Lit Reactor Podcast on piracy flops miserably

by on Mar.19, 2014, under copyright law, File-sharing, Publishing

podcastHaving just subscribed to Lit Reactor – a site dedicated to all things book, writing, and Chuck Palahniuk related – I just listened to a dated podcast wherein the main topic was piracy.
This was their pilot podcast, so it’s understandable that they’re going to spend much of the time introducing themselves and talking about the site, but they were obviously so uncomfortable with the topic that they spoke about piracy for only ten minutes of the fifty-one minute broadcast, often looking for any excuse to veer off topic.
And during those painful ten minutes, the three members hit pretty much every anti-piracy stereotype possible.

1. Piracy is the same as physical theft.
2. Piracy is just as bad as X, where X is some horrendous crime (in this case, rape).
3. Piracy has a measurable cost, and really hurts artists.
4. You’re not just taking money away from rich producers, but the carpenter/painter/grip on set.

Their “discussion” was also peppered with ad hominem attacks, all of which were equally typical, suggesting that anyone who shares files is an entitled thief who deserves whatever punishment the courts dole out. The sole voice of opposition was the guest, who spent much of her air time defending the fact that she earlier admitted to having a pirated copy of a book on her Kindle.
I’ll not waste time going into these points because they have been refuted time and time again. Doing a few minutes of research (to include dipping into the stacks of respected peer reviewed journal articles) would destroy these strawman arguments post-haste.
Rather, I want to suggest that the reason we still hear such vitriol from otherwise intelligent people is that they cannot admit their own ignorance of the current copyright climate. It’s okay to be ignorant of something! I’ve read maybe three articles ever on Iran, so if someone asked me whether I thought we should enact more economic sanctions against Iran because of their nuclear program, I would happily admit that I am far too ignorant on the topic to have an opinion.
Alas, we have confused knowing about something with understanding it. The people holding this podcast (two out of three are editors or moderators of the site) might know a few things about piracy, whether because of news stories or personal anecdotes or the propaganda that lobbyist like the late Jack Valenti used to spout. But that does not imply any degree of understanding. Forget that the sheer volume of hours such people have spent studying IP law could probably be counted on one hand.
The scary part is, the main anti-piracy banner-waver in this wrote an article about book piracy. (I wish I could link to it, but it’s behind a paywall). He knew absolutely nothing about it. He provided no fact, only opinion, and his opinion wasn’t substantiated by anything. He’s just some dude who hates pirates because – somewhere along the way – he became convinced that pirates steal from him. He does own some intellectual property (though I doubt very much one could find it on the pirate networks; he’s not that big of a name). Perhaps he feels it’s his duty to shake his fist at it because he runs a site about books.
Regardless, just as someone who subscribes to Science magazine has no real right to participate in a forum on climate change, people who simply foster a strong like or dislike for piracy should leave any real discussion to people who’ve spent more than ten minutes researching it.
I recognize the irony here: I’m writing a blog that is largely opinion-based suggesting that discussing piracy should be left to those who understand it…but who am I? I’m not an IP lawyer. I have, however, spent countless hours studying piracy and IP law. Something that I hope comes out in terms of how I’ve handled past topics, and which I am quite confident does come out in my book.
But think of it this way. The people on this podcast are book gurus. They aren’t writing book reviews for Harper’s Magazine. They haven’t worked as publishers for one of the big five publishing houses for the last decade. Yet I wouldn’t hold a candle to these guys in terms of book knowledge. I might be a reader, but they would run circles around my understanding of fiction and the novel. Thus, I don’t put out a podcast wherein I claim to have a worthwhile opinion or insight about books.
It would be nice to see the same thing occur in terms of piracy. If all you have to say is that you don’t like it or it’s stealing, then maybe just stick to something you do understand.

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Will LEGO let go?

by on Mar.12, 2014, under copyright law, Film

LEGO movie posterI just took my toddler to see The LEGO Movie, having just introduced him to LEGO games on the Playstation 3. He cheered when he saw Batman and Superman, but missed the message beyond the rat-a-tat jokes and inside humor.

You’ve probably heard that the movie is about more than pop-culture. More than just a message to “be special”. It clearly has a lot to do with remix culture.

