IASPM International Conference

Late last year I received an offer to present my paper 'The Evolution of Culture: Is Political Music Still Being Heard?' at the International Association for the Study of Popular Music's biennial conference in Liverpool in July this year.

I submitted an abstract of my paper to Carlo Nardi, the convenor of the conference theme relating to Popular Music and Technology in a Historical Context. This section of the conference will consider the 'technological impacts upon popular music practices, including questions from cultural, aesthetic, ideological, economic, sociological, historical, legal or musicological perspectives'.

This is an exciting opportunity and I am delighted to be attending the conference. There is not much information about the conference on their website at the moment but that should change very soon so take a look if you are interested: IASPM International Conference. You can read about the other conference themes here.

Tenenbaum

The RecordingIndsutryvThePeople Blog is reporting that oral argument in the Tenenbaum case will be narrowcast and streamable from the Berkman Centre's website on the 22 January 2009. A website has also been set up which enables people to keep in touch with developments in the case.

More Information:
RecordingIndustryvThePeopleBlog, January 22nd oral arguments in SONY BMG Music v. Tenenbaum will be televised over the internet (14 January 2009) <http://recordingindustryvspeople.blogspot.com/2009_01_01_archive.html#3145693789782359556> at 15 January 2009

Joel Fights Back <http://joelfightsback.com/> at 15 January 2009

A Lessig Trilogy

Three great clips that have been posted on the net in recent times featuring Lawrence Lessig:

His last and latest presentation on Remix:
http://www.lessig.org/blog/2008/12/wow_peace_declared.html

Lessig on the Colbert Report:
http://www.lessig.org/blog/2009/01/let_the_remixes_begin.html

Lessig@Harvard on Creative Commons:
http://cyber.law.harvard.edu/events/2008/12/creativecommons

DRM Dies Another Death

Finally Apple has announced that it will ditch DRM on all digital music sales. Effective immediately for the majority of tracks sold in the United States, songs can be downloaded in the unprotected AAC format. This is a significant development albeit fairly predictable given that other digital music stores such as Amazon, WalMart, Napster and Yahoo are already selling unprotected tracks.

Digital Rights Management, code added to a track which prevents users from burning unlimited CDs, required authorisation for playing songs on computers other than the one on which the track was purchased, created compatibility problems with mp3 players and essentially did more harm than good in getting people to transition from file sharing to legitimate music purchases, will be missed by no-one.

The shift is not without consequences however with variable pricing also being introduced to the iTunes store. There is likely to be some price increase with new songs available for $1.29 each rather than the flat $0.99 cent rate. Older tracks will now cost less, however it appears this was used as a trade off by the record labels to ensure an increase in profits.

For existing customers paying an additional $0.30 will enable them to replace songs they have already purchased with unprotected versions. In my opinion this is not only too expensive but really rather rude – DRM protected songs should never have been sold in the first place and should be replaced free of charge. When Yahoo removed protection from its catalogue existing customers were given vouchers to compensate for the transition to the unprotected format.

Questions remain as to whether DRM will be removed in other countries as well. In Australia, at the moment, the only major digital music store without DRM is eMusic which does not sell any tracks from major label artists. Amazon remains unavailable to Australian customers and a quick check of the iTunes Australia store this morning did not reveal any changes. As with most things digital and legal Australia may have to wait some time before it has its chance to enjoy music without these constraints.

Further Reading
Wall Street Journal, Apple Changes Tune on Music Pricing (7 January 2009) <http://online.wsj.com/article/SB123126062001057765.html> at 8 January 2009

Digital Music News, Finally: iTunes Store Goes DRM-Free, 99-Cents Going Variable (7 January 2009) <http://www.digitalmusicnews.com/stories/010509apple> at 8 January 2009

TechDirt, As Rumored, Apple Gives Record Labels Variable iTunes Pricing In Exchange For Ditching DRM (6 January 2009) <http://www.techdirt.com/articles/20090106/1039003297.shtml> at 7 January 2009

ArsTechnica, Apple, labels both win with DRM-free iTunes, tiered pricing (6 January 2009) <http://arstechnica.com/journals/apple.ars/2009/01/06/apple-labels-both-win-with-drm-free-itunes-tiered-pricing> at 7 January 2009

ZeroPaid, iTunes Going DRM-Free (6 January 2009) <http://www.zeropaid.com/news/9945/iTunes+Going+DRM-Free> at 7 January 2009

The Register, DRM now dead, as Amazon snags Sony (11 January 20080 <http://www.theregister.co.uk/2008/01/11/amazon_sony_music_drm_now_dead/> at 20 January 2008

Digital Music News, Warner Music Ditches DRM on Amazon, Stock Struggles Above $6 (28 December 2007) <http://www.digitalmusicnews.com/stories/122807warner> at 11 January 2007

Digital Music News, It's Official: Sony BMG Delivers MP3s to Amazon (10 January 2008) <http://www.digitalmusicnews.com/stories/011008sony> at 20 January 2008

ArsTechnica, Wal-Mart joins MSN and Yahoo, leaves DRM servers online (10 October 2008) <http://arstechnica.com/news.ars/post/20081010-wal-mart-joins-msn-and-yahoo-leaves-drm-key-servers-online.html> at 12 October 2008

TechDirt, Surprise, Surprise: WalMart Changes Its Mind, Keeps DRM Servers Running (For Now) (10 October 2008) <http://www.techdirt.com/articles/20081010/0020522511.shtml> at 12 October 2008

EFF Deeplinks, And Walmart Makes Three: Another Music Service Plans to Shut Down DRM Support (28 September 2008) <http://www.eff.org/deeplinks/2008/09/and-walmart-makes-three-another-music-service-plan> at 5 October 2008

Digital Music News, Wal-Mart Moves On; Ditches Support on DRM Downloads (30 September 2008) <http://www.digitalmusicnews.com/stories/092908walmart> at 5 October 2008

TechDirt, Wal-Mart Ditches DRM... And Lots Of Major Label Music With It (8 April 2008) <http://www.techdirt.com/articles/20080408/003857784.shtml> at 13 April 2008

Digital Music News, Wal-Mart Reaffirms Commitment to MP3s; Standoff Continues (7 April 2008) <http://www.digitalmusicnews.com/stories/040608walmart> at 8 April 2008

Digital Music News, Yahoo Music Makes Good; Offers DRM-Free Replacements, Refunds (31 July 2008) <http://www.digitalmusicnews.com/stories/073008yahoo> at 7 August 2008

SiliconValley/Associated Press, Yahoo offers coupons for songs that stop working when it shuts download service (30 July 2008) <http://www.siliconvalley.com/news/ci_10044573?nclick_check=1> at 6 August 2008

TechDirt, Yahoo Offers Refunds Or DRM-Free Music In Exchange For Shutting Down DRM Servers (29 July 2008) <http://www.techdirt.com/articles/20080728/1455551813.shtml> at 31 July 2008

CNet News, EFF: Yahoo Music should compensate customers (24 July 2008) <http://news.cnet.com/8301-1023_3-9999244-93.html> at 28 July 2008

EFF Deeplinks, Here We Go Again: Yahoo! Music Throws Away the DRM Keys (24 July 2008) <http://www.eff.org/deeplinks/2008/07/here-we-go-again-yahoo-music-throws-away-drm-keys> at 28 July 2008

Digital Music News, About Those Yahoo Music Unlimited Downloads You Bought... (25 July 2008) <http://www.digitalmusicnews.com/stories/072408yahoo> at 28 July 2008

TechDirt, Did Yahoo Not Pay Attention To What Happened When Microsoft Pulled The Plug On Its DRM Server? (24 July 2008) <http://www.techdirt.com/articles/20080724/0341381775.shtml> at 28 July 2008

ArsTechnica, DRM still sucks: Yahoo Music going dark, taking keys with it (24 July 2008) <http://arstechnica.com/news.ars/post/20080724-drm-still-sucks-yahoo-music-going-dark-taking-keys-with-it.html> at 25 July 2008

ZeroPaid, Rhapsody Opens DRM Free Music Store (1 July 2008) <http://www.zeropaid.com/news/9599/Rhapsody+Opens+DRM-Free+Music+Store> at 4 July 2008

TechDirt, Microsoft Keeps DRM Servers Alive For Now; Won't Screw Over Own Customers For A Few More Years (19 June 2008) <http://www.techdirt.com/articles/20080619/0907281455.shtml> at 26 June 2008

Digital Music News, Microsoft: We'll Support Your Downloads After All (17 June 2008) <http://www.digitalmusicnews.com/stories/061808msft> at 20 June 2008

ArsTechnica, DRM sucks redux: Microsoft to nuke MSN Music DRM keys (22 April 2008) <http://arstechnica.com/news.ars/post/20080422-drm-sucks-redux-microsoft-to-nuke-msn-music-drm-keys.html> at 27 April 2008

Digital Music News, MSN Music: The DRM Aftertaste Really Lasts... (24 April 2008) <http://www.digitalmusicnews.com/stories/042308msn> at 26 April 2008

Digital Music News, Microsoft's Final 'Up Yours' To Those Who Bought Into Its DRM Story (23 April 2008) <http://www.techdirt.com/articles/20080422/234401923.shtml> at 26 April 2008

ZeroPaid, Napster Comes Full Circle, Launches DRM-Free mp3 Store (22 May 2008) <http://www.zeropaid.com/news/9509/Napster+Comes+Full+Circle%2C+Launches+DRM-Free+MP3+Store> at 5 June 2008

Digital Music News, Napster Gets It Done: MP3s For Everyone (19 May 2008) <http://www.digitalmusicnews.com/stories/052008napster> at 21 May 2008

Billboard.biz, Napster Goes DRM-Free (20 May 2008) <http://www.billboard.biz/bbbiz/content_display/industry/e3i9189f73c48e7dd51669d4bee4dc1d1b1> at 21 May 2008

TechDirt, Collapse of Music DRM Continues; DRM Customers Still Screwed (20 May 2008) <http://www.techdirt.com/articles/20080520/0551131178.shtml> at 21 May 2008

Technologizer, 25 Arguments for the Elimination of Copy Protection (13 October 2008) <http://technologizer.com/2008/10/13/copy-protection/> at 20 October 2008

Off the Grid

I am taking some time off from blogging for the next couple of weeks. Unless something major happens (record labels have bad timing!) there wont be much happening on this site. I will still post a monthly summary on OpenContentAustralia of the articles I have read this month so go there if you're missing me too much. I hope you enjoyed the Year in Review series - it was a mamoth effort on my part with over 1600 articles to condense but it is done for another year. Thank you for taking the time to read this space it has been an excellent year and I have enjoyed hearing from you all. I wish you and your families a wonderful Christmas and a happy New Year - stay safe,

Sal

Year in Review: Network Neutrality

This year saw further developments in the United States regarding the neutrality of the internet with the FCC finding against the traffic management policies of Comcast, further support for the introduction of legislation requiring ISPs and content owners to respect the principles of an open internet and the introduction of data caps and pricing structures in the United States.

