It has been a mixed week for iTunes. Earlier this week it was reported that the site has hit 3 billion downloads, and it is now the 3rd largest music retailer in the United States, ahead of the likes of Amazon. But now the BBC reports on a suit initiated by rapper Eminem against Apple for copyright infringement, alleging that the company makes his songs available to the public through iTunes without his permission.
If the case is not settled out of court, this could prove to be a landmark litigation. Music publishing and distribution agreements are famously complex legal matter, filled with tortuous clauses that try to foresee any eventuality. For average artists, the agreements involve a record label (nowadays likely to be a subsidiary of a large media conglomerate), the publishers and the distributors and retailers. Digital retailers like Apple have existing agreements with publishers in which they are licensed to distribute the work through iTunes.
The problem in this case seems to be that Eminem operates outside of the normal channels. He still releases his records (or more accurately, released) through an independent record label called Eight Mile Style. In the analogue economy of bricks, mortar and limited shelve space, such small labels need the complex distribution chains available to the corporations, so they will usually have an agreement with a publisher or distributor in order to get their product to the stores; in this particular case Eight Mile Style has a distribution agreement with Universal Music. However, in the digital realm of the long tail, such arrangements are not required because popular artists like Eminem can effectively cut out the middle person and deal directly with the retailer. In their complaint, the plaintiffs argue that Apple currently sells the music based on their existing agreement with Universal, but that they have never allowed Universal to licence their works to Apple. This is an extremely interesting claim, I’m curious to read the current publishing agreement between Eight Mile Style and Universal to see if this is correct.
This could have huge repercussions throughout the industry, as it would be possible for artists to obtain more per download.