Patenting the use of all episodic media on the Web might sound absurd, but the US Patent and Trademark Office has granted just such a patent, to a company called VoloMedia. It’s a significant issue, one that could threaten the freedom of all media distribution online. Wherever you are in the world, you can help.

Intellectual property law was created in order to protect genuine inventions and innovation from exploitation. But predatory patents, based on bogus claims and attempting to stake out broad rights, threaten to do just the opposite.

Here’s a new idea: fight back.

Lawyers are the heroes this time. The Electronic Frontier Foundation’s patent-busting project aims to take down unfair patents that threaten common-sense uses of technology. A number of these have applied to music and audio. The EFF has already won a big victory against what had been the worst offender – media giant Clear Channel actually successfully patented recording live shows. (No, really — recording a live gig, then burning them on the spot. The EFF was able to bust that patent.) The advocacy group also scored significant victories against patents on sending and receiving online streams and encoding media. (If someone thought they could patent your ears and charge you royalties for hearing, they probably would.)

Lawyers alone haven’t won these battles. The EFF’s clever twist is to crowd-source its case, by getting people like you to help the group document “prior art” – in plain English, to prove that something existed before the patent. (Without basic chronology, I could claim to have discovered electricity.)

In short, you can help save the freedom of online content.

VoloMedia’s Bogus Patent – And Why It’s Dangerous

VoloMedia has been granted a patent for “providing episodic media.” The patent is broad enough to endanger any independent podcast or episodic media producer. Over the summer, Volomedia’s own Murgesh Navar sidestepped concerns about patent abuse to brag on the company blog about just how broad that claim was – that even non-RSS-based episodic media belong to them:

With specific reference to our newly issued 7,568,213 patent, it was filed in November 2003, almost a year before the start of podcasting.  This helps underscore the point, that for nearly six years, VoloMedia has been focused on helping publishers monetize portable media…. and has continued these efforts with the addition of a wide array of smartphone-based applications.  The patent that issued yesterday helps to tie together and reinforce the value of the various technologies and services that VoloMedia has developed to help accomplish this objective.  VoloMedia’s intent is to continue to work collaboratively with key participants in the industry, leveraging its unique range of products to further grow and accelerate the market.  Today, podcasting is 100% RSS-based.  However, the patent is not RSS-dependent.  Rather, it covers all episodic media downloads.  It just so happens that, today, the majority of episodic media downloads are RSS-based podcasts, which is why we titled our announcement the way we did.

Aside from the “before the start of podcasting” lie – and I believe “lie” is the only accurate word – it’s the implied threat that should send a chill down the spine of anyone using the Internet. Make no mistake about it: VoloMedia wants anyone doing podcasting, via any mechanism, to work with them. From that same blog entry:

The impact of a strong growing IP portfolio is such that we would expect new entrants into the podcasting arena to have a collaborative relationship with VoloMedia, just as do many of the current players.

From the patent itself, as approved, the technology VoloMedia claims to own is described as:

A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

Plain English translation: if what you’re doing with media has episodes, you owe VoloMedia.

If this patent were allowed to stand, and if VoloMedia were able to successfully enforce it, it would have a chilling effect on all Internet distribution. Regardless of the likelihood of their legal success, that underlies the fundamental problem with patent law – it has come completely unglued from reality. That alone ought to motivate people to fully document these issues and try to effect change.

Wondering why you haven’t heard of VoloMedia if they supposedly invented all episodic content online? Right now, they advertise “solutions” for advertising and analytics, an iTunes plug-in, and branded mobile apps for platforms like the iPhone. That’s it. RSS and previous formats date back to the 1990s, with the intention of covering episodic media across formats, just as the VoloMedia patent claims. These were published standards years before VoloMedia’s claim. That’s why demonstrating the details of this history become so important: they could strike down VoloMedia’s bogus patent.

Help Write Episodic Content’s History

VoloMedia’s patent twists the law, and common sense. But the same laws also provide for disproving a patent. If you can prove that an invention existed prior to the date for which a patent is claimed, you can undo the damage.

For that reason, the EFF is asking for your help. Knowing the readers of this site, I imagine there are people out there who know those details, or know people who do.

You’re all old enough to remember the Age Before Fall of 2003, right?

Here’s the call to action:

In order to bust this patent, we are looking for additional "prior art" — or evidence that the podcasting methods described in the patent were already in use before November 19, 2003. In particular, we’re looking for written descriptions of methods that allow a user to download pre-programmed episodic media like audio files or video files from a remote publisher, with the download occurring after the user subscribes to the episodes, and with the user continuing to automatically receive new episodes. You can read the entire prior art request here, and if you have something that could help, please send it to podcasting_priorart@eff.org or fill out the form on our Volomedia page.

