Muzzling Free Speech By Artists: IRFA Section 5 Analysis

The “Internet Radio Fairness Act” has a lot to concern artists. Today, we’re continuing our section-by-section analysis of the proposed legislation because knowing is half the battle. We’ve been looking at how the bill would affect current law: strikethrough text shows what the bill would remove, while underlined text shows what it would add.

SEC. 5. PROMOTION OF A COMPETITIVE MARKETPLACE.

17 USC § 112 – Limitations on exclusive rights: Ephemeral recordings

(e) Statutory License.—

(2) Notwithstanding any provision of the antitrust laws, any copyright owners of sound recordings and any transmitting organizations entitled to a statutory license under this subsection may negotiate and agree upon royalty rates and license terms and conditions for making phonorecords of such sound recordings under this section and the proportionate division of fees paid among copyright owners, and may designate common agents, on a nonexclusive basis, to negotiate, agree to, pay, or receive such royalty payments. Nothing in this paragraph shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).

17 USC § 114 – Scope of exclusive rights in sound recordings

(e) Authority for Negotiations.—

(1) Notwithstanding any provision of the antitrust laws, in negotiating statutory licenses in accordance with subsection (f), any copyright owners of sound recordings and any entities performing sound recordings affected by this section may negotiate and agree upon the royalty rates and license terms and conditions for the performance of such sound recordings and the proportionate division of fees paid among copyright owners, and may designate common agents on a nonexclusive basis to negotiate, agree to, pay, or receive payments.

(2) For licenses granted under section 106 (6), other than statutory licenses, such as for performances by interactive services or performances that exceed the sound recording performance complement—

(A) copyright owners of sound recordings affected by this section may designate common agents to act on their behalf to grant licenses and receive and remit royalty payments: Provided, That each copyright owner shall establish the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other copyright owners of sound recordings; and

(B) entities performing sound recordings affected by this section may designate common agents to act on their behalf to obtain licenses and collect and pay royalty fees: Provided, That each entity performing sound recordings shall determine the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other entities performing sound recordings.

(3) Nothing in this subsection shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).

(4) In order to obtain the benefits of paragraph (1), a common agent or collective representing copyright owners of sound recordings must make available at no charge through publicly accessible computer access through the Internet the most current available list of sound recording copyright owners represented by the organization and the most current list of sound recordings licensed by the organization.

This section is far more troubling than it first appears.

The effect of IRFA as a whole would be to reduce the amount of royalties that companies like Clear Channel, Sirius XM Radio, and Pandora have to pay to recording artists.

For most companies, arrangements between buyers and sellers are negotiated on the open market. But for a number of reasons, the Copyright Act establishes a compulsory license for certain uses of digital sound recordings with the license terms and rates set by the Copyright Royalty Board.

So companies like Sirius XM and Pandora already have an advantage that many businesses don’t have: government-guaranteed access to the content that drives their business at a rate set by law. Compulsory licensing is compulsory: there is no opting in or opting out for artists.

But compulsory licensing doesn’t preclude direct licensing under the current law — that is, without IRFA. Copyright owners are — and always have been — free to negotiate privately with copyright users. Sirius XM has been particularly aggressive in recent years in pursuing such direct licensing, and Clear Channel is right behind Sirius with their own direct deals.

What does this mean for artists? First of all, in practice, this means that the rates set by the Copyright Royalty Board act as a ceiling — no licensee is going to pay more than the compulsory rate. They are guaranteed access to every sound recording on the market at the CRB’s rates.

So why would recording artists or sound recording owners want to accept a deal that gives, say, Sirius XM more rights for less money?  (Bearing in mind that many artists own their sound recordings.)

Here’s one reason. During recent proceedings, Sirius XM Executive VP David Frear testified that “Among other things, [record companies] recognized that by entering into direct licenses with Sirius XM, they gained the potential for enhanced airplay and greater exposure for their recording artists.” Left unsaid was the corollary to this: refusing to enter into a direct license could mean less (or no) airplay.

