Archive for the 'music law' Category

RIAA Backs Down and Out

Last month, the RIAA (Recording Industry Association of America) admitted a massive defeat when they announced that they would no longer be pursuing individuals guilty of peer-to-peer file sharing. As they attempted to flex their corporate muscles in the dorm rooms of music lovers throughout the country, the RIAA completely ignored the fact that not only was the epidemic of file sharing actually a pandemic that they are virtually helpless to stop (and in reality could cost them more in legal fees than the fines bring in), but they also failed to take into account the fact that without significant portions of the proceeds going back to the artists, the musicians themselves wouldn’t back them. RIAA Screws Musicians, 3/18/08

Now, the RIAA, in the final throes of these legal actions, has dropped the ball once again. They claim on one hand to be for the artists, seeking revenue they have lost, but as already stated, they aren’t giving the artists any of that money. On the other hand, they claim that their actions are simply to publicize their fight against illegal file sharing. Ironic then that when the judge presiding over the latest hearing and trial brought against Boston University students stated that a live web feed of the proceedings would be allowed to be broadcast, the RIAA opposed it. If you’re seeking to strike fear into the hearts of illegal downloaders everywhere, by first announcing that you’re no longer going to be hunting them, and then actively trying to block a live video feed of the proceedings, you’re not really putting any teeth into those claims. And blocking the feed certainly doesn’t give you the publicity you were looking for.

When an entity as large as the RIAA produces a failure on the level that they have here with their pursuit of illegal downloaders, one can only laugh. They not only perpetuated the vision of them as too weak-willed to follow through on serious criminal lawsuits designed to halt illegal file sharing, but more importantly they painted the entire history of these proceedings as a joke that was never about files, never about artist revenue, and simply only about themselves. Maybe I’d have some sympathy for the failure of these suits if they were giving money to the artists or legitimately trying to work with file sharers to stop the process. But when the big bully on the playground expects you to give up your lunch money just because he’s bigger than you, I say make him make you give him that money. In the end, the RIAA, for all their posturing and face-value scare tactics, failed themselves and the musicians.

If you’d like to see just what an RIAA hearing looks like, you’re now enabled to have an inside look at the courtroom on January 22nd. But tune in… the RIAA might not have many more of these fights to wage. Click here for the Wired post and links to the video feed sites.

John McCain: Music Thief pt. 2

Several weeks ago at the height of the election race, I posted concerning McCain and Palin’s unauthorized campaign use of songs by several different artists. Well, the campaign is over, McCain has lost, but that doesn’t mean he’s ready to throw in the towel on the lawsuit brought against him by Jackson Browne. McCain (or, as McCain claims, the Ohio Republican Party) used a 30 second clip of the Browne song “Running on Empty” in a commercial televised in Ohio. While a majority of McCain’s usage of music by groups that are Democrats and in other ways don’t support this aging war-hawk isn’t eligible for trial as it was broadcast live and publicly at venues that traditionally have rights to use songs, Browne’s lawsuit is the exception because it did it in a nationally televised with without asking for rights to use the song.

But who would for a second think that McCain, despite making campaign promises based around honesty and integrity, would actually be honest and have integrity? That’s why, rather than admitting he did wrong and seeing to compensate Browne for it, he’s counter-suing claiming that these are frivolous lawsuits. McCain claims that, “Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the minuscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine.”

That defense is contrasted by Browne’s claim that the use was a violation of his publicity rights, copyright infringment and a false endorsement. My question is how can McCain claim that his use was public interest? It certainly wasn’t in the interest of the person who made the song, a longtime Democrat. The use of the song didn’t help the public in any way. You can say that there was a minuscule amount of the song used, but 30 seconds of a 2 minute spot, or 25% of the commercial, doesn’t seem minuscule to me. But to me, the greatest threat here is the unauthorized use of a song to give the appearance of promotion on the part of the artist. If an artist is clearly against what a politician stands for, then the “political” fair use argument shouldn’t stand. Of course, this counter suit and the failure on McCain’s part to take responsibility for what he and his party did simply makes me more certain that the country picked the right President. But where do you stand on “fair use” and politicians using musicians’ songs without their knowledge?

John McCain and Sarah Palin: Music Thieves

We’ve been told at numerous points over the past couple months that John McCain and Sarah Palin are the correct people to run our country for the next four years. While I usually try to keep my political leanings out of the EvolvingMusic blog (I mean, we’re here for music, right? There’s enough politics already), I find it absolutely shocking that the McCain campaign continues a practice that is both disrespectful and illegal.

