What’s wrong with DMCA, ACTA and all that?

The name on the box doesn’t matter if the contents do something else

I’m no freeloader. I don’t have an iPod full of bootleg tracks. I don’t have much time for the shenanigans of either Big Content (“the web is eating my lunch”) or Big Technology (“copyright is breaking the web”). Or freeloaders. If I represent anything besides myself it’s artists and their rights, and consumers and their rights.

We’ve heard a lot of noise from both sides of the Big Web Content battle and seen a lot of legislation and legal activity too. Big Content has been suing everyone it can think of and Big Technology has been facilitating infringement in as many ways as it can. The impact on artists and consumers is what concerns me.

“I have confused things with their names, that is belief.”

Jean-Paul Sartre

Yes, it’s my old favourite. I’m not saying Jean-Paul would come down on the same side as me but I think he had a point. Behind the rhetoric are vested interests—actions speak louder than words. I simply don’t trust the motives of the record industry or the Internet lobby. We have seen what they say and we have seen what they do. It doesn’t add up.

The DMCA provides a safe harbour for web sites that (ostensibly without knowledge) host infringing material, on the understanding they will remove it when they know. DRM (from SDMI through the Sony rootkit fiasco and beyond) was intended to safeguard digital copyrights. More recently we’ve seen SOPA, PIPA, ACTA and many other proposals kick up an almighty row leading to no solution at all. And I’m sure there will be more (some variant of 3-strikes under ISP police is popular at the moment).

I support the record industry taking copyright infringers to court, whether or not it made sense they were entitled to do it. On the other hand the damages they claimed (in one case more than the annual earnings of the USA) were ridiculous. And their preference for settling overblown amounts without testing them in court wasn’t right. They had a righteous cause but treated the accused as if they were guilty, without trial.

Likewise the Internet lobby had a reasonable case for DMCA, it sounds rational, then we saw how Google, Grooveshark and others used it. The man in the street can’t get material removed from YouTube, even a journalist on The Guardian can’t get infringing material removed from Grooveshark. Google keeps record labels sweet by taking down their material on demand—even when it turns out not to be theirs at all. But what good is the DMCA for you and me?

When Big Content brought ACTA forward I didn’t trust them because we see how they use DMCA. ACTA, the Anti-Counterfeiting Trade Agreement, sounds like a good thing but we already had an international IP treaty, WIPO. Shouldn’t IP trade sanctions refer to that?

Where has all this legal noise got us? Is copyright better protected? Does the Internet offer us a great music experience? No and no. And while old and new vested interests wrestle each other for control of web content their propaganda is echoed by media pundits who take one side or the other. The debate is a classic establishment puppet show—self-serving outrage and mumbo jumbo.

If that debate mattered much I’d get stuck in, but I don’t think it does. This whole mess is being resolved slowly by events, not the pipe-dreams of big business academics and bureaucrats. Both sides are quite mad and they are both losing the war. Increasingly what matters is a new music economy with no big business champions or media voice, one that grows while the others shrink.

Creative Commons isn’t magic

creative commons

This is a response to a Wired Opinion article by Ryan Singel Dear Facebook: Without the Commons, We Lose the Sharing Web.

Creative Commons isn’t the only way for a layman to license and it’s not particularly flexible. A longish and interesting Twitter conversation with Ryan was inconclusive so here, without the 140 character limit, is what I think and why, and some background.

First, I should say I’m not pro- or anti-Creative Commons, I just don’t see a use for it. For readers who don’t know, this is where I stand, broadly, on copyright. I speak informally for artists and fans (nobody else) and I favour enlightened copyright protection for music and so-called “file-sharing”. I grew up in an age of free music radio and liberal sharing of recordings. I oppose copyright maximalists, anti-copyright lobbyists, Big Content legislation, Big Technology legislation, the DMCA system, DRM and its lovechild subscription streaming, and many other things.

