Fashion industry thrives in spite of no copyright protection

An upcoming paper in the Virginia Law review explains how the fashion industry thrives in spite of a lack of copyright protection. The paper has been widely covered in legal and new media blogs, and calls into question the common assumption that copyright induces creation through financial effects.

UK sound recording copyrights staying at 50 years?

The UK likely won't extend copyright for sound recordings beyond the current 50 year term, a surprise to most of the entertainment industry. Although this isn't a done deal, it means the earliest Beatles recordings will be in the public domain in the UK by 2013!

Will this have an impact on the US market? The Supreme Court held in Quality King (98 F.3d 1109) that imported copies are subject to the first sale doctrine. So what happens when a work no longer covered in the UK is manufactured there and resold here? The importer should be able to undercut prices in the market here.

Ringtones get compulsory licenses - publishers mad, labels happy

The Register of Copyrights has determined that ringtones fall under Section 115 of the copyright Act, and therefore are subject to compulory licenses. The publishers had argued that ringtones, and we mean the realtones which are actually audio rather than midi, are derivative works, and therefore not covered under Section 115. Harry Fox had already licensed a large number of works under this theory at rates higher than the compulsory license, so this ruling means that publishers will probably lose money, although it is still up to the Copyright Royalty Board to determine the exact rate.

Streamcast (Morpheus) case follows Grokster

Streamcast, maker of popular P2P application Morpheus, lost in court against the RIAA. The judge followed the precedent from the MGM v Grokster decision last spring - a company that induces infringement may be liable even if they have no central server. The majority of Streamcast's brethren have either settled with the RIAA and folded up, or else are converting to legit services. Limewire is the exception - they are counter-suing the RIAA for antitrust violations because they claim they tried to go legit but could not get the same deal as iMesh.

Recording broadcasts

The road from performance to copy has blurred. Taping radio onto a cassette, or a TV show onto a VHS tape, was considered fair use in the 80s. But now that satellite radio companies want to make hardware allowing perfect digital copies of satellite broadcasts, the copyright holders want more money, beyond the performance royalties they already receive.

Is it fair? On one end of the spectrum, we have TiVo - they don't have to pay those fees for in-home reproductions, even though I can tune into a music channel from cable and record the audio in perfect quality. In fact, our intellectual property system has awarded TiVo this past spring in a suit against DVR competitor EchoStar, to the tune of $73 million. (Although EchoStar has a stay on the injunction and is filing a countersuit)

On the other end, we have the Internet subscription services (Yahoo, Rhapsody, etc...) - they were forced, by the record labels, to build in digital rights management preventing easy interface with the streaming server for recording purposes, the circumvention of which may violate sections 1201 or 1202 of the DMCA. Software does exist for recording live off of the sound card (see Replay Radio and Total Recorder), and the legality of such an act done for more than noncommercial purposes is unclear.

So why is cable content not encrypted? Or conversely, why can't Internet streams be recorded directly from the streaming software application? Why the distinction in rights related to access and time-shifting depending on whether the content is delivered via cable, satellite or Internet? It's all digital content.

The law (statutes and caselaw) draws distinctions based on distribution technologies that ought not to be drawn. The core bundle of rights, such as reproduction, distribution and performance, evolved at a time when each right would be exercised through a distinct technology typically involving striking physical differences. Today, they all blur together thanks to digital networks.

The bundle of rights in the Copyright Act should be completely rewritten from the ground up to be neutral and uniform with respect to transmission technology. Such a change would save time and money for law firms, technology companies and content providers.

21st century music law

Copyright is dead. Long live copyright!