to be back shortly
thanks for your patience
Sally
Friday, May 23, 2008
few more days
Sorry folks research commitments are preventing me from blogging - hope
to be back shortly
to be back shortly
Wednesday, May 21, 2008
Delays
Just a quick post to say sorry for the delay in getting more material to
this blog - things have been a little hectic and should return to normal
shortly.
this blog - things have been a little hectic and should return to normal
shortly.
Sally
Thursday, May 15, 2008
When Worlds Collide – Part 2
Following on from my last post which discussed the differences between real space and cyberspace, I would now like to consider the implications and influences of technological developments on music. Identifying how technological changes have enhanced the ability of music to communicate enables an evaluation of the current conditions offered by the digital music environment and ways in which their potential can be maximised. Socio economic conditions influence technological conditions and vice versa throughout history.
Evolution not Revolution
In the last post I referred to the conception of three worlds by Sir Karl Popper. Another of his theories is that of refutation – here he suggest that knowledge of the world is produced through a process of problem solving iterations. His model for scientific testing starts with a problem solving situation, applies tentative theories which identify false results enabling a determination of the most probable answer(s), leading inturn to more complex and interesting problem solving situations. The identification of false results in one sense is said to emulate the process of natural selection in the biological environment by identifying the most suitable or fit result.
In a similar way to Popper’s theory of knowledge and the theory of evolution, the movement of culture from an analogue environment to a hybrid analogue/digital environment with an ever increasing emphasis on the digital, takes place through a sequence of problem solving, theorising, error elimination and more problem solving.
This theory can be applied in a number of macro and micro extrapolations. The internet itself arguably follows much the same pattern, but for these purposes the focus will be on the narrower conception of the digital music environment as well as music itself.
In the digital music environment, the difficulties creating artificial scarcity led to major content owners, and in turn governments, theorising that increased protections are the most suitable response to the control of intangibles in an intangible environment. Others contend that the problem is not one of recreating scarcity but rather recognition of the impossibility of achieving this and adapting to take advantage of the new environment.
Content owners, motivated by self preservation and money rather than artist, artistic or public benefit, in misidentifying the nature of the problem entered into a cycle which has not solved the true problem and arguably has made the conditions worse for themselves and everyone else. From this perspective strategies such as DRM, file sharing lawsuits against individuals and software developers which inturn impact on overall technological development, the development of closed architectures for music distribution on the internet and the attempt to keep independent artists marginalised by refusing to adopt alternative business models, are the result of addressing the wrong problem in the first place. In contrast, identifying the problem as a need maximise the opportunities for creativity and free expression by applying a theory of positive inclusive community would lead to more interesting and productive problems to resolve such as the detail, application and subsequent revisions of an alternative compensation scheme.
In one sense the content owners have characterised the digital music environment as a context inciting revolution rather than evolution.
Culture also undergoes a constant evolution. Music provides an obvious illustration as a form of expression subjected to differing conditions which favour the existence of certain form, content, styles, accessibility, ability to communicate and in turn the production of social progress.
From its most primitive form of personal, tribal and then public performance, communication through music was, and to a relative extent remains, limited by skill, time and space. Public performances require mastery of instruments, exist for a very finite period of time and are only available to a specific and limited audience. Historically public performance represented the analogue manifestation of music and since this time there has been an ongoing evolution to the form of expression brought about by changes in technology.
The advent of radio saw the removal of space limitations enabling much larger and remote audiences to access music of live performers. This was followed by recording technology which then removed the limitations of time and space enabling audiences to access music at their convenience. Digital technologies also contributed to the production of music with the advent of instruments such as the synthesiser removing many of the barriers for the average person to compose and perform.
The advent of the internet was another major technological development which itself is dynamic and subject to constant change. Here we see the convergence of all the previous adaptations of the production and reception of culture to technology with skill, time and space being further supplemented by enabling instant, low cost and global distribution of works. In some respects for music, this is the ultimate iteration of technology with the potential for the most number of errors inhibiting communication to be eliminated. However the true potential has not yet been properly realised.
As the technological evolution has taken place so too has the content of culture evolved. The content of music has moved from anthropological and community applications to global issues. There have been detectable historical trends with respect to the prevalence of messages within music, one particular notable example being the status of protest music in the United States in the 1960s. This occurred at a time when FM radio was open and commercially ambivalent and there had been technological advances in recording equipment and techniques. Subsequent convergence of record labels and the increased influence of capitalism on the music environment ultimately led to the prevalence of emotive and dance music. If the digital music environment is able to realise its full potential there would inevitably be greater opportunity for the diversity of culture and the ability to support political music and other nonmainstream content.
At various moments in history the technological conditions have combined with the socio economic conditions to favour certain styles over others. In medieval times for example, minstrels and street performers were took on the role of illustrating current events in the commons for those largely illiterate and removed from the immediacy of royalty. Similarly the technical and socio economic conditions in the classical era saw the highest quality of music performed before limited and exclusive audiences. In contrast church music has more generally been performed in a more open environment. Over time and largely in line with changes to technology there has been an exponential growth in the number and diversity of musical styles. While there are many different conceptions to the evolution of musical styles, milestones following the dilution of the classical era include blues, jazz and folk. Rock music marks the start of a dramatic expansion of musical styles which continues unabated today.
The internet and digital technology in particular have created unique musical styles through the use of sampling techniques, mashing and remixing. Enabling limitless reproduction and variation this technology again offers the ultimate iteration by removing barriers to production of music. Similarly with the promise of open and limitless access, this context offers the opportunity to maximise receptive mediation. However the continued determination of major content owners to control music by misinterpreting the problems created by the digital music environment poses an ongoing threat to the realisation of the benefits of this technology.
By enabling or restricting expression, differing modes of communication and architectures in turn influence the effectiveness, style and content of music and therefore the ability to transfer and receive messages. The ultimate conditions for digital culture offer the maximum opportunity for expression to create social progress and without a constant review of the problem solving sequence invoked there will be delays and the possibility that the full potential of the environment will not be realised.
Further Reading
Ed. Michael Benedikt, Cyberspace First Steps (1993)
Wikipedia, Karl Popper (9 May 2008) <http://en.wikipedia.org/wiki/Sir_Karl_Popper> at
12 May 2008
Evolution not Revolution
In the last post I referred to the conception of three worlds by Sir Karl Popper. Another of his theories is that of refutation – here he suggest that knowledge of the world is produced through a process of problem solving iterations. His model for scientific testing starts with a problem solving situation, applies tentative theories which identify false results enabling a determination of the most probable answer(s), leading inturn to more complex and interesting problem solving situations. The identification of false results in one sense is said to emulate the process of natural selection in the biological environment by identifying the most suitable or fit result.
In a similar way to Popper’s theory of knowledge and the theory of evolution, the movement of culture from an analogue environment to a hybrid analogue/digital environment with an ever increasing emphasis on the digital, takes place through a sequence of problem solving, theorising, error elimination and more problem solving.
This theory can be applied in a number of macro and micro extrapolations. The internet itself arguably follows much the same pattern, but for these purposes the focus will be on the narrower conception of the digital music environment as well as music itself.
In the digital music environment, the difficulties creating artificial scarcity led to major content owners, and in turn governments, theorising that increased protections are the most suitable response to the control of intangibles in an intangible environment. Others contend that the problem is not one of recreating scarcity but rather recognition of the impossibility of achieving this and adapting to take advantage of the new environment.
Content owners, motivated by self preservation and money rather than artist, artistic or public benefit, in misidentifying the nature of the problem entered into a cycle which has not solved the true problem and arguably has made the conditions worse for themselves and everyone else. From this perspective strategies such as DRM, file sharing lawsuits against individuals and software developers which inturn impact on overall technological development, the development of closed architectures for music distribution on the internet and the attempt to keep independent artists marginalised by refusing to adopt alternative business models, are the result of addressing the wrong problem in the first place. In contrast, identifying the problem as a need maximise the opportunities for creativity and free expression by applying a theory of positive inclusive community would lead to more interesting and productive problems to resolve such as the detail, application and subsequent revisions of an alternative compensation scheme.
In one sense the content owners have characterised the digital music environment as a context inciting revolution rather than evolution.
Culture also undergoes a constant evolution. Music provides an obvious illustration as a form of expression subjected to differing conditions which favour the existence of certain form, content, styles, accessibility, ability to communicate and in turn the production of social progress.
From its most primitive form of personal, tribal and then public performance, communication through music was, and to a relative extent remains, limited by skill, time and space. Public performances require mastery of instruments, exist for a very finite period of time and are only available to a specific and limited audience. Historically public performance represented the analogue manifestation of music and since this time there has been an ongoing evolution to the form of expression brought about by changes in technology.
The advent of radio saw the removal of space limitations enabling much larger and remote audiences to access music of live performers. This was followed by recording technology which then removed the limitations of time and space enabling audiences to access music at their convenience. Digital technologies also contributed to the production of music with the advent of instruments such as the synthesiser removing many of the barriers for the average person to compose and perform.
The advent of the internet was another major technological development which itself is dynamic and subject to constant change. Here we see the convergence of all the previous adaptations of the production and reception of culture to technology with skill, time and space being further supplemented by enabling instant, low cost and global distribution of works. In some respects for music, this is the ultimate iteration of technology with the potential for the most number of errors inhibiting communication to be eliminated. However the true potential has not yet been properly realised.
As the technological evolution has taken place so too has the content of culture evolved. The content of music has moved from anthropological and community applications to global issues. There have been detectable historical trends with respect to the prevalence of messages within music, one particular notable example being the status of protest music in the United States in the 1960s. This occurred at a time when FM radio was open and commercially ambivalent and there had been technological advances in recording equipment and techniques. Subsequent convergence of record labels and the increased influence of capitalism on the music environment ultimately led to the prevalence of emotive and dance music. If the digital music environment is able to realise its full potential there would inevitably be greater opportunity for the diversity of culture and the ability to support political music and other nonmainstream content.
At various moments in history the technological conditions have combined with the socio economic conditions to favour certain styles over others. In medieval times for example, minstrels and street performers were took on the role of illustrating current events in the commons for those largely illiterate and removed from the immediacy of royalty. Similarly the technical and socio economic conditions in the classical era saw the highest quality of music performed before limited and exclusive audiences. In contrast church music has more generally been performed in a more open environment. Over time and largely in line with changes to technology there has been an exponential growth in the number and diversity of musical styles. While there are many different conceptions to the evolution of musical styles, milestones following the dilution of the classical era include blues, jazz and folk. Rock music marks the start of a dramatic expansion of musical styles which continues unabated today.
The internet and digital technology in particular have created unique musical styles through the use of sampling techniques, mashing and remixing. Enabling limitless reproduction and variation this technology again offers the ultimate iteration by removing barriers to production of music. Similarly with the promise of open and limitless access, this context offers the opportunity to maximise receptive mediation. However the continued determination of major content owners to control music by misinterpreting the problems created by the digital music environment poses an ongoing threat to the realisation of the benefits of this technology.
By enabling or restricting expression, differing modes of communication and architectures in turn influence the effectiveness, style and content of music and therefore the ability to transfer and receive messages. The ultimate conditions for digital culture offer the maximum opportunity for expression to create social progress and without a constant review of the problem solving sequence invoked there will be delays and the possibility that the full potential of the environment will not be realised.
Further Reading
Ed. Michael Benedikt, Cyberspace First Steps (1993)
Wikipedia, Karl Popper (9 May 2008) <http://en.wikipedia.org/wiki/Sir_Karl_Popper> at
12 May 2008
Tuesday, May 13, 2008
When Worlds Collide – Part 1
Considering more specifically the way these environments interact and alter the production (reproduction) and reception of music it is possible to see that changes taking place are a form of evolution not unlike biological transformations seen in real space. In the first post on this topic I will consider the nature of cyberspace compared with real space and in a following post will reflect on the evolution of culture (music) over time.
How intangibles are produced, live and thrive is the essence of this inquiry.