I exploit copyright in this blog and on my web site. I allow public educators, students and certain others to copy and reproduce my work freely—some (normally web businesses who don’t ask) are made to take it down, and that has happened. I do this without Creative Commons or legal professionals. Copyright as it stands is flexible enough. It gives creators a default set of rights but how they enforce them is their choice.

If we imagine copyright as a volume control which comes set at 10, the rights holder can choose their own level anywhere from 10 to zero. On the other hand a CC license comes set at, say, 5 or 3 and is less easy to change.

CC is not an alternative to copyright and it is not anti-copyright, although many people think it is. Creators (authors, writers, composers, performers, etc.) who oppose copyright should simply make their work public domain. Creative Commons is not for them. CC is a set of boilerplate copyright licenses (no different in principle to other blanket copyright licenses) and it does only one thing the rights holder in the street cannot do—it provides legal wording for certain fixed licensing circumstances.

For creators like me, the cottage industry if you like, legalese is something of a shrug. I can read licenses and contracts, and I have successfully advised artists against record labels, but I don’t use any technical wording myself. I have never needed it. Independent artists I know online exploit their copyrights the same way (including sharing) without legalese and without Creative Commons.

Plain English is easy and copyright law is not hard to understand. My “licenses” say: you can use it; you can’t put it on your web site; you must credit the source; and so on. We know nobody ever reads their iTunes terms and conditions, are they more likely to read a CC license? Musicians can and do say: buy one share one; pay what you like; share freely; you can remix it; please give me credit; etc. I can hear the blood draining from lawyers’ wallets as I say that, but hey, it works.

Ryan says:

By creating legal frameworks for licensing content in more flexible ways than traditional copyright laws, Creative Commons became a core part of the original Web 2.0 movement.

Sharing, re-mixing and permission to do it predates Creative Commons. I can see no aspect of CC that is equal to the flexibility and effectiveness of plain language and the imagination of creators.

Of course, from a user’s perspective, rights that curtail free exploitation might be inconvenient.

On Ryan’s broader point, I care less about Facebook and its dwindling relevance to music than about Creative Commons so I happily leave that question to others. But it seems to me anyone publishing content by submitting it to the permanent flux of social network site T&Cs could perhaps seek a simpler solution.

One more thing…

…about copyright and licenses.

Or rather, two. Reading back over the past couple of blogs and comments, and seeing some new stuff on Twitter has triggered a couple of postscripts.

1. What the copyright abolitionists want

I can’t speak for them but it appears they want availability and access, and they blame copyright for getting in the way. As I have said, it’s not copyright that gets in the way it’s licenses.

In fact, what the abolitionists want is happening. But it’s not happening in Big Content. The entertainment and arts media is splitting into two layers: independent, cottage industry artists (such as DIY music) on one hand and Big Content on the other.

Media stories discuss Big Content as though it’s the whole story. It isn’t.

So, somewhat ironically, at the same time as the web copyright abolitionists start laying into copyright owners for their anti-social licensing behaviour most new artists are using copyright in a completely different way. One that features availability and access.

2. A timely example of that media bias

On Friday Billboard.biz ran this story Copyright Alert System Coming Within Weeks. But it most definitely is not a copyright alert system. There can never be such a thing.

I have hundreds of copyright works and some of them are indeed online but nobody will ever get an alert about listening to or sharing my music files.

The CCI CAS system is wrongly named. It is in fact a Licensing Alert System. The fact that CAS is sponsored by a narrow group of content interests (CCI includes the RIAA but not me or thousands of other independent artists) tells us they don’t represent copyright. What they represent is their own licenses.

Imagine there’s no copyright

I’ve been a musician and composer for nearly 50 years and always been aware of, and in favour of, copyright. It means I can decide how my music and lyrics are used. Since 1995, given the ease of copying material online, there has been a new debate about the nature, purpose and flaws of the copyright system. I follow this debate closely and study a lot of UK and USA legislation.