We hear them talk about “shaking up Washington,” bringing the idea of ethics back to politics, and a chance for change. We hear Palin all the time tell us that she’s going to “talk straight to the American people.” Basically, they’ve run their campaign on the idea of honesty, transparency, and a return to basics. If that’s the case, then why are they blatantly, without permission and regardless of the wishes of the musicians, using songs they have no right to use throughout their campaign?

For those of you unaware, an artist with a copyright on a song has to give permission for the song to be used. McCain’s camp has now used, without permission and frequently with strenuous objections by the performers, songs by Heart, Foo Fighters, Jackson Browne, John Mellencamp and most recently, Survivor. What’s worse is that they aren’t limiting this illegal use to just playing the songs on campaign stops… they’ve gone so far as to include a few in television ads.

What this practice demonstrates is not only a willingness to steal music from the artists, (and therefore a pre-election demonstration of how rigidly McCain wants to follow the laws of our land) but a blatant attempt to sway public opinion and perception based on the popularity of pop music. McCain is trying to make himself popular by using music that most people know and enjoy. The problem is that when the majority of the artists are against McCain and his policies and don’t want to be associated with him in any way, it amounts to a willful and heinous disregard for the wishes of other people, the legal rights they have over their own intellectual material, and an unabashed attempt to mislead voters by pulling at their musical heartstrings.

While most artists have simply spoken out and demanded the cessation of usage of the songs by the McCain camp, Jackson Browne has stood up and filed suit against McCain and the Republican Party. The problem is that even if the artists request a stop to it or file suit, the song has already been used, the damage has already been done. You can’t, as we’re often told, unring the bell. Just how many people nationwide are even aware when they heard the Foo Fighter’s “My Hero,” that the Foo Fighters would later strongly object to the use and tell McCain to knock it off? My guess is not as many as actually heard it.

Now obviously, my interest here as a writer covering music is the issue of songs being used without the permission of their owners, and what that means for the music industry, and more importantly, the artists. If a man like Jackson Browne has been making music all his life while simultaneously engaging in supporting the Democratic party, he should at least be given the right to turn down McCain’s request. But if McCain doesn’t even bother to request, it hurts the entire industry by setting a standard under which a prominent politician running for public office can get away with whatever he wants musically, until someone like Browne steps in to stop him. The public usage of music, particularly for endorsement, without the express written consent of the musician is a slippery slope that would be very dangerous to start down.

But music and copyright issues aside, let’s look at the fundamental issue here. John McCain and Sarah Palin are thieves. They are stealing other peoples’ work, using it against their wishes and using it to promote themselves. They are disregarding numerous laws in the process and establishing an atmosphere where they demonstrate their belief, as they share with the current administration, that they are above the law. You talk about speaking for the people, but here they are shouting for people that want no part of them. And the really big question you need to ask is this: if a Senator from Arizona and the Governor of Alaska are willing to so blatantly infringe on other peoples’ rights, use things that aren’t theirs for their own political gain, and actively mislead the very citizens they are supposedly “straight talking” to, what outrageous and illegal things will they be willing and capable of doing if they actually become the Executive Branch?

For Part 2 of this story, click here.

Remix Culture is Exploding

DIY music mashups are becoming increasingly prevalent as more and more musicians see the value of interacting with their fans. Luckily, as DJ Earworm points out, “the music industry is beginning to see the benefit of increased exposure through releasing stems directly to the public”.

Remixing used to be largely the territory of DJs, producers and other “sonic manipulators”, who would typically overlay the a cappella from one song on top of another or sometimes add their own sounds. But now fans are embracing the concept. We owe a big thank you to Radiohead for popularizing the fan remix concept (again) and to all the other musicians who have begun to release stems through various mediums. More and more artists, both underground and mainstream, are warming up to the idea.

Increasingly, average people don’t just want to passively be entertained by media anymore. They want to experience it. Whether it’s pictures, audio, or video, people are manipulating and mashing up media to their hearts’ content. YouTube is a great example. People want to be seen and heard and be free to exercise their creativity in new ways. (Sometimes leaving the rest of us scratching our heads and wondering why they would possibly post a video of themselves doing that… but hey, they should still have that freedom and ideally the tools to do so.)

