Weekly Recap News & Links Sunday December 9, 2012

Grab the coffee!

Happy Holidays, it’s been a slow week at The Trichordist following the ongoing IRFA and RSC meltdowns…

FROM AROUND THE WEB:

The Drum:
* New international reports will name and shame brands which advertise on websites that feature pirated film and music content

Background Briefing with Ian Masters:
* Is the Door Closing for Musicians in Digital Age?

AdLand:
* Selling the Canadian government and wives on the same networks : demand accountability now
* Let the social media Cola Wars begin
* Istagram pulls twitter integration, need to puff their own site stats to ‘monetize’ and keep investors happy

Paid Content:
* If you want to hurt pirates, target their ad money says rockstar

Seeking Alpha:
* Pandora, The Underpants Gnomes, And Sirius XM

Vox Indie:
* (Another) Misleading Study (Sort of) Claiming Piracy is Good for the Movie Biz…
* Google Search #FAIL Means More $$$ for Them

Copyhype:
* Does Copyright Involve Scarcity?

Ethical Fan:
* Torrent Freak: US BitTorrent Traffic Grows 40% from 2011 (Sandvine)

Torrent Freak:
* NZBMatrix Shuts Down Citing Piracy Troubles
* Record Labels go to High Court to Force More ISPs to Block Pirate Bay
* Pirate Bay Proxy Loses Domain Name to Anti-Piracy Boss

Digital Music News:
* US Album Sales Down Just 4% On the Year…
* iTunes 11: Be Very Afraid, Spotify…
* Major Labels: We Spend Up to $1.4 Million Developing a New Artist…

The Illusion of More :
* The Opaqueness of Transparency
* Why isn’t the Internet breaking?
* Google Protects IP (its own)

The Washington Post:
* Justice Department meets with firms seeking Google antitrust probe

Business Insider:
* Google Is One Vote Away From Being Slammed With A Massive Anti-Trust Suit By The FTC

Music Technology Policy

I was struck by a continuing theme during the recent hearing on “Music Licensing Part One: Legislation in the 112th Congress” before the House IP Subcommittee (the “IRFA hearing”).  Mr. Chaffetz wants to do the right thing but he got some really bad advice.  There were flickers of connections between Mr. Chaffetz’ questions and other statements by the usual suspects (and many Google Shill Listers) none of whom really know anything about the music business but all of whom “make stuff up” (to paraphrase the classic words of David Lowery at the Future of Music policy conference).

For example, Mr. Chaffetz asked Jimmy Jam whether Jimmy thought that the allocation of royalties among the sound recording owners, featured artists and nonfeatured artists was “fair.”  Now why would he ask that question and why was he surprised that Jimmy did think the allocation was fair?  The issue was not part of the bill and to my knowledge…

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Weekly Recap & News Sunday Dec 2, 2012

Grab the coffee!

Recent Posts:
* Lars Was First And Lars Was Right
* Zoë Keating’s Request for Internet Transparency met w/ usual Hypocrisy
* The Most Important Fact Academics and The Copyleft Neglect to Mention: Copyright is Optional.
* Giving Thanks for Creators Rights and Copyright
* Congressional Research Service Memo on Constitutionality of IRFA Section 5
* Other Than That Mr Westergren, How Was The Play? IRFA Gets An Ass Whupping
* Or Pandora Could Add Another Minute Of Advertising And Raise Their Revenue 50%
* Video of the “Radio Active” panel at The Future of Music Summit 2012.
* The Internet Radio Fairness Act’s Attack on Free Speech
* This photo says it all
* Google’s Serial Obfuscation: Music Canada,BPI, Billboard Question Whether Google Has Really Lowered Pirate Sites Search Rankings
* IRFA is the Broadcast Industry’s SOPA. Censors Free Speech
* IRFA and the Future of Music Policy Summit: Why Would FOMC Miss An Opportunity to Defend Artist Rights?

