1:05 AM
I didn't want to touch the reports that Apple Computer is interesting in buying Universal Music, but I can't avoid it. Here's the thing. I'll believe it when I see it. The press loves rumors about Apple. Some writers have said that this ties in with Apple's plans to start a music service. The problem is that no one knows what those plans are, or whether the music service even exists.
Don't get me wrong. Apple is a great company and produces great innovations. Apple also doesn't talk about anything before it's ready. When reading about "sources" describing Apple's next big thing, the first thing to think about is how many times the rumors have been wrong. The second thing to think about is Apple's ability to announce products which are genuine surprises.
The idea of Apple buying Universal naturally leads to all sorts of interesting speculation. The problem is that it's all useless speculation unless Apple does, in fact, buy Universal. So until Apple makes an announcement, I'm not bothering.
There is one thing to take away from this. Apple has around 5% of the personal computer market. Universal Music is the largest record company and has 25% of the music market. The mere fact that Apple is large enough to make purchasing Universal Music plausible indicates the relative size of the computer industry and the music industry. If the computer industry can be mobilized to oppose technological controls on copyrighted content, it will be a potent force in opposition to the music industry. That's something worth thinking about and worth pursuing.
4:13 PM
Madonna has released her new single on the Internet. This is a major change in her approach to music on the Internet.
Up to this point, Madonna has not released any music on the Internet in any form. She seems to have completely reversed that policy, releasing "American Life" as an MP3 file. The song is available for $1.49 from her website. She also promises to reward fans who sign up as affiliates and post links on their own websites to her site. Compared to the limited approach record labels have had, this is a bold strategy.
Historically, songs have been available online as MP3s through file trading services like Kazaa. The advantage of such services is that they are free. The disadvantages are that it can be hard to find particular songs, the recording quality varies, and the recording industry is trying to shut them down. The music industry alternative is services like Pressplay, which generally release songs only in copy protected formats and typically require a monthly fee and additional fees to download each song.
"American Life" is more expensive than downloads through Pressplay, but it doesn't require a monthly fee and is in the MP3 format, which users can copy freely. Madonna appears to be taking the chance that users would rather buy the song than find it for free, because there's nothing to stop people who purchase and download the MP3 from immediately making it available through file trading services.
It remains to be seen whether this will increase or decrease sales of the song. The MP3 is cheaper than a CD single, so it may get more buyers. On the other hand, it may just cannibalize sales of the CD single. Or it could drive sales of the single, if people who are ambivalent about the song hear the MP3 and choose to get the CD. It's safe to assume that it will be all over the file trading services, so that may damage the sales of song in any format, but again, increased exposure may lead to more sales.
Regardless of the sales outcome, it has already been declared a marketing success, based on the number of people who have signed up as affiliates. If nothing else, the affiliate program is expected to increase awareness of the song.
This is an important experiment in the development of online music. Up to this point, the major labels have argued that making files available online harms sales, but there hasn't ever been a major test of that thinking. If "American Life" does well, more songs will follow. If it does poorly, the recording industry will undoubtedly step up their attack on file trading. I have to hope that it's a good song and has significant commercial success.
7:26 PM
I recently read the first chapter of a book that was terrible, putting it bluntly. The writing had no rhythm, the word choices had clashing tones, and the attempt to add depth to the main character ended up flattening him instead. My response was to want to rewrite the book. Keep the same characters, setting, and plot, but rewrite the language from scratch, creating essentially what I thought the book should have been. The question that arises is that of copyright.
There are really two different questions here. The first is what copyright does say about recreating another work. The second is what copyright should say about it. There is no question in my mind that under current copyright law, publishing a rewrite is a copyright violation. I think Alec French would argue that merely writing it would be a copyright violation. My understanding is that copyright controls publication, not creation, but I can see an argument that that's an artificial distinction.
You can't copyright ideas; you can only copyright the expression of ideas. However, the plot itself of a book is protected by copyright. Writing a new book based on the plot of another book, as I would be doing, is creating a derivative work, and is therefore subject to copyright. Therefore, I couldn't publish my book without the permission of the original author.
This leads to the question of what copyright law should be. To my mind, copyright law should encourage creation by guaranteeing that creators get paid for their works. In this case, the book is terrible and is published by a small press. You are extremely unlikely to find the book in a bookstore, and if you did, reading a few pages would convince you to not buy the book. I'm comfortable saying that the earnings the author will receive are miniscule.
By this thinking, I would not harm the original author by publishing my version. After all, zero minus zero is zero. Regardless of the sales success (or lack of success) of my book, I will not be taking any sales away from the original author.
On the other hand, my book is clearly a derivative work. Since I would be relying on the original author's characters and plot, I could not write my book if that book had not been written. Surely, then, the original author deserves some credit. But how much is reasonable? Several possibilities present themselves. Under current law, I could not publish my book without the author's permission, and the author is free to set any terms on my publication.
Another possibility, already in use in the music industry, is mandatory licensing. I could be required to pay a flat fee, a fixed amount per copy, or a percentage of total sales. I would be free to publish any derivative work without the permission of the original author, as long as I paid the licensing fee. How much the fee should be is up for discussion. If my work sells more than the original, I could complain that the original author is earning money from something with limited value. On the other hand, if my version sells more because it is a cheap knockoff, the original author could complain that I was stealing the sales of the original.
Things get trickier, of course. Suppose I decide to change some plot elements. Should that reduce my licensing fee? If I read a book, and as a direct result, am inspired to write my own book, does the author of the first book deserve a reward? How similar does my book have to be before the first author can claim royalties?
The problem here is that it is impossible to draw clear lines and say this is okay but that is not. That means every case of possible infringement must be settled by lawsuit. In turn, that means that existing copyright holders always have an advantage, because creators of potentially infringing works face the threat of a lawsuit.
I see this threat of lawsuits as a bigger problem than any other copyright issues. The threat of lawsuits directly prevents the creation of new works, and unlike other copyright issues, such as duration of copyright, there is no way to create a bright line separating infringing works from non-infringing works.
In the most extreme case, I should be able to freely publish my book. This isn't necessarily to say that there should be no copyright. No copyright would mean that I could publish a word for word copy of the original without paying the author. Actual copies could be protected while derivative works would not be. Again, the question is where to draw the line, and how to make it clear. Permitting derivative works but excluding direct copies is the same basic approach as under current copyright law, but the line would be shifted. How different would a work have to be to be a derivative work rather than a copy? Abridged versions probably should be considered copies, as should versions with typos deliberately added to the text (or removed, in the case of a poor quality original). What if I copied one chapter verbatim, and then wrote an entirely new book except for that chapter?
I'm not entirely certain that I should be allowed to publish my book. From my perspective, I should be, and the royalty, if any, should be low. After all, the original book is practically worthless. If someone else did a rewrite of a book of mine, I might not be so generous. It's difficult to say in the abstract. I'd almost certainly want credit, and the idea that I'd deserve compensation for the theoretical lost sales of my book due to the derivative work certainly is appealing. I don't think I'd go so far as to prevent publication, but I certainly understand the reflex.
I'd like to hear from anyone who has thoughts on what copyright protection should be. In particular, I'm interested in clear lines between infringing and non-infringing works, and I'm interested in mandatory licensing systems. If you were designing copyright law from scratch, how would it read?
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