Time To Scrap All Music Industry Licensing Schemes

from the a-house-of-cards dept

It's impossible to be a legal innovator in online music these days. No matter what you do, you will run afoul of some kind of music licensing issue. That's because of the way that copyright law is designed. Basically, each time some new technology comes along that doesn't fit with the way copyright law used to work, the copyright holders run to Congress and demand yet another new "right" to be included in copyright -- and anyone who wants to do anything has to now pay for yet another license to cover that right. The end result is a comical house of cards that no one can actually figure out -- and you're pretty much bound to be sued by someone for violating one of those "rights," if you do anything even remotely innovative. At MidemNet, in one of the panels I watched, an executive complained that for every track one startup streamed online it needed to negotiate eight separate licenses. And that's not the worst of it. At a panel last week, execs from all over made it clear that things aren't about to get any better at all. Instead, it's just a bunch of legacy industry execs who keep demanding that the government grants them more rights.

But here's the problem: no one is providing any actual evidence that these rights are necessary. So let's scrap them all.

Plenty of musicians are showing that they can make good money by embracing new business models that have nothing to do with these antiquated licensing schemes. So why not get rid of them all and just let the market work. The end benefit would be great for everyone except the folks in collections societies who have made themselves a fantastic living sitting in the middle collecting money. Musicians would still make money by embracing new business models, and the ability for internet startups to actually innovate without getting sued or having to pay multiples of any possible profits to guys in suits doing nothing, would help grow the music industry many times over.

But, instead, we just hear from the folks representing the industry trying to add new licenses to the mix insisting (falsely) that they are somehow needed for the industry to survive. So we slap on another unnecessary layer that's really just designed to keep the guys in suits rolling in cash, but has nothing to do with helping out the actual musicians or creating more music. Meanwhile, the collections agencies -- the SoundExchanges and the ASCAP's of the world -- insist that a new license layer is a great thing, and they're more than willing to step up to be the ones to collect it. But it's not necessary and the answer is to go in the other direction.

We don't need to add more music licenses. We need to get rid of the old licensing regime. Entirely.

Even copyright attorneys are realizing that this is leading to the death of copyright. Layering licensing right on top of licensing right is building a house of cards that has to collapse. Copyright attorney David Post talks about the ridiculous situation of trying to determine how one would go about getting all the proper licenses for one of the thousands of increasingly viral videos made by people using Microsoft's Songsmith software, combined with vocals from classic music hits. As Post notes, that's definitely a creative endeavor -- the sort that copyright law is supposed to be encouraging. But he notes that copyright doesn't scale. All those different licensing rights make it impossible to actually get all the rights necessary to make that sort of creativity legal. After going through the impossibility of getting the licenses for just one of those videos, he asks how you would do it for the 100,000 Songsmith-inspired videos on YouTube alone -- not to mention those not even found on YouTube, or which will be loaded up in the future.

We've built a copyright system by having politicians incorrectly accept the screaming complaints of legacy industries every time some new technology comes along. So they add another layer of complexity to that house of cards, and we've now reached the point where it's impossible to innovate legally -- and even doing basic creativity puts you at significant risk. Yet, there's ample evidence that none of this is actually needed for musicians to make a living making music. It's time to recognize this and look to just wipe out all of these unnecessary legacy artifacts of a dead system, and clear the decks to let real innovation thrive.

Filed Under: copyright, innovation, licensing, music

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  1. icon
    Mike (profile), 2 Mar 2009 @ 7:16pm


    Mike, your logic is so twisted you must hurt yourself trying to think of these things.

    Harold. Over the past week we have shown you to be factually incorrect and/or ignorant in almost every statement you have made on this site. For you to then start off your post with an insult -- without ever apologizing for your previously wrong statements suggests that perhaps rather than throwing insults around, you might want to spend some time learning a bit. Otherwise you might make folks around here think you're foolish. And I'm sure you wouldn't want that.

    The mistake is assuming that the business model (existing) is only about record music / sell music.

    We've never made any such statement. In fact, we've been arguing exactly the *opposite*. It's only when you focus on trying to sell music do you run into business model problems. Instead, if you focus on that wider ecosystem, you realize there's no business model problem at all.

    Writers, producers, distributors, retailers, radio stations... there are tons of people involved in the current business model all making money. Artists make more money because they become well known because they are played nationwide on radio, on MTV, etc. They can go on tour and sell out similar sized rooms all over the country and make a living.

    Again, who said otherwise? In fact, just last week in response to one of your ridiculously wrong statements, we made that very point. Now you're coming here to repeat it back to us?!? Yikes.

    Music is an international business, one that requires exposure for artists to truly make it to the top. Without worldwide exposure, artists end up being regional novelties

    Indeed. Which supports our position. So I'm not sure why you are bringing it up.

    You also have to understand copyright and authors rights, which extend for a very, very long time. For the longest time, every time someone performed, sang, or played happy birthday on TV or radio, Michael Jackson made money (he owned the rights to the song).

    Well, this is false for a variety of reasons. While Warner Chappell claims to own the rights to Happy Birthday, recent research has shown that they don't actually own the rights to it:


    Yet, due to this crazy licensing scheme, simply because they CLAIM to own the rights to this song that even the "authors" almost certainly didn't write, they've been able to collect millions.

    Michael Jackson, while he has owned many song rights, has never owned the rights to Happy Birthday. Not surprising, of course, that you would be wrong about this.

    You cannot just randomly sweep away existing rights just because it doesn't jive with your "digital stuff should be free to reproduce itself" mentality.

    Actually, you can. Copyright laws and regulations change quite frequently, mostly adding unnecessary new monopolies, but they can just as easily take them away. It's a power of Congress granted by the Constitution.

    So... once again, another Weird Harold post where he displays his rather stunning ignorance.

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