Industry information that you can actually use November 2000 In this issue: NAPSTER THREATENS COPYRIGHT INFRINGEMENT SUIT Exclusive!!! In the "Isn't it Ironic Department," NapCrap, (www.napcrap.com) a pro Napster site that sells very entertaining T-shirts that parody the Napster controversy, was threatened by Napster attorneys with a copyright infringement suit of their logo. A fellow called Norm and his son, Stephen (who goes by the handle Rp) started the site to support Napster in their fight against the Goliath Recording Industry Association of America (RIAA). Stephen designed comic T-shirts (Great ones, I might add) that satire the Napster struggle, and advertised the shirts on their site. Imagine Norm's reaction to learn that a law firm, hired by Napster to police the web for infringement, sent them a nasty letter. Norm was shocked. Especially since he had sent Napster an E-mail telling them that he was putting up this site and never heard back from the file sharing service. (They must have been a bit busy) For a while there it seemed like the leading file-sharing company was unwilling to share their logo in a "fair use" parody. Considering how many copyright lawyers Napster has under retainer at this time, you would think they could tell this was the case. Thus far Napster and NapCrap have a meeting of the minds and Norm and Stephen are, at least for the moment, operating with their blessing. It's nice to share. MADONNA DECLARED MORE POPULAR THAN JESUS. The World Intellectual Property Organization (WIPO) intends to kick some serious web butt in the digital age. WIPO is an ad hoc policing organization that includes its own court, where complainants can state their case for trademark and copyright infringement. This wouldn't be so bad if we could figure out how the WIPO "thinks" in the first place. Behold their inconsistent method of justice: This month they concluded that the domain name Madonna.com, currently registered to a porn distributor, was the rightly owner of the one and only Material Girl, and promptly ordered it relinquished from its present owner. Madonna, the "singer" (who has appeared in Penthouse and published a book of explicit photography) apparently felt that this rogue site and its"trashy material" might tarnish her image. Madonna's case was based on the legal argument that the porn site's "art product" might be confused with Madonna's own. The WIPO's decision (possibly swayed by free concert tickets) was in direct contrast to a decision made earlier this year in the case regarding a domain name called Sting.com. In that case, British pop star Sting was unsuccessful in obtaining the transfer of the domain name under the same argument used successfully by Madonna. (Probably due to the fact that Madonna's testimony was probably more compelling to the all male panel of lawyers. ) The WIPO denied Sting's request because, according to them, the word "sting" is"a common English word." Whereas, "Madonna" could only mean the performer. After the decision, Madonna was seen making a note in her Palmpilot to register the domain names "God.com and "Chirst.com," just in case. (I made that part up) In a related, fictitious story, Volkswagen is being sued by Paul McCartney for possible infringement due to confusion of the Beetle automobile. It's apparently easy these days to mistake a popular car for the former Beatle's recent string of popular hits. In an interview with himself, McCartney said, "I just don't want people to think I'm a imported fad from Germany." How does this effect you? If your real name is something like Bowie, Prince, Bonno, etc., you will have to change it if you want to have a domain name that matches your own. What to look for The lawyers are going to have a field day with this one. Watch for many, many, many, many complaints brought by top artists against anyone with a domain name that sounds remotely similar to theirs. Remember this is a worldwide issue, not just in the US. Imagine the possibilities. RIAA LOSES HEAD NAPSTER NAZI, WHILE NAPSTER IS CAUGHT IN A LIE Former RIAA lawyer, Steven Fabrizio is no fool. Seeing his sinking ship start to veer towards an iceberg, the "general" of the Napster/RIAA war, has called it quits and bailed on the RIAA (the lobby group suing Napster on behalf of the Big Five major labels). Rather than fight the "good fight" Steven will be engaging in a different kind of war: taking an extended vacation with his new wife. RIAA president, Hillary Rosen shocked by the sudden news of her long time trustee hitting the trail, was too stymied to say anything other than the standard media training comment to reporters this week. ''We'll be fine,'' Rosen muttered, biting the sides of her cheeks. Probably not, Hillary, as Fabrizio has been the main architect of many Internet related copyright battles aimed at suppressing artists from marketing their own music independently from the Big Five. Some of his greatest hits have been the 1998 suit where the RIAA sought royalties on sales of Diamond Rio portable digital-music players, in which the RIAA came off looking like a class of amateurs, as they left the court house in disgrace. But then, there was this year's string of Fabrizio victories against MP3.com, which have already cost that company $80 million in settlements. With BMGs surprise announcement of their alliance with Napster only a couple of days ago, it can make the paranoid mind wonder if Steve-o had a bit of inside info of his own, that help him in his career decision. Caught in a Lie? However, Napster