Artists Rights Advocates Make Gains in 2015… Web/Tech Admissions Laid Bare.

So many of the issues we’ve been talking about for years are finally becoming part of the larger and more mainstream conversations about artists rights and an ethical internet.

Seems like there is a little bit more than a slight draft blowing on house of cards that Silicon Valley has built. Here’s a quick recap.


Pandora CEO Mike McAndrews first started teasing this talking point during an earnings call in October. You can read those comments at Re/Code. But it was the more direct article McAndrew’s authored for Business Insider that really cemented what we’ve been saying all along…

“This gray market is unsustainable. If consumers can legally listen to free on-demand music permanently without converting to paying models, the value of music will continue to spiral downward to the benefit of no one.”

There is no turning back from this admission.

It’s funny how in years past so many in the music and tech communities could not and would not admit to this simple fundamental truth often telling musicians the true value of their platform was “exposure” so artists could “tour and sell t-shirts”. Well it now looks like the wheels have been run off that nonsense for good.

What would be really great is to see Pandora join the fight with artists against Ad-Funded Piracy. Pandora, Spotify, YouTube and every other Ad-Supported music platform must be aware of the fact that the downward pressure from these infringing pirate sites not only diminishes the value of music, but also the value of advertising on legitimate and licensed paltforms.


Taylor Swift, Adele, Beyonce, Prince, Coldplay, The Black Keys, Thom Yorke and other artists have proved that Hits Don’t Need Spotify, but rather Spotify Needs Hits. The Wall Street Journal reports that Spotify is caving in on windowing.

Now, the service is caving in, according to people familiar with the matter.

In private talks, Spotify has told music executives that it is considering allowing some artists to start releasing albums only to its 20 million-plus subscribers, who pay $10 a month, while withholding the music temporarily from its 80 million free users. The company is only interested in withholding albums that can be kept off of other free music sites, such as Alphabet Inc.’s YouTube, for the same amount of time, one of these people said.

There is no turning back from this admission.

This means that Spotify has admitted that it is NOT a discovery medium, it is a retail outlet. Spotify is the digital cut-out bin offering the lowest amount of value to artists. The big problem for Spotify now is who decides who is a lessor or greater artist? Who is going to have that conversation with artists and managers that they are a lessor artist and not worthy of Spotify’s stamp of approval to only be streamed to paying subscribers? Ironically, but predictably the new boss is worse than the old boss.

As with Pandora’s admission about unlimited free streaming being unsustainable, Spotify also recognizes that Ad-Funded Piracy, particularly of the YouTube variety (and mentioned by name) must be managed effectively for windowing to work.


Here’s a shocker. YouTuber’s who create original content through their own investment of time, money and resources are outraged when Facebook users “Freeboot” (aka Pirate) those videos depriving the original creator of the revenue. Hank Green writes a post on Medium that breaks it down.

According to a recent report from Ogilvy and Tubular Labs, of the 1000 most popular Facebook videos of Q1 2015, 725 were stolen re-uploads. Just these 725 “freebooted” videos were responsible for around 17 BILLION views last quarter. This is not insignificant, it’s the vast majority of Facebook’s high volume traffic.

There is no turning back from this admission.

Every argument that has been used against musicians, filmmakers and other creators for using the DMCA to protect their work suddenly takes on new dimensions when the tables are turned.

Larry Lessig had convinced a generation that they we’re being criminalized because musicians were “out of touch” with the “sharing economy”. When musicians issued DMCA notices to YouTube they were vilified, taunted and publicly shamed “Sorry that video is no long available due to a copyright claim by the artist.


Perhaps the single greatest ruling of the year involves Cox Communications losing it’s safe harbor under the DMCA. Digital Music News reports on the jury verdict.

Ultimately, the court found the situation to be more complicated than that, with Cox now ruled guilty of both contributory and willful contributory copyright infringement by a federal jury.  The jury award is $25 million, though that probably represents a small prelude to damages that could ultimately push into the hundreds of millions.

There is no turning back from this verdict.

For those of you keeping score at home it is the DMCA abuse that has been used as a shield against copyright infringement liability by the internet and web/tech communities. Many businesses including many ISP’s and content hosting platforms such as YouTube have used the DMCA to build massively profitable businesses that are largely comprised of infringing works, otherwise known as User Pirated Content. That may be about to change thanks to this ruling.


In a recent interview Peter Sunde, the founder of The Pirate Bay, the flagship of the free culture movement admitted he had failed and was giving up. The most interesting admission by Sunde is at the end of the interview where he echoes what we and other’s have been saying for years.

