Suing individual file traders. Right, wrong, or both?

Well, that's all well and good, but I think they've taken things too far. Their way is now virtually the only way (practically speaking).

A column on MSNBC.com helped illustrate the RIAA's strategies. Here's an excerpt:

So why are the record labels taking such a hard line? My guess is that it?s all about protecting their Internet-challenged business model. Their profit comes from blockbuster artists. If the industry moved to a more varied ecology, independent labels and artists would thrive?to the detriment of the labels, which would have trouble rustling up the rubes to root for the next Britney. The smoking gun comes from testimony of an RIAA-backed economist who told the government fee panel that a dramatic shakeout in Webcasting is ?inevitable and desirable because it will bring about market consolidation.?
The record industry, with the help of Congress and the Copyright Office, may indeed make a shakeout inevitable. But I doubt that Jim Atkinson and his fellow independent Webcasters find the prospect of their extinction terribly desirable. Nor do the 77 million Americans who have at one time tuned in to Web radio and perhaps found something not featured on the lobotomized playlists of broadcast radio. If enough of those outraged listeners stream their objections to legislators, maybe Internet radio can be saved.

 

Back in 1996, I had pretty much known that would eventually be the case. The record industry, I thought, would be doomed if they didn't embrace the new technology... but they're doomed anyway because, as it turns out, the technology advanced so far so fast that we don't really need them anywhere in the picture.

This is a reality they failed to realize until it was already too late. Now they're just trying to prevent themselves from becoming completely obsolete and middlemen fileshares like Napster are actually helping maintain their archaic and unnecessary business model instead of helping natural market forces cull it out.

 

That article has some good info, and a glarring bias, but it's cool. He obviously has his opinions. But internet radio is a whole other debate. This seems more like a case where equal protection needs to be applied.

It seems that someone is trying to get in on the good side with the "young crowd" and do the bad thing against the record companies

The minute I surpassed Elvis and the Beatles, they called me a freak, a child molester. ... They said I bleached my skin. I know my race ? I know I'm black."

[image=http://foxnews.com/images/60105/1_21_175_jackson_michael5.jpg]
Preach on brother Mike. Tell the people how black you really are.

Let me tell you, when Michael Jackson, Al Sharpton and Johnnie Cochran get together I want to be on their side for sure. I mean, can you find 3 more credible and trustworthy people to tell you the truth about something? These guys are the 3 tenors of truth!



The whole story

As for record companies, their days will only be numbered when panel selected bands are seen for the fakes they are, and musicians stop taking the quick and easy path to stardom.

 

Hollywood gets tough on copying

?Takedown? letter campaign targets movie swappers

By Bob Sullivan
MSNBC

July 12 ? Keith Tyler signed up for broadband Internet access three weeks ago, and did what many high-speed Net users do ? he started swapping music and movies. But within days, the movie industry and his ISP tracked him down and told him to stop offering movies for download, or else. Such threats are now the weapon of choice for the Motion Picture Association of America, which says it?s slinging some 2,000 complaints a week toward alleged movie pirates.

IT?S CALLED A ?takedown? notice, and it comes with the eerie feeling of having been caught with your hand in the cookie jar ? by a lawyer. The letters are flying fast and furious now, as the movie industry tries to pre-empt a Napster-sized outbreak of free content swapping.
?Dear Customer,? a typical letter from one ISP, Cox Communications, says, ?We have received a notification that you are using your Cox High Speed Internet service to post or transmit material that infringes the copyrights of a complainant?s members. ... Cox will suspend your account and disable your connection to the Internet within 24 hours of your receipt of this e-mail if the offending material is not removed.?
The letter then goes on to cite the offending content. In Tyler?s case, it was three or four episodes of ?The Simpsons? and part of the new movie ?Windtalkers.? A bit shocked by the notice, he quickly removed the content.
?I had high speed Internet access for just three weeks, it had not even been that long,? said the 24-year-old Tyler, an information technology specialist from Phoenix, Ariz. ?It was just a couple of movies.? He had made them available for download on the Gnutella network.

