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Rhapsody’s Incredible Shrinking Catalog

So I was quite pleased to see that Rhapsody had added M.I.A’s Arular
recently released by Universal.  They had previously released the
version available from Beggar’s Banquet, but the tracklistings are a
little different.  I had been listening to the album for a few
weeks, when, today, I noticed that I can no longer play “URAQT”
off the Universal release, and that the single version is only
available for sale and not for streaming.  Same goes for “Bucky
Done Gone”, though I can play it off the Beggar’s Banquet
release.  What gives?

This is not entirely uncommon in Rhapsody.  For instance, The Streets’ A Grand Don’t Come for Free was previously available for streaming as was Garbage’s new Bleed Like Me.  Both are now for sale only. 

It’s bad enough that the catalog lacks many albums that I
want.  It’s bad enough when particular tracks on albums
cannot be streamed.  It’s far worse to pull those
songs once I’ve already become accustomed to having access. 
Rhapsody says I get access to over one million songs and growing, but
apparently they can’t even guarantee me that the catalog won’t shrink
in the future.

Understanding Wheaton v. Peters

As part of a history class I took this semester (with KC Johnson, who you may know from Cliopatria), I decided to do a little research on Wheaton v. Peters,
the Supreme Court’s first copyright decision, which rejected a
copyright claim under common law and ruled that obtaining a copyright
was dependent on strictly following the federal statute’s
requirements.  In so doing, it essentially rejected a natural
rights view of copyright.  While scholars have often treated the
case as embodying anti-monopolistic sentiments about copyright at that
time, it has not been entirely clear to me why the Court  followed
this view. 

One way of attempting to answer why the majority in Wheaton reached its result is to focus on the opinion’s author,
Justice McLean, and how he treated monopolies in other cases. A
biographer of McLean does not devote a word to Wheaton, but at least
one scholar has deemed Justice McLean’s opinion in Wheaton “Jacksonian” in its handling of monopolies. Just three years after Wheaton in Charles River Bridge v. Warren River Bridge,
the Court ruled that monopoly charter grants must be strictly construed
in the public’s interest. This case would come to define the way the
Court limited monopolies in various arenas over the next several

To explore what drove Wheaton, I drafted a short paper on the subject comparing Justice John McLean’s concurring opinion in Charles River Bridge and his opinion in Wheaton. This
draft is pretty rough, but it reaches some interesting, though
admittedly tentative, conclusions – so, I figured I’d put it out
here. Ultimately, I think the comparison demonstrates that
McLean’s anti-monopoly stance was not related to the broader
anti-monopoly issues at stake in Charles River Bridge; deeming it Jacksonian in that sense is improper.  What’s more, McLean’s views in Wheaton may have in part been connected to his views on federalism and separation of powers.   All comments are most welcome.

[updated 10:13]

Ernest on Lawsuits and Leakage

Ernest’s blogstorm continues, which means this post
is already buried on the page.  It raises an interesting issue,
one I hope to say more about in the future once I’ve thought a bit more, but I feel like talking it out a bit now.

Ernest first repeats a point he has made many times: “I oppose
copyright infringement via filesharing services and council against
it.”  The lawsuits are a legitimate piece of any voluntary
licensing, market-based system, and penalties must be higher than the
actual harm in order to act as a deterrent.

But he then states that the music industry is in part responsible for
file-sharing: “The RIAA is partially at fault for making the original
Napster so
attractive because there were no real legitimate avenues to meet
customer’s wants…. [A]nyone could have predicted that without
legitimate avenues to download
music, more people would use illegitimate avenues. This is not
rationalization, not justification, merely acknowledging the facts.”

There’s a deeper point there, beyond allocating fault. 
Undeniably, Napster and file-sharing generally have put pressure on the
music industry to license legitimate online services, driving the
competition and improvements in services we’re only starting to see
now.  In pushing along this competition and in particular by pushing
prices lower, one could argue that this leakage in the copyright system
has helped check the deadweight loss caused by the monopoly
grant.  One cannot prove the counterfactual – who knows what would
have happened without Napster.  Regardless, we can recognize the
constructive role file-sharing has played.

With respect to this constructive role, it’s also worth setting it
within the context of a broader viewpoint about copyright: a leaky
copyright can be a good copyright.  That’s not just the case in
file-sharing.  It’s a crucial aspect of fair use.
Allowing copying and copying technologies ultimately can help create
new markets for copyrighted works, provide people with greater access,
more flexibility and more enjoyment in how they use copyrighted works,
and in total improve social welfare.  If the screws of copyright were
tighter, if it did not leak in this way, we wouldn’t realize this
flood of benefits from various copying technologies.

But turning back to file-sharing specifically: can we reconcile the
constructive role its played with Ernest’s first point?  That
is, can we a) acknowledge this constructive role while b) opposing
widespread infringing file-sharing.  A reconciliation could start
by noting that the (a) is descriptive of the entire system, while (b)
relates to the message we project to individual file-sharers.  It
may be a good thing that their activity is leading to more features and
lower prices in legitimate services, but they cannot use that as a
basis for justifying their own behavior.  Justifying it in this
way would form a seemingly boundless basis for infringement, leaving no
clear legitimacy for lawsuits in any context – at what point do prices
and features become good enough that infringement would no longer be
justifiable? and how would that point be determined in a non-arbitrary
way? (Ernest made this argument in a different way many months ago.)

This separation between (a) and (b) is imperfect.  Underlying (B)
is an assessment that the constructive role played by
file-sharing is ultimately countered by many ill-effects.  Perhaps
a part of the reconcilition is a sense that, whatever may have been the
meritorious effects of file-sharing during Napster’s birth, now
competition in legitimate services can become good enough that it’s
time to call off the dogs.