Coming
in October
From AK Press
Today's
Stories
September 5, 2003
Brian Cloughley
Bush's
Stacked Deck: Why Doesn't the Commander-in-Chief Visit the Wounded?
Col. Dan Smith
Iraq
as Black Hole
Phyllis Bennis
A Return
to the UN?
Dr. Susan Block
Exxxtreme Ashcroft
Dave Lindorff
Courage and the Democrats
Abe Bonowitz
Reflections on the "Matyrdom" of Paul Hill
Robert Fisk
We Were
Warned About This Chaos
Website of the Day
New York Comic Book Museum
Recent
Stories
September 4, 2003
Stan Goff
The Bush
Folly: Between Iraq and a Hard Place
John Ross
Mexico's
Hopes for Democracy Hit Dead-End
Harvey Wasserman
Bush to New Yorkers: Drop Dead
Adam Federman
McCain's
Grim Vision: Waging a War That's Already Been Lost
Aluf Benn
Sharon Saved from Threat of Peace
W. John Green
Colombia's Dirty War
Joanne Mariner
Truth,
Justice and Reconciliation in Latin America
Website of the Day
Califoracle
September 3, 2003
Virginia Tilley
Hyperpower
in a Sinkhole
Davey D
A Hip
Hop Perspective on the Cali Recall
Emrah Göker
Conscripting Turkey: Imperial Mercenaries Wanted
John Stanton
The US is a Power, But Not Super
Brian Cloughley
The
Pentagon's Bungled PsyOps Plan
Dan Bacher
Another Big Salmon Kill
Elaine Cassel
Prosecutors Weep' Ninth Circuit Overturns 127 Death Sentences
Uri Avnery
First
of All This Wall Must Fall
Website of the Day
Art Attack!
September 2, 2003
Robert Fisk
Bush's
Occupational Fantasies Lead Iraq Toward Civil War
Kurt Nimmo
Rouind Up the Usual Suspects: the Iman Ali Mosque Bombing
Robert Jensen / Rahul Mahajan
Iraqi Liberation, Bush Style
Elaine Cassel
Innocent But Guilty: When Prosecutors are Dead Wrong
Jason Leopold
Ghosts
in the Machines: the Business of Counting Votes
Dave Lindorff
Dems in 2004: Perfect Storm or Same Old Doldrums?
Paul de Rooij
Predictable
Propaganda: Four Monts of US Occupation
Website of the Day
Laughing Squid
August 30 / Sept. 1,
2003
Alexander Cockburn
Handmaiden
in Babylon: Annan, Vieiera de Mello and the Decline and Fall
of the UN
Saul Landau
Schwarzenegger
and Cuban Migration
Standard Schaefer
Who
Benefited from the Tech Bubble: an Interview with Michael Hudson
Gary Leupp
Mel Gibson's Christ on Trial
William S. Lind
Send the Neocons to Baghdad
Augustin Velloso
Aznar: Spain's Super Lackey
Jorge Mariscal
The Smearing of Cruz Bustamante
John Ross
A NAFTA for Energy? The US Looks to Suck Up Mexico's Power
Mickey Z.
War is a Racket: The Wisdom of Gen. Smedley Butler
Elaine Cassel
Ashcroft's Traveling Patriot Show Isn't Winning Many Converts
Stan Cox
Pirates of the Caribbean: the WTO Comes to Cancun
Tom and Judy Turnipseed
Take Back Your Time Day
Adam Engel
The Red Badge of Knowledge: a Review of TDY
Adam Engel
An Eye on Intelligence: an Interview with Douglas Valentine
Susan Davis
Northfork,
an Accidental Review
Nicholas Rowe
Dance
and the Occupation
Mark Zepezauer
Operation
Candor
Poets' Basement
Albert, Guthrie and Hamod
Website of the Weekend
Downhill
Battle
August 29, 2003
Lenni Brenner
God
and the Democratic Wing of the Democratic Party
Brian Cloughley
When in Doubt, Lie Your Head Off
Alice Slater
Bush Nuclear Policy is a Recipe for National Insecurity
David Krieger
What Victory?
Marjorie Cohn
The Thin Blue Line: How the US Occupation of Iraq Imperils International
Law
Richard Glen Boire
Saying Yes to Drugs!
