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Apples
and . . . Apples
A fascinating drama took place over the last few weeks
in a London courtroom, as Apple Corps, Ltd., which controls
most of the Beatles’ assets, took on Apple Computers, which
controls most of the world’s online sales of downloaded music
through its iTunes store.
Apple Corps, Ltd. was started by the Beatles in 1968 to record
and distribute records; their own, and those of other artists
like James Taylor, Ravi Shankar and the Modern Jazz Quartet.
Apple Computers was started by Steve Jobs in 1976, and soon
after was sued by Apple Corps for trademark infringement.
This lawsuit settled in 1981, with Apple Computers paying
Apple Corps around $80,000 and agreeing to stay out of the
music business.
In the mid ’80s Apple Computers added a chip from the synthesizer
manufacturer Ensoniq to its Apple II computers, giving the
machines the capability of recording and generating audio
signals. Apple Corps sued again, and in 1991 Apple Computers
forked over $26 million and a second settlement agreement
was executed that provided that Apple Computers would be allowed
to sell “goods and services . . . used to reproduce, run,
play or otherwise deliver such content,” but that Apple Computers
was barred from packaging or selling music via any physical
media.
Why the Apple Corps team didn’t see this one coming in 1991
we’ll never know. Apple Computers started the iTunes store,
and are now claiming that what they are selling is music in
a non-physical media. And that is the question before
the court in London right now: What is a downloadable digital
music file? Is it a thing? A physical thing? Bits and bytes?
Sorry to get all metaphysical on you, but it is a great question.
If digital song-files are physical things, Apple Computers
is in stark violation of the 1991 agreement, and so what happens
to iTunes? Does Apple Corps get all of the iTunes profits?
Does Apple Corps get the iTunes store itself? And if that
happens, where does the iPod end up, as its success is inextricably
intertwined with its seamless interoperability with the iTunes
store?
And then on the other hand, if the court rules that a download
is not a physical thing, what impact will that have
on the mandatory payment (in the United States and most of
the world) of “mechanical royalties” to songwriters for the
manufacture of “phonorecords” with their songs on them, where
the term “phonorecord” is defined in the Copyright Act as
a “material object”? Songwriters no longer get paid for downloads?
We’re talking millions and millions of dollars and the livelihood
of almost every professional songwriter out there. Yeow!
Another thing that came out last week during the trial was
this: Neal Aspinall—John Lennon’s boyhood friend, former road
manager of the Beatles, and now Apple Corps’ managing director—testified
on the witness stand that all of the Beatles recordings are
currently being remastered in anticipation of their release
for digital download.
For those of you Luddites out there, the Beatles catalog has
not yet been released by anyone legitimate for digital downloading.
This has been a gaping hole in the download world, the musical
equivalent of going to a Yankees game where Derek Jeter is
sitting it out. So far, the only way to have “Hey Bulldog”
or “Revolution #9” on your iPod or your computer was to rip
the songs off of your CDs yourself, or to go get them from
the illegal P2P sites—or perhaps those maybe-legal-maybe-not
Russian sites like AllofMP3.com.
The reasons why this is so are elusive, but for sure one reason
is that Apple Corps was not about to enter into a licensing-and-distribution
deal with Apple Computers, at least not until the issues in
this lawsuit are straightened out. Maybe Apple Corps is concerned
about the sanctity of “the album” as a complete work, but
(a) that’s nonsense and (b) Apple Corps could just specify
that only complete albums could be purchased for download
and it would be done.
In any event, it looks like Apple Corps is prepping its catalog
for the new millennium, and once this lawsuit is resolved
(which should be any day now) you should expect the entire
Beatles catalog, along with everything else that was originally
released on Apple, to be soon available online and legally,
for $.99 a song.
That’s a good thing for most people. I am a little concerned,
however, about those compulsive maniacal Beatles fanatics,
you know, those guys who buy everything Beatles-related (even
Linda’s solo record)—the musical equivalent of Trekkies. Neil
Aspinall did say on the stand that the entire catalog was
being remastered, which means the sound of the digital
downloads will be a little different that the originals.
New versions of the entire Beatles catalog!!!
I have to have them!!! I need more!!! My
collection is incomplete!!! It’s never enough!!!!
—Paul
Rapp
Paul
C. Rapp is an intellectual-property lawyer with offices in
Albany and Housatonic, Mass. He teaches art-and-entertainment
law at Albany Law School, and regularly appears as part of
the Copyright Forum on WAMC-FM’s Vox Pop program. Contact
info can be found at www.paulrapp.com.
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