for no other reason than to prove that they cannot be intimidated by questionable legal tactics. Since the RIAA started instituting these types of lawsuits against individuals, file sharing on the Internet has more than tripled, from just over 3 million to 9 million annually! It is not a victory for the record labels. It is most certainly not a victory for the songwriters and artists. The money that was awarded, if it is ever collected at all, will not go to any of those parties – it will go to the lawyers.

So, what is the answer? Massive file sharing over the Internet is, most certainly, copyright infringement, for which a jury can award statutory damages of between $750 and $150,000 in instances where the infringement was wilful, as the jury decided here. That, in my opinion, is not open for debate. And maybe pursuing the infringers individuals does have some deterrent effect, as the RIAA presumes. Certainly, many college students will now be more inclined to settle with the RIAA for between $3,000 and $5,000 when they receive that pre-litigation letter from their school. But, as Sony’s witness testified on the stand, this litigation is a black hole. It is not profitable. How long can the labels continue to fund a losing proposition?

I’ve written many times about the subject of downloads, and it seems to me the answer is, and has always been, to establish a fair means of compensation. People want to pay for their music. They want to reward the artist and songwriter, and even the labels, for the music they enjoy. There was even evidence in this case that Ms. Thomas had, during the time period in question, purchased CD’s of her favorite music. But people do not want to get gouged. They want to pay a fair price. And many feel that the iTunes price of $.99 per song is not a fair price. As the music industry reels from the decline of the CD and begins to wade into the ambiguous waters of the digital world, a word without formats and jewel cases, the issues will eventually be resolved. I believe the fluidity of the marketplace will assist in establishing what people believe to be reasonable. I do, in the end, have some faith in the systems that have helped our competitive markets thrive over the years.

In the end, this is a sad verdict for the legal community. Not quite as devastating as the O.J. verdict, but a miscarriage of justice nonetheless. But, the future is bright and the digital community will continue to shape the future of the music industry, with the RIAA kicking and screaming all along the way. There is a brave new world and we are in the midst of it.

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Entertainment Industry News, Music Row News

Reba named “Woman of the Year”

Reba_Billboard_Cover_sm On Thursday, October 5^th, Billboard magazine will release its 2^nd Annual “Women in Music” issue which honors the top 20 women in music. The list will be revealed at a special breakfast for the honorees at The Core Club in New York. In conjunction with delivering the keynote speech at the breakfast, Music Row’s own superstar, Reba McEntire will be receiving the first-ever “Woman of the Year” award from Billboard.

Billboard established the award “to recognize extraordinary women in the music industry who have made significant contributions to the business and who . . . inspire generations of women to take on increasing responsibilities within the field.”

“I am thrilled to be selected as Woman of the Year by Billboard,” said McEntire. “Although my career has taken me to TV, film, and Broadway, music is and always will be my first love. I am touched to be embraced in such a warm way by Billboard, and I look forward to celebrating with all the Women of the Year.”

McEntire’s most recent release, Reba Duets, released September 18, 2007, showcases her influences on a broad spectrum of genres. The project pairs her with some of the music industry’s biggest names, including Don Henley, Carole King, Kenny Chesney, Justin Timberlake, Kelly Clarkson, Faith Hill, LeAnn Rimes and Trisha Yearwood.

Although her start came in country music, Reba has expanded the scope of her influence into a successful acting career with her portrayal of Reba Hart on the popular television sitcom that bears her name, as well as her performances on Broadway in Annie Get Your Gun and South Pacific.

“Reba’s all encompassing career in entertainment make her an obvious choice to be honored as Billboard’s first Woman of the Year,” said Billboard’s editorial director, Tamara Conniff. “Reba is an inspiration to women everywhere and we are delighted to be presenting her with this award.”

Life on the Row, Music Industry, Music Row News

The Eagles release new album and slated to appear on CMT Awards

-EaglesLongRoadOutOfEden After almost thirty years, my favorite band of all time, The Eagles, have recorded a new album entitled Long Road out of Eden, which features the single “How Long.” The song is climbing the Billboard country chart and currently resides at No. 26. The new single was originally written and recorded by J.D. Souther in 1972 on his self-titled album, Long Road is scheduled for release on October 30, 2007, exclusively through Wal-Mart and online at musictoday.com. To quote another seventies powerhouse band, Led Zepplin, it’s been a long time, been a long time. . . .

