Michael Robertson has a long history of pushing the boundaries of copyright law, by going where the technology allows, even if the law hasn't quite caught up yet. As such, he frequently finds himself on the wrong end of legal actions from legacy players who hate being disrupted. Last year, we wrote about his DAR.fm effort, which basically is an online DVR for broadcast radio. He's now taking that even further, with the launch of UberTalk, an online directory of what's on radio right now (and in the future). You know your basic online (or on screen) TV guides? Yeah, UberTalk is that, but for radio -- with the convenient ability to play... or to record and time shift anything you'd like.
Given the state of radio today, this seems really, really useful. But, is it legal? We've already seen legal threats pointed at DAR.fm, and I can't imagine that all the broadcast folks will like this either -- even though it only increases the value of their product by making it more easy to find and useful.
What we're seeing, yet again, is how the technology allows for something really useful that adds value to both the content and for the users. And yet... copyright law makes it very, very difficult to pull off. Why? Because copyright law is purposely built around keeping the status quo, not about encouraging innovation. So you have yet another clear case where it seems like copyright law is holding back "the progress" rather than helping to speed it along.
Neil Young apparently isn't too concerned about copyright infringement these days, according to his comments at the D: Dive into Media conference:
It doesn't affect me because I look at the internet as the new radio. I look at the radio as gone. [...] Piracy is the new radio. That's how music gets around. [...] That's the radio. If you really want to hear it, let's make it available, let them hear it, let them hear the 95 percent of it.
Of course, that's a bit of a reverse from back when he was angry that YouTube wasn't paying him money when people uploaded his songs. Still, it's good to see him come around to the view that infringement is, basically, a new form of radio. Artists like Chuck D have been making that argument for over a decade.
Young is still concerned... but about the fact that the quality of MP3 files sucks. He'd prefer technologies that provide a much fuller sound:
Steve Jobs was a pioneer of digital music, his legacy was tremendous. [...] But when he went home, he listened to vinyl.
One phenomenon we often write about on Techdirt is how the internet has completely killed the music industry and how it has turned our world into a culturally barren wasteland, deprived of art and even joy. More accurately, we write about people who say such things and point out the inaccuracies, ignorance or basic flaws in their logic.
Critically acclaimed pop culture critic Simon Reynolds was recently interviewed by Andrew Keen and made a bunch of generalizations and claims that are in seeming contrast with his progressive outlook previously shown in musings about punk and post-punk, as well as rave culture.
The interview starts off as you expect it would:
"It's much less likely that you'll be able to make a living doing it."
And how have you measured that 'likelihood'? Even if there are less people making a living from making or performing music, a claim for which I have yet to see good proof, is it really less likely that anyone will be able to make a living off of it?
Instead of backing up his claim, Reynolds continues and discusses the way things used to be in a romantic tone which doesn't change as he compares the old label-centric model to a "lottery", with artists usually having to get "in the red." Misplaced nostalgia. What a long way we have come from that - from a world where artists were at the mercy of corporations to a world of empowered artists in which they are at the mercy of their fans, their customers.
In fact, people have a much larger chance to make a living from music these days. This can be witnessed very clearly in electronic genres, where it is the norm for people to start as 'bedroom producers' and, if they're good enough, they'll get picked up by blogs, then labels and will then be able to build a proper studio and make a living from touring. If they're good enough, according to fans and curators within their niche - not according to label execs or music journalists. Anyone can become a producer and anyone that manages to find an audience and connects with them properly has the opportunity to start making a living from it. It's not easy, but at least it's not a lottery.
"A generation has come along who don't think they should pay for music."
Then explain Justin Bieber. Where does the demand for his merchandise come from? Who is attending his tour events? About 30% of all music recordings are still bought by people under 30, the generation that grew up with the internet. Even the RIAA's numbers show it. That does not take into account live shows or other ways of 'paying for music'. True, the same group used to be responsible for 45% of the purchases, but that still doesn't mean they don't believe in paying for music. Just because only 20% of teenagers will clean up their room out of their own free will, that doesn't mean an entire generation has come along who don't think they should clean. Then again, where would music be without people talking about new generations they do not understand.
"I think there's something about paying for music that makes it more intense; you've got to listen harder to music. If you pay for it you're going to pay attention to the record you bought and get your money's worth."
Does music that depends on the psychological phenomenon of cognitive dissonance really deserve to be bought? At the end of the day, music being available in a 'feels like free' manner, for instance via YouTube or Spotify, means that your music has to stand out. Either by being really good or by having a unique sound. Preferably both. Quality gets rewarded with attention and attention is what can be monetized down the line. No more lotteries.
Then follows a breakdown of mash-ups. Two lines really stand out:
"A mash-up is not something that you'd really want to listen to more than a few times because it's like a joke, isn't it, really?"
"And they're not adding anything. They're not adding--they're not a contribution to the future of music, I don't think."
Come on! That's what my parents said about house music when I first heard it as a kid. Those statements, especially the latter, sound like an echo of the criticisms early rave innovators like Shut Up And Dance and The KLF received from the previous generation that did not understand the new revolution in music.
Perhaps some explanation is needed. Part of the mash-up culture is indeed like an out of control meme - nerd humor at its finest, focused more on the joke than on the art. However that's definitely not what all mash-ups are. Take a look at this live mash-up by Madeon, which we covered a while back:
Or look at Girl Talk. Or look at absolute classics like De La Soul's 3 Feet High And Rising album, which is basically composed of intricate mash-ups layered with raps. The same for the Beastie Boys' Paul's Boutique album, of which someone composed a great Spotify playlist with all the tracks that were sampled on the album by the way.
Many new, trendsetting genres, such as dubstep or moombahton, rely or have relied heavily on remixing, altering or mashing-up previous works. The outright dismissal of mash-ups as a contribution to the future of music is nothing new though. This dismissal was false when hiphop and house DJs started mashing up disco and funk records in the late 70s and early 80s, and it is false today. Mash-up culture is pop art on steroids.
After Keen notes that "you're not allowed to be on TechCrunch and be too miserable," they aim to end the interview on a cheerful note and start talking about radio (yes, really).
"Anything that can take on the role that radio used to have and deliver new things to people that they're gonna like. It's gonna prosper."
I think he's on to something there. Personally I have very high hopes for something called... the internet. It's common to see people looking for ways in which 'new technology X' can replace 'old technology Y', although that's never the people that grew up using the new technology. The internet's purpose was never to create a way to replace old technologies with some a single new alternative. What the internet has done is take all the different roles of radio such as curator, broadcaster, gatekeeper, commentator, critic, entertainer and more, and it has separated or perhaps eliminated some. Now anyone can take on one of those roles or any combination thereof. It's no longer something exclusive.
Hope you don't mind the sarcasm here and there, Simon. You've got a great mind, but I couldn't let these claims go by unchallenged. If you'd like to retort, please get in touch. We'd be glad to feature it on here.
Personally, I think this is an awesome time for both musical artists and fans right now. There is so much opportunity and freedom. I think it's a great time for music and perhaps it will take some more years and further disruption for some folks to finally be able to see that -- just like the general music industry's shifted opinion about that De La Soul album mentioned above, which was initially met with plenty of animosity from the traditional industry. Luckily, true pioneers ignore such animosity, move on and set the standards for tomorrow for both musical artists and fans.
I'd never heard the song, but the specificity of the phrase, and the fact that it has absolutely nothing to do with copyright -- other than mentioning that phrase -- immediately sent me searching for more info on the phrase and the song. It turns out that it's from the Broadway show, "The Gang's All Here," which was apparently a total flop (23 performances). According to the notes on another rendition of the song the show tanked in part because the star of the show would come out and warn the audience that the script was horrible, and the show should have been a revue, rather than a "book show." That version of the song has a few more lyrics at the beginning, which provide another clue to the oddity of the lyrics. It starts out saying:
Every time a radio is playing
"and next... you will hear us play
something with the publisher's okay."
Listening to this great announcer trilling
Told me what to do
Try this very notion out on you...
And from there it breaks into the same lyrics in the first version above. So we're a step closer to understanding the details of the phrase. And then... I found this fantastic Time Magazine article from August of 1932 that explains how the music industry was dying because of radio, and that our friends at ASCAP required radio stations to not just get permission to play any song on radio, but also to make the statement that was the title of that song, with "no facetious trifling":
The American Society of Composers, Authors & Publishers is Tin Pan Alley's clearing house. Its 800 composer & publisher-members own the copyrights to nearly all the music composed in the U. S. since 1914. It is affiliated with similar societies abroad. To many radio listeners and broadcasters the phrase "by special permission of the copyright owners" has been irksome. A. S. C. A. & P. used to insist upon it, permitting no facetious trifling with the announcement. Lately, however, it lifted this requirement. Most of its songs may be performed without special permission, but a number are restricted, for example musical comedy songs which the producers do not wish to be too soon familiarized.
That's ASCAP. Pissing people off for nearly a century. But what was a lot more entertaining about the article was the paragraph above this, in which it seemed to suggest that radio was absolutely killing music. Stop me if you've heard this before, but the refrain may be familiar:
Tin Pan Alley is sadly aware that Radio has virtually plugged up its oldtime outlets, sheet music and gramophone discs. The average music publisher used to get $175,000 a year from disc sales. He now gets about 10% of this. No longer does a song hit sell a million copies. The copious stream of music poured out by Radio puts a song quickly to death. The average song's life has dwindled from 18 months to 90 days; composers are forced to turn out a dozen songs a year instead of the oldtime two or three.
Has there ever been a time, ever, in which the music industry's established players weren't complaining about the industry dying?
Musician (Gang of Four) and marketing guru, Dave Allen, recently put up one of his insightful blog posts, questioning where the real disruption in online music is these days, and complaining that all of the services we see out there today are basically just "creating radio on the internet." And they're all almost identical.
The modern version of that is the wholesale commoditizing of music catalogs by the labels who create licensing deals with the streaming music services. Those actions in turn further homogenize the streaming music service systems as the services only have access to the same catalogs – there is no differentiation. Artists get pennies, or less than a penny, when someone streams their song, and the listener gets advertising in the stream unless they pay to escape the ads.
Music streaming on the web is not a Big Idea, it’s simply a lack of intellectual vision and thinking. Worse, it has advanced the “passive listening” experience. It’s just terrestrial radio dumped on to the web in other words – including advertising....
The bottom line is that there is no differentiation at the end of the day between Mog, Rdio, Spotify, Rhapsody, and all the others too numerous to mention, if they all have the same music catologs – widgets and tactics don’t count.
I agree that we haven't yet seen all that much that's really innovative in music, but I'm not as worried about it as Dave. As I noted about the SF MusicTech conference (where Dave moderated a panel on exactly this subject), it really felt like we'd finally gotten past the doom and gloom and started looking at the real opportunities in the music business today. I think that much of the lack of innovation is because pretty much anyone who has really tried to innovate has been shot down by lawsuits. Seriously. The second you do something marginally innovative that starts getting attention, a major label comes up with an excuse to sue, mainly to regain some amount of control. So these clone music services are, in part, a reaction to all of that. The reason they all look the same is because they now know what it takes to fall into line and not get sued.
But I don't think that's a problem for the next wave of innovation in the space. Yes, many of these services effectively replicate radio on the internet today. But when you look through history, that often is the first wave of history when dealing with new media. You take the old media and move it to the new platform. It takes a generation or two before people start to recognize that the new media has special or different characteristics that really let you do something unique and new. Then it takes a little while before people start figuring out what that is. It's why I'm excited about things like Turntable.fm. Whether or not it's really the next generation offering that becomes a success story, it is a sign that people are finally starting to branch out and try things that are unique and different and really only possible on the medium of the internet.
In fact, while I'm a fan of Spotify and Pandora, since playing with Turntable.fm, I always feel sort of disappointed that I can't merge the three. Spotify has a huge collection, and I'd love to be able to move my playlists directly into Turntable.fm, or use Pandora's matching engine to find similar songs to what I'm playing or what others are playing within Turntable.
So I think we're just entering the very beginning phase of real innovation in the music service market space. The companies here today may or may not survive. Or maybe they'll drive the changes and come up with the next great innovations themselves. But it's still early in the game.
