Jesse Townley's Favorite Techdirt Posts Of The Week

from the my-name-in-lights dept

This week's favorites mostly fall into 2 categories: Big Picture stories and "[fill-in-the-blank] Behaving Badly." The combination of these approaches to tech-related news is what keeps me checking Techdirt every week. Plus, I like seeing my name in lights, ha ha ha…

A short introduction: I am the General Manager of Alternative Tentacles Records, a small underground, punk, twang, indie, and mostly left-wing record label that is owned by Jello Biafra. AT began in 1979 with this single by the Dead Kennedys. We are not a member of the RIAA, A2IM, or any other music industry group. My opinions do not represent those of Jello Biafra or any other AT artists or staff. They're based on my experiences as a band member on various indie labels and working at a couple of labels, as well as being a DJ for 20 years on the excellent local college radio station KALX Berkeley. Also, as GM of a small label, I keep a very close eye on technology--our website is embarrassingly hokey, but we've been expanding to Soundcloud, blogs, Facebook, Twitter, and doing our best to keep our reputation clean and our fans loyal. By the way, Connect with Fans (CwF) and give them a Reason to Buy (RtB) has always been the rule in punk rock. Without your reputation, you're nothing. If your rep goes down the tubes, you're a sellout, a has-been, and/or a rip-off artist. Sure, there'll always be some ignorant punters who will support you, but the vast majority will shun you.

First up is a Big Picture story that is positive, in a Techdirt kinda way. If Piracy Is So Devastating, Why Are We Seeing An Unprecedented Outpouring Of Creativity? from Tuesday. It's an important reminder that people are creating content and uploading it to various social networks & platforms every second. But the piece of this that rings wrong to my ears is the glib jab at "copyright industries and cultural commentators"-- sure a twitter novel or YouTube webisodes are new, "real" content, but it's not a stretch to make a value judgement that my 10 word Facebook post is not as creative as, say, the latest album by your favorite band. (Strike that, that depends on how witty I am and which band you love! [/tangent]) Even hinting at an equivalency is a sour note in an otherwise observant, thought-provoking post.

Another Big Picture is half-upbeat, half-depressing--it's the Constitutional one titled Yes, Copyright's Sole Purpose Is To Benefit The Public. I'm enough of a civics geek to have strong emotions about the Constitution & misunderstandings of it bug me to no end. (As you may imagine, my head hurts when I read about the latest attacks on the Constitution by particular Arizona sheriffs, the last few Presidents, various Congress people, and too many others.)

I wish the following paragraph was required reading for anyone intending to post here:
"I have trouble understanding why so many people... have so much trouble separating out the purpose from the method. Yes, the clause grants the power to Congress to create copyright law -- but for a specific purpose: "to promote the progress of science." Nowhere does it suggest, nor even hint at, the idea that copyright's purpose is to benefit creators. Rather, that is the method. So, to claim that the protections of the author are greater than or even equal to the benefits to the nation, is a clear flip-flopping of the method with the purpose. Of course, in doing so, it not only flip flops the method and the purpose, but it completely distorts the nature of copyright law, and leads to maximalist-style positions, where absolutely no consideration is given to how the public benefits (or, more importantly, is hurt) from specific changes to copyright law."
A quick negative Big Picture post before moving onto the truly trash-talking posts- er, "[fill-in-the-blank] Behaving Badly." It's related to the previous one but is international in scope, which I think is a key strength of Techdirt -- stepping outside of whatever's dominating the US/North American headlines/social media networks.

It's summed up by the title, Just Because It's Now Cheaper And Easier To Spy On Everyone All The Time, Doesn't Mean Governments Should Do It! It's a nice summary of an actual "slippery slope," complete with points on that metaphorical slope where the slide into a surveillance state could've been halted if people had realized what was going on, if there was oversight by a part of the government that wasn't law enforcement: Could've, could've, didn't.