In the past couple of weeks (when I got involved in this particular conversation) I’ve been thinking about a world without copyright. Those involved in the discussion range from artists wondering how best to use the Internet, to free-culture fundamentalists who demand you agree with them before they even talk about their reasoning.

Fundamentalists are confused between copyrights and licenses. Copyright is set down in national law and different in each country. Licenses—such as Creative Commons, soundtrack sync, a blanket performance license, or a record label territorial sales deal—are individual permissions based on the national law.

Abolitionists protest, often quite rightly, about the behaviour of Big Content interests (movie studios, Major record labels and publishers) and blame copyright. If a Major label rips off their artists or customers that isn’t the fault of copyright. If you’re unhappy about Apple’s commission on iTunes sales that isn’t the fault of copyright either. Copyright simply gives the artist the choice, it has no control over what happens after the choice is made; after the record deal is signed or the tracks are submitted to an aggregator.

We covered most of the points in comments on the previous post but here’s one angle that’s worth bringing together.

Copyright abolitionists imagine that without copyright, artists would still be able to earn a living from their art while wider society enjoyed their work for free. That alone is quite a tricky argument to sustain but it doesn’t end there, they also imagine middlemen would be abolished. Let’s examine those 3 ideas:

Without copyright, artists would be able to earn from their art

If everything was public domain, everything an artist made could be copied. A great T shirt design could be sold in supermarkets. A box set of their music with special artwork and booklets could be re-manufactured in Asia. It is sometimes thought this would just be great publicity for the artist, but it’s hard to see how unrestricted copying doesn’t take food off her table. And would the middlemen pay her a cent? Why would they? Culture is free!

(Incidentally, I’m in favour of unrestricted music file-sharing but I draw the line at commercial third parties copying unique art without compensating the artist, unless that’s what the artist wants.)

Society should have free access to all artists’ work

Copyright doesn’t stop that happening—enlightened artists do share and it does help them.

Without copyright there can be no middlemen

Unfortunately you can’t abolish middlemen by abolishing copyright, unless you also ban the sale of goods and aggregation of content. There will always be shops and superstores. They will always need goods. A free supply of art and design ideas would be welcomed by big retailers. Many Internet sites make their living by aggregation (Google, YouTube, Grooveshark, and many others including the lyric sites Drew Stephenson mentions). Just consider all the places that copy your stuff now, then add the other commercial locations prevented by current law.

Abolitionists seem to think a level playing field would allow buyers to seek out the original artist rather than using a middleman but they wouldn’t. People pay a big mark-up for aggregation in a superstore and inevitably choose Internet aggregators over individual artist sites. That’s what they do now—the absence of copyright wouldn’t change that, it would just make art cheaper for the middlemen.

If you have a solution to these problems I’d be pleased to hear it, but copyright is designed to protect the artist in a world of commerce and unless you can change the world it seems we are stuck with it.

Copyright is not really complex for individual artists. If you want to do business in your own way it should be easy to describe it to customers. “Pay what you like.” “Buy one share one.” “Pay what you like, or nothing.” “Virtual tip jar.” “Free music, buy a T shirt.” The possibilities are as broad as your imagination, just browse some artist sites or Bandcamp. Lawyers will go purple, and they do have a point but only a small one. You need to make sure your licenses (“Pay what you like” is a license) are coherent and don’t conflict with other licenses but that’s just common sense. Don’t make two exclusive deals in one territory for example.

You can’t transfer your ownership without transferring your ownership, so don’t think you are endangering your copyright by offering your stuff for free. Don’t feel compelled to add legal mumbo-jumbo: “Pay what you like to enjoy unlimited personal use for yourself and your immediate family, limited to the tracks you have chosen, in the territory where you are resident subject to copyright law.” I don’t need to explain why that’s bad, do I?

(Some artists also fret about their best track being stolen by Sony and making millions for an X-Factor runner-up. That isn’t really a problem of copyright either. If you make your stuff widely shareable and it does get stolen by a Big Content user you have the problem of suing them. Your best bet might be to shame them on social media.)

You may prefer to use Creative Commons licenses but they are limited to certain specific uses and although many people think otherwise they too are based on national copyright law. Creative Commons is a set of copyright licenses.

© is good for artists, ask them

Today I was copied into a Twitter conversation about copyright. It began with an interesting article about The Limousines and a rather badly informed interviewer taking issue with crowd-funding. From there it developed into a downer on copyright in general.

Let’s consider the Torrent Freak article quoted here:

tweet

140 characters won’t do it justice, so here’s my reaction.

Rick Falkvinge says gatekeepers take 99% of the money. That’s true. I’m well aware of the Tamla Motown story and how artists are gouged by the record industry but that’s a feature of the record industry not copyright.

I’m not interested in labels, especially big labels, and I see publishers as largely incompetent. The future—for creative music at least—is happening outside of all that. Independent artists (the ones I’m interested in) don’t give up 99% of their earnings to gatekeepers. They rely on their copyrights.

Rick Falkvinge says “Eliminate those gatekeepers and those 93% of the money go to artists instead – or at least, a significantly larger portion of it.” But if the artists have no legal claim to their work how can they earn from it?

We don’t have to guess how big business would behave in the absence of legal ownership. Sam Tarrantino (Grooveshark) makes money out of other people’s work. So does Kim Dotcom (MegaUpload). And so, of course, does Google and many others. They pay the artists nothing.

Tunecore screens uploads for tracks that are simply copies but they still get through and often appear on iTunes and other retail sites. Without ownership of their work how can the money “go to artists“?

Rick Falkvinge says:

The myth that the copyright monopoly is needed for any kind of artistry to make money, or even to happen in the first place, is an obscene myth perpetuated by those who have something to gain from skimming off 90% of the artists’ money by denying them an audience in an old-style racketeering.

But I can point him to hundreds of artists without any record label who say otherwise. Perhaps he can tell us how composers who write for TV and cinema would get paid (composers are getting a PRS distribution right now). Without copyright that money wouldn’t find its way to artists, it would simply stay in the pockets of TV and film studios. How would artists get paid by radio?

The old mainstream system was and still is corrupt but because of greed not copyright. The new technology companies want everything for nothing and would rather see the back of copyright. The old and new mainstream are both playing the same game.

Another music biz links post

The mid-to-end August pick of my Twitter lists and general browsing is this. I read everything I retweet or post in these round-ups so if your music biz interests vaguely coincide with mine you should find them interesting and sometimes infuriating.

Interesting looking trailer from Musformation.com about a forthcoming video.

Wired UK French culture minister thinks Hadopi is a waste of money—France’s three-strikes ISP infringement policing under threat.

CMU Most stakeholders satisfied with Universal’s EMI concessions, but some push for more the UMG/EMI negotiations drag on.

Search Engine Land How YouTube Will Escape Google’s New Pirate Penalty Google said they would degrade search rankings for infringers… apart from YouTube of course.

CMU YouTube top music source for young Americans, though CDs still selling a big noise a week or two ago was a report revealing that young people use YouTube for music a lot.

Billboard.biz Updated: Jeff Price, Peter Wells Out of Tunecore astonishing news the public face of Tunecore has left the building. Users will be feeling unsettled, Jeff is a great champion of DIY and indie artists.

Buzzsonic A useful collection of music infographics, cartoons, etc. Adrian Fusiarski’s Pinterest page.

CMU Streaming revenues growing fastest, though overall music spending still declining—there was a report by Strategy Analytics about streaming and physical sales. Interesting but limited to the usual not-comprehensive sources.

Digital Music News A Breakdown of Every Single Dollar a Major Label Makes… in this case WMG, including publishing by the look of things (I thought Warner publishing was separate).

All Things D TuneIn Creeps Up on Pandora, With 40M Active Listeners a web radio aggregation app grows large.

Prescription PR Is social media really that helpful to bands? refers to a Guardian article asking the same about authors of books.

