March 27, 2008

The First Phonograph

Hackers have an extremely old joke about “write-only memory” — just like read-only memory, but the other way around.

It turns out that the first phonograph — a number of years before Edison’s well-known invention — was just such a system.  It could record sounds onto a piece of paper, but they couldn’t be played back.

Right around 1.5 centuries later, Édouard-Léon Scott de Martinville’s April 9, 1860 autophonogram of a woman singing “Au Claire de Lune” has finally been rediscovered and played back with the help of some serious image-processing work by scientists at Lawrence Berkeley National Laboratory.

Note that this sound recording is, believe it or not, still subject to state-law copyright protection in the United States until February 15, 2067.  17 U.S.C. 301(c).

January 2, 2008

9th Cir.: Karaoke versions are audiovisual works, not fair use

In an opinion published today in Leadsinger, Inc. v. BMG Music Publishing, the Ninth Circuit held that Leadsinger’s karaoke devices, which contain copies of lyrics for display on a TV screen, are not eligible for a license under 17 U.S.C. 115 because they are “audiovisual works,” not “phonorecords.”  This holding is the same as the Second Circuit’s holding on the same question in ABKCO Music, Inc. v. Stellar Records, Inc. 96 F.3d 60, 65 (2d Cir. 1996). This means that companies marketing karaoke versions of songs, when they display the lyrics, must separately negotiate licenses with the relevant music publishers rather than relying on the statutory license that would be available if the karaoke versions were marketed without the ability to simultaneously display lyrics.

Perhaps more interestingly, the court affirmed the dismissal with prejudice of the plaintiff’s declaratory judgment claim asserting noninfringement based on the fair use doctrine.  The court held that resolving the fair use inquiry on a motion to dismiss is proper when the facts alleged in the complaint, if true, resolve the fair use inquiry.

October 4, 2007

Turns Out You Can’t Do That

Yet another “reconstructed copyright deposit leads to great sorrow” case, this time from Puerto Rico, via the First Circuit Court of Appeals: Fernando Torres-Negrón v. J&N Records. (Via Bill Patry.)

July 14, 2007

Matador Records: “Buy Early, Get Now” Brilliance

So my favorite band, The New Pornographers, is coming out with a new album, Challengers, on August 21st. In advance of the release, the NPs’ record company, Matador, is offering a product called “Buy Early, Get Now.” If you order a copy of the album for delivery on the release day, they’ll give you a password to stream the album from the Matador site now, along with allowing access to some MP3 B-sides and live tracks. They’re also offering a 4-CD box set, which upon delivery will include one pressed copy of Challengers and 3 screen-printed, sexily packaged CD-Rs, on which the buyer will be instructed to burn various B-sides, live tracks from the tour in support of the new album, tour photos, music videos, and other material released on the password-protected album website after the record comes out. (That’s right, they’ve figured out a way to include tracks from the future in the box set.)

Matador knows all these rarities will be available on filesharing networks eventually. But they still have something to sell: convenient downloading and sexy packaging. Even though waiting for the material to be posted, downloading it, and burning it will take some time, it’s “certainly less time than you hunting around for it yourself.” Matador knows what it can and can’t control, and this is one of the best strategies I’ve seen for making fans happy while still making money on the deal.

May 12, 2007

S.D.N.Y.: Conclusory Allegations of Striking Similarity Won’t Avoid Summary Judgment

In copyright, there are two ways to prove a prima facie case of copying. First, the plaintiff could show that (1) the defendant had access to the plaintiff’s copyrighted work, and (2) the defendant’s work is substantially similar to the plaintiff’s copyrighted work. Or, second, the plaintiff could show that her work and the defendant’s work are so similar that copying is the only realistic basis for the similarities — in other words, the plaintiff could show “striking similarity.”

On Wednesday, the United States District Court for the Southern District of New York granted summary judgment in favor of defendant Brian Transeau (yes, that Brian Transeau, a/k/a BT, who did those great Tori Amos remixes back in 1996 — you know, the “Talula” remix that was the second B-side on the Professional Widow 12″? But I digress . . .) and against plaintiff Ralph Vargas.

Vargas alleged that BT copied a drum riff from a breakbeat LP Vargas released in 1994.  The allegedly copied riff appears in BT’s track “Aparthenonia,” off Breakz from the Nu Skool.  BT claimed that the riff wasn’t copied; he’d put it together himself in Reason while working on his tour bus. (You can hear the two recordings side by side at the Columbia Law School Music Plagiarism Project.)