Direct licensing, in conjunction with a compulsory licensing scheme, thus gives licensees all stick and no carrot. And when you’re terrestrial radio giant Clear Channel, or the only satellite radio provider, or Pandora — which accounts for 37% of all digital sound recording royalties — that’s a pretty big stick. (Pandora and Sirius XM together account for 90%.)

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 Sirius and Clear Channel’s direct licensing efforts.

This is not an exaggeration or hyperbole — it is already happening. The provisions of Section 5 seem to be a direct response to groups like American Association of Independent Music (A2IM), SoundExchange, and major record labels cautioning recording artists about the drawbacks to a push by Sirius XM to license recordings directly following the latest rate-setting proceedings.

In March 2012, Sirius XM filed a lawsuit against SoundExchange and A2IM alleging anti-trust violations for their efforts to resist what SoundExchange and A2IM saw as a raw deal from Sirius XM’s direct licensing push. Now, for starters, it might seem odd that a company with an effective monopoly on satellite radio is complaining that a non-profit nonexclusive collecting agency and a trade association representing hundreds of small companies are violating anti-trust laws.

But the allegations that Sirius made in the lawsuit should concern any artist. Sirius XM essentially argues that various public communications concerning its direct license program amount to anti-competitive behavior — not anti-competitive conduct, just speech.

One such communication identified in Sirius XM’s anti-trust suit includes this August 2011 blog post by A2IM. In its lawsuit, Sirius XM points specifically to a paragraph that states:

In general statutory licenses have been good for the independent music label community as statutory licenses insure that all music label copyrights, whether those of the major labels or those of independent labels or artists, are treated equally and paid the same rate amount for each stream (play) of that music. Under direct licenses there are cases where independents have received less than equitable rates.

And lest you think only industry groups would be caught in the crosshairs, it’s not unlikely that artist advocacy organizations could face legal liability. Sirius XM also refers to a statement made by the Future of Music Coalition, in its November 2011 newsletter:

Here at FMC, we want artists to get the money they’re owed for the use of their music on any platform. The statutory rate for digital performance plus direct payment via SoundExchange is an important piece of the compensation puzzle for creators. Bypassing it might benefit the bottom lines of major corporations in the short run, but it’s a dangerous thing for performing artists.

This is the type of explanatory speech — not conduct — that Sirius XM thinks is illegal and IRFA definitely would outlaw. Again, it would make it a violation of the Sherman Act for “any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing.” Whenever two or more artists are gathered, Sirius XM (and Clear Channel, and Google) will be there.

The statements above are already alleged by Sirius XM to violate existing anti-trust laws. To be clear, the allegations are absurd — these statements are clearly not urging an unlawful “boycott” against Sirius XM’s direct licensing, and even if they were, Sirius doesn’t lose out since it already has access to every sound recording on the market under the compulsory license. There’s also a much simpler and way less conspiratorial explanation to the public response that Sirius complains of: maybe the labels who spurned Sirius XM’s proposal just didn’t like the deal. But Section 5 of IRFA would ensure that the law explicitly prohibits any criticism of direct licensing deals.

So if IRFA becomes law, if you don’t like the deal, you better keep it to yourself.

by Trichordist

Bad News, Good News, Bad News. Internet Radio “Fairness” Act Sponsor and Conservative UT Congressman Chaffetz Taunts Musicians; Admits to Belief in Evolution; Urges Government Interference In Markets.

Rep Jason Chaffetz R-UT “conservative” Republican from Utah and sponsor of the ironically named “Internet Radio Fairness Act” shocked his constituents by accidentally admitting to his belief in dinosaurs and evolution while attempting to taunt musicians and urging government interference in markets.  In response to musicians opposition to his bill he told The New York Times.

“The old-school dinosaurs are trying to help, but they’re stuck in the tar,” he said. “They can go talk to the pterodactyls.”

