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Zoë Keating vs YouTube: The End of an Artist’s Right to Choose Where Their Music Appears on The Internet.

This is a call to action folks.

Many of you may already be aware of this blog post from  Zoë Keating detailing the new terms of the Google/YouTube “Music Key” service.  YouTube’s “communications manager” Matt McLernon has followed the Spotify approach and attacked Zoë Keating’s story as “patently false” although it looks like Google is not exactly backing up their “communications manager“.

I’m pretty sure that Google is not truthful about their conversation with Zoë–you know Google’s lying when their lips are moving–if for no other reason than I believe Zoë’s notes of her conversation with Google are accurate.  Not to mention that the description of the Music Key deal points from Zoë’s notes shows Google tying the YouTube and Music Key deals together in pretty much the same way as the Music Key deal that Google threatened indie labels with last year.

But I’m not sure if the mainstream press understands the consequences of the way Google has tied together the aggressive and anti-competitive terms of service for Music Key with YouTube.

Here’s how Zoë Keating describes these new terms for Music Key:

“1) All of my catalog must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a 3rd party uploads with my info in the description [i.e., user generated] will be automatically included in the music service, too [i.e, Google’s Music Key streaming service]. 

2) All songs will be set to “montetize”, meaning there will be ads on them [and the artist has no choice in the matter].

3) I will be required to release new music on Youtube at the same time I release it anywhere else. So no more releasing to my core fans first on Bandcamp and then on iTunes.

4) All my catalog must be uploaded at high resolution, according to Google’s standard which is currently 320 kbps.

5) The contract lasts for 5 years.”

Why is this so terrible?

1)  YouTube allows certain artists and labels with special YouTube accounts to have access to its ContentID system.  ContentID tracks user generated content and allows artists to monetize or block that content in an automated way.  While YouTube creates a whack a mole problem by indiscriminately allowing user generated content to be posted on YouTube, ContentID provides a very imperfect solution to the problem that YouTube created.

This is important because the new terms that are being forced on artists like Zoë ties access to the Content ID system to participation in the new Music Key service.  Artists who refuse to participate in the new Music Key service would lose the ability to “monetize” (i.e. earn revenue) from the use of their songs on YouTube.  Further, artists who reject the Music Key deal would no longer be able to block unauthorized uploads of their music on YouTube–unless the artists track down each upload and send a separate DMCA notice.

What Zoe was told is pretty much exactly what the indie labels were told last year according to Rich Bengloff of A2IM:

Our members have been informed that if they do not sign up to these revised terms, YouTube has given notice to them that YouTube will remove/block our members’ and their artists’ musical repertoire from the entire YouTube service, not just the new audio music streaming service. As YouTube is one of the leading music outlets the effect on our members on the promotion and monetization of their artists will be severe as the premium videos our members create will be blocked and the User Generated Content videos created by consumers using our members artists’ music will cease to be monetized via advertising. Our members will then be forced to engage in the “whack-a-mole” process of getting these non-monetized videos off of YouTube, so as not to detract attention from services that are paying our Independent members, as was not anticipated when Congress enacted the DMCA in 1998.

In other words by saying “no” to Music Key, YouTube will still feature user generated videos on their service AND you won’t get any money.  Think about it. This is like saying “no” to a record deal but results in the label having your songs forever and paying you nothing!   YouTube is EVIL.

2) Because the new terms dictate that ALL your music must be available on YouTube as soon as you release it somewhere else,  there are no more exclusives! Your music cannot appear on the Internet anywhere unless it’s also on YouTube.   Why?  Because YouTube thinks they can use its monopoly position to enforce this tying deal against independent artists.

+++++++++++

On Cracker’s last album Berkeley to Bakersfield, we were able to do interesting cross promotions with our album precisely because we could offer exclusives to various services in different windows.   For instance, we gave Rolling Stone the exclusive rights to stream a song for one week.  In exchange, we were featured on the front page of Rolling Stone Country.  We also cut a deal with Amazon Prime to stream our entire album exclusively for one week in advance of the record release.  In exchange, our album received  favorable promotion and placement  across the entire Amazon service.  Both of these exclusives were key parts of the strategy to promote and sell our new album.   The YouTube Music Key service undermines this exclusivity to block us from exploiting these windows on our next album.

While it’s tempting to see Zoë’s experience as just another way that streaming services are screwing artists, notice that we haven’t even talked about the horrendously low royalty that YouTube pays.  That’s a complaint for another day.

Today, the issue is different.  Google is imposing dangerous anti-competitive moves on artists to screw over the artist’s fans and Google’s competitors.   This move will reduce competition and give artists and consumers less choice.

I believe that this is a dangerous precedent and should be examined by the Federal Trade Commission.  I urge you to write the FTC and ask them to look into this matter.  I understand that you can reach the chair of the FTC at this email address:  hstevenson@ftc.gov

Here’s what I’m writing:

Chairwoman Edith Ramirez and Director Bureau of Competition Deborah L. Feinstein
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580

Dear Chairwoman Ramirez and Director Feinstein:

I’m writing to call your attention to Google’s anticompetitive business practices described by cellist and independent artist Zoë Keating in her viral blog post What Should I Do About Youtube? that has been reported in The Guardian, Die Zeit, Online, Hypebot, Gizmodo, Forbes, Digital Music News and many other news channels.

Google is using its monopoly market power to force independent artists to grant terms to Google’s “Music Key” service by tying the Music Key to its YouTube video service.  As I’m sure you know, a substantial number of videos on YouTube are music videos and YouTube is the largest video search platform in the world.  By forcing terms onto independent artists, I believe that many artists are being duped into agreeing to terms for the Music Key service that grotesquely favor Google without understanding the implications.

I understand that Google is conducting a whisper campaign with journalists in an attempt to discredit Zoë Keating as was documented in Digital Music News, because she merely questioned the fairness of Google’s terms.

As I understand it, the key anticompetitive terms that Google is attempting to tie to its YouTube service are:

1.  Those artists who fail to submit to Google’s oppressive terms for Music Key will have their produced videos removed from YouTube;

2.  If artists agree to submit to the Music Key terms, Google requires that they give up the valuable property right to exclusively window their releases on different platforms because Google requires that all releases be made simultaneously on YouTube and Music Key with any other service;

3.  All of the artist’s catalog must be set to “monetize” which means that Google can sell advertising against all of the videos whether the artist wants it or not;

4.  If the artist does not submit to Google’s Music Key terms, then user generated videos of the artist’s work will be allowed to play on YouTube while the artist’s produced videos will be blocked from YouTube; and

5.  Artists who do not submit to Google’s terms for MusicKey will be prohibited from using YouTube’s ContentID system so will be forced to rely on the hopelessly outdated DMCA notice and takedown system rather than the automated take down available through ContentID.

Independent artists have no way to take on anticompetitive behavior by Google in the courts.  We rely on the government to force companies like Google to play fair.  I urge you to look into this matter immediately as every day more artists are being duped into signing these unfair deals with no more choice than our fans have to negotiate Google’s onerous privacy policy.