So, is there like a concrete thing we should focus on? Or do we need to aim for a new way of thinking? A new ideology?

Well, I think the focus needs to be that the internet is exactly the same as society.

There is no turning back from this admission.

There is an excellent open letter in response to Sunde by David Newhoff at The Illusion of More that is well worth reading with a detailed look at why Sunde has failed. But it is Sunde himself who makes the most profound admission.

We have centuries of rule of law for civilized societies that respect and protect individual creators rights in the authorship of their work. The United Nations Universal Declaration of Human Rights, Article 27, part 2 states “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

The greatest irony here is that Sunde set up The Pirate Bay as an attack on capitalism, but he started by attacking artist’s and creator’s moral rights firsts. The paradox of “pirate logic” expands when one recognizes that The Pirate Bay was said to be making over four million dollars year. Yeah, that’s the way to fight capitalism, attack the ability for artists to survive and pocket four million a year. We couldn’t make this up if we tried.


  • Pandora attacks Spotify stating the Unlimited, Ad-Supported, On Demand, Free Streaming is Unsustainble.
  • Spotify attacks YouTube stating that Windowing Can Only Work If Windows Can Be Enforced.
  • YouTuber’s attack Facebook stating that Stealing and Monetizing their work Without Permission is bad.
  • Cox Communications attacked the DMCA stating “F*ck The DMCA” and lost.
  • Peter Sunde attacks Capitalism stating that… oh well, forget it… it’s nonsense.

There is a lot of work to be done, however these admissions set the framework for the future of these conversations going forward.

jean michael jarre IRM 1


Ethical Fan Reports : EFF Agenda Theories

A fascinating look at the Electronic Frontier Foundation.

Rather than fighting for the rights of people who work to create content, EFF appears to fight for the rights of organized for-profit enterprises who appear to us to be breaking the law and appear to be profiting from illegally distributing digital goods with no intention of ever paying the owners or creators.


EFF’s John Perry Barlow is Wrong, says Google’s Chief Economist

The EFF assumes the worst – of everyone else.

An interesting look at the Electronic Frontier Foundation’s highly selective reasoning regarding the DMCA by David Newhoff at The Illusion Of More.

“The long and shameful history of the Digital Millennium Copyright Act file takedown abuse teaches us that intellectual property owners cannot be trusted with the enforcement tools they already have  we should hardly be giving them new ones.”  The “long and shameful” true history of the DMCA is how utterly useless the mechanism is for rights holders to protect their works.

Many creators have demonstrated over an over again that the DMCA notice and takedown procedure is spitting in the wind for even very large, well-funded producers, and completely hopeless for independent and smaller rights holders.

Meanwhile, it is the (internet/tech) industry that funds the EFF, who have made sure that DMCA remains a fly swatter in a storm of raptors.  And that’s bad enough, but to add insult to injury, McSherry sticks this fact in a paper bag and lights in on fire on our doorstep when she says the DMCA has a “history of abuse” by rights holders.  And one reason we can know she’s full of it, is the flimsiness of the cases her own organization chooses to take on as exemplary of this so-called abuse.


CES Fart Club aka The Slaptastic “Pro-Artist Copyright Policy Panel” features Anti-Copyright Advocates and Google Named Shills #2013CES

Not even kidding, just match the Anti-Copyright Google shills to the panelist list below. Talk about letting the fox guard the hen house. Wow, these are the same people who whine when not invited to trade organization and policy meetings like the TPP, but are so opposed to a balanced conversation they couldn’t actually invite a single artist rights representative! Ok, wow.

This is looking like a Silicon Valley Smug Alert, or otherwise known as Fart Club.

Beyond SOPA: Creating a Pro-innovation, Pro-artist Copyright Policy

Copyright policy – once an esoteric and legal backwater – now has a critical impact on our ability to work, play and communicate. In 2012, millions of Americans contacted their member of Congress to protest restrictive copyright proposals, while intellectual property issues took center stage in Washington and at the Presidential debates.

Join a group of entrepreneurs and DC policymakers as we discuss how to protect IP while maintaining a vibrant internet and creating new opportunities for content creators.

Moderated by:
Declan McCullagh, CNet Reporter

Featuring panelists:

Also on Tuesday January 8th, our own Hank Shocklee will be the DJ at The Innovation Movement party at Surrender at Encore from 7-10 pm.

Hit us up if you’re in town for the show – we’re still taking business meeting requests if you’d like to meet up.
See you in Vegas!

