Copyright is generally understood to be for the benefit of two groups of people: creators and their audience. Given that modern copyright often acts against the interests of the general public – forbidding even the most innocuous sharing of copyright material online – copyright intermediaries such as publishers, recording companies and film studios typically place great emphasis on how copyright helps artists. As Walled Culture the book spells out in detail (digital versions available free) the facts show otherwise. It is extremely hard for creators in any field to make a decent living from their profession. Mostly, artists are obliged to supplement their income in other ways. In fact, copyright doesn’t even work well for the top artists, particularly in the music world. That’s shown by the experience of one of the biggest stars in the world of music, Taylor Swift, reported here by The Guardian:
Swift is nearing the end of her project to re-record her first six albums – the ones originally made for Big Machine Records – as a putsch to highlight her claim that the originals had been sold out from under her: creative and commercial revenge served up album by album. Her public fight for ownership carried over to her 2018 deal with Republic Records, part of Universal Music Group (UMG), where an immovable condition was her owning her future master recordings and licensing them to the label.
It seems incredible that an artist as successful as Swift should be forced to re-record some of her albums in order to regain full control over them – control she lost because of the way that copyright works, splitting copyright between the written song and its performance (the “master recording”). A Walled Culture post back in 2021 explained that record label contracts typically contain a clause in which the artist grants the label an exclusive and total license to the master.
Swift’s need to re-record her albums through a massive but ultimately rather pointless project is unfortunate. However, some good seems to be coming of Swift’s determination to control both aspects of her songs – the score and the performance – as other musicians, notably female artists, follow her example:
Olivia Rodrigo made ownership of her own masters a precondition of signing with Geffen Records (also part of UMG) in 2020, citing Swift as a direct inspiration. In 2022, Zara Larsson bought back her recorded music catalogue and set up her own label, Sommer House. And in November 2023, Dua Lipa acquired her publishing from TaP Music Publishing, a division of the management company she left in early 2022.
It’s a trend that has been gaining in importance in recent years, as more musicians realize that they have been exploited by recording companies through the use of copyright, and that they have the power to change that. The Guardian article points out an interesting reason why musicians have an option today that was not available to them in the past:
This recalibration of the rules of engagement between artists and labels is also a result of the democratisation of information about the byzantine world of music contract law. At the turn of the 2000s, music industry information was highly esoteric and typically confined to the pages of trade publications such as Billboard, Music Week and Music & Copyright, or the books of Donald S Passman. Today, industry issues are debated in mainstream media outlets and artists can use social media to air grievances or call out heinous deal terms.
Pervasive use of the Internet means that artists’ fans are more aware of how the recording industry works, and thus better able to adjust their purchasing habits to punish the bad behavior, and reward the good. One factor driving this is that musicians can communicate directly to their fans through social media and other platforms. They no longer need the marketing departments of big recording companies to do that, which means that the messages to fans are no longer sanitized or censored.
This is another great example of how today’s digital world makes the old business models of the copyright industry redundant and vulnerable. That’s great news, because it is a step on the path to realizing that creators – whatever their field – don’t need copyright to thrive, despite today’s dogma that they do. What they require is precisely what innovative artists like Taylor Swift have achieved – full control over all aspects of their own creations – coupled with the Internet’s direct channels to their fans that let them turn that into fair recompense for their hard work.
In January, after a lot of back and forth with TikTok, Universal Music Group announced it would not be renewing its license with the platform for its catalog of music that users could use in their videos. UMG’s claimed reasoning for this was three-fold: TikTok wasn’t doing enough to combat deepfakes of the artists it represents, it wasn’t doing enough to combat copyright infringement on its platform generally, and the royalties it pays artists for their music wasn’t enough. These complaints are not uncommon from copyright holders to online platforms, of course. We could go into some detail as to why these complaints are, as TikTok’s response indicated, “self-serving.”
But instead, lets focus on how badly TikTok fucked this up on their end as well. That post I linked to at the jump includes the following open questions.
Aside from Universal’s massive catalog vanishing from TikTok’s library, the pressing question for many users is, what happens to old videos that were fine at the time, but now infringe on copyright?
TikTok didn’t respond to questions from Fast Company asking if Universal Music Group’s content suddenly switching to unlicensed could complicate copyright enforcement further. Right now, about 12 million TikTok videos use the hashtag #taylorswift. #Shakeitoff has 170,000, while #1989 has almost 600,000 with 8.5 billion views. Many of these include snippets of Swift’s music, or her performing at concerts, or fans singing to the car stereo.
Well, now we know what happens to at least a large portion of those old videos: chaos and silence. The UMG license expired and the catalog has begun to be pulled. The result is that all kinds of TikTok users are reporting that videos previously in good standing are now coming through partially or totally silent.
