Music Industry Trying To 'Store An Iceberg In The Sahara'
from the rethinking-copyright dept
Catharina Bethlehem points us to an interesting speech by copyright lawyer Hans Bousie at the Eurosonic Noorderslag Festival in Groningen (Netherlands), in which he suggests that the major labels are trying to “store an iceberg in the Sahara,” with their current strategies. He basically argues that thanks to copyright law today, everyone demands their “fair cut,” except that the “fair cut” isn’t actually all that fair, and it ends up that lots of large entities take out their own giant cuts, leaving little (if any) money for the actual creator. This, he argues, is the fault of the way copyright law today works, and how it’s not set up for modern technology.
Imagine all the music in the world as one large iceberg. This iceberg is guarded by the music industry. If you want a chunk out of it, you must buy it. But they made a big mistake; they are desperately trying to store this iceberg in the Sahara and refuse to tow it to a safer place. They might even think that it?s too expensive to tow the iceberg all the way up to the poles. The tragedy is that the industry is not even aware that the iceberg melts, so what they are trying to sell is slipping away and is freely admissible as plain and simple water. So on the Internet music is available like water, entirely free, but, unfortunately, illegal.
He argues, instead, that copyright should be changed, such that it’s not considered a “property right,” but rather “a right to a creative income.” More specifically, he’s arguing for low compulsory licensing rates, basically making it easy for innovators to innovate around music without having to negotiate huge and expensive deals, while also guaranteeing that folks actually get paid. While this is definitely better than what we have today, I’m not at all convinced it really makes sense in the long run. When you have compulsory licenses, what you end up with is a regular fight for certain folks to convince whoever controls the compulsory rates to raise them. The market gets thrown out the window for some guy sticking his finger in the air and having it blown on by those who want him to push the rates up. It’s a process prone to abuse.
The simple fact is that no one can or should have a “right to an income” from their own works. You merely have the right to put in place a business model and see how the market reacts. That could provide you with a very nice income or it could provide you with none at all. It’s the business model that decides, and we shouldn’t be having the government randomly deciding just how that business model works.
Filed Under: copyright, hans bousie, music industry
Comments on “Music Industry Trying To 'Store An Iceberg In The Sahara'”
I actually think you’re arguing cross-wise here. Low-licensing rates could be a nonviable second income, as it were, say 3 cents/track.
That way, it could encourage innovation ay asking musicians, ” can you monetize this so you can live off it?”
What the heck, why isn’t threaded mode working?
“a right to a creative income.”
Talk about an entitlement mentality. On my grading system this is a fail.
How does the compulsory license guarantee that the “actual creator” gets the fees instead of the “large entities”? Wouldn’t the fees go the rights holder, whoever that may be? Isn’t that how it already works?
Also, I don’t read the “right to an income” as a guarantee of income. It simply means that if there is income, then it goes by right to the right holder. Isn’t that how it already works?
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Clear your cookies. Clear your web browser cache. check that javascript is on.
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“a right to a creative income.”
Talk about an entitlement mentality. On my grading system this is a fail.
How is that any different than what we have now? The right to a particular source of income is not the same thing as a guarantee that any income will come from that source.
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“It simply means that if there is income, then it goes by right to the right holder.”
This guy seems to saying it should go to the creator of the work not the “rights holder”. Or am I missing something.
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No luck. Even in IE I can’t get to it. On another computer I am stuck on threaded view, on this one I am stuck on flattened view.
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This guy seems to saying it should go to the creator of the work not the “rights holder”. Or am I missing something.
Is that what he’s saying? If that’s the case, why would anyone other than the creator want to hold the rights? There would be no incentive to transfer the rights.
threaded
can’t get threaded to work here either.
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“Is that what he’s saying? If that’s the case, why would anyone other than the creator want to hold the rights? There would be no incentive to transfer the rights.”
Actually, that sounds pretty good to me then….
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Actually, that sounds pretty good to me then….
It impinges on one’s freedom to contract. How’s that a good thing?
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How it impinges on one’s freedom to contract?
Can the artist not contract his music to others?
The only people who loose are the peripheral middle men, instead of them being the boss, things would turn to the other way.
In other news, have you seen the Wikileaks iPhone game?
http://itunes.apple.com/us/app/wikileak-defender-lite/
Its technical innovation and stuff like this that I think a lot of people don’t quite grasp and makes me have some faith in humanity.
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“Is that what he’s saying? If that’s the case, why would anyone other than the creator want to hold the rights? There would be no incentive to transfer the rights.”
I believe this is where a great deal of the problems lie. Copyrights SHOULD be non-transferable so that they always remain in the creator’s hands. If the labels find an interest in a band, they should make them an offer granting them (the labels) the right to share income for a limited time through a licensing agreement with the creator.
Artists would always get fairly paid, the labels could continue on doing what they are doing without holding everyone and everything hostage to THEIR terms, and in turn there’d likely be a much greater respect for copyright than there is now.
As long as copyright is heavy-handed, one-sided, and unfair, there will be no respect for it, and it can’t work without respect for it in this day and age no matter what the law says.
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“It impinges on one’s freedom to contract. How’s that a good thing?”
Huh? It simply takes away an incentive, not a freedom. I see a much more efficient system if rights of artists are more often retained by them, that’s why it might be a good thing….
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Limitations on non compete clauses do the same and they’re good.
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(state limitations)
Technological progress with cultural phenomenons
I am fairly certain that it is difficult to stop cultural phenomenons that have a tie-in to technological progress. Somewhat related, have you seen the new Wikileaks iPhone game?
http://is.gd/SwEReI
Its technical innovation and stuff like this that I think a lot of legacy companies don’t quite grasp, which is like a melting iceberg in the Sahara.
