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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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