For more information:

EFF Tackles Bogus Podcasting Patent – And We Need Your Help

Patent Busting Project: VoloMedia

Prior art serves a second purpose. Part of the reason predatory firms can abuse patent law is because technology’s history is so poorly written. I would like to see these kinds of bogus patents struck down, but I’d also like the real history behind today’s technologies to be told. So even beyond this legal battle, I hope that we begin to make the story of technologies like what is now called “podcasting” accurate, complete, and fair. Future generations of technologists will thank us.

Certainly, the VoloMedia patent, if enforced, would do tremendous harm to media today. The entire strength of the Web is that it doesn’t have to have homogenized distribution channels, that anyone can publish without centralized outlets or “collaborative relationships” with any big partner.

If you’ve never cared about intellectual property policy before, this might change your mind. No one should be allowed to un-invent the Internet.

Critics frequently attach the phrase “lock-in” to Apple’s iTunes Store – iTunes – iPod/iPhone combination. But, in the post-DRM age, what does that mean, exactly?

First, you have to recall that while for many of us the manual drag-and-drop music management is appealing, it isn’t so for many average consumers. They want sync. That means that music will be stored in iTunes and synced to Apple devices and nothing else. Apple is serious about locking you to their store and their devices, enough so that they frequently update their software with special keys that prevent the use of devices. iTunes is “free,” but Apple determines which mobile devices you can use and which you can’t. And Apple has gone after anyone who dares give you the ability to use your own music software or own devices, including efforts (ironically) to make their iPhone and iPod work with Linux and open source players.

These efforts don’t protect the music or prevent privacy – they protect users of Apple’s software and mobile devices from using anything but Apple’s tools. Yet Apple has used the Digital Millenium Copyright Act to take legal action over anyone who dares to even talk about how to use legally-purchased music and hardware:

OdioWorks v Apple

Perhaps suspecting their case was too thin to defend, Apple eventually backed off that particular claim — after, says the Electronic Frontier Foundation, “7 months of censorship and a lawsuit.”

Apple Withdraws Threats Against Wiki Site

But the software and hardware locks are unchanged. And Apple has won, in my view, an even more important battle: they have a monopoly over mindshare.

Here’s an example from a recent review by Gizmodo of the Android 2.0 mobile operating system from Google, as implemented on the Verizon-distributed Motorola Droid. They have some fair points about Android’s maturity and strong and weak points. But note what they say about music sync:

The only way to get your music and videos on the phone is to manually drag and drop the files. There is no syncing, no easy way to get your music library onto your phone. How are normal people supposed to figure this out? Verizon reps actually joked about how putting music on the Droid is sure to make for a lovely Saturday afternoon. What. The. Shit.

In fact, this is technically accurate, to my knowledge, only if you’re using iTunes. That incompatibility is engineered specifically by Apple. It’s a “feature”: other vendors could make other devices sync with iTunes, but Apple engineers regular updates to prevent them from doing so. In fact, while Apple was conceding defeat in its efforts to censor the Web over its iTunes lock, it was simultaneously busy blocking the Palm Pre from working with iTunes. This should be especially sad to long-time Mac watchers, who saw a Mac community railing against Microsoft’s effective office software and operating system monopolies in the 90s. Those Mac historians should also recall the early development of iTunes and shareware predecessor SoundJam, both of which worked with a variety of hardware. Now, some members of the same Mac community cheer market share numbers and anti-competitive practices by Apple.

But, engineering aside, it’s really the mindshare battle that’s most impressive. Gizmodo, in saying the Android “doesn’t sync,” really means that it “doesn’t sync with iTunes.” And given iTunes’ massive market share, Gizmodo is not alone – I’ve seen similar complaints from other press outlets and, anecdotally, many, many users.

In fact, Android sync is supported by a variety of applications. In my tests, it works with the open-source players Songbird (Mac, Windows, Linux), Banshee (Mac, Linux), Rhythmbox (Linux), Winamp (Windows), Media Monkey (Windows), and yes, even Microsoft’s own Windows Media Player. Microsoft may restrict the use of its Zune media player, but ironically its music playback software is far more open than Apple’s.

By “sync,” incidentally, I mean automatically – it’s no harder to use these applications with Google Android than Apple’s iTunes and iPhone/iPod. I personally find most of them more flexible and intuitive than iTunes. And I can show someone in a couple of minutes how to manage their device via the file system, too – even “normal people.” (I definitely don’t count as “normal,” so no argument there. But presumably “normal people” can learn to use the Mac Finder, right? Apple certainly argues they can – then locks users out of that tool when they connect an Apple mobile player.)

