Hard News by Russell Brown

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Hard News: Copywrong

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  • Ben Gracewood,

    I believe even Peter Jackson has felt this effect and fought it, and hence New Line wants nothing to do with him (see: The Hobbit).

    Like the recording labels, New Line will bill any and every cost that it can possibly manage to justify as a cost of making the film, so that any 'profit share' is minimised. And this includes costs paid to subsidiary companies if I understand correctly.

    The classic example in recording contracts is the label taking the artist out for dinner and drinks, then expensing that against the album production cost.

    Orkland • Since Nov 2006 • 168 posts Report Reply

  • Lyndon Hood,

    Just on DRM and meta-copyright and so on...

    Something that becomes even more pertinent when this sort of thing is being protected by the state - what happens when the copyright does expire?

    I suppose the companies have a right to put out stuff so you can't get at it ever - even it becomes perverse.

    But will people be liable for punishment one day for trying to access something that's no longer copyright?

    If not: an interesting (if paper-thin) defense occurs - "I was investigating and publishing how to break the DRM on these files, so people would be able to access them as they became legal".

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Simon Grigg,

    The classic example in recording contracts is the label taking the artist out for dinner and drinks, then expensing that against the album production cost.

    the classic record company item is payment on "net receipts", which means gross receipts less any expenses they want to throw at it. Its a scam but its virtually impossible to argue with it beyond trying to insert a limiting sub clause as to what expenses might be, or limit it to a percentage.

    Having written more than a few recording contracts over the years and argued more than a few with majors, this one is one of the nastiest. that and leaving recoupability too vague...any costs encurred whilst recording (one act I know of was billed a business class airfare for a label exec to come and check out the recording sessions to no real purpose) etc

    Just another klong... • Since Nov 2006 • 3283 posts Report Reply

  • Lyndon Hood,

    I understand that movie companies like to screw people on percentage-of-the-net contracts by doing things like owning the catering company, which overcharges horrendously.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • matthewbuchanan,

    The Listener covered the PJ story last year, attributing all the fuss to, allegedly:

    pre-emptive deals made by New Line that were not fully opened to market competition but apportioned instead to other “vertically integrated” companies within the Time Warner empire to which New Line belongs.

    In other words, if they'd shopped around for companies to sell LOTR ancillaries, PJ would have been $100 million richer. New Line offered to settle if Jackson agreed to direct The Hobbit, however he has said those terms would be ''the worst reason in the world to agree to make a film.'' Primer here.

    Auckland • Since Nov 2006 • 163 posts Report Reply

  • Jeremy Andrew,

    Jeremy, But technically the relationship between, say EMI and Coldcut, should be a profit sharing one.

    Hence the sociopathy diagnosis. Technically the relationship between Telecom & Ihug should be a profit sharing one, the relationship between Foodstuffs Inc & their suppliers should be profit sharing, but inevitably the larger 'partner' will do its damndest to screw the biggest portion of the profits in their direction - even to the point where short-term profits are sought even at the loss of longer-term profits: see Telecom's recent history.
    The smaller the company, the more likely actual people are making the decisions, the larger, the more likely 'policy' will decide how they treat partners/clients/suppliers/people.

    Hamiltron - City of the F… • Since Nov 2006 • 900 posts Report Reply

  • Simon Grigg,

    I agree Jeremy, and thus when they cry poor, or try to enforce DRM or extend copyright, they can expect little sympathy.

    Just another klong... • Since Nov 2006 • 3283 posts Report Reply

  • Jeremy Andrew,

    Of course, one can't really blame the corporations as such - its like blaming the shark when it bites off your leg while you're surfing. Its what they do, its how they're made, its corporate Darwinism - survival of the profitablest.

    Hamiltron - City of the F… • Since Nov 2006 • 900 posts Report Reply

  • Simon Grigg,

    ha, yes, and right now the digital future is the shark circling RIAA and all.

    It still comes back to what the hell is Judith doing running around after them at this stage in the game. I hold her as a person and an associate arts minister in some regard. I do recall when National's Minister of Arts (I think it was Ms Rich) was, at a thing to launch the new-quick-before-election-they-might-think-we-actually-care youth radio network in 1999, and was asked to name some NZ acts.. I think she got stuck at Split Enz and Kiri. I doubt if Judith would have that problem. She's everywhere and on first name terms with everybody. Which is why I'm so surprised.

    Just another klong... • Since Nov 2006 • 3283 posts Report Reply

  • Ben Austin,

    I was reading through this again last night, after a discussion with a friend overseas, and I noted something that kind of worries me about the format shifting clause.

    "81A Copying sound recording for private and domestic use

    "(1) Copyright in a sound recording and in a literary or musical work
    contained in it is not infringed by copying the sound recording, if the
    following conditions are met:

    There are then 7 conditions that must be met, all of which I find reasonable. However, subsection (2) is the kicker:

    "(2) Subsection (1) does not apply if the owner of the sound recording is
    bound by a contract that specifies the circumstances in which the sound
    recording may be copied."

