Category: Music

R Street & Techdirt Dissing Prince

“R Street is a free-market think tank with a pragmatic approach to public policy challenges.”         — R Street About Page —

If one is going to comment on public policy, then one ought to make an effort a) to understand the nature of a given topic; and b) to present facts instead of fiction.  In this regard, R Street might want to be careful about republishing articles from the blog Techdirt, as it did last week with this Op Ed by Zach Graves all about what Prince did wrong in the management of his career.

Graves notes that although Prince was a musical genius, he was one who “…never quite found the right approach when it came to licensing his music for redistribution—in spite of the fact that he sold over 100 million records, placing him among the best-selling artists of all time.”  If it seems as though the second half of that statement contradicts the first, that’s because it does.  When you combine terms like musical genius and best-selling artist, it takes some chutzpah to presume to know best—in a post-mortem analysis—how the artist in question might have made wiser choices.  In fact, Graves is working overtime trying to shoehorn Prince into an online market the artist rejected. He writes, “ … his fans were left in an odd position, on the news of his death, of being frequently unable to provide links to Prince’s massive oeuvre.”

Speaking as a representative of the 80s, and of those who have been Prince fans since he first emerged, that statement is not only surprisingly disrespectful to the wishes of a beloved artist who just passed away, but it lays bare a mindset that actually believes these fleeting moments on social media are of much greater emotional and cultural value than they really are.  The shared sense of loss among Prince’s fans is not diminished because a friend does not post “Little Red Corvette” on Facebook via YouTube.  Micro-moments like these are fine, occasionally interesting, but are utterly forgettable because of the very nature of the interface itself. Our relationships with Prince’s music, as with all music, are based on associations his songs have with tangibly profound, wonderful, painful, or intimate moments in our lives.  And if the next generation doesn’t form these same types of realtionships with music, then they probably won’t relate to music at all.  Meanwhile, the fact that YouTube & Co. were deprived of a few million advertising impressions they would have sold on the trending of Prince’s death is exactly what he wanted to deny these companies.  He saw through the lie that the OSP’s revenue model has anything whatsoever to do with his music or our love of it. And he was absolutely right.

It is fairly well known that Prince spent considerable effort and resources during his career in order to gain and maintain control of his work.  Quite simply, he did not like anyone dictating how, when, or where his music ought to be distributed—not Warner Music 23 years ago, not YouTube last month.  So, the fact that Graves chose to compare and contrast the market potential of Tidal (which licensed Prince) with Spotify (which Prince rejected) is entirely irrelevant, whether Graves’s math in this case is sound or not.  Prince was a Mozart.  And it’s rare to see that kind of genius without the individual also being fiercely proprietary about his work.  And although Graves acknowledges that Prince’s decision to license exclusively through Tidal “may have been a reflection of his proclivity to assert tight control of his brand,” he remains steadfast in his bias when he writes “…making music less accessible poses serious challenges for artists and consumers alike.  For one thing, as English singer/songwriter Lily Allen explains, it will reinvigorate incentives for piracy.”

News flash:  Prince did not disappear into obscurity despite his rejection of these “free” platforms.  Yet, somehow, Graves believes the “lesson” we are supposed to draw from Prince’s legacy is that this hugely successful, influential, and universally-respected artist was fundamentally wrong, while the new-economy sages at Techdirt and R Street are right. Their logic says that if the artist chooses not to be fractionally exploited by a YouTube or a Spotify, then he naturally deserves to be fully exploited by outright piracy.  Put that way, it sounds more outrageous, right? But that’s essentially what Graves and others are saying.  Prince told that proposition to go screw itself, and maybe that’s the real lesson he leaves behind.

Of course, Graves actually reprises the blame-the-artist-for-piracy theme because he wants to point readers to a remarkably obtuse statistic presented by Techdirt founder Mike Masnick’s very own, brand-new “think tank” called Copia.  The stat says that, “55% of 18-29 year-olds pirate LESS when offered a free, legal alternative.”  Wait for it. It’ll happen…

I’m no longer amazed at the capacity some people have for presenting bad news as if it were good news.  Because somehow Copia et al think nobody will notice that the truly stunning fact revealed by this stat is that 45% of the demographic will continue to pirate as much as ever no matter what free, legal alternatives are available.  But creators should feel molified by the prospect that the other 55% of the market will pirate less!  It is certainly indicative of a Kool-Aid narcosis that Techdirt, Copia, and R Street would even present these data with a straight face. After all, if one were to provide the same market research to the dumbest investor on earth, no matter what the business sector, he would tell you that no investment will be forthcoming.  Try pitching investors and telling them that 45% of the target market is guaranteed to steal from you while 55% of the market will only steal some from you, and watch what happens.