Zoë Keating’s experience is emblematic of all of us and I implore you to listen to her voice.

Thank you.

David Lowery

 

 

Artist Rights Leaders: Taylor Swift

0202

 

After the Charlie Hebdo tragedy, we thought we should start recognizing and praising those who stand up for artist rights.  We will also identify those who oppose artist rights and tell you why we think they are villains.  Not all of these people will be famous and you may not recognize some of their names, but that’s kind of the point.  We also want to emphasize that we’re not comparing anyone to anyone else, we’re just appreciating people for what they do and who they are–on both sides.

When we look back on the last year, there’s probably no one who did more for artist rights than Taylor Swift.  She really did not need to take on these issues, she could easily have sat back and let the money roll in.

And yet she did.  She put her career on the line and challenged the definitive “new boss” digital business–Spotify.  She challenged them in a very straightforward way by simply saying no.  Taylor had a lot to lose, and she went above and beyond to stand up to the “new boss.”

Spotify’s Daniel Ek revealed himself and did his best to play the “Lars card”–he talked down to her and attacked her.  Not as badly as the calculated and well-financed humiliation of Metallica by Napster’s litigation PR team, but a strain of it.  Can you imagine Steve Jobs doing that?  No way.  But that’s OK, we finally got the evidence on who this guy Ek really is and what his company really stands for.  Same old same old.

Taylor also showed that you don’t need YouTube, either–and she turned her team loose to present herself on YouTube the way she wanted, not the way YouTube wanted to force her to be presented.

She challenged The Man 2.0 by simply being who she was and exercising her rights as an artist–the very rights that the “new boss” constantly tries to take away from us.  It’s really simple:  The new boss needs hits, and hits don’t need the new boss.

And Taylor Swift showed us that artists can be strong and classy and successful, all at the same time.  She reminded us that it’s OK to take care of our business the way each of us want.  And she said it in the Wall Street Journal!

Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for.

 

The Return of Orphan Works: Trojan Horse: Orphan Works and the War on Authors by Brad Holland, Part 2

Artists have taken note of the recent legislative activity in the European Union regarding “orphan works”.  The European Union defines these works as “works like books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other rightholders are not known or cannot be located or contacted to obtain copyright permissions. Orphan works are part of the collections held by European libraries that might remain untouched without common rules to make their digitisation and online display legally possible.”

Of course, these libraries–the real ones, like the British Museum, not the Google Books Project–have a legitimate interest in digitizing their holdings and making them available online.  However, just as we saw with the Google Books project, Big Tech uses orphan works as a dodge (note that the lobbyist for the “Library Copyright Alliance” also is the lobbyist for the Computer & Communication Industry Association and the Net Coalition–and has been going around the country bashing collecting societies who want payments from his clients.  What’s common to all these things?  Google.

We are expecting another push at so-called “orphan works” legislation in the U.S. Congress during the upcoming legislative session because the U.S. Copyright Office is soliciting comments in a Notice of Inquiry proceeding that closes February 4, 2013 (in a few weeks).

We take a dim view of the “orphan works” theory–it seems to be yet another way of undermining copyright through a back-door safe harbor. If the last effort at “orphan works” legislation was any guide, it will another excuse for copyright infringement–if the infringer doesn’t quite qualify for a “fair use” defense, then they will say that their use of the infringed work is an “orphan” because they tried really, really hard to find the copyright owner, but couldn’t quite seem to find them. We think that “orphan works” puts the fox squarely in the henhouse, and is another clear example of the law creating another moral hazard to the detriment of artists.

We have a lot of readers in the music business, and people in the music business often think that “orphan works” don’t affect them–we have all these databases after all. That places an awful lot of trust in the infringer. Remember–Google specifically asked the Copyright Office to consider users of “millions” of orphan works and the outside counsel for Google seems to be parking the orphanworks.com domain on the EFF’s servers. Still want to be so trusting? What about Google getting 3 million DMCA notices a week for search alone suggests that artists should trust the system? Keep this thought in mind as you read the article: If orphan works represent a market failure, how can you have a market failure without a market, and how can you have a market without enforceable property rights?

We are pleased to be able to serialize an excellent article about the history of the “orphan works” movement in the U.S. written by the distinguished illustrator, Brad Holland. We encourage readers to make common cause with the illustrators and photographers who will likely be most harmed by this specious legislation backed by Google the last two times it appeared in the Congress. The article first appeared in the Journal of Biocommunication in 2010 and is used by permission of the author.

If you missed Part 1 of this important article, you can read it here along with Brad’s bio.

Part 2: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland

Claims Without Evidence

While academics, college professors, and students may have submitted anecdotes to the Copyright Office study, the weightiest contributions appear to have come from big Internet concerns whose business models depend on providing free or cheap access to other people’s intellectual property. These groups invariably submitted statements claiming that creative works once published have virtually no commercial value. A typical example is the joint statement submitted by NetCoalition.com, whose members “include Bloomberg, CNET, Google and Yahoo, as well as a number of smaller state and local ISP associations.” The coalition congratulated the Copyright Office for identifying “a significant issue that requires expeditious resolution.” Then it stated:

“The vast majority of copyrighted works have little or no economic value soon after their creation or publication.”9

This blatant assertion was offered with no evidence of any kind, nor was it even propped up by argument. Indeed, the letter went further (again without evidence) to state that “[a]uthors of such works typically are willing to permit others to reproduce, distribute, perform, or display their works at no charge because the authors still benefit in tangible and intangible ways from their uses.” (Italics added. ) 10

It should be self-evident that such unsupported conclusions are self-serving. Many Internet content providers are dependent on business practices that have invited major lawsuits for infringement. In March 2007, for example, Google filed a mandatory 10-Q Filing with the US Securities and Exchange Commission in which it acknowledged “copyright claims filed against us [by copyright owners] alleging that features of certain of our products and services, including Google Web Search, Google News, Google Video, Google Image Search, Google Book Search and YouTube, infringe their rights.” Google admitted that “[a]dverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements or orders preventing us from offering certain functionalities, and may also result in a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business.” [Italics added.] 11

Having acknowledged their exposure to costly infringement litigation, one can easily understand why such companies might seek to denigrate the value of the work they’ve been charged with infringing. What’s not clear, however, is why the US Copyright Office should urge Congress to undermine the intellectual property rights of citizens based on such claims.