Tyler said he replied immediately to Cox saying he had deleted the files. ?They wrote back and said that should be good enough.?
Tyler was nabbed by an automated program developed by Ranger Online Inc. The software cruises file-swapping networks like Gnutella to find copyrighted materials, hunts down the IP address of the poster, then discovers which Internet service provider is being used. Soon after, the MPAA sends its form letter to the ISP. Under the Digital Copyright Millennium Act, Internet providers are compelled to stop distribution of copywrite materials when they are notified, so the ISP in turn forwards the note to the user, along with a threat of disconnection. Expect more threats as time goes by ? in 2001, 54,000 letters went out. The rate has now doubled, with 50,534 takedown notices sent by June 30 of this year, keeping Internet service providers very busy chasing down copyright complaints.
?We are continuing to fine-tune the system,? said Ken Jacobsen, senior vice president and director of worldwide antipiracy efforts at MPAA. While the firm began sending takedown notices in late 2000, efforts continue to ramp up, to keep pace with increased movie swapping online.

A LIGHTER TOUCH
So far, the MPAA seems to be using a slightly lighter hand than the Recording Industry Association of America. Along with the calamitous battle with Napster, followed by litigation against current file-swapping services KaZaa and Morpheus, the music industry has been behind several high-profile arrests of individuals involved in the online music trade. And just last week,
The Wall Street Journal reported the industry is planning to step up such individual prosecutions.
While Jacobsen says such drastic law enforcement measures would be appropriate in ?extreme situations,? he says the movie industry is really hoping to have relatively civil exchanges with transgressors like Tyler, and sees takedown notices as an educational effort.
?We are trying to notify people,? he said. ?The person may not understand this is inappropriate behavior. Clearly our first approach would be to try to let them know.?

THREATENED WITH DORM EXPULSION
The MPAA?s exchange with Robert Sullivan, one of t

 

"The minute I surpassed Elvis and the Beatles"


What a retard!

 

Is it morally right to download (for free) the music of dead artists? If the artist is dead, then those who own the rights, are only making money by doing no work at all, so are freeloading.
I'm of the opinion that you should feel no guilt at all for grabbing tunes by Elvis and Sinatra for nothing.

I hope someone reads this.

 

Unfortunately, the record companies keep those rights for a near-eternity. It doesn't matter whether to artist dies or not, as I understand it.

 

Yeah, I know they hang onto them forever, but would you feel bad for doing it? Personally I would have next to no problem doing it. If they person is dead, they are making no more money for their work! Simple! Cut out the parasite!

 

I will admit to having swapped files before. I mostly use the various services to acquire copies of television programs I can no longer get (because our reception is lousy). I see nothing wrong with this usage because it is akin to recording them digitally or borrowing a recording (from the airwaves) from a friend.

That said, I also believe that copyright law needs some changes made. Here is what I propose:

Change the term of copyright to 20 years, renewable once for an additional 20 year. This would replace the current term of 95 years or life of the author plus 20 (which ever is longer). This would be in keeping with the original intent of copyright, to allow the author an exclusive monopoly for a limited time so they can profit from their work.

Eliminate "work for hire", the principle that says that if you are hired to write something, the copyright is transfered to the person who hired you. I would make copyrights non-transferable (except to the heirs of the author). I place of this, I would make a new "work for hire" condition: mandatory, non-revokable licensing of the work to those who hire an author/artist. After a period of time (decided by the artist's contract with their employer), they would be allowed to license it to others under their own terms.

I feel that these changes, along with the provision that once a work enters the public domain, it cannot be recopyrighted, would restore copyright to its original intent.

This sort of plan would return control of the works to the authors, those who actually created the content. It would allow companies to make use of the works, but it would protect the authors/artists as well.

Kimball Kinnison

 

I'm actually in favor of changing the copywrite lengths for music and for software. Software should be 10 with an option to renew for an extra 5 years (because of it's shorter life) and music would be acceptable at 20 with an additional 10-20 option.

 

What will shortening the length of copyrights do? Companies will just shift the increased costs of renewal (labor, processing and fees) to the enduser through higher prices.

The answer is simply to eliminate the middleman... reduce unecessary distribution costs!

Record companies, as long as we keep feeding their coffers, whether buying their works or trading Mp3s of their material, thus giving them a reason to gain interest in partnering with internet distribution schemes like Napster, will not elect to eliminate works for hire. They will simply not finance something from which they are denied control and profit... what would be the point for them? Their entire business model rests on their ability to control channels of music distribution, and decide on the basis of marketability, because they are a business, what ventures they deem worth financing. If you invest in stock, are you not expecting a gain? If you lease a car, who holds the title? Likewise, if a record company loans you $300,000, what makes you think you own the rights to something they financed? If you're willing to sign a deal with a label in the first place, and you weren't paying attention to the terms of the contract, that's your problem to deal with.

