In the aftermath of the Google Books debacle, we are starting to hear noises that Google will back a new orphan works bill in this Congress. There are some commentators—truly misguided in my view—who are calling for Congress to bring back the failed legislation from 2008 known as the “Shawn Bentley Orphan Works Act”. (The late Shawn Bentley was a tech industry lobbyist and former Senate Judiciary staff counsel.) Let’s review that legislation in light of what we now know. (For a more detailed account, see Unhand That…
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.
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.
David Post has written a sort of legal alternate reality historicalfictionIn 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.
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.
We’ve talked about piracy, but now let’s change that conversation to talk about the “New Boss” licensed services. One of the problems for artists selling their music, films or books in the legitimate digital space is getting a fair deal from the New Boss distributors. And that is exactly what they are–digital distribution requires artists and labels to outsource what are essentially manufacturing and distribution functions.
That’s fine if it creates efficiencies, but what it also has done is create a huge dodge for the “New Boss” who tries to say that any problems that artists have with them is a problem with the “Old Boss” who made the deal the artists don’t like.
That gloss doesn’t work for independent artists, though, because there is no “Old Boss” to point the finger at. Even if there were, the Old Boss is usually a union signatory under a collective bargaining agreement that allows a negotiation team to air grievances directly with the labels. That doesn’t happen with the New Boss. There’s a reason why Senator Rockefeller said that the big tech companies (pretty clearly meaning you know who) were worse than the monopolist Standard Oil (which was run by John D. Rockefeller, Senator Rockefeller’s great grandfather).
As far as we know, there is no New Boss who is a union signatory. In fact, the old joke goes that tech companies know so little about unions that they think collective bargaining is venture capitalists setting a target’s valuation. For example–YouTube refuses to be audited by independent publishers. That would never happen at a record company–they might take an edge in other ways, but if they ever denied an audit right there would be a revolt. In fact, the New York Attorney General sued major labels over “unclaimed” royalties and California has laws about transparency in record company statements thanks to Don Henley. The sheer indifference and arrogance from the New Boss companies is startling and leads to one answer–they do it because they can get away with it. And nothing says Internet Freedom like getting away with it, right?
Nowhere is this indifference to artists more apparent than in subscription services. (We have some thoughts on a la carte download services, too, but that’s a subject for another day.)
We tried to think of five things that Spotify (and their competitors in the subscription business) could do today to level the playing field for independent artists. These are things that wouldn’t cost them much, but that would be very helpful to artists making less than say $2500 a year from the service. Leave a comment if you have other ideas or if you disagree. (And you’re welcome, Spotify, Rhapsody, Napster, Google this is free market research for you.)
1. Remember, nobody ever negotiated royalty terms with independent artists, it was just presented as take it or leave it. Make the royalty rate more fair and transparent in two ways: First, stop deducting out of pocket costs for advertising sales commissions (and all other advertising-related costs) off the top from independent artists. Spotify and the others shoud eat those costs out of their revenue share rather than making independent artists bear 50% of these costs. Second, pay artists a per-stream minimum across all your products.
3. Promise to pay each independent artist on the service a fixed amount of money as a bonus if Spotify goes public or is sold. $5,000 each sounds good to us, and if Spotify has a $1 billion valuation now…. They will certainly be able to afford it if their valuation is high enough for a firm commitment underwriting (aka IPO). This promise will not cost Spotify anything right now and won’t slow down its growth–which seems to be the most important thing to Daniel Ek. Spotify would only pay it at the liquidity event, i.e., when they have the money. Remember–sharing is caring.
4. Let independent artists sign up for Spotify for free. Either give the artists access to upload their music, or cover the costs of forcing artists to use an aggregator by grossing up their royalty split. Please don’t charge us to make you rich.
5. Contribute something to music education foundations, like Instruments A Comin’ (Tipitina’s Foundation) or to a musicians health care organization like the Health Alliance for Austin Musicians. Would this really be so hard? Start with 1% of revenue, even 1/2% of revenues. And please don’t set up your own charity so you can have parties and give yourselves awards every year. We already have those. Save the money on the back patting and give it to people who are already doing the good works. It would make a big difference in the lives of the next generation of artists and to families. Good PR for Spotify, too, you could use some.
It feels good to do some good. If that’s not enough reason, think of it as preserving your supply chain.
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!
