UN Rushes Logic Textbooks to UK Green Party Officials

Evstafiev-bosnia-sarajevo-un-holds-head

 UN prepares to airlift logic textbooks to UK Green Party officials.  Above a A Norwegian UN peacekeeping soldier reacts to statements by UK Green Party officials.  Photo by Русский: Фото: Михаил Евстафьев English: Photo: Mikhail Evstafiev (Mikhail Evstafiev).

 This is a direct quote from Caroline Lucas the sole Green Party member of UK parliament.   I’m sure she’s  a nice person.  But this makes no sense and the Green Party needs to be called out on this.

“At present many creators are in a stranglehold from our copyright laws, which see big corporation control the rights to work for eg 70 years after the creator dies in the case of literary, dramatic, musical or artistic works. Some years ago I worked with artists like Billy Bragg to challenge the way that music corporations take a huge cut of royalties, leaving only leftovers for the artists. We wanted to try and return copyright to the artists it’s supposed to benefit.”

Dear MP Lucas/Green Party:

You know the only reason record labels are required to pay artists and songwriters in the first place?   Copyright. We have an exclusive right in the reproduction and distribution of our work.  Without that right those record labels, big technology companies, radio broadcasters, streaming services, television networks, movie studios and YouTube/Google wouldn’t pay us anything.  Nothing.  Zero.  Zilch.

Shortening copyright to 14 years just means these companies stop paying us after 14 years.  They would continue to use our music.  This would be a windfall for these companies.  Also please, can we drop the fiction that you really meant “life plus 14 years?”  Your party’s own statements and documents clearly show you meant 14 years period. That’s why you haven’t changed the website.  I don’t understand why the press is giving you a free pass on this backpedalling.

Further if you expand the “fair use” defense “outside of academia”, i.e. corporations, you further undermine our ability to get paid.   Just ask any professional photographer how  Google Image’s”fair use” has worked out for them.

If you want to do something sensible with copyright to help artists you should strengthen it for individual authors.  Here are two simple sensible ideas:

1) Let artists “opt out” of streaming services if they like…those who chose to stay in can stay in.   At the very least we’d be spared the endless back and forth between pro-streaming and anti-streaming artists.

2) Have copyrights revert to the original authors after a period of time.  (In the US most songwriters get songs back after 35 years.)

 

 

The UK Green Party Finds its Inner Silicon Valley Billionaire On Copyright

Legendary guitarist, DJ and musical innovator Steve Hillage recently provoked an extended debate on Facebook by posting a document demonstrating the UK Green Party’s new anti creator copyright stance.  Among other things they propose a 14 year copyright (a length last seen in 1710) , legalized p2p piracy and expanded fair use “outside of the academic environment.” The last is actually the most troubling. To be clear they are  saying they want academic  “fair use” defenses to extend to commercial endeavors i.e. corporations.  Cause as you know here in the US corporations are people.

Now if I were simply a GDP obsessed American, I might applaud the fact the UK Green Party is willing to give away the rights of their musicians, songwriters, authors, filmmakers, photographers and playwrights to American mega-corporations like Google. For this adds the work of British authors directly to the US GDP.   Companies can now comfortably profit from the distribution and “fair use” reproduction of these works without fear of paying any civil infringement penalties or pesky royalties (See ad supported piracy for how this works).  But if you look at this proposal through the lens of partisan left/right politics the Green Party proposals are essentially a transfer of wealth from all those clever British musicians, songwriters, filmmakers, authors and playwrights to the far right libertarian billionaires of Silicon Valley.  The “useful idiots” in the UK Green Party are handing your wealth to people who would like nothing better than to destroy the environmental regulations the UK Green Party champions.

Funny and brilliant.  I can’t help but begin chanting like a (British) football supporter

Silicon Valley USA! Silicon Valley USA!

Let me be honest with you.  I don’t have a dog in the fight on this one.  I’m not left or even left of center.  I don’t care if the Green Party lives or dies. I’ve described myself over and over again as a raging moderate.  If there was still an “Eisenhower Republican” wing of the Republican party I’d probably join it.  I didn’t like the Green Party economic policies even before they decided to dismantle copyright.  I’m simply here to point out that their policies are stupid even from a center left perspective.

