Learning the law

iTunes U rocks the house!

As I develop my business plan for Sharp Audio and the Band Off musical competition, I have been doing some research on potential legal issues that might develop. As a result, I had the pleasure of virtually attending some lectures from iTunes U. Let me share what I learned.

The first podcast was fairly academic, but understandably so, as it was the closing address given by Charles Fried at a conference at Suffolk Law School to celebrate the 30th anniversary of his contract law classic, Contract as Promise. Mr. Fried had many interesting things to say, and a very eloquent way of saying them. 

His initial point was that contracts are promises brought into the legal realm. He advises people to remember, when they draw up contracts, that they are subjecting their promises to the vicissitudes of the laws that rule that realm. And he reminds us of the importance of getting contractual obligations in writing, because the court will likely be unwilling to guess at the intentions of the parties and refuse to hear the case under the parole evidence rule.

“Most promises are not put in writing, but when we consent to enter the world of law, putting it in writing makes a great deal of sense,” he said.

The next podcast I listened to, an interview with Jay Rosenthal, General Counsel for the National Music Publisher’s Association, was quite lively, partly because Mr. Rosenthal’s manner of speech was much more colloquial than that of Mr. Fried.

Mr. Rosenthal rose up through the ranks, working with Go Go groups in Washington, D.C. and then representing Salt N Peppa, Mary Chapin Carpenter and various hip hop artists. The conversation ranged from the rise of amateur musicians (which he deplores) to the protection of copy rights as moral rights, after the European model (which he advocates).

Mr. Rosenthal is a great believer in the power of copyright to promote innovation by protecting new creative works from unfair use. He says that artists rights include the right to get paid, the right to approve the use of their music and the right of attribution.

“An artist’s performance is the inviolable property of that particular performer,” he says, pointing out that the recently passed Digital Music Copyright Act (DMCA), while a potent tool, leaves most of the work of protecting that property up to the artist herself. 

“The onus of policing the internet is on the copyright owner, not the copyright user,” he says.

While large labels have legal departments to research and issue the take down notices necessary to protect copyrighted material, independent artists are less likely to possess the money or time required. His solution? Spread the responsibility over a larger area, which he believes simply requires a more careful reading of the DMCA. The act, he says, already allows a response when a red flag gets noticed. Mr. Rosenthal suggests that ISPs and carriers need to be more proactive in noticing and dealing with those red flags.

As a record producer and music promoter, this issue strikes home with me. Having a potent tool is no good if you cannot wield it, kind of like Thor’s hammer to anybody but Thor. Mr. Rosenthal also made it clear how important it is to respect the work of our fellow artist’s, because that is the only way to add to the industry as a whole. Sampling another person’s work is not only illegal and immoral, but is simply not a creative act that adds to the culture.

My final podcast was a very interesting lecture given by Professor Daniel Lyons of Boston College Law School about an area of developing law. The talk was entitled, “Is net neutrality a virtual taking?”

Taking, in this context, refers to “a forced physical invasion of private property by a third party without the owner’s approval.” Prof. Lyons points out that net neutrality requires internet providers to allow third party access to their property. He argues that this requirement amounts to a regulatory taking.

Actions by the Federal Communications Commission make it clear that not only are they interested in regulating the internet (their official mandate is broadcast media and telephones, but they argue Title 1 gives them more leeway), but that they support net neutrality in the interest of consumer rights.

Companies like Viacom have a large amount of money invested in the infrastructure that connects the computers of the internet. These same cables also carry other information, such as telephone and television. They recoup their investment by charging other people and companies to use their wires to transmit data. What they would like to do is initiate a tiered system, much like the post office, where a customer could pay a priority rate for priority service. If, as happens, the pipeline gets clogged with data, those who pay more would move to the front of the line. 

As it is now, all packets are treated equally, and the FCC would like it to stay that way. The Circuit Court for the District of Columbia did not accept their rationale that their mandate to regulate telephone and television required them to also regulate the internet. Prof. Lyons suggests that the FCC should seek a more explicit mandate from Congress before moving forward with their plans for net neutrality if they want to avoid further embarrassment in the courtroom.

Issues of censorship, fair play and virtual takings all play a role in this policy discussion. It will be interesting to see what happens. One thing has already happened that ties into these last two podcasts directly. Recently, the big service providers—Comcast, Verizon, AT&T, and others—all agreed to take a bigger role in stifling bit torrent users, who often violate copyright and hog bandwidth. When an illegal download is detected, they will issue a warning. The warnings get more and more severe and can wind up throttling the miscreants bandwidth or even halting service.