Perhaps most importantly, R Street in particular should be held accountable for republishing an article that completely misrepresents the facts in what is commonly called the “dancing baby” case.  Graves writes …

“Famously, Prince, via Universal Music, was behind the “dancing baby” DMCA lawsuit, which featured Prince’s “Let’s Go Crazy” playing faintly in the background of a short clip as a toddler danced. Ultimately our friends at EFF, who were representing defendant Stephanie Lenz, prevailed on their fair use claim. In 2013, EFF awarded him their “Raspberry Beret Lifetime Aggrievement Award” for “extraordinary abuses of the takedown process in the name of silencing speech.”

Setting aside the relatively minor detail that Prince himself was never directly involved in this case, the most important fact is that EFF sued UMG after the Lenz video was actually restored to YouTube via counter-notice procedure; and nobody ever sued Stephanie Lenz–at least not pertaining to this matter.  The reader is free to review the facts of this eight-year litigation and decide for himself whether the temporary takedown of the “dancing baby” video represents “award-winning” abuse of DMCA—or if perhaps the EFF chose this case because it would inevitably lead to misrepresentation exactly like the quote above.  “Prince sues mom and baby” makes good drama, but it just didn’t happen.  And to say that it did in the immediate aftermath of this artist’s passing is as rude as it is irresponsible.

As for Zach Graves’s concern that Prince’s music may not “reach a new generation of fans” due to its absence from certain free platforms, I’d like to tell him not to worry.  Prince’s work has touched millions of people and influenced thousands of other musicians around the world. It will transcend generations in spite of what web platforms have done to culture and memory itself.  At the same time, although YouTube’s predatory and monopolistic strategy may position its platform as “essential” in a certain sense for musical artists, one must ask if this winner-take-all outcome is the kind of “free-market pragmatic approach” R Street policy hopes to support.  The idea that Prince’s music needs YouTube in order to live on in our cultural memory would be a quaint conceit if it were not the kind of arrogant proposition that has hypnotized many policy thinkers by means of ceaseless repetition.

Understanding DMCA with help from Michelle Shocked

It is a chronically repeated theme—and therefore a widely held misconception—that the DMCA is solely a mechanism for rights holders to unilaterally and unequivocally remove content from the Web “without due process.” In fact, this belief is so deeply ingrained that just citing the acronym by some journalists and bloggers is sufficient to denote censorship for many readers. We encounter language like censored by DMCA, speech chilled by DMCA, threatened with DMCA, and so on.  Unfortunately, this shorthand only perpetuates a general misunderstanding of what the DMCA is and how it works with regard to the remedies and counter remedies for alleged copyright infringements. As a result, critics who repeat this one-sided narrative can actually wind up frightening some of the very users and creators whose interests they claim to represent.

For starters, it should be understood that the process of sending notices or counter notices under DMCA is not a casual transaction for either sender or receiver.  Senders of takedown notices must declare under penalty of perjury that they are providing accurate information; that they are legally authorized to “act on behalf of the owner…”; and that they have “…a good faith belief that the use of the material is not authorized ….” Likewise, senders of counter notices, which are used to restore or retain contested material online, also must declare under penalty of perjury that they have “a good faith belief that the material was removed or disabled as the result of a mistake or misidentification .…” This can all be rather intimidating for both rights holders and for users of copyrighted material who don’t have access to legal departments—and who might even get all manner of bad advice from colleagues making unqualified assumptions about copyright. While the largest senders of DMCA takedown notices are, naturally, the corporate owners of thousands of works, the reason these entities are able to send out tens of millions of notices with a very small margin of error is that they do have legal departments dedicated to oversight and enforcement of their rights, and they do know what they’re doing.

But when an individual creator—whether amateur or professional—makes use of a work belonging to another individual creator, the possibility always exists that neither party quite knows where they stand legally, which can make DMCA appear rather confusing and spooky, depending on which end of a notice one happens to be on. This is one reason why some of the headline abuses of takedown procedure—the ones typically highlighted by copyright critics—can foster a general worry that DMCA is just a mechanism for censorship. But even in public statements and court filings by internet industry representatives, DMCA takedown abuse cases are cited in the hundreds—sometimes on a worldwide scale—relative to the 100-millionth-takedown-notice milestone, which Google alone reached in 2014. A ratio of less than 1%.