One has to give some credit to Girl Talk as well. Through his enthusiastic use of unauthorized samples, Girl Talk has been a pioneer in the mashup revolution. While legal remixing is certainly different than the bootleg subculture that grew around unauthorized sampling, these two sides of remix culture seem to be slowly converging. As artists and the powers that be in the music industry begin to embrace the perspective that when someone samples your music it’s not stealing, but rather free promotion, the boundaries begin to melt away. And thus, music evolves.

In an article delving into some mashup history and the growing mashup revolution, Roberta Cruger says:

“In DIY culture, consumers are the producers, owning the tools of production — a laptop instead of guitar, bass and drums. The bedroom is the studio and factory machinery moves out of the nightclub onto the Internet for millions to access. The media monopolies are fighting back, but with the airwaves gobbled up by conglomerates, homespun mash-ups may be the people’s digital antidote.”

When a need becomes apparent (in this case, the desire of fans to remix), naturally the solutions begin to surface as well. Like the MixMatchMusic Remix Wizard, which allows artists (e.g. The Bayliens) to host their own remix promotions easily. As remix culture continues to grow, it’ll be fascinating to see what kinds of creative fusions and deconstructions happen. New genres will evolve, the industry will continue to take unpredictable twists and turns, and who knows what other clever things will surface as the tools and the freedom to explore and create are placed in the hands of music consumers.

For example, someone took the Remix Wizard (created to facilitate music remixes) and set up a page called “Help Sarah Make Sense” where you can rearrange Sarah’s words (for better or for worse). Pretty funny actually. Go make a remix!

iTunes, DRM and Artist Royalties

Earlier this week, alarm bells were ringing when a quote from Apple in 2007 found its way back to the top of the news heap. That quote? That if royalties were to change to a point of being unprofitable to Apple, it would shut its iTunes store down. Now even the thought of this, among Apple and its competitors, has been brewing frightening thoughts for the consumers for a while due to the fact that virtually all the music these stores sell is DRM protected. Of course, the DRM is built into the song, so what exactly happens if the company selling the songs ends their existence? Well, it looks like the DRM for the material would expire, leaving consumers with hundreds if not thousands of “purchased” songs that will no longer play anywhere. As a music lover (and legal buyer of mp3s), this kind of news, even if it is an undeveloped thought, causes a good deal of frustration. Here the studios want consumers to pay for music, foregoing the option of downloading all the music they want illegally for free, but the copyright protection within the music means that if the retailer goes down, the files go down with it? That’s like buying a CD at Tower which is then erased when Tower goes out of business (you all do still remember Tower, don’t you?)

So what can we do about it when the very mechanism that has allowed music labels to go digital, and therefore the infrastructure that controls all of our legal downloads, is compromised by companies willing to close their DRMs? Unfortunately, not much. Short of burning all of your DRM tracks to a CD and then re-ripping them to mp3s to strip of them of their DRM (and some sound quality in the process), if a store goes down and discontinues its DRM licensing, all the tracks you’ve bought could die on your iPod. This to me seems like the ultimate Trojan horse of the music industry…we don’t want you to have mp3s, but if you do, we’ll create a way so that once they’re in your music library, should the stores you bought them from close, we’ll demolish your entire music collection from the inside.

I understand the purpose of DRM, but unfortunately its just not a viable business model if there are ways to stop the music playback at any point after the purchase. The point of buying music is that you have it forever. All the CDs I bought are still mine and will be mine for as long as I manage not to lose or damage them. The idea that you could buy a song which at some point in the future becomes unusable is, to me at least, outrageous.

The reason that all of this has come about this week is because the Copyright Royalty Board (CRB) was weighing a decision to raise the artist royalties on digital downloads from 9.1 cents per song to 15 cents a song. From what I can ascertain from the article announcing the steady royalty fees, a .99 cent iTunes song is sold like this…

1) Apple sells the song for .99. 2) Apple keeps .29. 3) Apple gives .70 to the record label. 4) Record label gives the artist 9.1 cents, keeping 60.9 cents. I don’t know about you, but even at 9 cents a song, it seems like the labels and iTunes are getting over on the artist. Are we really supposed to believe that the iTunes store deserves to keep almost three times as much money for a song it sells than the artist receives?

