IASPM – Liverpool

First of all sorry for not posting a lot over the past week or so. I have been very busy preparing to go to England later this week. As I have blogged earlier, next week I am presenting my paper 'The Evolution of Culture: Is Political Music Still Being Heard?' at the International Association for the Study of Popular Music's Conference in Liverpool.

 

I hope to be posting from the conference to tell you about the great presentations I will be seeing – [tonight's post is a 'mobile blog' and I am in part testing out how my webmail posts are going to look (there is some limitation to the formatting I can use... but otherwise hopefully it should be okay)].

 

There are some fantastic papers being presented and it is very hard to know what to attend. You can check out the program yourself here.

 

Here's a list of some that look interesting to me:

 

Australian

Baker: PANEL: Australia's 'Cradle of Rock': Community, music and the museum that never was

Giuffre: Mediating the musical experience: the role of the Australian music media

Homan: PANEL--'All you can do is step back in time': the politics of historical narratives of Australian popular music

Lambert: The Online Post-Rave Commons: Peer production and the production of offline social spaces for the Australian Psytrance Scene

 

Technology

Avdeeff: iPod Culture:Issues of Sociability and Democratisation in the Musical Experience

Collins: "Get your geek on: What computer science methods can offer musicologists"

Harkins: The Sampler as Compositional Tool

Kirton: Technology and the Field of Popular Music Production

Maloy: "Stayin' Alive in Da Club": The Illegality and Hyperreality of Mashups

 

Industry

Letts: Who Sells Out?: Petra Haden in the Age of Mechanical Reproduction

Sledmere: The struggle over talent in popular music

Stahl: Indentured Servants, Rich Whiners or Avatars of Private-Sector Democracy? Domination in the Recording Industry Examined Through the Critical Theory of Contract

Grossi: Popular music from the perspective of the fans

D'Amato: Money for what? An exploration in music crowdfunding or "P2P finance"

Rogers: Burning Out, Breaking Up, Fading Away: Musicians, Industry and Failure

 

Protest

Fairley: Away with protest song!

LeBlanc: "Dare To Be Free": The Dixie Chicks' Existential Conversion

Park: War, Gender and the Popular Song –with a focus on the Military Popular Song under the Total Mobilization System

Wheeler: PANEL: Sounds and Noise from the Edges--F*** the U.S.A.: The New Cosmopolitan Class and the Protest of Place

Furini: "The Overdub Tampering Committee and Plunderphonics: popular music and resistance in the postmodern age"

 

Hip Hop

Harbord: Is hip-hop the new minstrelsy?

Howard: From ghetto laboratory to the technosphere

Lutzu: Poietic processes in sample-based hip-hop

 

Other

Biddle: Between musicology and museology: archives, repertories and the logic of the musical fetish

Zahova: Why Do Words Have Songs?

Lebrun: Popular music festivals, 'alternative' identities and audience participation

Hill:Hippies, Inc.: San Francisco and the Commodification of the 60s

Shumway: The San Francisco Sound: the Politics and Aesthetics of Place

Webb: Infected by the seed of post-punk bohemia: Nick Cave and the milieu culture of early 1980s London

Butler: The Reception of the Use of Technology in the work of Jimi Hendrix

 

 

I doubt very much I will be able to see all of these, but I will try. Come along if you are in England/Liverpool between 13^th and 17^th July 2009.

 

Song of the Moment: Fifty in Five

UPDATED: I sit here and listen to the last song on the new Hilltop Hoods CD – Fifty in Five off the album State of the Art – and I am literally speechless.

Listen to this song. Read the lyrics.

This is a narrative about humanity. My interpretation of the title is that it reflects on the last fifty years of world events in five minutes and it does so with absolute style and precision.

I was listening to it repeatedly last night knowing that I wanted to write about it and yet hours later still feel that I cannot find the words to do it justice. I had thought to write up something about all of the individual events that the lyrics cover but what I really want to write about is the emotion that this song brings out in me. This song makes me feel sad, angry, disappointed and worried. The lack of repetition and the lack of chorus are indicative of the fact that this song is not an anthem. It is not there to make us want to do something. It does not try to bring people together to make a positive change. It is the epitome of sadness and the confronting, bitter truth.

The sheer volume of lyrics is overwhelming. I have written shorter essays than this. They cover an enormous range of topics and events with an international perspective that shows the wide spread damage and devastation of the corruption and decay of modern society. I hesitate to give examples because the nature of the lyrics are to mention so much in such a short space that not one thing is given priority over another; it is a list. I wonder if the composers had to restrict themselves and had to leave things out. Ironically we might applaud the level of detail and quantity of information they have included and yet the song itself is written to speak of the sheer dissatisfaction of how so much wrong has occurred in just fifty years.

It mentions the future but only in context and connection with the past. It is not at all hope for what may change or what may come next. It tells us how we have set ourselves up to fail. How stupidity, ignorance, lack of leadership and ourselves are to blame for what comes next: ‘the generation next will degenerate and die’.

In sections the song talks about the distractions that prevent us from seeing the destruction that is before us. Things like the Macerena, superman, chicken dance and botox. The song reflects on the youth – women getting fake tits and young kids in detox. My interpretation is that references to technology including the internet and 3g cellular phones are also negative statements about distractions and how we have the technology to communicate and yet we just don’t in the way that matters. The reference to how ‘mp3s saw the death of an industry’ reflects on how the loss of the music industry renders poets/musicians incapable of helping us to make sense of the world and to be the agents of social change that we so desperately need.

Towards the end, the lyrics move from merely being a list to using cultural references to characterise the distraction of society. It warps into text that includes numerous references to horror movie titles and the names of drugs – aspects of our culture that reflect the sentiments of the song: the terror and dependence that we suffer. At the height of the passion, questions are asked - a rhetorical question: 'what happened to the love?' and another that asks 'what happened to the cubs?' [they were fed to the wolves]. Questioning the loss of the positive motivations of the 1960's and the focus on the needs of children, brings an element of uncertainty to the lyrics when concepts rather than events are considered.

The musicality of the song is well worth mentioning too.

As with most hip hop, the lyrics flow without a break but here the lack of pauses and the perpetual motion illustrate how these events have taken place one after the other without room for reflection, without the chance to stop and take account of what’s happening. The flood of events and the flood of lyrics parallel a world that does not have a chance to take its breath.

At one stage the lead singer sounds like he is gritting or clenching his teeth in frustration or disgust. He is easily heard above the music but as the song builds he becomes louder, more predominant and has more and more angst. The incomprehensible sweet whispering layered above the tale reminds me of the sugar coating of the media but perhaps is really meant to be the spoonful of sugar to be taken with the medicine.

The music has moments that seem regular – when it is not overwhelming and provides a solid background to the text. At others times there are distinct samples and the integration of instruments and styles – a sample of Martin Luther King (the loss of hope), John F Kennedy (a small, barely audible sample that depicts that we can no longer hear or remember what he said), groaning/moaning (pain), helicopters, rifles, a bomb (war), a brass line from an 'olden days' song at the same time as the discussion of right wing overlords and refugees, the building of tension and urgency by the use of piano chords and the interposing of another voice which yells out key words (adding emphasis and trying to get our attention).

Indeed the dynamics of the song depend heavily on the change of colours in the underlying score with little change in the pitch and speed of the vocalist and drums that have a consistent tempo. The song does not noticeably speed up but rather the consistency illustrates the persistence and unrelenting nature of the chaos that we face.

When discussing the ozone layer and the how the earth is cooking itself the music becomes harsh and percussive which reflects the pain, discomfort and discord of the global suicide that is taking place.

Finally, at key points the music goes quiet with a small number of instruments playing a thin or light melody in the background. This gives the lyrics the space to make some points stand out from others: ‘A blowjob brought about the fall of a dynasty, and Mp3s saw the fall of an industry... Rich bleeding the kind, the blind leading the blind and history competes, no competing with time... The government and church on which we try to rely, both rob us til it hurts chasing lie after lie.’

The song finishes with resignation: ‘Can you believe what we have become? As we walk into the sun.’ The phrasing here speaks of how things are going to get worse; disgust and disbelief; and makes the statement that the end is here. This part is sung by a different vocalist which completely removes it from the body of the song.

The music at the end of the song is a solo piano - this contrasts dramatically with the thick and heavy instruments that come before it. The sound is much more melodic and has a sense of simplicity about it. The music in this section is far less challenging - more mainstream and verging on romantic in nature - perhaps highlighting the idea that this is the part of the message that everyone should hear or that we over romanticise the idea that humanity is good or that it will survive despite it all.

The contrast between the vocals and music in the last section of the song compared with what has occurred earlier depict how removed we are from our own history - how we look on these events as though they are someone elses responsibility and someone elses past. The very last vocal sound is a breath - the last gasp of air or a sigh - perhaps this the death of humanity or at least an expression of disappointment.

This is, at the same time, the most brilliant and yet most awful political song I have heard. I became very emotional after I listened to it tonight. I HATE THIS.

FUCK.

________

I was having trouble working out the origin of the brass line that I refer to above as the 'olden days' song as well as the whispering voice that is layered over the top.

Given the frequency of the whispering voice it is likely that this is the sample from a 1960s song called 2010 referred to in the following articles - see: GroopieBlog, Hilltop Hoods Preview State of the Art Tracks (6 April 2009) <http://www.pagesonline.it/groupieblog/archives/1880> at 19 June 2009 & all aussie hip hop blog, State of the Art Preview (10 June 2009) <http://allaussiehiphop.wordpress.com/2009/06/10/state-of-the-art-album-preview/> at 19 June 2009. There are 27 songs listed with this title on iTunes - none of these appear to be the original all having release dates after 1990.

The brass line is also an important sample. While I realise the parameters of the song suggest that only samples from the past 50 years are likely to be included this seems to be a type of sound much older than the 1960s - it has a serenade feel to it. It verges on a type of 'national anthem' and to me feels more like something from the 1920s or 1950s.

These are important samples to this song and I would like to trace their origins - much like the need for this song to trace society's past to reach a conclusion. The architecture of the internet and the lack of copyright registrations prevent me from knowing with certainty where they have come from. While I do not, at this point, wish to delve into a detailed discussion of sampling and copyright law (even though I could!) it is worth noting these as examples of how this form of culture can take elements of the past and say something new with them, provided the regulatory forces at work enable that to happen.

I was also thinking about the place of this song on the CD. It is the last track and my first thought was that this was because it is the most serious of the songs - it is different from the content of the other tracks at least in its overt nature. On a more artistic level perhaps it is located at the end of the CD because this is the last thing, we as a society, want to hear or pay attention to - or because time is running out and our responses will undoubtedly be at the last minute.

I also took time to reflect on the fact that it is at the end of the CD from a tangible format perspective. Consider for a moment the nature of pay per song download stores and how unlikely it is that those that consume music on a song by song basis will ever hear this. Even the disconnection from the printed lyrics in the digital age presents a major hurdle to the consumption of the message of this song - lyric sites are on the web but their accuracy can sometimes be questionable.

A major label would definately hesitate to release this as a single but hopefully Golden Era Records don't. The loss of the tangible format presents may complications including the fact that things we need to hear cannot be packaged with the things we choose to hear - so many young kids will never hear this song - the world and the industry have indeed changed: we need to make it for the better.

[Imagine how long it took to compose this - the hard work and the dedication.... It is so rare to have a contemporary song so rich in detail; artistic and powerful... Will this make it to the mainstream media?...Imagine the beauty of the mashup that could be done with the video to this song... I could go on forever about this track but I have to stop here... for now...]

What’s the Deal with Record Labels?

Many of us sit back and wonder why it is that record labels act the way they do. I have written earlier about how the corporations law prevents them from making decisions based on morals and forces them to consider profits above all else. But what are the impacts for musicians and the music?

The Standard Deal
Typically record labels offer ‘standard’ deals to artists (especially the unknown ones) that have unfair and onerous conditions. Many artists, with the exception of those with a very savy manager or significant popularity, walk into a record label’s office prepared to accept any terms they offer. The artist believes that without their support they simply cannot create but the short term gains most often outweigh the long term benefits. Indeed it is not until sometime later, once the contract is in full swing, that they can really assess their needs compared to what they are being offered and by then it is generally too late.

All but the most successful artists are forced to work under terms which are financially unsustainable and grossly unfair, sometimes without access to resources that would help them to produce better music and without the ability to renegotiate.

With the exception of those that have an agreement that would be considered in law to be ‘unconscionable’, there is little that can be done but to find ways around the conditions that have been imposed.

Some artists seek the advice of organisations such as the Musicians Union but the contracts which already underfoot, are strict in their terms and there is little that can be done to negotiate a better deal.

Artists under standard contracts are left with little option but to rely on alternative forms of revenue – this has typically been in the form of concert ticket sales and merchandising which until recently were not part of recording contracts.

Those lucky enough to have a short term contract may have the opportunity to reconsider their options and look around for another label but this process itself is stressful with the old label looking over their shoulder.

For those artists that do have some success and are able to prove their worth, the length of the deal which often has clauses that enable the label to keep extending the current arrangements (option clauses) means they are trapped and must continue to work under the same conditions regardless of whether their needs or abilities have changed.

For others, those that are not as successful, the contracts may still be extended despite the fact that the label has no intention of supporting them in the future and yet they are not able to sign with another label or go out on their own as an independent.

Furthermore, even the most successful artists are forced to make ‘artistic compromises’ – in short this has meant that the labels can refuse to release music that they consider unworthy of financial investment or unlikely to be popular with the masses. For political music this is very problematic with songs deemed too controversial unlikely to be released unless they have an associated marketing angle.

One artist famous for a dispute with his record label is Prince/The Artist Formerly Known As Prince. Prince was in dispute with his record label, Warner Brothers, who had trademarked his name and owned all associated rights to the music marketed under that name. I remember well the jokes that many in the industry made at the time asking why he would pick the Love Symbol and such a silly name. The reason was that his record label could hold him to the contract if he used the name 'Prince'. By changing his name in this way he gained the benefit of both avoiding the terms of the contract he was in while negotiations were taking place and continuing to work based on the reputation he had already built.

However for most artists the results of ‘corporate patronage and indentured servitude’ are catastrophic. They are unable to plan their lives as they do not know from one day to the next what will be happening. They have terms that are financially unsustainable and demanding commitments that they cannot meet. Some struggle to work with the little that they have and others elect non performance. Pure and complete non performance of a contract is a breach of the agreement but by sabotaging themselves - writing poor songs, being unreliable, difficult to work with and generally uncooperative - some artists may be released from their deals. Others are retained, perhaps out of spite, and all lose whatever reputation they have developed to that point. They suffer career paralysis and eventually their popularity dies.

In all circumstances record labels control the recording copyrights and what was done in the past continues to be the property of the record label so the labels continue to reap the profits despite the ongoing frustration of the artist.

Enter the Internet
Up until the last decade this was the fate of the majority of musicians. However the internet has transformed the options for artists. They are much more likely to be able succeed without the support of major labels, for the most part superstar status still depends on it, but many more are able to connect with their fans and give them a reason to buy their music without having to enter into deals that are uncompromising and unfair. Those that were signed to a major label in the past, Nine Inch Nails and Trent Reznor being one such example, are refusing to get back into bed with the record labels knowing that they have the reputation, intelligence and experience which enables them to go forward without the help of others.

Indeed those that are signed to major labels can take advantage of this new form of communication. One recent example of this is DJ Danger Mouse who was prevented from releasing his new album because of a dispute with his record label. Instead he released a CD case with an extensive booklet of photographs and a blank disk, telling consumers to ‘Use It As You Will’ – implying that as the music was available on file sharing networks that they should feel free to download and burn a copy.

Some have stated that the digital environment creates a ‘competition issue’. Those that are familiar with trade practices law will know that many countries attempt to regulate markets to ensure that they do not become too concentrated – in Australia it is the Trade Practices Act 1974 (Cth) while in the USA it is the Sherman Act (1890). (Kazaa unsuccessfully argued anti trust grounds in an early MGM v Grokster decision [1]).

The internet means that record labels are in competition with the entire world. It has the potential to create a much more open marketplace where there is far less control and concentration. While on the one hand this alters the power of record labels to dictate the terms, it also dissipates the potential for artists to penetrate the global market place and for some forms of music, particularly the political, this may have associated consequences.

The New Deal
Record labels have not responded well to the digital environment and the competition that they are now faced with. The tendency has been to do as much as possible to constrict the competition – lawsuits against emerging technology are just one part of this equation – the move to 360 degree contracts where they control every aspect of a musicians career and can make money from all parts of their business has been another.

But not all labels are taking that approach. There are number of record labels, such as Magnatune (‘We’re Not Evil’), that are attempting to work with artists rather than exploit them. This has typically meant less financial investment but greater understanding for the uniqueness of some artists and the need to ensure that they are comfortable with their contractual arrangements. However many artists are scared and do not know enough about these labels to make the change, perhaps more time will help them to see that they do not operate in the same way as the record labels of the past.

What Does it Mean for the Music?
Music is and has always been intangible. It is non rivalrous meaning that it can be duplicated without loss of quality and in infinite quantity. The artificial scarcity that was created by the reduction to material form (the CD) has now largely been replaced with unfettered and cheap supply. It is only natural that music should want to be free, to explore and communicate with as many people as it wants, and yet it remains in an environment where it can be difficult to assess who will permit this and who won’t.

Some, those of the old school, get angry with those that seek to enable the music to live out its intangibility. Some seek to enable the intangibility but fail to consider the implications of the lack of financial support that is needed to sustain a professional sector of creators. Others seek the mid point. They know that there needs to be more freedom and are willing to give it but also seek to create an environment in which the music is able to have some support without being dominated and controlled to the point where it can no longer reach its true potential. Those in this mid ground advocate a collective licensing regime. Whilst requiring detailed planning and foresight it is nonetheless achievable and would make an enourmous difference to the choices that are currently in place.

A collective licensing regime has been advocated by the likes of Netanel [2], Fisher [3], Lessig [4], the Electronic Frontiers Foundation and The Songwriters Association of Canada. Experiments have taken place in countries such as Canada and China (Fisher) and in the USA recent steps have been taken to trial different versions in colleges as a means to reduce illegal file sharing by students (Choruss).

While there is a way to go yet, these developments are both positive and essential. While some forms of music, the emotive and purely entertaining forms, will be produced in most conditions due to their social function, they can be produced to a higher standard under better conditions. Other forms of music, such as political music, require greater attention. This form of music in particular has an important social function but under negative community conditions – capitalism, closed or structurally deterministic architecture, neoclassicist copyright law and prohibitive social norms – it cannot achieve its potential as an agent for social change.

If the major record labels are going to have a place in musicians' lives in the future, they need to act now because they are running out of time. It is impossible to unscramble an egg - things will never return to the way they were before. It is time the labels realised this and got on with helping musicians to achieve their goals.