Still, among individuals and small entities, either a takedown notice or a counter-notice can be sent in error, even if the sender states he/she has made a good faith effort to understand the validity of a claim.  But the point I want to emphasize is that the general perception that a DMCA takedown notice is the final word (i.e. lacks due process) is actually a reversal of how the process works.  In fact, as I’ll expand upon with the anecdote to follow, it is the counter notice that is technically the final word within DMCA’s limited mechanisms. After that, if the copyright holder wants a file removed, and the uploader will not cooperate, the copyright holder’s only recourse is a court order pending litigation for copyright infringement presented to the ISP within 10 days of the filing of a counter notice.  So, it is not remotely accurate to describe DMCA as a tool for takedown without due process.  For a more detailed explanation of DMCA mechanisms, read Stephen Carlisle’s article from 2014.

How artist Michelle Shocked’s generosity is being abused by DMCA provisions. And why it matters.

A common category of video on YouTube is the musical cover.  People share these all the time, especially when the video features some adorable kid who’s killing it with her rendition of a popular song.  That most of these videos, which make use of copyrighted works, are not removed from YouTube may be attributed to one of three common factors:  1) that in 2013, YouTube entered into blanket licensing agreements with the major publishers on a vast library of popular music; or 2) that many rights holders of these works are somewhat ambivalent about these incidental uses and/or find the process of takedown too burdensome; or 3) that many rights holders actually enjoy these covers very much and are generally happy to see their work shared in this manner. When conflicts do arise, they tend to be fairly specific, pertaining to some distinct concern on the part of the independent creator who owns his/her copyrights and would, therefore, not be bound or covered by the aforementioned blanket license agreements.

One such artist is the singer/songwriter Michelle Shocked, who has been an adamant crusader on behalf of artists’ rights and is a regular follower of this blog. As serious as she is about protecting copyrights, she also happens to be totally cool with unlicensed YouTube video covers of her songs, as long as the user respects two simple conditions.  The first is that the video not be monetized with advertising because Shocked doesn’t want Google to earn revenue from her work without an agreement. In fact, because of her views on artists’ rights, she works to keep her own live and recorded performances off YouTube even though she is happy to let others publicly perform her songs on the platform.  The second condition is that Shocked prefers that her name not appear in the video file title, but rather in the description crediting her as songwriter/composer. The reasons for this are myriad with regard to maintaining some control over search results (and even monetization) of her name, but suffice to say, it’s her prerogative and an easy enough condition to respect.

So, in the utopian narrative of sharing and remixing and diffusion of culture and ideas—and all that feel-good stuff—Shocked’s two minor conditions for performing her songs without a license in YouTube videos seem both reasonable and entirely consistent with those high-minded aspirations of creativity in the digital-age people keep talking about. Fundamentally, she’s not asking for much effort beyond a little common courtesy, which one would think is also consistent with sharing and caring and so on. In fact, Shocked has had numerous cordial exchanges with online performers of her songs, thanking them for the cover but asking them politely to remove her name from the title. And until recently, all have been happy to comply, grateful to have a friendly exchange with the songwriter.

But this was not the case for one YouTuber, Steve Pierce, who uploaded a video of himself playing Shocked’s song “Memories of East Texas” and used her name in the main title of the video file.  As usual, her first response was to write Pierce, thank him for his “beautiful cover” of her song, and to ask that he kindly remove her name from the title and instead use it in the description.  After some time without a response from him, and seeing no change to the file name, Shocked sent a takedown notice using DMCA procedures and subsequently received notice from YouTube that Pierce filed a counter notice in which he stated his opinion that his video cover performance constitutes a “fair use.”  Now, we have a ballgame, and here’s why:*

In a hypothetical lawsuit, a court would almost certainly deny a fair use defense for an individual’s unlicensed video recording and public distribution of a cover song, as this would appear to effectively throw out the purpose of both the mechanical and public performance rights altogether. My point is not, however, to play amateur legal soothsayer about a hypothetical case but rather to note that Pierce’s invocation of the words “fair use”—for a use otherwise covered by a specific type of compulsory license—seems to be a common habit among non-attorneys of late. But “fair use” is not a magical incantation that will automatically ward off all infringement claims.  In reality, Pierce’s use is not “fair” but instead has been made conditionally available to him by permission of the author. And because he chooses to not respect one of those conditions, the point I’m stressing here is that Shocked is actually quite limited by the mechanisms in DMCA.  Her only recourse is to litigate or let it go.