Never mind the taunt doesn’t make any sense. It brings up some intriguing questions:

Old school dinosaurs?  Are there new school dinosaurs? Who are the dinosaurs trying to help?  Musicians? Or Pandora? Or are the Musicians the dinosaurs?  Wouldn’t the pterodactyls be flying around and not stuck in the tar pits?  And who’s supposed to talk to the pterodactyls ? the other dinosaurs? Or the musicians? Do the pterodactyls represent internet radio? Are pterodactyls the implied “new school” dinosaurs? And I’m not trying to be purposely obtuse but I’ve been to the LaBrea tar pits and it was mammals like mastodons and sabre toothed tigers that got stuck in the tar pits.  Not dinosaurs.  Is this part of the metaphor I don’t understand? Is this a zen koan? Is the Congressman operating on a higher level of consciousness?

All kidding aside, should we really be surprised that Chaffetz could be so ideologically flexible? And to be clear there is nothing wrong with being ideologically flexible to a certain extent.  According to Wikipedia the anti-gay marriage conservative Utah legislator  is half brother of actor John Dukakis the adopted son of Governor Dukakis.  Chaffetz was originally a democrat.  Indeed he was the chair of the Dukakis For President campaign in Utah. Later in life he switched party affiliations to the Republican party.   With strong support for gay rights and democratic policies coming from his father and extended family thanksgiving dinners must be pretty complicated affairs at the Chaffetz house!

So it should be no surprise that this supposed free market advocate could be “ideologically flexible”  enough to sponsor a bill that asks the government to set prices; to pick winners and losers; and force musicians through government mandate to bail out a private company that continues to stick with a bad business model (one minute of ads an hour). Oh and this private company happens to be a campaign donor.

What happened to the free market ideals?  I guess that’s for dinosaurs.

by trichordist

Madison Avenue and Media Piracy, Are Online Ad Networks the Birth of SkyNet?

In the mythology of the Terminator Sci-Fi movies it is a military defense computer system (SkyNet) that achieves consciousness through artificial intelligence and declares war on human beings. In reality, it appears the first computer networks to declare war on us may be advertising networks, ad bots, and online AI advertising auctions.

If one is to believe the various people responsible for the millions (er, uhm billions) of dollars flowing through online advertising networks (Google alone is estimated to be $30b annually) you could easily believe the machines have already achieved consciousness as no human being we speak to seems to have an actual understanding of how online advertising networks function.

It all appears to be a mystery as to how the money changes hands down stream, and how to determine who is getting paid from what specific ad placements and on what specific sites.  We had one ad network executive tell us privately “we can not control where the ads end up”.

Really?  So the online ad networks are Skynet?

This would seem to an alarming problem for buyers of advertising including such respected brands as Wendy’s, Yahoo, BMW, Adobe, Cadillac, LG, Target, Westin Hotels, Priceline, Hyatt Hotels, Weight Watchers, VISA, State Farm, Mini Cooper, ADT Security and even Presidential Candidate Mitt Romney.

It would probably be pretty embarrassing for a multinational electronics company like LG and a Presidential Candidate to both be advertising on two of the Top 20 most infringing sites in the world, wouldn’t it? Uh oh, don’t look now…

If the machines are already in control we should probably be worried, but we do think it’s odd they would be so focused on a capacity that only seems to transfer wealth from artists, musicians, filmmakers, authors and other creators to internet millionaires running ad networks and pirate sites.

Certainly if Google and the other ad networks had knowledge of the top infringing sites say through a publicly accessible transparency report based on DMCA notices, they would not be serving ads to those businesses operating far beyond the intention of the law? Certainly if they knew that just the Top 20 infringing sites had over 2.3 Million claims in just one month, than Google and the other advertising networks would clearly make a best practices “no fly zone” for advertising on those sites, wouldn’t they?

We’d much rather see this advertising revenue directed towards legally operating and legitimate media outlets such as television, newspapers and magazines who no doubt are also in need of revenue in an ever competitive marketplace. Why finance the pirates who are illegally exploiting others in the creative industries? How much money is being lost from legitimate media outlets to media pirates?

Below is a random sampling of artists exploited by these Madison Avenue Brands and the sites hosting the advertising. We wonder who is serving these ads, and paying these sites because everyone we talk to denies advertising on these sites and seems to know nothing about it.