The Space of the Place
Writings at the time of the emergence of cyberspace provide an insight into the initial reaction to its introduction and perceptions held at that time as to its potential - some of which have been realised but many of which remain elusive. In the introduction to the text Cyberspace First Steps, Michael Benedikt describes a number of ways that this space can be conceptualised. He describes cyberspace as the realm of pure information which decontaminates the natural and urban landscapes; he likens it to a series of corridors where intelligence and electricity meet; and he refers to it as a parallel universe. Furthermore he contends that cyberspace is:
A common mental geography, built in turn, by consensus and revolution, cannon and experiment; a territory swarming with data and lies, with mind stuff and memories of nature, with a million voices and two million eyes in a silent, invisible concert of enquiry, dealmaking, dream sharing; and simple beholding. [Ed. Michael Benedikt, Cyberspace First Steps (1993) 2]
Benedikt specifically refers to Sir Karl Popper’s proposition that there are three interconnected worlds to contend with – the first being the objective world of natural tangible objects with qualities such as energy, weight and motion; the second being that of the minds of individuals and subjective consciousness. This includes, for example, calculations, thoughts, feeling and dreams. The third world consists of largely accidental objective products of collective minds, arising through their interaction with the tangible world – these include things such as language, philosophy, the arts and religion. Bendekit suggests that world 3 manifests in the form of patterns whether they be of ideas, expression, data, information or another. He contends that cyberspace is the most recent evolution of world 3 patterns arising from interactions between worlds 1 and 2. He also suggests that cyberspace will never replace the pre-existing elements of world 3 but will only ever displace them [Ibid page 3-4].
There are a number of differences between real space and cyberspace with respect to the form and nature of the environment, the way people take part in these spaces and the inherent properties of the content.
Relative to each other, real space is finite with a limited capacity where as cyberspace is essentially limitless. Real space is divided by national borders while cyberspace has borders based more on commercial desires with many globally accessible open spaces. In each location in real space there is a period of time over night when there is a significant reduction in activity. Cyberspace however never sleeps with the constant movement of intangibles and global nature of its operation. Cyberspace consists of a collection of multiple forms and structures each with their own preferences, weaknesses and benefits. Each person that interacts in cyberspace adopts the structures in cyberspace which most enhance their lives but at the same time can often expose their vulnerabilities as well.
Just as the form of the environment contributes to our understanding of it, so do qualities specific to people. Naturally, humans must take physical form and we therefore have no option but to exist in a constant state within real space. In contrast, human participation in cyberspace is optional and intermittent. The relative ability to interact anonymously is also an important difference with an arguably far greater opportunity to do so in cyberspace.
There are also inherent differences between the content of real space and cyberspace. While real space content takes many forms including artificial and natural physical forms, as well as expression; in cyberspace all content must be intangible and there is a proportionally far greater concentration of expressive communication than other types.
In the next post I will go on to consider more specifically how technology has shaped the development of music and how Popper’s theory of refutation can be used to help evaluate the choices we make, the results that follow and their implications.
Further Reading
Ed. Michael Benedikt, Cyberspace First Steps (1993)
Monday, May 12, 2008
Filesharing failures
Recent reports have again highlighted the ineffectiveness of the RIAA file sharing lawsuit strategy. While there has been a sudden increase in letters of demand being sent to universities across the United States, up to date statistical information further supports the suggestion that peer to peer file sharing continues unaffected. By examining these reports it is possible to reflect on the cost and embarrassment of pursing such as weak and ineffective strategy.
Reports at the end of April and beginning of May suggest that there has been a significant increase in the number of notices being sent by the RIAA to universities. Wired reported a 20 fold increase that focuses on universities in the Midwest, with Indiana University receiving 80 legal notices a day rather than the same number over a period of a month.
Ars Technica recently reported that since the commencement of the lawsuit campaign a total of 5,404 letters have been sent with 2,300 electing to settle the dispute prior to the commencement of legal action. In response to the reports regarding the recent increase the RIAA stated:
We are always making an effort to more effectively and efficiently detect infringing activity on the Internet, as we are continuously looking for ways to improve our ability to find and act on incidences of theft online. Having said that, there's been no change in our procedures.
Many have criticised the lawsuit strategy as failing to have the desired impact on file sharing activity, arguing that it creates: an unjustified burden on average citizens, marginalises much of the youth perpetuating disrespect for the industry, resulting in no additional income or long term benefits for artists, and threatens the neutrality of the internet by coopting internet service providers, amongst other concerns. Indeed the most recent statistical information suggests that this strategy is a complete failure.
The 2008 Digital Music Report from the IFPI suggested that any slight increases in sales of digital music were quickly offset by a further decline in CD purchases and a continued rise in file sharing activity. Independent reports confirm this.
A NPD survey published earlier this year reported that only 42% of music acquired in the US last year was from legitimate sources, declining from 48% in 2006. Furthermore while the number of users has remained stable at around 19% there has been an increase in the number of files shared and sharing among teenagers.
Highlighting further issues with the law suit strategy, the report also indicates that 38% of albums are acquired through friends burning or ripping a home-made CD with only 19% acquired from illegal downloads.
Another NPD Survey focusing on children aged 9 to 14 shows that 49% use iTunes, 26% use LimeWire, while 16% trade music via MySpace. Two thirds reported accessing the Internet without adult supervision with 59% downloading music without assistance. Russ Crupnick, vice president and entertainment industry analyst for The NPD Group stated:
The music industry hoped that litigation and education might encourage parents to keep better tabs on their kids’ digital music activities, but the truth is many kids continue to share music via P2P.
Conducted via email with 3,376 responses from a sample representing the US population of families with children aged 2 to 14, the survey did report some increase in legitimate music sales. Twenty-nine million consumers acquired digital music via pay-to-download sites, an increase of 5 million people in the past 12 months. Nonetheless, digital sales still fail to reflect the true music consumption habits of US citizens.
What is apparent, and indeed has been for some time, is that the lawsuit strategy is simply not working. Every party involved, with the exception of a few industry lawyers, incurs a negative impact without any tangible benefit: students and their families are financially disadvantaged, society is poorer for not having open access to culture, artists continue to struggle, record labels are incurring costs, and the internet and internet service providers are increasingly under strain.
When one considers the potential for voluntary collective licensing all of these negative implications are mitigated. The introduction of a licensing scheme would enable students and their families to direct their finances to their education rather than a private industry unwilling to adapt to a new environment. Society and artists would be better off with the incentive to create high quality works, unlimited access and the freedom to explore cultures from around the world. Removing the legal system from the equation would allow for these resources to be directed to addressing other issues, force the record labels to compete, relieve pressure on internet service providers and reduce the incentives to de-neutralise the network.
However it is not just RIAA that should be embarrassed about this strategy but the United States government and those endorsing this approach in other jurisdictions . With an emphatic illustration of the failure and associated costs, neither the RIAA nor the government have the foresight or courage to make the decisions that are essential for us all. The cost is to culture, free speech and democracy.
Further Reading
Digital Music News, Universities Report Climb In RIAA Letters... (2 May 2008) <http://www.digitalmusicnews.com/stories/050108college> at 5 May 2008
Wired Blog, Universities Baffled By Massive Surge In RIAA Copyright Notices (30 April 2008) <http://blog.wired.com/27bstroke6/2008/04/riaa-sends-spik.html> at 3 May 2008
TechDirt, RIAA Massively Ramps Up Warning Notices To College Students Over File Sharing (May 2008) <http://www.techdirt.com/articles/20080502/1552351013.shtml> at 3 May 2008
The Register, Freetards fill their boots - music survey (18 April 2008) <http://www.theregister.co.uk/2008/04/18/npd_music_survey/> at 26 April 2008
The NPD Group, Consumers Acquire More Music in 2007, But Spend Less (26 February 2008) <http://www.npd.com/press/releases/press_080226a.html> at 27 February 2008
The NPD Group, Kids in the U.S. Continue to Download Music Illegally (30 January 2008)
<http://www.npd.com/press/releases/press_080130b.html > at 12 May 2008
Slyck, P2P Downloading Still a Top Choice for Kids (30 January 2008) <http://www.slyck.com/story1651_P2P_Downloading_Still_a_Top_Choice_for_Kids> at 5 February 2008
ZeroPaid, STUDY: 26% of Kids Still Using Limewire (1 February 2008) <http://www.zeropaid.com/news/9239/STUDY%3A+26%25+of+Kids+Still+Using+Limewire> at 4 February 2008
The Age, 95% of music downloads are illegal (25 January 2008) <http://www.theage.com.au/news/web/95-of-music-downloads-are-illegal/2008/01/24/1201025084723.html> at 31 January 2008
Slyck, P2P Downloads Crush iTunes/Digital Sales 20:1 (24 January 2008) <http://www.slyck.com/story1642_P2P_Downloads_Crush_iTunesDigital_Sales_201> at 31 January 2008
Digital Music News, IFPI Global Sales Data Reaffirms Sluggish Story (23 January 2008) <http://www.digitalmusicnews.com/stories/012308global> at 30 January 2008
Reports at the end of April and beginning of May suggest that there has been a significant increase in the number of notices being sent by the RIAA to universities. Wired reported a 20 fold increase that focuses on universities in the Midwest, with Indiana University receiving 80 legal notices a day rather than the same number over a period of a month.
Ars Technica recently reported that since the commencement of the lawsuit campaign a total of 5,404 letters have been sent with 2,300 electing to settle the dispute prior to the commencement of legal action. In response to the reports regarding the recent increase the RIAA stated:
We are always making an effort to more effectively and efficiently detect infringing activity on the Internet, as we are continuously looking for ways to improve our ability to find and act on incidences of theft online. Having said that, there's been no change in our procedures.
Many have criticised the lawsuit strategy as failing to have the desired impact on file sharing activity, arguing that it creates: an unjustified burden on average citizens, marginalises much of the youth perpetuating disrespect for the industry, resulting in no additional income or long term benefits for artists, and threatens the neutrality of the internet by coopting internet service providers, amongst other concerns. Indeed the most recent statistical information suggests that this strategy is a complete failure.
The 2008 Digital Music Report from the IFPI suggested that any slight increases in sales of digital music were quickly offset by a further decline in CD purchases and a continued rise in file sharing activity. Independent reports confirm this.
A NPD survey published earlier this year reported that only 42% of music acquired in the US last year was from legitimate sources, declining from 48% in 2006. Furthermore while the number of users has remained stable at around 19% there has been an increase in the number of files shared and sharing among teenagers.
Highlighting further issues with the law suit strategy, the report also indicates that 38% of albums are acquired through friends burning or ripping a home-made CD with only 19% acquired from illegal downloads.
Another NPD Survey focusing on children aged 9 to 14 shows that 49% use iTunes, 26% use LimeWire, while 16% trade music via MySpace. Two thirds reported accessing the Internet without adult supervision with 59% downloading music without assistance. Russ Crupnick, vice president and entertainment industry analyst for The NPD Group stated:
The music industry hoped that litigation and education might encourage parents to keep better tabs on their kids’ digital music activities, but the truth is many kids continue to share music via P2P.
Conducted via email with 3,376 responses from a sample representing the US population of families with children aged 2 to 14, the survey did report some increase in legitimate music sales. Twenty-nine million consumers acquired digital music via pay-to-download sites, an increase of 5 million people in the past 12 months. Nonetheless, digital sales still fail to reflect the true music consumption habits of US citizens.
What is apparent, and indeed has been for some time, is that the lawsuit strategy is simply not working. Every party involved, with the exception of a few industry lawyers, incurs a negative impact without any tangible benefit: students and their families are financially disadvantaged, society is poorer for not having open access to culture, artists continue to struggle, record labels are incurring costs, and the internet and internet service providers are increasingly under strain.
When one considers the potential for voluntary collective licensing all of these negative implications are mitigated. The introduction of a licensing scheme would enable students and their families to direct their finances to their education rather than a private industry unwilling to adapt to a new environment. Society and artists would be better off with the incentive to create high quality works, unlimited access and the freedom to explore cultures from around the world. Removing the legal system from the equation would allow for these resources to be directed to addressing other issues, force the record labels to compete, relieve pressure on internet service providers and reduce the incentives to de-neutralise the network.
However it is not just RIAA that should be embarrassed about this strategy but the United States government and those endorsing this approach in other jurisdictions . With an emphatic illustration of the failure and associated costs, neither the RIAA nor the government have the foresight or courage to make the decisions that are essential for us all. The cost is to culture, free speech and democracy.
