The Proposed “Combating Online Infringement and Counterfeits Act”– yet another feeble attempt?

February 22, 2011 by Barry Neil Shrum, Esq.

Amazon.com Widgets

By Barry Neil Shrum & Nathan Drake

Since before the day that Napster was a twinkle in Sean Parker’s eye – well over a decade ago now – the legal and music industries have each struggled with ways to cope with and transform their dusty old business models from the physical status quo to the digital revolution. After the industry watchdog, the RIAA, initially targeted the Diamond Multimedia’s Rio MP3 player and then Parker, and then finally individuals were illegally downloading, the major record labels began to realize something: that perhaps the fact that consumers were downloading music illegally was merely a symptom of the problem rather than the source of the problem. So, the RIAA also began suing P2P file-sharing websites that sprang up instantly in the place of Napster, websites like Kazaa and LimeWire. While this method proved to be a bit more effective, the process still accomplished little in preventing future P2P file sharing services from materializing, each taking the place of its predecessor and each growing as rapidly as the one before. In yet another continuing effort to solve the music industry’s nightmare, new legislation has been introduced to Senate which is entitled “Combating Online Infringement and Counterfeits Act.” (S. 3804)

The purpose of the “Combating Online Infringement and Counterfeits Act” (COICA) is to provide owners of intellectual property additional weapons in the battle against illegal downloading. As indicated, the inherent difficulty of deterring and prosecuting these myriad individuals who are profiting off copyrighted materials is that they easily hide behind the anonymous wall of the Internet. Many of the sites providing access to this illegal property are situated well off the shores of the United States, overseas and beyond the long reach of the court’s jurisdiction.

Another problem is the sheer mass of the problem. One study indicates that as much as 1 in 4 Internet users download illegal music – an astonishing statistic! Let me state that another way: 25% of the traffic on the Internet is to sites that allow illegal downloading of copyrighted material, be it digital books, movies or music.

As Senator Leahy, one of the sponsors of COICA says, it is essential that the government enforce a

“means for preventing the importation of infringing goods by rogue websites, particularly for sites that are registered overseas.”

Through focusing on the domain names, COICA gives the Department of Justice the authority to pursue and prosecute offending website, both domestically and abroad. Incentivizing and rewarding creative endeavors remains the core ideology of American copyright protection, and instilling this value in our society is crucial if our society will continue to create. According to the Chamber of Commerce, “…American intellectual property accounts for more than $5 trillion and IP-intensive industries employ more than 18 million workers.” Therefore, protecting this integral aspect of American ingenuity and economy should be a priority.

Additionally, COICA provides universal jurisdiction to the Department of Justice in pursuing and prosecuting domain names that solicit American intellectual property in the United States. If the law succeeds, individuals committing copyright infringement will no longer be able to hide behind the protection of their native country, without fearing that their action can and will be pursued by the United States.

In addition, COICA allows third party participants to be prosecuted for “enabling” the website to sustain itself and lend legitimacy to the practices and products of the website. As Senator Leahy states, “These [third] parties monetize the Internet site by enabling U.S. consumers to access the infringing website, to purchase content and products off the website, and to view advertisements on the website. Without partnering with these entities, the financial incentive to run an infringing Internet site is greatly diminished.” Those directly and indirectly supporting copyright infringement will be prosecuted.

For the purposes of COICA, the government defines a website as, “dedicated to infringing activities.” Due to the outstanding number of infringing websites, the government intends to pursue only the most “egregious rogue websites that are trafficking in infringing goods.” To be considered an infringing website, one of two criteria must be identified. First, the website exhibits the “existing threshold for forfeiture” under U.S.C. 2323, or the website reveals no commercial value and intends to only sell copyrightable items protected under Title 17 of the United States Code.

One of the primary opponents to the passage of COICA is the Consumer Electronics Association (CEA). Although CEA supports and agrees with the general direction of COICA, they feel its vague and wide reaching language could potentially harm legitimate businesses that are not committing copyright infringement. CEA says, “Our primary concern is that the scope of S. 3804 was significantly broader than its intended purpose of shutting down ‘rogue’ or foreign websites solely engaging in the exchange of pirated content or goods.” The ambiguous language of COICA could potentially diminish previous milestone cases according to CEA, including the “Betamax Case” determined by the Supreme Court in 1984.

While the technological environment is constantly changing and creating new hurdles for the consumer and business, the importance of copyright protection still remains. A constantly transforming environment requires innovative and relevant legislation to meet the creative needs of our culture. In an attempt to counter this decade long battle, legislation like COICA would allow the government to target the source of global piracy, and enforce the relevance and weight of American copyright protection. But our legislators must be certain to craft language that does not impede the rights of its citizens. Balance is need lest we resort to the overreaching, irrational, and over reactive activity the RIAA engaged itself in over the past decade.

RESOURCES & FURTHER READING

http://supreme.justia.com/us/464/417/

http://openjurist.org/title-18/us-code/section-2323/forfeiture-destruction-and-restitution

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_reports&docid=f:sr373.111.pdf

Jimmy Eugene opens for Gary Allan and performs for a sold out crowd!

February 21, 2011 by Barry Neil Shrum, Esq.

My friend and client, Dr. Jimmy Eugene Pollard, performed a sampling of his music in front of a sold-out crowd, performing as the opening act for Gary Allan’s immensely successful Get Off On the Pain tour. The Pavillion at the Coushatta Casino Resort welcomed over 4000 people for the February 19th event. Allan’s tour has earned a spot on the New York Times Top 10 year end list and earned rave reviews in People, USA Today, Country Weekly, American Songwriter, Billboard, Associated Press among others.

Jimmy Eugene is most known for his interesting life story captured in his book, On the Journey Back. Jimmy was a teenage runaway, joining the military after lying about his age at 17. After service to his country, Jimmy returned to complete a degree in dentistry. He serve another stint in the Navy, achieving officer status, and then retired. Later, he entered medical school and became a maxillofacial surgeon, building a huge practice in Lake Charles, Louisiana (and another in Texas). It was almost twenty years later that Jimmy started writing music. He was in a severe automobile accident, injuring his spine. While in traction, Jimmy had a dream and began hearing music for the first time in his life. He learned to play the guitar and begin to write song. Through a series of connection with Nashville, Jimmy became a client.

Saturday night’s performance was only Jimmy’s third time on stage. “I was a little disoriented when the lights hit me up there,” Jimmy told me in his back stage motor coach. Jimmy performed songs from his new album, Joy of the Journey. He was backed by a team of A-List players from Nashville, hand selected by Steve Tveit of Omnisound and veterans Pat McCrath on guitar, Dug Grieves on electric, Dow Tomlin on bass, Dennis Wage on keyboard, and Steve Hinson on steel guitar, among others. The Louisiana fans seemed to enjoy the performance. A special thank you goes out to our musicians, and to Randy, Jay and all of the other fine staff members at Coushatta for making our visit there extremely enjoyable. Loved the crawfish étouffèe!

Visit Jimmy’s website for more information.

Technorati Tags: Music Industry,Coushatta Casino Resort,Gary Allan,Get Off On the Pain tour,Louisiana

The long tail wags the dog! An independent artist succeeds using the Internet

November 7, 2007 by Barry Neil Shrum, Esq.

I have often advised my clients in the past that the new direction for independent artists is what I refer to as “guerilla” marketing, meaning finding alternative means of marketing your product. One of the most explosive methods of doing that over the past few years has been the Internet. One of the problems with marketing yourself on the Internet, however, is how do you get people to come to you? The void of the Internet is so vast, that finding an artist whose sound is something that matches your musical taste is even more difficult than finding a needle in a haystack!

So, it is a beautiful thing to see an artist actually breaking into the Billboard charts catapulted in large part by her success on the Internet, particularly her MySpace page. Her success story gives hope to every artist whose desire is to put out a record, throw it up on the Internet, and have people flock to listen.

Enter Indianapolis, Indiana singer-songwriter Sally Anthony whose “eTeam” of over 125,000 fans, including over 40,000 friends on MySpace, helped propel Anthony to stardom. Thanks in large part to that online community, Anthony’s first album, Vent, released in 2004, sold over 175,000 physical and digital copies. Two releases from that album spent months on the R&R pop chart.

Her new album, Goodbye, released October 23rd, has already sold 14,000 digital copies. It has already reached the top of the pop charts at walmart.com, FYE Digital and iTunes and on November 7th landed at No. 9 on the Billboard Heatseekers Chart. The album is being distributed by her company, Gracie Productions, through Imperial Records/EMI.

Anthony is succeeding because she is treating the music industry as broader than just the radio promoted, hit-driven, plastic disc business the major labels seem stuck in. She is viewing the music industry as an entire package, generating buzz wherever she can, from the ground up rather than from the top down.

I predict that we will start to see more and more of these types of breakthrough artist as the popularity of YouTube, Facebook, MySpace and other online communities grow in popularity and as the pioneers of the Internet find more creative ways to index diverse product, match it to the tastes and purchasing patterns of Internet users, and make recommendations – sites such as LivePlasma, Pandora, Audiobaba, Last.fm, MyStrands and, of course, Amazon,

As radio fades into the annals of history alongside the monolithic corporate conglomerates that are record labels, these innovative types of indexing sites will help those artists in the deep dark recesses of the “long tail” find an audience for their music. By the way, if you haven’t read Chris Anderson’s treatise on this subject, The Long Tail, buy a copy and dissect it now. The long tail consists of that product that is not in the mainstream — not on the shelves of Wal-mart — but product that is still sought after and purchased by people. Maybe it’s only ten people per month, but people still want and buy it. It is the millions of artist that fly below the radar of the “hit-driven majors.” These are the artists who can benefit from the exposure the Internet can provide.