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I believe this is where a great deal of the problems lie. Copyrights SHOULD be non-transferable so that they always remain in the creator’s hands. If the labels find an interest in a band, they should make them an offer granting them (the labels) the right to share income for a limited time through a licensing agreement with the creator.
Artists would always get fairly paid, the labels could continue on doing what they are doing without holding everyone and everything hostage to THEIR terms, and in turn there’d likely be a much greater respect for copyright than there is now.
As long as copyright is heavy-handed, one-sided, and unfair, there will be no respect for it, and it can’t work without respect for it in this day and age no matter what the law says.
People should be allowed to agree to any condition or term they want to in a contract (within reason, of course). I’m not sure how you think copyright is to blame for agreements that two parties willingly enter into. The right to freely contract is fundamental.
Threaded and responses don’t work for me here, granted I’m using a proxy(i.e. TOR) and don’t have scripts enabled.
At least is not like people changed the comments to only support people who enable scripts like I dunno CNN.
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Both what we have now and what he is proposing show an entitlement mentality. There is no difference. Except one targets the artists the other targets the rights holders (read that as record labels). I believe the better of the two is to target and support the artists.
Truth be told the point is moot for the next five years plus or minus a little. When the final three record labels fail then this is a something that has a chance of being implemented.
I would however like to discuss this, if you are willing.
Here are my main points.
1) There is a baseline amount for each whatever this collection agency collects (def: Whatever – per song, percentage of sales, usage fee, etc)
2) The artist can change this amount at anytime, with no delay, including free.
3) the artist can either opt out or opt in.
4) Like insurance all uncollected monies are turned over to the state to hold after some time period.
5) after the state holds the uncollected monies for some time period it gets turned into grants for artists.
6) there is a baseline fee that the collection agencies can collect that has an upper limit that is voted on by the artists.
7) add yours here
I think the idea of the iceberg came to him after noting that plastic looks like ice, not the other ICE.
Always a Let Down
Gotta stop getting my hopes up. Seems like every time someones start to make a bit of sense, and give you that wonderful feeling that maybe, just maybe, someone somewhere gets it, they then come around full circle to crazytown.
“Government meddling had created an entirely unworkable system.”
“Yes!”
“And the obvious answer is to institute even MORE government meddling!”
“Ye-Wait, what?”
I read a book a while back “The World History of Salt” or something like that. One chapter talked about the days when the British controlled India. They, by law, established a salt monopoly there to make money. It was illegal to to own or use any form of salt that you didn’t buy from British approved/taxed vendors. You could be thrown in jail for even picking up a naturally formed chunk of salt along the sea shore (according to the book Ghandi did exactly that in protest and was jailed for it). Smuggling was rampant because of the huge price markup on official sources.
If you substitute the recording companies for the British, and music for salt, don’t you have pretty much the same situation today?
“The right to freely contract is fundamental”
Ahhh yes, the unalienable right to have your rights be alienable.
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Just add ?threaded=true to the end of the URL, as the old “Threaded” link used to do.
Looks like we also lost the ability of doing threaded replies without enabling Javascript.
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Limitations on non compete clauses do the same and they’re good.
Right. A non-compete agreement limits one’s ability to contract, limiting one’s ability to contract is bad. Therefore, limiting non-compete agreements is good.
What you would have next, is that the music industry, the movie industry, the software industry, the photographing industry, the crossstitch makers, right on down to those making a web page would all want their cut.
When you open this can of worms, you wind up with so many hands out with so little money, no one gets anything. The next thing happens is everyone bitching that they aren’t making a gold mine out of that one sale to you, the customer. So the big boys go to bitching and next thing you know after a few cycles of this, the outlandish prices they have now, seem like savings.
Better to gut copyright terms and rewrite them, without much if any input by those affected. Otherwise you go right back to the same thing you have today. The copyright industry is never satisfied. Pass a law and tomorrow they are back with something even more outlandish.
You can’t recognize today’s copyright authorizations as compared to the originals as anything within reasonably simular terms. They don’t exist as the continual demand has already raised the restrictions to the point they are useless as far as anything making it into public domain. Nothing in the last two years has made it into the public domain, the original purpose for copyright to exist.
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Huh? It simply takes away an incentive, not a freedom. I see a much more efficient system if rights of artists are more often retained by them, that’s why it might be a good thing….
If you take away someone’s ability to contract their rights, you’ve impinged their freedom to contract. Perhaps it would be better if less artists transferred their rights. Perhaps not. But to make it illegal to transfer one’s rights altogether would be bad, as it would outlaw the transferal of rights in situations that are in fact beneficial to the transferor.
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Isn’t that what the judges did when they weakened recording artists rights?
Lawrence Lessig researched it, in his book Free Culture. Before 1909, this situation hadn’t come up. It’s been a patchwork of subsidizing one right to make it “right” for someone else to make money in a unique way.
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The rest of the entire world have moral rights that are untransferable and didn’t stop Japan to becoming the third or second market for music, also it didn’t stop Europe from becoming a giant market, is only in the U.S. that there is no moral rights.
That is not an issue even if the rights where not transferable there would still be contracts and licenses to fulfill, last I heard breach of contract can lead to severe punishments worldwide.
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To me, it’s just the same thing as saying that the farmer has a right to income from the crops, the cobbler has a right to income from fixing shoes, and the roofer has a right to income from making a roof. As I like food, shoes and roofs, I’m all for guaranteeing them the right to earn all of the income from their hard work because without that income they’ll go out of business.
Now forced licensing is an entirely different matter. If the mashup maker doesn’t want to pay for the license, they can always just create their own tracks. They’ve got a right to do so. So they should just get up and record their own tracks instead of creating endless arguments about why they should have some right to make money off of other people’s work. See. I can use the word “right” too.
