Read All About It.
This small article appearing in the most recent New Yorker looks at Rupert Murdoch's purchase of Dow Jones Inc. (and it's crown jewel, the Wall Street Journal). I guess I've had journalism on the brain lately.
This article is obviously conclusory in that frustrating fashion of many New Yorker articles (Rupert Murdoch has killed the WSJ! before the first article with him at the helm has been published). However it's also brilliantly succinct -- another hallmark of the magazine -- and nicely sets the stage for what I hope will be more in-depth and nuisanced looks at the current state of journalism in our country.
I'd probably be overstating things to suggest that this issue might be something debated in the upcoming presidential election. But it's hard not to notice that the current state of journalism is a microcosm of the current state of our culture.
The story features the convergence of technology, law, politics, and capitalism.
There is so much about which to be hopeful: more sources of information than any other time in the history of mankind and available more conveniently than any other time.
But there is also so much about which to be cautious.
I think it's legitimate to be cautious about the role that profit margins and bottom lines play in the definition and distribution of "news." I tend to see journalism as the free market of ideas. So in the end, I believe that the market will always create a source that focuses on more than simply hype, PR, celebrities, and the weather. But quote unquote Serious Journalism is time consuming and expensive.
Therefore, I think that it is legitimate to be cautious about the way Wall Street values things. Wall Street hammers newspaper stock prices and we're told over and over again that newspapers are dying dinosaurs. Yet, from that PBS series I learned that the LA Times was doing $1bn in revenue, $200mm in profit, 20% profit margins and everyone concedes that these are really strong numbers. And meanwhile firms on Wall Street are at best hemorrhaging and at worst blowing up because they were investing in instruments that were heretofore completely incorrectly valued. Are we sure that the LA Times is a bad investment now?
I think that it is legitimate to be cautious about the role that digital technology will play going forward.
On one hand, there is no question that digital technology allows for some awesome things. Take The New York Times online for example. It features longer, investigative pieces. Shorter, right to the point news pieces. Compelling editorial writers. All pretty standard newspaper stuff. But then it has adopted to the net and features blogs, video-journalism, and podcasts and audio-journalism (in fact, Backstory might be my favorite part of the Times; my only wish is that they'd keep the Backstory link more up-to-date.). It's one-stop-shopping for overburdened consumers of news.
On the other hand, I think that digital technology has the potential to turn the Copyright Act into the Internal Revenue Code, with arbitrary laws and distinctions, and reading more like a negotiated contract than a principled legal document. And the result of this is clear: people are becoming increasing cynical about copyright law (it seems like some people believe that copyright law is a weapon solely created by the "RIAA" and wildly swung around in an attempt to kill us all rather than something that was expressly recognized by the federal Constitution). I think this is a very bad thing for both journalism and our culture as a whole.
I don't want to go on too long, but I think there's a lot to unpack here. I'd love to hear what other people think about this.
Showing posts with label Copyright Act. Show all posts
Showing posts with label Copyright Act. Show all posts
Sunday, August 12, 2007
Thursday, June 28, 2007
(06.28.07) Recommends
Web Royalty Redux.
I thought that today I would add a little more meat to the bones of yesterday’s post. I want to look at the mechanics behind the royalty rate increase "controversy."
The first thing to think about is how the Copyright Act is implicated when you, e.g., listen to a CD (I know that it is so old school to actually listen to CDs, but just play along). There are at least two copyrights in a CD: first, there is copyright in the "musical work" (what you think of as "the tune," both the underlying arrangement of notes and any accompanying words), 17 USC 102(a)(2); secondly, there is copyright in the "sound recording" (the actual recorded sound that comes out of your speaker), 17 USC 102(a)(7). The copyrights are not necessarily held by the same party: copyright in the musical work is initially owned by the party who wrote the music – the composer and lyricist – while copyright in the sound recording is initially typically held by the producer who arranged for the song to be recorded. Of course, the holder of the right may be determined by contract, with the record label often owning at least the latter copyright, if not both.
