It’s a very wide-ranging report.  (And bonus points for the first footnote being to Johnson & Post, an old favourite in cyberlaw).  In particular, it should be noted that one of its significant concerns is the type of non-negotiated agreement that governs the relationship between a provider and a user after the purchase of protected creative material, as well as the more conventional territory of the contractual situation of creators, performers and so on.  I intend on using it as student reading material for IT/Internet law and also for a module we teach on Commercial Aspects of Media Law.

Here are some points that I found particularly interesting or useful, in no particular order.  It’s a very thorough piece of work – although it would have been fun to see what the authors made of the contract/license debate, which is certainly coming to a head in a number of US cases (e.g. Jacobsen v Katzer, now settled), or the EULA issues raised in MDY v Blizzard and the issues highlighted through Amazon’s Orwellian mess.  But this could well have been beyond the tender, so we should turn to my recommendations and highlights, which are (with a bias towards paper 3 on end user / Internet issues given my own interests):

• Helpful ‘creator profiles’ of two examples (an electronica artist and a children’s book illustrator) (Kretschmer, paper 2, pp. 46-7 of full report)
• A table on ‘unfair DRM’ (Derclaye & Favale, paper 3, p. 139)
• An analysis of exceptions in the US and EU, with further discussion on member state transposition in UK, Ireland and Portugal (paper 3, pp. 87-104)
• A very readable summary of the role of contracts in restricting ‘user freedoms’ (paper 3, pp. 105-108)
• The wonderfully tantalising comment (after discussion of click-wrap cases in the US) that “rulings by European courts on similar circumstances are still to come” (paper 3, p. 116).  And the footnote to this point discussed the NPG/Wikipedia issue with links from Technollama (Andres Guadamuz) and Francis Davey!
• An argument about the application of ‘fairness’ criteria to copyright contracts (whether through the removal of the exclusion of copyright from the Unfair Contract Terms Act or otherwise (paper 2, p. 77 and paper 3, pp. 122-124).  [On this, note that BIS is currently consulting on the UK's position regarding fairness in the European directive, informed in particular by the Supreme Court's decision in OFT v Abbey National]
• A roundup of developments and academic work on collective societies and copyright, highlighting the cost of administration and the ultimate regulatory role of these agreements (Watt, paper 1, pp. 35-37 )

Full report from the SABIP website.

The talk was divided into five major sections: the idea of dual use technologies, a review of the case law, a discussion of the relationship between creativity and innovation, an argument regarding three asymmetrical issues, and a case for the benefits of P2P and similar technologies.

I’m going to assume that readers are relatively familiar with the first topic (a description of how P2P works) and with the inglorious history of cases like Napster, Aimster and Grokster. Carrier criticised the direction of these cases, reserving particular criticism for the idea of inducement as seen in the Supreme Court’s opinion in Grokster. For the third section, he touched on these points: alternative reason for the apparent decline in CD sales, alternative remedies (to secondary-infringement litigation) such as direct infringement cases, legislative lobbying and technological protection measures, differing concepts of creativity outside major record labels, and – crucially – the role of new technologies as disruptive innovation creating or contributing to new markets.

The next section dealt with what were argued to be three asymmetries, innovation, error cost and litigation. Taking them in order, the discussion of innovation suggested that the less-tangible non-infringing uses (and associated business models) lose out to the heavily emphasised perils of the infringing use; the error costs, borrowing from competition law, in this context highlight the cost of a potentially erroneous decision to stifle the new services; in terms of litigation, this is a particular problem when new entrants lack the deep pockets of incumbents for protracted litigation.

In conclusion, Carrier pointed to the possible benefits of P2P, mentioning again the possible move away from established industry ‘tastemakers’ and the efficiency of BitTorrent as a distribution method, but also referred to ideas like P2P search as an alternative to Google’s strong position. A very lively Q&A included the idea of dual-use technologies as a platform for free expression, problems with policy-making and regulatory capture, how to define innovation and creativity, quantifying the error cost of the ‘wrong’ decision, the differences between music and movie industries, and the ability of market leaders to be both incumbent and insurgent. It was an interesting argument, possibly easier to apply in the case of the music industry than others, but with useful illustrations of the relationship between IP and antitrust/competition law and the ultimate purpose(s) of copyright legislation. However, it is also quite the reminder how far the current parliamentary debate in the UK on the copyright provisions of the Digital Economy Bill is from the various provocative ideas that have been circulating in the academic side of copyright for quite some time now.

The email contained a picture of a lovingly-painted bus, the cover of the upcoming album, and a link for further information. At the link, a gentle but persuasive plea for contributions is made. But this is not charity: this is a clever sales pitch. Using the Kickstarter website (which allows pledges for projects to be gathered in a central location), fans can choose anything from $7 (digital download of a live set) or $20 (a book of lyrics, music, photos etc for the forthcoming album, Arrow) to $10000 (a trip to New York, a visit (and dinner) to the band’s house and a private gig in the same location, though there are some alternatives at this level). Some options are presumably a little tongue-in-cheek (selling of souls, for example) and others are quite quirky ($2500: [various benefits from lower levels and] “a song about your girlfriend or boyfriend, it can be funny or sad. We’ll do a home recording of it after talking to you and learning about him/her. Then we’ll perform it and post it on youtube.”) The increasing-rewards idea is quite common for the support of public broadcasting in the US, though less familiar in the case of music. The target in this case is a reasonable-sounding $5000. Does this model scale well? Does it include a good bargain? (In the case of charitable donations, you can often figure out the real value of the sweetener by looking at the tax-deductible element; not so here). If you received an email like this, would you bite?

Anyway, the tremendous three are:

Greg Milner, Perfecting Sound Forever (purchased)

From our CD collections to iPods bursting with MP3s to the hallowed vinyl of DJs, recordings are the most common way we experience music. Yet their ubiquity has deafened us to how our understanding of music is shaped by the processes that create them. “Perfecting Sound Forever” tells the story of recorded music from Thomas Edison’s claim, in 1915, that he could perfectly capture the sound of a live performance, to the digital tools used today which create the illusion of performances that never were. Along the way, Greg Milner introduces the innovators, musicians, and producers – from Les Paul to Phil Spector to Neil Young – who have affected the way we hear our favorite songs and describes the major achievements, breakthroughs and failures in sound technology. Exploring the balance that recordings strike between the real and the represented, Greg Milner asks the questions which have divided sound recorders for the past century: should a recording document reality as faithfully as possible, or should it improve upon or somehow transcend the music it records? What does the perfect record sound like? The answers he uncovers will change the way we think about music.

Elijah Wald, How the Beatles Destroyed Rock n Roll: An Alternative History of American Popular Music (library copy)

“There are no definitive histories,” writes Elijah Wald, in this provocative reassessment of American popular music, “because the past keeps looking different as the present changes.” Earlier musical styles sound different to us today because we hear them through the musical filter of other styles that came after them, all the way through funk and hiphop. As its blasphemous title suggests, How the Beatles Destroyed Rock ‘n’ Roll rejects the conventional pieties of mainstream jazz and rock history. Rather than concentrating on those traditionally favored styles, the book traces the evolution of popular music through developing tastes, trends and technologies–including the role of records, radio, jukeboxes and television –to give a fuller, more balanced account of the broad variety of music that captivated listeners over the course of the twentieth century.

Eric Harvey, The Social History of the MP3 (on the interweb at pitchfork.com, and found via the Institute for the Future of the Book)

The cassette “crisis” seems quaint when compared to the rise of the mp3. The first widespread music delivery technology to emanate from outside industry control, mp3s, flowing through peer-to-peer networks and other pathways hidden in plain sight, have performed the radical task of separating music from the music industry for the first time in a century. They have facilitated the rise of an enormous pirate infrastructure; ideologically separate from the established one, but feeding off its products, multiplying and distributing them freely, without following the century-old rules of capitalist exchange. Capitalism hasn’t gone away, of course, but mp3s have severely threatened its habits and rituals within music culture. There is nothing inherent or natural about paying for music, and the circulation of mp3s > through unsanctioned networks reaffirms music as a social process driven by passion, not market logic or copyright. Yet at the same time the Internet largely freed music from its packaged-good status and opened a realm of free-exchange, it also rendered those exciting new rituals very trackable. In the same way that Facebook visually represents “having friends,” the mp3s coursing through file-sharing networks quantify the online social life of music by charting its path. The social routines that take place around online music are visible data– which makes them much more susceptible to intellectual property statutes than was the case with cassettes or CDs.

Anyway, the first is the ‘future of recorded music’, on which I’ve seen three overlapping contributions of late (and have one whimsical remark of my own). By coincidence (or perhaps not), two are by people I have mentioned in past posts (Drummond, Adams) primarily in their capacities as artists rather than analysts, and thus they have been particularly interesting to think about wearing my (slightly more) serious hat.

