Justice David Souter’s opinion in MGM Grokster a few weeks ago was the first U.S. Supreme Court decision to mention Modest Mouse by name, but it was otherwise less juicy than it looked. It’s had no immediate effect on the file-sharing scene—Grokster is better known for spyware than for its user base, anyway—and the gist of the ruling is that it’s a bad idea to advertise that infringing copyrights with your product is fun and easy. The Court didn’t even declare that Grokster was liable in this case, only that it could be; the case is now back in the hands of a lower court.
That didn’t seem to bother former Grokster CEO Wayne Rosso, who declared in a June 27 cnn.com article that “the bottom line is that consumers are going to have to get used to paying for their music. Period.” Two days later, Rosso’s new peer-to-peer service Mashboxx announced a licensing deal with Sony BMG; Mashboxx’s consumers will pay 99 cents a song for Sony’s music, including Souter’s favorite emo band. (Two years ago, Rosso told The Washington Post that the major-label-revived version of Napster would fail “because it will be just like every other pay service. What’s the big deal?”) Meanwhile, the kids who want to disseminate music in a hurry these days are doing it with anonymous Blogspot blogs, BitTorrent, and files hosted by Rapidshare and YouSendIt. If there’s one thing music fans are learning in a hurry, it’s how not to get sued.
Music-related lawsuits are threatening to take out innocent bystanders, though. According to Jeff Waye, who manages the North American branch of Ninja Tune, the Montreal-based electronica label’s insurer recently canceled its policy, simply because Ninja Tune does a lot of business with the U.S.—America has such a litigious climate that somebody might, say, cut a finger on a CD case and decide to sue. Waye and his associates eventually found another insurer who was willing to cover them, as long as less than 80 percent of their sales were to the U.S. But if, say, the Herbaliser’s new Take London became a runaway hit in the States, Ninja Tune could be in trouble.
And sometimes the law is on the side of whoever can afford it. Now that some time has passed since the June 8 police/Recording Industry Association of America raid on Mondo Kim’s, it’s worth considering exactly what got raided from the store, and to whose benefit. In the words of the RIAA spokesperson quoted by mtv.com, all of the discs seized were “urban in nature”—that is, mixtape CDs. They weren’t pirated copies of commercially available albums; as Tricia Romano noted in the Voice a few weeks ago, the confiscated titles were compilations that are basically sanctioned by both artists and labels (who supply exclusive materials to them), with the understanding that the mixtapes will yield more cachet than cash.
One possibility here is that the left hand of the music industry doesn’t know what the right hand is doing. (Don’t rule that out.) The other is that the right hand is telling the left hand what to do. The point of mixtapes is to generate buzz—and it’s a lot easier to make something exciting if it seems a little bit illicit. So there’s the occasional bust of a high-profile retailer like Kim’s that doesn’t do a lot of business for RIAA-associated labels, but does sell lots of mixtapes; the word goes around that the Man’s trying to bust mixtapes, and artists who contribute to them get more street cred and sell more of their $18.98 major-label CDs. Follow the money.
Unless, of course, there’s no money to follow. The newest version of Apple’s iTunes allows its users to subscribe to podcasts—regularly updated, downloadable, often homemade audio programs—or promote their own podcasts through Apple’s index. You can buy the Herbaliser’s “Gadget Funk” in iTunes for 99 cents, but if you use iTunes to download a podcast that contains both “Gadget Funk” and “Float On,” it’s free.
Free for you, anyway. It’s not clear yet how the law’s going to work, but podcasters are probably obligated to pay the copyright owners of both the compositions they play and the recordings of those songs. (Compositions often go through rights management organizations like ASCAP and BMI; there’s no equivalent rights clearinghouse, or rate, for recordings because the closest thing there’s ever been before is radio airplay, which has always been considered to be promotion for record labels.) So some podcasters, fearing a retroactive bill or worse, are sticking to material covered by a Creative Commons license that permits rebroadcasting. But nobody’s been coming around to rough up podcasters for their lunch money—yet. Sometimes life’s OK.
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