Further Reading
Digital Music News, Universities Report Climb In RIAA Letters... (2 May 2008) <http://www.digitalmusicnews.com/stories/050108college> at 5 May 2008
Wired Blog, Universities Baffled By Massive Surge In RIAA Copyright Notices (30 April 2008) <http://blog.wired.com/27bstroke6/2008/04/riaa-sends-spik.html> at 3 May 2008
TechDirt, RIAA Massively Ramps Up Warning Notices To College Students Over File Sharing (May 2008) <http://www.techdirt.com/articles/20080502/1552351013.shtml> at 3 May 2008
The Register, Freetards fill their boots - music survey (18 April 2008) <http://www.theregister.co.uk/2008/04/18/npd_music_survey/> at 26 April 2008
The NPD Group, Consumers Acquire More Music in 2007, But Spend Less (26 February 2008) <http://www.npd.com/press/releases/press_080226a.html> at 27 February 2008
The NPD Group, Kids in the U.S. Continue to Download Music Illegally (30 January 2008)
<http://www.npd.com/press/releases/press_080130b.html > at 12 May 2008
Slyck, P2P Downloading Still a Top Choice for Kids (30 January 2008) <http://www.slyck.com/story1651_P2P_Downloading_Still_a_Top_Choice_for_Kids> at 5 February 2008
ZeroPaid, STUDY: 26% of Kids Still Using Limewire (1 February 2008) <http://www.zeropaid.com/news/9239/STUDY%3A+26%25+of+Kids+Still+Using+Limewire> at 4 February 2008
The Age, 95% of music downloads are illegal (25 January 2008) <http://www.theage.com.au/news/web/95-of-music-downloads-are-illegal/2008/01/24/1201025084723.html> at 31 January 2008
Slyck, P2P Downloads Crush iTunes/Digital Sales 20:1 (24 January 2008) <http://www.slyck.com/story1642_P2P_Downloads_Crush_iTunesDigital_Sales_201> at 31 January 2008
Digital Music News, IFPI Global Sales Data Reaffirms Sluggish Story (23 January 2008) <http://www.digitalmusicnews.com/stories/012308global> at 30 January 2008
Thursday, May 8, 2008
Ad Supported Music – Part 2
This is the second part to an earlier post in which I discussed the increasing use of advertising in business models to supplement or replace income from individual consumers in the digital music environment. Moving on from the worst case scenario, this post considers the ways in which an ad supported business model could be employed in a beneficial way.
The Most Favourable Model
Ad supported business models for music could create opportunities for the diversity of culture, free speech and democracy if developed in a way that took account of the potential negative implications and sought to overcome these. Ad supported music services offer an enormous potential for the reception of culture, enabling any person with access to the internet the ability to enjoy and explore an essentially unlimited range of material. Under the right conditions, business models of this nature also offer the potential to level the playing field for the entry of new creators. Again it is important to consider the nature of the enterprise offering the music service, the equality of access for speakers, the mode of communication and its influence on audiences as well as the independence of the opinions of creators.
In contrast to profit seeking entities, non profit associations or formal cooperatives allow a much greater opportunity to accommodate goals of an abstract nature such as the pursuit of a diverse and fair music industry; allow for democratic decision making and mutual ownership. While not all corporations possess objectives of extreme and unmitigated capitalism, any structure other than these would, if not from the outset, then certainly in time, allow for the worst case scenario as described earlier to develop. Employing an alternative structure does not mean operating without creating revenue but that this is not the primary objective. Any profits are returned to the members or used to enhance the service itself for the ultimate benefit of the public.
By employing such a structure there is a far greater opportunity to secure equality of access for creators thus promoting active public participation. In discussing an alternative compensation model for open peer to peer file sharing, Professor Terry (William) Fisher suggests that rather than just considering the number of times a track is downloaded or streamed from a digital music service, that an alternative or hybrid satisfaction determinant may be achieved through a public voting or rating system. Media corporations could continue to operate in such an environment but would be no more powerful to control the direction or development of the service(s) than any other member.
The democratic structure also provides for an open and transparent division of advertising revenue. By ensuring that independent, particularly politically motivated artists have equal access, enhances the likelihood of this genre of music to be created reducing the present commercial preference for emotive and dance music.
The mode of communication is also a fundamental determinant in the ability to secure free expression to the benefit of democracy. Unlike the closed internet architecture models discussed in the previous post, and while again a matter of degree in each instance, open peer to peer file sharing networks, particularly those written with open source code, offer no limitations to participation and unlimited file formats. Whilst the issue of digital rights management for individual files is not directly prevented by this model, typically it has been the case that unprotected files have been uploaded to open networks. If the remuneration of artists were to be facilitated on open networks there would more than likely be a need to track downloads or streams in some way, for example, through the use of non-invasive watermarks or other software. The non profit nature of the structure would therefore aid in limiting the incentives to implement digital rights management technology to the extent used in closed networks, allowing far greater reception, interpretation and mediation of culture.
The independence of the expression of creators would also be ensured to a far greater degree if an advertising model were adopted within a democratic/non private structure. There would also be less incentive to exclude or favour particular advertisers and the potential to allocate a quantity of advertising space to non profit or socially beneficial endeavours.
Conclusion
In the end the adoption of ad supported business models may not be identical for each music service presently in place or developed into the future. Nonetheless there are conditions in which political music and a diversity of culture will thrive over others. Left to the interests of powerful corporations it is far more likely that the potential for creativity, free speech and democracy will not be realised. Some parallels may be drawn with the implications of commercial television compared with the more liberal programming of public television. In order to enhance the quality of music and to create the conditions in which deliberative democracy can take place, there must be equity between creators, an open communication model and expression independent of the overbearing influence of capitalism.
Further Reading
ArsTechnica, Report: ad-supported content will soon dominate digital media (5 May 2008) <http://arstechnica.com/news.ars/post/20080505-report-ad-support-content-will-soon-dominate-digital-media.html> at 6 May 2008
TechDirt, Advertising is Content; Content is Advertising (19 March 2008)
<http://www.techdirt.com/articles/20080318/004136567.shtml> at 6 May 2008
TechDirt, Content Is Advertising... On TV (23 April 2008) <http://www.techdirt.com/articles/20080422/022513915.shtml> at 26 April 2008
Digital Music News, We're Number Three: SpiralFrog Claims Third-Place Download Crown (28 March 2008) <http://www.digitalmusicnews.com/stories/032708three> at 30 March 2008
CNet News, Ad-supported SpiralFrog finally launches music site (7 August 2007) <http://news.com.com/2100-1025_3-6201315.html> at 12 August 2007
Digital Music News, SpiralFrog Grabs $2 Million...With Serious Strings Attached (2 January 2008) <http://www.digitalmusicnews.com/stories/010207spiralfrog> at 11 January 2008
Digital Music News, MySpace Scores Gold Record (In Ad-Supported Terms) (24 March 2008) <http://www.digitalmusicnews.com/stories/032308pennywise> at 26 March 2008
Digital Music News, Back from the Brink: Qtrax Licensing Deals Emerge (3 March 2008) <http://www.digitalmusicnews.com/stories/030308qtrax> at 5 March 2008
Digital Music News, Details Bubbling on Major-Backed, Ad-Supported Venture (19 February 2008) <http://www.digitalmusicnews.com/stories/021708ad> at 21 February 2008
Digital Music News, Gabriel Pumps Serious Cash Into Ad-Supported Startup (22 January 2008) <http://www.digitalmusicnews.com/stories/012008gabriel> at 30 January 2008
William Fisher III, Promises To Keep (2004) <http://www.amazon.com/Promises-Keep-Technology-Entertainment-Stanford/dp/080475845X/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1210219722&sr=8-1> at 5 May 2008
Christopher J Sichok, The Free Market: An Erosion of Free Speech, eLaw - Murdoch University Electronic Journal of Law, Volume 7 Number 3 (September 2000) <http://www.murdoch.edu.au/elaw/issues/v7n3/sichok73.html> at 6 May 2008
Wikipedia, Deliberative Democracy (7 February 2008)
<http://en.wikipedia.org/wiki/Deliberative_democracy> at 6 May 2008
Wikipedia, Public Television (25 April 2008)
<http://en.wikipedia.org/wiki/Public_television> at 6 May 2008
Free Press <http://freepress.net/> at 6 May 2008
The Most Favourable Model
Ad supported business models for music could create opportunities for the diversity of culture, free speech and democracy if developed in a way that took account of the potential negative implications and sought to overcome these. Ad supported music services offer an enormous potential for the reception of culture, enabling any person with access to the internet the ability to enjoy and explore an essentially unlimited range of material. Under the right conditions, business models of this nature also offer the potential to level the playing field for the entry of new creators. Again it is important to consider the nature of the enterprise offering the music service, the equality of access for speakers, the mode of communication and its influence on audiences as well as the independence of the opinions of creators.
In contrast to profit seeking entities, non profit associations or formal cooperatives allow a much greater opportunity to accommodate goals of an abstract nature such as the pursuit of a diverse and fair music industry; allow for democratic decision making and mutual ownership. While not all corporations possess objectives of extreme and unmitigated capitalism, any structure other than these would, if not from the outset, then certainly in time, allow for the worst case scenario as described earlier to develop. Employing an alternative structure does not mean operating without creating revenue but that this is not the primary objective. Any profits are returned to the members or used to enhance the service itself for the ultimate benefit of the public.
By employing such a structure there is a far greater opportunity to secure equality of access for creators thus promoting active public participation. In discussing an alternative compensation model for open peer to peer file sharing, Professor Terry (William) Fisher suggests that rather than just considering the number of times a track is downloaded or streamed from a digital music service, that an alternative or hybrid satisfaction determinant may be achieved through a public voting or rating system. Media corporations could continue to operate in such an environment but would be no more powerful to control the direction or development of the service(s) than any other member.
The democratic structure also provides for an open and transparent division of advertising revenue. By ensuring that independent, particularly politically motivated artists have equal access, enhances the likelihood of this genre of music to be created reducing the present commercial preference for emotive and dance music.
The mode of communication is also a fundamental determinant in the ability to secure free expression to the benefit of democracy. Unlike the closed internet architecture models discussed in the previous post, and while again a matter of degree in each instance, open peer to peer file sharing networks, particularly those written with open source code, offer no limitations to participation and unlimited file formats. Whilst the issue of digital rights management for individual files is not directly prevented by this model, typically it has been the case that unprotected files have been uploaded to open networks. If the remuneration of artists were to be facilitated on open networks there would more than likely be a need to track downloads or streams in some way, for example, through the use of non-invasive watermarks or other software. The non profit nature of the structure would therefore aid in limiting the incentives to implement digital rights management technology to the extent used in closed networks, allowing far greater reception, interpretation and mediation of culture.
The independence of the expression of creators would also be ensured to a far greater degree if an advertising model were adopted within a democratic/non private structure. There would also be less incentive to exclude or favour particular advertisers and the potential to allocate a quantity of advertising space to non profit or socially beneficial endeavours.
Conclusion
In the end the adoption of ad supported business models may not be identical for each music service presently in place or developed into the future. Nonetheless there are conditions in which political music and a diversity of culture will thrive over others. Left to the interests of powerful corporations it is far more likely that the potential for creativity, free speech and democracy will not be realised. Some parallels may be drawn with the implications of commercial television compared with the more liberal programming of public television. In order to enhance the quality of music and to create the conditions in which deliberative democracy can take place, there must be equity between creators, an open communication model and expression independent of the overbearing influence of capitalism.
