Posted on Techdirt - 6 February 2012 @ 7:17pm
Mark Zuckerberg's letter to shareholders included in Facebook's IPO filing contains a pretty bold vision for Facebook to not just connect people and enable them to share, but to fundamentally restructure the way that the world works:
By helping people form these connections, we hope to rewire the way people spread and consume information. We think the world’s information infrastructure should resemble the social graph — a network built from the bottom up or peer-to-peer, rather than the monolithic, top-down structure that has existed to date. We also believe that giving people control over what they share is a fundamental principle of this rewiring.
We have already helped more than 800 million people map out more than 100 billion connections so far, and our goal is to help this rewiring accelerate. [emphasis added]
That sounds pretty lofty, but if you recognize that Facebook provides a social networking service that hundreds of millions of people use -- but forget for a moment that it's Facebook -- it's quite a bold "social mission." And there are many examples of how the service has been used as a key tool in affecting change on everything from opposition to the Canadian DMCA to the Arab Spring. There's no doubt that the service makes it easier for people to organize in a more bottom-up way.
But, once you remember that it's Facebook we're talking about, the vision sounds more problematic. Could Facebook ever truly bring about a peer-to-peer, bottom-up network? The notion seems to be an inherent contradiction to Facebook's architecture -- as a centralized, proprietary, walled garden social networking service. Facebook may enable a more bottom-up structure, but it's a bit disingenuous for Zuckerberg to decry a monolithic, top-down structure when Facebook inserts itself as the new intermediary and gatekeeper. As a centralized, proprietary, walled garden service, Facebook is a single point for attacks, control, and surveillance, never mind controversial policies or privacy concerns. Facebook may enable a more bottom-up and peer-to-peer network compared to many things that came before, but there is something fundamentally at odds with a truly distributed solution at the core of its architecture and its DNA.
To realize the full potential of bottom-up, peer-to-peer social networking infrastructure, we need autonomous, distributed, and free network services -- the sort of vision that StatusNet/Identi.ca or Diaspora have tried to bring about. Rewiring the world to create a more bottom-up, peer-to-peer network is a bold vision for Zuckerberg to put forth -- and one that Facebook has advanced in many ways -- yet it's fundamentally at odds with the reality of Facebook as a centralized and proprietary walled garden.
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Posted on Techdirt - 6 February 2012 @ 9:39am
in 2007, the Songwriters Association of Canada gained some international headlines with a proposal to legalize non-commercial peer-to-peer file sharing through an ISP levy. This sort of proposal wasn't new, but had not been so prominently put forth by an artist organization before. There were serious problems with the proposal, but it stimulated a healthy debate and it started from many correct premises -- that file sharing should be embraced, that digital locks and lawsuits were not a way forward, etc. But it was a non-voluntary, "you're a criminal" tax that could open the floodgates for other industries to demand similar levies.
I was a member of the Songwriters Association of Canada from 2007-2011, and I had the opportunity to express my concerns about the proposal to many people involved. Last year, I attended a session with an update on the proposal, and was surprised how much it had changed. The proposal had dropped the legislative angle in favor of a business to business approach, with an actual opt-out option for both creators and customers of participating ISPs. Unlike groups behind other licensing proposals, the SAC has actually been responsive to many concerns, and unlike other artist groups, the SAC takes a decidedly positive view on sharing music and the opportunities technology provides to creators. This attitude comes through in the proposal:
Rather than a legislative approach to the monetization of music file-sharing as we originally envisioned, the S.A.C. is now focused on a “business to business” model that requires no new legislation be enacted in Canada.
Our basic belief however remains the same: Music file-sharing is a vibrant, open, global distribution system for music of all kinds, and presents a tremendous opportunity to both creators and rights-holders. [...]
People have always shared music and always will. The music we share defines who we are, and who our friends and peers are. The importance of music in the fabric of our own culture, as well as those around the world, is inextricably bound to the experience of sharing. [emphasis changed]
As the copyright debate heats up again in Canada in light of SOPA and new pressures on pending legislation, this positive attitude towards peer-to-peer file sharing was expressed again in a recent TorrentFreak interview with the SAC VP, Jean-Robert Bisaillon:
We think the practice [of file-sharing] is great and unstoppable. This is why we want to establish a regime that allows everyone to keep on doing it without stigmatizing the public and, instead, find a way for artists and rights holders to be fairly compensated for the music files that are being shared. [...]
Other positive aspects include being able to find music that is not available in the commercial realm offer, finding a higher quality of digital files, being able to afford music even if you are poor and being able to discover new artists or recommend them to friends. [...]
Music is much better off with the Web. The internet network allows for musical discovery despite distance and time of the day. It has sparked collaborations between musicians unimaginable before. It has helped artists to book international tours without expensive long-distances charges and postal delays we knew before. [emphasis added]
However, significant problems remain with the proposal. For example, the original criticism still stands as to how this would scale for other industries -- what about book publishers, newspapers, movie studies, video game manufacturers and other industries that are also crying foul about "piracy"? The SAC dismisses other cultural industries pretty quickly, as if only the music industry is concerned about unauthorized copying. And, just like private copying levies have suffered from scope creep, as people no longer buy blank audio cassettes or CDs, or short-sightedness, as technology changes rapidly, it's not clear how the SAC model would adapt to growing wireless and mobile computing or more distributed file sharing. Many more questions remain: Would small, independent artists, who are not charting through traditional means, get fair treatment? Is it wise to largely rely on a single, proprietary vendor, Big Champagne, for tracking all distribution? Would consumers be paying multiple times for music? What does it mean to "self-declare not to music file-share" in order to opt-out?