The Spotify hype machine is in full effect promoting mix and match stats that don’t seem to correlate into any better cohesive reporting on actual transparency for payments, Digital Music News reports; http://digitalmusicnews.com/permalink/2012/120630spotify
This editorial from Torrent Freak illustrates the complete disconnect between artists and those who exploit them. No, you are not pro-artist because you say you are, you are pro-artist when you respect the artists choices whether you agree with them or not… http://torrentfreak.com/music-piracy-is-not-a-problem-its-an-excuse-120630/
If you like open source software, or Creative Commons licensing, then you like copyright.
Open source software relies on copyright to force all future
development to remain open. Without copyright the orginal
creator wouldn’t be able to stop people closing his code.
Creative Commons licenses let us decode what rights to give
away. For example, we can allow people to use our work only if
they credit us, or only for non-commercial purposes.
Copyright gives us these choices. Without copyright, anyone
could use our work for anything, including selling weapons.
That’s a very good reason to like copyright.
Defend Copyright. It’s All We Have Left. COPYLIKE.ORG
[Chris Castle interviews Bob Ludwig, the legendary mastering engineer.]
Introduction
Mastering is the last and probably the least understood step in the audio recording process.
Mastering engineer Bob Ludwig is one of the true living legends of the music business. In addition to being a Grammy winning engineer, he has received many TEC Awards for excellence and was the first winner of the Les Paul Award from the Mix Foundation for setting the highest standards of excellence in the creative application of recording technology.
Bob is a classical musician by training, having obtained his bachelor’s and master’s degrees from the Eastman School of Music. Inspired by Phil Ramone, Bob ended up working with Phil at the legendary A&R Recording Studios in New York. After a few years at A&R Recording, Bob moved to Sterling Sound and then to Masterdisk as Chief Engineer. In 1993, Bob and his wife Gail built Gateway Mastering in Portland, Maine, a state-of-the-art record-mastering facility where he still masters records by top artists.
Chris Castle: Given how many people listen to music on portable digital players, do you find that producers are mixing for earbuds? Is it common to find an “iPod mix” that you master separately?
Bob Ludwig: No it isn’t. Dr. Floyd Toole (of Harman International, makers of JBL speakers) showed that averaging all the different consumer speakers (some bright, some with too much bass or midrange etc.) one ends up with a very flat curve which is empirical proof that mastering with an extremely accurate and flat playback system yields a product that sounds correct on more systems. Like speakers, earbuds run the gamut from the old stock Apple earbuds that sounded tinny and lacking warmth to top-of-the-line Shure earbuds that are extremely accurate, to “hip-hop” earbuds that are overly bass heavy. One must master to sound as good as possible on all systems.
Almost all pop mixes are mixed with the bass and kick drum panned to the center which is proper as many people will be listening on boom boxes which have limited power and having a powerful center channel bass available to both speakers is ideal. Very early recordings of the Rolling Stones and The Beatles (to name two groups) were totally intended for mono and were recorded on 2-channel or 3-channel tape decks solely for creating a mono-only mix. When stereo became popular these early multi-track tapes were re-purposed for stereo and the bass and kick drum were typically locked into either the right or left channel.
With earbuds and headphones this is very unnatural sounding and sometimes it is decided to filter the low bass into the center by mono-ing the signal somewhat. This sounds much better. This is definitely a decision based on current widespread use of earbuds, and it remains an important philosophical question when doing re-issues of old recordings with this problem.
Chris Castle: Can you explain how the “loudness” of a mix becomes a factor in mastering? Can you explain compression and how it affects you at the mastering stage?
Bob Ludwig: Compression uses a piece of hardware or software plug in which either enhances or most often limits the dynamic range of the music being fed into it. Compression is crucial to pop music. Live pop music is almost always performed at hearing damaging levels, way above the 85dBspl OSHA threshold for start of possible hearing loss. In order for this immense power to be even somewhat realistically reproduced on consumer systems the pop sound pipeline must be compressed so that musically the performance has the extra energy that the live performance had. For pop music, this translates as a very musical thing. (“The Loudness Wars” video illustrates.)
This problem starts from the fact that human beings, when hearing two examples of the exact same musical program but with one turned up only +0.5 or 1dB, almost all listeners who don’t know exactly what they are hearing choose the louder one as “sounding best.” Fair enough.
So through the years, the louder example is eclipsed by a yet louder example winning the hearts and minds of the artist, the engineer and the A&R person. At some point, the music is so loud and unnaturally compressed that the aural assault on the ear, while very impressively loud, has sucked the life out of the music and makes the listener subconsciously not want to hear the music again.