Further Reading
ArsTechnica, Report: ad-supported content will soon dominate digital media (5 May 2008) <http://arstechnica.com/news.ars/post/20080505-report-ad-support-content-will-soon-dominate-digital-media.html> at 6 May 2008
TechDirt, Advertising is Content; Content is Advertising (19 March 2008)
<http://www.techdirt.com/articles/20080318/004136567.shtml> at 6 May 2008
TechDirt, Content Is Advertising... On TV (23 April 2008) <http://www.techdirt.com/articles/20080422/022513915.shtml> at 26 April 2008
Digital Music News, We're Number Three: SpiralFrog Claims Third-Place Download Crown (28 March 2008) <http://www.digitalmusicnews.com/stories/032708three> at 30 March 2008
CNet News, Ad-supported SpiralFrog finally launches music site (7 August 2007) <http://news.com.com/2100-1025_3-6201315.html> at 12 August 2007
Digital Music News, SpiralFrog Grabs $2 Million...With Serious Strings Attached (2 January 2008) <http://www.digitalmusicnews.com/stories/010207spiralfrog> at 11 January 2008
Digital Music News, MySpace Scores Gold Record (In Ad-Supported Terms) (24 March 2008) <http://www.digitalmusicnews.com/stories/032308pennywise> at 26 March 2008
Digital Music News, Back from the Brink: Qtrax Licensing Deals Emerge (3 March 2008) <http://www.digitalmusicnews.com/stories/030308qtrax> at 5 March 2008
Digital Music News, Details Bubbling on Major-Backed, Ad-Supported Venture (19 February 2008) <http://www.digitalmusicnews.com/stories/021708ad> at 21 February 2008
Digital Music News, Gabriel Pumps Serious Cash Into Ad-Supported Startup (22 January 2008) <http://www.digitalmusicnews.com/stories/012008gabriel> at 30 January 2008
William Fisher III, Promises To Keep (2004) <http://www.amazon.com/Promises-Keep-Technology-Entertainment-Stanford/dp/080475845X/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1210219722&sr=8-1> at 5 May 2008
Christopher J Sichok, The Free Market: An Erosion of Free Speech, eLaw - Murdoch University Electronic Journal of Law, Volume 7 Number 3 (September 2000) <http://www.murdoch.edu.au/elaw/issues/v7n3/sichok73.html> at 6 May 2008
Wikipedia, Deliberative Democracy (7 February 2008)
<http://en.wikipedia.org/wiki/Deliberative_democracy> at 6 May 2008
Wikipedia, Public Television (25 April 2008)
<http://en.wikipedia.org/wiki/Public_television> at 6 May 2008
Free Press <http://freepress.net/> at 6 May 2008
Wednesday, May 7, 2008
Ad Supported Music – Part 1
In a recent digital media survey concerning ad supported, subscription and pay per play business models, 62% of senior media executives stated an expectation that content creators will develop ad-supported business models by 2013. Twenty-five percent considered content creators would focus on subscription-based models and only 11% favoured pay-per-play services. While this survey did not specifically consider the pay per download model, the anticipation of an increase in adoption of ad supported services reflects current trends within the music industry and is a reasonable prediction. With this is mind it is pertinent to consider the ways in which such a model could develop, with the potential for both positive and negative attributes.
Traditional notions of free speech suggest that public spaces enable a market place of ideas which further the ends of liberty and justice. This conception of free speech depends on three vital assumptions – active public participation facilitated by equality in access for speakers; the mode of communication and its influence on audiences, and the independence of the opinions of speakers. The degree to which these attributes exist in the digital music environment reflects the potential opportunities for, or impediments to, free expression.
In this post I will outline some of the conditions least likely to realise the benefits cyberspace offers. In a follow up post I will counter this discussion with an outline of the ways that ad supported business models could be used to produce conditions favourable to creators and society.
The Worst Case Scenario
The use of advertising to supplement or replace direct consumer payments for music could have detrimental consequences if developed without adequate foresight. Where ad supported music services are owned privately and operated on a for-profit basis there are inevitably implications for free expression and democracy. These manifest primarily in a negative way by reducing the equality of access to speakers, in the selection of communication models and by influencing the content of creations. At present there is already a low level of competition within the legitimate digital music market. The natural tendency of capitalist corporations is to consolidate through mergers and in the event that a reasonable level of competition could not be maintained between web services, there would again be further threats to the diversity of culture, free speech and democracy.
In evaluating the ability of creators to equally access digital music services, the position of independent artists is of fundamental importance. Artists should have equal opportunity to communicate their works to the public and the same opportunities to produce financial rewards. Where such web services are related to major record labels there is an extremely high possibility that independents will not be given equal treatment. Even if such web services are owned and run separately from major content providers, the profit seeking motive of a private enterprise may nonetheless be enough to create a similar level of favouritism. This could occur in direct ways through limiting the participation of unsigned artists altogether or through indirect ways such as the allocation of prominent spaces, reviews and other promotional activities in an unfair manner.
The internet itself is a communication mode separate and distinguishable from others such as the mass media. Within this mode of communication a number of architectural models can be employed. For-profit, private music services are more likely to engage closed architectures. These include structures such as streaming subscription services, digital media stores and closed peer to peer networks. Whilst a continuum and matter of degree in each instance, a closed architecture by definition limits the ability of creators and consumers to participate by imposing requirements such as formal identification, entry payments and limiting the range of file formats. In addition to this, restrictions on the life span and subsequent uses of the content through the use of digital rights management technology influences the reception, interpretation and mediation of expression.
Another important factor in evaluating the ability for ad supported music services to achieve these goals is the independence of opinions expressed by creators. Two important factors are the strength of the connection between individual artists and commercial sponsorship, and the content of the advertising itself.
If implemented in a way that created direct sponsorship arrangements with individual artists, the use of advertising to supplement or replace the income of creators could amount to a level of commercialism within the music industry not seen even today. While many consider the present concentration of major record labels as harmful, by directly tying commercial sponsorship to the production of music and remuneration of artists, there would be a further constriction of free expression. If on the other hand, ad supported business models were connected only to the internet based music services themselves, there may be less influence over the content of creations and artists that are rewarded.
The nature of advertisements available on such web services also raises an interesting issue. It is feasible to suggest that whilst such services could cater to an enormous range of sponsors, that any site with a critical level of popularity will attract specific and demanding corporate advertisers. The size and the placement of the advertisements may be one factor to consider but the content and the nature of the advertisers is also a central concern. As Mike Masnick of TechDirt writes, advertising is a form of content just as content is a form of advertising.
Where corporate interests determine what music is produced and which artists will succeed, this inevitably results in a lack of cultural diversity and an absence of political or thought provoking material. This leads to less social and political awareness, therefore reducing civil participation and progress.
Further Reading
ArsTechnica, Report: ad-supported content will soon dominate digital media (5 May 2008) <http://arstechnica.com/news.ars/post/20080505-report-ad-support-content-will-soon-dominate-digital-media.html> at 6 May 2008
TechDirt, Advertising is Content; Content is Advertising (19 March 2008)
<http://www.techdirt.com/articles/20080318/004136567.shtml> at 6 May 2008
TechDirt, Content Is Advertising... On TV (23 April 2008) <http://www.techdirt.com/articles/20080422/022513915.shtml> at 26 April 2008
TechDirt, On Content, Promotions, Basic Economics... And Loutish Statements (25 March 2008) <http://www.techdirt.com/articles/20080324/000718629.shtml> at 27 March 2008
TechDirt, Just Because Content Is Free Doesn't Mean It's Worthless (15 April 2008) <http://www.techdirt.com/articles/20080411/153919828.shtml> at 17 April 2008
Digital Music News, We're Number Three: SpiralFrog Claims Third-Place Download Crown (28 March 2008) <http://www.digitalmusicnews.com/stories/032708three> at 30 March 2008
Wired Listening Post, Qtrax Inks Deal With Universal for Legal P2P Music (6 May 2008) <http://blog.wired.com/music/2008/05/qtrax-inks-deal.html> at 7 May 2008
Christopher J Sichok, The Free Market: An Erosion of Free Speech, eLaw - Murdoch University Electronic Journal of Law, Volume 7 Number 3 (September 2000) <http://www.murdoch.edu.au/elaw/issues/v7n3/sichok73.html> at 6 May 2008
Traditional notions of free speech suggest that public spaces enable a market place of ideas which further the ends of liberty and justice. This conception of free speech depends on three vital assumptions – active public participation facilitated by equality in access for speakers; the mode of communication and its influence on audiences, and the independence of the opinions of speakers. The degree to which these attributes exist in the digital music environment reflects the potential opportunities for, or impediments to, free expression.
In this post I will outline some of the conditions least likely to realise the benefits cyberspace offers. In a follow up post I will counter this discussion with an outline of the ways that ad supported business models could be used to produce conditions favourable to creators and society.
The Worst Case Scenario
The use of advertising to supplement or replace direct consumer payments for music could have detrimental consequences if developed without adequate foresight. Where ad supported music services are owned privately and operated on a for-profit basis there are inevitably implications for free expression and democracy. These manifest primarily in a negative way by reducing the equality of access to speakers, in the selection of communication models and by influencing the content of creations. At present there is already a low level of competition within the legitimate digital music market. The natural tendency of capitalist corporations is to consolidate through mergers and in the event that a reasonable level of competition could not be maintained between web services, there would again be further threats to the diversity of culture, free speech and democracy.
In evaluating the ability of creators to equally access digital music services, the position of independent artists is of fundamental importance. Artists should have equal opportunity to communicate their works to the public and the same opportunities to produce financial rewards. Where such web services are related to major record labels there is an extremely high possibility that independents will not be given equal treatment. Even if such web services are owned and run separately from major content providers, the profit seeking motive of a private enterprise may nonetheless be enough to create a similar level of favouritism. This could occur in direct ways through limiting the participation of unsigned artists altogether or through indirect ways such as the allocation of prominent spaces, reviews and other promotional activities in an unfair manner.
The internet itself is a communication mode separate and distinguishable from others such as the mass media. Within this mode of communication a number of architectural models can be employed. For-profit, private music services are more likely to engage closed architectures. These include structures such as streaming subscription services, digital media stores and closed peer to peer networks. Whilst a continuum and matter of degree in each instance, a closed architecture by definition limits the ability of creators and consumers to participate by imposing requirements such as formal identification, entry payments and limiting the range of file formats. In addition to this, restrictions on the life span and subsequent uses of the content through the use of digital rights management technology influences the reception, interpretation and mediation of expression.
Another important factor in evaluating the ability for ad supported music services to achieve these goals is the independence of opinions expressed by creators. Two important factors are the strength of the connection between individual artists and commercial sponsorship, and the content of the advertising itself.
If implemented in a way that created direct sponsorship arrangements with individual artists, the use of advertising to supplement or replace the income of creators could amount to a level of commercialism within the music industry not seen even today. While many consider the present concentration of major record labels as harmful, by directly tying commercial sponsorship to the production of music and remuneration of artists, there would be a further constriction of free expression. If on the other hand, ad supported business models were connected only to the internet based music services themselves, there may be less influence over the content of creations and artists that are rewarded.
The nature of advertisements available on such web services also raises an interesting issue. It is feasible to suggest that whilst such services could cater to an enormous range of sponsors, that any site with a critical level of popularity will attract specific and demanding corporate advertisers. The size and the placement of the advertisements may be one factor to consider but the content and the nature of the advertisers is also a central concern. As Mike Masnick of TechDirt writes, advertising is a form of content just as content is a form of advertising.
Where corporate interests determine what music is produced and which artists will succeed, this inevitably results in a lack of cultural diversity and an absence of political or thought provoking material. This leads to less social and political awareness, therefore reducing civil participation and progress.
Further Reading
ArsTechnica, Report: ad-supported content will soon dominate digital media (5 May 2008) <http://arstechnica.com/news.ars/post/20080505-report-ad-support-content-will-soon-dominate-digital-media.html> at 6 May 2008
TechDirt, Advertising is Content; Content is Advertising (19 March 2008)
<http://www.techdirt.com/articles/20080318/004136567.shtml> at 6 May 2008
TechDirt, Content Is Advertising... On TV (23 April 2008) <http://www.techdirt.com/articles/20080422/022513915.shtml> at 26 April 2008
TechDirt, On Content, Promotions, Basic Economics... And Loutish Statements (25 March 2008) <http://www.techdirt.com/articles/20080324/000718629.shtml> at 27 March 2008
TechDirt, Just Because Content Is Free Doesn't Mean It's Worthless (15 April 2008) <http://www.techdirt.com/articles/20080411/153919828.shtml> at 17 April 2008
Digital Music News, We're Number Three: SpiralFrog Claims Third-Place Download Crown (28 March 2008) <http://www.digitalmusicnews.com/stories/032708three> at 30 March 2008
Wired Listening Post, Qtrax Inks Deal With Universal for Legal P2P Music (6 May 2008) <http://blog.wired.com/music/2008/05/qtrax-inks-deal.html> at 7 May 2008
Christopher J Sichok, The Free Market: An Erosion of Free Speech, eLaw - Murdoch University Electronic Journal of Law, Volume 7 Number 3 (September 2000) <http://www.murdoch.edu.au/elaw/issues/v7n3/sichok73.html> at 6 May 2008
Monday, May 5, 2008
Composition Complications
One of the central themes of my research (and this weblog) is the need to find the balance between creating incentives which attract and reward creators of the highest quality, and providing reasonable access to works for the public, in order to achieve the optimum level of social and political participation. A recent court ruling with respect to music streamed over the internet and a pending determination by the Copyright Royalty Board regarding mechanical royalties for recordings, are important contemporary issues which will influence the quality of music into the future.
