Category: Copyright

NMPA Targets Top 50 Illegal Lyrics Sites

Last week, the National Music Publishers Association put the top 50 unlicensed lyrics websites on notice.  President of the NMPA David Isrealite had a simple message to these top infringers:  “Get licensed, get offline, or get sued.”  And with two recent judgments in its favor, Isrealite has little doubt his organization would prevail in its pursuit of these cases.  Identifying who the top 50 illegal lyrics sites are is the result of work led by David Lowery at the University of Georgia, where he is a professor. (Note: Link to study contains the list of these top 50 sites.)  Known principally as the leader of bands Cracker and Camper Van Beethoven, Lowery’s background is actually in mathematics, and he collaborated in developing an algorithm to identify these top 50 sites.  At the head of the list is RapGenius.com.

Lyrics sites make an interesting subject in that, if licensed, they adequately fulfill many of the purported virtues of the internet.  When the licenses are paid, all three parties in the arrangement benefit; the publishers (artists) are compensated, the user gets a free information resource, and the site owner can sell ads against the traffic he generates.  Contrarily, the unlicensed lyric site represents the end of civilization as we know it.  These sites serve nobody other than a handful of poachers using SEO to generate free money for themselves.  There’s no innovation, no job creation, no benefit for the original content creators; and there is no end of legal, easily-found alternatives for the user who wants to look up lyrics.  In fact, depending on what lyrics you type into a Google search, all of the first twenty or so results could well be licensed sites.  I happen to think a songwriter’s or a band’s website ought to be in the top search results, but that’s another conversation.  To allow unlicensed lyric sites to continue to operate is tantamount to saying, “Yes, the Internet we want is a place where muggers, thieves, and bottom-feeders are allowed to thrive.”

Unfortunately, where there’s money to be made, there’s always someone eager to normalize what is essentially a sleazy, back-alley hustle and call it business.  In this case think Mark Andreeson’s VC fund putting $15 million into the aforementioned RapGenius quite recently.  Anyone who claims that piracy is merely a reaction to the producing industries’ failure to adapt, and who wants to maintain a semblance of integrity, should champion the NMPA’s declaration in this case and call the Andreeson VC funding out for the kind of grotesque mockery of capitalism that it is.  There is no difference between knowingly profiting off the mortgage-backed securities scam and knowingly profiting off the exploitation of songwriters or textile workers or farmers or anyone else who’s getting hosed.  And in this case, it’s in the service of a website that offers the public nothing they can’t get elsewhere and for free!  What we do by choosing to allow this is to say that the world belongs to the biggest bullies, in this case using code and basic marketing as weapons.  And the reason I think it’s a big deal is that it goes right to the heart of how we hope to shape the future of society in concert with these technologies.

When it comes to post-apocalyptic fiction, we typically see one of two future worlds.  In the brutal dystopia, we find a barren and wild landscape where all social order has broken down, and most of what was once humanity has regressed into some primitive form depicted as any of the following:  cannibals, mutants, neo-religious psychos, cyborgs, homicidal gangs with colorful mohawks.  In the ontological dystopia, social order still exists with the masses comfortably ensconced in some gleaming edifice, blissfully ignorant that they are prisoners of a state where government has merged with some ultra-pervasive corporation monitoring and controlling their every move.  In either scenario, the heroes typically represent the last remaining seeds of real humanity, and the plot recreates the Moses saga concluding with the hero leading some portion of human refugees in Exodus toward a new dawn.  Music swells. Roll credits.

In considering the matter at hand through the lens of this metaphor, the unlicensed lyric site owners and their VCs are the barbarians who have abandoned social order and who feed off the defenseless in the wild landscape of cyberspace.  But there is also an element of the ontological dystopia inherent in this thought exercise, and that’s where the major corporate leaders of the internet industry tell the citizenry living in blissful ignorance, “Take the candy (lyrics). It’s free. We’ve provided it for you.” And the public is mollified by this until discovering all too late that it isn’t just songwriters whose labor can be exploited in this manner.

In his recent article about metadata in The Atlantic, technologist Jaron Lanier writes the following: “Metadata is a slow, relentless concentrator of wealth and power for those who run the computers best able to calculate with it.”  This is a profound statement in a world that includes a very real, very powerful, monopolistic, and even secretive company called Google. But as a general principle, if I take Lanier’s meaning correctly, he’s describing a world in which those who wield computing power, and only computing power, will own, will lead, and will decide. Either we say no to normalizing exploitation of all labor or we start getting fitted for colorful jumpsuits.

“More YouTube’s” My Foot

First of all, name if you can the serious competitors of any of the following: Facebook, YouTube, Amazon, eBay, Twitter, Google.

Go back ten years, name the biggest sites on the web, and you might notice that some of those names are either gone or really quite small compared to the dominant sites today. It isn’t even necessarily sinister, but it is a fact that the Web doesn’t tend to foster competition so much as it fosters monopolies — some short-term, others long-term.  In the potentially short-term monopoly category, we might look at Facebook’s current dominance and recognize that the company could make a misstep that turns us all off (or we could just get bored), and the site would evaporate into MySpace obscurity.  In the long-term category of web-based monopolies, we look at an Amazon and understand that its elaborate and capital-intensive fulfillment system would be very hard to replicate or beat rapidly enough to realistically grab much of its market-share.  And then, we look at a YouTube, which is somewhere between a Facebook and an Amazon inasmuch as there are other video hosting options but none that are owned by the company that also owns (i.e. controls) more than 90% of search worldwide. So, if you want to use video to promote yourself, your business, your ideas, your work, or even your shaking booty, YouTube is really your only option. And Google likes it that way.  What company wouldn’t?

Still, mere market dominance and unlimited wealth isn’t enough for some people; they want your soul, and they’ll tell you any lie in order to get it.  For instance, I offer this brief article about a panel discussion called Expand NY on which some of the usual suspects sat agreeing with one another about the future of copyright, all predicated on the assumption that copyright is just one legal framework that remains an out-of-date barrier to future economic growth in the digital age.  But even if you don’t give a damn about copyright, pay attention, because like I say, these people want your soul, by which I mean to argue that companies like Google ultimately want a world where people no longer believe they have a right to privacy or a right to control how their words or images are used.  The war against copyright should be viewed by the general public as the precedent-setting, legal groundwork for a world in which certain civil rights simply cease to exist.  And when your kids’ birthday video can be used to sell McDonalds without your permission, you might find the expression “steal your soul” is no exaggeration.

But what does that have to do with the panel discussion in New York? If a premise is false, the conclusion is also false. And the reason I draw attention to this discussion is not to argue about its conclusions — that copyright may or may not need updating — but that people with false, even dangerous, premises have no business in the debate. The premise being put forth is that a framework like copyright is stifling economic potential in the digital age, but the reason we can know this is a false premise — other than the 20 years of history — is that Julie Samuels of the Electronic Frontier Foundation says it’s a false premise when she overreaches with a really big and tactically dumb lie.  At the bottom of the article, Samuels is quoted as saying, “We want a thousand more YouTubes,” and this is meant to be an example of that as-yet untapped potential growth supposedly being stymied by pesky copyrights.  But who is it that wants a thousand more YouTubes?  Google certainly does not, and anyone who believes otherwise is a sucker.

So, if by “we,” Samuels presumes to mean “we the people,” then we the people can do the math and see that there will never be so many as three more YouTubes in a world where there remains only one Google encoding the fate of all Internet search. At a certain point, the cost of entry for a presumptive competitor is too high for the same reason you’d be hard-pressed to replicate what Amazon does. And that financial threshold was crossed a long time ago. As Google now earns an estimated $52 billion in annual revenue, I double-dog dare anyone to approach a VC with a business plan to be the “next YouTube.” Copyright may indeed be due for review and even revision to reflect new technological realities, and I certainly agree with one point made by panelist Mike Masnick, that copyright review could be “good or bad depending on who’s involved.” So, if he and his colleagues would stop promoting utter bullshit, maybe responsible review can proceed.

Lessig Mixes it Up

Attorney and legal scholar Lawrence Lessig considers the current copyright system to be generally antagonistic to contemporary culture.  In fact, any number of common assertions about copyright’s supposed obsolescence in the digital age are very likely derivative of something written or said by Lessig, who has devoted a fair amount of energy promoting the value of the remix.  In at least two video versions of this talk, he prefaces the subject by quoting John Philip Sousa, who in 1906 decried the new “talking machines” thus:

“When I was a boy … in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today, you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

You might expect this quote to be used as a segue to criticism of anachronistic fears of new technology — like Jack Valenti’s infamous exaggeration about the VCR as a “Boston Strangler” — and in fact this Sousa quote has been referenced by scholars and technology advocates in this context.  But in this case, Lessig cites the composer for a very different purpose, which is to tee up his audience for a chat about rediscovering what he calls “read/write culture.”  In essence, Lessig claims a kinship with Sousa, pining for the days when people sang (i.e. shared) songs with one another through the nexus of their front porches.  Thus grounding viewers in this nostalgic idyll, Lessig then proposes the reasonable enough notion that YouTube (or any social media) is the new front porch of our digital times. This, he tells us, is how “the kids” are sharing the songs of the day — through mashups, through bedroom performances, through remix in many forms — and it is, therefore, wrong to criminalize “the kids” for engaging in a new variation of a bygone pastime.  And by “criminalize” of course he means enforcing copyrights through takedowns, C&D letters, or even lawsuits.

