We all know by now the music industry's mantra that piracy kills artists. Well, not kills kills, but kills their musical careers before they could even really begin, so destructive is the dissemination of free music amongst the public. After all, if the public doesn't pay for every last instance of every last bit of music, how in the world could musical artists ever make a living? This mantra is one that tends to be applied universally to the concept of free music by the industry, with zero in the way of nuanced discussions about potential business models that might work for some, or many, artists.
Except that that's silly. It ignores the power of freely disseminated music in helping musicians to be discovered in the first place, where they can then go on and make all kinds of money through what have always been better profit-centers for artists, such as concerts, merchandise and the like. Many artists don't understand this, swallowing the industry's mantra whole. But there are exceptions, such as Ed Sheeran, who began his career sans record label, promoting himself instead.
Beyond writing the songs, Sheeran also wrote his own rules about how to sell them. Like so many others, he had set off for London as a teenager, singing on street corners and in pubs. But he didn’t knock on record company doors or wait to be discovered. Instead, he began marketing his own stuff, releasing his music himself on websites until -- inevitably -- a record label came calling. He had already earned half a million from his independent sales, putting the music out himself.
“What I didn’t have was infrastructure,” Sheeran said. “They have an American label, they have a Japanese label, they have an Australian label. So that’s what I was signing for.”
And that infrastructure is where labels can indeed provide some value. Except it's simply not the value for which labels have taken so much credit for far too long. There was no initial discovery and nurturing done by the labels in Sheeran's case. Sheeran did that himself. Instead, the labels came calling after the initial work was done and pitched even wider distribution in exchange for slapping their names on an already ascending star. This serves as a rebuttal to some of the reaction you see in cases such as Run The Jewels, with some complaining that their free music strategy chiefly worked because they were already a household name. Sheeran's case is the opposite, in which he became a household name because of his free music strategy. It's not that the strategy is easily portable to every artist in every case, but it does remind us that the blanket disgust toward piracy by the music industry is not supported by reality either.
But even after the labels were involved, Sheeran indicates a clear understanding of how and why his music supercharged his fame to the household status it now has.
Who helped him first? Fans, he says. “It was file sharing. I know that’s a bad thing to say, because I’m part of a music industry that doesn’t like illegal file sharing.”
“Code for piracy.”
“Yeah, but illegal fire sharing was what made me. It was students in England going to university, sharing my songs with each other.”
And what is his view on file sharing now? “I don’t think file sharing exists now.”
“Yeah, I think people rip off YouTube. That’s a thing. But I feel like it’s so easy to stream.”
Sheeran's case goes beyond simply giving music away, of course. His treatment of his fans creates a bond as well, one that fosters a desire among the fanbase to support him. The free music alone isn't enough, he needed his personality and talent, as well, to make it work. Still, it's easy to read shrugged shoulders into his comments on music piracy in the present, and obvious gratitude for it in his past. It's unfortunate how rare this mode of thinking is, which is why it's a bit jarring to hear a star like Sheeran say something as profound as "illegal filesharing was what made me." You can almost hear the groan from label executives as you read the words from a man far too busy counting his money and making his art to care.
And, to counter another industry claim that any gain by an artist through piracy is short-lived, it's worth noting that Sheeran's latest work is selling, and selling well. At a record breaking pace, in fact, even as the concert venues continue to sell out for Sheeran's appearances.
Not bad for a young man who credits piracy for all that glory.
As stories from the UK, Kenya, Peru, Slovakia, Canada, Germany, Taiwan, and the US demonstrate, there's really something rather special about copyright collection societies. Back in 2012, Mike discussed a paper on the subject that listed over 90 examples of actions taken by collection societies around the world that have been bad either for artists or for users. Looks like we can add Bulgaria to the list:
The Bulgarian National Radio [BNR] and copyright organization Musicautor remain at loggerheads over music fees, with officials being cautious in their reaction.
Since January 01, the public radio is barred from playing more than 14 000 000 musical pieces from around the world and plays mostly classical music, jazz and folklore music.
As the report on the novinite.com site from Bulgaria's capital Sofia explains, that's because Musicautor is demanding that the present music licensing fee of 1% of BNR's state subsidy should increase to 3%. It tries to justify that massive rise by pointing out that other countries around Europe pay a similarly elevated fee. But as the head of Bulgaria's radio explains:
the demand from Musicautor is a burden on [BNR's] budget and "does not rest on economic realities". He accuses the organization of abusing its monopoly over copyright and warns if the radio were to agree, it would have to take one of its regional programs off air, infringing on the public interest.
