Thank You for Being Our Fans, Please Keep Stealing Our Music

My little sister is only 7 years younger than me, but sometimes it feels like a whole generation.  (More on the generation gap.)  Never was this more apparent than when we stood together at the New Found Glory concert in San Francisco last month.

Music Coming of Age at the Turn of the Century

New Found Glory, or NFG for short, released their first full-length album in 1999, just as Napster was entering its short-lived heyday.  This band grew-up in the era of file sharing.  Not the band members, but the band itself.  Between 1999 and 2009, while Napster, Grokster and Aimster all came and went, while RIAA lawsuits against file sharers were filed and settled and won in court, NFG released six albums selling well over a million copies total and bringing in plenty of dollars.  (Three of the albums were certified Gold.)

San Francisco, the stage at the Regency Ballroom, the band has paused in between songs and the band members are thanking their fans for a decade of support.  “Thank you for downloading our songs!”  “We won’t tell you not to download music because we do it ourselves.”  “We don’t care if you’re paying for it or not, just that your listening to it.”  The thank you’s went on, thanking the fans for burning cds from their friends, for sharing with each other, for nearly every possible way you can think of getting music for free.  Then, as an afterthought, the bass player says to the lead singer, “and buying.”  “Oh yeah, and thank you to those who buy our albums, too.”

My sister was cheering and bouncing around with the rest of the madness that is young twenty-somethings at a rock concert.  I was standing in shock, my mouth gaping open, the wheels in my mind turning as a time line of the past 10 years floated past.

The Old Guard

Before this concert, I knew little about NFG.  In fact, all I did know was that they are one of my sister’s favorite bands.  How different this band and this concert were from the one my sister and I usually see together, a favorite of both of ours: Metallica.

Anyone familiar with copyright or the history of file sharing, regardless of their musical genre preferences, knows Metallica.  The legendary band that ruined the lives of college students everywhere by bringing a lawsuit against Napster.  Or at least, that’s the folklore.  Metallica brought the first suit against Napster.  But that suit actually settled.  The suit that brought Napster down was filed by A&M Records, A&M Records Inc. v. Napster, 239 F.3d 1004 (9th Cir. 2001).

Many people were angry with Metallica.  I was proud of them.  I was in college when Napster was in full swing.  I was in college when Napster was shut down.  I was probably the only one in my college who was glad when Metallica brought that first lawsuit.  In my mind, big, high profile superstars like Metallica were the only ones that stood a chance in the fight against Napster. 

As I mentioned in a previous post, my awareness of copyright was more acute than it ought to have been.  I was convinced that Napster had to be illegal and tried to convince my friends.  Either they didn’t believe me - “It can’t be illegal because it’s there.” – or they didn’t care, “Bands don’t see any of the money from an album sale anyway.”  In my mind, the lawsuit vindicated me; “I was right all along,” I thought.  But there was so much I didn’t understand, didn’t know, about the technology, about the music industry, about the sweeping changes already in progress.

The Shift Goes On

The changes of the music industry structure in the past twenty years are too detailed to go into here.  A&M was gone even before a decision came down in its lawsuit against Napster.  (History of the end of A&M.)  Suffice to say, file sharing couldn’t have been responsible for its death. 

Still, no one will deny the profound effect new technologies are having on the entertainment industries.  There are constant fights between guardians of the status quo and vanguards of the new business models. (Example.)  And bands are showing less and less support for the war-raging tactics previously promoted by the industry.

New Found Glory’s support of its music-stealing fans isn’t the only example of change.  Earlier this year, Bruce Springsteen asked to have his name removed from an ASCAP suit.  That suit had nothing to do with new technology or file sharing, but it shows the same reluctance to fight against those who enjoy the music.

The statements made by these artists exemplify a shift in the music world.  A shift that has already changed how the industry operates and how fans interact with their music.  A shift that is still rumbling.  I wonder what the bands just starting out will say to their fans ten years from now.

Cover Tunes, More Fun and Safer!

Cover songs can be really fun, especially when they’re done in such a different way than the original that you notice something new about the music.  The groups Vitamin String Quartet and Apocalyptica are famous for these types of covers, redoing heavy metal and pop music in orchestra styles.

Lately, this Ipper has discovered a different type of cover music in a similar vain.  A lone viola player covering currently popular hip hop tunes.  Oddly enough, that’s a combination that delights this particular listener.  However, this cover artist does things a little differently than the ones mentioned above.  Instead of just adapting the tunes for the viola and playing them, he plays along with the actual hip hop songs.  This is either more costly or more dangerous.

It is more costly if the artist has the permission and necessary licenses to release tracks where he plays along with the original songs.  It is more dangerous if he does not have permission.  This has to do with the different rights in a sound recording of a song as compared with the underlying composition itself.

The underlying composition, the only thing used by groups like Apocalyptica, has one copyright.  That’s it, one.  The copyright in the music itself.  That copyright might be shared by multiple writers, but that doesn’t matter.  To use the music, a person only needs to contact the song’s publisher and make an arrangement to use the work.

But to use the whole entire recording of a song requires a lot more work and a lot more money.  The recording involves a lot more people with rights.  It’s no longer just the publisher.  It’s also the performing artist, the producer, the record label and possibly other publishers depending on who has contributed to the final version of the song that gets released.  Basically, it’s a big, costly, mess.  And that’s if the user gets permission!

Of course, if the user doesn’t get permission, he doesn’t have to deal with that whole mess.  Instead, he is liable to all those people for infringing their different rights, copyrights, mechanical rights, performance rights.  If the user did a cover of only the musical composition itself, without permission, then he is only liable to the publisher.  Either way, the user is better off just covering the tune and not playing along with the original recording. 

(And one humble opinion here is that his music would actually be much better if it were just him and the viola, without the background noise of the original works.)

 

goldenrail would like to thank Justen Barks for his assistance with this post. a favorite of the viola tunes.

Photo credit: Blinged out Viola cc-by-sa goldenrail used Pegs of a viola cc-by-sa by Lemondedo, available at http://commons.wikimedia.org/wiki/File:Pegs_of_viola.JPG

Santa Cruz, Japan?

One thing the Ippers like to do on this blog is discuss strange IP sightings, things they’ve seen that look like they could include an intellectual property issue. This past weekend the Ippers had a splendid one!

Ipper dtrizzle and his friends take an annual camping trip to Big Basin Park, and for the past two years, goldenrail has been fortunate enough to go along. This weekend excursion always includes a Saturday afternoon spent at the historical Santa Cruz Boardwalk. In addition to the amusement park rides, sandy beach and cotton candy vendors, the Boardwalk features a large arcade. A large arcade with one of dtrizzle’s favorite games, Street Fighter II.

While dtrizzle was busy proceeding through the game, destroying every opponent in his path, goldenrail was standing idly near by, occasionally watching, occasionally peering at other nearby games. Next to Street Fighter II stood a game called drummania 10th Mix. Similar to the drum set portion of Rock Band, the screen rolled through lists of “popular” songs from which the player could choose. The reason I say “popular” in quotes is because the game billed the songs as such but none of them were familiar. It soon became apparent why.

A young boy came over and plopped a few tokens into the game. As the game began its warm-up cycle, a license flashed on the screen, “This game for sale and use only in Japan.” (goldenrail wasted a dollar in tokens attempting to get the notice to reappear for a picture, but it did not. She already knew she is terrible at fake music games and did not need an attempt to play drummania 10th Mix to reconfirm this for her.)

It’s possible the game was sold in Japan, but it was certainly being used in not-Japan. This explained not only why the songs were not familiar, but why so many of them were in a mix of English and Japanese, and why the screen often flashed Japanese warnings. [If anyone would care to translate the warning to the left, the Ippers would be most obliged.]

There are several reasons a game like this might have such a licensing restriction on it. This Ipper thinks it most likely that the licenses obtained by the game owner for the music included in the game are not international licenses. International licensing in music can be very complicated, often requiring dealing with collecting rights societies in each country where the music will be performed. It is also quite common for different parties to own the rights to the same song in different geographical areas.

Another possibility is similar geographical restrictions on patents that might be part of the game. Or, perhaps there is an agreement between manufacturers and distributers that certain versions of the game only go to certain regions, or that only one distributor may sell in a given area. Maybe the licensing restriction has to do with delayed release dates, with the games first being made available in Japan and other countries needing to wait (similar to Hollywood movies in the US verses elsewhere.) These reasons are all speculation of course; the real reason for the licenses restriction is not clear from the license notice itself. One thing, however, is clear: that game does not belong in Santa Cruz, California.

Purchase your own drummania 10th Mix here.

Deciding the Fate of Music

A follow-up from the pre-Easter Tenenbaum fair use defense post - a further look at why a court should not address the issue (again) of whether or not file sharing is fair use.  As mentioned in the previous post, legal free music is coming.  A court decision ruling file sharing as fair use would only hasten the inevitable.  This hurrying is unnecessary and would be detrimental to the progress already being made.

Let the People Do It

There are companies in the industry currently working on how to make the music industry work best for everyone, including the fans and artists.   Let the industry play it out a little while longer and figure out where its going.  Forcing the industry's hand never proves good; it freaks out and reacts without taking time to figure out if its actions make sense.   

Allowing the industry players, the musicians, the experts and the fans (yes, they have a say now, too - the musicians are listening) to hammer out a solution that works for all will produce a much better result than a court handing down a decision from on high.  Allowing those who have a stake in the matter to develop a solution fosters more cooperation.  A value our democratic society is supposed to value.  Cooperation in an industry that desperately needs to rebuild its relationship with the rest of us.  It also gives those who participate a deeper connection to the outcome; they find value in the product of their creation and are more likely to support it.

The Tenenbaum Fair Use Defense: Why?

Professor Nesson's plan to use a fair use defense in the Tenenbaum/RIAA trial is causing quite a stir.  The Harvard Law professor heading up Joel Tenenbaum's defense team seems firmly rooted in his position, believing that file sharing is a fair use.  "From my side the path is straight," he said in a serious of tweets discussing ruminating on his point.

Other copyright experts have weighed in on this approach, in part because Nesson has either asked them for their opinions or has asked them to be expert witnesses at the trial.  They do not agree that file sharing is fair use.  Expert squabbles aside, this Ipper has one question: Why use this defense? 

The original, or at least most previously focused on position was that copyright statutory damages are unconstitutional because of their extremely high ratio between value of actual harm and value of punitive damages.  What do you gain by pursuing the fair use defense that you don't get by pursuing the statutory damages position?

File Sharing Becomes Legal - and?...

Legal file sharing is the most obvious outcome of a successful free use defense, but it really doesn't do us any good.  The music industry is moving towards accepting free file sharing (much to my chagrin).  There's the recent deal in China that creates a free legal way for consumers to download music.  There's also the Canadian proposal to add an opt-out-able music license into internet payments.  And many more proposals and trial runs of different ideas around the world.  Yes, the industry is still pushing things like ISP 3-strikes laws, but it's just buying time.  The industry has a plan.