Professor Terry (William) Fisher, developed an excellent diagram illustrating the revenue stream in the music industry in 2004 -see: Promises To Keep (2004) <http://cyber.law.harvard.edu/people/tfisher/PTKChapter6.pdf> at 5 May 2008, Chapter 6 page 10. The transition of the licensing and royalty system to the digital environment has not been easy. When record companies license digital media stores to sell downloads they negotiate a whole sale rate and pass on mechanical royalties through the Harry Fox agency to music publishers. Litigation last year clarified that permanent downloads do not attract a performance royalty. A webcaster on the other hand must pay a blanket license to ASCAP/BMI/SESAC as well as a performance license to the record company via SoundExchange. At present streaming music services are required to pay a blanket license but industry wide negotiations for the mechanical rate have not yet been conducted.
While the need for streaming music services to pay a blanket license has not been in question, in some instances there have been difficulties in negotiating and determining the rate at which this is to be paid. Last week the U.S. District Court for the Southern District of New York ruled that Yahoo!, AOL and Real Networks were required to pay a blanket license to ASCAP. The rate set by the court was 2.5% of advertising revenue after costs backdated to 2002 and payable until 2009. ASCAP represents 320,000 members who stand to gain in the vicinity of $100 million from this decision. Interestingly, the rate set by the court is higher than that for terrestrial radio stations who, with more advertisements and non music content, are only required to pay 2% of advertising revenue. In addition to holding that online services stream more songs in an hour than traditional forms of radio, the court also noted tactics used by these services to reduce the amount of money payable to songwriters, including the strategic placement of ads on separate pages from the streaming software. This decision may be appealed in the coming months.
Earlier this year hearings began before the Copyright Royalty Board regarding the royalty liability for streaming music services. As explained in the introductory statements presented to the Copyright Royalty Board by the National Music Publishers’ Association (NMPA), the existing industry wide agreement for mechanical royalties which is currently open to negotiation, only extends to per track sales of digital music:
As part of the 1997 Agreement, the parties agreed, on a non-precedential basis, to propose rates for so called permanent downloads but did not address the rates for other digital uses, such as “limited downloads” and “interactive streams”. At the time, the market for the digital distribution of music was in its infancy and the Copyright Owners had no empirical or economic evidence that would have enabled them to value accurately the future of digital distribution of music.
The National Music Publishers’ Association has presented its case for the greater of: 12.5% of total revenue from streaming services or 27½% of the total content costs for compositions and musical recordings or a formula based on a rate per use or per minute of playing time.
The hearings before the Copyright Royalty Board also address the present mechanical royalty rate for sound recordings sold as permanent and limited downloads by digital media stores, in physical form and ringtones. The National Music Publishers’ Association has argued that the rate of 9 cents per track (13% of the wholesale price) from the sale of permanent downloads and physical formats is insufficient given the reduction in income to composers with the decline in CD sales, suggesting that 12.5 cents per digital track or a formula based on per minute of playing time, would better reflect the contribution made by songwriters and create the incentives needed to attract quality composers. Both the Recording Industry Association of America and the Digital Music Association, in contrast, are expected to suggest that this rate is too high with RIAA arguing that 5 to 6 cents per track (8% of the wholesale price) would provide sufficient income to composers, and DiMA suggesting the rate should be lower again.
The rebuttal phase of the trial is due to start tomorrow with a final determination from the Copyright Royalty Board regarding both of these issues due in early October 2008.
It is important to distinguish the nature and role of songwriters and publishers from recording artists and record labels. While many recording artists may also be songwriters this is not always the case - over a period of time the association has become more nebulous and some would suggest that the increased ability to select recording artists based on marketability rather than skill has been a significant factor in the deterioration of the content of mainstream music. Publishers, whilst agents for composers as record labels are for recordings artists, more generally provide a greater share of royalties to the creator and do not have the same degree of influence over the content of creations. Unlike record labels, publishers also have a lot to gain from a transition to a collective licensing model for file sharing. To date publishers have taken a less active role in litigating against file sharing operators and users, however for now they continue to lobby for stronger copyright laws and greater resources for enforcement.
In a paper titled The Engine of Free Expression: Copyright on the Internet the NMPA make valid arguments regarding the need to ensure that a professional sector of creators can support themselves from their art and the importance of effective licensing schemes. However, they also argue that licenses for recorded music should be optional and that where a license is refused by a record label works should not be used. This is a self defeating and unrealistic approach in the digital age. The NMPA would serve the interests of its members more effectively by acknowledging the impossibility of creating conditions of artificial scarcity and endorsing an approach that seeks to maximise the opportunities for licensing.
In questioning why it is that such an organisation would adopt this approach there are a number of influential factors to consider. The need to maintain an affiliation with the recording industry is one such factor with many of the members of the NMPA also being recording artists or dependent on recording artists to create revenue. The recording industry also have a much greater concentration of funds with which to lobby for laws which may not be achievable if songwriters and publishers were left to lobby on their own. This counterproductive approach is therefore more likely to be brought about by a desire to maintain powerful allies than the need to prevent the development of new technologies, particularly distribution networks, which if done pragmatically would allow for far greater diversity, quality and consumption of compositions and the continued remuneration of songwriters.
It will be interesting to follow the Copyright Royalty Boards hearings throughout the year and to reflect on the potential impact of the determination on the quality of composers and works produced into the future. At some stage one may also hope that organisations representing songwriters can acknowledge the need to adopt strategies more conducive to the digital environment.
Further Reading
The Register, Songwriters score victory over AOL, Yahoo! and Real Pay up (1 May 2008)<http://www.theregister.co.uk/2008/05/01/ascap_aol_real_yahoo/> at 2 May 2008
TechDirt, District Court Tells Yahoo, AOL To Pay Millions To Songwriters (1 May 2008) <http://www.techdirt.com/articles/20080501/020611996.shtml> at 2 May 2008
CNet News, Court: Online services must pay up for song use (1 May 2008) <http://www.news.com/8301-10784_3-9933398-7.html> at 2 May 2008
Digital Music News, Court Determines ASCAP Rates for Yahoo, AOL, RealNetworks (30 April 2008) <http://www.digitalmusicnews.com/stories/043008ascap> at 2 May 2008
The Wall Street Journal, Court Sets Royalty Fees To Be Paid to ASCAP (30 April 2008) <http://online.wsj.com/article/SB120959909400857751.html> at 2 May 2008
Digital Music News, Harry Fox Still Writing Good Checks; $394 Million In '08 (18 March 2008) <http://www.digitalmusicnews.com/stories/031708hfa> at 23 March 2008
Digital Music News, Mechanical Licensing Battle Royale Gets Started (6 February 2008) <http://www.digitalmusicnews.com/stories/020508mechanical> at 19 February 2008
ZeroPaid, RIAA Wants Songwriter Royalties Cut by 39% (6 February 2008) <http://www.zeropaid.com/news/9245/RIAA+Wants+Songwriter+Royalties+Cut+by+39%25%3F> at 7 February 2008
TechDirt, Royalty Agreements Holding Up Necessary Change In The Music Industry (5 February 2008) <http://www.techdirt.com/articles/20080203/230509164.shtml> at 7 February 2008
ArsTechnica, Artists' best interests? RIAA presses for lower royalties (5 February 2008) <http://arstechnica.com/news.ars/post/20080205-riaa-dima-want-to-slash-songwriter-royalties-for-digital-music.html> at 7 February 2008
Digital Music News, Latest Standoff Pits Publishers Against Subscription Services (8 January 2008) <http://www.digitalmusicnews.com/stories/010808standoff> at 11 January 2008
William Fisher III, Promises To Keep (2004) <http://cyber.law.harvard.edu/people/tfisher/PTKChapter6.pdf> at 5 May 2008
NMPA, The Engine of Free Expression: Copyright on the Internet (no date given)
<http://www.nmpa.org/music101/copyrights.asp> at 5 May 2006
In the Matter of Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding, Docket No. 2006-3 CRB-DPRA, The Written Direct Statement, Witness Statements & Exhibits of National Music Publishers’ Association, Inc., The Songwriters Guild of America, and the Nashville Songwriters Association International, Volume 1 (10 April 2007) <http://www.loc.gov/crb/proceedings/2006-3/nmpa-written-vol1-amended.pdf> at 5 May 2008
The Hollywood Reporter/Billboard, ASCAP blue after royalty ruling (26 April 2007) <http://www.hollywoodreporter.com/hr/content_display/business/news/e3i036db8c219c8d65727dba62722b35b39> at 30 April 2007
Digital Music News, Judge Rules Against Download Performance Royalty (25 April 2007) <http://digitalmusicnews.com/stories/042507perf/view> at 27 April 2007
The Register, Court sez music downloads aren't performances (26 April 2007) <http://www.theregister.co.uk/2007/04/26/music_downloads_not_performances/> at 27 April 2007
TechDirt, It Takes A Court To Explain That Downloads Aren't Public Performances? (26 April 2007) <http://www.techdirt.com/articles/20070425/225921.shtml> at 27 April 2007
Digital Music News, Online Music Stores Protest Additional Download Royalties (28 February 2007) <http://www.digitalmusicnews.com/stories/022807dima> at 4 March 2007
Professor Terry (William) Fisher, developed an excellent diagram illustrating the revenue stream in the music industry in 2004 -see: Promises To Keep (2004) <http://cyber.law.harvard.edu/people/tfisher/PTKChapter6.pdf> at 5 May 2008, Chapter 6 page 10. The transition of the licensing and royalty system to the digital environment has not been easy. When record companies license digital media stores to sell downloads they negotiate a whole sale rate and pass on mechanical royalties through the Harry Fox agency to music publishers. Litigation last year clarified that permanent downloads do not attract a performance royalty. A webcaster on the other hand must pay a blanket license to ASCAP/BMI/SESAC as well as a performance license to the record company via SoundExchange. At present streaming music services are required to pay a blanket license but industry wide negotiations for the mechanical rate have not yet been conducted.
While the need for streaming music services to pay a blanket license has not been in question, in some instances there have been difficulties in negotiating and determining the rate at which this is to be paid. Last week the U.S. District Court for the Southern District of New York ruled that Yahoo!, AOL and Real Networks were required to pay a blanket license to ASCAP. The rate set by the court was 2.5% of advertising revenue after costs backdated to 2002 and payable until 2009. ASCAP represents 320,000 members who stand to gain in the vicinity of $100 million from this decision. Interestingly, the rate set by the court is higher than that for terrestrial radio stations who, with more advertisements and non music content, are only required to pay 2% of advertising revenue. In addition to holding that online services stream more songs in an hour than traditional forms of radio, the court also noted tactics used by these services to reduce the amount of money payable to songwriters, including the strategic placement of ads on separate pages from the streaming software. This decision may be appealed in the coming months.
Earlier this year hearings began before the Copyright Royalty Board regarding the royalty liability for streaming music services. As explained in the introductory statements presented to the Copyright Royalty Board by the National Music Publishers’ Association (NMPA), the existing industry wide agreement for mechanical royalties which is currently open to negotiation, only extends to per track sales of digital music:
As part of the 1997 Agreement, the parties agreed, on a non-precedential basis, to propose rates for so called permanent downloads but did not address the rates for other digital uses, such as “limited downloads” and “interactive streams”. At the time, the market for the digital distribution of music was in its infancy and the Copyright Owners had no empirical or economic evidence that would have enabled them to value accurately the future of digital distribution of music.
The National Music Publishers’ Association has presented its case for the greater of: 12.5% of total revenue from streaming services or 27½% of the total content costs for compositions and musical recordings or a formula based on a rate per use or per minute of playing time.