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>> instead of creating endless arguments about why they should have some right to make money off of other people’s work.
How do you think migrant workers feel in how their bosses, the land owner, the truckers, those that store the food, the retailers, the marketers, the media owners, and on and on all make money off the work they are doing?
It’s pretty rotten. They sweat and everyone else makes money.. in particular.. they tend to be at the bottom of the money-making ranking.
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Thanks, I was wondering what the other link did, but never bothered to pay attention.
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A non compete clause limits what one can do in a contract and hence it limits ones ability to contract.
Your argument is no different than saying, by preventing me from contracting someone else’s work away, copyright limits my ability to contract and hence copyright is bad.
Or
If an artist contracts his work exclusively to a record label that limits his ability to contract it to others, hence allowing artists to contract their work away limits their ability to contract and is bad.
You’re missing the point.
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“People should be allowed to agree to any condition or term they want to in a contract (within reason, of course). I’m not sure how you think copyright is to blame for agreements that two parties willingly enter into. The right to freely contract is fundamental.”
The current contracts are another big part of the problem.
I’m a music promoter and I see bands get screwed over all the time either because they got “starry-eyed” and didn’t read the fine print, or the labels simply didn’t live up to their end of the agreement while the bands are out there busting their asses night after night.
Some good friends of mine 2 years ago got what should have been a “great deal” with a “good” label, however the label did nothing themselves to promote them and when sales didn’t meet their expectations quickly dropped them though they had a good and growing fan base worldwide. They never even bothered to release them worldwide even though demand was there. This was an extremely talented band who had worked for years to get to this point and were so distraught after this that they disbanded. The world’s loss.
I’ve interviewed a number of bands and the happiest ones seem to be the ones who are label-less (of course my friends above are an exception). One band busted out the biggest smiles when they told me their label contract was finally over.
I think the bottom line regarding copyright, contracts, and labels in general is that the the ways of the past and present are not sustainable for anyone involved in music. Change needs to happen, and it is, but the labels would rather tear down the internet and fuck the world and everyone in it rather than honestly look for a workable solution. They are NOT innovators so that solution will never be found within themselves.
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“But to make it illegal to transfer one’s rights altogether would be bad, as it would outlaw the transferal of rights in situations that are in fact beneficial to the transferor.”
Okay, but that’s not what I or you said in responding to each other. You said:
“If that’s the case, why would anyone other than the creator want to hold the rights? There would be no incentive to transfer the rights.”
Which I’m good with. No impinging on freedoms, only the removal of incentives for something I think is bad.
How is this confusing to you?
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Ones ability to contract can itself limit ones ability to contract. But that’s different from saying that the government is limiting ones ability to contract. A non compete clause limits ones ability to contract by denying them the ability to contract away their ability to make certain contracts. So, without non compete clauses, people have more freedom/ability to contract because they can either choose to contract away their ability to contract or they can choose not to. After such laws, people have less of an ability to contract. Yet, these laws are generally good.
Same thing applies here. Limiting an artists ability to contract away his art/music is good, though what might even be better is if copy’right’ didn’t exist (or if it was more reasonable) since it limits the rights of those who didn’t agree/contract to anything.
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The right to freely contract is fundamental.
Really? That’s the best you can do. There are so many exceptions to the freedom of contract rulings that the original case law hardly applies anymore. Minimum wage, non-compete limits, hours of work, you can’t forfeit human rights, etc.
From a separate post: If you take away someone’s ability to contract their rights, you’ve impinged their freedom to contract.
The whole point is to ELIMINATE copyright in favor of some other system. As copyright is not a natural right, but rather a government granted monopoly, if the government stops granting a monopoly right you have nothing to contract. In simpler terms, you can’t lose the freedom to contract a right you don’t have.
Your entire “freedom of contract” argument is a big, useless red herring which has nothing to do with what is being discussed. I’m guessing it was the subject of a recent class at school and now you’re throwing it around like a “word of the day.”
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Yes, except instead of salt use the word thought. Because music is, literally, infinitely more abundant than salt.
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A non compete clause limits what one can do in a contract and hence it limits ones ability to contract.
Your argument is no different than saying, by preventing me from contracting someone else’s work away, copyright limits my ability to contract and hence copyright is bad.
Or
If an artist contracts his work exclusively to a record label that limits his ability to contract it to others, hence allowing artists to contract their work away limits their ability to contract and is bad.
You’re missing the point.
And if I contract away my exclusive rights to use my toaster oven to one party, that means I can’t contract away those same rights to another party. So what? Do you think we just shouldn’t allow people to contract away their exclusive rights when they choose to? I’m for freedom of contract. Apparently, you’re not.
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In a free market “exclusive contracts” should be banned forever.
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Not to mention that art really isn’t anything without an audience so that audience should be able to make money off of experiencing the art as well.
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Okay, but that’s not what I or you said in responding to each other. You said:
“If that’s the case, why would anyone other than the creator want to hold the rights? There would be no incentive to transfer the rights.”
Which I’m good with. No impinging on freedoms, only the removal of incentives for something I think is bad.
How is this confusing to you?
If you take away the ability to transfer rights, you’ve impinged on freedom.
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The main problem here is the government imposed monopoly power that big corporations have over communication distribution channels (outside the Internet).
The government gives monopoly privileges over who can build new or use existing cable infrastructure and they give monopoly privileges over the use of public airwaves, and collection societies do a lot to prevent independents from playing in restaurants and other venues without forcing the restaurants/venues to pay the collection society something or face an expensive lawsuit under the pretext that someone might infringe. So, an artist/musician needs often needs to go through a government imposed monopolist information distribution gatekeeper to get his art/music distributed, and the record labels have a huge influence over these monopolist gatekeepers.
