Two Simple Facts about Technology and Piracy : iTunes Vs. YouTube


It’s about intent. Machines doe what they are told to do by human beings, exploiting other human beings.

Originally posted on The Trichordist:

Fact number one.

Unlike Google’s YouTube, Apple’s Itunes Store does not have a piracy problem, nor does it have an unmanageable issue with DMCA notices. This is often explained that this is because Apple does not allow user generated content from just anyone, therefore there is a barrier to entry that prevents such issues. But this is simply just not true, anyone can upload an album of music to Itunes using any one of the third party aggregation services such as Tunecore or CDbaby. And yet, there are not (as far as we know) hundreds or thousands of DMCA notices and content take downs on Itunes per day, as there are on YouTube. So why is this? In a word, intent.

If Apple, Spotify, Amazon and virtually every other legal and licensed distributor of digital music can put into place, the checks and balances that are capable of managing these…

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Full Post: You Can’t Have A Have A Healthy Market Economy Without Property Rights. Why Do So Many In Tech Blogosphere Want To Abolish Cyber Property Rights And Cripple The Cyber-Economy?

Originally posted on The Trichordist:

By David Lowery

Can you imagine the outrage if leading voices in Corporate America started advocating that we abolish all individual private property rights? Citizens could no longer own any property. All property would be collectivized. Citizens could no longer profit by creating and owning things. Further what if these same corporate voices used the justification that private property rights were hindering their ability to innovate?

We’d all laugh. Or man the barricades. This would never happen, right?

Well it is happening. This is exactly what many in the tech blogosphere are arguing we should do in the cyber-economy. These faux revolutionaries are arguing that Intellectual Property and the Internet are incompatible so in the name of “freedom” Intellectual Property must go. In the cyber economy ALL property is intellectual property. This means these folks are advocating for no private property in cyberspace. What does that sound like? Depending on…

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How Copyright Encourages Creativity and Opportunity in Hollywood

Originally posted on The Trichordist:

We hear a lot from the copyleft and opponents of Artist’s Rights that copyright stifles creativity, but this is simply not true. We’re not going to go down the tired road of the arguments about remixing, which can be read in this excellent article at Copyhype titled, “Remix Without Romance.

The truth is, the best ecosystem for creativity is the one where all stakeholders are compensated. This is why in the early 90s sample clearance statutes were defined, and as a result we’ve seen some of the most innovative music, in the history of recorded music. This creativity has been achieved legally by creating fair and balanced policy. Historically, that is how policy evolves, such as it did with phonographs and radio — when both were getting off the ground, the law eventually recognized that artists have a right to be compensated, and both eventually flourished, also benefiting all…

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Thank you @jannarden: AMP Radio hears artist voices, does the right thing and drops the QuickHitz format! #irespectmusic


The artists, united, will never be defeated!

Originally posted on MUSIC • TECHNOLOGY • POLICY:

MTP readers will recall Jann Arden and the many artists who stood up to the challenge to artist rights from the “QuickHitz” radio format at a Calgary radio station.  “QuickHitz” advertises itself as broadcasting “Twice the Music”–and gets over the space-time continuum by cutting in half the already short singles edits of popular music.  (Full disclosure:  I got to know and respect Jann Arden when I worked at A&M Records in Hollywood back in the day.  Jann’s a real treasure and makes compelling records.)

That’s right–AMP plays more music by playing less.  Dare I say it:  Less is More.  But let’s not rub it in–the station has seen the light after Canadian and American artists rallied behind Jann Arden to make their voices heard.  It’s important to understand just how much chutzpa this takes–the stick that broadcasters have held over artists challenging radio for decades has been that silent threat…

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Bit Torrent Mastermind Bram Cohen’s Interview with Andrew Keen

Originally posted on MUSIC • TECHNOLOGY • POLICY:

Notice that Cohen never–never–acknowledges that his uTorrent application powers an advertising supported piracy model or even that there is an advertising supported piracy model.  People download music for free from Facebook and Myspace.