Google Sees Value in Orphan Works

Despite having joined its NetCoalition partners in asserting that orphaned works “have little or no economic value,” Google sang a different tune at the Orphan Works Roundtables on July 26, 2005 in Washington. There, the company’s attorney, Alexander MacGillivray, made it clear that his firm actually believed the work under consideration was worthless only when it still belonged to the people who created it:

“The thing that I would encourage the Copyright Office to consider is not just the very, very small scale – the one user who wants to make use of the [orphaned] work – but also the very, very large scale – and talking in the millions of works.” 12

“Google strongly believes that these orphan works are both worthwhile, useful, and extremely valuable. In fact, I think that’s why most of us are here. We do think there is a lot of value in these works.” 13

“[W]e expect that [Google’s] use of these orphan works will likely be in the 1 million works range…we know that many of them will be in the public domain, that most of their authors won’t care. But there are a few that really will care and they will come forward [to ask for payment] and it will be extremely inefficient for us [to have to pay them].” (All italics added.)14

Four months later, in November 2005, at the same time as the Copyright Office was concluding its Orphan Works study and preparing its final report to Congress, Google made a surprising $3 million contribution to the Library of Congress for its “World Digital Library” project. The Library of Congress oversees Copyright Office activities. While the Library of Congress acknowledged that the World Digital Library project would be supported by public and private partnerships, it appears that Google was the project’s first, largest, and perhaps only private sector contributor. 15

Turning a Legal Fiction into Reality

It’s not a compelling argument for a large global corporation to say it should be allowed to infringe your intellectual property based on its own assurance that your property is worthless. But while Internet powerhouses such as Google can only make such assertions, a more devious strategy has emerged from the small but dedicated core of copyright “reform” attorneys smitten by the romance of mass digitization. Their idea was not simply to claim that small rightsholders’ work is worthless, but to propose a legal metamorphosis that would make it so.

Of particular interest is the 106 page paper “Reform(alizing) Copyright” submitted to the Copyright Office by the advocacy group Creative Commons. In it, attorney Christopher Sprigman proposed a scheme that would effectively roll back the 1976 Copyright Act by requiring artists, writers and others to mark and register every single work they create or find the work deemed (page 491) “commercially valueless”: 16

“[T]his Article proposes a system of formalities that, although nominally voluntary, are de facto mandatory for any rightsholder whose work may have commercial value. Non-compliance with the newstyle formalities would subject works to a perpetual and irrevocable ‘default license’ with royalties set at a very low level, thus effectively moving works into the public domain.” (Emphasis added.) (Pages 490-491)17

The logic behind this proposal is as cynical as it is clearly stated. Since authors, particularly visual artists, would lack the time and resources to mark and register every drawing, painting, photograph or sketch they create, then track and renew these tens of thousands of registrations over a period of decades, billions of copyrighted works by working authors would inevitably fall through the cracks and into the public domain. This would happen not because the authors have actually abandoned their works (which would be the legal presumption), but merely because the law had swamped them with paperwork. In effect, this proposal would turn a legal fiction – that “most copyrighted work has little or no value soon after its creation or publication” – into reality.

The problem with this proposal is that any government that required rightsholders to register their work as a condition of its protection would violate international copyright law. Article 5.2 of the Berne Convention is explicit: “The enjoyment and the exercise of these rights shall not be subject to any formality.”18

So, the question for advocates of registration became how to skirt the letter of the law in pursuit of its violation. The answer turned out to be simple: amend existing copyright law to “limit” the remedies for infringement wherever an infringer can successfully assert an orphan works defense; then promise rights holders that they can sill protect their exposed work, but only by registering it with for-profit databases to be created in the private sector. Then let the marketplace take care of the rest. Once infringers came to rely on these databases as one-stop shopping centers for rights clearance, any work not available from the databases would become a de facto orphan. This would avoid an explicit violation of international copyright law because it would not legally require you to register your work. It would merely redefine your work as an orphan if you didn’t.

According to the official account, this proposal was the result of the Copyright Office’s year-long study. The facts, however, don’t bear this out.

“The Legislative Blueprint”

The essential language of the Orphan Works legislation was written at least a year before the release of the 2006 Copyright Office Report. It was drafted, ostensibly by law students, as a classroom project at the Glushko-Samuelson Intellectual Property Law Clinic under the guidance of its Director, Peter Jaszi and was submitted to the Copyright Office March 24, 2005. In a few simple words, the Glushko-Samuelson Copyright Clearance Initiative (CCI) spelled out the operative feature of the Copyright Office recommendations that were released nearly one year later. From the CCI, Section III (page 5):

“Remedies and Liability “Under no circumstances will Sec. 504 statutory damages, attorneys fees, damages based on the user’s profits or injunctive relief relating to the challenged use be available against a qualified user.

•  If infringement by a qualified user is proved, damages would be limited to the lesser of •  Actual damages or •  An award of $100 per work used, up to a maximum of $500 for any group of works claimed by a single owner and subject to a single use.”19

This “limitation on remedies” was rationalized (page 6) as necessary to guarantee “certainty” to good faith infringers. Supposedly this would protect the “innocent” infringer from ruinous fees or penalties in the event the owner of an infringed orphan “came forward.” It was said this would encourage worthy users to make older works of cultural or historical significance available to the public. If so, it was never explained why the bill would throw the doors wide open to infringement by commercial users. Since the emasculation of penalties would apply throughout the entire world of publishing, it would create a haystack of “legal” infringements in which bad faith infringers could hide like needles.

To pass such a law would pull the only teeth that current copyright law possesses. There’s no other mechanism for copyright enforcement; no Copyright Bureau of Investigation, no Copyright Office Police Force. All copyright owners are responsible for policing their own copyrights, and the existing penalties for infringement are the only mechanism the law gives us to do it with. Provide infringers with certainty and you create massive uncertainty in commercial markets as well as in the lives of all small copyright owners.

This was one of the key objections to the Glushko-Samuelson proposal that medical illustrator Cynthia Turner and I raised on May 9, 2005, when we submitted a critique of the Glushko-Samuelson proposal to the Copyright Office study. 20We faulted it for granting benefits to scholars, consumers, the public – and infringers – at the expense of authors’ rights:

“The Glushko-Samuelson plan proposes a ‘minimalist approach’ to amending Title 17 USC. But what it actually portends is an expansion of fair use by weakening authors’ rights. It would empower users to annul copyrights based on the user’s own definition of due diligence.

“Glushko-Samuelson defines an orphan work (p. 3) ‘as a work for which the copyright owner cannot be reasonably located.’ But it allows the would-be user to define what constitutes a reasonable effort, then it defines ‘reasonable effort’ as ‘a flexible definition that applies to a variety of situations . . .’ It adds: ‘In the rare instances where there is disagreement about whether a search was adequate, the courts are open to make the required determination.”21

“But while sending authors to court to seek relief from abuses,” we concluded (page 5) that the plan “would restrict an author’s ability to seek redress.” In effect this would undermine copyright protections for all but large corporations, which in most cases would have the resources to staff up and register work, then hire sophisticated search technology to police and protect the copyrights they acquire. 22

The full text of our critique can be read on the Copyright Office website, where it’s been sitting [since 2005]. These excerpts should be enough to demonstrate that it reads like an analysis of the final Orphan Works bill; yet we wrote it 10 months before the Copyright Office report was released and more than a year before the House Judiciary Subcommittee unveiled its first legislative draft. Clearly we could not have condemned the Orphan Works plan a year before it was written if the plan itself had not been written sometime before we condemned it.

To be continued..