Just because copyright collection societies have succeeded in squeezing fat licensing fees out of public broadcasters in other countries doesn't mean that this is some inalienable right everywhere. Rather, it reflects the power -- the monopoly power, in fact -- of a collection society to threaten to stop people listening to millions of the most popular tracks on their national radio stations, however unreasonably, simply because it can.
For many years now we've been covering the ridiculous legal disputes over pre-1972 sound recordings. Without going into all of the history, the short version is that while music compositions have long been covered by copyright, the actual sound recordings were not until the early 1970s, going into effect in early 1972. Under the legal regime at the time, the 1909 Copyright Act, it was widely accepted that sound recordings could not qualify for copyright under federal copyright law until that law was changed in the run-up to the 1976 Copyright Act. However, due to a lot of lobbying, many states set up either state-based copyright regulations, or a common law regime through the courts, that recognized certain copyright-like exclusive rights in sound recordings. These were all basically wiped out with the 1976 Act, which included a preemption clause that basically said all copyright is now federal and state copyright law is wiped out. That left a gray area, though, for pre-1972 sound recordings, which technically weren't covered by federal copyright law, but it was unclear if state law applied. That created some problems, including extending the length of copyright on those sound recordings way, way, way beyond when they would have gone into the public domain.
A few years ago, we wrote about how these state laws were potentially leading to the permanent loss of classic jazz recordings that might never reach the public domain, and which no one can actually listen to. There's an easy solution to this, which is just to extend federal copyright law to pre-1972 sound recordings and put them under the same regime as everything else (which has it's own problems, but it's better than the mess we're in now). But, of all things, the RIAA and record labels have rejected this, mainly because they see these state laws as a great tool to squeeze extra money out of companies (and to avoid those works ever reaching the public domain).
After years of arguing over what to do about pre-1972 works, the recording industry finally just started suing everyone over the use of pre-1972 sound recordings. The key issue was about public performance rights. To understand this, we have to wade further into the weeds. Federal copyright law gives copyright holders a number of "exclusive rights" under copyright. The ones you mostly hear about are the reproduction right and the distribution right. But there's also the right to prepare derivative works and the right "to perform the copyrighted work publicly."
That public performance right was a relatively new concept, and had never been seen in the various state copyright regimes prior to the 1976 Copyright Act that then (mostly) abolished state copyright laws. In fact, public performance rights in federal copyright explicitly excluded sound recordings -- until 1995 when a new copyright law extended public performance rights to sound recordings, but solely for digital radio services (and not to radio, restaurants, stores, bars, etc). But the recording industry's theory was that even if sound recordings weren't under federal copyright law, when federal copyright law created a public performance right, that right magically moved over into state copyright law as well... and, magically, it applied to all the stuff that federal copyright law said it didn't cover (though, at the same time, they insist that things like the DMCA's safe harbors do not translate into state copyright laws -- which is a neat trick).
The lawsuits to date have been a mixed bag. Sirius lost some early rounds, upsetting decades of consensus about copyright law. The first case it lost was in California, but soon after it lost a case in New York as well, even as the judge admitted this upset decades of consensus. A court in Florida eventually sided with Sirius, but the company then quickly settled with the RIAA.
However, the case in NY was appealed and Sirius has now won on appeal. This is a pretty big deal. The full ruling is long, but worth reading. As the court rightly notes (and as we did back when the original decision came out, only to be mocked by copyright maximalists) this would upset decades of widespread consensus over what state copyright laws covered, and that makes no sense at all:
Indeed, it would be illogical to conclude that the
right of public performance would have existed for decades
without the courts recognizing such a right as a matter of state
common law, and in the absence of any artist or record company
attempting to enforce that right in this state until now. The
absence of a right of public performance in sound recordings was
discussed at the federal level for years and became acutely
highlighted in 1971, upon enactment of the Sound Recording
Amendment, and again in 1995, upon enactment of the DPRA. At
those times, all interested parties were placed on notice of the
statute's limited rights for post-1972 sound recordings.
Although parties do not lose their rights merely by failing to
enforce them, the fact that holders of rights to sound recordings
took no action whatsoever to assert common-law protection for at
least the past four decades -- when the absence of a
comprehensive federal right of public performance for sound
recordings was clear -- supports our conclusion that artists and
copyright holders did not believe such a right existed in the
Instead, common sense supports the explanation,
articulated by the Third Circuit, that the record companies and
artists had a symbiotic relationship with radio stations, and
wanted them to play their records to encourage name recognition
and corresponding album sales
The court notes that, yes, the industry has changed due to technology, but that's no excuse for the recording industry to suddenly pretend that these rights existed for decades and everyone ignored them until now.
Simply stated, New York's common-law copyright has
never recognized a right of public performance for pre-1972 sound
recordings. Because the consequences of doing so could be
extensive and far-reaching, and there are many competing
interests at stake, which we are not equipped to address, we
decline to create such a right for the first time now.
Given that, the court says, if there needs to be such a right, it should be created by the legislature through laws, not the court making it up as it goes along. The court further notes that Congress carefully analyzed this issue, and it would be wrong for courts to rush in -- especially since without the balancing act of legislators, it might create a right that (you guessed it...) the record labels would use to scoop of money without giving any to the artists:
We cannot ignore the fact that Congress studied the
nature and scope of the right to the public performance of sound
recordings for nearly two decades before revising the federal
statutes to recognize a limited right. Indeed, in 1976, Congress
"considered at length the arguments in favor of establishing a
limited performance right, in the form of a compulsory license,
for copyrighted sound recordings, but concluded that the problem
require[d] further study".... As directed by the Copyright Act of
1976, the Register of Copyrights submitted a voluminous report in
1978, recommending that Congress enact a limited right to control
public performances of sound recordings. Not until 1995 did
Congress take action on that recommendation and enact any such
right and, even then, the right it created was a narrow one
circumscribed by a nuanced regulatory scheme limited to digital
transmissions of post-1972 sound recordings.... Moreover, as part of that
statutory scheme, Congress included a requirement that the
copyright holder pay a portion of the royalties to the recording
artist; even if we were to recognize a common-law copyright to
public performance, there is no guarantee that the artists would
receive any portion of the royalties, as many copyrights are
apparently held by the record companies. Ultimately, it cannot
be overstated that, if this Court were to recognize a right of
public performance under the common law, we would be ill-equipped
-- or simply unable -- to create a structure of rules to properly
guide the application of that right.
There is a dissent, that says the court can just use federal copyright law's public performance rights and move them over to state copyright law, but the majority opinion points out what a mess that would create.
While the dissent notes that the federal law reflects Congress's
balancing of the varied and competing interests involved, this
only highlights that a legislative body -- not the courts --
should make decisions regarding such a right. Additionally, it
would be highly unusual for this Court to simply adopt federal
statutes as the embodiment of the scope of a state common-law
right. Moreover, as a practical matter, not all aspects of the
complex federal scheme can be directly incorporated under our
common law. For example, in the DPRA, Congress provided a means
of determining reasonable rates and royalty payments, including a
dispute resolution system.... However, state
courts have no authority to require the federal Copyright Royalty
Judges to adjudicate challenges to royalty rates on pre-1972
sound recordings ... nor do we
have the authority to create a New York State version of that
dispute resolution system.
There's also a somewhat weird concurring opinion, that agrees that there's no public performance right, but based on nothing at all, theorizes that services like Spotify and Apple Music (which are not parties to this particular lawsuit) may have issues with violating the exclusivity in publishing rights.
With respect to the fourth step on my continuum,
certain Internet broadcasters -- such as Apple Music, Spotify's
premium subscription, Rhapsody, and Amazon's Music Unlimited
offering -- permit users to peruse a catalog of millions of songs
and to "call them up on any device, including [one's] phone,
anytime [one] wants"....
In determining whether there is a common law right of
public performance for recordings fixed prior to February 15,
1972, we necessarily have occasion to speak to the nature and the
limits of such right. In the realm of federal copyright law,
"publication" is defined as "the distribution of copies or
phonorecords of a work to the public by sale or other transfer of
ownership, or by rental, lease or lending".... To allow a user to regularly,
specifically, and directly access an exact sound recording "ondemand"
is not to facilitate the "public performance" of such
recording, but to publish that work and therefore to infringe
upon the right of the copyright holder to sell it ....
We must recognize that the rental or lease of sound
recordings fixed prior to February 15, 1972 by Internet
broadcasters who provide the public "on-demand" access to such
recordings is a form of publication under copyright law.
It seems weird and unnecessary (in the extreme) for a judge to try to address a totally different situation, one that the court wasn't fully briefed on) involving parties who aren't even a part of the lawsuit. Obviously the concurring opinion has no precedential value, but it's troubling that the judge would jump to such a conclusion anyway.
Of course, with this ruling conflicting with other rulings, this still seems like an issue that the Supreme Court is going to have to weigh in on. And... just last week, the Supreme Court was petitioned to hear another case involving pre-1972 works. This is another one that we've been following as well, where the record labels sued the online video site Vimeo, mainly over employee uploaded "lipdubs" of various songs. Part of the issue in that case was whether or not the DMCA's safe harbors applied to those pre-1972 sound recordings. While a district court rejected most of the arguments by the label, it did accept that pre-1972 sound recordings might not qualify for DMCA safe harbor protections.
The 2nd Circuit appeals court overturned that ruling earlier this year, noting that it would make no sense at all for the safe harbors not to apply to pre-1972 works, because that would undermine the very purpose of the DMCA safe harbors. Capitol Records is asking the Supreme Court to overturn the 2nd Circuit on that issue -- which may or may not get to the other issues related to pre-1972 music... but it would be nice for the Supreme Court to sort this all out one way or the other.
When I drop dead of a massive heart attack, it will be because some huge company has bullied some small company over a ridiculous trademark that never should have been granted in the first place. The examples for this sort of thing are legion around Techdirt, but it still gets me every single time. The Trademark Office has done such a poor job of turning even the barest of critical eyes towards trademark applications that all sorts of short and common words have been granted trademarks all over the place, including in industries where it was plainly insane to grant them at all.
The latest of these concerns a small family-owned supper club in Maryland and the threat letter it received from an enormous casino company over the trademark it had somehow received on the word "live."
The Bethesda Blues and Jazz Supper Club in the 7700 block of Wisconsin Avenue was opened four years ago by owner Rick Brown. He envisioned a grand supper club on the scale of the famous Copacabana nightclub and wanted to preserve a landmark that had personal meaning to him and his family. After more than 900 concerts and 240,000 customers over four years, he decided to change the name of the business to Bethesda Live, attempting to attract a wider audience and let people know they have more than just blues and jazz acts.
Within days of announcing the name change, Brown got a letter from an attorney representing Maryland Live! Casino, ordering Brown to cease and desist with the name change and threatening legal action if he continued. The letter said, “Live! Holdings, LLC is the owner of the registered trademark ‘Live!’ and we are writing to object to your company’s contemplated use of ‘Bethesda Live’ in connection with an entertainment facility in Bethesda, Maryland.”
Yes, Maryland Live! Casino is asserting it has a trademark on the word "live" for use in the entertainment market. Put yourself in the chair of someone at the Trademark Office, if you can. You see an application for the word "live" to be used in the entertainment market. If you can picture yourself taking any course of action other than laughing maniacally as you light the application on fire, then it appears you're just the sort of person the USPTO is hiring, so go send in your resume. The rest of us will be facepalming over here, because that's not just a common word generally, but a word so common in the entertainment industry as to be downright ubiquitous.
And, yet, pretty much everyone agrees that if the casino wishes to move this dispute to a courtroom, the small supper club in Bethesda is completely boned.
Brown’s lawyer, Chris Foley, a trademark lawyer and partner at Finnegan Law, said the casino is overreaching. However, he said his client could be wiped out financially if he tried to fight the order.
“Oh, it’s trademark bullying.” Foley said. “I think we’re dealing with a David and Goliath (situation) that could cost hundreds of thousands of dollars easily and that’s not fair to him.”
“It is unfair,” Brown said. “Even if we were to fight a lawsuit, it would be very expensive. We just don’t have those resources.”
Trademark bullying occurs because it works. Brown has said he's reached out to the casino to plead that something be worked out, but the casino can't seem to find a way to let a blues supper club use the word "live." In a just world, this kind of bullying would result in the casino losing this overly-broad and common trademark entirely. Sadly, this world is often not quite so just as that.
This is a strange one, for sure. Often times when we discuss disputes from copyright licensing or collection groups, which will universally complain that they are not collecting enough money when given any opportunity, some will comment that the artists should just pull their music from all broadcasts if they're not happy with the arrangement. This kind of nuclear option is rarely, if ever, invoked for a whole host of reasons that include compulsory licensing arrangements and rules, the sincerity of the complaints from the licensing groups, and the simple business interests behind the benefits of having music heard on the radio.
But in Macedonia, one such licensing group has quite literally taken its musical ball and stomped home. This whole spat has been initiated by ZAMP, previously the sole music copyright collection organization in all of Macedonia, all because a second collection group has been started in the country, alongside more strict rules governing how much money ZAMP can collect for the artists it represents. As a result, ZAMP has informed Macedonia's broadcasters that they are henceforth banned from playing any music created by Macedonian artists, whom ZAMP claims to represent.
The ban came after the culture ministry gave a licence to the newly-formed SOKOM MAP association to collect songwriters’ and performers’ fees from TV and radio broadcasters.
“Their goal is to divide the authors and to put a hand on the money collected by ZAMP. Thus the new association, SOKOM MAP, has become an instrument in the culture ministry’s hands,” ZAMP said in a statement.
SOKOM MAP, the new collection group, has insisted that it is not in fact an arm of the Macedonian government, but another collection group representing artists. Based on a frustrating Google translation of SOKOM MAP's website, it appears to have nothing to do with the government at all, instead being a non-profit group representing songwriters.