Since the government grants a monopoly on both the content (in the form of copy’right) and the information distribution channel, it is often ensured that only content exclusively controlled (or ‘owned’) by special interest groups gets distributed over these information distribution channels. This makes it very difficult for independent artists/musicians, who want control of their own content, to get their content out. Perhaps one way to correct this is that, if the government is to grant monopoly privileges on airwave (or cableco) use, it should require that all content distributed over such channels is either in the public domain or is released under a license that allows everyone to freely use, build upon, and share the content. A government imposed monopoly on both the communication channel and the content on that channel is unacceptable.
Not to mention, other bad laws might make it more difficult for independents to spread their work. Especially with things like movies, cities often want money for any profits made from a movie shot in their cities (or they want you to hire expensive city employees to make sure no ordinances are broken and that the laws are kept), you need to pay for permits, in some cities you technically need to pay for profits of a move made in your own house, etc… and you wonder why independents are given no way of distributing their content.
The whole way that the laws are designed is fundamentally broken, they are designed to destroy meritocracy in favor of plutocracy, oppress the poor, and advance income inequality.
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Really? That’s the best you can do. There are so many exceptions to the freedom of contract rulings that the original case law hardly applies anymore. Minimum wage, non-compete limits, hours of work, you can’t forfeit human rights, etc.
I said fundamental, not absolute. I stand by that statement.
The whole point is to ELIMINATE copyright in favor of some other system. As copyright is not a natural right, but rather a government granted monopoly, if the government stops granting a monopoly right you have nothing to contract. In simpler terms, you can’t lose the freedom to contract a right you don’t have.
So you think the way to eliminate copyright is to remove the ability to transfer rights. That seems like a silly strategy to me. How would that eliminate copyright.
All rights are government granted. So what?
Your entire “freedom of contract” argument is a big, useless red herring which has nothing to do with what is being discussed. I’m guessing it was the subject of a recent class at school and now you’re throwing it around like a “word of the day.”
I took contract law two years ago. Guess again. The freedom to contract is very much what’s being discussed here. Limiting the ability to transfer rights limits one’s ability to contract.
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So you think the way to eliminate copyright is to remove the ability to transfer rights.
Reading comprehension 101: The author, Hans Bousie, said that we should eliminate copyright in favor of a compulsory license system. That means no one would have a copyright, instead they would have some kind of “right to a creative income”. At no point did the author, Hans Bousie, talk about limiting anyones ability to transfer that right. At no point did I talk about limiting anyones ability to transfer any rights. I simply pointed out that your contract law argument is meaningless in the context of a discussion about copyright vs. compulsory licensing.
You on the other hand co-opted a conversation to try to make it about contract law (snooze) because you want to turn everything into some type of scholarly law debate. Intentionally mis-reading my (and others) comments in an effort to steer the conversation is beneath you.
Frankly, I’m really tired of reading the crap you post. People will write insightful or interesting comments (both for and against copyright) and it is only a matter of moments before you have narrowed their post down to 1 sentence which vaguely brushes on some topic of law. The next thing you know, there are 50 comments where everyone under the sun is indulging you in some foolish debate about the finer points of current law.
I’ve had several “conversations” with you on these forums and you frequently mis-quote, mis-represent, or flat out mis-understand the law. Previous attempts to educate you by pointing to specific cases or statues have resulted in you bitching and name calling. When someone fires back the entire conversation is then about how “you won’t engage with them unless there is civil discourse.” (I guess the civil part only applies to the other party.)
Long story short, you’re rude, as yet uneducated, and surprisingly inept at reading for a lawyer. Also, there is a fine line between being an avid debater and being an argumentative asshole; unfortunately, you crossed that line some months ago.
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Wow. You are a god. I worship you.
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I just feel so guilty about all of this. How about I forward all of my posts to you for revision/comment before I post them? Making you happy means everything to me. You, so important, so strong, so perfect, so awesome. God, I’m lucky to even be able to read your posts.
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Nice rebuttal!
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Rebuttal? Never! He is the perfect one. We are lucky to be in his presence.
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“Do you think we just shouldn’t allow people to contract away their exclusive rights when they choose to?”
Not the hypocrisy. First you say that it’s OK for the government to prevent people from contracting away their ability to contract away their ability (ie: non – compete clauses), then you say it’s not OK (ie: when it comes to copy’rights’).
“I’m for freedom of contract. “
Only when it suits you.
“Apparently, you’re not.”
I’m for whatever I think is best for society.
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First you say that it’s OK for the government to prevent people from contracting away their ability to contract away their ability to contract *
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errr…. note the hypocrisy *
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I agree that people deserve to earn an income for their work. Where your analogy breaks down is that we are not still paying the farmer’s descendants fifty years after his death for those crops.
Re: Crops analogy not holding up
Why are we ignoring scarcity?
Each corn husk requires real cost in materials, time, energy, money, etc.
Meanwhile, each new digital copy has virtually zero marginal costs, but even if it had costs, they are born by the person making the copy, not by the author.
Re: Re: Crops analogy not holding up
I agree people keep applying real world analogs to Imaginary Property.
That made me smile IP = Imaginary Property.
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Is that like your IJ (imaginary job)?
threaded
can’t get threaded to work here either.
Yeah, we broke something. Working on it.
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“And if I contract away my exclusive rights to use my toaster oven to one party, that means I can’t contract away those same rights to another party. So what?”
So, that limits ones ability to contract, and by your logic, that’s bad. Remember, you said
“A non-compete agreement limits one’s ability to contract, limiting one’s ability to contract is bad. Therefore, limiting non-compete agreements is good.”
Stop being a hypocrite.
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“If you take away the ability to transfer rights, you’ve impinged on freedom.”
Ok, seriously, stop pretending you’re stupid because I know you aren’t. There was a suggestion that you make it so compulsory licenses generate income directly to the creators and no one else. That takes away an INCENTIVE for a 3rd party to contract copyright away from the creator, but does not PREVENT THEM or LIMIT THEIR FREEDOM to do so. They can still gain plenty of revenue through such a contract, just not through the compulsory license (such as marketing fees, advising fees, etc.).
I did NOT EVER SAY anything about taking away someone’s contracting freedom….
Psuedo-Libertarian claptrap
> It impinges on one’s freedom to contract. How’s that a good thing?
So do laws against more explicit forms of indentured servitude.
Certain rights should be inalienable, period.
If creative rights are really so important, then perhaps they should not be so easy for rich and powerful middlemen to steal.
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All rights are government granted. So what?
Uh, no, they are not.
I am the lawyer that held the speech at Eurosonic, you van read the fulle text here: http://bit.ly/f55X28 , my main point is that we should leave the way it now works, meaning we should no longer need permission first, but the other way around, “play now, pay later”. So permission is always granted but you still need to pay afterwards! Pay who? Who ever holds the rights, best regards Hans Bousie
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We are also not paying the company that takes 99% of the money to put into their pocket and then, the 1% the farmer gets goes to paying off his debt to these companies because you know, that is their right.
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You’re right. The whole point of limiting the freedom of contract is that it’s done so only when not to do so is bad for society at large. But your problem appears to be with copyright rights themselves, not their transferability. If you’re against copyright in general, I think you’re focusing on the wrong issue here.
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Now you’re just being silly.
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But this “creative right” is morality-based, not economic-efficieny based, correct?
In the case of a right to creative income, I’d have to say that mixing this moral right with the economic-efficiency based idea of “transfer of rights” is dreadfully inconsistent, and open to abuse.
You’re saying that something very, very special about the act of creation entitles someone to a right to get paid for that act of creation, should the audience/market decide to use that specially created something.
That distinguishes a “creator” very clearly.
Allowing transfer of rights to someone not a creator would seem to degrade the specialness of the creativity, or at the least put into question why the creator gets granted specialness.
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Uh, no, they are not.
What right isn’t?
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DH, he is just reading into something that isn’t there so that he can continue to argue to try and prove he is right.
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Can you elaborate on why we (society as a whole) should grant someone those rights? After all, we, the taxpayers, which is most of society as a whole, gets to pay for rights enforcement.
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“Now you’re just being silly.”
I can’t tell if this was for me, since threaded view is currently pooping all over itself, but if it was, then you sir are an argumentative genius and I bow to your impressive debate skills.
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http://en.wikipedia.org/wiki/Inalienable_rights
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Ok, seriously, stop pretending you’re stupid because I know you aren’t. There was a suggestion that you make it so compulsory licenses generate income directly to the creators and no one else. That takes away an INCENTIVE for a 3rd party to contract copyright away from the creator, but does not PREVENT THEM or LIMIT THEIR FREEDOM to do so. They can still gain plenty of revenue through such a contract, just not through the compulsory license (such as marketing fees, advising fees, etc.).
I did NOT EVER SAY anything about taking away someone’s contracting freedom….
So the creator would not be able to transfer away his right to the compulsory licensing fee. That limits his ability to contract as he pleases. Why not let the creator decide what they want and what they don’t want?
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I do like to argue (obviously), but I wouldn’t do that. I’m often wrong, and I’m happy to admit when I’m so.
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I can’t tell if this was for me, since threaded view is currently pooping all over itself, but if it was, then you sir are an argumentative genius and I bow to your impressive debate skills.
It wasn’t to you. It was to an AC. The AC is saying I contradicted myself. I didn’t. When I said non-competes are bad, I meant that that’s the theory of why they aren’t allowed in some jurisdictions. Personally, I don’t think non-competes in general are good or bad. It depends on the circumstances.
Psuedo-Libertarian claptrap
So do laws against more explicit forms of indentured servitude.
Certain rights should be inalienable, period.
If creative rights are really so important, then perhaps they should not be so easy for rich and powerful middlemen to steal.
What you call steal, I call the conscious, willing choice to dispense with.
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Let’s try this… can you give me a specific example of such a right?
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I think both are the problem. I think restricting their transferability is better than what we have and I think putting other limits on it (ie: length) is also better than what we have.
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“I didn’t.”
Yes you did.
“I meant that that’s the theory of why they aren’t allowed in some jurisdictions. “
That theory applies to limiting ones ability to contract away exclusive ‘rights’ (or, what should rightfully be called, privileges).
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“Where your analogy breaks down is that we are not still paying the farmer’s descendants fifty years after his death for those crops”
One name Monsanto … so your analogy breaks down. 😉
Actually, the iceberg is still in the cold frozen north. However, pirates are standing around with blow torches melting it away. It isn’t the location or the methods that are causing issues, only those who seek to destroy it.
Re: Re:
Care to provide a citation?
The best (GAO) research on this says piracy really isn’t a problem. Merely repeating an unsupported opinion thousands of times doesn’t make it true.
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Bruce, you have to use the usual deductive logic:
The amount of people with an MP3 or digital music player is way up.
The consumption of music (listening) is at an all time high.
The amounts of music legally purchases is at a record low for the last few decades.
Somehow, people have more music and yet they buy less of it.
So how do you explain it?
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Did you know that you can turn your CD collection into a .mp3 collection without spending a dime?
Re: Re: Re:2 Re:
I don’t think they realize that.
They are used to us having to replace albums every couple of years.
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Everyone realizes that. If everyone was walking around with an MP3 player full of only 10 year old music, you might have a claim. The reality is that people all have the latest songs, the new one from this and from that…and none of them paid for it.
It’s amazing, isn’t it?
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It would be more amazing if it were true.
Simply saying that “everyone has the latest music and no one is paying” doesn’t actually make that statement true. Also, we still have these magical devices called radios and you can use them to record music for free (legally, http://en.wikipedia.org/wiki/Audio_Home_Recording_Act). You can even record music for free off of internet radio stations.
It doesn’t take a genius to understand that recorded music sales will decline under the following conditions:
The truth is that music studios have been INTENTIONALLY reducing the amount of product offered while simultaneously increasing their profit (basically they reduced their risk by signing fewer crappy artists). More recent numbers show that even with the decline in recorded music sales, most of the labels continue to have higher gross profits.
Better how???
In what possible world is a “right to creative income” better than what we have now? All that does is legislate the ridiculous entitlement mentality that already exists in creative arenas, and it puts the government in control of incomes, to boot.
There is no “right to income.” If I build a widget that has no audience, I get no income. Why should it be different for certain arenas that our government arbitrarily declares to be “creative.” If I go bang random notes on the piano and call it “interpretive art,” do I have a “right to income” for it? HELL, NO!
There are plenty of ways to make money off of creative endeavors without resorting to a government-regulated collection society for the “poor” artists who can’t hack it. You’ve publicized many of them on this site. Let the market reveal ways to make money. It’s already happening. But, for crying out loud, don’t stop that progress in it’s tracks with some ridiculous and unfounded “right” to be paid for “creativity.”
Humans are creative by nature. You may as well say people should be paid to exist. Oh, wait, I guess some people already do say that.
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Life, liberty, and the pursuit of happiness, according to the Declaration of Independence. I would add to these, the right to property (real property, not thoughts), and freedom in thought and speech. Are these defended by the government? Yes, but they are not granted by the government. Can the government take them away? No. They can infringe upon them, in which case it is our duty to defend them, but the government cannot grant them or take them away.
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Life, liberty, and the pursuit of happiness, according to the Declaration of Independence. I would add to these, the right to property (real property, not thoughts), and freedom in thought and speech. Are these defended by the government? Yes, but they are not granted by the government. Can the government take them away? No. They can infringe upon them, in which case it is our duty to defend them, but the government cannot grant them or take them away.
Right. And none of those can be contracted away. Without government granted rights, there’d be no contracts. That was my point.
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I believe the government grants you the right to life by not killing you.
Better how???
You miss the point. “right to income” only means “right to sell however you see fit”. If you run a restaurent, you have the right to set the prices however you see fit. The public decides if you are right or wrong. But if they come eat the food, you have the “right to income” to charge them for it.
It doesn’t mean welfare for artists. All it means is that when you consumer their product, they have the right to get paid for it.
The market is revealing, in fact, that licensing is a bigger and bigger part of the music industry. More and more artists (including another techdirt darling, Trent Reznor) are hitting the movie world with music. That is the ultimate in licensing joy, they get paid for every movie ticket sold. Should he write and record the music for, I dunno, minimum wage, and stop there? Does he have no right to make money as his music is used?
Your logic fails, because you miss the basics.
Re: Better how???
The customer can also send back the plate of food if they don’t like it. Guess how much they will pay for that?
Copyright back to 14 years. Renewable once for additional 11 years.
Commercial use requires a license.
Download for “free” on net, donate to artist. Artist then, if necessary, pays back a label.
Re: Better how???
Referencing the author of the speech himself, who posted just a few items up (http://www.techdirt.com/articles/20110124/04164812796/music-industry-trying-to-store-iceberg-sahara.shtml#c661) you seem to have made a huge mistake as well, possibly deliberately.
I’d read what Hans Bousie himself has to say about his main point, rather than relying on what Anonymous Coward has to spin about it.
Re: Better how???
I imagine you are trying to convey that those that do work that helps society should be able to make money; however, many groups (certainly in the realm of software) have shown that you don’t need monopolies to make money when you create something of value intellectually.
Read this page to see how this artist made money by removing virtually all copyright restrictions from her work http://questioncopyright.org/sita_distribution (it’s dated; it covers one year’s time I think).
As for the analogy. We can each make and sell the same basic widget and each get paid quite possibly the same amount, but you are saying that if we each make and sell the same basic music recording that only one person can make the money.
What is reasonable is that one of those makes extra money because they originated the precise musical expression (ignoring how many components of that music they did not derive out of a void but instead copied from society) while the other copied that expression.
The way this can happen is through endorsements. The author endorses one product and fans are willing to pay a little more for that product (all else being equal between that and a the competition). The fans do this to support the work and future works and because humans know how to value things.
Copyright monopolies, on the other hand, enable an interesting work to be kept at a high price, stifling further creative output motivated by that work, and removing efficiencies in distribution, total product, etc, that competition would have brought.
And if the owner is not the author, then we find ourselves where the author might have zero or very limited rights to the very thing they created (eg, Disney cartoonists, at least in years past).
Without the copyright monopoly, the author would always have the hope to use past works s/he created.
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If a tree falls in the woods and nobody is around to hear it, does it make a sound?
Art is not defined by who looks at it, it is what it is. Anyone can create it, the artist should be able to decide if it goes public/private/un-shown(or heard), the audience just decides if they like it.
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Art without an audience is also known sex without a partner, or, you know, masturbation.
Job killer...
And why would I hire an artist, musician, writer or film maker to work on a project if that person can’t transfer their rights to me? And why would I pay them?
This would pretty much destroy all of the jobs in Hollywood and publishing. While I realize that it can be grating to watch a big corporation reap the millions, it’s important to remember that the big corporation usually spends a signficant fraction of those millions on salaries for artists who contractually transfer all of their rights to the corporation.
