After putting in a fair amount of time as a document attorney and dabbling in other legal matters I felt it was time to focus on what I want to be doing: Intellectual Property work. As of today I’ve put up a listing promoting my services (trademark and copyright filings). I’ve done enough work in both to feel confident and very competent in doing them. I’m starting with low prices, I hope not so low as to not be taken seriously, but low enough to attract potential business.

I’m equally qualified in matters of speeding tickets. Although tickets aren’t my specific field of interest I can still do them and do them well. I’ll offer them as a service until I can sufficiently fill my days with IP work. If the filing work fills my days enough I can hasten my plans for sitting for the patent bar (completing my IP lawyer toolbox).

Exciting times.

Or translated to English: “I apologize for having only delivered Awesome flavor in the past, I’m pleased to inform you that a little while ago we started shipping Super Awesome flavor and consumers have been loving it!”

Edgard Bronfman speaks out

At first I was exciting, thinking this to be at long last an admission of guilt for the legal bullying conducted by the RIAA against music consumers. Perhaps a sign that the course would be changed. With no more context the above quote from a top guy at Warner Bros Music (Edgar Bronfman, CEO) looks like things could soon change. A thoughtful reading of everything he said makes his message more clear. He touches on the inflexibility of the music industry only to make mention of ‘exciting new things’ WB Music is doing under his leadership. An admission of guilt, but not for litigation, but not giving them what they want.

It’d be like Pepsi (which doesn’t have anything to apologize for as far as I know) had a press conference. At this press conference the president of Pepsi
apologizes for the lack of exciting diet options in Pepsi products then proudly announces two new diet options for each of the major Pepsi flavor options and then talks about the kind of success Pepsi has had related to tailoring their product for the dietary needs of all Americans! Then he puts up a morphing graphic that changes back and forth between looking like a Pepsi can and the American flag.

That is the sort of apology Bronfman delivered. They’ll now be better at giving you ring tones and music videos bundled with the CDs you buy. They’ll make online shopping easier. With the click of a single button you can have the new Avril CD, a high quality desktop image, two music videos, three ringtones and you’ll be added to an email list that will tell you when she is coming to your town AND you’ll be first in line to buy tickets as they’ll be available to you 2 days before anyone! (That was all purely hypothetical, but he mentions some of that). He goes on to explain that consumers are willing to pay a premium for such an option. When he says that I don’t know if he means $10 for the album alone, $13 for the album + extras, or are we talking $20? Or a subscription service? You can subscribe to Avril for $2 a month!

This is of course not the solution that I’d be looking for in the battle over mp3s. This isn’t an apology for the tactics employed by the RIAA, this isn’t a ceasefire, this is a product announcement. It isn’t even a new product announcement, it’s something they’ve been doing for some time now. It’s Bronfman patting WB Music on the back for delivering a product to the consumer. In truth this might be a step in the right direction as far as creating products and generating more revenue off of the IP, but its still a great distance from where it ought to be.

This will be an introduction into the conflict dealing with the downloading and uploading of music. It will be off the cuff. Many readers will be very familiar with the situation, others will not. It will be important to establish a baseline of knowledge before delving deeply. If I was responsible I would probably have really great citation on this stuff, but for readability (or more importantly writeability) I will refrain.

The Players:
The RIAA (Recording Industry Association of America)
Essentially it is a nonprofit trade organization. In theory Universal, the Bertelsmann Music Group, Warner, EMI and Sony (the Major Labels) are competitors. In practice they work together some, funding the RIAA. The RIAA is the hitman, or enforcer, or bulldog. We’ll call it a Mastiff. Friendly and protective of its masters, but freakin’ huge and capable of dishing out punishment. The RIAA has been launching a litigious campaign of terror, designed to recoup lost revenue from peer to peer (p2p) downloads and to scare individuals into not downloading anymore. They can be quite indiscriminate, attacking grandmothers, the poor families that don’t even have computers and less than innocent college students. They can take on anyone regardless of the bad press, because their lone pursuit is insuring the interests of the Major Labels. When the press covers the RIAA and its law suits, they don’t tend to put any blame on the Major Labels, just the RIAA.
So, RIAA = Mastiff = a small army of lawyers.

Consumers: Normal Folk
These people consume the product. They pay for it (sometimes) and take it (on other occasions). Of course this is a huge and varied group. Some are nefarious, some are innocent but many are somewhere in between. The laws concerning copyright protection at the founding of the United States were written to be applicable to those that were in the businesses of publishing. They were made for cartographers and authors, to protect the work they do to create from those that would want to profit off of their labors wrongfully. With the digital revolution and a massive expansion of what is covered by copyright law now normal folk, consumers, reside in the shadow of copyright law. Before things went digital (allowing for lossless copies of media to be made and being able to render the media to data which could be copied and distributed freely) the average Joe was not likely to run afoul copyright law. But things have changed. Now individuals have the ability to hurt giant publishing houses without knowledge or intent.