IRFA-APLOOZA:

Seeking Alpha :
* The Internet Radio Fairness Act Will Fail

Ars Technica :
* Pandora’s Internet radio bill hits a wall of opposition in Congress

CNET :
* Pandora’s Web radio bill is doomed — well, for now

House Judiciary Committee – Video of the Hearing:
* Music Licensing Part One: Legislation in the 112th Congress

WELL, THIS IS EMBARRASSING – OOOPSIES! THE RSC’s FICTIONAL LOOK AT COPYRIGHT IS RECALLED IN LESS THAN 24 HRS:

Techdirt:
* House Republicans: Copyright Law Destroys Markets; It’s Time For Real Reform
* That Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright Reform

Precursor Blog:
* The Copyright Education of Mr. Khanna — Part 2 Defending First Principles Series

Copyhype:
* Republican Study Committee Policy Brief on Copyright: Part 1
* Republican Study Committee Policy Brief on Copyright: Part 2

Music Tech Policy:
* Critiquing The “Free Culture” Book Report or “The Copyright Education of Mr. Khanna”

FROM AROUND THE WEB:

Mercury News:
* German lawmakers call Google campaign ‘cheap propaganda’

“The campaign initiated by Google is cheap propaganda,” said conservative lawmakers Guenter Krings and Ansgar Heveling.

“Under the guise of a supposed project for the freedom of the internet, an attempt is being made to coopt its users for its own lobbying,” the two said in a statement.

Stereogum:
* Deconstructing: Pandora, Spotify, Piracy, And Getting Artists Paid

Pitchfork:
* Making Cents – Damon Krukowski of Galaxie 500 and Damon & Naomi breaks down the meager royalties currently being paid out to bands by streaming services and explains what the music business’ headlong quest for capital means for artists today.

The Cynical Musician:
* Reco’nize: The Original Cynical Musician (Lars Ulrich)

Billboard:
* Songwriters Are Left Out of Pandora’s Royalty Plan: Guest Post by Downtown Music’s Justin Kalifowitz

The National Review Online:
* Myths and Facts about Copyright

VoxIndie:
* How Are Google’s Anti-Piracy Search Policies Working?

Digital Music News:
* We’ve Written Some of the Biggest Songs In History. And This Is What Pandora Pays Us…
* If You Stream a Song Once a Day, When Does It Pay the Same As a Download?
* My Song Was Played 3.1 Million Times on Pandora. My Check Was $39…
* Finally: A Solution for Pandora’s Financial Problems…

Torrent Freak:
* IMAGiNE BitTorrent Piracy Group “Sysop” Jailed 40 months
* BitTorrent Site Owners Fear European Domain Name Seizures
* Canada Set For Mass BitTorrent Lawsuits, Anti-Piracy Company Warns

Music Tech Policy:
* The Artists, United, Can Never Be Defeated
* Too Big to Fix Part 1: YouTube’s Thimblerig, or What’s Inside Your Black Box Today Mr. Schmidt?

Copyhype:
* Friday’s Endnotes – 11/30/12
* A Brief History of Webcaster Royalties
* The Purposes of Copyright Law and “Anti-Copyright” Arguments

Worth an encore, Lars Ulrich predicts the demise of Artists Rights to Internet Robber Barrons in 2000 on The Charlie Rose Show.

Congressional Research Service Memo on Constitutionality of IRFA Section 5

Senator Ron Wyden and his staff director Jayme White were kind enough to ask the Congressional Research Service to conduct a legal analysis of the concerns regarding Section 5 of the so-called “Internet Radio Fairness Act” that we have raised on Trichordist and that David Lowery raised directly with Senator Wyden at the Future of Music Coalition Policy Summit in Washington on November 13.