So, free legal music is coming.  If the fair use defense in the Tenenbaum case succeeds, we just get the same outcome (in a less valuable way - more later) a bit early.  Maybe.  With the slow pace of trials, the court might not even have a chance rule on the issue until the matter is completely moot.

The Statutory Damages Claim - Real Benefits

The Copyright Act's statutory damages apply to all infringement, not just file sharing.  So, if the level of statutory damages is found to be unconstitutional, the change in the law affects anyone accused of copyright infringement.  This includes people who post YouTube videos, musicians who use sampling, and Lessig's poster-child: remix artists.

If a court finds the copyright infringement statutory damages to be unconstitutional, we get to make the law fair again.  If a court decides file sharing is fair use, all we get is an even murkier definition of fair use.

Labels aren't as Clueless as We Think

The Leadership Music Digital Summit is winding up today at Belmont University in Nashville.  This Ipper had the good fortune to attend many of the panel sessions.  Obviously, two days of digital music discussions produces lots of bloggable material, but today we'll discuss only one thing, the most encouraging part of Tuesday: the Keynote address by Rio Caraeff of Universal Music Group.

When we hear about record labels, especially the big four, we hear the same things over and over again: they're clueless, they can't keep up with the technology changes, they don't understand their audiences, they're evil, etc.  Today, Mr. Caraeff showed us just how wrong those statements are.  (Well, except the last one, jury's still out on that.) 

Caraeff is the head of eLabs at Universal, a team that focus on all aspects of digital development and music: cell phones, downloads, streams, videos, you name it.  They are not focused on content, but on the context.  Music used to be an experience, now it is data.  To Caraeff and Universal, this is a problem.  Where's the value if the product you buy is exactly the same as the product you can download for free?

So, they're working, and they're working hard, to bring back the experiential aspects of music.  The traditional album, with all its neat cover packaging and fancy inserts, is dead.  But, Caraeff explained, Universal's eLabs is working on creating a new type of packaging for digital downloads (and they aren't talking DRM).  Packaging that connects the listener to the music like the old album covers used to do.  And, one of the best parts, they are focused on using open technology, no proprietary software.

Caraeff didn't go into exactly what this new packaging will look like.  They might not even know yet.   But, that doesn't matter.  The encouraging part here is that Universal recognizes the changes in the industry; they're working on solutions; they are innovating, and innovating with a focus on the fans.  They know that access is now more important to consumers than possession.  (Caraeff expects music to be all cloud-source in about 5 years, rather than mp3 downloads.) 

Universal is not sitting back and relying on RIAA lawsuits, or simply trying to hold out until all their artists are signed under 360-deals.  As Caraeff put it, both the artist and the fans are the customers.  Universal's eLabs is focused on creating a new model that benefits all their customers.  And the simple fact that they're trying, that puts a smile on my face.

Auctioning iPods with Music

Announced earlier this week, Music Rising is raising money to help rebuild New Orleans' music scene by auctioning off celebrity iPods.  These iPods do not just come with autographs, they also come with music.  You can imagine the kinds of questions this news raised in the Ippers' minds.

How is this possible?  Did the auction site or the non-profit obtain distribution licenses for the music contained on the auction iPods?  Do the tracks fall under the first sale doctrine (not normally applicable to digital files) because of iTunes security features that limit how many places a song can be placed?  Does the existence of the music on the iPods not matter at all because the iPod will be cleared when the auction winner sets the iPod to work with their computer?  Maybe the record labels 'donated' the songs to be placed on the iPods.  The playlists are rather small.

Looking at the iPod auction FAQs and Rules didn't answer the question.  The terms of use didn't really help either.  Do any of our readers have an idea of how the organization is allowed to auction the music with the iPods?

Is the Music Industry Shooting Itself in the Foot (again)?

Big wigs and lobbyists in the music industry have pushing hard to get performance royalties from terrestrial radio stations.  On February 4th, Senator Patrick Leahy, the same Patrick Leahy that introduced the PRO-IP Act last Congress, introduced "a bill to provide fair compensation to artists for use of their sound recordings." (S.379)  The bill would adjust the current legislation that provides performance royalties for digital transmission of music to include all transmissions.  It also includes provisions for special blanket licenses at set prices for smaller radio stations and public broadcast stations. 

In a world where radio is already struggling, is extorting money from radio in an attempt to save the record companies really a great idea?  But suppose this bill does pass and performance royalties are implemented for terrestrial radio, what would happen?  Here is one vision of the future.  Imagine....

Radio stations stop playing music for which they would have to pay royalties.  There is a lot of good music out there now with creative commons licenses that would allow air play without fees.  There's probably plenty more independent musicians who would gladly allow radios to play their music without paying performance royalties.  There is enough music out there, in every genre, that radios could find plenty to play without including the big record labels.  (UPDATE:  just found this out, there is already an internet radio station pretty much doing this, uses only Creative Commons licensed music.)

Radio could refocus on local musicians and stimulate new touring.  And as listeners begin to become familiar with music using creative commons type licenses, they will find out how wonderfully simple these licenses make so many things.  Can I put up a YouTube video using this song?  The license answers.  Can I play this song at my wedding?  The license answers.  And as more creators see other creators using these types of licenses, the use will spread.  Access to culture will be free-ed up in the sense that the rules will begin to be understandable by the masses.

Sure, it would be a bit strange at first, the music would sound a little different (and the oldies stations might have some additional problems), but people would start to get used to the new stuff, the same way they get used and then start to love new songs on the radio now.  The constant playing of the formerly underground music would turn it into the mainstream.  These artists would then have a market for their music.  The technology is there (and many of them currently use it) to sell their music themselves.  The record labels aren't needed in the same way.