Because Michelle Shocked owns all her copyrights and has no agreements with YouTube—and because Pierce’s fair use defense would very likely be denied—her claim should theoretically be quite solid.  But the merits of a hypothetical case are secondary to the fact that she never wanted to sue anybody in the first place.  It’s a pain in the butt and very expensive to sue people in federal court. Plus, she has no problem with the content of the video itself, only with the use of her name in the title. So, maybe you’re thinking, “Big deal. So he used her name. Let it go.” In practical terms, perhaps, but in principle not necessarily.

Shocked’s story provides an instructive example of the functional weakness in DMCA for the individual rights holder. And this is why it’s infuriating to independent creators in particular to hear the repeated theme that DMCA is just a big, digital eraser used to summarily remove content from the Web without recourse.  Exactly the opposite is true; DMCA is largely a voluntary mechanism in which the individual creator asks, “Please remove this,” and a perfectly legal response may be, “No. And you can sue me if you don’t like it.”

Moreover, under these circumstances, what is really stopping this user, and therefore YouTube, from ignoring Shocked’s first condition that videos of her works not be monetized by advertising?  Certainly nothing within the scope of the DMCA.  In theory, this would mean that Google could get away with generating revenue from this use despite the artist’s desire to generously share her work with people in a non-commercial context. This is a hypothetical projection in this case, of course, but not if we look more broadly at the ebb and flow of infringements on the YouTube platform over time.  In fact, Google’s monetizing the infringing material its users upload and re-upload is the crux of rights holders’ conflicts with that company; and the neutrality it asserts while earning billions of ad-revenue dollars is one reason many see flaws in the safe harbor provisions of DMCA.

Understanding what DMCA is and how it really works is important, if people really want to claim that they care about the artist and culture more than the big corporation.  In the end, Steve Pierce’s cover song will probably not be heard by millions—or even likely thousands—of listeners; and the video itself will remain one relatively innocuous clip in a sea of billions.  But if we multiply Michelle Shocked’s experience by thousands of independent, fledgling new artists out there, it’s not difficult to see how perpetuating the myth that DMCA skews in favor of rights holders can result in one or two dominant Internet platforms dictating terms to creators in the long run.

*Mr. Pierce’s name was originally misidentified as Martin DX1KAE, which is the type of guitar he’s playing and not his YouTube handle.  See comments from Mr. Pierce in response to this article.

Music on the Campaign Trail

In the Fall of 1977, just weeks before gay rights activist Harvey Milk won a seat on the San Francisco Board of Supervisors, the English rock band Queen released the album News of the World. The LP included a short, heavily-rhythmic single called “We Will Rock You”, which typically segues into the anthemic “We Are the Champions”. Written by Queen’s lead guitarist Brian May, “We Will Rock You” was recorded in an abandoned church in north London because the band liked the acoustics. And as Seth Wickersham, writing for ESPN reports, “For weeks, Mercury and May took turns stomping on old pews and clapping, until they got the right sound.”

Nearly four decades later, “We Will Rock You” remains the number one track played at American sporting events—a fact that has intrigued me as much as I imagine it’s made a few structural engineers nervous since the trend began. Forgive the generalized stereotype implicit in this observation, but to watch, for instance, forty thousand Dallas Cowboys fans sing along with gay Freddie Mercury in virile support of their football team is  exactly the kind of cultural counterpoint I appreciate when it happens. The song was literally born in a church; it was sung by an incredible artist whose identity was at least somewhat restrained by the semi-tolerant limbo of homosexuality through the 1980s and the AIDS crisis; and then it became the Sunday hymnal of some of the most mainstream and socially conservative Americans, all rallied into chorus by May’s thump-thump-clap rhythm.

The fact that the verses of “We Will Rock You” are about loss and futility only adds another layer of irony to its role in sports fandom; but this is generally what we make of music anyway. The chorus and the rhythm fit our moods of triumph, sorrow, defiance, momentum, heartbreak, and so on, even if the lyrics and melody tell a very different story. And this relationship to music often comes into sharp relief when political candidates use a popular song—almost always because of the chorus—at campaign events.

In particular, when candidates represent or evangelize a point of view that is anathema to the authors’ beliefs—or even in direct opposition to what a song itself might be about—it has lately become a regular feature of our politics to hear of artists either asking or demanding that politicians not use their works. These stories, of course, lead to all manner of confusion about copyright, fair use, and the control an artist may or may not exert in these contexts. In most cases, people seem to side with artists, which is certainly encouraging, though hatred of a political candidate and love of a musician isn’t necessarily the clearest lens through which one might view these conflicts.

When Neil Young demanded that Donald Trump stop using his song “Rockin’ in the Free World” at campaign events, fans praised Young, though it’s not clear that he was on solid legal ground at the time. In general, a campaign is covered as long as the venue or the campaign itself has paid fees to Performing Rights Organization (PRO) like ASCAP, BMI, or SESAC (or all three) to license the use of nearly any song for public performance. The campaign has a responsibility to ensure the venue has these licenses (or to get its own), but as long as the PROs are covered, the artists and songwriters generally have no say, from a legal perspective, about the context in which their songs may be used at live events.

Artists may certainly ask a political candidate not to use a song, and they are free to publicly criticize the use as much as they want, but they can’t rely on copyright law to stop a politician from making this kind of use if the licenses are up to date. In another context, however, if a candidate makes repeated use of a song to the extent that it starts to become his/her theme music, the artist may see this as unlicensed endorsement and seek to enforce his/her right of publicity in order to stop the use. I’m not sure what the legal facts were in the Trump/Young kerfuffle; I’m guessing the campaign was most likely in the clear but decided to let the song go rather than allow a public fight with Neil Young to distract from its core message at the time of hating on Mexicans. One must prioritize.

Mike Huckabee Uses Eye of the Tiger at Kentucky Rally

In a different—and slightly bizarre—circumstance, the organization Huckabee for President, Inc. is facing a lawsuit by publisher Rude Music for copyright infringement stemming from a public performance of the song “Eye of the Tiger”, co-authored by Rude Music’s owner Frank Sullivan for the 1982 motion picture Rocky III. Approximately one quarter of the four-minute song was played outdoors at a rally in Grayson, KY on September 8, 2015 immediately after candidate Huckabee introduced Kim Davis to the podium following her release from the Carter County Detention Center, where she had been jailed for her refusal to issue marriage licenses to same-sex couples. It’s a safe bet the county jail hadn’t paid any PRO licenses as they probably don’t host a lot of parties or other events requiring music. Ostensibly, this suggests the Huckabee campaign messed up in one way or another, and the defense presented in their case seems a little odd.

The attorney for Huckabee has presented affirmative fair use defenses addressing all four factors, including a less-frequently-cited exception for use of music at a religious assembly. In fact, the defense states that the candidate was only in attendance as an evangelical Christian in support of a rally called the “We Stand With God Pro Family Rally”, organized by a religious group and not the Huckabee campaign. What seems odd to me, though—and speaking as a layman of course—is that the foundation of Huckabee’s defense would appear to be that the Grayson event simply was not his show—that their operatives did not publicly perform “Eye of the Tiger” as part of the Huckabee for President campaign. And the reason I say this is odd is that if this fact can be proven—or cannot be disproven—then the fair use defenses presented would be moot.  If Huckabee for President, Inc. did not publicly perform the song, then it cannot have infringed, which begs the question of offering any fair use defenses at all. If a use by a defendant does not exist, then there is no question of fairness to be judged.

So, the defense of religious assembly is irrelevant if it was not Huckabee’s assembly; and if it was in any way his assembly, he will have to prove that it was a purely religious gathering having nothing to do with the campaign. How he might hope to make that distinction, particularly when Mike Huckabee barely recognizes a separation between church and state, would appear to require a rather fine legal scalpel.

In particular, as mentioned, the candidate introduced Kim Davis to the stage and then somebody pushed Play on “Eye of the Tiger”; so even if this coordinated bit of theater came together impromptu, it looks an awful lot like the event became a Huckabee for President moment, regardless of whether it began as a religious assembly. One way or another—whether professionally planned or divinely arranged—candidate Huckabee certainly ended up with a neatly choreographed moment—shared via amateur video online—in which Davis joins him at the podium to the beat and triumphant lyrics of Sullivan’s famous comeback song. The fact that this particular visual is just one of many reasons Mike Huckabee will never be president has of course no bearing on the infringement case.

As our politics have become more divisive, and side-show happenings can gain wider exposure than in pre-Internet years, politicians’ use of popular music is likely to produce more frequent points of contention for both artists and their fans. And, as I say, while the particulars of these cases often sow confusion about copyright and its limitations, the emotional response is anything but irrelevant. That bile-in-the-throat feeling one might get if Donald Trump played Bowie’s “Heroes” at a campaign rally is neither petty nor dismissible. Because music is more powerful than either the smartest or the dumbest thing any political figure has ever said. It is simultaneously more primal and more enlightened. It’s why Brian May’s rhythm can induce Pavlovian harmony among millions of sports fans, who in another context might have righteously trampled Freddie Mercury’s civil rights. Maybe music for politicians should come with a label:  WARNING. CONTENTS MAY ROCK YOU. USE WITH CAUTION.