Now, Mr. Lessig is a controversial figure among those who care about artists’ rights and digital culture, but he is also a highly qualified legal scholar, and I would not presume to question his knowledge of the law itself.  I leave such criticism (and there is plenty) to Mr. Lessig’s peers.  But I do know a sales pitch when I hear one, and I certainly have a bone or two to pick with what Mr. Lessig appears to be selling.

Right off the bat, he takes Sousa’s concern for the American vocal cord entirely out of context, omitting the fact that these words were uttered as a preamble to testimony before Congress in favor of stronger copyright laws.  Specifically, Sousa hoped copyright would expand to protect sound recordings, which didn’t happen for another seventy years.  Regardless, even cherry picking the sentiment, I’ll buy Lessig’s comparison between the porch of yesteryear and the virtual porch of today, but I have to stop myself from being sucked too deeply into the metaphor when I realize he’s constructing a straw man.  Or in this case, straw kids.

As Lessig is free to generalize in his talk — to gloss over the case-by-case realities of various infringements, fair uses, takedowns, or suits — I’ll claim the same privilege and generalize that very few rights holders are in any way interested in “criminalizing” the kind of remixing that could arguably compare to the social celebration evoked in Sousa’s yearning plea. In fact, here’s a video of some ladies singing just one of the songs of the day (the mid 80s anyway) on both a virtual and literal front stoop just as JP Sousa would supposedly have it.

This ukelele trio that calls itself No Skanks On Sunday offers a charming rendition of “Take the Skinheads Bowling,” written and originally performed by David Lowery’s band Camper Van Beethoven.  And you know who’s just fine with this video remaining on YouTube?  David Lowery and Camper Van Beethoven.  That’s the same David Lowery who, through guest appearances and his blog The Trichordist, has become one of the most outspoken opponents of piracy and other forms of mass digital infringement. But when I asked him about this video, his response was, “Yeah, we don’t care about that stuff.”  And I’ll bet my paycheck against Lessig’s that the majority of rights holders feel the same way about this kind of use.  So, if we’re going to generalize, I think it’s accurate to say that remix culture, for better or worse, is doing just fine and that the number of wrongful, mean-spirited, or aggressive takedowns represent the exception rather than the rule.  So, while I don’t know the law well enough to tangle with Lawrence Lessig, I see little evidence of rampant “criminalization of the kids,” which makes me wonder if Lessig is really concerned with defending culture, or is he concerned with selling books and making a career out of addressing a problem that isn’t a real problem?

Meanwhile, what is certainly offensive to artists and bad for culture at the same time is what happens when one types “Take the Skinheads Bowling,” or just about any other song title, into a search engine. We’re supposed to be 20 years into “the information age,” but good information is actually becoming harder to find if search is the tool being used.  The top results will be a handful of YouTube videos of CVB playing their song, none of which are by permission; then the obligatory Wikipedia entry, which is an okay first source but requires fact-checking; then there’s a smattering of unlicensed lyric sites selling ads and only sometimes crediting the songwriters; and then we get into torrents and other means of downloading unlicensed versions of the song itself.  Nearly all of this activity directs money into Google’s coffers, and neither the band nor the public is particularly well served if the initial search began with “What’s that song? Whose is it? I want to know more?” For all the noise about “connecting with fans,” search is actually a wonderful way to disconnect works from their authors and to hijack potential fans away from patronizing the artists themselves. I think we all have a bit of ADD on the web; we set out looking for something and can be easily distracted by the offerings in the top results.  Think Google doesn’t know this?

I remain confused as to why a band’s official website is not among the top results when one types in famous lyrics or song tiles; and I know what SEO is, but if cultural diffusion is the goal, shouldn’t the digital-age version of the album cover be among the first  sources discovered by someone searching a song?  CVB’s site offers lyrics, notes, guitar tabs (all free); and the user just might, I don’t know, learn something about the band and discover more tunes he or she likes.  That’s connecting with fans; but the company that owns the only search engine to speak of and the only ad server to speak of doesn’t really support traffic directed in this way.

So, as a legal layman but active observer of these things, it seems to me Mr. Lessig’s presentation, though charming, contains at least two fallacious premises.  The first is that the positive aspects of remix culture are actually threatened by the copyright system; and the second is that remix culture is universally positive.  I don’t know of any cases in which rights holders are stopping “the kids” from singing the songs of the day on YouTube.  But there are plenty of cases in which adults are profiting from remixing culture in ways that benefit neither fans nor creators. While it’s almost rote these days to call everyone a shill, I don’t think this is very helpful. I prefer to assume intelligent people mean what they say and believe in their positions, and Lawrence Lessig is certainly an intelligent man.  Of course, that might be why his ideas are ultimately so dangerous.