Moldover gets it in a way big music never has. He’ll sell you a download, and to get you to buy the physical CD, there’s  something very unique in the packaging that  you can’t download.

Throughout history, technology introduced to stop criminal behavior has only succeeded in harassing the law abiding and failed to stop the criminal. The RIAA seems to have discovered that DRM may have actually encouraged casual piracy, but there are still plenty in big media who disagree.

Jonathan Lamy, chief spokesperson for the RIAA declared DRM dead, when he was asked about the RIAA’s view on DRM for an upcoming SCMagazine article. “DRM is dead, isn’t it?” Lamy said, referring to the DRM-less iTunes store and other online outfits that now offer music without restrictions.

When the most vocal forefighters of DRM say so, it must be for real. Although this is the first time that the RIAA have actually said on record that DRM is dead, other players in the music industry have seen the light before them. Most notable IFPI, who said earlier this year that stripping DRM would “significantly boost download sales.” (Torrentfreak)

If we really want to resolve the problem, and return to the seven year copyright might be the best fix. As a writer photographer and musician, the thought terrifies me, but it could be the best final solution to restoring creativity as the primary driver for all of the arts. After all, the vast majority of ownership of 7+ year old copyrighted material seems to be in the hands of people other than those who created it.

The lawyers at the RIAA are having a field day with seemingly any business the could enable the sharing of files. I have no doubt that plenty of illicit files are shared on the Usenet. It’s also true that most burglar’s access their victims via public streets.  No one is suggesting we should rip up the streets to stop burglaries. For now, the low hanging fruit for litigation seems to be enterprises who were foolish enough to advertise that illicit files are shared on their systems: IE Pirate Bay and now Usenet.com.

In a decision that hands the RIAA an overwhelming victory, U.S. District Judge Harold Baer of the Southern District of New York ruled in favor of the music industry on all its main theories: that Usenet.com is guilty of direct, contributory, and vicarious infringement. In addition, and perhaps most important for future cases, Baer said that Usenet.com can’t claim protection under the Sony Betamax decision. That ruling says companies can’t be held liable for contributory infringement if the device they create is “capable of significant non-infringing uses.” (Cnet)

As we have mentioned in earlier posts, there is no  major US ISP that offers usenet service with their access accounts - from fear of lawsuit. As long as the lawyering sticks to those who openly invite using thier services to break the law, we’re OK. Unfortunately, I think we’ve only seen the tip of the iceberg. This will certainly send a chillng effect through the industry, and we can expect smaller usenet providers who have done nothing wrong to close up shop even if the RIAA lawyers don’t attack them next. Actually, with it’s lawyers working the current laws that were authored by big media, it’s not a question of if but when.

We have been very vocal about the music labels. Especially the tactics of their RIAA industry team. But there is a glimmer that some of the labels are starting to understand that they can’t fill an inside straight holding 2 of diamonds and the ace of spades. –

Although eMusic is a great service—for a flat monthly fee, you get a set number of downloads per month of DRM-free music tracks—it’s about to get better. Or maybe worse, depending on the breadth of your musical tastes. Today eMusic will announce that Sony is adding its back catalog of songs to eMusic’s library. The bad news is that eMusic also plans to slightly raise prices and/or drop the number of downloads per month. Even if it works out to between 50-60 cents per track, though, that’s still far less than iTunes Music Store or Amazon, and probably the cheapest way to grab music from Sony artists without resorting to piracy.

Even at the new pricing that eMusic is proposing the cost per track hovers around .50¢ per. Sony adding their back catalog to the mix is just icing on the cake. Which is kudos to Sony. Hopefully this will be the trend that continues with the other labels as well. We can all back out of the DRM/RIAA debacle in a graceful manner and act like adults.

iTunes take note. Your pricing is out of whack.

LInky.

There’s now another interview with McBride at the Future of Music site where he talks more about his vision of a music future where people effectively pay not for the music, but for the convenience of a “music valet” that does a better job organizing and finding the music you want when you want it. I’m still not convinced this is how things eventually work out, but it’s certainly worth thinking about.

However, there are few statements McBride makes that are worth highlighting. First are two statements I agree with, and then one I don’t:

People have always been sharing music. Why would I want to stop them? Why would I want to tell them what to do? The way to win was to get them to support my artists, not to force them to do it a certain way. I know I wouldn’t like anyone telling me that.

