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CLASSICAL  May 2005

CLASSICAL May 2005

Subject:

Re: Hyperion Loses

From:

Karl Miller <[log in to unmask]>

Date:

Wed, 25 May 2005 10:24:48 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (106 lines)

Anne Ozorio wrote:

>As with any complex issue there are more sides to the story than meet
>the eye.  Much as we might like Hyperion - and I have enough of their
>work to claim shares!  - it's irrelevant.  Law is based on objectivity,
>not on "who our friends are".  Otherwise, it's mob rule, however popular
>that might be.  Before we rush to conclusions about this specific case,
>too, it might be fair to read the actual details of the case and the
>reasons the judge gave for his decision.
>
>As consumers, we naturally want what we think is best for us.  But
>with so many others at the trough, why single out for blame someone
>who made the music playabler in the first place?  If people are serious
>about wanting quality music, they have to accept that it won't come from
>nowhere.  Note, too, that there's no more talk about "million pound"
>settlements.

I would agree with much of what you write, but, I don't believe in the
notion that the law represents objectivity.  I remember all too well the
BETAMAX case.  It stated that it was not illegal to sell a machine that
could be used for illegal purposes, for example taping a movie and keeping
it.  Consider taping a television program and fast forwarding through
the commercials.  In a sense, the commercial paid for the program and
should not the viewer be required to watch the commercial?  On the other
hand, consider the case of Napster.  They held no music, yet they were
shut down because their service had been used by others for illegal
purposes.  From my perspective, these two legal decisions were contradictory.

Paying the musicologist real damages might be totally appropriate, but
again, as you suggest, we don't know all of the details of the case.
Nobody will gain by Hyperion having to pay punitive damages.

Knowing the facts, is very difficult.  I just read the six page letter
sent by the Association of University Presses to Google.  The Association
is concerned with Google scanning copyrighted material.  It is my
understanding that Google plans to make available only a few pages from
these texts (well within the copyright guidelines), yet their scanning
of copyrighted material, a complete book, is clearly illegal.  Google
does not own the copy, nor is it in immmediate need of preservation.
By letting people know a bit about a book, might it not make them want
to purchase the book...possibly so?  Also, a publisher might appreciate
knowing that Google is maintaining a digital archival copy of their
publication.

Who is being served if the publishers group is successful in stopping
Google from scanning their material.  I think there is enormous potential
for good.  The publishers could let Google charge for full access to the
books once they are scanned (no doubt Google has this in mind), with a
percentage of the charge going to the publisher.

By the way, reading that letter from the publisher's association clearly
illustrates to me how much the media will manipulate information to make
a "headline." What I have read in that letter is not reflected in the
media accounts I have read and seen.  The complexity of the issues is
such that it would not likely fit into a "news bite."

While I don't know if there is truth to the statement that the court
decision will shut down Hyperion, I am reminded of what happened to
Russian Disc.  As I recall, the label had the rights to the recordings,
but did not get permission from Rostropovich to use his name on the
cover.  When the cellist's attorney raised the issue and threatened a
law suit, the company just shut down because they wouldn't have the money
to pay court costs.  So, who won, and objectively, what was right.  We
lost a record company that brought us recordings not otherwise available,
and Rostropovich kept control of his name.  For me, it would have been
a simple matter for the company to pull all of the Rostropovich...but
then, did Rostropovich really have the right to control the use of his
name, since, as I recall (and I am often wrong), he had made those
recordings in the former Soviet Union and did not own individual rights
to them.  Ok, should the performer have the right to control which of
their performances should be issued?  In the US, if you perform under a
contract, you don't have control.  In much of Europe, the courts tend
to think otherwise.

Again, while I don't know the full story, I agree that the copyrights
are there to protect intellectual property, but, in a somewhat different
example, I also believe nobody is well served if the protection of that
right of ownership precludes making it available.  I know, if you own
it, it is your call but...

I have what for me is the most magnificent performance ever given of
the Shostakovich 8th Symphony.  It features Koussevitzky conducting the
Boston Symphony.  Fortunately now, in Europe, it can be released.  The
cost of releasing it here in the US would, as far as I know, require
permission from the Boston Symphony, as well as payment of the mechanical
rights (which are nominal-these rights also have to be paid in Europe,
but in most instances, that is done through the pressing plants which
assume responsibility for obtaining those rights...in this country if
it isn't listed in Harry Fox, you can spend a lifetime finding ownership).
Getting permission from the orchestra might involve paying the full union
costs...as well as allowing them artistic control over the issue.  The
costs alone could be well over any net one might expect from sale of the
item.  In a sense, the item costs too much for it to be made available
legally.  Objectively, it seems to me that the BSO is entitled to it
rights...yet, who wins?  The orchestra gets nothing when it could get
some negotiated percentage of the net, and those who might find value
in the Koussevitzky performance can't hear it, unless it is released in
Europe and then they can buy it via Amazon UK and have it shippped to
them in the US...I hear it is scheduled to be released in Europe.  Stupid
laws.

I love the AFM because it protects the rights of the musicians who play
the music I love. I hate the AFM because it keeps me from the historic
broadcasts I would love to hear.

Karl

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