The argument that takes place with respect to the neutrality of the internet is one which sees essentially two differing approaches to the management of internet traffic.

On the one side proponents argue for an open internet through the use of end to end architecture and equality of priority of packets regardless of the type of communications protocol they use.

On the other ISPs and content holders seek to elevate some forms of traffic over others with ISPs charging money to allocate priority. The money is used to ensure that the infrastructure of a network is increased to cope with more and more traffic. Companies such as Microsoft, Google and YouTube are among those who are most likely to need or want priority.[1]

It has been widely recognised that this would have a dramatic impact on the openness of the internet with major content holders being able to secure their communications often at the expense of those that are more poorly funded. Translated to the music industry, a non neutral internet would see independent artists unable to access their audiences or build profiles with major label artists paying to have priority over them.[2]

Comcast
In August 2007 questions were raised as to whether Comcast engaged in protocol management practices - Comcast denied that it was blocking or throttling file sharing protocols.[3]

In February 2008 Comcast acknowledged that it did engage in traffic management practices but stated that these were reasonable and industry based standards that ensured quality services to their clients.[4] Comcast also altered its Terms of Service to correctly represent the company’s position with respect to traffic management.[5]

In March 2008 Comcast announced that it would alter its traffic management policy to phase out discrimination based on file sharing protocols.[6]

On the 1 August 2008 the FCC ordered that Comcast abandon its traffic management practices.[7] The FCC found that Comcast delayed file sharing traffic and ordered Comcast to submit a new traffic management proposal within 30 days.[8] Comcast was not fined.[9] Comcast commenced legal proceedings in the US Court of Appeals District of Columbia Circuit to dispute the finding, challenging the authority of the FCC to make and impose such a ruling but nonetheless agreed to comply with these requirements in the meantime.[10] Traffic that was effected by Comcasts practices included users of the Ares, BitTorrent, eDonkey, FastTrack and Gnutella networks.[11]

In late September 2008 Comcast announced that it was introducing an alternative traffic management policy.[12] Instead of throttling based on protocol the ISP will now reduce speeds to a good DSL level for high bandwidth users and prioritise low bandwidth users once their network reaches 80% of its capacity.[13]

In separate legal action the New York Attorney General subpoenaed Comcast’s records to investigate their traffic management practices.[14]

Others
There have also been allegations that AT&T engaged in protocol traffic management practices although this was denied by the company.[15]

Similar issues have also arisen in Canada, the UK and Germany.[16]

Technological Responses
In response to Comcast’s traffic management policy there were a number of suggestions as to how technical measures such as protocol header encryption could be employed to bypass the protocol discrimination however as Comcast changed its practices these were not developed or employed on a wide spread scale.[17]

Data Caps
Comcast and Time Warner have both introduced capped broadband accounts in the United States which ensure that high volume users pay more for their internet connections than low volume users.[18] It was announced in November 2008 that AT&T will also introduce these measures.[19]

It has been suggested that Australia does not have similar issues with respect to network neutrality because it already has in place capped broadband accounts which inturn allow ISPs to recoup more money and thus expand their networks as it is needed.[20]

Some ISPs continue to argue that traffic management practices based on protocol are still necessary with time sensitive traffic such as VoIP deserving preferential treatment.[21]

Pending Legislation
There is ongoing debate as to whether legislation is required to ensure network neutrality with many suggesting that competition within the market place should be sufficient to maintain ISP independence and that regulation can often create loop holes and have unintended consequences.[22]

In February 2008 Rep. Edward Markey D-Mass, chairman of the House Energy and Commerce Committee’s subcommittee on Telecommunications and the Internet introduced the Internet Freedom Preservation Act which was cosponsored by Rep. Chip Pickering, R-Miss requiring the FCC to assess whether consumers rights are being affected by the traffic management practices of ISPs.[23]

A Bill titled the Internet Freedom and Nondiscrimination Act of 2008, HR 5994, was introduced by Representatives John Conyers (D-MI) and Zoe Lofgren (D-CA) in mid 2008 which mirrored similar attempts in 2006 to alter the US anti-trust laws to ensure internet neutrality.[24] The Bill amends the Clayton Act of 1914 forbidding ISPs from charging differing rates to differing customers for the same product or service which would harm competition.[25] This Bill supports the notion that network neutrality is in essence a competition issue.[26]

Senator Byron Dorgan stated in November 2008 that further legislation would be introduced as early as January 2009.[27]

[1] CNet News, Net neutrality: An American problem? (28 September 2008) <http://news.cnet.com/8301-1035_3-10053045-94.html> at 5 October 2008
[2] Future of Music Coallition, FACT SHEET: Network Neutrality (January 2008) <http://www.futureofmusic.org/articles/NNfactsheet.cfm> at 18 February 2008
[3] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[4] ZeroPaid, Comcast to FCC: 'Yes, We Throttle BitTorrent Traffic, but So What?' (15 February 2008) <http://www.zeropaid.com/news/9267/Comcast+to+FCC%3A+%27Yes%2C+We+Throttle+BitTorrent+Traffic%2C+but+So+What%3F%27> at 17 February 2008; Digital Music News, In a Jam, Comcast Defends Traffic-Throttling (12 February 2008) <http://www.digitalmusicnews.com/stories/021208comcast/view> at 15 February 2008; The Register, Comcast cops to BitTorrent busting (13 February 2008) <http://www.theregister.co.uk/2008/02/13/comcast_fcc_network_management_filing/> at 15 February 2008; TechDirt, Comcast Defends Its Traffic Shaping Efforts (13 February 2008) <http://www.techdirt.com/articles/20080213/133855251.shtml> at 15 February 2008
[5] ArsTechnica, Comcast tweaks Terms of Service in wake of throttling uproar (7 February 2008) <http://arstechnica.com/news.ars/post/20080207-comcast-tweaks-terms-of-service-in-wake-of-throttling-uproar.html> at 8 February 2008
[6] EFF Deeplinks, Comcast Reduces Discrimination, Plans To End It Altogether (28 March 2008) <http://www.eff.org/deeplinks/2008/03/comcast-reducing-discrimination-planning-end-it-altoghether-isp-testing-remains-es> at 30 March 2008
[7] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[8] CNet News, FCC finalizes Comcast's filtering penalties (20 August 2008) <http://news.cnet.com/8301-13578_3-10021222-38.html> at 22 August 2008; Slyck, FCC to Comcast: You have 30 Days (20 August 2008) <http://www.slyck.com/story1749_FCC_to_Comcast_You_have_30_Days> at 22 August 2008; EFF Deeplinks, FCC Rules Against Comcast for BitTorrent Blocking (3 August 2008) <http://www.eff.org/deeplinks/2008/08/fcc-rules-against-comcast-bit-torrent-blocking> at 7 August 2008; ZeroPaid, FCC - Comcast Was Wrong to Throttle, but Prioritizing Packets is Fine (4 August 2008) <http://www.zeropaid.com/news/9675/FCC+-+Comcast+Was+Wrong+to+Throttle%2C+but+Prioritizing+Packets+is+Fine> at 6 August 2008; TechDirt, Comcast Has Quite A Week: Gets In Trouble For Blocking Content And For NOT Blocking Content (1 August 2008) <http://www.techdirt.com/articles/20080801/1236201863.shtml> at 6 August 2008; ArsTechnica, Hammer drops at last: FCC opposes Comcast P2P throttling (25 July 2008) <http://arstechnica.com/news.ars/post/20080725-hammer-drops-at-last-fcc-opposes-comcast-p2p-throttling.html> at 28 July 2008
[9] EFF Deeplink, FCC Chairman Hints at Order Against Comcast (11 July 2008) <http://www.eff.org/deeplinks/2008/07/fcc-chariman-hints-order-against-comcast> at 18 July 2008
[10] ZeroPaid, Comcast Appeals FCC Decision Ordering End to End BitTorrent Throttling (6 September 2008) <http://www.zeropaid.com/news/9737/Comcast+Appeals+FCC+Decision+Ordering+End+to+BitTorrent+Throttling> at 12 September 2008; TechDirt, Comcast Says FCC Has No Authority To Stop Traffic Shaping (20 March 2008) <http://www.techdirt.com/articles/20080319/195617592.shtml> at 22 March 2008
[11] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[12] EFF Deeplinks, Comcast Unveils Its New Traffic Management Architecture (22 September 2008) <http://www.eff.org/deeplinks/2008/09/comcast-unveils-its-new-traffic-management-archite> at 5 October 2008; TechDirt, Comcast Says No One Has Complained About Its New Traffic Slowing Efforts (22 September 2008) <http://www.techdirt.com/articles/20080922/0252232326.shtml> at 26 September 2008; ArsTechnica, Comcast loses P2P religion, goes agnostic on throttling (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-comcast-loses-p2p-religion-goes-agnostic-on-throttling.html> at 21 September 2008
[13] EFF Deeplinks, Comcast Unveils Its New Traffic Management Architecture (22 September 2008) <http://www.eff.org/deeplinks/2008/09/comcast-unveils-its-new-traffic-management-archite> at 5 October 2008; TechDirt, Comcast to Throttle Heavy Internet Users Up to 20 min (23 August 2008) <http://www.zeropaid.com/news/9711/Comcast+to+Throttle+Heavy+Internet+Users+Up+to+20+Min> at 25 August 2008; Digital Music News, Selective Slowdowns: Comcast Keeps Pushing Throttling Plans (22 August 2008) <http://www.digitalmusicnews.com/stories/082108comcast> at 25 August 2008
