For my thesis I have been re reading three proposals for an alternative to litigation with respect to illegal file sharing. The three models I have been reading about come from Terry Fisher in his text ‘Promises to Keep’, Neil Netanel’s Non Commercial Use Levy and the EFF’s White Paper in this area. While each of these have the potential to realign the digital environment to allow for compensation to artists at the same time as the free sharing of music, each appear to me to have short comings that would result in a difficult implementation.
What I wanted to write about today is what I consider to be the best alternative and in some respects this comes from a mashup of ideas that these three offer. I propose a Compulsory/Voluntary License for music only, with changes to intellectual property law to allow for 3 second or less samples of music.
The Compulsory/Voluntary License I propose to allow for file sharing would see copyright holders being forced to release their works to the public while allowing freedom of choice for consumers. For a small flat monthly fee payable by file sharers they would be offered immunity from litigation for the sharing of music for non commercial purposes. This would ensure that all music is available to listeners at the same time as recouping a significant amount of funds for artists. Digital tracking and/or population sampling would be used to ensure that the funds are distributed to copyright holders based on popularity. Applying to non commercial uses only copyright holders would remain free to negotiate prices for other uses particularly those that relate to the mass media. I propose that the funds be divided up based on popularity however a threshold of downloads would need to be achieved to receive payment. I suggest that a model be introduced that ensure that a greater number of artists receive payment for their music but also that a sector of society remain amateur. Economic modelling would ensure that the funds are divided up in a way that would mimic the market place and as such it would not be possible to remunerate artists for every single download but rather ensure a professional sector of creators receive some concentration of funds.
Furthermore I propose that copyright law be altered to allow for a 3 second sample in either non commercial or commercial works. As a person with a background in law (not music) I am painfully aware of the expense and time that artists must spend accounting for samples they seek to use in new songs. I believe a blanket 3 second rule would alleviate much of the confusion that arises with respect to sampling. A 3 second rule would enable short riffs to be used and could be looped or repeated at will without incurring the need to negotiate licenses. This would provide enormous clarity to what is right now a difficult area of the law. Follow-on creators would have the certainty they need to ensure that their compositions would not attract litigation at the same time as protecting the integrity of the original composition.
These are two of the ideas that are central to the 5th chapter of my thesis and to me appear to be the best way of achieving a balance in the current debate.
Showing posts with label Collective Licensing. Show all posts
Showing posts with label Collective Licensing. Show all posts
Wednesday, November 3, 2010
Sunday, August 2, 2009
Australia’s Digital Economy: Future Directions
I wrote recently about a report released by the Australian Government called: Australia’s Digital Economy: Future Directions and how the Government is considering the positive and negative impacts of three strikes policies. I wrote to Senator Conroy this week outlining the nature and aims of these proposals, provided a summary of the current state of three strikes programs around the world, outlined the reasons as to why this is a counter productive and unnecessary approach and discussed the most appropriate alternative that should be employed instead – a voluntary or compulsory licensing scheme.
Here’s what I wrote about viable alternatives:
The fact remains that there are far better alternatives available to the government and the music industry to ensure that financial rewards remain for the production of content. These include voluntary collective licensing or the blanket licensing of music. Differing primarily in whether consumers and copyright holders are forced to participate, these schemes enable users to pay a flat monthly fee for the unlimited access to music, use technology to track the downloading of songs and use the collected funds to compensate artists for the use of their works. Whilst requiring some development to be introduced, such a scheme would enable the unrestricted exploration of culture, increase competition in the creative sector by providing an even playing field that does not operate in favour of strong media corporations and address all of the concerns raised above.
Proposals have been developed in the United States by the likes of Professor Fisher, Professor Netanel and the Electronic Frontiers Foundations. At present in the United States, Choruss, a corporation set up with connections to Warner Music, are trialling licensing schemes of this nature in colleges. Trails have also been undertaken by Professor Fisher at Harvard University in other countries.
There is real potential to implement a licensing system in Australia. ABS data as at December 2008 states that there are 6,680,000 Australian non dial up subscribers. Applying a monthly tax to these subscribers of $5.31 per month would recoup the entire sales of the Australian Recording Industry Association for 2008 - $425,638,008. Over a 12month period each non dial up connection would go up $63.72. While on the face of it this appears to be a fairly minor increase, other options are also available - this simply represents the maximum cost placed on the maximum number of people.
A broadband levy or licence could also be scaled to accommodate only the loss of income to the record industry. Taking the peak of 2001 where total sales were $647,620,000 and relating this to the total sales for 2008 of $425,638,008 shows a total drop in sales of $221,981,992. To simply recoup the difference, broadband subscriptions would rise by only $2.77 per month. The levy could be adjusted annually to accommodate the changes in lost income and the number of subscribers. As the number of broadband subscribers increases the monthly levy would be reduced.
Another option would be to spread the levy to include dial up services as well and implement a tiered structure. In this scenario, dial up services would increase by as little as $1 per month, reducing the impact on broadband subscribers. While all internet users would be supporting the music industry, those with the faster connections and greater capacity to download music would pay more of the costs.
Tuesday, June 16, 2009
What’s the Deal with Record Labels?
Many of us sit back and wonder why it is that record labels act the way they do. I have written earlier about how the corporations law prevents them from making decisions based on morals and forces them to consider profits above all else. But what are the impacts for musicians and the music?
The Standard Deal
Typically record labels offer ‘standard’ deals to artists (especially the unknown ones) that have unfair and onerous conditions. Many artists, with the exception of those with a very savy manager or significant popularity, walk into a record label’s office prepared to accept any terms they offer. The artist believes that without their support they simply cannot create but the short term gains most often outweigh the long term benefits. Indeed it is not until sometime later, once the contract is in full swing, that they can really assess their needs compared to what they are being offered and by then it is generally too late.
All but the most successful artists are forced to work under terms which are financially unsustainable and grossly unfair, sometimes without access to resources that would help them to produce better music and without the ability to renegotiate.
With the exception of those that have an agreement that would be considered in law to be ‘unconscionable’, there is little that can be done but to find ways around the conditions that have been imposed.
Some artists seek the advice of organisations such as the Musicians Union but the contracts which already underfoot, are strict in their terms and there is little that can be done to negotiate a better deal.
Artists under standard contracts are left with little option but to rely on alternative forms of revenue – this has typically been in the form of concert ticket sales and merchandising which until recently were not part of recording contracts.
Those lucky enough to have a short term contract may have the opportunity to reconsider their options and look around for another label but this process itself is stressful with the old label looking over their shoulder.
For those artists that do have some success and are able to prove their worth, the length of the deal which often has clauses that enable the label to keep extending the current arrangements (option clauses) means they are trapped and must continue to work under the same conditions regardless of whether their needs or abilities have changed.
For others, those that are not as successful, the contracts may still be extended despite the fact that the label has no intention of supporting them in the future and yet they are not able to sign with another label or go out on their own as an independent.
Furthermore, even the most successful artists are forced to make ‘artistic compromises’ – in short this has meant that the labels can refuse to release music that they consider unworthy of financial investment or unlikely to be popular with the masses. For political music this is very problematic with songs deemed too controversial unlikely to be released unless they have an associated marketing angle.
One artist famous for a dispute with his record label is Prince/The Artist Formerly Known As Prince. Prince was in dispute with his record label, Warner Brothers, who had trademarked his name and owned all associated rights to the music marketed under that name. I remember well the jokes that many in the industry made at the time asking why he would pick the Love Symbol and such a silly name. The reason was that his record label could hold him to the contract if he used the name 'Prince'. By changing his name in this way he gained the benefit of both avoiding the terms of the contract he was in while negotiations were taking place and continuing to work based on the reputation he had already built.
However for most artists the results of ‘corporate patronage and indentured servitude’ are catastrophic. They are unable to plan their lives as they do not know from one day to the next what will be happening. They have terms that are financially unsustainable and demanding commitments that they cannot meet. Some struggle to work with the little that they have and others elect non performance. Pure and complete non performance of a contract is a breach of the agreement but by sabotaging themselves - writing poor songs, being unreliable, difficult to work with and generally uncooperative - some artists may be released from their deals. Others are retained, perhaps out of spite, and all lose whatever reputation they have developed to that point. They suffer career paralysis and eventually their popularity dies.
In all circumstances record labels control the recording copyrights and what was done in the past continues to be the property of the record label so the labels continue to reap the profits despite the ongoing frustration of the artist.
Enter the Internet
Up until the last decade this was the fate of the majority of musicians. However the internet has transformed the options for artists. They are much more likely to be able succeed without the support of major labels, for the most part superstar status still depends on it, but many more are able to connect with their fans and give them a reason to buy their music without having to enter into deals that are uncompromising and unfair. Those that were signed to a major label in the past, Nine Inch Nails and Trent Reznor being one such example, are refusing to get back into bed with the record labels knowing that they have the reputation, intelligence and experience which enables them to go forward without the help of others.
Indeed those that are signed to major labels can take advantage of this new form of communication. One recent example of this is DJ Danger Mouse who was prevented from releasing his new album because of a dispute with his record label. Instead he released a CD case with an extensive booklet of photographs and a blank disk, telling consumers to ‘Use It As You Will’ – implying that as the music was available on file sharing networks that they should feel free to download and burn a copy.
Some have stated that the digital environment creates a ‘competition issue’. Those that are familiar with trade practices law will know that many countries attempt to regulate markets to ensure that they do not become too concentrated – in Australia it is the Trade Practices Act 1974 (Cth) while in the USA it is the Sherman Act (1890). (Kazaa unsuccessfully argued anti trust grounds in an early MGM v Grokster decision [1]).
The internet means that record labels are in competition with the entire world. It has the potential to create a much more open marketplace where there is far less control and concentration. While on the one hand this alters the power of record labels to dictate the terms, it also dissipates the potential for artists to penetrate the global market place and for some forms of music, particularly the political, this may have associated consequences.