But the central problem with the proposal is the SAC's copyright crutch. Jean-Robert Bisaillon says things like,
The Internet has dramatically increased the private non-commercial sharing of music, which we support. All that is missing a means to compensate music creators for this massive use of their work. [emphasis added]
And the proposal says things like,
Once a fair and reasonable monetization system is in place, all stakeholders including consumers and Internet service providers will benefit substantially. [emphasis added]
The SAC seems obsessed with a "monetization system," when the truth is there is no one model
, no magic bullet
. Rather, the the sky is rising
and the path to success involves all sorts of different models
and creative approaches, most of which don't depend
on copyright or worrying about getting paid for every use
. Even a voluntary license plan is still a bad idea
. The means to compensate music creators isn't missing, it's just increasingly found outside of copyright.
Still, it's important for the SAC's voice to be heard as the copyright debate heats up again in Canada. As a creator group offering a positive take on peer-to-peer file sharing, and denouncing an "adversarial relationship" between creators and fans, they offer an important counterpoint to the SOPA-style provisions being pushed by Canadian record industry groups. I would take the SAC's constructive and responsive approach over record industry astroturfing and fear mongering any day.
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Posted on Techdirt - 9 August 2011 @ 10:06pm
Two of Canada's big three telcos have recently appointed former cabinet ministers of the ruling party's government to their respective boards. A few weeks ago, Bell appointed Jim Prentice, who was responsible for telecom policy and regulating companies like Bell while serving as Minister of Industry in 2007-2008. Then, while former cabinet minister Stockwell Day's new "government relations" not-a-lobbying-firm has raised concerns about loopholes in lobbying laws, this past weekend Telus named Day to its board. (How long until Rogers aligns with industry standards and finds an ex-minister of their own?) OpenMedia.ca decried both appointments as examples of big telecom "cozying up to the government," but journalist Peter Nowak argues it's the system's fault: "Lobbying is so pervasive and deeply integrated" into the system that the only way to deal with it seems to be to "fight fire with fire," as even new wireless carriers have quickly learned -- i.e. don't hate the players, hate the game.
Neither Prentice nor Day will be lobbyists, but it seems obvious that their knowledge of government is being sought for the purposes of lobbying. In the broadband space, Bell has been butting heads with the government and regulators over issues like wholesale usage-based billing. In the wireless space, the next spectrum auction is approaching and incumbents want to avoid a repeat of the last auction, where 40% of the spectrum was reserved for new entrants and the government forced incumbents to offer roaming agreements -- rules ironically set by Bell's new board member, Jim Prentice.
Are these appointments examples of regulatory capture? It might appear that way. It's certainly a case of telcos gearing up for a heavy round of lobbying that's unlikely to favor consumers, but it's hardly a case of blatant revolving doors. Day was not actually responsible for telecom policy, and Prentice was behind rules that angered incumbents. If the government favors incumbents in the next spectrum auction or backs down on wholesale usage-based billing, that would be a different story, but Canadian incumbents are scrambling because they've lost some big battles. This isn't so much a cause for deep concern as it is a challenge to those who favor more competition in Canada to keep pressing the government to follow through on what it's started.
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Posted on Techdirt - 9 May 2011 @ 10:05pm
A recent blogger meet up hosted by the Vatican received some attention for comments with which Techdirt readers would be familiar on copyright, attribution, and new media business models. For example, Italian blogger and author Mattia Marasco highlighted the importance of attribution, but said that copyright is "an old model," when it comes to new media, and Dutch podcaster Father Roderick Vonhogen said that journalists will have to get used to their material being reused, but those who focus on quality will make it. The ideas are nothing new (and just some of many expressed at the event), but it'll be interesting to see if the Vatican is listening. Marasco and Father Roderick are not Vatican officials, though in recent years the Pope and other Vatican officials have expressed concern over "an unduly rigid assertion of the right to intellectual property." (The Holy See has, however, asserted its own right to protect the figure of the Pope, but it's unclear what exactly that means.) The Vatican also announced an upcoming News.va website, which will make extensive use of social media and apparently use a non-commercial Creative Commons license (according to Father Roderick [33:40]). Not bad for a 2000-year-old institution. There was also a call for the Holy See Press Office to consider bloggers, when releasing advanced copies of Vatican documents. The meeting was intended to open a dialogue between bloggers and the Vatican, so it'll be interesting to see what the Vatican takes to heart from the encounter and how they continue down the new media path.
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Posted on Techdirt - 23 September 2010 @ 3:17pm
"This [personally identifiable] information may also be kept longer than 6 months by EMG if a user is found by EMG's soul judgment to be suspect of carrying out illegal, unlawful, or dangerous actions with or in this service. Prior to keeping IP address information for more than 6 months, the user will be notified via email about their suspect status."
Somehow, I don't think Grooveshark actually intends to judge a person's immaterial soul for evidence of suspicious activity. But, lest you think it's a lone typo, the phrase "soul purpose" also appears later in the policy.
"EMG may allow 3d parties to place cookies and other tracking technologies, such as web beacons, clear GIFs, web bugs, tracking pixels on the Site for the soul purpose of allowing that 3d party to record that a User has visited the Site and/or used the Service."
I think they meant "sole." Somewhere, in the depths of my own soul, it feels like somebody was relying on spell check a bit too much...
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Posted on Techdirt Wireless - 23 September 2010 @ 1:02am
With schools, cell phones and a politician in the same headline, you'd think the story would be about another attempt to ban technology, but in Ontario, Premier Dalton McGuinty is telling schools to be open to uses for cellphones in the classroom.
McGuinty, who won't even let his ministers keep the devices during cabinet meetings, said he understands they can be a major distraction, but there is a "right way" to use them in class.
"Telephones and BlackBerrys and the like are conduits for information today, and one of the things we want to do is to be well-informed," he said. "And it's something that we should be looking at in our schools.