TOM WAITS Exploited By Wendy’s, Yahoo, BMW, Mitt Romney, Adobe, Cadillac, LG, Target, Westin Hotels, Priceline, Hyatt Hotels, Weight Watchers, VISA, State Farm, Mini Cooper, ADT Security

* BMW on Kick Ass Torrents
* Mitt Romney, ADT Security on 4Shared
* Adobe, Mini Cooper on FilesTube
* Cadillac on FilesTube
* LG on FilesTube
* Target on Mp3Crank
* VISA, State Farm on Mp3 Crank
* Wendy’s on Kick Ass Torrents
* Westin on Kick Ass Torrents
* Priceline, Weight Watchers on 4Shared
* Hyatt on 4Shared
* Weight Watchers, Hilton on 4Shared
* Yahoo on Dilandau
* Urban Outfitters on FilesTube

U2 Exploited by United Airlines, Jet Blue, HP, State Farm, Westin, Urban Outfitters, Sprint, AT&T, Amazon, Disney Resorts, Crate and Barrel

* United Airlines x2 on h33t
* United Airlines on mp3 bear
* United Airlines on FilesTube
* Jet Blue and Kayak on h33t
* Hewlett Packard and State Farm on mp3skull
* Westin Hotels on 4shared
* Westin Hotels on mp3raid
* Urban Outfitters on mp3skull
* Sheraton Hotels on mp3skull
* Century 21 on 4shared
* Alaska Airlines on torrent reactor
* State Farm on torrent reactor
* Sprint on torrrent reactor
* Sheraton Hotels on 4shared
* Hewlett Packard x2 on filestube
* Hewlett Packard and State Farm on mp3skull
* Hewlett Packard on h33t
* Rejuvenation on filestube
* Disney Resorts on torrent reactor
* Crate & Barrel on Files Tube
* Charter Cable on mp3 raid
* AT&T on mp3skull
* Amazon on 4shared

These two examples above are just the tip of the iceberg, and it’s not just the most well known and respected mainstream artists who are effected. Perhaps even more so it is the smaller artists who have been the most hard hit by this diversion of revenue without compensation Aimee Mann, Neko Case, Talib Kweli, Death Cab For Cutie and Jared Leto to name a few.

It would also appear that Google makes plenty of money serving ads on sites that it knows are infringing. Here is Google’s Doubleclick serving an ad for Jeep on http://www.dilandau.eu   This is a site that Google’s own transparency report ranks as the 24th most copyright infringing site in the world.  Isn’t knowingly providing money to an illegal enterprise a RICO predicate?

One would think with this kind of information there would be a move to improve the situation for rights holders, but looking at this graph it appears to be getting worse, much worse.

The bottom line is, we wonder how such mass scale, enterprise level and generally sketchy businesses can continue to go unchecked without any reporting from the mainstream media (who also depend on ad dollars that are now going to competing businesses engaged in media piracy and mass scale copyright infringement).

Once upon a time no one thought twice about “accounting irregularities” at Enron and we all know how that story ended. So who’s gonna ask the hard questions and get some real answers? Operators are standing by…

by trichordist

Weekly Recap Sunday Nov 4, 2012

Grab the Coffee!

Recent Posts:
* Techdirt Is A Never Ending “Dumb Off”
* Untruth in Advertising: Pandora’s Misleading Plea To Listeners On Behalf Of The Internet Radio “Fairness” Act.
* Mellencamp Character Assassination. The New Republic Bravely Stands Up For Corporations and Criminal Groups That Exploit Artists.

From Around The Web:

Ars Technica
– Artist who sued Twitter over copyright declares victory—via settlement
– The Russian underground economy has democratized cybercrime
– Google settles Rosetta Stone lawsuit, its last major dispute over AdWords

Copyhype
– Friday’s Endnotes – 11/02/12

Music Producer Tunnidge via Facebook
– Tunnidge Facebook Post
“I am going to try and be as obvious as possible. Without being able to make money from our music it effects greatly our ability to make the music, more often it stops us.”

Vox Indie
– Where’s Our Outrage When Internet “Free Speech” is Really Under Attack?
– Blogspot.com, a Bridge to Piracy?