Besides, the difference between Copyrights and Phonorecord rights already covers this ground by creating a distinction between the copyright on the song and lyrics vs. the phonorecord rights associated with a particular collection/arrangement of songs on an album release. Some artists are able to negotiate deals wherein they retain full copyrights over the original material, but the record company retains phonorecord rights.

In some instances, artists such as Madonna have made distribution deals with record labels... whereby they receive financing for a fully-functional record label subsidiary ($60 million is what Time-Warner contributed to Maverick, her record label) with rights to sign artists, in exchange for exclusive distribution rights. Granted, she's perhaps the highest paid female solo artist in the recording business (in terms of royalty percentage points), but smaller artists can strike similar deals as well, if they are marketable.

The 1992 Audio Home Recording Act already establishes that the individual copying of prerecorded material exclusively for personal use and not distribution (whether free or profitable) is legal.

Essentially, the copyright law protects the little guy far more often than it protects the big ones... because it establishes copyright infringement as a crime, and not just a tort. If copyright law were abolished, let's say, huge record companies would have the advantage... because their legal defense teams are far more likely to win every tort lawsuit brought against them by Joe Blow, and if an independent artist's material were stolen and they did not receive credit... they would not have any guaranteed protection and, most likely in the case of major labels, couldn't afford as many top-notch lawyers to defend themselves in a tort case.

Furthermore, even if copyright registration changes, common law copyrights could be substantiated far more easily by companies with big law firms and lots of documentation... and they're still entitled to civil damages, aside from the criminal penalties that Title 17 establishes.

 

That is part of why I suggest making copyrights non-transferable in addition to shortening the length of copyrights. By doing that, it removes the power that the current middlemen have (by forcing artists to assign the copyright to them) and places it back with the artists. The only exception I would give to this would be that it can be transfered to the legal heirs of a person upon their death.

My proposal would give a person/company up to 40 years to profit from their work (considering that most profit on music is made within the first 1-2 years). Beyond that point, it should fall into the public domain. (I will point out that the term I suggest is still longer than the original term of copyrights, 14 years.)

I would also add the requirement to be able to remove all Digital Rights Management restrictions when the copyright term ends and the work falls into the public domain. This guarantees that the work will actually be available to the public (who would become the owners of the work). Otherwise, it is like owning the safe but not having the combination.

A funny thing to notice is that copyright terms have been constantly extended over the past several years, always just before Mickey Mouse would fall into the public domain. Add to that that Disney is a major campaigner for extended copyrights and I'll let you draw your own conclusions.

Kimball Kinnison

 

While I understand your motives, I think that the elimination of works for hire doesn't solve the problem of the recording industry juggernaut. First off, it may give ignorant artists and bands more incentive to sign record deals without being forced to be accountable for what contracts they enter.

If a revolution in music distribution is going to occur, it has to come from the consumer... ultimately our demand is what drives everything these companies do. Secondly, artists shouldn't be incented to sign with record labels by the elimination of "works for hire"... artists should be encouraged to record, produce and distribute material independently of any record label.

We simply don't need them. So the trick is to make it entirely unprofitable for a company with enormous manufacturing, logistics, marketing and promotions expenses to cover such that they depart the business model entirely.

The computer and the internet are the artist and consumer's primary weapons in this regard. Then the artist retains rights, the consumer has direct transactions with the producers of these goods... and the distribution of control, wealth, information and intellectual property is decentralized... creating the most efficient supply-on-demand system there can be, given that we have the technology to make it far more efficient than the record industry's distribution model... and far more diverse a platform.

 

If a revolution in music distribution is going to occur, it has to come from the consumer... ultimately our demand is what drives everything these companies do. Secondly, artists shouldn't be incented to sign with record labels by the elimination of "works for hire"... artists should be encouraged to record, produce and distribute material independently of any record label.

Making copyrights non-transferable would help do that. By making it so that only the original creator (or their legal heirs) can hold the copyright, it would return the recording studios to what they should have been: a resource for the artists for recording and promoting their music. It returns the power to the artist.

Yes, you would have some artists who would still be taken advantage of by the labels. If they have to negotiate the exclusive license (that I mentioned in my replacement for "work for hire") with each individual, then each artist would be able to set their own limits.

I would also add that I would make that license limited (i.e. the maximum possible time) to the first copyright term (or 20 years undser my plan). The artist (or his/her heirs) could then renew the copyright for another 20 years and license it to whomever they want. Keep in mind, though, that there would be no requirement to provide that exclusive license for the full 20 years. That would be up to the artist, their lawyer and the label in question.

I think we can all agree that copyright laws need to be reformed. Originally, (this is a correction to what I said earlier) they were for 1 years, renewable for another 14 years (I had said a total of 14 years). Now, if I copyrighted something today, my great-great-grandchildren could still be recieving royalties (and I don't have any kids). Thanks to the Sonny Bono Copyright Extension Act (1998), no works will enter the public domain (except those specifically given to it by their authors) until 2019! That is a far cry from the "securing for limited times to authors..." mentioned in the Constitution. Keep in mind that most of the money from a certain book/CD/movie is made in the first 1-2 years. For software, that time is even shorter.

The problem with your suggestion of using the internet for distribution is that not everyone is online yet. Even fewer people have the broadband access needed to receive large quantities of digital content (like music or movies). It is not feasible to topple the recording industry's model just through the internet at this time. Even then, the laws would still need reform. They have far surpassed the intent of copyright as described in the Constitution.

So, how would you recommend reforming copyright law to help correct for its abuses?

Kimball Kinnison

 

Making copyrights non-transferable would help do that. By making it so that only the original creator (or their legal heirs) can hold the copyright, it would return the recording studios to what they should have been: a resource for the artists for recording and promoting their music. It returns the power to the artist.

Why "should" they have been a "resource"? What do these enterprises, conceived with every intention of making a profit, owe to recording artists?

I have no suggestions in particular at this time for reforming copyright law... If I review Title 17 and think of any, I will certainl let you know. However, why not reform the industry that is abusing the law and influencing the lawmakers? Reforming the law won't by any means declaw them permanently, nor will it eliminate the unnecessary burden their presence places on the supply-demand chain of entertainment. I'm not talking about legislative-imposed reform, either. I'm talking about consumer- and producer-imposed reform (producers of goods being the artists in this case).

It took less than ten years for CDs to surpass cassettes and vinyl as the dominant format... It should take less than that for the internet to dominate distribution. Still, one doesn't need to rely on the internet alone. It's far better for me as an artist to produce my own recording, manufacture and distribute it through consignment with record stores. I also consider it better for my audience to have direct access to my work... if word of mouth gets out and people like it, more albums will sell and I can order more CDs to be pressed... It will cost me a LOT less than the debt I will encumber if I sign a record deal, and profit me a lot more... at a lower price to the enduser than the record labels could manage.

Lastly, in an AC Nielsen survey of the greatest internet populations the US ranked #1 for Q1, 2002, with 166 million online. That is approximately 60 percent of the population.

In 1991, the World Wide Web was released by CERN. By 1993, 130 websites were registered. As of March 2002, there are 38,118,962 websites... less than 11 years after the inception of the WWW. By contrast, CD technology was first announced by Philips in 1978, first marketed in 1982 and by 1990, 28 percent of households had CDs and worldwide sales reached 1 billion. By 1999, combined sales of DVDs and CDs totalled 9.2 billion. So, for roughly a ten year period, optical media sales have grown 820 percent, maturing to 4 percent annual growth in the last year. By comparison, the internet by measure of internet sites has grown 29.3 million percent during that same period.

Some other relevant internet statistics (Source: internetindicators.com):

1. 17 million US households shopping online by 1999.
2. 10 million networked homes in the US by 2003.
3. 64 million US adults are regular internet users.
4. 56 percent of US companies will sell their products online by 2004.

Economic Impact

Information technology sectors are growing at double the rate of the overall economy and have jumped as a share of the economy from 6.4% in 1993 to 8.2% in 1998. (U.S. Department of Commerce)

High-tech has driven more than a quarter of all economic growth since 1993. (U.S. Department of Commerce)

In 1965, high-tech's share of business spending was 3%. In 1996, it was 45%. (U.S. Department of Commerce)

In 1996, 7.4 million people worked in high-tech jobs, earning an average salary of $46,000, more than fifty percent more than the average wage of $28,000. (U.S. Department of Commerce)

Internet Usage

1 in 6 people use the Internet in North America and Europe. (NUA)

The number of women using the Internet worldwide will pass 96 million, or 45 percent of the world's Internet users in 2001. (Computer Economics)

In 1993, there were 26,000 domain names in use. In 1999, there are 5 million web sites. (

 

However, why not reform the industry that is abusing the law and influencing the lawmakers? ... I'm not talking about legislative-imposed reform, either. I'm talking about consumer- and producer-imposed reform (producers of goods being the artists in this case).

I am not saying that you are wrong to reform the industry. However, reforming the copyright laws is a vital first step in that. It is the copyright laws that have given the recording industry its teeth. By forcing artists to assign the copyrights to them, they gain the control over the music, regardless of what the artist might wish (hence the danger in work for hire). Without the legislative reform, the consumer and producer reform will be largely ineffective.

Why "should" they have been a "resource"? What do these enterprises, conceived with every intention of making a profit, owe to recording artists?

I used should from the ethical standpoint. No matter what Capitalism says, it is unethical to exploit others for your own personal gain. Let me provide an analogy of a model the recording industry could use.

My Dad and I enjoy woodworking. Over the last several years, we have built up a large supply of tools and (recently) added a workshop to the back of our house. In all, (including the cost of remodeling to include the shop and the master bedroom over it) we have spent over $100,000 on supplies (adding about that much value to the house at the same time). The power tools are expensive to buy (for the higher-quality ones we want) and the supply of wood can get pricey as well. However, in that workshop, we can create works of art (right now we are working on a walnut and maple crib for my new nephew, born last week). We are lucky that we have been able to accumulate the resources to do it in our own home.

However, there are places in our area that will rent you time in their shops to work there, on their tools. Their tools are higher-quality than what we can afford. They have experts on hand to help those who need it. They are a valuable resource for us (and others) when we need it. Some places will even help market your work, if that is what you want (and it meets their standards).

In the same way, the recording studios have access to high-quality equipment. They have marketing experts and recording experts who can help artists who may want those services. You can build up a nice home studio (I know people who have done this), but not everyone has those resources available. You can do your own marketing, but you could also hire them to market it for you.

In other words, the recording industry could try following the same model as woodworking shops do. It could become a resource for artists, not a requirement (like it almost is today). Many of the woodworking shops (especially those that help sell pieces) are quite profitable, taking a fair portion of the sales (often negotiated on an individual basis).

Kimball Kinnison

 

However, there are places in our area that will rent you time in their shops to work there, on their tools. Their tools are higher-quality than what we can afford. They have experts on hand to help those who need it. They are a valuable resource for us (and others) when we need it. Some places will even help market your work, if that is what you want (and it meets their standards).

In the same way, the recording studios have access to high-quality equipment. They have marketing experts and recording experts who can help artists who may want those services. You can build up a nice home studio (I know people who have done this), but not everyone has those resources available. You can do your own marketing, but you could also hire them to market it for you.

Here's the problem... you're confusing recording studios with recording companies. A wood workshop at its core is akin to a recording studio. Regardless of whatever value-added services recording studios include, they aren't record companies--which are built upon a business model whose sole function is to commission, package, distribute and market the work for profit. Some record companies own studios, but most do not.

Let's use two similar examples... Ikea and Warner Bros. Ikea is a furniture manufacturer, Warner Bros. is a media conglomerate (specifically, the television, film and music/music publishing arm of AOL-TimeWarner). Ikea's employees do not retain rights to things they design for Ikea... nor do Warner Bros. contractors (recording artists). The only difference is the methodology of employment... one is fully employed, the other is an independent contractor.

Ikea is more than likely not going to, as a huge manufacturer of upscale furniture, going to make a paradigm shift and suddenly decide to forego their profit margins by committing more resources to helping woodworkers with their projects at no return to Ikea. Likewise, Warner Bros. would never do that... and furthermore, one of the biggest reasons they would not is shareholders. Shareholders want a return on investment.

Internet Underground Music Archive, however, is an organization dedicated to doing exactly what you're proposing. In addition, there are other producers out there, such as myself, who will gladly share their resources with those who want to independently distribute their works. I am committed to eliminating the middleman precisely because we don't need them. They are an anachronism in the digital age.

 

Again, you miss part of the point of what I was saying. Recording studios are only one part of it. There is also the marketing and physical production and distribution of the work as well.

Basically, the recording companies need to turn to a services-based model, not a content-based model. My plan would, in part, force that by making the artists the clear content owners. At that point, the record companies need to move to a distribution-based model (which is at its core a service).

I agree with you on many points, but there needs to be a legislative change to help reign in the abuses first. Copyright needs to be scaled back to the limited period of time mentioned in the Constitution. Until that happens, the media companies will continue to wield too much power over politicla matters.

If people did as you suggest, the media companies would claim their losses are frompiracy and find ways to force people to pay them even more money (like they are doing now). Until the legislative options for them are eliminated, we will have little recourse in the end.

Kimball Kinnison

 

Kimball: Legislating the structure and function of the entertainment industry would bring us one step closer to Communism...


Again, you miss part of the point of what I was saying. Recording studios are only one part of it. There is also the marketing and physical production and distribution of the work as well.

I understand your point quite well... I simply disagree with it.

Basically, the recording companies need to turn to a services-based model, not a content-based model.

Why do they need to?

My plan would, in part, force that by making the artists the clear content owners.

Why should artists own the content of something they didn't finance? Do you own everything you create for your employers?

At that point, the record companies need to move to a distribution-based model (which is at its core a service).

All major record companies are distributors already.

I agree with you on many points, but there needs to be a legislative change to help reign in the abuses first.

What abuses are occurring without the artists' written consent?

Copyright needs to be scaled back to the limited period of time mentioned in the Constitution. Until that happens, the media companies will continue to wield too much power over politicla matters.

Until we, the audience, start changing the channel, turning off the TV or stop buying CDs, nothing will change. You actually trust politicians to "clean up" big business? On what historical basis should we give them such trust?

If people did as you suggest, the media companies would claim their losses are from piracy and find ways to force people to pay them even more money (like they are doing now).

They already do claim their losses are from piracy. That doesn't change the fact that they're an anachronism. They aren't "forcing" anybody to do anything. You have to have heat to live in Minnesota in December... you don't have to have Britney Spears, though.

Until the legislative options for them are eliminated, we will have little recourse in the end.

Are you that blind to the power of the consumer in a free-market economy? Legislation amounts to a corporate bailout. We don't need to do to the music industry what we've done with the telecom and airline industries... overregulated them just so that anachronistic business models with poor customer service and a horrible product can continue to thrive.

caveat emptor. ("Let the buyer beware...")

It is a consumer's right to demand whatever crap they're willing to pay for. The increasing price of cigarettes has been determined to be a considerable factor in the recent decline in teen smoking. If tomorrow they suddenly started charging $50 for a CD, its not likely anyone would buy them... and prices would return to the supply-demand market equilibrium. Record companies only push their prices as far as the public are willing to pay. The fact that the public is still buying millions of CDs every year (9.2 billion CDs and DVDs last year alone) says that we haven't broken that threshold.

The simple answer is that if we start regulating record companies, they will become just like the behemoth airlines and telecom companies that are putting a drag on our nation's technological, economical and social progress.

If Americans want record companies to change their ways, they'll tell them through their purchasing habits. Right now, with the trend increasing towards online file sharing, there's no purpose the record companies can serve that cannot be achieved through other, more cost effective means.

Preserving the monopolistic function of record companies is what has maintained the horrendous cost of recording hardware... Eliminating them by way of natural market forces, not legislation, is just a matter of spring cleaning... wiping away the cobwebs and starting anew.

Speaking from a competitive standpoint, there's nothing record companies can offer today that cannot be achieved through other channels of pr

 

SnowDog, you seem to misunderstand a lot of what I am advocating. Let me clarify.

The simple answer is that if we start regulating record companies, they will become just like the behemoth airlines and telecom companies that are putting a drag on our nation's technological, economical and social progress.

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; -- U.S. Constitution, Article I, Section 8, Paragraph 8

That is what I am advocating a return to. I have said absolutely nothing about regulating record companies or anyone else. I have, instead, talked about returning copyright to its original constitutional intent. Note a few things in that paragraph.

First (and foremost), the phrase "limited times": Do you consider 95 years (or life of the author, whichever is longer) with automatic extensions being added on a regular basis an appropriate definition of "limited times"? If not, then do you agree that copyright law needs to be reformed? If so, why?

Second, note that it says to authors and inventors. No mention is made about transferring copyrights or patents, nor is there any mention of producers or financers receiving this "exclusive right". What constitutional basis is there for work-for-hire? You asked Why should artists own the content of something they didn't finance? Do you own everything you create for your employers?. I say, if you are going to finance someone to create something, it is still their creation. You can still make money off of it, but, according to the Constitution, the author or inventor is the one with exclusive rights, not the financer.

What many people do not realize is that Intellectual Property does not really exist. Ideas are freely available. What copyright and patent laws do is allow someone exclusive rights (not ownership, hence not property) for a limited time. Property can be held by a sole owner for perpetuity. Ideas cannot.