10.  ibid

11.  United States Securities and Exchange Commission Form 10-Q/A, Amendment No. 1, Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended March 31, 2007, Page 36  http://investor.google.com/documents/20070331_10-Q.html

12.  United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 21   http://www.copyright.gov/orphan/transcript/0726LOC.PDF

15.  United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 119 http://www.copyright.gov/orphan/transcript/0726LOC.PDF

13. United States Copyright Office Transcript of Orphan Works Roundtable, July 26, 2005, Page 166 http://www.copyright.gov/orphan/transcript/0726LOC.PDF

14. “Library of Congress Launches Effort to Create World Digital Library,” News From the Library of Congress, November 22, 2005 http://www.loc.gov/today/pr/2005/05-250.html

15. Christopher Sprigman, “Reform(alizing) Copyright,” Stanford Law Review Vol. 57: 485 November 2004, Comment to Copyright Office Orphan Works Study, Page 491 http://www.copyright.gov/orphan/comments/OW0643-STM-CreativeCommons.pdf

16. Christopher Sprigman, “Reform(alizing) Copyright,” Stanford Law Review Vol. 57: 485 November 2004, Pages 490-491, Comment to Copyright Office Orphan Works Study http://www.copyright.gov/orphan/comments/OW0643-STM-CreativeCommons.pdf

17. Article 5.2 Berne Convention for the Protection of Literary and Artistic Works http://www.law.cornell.edu/treaties/berne/5.html

18. Glushko-Samuelson Intellectual Property Law Clinic Response to Notice of Inquiry on the Issue of “Orphan Works,” Submitted to the United States Copyright Office, Library of Congress March 24, 2005, Page 5 http://www.copyright.gov/orphan/comments/OW0595-Glushko-Samuelson.pdf

19. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005 http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf

20. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005, Page 3http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf

21. Brad Holland and Cynthia Turner, Reply Comment to Copyright Office Orphan Works Study (70FR3739) May 9, 2005, Page 5 http://www.copyright.gov/orphan/comments/reply/OWR0139-IPA.pdf

None Dare Call it Theft

Is copyright infringement theft?

It’s a good question to ask on the internet if you want to spark another round of an endless discussion.

Opponents of the “infringement = theft” argument will marshal an impressive array of arguments.

There are the semantic arguments: theft has a settled meaning that doesn’t apply to infringement (ignoring centuries of usage to the contrary).

Then there are the legal arguments: you can’t sue someone for copyright infringement under theft laws. Leaving aside the fact that there is no single “theft” law — statutes different from state to state and country to country — this distinction only matters if you’re a prosecutor; doesn’t dictate how words can be used in common parlance. And I don’t believe anyone is seriously making the argument that the goal of calling infringement theft is to eventually bring infringement actions under theft laws.

In a recent New York Times article, author Stuart P. Green adds his own arguments to the debate. While generally more eloquent than what you normally find online, they are still not so convincing.

Green begins with his explanation of how we got here:

From its earliest days, the crime of theft has been understood to involve the misappropriation of things real and tangible. For Caveman Bob to “steal” from Caveman Joe meant that Bob had taken something of value from Joe — say, his favorite club — and that Joe, crucially, no longer had it. Everyone recognized, at least intuitively, that theft constituted what can loosely be defined as a zero-sum game: what Bob gained, Joe lost.

When Industrial Age Bob and Joe started inventing less tangible things, like electricity, stocks, bonds and licenses, however, things got more complicated. What Bob took, Joe, in some sense, still had. So the law adjusted in ad hoc and at times inconsistent ways. Specialized doctrines were developed to cover the misappropriation of services (like a ride on a train), semi-tangibles (like the gas for streetlights) and true intangibles (like business goodwill).

Green goes on to lay the blame on the current debate on, of all things, the 1962 Model Penal Code (?!?).

While superficially appealing, this story is an over-simplification (as any two paragraph summary of thousands of years of history can be). One could just as easily fashion a Green-esque history of property law to make the claim that taking someone’s pet is not theft.

After all, for thousands of years pets weren’t treated as property — it wasn’t until the early 20th century (much later than the appearance of copyright law) that the common law recognized taking cats and dogs as larceny. And today, you can find those who will argue that pets should not be considered property. It shouldn’t be hard to find scholars who will claim that pets should be “free as the air to common use” — and it’s not hard to imagine a site like “PetDirt.com” pointing to stories about Michael Vick to prove that it’s harmful to allow people to claim ownership over animals.

But it’s not as simple as that. You can easily find exceptions to this narrative throughout history, and property law is always evolving.

Next, Green makes it sound like the description of copyright infringement as theft is a recent phenomenon:

With intangible assets like information, patents and copyrighted material playing an increasingly important role in the economy, lawyers and lobbyists for the movie and music industries, and their allies in Congress and at the Justice Department, sought to push the concept of theft beyond the basic principle of zero sum-ness.

This claim has a certain appeal to the conspiratorially-minded. But it’s simply wrong.

People have used theft language to describe copyright infringement long before now. In fact, referring to unauthorized copying as theft has occurred before the term “copyright” appeared in the English language. Centuries before, even.

For example, Martin Luther placed a “Warning to Printers” on the inside of his 1541 German translation of the Bible. The warning read:

SO feret der Geitz zu / vnd thut vnsern Buchdrückern diese schalckheit vnd büberey / Das andere flugs balde hernach drücken / Vnd also der unsern Erbeit vnd Vnkost berauben zu jrem Gewin / Welchs eine rechte grosse öffentliche Reuberey ist / die Gott auch wol straffen wird

Avarice now strikes / and plays this knavish trick on our printers whereby others are instantly reprinting [our translation] / and are thus depriving us of our work and expenses to their profit, / which is a downright public robbery / and will surely be punished by God

Later writers would use the term “piracy” to describe unauthorized reprinting and plagiarism, such as Elizabethan pamphleteer Thomas Dekker, who encouraged his readers in 1603 to “Banish these Word-pirates, (you sacred mistresses of learning) into the gulfe of Barbarisme.”

It would not be until 1710 that the first copyright law would be passed — England’s Statute of Anne (though interestingly, the term “copyright” does not appear in the law and would not enter the language until the 1730s.) Since then, it’s not hard to find a wide variety of sources describing infringement as theft.

Some examples: An 1858 article in the Journal of the Society of Arts says, “All the legislation which has taken place upon the subject of Copyright in England has proceeded upon the just theory that an author or artist has a property in his work. Where, therefore, a Copyright work is literally copied, or copied with merely colourable alterations, it seems difficult to distinguish the moral guilt of such a theft from that of picking a pocket, and consequently that such an act of piracy ought to be punishable as a criminal offence.”

This dictionary from 1861 defines “piracy” as “infringement of the law of copyright; literary theft.”

The editors of the Round Table, a weekly U.S. journal, petitioned Congress in 1866 for an international copyright law, saying “this license for literary theft (for it is nothing less than theft) is beginning to affect our own writers and publishers. American works are daily reprinted in England, and at a less cost than the original publications.”

