RIAA Archives

Lance–Reviews of his new album, “What you Make it.”

My new client, Lance, releases his new album, What you Make It on April 20th. Backed up by the Peterson family, Lance joined forces with Berklee College of Music graduate, Randall S. Peterson, who produced this collection; another Berklee grad, Paul Meyer, did the mastering.

The finished product is being met with stellar reviews. This praise is indicative:

. . . one song that I have to chose as my over all play repeat and do it again song it would be “So Into You” . . . Lance did not hold out any of his heart and soul on this song as well as guitar and piano solos that make you want to roll the windows down and drive fast. This jam alone is one of many reason you should purchase this entire album.

Freelance writer Sherry Bach has this to say:

The feel of Lance’s music takes me back to the Atlanta Rhythm Section and Lionel Richie, two greats whose music never gets old. If you don’t remember who those artists are, just think sexy, raw, emotional, beat driven, and mood setting guitar licks – preparing us to feel good and fall in love.

Read the full review here.

Another blogger, educator and freelance writer, Anna Summers, summarized as follows:

[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][Lance’s music] is an eclectic mix of pop/rock and alternative songs with a distinctly soulful, bluesy-vibe that is trademark Lance. There’s something for every palette—from the sexy, sultry “Meet Me Downstairs” to the upbeat, charismatic, can’t-get-it-out-of-your-head Hey Everybody. So Into You promises to be the anthem of summer with its mesmerizing lyrics and shoreline groove. True to its title, this album meets you where life and love intersect, inviting you to make the most of every moment.

From a different media, disc jockey “OC” at KRUF 94.5 FM in Shreveport, Louisiana raves “Excellent tunes Lance! . . . Love the Downstairs tune but then again I love them all!

Finally, Sylphie Mitchell of The Last Note Standing says:

Favorite track . . .? For me, it’s a tough choice. If I want to dance, I’m going to pick “So Into You” because you can’t help but move when you hear it. For quiet moments and pure feeling, I want to listen to “Downstairs” and “I Wish You Were Here”. Lance’s music and lyrics are strong, and given even more depth and color by the Peterson family, who back him up instrumentally. All in all, for this writer, I have to say to LANCE that I “Got Love” and that I “Want (more) Love!”

Lance is currently on a tour of the Hot Topic retail outlets across the Southeast, currently appearing in Regency Square Mall in Jacksonville, Florida. He will be back in the Music Row area on April 19th appearing at the Belcourt Taps & Tapas in Nashville, and then at Borders Books in Brentwood and then at the Cool Springs Galleria on April 20th. Be sure to get out and show your support.

Find out for yourself what everyone is talking about. Submit your own review! But by all means, pre-order the CD here.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Entertainment Law, Music Law, RIAA

Solutions for the Orphaned Works of Copyright: Google Books Decision Highlights Need for Action

The recent decision presented by the honorable Judge Chin on the matter of copyright infringement in the case The Authors Guild v. Google Inc. raised numerous issues in the arena of Intellectual Property. In addition to opposing the “opt-out” stipulation written into the settlement, Judge Chin also contested the way Google Inc. approached and viewed “orphan works” in relation to digitizing books where no copyright owner or recipient could be located or reached. In Judge Chin’s opinion, the matter of orphan works should not to be decided by private enterprise, but is rather a matter for Congress to decide. In so deciding, Judge Chin refers to certain opinions issued by the Copyright Office, as well as legislation that was originally proposed back in 2008.

"Orphaned works" are defined as copyrighted works for which the owner cannot be identified, but which someone wants to use. In other words, works for which the potential user cannot locate or identify the actual owner of the work in order to seek proper permission. Under the current legal structure, even if a potential user makes a diligent effort to find the owner in order to seek permission, the user’s risk of copyright liability for such use is not eliminated because there is always a possibility, however remote, that a copyright owner could bring an infringement action after that use has begun. Although it is difficult to know precisely how many orphaned works are around, one 2009 study conducted by the JISC (Strategic Content Alliance) in the United Kingdom calculated that as many as 25 million such works existed in the libraries, museums and archives of that country. In such situations, productive and beneficial use of the work – something the concept of copyright is designed to encourage – is impeded. It is such a real problem that many organizations, like the Society of American Archivists, have issued statements of best practices to assist their members in dealing with orphaned works. But many potential creators are not members of such an organization and don’t know how to approach clearing an orphaned work for use.

Based on a report on orphaned works prepared by the Copyright Office in 2006 at the requests of Senators Orrin Hatch and Patrick Leahy, the “Shawn Bentley Orphan Works Act of 2008” (S. 2913) was ultimately introduced by Senator Leahy on April 24, 2008. It quickly passed by a unanimous vote on September 26, 2008. The act was referred to the House Judiciary Committee, where it unfortunately lies dormant or, more likely, has stalled or died in committee chambers, suffering the fate of many good laws. Several earlier actions which served the same purpose, such as Copyright Modernization Act of 2006 (H.R. 6052) suffered similar fates. The proposed 2008 act outlined specific guidelines for individuals pursuing and currently using orphan works. The following is a brief overview of the proposed bill and its major provisions.

Under the proposed legislation, in order to use an orphan work, a person would be required to follow very specific steps in order to avoid financial and legal liability for infringement. These rules fall under the section entitled “Conditions for Eligibility,” which outlines the following as steps the person utilizing the orphaned works would need to takes in order to limit liability:

provide extensive evidence that the infringer performed a detailed search in “good faith” to locate and identify the copyright holder and was unable to locate the copyright holder;
acknowledge the copyright holder in an appropriate manner, assuming the copyright holder was known with a reasonable amount of confidence (a form of "moral rights");
provide a mark or symbol in some regard indicating the work is used under this section;
assert in an initial pleading the eligibility for such limitations; and
provides documentation for the search undertaken to locate and identify the copyright holder.

The exceptions to the above guidelines for limited remedy collection do not apply to an "infringer" if: 1) the infringer receives notice of infringement and fails to negotiate in good faith with the claimant or 2) fails to provide payment for the use of the infringed material in a reasonable time period after reaching an agreement with the copyright holder.

Additionally, the individual must search with what the legislation described as "diligent effort” to locate the copyright holder. The phrase "diligent effort" requires, at a minimum: 1) a search of the records at the Copyright Office through the medium of the Internet 2) a search of “reasonably available sources of copyright authorship and ownership information” 3) use of intangible and tangible tools and publications, and where necessary, assistance of others and 4) use of databases available to the public, including those accessible by the Internet.

If someone utilizing an orphaned work follows these guidelines, any award for monetary relief “may not be made other than an order requiring the infringer to pay reasonable compensation to the owner of the exclusive right under the infringed copyright for the use of the infringed work.” Injunctive relief remains an additional remedy offered to the owner in order to prevent or restrain any further infringement action.

The act apparently died its quiet death because of opposition from many copyright groups and, in particular, notable expert Lawrence Lessig, who opposed the bill because of its vague definition of the "diligent efforts" required to avoid liability. Some of these opposition groups even referred to the proposed legislation as a “license to steal.” The Register of Copyrights at the time, Marybeth Peters, believes to the contrary that the orphans works situation is a problem that is "overdue" and that the "pending legislation is both fair and responsible (See Marybeth Peter’s open letter).

