Archivio dei testi con tag 'music'



Plagi & somiglianze: Allevi copia dal Super Nintendo? ;)

Plagi e somiglianze: in molti hanno pensato di riconoscere citazioni di temi di John Williams (“Superman“) o altro nel brano “O Generosa” commissionato a Giovanni Allevi come inno per il campionato di calcio di Serie A.
Vogliamo segnalare qui una somiglianza ben più evidente ed inquietante, tra il tema musicale di un classico videogame per Super Nintendo (“Sensible Soccer – Main Theme” composto da Richard Joseph) e la parte di “O Generosa” con il coro.

Awesome Tapes from Africa (dj set)

Brian Shimkovitz (Awesome Tapes from Africa, www.awesometapes.com).
Pescara, December 9, 2011. Maze Eclectic Circle.

Brian collects tapes from different African countries and cultures, and showcases them onto his blog and in his dj sets. Cover art of the tapes is projected on the wall behind him during the performance.

Awesome Tapes from Africa

some of Brian Shimkovitz's tapes

Awesome Tapes from Africa

Awesome Tapes from Africa

Awesome Tapes from Africa

L’ascesa di Spotify, le mosse di Music Beta by Google

Spotify è finalmente attivo in USA: e punta a 50 milioni di utenti. Intanto Google non sta a guardare…

Le grandi manovre che potrebbero cambiare la faccia del “circo” della musica online continuano: Spotify, come ampiamente annunciato, è finalmente sbarcato negli Stati Uniti.

E i primi dati sono incoraggianti. Il noto servizio di streaming, che ha già all’attivo una discreta popolarità e 10 milioni di utenti in alcuni paesi europei, punta ad aggiungere la ragguardevole cifra di ben 50 milioni (!) di utenti statunitensi entro fine anno; ciò può sembrare un obiettivo fin troppo ambizioso. Ma d’altro canto, il fondatore Daniel Ek sembra fiducioso e anzi dichiara a CNN che le limitazioni (la necessità di ricevere un “invito” per entrare nel servizio) sono state implementate proprio per avere una crescita graduale e non “crollare” sotto il peso di troppi nuovi iscritti tutti insieme.

Un altro obiettivo decisamente ambizioso? Rendere disponibile tutta la musica registrata esistente al mondo: non solo i cataloghi delle major d’occidente quindi, ma musica asiatica, africana, sudamericana e via dicendo.

Con 15 milioni di brani in tasca, Spotify è sulla buona strada e – come abbiamo detto in altre occasioni – si candida ad essere il vero “juke-box celestiale” che la Rete attende da sin troppo tempo.

Ma uno dei principali (potenziali) concorrenti non sta a guardare: si tratta di quel Music Beta by Google nato in fretta e furia e quasi in contemporanea a iniziative simili di Apple ed Amazon. Se tutti questi servizi hanno in comune l’idea della “cloud“, della nuvola dove immagazzinare qualcosa e a cui accedere, piuttosto che avere i file sempre presenti sui propri apparecchi, va detto che la differenza principale è che le “nuvole” di Amazon e Google erano state lanciate senza permesso da parte dei detentori di diritti e quindi senza contenuto, proprio come “scatole vuote” da riempire coi propri file. Diversamente da quanto poi annunciato da Apple, e ovviamente anche dal vasto repertorio in streaming licenziato da Spotify. Google, però, sta da qualche tempo “riempiendo la scatola”. Non solo: di fatto è aperto anche a utenti nostrani. Anche se tuttora chi si reca su music.google.com trova un messaggio che riferisce che il servizio è limitato agli USA, chi aveva mesi fa richiesto un invito si è trovato ad avere accesso al servizio musicale di Mountain View.

Sorpresa: al primo accesso si possono selezionare i generi musicali preferiti (potete anche selezionarli tutti…) e ricevere brani ascoltabili gratis. Generalmente non si tratta di album completi ma di uno o più brani estratti da un disco. Il repertorio è però limitato: tutti questi brani arrivano da etichette indipendenti riconducibili all’aggregatore IODA, o da un’unica major: Sony. Come dire: qualcosa è stato fatto ma il grosso manca ancora all’appello.

