New Boy Band Poll: Who Should be the Fourth Horseman of the Spotocalypse?

Time for some artists’ rights comedy gold.

We can’t help but notice that when an artist publicly criticizes Spotify there are three bloggers that seem to quickly post rebuttals as if they are members of a synchronized swimming-er blogging team.  To paraphrase Spin Magazine on these guys: “#TeamSpotify.”

Most recently we see the Three Horseman of the Spotocalypse going after David Byrne for his editorial in The Guardian.

Bob Lefsetz the 60-year-old self-described “industry expert” angrily calls the 61-year-old David Byrne an old fart.

Meanwhile Jay Frank calls David Byrne “bad at Math.”  Now while Jay is always careful to be right, if you look at the big picture it turns out he’s arguing over things like whether it takes 150 million Spotify spins or 75 million Spotify spins a year to reach minimum wage (and is that federal or state minimum wage, and which state Jay? ) . Does that really matter?  Byrne’s points still stand. Either way it’s a fuckload and it’s not sustainable. Yes Jay, technically you’re right but It’s like a Larry David episode.  You’re making my brain hurt and I AM A MATHEMATICIAN.

Finally Dave Allen former bassist of the “Marxist”  Gang Of Four now turned Ad Exec spends 100,578,238 words incoherently criticizing David Byrne, Thom Yorke and myself.  This in advance of a meeting with Spotify executives in LA.  I draw no conclusions.

But here’s the real problem with these guys: I can’t take them seriously.

And it’s not because I don’t like what they write.  It’s because there are just three of them.

If 6 is the number of The Beast.  3 is the number of the comedian.

“Dave Allen, Bob Lefsetz, and Daniel Ek walk into a bar”

If you want to be seen as a powerful, elite or even sinister force three is not a good number.  Think about it.  “Three Stooges”, “Three Blind Mice”, “The Three Amigos”, “The Jonas Brothers” etc etc.

Four is much better. Four is a masculine world-changing number.

“The Fab Four”   “The Fantastic Four” and of course “The Four Horsemen of the Apocalypse.”

These guys will not be taken seriously until they add another horseman.

The pro-spotify-anti-artist-blogging business is no different from the boy band business.  You need some variety among your bloggers for broadest appeal.  And the more bloggers the better.  They should really take a cue from some of the great boy bands of the past.   As Bob Lefsetz might say “Work hard, be excellent,  and add another member”  “The Four Horsemen of the Spotocalypse” is so much more serious sounding.

And they are almost there.  They’ve got three great ingredients already!

Jay Frank: The nerdy but fun one.

Dave Allen: The angry one,

Bob Lefsetz: The really angry one,

Who should they add?  Do they go cuddly?  Sinister? Cute? Hispanic?

They definitely don’t have cute.   And they probably should go cute but there are no cute anti-artist-rights-pro-spotify bloggers.

So dear reader please help us!  Please help The Three Horseman of the Spotocalypse become Four.   Vote for a new member!

Third Nyan Cat Award For Web Based Idiocy: Cathy Caverly of Creative Commons.

Nyan Cat awards are given for outstanding achievement in disinformation, web myths and general web based idiocy.

I just read with some amusement this article in the UK Guardian whereby author Phillip Pullman rightly calls piracy “Moral Squalor”. But that’s not the part that’s funny. It’s the quote that they use for “balance” from Creative Commons Chief Cathy Caverly.

“By default, copyright closes the door on countless ways that people can share, build upon, and remix each other’s work, possibilities that were unimaginable when those laws were established.”


Permission is the foundation of civilization or have you forgotten that Ms Caverly?

But it shouldn’t surprise anyone that the Chief of Creative Commons would utter such idiocy. For they claim they offer a license “that lets creators take copyright into their own hands”. WTF? It actually does the opposite. Isn’t this a false statement? False advertising? Fraud? Reading that statement I can’t imagine there are NOT artists out there that unwittingly put their now valuable work into Creative Commons thinking they were gaining more control over their work when in actuality they were doing the opposite. I’m not a lawyer but isn’t there a problem misleading people in this manner?

Plain old normal copyright IS creators right to their works in their own hands.

Creative Commons licenses are a permanent surrendering of some or all of your copyrights as an artist. To use the same analogy these CC licenses take creators’ works from their hands.