(And that's exactly why my music industry comrades' "slippery slope" argument falls down. They assume that there are no possible checks on technology's mad slide towards free everything all the time besides brute & ultimately useless government regulation. The fact that artists and labels like me are resisting the RIAA & A2IM's restrictive view of copyright is key--we have to make a living too, as artists and as small companies distributing creative works. We're not naive idiots & are figuring out ways to keep our fans excited and our bands music out in the world in multiple formats.)

Now for the "[fill-in-the-blank] Behaving Badly" stories. Let's start w/ the government. A couple made me see red, in part because I, like most non-rabid Republicans, was hopeful that putting a Constitutional law professor into the White House would be enough to halt the Bush 43's destruction of civil rights after 9/11/01. Once Again, The Administration Vindictively Charges A Whistleblower As Being A Spy is the kind of story that illustrates that in key ways Ralph Nader's famous equivalency of Republicans & Democrats was accurate. (Don't get me wrong, overall Bush 43 was worse for civil rights because he attacked social freedoms and labor rights as well.)

This story is especially frustrating because it's going after a brave government worker who blew the whistle on frickin' TORTURE practiced by our government. Guh.

The common sense civil libertarian in me also bristled at the New York Convinces Game Companies To Kick Registered Sex Offenders Off Gaming Services story. As a species, we've gotta stop hyperventilating about the worst of the worst and realize that, as the post points out, a sex offender could be a lot of people. Someone caught nakedly, drunkenly pissing in an alley (not me, I swear!) or a performer whose act includes nakedness, or a couple of teens having oral sex, or a teen receiving a naked picture of their s.o. on their phone are all potential sex offenders, depending on whether the local D.A. is running for reelection. This kind of silly political posturing just embarrasses everyone involved and diverts attention from more worthy government efforts (see: create jobs, feed hungry, battle foreclosure crisis).

Now to a favorite target of Techdirt's, the music industry, of which I'm a part. As a community radio DJ, I know first hand the idiocy and unintended consequences of the DMCA. So when the big boys dive back into the royalty rates, I get really nervous and start ducking for cover. The idea of different royalties and different types of royalties being required based solely on the delivery system doesn't make sense, even though my day job depends on income from creative works and you'd think that every little bit helps. Bzzt! Wrong. Even if we did get paid some of these royalties (ha ha ha!) it'd be strangling a proven promotional outlet (radio) in order to squeeze out a few nickels. Music Industry Creates New Royalty Rates is the kind of dry analytic discussion of the Copyright Royalty Board that you have to be a special breed of geek to understand. And the unintended consequences of possibly requiring locker services to pay for us consumers to store music we legally bought in their services could be huge. And for us content creators -- why would my band have to pay extra to Soundcloud to stream a song we wrote? This is a detail that needs to be kept on top of.

I'm a fan of sampling and remixing and reusing culture, so I always love it when there's a cool new mash-up or play on words. That's why the next "Businesses Behaving Badly" is Dolce & Gabbana Sue Dolce & Banana. I have none of the resources of Dolce & Gabbana, but if a veterinary supply company wanted to market neuticles called "Alternative Testicles," I'm pretty sure we'd delighted and hype them as a clever twist on our established brand name.

The last story I wanna highlight is a rare first-person account from an artist, A Perspective On The Complexities Of Copyright And Creativity From A Victim Of Infringement by Erin McKeown on her experiences with protecting her creative work and how her ethics and the law intersect in her ongoing case in Eastern Europe.

Her conclusion is a key part of the approach that artists and creative companies should be taking in this scary, new world.

"I'll say this: if you asked me, we might have worked something out. When I found you, we might have worked something out. Who knows, maybe we could have advanced the conversation around copyright and made a radical contribution toward a different type of economy. Instead, it will drag on in court. And I will fight it in court as long as I have to."
More cooperation, more communication, more collaboration, less soul-draining legal fights.

Rock on,
Jesse Townley
General Manager
Alternative Tentacles Records



Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Spaceman Spiff (profile), Apr 14th, 2012 @ 2:09pm

    Clap! Clap! Tip of the Hat!

