Skip to navigation

Monday, September 27, 2004


(My September contribution to IP Memes follows.)


Given its rigorous and costly requirements, it's not surprising the Sarbanes-Oxley Act of 2002 has been widely criticized as a Congressional public relations stunt executed response to Enron and WorldCom. Sun Microsystems CEO Scott McNealy, for example, has called the Act the corporate equivalent of a full body cavity search carried out with no probable cause. While it's immediately apparent how S-Ox compliance serves to — insert the word "excessively" to taste — pad the coffers of lawyers and accountants, the Act's negative impact on the world of open source software is less obvious but no less important. With the environment emphazising accountability and liability, it is tempting for CIOs and CEOs to cling to industry behemoths with deep pockets for technologies to run their business processes. The price they will pay is likely to be a high one in terms of flexibility and responsiveness, without any ironclad protection against the regulatory watchdogs. While open source continues to make corporate inroads, in the face of mandatory Sarbanes-Oxley compliance its advocates must also overcome the same mindset that spent billions on the Y2K "crisis."



In what customers will no doubt find a welcome departure from its "Like No Other" marketing campaign, Sony Electronics announced last week that its new digital audio players, including the iconic Walkman, will support the MP3 format. In the past, only files created using Sony's proprietary ATRAC compression technology would play on the company's digital audio devices. The company's portable music players will now be better able to go head to head with Apple's iPod and other devices that support the more common and popular MP3 format, though Sony's online music store, Sony Connect, will continue to sell only ATRAC files. A Sony Europe executive said the shift is designed to appeal to those who already have a large collection of MP3s. Some of these presumably were downloaded before stores like Sony Connect came into existence, though it appears the company is banking wisely on its ability to profit both from its own online music sales and from the MP3s its customers may obtain elsewhere. No word yet on whether Sony's new players will come with a discount on the "Like No Other" thong. [Disclosure: I represent Sony Computer Entertainment America Inc. in connection with its amicus brief submitted in the Lexmark v. Static Control DMCA case pending in the Sixth Circuit.]



In July, IP Memes covered eBay's experiment in auctioning digital music downloads. The pilot project has now ended and eBay's Digital Downloads category is live. Seller PassAlong Networks is licensed to sell the catalogs of several major labels. Those interested must download the PassAlong software, described as "necessary for licensing requirements," and be prepared to play files in the Windows Media (WMA) format. Also selling on eBay is iHoopla Music, an artist direct store that delivers WMA files as well.



"Get a license or do not sample. We do not see this as stifling creativity in any significant way." So held the Sixth Circuit recently in Bridgeport Music v. Dimension Films, a case involving the band NWA, its song "100 Miles and Runnin," and the song's sample of a three-note guitar riff first riffed by George Clinton and Funkadelic. In its decision, the Sixth Circuit has promulgated an admittedly unprecedented bright line test that makes no allowance for the unlicensed use of de minimis, unrecognizeable portions of sound recordings. Blawger/lawyer Marty Schwimmer posted a comment he received from well known copyright lawyer Craig Mende pointing out the conflict between the new Bridgeport Music decision and seemingly analogous situations where courts have authorized de minimis use. (Can you say Circuit split?) Blawger/Professor Larry Lessig points out the difficulty of implementing the Court's bright line test, and the perhaps unintentional preferred status it confers on recorded music.



Cluetrain Manifesto co-author David Weinberger spoke last week to the Entertainment and Media section of the World Economic Forum, and he reported the experience on his weblog, JOHO (Journal of the Hyperlinked Organization) The Blog. The meeting, attended by senior members of the recording, movie, and media industries, left Dr. Weinberger chilled at the propects for technological innovation and the Internet. In addition to providing his impressions of the ways in which the section members and their organizations fail to understand what constitutes real value for their customers, Dr. Weinberger describes his pitch the the group: a less restrictive approach to copyright laws and enforcement in the name of cultural health and well-being. This is required reading for technology users of all stripes who hope to go through life with a minimum of legal defense costs and jail time, and copyright holders of all stripes who hope to make effective use of the Internet in pursuit of their livelihood.


Creative Commons LicenseUnless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in the Bag and Baggage weblog and any related pages, including the weblog's archives, is licensed under a Creative Commons License.