The hearings before the Copyright Royalty Board also address the present mechanical royalty rate for sound recordings sold as permanent and limited downloads by digital media stores, in physical form and ringtones. The National Music Publishers’ Association has argued that the rate of 9 cents per track (13% of the wholesale price) from the sale of permanent downloads and physical formats is insufficient given the reduction in income to composers with the decline in CD sales, suggesting that 12.5 cents per digital track or a formula based on per minute of playing time, would better reflect the contribution made by songwriters and create the incentives needed to attract quality composers. Both the Recording Industry Association of America and the Digital Music Association, in contrast, are expected to suggest that this rate is too high with RIAA arguing that 5 to 6 cents per track (8% of the wholesale price) would provide sufficient income to composers, and DiMA suggesting the rate should be lower again.
The rebuttal phase of the trial is due to start tomorrow with a final determination from the Copyright Royalty Board regarding both of these issues due in early October 2008.
It is important to distinguish the nature and role of songwriters and publishers from recording artists and record labels. While many recording artists may also be songwriters this is not always the case - over a period of time the association has become more nebulous and some would suggest that the increased ability to select recording artists based on marketability rather than skill has been a significant factor in the deterioration of the content of mainstream music. Publishers, whilst agents for composers as record labels are for recordings artists, more generally provide a greater share of royalties to the creator and do not have the same degree of influence over the content of creations. Unlike record labels, publishers also have a lot to gain from a transition to a collective licensing model for file sharing. To date publishers have taken a less active role in litigating against file sharing operators and users, however for now they continue to lobby for stronger copyright laws and greater resources for enforcement.
In a paper titled The Engine of Free Expression: Copyright on the Internet the NMPA make valid arguments regarding the need to ensure that a professional sector of creators can support themselves from their art and the importance of effective licensing schemes. However, they also argue that licenses for recorded music should be optional and that where a license is refused by a record label works should not be used. This is a self defeating and unrealistic approach in the digital age. The NMPA would serve the interests of its members more effectively by acknowledging the impossibility of creating conditions of artificial scarcity and endorsing an approach that seeks to maximise the opportunities for licensing.
In questioning why it is that such an organisation would adopt this approach there are a number of influential factors to consider. The need to maintain an affiliation with the recording industry is one such factor with many of the members of the NMPA also being recording artists or dependent on recording artists to create revenue. The recording industry also have a much greater concentration of funds with which to lobby for laws which may not be achievable if songwriters and publishers were left to lobby on their own. This counterproductive approach is therefore more likely to be brought about by a desire to maintain powerful allies than the need to prevent the development of new technologies, particularly distribution networks, which if done pragmatically would allow for far greater diversity, quality and consumption of compositions and the continued remuneration of songwriters.
It will be interesting to follow the Copyright Royalty Boards hearings throughout the year and to reflect on the potential impact of the determination on the quality of composers and works produced into the future. At some stage one may also hope that organisations representing songwriters can acknowledge the need to adopt strategies more conducive to the digital environment.
Further Reading
The Register, Songwriters score victory over AOL, Yahoo! and Real Pay up (1 May 2008)<http://www.theregister.co.uk/2008/05/01/ascap_aol_real_yahoo/> at 2 May 2008
TechDirt, District Court Tells Yahoo, AOL To Pay Millions To Songwriters (1 May 2008) <http://www.techdirt.com/articles/20080501/020611996.shtml> at 2 May 2008
CNet News, Court: Online services must pay up for song use (1 May 2008) <http://www.news.com/8301-10784_3-9933398-7.html> at 2 May 2008
Digital Music News, Court Determines ASCAP Rates for Yahoo, AOL, RealNetworks (30 April 2008) <http://www.digitalmusicnews.com/stories/043008ascap> at 2 May 2008
The Wall Street Journal, Court Sets Royalty Fees To Be Paid to ASCAP (30 April 2008) <http://online.wsj.com/article/SB120959909400857751.html> at 2 May 2008
Digital Music News, Harry Fox Still Writing Good Checks; $394 Million In '08 (18 March 2008) <http://www.digitalmusicnews.com/stories/031708hfa> at 23 March 2008
Digital Music News, Mechanical Licensing Battle Royale Gets Started (6 February 2008) <http://www.digitalmusicnews.com/stories/020508mechanical> at 19 February 2008
ZeroPaid, RIAA Wants Songwriter Royalties Cut by 39% (6 February 2008) <http://www.zeropaid.com/news/9245/RIAA+Wants+Songwriter+Royalties+Cut+by+39%25%3F> at 7 February 2008
TechDirt, Royalty Agreements Holding Up Necessary Change In The Music Industry (5 February 2008) <http://www.techdirt.com/articles/20080203/230509164.shtml> at 7 February 2008
ArsTechnica, Artists' best interests? RIAA presses for lower royalties (5 February 2008) <http://arstechnica.com/news.ars/post/20080205-riaa-dima-want-to-slash-songwriter-royalties-for-digital-music.html> at 7 February 2008
Digital Music News, Latest Standoff Pits Publishers Against Subscription Services (8 January 2008) <http://www.digitalmusicnews.com/stories/010808standoff> at 11 January 2008
William Fisher III, Promises To Keep (2004) <http://cyber.law.harvard.edu/people/tfisher/PTKChapter6.pdf> at 5 May 2008
NMPA, The Engine of Free Expression: Copyright on the Internet (no date given)
<http://www.nmpa.org/music101/copyrights.asp> at 5 May 2006
In the Matter of Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding, Docket No. 2006-3 CRB-DPRA, The Written Direct Statement, Witness Statements & Exhibits of National Music Publishers’ Association, Inc., The Songwriters Guild of America, and the Nashville Songwriters Association International, Volume 1 (10 April 2007) <http://www.loc.gov/crb/proceedings/2006-3/nmpa-written-vol1-amended.pdf> at 5 May 2008
The Hollywood Reporter/Billboard, ASCAP blue after royalty ruling (26 April 2007) <http://www.hollywoodreporter.com/hr/content_display/business/news/e3i036db8c219c8d65727dba62722b35b39> at 30 April 2007
Digital Music News, Judge Rules Against Download Performance Royalty (25 April 2007) <http://digitalmusicnews.com/stories/042507perf/view> at 27 April 2007
The Register, Court sez music downloads aren't performances (26 April 2007) <http://www.theregister.co.uk/2007/04/26/music_downloads_not_performances/> at 27 April 2007
TechDirt, It Takes A Court To Explain That Downloads Aren't Public Performances? (26 April 2007) <http://www.techdirt.com/articles/20070425/225921.shtml> at 27 April 2007
Digital Music News, Online Music Stores Protest Additional Download Royalties (28 February 2007) <http://www.digitalmusicnews.com/stories/022807dima> at 4 March 2007
Sunday, May 4, 2008
PRO-IP Act
A few days ago it was reported that the House of Representatives Judiciary Committee has passed an amended version of the H.R. 4279: PRO-IP Act (Prioritizing Resources and Organization for Intellectual Property Act). The PRO-IP Act surfaced at the end of 2007 seeking to enhance civil and criminal intellectual property enforcement, including copyright infringements.
The Bill includes provisions designed to create a new position, the Office of the United States Intellectual Property Enforcement Representative (USIPER) appointed by the President and confirmed by the Senate. Reporting directly to Cabinet, this person would supervise much of the enforcement activities currently undertaken by the Department of Justice. The Bill also allows for increases to maximum penalties for those with prior convictions, as well as the seizure and disposal of equipment used to infringe intellectual property rights, with funds being directed back into the budget of the Department of Justice. Proposed changes to the ‘one work’ rule used to determine statutory damages for copyright infringement have been removed at this stage.
The nature and content of the legislation illustrates the combined lobbying power of the copyright, pharmaceutical and manufacturing sector. Dan Glickman of the MPAA stated on the introduction of the Bill:
From counterfeit medicine and fake automobile parts to pirated movies and knockoff handbags, the ill-effects of intellectual property theft are felt across many sectors of the U.S. economy. I am pleased to see a concerted effort by Congress to address this growing problem, and the MPAA looks forward to working with congressional leaders in the weeks to come.
From a public choice perspective the creation of a specific position within the White House to supervise the enforcement of intellectual property laws blurs the distinction between public and private governance. An appointee to a position of this nature would most likely have prior associations with influential corporate interests raising questions as to the potential consequences for democracy. Whilst it has been suggested that such a role would not involve policy development or influence decisions relating to prosecutions, there remains a strong likelihood that this will take place if not in a formal sense then in a subversive and largely unaccountable manner. Sigal Mandelker, Deputy Assistant Attorney General, told the House Judiciary subcommittee on Courts, the Internet, and Intellectual Property:
We are always going to be concerned when you have somebody at the White House who may be in the position of directing our enforcement or what cases we do or don't do... That would be contrary to the long-standing tradition of the department making independent decisions regarding law enforcement.
The establishment of ten attaché embassy staff to work on intellectual property enforcement issues in other countries, further serves the goals of private interests.
Further Reading
ZeroPaid, New Legislation Would Increase Penalties for Copyright Infringement (8 December 2007) <http://www.zeropaid.com/news/9133/New+Legislation+Would+Increase+Penalties+for+Copyright+Infringement> at 12 December 2007
CNet News, Proposed new piracy penalties advance in House (30 April 2008) <http://www.news.com/8301-10784_3-9932260-7.html?tag=nefd.top> at 2 May 2008
TechDirt, Can Someone Explain Why The White House Should Be Playing The Role Of Copyright Cop? (1 May 2008) <http://www.techdirt.com/articles/20080430/194141989.shtml> at 2 May 2008b
Washingtonpost, House Bill to Create Anti-Piracy Czar Advances (1 May 2008) <http://www.washingtonpost.com/wp-dyn/content/article/2008/04/30/AR2008043003360.html> at 2 May 2008
Yahoo News, DOJ Blasts New 'Copyright Czar' Bill (13 December 2007) <http://news.yahoo.com/s/zd/20071213/tc_zd/221645> at 18 December 2007
Wasingtonpost, House Bill to Create Anti-Piracy Czar Advances (1 May 2008) <http://www.washingtonpost.com/wp-dyn/content/article/2008/04/30/AR2008043003360.html> at 2 May 2008
The Bill includes provisions designed to create a new position, the Office of the United States Intellectual Property Enforcement Representative (USIPER) appointed by the President and confirmed by the Senate. Reporting directly to Cabinet, this person would supervise much of the enforcement activities currently undertaken by the Department of Justice. The Bill also allows for increases to maximum penalties for those with prior convictions, as well as the seizure and disposal of equipment used to infringe intellectual property rights, with funds being directed back into the budget of the Department of Justice. Proposed changes to the ‘one work’ rule used to determine statutory damages for copyright infringement have been removed at this stage.
The nature and content of the legislation illustrates the combined lobbying power of the copyright, pharmaceutical and manufacturing sector. Dan Glickman of the MPAA stated on the introduction of the Bill:
From counterfeit medicine and fake automobile parts to pirated movies and knockoff handbags, the ill-effects of intellectual property theft are felt across many sectors of the U.S. economy. I am pleased to see a concerted effort by Congress to address this growing problem, and the MPAA looks forward to working with congressional leaders in the weeks to come.
From a public choice perspective the creation of a specific position within the White House to supervise the enforcement of intellectual property laws blurs the distinction between public and private governance. An appointee to a position of this nature would most likely have prior associations with influential corporate interests raising questions as to the potential consequences for democracy. Whilst it has been suggested that such a role would not involve policy development or influence decisions relating to prosecutions, there remains a strong likelihood that this will take place if not in a formal sense then in a subversive and largely unaccountable manner. Sigal Mandelker, Deputy Assistant Attorney General, told the House Judiciary subcommittee on Courts, the Internet, and Intellectual Property:
We are always going to be concerned when you have somebody at the White House who may be in the position of directing our enforcement or what cases we do or don't do... That would be contrary to the long-standing tradition of the department making independent decisions regarding law enforcement.
The establishment of ten attaché embassy staff to work on intellectual property enforcement issues in other countries, further serves the goals of private interests.
Further Reading
ZeroPaid, New Legislation Would Increase Penalties for Copyright Infringement (8 December 2007) <http://www.zeropaid.com/news/9133/New+Legislation+Would+Increase+Penalties+for+Copyright+Infringement> at 12 December 2007
CNet News, Proposed new piracy penalties advance in House (30 April 2008) <http://www.news.com/8301-10784_3-9932260-7.html?tag=nefd.top> at 2 May 2008
TechDirt, Can Someone Explain Why The White House Should Be Playing The Role Of Copyright Cop? (1 May 2008) <http://www.techdirt.com/articles/20080430/194141989.shtml> at 2 May 2008b
Washingtonpost, House Bill to Create Anti-Piracy Czar Advances (1 May 2008) <http://www.washingtonpost.com/wp-dyn/content/article/2008/04/30/AR2008043003360.html> at 2 May 2008
Yahoo News, DOJ Blasts New 'Copyright Czar' Bill (13 December 2007) <http://news.yahoo.com/s/zd/20071213/tc_zd/221645> at 18 December 2007
Wasingtonpost, House Bill to Create Anti-Piracy Czar Advances (1 May 2008) <http://www.washingtonpost.com/wp-dyn/content/article/2008/04/30/AR2008043003360.html> at 2 May 2008
Saturday, May 3, 2008
More Updates
There has been some developments with a few of the issues I have posted on recently so I thought just to add a few links here for those wishing to read more:
1. In Tune
Following the release of a ten minute clip by MIPI in which some Australian artists discuss the difficulties they face in the music industry today, one of those interviewed has raised concerns about his inclusion in the anti-piracy film. Lindsay McDougall of the punk group Frenzal Rhomb stated he was "completely taken out of context and defamed" by the inclusion of his statements, indicating that had did not support the major labels claims against file sharing networks and users:
"I would never be part of this big record industry funded campaign to crush illegal downloads... I think it's bullshit, I think it's record companies crying poor and I don't agree with it."
The concerns I raised about this and other education campaigns directed at children are also relevant to recent reports that a children’s charity Childnet is to be used as the vehicle for the distribution of an IFPI anti-piracy publication in 21 countries.
2. From Little Things Big Things Grow
I also wrote recently about a new single released in Australia following the official apology to the Stolen Generation. The Get Up campaign was to make the song a hit and this week it debuted at number 4 on the ARIA singles chart and number 2 on the digital downloads chart. Inspired by the Yes We Can song and clip released as part of the Barack Obama US Presidential campaign, the executive director of Get Up, Brett Solomon stated:
"One of the things it shows is that a song with a message and substance is rewarded in the charts equally as much as pop and froth."
Of course, as I have posted in the past, sales are not in themselves an indication of the authenticity of a track, however as the money from the sale of the single is being directed back into the reconciliation movement this achievement does reflect support for the cause within the wider Australian community. As noted by Get Up, these sales were achieved without the assistance of the massive marketing campaign usually associated with high selling singles.
3. Making Available
There has been some very interesting developments since my earlier post on the Elektra v Barker case in the United States. In that case the court considered arguments by the recording industry that simply making a file available in a shared folder, accessible on a file sharing network, was sufficient to establish copyright infringement. The court concluded that this amounted to an offer to distribute, that the terms distribution and publication as used in the Copyright Act were interchangeable and thus a case of this nature could be brought.
More recently in the case of Atlantic v Howell however, a court denied summary judgement to the recording industry, stating:
The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public... Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution.
The EFF reports that the court held downloads conducted by Media Sentry, the investigators engaged by the recording industry, do not demonstrate that the files were illegally distributed. While this case is yet to go to trial and this aspect of the case will no doubt be appealed, the decision is another step in the move to challenge the litigation strategy of the recording industry.
This follows the Tanya Anderson case where the court approved expert examination of Anderson’s computer only to discover no evidence of piracy. The recording industry were effectively forced to withdraw their claims and costs of $300,000 were awarded against them.
4. Spinning DJs
A further report on the triple J’s Hack Program regarding the new license from ARIA for DJs to format shift music for gigs was also released during the week. Stephen Peach of ARIA declined an invitation to speak about the licence however another DJ was interviewed, raising further concerns. Brenda (DJ) raised the added complication of record labels asking DJs to download promotional mp3s to play at clubs and the legalities of then burning those downloads to CDs.
Whislt I consider it highly unlikely that a case would be brought simply on the basis of unlicensed promotional music this does raise an added complication for those seeking to use promotional music in clubs. It highlights the difficulties in policing the use of music in this way and when considered in the light of the need for DJs to also hold a license from APRA and the per person charges placed on venues where the music is played, disregards the long term benefits to artists and record labels in having their music played to the public and the ability for this to lead to further sales.
For more information on these issues and to catch up on developments in others, see the monthly post to Open Content Australia – http://www.ocaustralia.blogspot.com .
Further Reading
TechDirt, Recording Industry Funds Charity To Run Its Latest Brainwashing Program (2 May 2008) <http://www.techdirt.com/articles/20080430/090922985.shtml> at 3 May 2008
BBC News, Charity advice on music downloads (30 April 2008) <http://news.bbc.co.uk/2/hi/technology/7375621.stm> at 3 May 2008
TechDirt, Musician Claims He Was Tricked Into Appearing In Anti-Piracy Video (1 May 2008) <http://www.techdirt.com/articles/20080501/035740998.shtml> at 2 May 2008
Sydney Morning Herald, Musician 'duped' into anti-piracy video (1 May 2008) <http://www.smh.com.au/articles/2008/04/30/1209234943373.html> at 2 May 2008
New York Times, In Australia, From Apology, a Hit Song Grows (29 April 2008)
<http://www.nytimes.com/2008/04/29/world/asia/29australia.html?_r=2&ref=world&oref=slogin&oref=slogin> at 3 May 2008
Sydney Morning Herald, Rudd, Keating and crew storm pop charts (29 April 2008) <http://www.smh.com.au/news/music/rudd-keating-and-crew-storm-pop-charts/2008/04/28/1209234762143.html> at 3 May 2008
CNet News, Court rejects RIAA's 'making available' piracy argument (29 April 2008) <http://www.news.com/8301-10784_3-9932004-7.html> at 2 May 2008
TechDirt, Court Rejects RIAA's 'Making Available' Theory In Infamous Howell Case (29 April 2008) <http://www.techdirt.com/articles/20080429/125025979.shtml> at 2 May 2008
EFF Deeplinks, Big Victory in Atlantic v. Howell: Court Rejects RIAA "Making Available" Theory (29 April 2008) <http://www.eff.org/deeplinks/2008/04/big-victory-atlantic-v-howell-court-rejects-making> at 30 April 2008
ArsTechnica, Judge deals another blow to RIAA's making available theory (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-judge-deals-another-blow-to-riaas-making-available-theory.html> at 30 April 2008
BusinessWeek, Does She Look Like a Music Pirate? (24 April 2008) <http://www.businessweek.com/print/magazine/content/08_18/b4082042959954.htm> at 30 April 2008
Triple J, Hack (30 April 2008) <http://mpegmedia.abc.net.au/triplej/hack/daily/hack_wed_2008_04_30.mp3> at 3 May 2008
1. In Tune
Following the release of a ten minute clip by MIPI in which some Australian artists discuss the difficulties they face in the music industry today, one of those interviewed has raised concerns about his inclusion in the anti-piracy film. Lindsay McDougall of the punk group Frenzal Rhomb stated he was "completely taken out of context and defamed" by the inclusion of his statements, indicating that had did not support the major labels claims against file sharing networks and users:
"I would never be part of this big record industry funded campaign to crush illegal downloads... I think it's bullshit, I think it's record companies crying poor and I don't agree with it."
The concerns I raised about this and other education campaigns directed at children are also relevant to recent reports that a children’s charity Childnet is to be used as the vehicle for the distribution of an IFPI anti-piracy publication in 21 countries.
2. From Little Things Big Things Grow
I also wrote recently about a new single released in Australia following the official apology to the Stolen Generation. The Get Up campaign was to make the song a hit and this week it debuted at number 4 on the ARIA singles chart and number 2 on the digital downloads chart. Inspired by the Yes We Can song and clip released as part of the Barack Obama US Presidential campaign, the executive director of Get Up, Brett Solomon stated:
"One of the things it shows is that a song with a message and substance is rewarded in the charts equally as much as pop and froth."
Of course, as I have posted in the past, sales are not in themselves an indication of the authenticity of a track, however as the money from the sale of the single is being directed back into the reconciliation movement this achievement does reflect support for the cause within the wider Australian community. As noted by Get Up, these sales were achieved without the assistance of the massive marketing campaign usually associated with high selling singles.
3. Making Available
There has been some very interesting developments since my earlier post on the Elektra v Barker case in the United States. In that case the court considered arguments by the recording industry that simply making a file available in a shared folder, accessible on a file sharing network, was sufficient to establish copyright infringement. The court concluded that this amounted to an offer to distribute, that the terms distribution and publication as used in the Copyright Act were interchangeable and thus a case of this nature could be brought.
More recently in the case of Atlantic v Howell however, a court denied summary judgement to the recording industry, stating:
The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public... Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution.
The EFF reports that the court held downloads conducted by Media Sentry, the investigators engaged by the recording industry, do not demonstrate that the files were illegally distributed. While this case is yet to go to trial and this aspect of the case will no doubt be appealed, the decision is another step in the move to challenge the litigation strategy of the recording industry.
This follows the Tanya Anderson case where the court approved expert examination of Anderson’s computer only to discover no evidence of piracy. The recording industry were effectively forced to withdraw their claims and costs of $300,000 were awarded against them.
4. Spinning DJs
A further report on the triple J’s Hack Program regarding the new license from ARIA for DJs to format shift music for gigs was also released during the week. Stephen Peach of ARIA declined an invitation to speak about the licence however another DJ was interviewed, raising further concerns. Brenda (DJ) raised the added complication of record labels asking DJs to download promotional mp3s to play at clubs and the legalities of then burning those downloads to CDs.
Whislt I consider it highly unlikely that a case would be brought simply on the basis of unlicensed promotional music this does raise an added complication for those seeking to use promotional music in clubs. It highlights the difficulties in policing the use of music in this way and when considered in the light of the need for DJs to also hold a license from APRA and the per person charges placed on venues where the music is played, disregards the long term benefits to artists and record labels in having their music played to the public and the ability for this to lead to further sales.
For more information on these issues and to catch up on developments in others, see the monthly post to Open Content Australia – http://www.ocaustralia.blogspot.com .
Further Reading
TechDirt, Recording Industry Funds Charity To Run Its Latest Brainwashing Program (2 May 2008) <http://www.techdirt.com/articles/20080430/090922985.shtml> at 3 May 2008
BBC News, Charity advice on music downloads (30 April 2008) <http://news.bbc.co.uk/2/hi/technology/7375621.stm> at 3 May 2008
TechDirt, Musician Claims He Was Tricked Into Appearing In Anti-Piracy Video (1 May 2008) <http://www.techdirt.com/articles/20080501/035740998.shtml> at 2 May 2008
Sydney Morning Herald, Musician 'duped' into anti-piracy video (1 May 2008) <http://www.smh.com.au/articles/2008/04/30/1209234943373.html> at 2 May 2008
New York Times, In Australia, From Apology, a Hit Song Grows (29 April 2008)
<http://www.nytimes.com/2008/04/29/world/asia/29australia.html?_r=2&ref=world&oref=slogin&oref=slogin> at 3 May 2008
Sydney Morning Herald, Rudd, Keating and crew storm pop charts (29 April 2008) <http://www.smh.com.au/news/music/rudd-keating-and-crew-storm-pop-charts/2008/04/28/1209234762143.html> at 3 May 2008
CNet News, Court rejects RIAA's 'making available' piracy argument (29 April 2008) <http://www.news.com/8301-10784_3-9932004-7.html> at 2 May 2008
TechDirt, Court Rejects RIAA's 'Making Available' Theory In Infamous Howell Case (29 April 2008) <http://www.techdirt.com/articles/20080429/125025979.shtml> at 2 May 2008
EFF Deeplinks, Big Victory in Atlantic v. Howell: Court Rejects RIAA "Making Available" Theory (29 April 2008) <http://www.eff.org/deeplinks/2008/04/big-victory-atlantic-v-howell-court-rejects-making> at 30 April 2008
ArsTechnica, Judge deals another blow to RIAA's making available theory (29 April 2008) <http://arstechnica.com/news.ars/post/20080429-judge-deals-another-blow-to-riaas-making-available-theory.html> at 30 April 2008
BusinessWeek, Does She Look Like a Music Pirate? (24 April 2008) <http://www.businessweek.com/print/magazine/content/08_18/b4082042959954.htm> at 30 April 2008
Triple J, Hack (30 April 2008) <http://mpegmedia.abc.net.au/triplej/hack/daily/hack_wed_2008_04_30.mp3> at 3 May 2008
Thursday, May 1, 2008
Spinning DJs
I wrote recently of the new requirement for DJs to obtain a license to format shift music for use in nightclubs. I heard an interview this week from the TripleJ Hack Program where Michael Akin spoke with a Sydney DJ, Sleater Brockman, about the $800 license fee and the response from those in the industry.