    SO it is entirely possible that a person by purchasing the music originally may well contract out of all format shifting rights - I suspect that any publisher that introduces DRM/TDM measures would also have some sort of EULA/TOS/TOU/etc that forbade format shifting. Whether or not the aforementioned could be deemed to be contractually binding I'm not so sure. But worrying all the same.

    London • Since Nov 2006 • 1027 posts Report Reply

  • Ben Gracewood,

    Interesting. Expect to see little red stickers on CDs saying "opening this CD binds you to a contract disallowing format shifting".

    Orkland • Since Nov 2006 • 168 posts Report Reply

  • Clarke,

    So the Bill came up for its first reading in the House on Wednesday, and every single damn MP in the House (except for the Greens) voted for the stupid thing.

    I think it's amazing that every comment in this thread can be opposed to both the principles and the implementation of this Bill, yet MPs blithely vote against the interests of both their constituents and the country.

    And remember - this Bill will actually legalize spyware. When SonyBMG want to include the XCP or MediaMax rootkits on audio CDs sold in this country, they will have the full protection of the law in doing so. And even better, if you try and remove the spyware from your computer, you're on the hook for "circumventing the TPM" to the tune of a $150,000 fine and/or 3 years in jail.

    Wellington • Since Nov 2006 • 85 posts Report Reply

  • Ben Gracewood,

    Arrrgh godammit. So obviously my email to Judith just went straight into the spam folder? Or she doesn't give a crap?

    Or perhaps she's got lifetime free downloads from the iTunes store as a kickback?

    Orkland • Since Nov 2006 • 168 posts Report Reply

  • Clarke,

    I was wrong. It's five years in prison, not three.

    Wellington • Since Nov 2006 • 85 posts Report Reply

  • Clarke,

    So after wading my way through the Bill, here's how it seems to work with regard to TPMs: (disclaimer: IANAL)

    Scenario: I buy a CD, and it has the SonyBMG rootkit on it. If I stick it in my PC it won't allow me to copy the music to my iPod.

    Step 1: Under the new Bill, copying music to the one iPod I own is a Permitted Act, so in theory I'm allowed to do this (albeit I can't do it for commercial gain - which is fair enough). However the TPM restricts me from engaging in the Permitted Act.

    Step 2: Under s226E(a) I can "apply to the copyright owner or the exclusive licensee for assistance enabling the user to exercise the Permitted Act". I can just see the letter from SonyBMG now - we refuse to help, go buy another copy of your entire music library from iTunes to play on your iPod.

    Step 3: Under s226E(b) I can then "engage a qualified person to exercise the Permitted Act on the users behalf ... but only if the copyright owner or the exclusive licensee has refused the user's request for assistance or failed to respond to it within a reasonable time." Note - reasonable time is not defined. Think .. I dunno .... years?

    So far, so good. If SonyBMG tell me to clear off, I can go and get one of these qualified persons to crack the DRM for me. And under the Bill, these people are:

    - A prescribed library
    - A prescribed archive
    - An educational institution

    So there I am with my shiny new CD in my hand, trying to explain to the receptionist at the National Library (or maybe Archives NZ) how it would be really helpful if they could just clean the TPM off for me, 'cos they're the only people who can legally do this ....

    Take a wild guess what their response will be.

    Wellington • Since Nov 2006 • 85 posts Report Reply

  • Ben Austin,

    You will probably fail at step 1 - since I suspect music publishers will start issuing TOS/EULA that prohibit form shifting, which they are allowed to do. Yes, you can contract out of form shifting.

    London • Since Nov 2006 • 1027 posts Report Reply

  • Clarke,

    If I was a malware "vendor", here's how I'd hack the legislation.

    1. Set up a legitimate New Zealand company, ostensibly with the goal of music distribution. (For extra laughs, I'd even become a member of RIANZ.)
    2. Put out a free music CD, given away on street corners by itinerant backpackers. Said CD contains some public-domain music plus a malware installer that has a basic copy-protection function.
    3. Make sure the malware has a "security hole" or similar design defect that allows infected PCs to be turned into spam zombies.
    4. My nefarious business partner overseas then exploits the PCs via the security hole and sells their services to all those fabulous companies promoting fake Viagra, crappy watches, bad stocks and the like.
    5. When the story breaks about the malware infection, point out that you're a legitimate NZ business trying to make headway in the fiercely competitive music business, that your software is not perfect (and therefore may contain defects), and that you have no relationship with nefarious people overseas who unfairly exploit the security holes.
    6. Make a point of the fact that your software falls under the TPM provisions of the shiny new Cpoyright Act, and you will lodge criminal proceedings against anyone who tries to circumvent your software.
    7. When Symantec and McAfee and Microsoft target your software, complain to the police and aim to get their local CEOs jailed for their criminal activities. For extra laughs, join the local chapter of the Business Software Alliance to "help raise the ethical standards in the software industry".