Also note that he says all the BitTorrent employees are in San Francisco–that doesn’t include the development team in Belarus, I guess.

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The Human Rights of Artists

Originally posted on The Trichordist:

By Chris Castle

Given the plight of Chinese poet Zhu Yufu today is a good day to think about the human rights of artists. The human rights of artists is a different concept from intellectual property rights, such as copyright. Intellectual property rights are created by national laws, and the human rights of artists are recognized as the fundamental rights of all persons by all of the central human rights documents to which hundreds of countries have agreed.

These rights resonate in a number of international and national documents, but a good international agreement to consider first is the International Covenant on Economic, Social and Cultural Rights that was ratified by the United Nations General Assembly on December 16, 1966. It is important to remember that human rights are fundamental, inalienable and universal entitlements belonging to individuals, individual artists in our case. As a legal matter, human rights can be distinguished from intellectual property…

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Does Failure to Pay Pre-1972 Royalties Put Trillion Dollar Hole in Pandoras Bottom Line?


Pandora’s Harrison may soon be asking “Brother can you spare a trillion?”

Did Pandora’s legal eagle Chris Harrison create a  trillion dollar hole in Pandora’s balance sheet?

Last month’s earnings report by Pandora was interesting in many ways. But the most interesting thing about it was what was not mentioned. The stunning omission of potential liabilities associated with Pandora’s refusal to pay royalties on pre-1972 sound recordings.

Under the leadership of Chris Harrison, Pandora’s legal team has adopted a bizarre interpretation of federal copyright law that in essence argues that statutory royalties for pre-1972 sound recordings were not federalized. As a result Pandora is not paying royalties to performers on recordings made before 1972. This is potentially a significant amount of revenue for the money losing company.  (Pandora trumpets Non-GAAP “profits”, or “Non Generally Accepted Accounting Principals” calculations of profit. Or as prefer here at the Trichordist “Unicorn Dollars”).

While Sirius and Clear Channel have adopted this funky legal rationale as well, it should be noted that more sober firms like Apple and Microsoft have not.

The problem with this legal strategy is that if this goes to court, win or lose,  Pandora has created huge liabilities either way.

Pandora “wins”

Let’s give Harrison the benefit of the doubt. Let’s say that the federal copyright act in fact did not federalize performance royalties for sound recording copyrights pre-1972. The only logical conclusion is that the State laws that protected sound recordings in 1972 still cover those recordings.

Wow. Time to dust off the bell bottoms and dig into some vintage state laws.

There are 50 states, Washington DC, and several US Territories that could now be potentially brought into the dispute.(There are pre-1972 performers and rights holders in every single US state and surely most territories). It’s highly likely that at least some of those state protections would kick in again. All it would take is one performer or rightsholder  from one state to successfully assert their rights and all digital broadcasters would be screwed.  This is not such a remote or theoretical possibility. I’m told that The Turtles’ lawsuit against Sirius for $100 million dollars already anticipates this. (The Turtles have sued Sirius in NY, Florida and California so if The Turtles beat Sirius…Pandora could be next.  In NY, Florida and California for starters.)

But more troubling, is the fact that if there is no federal copyright protection for these recordings, then Pandora lacks a clear compulsory license–or any license–to play or reproduce any of these recordings. Compulsory licenses are what allows the company to play the recordings without negotiating directly with the rights holders. All webcasters rely on these compulsory licenses so they don’t have to go around and license each and every single song.

This would be a clusterjam™ of epic proportions. I don’t’ think it is possible to effectively quantify the  downsides of this outcome. Uncharted territory. Total uncertainty.  It would effectively throw not just Pandora but the entire broadcast, webcasting and web industry  into chaos.  (NAB are you guys paying attention to this shit?  You might soon have a very big problem on your hands.)

Pandora can’t possibly want to really win this one right?

Pandora Loses.