Over at the Tunecore blog, former Rykodisc President George Howard has a post up explaining how payola works today in the world of major labels and radio stations. While I know that a large percentage of folks reading this here are rushing to the comments to declare "ha! who listens to radio any more!" the fact is that a ton of people do, and for the major labels, it's still a key (if not the key) way to "break" an act. And even though the labels keep getting dinged every decade or so for payola, the process never seems to change much, other than greater efforts to separate out the transactions so that the record labels can pretend that they're not bribing radio station employees, even though everyone knows that's exactly what's happening:
Getting a song “added” to a station’s playlist to get a certain number of plays per week involves a rather byzantine process that brings in various parties, called independent promoters (“indies”). These “indies” are first paid by the label. It’s important to note that the money the indies receive isn’t necessarily compensation paid directly to them for getting Program Directors to get a song played. Rather, they work more like an intermediary to pass the label’s money to the radio station. These indies, with the money paid to them from the labels, pay the radio station money for various listener give-aways, bumper stickers and so on. To top it off, these very same indies are often also paid a second time by the stations themselves as a consultant to advise the stations on what songs they should play.
Because of this, the major labels absolutely dominate radio airplay. Independent labels could try to hire the same indie promoters, but won't get the same attention anyway:
Here’s why: You’ve come to these indies, and they’ve gone to the labels, and they’ve taken your money, and they know that you’re probably not coming back any time soon. On the other hand, the majors are coming every week with money and new artists. Who would you prioritize if you were in the indie/radio station’s shoes?
Now, as Howard notes, and many of you probably have already realized, this is not a sustainable system. Because if radio keeps playing crappy songs based on bribes rather than quality, in an age where there are greater and greater alteranatives, the system won't hold. More and more people will go elsewhere, where there's more choice and fewer guys with briefcases full of cash making the decisions.
If you're wondering exactly why the labels have been trying to shut down popular hip hop blogs recently, look no further than this story. Such blogs have really become "the new radio" for creating hits for the younger generation. But, unlike the old radio, the major labels don't "control" these blogs in the way they control radio. While some of it may just be the left hand not knowing what the right hand is doing, there are at least some who see this as an opportunity to "regain control." Forcing blogs offline and/or trying to significantly limit them is a pure power play by the labels against hip hop blogs. It's got nothing to do with copyright or being worried about someone's songs leaking. It's why the RIAA is out there sending takedowns on music that a Universal Music employee purposely put online for free.
Now I've said before that I'm not convinced that payola for radio play is necessarily wrong or bad. A play on radio is effectively a commercial for that music/musicians. And paying for commercials is (obviously) fairly common. Is it really so crazy that some in the industry want to "buy" spots? I get the argument concerning the lack of transparency. And, in fact, as technology becomes more widespread, and as the next generation of services launches, radio stations are going to be forced to move away from payola not because they don't like the practice... but because people won't be relying on radio so much for leaning about new songs. For the time being, it's likely that these kinds of situations will last. But consumers just aren't going to stand for it that much longer.
In response, pirates have been setting up stations using collapsible antennas (some reaching as high as 40 meters) in order to shift venues, as it were, should The Man suddenly appear. In response to the pirates' response, the Radio Communications Agency has expedited its processes to the point that it can now make this amazing/perhaps unbelievable claim:
The illegal broadcasters could be fined 2,500 euros just half an hour after receiving a warning letter.
Without any further details forthcoming, it's hard to imagine how this works. Here in the U.S., it can take months for the FCC to hand down a judgment and fine offending pirate radio stations. Officials in the Netherlands have been able to push their turnaround time down from several weeks over the past several months, and they've got a smaller area to police, but a half hour?
If it can trim it to a half hour between the arrival of the warning letter and the fine, wouldn't it just be easier to include the paperwork for the fine in the same envelope? Or is someone trailing the mail carrier with his or her fingers poised on the speed dial for the local enforcement team? The mind boggles. (And by "boggles," I mean "tends not to believe.") Or maybe it's some sort of EULA ("By reading this letter, you agree to be fined directly for illegal broadcasting...) wrapped in a Mission Impossible-esque self-destruction device, only instead of self-destruction, your warning letter morphs into a bill for $2,500 Euros.
No matter the delivery method, it's a bold claim, one equaled only by Domino's Pizza's long-remembered (but oft-violated) slogan of "30 minutes or it's free." Unfortunately for the pirates, there's nothing free about this offer.
When webcasting first started to become popular, as with any new and useful offering, the RIAA was quick to try to kill it off with ridiculously high licensing fees. While there was some back and forth over the years, the current fees make it nearly impossible to legally stream music online profitably. But, the details are even worse than you think. Even if you are paying the super high fees (which are much higher than terrestrial radio), there are all kinds of restrictions as well. Michael Scott points us to an excellent article in the Tufts' student paper highlighting how these restrictions are harming college radio without any benefit. As the article notes, they are:
"now prohibited from forwardly announcing song titles, broadcasting more than three songs from the same album or four songs from the same artist in a three-hour period, making archived webcasts of their shows available online for longer than two weeks and making those webcasts available for download."