But what else is there to expect from the creator haters here.
Re: Job killer...
Not a well thought out post, bob. Tell me something… do you happen to own a car? A digital camera? A computer? I could go on but the point I’m trying to make is that it’s a natural fact of life that evolution does kill some jobs. Each of these things have killed jobs. But they’ve also created new ones.
“And why would I hire an artist, musician, writer or film maker to work on a project if that person can’t transfer their rights to me?”
Because just like a painter will always feel a need to paint, and a musician will always feel a need to play and write music… a business man will always feel a need to find ways to exploit them for money, even if it’s through licensing rather than owning the works themselves. The deals wouldn’t have to change much. Most of the money is made when something is new and fresh anyway.
“And why would I pay them?”
Because there’s still some profit to be made in there for you too.
“it’s important to remember that the big corporation usually spends a signficant fraction of those millions on salaries for artists who contractually transfer all of their rights to the corporation.”
What artist gets a salary? Musicians are paid in pennies and there’s no guarantees. What’s significant about that? A salary is guaranteed income.
“But what else is there to expect from the creator haters here.”
Perhaps you haven’t been following along because getting the creators better paid has been the gist of most of the conversation here while YOU seem to be more interested in seeing the big corps get better paid.
Re: Re: Job killer...
Odd. Perhaps you don’t know much about history but there are plenty of artists making salaries right now. There are staff writers at magazines, staff animators at studios, staff cartoonists at the New Yorker, staff cinematographers at networks. I could go on. All make salaries and all pay the rent.
If you ask me, many of the models like open source are more likely to lead to exploitation than closed worlds of intellectual property. What did Larry Ellison about open source software? That it’s just something he could take for free without giving anyone anything.
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I think the rights should belong to whoever has the most “value” from it.
Bob writes a jingle for Company X to use in a commercial. To Bob, that jingle is worthless and he should get paid his sum for his work but Company X gets the rights to it.
Now Bob says “no, I’m not giving up the rights and I want royalties for my grandchildren”. Company X says “bug off, we’ll get Joe to do it”.
Now clearly Bob has a jingle with no value because he was greedy and Joe makes some cash. Clearly a work for hire situation because Company X has more practical value to it than Bob and he should not have control over that.
If Bob makes a song that he profits from and Company X says that they’d like to use it as a jingle the value now belongs to Bob. Bob gets royalties and control over the usage because it has more value to him than Company X.
I think this is what makes the most sense.
Sweet to see this story on Techdirt. Thank you Mike.
To clear some stuff up.
We’re talking about intellectual property here. Copyright law simply states that once something has been put into fixed media it is no longer an idea. It’s an individual’s expression of said idea. For instance Windows and OSX are in their very essence the same idea. The CODE is the expression on that idea. Whoever develops that code has a right to keep or sell it or license it as they see fit. It is their’s to do with as they please. It also keeps other people from claiming it as their own. Much like plagiarism laws. It is also this ownership that gives the ‘author’ the leverage they need to monetize said property. The laws aren’t the problem. It’s the deep pockets exploiting the property unfairly. Limiting contractual terms might be a step in the right direction. But A’s things are going, soon we’ll be purchasing unlimited access to music like we do for netfix, etc. Licensing to television and film are the way artists will make money from sound recordings in the future. Doing away with copyright altogether is throwing the baby out with the bath water. Labels aren’t a bad idea. But a label operating in a manner that is not in the artists best interest is counter productive.
One final thing. The way the big four work is that only one out of every 20 albums is profitable for them. 19 of those albums make them lose money. The one profitable artist pays for the deficits of the others. The majors are really more like risk aggrigators.
Re: To clear some stuff up.
Doing away with copyright altogether is throwing the baby out with the bath water. Labels aren’t a bad idea. But a label operating in a manner that is not in the artists best interest is counter productive.
Right. If some artists are entering contracts where they transfer some or all of their copyright rights, and these contracts turn out to be “bad” for them for whatever reason, the solution isn’t to take away their ability to transfer these rights. The focus should be on creating better contracts, not on taking away the ability to contract altogether.
Re: Re: To clear some stuff up.
Why if they’ve had an innate ability to create?
What’s still coming up is the feeling that copyright seems to limit the playing field if it’s not done by the standards needed.
Re: Re: To clear some stuff up.
“Right. If some artists are entering contracts where they transfer some or all of their copyright rights, and these contracts turn out to be “bad” for them for whatever reason, the solution isn’t to take away their ability to transfer these rights. The focus should be on creating better contracts, not on taking away the ability to contract altogether.”
I disagree. Transferring rights even in the best scenario is only good for anyone for the short term. Now if copyright was reduced to it’s original terms I might feel differently, but at forever minus a day, it should be the creator and his/her family who reaps the rewards for the long term.
Better contracts are not going to just magically happen without some oversight or changing of the rules.
Re: Re: Re: To clear some stuff up.
>> Better contracts are not going to just magically happen without some oversight or changing of the rules.
Competition would help, and that is achieved by weakening copyright a fair amount.
>> Now if copyright was reduced to it’s original terms I might feel differently
It’s 1790. There are no planes, trains, or automobiles. We have steam boats and horse buggies. There are 3 million people in the US (vs 300 million).
There is no Internet.
Not only is it much quicker to make back investments today, but there is a greater opportunity cost because of all the lost potential by others.
In other words, we should soften protections and shrink time frames below their values in 1790.
Re: To clear some stuff up.
“One final thing. The way the big four work is that only one out of every 20 albums is profitable for them. 19 of those albums make them lose money. The one profitable artist pays for the deficits of the others. The majors are really more like risk aggrigators.”
This is purely poor business decisions on their part. The big four have put out nothing but crap for 20 years so is it really any surprise? Perhaps they should stop trying to “manufacture” pop bands and get some decent scouts out there to actually find some good and talented bands. American Idol sure ain’t the answer.
Re: Re: To clear some stuff up.
Crap sells and the big four are playing a game of profit. The appreciation of music is purely subjective anyway. To argue otherwise is asinine.
To clarify my own stance… The current system is flawed. The big four will either have to change their business model or die out. There should be a limit to the amount of time that it is acceptable to maintain rights for anyone wishing to use the property to make money. I.E. A label develops a band and cross collateralizes everything to pay off the band’s debt. The contract should stipulate that the label either makes back their investment plus a percentage then return the copyright like a venture capitalist, or after a certain amount of time with no success must return the copyright. There shouldn’t be a right to permanent ownership. It completely blocks out public domain (author’s life plus 70 years). Corporations don’t die and have the rights of an individual. In effect they own their 50% indefinitely. This completely unethical.
Re: To clear some stuff up.
>> Much like plagiarism laws.
Plagiarism laws don’t stop the spreading and use of information. These laws are about penalizing certain misrepresentation of facts. It is very mild and not interfering.
I can live with a small amount of copyright protection. Here are the main failures: last too many years; could potentially stop too many derivative works; fair use should include small degrees of commercialization (which would include unlimited sharing.. which btw should already be protected for learning purposes). The system also has much overhead in clearing material and resolving disputes, but this stops being an issue generally if you only require this (outside fair use) for significant commercialization.
>> The way the big four work is that only one out of every 20 albums is profitable for them.
I have heard that they play with numbers significantly.
Additionally, why should everyone pay a price so that one group can take ridiculous risks when so many lower risk methods exist in this particular case? We could give them ownership for 100000000000 years and allow them to bet everyone’s farms in new ventures, but that is not exactly smart, is it?
The Internet has lowered many costs tremendously.
Enabling too much risk leads to gambling that hurts society while allowing one group to reap the profits when otherwise there would be competition and lower costs.
Re: To clear some stuff up.
“One final thing. The way the big four work is that only one out of every 20 albums is profitable for them. 19 of those albums make them lose money. The one profitable artist pays for the deficits of the others. The majors are really more like risk aggregators.”
But doesn’t every company do that? How many of 3M’s products have been as successful as Scotch tape or Post-its?
The problem is that the labels make the decision about who will be get a contract and who won’t, and yet they try to get the artist to assume the lion’s share of the risks.
It’s like if 3M were to use Post-its as a bench mark for success and tell all of their other development teams with less successful products that none of them will receive their wages until they make something as successful as Post-its.
Re: Re: To clear some stuff up.
The problem is that the labels make the decision about who will be get a contract and who won’t, and yet they try to get the artist to assume the lion’s share of the risks.
False in a couple of ways.
First off, consider the labels as investors. Their money, their choices where to invest.
They take incredible risks. An artist flubs, it isn’t just that the artist doesn’t make much, for the most part the labels never recover the losses either. They aren’t shifting the risk, they are taking the biggest part of the risk, the initial outlay.
The band members of a flub can throw up their hands and go work at McDonalds tomorrow and make a living. The label investors are out whatever they fronted, with no way to get it back.
With high levels of piracy, that risk is even higher, because popular artists may not sell that well. An album that is leaked online can cost a huge amount of money (lost sales). There is all sorts of risk at play here.
Acting like the labels take no risk is ignorant.
Re: Re: Re: To clear some stuff up.
Artists take no risks because they can just work at McDonalds. Why isn’t this true for label investors?
Re: Re: Re: To clear some stuff up.
“False in a couple of ways.”
No.
“First off, consider the labels as investors. Their money, their choices where to invest.”
Sure.
“They take incredible risks.”
Why? Seriously, Why? If they are ‘incredible’ risks then it isn’t a good business decision to take them, is it?
“An artist flubs, it isn’t just that the artist doesn’t make much, for the most part the labels never recover the losses either.”
The only losses are the ones that the labels incur through wasteful practices. It’s dirt cheap to make recordings these days. The fact that they payed ridiculous amounts of money to have Timbaland sit in a 1500 dollar a day studio to rip off a home made recording made in Finland, and are now spending even more money on legal fees to protect this idiot from plagiarism and infringement charges is a perfect example of what I am talking about.
“They aren’t shifting the risk, they are taking the biggest part of the risk, the initial outlay.”
Then they should be more careful about the risks they take, no? This is business 101.
“The band members of a flub can throw up their hands and go work at McDonalds tomorrow and make a living. The label investors are out whatever they fronted, with no way to get it back.”
Then perhaps the ‘label investors’ should find something else to invest in.
“Acting like the labels take no risk is ignorant.”
I didn’t say they took no risk, I said that they get the artist to consume the lion’s share of the risk. And given that in most standard major label contracts the label makes back it’s money long before the band recoups, I think that this is an accurate way of putting it.
But hell, I agree with you. It’s almost impossible for the recording industries to make money in this environment. Music is a bad investment. Time to stop whining about it and find another way to make a living.
I here that McDonald’s is hiring. 😉
“>> Better contracts are not going to just magically happen without some oversight or changing of the rules.
Competition would help, and that is achieved by weakening copyright a fair amount.”
To a certain degree I agree about the competition, but I think it would apply more to a more experienced band with a little more familiarity with contracts than say some newer garage band looking for their first contract. Labels aren’t exactly beating down their doors and they’d be more likely to sign when the first person makes them an offer, and there are many bands who hit the scene, have a great debut, then seem to lose it and fade away. They get raped in the first contract and might not get that second chance to shop around.
On your second part about copyright, I agree completely.
They make so much profit off one artist that they can afford to have 19 failures and still make profits