The New Deal
Record labels have not responded well to the digital environment and the competition that they are now faced with. The tendency has been to do as much as possible to constrict the competition – lawsuits against emerging technology are just one part of this equation – the move to 360 degree contracts where they control every aspect of a musicians career and can make money from all parts of their business has been another.
But not all labels are taking that approach. There are number of record labels, such as Magnatune (‘We’re Not Evil’), that are attempting to work with artists rather than exploit them. This has typically meant less financial investment but greater understanding for the uniqueness of some artists and the need to ensure that they are comfortable with their contractual arrangements. However many artists are scared and do not know enough about these labels to make the change, perhaps more time will help them to see that they do not operate in the same way as the record labels of the past.
What Does it Mean for the Music?
Music is and has always been intangible. It is non rivalrous meaning that it can be duplicated without loss of quality and in infinite quantity. The artificial scarcity that was created by the reduction to material form (the CD) has now largely been replaced with unfettered and cheap supply. It is only natural that music should want to be free, to explore and communicate with as many people as it wants, and yet it remains in an environment where it can be difficult to assess who will permit this and who won’t.
Some, those of the old school, get angry with those that seek to enable the music to live out its intangibility. Some seek to enable the intangibility but fail to consider the implications of the lack of financial support that is needed to sustain a professional sector of creators. Others seek the mid point. They know that there needs to be more freedom and are willing to give it but also seek to create an environment in which the music is able to have some support without being dominated and controlled to the point where it can no longer reach its true potential. Those in this mid ground advocate a collective licensing regime. Whilst requiring detailed planning and foresight it is nonetheless achievable and would make an enourmous difference to the choices that are currently in place.
A collective licensing regime has been advocated by the likes of Netanel [2], Fisher [3], Lessig [4], the Electronic Frontiers Foundation and The Songwriters Association of Canada. Experiments have taken place in countries such as Canada and China (Fisher) and in the USA recent steps have been taken to trial different versions in colleges as a means to reduce illegal file sharing by students (Choruss).
While there is a way to go yet, these developments are both positive and essential. While some forms of music, the emotive and purely entertaining forms, will be produced in most conditions due to their social function, they can be produced to a higher standard under better conditions. Other forms of music, such as political music, require greater attention. This form of music in particular has an important social function but under negative community conditions – capitalism, closed or structurally deterministic architecture, neoclassicist copyright law and prohibitive social norms – it cannot achieve its potential as an agent for social change.
If the major record labels are going to have a place in musicians' lives in the future, they need to act now because they are running out of time. It is impossible to unscramble an egg - things will never return to the way they were before. It is time the labels realised this and got on with helping musicians to achieve their goals.
Further Reading
[1] Metro-Goldwyn-Mayer Studios Inc., et al v Grokster Ltd et al 269 F.Supp. 2d 1213; 2003 U.S. Dist. LEXIS 11329; Copy. L. Rep (CCH) P28,634; 2003-2 Trade Cas. (CCH) P74,081
[2] N W Netanel, ‘Impose a Noncommerical Use Levy to Allow Free P2P File-Swapping and Remixing’ (2003-2004) Harvard Journal of Law & Technology, 1-84
[3] William W. Fisher III, Promises to Keep (2004)
[4] Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004) 301
Musicians Union of Australia <http://www.musicians.asn.au/union/index.html> at 16 June 2009
The Standard Deal
Typically record labels offer ‘standard’ deals to artists (especially the unknown ones) that have unfair and onerous conditions. Many artists, with the exception of those with a very savy manager or significant popularity, walk into a record label’s office prepared to accept any terms they offer. The artist believes that without their support they simply cannot create but the short term gains most often outweigh the long term benefits. Indeed it is not until sometime later, once the contract is in full swing, that they can really assess their needs compared to what they are being offered and by then it is generally too late.
All but the most successful artists are forced to work under terms which are financially unsustainable and grossly unfair, sometimes without access to resources that would help them to produce better music and without the ability to renegotiate.
With the exception of those that have an agreement that would be considered in law to be ‘unconscionable’, there is little that can be done but to find ways around the conditions that have been imposed.
Some artists seek the advice of organisations such as the Musicians Union but the contracts which already underfoot, are strict in their terms and there is little that can be done to negotiate a better deal.
Artists under standard contracts are left with little option but to rely on alternative forms of revenue – this has typically been in the form of concert ticket sales and merchandising which until recently were not part of recording contracts.
Those lucky enough to have a short term contract may have the opportunity to reconsider their options and look around for another label but this process itself is stressful with the old label looking over their shoulder.
For those artists that do have some success and are able to prove their worth, the length of the deal which often has clauses that enable the label to keep extending the current arrangements (option clauses) means they are trapped and must continue to work under the same conditions regardless of whether their needs or abilities have changed.
For others, those that are not as successful, the contracts may still be extended despite the fact that the label has no intention of supporting them in the future and yet they are not able to sign with another label or go out on their own as an independent.
Furthermore, even the most successful artists are forced to make ‘artistic compromises’ – in short this has meant that the labels can refuse to release music that they consider unworthy of financial investment or unlikely to be popular with the masses. For political music this is very problematic with songs deemed too controversial unlikely to be released unless they have an associated marketing angle.
One artist famous for a dispute with his record label is Prince/The Artist Formerly Known As Prince. Prince was in dispute with his record label, Warner Brothers, who had trademarked his name and owned all associated rights to the music marketed under that name. I remember well the jokes that many in the industry made at the time asking why he would pick the Love Symbol and such a silly name. The reason was that his record label could hold him to the contract if he used the name 'Prince'. By changing his name in this way he gained the benefit of both avoiding the terms of the contract he was in while negotiations were taking place and continuing to work based on the reputation he had already built.
However for most artists the results of ‘corporate patronage and indentured servitude’ are catastrophic. They are unable to plan their lives as they do not know from one day to the next what will be happening. They have terms that are financially unsustainable and demanding commitments that they cannot meet. Some struggle to work with the little that they have and others elect non performance. Pure and complete non performance of a contract is a breach of the agreement but by sabotaging themselves - writing poor songs, being unreliable, difficult to work with and generally uncooperative - some artists may be released from their deals. Others are retained, perhaps out of spite, and all lose whatever reputation they have developed to that point. They suffer career paralysis and eventually their popularity dies.
In all circumstances record labels control the recording copyrights and what was done in the past continues to be the property of the record label so the labels continue to reap the profits despite the ongoing frustration of the artist.
Enter the Internet
Up until the last decade this was the fate of the majority of musicians. However the internet has transformed the options for artists. They are much more likely to be able succeed without the support of major labels, for the most part superstar status still depends on it, but many more are able to connect with their fans and give them a reason to buy their music without having to enter into deals that are uncompromising and unfair. Those that were signed to a major label in the past, Nine Inch Nails and Trent Reznor being one such example, are refusing to get back into bed with the record labels knowing that they have the reputation, intelligence and experience which enables them to go forward without the help of others.
Indeed those that are signed to major labels can take advantage of this new form of communication. One recent example of this is DJ Danger Mouse who was prevented from releasing his new album because of a dispute with his record label. Instead he released a CD case with an extensive booklet of photographs and a blank disk, telling consumers to ‘Use It As You Will’ – implying that as the music was available on file sharing networks that they should feel free to download and burn a copy.
Some have stated that the digital environment creates a ‘competition issue’. Those that are familiar with trade practices law will know that many countries attempt to regulate markets to ensure that they do not become too concentrated – in Australia it is the Trade Practices Act 1974 (Cth) while in the USA it is the Sherman Act (1890). (Kazaa unsuccessfully argued anti trust grounds in an early MGM v Grokster decision [1]).
The internet means that record labels are in competition with the entire world. It has the potential to create a much more open marketplace where there is far less control and concentration. While on the one hand this alters the power of record labels to dictate the terms, it also dissipates the potential for artists to penetrate the global market place and for some forms of music, particularly the political, this may have associated consequences.
The New Deal
Record labels have not responded well to the digital environment and the competition that they are now faced with. The tendency has been to do as much as possible to constrict the competition – lawsuits against emerging technology are just one part of this equation – the move to 360 degree contracts where they control every aspect of a musicians career and can make money from all parts of their business has been another.
But not all labels are taking that approach. There are number of record labels, such as Magnatune (‘We’re Not Evil’), that are attempting to work with artists rather than exploit them. This has typically meant less financial investment but greater understanding for the uniqueness of some artists and the need to ensure that they are comfortable with their contractual arrangements. However many artists are scared and do not know enough about these labels to make the change, perhaps more time will help them to see that they do not operate in the same way as the record labels of the past.
What Does it Mean for the Music?
Music is and has always been intangible. It is non rivalrous meaning that it can be duplicated without loss of quality and in infinite quantity. The artificial scarcity that was created by the reduction to material form (the CD) has now largely been replaced with unfettered and cheap supply. It is only natural that music should want to be free, to explore and communicate with as many people as it wants, and yet it remains in an environment where it can be difficult to assess who will permit this and who won’t.
Some, those of the old school, get angry with those that seek to enable the music to live out its intangibility. Some seek to enable the intangibility but fail to consider the implications of the lack of financial support that is needed to sustain a professional sector of creators. Others seek the mid point. They know that there needs to be more freedom and are willing to give it but also seek to create an environment in which the music is able to have some support without being dominated and controlled to the point where it can no longer reach its true potential. Those in this mid ground advocate a collective licensing regime. Whilst requiring detailed planning and foresight it is nonetheless achievable and would make an enourmous difference to the choices that are currently in place.