[14] SiliconValley.com/Associated Press, N.Y. attorney general subpoenas Comcast on traffic throttling (26 February 2008) <http://www.siliconvalley.com/news/ci_8369162?nclick_check=1> at 29 February 2008; The Register, New York Subpoenas Comcast 'reasonable network management' records (27 February 2008) <http://www.theregister.co.uk/2008/02/27/andrew_cuomo_subpoenas_comcast/> at 28 February 2008
[15] ZeroPaid, AT&T to FCC: 'We Don't Throttle Bit Torrent' (27 April 2008) <http://www.zeropaid.com/news/9439/AT%26T+to+FCC%3A+%27We+Don%27t+Throttle+BitTorrent%27> at 29 April 2008
[16] ArsTechnica, P2P throttling leading to net neutrality showdown in Canada (24 April 2008) <http://arstechnica.com/news.ars/post/20080424-p2p-throttling-leading-to-net-neutrality-showdown-in-canada.html> at 2 May 2008; The Star, CRTC asked to stop Bell's 'throttling' (5 April 2008) <http://www.thestar.com/Business/article/410454> at 8 April 2008; ZeroPaid, How Bell and CBC Ignited Network Neutrality Debate in Canada (31 March 2008) <http://www.zeropaid.com/news/9369/How+Bell+and+CBC+Ignited+Network+Neutrality+Debate+in+Canada> at 2 April 2008; TechDirt, It's Good To Be A Monopoly: Bell Canada Tells ISPs To Shut Up And Accept Traffic Shaping (25 March 2008) <http://www.techdirt.com/articles/20080325/155924648.shtml> at 27 March 2008; The Register, Tiscali hits 'undo' after bandwidth throttling chokes iTunes (21 January 2008) <http://www.theregister.co.uk/2008/01/22/tiscali_bandwith_problems_ongoing/> at 30 January 2008; P2PBlog, German cable ISP admits Bittorrent blocking (10 March 2008) <http://www.p2p-blog.com/item-539.html> at 11 March 2008
[17] ZeroPaid, Comcast Work Around for Azures (20 March 2008) <http://www.zeropaid.com/news/9340/Comcast+Work+Around+for+Azureus> at 22 March 2008; The Register, BitTorrent busts Comcast BitTorrent busting (19 February 2008) <http://www.theregister.co.uk/2008/02/19/bittorrent_developers_hit_back_at_comcast/> at 19 February 2008
[18] ZeroPaid, AT&T Begins 20-150GB Data Cap Trials in Reno NV (5 November 2008) <http://www.zeropaid.com/news/9831/AT%26T+Begins+20-150GB+Data+Cap+Trials+in+Reno%2C+NV> at 6 November 2008
[19] ZeroPaid, AT&T Begins 20-150GB Data Cap Trials in Reno NV (5 November 2008) <http://www.zeropaid.com/news/9831/AT%26T+Begins+20-150GB+Data+Cap+Trials+in+Reno%2C+NV> at 6 November 2008
[20] CNet News, Net neutrality: An American problem? (28 September 2008) <http://news.cnet.com/8301-1035_3-10053045-94.html> at 5 October 2008
[21] ArsTechnica, Verizon: we need freedom to delay P2P traffic when necessary (21 August 2008) <http://arstechnica.com/news.ars/post/20080821-verizon-we-need-freedom-to-delay-p2p-traffic-when-necessary.html> at 22 August 2008
[22] ArsTechnica, Is government regulation needed to ensure net neutrality? (14 November 2008) <http://arstechnica.com/news.ars/post/20081114-is-government-regulation-needed-to-ensure-net-neutrality.html> at 16 November 2008; TechDirt, The Paper On Network Neutrality That Any Policy Maker Needs To Read (12 November 2008) <http://www.techdirt.com/articles/20081112/0121062806.shtml> at 16 November 2008;
[23] TechDirt, Markey's Non-Regulation Net Neutrality Regulation (13 February 2008) <http://www.techdirt.com/articles/20080213/122300247.shtml> at 15 February 2008; msnbc/Associated Press, 'Net neutrality' bill introduced (13 February 2008) <http://www.msnbc.msn.com/id/23147101/> at 18 February 2008
[24] ArsTechnica, New bill ties net neutrality to antitrust law (8 May 2008) <http://arstechnica.com/news.ars/post/20080508-new-bill-ties-net-neutrality-to-antitrust-law.html> at 10 May 2008; CNet News, Democrats revive another Net neutrality proposal (8 May 2008) <http://www.news.com/8301-10784_3-9939443-7.html> at 10 May 2008
[25] ArsTechnica, New bill ties net neutrality to antitrust law (8 May 2008) <http://arstechnica.com/news.ars/post/20080508-new-bill-ties-net-neutrality-to-antitrust-law.html> at 10 May 2008; CNet News, Democrats revive another Net neutrality proposal (8 May 2008) <http://www.news.com/8301-10784_3-9939443-7.html> at 10 May 2008
[26] TechDirt, We Need A Broadband Competition Act, Not A Net Neutrality Act (26 February 2008) <http://www.techdirt.com/articles/20080225/135642351.shtml> at 28 February 2008
[27] TechDirt, Net Neutrality Legislation Expected In January (14 November 2008) <http://www.techdirt.com/articles/20081113/1531282827.shtml> at 16 November 2008