The Illusion Of More
– On Letting Foxes Mind Chicken Coops

The Register UK
– The Big Debate: OK gloomsters, how can the music biz be FIXED?

Zoe Keating
– Towards a manifesto
“We can’t just hope that the interests of music and technology companies will always magically align with ours. We have to participate in the process. Otherwise, we just have to accept that anachronistic legislation, policies and deals will continue to be written without our input. We need public policy that reflects us. We need fair royalty schemes. We need companies to build our interests into their business models.”

Popup Pirates
– Theft is not “Free Speech”

Music Tech Policy
– Mellencamp Is Right, Brand-Supported Piracy Screws Songwriters AGAIN: Snakes in the Grass, @McDonalds, Google and Other Species of Vermin

Digital Music News
– It Gets Worse: Pandora Executives Have Dumped $63 Million In Stock In the Last Year…
– 13 Extremely Scary Things About the Music Industry Today…

Tape Op
– ON SPOTIFY (AND WHY I’M NOT A CONSPIRACY THEORIST AFTER ALL)

Copyright Alliance
– AN INVITATION TO FREE INTERNET ADVOCATES TO JOIN US
“Without free speech, copyright protection is meaningless. The two rights are critical to artists and combined have proven to be a powerful force for social justice around the world. That is why we consistently and openly advocate for a fair and open internet that champions free speech as well as respect for authorship.”

Torrent Freak
– Piracy Topsite Operators Handed Suspended Jail Sentences
– IMAGiNE BitTorrent Piracy Group Members Jailed
– BitTorrent Pirate Ordered to Pay $1.5 Million Damages For Sharing 10 Movies
– Link ‘Pirate’ Sentenced to Pay $13,000 to NBA, NFL, NHL, WWE and TNA

AdLand
– The trouble with Adsense – abusive porn ads on The Star news site [NSFW]

by trichordist

Mellencamp Character Assassination. The New Republic Bravely Stands Up For Corporations and Criminal Groups That Exploit Artists.

I’m sort of delighted by this. I mean I went to a very liberal college and there’s a certain kind elitist and dim knee jerk liberal I really dislike.  Dorm room revolutionaries who end up unwittingly doing the work of the man.  The kind that end up blogging for The New Republic.

Recently John Cougar Mellancamp wrote a piece in which he criticized the music business.  In particular he criticized them and his fellow artists  for not standing up to  large corporations like Google who have monetized illegal file-sharing by selling advertising against illegal download search results and also by providing advertising directly to file infringing sites.

The New Republic-always the class act-decided to respond with a character assassination piece.   They sent the remarkably ignorant Lydia DePillis (on twitter @lydiadepillis)  a 3 year real estate journalism veteran to “School” the 40 year music business veteran John  Mellencamp on the history and future of the music business.  It’s freaking hilarious.  Not only does this “professional” journalist not understand that  the main point is that Mellencamp is criticizing the music business for not protecting artists she wanders completely off topic and makes historical claims that have no basis in fact. Further she incorrectly disputes Mellencamp’s facts.

I’m just gonna give you one example.  The 3 year journalism veteran claims that search engines don’t make money off the searches for illegal downloads.   it took exactly 3.2 seconds for me to disprove this…

That is Google advertising against a set of infringing links.

Also she then dismisses and mocks Mellencamp’s correct claim that Google makes plenty of money serving ads on sites that it knows are infringing.

Here is Google’s Doubleclick serving an ad for Jeep on the that same site http://www.dilandau.eu   A site that Google’s own transparency report ranks as the 24th most copyright infringing site in the world.  Isn’t knowingly providing money to an illegal enterprise a RICO predicate?

It is sad but not surprising to see The New Republic standing up for the right of giant corporations and criminal groups to make money by exploiting artists songs.  The New Republic has totally lost it’s way.  They are now for the big corporations and against the little guy.

If The New Republic has any journalistic integrity left it  needs to correct the falsehoods in this article.  Further they should apologize to Mellencamp for the nasty tone of this article.  I’m sure they won’t but it’s worth a try.   Maybe tweeting at the author will work better @lydiadepillis .

by Dr. David C Lowery

Untruth in Advertising: Pandora’s Misleading Plea To Listeners On Behalf Of The Internet Radio “Fairness” Act.