The issue came up in light of the Toronto District School Board rethinking its blanket ban, and "exploring ways to make [mobile devices] more acceptable."
Political opponents are already mocking McGuinty, and his government does have a really mixed track record on technology... but the comments here are actually quite reasonable. There's room between the "discipline theater" approach of a total ban and the teacher's nightmare scenario of a total free-for-all. A good acceptable use policy would attempt to reduce distractions while not precluding ways in which mobile technology can be helpful in the classroom.
I attended a strict private high school in Toronto from 2001-2005, and we had a blanket ban on electronic devices... but teachers were smart enough to know when it made sense to ignore the ban. I used my PDA to take notes and manage homework in every class, and another student in my year often used a tablet computer. The ban was eventually lifted after I graduated, acknowledging the fact that more and more students were using laptops and mobile devices in ways that helped them learn, while I'm sure they still have a no nonsense policy for students goofing off or distracting others. Rules are needed to minimize bad uses, but that shouldn't prevent people from exploring good uses.
So, good for McGuinty for recognizing that we're better off exploring applications for mobile technology in the classroom than simply trying to ban it.
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Posted on Techdirt - 26 July 2010 @ 5:10pm
Free (libre) and open source software is one of the best examples of an alternative to restrictive copyright, but even within these communities there can be heated debates about licensing. The WordPress community just witnessed such a debate between the founder of WordPress, Matt Mullenweg, and the developer of a popular premium WordPress theme, Chris Pearson, over whether or not themes are subject to the GPL (WordPress' license). The GPL applies to derivative works of a program—requiring that they, too, must be licensed freely—but Pearson maintained quite publicly that he wasn't subject to it and could use a proprietary license for his theme. This caused tension between him and Mullenweg, until last week, when Pearson gave in and switched to a split GPL license.
This kind of disagreement also highlights the fact that free software licenses (like the GPL) and the free culture licenses they've inspired (like some of those offered by Creative Commons) are ultimately hacks on a restrictive copyright system; they're merely tactics to reverse the negative effects of overly restrictive copyright, but not at all the ideal scenario. For example, we've seen concerns over how Creative Commons licenses act as a contractual layer on top of copyright, and non-commercial restrictions can also be a source of tension. Sometimes these disputes help a community to better develop its position on copyright and licensing, but other times, they're a sign that these licenses are still just a hack on a less than ideal system.
It'll be interesting to see how Thesis fares in the long-run with a split licensing approach compared to other premium themes that are 100% GPL. Regardless, it's nice to have a more or less happy ending where the community was able to resolve things without getting the courts involved.
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Posted on Techdirt - 8 December 2009 @ 10:58am
We were just talking about how SOCAN, the Canadian copyright collection society, was going after gymnastics clubs for kids using music in their practice routines. Now they're getting some well-deserved attention for other antics. Michael Geist explains how SOCAN tried to keep its submission to the government copyright consultation secret. The organization apparently requested that its submission not be posted online, even though that was part of the consultation process. The government made it available anyways, but only by email upon request. Of course, it's now available online elsewhere [PDF].
SOCAN's recommendations aren't surprising. They call for a making available right (article 22 of the submission), a broadening of the private copying levy (article 30), anti-circumvention provisions (55-56), notice-and-takedown (59), copyright term extension (60), and no further exceptions to copyright (34, 48). But rather than outright declaring war on consumers, they copy the language (poorly) of those seeking more effective copyright reform. For example, they claim that the "rights of users and creators" are already "balanced" because "the Copyright Board of Canada provides a fair mechanism to set the royalty" (45) -- someone had better tell the gymnastic clubs! Another great example: They want to expand the private copying
tax levy to digital audio players so that it's "technologically neutral." (11) No word on when they'll want it to apply to hard drives in general. SOCAN also repeats the ridiculous argument from the Toronto copyright townhall that "unwarranted" fair dealing provisions would mean asking creators to "work for nothing:"
Copyright amendments must not set up unwarranted exemptions, or otherwise limit the copyright royalties paid... If you deprive SOCAN's members of copyright royalties, you are basically asking over 35,000 Canadian individuals to take risks and work for nothing. That's not realistic, and it's not fair. (34-35)
It's just laughable to suggest that more flexible fair dealing (i.e., something like the American concept of fair use) would mean artists not getting paid. Do artists "work for nothing" in the U.S.? Though, it should be no surprise from an organization that claims that, if you use a Creative Commons license, you "won't get paid" and your work may become devalued
. To a collection society, getting paid
can only mean royalties, and the value of music
can only mean... well, royalties.
Best of all, they seem nervous about Industry Minister Tony Clement, who's given some indication
that he wants to craft forward thinking policies
. SOCAN recommends that the Standing Committee on Canadian Heritage have sole
responsibility for copyright reform (article 66). The Heritage committee is involved in the process, but as Geist points out, this recommendation betrays some discomfort with Clement and the Industry Committee, since the Copyright Act
clearly grants the Minister of Industry responsibility for copyright. So, first, we get a laundry list of maximalist demands using the language of "balanced" copyright reform, then a suggestion to ignore the Copyright Act
and exclude the ministry they're not comfortable with (you know, the one focusing on the economic concerns) from having any responsibility in reform? No wonder they wanted to keep the submission secret.
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Posted on Techdirt - 12 November 2009 @ 11:24am
The concept of zero took ages for societies to recognize, let alone understand. Mike has explained before how it's been a stumbling block in economics for some libertarian and "free market" types more recently. People who think about economics in terms of scarcity get upset when abundance pushes price down towards zero, as if the economic equation were broken. But if you flip the equation and think of it as a cost of zero, you realize that the trick is to use as much of those abundant goods as possible, adding value to complementary scarcities for which you can charge. Zero doesn't break economics, it just requires a different approach.
