legal – Lucas Gonze blog

copyright don’t ask don’t tell

The other day I emailed a netlabel to ask if I could rehost their album art. They didn’t have a version of it online for me to include using a direct link, and it wasn’t under a permissive license that would permit me to redistribute it.

Then yesterday I emailed a fellow who had put up a sound sample under a license I can’t use to ask if I could have permission to use the sample anyway.

Neither of these people have gotten back to me. That’s not a coincidence – rights holders have an incentive to be cagey. They benefit from saying nothing. I doubt that either of the people I emailed would object to my use. But compare what they get for saying nothing to what they get for saying something:

– If they say no, I don’t help market their works. I represent viral spread to them, and they want it.

– If they say yes, they give up the opportunity to charge me.

– If they say nothing and I do it anyway, they gain both viral marketing and the ability to sue me.

Not giving permission but not saying no is all upside for rights holders.

They don’t even want to be *asked*. Let’s say a rights holder had a web app for infringers to tell on themselves, so that a user of the app would be submitting a statement to tell the rights holder that they were infringing. Wouldn’t this create an obligation for the rights holder to complain? Oh noes! If they didn’t complain they might lose their ability to sue. If they did complain they might lose viral marketing.

So that’s copyright don’t ask don’t tell. Rights holders want you to infringe without either asking them or telling them.

“Sue em all” Awesome

Techies frequently rag on the RIAA “sue em all” campaign, saying that it hasn’t worked and never will. They’re wrong.

As an example of someone saying Sue Em All is not working, this sober analysis by professional economists describes the situation this way:

A catch-all phrase covering letter writing,
bandwidth throttling and legal action against those who upload and
download files. Whilst understandable as a choice given the current
coordination problems, there is little evidence suggesting the costly
process of pushing down on the black market will indeed raise up the
demand for the licensed market for music. Furthermore, there exists the
real risk of a ‘Whack-A-Mole’ game – persistent reappearance of
unlicensed sources for music upon the closure of any source.

“Shadow
pricing P2P’s economic impact” (Will Paige, David Touve, Keith
McMahon; MCPS-PRS Alliance)

It’s true that individuals in private life are just as free to do filesharing as ever, and that the amount of filesharing isn’t going down. However, it’s not true that businesses can incorporate filesharing.

A business that builds on filesharing creates unacceptable risk for its investors. The investors are about return on investment, and they aren’t ok with giant settlements or big ongoing legal bills. Businesses who need music are usually forced by their investors to cut licensing deals, despite the brutal expense.

Google’s settlement of the lawsuit over the book-scanning program is a good example. They had a pretty damn good legal case if they wanted to fight it out, but they stood to gain more by making up. Fighting meant uncertainty over whether the final judgement would vaporize the entire publisher project in the end. Settling now meant putting bounds on the costs.

Standing on principle is not what businesses do. They exist to make money. Making money means controlling risk. Controlling risk means preventing ruinous legal judgements.

And users gravitate towards experiences supported by business, because business support allows for better usability.

Case in point, the Apple silo. Apple makes it very easy to get music onto the iPod by buying at the iTunes music store. If you’re an iPod user, you’re an iTunes user, and if you’re using that software then it’s often easier to buy licensed music from the iTunes store than to download from a filesharing network and import to iTunes.

Not that users *can’t* do filesharing — that would be a ridiculous claim — but that the usability of licensed commercial suppliers is greater.

And usability is a huge factor. People have a hard time operating computers. They have an easier time when businesses devote resources to helping them. When they have an easier time of one thing than another, they do more of the easy thing.

Again, it’s not that lawsuits against private filesharers have caused private filesharing to go away. For an individual engaging in filesharing the calculation is clearly on the side of doing it. Individuals who are rational actors *will do filesharing*.

It’s that the same calculation doesn’t produce the same result when it comes to support businesses.

I hear you say: what about My Favorite Software, which is still around? What about X-Factor-Gee-Whiz-2000? What you don’t know is that the proprietors of those companies almost certainly are having meetings with the labels. They are making the pilgrimage to Santa Monica to kiss the ring and seek absolution. If they’re still doing what they’ve always been doing, the reason is probably that they can’t get a favorable deal.