Now some people see Creative Commons as a elaborate put up for a particular large Internet corporation that would like nothing better than to monetize every book, film, photograph and song without ever having to ask permission of the author. They often point to Sergey Brin’s (Google) financial support of the organization and the fact that his mother-in-law is the vice chair. Or they point out that their board is completely dominated by people with ties to technology companies and opponents of Copyright. I don’t agree with this. The pseudo-intellectual Creative Commons movement was afoot long before Google existed. Still one can certainly argue that Creative Commons are “useful idiots” and I won’t object.

But here is the question that no one is asking:

“Why are Creative Commons licenses even necessary?”.

For you can do everything you do with Creative Commons that you can do with old-fashioned-non-googly copyright! For instance I allow the non-commercial sharing of recordings of my bands live shows on the non-profit Internet Music Archive. There are thousands of our recordings on the internet music archive. All I had to do was state on our website that we allow this. Voila. Thousands of recordings appeared.

Neither do we object to fans posting ukele cover versions of “Take the Skinheads Bowling” on their facebook pages. And may I remind you that the Grateful Dead enacted their famous taping policy without a Creative Commons license?

Photographers who wish to freely share their photos in any manner commercial or non commercial may state so on their websites without using a Creative Commons license. Plus they have the added advantage of being able to change their minds later. Something that is not possible with a Creative Commons License.

Why is it left to me rather than a real journalist to point out that there is no point to Creative Commons licenses? Where are the grown-ups?

Well perhaps I’m too hasty. There may be ONE point to these Creative Common licenses:

They serve to confuse the public as to the true nature of copyright. And that looks suspiciously like propaganda to me. “Useful idiots” indeed!

Therefore we hereby present our 3rd Nyan Cat Award to Cathy Caverly of Creative Commons. Enjoy.

“Artists Should Expect Nothing” from Spotify says George Howard

Why George Howard should stop chasing what’s best for musicians and focus on academics.

George Howard just wrote an article for Forbes, “Why Artists Should Stop Chasing Spotify’s Pennies And Focus On Top Fans“. It’s amazing how decade old talking points can keep being recycled. It’s always interesting to see an academic (and/or business consultant) telling artists what is best for them. But it’s kinda disturbing when they let loose with gems like this…

Artists must therefore recalibrate not only their expectations with respect to payments (they should expect nothing), but also their approach generally.

There you have it, artists should expect nothing. Not that George Howard doesn’t make valid points earlier about the meaninglessness of Spotify royalties to musicians. Although the irony of how bad he misses the point is astounding.

Certainly, the payments to artists from streaming services are immaterial to the artists. This does not mean that these services aren’t paying out some, prima facie, big numbers to certain artists. It’s just that even if, for instance, Pandora pays out a million dollars to Jay Z, this amount, when compared to the money Jay Z earns from other ventures, is immaterial. It works the same way for a new artist who gets a payment of $0.25 from Spotify; it’s immaterial when compared to what they got paid for playing a club gig or selling a t-shirt. Same deal for mid-level and heritage artists.

And this is where the tired, decade old, tech lobby talking points come in (Bueller, Bueller…). Focus on building a fanbase and the money will follow from other revenue sources like t-shirts and touring. OH MY GOD… did this guy actually, really say this in Forbes? That horse from 1999/2000 could not be any more dead than the original Napster that spawned such out of touch suggestions.

It’s thirteen years later. There is no magical unicorn business model that pays artists while their work is being either devalued for fractions of a penny, or they are not being compensated at all.

Here’s a brief recap of what these so called “business experts” and “internet technology consultants” see as the “new” models for artists… Ready, set, go!

* Touring… existed BEFORE the internet…
* Merchandise (T-Shirts)… existed BEFORE the internet
* Film/Sync Licensing… existed BEFORE the internet
* Sponsorships/Endorsements… existed BEFORE the internet

These are not NEW models or revenue streams.

So “touring and t-shirts” (CwF+RtB babee!) is not a business model for artists, but rather an open admission that the internet has completely and undoubtedly failed to empower artists. In light of this fact George (and others) instead suggested that musicians and songwriters revert to pre-internet ANCILLARY income streams to now be their PRIMARY revenue streams. Wow, what genius is this?

As seen as a potential catalyst to herd more casual and active fans — fans who may become Passionate Fans — into this funnel, these services take on a real value. This value far exceeds any direct financial payment (whether that number goes up or down 10%). To this end, the artists must learn to use these services and benefit them in the same way the artists are being used by and benefiting these services.

In fact, the “new music business” looks pretty much exactly like the “old music business” with revenue from recorded music sales removed.

Repeat after us, “Exploitation is NOT innovation“.

[UPDATE] : When asking investors for a new round of funding, while getting bad press from upset musicians you probably are looking for some spin control. We don’t think George Howard is that solution. More than anything else, Spotify like Pandora might only be of interest to investors if musicians are completely screwed on royalties. Maybe the ask for cash, and the call for musicians to accept nothing are not related, but that would be suspicious timing at best.

Spotify Is Now Asking Investors for More Cash, Swedish Paper Reports…

Ready The Clown Car : Kim Dotcom Contemplates Suing Google, Twitter and Facebook

Serious folks, we can’t make this up.

“Twitter introduces Two-Step-Authentication. Using my invention. But they won’t even verify my Twitter account?!,” Dotcom tweeted.

“Google, Facebook, Twitter, Citibank, etc. offer Two-Step-Authentication. Massive IP (intellectual property) infringement by U.S. companies. My innovation. My patent,” he added.

But it get’s better…

“I never sued them. I believe in sharing knowledge & ideas for the good of society. But I might sue them now cause of what the US did to me,” he said.

However, he said a more productive approach would be if the tech giants helped cover his legal bills to fight prosecution under the Digital Millennium Copyright Act (DCMA), which he estimated would exceed US$50 million.

“Google, Facebook, Twitter, I ask you for help. We are all in the same DMCA boat. Use my patent for free. But please help fund my defence,” he tweeted.

So essentially he’s threatening to sue the very same people he’s asking for money. Interesting strategy. We’re not sure that Google, Facebook and Twitter feel they are in the same boat. It’s difficult to believe these companies would want to be anywhere near the imploding public spectacle known as Kim Dotcom.


you may also enjoy…

Kim Dotcom claims he invented two-factor authentication—but he wasn’t first | Ars Technica

Dotcom’s European patent was revoked in 2011 largely because AT&T had a patent on the same technology with a priority date from 1995. (Thanks to Emily Weal of patent law firm Keltie for pointing out Dotcom’s European patent travails in the IP Copy blog.)

While Dotcom’s patent in the US is still in force, AT&T also has a US patent pre-dating hisThe Guardian pointed out that Ericsson and Nokia also have patent filings for two-factor systems predating Dotcom’s.

Second Nyan Cat Award Goes To The Fake Thomas Jefferson And His Copyleft Creators

This Nyan Cat awards are given for outstanding achievement in disinformation, web myths and general web based idiocy.  

One of the biggest and most important urban myths that the Copyleft loves to propagate is the one about Thomas Jefferson and copyright. Several times now I’ve had the following Jefferson quote thrown at me when I refer to the founding fathers and the constitutional foundation of copyright.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. – Thomas Jefferson. Letter to Isaac McPherson 1813. 

Wow! It really sounds like Jefferson was the founding member of the Copyleft! This is very similar to the arguments made against copyright by people like Electronic Frontier Foundation’s John Perry Barlow.

The first problem with this? JEFFERSON WAS NOT TALKING ABOUT COPYRIGHT. He was talking about patents and inventions. A very specific one at that. All one has to do to verify this is to  read the two paragraph immediately preceding this quote.  Patents and Copyright are two very different things. Patents protect inventions. Copyright protects expression.  I can not express how important it is that there is a distinction between these two very different kinds of intellectual property.

The second problem with this? When you put this quote back in context you see that Jefferson is not even arguing against patents.  Among other things he seems to be quibbling about whether patents should extend beyond the lifetime of the inventor. If Jefferson was opposed to the entire idea of Intellectual Property (as many in the tech blogosphere argue) why would he serve on the US patent board? And why would he approve patents?

Third. Jefferson had little to say about copyright when compared to others. He didn’t have much to do with the copyright laws. Asking Jefferson instead of Madison about copyright is like asking Ringo instead of John Lennon about Strawberry Fields Forever. Wait, I take that back. It’s like asking Charlie Watts instead of John Lennon about Strawberry Fields Forever. Jefferson was The Patent Guy, and he was in France when much of the discussion occurred.

And why is that important? Well when courts interpret the laws and constitution they often read historical texts that shed light on the author’s thoughts at the time. When it comes to copyright it’s unlikely Jefferson would be consulted. More likely Madison and Pinckney would be consulted. Indeed Madison and Pinckney’s views on Copyright are very similar to the laws we have today and naturally how they are interpreted.

Granted one may use Jefferson’s letters and thoughts in an honest discussion about the length of exclusive rights for patents. You could even by analogy have an honest discussion about the length of copyright terms. But to use a single letter by Jefferson to dispute the legal and ethical basis of constitutional notions of copyright is not just revisionist, it’s dishonest. Do I need to remind our readers the role revisionist histories have played in human tragedies?

That is why we at the Trichordist are proud to give our 2nd Nyan Cat award to The Fake Thomas Jefferson and his Creators! 

There are many people that deserve to be credited as contributors to this dangerous revisionist history. But there are too many to thank by name. However we would be remiss in our duties if we didn’t single out three people that deserve special recognition:

John Perry Barlow. This may be the Ur-blog post when it comes to this fantasy.

The Economy of Ideas

Lawrence Lessig.  Here he clearly uses Jefferson’s out of context quote on the length of patents to begin a discussion about all Intellectual Property rights.  Lessig being the Guru of the copyleft, this has had the effect of inserting Jefferson into the middle of the constitutional debate about copyright when he doesn’t belong there.

Jefferson’s Nature

David Post has written a sort of legal alternate reality historical fiction In Search of Jefferson’s Moose: Notes on the State of Cyberspace. A sort of what WWJD (What would Jefferson do) about cyberspace.  Those on the copyleft often refer me back to his writings when the intention of our founding fathers regarding copyright and intellectual property comes into question. Just as The Singularity Myth partially emerged from science fiction, The Fake Thomas Jefferson has been  birthed by writings like this.

For a fascinating and in depth exploration of The Fake Thomas Jefferson I refer you to these two papers by constitutional scholar Terry Hart.

Who Cares What Jefferson Thought about Copyright

Myths from the Birth of US Copyright

The fact these two articles are often viewed as controversial in cyberspace shows us just how far from historical reality the discussion has drifted.

It should also be noted that David Post  responded to Terry Hart’s “Who cares what Jefferson thought about copyright”:

Why Should We Care What Jefferson Thought About Copyright

And Terry Hart then responded:

Response to David Post, re: Jefferson

Finally if you want the real deal on the founding fathers and intellectual property try The Federalist Papers.  Quote from Madison himself:

1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

Declaration Of Free Milk and Cookies

We stand for a Free and Open Milk and Cookies for everyone without artificial limitations imposed by the creators of Milk and Cookies!

We support transparent and participatory processes for making Free Milk and Cookies policy and the establishment of five basic principles:

* Expression: Don’t censor Free Milk and Cookies for Everyone!

* Access: Promote universal access to fast and affordable networks of Free Milk and Cookies!

* Openness: Keep open networks where everyone is free to have Free Milk and Cookies!

* Innovation: Protect the freedom to have Free Milk and Cookies without permission. Don’t block Free Milk and Cookies, and don’t punish Milk and Cookies for their users’ actions!

* Privacy: Protect Free Milk and Cookies and defend everyone’s privacy to have Free Milk and Cookies!

If you don’t defend your right to Free Milk and Cookies, who will!

Satire and commentary adapted from the absurdity that is:

Trichordist Inaugural Nyan Cat Award- Mitch Stoltz of Electronic Frontier Foundation

Trichordist’s Inaugural Nyan Cat Award For Web Based Idiocy.

This weeks winner is Mitch Stoltz a staff attorney at the Electronic Frontier Foundation.   I caught him rudely and incorrectly lecturing someone on facebook.

Mitch Stoltz … Prove that the Pirate Bay is actually harming artists in any significant way, and that more copyright law will remedy that harm, and that new law will work better than market-based solutions like offering more lawful entertainment that’s easy to buy and use at reasonable prices. Then we’ll talk.

First Mitch Stoltz  you are a lawyer and you should know better.  The Pirate Bay and their ilk are  using artists copyrights without permission. You should know that in itself is a violation of the law and by definition is a “harm”. Taking away the artists right to chose how, where and when to exploit their own copyrights is “harm”.  The artist doesn’t have to show some other sort of “harm”.  Are you saying that any for-profit website should just be able to use an artist’s song however they want without compensation or permission until the artist  shows something like economic harm?  Where did you get your law degree?

Okay let me give you the benefit of the doubt.  Maybe what you actually meant was  “economic harm”.  Prove piracy economically harms artists? You are joking right?  It’s been proven time and time again.  There are 14 academic peer reviewed studies that conclude  piracy has a negative effect on revenue.  There is a very recent peer reviewed academic  meta-study by Stan Liebowitz (2011) which reviews the data from virtually all the academic studies and comes to the same conclusion.  I will gladly have copies sent to your offices if you can’t find them on the web.  But may I humbly suggest you venture outside the anti-copyright echo chamber every once in a while and you might learn something.

Regarding your implication that un-authorized exploitation  is the result of no one “offering more lawful entertainment that is easy to buy at reasonable prices?”   Have you never heard of iTunes?  Amazon? MOG?, Pandora?, Rhapsody?, Spotify? Netflix? Hulu?  How can you argue this  with a straight face?  Unauthorized file sharing exists because people get music for free and file-sharing sites make money from advertising or “premium” accounts.  Not because they are offering a better service.   This is a phony argument.  You know it.  I know it.  We all know it.  Be a decent human being and stop using it.

And please don’t throw around the term “market solutions”  unless you are prepared to honestly analyze the entire unauthorized use industry in the same light.  Unauthorized use takes away the right of artists to participate in the free market by forcing them to compete with free versions of their own products.  Refusing to enforce existing copyright  law and allowing rampant unauthorized  use amounts to mass collectivization.  A sort of digital maoism and that, my friend is the opposite of “free markets”.

Further the for-profit-unauthorized-use industry is what inhibits the formation of additional legal media sites. Not the other way around. Basic common sense should tell you this.  Why would people buy cars legally if they could get stolen ones for free with no threat of social or legal punishment?  Who’s gonna open a new car dealership?  This is the same nasty quirk of human nature that makes normal law abiding citizens loot.   Arguing that nothing is to be done in this situation is an unethical and immoral choice that YOU are consciously making.

What people like you refuse to understand: How are individual independent artists supposed to take on the entire for-profit un-authorized use industry?  99 percent of the people harmed by file sharing are the independent artists, the audio engineers, the roadies,  the independent recording studios, the independent and specialty labels, the independent record stores, the independent publicists, the bus drivers etc etc.  The vast majority of people harmed by unauthorized exploitation of artists rights are not rich and powerful. Unlike the EFF they do not have washington lobbyists to argue their case or employ staff lawyers to troll the internet arguing for their rights. The working class of the music business do not have foundations that receive large corporate donations to help them fight for their rights. The 99% are the 99%!  The basic point of the law and civilization is to protect the weak from the corrupt and powerful. When you were an idealistic young law student could you ever imagine that one day you would be arguing against the weak and powerless and for the corrupt and powerful?    How do you sleep at night?

I know what you are gonna argue next.  May I?

You agree with me on artists rights but inhibiting access to websites that  enable unauthorized file sharing, human trafficking, underage prostitution, counterfeit drugmaking and  child pornography will require “breaking the internet”.   In addition you will argue that there is something deep in the architecture of the web that will not allow any filtering of the web that won’t also be a danger to free speech.   I’ve got that right? Right?

This is absolute bullshit.  And I should know.  I was pushing and “acking” packets back when there was only TCP  without the IP.  If you don’t know what I’m talking about you can’t possibly know anything about the architecture of the internet.  There is nothing in the architecture of the internet that makes policing and free speech incompatible.  Anyone that that says otherwise does not know what they are talking about or they are willfully misleading the public under color of technological authority. 

To those that are not technologically savvy,  this is like saying that you can’t have any sort of traffic laws on the US Interstate Highway System because it will inhibit our freedom.

What the glassy eyed internet “freedom” types do not understand is that it’s not “the pipes’ of the internet that give us free speech.  It’s our democratically empowered institutions that give us free speech.   Plenty of dictatorships have “free” pipes.  What good is a “free” internet if the secret police come to your house and murder you for speaking out?  or Anonymous takes down your website for saying something they dislike?  According to your own organization Mexico has one of the most open and free internets on the planet.  Yet bloggers in the northern states routinely self censor so the criminal cartels won’t murder them.

Remember we had freedom before there was an internet.

Final question: Is it really the Electronic Frontier Foundations position that The Pirate Bay and other artist exploitation sites do not harm artists?  Cause I’d love to debate you on that.  We can do it at the University of Georgia next fall. I’ll see if I can get the Law School to sponsor it.   You game?  I’ll give you the Nyan Cat Award at the same time.