Complicating all of this is a law in Macedonia that requires broadcasters to include 40% Macedonian-made music within their music broadcasts. Thus, broadcasters are currently screwed either way: they risk fines from ZAMP if they play Macedonian music, or risk fines from the government if they don't. To give you an idea of just who the broadcasters are afraid of most in this equation, they've pretty much universally bent to the demands of ZAMP.
“As of today, we decided to stop playing Macedonian music. Either way, we risk legal repercussions and steep fines,” one editor-in-chief of a regional radio station told BIRN under condition of anonymity.
And so, if you happen to be reading this in Macedonia at the time of this writing, you apparently can't hear any music made within that country on the radio. ZAMP took a dispute over how much money it got to collect as the only collection group in the country and managed to reduce that amount of money to absolutely zero by banning that music from broadcasts entirely. Seems like a recipe for new legislation that will further neuter ZAMP, as one imagines the artists it represents will be screaming bloody murder any moment now.
But, yeah, copyright doesn't hinder culture at all.
Today is "International Talk like a Pirate Day." While it's a lot of fun to act like a pirate, drink rum and catch up on Errol Flynn movies, piracy is also a serious issue with real economic and legal significance. As electronic devices become an increasingly ubiquitous part of our lives, the content we consume has moved from analog to digital. This has made copying – as well as pirating – increasingly easy and prevalent.
Adding fuel to the flames of this rising "pirate generation" has been the content industry's recalcitrant and often combative attitude toward digital markets. Piracy, and the reactions to it, has had an immense impact on the daily lives of ordinary Americans, shaping their digital experience by determining how they can share, transfer and consume content.
As soon as electronic storage and communication technology was sufficiently developed, digital piracy became accessible. Whether it's a song, movie, video game or other piece of software, you could suddenly reproduce it without having to steal it off a shelf or obtain any specialized machinery to counterfeit it. Additionally, if you wanted to listen to an mp3 of the latest Britney Spears album on your computer, there weren't many lawful options. This led to a surge in online piracy and helped foster a culture of online file-sharing.
The music industry historically has a reputation for being hostile to, or at least slow to embrace, digital markets. Yet there were also some major artists who were early innovators in the space.
Before Spotify or iTunes, there was BowieNet. This music-focused internet service provider launched in July 1998 and gave users 5MB of space to create and share their own websites, content and chat. On BowieNet, according to Ars Technica: "[f]ans could get access to unreleased music, artwork, live chats, first-in-line tickets, backstage access, tickets to private, fan club-only concerts." David Bowie saw the potential to help his fan base access his content and discuss it in a social way in the early days of the internet, before Facebook or Myspace. He remarked at the time: "If I was 19 again, I'd bypass music and go right to the internet."
Bowie wasn't the only early music pioneer of the internet. Prince was also an early unsung hero. In the early 2000s, he created NPG Music Group, later Lotusflow3r. He even won a Webby Lifetime Achievement Award in 2006. Unlike BowieNet, NPG and later Lotusflow3r provided releases of full albums.
As musicians and users were experimenting with new ways to share content on the internet, the United States was working with other World Intellectual Property Organization (WIPO) member countries to create the most comprehensive "digital" update to the Copyright Act. In 1998, President Clinton signed into law the Digital Millennium Copyright Act, which implemented U.S. WIPO treaty obligations, as well as several other significant titles (including the Vessel Hull Design Protection Act – which pirates of the nautical variety might care about). Of particular importance were the sections providing for "safe harbor" (Sec. 512), which protected service providers from infringing content generated by their users, and "anti-circumvention" (Sec. 1201), which was meant to stop pirates from hacking digital rights management (DRM) and similar restriction technologies.
Unfortunately, while the system worked when isolated incidents of infringement occurred on largely static web pages—as was the case when the law was passed in 1998—it is largely useless in the current world where illegal links that are taken down reappear instantaneously. The result is a never-ending game that is both costly and increasingly pointless.
While lawmakers were hard at work trying to find ways to quell online piracy, the courts weren't taking a nap. Indeed, going back to the 1980s, there were important judicial fights that would set the stage for how content would be handled on our electronic devices.
The U.S. Supreme Court's 1984 Sony Corp. of America v Universal City Studios Inc.decision coined what is known as "time shifting," referring to a user's ability to record a live show using the Betamax to watch it later. The court's decision set the precedent that a manufacturer would not be held liable for any contributory negligence or potential infringement where they did not have actual knowledge of infringement and their devices were sold for a legitimate, non-infringing purpose. As Justice John Paul Stevens wrote in the majority opinion:
One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible. It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written.
But not everyone was so enthusiastic. Jack Valenti, former president of the Motion Picture Association of America said in a congressional hearing two years prior [regarding VHS technology]:
We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.
The 9th U.S. Circuit Court of Appeals would take another approach in 2000s A&M Records v Napster. The court affirmed the district court's ruling that peer-to-peer services could be held for contributory infringement and vicarious liability. Even though their service merely facilitated the exchange of music as an intermediary, they were on the hook. Judge Marilyn Hall Patel wrote in the district court's ruling:
…virtually all Napster users engage in the unauthorized downloading or uploading of copyrighted music; as much as eighty-seven percent of the files available on Napster may be copyrighted, and more than seventy percent may be owned or administered by plaintiffs
Napster lodged several defenses, including fair use, but the most important (in lieu of the Sony decision) was the concept of "space-shifting," referring to the process of a user converting a compact disc recording to mp3 files, then using Napster to transfer the music to a different computer. Patel concluded Sony did not apply, because Napster retained control over their product, unlike Sony's Betamax, which was manufactured and sold, but not actively monitored.
The courts would continue ruling in a similar manner as other peer-to-peer services found themselves in the courtroom. At times, users would be targeted. And in the 2003 case of In re: Aimster, the pirates' bluntness for wanting to bring the music industry to its knees did not help the situation
What you have with Aimster is a way to share, copy, listen to, and basically in a nutshell break the law using files from other people's computers…. I suggest you accept aimster for what it is, an unrestricted music file sharing database – (posted by zhardoum, May 18, 2001)
Naturally with all of the music-sharing services were being shut down, the pirates found a new way to connect, share files and shape the industry. Which brings us to BitTorrent and websites like The Pirate Bay and Swepiracy. Torrenting does not require a central server, does not require direct streaming from one peer to another and the host does not contain any full file contents. All of the content received is from other users.
Sweden brought Pirate Bay to trial for both civil and criminal penalties. Per E. Samuelson, the site's attorney, lodged the now-famous (and familiar, for U.S. copyright scholars) King Kong defense:
EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of The Pirate Bay don't initiate transfers. It's the users that do and they are physically identifiable people.
The defense was unsuccessful. Which brings many questions to mind for future cases — how will courts begin to rule with such complex systems of file transfer as fragmented torrents? Targeting users is widely unpopular, especially in the United States, where statutory penalties range from $750 to $300,000 per willful infringing use and $200 to $150,000 for non-willful infringement.
Efforts around the world have continually been made to combat piracy. But maybe it's time we take a fresh look at the market. As the Copia Institute observed in a recent report, whenever there are new ways to share content legally, users ultimately respond by employing those technologies.
On this International Talk like a Pirate Day, let's take a moment to remember the pirates and how they have helped shape the internet era. While CD sales and digital downloads may be declining, new streaming services are on the rise (vinyl records are also doing remarkably well). The digital revolution has, indeed, changed how we consume and access our music. It has given us access to (nearly) everything, through services like Spotify and Apple music, at a reasonable price and with unparalleled convenience.
From the consumer's perspective, you now carry hundreds of hours of music on your phone and listen to it whenever you want – no need for one of those bulky CD binders. The slot where the CD used to go in your car is now an auxiliary cable jack.
From an artist perspective's, these are new challenges that require adaptation. Particularly in the case of music licensing, our pre-existing laws are unnecessarily complex, cumbersome and antiquated. However, innovative technologies and services are not to blame. Instead, we should seek new and equally innovative ways for artists to be compensated through more direct and transparent payments (such as Ujo).
While our copyright laws are far from perfect, we still have substantial freedom to remix, repurpose and share creative content online in a social context. This is essential to online free expression, digital commerce and the proper functioning of the internet itself. As additional discussions in Congress and in the courts move forward, let's make sure we keep it that way.
Yes, let's start with the obvious: John Oliver's "Last Week Tonight" is a comedy program meant to entertain and is not meant to be journalism. It's a point that Oliver himself has made repeatedly. But others disagree with him, pointing out that his show regularly does actual journalism. The fact that he's hired a bunch of journalists on his team kind of says a lot. Also, according to multiple people I know who have been interviewed for stories on his show, while his focus is on making things funny, his team also spends a lot of time making sure they get the details right. It's why we so frequently end up posting his videos on stories that relate to Techdirt topics -- because they're not only entertaining, but are also generally dead on in accuracy. It's why we've posted his videos on net neutrality, corporate sovereignty, encryption, surveillance, civil asset forfeiture and patent trolls.
But this past weekend, he not only covered last week's Republican National Convention, but also, separately, the fact that representatives for both Queen and the Rolling Stones complained publicly about the RNC using their music in prominent parts of the convention. Oliver got together a bunch of famous musicians (many of whom have protested politicians using their music) to sing a song telling politicians not to use their songs, claiming that it's "stealing" and unauthorized because the politicians didn't reach out to get permission.
