Tag: David Lowery

What’s at the bottom of the Pandora box?

Once again, Pandora internet radio is attempting to use an act of Congress to lower the royalties it pays artists, and once again, musicians are speaking out against both the tactics and the two-faced approach being taken by CEO Tim Westergren to pay lip service to his respect for artists while sticking his already well-greased palm into their back pockets.  The members of Pink Floyd wrote an open letter to other musicians to beware Pandora’s recent “outreach” toward artists, and David Lowery famously got to the nuts and bolts of the matter by posting a royalty statement revealing that 1.1 million plays of one of his songs on Pandora earned him $16.89.  Opening up Pandora’s box, if you will, raises many issues, including the overarching question as to just how well digital-age models, at their best, are working for artists.  But while we’re still mid torrent issuing from Pandora, one question too often overlooked is where the songs come from in the first place. It’s been said before, but the generation raised on round-the-clock, free access to entertainment really may be as disconnected from the production of that entertainment as many of us through modern convenience became disconnected from the production of food. Perhaps, as we see a renaissance in understanding farming and other food production, a similar awareness might take place with regard to the creative works that feed the soul.

In this New York Times article, author/musician Wesley Stace describes his experience collaborating with poet Paul Muldoon to teach a class in songwriting to students at Princeton.  Stace poses the question as to whether or not songs (and by implication other art) can be produced on demand like any other homework assignment, leaving open the more whimsical question of being struck by one’s muse. While reading, I could not help but think of the famous Brill Building, that songwriting factory of the 1950s whence came many of rock-n-roll’s most famous hits.   Stace concludes that, yes, songwriting is a craft like any other, and that it has a process that can be taught and learned and accomplished, even by students with little background in creative writing or music.  By leading their students to delve into emotion in this otherwise intellectual setting, Stace and Muldoon found the results both prolific and astounding.  “I wish I’d written, or could write, some of the songs I heard on these Tuesday afternoons; sometimes it felt like my sole qualification to teach the course was that I was old and experienced,” writes Stace.

One might conclude from the article that “anyone can write a song,” and Stace would probably agree up to a point.  The 24/7 coffeehouse known as YouTube has certainly helped  feed this notion that “we are all authors” now, which in turn spawns the illusion that songs and other works are of lesser value today than they were 15-20 years ago. But to quote Stace, “Songwriting is a skill — best practiced, easily improved. If you exercise regularly, keeping fit becomes easier and less unpleasant, until it becomes a habit.”  In other words, it’s work.  And what makes the songs you and I want to hear over and over again is a combination of, yes, luck in the form of possessing raw, unique talents, and then a ceaseless investment of work, often by many people.

My Pandora stations include both a Camper Van Beethoven and a Pink Floyd, and if you ever heard me play “Comfortably Numb” on the six string, you would need no further proof that we are not all musicians.  But when we consider the combination of both effort and circumstance that yields just this one song about an experience most of us will never have, yet so many of us can understand, we should recognize that it is rare and therefore valuable.  In fact, not unlike the story of Pandora’s Box, the album The Wall itself concludes with destruction and then the sound of an accordion playing like a solitary flower growing though the gray rubble, and the voice of Roger Waters reciting a eulogy with just a tinge of hope.  I know for sure that I need Pink Floyd in my life and that I don’t need Pandora to get it. So, that’s what’s at the bottom of the box.

Copyright Principles & Consensus?

Yesterday, the House Judiciary Committee held a hearing meant to lay some of the groundwork for overhauling copyright law in the United States.  The title of the hearing is “A Case Study in Consensus Building: The Copyright Principles Project,” suggesting that the “project” is about establishing premises and ground rules for how the debate might be framed going forward.  I suppose because the word consensus is also part of the title, several lawmakers and the witnesses called to testify repeated the rhetorical question as to why debate about copyright has become so contentious.  For authors and creators who actually use copyrights to forge professional careers and build businesses, this feint at decorum will elicit a justifiable sneer because it’s kinda like saying, “All someone did was spit in your eye, and I don’t know why we can’t now have a civil discussion about the principles of expectoration.”  Of course, there weren’t any authors or creators present at this hearing, and that in itself has been cause for concern.

For the lawmakers who asked the question in earnest as to why the debate on this issue can be so vituperative, they need only have paid close attention to one subtle but significant choice of words in the testimony of Professor Pamela Samuelson when she was asked about the matter of online piracy.  Samuelson, the lead author of The Copyright Principles Project, stated that individual artists are at “some disadvantage” in protecting their rights on the internet.  Some disadvantage?  Like a lone Boy Scout would be at some disadvantage fending off a mechanized armored division.  The thing about consensus is that you can’t ask for it if you’re going to propose a foundation of “principles” predicated on lies and half truths.  The correct answer to the question asked of Professor Samuels is “Individual artists don’t stand a chance of protecting their rights on the internet; they might as well shout their grievances into the next passing hurricane for all the remedies and resources at their disposal.”  Had the good professor said something remotely descriptive of the true nature of this problem, then perhaps we can have a big ol’ debate as to whether or not anybody cares, as I suspect many lawmakers and fellow citizens do.  Keep in mind that the scale of the problem as I describe is not even disputed by some of copyright’s most vocal antagonists and piracy’s most vocal supporters.  “You can’t stop it, don’t try” was a familiar mantra during the dustup over SOPA, and with just one BitTorrent site claiming three billion page views a month, they may be right. But let’s not equivocate as to what creators are up against as we presume to “build consensus.”

This past March, The Wall Street Journal published a profile of the anti-piracy unit within NBCUniversal, and even this group of dedicated professionals funded by a major corporation can hardly keep up with the rate or volume of unlicensed distribution of their properties.  By contrast, independent filmmaker Ellen Seidler has documented in great detail exactly what the experience is like trying to protect just one small, niche film from being hijacked and monetized by criminals and Google.  Lawmakers should be aware of the facts and aware of the obfuscation, however subtle, being employed by academics like Professor Samuelson.  At the same time, the general public should be aware that not every idea that comes out of an academic’s head makes it automatically a good idea no matter how prestigious their company.  In academia, one doesn’t make a name for oneself by defending the status quo, but rather by bucking a system, even going so far as to identify “problems” within a system that may not be problems at all. Academic study is critical to a progressive enriched society, but we should never underestimate the motivating factors of ego and self-promotion and grant acquisition when reading between the lines.

On the subject of what is supposedly wrong with copyright, the other theme of the day in addition to why we can’t just all get along, was a substantial amount of griping and joking about complexity.  Copyright law is too complex, say the witnesses and a few legislators, and I have no doubt that it is complex and maybe too complex in certain areas that require streamlining.  But as a general rule, is copyright law more complexly burdensome than any number of other laws?  Isn’t that why people study the law in challenging post-graduate schools and then have to pass a really hard test before they’re allowed to practice the discipline professionally?  More to the point, though, if technology has made the world of consuming content more complex, is it disingenuous to suggest that revising copyright to balance the rights of authors and consumers in the digital age would not produce an even more complex set of statutes?  And if more complexity is required, so be it; but that’s not what’s being proposed.  What’s being proposed, at least by Samuelson & Co., is to simplify the legal system, which sounds good in theory; but it seems to me that the only way to “simplify” a law in an ever more complex world is to eliminate key functions of that law.  And since copyright’s key functions are the protection of authors and inventors, this begins to echo David Lowery’s distillation of the internet industry agenda:  “All your data are belong to us.”  No question that’s very simple.

So, again, the premise issuing from the chamber and reverberating on Twitter is predicated on smart sounding academic theory (i.e. simplifying a law) entirely untethered to a real or pragmatic world view.  The premise being proposed is that copyright ought to be easier to understand for any layman because it is now “everyone’s issue” because in the digital age, “we are all authors.”  This was the oft-repeated theme of live tweets by Gigi Sohn, President and co-founder of Public Knowledge and echoed at least once by Mike Masnick of Techdirt.  Of course, the truth is that just because the internet fosters a lot of production of stuff, that doesn’t make us all authors anymore than corporate softball teams make us all ballplayers.  On my best day, I don’t write as well as many authors I admire deeply; and on my worst day, I’m better than many a citizen whose claim to authorship is the possession of a smart phone and a pair of thumbs. So one can sit in tech-industry funded ivory towers and ruminate over the proposition that a novel by Steven Millhauser is of equal value to the random bits of personal detritus shared on social media, but if we consider for a moment that copyright ought to be amended based on this childishly whimsical proposition, then we might as well start burning the libraries this afternoon.

Speaking of Mr. Masnick, he live tweeted that his blood pressure was being elevated by the hearing because, as usual, “Congress doesn’t get the internet.” This is a familiar cheap shot available to anybody with an axe to grind.  One can start the sentence “Congress doesn’t get _______” and find any citizen or group to fill in that blank with their personal gripe du jour.  Of course it was very clear that certain lawmakers, including Hon. Collins, Hon. Chu, and Hon. Goodlatte, that Congress is not at all willing to automatically swallow unsubstantiated, academic theory as the sole basis for rewriting a legal system that has made the United States a leader in the professional production of creative and cultural works for more than two centuries. And had there been any creators asked to testify, they would have clearly demonstrated that academics like Professor Samuelson don’t know the first thing about the production of creative works or the nature of protecting them.  Somehow, all this translates into the failure of congress to understand the internet, but maybe it’s not that so much as some of the ideas being presented are kinda dumb and transparently self-serving.

On that last point, as more hearings like this one are convened in what will surely be a years-long process toward some kind of reform, we should not forget who the monied interests are that have the most to gain from weaker copyright laws.  The premise most often asserted in the name of “consensus” is that we cannot allow supposedly outdated legal systems to stand in the way of innovations that benefit society.  Again, this is a perfectly reasonable sounding position, but there should not be a lawmaker of any party who does not include economic growth in his or her definition of innovation, and this recent article in The Daily Beast should serve as a caution in light of the fact that intellectual property supported jobs still number in the tens of millions.  As the article’s author Joel Kotkin points out, “Today’s tech moguls don’t employ many Americans, they don’t pay very much in taxes or tend to share much of their wealth, and they live in a separate world that few of us could ever hope to enter. But while spending millions bending the political process to pad their bottom lines, they’ve remained far more popular than past plutocrats, with 72 percent of Americans expressing positive feelings for the industry, compared to 30 percent for banking and 20 percent for oil and gas.”

Copyright may be a little hard to understand, and some members of congress might not “get” the internet, but it doesn’t take a law degree or expertise in code writing to know what a contemporary Robber Baron looks like, does it?

What’s the deal with the IRFA?

Photo by JGroup

Musician David Lowery, founder of Cracker and Camper Van Beethoven, has become one of the most vocal defendants of artists’ rights in the digital age. A co-founder of The Trichordist, Lowery and his colleagues write some very detailed, professional assessments of the state of the music industry since digital file sharing, streaming, and purchasing have become a reality.

Presently under fire by Lowery and others is a bill called the Internet Radio Fairness Act, which appears, for now, to benefit one company — Pandora.  I haven’t had a chance to read the bill yet, but analysis from a few sources sounds an awful lot like new-era business seeking a very old-school model for profitability — free labor.  To the generalist glancing at some post about the IRFA on social media, it sounds progressive and reasonable, namely the headline that states “the Internet Radio company wants to pay the same rates as terrestrial radio.”  No surprise, it ain’t that simple. In addition to Lowery’s piece, I would read some of the analysis by Chris Castle, who has been following the details fairly closely.

The most disconcerting criticisms I’ve read is that the bill is a union buster, designed to weaken or destroy the collective bargaining rights of artists. One paragraph in the bill is particularly troubling:

 “Nothing in this paragraph shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings [including artists who own their own sound recordings] in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).’.  [For which there are both civil and criminal penalties.]”

Like I say, I haven’t had a chance to read the bill in full yet, and I’m not a lawyer.  What I do know is that Internet companies do not deserve a free pass when it comes to the question of influence peddling. If Pandora cannot turn a profit without a law that strips artists of collective bargaining rights, then so long Pandora.  It wasn’t that long ago when industrialists claimed they could not build important infrastructure without treating American workers like virtual slaves.  The right to bargain for the value of one’s work cannot be recast in this technological era as a barrier to the innovation of entertainment any more than it ought to have been claimed as a barrier to building a railroad over a century ago.  And considering how often the Internet industries cry foul every time a member of the creative community goes to Washington, this bill sounds more hypocritical and lopsided than it does “fair.”