Further Reading

[1] Metro-Goldwyn-Mayer Studios Inc., et al v Grokster Ltd et al 269 F.Supp. 2d 1213; 2003 U.S. Dist. LEXIS 11329; Copy. L. Rep (CCH) P28,634; 2003-2 Trade Cas. (CCH) P74,081

[2] N W Netanel, ‘Impose a Noncommerical Use Levy to Allow Free P2P File-Swapping and Remixing’ (2003-2004) Harvard Journal of Law & Technology, 1-84

[3] William W. Fisher III, Promises to Keep (2004)

[4] Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004) 301

ArsTechnica, Canadian artists' new/old plan: $5 to share music legally (24 March 2009) <http://arstechnica.com/tech-policy/news/2009/03/canadian-songwriters-plan-5-to-share-music-legally.ars> at 29 March 2009

Electronic Frontiers Foundation, File Sharing: It’s Music to our Ears, Making p2p Pay Artists (2004) <http://www.eff.org/share/compensation.php> at 12 April 2006

EFF Deeplinks, More on Choruss, Pro and Con (20 March 2009) <http://www.eff.org/deeplinks/2009/03/more-choruss-pro-and-con> at 11 April 2009

EFF Deeplinks, Danger Mouse Releases a Blank CD-R (18 May 2009) <http://www.eff.org/deeplinks/2009/05/danger-mouse-inducem> at 29 May 2009

Future of Music Coalition, Major Label Contract Clause Critique (2001) <http://www.futureofmusic.org/contractcrit.cfm> at 16 June 2009

OpenContentAustraliaResearchReview, Capitalism and the Alcoholism of the Music Industry (18 May 2009) <http://ocarr.blogspot.com/2009/05/capitalism-and-alcoholism-of-music.html> at 16 June 2009

Open Content Australia, Year in Review: Recording Contracts (18 December 2008) <http://ocarr.blogspot.com/2008/12/year-in-review-recording-contracts.html > at 16 June 2009

TechDirt, My Keynote At The (RIAA Sponsored) Leadership Music Digital Summit (30 April 2009) <http://www.techdirt.com/articles/20090422/0407024607.shtml> at 3 May 2009

TechDirt, U2 Manager: Free Is The Enemy Of Good; And It's Moral To Protect Old Business Models (29 May 2009) <http://www.techdirt.com/articles/20090528/1919455049.shtml> at 31 May 2009

Testimony of William W. Fisher III before theSubcommittee on 21st Century Competitiveness Committee on Education and the WorkforceHearing on: The Internet and the College Campus: How the Entertainment Industry and Higher Education are Working to Combat Illegal Piracy (26 September 2006) <http://www.house.gov/ed_workforce/hearings/109th/21st/piracy092606/fisher.htm> at 17 October 2006

The Dues, “Record Earning” Deemed Oxymoronic (Issue 9 Vol 1) March 2006 <http://www.musicians.asn.au/ezine/archives/issue9/page2.html> at 16 June 2009

The Dues, How to Make it To The Top and Still End Up in Debt (Issue 2 Vol 1) <http://www.musicians.asn.au/ezine/archives/issue2/> at 16 June 2009

Wikipedia, Prince (musician) (14 June 2009) <http://en.wikipedia.org/wiki/Prince_(musician)> at 16 June 2009

Good Copy Bad Copy<http://www.goodcopybadcopy.net/> at 22 April 2008

Magnatune <http://www.magnatune.com/> at 16 June 2009

Musicians Union of Australia <http://www.musicians.asn.au/union/index.html> at 16 June 2009

Overseeing the Three Strikes Policies

There were some interesting developments in France recently with the Constitutional Council refusing parts of the proposed three strikes legislation. I have written earlier about the growing trend to disconnect users from the internet and some of the implications this is likely to have.

The policy itself is flawed for a number of reasons. One concern is the fact that it prevents people from communicating on a whole range of levels – as we all know internet access is a fundamental component of modern life and has a much greater social function than simply the sharing of music. It is the most open and immediate form of communication available enabling each and every person to communicate with friends, family, their local communities, their interest groups, the government and the world at large. Being disconnected from the internet because of the sharing of culture, from a basic free speech perspective, is an unjustifiable and disproportionate loss of human rights.

Furthermore with respect to the sharing of culture itself, the policy is both counter intuitive and counter productive.

The purpose of culture is to communicate. The underlying aim of entertainment or education is secondary to the broader aim of enabling connections and the exchange of ideas. Disconnecting users undermines the very intent of producing culture in the first place. Simply put, the sharing of culture is a natural and inherent component of its creation – most (but not all) artists recognise the importance of this but corporations typically do not.

In addition, these policies are counterproductive. Reactionary punishment for something that has occurred in the past is only of benefit when it outweighs the costs. While cutting a user off the internet may act as a deterrent to that person and perhaps others in the future, the more likely result is one in which alternative means of sharing are developed.

Disconnecting one user from the internet may simply result in another household member needing to have the internet connection in their name. It remains impossible to police who in that household is using the internet at a particular moment in time and as such it is unlikely to prevent the offender from sharing culture again in the future. The ever increasing development of digital devices with vast storage capacity means that the sharing of culture can take place on or off the internet and disconnections are more likely to make this harder to track and monetise than stop it from happening altogether.

The bigger problem and one that the music industry appears to either be ignoring or ignorant of, is that this policy actually stops users from consuming culture in ‘legitimate ways’. Not having internet access at all prevents users from accessing iTunes just as much as it stops them from using BitTorrent or Limewire. The collateral damage of these policies is therefore greater than what their implementation can achieve.

Countries that consider disconnection as the most appropriate sanction include France, New Zealand, Taiwan and South Korea. While France and New Zealand are both in the process of reworking their legislation, Taiwan has passed laws which appear to introduce a non mandatory disconnection regime. South Korea is the only country with a mandatory policy in place at present. In Ireland one ISP has agreed to implement a three strikes policy that includes disconnections, as part of a settlement agreement for a secondary copyright liability claim. Steps to introduce the policy nationwide have not been successful to date. It has also been reported that Italy is considering the introduction of a three strikes policy which has the ultimate penalty of disconnection.

In other countries, alternative penalties are being considered. The recording industry in the United States is in the process of trying to get ISPs to voluntarily embrace the policy but without disconnections. Some six month after the initial announcement not one ISP has agreed to implement the process. Similar moves are underfoot in the UK with increasing pressure on the government to introduce the policy, with the slow down of internet connections rather than disconnection being the ultimate sanction. Early next week the final Digital Britain Report is expected to recommend the introduction of this policy.

In all of these circumstances there is a common concern regarding the lack of judicial oversight. It is imperative that we ask the questions: why do we have judges and why is it okay that they be removed from this process?

Speaking broadly about legal systems in general, regardless of whether they are adversarial or inquisitorial, judges take a particular place in the system of democracy. Their independence from government and institutions (including corporations) is fundamental to their role. They are adjudicators that decide disputes based on evidence according to the laws which (in theory?) reflect the standards of the community. Largely only accountable through the media or on appeals, those that are placed in this position of authority must have extensive training in their field(s). In some areas of law strict liability is imposed by the legislature which removes their discretion however in many other areas they must have the capacity to make a qualitative determination of often complex and detailed events. The reasoning for their decisions forms a basis of knowledge on which others can act in the future to exercise their rights.

The desire of the content industry to remove the judiciary from the determination of copyright disputes is primarily born from concerns about efficiency and cost. In effect the three strikes policies seek to create a strict liability offence for the sharing of culture – where the presumption is of guilt and the offence proved by default rather than the more typical approach of innocence as a presumption. Much like a speeding ticket, the desire is to place the liability on the holder of the internet account without the opportunity for it to be rebutted. But here there is often more than one driver, there could be many potential users of an account and without the opportunity to defend an accusation, there remains implicit potential for injustice. Indeed, the name 'Graduated Response' appears to be a misnomer - there is no real graduation - there are 2 warnings and then the ultimate price is paid.

The costs of justice are well known. As has been well evidenced and a matter of much contention in the mass lawsuit campaign against individual users, the average person simply does not have the financial resources to defend themselves against civil litigation by major record labels - instead being forced to settle disputes regardless of whether they were personally liable. While this system was excruciatingly imperfect it nonetheless allowed some opportunity for redress.

The recording industry incurred costs too. While those that were forced to settle most likely covered some of the costs involved in their investigation, the initiation of John/Jane Doe lawsuits, the sending out of letters of demand and the running costs of the settlement payment centre, these expenses nonetheless existed and detracted from the viability of the initiative. It seems there was also momentum and assistance building for those seeking to defend these actions and this would have added significantly to the costs of the program, only being offset by the potential for massive damages payouts in the event that the lawsuit was successful.

The other aspect to the judicial system is time. There is often a significant delay between the commencement of litigation and the time when a matter is heard. Furthermore, there are often delays in the hearing of cases with some taking a number of months and there is an extensive delay in the hearing of appeals which are more likely in emerging areas of law or contention.

The aim of the three strikes policies are therefore to allow for the quick and inexpensive determination of disputes. Having said that; the French proposal was expected to cost $40 million to implement annually – money that should be in the pockets of artists. But as a society, what price do we place on free speech? Is this the type of human right that should be calculated quickly and cheaply?

Of course the content industry would respond with arguments about ‘theft’ and ‘property’. But as a community are we blind to the inherent implications of these policies? In my view the court system, imperfections and all, is a fundamental aspect of democracy and the oversight of the judiciary is of paramount importance to a legislative system corrupted by capitalism. Every bureaucracy makes mistakes and no matter what procedures are in place there remains opportunity for human and technological error and there must be a forum to redress complaints. The vulnerable and the weak need these avenues to remain open and we are all in that position when major corporations collude to achieve their profit lines. While the majority of internet connections are in the name of the parents, it is the children that will suffer.

France has seen the need for continued involvement of dispute resolution mechanisms, but so far, is the only country to have done so.

Further Reading

FRANCE
The New York Times, French Council Defangs Plan to Crack Down on Internet Piracy (10 June 2009) <http://www.nytimes.com/2009/06/11/technology/internet/11net.html?_r=1> at 12 June 2009

TechDirt, French Constitutional Council Guts 'Three Strikes' As Unconstitutional (10 June 2009) <http://www.techdirt.com/articles/20090610/1103345185.shtml> at 12 June 2009

The Register, France suspends Three Strikes (10 June 2009) <http://www.theregister.co.uk/2009/06/10/france_three_strikes_hadopi_suspended/> at 12 June 2009

ZeroPaid, France’s Top Court Rules “Three-Strikes” Unconstitutional (10 June 2009) <http://www.zeropaid.com/news/86401/frances-top-court-rules-three-strikes-unconstitutional/> at 12 June 2009

WashingtonPost/The Associated Press, New French law on Internet piracy meets skepticism (21 May 2009) <http://www.washingtonpost.com/wp-dyn/content/article/2009/05/21/AR2009052101770.html> at 29 May 2009

ZeroPaid, French Minister - Three Strikes Law Would See 1000 Disconnections Daily (24 May 2009) <http://www.zeropaid.com/news/86288/french-minister-three-strikes-law-would-see-1000-disconnections-daily/> at 28 May 2009

ZeroPaid, French Arts Community Revolts Against French Three Strikes Legislation (30 April 2009) <http://www.zeropaid.com/news/86130/french-arts-community-revolts-against-french-three-strikes-legislation/> at 3 May 2009

ZeroPaid, French ISPs: 'Three-Strikes' will cost us $40 mill Annually (10 March 2009) <http://www.zeropaid.com/news/10047/French+ISPs%3A+%27Three-Strikes%27+will+Cost+Us+%2440mill+Annually> at 12 March 2009

ITALY
TechDirt, Italian Politicians Look To Push Through French-Style 3 Strikes Law (21 January 2009) <http://www.techdirt.com/articles/20090121/0834043477.shtml> at 24 January 2009

UK
TechDirt, Study Says File Sharers Would Ignore Warning Letters; Recording Industry Gets The Wrong Message (10 June 2009) <http://www.techdirt.com/articles/20090610/0234295184.shtml> at 12 June 2009

ZeroPaid, UK ISP: Idea of Stopping File-Sharing is “Very Naive” (9 June 2009) <http://www.zeropaid.com/news/86388/uk-isp-idea-of-stopping-file-sharing-is-very-naive/> at 12 June 2009

TechDirt, British Government Says No To Three Strikes (5 June 2009) <http://www.techdirt.com/articles/20090604/1019495131.shtml> at 8 June 2009

BBC News, Web pirates placed in 'slow lane' (4 June 2009) <http://news.bbc.co.uk/2/hi/technology/8083866.stm> at 8 June 2009

ZeroPaid, UK Minister Says “Three-Strikes” too Draconian (5 June 2009) <http://www.zeropaid.com/news/86371/uk-minister-says-three-strikes-too-draconian/> at 8 June 2009

ArsTechnica, UK ISPs refuse to play Internet copyright cops (12 May 2009) <http://arstechnica.com/tech-policy/news/2009/05/uk-isps-refuse-to-play-internet-copyright-cops.ars> at 15 May 2009

IRELAND
TechDirt, Irish ISPs Point Out They're Under No Obligation To Follow Three Strikes Policy (17 March 2009) <http://www.techdirt.com/articles/20090315/2011434125.shtml> at 18 March 2009

The Register, Irish ISPs rally against record label anti-piracy threat (17 March 2009) <http://www.theregister.co.uk/2009/03/17/irish_isps_rally_against_irma_threats/> at 18 March 2009

Digital Music News, Irish ISPs Battle Back Against Three-Strikes... (19 March 2009) <http://www.digitalmusicnews.com/stories/031809irish> at 20 March 2009

Billboard.biz, Irish ISPs Reject Labels' 'Three Strikes' Demand (19 March 2009) <http://www.billboard.biz/bbbiz/content_display/industry/e3icd8ec261b0f1e7f730729c488530e3ba> at 20 March 2009

ArsTechnica, Blackout Ireland rallies support against P2P disconnections (5 March 2009) <http://arstechnica.com/tech-policy/news/2009/03/blackout-ireland-rallies-support-against-p2p-disconnections.ars> at 6 March 2009

Slyck, Ireland says Yes, Germany No to 3 Strikes (3 February 2009) <http://www.slyck.com/story1829_Ireland_says_Yes_Germany_No_to_3_Strikes> at 4 February 2009

The Register, Irish ISP Eircom in 'three strikes' file sharer crackdown (3 February 2009) <http://www.theregister.co.uk/2009/02/03/eircom_agrees_to_three_strikes_enforcement/> at 4 February 2009

Digital Music News, Big Precedent: Irish ISP Adopting Three Strikes... (30 January 2009) <http://www.digitalmusicnews.com/stories/012909eircom> at 31 January 2009

TechDirt, Irish ISP Accused Of Copyright Violations Agrees To Implement Three Strikes (29 January 2009) <http://www.techdirt.com/articles/20090128/1855013560.shtml> at 31 January 2009

ZeroPaid, Irish ISP Agrees to Three-Strikes Policy For File-Sharers (29 January 2009) <http://www.zeropaid.com/news/9984/Irish+ISP+Agrees+to+Three-Strikes+Policy+for+File-Sharers> at 31 January 2009

EFF Deeplinks, Irish ISP Agrees to Three Strikes Against Its Customers (28 January 2009) <http://www.eff.org/deeplinks/2009/01/irish-isp-agrees-three-strikes-against-its-users> at 30 January 2009

USA
Digital Music News, France Says No, But What About the US? (11 June 2009) <http://www.digitalmusicnews.com/stories/061009us> at 12 June 2009

Digital Music News, 6 Months, 0 Disconnecting ISPs: RIAA Still Coming Up Short... (4 June 2009) <http://digitalmusicnews.com/stories/06020riaa> at 8 June 2009

TechDirt, Six Months And Still No ISPs Officially Signed Up On The RIAA's Program (4 June 2009) <http://www.techdirt.com/articles/20090604/0137485124.shtml> at 8 June 2009

NEW ZEALAND
Computerworld, Work continues on Copyright Act (4 May 2009) <http://computerworld.co.nz/news.nsf/news/593AE7BB01CE30EBCC2575AB0077BDC2> at 6 May 2009

TechDirt, New Zealand Denies It's Scrapping Copyright Laws (4 May 2009) <http://www.techdirt.com/articles/20090504/0440064740.shtml> at 5 May 2009

National Business Review, Entire Copyright Act to be scrapped (1 May 2009) <http://www.nbr.co.nz/article/entire-copyright-act-be-scrapped-101820> at 3 May 2009

TechDirt, New Zealand Officials To Scrap Copyright Law; Start From Scratch (30 April 2009) <http://www.techdirt.com/articles/20090430/1400034708.shtml> at 3 May 2009

ArsTechnica, "3 strikes" strikes out in NZ as government yanks law (23 March 2009) <http://arstechnica.com/tech-policy/news/2009/03/3-strikes-strikes-out-in-nz-as-government-yanks-law.ars> at 29 March 2009

TechDirt, Musicians In New Zealand Protesting 'Guilt Upon Accusation' Plan (6 January 2009) <http://www.techdirt.com/articles/20090105/1232323289.shtml> at 7 January 2009

SOUTH KOREA
ZeroPaid, South Korea to Become 1st Country with "Three Strikes" for File Sharers? (29 March 2009) <http://www.zeropaid.com/news/85895/south-korea-to-become-1st-country-with-three-strikes-for-file-sharers/> at 30 March 2009

TechDirt, South Korea The Latest To Introduce Three Strikes Plan (11 March 2009) <http://www.techdirt.com/articles/20090311/0213404068.shtml> at 12 March 2009

TAIWAN
ZeroPaid, Taiwan Passes “Three-Strikes” Anti-P2P law (28 April 2009) <http://www.zeropaid.com/news/86072/taiwan-passes-three-strikes-anti-p2p-law/> at 29 April 2009

TechDirt, Taiwan Sorta, But Not Really, Approves Three Strikes Law (28 April 2009) <http://www.techdirt.com/articles/20090427/1843094669.shtml> at 29 April 2009

OTHER
The Register, Billy Bragg: Three-strikes lobbying is 'shameful' (20 May 2009) <http://www.theregister.co.uk/2009/05/20/bragg_three_strikes/> at 22 May 2009

ZeroPaid, U2’s Band Manager Praises France’s “Three-Strikes” Law (8 April 2009) <http://www.zeropaid.com/news/85953/u2s-band-manager-praises-frances-three-strikes-law/> at 11 April 2009

ArsTechnica, Google: Internet disconnection a "disproportionate" penalty (17 March 2009) <http://arstechnica.com/tech-policy/news/2009/03/google-cutting-internet-access-for-p2p-abuse-disproportionate.ars> at 23 March 2009

ArsTechnica, 37% of P2P users say they'll ignore disconnection threats (18 January 2009) <http://arstechnica.com/news.ars/post/20090118-37-of-p2p-users-say-theyll-ignore-disconnection-threats.html> at 21 January 2009

OpenContentAustraliaResearchReview, Graduated Response Update (29 March 2009) <http://ocarr.blogspot.com/2009/03/graduated-response-update.html>at 14 June 2009

OpenContentAustralia, NZ Delays Guilt Upon Accusation (25 February 2009) <http://ocarr.blogspot.com/2009/02/nz-delays-guilt-upon-accusation.html> at 29 March 2009

Digital Music News, Pirate Bay Martyrdom Continues... The Decision Stands (12 June 2009) <http://www.digitalmusicnews.com/stories/061109pirate> at 12 June 2009

The Local, 'Pirate Bay judge not biased': court (8 June 2009) <http://www.thelocal.se/19946/20090608/> at 12 June 2009

ZeroPaid, Court Review Says Pirate Bay Trial Judge Not Biased (8 June 2009) <http://www.zeropaid.com/news/86385/court-review-says-pirate-bay-trial-judge-not-biased/> at 9 June 2009

EFF, RIAA v. The People: Five Years Later - White Paper (September 2008)
<http://www.eff.org/wp/riaa-v-people-years-later> at 14 June 2009

Free Music Archive.

I am a few days from really being back on this space but thought to let you know about the Free Music Archive. This site was started by WFMU, a freeform radio station in the United States.

The latest Creative Commons newsletter advises that the site was launched in April 2009. It hosts tracks available as free downloads using a number of licenses including Creative Commons. Users can download from a catalogue of 8,659 tracks (it was launched with 5,000 songs).

The site looks good but has some way to go in terms of growth and development. Nine thousand tracks is a good start but small compared to other sites such as Jamendo which, at present, hosts some 20,478 albums.

Like Jamendo, the Free Music Archive seeks to embrace new business models. It is intended that links will be provided enabling users to buy the full album and/or giving users the option of tipping an artist by making a deposit to the artists’ PayPal account (from what I can see these are not yet in place). Artist profiles also include tourdates allowing fans to both enjoy their art and support creators/performers by attending concerts.

Another good thing about the site is the album/track descriptions - these are much more detailed than what is found on many other sites including iTunes, eMusic and file sharing networks. The search function allows for key word searching of both the descriptions and the tracks which is a big improvement in terms of the architecture needed to help listeners find political music. One could well imagine the power of combing this design attribute with a much larger catalogue.

This site is in its infancy but is one to watch in the future.Take a look around and be exposed to some new independent artists. But be careful first to check that the license conditions permit uses that suit your needs.

More Information
Free Music Archive <http://freemusicarchive.org/>

Jamendo <http://www.jamendo.com/en/>

Off The Grid

You may notice that this weekend I have posted a number of new articles that some might say take a fresh approach to thinking about political music and the digital environment. I hope you enjoy them.

I am, however, preparing for a conference and for the next two weeks will be off the grid unless something major happens on the internet. I apologise for leaving this space for the moment. Please take a look at my other site OpenContentAustralia http://www.ocaustralia.blogspot.com/ at the end of the month to catch up on other developments in this area.

Capitalism and the Alcoholism of the Music Industry.

UPDATED: Imagine, if you will, the digital music environment as a person. The body, by analogy, is the music industry. The brain is controlled by the directors of the four major record labels with a small space for independents. The speech and actions of this person are therefore predominantly made and influenced by those in the majority who themselves are ‘under the influence’ of capitalism. Indeed this greed is an illness which well equates to alcoholism.

Reflect a little on what this person says and does. The expression is predominantly of one type – it talks about love, it talks about pain, personal struggle, and it entertains. It is often repetitive, reminiscing about times past and sometimes abusive. Much like a real person heavily intoxicated by alcohol it cannot rationalise the world’s events, it focuses on things that are subjective and is incapable of holding a sustained conversation about critical issues that face society.

It is unstable, it is obsessed with getting more of the substance which keeps it feeling this way. It is constantly reaching for the bottle – drinking every last drop of musician’s talent and then discarding them for another over and over again. Its behaviour fractures communities and it offers itself as a poor example to the young people around it who, through ongoing exposure, see this as the normal, as the acceptable and as the example by which others should live.

But it cannot see itself in the mirror. It is blind drunk and beyond being able to help itself. It has a poor memory of the events that have taken place in the past and has not learnt from its mistakes.

Capitalism is the music industry’s alcohol. Its dependency drives the need for it to get more all the time – so why does it act in such a destructive way? The answer lies within the structure of the brain.

The directors of the four major record labels owe a fiduciary duty to their corporations. This duty compels them to act in a way that ensures the greatest profits are produced. In the process of securing more and more money they seek to influence others to create freer (liquor licensing) conditions. Public choice theory describes the cycle by which major corporations threaten and pressure governments to enact new laws which work in their favour and this person, this drunk, exerts its irrationality on those that should be more concerned with helping society.

Indeed it stands on the precipice of self destruction. Despite its addiction, despite its nonsensical speech, despite its influence over governments, it is failing at an ever increasing rate to get enough money into its system. Each year the revenue of the major labels drops. Some of this money is channelled into independent artists who are now able to take more control over the body to create new expression. But on the whole, the industry is getting sicker and sicker.

Furthermore, while the industry explores the new veins and arteries of its recently evolved limb - the digital environment - network neutrality and the contamination of this new part of the body by capitalist priorities threatens its adaptation forever.

So what can we do to help stop this illness?

One approach would be to take this person aside and speak to them about their problems. Explain to them that what they are doing and why it is so destructive. This has already been tried. Academics such as Professor Lawrence Lessig, Professor Terry Fisher and Professor Neil Netanel and many others in the mainstream media and on the internet have tried to ‘intervene’ by writing about these issues. There have been open arguments with representatives of the record labels. They are aware of our concerns and yet they still do nothing.

Another approach is to cut of its supply altogether. File sharing networks are, in essence, the means by which others try to ‘steal’ the alcohol away from this person. But the illegality of these actions only enrage it more and help to perpetuate the discord between the industry and the world leading it to demand more protection and support for its habit. Indeed, the music industry needs some money to function otherwise it will suffer from withdrawal symptoms and be incapable of functioning at all.

Another approach is to wait for capitalism to take its course. The Corporations law and the fiduciary responsibilities of the directors should, at some point, create a tipping point – an acquired brain injury. They should arrive at an equilibrium whereby these companies have lost so much money and are so desperate that they eventually help themselves by introducing a collective licensing regime. But I do not trust them to do this in a way that will be inclusive.

What we actually need is for the government to step in.

This body needs a new brain – there needs to be a shift in control of the industry itself to ensure a democratic governance structure is in place with the capacity to think and act rationally. This will enable the industry to be healthy with enough money to support a professional sector of creators that are free to express themselves to the best of their ability. We need the internal controls to be in place to ensure that in the future, adaptation to new technologies is quick and effective.

More Information
Wikipedia, Alcoholism (17 May 2009)
< http://en.wikipedia.org/wiki/Alcoholism> at 17 May 2009

MashUps and the Reuse of Music

Mashups are a form of culture which take small pieces of pre-existing songs and blend them together to make something new. Perhaps the most well known artists in this field are Girl Talk and DJ Danger Mouse.

This form of culture has developed from rap and hip hop music which has traditionally used repetitive samples as additional parts in new songs. Samples themselves have long been part of our oral tradition. Indeed in everyday language we sample speech from each other through the use of catch phrases. The more recent composition method of mashups, have a tendency to include no new parts to the composition rather bleeding together material from a range of other sources.

The first time I ever experienced a mashup was in an interview with Professor Lawrence Lessig (formerly of Stanford University and now with Harvard University) in the film Good Copy Bad Copy that featured Bush and Blair footage cut to sit with the song Endless Love. This was a film clip about the close relationship between the USA and the UK on foreign policy. But to Lessig the clip also demonstrated the malleability of digital culture and the ability of old material to be used in a way that comments on new situations or events.

But what of music?

There has always been some resuse of music – most typically bands have played songs that others have already composed and released – those that do only this are commonly referred to as cover bands. These bands often offer a new interpretation of the song and sometimes play it in a new style. In other examples of the resuse of music, slightly more adaption takes place – one recent example are the artists Santagold and Diblo who adapted the Clash’s Guns of Brixton and released a version titled ‘The Guns of Brooklyn’. The original song reflected on the socio economic and social conditions of African immigrants in the UK and the intention of the derivative released by Santagold and Diblo was to further comment on the socio economic and social conditions of African Americans.

The cultural benefits of reusing music are profound. Culture allows us to see the world, to express the demands and events that take place in it and allows us to imagine and create a better future. Music that has a pre-existing association with social events and conditions that is then relocated from the past into new circumstances, allows audiences to make an immediate connection between the two spaces in time. The public are able to relive old sentiments, memories are triggered, feelings and emotions of an era past return and the perspective they had at that time can be used to view the contemporary world. The music is re-contextualised.

One example of this is DJ Danger Mouse’s The Grey Album, a remix of Jay-Z’s Black album and The Beatle’s White album which was distributed over file sharing networks. Whilst not sued, the artist, DJ Dangermouse, was threatened and sites hosting the file were subjected to take down notices under the Digital Millennium Copyright Act. Despite the efforts of the copyright holders, the tracks were quickly spread by internet users and a civil disobedience campaign launched to protest the inability of artists to remix music. The mashup itself was a form of political expression reflecting the need for racial harmony.

The institutional mechanisms of society, particularly law which is supported by capitalism, have not readily adapted to new forms of culture. While most forms of copyright legislation provide compulsory licensing mechanisms for cover songs, there are varying degrees and certainty to which samples can be used without a license under the protection of fair use/fair dealing. Typically licensing agreements are required which are expensive and take long periods of time to secure. In protest of the current state of the law a German Avant Guarde musician, Johannes Kriedler mashed 70,200 songs in 33 seconds, completed the necessary paper work and delivered it to the German Music Rights Organisation, GEMA.

In his text Remix Lessig notes that digital technologies have seen a move away from a Read Only culture to a Read Write culture where anyone is able to use cultural expression and mash it into new forms. Lessig suggests that there is a generational difference in the way in which culture is viewed with the older ‘couch potato’ generation unable to appreciate the need or desire of the younger generations to access and recreate existing works. We must be active in ensuring that the law catches up to technology, embraces new, transformative, cultural forms and does not inhibit their growth.

More Information

MySpace, Girl Talk (2009) <http://www.myspace.com/girltalk>at 17 May 2009

YouTube, Bush Blair Endless Love (12 April 2006) <http://www.youtube.com/watch?v=nupdcGwIG-g> at 17 May 2009

Imeem, The Grey Video by DJ Danger Mouse vs. Jay-Z vs. The Beatles (2009) <http://www.imeem.com/systim/video/Z0ejz5RQ/dj-danger-mouse-vs-jay-z-vs-the-beatles-the-grey-video-mus/> at 17 May 2009

You Tube, Santogold - Guns Of Brooklyn <http://www.youtube.com/watch?v=duhGjGuzpSA> at 17 May 2009

Wikipedia, The Grey Album (20 February 2008)<http://en.wikipedia.org/wiki/The_Grey_Album> at 22 April 2008

P2p Blog, Musician mashes up 70,200 songs, delivers lists to rights holders by the truck load (21 August 2008) <http://www.p2p-blog.com/item-826.html> at 17 May 2009

Good Copy Bad Copy <http://www.goodcopybadcopy.net/> at 22 April 2008

Wikipedia, Good Copy Bad Copy (30 March 2008) <http://en.wikipedia.org/wiki/Good_Copy_Bad_Copy> at 22 April 2008

OCA Research Review, Remix (27 October 2008) <http://ocarr.blogspot.com/2008/10/remix-lessig.html> at 17 May 2009

OCA Research Review, In the Matter of Mashups (2 September 2008) <http://ocarr.blogspot.com/2008/09/in-matter-of-mashups.html> at 17 May 2009

Spaces and Places.

Last night I had a very enjoyable dinner with friends at the 20,000 Cows Restaurant in Lismore, NSW and thought to write a little about the analogy between this place and the current space for political music.

20,000 Cows is a quaint little restaurant outside of the CBD. It is housed in an old petrol station with an odd, triangular shaped, small building and a small court yard. Inside the walls are decorated with a range of unique and hand made art works, the curtains are all different colours, there are lanterns, candles on the table and a collection of odd pieces of furniture. There is a potbelly stove made out of an old beer keg, panels of melted glass and a book on Ghandi on the wall.

The food which is absolutely beautiful is Middle Eastern and Indian vegan/vegetarian and the philosophy of the proprietor, Murray Vilkelis, is based on animal rights and respect for other living beings. Some people eat around coffee tables while sitting on lounges, others at tables with mismatching chairs.

The atmosphere is fantastic – there are people from all backgrounds including those from non mainstream and mainstream cultures. It serves as a meeting place for many that appreciate the ideological basis of the ‘business’ and it serves as a place where people from outside that culture can be comfortable and become accustom to alternative approaches.

I say ideological basis of the ‘business’ because while there are recommended prices, these are optional –the menu states that these are suggested prices.

It was a great evening and I will be certain to return many more times however it was not without its hiccups. It was very busy with a Gem Festival nearby attracting a large number of people, this led to some cramping with people squashed together in small spaces and the high demand on the staff led to some delays in service and some confusion about meals.

This was really of a secondary concern to my friends and I, and I only raise it because I was thinking at the time what a great analogy this place was for the current space of political music in the digital environment.

Political music is unique and at present it suffers from a small area in which to thrive. The artists congregate in what little architecture is available to them which is beneficial because of its intimacy and concentration, however the spaces have not grown to accommodate new creators, they have not expanded enough to house everyone comfortably and in a way that provides the greatest level of service. The distribution system (serving staff) are limited in effectiveness because of the lack of expansion and money to do more.

The business appears to be worthwhile from an economic perspective however I was not the one to pay the bill so I cannot say from personal experience whether social norms are enough to ensure that the costs are covered. At a guess I would say that most people that go there are ethically motivated enough to pay the recommended price but am sure that on occasion those that can’t don’t, and sometimes those that can, do not either. The generosity of the proprietor is both what attracts people to try new experiences but at the same time does not of itself ensure or guarantee that the business will continue without financial concerns. As I have noted recently, Trent Reznor estimates that only around 18% of consumers paid to access his bands music when a similar business model was used.

The ideological basis of the restaurant is both an attraction to those that appreciate alternative perspectives, catering (pun intended) to their desire for integtrity and respect. For others, perhaps it is something that does the opposite. It is the same for political music - not everyone who is exposed to it goes on to appreciate its true value.

I didn’t get to eat all that I ordered and some friends ate another person’s meal because of the lack of resources (serving staff per customer) – this is a direct parallel to those of us that want more political music but cannot find it.

There were delays in getting our meals (lack of cooks = lack of artists) but the uniqueness of the food was worth waiting for – it takes time to prepare something that is not generic and mass produced.

And there were things that were not welcome, such as the consumption of meat from other sources on the premises and smoking – this relates to the notion that non dedicated spaces for political expression dilute its potency and ability to get its message across.

As I said, it was a wonderful and very enjoyable evening – we all had a great time and please don’t take this as a criticism of the restaurant. This is merely me being observational and using a real space example as an illustration of what is taking place on the internet.

I had been to this restaurant some 10 or more years ago and never saw it in this way. If you ever have the chance, go, and see for yourself how special cultures express themselves and think a little of how much better the world would be if there were more chances for it to do so.

More Information

Wolf & Lamb, Wolf and Lamb: Animal Free Cooking (7th ed, 2002) <http://lis.net.au/marijonas/WOLF01.html#F200> at 17 May 2009

Your Restaurant, 20,000 Cows (2009)
<http://www.yourrestaurants.com.au/guide/20000_cows/> at 17 May 2009

The Icing

I haven't been able to verify it from another source yet but I was just reading an article on Digital Music News which I found hysterical. Apparently DJ Dangermouse (of The Grey Album fame) and Sparklehorse have released a new album titled 'Dark Night of the Soul'. The trick is that the CD (R) is blank - they are having a dispute with their record label (EMI) and cannot release the music. The music however is available on the net, so all consumers are getting are the liner notes with a 100 page booklet of photos and the instructions to 'Use It As You Will'.

Too funny - when will these labels learn?

More Information
Digital Music News, Danger Mouse + Sparklehorse: The Art of Releasing a Blank CD... (15 May 2009) <http://digitalmusicnews.com/stories/051409danger> at 15 May 2009

Wikipedia, The Grey Album (6 May 2009) <http://en.wikipedia.org/wiki/The_Grey_Album> at 15 May 2009

The Importance of Political Music.

As I start to condense some 8,500 words into four pages for my IASPM presentation I have been thinking a lot about the relative importance of political music. As you should know by now, my doctorate concerns the conditions that will ensure it’s production and reception in the digital environment and maximising the opportunities for it to act as an agent of social change. However in recent times it has become apparent that while this is a noble and valuable pursuit, it takes place in a world that in fact needs many forms of culture including those that I have tended to refer to as ‘superficial’ or ‘distracting’.

Someone asked me recently what music has had the most impact on my life and in answering, I, without hesitating, said that the most obvious music has been that with a strong message about personal strength and courage. Even last week, in the process of confronting some personal challenges, I walked around with a Britney Spears song in my head with the lyrics ‘I’m stronger than yesterday’. Yet in my intellectual pursuits I have typically distanced myself from this form of culture. Indeed there are many moments in my life when I have turned to non political music for comfort, support and fun. Just today I tried to purchase the new Hilltop Hoods CD. It has not been released yet, but the intention was to use it as a new form of escapism – to listen to something that I could enjoy but not on a purely intellectual level. [I will not download it but am cursing the fact that I can hear it on the radio but not purchase it for another month! Damn those release dates.]

As a politically aware person it can be hard for me to actually indentify the impact this form of culture has had on me – since becoming heavily immersed in the study of these types of songs I have made some changes to my personal behaviour including taking greater responsibility for the environment (buying carbon credits when I could, being more diligent about recycling, walking rather than driving when I can), being more aware of and more compassionate for the disadvantaged and marginalised and more in tune with the political events that are taking place in the world. But when the impact is micro not macro, it can be more subtle and difficult to see. Aside from the internet censorship campaign in Australia I cannot claim to have become more overtly involved in politics. Nonetheless the changes are there and the music has certainly been part of making that happen.

But political music is just one form of culture that has produced changes in my personal behaviour and approach to life. When I want to dance (much to the world’s regret) I listen to dance music, techno and hip hop. When I am feeling down I listen to music that has an uplifting message – one of my favourites is Bob Marley’s ‘Three Little Birds’. When I want to relax I listen to classical music or instrumental works (I would not be here today without Deep Forest). And so it becomes clear to me that in my enthusiasm for advocating the conditions for protest music that perhaps I am guilty of being dogmatic. There is a time and a place for all forms of culture – just so long as I am not the only one that remembers that.

Some are aware of my lack of appreciation for organised sports, indeed I commonly refer to football as a form of distraction. Having grown up in a city that stops for sport I became very frustrated by what I considered to be the distraction of the masses. Why, I would ask, do people devote so much time and energy to watching a group of men run around, often in the rain, after a piece of stuffed leather when so much of the world is in a state of crisis? And as a parallel I become frustrated with people that listen only to superficial and distracting music (not that those terms are appropriate). Indeed it is not the football game or the culture of football that I disagree with; it is not the love songs and the dance songs themselves that I don’t appreciate; it is a world which does not allow space for more that bothers me.

One perspective is that people devote themselves to football or listen to music that ‘entertains’ rather than ‘educates’ because they need to. The world is in a state of crisis, but so are many people in their day to day lives. Even if they are not in crisis as such, then they are under pressure from other places whether that be in the workplace, economic, from society itself, from their friends or family or a number of other sources, and they need an outlet. They need to express their feelings and be part of something that does not place demands on them and provides them with a sense of community and security. Political music can do this to a certain extent but it has another motive as well. Popular music which speaks of emotions and which creates a sense of fun and enjoyment does not place people under these demands; it simply allows people to feel.

I was asked recently what I would do to address some of the issues with disadvantaged youth and my answer was immerse them in music and I was clear that it did not matter what type of music or what involvement they had – whether that be to learn an instrument, play in a band, be a radio presenter, go to concerts or just download and share with their friends as much music as they could. The reason for this is two fold. Firstly much of the problems associated with kids stems from their use of time. If they are busy they are far less likely to get into trouble. The second part to this is that music is an outlet – it is a form of expression that is universal (second perhaps only to the smile) it is something that they can share with others and have fun with in the process. It can help them to overcome their personal difficulties, help them to rationalise the world and help them to stay on track.

And so I need to change my approach – political music is important but it is not more important, it is just as important. Without the emotional, without the physical, we are not capable of the intellectual.

One of the sentences in my IASPM paper that I may need to reword to be more diplomatic suggests that emotive and dance music will be produced under almost any conditions because the social function is so well engrained and so well established. Perhaps this is true but only to a certain degree. Just like political music, there remains conditions under which better emotive and dance music will be created. A professional sector of creators needs to be sustained not just to challenge the status quo on a macro level but to ensure that individuals on a micro level have the peace of mind and strength to get over their personal challenges, to enjoy life and can be in a position to contribute to the wider social issues of our time.

I accept that we cannot have one unless we have the other. They are interconnected and not separate. What happens to one effects/affects the other.

Forgive me for just focussing on the political. From now on I will do so in a less dismissive way.

In the digital environment, just as in real space, we suffer from noise. Life is a constant process of clustering and filtering. Trying to group things together and sort them from others. Unlike popular music which already has many architectures and spaces in which this can occur, much more needs to be done to ensure that political music too has a space. It has not gone unnoticed to me that my local club has started to play a lot more political music. As someone who has already been exposed to this, consumes it and uses it, the reception is welcome. But it is partly ineffective for others. While they might hear it and sometimes even recognise it, they cannot connect with it on a level that converts that exposure all the way through to use. There needs to be a forum. There needs to be space and it needs to be appropriate to be effective.

