Category: Intellectual Property

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.

Hollywood should just…

In 1982, then president of the MPAA Jack Valenti said something really stupid; and today, pro-piracy pundits, some who weren’t even alive in 1982, rely heavily on the late man’s hyperbole to drive a wedge between creators and fans.  Valenti said in testimony before Congress, “The VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” It is clearly ridiculous to compare a machine that records and plays video tape to a serial killer, so Jack really left those of us who care about creator rights holding the PR bag with his choice of words.  But the real reason this quote is usually trotted out, as it is here in this piece from MIT Technology Review, is that Valenti was ostensibly wrong — that the VCR did not harm, and might even have helped, the motion picture business. This half-true assessment is then used as a segue to assert that piracy is the same thing, that Hollywood should just embrace yet another phase in technological evolution, adapt to it, and reap the benefits.

The fear that the somewhat cumbersome and visually unappealing VHS recorder would threaten the profitable distribution of mainstream motion pictures and television was clearly a misjudgment; but the error is a common one that occurs when just about anybody attempts to predict future human behavior based on the availability of a new technology. The earliest predictions of a “paperless society” as we all got online were soon punctuated by a substantial increase in printing. Likewise, VHS proved to be an opportunity as a new line of distribution rather than a threat as a means of amateur reproduction.

While tech-industry pundits and academics sneer at Valenti, they simultaneously presume to dabble in the same kind of prophecy, albeit regarding a technology and kind of consumerism that bears no resemblance to the era of the VCR, and about which we have more than a decade’s worth of evidence of its negative effects on the music industry. The prognostication is inherent in a worn-out refrain paraphrased thus: “The (blank) industry could make media piracy irrelevant if it simply made content more affordably and more flexibly available worldwide.”  And in a recent spate of scribblings, that blank is filled with the word Hollywood. Aside from the fact that the assertion sounds sillier every day against a backdrop of rapidly growing, legal distribution models, it also happens to be fundamentally obnoxious.

On the purely practical and realistic side, we have the final episode of Breaking Bad, which is reported to have been downloaded illegally about three million times. This is a head-scratcher for a show that is available for streaming via Netflix, which costs .26 cents a day.  But even if that were not possible, even if the filmed entertainment business were not very rapidly transforming to achieve symbiosis with viewer habits, there is something very negative about the cultural attitude fostered by these editorials and white papers; and this is that the oft-repeated imperative that creators must accept and adapt contains an implication that people have a right to entertainment.

Absent a social contract that governs transactional relationships, we don’t have a right to a damn thing.  I’m in the camp that believes every citizen in my country has a right to healthcare, but not to the extent that we can compel medical professionals to provide that care if we cannot also maintain a system that compensates them for their labor and expertise.  So, unless we’re envisioning a world in which very talented slaves are forced to make music, write books, or produce motion pictures, there is no humane way to insist that any creator or group of creators must furnish their products on demand, according to our whims and/or for free.

If I were to call up a contemporary author I like, let’s take Audrey Niffenegger who wrote The Time Traveler’s Wife, and say, “Audrey, I hear you’re writing a new novel.  I really love your work.  How about sending me the first fifty or so pages so I can check ‘em out and share them online on my blog?” When she refuses, shall I say that she’s not keeping up with technological reality?  That it costs her nothing to send me her pages digitally?  That I’m a really big fan and will promote her work through social media? In such a scenario, I’d deservedly find myself on the receiving end of a restraining order, but this kind of behavior is more or less what the pro-piracy crowd have been preaching to a whole generation of viewers and fans.

If a lone creator like an author has the right to distribute a work when she’s good and ready, and by whatever channels she chooses, then the same right applies to a limited group of creators, as in the case of those who make filmed entertainment. It’s too easy to lump all motion picture endeavors into a single entity called Hollywood, and then propose what that single entity ought to with itself.  And, of course, “Hollywood” has nothing to do per se with the diversity of films and shows out there, or with the ways in which these projects are produced or distributed.  Yet, no matter what methods apply, whether it’s a $100 million investment in a blockbuster or a $10,000 crowd-funded little movie, nobody has the right to say, “Give it to us now, or we’re just going to steal it.” More to the point, it is still possible that the long-term result of this attitude will be an even more rapid decline in professional film production than we have seen in music.  I say this because the bottom line is that the most popular programs and films are, not surprisingly, the most popular to download illegally; and these films and shows are bloody expensive to make.

Of course, underlying these assertions by piracy’s advocates are buzz-worthy, anecdotal observations by show creators and show-runners that illegal downloading has been beneficial to their programs, at least with regard to promotion.  This includes, most recently Vince Gilligan, creator of Breaking Bad, who admits piracy has helped attract new fans to the series itself, and this echoes previously publicized sentiments from executives working on HBO’s Game of Thrones.  I think it goes without saying that free access to programs will spawn new fans and generate more buzz, but whether or not this will translate into supporting models that will sustain production of these shows is far from certain.  If the music industry is any indication, the answer is it won’t be pretty.  Meanwhile, as posted on this blog, a September study of the wealthiest regions of the world shows that piracy has only increased in concert with the availability of affordable, streaming options.  This suggests to me that there is a cultural factor at play, that there exists a sense of entitlement, a perceived right to entertainment.  And since we’re mucking about with predictions, I’m going to predict that no good can come of that conviction.