Okay, so now that we understand that there are two distinct copyrights in play, what rights actually attach to these copyrights? Copyright owners hold four basic rights, the right to: reproduce, prepare derivative works, distribute, and to publicly perform. 17 USC 106. The "musical work" copyright gets all of these rights. The "sound recording" gets the first three, and a modified version of the fourth. The modified version is the right to perform publicly by means of a digital audio transmission, and this right did not come into being until the Digital Performance in Sound Recording Act of 1995.
So what does all of this mean? Well, let's go through an example. When a terrestrial radio station plays a song, it is publicly performing the musical work and the sound recording. It pays the song writer (or whoever owes the musical work copyright) for its use of the copyrighted musical work, but it does not pay for its use of the copyrighted sound recording. Why? Because copyright in sound recording only applies to digital transmissions, which by the terms of its definition in the Copyright Act exempts terrestrial radio. When an internet radio station plays a song, it has to pay for use of both of the copyrights. Arbitrary, you say? Of course it is. But, anybody who has ever paid taxes or been pulled over for speeding when every car around them was going faster has experience with an arbitrarily written or enforced law. Arbitrary laws are nothing new in this country. But to be clear, this sound recording performance right result cannot be justified on the basis of copyright law; it is solely to be chalked up to the power of the terrestrial radio lobbying efforts (let me repeat this for all of you out there who think the recording industry is the root of all evil: radio broadcasters using the political process to reach a result that is favorable for their side, but that makes no sense from a legal standpoint).
The rate increase "controversy," then, is dealing with the price of that digital sound recording performance copyright. Webcasters (as is true with the musical work fee paid by terrestrial radio broadcasters) pay one statutorily based rate - a per performance "compulsory license" -- for each performance, rather than having to negotiate a different rate for each performance (if I didn't write that sentence clearly, think of it this way: rather than broadcasters having to negotiate, and therefore pay a lot more, to play an Elvis Presley song than an Elvis Perkins song, there is a single rate that is paid per performance, regardless of the song).
The Copyright Act provides a mechanism to reach that royalty rate. First, it encourages the copyright holders and the internet broadcasters to privately negotiate and reach a desirable rate on their own. 17 USC 114(e). Only after these negotiations fail do both sides come before a Copyright Royalty Judge who commences trial-type proceedings, 17 USC 114(f). This means that both sides put on witnesses and evidence, just like they would if they were having a trial, and at the end the Copyright Royalty Judge comes down with a ruling.
So let's apply this to the "controversy" at hand. At first, the copyright holders and broadcasters came together to negotiate. Some of the initial members of the internet broadcasters included: Microsoft, America Online, Yahoo, and Clear Channel Communications (it is worth keeping this in mind when you see coalitions such as Save Net Radio framing the issue as Big Govt vs. Mom and Pop Radio). Both sides presented a proposal, bolstered with evidence and witnesses. Included among the internet broadcasters' witnesses included economics professors, finance experts, and corporate executives. At the end of the trial, the Copyright Royalty Judges (there were three that presided over the hearings) came down with their ruling.
In this case, the copyright holders proposed a rate of either 30% of gross revenues or a per performance rate starting at $0.0008 and increasing to $0.0019 by 2010 (the statute calls on the Copyright Royalty Judges to set rates in five-year blocks), whichever was higher. The internet broadcasters offered various revenue-based percentages, and various per performance rates, starting at $0.00025 per performance (so note that when critics of the fee increase call the rate "outrageous" they are talking about a difference of $0.00055 per performance; I'd calculate the percentage difference in those two numbers but I don't have a calculator that allows me to enter that many digits on the right side of the decimal point). Both sides presented their proposals and evidence and witnesses, and after a 48-day hearing, the judges came out with the numbers I presented yesterday.