Sometimes, the app tags infringing videos with a notice reading, “Sound removed due to copyright restrictions.” Other times, it doesn’t, such as with a video Kylie Jenner posted back in September, set to one of Lana Del Rey’s songs. Now totally silent, it just carries a caption observing: “This sound isn’t available.” (The copyright-infringement giveaway was old user comments like “kylie and lana???” and “KYLIE IS A LANA GIRLIE???”)
One user complained that the video of her first dance at her wedding got muted because she and her husband picked an ABBA song. (Luckily, she added, she has a copy saved.) Others said some of their unpublished drafts have been stripped preemptively of sound, but live posts with the same music weren’t touched.
Meanwhile, UMG music still appears on the platform elsewhere, leading to confusion. And making this chaotic situation all the worse was the apparent decision by TikTok not say a whole lot to its users. Those open questions I alluded to at the beginning of the post? Apparently unanswered in advance by TikTok.
TikTok didn’t release any public statements in advance to help users prepare, or explain how to salvage content impacted by the Mute-pocalypse. It hasn’t posted any guidance to its pages for developers, advertisers, or the media. However, sellers on the app’s e-commerce platform, TikTok Shop, apparently received a message on Thursday walking through the process to change a video’s sound.
It’s one thing to play chicken with a major music publisher that is probably playing strongman with its music catalogue for reasons not entirely on the level. But to hang your own users out to dry as a result of that game of chicken is platform malpractice.
I’m fairly certain that TikTok doesn’t want to be 2024’s Twitch, in other words. All it had to do was communicate.
Twelve years ago, we released our very first research report, the Sky is Rising. Back then, in 2012, the commonly accepted wisdom was that the internet was killing various creative industries, from the music industry (especially!) to movies, TV, and books among other things. This didn’t seem to match with the world that we were seeing, so we dug into all the data (and, wherever possible, sought to use the industry’s own numbers) and found that while some industries were struggling to adapt to the internet, the data actually showed that the sky was rising, not falling.
We found that more content than ever before was being created (though not all through traditional channels). We found that people were engaging with more content than ever before. And, contrary to the narrative spun by some legacy industries, we saw that people were more than willing to spend money on content. They were just focused on having it be convenient and accessible where they wanted it to be.
Over the years with support from CCIA, we released additional editions of the Sky is Rising report via our think tank The Copia Institute, but our last one was five years ago in 2019, before the COVID pandemic. Last year we set out to revisit not just the data, but the structure of the whole report. The process took almost the entire year, but we’re excited to release our latest edition of The Sky is Rising.
In the original report, a decade ago, we were focused just on countering the misleading narrative that the internet was killing the creative industries. Not only is that myth dead and buried, the latest report suggests quite the opposite: that the internet has saved those industries and basically become the lifeblood of all creative industries.
Throughout the report what we saw time and time again is that the growth in these industries is happening because of the internet. It’s making it easier than ever to create, to share, to distribute, to promote, to sell, and to engage. Creativity is thriving, and much of it is entirely due to the internet.
Indeed, we saw this most directly in industries most heavily impacted by COVID. One of our concerns going into this report was looking at how the pandemic impacted things, and the data certainly confirmed that some industries had huge problems: namely live music and movie theaters. But, in both cases, the amazing thing that the data showed was how the internet rushed in to fill the void, providing new ways to experience content that traditionally had required performance spaces, helping to tide things over during the periods of lockdowns, and then easing the rebound after lockdowns loosened.
The internet helped spare those industries, and helped billions of people around the globe continue to engage with and experience wonderful art, even in the midst of a global pandemic.
Over and over again we saw examples of the internet helping these industries out. The most stark and clear example is the recording industry (which, as a reminder, is just one segment of the music industry). This was always Exhibit A for an industry supposedly being destroyed by the internet. Except, just as we saw, with the ability to create more music, distribute it, and enable more convenient access to everyone, the business models have sorted themselves out, and now the internet is responsible for the industry reaching new highs.
On the video side of things, while COVID took a huge bite out of the box office, when lumped together with digital streaming, the larger market for video basically has continued to grow.
For what it’s worth, that chart highlights a change we made with this year’s report. Ever since the original edition, we had been combining movies and TV into a single “video” section. This turned out to be prescient as the line between movies and TV started to blur quite a bit during the streaming era. As we were putting together this year’s report, we started to lean in on this thinking, and we retitled the sections and expanded a few. In the old reports, we covered Music, Video, Books, and Video Games. This year, we have switched it to the activity involved: Listening, Watching, Reading, and Playing. This allowed us to expand some of these categories, and slot in some newer things like TikTok videos, digital magazines, and podcasts.
