www.NicolaBattista.it © ® ♪

Viene da chiedersi se l’epopea avrà mai una fine, quante altre battaglie potranno essere combattute e quante altre volte il risultato potrà essere rivoltato come un guanto.

Stiamo parlando della complessa ed annosa vicenda giudiziaria che vede da una parte i discografici americani rappresentati dalla solita RIAA, e dall’altra Jammie Thomas-Rasset, utente della Rete, rea di aver scambiato un mucchietto di file musicali in Kazaa, ormai sei anni addietro.

Qualche giorno fa, il 22 luglio, il terzo processo si è concluso con la riduzione della multa a carico della Thomas-Rassett a 54.000 dollari di danni, somma peraltro già apparsa in un precedente grado del processo, ma poi riportata all’astronomica cifra di 1 milione e mezzo di dollari.

Breve riepilogo: nell’agosto di 6 anni fa, Jammie si era vista recapitare una classica letterina di “cease and desist” dalla RIAA. Alla diffida era accompagnata una richiesta di pagamento: la Thomas aveva apparentemente condiviso 24 file mp3 in Kazaa nel febbraio del 2005, commettendo così una violazione di copyright. La donna rifiutò di pagare e l’anno dopo si vide citare in giudizio da parte delle major del disco.

Con un “tira e molla” a dir poco storico, la Corte Distrettuale condannò la Thomas prima a pagare 222.000 dollari di danni, nel 2007; due anni dopo la somma raggiunse la bellezza di 1.920.000 $, per poi essere ridotta dal giudice Michael J. Davis a soli 54.000 dollari. I discografici proposero addirittura un accordo che avrebbe consentito alla Thomas-Rasset di uscire dal caso pagando solo 25.000 bigliettoni. La caparbia donna e i suoi tenaci difensori risposero che avrebbero pagato al massimo i danni reali: 24 dollari. Un terzo processo civile si è chiuso a novembre 2010 nuovamente con una cifra importante, come dicevamo: 1.500.000 dollari.

Nuovamente, il giudice distrettuale Davis ha ora riportato la somma a 54.000 dollari. Davis è convinto che la donna sia colpevole e che abbia anche mentito in alcuni punti, per esempio cercando di attribuire le sue azioni ai figli o all’ex fidanzato; ciononostante, il giudice, che ben conosce il caso, ha di nuovo ritenuto di dover ridurre la sanzione che gli era apparsa eccessiva.

A questo punto però entrambe le parti restano in silenzio e valutano cosa fare: su CNET, Greg Sandoval riferisce che la RIAA è in disaccordo con la sentenza e sta valutando le prossime mosse da intraprendere. Nessun commento dai legali di Jammie, ma è tutt’altro che impossibile un ricorso alla Corte Suprema.

Jammie Thomas aveva 28 anni e veniva descritta come “ragazza madre” all’inizio del caso. Ne ha 34 adesso ed è sposata dal 2009. Kazaa esiste ancora ma è sconosciuto ai più ed è peraltro un servizio legale, in abbonamento, di proprietà di una società chiamata Atrinsic, Inc. La sua versione “corsara” – che circolò dal 2001 più o meno fino al 2006 – sembra un lontano ricordo. Probabilmente i più giovani adepti del filesharing non lo hanno mai neppure incrociato; tutta la vicenda comincia a sembrare surreale, quasi situata in un’altra epoca, per i tempi di Internet e della tecnologia.

Da più parti si fa notare come il caso – che avrebbe dovuto essere una pietra miliare, l’esempio col quale porre definitivamente un freno alla pratica della condivisione non autorizzata di file – finora sia stato solo un immenso spreco di tempo e denaro, oltre a non aver fatto bene all’immagine dei discografici stessi.

Speriamo che il 2011 segni la sua conclusione e che Jammie Thomas-Rasset possa conoscere il suo fato, perlomeno prima di avere anche dei nipoti…

(Si ringrazia Nicola D’Agostino per la collaborazione)

[Pubblicato da Mytech]

Nuovi guai per Universal: un gruppo di artisti prepara una class action per le royalty digitali.

Tutto comincia con Eminem, o meglio con la sua ex casa di produzione FBT e una causa che la contrapponeva ad Universal Music Group per le royalty relative alla distribuzione di musica online.

Per Universal, un mp3 è una “vendita” e quindi le royalty sono calcolate come si calcolano le vendite dei dischi. Con percentuali a favore dell’artista non proprio entusiasmanti (d’altra parte il costo del supporto fisico e i costi collaterali come grafica, studio di registrazione, promozione ecc. sono tutt’altro che trascurabili).