Some of the commenters on Hillage’s Facebook post suggested that the UK Green Party is an organization that would like to return us to an 18th century agrarian economy.  That’s probably an unfair characterization.  But on copyright the 18th century characterization is too generous.  The UK Green party would like to go back to the 17th century.   The copyright term the UKGP  proposes is shorter than the original copyright term created by the 1710 Statute of Ann  (21 years or two 14 year terms).   Further creating “fair use” defenses for commercial endeavors would decimate what revenue there is left for recording artists, songwriters, photographers etc.  If you were not aware Google already argues that its YouTube’s “users” enjoy fair use protections and this rationale allows them to profit handsomely through data mining and advertising on all those unlicensed “user” uploads. Officially extending fair use to all commercial endeavors (not just the cyberbully YouTube) would open the floodgates.   As long as YouTube has free versions of all our songs on it’s service don’t expect revenues from Spotify or other streaming services to ever rise to sustainable levels.  To quote your outspoken countryman Billy Bragg “if we’re pissed off at Spotify, we should be marching to YouTube Central with flaming pitchforks!”

In their defense the UKGP seems to have been fooled by some pseudo-scientific nonsense in a paper by Dr. Rufus Pollack that claims the optimal length of copyright is 14 years. (Pollack may have also influenced UKGP on the decision to allow fair use “outside of academia”).  Pollack is a founder of the Open Knowledge Foundation which is funded by some of those same Silicon Valley billionaires. Surprise!   The disclosure of Pierre Omidyar’s foundation (eBay) as a funder of Open Knowledge should send shivers up the spine of any good British lefty.  The Hewlett foundation is the other main funder. William Hewlett along with his partner David Packard were the key architects and beneficiaries of the Cold War “military-industrial complex.” The same one that Eisenhower famously warned us against.  And you realize of course what we call Silicon Valley is simply the latest incarnation of that same military-industrial complex, this time based upon spying and data mining.

But let me go back to my “pseudo-scientific” comment of a moment ago. This (non peer reviewed?) “paper” has been going round and round the web like a cold sore in an 80’s hair metal band. It seriously needs to be debunked. I think I’ll devote a few days to Zovirax™-ing this sucker in an academic setting later this summer, but for now let’s briefly examine why I call it  “pseudo-sceintific.”  It’s scientific only in the sense that it uses a series of equations to arrive at a number that is 14 years.   The claim that it represents the optimal length of copyright is the “pseudo” part.   The claim rests on a staggering number of assumptions most of which are bad assumptions.  I’ll address just one for now:  The claim that technology has made it less expensive to produce the “original copy” of a work than it did in the past.

How is that a good assumption?  It’s certainly sexy.  It’s what we want to believe.  We love our technology and our devices. We’d like to believe this is true.  But is it true?

Ask yourself this: Exactly how does technology make it any less expensive to write a novel?   Writing a novel is purely a work of intellectual labor.  I suppose it’s easier to spell check…,  the backspace key is more convenient than White-out™ and a brush…  But I’m not seeing any evidence it’s less expensive.   In fact I would argue that since the modern English author lives in a much richer society than Dickens, that the relative cost of his labor is much much higher.   I would argue it is more expensive to make that “first copy” now than it did when Dickens wrote David Copperfield (in Broadstairs Kent not far from my mother’s childhood home).  If this inconvenient fact is popped into Dr Pollack’s equations what happens to his  optimal 14 year copyright?  His whole premise collapses.   And this is just one of the many questionable assumptions that Pollack makes.

To be fair (?!) I should point out  Pollack arrives at this questionable assumption concerning the falling costs of an “original copy” by constructing a unique definition of the costs of an “original copy.”  He includes the costs of licensed reproduction of the work as part of the costs of the “original copy.”  Economists would term this as summing together fixed costs and marginal costs, thus standing the whole concept of “original copy” on it’s head. And it is ONLY through this sleight of hand that he gets his mathematics to (sort of) work.

In short one could reasonably argue the whole paper is an elaborate word puzzle or parlor trick.

But Pollack isn’t the point.  The misguided and unfair treatment of artists by the UK Green Party is the point.

What I find most amusing is that the Green Party for all practical purposes wants to abolish an individual’s copyright in order to  “expand the area of cultural activity, that is ways that culture can be consumed, produced, and shared, reduce the role of the market and encourage smaller and more local cultural enterprise.”

First of all: compared to 20 years ago we are drowning in movies, books, films, songs and cat videos.  While it may not necessarily be less expensive to produce that “first copy” of a novel, Pollack is correct in that there are virtually no barriers to the global distribution of that novel now. As a result – even under current copyright law- there is no “production of cultural goods” emergency!  This is simply a Green Party solution without a problem.

If the Green Party wants to fix a real problem they should examine why the middle class of the creative industries is disappearing.  Just look at what has happened to professional musicians in the US.    Normally the Green Party would reflexively side with these generally unionized professional cultural workers. Why not now?  What gives?  Why does their cultural fix include a fair use exemption for corporations like Google/YouTube? It seems odd.

Clearly the Green Party knows that their policies will eliminate a broad  professional class of artists.  Otherwise they wouldn’t propose the following:

a Citizen’s Income (see EC730), which will allow many more people to participate in cultural creation;”

This is puzzling.  Take away revenue from creators and then give it back through a government stipend? The only way this makes sense is they just don’t like kind of cultural goods that are currently being produced and want to gain control over the process.  Is that what this is really about? Defunding the pop stars and vast middle class of musicians  in hopes that some anti-capitalist pro-environmental indie rock and electronic dance music fills the void? And aren’t British youth  already producing anti-capitalist music?  Isn’t that a rite of passage of every British university student? The anti-capitalist phase?  I don’t know about you  but these new policies sound more like some sort of censorship scheme to me.  Think about it.   Who decides who gets this “Citizen’s Income” to work on pop music?  Your local Green Party council?  And if that’s the case would Compton California’s Green Party Council have funded “Straight out of Compton?  Would the Prestwich Green Party Council have funded The Fall? Doubtful.

Further if you still have a global mixed capitalist system wouldn’t giant multinational companies like Google and Amazon out-market the UK Green Party’s dole produced culture with their monopoly capitalist funded culture?  Surely the jackbooted dance floor stomp “All Hail Bezos and Schmidt” will have a much larger promotion budget than the folksy strains of  “I love composting” by the Aberystwyth Green Council’s Twee Three.

But let’s just say there is an emergency.  For the sake of argument let us accept the questionable Green Party premise that there is a shit ton more creativity to be unleashed and copyright is somehow standing in the way.

How the hell is my individual right to be compensated for the use of my work standing in the way of this?  How am I preventing some young musicians in Hull from starting their own band or indie label based upon the East Riding sound?   Is the problem that they want to cover one of my songs in a retro KLF style and I have a copyright on that composition?  They already have the right to cover that composition.  I can’t stop them. Why?  Copyright law in the US gives them a compulsory license (you have a similar process in the UK).   They just have to pay to me the very small songwriter royalty.  Is the problem they don’t want to pay the royalty?  Then they should make up their own songs.  They can even base their songs on the ideas from my original composition, for copyright only protects my unique expression not the ideas themselves.

And ladies and gentlemen, this is a perfect example of how copyright incentivizes the creation of new works, not prevents their creation as the Green Party seems to think.

Maybe the UK Green Party should stick to saving whales.

Attention Bands and Bloggers: Link to Your Local Indie Retailers and Be Good to Them When It’s NOT Record Store Day

thetrichordist:

#linklocalbuylocal!

Originally posted on MUSIC • TECHNOLOGY • POLICY:

There’s an inclination on the part of bands and bloggers to use links to Amazon or Apple for fans to buy your records.  Here’s a thought:  Try linking to someone who gives a shit whether you suck air and who doesn’t spend tens of millions of dollars trying to fuck you in Washington?  Think that might be a better idea long term?  (And as we’re seeing play out in Canada, not just Washington, but Ottawa, London, Brussels and indeed around the world.)

I link it to Waterloo Records, my local indie record store which has a good online ordering operation.  I bet you have an indie record store, too.  Why don’t you link to them on your website?  When was the last time you did an in-store at Amazon?

And if you don’t have an indie store in your area, feel free to use Waterloo.  Texas wants you anyway.  But…

View original 79 more words

World Watch:  Canadian Government Closes Big Tech’s Back Door Loophole

Originally posted on MUSIC • TECHNOLOGY • POLICY:

Canadian Prime Minister Stephen Harper’s government has announced that Canada will expand the current 50 year copyright term for sound recordings in Canada to 70 years. This brings Canada into the 21st Century and in line with its global trading partners. Expect handwringing from Big Tech and the magisterium of the professoriate, some of which has already begun, complete with at least some manufactured evidence worthy of Pandora.

Harper Government Acts to Protect Canadians from the Copyright Term Shell Game

The way you play the copyright term game internationally is to sell knockoff CDs or vinyl versions of classic recordings at super-budget prices in the country with the shortest term as those records flow into the public domain. Fans are confused by these records being sold side by side with value added versions (such as digitally remastered, 5.1 mixes, etc.). There’s also a good chance that the same game…

View original 2,867 more words

Leaked Sony Emails Suggest Digital Music Executives Confuse Per Capita Revenue with ARPU

Evstafiev-bosnia-sarajevo-un-holds-head

 UN prepares to airlift badly needed calculators and math textbooks to Sony digital executives.  Above a A Norwegian UN peacekeeping soldier reacts to leaked details of Sony digital executives confusing per capita revenue  with ARPU (annual revenue per user.)  Photo by Русский: Фото: Михаил Евстафьев English: Photo: Mikhail Evstafiev (Mikhail Evstafiev).

Are we really doing this again?   Seriously, is there a single digital music executive at a record label that can do basic math?  Reliable reports on the leaked Sony emails seem to suggest otherwise.

Did every single one of these folks fail the 6th grade word problems?

Let me explain this one more time. ARPU≠Per Capita Revenue

For instance in the year 2000 US recorded music purchases per capita were $71.  Now remember that per capita figure includes a lot of people who probably don’t buy music.  For instance infants, little old ladies and even (sorry but  it helps illustrate the point) the hearing impaired. Per capita means everyone in the country. It means…well per capita!!  

So when sony digital music executives start talking about ARPU (Annual Revenue Per User) on certain services  they are talking about a much much smaller subset of the population.  You  can not honestly talk about $120 Spotify APRU and  $71 dollar per capita annual revenue in the same sentence.  Yet it looks like they do.  I don’t know if this is sheer stupidity or if it’s part of some sort of digital snake oil scam.

To illustrate, look what would happen if you did it the other way and equated streaming services ARPU with per capita recorded revenue consumption.    If all streaming services combined somehow miraculously manage to get to 40 million paying subscribers (about level of adoption of streaming video) on the high side you get to $15 per capita.   (40 million x $120 a year/ 320 million us population).

You’re all fired.

World Watch: The Safe Harbor Loophole and the Internet of Other People’s Things

Originally posted on MUSIC • TECHNOLOGY • POLICY:

“Americans are freedom loving people and nothing says ‘freedom’ like getting away with it.”

From Long, Long Time by Guy Forsyth.

How many times have you heard the expression, “DMCA license”?  The expression is completely baseless, yet it has come to be used to describe an online company that uses music, movies, television, books and images that are intentionally used without rights and commercially until the company receives a take down notice.  The examples given of companies using the “DMCA license”?  Most frequently YouTube, Grooveshark and whatever Michael Robertson is doing at the moment.

If you tell these people that there’s no such thing as a “DMCA license” and that the very expression is internally contradictory, the comeback usually is “Why does YouTube get away with it?”  And of course the answer is the same answer to why does YouTube claim to be struggling to break even–Google is willing to…

View original 1,133 more words

Not So Fast Pandora: Second Circuit Court of Appeals Omission Could Mean Pandora Interactive

In the last 3 years Pandora has done just about everything it could to lower payments to songwriters and performers.  First there was the  Orwellian named “Internet Radio Fairness Act.”  They followed that up with multiple suits against songwriters’ organizations and now they are playing fast and loose with the Copyright Royalty Board apparently cutting direct deals to simply “create evidence.”

But sometimes you got to wonder if Pandora is a little too smart for its own good.  Because Pandora considers itself to be non-interactive it can avail itself of the compulsory licenses for sound recordings and go before the Copyright Royalty Board to seek lower rates. That is what is happening right now.  But is Pandora really a “non-interactive” service?   And shouldn’t that be the first question answered before proceeding to rates?   Has this question ever really been carefully examined? I don’t really know how the Copyright Royalty Board proceedings work but shouldn’t they be able to asks this question?

Pandora has never seemed to fit the definition of a non-interactive service to me.   But I’m not a legal expert.  Generally the answer from folks who are legal experts goes something like this:

“Because the Second Circuit Court of Appeals ruled that LAUNCHcast was non-interactive Pandora has proceeded as if they were non-interactive and the music business let them get away with it.”

Okay.  The weird thing is that very few people have really read the LAUNCHcast decision.  Most experts don’t really know what the decision says and are loathe to go on record speculating whether it applies to Pandora    So I spent the last week reading up on the ruling myself.  Again I’m not a legal expert but I don’t think that Pandora can use the LAUNCHcast decision because the court does not address a key clause in the DMCA conference report that gives a clear example of an interactive service:

The recipient of the transmission need not select the particular recordings in the pro- gram for it to be considered personalized, for example, the recipient might identify certain artists that become the basis of the personal program.

The court quotes everything else in the paragraph. But not this.  In fact this omission is really quite stunning. They seem to steer around this particular sentence like it’s a pothole and they are driving a low rider Cadillac.    Look at my highlighted screenshots if you don’t believe me.  The significance is that Pandora lets you “build a program based on certain artists” and this example would seem to qualify Pandora as interactive. IMHO since the LAUNCHcast ruling seems to specifically avoid this clause it can’t be used by Pandora to justify non-interactivity.

Bye Bye compulsory license.

 

Screen Shot 2015-04-17 at 7.00.01 PM

 

The House Conference Report.

Screen Shot 2015-04-17 at 6.55.30 PM

 The relevant sections of the Launch Media decision. 

IMG_0426

 

Personalized Program: Don Henley Radio Station immediately plays a Don Henley track. 

 

With Skipping Pandora Seems to Let You Play any Artist On Demand, Why is It Before the CRB as a Non-Interactive Service?

Yesterday I built Pandora “stations” based on each of the following artists:

Prince, Don Henley, Eagles, Joe Walsh, Pharrell, John Lennon, Steely Dan and Fleetwood Mac.   With one exception  I was immediately played a song by that artist.   The exceptional case  was Fleetwood Mac, but after 2 seconds I hit the skip button and then got a Fleetwood Mac song.  I repeated this experiment today with a different set of artists.   How is this not an interactive service?

Here is the relevant paragraph in the DMCA.   It specifically identifies as interactive  services that offer playlists based on an artist (highlighted bold):

Subsection 114(j)(7)—‘‘interactive service.’’ The definition of ‘‘interactive service’’ is amended in several respects. First, personal- ized tranmissions—those that are specially created for a particular individual—are to be considered interactive. The recipient of the transmission need not select the particular recordings in the pro- gram for it to be considered personalized, for example, the recipient might identify certain artists that become the basis of the personal program. The conferees intend that the phrase ‘‘program specially created for the recipient’’ be interpreted reasonably in light of the remainder of the definition of ‘‘interactive service.’’ For example, a service would be interactive if it allowed a small number of individ- uals to request that sound recordings be performed in a program specially created for that group and not available to any individ- uals outside of that group. In contrast, a service would not be inter- active if it merely transmitted to a large number of recipients of

++++++++++++++++++++++++++++++++++

Created station for Prince.

Pandora immediately played:

IMG_0425

 

Created station for Don Henley

Pandora immediately played:

 

 

IMG_0426

 

Created station for Eagles.

Pandora immediately played:

 

IMG_0427

 

Created station for Joe Walsh

Pandora immediately played:

 

IMG_0428

 

Created station for Pharrell

Pandora immediately played:

 

IMG_0429

 

Created station for Steely Dan

Pandora immediately played:

IMG_0431

 

Created station for Fleetwood Mac

Pandora started to play  Creedence Clearwater Revival

IMG_0432

 

Hit “skip” after two seconds and Pandora played:

 

 

IMG_0433

 

 

Is Pandora Really a Non-Interactive Service? Does It Really Qualify for Compulsory Licenses and Lower Rates?

What Is interactive radio?  And why isn’t Pandora considered interactive radio?