You can read the entire memo here, but the part that interests us the most is this section:

David Lowery, writing for the Thetrichordist.com, has argued that “Section 5 of IRFA is perhaps the most pernicious part of the bill, for it would make it illegal for anyone to criticize digital sound recording licensees. If IRFA becomes law, artists and artist organizations will need to watch what they say in public in opposition to [certain licensees’]direct licensing efforts.”  It seems that Lowery takes issue with the use of the words”any action” that would”prohibit, interfere with, or impede”negotiations.

He argues that these terms are too broad and could apply even to those who would criticize licensees for attempting to negotiate direct licenses with copyright owners. Another concern cited by Lowery in opposition toSection 5 is the ambiguity inherent in the language “any copyright owners acting jointly.”

This language does not necessarily seem to be limited to large member-based royalty collection organizations like SoundExchange. It may be broad enough to encompass, for example,the members of an individual band, who might be considered to be individual copyright owners, acting jointly. Under this broadreading of the language, an argument could be made that a band, posting its criticisms of direct licensing negotiations between a licenseeand a copyright owner, would betaking an action that would interfere with a direct licensing negotiation, therebyviolating Section 5.

Though this hypothetical presents a broad interpretation of the language of Section 5, it is not an implausible one. It is possible that the language may be broad enough to cover a blog post by a band expressing their opinion regarding contract negotiations between a licensee and a copyright owner. Nonetheless, it seems unlikely that, in practice, Section 5 would impinge upon First Amendment rights….

But it’s not “implausible.”

Other Than That Mr Westergren, How Was The Play? IRFA Gets An Ass Whupping

Yesterday the Internet Radio Fairness Act got a hearing before congress and promptly got it’s ass kicked.  I mean there is really no polite way of saying it.  Democrats and Republicans alike were scornful and clearly not interested in hearing Pandora’s ginned up unfairness crap. Not only did they seem to disagree with Pandora’s argument for lower royalties the committee went completely off the reservation and began to question why terrestrial radio doesn’t pay royalties to performers.  At one point Rep John Conyers asks:

“I’m still trying to figure out why artists and performers who play 24-7 on terrestrial radio don’t get a dime.”

Oops.

My favorite  part was Virginia Republican Bob Goodlatte’s scornful reproach to Pandora’s CEO Joe Kennedy

“Here we are again,  Mr Kennedy, when is a deal a deal?”

The Congressman was referring to the fact that just 3 years ago Pandora was crowing about the deal they had made with record labels, publishers and artists for royalties.  Now instead of trying to increase their paid subscribers, or increase advertising revenue, they are back asking congress for a handout.

And doesn’t congress have better things to do?  A fiscal cliff or something?

Or Pandora Could Add Another Minute Of Advertising And Raise Their Revenue 50%

Silicon Valley tech gurus  love to tell musicians that they “need new business models.”  This is kind of funny when you consider that most of these folks work for companies that have never shown a profit. Never!  Whereas my web-enabled businesses Cracker and Camper Van Beethoven  (like many bands) have been profitable for decades.  So can someone please tell mewhy we’re supposed to  listen to these serial failures with their snake oil schemes?

I think it’s high time that artists turn the tables.  We should tell these folks how to run their businesses for a change.  Quit whining and bootstrap it! Just like we had to when we were starting our bands.  Sell T-shirts or something!

For instance here’s how Pandora can increase their revenue 50%:

1. Pandora plays one minute of commercials per hour.  Satellite radio plays about thirteen minutes an hour. Pandora could easily double the number of ads and still have a very pleasant consumer experience.

2. Pandora made approximately $86 million from advertising on total revenues of $101 million last quarter.  Let’s say they double the amount of advertising and they only generate another 65 million from doubling ads.  This gives them a minimum of $151 million in revenue. And that is an increase of 50%.

But seriously folks, have investors considered that the so-called Internet Radio Fairness act could take years to pass?  And then once it passes it requires the President to appoint new judges that would have to be approved by the Senate.  Does that sound like a quick fix to you folks?  But that’s not all . These new judges would then have to convene new hearings on the royalty rates under the new below fair market value standards.    This would take years.