A collective licensing regime has been advocated by the likes of Netanel [2], Fisher [3], Lessig [4], the Electronic Frontiers Foundation and The Songwriters Association of Canada. Experiments have taken place in countries such as Canada and China (Fisher) and in the USA recent steps have been taken to trial different versions in colleges as a means to reduce illegal file sharing by students (Choruss).
While there is a way to go yet, these developments are both positive and essential. While some forms of music, the emotive and purely entertaining forms, will be produced in most conditions due to their social function, they can be produced to a higher standard under better conditions. Other forms of music, such as political music, require greater attention. This form of music in particular has an important social function but under negative community conditions – capitalism, closed or structurally deterministic architecture, neoclassicist copyright law and prohibitive social norms – it cannot achieve its potential as an agent for social change.
If the major record labels are going to have a place in musicians' lives in the future, they need to act now because they are running out of time. It is impossible to unscramble an egg - things will never return to the way they were before. It is time the labels realised this and got on with helping musicians to achieve their goals.
Further Reading
[1] Metro-Goldwyn-Mayer Studios Inc., et al v Grokster Ltd et al 269 F.Supp. 2d 1213; 2003 U.S. Dist. LEXIS 11329; Copy. L. Rep (CCH) P28,634; 2003-2 Trade Cas. (CCH) P74,081
[2] N W Netanel, ‘Impose a Noncommerical Use Levy to Allow Free P2P File-Swapping and Remixing’ (2003-2004) Harvard Journal of Law & Technology, 1-84
[3] William W. Fisher III, Promises to Keep (2004)
[4] Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004) 301
ArsTechnica, Canadian artists' new/old plan: $5 to share music legally (24 March 2009) <http://arstechnica.com/tech-policy/news/2009/03/canadian-songwriters-plan-5-to-share-music-legally.ars> at 29 March 2009
Electronic Frontiers Foundation, File Sharing: It’s Music to our Ears, Making p2p Pay Artists (2004) <http://www.eff.org/share/compensation.php> at 12 April 2006
EFF Deeplinks, More on Choruss, Pro and Con (20 March 2009) <http://www.eff.org/deeplinks/2009/03/more-choruss-pro-and-con> at 11 April 2009
EFF Deeplinks, Danger Mouse Releases a Blank CD-R (18 May 2009) <http://www.eff.org/deeplinks/2009/05/danger-mouse-inducem> at 29 May 2009
Future of Music Coalition, Major Label Contract Clause Critique (2001) <http://www.futureofmusic.org/contractcrit.cfm> at 16 June 2009
OpenContentAustraliaResearchReview, Capitalism and the Alcoholism of the Music Industry (18 May 2009) <http://ocarr.blogspot.com/2009/05/capitalism-and-alcoholism-of-music.html> at 16 June 2009
Open Content Australia, Year in Review: Recording Contracts (18 December 2008) <http://ocarr.blogspot.com/2008/12/year-in-review-recording-contracts.html > at 16 June 2009
TechDirt, My Keynote At The (RIAA Sponsored) Leadership Music Digital Summit (30 April 2009) <http://www.techdirt.com/articles/20090422/0407024607.shtml> at 3 May 2009
TechDirt, U2 Manager: Free Is The Enemy Of Good; And It's Moral To Protect Old Business Models (29 May 2009) <http://www.techdirt.com/articles/20090528/1919455049.shtml> at 31 May 2009
Testimony of William W. Fisher III before theSubcommittee on 21st Century Competitiveness Committee on Education and the WorkforceHearing on: The Internet and the College Campus: How the Entertainment Industry and Higher Education are Working to Combat Illegal Piracy (26 September 2006) <http://www.house.gov/ed_workforce/hearings/109th/21st/piracy092606/fisher.htm> at 17 October 2006
The Dues, “Record Earning” Deemed Oxymoronic (Issue 9 Vol 1) March 2006 <http://www.musicians.asn.au/ezine/archives/issue9/page2.html> at 16 June 2009
The Dues, How to Make it To The Top and Still End Up in Debt (Issue 2 Vol 1) <http://www.musicians.asn.au/ezine/archives/issue2/> at 16 June 2009
Wikipedia, Prince (musician) (14 June 2009) <http://en.wikipedia.org/wiki/Prince_(musician)> at 16 June 2009
Good Copy Bad Copy<http://www.goodcopybadcopy.net/> at 22 April 2008
Musicians Union of Australia <http://www.musicians.asn.au/union/index.html> at 16 June 2009
Saturday, March 14, 2009
Choruss - Jim Griffin
Check out the slide show by Jim Griffin regarding the proposed licensing scheme for file sharing on college campuses in the USA.
The intention is to implement a voluntary licensing scheme which does not required amendments to copyright law nor government intervention. Similarly Griffin does not propose that the fees paid for legal downloading should be applied on a compulsory basis, rather intending to offer opt-in, opt-out and all-in options. However, Choruss's focus is not solely on the legalisation of p2p file sharing - Griffin refers to this as a mere side effect - the aim of the proposal is to ensure monetisation of the digital music industry which includes other digital architectures in addition to p2p.
Interestingly he notes that in introducing a voluntary collective licensing scheme that mathematical perfection is impossible but that a reasonably fair division of funds can take place.
He states that it would be impossible, short of a compulsory license, for Choruss to prevent all future DMCA notices - partially because it will only apply to audio and also because it will only concern artists and labels that have agreed to cooperate. Major record labels are said to be negotiating however not all arists or labels will sign up to the scheme. They hope to have a test in place from Fall 2009 to Fall 2010.
Developments in technology mean that it is now far easier to count and compensate for the sharing of music than to filter exchanges and prevent it. Griffin concludes by noting that 'control' should not be the ultimate aim of the music industry.
While admirable in intention, as usual, there seems to be more questions than answers (check out the chat forum on the side of the slide show). The presentation goes for 1 hour.
Further Reading
Educause, Choruss: A New Business Model for Digital Music (3 March 2009) <https://admin.na3.acrobat.com/_a729300474/p72627963/> at 14 March 2009
The intention is to implement a voluntary licensing scheme which does not required amendments to copyright law nor government intervention. Similarly Griffin does not propose that the fees paid for legal downloading should be applied on a compulsory basis, rather intending to offer opt-in, opt-out and all-in options. However, Choruss's focus is not solely on the legalisation of p2p file sharing - Griffin refers to this as a mere side effect - the aim of the proposal is to ensure monetisation of the digital music industry which includes other digital architectures in addition to p2p.
Interestingly he notes that in introducing a voluntary collective licensing scheme that mathematical perfection is impossible but that a reasonably fair division of funds can take place.
He states that it would be impossible, short of a compulsory license, for Choruss to prevent all future DMCA notices - partially because it will only apply to audio and also because it will only concern artists and labels that have agreed to cooperate. Major record labels are said to be negotiating however not all arists or labels will sign up to the scheme. They hope to have a test in place from Fall 2009 to Fall 2010.
Developments in technology mean that it is now far easier to count and compensate for the sharing of music than to filter exchanges and prevent it. Griffin concludes by noting that 'control' should not be the ultimate aim of the music industry.
While admirable in intention, as usual, there seems to be more questions than answers (check out the chat forum on the side of the slide show). The presentation goes for 1 hour.
Further Reading
Educause, Choruss: A New Business Model for Digital Music (3 March 2009) <https://admin.na3.acrobat.com/_a729300474/p72627963/> at 14 March 2009
Sunday, November 2, 2008
Lessons from the Google Book Search settlement
I have been very interested to read the commentary around the Google Book Search agreement – particularly the arrangements to be put in place to track and monitor the use of works.
The ‘Books Rights Registry’ will enable authors to determine whether or not their books can be scanned with portions made available for searching. It is in essence an agreement to a collective license with protections in place for the preservation of the public domain.
Lessig Notes:
The agreement calls for the creation of a registry to be operated by a nonprofit corporation. That corporation will be governed by a board comprised of publishers and "authors" (meaning authors participating in the law suit).
And according to Silicon Valley:
Google will pay about $34.5 million to establish the registry... About 63 percent of the revenue Google earns from its book-search program will go to the registry to be divvied up among rights-holding authors and publishers. It will also pay the authors' and publishers' attorney fees.
The creation of a non profit registry for rights management with respect to literary publications is a big step forward for the long term management of books within the digital environment. For many years Lawrence Lessig and many others have been arguing that the law relating to copyright creates an inefficient property system largely due to the fact that there is no central registry of copyright holders.
In his most recent text, Remix, Lessig reflects on the social norms historically associated with the use of text – quoting with citation. He suggests that in the coming years all culture will be ‘bookified’ – that is that social norms which have already begun to emerge will enhance the expectation of all individuals to reuse and quote from culture.
One can well imagine the benefits that would flow from having a central repository of all copyright holders for all forms of expression. Enabling a system of rights registration would facilitate the process of gaining clearances, reduce litigation and enhance the ability of artists and follow on creators to more easily negotiate the uses and availability of works.
In my recent presentation relating to political music I reflected on the need for a central repository or archive and the need for integration to improve the exposure, consumption and use of oppositional audible culture. I also argued for the establishment of a non profit association to carry out these goals. The Google Book Search agreement could prove to be an excellent model worthy of examining as an analogy.
Further Reading
Lessig Blog, On the Google Book Search Agreement (29 October 2008) <http://lessig.org/blog/2008/10/on_the_google_book_search_agre.html> at 2 November 2008
Lessig, Remix (2008)
<http://remix.lessig.org/> at 2 November 2008
Silicon Valley, Authors, publishers settle copyright suit against Google (29 October 2008) <http://www.siliconvalley.com/ci_10843684?nclick_check=1> at 2 November 2008
The Register, Google settles Book Search suit for $125m (28 October 2008) <http://www.theregister.co.uk/2008/10/28/google_settles_book_suit/> at 2 November 2008
The ‘Books Rights Registry’ will enable authors to determine whether or not their books can be scanned with portions made available for searching. It is in essence an agreement to a collective license with protections in place for the preservation of the public domain.