What this scare does do is make it painfully obvious that the record labels and online music stores need to create a way and find a method to allow consumers to legally retain their music, no matter what happens to the store you buy it from. Should royalty rights eventually be raised in favor of the artist, it would be a travesty for Apple to claim it can no longer operate iTunes profitably (with the number of sales they have per year and the fact that they’re getting money just to be a middle man, it would be very hard for me to accept the idea that they aren’t profitable), disable the DRMs and leave music consumers with a bunch of dead and unusable files. Apple needs to show a little more foresight and decency when it comes to wolf cries of lost profits with a change from 9.1 to 15 cents of royalty. This could have been Apple simply playing politics in order to protect its profit margin, but even then the greed factor, given what the artists out there are making, comes into play.

For now (the CRB’s decision lasts 5 years), it appears we can rest easy. But it makes it clear that more thorough examinations of the digital music sales industry, DRM technology and what the rules and technology mean to consumers are necessary and should not be ignored.

Upcoming: SanFran MusicTech Summit 10.20.08

The SanFran MusicTech Summit is making yet another appearance next month (Oct 20th). If you missed the first two summits (which we covered here and here) and are anywhere near the bay area, I highly suggest you get yourself a ticket. (Or at least follow the live Twitter stream if you can’t be there in person).

Photo by Samantha Murphy

In their own words, the summit strives to “bring together the best and brightest developers in the Music/Technology Space, along with the musicians, entrepreneurial business people, and organizations who work with them at the convergence of culture and commerce.” Whether you want to learn about the evolving music industry from the people who are most entrenched in it, introduce your product or business to the audience that most needs it, or just be a part of the (r)evolution that is taking place, it’s a great experience.

Between the intense panels (some of which involve heated discussions analyzing complex issues and some of which simply celebrate the exciting innovations at the intersection of music and technology), the relaxed and stimulating networking opportunities, and the insane amount of intellectual and creative juices that are flowing, there is much to look forward to. Brian Zisk continues to impress with his increasingly popular and well-run event that is more relevant now than ever before.

So, what are you waiting for? Go buy your tickets here.

The Future of Copyright Law: Moral Rights & Attribution for Music

As a musician, my biggest concern with releasing my music over the web for others to remix is not that I’ll get paid if money is made, but that I’ll be attributed for my work. This is because, as an unsigned and unknown artist, I am currently more interested in cultivating a fan base than profiting from my art. As I see it, I will find creative ways to profit from my work once I have actually formed something that resembles a fanbase.

A good way of providing artists with attribution, irrespective of the destiny of their art, is through implementing a moral rights scheme that would ensure attribution for authorship, even if ownership of the music belongs to a third party. Originally laid out in Article 6bis of the Berne Convention of Literary and Artistic Works, moral rights were extended to music in 1996 through the WIPO Performances and Phonograms Treaty. Article 5(1) of that treaty reads: “Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performance or performance fixed in phonograms, have the right to claim to be identified as the performer of his performances…and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.”

Moral rights generally include three rights: the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. These rights are separate from economic rights, and belong exclusively and perpetually to the original creators of the work, and not any third party who assumes ownership of a copyright, such as a record label.

In the music context, I don’t believe in the right to integrity, as in my mind, a piece of music is never finished, but rather constantly evolving. But, the right of attribution is paramount in the digital context. Since media can so easily be shared today, sharing should be embraced as long as the original authors are always attributed. Creative Commons has embraced this notion since its inception, and it’s time for Congress to recognize that this needs to be added to the Copyright Act to meet the necessities of the digital era. In fact, the United States Court of Appeals held, in Jacobsen v. Katzer, that Creative Commons licensors are entitled to copyright infringement relief. This means that if somebody uses a CC work that requires attribution without attributing the original author, a claim for copyright infringement exists.

With this legislative change, the US, a Berne and WIPO signatory, would seemingly be killing three birds with one stone: 1) deal with copyright law’s inadequacy in the digital age, 2) comply with Berne by adopting am adequate Moral rights scheme, and 3) comply with the WIPO treaty by extending moral rights to music. While the US became a member of the Berne Convention in 1989, the US has chosen to narrowly adopt a moral rights scheme and to apply it exclusively to visual arts under the Visual Artists Rights Act (VARA) of 1990. By omitting to do so, the US is failing to comply with the Berne convention and the 1996 WIPO Performances and Phonograms Treaty. So, maybe its time for Congress to actually got off its ass! I mean, are musicians less important that visual artists? Or is it that visual artists have more lobbying power?

An adoption of a music moral rights scheme would greatly tickle my paranoid pickle in the digital era, and it would help me feel comfortable in distributing my digital music in creative and innovative ways. Evolve, damnit!


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