Nell’mp3, però, i costi si riducono drasticamente. Spesso, si tratta solo di riciclare materiale di catalogo nel nuovo formato digitale. E i contratti tra label e siti web fanno riferimento a una licenza: l’etichetta concede in licenza un master, che poi viene venduto da siti e servizi online oppure incluso in formule di abbonamento, e via dicendo.

Può sembrare solo una questione di forma; così non è: nel licensing – pensiamo a utilizzi multimediali come film, dvd, videogiochi – il compenso di un artista raggiunge anche 50% dei proventi.

Il caso Eminem, o meglio FBT/UMG, si è chiuso con una sconfitta per la major: il giudice ha sostenuto la posizione della parte attrice. E’ una licenza, bisogna pagare di più.

A questo punto molti osservatori del mercato hanno pronosticato una valanga di azioni analoghe da parte di altri artisti e produttori. La prima è stata quella degli eredi di Rick James, superstar del funk. Era inizio aprile 2011.

Qualche giorno fa si sono aggiunti altri pezzi grossi: come riferisce Hypebot, Rob Zombie, White Zombie, Whitesnake e Dave Mason sono i nomi coinvolti in una class action contro UMG, depositata alla Corte Distrettuale di San Francisco.

Universal per ora resta sulle sue posizioni: il contratto relativo ad Eminem era un caso particolare, non lo standard. Allo stesso tempo, molti altri legali studiano azioni simili per i propri clienti. Dunque le major del disco hanno da temere dal mondo degli mp3 legali più danni di quanti non ne abbia mai fatto il peer-to-peer non autorizzato? Una grana non da poco, in un momento molto delicato per il mercato.

Curiosità finale: in realtà dal caso Eminem, paradossalmente, chi non guadagnerà nulla è proprio l’artista stesso (!). Lo ha rivelato il 18 maggio MTV RapFix: in pratica, l’artista non si è unito in prima persona all’azione legale, che è stata portata avanti dai produttori di FBT. Ciò forse per non irritare la major, che è anche proprietaria di Interscope, la struttura con cui Eminem lavora tuttora.

Fatto sta che in mancanza di un accordo ad hoc (o di una ulteriore azione legale) nulla sarà dovuto da FBT a Marshall Bruce Mathers III…

[Pubblicato da Mytech]

"Nuvole" di musica anche per Google, che lancia un servizio per certi versi simile a quello recentemente avviato da Amazon. Parte stasera (solo per gli USA: gli altri se vogliono, tramite un qualche servizio proxy possono ammirare la home page e rosicare…) Google Music. Anzi, per adesso, accanto alla parola “music” c’è un grosso “beta”, perché il tutto è in fase sperimentale. “Music Beta by Google”. L’indirizzo è music.google.com. Continua…

Continua…

Continua…

I have read that the US Copyright Office is asking for opinions on the subject of Federal Law protection for recorded music masters. While this may just result in copyright owners lobbying trying to just a way for further copyright extensions, I thought to express some ideas about it.

I am a copyright owner myself, both of musical compositions and recorded masters.

First of all, I will never fully understand why in the American system it is allowed that for a banal mistake (forgetting to write “©” and the correct year in the credits, or similar issues) a 1968 or even 1998 can fall entirely out of copyright protection, while according to the results of the Capitol v. Naxos case, some pre-1972 recorded masters that originated outside USA, despite entirely public domain in the country of origin, may have a “common law” protection in the US and hence be protected eternally. Technically, under this presumed “common law” protection, even Edison Records’s early audio recordings (the oldest dating back to 1888) would still be protected (no other work made in 1888 is protected in the US: actually anything pre-1923 already fell into the Public Domain). Edison, luckily, falls out of this because the masters were acquired by a state agency: being the property of the US Government, they entered the Public Domain, just like the NASA picture of an astronaut or a photo taken by a soldier while in service.
Again, many movies have fallen into the Public Domain because of not being properly registered with the Copyright Office and issued before 1976. Since this applies to extremely popular works such as horror movie “Night of the Living Dead” and adult movie “Deep Throat”, I don’t see what would be so scandalous if it also applied to a Beatles album from the 1960s.

I have just read that the Copyright Office is accepting proposals about the introduction of Federal Law for pre-1972 music recordings. In the US law there has been a gap for a long time: since Federal Law protection never existed until 1972 for recorded music masters, you can easily see how many musical milestones (which are also the basis of some music majors’ businesses) would have gone entirely unprotected in America – namely the whole discography of the Beatles and a large chunk of discographies by the Rolling Stones, to make the most evident examples.