For those of you that have not been following closely.  The “Internet Fairness Rado Act” is a bill  that is being championed by Pandora Radio.  Pandora radio has been pushing it’s listeners to write their congressmen on behalf of Pandora and in support of this bill.

But Pandora has not honestly explained the bill to their listeners.  They portray the bill as a fix to “discrimination” that internet radio suffers in comparison to traditional broadcasters.  This is simply not true. In addition there are all kinds of nasty things  in this bill that don’t really have anything to do with Pandora.

Here’s how you know you aren’t being told the whole story: The bill is also backed by Clear Channel and other traditional broadcasters.  This is not poor little Pandora vs the other big broadcasters.  They are on the same side. It’s big media vs the artists.   Feel duped?  Write Pandora. Click Here.

So for a little bit of fun we have decided to make an honest and fair version of the Pandora’s plea on behalf of the Orwellian named Internet Radio Fairness Act.

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

From the Pandora website

Their text is in black.  Our  more “truthy” text is in red.

INTERNET RADIO FAIRNESS ACT

An important piece of legislation has been introduced in Congress to help end the long-standing discrimination against internet radio fire the copyright royalty board judges.  These judges have made rulings that Pandora did not like in  the past.  This bill also muzzles any group that acts on behalf of  “rightsholders” (artists) by threatening prosecution under The Sherman act for “impeding” any direct licensing between broadcasters and record labels.  Direct licensing deals  often allow record labels to take artists performance royalties and apply it to un-recouped balances. As it stands now these royalties must be  paid directly to artists.  This effectively muzzles artists,songwriters and their unions. This bill infringes free speech!   We’re asking that you contact your representative today to urge them to NOT support the Internet Radio Fairness Act.

This bipartisan bill will  NOT end royalty rate discrimination against internet radio and bring greater fairness to our industry. Because such discrimination does not exist.  It may however keep Pandora’s stock price high while insiders sell  millions of dollars of shares amonth. Today, the discrimination disinformation is extraordinary. In 2011, Pandora paid over 50% of revenues in performance royalties, while SiriusXM paid less than 10%.  But comparing shares of revenue is extremely misleading.

This is because

1) Pandora chooses to play one commercial an hour whereas Sirius plays approximately 13.

 2) Sirius relies on subscription (lots of revenue) while Pandora relies more on advertising (much less revenue)

3) Sirius airs a lot of non music programming.  

Internet radio brings millions of listeners back to music, plays the songs of tens of thousands of promising working artists, enabling them to build their audience while receiving fair compensation. That’s why we want to pay artists 85% less. We would like artists to be unfairly compensated so we can profit more. 

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

If you are a pandora listener,  and you received this very misleading communication from Pandora and you now feel duped?  Write Pandora and ask them some hard questions.  Ask them why they failed to mention the bill fires the copyright  judges.  Ask them why they failed to mention  the Sherman Act is in the bill?  Ask them why they failed to mention they want to muzzle artists groups during direct licensing negotiations? Ask them why they never mentioned that Clear Channel is also behind this bill.  Write them  Click here.

You can also write the congressmen and senators who introduced this bill:

Representatives Jason Chaffetz (R-UT) and Jared Polis (D-CO) along with Senator Ron Wyden (D-OR).

by Dr. David C Lowery

Techdirt Is A Never Ending “Dumb Off”

A long time ago my good friend Dan Vickrey of the Counting Crows  explained to me the concept of  a Dumb Off.   Essentially this is what you call an argument between two people  that actually agree.  Generally this is because one or both  parties insists that the other person is saying something that they are not.  In the music world these Dumb Offs usually occur in the van or on the bus after the show when people are really really drunk.

In the internet world  they occur (with  alarming frequency) on Techdirt.

Most of you are not be familiar with Techdirt.com.  Allow me to explain.   This is an obscure blog that is run by He-who-was-named-on-the-Google-Shill-List (Mike Masnick)and his Canadian sidekick Barnacle Boy – I mean Leigh Beadon.   We at The Trichordist mostly know about this blog cause every time they write about us we get a barely perceptible  extra dozen views.    They generally write minitrues that benefit Google/Oceania  when argued in the broader much more popular  tech blogs. The reason you’ve never heard of Techdirt is cause this is the place where they try out these arguments  before they turn them over to the thinner, better looking and more professional  bloggers.  Bloggers that likely went to Harvard or Yale, not Cornell.

Last week I heard Techdirt ran a story claiming I was wrong about my claim that Copyright is in Human Rights treaties.  I was curious since they (once again) were rebutting something I never said so I decided maybe I should read this article.  It took a while. I fell asleep three times  and it was only after an injection of cheap Guatemalan adrenalin that I managed to finish it.

In yet another attempt to discredit us, Barnacle Boy- I mean the unsuccessful  Canadian hip hop artist Leigh Beadon falsely and knowingly claims I say copyright is in human rights treaties.  To bolster his case he links to an article that I didn’t write and says nothing of the kind. But these kind of real world facts have never stopped the Google policy id– oops  I mean Techdirt  from writing stuff like this before. What the linked article does say  and what I often say is: Artists’ Rights (not copyright) are enshrined in Human Rights treaties. These rights are then expressed on the national level in copyright laws.

Whoops, your bad.

Looks like we are agreeing on this one point.   Thus I declare this a  Dumb Off.  In my band you get a $250 dollar fine for participation in any Dumb Off.  Pay  it to the tour manager.

Now normally we’d ask for a correction but we’re not exactly sure who to ask? See we are not entirely sure that Masnick  and Beadon actually exist.  Reading Techdirt one might be forgiven for assuming Masnick and Beadon are simply mildly sophisticated AI from some half assed Google AI project tucked between Google’s space program boondoggle and the driverless car boondoggle.   Certainly Masnick’s attempts at humor AND Leigh’s rhyming style fall into the unfortunate  “Uncanny Valley” between human and robotic. Thus lending credence to our theory.

So we ask:  Are they programmed to make corrections?  Or do we just write the AI programmers and ask for the correction? This is uncharted territory for us.

So however much we have enjoyed seeing Techdirt bravely taking a stand against human rights treaties and morality itself,  and however excited we are about using this against them later,  we do have to correct the record.  You just can’t make shit up.  Even on the internet.  Here is the main blog that The  Trichordist published on Artists Rights and Human Rights.    This was written by Chris Castle.

The Human Rights of Artists

…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 rights as intellectual property rights are arguably subordinate to human rights and actually implement at the national level the human rights recognized as transcending international and national intellectual property laws…

Ergo a “Dumb Off”.  I think the judges will agree. $250.

by Dr. David C Lowery

Austin readers of Trichordist please save the date! David will be speaking in Austin tomorrow night, see this post for details!

Four Nights of Music Rights

Can you believe that we made it to Meeting 4!!

October 30: Music Clearances for Tech Startups and Artist Rights: Do Good Business and Protect Your Work

Guest Speaker:  David Lowery, of Cracker and Camper Van Beethoven and editor of The Trichordist, on artist rights.

Band Basics Mini-Topic: Bank accounts, bookkeeping, taxes, health issues and insurance coverage. Staying Healthy:  SIMS Foundation and HAAM Guest Speaker: Jennifer Stowe, Director of Services, Health Alliance for Austin Musicians

Please register at this link.

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by thetrichordist

Weekly Recap Sunday October 28, 2012

Grab the coffee!

Recent Posts:
* Is Tim Westergren (Pandora) Really Just A Beard For Clear Channel?
* “We’re Gonna Boycott Your Band” And Other Empty Freehadist Threats- 6 Months Of Campaigning Against Piracy.
* Pittsburg Post-Gazette TV Critic Instructs Readers In How To Get Pirated Copies Of DVD’s…and Fund Terrorism?
* UPDATE : Pittsburg Post-Gazette Published Piracy Link
* Pandora Comes Out Of The Closet; Confirms Clear Channel and Pandora “More Than Just Friends’

From Around The Web…

COPYHYPE:
* Essential Reading of the Week as Compiled by Terry Hart at Copyhype.