Also, we’ve added a “mini-chapter’ on AI. We’re way too early into the generative AI world to have that much data on what it means for creativity and the creative industries. However, from what we’re seeing, it feels like “generative AI” is taking on the misleading role that “the internet” had in the early 2000s, of a new technology that some are predicting will destroy certain industries. And, while it’s early, what we’re seeing is (again) quite the opposite. AI has all the makings of an incredible tool to help people be even more creative and to create more wonderful works that people will enjoy.
There’s a lot more in the full report, which weighs in at 80 pages, chock full of details, charts, and graphs. But the key takeaway from it should be that the story from the early 2000s about how the internet was going to kill the creative industries and creators was not only wrong, it had everything backwards. The internet has been a huge boost to the creative industries, opening up new ways for people to create, to distribute, and to engage with content of all kinds.
The sky is truly rising, not falling. And, we should keep that in mind as we live through yet another apparent moral panic about the next “threat” to these industries.
Back in June, we wrote about a ridiculously weak lawsuit from the big music publishers against exTwitter, claiming that the platform, mostly known for text, and which barely has any reasonable system for posting or listening to music, was a music piracy haven.
As we noted, the publishers’ lawsuit seemed misguided in multiple ways, beyond just the lack of facilities on exTwitter for music, but also because the entire lawsuit seems to ignore the nature of the DMCA or any number of previous cases that says that online platforms need to have specific, actual knowledge of infringing works, rather than generalized knowledge that “infringement is happening on my platform.”
exTwitter has now hit back in court (first reported by Torrentfreak), and is asking for the judge to toss out the lawsuit. My initial fear with this lawsuit is that exTwitter would blow it by hiring bad lawyers who don’t understand the nuances here, but at least that doesn’t seem to be the case so far. Elon appears to have turned it over to his favorite lawyer, Alex Spiro, and his colleagues at Quinn Emanuel. While I wouldn’t trust Spiro for any of this, QE actually does have some very strong lawyers on copyright who have won some big cases, so there’s some serious lawyering going on.
The preliminary statement lays out the details of what a joke this case is:
Plaintiffs fail to adequately allege direct infringement because the Complaint does not contend that X acted with the requisite “volitional” conduct. The law requires that direct infringement arise from active, knowing, non-automated conduct by a defendant—not from the passive, automated operations of a website. The Complaint contains no allegations of active, intentional conduct by X, or any X employee, related to the allegedly infringing user posts—an omission that is fatal to the claim.
The contributory infringement claim is similarly defective. The United States Supreme Court has held that where a company offers a product or service that has substantial non-infringing uses—as X’s service indisputably does—the copyright plaintiff must allege that the defendant took active steps with the intent of encouraging infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 937 (2005) (“Grokster”). In this case, Plaintiffs do not allege that X encouraged, induced, or took affirmative steps with the intent to foster the infringement of Plaintiffs’ works. To the contrary, X’s anti-infringement policies and practices, including its DMCA policy, belie any reasonable assumption that X has induced its users to infringe any copyrights. Even reading the Complaint in the light most favorable to Plaintiffs, no liability can be established on the facts as pleaded. As this Court appropriately recognized in a case with similar facts, this pleading defect requires dismissal of the contributory liability claim. See Eight Mile Style, LLC v. Spotify USA Inc., 535 F. Supp. 3d 738, 746 (M.D. Tenn. 2021).
Finally, Plaintiffs’ claim for vicarious liability fails as a matter of law because Plaintiffs do not allege that the ability to post infringing content to the X platform (in violation of the Terms of Service) is a draw to users sufficient to confer an “obvious and direct” financial benefit to X, or that X had the practical ability to supervise the alleged infringement. As such, the vicarious liability claim is also insufficiently pleaded and should be dismissed.
There’s a ridiculous amount of caselaw on exTwitter’s side on this one.
I still worry about how Elon, as a wild card, will tweet something ridiculous like “hey everyone, let’s start posting infringing songs here for the lulz” or whatever. But, barring that, exTwitter has a strong case here, and the publishers look even greedier than they normally do in filing this case.
Twitter is not a music platform, and even if Musk is gradually hoping to turn the platform into one, that should be dealt with when those plans become clear, rather than the flimsy theories filed in this lawsuit, which would get laughed out of any law school copyright law discussion.
Let’s start from the basics here: if you tax something, you will get less of it. That’s how taxes work. If you want less of something, you add a tax to it. In Canada, some very, very clueless politicians (pushed by the news media) passed a tax on Facebook and Google linking to news. Both companies have long made it clear that news is not a revenue driver for either company, so Canada’s decision to make it more expensive basically priced both companies out of the market, and both have announced a discontinuation of links to news for Canadian users.
Meta began removing links to news at the beginning of this month, and people are already realizing how messed up things are when you can’t link. Up in Canada’s Northwest Territories, there are wildfires happening, and people were relying on social media to share news… but they can’t do that any more.
