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Court Protects 'Attention Rights' of Media Companies
October 8, 2006

WASHINGTON, DC--In a closely watched proceeding, DC District Court Judge Natalia Wimbley ruled Friday in favor of claims by a coalition of media companies to rights to the 'attention' of consumers. "This ruling is crucial to the continued vitality of American art and culture," explains RIAA President-elect Richard Mound. "Recognition of attention rights goes a long way to guaranteeing that artists and musicians will have access to sustainable revenue streams."

The case, known as 'In Re the Sony Music catalog,' involves a request by a number of major media companies and industry associations that the courts recognize a relatively new legal doctrine extending traditional copyright protection by granting copyright owners limited rights to demand that consumers watch or listen to their intellectual property. "Digital technologies have undermined the ability of simple copyright to secure reasonable pay for artists," explains RIAA's Mound. "Attention rights will restore the balance by giving the advertising model a firm legal foundation. With attention rights, companies will be able to guarantee advertisers a robust and predictable audience."

Though Judge Wimbley stayed enforcement of her ruling pending appeal, the decision appears to grant companies an enforceable legal right to require consumers to pay a "reasonable share of attention relative to the property consumed." In practice, record companies could, under the ruling, require that consumers listen to a minute of ads for every three minutes of music. Failure to listen to ads, and attempts to circumvent or delete advertising, would receive punishment commensurate with that ordered under the Copyright Act and the Digital Millennium Copyright Act, or DMCA.

Critics of the decision suggest that such 'attention rights' would be even less practical to enforce than copyright. "The weakness of copyright today is the weakness of rights-management technologies," explains Professor Jimmy Sprig of Stanford Law School. "Do they really expect some sort of 'attention-rights management' technology to work any better? Do they really expect, practically, to outlaw the mute button as a circumvention measure?"

At least one company, though, has plans to market just such an 'attention-rights management' system. GE Surveillance Solutions, a subsidiary of the General Electric Corporation, demonstrated 'Iful' last month, a "passive, anonymous intellectual property consumption monitor" that, integrated into speakers and displays, uses infrared monitoring technologies to determine the "gaze-orientation" of consumers within its perimeter and to measure "consumer attention" through "progressive, comparative analyses of dynamic cranial heat topographies."

"Most of the critics have been squawking about how impractical these 'rights' may be," notes June Myrmidon, Executive Director of The Michigan Artists Collective. "But they seem to me to actually have more traction in the real world that copyright does. Copies are digital, ephemeral. They're hard to keep track of; they float around in the ether. People's heads don't. I'd much rather bet my cash flow on my ability to monitor heads as a proxy for 'attention' than on my ability to monitor digital copies."

A hearing before the Appellate Court has been scheduled for early next year.

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