The infamous “Sonny Bono Copyright Extension” law of 1998 was basically drawn more by the movie industry than by other sectors of copyright owners.
Mostly, Disney needed protection on Mickey Mouse (it is still debated anyway what was the first published output incorporating Mickey Mouse; and since some of those were released without Copyright notice, Mickey Mouse itself – as a character – might still already be in the public domain, whatever Sonny Bono and friends did to the US legal system to save Disney properties).

In 2006, United Kingdom decided to confirm 50 years as a term for sound recordings to enter public domain: early Beatles recordings will start expiring January 1, 2012. This seems fair.

There are three points in the American copyright law that could be attacked relatively easily in my opinion:

1) it is unfair for someone who produced a recording prior to 1972 to enjoy a longer term of protection just because this “exception” set up the 2067 date without regard to the year in which the recording was made. This could mean that something recorded in 1930 would last 137 years, more than 40 years longer than something recorded in 2000 (95
years of protection).

2) the exception applies to foreign recordings too: an italian recording made in 1955 is now in the public domain in Italy or UK and I think all of Europe. The same identical recording could be claimed as “copyrighted” in the US since in the american territories the 95 year term applies and in this case the year 2067 term (!) since we are talking of a pre-1972 recording.

3) how do you consider a remastered 50+ years old recording that originated in the US and was remastered in Europe after the 50 years term expired, and then rereleased on cd and even exported to America?
– If you just consider the European term, the master is public domain and anyone can reprint or remaster that without licensing the sound recording (but probably licensing the compositions and paying for mechanical rights)
– If you consider the Sonny Bono exception, shouldn’t this be considered as a foreign product that of course has to be “protected” for 95 years, but it happens that the new copyright is controlled by the European company who produced the remaster?

The 2005 Capitol v. Naxos case has enough ground for a Supreme Court case. First of all, can “common law” be applied to Intellectual Property at all?
A song, a book, a poem, and so on are not like a material good. You can pass on a house to your heirs through the centuries. It is physical. In Europe, some ancient buildings, castles, palaces and so on have been in the hands of the same families for several centuries.
But we are not paying royalties to the (how many?) descendants of Dante Alighieri for his “Inferno”. Nor anyone is paying royalties to the eventual descendants of those who wrote sacred texts included in the Bible. If you apply that “common law” principle to Intellectual Property, be prepared to pay some person in Israel next time you print a Bible.

Second, let’s admit “common law” covers Capitol’s rights on recordings that are in the Public Domain elsewhere. Naxos is not based in US. In another country, in which the original masters are now in the Public Domain, Naxos created their own remaster. A remaster requires work: recovering a copy of the original (from tapes, 78 RPM vinyls or other media), cleaning, restoration, and so on.
Remasters are generally new copyrights. Record labels and movie producers often remaster and edit their materials; sometimes to create a better, cleaner version of some artist’s discography; some other time, for simple copyright purposes. Otherwise, certain operations conducted by Disney (adding new dubbing and soundtrack to some movies, even drawing new material into a classic movie like Pinocchio) would really have no “artistic” justification.
But if a remaster is copyrighted – even if just outside the USA – if the US don’t enforce these new copyrights coming from abroad, aren’t they in open violation of GATT/WTO principles and particularly the TRIPS (Trade-Related Aspects of Intellecual Property Rights) Agreement of 1994?
In other words, by saving the (weak) rights of the owners of old master recordings by means of “Common Law” of dubious application, the USA – after Capitol v. Naxos – is openly not respecting foreign copyrights on remasters.

Third, Capitol never owned those recordings in the first place, but just a license to release them in the US; they originated in UK on the Gramophone label which is part of EMI UK. If the original copyright doesn’t exist anymore, how can I still be the licensee for it?

I don’t know in which direction the Copyright Office might be working now, and I imagine many other suggestions and proposals will be coming in at the moment. I can imagine a lot of RIAA action and pressure also and in very creative ways. I remember Jack Valenti’s crazy idea from some years ago about copyright lasting “Forever minus one day” (since “forever” was not usable in the American law wording). I expect such type of display of creativity in this case too.

The request to extend terms to send opinions to the Copyright Office, also means their lawyers are at work (and they are late as usual).