Google names names in amended ‘shills’ list – Employees, consultants, trade groups outed | The Register UK

In addition to the CCIA, Google named the Electronic Frontier Foundation, Public Knowledge, the Center for Democracy and Technology, and the Competitive Enterprise Institute as organizations who have received funds from Google…

Oh, and yeah… Mike Masnick is listed as a Google shill as well in the article at the link above too…

Second Nyan Cat Award Goes To The Fake Thomas Jefferson And His Copyleft Creators

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.

The Economy of Ideas

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.

Jefferson’s Nature

David Post has written a sort of legal alternate reality historical fiction In 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.

Who Cares What Jefferson Thought about Copyright

Myths from the Birth of US Copyright

The fact these two articles are often viewed as controversial in cyberspace shows us just how far from historical reality the discussion has drifted.

It should also be noted that David Post  responded to Terry Hart’s “Who cares what Jefferson thought about copyright”:

Why Should We Care What Jefferson Thought About Copyright

And Terry Hart then responded:

Response to David Post, re: Jefferson

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.

EFF’s John Perry Barlow is Wrong, says Google’s Chief Economist

What Artificial Scarcity?

John Perry Barlow is the outspoken EFF co-founder who wrote the sophomoric and nonsensical manifesto for the internet. Much of Barlow’s principal talking points regarding his complete disregard for the protection of artists rights in the digital age centers around the idea that “property” especially of the intellectual kind should not exist on the internet.

“Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”- John Perry Barlow

The fact that this is posted on the EFF website should be at the very least alarming, if not completely absurd for a policy group to display publicly as part of its mission.

There is much talk online by freehadist’s that digital bits are worthless and the cost of a copy is zero, therefore all content online has a near zero marginal cost and should be freely available. Of course any rational and reasonable person would know that this is nonsense due to the fixed cost of production on information goods. Hell, even Google’s own Chief Economist Hal A Varian “get’s it” as outlined in his book, Information Rules:

Page 83.

John Perry Barlow asserted that “Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression… We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.” Is Barlow right? Is copyright law hopelessly outdated? We think not.

Continued, Page 93.

“Bitlegging” can’t be ignored: there’s no doubt that it can be a significant drag on profits.

Bitleggers have the same problem that any other sellers of contraband material have: they have to pet potential customers know how to find them. But if they advertise their location to potential customers, they also advertise their location to law enforcement authorities. In the contraband business it pays to advertise… but not too much.

This puts a natural limit on the size of for-profit illegal activities: the bigger they get, the more likely they are to get caught. Digital piracy can’t be eliminated, any more than any other kind of illegal activity, but it can be kept under control. All that is required is the political will to enforce intellectual property rights.

Fascinating that Google is so actively involved in exploiting the content that other’s have paid to create in production costs, as Google profits from the marginal costs. Clearly, the value of monetizing content without fixed production costs is not an unknown concept to the company given that their chief economist literally wrote the book on information economies. As a matter of fact, that appears to be a damn good model to build advertising around, who knew?

Also note the emphasis on political will power.  In fact, we’ve seen that Google seems to have plenty of that to oppose the protection of artists rights.

[update] Here’s John Perry Barlow, sparring with Bob Weir at SF Music Tech in Feb of 2012. Barlow repeats the same talking point in trying to dismiss Weir’s concern over compensation for artists online. Jump to 5:10 in the video to hear Barlow say, “I think the answer is there, we just have to, we just have to get the property model out of the picture… “


see also : Musicians For An Ethical Internet



Enemies of Artists Organize on Internet

Once again the guardian misses the not-so-subtlety of the debate. It’s not Governments and large corporations on one side of the “freedom of the internet” debate and individuals on the other. This is a completely outdated narrative.

The freedom of the internet debate has been totally co-opted. Google and other giant tech companies would have you believe they are fighting for your “freedom” when it’s actually their freedom to exploit us. Further they want to be beyond government control. Recently in The Guardian  Sergey Brin was quoted as saying: “If we could wave a magic wand and not be subject to US law, that would be great”.

Personally we’d rather have a democratically controlled elected government regulating the internet, rather than a company like google which isn’t even accountable to it’s own shareholders. (see latest stock split).

Further Google, Facebook and others web 2.0 companies are all built on an “architecture of exploitation”. Or as Stephen Colbert smartly noted in his interview with Lawrence Lessig:

Colbert: Well let’s see (laughing)…so the hybrid economy is where everybody else does the work and Flickr makes all the money?

Wake up people.

Trichordist Editorial.