HUFFINGTON POST:
* John Mellencamp Talks Internet Piracy

CNET:
* Commentary on John Mellencamp Talks Internet Piracy

BBC:
* More piracy sites faced with blocking as BPI contacts UK ISPs
“since the April court order, The Pirate Bay has lost three quarters of its visitors.”

SPIEGEL ONLINE:
* Voters Growing Disillusioned with Germany’s Pirate Party

THE CYNICAL MUSICIAN:
* Got Change?

TORRENT FREAK:
* TV Shack Admin Richard O’Dwyer “Almost Certain” To Be Extradited To US
* Torrent Site Webhost Ordered to Pay “Piracy” Damages
* Pirate Bay Censored in Ireland After Mysterious Court Order (Updated)

DIGITAL MUSIC NEWS:
* Taylor Swift’s Label: Streaming “Doesn’t Make Sense to a Small Record Company…”
* It Was 2012. And Streaming Hadn’t Yet Gone Mainstream…

HYPEBOT:
* Metallica Prepping First Independent Release

MUSIC TECH POLICY:
* Friends Don’t Let Friends Get IRFAd: Five Simple Facts About the “Internet Radio Fairness Act”
* Google and Clear Channel Send Their Shills Out for IRFA Lobby Fest
* Constitutional Opportunism Continues with IRFA: Copyright Royalty Judges are Properly Appointed

by trichordist

Pandora Comes Out Of The Closet; Confirms Clear Channel and Pandora “More Than Just Friends’

Editor’s note:  The Internet Radio “Fairness” Coalition Launched yesterday and as we predicted this is just old line radio broadcasters (including Clear Channel) cross-dressing as Internet Radio Broadcasters in attempt to trick public into supporting this bad bill. 

Hey music  business journalists.  Hear that?  It’s the wake the fuck up alarm.  And it’s telling you that The Trichordist was right all along: Pandora is simply bearding for Clear Channel. It says so right here.

This is not about making rates “fair” for Pandora. Pandora already has fair rates, it’s not musicians problem they don’t want to sell more advertising. Pandora plays 1 minute of advertising per hour compared to satellites 13 minutes an hour.

If this bill were really about Pandora getting fair rates why the fuck would  both Pandora and Clear Channel  be supporting this bill?  Do you really think Clear Channel wants to help Pandora steal more audience share from them?  No of course not.    That’s why, by every measure (including wordcount) ,90% of this bill is serious special interest bullshit. Things like:

*Fires Current Copyright Judges

*Mandates what new judges can consider as “evidence”.

*Judges can’t consider previous rulings.  Or as we prefer to call it “the Orwellian He who controls the past controls the future clause.”

*Eliminates requirements judges have experience in copyright or economics.

* Stands the anti-monopoly Sherman Act on it’s head by using it to limit free speech  of performing rights organizations, industry associations, artists guilds even unions.

This bill is so shitty it may achieve the impossible: Bipartisan consensus.

Conservatives hate it cause it’s crony capitalism.  Silicon valley asking the US government to fix their business model.  Most real businesses outside  profitless-innovation-land  (Silicon Valley) negotiate with their suppliers instead of running to the Nanny State to fix their business model.   It’s 2012 Silicon Valley, grow up!

Liberals hate it cause it’s Agency Capture.  These large corporations couldn’t get their way with  the CRB so now they are trying to dismantle the board and remake it in their image.

We ask Tim Westergren to come clean. Quit pretending this fight is about his “cool” internet radio broadcaster being treated unfairly by “uncool” corporate broadcasters like Clear Channel.  You guys are on the same side!  No more bullshit.

The Internet Radio Fairness website was registered way back in June 2012. This has been planned for a while.   “Tim you go first, then we’ll launch this site later”  The contacts are all in Richardson TX. Pandora is not based in Texas.. which of these members of the coalition are based in Texas?.. .hmm.

by Dr. David C Lowery