Although Pandora has always regarded themselves as a “non-interactive” Internet radio service  from what I can tell this assumption has never really been properly tested. The question is important because if Pandora is  “interactive” -not non-interactive -it could no longer rely on compulsory licenses.  Instead it would have to negotiate with rights holders to use sound recordings.  Further it would no longer be able to engage in its patented direct licensing shenanigans and “create evidence” for the copyright royalty board.  All of this would be a net plus for rights holders as Pandora has been relentless in trying to lower royalties paid to songwriters and performers.  And besides a little good faith negotiation never hurt anyone.

I will say that I have always felt that Pandora oversteps the bounds of what should be considered a non-interactive webcasting service.  Mostly because it’s… well it’s interactive!  It allows me to build my very own personal radio station based on a particular artist, even a particular song.  I can skip tracks, I can give a track a thumbs up, or give a track a thumbs down and I won’t ever hear that track again!  It’s very interactive.

But more importantly, if I build my personal station using just the artist (and not specific song) the first song played is almost always a song by the artist I requested.  If I specify a particular song and artist, I always get a track by that artist within the first five songs.  If I don’t want to wait for the first few songs to play,  I can “skip” the first four tracks to get to a song by the specified artist.  So for all practical purposes I can almost immediately make the service play a track by the artist I want to hear.

This intuitively seems to make Pandora an interactive internet radio service.

What does the law say?

I realize  using my own intuition for what is interactive and non-interactive is not law. So what does the law say?   I dug out the relevant paragraph that currently applies (H.R. Rep. No. 105-796 at 88):

Subsection 114(j)(7)—‘‘interactive service.’’ The definition of ‘‘interactive service’’ is amended in several respects. First, personal- ized tranmissions—those that are specially created for a particular individual—are to be considered interactive. The recipient of the transmission need not select the particular recordings in the program for it to be considered personalized, for example, the recipient might identify certain artists that become the basis of the personal program. 

This seems very clear.   Indisputable even.  Further the fact the cited paragraph is a clarification of the definition of interactive service it would seem to carry extra weight.  The previous definition had been criticized for being too vague, so this paragraph is intended to be more precise, more literal, and less open to interpretation than the previous language. Congress really meant it when they modified the  description.

From this we can objectively conclude that congress  clearly intended to include this specific kind of “personalization” as interactive. To argue otherwise is absurd. Otherwise why give it as an example?

Again let’s look at that last line:

“the  recipient might identify certain artists that become the basis of the personal program.”

If I can start my own personal radio station based on an artist and it immediately plays a song by the artist it is clearly giving me the artist “on demand.”  Clearly Pandora is interactive.  I think most reasonable people would come to the same conclusion.  But here is the problem.   Pandora (and other “non-interactive” services) take the position that they are no different than the now-defunct LAUNCHcast  And because  the Second Circuit Court of Appeals ruled that LAUNCHcast was non-interactive it follows that Pandora is also non-interactive.

Does this truly follow?  I don’t think it does.

The Second Circuit and Launch Media. 

Once upon a time there was a internet music service called LAUNCHcast.  And if you or I examined this service we might reasonably conclude that the service was “interactive” and hence could not avail itself of the compulsory licenses.   This is in fact what BMG/Arista argued in 2001 and subsequently took LAUNCHcast to court.  But the Second Circuit disagreed and allowed LAUNCHcast to be classified as non-interactive.   This decision was upheld by the Second Circuit Court of Appeals in 2009.

Many broadcast attorneys were surprised by the original decision and the result of the appeal. Even those that generally welcomed the expanded flexibility it granted internet broadcasters seemed to think it was maybe a little too good to be true.   As one IP litigator noted at the time:

In my opinion, the LAUNCHcast decision is quite persuasive. The court’s research into the legislative history is exhaustive, and its understanding of the relevant technology is impressive. But, if you read just the text of the definition of interactive service, it’s a pretty counter-intuitive result. – See more at: http://ipbreakdown.com/blog/pandora-almost-wasnt-the-definition-of-interactive-part-11-of-our-online-music-services-series/#sthash.pAxwQ8Gn.dpuf

There was even a sort of “fix” proposed, gradations of interactivity to create a sort of  “pseudo interactive streaming” service, since in the view of many the court should have kept LAUNCHcast in the interactive service but simply applied different rates.