This is a huge point that is so often missed by those in the industry who are focused on “protecting” and “control” rather than recognizing how people want to interact with musicians. The thing that I find most ridiculous from those complaining about file sharing is that they always make some statement along the lines of, “people who are sharing my files aren’t fans, because real fans spend money.” Of course, if that’s true, what’s the problem? The people who aren’t fans aren’t paying and (based on that statement) the real fans will pay. So, there’s no problem at all…

Songs are not copyright. Songs are emotions.

Indeed. And that’s the point.

That insight is from Terry McBride, the CEO of Nettwerk Music. The man is right on in those two statements. What McBride recognizes is that music in many ways is a social sharing event. Only with tools like the iPod has music become a insular cocoon. From the time of recorded history most music was delivered around the campfire. I remember in my youth when someone in the circle bought a new 45 (yes I am THAT old) we all gathered around to listen to it.

Since that is the metaphor, efforts to induce that means not one buyer for a tune for possibly many. I could imagine a 50% resale rate is possible in such endeavors. Beats what the old school is doing with the RIAA.

HT: TechDirt.

Its rare you see a lawyer withdraw from a case. Unless of course it is one who is unlikely to get paid for services rendered. Which seems to be the case in the only RIAA case to go to trial —

Brian Toder told (.pdf) U.S. District Judge Michael Davis of Minnesota that he has billed nearly $130,000 of his own money on the first trial “that will never be recovered, coupled with the likelihood that a similar, additional amount will be incurred if ordered to continue representation of defendant.”
Jammie Thomas testifying during her October, 2007 trial

A retrial is set for June 15. Judge Davis has not ruled on whether to release Toder from representation. Both sides could not agree this week to settle the case without a retrial.

“There’s no way another lawyer could try this case by June 15,” Toder said in a telephone interview. The RIAA does not object to Toder’s removal, but opposes a continuance.

The motion to withdraw may indicate lack of confidence that Thomas will prevail in the new trial. Winners of civil suits are often entitled to attorneys fees.

Quite unfortunate of course. Personally Thomas did it. But the severity of the fine does not fit the magnitude of the crime she committed. Even if she shared 10 songs with a 1000 people, at iTunes typical $1.99 rate that is a $20,000 fine NOT almost a quarter of a million. Somewhere the Constitution mentions ‘cruel and unusual’ and I think it applies here.

Linky.

There has been a drumbeat over the last couple of years than much content, years old has value if if not many sales. That the ‘longtail’ in the sales cycle have more to offer as a business model than what is sold in the first two years. Last year some economists tested that theory and found it did not hold and that most sales occurred at the ‘head’. -

This really isn’t the upbeat fairy tale message Anderson has spent four years selling on the conference circuit. However, as he took his “message” to Davos and beyond, the Long Tail has gradually developed into a ‘Policy Based Evidence Making’. Having convinced himself of the truth of his hypothesis by looking at one US music service, Anderson widened his search for facts that might fit his theory. But he didn’t examine the numbers closely or critically enough, say the economists.

“You need to consider much more than just some flimsy volume-based Rhapsody data if you’re going to say the world’s changed,” says Page. “For instance, understanding value both in terms of retail spend and then marginal profitability to the artist and songwriter would have been a logical extension”

In another surprise, 80 per cent of the revenue came from 52,000 songs. What’s eye-catching about the number? Well, the typical inventory of a conventional high street record store was around 4,000 CDs. Or … around 52,000 songs.

But that has import to the music business —

“If sellers sell it, it might never be bought. But if the swappers offer it, at least one person will likely take it,” the authors point out.

Polls suggest many music fans would gladly pay for such a service. The University of Hertfordshire last year found over 80 per cent interested in voluntarily paying for services which offered exchanges of sound recordings, and a survey of music fans in Sweden - home of The Pirate Bay - found that over 86 per cent would cough up: over half the sample would pay up to £12 a month.

The world’s first voluntary P2P service was due this spring from UK cable giant Virgin, but the ISP suspended the initiative late in the day due to record company nervousness.

So what’s the uptake? More on Is the Longtail Vapors?

Nearly two dozen public interest groups, trade pacts and library groups urged President Barack Obama on Thursday to quit filling his administration with insiders plucked from the Recording Industry Association of America.

The demands came a week after the Justice Department, fresh with two RIAA attorneys in its No. 2 and No. 3 positions, announced the administration’s support of $150,000 in damages for each music track purloined on a peer-to-peer file sharing program. The administration, moreover, has just declared as classified the inner workings of worldwide intellectual property trade pact. And Hollywood is urging Obama to embrace internet filtering as the content industry seeks to cut internet access to repeat copyright violators.