But whatever the intention is, I think the US law should be reworked to get rid of elements of confusion such as the outcome of Capitol v. Naxos. If Federal Law has to be brought in for recorded masters made before 1972, this has has to result in shorter terms compared to those in use now not in further extensions that are negative both for creativity and for the business. In Europe, the very same label group that brought Capitol v. Naxos (EMI) through the subsidiary Disky released Elvis Presley and other 50+ years old recorded masters they never owned, because master recording copyrights have expired in Europe. They also sell these in the USA as imports in places like Amazon.

Basically, if Sonny Bono’s purpose ended being “you cannot do to Disney what Disney did to Collodi, Andersen and the Brothers Grimm”, the message of Capitol v. Naxos is “don’t do to EMI in USA what EMI is already doing to everyone else in Europe”.

In other words, with regard to Recorded Music Masters, Federal Law pre-emption will only be a good thing if:

– pre-1972 works not registered with the Copyright Office or published before 1989 but released without a (P) notice fall automatically in the public domain as recorded masters. After all, none of them could be copyrighted in the old system and certainly they could not be renewed on time before 1972, too.
– Common Law is kept out of scope.
– GATT/TRIPS principles are enforced and foreign Copyright on remasters too, hence removing the injustice perpetrated through Capitol v. Naxos.

The Founding Fathers never wanted an eternal copyright. In a world in which the request for a new vision in this area, more rights for the consumers and also more creative freedom for the artists (in regards to incorporating/rearranging elements of old works, orphan works and similar) are so high, a further extension of copyrights to a Federal level, without serious limitations, would basically result in just protecting the interests of a dying industry: the major beneficiary of such an extension – just like the major beneficiary of Capitol v. Naxos – would be the EMI group, through their control on Beatles’ masters. And – without any changes in their property and financial assets – EMI is a company that will be probably bankrupt within the first months of the current year.

Nicola Battista, journalist, music producer, author, Intellectual Property Consultant
Pescara, Italy, January 13, 2011.

(Document submitted electronically to the US Copyright Office in response to the “Notice of Inquiry requesting public input on the desirability and means of bringing sound recordings fixed before February 15, 1972 under Federal jurisdiction”; partially based on a message posted in 2006 onto the Rumori Mailing List)

Clamoroso: 45 milioni di dollari di risarcimenti per gli artisti. I veri pirati della musica in Canada? Non vengono da Internet.Erano le major del disco…(!)

Continua…

I cd promozionali non restano di proprietà delle case discografiche: le etichette adesive e diciture apposte non hanno alcun valore. Salvo Troy Augusto, venditore eBay, e salvi i diritti di consumatori (e collezionisti in particolare)

Continua…

Reading early comments and reviews about it will make you think: this seems too good to be true.

Mulve.com promises free, super-fast and great quality mp3 files, without the often lenghty waiting times of p2p systems like eMule or BitTorrent.

With the advantage of not being forced to share anything, not being based on peer-to-peer technology and (so it seems) not involving any responsibility for users (which remain anonymous and – not re-sharing the downloaded files from their side – do not become “liable” in any filesharing activity as it happens in other systems).

It seems the typical “Columbus egg”… the “celestial jukebox” dreamed by many users (okay, there’s already Spotify but not for everyone; plus Mulve is free) and also the ultimate nemesis for old school record labels; that, and the death of copyright.

Are we sure it is really like that?

Mulve states to have 10 million tracks available, and maybe this is true. it looks like heaven for users: just a small-sized download, no dubious spyware (even if some commercial banners are displayed), no kind of registration is required. Apart from the small program, the .zip file contains only a text file suggesting to make a donation. Right now Mulve needs 500 dollars to go on. As we type, they have already quickly secured about half of that.

You get the Beatles and the Stones but also exotic recordings like Italian pornstar Cicciolina performing a cover of “Russians” by Sting, half in English and half in Italian. But you may not find “everything”. There are relatively known names that might still be absent.

There’s the bonus of being able to read the bitrate and on average getting less junk (and no trojans or viruses) than most p2p systems. But there are also moments in which the sotware will be acting up and displaying “No results” even for most popular names. Luckily, you just need to shut down and restart the program, and results will be back.

In Mulve, which self-defines as a “music discovery program” you will not find movies, images, or software but just music. Provided that you can download the client. Because yes, Mulve.com has some issues. It will be probably too much success and too quickly. Oh well. There’s also an inevitable Facebook page.

The service states it will remain free and will be ad-supported; it even has some advertisers, already. Speed? Super-fast. In the range of hundreds of Kb per second, so in half a minute you will get any music track. Such a speed in normal p2p systems is unthinkable for many things.. In eMule it is maybe valid for the most popular recent music. In BitTorrent & co., maybe, for the most successful porn movies. Not having seeds or filesharing, the system is democratic: everything will be downloaded at the same, high speed (in p2p a rare track will probably only exist in one or two copies).