Open source software is an exception; without investors, it doesn’t need to control risk. Generic software which can be used for filesharing is the other exception. Nobody thinks it might lose a big court case.

As a result of all this, the record labels are busily cutting licensing deals. It’s simply not true that they have scared the customers away. Now, maybe the companies taking out those licenses are going to go out of business, leaving the labels dead in the water in the long run. But the jury is out on that. We won’t know for a few years whether licensees can survive and under what conditions.

What we do know is that the labels have created a customer base by suing it into existence.

attribution and reuse

Play the Web is a blog with the premise of exploring technical hurdles for making chains of derivative works:

On this blog we want to talk about media reuse on the Internet and enabling reuse in a responsible way. Media companies’ reactionary response of restricting all use is throwing the baby out with the bathwater but conversely doing away with copyright on the Internet altogether is no better. There’s a middle way and we need to build tools to facilitate that path. Tools to recognise media and enable reuse.

They’re assuming that the end result of their work will be part of The microformats.org Initiative:

Our immediate challenge is discovering what licensing and ownership attributes are associated with a given piece of media. There are millions of discrete pieces of media on the Internet, how can software tell which are reusable, which are licensed, which are public domain, etc.? A simple solution to this problem is offered by microformats. By embedding meta-data with media in a standardised, machine-readable way we open the door to all kinds of applications that rely on this knowledge.

And they already have an excellent post on how to do attribution for a reused photograph:

I’m now kind of concerned with what to call “Attribution”. In the Creative Commons attribution is a legal term, but what I really want to relate is:

From where did I find the content: Miss 604’s blog. (The Copied Source)

From where did the original content come from: Squeaky Marmot (The Original Source or at least the source Miss 604 found)

Do you reuse content? Do others reuse your content? If so, what do you think? How would you like to see the “attribution”?

I have a couple data points to offer.

One, non-commercial users don’t care about copyright. They know zero about it, they don’t know of any reason to care, and they aren’t going to change. (Software developers, who deal with free and open source software, are an exception to this rule). Commercial users may care, but can’t use content under a non-commercial license. So in practice the issue of attribution only has a real-world impact for derived works created by commercial entities. Source works which are licensed to allow both derivative works and commercial use are the ones we’re talking about.

Two, in XSPF there is an element for giving attribution to the sources of derived works. The idea is that one person would incorporate another person’s playlist into their own, and would use this element to give credit. It is defined as a chronologically-ordered stack:

An ordered list of URIs. The purpose is to satisfy licenses allowing modification but requiring attribution. If you modify such a playlist, move its //playlist/location or //playlist/identifier element to the top of the items in the //playlist/attribution element. xspf:playlist elements MAY contain exactly one xspf:attribution element.

Such a list can grow without limit, so as a practical matter we suggest deleting ancestors more than ten generations back.
<attribution>
  <location>http://bar.com/modified_version_of_original_playlist.xspf</location>
  <identifier>somescheme:original_playlist.xspf</identifier>
</attribution>

The stack framework is a pretty elegant tool for handling this requirement, and I’m happy about how we did it. However this element is rarely if ever used because no current playlist sharing sites that I know of both expect playlists to cross site boundaries and expect users to make new playlists out of old ones.

what is the point of the right to redistribute?

Something I’ve never understood about Creative Commons is the emphasis on redistribution rights.

For the most part, CC licenses focus on who can upload a copy of a file. A song under any CC license can by uploaded by anybody whose activity fits within the terms of the license. For example, the Attribution-Sharealike license allows third parties to upload copies without asking permission as long as they give attribution and use the same license on their uploads.

Who needs the right to upload? It’s not something that anybody making work under a CC license even needs to grant, since virtually of them host freely accessible copies on the web. All anybody needs to access these works is to know the URL of the original file.