This is flat out wrong in most situations. As we've pointed out again and again and again and again, in nearly all cases, politicians using music at an event have the proper licenses. They don't need to get permission from the musicians so long as either the campaign or the venue have ASCAP or BMI blanket licenses, which they almost always do. The whole point of ASCAP/BMI licenses is that you don't need to get individual permission from the artists or their publishers.
There are instances, occasionally, where politicians ridiculously don't have such a license, but it's pretty rare. And there may be a few other narrow exceptions, such as if there's an implied endorsement by the musicians, but that's rarely the case.
Unfortunately, the song from John Oliver and friends ignores all of that, even stating directly at one point that for a politician to use music, you first have to call the publisher. That's wrong. ASCAP and BMI already have taken care of that.
Perhaps this isn't a huge deal, but one would hope that Oliver would actually get the basic facts right on this too, because every election season this issue comes up and spreading more misinformation about it doesn't help.
It's pretty common knowledge at this point that the Chinese government spends a great deal of time and effort attempting to censor the internet at its own whim. And, while the walls of censorship erected are penetrable with enough effort, it still results in much of the population being unable to search out information that might be embarrassing to the Chinese government, such as references to the Tiananmen Square incident, for instance. But while examples like that can make some measure of sense to outside observers, even as they still decry the censorship, the fact is that the Chinese government's application of this censorship has been managed so erratically and unpredictably that the result is everyone watches where they step for fear of a takedown.
Hong Kong news outlet Apple Daily reports that China’s Ministry of Propaganda and SARFT, the regulatory body that oversees media, ordered China’s broadcast and websites to stop offering Lady Gaga songs. They also ordered media outlets not to publish anything (link in Chinese) about Lady Gaga’s meeting with the Dalai Lama, other than what prominent state-media publications have written.
“[Media outlets] must resolutely struggle against Tibetan independence, and closely follow reports from CCTV, the Global Times, People’s Daily, and other reports and commentary from central media outlets,” the directive reads, according to Apple Daily.
The Tibet issue is one that China regularly regulates in terms of coverage, of course, and the Dalai Lama is the worldwide person of focus for the cause of Tibetan indpendence. Even so, reacting to a meeting with an American pop singer by attempting to scrub the internet of news of the meeting and her music seems delightfully ham-fisted, even for Chinese censorship. And, as per usual, it isn't working particularly well.
A search on QQ Music, one of China’s most popular music streaming sites, shows there’s still plenty of Lady Gaga music available.
Which makes, as usual, the attempt at censorship come off as both petty and the wild flailings of an ineffective government agency. That, I would assume, is not the perception that the Chinese government was hoping to achieve. There will come a day when this particular government finally understands that these censorship attempts don't work in any way other than to supply a great deal of egg on its collective face, but that day is apparently not today.
The DataDUO is an interesting take on a synthesizer: it's designed to be accessible and fun for kids, and to be played by two people at once, especially as a collaborative creation tool for a parent and child. One side of the device is a basic dual-oscillator synthesizer with some simple cutoff and envelope controls, and the other is a circular sequencer with a pentatonic keyboard. The result is that it's very easy to create pleasing, harmonious melodies since almost any combination of notes you can generate will sound good — and it creates a back-and-forth between two users, with one controlling the melody that gets played and the other controlling the character of the synthetic sounds themselves. It probably won't be finding its way into many professional audio workflows, but it looks like a lot of fun to play with, and definitely serves as a great way to introduce kids to the basics of synthesizers.
For the more serious synth aficionado, the Crowminius offers an experience akin to one of the all-time classics: the Minimoog. It's a tightly designed fully analog synthesizer that packs into a compact case, and offers a great array of tools: three oscillators with six waveforms to choose from, robust modulation and control options, a white/pink/red noise generator (that can itself also serve as a modulator), and a distinct filter and amplifier. The whole thing is MIDI compatible and can also be controlled with old-school voltage signals, and it's perfect for synth modders and circuit benders as it's constructed entirely out of standard electronic components so it can be easily tweaked and expanded by those with the knowhow (not to mention repaired).
Not every modern, high-tech instrument has to be a synthesizer: the 3Dvarius is a stylish electric violin with a fully 3D-printed body. The design is modelled after the iconic and unmatched Stradivarius, but at a glance it looks like something out of a sci-fi movie prop box. The body is printed as a single, solid piece that has been carefully tweaked for maximum usability and sound transmission, and it also employs an extremely high-quality sound sensor so that it doesn't need a preamp like most electric violins — meaning its sound fidelity is as faithful as possible, with no additional noise and no distortion of the sounds truly coming out of the strings.