The first judicial steps are already underway to declare much of the modern copyright law unconstitutional. Lawrence Lessig and others have filed a case to have the Sonny Bono Copyright Extension Act (1998) declared unconstitutional. It should come before the Supreme Court within the next year (according to many experts).

You can speak of Capitalism and Free Markets all you want, but I was not speaking on that at all. I was speaking of the constitutional basis for copyright and the need to correct the abuses against it. That can only be done through legislative and judicial means. In case you hadn't noticed, the Constitution is not a Capitalistic document. It is quite neutral in the economic system it supports. You can use the Constitution as the basis for a socialist economy as well as a Capitalist one. It could even be used (with very little modification) in a Communist economy.

Kimball Kinnison

 

Kimball: I'm not arguing that Title 17 should not be amended. I'm not arguing that we cannot refine the principles of copyright law.

However, I am arguing against your idea that record companies should be made into anything... if they are not themselves capable of adapting to the changing needs of the American consumer. Let them become obsolete, and in their place, a better model arise for the "free exchange" (by "free" I mean "uninhibited", not for lack of consideration should one ask for it) of such intellectual property. Constitutionality is a separate discussion, because it addresses what government can and cannot do. If, under the legal provisions of copyright law, an artist decides to assign rights to a publisher, distributor or record label, it should be their prerogative to do so. If they do not wish to relinquish such rights, simply don't sign any contract that would relinquish such rights. You do have that option, and no facet of government is forcing you to forsake that option.

That's all I'm saying. While there are improvements that can be made, and I agree with the concept of advocacy for the little guy... I am also an advocate of responsibility. I cannot feel blind sympathy for every artist who is popular enough to get an offer from a major label, and yet fool enough to not to have a lawyer explain the fine print to them before they willingly trade their artistry and creative control away for the love of money in a contract the size of Webster's Unabridged Dictionary.

Ultimately, I think the bottom line is, changes or no changes to copyright law, the pandora's box of independent artistry has been opened and is not going to be closed any time soon. It is presently possible, for less than it costs to get an album made in a professional studio, to set up a digital recording studio at home, record, mix, master, produce, manufacture and market your own work from your home... retaining full creative control and rights to your work. Furthermore, with broadband internet access on a rapid incline, many internet users can now download an entire album's worth of material in roughly half an hour (MP3 compression) and burn it to a CD.

Why anyone would sign a record deal is beyond me. Mechanical rights aren't required to be transferred, they are willingly given up in contracts... There is nothing in Title 17 that requires anyone to relinquish them. Though compulsory license allows one permission to reproduce the lyrics/music at the licensee's own expense, that is considerably different from mechanical rights to the original recording utilizing the artist's own work... and does not constitute a relinquishing of any rights to the original masters.

 

There is nothing in Title 17 that requires anyone to relinquish them.

That is actually incorrect. The principle of "work for hire" can require someone to relinquish the copyright to their work. Let me provide an example from a related industry: computer software.

I am a very big advocate of Open Source Software. OSS is primarily developed by people (mostly professional programmers) as a hobby, apart from their normal work. In a few recent cases, some employers have laid claim to OSS projects run by their employees, even when no development was done on company time or using company resources. The argument used was that those programmers were hired to write code, so all code they wrote while employed by the company was owned by the company. In the case of salaried employees, it was found that the companies did have a claim to the code.

I am a copyright holder (specifically of software that I have written with my father). I work on OSS as a hobby as well. The code I write is mine (for now). I write code for fun (and happen to do it for my job as well). Unfortunately, my school or employer could even lay claim to any code I write while a student/employee there (I have a specific agreement with my current employer to grant me an exemption). That is the true danger of "work for hire". It can allow an employer to lay claim to the work of an employee even if it does not relate to their job.

Market forces alone cannot correct such abuses. It is a legislative problem that requires a legislative solution. In the same way, I never advocated the government forcing the recording industry to change. I advocate reforming the copyright laws (restoring the balance that was intended) which will allow the market forces to make them change or destroy them.

Kimball Kinnison

 

That is actually incorrect. The principle of "work for hire" can require someone to relinquish the copyright to their work. Let me provide an example from a related industry: computer software.

I disagree with this conclusion for a couple of reasons. First, let's get to the source of the matter. Title 17 establishes in Chapter 2, §201(b):

(b) Works Made for Hire. -

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

Nowhere in this provision does it declare precisely the scope of works made for hire. By this I mean that Title 17 does not assert a blanket statement about which works are considered for hire and which works aren't. Those provisions are stipulated in an employment contract or release form.