is not off the hook either. The faux working class heroes, who are now firmly in bed with music giant BMG, was caught in a lie that their new big brother partner will have to answer for. One of Napster's affiliates reverse-engineered Napster's peer-to-peer sharing technology in order to develop open-source clones. They claimed that Napster's so-called, "playing dumb" routine--not being able to police what gets posted on their service--is a sham. According to them, the company could, with relative ease, screen out the great majority of infringing files from its music directory. If they wanted to. Whistle blower, David Weekly, a longtime fixture on the MP3 scene, who has posted an analysis of Napster's protocol on the Internet, claims Napster has all but perjured themselves. ''Napster knows who is sharing what with whom else, and they could stop it.'' Meanwhile, Napster, with little fanfare, released a Mac version of their software. And the band plays on. How this effects you Coincidence, that Fabrizio's ship sailed just as the RIAA is about to get a Federal Court ass-whooping? I think not. And why? Because the suit is stupid. Hey, if I know two people, one who owns a Rolling Stones record and one who wants a Rolling Stones record, and I introduce them to each other, and they conspire to copy the CD, should I go to jail for "facilitating copyright infringement?" If Napster loses, that's what the new law would likely be. Scary, when you think that the entire music and Internet industry operates on people giving each other music. But all this is mute, now that Napster has made their bed with Big Five BMG to set up a peer-to-peer service that will rival AOLs. Meanwhile, another thorn in the RIAA's side will be a new Bill recently introduced called the Music Owners' Listening Rights Act of 2000. This ill-fated project, if passed, would allow you to store CDs that you bought on your hard drive and listen to them on line without it being considered "infringement." Naturally, MP3.com and Napster have been salivating at the possibilities but this bill could hurt more than it will help in the long run, at least in my opinion. If you're a supporter of the digital wild west and want to keep music "free" on the Internet, you'll want to do a search on this Bill and get the facts for yourself. (For those interested, the dude to write to is Congressman Rick Boucher (D-VA) and the Bill's # is: HR5275.) What to look for Whoever wins this one the RIAA will have huge PR problems to solve especially now that their own constituents are coming down on Napster's side. They will likely get behind several pro-intenet causes just to look impartial. Don't let this fool you when they do. Take notice of the causes the chose to "support." They will likely be ones that involve multitudes of bureaucracy and ambiguity in their intentions. For instance, To ease anti-Internet rap the RIAA is attracting, this month The National Music Publishers' Association, Inc. (NMPA) and the RIAA jointly announced that they have agreed on a way that songs could be licensed on the Internet. This is a huge step in the right direction. ('bout time) But how long this will take is anyone's guess. This will likely effect companies like, Musicbank; one of the few companies that has struck a deal with some major labels and offered a per-streamfee to provide access to music from various catalogs. So far Warner Brothers, and Uni have signed on to Musicbank's system. (BMG also has an alliance with them, as they "collect" alliances like baseball cards across the entire Internet this month. ) Three out of the Big Fives is not bad, and shows signs that this is this company to look out for in the near future and that Majors are making a move they should have made years ago. Watch out for RIAA/Musicbank mutual back patting in the press. The point to all this is that it's entirely likely that by the time courts reach a decision on Napster, it wouldn't matter any more. MTV FOLDS THE BOX: SENDS ITS LONG TIME COMPETITOR TO THE BACK OF THE BUS You haven't seen it in the trades yet much, but starting December 31st, 2000 viewers tuning into The Box will get different logo in the lower right: MTV2. Aside from the change in brand will viewers notice any other difference? Oh you betcha! The Box: music television that you (sort of) control, has had no control after being sold to Viacom over a year ago. (Viacom is the parent company that owns MTV). Starting the first of the new year MTV plans to immediately fold The Box into nonexistence. My inside source says they claim this is due to the fact that The Box has yet to turn a dime of profit in the decade it's been on the air. One then wonders why Viacom bought it at inflated book value? The Box was a pay-per-view music channel where viewers would call in and request a video in exchange for a fee of about $4 per view. This format attracted mostly labels that were trying to create artificial popularity for a new release. The Box did its best to hide this, but everyone pretty much knew that labels, not sit-at-home viewers, financed everything on The Box's programming. No one seemed to mind this except MTV, who at one time had a virtual monopoly on TV music video broadcasting. The Box, by comparison, cost labels only a fraction of the cash required to launch a video into heavy rotation on MTV. The Box also didn't pretend to be about popular taste to those inside the industry. Their airtime was available for a fee. Usually this took the form of a label hiring them to produce an artist promotional