Tag: Featured

A Lot of Noise on Spotify

When Napster appeared in 1999, it was a bit of a perfect storm situation for fans to rationalize music piracy.  Granted, people would have used the file-sharing app no matter what, but the music industry had indeed become demonstrably bloated; and one chronic complaint among consumers was that we were required to buy a $15 CD just to get two good tracks with eight filler songs.  Whether this criticism was valid or not is hard for me to say, since I mostly abandoned contemporary music in the 90s. But I have certainly encountered this allegation, even during the last five years, as part of a recurring narrative that piracy “taught the industry a lesson” about what consumers want, which is how we ended up with iTunes, Pandora, and Spotify.

But as a Spotify user, you might have had the experience of dealing with a new variation on this “filler tracks” theme.  Perhaps, you’ve searched for a song, got a result, hit play without paying much attention, and then asked, What the hell am I listening to?  I had no idea there was a pan-flute version of “Holiday in Cambodia”?

Okay, maybe you won’t find anything quite that absurd, but a recent flurry of music news reporting says that not only is Spotify full to bustin’ with mediocre covers of popular songs, but the streaming company itself has been accused of commissioning volumes of filler music in an effort to drive down the licensing fees it has to pay to major and independent artists.  In particular, it is alleged that those genre playlists with names like “Focus” or “Ambient Chill” are not only filled with tracks by artists you never heard of, but possibly by artists who don’t exist other than as fronts for music that is owned by Spotify.

Music Business Worldwide reported in August 2016 that Spotify was commissioning producers to create tracks with “specific guidelines” and then crediting these works to non-existent artists.  This accusation remains an allegation, which Spotify has flatly denied, but to which MBW responded just a few days ago, essentially asking, Okay, then who are all these “artists.”  Reporting, Tim Ingham poses the following reasonable questions:

“Put it this way: if an act on Spotify has millions of streams from just a couple of tracks, but no other internet presence whatsoever, wouldn’t that strike you as odd? No Facebook, no Twitter, no ReverbNation page, no homepage, no SoundCloud? What about if they had no manager/lawyer and no industry relationships? And seemingly, according to their Spotify credits, personally owned all of their own rights? What if their music then only appeared on Spotify – and was nowhere to be seen on YouTube, Apple Music etc.? That would be weird, right? That would make no sense. In total, tracks by the 50 ‘fake’ artists we’ve [identified] amount to over 520m Spotify streams. By traditional rights-holder payout metrics, that’s worth more than $3m in royalty payouts.”

Whether or not Spotify itself has been commissioning content that is misleading customers, one concern with stuffing these playlists with covers is what happens when we get to other genres?  How soon before users click on the “Jazz” playlist to hear the sound stylings of John CoalTrain? What does that say about “music discovery” in the digital age?

Songs are covered by compulsory licenses. Anyone who pays the license fee to the songwriters/publishers may cover any of these songs without permission, and this provides opportunity for both good and not-so-good music makers to capitalize on the fact that listeners will naturally use a service like Spotify to search for titles or keywords.  As Adam K. Raymond explains in his in-depth discussion on Vulture, “Bob Seger, the bearded grandfather of mainstream radio rock, was not on Spotify until this month. But Bob Segar has been there for years, and the misspelled version of the Detroit rocker racked up 1.2 million streams on a cover of “Turn the Page” in the real Seger’s absence.”

Indeed. I found a Bob Segar Playlist with a number of Bob Seger hits covered by an artist called Sam Morrison and Turn the Page.  These are not cover songs in the tradition of a distinctive artist performing his/her own version (e.g. Whitney Houston does Dolly Parton’s “I Will Always Love You”) but are instead in the style of a “tribute” band.  Sam Morrison’s impersonation of the real Seger is just good enough that any number of listeners might not notice right away—or ever—that they’re not listening to Bob Seger. And the misspelling of artist’s name is clearly meant to deceive.

Raymond goes into considerable detail on the various ways different parties game Spotify to earn revenue with the musical equivalent of clickbait—like releasing duplicate tracks with different titles, or producing “songs about everything” so that a search for one’s hometown, for instance, might turn up a song about it. Is it a song you want to listen to?  Well, to each his own.  Raymond observes …

“The big loser here is the listener. He’s increasingly having to dodge spammers and imposters to find his favorite artists, and then slogging through endless albums once he does. But maybe this isn’t such a bad thing. Listeners have long been the primary beneficiaries of free or dirt-cheap streaming services. Now, after years of artists alone coping with the devaluation of music, fans are feeling its effects too. It may not be ideal for anyone, but at least everyone is suffering together.”