Like many in Canada’s Northwest Territories, Poul Osted has been relying on social media to keep in touch with loved ones as they scramble to evacuate from nearby wildfires.
But Mr Osted said he has been left frustrated by his inability to share news articles on Facebook during the active emergency situation, due to Meta’s ban on news content for Canadian users.
“Instead we have to screenshot parts of a news story and post that as a picture,” Mr Osted told the BBC.
“Oftentimes this means you don’t get the whole story, or have to go searching the web for verification.”
I’m sure some will blame Meta for this, but this is 100% on the Canadian government. As we’ve explained over and over again, no matter what you think of Meta, this law is breaking one of the fundamental pieces of the open web: you never have to pay to link to someone.
Meta may be a terrible messenger for this, but we should be happy that the company is taking a stand here, even if it’s doing it for selfish reasons. If link taxes like this are allowed to sweep the globe, the fundamental internet that we rely on will have changed in a very bad way. There is no way that these kinds of taxes stop at just news providers. Once other industries catch on, you can expect link taxes for all sorts of other “struggling” industries.
If people are frustrated about not being able to share important information about wildfires, that’s totally understandable, but they should be asking their government why they’ve made linking too expensive.
Meanwhile, others are complaining that Meta is blocking sites that aren’t really news. This isn’t a surprise. The same thing happened in Australia too, when that country launched its own link tax. I know when that happened some people got mad at Meta, but that was silly. When the penalty for not paying for a news link can be massive, you can bet Meta is (reasonably!) going to err on the side of overblocking.
And, as the company has to go through tons of sites to figure out which are and which are not allowed to be linked to, of course some borderline cases are going to get caught in the crossfire. According to this article, it includes things like a satire publications and a music radio station that doesn’t really publish any news.
In both cases, it’s fairly understandable. Both publications look pretty close to news, and there’s no way for a human to carefully vet which “news-looking-sites” are actually news vs. those that are not. At least this round of overblocking resulted in a funny situation:
The Beaverton, which describes itself as a “satire and parody publication,” was blocked by Meta on Facebook and Instagram a week ago after the technology conglomerate mistakenly lumped it in with news providers in Canada. Its readers, however, could once again see its content online by Thursday.
Luke Gordon Field, editor in chief of The Beaverton, said the blocking prompted him to act. The blocking was no joke, he said.
Field wrote an open letter to Meta threatening CEO Mark Zuckerberg with a fake lawsuit for defaming the publication by calling it a news organization. That letter was posted to X, the platform formerly known as Twitter.
Then there’s the music radio station:
Dan Lovranski, the volunteer host of Dr Mouth’s Rock and Roll Lunch Party on CIUT 89.5 FM Tuesdays at noon, said CIUT-FM, the University of Toronto’s radio station, is being blocked by Meta on Facebook and Instagram. He said CIUT-FM, which mainly produces music-based programming, is a community-based university-run radio station.
“It’s affecting a lot more things than just news agencies,” Lovranski said on Tuesday.
Lovranski said he’s amassed a global audience by promoting his show — “rock and roll, lots of fun, loud and boisterous, crazy music” — on Facebook and Instagram. He said Facebook is a “great promotional tool,” but no longer.
Now, listeners cannot be alerted to the show on Facebook and cannot be given information on how to download the show so that they can listen to it later, he said.
Again, you could argue that this doesn’t belong in the block, but Meta can’t afford to make mistakes here, so a radio station seems close enough to news that you can understand why it would get blocked.
Don’t like it? Complain to the Canadian government who pushed for and passed this very dumb link tax.
On Friday, the Internet Archive put up a blog post noting that its digital book lending program was likely to change as it continues to fight the book publishers’ efforts to kill the Internet Archive. As you’ll recall, all the big book publishers teamed up to sue the Internet Archive over its Open Library project, which was created based on a detailed approach, backed by librarians and copyright lawyers, to recreate an online digital library that matches a physical library. Unfortunately, back in March, the judge decided (just days after oral arguments) that everything about the Open Library infringes on copyrights. There were many, many problems with this ruling, and the Archive is appealing.
However, in the meantime, the judge in the district court needed to sort out the details of the injunction in terms of what activities the Archive would change during the appeal. The Internet Archive and the publishers negotiated over the terms of such an injunction and asked the court to weigh in on whether or not it also covers books for which there are no ebooks available at all. The Archive said it should only cover books where the publishers make an ebook available, while the publishers said it should cover all books, because of course they did. Given Judge Koeltl’s original ruling, I expected him to side with the publishers, and effectively shut down the Open Library. However, this morning he surprised me and sided with the Internet Archive, saying only books that are already available in electronic form need to be removed. That’s still a lot, but at least it means people can still access those other works electronically. The judge rightly noted that the injunction should be narrowly targeted towards the issues at play in the case, and thus it made sense to only block works available as ebooks.
But, also on Friday, the RIAA decided to step in and to try to kick the Internet Archive while it’s down. For years now, the Archive has offered up its Great 78 Project, in which the Archive, in coordination with some other library/archival projects (including the Archive of Contemporary Music and George Blood LP), has been digitizing whatever 78rpm records they could find.
78rpm records were some of the earliest musical recordings, and were produced from 1898 through the 1950s when they were replaced by 33 1/3rpm and 45rpm vinyl records. I remember that when I was growing up my grandparents had a record player that could still play 78s, and there were a few of those old 78s in a cabinet. Most of the 78s were not on vinyl, but shellac, and were fairly brittle, meaning that many old 78s are gone forever. As such there is tremendous value in preserving and protecting old 78s, which is also why many libraries have collections of them. It’s also why those various archival libraries decided to digitize and preserve them. Without such an effort, many of those 78s would disappear.
If you’ve ever gone through the Great78 project, you know quite well that it is, in no way, a substitute for music streaming services like Spotify or Apple Music. You get a static page in which you (1) see a photograph of the original 78 label, (2) get some information on that recording, and (3) are able to listen to and download just that song. Here’s a random example I pulled:
Also, when you listen to it, you can clearly hear that this was digitized straight off of the 78 itself, including all the crackle and hissing of the record. It is nothing like the carefully remastered versions you hear on music streaming services.
Indeed, I’ve used the Great78 Project to discover old songs I’d never heard before, leading me to search out those artists on Spotify to add to my playlists, meaning that for me, personally, the Great78 Project has almost certainly resulted in the big record labels making more money, as it added more artists for me to listen to through licensed systems.
It’s no secret that the recording industry had it out for the Great78 Project. Three years ago, we wrote about how Senator Thom Tillis (who has spent his tenure in the Senate pushing for whatever the legacy copyright industries want) seemed absolutely apoplectic when the Internet Archive bought a famous old record store in order to get access to the 78s to digitize, and Tillis thought that this attempt to preserve culture was shameful.
The lawsuit, joined by all of the big RIAA record labels, was filed by one of the RIAA’s favorite lawyers for destroying anything good that expands access to music: Matt Oppenheim. Matt was at the RIAA and helped destroy both Napster and Grokster. He was also the lawyer who helped create some terrible precedents holding ISPs liable for subscribers who download music, enabling even greater copyright trolling. Basically, if you’ve seen anything cool and innovative in the world of music over the last two decades, Oppenheim has been there to kill it.
And now he’s trying to kill the world’s greatest library.
Much of the actual lawsuit revolves around the Music Modernization Act, which was passed in 2018 and had some good parts in it, in particular in moving some pre-1972 sound recordings into the public domain. As you might also recall, prior to February of 1972, sound recordings did not get federal copyright protection (though they might get some form of state copyright). Indeed, in most of the first half of the 20th century, many copyright experts believed that federal copyright could not apply to sound recordings and that it could only apply to the composition. After February of 1972, sound recordings were granted federal copyright, but that left pre-1972 works in a weird state, in which they were often protected by an amalgamation of obsolete state laws, meaning that some works might not reach the public domain for well over a century. This was leading to real concerns that some of our earliest recordings would disappear forever.
The Music Modernization Act sought to deal with some of that, creating a process by which pre-1972 sound recordings would be shifted under federal copyright, and a clear process began to move some of the oldest ones into the public domain. It also created a process for dealing with old orphaned works, where the copyright holder could not be found. The Internet Archive celebrated all of this, and noted that it would be useful for some of its archival efforts.
The lawsuit accuses the Archive (and Brewster Kahle directly) of then ignoring the limitations and procedures in the Music Modernization Act to just continue digitizing and releasing all of the 78s it could find, including those by some well known artists whose works are available on streaming platforms and elsewhere. It also whines that the Archive often posts links to newly digitized Great78 records on ex-Twitter.
When the Music Modernization Act’s enactment made clear that unauthorized copying, streaming, and distributing pre-1972 sound recordings is infringing, Internet Archive made no changes to its activities. Internet Archive did not obtain authorization to use the recordings on the Great 78 Project website. It did not remove any recordings from public access. It did not slow the pace at which it made new recordings publicly available. It did not change its policies regarding which recordings it would make publicly available.
Internet Archive has not filed any notices of non-commercial use with the Copyright Office. Accordingly, the safe harbor set forth in the Music Modernization Act is not applicable to Internet Archive’s activities.