for about $10,000. This would be followed up by "fans" calling in to request (and pay for)the video viewing. A New Kind of Merger The MTV press release calls this move a "merger," but most mergers that we read about involve a blending of resources. This is more of a chop job: MTV plans to fire everyone, throw the name away and simple jack into The Box's cable distribution system which will effectively boost their cable accessibility by 30,000,000 homes. The fact that we've heard very little about MTV's folding of The Box speaks volumes as to their commercial and possibly political motivations. It's no secret that The Box was/is still geared mostly towards Gansta, underground, and hip hop, while MTV and its sister brand, VH-1, is bleached with almost exclusively "mainstream" artists. MTV2 does not intend to address this inequity with their new programming. So, the real question then is,what will happen to the cool urban videos with those hot chicks and great cars, when The Box goes bye bye in January? In this department the spin in MTV's press release is pure PR poetry, "By incorporating [The Box's] technology and expertise in interactivity and localization, we are giving fans more choice and control over their music, and the music industry a truly viable outlet that will expose and break the broadest possible range of artists." --David Cohn, General Manager, MTV2. It's unclear what choice or control David Cohn is referring to, since the MTV2 plans no "call in" service or diversified formats that include The Box's video catalogue, but I'm not cynical. I'll wait and see. The Ugly Truth Label executives have never enjoyed financing the rap and R&B culture. The fact that rap/Hip Hop outsells rock, and has been since the late 1970s, was suppressed for the longest time. This changed in 1991 when the emerging technology of Soundscan made the real statistics impossible to hide. Naturally, when one genre prevails another recedes. In this case it was rock/alternative artists, who now found themselves begging for tour support money. (Mangers of rock acts, you may recall the long waiting periods for contracts to close and often with tight album budgets.) Majors begrudgingly had a hard time justifying very expensive rock acts. Why send five guys on the road with mountains of equipment when three rappers, three mikes and a DJ will earn twice as much in the retail store and at the box office. This sentiment, however profitable, has never sat well in the mindset of label execs, most of whom entered this business hoping to promote the next Three Dog Night, not the next Snoop Doggy Dog. It's not unreasonable to assert that the higher power structure wouldn't mind seeing the statistics tilt back to what they were in the mid 1970s, when "music meant something." Could The Box "merger" be part of that agenda? It depends how paranoid you are. What to look for There will probably be significantly less of urban music on your cable dial after December 31st. About a year from now watch for Billboard interviews with label heads announcing that sales in R&B music have "mysteriously" fallen off. Fewer signings of Afro-American artists, and a merging of R&B/Hip Hop/rap marketing campaigns to AAA formats will follow this.(Nothing new there.) Also expect more homogenized artists like Christina Aguilera and N'Sync as a result. Album budgets for Afro-American artists will likely be reduced, smaller imprint labels, specializing in urban artists, will also be merged into their parent companies. Billboard reporters will make it sound as if this is an organic phenomenon; that the fickle public has just finally grown tired of Gangsta antics and ghetto/folk raps, but you will know, cause you will have read it here first, that the fickle public had a little help in their decision making. What you can do If ever there was a need for a letter writing campaign, it was here. Make sure that programmers at MTV2 know that you intend to be vociferous unless they allocate airtime for all types of artists. What I want to know is, why hasn't Urban Expose, the cutting edge entertainment journalists of color, picked up this angle; unless they have something to gain from this euthanasia of The Box as well. I'll be looking into that in the coming months. Stay tuned. A list of Viacom International Inc's holdings: MTV Networks, MTV: MUSIC TELEVISION, MTV2, VH1, NICKELODEON/NICK at NITE, TV LAND, TNN, CMT and THE DIGITAL SUITE FROM MTV NETWORKS, a package of nine digital services, all of which are trademarks of MTV Networks. In addition, MTV Networks operates the MTVi Group and Nickelodeon Online, and a portfolio of leading Internet properties. And now the boxed up Box. It's on big happy family. AOL WANTS TO "CURE" GAYS Don't look for this story in Entertainment Weekly (A Time publication) but, the AOL/Time Warner, probably the most significant merger in music history, has been previewed by an embarrassing bit of news when it was reported this week that AOL Chairman Steve Case donated $8 million to a religious school who has pledged to "cure'' homosexuals with prayer. This is no joke. There is intra-irony here in that Time Inc. has developed a reputation of being very tolerant of homosexual hiring practices. Just one more frill that will likely fall by the wayside after the merger. It is actually Case's wife, Jean, who made the donation to the Westminster Academy, a private school run by the Rev. D. James Kennedy's Coral Ridge Presbyterian Church of Fort Lauderdale, Fla. She claimed that she had no idea that religious