intellectual property

Update on my RIAA post yesterday: Via Techdirt:

Back at the beginning of December, we helped debunk a story making the rounds claiming that the RIAA was going after a guy named Jeffrey Howell for ripping his own CDs to his computer. That story was misleading, at best. While we know that the RIAA is constantly pushing to extend both the meaning and scope of copyright law, in this case the details were pretty clear that they were not going after Howell for just ripping his CDs, but for putting those ripped files into a shared Kazaa folder. Now you can (and we do!) disagree that simply putting files into a shared folder are infringement, but that's different than just claiming that ripping the CDs is illegal or that he was being targeted just for ripping the CDs. Unfortunately (and for reasons unclear to me), the Washington Post has revived the story, again repeating that Howell is being targeted for ripping his own CDs. That's simply not true, and it's nice to see a true copyright expert like William Patry question the Washington Post on this as well.

Good news -- or not the bad news we thought -- at least so far.

That's right. The RIAA lawyers are claiming you cannot legally copy for your own use music you bought and paid for. Via Elisa Camahort, I returned from the holidays to read this:

The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.

"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."

Maybe I'm just unique, but I feel that it's this kind of hostility and contempt for the consumer that is doing in the music business.

Elisa writes:

Let me tell you how many CDs I own: somewhere between 1000 and 1500.

Let me tell you how many hours out of the day I listen to my music (my every-single-song-was-legally-acquired music) via my iPod or computer: at least 10 hours a day in my car, at work and at home.

Let me tell you how many of my CDs I would listen to if not for my iPod: probably very VERY few. Even a multi-CD player would be too inconvenient to rely on during the work day. I like being able to turn on Shuffle on my computer or iPod and have music all day without thinking about it or messing with it. Pre-iPod I did not listen to CDs at work ever. I did listen to CDs in my car, but tended to have the same 6 CDs in there for weeks without changing them.

Let me tell you how that would affect my music-buying habits: It would greatly diminish them. I would forget about artists I liked, I would fall into a musical rut, instead of maintaining the really quite broad musical taste I have. And broad taste leads to broad music-buying habits. iTunes has already massively increased my music-buying habits by being so simple and so immediate. By exposing me to more music. And by making it easy for a constant variety of music to accompany my life most of my waking hours.

So, here's what the RIAA is just begging me to do: Never buy another physical CD, ever.

Radiohead just might be onto something.

When it comes to post-mortem publicity rights, this decision is BIG:

The Southern District of New York has just issued a bombshell decision in this area. In Shaw Family Archives v. Marilyn Monroe LLC, it held that Marilyn Monroe's heirs cannot claim post-mortem publicity rights because she died before the enactment of the statute that creates them in California (and, for reasons that are not important here, Indiana). So, according to this Court, her image, likeness and persona are all in the public domain. Put it on a t-shirt. Or a bottle of wine. Use it to sell widgets. No permission necessary. (But please remember, copyrights to the photograph you might want to use are a whole spearate issue.)

Is this a big deal? You bet. Licensing dead celebrities is a multi-million dollar business. But California -- the center of the celebrity universe -- only passed the statute creating post-mortem publcity rights in 1984. Lots of the hottest dead celebrities (licensing-wise) died long before that, and millions of licensing revenue stands to disappear under this decision.

Intellectual property lawyers in Hollywood will now have plenty to worry about, and therefore plenty of job security, for years to come.

This gets to the heart of the new "ownership society" in which we've found ourselves, where people's images, ideas, even naturally-occurring genes are claimed. It's like watching 2nd grade boys claiming territory in the sandbox. "First dibs!"

(Are there sandboxes on playgrounds any more? Let's ask the lawyers.)

If I come across as a tad cynical about this, that's because I'm getting the sense that the claims being made by media corporations and other interested parties are not helping to encourage innovation, but rather are working to stifle it. --Not that the prospect of seeing more Hollywood golden era stars dancing with vacuums has anything to do with innovation one way or the other.

This is going to be an interesting story to follow. And you can be sure the news media will cover it. After all, such things are their bread and butter.

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