Since the radios will be playing the music, the artists won't need the huge publicity teams for which record labels are still relevant.  They will be completely, officially, obsolete.  (Except for hoarding the old catalogues they still manage.) 

... It's nice to dream.

Sita Sings the Blues: Copyright Jail is No Fun

An unscheduled post: This isn't really a breaking news story, it's more of an ongoing plight, but Ip's What's Up would like to help draw attention to Nina Paley's struggle to free her award winning feature length film, Sita Sings the Blues from Copyright Jail.

The (Very Brief) Low-Down

Sita Sings the Blues is a critically acclaimed animated film that brings together a classic Indian epic, Ramayana, Nina's own life and the 1920's jazz music of Annette Hanshaw.  (Movie Trailer, Awards List, Roger Ebert's Review, Film Clip.)

That last part is the rub.  Because the underlying compositions of the music used in the film is still under copyright protection, the film can not be legally distributed.

So what's the big deal?  Just pay the copyright owners and get on with it, right?  Well, it turns out that "just paying the copyright owners" is cost prohibitive.  (Nina's step-agreement with the copyright owners and her plans to get film distributed here.)  Nina has taken on a lot of monetary debt, not to mention the time spent, trying to get her art out there for people to appreciate.  She needs help.

What Can I Do?

Regular Ol' Joes

 Donate: QuestionCopyright.org has set up a donation system to help free Sita.  Donations are tax deductible.  Spread the Word: help tell others about the Sita saga, put it in your status message, tweet it, blog about it, tell your friends and neighbors.

Attorneys

Nina is looking for some good pro bono legal help.  You won't be alone.  She's working to assemble a team, and there's at least one volunteer to assist with legal research.  It appears most of the legal help she's found is more experienced in software matters than entertainment law issues.  From her blog:

Is there a lawyer in the house?
I mean a good, progressive, Free-Culture-oriented lawyer. Right now we havequestioncopyright.org’s legal counsel, whose experience lies in Free Software. The California-based Electronic Frontier Foundation hasn’t yet agreed to help directly (maybe they’ll change their minds!) but is looking for additional pro bono legal help for me here in New York. The coolest legal work seems to be in Software; I haven’t yet found anyone in Entertainment Law who really gets it. But if you’re out there, please get in touch! Let’s make a Sita Legal Defense team.

Where Can I See Sita Sings the Blues?

The film is being included in a number of film festivals around the world.  You can check for a location near you at the screening schedule.

 

 

 

 

More Detailed Information About Sita

The Step Deal

The original quote given to Nina for licenses for the 11 songs at issue in the movie was $220,000.  Nina provides a spreadsheet of the quotes here.  By the end of last month, Nina was able to get this reduced to a step-deal that starts at $50,000 (which she's taking out a loan to pay) and goes up from there depending on how successful the film is.  If the film were to be shown in theaters and made a million dollars at the box office, Nina would get between $30,000 and $80,000 (by her estimate, per her blog) and for every million at the box office she would have to pay another $38,500 for the licenses.  That means that if the film makes a million dollars at the box office, the publishing companies that own the rights to the compositions sung by Annette and used by Nina make more collectively than Nina makes.  Annette's heirs get nothing anyway; the sound recordings themselves are in the public domain (see below).

The Issue with the Music

As Nina nicely explains at comment #8 and comment #13 here, the actual recordings used in the film are in the public domain.  It's the underlying compositions that are still protected.  In US copyright law, sound recordings and musical works are protected separately and have different rights attached to them.  The recordings sung by Annette Hanshaw that Nina used in the film were protected as sound recordings.  They have since fallen into the public domain.  The underlying compositions, the words and written music for the songs, are protected as musical works and are still under copyright protection thanks to the Sony Bono Copyright Term Extension Act.  This act retroactively extended the copyright life of works made under the 1909 Copyright Act and still under protection in 1998 to a total of 95 years of protection, counted from the date of publication.

Several different entities own the rights to the compositions, some of them sharing the rights to a single composition with others.

The rights owners include:

• Bug Music
• EMI
• Irving Music (acquired by Universal Music Group)
• Pencil Mark Music
• Richmond Organization (TRO)
• Songwriter's Guild of America
• Sony-ATV Music Publishing
• Warner-Chappell Music

Nina says in her blog that there are 11 Hanshaw recordings used in the film.  The spreadsheet of offers from the rights holders only lists ten.  Here are those ten:

1. Am I Blue?  (1929, Harry Akst(d.1963) and Grant Clarke (d. 1931))
2. Daddy Won't You Please Come Home?
3. Here We Are
4. I've Got a Feeling I'm Falling (1929, Fats Waller (d.1943), Harry Link (d.1956), Billy Rose (d.1966))
5. Lover Come Back to Me (1928, Sigmund Romberg (d.1951), Oscar Hamerstein II (d.1960))
6. Moanin' Low
7. Mean to Me (1929, Fred E. Ahlert (d.1953), Roy Turk (1934))
8. What I Wouldn't Do for That Man
9. If You Want the Rainbow (You Must Have the Rain)
10. Who's That Knockin' At My Door

I couldn't find information on the rest of the songs.  If anyone has any suggestions or information, let me know.

Some Other Articles on the Sita Saga

Copyright Owners Contributing to the Destruction of Their Own Property at Copyfight

Sita Sings the Copyright Blues at Copyright & Campaigns

Sita Sings the Blues at Soup Greens

Owning Music at No Notes

Distribution Blues at Newsvine.mobi

Diversions - Sita Sings the Blues at The Obenson Report

The Best of 2008 at Duck Blog

Part III: Developing Decent Digital Distribution Solutions

Last month, we did a follow-up to a November post discussing a class at Vanderbilt University in which class participants were working in groups to develop solutions for dealing with illegal digital downloads.  In the follow-up, we looked at Group One's solution and most of Group Two's solution.  (Nigerian internet prevented any further viewing of the class presentations.)  We now bring you the finale, Group Three's solution.

This ipper will admit that she tends to be a little cynical when it comes to dealing with music downloads and trying to "fix" the current situation.  That being said, if this summary seems too critical, our readers may wish to check out Group Three's solution for themselves.  (You can watch the entire class' presentations here.)

Group 3

Group Three presented a program that included many things already tried or currently being tried.  Their program seemed like something that would garner a lot of support from the RIAA, very little support from the Lessig-wing, and some criticism from the EFF.

Before getting into the detail of their solution, it must first be noted that the group did say they want to encourage and free up music for fair use.  They are not trying to fight small infringements that should be protected by fair use, but rather address the large-scale infringement that hurts the music industry.  The group also pointed out, in passing, that with the increased ease of reaching consumers presented by digital distribution, musicians may not need record labels in the future.  (Isn't that exactly what the record labels are afraid of?) 

The group then went on to explain that their way of address this large scale infringement is top-down legislation with tighter restrictions on music.  As they explained it, "it's the government's responsibility to protect its creative population."  Their suggestions: crippling peer-to-peer (P2P) networks, stronger DRM protection,  and increased copyright education in schools.

Restructuring Peer-to-Peer Networks

P2P networks would be reverted back to a former version of themselves, available only through certain organizations such as universities or employers.  All users would be required to register with the network and the network would be responsible for how the users used the networks.  Networks would be notified if users conducted illegal file sharing on the network.  The networks would then be required to block the users, sort of like the developing program between the RIAA and ISP providers that would slow down or shut off the internet of those using it to infringe copyright.  As the group put it, consumers would be "pressured into using P2P networks only for legal activity."

One stakeholder in attendance at the class' presentation suggested the book, The Spider and the Starfish by Ori Brafman and Rod A. Beckstrom.  He explained to the group that this book does a great job of outlining why P2P can not be controlled in the way suggested by the group.  The group suggested that the reason P2P cannot be controlled is because the laws do not support such control.  To fix the problem, the group said, "regulate it more," give the government more "freedom" (the group's word) to track P2P and go after people who are using P2P for illegal purposes.  Privacy issues anyone?  How long before the EFF is all over this proposed legislation?

Adjusting DRM

The group did not just advocate strengthening DRM; they also advocated reducing it.  Sound like a paradox?  What they suggested was a tiered structure in which consumers can choose a price level for their downloads.  The higher the price, the less DRM protections, the lower the price, the more DRM protections.  It's sort of a different take on pay-per-use.  The group explained that they want the consumers to be able to use the media in the way it was meant to be used, listened to, watched, etc, but not change it or manipulate it.  More of what Lessig would call Read/Only art and less Read/Write.  (Some sure-fire opponents to this manner of using art here and here.)

The group explained that the DRM would not stop consumers from doing anything that would constitute fair use, and used putting an i-tunes song on a cd for a friend as an example.  (We'll skip the issue some groups might have with whether or not that's fair use.)  How will the computer/software/DRM know that the user is making a cd for a friend and not a cd to sell?  How will it know that the way in which that consumer is using the track would constitute a parody or a de minimums use?  In short, how can the DRM be programmed to decide if the consumer is using the file in a way that would constitute fair use?

Increased Education

The last section of the group's program was increased copyright education in schools and in the community.

In Schools

This suggestion was very similar to one made by Group One in their presentation.  Start teaching children at a young age, in elementary school, about the evils of illegal downloading and the piracy aspects of copyright law.  As the children get older, bring in more details of the law and increase the students' understanding of copyright.  Group Three got a little more specific and suggested including actual copyright cases in this instruction so that students can see what uses are and are not allowed.

The Community - Rock the Schools

The community part of the education would come in a series of concerts the group titled "Rock the Schools."  They described this concert series as similar to Live Aid, raising both awareness of the evils of copyright infringement and money for copyright education in schools.  The concert would include popular musicians, industry stakeholders like the RIAA, politicians and other important public figures.  (Creatively demonstrated in the group's power point presentation by some neat photo remixes.)  The concert series would raise money through ticket sales, donations, merchandise, at home pledges and sale of the concert on itunes.   How much could actually be raised in donations is questionable. 

Wrap-up

Overall, there's some doubt as to the effectiveness of this program.  There's already a lot of backlash towards restrictive DRMs, increased regulation brings in a lot of other legal issues.  Education is being attempted and may show results in the future as norms towards downloading change.  As for Rock the Schools, it's very likely that more people consider funding AIDS research or medication for poverty-stricken children as a more worthy cause than protecting millionaires from copyright infringement.  (But as it says above: cynical author here.)

Following the French?

Earlier this month, the American Bar Association Journal reported in a little article that the RIAA is going to stop randomly suing people for illegal music downloading.  Seems the RIAA finally realized that tactic was not producing the desired results and getting them extra problems.  This is good news.  However, the new approach is not without its own problems.

"The RIAA now plans a more practical enforcement effort concerning illegal downloads," the article explains.  And just what is this more practical enforcement?

"With the help of Internet service providers, those who repeatedly download music illegally and ignore ISP warnings are expected to have their Internet service first slowed down and then stopped entirely..."