At an Audio Engineering Society workshop I was recently in about loudness, Susan Rogers from Berklee College talked about the hair cells in our ears that receive music and she pointed out that loud compressed music does not “change” as much as dynamic music and notes that “we habituate to a stimulus if it stops changing. Change ‘wakes up’ certain cells that have stopped firing. This is cognitively efficient and therefore automatic.” In other words, there are very physical reasons why too much compression turns off our music receptors. Every playback system ever manufactured comes with a playback level control. If one is listening to an album, one should be able to turn that control anywhere you want and the absolute level on the CD should not make a difference. Another place level on a CD does not make the difference one would think is on radio broadcast. It can be shown that in general, loud CDs sound worse and less powerful on commercial FM radio than a CD with a moderate level that lets the radio station compressors handle the loudness problem. Non-classical radio station compressors make soft things loud and loud things soft.
Two areas where producers get upset about not having enough level is the iTunes Shuffle, or even comparing songs on the iTunes software itself, and that moment at the radio station where the PD is going through the week’s new releases and deciding which two or three songs will be added to his playlist. Here, sometimes having a little extra level can make a lesser song seem a little more impressive, at least at first listen.
A great example of a contemporary recording that has full dynamic range is the Guns N’ Roses Chinese Democracy CD where Axl Rose wanted all the textures of the original mixes to come through and he got his wish! A good example of one of the loudest most distorted CDs is the Metallica Death Magnetic CD where apparently 10,000 fans signed a web petition to have the album remixed because they got to hear how good it sounded on “Guitar Hero” which did not have all the digital limiters the final CD mix had.
Chris Castle: I’m sure you don’t master with freeware, can you give an overview of the kind of technology you use?
Bob Ludwig: We have great state-of-the-art gear and we also have some classic gear like the 5 different sets of tape machine playback electronics we have to reproduce the client’s tape with the very best sounding playback for that particular recording. It makes a big difference.
We have Esoteric Audio Research tube amps, Aria Class-A solid state electronics, ATR Services tube amps, souped-up stock Class-A electronics and Studer tape machine electronics…they all sound different. We have all kinds of equalizers and compressors, but we often use the Manley Massive Passive Equalizer which is tubed as well as the George Massenburg solid state equalizer, My SPL (Sound Performance Laboratories) German console has 124-volt DC rails in the Class-A electronics making it probably some of the most advanced electronics known to man!
We run our entire studios off huge batteries so we create our own 60 Hz. AC, the power is as clean as you could imagine. Using bridged Cello Mark II Performance Amplifiers which are capable of outputting 4,000 Watts of power into my 790 lb. Eggelston Works “Ivy,” one can put one’s ear right up to the tweeter and you can hardly hear a peep with no signal fed to the speaker.
Chris Castle: Is there a top 3 “don’ts” that you have to fix in mastering?
Bob Ludwig:
1. The most common big criticism I have is not paying enough attention to the vocal. The vocal is everything to the success of a song. Make it loud enough to be able to hear the lyrics. The problem is, if the vocal level is too high, all the energy of the track disappears, if it is too low, you can’t understand what is being said. If you want to be able to hear every word and you are mixing it, be sure to have a friend who does NOT know the words come in and tell you what is being sung. Once you know the lyrics, you can mix them very low and still understand them, but everyone else might miss some important words. It is hard, but crucial to get the right level.
Always cover yourself by doing one or two extra mixes with the vocal raised +0.5dB and another +1dB. Some languages need extra vocal level as more nuances of the language can easily get lost. Louder vocals are usually found on country music mixes, French and Japanese mixes.
2. Vocal sibilance not contained is a problem. As in item “1”, some producers will make the vocal as bright as musically possible in order to have it be intelligible yet tucked into the track. Sometimes the vocal is simply too sibilant. These days where most big projects are being cut for vinyl it is even more important to control sibilance as it creates high amplitude, high frequency grooves that are beyond the ability of all but the best cartridges to reproduce and one gets a “spitting” sound on the sibilance. Controlling sibilance in the mix is by far the best place to do it as the de-esser will only affect the voice while de-essing during mastering necessitates compromising the brightness of the entire track.
3. A mix with a bright vocal and a dull drum sound is really a problem. The all important snare takes up a lot of spectrum and trying to brighten it with eq will make the bright vocal even brighter and quickly become unacceptable. It is a real trap that can only be helped by mastering from the TV track with a separate vocal a cappella track, something that most often is not an option.
Visit the Gateway Mastering site for more information on Bob and his team.
[The Trichordist says: A version of this interview post originally appeared in MusicTechPolicy and in the Huffington Post.]
The Trichordist 
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