L’upload dei propri brani già in proprio possesso lascia a desiderare: chi scrive è riuscito a caricare diverse centinaia di mp3 nel proprio account; allo stesso tempo ha ricevuto molti messaggi d’errore per file che Google ha incluso nella ricerca ma che non è riuscito a caricare (in alcuni casi, file protetti da DRM, ma anche semplici mp3 non protetti).

Insomma, di lavoro da fare ce n’é ancora molto, anche se qualcosa si è mosso a Mountain View; in attesa di vedere all’opera l’iCloud di Apple, solo Amazon resta al palo.

[Pubblicato da Mytech]

Federal Law Protection on pre-1972 Recorded Music Masters in the United States?

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)

Mulve, too good to be true?

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.

Music & Copyright: ASCAP vs. The World; The World vs. ASCAP?

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).

Malcolm McLaren (1946-2010): the Ultimate Bastard.

It’s better to be a flamboyant failure than a benign success.
Malcolm McLaren

To be bad is good… to be good is simply boring
Rose Corre Isaacs, grandmother of Malcolm McLaren

He “invented” punk, scratching, vogueing and chip music, single-handedly. Or so it looked to many. ;)
He wanted to run as Mayor of London and -circa 1983- was indirectly responsible for the birth of seminal UK group Art of Noise.
He used African music, Puccini arias and Strauss waltzes selling them as if they were his own composition. Forgot to pay or at least credit some people in the process, but that was part of the game.
He ripped off countless people, including members of his own creature the Sex Pistols, and was a bastard.
Hearing Malcolm McLaren left us at 64, because of a bad form of cancer, wasn’t fun though.
He was a bastard, I said, but a fine bastard. Even John Lydon who probably didn’t have much simpathy for him in many moments was reported saying he will miss him.

McLaren was a legend: he managed Sex Pistols and is seen as almost the originator of punk.
In that process, he actually stole many elements from Richard Hell, which he had seen in US. Hairstyles, clothing, accessories and more were directly taken from Hell (pun intended) and thrown onto the UK scene. The “Sex” store he ran with (then partner) Vivianne Westwood started popularizing punk stuff. The Pistols exploded in UK and changed music history.
The Beatles were the first to have control of their own material and compositions.
The Pistols showed you didn’t even need the Beatles’ skills to make a fine mess. Liberation.
McLaren promoted the idea of a great “rock’n’roll swindle”. But ironically, the major the Pistols criticized in the legendary song “E.M.I.” later ended up owning Virgin, and thus the master itself of the parody song.

McLaren later started a solo career which had some brilliant peaks: the seminal 1983 album “Duck Rock”; the opera-inspired pastiche album “Fans”, including masterpieces like “Madam Butterfly”; “Waltz Darling”, which juxtaposed Jeff Beck and Bootsy Collins to Strauss waltzes and dances directly stolen from aspects of the US black gay scene. The French-inspired atmospheres of “Paris”, from 1994, featuring living icons like Catherine Deneuve and Françoise Hardy.
He even managed to get a track in one the Kill Bill movies and get into legal troubles in France over an alleged sample in it.
That was an old vice. Not paying Sex Pistols in full (and losing a lawsuit to them). Getting into trouble with Puccini’s heirs about “Fans”.
Personally, about a decade ago, after writing a review of “Duck Rock” for a site, I was contacted by a person claiming to be the offspring of some American musician whose folk music had been incorporated into bits of that album without ever being properly credited.
In the meantime, his output was being stolen by everyone else, himself becoming source of inspiration over at least a couple decades to too many to name all, from Tim Simenon (Bomb The Bass) in “Megablast” to Eminem to apparently unsuspectable people like Mariah Carey.

Then there were the last 7-10 years or so, in which McLaren sounded tired, almost unable to catch trends in advance as he usually did. By the time he spoke enthusiastically about “chip music”, made onto old 8-bit computers, the scene had already been around for years and had already generated live acts and commercial releases. Blasts from the past like the never completed “Fashion Beast” film project with Alan Moore (from the 1980s) resurfaced. Even a 1998 work, “Buffalo Gals – Back to Skool” which among others had none else than hip-hop superstar Rakim in it, was already another echo of past glories: he looked like he was living in the past without realizing.
Some of his most incredible adventures are chonicled in a 1991 book called The Wicked Ways of Malcolm McLaren. An illuminating take on many of the crazy things he was involved with.
He was a fascinating character. An old style band manager. A multi-talented (or talentless?) prankster and artist. A pirate. And a bastard. The Ultimate one.
They don’t make that kind anymore these days: Alan McGee sorta agrees on that.