Will it be real glory? We have some doubts. No Mac or Linux versions at the moment. The legality remains uncertain, and some actions could still be taken. Mulve cannot be easily tracked: the domain name has been registered through a proxy (Protected Domain Service in Denver, Colorado; their site seems anyway dead). So we cannot know with a simple “whois” search who could be the site owner and his location. But authorities with a special mandate could verify the above and block the .com site and client distribution.

But the problem is that by then, the client will be already elsewhere. Duplicated on sites and traditional peer-to-peer systems (it is already happening). Renamed, modified, redistributed. And if servers are really in Russia as some suggest (and as the cyrillic characters in some of the filenames displayed in search results seem to confirm) things get more complicated. In In that country, record labels lost the batlle with sites such as Allofmp3.com years ago. “Loopholes” in the Russian law allow a sort of legalized piracy, with collective licenses released by a couple of entities that should in turn pay artists and producers (but in the end don’t). Mulve might reply on them, thus entering a vicious circle.

To record labels now well over their given deadline we can only advice to take all their back catalogue out of their drawers and put it online at accessible prices, not over the typical 99 US cents per track (but also not to exaggerate in the other direction: users will think they are being ripped off and they will stop paying at all: we are referring particularly to certain special offers seen in iTunes, which honestly seem an offence to those who previously paid full price for those albums…). if nothing goes wrong, Mulve will be another passing fad. After all, for example, file names are manipulated and not always exact, sometimes the nasty cyrillic characters appear; file quality is not always the same. In other words, if the US market – which is where the real match is being played – had a Spotify at hand, many people wouldn’t have areason to go onto Mulve for unauthorized copies.

A little bet: in a while, at Mulve‘s place they will run out of money and advertisers and the system will not be able to stay up. If it will survive, it will just mean that on the other side someone is not doing enough to let people understand that there are decent, legal and affordable alternatives.

Copyright and the Porn Industry: a match made in hell.
It seems the adult-oriented industry (whether it was Playboy Magazine vs. Italian 1970s not-exactly-a-clone Playmen, which had a second match about online sites in 1996, or adult majors vs. pirating internet websites) has always had great interest in the copyright debate.
In the past decades, an XXX movie studio or adult mag publisher has often had a better vision of things evolving in the copyright field, than their counterparts in “legitimate” and more “respectable” businesses like the music industry or mainstream moviemaking and book publishing. Or so it seemed.

One of the new p2p lawsuits hitting “John Does” (unknown users) allegedly sharing unauthorized material on peer-to-peer networks is about a classic porn movie. And a particularly important one: “Debbie Does Dallas”, distributed by VCX, which is responsible for the lawsuit.
“Debbie” is not only a porn classic; the movie, and things that surround it – including the myth of “disappeared” actress Bambi Woods – seems to be a piece of pop culture, which even resulted in an Off-Broadway musical, in recent years.
So, what apparently is happening is that VCX is finally enforcing their copyright on one of the most important adult movies ever made.
Nothing new or exciting, in that.

But this recent event (the news about the lawsuit are dated September 1, 2010) brings to memory another lawsuit from last year.
Between two adult “majors”: Arrow and VCX.

Basically, VCX was distributing DVD copies of another porn classic: “Deep Throat”. Arrow stated they owned the trademark and other trademarks connected (note: the lawsuit is about trademark, not copyrights…).
Arrow, on the other side, distributes “Debbie” and “The Devil in Miss Jones”. VCX seems to have claims on both.
Before anyone says, “ok, but this is crap that was produced more than 30 years ago, who has still interest in these?” it has to be said that all of these titles still generate nice profits for their distributors.

Now the horrible, horrible truth.
Speaking about the Arrow/VCX case, the Las Vegas Sun, in 2009, also quoting trademark attorney Ryan Gile, suggested that maybe these movies are in the public domain, and that the above mentioned companies despite the fight aren’t willing to have a judge rule that any of these is entirely non-copyrighted.

We did a quick check.
Debbie Does Dallas”? Seems to have been released without proper copyright notice. Pre-1989. It’s Public Domain. It has shortly appeared on Archive.org on September 6, 2010. Removed after a few hours because porn is not allowed there, not because of the copyright status, apparently. So much for the VCX/John Does case; a judge will have a lot of fun very soon.

