The strange plight of web copyright

I’ve watched government Internet regulation since the USA Digital Millennium Copyright Act (DMCA, 1998). The Consumer Broadband and Digital Television Promotion Act (CBDTPA, 2002) proposals which followed—and failed—were insane. Over here we have our original Copyright Designs and Patents Act (CDPA, 1988) modified by the the EU Copyright Directive (EUCD, 2001) and our subsequent Digital Economy Act (DEA, 2010) rushed through by the dying Labour administration.

The USA is at it again. Combating Online Infringement and Counterfeits Act (COICA, 2010) didn’t pass into law but has returned as Stop Online Piracy Act (SOPA, 2011) and Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (Protect-IP, 2011). You may have seen some of this debate online.

Cameron, the UK Prime Minister, has set up the Hargreaves Review (a rehash of the previous government’s Gowers Review) to modernise UK copyright online. He believes—mistakenly in my view—that copyright must be more flexible to support Internet entrepreneurs (in his words, like Google).

It’s one of those debates that has become polarised into right and wrong. If you criticise DEA and SOPA you must be a freetard; if you don’t you must be a dinosaur. Unfortunately, that sums up 99.9% of the whole discussion. Of course, nothing is that simple. These regulations involve many complex issues: the role of ISPs, copyright registration, license databases, orphan works and collective licensing among many others, as well as the technology that goes with them.

The big problem is governments don’t understand the Internet. Even the best-informed seem to think it must be easy to “clamp down on piracy”. It isn’t. They don’t even have a good grasp of copyright. Well, it’s not easy.

Big Business lobbyists are no better. Major record labels have long confused file-sharing with “piracy”. Every download which doesn’t pass through their cash register is theft.

Internet Utopians don’t help. They would be quite happy if rights were swept aside so that information could finally be free.

It’s a mess.

What’s the problem? We had a (kind of) working copyright law. Have things really got so bad that we need all this mayhem?

I don’t think so.

Some changes are needed but the basis of copyright—that the creator owns their work, for a time, without asking—must stay. And the interests of Big Business are not so threatened that they must be given control of what gets published on the Internet.

The DMCA safe harbour which allows Grooveshark and YouTube to host infringing material is not working. The complex licensing system which charges users and rewards owners has become distorted, and territorial licensing is somewhat daft in the age of the world wide web.

In recent years PRS has recognised the growth of individual rights owners by lowering its membership fees and distributing income at small venues directly to the performing songwriters and composers who earn it. By contrast, government copyright drafting and legislation remains dominated by Big Business and large copyright owners—the Major record labels and publishers.

The history of copyright, since 1709, is patchy. Vested interests have frequently abused their power. Lobbyists from all sides are once again making all the noise but copyright is important for everyone. Joe Bloggs’ cat videos can earn more than a big label pop record and small artist Facebook pages should not be threatened by spurious takedowns. Let’s hope government is listening to their people as much as the lobbyists, and if you have an opinion let them know.

Who owns the artists?

This will be an interesting case This Is War: MegaUpload Now Suing UMG Over DMCA Abuse…

The media tend to side with MegaUpload on the basis of artist approval, or with UMG on the lack of it, but Major label artist contracts are normally exclusive regardless of the wishes of the artist. It’s entirely possible UMG does own copyrights in the MegaUpload song even if all the artists gave their consent. Without specific releases from UMG the artists’ consent is not enough.

Billboard reports

Let us be clear: Nothing in our song or the video belongs to Universal Music Group. We have signed agreements with all artists endorsing MegaUpload,” MegaUpload CEO David Robb told TorrentFreak. “Regrettably, we are being attacked and labeled as a ‘rogue operator’ by organizations like the RIAA and the MPAA.” … “UMG didn’t do proper due diligence before sending the takedown notice… And each of the other artists, including Will.I.Am, signed a broad written agreement allowing the use of their likeness and their statements in the context of the video.

Statements are probably OK, but some likenesses and musical works are probably assigned exclusively to UMG.

It seems fairly unlikely to me that MegaUpload has examined 1,800 or more pages of big label contracts to see if they can make this record. The chances of getting it wrong are high. On the other hand they may understand that perfectly well and think the benefit of the PR outweighs the possible legal costs.

Update: Friday 16 December 2011

The debate continues. This BoingBoing post claims:

…Universal has some sort of special deal to arbitrarily remove stuff it doesn’t like from YouTube, even if that stuff is legal.

Words almost fail me. I’m no fan of UMG or the Major labels but it’s obvious a commercial contract between UMG and YouTube has conditions. Their contract won’t be limited to excluding illegal uploads. The normal Major artist contract is over 100 pages, today’s 360° lockdowns make it unlikely the artists themselves have any say in the matter.

This CMU report of the same press release manages to apply more thought and less hysteria to the news.

Of course, MegaUpload has got the publicity it wanted and public sympathy was never going to be with the biggest record company on Earth. But many journalists and bloggers covering this story, having first decided which side they are on, have leapt to predictable conclusions. Without access to the contract details and some expensive lawyers it’s impossible to guess what the judge might say.

Update 2: Friday 16 December 2011

Well, it looks like BoingBoing was right after all. Apparently UMG offered no defence and the video is back up. UMG out-lawyered, who’d have thought it?

Update 3: Sunday 18 December 2011

YouTube have denied there is any contractual takedown agreement with any of their partners, including the big labels.

Our partners do not have the right to take down videos from YT unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists, which is why we reinstated it.

It’s hard to tell if this story is finished and if we’ve seen the full truth yet, it seems likely we haven’t. But we have learned some intriguing things about UMG. Although they contest the legality of cyber-locker (cloud account) music sites like MegaUpload UMG seem to have no way of dealing with them. And although UMG’s entire business is based on exclusive 360° contracts with their artist roster MegaUpload was able to make a promotional video using UMG artists (among others) and post it on YouTube. Finally, for now, UMG used the YouTube Content Management System to block this video in the knowledge it would be overturned by a court. That seems pretty desperate.

Access v. ownership

Here’s an interesting blog from Mark Mulligan Why The Access Versus Ownership Debate Isn’t Going to Resolve Itself Anytime Soon a couple of days ago. I agree his general argument but I think the case for ownership may be even stronger than he suggests.

Mark Mulligan

Ever since they buried Napster the record industry has tried to breathe life into the rental model. This is what they always hoped the Internet would give them. Pundits have talked about the inevitability of streaming services for over a decade, ignoring the evidence of iTunes. The current Spotify campaign is just the latest example.

Where I differ from Mark Mulligan (and Spotify et al) is those bottom two aspects: Play Everything and Share With Everyone. His illustration gives these points conclusively to the access model. But is that true?

When will we be able to “play everything” through Spotify or any other streaming service? I have written before about the myth of everything everywhere. No streaming service offers everything in my record collection, let alone everything in the charts. The Majors’ cold feet over On Air, On Sale is just another fly in the ointment.

And when will we be able to Share With Everyone on Spotify (or anything similar)? Spotify has 10 million users and many people I know aren’t there, or on Facebook, or any of the other media darlings. The glaring problem here is walled gardens: Spotify users can’t share everyone’s playlists, even with the new apps. This is what the pundits call content resolution. The log-ins that protect different services stop them being open and useful.

People don’t really need “everything”, they just need what they want. For me Spotify comes up short but my record collection is complete, and when I want something new I simply add it. It won’t always be on Spotify, so I give that point to ownership.

And people never really want to “share with everyone”, they just want to share. Spotify can share on Facebook but not to people who aren’t there or to Friends who turn off share-bots. Is there a real sharing problem for people who aren’t on a streaming music service? We have YouTube, email, web sites, blogs and all the walled-gardens. Streaming services have a way to go before they can equal the web at large, when it comes to sharing.

The Great British Music Survey

It’s funny how themes crop up from week to week. Here’s another baffling media story.

Over the weekend we saw the Great British Music Survey from IPC a media conglomerate (NME, Country Life, Woman’s Own, etc.) under the headline “Women are the biggest spenders on music”. I couldn’t track down much more about the survey itself or how the figures had been calculated.

I guess these are the results from a questionnaire or telephone survey but the numbers were presented as facts and here’s the one that really stands out: “men spend more to own music (£381 annually versus women’s £327)”.

£380 a year is 10 times more than the average UK spend on recorded music, although it may be the average claimed by people who responded to this survey.

Adding Up The Music Industry 2010 (pdf) produced by Will Page and Chris Carey for PRS Economic Insight pegs wallet share for recorded music at about 0.13%. That would give Great British Music Survey participants an average income of £292,000 a year, and rake in a staggering £19 billion for UK recorded music alone.

Taken at face value the IPC figures just don’t add up without basic information about how they were gathered and calculated, and what they really represent. But like so many media statistics I’m sure we’ll see a lot more of these numbers in future.

The excellent Radio 4 programmed More Or Less calls these Zombie Statistics, data that is dead but won’t lie down.

Some not extremely disappointing facts

Sometimes I come across an article which makes me wonder if everything I think about the music industry is wrong. 12 Extremely Disappointing Facts About Popular Music gave me reason to ponder, albeit briefly, this week.

Now, I’m sure these facts are right and they are interesting but what they say and what they suggest are two entirely different things. This is quite a neat demonstration of how the media presents information for impact. It doesn’t really mean what it seems.

So Creed, who have been working their 4 albums for 15 years, are quite likely to outsell Hendrix who only recorded in his own right for 4 years, then died. Hendrix still sells hundreds of thousands of albums each year 40 years after his death. It remains to be seen whether Creed will equal him in the long term, and how about all the records Hendrix played on before The Experience?

Led Zeppelin were an albums band and Rihanna is a singles artiste. In the age of albums Zeppelin released no singles in the UK, they were happy to sell albums (singles were released elsewhere). Rihanna is working in the age of digital singles and deliberately makes frequent releases. On the other hand Led Zeppelin has sold 10 times as many albums as Rihanna (200 million to 20 million). And it’s easier to get a number one single today than it was in the 1970s. REM has sold more albums than Rihanna (83 million) and so has Depeche Mode (75 million).

Next we have a couple of Beatles stats: Ke$ha’s “Tik-Tok” sold 12.8 million to The Beatles “I Wanna Hold Your Hand” 12 million, and Flo Rida sold as many as “Hey Jude” (8 million). Are either of these disappointing? The Beatles are arguably the best selling recording artists of all time, one of the few to sell around a billion records. Flo Rida may have equalled one Beatles’ single but they had two which sold more (and “Yesterday” had over 2,000 covers).

I won’t labour the point but the conclusion is pretty obvious, if you choose the right statistic it’s possible to imply anything. And if you put a bunch of different, carefully chosen stats together they seem to reinforce each other whereas the opposite is true. So yes, Katy Perry has just released as many singles from one album as Michael Jackson did from Thriller but her sales—which the other facts suggest are important—are nothing like Jackson’s.

It’s a fun article and it made me think, and sent me off to look up some numbers, but it’s not really disappointing at all. The classic acts who get shown in a bad light by the odd comparison really were as good as we remember, and the pop acts who racked up some good numbers deserve credit too but not enough to make a real difference.

Spotify’s reality distortion field

I won’t talk about the embarrassing media event, how Daniel Ek is not a charismatic presenter or how his partners (Jan Wenner and 4 other app providers) were made to look like goons in front of the press. Or about the much more interesting Twitter #askSpotify feed which raised many good questions that went unanswered. Instead I’ll just correct a few details. When you see the Spotify gospel churned by lazy journalists allow yourself a knowing smile.

Spotify has long claimed it is the second biggest European digital music revenue stream. That would mean it either pays the music industry more than iTunes or more than YouTube. It doesn’t. There are also many digital music B2B companies who must have paid more than $150 million.

Ek makes a big deal about Spotify being a game-changer and so on. Until yesterday it was a big online music jukebox with shared playlists and now it has the extra functionality its rivals have had for some time. Before Spotify, claims Ek, the web was silent. He means before October 2008 and the web was most certainly not silent. (Pandora, which launched before Spotify, has 80 million users, 40 million of them active. Spotify has 10 million active users, so even allowing a bit of poetic license Ek is several orders of magnitude adrift.)

Yesterday Ek made a big deal about the Spotify “everything, everywhere” service. All the music you want wherever you want to play it. There are just two problems with that: they don’t have everything and you can’t play it everywhere.

Reports from iTunes Match (a slightly bigger catalogue than Spotify) indicate people find about 20% of the tracks they own missing from the Apple database. Spotify users will experience the same kind of gap left by deleted back catalogue albums. On top of that they won’t find the latest tracks from Adele and Coldplay, or the hundreds of indies who won’t supply Spotify on principle. Gracenote, the metadata database, holds the details of 100 million tracks and even that comes up short on occasion. Spotify doesn’t have everything.

But you can use Spotify everywhere? No, there is no Spotify access on your iPad or Blackberry. In fact yesterday’s music app announcement was all about the desktop, so premium subscribers who can use some mobile devices won’t be able to get the game-changing apps on their iPhones either. Spotify doesn’t work everywhere.

Ek is clearly deluded, or not too fussy about what he says. But if you want to see a reality distortion field even bigger than Steve Jobs’ take a browse through that #askSpotify feed and consider whether this really is the awesome company with happy customers you read about in the mainstream press.