Music review: Simon Harris – “Beats Breaks and Scratches Vol. 10”

Artist: Simon Harris
Genre: Breakbeats/Sample CD
Release Date: 1993
Review by DjBatman
3½ stars out of 4

This disc, or better this series of albums, is specifically designed for dj’s and producers. Simon Harris is a pioneer in the art of djing: his collections of breaks and sound samples still sound exceptional today, years after they came straight out of his sampler. Continua…

Music review: Black Dog – “Babylon Part 1”

Artist: Black Dog
Genre: Techno/Electronica, Dance
Release Date: 1998
Review by DjBatman
3½ stars out of 4

“Babylon” – the perfect title for a project contemplating a world respected Hebrew vocalist collaborating with electronic act The Black Dog and a bunch of mad remixers (among them Jimmy Cauty of KLF fame in his most recent alias “The Scourge Of The Earth”). Continua…

UMG Recordings, Inc. v. Mp3.com, Inc.

UMG RECORDINGS, INC. v. MP3.COM, INC.

United States District Court

for the Southern District of New York

2000 U.S. Dist. LEXIS 5761

May 4, 2000

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiffs moved for partial summary judgment in an action against defendant for copyright infringement.

OVERVIEW: Plaintiff record companies sued defendant internet company for copyright infringement, alleging defendant copied their recordings onto its computer servers and replayed the recordings for its subscribers. Plaintiffs moved for partial summary judgment. Defendant argued the copying was protected by the affirmative defense of “fair use.” The court found the fair use defense was indefensible because simply repackaging the recordings to facilitate their transmission through another medium was an insufficient basis for any legitimate claim of transformation; the recordings being copied were close to the core of intended copyright protection and far removed from the more factual or descriptive work more amenable to “fair use;” defendant copied and replayed the entirety of the copyrighted works at issue; and defendant’s activities on their face invaded plaintiffs’ statutory right to license their copyrighted sound recordings to others for reproduction. Defendant’s other affirmative defenses, including copyright misuse, abandonment, unclean hands, and estoppel, were rejected.

OUTCOME: Partial summary judgment holding defendant infringed plaintiffs’ copyrights granted because defendant’s “fair use” defense was indefensible and was denied as a matter of law and defendant’s other affirmative defenses, including copyright misuse, abandonment, unclean hands, and estoppel, were without merit.

COUNSEL:

[*1] For UMG RECORDINGS, INC., SONY MUSIC ENTERTAINMENT INC., ARISTA RECORDS INC., BMG MUSIC, CAPITOL RECORDS, INC., INTERSCOPE RECORDS, plaintiffs: Robert A. Goodman, Arnold & Porter, New York, NY.

For UMG RECORDINGS, INC., SONY MUSIC ENTERTAINMENT INC., BMG MUSIC, CAPITOL RECORDS, INC., INTERSCOPE RECORDS, plaintiffs: Hadrian R. Katz, Jule L. Sigall, Helene T. Krasnoff, Washington, DC.

For UMG RECORDINGS, INC., SONY MUSIC ENTERTAINMENT INC., BMG MUSIC, CAPITOL RECORDS, INC., INTERSCOPE RECORDS, plaintiffs: Steven B. Fabrizio, Recording Industry Association of America, Inc., Washington, DC.

For WARNER BROS. RECORDS INC., ATLANTIC RECORDING CORPORATION, ELEKTRA ENTERTAINMENT GROUP, INC., SIRE RECORDS GROUP, INC., plaintiffs: Katherine B. Forrest, Cravath, Swaine & Moore, New York, NY.

For ARISTA RECORDS INC., plaintiffs: Hadrian R. Katz, Jule L. Sigall, Washington, DC.

For MP3.COM, INC., defendant: Michael B. Carlinsky, Jeffrey A. Conciatori, Orrick, Herrington & Sutcliffe, L.L.P., New York, NY.