FANTASTIC NEWS... maybe

It is reported that the RIAA are abandoning their mass lawsuit campaign against file sharers in the United States with suggestions that ISPs will be cooperating with them to provide warning notices. Since the litigation campaign commenced over 35,000 people have received letters of demand for payment of damages with the threat of litigation for illegally sharing music. All suits that have been commenced will be continued. It will be interesting to see what 'cooperating with ISPs actually means' - if that means poor quality evidence is used to disconnect accounts it is questionable whether this is a step forward or not.

Further Reading
ABC, US Music Industry Abandons Mass Piracy Lawsuits (20 December 2008) <http://www.abc.net.au/news/stories/2008/12/20/2451897.htm?section=justin> at 20 December 2008

CNet News, RIAA President: No talk of blakclisting file sharers (19 December 2008) <http://news.cnet.com/8301-1023_3-10127313-93.html?tag=newsLeadStoriesArea.1> at 20 December 2008

Wall Street Journal, Music Industry to Abandon Mass Suits (19 Decemebr 2008) <http://online.wsj.com/article/SB122966038836021137.html> at 20 December 2008

Digital Music News, Developing - Major Lables Endign Lawsuits Against Individuals (19 December 2008) <http://www.digitalmusicnews.com/stories/121908riaa/view> at 20 December 2008

Slyck, RIAA Drops Lawsuit Campaign – Mostly (19 December 2008) <http://www.slyck.com/story1812_RIAA_Drops_Lawsuit_Campaign_Mostly> at 20 December 2008

ZeroPaid, RIAA to Quit Suing File-Sharers, Wants ISPs to Disconnect Instead (19 December 2008) <http://www.zeropaid.com/news/9907/RIAA+to+Quit+Suing+File-Sharers%2C+Wants+ISPs+to+Disconnect+Instead> at 20 December 2008

EFF Deeplinks, RIAA v. The People Turns from Lawsuits to 3 Strikes (19 December 2008) <http://www.eff.org/deeplinks/2008/12/riaa-v-people-turns-lawsuits-3-strikes> at 20 December 2008

ArsTechnica, No more lawsuits: ISPs (19 December 2008) <http://arstechnica.com/news.ars/post/20081219-no-more-lawsuits-isps-to-work-with-riaa-cut-off-p2p-users.html> at 20 December 2008

Year in Review: Search Engines

A number of new music related search engines launched in 2008 and changes were made to existing search engines which enhance access to music. A number of lawsuits were also commenced by the content industry alleging that music focused search engines are in breach of copyright law.

Search Engines
FilesTube is a new search engine which crawls the internet for music files that are hosted on third party sites to facilitate direct downloading.[1] The search engine, run by Red Sky LLC, has a database of 40 million media files with 5 million users per month.[2] The operators do not host any of the files and state that they are doing their best to ensure they only serve legal copies by deleting links that relate to illegal content.[3] When a user is unable to find the file they are after they can enter an email address and receive notification once the content has been located.[4]

Searchme is a visual search engine which launched a free music streaming service in October 2008.[5] Users are able to listen to an unlimited number of tracks and the site provides links to buy content from Amazon.[6]

The Yahoo search engine now provides access to songs within the Rhapsody catalogue and allows Rhapsody subscribers unlimited streams of all tracks.[7] Non subscribers are able to stream up to 25 tracks a month.[8]

Google China – Top100.cn was launched in August 2008 to compete with Baidu’s music search service.[9] The service is reported to have the cooperation of several major record labels.[10]

Lawsuits
In Parker v. Yahoo, Inc., 2008 WL 4410095 (E.D. Pa. Sept. 25, 2008), a case heard in the US District Court, it was held that cached (archived) copies of copyright material by search engines are not a breach of the exclusive rights of the copyright holder.[11] The court held that an implied license exists when material is uploaded to the internet permitting search engines to make copies and allowing users to access the material through search links.[12]

Project Playlist, a search engine which enables users to produce playlists by linking content hosted on multiple third party sites together without hosting any infringing files was sued for facilitating copyright infringement by nine record labels in April 2008 in the US District Court in Manhattan.[13] Files can stream through the service by users and it is this process which some argue sets the service apart from a standard search engine and which may open the door to legal liability.[14] It was reported that at the time the legal action was commenced the site had a user base of 24 million people with 600,000 unique visitors per day, 9.5 million page views per day and grew more than 200% in 2007.[15] The site is ad supported and claims to pay royalties to music publishing collection agencies BMI, ASCAP and SESAC.[16] The operators claim that their service has many legal uses as well as illegal ones.[17]

Seeqpod, a music focused search engine which also gathers links third party websites was sued in 2008 by Warner Music.[18] The site allows users to stream the content and store it for later use however the songs cannot be downloaded.[19] The company claim that they are protected from liability for copyright infringement under the DMCA.[20]

Baidu was reported as having a 70 percent market share in China largely owing its success to its MP3 music search service which is ad supported.[21] Following the loss of a case against the search engine in 2007, in February 2008 the IFPI on behalf of the record labels commenced legal action against the search engine for facilitating copyright infringement seeking damages of $US9 million.[22] Baidu is being sued by Universal Music Ltd, Sony BMG Music Entertainment Hong Kong Ltd and Warner Music Hong Kong Ltd in the Beijing No.1 Intermediate People’s Court for copyright infringements relating to 127 songs and are seeking the maximum damages of RMB 500,000 ($US71,000) per song – RMB 63,500,000 or $US9 million.[23] In separate legal action against Baidu the Music Copyright Society of China has also filed a suit for deep linking to illegal files seeking $1 million yuan or $US140,000 for breaching copyright on 50 songs.[24] One report suggests that despite claims of not hosting content and only linking to third party sites, that the search engine is actually actively hosting content in a complex network of websites that are inaccessible to other search engines and which are repeatedly relocated when take down notices are received.[25]