But artists and other creators hit a different stumbling block than libertarians (libertarian artists aside...). Zero is a problem because they feel like their art is worthless; they aren't hung up on scarcity, they're hung up on "devaluation." We've heard it from journalists. I hear it most often from fellow songwriters. The economic theory makes them feel as though their work is just viewed as some sort of cheap commodity. The thing is, value and price are not the same. Price is monetary value, but value is so much more than money. Price is what gets driven down to marginal cost, but value factors into the demand side of the equation. Expensive things aren't necessarily valuable, and valuable things aren't necessarily expensive. I value oxygen a lot, but it seems silly to pay for the air I breathe each minute, given the abundant supply.
More importantly, songwriters who get hung up on "devaluation" confuse recordings with music. They equate the two. A recording is not the song, it's just an instance of it, and a digital audio file is just an instance of the recording. Equating these reduces music to recordings to files. As important as recordings are, there's so much more to music. When you think of a song, do you think of the recording, or a memory you had connecting with the music? Do you think of the file and how much it cost, or the emotions, people and experiences that the music conjures up? The recordings are just a means through which we experience the music. Songwriters (of all people!) should know that the value in music is so much more than the price of a recording. It's not devaluing music to give it away for free, but it can increase its value by allowing more people to connect with it, to know, love and understand it -- to value it. It's through that experience that music is valued, not price!
Ironically, the underlying concern ends up being economic -- how will we make money? A price of zero for digital audio files doesn't mean that no one values the songwriting profession, or that no one is willing to spend money on music and keep songwriters in business. Sharing digital audio files makes the music more valuable and leads to more opportunities for monetization. When you give music away and connect with an audience, the opportunity for monetization is in the associated scarcities -- access, containers, community, merchandise, relationships, unique goods, the creation of new music, etc. -- by giving people a reason to buy. Getting hung up on "devaluation" is a distraction from the opportunity -- the necessity -- to experiment with new business models.
So, can we please stop complaining that free means devalued?
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Posted on Techdirt - 3 September 2009 @ 3:00pm
The Canadian Human Rights Tribunal has refused to enforce a controversial internet hate speech law, claiming that it's unconstitutional. The tribunal adjudicator, Athanasios Hadjis, expressed worry back in March about the "chilling effects" that Section 13 of the Canada Human Rights Act would have on the internet. In his ruling Wednesday, he decided that the restriction imposed by Section 13 "is not a reasonable limit" within the meaning of the Canadian Charter of Rights and Freedoms, and thus, unconstitutional. Since the tribunal isn't a real court, it can't actually strike down the law, so Hadjis just refused to impose any penalty.
Section 13 prohibits the repeated communication of "any matter that is likely to expose a person or persons to hatred or contempt" via telephone or -- since 2001 anti-terrorism measures -- the internet. The section is quite controversial; neither truth nor intent are a defense, and it's not part of the criminal code, so it tends to become a vehicle for cases that wouldn't stand a chance in a real court. Last fall, an independent review commissioned by the Canadian Human Rights Commission itself called for Section 13 to be repealed (an epic whitewash fail), and some politicians have begun to ask for the same. For serious issues, there are other hate speech provisions in the criminal code with real defenses, handled in real courts. Section 13 makes it too easy for someone to be "dragged through the process," as Hadjis puts it.
Not only is the section controversial, but its application to the web has been clumsy at best. Hadjis said, when applied to speech online, "suddenly, the chilling effect catches not only individuals who set up telephone messages... but just about everyone who posts anything on the internet." Hadjis notes that telephone hate messages tend to be overt, while opinions on the internet include many borderline cases. Part of the problem is that there are no safe harbors in Canadian law (or "safe harbours," as we Canadians would call them). Hadjis was concerned that website owners could be charged under Section 13 for user comments on message boards and blog posts. While this particular website owner doesn't seem like all that nice of a guy (to be charitable...), twisting the law to make a site owner responsible for user posts would have set a terrible precedent. Hadjis, thankfully, had the common sense to avoid that error. Hopefully Section 13 is repealed soon, and other tribunal adjudicators take note of Hadjis' ruling in the meantime.
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Posted on Techdirt - 1 September 2009 @ 7:30am
Last Thursday, I attended the Canadian Copyright Consultation Toronto Town Hall (video). Despite the stated intention of soliciting a "breadth of perspectives," the record industry dominated the event. Michael Geist described it as the "Toronto Music Industry Town Hall" and a local publication called it the "town hall that didn't invite the town". Tickets were limited and speakers chosen by lottery, yet half the speakers were from the entertainment industry -- collection societies, record labels, industry lawyers. Twice as many industry representatives spoke as artists or creators. There was the odd librarian, student or programmer (and I had a chance to speak), but otherwise the participants seemed so skewed towards the same perspective that one person greeted the audience, "hello, music industry," and some non-industry (though admittedly not very eloquent) speakers were heckled towards the end. When asked afterwards about the strong music industry presence, the Minister who ran the town hall joked, "I guess they had the night off." There are lots of questions about the sincerity and efficacy of the consultations (though, also some indication that the government might take the time to try and get things right), but what was most disappointing, albeit least surprising, was what the entertainment industry actually had to say.