Still, Obama has yet to fill the all-important role of copyright czar, a new cabinet-level position approved by Congress late last year. Other unfilled vacancies dealing with intellectual property rest in the Patent and Trademark Office, the United States Trade Representative and the State Department.

Groups such as Public Knowledge, the Electronic Frontier Foundation, the Consumer Electronics Association, the Wikimedia Foundation and, among others, the American Library Association, are demanding Obama to look outside the content industry when filling up his administration.

Oh yeah — here.

Linky.

It’s funny, but also rather sad—not because of the birds and shotguns, but because the meeting was part of the hugely expensive Secure Digital Music Initiative that the labels launched in 1998 to slap a standard DRM scheme onto music. The big meetings took place all over the world (and at places like the Villa Castelletti, which are… not cheap), and they finally produced a watermarking scheme that was “uncrackable.” The group started a contest and invited teams to hack SDMI; computer science professor Ed Felten soon defeated four separate watermarking schemes, was subsequently threatened by SDMI over publication of the results, sued them back, and the whole thing was eventually dropped. So was SDMI.

Had the music industry treated digital music sharing as it treated the CD—not obsessing over copy protection, embracing a new format, making money by the boatload—it might still be riding high. But the industry didn’t do so, and, as Knopper chronicles, it has paid the price.

I have already placed an order for my copy. This sounds like a read that ought to be on the DOJ’s desk. And here is a bit more –

The industry learned to mint hits (and therefore money) in the 60s and 70s, but it was the CD that made record companies into global behemoths. Knopper takes half his book explaining the CD boom, only coming to Napster 113 pages into his tale. That’s because, in his telling of the story, the downfall of the labels in the age of digital distribution only makes sense when looking at the last major format shift and the huge profits it brought the industry.

If you’ve been watching Battlestar Galactica recently—or reading your Nietzsche—you’ll be familiar with theories about the cyclical nature of history, and that’s how Knopper sets up his story. When the CD was first introduced, plenty of record company execs hated it. One says, even now, “I thought [the engineers who designed it] could have done something to stop piracy.”

Looking back at the CD era, though, it’s clear that those little plastic discs were a goldmine. People loved the new format, many repurchased their collections on CD, and prices for recorded music went way up. How did the industry respond to this windfall? By screwing the artists.

We have chronicled in this blog the sorry state of what remains of the record industry. It operates now more like a capo from southern Sicily than corporations. Slicing up artists, producers, distributors and customers all along the way. It did not have to be that way 30 years ago and does not need to be now. But that is the way it is.

Read the whole article at Ars Technica. And get the book!

We had previously observed that the folks populating Justice were industry hacks for the recording combine. Well that seems to borne out by this –

The Obama administration for the first time is weighing in on a Recording Industry Association of America file sharing lawsuit and is supporting hefty awards of as much as $150,000 per purloined music track.

The government said the damages range of $750 to $150,000 per violation of the Copyright Act was warranted.

“The remedy of statutory damages for copyright infringement has been the cornerstone of our federal copyright law since 1790, and Congress acted reasonably in crafting the current incarnation of the statutory damages provision,” Michelle Bennett, a Department of Justice trial attorney wrote (.pdf) Sunday to a Massachusetts federal judge weighing challenge to the Copyright Act.

The position — that the Copyright Act’s monetary damages are not unconstitutionally excessive — mirrors the one taken by the Bush administration and should come as no surprise.

Two top lawyers in President Barack Obama’s Justice Department are former RIAA lawyers: Donald Verrilli Jr. is the associate deputy attorney general who brought down Grokster and fought to prevent a retrial in the Jammie Thomas case. Then there’s the No. 2 in the DOJ, Tom Perrilli. As Verrilli’s former boss, Perrilli argued in 2002 that internet service providers should release customer information to the RIAA even without a court subpoena.

Is the law wrong? Not on principle. But there is a fine point in the Constitution about ‘cruel and unusual punishment’ shall not be applied. Would I have any qualms with seeing a $150k per track fine applied to a pirate doing this for profit? Sock it to’em judge! But it gets a little excessive when one sees an application of fines of a quarter of a million being applied to an individual. Especially when many of these same songs are available on iStore for 99¢.

Its not the law that is at issue. It is its over the top application. To the folks that download music, consider the consequences. The risk factor is not worth it compared to the $1 pricing available on the net. To the RIAA, keep going guys. Its a great way to kill your industry.

Linky.