Internet Archive knew full well that the Music Modernization Act had made its activities illegal under Federal law. When the Music Modernization Act went into effect, Internet Archive posted about it on its blog. Jeff Kaplan, The Music Modernization Act is now law which means some pre-1972 music goes public, INTERNET ARCHIVE (Oct. 15, 2018), https://blog.archive.org/2018/10/15/the-music-modernization-act-is-now-law-which-means-some-music-goes-public/. The blog post stated that “the MMA means that libraries can make some of these older recordings freely available to the public as long as we do a reasonable search to determine that they are not commercially available.” Id. (emphasis added). The blog post further noted that the MMA “expands an obscure provision of the library exception to US Copyright Law, Section 108(h), to apply to all pre-72 recordings. Unfortunately 108(h) is notoriously hard to implement.” Id. (emphasis added). Brewster Kahle tweeted a link to the blog post. Brewster Kahle (@brewster_kahle), TWITTER (Oct. 15, 2018 11:26 AM), https://twitter.com/brewster_kahle/status/1051856787312271361.
Kahle delivered a presentation at the Association for Recorded Sound Collection’s 2019 annual conference titled, “Music Modernization Act 2018. How it did not go wrong, and even went pretty right.” In the presentation, Kahle stated that, “We Get pre-1972 out-of-print to be ‘Library Public Domain’!”. The presentation shows that Kahle, and, by extension, Internet Archive and the Foundation, understood how the Music Modernization Act had changed federal law and was aware the Music Modernization Act had made it unlawful under federal law to reproduce, distribute, and publicly perform pre-1972 sound recordings.
Despite knowing that the Music Modernization Act made its conduct infringing under federal law, Internet Archive ignored the new law and plowed forward as if the Music Modernization Act had never been enacted.
There’s a lot in the complaint that you can read. It attacks Brewster Kahle personally, falsely claiming that Kahle “advocated against the copyright laws for years,” rather than the more accurate statement that Kahle has advocated against problematic copyright laws that lock down, hide, and destroy culture. The lawsuit even uses Kahle’s important, though unfortunately failed, Kahle v. Gonzalez lawsuit, which argued (compellingly, though unfortunately not to the 9th Circuit) that when Congress changed copyright law from opt-in copyright (in which you had to register anything to get a copyright) to “everything is automatically covered by copyright,” it changed the very nature of copyright law, and took it beyond the limits required under the Constitution. That was not an “anti-copyright” lawsuit. It was an “anti-massive expansion of copyright in a manner that harms culture” lawsuit.
It is entirely possible (perhaps even likely) that the RIAA will win this lawsuit. As Oppenheim knows well, the courts are often quite smitten with the idea that the giant record labels and publishers and movie studios “own” culture and can limit how the public experiences it.
But all this really does is demonstrate exactly how broken modern copyright law is. There is no sensible or rationale world in which an effort to preserve culture and make it available to people should be deemed a violation of the law. Especially when that culture is mostly works that the record labels themselves ignored for decades, allowing them to decay and disappear in many instances. To come back now, decades later, and try to kill off library preservation and archival efforts is just an insult to the way culture works.
It’s doubly stupid given that the RIAA, and Oppenheim in particular, spent years trying to block music from ever being available on the internet. It’s only now that the very internet they fought developed systems that have re-invigorated the bank accounts of the labels through streaming that the RIAA gets to pretend that of course it cares about music from the first half of the 20th century — music that it was happy to let decay and die off until just recently.
Whether or not the case is legally sound is one thing. Chances are the labels may win. But, on a moral level, everything about this is despicable. The Great78 project isn’t taking a dime away from artists or the labels. No one is listening to the those recordings as a replacement for licensed efforts. Again, if anything, it’s helping to rejuvenate interest in those old recordings for free.
And if this lawsuit succeeds, it could very well put the nail in the coffin of the Internet Archive, which is already in trouble due to the publishers’ lawsuit.
Over the last few years, the RIAA had sort of taken a step back from being the internet’s villain, but its instincts to kill off and spit on culture never went away.
For years, we’ve written about the copyright nonsense around sampling in hip hop music, and how it was treated with very, very different rules than things like cover songs and paying homage to previous artists in other forms of music. As we’ve mentioned for over a decade, filmmaker Kembrew McCleod did a full (fascinating) exploration of this in the documentary “Copyright Criminals” which is worth watching if you can find it. The trailer is here:
The group De La Soul features prominently in the movie, as their first album, 3 Feet High and Rising, has long been the quintessential example of an album that had so many samples that it would be effectively impossible to get the official licenses necessary to release it today.
Because of this, that classic hip hop album has not been available on various streaming platforms in an era where (unfortunately or not) not being on streaming more or less means the album doesn’t exist. It’s obviously been frustrating for the band. In 2014, they made everything they had ever created free for people to download from their website… but just for 24 hours. In fact, back in 2015, De La Soul did a Kickstarter project to create new music for themselves to sample as a commentary on their inability to sample others (I could have sworn I wrote about the project back then, but search is failing me in finding it). Both of these moves came with statements from the group talking about how much they want their music out there and how much they want to support their fans, but copyright law and the record labels kept getting in the way.
All of this is silly, frankly. Much of the time, samples are unrecognizable from the original. They should, easily, be covered by de minimis use or fair use. Yet, perhaps because of the nature of the music — and who frequently creates it — courts were much quicker to insist that every single sample needs to be licensed, no matter how short, no matter how transformed, no matter how unrecognizable, and even no matter how much a sample might actually help promote the original.
Still, for over a decade, people have talked about finally trying to make 3 Feet High and Rising available legally (of course, if you just ignore copyright laws, it’s always been possible to find it). Three years ago there were reports that it was finally going to come to streaming. Except that ran into problems as the plan from Tommy Boy records was apparently done without agreement with the group, and where most of the money would go to the label.
It’s good that De La Soul controls their own masters and is able to get this music out there for more people to listen to legally, but it’s somewhat ridiculous that it’s taken all this time and had to go through so much nonsense. Of course, it’s still not entirely clear to me that the rights issues regarding the samples are all cleared. I recall a similar effort by the Beastie Boys to rerelease Paul’s Boutique that resulted in a lawsuit over some of the samples as well.
But hopefully, we can get past all that… and just let people enjoy the music.
Hopefully, you already know who Tom Lehrer is, and are already familiar with his music, but if you’re somehow in the dark, I suggest you read this excellent profile, or visit his unofficial official YouTube channel. Or, visit his website where you can download everything for free (he even begs you not to send him money).
We’ve written about Lehrer twice before, both regarding his views on effectively releasing his music in the public domain. Back in 2014, we wrote about how a fan had basically put all of his works on YouTube, and then contacted Lehrer to apologize. Lehrer told him there was nothing to apologize for: he was glad the works were out there. The fan then asked if he needed to do something to make sure that no one would ever copyright strike the videos, and Lehrer again says not to worry, as far as he’s concerned it’s all in the public domain, and he has no heirs to cause problems after he dies:
While Lehrer has made startlingly little effort to ensure a future for his work, a handful of superfans have filled in the gap. One is Erik Meyn, a Norwegian who manages the Tom Lehrer Wisdom Channel on YouTube, a feed of performance videos and playlists that has received more than 10 million views since 2007. Meyn originally posted content to the channel without Lehrer’s permission and called him from overseas in December 2008 to apologize, a conversation he later posted on the “Tom Lehrer!” Facebook page. An excerpt:
TL: Well, you see, I’m fine with that channel.
EM: You’re very kind. But my question is: Who in your family will take care of your copyright and your songs in the distant future?
TL: I don’t have a family.
EM: OK, but what do you think will happen to the channel and your songs? And if you have someone who will act on your behalf, could you give them my name in case they’d want the channel taken down?
TL: Yes, but there’s no need to remove that channel.
EM: I was just wondering what will happen in the future, because you’re certainly going to continue to sell records.
TL: Well, I don’t need to make money after I’m dead. These things will be taken care of.
EM: I feel like I gave away some of your songs to public domain without even asking you, and that wasn’t very nice of me.
TL: But I’m fine with that, you know.
EM: Will you establish any kind of foundation or charity or something like that?
TL: No, I won’t. They’re mostly rip-offs.
Then, in 2020, we wrote about him again, noting that he had put up a website where he had announced that all of his lyrics had been officially dedicated to the public domain, and he encouraged people to do what they wanted with them. At the time, we noted that this did not cover the actual music, but Lehrer had suggested he would add that at a future time.
Apparently, that future time has come. Lehrer has expanded the letter on his website, now dated to November of 2022, even if much of it is identical to what we wrote about two years ago. But the big difference is that he’s now including all of the music in the public domain dedication:
I, Tom Lehrer, and the Tom Lehrer Trust 2007, hereby grant the following permissions:
All copyrights to lyrics or music written or composed by me have been relinquished, and therefore such songs are now in the public domain. All of my songs that have never been copyrighted, having been available for free for so long, are now also in the public domain.
The latter includes all lyrics which I have written to music by others, although the music to such parodies, if copyrighted by their composers, are of course not included without permission of their copyright owners. The translated songs on this website may be found on YouTube in their original languages.
Performing and recording rights to all of my songs are included in this permission. Translation rights are also included.
In particular, permission is hereby granted to anyone to set any of these lyrics to their own music, or to set any of this music to their own lyrics, and to publish or perform their parodies or distortions of these songs without payment or fear of legal action.
Some recording, movie, and television rights to songs written by me are merely licensed non-exclusively by me to recording, movie, or TV companies. All such rights are now released herewith and therefore do not require any permission from me or from Maelstrom Music, which is merely me in another hat, nor from the recording, movie, or TV companies involved.
In short, I no longer retain any rights to any of my songs. So help yourselves, and don’t send me any money.
As I said, much of this statement reflects what was on the site before, but now it covers the music as well as the lyrics. He’s also basically put up everything you need. You can download the music as MP3s, you can stream albums, you can download lyrics as PDF files. It’s… pretty comprehensive. And pretty impressive.
Of course, there’s also this semi-ominous warning:
THIS WEBSITE WILL BE SHUT DOWN AT SOME DATE IN THE NOT TOO DISTANT FUTURE, SO IF YOU WANT TO DOWNLOAD ANYTHING, DON’T WAIT TOO LONG.
I hope that someone (hey, Internet Archive?) is making sure that this page, and all the music is preserved long after Lehrer removes it.
Either way, it’s another lovely gift, and it’s a strange one, given that in these days of ever expanding copyright terms, most artists never live to see any of their works enter the public domain. Lehrer should be celebrated for his music and wit, of course, but also for making sure his works are really in the public domain while he’s still alive, which is an amazing contribution to public culture.
Of course, as we’ve discussed for years, there is no official way under US copyright law to put works in the public domain. The best you can do is effectively make clear that you are giving up any rights to enforce your copyrights, which is what Lehrer has done here. It’s a shame that US law does not allow for an official public domain dedication, but maybe one day that will happen.
You may have noticed the world getting excited about the capabilities of ChatGPT, a text-based AI chat bot. Similarly, some are getting quite worked up over generative AI systems that can turn text prompts into images, including those mimicking the style of particular artists. But less remarked upon is the use of AI in the world of music. Music Business Worldwide has written two detailed news stories on the topic. The first comes from China:
Tencent Music Entertainment (TME) says that it has created and released over 1,000 tracks containing vocals created by AI tech that mimics the human voice.
And get this: one of these tracks has already surpassed 100 million streams.
Some of these songs use synthetic voices based on human singers, both dead and alive:
TME also confirmed today (November 15) that – in addition to “paying tribute” to the vocals of dead artists via the Lingyin Engine – it has also created “an AI singer lineup with the voices of trending [i.e currently active] stars such as Yang Chaoyue, among others”.
The copyright industry will doubtless have something to say about that. It is also unlikely to be delighted by the second Music Business Worldwide story about AI-generated music, this time in the Middle East and North Africa (MENA) market:
MENA-focused Spotify rival, Anghami, is now taking the concept to a whole other level – claiming that it will soon become the first platform to host over 200,000 songs generated by AI.
Anghami has partnered with a generative music platform called Mubert, which says it allows users to create “unique soundtracks” for various uses such as social media, presentations or films using one million samples from over 4,000 musicians.
…
According to Mohammed Ogaily, VP Product at Anghami, the service has already “generated over 170,000 songs, based on three sets of lyrics, three talents, and 2,000 tracks generated by AI”.
It’s striking that the undoubtedly interesting but theoretical possibilities of ChatGPT and generative AI art are dominating the headlines, while we hear relatively little about these AI-based music services that are already up and running, and hugely popular with listeners. It’s probably a result of the generally parochial nature of mainstream Western media, which often ignores the important developments happening elsewhere.
Earlier this year, we discussed Nintendo — dubbed by me as “the Disney of video gaming” — having gone on a DMCA blitz on YouTube videos that are essentially just new and classic video game music. This has been something Nintendo has ramped up over the years, taking down 100 videos in 2019, more than that in 2020, and then over 1,300 in 2022. That last one mostly targeted a single YouTube account, that of GilvaSunner, who later shut down his account due to all this nonsense.
What’s important to keep in mind with all of this is that, other than basically some music from some Pokemon games, Nintendo does not make this music available elsewhere for streaming. In other words, the public wants a product of Nintendo that it doesn’t directly sell or make available, but Nintendo refuses to also let the internet fill this need free of charge. The music videos don’t compete with Nintendo, in other words, but the company refuses to allow the public to consume them.
And this is still going on. The company recently got over 500 of these music-only videos removed from YouTube, largely all uploaded by one user again, DeoxysPrime. DeoxysPrime, given the pressure from the DMCA takedowns, is simply going to remove all Nintendo music from his/her channel.
The reaction to all of this from fans of Nintendo’s games and their music has been fairly uniform: confusion mixed with irritation. And the reason for that is very clear. Nintendo is removing access to this beloved music without bothering to offer its own method for listening to it.
“It really makes me wonder why Nintendo still hasn’t created their own VEVO channel or addEd OSTs to music streaming services. Even Disney has the decency to do both,” said one fan on the Restera forum.
“Why don’t they let people pay to listen to this stuff, everybody wins,” said another.
Perhaps Nintendo has plans to offer some way to stream music from its games that hasn’t been made public yet. But this DMCA blitz on game music, as noted earlier, has been going on for several years now.
So as it stands now, this all looks like Nintendo pissing on the legs of its fans without any good reason.