The article points out that nothing in these restrictions will stop people from illegally downloading music, but they will serve to create an annoyance for the DJs who put together the programs for this station, and for listeners. Making shows available to download as podcasts, seems like a perfectly reasonable thing to do to build up a fanbase. But... not allowed. The whole thing about preventing three songs from an album or four songs from the same artist in a three-hour period is the RIAA's ham-fisted way of trying to stop DJs from playing a whole album straight -- but it also kills off programs dedicated to a single artist. The article mentions, for example, how the University of Michigan's radio station can no longer air a radio show it used to have, dedicated to Duke Ellington. When I was in college, our student-run station had a show dedicated to the Beatles, which I imagine also could not be run today under these rules. Now, the article doesn't mention that there apparently are some ways to get waivers for these restrictions, but they appear to only be in very limited cases, and the details are somewhat secretive.
Yet another case of the DMCA putting in place ridiculous restrictions that do nothing to actually stop unauthorized copying.
We've discussed, for quite some time now, the ridiculousness of a performance rights tax on radio. This is the attempt, by the record labels, to get radio stations to pay performers for advertising and promoting their music. This is clearly not needed, because in the real world, without this, record labels already know that radio play is valuable: it's why they keep running payola scams. For them to try to then legally mandate that money should flow in the opposite direction is downright ridiculous. In what world does the government make someone pay to promote someone else?
After years and years fighting this, we should have known that the NAB would come up with some ridiculous idea in the end. The NAB, which represents broadcasters, is almost always on the wrong side of policy debates (that's what happens when your job is to protect a dying industry), but on this one issue we agreed... until now. Rumors are circulating that the NAB is willing to cave on performance rights, if the RIAA, in exchange, supports a totally wasteful plan to require FM radio receivers be placed in mobile phones, MP3 players and other digital devices. Now, everyone involved says no deal is done yet, but there are multiple indications that this is exactly where the conversation is heading.
The NAB tries to defend this by comparing FM radio -- a dying technology -- to federal mandates on digital television tuners. That, of course, was entirely different in so many ways. It involved attempts to move the country forward to a new technology, not mandating an obsolete one. It also was done for a very specific reason: to try to recapture tons of valuable spectrum that could be put to much more valuable and practical use. Mandating FM tuners is just a waste of time and money in a quixotic attempt by broadcasters to prop up FM radio. My mobile phone has an FM receiver today, and I've never even looked at it. Some manufacturers have chosen to put this technology into devices today -- and that's fine, if they choose to do so. But, mandating it as part of a backroom political deal? No thanks.
We recently wrote about a UK hairdresser being fined for not paying the PPL license for playing a radio in his shop -- even though he'd already been paying the PRS license. Now, if you follow this stuff, you probably know that PPL and PRS cover different aspects of collective licensing, but it strikes many, many people as being patently ridiculous that they need to pay two separate license fees just to turn on a radio in your shop. That story has a rather epic comment thread (well over 500 comments at this point), mainly involving one very, very insistent UK resident who sees no problem with this setup. Of course, he also states that if something is in the public domain it means no one's allowed to sell it at all -- so he's a bit confused on the subject.
In the meantime, however, it appears that PPL has decided that targeting hairdressers and barbershops is in the best interests of its members. mike allen points us to the news that a second hair salon in the same town has been hit with fines. Like the first, she had no idea she had to pay two separate licenses just to turn on her radio, and thought that when a PPL person called (and wouldn't leave a callback number) that it was an obvious shakedown scam. Unlike the other guy, this hairdresser is refusing to pay, saying that the whole thing is ridiculous, seeing as she already paid for a license from PRS.
Once again, while people who are heavily involved in this stuff understand the difference between the licenses, it's pretty ridiculous for anyone to expect a mom & pop shop owner to do the same. All these actions are doing is convincing everyday folks just how ridiculous copyright law is -- while, at the same time, convincing these shops to just turn off their radios, which helps no one. It's such an incredibly short-sighted view by PPL.