On Radio 3 last week, Bill Drummond (wiki; latest project, The17) spoke about the end of recorded music (and the continuing life of live music), also answering questions from a studio audience (part of the Free Thinking festival) on a wide range of topics. It was an utterly fascinating talk, well handled by Radio 3, written up reverently in the Guardian, and absolutely a recommended listen. You should be able to listen to it here, including outside the UK, but only until mid-week (if you want to keep it for posterity, you don’t need me to tell you how to do that). I’m not even going to begin to write a summary, as Drummond operates at approximately one new idea per second…

John Adams‘ recent autobiography, Hallelujah Junction : Composing An American Life, includes a useful chapter on technology and music (and reveals that his son introduced him to Aphex Twin – what I wouldn’t give to see that collaboration). Reflecting on the evolution of classical music recordings and also the on-stage use of electronic instruments, Adams highlights the difficulties and opportunities of each new technological wave. He’s critical of some aspects of the use of technology in live performance, but also adamant (sorry) that there are advantages to synthesisers, sound design, amplification, microtonal pitches. (Chapter 10, Machine In The Garden).

The New York Times wrote last month about an intriguing little iPhone / iPod Touch application, Tap Tap Revenge. Essentially Dance Dance Revolution with fingers instead of feet (or Guitar Hero without the guitar), I’ve had it for a few months, and seeing it break through to mainstream attention came as a bit of a surprise, as I hadn’t initially thought about it as a significant development. One thing about it that raises a load of policy issues is how the application is being used as a way to promote new music – as well as the preset songs, new songs (along with various tie-ins and promotions) are made available on a regular basis. I’ve discovered a few bands through it, although the quality is a bit up and down (there’s a new electronica-specific one, Tap Tap Dance, that I’ve yet to try, but is obviously more targeted at a particular audience). One debate I have an interest in is the ‘shelfspace’ one that has been an enduring feature of Canadian broadcasting policy – so for example, Canadian music quotas for pop radio in one era becomes a percentage of available and featured titles in video-on-demand systems. Seeing alternative channels open up like this is an interesting way to revisit those questions. It’s also interesting when you see the difficulties that music retail stores (like poor Zavvi) have encountered.

On a personal note: Apple’s decision to go DRM-free, announced at Macworld (nearly two years after Thoughts On Music), is something I’ve waited for for a while. Despite having used an iPod (and a series of Macs) for a long time, my practice has continued to be purchasing CDs (far too many) and format-shifting, in most cases (which the Gowers Review said should be legal, good news to George W Bush of course). I appreciate I’m not the typical consumer here, having an interest in the legal dimension, but DRM-free iTunes is the kind of thing that will have a real, measurable impact on my own purchasing habits.

Next week: Television

One of my unfulfilled ambitions is to organise, someday, a Copyright Concert – an evening of music that has been the subject of litigation (probably broadly defined so as to cover trademark too, and non-IP contractual disputes between musicians, record labels, etc). We’d have My Sweet Lord, A Whiter Shade Of Pale, Barbie Girl, Pretty Woman (the dirty version of course), to name but a few. Maybe Coldplay will join that shortlist. What would you add?

One thing listed (and passed to me via email, too), looks particularly interesting:

Musicians, fans and online copyright
2pm, 19 March, London School of Economics

Is home downloading killing music? Should Internet Service Providers
monitor customers to try and spot copyright infringement, and
disconnect downloaders? Do musicians need new laws to benefit from
the opportunities of the Internet?

Join us at this FREE event to debate these questions and more with
leading copyright thinkers from the music world, government, consumer
groups and universities. Confirmed speakers include John Kennedy (CEO
of IFPI), Paul Sanders (CEO of PlayLouder), Becky Hogge (Open Rights
Group), Lilian Edwards (Southampton University), Rufus Pollock
(Cambridge University) and Michelle Childs (Knowledge Ecology
International).

Unfortunately I can’t make it over to London (I’m off to Glasgow the following week for BILETA), but if you’re around, you should go. Great group of speakers.

Finally, advance notice (or registration reminder) that the Berkman Center’s 10th anniversary conference is taking place on May 15th-16th in Cambridge, MA (of course). This one, all things going well, I will be at, and registration is open, with a generous discount for students, if you are fortunate (or unfortunate) enough to be one.

In this case, the question was whether the European directives on copyright law and on electronic commerce (and relevant provisions of the new Charter of Fundamental Rights) required a member state to provide for the disclosure (by ISPs, to rights holders) of the identities of Internet users. And the answer, it seems, is that, in the context of other European directives on privacy and data protection and those fundamental rights again, such is not *required*, although it’s not entirely clear whether member states are *permitted* to do so anyway. Such is reserved for another day, with the general warning that the factors are the various directives, fundamental rights, and proportionality. That means, though, that the local court (Spain) has to figure out whether the disclosure is justified in this particular case (it was, in that characteristic feature of European Union law, a preliminary reference to the ECJ). I did comment on Damien’s post back in the summer that the opinion of the Advocate General was just that – an opinion – but it seems that the Court has followed it quite closely.