Lessig Notes:
The agreement calls for the creation of a registry to be operated by a nonprofit corporation. That corporation will be governed by a board comprised of publishers and "authors" (meaning authors participating in the law suit).
And according to Silicon Valley:
Google will pay about $34.5 million to establish the registry... About 63 percent of the revenue Google earns from its book-search program will go to the registry to be divvied up among rights-holding authors and publishers. It will also pay the authors' and publishers' attorney fees.
The creation of a non profit registry for rights management with respect to literary publications is a big step forward for the long term management of books within the digital environment. For many years Lawrence Lessig and many others have been arguing that the law relating to copyright creates an inefficient property system largely due to the fact that there is no central registry of copyright holders.
In his most recent text, Remix, Lessig reflects on the social norms historically associated with the use of text – quoting with citation. He suggests that in the coming years all culture will be ‘bookified’ – that is that social norms which have already begun to emerge will enhance the expectation of all individuals to reuse and quote from culture.
One can well imagine the benefits that would flow from having a central repository of all copyright holders for all forms of expression. Enabling a system of rights registration would facilitate the process of gaining clearances, reduce litigation and enhance the ability of artists and follow on creators to more easily negotiate the uses and availability of works.
In my recent presentation relating to political music I reflected on the need for a central repository or archive and the need for integration to improve the exposure, consumption and use of oppositional audible culture. I also argued for the establishment of a non profit association to carry out these goals. The Google Book Search agreement could prove to be an excellent model worthy of examining as an analogy.
Further Reading
Lessig Blog, On the Google Book Search Agreement (29 October 2008) <http://lessig.org/blog/2008/10/on_the_google_book_search_agre.html> at 2 November 2008
Lessig, Remix (2008)
<http://remix.lessig.org/> at 2 November 2008
Silicon Valley, Authors, publishers settle copyright suit against Google (29 October 2008) <http://www.siliconvalley.com/ci_10843684?nclick_check=1> at 2 November 2008
The Register, Google settles Book Search suit for $125m (28 October 2008) <http://www.theregister.co.uk/2008/10/28/google_settles_book_suit/> at 2 November 2008
Monday, October 27, 2008
REMIX: Lessig
I have just finished reading the book REMIX by Lawrence Lessig. This is thought to be his last book on intellectual property law/internet/culture issues.
Lessig introduces the text by considering the war on piracy and the collateral damage that is evident from the strategies of the major players in the content industry. While endorsing the existence of copyright law he argues for essential changes to take place to ensure that balance is achieved and future generations are not criminalised for what they perceive to be reasonable uses of culture. He urges us to step back and to assess the impact of policies and to take account of the both the need for, and likelihood of success, rather than assuming that legislative constraints are the most appropriate solution.
Lessig analyses culture as being either RO (read only) or RW (read write). He begins by examining cultures of the past with the oral tradition of singing and community interaction with culture prior to the advent of modern technology. He observes that developments such as the phonogram, player piano, radio, cassettes, CDs, televisions, VCRs, DVDs etc changed the experience of culture from RW to RO. In doing so there was a loss of tradition, amateurism, creativity and technique. He states that new technologies promise to enable society to return to a RW culture.
He explains that it is not a matter of selecting between two extremes – the internet vs hollywood; RW vs RO; the future vs the past, gains vs losses – but rather that both RO and RW culture can be extended by new technologies and that businesses which incorporate both are likely to emerge. He states that it should not be a matter of preserving RO culture at the expense of RW culture but that all should be encouraged to develop.
He acknowledges that there is part of culture that is created by professionals that we simply consume. Technology has enabled industries to develop with an emphasis on professional creation – the limitations in copying using analogue technology and support from the law prevented individuals from creating and reproducing recorded works. Now, with the advent of digital technology, any person can reproduce culture – it is not impossible but it is illegal.
He refers to the conditions that have always been present for writing – that quoting with citation has always been allowed and that there is an expectation of being able to lend texts from libraries - and argues that all culture will be ‘bookified’ this century. That is to say that we will develop norms around all forms of culture similar to those that have always been present for text.
While RO culture demands respect for creations, provides authority and integrity to culture and is an important part of ensuring the spread of knowledge; RW culture offers itself as a draft, invites a response and empowers as much as it educates and entertains.
RW and in particular remix culture is seen as a form of collage around which communities are developed and which enhances learning and education through participation. Creators are both professionals and amateurs. He argues that RW is an ecosystem that must have conditions which enable it to evolve and develop. Copyright law supports the practices of RO culture and opposes practices of RW culture.
He reflects on what may have been had the content industry accepted and adapted to the introduction of peer to peer file sharing and questions whether the next ten years should be focused on the war on piracy.
Lessig then goes on to describe three economies – the commercial, the sharing and the hybrid. The tangible value exchanged in the commercial economy is money. It is a simple way of spreading wealth and critical to the internet. Examples of internet based commercial economies include Netflix, Amazon and Google with three central features being the long tail, recommendation systems, and lego-ized development.
By contrast, the intangible value exchanged in a sharing economy is not money, indeed money is seen as poisonous to this economy. Rather it depends on the development of social relations in which participation is a key element. Lessig explains that there are two types of sharing cultures – the thin and the thick.
A thin sharing culture is driven by personal gain where motivations for self gain motivate contributions – examples include Skype and AOL’s IM Network.
A thick sharing culture whilst also depending on norms of sharing and cooperation are driven by a motivation to help others – examples include Wikipedia, GNU/Linux, Project Gutenberg, the Distributed Proof Readers Project, Distributed Computing Projects such as SETI@Home, the Internet Archive, the Mars Mapping Project, the Open Directory Project and Open Source Food.
Sharing cultures take advantage of tasks that users would do anyway and are enhanced in the digital environment because of the non rivalrous nature of intangibles. Different technologies enable new forms of participation and sharing and he suggests are likely to become part of the core of the internet’s ecosystem rather than reside at the periphery.
Hybrid economies combine both commercial and sharing attributes. Free Software and in particular Red Hat Linux are specific examples – the community of programmers are respected, they are given responsibility and the sense that they are part of something meaningful – this in turn enables commercial benefits to be derived and combined with a sharing culture. Lessig lists three main forms of hybrid successes, those that create community spaces such as Dogster, Craigslist, Flickr and YouTube; those which create collaborative spaces such as Politech, Slashdot, Last.fm, Usenet, Yahoo! Answers, Wikia and fan sites; and those which create communities such as Second Life. These forums are designed with community in mind and must balance competing priorities and expectations to succeed.
Hybrid economies produce both economic and social value with the spill-over of information having both public and private benefits. Some of the keys to long term sustainability of hybrids include not being overly focused on commercial priorities by aiming to achieve moderate rather than maximum profits, exercising only moderate control with participants being empowered to make some decisions, and transparency of motives. He refers to the transition of CCDB to Gracenotes as one example where greater transparency was required. Feelings of betrayal and a backlash from participants are inevitable when changes are made without consultation or consideration.
He states that one very damaging practice certain to undermine the success of a hybrid is share cropping. He refers to the EULAs of remix competitions where by participant's copyrights are automatically made the property of the competition organisers as one example of this practice.
Lessig states that parallel economies are possible and that creators should be free to move from one to the other as it suits them. He also acknowledges that the existence of hybrid economies which allow some legal uses of creative works as being fundamental to the decriminalisation of the cultural practices of young people.
To ensure a vibrant future for RO culture, RW culture and hybrids Lessig contends that there must be significant changes to the copyright system with far less emphasis on using the legal system to solve problems. At present the default position of copyright is set to ‘No’ but technology and the creativity of youth demand more. While he suggests that Creative Commons goes someway to addressing the issues what is really needed is a complete overhaul of the copyright system.
Lessig argues that there are five central changes which need to be made to Copyright Law. The first is that amateur production needs to be deregulated – non commercial uses should be free use not fair use. There also needs to be clear title to creative works which can only be achieved through a registration system with a renewal process imposed after a short automatic term. Copyright law must also be made simpler with legislation, in addition to fair use, specifying that some uses are not within its scope. He also suggests that the law must be rewritten to focus on uses (such as public distribution) rather than be determined on the notion of copies. Finally he advances that Congress should move to decriminalise file sharing by allowing non commercial sharing with additional taxes or by imposing a blanket licensing procedure.
Without these changes Lessig fears a destructive impact on the rule and respect for law by future generations.
This was a very enjoyable book, it is well written, easy to read and at times quite funny. For my purposes I found it a little too descriptive and thought there could have been more analysis.
The recommendations to change copyright law are not new and could have been more directly integrated with his observations with more attention given to why they are needed and what impact these changes would have on the ecosystem. The coexistence of these two forms of culture (RO/RW) have been the impetus for much of the conflict in this area and there is scope for a much more detailed discussion as to how these can survive and thrive alongside each other.
He uses the recording industry as an example of a hybrid economy with specific reference to the loss of income to major record labels as an illustration of the ability of the industry to embrace both commercial and sharing culture. Whilst I would argue that the music industry (which is wider than just the major record labels) can, and is, a hybrid economy, I would not have referred to these statistics as an example.
There was never any deliberate effort or desire on the part of the labels to embrace this strategy rather it was imposed upon them. They took active steps to prevent this from happening and only in recent times have accepted through the development of avenues such as MySpace Music and changes to Yahoo's search engine results, that complete control is not necessary. The definition of a business within a hybrid economy, and indeed the other examples he uses, refer to businesses willing to give something away in order to gain, rather than what is taken from them. The loss of income to labels while not conclusively or solely due to file sharing, could well be interpreted as an indicator of their inability to be embrace a hybrid model.