“Deep Throat”?
1972 release. Like “The Devil in Miss Jones” (1973) it was never properly registered with the Copyright Office until 1978. A search in the records at Copyright.gov shows that both titles were registered June 27, 1978 together with a third – and more obscure – film from 1974, “Wet Rainbow”.
This should already be enough for it to fall in the Public Domain: before 1976, registration was mandatory, and you could not register the work at a later time.
It was only in 1976 that US law changed and did not consider anymore Copyright Office registration as a mandatory element for copyright to exist.
As for copyright notices for “Deep Throat”: at least for the copy we were able to see, the 1972 version – whether publicly screened or not (because some argue about this point, since initial screenings of the movie were controlled by the mob-linked family that financed it…) – apparently never had a proper copyright notice. One was added later for home video release (and seemed unreadable in a copy we watched, but it is probably “1981”) but the movie had already been out for ages at that point.

Funnily, VCX added a black screen with copyright information at the end of the DVD version; they must have a perculiar view of Roman numerals, because whatever they intended to type, that reads as “1907”.
Now, as we know, in 1907 Linda Lovelace (and full colour cinema) wasn’t even born, and the movie was made decades later.
But, if someone decided to use this 1907 date as a way to cover the copyright, that would be a very bad idea.
Anything pre-1923 is Public Domain anyway, according to the crazy, complicated, many times manipulated US Copyright Law.

This last bit should be enough to clear the Arrow/VCX case too. Am I wrong?

How would you react if you were a musician and the society of authors and publishers that represents you writes you officially to discourage supporting entities like Creative Commons, Public Knowledge or the Electronic Frontier Foundation, putting them on the same level as copyright thieves? Or ever to donate funds to “fight” these supposed “thieves”?

Certainly – in a historical moment in which you probably are enjoying sites and services such as Internet Archive and you have made your own use of a CC license at least once, maybe in places such as Wikipedia or Flickr – you would feel at least a bit perplexed.

But this is what happened to some members of (once?) respectable US society ASCAP, as reported by sites and blogs over the last couple days, starting with BoingBoing.

ASCAP is one of the three “sisters” (the other two being BMI and SESAC) dealing in music performance rights in the USA. It is one of the most important royalty collection agencies worldwide, for the music industry.

And for years has been embracing technology in a positive way; for example allowing public access to the ACE database: a searchable archive of millions of records which is an indispensable tool for some music professionals seeking for permissions, sample clearances, or simply checking credits when reprinting a certain song on cd or as mp3.

ASCAP – unlike other societies like Italy’s SIAE – is not difficult or expensive to join to. It just costed $10 to join in days when SIAE not only asked you much more than that but also required to complete one or two exams to prove you were able to write/read music and to compose lyrics. It costs a one-time $35 fee now with no annual dues (our lovely SIAE here has annual dues that are about three times ASCAP’s one-time fee).

But over the last couple of decades, ASCAP in various moments has self-exposed, causing a level of controversy.

Sometimes it was for a good reason: ASCAP seeked eventual performance royalties from download services; but honestly, the law never clearly explained what a downloaded mp3 is. Does it involve mechanical (reproduction) rights or performance rights? After all, a file transmitted over the internet is neither a printed record nor a song played in a club or on the radio. ASCAP lost, this time. But it was for a good cause, we could say.

Some other moves sound dumber, though.

Recently, ASCAP has attacked AT&T over ringtones (should people pay ASCAP when the phone rings and a fragment of song is “publicly” heard?); asked for double royalty payments on YouTube videos (i.e. payments from those who embed videos too, even if actually YouTube already pays for videos embedded elsewhere… since it is hosting that content!); asked sites like Amazon and Apple iTunes to pay for 30 second streaming clips (traditionally, in the US, those never required any payment since they are considered promotional excerpts, that help preview and sell tracks).

Finally sued a Manhattan pub over unpaid licensing fees, putting Bruce Springsteen’s name in the lawsuit (without Springsteen knowing or wanting to be involved); and the memory of a 1996 public relations disaster is still indelible: that was the time when ASCAP attacked girl scouts singing around campfires.

ASCAP lost the 2009 ringtone case in a District Court: public ringing is not a commercial public performance; phone companies and users don’t have to pay a royalty every time the phone rings.

It seemed they were really scraping the barrel between last year and the first months of 2010. Instead, a new level was reached when ASCAP urged some members – in writing – to finance fighting entities such as EFF, Creative Commons and Public Knowledge.