The Irish caselaw on this point is an ex tempore decision, EMI v Eircom. The position here is thus that details can be handed over with a court order. I wonder if there is any scope for a future case along similar lines being heard in the context of the more detailed criteria set out by the ECJ? Certainly, the situation in that case was not a satisfactory hearing of all the legal issues (including the fundamental rights or proportionality impact) that one would think that the ECJ’s line would now demand. (However, if I understand it correctly, the court’s power to grant such an order is a common law one (albeit in the context of the copyright offences where they exist), not flowing directly from copyright law nor from the EU directives as implemented domestically?)

• Content and Carrier
  
• IP Kitten
• OutLaw
• Technollama
• Ray Corrigan
• Lilian Edwards

The Gallery itself is small in size, but big in ambition and scope. For example, this week’s festival includes a whole range of talks, walks, events and demos; most are related to light (you’ve just missed some stuff on rock concert visuals, would love to have seen that) but there’s more to come, and other things too in the general science-and-society vibe that is in my view one of the most important areas that the Gallery must work in. In that regard, I’m looking forward to this talk (tickets necessary, €5) on Thursday night, if I can make it :

What are the factors and conditions that contribute to innovation? How are important problems found and solved? How can insights from the arts, science and creative industries be leveraged by business to develop an innovation environment? The Science Gallery presents a unique opportunity to discuss the next generation of idea-environments with David Edwards, founder of Paris’s Le Laboratoire and Professor of Biomedical Engineering at Harvard University, Colm Long, Director of EMEA Online Sales & Operations at Google and leading Irish American venture capitalist Terry Maguire and facilitated by Irish Times technology columnist, Karlin Lillington. The talk coincides with the launch of David Edwards’ new book ‘ArtScience: Creativity and the post-Google Generation’ (Harvard University Press 2008). The talk will be followed by a book signing. (taken from a bit of the website that I can’t deeplink to, and link to book added by me)

Another outpost of Lightwave is further down the river at Grand Canal Dock (home to the Martha Schwartz-designed square at the original dock*, soon to be home to a theatre designed by Daniel Liebeskind and much more besides). The Schwartz square itself has a strong light theme (including bright red poles sticking up into the sky) and added to the mix for the week is The Hive (KMA), a sound and light installation (using a lot of Philip Glass or something that sounds like him!) that is pictured (cameraphone, with tweaking), left. It involved projection of beams on the ground and a lot of hyperactive children and a sensor…


Anyway, check it all out at sciencegallery.com and around Dublin 2 all this week.

PS First attempt at this post vanished. Anyone else having trouble with Safari of late? Keeps crashing for no particular reason.

PPS Then I couldn’t get into the blog to post the second version. Conspiracy, I tell you.

* which itself was the location for the legendary video for Gloria by U2, one of the first U2 singles videos, when the area looked very different to how it does today. Definitely scope for some sort of music-on-a-barge project to mark it…

First of all, there’s this repeat of a classic This American Life show. I try not to blog about TAL constantly (this here was one of my lapses) – I resist the urge after each episode, otherwise this would be Lex Devoted Radio Fan and it might be a bit boring to read. However, this show – rightly beloved by listeners – is worth mentioning, not least for its synchrony with the other material mentioned below.

“Mapping” (go listen to it!) deals with the age-old question of maps and representation of the world, and in the traditional TAL fashion, is divided into five Acts. The innovation, as I saw it (or heard it, or perhaps even sensed it) was to have an act for each of the five senses. So, for example, ‘taste’ was a piece on how a writer, Jonathan Gold, compiled a ‘food map’ of Pico Boulevard in Los Angeles.

The act on ‘sound’ was the one that caught my particular attention, and not just as a result of the (perfect) use (at 13.30 and 15.15) of Telephone and Rubber Band (by the Penguin Café Orchestra) as the musical bed for part of the piece. This piece featured a short but compelling discussion (with a guy called Toby Lester) on how each household object has a pitch, and how they interact (e.g. producing minor chords or even the Devil’s Chord (devil’s interval / tritone / augmented fourth) of lore.

These ideas were picked up (in my head, at least) in the first episode of the BBC’s The Sounds of Science show (Radio 4). This was a lot of fun – coming back to the Devil’s Chord but also discussing key/scale/tone, Western v non-Western tradition, dissonance (with lots of spice/food metaphors) and more.

The Observer, too, got in on the game (last Sunday), reporting on a study in the Ecologist of the aspects of the modern environment that people find irritating. Some of these, too, are related to sounds and music. A little curmudgeonly, but prompting interesting reflections and connections with the two radio pieces.