OPINIONBY:

JED S. RAKOFF, United States District Judge.

OPINIONThe complex marvels of cyberspatial communication may create difficult legal issues; but [*2] not in this case. Defendant’s infringement of plaintiff’s copyrights is clear. Accordingly, on April 28, 2000, the Court granted defendant’s motion for partial summary judgment holding defendant liable for copyright infringement. This opinion will state the reasons why.

The pertinent facts, either undisputed or, where disputed, taken most favorably to defendant, are as follows:

The technology known as “MP3” permits rapid and efficient conversion of compact disc recordings (“CDs”) to computer files easily accessed over the Internet. See generally Recording Industry Ass’n of America v. Diamond Multimedia Systems Inc., 180 F.3d 1072, 1073-74 (9th Cir. 1999). Utilizing this technology, defendant MP3.com, on or around January 12, 2000, launched its “My.MP3.com” service, which it advertised as permitting subscribers to store, customize, and listen to the recordings contained on their CDs from any place where they have an internet connection. To make good on this offer, defendant purchased tens of thousands of popular CDs in which plaintiffs held the copyrights, and, without authorization, copied their recordings onto its computer servers so as to be able to replay the [*3] recordings for its subscribers.

Specifically, in order to first access such a recording, a subscriber to MP3.com must either “prove” that he already owns the CD version of the recording by inserting his copy of the commercial CD into his computer CD-Rom drive for a few seconds (the “Beam-it Service”) or must purchase the CD from one of defendant’s cooperating online retailers (the “Instant Listening Service”). Thereafter, however, the subscriber can access via the Internet from a computer anywhere in the world the copy of plaintiffs’ recording made by defendant. Thus, although defendant seeks to portray its service as the “functional equivalent” of storing its subscribers’ CDs, in actuality defendant is re-playing for the subscribers converted versions of the recordings it copied, without authorization, from plaintiffs’ copyrighted CDs. On its face, this makes out a presumptive case of infringement under the Copyright Act of 1976 (“Copyright Act”), 17 U.S.C. § 101 et seq.. See, e.g., Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc. 150 F.3d 132, 137 (2d Cir. 1998); Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985). [*4] n1

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n1 Defendant’s only challenge to plaintiffs’ prima face case of infringement is the suggestion, buried in a footnote in its opposition papers, that its music computer files are not in fact “reproductions” of plaintiffs’ copyrighted works within the meaning of the Copyright Act. See, e.g., 17 U.S.C. § 114(b). Specifically, defendant claims that the simulated sounds on MP3-based music files are not physically identical to the sounds on the original CD recordings. See Def.’s Consolidated Opp. to Pls.’ Motions for Partial Summ. J. at 13-14 n.9. Defendant concedes, however, that the human ear cannot detect a difference between the two. Id. Moreover, defendant admits that a goal of its copying is to create a music file that is sonically as identical to the original CD as possible. See Goodman Reply Aff., Robertson Dep., Ex. A, at 85. In such circumstances, some slight, humanly undetectable difference between the original and the copy does not qualify for exclusion from the coverage of the Act.

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – [*5]

Defendant argues, however, that such copying is protected by the affirmative defense of “fair use.” See 17 U.S.C. § 107. In analyzing such a defense, the Copyright Act specifies four factors that must be considered: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Id. Other relevant factors may also be considered, since fair use is an “equitable rule of reason” to be applied in light of the overall purposes of the Copyright Act. Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 448, 454, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984); see Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985).