This issue is particularly of concern for musicians and artists, since a large number of old recordings are no longer commercially available because of an uncertainty as to who owns them. In addition, creators of new recordings must often abandon projects if a work is "orphaned," for fear of liability. This is a loss not only for the artists, but for the public and our collective culture, i.e., the continuum.

Officially, legislator still deem the legislation to be "pending." In his speech in 2009 in from of the World Copyright Summit, Senator Orrin Hatch state he “continue’s to be very active on passing orphan works legislation.” He continued to say:

For years, I have been working with industry stakeholders and copyright experts, including Marybeth Peters, Register of Copyrights, to pass orphan works legislation. The bill seeks to unite users and copyright owners, and to ensure that copyright owners are compensated for the use of their works. I couldn’t agree more with Register Peters when she said, “A solution to the orphan works problem is overdue and the pending legislation is both fair and responsible.

Judge Chin felt that the Google settlement would have given Google an effective monopoly over orphan works, and that was one of his primary rationales in deciding the way he did. His rejection of the Google settlement highlights this important issue and brings it to the light of public awareness again. Anyone with an interest in intellectual property should contact their senators and representatives and ask why a more diligent effort, no pun intended, has not been made to address a problem that still exists, despite the fact that there has been no movement on the bill in three years. With President Obama’s pro-intellectual property agenda, the time may right to solve this incredible hole in U.S. Copyright law.

Judge Chin rejects settlement agreement in Authors Guild v. Google

Under Rule 23(e) of the Federal Rules of Civil Procedure, a settlement of a class action requires approval of the court. Fed. R. Civ. P. 23(e). The court may approve a settlement that is binding on the class only if it determines that the settlement is “fair, adequate, and reasonable, and not a product of collusion.” This week, with regard to the much ballyhooed amended settlement arrangement (the “ASA”) in The Authors Guild v. Google, Inc. the honorable Denny Chin of the U.S. District Court in Manhattan said flatly “I conclude that it is not.” See full decision.

The ASA would have allowed Google to digitize millions of copyrighted works in an effort to create the largest digital library, a process Google began in 2004 when the company entered into agreements with certain academic libraries to digitize their holdings. Since that inaugural agreement, over 12 million books have been scanned and made available online through Google Books. The ASA would have allowed Google to “(1) continue to digitize books and inserts, (2) sell subscriptions to an electronic books database, (3) sell online access to individual books, (4) sell advertising on pages from books, and (5) make certain other prescribed uses. (ASA §§ 3.1, 4.1-4.8; see also ASA § 1.149).” Google’s rights to the copyrighted work would be on a non-exclusive basis, permitting the copyright holder to exploit the work to other companies, including competitors, while simultaneously allowing Google to display the work, for which Google would have been required to compensate the class plaintiffs 63% of the revenue from all uses of the work to the copyright holder.

Judge Chin recognized the many benefits of an online library with virtually every work ever created are great in number. First, the sheer number of books that students, schools and researchers could access would greatly benefit the public. Those in disadvantaged economies and cultures could access knowledge otherwise not available, and persons with disabilities could learn through the implementation of Braille and audio books. Moreover, publishers and authors would benefit due to the number of books made accessible to the public, especially those works that have been forgotten in the dark and hidden corners of libraries. But as Judge Chin further pointed out,

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far.

At least 500 additional parties filed amicus briefs on the subject commenting, mostly from a negative point of view, on the amended settlement, including such notables and Microsoft and Amazon. In addition, 6800 members of the plaintiff class “opted out” of the settlement. The bulk of the briefs focused on the inadequacies in the settlement relating to class notice and class representation, and on concerns regarding copyright, antitrust, privacy and international issues. Some also argued that the settlement would go beyond the authority of the court under Rule 23 of the Civil Rules of Procedure.

This procedural issue turned out to be one of the more compelling arguments presented to the court. In as much as the settlement would have released certain claims not before court such as, for example, so-called “orphaned works,” the court felt that the ASA was “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”

Orphan works are books that have copyright protection, but the copyright owner identified in the registration certificate cannot be located or reached. Under the ASA, Google was required to “strive” to locate the copyright holder, but if unsuccessful could digitize the book without consent. In this case, and in the case of “absent class member who failed to opt out,” pursuant to terms of the settlement agreement, the copyright owner would lose the right to object to future infringing conduct by Google. The court was “troubled” by this aspect of the agreement. The judge stated:

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.

The court illustrated the concern with a quote from a Texas woman who grandfather self-published his memoirs, Dust and Snow, she says,

From Google’s point of view, Dust and Snow is an “orphaned” book. If and when Google scans it, the company is likely to be unsuccessful in trying to locate the publisher, since the book was self-published and my grandfather is now deceased. In essence, the way the settlement is written, such “orphaned” titles are automatically handed to Google free of charge to do with, as it will. From my family’s point of view, Dust and Snow is not orphaned at all. It is very clear who owns the copyright. So why is Google being granted the automatic right to take over the copyright of books like my grandfather’s?

As noted earlier, Chin stated that such matters as “orphaned works” are best left to Congress rather than private entities to delineate and enforce through such an agreement.

As the literary agents Stuart Bernstein and Susan Bergholz expressed to the court so eloquently:

By accepting this settlement, the court will be setting a highly questionable precedent, usurping the role of the legislature by creating a legal loophole for one corporation and reversing the very foundation of copyright protection. We who have devoted our lives to assisting the work of creative individuals are left with a sense of moral indignation. We have pledged, in our contracts with clients, to sell or license their rights to ethically and financially sound purchasers and licensees. And for many years we have toiled over agreements and contracts to accomplish this, aided by the protections of the law. The situation we find ourselves in now is one of dismay and powerlessness, with only the weak ability to “object” or opt out. We beseech you to give authors back their rights. Force Google to negotiate like any other.

With regard to the fact that the ASA would give Google permission to digitize any work unless the copyright owner “opted-out,” the court also found this to be unpalatable, as it places an unnecessary and unwarranted strain on the copyright owner to initiate an action to prevent copyright infringement, when in fact; the responsibility should be placed on the entity wanting to use the copyright work.

As the Copyright Act explains,

When an individual author’s ownership of a copyright, or any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under the copyright, shall be given effect under this title, except as provided under title 11.” (17 U.S.C. § 201(e).)

As David Nimmer, author of Nimmer on Copyright explains, “By its terms, Section 201(e) is not limited to acts by governmental bodies and officials. It includes acts

of seizure, etc., by any ‘organization’ as well.” However, under the ASA, any copyright owner who fails to notify Google and “opt-out” will lose their right to the copyright and deem Google competent to do with their copyright as they please.

In light of the previous lawsuits brought against Google by publishers and the current settlement recently rejected, Judge Chin says,

It is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission.

The Court was also sympathetic to concerns raised by Microsoft and Amazon that approval of this settlement would, in effect, give Google de facto monopolies over the digital book industry as well as the online search industry. This, of course, raises a number of antitrust concerns by effectively foreclosing competition.

In Google’s pursuit to provide the first digital library encompassing the estimated “174 million unique books,” the information giant has displayed the unequivocal lengths it is willing to take in order to bring more information to more people. As one individual put it, “Google pursued its copyright project in calculated disregard of authors’ rights. Its business plan was: ‘So, sue me.'” Google’s thirst for providing perpetual information to the consumer caused the company to overlook, whether intentionally or accidently, major copyright issues.