Further Information
Triple J: Hack, DJ's rebels against music industry (29 March 2008) <http://www.abc.net.au/triplej/hack/notes/s2230819.htm> at 1 May 2008
Further Information
Triple J: Hack, DJ's rebels against music industry (29 March 2008) <http://www.abc.net.au/triplej/hack/notes/s2230819.htm> at 1 May 2008
Digital Rights Manipulation
Once again the disadvantages of DRM have become apparent. Recently Microsoft announced its intention to cease supporting those who have purchased music from the old Microsoft Music Store. As quoted by ArsTechnica, MSN Entertainment and Video Services general manager Rob Bennett announced:
As of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers... You will need to obtain a license key for each of your songs downloaded from MSN Music on any new computer, and you must do so before August 31, 2008. If you attempt to transfer your songs to additional computers after August 31, 2008, those songs will not successfully play.
The limitations of DRM are well documented with the ability of users to enjoy goods they have legitimately purchased severely undermined. Not only are users unable to enjoy legal rights that are normally allowed, such as fair use/fair dealing and the ability to resell their digital purchases, but when a form of DRM becomes redundant they are no longer able to use the product in the already limited way in which it came. In an open letter to Microsoft yesterday the EFF outlined the steps that should be taken to reduce the impact on consumers, including:
[I]ssuing a public apology, providing refunds or replacement music files, and launching a substantial publicity campaign to make sure all customers know their options... EFF's letter also calls on Microsoft to eliminate DRM from its Zune music service now -- or at least to publicly commit to compensating future customers for the inevitable future DRM debacles.
The major labels have stated an intention to no longer use DRM on digital files but there is little evidence in real space that this is taking place on a wide scale . This is particularly problematic as the percentage of digital sales continues to increase. Yesterday the RIAA 2007 End of Year Shipment Statistics indicated that digital sales now account for 23% of all music sales in the United States, up from 16.1% in 2006 and 9% in 2005. Indicative of views around the world, a UK survey from August 2007 found that 61 percent of consumers said that DRM "invades the rights of the music consumer to hear their music on different platforms." Another 49 percent considered it to be a "nuisance," and 39 percent were worried about privacy implications of the technology.
Privacy issues related to DRM include, at their most obvious, the use of RootKits which when used by Sony allowed for unauthorised and undetected reporting of usage data as well as creating security vulnerabilities for the computers on which the files were used. What many consumers may not be aware of, is that the so called ‘DRM Free’ music available from many digital music stores today, continues to use a form of digital rights management called ‘watermarking’. In many instances files that are sold under the banner of being DRM Free hide the purchase data of the user in the fabric of thefile and can still be traced. In other cases it is just the file itself which can be traced to determine the frequency of uploads to file sharing networks for use as evidence when lobbying for stronger laws.
Microsoft’s recent announcement is really just another example of the legislature's failure to provide adequate consumer protection measures by enacting laws which do not require the music and technology industries to consider the social implications of their business methods and models.
Further Reading
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
EFF, Betrayed MSN Music Customers Deserve More from Microsoft (29 April 2008) <http://www.eff.org/press/archives/2008/04/28> at 1 May 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
RIAA, 2007 End Year Shipment Statistics (April 2008) <http://76.74.24.142/81128FFD-028F-282E-1CE5-FDBF16A46388.pdf> at 30 April 2008
FreedomToTinker, Apple Offers to Sell DRM-Free Music (7 February 2007) <http://www.freedom-to-tinker.com/?p=1117> at 14 February 2007
p2pnet.net, Steve Jobs' DRM master-stroke (2 April 2007) <http://p2pnet.net/story/11850> at 3 April 2007
Digital Music News, The DRM-Free Drag... Why a Broader Rollout Remains Elusive (2 April 2008) <http://www.digitalmusicnews.com/stories/040208drm/> at 8 April 2008
Digital Music News, Industry Breathes DRM-Free Oxygen, Considers Next Steps (3 January 2008) <http://www.digitalmusicnews.com/stories/010607panel> at 11 January 2008
TechDirt, One More Time: DRM Doesn't Enable Anything, Except User Frustration (23 February 2007) <http://www.techdirt.com/articles/20070222/073026.shtml> at 26 February 2007
ArsTechnia, Paper: disregard for customers, DMCA led to Sony CD rootkit (17 December 2007) <http://arstechnica.com/news.ars/post/20071217-paper-disregard-for-customers-dmca-led-to-sony-cd-rootkit.html> a 18 December 2007
TechDirt, Sony BMG's Rootkit Violated Federal Law; Company Agrees To Pay To Fix Damaged Computers (30 January 2007) <http://www.techdirt.com/articles/20070130/154001.shtml> at 2 February 2007
ArsTechnia, Canadian Privacy Commissioner: Just say no to intrusive DRM (20 January 2008) <http://arstechnica.com/news.ars/post/20080120-canadian-privacy-commissioner-just-say-no-to-intrusive-drm.html> at 31 January 2008
Slyck, CIPPIC Studies Privacy Implications of DRM (25 September 2007) <http://www.slyck.com/story1589_CIPPIC_Studies_Privacy_Implications_of_DRM> at 18 December 2007
Digital Music News, Privacy Concerns Surface Following iTunes Plus Launch (30 May 2007) <http://www.digitalmusicnews.com/stories/053007info> at 16 June 2007
BBC News, 'Personal data' in iTunes tracks (1 June 2007) <http://news.bbc.co.uk/2/hi/technology/6711215.stm> at 16 June 2007
TechDirt, iTunes Plus: Minus DRM, But Plus Price And Tracking Info (31 May 2007) <http://www.techdirt.com/articles/20070530/230342.shtml> at 16 June 2007
Digital Music News, Universal Layering Watermarks Into DRM-Free Downloads (13 August 2007) <http://www.digitalmusicnews.com/stories/081307uni> at 19 August 2007
Wired, DRM Is Dead, But Watermarks Rise From Its Ashes (11 January 2008)<http://www.wired.com/entertainment/music/news/2008/01/sony_music> at 20 January 2008
TechDirt, Digital Watermarks Are Not The Answer (14 January 2008) <http://www.techdirt.com/articles/20080113/165009.shtml> at 18 January 2008
As of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers... You will need to obtain a license key for each of your songs downloaded from MSN Music on any new computer, and you must do so before August 31, 2008. If you attempt to transfer your songs to additional computers after August 31, 2008, those songs will not successfully play.
The limitations of DRM are well documented with the ability of users to enjoy goods they have legitimately purchased severely undermined. Not only are users unable to enjoy legal rights that are normally allowed, such as fair use/fair dealing and the ability to resell their digital purchases, but when a form of DRM becomes redundant they are no longer able to use the product in the already limited way in which it came. In an open letter to Microsoft yesterday the EFF outlined the steps that should be taken to reduce the impact on consumers, including:
[I]ssuing a public apology, providing refunds or replacement music files, and launching a substantial publicity campaign to make sure all customers know their options... EFF's letter also calls on Microsoft to eliminate DRM from its Zune music service now -- or at least to publicly commit to compensating future customers for the inevitable future DRM debacles.
The major labels have stated an intention to no longer use DRM on digital files but there is little evidence in real space that this is taking place on a wide scale . This is particularly problematic as the percentage of digital sales continues to increase. Yesterday the RIAA 2007 End of Year Shipment Statistics indicated that digital sales now account for 23% of all music sales in the United States, up from 16.1% in 2006 and 9% in 2005. Indicative of views around the world, a UK survey from August 2007 found that 61 percent of consumers said that DRM "invades the rights of the music consumer to hear their music on different platforms." Another 49 percent considered it to be a "nuisance," and 39 percent were worried about privacy implications of the technology.
Privacy issues related to DRM include, at their most obvious, the use of RootKits which when used by Sony allowed for unauthorised and undetected reporting of usage data as well as creating security vulnerabilities for the computers on which the files were used. What many consumers may not be aware of, is that the so called ‘DRM Free’ music available from many digital music stores today, continues to use a form of digital rights management called ‘watermarking’. In many instances files that are sold under the banner of being DRM Free hide the purchase data of the user in the fabric of thefile and can still be traced. In other cases it is just the file itself which can be traced to determine the frequency of uploads to file sharing networks for use as evidence when lobbying for stronger laws.
Microsoft’s recent announcement is really just another example of the legislature's failure to provide adequate consumer protection measures by enacting laws which do not require the music and technology industries to consider the social implications of their business methods and models.
Further Reading
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
EFF, Betrayed MSN Music Customers Deserve More from Microsoft (29 April 2008) <http://www.eff.org/press/archives/2008/04/28> at 1 May 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
RIAA, 2007 End Year Shipment Statistics (April 2008) <http://76.74.24.142/81128FFD-028F-282E-1CE5-FDBF16A46388.pdf> at 30 April 2008
FreedomToTinker, Apple Offers to Sell DRM-Free Music (7 February 2007) <http://www.freedom-to-tinker.com/?p=1117> at 14 February 2007
p2pnet.net, Steve Jobs' DRM master-stroke (2 April 2007) <http://p2pnet.net/story/11850> at 3 April 2007
Digital Music News, The DRM-Free Drag... Why a Broader Rollout Remains Elusive (2 April 2008) <http://www.digitalmusicnews.com/stories/040208drm/> at 8 April 2008
Digital Music News, Industry Breathes DRM-Free Oxygen, Considers Next Steps (3 January 2008) <http://www.digitalmusicnews.com/stories/010607panel> at 11 January 2008
TechDirt, One More Time: DRM Doesn't Enable Anything, Except User Frustration (23 February 2007) <http://www.techdirt.com/articles/20070222/073026.shtml> at 26 February 2007
ArsTechnia, Paper: disregard for customers, DMCA led to Sony CD rootkit (17 December 2007) <http://arstechnica.com/news.ars/post/20071217-paper-disregard-for-customers-dmca-led-to-sony-cd-rootkit.html> a 18 December 2007
TechDirt, Sony BMG's Rootkit Violated Federal Law; Company Agrees To Pay To Fix Damaged Computers (30 January 2007) <http://www.techdirt.com/articles/20070130/154001.shtml> at 2 February 2007
ArsTechnia, Canadian Privacy Commissioner: Just say no to intrusive DRM (20 January 2008) <http://arstechnica.com/news.ars/post/20080120-canadian-privacy-commissioner-just-say-no-to-intrusive-drm.html> at 31 January 2008
Slyck, CIPPIC Studies Privacy Implications of DRM (25 September 2007) <http://www.slyck.com/story1589_CIPPIC_Studies_Privacy_Implications_of_DRM> at 18 December 2007
Digital Music News, Privacy Concerns Surface Following iTunes Plus Launch (30 May 2007) <http://www.digitalmusicnews.com/stories/053007info> at 16 June 2007
BBC News, 'Personal data' in iTunes tracks (1 June 2007) <http://news.bbc.co.uk/2/hi/technology/6711215.stm> at 16 June 2007
TechDirt, iTunes Plus: Minus DRM, But Plus Price And Tracking Info (31 May 2007) <http://www.techdirt.com/articles/20070530/230342.shtml> at 16 June 2007
Digital Music News, Universal Layering Watermarks Into DRM-Free Downloads (13 August 2007) <http://www.digitalmusicnews.com/stories/081307uni> at 19 August 2007
Wired, DRM Is Dead, But Watermarks Rise From Its Ashes (11 January 2008)<http://www.wired.com/entertainment/music/news/2008/01/sony_music> at 20 January 2008
TechDirt, Digital Watermarks Are Not The Answer (14 January 2008) <http://www.techdirt.com/articles/20080113/165009.shtml> at 18 January 2008
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