Regarding the first factor — “the purpose and character of the use” — defendant does not dispute that its purpose is commercial, [*6] for while subscribers to My.MP3.com are not currently charged a fee, defendant seeks to attract a sufficiently large subscription base to draw advertising and otherwise make a profit. Consideration of the first factor, however, also involves inquiring into whether the new use essentially repeats the old or whether, instead, it “transforms” it by infusing it with new meaning, new understanding, or the like. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 127 L. Ed. 2d 500, 114 S. Ct. 1164 (1994); Castle Rock, 150 F.3d at 142; se also Pierre N. Leval, “Toward a Fair Use Standard,” 103 Harv. L. Rev. 1105, 1111 (1990). Here, although defendant recites that My.MP3.com provides a transformative “space shift” by which subscribers can enjoy the sound recordings contained on their CDs without lugging around the physical discs themselves, this is simply another way of saying that the unauthorized copies are being retransmitted in another medium — an insufficient basis for any legitimate claim of transformation. See, e.g., Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (rejecting [*7] the fair use defense by operator of a service that retransmitted copyrighted radio broadcasts over telephone lines); Los Angeles News Serv. v. Reuters Television Int’l Ltd., 149 F.3d 987 (9th Cir. 1998) (rejecting the fair use defense where television news agencies copied copyrighted news footage and retransmitted it to news organizations), cert. denied, 525 U.S. 1141, 143 L. Ed. 2d 41, 119 S. Ct. 1032 (1999); see also American Geophysical Union v. Texaco Inc., 60 F.3d 913, 923 (2d Cir.), cert. dismissed, 516 U.S. 1005 (1995); Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522, 1530-31 (S.D.N.Y. 1991); see generally Leval, supra, at 1111 (repetition of copyrighted material that “merely repackages or republishes the original” is unlikely to be deemed a fair use).

Here, defendant adds no new “new aesthetics, new insights and understandings” to the original music recordings it copies, see Castle Rock, 150 F.3d at 142 (internal quotation marks omitted), but simply repackages those recordings to facilitate their transmission through another medium. While such services [*8] may be innovative, they are not transformative. n2

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n2 Defendant’s reliance on the Ninth Circuit’s “reverse engineering” cases, see Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000); Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993), is misplaced, because, among other relevant distinctions, those cases involved the copying of software in order to develop a new product, see Sony Computer Entertainment, 203 F.3d at 606; Sega Enterprises, 977 F.2d at 1522, whereas here defendant copied CDs onto its servers not to create any new form of expression but rather to retransmit the same expression in a different medium.

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

Regarding the second factor — “the nature of the copyrighted work” — the creative recordings here being copied are “close[] to the core of intended copyright protection,” Campbell, 510 U.S. at 586, and, conversely, far removed from the more factual or descriptive [*9] work more amenable to “fair use,” see Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65, 72-73 (2d Cir. 1999); see also Castle Rock, 150 F.3d at 143-44.

Regarding the third factor — “the amount and substantiality of the portion [of the copyrighted work] use [by the copier] in relation to the copyrighted work as a whole” — it is undisputed that defendant copies, and replays, the entirety of the copyrighted works here in issue, thus again negating any claim of fair use. See Infinity Broadcast, 150 F.3d at 109 (“The more of a copyrighted work that is taken, the less likely the use is to be fair . . . .”); see generally Leval, supra, at 1122 (“The larger the volume . . . of what is taken, the greater the affront to the interests of the copyright owner, and the less likely that a taking will qualify as a fair use.”).

Regarding the fourth factor — “the effect of the use upon the potential market for or value of the copyrighted work” — defendant’s activities on their face invade plaintiffs’ statutory right to license their copyrighted sound recordings to others for reproduction. See 17 U.S.C. § 106. [*10] Defendant, however, argues that, so far as the derivative market here involved is concerned, plaintiffs have not shown that such licensing is “traditional, reasonable, or likely to be development.” American Geophysical, 60 F.3d at 930 & n.17. Moreover, defendant argues, its activities can only enhance plaintiffs’ sales, since subscribes cannot gain access to particular recordings made available by MP3.com unless they have already “purchased” (actually or purportedly), or agreed to purchase, their own CD copies of those recordings.