    Great posting Jesse! I vote you best TD post of the week! :-) Most enjoyable reading, and very good writing, in my opinion (creative writing and English literature major in college)... I look forward to more missives from you.

     

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    Anonymous Coward, Apr 14th, 2012 @ 3:23pm

    Re: Clap! Clap! Tip of the Hat!

    I second that!

     

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  3.  
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    Anonymous Coward, Apr 14th, 2012 @ 4:03pm

    Jesse, thank you for getting the part about the "new" creativity. Quantity is never a good substitute for quality. It's the difference between a misting rain and a swimming pool of water - you can only really swim in one of them.

     

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    c0c0c0 (profile), Apr 14th, 2012 @ 4:06pm

    I listen to mostly industrial music (Some have been on Alternitave Records like Lard), and it gets very very little airplay. I have been to many shows and it amazes me that for a genre that is not mainstream always seems to fill venues. Granted they are not stadiums, but I have never been to an empty show. It is pretty sad that artists that make their money mostly off of concerts/merch needs to pay money to artists that already makes tons off of filling stadiums and selling millions of records. A lot of the bands I listen to also uses samples from other music/movies/tv as a part of their music, inspration, and creative processes. I know of one song that used a lot of sampling from horror movies, and the song made it to the album, but the video couldn't be officially released because some of the samples couldnt' get released from the copyright holders.

    Jesse, your label is one that has artists that don't normally get airplay, I am sure that you have a different agenda than the majors, do you think that is why you are anti spoa/dmca? Do you think your part of the buisness is more lenient on mixtapes and downloading because the money is made more on the shows and expanding the fanbase that way? I say that because I didn't find out about industrial music until I was given a few mixtapes of bands, and then started buying tapes of the artists that I liked. Is word of mouth a better buisness model for you than trying to get airplay for the artists you represent?

     

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  5.  
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    Anonymous Coward, Apr 14th, 2012 @ 9:21pm

    "Yes, Copyright's Sole Purpose Is To Benefit The Public."

    To be accurate it should read "Yes, Property's Sole Purpose Is To Benefit The Public."

     

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    Karl (profile), Apr 14th, 2012 @ 10:41pm

    Re:

    To be accurate it should read "Yes, Property's Sole Purpose Is To Benefit The Public."

    Not really, at least not under the theories the Founding Fathers held.

    In the U.S., a property right is pretty much an inalienable right:

    Property is surely a right of mankind as really as liberty. [...] The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.
    - John Adams

    The true foundation of republican government is the equal right of every citizen in his person and property and in their management.
    Thomas Jefferson to Samuel Kercheval

    Contrast this with Thomas Jefferson's portrayal of patents:
    Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.
    - Thomas Jefferson to Isaac MacPherson

    So, most property rights would exist without the federal government's protection. They are not "statutory rights," but fundamental rights; they are not created by the government, but sanctioned by it. "Property interests, of course, are not created by the Constitution" (Board of Regents v. Roth).

    This is not true of copyrights and patents. Those are only statutory rights, that were created entirely by the Constitution; there is no common-law copyright, and unless Congress creates it, it does not exist. "Congress, then, by this act, instead of sanctioning an existing right, as contended, created it" (Wheaton v. Peters).

    Furthermore, "the progress of science and art" is a "Constitutional requirement" for copyright (Feist v. Rural). That's certainly not true for real estate, or for most forms of property.

    I don't know if you're claiming that copyright is just as much a "natural right" as the right to own real estate; or if you're claiming the opposite (that any ownership, even of real estate, must be for the public good just as much as copyright). But, here in the U.S. at least, it's not true.

     

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    Karl (profile), Apr 14th, 2012 @ 10:42pm

    Nice

    Jesse: You should write here more often.

     

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    Mike Masnick (profile), Apr 15th, 2012 @ 1:41am

    Re: Nice

    Jesse: You should write here more often.