On the other hand Pandora could start increasing revenue tomorrow by simply airing more ads.  This is what most main street businesses do.  They need more revenue?  They generate more revenue.  They don’t run to the federal government to force their suppliers to lower their prices!  Adapt or die Pandora!

Of course we know the IRFA is about more than royalty rates.  This is about agency capture.  It’s about replacing current judges with judges that are more friendly to the the Tech and Broadcast industry’s agenda.  It’s about not allowing artists and their representatives to speak out when mega-broadcasters propose direct licensing deals that benefit labels at the expense of artists.   We artists could be prosecuted under The Sherman Act if this bill passes!

Let’s just hope that congress sees this for what it is: Crony Capitalism.

The Most Important Fact Academics and The Copyleft Neglect to Mention: Copyright is Optional.

This started as a quick response to a piece that Paul Resnikoff ran on his excellent Digital Music News blog.   I realized later that I really had a more general point to address.  There is a large contingent of people in the Copyleft (especially academics) that don’t seem to realize that eliminating copyright actually reduces choices and empowers rich and powerful corporations. 

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

A few years ago I had the pleasure of seeing comedian Patton Oswalt at my wife’s venerable DIY/indie music venue The 40 Watt club.

Patton opened with an apology to the largely liberal academic and college students in audience.

“I want to sincerely apologize for my opposition to gay marriage, I realize I may have offended many of you. But no one told me  gay marriage wasn’t mandatory”.

This is what is so incredibly stupid about the copyright debate. The tech lobby has created an army of ignorant academics, tech public policy apparatchiks and paid bloggers that seem to not understand that copyright is not mandatory.  Anyone is free to enter into a creative commons like licensing agreement or even just give away their music by fiat if they chose.  The hybrid/sharing economy is here and it’s thriving.

In fact that is what I do with some of my repertoire.  Cracker and Camper Van Beethoven have had a Grateful Dead inspired taping/sharing policy since our inception in the the early 1980’s.  We have thousands of live tracks on the internet music archives I unequivocally support an artist’s right to monetize his/her songs however they see fit. Or not to monetize those songs.

Eliminating Copyright protections does not increase choice by artists but limits them.  It does the opposite. We would no longer be able to choose how we monetize songs.  We could not chose with whom we do business. Eliminating copyright is mandatory collectivization, it’s closer to something that totalitarian regimes impose than the kind of free choice we provide in our democratic societies.

If this had been the public policy in the 1950’s and 1960’s the mafia connected Morris Levy wouldn’t have even had to buy those R&B singers the occasional Cadillac. He could have paid them nothing.  Most of the digital shysters arguing that they they want to “help” artists by “promoting” their music and paying them nothing are making the exact same arguments that Morris Levy made to artists in the 1950s and 1960’s when artists came to him asking for money.

Those calling for the abolition of copyright protections would simply be allowing multinational corporations like Universal Music, Google, Apple and BitTorrent  to exploit artists without little or no compensation.   It would make the most exploitative practices of the old music business look like childs play.

While it may seem revolutionary to many academics and bloggers to sit behind a computer and post invectives against copyright and the major record labels it’s not. It’s actually a regressive pro-corporate activity.  The truth is the rights of millions of individual artists (not record labels) would be destroyed in the process.  While mostly large multinational corporations would benefit.

The ideals of western civilization are ultimately designed to protect the rights of the weak, poor and powerless against the strong rich and powerful.  It may seem stupid in this age of cynicism and greed to measure policies against the fundamental principles of western civilization.  But it is not.  Especially if you believe in leaving behind a better and fairer world. If academics and intellectuals have time and energy for “fair trade” coffee isn’t it hypocritical that they don’t want to ensure that artists (the vast majority of which are in the developing world) are also fairly compensated and not exploited?

In an age when we are obsessed with advancing the rights of formerly persecuted minorities  and generally making the world a kinder place.  It is startling to see so many people arguing to make the world less fair and less civilized place for the milions of individual artists on the planet.  I can’t help but wondering if these generally progressive academics and intellectuals have really thought through their opposition to copyright.

Zoë Keating’s Request for Internet Transparency met w/ usual Hypocrisy

We’ve been following Zoë Keating’s blog for a while. Zoë represents (figuratively, not literally) a new generation of musicians whose careers have only really existed in the post-internet, pro-piracy environment. As such, the perspective of these artists who have little experience in the world prior to optional payment and virtually no artist control over the distribution of their work is somewhat different from those who have inhabited both environments.

We celebrate the Zoë Keatings of the world for their undying tenacity in their efforts to navigate the current music industry without having had the benefit of the pre-piracy era. Zoë’s made a few excellent observations and suggestions. One recent post has been to ponder the creation of a new artists rights coalition to represent the needs of contemporary indie and DIY artists. Another post has been soul searching on what might be the fair way to set appropriate royalty rates across the various terrestrial, satellite and internet streaming radio platforms.

But it is one of Zoë’s most recent posts which has really caught our attention, as Zoë has been “slashdotted” just for asking for transparency and data sharing from the internet companies profiting from the artists work.

In the case of a service like Pandora, when someone has taken the time to create a station around my music or given my songs a “thumbs up”… I’d rather know where in the world those particular listeners are than be paid the $0.0011 per play that is currently required by law. That was my point.

Now, we don’t think this should have to be a choice, and we think Zoë has an excellent point, especially given that the Declaration Of Internet Freedom specifically states transparency as one if it’s principles.

Declaration of Internet Freedom

We stand for a free and open Internet.

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

Expression: Don’t censor the Internet.

Access: Promote universal access to fast and affordable networks.

Openness: Keep the Internet an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate.

Innovation: Protect the freedom to innovate and create without permission. Don’t block new technologies, and don’t punish innovators for their users’ actions.

Privacy: Protect privacy and defend everyone’s ability to control how their data and devices are used.

As with many things we’ve seen from the tech sector, there always seems to be selective reasoning when it comes to them actually adhering to their own principles. This from the same people who want permissionless innovation, up and until, you are not asking them for permission as Google is illustrating with Doogle.

Of course the double standard and irrationality of the freehadist hive mind doesn’t stop there. Among the comments posted, this one is indicative of the faulty logic and thinking expressed by so many of the anti-artist maximalists.

“She got money, I got music. There was no agreement to get my data. 0% is hers.”

The point that should be emphasized is that there was no agreement period. Pandora gets a compulsory license. It gets the benefit of a “one-stop shop” for all sound recordings so long as it pays the rates, no questions asked. Congress took away from Zoe Keating the choice to make that agreement. So it’s also perfectly valid to say that Pandora should also turn over some data to artists in exchange for that – especially if the consumer is (and should be) given the choice to opt-in.

We are pro-choice and respect consent, and we believe that the internet and tech community should also as well.

Giving Thanks for Creators Rights and Copyright

It’s been said that the only thing more sacred than a human being sharing their love, is their labor. We agree. Copyright is the institution to protect the innovative artists, musicians, filmmakers, photographers, writers, illustrators and creators of all types. We are thankful for Copyright.

One of the enduring myths that we constantly hear from those who would deny individuals these fundamental protections of their labor is that copyright is an instrument of corporations to exploit artists and creative innovators. Fortunately this myth is not true. It is in fact very much a lie that copyright is for corporations. Copyright is the instrument that protects the individual from exploitation by and from the tyranny of exploitation by corporations.

Copyright is what grants the individual liberty as expressed in the freedom of choice as to who (if anyone) and how the creator allows their work, labor and love to be exploited. Exploitation in this sense is not a bad word, in so far as the creator has the right to determine who, where and how their work is exploited. Without copyright the individual is powerless from such unwanted exploitation, without consent or compensation. This is why copyright, in it’s essence, very much an issue of human and labor rights.

We are thankful for copyright and to all of our representatives and government officials who do so much good work on our behalf to protect the integrity of the individual spirit as expressed in our art.

Those who are against copyright are also fundamentally against personal liberty and aggressively against the pursuit of the freedom of choice. These are the people who wish to exploit artists for their own personal or corporate gain and like to suggest that artists would be better off without copyright. This is simply not true.

There are those who point to democratized services available to musicians such as TuneCore and CDBaby which allow any musician to access distribution such as Itunes, Spotify and others without the need for a record label. We wholehearted support these services as pro-choice for the power of the individual to make the decisions that are important to them.

These services that provide more choices to artist to determine how they choose to exploit their own work are only viable because the individual artist has the choice to use these services and not sign to a traditional record label. Without copyright, the artists ability to make these choices does not exist. The choices would be made for the artist without any ability determine the uses or the compensation for those uses. This would mean more predatory exploitation of artists, not less.

Copyright is Pro-Choice. Anti-Copyright is Anti-Choice, or Pro-Exploitation.

We think few artists would be in support of losing these rights for all the reasons detailed thus far. Opposition to copyright is opposition to individual rights and supports the unchecked corporate exploitation of artists which we have unfortunately witnessed for the past decade plus online.

We hear from many who are outraged by the wrong doings of record labels, and justifiably so. So let us be clear, any wrong doing should be unacceptable be it by record labels, or those exploiting artists online such as the many illegally operating and infringing business such as the pirate bay and others who literally pay artists nothing, not one penny. The logical disconnect that somehow record labels are bad and the illegally and infringing online businesses are good defies any reasonable justification. Unless of course the motivation is not actually the empowerment of artists, but rather the profits of these tech companies.

So lets get the facts straight. Artists have been given the choice of whom they wish to be in business with. Does anyone really think that artists will be better off with less protection of their work? There is no basis in reality for this assertion and as of this writing, over a decade into the digital economy no new robust middle class of professional musicians has been established in the one place where this theory is being tested. The exploitation economy has failed miserably to create a new sustainable professional middle class of musicians.

For those with an axe to grind with major labels and the RIAA please take note of this, without copyright, the record labels who are more powerful than the individual could just as easily take the artists work without compensation. Surely those who advocate for weaker copyright are not suggesting the records labels should be given more power over the artist? The same would be true of television producers and film studios. If these massive corporations were granted weaker copyright, than artists and creators would be subject to unrelenting exploitation. You can not weaken copyright in one area and not others. The true fallacy of the argument for weaker copyright is that in the areas where copyright is well enforced, creators are compensated greater than where copyright is weaker. This is just common sense.

Weakening copyright would not be isolated to just how rights are granted on the internet, but rather, the individual would be catastrophically disenfranchised. Those with power would exploit those with less power, be it by record labels, film studios, television producers or internet technology companies (as we’ve seen). We need to look no farther to the internet to see this already happening where copyright law is hopelessly out of date for the protection of individual freedom and where artists are so hopelessly disenfranchised and under compensated for their work.

Perhaps it is Metallica’s Lars Ulrich who first (and correctly) noted that “If the record labels are not going to get the money, the internet companies are – and if the internet companies are not going to pay artists that is profiting illegally.”

Copyright provides the foundation for each artist to make individual choices about how to leverage their work. So the truth is that every artists who has signed to a record contract has done so of their own free will, and negotiated contracts which have been reviewed lawyers. As a result of this protection of copyright the record labels must compensate the artists in exchange for a grant of rights. On the much of the internet however, there is no grant of rights, no consent and no compensation. This is categorically unacceptable.

In closing we are thankful for copyright in giving us, the innovative artists, writers, authors, photographers, filmmakers and creators the ability to chose a course of individual freedom and liberty that is fundamental to the ideals of good, fair and honest people everywhere.