Vargas didn’t sell many copies of his breakbeat LP, and he was unable to show that BT had access to it.  So, to prevail, Vargas would have to show that his riff and BT’s were “strikingly similar.” Both sides presented expert testimony on similarity, and BT re-created the drum riff from scratch in Reason for the court. Vargas’s experts waffled during their depositions on whether they could rule out independent creation, stating that the works are “significantly similar, if not identical,” but failing to explain why or to rebut BT’s expert, who did a FFT spectrogram of the two recordings that showed differences.

The court found that Vargas’s expert’s conclusory statements about striking similarity were insufficient to create a disputed issue of material fact that would prevent summary judgment and necessitate a trial. Because the burden was on the plaintiff to prove each element of his case, and the plaintiff had failed to present any expert who found striking similarity (rather than merely substantial or significant similarity), the defendant prevailed on summary judgment.

This seems a little odd, but the oddness, I think, comes from the doctrine itself. “Striking similarity” is not a standard that admits much analysis or evidence; almost by definition, the similarity strikes one or it doesn’t.  All the evidence is in the two recordings. If the court is to “apply logic and experience to determine” whether copying is the only explanation, as Mel Nimmer said it should, why should the plaintiff be required to produce an expert to avoid summary judgment at all? The court reached the right result here — the evidence of independent creation was substantial — but it’s hard to say why there wasn’t a genuine issue of material fact just because their expert couldn’t rule out independent creation (and it’s even harder to say why Vargas didn’t find himself some expert who would rule out independent creation).

I’m not crazy about “striking similarity” as a doctrine for precisely this reason: it collapses the whole analysis into the question of whether the factfinder thinks the two works could or couldn’t have been created independently. The doctrine withstands analysis so poorly that it’s hard to say why and whether any evidence or advocacy is needed at all: at its core, the “striking similarity” doctrine says that, when the plaintiff can’t prove access, the factfinder is to listen to the two works and decide who wins, with close cases going in favor of the defendant.

(For more beating up on substantial similarity (just smarter than mine), see this post at Bill Patry’s blog.)

Congratulations to the Stanford Fair Use Project, which was co-counsel for BT during this case’s long history.

April 30, 2007

S.D.N.Y. Jury: Yahoo!’s Personalized Webcasts Not “Interactive”

A federal jury in the Southern District of New York on Friday handed down its verdict in Sony v. Launch Media, finding that Yahoo!’s LaunchCast service was not an “interactive service” under the Copyright Act. has an in-depth report on the closing arguments, along with interviews with jurors.

Here’s some quick background. Section 114 of the Copyright Act allows webcasters to obtain a statutory license for the performance of sound recordings, so long as they meet numerous conditions. One of those conditions is that they must not be an “interactive service.” Section 114(j)(7) states:

An “interactive service” is one that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large, or in the case of a subscription service, by all subscribers of the service, does not make a service interactive, if the programming on each channel of the service does not substantially consist of sound recordings that are performed within 1 hour of the request or at a time designated by either the transmitting entity or the individual making such request. If an entity offers both interactive and noninteractive services (either concurrently or at different times), the noninteractive component shall not be treated as part of an interactive service.

The issue was whether LaunchCast, which allows users to list favorite artists and creates a station that plays music the user is likely to enjoy based on those preferences, is “interactive.” If it is interactive, Yahoo! has no statutory license to perform the sound recordings, and it’s a copyright infringer. If it isn’t interactive, Yahoo! has a statutory license, and isn’t liable. The judge denied both parties’ motions for summary judgment, finding that the question of interactivity was a fact question the jury should decide.

From the Billboard report, it sounds like the quality of lawyering was high on both sides, with Yahoo! emphasizing that there’s no danger of piracy and the record companies emphasizing the plain meaning of the text of the statute. I’m particularly impressed that Yahoo! convinced the jury that a webcast sent to a user based on that user’s preferences was not “a program specially created for the recipient.”

April 27, 2007

Legislation Watch: One Good, One Bad

It’s been an eventful 24 hours in copyright. Jack Valenti died, leading to some nice encomia — and leading one wag to comment, “I suppose now he’ll find out how the Boston Strangler felt about being compared to a VCR.”

And two copyright bills were introduced in Congress: one good, one bad.

First, the bad. Rep. William Delahunt (D-MA) has reintroduced a bill that would extend copyright to fashion designs. If you’re wondering why this is a bad idea, read Chris Sprigman and Kal Raustiala’s law review article on the subject, “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design.”

Second, the good. Reps. Jay Inslee (D-WA) and Don Manzullo (R-IL) have introduced H.R. 2060, the “Internet Radio Equality Act.” The bill would have several effects on the rates paid by webcasters for their digital transmissions of sound recordings:

  • The bill would nullify the March 2, 2007 rate determination issued by the Copyright Royalty Board, which would otherwise double webcasting rates over the next five years.
  • With regard to commercial webcasters, the bill would:
    • Set an interim rate for webcasts made between 2006 and 2011. Webcasters could choose to pay $0.0033 per hour of sound recordings transmitted to a single listener or 7.5% of gross revenues “directly related to” webcasting.
    • Set a new standard that the Copyright Royalty Board will use to set rates for webcasts made after 2011. Instead of the current standard — in which the rates are those that “would have been negotiated in the marketplace between a willing buyer and a willing seller” — the bill directs the Copyright Royalty Board to set a rate based on the factors set forth in 17 U.S.C. 801(b)(1). Those factors include the furthering the public interest in access to copyrighted works, delivering a fair return to the copyright holder, recognizing owners’ and users’ respective roles in making works available to the public, and avoiding unnecessary disruption of existing industry practices.
  • With regard to non-commercial webcasters, the bill would:
    • Set an interim rate. For each year between 2005 and whenever the parties agree on a rate or the Copyright Royalty Board sets a new rate under the new standard set forth below, non-commercial webcasters must pay 150% of whatever they paid in 2004.
    • Set a new standard. The bill would add sound recordings to the kinds of works covered by the collective bargaining provision of section 118, and would add all “non-profit institution[s] or organization[s]” to the class of users who can take advantage of section 118. (My reading of this is that groups of noncommercial webcasters could bargain collectively with SoundExchange, and if they can’t come to an agreement, the Copyright Royalty Board would set a rate based on the rate negotiated by other groups of noncommercial broadcasters and webcasters.)

  • The bill orders three studies:
    • One by the National Telecommunications and Information Administration on the competitiveness of the Internet radio marketplace and the effects of webcasting royalties thereon.
    • One by the FCC on the effects of webcasting royalties on localism, diversity, and competition.
    • One by the Corporation for Public Broadcasting on the effect of webcasting royalties on public radio stations.

While it’s almost certain to be modified before passage, the bill represents a great step forward in coming up with a set of webcasting royalty rates that fairly compensate copyright holders without destroying webcasters.

April 26, 2007

S.D.N.Y.: A Music Download Is Not A Public Performance

Let’s say you download a song from the iTunes Music Store. Everybody agrees that you’ve made a copy of the song: it’s sitting right there on your hard drive. But, in transmitting the song to you, did Apple publicly perform the song, too?

It seems like a silly question, but some ambiguities in the language of section 101 of the Copyright Act have allowed some copyright holders to argue that Apple needs a license not only to reproduce the song, but to perform it publicly, too.

A little over two years ago, I posted about ASCAP’s attempts to license podcasting. This was surprising, since podcasts are reproductions (you download them), not performances (you don’t stream them). ASCAP argued — wrongly, I thought — that podcasts are performances, too, since they’re transmitted over the Internet to the user.

ASCAP made the same argument to AOL, asking it to take a license for the performances involved in its music download service. The dispute ended up in federal court in the Southern District of New York. (Wonks: This was a rate court proceeding pursuant to the ASCAP consent decree.)

Via Sherwin Siy at Public Knowledge comes news that the court has ruled in favor of AOL, holding that “the downloading of a digital music file, in and of itself, does not” constitute a public performance under the Copyright Act.

The statute says that to “perform” a work means “to recite, render, play, dance, or act it, either directly or by means of any device or process.” 17 U.S.C. 101. The statute defines “public performance” to includes “to transmit or otherwise communicate a performance . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

Looking at the dictionary definitions of those words, along with the statute’s legislative history, the court found that “in order for a song to be performed, it must be transmitted in a manner designed for contemporaneous perception.”

I think that’s exactly right. The key factor is the intent of the alleged infringer, as expressed through his choice of technological means for transmitting the copyrighted work. If the work is transmitted in a manner designed for contemporaneous perception and not for storage — like streaming audio — then there’s a performance, and not a reproduction. If the work is transmitted in a manner designed for storage and not for contemporaneous perception — like downloading an audio file — then there’s a reproduction, and not a performance.

Because the raw audio data itself doesn’t tell us anything about whether the transmission is “designed for contemporaneous perception,” we have to look to metadata, file headers, and other indicia of the purpose for which the data is being transmitted. There isn’t always a clear answer to this question — consider, for example, a case in which a user clicks on a link to an MP3 file on the web when the user has a broswer plugin installed that plays back the song as it is being downloaded and doesn’t keep a permanent copy on the hard drive. But just because the answer isn’t always easy doesn’t mean we should adopt ASCAP’s bright-line rule that every transmission is a public performance.