[1] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[2] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[3] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[4] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[5] CNet News, Searchme tries music streaming to attract users (20 October 2008) <http://news.cnet.com/8301-17939_109-10070614-2.html> at 22 October 2008
[6] CNet News, Searchme tries music streaming to attract users (20 October 2008) <http://news.cnet.com/8301-17939_109-10070614-2.html> at 22 October 2008
[7] ArsTechnica, Yahoo hopes to boost search fortunes with new music search (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-yahoo-hopes-to-boost-search-fortunes-with-new-music-search.html> at 21 September 2008
[8] ArsTechnica, Yahoo hopes to boost search fortunes with new music search (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-yahoo-hopes-to-boost-search-fortunes-with-new-music-search.html> at 21 September 2008
[9] ZeroPaid, Google Launches Free Music Service in China (10 August 2008) <http://www.zeropaid.com/news/9691/Google+Launches+Free+Music+Service+in+China> at 12 August 2008; Digital Music News, Google Launches Ad-Supported Chinese Music Search (6 August 2008) <http://www.digitalmusicnews.com/stories/080508google> at 7 August 2008; TechDirt, Google Wants To Launch MP3 Search In China (1 August 2008)<http://www.techdirt.com/articles/20080801/1714001868.shtml> at 6 August 2008
[10] Digital Music News, Google Launches Ad-Supported Chinese Music Search (6 August 2008) <http://www.digitalmusicnews.com/stories/080508google> at 7 August 2008
[11] Technology & Marketing Law Blog, Search Engine "Cache" Function Covered by Implied License--Parker v. Yahoo (16 October 2008)<http://blog.ericgoldman.org/archives/2008/10/search_engine_c.htm> at 16 December 2008; TechDirt, Search Engine Cache Isn't Copyright Infringement (24 October 2008) <http://www.techdirt.com/articles/20081017/0150532568.shtml> at 27 October 2008
[12] Technology & Marketing Law Blog, Search Engine "Cache" Function Covered by Implied License--Parker v. Yahoo (16 October 2008)<http://blog.ericgoldman.org/archives/2008/10/search_engine_c.htm> at 16 December 2008; TechDirt, Search Engine Cache Isn't Copyright Infringement (24 October 2008) <http://www.techdirt.com/articles/20081017/0150532568.shtml> at 27 October 2008
[13] Digital Music News, Project Playlist: Another Lopsided Settlement Ahead? (12 May 2008) <http://www.digitalmusicnews.com/stories/051108playlist> at 21 May 2008; TechDirt, RIAA Now Decides That Not Enough People Have Heard Of Project Playlist (29 April 2008) <http://www.techdirt.com/articles/20080428/194905972.shtml> at 2 May 2008; ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008; New York Times/Reuters, Record Companies Sue Project Playlist on Copyright (28 April 2008) <http://www.nytimes.com/reuters/technology/tech-suit.html?_r=1&oref=slogin> at 30 April 2008; Digital Music News, Project Playlist Hauled Into Court; Majors Allege Massive Infringement (29 April 2008) <http://www.digitalmusicnews.com/stories/042808playlist> at 30 April 2008
[14] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[15] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008; New York Times/Reuters, Record Companies Sue Project Playlist on Copyright (28 April 2008) <http://www.nytimes.com/reuters/technology/tech-suit.html?_r=1&oref=slogin> at 30 April 2008
[16] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[17] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[18] Digital Music News, Project Playlist Hauled Into Court; Majors Allege Massive Infringement (29 April 2008) <http://www.digitalmusicnews.com/stories/042808playlist> at 30 April 2008
[19] Digital Music News, The Seeqpod Secret: Simple Searching, Serious Files (23 January 2008) <http://www.digitalmusicnews.com/stories/012408seeqpod> at 30 January 2008
[20] Digital Music News, Warner Music Lawyers Roll Again, Seeqpod Latest Target (23 January 2008) <http://www.digitalmusicnews.com/stories/012308wmg> at 30 January 2008; TechDirt, Warner Music Sues Seeqpod: How Dare It Help People Find Stuff Warner Wishes Didn't Exist (25 January 2008) <http://www.techdirt.com/articles/20080125/01330469.shtml> at 30 January 2008
[21] The Register, China's nonstop music machine (13 September 2008) <http://www.theregister.co.uk/2008/09/13/baidu_investigation/> at 21 September 2008; Digital Music News, Baidu Back On the Burner: Tough Talk Continues (5 June 2008) <http://www.digitalmusicnews.com/stories/060408baidu > at 6 June 2008
[22] The Register, China's nonstop music machine (13 September 2008) <http://www.theregister.co.uk/2008/09/13/baidu_investigation/> at 21 September 2008; ZeroPaid, Google Launches Free Music Service in China (10 August 2008) <http://www.zeropaid.com/news/9691/Google+Launches+Free+Music+Service+in+China> at 12 August 2008; Digital Music News, Baidu Back On the Burner: Tough Talk Continues (5 June 2008) <http://www.digitalmusicnews.com/stories/060408baidu > at 6 June 2008; TechDirt, Record Labels Keep On Trying: Sue Baidu For Copyright Infringement Yet Again (5 February 2008) <http://www.techdirt.com/articles/20080205/084632179.shtml> at 7 February 2008; ArsTechnica, IFPI sues Baidu, Yahoo China over deep linking MP3s (5 February 2008)<http://arstechnica.com/news.ars/post/20080205-ifpi-sues-baidu-yahoo-china-over-deep-linking-mp3s.html>
[23] Digital Music News, Labels Cranking Legal Heat In China... Again (8 April 2008) <http://www.digitalmusicnews.com/stories/040808china> at 13 April 2008; ZeroPaid, IFPI Suing Major search Engine for $9 Million (8 April 2008) <http://www.zeropaid.com/news/9390/IFPI+Suing+Major+Search+Engine+for+%249+Million> at 8 April 2008
[24] ArsTechnica, Labels seek billions in damages over Baidu MP3 deep-linking (7 April 2008) <http://arstechnica.com/news.ars/post/20080407-labels-seek-billions-in-damages-over-baidu-mp3-deep-linking.html> at 8 April 2008; The Register, Baidu sued by Chinese copyright group (3 March 2008) <http://www.theregister.co.uk/2008/03/03/baidu_sued_chinese_copyright_society/> at 5 March 2008; Digital Music News, Baidu Faces Chinese Rebellion, More Lawsuits Fly (3 March 2008) <http://www.digitalmusicnews.com/stories/030208china> at 4 March 2008; Yahoo News UK/Ireland, Chinese music industry groups file suit against Baidu (28 February 2008) <http://uk.news.yahoo.com/rtrs/20080228/tot-uk-baidu-lawsuit-copyright-566e283.html> at 29 February 2008
[25] TechDirt, Baidu Expose Suggests That It's A Lot More Involved In Music Downloads Than It Lets On (15 September 2008) <http://www.techdirt.com/articles/20080915/0150502269.shtml> at 21 September 2008

Year in Review: Recording Contracts

Two thousand and eight saw the further emergence of recording contracts, commonly referred to as 360 deals, which enable labels to derive income from all aspects of an artists career rather than just recording sales.[1] These contracts cover recordings, merchandising, content licensing, sponsorship, touring, DVD, and literary rights.[2]

Under the new emerging standard terms artists are give $3-4 per album for recording sales rather than $1-1.50 which was the typical royalty rate.[3] Of course in an environment where sales are diminishing these new arrangements more generally benefit the label rather than the artist. That said however, some have commented that by consolidating their arrangements artists are saving money by attracting fewer overheads.[4]

It appears that artists are less inclined towards signing major record contracts and this trend includes fewer artists willing to upstream from an independent label to a major label which is commonly achieved through a joint venture arrangement.[5]

There were also further examples of traditional recording contracts being unfair to artists. The band 30 Seconds to Mars were sued by EMI for $30 million for failing to deliver their next album on time.[6] The band claimed that as the contract was for a period of nine years and statutory limitations on contracts in California hold that any contract longer than seven years is void, that they should be released from the contract.[7] The band also noted that they had sold more than 2 million records in the time they had been signed to EMI and not only had they never received any royalties, EMI claims that they are still owed $1.4 million by the band.[8]

In another example, the artist Lyle Lovett was reported to have received no royalties from the sale of 4.6 million albums.[9]

[1] Digital Music News, Live Nation Mega-Deals Keep Getting Bigger... (21 October 2008) <http://www.digitalmusicnews.com/stories/102008equity> at 22 October 2008; Digital Music News, And Another One: Live Nation Ropes Nickelback Mega-Deal (7 July 2008) <http://www.digitalmusicnews.com/stories_old/070708nickelback> at 9 July 2008; Digital Music News, More Rattling on Shakira, Live Nation Mega-Deal... (3 July 2008) <http://www.digitalmusicnews.com/stories/070108shakira> at 4 July 2008; Digital Music News, Stumbling Towards 360: An Industry Licks Its Early Wounds (25 June 2008) <http://www.digitalmusicnews.com/stories/062508three> at 27 June 2008
[2] Digital Music News, Why 360 Degrees Still Spells 360 Questions... (20 August 2008) <http://www.digitalmusicnews.com/stories/081908three> at 22 August 2008
[3] Digital Music News, In 360-Degrees We Trust: Evolving Deal Points Emerge (10 April 2008) <http://www.digitalmusicnews.com/stories/040908three> at 13 April 2008
[4] Digital Music News, 360 + Change: Labels Pushing Harder on Broader Deals (10 February 2008) <http://www.digitalmusicnews.com/stories/021008change> at 19 February 2008
[5] Digital Music News, Upstreaming Disrupted:Why Major Label Survival Depends on Transformed Deals (18 March 2008) <http://www.digitalmusicnews.com/stories/031708upstream> at 19 March 2008
[6] TechDirt, EMI/Virgin Records Sues Platinum Selling Band For $30 Million... Despite Not Paying Them A Dime In Royalties (21 August 2008) <http://www.techdirt.com/articles/20080820/0204472040.shtml> at 25 August 2008
[7] TechDirt, EMI/Virgin Records Sues Platinum Selling Band For $30 Million... Despite Not Paying Them A Dime In Royalties (21 August 2008) <http://www.techdirt.com/articles/20080820/0204472040.shtml> at 25 August 2008
[8] TechDirt, EMI/Virgin Records Sues Platinum Selling Band For $30 Million... Despite Not Paying Them A Dime In Royalties (21 August 2008) <http://www.techdirt.com/articles/20080820/0204472040.shtml> at 25 August 2008
[9] TechDirt, EMI/Virgin Records Sues Platinum Selling Band For $30 Million... Despite Not Paying Them A Dime In Royalties (21 August 2008) <http://www.techdirt.com/articles/20080820/0204472040.shtml> at 25 August 2008; TechDirt, Lyle Lovett: Albums Sold? 4.6 Million. Money Made From Album Sales? $0 (11 July 2008) <http://www.techdirt.com/articles/20080711/1439371651.shtml> at 15 July 2008

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