Now I’m not trying to re-litigate the Launch media decision,  the real question is whether Pandora is interactive not LAUNCHcast.   However let me at least outline my  general criticism of the LAUNCHcast decision.  For if my reasoning is legally sound (due diligence if you are not aware I have no legal training) I believe it is very significant.

While the decision on LAUNCHcast is admirable in its craftsmanship (some would say admirable in a Rube Goldberg sort of way) it ultimately rests on some assumptions that I don’t think one can necessarily assume.  Further if I diagram the argument (I won’t do that here as it is a beast), it seems to rely on some false inductive reasoning at key points.  ( I will admit it’s possible that I don’t really understand the argument).   But these criticisms are ultimately unimportant, for IMHO there is a much bigger flaw.

The real problem with the decision requires one to  “zoom out” and look at the decision as a forest and not trees. From that “zoomed out” perspective you can see an enormous and troubling contradiction.

Specifically the Second Circuit’s interpretation of the law eliminates the need for an entire class of interactive services set up by the very same law.   How is the Second Circuit’s interpretation of the law possibly consistent with what congress intended?  Clearly congress didn’t intend to set up a class of interactive services that were unnecessary because they were actually non-interactive services.  But that is the consequence of the decision.

Two Classes of Interactive Services

 The DMCA not only distinguishes between non-interactive and interactive services, it further subdivides the interactive services in to two categories:

An “interactive service” is one that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient.  (17 U.S.C. § 114(j)(7))

or as described by Mary Ann Lane in the Alabama Law Review:

The DMCA provides two models of interactive services: (1) a program that is specially created for the recipient and (2) a program that allows an individual to request a particular sound recording.

As many commentators have observed the court explicitly accepted this distinction and only attempted to clarify whether LAUNCHcast was interactive under the first model.  Again quoting Lane in the Alabama Law Review:

The Second Circuit’s opinion began with a focus on the type of interactive service in which a program is “specially created” for the recipient. Because a LAUNCHcast user cannot request a particular song on demand, the court did not consider the other model of an interactive service—a program that allows a user to request a particular sound recording.

While the court focused on what was meant by “specially created” the court does not seem to address the fact that this decision effectively moves all services that congress intended to classify as interactive under model (1) to non-interactive.    It virtually depopulates the entire category.   This clearly is not what congress intended when it created (and then further clarified) this category of interactive services.

Are there any services in the US that are classified as interactive under model (1)? This is a serious question. I really don’t know.  Are there any services that are not on-demand that negotiate for sound recording licenses?  I’ve asked around but no one is quite sure.   I’m sure there must be a few but I can’t seem to find any.   iTunes radio and Spotify radio all appear to be classified as non-interactive.   Certainly if there are any services they must represent such an insignificant portion of the market that we can reasonably call this  category empty.    And this fact appears to be the direct consequence of this decision.

Reductio ad Absurdum

So now let’s go back to my earlier questions.   Pandora considers itself a non-interactive service presumably based on the LAUNCHcast decision.  The idea is LAUNCHcast was ruled non-interactive so Pandora is similar and therefore it follows non-interactive.  So does it truly follow? Is that truly the correct logical conclusion to make?   And if indeed it does follow that Pandora is non-interactive what does that say about the Second Circuit’s decision?

I say that no matter which logical fork you take, eventually you undermine the argument that Pandora is a non-interactive service.

1.  Assume the LAUNCHcast decision also classifies Pandora as non-interactive. But clearly Pandora allows  “the recipient to identify certain artists that become the basis of the personal program.” This is clearly interactive as this is one of the examples listed in the DMCA.  Therefore  a) the LAUNCHcast decision is  wrong or b) the decision is improperly applied to Pandora.

Either way Pandora does not get the benefit of the LAUNCHcast decision.

2. Assume Pandora does not have the benefit of the LAUNCHcast decision.  Then again, on its own merits and as noted above it passes the test for interactive and thus fails the test for non-interactive.

Either way Pandora is interactive.

Why are they even before the CRB as a Non-Interactive Service?   To quote Walter in The Big Lebowski  “Smokey, this isn’t ‘Nam, there are rules.”