Most industry speakers presented emotional pleas, with little in the way of serious suggestions. They focused on a "right to get paid" and "fair compensation" (without talk of providing a reason to buy), while Canada was portrayed as a "lawless society," rampant with property "theft" and hostile to "legitimate" business (despite evidence to the contrary). A writer stunningly declared that "[more flexible] fair dealing would be a disaster for creators," while SOCAN claimed that adding "unwarranted" fair dealing provisions would be asking creators "work for nothing" (even though flexible fair dealing would be a lot like fair use in the US -- hardly a disaster). The President of Warner Music Canada talked about disappearing jobs, and many industry employees painted a dire picture of colleagues and artists struggling to make ends meet (with little mention of any success stories). Yet, when the occasional concrete recommendation was made, it was to implement a notice-and-takedown system (ripe for abuse), extend the
"you must be a criminal" tax blank media levy to digital audio players (an idea that's been struck down twice), or enshrine an inducement doctrine into law -- extreme measures which have provided little solace to failing businesses elsewhere.
It wasn't argument. It was the language of moral panics.
The Canadian record industry was demanding to be lied to, to be told that more restrictive copyright laws will save their business. Though fewer and fewer people can convincingly tell the lie, they seemed perfectly capable of convincing each other that restrictive copyright legislation might somehow stop the market from changing (even with a decade of hindsight on the DMCA). It's tragic, because hard working people who love music and love working for artists are losing their jobs, but the industry continues to block the sort of innovations that could provide it with a way forward. A lawyer described the music industry as a "copyright industry," even though most artists and companies who are figuring out how to make money in the digital economy are successful despite copyright -- not because of it.
Artist voices were few (nevermind consumer voices), which is disappointing because many Canadian creator groups are adopting more forward thinking approaches, proposing solutions that don't involve criminalizing common consumer behavior. Now... most creators echoed the industry in supporting the levy and its expansion to digital audio players and even ISPs, and some asked for new royalties and more collective licensing, but that's much better than demanding stricter laws and enforcement mechanisms. The problem remains though, that although collective licensing may be a move in the right direction, short-term revenue from additional royalties and levies also increases barriers to innovation, making it harder for new sustainable long-term business models to emerge. Artists and creators need to find a way to earn money that's based on a solid economic ground, instead of depending on levies that can quickly become absurd. That's where the record industry should be able to help them out.
Artists and creators need to be able to experiment with new business models, but the copyright crutch gets in the way. They turn to levies and licensing because they can't imagine how else to make money, but successes have been outside of the copyright system. Canada needs innovative companies to help artists and creators find digital business models, not to chase fictive legislative solutions. If the Canadian record industry isn't willing to help creators with what's next, they need to clear out of the way.
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Posted on Techdirt - 6 August 2009 @ 4:25pm
The Associated Press' attempt to DRM the news is a bad idea for a variety of reasons, but its claims for the news registry's capabilities seem pretty misguided, once you examine the technology behind it (the "magic DRM beans"). Ed Felten dug into the details of the registry's microformat, hNews, which the AP announced a few weeks earlier, and here's where it gets really interesting: the hNews rights field is based on the Creative Commons Rights Expression Language (ccREL).
If the AP thinks it'll be able to build its "digital permissions framework" with Creative Commons technology, it's in for a letdown.
I'm not sure if I'm "allowed" to quote the press release, but this is how it describes the news registry:
The registry will employ a microformat... [that] will essentially encapsulate AP and member content in an informational "wrapper" that includes a digital permissions framework that lets publishers specify how their content is to be used online and which also supplies the critical information needed to track and monitor its usage.
The registry also will enable content owners and publishers to more effectively manage and control digital use of their content, by providing detailed metrics on content consumption, payment services and enforcement support. It will support a variety of payment models, including pay walls.
Microformats provide a syntax for expressing machine-readable licensing metadata in the HTML of a web page. ccREL was intentionally developed so that others could innovate freely on top of it, but the AP is trying to use it for something it's simply not designed to do -- "protect" and control. The Creative Commons has responded, explaining that ccREL is a tool for rights expression, not rights enforcement
. (That doesn't mean the AP isn't allowed to try this, but it's not going to work very well... it's like trying to lock a door with posters.) Felten described the AP's claims for the microformat as much ado about nothing, saying "the hNews spec bears little resemblance to AP's claims about it," and the Creative Commons clarification echoed the point:
Microformats and other web-based structured data, including ccREL, cannot track, monitor, or generally enforce anything. They're labels, i.e. Post-It notes attached to a document, not locked boxes blocking access to the content.
There's no "encapsulating" or "wrappers" -- it's just annotation.
This ecosystem of technology is about rights expression, not enforcement, and it's more about telling people what you can
do than what you can't. There are tools built on top of Creative Commons technology, like FairShare
, that "track and monitor" usage of content across the web, but these are search engine tools (similar to Google Alerts) rather than any sort of "built-in beacon." Other tools, like Tynt's Tracer (which Creative Commons blog uses
permission, not requesting
it. Participation is not enforced; anyone can remove or adjust metadata before reposting HTML, Tracer's attribution is just plain text that can be changed (as I did when quoting the blog here), and FairShare can't actually stop anyone from posting your content. These tools are based on a decentralized, permissive view of the web; they aren't designed to create centralized registries and exert control.
If you re-read the AP's description of the technology, it sounds a lot less scary, but a lot more hopeless. The tools are designed to convey further rights
to users beyond what copyright allows, not further restrictions
that limit user rights already granted
by copyright law (e.g. fair use). This is a great way of tagging news articles, but it's next to useless as a digital lock. They would be smart to employ this technology to make their content more usable and more valuable, but hoping it's going to help them lock it down will only lead to disappointment.