Lessig could have also paid more attention to the role of the Corporations Law and how the fiduciary duties of directors and company executives impact on the choices that are made and the obligations to prioritise profit over community.
Lessig introduces the text by considering the war on piracy and the collateral damage that is evident from the strategies of the major players in the content industry. While endorsing the existence of copyright law he argues for essential changes to take place to ensure that balance is achieved and future generations are not criminalised for what they perceive to be reasonable uses of culture. He urges us to step back and to assess the impact of policies and to take account of the both the need for, and likelihood of success, rather than assuming that legislative constraints are the most appropriate solution.
Lessig analyses culture as being either RO (read only) or RW (read write). He begins by examining cultures of the past with the oral tradition of singing and community interaction with culture prior to the advent of modern technology. He observes that developments such as the phonogram, player piano, radio, cassettes, CDs, televisions, VCRs, DVDs etc changed the experience of culture from RW to RO. In doing so there was a loss of tradition, amateurism, creativity and technique. He states that new technologies promise to enable society to return to a RW culture.
He explains that it is not a matter of selecting between two extremes – the internet vs hollywood; RW vs RO; the future vs the past, gains vs losses – but rather that both RO and RW culture can be extended by new technologies and that businesses which incorporate both are likely to emerge. He states that it should not be a matter of preserving RO culture at the expense of RW culture but that all should be encouraged to develop.
He acknowledges that there is part of culture that is created by professionals that we simply consume. Technology has enabled industries to develop with an emphasis on professional creation – the limitations in copying using analogue technology and support from the law prevented individuals from creating and reproducing recorded works. Now, with the advent of digital technology, any person can reproduce culture – it is not impossible but it is illegal.
He refers to the conditions that have always been present for writing – that quoting with citation has always been allowed and that there is an expectation of being able to lend texts from libraries - and argues that all culture will be ‘bookified’ this century. That is to say that we will develop norms around all forms of culture similar to those that have always been present for text.
While RO culture demands respect for creations, provides authority and integrity to culture and is an important part of ensuring the spread of knowledge; RW culture offers itself as a draft, invites a response and empowers as much as it educates and entertains.
RW and in particular remix culture is seen as a form of collage around which communities are developed and which enhances learning and education through participation. Creators are both professionals and amateurs. He argues that RW is an ecosystem that must have conditions which enable it to evolve and develop. Copyright law supports the practices of RO culture and opposes practices of RW culture.
He reflects on what may have been had the content industry accepted and adapted to the introduction of peer to peer file sharing and questions whether the next ten years should be focused on the war on piracy.
Lessig then goes on to describe three economies – the commercial, the sharing and the hybrid. The tangible value exchanged in the commercial economy is money. It is a simple way of spreading wealth and critical to the internet. Examples of internet based commercial economies include Netflix, Amazon and Google with three central features being the long tail, recommendation systems, and lego-ized development.
By contrast, the intangible value exchanged in a sharing economy is not money, indeed money is seen as poisonous to this economy. Rather it depends on the development of social relations in which participation is a key element. Lessig explains that there are two types of sharing cultures – the thin and the thick.
A thin sharing culture is driven by personal gain where motivations for self gain motivate contributions – examples include Skype and AOL’s IM Network.
A thick sharing culture whilst also depending on norms of sharing and cooperation are driven by a motivation to help others – examples include Wikipedia, GNU/Linux, Project Gutenberg, the Distributed Proof Readers Project, Distributed Computing Projects such as SETI@Home, the Internet Archive, the Mars Mapping Project, the Open Directory Project and Open Source Food.
Sharing cultures take advantage of tasks that users would do anyway and are enhanced in the digital environment because of the non rivalrous nature of intangibles. Different technologies enable new forms of participation and sharing and he suggests are likely to become part of the core of the internet’s ecosystem rather than reside at the periphery.
Hybrid economies combine both commercial and sharing attributes. Free Software and in particular Red Hat Linux are specific examples – the community of programmers are respected, they are given responsibility and the sense that they are part of something meaningful – this in turn enables commercial benefits to be derived and combined with a sharing culture. Lessig lists three main forms of hybrid successes, those that create community spaces such as Dogster, Craigslist, Flickr and YouTube; those which create collaborative spaces such as Politech, Slashdot, Last.fm, Usenet, Yahoo! Answers, Wikia and fan sites; and those which create communities such as Second Life. These forums are designed with community in mind and must balance competing priorities and expectations to succeed.
Hybrid economies produce both economic and social value with the spill-over of information having both public and private benefits. Some of the keys to long term sustainability of hybrids include not being overly focused on commercial priorities by aiming to achieve moderate rather than maximum profits, exercising only moderate control with participants being empowered to make some decisions, and transparency of motives. He refers to the transition of CCDB to Gracenotes as one example where greater transparency was required. Feelings of betrayal and a backlash from participants are inevitable when changes are made without consultation or consideration.
He states that one very damaging practice certain to undermine the success of a hybrid is share cropping. He refers to the EULAs of remix competitions where by participant's copyrights are automatically made the property of the competition organisers as one example of this practice.
Lessig states that parallel economies are possible and that creators should be free to move from one to the other as it suits them. He also acknowledges that the existence of hybrid economies which allow some legal uses of creative works as being fundamental to the decriminalisation of the cultural practices of young people.
To ensure a vibrant future for RO culture, RW culture and hybrids Lessig contends that there must be significant changes to the copyright system with far less emphasis on using the legal system to solve problems. At present the default position of copyright is set to ‘No’ but technology and the creativity of youth demand more. While he suggests that Creative Commons goes someway to addressing the issues what is really needed is a complete overhaul of the copyright system.
Lessig argues that there are five central changes which need to be made to Copyright Law. The first is that amateur production needs to be deregulated – non commercial uses should be free use not fair use. There also needs to be clear title to creative works which can only be achieved through a registration system with a renewal process imposed after a short automatic term. Copyright law must also be made simpler with legislation, in addition to fair use, specifying that some uses are not within its scope. He also suggests that the law must be rewritten to focus on uses (such as public distribution) rather than be determined on the notion of copies. Finally he advances that Congress should move to decriminalise file sharing by allowing non commercial sharing with additional taxes or by imposing a blanket licensing procedure.
Without these changes Lessig fears a destructive impact on the rule and respect for law by future generations.
This was a very enjoyable book, it is well written, easy to read and at times quite funny. For my purposes I found it a little too descriptive and thought there could have been more analysis.
The recommendations to change copyright law are not new and could have been more directly integrated with his observations with more attention given to why they are needed and what impact these changes would have on the ecosystem. The coexistence of these two forms of culture (RO/RW) have been the impetus for much of the conflict in this area and there is scope for a much more detailed discussion as to how these can survive and thrive alongside each other.
He uses the recording industry as an example of a hybrid economy with specific reference to the loss of income to major record labels as an illustration of the ability of the industry to embrace both commercial and sharing culture. Whilst I would argue that the music industry (which is wider than just the major record labels) can, and is, a hybrid economy, I would not have referred to these statistics as an example.
There was never any deliberate effort or desire on the part of the labels to embrace this strategy rather it was imposed upon them. They took active steps to prevent this from happening and only in recent times have accepted through the development of avenues such as MySpace Music and changes to Yahoo's search engine results, that complete control is not necessary. The definition of a business within a hybrid economy, and indeed the other examples he uses, refer to businesses willing to give something away in order to gain, rather than what is taken from them. The loss of income to labels while not conclusively or solely due to file sharing, could well be interpreted as an indicator of their inability to be embrace a hybrid model.
Lessig could have also paid more attention to the role of the Corporations Law and how the fiduciary duties of directors and company executives impact on the choices that are made and the obligations to prioritise profit over community.
Wednesday, June 18, 2008
BMR Music Survey
It was only yesterday that I was looking through all the articles I have collected on file sharing statistics and thinking that it had been some time since a survey had been conducted specifically highlighting the music sharing behaviour of people across age groups. Then last night I read of the British Music Rights ‘Music Experience and Behaviour in Young People’ survey. This is certainly worth a look and provides an excellent insight into the music buying and sharing habits of 773 people and covers the age groups of 14-17, 18-24 and 25+.
Some of the more interesting conclusions include that there are two aspects to a listeners relationship with music – the first being the emotional attachment they have to the music and the artists, and the second being the desire to explore and experiment with new music. Other aspects of the findings are unsurprising, particularly the suggestion that sharing and copying are culturally endemic and that much of the value associated with music is currently unmonetised.
Here is a breakdown of some of the results:
Some of the more interesting conclusions include that there are two aspects to a listeners relationship with music – the first being the emotional attachment they have to the music and the artists, and the second being the desire to explore and experiment with new music. Other aspects of the findings are unsurprising, particularly the suggestion that sharing and copying are culturally endemic and that much of the value associated with music is currently unmonetised.
Here is a breakdown of some of the results:
- Sixty percent of the money each person spent was on music was in relation to concerts (scarce goods) with forty percent being spent on recorded music (non scarce goods).
- A very small percentage of people said they spent money on subscription services with CDs, digital downloads and second hand music all being more popular.
- The average mp3 collection consisted of 1770.98 tracks but it is not clear whether this includes or is separate from the average CD collection reported later in the survey as being around 100 CDs.
- If going to a desert island (presumably one with power) 73% suggested they would take their music collection .
Statistics specifically relating to downloading music include:
- Sixty three percent of respondents download music illegally and on average this equates to 53 tracks per month.
- The top three reasons for downloading include because it is free; to find rare or unreleased material; and to try before purchasing.
- Just over twenty percent of those that download refuse to upload (leeching) but the reasons given don’t make a lot of sense – the most common reason was fear of a virus, security risk or because of pop-ups.
- The reasons given for uploading reflect what Lawrence Lessig refers to as ‘social norms’ – the vast majority of up loaders (around 70%) do so because they wish to return the favour to others.
- Eighty percent of respondents expressed support for a legal file-sharing service.
Overall fifty six percent of respondents suggested that companies who profit by allowing others to share music should pay a music license – presumably this refers to file sharing services however no information is given as to whether respondents thought that these companies were failing to seek these licenses (Limewire, Kazaa, eDonkey, the original Napster and others have all sought reasonable licensing terms from the record labels). Ninety percent of respondents said that this money should go to composers, musicians and performers with no mention of record labels (who are actually more commonly the copyright holders).
There are also some interesting statistics relating to copyright awareness, perceptions of legality and sources of information on the law which provide interesting reading.
Whilst certainly indicative of the general population and a reasonable sample size, the report issued does not provide raw data, details of the questions asked or methodology which would aid in its comprehension. Nonetheless it does provide a detailed illustration of the consumption and exposure to music of the average British citizen.
Further Reading
British Music Rights, Music Experience and Behaviour in Young People: Main Findings and Conclusions (Spring 2008) <http://www.bmr.org/cms/uploads/files/UoH%20Reseach%202008.pdf> at 18 June 2008
ArsTechnica, Survey: young people happy to pay for music—on their terms (16 June 2008) <http://arstechnica.com/news.ars/post/20080616-survey-young-adults-willing-to-pay-for-musicon-their-terms.html> at 18 June 2008
The Register, 80% want legal P2P - survey (16 June 2008) <http://www.theregister.co.uk/2008/06/16/bmr_music_survey/> at 17 June 2008
Monday, June 9, 2008
Draft: Society’s Bill of Rights for Digital Music
I was reading with some interest the TechDirt analysis of the ASCAP Bill of Rights for Songwriters and Composers and thought to start drafting something similar for society - naturally there are some differences but if others would like to add some comments to this perhaps we could all start to think a little more about how we want our society and the future to be shaped:
1. All internet users, regardless of their country of origin should have equal access to music
2. All music should have be given equal prominence and treatment no matter what
software platform it is on
3. All internet users should have equal opportunity to upload and share their creations
4. All non commercial uses should be treated as such with no threat of copyright, contract or
other law suits
5. All digital music should be free of digital rights management protection
6. All commercial creators shall cooperate with the development of an alternative licensing
regime which will seek to maximise the free flow of culture whilst providing reasonable
compensation
7. All citizens of the world shall be free to enjoy and exchange music from all other countries
without any digital, economic, social or lawful restrictions other than those associated with
the above mentioned alternative licensing and compensation scheme
8. All citizens will be entitled to take an active role in developing new music including new
styles, political and socially beneficial music, and undertake to educate the youth to do so as
well
9. All creators will be free to continue to exploit their music in real space in anyway they chose
but only in addition to their participation in the alternative licensing and compensation
scheme
10. These rights shall endure for eternity and beyond.
Further Reading:
ASCAP, A Bill of Rights for Songwriters and Composers (May 2008)<http://www.ascap.com/rights/> at 9 June 2008
TechDirt, ASCAPs Bill of Wrongs (30 May 2008) <http://www.techdirt.com/articles/20080529/2308011264.shtml> at 9 June 2008
1. All internet users, regardless of their country of origin should have equal access to music
2. All music should have be given equal prominence and treatment no matter what
software platform it is on
3. All internet users should have equal opportunity to upload and share their creations
4. All non commercial uses should be treated as such with no threat of copyright, contract or
other law suits
5. All digital music should be free of digital rights management protection
6. All commercial creators shall cooperate with the development of an alternative licensing
regime which will seek to maximise the free flow of culture whilst providing reasonable
compensation
7. All citizens of the world shall be free to enjoy and exchange music from all other countries
without any digital, economic, social or lawful restrictions other than those associated with
the above mentioned alternative licensing and compensation scheme
8. All citizens will be entitled to take an active role in developing new music including new
styles, political and socially beneficial music, and undertake to educate the youth to do so as
well
9. All creators will be free to continue to exploit their music in real space in anyway they chose
but only in addition to their participation in the alternative licensing and compensation
scheme
10. These rights shall endure for eternity and beyond.
Further Reading:
ASCAP, A Bill of Rights for Songwriters and Composers (May 2008)<http://www.ascap.com/rights/> at 9 June 2008
TechDirt, ASCAPs Bill of Wrongs (30 May 2008) <http://www.techdirt.com/articles/20080529/2308011264.shtml> at 9 June 2008
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
Tuesday, April 8, 2008
360 Contracts and MySpace
At present there are reportedly around 5 million artists with MySpace pages.
Three of the major labels (not EMI as yet) are to form a separate company, owned and run by them as a joint venture, to work with MySpace to enable artists to sell music as well as a whole range of other products. This raises questions of the potential for anti-competitive practices and the impact that the domination of the labels might have on both signed and unsigned artists.
Signed Artists
In recent times and quite apart from the MySpace initiative, there have been reports suggesting that the very survival of the major record labels depends on their ability to alter the traditional contractual arrangements with artists. Recording contracts were already notorious for being unfavourable to the artist given the small royalties, the need to recoup advances, marketing, production and other costs prior to seeing any real money as well as their length and what many see as a loss of artistic control. In the past labels have recovered their costs and profits long before the artists signed to them break even. But as the trend continues whereby labels are increasingly unable to rely on the sale of CDs to sustain their business model, a new, much broader record contract has been developed.
The newer flavour of record contract tends to allow the label to recover costs from other aspects of the artists business such as merchandising, concerts and sponsorship deals. Most signed artists realise fairly quickly that they are unlikely to make money from music sales and in the past relied primarily on these sources to support themselves. Naturally, as record companies are demanding more of this money, artists are left further financially disadvantaged.
Reports regarding this new initiative with MySpace indicate that it will not simply be music that will be sold through this avenue. Indeed it will be all of these aforementioned sources of income that will now be bundled together. This gives an enormous amount of power to the record labels to control all aspects of a signed artist’s career. One argument is that it benefits the artist because by limiting the infrastructure and coordination costs there can be a cost saving. The other side of this though is the possibility that individual artists will be worse off as they have no choice but to accept any deal offered by the labels. Without the ability to negotiate these aspects of the business independently and with the labels essentially controlling the distribution of music in this forum, signed artists may well face a much greater form of contractual slavery than they currently do.
Unsigned Artists
Around 40% of the music market (a proportion that continues to grow) are currently independent artists. One report suggests that the music service, whilst initially being developed by the major labels, will eventually allow independent artists to sell their music and associated items. Remembering however that this initiative will be owned and run by the major labels there are two points of contention. The first is that it is highly unlikely that independent artists will be treated equally. One can easily imagine a situation where the artists signed to the major labels are promoted ahead of independents, where bandwidth is prioritised in favour of signed artists or the possibility that independents may end up paying more for the privilege of having this avenue to sell their work. This later point raises a second area of contention. As the industry itself moves away from music as the primary product, it seems that paying the major labels to distribute the work of independent artists, allows them to access royalties by default. Without having to support the artist, coordinate their careers, cover the costs of their recording or marketing; major labels nonetheless will still be able to make money out of them.
The Public
Of course there are also flow-on effects to the public from this proposal. As I often note, an environment that is not supportive of the best artists inevitably results in the promotion of music that is commercially viable rather than socially advantageous. While, fortunately, not all people use MySpace and there will continue to be some competition from other music initiatives, this business model will further impede the movement to a collective licensing model. There are already suggestions that most of the music will be protected with DRM (with a possibility of some unprotected tracks). More importantly however, such a model continues to depend on the stifling of innovation through the continued persecution of file sharing technology and users.
One commentator concludes discussion of this issue by stating ‘Welcome to Feudalism 2.0’. Unfortunately this captures much of my sentiments regarding this proposal. In many ways this is much worse than the current market dominance of iTunes. It smacks of the potential for anticompetitive behaviour and does nothing to overcome the current difficulties of artists and the public in the digital music environment.
Articles
TechDirt, Major Record Labels Form Joint Venture With MySpace (3 April 2008)
<http://www.techdirt.com/articles/20080403/111142739.shtml> at 7 April 2008
The Register, MySpace Music leaves creators cold (4 April 2008) <http://www.theregister.co.uk/2008/04/04/myspace_music_coup/> at 7 April 2008
The Register, MySpace trumpets music service (3 April 2008) <http://www.theregister.co.uk/2008/04/03/myspace_music/> at 7 April 2008
SiliconValley/Associated Press, MySpace starts music service with 3 major record companies
(3 April 2008) <http://www.siliconvalley.com/personaltech/ci_8796093> at 7 April 2008
Digital Music News, It's Coming: More Dealmaking Details Leak on MySpace Music (25 March 2008) <http://www.digitalmusicnews.com/stories/032408myspace> at 26 March 2008
Digital Music News, Fog Starts Lifting on MySpace, Major Label Discussions (21 February 2008) <http://www.digitalmusicnews.com/stories/022008myspace> at 25 February 2008
Digital Music News, Upstreaming Disrupted:Why Major Label Survival Depends on Transformed Deals (18 March 2008) <http://www.digitalmusicnews.com/stories/031708upstream> at 19 March 2008
Digital Music News, 360 + Change: Labels Pushing Harder on Broader Deals (10 February 2008) <http://www.digitalmusicnews.com/stories/021008change> at 19 February 2008
Sunday, March 30, 2008
Warner taking the first step?
SonyBMG were reported to be considering a subscription service of their own and Apple has also indicated a desire to start a subscription service. It has been suggested that these subscription services will differ from current ones such as Rhapsody and Napster(2) as those that discontinue their contracts will be entitled to keep some of the files they have downloaded. The SonyBMG proposal has attracted some criticism with many questioning the viability and logic of a label specific service. There are also questions about the growth of existing subscription services to contend with.
The most promising move has come from Warner Music who have announced their intention to set up a new company, affiliated with Warner but not owned by it, with the objective of developing a licensing model over the next few years. Jim Griffin will lead the effort and has been reported as saying that the desire is to create a new collection society for individual users to pay a monthly fee to their internet service provider with the pool of funds – he estimates to be around $20 billion a year – to be shared by the copyright holders of music.
Two different types of licensing schemes have been discussed in the past as potential solutions to file sharing. The EFF support a voluntary collective licensing scheme whereby artists and consumers both elect as to whether or not they want to pay a fee/license their music. The other scheme that has been discussed is often referred to as a blanket licensing scheme. This has typically been seen as requiring government intervention to force consumers/copyright holders to participate. It seemed initially that Warner were proposing something of a hybrid scheme where it might be voluntary for the copyright holders but compulsory for consumers with charges automatically included with their internet access fees. More recent reports however suggest that the hybrid licensing proposal may already be re-evaluated with Wired quoting Griffin as stating:
"We are in the earliest stages of what is a dynamic conversation about licensing opportunities in the global digital marketplace... It would be unfortunate if a creative and fruitful dialogue were sidetracked by a rush to judgment about what was simply my own illustrative example of one of many concepts I have in this space."
As I have noted in previous posts, music cannot or should not be completely free as there needs to be incentive to attract the best creators in order to produce quality music and social progress. Other factors to be considered include the status quo – this surely has to be better than what we have now; as well as the viability of other business models on an industry wide basis. While some of these may have been successful in isolated incidents there remain questions as to their suitability on a larger scale.
The devil, as always, will be in the detail and it will be interesting to watch the scheme develop - particularly the technology that is put in place and the treatment of both signed and independent artists and songwriters. The role of ISPs is also another area to be considered as such a scheme may potentially impact on their independence just as much as having to disclose users details for the purposes of lawsuits, as well as open them up to new forms of liability which they are not currently facing. There is obviously a long way to go yet with this proposal but it is certainly the first step in the right direction.
Articles:
Portfolio.com, Fee for All (27 March 2008)
<http://www.portfolio.com/news-markets/top-5/2008/03/27/Warners-New-Web-Guru> at 30 March 2008
TechDirt, Warner Music Latest To Jump On The Music Tax Bandwagon (28 March 2008) <http://www.techdirt.com/articles/20080328/012123680.shtml> at 30 March 2008
EFF Deeplinks, Monetizing File-Sharing: Collective Licensing Good, ISP Tax Bad (20 March 2008) <http://www.eff.org/deeplinks/2008/03/monetizing-file-sharing-collective-licensing-good-isp-tax-bad> at 30 March 2008
CNet News Blog, Jim Griffin says ISP music tax only one possibility (29 March 2008) <http://www.news.com/8301-10784_3-9905952-7.html> at 30 March 2008
ArsTechnica, Warner Music floats ISP surcharge idea for unlimited P2P music (28 March 2008) <http://arstechnica.com/news.ars/post/20080328-warner-music-floats-isp-surcharge-idea-for-unlimited-p2p-music.html> at 30 March 2008
ChicagoTribune, Music biz looks at giving fans all the songs they want in exchange for broadband access fee (20 March 2008) <http://leisureblogs.chicagotribune.com/turn_it_up/2008/03/the-latest-plan.html> at 27 March 2008
Wired, Music Industry Proposes a Piracy Surcharge on ISPs (13 March 2008) <http://www.wired.com/entertainment/music/news/2008/03/music_levy> at 18 March 2008
ArsTechnica, $5 a month for legal P2P could happen sooner than you think (13 March 2008) <http://arstechnica.com/news.ars/post/20080313-5-a-month-for-legal-p2p-could-happen-sooner-than-you-think.html> at 18 March 2008
TechDirt, RIAA Now Open To 'You Must Be A Criminal' Tax On ISP Fees (14 March 2008)
<http://www.techdirt.com/articles/20080313/114351536.shtml> at 18 March 2008
TechDirt, Why A Music Download Tax Is A Bad Idea (26 February 2008) <http://www.techdirt.com/articles/20080225/094249346.shtml> at 28 February 2008
The Register, Apple 'mulls all-you-can-eat music plan' (19 March 2008)
<http://www.theregister.co.uk/2008/03/19/apple_itunes_unlimited/> at 22 March 2008
ZeroPaid, Apple in Talks with Record Labels for unlimited iTunes (20 March 2008) <http://www.zeropaid.com/news/9338/Report%3A+Apple+in+Talks+with+Record+Labels+for+Unlimited+iTunes> at 22 March 2008
ZeroPaid, Sony BMG Developing Music Subscription Service (26 March 2008) <http://www.zeropaid.com/news/9354/Sony+BMG+Developing+Music+Subscription+Service> at 27 March 2008
Digital Music News, Sony BMG Ponders Subscription Launch, Details Emerging (26 March 2008) <http://www.digitalmusicnews.com/stories/032508sony> at 27 March 2008
TechDirt, Why Sony-BMG's Music Subscription Idea Won't Work (25 March 2008)
<http://www.techdirt.com/articles/20080325/110556644.shtml> at 27 March 2008
Digital Music News, Kitty Still Tame; Napster Subscriber Tally Stay Flat (6 February 2008) <http://www.digitalmusicnews.com/stories/020608napster> at 19 February 2008
Digital Music News, Struggling Subscription: Rhapsody Numbers Show Modest Growth (8 February 2008) <http://www.digitalmusicnews.com/stories/020708rnwk> at 19 February 2008
Sunday, March 23, 2008
Free, not free.
In discussing how artists can use low cost promotion and self distribution to become successful Resnikoff highlights an important point when he quotes Jeff Semones, president of M80:
"The quality of the music has to be there... You can expose a ton of people to a piece of crap, but it's still a piece of crap."
Regardless of the business model in place for artists, listeners must recognise a level of quality and identify with the music in someway to be successful. While what is considered 'quality' can differ from listener to listener, it is reasonable to suggest that the regulatory models in place (law, architecture, commerce and norms) can produce environments that are more or less conducive to quality.
Having an open market where artists compete on an even playing field is one example. In the current environment where the major labels pick and choose which artists will be promoted over others and where their business model depends on a high level of success to break even, there is arguably less opportunity for quality and much more emphasis on mass popularity.
Another important aspect to producing quality music is the remuneration of artists. While the True Fans concept can help to free artists from the constraints of major labels in terms of the content of their music, like so many of the models promoted as alternatives, it fails to provide the level of financial certainty for artists that is really needed. Just like the NineInchNails and RadioHead experiments recently, these models appear to work well in isolated circumstances but problems are foreseeable if a significant sector of the industry were to attempt to engage them. Fans may be true in the short term but I question how many times this would happen and whether it would be sustainable as a long term, industry wide solution.
The trick with art is of course, unlike mass produced commodities (yes there is a difference), that some musical works can be produced in very short periods of time but others can take a lot longer with many variations and drafts before the final work is realised. Many attempts may not succeed at all, with few that do on a very large scale; just as there are those songs that have a long life and those that fade quickly from our memories. This is particularly the case for music with a social utility beyond emotions or dancing. Where there is a more complex purpose, the lyrical and musical content can take longer to develop. To produce progress in society, we must encourage the production of this music by providing an environment where artists willing to take up the challenge have a reasonable opportunity to support themselves from their creations. As I have stated before I believe that emotive and dance music will survive in any environment but music with a more complex purpose can only survive and for that matter, thrive, in certain environments.
Articles
Digital Music News, The Best Kept Secrets Behind Viral Distribution... (20 March 2008) <http://www.digitalmusicnews.com/stories/031908youtube> at 23 March 2008
The Technium, 1,000 True Fans (4 March 2008) <http://www.kk.org/thetechnium/archives/2008/03/1000_true_fans.php> at 23 March 2008
TorrentFreak, MTV Uses P2P Data for Playlist Selection (14 March 2008) <http://torrentfreak.com/mtv-uses-p2p-data-080314/> at 18 March 2008
Digital Music News, Songkick Starts Measuring Band Popularity Online (17 March 2008) <http://www.digitalmusicnews.com/stories/031608songkick> at 18 March 2008
Digital Music News, Does Chatter Matter? University Researchers Say Yes (12 February 2008) <http://www.digitalmusicnews.com/stories/021108chatter> at 19 February 2008
TechDirt, Another Musician Who Recognizes The Concept Of True Fans (18 March 2008) <http://www.techdirt.com/articles/20080311/183620503.shtml> at 22 March 2008
TechDirt, The Path To Success As A Content Creator: Building Up Your True Fans (5 March 2008) <http://www.techdirt.com/articles/20080304/174129438.shtml> at 7 March 2008
Digital Media Wire, Music Community Slicethepie Releasing First Fan-Financed Album (6 March 2008) <http://www.dmwmedia.com/news/2008/03/06/music-community-slicethepie-releasing-first-fan-financed-album> at 18 March 2008
Digital Music News, Fan-Funded Space Starts to Grow, Slicethepie Rumbles (28 February 2008) <http://www.digitalmusicnews.com/stories/022708fan> at 29 February 2008
Wired, Jill Sobule Goes to Fans for Album Financing (5 March 2008) <http://blog.wired.com/music/2008/03/jill-sobule-goe.html> at 6 March 2008
TechDirt, What Kind Of Progress Are We Promoting? (13 March 2008)
<http://www.techdirt.com/articles/20080313/031128532.shtml> at 18 March 2008
Friday, March 14, 2008
Monetising File Sharing
ZeroPaid published an interesting article a few days ago highlighting a number of recent attempts from around the world, to control the internet and the flow of information. One of the most interesting parts of this article for me, relates to the use of memory sticks by Cuban citizens to share a video of a confrontation with the president of the National Assembly. As the article goes on to note, this illustrates the argument that regulation of the internet does not necessarily prevent the sharing of information.