That's practical?!  In a country that historically places such a high value on freedom of speech, independence and privacy, in a society that revolves around technology, this "practical" solution is opening several very large cans of worms.

As it turns out, the solution may not be quite as draconian as the quote makes it sound.  According to the Wall Street Journal, the new plan is actually a series of agreements between the RIAA and different ISP providers.  The deal is that the RIAA will stop suing consumers and the ISP providers will start contacting customers who appear to be illegally uploading copyright protected material.  If the customers ignore the warnings, the ISP providers can slow down and eventually cut-off the internet service.

The IPKat reported some months ago on a similar plan in France.  In late October, the French Senate approved a law that would cut off the internet service of people who illegally download copyright protected material.  Under the French model, internet access revocation is the final out in a three-strikes law.  Strike one: warning email.  Strike two: warning snail mail letter.  Strike three: the dark ages for an entire year.

In general, people seem to like the idea of receiving warnings and a chance to stop infringing behavior better than lawsuits.  However, many have also expressed some concerns.  French Senator Retailleau decried cutting off internet as discriminatory.  He described internet access as an "essential commodity" and its removal as "traumatic."  Readers of IPKat also commented on the variety of privacy issues raised by this method of fighting infringement.

Groups like the Electronic Frontier Foundation and Public Knowledge express similar concerns about the American plan and raise some others.  The president of Public Knowledge is worried about the due process of the system, stating, "we want to make certain that customers are not cut off from their Internet service or have their service altered solely on the basis of a claim by a copyright holder that file sharing is taking place."  The EFF points out that the punishment here seems to greatly outweigh the crime.  Guess Gilbert and Sullivan wouldn't approve.

Some proponents of the new arrangements believe that the warnings given to infringers by their internet providers will be enough to prevent the customers from continuing their illegal behavior.  If this is true, the system is fine because the ISP providers will never need to reach the controversial step of shutting off someone's internet service completely.  But what happens when someone decides to call their bluff?

 

 

Other related links:

Will France Introduce Digital Guillotine in Europe
French Internet Law Clashes with EU Position
RIAA Shuts Down its Lawsuit Machine
Three Strikes, Three Countries: France, Japan and Sweden
RIAA to Stop Suing Music Fans, Cut Them Off Instead
RIAA Confirms It Will Take Piracy Fight to ISPs

Follow-Up to: Developing Decent Digital Distribution Solutions

In our previous post, Developing Decent Digital Distribution Solutions, Ip's What's Up reported about a Vanderbilt University class called "Stealing in Music City" where the students had to develop a new digital distribution system for the music industry.  The three student groups presented their solutions last week Tuesday, December 2nd.  The video of their presentations is now available on YouTube and VUCast.

The video itself is almost an hour long, and Ip's What's Up doubts many of its readers have time to watch the whole thing.  We wanted to summarize the groups' projects for you.  Unfortunately, the Nigerian internet didn't like that plan.  So, we offer you a summary of the first group and most of the second group.  (Our apologies to Group 3.  We are sure you put a lot of effort into your project as well and will report on it as soon as we're able.)

Groups one and two each consisted of three, visibly nervous, first-year students.  It is apparent from their presentations that they learned a lot about copyright and the music industry during their semester and that they put a lot of work into developing their solutions.  We hope their professors are proud of them and will continue the seminar in the future.

Group 1

The first group pulled ideas to improve the music industry from a variety of sources.  They talked about revising the copyright law to make it easier for artists, consumers and labels to understand, particularly the areas relating to ownership, fair use and the public domain.  That's probably good for everyone, except the attorneys.

On the production end, the group adopted the licensing model mentioned by David Byrne in a Wired.com article.  Through the group's version of this model, artists could only license their recordings to a label for a limited time, rather than assigning the entire copyright to the label.  (The label would not be allowed to own any masters.)  The group adopted this plan because they believe labels play an important role in promoting artists but also think artists should have more say in their careers.

On the distribution side, the group incorporated two ideas supported by Professor Michael Bressman.  (Professor Bressman teaches the IP Clinic at Vanderbilt law and visited the undergraduate class as a guest speaker.)  The group suggested an increase in the number of legal online music distribution sites and that these sites should use monthly fees rather than per song payment arrangements.  The group seemed unaware that there are more music download sites than iTunes, but perhaps that was just their example.  [Some music sites: iTunes (the standard), eMusic (which is monthly subscribtions), amazon.com (drm free), napster (the newer, legal version), payplay.fm, puretracks, there are many more.  Note: Some of these will not work outside the US.]

The group also looked at changing social norms, turning illegal downloading into something un-cool instead of something normal.  The ideas here were a bit reminiscent of anti-drug and anti-gang programs (Downloading Abuse Resistance Education?), and made this Ipper feel rather old.  Their suggestion: include internet safety and copyright in the existing elementary school computer classes.  These classes already teach students how to type and use the internet; they should teach how to do it safely and legally.

In addition to incorporating music downloading etiquette into computer classes, the government should also use things like pamphlets and public service announcements to educate people about piracy.  They suggested these tools be a bit less extreme and a bit more honest than the RIAA's versions.

Overall, it seemed the group attempted to address several different aspects of the music downloading issue: the relationships between people in the industry, the availability of legal downloadable music for consumers, and the social norms that still seem to lean towards acceptability for illegal downloading.

Group 2

Group 2 took a different approach and developed a unique system for digital distribution.  They described it as using the technology of file sharing but ensuring artists and labels get paid.  Their system consists of a government run network that sounds sort of like a Facebook for record labels and publishing companies.

