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Monday, July 19, 2004

IP MEMES: MUSIC MODEL MUSINGS—AND MORE

(My July contribution to IP Memes follows.)

OUR BUSINESS MODEL STINKS, GET HARVARD ON THE PHONE

We've been marinating in the Internet for more than a decade, and the music industry still doesn't know what its business model is. And not for lack of suggestion, either. Harvard Law School professors William "Terry" Fisher III, Charles Nesson, and Jonathan Zittrain, for example, all agree the industry's "total control" model won't work. As explained in Fisher's upcoming book (due out next month), one approach is to accept copying and downloading as a fact of life, legalize it, and tax the infrastructure and hardware involved in order to compensate musicians and others. Another approach, advocated by Nesson, would retain the current copyright law framework but boost incentives for users to choose paid, legal services and reject free, illegal ones. At the recent AlwaysOn Innovation Summit, companies like RealNetworks and AOL discussed the way they plan to provide the incentives anticipated by Nesson. According to Kevin Conroy, EVP & COO, AOL Broadband, there's an increasingly valuable role for aggregators to package entertainment in different ways. From his standpoint, there has been a fundamental change in the ability of the Internet to be used to reach people in different ways that will serve the copyright owner very well. From my standpoint, unless these systems interoperate and readily permit the whole panoply of legal uses—they do neither now—the Nesson approach will satisfy neither the music industry nor its would-be customers.

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OPEN SOURCED

The proliferation of SCO lawsuits concerning the Linux operating system has had one unexpected but perhaps inevitable by-product: the Linux community's implementation of new measures designed to document contributions to the kernel. In what the Open Source Development Labs call "enhancements" to the kernel submission process, and a means of ensuring contributors receive credit, developers now are required to submit a "Certificate of Origin" confirming they either wrote the code in question or it is otherwise validly licensed for use in Linux. What the press release does not discuss are the potential consequences to Linux contributors who violate the certificate's warranties.

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WHEN THE BYLINE IS LONGER THAN THE BOOK

As Italo Calvino knew well, the distinction between writer and reader can be blurry and complex. Today's authors are making it more so in at least two ways. By making their writing available under a Creative Commons license that permits publication of copies and derivative works for noncommercial purposes, authors can get the best of both worlds: powerful, sincere, and unconventional "marketing" from readers and fans which also increases the book's visibility and drives hard copy sales. Ever since Cory Doctorow adopted a less restrictive license for his award winning Down and Out in the Magic Kingdom, the book has been reformatted, translated, read aloud, and remixed in dozens of ways, and the same thing is happening for Professor Lawrence Lessig with his book Free Culture. Both Doctorow and Lessig are convinced the "rip, mix, and burn" model helps sales. As Lessig explains in the July/August issue of Stanford Magazine, remixing and redistribution reaches a whole new audience of "converts" who will buy the hard copy because they're intrigued by what they've seen online but still enjoy reading a paper and ink book.

Technology journalists Dan Gillmor and JD Lasica agree, and have taken the process even further by involving future readers in the writing itself. In Gillmor's case, draft chapters of his imminent book, "We The Media," have been posted for comment, and Gillmor has used the feedback to fine tune the finished product. Consistent with its subject matter, JD Lasica permits direct edits (via a collaborative wiki) to his upcoming Darknet: Remixing the Future of Movies, Music and Television: "It's simple. Select a chapter there on the right. If you want to make an edit or insert a comment, hit the Edit This Page button."

What remains to be seen is whether collaborative publishing will undergo the same documentation growing pains experienced by the Linux world. Will collaborative authors demand their own Certificate of Origin from contributors? Will they only accept contributions that are expressly licensed for commercial use? JD Lasica tells me he doesn't know, but he hopes the informality can continue.

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BIT RATES AND BID RATES

eBay does not currently permit sellers to auction downloadable media, but this may be about to change. The auction powerhouse is conducting a 180-day pilot program with pre-approved sellers, and thereafter will decide whether to keep its new "Digital Downloads" music category and open it up to other copyright owners or resellers. Any future sellers will have to affirm they either are the rights owner or have contractual permission to resell from the rights owner. In other words: the potential revised policy still won't help you resell your iTunes.

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THE WAITING IS NO LONGER THE HARDEST PART

How often have you walked out of a concert convinced the band had just achieved the pinnacle of its art—man, wasn't it wild when Keith pulled you up on stage for that impromptu solo?—and lamented the fact you had no enduring record of the event? While the Grateful Dead are renowned for letting fans record live performances, they also have joined the growing ranks of performers (including Jewel, Kiss, Cowboy Junkies, Pixies, and others) who offer professional digital recordings of the festivities for sale right at the venue. Several companies are competing to offer this kind of service, but Instant Live, owned by Clear Channel Entertainment, claims to have purchased an exclusive patent that would make it the only game in town. This strategy has landed Clear Channel on the EFF's 10 Most Wanted patents list, highlighted in prior IP Memes. Of course, for those unwilling to give up their spot in the Dead's bootlegger section, MF Digital's new six-cd burner PC (the 5906EX Live) is ready to help.

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THOUGH PURISTS PREFER HER ON THE ROCKS, WITH SALT

In honor of artist Tom Forsythe's recent recovery of $1.8 million in attorneys' fees from Mattel in connection with its lawsuit over his "Food Chain Barbie" photographs, July 27 has been declared National Barbie In A Blender Day. On the premise that Barbie art need not be the province of chi-chi galleries, Freeculture.org is sponsoring a competition and awarding Gmail accounts to the 10 coolest submissions.

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