I recently wrote a letter to Senator Stephen Conroy, Minister for Broadband, Communications and the Digital Economy after learning that Australia might consider a scheme similar to that being debated in France and the UK whereby file sharers would receive three warnings before having their access cut off by their ISP.
Here is the essence of what I wrote:
As the government would not doubt be aware, file sharing is an activity that has been adopted by a significant proportion of the technology literate population, and particularly amongst young people. The architecture provides users with an unlimited ability to share and exchange digital material. Whilst, with respect to traditional industries based on intangible goods, this has posed a degree of concern, the architecture has numerous and well documented lawful and very socially beneficial attributes. Indeed democracy itself is dependent on access to information. In the past this has been seen largely as information presented by the government or that which is made available through the mass media. In the digital environment however we are presented with the unique opportunity to maximize the creation and exchange of information on the level of the individual citizen. File sharing architecture and access to the Internet are fundamental components of realizing this possibility.
The proposal to ban users after a series of warnings about the ‘infringing’ use of file sharing, risks the very opportunity to embrace technology in a way that will bring about progress to our society.
...[S]uch a policy would impact dramatically on young people and create the environment where they are most likely denied access to the whole of the internet. Arguably the adoption of file sharing has reached the point where it is irreversible. The idea that young people will heed warnings against this practice, to my mind, is to miss the real level at which this practice currently takes place. The consequence may well be an emerging sector of society with little or intermittent internet access, the incentive to engage in practices which further offer anonymity, not to mention the stifling of technological development, all creating impediments to the progress and development of society.
As has already been seen in the United States and Europe, there are significant questions about the evidence on which current file sharing claims are currently being made, including instances where deceased people and those without access to the correct operating system on which to use the software, have been issued with subpoenas. To further allow the use of these questionable investigative techniques in an environment where there is no oversight by a judicial body, where the recipient would have no opportunity to defend themselves, and to treat these issues as matters of mere administration, is to cast off the protection of the law that is so badly needed against corporations with enormous resources and power. There are also significant privacy issues that should be addressed by such a practice.
As is common amoung young people and families, and as evidenced by events in other jurisdictions, often one computer or more importantly one internet account can be used by a number of people. This further raises the probability of wrongly targeting an account holder when in fact it was another person altogether responsible for the ‘infringement’. In these instances a number of people may be denied access on the basis of doubtful evidence. Further complications also arise from the fact that many broadband contracts are for 12months or more; not to mention the idea of repeat offenders. Is it simply the case that a banned file sharer will be able to seek out another ISP and start a new account; or shall there be a register of offenders and who shall have access to it or maintain it; shall the ban be for a set period of time; what if they are at university or work in a field where they are required to have Internet access?
As I am sure the Internet Industry Association has and will continue to argue, there are a number of difficulties also raised by such a prospect from the perspective of a communications provider. It is fundamental to an open society and an open internet that it is always remembered that Internet Service Providers are just that – service providers; independent communications carriers – they are not responsible nor should they ever be directly liable or accountable for what occurs over the network. ISPs are a fundamental link between individuals across the globe and unless they maintain absolute independence, these links are, and will increasingly be, placed in jeopardy. In particular, a situation should never be allowed to arise where ISPs are made accountable to private entities. One may well ask – where should such a regulation begin and end? Every single file, document, song, picture, movie, game, recipe etc; everything on the internet, with the exception of some content which is licensed for open use, is currently the subject of copyright. Should a user be banned for all activity that takes place on the internet or is it the proposal to favour some organizations over others?
What the internet has given society should not be underestimated or under valued. The content industry need to recognize that the times have indeed changed. They are operating in a very different environment to what they have traditionally and what this country needs is a government willing to stand up for the citizens and to recognize that mass corporations need not dictate government policy.
There are many alternatives that have and are being researched. With respect to the music industry very real and achievable balance can be struck by the introduction of a blanket or collective licensing scheme. The internet has opened up the opportunity for competition and creativity beyond what the music industry could ever achieve on its own. I urge you to reject this proposal from the outset and to make it clear to those with oligopoly control that this is the point where they need to alter their business models, not society that needs to alter in order to artificially sustain their futures.
The biggest misconception from this proposal is indeed the idea that this will result in the large corporations making more money. This suggestion is purely laughable. Those engaging in file sharing do so because they can with no cost. There is absolutely no way one could assert, that, in the absence of file sharing, these users would pay for this content. They won’t. They will simply go without, do what the can to get around the law, suffer the consequences or find alternative ways of obtaining the same material. With the ever decreasing costs of large portable storage devices, any government with the best interests of the content industry in mind, should openly argue for the adoption of a licensing scheme. In the event that a three strikes policy is brought in and for some amazing reason actually works, the net result will be the further movement of content exchange underground where these companies will have an even smaller opportunity of detecting it and monetizing it.
Beyond the rhetoric, beyond the false claims of hardship, beyond the expectation that society will be frozen in time so a handful of corporations can continue to make money; must be a government ready to deal in fact and reality. Not only is this proposal unworkable, it is plainly wrong.
ZeroPaid, Controlling the Net - How Hard Could It Be? (9 March 2008) <http://www.zeropaid.com/news/9317/Controlling+the+Net+-+How+Hard+Could+it+Be%3F> at 14 March 2008
New York Times, Cyber-Rebels in Cuba Defy State’s Limits (6 March 2008) <http://www.nytimes.com/2008/03/06/world/americas/06cuba.html?_r=4&scp=3&sq=cubA&st=nyt&oref=slogin&oref=slogin&oref=slogin&oref=slogin> at 14 March 2008 (this has a link to the YouTube clip)
ZeroPaid, French File-Sharers to Begin Receiving E-Mail Warnings This Summer? (February 2008) <http://www.zeropaid.com/news/9236/French+File-Sharers+to+Begin+Receiving+E-Mail+Warnings+this+Summer%3F> at 4 February 2008
The Register, Filesharers petition Downing Street on 'three strikes' (28 February 2008) <http://www.theregister.co.uk/2008/02/28/filesharing_downing_st_petition/> at 3 March 2008
ZeroPaid, UK Govt to ISPs: 'You Have Until April '09 to Punish File Sharers' (26 February 2008) <http://www.zeropaid.com/news/9289/UK+Govt+to+ISPs%3A+%27You+Have+Until+April+%2709+to+Punish+File-Sharers%27> at 28 February 2008
Digital Music News, British Government Gives Industry, ISPs Ultimatum (25 February 2008) <http://www.digitalmusicnews.com/stories/022408uk> at 26 February 2008
The Register, Government rattles 'three strikes' filesharing sabre again (22 February 2008) <http://www.theregister.co.uk/2008/02/22/burnham_dcms_filesharing/> at 25 February 2008
Digital Music News, Operation ISP: Legislative Proposals Emerge in UK (13 February 2008) <http://www.digitalmusicnews.com/stories/021208isp> at 19 February 2008
Slyck, UK ISPs Balk at Unplugging P2P Pirates (14 February 2008) <http://www.slyck.com/story1662_UK_ISPs_Balk_at_Unplugging_P2P_Pirates> at 18 February 2008
ZeroPaid, Labels Love ISPs Disconnecting File Sharers, But Who Will Pay for Lawsuits? (14 February 2008) <http://www.zeropaid.com/news/9265/Labels+Love+ISPs+Disconnecting+File-Sharers%2C+but+Who%27ll+Pay+for+Lawsuits%3F> at 15 February 2008
ZeroPaid, UK P2P Crackdown to Fuel Wi-Fi Hi Jacking (14 February 2008) <http://www.zeropaid.com/news/9264/UK+P2P+Crackdown+to+Fuel+Wi-Fi+Hijacking%3F> at 15 February 2008
The Register, ISPs demand record biz pays up if cut-off P2P users sue (12 February 2008) <http://www.theregister.co.uk/2008/02/12/anti_filesharing_paper_leak/> at 13 February 2008
TechDirt, UK To Force ISPs To Kick Casual File Sharers Off The Internet (12 February 2008)<http://www.techdirt.com/articles/20080211/220305233.shtml> at 13 February 2008
TorrentFreak, 5 Reasons Why Illegal Downloaders Will Not Face a UK Ban (12 February 2008)
<http://torrentfreak.com/illegal-downloaders-will-not-face-uk-ban-080212/> at 13 February 2008
BBC News, Illegal Downloaders 'face UK ban' (12 February 2008) <http://news.bbc.co.uk/1/hi/business/7240234.stm> at 13 February 2008
Slyck, UK Moves to Disconnect P2P Pirates (12 February 2008) <http://www.slyck.com/story1661_UK_Moves_to_Disconnect_P2P_Pirates> at 13 February 2008
The Register, Minister threatens legislation deadline (8 January 2008) <http://www.theregister.co.uk/2008/01/08/triesman_isps_legislation_timetable/> at 11 January 2008
The Register, Filesharing shambles revealed as 'deal' collapses (15 February 2008) <http://www.theregister.co.uk/2008/02/15/tiscali_bpi_agreement/> at 18 February 2008
Digital Music News, Three-Strikes Hits Australia: ISP Legislation Considered (19 February 2008) <http://www.digitalmusicnews.com/stories/021708australia> at 21 February 2008
ZeroPaid, Australian ISPs May Also Ban File-Sharers from the Internet (20 February 2008) <http://www.zeropaid.com/news/9281/Australian+ISPs+May+Also+Ban+File-Sharers+from+the+Internet> at 21 February 2008
TechDirt, Australia Latest To Consider Kicking People Off The Internet For File Sharing (18 February 2008) <http://www.techdirt.com/articles/20080218/014201277.shtml> at 19 February 2008
Sydney Morning Herald,
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