In the digital environment we have the space for the popular, now it is time to create the space for the political.


__________________

I have three phrases I use to describe my learning process. There are the ‘book ends’ where I find the start and the end that hold the middle together. There is the perfect circle, where I can trace something to find its holistic presence. This is what I would call a ‘corner’ because it changes my direction. I have turned it. Thank you.

New Business Models

Here are a couple of great clips that complement each other.

Digg Dialogg Series: Trent Reznor
In the first, Trent Reznor of Nine Inch Nails discusses their adoption of alternative compensation schemes for the monetizing of their music. He states that as music is already free their approach is to try to harness goodwill by making money off associated products such as concert tickets and tee shirts. He notes that the band has not done a lot to make money from online advertising, largely because they have not needed to and because he considers consumers to already have sufficient advertising exposure from other sources.

In the process of their recent experiement with new business structures, he states only 18% of consumers appeared to consider the direct payment of money to the artist (as opposed to a record label) as a factor compelling them to pay. He expresses some disappointment, suggesting that he had expected this to be higher. In the end however they did sell more records and make more money than they would have had they used the traditional model that major record labels use. He concludes that while there are a lot of opportunities to make money, that it should not always be about this.

In discussing emerging artists he suggests that new, unique artists that have a desire to 'change the world' should avoid major record labels. Reznor notes that major record labels are primarly interested in making money and that those outside the mainstream will be forced to constantly question their vision and make compromises. In the alternative he recommeds the use of websites, social networking sites such as MySpace, having great video clips and using stunts to attract attention. He notes that the landscape for music has changed dramatically since the late 1990's - instead of concentrated media sources such as radio and MTV, consumers now have access to music through an enourmous range of sources - the trick for new musicians is to overcome the cluter of the internet and one approach is to think strategically about how people find out about music now.

See the clip here on ZeroPaid.

Mike Masniick, TechDirt
In the second clip. Mike Masnick of TechDirt presents a speech on 'How Trent Reznor and NIN Represent the Future of the Music Industry'. Here Mike discusses in detail the gimmicks and strategies NIN have used to attract the attention and sustain the interest of fans.

Whilst signed to a major label in 2007 the band launched the album Year Zero with an internet scavenger hunt. They also left flash drives with music loaded on them in the bathrooms of concerts for fans to find - this music was uploaded to the internet for others to share however the RIAA issued take down notices to sites that hosted it. They also sold the album on a CD that changed colour when it got warm in the CD player.

Since that time the band has taken control over its own business activites and no longer being singed to a major label has meant far greater freedom in using alternative strategies to make money and distribute their music.

When releasing Ghosts I-IV they added value to the music by licensing 36 tracks under a creative commons license, by giving fans the first 9 tracks for free from their website and asking for a $5 donation for the remaining songs and other similar strategies.

This presentation is well worth watching (it is a little Lessig like in style).

Leadership Music Digital Summit 2009 - Mike Masnick keynote address, 3/25/09 from Leadership Music Digital Summit on Vimeo.

National Human Rights Consultation

The Australian Government is in the process of undertaking a consultation process on the protection of human rights in this country and the need to introduce a Bill of Rights. I urge all Australians to take the time to make a submission on the areas they think need greater protection - for me in particular this includes freedom of expression. Community round-table discussions are being held around the country and submissions can be made until 15 June 2009 - read more here.Here is the submission I made today:

National Human Rights Consultation Secretariat
Attorney-General's Department
Central Office
Robert Garran OfficesNational Circuit
BARTON ACT 2600

2 May 2009



Dear Sir/Madam

Re: National Human Rights Consultation – Freedom of Expression

My name is Sally Hawkins, I am a PhD student and casual academic with the School of Law and Justice at Southern Cross University, Lismore NSW. I write further to the terms of reference for the National Human Rights Consultation with respect to Freedom of Expression.

As you are aware, at present Australia has an implied, limited right to freedom of expression by virtue of the High Court decisions in R v Levy [1997] HCA 31; Nationwide News Pty Ltd v Willis [1992] HCA 48; Australian Capital Television Ltd and Ord v The Commonwealth [1992] HCA 45.

Implied Nature
Indeed with respect to the implied nature of freedom of expression in this country, in ACT v The Commonwealth Dawson J at 16 stated:

...[T]he Australian Constitution, unlike the Constitution of the United States, does little to confer upon individuals by way of positive rights those basic freedoms which exist in a free and democratic society. They exist, not because they are provided for, but in the absence of any curtailment of them. Freedom of speech, for example, which is guaranteed in the United States by the First Amendment to the Constitution, is a concept which finds no expression in our Constitution, not withstanding that it is as much the foundation of a free society here as it is there. The right of freedom of speech exists here because there is nothing to prevent its exercise and because governments recognize that if they attempt to limit it, save in accepted areas such as defamation or sedition, they must do so at their peril. Not only that, but courts recognize the importance of the basic immunities and require the clearest expression of intention before construing legislation in such a way as to interfere with them... The fact, however, remains that in this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values.

I submit that the implied nature of freedom of expression is insufficient. An express or positive right is fundamental to having certainty with respect to the law and to upholding human rights. It was the perspective of our forefathers that the system of representative government as established at the Federal level through the House of Representatives and the Senate would be adequate to protect the basic rights of citizens and to ensure accountability of the legislature. Since this time however there has been a dramatic increase in the complexity of Australian society, the emergence of a number of minorities and the recognition that the representative system of government largely works in favour of the majority and more commonly in the favour of those with large financial resources including corporations. It is my position that Australia should have an express right to freedom of expression contained in a Bill of Rights.

Scope
The limited scope of the current law with respect to freedom of expression, in contrast to other countries that have a positive right to such expression, is also problematic. At present the Australian Constitution only affords protection to speech and acts undertaken which have a connection to the election and operation of the government.

To date the only case in Australia to expand the implied right to freedom of speech to acts other than speech is R v Levy [1997] HCA 31 which concerned the actions of a protestor in relation to duck shooting. While this case has developed the law in this regard, it also serves as an example of the limited opportunities the High Court has had to consider the application of the implied right and the difficulties everyday citizens have with accessing the courts to ensure that the law is applied and developed to new circumstances.

Other countries such as the United States do not have the same limitations with respect to the scope of the Constitutional protections for freedom of expression. A broad right to freedom of expression is necessary, particularly as this country and the majority of the world move into the communication age where much of the speech that occurs is separate from the election and operation of the government.

One recent example of this is the intention of the Australian Government to enact compulsory censorship of the internet through filtering at an Internet Service Provider level. While all Australians concur that prohibition of child pornography is warranted, there remains ongoing concern about the extent to which this filtering may develop both now and into the future. Communication such as that relating to abortion, homosexuality or other more topical issues is a fundamental part of the nature of free society and yet Australia enters the information age without any Constitutional protection to ensure that this information and communication remains available. Simply put, it is not the place of the government to regulate or restrict communication on the internet particularly given that voluntary measures which can be employed in the home at the request of the account holder are available. This is but one example of the need for a Bill of Rights in Australia and the need to expressly protect a broad right to freedom of expression.

Thank you for taking the time to consider my submission. I urge both the committee and the Federal Government to show strong leadership, diligence and commitment to the preservation of our fundamental rights.

Yours sincerely

Sally J Hawkins

Essay Prize & World IP Day

The Australian Copyright Council has just announced that submissions are now being accepted for the GC O'Donnell Essay Prize. The winner, who is to write a paper of between 5,000 and 10,000 words, is to demonstrate original thinking as to the protection of the interests of authors. A prize of $3,500 will be presented to the winner on the 15 October 2009 with entry to the competition closing on 30 September 2009.

On a separate note, Sunday 26th April 2009, is World Intellectual Property Day. The theme for this year is 'green innovation as the keys to a secure future'. A number of countries around the world (with, it seems, the exception of Australia) have organised events to promote innovation and the role of IP law in encouraging investment and creating the momentum and market for development.

There is currently a review going on in Australia regarding much needed changes to the patent system. Those that are interested should visit the IP Australia website and download the relevant documents with a view to making a written submission by Friday 8 May 2009.

The patent system in Australia, and indeed in many parts of the world, is often blamed for inhibiting innovation rather than encouraging it. This is particularly apparent with respect to software and hardware and has a flow on effect to the production and reception of digital music as well as many other creative and intellectual pursuits.

More Information
Australian Copyright Council, GC O'Donnell biennial essay prize (24 April 2009) <http://www.copyright.org.au/publications/essayprize> at 26 April 2009

WIPO, World Intellectual Property Day (2009) <http://www.wipo.int/ip-outreach/en/ipday/2009/> at 26 April 2009

IP Australia, Public Consultation on IP Rights Reforms - Call for submissions on proposed reforms to the IP system (27 March 2009) <http://www.ipaustralia.gov.au/resources/news_new.shtml#21> at 26 April 2009

Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (2002) <http://www.the-future-of-ideas.com/> at 26 April 2009

Byron Bay Blues Festival

I was very lucky to attend the Byron Bay Blues Festival yesterday - I had a great time seeing a whole range of different musicians play. Some of the artists I saw included Watermelon Slim, Tony Joe White, Eugene "Hideaway" Bridges, Tom Freund, Luka Bloom, Jackson Firebird, The Stiff Gins, Paul Patten and Paul Kelly.

I was also very excited to see the Saltwater Band play. This is a great Indigenous Australian band with a glorious sound highlighting the true beauty of their culture and who kept us dancing for over an hour.





















Later in the evening I was thrilled to see Blue King Brown's set. They are a truly amazing band and their live show is even better than their album. The level of musicianship was astonishing and as always they were very political. Their lead singer, Natalie, spoke of the changes that are taking place at present with respect to global consciousness and the emergence of a global community.


















The last show I saw for the night was the John Butler Trio who were awesome. They were very entertaining and they played some of my favorite songs including Treat Yo Mama and The Gov Did Nothing. John Butler also spoke at length about a movement to save the Kimberley and plans to construct a gas plant in Broome with particular concerns for Indigenous land rights as well as the impact on the environment. You can find out more information here.

(They were so popular and I was getting very squashed near the front so as you can see I ended up near a big screen.)















I really had a great day as did around 17,000 others who braved the rain and mud to see some excellent artists.

Ethan Zuckerman on the benefit concerts of the '80s

I was just reading a very interesting blog post by Ethan Zuckerman titled "From protest to collaboration: Paul Simon’s “Graceland” and lessons for xenophiles" in which he gives background information on the benefit concerts held in the mid 1980's. Here is an extract:

A memetic virus gripped the world of popular music in late 1984 and 1985: the superstar benefit single. The phenomenon of superstar benefits can be traced back through George Harrison’s Concert for Bangladesh in 1971 and The Secret Policeman’s Balls organized by Amnesty International throughout the 1970s. But the epidemic of benefit singles that paralyzed the music scene in 1985 can be traced directly to Bob Geldof and the 1984 Christmas hit “Do They Know It’s Christmas”. (Video here. God help us all.)

In 1984, Geldof’s band The Boomtown Rats was lurching towards irrelevance and dissolution. He was depressed: ““We did the drugs, did the girls… And then we didn’t. In late October 1984, I was sitting at home. Rock stars don’t sit at home - they tour, they record.” Sitting at home, Geldof watched a documentary by Michael Buerk on famine in Ethiopia. Geldof was stunned that in a decade characterized by excess and consumption in the UK, acute famine was killing hundreds of thousands in Ethiopia. Geldof organized friends in the UK and Irish music scene to record a benefit single, donating the proceeds to famine relief.

The song in question includes some of the most patronizing lines ever written about the African continent:

And there won’t be snow in Africa this Christmas time
The greatest gift they’ll get this year is life
(Oooh) Where nothing ever grows
No rain nor rivers flow
Do they know it’s Christmas time at all?

But it was a great commercial success, topping the UK singles charts and raising $14 million and eventually earning Geldof a knighthood. It set the template for future benefit singles: recruit musicians based on their name recognition and fame, give each a single phrase to sing, and rely on their fanbases to purchase the single, the accompanying album and videocassettes. Geldof repeated the Band Aid model with Live Aid and recently, Live 8, a festival to raise “awareness” about Africa which, memorably, included so few Africans that Peter Gabriel felt compelled to hold a companion event called “Africa Calling”. (Geldof explained that he had invited U2, Elton John and Madonna because they’d attract large television audiences, while African artists presumably would not.)

In the wake of the Band Aid success, Michael Jackson organized a similar group called USA for Africa, which recorded “We Are the World” (Video - you’ve been warned.) Willie Nelson, Neil Young and John Mellencamp tried to bring the attention back to the US with a series of Farm Aid concerts. And Steven Van Zandt - Bruce Springstein’s guitar player and television mafioso Silvio Dante - weighed in with “Sun City”.

Van Zandt’s project, called Artists United Against Apartheid, was inspired by his trips to South Africa to research the similarities between Apartheid and Indian reservations in the US. He came away from his South African trips with a special distaste for Sun City, a resort casino created by South African hotelier Sol Kerzner in the bantustan of Boputhatswana, an easy drive from Johannesburg and Pretoria. Gambling was illegal in South Africa, but in the allegedly independent Tswana “homeland”, authorities voted to legalize gambling and pornographic movies, creating the opportunity for Kerzner to create an easily accessible and legal “Las Vegas” for the enjoyment of white South Africans. (Kerzer used a similar strategy to develop the Mohegan Sun casino in Uncasville, Connecticut, making gambling easily accessible to my fellow New Englanders through a partnership with the Mohegan Indian tribe.)

Sun City recruited musicians from around the world to perform at the casino. Musicians who accepted the invitation were defying a long-standing cultural boycott of the Apartheid regime. Started in 1961 by the British Musicians Union, the boycott was managed by the UN Center Against Apartheid, which maintained a blacklist of artists who defied the boycott and played at Sun City. The Artists United Against Apartheid project sought to call attention to the boycott and to pressure artists not to accept South African invitations - it wasn’t an attempt to raise funds like many other benefit records, though Danny Schechter, an ABC journalist who helped coordinate the project, reports that funds were given to ANC activst Oliver Tambo to support a school in Tanzania.

This is a great post which goes on to discuss the circumstances and conflict that arose with Paul Simon's recording of the Graceland album. Read the rest of it here.

More Information

Ethan Zuckerman, From protest to collaboration: Paul Simon’s “Graceland” and lessons for xenophiles (2 April 2009) <http://www.ethanzuckerman.com/blog/2009/04/02/from-protest-to-collaboration-paul-simons-graceland-and-lessons-for-xenophiles/> at 5 April 2009

UncensoredInterview - Amy Ray & The Green Team

UncensoredInterview is a website which has recently licensed a number of interviews with musicians under Creative Commons licenses - the subtitle to the site reads "because music begins with a point of view".

I was particularly interested to see that one of the categories under which they list interviews is 'politics'. Here is an interview with Amy Ray of the Indigo Girls in which she discusses the bands perspective and efforts regarding environmental responsibility:

Amy Ray: Green Team.

Attribution: UncensoredInterview

She also talks about an initiative that they started called 'Honor the Earth'. Honor the Earth's mission statement describes the organisation's objectives as creating "awareness and support for Native environmental issues and to develop needed financial and political resources for the survival of sustainable Native communities. Honor the Earth develops these resources by using music, the arts, the media, and Indigenous wisdom to ask people to recognize our joint dependency on the Earth and be a voice for those not heard."

The Indigo Girls also have a fantastic website with an Activism section well worth a look. One of the projects they have recently supported was lobbying to ensure that money from the USA stimulus package was not directed to the nuclear power industry.

More Information
Uncensored Interview - polular interviews on politics
<http://www.uncensoredinterview.com/topics/politics?sort=popular> at 3 April 2009

Honor the Earth <http://www.honorearth.org/> at 3 April 2009

Indigo Girls <http://www.indigogirls.com/open.html> at 3 April 2009

Graduated Response Update

There have been some recent developments in New Zealand and the United States regarding proposals to take action against copyright infringers through graduated response schemes.

In New Zealand, following a failure to reach agreement regarding a Code of Practice which would have set the policies and procedures for the disconnection of account holders, the Government has decided not to implement the controversial s92A provision. The Government has stated an intention to review the introduction of the scheme and will consider amending the legislation to address concerns about its implementation.

In recent days reports from the United States suggest that Comcast, AT&T and Cox are all in the process of commencing a system whereby copyright infringers are notified that their activities have been detected. Verizon is the only major ISP to categorically state that they are not taking part. Whilst Comcast and AT&T have suggested that this is merely an educative mechanism that involves no penalties and no account terminations, Cox have stated that they have disconnected a small number of offenders as part of their scheme but that it is merely an extension of a system that had already been introduced. There are conflicting reports as to whether these developments are part of an agreement with the RIAA or simply steps the ISPs are taking on their own with no major announcement from either party to date.

Further Reading:
OpenContentAustralia, 3 Strikes. You’rree OUT! (1 February 2009) <http://ocarr.blogspot.com/2009/02/3-strikes-yourree-out.html> at 29 March 2009

OpenContentAustralia, NZ Delays Guilt Upon Accusation (25 February 2009) <http://ocarr.blogspot.com/2009/02/nz-delays-guilt-upon-accusation.html> at 29 March 2009

ArsTechnica, "3 strikes" strikes out in NZ as government yanks law (23 March 2009) <http://arstechnica.com/tech-policy/news/2009/03/3-strikes-strikes-out-in-nz-as-government-yanks-law.ars> at 29 March 2009

ZeroPaid, New Zealand Scraps “Three-Strikes” Law - For Now (25 March 2009) <http://feedproxy.google.com/~r/zeropaid/~3/omF46abE95Y/> at 29 March 2009

TechDirt, New Zealand Dumps 3 Strikes Plan... For Now (24 March 2009) <http://www.techdirt.com/articles/20090323/1311354215.shtml> at 29 March 2009

The Register, Kiwis scrap 'three strikes' P2P policy (24 March 2009) <http://www.theregister.co.uk/2009/03/24/new_zealand_delays_three_strikes_policy/> at 26 March 2009

Digital Music News, Three Strikes Gets Struck In New Zealand... (23 March 2009) <http://www.digitalmusicnews.com/stories/032909nz> at 25 March 2009

CNet News, AT&T first to test RIAA antipiracy plan (24 March 2009) <http://news.cnet.com/8301-1023_3-10203799-93.html> at 26 March 2009

Digital Music News, AT&T Clarifies: No Takedowns, No Three-Strikes... (26 March 2009) <http://www.digitalmusicnews.com/stories/032509att> at 29 March 2009

TechDirt, AT&T And Comcast's Non-Denial Denial Of Three Strikes (26 March 2009) <http://www.techdirt.com/articles/20090326/1309454265.shtml> at 29 March 2009

ZeroPaid, AT&T Begins Helping RIAA Fight P2P (26 March 2009) <http://feedproxy.google.com/~r/zeropaid/~3/2D_rwQcJMCM/> at 29 March 2009

ArsTechnica, AT&T tests RIAA P2P program, but refuses to sanction users (25 March 2009) <http://arstechnica.com/tech-policy/news/2009/03/att-joins-riaa-program-but-refuses-to-sanction-users.ars> at 29 March 2009

CNet News, AT&T exec: ISP will never terminate service on RIAA's word (25 March 2009) <http://news.cnet.com/8301-1023_3-10204514-93.html> at 29 March 2009

TechDirt, ISPs Testing RIAA's 3 Strikes Program (25 March 2009) <http://www.techdirt.com/articles/20090325/0933064249.shtml> at 29 March 2009

Digital Music News, RIAA Responds: We're Making Important Progress... (26 March 2009) <http://www.digitalmusicnews.com/stories/032509riaa> at 29 March 2009

CNet News, Comcast, Cox cooperating with RIAA in antipiracy campaign (25 March 2009) <http://news.cnet.com/8301-1023_3-10204047-93.html> at 29 March 2009

Digital Music News, But Wait: Cox Suspending 'Tiny Fraction' of Users... (27 March 2009) <http://digitalmusicnews.com/stories/032609cox> at 29 March 2009

Digital Music News, Comcast Responds: No Three-Strikes, 'Nothing Has Changed'... (27 March 2009) <http://digitalmusicnews.com/stories/032609comcast> at 29 March 2009

Conroy Filibuster

I watched the ABC show Q&A tonight in which Senator Stephen Conroy responded to questions regarding the proposed internet filtering scheme in Australia. Over 2,000 questions were submitted by members of the public.