Such arguments — though dressed in the garb of an expert’s “opinion” (that, on inspection, consists almost entirely of speculative and conclusory statements) — are unpersuasive. Any allegedly positive impact of defendant’s activities on plaintiffs’ prior market in no way frees defendant to usurp a further market that directly derives from reproduction of the plaintiffs’ copyrighted works. See Infinity Broadcast, 150 F.3d at 111. This would be so even if the copyrightholder had not yet entered the new market in issue, for a copyrightholder’s “exclusive” rights, derived from the Constitution and the Copyright Act, include [*11] the right, within broad limits, to curb the development of such a derivative market by refusing to license a copyrighted work or by doing so only on terms the copyright owner finds acceptable. See Castle Rock, 150 F.3d at 145-46; Salinger v. Random House, Inc., 811 F.2d 90, 99 (2d Cir.), cert. denied, 484 U.S. 890, 98 L. Ed. 2d 177, 108 S. Ct. 213 (1987). Here, moreover, plaintiffs have adduced substantial evidence that they have in fact taken steps to enter that market by entering into various licensing agreements. See, e.g., Forrest R. Aff., Ex. F., Vidich Dep. at 61-63; id., Ex. N; Goodman R. Aff., Ex. B., Silver Dep. at 64-65; id., Ex. D, Eisenberg Dep. at 130-32; id., Ex. E., Evans Dep. 145-48.

Finally, regarding defendant’s purported reliance on other factors, see Campbell, 510 U.S. at 577, this essentially reduces to the claim that My.MP3.com provides a useful service to consumers that, in its absence, will be served by “pirates.” Copyright, however, is not designed to afford consumer protection or convenience but, rather, to protect the copyrightholders’ property interests. Moreover, as a practical [*12] matter, plaintiffs have indicated no objection in principle to licensing their recordings to companies like MP3.com; they simply want to make sure they get the remuneration the law reserves for them as holders of copyrights on creative works. Stripped to its essence, defendant’s “consumer protection” argument amounts to nothing more than a bald claim that defendant should be able to misappropriate plaintiffs’ property simply because there is a consumer demand for it. This hardly appeals to the conscience of equity.

In sum, on any view, defendant’s “fair use” defense is indefensible and must be denied as a matter of law. Defendant’s other affirmative defenses, such as copyright misuse, abandonment, unclean hands, and estoppel, are essentially frivolous and may be disposed of briefly. While defendant contends, under the rubric of copyright misuse, that plaintiffs are misusing their “dominant market position to selectively prosecute only certain online music technology companies,” Def.’s Consolidated Opp. to Pls.’ Motions for Summ. J. at 21, the admissible evidence of records shows only that plaintiffs have reasonably exercised their right to determine which infringers to pursue, and [*13] in which order to pursue them, cf. Broadcast Music, Inc. v. Peppermint Club, Inc., 1985 U.S. Dist. LEXIS 12761, 1985 WL 6141, at *4 (N.D. Ohio Dec. 16, 1985). The abandonment defense must also fall since defendant has failed to adduce any competent evidence of an overt act indicating that plaintiffs, who filed suit against MP3.com shortly after MP3.com launched its infringing MY.MP3.com service, intentionally abandoned their copyrights. See Richard Feiner & Co., Inc. v. H.R. Indus., Inc., 10 F. Supp. 2d 310, 313 (S.D.N.Y. 1998). Similarly, defendant’s estoppel defense must be rejected because defendant has failed to provide any competent evidence that it relied on any action by plaintiffs with respect to defendant’s My.MP3.com service. Finally, the Court must reject defendant’s unclean hands defense given defendant’s failure to come forth with any admissible evidence showing bad faith or misconduct on the part of plaintiffs. See generally Dunlop-McCullen v. Local 1-S, AFL-CIO-CLC, 149 F.3d 85, 90 (2d Cir. 1998); A.H. Emery Co. v. Marcan Prods. Corp., 389 F.2d 11, 18 n.4 (2d Cir.), cert. denied, 393 U.S. 835, 21 L. Ed. 2d 106, 89 S. Ct. 109 (1968). [*14] n3

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n3 The Court also finds no reason to alter or postpone its determination simply because of the recent filing of the complaint in Lester Chambers et al. v. Time Warner, Inc., et al. 00 Civ. 2839 (S.D.N.Y. filed Apr. 12, 2000) (JSR), the allegations of which, according to the defendant here, call into question the exclusivity of plaintiffs’ copyrights. The allegations of a complaint, having no evidentiary value, cannot defeat a motion for summary judgment.

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

The Court has also considered defendant’s other points and arguments and finds them sufficiently without merit as not to warrant any further comment.

Accordingly, the Court, for the foregoing reasons, has determined that plaintiffs are entitled to partial summary judgment holding defendant to have infringed plaintiffs’ copyrights.