This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer:
A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:
Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:
We reject that interpretation of § 114(b). Bridgeport
ignored the statutory structure and § 114(b)’s express
limitation on the rights of a copyright holder. Bridgeport also
declined to consider legislative history on the ground that
“digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting
Congress’ intent as to statutory structure. Moreover, as
Nimmer points out, Bridgeport’s reasoning fails on its own
terms because contemporary technology plainly allowed the
copying of small portions of a protected sound recording....
Close examination of Bridgeport’s interpretive method
further exposes its illogic. In effect, Bridgeport inferred from
the fact that “exclusive rights . . . do not extend to the making
or duplication of another sound recording that consists
entirely of an independent fixation of other sounds,”
... the conclusion that
exclusive rights do extend to the making of another sound
recording that does not consist entirely of an independent
fixation of other sounds. As pointed out by Nimmer,
Bridgeport’s interpretive method “rests on a logical fallacy.” ...
A statement that rights do not extend to a particular circumstance does not automatically mean that the
rights extend to all other circumstances. In logical terms, it
is a fallacy to infer the inverse of a conditional from the
The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:
We disagree for three reasons. First, the possibility of a
“physical taking” exists with respect to other kinds of artistic
works as well, such as photographs, as to which the usual de
minimis rule applies.... A
computer program can, for instance, “sample” a piece of one
photograph and insert it into another photograph or work of
art. We are aware of no copyright case carving out an
exception to the de minimis requirement in that context, and
we can think of no principled reason to differentiate one kind
of “physical taking” from another. Second, even accepting
the premise that sound recordings differ qualitatively from
other copyrighted works and therefore could warrant a
different infringement rule, that theoretical difference does
not mean that Congress actually adopted a different rule.
Third, the distinction between a “physical taking” and an
“intellectual one,” premised in part on “sav[ing] costs” by not
having to hire musicians, does not advance the Sixth Circuit’s
view. The Supreme Court has held unequivocally that the
Copyright Act protects only the expressive aspects of a
copyrighted work, and not the “fruit of the [author’s] labor.”
... Indeed, the Supreme Court in Feist explained at
length why, though that result may seem unfair, protecting
only the expressive aspects of a copyrighted work is actually
a key part of the design of the copyright laws....
Accordingly, all that remains of
Bridgeport’s argument is that the second artist has taken
some expressive content from the original artist. But that is
always true, regardless of the nature of the work, and the de
minimis test nevertheless applies.
And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:
Because we conclude that Congress intended to maintain
the “de minimis” exception for copyrights to sound
recordings, we take the unusual step of creating a circuit split
by disagreeing with the Sixth Circuit’s contrary holding in
Bridgeport. We do so only after careful reflection because,
as we noted in Seven Arts Filmed Entertainment Ltd. v.
Content Media Corp.,..
“the creation of a circuit split would be particularly
troublesome in the realm of copyright. Creating inconsistent
rules among the circuits would lead to different levels of
protection in different areas of the country, even if the same
alleged infringement is occurring nationwide.” ... We
acknowledge that our decision has consequences. But the
goal of avoiding a circuit split cannot override our
independent duty to determine congressional intent.
Otherwise, we would have no choice but to blindly follow the
rule announced by whichever circuit court decided an issue
first, even if we were convinced, as we are here, that our
sister circuit erred.
It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:
After listening to the recordings, we conclude that a
reasonable jury could not conclude that an average audience
would recognize the appropriation of the composition.
Furthermore, the fact that the sample was modified helps Madonna's case:
The horn hit itself was not copied precisely. According
to Plaintiff’s expert, the chord “was modified by transposing
it upward, cleaning up the attack slightly in order to make it
punchier [by truncating the horn hit] and overlaying it with
other sounds and effects. One such effect mimicked the
reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was
prolonged and heightened.” Moreover, as with the
composition, the horn hits are not isolated sounds. Many
other instruments are playing at the same time in both Love
Break and Vogue.
The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:
We hold that the “de minimis” exception applies to
actions alleging infringement of a copyright to sound
Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.
There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:
The plaintiff is the owner of a copyright in a fixed sound
recording. This is a valuable property right, the stock-intrade
of artists who make their living recording music and
selling records.... It is no
defense to theft that the thief made off with only a “de
minimis” part of the victim’s property.
And then there's this:
True, Get a license or do not sample doesn’t
carry the same divine force as Thou Shalt Not Steal, but it’s
the same basic idea. I would hold that the de minimis
exception does not apply to the sampling, copying, stealing,
pirating, misappropriation – call it what you will – of
copyrighted fixed sound recordings. Once the sound is fixed,
it is tangible property belonging to the copyright holder, and
no one else has the right to take even a little of it without
It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.
Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.
Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:
If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.
The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:
The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.
Just because you can license some samples doesn't fix the situation:
Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.
In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.