He spoke very slowly and very carefully selected words when addressing the issues raised. He repeated himself a lot and appeared to deliberately stretch out answers to limit the extent of the discussion.

The central points of his argument were that the first blacklist leaked contained 700 more sites that the true list and was did not accurately depict the sites that are currently blocked. He stated that the second list that has been leaked was closer to the real list. The current system by which sites are refused classification and are blocked has been in place for 9 years and was introduced by the Howard Government. While stating that the list is updated every couple of months to remove outdated links and add new ones he also stated that the list has not been changed since the Labour Government was voted into office. When asked if the government could publish the list in the future he stated that this would defeat the purpose of having it in the first place - seemingly missing the point that none of us would be able to access it anyway.

In response to recent reports that a Dentists surgery was on the list he advised that the site had been hijacked by the Russian mob and that the site had been blocked internationally due to the inclusion of refused classified material on it - he stated that it had never been blocked from Australia. He did note that one site had been incorrectly blocked despite being classified as PG (parental guidance) advising that this was a 'technical error' and that ACMA were going through the list tonight to ensure that other sites had not been accidentally included.

He acknowledged that the filter will not address the distribution of material on file sharing networks, did not have a chance to respond to the suggestion that sites like Facebook pose a greater threat to children nor did he reply to suggestions that keeping the sites online and using them to trace and prosecute offenders was a preferrable option. There was also insufficient discussion of the need for parents to monitor children's net usage and no comment on the fact that only 35,000 Australian's have downloaded and installed NetNanny and other approved home based filtering technology.

Overall he came off as being poorly spoken and unconvincing. However having said that the show itself was not really capable of delivering a considered debate with a sensationalistic approach that did not give enough time to answer each question, overlooked important points raised by members of the public and overall proved to be a poor forum to debate such a detailed and contentious issue.

The show is available to be streamed on the ABC website here.

Get Up - Censor This!

I was sitting here only a few minutes ago checking that my last post on the FMC DC Policy Day had published properly when I noticed that the Get Up petition on the left had side of the screen was nearing 100,000 signatures. I excitedly thought that reaching that milestone would be a great opportunity to write another post about the proposed filtering regime for Australia.

Having thought that, I then turned to check my email and low and behold there is a message from Get Up about something even more interesting - they are looking for OUR ideas to write a new television campaign against the Governments scheme. Their current web ad has been viewed more than 3.5 million times.

They state:

As a people-powered movement, we understand that the internet isn't about control and censorship - it's about collaboration. That's why we're pooling the creativity of the GetUp community to create a TV ad, which will air on national television.

We'll turn your idea into a professional TV ad that will be seen by millions of Australians.

What can you contribute? Creative script ideas, music, images, personal anecdotes, or even a video. We're also looking for offers of help from professional voice-over and acting talent.

Simply submit your idea by email to censorthis@getup.org.au by next Sunday, March 29.

Get to it Australia - the web needs our help!

FMC: Win-Win When? Copyright and Innovation in the Digital Age

I am a big fan of the US organisation called the Future of Music Coalition. They are an artist focused association that lobby the US government and industry for changes to laws and practices that promote musicians welfare. They have been vocal supporters of Network Neutrality, payments for recording artists for terrestrial radio air play and frequently run conferences on topical issues.

Recently I viewed the panel discussion from their DC Policy Day held on 11 February 2009. The speakers were:

Rick Carnes President, Songwriters Guild of America
David Carson General Counsel, US Copyright Office
Zahavah Levine Chief Counsel, YouTube
Steve Marks Executive VP and General Counsel, RIAA
Hal Ponder Director of Government Relations, American Federation of Musicians
Gigi Sohn President, Public Knowledge
Walter McDonough General Counsel, Future of Music Coalition (moderator)

I was particularly interested to hear of the intentions of the new administration with respect to the role of the Copyright Czar, the potential to revisit the DMCA and the possibility of copyright reform with respect to sampling.

The close relationship and the campaign contributions made by the content industry to the Democratic Party was one point raised by Gigi Sohn, as was the need to be careful in making senior appointments to the new government. Discussion also turned to the policy reasons behind the inclusion of broadband infrastructure in the stimulus package.

Zahavah Levine agreed with the panel that the current priorities of the administration may make it difficult to get much needed copyright reform, which for YouTube focuses largely on the difficulties in gaining publishing licenses for people to use sound recordings in their personal videos that are uploaded. The difficulties lie largely in locating the owners of the rights, the multiplicity of rights that apply and the lack of legislative clarity on fair use, with the best solution being the blanket licensing of these rights.

Hal Ponder speaks of the move to introduce terrestrial radio performance rights and notes the sliding scale of royalty payments designed to reduce the burden on small radio stations because of their importance in ensuring that niche artists retain access to public broadcasting.

I laugh at Steve Marks suggestion that the RIAA's approach is always balanced.

Take a look for yourself:


The clip goes for around 1.5hrs.

More Information
Future of Music Coalition <http://www.futureofmusic.org/> 20 March 2009

Future of Music Coalition, DC Policy Day 2009 (11 February 2009) <http://www.futureofmusic.org/events/dcpolicyday09/schedule.cfm> 20 March 2009

Future of Music Coalition, Network Neutrality Fact Sheet (May 2008) <http://www.futureofmusic.org/articles/NNfactsheet.cfm> at 20 March 2009

Future of Music Coalition, Fact Sheet Public Performance Rights for Sound Recordings <http://www.futureofmusic.org/articles/pprsrfactsheet.cfm> (March 2008) at 20 March 2009

Choruss - Jim Griffin

Check out the slide show by Jim Griffin regarding the proposed licensing scheme for file sharing on college campuses in the USA.

The intention is to implement a voluntary licensing scheme which does not required amendments to copyright law nor government intervention. Similarly Griffin does not propose that the fees paid for legal downloading should be applied on a compulsory basis, rather intending to offer opt-in, opt-out and all-in options. However, Choruss's focus is not solely on the legalisation of p2p file sharing - Griffin refers to this as a mere side effect - the aim of the proposal is to ensure monetisation of the digital music industry which includes other digital architectures in addition to p2p.

Interestingly he notes that in introducing a voluntary collective licensing scheme that mathematical perfection is impossible but that a reasonably fair division of funds can take place.

He states that it would be impossible, short of a compulsory license, for Choruss to prevent all future DMCA notices - partially because it will only apply to audio and also because it will only concern artists and labels that have agreed to cooperate. Major record labels are said to be negotiating however not all arists or labels will sign up to the scheme. They hope to have a test in place from Fall 2009 to Fall 2010.

Developments in technology mean that it is now far easier to count and compensate for the sharing of music than to filter exchanges and prevent it. Griffin concludes by noting that 'control' should not be the ultimate aim of the music industry.

While admirable in intention, as usual, there seems to be more questions than answers (check out the chat forum on the side of the slide show). The presentation goes for 1 hour.

Further Reading

Educause, Choruss: A New Business Model for Digital Music (3 March 2009) <https://admin.na3.acrobat.com/_a729300474/p72627963/> at 14 March 2009

ARIA 2008 Sales Figures

There was little surprise in the release of the annual wholesale sales figures of recorded music in Australia this week. In total, physical album sales declined 12% (to $341.7m) over the past 12 months. While ARIA appear to be playing up the increase in digital sales - 35.6% (to $54.1m) there remains an overall loss of 7.91%. This is despite a 6 week period in late 2008 when there was a sudden increase in purchases due to the release of a number of popular bands albums around the same time (no doubt to enable pre Christmas purchasing).

The ARIA press release also indicates that the industry is not expecting a great change in consumer behaviour due to the economic crisis - I for one doubt this will be the case - as people's financial situations deteriorate and money needs to be kept aside for basic living expenses, there is more likely to be a move toward more cost effective means of acquiring music.

The press relase is worth reading just to note the spin doctoring.

Further Reading
ARIA, 2008 ARIA Yearly Statistics (March 2009) <http://www.aria.com.au/documents/YE12-08.pdf> at 14 March 2009

ARIA, ARIA releases 2008 wholesale sales figures (11 March 2o09) <http://www.aria.com.au/2008SalesFigures.htm> at 14 March 2009

International Women's Day

I was lucky to attend a luncheon this week celebrating International Women's Day. The theme for this year was Women in Education and it was very interesting to hear speeches from staff members and students who discussed their experiences. A common theme was the increased opportunities education offers women.

Law and IT are both fields which have often been considered male dominated.

In law it seems that while the majority of graduates are females and they are often recruited to large firms, there are significant impediments to them being promoted to be partners. Furthermore, many women leave the profession altogether - a recent article in the Australian 'lawyer 2b' magazine reports that the Women Lawyers Association of NSW are currently preparing to undertake extensive research to determine why it is that so many women leave - no doubt the lack of flexible work hours and workplace culture play a major part in their decision.

In IT there has been far less participation by women at the university level and as a result fewer graduates and a lower level of participation in the workforce. In the UK IT industry it has been suggested that women are, on average, paid 23% less than their male counterparts and participation has dropped from 21% to 16%, with similar issues across the EU.

It seems that while education is clearly a key part to creating the conditions for women to succeed, there is a lot of work to do in both of these fields to ensure equal participation and prosperity.

Further Reading
ABC News, Protests mark International Women's Day (9 March 2009) <http://www.abc.net.au/news/stories/2009/03/09/2511107.htm?section=justin> at 14 March 2009

Women Lawyers Association of NSW <http://www.womenlawyersnsw.org.au/index.asp?ID=12> at 14 March 2009

The Register, UK IT should 'fire men first', says Kate Craig-Wood (10 March 2009)
<http://www.theregister.co.uk/2009/03/10/craig_wood_in_fire_blokes_call/> at 14 March 2009

The Register, IT industry needs more women <http://www.theregister.co.uk/2008/03/06/women_it_eu_job_shortage/> at 14 March 2009

Oz Filtering Fizzes Out?

Recent reports suggest that the Australian Government's plan for ISP based internet filtering may never come to fruition. Independent Senator Nick Xenophon has now stated that he will oppose any legislation that the Government introduces because the filtering proposal may have unintended negative consequences. Originally in favour of the program due to concerns about online gambling, Senator Xenophon now looks set to vote with the Greens against its introduction stating that the money could be better spent elsewhere. The Senator has suggested that there should be a greater effort to educate parents.

A recent survey conducted by Galaxy on behalf of Get Up suggested only 5% of Australians are in favour of the proposed filtering and only 4% think the Government should have control over the information available to users of the internet. In another survey conducted by Netspace 61% of Australians were strongly opposed to the filtering scheme with only 6.3% in favour.

The Australian Communitcation and Media Authority's blacklist is reported to currently contain 1370 sites, of which only 674 relate to depictions of children under 18. An additional 506 sites classified R18+ and X18+ would be blocked under the scheme with the Government looking to expand this to another 10,000 webpages to include sites "depicting drug use, crime, sex, cruelty, violence or 'revolting and abhorrent phenomena' that 'offend against the standards of morality'".

This is certainly encouraging news but as is often the case in the world of politics, nothing is certain until the votes have been cast. In recent weeks Senator Xenophon has used his position as the holder of the balance of power in the Senate to force changes to the Government's financial stimulus package and it is not beyond possibility that another round of legislative bargaining may begin with the filtering proposal. We will just have to wait and see how this unfolds over the coming months - in the meantime the Government is continuing with the filtering trials.

Earlier posts I have written on the filtering scheme can be found here and here and here. If you haven't already done so, please sign the GetUp online petition which is available on the left hand side of my weblog and which currently has 97,824 signatures.

Further Reading
ZeroPaid, Aussie Internet Censorship Plans Scuttled (27 February 2009) <http://www.zeropaid.com/news/10033/Aussie+Internet+Censorship+Plans+Scuttled> at 1 March 2009

ArsTechnica, Key backer's change of heart endangers Aussie 'Net filtering (26 February 2009) <http://arstechnica.com/telecom/news/2009/02/key-backers-change-of-heart-endangers-aussie-net-filtering.ars> at 27 February 2009

Sydney Morning Herald, Web censorship plan heads towards a dead end (26 February 2009) <http://www.smh.com.au/articles/2009/02/26/1235237810486.html> at 27 February 2009

Cultural Evolution in Cyberspace

The most recent edition of the Southern Cross University Post Graduate Students Magazine, Cruxis, has recently been released. An article I wrote titled 'Cultural Evolution in Cyberspace: Digital Music, Political Expression and the Hope for the Future' can be found on page 21 and can be downloaded here.

NZ Delays Guilt Upon Accusation

Great news in recent days that the NZ Government may push back the introduction of its 3 strikes legislation following lobbying against changes to the Copyright Act 1984. The law may now come into effect on the 27th March 2009 allowing more time for consultation on a Code of Practice for the disconnection of internet accounts with the Telecommunications Carriers Forum. This follows protests, the delivery of a petition by those advocating against the changes and a plan to change icons on websites hosted in the country to black, to illustrate opposition to the new law - I wrote about these in earlier posts which you can find here and here.

While the delay is only for a few short weeks there remains some optimism that the Government is at least aware of its shortcomings and may be willing to reconsider some aspects of it. Changes being discussed include the introduction of a third party mediator to manage disputes and a counter notice system whereby those that feel they have been falsely accused may respond to a breach notice.

It's interesting to note that any three employees of a large business sharing copyright material may be enough to have the internet connection of the whole organisation terminated. One may well question what would happen to the NZ Government should three government employees share illegal material - could the Government lose its own internet connection? Somehow I doubt it despite the obvious double standards.

Further Reading
Digital Music News, ISP Disconnection Law On Hold In New Zealand... (24 February 2009) <http://www.digitalmusicnews.com/stories/022309kiwi> at 25 February 2009

Digital Music News, Resnikoff's Parting Shot: The Debate In New Zealand... (24 February 2009) <http://www.digitalmusicnews.com/stories/022309partingshot> at 25 February 2009

TechDirt, New Zealand Temporarily Backs Down From Controversial Copyright Law (23 February 2009) <http://www.techdirt.com/articles/20090222/2146293855.shtml> at 25 February 2009

ComputerWorld, John Key delays copyright law (23 February 2009) <http://computerworld.co.nz/news.nsf/news/86D681292534A2CCCC25756600143FD1> at 25 February 2009

ArsTechnica, New Zealand P2P disconnection plan delayed after outcry (23 February 2009) <http://arstechnica.com/tech-policy/news/2009/02/new-zealand-p2p-disconnection-plan-delayed-after-outcry.ars> at 25 February 2009

Slyck, Three Strikes on Hold in New Zealand (24 February 2009) <http://www.slyck.com/story1835_Three_Strikes_on_Hold_in_New_Zealand> at 25 February 2009

New Zealand Copywrong Song

The New Zealand organisation CreativeFreedom have released a song called CopyWrong along with a film and audio remix competition.

The song protests the introduction of s92A of the NZ Copyright Act which is due to commence at the end of the month and which sees the introduction of a graduated response policy whereby repeat offenders (how that term will be defined is yet to be seen) will be disconnected from the internet for copyright infringements.

New Zealand will become the first country in the world with an operational three strikes policy. Last week protesters delivered an e-petition against the amendment with over 12,000 signatories, and a hard copy petition with 148 names on it, to the United Future party leader. Other action includes a plan to turn icons, websites, facebook and other profile pictures black in protest of the introduction of the law.

More Information:
ZDNet, New Zealand copyright protest blockades parliament (19 February 2009) <http://news.zdnet.com/2100-9595_22-270800.html> at 22 February 2009

The Register, Kiwis go all black over copyright enforcement laws (17 February 2009) <http://www.theregister.co.uk/2009/02/17/new_zealand_copyright/> at 21 February 2009

ZeroPaid, New Zealand Websites Go Black in Protest of Copyright Legislation (18 February 2009) <http://www.zeropaid.com/news/10018/New+Zealand+Websites+Go+Black+in+Protest+of+Copyright+Legislation> at 21 February 2009

EFF Deeplinks, New Zealand Goes All Black Against Three Strikes Call To Action (17 February 2009) <http://www.eff.org/deeplinks/2009/02/new-zealand-goes-all-black-against-three-strikes> at 21 February 2009

ArsTechnica, Kiwis get strict copyright, three-strikes law at month's end (3 February 2009) <http://arstechnica.com/tech-policy/news/2009/02/kiwis-get-strict-copyright-three-strikes-law-at-months-end.ars> at 4 February 2009

TechDirt, New Zealand Gov't Refuses To Remove 'Guilt Upon Accusation' Clause In Copyright Act (30 January 2009) <http://www.techdirt.com/articles/20090129/1940383575.shtml> at 31 January 2009

ZeroPaid, FAST Supports New Zealand's Three-Strikes Plan for File-Sharers (13 January 2009) <http://www.zeropaid.com/news/9954/FAST+Supports+New+Zealand%27s+Three-Strikes+Plan+for+File-Sharers> at 15 January 2009

NZ Herald, ISPs tread risky path with new rules on piracy (9 January 2009) <http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10551079> at 12 January 2009

TechDirt, Musicians In New Zealand Protesting 'Guilt Upon Accusation' Plan (6 January 2009) <http://www.techdirt.com/articles/20090105/1232323289.shtml> at 7 January 2009

ArsTechnica, Kiwis rally opposition to NZ copyright bill (6 January 2009) <http://arstechnica.com/news.ars/post/20090106-kiwis-rally-opposition-to-nz-copyright-bill.html> at 7 January 2009

NetGuide, Petition to fight copyright law change (5 January 2009) <http://www.netguide.co.nz/index.php?option=com_content&task=view&id=849&Itemid=16> at 7 January 2009

Byron Bay Blues Festival

I was really excited a few weeks ago when notified that my application to volunteer at the Byron Bay Blues Festival had been accepted. Unfortunately due to work commitments I am now unable to attend for the full five days however I have been lucky enough to secure a ticket for Easter Sunday to see, among many other fine musicians, the John Butler Trio, Blue King Brown and Paul Kelly.

The Byron Bay Blues Festival is celebrating its 20th Anniversary this year - I have been a few times before and have long thought it to be one of the best music festivals in Australia. I first saw Ben Harper play there about ten years ago - he is playing again this year, but unfortunately not on the day I am attending.

This festival often has musicians with a political message - the John Butler Trio are well known for their songs 'Treat Yo Mama' and 'The Gov Did Nothing', Blue King Brown's debut album 'Stand Up' is full of songs with a political message such as 'Come and Check Your Head' and 'Comin' Thru', Ben Harper's 'With My Own Two Hands' and Paul Kelly's 'From Little Things Big Things Grow' are all tracks that I played many times on my political music program.

Check out the program for the Blues Festival here and come a long if you can - it will be a magnificent week of music! I think volunteer applications are still being taken for those that cant afford to pay the entry fee.

see you there
Sally

Developments in the Digital Music Environment 2008

Here is a link to download the complete summary of developments in the digital music environment in 2008 - this was put together from the Year in Review series I posted late last year but includes additional material and is up to date right to the end of the year.

Developments in the Digital Music Environment 2008

I have prepared a summary like this for quite a few years now (although this is the first one I have published) let me just say that it takes longer than you might think!

If you use any of this research in a formal way I would be really pleased if you could let me know: oca [at] westnet.com.au.

thanks
Sal

[to download, select link then scroll down the page to the File Factory Basic Service and select 'Download with File Factory Basic'.]

3 Strikes. You’rree OUT!

This month has seen the momentum build on graduated response strategies in many parts of the world so I thought I’d take the chance to write a little on what’s been happening and examine some of the issues that have already begun to emerge.

New Zealand
In 2008 the New Zealand Government enacted Section 92 of New Zealand's Copyright (New Technologies) Amendment Act which will take effect at the end of February 2009. The provision states:

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

The obligation is thus placed on ISPs to comply with the law regardless of the standard of evidence presented to them. While users may be able to sue the ISP for breach of contract in the event of a wrongful disconnection (depending on the specifics of the terms and conditions of the license agreement they enter into), ISPs are essentially forced to act to avoid prosecution by the content industry.

The Telecommunications Carriers Forum has referred to the law as ‘deeply flawed...’ and despite lobbying by musicians, the New Zealand Government has refused to reverse or delay the introduction of the law preferring to wait to assess the impact once it has been implemented.

France and the EU
France was the first country in the world to consider the implementation of a three strikes policy (graduated response policy) with respect to file sharers. France also set up the High Authority for the Distribution of Works and the Protection of Rights on the Internet (La Haute Autoritѐ pur la diffusion des oeuvres et la protection des droits sur internet, or HADOPI).

In October 2008 the European Parliament rejected the idea of an EU wide implementation of a three strikes policy. The EU Parliament instead voted to approve an amendment that recognises users right to privacy and civil rights through Amendment 138.

The vote was 314 against a three strikes policy and 297 in favour and the Amendment to the Bono Report on Cultural Industries was approved. The introduction of a three strikes policy was therefore possible only at the discretion of individual member countries.

However in December 2008 the French President Nicolas Sarkozy, who holds the European Council Presidency, had the amendment stripped from the final version of the legislation. He initially filed a complaint with the European Commission which was denied before taking the issue up with the EU’s Telecommunications Ministers who agreed to remove the amendment.

Italy
Recent reports indicate that Italy is also considering the introduction of a three strikes policy with the Italian Ministry of Culture signing an agreement with French officials agreeing to cooperate on anti-piracy issues.

England
In January this year the draft of a report, Digital Britain, was released which advocates the introduction of legislation to address the implementation of a three strikes policy in England. The report advocates legislating a three strikes code which will include the obligation to forward warning notices (currently undertaken through a voluntary Memorandum of Understanding), and would also make provisions for appeals and the standard of evidence. While there is scope to include additional sanctions at a later stage there is no suggestion at this stage of disconnecting repeat offenders. However the interim report does refer to the need to undertake targeted lawsuits against repeat offenders stating that ISPs should be required to assist with the identification of repeat copyright offenders and release personal details of account holders on receipt of a court order. Research suggests that a letter writing campaign on its own will not deter 37% of downloaders and preliminary reports from BPI suggest that the current letter writing campaign is not have the desired effect.

Ireland – Eircom
In January 2009 the Irish ISP Ericom settled a case with the IFPI by agreeing to implement a three strikes policy for file sharers which includes disconnection for repeat offenders. Under pressure to implement network filtering solutions and in the face of evidence that employees had joked about piracy on its network, the ISP sought to settle the dispute rather than risk secondary copyright liability. The recording industry subsequently announced an intention to seek similar agreements with other Irish internet service providers.

USA
In December 2008 the Recording Industry Association of America announced that it would no longer be suing individual file sharers seeking instead to work cooperatively with ISPs on a three strikes policy. At this stage no details have been released as to the nature of the scheme or whether this will include disconnections nor is it clear which ISPs, if any (rumours suggest AT&T and Comcast will cooperate), have agreed to participate in the scheme.

Emerging Issues
Of major concern is the reliability of IP addresses as a means to identify infringers. Some file sharing networks include fake IP addresses to help mask the identity of file sharers, and research has shown that current investigation methods are unreliable which creates concerns that innocent people will be unfairly targeted and those on two strikes who have reformed their behaviour may be disconnected on the basis of incorrect information.

Dynamic IP addresses have already proved to be problematic in the context of lawsuits for copyright infringement and while in real terms there was limited opportunity for courts to review the evidence (with most accused unable to afford to defend themselves in court) there was at least an established review mechanism in place. As was evident from the lawsuit campaign such strategies also fail to take into consideration that many internet accounts may have multiple users. With the introduction of graduated response policies there has been very little attention given to the establishment of mechanisms through which unfairly and wrongly targeted individuals may seek redress or compensation. This lack of due process opens up the possibility of abuse.

To whom the law or policies that are developed apply is also of concern. Whilst most people reading articles or hearing about these measures would most commonly reflect on the impact of commercial service providers, in effect these changes may impact on a far wider sector including universities, schools, libraries and businesses. These entities provide internet access and by definition can fall within the scope of internet service providers.

The impact on internet service providers is likely to be onerous. The independence of telecommunications service providers is of fundamental importance to the maintenance of a democratic society. By placing the burden on this sector there becomes a real potential for expansion of surveillance. The costs associated with the administrative implementation of a three strikes scheme is also of significance. If ISPs are required to employ additional staff to undertake reviews of logs, send out letters and respond to complaints this will drive up the cost of internet access for all consumers not just those breaking the law.

Questions also remain as to how long users will be disconnected, whether a centralised record will be maintained as to who has been disconnected and whether consumers will be required to pay out contracts for internet access which in some cases may be as long as a fixed two year period.

By far the most onerous result for countries that elect to pursue disconnection is the social impact of users losing their internet accounts. The potential loss of service may prevent access to many basic services including telephone, banking, government services, and for students may prevent educational research and study.

Further Reading
ZeroPaid, FAST Supports New Zealand's Three-Strikes Plan for File-Sharers (13 January 2009) <http://www.zeropaid.com/news/9954/FAST+Supports+New+Zealand%27s+Three-Strikes+Plan+for+File-Sharers> at 15 January 2009

TechDirt, New Zealand Gov't Refuses To Remove 'Guilt Upon Accusation' Clause In Copyright Act (30 January 2009) <http://www.techdirt.com/articles/20090129/1940383575.shtml> at 31 January 2009

NZ Herald, ISPs tread risky path with new rules on piracy (9 January 2009) <http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10551079> at 12 January 2009

TechDirt, Musicians In New Zealand Protesting 'Guilt Upon Accusation' Plan (6 January 2009) <http://www.techdirt.com/articles/20090105/1232323289.shtml> at 7 January 2009

ArsTechnica, Kiwis rally opposition to NZ copyright bill (6 January 2009) <http://arstechnica.com/news.ars/post/20090106-kiwis-rally-opposition-to-nz-copyright-bill.html> at 7 January 2009

NetGuide, Petition to fight copyright law change (5 January 2009) <http://www.netguide.co.nz/index.php?option=com_content&task=view&id=849&Itemid=16> at 7 January 2009

Digital Music News, Sarkozy Starts Selling Three Strikes to Europe... (7 July 2008) <http://www.digitalmusicnews.com/stories_old/070708france> at 9 July 2008

ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008

Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008

TechDirt, European Parliament Rejects Laws Kicking File Sharers Off The Internet (25 September 2008) <http://www.techdirt.com/articles/20080925/1522352377.shtml> at 26 September 2008

Digital Music News, European Lawmakers Question French ISP Monitoring, Enforcement (14 April 2008) <http://www.digitalmusicnews.com/stories/041308EU> at 17 April 2008

EFF Deeplinks, EU Politicians Strike Back Against Three Strikes (7 April 20080 <http://www.eff.org/deeplinks/2008/04/eu-politicians-strikes-back-against-three-strikes> at 13 April 2008

ZeroPaid, European Parliament Rejects Plans to Disconnect File Sharers (11 April 2008) <http://www.zeropaid.com/news/9398/European+Parliament+Rejects+Plan+to+Disconnect+File-Sharers> at 13 April 2008

BBC News, Europe rejects anti-piracy plans (11 April 2008)
<http://news.bbc.co.uk/2/hi/technology/7342135.stm> at 13 April 2008

TechDirt, European Parliament Rejects IFPI Plan To Make ISPs Copyright Cops (10 April 2008) <http://www.techdirt.com/articles/20080410/165146815.shtml> at 13 April 2008

ZeroPaid, New Euro Telecom Package Paves the Way for France's '3 Strikes' Law (2 December 2008) <http://www.zeropaid.com/news/9867/New+Euro+Telecom+Package+Paves+the+Way+for+France%27s+%273-Strikes%27+Law> at 3 December 2008

TechDirt, European Council Rejects EU Parliament's Amendment Against Three Strikes Rule (2 December 2008) <http://www.techdirt.com/articles/20081201/0245052983.shtml> at 3 December 2008

ZeroPaid, Entertainment Industry Trying to Sneak 'Three Strikes Law' into EU? (25 November 2008) <http://www.zeropaid.com/news/9855/Entertainment+Industry+Trying+to+Sneak+%27Three+Strikes%27+Law+into+EU%3F> at 26 November 2008

TechDirt, Three Strikes Rule May Sneak Into EU Law, Despite Earlier Rejection (21 November 2008) <http://www.techdirt.com/articles/20081120/0305392897.shtml> at 23 November 2008

The Register, Academics warn of EU 'three strikes back door plan' (19 November 2008) <http://www.theregister.co.uk/2008/11/19/eu_three_strikes_warning/> at 21 November 2008

ZeroPaid, New Euro Telecom Package Paves the Way for France's '3 Strikes' Law (2 December 2008) <http://www.zeropaid.com/news/9867/New+Euro+Telecom+Package+Paves+the+Way+for+France%27s+%273-Strikes%27+Law> at 3 December 2008

TechDirt, Italian Politicians Look To Push Through French-Style 3 Strikes Law (21 January 2009) <http://www.techdirt.com/articles/20090121/0834043477.shtml> at 24 January 2009

TorrentFreak, Italy to Follow French 3 Strikes Model for P2P (21 January 2009) <http://torrentfreak.com/italy-to-follow-french-3-strikes-model-for-p2p-090121/ > at 31 January 2009

The Register, Digital Britain: A tax, a quango and ISP Snooping (29 January 2009) <http://www.theregister.co.uk/2009/01/29/digital_britain_tax_quango_and_enforcement/> at 31 January 2009

ArsTechnica, "Digital Britain" to legislate graduated response for ISPs (29 January 2009) <http://arstechnica.com/tech-policy/news/2009/01/digital-britain-will-legislate-graduated-response-for-isps.ars> at 31 January 2009

Digital Music News, The Piracy Riddle: Interim Digital Britain Report Emerges... (30 January 2009) <http://www.digitalmusicnews.com/stories/012909digital> at 31 January 2009

TechDirt, UK Gov't Insists That File Sharers Won't Be Kicked Off The Internet (27 January 2009) <http://www.techdirt.com/articles/20090126/1848153538.shtml> at 28 January 2009

ArsTechnica, UK official: ISP disconnection not part of "3 strikes" plan (26 January 2009) <http://arstechnica.com/tech-policy/news/2009/01/uk-official-isp-disconnection-not-part-of-3-strikes-plan.ars> at 28 January 2009

ZeroPaid, No -'3-Strikes' for UK File-Sharing Pirates (26 January 2009) <http://www.zeropaid.com/news/9975/No+%273-Strikes%27+for+UK+File-Sharing+Pirates> at 28 January 2009

ZeroPaid, UK ISPs Oppose File-Sharing Regulations (26 January 2009) <http://www.zeropaid.com/news/9978/UK+ISPs+Oppose+File-Sharing+Regulations> at 28 January 2009

Times, Music pirates will not be disconnected from the internet (26 January 2009) <http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/music/article5586761.ece> at 28 January 2009

Digital Music News, The Disconnect on Disconnections: British Cut-Offs Appear Unlikely... (27 January 2009) <http://www.digitalmusicnews.com/stories/012609disconnect> at 28 January 2009

Digital Music News, BPI: Letter-Writing Campaign Not Getting Desired Results (20 January 2009) <http://digitalmusicnews.com/stories/011909isps> at 21 January 2009

TechDirt, UK Government To Force ISPs To Become Copyright Cops (19 January 2009) <http://www.techdirt.com/articles/20090116/0957263441.shtml> at 21 January 2009

Slyck, No Consensus Reached in UK P2P 'Problem' (15 January 2009) <http://www.slyck.com/story1821_No_Consensus_Reached_in_UK_P2P_Problem> at 21 January 2009

The Register, UK.gov 'to create anti-net piracy agency' (16 January 2009) <http://www.theregister.co.uk/2009/01/16/carter_anti_piracy_agency/> at 21 January 2009

Financial Times, Internet piracy regulations planned for UK (16 January 2009) <http://www.ft.com/cms/s/0/48141a1a-e35c-11dd-a5cf-0000779fd2ac.html?nclick_check=1> at 19 January 2009

The Register, UK.gov prepares for filesharing fracas (15 January 2009) <http://www.theregister.co.uk/2009/01/15/berr_p2p_consultation_responses/> at 19 January 2009

Digital Music News, Big Precedent: Irish ISP Adopting Three Strikes... (30 January 2009) <http://www.digitalmusicnews.com/stories/012909eircom> at 31 January 2009

TechDirt, Irish ISP Accused Of Copyright Violations Agrees To Implement Three Strikes (29 January 2009) <http://www.techdirt.com/articles/20090128/1855013560.shtml> at 31 January 2009

ZeroPaid, Irish ISP Agrees to Three-Strikes Policy For File-Sharers (29 January 2009) <http://www.zeropaid.com/news/9984/Irish+ISP+Agrees+to+Three-Strikes+Policy+for+File-Sharers> at 31 January 2009

Irish Times, Internet users face shutdown over illegal music downloads (29 January 2009) <http://www.irishtimes.com/newspaper/frontpage/2009/0129/1232923373331.html> at 30 January 2009

EFF Deeplinks, Irish ISP Agrees to Three Strikes Against Its Customers (28 January 2009) <http://www.eff.org/deeplinks/2009/01/irish-isp-agrees-three-strikes-against-its-users> at 30 January 2009

ArsTechnica, Irish ISP agrees to disconnect repeat P2P users (29 January 2009) <http://arstechnica.com/telecom/news/2009/01/irish-isp-agrees-to-disconnect-repeat-p2p-users.ars> at 29 January 2009

TechDirt, AT&T And Comcast Willing To Cut Off File Sharers (28 January 2009) <http://www.techdirt.com/articles/20090128/1543013559.shtml> at 30 January 2009

Digital Music News, RIAA Negotiations Continue... Disconnections Still Improbable (29 January 2009) <http://www.digitalmusicnews.com/stories/012809riaa> at 30 January 2009

CNet News, RIAA drops lawsuits; ISPs to battle file sharing (19 December 2008) <http://news.cnet.com/8301-1023_3-10126914-93.html> at 29 January 2009

The Star, The music industry's digital reversal (12 January 2009) <http://www.thestar.com/sciencetech/article/569203> at 15 January 2009

Digital Music News, The RIAA Story: Yet Another Hole Appears... (13 January 2009) <http://www.digitalmusicnews.com/stories/011208riaa> at 15 January 2009

TechDirt, No One Can Find ISPs Who Have Agreed To RIAA's 3 Strikes Plan (6 January 2009) <http://www.techdirt.com/articles/20090105/1639523290.shtml> at 7 January 2009

ZeroPaid, Major ISPs Deny Plans to Help RIAA (6 January 2009) <http://www.zeropaid.com/news/9944/Major+ISPs+Deny+Plans+to+Help+RIAA+Disconnect+File-Sharers> at 7 January 2009

Digital Music News, Any There There? RIAA Agreements Remain Flimsy, Unconfirmed... (4 January 2009) <http://www.digitalmusicnews.com/stories/122208riaa/view> at 5 January 2009

EFF Deeplinks, Laser Printers Found Guilty of "Making Available" Crimes (5 June 2008) <http://www.eff.org/deeplinks/2008/06/laser-printers-found-guilty-making-available-crime> at 13 June 2008

ZeroPaid, STUDY: BitTorrent Users Prone to False Copyright Infringement Claims (6 June 2008) <http://www.zeropaid.com/news/9535/STUDY%3A+BitTorrent+Users+Prone+to+False+Copyright+Infringement+Claims> at 7 June 2008;

TechDirt, Would You Believe Copyright Infringement Notices Are Based On Faulty Information? (5 June 2008) <http://www.techdirt.com/articles/20080605/1227001318.shtml> at 7 June 2008;

ArsTechnica, Study paints grim picture of automated P2p enforcement (5 June 2008) <http://arstechnica.com/news.ars/post/20080605-study-paints-grim-picture-of-automated-dmca-notice-accuracy.html> at 6 June 2008

ArsTechnica, 37% of P2P users say they'll ignore disconnection threats (18 January 2009) <http://arstechnica.com/news.ars/post/20090118-37-of-p2p-users-say-theyll-ignore-disconnection-threats.html> at 21 January 2009

IASPM International Conference

Late last year I received an offer to present my paper 'The Evolution of Culture: Is Political Music Still Being Heard?' at the International Association for the Study of Popular Music's biennial conference in Liverpool in July this year.

I submitted an abstract of my paper to Carlo Nardi, the convenor of the conference theme relating to Popular Music and Technology in a Historical Context. This section of the conference will consider the 'technological impacts upon popular music practices, including questions from cultural, aesthetic, ideological, economic, sociological, historical, legal or musicological perspectives'.

This is an exciting opportunity and I am delighted to be attending the conference. There is not much information about the conference on their website at the moment but that should change very soon so take a look if you are interested: IASPM International Conference. You can read about the other conference themes here.

Tenenbaum

The RecordingIndsutryvThePeople Blog is reporting that oral argument in the Tenenbaum case will be narrowcast and streamable from the Berkman Centre's website on the 22 January 2009. A website has also been set up which enables people to keep in touch with developments in the case.

More Information:
RecordingIndustryvThePeopleBlog, January 22nd oral arguments in SONY BMG Music v. Tenenbaum will be televised over the internet (14 January 2009) <http://recordingindustryvspeople.blogspot.com/2009_01_01_archive.html#3145693789782359556> at 15 January 2009

Joel Fights Back <http://joelfightsback.com/> at 15 January 2009

A Lessig Trilogy

Three great clips that have been posted on the net in recent times featuring Lawrence Lessig:

His last and latest presentation on Remix:
http://www.lessig.org/blog/2008/12/wow_peace_declared.html

Lessig on the Colbert Report:
http://www.lessig.org/blog/2009/01/let_the_remixes_begin.html

Lessig@Harvard on Creative Commons:
http://cyber.law.harvard.edu/events/2008/12/creativecommons

DRM Dies Another Death

Finally Apple has announced that it will ditch DRM on all digital music sales. Effective immediately for the majority of tracks sold in the United States, songs can be downloaded in the unprotected AAC format. This is a significant development albeit fairly predictable given that other digital music stores such as Amazon, WalMart, Napster and Yahoo are already selling unprotected tracks.

Digital Rights Management, code added to a track which prevents users from burning unlimited CDs, required authorisation for playing songs on computers other than the one on which the track was purchased, created compatibility problems with mp3 players and essentially did more harm than good in getting people to transition from file sharing to legitimate music purchases, will be missed by no-one.

The shift is not without consequences however with variable pricing also being introduced to the iTunes store. There is likely to be some price increase with new songs available for $1.29 each rather than the flat $0.99 cent rate. Older tracks will now cost less, however it appears this was used as a trade off by the record labels to ensure an increase in profits.

For existing customers paying an additional $0.30 will enable them to replace songs they have already purchased with unprotected versions. In my opinion this is not only too expensive but really rather rude – DRM protected songs should never have been sold in the first place and should be replaced free of charge. When Yahoo removed protection from its catalogue existing customers were given vouchers to compensate for the transition to the unprotected format.

Questions remain as to whether DRM will be removed in other countries as well. In Australia, at the moment, the only major digital music store without DRM is eMusic which does not sell any tracks from major label artists. Amazon remains unavailable to Australian customers and a quick check of the iTunes Australia store this morning did not reveal any changes. As with most things digital and legal Australia may have to wait some time before it has its chance to enjoy music without these constraints.

Further Reading
Wall Street Journal, Apple Changes Tune on Music Pricing (7 January 2009) <http://online.wsj.com/article/SB123126062001057765.html> at 8 January 2009

Digital Music News, Finally: iTunes Store Goes DRM-Free, 99-Cents Going Variable (7 January 2009) <http://www.digitalmusicnews.com/stories/010509apple> at 8 January 2009

TechDirt, As Rumored, Apple Gives Record Labels Variable iTunes Pricing In Exchange For Ditching DRM (6 January 2009) <http://www.techdirt.com/articles/20090106/1039003297.shtml> at 7 January 2009

ArsTechnica, Apple, labels both win with DRM-free iTunes, tiered pricing (6 January 2009) <http://arstechnica.com/journals/apple.ars/2009/01/06/apple-labels-both-win-with-drm-free-itunes-tiered-pricing> at 7 January 2009

ZeroPaid, iTunes Going DRM-Free (6 January 2009) <http://www.zeropaid.com/news/9945/iTunes+Going+DRM-Free> at 7 January 2009

The Register, DRM now dead, as Amazon snags Sony (11 January 20080 <http://www.theregister.co.uk/2008/01/11/amazon_sony_music_drm_now_dead/> at 20 January 2008

Digital Music News, Warner Music Ditches DRM on Amazon, Stock Struggles Above $6 (28 December 2007) <http://www.digitalmusicnews.com/stories/122807warner> at 11 January 2007

Digital Music News, It's Official: Sony BMG Delivers MP3s to Amazon (10 January 2008) <http://www.digitalmusicnews.com/stories/011008sony> at 20 January 2008

ArsTechnica, Wal-Mart joins MSN and Yahoo, leaves DRM servers online (10 October 2008) <http://arstechnica.com/news.ars/post/20081010-wal-mart-joins-msn-and-yahoo-leaves-drm-key-servers-online.html> at 12 October 2008

TechDirt, Surprise, Surprise: WalMart Changes Its Mind, Keeps DRM Servers Running (For Now) (10 October 2008) <http://www.techdirt.com/articles/20081010/0020522511.shtml> at 12 October 2008

EFF Deeplinks, And Walmart Makes Three: Another Music Service Plans to Shut Down DRM Support (28 September 2008) <http://www.eff.org/deeplinks/2008/09/and-walmart-makes-three-another-music-service-plan> at 5 October 2008

Digital Music News, Wal-Mart Moves On; Ditches Support on DRM Downloads (30 September 2008) <http://www.digitalmusicnews.com/stories/092908walmart> at 5 October 2008

TechDirt, Wal-Mart Ditches DRM... And Lots Of Major Label Music With It (8 April 2008) <http://www.techdirt.com/articles/20080408/003857784.shtml> at 13 April 2008

Digital Music News, Wal-Mart Reaffirms Commitment to MP3s; Standoff Continues (7 April 2008) <http://www.digitalmusicnews.com/stories/040608walmart> at 8 April 2008

Digital Music News, Yahoo Music Makes Good; Offers DRM-Free Replacements, Refunds (31 July 2008) <http://www.digitalmusicnews.com/stories/073008yahoo> at 7 August 2008

SiliconValley/Associated Press, Yahoo offers coupons for songs that stop working when it shuts download service (30 July 2008) <http://www.siliconvalley.com/news/ci_10044573?nclick_check=1> at 6 August 2008

TechDirt, Yahoo Offers Refunds Or DRM-Free Music In Exchange For Shutting Down DRM Servers (29 July 2008) <http://www.techdirt.com/articles/20080728/1455551813.shtml> at 31 July 2008

CNet News, EFF: Yahoo Music should compensate customers (24 July 2008) <http://news.cnet.com/8301-1023_3-9999244-93.html> at 28 July 2008

EFF Deeplinks, Here We Go Again: Yahoo! Music Throws Away the DRM Keys (24 July 2008) <http://www.eff.org/deeplinks/2008/07/here-we-go-again-yahoo-music-throws-away-drm-keys> at 28 July 2008

Digital Music News, About Those Yahoo Music Unlimited Downloads You Bought... (25 July 2008) <http://www.digitalmusicnews.com/stories/072408yahoo> at 28 July 2008

TechDirt, Did Yahoo Not Pay Attention To What Happened When Microsoft Pulled The Plug On Its DRM Server? (24 July 2008) <http://www.techdirt.com/articles/20080724/0341381775.shtml> at 28 July 2008

ArsTechnica, DRM still sucks: Yahoo Music going dark, taking keys with it (24 July 2008) <http://arstechnica.com/news.ars/post/20080724-drm-still-sucks-yahoo-music-going-dark-taking-keys-with-it.html> at 25 July 2008

ZeroPaid, Rhapsody Opens DRM Free Music Store (1 July 2008) <http://www.zeropaid.com/news/9599/Rhapsody+Opens+DRM-Free+Music+Store> at 4 July 2008

TechDirt, Microsoft Keeps DRM Servers Alive For Now; Won't Screw Over Own Customers For A Few More Years (19 June 2008) <http://www.techdirt.com/articles/20080619/0907281455.shtml> at 26 June 2008

Digital Music News, Microsoft: We'll Support Your Downloads After All (17 June 2008) <http://www.digitalmusicnews.com/stories/061808msft> at 20 June 2008

ArsTechnica, DRM sucks redux: Microsoft to nuke MSN Music DRM keys (22 April 2008) <http://arstechnica.com/news.ars/post/20080422-drm-sucks-redux-microsoft-to-nuke-msn-music-drm-keys.html> at 27 April 2008

Digital Music News, MSN Music: The DRM Aftertaste Really Lasts... (24 April 2008) <http://www.digitalmusicnews.com/stories/042308msn> at 26 April 2008

Digital Music News, Microsoft's Final 'Up Yours' To Those Who Bought Into Its DRM Story (23 April 2008) <http://www.techdirt.com/articles/20080422/234401923.shtml> at 26 April 2008

ZeroPaid, Napster Comes Full Circle, Launches DRM-Free mp3 Store (22 May 2008) <http://www.zeropaid.com/news/9509/Napster+Comes+Full+Circle%2C+Launches+DRM-Free+MP3+Store> at 5 June 2008

Digital Music News, Napster Gets It Done: MP3s For Everyone (19 May 2008) <http://www.digitalmusicnews.com/stories/052008napster> at 21 May 2008

Billboard.biz, Napster Goes DRM-Free (20 May 2008) <http://www.billboard.biz/bbbiz/content_display/industry/e3i9189f73c48e7dd51669d4bee4dc1d1b1> at 21 May 2008

TechDirt, Collapse of Music DRM Continues; DRM Customers Still Screwed (20 May 2008) <http://www.techdirt.com/articles/20080520/0551131178.shtml> at 21 May 2008

Technologizer, 25 Arguments for the Elimination of Copy Protection (13 October 2008) <http://technologizer.com/2008/10/13/copy-protection/> at 20 October 2008

Off the Grid

I am taking some time off from blogging for the next couple of weeks. Unless something major happens (record labels have bad timing!) there wont be much happening on this site. I will still post a monthly summary on OpenContentAustralia of the articles I have read this month so go there if you're missing me too much. I hope you enjoyed the Year in Review series - it was a mamoth effort on my part with over 1600 articles to condense but it is done for another year. Thank you for taking the time to read this space it has been an excellent year and I have enjoyed hearing from you all. I wish you and your families a wonderful Christmas and a happy New Year - stay safe,

Sal

Year in Review: Network Neutrality

This year saw further developments in the United States regarding the neutrality of the internet with the FCC finding against the traffic management policies of Comcast, further support for the introduction of legislation requiring ISPs and content owners to respect the principles of an open internet and the introduction of data caps and pricing structures in the United States.

The argument that takes place with respect to the neutrality of the internet is one which sees essentially two differing approaches to the management of internet traffic.

On the one side proponents argue for an open internet through the use of end to end architecture and equality of priority of packets regardless of the type of communications protocol they use.

On the other ISPs and content holders seek to elevate some forms of traffic over others with ISPs charging money to allocate priority. The money is used to ensure that the infrastructure of a network is increased to cope with more and more traffic. Companies such as Microsoft, Google and YouTube are among those who are most likely to need or want priority.[1]

It has been widely recognised that this would have a dramatic impact on the openness of the internet with major content holders being able to secure their communications often at the expense of those that are more poorly funded. Translated to the music industry, a non neutral internet would see independent artists unable to access their audiences or build profiles with major label artists paying to have priority over them.[2]

Comcast
In August 2007 questions were raised as to whether Comcast engaged in protocol management practices - Comcast denied that it was blocking or throttling file sharing protocols.[3]

In February 2008 Comcast acknowledged that it did engage in traffic management practices but stated that these were reasonable and industry based standards that ensured quality services to their clients.[4] Comcast also altered its Terms of Service to correctly represent the company’s position with respect to traffic management.[5]

In March 2008 Comcast announced that it would alter its traffic management policy to phase out discrimination based on file sharing protocols.[6]

On the 1 August 2008 the FCC ordered that Comcast abandon its traffic management practices.[7] The FCC found that Comcast delayed file sharing traffic and ordered Comcast to submit a new traffic management proposal within 30 days.[8] Comcast was not fined.[9] Comcast commenced legal proceedings in the US Court of Appeals District of Columbia Circuit to dispute the finding, challenging the authority of the FCC to make and impose such a ruling but nonetheless agreed to comply with these requirements in the meantime.[10] Traffic that was effected by Comcasts practices included users of the Ares, BitTorrent, eDonkey, FastTrack and Gnutella networks.[11]

In late September 2008 Comcast announced that it was introducing an alternative traffic management policy.[12] Instead of throttling based on protocol the ISP will now reduce speeds to a good DSL level for high bandwidth users and prioritise low bandwidth users once their network reaches 80% of its capacity.[13]

In separate legal action the New York Attorney General subpoenaed Comcast’s records to investigate their traffic management practices.[14]

Others
There have also been allegations that AT&T engaged in protocol traffic management practices although this was denied by the company.[15]

Similar issues have also arisen in Canada, the UK and Germany.[16]

Technological Responses
In response to Comcast’s traffic management policy there were a number of suggestions as to how technical measures such as protocol header encryption could be employed to bypass the protocol discrimination however as Comcast changed its practices these were not developed or employed on a wide spread scale.[17]

Data Caps
Comcast and Time Warner have both introduced capped broadband accounts in the United States which ensure that high volume users pay more for their internet connections than low volume users.[18] It was announced in November 2008 that AT&T will also introduce these measures.[19]

It has been suggested that Australia does not have similar issues with respect to network neutrality because it already has in place capped broadband accounts which inturn allow ISPs to recoup more money and thus expand their networks as it is needed.[20]

Some ISPs continue to argue that traffic management practices based on protocol are still necessary with time sensitive traffic such as VoIP deserving preferential treatment.[21]

Pending Legislation
There is ongoing debate as to whether legislation is required to ensure network neutrality with many suggesting that competition within the market place should be sufficient to maintain ISP independence and that regulation can often create loop holes and have unintended consequences.[22]

In February 2008 Rep. Edward Markey D-Mass, chairman of the House Energy and Commerce Committee’s subcommittee on Telecommunications and the Internet introduced the Internet Freedom Preservation Act which was cosponsored by Rep. Chip Pickering, R-Miss requiring the FCC to assess whether consumers rights are being affected by the traffic management practices of ISPs.[23]

A Bill titled the Internet Freedom and Nondiscrimination Act of 2008, HR 5994, was introduced by Representatives John Conyers (D-MI) and Zoe Lofgren (D-CA) in mid 2008 which mirrored similar attempts in 2006 to alter the US anti-trust laws to ensure internet neutrality.[24] The Bill amends the Clayton Act of 1914 forbidding ISPs from charging differing rates to differing customers for the same product or service which would harm competition.[25] This Bill supports the notion that network neutrality is in essence a competition issue.[26]

Senator Byron Dorgan stated in November 2008 that further legislation would be introduced as early as January 2009.[27]

[1] CNet News, Net neutrality: An American problem? (28 September 2008) <http://news.cnet.com/8301-1035_3-10053045-94.html> at 5 October 2008
[2] Future of Music Coallition, FACT SHEET: Network Neutrality (January 2008) <http://www.futureofmusic.org/articles/NNfactsheet.cfm> at 18 February 2008
[3] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[4] ZeroPaid, Comcast to FCC: 'Yes, We Throttle BitTorrent Traffic, but So What?' (15 February 2008) <http://www.zeropaid.com/news/9267/Comcast+to+FCC%3A+%27Yes%2C+We+Throttle+BitTorrent+Traffic%2C+but+So+What%3F%27> at 17 February 2008; Digital Music News, In a Jam, Comcast Defends Traffic-Throttling (12 February 2008) <http://www.digitalmusicnews.com/stories/021208comcast/view> at 15 February 2008; The Register, Comcast cops to BitTorrent busting (13 February 2008) <http://www.theregister.co.uk/2008/02/13/comcast_fcc_network_management_filing/> at 15 February 2008; TechDirt, Comcast Defends Its Traffic Shaping Efforts (13 February 2008) <http://www.techdirt.com/articles/20080213/133855251.shtml> at 15 February 2008
[5] ArsTechnica, Comcast tweaks Terms of Service in wake of throttling uproar (7 February 2008) <http://arstechnica.com/news.ars/post/20080207-comcast-tweaks-terms-of-service-in-wake-of-throttling-uproar.html> at 8 February 2008
[6] EFF Deeplinks, Comcast Reduces Discrimination, Plans To End It Altogether (28 March 2008) <http://www.eff.org/deeplinks/2008/03/comcast-reducing-discrimination-planning-end-it-altoghether-isp-testing-remains-es> at 30 March 2008
[7] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[8] CNet News, FCC finalizes Comcast's filtering penalties (20 August 2008) <http://news.cnet.com/8301-13578_3-10021222-38.html> at 22 August 2008; Slyck, FCC to Comcast: You have 30 Days (20 August 2008) <http://www.slyck.com/story1749_FCC_to_Comcast_You_have_30_Days> at 22 August 2008; EFF Deeplinks, FCC Rules Against Comcast for BitTorrent Blocking (3 August 2008) <http://www.eff.org/deeplinks/2008/08/fcc-rules-against-comcast-bit-torrent-blocking> at 7 August 2008; ZeroPaid, FCC - Comcast Was Wrong to Throttle, but Prioritizing Packets is Fine (4 August 2008) <http://www.zeropaid.com/news/9675/FCC+-+Comcast+Was+Wrong+to+Throttle%2C+but+Prioritizing+Packets+is+Fine> at 6 August 2008; TechDirt, Comcast Has Quite A Week: Gets In Trouble For Blocking Content And For NOT Blocking Content (1 August 2008) <http://www.techdirt.com/articles/20080801/1236201863.shtml> at 6 August 2008; ArsTechnica, Hammer drops at last: FCC opposes Comcast P2P throttling (25 July 2008) <http://arstechnica.com/news.ars/post/20080725-hammer-drops-at-last-fcc-opposes-comcast-p2p-throttling.html> at 28 July 2008
[9] EFF Deeplink, FCC Chairman Hints at Order Against Comcast (11 July 2008) <http://www.eff.org/deeplinks/2008/07/fcc-chariman-hints-order-against-comcast> at 18 July 2008
[10] ZeroPaid, Comcast Appeals FCC Decision Ordering End to End BitTorrent Throttling (6 September 2008) <http://www.zeropaid.com/news/9737/Comcast+Appeals+FCC+Decision+Ordering+End+to+BitTorrent+Throttling> at 12 September 2008; TechDirt, Comcast Says FCC Has No Authority To Stop Traffic Shaping (20 March 2008) <http://www.techdirt.com/articles/20080319/195617592.shtml> at 22 March 2008
[11] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[12] EFF Deeplinks, Comcast Unveils Its New Traffic Management Architecture (22 September 2008) <http://www.eff.org/deeplinks/2008/09/comcast-unveils-its-new-traffic-management-archite> at 5 October 2008; TechDirt, Comcast Says No One Has Complained About Its New Traffic Slowing Efforts (22 September 2008) <http://www.techdirt.com/articles/20080922/0252232326.shtml> at 26 September 2008; ArsTechnica, Comcast loses P2P religion, goes agnostic on throttling (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-comcast-loses-p2p-religion-goes-agnostic-on-throttling.html> at 21 September 2008
[13] EFF Deeplinks, Comcast Unveils Its New Traffic Management Architecture (22 September 2008) <http://www.eff.org/deeplinks/2008/09/comcast-unveils-its-new-traffic-management-archite> at 5 October 2008; TechDirt, Comcast to Throttle Heavy Internet Users Up to 20 min (23 August 2008) <http://www.zeropaid.com/news/9711/Comcast+to+Throttle+Heavy+Internet+Users+Up+to+20+Min> at 25 August 2008; Digital Music News, Selective Slowdowns: Comcast Keeps Pushing Throttling Plans (22 August 2008) <http://www.digitalmusicnews.com/stories/082108comcast> at 25 August 2008
[14] SiliconValley.com/Associated Press, N.Y. attorney general subpoenas Comcast on traffic throttling (26 February 2008) <http://www.siliconvalley.com/news/ci_8369162?nclick_check=1> at 29 February 2008; The Register, New York Subpoenas Comcast 'reasonable network management' records (27 February 2008) <http://www.theregister.co.uk/2008/02/27/andrew_cuomo_subpoenas_comcast/> at 28 February 2008
[15] ZeroPaid, AT&T to FCC: 'We Don't Throttle Bit Torrent' (27 April 2008) <http://www.zeropaid.com/news/9439/AT%26T+to+FCC%3A+%27We+Don%27t+Throttle+BitTorrent%27> at 29 April 2008
[16] ArsTechnica, P2P throttling leading to net neutrality showdown in Canada (24 April 2008) <http://arstechnica.com/news.ars/post/20080424-p2p-throttling-leading-to-net-neutrality-showdown-in-canada.html> at 2 May 2008; The Star, CRTC asked to stop Bell's 'throttling' (5 April 2008) <http://www.thestar.com/Business/article/410454> at 8 April 2008; ZeroPaid, How Bell and CBC Ignited Network Neutrality Debate in Canada (31 March 2008) <http://www.zeropaid.com/news/9369/How+Bell+and+CBC+Ignited+Network+Neutrality+Debate+in+Canada> at 2 April 2008; TechDirt, It's Good To Be A Monopoly: Bell Canada Tells ISPs To Shut Up And Accept Traffic Shaping (25 March 2008) <http://www.techdirt.com/articles/20080325/155924648.shtml> at 27 March 2008; The Register, Tiscali hits 'undo' after bandwidth throttling chokes iTunes (21 January 2008) <http://www.theregister.co.uk/2008/01/22/tiscali_bandwith_problems_ongoing/> at 30 January 2008; P2PBlog, German cable ISP admits Bittorrent blocking (10 March 2008) <http://www.p2p-blog.com/item-539.html> at 11 March 2008
[17] ZeroPaid, Comcast Work Around for Azures (20 March 2008) <http://www.zeropaid.com/news/9340/Comcast+Work+Around+for+Azureus> at 22 March 2008; The Register, BitTorrent busts Comcast BitTorrent busting (19 February 2008) <http://www.theregister.co.uk/2008/02/19/bittorrent_developers_hit_back_at_comcast/> at 19 February 2008
[18] ZeroPaid, AT&T Begins 20-150GB Data Cap Trials in Reno NV (5 November 2008) <http://www.zeropaid.com/news/9831/AT%26T+Begins+20-150GB+Data+Cap+Trials+in+Reno%2C+NV> at 6 November 2008
[19] ZeroPaid, AT&T Begins 20-150GB Data Cap Trials in Reno NV (5 November 2008) <http://www.zeropaid.com/news/9831/AT%26T+Begins+20-150GB+Data+Cap+Trials+in+Reno%2C+NV> at 6 November 2008
[20] CNet News, Net neutrality: An American problem? (28 September 2008) <http://news.cnet.com/8301-1035_3-10053045-94.html> at 5 October 2008
[21] ArsTechnica, Verizon: we need freedom to delay P2P traffic when necessary (21 August 2008) <http://arstechnica.com/news.ars/post/20080821-verizon-we-need-freedom-to-delay-p2p-traffic-when-necessary.html> at 22 August 2008
[22] ArsTechnica, Is government regulation needed to ensure net neutrality? (14 November 2008) <http://arstechnica.com/news.ars/post/20081114-is-government-regulation-needed-to-ensure-net-neutrality.html> at 16 November 2008; TechDirt, The Paper On Network Neutrality That Any Policy Maker Needs To Read (12 November 2008) <http://www.techdirt.com/articles/20081112/0121062806.shtml> at 16 November 2008;
[23] TechDirt, Markey's Non-Regulation Net Neutrality Regulation (13 February 2008) <http://www.techdirt.com/articles/20080213/122300247.shtml> at 15 February 2008; msnbc/Associated Press, 'Net neutrality' bill introduced (13 February 2008) <http://www.msnbc.msn.com/id/23147101/> at 18 February 2008
[24] ArsTechnica, New bill ties net neutrality to antitrust law (8 May 2008) <http://arstechnica.com/news.ars/post/20080508-new-bill-ties-net-neutrality-to-antitrust-law.html> at 10 May 2008; CNet News, Democrats revive another Net neutrality proposal (8 May 2008) <http://www.news.com/8301-10784_3-9939443-7.html> at 10 May 2008
[25] ArsTechnica, New bill ties net neutrality to antitrust law (8 May 2008) <http://arstechnica.com/news.ars/post/20080508-new-bill-ties-net-neutrality-to-antitrust-law.html> at 10 May 2008; CNet News, Democrats revive another Net neutrality proposal (8 May 2008) <http://www.news.com/8301-10784_3-9939443-7.html> at 10 May 2008
[26] TechDirt, We Need A Broadband Competition Act, Not A Net Neutrality Act (26 February 2008) <http://www.techdirt.com/articles/20080225/135642351.shtml> at 28 February 2008
[27] TechDirt, Net Neutrality Legislation Expected In January (14 November 2008) <http://www.techdirt.com/articles/20081113/1531282827.shtml> at 16 November 2008

FANTASTIC NEWS... maybe

It is reported that the RIAA are abandoning their mass lawsuit campaign against file sharers in the United States with suggestions that ISPs will be cooperating with them to provide warning notices. Since the litigation campaign commenced over 35,000 people have received letters of demand for payment of damages with the threat of litigation for illegally sharing music. All suits that have been commenced will be continued. It will be interesting to see what 'cooperating with ISPs actually means' - if that means poor quality evidence is used to disconnect accounts it is questionable whether this is a step forward or not.

Further Reading
ABC, US Music Industry Abandons Mass Piracy Lawsuits (20 December 2008) <http://www.abc.net.au/news/stories/2008/12/20/2451897.htm?section=justin> at 20 December 2008

CNet News, RIAA President: No talk of blakclisting file sharers (19 December 2008) <http://news.cnet.com/8301-1023_3-10127313-93.html?tag=newsLeadStoriesArea.1> at 20 December 2008

Wall Street Journal, Music Industry to Abandon Mass Suits (19 Decemebr 2008) <http://online.wsj.com/article/SB122966038836021137.html> at 20 December 2008

Digital Music News, Developing - Major Lables Endign Lawsuits Against Individuals (19 December 2008) <http://www.digitalmusicnews.com/stories/121908riaa/view> at 20 December 2008

Slyck, RIAA Drops Lawsuit Campaign – Mostly (19 December 2008) <http://www.slyck.com/story1812_RIAA_Drops_Lawsuit_Campaign_Mostly> at 20 December 2008

ZeroPaid, RIAA to Quit Suing File-Sharers, Wants ISPs to Disconnect Instead (19 December 2008) <http://www.zeropaid.com/news/9907/RIAA+to+Quit+Suing+File-Sharers%2C+Wants+ISPs+to+Disconnect+Instead> at 20 December 2008

EFF Deeplinks, RIAA v. The People Turns from Lawsuits to 3 Strikes (19 December 2008) <http://www.eff.org/deeplinks/2008/12/riaa-v-people-turns-lawsuits-3-strikes> at 20 December 2008

ArsTechnica, No more lawsuits: ISPs (19 December 2008) <http://arstechnica.com/news.ars/post/20081219-no-more-lawsuits-isps-to-work-with-riaa-cut-off-p2p-users.html> at 20 December 2008

Year in Review: Search Engines

A number of new music related search engines launched in 2008 and changes were made to existing search engines which enhance access to music. A number of lawsuits were also commenced by the content industry alleging that music focused search engines are in breach of copyright law.

Search Engines
FilesTube is a new search engine which crawls the internet for music files that are hosted on third party sites to facilitate direct downloading.[1] The search engine, run by Red Sky LLC, has a database of 40 million media files with 5 million users per month.[2] The operators do not host any of the files and state that they are doing their best to ensure they only serve legal copies by deleting links that relate to illegal content.[3] When a user is unable to find the file they are after they can enter an email address and receive notification once the content has been located.[4]

Searchme is a visual search engine which launched a free music streaming service in October 2008.[5] Users are able to listen to an unlimited number of tracks and the site provides links to buy content from Amazon.[6]

The Yahoo search engine now provides access to songs within the Rhapsody catalogue and allows Rhapsody subscribers unlimited streams of all tracks.[7] Non subscribers are able to stream up to 25 tracks a month.[8]

Google China – Top100.cn was launched in August 2008 to compete with Baidu’s music search service.[9] The service is reported to have the cooperation of several major record labels.[10]

Lawsuits
In Parker v. Yahoo, Inc., 2008 WL 4410095 (E.D. Pa. Sept. 25, 2008), a case heard in the US District Court, it was held that cached (archived) copies of copyright material by search engines are not a breach of the exclusive rights of the copyright holder.[11] The court held that an implied license exists when material is uploaded to the internet permitting search engines to make copies and allowing users to access the material through search links.[12]

Project Playlist, a search engine which enables users to produce playlists by linking content hosted on multiple third party sites together without hosting any infringing files was sued for facilitating copyright infringement by nine record labels in April 2008 in the US District Court in Manhattan.[13] Files can stream through the service by users and it is this process which some argue sets the service apart from a standard search engine and which may open the door to legal liability.[14] It was reported that at the time the legal action was commenced the site had a user base of 24 million people with 600,000 unique visitors per day, 9.5 million page views per day and grew more than 200% in 2007.[15] The site is ad supported and claims to pay royalties to music publishing collection agencies BMI, ASCAP and SESAC.[16] The operators claim that their service has many legal uses as well as illegal ones.[17]

Seeqpod, a music focused search engine which also gathers links third party websites was sued in 2008 by Warner Music.[18] The site allows users to stream the content and store it for later use however the songs cannot be downloaded.[19] The company claim that they are protected from liability for copyright infringement under the DMCA.[20]

Baidu was reported as having a 70 percent market share in China largely owing its success to its MP3 music search service which is ad supported.[21] Following the loss of a case against the search engine in 2007, in February 2008 the IFPI on behalf of the record labels commenced legal action against the search engine for facilitating copyright infringement seeking damages of $US9 million.[22] Baidu is being sued by Universal Music Ltd, Sony BMG Music Entertainment Hong Kong Ltd and Warner Music Hong Kong Ltd in the Beijing No.1 Intermediate People’s Court for copyright infringements relating to 127 songs and are seeking the maximum damages of RMB 500,000 ($US71,000) per song – RMB 63,500,000 or $US9 million.[23] In separate legal action against Baidu the Music Copyright Society of China has also filed a suit for deep linking to illegal files seeking $1 million yuan or $US140,000 for breaching copyright on 50 songs.[24] One report suggests that despite claims of not hosting content and only linking to third party sites, that the search engine is actually actively hosting content in a complex network of websites that are inaccessible to other search engines and which are repeatedly relocated when take down notices are received.[25]

[1] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[2] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[3] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[4] ZeroPaid, ZeroPaid Interviews FilesTube - a Web Search Tool for Files (21 October 2008) <http://www.zeropaid.com/news/9812/ZeroPaid+Interviews+FilesTube+-+a+Web+Search+Tool+for+Files> at 22 October 2008
[5] CNet News, Searchme tries music streaming to attract users (20 October 2008) <http://news.cnet.com/8301-17939_109-10070614-2.html> at 22 October 2008
[6] CNet News, Searchme tries music streaming to attract users (20 October 2008) <http://news.cnet.com/8301-17939_109-10070614-2.html> at 22 October 2008
[7] ArsTechnica, Yahoo hopes to boost search fortunes with new music search (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-yahoo-hopes-to-boost-search-fortunes-with-new-music-search.html> at 21 September 2008
[8] ArsTechnica, Yahoo hopes to boost search fortunes with new music search (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-yahoo-hopes-to-boost-search-fortunes-with-new-music-search.html> at 21 September 2008
[9] ZeroPaid, Google Launches Free Music Service in China (10 August 2008) <http://www.zeropaid.com/news/9691/Google+Launches+Free+Music+Service+in+China> at 12 August 2008; Digital Music News, Google Launches Ad-Supported Chinese Music Search (6 August 2008) <http://www.digitalmusicnews.com/stories/080508google> at 7 August 2008; TechDirt, Google Wants To Launch MP3 Search In China (1 August 2008)<http://www.techdirt.com/articles/20080801/1714001868.shtml> at 6 August 2008
[10] Digital Music News, Google Launches Ad-Supported Chinese Music Search (6 August 2008) <http://www.digitalmusicnews.com/stories/080508google> at 7 August 2008
[11] Technology & Marketing Law Blog, Search Engine "Cache" Function Covered by Implied License--Parker v. Yahoo (16 October 2008)<http://blog.ericgoldman.org/archives/2008/10/search_engine_c.htm> at 16 December 2008; TechDirt, Search Engine Cache Isn't Copyright Infringement (24 October 2008) <http://www.techdirt.com/articles/20081017/0150532568.shtml> at 27 October 2008
[12] Technology & Marketing Law Blog, Search Engine "Cache" Function Covered by Implied License--Parker v. Yahoo (16 October 2008)<http://blog.ericgoldman.org/archives/2008/10/search_engine_c.htm> at 16 December 2008; TechDirt, Search Engine Cache Isn't Copyright Infringement (24 October 2008) <http://www.techdirt.com/articles/20081017/0150532568.shtml> at 27 October 2008
[13] Digital Music News, Project Playlist: Another Lopsided Settlement Ahead? (12 May 2008) <http://www.digitalmusicnews.com/stories/051108playlist> at 21 May 2008; TechDirt, RIAA Now Decides That Not Enough People Have Heard Of Project Playlist (29 April 2008) <http://www.techdirt.com/articles/20080428/194905972.shtml> at 2 May 2008; ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008; New York Times/Reuters, Record Companies Sue Project Playlist on Copyright (28 April 2008) <http://www.nytimes.com/reuters/technology/tech-suit.html?_r=1&oref=slogin> at 30 April 2008; Digital Music News, Project Playlist Hauled Into Court; Majors Allege Massive Infringement (29 April 2008) <http://www.digitalmusicnews.com/stories/042808playlist> at 30 April 2008
[14] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[15] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008; New York Times/Reuters, Record Companies Sue Project Playlist on Copyright (28 April 2008) <http://www.nytimes.com/reuters/technology/tech-suit.html?_r=1&oref=slogin> at 30 April 2008
[16] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[17] ArsTechnica, Project Playlist search engine in RIAA's legal crosshairs (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-riaa-files-suit-against-project-playlist.html> at 30 April 2008
[18] Digital Music News, Project Playlist Hauled Into Court; Majors Allege Massive Infringement (29 April 2008) <http://www.digitalmusicnews.com/stories/042808playlist> at 30 April 2008
[19] Digital Music News, The Seeqpod Secret: Simple Searching, Serious Files (23 January 2008) <http://www.digitalmusicnews.com/stories/012408seeqpod> at 30 January 2008
[20] Digital Music News, Warner Music Lawyers Roll Again, Seeqpod Latest Target (23 January 2008) <http://www.digitalmusicnews.com/stories/012308wmg> at 30 January 2008; TechDirt, Warner Music Sues Seeqpod: How Dare It Help People Find Stuff Warner Wishes Didn't Exist (25 January 2008) <http://www.techdirt.com/articles/20080125/01330469.shtml> at 30 January 2008
[21] The Register, China's nonstop music machine (13 September 2008) <http://www.theregister.co.uk/2008/09/13/baidu_investigation/> at 21 September 2008; Digital Music News, Baidu Back On the Burner: Tough Talk Continues (5 June 2008) <http://www.digitalmusicnews.com/stories/060408baidu > at 6 June 2008
[22] The Register, China's nonstop music machine (13 September 2008) <http://www.theregister.co.uk/2008/09/13/baidu_investigation/> at 21 September 2008; ZeroPaid, Google Launches Free Music Service in China (10 August 2008) <http://www.zeropaid.com/news/9691/Google+Launches+Free+Music+Service+in+China> at 12 August 2008; Digital Music News, Baidu Back On the Burner: Tough Talk Continues (5 June 2008) <http://www.digitalmusicnews.com/stories/060408baidu > at 6 June 2008; TechDirt, Record Labels Keep On Trying: Sue Baidu For Copyright Infringement Yet Again (5 February 2008) <http://www.techdirt.com/articles/20080205/084632179.shtml> at 7 February 2008; ArsTechnica, IFPI sues Baidu, Yahoo China over deep linking MP3s (5 February 2008)<http://arstechnica.com/news.ars/post/20080205-ifpi-sues-baidu-yahoo-china-over-deep-linking-mp3s.html>
[23] Digital Music News, Labels Cranking Legal Heat In China... Again (8 April 2008) <http://www.digitalmusicnews.com/stories/040808china> at 13 April 2008; ZeroPaid, IFPI Suing Major search Engine for $9 Million (8 April 2008) <http://www.zeropaid.com/news/9390/IFPI+Suing+Major+Search+Engine+for+%249+Million> at 8 April 2008
[24] ArsTechnica, Labels seek billions in damages over Baidu MP3 deep-linking (7 April 2008) <http://arstechnica.com/news.ars/post/20080407-labels-seek-billions-in-damages-over-baidu-mp3-deep-linking.html> at 8 April 2008; The Register, Baidu sued by Chinese copyright group (3 March 2008) <http://www.theregister.co.uk/2008/03/03/baidu_sued_chinese_copyright_society/> at 5 March 2008; Digital Music News, Baidu Faces Chinese Rebellion, More Lawsuits Fly (3 March 2008) <http://www.digitalmusicnews.com/stories/030208china> at 4 March 2008; Yahoo News UK/Ireland, Chinese music industry groups file suit against Baidu (28 February 2008) <http://uk.news.yahoo.com/rtrs/20080228/tot-uk-baidu-lawsuit-copyright-566e283.html> at 29 February 2008
[25] TechDirt, Baidu Expose Suggests That It's A Lot More Involved In Music Downloads Than It Lets On (15 September 2008) <http://www.techdirt.com/articles/20080915/0150502269.shtml> at 21 September 2008

Year in Review: Recording Contracts

Two thousand and eight saw the further emergence of recording contracts, commonly referred to as 360 deals, which enable labels to derive income from all aspects of an artists career rather than just recording sales.[1] These contracts cover recordings, merchandising, content licensing, sponsorship, touring, DVD, and literary rights.[2]

Under the new emerging standard terms artists are give $3-4 per album for recording sales rather than $1-1.50 which was the typical royalty rate.[3] Of course in an environment where sales are diminishing these new arrangements more generally benefit the label rather than the artist. That said however, some have commented that by consolidating their arrangements artists are saving money by attracting fewer overheads.[4]

It appears that artists are less inclined towards signing major record contracts and this trend includes fewer artists willing to upstream from an independent label to a major label which is commonly achieved through a joint venture arrangement.[5]

There were also further examples of traditional recording contracts being unfair to artists. The band 30 Seconds to Mars were sued by EMI for $30 million for failing to deliver their next album on time.[6] The band claimed that as the contract was for a period of nine years and statutory limitations on contracts in California hold that any contract longer than seven years is void, that they should be released from the contract.[7] The band also noted that they had sold more than 2 million records in the time they had been signed to EMI and not only had they never received any royalties, EMI claims that they are still owed $1.4 million by the band.[8]

In another example, the artist Lyle Lovett was reported to have received no royalties from the sale of 4.6 million albums.[9]

[1] Digital Music News, Live Nation Mega-Deals Keep Getting Bigger... (21 October 2008) <http://www.digitalmusicnews.com/stories/102008equity> at 22 October 2008; Digital Music News, And Another One: Live Nation Ropes Nickelback Mega-Deal (7 July 2008) <http://www.digitalmusicnews.com/stories_old/070708nickelback> at 9 July 2008; Digital Music News, More Rattling on Shakira, Live Nation Mega-Deal... (3 July 2008) <http://www.digitalmusicnews.com/stories/070108shakira> at 4 July 2008; Digital Music News, Stumbling Towards 360: An Industry Licks Its Early Wounds (25 June 2008) <http://www.digitalmusicnews.com/stories/062508three> at 27 June 2008
[2] Digital Music News, Why 360 Degrees Still Spells 360 Questions... (20 August 2008) <http://www.digitalmusicnews.com/stories/081908three> at 22 August 2008
[3] Digital Music News, In 360-Degrees We Trust: Evolving Deal Points Emerge (10 April 2008) <http://www.digitalmusicnews.com/stories/040908three> at 13 April 2008
[4] Digital Music News, 360 + Change: Labels Pushing Harder on Broader Deals (10 February 2008) <http://www.digitalmusicnews.com/stories/021008change> at 19 February 2008
[5] Digital Music News, Upstreaming Disrupted:Why Major Label Survival Depends on Transformed Deals (18 March 2008) <http://www.digitalmusicnews.com/stories/031708upstream> at 19 March 2008
[6] TechDirt, EMI/Virgin Records Sues Platinum Selling Band For $30 Million... Despite Not Paying Them A Dime In Royalties (21 August 2008) <http://www.techdirt.com/articles/20080820/0204472040.shtml> at 25 August 2008
[7] TechDirt, EMI/Virgin Records Sues Platinum Selling Band For $30 Million... Despite Not Paying Them A Dime In Royalties (21 August 2008) <http://www.techdirt.com/articles/20080820/0204472040.shtml> at 25 August 2008
[8] TechDirt, EMI/Virgin Records Sues Platinum Selling Band For $30 Million... Despite Not Paying Them A Dime In Royalties (21 August 2008) <http://www.techdirt.com/articles/20080820/0204472040.shtml> at 25 August 2008
[9] TechDirt, EMI/Virgin Records Sues Platinum Selling Band For $30 Million... Despite Not Paying Them A Dime In Royalties (21 August 2008) <http://www.techdirt.com/articles/20080820/0204472040.shtml> at 25 August 2008; TechDirt, Lyle Lovett: Albums Sold? 4.6 Million. Money Made From Album Sales? $0 (11 July 2008) <http://www.techdirt.com/articles/20080711/1439371651.shtml> at 15 July 2008

Stop the Clean Feed Rally Brisbane

Stop the Clean Feed Rally Brisbane

Stop the Clean Feed Rally Brisbane

Stop the Clean Feed Rally Brisbane