Record labels, publishing companies and independent artists with more than twelve songs can sign-up to be part of the network.  They will get their own page that they can design however they'd like.  They can use the page to promote different artists, activities and events, and to offer downloads of their catalogues.  (The reason for the minimum of twelve songs has to do with balancing the costs and benefits of the system for independent artists.)

The consumers choose from one of various subscription levels.  Each subscription allows them to share a certain number of files per month, with the platinum level giving them unlimited access.  The prices for these subscriptions are intended to be fairly low in order to shift the economic supply curve: lower cost = more downloads.  It's a little confusing if the "sharing" involves offering tracks already in consumers libraries for upload/download by another, or if it really just means downloading from one of the label/publisher pages.  (This may be clarified later in the group's presentation, if anybody is able to watch the whole thing and can add some clarity to this point, please leave a comment.)

The government is in charge of setting up this network and managing it, as well as acting as a sort of collecting society for all transactions on the network.  The group chose the government to run the network in order to eliminate the cost created by a middle-man like iTunes and because they felt the government would bring a certain neutrality, less focused on profit and more focused on boosting the economy and supporting the industry.

Although similar in some ways to existing on-line stores, their system seems to present some unique ideas.  If it does indeed involve file sharing with a collecting society-type entity tracking, it offers some definite benefits over existing on-line music options, like locating those hard to find remixes.  There would be a lot of details to work out before such a system would be viable (such as ensuring that tracks are properly identified), but it's certainly an interesting idea to ponder.

 

 

{related to digital distribution...]

Alphabet War

About a month ago, Ip's What's Up posted an entry about the status of collecting societies in Nigeria.  The main issue is the ongoing feud between the two former collecting societies, MCSN and PMRS, and the Nigerian Copyright Commission (NCC).  Well, it looks like the beef is getting bigger.

The Guardian newspaper published a story this past Friday about allegations flying back and forth between MCSN and the NCC.  The news article is a bit cryptic, especially for those of us who are not fluent in Nigerian English, but it appears that the NCC and MCSN are on opposing sides in two different matters.

MCSN v. NCC

First, there is the old matter of MCSN suing the NCC (as its counterpart, PMRS is doing) over the Collecting Society Regulations and the section of the Copyright Act that authorizes these regulations.  (For those who are interested, the MCSN suit is: Musical Copyright Society of Nigeria LTD/GTE v. Nigerian Copyright Commission, SUIT NO. FHC/L/CS/478/2008, but this Ipper has no idea where you can find any reporting on the case.)  Basically, MCSN claims that the relevant sections of the Nigerian Copyright Act violate MCSN's fundamental human rights as protected by Sections 40 and 44 of the 1999 Nigerian Constitution, as well as violating Articles 10 and 14 of the African Charter on Human and Peoples' Rights.

NCC v. MCSN

The Guardian article discusses a second conflict between the NCC and MCSN.  According to the article, the NCC is currently investigating MCSN based on a complaint from the International Federation of Phonographic Industries.  The complaint alleges that MCSN is pirating films, both reproducing them and publishing them.  (Publishing, under the Nigerian Copyright Act, is making a work available to the public.)

MCSN claims that this complaint never existed and was only fabricated by the NCC in order to make it appear that the NCC's raids on the MCSN offices were justified.  NCC says it's legitimate.  MCSN says that NCC is harassing MCSN and its affiliates by questioning collecting societies in the UK (Performing Rights Society and Mechanical Copyright Protection Society) and raiding MCSN offices in Nigeria.  NCC says it had to question the UK societies because MCSN claimed to have received authorization for their alleged pirating behavior from those societies.

Clear as Mud

This Ipper is quite confused by all of this, and doesn't really know what to believe.  Both parties involved in this battle have been known to spin things a little bit away from the truth.  What is certain is that MCSN does not have authorization to act as a collecting society, and that, in general, the NCC has authority to conduct investigations in matters of alleged piracy.  The Director General has stated that MCSN cannot receive authorization to become a collecting society until it meets transparency requirements.  MCSN seems to think there it is actually some sort of NCC vendetta that is preventing MCSN from receiving authorization.  Both parties claim to be acting in the best interests of copyright and the artists.  Maybe some readers can shed some light on the situation.

One thing is clear, whatever is going on here, it's not doing anybody any good, especially not the artists.

Developing Decent Digital Distribution Solutions

A couple of press releases recently caught the Ippers' attention.  Two groups are each working to ensure that fans get their digital music and artists get their money, but they're working from different angles.

Getting the Infringers to Fight Infringement

Freshman at Vanderbilt University in Nashville, TN, politely called "first-year students," are developing a new distribution system for the music industry.  The project is part of a seminar called "Stealing in Music City."  In addition to their own perspective as the ones trying to get the music, the students will have the input of various industry stakeholders and experts, including Alice Randall and this Ipper's own copyright professor, Steven Hetcher.  Hopefully the students have some very interesting and viable ideas.  The class will present its three solutions in class next week Tuesday.  Ip's What's Up will let you know when we hear about any of them.  (Full press release.)

Europe Re-Evaluates Collective Management

This week, WIPO is also looking at the affect of the digital age on music distribution.  The Conference to Examine Future Development of Collective Management of Copyright and Related Rights in Europe meets this week Monday and Tuesday in Brussels.  The 400+ participants are listed to include: "collective management organizations, lawyers, academia, intergovernmental and non-governmental organizations, developers of digital technology and services and creative industries."  Where are the users?  Looks like the student group at Vanderbilt might be smaller but more comprehensive in its stakeholder input. (Full press release.  Conference Info.)

