Kevin Heller has an interesting post in the Blawg Channel where he analyzes the P2P file sharing issues in a way that I have not seen before. We've heard the RIAA's take on it, and we've heard the EFF/Lessig take (as frequently and vociferously argued in this space by our own Dr. Wex), but Kevin appears to be bringing something new to the debate. Could the legislation and potential compromise that he discusses finally rescue our beloved P2P movement from the stifling grip of litigation? Let's hope.Posted by david on July 28, 2004 11:33 AM
Continuing to call the music industry a "business" is to fly in the face of reality. They've already been convicted of collusion and price-fixing (has anyone gotten their settlement check yet? I haven't.) and now they're accused of blacklisting. These are the classic actions of a cartel (drugs, crime, oil) that seeks to retain its stranglehold on its chosen domain.
In this case, the alleged blacklisting is aimed at preventing companies like RealNetworks from doing business with companies that run P2P networks. As I've noted, a few innovators are trying to use these networks to promote themselves and develop new business models. Meanwhile, the Cartel continues to fight for its antiquated business models and to strangle in the cradle anything else.
In order for the Cartel to continue to maintain that the P2P nets are illegitimate, they have to prevent those networks/companies from having any arrangements with legitimate companies. It's a lovely Catch-22 you see - since we won't let you have our music legally, any music on your net must ipso facto be illegitimate. Roll out the next round of lawsuits, boys!
My favorite quote:
"If the last names of the CEOs of most major record labels ended in a vowel they'd be calling this behaviour racketeering," said former Grokster president Wayne Rosso.
Calling Elliot Spitzer...
So, in attempting to research the question of "has anyone gotten their settlement CDs" I discover that some places have, and nobody's happy about it. The Cartel has taken this opportunity to unload its warehouses of such detritus as dozens of duplicates, unusable CDs, and so on. The recipients, usually libraries, are peeved. At best they can play swap games with other libraries to spread some of the copies around. At worst they have to spend dozens of hours to weed out unusable trash.
Other problems include CDs with adult lyrics being sent to children's libraries, and the likelihood that the Cartel has violated some of the specific terms of the settlement. The CDs that were specified were supposed to be ones that scored well on industry charts (on industry charts for 26 weeks or have peaked in the top half of the charts). It appears that in some cases, over half the CDs the Cartel sent out don't meet these criteria.Posted by dr. wex on July 17, 2004 08:40 AM
If you've been playing along with the home edition (or read the earlier entry in this blog) you may recall that I commented on the ongoing radio controversy surrounding the FCC's "indecency" policies, in which they actively refuse to define the standards by which content may be reviewed, graded, censored, or subject to penalties.
Also over in the "vague and arbitrary" column is the MPAA's ratings board, which holds vast authority over films and their composition as shown to the theater-going public (*). A new study out of Harvard's School of Public Health chronicles the problem of "ratings creep." This is a slow change in the level of sex and violence that is permitted in a film of a given rating. This is expected, as society and cultural expectations change; the problem is that it's all opaque and undocumented.
As with other ratings systems that lack defined criteria, there are huge inconsistencies in the system - for example, in the treatment of the depictions of cigarettes, alcohol or drugs. As a content creator, it is difficult to know how to shape your work to reach the audience you want to reach when it has to pass through a murky water of undefined obstacles.
Apparently the MPAA attempts to differentiate such things as "sensuality" from "sexuality" - a farcical effort on the face of it. On the other hand, if someone would like to fund me to conduct some empirical studies...
(*) I no longer say "viewing public" because of the prevalence these days of director's cuts, often unrated, that are available for DVD viewing or downloading off your favorite high-speed P2P network.Posted by dr. wex on July 14, 2004 11:57 AM
Back when the Cartel smashed Napster I pointed out that they had only a few years (I think I said two - I was optimistic) until people started trading movies around the way they trade music. We're now halfway through 2004 and it's happening. The MPAA is waving around a survey showing that in eight countries about 1/4th of Web users have now downloaded at least one movie. In some countries where broadband is particularly widespread, such as South Korea, the number exceeds 50%. Despite its continuing jihad against its customers, the Cartel are clearly losing this war.