One of the promises made by the internet industry to artists and consumers was the aforementioned opportunity for discovery; but I don’t think anyone meant the discovery of dreck that fans would have sift through to find the work of artists we already know or might want to know.  Nobody appears to be doing anything illegal in gaming the system (unless Spotify is engaged in any type of fraud), but that doesn’t mean the new models don’t enable some far more complex forms of chicanery than those 90s-era complaints about overpriced CDs.

Referring back to the Canadian Supreme Court decision in the Equustek case, the significance of that decision (despite the wailing and teeth-gnashing at EFF et al) is that it recognizes the ways in which the tools we use to derive benefit from the web—search, SEO, keywords, etc.—are very easily wielded by hucksters, spammers, and outright thieves.  No, listening to a Bob Seger impersonator on Spotify isn’t going to hurt anyone, except perhaps Bob Seger, but reading fake news does, and so does buying counterfeit products or accidentally giving information to a scam service.

I doubt we’ve heard the last on the question of whether or not Spotify is actually commissioning works under pseudonymous artist names, or where that investigation might lead.  To me, these latest revelations are just part of the same narrative that keeps unfolding this year—that the “new models” of the digital age have some serious flaws for which the fixes might be that these companies have to behave a little bit like “legacy” industry.  And that may not be a bad thing.

ReDigi Is Not About Consumer Rights

ReDigi is a business venture whose revenue model is based on brokering online transactions between sellers and buyers of “used” music files.  A prospective seller has a collection of legally-purchased digital files of songs purchased from iTunes that he will never access again, so he places these for sale via ReDigi, which connects him with a buyer. The buyer purchases the file(s) for less than the current retail price, and ReDigi takes a cut. According to their testimony, ReDigi’s software removes the file from the seller’s computer before copying it to the buyer’s computer.

It is understandable that consumers might look at this story on the surface and think it seems like a great idea; but ReDigi is in fact a classic example of yet another digital-market business venture trying very hard to get a court to conclude that the copyright law says something other than what it says.  In addition to the company’s multiple statutory conflicts, the business model itself would have a devastating effect on the primary market by creating a parallel market that is “secondary” in price only.  Moreover, despite its claims, ReDigi has no way of controlling whether or not its users would store files in offline devices while selling copies of the same files through the service.  And it goes without saying that the implications of this proposal would quickly affect digital books, movies, software, etc.

ReDigi has tried to argue its legality based on two limitations to copyright:  fair use (§107) and first sale (§109).   In March of 2013, the Court for the Southern District of New York soundly rejected all of ReDigi’s affirmative defenses after Capitol Records sued the company for infringement of the reproduction right (§106(1)), the distribution right (§106(3)), and the rights of performance and display (§106(4) & §106(5)).  ReDigi has appealed; amicus briefs have been filed; and a hearing at the Second Circuit Court is imminent.  Although the fair use defense in this case is infuriatingly funny, I think the defense argued by ReDigi that is most-widely reported, and which would gain the attention of most consumers, is the assertion that the business is covered by first sale doctrine.

First Sale is a Tangible Peg That Doesn’t Fit Into Intangible Holes

(Photo source photo by jgroup)

Like fair use, the principle of first sale has a common law lineage and was codified into the federal copyright law with the 1976 Copyright Act.  The seminal case involved a 1904 novel called The Castaway, written by Hallie Erminie, who was highly controversial for her pro-Southern views on race and the Civil War.  Publisher Bobbs-Merrill had set the retail price for this book at one dollar and notified retailers that any reduction of that price would be deemed an “infringement of copyright.”  When the R.H. Macy company sold copies at 89 cents each, the publisher sued; and in 1908, the Supreme Court unanimously held that Bobbs-Merrill had erred in its attempt to control the price via copyright after having sold the books wholesale to Macy.  The opinion contains the following quote:

“It is not denied that one who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it. The purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.”

Bobbs-Merrill v Strauss is the case law precedent for the federal statute which today allows you to legally dispose of your physical copies of books, CDs, albums, and DVDs in any way you want—from reselling them to gifting them to making sculptural works of the materials and copyrighting those sculptures if you are so inclined.  The rights holders have no interest in the paper, plastic, and vinyl, even if these physical objects might later obtain intrinsic value far beyond their original purchase prices.  Copyright protects the intangible, or as the same court opinion stated …

“The copyright is an exclusive right to the multiplication of the copies, for the benefit of the author or his assigns, disconnected from the plate, or any other physical existence.  It is an incorporeal right to print and publish …” 

This, by the way, is why that pro-piracy assertion that says, “copying isn’t theft because nothing physical has been taken” is absolute gibberish. Copyright grants exclusive rights to the author, and it is the rights which are stolen via piracy.  And on the subject of the rights ReDigi is infringing, it has two major problems with its defense under the first sale doctrine.

The first problem is that courts frequently take a dim view of corporations that attempt to “stand in the shoes” of their customers. In other words, even if first sale doctrine could ever properly apply for you and me in the digital market (and that’s a big if), that does not give a business like ReDigi the right to commit mass infringements in order to facilitate, and profit from, our individual exercise of that right.  This pretense that the for-profit business is acting on behalf of consumers is SOP for many contemporary ventures; and it’s usually the way the story is reported in the press because the actual legal issues are less sexy. But ReDigi really isn’t about our rights as consumers, it’s an attempted end-run around copyright to make millions on the backs of creators—again.

The second problem for ReDigi’s claim—and indeed with applying first sale in a digital market in general—is that the statutes in §109 only provide a narrow exception to the right of distribution (§106(3)) and not to the right of reproduction (§106(1)). You can sell your copy of Toni Morrison’s The Bluest Eye, but you may not make copies of the book. Because ReDigi cannot function without making copies—and the courts have held since Napster that this form of copying infringes the reproduction right—its attempt to assert a first sale defense to the restriction against reproduction is asking the courts to read something other than what the statute clearly says. In fact, ReDigi is seeking such a dramatic expansion of the law that it not only wants to “stand in the shoes” of the public, but it wants to claim a right the public doesn’t even have.

Either Digital is Different or It Isn’t

What I find amusing about stories like this one is that the tech-utopian, anti-copyright crowd loves to accuse copyright advocates of clinging to buggy-whip paradigms in a automobile world.  Yet when there is a potentially profitable outcome, these same pundits are happy to support “innovators” who whack cars with buggy whips all the time.  Copyrighted works that are fixed in physical objects are fundamentally different from works fixed as digital files, and contemporary copyright law must recognize this difference.  To be blunt, the intangible digital file obliterates the whole idea of a secondary market.

There’s no such thing as a “used” digital copy, which is more properly called a clone, because it is identical in every way to the original file and not subject to the degradation—or for that matter, the appreciation—associated with creative works that are fixed in physical objects like books, albums, etc. Nobody will ever enter a rare bookshop and sell her “first edition” ones and zeroes that represent the poems of Dylan Thomas. No father will pass along his digital file of Dark Side of the Moon to his son and feel the gift imbued with the same meaning as a vinyl album that has been lovingly preserved.

Both intrinsic and sentimental value is lost through digital, with works now “fixed” as intangibly as the copyrights that are supposed to protect them. This is why it is more essential than ever to understand what copyright protects:  because authors can no longer rely on the natural barriers to infringement created by physical objects.

What we consumers get in lieu of physical treasures—for better or worse—are more flexible ways to experience more works, and at very low prices. In fact, the idea that I can legally stream a large library of musical works on demand for about $9/month suggests that ReDigi’s proposal is kind of a buggy-whip concept itself—seeking to trade stored files in a world gone streaming. Ultimately, ReDigi does not provide the market with anything that justifies the scope of revision it seeks, in the service of its own short-term gain, to the copyright law.

The concept that is usually lost in these conversations, as people focus on the immediate ends they want to achieve, is that copyright’s exceptions must be weighed against its original purpose. And this has always been true as the law confronts each new technological change.  As the first sale principle was articulated a century and half ago in a world very much composed of physical objects, it is easy to imagine that the doctrine itself would simply never be considered in a market that looks like the one we have now.

While many consumers may feel that any price above zero for creative works is too high, the fact remains that there is a price threshold below which we can destroy the incentive to create and distribute, which is the reason we have copyrights in the first place. By making available identical, digital products for lower prices not negotiated by producers, the ReDigi model would further degrade one of the already-limited channels of distribution that actually compensate authors for their work.

