Critics of the RIAA strategy say, well, they say many things, but the thing that is relevant to this particular post is that the statute under which the RIAA lawsuits are brought is unconstitutional. The short explanation is that the statute may create a criminal offense with a private enforcement mechanism. In other words, the “damages” that the RIAA seeks in these lawsuits are really a “fine” for copyright infringement, but instead of the usual criminal enforcement procedures - that include all the constitutional protections for the defendant - this statute allows enforcement in an ordinary civil lawsuit. The main problem with that is that the person being sued, who is in the position of “defendant,” is not innocent until probven guilty. In fact, nearly all of the lawsuits have settled for the simple reason that individuals will spend far less by settling for a few thousand dollars than they would spend to hire a lawyer to try and defend against the corporate law department of the RIAA, who would think nothing of spending far more on attorney fees than the amount of money they stand to win. They are in it for the deterrence effect.

Anyway, one of these lawsuits is about to be defended by an attorney with the argument that the underlying statute is unconstitutional. This is not an argument that the file sharing is protected or otherwise “okay.” It is merely an attack on the strategy being used by the RIAA. But to the extent that critics are right and the strategy is heay-handed, over-reaching, and unconstitutional, this is an important case.

You can read more from the AP here.

Okay, that wasn’t quite the plan, but close. Google began work several years ago on a project to digitize significant library collections. It raised concerns from many groups. Business Week had a good article on the issues when the project was first becoming known.

The battle has rage on since that time, with legal intervention, of course. Last week, Google announced an agreement had been reached to settle the matter, and it seems like a good outcome. Google’s website explains in some detail.

While I might not use quite as much hyperbole as Google does, this agreement does seem to reach a new level of cool in the internet world.

I thought about this after I came across a site that discusses nothing but limited edition foods. I didn’t realize this was the big business that it is. I’m certainly familiar with the Franklin Mint and all their limited edition products. And nobody who has kids these days is unaware of the long parade of Disney limited edition releases, but food was a new concept. There’s no collectible factor here (except the packaging, and everybody knows from watching Antiques Roadshow that the most value comes from having the product along with intact packaging). With food, there is a pure, fleeting experience and then memories. I guess you could take a picture of yourself eating the food, but the actual taste cannot be preserved (that I know of, anyway).

In the information age that we live in, it’s kind of refreshing to find an experience where preservation is not only not the goal, but is actually impossible. There is no digital storage of tastes (again, I add the disclaimer, “that I know of”).

And then I got to thinking, can there be a limited edition of copyrightable material? There can certainly be limited editions of the package that the information is put in - witness the Disney Classics Collection mentioned above - but what about the information itself? Kind of a philosophical question, I admit. Viewing a photograph can be a one-time experience, but what if the photo caused a shift in your perceptions? Written stories and articles can likewise change your view of the world, and are often disseminated further through the oral tradition.

I guess I’d like to think that information is not limited, even if it’s just to an edition.

For some time now, Viacom and YouTube have been in a big lawsuit that Viacom filed against YouTube (and against Google, which owns YouTube). The simple description of the reason for the lawsuit is that Viacom thinks YouTube should be trying harder to prevent copyright infringement on it’s site, and YouTube is saying it doesn’t have to do more.

Before I give you the interesting recent development in this case, I need to give you a capsule review of what the overall fight surrounding websites that include material posted by users is about. First, it’s not just about YouTube, it’s about any site that includes content from users, including forums and bulletin boards. Here’s the whole issue in a nutshell: Copyrighted material should not be published without the consent of the owner. In the paper publishing world, it has generally been the responsibility of the publisher to make sure that ther eis permission for everything that is published. In the internet world, websites have typically claimed they merely provide a space but are not traditional publishers, and therefore it is the responsibility of the person posting the material to make sure that there is permission. Which means that discovering and fighting infringement becomes an after the fact job for the owner of the copyrighted material instead of a before the fact preventive job of the publisher. And that is the crux of the fight - does the publisher/website have to do the work, or does the copyright owner have to do the work?

In the Viacom/Google case, much of the evidence has to do with which party is in the better position to do the work of identifying potential copyright infringement. Google has said, basically, that it is not economically or technologically feasible for them to review everything posted. Viacom has said the same thing about its own position.

Now, with that background, here’s the newest development in the case. Viacom has been using a small company to collect information about material posted on YouTube in order to build its legal case. Google is now seeking access to the documents provided to Viacom in order to prove that Viacom can, in fact, collect the information it needs to pursue copyright infringements on YouTube. In other words, Google believes that by collecintg information on just how much of its stuff is impermissibly posted on YouTube, Viacom is proving Google’s case that Viacom is perfectly capable of doing the work itself.

Sounds a lot like two siblings squabbling over who has the most time to do their chores. You read more about this in The Wall Street Journal’s Market Watch.

Copyright issues are complicated and the digital reproduction capabilities that we now all possess have made the need for better education on copyright law urgent and unprecedented in the hostory of copyright. This is a step in the right direction.

Because consumers now have a vast array of choices when it comes to their entertainment, they will have the luxury of looking for less expensive options. While everyone likes to point to the rise in movie ticket sales during the depression as hard evidence that people will spend money to “escape” from their troubles, you have to remember that movies were only in movie theaters back then. If Depression-era consumers could have chosen between a 50 cent movie ticket and a nickel video rental, which do you think they would have chosen?

Small entertainment producers have an opportunity to soak up some business from economy minded consumers because their costs are typically lower, the profit margin higher and therefore more room to promote attractive discounts to savings hungry buyers, and adjustments to marketing and sales can be made much more quickly than larger companies can manage.

Indie musicians, self-published authors, small businesses - this is your time to find the silver lining and shine. You’re in this business because you’re a creative person, so let’s get creative!

Copyrights are easier to control when the means to copy material is relatively difficult. The Xerox machine was a huge event in the history of copy making. But it wasn’t until digital reproduction arrived that the problem really started. Digitally reproduced in many cases are indistinguishable from the original, and this is the very first time in history that reproductions have been as good as the original. But even now, it is primarily audio material that is substantially threatened, because, despite the concerns over written material made available on the internet, what publishers and authors are just now discovering is that people will still buy books, even if they can read the text on their computer. Bloggers put out books that sell, even though all the material is available on their blog. Publishers have made entire books available for free download, and still sold as many traditional books as exepcted.

Even in the case of music, many people still buy CD’s for the packaging. But that does not seem to be the case for younger listeners, which means that music is at risk of losing sales in the digital age.

Problem was, they had not obtained a license to publicly perform the popular songs they were teaching. Now before you worry about every music lesson going on in the back rooms of music stores and band halls of schools all over the world, this was not the normal music lesson scenario. Instead of a one on one lesson between a teacher and student, these were videos of a musician playing the songs, and the videos were placed on YouTube with the specific intent that they would be viewed by the public - and they were, viewed by hundreds of thousands of people, in fact.

Although the two guys teaching in the videos thought their use of the songs would be welcomed by the songwriters, that is not their call to make. The owners of the song get to decide whether they want the song used, and if they do, the owners of the song get to decide how much they think is a fair price. if the owners believe free is fair and they want to let the song be used for free, then they can decide that. But the other side - in this case the performer - does not have the right to move forward on a plan that THEY think is fair whether or not the other side agrees (and in this case, the other side hadn’t even been asked what they thought). It would be like a couple going to look at a house they were considering buying, and having the seller close the deal and obligate the couple to terms the seller determined were fair but that the couple were never told about until after the fact. it doesn’t matter how objectively “fair” or “beneficial” a use of a song is, the owner still gets to decide whether they want to agree.

In this case, the popular video lessons were saved when the two teacher guys and the owners of the song rights worked out a partnership on terms that all parties actively agreed to.

Here’s the full story.

According to Wired, McCain’s legal staff has written to Google (which owns YouTube) complaining that the copyrighted material used in the pulled videos fell under the fair use doctrine, and should not have been pulled without a review by Google. Wired notes that Congress generally has been unwilling to listen to very much on the subject of fair use.

It’s an interesting shift in the perception of YouTube. Wonder what McCain will do on this subject when he returns to politics - either in the Senate or the White House, he’d be in a position to champion greater deference to fair use principals.

If there had been lobbyists back then, we wouldn’t have had a cry for votes and a big riot, we would have had a coalition, probably called the Coalition of American Colonists with an office in Boston and a field office in London. The Coalition would have voiced an opinion on behalf of all the colonists, some of whom would have felt that the Coalition leaned too far Tory, and maybe even would have uncovered some supposed evidence that the rent for the office in Boston was being paid by a shell company for the King, and then we would have the formation of the True Dirt Farmers of America, and probably a lot of pamphleting around the major cities.

At any rate, that’s how it works today. We may be on our way to another Boston Tea Party over the music distribution and royalty conundrum, or we may be on our way to an explosion of “educational” (which is code for lobbying) groups.

The latest new group is the Featured Artists Coalition. Although based in the UK, it includes international recording artists and has legal issues from both the UK and the USA on its priority issues list. Any performer is invited to join, and membership is free. Hmmm. . . . wonder where the finding is coming from? If tehy plan to do very much lobbying they will need to spend time collecitng input from members, developing statements, and travelling to hearings and meetings of the lawmakers. There’s going to have to be some money somewhere, but I agree with their statement that performers have not been well represented - if at all - in copyright discussions. It’s a necessary addition to an increasingly complicated discussion.