    As far as I can tell from the Bill, there are no legal obstacles at all to this scenario. In fact, one of the primary outcomes of this Bill is that these business models become possible.

    Thanks to our MPs, the Age Of Malware is about to begin in New Zealand.

    Wellington • Since Nov 2006 • 85 posts Report Reply

  • Stephen Marshall,

    The problem is that even if you are allowed to circumvent the region coding, you need to get you local "qualified person" (look out librarians) to do it for you...

    As far as I can tell, almost every section of this act is broken in one way or another - see my blog postings for a topic by topic analysis. Big media/publishing must be laughing all the way to the bank.

    Stephen

    Wellington • Since Dec 2006 • 6 posts Report Reply

  • Simon Grigg,

    Or perhaps she's got lifetime free downloads from the iTunes store as a kickback?

    don't forget its Xmas party season....you don't want to be the one not invited to the RIANZ party.

    Actually that's not fair..I think Judith, who has, in my experience over many years, fairly strong ethics, is doing, in this case, the wrong thing, for the right reasons.

    Just another klong... • Since Nov 2006 • 3283 posts Report Reply

  • Compie,

    whole idea of life + 50/70/etc years to be rather repugnant, surely the exclusive economic control over an artistic work should have no relation to the length of time the creator lives

    this is only mildly interesting, but Cliff Richard being the sad old bugger he is, has outlived his copyright and has/is (?) going through a battle to retain his control over his music.

    As for prision, as long as I have 5 yearsw worth of music on my ipod I'll be happy.

    really music companies and stores are taking the piss.

    Last week in an effort to continue supporting them in the face of iTunes, I tried to request 2dvd's and 1 cd from a high street music retailer.

    No.
    What?
    No
    What?
    No, we can't get it for you.
    What?
    We'd have to get it from the states
    But it's over at real groovy
    Can't get it
    What?

    (I had a birthday cd voucher with these guys - music the gift that keeps giving - even to jail apparently).

    back over to real groovy

    Got it, that will be $47
    What?
    $47
    What?
    $47 it's an import.
    But it's $17.99 on iTunes
    sorry.

    Now I am a sad individual who once spent 8 1/2 hours in the virgin mega store in Vancouver (Stalking Joe Walsh took 1 hr), and I love record stores galore. But this sort of legislation and in the face of iTunes store and faster broadband, I better have a prision suitcase packed and ready for the men who will come knocking on my door.

    Pathetic, but at least we know Sony will be able to spy on us legally, good legislation people?

    Dunedin/Vancouver • Since Nov 2006 • 114 posts Report Reply

  • nzlemming,

    So the Bill came up for its first reading in the House on Wednesday, and every single damn MP in the House (except for the Greens) voted for the stupid thing.

    Of course they did - it can't get to Select Committee if they don't. And it's at that stage that you have to engage to make your voices heard. Hoping they'll pay attention to the rants on this thread is like hoping they'll legislate according to the comments on Micheal Laws' talkback show - not desirable under any circumstances.

    Really, people, remember how the process works.

    Waikanae • Since Nov 2006 • 2935 posts Report Reply

  • Stephen Marshall,

    And it's at that stage that you have to engage to make your voices heard

    Absolutely, and "ranting" here and elsewhere helps develop the content of the submissions as well as generating enough interest that hopefully can be used to support submissions. I, for one am intending to turn my blog posts into a submission, and any feedback/interest I get will help.

    Stephen

    Wellington • Since Dec 2006 • 6 posts Report Reply

  • Clarke,

    Hoping they'll pay attention to the rants on this thread is like hoping they'll legislate according to the comments on Micheal Laws' talkback show - not desirable under any circumstances.
    Really, people, remember how the process works.

    My original comment was not intended to say that the debate should occur in a blog thread - although that would be an interesting exercise in democracy - but simply to note that there has not been a single dissenting voice heard.

    If this is such a fabulous piece of legislation, where are the posts from the musicians claiming they can't live without it? Or the small record labels calling for the ability to imprison their customers?

    Wellington • Since Nov 2006 • 85 posts Report Reply

  • nzlemming,

    My comment was actually prompted by Ben Gracewood's agony that Judith Tizard had not refused to present the Bill based on his email.

    Waikanae • Since Nov 2006 • 2935 posts Report Reply

  • Clarke,

    My comment was actually prompted by Ben Gracewood's agony that Judith Tizard had not refused to present the Bill based on his email.

    Point taken .... and you're completely right - the select committee is the venue in which to argue the detail of the bill. Time to get together a submission, methinks.

    As an aside, I have a friend who's a lobbyist here in Wellington, and he's been pushing for an NZ DMCA for about two and a half years with various MPs on behalf of RIANZ. Looks like he finally succeeded ....

    Wellington • Since Nov 2006 • 85 posts Report Reply

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