A Free Press Needs to Be Expensive

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Photo by stocksnapper

As a follow-up to my last post, I see that the Electronic Frontier Foundation has (not surprisingly) also accused the News Media Alliance (NMA) of petitioning the incoming administration to “weaken fair use doctrine” and, by extension, threaten press freedom itself.  Granted, in contrast to Mike Masnick’s ad hominem style on Techdirt, when EFF obfuscates, they usually write a more sober, mature-sounding article, but readers should not be mesmerized by the parlor trick.  Because they’re still not telling the whole truth.

At a time when Americans are suddenly realizing that professional journalism may be more important—and more under siege—than ever, both citizens and advocacy groups like EFF should remember that good journalism is expensive.  If we don’t want news to devolve entirely to the glib gotchas of Twitter, then somebody has to invest in the reporters, researchers, editors, etc. who develop the skills and experience to cover stories with integrity.  In order to make those investments possible, to say nothing of profitable, publishers have to retain the right to protect and exploit the products of this labor through distribution models of their choosing.  So, while fair use doctrine is unequivocally necessary for journalism, this reality is not in conflict with the need for news publishers to protect their copyright interests at the same time.

Frankly, in light of the fact that the anti-copyright policies advocated by EFF and similar organizations have played a substantial role in creating information havoc, like the fake news problem, I think when it comes to the press, these groups ought to be rubbing gravel in their hair—or at least sent to their rooms to think about what they’ve done. Years of blind—and greedy—advocacy of anything goes under the ambit of the First Amendment is a major reason why real journalists have to compete with bogus ones,  and why news organizations continue to have their investments threatened by various platforms and tech interests that appropriate their work.

In the EFF’s version of accusing the NMA of trying to weaken the fair use doctrine, they  set up a straw man and then point to a bunch of unrelated “evidence” to support the accusation.  As stated in my last post, the NMA’s white paper does not seek any revision to the fair use principle, but it does call into question the relatively recent, broadening interpretation of the “transformative” standard within fair use analyses.  The EFF article might give readers the impression that this standard is a well-grounded and longstanding legal principle, but that simply isn’t the case.

If we bracket the “transformative” standard between the first major application in Campbell (1994) and the most high-profile, current case, Google Books (2016), we see that we’re dealing with two very different meanings of the word “transformative.” ”Transformativeness” in Campbell entails a use to create a new expression while “transformativeness” in Google Books entails a use to create a new service that is not an expression. While both uses can be valuable, and even described colloquially as “transformative,” it is misleading to suggest that the case law in which this standard has been applied is consistent, given the divergent meanings of the term.

It is the application of the latter standard that is of concern to many rights holders, including news publishers. This is because the latter interpretation substantially alters the original intent of fair use, which is to favor the First Amendment, to a more generalized standard of “creating some new thing,” which may not be a form of expression at all. It is also worth noting that most uses by journalists have always been protected by fair use principles that existed prior to the introduction of the “transformative” standard by Pierre Leval in his 1990 Harvard Law Review paper.

The truly insidious part of this story is that the EFF has been directly responsible for morphing fair use doctrine in both the courts and the court of public opinion.  With its decade-long boondoggle in Lenz v UMG, and its chronic implication that fair use is the antithesis of copyright (rather than an important component of copyright), the EFF fails to recognize that its advocacy in this regard can be more harmful to free expression and a free press than the concerns it claims to address.  While the organization defends the role of aggregators and other platforms that make uses of works they did not author, the EFF ignores some of the very negative results of this policy, which have become starkly manifest in recent weeks.

For instance, the violent assaults on a Washington, DC pizzeria as the consequence of fake news is not exclusively a story about criminal instigators and idiot readers. It is symptomatic of a disease caused when serious journalism is given equal footing with the ravings of every crackpot or miscreant with a keyboard.  This trend has been toxic for the press, and it is naive to think that defending every use and every expression on First Amendment grounds has not been an aggravating factor in this case.

In some instances, news aggregators do not merely provide access to news, but they often strip news of context or substance by repackaging segments in a manner that may be good for driving traffic but do disservice to the goals of journalism.   Press freedom is utterly meaningless unless we support a professional press, and the News Media Alliance is correct to observe that relatively recent distortions of the fair use principle have played a role in threatening that professionalism.