The timing for ASCAP’s move is suspicious. Does it have anything to do with CC’s “Catalyst Grants” initiative, collecting funds to “empower individuals and organizations everywhere that are working to make knowledge easily, freely, and legally available to everyone”? For the record, as I write, the initiative has collected over 27,000 of the proposed $100,000 to be distributed to creators. The Milan Chamber of Commerce – which certainly will not be happy in being labeled as a supporter of presumed “copyright thieves” – happily donated 10,000 Euros (over $10,000) to support innovation.

I tried to reach some of the parties involved and the reactions are mostly as expected, apart for the fact that Lawrence Lessig chose the wrong moment to pack for holidays, apparently (he was busy “trying to pull the world together”, in his words, before taking a break with the family).

Art Brodsky of Public Knowledge sent a quick message (through his Blackberry) that defines very well his astonishment and perplexity on ASCAP’s actions: “We are puzzled by their attention to us. We are in favor of a balanced copyright policy, not in favor of theft“.

Eric Steuer, Creative Commons‘ Creative Director told me:

It’s very sad that ASCAP is falsely claiming that Creative Commons works to undermine copyright. Creative Commons licenses are copyright licenses – plain and simple, without copyright, these tools don’t even work. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Artists and record labels that want to make their music available to the public for certain uses, like noncommercial sharing or remixing, should consider using CC licenses. Artists and labels that want to reserve all of their copyright rights should absolutely not use CC licenses.

Many tens of thousands of musicians, including acts like Nine Inch Nails, the Beastie Boys, David Byrne, Radiohead, and Snoop Dogg, have used Creative Commons licenses to share with the public. These musicians aren’t looking to stop making money from their music. In fact, many of the artists who use CC licenses are also members of collecting societies, including ASCAP. Incidentally, that’s how we first heard about this email campaign – many musicians that support Creative Commons received the email and forwarded it to us. Some of them even included a donation to Creative Commons.

Another reply to ASCAP came to us from Rebecca Jeschke, Media Relations Director of the Electronic Frontier Foundation:

We don’t really have much to say about this. Certainly, we are not “mobilizing to undermine ASCAP members’ copyrights” nor do we “want all music to be free.” We simply want to preserve balance and ensure that the Internet and digital technologies continue to empower people as consumers and creators. We believe that artists should be compensated for their work, and one proposal we have is Voluntary Collective Licensing: http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing.

The proposal mentioned by Jeschke is nothing new. The EFF document is dated 2008.

And if you wanna laugh, it was 2001 when I myself suggested (sorry, original article written for Interlex is in Italian…) that after all the original Napster was like other “private copy” systems, only without physical media (cd or cassette) involved. Of course there was no compensation form for copyright owners, unlike other media, and that was the big problem.

But this means a similar model could have been used, if the relevant parties had agreed on it.

ASCAP and other similar entities had more than a decade to express their view on that point, but apparently they never stopped for a moment to think. Lawsuits money could have been saved, consumers might have been given access to music and more rights; authors would have been compensated.

ASCAP could take a chance to examine EFF’s old proposal, propose suggestions to it, or – if any – alternative solutions to the old filesharing compensation problem; instead of scaring author members about nonexisting “threats” by entities such as CC, EFF and PK, that have only helped authors – and consumers – so far.

Special thanks to: Nicola D’Agostino, Rebecca Jeschke (Electronic Frontier Foundation), Art Brodsky (Public Knowledge), Joichi Ito, Eric Steuer (Creative Commons).

Marvelman. Miracleman. Names which sounds like legends to many comic book fans around the world.
And names that bring back decades-long controversy around character ownership and related copyright issues.

Born in 1954 to replace Fawcett’s Captain Marvel for the UK market (the “Big Cheese” had suddenly become unavailable to his readers: in the USA, National/DC had won a battle with rival publisher Fawcett over the character, too similar to Superman), Marvelman had been a favourite of British kids for a decade between the 1950s and 1960s. Then it was oblivion, until resurrection on “Warrior” magazine, under Derek (Dez) Skinn‘s direction. This also led to further publications in the USA on Eclipse between the 1980s and 1990s, under the Miracleman name (“Marvel” was definitely a sensitive word, in the American comics industry).

When in 2001 Neil Gaiman announced the formation of Marvels and Miracles, LLC to clear the copyright status of Marvelman/Miracleman and later sued Todd McFarlane over the ownership of some co-created characters, I tried to make some independent research. I had read George Khoury‘s fascinating book Kimota! The Miracleman Companion, published by TwoMorrows in 2001 (an updated “Definitive Edition” is due for release in August 2010), and through it had examined some of the information and versions given by some of the main “actors” in the Marvelman saga.