Even looked at as a rear-guard action, their campaigns haven't bought them enough time to get legitimate services up and going. iTunes just passed 100 million songs but it's an oddball, counting more sales than all the others combined. It now stands about where it should have been four years ago, if the Cartel had been wise and not paranoid. Compare 100 million with the estimated 1 *billion* songs available on the P2P nets.
There are some downloadable movie services, but they're tiny, they suck even more than the downloadable music services, and they are nowhere near mass market potential. The Cartel simply do not have a viable commercial alternative to the free downloads and in addition they have to wrestle with a big rental market that music doesn't have. They also have a ton of work to do to explain why DVD sales are skyrocketing even as movie downloading takes widespread root. I'm sure their spin doctors are hard at work already.
I'm not at all sure what the Cartel are ultimately going to do about this. Clearly they have to do something; they're too heavily invested to simply declare victory and get out. My guess is that they'll continue a multipronged campaign - the MPAA will start suing customers, the full-court press will continue against every company making a product the Cartel doesn't like, and money will continue to wash over Congress. The results will be mixed, publicity will be generated, and sharing will continue to rise.
What's most disturbing to me is that I can't see a good end-game for this. I don't particularly like the movie part of the Cartel any more than I like the music part, but the current situation is untenable. We need a sweeping new model, not incremental change. What I'd like to see is an all-media digital ASCAP. Something into which I can - directly or indirectly - pay my fees and thereafter go get my content with some assurance that what I'm doing is legal and that the artists and other creative parties are being compensated by my dollars.
Not that I much think it's going to happen.Posted by dr. wex on July 13, 2004 06:41 AM
It's easy to sit back and say that the RIAA's ongoing spate of lawsuits against consumers (what I call their jihad) is idiotic and misguided. That's like saying water is wet and you ought to come in out of the rain. But it's a bit harder to figure out what else might be done. A couple of good alternative pieces, then:
In a well-reasoned NYTimes op-ed piece, Harvard professor William Fisher lays out a history of the Cartel versus technology. On one end of the spectrum lie technologies over which the Cartel exercised no control, primarily the VCR. On the other end, technologies that were completely controlled, such as Webcasting (and I would add DAT). He then tracks how much money the Cartel made from the new technologies.
You would expect that the correlation of control would be linear with profit but in fact it is reversed. The VCR has made more money for Hollywood than anything since Technicolor (and Jack Valenti still hasn't been strangled). Webcasting and other controlled technologies have profited precisely no one.
Fisher argues that an Ascap-like model of low/no initial fees and rigorous tracking is a better model in terms of nurturing fledgeling industries as well asn helping ensure that creators actually get paid. Not that anyone in Cartel-land is listening, but we thought it worth mentioning.
Also addressing the "What else can we do" question:
Steve Winwood is deliberately using the P2P networks to promote his new material. Here's how it works: he has released a new live version of his popular tune _Mr Fantasy_ onto the nets. A "behind the scenes" video is also in circulation. Each piece contains a small advertisement directing fans to the Web site of _Access Hollywood_, a TV program. On the site, you can find other Winwood tracks, register to win an autographed guitar, and buy his new indie CD.
The model here is, as noted, like television. As an artist, you go on a show (like Letterman or SNL) and play, do a bit of advertising for your material, and call it good publicity. Yes, people will record it and make copies, but that's OK - more advertising for you.
I'm not sure an overt advertising spot dropped in the middle of a performance is the right way to execute this model, but it's certainly worth trying. Access Hollywood is sponsoring the promotion, including paying the bandwidth costs of downloads.Posted by dr. wex on July 1, 2004 06:00 AM