The employer and employee, or independent contractor in the case of recording artists, outline in their binding agreement what works are considered "for hire" for the duration of the individual's (or band's) employ or contract.

If you signed a release form with your employer that declares that any and all code/software written during their employ is considered their property, then that is your fault. It is the burden of the employment agreement or release form to establish what belongs to them and what doesn't... because Title 17 does not designate it. §201(b) does not state at all that code made without the resources of the employer, on your own time, outside the time for which the employer is paying, is automatically their property. Again, if an employer hires you on a contract to create a piece of software, it is the piece of software for which you have been contracted to write which is considered the "work for hire"... absolutely nothing else.

If an employer has hired you indefinitely, not under a contract, but on "at will" employment, and they have not established a release form declaring what they want to consider "for hire", and they are yet claiming anything and everything you create, including that without their resources, or that which is outside the scope of your employment, or outside of the time for which you are paid... I would advise you to consult a lawyer.

In the recording industry, the affects of "work for hire" are far less nebulous because the recording company is not an employer, per se, and the recording artist is an independent contractor. "Works for hire" in the record industry are defined and outlined very clearly in recording contracts, precisely because Title 17 does not define which works of the artist are for hire. They have to be defined in the contract, and typically as follows:

1. Record label gives artist an advance to cover recording expenses; in exchange for:

2. Exclusive rights to a certain number of songs. This is the first provision that defines which works are for hire: Namely, those recorded for their demo which will require the approval of A&R (Artist & Repertoire) personnel before any commitment of release... to which they are not obligated if they are not satisfied with the material produced... much as you would demand a refund (effectively terminating the contract) from the dry cleaner if they didn't clean your suit to your liking.

3. "Options" for a specific number more songs. This is the first place the record companies screw you. In the contract. This provision is expressly stated because there's no such protection offered by law. Breach of this term constitutes only a tort, because there are only civil penalties, no criminal penalties, inherent in breach of contract... whereas breach of US law is a different matter.

What optioning means is that they may have optioned you for 20 more songs... and allowed you another $800,000 for the right to these 20 more songs which you are required to record for them, but, according to the terms of the contract

 

I have ignored this thread for the most part and most of this is too long for me to read all of it, but I find the idea of suing people like me scary.

I had Cox Communications and downloaded quite a few movies and MP3's through Napster and then Bareshares. I have deleted most of the movies but I don't consider it stealing, as I wouldn't have bought or watched the movies otherwise.

 

Snowdog, you seem to have overlooked a certain part of my example. Remember, I am not speaking just of music, but of all copyright in general.

Those provisions are stipulated in an employment contract or release form.

Again, not always. As in the example that I pointed out, in the case of salaried employees, it was found that if they were hired by a company as a programmer, then all their code over the period of employment can belong to their company, regardless of whether they used company time or resources to develop it and independent of any contracts (unless it is specifically excluded by their company, as in my case). That is because of the logic that a salaried employee is not paid by the hour and so they have been paid for all the code they write.

You quoted §201 of Title 17, speaking of a work made for hire. Unfortunately, you seem to have missed Chapter 1, §101 which defines what is a "work for hire". It states:

A ''work made for hire'' is -

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a ''supplementary work'' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ''instructional text'' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Now, following that definition, let's review §201 again, as you quoted it:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. (Emphasis added)

In other words, Title 17 does state what is a work for hire or not. You do not need a contract in order to have your copyright reassigned to your employer. All it would take is for the employer to show that programming (in general) is "within the scope of [your] employment" or that you had a specific contract to create that work for them.

That is the danger of work for hire. An employer can decide that something is within the scope of your employment, or they could change the scope of your employment. Allow me to demonstrate, using my example of programming.

Assume that I am hired as a programmer for a company and am assigned to write a financial application. In my spare time at home, I study Linux and Unix networking and write an Open Source tool for a networking-related purpose. Then, after working on the financial application, I am moved to maintaining their network. Suddenly, my company could lay claim to any further changes I make to my program and force me to stop distributing it for free. They could also make a case (in court) that they own the entire program (if I wrote it since I had been hired), regardless of what projects I had been working on since then.

This would be unless I had signed a document that specifically allowed me to keep code I had writen in my own time.

While this is mostly true for programming, it can become a problem for music or writing as well. For example, I could write songs while working as a