One thing that's always amazed me is how the record labels ever got away with making it a standard thing that musicians hand over their copyrights to the label entirely. Sure, the labels put up some risk capital and handle part of the business side of things, but to totally give up all of your copyrights? In the tech industry, we've got lots of experience with risk capital, but venture capital deals (even as many entrepreneurs bemoan the deal terms) never go as far as record label deals in basically claiming 100% equity ownership in exchange for a piddly royalty (and only after you pay back the initial loan). But, of course, thanks to a broken system, musicians basically had little choice in the past but to sign a record label deal -- and with just a few large players in the space, giving away your entire output was considered "standard."
But, that leads to some troubling results. We've already seen how artists have complained about their own works being used in suing fans. These artists feel helpless about this legal campaign that attacks their fans, potentially creating significant problems for any attempt by those musicians to connect with fans and earn a living going forward.
Take, for example, the tragic story of the band All Shall Perish, as chronicled on TorrentFreak. Apparently, the band's German label handed over the rights to sue to a Panama-based copyright troll who is now suing people in the US, contrary to the band's own wishes. The band, of course, recognizes that suing dozens of its biggest fans is not a good idea, but seems powerless to stop things.
“The band’s attorney made it clear to the licensing people [at Nuclear Blast Records] that the band wanted no part in lawsuits against fans. The industry is changing, illegal downloading is troublesome for bands and of course, for record labels, but whatever the solution will be – streaming, subscription, Kickstarter, new ways of looking at it entirely, whatever comes about – the band and I are in agreement (as is their lawyer) that SUING MUSIC FANS SURE ISN’T IT,” Downey told TorrentFreak.
Apparently, after a lot of pressure from the band, the label claims it will tell the trolling operation, World Digital Rights, to dismiss the lawsuits. The band is now trying to regain control of its copyrights, and is saying that it would much prefer to protect its fans rather than sue them:
“The band, their attorney and myself have and will continue to take any steps to protect their fans, yes, even those who file trade,” Downey told us. “The band would prefer that their fans legally purchase, stream or otherwise enjoy their music. But they definitely have not, will not and do not wish to sue their fans.”
from the doesn't-that-violate-the-prime-directive? dept
When you hold the copyright to something really popular—a true cultural phenomenon—the rules tend to change a little bit. The sheer size of the fanbase means stomping out every instance of infringement is completely unrealistic, so creators like George Lucas often tolerate or even support fan fiction. Since creators and companies in this situation tend to just pick and choose where to enforce their rights, their actions are usually inconsistent (Lucasfilm also shut down a fan-organized movie marathon).
Last fall an unused script for the cult 1960s television show turned up after being forgotten for years. Its author, the science-fiction writer Norman Spinrad, announced it would become an episode of a popular Web series, “Star Trek New Voyages: Phase II,” which features amateur actors in the classic roles of Capt. James T. Kirk, Mr. Spock and other crew members of the starship Enterprise.
But then another player stepped in: CBS, which said it owned the script and blocked a planned Web production of it.
There are a lot of details that are important to understanding what happened. For one thing, Phase II is not some slapdash production—the show has involved several Star Trek alumni (including Walter Koenig and creator Gene Roddenberry's son Eugene) both on and off camera, and the creators have enjoyed an open and supportive relationship with CBS. They found the contested script through Spinrad, the original writer (but not the copyright holder), who had been selling it online since he discovered a copy of it last year. CBS also had a brief dispute with Spinrad, which was settled with the removal of the script (and an agreement to make no further comment).
Spinrad and Phase II creator James Cawley don't seem bothered—though, if they were, they wouldn't/couldn't say so, Spinrad because of his agreement and Cawley because of his desire to stay on good terms with CBS. Meanwhile, the fans (who were excited by the prospect of a long-lost script) get nothing. So what exactly did CBS accomplish here? Spinrad's final comment about the dispute makes vague references to their plans to license the script, but it's still not clear why they couldn't let Phase II produce it anyway, especially considering they have supported them in the past. As people have pointed out, this isn't even the first time Phase II used an abandoned Star Trek script: the 2007 episode "Blood and Fire" was originally pitched to The Next Generation in the '80s. There may be a technical difference that some commentators are missing there, in that it seems like "Blood and Fire" was a rejected pitch while this new script was shelved during production, but exact details are hard to pin down. Either way, nobody can tell why CBS is suddenly exercising their rights over this one script when they have been so tolerant of Phase II in the past. Their statement doesn't offer much:
“We fully appreciate and respect the passion and creativity of the ‘Star Trek’ fan and creative communities,” CBS said in a statement. “This is simply a case of protecting our copyrighted material and the situation has been amicably resolved.”