Bister, Estrin and Jacobs
Howard Dean, the Progressive Anti-War Candidate? Some Vermonters
Give Their Views
Website of the Day
DirtyBush
August 28, 2003
Gilad Atzmon
The
Most Common Mistakes of Israelis
David Vest
Moore's
Monument: Cement Shoes for the Constitution
David Lindorff
Shooting Ali in the Back: Why the Pacification is Doomed
Chris Floyd
Cheap Thrills: Bush Lies to Push His War
Wayne Madsen
Restoring the Good, Old Term "Bum"
Elaine Cassel
Not Clueless in Chicago
Stan Goff
Nukes in the Dark
Tariq Ali
Occupied
Iraq Will Never Know Peace
Arnold Schwarzenegger
Behold, My Package
Website of the Day
Palestinian
Artists
August 27, 2003
Bruce Jackson
Little
Deaths: Hiding the Body Count in Iraq
John Feffer
Nuances and North Korea: Six Countries in Search of a Solution
Dave Riley
an Interview with Tariq Ali on the Iraq War
Lacey Phillabaum
Bush's Holy War in the Forests
Steve Niva
Israel's
Assassination Policy: the Trigger for Suicide Bombings?
Website of the Day
The Dean Deception
August 26, 2003
Robert Fisk
Smearing the Dead
David Lindorff
The
Great Oil Gouge: Burning Up that Tax Rebate
Sarmad S. Ali
Baghdad is Deadlier Than Ever: the View of an Iraqi Coroner
Christopher Brauchli
Bush Administration Equates Medical Pot Smokers with Segregationists
Juliana Fredman
Collective Punishment on the West Bank: Dialysis, Checkpoints
and a Palestinian Madonna
Larry Siems
Ghosts of Regime Changes Past in Guatemala
Elaine Cassel
Onward, Ashcroft Soldiers!
Saul Landau
Bush:
a Modern Ahab or a Toy Action Figure?
Congratulations
to CounterPuncher Gilad Atzmon! BBC Names EXILE Top Jazz CD
August 25, 2003
Kurt Nimmo
Israeli Outlaws in America
David Bacon
In Iraq, Labor Protest is a Crime
Thomas P. Healy
The Govs Come to Indy: Corps Welcome; Citizens Locked Out
Norman Madarasz
In an Elephant's Whirl: the US/Canada Relationship After the
Iraq Invasion
Salvador Peralta
The Politics of Focus Groups
Jack McCarthy
Who Killed Jancita Eagle Deer?
Uri Avnery
A Drug
for the Addict
August 23/24, 2003
Forrest Hylton
Rumsfeld
Does Bogota
Robert Fisk
The Cemetery at Basra
Veteran Intelligence Professionals for
Sanity
Insults to Intelligence
Andrew C. Long
Exile on Bliss Street: The Terrorist Threat and the English Professor
Jeremy Bigwood
The Toxic War on Drugs: Monsanto Weedkiller Linked to Powerful
Fungus
Jeffrey St. Clair
Forest
or Against Us: the Bush Doctor Calls on Oregon
Cynthia McKinney
Bring the Troops Home, Now!
David Krieger
So Many Deaths, So Few Answers: Approaching the Second Anniversary
of 9/11
Julie Hilden
A Constitutional Right to be a Human Shield
Dave Lindorff
Marketplace
Medicine
Standard Schaefer
Unholy Trinity: Falwell's Anti-Abortion Attack on Health and
Free Speech
Catherine Dong
Kucinich and FirstEnergy
José Tirado
History Hurts: Why Let the Dems Repeat It?
Ron Jacobs
Springsteen's America
Gavin Keeney
The Infernal Machine
Adam Engel
A Fan's Notations
William Mandel
Five Great Indie Films
Walt Brasch
An American Frog Fable
Poets' Basement
Reiss, Kearney, Guthrie, Albert and Alam
Website of the Weekend
The Hutton Inquiry
August 22, 2003
Carole Harper
Post-Sandinista
Nicaragua
John Chuckman
George Will: the Marquis of Mendacity
Richard Thieme
Operation Paperclip Revisited
Chris Floyd
Dubya Indemnity: Bush Barons Beyond the Reach of Law?
Issam Nashashibi
Palestinians
and the Right of Return: a Rigged Survey
Mary Walworth
Other People's Kids
Ron Jacobs
The
Darkening Tunnel
Website of the Day
Current Energy
August 21, 2003
Robert Fisk
The US
Needs to Blame Anyone But Locals for UN Bombing
Virginia Tilley
The Quisling Policies of the UN in Iraq: Toward a Permanent War?
Rep. Henry Waxman
Bush Owes the Public Some Serious Answers on Iraq
Ben Terrall
War Crimes and Punishment in Indonesia: Rapes, Murders and Slaps
on the Wrists
Elaine Cassel
Brother John Ashcroft's Traveling Patriot Salvation Show
Christopher Brauchli
Getting Gouged by Banks
Marjorie Cohn
Sergio Vieira de Mello: Victim of Terrorism or US Policy in Iraq?
Vicente Navarro
Media
Double Standards: The Case of Mr. Aznar, Friend of Bush
Website of the Day
The Intelligence Squad
Hot Stories
Steve Niva
Israel's
Assassination Policy: the Trigger for Suicide Bombings?
Dardagan,
Slobodo and Williams
CounterPunch Exclusive:
20,000 Wounded Iraqi Civilians
Steve
J.B.
Prison Bitch
Sheldon
Rampton and John Stauber
True Lies: the Use of Propaganda
in the Iraq War
Wendell
Berry
Small Destructions Add Up
CounterPunch
Wire
WMD: Who Said What When
Cindy
Corrie
A Mother's Day Talk: the Daughter
I Can't Hear From
William Blum
Myth
and Denial in the War on Terrorism
Standard Schaefer
Experimental Casinos: DARPA and the War Economy
Uzma
Aslam Khan
The Unbearably Grim Aftermath of War:
What America Says Does Not Go
Paul de Rooij
Arrogant
Propaganda
Gore Vidal
The
Erosion of the American Dream
Francis Boyle
Impeach
Bush: A Draft Resolution
Click Here
for More Stories.
|
September
6, 2003
RIAA WATCH
Slumlords
of the Internet
By BILL GLAHN
On September 3, George Hotelling, a Michigan man
who describes himself as a computer "geek", launched
an auction on eBay to try to sell his recently purchased iTunes
download of Devin Vasquez' version of "Double Dutch Bus."
Not that selling the file (if that's what he was actually doing
more on that later) was his primary goal. As Hotelling puts it,
he wanted to find out, "Does the right of first sale still
exist?" It's a very interesting question.
The basic concept of the first sale doctrine
is that when you buy something that's new (first sale) it becomes
yours to sell for whatever price you please without interference
from the original manufacturer. Copyright prohibits you from
copying it (only the copyright holder can make the "first
sale"), but you can sell the actual item you purchased.
Specifically with regards to music, this is addressed in the
U.S. Code under Title 17, Chapter 1, Section 109. This law is
the primary reason why the RIAA has never been successful in
its attempts to get legislation requiring secondary payment on
used CDs (the  so-called "used CD tax").
The subject of digital programs is addressed in this law with
some rather ambiguous language that would take an experienced
attorney to decipher. As if even an experienced attorney could
do it that's why they have appeals courts. I'm not even an inexperienced
lawyer, so I won't attempt it.
One of the realities of the digital age
is that there has been new language placed in laws that puts
restrictions on the right of first sale with regards to computer
programs. Whether these laws are valid will be keeping attorneys
busy for years to come. The question really is, "what was
Hotelling actually selling?"
If he was like most people, he probably
believed he bought a song file from iTunes. After all, this is
how both the major music industry and iTunes have promoted their
product. In his eBay ad, Hotelling stressed that he was not selling
a copy of the song file. He was actually selling the song file
itself and would transfer his iTunes account (which contains
only this one song) over to the winning bidder if that is what
it took to make the file playable. In essence, he was reassigning
his license to play the song for a fee. Whether or not this is
allowed under his agreement with iTunes is debatable. There seems
to be some wiggle room in the iTunes agreement that could allow
this. Also, if this was indeed a purchase rather than a lease,
Hotelling would not be bound by any unlawful restrictions of
his contract with iTunes.
Hotelling's little experiment came to
an abrupt end when eBay cancelled his auction. eBay states that
Hotelling's auction violated their clause prohibiting the selling
of electronically transferred items. Of course, this was somewhat
disingenuous on eBay's part because Hotelling had made it clear
with an amendment to the auction that the transfer would not
take place through the Internet and electronically transferred
items are sold all the time on eBay without incident. eBay does
not take a proactive approach to policing violations. They only
end an auction if a complaint has been filed. And they are known
to cancel completely legitimate auctions at the whim of any member
of their intellectual property group (read: record labels), so
long as the member files an affidavit stating that the item in
question is a violation of their copyright (even if it's not).
iTunes has been mute on the subject so far, even though Hotelling's
auction received widespread interest on nearly every tech blog
in cyberspace. Hotelling's question might not be answered until
some attorney decides to sue iTunes or iTunes decides to sue
some customer.
I won't even get into "is a limited
license to the public a rental?" If it is, the whole download-for-dollars
scheme would be illegal. 'Cause the RIAA made sure of that when
the greedy bastards lobbied to outlaw music rentals with the
1985 Record Rental Act.
But there are plenty of other more pertinent
questions raised. Is the public being deceived into thinking
they are "buying" something when in reality they are
doing no such thing? When you "purchase" a tune from
iTunes, you are actually "licensing" the song for play
within a limited scope. This makes the dollar-a-pop charge far
less attractive than the purchase of a CD for an equal amount
(or less, as Universal has just announced price reductions on
a grand scale), which is a good reason for iTunes to avoid using
the term "license" in their publicity. The record labels
may have an even more sinister motive to call this a "sale".