Alternately it’s equally bad if Pandora loses.  Suppose a legacy artist like The Turtles sues Pandora and federal courts determine that performance royalties for Pre-1972 recordings are in fact covered by the federal copyright act.   First Pandora would presumably have to pay  for years of royalties owed on ALL those pre 1972 recordings.  (Do they have reserves for this? A cursory glance at their financials did not show this.)  But the real problem for Pandora is that they could be liable for huge penalties for copyright infringement. And I mean GDP scale liabilities.

Pandora CEO McAndrews noted in 1st quarter 2014 earnings that pre 1972 recordings represented about 5% of the spins on pandora.   So 5% of all of Pandora’s spins would then be infringing.   McAndrew in that same report noted listening hours of 4.6 billion for the quarter.   So conservatively ten songs an hour that means 46 billion streams a quarter or 184 billion streams a year.  Now by McAndrews own reckoning 5% or 9.2 billion of those streams are infringing each year.   What are the penalties for willful copyright infringement?

$200-$150,000 per infringement.  So on the low end that’s 1.84 trillion dollars.

Now obviously Pandora is not gonna get fined a trillion dollars.  But if they lose a class action suit because of this?  The damages will be substantial.   Will it be $100 million? $250 million? $1 billion? If the Turtles are asking $100 million from Sirius,  BILLIONS is not an implausible number. Obviously it’s a substantial risk (even if the relatively short 3 year federal copyright infringement statute of limitations applies–which Pandora says it doesn’t). 

I’ve had some people suggest that Pandora could settle bit by bit with each major record label which have aggregated most of these recordings  and hence limit their liabilities. But this seems unlikely to me as:

1) Record labels no longer need Pandora as they have substantial interest in Spotify and Beats.

2) Pandora’s scorched earth policy towards rightsholder has left it NO friends in the music community . Zero. Zilch. Like,  “I wouldn’t even piss on you if you were on fire.’ That kind of “no friends.”

Further these missing royalties are not only due to record labels, federal laws require 45% of these revenues go to the performers.  Pandora would have to buy off all the performers as well.

McAndrews and Harrison’s best hope is that they can keep kicking the can down the road for a few more years.  Just enough time for all those options to vest and leave some sucker holding the bag.


Pandora: money trumps morality, ran ads for anti-gay group.

Screen Shot 2014-08-15 at 1.12.23 AM


Above Pandora CFO Mike Herring shows how down with the gays Pandora really is!  The link goes to a custom Pandora radio station for “Oakland Pride Radio.”   Wow that’s really going out on a limb there Pandora! I bet some of your best friends are gay! I wonder what Oakland Pride thinks of Pandora using them as a prop to excuse their donations to an anti-gay demagogue?  And what will they say when they find out Pandora ran ads for “Speak Up University?”   


When I worked for Pandora, I took my job seriously. My title was “Listener Advocate”, and, as a listener myself, I tried to bring the opinions of the listeners to the company. Of course, most of our job was helping people to be able to simply listen to the online station, sort of minimal tech support. However, there were several legitimate things that we initiated meetings with management about, and many times these were met with new ways to word our responses to ameliorate listener concerns.

After I had been there for about a year, and had responded to many complaints about specific ads, we started hosting tons of ads for Meg Whitman, who was running as the republican candidate in the California gubernatorial race, 2010. She came from being CEO of Ebay, (then to Hewlett-Packard afterwards) and was rich as hell, and apparently spent more of her own money on the race than any other political candidate in history ($144 million, $178 million including donations). The company was thrilled to take her money and run her ads all the time, which of course generated complaints, which I thought a lot about, and then brought them to the company.

I advocated on behalf of establishing a rule that we take ads only selling goods and services, and nothing dogmatic (i.e. politics or religion.) The company’s party line was that we would accept any advertising that ran on “major mass media”, ignoring the fact that the term “major mass media” is essentially so vague as to be meaningless. For example, we explicitly stated that we would not accept advertising about pornography or gambling, while Clear Channel, which is obviously mass media, ran billboards advertising gambling casinos all up and down the state.

I had several conversations with Joe Kennedy and Tim Westergren about this. Joe basically heard me out and then dismissed me. With Tim it was more difficult. One thing that I pointed out to him was that when we played political or dogmatic ads, it reflected on the company’s political stance. He absolutely did not believe that, he said “TV stations always run advertising for all political parties”. I said, “yes, but we see television companies as being driven only by money, so we distrust them implicitly.” Tim, as well, refused to believe that his public political action had any bearing on how the company was seen by the public-at-large. I thought that this was very short-sighted of him, and said to him that simply because he was very visibly active in politics, for example asking our listeners to advocate on the company’s behalf vis-a-vis royalty rates or other congressional mandates, that anything political that the listener hears on Pandora would be viewed with the inherent politics of the company in mind.

I brought up the hypothetical situation of running ads promoting Proposition 8, which was on the California ballot at that time, which was opposing same-sex marriage.

Tim blew me off on this, adding cryptically “I’d love to argue about this, I’m a student of Chomsky!” If he actually were, I would think he would currently be living in some sort of nightmare of cognitive dissonance. Anyway, I still advocated the idea of only advertising goods and services, and questioned the whole idea of trying to be parochial to “major mass media”. If we wanted to be a shining light in the field of “radio”, we should make our own rules, we absolutely did not have to be mini-Clear Channels. I tend to think that making our own rules about such things would work out better in the end, both internally and externally.

I didn’t realize at the time how the lip service we gave to being “pro-music” and being “about music” was covering that fact that it was, indeed, in the end, all about money, and only about money. Being moral has nothing to do with business, especially if you are in the United States, and, it seems, especially if you in the tech world. One of the engineers came by my desk and mentioned that the Meg Whitman ads were paying dollars where other paid nickels, so she was gonna get those ads placed in any case. (She lost that election, regardless.)

It was the following year that the company held its IPO and became a publicly traded entity. Then it got really bad. While Joe Kennedy claimed “an IPO is just another round of funding”, being even more beholden to the investors started to become evident. The advertising and programming choices became even more suspect, listeners began wondering what was happening. And along with the political things, came advertising that was even weirder. We got many complaints about “Speak Up University”, who appear to be a support group for “straight Christians”, but a little more research into the Speak Up organization proves it to be essentially and anti-gay hate group, among other things.

(It’s a fallacy to think that any dominant culture would need support in the face of abused minorities, the same way that there is no such thing as “masculinism” battling the tenets of feminism: feminism strives for equality; being against it is being for the current inequality of all people, regardless of gender. Nonetheless, there is so much misunderstanding of it that people are duped into thinking that they should be against it because somehow it promotes more power to one side (women in this example,) instead of simply promoting equality. One would think that the anti-gay marriage proponents believed that allowing it would make it mandatory—or Worse!)

I brought this up to the management, again. This, surely, was a moral line we should not cross in our blind acceptance of money for political or dogmatic advertising. This slightly stirred things up, partially because my team had several gay members, to say nothing of those who were simply trying to advocate morality and refused to accept that there was any difference between people regardless, and hence advertising that is divisive or hateful in any way should be avoided. We never really got closure on this, as the advertising sales people were the cream of the business crop, in their own little money-driven world, and couldn’t be bothered so much with whom they sold to, so long as they sold time or web space.

I realized at this point that the entire area of “customer service” within Pandora was backwards. The listeners were not the customers, the advertisers were. The listeners got music in exchange for listening to ads. That was the deal. Again, music was irrelevant, we could have been pumping sausage through a pipe into their mouths all day long, in exchange for watching ads. But the public perception of the company was still that it was somehow “pro-music and musicians.”

I tried to accept this all, but still had to speak out when we ran ads for “Minnesotans for Marriage”, another anti-gay hate group opposing gay marriage in Minnesota. And, looking around, our very team was segregated: the gay contingent was off to one end by themselves…This time was the last straw for management, I was brought into a meeting and told to “stop questioning decisions that had been made by the company”, that is, get with the program or get out. They said “you have some tough decisions to make”. The next day I was told to clean out my desk. Many people asked me about whether I wrote this article after I was fired (I didn’t, but it is all true.) Take a look.

Losing my job was bad, of course, that always is, and it makes one a pariah in the tech world to simply care about the morality of what is done. I wrote this a year later:

(To repeat some of that blog entry, when I was told by the new over-manager  “you can’t keep questioning things that the company has already made decisions on”, I replied that of course I have to keep questioning! What if people hadn’t kept questioning during the civil rights protests in the 1960s? He became really angry and reared up and said, you can’t compare these things to racial issues! I said, “uh, yes you can, I’m talking about civil rights, this ad is for an anti-homosexual group…?” When I left that day and went to a yoga class, I spoke with an expert: none other than Angela Davis was a student in the same yoga class that I went to in Oakland. She was fairly adamant that I was on the right track!)

In the past two years, Tim Westergren has proven that all he really cared about all along was the money, he and many of the other upper management and investors have been cashing out millions of dollars in stocks all the while lobbying against royalty rates to pay for the music that supposedly the whole Pandora concept is based on. And as he, and the company, become more and more politically involved, it reflects more and more on the company as a whole.

Now it has come out that Tim and Joe and others even donated to the radical right wing anti-gay congressman Jason Chaffetz. Presumably, they simply did this to throw money at him to sponsor IRFA, the “Internet Radio Fairness Act” (a very Orwellian name!) Of course doing so supports him in his entire agenda. So, they really don’t care? Or is the company based in such a sense of pseudo-morality that these people like Tim are actually supporting Chaffetz’ anti-gay agenda? How could we know?

If it is that, then this company is sick at its core. If it is only about money, then the company is amoral. That same sort of amorality and hypocrisy permeates the rich industrialists of the world, see here for example regarding the Koch family.

In any event, the Pandora bosses have made out like bandits already, so I doubt they care what happens. Maybe the company will wither, and in its withering prevent similar IPO-based “funding”.

We can only hope that they are replaced by music streaming companies that really care about music.


-post by Jonathan Segel

Individual Songwriters Come Out In Droves, Submit Large Number Of Comments To DOJ

Thank you readers.  You all rock!

When a government agency like The Copyright Office or The Department of Justice asks for comments,  they usually generate a few dozen. And the vast majority of these are from lobbyists, trade groups and law firms engaged in policy fights.

So this week the Capitol has been buzzing about the surprising number of comments that INDIVIDUALS submitted to the DOJ on the consent decree that governs songwriters.  There were over 180 comments from individuals submitted!   And we recognize that many of these comments are from fellow songwriters and readers.   We have made our voices heard.

So let’s keep it going.  Tweet the link to your DOJ comment at us and we will retweet it!  @thetrichordist

Here’s my own comment. 



@jannarden is Banned on Newcap Stations Through Patented QuickHitz Infringement Machine

Originally posted on MUSIC • TECHNOLOGY • POLICY:

As you know, Canadian artist Jann Aden spoke out against the vile “QuickHitz” radio format that cuts songs in half to sell more advertising.  Jann singled out the AMP radio station in Calgary, which is one of 100 or so stations owned by the Newcap Radio chain in Canada.  Jann indicated in a slightly obscure tweet last week that she’d been banned from the station by “Steve Jones”.

I find it hard to believe that jocks on a station would actually believe that slicing and dicing songs without artist consent was a good idea.  But radio is a tough business and I don’t blame them for wanting to keep their jobs.  However, this is exactly the kind of market power abuse we expect from the National Association of Broadcasters (who at the moment strives to keep the U.S. government’s boot on the throats of songwriters.  Why?  Because “this…

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