The main character, Emmet, has only ever followed instructions and consumed what he was told to consume, both in his choice of products and media. As a result, he sucks at building things out of his imagination. But he learns slowly that creation doesn’t have to come from one’s own skills or entirely from one’s own imagination. It can build on what others have done.

The final speech to the antagonist (a man who wants everything to stay the way he built it) at the moment of doom is riveting. It is a metaphor for today’s intellectual property environment, where we are surrounded by amazing media made by some of the most talented artists on the planet…and then we’re told not to touch it. Not to break it down and figure out how to use it to make something new.

I’m not here to present one more argument for remix culture. Frankly, it’s gotten a lot of ink and miles of film (deservedly, but still). Rather, I am interested in whether The LEGO Movie is just paying lip service to this inchoate culture or whether it actually means what it clearly implies: that creation belongs to all of us.

How could the rights-holders of this film prove it? Certainly not by turning a blind eye to any piracy of the film (though I wouldn’t turn ‘em down), but by allowing and even encouraging non-competing remix and derivative works spinning off the film. Okay, The LEGO Movie, while great, isn’t going to have millions of artists suddenly dying to make remixes of it; there’s little to make it any more appealing in terms of sampling than most other movies.

However, even a little press on how the rights-holders (or even the production studio or artists themselves or the LEGO corporation – someone, anyone) fought to make sure that this movie doesn’t have the usual bonds of modern American films, such as YouTube takedown notices for people posting the recurring theme song “Everything is Awesome”, would be a real testament to their message.

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Net neutrality is no more. Can we afford the consequences?

by on Feb.18, 2014, under copyright law, File-sharing

Writing about the death of net neutrality is long overdue, but then again, so is a new post on this blog.

Here’s the skinny: Internet Service Providers (ISPs) have managed to get rid of the FCC’s rule on keeping the Internet information agnostic. Basically, all packets of data were created equal, whether a streaming movie, an email, or *gasp* a file-sharing site.


In January, this rule (called net neutrality) no longer applies, via a bunch of legal gobbledygook that argued semantics. Thus, now ISPs will be able to scale their charges to certain packets of information, slowing down this packet, speeding up that one. The consequences are pretty clear: they will no doubt tackle streaming services such as Netflix and Hulu because they are competitors. Companies such as Time-Warner make their money from cable television as well as being an ISP, so why would they want Netflix creating hordes of “cord cutters” paying ten bucks a month instead of a hundred? So they charge more for those packets.


What this has to do with piracy is also clear. P2P sites, torrents, and newsgroups use detectible protocols to transfer information. In other words, if your ISP wanted to know whether you use torrents, it wouldn’t be difficult to find out. They just don’t want to lose you as a customer, so they often don’t care what you’re doing with your bandwidth until a rights-holder detects that you’re sharing a copyrighted file and complains.


That will change, too. No doubt part of the selling point for shooting down net neutrality is that it will open the door for “combating piracy” – choking off protocols that are used for file-sharing. Perhaps finding a way to bottleneck sites that provide streaming content without licensing, etc. Just use your imagination. This indeed looks at all file-sharing as illicit, which it isn’t, but those people legally sharing files will be collateral damage.


I’m not bemoaning the fate of file-sharing: pirates will ALWAYS find a way. It’s a joke to believe that the death of net neutrality will have any noticeable effect on file-sharing. Rather, it is dubious at best and profiteering at worst to use the excuse of fighting piracy simply to make more money by holding Internet traffic hostage. I have noticed a slowdown in using the War on Piracy for such arguments, partly because it has become abundantly clear that piracy is not the scourge rights-holders and content providers have always claimed it is and would continue to be. However, it seems that this was going to happen with or without piracy as the scapegoat.


Reading the conversations about articles on this is enlightening. Some have brought up that that Internet formed without net neutrality; however, one has to admit that we are in an unprecedented era in terms of profitability of the net. It is both ubiquitous and carrying information for which people are willing to pay or – at the very least – click on an ad or watch a commercial to enjoy for free. So it’s not a coincidence that ISPs are winning this battle now; it is most profitable to do so now.


There’s really no telling exactly what will happen now. After all, Comcast has even vowed to pretend as if net neutrality were still in place until 2018. But I would suggest that before prices for certain data types or restrictions on certain protocols begin to appear, it might be a good idea to bank a few seasons of your favorite shows. If you’re into that sort of thing.


