Aug 12

While I was walking home tonight, I passed by a museum and something in the window caught my attention. It was a display of a small antique pipe organ from the late 1700’s– it looked like a very early attempt to create a miniature Wurlitzer that could be played at home. A rather odd, “Chitty Chitty Bang Bang” type of contraption, it reminded me of the homemade time travel machine rigged up by Doc Brown in “Back to the Future”. In its day, it probably looked as cool as the iPad. Now, it’s not something that anyone uses to get the job done.

The sight of this awkward, ungainly invention brought me back to an analogy made by one of my colleagues earlier in the day, as we discussed the current challenges of copyright licensing. “I feel like we’re trying to drive some old unrestored 1950’s clunker” he said, “the kind that only the old guy that owns it can actually drive, because you have to know just how to wiggle the gear shift and how many times to pump the brakes to make it all work”. I heard almost the same sentiment at a lunch with one of the industry’s most respected copyright lawyers. Everyone in the music business knows it’s true, though few will say it publicly, since it directly undermines our demands to get paid for what we own. But the old copyright system just ain’t working anymore. The truth is:

The process of licensing copyrights has to change drastically and fundamentally, if the whole concept of copyright is going to survive at all.

Right now, we’re driving down the Information Superhighway in that old 1950’s jalopy– we’ve got it floored and we’re doing about 35 miles an hour. Copyright holders are not only being run over, we’re also being passed by, as young entrepreneurs from the Google, YouTube, Spotify generation create global empires built on providing immediate, free access to entertainment and information. Meanwhile, the copyright community is still back somewhere on the side of the road, trying to figure out who owns the rights in which territory and for how long, and who has the right to issue the license, and how many licenses will be necessary, and what should the license cost. At best, we’re an impediment. At worst, we’re irrelevant.

Consider:

At a family wedding, the bride and groom do a crazy dance to a medley of big pop hits– it’s all relatively harmless (at least from a copyright standpoint) and clearly covered by the principle of “fair use”. After all, this is kind of what music was made for. But not too surprisingly, the dance is captured on videotape by the people filming the wedding. It’s then posted on YouTube, probably as a simple, cheap way of sharing the moment with family and friends. Again, it’s all still covered by fair use, since it’s largely a private activity and there’s no attempt to sell anything.

But suddenly, the family wedding video becomes a viral phenomenon, and millions of viewers go to YouTube to watch the silly dance, generating plenty of tangible economic benefit to YouTube in the process. At this point, clearly the copyrighted material contained in the video (that is the medley of recorded music to which the dance is performed) should be licensed, and the labels, artists, publishers and songwriters should be compensated. But how? Just a guesstimate would indicate that there could be 15 different artists, all of the major labels (some of which might no longer own the master recordings in question), probably at least fifty songwriters, and twenty different music publishers, each of whom would have to grant permission, and then play a role in determining the appropriate sync fee for each song. It would take months for a two minute home video, and probably cost in the six figure range. Ridiculous.

Here’s another:

A video collector owns outright some archival footage of a big star performing on a TV variety show from years ago, which a new mobile entertainment provider now wants to license and sell as a download to mobile phones in Asia. But within this short segment, the big star performs a song, which would have been licensed under a sync agreement that covered only that particular performance, in that territory, during a specific window of time. In order to use the footage in a different medium, territory and era, a new sync license will need to be negotiated with all of the publishers (many of whom have sold their catalogs or allowed the copyrights to revert to the songwriters). And then there’s the matter of union fees. Several of the performers on the show may have been members of the American Federation of Television and Radio Artists (AFTRA), Screen Actors Guild (SAG) or the American Federation of Musicians (AF of M), which means there might be residual payments due for any reuse of the show. Good luck figuring that one out.

A last example:

A music fan in Japan wants to purchase the new CD by an American act signed to Columbia/Sony Records in the US. The CD has never been released by Sony in Japan. The fan logs on to Amazon, locates the CD, and purchases it. But Amazon can’t fulfill the transaction, due to a copyright infringement lawsuit initiated by Sony Japan. As the local distributor of Sony product in that territory, Sony Japan owns the rights to sell that product in their region. By allowing the consumer to purchase directly from Sony in the US, Amazon is infringing on the copyright. And it’s true, even though Sony Japan has no intention of making the record available in Asia. As the copyright holder, the local company has the right to distribute the product or not, at their discretion.

In part, this explains why a consumer in the US who wants an album by a French artist released only in France can’t simply go on iTunes and purchase it. He or she can go to iTunes France and see the album or hear samples of the music. Certainly, the consumer can steal the record on any number of illegal sites. But purchase it? Nah. That would be copyright infringement. Go figure.

Anyone who reads this blog regularly knows that I’m a staunch defender of copyright. I’m not a believer that information wants to be free. I am however realistic enough to know that information wants at least to be available, at some generally reasonable price. Right now, our copyright laws are a hodgepodge of political compromises and outdated principles, all changing from country to country. In a global world, they are structured territory by territory. In a society based on instant access and immediate gratification, they are restrictive and reliant on step by step negotiations with half a dozen different parties for a single use. They can’t survive like this.

Unfortunately, there are no attractive solutions. Clearly, any reform needs to be done on a global level. The web is worldwide after all. That should be easy. We can take it up right after we solve the problem of world hunger and get everyone to agree on global warming.

Even worse, the only viable answer to the internet-related problems seems to lie in some kind of system of blanket licensing, similar to that used by the performing rights organizations to collect on music being used in public venues. In some form or another, a tax or surcharge would need to be assessed on electronic equipment or computer technology, or directly on internet service providers, mobile phone networks and other “distributors”. The money collected would then be shared among the entire creative community, from publishers and labels to artists, writers and union members.

If that seems like a simple and clean resolution, it’s not. The problem is that all of the money would go into a fund, and then be distributed to the copyright holders without any clear way of attributing it to a specific use. Worse, the ability of each individual copyright holder to negotiate fees on his or her own behalf and to collect them would be lost– thus eliminating two of the major functions of a music publisher in one fell swoop. In essence, such a move would make much of the music publishing role obsolete. If only for reasons of self-interest, it’s not a proposal I relish.

The only thing worse is the alternative, which is what’s happening now. We are already becoming obsolete, simply because people are ignoring us. Sure, we can still make things grind to a halt with a major lawsuit here or there, or exact our revenge with a jumbo copyright-infringement settlement–after about ten years in court, fighting appeal after appeal. But the judges are getting less sympathetic, the law is seeming less and less just to society at large, and the internet generation is moving ahead without us. Most importantly, we’re leaving stacks of money on the table every day, by not being able to take advantage of licensing opportunities for our music. There’s no value in owning copyrights if no one has the time, patience or money to license them. Already, more and more creators are simply making new product which they own in its entirety, and licensing it directly to individual services.

There was an article in the New York Times today, about an inmate who after having been wrongfully imprisoned on death row for twenty years had just been set free. His one request to a benefactor had been a Walkman, only to be informed that no one used them any more, and handed an iPod. As the surprised ex-con acknowledged, it’s painful sometimes, but things change. You have to move on.

Otherwise, you’re an artifact in a museum window.

http://ericbeall.berkleemusicblogs.com/2010/08/12/life-in-the-slow-lane/

by Devin Coldewey on February 11, 2010

Yesterday, in response to allegations of DMCA violations, several popular music blogs were wiped off the face of the net. They were hosted by Google via Blogger, and it was only after they were completely erased that the owners received emails to the effect of “We got one too many complaints — you’re deleted. Love, Google.” It’s trending around the net as “Musicblogocide 2010,” but that puts too much of it on Google’s lap, I think. After all, it’s the clumsy and outdated DMCA that actually led to the blogs being deleted.

It’s a bit of a sticky wicket, speculating about the legality of these things, but with such a decisive and bold action as the one Google has taken, we can probably reach some conclusions about how it should have gone down.

The sites in question were, of course, walking the line in terms of legality. MP3 blogs are scary to the music industry, because they represent such a challenge to the established promotional and sales flow. This is not the place for a whole argument about fair use, but I think most of what these blogs did would fall under that definition, woolly as it is. They hosted MP3s of artists they were discussing or promoting, but not whole albums. One of the bloggers notes that “everything I’ve posted for, let’s say, the past two years, has either been provided by a promotional company, came directly from the record label, or came directly from the artist.” I used to have an MP3 blog myself, and never received anything but thanks from the artists I tried to promote. So what happened here?

Well, Google is probably limited in what they can discuss publicly, but chances are that these blogs were fingered by some overzealous lawyers using the same sort of technique to catch copyright offenders as commercial fishermen use to catch tuna. These lawyers likely did a little searching for their clients’ names and properties, found a few MP3s, and then added the domains and any related domains to a list. They then filed DMCA violation paperwork against everyone on the list. How could a blog that had permission from the labels or artists to post every item get stuck in this net? Well, at the risk of stretching the metaphor too far, the DMCA isn’t exactly dolphin-safe.

I’m not a lawyer, so I won’t attempt to criticize the DMCA on any sort of technical grounds, but more eminent authorities have concluded that the act and its related laws are admirably well-designed to preserve the status quo. It’s clear that the laws had the interests of labels and such in mind, who certainly had a hand in setting them up. How else would it come to be so easy to get an innocent, probably beneficial personal blog completely effaced from the net?

The Blogger authorities have responded, somewhat, in this post. Essentially they’re saying “well, we just followed the rules.” And that’s true. They offered this service for free with a EULA and what they did was, if not the best move, at least not unprecedented. There are at least two problems presented, though.

First, the burden of proof is on the accused. That’s a bit disturbing, isn’t it? Any allegation is assumed to be true unless the person at which it is directed disputes it — a person who likely little understand of the technicalities of the law, and furthermore is often not even informed which track or post is allegedly in violation. Their recourse is limited and obscure. And mistaken or fraudulent takedown notices are far from rare. One of the bloggers affected cited four he’d received in the last year that had turned out to be out of order.

Second, the sites that were taken down were more than lists of links to MP3s. There was a lot of content on there that was most certainly not violating any law. Specifically, all the writing done by the bloggers and commenters. Some of these blogs had been going for years, and had built up large readerships as well as an enormous archive of commentary, history, interviews, all that kind of thing. Blogger threw the baby out with the bathwater, and there should be some kind of protection against that.

On that last point, it should probably be noted that while the blogs were described as being completely removed, I have no doubt that they’ve simply been taken offline. The content has not been zeroed off the servers and so on. After all, what if the owners challenged the DMCA notices and won? They could conceivably sue Blogger for destroying years of work that had nothing to do with the allegedly offending content. That last part I’m not sure about (Google is within the law in taking the blogs down) but a sympathetic judge might see the harm done and blame Google for acting rashly and negligently. So I’m guessing all that content is still around, though much damage will have been done whether the blogs are ever restored or not.

Of course, it’s not just music pirates who are now worried. Since these blogs were popular and (in a relative way) legitimate, it seems that the dagger now hangs above every person that ever dared to share. It’s like the immense fines levied against minor P2P offenders: the RIAA and its lawyers are barking up the wrong tree and biting the wrong ankles. And since they show no sign of changing their tack, we must appeal to the middle man — in this case, Google and Blogger. What could they have done?

Well, to begin with, a presumption of innocent would be nice. They say that they usually just put the offending post in draft status and alert the owner. So far, so good. But what line was crossed that these blogs were not only removed, but removed with no warning? A cordial notice of suspension would be a hundred times better than a real removal:

“We’ve received several complaints about your blog. Because of their number and previous complaints against you, we’ve temporarily suspended your account until this issue can be resolved. View the complaints here. If you feel these allegations are baseless, fill out this form and we will forward it to the complainants. We apologize for any inconvenience.”

Wouldn’t that be nice? If you’re going to give someone the means to walk in the margins of the law (and free blogging accounts are certainly that), then it would be ethical to provide some means of negotiating with it. Google offers a loaded gun to anyone who asks; there’s no need to defend someone if they take the gun and hold up a bank with it, but if they do, at least make sure they get read their rights before they get hauled off.

Lastly, lest I be accused of promoting kid-glove treatment of those ignorant of the law and EULA, people who intend to work in the margins of the law should make sure they know what those margins are, and how to navigate them. It is their responsibility, after all, and ignorance is not a valid defense. I was careful to add a disclaimer that was linked in every MP3 post I wrote which provided contact information and copyright acknowledgment. I’m guessing these blogs did as well; they wouldn’t have been so friendly with the musicians they worked with if they didn’t. But it’s a first line of defense, and if I (and they) were serious about having a website that provided a questionably legal service, I would have put some serious CYA boilerplate in there.

This little fracas is, I am guessing, far from over, so we can expect further developments. But I felt it was important to weigh in following the event itself in order that I can weigh the actual results against what is most desirable. These disputes don’t always end happily, but they often serve to further demarcate ambiguous areas of the law, and future settlements will walk more freely once they clear the backs of their fallen brethren. That came out a bit more dramatic than I had intended, but you understand me. We’re making a new media omelet, and some eggs are about to get cracked.

August 12^th, 2010 at 1:05 PM

Neil Young to Tour Gulf Coast

Neil Young will be touring the Gulf Coast this September in an effort to aid those affected by the BP oil spill. He will be performing four concerts in the region and has asked that concert goers bring non-perishable food items to the shows. Those items will be donated to the Bay Area Food Bank, which serves communities in Alabama, Florida and Mississippi. Young has also enlisted the help of Tyson Foods, who will be donating 100,000 pounds of chicken—the equivalent of 400,000 meals—to the food bank. Additionally, all profits from the sale of limited-edition t-shirts, available only at the concerts, will go to the food bank. Young also hopes that the concerts will help bring funds to businesses in the area affected by the BP oil spill. “Millions of people who live along the Gulf Coast struggle with hunger and the economic impact of the oil spill has only made matters worse,” Young said in a recent press release. Dates for the concerts are below.

9/20 – Panama City, FL – Marina Civic Center
9/25 – Biloxi, MS – IP Showroom
9/26 – Mobile, AL – Saenger Theatre
9/28 – Pensacola, FL – Saenger Theatre

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Apple loses big in DRM ruling: jailbreaks are “fair use”By Nate Anderson | Last updated 2 days ago

So, Does “Indie” Really Mean Anything Anymore?

“Indie cred” used to stand for something.  It meant selling 7-inches at local record stores, not paying radio stations for spins, and not watering things down for mainstream acceptance.  But these days, everyone has direct access to the fan, major labels are weaker than ever, and traditional endpoints like terrestrial radio are losing influence.

Meanwhile, the worlds of indie and major seem increasingly blurred.  So-called indie bands are often upstreamed into the major label world (for example, Interpol onto Capitol), and so-called “indie distributors” like RED are often owned by majors (in this case, Sony Music Entertainment).  

So, what does “indie” really mean anymore?  And, is it dead?  That was the smart question asked by Paste writer Nick Purdy, who chatted with A2IM chief Rich Bengloff on the matter.  Bengloff pointed to continued access issues involving traditional brick-n-mortar retailers and radio stations, offering a reminder that old-school formats still wield considerable influence.  But Bengloff is stumping for many of the same issues as the RIAA, including anti-piracy objectives (A2IM supports ‘graduated response’); demands for recording royalties from terrestrial radio plays, and even DMCA-related concerns (A2IM is working to appeal the outcome of Veoh v. UMG).

So what is the difference then?  In the digital sphere, Bengloff also pointed to issues getting exposure on platforms like the iTunes Store.  But anyone can upload and chart on iTunes these days, and an artist website is a dedicated showcase and retailer unto itself.  In that light, is the term “indie” just another relic of a not-too-distant past?  It’s a question worth asking…

To read comments:

Source: digital music news

Music group wants to compensate artists for filesharing losses

No mention of compensation for our earsBy David Neal
Wed Jul 14 2010, 15:10

by Greg Sandoval

Source: CNN
LOS ANGELES–Here at the epicenter of the entertainment sector, two news reports about Google’s digital music plans have the music sector buzzing.

Elizabeth Moody, a well-respected attorney who has negotiated numerous licensing on behalf of Web music services, has joined the search engine, TechCrunch reported on Friday. Another story that appeared Monday in the New York Post says Google is in New York trying to rush a licensing deal through with the Harry Fox Agency.

Harry Fox licenses mechanical and digital rights for thousands of publishers. Last month, CNET reported that Google could launch a music service this fall. Google declined to comment for this story.

Launching a music service would be simple if all Google intended to do was offer digital downloads or a subscription service. But Google has more ambitious plans to strike an unprecedented cloud-music licensing deal with the four major record companies, music industry sources told CNET. That is why music industry insiders believe Google went outside for legal help.

The cloud is supposed to represent the next step in the evolution of digital media services. Apple and Google have both discussed building cloud services for both film and music, according to numerous sources at the major movie studios and record labels. Each company has discussed hosting their users’ media on their servers. Users could then access their movies, music, and e-books from Web-connected devices. At this point, Google appears further along in launching a cloud service than Apple, sources said.

To reach an agreement on cloud music will not be easy. The labels have yet to license music rights for the kind of offerings that Google and Apple are said to be working on. “There’s no template,” said one music source. “They’re going to be starting from scratch and that’s not easy.” What that means is that if negotiations go poorly, they could conceivably delay the launch offering until next year.But Moody could help speed things up.

She has worked for years with tech-music guru Fred Davis at the firm of Davis Shapiro, Lewit & Hayes, a firm that has represented such services as Spotify, MySpace Music, iMeem, MOG, iLike, Bebo and Playlist, according to TechCrunch. Moody knows all the major players at the big record companies and is well respected, sources said.

Coming up with a cloud deal won’t be Moody’s only chore at Google. Some of YouTube’s licensing deals that enable users to incorporate songs from the major labels into their videos are coming up for renewal.

Amid sales slump, artists find ‘more ways to monetize music’
Album sales continue to slide, and once-booming digital sales are flat, but there are bright footnotes in the recording industry’s gloomy 2010 midyear sales summary.
Consumers bought 148.4 million albums (both physical product and downloadable delivery) through June 27, down 11% from the 166 million sold to this point a year ago, according to Nielsen SoundScan.

“With so many different options in terms of how consumers obtain and experience music, albums aren’t the only game in town anymore,” says Keith Caulfield, Billboard chart analyst. “Because the album was the dominant format for decades, people became accustomed to quoting album sales as an indicator of how well the music industry was faring.

“Now there are multiple ways of measuring music’s popularity and sales. It’s hard to keep tabs on how much money Lady Gaga is earning from having her songs in Glee. There are so many more ways to monetize music. Albums don’t tell the whole story.”
Flattening digital sales might be explained by dwindling new adopters and a widening mobile-device landscape.

Justin Bieber’s My World 2.0 is second, trailed by Sade’s Soldier of Love and Lady Gaga’s The Fame. Eminem’sRecovery, which sold 741,000 copies its first week, will move into fifth place with second-week sales projected to push his total past 1 million.

Eminem had “the strongest first-week showing in 20 months,” Grein says. “I was starting to think we wouldn’t see those kind of numbers again. And in just three weeks (of sales), Drake will be over 700,000 and rank No. 10 for the year. Those are encouraging numbers.”
Hip-hop also plays a leading role in several of the year’s biggest-selling songs. Of the top 20, 11 are collaborations, most with rappers, “which shows how ingrained that sound has become in popular music,” Grein says.B.o.B’s Nothin’ On You featuring Bruno Mars or Bieber’s Baby featuring Ludacris “would not have been as successful without the rap element. Hip-hop gave them an edge in the current market. Even Katy Perry’sCalifornia Gurls works better with Snoop Dogg’s rap.”

Top songs so far, in descending order: Train’s Hey, Soul Sister, Black Eyed Peas‘ Imma Be, Lady Antebellum’sNeed You Now, Ke$ha’s TiK ToK and Usher’s OMG.
Pop’s dominance in the top five “make sense, since young fans are the ones buying songs,” Grein says.

Source: USA Today