Paste Infographic: The Best Record Labels (2004-2011) good infographic showing record sales by year by label, not for the colour blind though.

NPD Group Teens Credit Word-Of-Mouth Most Reliable Shopping Source the No Shit Sherlock award this month goes to NPD for discovering word-of-mouth is how most teens pick up on the music they buy.

Daily Herald Spotify, Pandora spur U.S. digital music sales past CD purchases—another press release, about digital overtaking CDs, again. Nobody knows when or if this has happened. So many tracks and albums are not monitored.

Music Technology Policy Interview with Andrew Shaw of PRS for Music on Negotiating with Google a guest post by Jonathan David Neal revealing what happened behind the scenes with Google and PRS.

TorrentFreak The Copyright Industry – A Century Of Deceit Rick Flakvinge’s summary is useful and accurate but I don’t agree with his conclusion.

New York Times The New Rise of a Summer Hit: Tweet It Maybe how social media is pre-empting the old record label and radio hit-making process.

DGM News A Letter To Lucien Grainge by Sid Smith at DGM (Robert Fripp’s music company). UMG/EMI still confused about their non-ownership of the King Crimson catalogue after 19 years.

Soundboy Where free streaming music lives 2012 Ian Hogarth of Songkick analyses his online listening. I’m interested in this because a lot of music biz people claim to be Spotify-only (“I don’t have any CDs, just Spotify” what?). At least 25% of my record collection is not on any streaming catalogue, Spotty included.

Hollywood reporter Newt Gingrich Settling Lawsuit Over Use of ‘Eye of the Tiger’ good discussion of the legal grounds and case histories of liberal musicians suing Republican candidates.

Barry Sookman Fair use for Australia? informative look at Fair Use in Australia and elsewhere.

New York Times Pandora and Spotify Rake in the Money and Then Send It Off in Royalties

August links, articles and news

I’ll be distracted by Logic and music for a while longer, so no time for ‘proper’ blogs at the moment. In the mean time here’s a bunch of links from the first part of August. I have posted some of these—among many other things—on Twitter already. The big news of the month so far is the second part of Hooper’s copyright report with proposals for the Digital Copyright Exchange, now called the Copyright Hub (see below).

GigaOM Freemium has run its course another theme of the month has been the decline of Facebook and the growing flaws in the ad-supported web site economy.

Bandcamp Merch! Bandcamp adds merchandise functionality to its already excellent and rightly popular indie music store.

Ars Technica Apple’s case that Samsung copied the iPhone—in pictures

Wired UK French culture minister thinks HADOPI is a waste of money (that’s 3-strikes in English).

Wired UK How Apple and Amazon security flaws led to an epic hacking is a must read which reveals Apple IDs and Amazon credit card details are very easy to break into. The promised follow-up article did not appear yesterday but I will look out for it.

Hypebot Billy Van went from 2,000 to 100,000 fans (Case Study)—but the metrics exclude anything I would consider meaningful growth. It may be there but I can’t see it. Some of the comments also ask revealing questions.

All Things D TuneIn Creeps Up on Pandora, With 40M Active Listeners

The Atlantic How you turn music into money is another article about the truly spiffing DIY goddess Zoe Keating.

Dangerous Minds A statement by Nadya Tololokonnikova (Pussy Riot)—making our punks look rather tame, Pussy Riot will probably be jailed for calling out Putin as a faux democrat and the Russian Orthodox Church as political poodles.

The Telegraph Musicians getting ‘more than half of royalty income from online streaming’ was probably the hyperbolic story of the week—some musicians may be but the whole thing seems to have been cooked up for PR, there are few hard facts and no overall stats.

Music:)Ally Interview: DIY musician Alex Day talks fans, the irrelevance of radio and why YouTube changes everything

And finally the second part of the Hooper Report analysed by Out-Law.com New UK ‘Copyright Hub’ would help address problems with copyright licensing framework, report says with a link to the pdf of the IPO report itself.