Vocal artist rights advocate David Lowery brings a massive action against the largest streaming service.
Camper Van Beethoven and Cracker frontman David Lowery, retaining the law firm of Michelman & Robinson, LLP, has filed a class action lawsuit seeking at least $150 million in damages against Spotify, alleging it knowingly, willingly, and unlawfully reproduces and distributes copyrighted compositions without obtaining mechanical licenses.
lthough debates about how to protect copyright online might seem so 2010, they certainly haven’t abated. The current conversations aren’t as contentious as the SOPA skirmishes, but that doesn’t necessarily mean consensus. Current attempts to address piracy are taking place outside of Congress, and include efforts to establish “best practices” between stakeholders. From the recently-minted Copyright Alert System to voluntary agreements meant to curb unauthorized activity within ad networks and payment processors, new experiments in rights protection abound. What’s the thinking behind the various approaches? What does a “win” look like, and what are the parameters for oversight? How can artists get involved?
MMODERATOR
Casey Rae
Interim Exec Dir – Future of Music Coalition
Sherwin Siy
VP, Legal Affairs- Public Knowledge
Jill Lesser
Exec Dir- Center For Copyright Information
David Lowery
Musician/Internet Content Provider – Cracker
David Lowery of bands Cracker and Camper Van Beethoven thought the internet would become a vibrant new marketplace for creators. Instead, he says, the internet era is worse for artists than the infamously unfair record company system. Brooke talks to Lowery about what’s wrong and how to fix it.
we are blessed to have a society that produces both the Amanda Palmers and the John Irvings; and I don’t understand why anyone thinks we need to choose a system that would favor one over the other. Believe it or not, the one unifying principle that supports these two artists, as well as all others, is copyright.
The desire to see the Internet remain free and open does not mean, however, that we should countenance lawlessness. A balance must be struck between the needs of content creators and the advocates of a free and open Internet. The “rules of the road” are still to be written and, when they are, the need to protect U.S. generated intellectual property should be foremost in the minds of legislators.
The Internet and the world of e-commerce will not continue to grow and thrive either in an environment of overbearing regulation or in one which turns a blind eye to theft and other forms of lawlessness. Freedom and safety are complementary; the American people deserve both. The Internet must not become a haven for hackers and foreign criminals.
The new center will consolidate Microsoft’s digital crimes and Internet piracy units into one advanced operations center on its Redmond, Wash., campus. It will give the company one center to coordinate investigations with governments and law enforcement agencies. A staff of 30 there will work with 70 other Microsoft investigators world-wide to focus on malicious software crime, technology-facilitated child exploitation and piracy.
Not long ago, many hoped the Internet would emerge as a music fan’s Shangri-la, a utopian world where any track, no matter how obscure, was available for free, record labels were extinct and artists made a good living because their fans chose to reward them. Acts like Radiohead and Nine Inch Nails championed this brave new world.
This week, Brett Danaher and Michael Smith, working at the Initiative for Digital Entertainment Analytics (IDEA) at Carnegie-Mellon University, have released another study looking at this question. The study, Gone in 60 Seconds: The Impact of the Megaupload Shutdown on Movie Sales, found that digital movie revenues from online sales and rentals increased by 6-10% following the January 2012 shutdown of the popular cyberlocker site (Megaupload execs, including Kim Dotcom, are of course currently facing criminal charges in the U.S. for copyright infringement).
The bigger question is whether YouTube will be able to generate enough ad money for content makers to support the “premium” programming it has been trying to attract so it can compete with traditional TV.
“It’s hard, given YouTube’s low [revenue-sharing] numbers and lack of marketing infrastructure to make the unit economics for premium programming work,” says Steve Raymond, who runs Big Frame, a YouTube network/programmer that says it has generated 3.2 billion views.
For most of the last century, America’s cultural landscape—its fashion, art, music, design, entertainment—changed dramatically every 20 years or so. But these days, even as technological and scientific leaps have continued to revolutionize life, popular style has been stuck on repeat, consuming the past instead of creating the new.
Artists deserve to be compensated for their efforts, and so should the companies that take risks to promote and distribute their work. Stealing songs and movies to pass among friends or to sell in a black market robs the originators of their incomes.
Conspiratorial thinking – such as imagining media barons in secret meetings, perhaps involving the “MAFIAA” – abounds. In America, activists have created a Batman-inspired cat signal, to be beamed to other paranoiacs in distress, whenever The Man is suspected of spoiling their fun. Persecution fantasies abound.
The soundtrack for Blues Highway Blues isn’t meant to be played as you read; there are no in-text notes about tracks fading in or out. Instead, the soundtrack corresponds to events that unfold throughout an entire chapter, making listening a parallel experience, not a simultaneous one.
But this is only the first installment in the Crossroads series, with more on the way. The next installment, Rock Island Rock, will be out in June of this year. That novel will not have its own soundtrack but instead will include lyrics sheets in the appendix (how very Beck Song Reader of him, right?). For now Blues Highway Blues is available—for your eyes and ears.
I am sure the Wall Street Journal article will generate the predictable commentary about how the solution to online theft lies in developing new business models. Wolfe Video did just that, and the results do not bear out the claims that piracy is all about failure of imagination. Moreover, I have yet to hear anyone explain what is innovative or new about stealing the creative work of another and monetizing it through ad sales.
If you are like most artists, you feel overwhelmed by the alliance of Big Tech and Fortune 500 companies allied against us in the intricate network of brand sponsored piracy. (If you need more background on what “brand sponsored piracy” means, just look around on the Trichordist or on MusicTechPolicy and you’ll get the idea.) From Google search to Chilling Effects, some artists would like to know what they can do to fight back. Of course, if artists wanted to fight piracy full-time, they would be cops not artists. So we need to find ways to leverage your time more effectively and try to find everyday ways that artists can help themselves and each other to fight back.
You may not be aware of it, but clubs, tours and especially festivals or event programming take ads online. Sometimes these ads appear on pirate sites. Here’s an extreme example from the illegal lyric site, Lyrics007.com that rips off songwriters, in this case Adele:
Beyonce, Adele and the Super Bowl Exploited by Pepsi
Do I think that Beyonce knew that her name and likeness would be plastered all over illegal music sites? Of course not. Did the NFL know? Unlikely. Did Pepsi know?
Now that is a more difficult question. The problem that these big brands have is that someone always knows. Someone at their ad agency also definitely knows. They’ll give you a big song and dance about it’s a big system, millions of transactions, but it is simply not possible that no one knows, yet a brand the size of Pepsi–a company that has been a very good friend to the music business, by the way–spends millions on an advertising campaign without knowing where its ads are going?
Put Them On Notice
Thanks to David Lowery, Camper Van Beethoven and Cracker, artists have come up with an easy way to create some incentives for their touring partners to take responsibility for where the promoters advertise their shows. And this concept could fit in every artist agreement from an one-nighter agreement, to a recording agreement, to Beyonce’s Super Bowl promotion with Pepsi or any other event-driven advertising campaign.
The artist can tell them no.
With a simple contract clause that could go in the artist’s agreement (including in the tour rider), an artist can prohibit the artist’s work from being advertised on pirate sites. Violating this clause could put the promoter in breach–but the point isn’t to sue people. The point is to have a dialog, raise awareness and get people to be more careful. Offer promoters a competitive advantage to get the deals in the first place. If you want repeat business with an artist, don’t let the artist see ads show up on pirate sites.
So what’s a pirate site? Big Tech would like you to believe that it is only sites that have been adjudicated an infringer in a final, nonappealable judgement before the highest court in every country of the world.
That’s obviously bunk and designed to make you feel helpless because only Big Tech can afford that kind of litigation, so naturally that’s the bright and shiny object they want you to focus on.
Remember–you are talking about a private contract. Your private contract. How and where your show is marketed is a function of how much you trust your promoter to market your name…your brand…so it is absolutely reasonable for you to want to control how you are presented to your fans and to the general public when you permit someone else to make decisions about that marketing, just like you would decide that the headliner’s name came first in billing.
Meaning that if you are making a private contract, you are in control of your marketing (at least generally) and you can negotiate those terms. The list of sites you want to exclude–if any–is up to you, a subjective decision.
You could also decide that you want the promoter to be able to refer to an objective list, that is, a list determined by a third party who you both agree will reasonably set the standard. The USC-Annenberg Innovation Lab’s Transparency Report uses the Google Transparency List. This is a good list, but Google has some pretty large exclusions from that report. So the language that Camper and Cracker like also includes the US Trade Representatives Notorious Markets List, which is much shorter than the Google list, but uses US Government resources in its determination.
Suggested Contract Language
If you decide you want to go this route, the Camper/Cracker antipiracy clause covers three bases, which I think are probably good enough: The USTR List, the Google List, and whatever list the artist may come up with that isn’t on either of those lists. (The artist doesn’t have to give a list, but reserves the right to do so–the artist may also add back sites that USTR or Google would exclude.)
Here’s the language (“BUYER” usually refers to the talent buyer or promoter):
Obviously, this is not meant as legal advice and you should confirm with your own lawyers how this language might affect your rights under the particular agreement, but it should be a good starting place for any show agreement that is based on the American Federation of Musicians “One Nighter” agreement or the equivalent.This language could be included in a watermark on any pdf version of a show agreement, or placed in the artist’s rider.
Flow Down Language
In more complex situations, you may wish to consider adding it as a flow down provision in a promoter agreement that requires the promoter to include the language in any show agreements. A flow down provision is a clause that anticipates the other side will be empowered to make many contracts with third parties that give effect to the principal two-party agreement, and one side wants to control certain aspects of those third party contracts without negotiating or signing them.
For example, a US promoter might buy a 50 city tour and have an overall deal with the band. The US promoter then goes out and contracts with local promoters for each of the 50 shows. The artist may want to get the US promoter to promise the each of these 50 contracts will have certain clauses to protect the artist often relating to staging, insurance, venue sales and advertising. That’s a good place to put the antipiracy clause, but the artist is not necessarily a party to those agreements.
Artists Helping Artists
It is easy to see how this language could be adopted in sponsorship or event agreements, and i t would go a long way to raising awareness of the situation and incentivizing all concerned in the right way.
The Trichordist 