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Posted on Techdirt - 18 June 2009 @ 8:52pm
When talking about the success of musicians adopting business models around the economics we discuss here, people often complain that it "only works for big artists" or "only works for the little guys," so much so that someone dubbed the exceptionalism as "Masnick's Law." I admit that it was easy to feel this way when Trent Reznor launched the Nine Inch Nails iPhone app. How many less well known artists would benefit from (or be able to develop) their own mobile app? Well, a company called Gigdoggy recently launched a mobile "Fanteraction" platform that lets bands easily create mobile websites for their gigs. In a blog post chronicling a show in which the platform was used and promoted, the first artist to play didn't really push it, but the second artist, Greg (one of the creators), made a point of explaining it to people. Basically, by queueing up each song on the site, an artist is able to provide lyrics and additional information that the audience can access via a mobile device while enjoying the performance. It's web-based, so it's accessible from different platforms without the need for downloads (or the risk of getting banned by Apple). Greg was able to get some people interested and following along. One audience member even prompted him when he forgot the lyrics to a verse! The platform is in its early stages, but it'll be interesting to see how it develops and what people do with it. At the very least, it's a good illustration that you don't need to be playing in stadiums to find a use for this sort of thing.
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Posted on Techdirt - 17 June 2009 @ 1:01pm
When Joe Satriani sued Coldplay for copyright infringment last December, lots of people were quick to notice that a bunch of other songs shared the same melody, including some predating Satriani's tune. Last month, Yusuf Islam (formerly known as Cat Stevens) made headlines claiming that Coldplay had "stolen" the melody from him, not Satriani. Islam's 1973 song was one of many that people had noticed which sounded similar, but Islam was sure Coldplay got the melody from him ("if you listen to it, it's mine!") and said he'd decide whether or not to take legal action "depending on how well Satriani does." Now, Islam is talking about it again, this time saying he's not angry with Coldplay:
I stand by what I said. They did copy my song but I don't think they did it on purpose. I can understand why they got so upset because they probably don't even realise they have done it. It happens all the time. I have even copied myself without knowing I have done it. I'll write down what I think is a new melody and then listen back to it and realise it's the same as something I have already done. It's just one of those things and I don't want them to think I'm angry with them. I'd love to sit down and have a cup of tea with them and let them know it's ok.
That's a step up from Satriani's "dagger through my heart"
response, especially if he's suggesting the cup of tea instead of a lawsuit (though, TwentyFourBit
notes that the Flaming Lips would be annoyed if Coldplay gets a tea settlement while they got a royalty split
). But it's still odd that Islam is so convinced that the melody is his. What about all the other songs with the same melody
? Islam doesn't even entertain the possibility that no copying
took place, that it's just a natural melody
to sing over those chords. He's forgiving them for something they deny
having done, and, although upset initially, Chris Martin actually said the claims are inspiration to write better songs
. It's nice to see Islam recognize that this sort of thing "happens all the time" and that "it's ok" -- and hopefully that means he's given up on a lawsuit -- but he fails to admit even the possibility that Coldplay came up with the melody on their own. Regardless, this can't be helping Satriani's case.
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Posted on Techdirt - 16 June 2009 @ 2:37am
At the E3 Expo a few weeks ago, Electronic Arts showcased an upcoming game, Dante's Inferno, to awkward protests from a group of concerned Christians going under the name, "Salvationists Against Virtual and Eternal Damnation." They had signs like "Trade in your PlayStation for a PrayStation," "Cheat codes won't save your soul," and "Hell is not a game," as well as a 1996-esque website complete with animated GIFs and multi-colored all-caps text. The protest was covered by the LA Times, the San Jose Mercury News and many gaming blogs. That sort of controversy might make the game more appealing to some... except, EA admitted that the protest was entirely staged by the viral marketing firm that they hired (though, it didn't fool everyone).
As the popular gaming blog Joystiq puts it, there's got to be a better way to promote the game. A faux controversy might seem like a clever idea, until people realize it's just a publicity stunt. Plus, it doesn't seem very smart to alienate Christians when you could be selling them the game instead (as Thomas Peters from AmericanPapist.com writes, "getting to play Dante as he slashes his way through hell? It sure beats Tetris."). Electronic Arts recently landed in some hot water for another clever viral marketing idea, which involved shipping brass knuckles with the Godfather II press kit, despite mere possession being a first-degree misdemeanor in some states to which they were shipped. They get points for creativity, but they might want to think twice before acting on some of these ideas...
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Posted on Techdirt - 5 June 2009 @ 11:59am
Despite claiming to represent the interests of songwriters and composers, ASCAP has consistently provided bad advice on how they should respond to digital technology and the internet. For ASCAP and many other collection societies, anything that doesn't involve royalties seems automatically bad (despite all the success from artists who've been freeing up their content), and other questionable practices raise serious doubts over how royalty money is handled once collected. Now, ASCAP wants to increase the toll on video games and is encouraging video game music composers to reserve performance rights (via Michael Scott). Typically, game developers purchase rights (including performance rights) from music composers, but ASCAP's Director of Legal Affairs, Christine Pepe, argues that the practice no longer makes sense. She suggests adopting the model that was developed for film and television, where composers and songwriters often negotiate contractual provisions for performance royalties.
Not surprisingly, there are some major problems with the article.
First of all, Pepe cites Rock Band, Guitar Hero, Dance Dance Revolution and Stubbs the Zombie to highlight the prominence of music in video games nowadays. These are all cases of popular songs being used in games, rather than music being written for games... yet she's presumably addressing people who write music for video games. Early versions of Guitar Hero used covers to make licensing easier, so composers weren't even part of the negotiation. This licensing is about synchronization or mechanical rights -- not performance rights. Labels have complained that these games aren't paying enough for the music, but it's the games that increase the value (and sales) of the music, not the other way around. These games could simply choose other good music and still be popular. ASCAP clearly doesn't understand that, while music can add value to games, games add value to music. Pepe says that older video game music is "probably difficult to imagine... in a context other than the games themselves." She isn't trying very hard to use her imagination, as there are plenty of examples of older video game music having a life outside of the games. Would anyone care about the Mario theme if it weren't part of the game? The lesson from old video game music isn't that performance royalties used to be negligible. It's that success for a video game music composer isn't just about writing good music, but about having that music associated with successful games.