Legal treatises routinely made use of theft language, such as this 1886 treatise from R.R. Bowker: “After the invention of printing, it became evident that new methods of procedure must be devised to enforce common law rights. Copyright became therefore the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished.”

A letter printed in an issue of the Literary World from 1899 made the case that “An author’s brain work is as exclusively his own stock in trade as is any other work of any other artisan of any kind. Stealing brain work is as much a theft as stealing handiwork. Any person of ordinary intelligence can understand this fact. The copyright of all such work is the author’s own. If he chooses to delegate rights to reporters, well and good. He may do this as he does to his publishers, by royalty or by sale, according to mutually approved terms. But any right assumed otherwise than by permission of the author is downright robbery, according to all high standards of morality.”

These are only a few examples. Since the early days of copyright, infringement was, “frequently equated with theft.”

Indeed, not only has infringement routinely been described as theft, some have argued that it is worse than stealing tangible property.

German philosopher Johann Gottlieb Fichte wrote in 1793:

[I]n consideration of the fact that anyone is a thief who usurps the use of others’ property for his own profit, then the reprinter is without doubt a thief. If, furthermore, a theft is the more heinous when it involves things which by their very nature cannot be kept under lock and key, then the reprinter’s theft is one of the most heinous, since it involves something which necessarily lies open to the public, like air and ether. And if, finally, a theft is all the more heinous the nobler the objects it is perpetrated on, then it is the most heinous of all when it involves things that are creations of the mind.

And an 1840 book, An Historical Sketch of the Law of Copyright, noted:

For the printing a work, the sole right to which belonged to another, was looked on as little better than theft, and punished accordingly. Indeed, it was said, that such conduct was worse than to enter a neighbour’s house and steal his goods: for negligence might be imputed to him for permitting the thief to enter: but in the case of piracy of Copyright, it was stealing a thing confided to the public honour.

+++++++

The ancient Romans defined larceny as “Contrectatio rei alienae, invito domino cujus illa fuit” — “a diversion of the thing of another, contrary to the will of him, to whom it belongs.” Copyright gives creators an exclusive right to copy, perform or display, and make derivative works of their works, and copyright infringement is an appropriation of these things against the will of the copyright holder. For as long as copyright has been recognized by law, authors, philosophers, legal theorists and judges, and the general public have described infringement using theft language. The arguments that it is wrong to do so ignore logic and history.

What’s more, these arguments ignore the harm copyright theft causes the general public. Just last month, a Phoenix Center for Advanced Legal and Economic Public Policy Studies report demonstrated how “The existence of IP theft—even when assuming theft is costless to affect, produces consumption goods of quality fully equal to those consumers pay for, and does not suppress labor supplied—results in a reduction in social welfare” and “reduction in the rates of theft of intellectual property would benefit society (producers and consumers).”

So why do these arguments continue? At a basic level, they generally stem from this idea: it is wrong to call infringement theft because the word “theft” has moral overtones. But this begs the question that infringement is never an immoral act. Clearly that’s not the case.

Of course, saying that it’s sometimes appropriate to call copyright infringement theft does not mean we’re required to describe every act of infringement as theft. Someone who writes a fan-fic of a popular book, posted online for free, may end up with a work that a jury might find infringes the original, but I doubt few people would consider this theft — some authors even encourage such acts. There are plenty of other examples of online behavior involving non-commercial copying or transformative uses that, if put in front of a court, would be considered infringement but nevertheless would find few willing to describe as theft. So it’s worth being careful when using theft language.

However, that doesn’t mean it’s never correct to call infringement theft. When a service like Grooveshark, for example, doesn’t “pay the artists, the labels and/or the songwriters for the use of the music that’s making them tons of money”, it’s fitting to say they “knowingly and willingly use a legal loophole to steal from artists and songwriters.” For services like these, which seek to profit off creators’ labor without permission, it is very helpful to create clever semantic arguments that make their behavior seem not as bad as it is.

###

[ THE 101 ] [NEW BOSS / OLD BOSS ] [ SPOTIFY ] [GROOVESHARK ] [ LARRY LESSIG ]
[ JOHN PERRY BARLOW ] [ HUMAN RIGHTS OF ARTISTS ] [ INFRINGEMENT IS THEFT ]
[ THE SKY IS RISING : MAGIC BEAVER EDITION ] [SF GATE BLUNDERS PIRACY FACTS ]
[ WHY ARENT MORE MUSICIANS WORKING ] [ ARTISTS FOR AN ETHICAL INTERNET ]

Musicians POV: Occupy Artist Rights – Full Post

By Chris Whitten

(Copyright in the author, used by permission, all rights reserved)

I’m an independent, self-employed musician.  It’s a risky business. You’re only as good as your last record or gig. There are few long term contracts, no sick leave, no holiday entitlements and nothing in the way of protection against bullying in the workplace, sexual discrimination, or unfair dismissal. Yes, it’s largely a labour of love, with some degree of personal satisfaction, and if you’re one of the lucky ones, some financial reward.

To co-opt the slogan of the recent Occupy movement, we are the 99%.  The 99% of professional musicians who have more in common with ordinary workers than the rock stars portrayed by the media, frittering away their millions like 24-hour party people.

For the last couple of years I’ve been following the piracy debate, especially online. Contrary to what is often claimed, I feel the ‘free music’ movement has succeeded in shouting down the view from actual content creators. Much of the commentary is dominated by technology journalists, or tech industry watchers, but relatively little has been contributed by creative people working in the music industry. Many musicians, especially the young, up-and-coming ones, have stayed out of the debate, leaving music fans not much option but to accept one or two myths and misrepresentations as fact.

The political musician is a thing of the past, it seems. Maybe recent generations of artists are rebelling against their parents who went to Woodstock or Live Aid? What is sure is that musicians understand they need to be liked in order to survive. You build a fanbase, which in turn provides the all-important bums on seats needed to fund the next tour or album recording. So the last thing you want to do is alienate that fanbase. Heck, who wants to be the next Lars Ulrich? Still getting a public kicking eleven years after Metallica triumphed over Napster. As with many things in life, short term gain is popular while the long game is not. Young musicians who ask fans to pay for their music, sometimes even daring to critisise music pirates, are often derided around the blogs and internet music communities.

Let’s be clear about this: in the relationship between musician and music consumer, the musician has no power. Currently the consumer has all the power. Even if they could admit to themselves that non-payment is wrong, who’s going to readily give up all that free music, movies and television with virtually no chance of ever being caught?

The reader comments section of any blog discussing the issue of music piracy makes for depressing reading – at least for professional musicians. The often repeated threat of “price music fairly or we’ll just take it” is made by people who aren’t prepared to work for free themselves, and couldn’t make ends meet if their weekly paypacket fluctuated wildly dependent on how much their employer felt like paying them each week.

The modern mantra is ‘information is free’. Well we pay for our internet service, don’t we? And music isn’t really information, it’s the product of someone working hard to entertain us. In a capitalist system you don’t get to demand entertainment for free. Someone provides a service, and the consumer decides whether they are willing to buy it or not. After the death of capitalism, when we no longer have to pay for our electricity, we can talk about free music.