It is to be hoped that this decision will bring some certainty to the online music licensing marketplace, perhaps eliminating the need for legislation mooting the stream-versus-download question.

March 16, 2007

University of Wisconsin Stands Up to RIAA

A student at the University of Wisconsin – Madison forwarded to me the email quoted below, which was apparently sent to all students. It makes me proud to be an alumnus of UW: the University is refusing to forward to students the vaguely extortionate “settlement” letters the RIAA has been asking universities to send to their students, and recognizes that not all unauthorized P2P sharing of copyrighted works is illegal.

From: UW-Madison Office of the CIO
Date: Mar 16, 2007 11:54 AM
Subject: UW-Madison copyright compliance notice

The recording industry is threatening lawsuits against those who may have engaged in illegal file sharing. They are currently targeting students who live in university residence halls. Recently, UW-Madison and other universities have been notified that they will receive settlement letters that are to be passed on to the individuals whom the senders believe to be guilty of copyright infringement. Consistent with current network management procedures and our understanding of federal law, UW-Madison does not plan to forward these letters directly to campus network users. We will, of course, comply with a valid subpoena.

However, if the UW-Madison is given cause to believe that a student, faculty or staff network user may have infringed on copyrights, it will take action. University network policies empower the CIO to terminate that person’s network access until the matter is resolved. The Dean of Students office (for students) or supervisors (for employees) will be notified and other disciplinary action may be taken, as appropriate.

Unauthorized peer-to-peer file sharing of copyrighted works is illegal in many circumstances, and a violation of the university’s Appropriate Use Policy. Please be advised of your rights and responsibilities under these rules. For more information, see: security/policies/ appropriate_use.asp

Ken Frazier
Interim CIO,

UPDATE, 19 March: A story in the Badger Herald has this great quote from a UW IT department spokesman:

“These settlement letters are an attempt to short circuit the legal process to rely on universities to be their legal agent,” Rust said. “It basically says, you are illegally downloading and/or sharing information; and before we take legal action, you can remedy this situation and pay for the music or movies that you’ve downloaded.”

Rust said DoIT receives about 10 to 20 cease-and-desist notices per day, which they are obligated to forward to their users. The notices are only warnings, Rust added, but the settlement letters brought on by the Recording Industry Association of America are more of a threat.

The settlements are usually around $700 per instance, but could be as much as $3,500, according to Rust.

“So you can imagine some people have probably come to that website with their credit card and paid it,” Rust said. “We do not want to be a party to that; we are not the legal agent for the recording agency, nor do we aspire to (be).”

UPDATE, 20 March: The Wisconsin State Journal has this article on UW’s rejection of the RIAA’s “settlement letters.” Also, Slashdot has run an item linking to this post.

March 7, 2007

The Copyright Office Comes to California: Music Licensing

I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

Now, Tanya Sandros on Music Licensing.

We expect House subcommittee hearings this month.

[She talks about the history of section 115 and the DPRSRA amendment.]

But back in 1995, there wasn’t a vision of how digital music now functions. iTunes is the model example of how we get DPDs, but there’s also webcasting, which has brought out a lot of unforeseen questions.

The key issue is the difficulty in licensing activities that implicate both the reproduction and the public performance right — for example, streaming. [Disagree! Streaming is just a performance, not also a reproduction!] There’s no easy way to clear rights for reproducing sound recordings as of now.

There are numerous problems with section 115 as it stands now, from the perspective of the users and the content holders. It’s hard to find copyright owners, the procedural requirements can be difficult to comply with, new technologies don’t always fit in the 115 scheme, and setting new rates (like percentage of revenue) is difficult.

There were numerous meetings with stakeholders. There was general agreement as to the need for a blanket license from a single agent. There’s no agreement on scope, controlled composition clauses, or self-licensing provisions.

The Office proposed a 114-style blanket license for all rights implicated through an “MRO”. [I talked about this here.]

This was not well-received; the parties took a different tack and got S1RA introduced. There’s a good fair use case that ephemeral copies are fair uses, but that doesn’t give the business community enough certainty. [This makes sense, but I'm still worried about licensing for ephemeral performances as evidence that Congress intends them not to be fair use.]

Then came the PERFORM Act. Would have changed all 114 rates to fair market value (including preexisting services), and would have exempted ephemeral copies, but also would have required 114 licensees to put DRM on their streams to prevent recording.

There’s also HR 5055, which has nothing to do with music licensing. It’s a sui generis fashion design protection. It’s like vessel hull protection. [It's outrageous.] We didn’t endorse this bill. [Good.] We didn’t think the case had been made that there’s a need for the bill.

We’re unlikely to see this again, though the auto industry is pushing for protection.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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