Second, Pepe's argument that there's a public performance of music in video games seems like a real stretch:
Now, because video games are being delivered by entities other than developers and on transmission-based platforms such as the Internet, there is no reason that composers of music for video games should sign away their rights. Take for instance, X-Box — it is now fully integrated with the Internet and allows users to stream games (instead of just purchase the physical product in the store). Internet-based services that now offer streaming of video games are causing the music contained in such games to be publicly performed. The providers of these video game services typically have or should have a license from ASCAP (and possibly other public performance right organizations). [emphasis mine]
What does "streaming" a video game even mean? A video game is interactive; it's not a one-way broadcast, but communication over a network. Is Pepe suggesting that there's a public performance simply because software communicates over the internet? Email happens on the internet. Is that a public performance? There's such a thing as private
communication over a network. Games like Gears of War
, for example, allow you to play in co-op mode with another player in the same room or online. I find it hard to believe that the location of player two would determine whether or not the music is being publicly performed. What about a multiplayer game on a local area network? Why would that be any different, in terms of a public performance of music, from a multi-player game with everyone in the same room? Simply playing a game over a network doesn't make it a performance, nor does that make it public.
But maybe Pepe isn't referring to having players in remote locations, but having games in remote locations. She uses the Xbox as an example, which seems odd because, as I understand it, the Xbox Live Arcade lets you download
games, but that's quite different from streaming. It's the video game equivalent of the iTunes Music Store, not an internet radio station. Digital distribution
doesn't mean public performance -- the game is still played locally, just off a hard drive instead of a plastic disk.
Okay, so maybe Pepe was trying to talk about a platform that actually hosts and runs games on a remote computer. Still, it's pretty hard to believe that just because software is run remotely it's a public performance of the music, when the act
of hearing the music would be indistinguishable if the software were run locally. Is it a "public" if I check my email using the Gmail web interface instead of Thunderbird? I have a music server running at home which lets me login and listen to my library from anywhere -- is using that a public performance? Do I need a license to listen to my own library because it's on a different hard drive
? How does playing music in a video game become a public performance simply because of the hard drive the game resides on or the CPU that runs the process?
Furthermore, let's pretend there's actually public performance taking place. Is it even in a composer's best interest to demand these royalties? (This is not
about a composers "right to get paid
;" composers are
getting paid -- upfront.) Making it harder
for people to hear your music is rarely a good idea. Like with theme music for WKRP in Cincinnati
or House in the UK
, game developers may just seek other music if the licensing requirements are too burdensome. Focusing on getting every penny for every use of the music ignores the value
of being included in a game, film or television show. The lesson from video game music of the past and present is that having your music included in a great game is extremely valuable. Not only are you getting paid
to be promoted, but the game developers are even doing the hard work
of getting fans to connect with the music! Rather than demanding compensation for every use, composers and songwriters should look at other ways
to take advantage of the opportunity
to make more money from the increased fan base. If ASCAP were really
representing their interests, it would be helping them do this instead of pretending that the internet and video games are like television and insisting on performance royalties which will only get in the way
of new business models
. Of course, don't expect ASCAP to promote anything that isn't about increasing royalties. If your only tool is a hammer, everything looks like a nail...
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Posted on Techdirt - 1 June 2009 @ 3:28pm
Howard Knopf, a well known Canadian copyright expert, recently took a look at some of the failed copyright levy proposals in Canada. The Canadian Private Copying Collective (CPCC) administers the
tax levy on blank CDs, which now accounts for almost 90% of the price. In 2002, similar proposals to extend the levy to DVDs and digital audio players were shot down. It's a good thing they were! Knopf notes that the $2.27 levy proposed in 2002 is now about 10 times the retail price of a blank DVD, and the $21/GB levy proposed for digital audio players would have left a 120 GB iPod (<$300 CAD) with a $2520 tax. You might think the CPCC would have decreased the levies over time, but the blank CD levy was just increased this past December (blank CDs cost more in Canada than blank DVDs). Even if the levies were lowered, it would be because they had already become unbearable. Imagine the bureaucracy and battles at the Copyright Board, and imagine the effect on Canadian consumers, tech companies in the meantime (what if the Blackberry was classified as a digital audio device?).
The point is that these quick solutions aren't solutions at all. Setting up "you're a criminal" taxes to collect money for companies that can't figure out how to adjust their business models is bound to block innovative new technologies, and you can't predict what technologies will drive new business models. As Knopf puts it, "all of this shows that today's quickie proposed legislative solutions and oft inflated tariff proposals to deal with supposedly serious crises arising from copyright and new technology are potentially tomorrows' absurdities or even nightmares."
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Posted on Techdirt - 18 May 2009 @ 2:57pm
In the April 2009 issue of Entertainment Law & Finance, three partners in the Intellectual Property Group at Kilpatrick Stockton LLP take a look at the role that "amateur musicologists" have played thus far in the copyright battle stemming from Satriani's lawsuit against Coldplay for copyright infringement back in December. I'll include relevant quotes from the article, since you need to register for a free account in order to read the PDF.
What makes this case unique is the lively debate that it has prompted, which will likely impact how this action and similar infringement cases will be prosecuted and defended going forward. Within days of the suit's initiation, the popular Web site YouTube was inundated with postings in which fans freely offered their opinions concerning the merits of Satriani's claims (or absence there-of). Some of these submissions were supported by surprisingly detailed analyses of the works.