NOTE: Here’s a great infographic for brushing up on net neutrality.
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Deb’s Frozen Lemonade Trademark Battle: Part Two

by on Jun.20, 2013, under trademark

debsThings are moving along in the alleged trademark infringement case between local frozen lemonade makers Deb’s Lemonade and much-larger Del’s Lemonade up north. Roanoke Times columnist Dan Casey notes how Deb’s has received some local legal backup, and heavyweights, from the sound of them.

But let’s back up. While I might come across as one part naïf and another part ideologue, I can’t help but see the fatalism in the way our justice system handles IP cases such as this. Sure, Casey is just guessing at how much taking this case to court would cost, but if he’s even half right, then our legal system has a real problem.

When a company has been using a logo for thirty-six years, nine years before another company even files for trademark, it shouldn’t take $100,000 in legal paper-shuffling to decide that such a case is groundless. What would be the consequence of ignoring such legal threats until the case went to trial, and then presenting the evidence to a judge sans any lawyers acting in defense?

Would a judge have nothing of it, find for the plaintiff, and call it a day? In other words, is having a lawyer and spending tens of thousands of dollars the new sine qua non for any chance of a favorable outcome?

Probably not. Alas, when we hear about court cases, we’re apt to hear about dramatic cases because drama sells ad space. In reality, if Deb were to spend a whopping fifty cents on a stamp and mail a letter to the Rhode Island-based law firm making the threats and say simply: “I’m not paying you anything. I’m not discontinuing the use of my logo. And (most importantly) GFY,” I doubt it would spell automatic doom for her company. Tens of thousands in lawyers’ fees, however, just might.

Sure, I get it, she’s getting some free counsel, and good for the law-firm standing up for the little guy. But I grow weary of hearing about such cases because it implies a complete disconnect between average citizens and the law governing them. The day you need a lawyer to use the same logo you’ve been using since Jimmy Carter was president is the day our legal system has failed.

Of course, we do harbor silly ideas when it comes to the efficacy of the legal system. We think that threatening to sue someone is the same as successfully suing someone (far, far from it). We believe that every threat a lawyer makes is valid, and that any violation of the law is worth bringing to trial.

In reality, the Deb’s debacle will likely not even see the inside of a courtroom. The whole thing is far too redolent of the typical pay-up-or-else legal hectoring displayed by all sorts of law firms on behalf of rights-holders. But once the rights-holder finds out how much he’d have to cough up in legal fees to take this to trial, especially when it seems he could easily lose the case, it’s more likely he’ll just shake the proverbial fist and say something like: “I’ll get you next time!” or “You haven’t heard the last of Del’s!”

My sincere hope is that – in the meantime – Deb’s doesn’t lose any sleep or any money over it.

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Deb’s Frozen Lemonade gets heat

by on Jun.13, 2013, under trademark

debsToday I read about a trademark issue right here in my city, as iconic Deb’s Frozen Lemonade comes under fire from a New England competitor, Del’s Lemonade. As you can tell from the column, the two logos are indeed similar, though a lemon isn’t much of a stretch as an icon for those selling lemonade. The similar-sounding names and likened cursive font are enough to raise an eyebrow, but here’s the thing. Deb’s isn’t some mom and pop that opened up in the last year, hoping to cash in on Del’s brand recognition (they have none here) or business model. Deb’s has been around for slightly longer than I have: thirty-six years.

By the letter of the law, this doesn’t invalidate Rhode Island lawyer and Del’s attorney Jeffrey Techentin’s claim, though it does bring into question the claim of being confused for Del’s and benefiting from Del’s business. After all, if it took Del’s attorney 36 years to detect the supposed infringement (and then only because Techentin stumbled upon the Deb’s Facebook page) then it’s highly unlikely there is any confusion or effect.

IP law, of course, is as void of reason as any other set of laws, so common sense will have no place in these proceedings. However, it’s an important exercise to consider exactly how trademark protection is operating here. If the purpose of such protection is to avoid brand confusion or prohibit hacks from cashing in on a brand’s good name, then that protection is rather overstepped (as with – no doubt – many, many other cases).

Mind, it’s likely Del’s doesn’t want Deb’s to take down their signs so much as pay them a settlement. Really, how different is Techentin’s scouring for infringement from the antics of ACS: Law and ASCAP? Not very.

The sad truth is that a small shop like Deb’s doesn’t have the financial might to see this to trial, where possibly some reasonable judge (they exist) would throw this out based solely on the number of years Deb’s has been in operation and the number of miles apart the two establishments operate. It’s even possible local columnist Dan Casey will rouse enough media attention to make Techentin and his client back off (his columns have had surprising effect locally).

At the very least, this will mean I will go out of my way to make sure Del’s never sees a dime of mine if every I find myself summering in New England.


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Apple DRM: Nothing new here

by on Jun.07, 2013, under copyright law, Music


For those involved in copyright and who understand Digital Rights Management (DRM), it’s no surprise that Apple has historically done all they can to ensure that media is not shared. On one hand, this is understandable. They sell the media, so it’s not in their best interests to make sharing it easy. One could even argue that making sharing nearly impossible was necessary to form deals with record labels.

There have been worse models (Napster mp3 player, I’m talking to you), but I still appreciate the older Lyra’s or digital Walkman’s, where you could just drag and drop songs onto or off of the device. Getting music off an iPod is difficult. For the lay user, it is impossible.

But on the other hand, Apple has worked hard to make the user experience seem friendly, intuitive, and open. Their ads on television or product placement in films never show someone frustrated at being unable to decipher the arcane way in which data comes off an Apple device.

In a speech by the late Steve Jobs, he threw around terms like “rip” and “own” when speaking of the iPod and iTunes, but this is precisely what Apple DOESN’T want. They want you to buy every song from iTunes, have it on a single device, and rebuy the song when the inevitable happens: a new computer, a new iDevice, failed hard drives – whatever. They are a for-profit business, so this makes total sense. It is, however, perpetually frustrating when people buy into the Apple image.

A friend of mine just bought an iPhone. He’s playing by the rules: bought it new, full plan; no jailbreaking or unlocking for this guy. He used to use an iPod Touch, onto which he poured the contents of his extensive CD collection. The laptop through which he did this is long gone: sold or just mothballed after some part failed.

“But the files are on my iPod. I can SEE them on there. I can listen to them,” says my friend. “Why can’t I transfer them onto my iPhone instead of having to rip all of those CDs again?”

I told him the first rule of iPod or iPhone ownership: select “Manage manage music and videos” on the iTunes homescreen. This will make the device work more like a drag and drop device. It isn’t a fix-all, but it’s a zillion orders of magnitude better than “syncing”. Manually managing files, however, wouldn’t help here. You can’t drag files off your iPod and into your iTunes library. You’ll be greeted with nothing but the Ghostbusters logo (minus Slimer).

My friend has a loose idea of what he is and isn’t supposed to do according to the RIAA, saying that he isn’t trying to make a copy of the songs. He’ll move them from one place to another.

Alas, the only answer is for me to step in, avail myself of some third-party program designed to wrench songs away from Apple’s deathgrip, and put them onto the new device. If I didn’t, what would happen would be much grimmer. My friend would again spend countless hours ripping his music. It is ironic that in neither case does Apple lose or gain money. Same for the rights-holders of the music. All that happens is that another consumer butts against the reality of legal digital media: that it is gated and controlled, only leased for specific pathways.

I don’t expect Apple to suddenly discard their DRM tactics, nor for their adverts to be any more honest than a McDonald’s commercial. I’m just hoping that eventually the default reaction to their DRM will not be confusion followed by compliance, but rather a refusal to play the game by Apple’s rules.

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“Arrested Development” downloads reveal possible pirate motives

by on Jun.01, 2013, under Film

imagesAn interesting article on TorrentFreak mentions how – despite the entire fourth season of “Arrested Development” appearing on Netflix recently – it was still a popular download on the torrent sites. Not terribly so, but downloaded a good bit nonetheless. Site author Ernesto asks if this means that pirates really are cheap. After all, who can’t cough up $8 for a Netflix subscription or – better yet – share one with a friend and only pony up half that?

He brings up that the number of downloads doesn’t compare with the popularity of cable-only shows, and while it’s difficult to determine what demand would have been if the shows weren’t on Netflix, it’s fair to say it would have been more.

Dropping down into the comments of this story, however, I think reveals some good insight into the pirate mind beyond the reasons Ernesto posits in his article. For one, while Netflix manages to be both cheap and facilitate time-shifting (much like a DVR), space-shifting is limited to devices that have an Internet connection. Too (and I believe this is the big one) Netflix actually maintains the “copy” of the content. When you watch something on Netflix, it’s streaming; you cannot download it to your local device.

Many pirates have long made a habit of archiving because they don’t know when something might disappear. Consider how – admittedly with some notice – Viacom content disappeared from Netflix recently. And when space-shifting, it’s sometimes easier to adapt a pirated copy to, say, an iPod for a long trip than to work out whether you can stream content somehow.

I believe in Netflix, and I applaud their ability to meet what was obviously a need. Were it up to rights-holders, we would have only cable and DVDs. But I do believe that a strong number of downloads of Netflix content is simply pirates wanting copies for themselves and not a reflection of the staunch unwillingness to pay for any content. Many who pirated the content – in other words – are likely also Netflix subscribers. There’s no way to prove this, alas, but just as it’s silly to count raw numbers of copies pirated and multiply that by MSRP to calculate “losses”, it’s equally silly to think no one who pirated the show also had a Netflix subscription (though this is surely the argument pro-copyright articles citing this example will posit).

That said, there will always be people unwilling to pay a cent for digital content. But frankly, what is to be gained from that market anyway? If they aren’t willing to pay $8 for all the content on Netflix, it’s unlikely any amount of delivery or access tweaking will get them to open their wallets. At that point, does it really matter if they’re watching Gob perform his magic for free?

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Writer’s Conference Hotbed of Piracy…And That’s Okay

by on Feb.18, 2013, under copyright law, Publishing

conferenceI recently attended a writer’s conference where one of the classes was on copyright, a sort of “how to protect yourself” that I had attended the year before. That year, it was put on by an archetypically suave IP lawyer who gave a PowerPoint presentation where every slide bore a copyright icon and was about litigation options for “stolen” IP.

In other words, nothing that any of the largely unpublished writers at the conference need worry about, say, ever.

That’s not to say that my fellow writers didn’t construct valuable prose – just that the market for such writing overwhelmingly pays nothing, occasionally paying in contributor copies or perhaps a crisp ten-dollar bill.

The inevitable question arose: Why would I pay $35 to copyright a story that will only net me $10? The lawyer didn’t have a good answer. He thought that perhaps we could compile a collection and copyright everything annually like a photographer might do, but he wasn’t sure.

People left confused and even more afraid of the tortuous realm of copyright law. Job well done.

The rest of this year’s conference acted in beautiful irony to that vapid presentation. (Full disclosure: I didn’t even bother going to this year’s copyright presentation, as I seriously doubted the presentation – though by a different lawyer – had changed all that much, since it was by the same firm).

From the first night and through the following Saturday, copyright infringement permeated the conference. It began with singing “Happy Birthday” for the student photographer. And then, every PowerPoint presentation except for the lawyer’s was in clear violation of copyright.

The class on how media changes how we write was replete with copyrighted images. Another on refining your book sales pitch offered a fitting metaphor of the publication process (Hope, Trial, Relief, and Disappointment) through showing a full ten minutes from the beginning of Raiders of the Lost Ark. Another presenter offered to email an example of a six-figure book proposal to attendees that his publishing house had given him as a guideline.

All of these things occurred organically. None were malicious or for-profit. All helped the presenters as well as the attendees, and all very much violate copyright. Were someone so inclined, he could report the violations to ASCAP or the publishing house or the company from whom the images came and likely earn the conference creators and/or venue some flak. Likely no more than scary legalese on company letterhead, but enough to kibosh any such activity in the subsequent years.

And who would gain by such enforcement? Would presenters take the time to license clips or songs or images? Of course not. They would simply leave them out of their presentations or offer no presentation at all. They would be reluctant to print anything for handouts, dubious about emailing anything out – perhaps even their own proposals or queries or sample chapters, fearful that they might be violating the conditions of their publishing contracts.

We certainly would never sing happy birthday in chorus, no matter the tacit delight of the blushing teen photographer.

So rights-holders and even licensing organizations would gain nothing by letter-of-the-law obedience to copyright here. But who would lose? Clearly. Everyone else.

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MPAA’s Dodd changing tune, but not his song

by on May.21, 2012, under copyright law, Film

There’s some talk amid the copyleft and copyright critics about the Motion Picture Associate of America (MPAA) and how its CEO Chris Dodd indicted the use of the term “thievery” to describe copyright infringement.

As much as I’m a fan of showing the disparity among opinions/statements by any trade organization that has held such an integral role in clinging to old models and criminalizing customers as the MPAA, I only wish that this statement meant something.

In truth, it’s not as if Dodd is now going to foster a more pragmatic approach to the “War on Piracy.” He will not – for instance – decide that the MPAA needs to alter its historical hardliner stance against file-sharing, for instance. Let alone make any suggestion that trade organizations may not be the answer to dealing with infringement to begin with (that is, that they have a poor ROI – which they do).

No, I believe this statement to be one of two things: either a hollow attempt to appear flexible or progressive, or simply an off-the-cuff remark not meant to be taken so literally.

The problem with those who profit from bogeymen is that there can never NOT be a bogeyman. There will never come a day when the RIAA or the MPAA or the USTR will suddenly reveal that – all things considered – everything’s running pretty smoothly. They will not begin any discussion by questioning their own historic logic, wherein they have been wrong over and over and over. They won’t suggest that some great evil is about to befall America’s IP industry and then suggest that they could be wrong: that they’ve been wrong so many times in the past that this is just a guess, and not a very good one at that.

I just don’t want anyone falling into the trap of hoping to please anyone whose paycheck depends on bogeymen, because it is a futile effort. Even if DVD or CD sales suddenly saw a massive upsurge, do you think that the trade organizations would suddenly stop playing Chicken Little? Of course not. They would produce the same horrible threats they always have in order to entice legislators and the general public to tighten the digital belt even further. There is no stasis for men like Dodd or any other trade organization figure. No balance that would suddenly satisfy them and stymie the perpetual doomsaying.

I could be wrong. I suppose it’s possible that some MPAA propaganda could begin to excise the word “theft” from the verbiage, and I would be so pleased to see this. But the odds are low.

Just as such organizations have clung so fervently to old distribution and media models, I don’t see them surrendering the “theft is theft” rhetoric anytime soon. Not until there is another catch phrase more egregious, more demeaning, and more effective to apply.

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NBC’s “The Voice” shoves copyright firmly behind the curtain

by on May.17, 2012, under copyright law, Music

If you’ve been watching the American Idol spin-off show The Voice on NBC then you’ve seen some amazing renditions of popular songs, some across genre, and others creative tributes to someone else’s version (not necessarily the original). What you wont see – even in the live shows – is any discussion of copyright or performance rights.

The Voice has followed in the footsteps of every preceding show with both planned and “spontaneous” performances of pop songs by sidestepping any conspicuous legal barriers inherent in performing licensed music. You might hear the occasional “when clearing this song…” as an introduction to some anecdote, but only once that I can remember in Season Two.

Sure, no one wants to watch a show where they spend half of their time talking copyright, or where a singer wants to perform “When a man loves a woman” but can’t because they couldn’t clear the rights in time, but the consequence is that producing and performing any song at whim seems simple and feasible – as if one need only decide to perform it, and it is there for the taking. What we don’t see is that not a note is played without contractual say-so, certainly in-line not only with the perceived “value” of the song, but also in tandem with what the new version will glean in digital sales. The Voice songs have topped iTunes after each show.

And yet, the verbiage of the “coaches” contradicts this idea. They consistently tell the singers: “You OWNED that song” or “You made that song your own”. When – in reality – not only do the singers have no ownership of the song, they likely have few if any rights to the licensed performance of that song, despite the implicate popularity.

It’s more of the same: where inherently creative derivative works or performances seem naturally to “belong to” the person who did them, but this doesn’t happen. I suppose it’s only good practice for the singers on the show, since – if they go on to deal with people in the music industry thereafter – they had better get used to people getting rich of their talent while they receive little or nothing.

I’m certainly not claiming that The Voice (a very decent show if only because it lacks the infused drama of pretty much every other reality show), is unfair to the contestants. All will be able to cash in on their new popularity, and the winner will receive a record deal and $100,000.

I’m more concerned with how this and so many similar shows portray performances as seamless and natural. How worries over rights are never a factor when choosing a song, but rather the decision is based solely on creative direction. This does a poor job of reflecting the reality of the music industry, and instead showcases a parallel universe where creativity ignores copyright and where artistic license flouts a performance license.

If only.

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