I performed websearches and tried to compare information from that book with data found online. In the end I checked the status of a company called L.Miller and Sons Ltd. (not “Son” but “Sons”, but apparently it seems to be a publishing company, so there is a good chance that we are talking of the same Miller company that went bankrupt in the 1960s), which turned out to be dissolved in 1990, many years after ceasing publications.

I came out with a few ideas; first the two obvious bits:
a) Marvelman started as a Captain Marvel clone (some of the characters are identical to their Fawcett counterparts);
b) it was Len Miller asking Mick Anglo to create that clone not to cease publication of some popular comic book titles;

then there are some infos that can be taken out of the Kimota! book:
c) Mick Anglo (directly or through his collaborators) was performing work-for-hire for Len Miller’s company; copyright law certainly wasn’t his main area of expertise.
d) it is dubious that Derek Skinn acquired anything when starting to publish Marvelman in Warrior. According to what Alan Moore suggested in his Kimota! interview, the rights could still be with the “official receiver” after Miller went into bankruptcy.

Finally, my own little, above-mentioned, discovery:
e) a company called L.Miller & Sons Ltd. (not “& Son” like often quoted) was dissolved in the United Kingdom in 1990. Apparently, nobody acquired its assets.

What conclusions can be drawn out of all this?
If Marvelman is heavily plagiarised from Captain Marvel, it is basically a bootleg of a Fawcett/DC character. It now belongs to DC and always belonged. ’nuff said.

If Marvelman had some level of originality/copyrightability, it was a L.Miller & Sons copyright, created/written/drawn by Mick Anglo’s studios as work-for-hire. Anglo never owned anything as he says in his own words on the Kimota! interview.
Skinn sort of bought Anglo’s silence through small payments for some reprints, in the 1980s. But certainly didn’t acquire any real rights from him or other sources.

If Miller owned the copyright, Skinn should have bought the rights off the “official receiver”. A bankruptcy court, since L.Miller & Sons went bankrupt around 1966. Neither Skinn nor anyone else ever provided any evidence to have done so.

Marvelman and its subsequent incarnation Miracleman stayed with L.Miller, as copyrights.

All of the subsequent passages involving people like Alan Moore, Neil Gaiman, Eclipse Comics, Todd McFarlane (who tried to recycle the character in his “Spawn” comics and even produced a Miracleman resin statue) and other people have no value, since all of those “shares” that were traded originated from Skinn. Who had nothing in his hands, in first place.

And of course Marvel acquiring the rights on the character from Mick Anglo (through Emotiv Records in Glasgow) is even more dubious, since Anglo didn’t own them in first place.

Miller’s company was dissolved in 1990: since nobody acquired anything, according to the British law, its assets now belong to the Crown.

This is what I discovered years ago and tried to get to Neil Gaiman via some Internet forum. I have no idea if he ever saw that.
And I don’t have 100% proof that my version is the definitive one: the L.Miller & Sons company I’ve found might not exactly be the same “L.Miller & Son” mentioned by many other sources. Someone in UK might go and check all of this better, and find evidence supporting my vision or denying it. Provided that some further tracks can still be found after all these years.

One last element needs to be checked; recently, in April 2010, my attention was caught by some bits of the Marvelman entry in Wikipedia (English language). Those bits suggested that another UK publisher who worked mostly with cheap reprints of American comics for British audiences, Alan Class Ltd., had acquired at least printing plates (if not the rights) to Marvelman, directly from L.Miller & Son.

Knowing that in 2005 Alan Class’ personal collection was put on sale by UK dealer 30th Century Comics, I contacted them.
Will Morgan of 30th Century Comics was so kind to reply:

Thank you for your enquiry. Unfortunately, you are misinformed.

There were several other similar publishers (Strato, Arnold, etc.) during the period US comics were largely undistributed in the UK, and while there were links between many of them, Miller and Class were two separate and distinct publishers.

This solves one problem and keeps at least Alan Class and his company out of the enormous mess, but of course doesn’t clarify what happened to Miller’s assets (who eventually acquired them?).

Personally, I prefer to believe my finding to be the ultimate solution: it would be just natural – and somewhat poetic – that the only true British superhero belonged directly to the British Crown. :)

And since in the meantime Marvel was acquired by Disney, one could anticipate what we will see at some point in the future: high-level negotiations between Mickey Mouse and Queen Elizabeth over Marvelman/Miracleman’s rights; that’s an eventuality, and it wouldn’t be the most absurd bit of the Marvelman legal saga.

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