Does Hotelling have the right to resell the license? After all,
this is precisely what iTunes is doing when they sold him the
license, as they had to purchase a license from the record labels
in the first place. And most of all, do the majors have the right
to issue blanket licenses to iTunes at all?
Nashville music attorney and artists'
advocate Fred Wilhelm offers the following: "Interestingly,
one of the excuses long given by the majors for foot dragging
on licensing catalog to legitimate online services was the necessity
of renegotiating with all the artists. In light of this excuse,
I always found it odd that they never really seemed interested
in actually negotiating, and haven't with hundreds of artists,
but have licensed their catalogs to iTunes anyway."
Wilhelm believes that some artists may
have a possible negotiating tool in the "non-coupling"
language that appears in many major label contracts. "'Non-coupling'
prohibits the label from issuing the artist's recordings in conjunction
with recordings from any other artist without the artist's prior
permission. Ostensibly put in the contract to prevent the 'split
single,' the language is usually broad enough to cover compilation
CDs and blanket licenses. The almost daily violation of this
clause has never been challenged to the best of my knowledge."
Wilhelm also addresses the issue of "is
it a sale or is it a license?" with some rather pointed
commentary. In the process he points out why the RIAA and the
major labels that fund them would rather view these downloads
in terms of "sales" rather than "licenses".
"iTunes is a prop for the majors,
and a bad deal for artists signed to those majors. There is substantial
legal grounds to treat downloads like licenses, rather than sales
(especially in the iTunes model where the user's right to make
copies is limited). Licenses are supposed to be split 50-50 with
the artists. I don't know one major that does this, but I also
fully expect the big names to start demanding it, and getting
it. I also fully expect this not to trickle down to anyone else
on the roster, and especially not to the catalog artists, who
if the contract royalty rate is going to be applied, are going
to get far less than 11 cents (the projected income from each
download that is supposed to go to the artist). The ironic thing
about the catalog artists, however, is that their contracts never
contemplated digital distribution, and it wasn't until the late
70s that "all media" clauses started showing up in
standard contracts. I have my doubts that 'all media' legally
includes 'NO media,' so that, if some of them are willing to
make a fight of it, for all of them, it could mean a substantial
change in the share they get."
So there you have it. What George Hotelling's
little experiment inadvertently points out, as if it hasn't been
pointed out often enough, is that the major music industry always
wants it both ways. When it comes to paying artists, iTunes are
selling songs. When it comes to fleecing the public, they're
licensing them. They will skirt the law when it's to their benefit.
They will use it when it's to their benefit. They will try to
sell you a substandard product for an inflated price. And their
customers always get left out in the cold. Something like the
way a slumlord operates.
Bill Glahn
writes the RIAA Watch column for CounterPunch. His Husgow Record
Guide appears at www.mondogordo.com
Feature articles appear in BigO
magazine Alt.Culture.Guide--The Journal of (Un)Popular
Culture (Rev. Keith A. Gordon with Bill Glahn, Anthem Pop/Kult
Publishing) may be
purchased online from Sound Products.
Weekend
Edition Features for August 30 / Sept. 1, 2003
Alexander Cockburn
Handmaiden
in Babylon: Annan, Vieiera de Mello and the Decline and Fall
of the UN
Saul Landau
Schwarzenegger
and Cuban Migration
Standard Schaefer
Who
Benefited from the Tech Bubble: an Interview with Michael Hudson
Gary Leupp
Mel Gibson's Christ on Trial
William S. Lind
Send the Neocons to Baghdad
Augustin Velloso
Aznar: Spain's Super Lackey
Jorge Mariscal
The Smearing of Cruz Bustamante
John Ross
A NAFTA for Energy? The US Looks to Suck Up Mexico's Power
Mickey Z.
War is a Racket: The Wisdom of Gen. Smedley Butler
Elaine Cassel
Ashcroft's Traveling Patriot Show Isn't Winning Many Converts
Stan Cox
Pirates of the Caribbean: the WTO Comes to Cancun
Tom and Judy Turnipseed
Take Back Your Time Day
Adam Engel
The Red Badge of Knowledge: a Review of TDY
Adam Engel
An Eye on Intelligence: an Interview with Douglas Valentine
Susan Davis
Northfork,
an Accidental Review
Nicholas Rowe
Dance
and the Occupation
Mark Zepezauer
Operation
Candor
Poets' Basement
Albert, Guthrie and Hamod
Website of the Weekend
Downhill
Battle
Keep CounterPunch
Alive:
Make
a Tax-Deductible Donation Today Online!
home / subscribe
/ about us / books
/ archives / search
/ links /
|