Amicably? Maybe. Beneficially? Not as far as I can tell.
Having recently lost its attempt to blame Justin.tv for the fact that some of its users stream Ultimate Fighting Championship matches, UFC's parent company Zuffa is moving ahead with its strategy of going after its fans directly. This isn't entirely new. A few years ago, the company announced plans to sue fans, even though it admitted at the time that the costs of such lawsuits would outweigh any benefits. Of course, that alone should make you wonder what Zuffa management is thinking, but it seems that their entire thought process is "piracy bad, must stop," and that's about it.
The latest move is that Zuffa was able to get user information from Greenfeedz.com, one of the websites that let people watch unauthorized feeds of UFC's pay-per-view (PPV) events. This plan is very reminiscent of when DirecTV ran one of the first of these extortion-like shakedown campaigns by getting the list of customers from a seller of smart cards (which had other legitimate purposes) and then demanding $3,500 from each of them. That action did not go well for DirecTV, leading to multiple lawsuits, including from former employees, and the company eventually dropped the program altogether. Stunningly, Zuffa's lawyer compares his situation to the DirecTV situation... but seems to ignore the massive backlash it created, the legal pushback and the eventual dropping of the program.
Of course, as we also noted in that post a couple years ago about Zuffa's plan to sue fans, huge numbers of people are perfectly willing to pay large sums for the PPV fights, and the numbers seem to keep growing. It seems to depend more on who's fighting rather than whether or not unauthorized streams are available. That said, in explaining why they're going to sue their fans, Zuffa's legal boss, Lawrence Epstein, said that he believes the company has an obligation to sue the fans.
For starters, the UFC seems to believe that there are two types of MMA fans: the type who buys the pay-per-views, and the type who watches them illegally. In reality, the line between those two groups is probably a lot blurrier than Zuffa realizes. Chances are very good that some of the people who have streamed events in the past have also bought them, and probably will buy them again at some point in the future. Maybe they only pony up the $55 for the pay-per-view when the card is good enough, or when they can get friends to split the cost with them. Maybe they stream it when they only care about one or two fights, or when they’re simply too strapped for cash to afford it.
My point is, not all piracy is created equal, at least on the receiving end, and attacking viewers as if they are distributors could do much more harm than good.
For instance, picture a 19-year-old college student just about anywhere in America. He wants to see a UFC event, but maybe he can’t even afford basic cable, let alone a pay-per-view. He can’t go to a bar to watch the fights (unless he has a convincing fake ID), so he stays home and finds an illegal stream on his laptop, because he can't stand to miss the big fight. Then, months later, he gets sued by the UFC.
What’s going to happen when that kid graduates, goes to work, and finds a job that will allow him to enjoy luxury expenses like pay-per-views? You think he’s going to become a loyal customer of the company that sued him back when he was struggling to buy books? You think he’s going to buy a ticket to see a UFC event when it comes to his city? You think he’s going to buy merchandise or watch free events or patronize the UFC in any way after that experience? Maybe. Or maybe he’ll hold a little bit of a grudge. You know, for the rest of his natural life.
That's the amazing thing about so many anti-piracy attempts. They simply don't take into account the actual situation, and what the real costs and benefits of their actions are. They just think "piracy bad, must stop." They refuse to accept that those who are infringing may have reasons for doing so beyond "I'll never give any money to these people ever." Not actually understanding that seems like a huge strategic blunder. For all the talk of having an "obligation" to sue fans, I would think that the company's officers actually have an obligation to the company's shareholders, which means not making braindead moves that actually hurt the bottom line. And yet that seems to be the ultimate plan here.
You may remember that back in December, CD Projekt (the developers of The Witcher 2) had been sending out legal shake down letters to suspected copyright infringers. This move was not received very well by the gaming press and more importantly CD Projekt's very fans. The major concern over this was that it is nearly impossible to prove that a person illegally downloaded the game based off just an IP address. We now learn that CD Projekt has listened to its fans' concerns and has ended its shake down program. In a letter sent to the gaming press, CD Projekt states:
Being part of a community is a give-and-take process. We only succeed because you have faith in us, and we have worked hard over the years to build up that trust. We were sorry to see that many gamers felt that our actions didn't respect the faith that they have put into CD Projekt RED. Our fans always have been and remain our greatest concern, and we pride ourselves on the fact that you all know that we listen to you and take your opinions to heart. While we are confident that no one who legally owns one of our games has been required to compensate us for copyright infringement, we value our fans, our supporters, and our community too highly to take the chance that we might ever falsely accuse even one individual.