Another myth is that the music pirate is somehow righting a wrong visited on artists by the major record labels in past decades. Sadly, musicians survive at least in part by selling records. So what we have is an apparent double punishment. You’ve been ripped off by the labels, and now it’s the music fan’s turn to rip you off. Worse still, with the short careers of many artists, we’re supposedly righting some financial wrong done to The Saints by ripping off Wolfmother.

Music artists are grown up enough to look after themselves. As far back as the late 1970’s with the explosion of independent labels and DIY recording, artists have had plenty of acceptable avenues to distribute their work without relying on corporate labels. The reality which rather sinks this pirate ship is the amount of independent and self-released music that is pirated. Do music pirates download music they want to hear, whatever the source, or do they target major label artists only? I personally know people who have written and recorded their own music, paying for the whole thing themselves, only to find it uploaded against their wishes by someone they don’t know for everyone else to share freely.

I have no doubt there are a few idealists, anti-capitalists and ex-hippies who genuinely believe that by file-sharing they are bringing down the corporate music industry. However, the biggest casualties caught in the crossfire are average musicians. Even if they try to do the right thing by the public, eschewing the major label system, pricing their music fairly, giving some music away, they are pirated as readily as the commercial pop manufactured for mass consumption. When Radiohead offered their ‘pay whatever you want’ download of ‘In Rainbows’ there is evidence many still downloaded the album from popular pirate sites. The clear motive then for most is to obtain any music, any time, without having to pay for it.

So let’s briefly look at a few other, shall we say ‘misunderstandings’….

• The new economy for music is in live performance.

Actually, that was the old economy. You earned a little income from selling records, you might also make a bit from playing live, put it all together and most musicians could earn enough to keep playing. The pirate economy removes income from recordings. So in fact, there is no new way of making money, we’ve just taken one income source away.  In addition, the recording is a product in of itself. It isn’t a promotional tool. After Sgt Peppers was released, The Beatles didn’t tour, and yet we can all still enjoy the music today. I was too young to see Jimi Hendrix in concert, but I have always enjoyed listening to Electric Ladyland. In a country like Australia, you often can’t support artists via their shows without literally going the extra mile. If you live in Darwin, even Albury Wadonga, the only way to see most bands is to travel. International acts just don’t play outside the major Metropolitan centres. The easier way to support artist’s output is to buy the record. Records and shows are two equal products with equal creative value. Recordings capture a moment in time. In recordings from ‘Kind Of Blue’ (Miles Davis) to ‘Smells Like Teen Spirit’ (Nirvana) it’s a moment of magic you can’t replicate in live performance now some of the players are gone. In the end, does anyone suggest actors appear in movies to promote theatre?

• You should play music for love not money.

Yes, but instruments, music lessons and rehearsal spaces don’t come free. And if you want to attain some level of excellence you need to invest a lot of time and money in your music. Besides, why are there all these rules for musicians that don’t apply to anyone else? I’m sure Sam Stosur would play tennis just for grins, but we apparently have no problem with appearance fees and prize money. It’s obvious Tony Abbott would LOVE to be Prime Minister. When he finally achieves that goal should we take away the $260,000 a year he’s enjoyed as opposition leader, pay him nothing and recommend he “have fun”?

If you add the suggestion to play for the love of music, to the suggestion musicians play more shows, the cracks in these theories start to appear. Putting on a show doesn’t come cheap, there are rehearsals, travelling expenses, equipment costs. So are musicians to fund these costs through professional musicianship, or accept the dreaded day job? If like others in society your ambition is to rent or own a home, start a family and provide for your kids, you’ll likely need to get a regular job. The bank manager doesn’t understand “I work only for love”.

The average holiday entitlement in regular employment is four weeks per annum. That hardly meets the demands of modern touring. So the post piracy band would only tour for one month each year, and every band member would have to co-ordinate the same month off. Then work the remaining eleven months without a break. When do they find time to record the album, or shoot the video?

When I toured globally with Dire Straits in 1991, we spent six weeks in Australia alone. You can forget seeing most international acts grace these shores ever again if those acts have to balance the needs of regular employment with their careers in music.

Finally we come to a couple of ‘dog ate my homework’ type excuses.

• Not Every Illegal Download Is a Lost Sale.

Duh…. yeah! That’s right, but it’s amazing how regularly this is brought up in the debate as if it’s the killer argument, the Achilles heel of the professional musician. Never mind the high probability that many illegal downloads represent many lost sales. It’s really not believable to claim all pirated music is binned without being listened to, or if it is listened to and appreciated, the downloader goes on to pay for it. Clearly a reasonable amount of music is pirated because the pirate wants to enjoy the music but isn’t prepared to pay for it. Isn’t prepared to actually support the persons creating the music.

More than three years into a GFC, with Europe facing financial meltdown, 40% youth unemployment in Spain, rock music’s biggest market the USA looking down the barrel of a double dip recession, and most Aussie musicians driving in the slow lane of a three speed economy, you bet every single lost sale counts.

• I Can’t Afford Music

I can’t afford to eat at Aria. Life’s a beeeyach. Obtaining music isn’t a right, it’s one of life’s pleasures. And while we’re talking about life’s pleasures, a take away coffee costs $3 to $4, and lasts as long as it takes to drink. A song costs $2.99 from iTunes, and provides entertainment for years. With the popularity of fast broadband and large data plans, it’s quite obvious many of the same people who claim they can’t afford music, somehow can afford a computer, a Blackberry or iPhone and a $60 a month ADSL2 plan. I think what they mean to say is “I can’t afford music because my entertainment priorities lie elsewhere….. and music is available free”

Music piracy is a wholly negative culture. It takes out, but puts nothing back.                                  When I was a teenager we had a similar view of the mainstream music industry. It was tired, complacent and wasn’t making the records we wanted to hear. Towards the end of the 1970’s like-minded people started forming their own bands, they wrote their own music, promoted their own gigs, made their own records and started their own indie labels. It really did blow the establishment apart…. at least for a few years. Why is it that action for positive change has been replaced by simply robbing music from music makers? I can’t say I understand the excuse that pirates download music because most music is rubbish. Surely some young person somewhere is thinking they’d rather make some amazing new music of their own and make a name for themself, rather than spend all night trawling through torrent sites downloading gigs of garbage.

The final pirate promise is that music will always be there.

Well you can’t really argue with that, but what kind of music will it be? Just as talented school athletes play a variety of sports and eventually decide to concentrate on one, young creative often draw, write and play an instrument to a reasonably high level. Given a choice, teenagers will usually opt to pursue a career where they feel valued, have a decent chance of success, and be rewarded for their hard work. Things are pretty gloomy right now in the music scene, but if we could restore income from record sales, I think we could reward our best and brightest to make great music in the future. With the industry in the doldrums or worse than its current state, the most talented creative minds will choose other avenues to express themselves, avenues that give them some hope of a decent living, put a roof over their head, and a pat on the back from respected peers for a job well done.