The biggest complaints I've read regarding this "controversy" are that this is an example of Big Govt v. "Little Mom and Pop" and that the music industry was the only player in setting the rates; that somehow the internet broadcasters were not at the table in the rate setting discussion. Plainly, both of these are just false.
And, on a personal note, whenever I see shadowy coalitions talk about "Little Mom and Pop," and then fail to mention that "Little Mom and Pop" includes parties such as Microsoft and Clear Channel, I start thinking that the "controversy" is nothing but a big budget PR campaign (see, generally: smoking is not bad for you, presented by shadowy coalitions brought to you by tobacco companies; lawyers are bad for you, presented by shadowy coalitions brought to you by insurance companies).
Think what you want to think about these rates, leave me comments, email me, etc. But at least take a few minutes to read the ruling before you buy into the conspiracy.
I thought that today I would add a little more meat to the bones of yesterday’s post. I want to look at the mechanics behind the royalty rate increase "controversy."
The first thing to think about is how the Copyright Act is implicated when you, e.g., listen to a CD (I know that it is so old school to actually listen to CDs, but just play along). There are at least two copyrights in a CD: first, there is copyright in the "musical work" (what you think of as "the tune," both the underlying arrangement of notes and any accompanying words), 17 USC 102(a)(2); secondly, there is copyright in the "sound recording" (the actual recorded sound that comes out of your speaker), 17 USC 102(a)(7). The copyrights are not necessarily held by the same party: copyright in the musical work is initially owned by the party who wrote the music – the composer and lyricist – while copyright in the sound recording is initially typically held by the producer who arranged for the song to be recorded. Of course, the holder of the right may be determined by contract, with the record label often owning at least the latter copyright, if not both.
Okay, so now that we understand that there are two distinct copyrights in play, what rights actually attach to these copyrights? Copyright owners hold four basic rights, the right to: reproduce, prepare derivative works, distribute, and to publicly perform. 17 USC 106. The "musical work" copyright gets all of these rights. The "sound recording" gets the first three, and a modified version of the fourth. The modified version is the right to perform publicly by means of a digital audio transmission, and this right did not come into being until the Digital Performance in Sound Recording Act of 1995.
So what does all of this mean? Well, let's go through an example. When a terrestrial radio station plays a song, it is publicly performing the musical work and the sound recording. It pays the song writer (or whoever owes the musical work copyright) for its use of the copyrighted musical work, but it does not pay for its use of the copyrighted sound recording. Why? Because copyright in sound recording only applies to digital transmissions, which by the terms of its definition in the Copyright Act exempts terrestrial radio. When an internet radio station plays a song, it has to pay for use of both of the copyrights. Arbitrary, you say? Of course it is. But, anybody who has ever paid taxes or been pulled over for speeding when every car around them was going faster has experience with an arbitrarily written or enforced law. Arbitrary laws are nothing new in this country. But to be clear, this sound recording performance right result cannot be justified on the basis of copyright law; it is solely to be chalked up to the power of the terrestrial radio lobbying efforts (let me repeat this for all of you out there who think the recording industry is the root of all evil: radio broadcasters using the political process to reach a result that is favorable for their side, but that makes no sense from a legal standpoint).
The rate increase "controversy," then, is dealing with the price of that digital sound recording performance copyright. Webcasters (as is true with the musical work fee paid by terrestrial radio broadcasters) pay one statutorily based rate - a per performance "compulsory license" -- for each performance, rather than having to negotiate a different rate for each performance (if I didn't write that sentence clearly, think of it this way: rather than broadcasters having to negotiate, and therefore pay a lot more, to play an Elvis Presley song than an Elvis Perkins song, there is a single rate that is paid per performance, regardless of the song).
The Copyright Act provides a mechanism to reach that royalty rate. First, it encourages the copyright holders and the internet broadcasters to privately negotiate and reach a desirable rate on their own. 17 USC 114(e). Only after these negotiations fail do both sides come before a Copyright Royalty Judge who commences trial-type proceedings, 17 USC 114(f). This means that both sides put on witnesses and evidence, just like they would if they were having a trial, and at the end the Copyright Royalty Judge comes down with a ruling.
So let's apply this to the "controversy" at hand. At first, the copyright holders and broadcasters came together to negotiate. Some of the initial members of the internet broadcasters included: Microsoft, America Online, Yahoo, and Clear Channel Communications (it is worth keeping this in mind when you see coalitions such as Save Net Radio framing the issue as Big Govt vs. Mom and Pop Radio). Both sides presented a proposal, bolstered with evidence and witnesses. Included among the internet broadcasters' witnesses included economics professors, finance experts, and corporate executives. At the end of the trial, the Copyright Royalty Judges (there were three that presided over the hearings) came down with their ruling.
In this case, the copyright holders proposed a rate of either 30% of gross revenues or a per performance rate starting at $0.0008 and increasing to $0.0019 by 2010 (the statute calls on the Copyright Royalty Judges to set rates in five-year blocks), whichever was higher. The internet broadcasters offered various revenue-based percentages, and various per performance rates, starting at $0.00025 per performance (so note that when critics of the fee increase call the rate "outrageous" they are talking about a difference of $0.00055 per performance; I'd calculate the percentage difference in those two numbers but I don't have a calculator that allows me to enter that many digits on the right side of the decimal point). Both sides presented their proposals and evidence and witnesses, and after a 48-day hearing, the judges came out with the numbers I presented yesterday.
The biggest complaints I've read regarding this "controversy" are that this is an example of Big Govt v. "Little Mom and Pop" and that the music industry was the only player in setting the rates; that somehow the internet broadcasters were not at the table in the rate setting discussion. Plainly, both of these are just false.
And, on a personal note, whenever I see shadowy coalitions talk about "Little Mom and Pop," and then fail to mention that "Little Mom and Pop" includes parties such as Microsoft and Clear Channel, I start thinking that the "controversy" is nothing but a big budget PR campaign (see, generally: smoking is not bad for you, presented by shadowy coalitions brought to you by tobacco companies; lawyers are bad for you, presented by shadowy coalitions brought to you by insurance companies).
Think what you want to think about these rates, leave me comments, email me, etc. But at least take a few minutes to read the ruling before you buy into the conspiracy.
Wednesday, June 27, 2007
(06.27.07) Recommends:
Reading Rules Before Complaining About Them.
I don't know how your web surfing has been going lately (btw, do people even use that word anymore -- websurfing? So quaintly 90s, right?) but I'm growing increasing exasperated at all these blogs complaining about the Copyright Royalty Board's implementation of new royalty rates that webcaster's must pay to play music. A bunch of web radiocasters engaged in a Day of Silence in protest. Coalitions have been formed, to get people aware of the "problem."
Here's the thing. Go ahead and Google this problem. What do you come up with? A bunch of blogs complaining of "outrageous rates" that are "putting webcasters out of business" and "taking food out of people's mouths" by charging "more in fees than we can possibly make up in revenue."
Which is all very concerning. Except that none of the blogs or articles say what the rates are, or what the rates were, or how much money they are losing. Editor's note: this is not a good way to convince people of your point.
So, for my sanity, if not yours, today I present the CRJ's Final Determination of Rates and Terms. Now, I'm not completely finished hashing through the opinion, but here's something that immediately jumps out at me: it includes the rates! And here are the rates:
These numbers are conveniently left out of all anti-fee discussion I have seen. Why? I'm not sure, but here is a possibility. For people who live in the Bay Area, and pay...
...it would be awfully hard to work up the energy to write passionate blog posts about zeros and zeros of cents. But it's much easier when we can scream : the govt is interfering with our lives, harming the little guy and making the rich richer! Editor's note: Everybody stop your damn screaming.
Read the opinion first. I'll be sure to wake you up in the middle up it, because I'm pretty sure you'll fall asleep reading it -- it turns out the reality is much more boring -- and much less outrageous -- than the screaming blog posts suggest.