In rejecting the settlement, Judge Chin made one very keen observation in his conclusion: ” many of the concerns raised in the objections would be ameliorated if the ASA were converted from an “opt-out” settlement to an “opt-in” settlement.” He strongly urged the parties to consider such an option.

http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115

Digital Downloads, Music Publishing, RIAA

Illegal file-sharing has the greatest impact on the lowly songwriter

A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators… and the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business. –Bono (New York Times, January 2010)

The passage of the Digital Economy Act in England last year has resulted in a surge of articles that claim that the negative impact of illegal downloading of MP3’s on the record industry has been “debunked” and that, in fact, studies confirm the opposite, that there is no significant impact. I recently addressed one such claim on my blog in the article entitled 90% of All Statistics are Made Up on the Spot: Fact is, copyright infringement DOES kill jobs, which addressed an article by Rick Falkvinge. Matther Lasar of Ars Technica recently posted another article essentially making the same claim, entitled Did file-sharing cause recording industry collapse? Economists say no. Lasar’s article is based in large part on a research paper by Bart Cammaerts and Bingchun Meng of the London School of Economics and Political Science entitled Creative Destruction and Copyright Protection: Regulatory Responses to File-sharing..

In response to the DEA, one of the “key messages” of Cammaerts’ and Meng’s study is that common refrain that the decline in sales of CD’s cannot be attributed solely to illegal downloads of their digital equivalents. To be precise, here is their key finding:

Decline in the sales of physical copies of recorded music cannot be attributed solely to file-sharing, but should be explained by a combination of factors such as changing patterns in music consumption, decreasing disposable household incomes for leisure products and increasing sales of digital content through online platforms.

Does this not seem like a circular argument to anyone else that the conclusion that a decline in sales cannot be attributed by file-sharing, a significant change in how music is consumed, is supported by the assertion that it is better explained by a “combination of factors such as changing patterns in music consumption”? This conclusion by the “researchers” is based in significant measure, as are most of the conclusions in the report, on reports and studies done by others, including the long-since refuted study by Oberholzer-Gee and Stumpf conducted in 2004, entitled The Effect of File Sharing on Record Sales: An Empirical Analysis. Oberholzer-Gee and Stumpf erroneously concluded that the impact of illegal file-sharing on the music industry was, in their words, “null” but have since revised their conclusions and now argue that illegal file sharing is responsible for about 20% of the decline in the decline of revenue in the music industry. See File Sharing & Copyright 2010. It seems on the surface that the study is nothing more than rehash of old information. Based on review of these reports, Cammaerts and Meng concluded that “the claims by the music industry regarding the detrimental impact of infringing file-sharing on sales are flawed.”

The fact is all but a handful of the surveys related to the subject confirm illegal file-sharing reduces consumer spending on legitimate music, and confirm that the dramatic decrease in the sales of recorded music is caused by illegal file-sharing. See, e.g., Norbert Michael (The Impact of Digital File-Sharing on the Music Industry: An Empirical Analysis, 2006), Rob & Waldfogel (Piracy on the High C’s, 2006) and Alejandro Zenter (Measuring the Effect of File Sharing on Music Purchases, 2003). A 2006 study by Professor Stan Liebowitz, File-Sharing: Creative Destruction or Just Plain Destruction? concludes that all “. . . papers that have examined the impact of file-sharing . . . find some degree of relationship between file-sharing and sales of sound recordings.” Oddly, the only study that finds zero correlation is the Oberholzer and Strumpf study, which it has been frequently discredited.

The International Federation of the Phonographic Industry (“IFPI”) recently released the IFPI Digital Music Report 2010: Music how, when, where you want it reports what most economists and others who have studied the effect agree on: “Overall music sales fell by around 30 per cent between 2004 and 2009.” p. 6. The good news to be gained from the IFPI report is that overall sales of digital music increased to 27% of the industry’s revenue in 2010, a significant jump from almost zero in 2004.

All of this I say not really to fuel the flames of the the debate related to the cause of the decline in the music industry, but to point out that in the midst of all the studies, all the reports, and all of the conversation, there is one group of people whose voice is often not heard: the songwriter. I began this post with a quote from the incomparable singer-songwriter, Bono, who states flatly what is often overlooked: the people it hurts are the creators. If you read closely through the reports I have linked to in this article, you’ll find very little, if anything, about the impact of illegal file sharing on the songwriter. Yes, there a some vague references to “authors” and sometimes “creators,” but for the most part the researchers focus their impact on the more broad category of impact on the overall sales of recorded music. Very little attention is given to the trickle-down impact, i.e., how it affects the songwriter and the small music publishing companies that line the streets of Music Row here in Nashville. The only report of which I am aware which includes a significant sampling of songwriters is the one conducted by Mary Madden for the PEW Internet & American Life Project in 2004 entitled Artist, Musicians & the Internet. I won’t rehash all of the argument I made in 90% of All Statistics are Made Up on the Spot: Fact is, copyright infringement DOES kill jobs, except to say that most of these studies ignore the songwriter, on which the illegal downloading of songs has arguably made the greatest impact. Even back in 2004, when the study was conducted, 75% of the respondents (which included a pool of artists and musicians in addition to solely songwriters) stated that they held down a second non-songwriting-related job which was their primary source of income. I know for a fact that almost all of my songwriting clients hold second jobs, which prevents them from creating music. The decline in these songwriter’s revenue is a direct result of the loss of mechanical royalties resulting from the massive decline in sales of physical product, not to mention a decline in performance royalties as a result of fewer artist being played on the radio, which is a result of fewer record labels investing in the career of new and developing artists.

This brings me to my last, and perhaps the most disturbing, observation raised by the new IFPI report. The report states that

Illegal file-sharing has also had a very significant, and sometimes disastrous, impact on investment in artists and local repertoire. With their revenues eroded by piracy, music companies have far less to plough back into local artist development. . . .

The impact of declining revenues and illegal file-sharing on the availability of venture capital is another factor that is rarely if ever considered by many of the so-called reports on the decline in this “lost decade” of the music industry. Why would any entity risk investing hundreds of thousands of dollars in a new artist when there is no perceivable source of revenue from which to gain a return on investment? The answer is that they do not. The impact of the Internet on the creative industry does not stop at the music industry. Other industries that are starting to feel the impact of lost revenues are the movie industry, the television industry, the print publishing industry and the fashion industry. Anywhere that creative endeavors are conducted for profit, the profits are being diminished in one form or another by the impact of P2P file-sharing. My wife has a saying about people who live together when they are not married: “Why buy the cow when you can get the milk for free?” This also applies in the creative industries: people do not generally pay for that which they can get for free.

The chief executive of Kudos, Stephen Garrett, said it best perhaps:

We are in danger of creating a world where nothing appears to have any value at all, and the things that we make…will become scarce or disappearing commodities.

I hope that danger does not become a reality. Being deprived of the talents of, say, a Don Henley or a Bono, simply because we are unwilling to shell out a buck for a mp3, would, in my humble opinion be a real shame.

The Utilitarian Idea of a Monopolistic Right in Intangible Property

By Barry Neil Shrum, Esquire and Nathan Drake

The classical libertarian, Frédéric Bastiat, is quoted as saying:

In the full sense of the word, man is born a proprietor. . . . Faculties are only an extension of the person; and property is nothing but an extension of the faculties. To separate a man from his faculties is to cause him to die; to separate a man from the product of his faculties is likewise to cause him to die.

According to a recent article, entitled The Copyright Monopoly is a Limitation of Property Rights, the author, Rick Falkvinge, writing for TorrentFreak.com, argues that copyright is merely “a limitation of property rights” and is “not a property right.” This conclusion is incorrect and totally without any basis in U.S. history, not to mention world philosophy. Article 1, Section 8, Clause 8 of the United States Constitution directly refutes that by granting Congress the power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Our Forefathers, in this case James Madison and Charles Pinckney, based the idea of intellectual property rights on John Stuart Mill’s utilitarian philosophy. In other words, they were quite willing to violate the property of the few – i.e., the "rights" of individuals to use someone else’s intellectual property however they choose – if doing so would serve to advance the greater good of society as a whole. So, the original drafters of the Constitution did. They did not intend to grant partial ownership to the creator, but rather “exclusive rights” for a work derived from their intellect and creativity. That is to say, the idea that copyright is a monopoly is not the "carefully chosen" "rhetoric from the copyright lobby" of recent vintage as put forth by Falkvinge is completely false: rather, it is an idea that our Forefathers debated and discussed, and carefully chose to bestow upon Authors and Inventors.

Many fail to grasp the idea that the ownership of an intellectual property such as copyright is no different than ownership of real property, such a person owning their own house or piece of land. Both forms of ownership are based on societal laws and give the owner inherent rights to do with the property as they please. Just as the government prohibits individuals from reproducing and distributing copyrighted works, so does the government prohibits individuals from trespassing onto another person’s personal property or stealing their possessions. Are the latter "government-sanctioned private monopolies" that impose "limitations of property rights" on individuals other than the owner? You bettcha! That is, in fact, what a monopoly is: allowing an individual to control something to the exclusion of other competitors.

The significant different between real property (i.e. the chair in Mr. Falkvinge’s analysis), and a copyright (i.e. the DVD in aforesaid analysis), is that the chair is a tangible object, and its essence is easily grasped by our senses. A DVD, on the other hand, is a physical object which embodies, for example, a movie, or intellectual property, that is intangible and more difficult to conceptualize. When purchasing a copyrighted work such as a movie, one has to realize the two forms of property contained within that physical object that is the DVD. Falkvinge draws his analogy between the chair and the DVD as follows:

When I buy a movie, I hand over money and I get the DVD and a receipt…after the money has changed hands, this particular movie in mine.

This statement is factually and legally incorrect. Although the purchaser owns the physical embodiment of the DVD – and in fact may dispose of it any way he or she chooses – the purchaser does not own the intellectual property embodied within the DVD, and may not exercise dominion, or monopoly, over that property. The creator of the work, in fact, owns the intangible property encoded in the DVD, and the creator is within his/her rights, according to section 106 of the United Sates Copyright Code, to reproduce and distribute the work as they please due to the time, creativity and money that produced the work. The owner of the physical object containing the movie has no such rights. Our Constitution is what controls this fact, not just the copyright laws Congress has passed under its authority.

The umbrella of intellectual property, and more specifically Article I, Section 8, Clause 8 of the Constitution, also include the concept of patents. In the article, when Falkvinge compares the limitations copyright places on the purchaser of a DVD to the endless opportunities an ostensibly-expired patent gives the purchaser, he erroneously concludes that " patents are not relevant for this discussion." Oh, but they are. First, one cannot legitimately compare a patent with limitations that have expired to a copyright that currently retains its exclusive rights and limitations. In fact, one author has asserted that it is patents¸not copyrights, that place a greater restriction, or monopoly, on property rights. In Man, Economy, and State, Murray Rothbard concluded:

The patent is incompatible with the free market precisely to the extent that it goes beyond the copyright.… The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The act that they have been applied that way is an historical accident and does not reveal the critical difference between them. The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right. Rothbard’s point is that businesses should not be restricted from independently designing and creating a product using natural laws and principles, even if it turns out to be similar to a patented product, even though our legal structure often operates in that manner.

But the greater point to made here is this: accepting the validity of a patent monopoly requires the acceptance of a copyright monopoly. Both rights are granted by the same Constitutional clause and, a priori, both are relevant to any discussion of government-granted monopolies. Second, simply because an individual purchases the physical embodiment of a chair design does not imply that they acquire full rights to disassemble, analyze, reengineer and distribute the chair commercially. To play with Falkvinge’s analogy, imagine that instead of chair, we are discussion the purchase of a new automobile, let’s say a Ford Mustang. Does one who purchases an automobile by virtue of that sales transaction, gain the right to deconstruct and reverse engineer the product, and start his or her own manufacturing facility to churn out duplicate cars in order to compete with Ford? Why, because there is intellectual property that is embodied in the automobile, just as there exists intellectual property embodied in a DVD, a CD and, yes, even an MP3 or an MP4. Based on the utilitarian teachings of John Stuart Mill, our society believes in rewarding an individual for the “fruits of their labor.” When labor is applied to raw goods by an individual in order to create an original expression of an idea, our society has agreed that this product is the property of the individual that created it. Our Constitution grants the creator of such product a limited monopoly in the exploitation of that creation. This brings me to my final point:

The copyright is, in fact, a “government-sanctioned private monopoly.” The ideology behind the monopolization of intellectual property is to “promote” and incentivize people to create works with the understanding and confidence that the time, energy and financial hardship involved will be fairly compensated. Without any supreme authority protecting the interests and livelihood of creators, the motivation to develop such a work arguably decreases dramatically. The implementation of the monopoly grants the property rights in the creator. As with all property rights, that grant places limitations on the persons who do not own the property.

So, the idea that "monopoly" is an evil concept which the lobbyist have attempted to associate with a "positive word such as ‘property,’" as Falkvinge argues, is historically, philosophically, and logically false. It is rather a concept that has been with us since the Code of Hammurabi first described laws regarding property; it was passed down to us by our Merry Old Ancestors from England; it is a right the participants of the Oklahoma Land Rush had to fight to exercise; and it is these rights – the right to exercise control over one’s intellectual creations – that assure a society in which ownership of property is exercised by the appropriate party by wielding their monopoly against those that would steal it away.

So yes, Mr. Falkvinge, a copyright monopoly is a limitation of property rights. But it is also a means by which the owner can exercise his or her property rights. The limitation is, in fact, on those who would steal their rights. So if this is a limitation on your rights to freely distributed copyrighted product, I’m ok with that and I think the majority of our society is as well.

As the French economist François Quesnay succinctly said: “Without that sense of security which property gives, the land would still be uncultivated.” In other words, if we don’t grant a monopoly to our "cultivators" of ideas, the landscape will be baron.

See also, Cleveland, Paul A., Controversy: Would the Absence of Copyright Laws Significantly Affect the Quality and Quantity of Literary Output? A Response to Julio H. Cole, Journal of Markets & Morality 4, no. 1 (Spring 2001), 120-126

del.icio.us Tags: Falkvinge,TorrentFreak.com,Constitution,Copyright,Copyright Law,Bastiat,John Stuart Mill,Utilitarianism,Monopoly,Property Rights,Intellectual Property

Technorati Tags: Falkvinge,TorrentFreak.com,Constitution,Copyright,Copyright Law,Bastiat,John Stuart Mill,Utilitarianism,Monopoly,Property Rights,Intellectual Property

French Court Finds Google Liable and Refused to Apply Safe Harbor Provisions of The Law of Confidence in the Digital Economy

The search engine giant Google, known for its colorful name and creative endeavors, has been convicted in French Court of infringing the copyrights of four artistic works and now faces fines upwards of $600,000, not including legal costs and attorneys fees. The plaintiffs in the case was made up of four entities who owned the allegedly infringed copyrights: a photographer, the producers of the movie Mondovino, and two other documentary filmmakers responsible for the films Armenian Genocide and the Clearstream Controversy.

According to the plaintiff, "take-down" notices were sent to Google demanding that the copyrighted works be taken off their search engine and its "Google Video" component citing the alleged infringement. Although Google agreed to remove the content from their website, the works remained available, initiating further legal action by the plaintiff and involving the Court of Appeals in Paris. Google argued that monitoring individual internet posts to verify whether specific material appearing in a search result infringing copyright is a tedious, if not impossible, task. More importantly, it argued that such activity is ultimately not their responsibility. Google defended its position by citing Article 6 of the 2004 French act entitled Law of Confidence in the Digital Economy, which

“[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][e]xclude[s] civil and criminal liability on the part of hosts in two cases no knowledge of the disputed content or of its unlawful nature, and withdrawal of such content…these provisions could not impose liability on the host merely because it had not withdrawn information reported by a third party as being unlawful…”

The French protections are very similar to the safe harbor provisions of the U.S. Digital Millennium Copyright Act of 1998. But the Court of Appeals in Paris refused to give Google safe harbor under the law. Instead, in four separate decisions (three rendered on January 14, 2011 and one on February 4), the Court assessed approximately $600,000 in damages for what it called “préjudice moral” and infringement.

Google has appealed the decision with the highest court in France, Cour de Cassation, which acts strictly as an appellate court, and the prospects for Google on appeal look more promising as they begin process. In 2009, the Cour de Cassation ruled that the video hosting website, Dailymotion, was not liable for providing the film “Joyeux Noël” because the provider did not have "explicit knowledge" of the infringed material being on their website, basing its decision on Article 6 of the Law of Confidence in the Digital Economy. According to Article 6, three criteria must be met to invoke knowledge of infringed material, including specifically that “notifications should indicate precisely which content is alleged to be unlawful, its precise location on the website and the reasons why it is unlawful.” Google intends to use this ruling to their favor as they embark on a case that will likely become the first of many.

http://www.ipbrief.net/2011/03/13/the-unimaginable-happened-google-sued-for-copyright-infringement/

http://www.twobirds.com/English/News/Articles/Pages/Paris_CourtofAppeal_Dailymotion_host.Aspx

http://www.juriscom.net/actu/visu.php?ID=949

http://merlin.obs.coe.int/iris/2004/7/article18.en.html

[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Life on the Row, Music Row News, RIAA

Belmont University To Honor Peebles and International Entertainment Buyers Association

Belmont University’s Mike Curb College of Entertainment and Music Business will honor the International Entertainment Buyers Association and one of its founders Harry “Hap” Peebles with the 2011 Robert E. Mulloy Award of Excellence.

Established in memory of program founder Bob Mulloy,the annual Award of Excellence recognizes an individual or organization that has achieved a level of excellence in the music business and entertainment industries with notable service to Belmont University and the Nashville community. Previous recipients include last year’s recipient, Vince Gill, and Donna Hilley, who was the first recipient in 2009.

Harry Peebles, or “Hap” as his friends called him, was one of a founders of both IEBA, originally known as the International Country Music Buyers Association, as well as the Country Music Association. Peebles started booking artists when he was 18 years of age. He served the country industry over 60 years, working with Barbara Mandrell when she was only 11 years old. As Ms. Mandrell says, he was “country when country wasn’t cool!” In the formative days of country music, Hap booked some of the early favorites among country music performers into fairs and festivals, including such well known legends as Tex Ritter, Red Foley, Kitty Wells, Ernest Tubb, the Wilburn Brothers, Roy Acuff and many others. Hap has been nominated for the Country Music Hall of Fame and inducted into the Hall of Fame in Arkansas, Louisiana, Oklahoma, Kansas, Colorado, Nebraska, South Dakota, and North Dakota, as well as named “Fairman of the Year” in several states. Through his involvement with the industry, Hap is credited with giving big breaks to such stars as Johnny Cash, Roy Clark, Loretta Lynn, Carl Perkins, Jerry Lee Lewis, Ray Price and Johnny Horton, just to name a few.

The International Entertainment Buyers Association was formed by Hap and Hubert Long in 1970 as a non-profit trade organization for talent buyers, promoters, agents, managers and artists. Hap and Hubert were two among a growing list of country music promoters – Hap in Wichita, Kansas and Hubert in Texas – that included the likes of Abe Hamza, Don Romeo, George Moffett and Smokey Smith – men who knew one another but rarely communicated their needs or struggles to each other. Peebles and Long felt that the country music talent buyers needed some means of formal communication between the talent buyers, as well as a voice in the fair and festival industry, which didn’t see the potential of adding country music entertainers to the roster of the larger state fairs and therefore relegated country music to the smaller county and city fairs.

“The first meeting I knew anything about was held in Hubert Long’s office in Nashville,” says Wilson Sparks, who managed the Mid-South Fair in Memphis.

We met and talked about an organization for people who buy and sell country music. I guess that was in 1970. I think we talked about it for six months or more before it ever got off the ground.

Don Romeo, whose Omaha-based agency bought a number of country music acts for fairs in the Midwest at the time, remembers that the other country music buyers were concerned then with many of the same problems that are being addressed today:

Hubert Long and Hap . . . were very concerned that the cost of talent was getting out of line, and they wanted a stronger voice in the industry. By having a buyers’ association to get together to discuss these issues with the agents and the acts, they felt we would be able to get a fairer price and would be able to make our concerns known.

Johnny Matson, who worked with Hap at the time IEBA was formed, remembers that Hap’s primary consideration was a little bit of buying power for small producers.

At that time, the big agencies had the buying power, and the smaller agencies didn’t have the respect that we have now. As far as fairs were concerned, we usually got Sundays; the big agencies got the choice dates. There would be one night where country music was featured. I think that a few fellows who booked fairs and one-nighters saw a need for an organization where they could share ideas about what was going on within the country music industry.

Smokey Smith, another talent buyer based in Des Moines, recalled:

I think Hap’s idea was that we needed an organization of the people who were buying country music who could go to the managers and talent agencies and say, “Look, we need a better price on this talent—what if two or three of us go together and offer you a string of dates, could we get a lower price?”

Long died an untimely death shortly after ICMBA was formed, and it was Hap that took up the slack as a major force in its formation. He served as president of ICMBA for six years and was chairman of the board for the organization for nearly twenty years. By the time it celebrated its 10th Anniversary, the organization had grown from its humble beginning to include almost 300 members. Peeples dies in 1993 at the age of 80. In 1995, IEBA celebrated its 25th Anniversary with honors as Tennnessee Governor Don Sundquist commerated the occasion by proclaiming June 2-5, 1995 as “International Entertainment Buyers Association Week.”

Tiffany Davis took over the helm as Executive Director in 2008. Commenting on the Mulloy Award of Excellence, Davis said:

IEBA is very proud to be recognized by Belmont. Our founder, Harry Peebles, left a great legacy in the talent buying community, inspiring many leaders like Don Romeo, George Moffett and JP Williams. IEBA is thrilled to help students through these scholarships while also honoring four great pioneers of the entertainment industry.

IEBA established the IEBA Scholarship Endowments Fund in 1991 in honor of Peeples. Since IEBA has established three additional endowed scholarships for Belmont students in honor of Don Romeo, J.P. Williams, and George Moffett. Collectively the endowments represent over $300,000 in investments.

IEBA celebrated it’s 40th anniversary in 2010. Currently IEBA has well over 800 members. The organization’s annual conference, attended last year by well over 500 people, stands alone in the entertainment industry by showcasing the most diverse entertainment options available while striving to be the go-to organization for the entertainment community by offering continuing education and networking opportunities to its members.

The presentation will take place at the Mike Curb College of Music Business’ Best of the Best showcase, March 26, 2011, 7 p.m., at Belmont’s Curb Event Center.

Music Industry, Music Row News, RIAA

New Country Radio Survey Data Released by Coleman Insights

CRS 2011 Research Study Finds State of Country Music Healthy, New Media Engagement Growing
Country Radio still king for consumers, new music discovery

The results of the CRB Country radio research study presented recently at Country Radio Seminar 2011 in Nashville. The comprehensive study was sponsored through a partnership between Country Radio Broadcasters, Inc. and the Country Music Association and was conducted by North Carolina-based media research firm Coleman Insights. You can review the actual study here.

Coleman Insights polled 5,000 country radio listeners, or “partisans,” regarding their consumption habits and the state of Country Music in general. The list of partisans was obtained from twelve country music stations in in Atlanta, Austin, Baltimore, Charlotte, Minneapolis, Philadelphia, Phoenix, Portland, Salt Lake City, Seattle, Tampa and Washington, D.C. In addition, 171 radio industry professionals were also polled to gauge their insight and perceptions about the country format versus those derived fro the consumer survey. The study surveyed a sample of 12- to 64-year-old P1 Country radio listeners across the U.S. and their usage of new media devices, including social media websites, smartphone applications and radio station and artist websites. Participants in the study were polled between Feb. 7-18, 2011 via email and online questionnaires.

The “big picture” findings from the study, Coleman Insights, concluded that consumers perceived the overall state of country music as significantly more positive than the professionals in the industry did. Additionally, radio is the medium which makes consumers feel “most connected” to Country Music and remains the most consistent means of new music discovery for them. New media usage – use of Internet streaming and social networking for example – continues to increase among all age demographics polled, showing growth patterns consistent with those in other formats. Some of the key findings reported in the study were as follows:

The country music radio partisans polled are very satisfied with what they hear on their favorite country stations and are happier than ever with the choices available for country listening.
Their listening momentum remains very strong, as 83% of those polled perceive they are “listening more” to country radio now as compared to a year ago.
Those polled perceive that “country music is better” (51%), that they are “listening more to radio” in general (45%), that country radio is “more family-friendly” (33%) and that their “country station has gotten better” (32%). The overwhelming majority of those polled (50%) believe that the “country music coming out today” is better than it was a few years ago by a five-to-one margin over those who think today’s country music “is worse” (10%).
The top ten most popular artists of those evaluated by consumers are Brad Paisley, Tim McGraw, Lady Antebellum, Kenny Chesney, Zac Brown Band, George Strait, Jason Aldean, Carrie Underwood, Alan Jackson and Blake Shelton. Interestingly, Taylor Swift ranks in the bottom tier of the most popular artists, suggesting her large fan base lies predominantly outside the Country radio P1 audience.

Contrary to these findings among consumers, the industry professionals polled believed the following:

that more than half of country music radio patrons are listening less to country radio than a year ago due to increased media choices and lack of time;
that today’s country music has achieved equilibrium and is no better or worse than it was a couple of years ago; and
that radio consumers are only moderately satisfied with the choices they have for country radio.

Significant data reported by the study concerned the use by country radio listeners of new technology and the wide array of options available to the consumer these days, which leads to the fragmentation of the target audience. A brief sampling of the statistics from the polled consumers indicates:

Three-quarters own an Internet-connected PC or Mac;
Two-thirds own a game console;
Half own an iPod or mp3 player;
Nearly half own a smartphone;
Nearly two-thirds have watched country music videos on YouTube;
Half are using Facebook;
More than one-third have used Pandora streaming Internet radio.

In this regard, I found the following conclusion in the report to be very informative:

The industry has pretty accurate perceptions of the adoption and usage of new media and technology by [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][country music radio patrons], with a few exceptions. One noteworthy exception is how the industry overestimates the importance of radio relative to other devices. The industry believes [country music radio patrons], , if forced to choose only one electronic or entertainment device, would choose AM/FM radio as the most important device. In fact, radio ranks a distant third behind Internet-connected portable computers and smartphones. This underscores how critical it is for Country radio and Country music to have a significant Internet and mobile media presence.

Another misconception by the industry professionals is that the overwhelming majority of country music radio patrons wake up to a clock radio: in reality, country music radio patrons are just as likely to wake up to a smartphone, suggesting radio is already engaged in a battle for the nightstand. This has tremendous implications for morning radio listening and immediately suggests an opportunity for country radio to possibly preserve its wake-up utility by adapting to this phenomenon and creating wake-up apps that allow listeners to continue waking up to their favorite country stations through their smartphones. The study further reveals how the content country radio stations and country music artists post on Facebook and share on their websites is somewhat out of synch with the needs and desires of country music radio patrons . This suggests the industry is missing an opportunity and not fully capitalizing on the potential of these tools.

The industry also has a few misperceptions about Pandora streaming Internet radio as well. More than one-third of country music radio patrons have used Pandora and they have been using it for a longer period of time and more frequently than the industry believes. A key finding is that country music radio patrons already using Pandora say they are highly “likely” to use it in the car as it becomes available there. When Pandora exists side-by-side with AM/FM radio on the dashboard, current Pandora users are almost equally as likely to prefer Pandora as AM/FM radio, with 25% undecided. This forecasts a looming challenge to country radio from Pandora for in-car listening, a place that has long been radio’s almost-exclusive domain.

Lastly, the industry greatly underestimates interest among country music radio patrons in apps that would allow them to listen to Country radio stations on their smartphones or tablet computers (iPad, etc.).

The study was nonetheless seen as encouraging news for country radio and the country music industry. CRB Board member and Chair of the CMA Research Committee, Rusty Walker, said

I was extremely excited about the research data presented at CRS this year. As a result of the study’s innovative approach and its thorough questionnaire process, the findings by Coleman Insights will help all facets of the Country Music industry in better serving its customers, listeners and fans.

Perhaps the most encouraging aspect the study revealed was that, despite the explosion of new media and new technology, country radio is overwhelmingly perceived as the medium that most “connects” consumers to country music by its fans.

Coleman Insights President and COO Warren Kurtzman

This year’s study confirmed that the overall perception of Country Music by its core consumers was extremely positive, and the general health of Country radio is still strong. Listeners are continuing to find new means of consuming Country Music through emerging technologies, but this study seems to indicate they are not undermining Country radio’s connection with its listeners.

Findings from the study were presented March 3 at the CRB research panel during CRS 2011. Coleman Insights VPs Chris Ackerman and Sam Milkman presented the data, and CMA Market Research Director Greg Fuson announced the study as a piece of CMA’s continuing research to help identify and define the Country Music consumer.

For more information about the 2011 CRB Country Radio P1 listener research study, visit www.CRB.org or www.ColemanInsights.com[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Immigration and Counterfeit Enforcement Agency Brings Criminal Charges against Owner of ChannelSurfing.Net

By Barry Neil Shrum & Nathan Drake

In November 2010, the Federal Immigration and Counterfeit Enforcement agency (“ICE”) recently seized 82 websites and shut them down on the grounds that they were committing criminal copyright infringement. One of these websites has recently become the spotlight of attention:. Brain McCarthy, the owner and operator of channelsurfing.net, has been arrested by ICE and charged with providing free streaming content to NFL, NHL and NBA sporting events. According to the ICE, McCarthy accumulated approximately $90,000 from advertisers on his website, and has received over 1.3 million hits since being obtained last month, depicting the significance of the website.

ICE acts as the principle investigative arm of the United States Department of Homeland Security and is currently the second largest investigative arm of the federal government. What makes ICE’s action unusual is that McCarthy is charged with criminal copyright infringement, since most other cases involving copyright infringements are brought against defendants in civil court in search of damages. If charged as a criminal, McCarthy could serve up to five years in prison and pay substantial monetary fines.

These actions by ICE create a certain level of perplexity in the eyes of the public. In the eyes of many, including the editors of TechDirt, ICE’s actions are not justificed since, at the time of the channelsurfing.net seizure, the website ostensibly did not “possess” any copyrighted material, but rather only provided links to other website/servers where the infringing material resides. Is the criminal charge levied against McCarthy warranted if he was merely acting as a conduit of infringing information?

Perhaps the answer lies in the criteria constituting criminal copyright infringement in United States Code Title 17 U.S.C. § 506(a) and 18 U.S.C. § 2319. The code states that the prosecutor must show the following elements to prove criminal infringement:

(1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain.

To apply the analysis, it’s necessary to understand, on a technical level, what is happening on the McCarthy’s website. He is providing a “link,” i.e., a form of hypertext markup language, or HTML, that, when clicks, directly a stream of video to the user within the structure of McCarthy’s website. So the question become whether the criteria has been met. Let’s examine it:

Is there a valid copyright? Yes. This is easy. The NFL, NHL, NBA, etc. all possess valid copyrights in their broadcasts.

For purposes of financial gain. No doubt. Here, McCarthy obviously profits from the availability of the infringing material on his website, regardless of where the material is stored.

Wilfully infringed by the Defendant. Here is perhaps where some debate might occur as to McCarthy. Was his intention in placing the links on the site to infringe the copyright owner’s rights? If so, was it wilful?

One case that has examined the issue of whether embedded HTML code can serve as the basis for copyright infringement is Perfect 10 v. Google decided by the 9^th Circuit. In that case,, Google was accused of civil copyright infringement for using a database of “borrowed” photographic images and making them available on their website when a user performs a search. The Citizen Media Law Project at Harvard University explained the ruling on this case as follows:

“The court went on to conclude that HTML instructions do not themselves cause infringing images to appear on a user’s computer screen because the HTML instructions merely convey an address to the user’s browser, which itself must then interact with the server that stores the infringing image. Accordingly, the mere provision of HTML instructions, in the view of the 9th Circuit, does not create a basis for direct copyright infringement liability.”

Several things should be noted about the 9th Circuit’s opinion. First, this case involved civil liability for copyright infringement, not criminal. The elements for civil copyright infringement are very different than those for criminal infringement. Secondly, the 9^th circuit court is known as a radical circuit and many of its decisions are on the fringe. It’s rulings certainly do not hold the clout of the U.S. Supreme Court. Nonetheless, the decision, though it will likely be challenged, provides a new and thought provoking perspective.

So, bottom line, what do we think about McCarthy? In my opinion, the 9th Circuit is off base in regard to providing HTML code that “merely convey[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][s] an address to the user’s browser” which it must then “interact” with to obtain the infringing image, which is stored on a different story. What the court complete overlooks is that this is the very essence of vicarious joint & several liability! It’s a well-established principle of copyright law that everyone in the chain of distribution is jointly and severally liable for the actions of the primary infringer. Taking this theory out of the physical realm and putting it into the digital realm should not change its application. In my humble opinion, Mr. McCarthy likely knew what he was doing. He is providing users with access to multiple portals that provide them with streams of illegally obtained intellectual property, much as a vendor on the streets of New York city provides pedestrians access to counterfeited Rolexes! The fact that he does not “warehouse” the goods, in either case, does not change the fact that he is facilitating the infringement.

Arguably no other circumstances in the history of law has caused so many problems of application as the invention and development of the Internet. This virtual world as wonderful a resource as it is, allows for greater efficiency and anonymity for infringers than ever thought possible, serving as a double-edged sword for this generation. While some may view the efforts of those pursuing copyright infringement via the Internet futile – in fact many consider copyright itself unnecessary as a result of the Internet – these enforcement efforts are nonetheless important and essential in maintaining the rights set forth by our forefathers over a century ago: rights of monopoly balanced with limitations and public access. If we as a society do not honor these goals, it is probable that we will be faced with a less creative society.

http://www.techdirt.com/articles/20110104/12324012513/did-homeland-security-make-up-non-existent-criminal-contributory-infringement-rule-seizing-domain-names.shtml

http://paidcontent.org/article/419-feds-campaign-against-pirate-websites-leads-to-an-arrest/

http://www.techdirt.com/articles/20110303/16584013356/ice-arrests-operator-seized-domain-charges-him-with-criminal-copyright-infringement.shtml

http://www.ice.gov/about/overview/

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01847.htm[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

98% of all Statistics are Made Up on the Spot! Fact is, copyright infringement DOES kill jobs.

Mark Twain had a lot to say about statistics, ranking them as the highest of all lies: “There are three kinds of lies: lies, damned lies, and statistics. Twain is also attributed with the more insinuated saying that “statistics are like ladies of the evening, once you get them down, you do anything with them!” It’s been quite awhile since I’ve seen a manipulation of statistics that illustrates Twain’s philosophy about them more than what is found in the article posted by self-styled “political evangelist” and anti-copyright activist, Rick Falkvinge, this week entitled Kill Copyright, Create Jobs. Absent three very slick and attractive graphics, the only “facts” that Falkvi

nge offers in support of this conclusion is statistics which, as far as I can tell, are made up!

In an effort to defeat the claims of the United Kingdom’s “copyright industry” that 1.2 million jobs will be lost by 2015 if stricter enforcement of copyright laws is not enacted, Falkvinge begins with the exaggerated conclusion that “for every job lost (or killed) in the copyright industry due to nonenforcement of copyright, 11.8 jobs are created in electronics wholesale, electronics manufacturing, IT, or telecom industries — or even the copyright-inhibited part of the creative industries.”

Falkvinge reaches this absurd conclusion through a somersault of logic involving segregating the “creative industries” into various categories of groups subdivided into “copyright-dependent” and “copyright-inhibited” sectors. Of course, these phrases are never precisely defined but, reading between the lines, the reader can gather that the latter sector includes industries “fueled by a lack of copyright monopoly enforcement,” while the former we must assume includes some form of enforcement. Once he groups the various creative industries according to this loosely defined structure, he asserts that “the contribution of the copyright-inhibited industries outweigh the copyright-dependent industries by a factor of 11.8,” and then draws the leap of faith that when a copyright-dependent job is lost, a copyright-inhibited job is created. He then forms this general conclusion: “Prevent copyright enforcement, or weaken or kill copyright, and create jobs. Lots more of them.” Wow! Please, Obama, take note of this staggering feat of intellectual prowess!

There are so many errors in this article, it’s hard to begin, and I don’t intend to address each one. But as you start to examine the sectors of industry that Falkvinge places into these divisions, you can easily see where his analysis falls apart. Seriously, I don’t think it’s intended so much as analysis as it is rhetoric. Nonetheless, let’s look at some examples.

In the first instance, Falkvinge erroneously relies on the conclusions of Peter Higgs in Beyond the Creative Industries for his foundational argument that the “creative industries” of the U.K. only account for 7% of its GDP, which he divid

Creative-Industries-By-Copyright-Dependency

es into three categories: copyright-dependent, copyright-inhibited and copyright-agnostic. I say he relies on this statistic “erroneously” because the 7% figure contained in Higgs’ report is based on what Higgs calls the “creative core” of the industry, not the entire industry. Higgs’ defines the creative core as the “pre-creative and creative stages of the value chain” (p. 27). This approach, Higgs establishes, only focuses on those involved in the initial stages of creation, i.e., the musicians, the dancers, the producers, etc (p. 28). Thus, by default, the analysis does not factor in the post-creation employment of the creative industry and, thus, cannot be used in support of Falkvinge’s overall asssertion that on 7% of the GDP of the United Kingdom is based on the creative industries.

Second, in one sweeping yet unexplained fell swoop, Falkvinge places the entire advertising and marketing industry in the “copyright-inhibited” category. Last time I checked, the advertising and marketing industry relied in large part on the creation of intellectual property, much of which is copyrighted work which relies on enforcement. In another breathe, again without laying any factual foundation, he states that only 25% of the software, electronic publishing, games, film, television, radio and photography industries are “copyright-dependent.” Twenty five percent? Seriously? Then he “estimates” than only 50% of the music and performing arts sectors of the creative industry are dependent on copyright protection. Again, really?

With regard to his category of “architecture, visual arts and design,” Falkvinge’s “analysis” is totally off the mark. First, again, he simply asserts that 100% of the architecture industry is copyright-inhibited, meaning it does not rely on copyright protection for enforcement. He doesn’t define whether he is referring to architecture as a visual art or whether he is referring to the more intellectual and abstract protection of the actual structure which the U.S. Congress protected in 1996 with the Architectural Works Copyright Protection Act. One can only assume that Falkvinge is unaware that the U.S. and most other Berne Convention signatory countries protect such works, since he groups architecture with the visual arts.

Secondly, Falkvinge lumps all of the “visual arts and design” industry into “fashion design” and then asserts that it is “copyright agnostic,” since fashion design is not entitled to copyright protection. Ignoring the fact that there

Copyright-Dependent-Vs-Inhibited-Industries-GDP

are many other arts to be considered in the visual arts and design sector of a country’s industries, let me just address the last assertion about fashion design. There are several nations that actual do offer copyright protection for fashion design, namely the European Union, and France individually, and Japan, just to point out a few. The U.S. currently has legislation pending that would follow in the footsteps of these country and protect U.S. fashion designers whose designs are pirated as soon as they are released. (See this post on Law on the Row regarding the pending legislation).

As Falkvinge draws to a long and painful conclusion, he states that U.K’s “monopolized entertainment [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][industries’]” claim that they will lose 1.2 million in jobs by the year 2015 is “deceptive, dishonest and bordering on fraudulent,” which he uses to link to another self-aggrandizing article in which he claims that we as a culture are creating now more than ever, that copyright monopolies are an obstacle, and the copyright abolishment would only intensify this effect. All I can say to Falkvinge’s claim is bull$^!+. Isn’t that something akin to the pot calling the kettle black? Is it really deceptive to say that most of my songwriting clients, the people who write the music, are struggling to feed themselves and have to take full time retail employment to make ends meet? Is is dishonest to say that those same songwriters do not create as much music as they did before they were forced to work 10-12 hours a day to support their families? And how can you deny the decline in sales of recorded music? How can you deny the falling profits of the world’s entertainment conglomerates? I certainly don’t pretend to know about the music industry of the U.K., but I do know that the local economy in Music City U.S.A., Nashville, Tennessee has suffered dramatically as a direct result of illegal downloading of copyrighted works. I certainly know that this has a trickle down effect on all sectors of the music industry here, including my own practice! If any of these claims are fradulent, then call me a fraud.

Long before Falkvinge began spinning his illogical analyses, a company of men including Jefferson, Madison and Pinkney and other great thinkers of their day dealt with the issue we are dealing with – should creative ideas be entitled to protection as individual property? These men debate natural law versus utilitarianism, and ultimately derived what is arguably a very workable system of protecting intellectual properties. The U.S. system is based on theories like those of Thomas Hobbes and John Locke, who believed that we should “give to every man his own,” and that man acquired the ownership of property by exerting labor and converting nature – in this case ideas – into something that benefits society. In fact, Locke believed that because a work created by an individual enriched society in general, and would theoretically continue to do so in the future, the author should have the right to be compensated as long as that benefit to society continued. But, our Forefathers also wisely saw that in order to create, it is helpful to have a thriving public domain, so they placed certain limitations on these rights, namely granting the monopoly for “limited time.” The “monopoly” of copyright protection – Falkvinge derisively refers to it as the “copyright monopoly” as if it’s a bad thing – is merely a reflection of these ideas. If we believe that one should benefit from his or her own creation, his or her own expression of an original idea, then laws and rules are the only way to enforce that in a developed society. Because of the wisdom of our Forefathers, we have that in Article I, Section 8, Clause 8 of the U.S. Constitution. For my money, the logic of Locke, Hobbes, Jefferson and Madison surpasses the diatribe of Falkvinge at least by a factor of 11.8 to 1!

So, in summary, I am quite certain that Falkvinge, if he even takes note of my existence, would categorize me as just another one of the “lawyer who advocate maximization of the copyright monopoly.” He would likely also allege that my claims are misleading if not bordering on fraudulent. Regardless, I think that it is evident that Falkvinge’s assertion that for every 1 job lost to copyright infringement, 12 more will pop up to replace them is unfounded and, frankly, completely manufactured.