It's great that collecting rights organizations in Europe are engaging in discourse about the changes in the industry and the role they can play in facilitating positive developments.  Some other countries could use a few good collecting organization conferences, especially in the developing world.  (Africa, the Middle East, India.)

Anybody Feel Like Starting a Collecting Society?

Nigeria is desperately in need of one.

What is a Collecting Society?

For those who are unfamiliar, a collecting society is an intermediary between the user of a work and the owner of the copyright in the work.  An artist's work can be used by millions of people any where in the world at any time.  Logistically, it's impossible for one artist to monitor all the possible places where the work might be used.  The collecting society pools the resources of many artists and does this monitoring for the artists collectively.  There are many different types of collecting societies, such as performing rights organizations and reproduction rights organizations.

The Situation in Nigeria

There are currently no collecting societies in Nigeria.  This has been the situation for the past three years.  Grab some popcorn, and enjoy a little drama-filled story.

One, Two, None - the Background

Once upon a time Nigeria was a British colony.  The British Performing Right Society (PRS) represented the colony's musical artists.  Sometime after gaining independence, Nigeria decided it didn't want any foreign owned companies operating inside it's borders.  So the Nigerian section of PRS became MCSN, Musical Copyright Society of Nigeria.  And everything was fine.... Or so it seemed.

The Nigerian government was concerned that the lone collecting society was taking advantage of the artists, taking too much of the royalties for itself and not accounting completely for what it had collected.  The government decided to do something about this and issued the 1992 Copyright (Amendment) Decree.  (Laws of the Federation of Nigeria 2004 Cap. 28 Sec. 39.)  This decree authorized the Nigerian Copyright Commission to set up regulations for collecting societies and required collecting societies to register with the Nigerian Copyright Commission.  The Commission's regulations went into effect in 1993.  (Copyright (Collecting Society) Regulations, 1993.)

MCSN applied for approval but was denied.  The Commission said that MCSN was being sneaky, not disclosing enough information about the royalties it was collecting for its artists.  Like the Itsy-Bitsy Spider continually going up the water spout, MCSN kept renewing their application, but down came the Commission and denied it every time.

The Commission did recognize the importance of collecting societies, so, in 1994, it helped form a new organization, PMRS, Performing and Mechanical Rights Society of Nigeria.  This made MCSN really angry.  Some people thought there should only be one collecting society in the country, and MCSN was there first.  MCSN kept trying for approval, and the Commission finally granted the approval in 2005.  Within six months the President of Nigeria revoked the approval and removed the Director General of the Commission.  The Director General's law firm had represented MCSN in the past and the President felt there had been a conflict of interest.

Somewhere in all of this PMRS and MCSN discussed merging.  The merger talks fell apart, and during this time PMRS's registration lapsed.  And then there were none.

How the Situation Sits Today

Both MCSN and PMRS claim to be proper collecting societies in Nigeria (as can be seen from their websites.)  Both are currently suing the Nigerian Copyright Commission.  Neither can collect royalties for their supposed clients.  Artist are not getting paid, and they're losing out on other opportunities.

International companies, such as MTV, don't know who to pay, so they don't pay anyone.  Nigerian superstar D'banj recently explained to the House Committee on Information & National Orientation that he and several other Nigerian music stars have well over $30,000 each sitting in a bank account in South Africa.  In MTV's bank account.  MTV doesn't know who to pay, so it's holding the money until it knows who to pay.  It's nice that MTV isn't spending the money, but the artists would really like to get it sooner than later.  In the meantime, the artists don't get paid.

Whenever MCSN or PMRS attempt to bring a lawsuit on behalf of one of their artists for infringing performances, the court throws the suit out citing a lack of standing by the plaintiffs.  Restaurants, hotels, bars, clubs and even radio stations know they can't be sued for playing music without paying royalties.  They play whatever they want, whenever they want.  (On the upside for listeners, this produces a lot of really neat remixes, recently featuring a number of Obama's speeches mixed-in.)  The artists don't get paid.

D'banj has also highlighted another way in which the lack of collecting societies is hurting artists.  Nigerian artists are losing opportunities to reach world-class stardom (and at least get royalties from other countries).  International superstars (including R.Kelly and Snoop Dogg) have approached Nigerian artists about doing collaborations.  These types of collaborations could turn Nigerian artists like D'banj or 2Face into the next Akon, a household name around the world.  But the deals fall through.  Why?  As D'banj put it, the artists ask a simple question for which there is no answer, "How do we get our royalty?"

The Questions

Now, being a lowly little intern with no collecting society experience, this sad soap has left this Ipper with some questions.  Perhaps some fellow IP enthusiasts can shed some light on the subject.

Why can't the artists just collect the money MTV owes them by themselves?  Does it have something to do with agreements they may have signed with MCSN or PMRS?  Is MTV somehow prevented from working directly with artists?

Is there any reason interested people with the available capital couldn't come in and start a new collecting society in Nigeria?  One that complied with the provisions of the Copyright Act (Sec. 32B in this version) and the Collecting Society Regulations?  Would the government allow it?  And if it is possible, where can we find these interested people with available capital?  The artists are suffering.

And lastly, can the international superstars stop worrying about getting their own money from Nigeria and collaborate with these amazing Nigerian artists anyway?  Please!

 

 

Image credits: map outline from About.com:Geography; D'banj photo courtesy of goldenrail; 200 Naira notes courtesy of Encyclopedia Britannica; 5, 20, 50, 100 and 1000 Naira notes courtesy of Statni vlajky sveta; diagonal bills courtesy of Hit Naira; all images (minus D'banj photo) found using Creative Commons, but I couldn't always find information regarding the license for the images.