In connection with the success of the band’s single on country music radio, The Eagles are slated to perform during the 41st Annual Country Music Association Awards airing Wednesday, November 7 on ABC at 7 p.m. CST. The awards show, back in Nashville after a controversial hiatus in New York. The band is also premiering at the new Nokia Theater L.A. Live with the Dixie Chicks on October 18 and 20.

The Eagles’ country-flavored rock style has always appealed to country audiences, as witnessed by the fact that one of their notable hits, “Lyin’ Eyes” reached No. 8 on the country charts in 1975. Don Henley has recorded in Nashville, and was nominated for a CMA award in 1992 for his duet with Trisha Yearwood on the song “Walkaway Joe.” In addition, a 1994 tribute album, “Common Thread: The Songs of The E Eagles2 agles,” won CMA album of the year.

The Eagles in their various configurations have sold more than 120 million albums worldwide, earning five No. 1 U.S. singles and four Grammy Awards. Their “Greatest Hits 1971-1975” is the best-selling album of all time, exceeding sales of 29 million units. In 1999, RIAA honored the album as the The Best Selling Album of the Century. Their album, Hotel California, has sold over 16 million units since its release in 1976.

The Eagles currently consists of Don Henley, Joe Walsh, Glenn Frey and Timothy B. Schmit, who replaced Randy Meisner after the blockbuster Hotel California album. Other past members of the band include Bernie Leadon, one of the original members from 1971–1975, and Don Felder, from 1974–1980.

Tags: The+Eagles, music+industry+news, music+row+news, entertainment+industry+news, CMA+Awards

Life on the Row, Music Industry, Music Row News

New independent label on Music Row

Radiance

Florida businessmen, David Lowman, Bobby Land, and William Whitacre have announced the establishment of Radiance Records, a new independent country record label.

Lowman’s music industry experience includes fifteen years as a recording and performing artist. Land grew up in Tennessee, graduated from Belmont University, and was signed as an artist with Hickory Records in Nashville before going on to become a producer. William Whitacre is an entertainment attorney based at Universal Studios in Orlando. His client list includes film, television, and record producers, artists, and Internet/multimedia clients. Whitacre launched Cheetah Records and has produced films starring Ernest Borgnine, Mickey Rooney, and Danny Glover.

Mr. Lowman is serving as Radiance’s president, alongside music business veteran Billy Holland, who will be the general manager. Land will act as vice president of the label.

Holland’s background includes development and management of sales territories for Fortune 500 and Global 1,000 companies including Simplex/Tyco and Minolta Corp. Most recently, Holland was Executive Vice President of Cupit Records.

“I am thrilled and excited to be part of Radiance Records. I look forward to many great things to come,” Holland said.

The first act signed to the new label is BlackHawk, a country music band from the 80’s known for such hits as “Goodbye Says It All” and “Postmarked Birmingham.” The group includes original members Henry Paul and Dave Robbins. They have just completed work on their new album with Nashville-based producer Dale Oliver which is set for release in 2008.

Lowman and Land formed Radiance Records to take advantage of current opportunities for independent labels. Lowman noted ,”We feel the time is right for another aggressive independent label to make its mark in the country music format. We’re really excited to be involved with Country music, and especially thrilled to be starting off with a proven hit-maker act like BlackHawk.”

The label’s offices are located at 38 Music Square East, Nashville, TN 37203. The telephone number is 615-255-8404. For more information about Radiance Nashville, please visit www.RadianceNashville.com.

Tags: Music+Row, music+industry+news, entertainment+industry+news, nashville+news

Entertainment Industry News, Life on the Row, Music Industry, Music Row News

The new paradigm of music has arrived!

Law on the Row used to be a periodic newsletter in the physical world that I would send to my clients and mailing list. In the first edition of Law on the Row, published September 9, 1999, I published an article on digital downloading entitled “To MP3 or not to MP3? The catalyst for a paradigm shift in the recording industry.” That article was a harbinger of the paradigm which is still melding in the music industry even now. The focus of this blog is where are we now?

There is a lot of discussion on the web and in the print press these days about the overall health of the music industry, including an article entitled “What’s the future of the music industry” published just last week in the New York Times. The article points out the Nielson statistics for albums sales which indicate that sales have fallen 18% from 2000 to 2006. Certainly, everyone in the music industry appreciates the downturn in sales, however, as the article also points outs, sales in other industries are also proportionately down , such as new cars which have declined 22% over the same time period. Also, downturns in the music industry are certainly not atypical, and the digital download phenomenon is not the culprit of our current downturn.

I have always believed, as I still do, that people are essentially honest and want to pay for things they enjoy. I believe that people do not mind paying for something of value, including music! The success of iTunes, emusic.com, and all of the Russian download sites are indicators of the validity of my belief. Yes, there is illegal activity. Inevitably there will be people who abuse the system and will seek to get something for nothing. But the average person just wants value.

I support the artists and songwriter’s rights to be paid for their time. I even believe that a record label should recieve financial remuneration, even profit, for the marketing, promotion and distribution efforts involved. The simple fact is that people will not work if they do not get paid. If people stop getting paid for music, music as an industry will cease to exist.

Returning to the idea of value for effort, the author the NYT article reminisces about the historical “single,” an idea which deserves some consideration. I remember going to a record store and looking at all of the singles displayed on the wall and picking one or two of my favorites. The beauty of that system was that you got value for your money — you selected the music you for which you were paying. In contract, with the industry’s current “record album” paradigm, you have to pay for 8–9 songs for which you don’t care. Credit digital downloading for bringing back the “single” paradigm.

But again, people want value even for this paradigm. Most people I talk to insist that 99 cents for a single may be too much money. Most people feel that somthing along the lines of 25–40 cents is an appropriate price point. So, in essence, in considering everyone’s interest, including the songwriter, publisher, distributor (and/or record label) and artist, the question become how much are people willing to pay for a digital single to compensate the varying parties for their considerable effort.

The second component, in my opinion, of value for my money is DRM-free music. People want their music to be free of any restrictions. Any form of digital rights management has to be incorporated into this new paradigm. Finally, selection is imperative. People want variety. Apple has only around 500,000 or so songs in their current catalog. This may seem sufficient until you realize that peer-to-peer networks generate catalogs in the millions!

So, how will the new paradigm work? The Electronic Frontier Foundation proposes voluntary collective licensing, which is to say that “the music industry forms a collecting society, which then offers file-sharing music fans the opportunity to “get legit” in exchange for a reasonable regular payment, say $5 per month.” This is, of course, similar to the current method of collecting performance royalties by such giants as BMI, ASCAP and SESAC, as well as a multitude of foreign performance rights organizations.

The collective licensing system is certainly a valid model, however, there are some disadvantages to consider: first, with the risk of overgeneralizing, I note that these models typically favor, again, the players with the most power, i.e., the mega-conglomerates – not the independent artists and songwriters. Secondly, the subscription method favors the supplier, not the demand. Like most consumers, I personally do not like the “subscription-based” model. I don’t like being obligated to a monthly fee, even if I can cancel it. I want an ad hoc pay-as-you-go system — more like iTunes and less like eMusic.

My personal prediction of how the new music paradigm might shake out is dependent upon the efficiency of search engines and indices on the Internet. As the online community of music lovers grows, so does the online community of music providers. Independent producers can sieze the day in many ways. Myspace.com is evidence of this phenomenon. but as anyone will tell you, the old addage of “build a better mousetrap” does not apply in the online world. It less like looking for needle in a haystack and more like trying to find a dime on the ocean floor.

There are certainly headways being made in this arena: take the free Internet radio service, Pandora, as an example. At this innovative site, people find new music similar to the music being played by Pandora’s web-based radio that is based on their selection of favorite music. Another innovative search site is LivePlasma, which displays a graphical sytem of color-coded bubbles that are more or less related to your favorite artists. As more of these types of search engines become available and intergrated into the Web, it will be easier for independent artists and producers to get their music heard. For a much more detailed analysis of this idea, read Chris Anderson’s important book, The Long Tail. Once that happens, the paradigm shift from major labels to independents will be complete.

Tags: Entertainment+Law, Digital+Downloads, MP3, Music+Law, Music+Row, DRM

Life on the Row, Music Row News

UMG to move off of Music Row

Suntrust

Luke Lewis, Chairman of Universal Music Group here on Music Row, announced yesterday that the company will be relocated to the new SunTrust Plaza at 401 Commerce Street in downtown Nashville, right next door to the famous Ryman Auditorium.

UMG follows Other Nashville labels that relocated to locations in Nashville other than Music Row: Lyric Street Records, located on Demonbreun, and Capital Records, located on West End.

Reactions of other Music Row residents to the exodus of this powerhouse are reported as being mixed in the Tennessean article entitled Universal will leave Music Row for downtown. Harold Bradley, president of the musician union, is credited with the formation of Music Row in 1954 together with his brother Owen. Mr. Bradley describes the move as “sad news” and as “breaking the ranks.” He remembers a Music Row where walk-about traffic was the way business was done.

Mr. Bradley knows first hand that the country music industry has always been a tight-knit community, somewhat segregated from the “suits” downtown. Not that we aren’t an integral component of Nashville’s business community, but we always did business differently – in a more lay-back fashion. The standard line when making an appointment was, do you want my morning slot or my afternoon slot?

But the country music industry has changed tremendously over the last ten years or so. Nashville is no longer a handshake town. It’s a subisidiiary town. No longer are most of the major decisions about potential artists made on Music Row – the chances are they are made in New York, Japan or Germany. Perhaps this trend to move off the Row is just a reflection of how business is done these days. So, I agree with Harold, it is sad.

Tags: Entertainment Law, Music Law, Music Row, Nashville

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Life on the Row, Music Row News

SpiralFrog continues to expand catalog

Spiral Frog

The New York-based online music site, SpiralFrog is continuing to grow its catalog of freely downloadable songs. SpiralFrog describes itself as “a Web-based advertising-supported music experience that combines music discovery tools with free and legal downloads of audio and video content.”

Music Row’s own Frances Preston (see my earlier blog regarding her recent award) sits on SpiralFrog’s Board of Directors.

In the past several months alone, SpiralFrog has inked deals with the likes of Universal Music Publishing (8/30/07) and more recently INgrooves, a subsidiary of Isolation Network, Inc. (9/12/07), a digital media distribution and publishing company.

The aggressive expansion gives SpiralFrog subscribers free access to approximately 900,000 songs and videos. Although free, the music has severe limitations, namely, it cannot be played on either the iPod or the Zune, cannot be played on an Apple computer, cannot be burned to a CD, and can only be transferred to up to two of the Windows DRM-approved devices. Finally, NO MP3 format!

This business model proves once again that many executives in the fledgling online music industry do not understand how the consumer wants to use their music. The music must be unfettered! The average consumer is more than happy, in my humble opinion, to pay a fair price (no, not 99 cents Apple!) to purchase and download a song provided that it is not restricted in any way.

While I’m on the subject of restrictions, I might point out that music downloaded to iTunes often falls into this category. The popular software from Apples is quirky, buggy and bloated. Again, if I purchase music, I want it unfettered. I don’t want to be locked in to a really bad piece of programming such as iTunes.

Until a company finds a business model that really provides such unfettered access, they will not succeed. The closest solution I’ve found so far is eMusic.com. All music downloaded from eMusic is MP3 and DRM-free. Of course, because of its business model, eMusic is unable to ink licensing arrangements with most major distributors.

I’d really like your comments and opinions on ths issue.

Tags: Entertainment Law, Frances Preston, Music Law, Music Lawyer, Music Licensing, Music Row, Nashville, SpiralFrog