This is not a pro-Android argument, despite the screenshot. Any music player or phone that supports normal disk mounting will work the same way.

Why should all of this matter to musicians? The reasons monopolies are a concern in the first place has to do with pricing, and media monopolies add to that control of culture and speech. Even if your music isn’t distributed through iTunes, pricing and consumption patterns, and even the kinds of music people listen to and where they discover it are now being deeply impacted by Apple. Apple, in turn, by convincing users that there are no other options and engineering interoperability out of their products protect that control, just as digital music is growing by leaps and bounds. (For statistical evidence of the resulting trends, see today’s other story, linked below.)

I spoke to the Electronic Frontier Foundation’s Senior Staff Attorney Fred von Lohmann in April about the paper-thin (literally) arguments from Apple, when Apple was trying to prevent websites from talking about the database lock between iTunes and mobile devices:

All Apple has told us about this is in the letter they sent to us in December, as posted on the website as an exhibit to our complaint. Apple simply cites the fact that the iTunesDB page authors said that the obfuscation mechanisms used to create the iTunesDB has “may reside” in the FairPlay DRM code.

…The important thing here is that the iTunesDB pages were simply discussions about what might need to be done to reverse engineer the iTunesDB hashing. There was nothing to indicate that the efforts had succeeded. So even if understanding the iTunesDB hashing mechanism somehow magically unlocked all of FairPlay (which would seem to be far fetched), nothing on the pages suggests that the authors were anywhere near that goal.

Note that at the time, the EFF did not claim Apple lacked the right to make these kind of locks. The EFF told CDM at the time, “They have every right to do – to try to block it. Apple can certainly try to block it. What they can’t do is use inapplicable federal law to use legal threats to get them to stop.” And Apple backed off those claims.

The issue is whether you should invest in a product that limits your freedoms to use it. And the issue for musicians is whether this kind of a behavior from a company with an effective monopoly is limiting the potential power of digital music listeners in the future.

This is not to say that there aren’t reasons to choose to use an Apple device or its iTunes software. As reader “low resolution sunset” says in comments on the previous story:

This is pure conjecture: but I tend to think that slick interface design, trust, and loyalty for the Apple brand identity is what’s winning them the dominant market share of downloads.

Indeed. So, why not rely on that design, trust, and natural loyalty? Why force loyalty through engineering? And even given these qualities, isn’t there a danger when one company becomes so dominant that people don’t so much as consider alternatives? What’s to keep Apple competitive on good design if they have no competitors?

I certainly can’t answer those questions. And in the meantime, I’m looking to other alternatives, alternatives that have made me quite happy.

More on what this can actually mean:

Digital Sales Up, But is Apple Monopoly the Price? NPD, Mint Data, Editorial Analysis

In pointing out Behringer’s clone of Apple’s homepage, I may have left some things unclear. I was honestly surprised to find a number of people rushing to Behringer’s defense. I wasn’t trying to score cheap and easy points against the brand, but while venting frustration, I may have underestimated the response of people who own Behringer gear. If you do, and it’s working for you, as always – that’s a good thing.

The conversation got me excited, and I stepped into the comment fray. I shouldn’t have in this case, and unless asked to, I’ll stay out of this conversation. I enjoy being involved in those threads, but there are times when I should keep my writing to this space and let you have at it in the space below – the one labeled “comments.”

I think the reason Behringer inflames some people boils down to two things. Those people may have been burned by gear that proved not to be a bargain, or offended by a history of gear designs copied from recognizable models, or both. The former, of course, can happen with any vendor, but it does illustrate that saving money doesn’t always save time or money. Caveat Emptor is therefore true with any vendor. The latter is really the sticking point. Here’s a loose timeline of the cases in question:

Behringer and Mackie: In 1997, Mackie sued not only Behringer but distributor Samson and retailer Sam Ash. Mackie claimed that Behringer mixers were intended as exact copies of Mackie mixers – not only of external look and feel, but circuit design and individual components. In 1999, Behringer and Samson claimed a decision by the US Copyright Office “vindicated” the company. That supposed vindication is fairly empty, however. The US Copyright Office didn’t say that Behringer’s circuit designs were original. Instead, they said that the circuit board designs weren’t covered by the US Copyright Office. That has more to do with peculiarities of US intellectual property law than it does a vindication of Behringer.

Behringer and Roland/BOSS: In 2005, Roland sued Behringer for duplicating the look and feel of its guitar pedals. The blog Music Thing had a nice visual of just what this looked like. In this case, there was no claim about underlying circuit design, but the look and feel or “trade dress” is covered legally. Again, Behringer was not exactly vindicated. The two companies reached a settlement. The terms remained confidential, but Behringer did modify the look of its pedals.

Behringer and Line 6: What’s more disturbing to me is that, after reaching a legal settlement with Roland, Behringer simply moved on to a different vendor. In 2007, Behringer introduced a new line of pedals copying Line 6 instead of BOSS. Again, Music Thing’s Tom Whitwell did a visual comparison. Less extreme, but demonstrating Behringer continues to try to steal Line 6 market share by looking like Line 6, even the prize for the web design competition (the V-AMP) is intended to clone Line 6’s POD.

These are not the only cases of Behringer products that are designed to look like someone else’s products. As noted in comments, even the screenshot of the Behringer website is of monitors intended to look like those from KRK. Part of why I’m taking up the Behringer stories is that Music Thing isn’t around to do it any more, but here are some of Tom’s best hits:

In 2006, Behringer again copied Mackie, answering Mackie’s ONYX with mixers-plus-digital-I/O called the XENYX. (They copied the look and feel of older Mackie mixers rather than newer ones, but this was also clearly intended to look like Mackie’s product.)

Some amount of cloning, of course, should be forgiven – it’s expected practice for software emulations to mimic the look and feel of classic analog gear, so I can’t really fault Behringer for that. (That said, of course, I still think there’s far too much of that, and far too little original thinking about how to lay out controls and design interfaces.) The difference between cloning a classic product and a currently-shipping product is that making something look like something else that you can buy new suggests you want to create confusion. There are laws around that – “trade dress” – but more importantly to me is the question of whether it’s ethical.

Please, if, in comments, you want to fill out this timeline or offer more details of each case, on either side, I’m happy to hear it.

Apple and Behringer: In the case of the Apple site, while I wish websites in general would stop cloning Apple’s design – good as it may be – Behringer crossed a line by copying product pages, the color weight, gradient values, pixel weights, and radius of the Apple site. My small images in the story didn’t do that justice. This is not about the “cult of Apple.” Let me make myself plain: please, stop making sites look like the Apple site. Behringer’s case I think was worse than most, but I’d be happy if other sites flirted less with some of the particulars of Apple’s designs. Apple’s solution is not always the “best” design solution. There are others.

(Side note: the basics of Apple’s current website design really have been tremendously influential – so much so that it’s easy to overlook how much of this is derived from Apple. The earliest version of the current look dates from around 1997. But you can be influenced by a design and make it your own, rather than copying every detail or copying every detail poorly. To pretend otherwise would be to say design doesn’t matter, and I can’t do that.)

Let’s consider the larger issues:

Cheap can be great. One thing I won’t do is discriminate against musicians because what they’re using is cheap. “Ghetto fabulous” I believe is the proper term. Far from that, I hope on CDM we can find every opportunity to champion finding ways of doing cool stuff with cheap things. However…

Cheaper doesn’t always save you money. Because value is important, because you’re on a budget, you don’t want to throw your money away. Assume for a moment the allegations that Behringer cloned Mackie’s mixers down to individual circuits and components were true. That still doesn’t cover issues like manufacturing quality assurance or support. Larger than any one vendor – Behringer or otherwise – we urgently need to consider value. We can’t afford disposable gear. Our musical electronics are made out of toxic materials, and they impact the environment as they’re made, shipped, and disposed. And we need them to last for our music, too. I’m certainly guilty of having made this mistake, but it’s something that – as a community – we can all do better. Again, perhaps you have a good relationship with Behringer gear, which is great.

Copying is good; plagiarism, not so much. There’s a huge benefit to making copies and improving on them. A certain amount of copying is part of design. There is a difference, however, if the copy is intended to create confusion, to substitute for something else dishonestly. It’s the difference between Kia competing with the Honda Accord, as mentioned in comments, and someone making a car that looks exactly like an Accord called the Monda Schmaccord, and steals the design of its drivetrain. Likewise, in music, sampling can be a beautiful thing. Taking someone else’s work and trying to pass it off as your own is something different.

I believe it’s essential to draw these lines. It’s only going to get tougher from here. If you think these isolated Behringer cases were bad, brace yourselves: an army of music technology cloning companies is waiting in the wings.

My plea to Behringer: kick your copying habit, if you can. I could forgive you if you didn’t keep doing it over and over again. That suggests to me, and many others, that it’s malicious, that you hope consumers won’t notice and will buy your cheaper version because, cosmetically, it looks the same as something else. If it really is different, and if it really is better, then that only makes this more of a tragedy.

I’m going to leave the Behringer discussion at this point, having provided some of the historical background. But I certainly won’t let go of these other issues. And the uprising of Behringer support says to me that CDM and I do need to spend more time talking about affordable gear, affordable software, and — not necessarily because it’s “cheap” or “free” — free and open source hardware and software. I welcome your suggestions.

Look out: Behringer, already a notorious rip-off artist, is taking the “first step in [the] company’s reinvention of online presence.” I shudder to think what the coming steps will look like. But yes, the new site looks a wee bit familiar. It actually gets worse as you dig into the layout.

In fairness, for over a decade now, Apple’s site has perhaps the most ripped-off Website design on the Internet. But then, Behringer is special.

Back when the blog Music Thing was publishing, it was able to do an annual series on cloned Mackie and Roland/BOSS gear, some down to colors, typography, and control layouts. (Check out the MT archives for some of this hall of shame, or lack thereof.)

And Behringer doesn’t just copy the Apple layout like other sites. They actually send out a breathless press release that brags about their pixel-perfect, color-perfect clone.

Update: Apparently, you can thank readers of the Behringer Website for the choice. Mr. Tunes notes via Twitter that this design was chosen in a survey among other mock-ups, for which you could win a blatant rip-off of the Line 6 Pod. I could comment on that, but the things I might say would not make me a team player for “Team Behringer.”

After months of hard work from a 9-person development team, BEHRINGER launched a dramatically upgraded website today. Sporting an elegant, efficient aesthetic and an intuitive interface, the new site boasts a feature-rich series of upgrades…

Indeed, an inspection of image assets and CSS reveals that the development team really did re-create the design from scratch using their own images and code. (There’s 81 months of human development time the planet will never get back.)

Here’s the great irony: Behringer’s Terms of Use for their site.

This Site is provided for your personal and non-commercial use only. The purpose of this Site is to provide information on BEHRINGER and its products. All content included in this Site, including but not limited to any text, graphics, images, logos, button icons, data compilations, software, audio and video (collectively, "Materials"), is the property of BEHRINGER or its content suppliers, and you may not distribute, exchange, modify, reproduce, perform, sell or transmit the Materials for any business, commercial or public purposes. The Materials are protected by applicable laws and international copyright and trademark laws, and any unauthorized use of any Materials may violate copyright, trademark, and other applicable laws. You may not frame or utilize framing techniques to enclose any portion of this Site or any Materials without express written consent of BEHRINGER. You are granted a revocable and nonexclusive right to create a hyperlink to this Site so long as the link does not portray BEHRINGER, its affiliates, or their products/services in a false, misleading, derogatory, or otherwise offensive manner. You may not use any BEHRINGER trademark, logo or other Materials as part of the link without express written consent of BEHRINGER or as provided herein. If you breach any of these Terms, your authorization to use this Site automatically terminates and you must immediately destroy any downloaded or printed Materials herefrom.

Of course, the idea of Behringer’s proprietary intellectual property in this case is more than a bit absurd. Here’s Apple’s Terms of Use:

All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to Apple, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

Indeed.

By the way, wasn’t “Seeing is Believing” the tag on one of the images on Apple’s site at some point? (Why would I not be surprised if that was, you know – nine months ago?)

MusicRadar’s Joe Bosso reports that the long-simmering controversy over alleged 8-bit music intellectual property theft has come to a lawsuit:

Timbaland, Nelly Furtado sued for plagiarism [MusicRadar]

The suit is being brought by the Finland-based Kernel Records, which acquired the song Acidjazzed Evening. The case again puts musical sampling in the spotlight. Timbaland’s response in 2007, which you can read in the MusicRadar article, basically amounted to “I didn’t know where it came from, so it’s not theft.”

Oh, and then there’s this gem:
“It’s from a video game, idiot.”

That’ll be Timbaland demonstrating that he doesn’t understand what 8-bit music (this tune is, of course, not from a video game) nor how sampling law works (video games aren’t subject to some different set of ethical and legal rules). I mean, if Timbaland were going all radical on us and declaring all content should be free, that’d be another matter.

One has to wonder if a different kind of sampling culture is possible, a third option, in which artists knowingly release work as Creative Commons so they provide explicit permission for people to sample — and get credited. Of course, that’s a touchy subject with the likes of a Timbaland or Nelly Furtado, whose massive commercial success at least implies that they may be able to afford to pay for their samples.

So much has been said on this particular case, let alone the underlying issues, that I’ll leave it to you to discuss.

Whatever your opinion, though, the message is clear that 8-bit music is not simply free for the taking.

Previously: Crystal Castles gets caught up in a similar sort of “we didn’t know, so it doesn’t count” (though unlike Timbaland/Nelly Furtado, their track was not widely released, let alone a huge chart hit). Original story / Crystal Castles responds to allegations.

Sure, many issues around intellectual property are gray. But contributor Jo Ardalan has a disturbing story: what happens when a fundraising album gets pirated? Did illegal file sharing users know what they were doing — is there a need for a donation mechanism for these services — or is it really this bad? Apologies if this is old news – catching up during travel – but a question well worth considering. -Ed.

We all know piracy forces labels, artists and developers to incur a huge cost. Recently, however, illegal file-sharing cost a bundle for the fundraising efforts aimed to raise money for reconstructing parts of Italy after a recent and devastating April quake. Universal Music and Italian pop artists collaborated on a track entitled “Domani 21/4/09″ that sells digitally for 2 Euros and will later be sold in stores for 5 Euros. According to Variety, the track has been downloaded illegally 2 million times.

Caterina Caselli, who produced the track for free says that this project is (translated from Italian) “sort of ‘mission impossible’: in one project between eighty artists and musicians doing almost everything in one day. All have dealt with air travel at their own expense, technicians and porters have worked for free, as do the catering…Universal does not gain anything.”

Artists inovled are Jovanotti, Ligabue, Zucchero and Elisa and many others.

http://www.variety.com/article/VR1118003748.html?categoryid=19&cs=1
http://discomania2.myblog.it/archive/2009/05/09/domani-21-4-09-con-jovanotti-e-altri-60-artisti-serve-a-racc.html [Italian]

Policy, intellectual property, and changing business models remain hot threads to follow on this site as we watch the transformation of music distribution in the electronic age. This time, we welcome a new contributor to look inside the issues. Surprise: one radio host sides with the record industry, and the issues may not be as clear as you think. Jo explains. –Ed.

Imagine this:  A track from your new record is being played out on the radio — nonstop. All the major indie stations in Los Angeles, New York, Chicago, Miami and Atlanta have picked it up. At this point, I’m sure you’ve already ordered a fancy synth that you plan to pay for with your big check. But there is a problem: You did an acoustic version of Jimmy Edgar’s “My Beats.” So who gets paid? Jimmy Edgar. Guess who does not get paid? You!

The Performance Rights Act is a bill before the US Congress that would require terrestrial radio stations to pay royalties to the performer of a track. It is being supported by artists like Billy Corgan (who recently testified on behalf of the artists’ rights group, the musicFIRST coalition) Don Henley, Jay-Z, Billy Idol, as well as the Recording Industry Association of America (RIAA). Aside from the issue of “fairness,” the United States is one of the few countries that does not require payment to the performing artist when her track is played on the radio.

Celia Hirschman, host of “On the Beat” on Los Angeles’ KCRW public radio, a broadcast on changes and trends in the music business, says she agrees with the act. (Celia notes these are her personal views, and do not necessarily reflect the position of KCRW.)

“For decades, the laws have favored a free license to play artists’ music on radio,” says Hirschman. “This was ratified by Congress and basically accepted by all concerned…This free pass no longer makes any sense, especially for commercial radio. A reasonable compulsory license fee for all radio, with lower rates to non-commercial is an equitable solution for artists and labels.  Commercial radio stations earn their income by selling advertising because of their programming content.  It’s only fair that the content providers are compensated.”

“This free pass no longer makes any sense.”

Celia Hirschman, host of “On the Beat” on KCRW

Opposing the bill is the National Association of Broadcasters (NAB) who claim the legislation amounts to a “tax” and will force many radio stations to go bankrupt. Additionally, opponents of the bill point out that many artists were first discovered because of radio exposure, which translates into sales (ticket sales, album sales and merchandise) and promotion of their brand. If the station goes under, so does the performing artists’ potential income.

Dennis Wharton, EVP of NAB, claims that the RIAA “relies on cherry-picking international examples that paint a distorted picture of copyright law.” “The US protects sound recordings for 45 years longer than Canada and many countries in Europe, says Wharton. “If it’s “international parity” that RIAA is looking for, they ought to examine the entire landscape.”

In fact, the international landscape is not equal.  Many countries in Europe run stations owned or subsidized by government funding. The foundation of our copyright laws are different as well. In the United States, we use the term “copyright” whereas many European countries use a term equivalent to “author’s rights.” “Copyright” reflects an attitude that is concerned with the restriction of uses for economic reasons, whereas the term “author’s rights” reflects an attitude that is concerned with the extension of the author’s intellect and self.

I recently spoke with Brian Lee Corber, an IP attorney who has closely followed the Performance Rights Act. In his opinion the bill will not pass. “Collecting royalties for the songwriter is already inaccurate; it’s based off of surveys. Logistically, collecting royalties for the performer is even more complicated…what happens when the performer is an orchestra?” Corber feels this logistical nightmare may make it difficult for the legislature to justify passing this bill.

As a reaction to the Performance Rights Act, NAB is backing the Local Radio Freedom Act which calls for no tax or fee for the performance of a sound recording on the radio. As of March 24th, 9 more lawmakers signed onto the Local Radio Freedom Act, making the total number of co-sponsors 158.

For More Information:

Music First Coalition: www.musicfirstcoalition.org

National Association of Broadcasters: www.nab.org

KCRW: www.kcrw.com/etc/programs/ob

Sources:

Dougherty, F. Jay. Copyright Law Class at Loyola Law School, March 24, 2009.

“Mr. Corgan goes to Washington for a Bigger Piece of the Radio Pie”

http://blogs.suntimes.com/derogatis/2009/03/updated_mr_corgan_goes_to_wash.html

“NAB disputes RIAA Claim Ahead of Performance Rights Hearing”

http://radioink.com/Article.asp?id=1206143

“NAB, musicFIRST go Head-to-Head on Royalties”

http://www.fmqb.com/Article.asp?id=1235167

“Smashing Pumpkins Singer, Billy Corgan Testifies Before Congress”

http://www.opposingviews.com/articles/news-smashing-pumpkins-singer-billy-corgan-testifies-before-congress

Los Angeles-based CDM contributor Jo Ardalan is the Managing Director and Founder of Fixed Noise, a community-based company specializing in audio software development, artist management and business development in tech and entertainment.

She’s a veteran of Waxploitation and Native Instruments, an experienced sound designer and engineer, and consultant.

And she has a Reaktor tattoo.

Gibson, the guitar company, has been on an utterly absurd campaign against music games, bringing lawsuits against the developers of both Guitar Hero and Rock Band and even against retailers. In the latest illustration of how screwed up patent law is, and just how over-litigious it has made technology in this country, the patent was based on a Gibson patent for a “System and method for generating and controlling a simulated musical concert experience.” Never mind that Gibson’s patent looks nothing like Guitar Hero, or that if interpreted that loosely, Gibson could theoretically sue any music software maker.

See my previous break-down of the patent and the twisted logic of the case:
Gibson Guitar to Guitar Hero Maker: We Own All Digital Musical Reality

And following development:
Gibson Guitar Loses Mind, Sues Entire Planet

Our friend Nilay Patel gets the scoop at Engadget that Gibson has lost its Guitar Hero case in California US District Court. Engadget also has a PDF of the decision:

Gibson loses Guitar Hero patent lawsuit, gets booed off stage

You can read juicy bits in the final ruling (PDF):

• Gibson’s own counsel withdrew from the case after the guitar maker refused their request for information. That’s right: Gibson wasn’t cooperating with their own lawyers. (Gibson later was represented by different counsel.)
• Gibson’s own corporate general counsel didn’t respond to requests from the court.
• Gibson started trying to force third-party Activision system providers to provide short-notice depositions, much to the dismay of the court and ACtivision, given Gibson’s own lack of cooperation.
• Gibson tried to use a YouTube video of a Guitar Hero hacker on the record, which the court found irrelevant (and, I think, laughable.)
• Gibson variously tried, unsuccessfully, legal gymnastics by which it could redefine musical instruments to enforce its ultimately irrelevant patent.

It’s also fun reading lawyers try to define what a musical instrument is in the context of this case. Ultimately, the determining factor in this case appears to be whether the musical instrument itself produces some kind of audio signal, not control signal. Yep, that’s right: it sounds like Gibson lost out because the Guitar Hero controller was defined as a controller but not an instrument. The court decision, showing unusual technical savvy, notes that the “Musical Instrument Digital Interface” (which they incorrectly call “device interface”) has been used for non-musical purposes, despite its name. In a fit of extreme hubris, Gibson at one point seems to have claimed ownership of MIDI for guitar controllers, despite prior art.

I’m certainly not qualified to interpret the judgment, but we can say this: Gibson lost. And they lost on almost every single point, from apparently abusing the court process to losing just about every detail they tried to prove. The court even says the Gibson arguments “border on the frivolous.”

The extent of their loss says to me the other cases have about a snowball’s chance, which raises the question of what Gibson was trying to accomplish in the first place. You have to wonder if they hoped intimidating legal action could help them win contract terms. But it’s nice to see the law win out — and raises hopes that, in the long run, legal remedies could eventually fix frivolous abuses of the patent system.

Oh, yeah – and we can all be relieved that Gibson neither owns the idea of making things look like guitars, nor musical simulation. Phew.

We’ve got further compelling evidence Apple doesn’t really own multi-touch and multi-touch gestures — and that other devices and interfaces will press forward (which is a good thing for everyone). Lest you think I’m straying too far from creating digital music, by the way, I think this means lots of new music apps – as musicians have devoured multi-touch more than any other group (and certainly have used it for the coolest stuff).

I am concerned about how multi-touch innovation will wrangle with over-zealous intellectual property legal wrangling. But hopefully I made it clear that, even with my concerns about Apple, the report that Google had pulled multi-touch capabilities to please Apple was full of question marks.

Luke Hutchison is more of an expert in this field than any Silicon Valley rumor reporter. Luke pulled off the kernel module hack that turns the Android G1 into a multi-touch gesture-capable device (with, incidentally, some examples that have tantalizing possibilities for musical applications). He has detailed instructions on that, if you’re interested – and his familiarity with the code gives him a compelling argument that Google did not cave to Apple – and Apple may not even have relevant patents in this case.

It’s worth reading his whole story as it’s full of technical details as far as multi-touch’s future on G1, but here’s the executive summary as far as Apple blocking multi-touch on Android:

(1) The G1 was simply never intended to be a multi-touch device.
(2) Apple’s multitouch patent may not even cover the pinch gesture.
(3) Google *is* interested in multitouch capabilities, it’s just nowhere near the top of their priority list.
(4) Google will deal with legal issues if and when they come up, but that hardly stops them doing something they think should be done.
(5) Apparently the driver for a resistive MT-capable/iPhone-like touchscreen was checked into the git kernel tree after the 1.0 release, so we now have (at least?) two MT-capable drivers in the tree.

In other words, if you make an iClone, expect to hear from Apple legal. If you just want to use or develop multi-touch devices and interfaces, rest easy – because even if Apple decides to make trouble, they’re likely facing even more multi-touch gesture-controlled devices and law teams to back them up.

Definitely worth reading, at Luke’s blog:
The Android Multi-Touch Conspiracy… and more tinfoil hats

Zoom-Zoom-Zoom — Get Multi-Touch Zooming Support on your T-Mobile G1 TODAY (and by the way, you can hack the kernel on new G1s without the Android developer unit?)

Apple’s iPhone should be a herald of a new age in interface design. But now, with speculation that Apple and Palm could get into a patent battle, and murky concerns about patents in multi-touch interface design in general, it’s unclear how much intellectual property legal wrangling will have to happen first.

I’m going to resist turning this into a long rant – partly because I think the jury is out on so many issues. It’s never been entirely clear what Apple continues sacred in its intellectual property on the iPhone. It’s even less clear – with similar multi-touch designs spreading back decades and murky law around gestures in general – what their legal standing is. No one knows at this point whether there will actually be a lawsuit between Palm and Apple (or which direction). But one thing I can say with confidence: we need alternatives to Apple. Even if you love your iPhone, I think you’ll agree it’d be tragic if other vendors didn’t push the technology forward. And we need alternatives like Google Android that support real open development, release free and open source code, and provide an option to Apple’s deeply proprietary, restrictive development platform. Innovative music software in particular won’t be able to thrive if alternatives are closed or nonexistent.

Here’s a quick look at where we’ve been, and where things are:

This has been a storm cloud since the beginning. Me, in January 2007, immediately following the keynote: Macworld: Will Apple Keep its iPhone Closed? Multi-Touch Patents? (I wish I had been wrong. No one believed me at the time that these two areas would be big issues.)

The original tech predates the iPhone. Engadget in 2007 on Apple’s multi-touch roots – FingerWorks gave them a patent portfolio and some key technology.

Google may have dropped out of the race. VentureBeat has a source that claims Google voluntarily dropped multi-touch to keep Apple happy. Even if that’s not true, I think potential legal battles with Apple – and the incorrect notion among consumers that this is Apple’s invention – could have a chilling effect. Update: There may indeed be some chilliness in the air, but there’s strong evidence that Google didn’t “cave” to Apple somehow — they just didn’t get around to it. And a multi-touch G1 may not be far off. Just asked the guy who’s already hacked the G1.

Both Apple and Palm are loaded up with patents – and no one knows what will happen. Engadget analyzes the potential for a Palm/Apple legal standoff – but there are two major issues here. One, Palm has a healthy patent portfolio of their own, meaning they could counter-sue. Two, no one knows if anything will come of this – aside from some saber rattling, we’re not even sure there will be a suit.

Just to keep things in perspective, though: I think multi-touch in general is safe. It’s a technology coming to phones, mobile devices, computers, Windows 7, Synaptic trackpads, Linux … the list goes on. To me, the question is whether developers will be free to try ideas without lawyers breathing down their necks, and that’s very much an open question.

And I think the deeper questions about whether open development, as on Android, can be competitive, may prove to be more important in the long run. Apple aside, we need more common-sense, modernized patent law – even if the Android in this case voluntarily dropped a feature, you can see that the issues are linked. And we need to have open development if people are to have freedom to experiment with design. This is about more than Palm and Apple; it’s about how we interact with our tech.