Copyright Royalty Judge -- Final Determination of Rates & Terms -- pdf.
I don't know how your web surfing has been going lately (btw, do people even use that word anymore -- websurfing? So quaintly 90s, right?) but I'm growing increasing exasperated at all these blogs complaining about the Copyright Royalty Board's implementation of new royalty rates that webcaster's must pay to play music. A bunch of web radiocasters engaged in a Day of Silence in protest. Coalitions have been formed, to get people aware of the "problem."
Here's the thing. Go ahead and Google this problem. What do you come up with? A bunch of blogs complaining of "outrageous rates" that are "putting webcasters out of business" and "taking food out of people's mouths" by charging "more in fees than we can possibly make up in revenue."
Which is all very concerning. Except that none of the blogs or articles say what the rates are, or what the rates were, or how much money they are losing. Editor's note: this is not a good way to convince people of your point.
So, for my sanity, if not yours, today I present the CRJ's Final Determination of Rates and Terms. Now, I'm not completely finished hashing through the opinion, but here's something that immediately jumps out at me: it includes the rates! And here are the rates:
$0.0008 per performance, 2006 (the fees are retroactive).
$0.0011 per performance, 2007.
$0.0014 per performance, 2008.
$0.0018 per performance, 2009.
$0.0019 per performance, 2010.
These numbers are conveniently left out of all anti-fee discussion I have seen. Why? I'm not sure, but here is a possibility. For people who live in the Bay Area, and pay...
$3.50 per gallon of the cheapest Rotten Robbie gasoline;
$4.00 per grande cuppashittychino;
$10.00 per cheapest six pack of beer;
$1000 per month for small one bedroom apartment;
...it would be awfully hard to work up the energy to write passionate blog posts about zeros and zeros of cents. But it's much easier when we can scream : the govt is interfering with our lives, harming the little guy and making the rich richer! Editor's note: Everybody stop your damn screaming.
Read the opinion first. I'll be sure to wake you up in the middle up it, because I'm pretty sure you'll fall asleep reading it -- it turns out the reality is much more boring -- and much less outrageous -- than the screaming blog posts suggest.
Copyright Royalty Judge -- Final Determination of Rates & Terms -- pdf.
Saturday, December 2, 2006
(12.02.06) Recommends:
Giving me something to talk about.
Holy goodness! I have not had anything to recommend since like the middle of October. And it's not for want of awesome things taking place in the world. It's because I've been completely out of the loop. No joke: this week alone I have spent the better part of two entire days thinking about this legal theory called "right of publicity", which is a "creature of state law", and I've been seeing how it intersects with, and is possibly preempted by, federal copyright law.
Why have I been dwelling on this issue lately? The answer to that would be long, and most definitely not be interesting to any of you, my dear readers. So. Proposition: send me an email, and tell me something that you have experienced lately that has inspired you. Seriously. I know people read this site (yes, yes, I know things people). And I'd love to hear what people are experiencing as I am hiding out. And that way, I can have something to write about.
Also: I recently made a Best of 2006 CD that I would be happy to send to anybody who is interested. Again, just drop me an email.
Holy goodness! I have not had anything to recommend since like the middle of October. And it's not for want of awesome things taking place in the world. It's because I've been completely out of the loop. No joke: this week alone I have spent the better part of two entire days thinking about this legal theory called "right of publicity", which is a "creature of state law", and I've been seeing how it intersects with, and is possibly preempted by, federal copyright law.
Why have I been dwelling on this issue lately? The answer to that would be long, and most definitely not be interesting to any of you, my dear readers. So. Proposition: send me an email, and tell me something that you have experienced lately that has inspired you. Seriously. I know people read this site (yes, yes, I know things people). And I'd love to hear what people are experiencing as I am hiding out. And that way, I can have something to write about.
Also: I recently made a Best of 2006 CD that I would be happy to send to anybody who is interested. Again, just drop me an email.
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