school didn't approve of homosexuals and didn't make the connection between it and the vocal anti-gay Church that owned the school and was right next door to it. Lowell Selvin, CEO of Gay.com, a website that preaches tolerance, was himself tolerant towards the Cases: ''Maybe they weren't aware of the ties to the anti-gay ministry,'' he said, stoically. "Some of our best friends are Gay," Jean resonated at the press conference, where she was surrounded by Afro-Americans, Jews and physically challenged people. After the conference, Steve Case could be heard screaming at his wife, "Jean, I told you not to write checks without consulting our publicist!" (I made that last paragraph up. It didn't happen. Any similarity to people living or dead is not my problem.) How this affects you I can't wait till after the merger and these guys are the biggest record label in the world. What a party it's going to be. SECURE MUSIC DOWNLOAD INITIATIVE IS ANYTHING BUT? SAY IT AIN'T SO, JOE. SAY IT AIN'T SO It's a digital pissing match of unparalleled proportions. Tech heads on both sides of the Secure Music Download Initiative controversy (SMDI) are showing the world who has a bigger one this month when a group of Princeton lab geeks claimed they broke the supposedly "unbreakable codes" that would allow the SDMI to stream music over the Internet "securely" without fear of being pirated. SMDI's code was going to be the corner stone of "safe sales" of music and pave the way for major labels to final start putting their catalogue on-line to compete with emerging renegades like MP3.com. But now it's shot to hell, thanks to Princeton computer-science professor Edward Felton and his group, who leaked to several news sources that ''all four of [SMDI's] schemes would have been cracked by pirates if they had been deployed.'' Naturally, a company working for the Initiative (Verance Corp.) which produced one of the allegedly hacked watermarking technologies, disagrees. They told news sources that SMDI is cool and that their technology had not been cracked. Whom do you believe? How does this affect you? If SMDI system fails it means that major labels will likely become even more obnoxious about litigating small on-line record companies into nonexistence. If the system succeeds they can at least try to monopolize it, charging exorbitant licensing fees to the smaller company's for "encoding and watermarking" their CDs. This is clearly the lesser of the two evils. Either way, the losers are small labels. What to watch for Well, first off, if SMDI assigns new contractors to write code, that will be a sure sign of the truth that the codes were broken. At best, it's a set back for the secure music on the web and worse, SMDI could become the payola model for the new millennium if we let it. Because, who qualifies to receive the "necessary" technology to distribute on-line and who doesn't, could be for sale to the highest bidder. Imagine a major alliance (like AOL-Time Warner or AT&T/BMG) making the SMDI a required standard for use on their distribution system. They could, in effect, hold the entire industry hostage. Watch to see which Big Five players come to its aid in the next few months as SMDI tries to climb out of this PR debacle. What you can do about it Prepare for the storm. Controlling new technology is not a new gig for Big Fives and their parent holding companies, like Philips Electronics (holders of the CD patent) . They did this back in the 1980s with CD pressing. (Remember when to press a CD you needed a petroleum jelly encased room and men in environmental suits?) If you're an on-line label, start shopping around for an alternative to SMDI as its is only a matter of time until SMDI (or some other version of it) establishes itself as a standard. When they do, large labels will find a way to take control. My sources tell me that there are already contenders sniffing around the hen house. I can't name names but their initials are AOL) This means elitism on par with things like super high priced "independent promotion" (ala "Hit Men"-- required reading in classroom.) which keeps smaller labels from getting their artist's spun on commercial radio, or RIAA certification of Gold and Platinum sales awards and Billboard chart placement, which requires barcoding, registration fees and affiliation dues, or MTV airplay which, due to the way cable distribution laws are written, requires registering trade names in every state (each state charges a fee). The list goes on. In each case above Indies have found alternatives to the traditional lines created by the industry. SMDI, however, will be the most important new area where an alternative will be necessary, as the Internet becomes more vital the mainstay of Indie distribution. There are alternatives in development, I suggest learning about them before your choice is made for you. Absent any objection SMDI has an excellent chance of become a monopoly. OBITUARY Spin Records, the promising on-line record company, which many were looking towards as a model for the new frontier of on-line record companies, has all but shut its doors. Several weeks ago they announced that most of their staff was let go with little to no notice. If you log on to their website today it reads: "updating our service." I didn't know these guys personally, but I mourn their passing. Services are being held at www.betterlucknexttime.com. That's all for now. Till next time. Moses Avalon |
Napster caught in a bold faced lie|
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