So we've decided that we will immediately cease identifying and contacting pirates.
Too many entertainment, and in this case gaming, companies, get so caught up in fighting piracy that they ignore the concerns of their fans. As of December, it had looked as if CD Projekt, the poster boys of DRM-free gaming, were headed down that path as well. Based on this letter, they have seen the folly of that path and have decided to put their fans first. I am so glad to hear this news. You will never win fans for life by brushing aside their concerns. I am also glad to see that CD Projekt has recognized the damage that false positives can have on a community.
While the concerns of copyright infringement are a very real thing, and CD Projekt has some idea of its scope, it has never resorted to DRM in order to handle the problem. It stands by that business decision. This promise to stop pursuing suspected copyright infringers is the next step toward building on the good will of its fans. While it may take time for some former fans to forgive, they will be happy with this change. However, CD Projekt wants to make sure it is clear. This move does not mean that it condones copyright infringement:
Let's make this clear: we don't support piracy. It hurts us, the developers. It hurts the industry as a whole. Though we are staunch opponents of DRM because we don't believe it has any effect on reducing piracy, we still do not condone copying games illegally. We're doing our part to keep our relationship with you, our gaming audience, a positive one. We've heard your concerns, listened to your voices, and we're responding to them. But you need to help us and do your part: don't be indifferent to piracy. If you see a friend playing an illegal copy of a game--any game--tell your friend that they're undermining the possible success of the developer who created the very game that they are enjoying. Unless you support the developers who make the games you play, unless you pay for those games, we won't be able to produce new excellent titles for you.
I think that is a positive message to express. This is a human response to the problem of copyright infringement. We have seen such pleas succeed in turning a pirate into a paying customer, and there is no doubt that this honest plea for support will garner CD Projekt more sales and more fans. This honest apology and plea for support has certainly made a fan for life out of me.
A few months back, we wrote about how famed singer Drake was angry at Universal for sending takedown notices and getting his leaked tracks taken down. Given Drake's history of building up a lot of popularity through releasing mixtapes, it's not a surprise that he realizes that getting content spread far and wide creates more benefits than it does "downsides." Now he's confirmed that point of view even further, tweeting his somewhat enlightened views on file sharing:
If you can't see it, it says, "Listen, enjoy it, buy it if you like... and take care until next time." In other words, don't attack fans for wanting to hear and share your music, learn to recognize that these are fans, and they have their reasons for doing what they do. But connecting with the artist directly also builds up significantly more goodwill. It's nice to see someone of Drake's stature willing to speak up about these things. The thing that he seems to realize is that even if people are "pirating" leaked material, that's no reason why they might not give him money in the future -- and one way to make that more likely is to really connect with fans. Threatening them with lawsuits is kind of the opposite of connecting, and it's backfired on more than a few artists.
Hopefully more artists will make their position on such things much more clear than it is today.
You would think, given the reaction to Lars Ulrich and Metallica from when he went all crazy on people who shared files, that other famous acts would be a bit more clued in. Not so with Scott Ian, the guitarist for Anthrax. In a recent interview, he spends a big chunk complaining about "theft" and how many more records the band used to sell in the past. And he keeps building up steam until it's a full on rant, complete with falsely claiming it's "theft" (over and over and over again) and comparing it to drunk driving... including claiming that if you're caught downloading unauthorized music, you should lose your internet access completely:
You lose your Internet. That's it, no more Internet for you. Seriously! Like you drive drunk, you lose the privilege of driving. You download illegally, you lose the privilege of having the Internet. The punishment fits the crime. Why these service providers don't stop the torrent sites and put a consequence on this, I have no idea. Everybody complains about the trillions of dollars being lost, but nobody does anything about it. Believe me, if I could do something about it, I would.
First off, downloading a single song and losing your internet access permanently is "the punishment fits the crime"? Really? As for why service providers don't stop torrent sites, it's because (a) the law is a bit more complex than Ian seems to understand, (b) censoring the internet because some search engines might possibly be used for bad things (while they can also be used for legal things) is a dumb idea and (c) because stopping torrent sites won't do anything, since they'll just pop up elsewhere.
Ian doesn't seem to have any interest in thinking through the logical fallacies of his argument. As far as he's concerned, there is nothing to discuss:
There is no argument. I'm not even going to get into that conversation. You're stealing! It's stealing, that's what it is. It's not free for us to make these records. These records are on sale in many, many places where you can pay your money to buy the product that we are selling. Anything outside of that is stealing. There is no conversation to be had. There's no, "Well, I just wanted to check it out, and then I liked it so I bought the record." I don't give a fuck. It's stealing. Everyone can say that, "I just wanted to check it out," or "There's no way for me to get music where I live." That's bullshit. It's fucking bullshit! I've been doing this for way too long. I sold records in the '80s and '90s before there was an Internet, and no one seemed to have a problem going out and buying a shit ton of records back then. The whole record industry has collapsed because people are stealing. That's the end of the story.
Except, that's wrong. Pretty much all of it. It's not stealing. It may be infringement, but that's different than theft. And anyone who's being intellectually honest in this debate can at least admit there's a pretty big difference. And, no, no one said it was free to make the records, but that's really beside the point. It's not free for me to make Techdirt either. But does that mean that I'm being "ripped off" if no one pays me directly for it? Of course not. Because I'm using a smarter business model. Ian might want to try that, rather than blaming all of his fans. The fact that he sold records in the "pre-internet" days is kinda meaningless. I sold magazines in the pre-internet days, but times change. Business models change. Get with the program.
Anyway, since Ian seems so unwilling to adapt, I thought why should we let that stop folks here from coming up with some suggestions on what he should be doing. Over at Step2, I've kicked off a discussion on how Anthrax might better deal with downloaders, while still being able to make more money. Head on over to join that discussion.
On Friday October 21, Nintendo America's President, Reggie Fils-Aime, took to Twitter in a bit of PR for some recent announcements from the company. However a lot of Twitter users took this to mean that he would actually be communicating with fans. Sadly, he did nothing of real note on twitter. Fils-Aime posted a total of seven tweets in a span of about 8 hours. Of these tweets, 2 contained the same announcement, two were about news already reported by the press all over the web and the rest were "open" questions asked to the Twitter community.
I am not sure what Fils-Aime had in mind for this Twitter promotion, but the fans were expecting a conversation. You can really see this when you take a look at the history of the #Regginator hash tag on Twitter. Many of the fans took the time to answer the questions asked and even to ask questions of their own. One prominent theme running over this event was that of a project called 'Operation Rainfall'. This group is dedicated to convincing Nintendo of America to release a number of popular JRPG titles in America, most of which already have English translations as they are sold in England.
Nintendo, sadly, is deaf to these requests. They have made it pretty clear that those games will not be seen in the States. On top of this, the Wii is region locked and games imported from Europe are not playable on American Wiis. In response, a number of blogs and gaming sites around the web have taken the task of teaching people how to mod their Wii consoles to bypass region locks and play these games. In the process, this exposes a lot of Wii users to the ability to not only play imported games, but also homebrew and potentially pirated games.
Ignoring all of this is not how you connect with fans. It is also not how you meet the needs of underserved customers. By ignoring fans of the Wii, not only on Twitter but for many months prior, Nintendo is risking more customers modding consoles, which we all know they hate. My advice for Nintendo is to actually connect with fans and listen to what they want. It might find some cool ideas that will increase sales -- especially when you claim that your top exec is going to be communicating on Twitter.
While we've noted that Lady Gaga seems to be really on top of things when it comes to copyright issues on her music, in other areas of her operations, she's pretty aggressive in pushing intellectual property claims. We've noted, for example, her attempts to aggressively use trademark claims to stop "Baby Gaga" ice cream and copyright claims to control her image by photographers. As we noted, to Lady Gaga, intellectual property seems to have nothing to do with her music, but everything to do with her image.
It's too bad she recognizes the benefits of being open in one aspect of her business, but not in other areas. Of course, the constant overreaches aren't always successful. Take, for example, her recent attempt to gain control over a fan site at LadyGaga.org. Rather than embrace the fan site and be happy for the support, Gaga and/or her management, went to the National Arbitration Forum and argued that this fan had registered the domain in bad faith:
The owner of the site then responded that it was merely a non-commercial, unofficial fan site for Gaga that "does not have any sponsored links or links to third-party websites which market and sell merchandise bearing Complainant’s trademark.”
The owner added that her fan site supported Gaga's fame and was giving the singer free publicity. In other words, the site owner (identified as "Miranda") loves Lady Gaga so much that she's willing to erect a digital shrine to her, and lawyers shouldn't interfere.
Of course, it's quite a fan who's willing to still erect a digital shrine to an artist who goes legal to try to seize their domain. However, the NAF wasted little time in siding with the woman who owned the domain and against Lady Gaga. The ruling made clear that such a fan site is a perfectly legitimate purpose for the domain name.
For many years, we've heard various stories of how anyone who attends an early movie screening (i.e., before the movie has actually been widely released), should expect to be treated like a total criminal. The usual stories involve being searched carefully and being required to hand over all mobile phones, which will be held until the end of the film. Reader minerat writes in to tell us of his story, which involved going to a 7:30pm showing of Moneyball last week -- just a few hours before the movie was actually being released. Even so... same process. "Security made everyone give up their cell phones and checked all bags." And, it appears that security had their priorities straight from the MPAA:
The better part is after we gave up our phones, another security guard waves a metal detecting wand over us and we had to empty our pockets on any hits. My friend has a license to carry a firearm and was carrying - we thought this would be a problem (it's a center city Philadelphia theater), but no, he didn't care about his loaded handgun. Apparently a cameraphone is the bigger threat to a movie that will be publicly released 2 hours after we step out of the theater. Of course the DVD screener has been available on usenet for 3+ months.
California dubstep/bass artist Bassnectar has built a solid following over the past decade, culminating in appearances at major music festivals, including Lollapalooza, Bonnaroo and the Ultra Music Festival. Despite his loaded touring schedule, Bassnectar (a.k.a. Lorin Ashton) still keeps in touch with his fans (30K on Soundcloud, 550K on Facebook) via his regular Fan Bass Q&A feature.
An anonymous fan recently asked a question that's on the minds of artists all over the creative spectrum:
What do you think about the people that leak and download your music (or any music) without paying?
When we sent out promos of "Divergent Spectrum" we knew without a doubt it would get leaked. It is kind of an honor that enough people care, that they want to get it and share it as soon as possible. Instead of worrying about it, we just figured "Let's let people decide what they want to do." If they want to support me, let's make it easy for them to do so. We created a presale option, and added a stack of exclusive Bonus Material (loops, bits, outtakes, sketches, ...kind of like the "Special Features" on a DVD) as a gift to everyone who did this, knowing it was an act of love and support for them to pre-order something they could just download for free.
There are two key points to this statement, points that other artists (or more often, their default representatives -- label spokesmen, royalty collection agencies, etc. ) tend to ignore when discussing piracy. One: a leaked album is a sign of interest. Very few people will track down a leaked album from an artist they have no interest in. Two: make it easy for fans to support the artist, preferably directly. The more paranoid you are about leaked albums and "lost sales," the less likely it is that your music is easily found and purchased.
Bassnectar goes on from there, letting his fans (both paying and non-paying) know how thrilled he is with being Bassnectar:
For me, I am so incredibly grateful for everything in my life right now, i can't really ask for more. We have sold out nearly every single show in the past year, and the legion of bass heads is growing every day. I am honored that people want to explore my music. I am honored that they want to share it with their friends. I am not worried about being supported, because I feel so much support each day, in so many different forms.
On principle though, I do think it is important for ALL ARTISTS to make it easy for people to support what they love. And it is important for those who love the art to decide how they can support art and artists, and allow it to continue.
There it is again: "make it easy for people to support what they love." Hitching your music to major label's whims, proprietary systems, various rights agencies and digital rights management "tools" does nothing but make it harder for fans to support you, much less share the experience with others.
He also hammers home a point made over and over again here at Techdirt: spending time and energy attempting to prevent piracy will only leave you tired and frustrated. The music world doesn't work the way it used to, relying on "top down" distribution. At the same time, he makes a genuine request: if you love an artist, find a way to support them.
In 2011, art and culture exist as DIGITAL MEDIA, and it is naive to think it will not be leaked or downloaded or shared or "stolen" repeatedly. It is just a fact of life. People need to decide for themselves if they want to steal or not. And if they *DO* then they can decide if and how to follow up with support. If you download leaked music, and you enjoy it, why not go buy an official copy? It seems fair. You are not obligated to do this, it is just a choice. Do you enjoy the artist? IF YOU ENJOY, THEN SUPPORT. If not, then simply carry on. It takes a LOT of time and energy for artists to create their craft, and even more time and energy for them to prepare a release, and to distribute it. You can support what you love in many ways, and in a sense you vote with your dollar.
It's that simple. An artist's best weapons against piracy aren't takedown notices and legislation. The best weapon is still an honest connection with your fans (paying or not). Simply talking to them directly about you and your work does more for your bottom line than a million anti-piracy screeds. Even better, give them a reason to buy and as many ways to buy as possible.
I'll leave you with this choice clip of Bassnectar in action, sporting the finest head of heavy metal hair to ever find itself in front of a tableful of electronic noisemakers: