Choice Words & The Right to Choose

Photo by David Crockett

Photo by David Crockett

Announcement of the Copyright Alert System just over a week ago brought some new readers to this blog, and among these was one who was offended by this post, which is coincidentally the most-read to date.  My use of the word slavery in context to BitTorrent sites exploiting labor inspired the reader to call me a racist. You can decide for yourself whether the accusation is fair, but the subsequent exchange of comments did leave me thinking about the word slave, which made me think of Prince, who performed in 1993 on Late Show with David Letterman with that very word inscribed on his face. [Date and show name corrected from original post thanks to comment from a regular reader.]

Prince is an unqualified musical genius, and in the tradition of geniuses, he has been as provocative in managing his career as he is with the production of music itself.  It occurs to me, though, that this particular artist also unwittingly personifies so many of the emotional and functional complexities in the business of making and selling music in the digital age.

Presently, the 1984 hit song “Let’s Go Crazy” is at the heart of an ongoing case, Lenz v UMG, brought by the Electronic Frontier Foundation in 2010. The case involves a DMCA takedown of a home video from YouTube depicting a baby dancing in a kitchen while Prince’s song plays on the radio in the background.  The short story is that the video was taken down in error and then restored, which is pretty much how DMCA is meant to work, but of course the video and Mrs. Lenz’s temporary inconvenience aren’t really the point. See Terry Hart’s analysis from August of 2010.

Interestingly, the CAS bump in readership here also brought a new reader/commenter with whom I had discussion about the altruism (or not) of organizations like EFF; and Lenz makes a pretty good example of what looks to me like a group of lawyers making much ado about nothing while hiding a rather large axe to grind.  The general public gets the easily digestible image “Prince sues mother and baby,” even though the suit was brought by Lenz and the EFF.  But the aura of Prince provides good cover for the real motive in this case, which is that the EFF is seeking a ruling that UMG willfully issued takedowns to non-infringing material (because honest mistakes are not grounds for a suit) in order to establish a precedent that would place a higher burden on creators seeking to protect their works online.  Writes attorney Luke Platzer in this guest post at Copyright Alliance:

“…the expansion of the 512(f) standard to challenge the reliability of copyright owners’ takedown processes — thereby forcing copyright owners to use more precise, but potentially much slower processes — appears to have been at least in part EFF’s goal in bringing the Lenz case.”

If you read the recent article in the Wall Street Journal about NBCUniversal’s counter-piracy efforts which can hardly keep up with its notice and takedown process, you might understand why many independent content owners have given up hope of protecting their work online; but by bringing the case in Lenz, the EFF would like to make that process even harder. In fact, cases like this aren’t about the work, they aren’t about the artist, they aren’t about free speech, and they aren’t even about fair use.  They’re about ivory-tower academics making a career out of fighting a problem that doesn’t exist. To paraphrase Hart, DMCA was 12 years old when the case began, and this relatively benign and temporary video takedown was the best example they had to reflect a supposedly comprehensive threat to free speech and democracy.  In fact, the recent misuse of DMCA by NASCAR to remove footage of a crash from YouTube makes a much better example than Lenz, but  Lenz  is already underway.  Still, the fact that Prince is the face of this story is somewhat paradoxical, although not necessarily incongruous, if we understand the mind of the artist.

Where this stuff gets a little complicated for the casual observer is that Prince is in fact an ardent — some might even say obsessive — protector of his rights on the Internet. He has gone to great length and expense to control where and how his work is used but has never, to my knowledge, filed suit against an individual user or fan for infringement. For anyone who thinks copyright is just about money, consider the likelihood, that it costs Prince more to pursue these actions than it is probably worth on the balance sheet. So why does he do it?  I don’t know the man, but I’m going to guess that it’s the same passion that drove him to the performance he gave in 1993 on Letterman.  It is one of the few live TV acts I’ll never forget because it was so strange — this virtuoso guitarist playing as though wrapped in a straight jacket, and scrawled on the side of his face in what looked like black marker, letters organized vaguely into a guitar shape akin to the glyph that would become his temporary moniker, the word — SLAVE.

I do find it fascinating that the same musician who has been unfairly tarred in the Lenz case is the one who can reasonably be described as our generation’s poster child of the artist bucking against his corporate “gatekeepers,” for those who would use that term. In fact, Prince’s frustration with Warner Music back then had nothing to do with money per se, but with the label’s reluctance to release his new album Gold over concerns of “saturating the market.”  Restraining an artist is a difficult thing, and I can only imagine doing so with Prince would be like trying to lasso a stallion with a length of yarn.  Yet even in the years subsequent to these events, even with all the resources at his disposal, Prince has not thoroughly embraced the so-called “permissionless culture” promoted by legal scholars, who perhaps don’t actually understand artists.  Some will assume the motive here is greed, although I would argue that this assumption is likely a misunderstanding of Prince in particular and many artists in general.  What those who don’t create art fail to grasp is that controlling distribution is often a component of the work itself.  This is why an artist as passionate, as obsessive, as prolific, and as influential as Prince will naturally rebel against both a Warner Music holding him back and a Google exploiting his work. And, yes, either form of restraint on his choices can make the artist feel like a slave.

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  • I believe the Prince performance on Letterman was from 1993. Other than that, spot on.

    • Thanks, Monkey. You may be right. I found references to 1992, but it could have been ’93. Sometimes hard to find corroborating data on the Web, you know. 🙂

      • I’m a rabid fan of both Prince and Letterman, so I clearly remember it was the Late Show, not Late Night, and Prince had done the symbol thing in the summer of 1993.

      • Of course. It was Late Show back then! I’ll correct the post. Thanks!

  • I take photos of insects and items of historical interest. I have a flickr account with some 7000 images, and a website with some 4000 pages documenting the images. All is released under a CC-NC license simply to control the commercialisation of the images. Bloggers, individuals, and those doing research are perfectly welcome to use as they see fit. Those that have a commercial interest just need to ask and in most cases will get an OK. It has nothing to do with money, the commercial sale of a photo wouldn’t cover the travel expense to take it, let alone the time to take the image, to process it, to document it and make it available on the web. The concern is purely over which organisations get use the images commercially.

  • Long time reader, first time commentator etc. In terms of
    the “racism” allegations, you quite obviously weren’t using the
    term in a racist way. There are some arguments that disputing them
    at all gives them a seriousness they don’t deserve. I’d suggest
    this is one of those. (The etymology geek in me would also point
    out that the term “slave” dates back to the late 13th century and
    has roots from before that all the way back to Medieval Latin. It’s
    a perfectly standard word). I would see both you and Prince as
    using the word as a rhetorical device. There’s nothing wrong with
    that; you were writing a blog post, not an academic thesis. Whether
    it’s useful for moving the debate forward is more arguable, but not
    everything has to follow formal debating rules. On the main
    arguments in the post:, I’m from the UK, so I’m coming at this from
    the perspective of an interesting outsider (obviously, we’re having
    a lot of the same discussions here as you are in the US), so some
    thoughts. The general public gets the easily digestible
    image “Prince sues mother and baby,”
    Well, yes. What
    precisely were UMG’s PR department doing when this decision was
    made? Surely they can’t have all been on the golf course? That it
    was going to be reported like that really should not have come as a
    shock.. Even on purely strategic grounds, the original takedown
    notice was unwise, to say the least. I’d also point out that Luke
    Platzer is part of a law firm that prides itself on being a
    “litigation powerhouse”. While that doesn’t necessarily invalidate
    what he has to say, it should be recognised that Mr Platzer has a
    direct commercial interest in this kind of legal action continuing
    and in it needing lawyers to resolve. One issue I think that lies
    at the core of your argument is how seriously we should take false
    DMCA notices. Which, I’d suggest, depends on how seriously you want
    to take copyright infringement. The analogy frequently used is that
    of physical theft. If I falsely accused you of burgling my house,
    wouldn’t you consider that a pretty serious slur on your character?
    I’m not suggesting you adopt our (utterly ghastly) libel laws, but
    I do genuinely think there’s a strong moral argument for
    considering illegitimate DMCA takedown notices to be defamatory per
    se. The alternative is to argue that copyright infringement is
    essentially a trivial allegation. Overall though, I think the EFF
    case is an opportunity. Let’s use it to argue that, in exchange for
    false DMCA notices being taken more seriously, that the whole
    process needs an overhaul. I assume we’d agree that the process
    needs to be less costly and time-consuming. I think it needs
    streamlining, especially where it applies to self-released artists
    and small indie labels. If we take action against false notices,
    let’s also look at making it so people don’t have to send repeated
    takedowns for the same song. Overall, let’s deliberately tilt this
    so the process is weighted towards those who only need to send a
    small number of notices (which is pretty much all the small
    labels), not those who are doing it on an industrial scale. Yes,
    I’m openly suggesting we throw the major labels under the bus to
    achieve a better deal for the little guys. I make no apology for
    that. It’s what they did (with the connivance of the Merlin labels)
    to a lot of indie labels in negotiations with Spotify. Turnaround
    is fair play. (Apologies for the length of this. It turned out a
    lot more wordy then I meant!)

    • Thanks for being a regular reader and for taking the time to comment. I’ll respond ASAP as I’m on a deadline today and traveling tomorrow.

    • Sam, thanks again for writing, but I think you’re operating from a few false premises. In the case of the Lenz video itself, it’s simply an error. Software identifies content that is part of a rights holder’s database and then alerts the owner of a file on a YouTube or wherever. Large media companies maintain staffs of people at computers who do nothing all day but send out takedown notices, and these operations hardly keep up with the number of legitimate infringements. Small organizations, the kind you seem to want to champion, don’t have the resources to do this at all, so they give up and hope that they have enough fans willing to support them. That’s not embracing piracy; it’s just accepting that they can’t handle it on their own.

      So, some takedown notices will occur in error, as appears to be the case in Lenz, but the EFF’s claim is that UMG willfully took down content knowing it was fair use. To Terry Hart’s point, this is a pretty poor example, if indeed UMG were committing this wrongful act on a large scale. In the case of NASCAR, that organization wrongfully used DMCA in order to commit what amounted to censorship. But magically, in both cases, the content was restored and Western civilization carried on. (There might even be millions of people who’ve never heard of either video and are none the worse for their ignorance.)

      You’re hardly alone in carrying some measure of animosity toward large media companies, and I have my own criticisms of them, generally vis a vis content. But I disagree that there is a disconnect between the needs of a Sony Pictures and the needs of IndieFilms, Inc. when it comes to copyright protection and solutions to mass infringement via the web. I know first-hand of lots of little guys getting squashed, and the only people who have the resources to affect this system on behalf of creators are the big media companies. The Web industry proponents keep talking about new models, but there really are very few actual examples of these “new models” working. To your suggestion that the little guys don’t have to send out many notices, just one music label I’ve interviewed, and indie in DC called ESL, has its music “shared” in the millions; and they absolutely do not have the resources to deal with that through DMCA. And they don’t equivocate that they could well be out of business if trends continue.

      Finally, if there is a case in which a wrongful DMCA takedown can be considered libelous, Lenz doesn’t seem to fit the bill. Not to be callous, but in order for us to get to libel, wouldn’t it have to be over something people a) give a damn about; and b) actually consider sinister or scandalous? I hardly think the brief period Mrs. Lenz suffered with her video banned from YouTube resulted in snubs at the garden club or rude whispers of “copyright infringer” at the grocers or threats to her job security.

      Anyway, please keep writing.

      • The thing about major versus indie labels relly galls me. To use the main example, Prince has said that his own break with the majors was in part inspired by ani difranco, who has never, ever been signed to a major label. (I believe that she did exactly one song for a soundtrack.) guess what? She’s still pirated.

        As an aside, the whole “touring and t shirts” model defies any economic sense (not to mention artistic: as I’ve pointed out many times, many of the great albums, movies and books required months or even years out of the public eye on the part of creators). Simply put, investing thousands of dollars and hours in something that will be a loss leader is a really dumb way to make money. As well, royalties often serve as a type of pension for artists who know they can’t tour forever…

        But never mind all that: how intellectually honest is the “touring and t shirts” model on behalf of the consumer? Looking at my own music collection I count hundreds of living artists, the majority of whom have never played anywhere near me. Add to that filmmakers and authors – should I support all these people through live performances? It’s easier to just buy the stuff in the first place.

      • Hi David,

        Thanks for the welcome! A few further points/replies.

        You’re almost certainly right that I’m misunderstanding some of the process involved- I’ll admit freely that I’m not actually that great at the technological side of things.

        To clarify one of those points, it was my assumption that it’s easier to track and send DMCAs for a small number of artists? Is that not the case. (If so, I think that’s another sign the DMCA system isn’t working properly).
        Filmmaking isn’t my area at all, so I’m happy to accept your word that the solutions are the same across the board there. I don’t think that’s the case in all fields. If we look at musicians, views are incredibly fragmented. We have both David Lowery and Steve Albini and all the views in between those two camps. Without more research, I simply don’t think we can talk about an “artist’s perspective” where it comes to music. In terms of solutions, there are some options only available to the big guys. If we look at video gaming, Electronic Arts have enough market share to get away with unpopular DRM that would utterly destroy any bedroom developer.
        We need to look at this holistically anyway I think. It’s about models as a whole. Although copyright infringement is a big issue, we can’t separate it entirely from the discussions surrounding Spotify or the stitch-up that’s the current UK ‘independent’ chart.
        There’s also issues round DMCA notices being sent to negative reviews, which I have trouble believing is simply a mistake. That’s part of a wider pattern though; one thing the crowd-sourcing advocates don’t seem to recognise is how much of an issue that’s caused in terms of astroturfing criticism. (It makes the old school method of giving music journalists free cocaine in the hope of making them feel well-disposed to you practically benign). Fair use is an important issue for me though and I’d like to not only see us adopt the principle over here, but strengthen it. And I don’t think it’s unfair to suggest that the big media companies have traditionally been very hostile to the concept.
        To give two relatively recent cases which illustrate what I’m talking about. Firstly, The Men That Will Be Blamed For Nothing were made to change their debut album’s name from “Now That’s What I Call Steampunk…”, although that was a trademark dispute. Realistically though, whatever the merits of the case, there was no way that a cult steampunk band were going to be able to take on the might of EMI’s lawyers. The other example is a somewhat niche one. The tabletop RPG Paranoia XP had to drop the XP after ‘words’ from Microsoft’s lawyers. These are examples of where I think the interests of media companies and artists are colliding and I want to see speech like this protected. A world without Kim Dotcom would be no worse off. A world without Negativland would be just a little bit more greyer.
        On the question of the “find a new business model” argument. It’s massively overstated and there’s no one size fits all solution. But there are some examples I can give you of them working. I know that The Indelicates are strongly of the view that they’ve made more on pay what you like, combined with special orders, then they would on a label. The oft cited Zoë Keating is a success story and one that I suggest wouldn’t have got anywhere under the old system. To return to my geek niche, tabletop RPG designers are generally doing better now they can release their work as PDFs and distribute it easier. (On the flipside, there’s a massive issue with copyright infringement in the RPG industry currently. Despite the fact that there is one ‘big company’ in the shape of Wizards of the Coast and they really aren’t that big). But there’s a question of how new the new models are. Pay what you like is just a refinement of the old “pay no more than” stickers. PDFs are merely a new format. And I find “new media advocate” lectures on the need for artists to connect to their fans presumptuous; the DIY scene has operated like that for as long as I can remember.
        Finally, I think the crux of this comes down to the best way to fight the commercial scale copyright infringement currently happening. I’d suggest that prioritising enforcement isn’t going to work, this is largely about trying to achieve a shift in attitudes. There’s some tactics that are effective- the current attempts to hit advertising are sensible, partly because I think the principle of “people shouldn’t make money selling advertising on other’s work without permission” is straightforward and carries moral weight. But, to return to an earlier point, when trying to shift attitudes one issue is that all copyright infringement is seen as morally equal, which works to the advantage of the file-sharing sites. In an ideal world, I’d like people to shift more to independent artists, but that’s not attainable. So, I think we should state, clearly, that there is actually quite a lot of difference between taking work from Warner and taking work from Bloodshot. Both financially and morally.

      • Sam, I’m at SXSW in Austin, TX with intermittent access and little sleep, so I may not have it in me to respond to the many points you’ve raised. Although, to summarize my thinking regarding what both you and Patrick are saying about DIY models, etc., I’d go back to what I wrote about Amanda Palmer inasmuch as I don’t think there is one way to do things, and there’s no question the Internet offers creators in all media certain opportunities that are either unprecedented or expanded versions of things that have always been done. But the Internet also brings threats along with its opportunities (to use corporate assessment terms), and you’re right that enterprise-scale piracy should be among the priority concerns; but I think you’re wrong to assert that there is a difference between Warner and Bloodshot — both pragmatically and philosophically. In fact, I would argue that part of changing the attitude among users toward “file sharing” is dispelling them of the notion that it’s okay to rip off anybody (philosophical), and that when you rip of Warner, you actually do threaten the artists and the middle-class workers who support those artists (practical).

        As for DMCA, you could say it’s easier to track a smaller number in theory, but that small number may still be way out of reach absent people whose full-time job it is to do the tracking. That’s not in the budget for an indie label or certainly an independent filmmaker. And it’s not that DMCA is never abused but that the organizations and individuals who make a lot of noise over these incidents are being disingenuous, as I believe is the case in Lenz. There’s a larger agenda, and I think it’s important to pay attention to what that agenda is, why it’s being pursued, and by whom.

        Big media companies have long histories and not everything they do is fair or reasonable. Sometimes they aggressively protect their rights in ways that are dumb and mean spirited. Other times, they behave appropriately and are unfairly vilified for it. And at other times, they’re defending principles many of us hold dear. Any lawyer will tell you that failure to protect copyrights, patents, or trademarks sets a precedent that can be detrimental to an entity of any size. As such, some cases appear, and even are, absurd to our notion of common sense and fairness. Still, for all the drama, I think it’s important to realize that the rights of the author are universal, and so there is going to be common ground between the fledgling artist and the media giant, whether the former wants to believe it or not.

        All of which is to say that I generally agree with your big picture view, but I think part of looking at this holistically may well depend on not throwing Big Media over the cliff. Big companies were start-ups at one point in history, and I am especially leery of where many of these “new media” ideas originate — namely the corridors of companies many times larger than the likes of EMI, Sony, etc.

      • Sam Flintlock wrote:
        ” But there’s a question of how new the new models are. Pay what you like is just a refinement of the old “pay no more than” stickers. PDFs are merely a new format. And I find “new media advocate” lectures on the need for artists to connect to their fans presumptuous; the DIY scene has operated like that for as long as I can remember.”

        Precisely. I feel like the punditry of new media specialists over these last ten years has been little more than a rehash of the ’80s underground/college/alternative scene as viewed through the rose-colored glasses that, ironically, modern musicians are constantly accused of wearing. It’s like these writers just found a copy of “Our Band Could Be Your Life” and it’s ‘changed everything’ for them. You know, much like the kid who thinks he’s the *first* person to discover Husker Du or the Replacements in his freshman year at college. It has become tiresome. Especially to those of us who have been listening to Television and Wire since junior high.

        I’m suspicious that it’s becoming/always was just a racket to take advantage of aspiring musicians too young to know better. Those bands weren’t earning a living in the ’80s either. And the same BS tactics that they used are supposedly going to ‘save’ the industry today: tour tour tour! Sell shirts. Sleep on couches. Rely on the kindness of fans.

        The obviousness, coupled with the vagueness of much of this ‘advice’ is counter-productive. It’s gibberish. “Connect with fans?” Methinks the author of that one doesn’t really understand two of the more important words in that sentence.

        Seriously, I read advice from some numbskull just the other day that said, literally quoting, “Be awesome!” Yeah, got it, brilliant insight; thanks…?

        It’s just like you say, Sam, I’m not sure when playing live, being friendly and social, and living bare-boned *wasn’t* the standard operating procedure for young bands. I spent ages 18 to 26 or so doing just that, it ain’t a living, let me tell you.

        Besides, the idea that playing live is somehow a more honest business is ludicrously out of touch. Anyone who moans about how labels treat artists has been living a cushy life away from the road, where the *REAL* criminal element thrives. When compared to the thugs masquerading as club owners and promoters, I’d take David Geffen any day. Yeesh.

        One question, Sam: what do you mean by a “stitch up” in the independent charts? I assume you’re not in the US, which is the only country’s charts I’m at all familiar with. I do always love to hear about shenanigans, though.

      • “So, I think we should state, clearly, that there is actually quite a lot of difference between taking work from Warner and taking work from Bloodshot. Both financially and morally.”

        Not for most file sharers, apparently. In the end, it doesn’t matter, because you can’t “stick it” to one without the other.

        Similarly, there’s the elephant in the room of retail. The demise of Sam Goody may not seem a major blow to the culture, but the demise of Tower Records arguably is.

      • I hope this places in the right place. The nesting comments is confusing me somewhat.


        No probs with the time constraints. (I’d entirely forgotten it was SXSW which is embarrassingly parochial of me). I really should stop procrastinating and get on with my dissertation soon anyway! And I’m sure we’ll have conversations on these kinds of topics in the future. I’ll just highlight a few of your points to try and cut this down.

        Completely agree with you on Amanda Palmer. I want my art to have a place for reclusive bedroom types as well as for the gregarious. I actually know people who’ve worked with Palmer and she’s exceptional, both in her self-belief and her ability to push herself as a brand. To argue that most musicians can take the Palmer route is like saying that the KLF proved that anyone can have a number one single. That only worked if you were the KLF.

        Realistically, the “copyright infringment is theft” argument hasn’t had much effect. At present, I’d say the propaganda war is being lost. So, as an immediate goal, let’s try and get across the idea that, actually, Kim Dotcom is not some kind of brave freedom fighter or even a loveable rogue. He’s a digital snake oil huckster. That argument is much easier to make if you tap into the current vague anti-corporate sentiment found among many filesharers. You can’t do that by telling them they’re backing the wrong big business. (For the record, I don’t illegally download major label artists. I make my personal protest by making a conscious effort to spend my personal entertainment budget on the little guys). And yeah, we combine that with hammering Google and Amazon for their seeming ideological commitment to paying as little tax as possible.

        I’m aware I’ve probably been guilty of giving an overly rosy picture of the indie sector; I’m basically talking about the good guys. I know fully well that there have been some really shady indies about over the years. But to give two main differences between the good ones and the majors. If we’re talking about gatekeeping, I’d argue that’s the indies roles, who take on those artists they believe in artistically. The majors simply go for who they think have the best chance of selling records- it’s “the wisdom of crowds” gone mad! Hence Pop Idol. Also, shareholders make a big difference. If you’re on the stock market, profit has to be your only concern. It’s illegal otherwise. The fact that big tech can’t be trusted doesn’t mean we should return to an old model that sucks just as much and has been for longer. It means we need to find a better way forward. (In particular, I’d like to see the advance system put in the dustbin of history. It’s screwed over far too many artists, far more than it’s helped).

        @ Patrik-

        I’m from the UK, so that’s obviously a bit of a different perspective. I’m possibly slightly younger than you as well- I came into this via the early 90’s UK scene.

        There’s been basically two worthwhile theories that have come from the new media people. The long tail is essentially correct, but only benefits aggregators, not individual artists. 1000 true fans is legit, but it takes a very specific type of band to achieve it. Apart from that, I’ve not seen much of use coming from those quarters.

        “It’s just like you say, Sam, I’m not sure when playing live, being friendly and social, and living bare-boned *wasn’t* the standard operating procedure for young bands. I spent ages 18 to 26 or so doing just that, it ain’t a living, let me tell you.”

        I would mention that the guys I knew on major labels weren’t making a living either mind you. Generally, they ended up worse off.

        “Besides, the idea that playing live is somehow a more honest business is ludicrously out of touch. ”

        On top of that, playing live isn’t an option for everyone. Do we say no more studio bands are going to come through, because that will decimate the electronica sector. And what about older artists? I listen to a lot of folk, which is a much older (on average) group of artists then rock and pop. You can’t expect Leon Rosselson to couchsurf while he performs. The guy’s 78 years old, for god’s sake.

        My general rule of thumb is that anyone who tells me that touring is the way forward for bands is showing they have no idea what they’re talking about and can be safely ignored. Apart from a tiny number of artists, keeping costs down over here means that hopefully you’ll break even. We no longer have a proper university circuit- when we did then this was just about possible. Maybe it’s different in the US, but if anything, I suspect the sheer geographical distance bands need to cover for a national tour makes it worse.

        “One question, Sam: what do you mean by a “stitch up” in the independent charts? I assume you’re not in the US, which is the only country’s charts I’m at all familiar with. I do always love to hear about shenanigans, though.”

        Briefly, in the old days, to qualify for the indie charts, you needed independent distribution. That worked for a bit, but in the early 90’s the majors started setting up fully owned subsidiaries with indie distribution channels which massively diluted the importance of the chart. For the relaunch in 2009, the distribution requirement was dropped, instead the label had to be at least 50% owned by a company that wasn’t one of the big four. So, records are eligible for inclusion if they’re on a label that’s 50% owned by a major. That’s really not a step forward, though it arguably couldn’t have got any worse… As you’d probably guess, I’m a hardliner here. Any major label involvement should mean a release isn’t eligible for inclusion.

        @ Monkey

        “Not for most file sharers, apparently. In the end, it doesn’t matter, because you can’t “stick it” to one without the other.”

        Absolutely and that’s what I’m arguing we need to try and change. I want “indie” to mean “independent” again, not simply be about the way people play their guitars. And I want supporting indie artists to be something that people are actively proud to be doing. That’s not possible without putting some clear blue water between the indies and the majors.

        “Similarly, there’s the elephant in the room of retail. The demise of Sam Goody may not seem a major blow to the culture, but the demise of Tower Records arguably is.”

        Yeah, we have independent record stores closing up and down the country. Vinyl collectors are keeping some going, but not all of them. There’s some stuff that can be done- part of the issue is the Amazon taxes (again). At the moment, Amazon aren’t competing on a level playing field. The supermarkets have been at least as damaging as the Internet here though. They only stock the top sellers and buy them in bulk at a discount. The small shops simply can’t compete with that. And, yet again, the majors are directly responsible for allowing that to happen.

        Realistically though, while there are measures we can take, the heyday of the record store is gone. It’s sad, but that’s not something that can be changed. Anymore than we can reverse the clock and start selling music in electronics shops again.

  • A few more interesting things about the Prince thing: 1.
    The “slave” thing AND the name change were related in a deep way.
    In African American culture, the idea of reclaiming your identity
    by getting rid of your “slave name” has been a powerful idea since
    the 60s. As well, he was hardly the first to make the connection
    between slavery and exclusive contracts; Curt Flood said the same
    thing about baseball twenty years ago. 2. Prince was one of the
    first to adopt the Internet as a serious means of distributing
    music. Again, like many critics of Web 2.0 he is hardly a Luddite.
    3. Ironically, Prince should be embraced by the Web 2.0 crowd
    because he says the same things about the music business that they
    claim. The only difference is he then says “don’t pirate me.” 4.
    Another source of Internet griping has come from Prince’sdecision
    to remove clips of him playing “Creep” even though Radiohead was
    okay with it. People don’t seem to understand that performers have
    rights separate from composers.

  • I don’t make the assumption that the EFF acts in good faith to begin with. They seem to be vehemently anti-artist for some reason or another. From my point of view, they’ve been on a stomp on musicians romp from inception. I get a sour taste in my mouth just typing those three letters anymore.
    I think you have a point in using this unfortunate legal pissing match as a stepping off point to steer the conversation (and perhaps legislation) towards more sensible utility. How and to what end are another matter though. There are very entrenched interests these days that make a LOT of money keeping things convoluted, and the EFF and their ilk use their platform to make US creators seem like the bad guy… In other words, we have a tough hill to climb.

  • It might be a good idea to point out something that nobody
    seems to mention vis a vis the two suits that
    were actually brought by rights holders
    against individual infringers: Tennenbaum and Thomas-Rassett. What
    seems lost on most people commenting these cases is that the labels
    are in a bind. They have tried – on numerous occasions – to settle
    the two suits for much lower amounts than those awarded – only to
    be firmly rejected by the defendants. At the same time, they cannot
    let these cases go for fear of setting precedents that will later
    apply to much less “benign” cases (I rather doubt that a ruling
    could be held only to apply to students or single mothers). In
    short, the labels are taking PR knocks for all of us here –
    fighting for our right to defend our rights. Ironic, isn’t

    • Tenenbaum in particular, Faza. In that case, his lawyer, Charles Nesson, is targeting copyright law itself with what looks like a self-serving desire to take something to SCOTUS, and settlements have been rejected throughout the process. There is no choice but to respond vigorously, and still the award thus far is a fraction of what the rights holder is entitled to seek by law.

      • Ol’ Charlie messed that one up spectacularly, as I recall… the man has the potential to make Larry Lessig look like a competent litigator (I may be muddling things up now, but wasn’t Lessig a student of Nesson’s or some such?)

        The point is – ‘coz I don’t want to look like I’m drifting off topic – is that these days copyright has become too much of a use it or lose it right; which means you might find yourself pursuing suits you’d much rather avoid.

        In the broader context of what you wrote, rights holders could be a lot more sanguine about the “fairness” of potentially infringing uses if these were the occasional exception, rather than the rule. The fact that it still isn’t exactly clear who bears the responsibility for industrial scale piracy: the end users who actually upload stuff or the businesses that facilitate and (tacitly) encourage it, doesn’t help matters. I, for one, would like to see a lot more corporate responsibility being demanded. There are numerous businesses that are held accountable for who they conduct business with, because their services – used wrongly – can be of detriment to either the customer or third parties. I can’t think of one could reason why a similar degree of accountability cannot be applied to online businesses.

      • Faza,

        I know you know the problem is fundamentally tied to UGC, we’ve had this conversation before. It’s a different world out there and the web and Internet in general has evolved ever more to a read-write medium (this blog is an example!); far cry from the publisher/broadcast medium where copyright flourished.

        There is no way a company that has a business based on UGC (which is like every major Internet company really) can actively police their users and still stay in business. It doesn’t scale.

        And this is not even considering how fundamentally difficult it is to determine copyright infringement in a world where copyright is automatic and infringement itself can be subjective, even between different levels of the same circuit of judges.

  • M wrote: “There is no way a company that has a
    business based on UGC (which is like every major Internet company
    really) can actively police their users and still stay in business.
    It doesn’t scale.
    ” . . … Well gee wiz… i guess they
    will have to “find a different business model” Funny how that
    works, eh?

    • Great (?) minds think alike…

    • But the thing is a strong technology industry is far more
      important to the security and stability of the nation then the
      entertainment-focused movie and music industry, and you’ll see that
      politically we will always sacrifice Hollywood before Silicon
      Valley. Even with Hollywood’s historic clout in the

      • Actually, I would say that culture is far more important
        than technology, but that’s an argument we can’t resolve. But it’s
        not really the point. If Silicon Valley can’t compete, that’s their
        tough luck. The culture industry should not need to subsidize the
        tech industry. What is apparent to me is that a healthy culture
        industry seems to result in a broader distribution of wealth than
        the tech industry, which tends to eliminate middle class

      • In this context, it seems relevant to keep in mind that these “tech” companies are not just supplying technology to make life easier, better, etc. They are media companies that derive the majority of their revenue from advertising (Google is 90%). When these technologies are invasive, ubiquitous, and driven by marketing, they’re not inherently evil, but they’re not inherently good for culture either. If anything, though, the reliance on ad dollars and the efforts of Google, etc. to lower the bar on copyright infringement proves that they can’t actually function without the universe of creative producers, so it really isn’t a matter of one succeeding while the other fails. The relationship is more symbiotic than that, even if the entities themselves (and dare I say copyright law) look different in 20 years.

      • David,,27610/

        It’s parody, but the premise is true. There are lots of business and even government entities that are strongly depend on Google’s services to do their core business functions. Google has us by the balls. And that’s just one tech company.

  • “There is no way a company thst has a business based on UGC
    (which is like every major Internet company really) can activly
    police theur users and still stay in business. It doesn’t scale.”
    So why are copyright holders responsible for Internet companies
    having bad business plans?

  • Exactly.

    I suppose they will need to actually ‘innovate’…

  • Pingback: The EFF assumes the worst - of everyone else. » The Illusion of MoreThe Illusion of More

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