We saw this in the comments
on Techdirt, as there was a lively debate and people were quick to mention a variety of other songs with the same melody. The article also mentions a Canadian guitar teacher who uploaded some videos
to YouTube with a detailed analysis.
The parties should take note of the prior art works that have surfaced as part of the public debate. Such works could prove to be helpful to Coldplay in defending against Satriani's claims, as they could reflect that Satriani himself may have "unconsciously copied" from an earlier work.
This was written before Cat Stevens claimed
that Coldplay was actually infringing his
song, the "Foreigner Suite," which was one of the similar sounding tunes people had noticed online. Anyone monitoring the online discussion about the copyright battle would have had this on their radar. Also, it was Cat Stevens' son who brought the song to his attention, my guess would be as a result of discussion about the similarities online.
Or [prior art] may simply reflect these oft-quoted words from the Second Circuit: "It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of palgiarism." Darrell v. Joe Morris Music Corp., 113 F.2d 80, 80 (2d Cir. 1940)
This quote reinforces the idea that there are only so many ways to combine chords
What makes the Internet commentary regarding the two songs particularly interesting is that much of it replicates the type of expert analysis that both sides will likely use if the case goes forward. In music copyright infringement cases, it is rare for parties to rely solely on bare assertions of copying or independent creation. Instead, they frequently engage "musicology" experts to undertake detailed analyses of every element of alleged similarity between the two works and conclude whether all or portions of one work were copied from the other. The parties and their experts in [this case] should consider the analyses of the "amateur musicologists" that have weighed in via the Internet and other media, if for no other reason than they may be informative of how a jury might ultimately view the case...
While Satriani v. Martin may not go to trial for a variety of reasons, it is clear that user-generated content sites like YouTube have the potential to alter the way music cases -- and other types of copyright case -- are developed. Because advances in technology allow the public to participate in real-time infringement debate, future parties would do well to monitor this "chatter" as it could uncover evidence and theories that may be helpful to the case of the copyright owner, the alleged infringer or both.
The online discussion is largely what has made this case so unique. There have been successful copyright infringement lawsuits over melodies in the past (most notably Bright Tunes v. Harrisongs
), but never has the public been able to participate so much in the debate. I think it's likely that Cat Stevens' son wouldn't have known of the similarity between the melodies if not for all of the other people who noticed and highlighted it online. If the case does go to trial, the internet commentary may influence the strategy on both sides and serve as a preview of the arguments. If it doesn't go to trial, the online discussion may influence any sort of negotiation as a means of assessing opinion on the merits of the infringement claim.
The melodies are undoubtedly similar, but the legal question is whether or not Coldplay copied from Satriani. It's not just Coldplay's word against Satriani's, but music fans and "amateur musicologists" are gathering evidence and providing theories which are having a noticeable impact on the proceedings.
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Posted on Techdirt - 15 May 2009 @ 5:02pm
Greg Gillis (aka Girl Talk) recently participated in a live chat as part of a Download Decade series run by the Globe and Mail. Gillis makes music entirely from samples, combining existing songs in creative ways to make something new. His last album, which was offered as a pay-what-you-want download, used over 300 samples. Even though he's been held up in Congress as an example of why traditional copyright laws might no longer make sense, it seems like a lawsuit is inevitable because Gillis doesn't license any of the samples he uses. Yet, there has been no legal action to date (knock on wood!). Gillis argues that his sampling is fair use because it's transformative, but that hasn't been tested in court.
In the chat, he responded to a question I raised about why he uses a noncommercial license for his music (as he makes commercial use of others' works), arguing that transformative fair use would still allow commercial use of his music and noting that his label suggested the noncommercial license as a "safe move." Gillis was also asked whether he's surprised that he still hasn't faced a lawsuit, even though his profile has been much higher in the past few years.
Kind of. I believe in what I'm doing. I do not think it should be illegal. But at the same time, if you look at the history of sample-based music, it is somewhat surprising. Biz Markie, 2 Live Crew, Danger Mouse, Negativland, etc. Those are the people who laid the groundwork. They all had issues.
He notes that he was under the radar with his first couple albums, but since 2006, it's been hard for him to ignore publications like the Rolling Stone and the New York Times talking about how he's going to get sued. Yet, no lawsuits. He says times are changing.
The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet. So much content comes from pre-existing media. We're used to it now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material. So the idea of a remix being a real artform is being validated in our culture every day.
Certainly, artists like Girl Talk, as well as others ranging from DJ Kutiman
to the creator of the "rap chop
" video, have been debunking the myths
about "original" content, showing people that remixing can be creative and original and that it contributes to culture. Still, there are plenty of people who believe otherwise
. Hopefully, Gillis continues to avoid legal troubles, though I don't think things have changed so much that this isn't still a huge risk. But, insofar as the remix is increasingly validated as an art form, perhaps a lawsuit would end up highlighting the limits
that copyright law places on artistic expression nowadays.
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Posted on Techdirt - 15 May 2009 @ 6:49am
It's widely known that internal staff are the biggest threat to IT security, but what about your computer repairman? After a hard drive was stolen from Real Living Action Realty in Pennsylvania, the company called Kevin Andrew Lutes, who had done repair work for them in the past, to fix the machine. He told them he could retrieve the files, but the owner later called the computer manufacturer and learned that it's impossible to do this... without the hard drive. Oh, and the police learned that Lutes' car -- computer repair sticker and all -- was spotted outside the office on the night of the break-in. When he returned a few days later with the stolen hard drive back inside the computer and tried to charge the company $2000 for the "repair," Lutes was arrested and charged with theft. You'd think that with potential access to the machine, he could have done something a little more subtle or sinister, but, lucky for the company, their repairman turned out to be a pretty dumb criminal. Someone should let him know that basing a business model on artificial scarcity is a bad idea...
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