Archives For technology

So central is the idea of the freedom of speech, that the Bill of Rights places it first and foremost as the primary tenet of a democratic republic.  Specifically, “Congress shall make no law…abridging the freedom of speech, or of the press[.]”  Further, this potent protection providing freedom of speech presumptively applies to all forms of artistic expression: words, images, sounds, movements and more.  In an era where anyone with an Internet connection and a thought can be a writer/publisher, the importance of such a right has perhaps never felt more real to “We the people.”

In addition to this freedom, the U.S. Constitution provides a means of incentivising our creative authorship by protecting it for a limited time from misappropriation.  Specifically, Article 1, Section 8, Clause 8 of the U.S. Constitution, affectionately known as the Copyright Clause, reads: “Congress shall have Power to…[secure] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…[.]”  By granting authors the right to prevent infringers from profiting off of unauthorized copies of their works, Congress provided a means by which creators of copyrightable content could make a living through the ability to monopolize their content for a set period of time.

Therein lies the contradiction.  Continue Reading…

After 35 years as a recording artist John Cougar Mellencamp felt compelled to reflect on today’s art.

People remember when music existed as an art that motivated social movements.  Artists and their music flourished in back alleys, taverns and barns until, in some cases, a popular groundswell propelled it far and wide. These days, that possibility no longer seems to exist.[1]

Distinctions can easily be drawn between calls to action like Bob Marley’s “Get Up, Stand Up” and calls to complacency like John Mayer’s “Waiting On The World To Change.”  As Mellencamp points out, music is in a sad state.  Furthermore Barlow suggests “[c]reative people may have to renew their acquaintance with humility.”[2] Artists should write songs because they need to, not because they fit in shrink-wrap and generate revenue.

Pitchfork, an uber-respected music-criticism site, playfully rated “Music“ a 6.8 out of 10.[3] According to the review, authored by Pitchfork editor in chief Ryan Schreiber, the popular medium that predates the written word shows promise but nonetheless “leaves the listener wanting more.”[4] While obviously created in jest, there certainly exists some truth behind this point.  Perhaps this young generation of technology embracing pirates are nothing more than the product of the vacuous state of today’s content.  If the record industry provided goods that had intangible social value, as music purportedly used to have, their concerns of declining perceived value would be instantly alleviated. Continue Reading…

Hundreds of startup companies came to the marketplace each year.  The biggest challenge these brave startups faced is to compete with “free” illegal alternatives. As the sellers of cable television have known for thirty years, and the sellers of bottled water for much more than that, there is nothing impossible at all about “competing with free.”[1] One company has managed to thrive against “free” by simply being more user friendly than its illegal competition.  As experts predicted when Apple launched the Music Store, it could beat “free” by being easier than free is.[2]

A different approach to competing with free was successful for Indie911.  Indie911’s CEO, Justin Goldberg, believes traditional gatekeepers were an inefficient way of allowing music to flow to the public and sought to create a place where the public could find artists that were slipping through the cracks.[3] In his tenure as an A&R person, songwriter, and employee of Sony Music Publishing, Mr. Goldberg took issue with the fact that less than 1% of the music out there would ever be heard.[4] Continue Reading…

Litigation Against Technology

While record label’s efforts in the marketplace have largely failed, their aggressive litigation strategies have won some technology-crushing verdicts.  Ever since the landmark case Sony Corp. of Am. v Universal City Studios, Inc.[1] the content and technology industries have frequently engaged in courtroom battles.  Three of the most influential decisions of the last decade will be summarized here.

First, UMG Recordings, Inc., v MP3.com, Inc.[2] in 2000, was centered on a website, MP3.com, which permitted users to access a huge database of music over the Internet after demonstrating independent ownership of an original copy of that recording.  The district court found MP3.com directly liable for copyright infringement because it failing to obtain authorization from plaintiffs to copy and distribute their copyrighted works, a violation of plaintiffs’ exclusive rights under §106 of the Copyright Act.[3] The court also rejected MP3.com’s Fair Use defense.  The court found that the purpose and character of MP3.com’s use of the plaintiff’s work was commercial and non-transformative; the nature of the work used was core protected content; the work was copied and distributed in its entirety; and finally, MP3.com’s actions would have an adverse market affect on the plaintiff’s music.[4]

Second, A&M Records v Napster, Inc.[5] in 2001, brought Napster, the principal architect of the online file-sharing, to its knees under the theory of contributory liability.  Continue Reading…