    Agreed. And same goes for you too, Karl. Another fantastic comment above this one.

     

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    Anonymous Coward, Apr 15th, 2012 @ 8:01am

    Re: Re:

    It should be understood that "property" is a legal construct, and represents the right of persons or persons to exercise possessory interest(s) over a "thing" ("res" in the parlance of law) to the exclusion of all other persons. Unauthorized interference with that possessory interest is protected by law. Were it not for law, possession of property would quickly devolve into
    "might is right".

    Unfortunately, the exercise of an exclusive possessory interest in subordinate to the right of the sovereign to dispossession, though to some extent this is ameliorated by the 5th Amendment. Also, unfortunately, the legal standard applied under US law for the taking of property is quite low, with the courts generally deferring to the decisions made by the executive and legislative branches at the federal and state level. In the case of states, the power to take property generally extends to all of its political subdivisions (i.e., counties, municipalities, special districts such as Water Management Districts, etc.).

     

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    John Fenderson (profile), Apr 15th, 2012 @ 9:12am

    Re: Re: Re:

    Were it not for law, possession of property would quickly devolve into "might is right".


    Actually, possession of property already has devolved into "might is right." With enough money & political clout, anything you own can be seized at any time without any wrongdoing on your part. The only difference is that people have to let the government hold the guns against your head instead of doing it themselves.

    If you aren't wealthy or powerful, the law has largely failed in this purpose. If you are wealthy or powerful, the law is the weapon you use to steal with.

     

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    Anonymous Coward, Apr 15th, 2012 @ 9:35am

    Re: Re: Re: Re:

    You are not that far off when it comes to the exercise of eminent domain over real property. Mrs. Kelo, in the matter of Kelo v. City of New London, learned this only too clearly when 5 justices on the Supreme Court upheld the taking of her home in order to facilitate private development. Amazingly, 4 of the 5 are generally identified as being the liberal-wing of the court, with Justice Kennedy adding the 5th vote to their bloc.

    Assuming property is a "liberty" interest, it has always struck me as odd that those who are categorized as being inclined to favor the "little guy" appear to think otherwise in eminent domain matters, and those who are categorized as being in favor of "big business" think otherwise.

     

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    Richard (profile), Apr 15th, 2012 @ 10:21am

    Re: Re:

    To be accurate it should read "Yes, Property's Sole Purpose Is To Benefit The Public."

    Not really, at least not under the theories the Founding Fathers held.


    Actually, thinking a bit deeper than this - and ignoring the undue deference sometimes given to the founding fathers (treating them the way evangelicals treat the Bible) it is quite reasonable to view all property rights as being for the benefit of the public.

    One can be quite austere and utilitarian about such matters.

    Property rights, when implemented in a way that is generally regarded as fair, benefit everyone by avoiding the waste of effort otherwise required in defending one's possessions.

    No government ever regarded them as absolute and inalienable however - since all governments implement taxation schemes.

    Religion and philosophy and the place for the concept of inalienable rights - not politics or economics.

    I can only speak for my own religion and it certainly regards property as not something one should be too bothered about. Regarding property rights as purely utilitarian is quite consistent with it.

     

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  13.  
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    Anonymous Coward, Apr 15th, 2012 @ 11:49am

    Even hinting at an equivalency is a sour note

    You must not read this silly blog as often as you infer, as it hints at such inanity all the time.

     

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  14.  
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    Karl (profile), Apr 15th, 2012 @ 1:53pm

    Re: Re: Re: Re: Re:

    You are not that far off when it comes to the exercise of eminent domain over real property. Mrs. Kelo, in the matter of Kelo v. City of New London, learned this only too clearly when 5 justices on the Supreme Court upheld the taking of her home in order to facilitate private development.

    That was an interesting case. The question was whether the government's actions were considered a "public use" of the property. If it was, it would be subject to the Fifth Amendment, which allows the government to take property, so long as the property owners are compensated. If it was not a public use, it would be unlawful for the government to take it at all.