With files that are already on the web it doesn’t make sense to do filesharing, so there’s no need to permit redistribution. Filesharing is purely a pain in the ass for users, who have to leave the normal browser experience and launch a dedicated piece of software. You could maybe make a case for BitTorrent as a way to spread the bandwidth load, but that relies on a level of popularity which almost no CC works attain. And anyhow, there’s no need for an explicit license to permit BitTorrent as long as the rights holder hosts the seed file, since that would very much imply that BitTorrenting was fine.

The only thing that you really need a Creative Commons license for is the ability to make derivative works, which gives you the ability to do remixes. This is genuinely useful because there is no other way to do it. Without a license to make a derivative work you are up a creek, and making derivative works is a fundamental operation for participation in culture.

music is $$$ free

Windows Is Free (A TLUG Article):

If every user who had a cracked copy of Windows had a legitimate version of Linux instead, what would the percentage of computers running Linux be? More than there are now, that’s for sure.

That’s also true for music.

Unauthorized distribution is bad for open media.

gurdonark:

This whole technological revolution is useless if all it will amount to is the enhanced ability to misappropriate mainstream culture. It is as if everyone suddenly got the ability to play guitar like Hendrix, but only wanted to play covers of “Purple Haze” in shows at the Holiday Inn.

This drives me bananas.

We get to live though a major transition. Huge changes are happening at an artistic level, bigger than any in our lifetimes so far. Much bigger than the change from swing to rock, or from rockabilly to electronica.

Personally, I want to be right there in the middle of the new thing, not over on the lagging edge with Pirate Bay. Why would anybody want different? I don’t get it.

From ten days that shook the world:

NEXT morning, Sunday the 11th, the Cossacks entered Tsarskoye Selo, Kerensky (See App. VIII, Sect. 1) himself riding a white horse and all the church-bells clamouring. From the top of a little hill outside the town could be seen the golden spires and many-coloured cupolas, the sprawling grey immensity of the capital spread along the dreary plain, and beyond, the steely Gulf of Finland.

There was no battle. But Kerensky made a fatal blunder. At seven in the morning he sent word to the Second Tsarskoye Selo Rifles to lay down their arms. The soldiers replied that they would remain neutral, but would not disarm. Kerensky gave them ten minutes in which to obey. This angered the soldiers; for eight months they had been governing themselves by committee, and this smacked of the old régime….

Shelly Palmer: Music Publishers Lawsuit against YouTube Doesn’t Solve the Problem

Shelly Palmer: Lawsuit: Music Publishers v. YouTube Doesn’t Solve the Problem – Media on The Huffington Post

Lawsuits will not solve the problem, which is: there is no easy way to identify who owns which rights in and to most pieces of music and there is no easy way to get a quote and pay them.

And as part of this, there’s no way to automate the process of figuring out whether some bit of user generated content is aboveboard or not.

For example, the composer of a famous hit song once emailed me the URL of a famous hit recording of it. It was hosted on his personal ISP account. He told me that the performer on the recording had said it was fine.

Everything about this set up was indistinguishable, on a technical level, from an unauthorized source, and yet he absolutely had at least some of the rights.

Or did he have the rights? Had he done it as work for hire? Had the famous singer really said that it was ok? If so did the famous singer even have the rights? And how could a web developer hosting user generated content write a program to figure this out?

On a personal level this songwriter was a maniac extremist about copyright. He was to the right of Satan on the topic of Napsterization.

Dae somethin’ we ken, can ye?

David Kilpatrick says:

There are ways in which the overall output of YouTube could be fairly assessed to provide a royalty payment and give permission for all covers. A snapshot of the music content on a given date could be analysed (a hell of a task) and YouTube pay an agreed overall royalty, divided in the usual way according to the analysis. This is grossly unfair to unsigned, minority interest stuff as what always happens is that the big copyright holders get all the money.

It’s how PRS (Performing Rights Society) do it in the UK. On September 7th, one of their reps is due to visit our folk club. Our crew has been briefed – no Beatles, no Elvis, no Elton John etc! Not too much traditional either (it goes nowhere, they still charge the same fee). Phil Ochs, John Prine, Leonard Cohen, Billy Bragg, Ewan MacColl, Dick Gaughan stuff – great! Make sure the PRS rep lists a set of deserving copyright holders instead of Sir Paul, Jacko, and corporate friends. Then until the next spy is sent to asses us, our playlist will make sure the £6 a week royalty fee provides a few pence to worthwhile songwriters…

And, of course, people can then play as much commercial cover stuff as they like thereafter. You can’t stop ‘em, it’s what the average pub audience wants. ‘Dae somethin’ we ken, can ye?’

I sense that that means “what can you do about it?”

So what *can* you do about it?

Pub players are jukeboxes for popular songs. That’s the gig and I don’t see any way around it. But I also don’t see that as a blocker, because there are other gigs, and new songs will become popular through them.

It’s not even necessarily a thing which you have you *do*, because this whole thread about cover songs is as descriptive as it is prescriptive. Songs which can’t be covered on the internet aren’t going to remain pub standards. That’s the way nature works. Do nothing, you will receive your new body of songs which are both popular and coverable anyway.

Yes, this is about creating culture which is amenable to participation, and for musicians this means playing songs which others can play too. But all you have to do is only play songs on the internet which you learned from others playing on the internet and things will work out that way no matter what.

The results won’t arrive instantly, they will arrive very slowly, over decades. It’s a drip-drip-drip kind of process. Before you know it, the songs which have been controlled too tightly will be just as forgotten as the waltzes that I have been covering here.

Joe Pribek on the unreturned library book from hell

In this comment on Brett’s post, Joe Pribek sent a chill down my spine:

Personally, I would not release a cover song for free over the internet. The nature of the digital world is that data doesn’t disappear. Over a period of time, even at a couple hundred a year, the downloads would add up and at some point the copyright owner could demand the mechanical royalty for each download.

Ok, so you bang out “Proud Mary” on the acoustic, put it up on Blogger and forget about it. Ten years later a bill arrives to remind you that the page is still there and that you have been accumulating debt the entire time.

guitar lessons as the transmission of culture

Per NPR

Thousands of guitar students lost a valuable resource last week. The most popular guitar teacher on YouTube saw his more than 100 videos yanked from the site. The reason: a music company accused him of copyright infringement for an instructional video on how to play a Rolling Stones song.

Culture relies on shared references. Sharing requires copying. When a new guitarist copies the way that a skilled guitarist plays a well-known song, culture is being transmitted from one generation to the next.

When a music publisher prevents musicians from learning a song, they are destroying the value of the song. There’s no reason to learn the Smoke on the Water riff except that everybody else knows it, and cultural ubiquity isn’t possible unless learning is absolutely free and unencumbered. Notice that the song in the original quote is by the Rolling Stones, a band that couldn’t matter less if it weren’t part of pop culture canon.

One result of copyright extremism will be the disappearance of cultural icons like the Rolling Stones. They haven’t contributed anything fresh to the culture for close to forty years, and without third parties reusing their old work in ways that make it fresh they hardly exist. In terms of 2007 pop culture, all those covers of “Paint it black” *are* “Paint it black.”

This is why I am resurrecting 150-year old songs and posting them, along with sheet music, on my blog — it’s possible for those songs to be used as source material for new work.

But I suppose that this is needless worry. Waves of takedowns for items like free but unauthorized guitar lessons are usually part of licensing business deals. Nobody bothers to ask for the takedowns unless they have a competing commercial product for which they have paid to license the source materials. If unlicensed guitar lessons featuring Rolling Stones songs are being knocked down, it probably means that licensed ones are coming up behind them.

Carrie Waltz

This post is one of my acoustic guitar recordings. It is a tune called “Carrie Waltz” which was composed by a guy named D.E. Jannon and published in 1854. I learned it from sheet music at the Library of Congress web site.

Lucas Gonze — Carrie Waltz

I’m only publishing an MP3, not an Ogg anything or a lossless version or the Audacity original. And I didn’t pay any attention to the tagging process, so it might or might not have reasonable metadata and proper Creative Commons licensing in the ID3 tags. It takes forever to get all these details right and I want to see how it feels to focus on the tunes and not worry about the computer maintenance.

This recording is under a Creative Commons BY-SA license per my standard license statement.

Here’s the sheet music original that I worked from: