Commentary By Steve Effros What’s the Issue? I know it sounds cynical, but the answer to the above question is always a variation of the same thing: control, the split, the money. It’s trite to say it, but that shopworn advice "…follow the money" is as true as ever. Last week, I suggested that it was past time to wade back into the swamp of copyright legislation to see if there was some new way to deal with the growing mess of multiple distribution mechanisms streaming the same copyrighted content. We have to think "outside the box" because the current way we do things simply won’t work any more. The technology has changed so dramatically that even our notion of what a "copy" is of a work, or whose right it is to do what with something that has already been purchased, has to be re-examined. A few examples suffice. Of course, the Cablevision "network DVR" case I mentioned last week has to be at the top of the list. But this week, EMI made an announcement with Apple that "most" of their enormous play list of music (EMI is one of the four largest copyright holders of popular music) will be distributed without digital rights management restrictions and at twice the current quality of Internet music downloads. That’s what got the headlines. What seems to have been buried in all the hoopla is that the non-DRM, higher-quality downloads will cost more. In other words, this is a price increase for music downloads. Yes, they are going to be "better quality." Yes, they will be able to be used in more ways because the artificial DRM restrictions will be removed. But bottom line: we just saw music downloads jump from $.99 to $1.29. Clearly what has happened here is that some distributors have decided that they can make more money by giving a better, less restrictive copy of music to the buying public for a higher price than trying (and failing) to impose DRM restrictions and intentionally degrade the product to discourage copying. Is their calculation right? Other music distributors question it, but we’ll see. The point here is that EMI and Apple have decided that there is more than one "product" they are selling, although both derive from the same copyrighted work. So maybe we shouldn’t be looking at the issue of "copyright" at all but rather at marketing. Apple, by the way, will still sell the $.99 version of the music as well. Look at the issues surrounding the new NBCU/News Corp venture to respond to YouTube, and the Viacom case against that company as well as the network DVR issue, and Hollywood’s fixation on "security" to prevent "indiscriminate, widespread" copying of movies on the internet and the like. The more you do, the more you appreciate that the issue is less about who owns a copyrighted work than it is about how to maximize the revenue derived from selling that work. Now there is the associated question of what, exactly, that "work" is. Are those two different songs iTunes will be selling, or are they the same song intentionally degraded in terms of what the consumer can do with it? It’s all about the money. I don’t say that’s bad, I just think we should acknowledge the new marketing possibilities and risks that digitization has created. We should start thinking in terms of reasonable "market" solutions rather than trying to alter basic concepts of copyright, or "fair use" for that matter. That won’t work. The challenge is to re-think the marketing and tracking mechanisms. More to come.

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