    The Kelo decision is actually not that surprising. When the government takes property, it has no choice but to provide a benefit to private individuals. For example, the government doesn't own construction companies; it subcontracts the building projects to private construction companies. Additionally, lots of court cases have shown that "public use" is about as wide a definition as you can possibly get.

    Having said that, it was pretty clearly a mistake, if not in terms of law then in terms of "public use." Pfizer closed its plant in New London (said plant was the impetus for taking the land); the redeveloper failed to get financing for the project; and none of the supposed jobs or income ever materialized.

    None of the property was deeded back to the owners, so the property stood vacant and abandoned. Right now it is being used as a dump for the garbage from Hurricane Irene.

    The only good thing to come out of it, is that the Federal Government, and several states individually, enacted statutes that expressly forbid this kind of situation.

     

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  15.  
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    Karl (profile), Apr 15th, 2012 @ 2:06pm

    Re: Re: Nice

    And same goes for you too, Karl.

    Ha, the last thing I need right now is another excuse to avoid studying.

     

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  16.  
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    Anonymous Coward, Apr 15th, 2012 @ 2:28pm

    Re: Re: Re: Re: Re: Re:

    Part of the problem is that "public use" has been interpreted to mean "public purpose", which is much broader.

    Yes, Pfizer built its plant, which it has since closed. Virtually nothing else was ever constructed on the rest of the property which was taken by eminent domain, so it sits empty and a constant reminder of what happens when the power to promote local development is placed in the hands of municipalities bent on maximizing future tax revenues.

    Certainly, many, if not most, states enacted laws cutting back on the the scope of eminent domain power. Unfortunately, a law today can quickly become a former law tomorrow. Even under the current laws, it is so easy to by-pass their limitations that restrictions on the power of eminent domain is largely illusory. If they want property they can easily figure out a way to take it without violating the law.

    One of the most vocal opponents of eminent domain power is Ilya Somin who posts regularly at the Volokh Conspiracy. Ilya, unfortunately, and like most others, tends to focus on the "public use" part of eminent domain. I, however, prefer to focus on the "compensation" part of the equation. It is easy for a governmental agency to say "I want it!" It is quite another thing if, however, the compensation part has been amended to force them to ask the question "It costs THAT MUCH!?!?!?". Bringing fiscal reality to the fore eliminates, in my view, many of the problems associated with willy-nilly takings as seems to be the current case.

     

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  17.  
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    Jesse Townley (profile), Apr 15th, 2012 @ 3:21pm

    Re: anti sopa etc

    This is just my personal take on things, not the label's. (We don't have an official stance)

    Some equally independent-minded labels are very much in favor of things *like* SOPA, though I don't know anyone who's pro-DMCA who understands how it's being manipulated by the RIAA. It's not a function of our size or audience at all, though you'd think it would be.

    As for airplay, if this was 10 or more years ago, I'd answer that college & community stations were very important to getting our bands out there. Now, they're still important but a lot more air in the room is being taken up by web-based promotion. Commercial airplay has rarely even been an option.

    So community radio airplay & word-of-mouth & touring have always been key for us. (Now a lot of that airplay is online)

     

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  18.  
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    Anonymous Coward, Apr 15th, 2012 @ 5:00pm

    Re: Re: Re: Nice

    I second that. I post way too much.

     

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  19.  
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    Karl (profile), Apr 15th, 2012 @ 8:38pm

    Re:

    Jesse, thank you for getting the part about the "new" creativity. Quantity is never a good substitute for quality.

    This argument is hardly new. In fact, it was particularly viciously leveled against the punk scene in the 80's. "They're just a bunch of kids who don't know how to play their instruments."

    And, frankly, those accusations were true, at least for the majority of punk bands. The thing is, without the incredible democratization of underground music that happened because of it, you wouldn't have half of the great bands that started out around that time. I don't just mean bands like the Dead Kennedys or the Misfits; I'm also talking about Big Black, Sonic Youth, Swans, Nirvana, or R.E.M. It could be argued that underground metal wouldn't have been possible, meaning we'd have no bands like Metallica. You certainly wouldn't have had bands like Tragic Mulatto, Dog Faced Hermans, the Butthole Surfers, or the Phantom Limbs.

    It's a mistake to think of quality and quantity opposing each other. In fact, quantity leads to quality.

    That's the funny thing about a misting rain. If enough of it falls, you're going to get deep pools of water.

     

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  20.  
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    Anonymous Coward, Apr 15th, 2012 @ 9:49pm

    Re: Re: anti sopa etc

    Frankly, I believe that "manipulation" is inaccurate. Given that the burden of notice rests on rights holders, the sheer number of works that are believed to be infringing and for which a notice is sent, the fact that in many large organizations those who are assigned to transmit DMCA notices do not have the ability to perfectly be aware of what others within their organizations may have been up to (marketing is a prime example of a group that many times ignores or is ignorant of company policies), etc., it should come as no surprise that mistakes will be made. However, there are published studies (unfortunately, I do not have cites) supporting the position that such mistakes are a very small percentage of all notices.

    Might some abuse the system? Of course, but I submit that such abuse is nowhere near the amount that anti-DMCA parties state. In other words, the system works relatively well, but like any systems practiced by ordinary persons there will be mistakes made. Ever bought a car, or a home, of a computer, or other complex device that was perfectly manufatured? If only we were so lucky.

     

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  21.  
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    Fotis, Apr 16th, 2012 @ 1:36am

    Thanks

    Great post, that's some serious food for thought!
    Thanks!

     

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  22.  
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    Jesse Townley (profile), Apr 16th, 2012 @ 8:32am

    Re: Re: Re: anti sopa etc

    Sorry, I should've been more specific- the parts of the DMCA that relate to terrestrial and on-line radio. The whole royalty process through the Librarian of Congress, the machinations of the National Association of Broadcasters, the shameful collaboration of the Corporation for Public Broadcasting, etc. Those "representatives" of radio almost deep-sixed their tiny non-commercial relatives at the behest of the RIAA.

    AT uses DMCA take-down notices for blogs that post full-albums of our artists. If it's clearly a fan blog we usually contact them beforehand- especially for the KBD/super-obscure reissues. We say, "Hey, thanks for keeping this band's music alive, we've just released a great sounding version of this and other songs by this band and the band is getting royalties. Please replace the d/l link with a link to their record on our website." It works 95% of the time.

    Sorry for the misunderstanding!

     

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  23.  
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    Jesse Townley (profile), Apr 16th, 2012 @ 8:34am

    Re: Re: Nice

    Thanks guys! (blushes)

     

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  24.  
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    Karl (profile), Apr 16th, 2012 @ 6:38pm

    Re: Re: Re: Re: anti sopa etc

    If it's clearly a fan blog we usually contact them beforehand- especially for the KBD/super-obscure reissues. We say, "Hey, thanks for keeping this band's music alive, we've just released a great sounding version of this and other songs by this band and the band is getting royalties. Please replace the d/l link with a link to their record on our website." It works 95% of the time.

    This exactly how those blogs should be handled.

    The fact that the blogs will comply 95% of the time, shows that the vast majority are not "freetards" but music fans, who just want to share what they love with others.

    There are a ton of blogs like that out there, focusing on obscure (or, at the very least, under-appreciated) and out-of-print releases. I go to a lot of them, because it's really the only way you can get certain releases (especially noise and experimental). And even the most anti-piracy musicians I've ever met have zero problem with them, especially regarding out-of-print albums.

    Pity half of them shut down when the Megaupload seizure happened.

    This is what I really despise about the framing of all these copyright laws. The defenders of things like the website seizures, focus entirely on the (entirely alleged) wrongdoings of the sites themselves, their business models, or whatever. But the people who will be harmed by this are not commercial infringers, but ordinary fans.

     

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