Artists
They make the music. The relationship between their CD sales and money in their accounts has been fuzzy for quite some time. TLC and Toni Braxton both managed to broke while coming out with platinum albums. Artists that have little bargaining power may wind up getting 5-10 cents per album sold, and they have to pay their own studio fees out of that before they start realizing profit of their own. When songs are played on radio, covered by bands in bars, played on jukeboxes the songwriter gets royalties. The performer gets royalties only with internet radio and satellite radio. Songwriter rights are often assigned to the Major Labels (or are already there for those artists that don’t write their own songs).
Long ago my favorite band, Roger Clyne & the Peacemakers, parted ways with the Major Labels. From what I recall their highest selling album (as the Refreshments, it was called Fizzy, Fuzzy, Big and Buzzy) sold 125,000 copies. By Roger’s account (my memory is fuzzy about the exact numbers, but the point will be made regardless) his first independent release sold around 30,000 and he made far more money off of that album than he did with Fizzy, Fuzzy.
Recently Radiohead and Madonna have defected from the Major Labels.
Canada has it’s own RIAA and many Canadian artists have proclaimed that they do not want their fans sued for acquiring their music.

The Stage:
The internet age.
Napster, Grokster, LimeWire, Kazaa, allofmp3.com, bittorrents etc.
People can search for songs (and movies, software, etc etc) and download high quality audio for free (where the RIAA, the Major Labels and the Artists do not get to see their cuts). When the RIAA quotes figures about just how much money they are losing, they estimate a number of downloads from free sites and services then pretend as though each one of those downloads takes the place of a sale. This runs against common sense, as one is more selective when they have to pay than when they are getting whatever it is for free.

In future installments of this subject I intend to go into the DMCA, Creative Commons, the stories of individuals who have been sued by the RIAA, the history of the RIAA, Magnatune, iTunes, the fate of internet radio and anything else I want to (or readers direct me to). This entry is a bit of fluff, future entries should be brass tacks.

I have a Juris Doctor from the University of Missouri, Kansas City. I’m licensed to practice law in the state of Missouri. I can appear before the Federal Court for the Western District of Missouri. This site is to be populated with my opinions and occasionally researched stances on legal topics of the most interest to me. Nothing here should be read as legal advice. Leaving comments here or shooting me an email does not make me your lawyer. An attorney-client relationship does not arise out of this website unless both you, the reader, and I are in agreement that such a relationship exists. It can not be assumed. Furthermore, this site has no weight in court.

Really I want to be able to stick my neck out here. I gave ‘This Week in Law’ more than a fair shake and I was frustrated by the format. The lawyers on that show were very noncommittal. I don’t know if they were concerned that people would rely on the things they said or if they just didn’t want to misstate anything and look like a fool later, but it made the show fairly diluted. On this site I’m fine being wrong. Court cases that I cite may be outdated, especially if this website lasts for very long as you could be reading a blog post that is old, citing a case that has been overruled. This site may point you down the correct line of cases to understand a topic, but I could screw up. I don’t plan on giving this site quite the time I would give a client. I want to be able to speak about the Intellectual Property Law matters (and those laws I feel abut the field) that I feel passionately about.

At the the time of this writing (days before I’ve even bought the domain) the topics that I intend to write about are:

the mp3 war
artists versus record labels
Google’s attempts to archive old books, film (orphan works)
Creative Commons
digital defamation
bloggers and free speech
writers getting copyrights on works that include trademarks owned by others
British Copyright versus American Copyright (the Beatles’ will soon enter public domain)
Cultural Property Law
the people page’s victims versus me
net neutrality

And to be straight with you, there are many resources that will be far better than mine for the foreseeable future.
Lessig and the EFF are both fine advocacy sites.
The People vs the RIAA is a phenomenal website dedicated to the mp3 war.
And the list goes on. Hopefully I’ll find a voice and bring something new to the table.
But in the very least running this site will keep me sharp on the field of law that I want to deal with.

I plan to have a new post up every Wednesday.
Posts will most frequently be a researched opinion but may occasionally be a snapshot of my fledgling legal career. Milestones that relate to legal accomplishment that don’t violate some legal duty to talk about will be posted here.

(this may appear redundant, this is a sticky page, which means it’ll matter later and likely always)