That would be the music fan’s loss.

Downloading music for free is a short term gain. The long term damage it’s doing to the broader music community and the message that sends to the grass roots, where the musicians of tomorrow emerge from, should be understood by anyone who enjoys new and exciting music. We need creative risk taking and innovation in music, or else millions of teenagers would still be listening to Doris Day and dancing The Twist. The history of pop music shows us creative risk taking and innovation is carried out in the bedrooms of Manchester, England, the garages of Seattle, the back room of a pub in Melbourne, not in the spotlight glare of a season of X Factor. The mainstream is supported by television and advertising, mainstream artists are offered guest spots on CSI: Miami, or a signature fragrance as part of a cosmetic sponsorship. These aren’t avenues of income a young band from Wagga Wagga can enjoy. So we need to financially support the musicians at the margin, for they are the future of good music.

The final ironic twist is I believe free music is a brief abberration. Everyone but the pirates understand that quality content comes at a price. The internet giants are the new record companies. While music sales have been hammered by illegal downloading, web companies have seized the opportunity to throw desperate musicians a bone in the form of some small income from iTunes, Spotify and the forthcoming ‘cloud’. Most of these services are embryonic, but once they gain some popularity it’ll be in the tech industry’s interests to finally stamp out easily available free music, while encouraging people to access music through paid for services like Spotify and iCloud.

The only difference is that many tech companies have demonstrated they are more ruthless than any record label ever was. Unlike record labels, tech companies aren’t interested in music specifically, the nurturing and development of new artists. They are primarily interested in making money through hardware sales like iPads, or online services like Google and Facebook. They want to supply the most popular, most desirable content, at the lowest price as a way to attract and hold on to loyal customers. Mark Zuckerberg’s recent high profile relaunch of Facebook was centred around the (legal) sharing of music and movies.

It’s in the interest of music fans to financially support the next generation of musicians. The internet corporations demonstrably aren’t, and musicians being normal people, they’ll drift away from music as the daily grind of making innovative music with no reward and no encouragement takesits toll.

Less edgy innovation, but more mainstream commercial pop – that’s the road we are on and that’s bad for music fans.

Rather than online anarchy, a mass exploitation by the many of the few, we the 99% of music consumers need to directly support the 1% of adventurous, young music makers, or we can’t really complain when we end up paying. But we won’t just be paying for our entertainment. We will also be paying in terms of the talent that goes unheard and the groundbreaking music that wont be made. And the ultimate irony is that this time it’s a computer company – not a specialist music company – determining what music we get.

###

[ THE 101 ] [NEW BOSS / OLD BOSS ] [ SPOTIFY ] [GROOVESHARK ] [ LARRY LESSIG ]
[ JOHN PERRY BARLOW ] [ HUMAN RIGHTS OF ARTISTS ] [ INFRINGEMENT IS THEFT ]
[ THE SKY IS RISING : MAGIC BEAVER EDITION ] [SF GATE BLUNDERS PIRACY FACTS ]
[ WHY ARENT MORE MUSICIANS WORKING ] [ ARTISTS FOR AN ETHICAL INTERNET ]

The Musicians POV: Occupy Artist Rights, Part 3–The attack of the homework eating dogs

[Part 3 of a 3-part post “Occupy Artist Rights”]

By Chris Whitten

Finally we come to a couple of ‘dog ate my homework’ type excuses.

• Not Every Illegal Download Is a Lost Sale.

Duh…. yeah! That’s right, but it’s amazing how regularly this is brought up in the debate as if it’s the killer argument, the Achilles heel of the professional musician. Never mind the high probability that many illegal downloads represent many lost sales. It’s really not believable to claim all pirated music is binned without being listened to, or if it is listened to and appreciated, the downloader goes on to pay for it. Clearly a reasonable amount of music is pirated because the pirate wants to enjoy the music but isn’t prepared to pay for it. Isn’t prepared to actually support the persons creating the music.

More than three years into a GFC, with Europe facing financial meltdown, 40% youth unemployment in Spain, rock music’s biggest market the USA looking down the barrel of a double dip recession, and most Aussie musicians driving in the slow lane of a three speed economy, you bet every single lost sale counts.

• I Can’t Afford Music

I can’t afford to eat at Aria. Life’s a beeeyach. Obtaining music isn’t a right, it’s one of life’s pleasures. And while we’re talking about life’s pleasures, a take away coffee costs $3 to $4, and lasts as long as it takes to drink. A song costs $2.99 from iTunes, and provides entertainment for years. With the popularity of fast broadband and large data plans, it’s quite obvious many of the same people who claim they can’t afford music, somehow can afford a computer, a Blackberry or iPhone and a $60 a month ADSL2 plan. I think what they mean to say is “I can’t afford music because my entertainment priorities lie elsewhere….. and music is available free”

Music piracy is a wholly negative culture. It takes out, but puts nothing back.  When I was a teenager we had a similar view of the mainstream music industry. It was tired, complacent and wasn’t making the records we wanted to hear. Towards the end of the 1970’s like-minded people started forming their own bands, they wrote their own music, promoted their own gigs, made their own records and started their own indie labels. It really did blow the establishment apart…. at least for a few years. Why is it that action for positive change has been replaced by simply robbing music from music makers? I can’t say I understand the excuse that pirates download music because most music is rubbish. Surely some young person somewhere is thinking they’d rather make some amazing new music of their own and make a name for themself, rather than spend all night trawling through torrent sites downloading gigs of garbage.

The final pirate promise is that music will always be there.

Well you can’t really argue with that, but what kind of music will it be? Just as talented school athletes play a variety of sports and eventually decide to concentrate on one, young creative often draw, write and play an instrument to a reasonably high level. Given a choice, teenagers will usually opt to pursue a career where they feel valued, have a decent chance of success, and be rewarded for their hard work. Things are pretty gloomy right now in the music scene, but if we could restore income from record sales, I think we could reward our best and brightest to make great music in the future. With the industry in the doldrums or worse than its current state, the most talented creative minds will choose other avenues to express themselves, avenues that give them some hope of a decent living, put a roof over their head, and a pat on the back from respected peers for a job well done.

That would be the music fan’s loss.

Downloading music for free is a short term gain. The long term damage it’s doing to the broader music community and the message that sends to the grass roots, where the musicians of tomorrow emerge from, should be understood by anyone who enjoys new and exciting music. We need creative risk taking and innovation in music, or else millions of teenagers would still be listening to Doris Day and dancing The Twist. The history of pop music shows us creative risk taking and innovation is carried out in the bedrooms of Manchester, England, the garages of Seattle, the back room of a pub in Melbourne, not in the spotlight glare of a season of X Factor. The mainstream is supported by television and advertising, mainstream artists are offered guest spots on CSI: Miami, or a signature fragrance as part of a cosmetic sponsorship. These aren’t avenues of income a young band from Wagga Wagga can enjoy. So we need to financially support the musicians at the margin, for they are the future of good music.

The final ironic twist is I believe free music is a brief abberration. Everyone but the pirates understand that quality content comes at a price. The internet giants are the new record companies. While music sales have been hammered by illegal downloading, web companies have seized the opportunity to throw desperate musicians a bone in the form of some small income from iTunes, Spotify and the forthcoming ‘cloud’. Most of these services are embryonic, but once they gain some popularity it’ll be in the tech industry’s interests to finally stamp out easily available free music, while encouraging people to access music through paid for services like Spotify and iCloud.

The only difference is that many tech companies have demonstrated they are more ruthless than any record label ever was. Unlike record labels, tech companies aren’t interested in music specifically, the nurturing and development of new artists. They are primarily interested in making money through hardware sales like iPads, or online services like Google and Facebook. They want to supply the most popular, most desirable content, at the lowest price as a way to attract and hold on to loyal customers. Mark Zuckerberg’s recent high profile relaunch of Facebook was centred around the (legal) sharing of music and movies.

It’s in the interest of music fans to financially support the next generation of musicians. The internet corporations demonstrably aren’t, and musicians being normal people, they’ll drift away from music as the daily grind of making innovative music with no reward and no encouragement takesits toll.

Less edgy innovation, but more mainstream commercial pop – that’s the road we are on and that’s bad for music fans.

Rather than online anarchy, a mass exploitation by the many of the few, we the 99% of music consumers need to directly support the 1% of adventurous, young music makers, or we can’t really complain when we end up paying. But we won’t just be paying for our entertainment. We will also be paying in terms of the talent that goes unheard and the groundbreaking music that wont be made. And the ultimate irony is that this time it’s a computer company – not a specialist music company – determining what music we get.

_______________________

See Part 1: “The New Boss is Worse Than the Old Boss

See Part 2: “A Few Misunderstandings

See complete post: “Occupy Artist Rights (Complete)”

The Musican’s POV: Occupy Artist Rights, Part 2–a few misunderstandings

[Part 2 of a 3 part post–“Occupy Artist Rights”]

By Chris Whitten

So let’s briefly look at a few other, shall we say ‘misunderstandings’….

• The new economy for music is in live performance.

Actually, that was the old economy. You earned a little income from selling records, you might also make a bit from playing live, put it all together and most musicians could earn enough to keep playing. The pirate economy removes income from recordings. So in fact, there is no new way of making money, we’ve just taken one income source away.  In addition, the recording is a product in of itself. It isn’t a promotional tool. After Sgt Peppers was released, The Beatles didn’t tour, and yet we can all still enjoy the music today. I was too young to see Jimi Hendrix in concert, but I have always enjoyed listening to Electric Ladyland. In a country like Australia, you often can’t support artists via their shows without literally going the extra mile. If you live in Darwin, even Albury Wadonga, the only way to see most bands is to travel. International acts just don’t play outside the major Metropolitan centres. The easier way to support artist’s output is to buy the record. Records and shows are two equal products with equal creative value. Recordings capture a moment in time. In recordings from ‘Kind Of Blue’ (Miles Davis) to ‘Smells Like Teen Spirit’ (Nirvana) it’s a moment of magic you can’t replicate in live performance now some of the players are gone. In the end, does anyone suggest actors appear in movies to promote theatre?

• You should play music for love not money.

Yes, but instruments, music lessons and rehearsal spaces don’t come free. And if you want to attain some level of excellence you need to invest a lot of time and money in your music. Besides, why are there all these rules for musicians that don’t apply to anyone else? I’m sure Sam Stosur would play tennis just for grins, but we apparently have no problem with appearance fees and prize money. It’s obvious Tony Abbott would LOVE to be Prime Minister. When he finally achieves that goal should we take away the $260,000 a year he’s enjoyed as opposition leader, pay him nothing and recommend he “have fun”?

If you add the suggestion to play for the love of music, to the suggestion musicians play more shows, the cracks in these theories start to appear. Putting on a show doesn’t come cheap, there are rehearsals, travelling expenses, equipment costs. So are musicians to fund these costs through professional musicianship, or accept the dreaded day job? If like others in society your ambition is to rent or own a home, start a family and provide for your kids, you’ll likely need to get a regular job. The bank manager doesn’t understand “I work only for love”.

The average holiday entitlement in regular employment is four weeks per annum. That hardly meets the demands of modern touring. So the post piracy band would only tour for one month each year, and every band member would have to co-ordinate the same month off. Then work the remaining eleven months without a break. When do they find time to record the album, or shoot the video?

When I toured globally with Dire Straits in 1991, we spent six weeks in Australia alone. You can forget seeing most international acts grace these shores ever again if those acts have to balance the needs of regular employment with their careers in music.

_________________

See Part 1 “Occupy Artist Rights

See Part 3 “The Attack of the Homework Eating Dogs

Artists Have Rights, Too

By Maia Davies of Ladies of the Canyon

(Copyright in the author, all rights reserved)

Music is my passion, but it’s my job too. I have poured everything I can offer into it. Through successes and mistakes, I continue learning and working toward my goals, driven by a passion for songwriting, performing and delving deeper into the work of my life.

I am an artist by choice, just as others choose to follow other careers. As creative workers, our rights include the right to be compensated for the goods and services distributed.

Unfortunately, in today’s digital world, this right has somehow been lost when it comes to what I create. if we can agree that all workers should be compensated for their work, how is it that many people can so casually overlook their responsibility to pay for the artist’s work when they download illegally?

Illegal downloading has been a catastrophe for me and for many of my peers. The list of famous Canadian musicians and songwriters whose work fans know and cherish, but who now cannot make a living from their passion, would come as a shock. Illegal downloading has stripped us from our main source of income, and therefore, our livelihood.

In a free market economy, consumers can choose whether or not to purchase a product. But they don’t have the right to take products without permission, and pay nothing in return. I am expected to pay for the goods and services I consume. That’s why I see downloading as nothing less than theft.

I see it as the responsibility of the music industry to inform and educate, but we also need laws to protect our rights – not only to be able to continue creating, but also because it is only fair.

As a Canadian, I come from a great national cultural heritage – one blessed with the likes of Neil Young, Joni Mitchell and Bruce Cockburn. Is this not something worthy of protection and continued investment, to support what makes our country great?

There is lots of amazing new talent in Canada today, alive with the promise of a bright artistic future, capable of stirring Canadians and the world. Let us look to our most recent example of that, my fellow Montrealers Arcade Fire’s win on the global stage at this year’s Grammys. These artists will reward all of us if given the opportunity. At the very least, they deserve fair treatment under law.

Everyone can understand the importance of music and how it makes all of our lives better. Music makes us laugh, and cry, it encourages us, calms and inspires us.

And yet, if we miss the opportunity to ensure that composers and performers are able to make a decent living without fearing uncompensated use of their work, it will compel some of our finest creators to abandon that path, and we will all be the poorer for it: not just Canadians, but people all across the world that listen to our collective creative output of songs.