Tag: music

Understanding DMCA with help from Michelle Shocked

It is a chronically repeated theme—and therefore a widely held misconception—that the DMCA is solely a mechanism for rights holders to unilaterally and unequivocally remove content from the Web “without due process.” In fact, this belief is so deeply ingrained that just citing the acronym by some journalists and bloggers is sufficient to denote censorship for many readers. We encounter language like censored by DMCA, speech chilled by DMCA, threatened with DMCA, and so on.  Unfortunately, this shorthand only perpetuates a general misunderstanding of what the DMCA is and how it works with regard to the remedies and counter remedies for alleged copyright infringements. As a result, critics who repeat this one-sided narrative can actually wind up frightening some of the very users and creators whose interests they claim to represent.

For starters, it should be understood that the process of sending notices or counter notices under DMCA is not a casual transaction for either sender or receiver.  Senders of takedown notices must declare under penalty of perjury that they are providing accurate information; that they are legally authorized to “act on behalf of the owner…”; and that they have “…a good faith belief that the use of the material is not authorized ….” Likewise, senders of counter notices, which are used to restore or retain contested material online, also must declare under penalty of perjury that they have “a good faith belief that the material was removed or disabled as the result of a mistake or misidentification .…” This can all be rather intimidating for both rights holders and for users of copyrighted material who don’t have access to legal departments—and who might even get all manner of bad advice from colleagues making unqualified assumptions about copyright. While the largest senders of DMCA takedown notices are, naturally, the corporate owners of thousands of works, the reason these entities are able to send out tens of millions of notices with a very small margin of error is that they do have legal departments dedicated to oversight and enforcement of their rights, and they do know what they’re doing.

But when an individual creator—whether amateur or professional—makes use of a work belonging to another individual creator, the possibility always exists that neither party quite knows where they stand legally, which can make DMCA appear rather confusing and spooky, depending on which end of a notice one happens to be on. This is one reason why some of the headline abuses of takedown procedure—the ones typically highlighted by copyright critics—can foster a general worry that DMCA is just a mechanism for censorship. But even in public statements and court filings by internet industry representatives, DMCA takedown abuse cases are cited in the hundreds—sometimes on a worldwide scale—relative to the 100-millionth-takedown-notice milestone, which Google alone reached in 2014. A ratio of less than 1%.

Still, among individuals and small entities, either a takedown notice or a counter-notice can be sent in error, even if the sender states he/she has made a good faith effort to understand the validity of a claim.  But the point I want to emphasize is that the general perception that a DMCA takedown notice is the final word (i.e. lacks due process) is actually a reversal of how the process works.  In fact, as I’ll expand upon with the anecdote to follow, it is the counter notice that is technically the final word within DMCA’s limited mechanisms. After that, if the copyright holder wants a file removed, and the uploader will not cooperate, the copyright holder’s only recourse is a court order pending litigation for copyright infringement presented to the ISP within 10 days of the filing of a counter notice.  So, it is not remotely accurate to describe DMCA as a tool for takedown without due process.  For a more detailed explanation of DMCA mechanisms, read Stephen Carlisle’s article from 2014.

How artist Michelle Shocked’s generosity is being abused by DMCA provisions. And why it matters.

A common category of video on YouTube is the musical cover.  People share these all the time, especially when the video features some adorable kid who’s killing it with her rendition of a popular song.  That most of these videos, which make use of copyrighted works, are not removed from YouTube may be attributed to one of three common factors:  1) that in 2013, YouTube entered into blanket licensing agreements with the major publishers on a vast library of popular music; or 2) that many rights holders of these works are somewhat ambivalent about these incidental uses and/or find the process of takedown too burdensome; or 3) that many rights holders actually enjoy these covers very much and are generally happy to see their work shared in this manner. When conflicts do arise, they tend to be fairly specific, pertaining to some distinct concern on the part of the independent creator who owns his/her copyrights and would, therefore, not be bound or covered by the aforementioned blanket license agreements.

One such artist is the singer/songwriter Michelle Shocked, who has been an adamant crusader on behalf of artists’ rights and is a regular follower of this blog. As serious as she is about protecting copyrights, she also happens to be totally cool with unlicensed YouTube video covers of her songs, as long as the user respects two simple conditions.  The first is that the video not be monetized with advertising because Shocked doesn’t want Google to earn revenue from her work without an agreement. In fact, because of her views on artists’ rights, she works to keep her own live and recorded performances off YouTube even though she is happy to let others publicly perform her songs on the platform.  The second condition is that Shocked prefers that her name not appear in the video file title, but rather in the description crediting her as songwriter/composer. The reasons for this are myriad with regard to maintaining some control over search results (and even monetization) of her name, but suffice to say, it’s her prerogative and an easy enough condition to respect.

So, in the utopian narrative of sharing and remixing and diffusion of culture and ideas—and all that feel-good stuff—Shocked’s two minor conditions for performing her songs without a license in YouTube videos seem both reasonable and entirely consistent with those high-minded aspirations of creativity in the digital-age people keep talking about. Fundamentally, she’s not asking for much effort beyond a little common courtesy, which one would think is also consistent with sharing and caring and so on. In fact, Shocked has had numerous cordial exchanges with online performers of her songs, thanking them for the cover but asking them politely to remove her name from the title. And until recently, all have been happy to comply, grateful to have a friendly exchange with the songwriter.

But this was not the case for one YouTuber, Steve Pierce, who uploaded a video of himself playing Shocked’s song “Memories of East Texas” and used her name in the main title of the video file.  As usual, her first response was to write Pierce, thank him for his “beautiful cover” of her song, and to ask that he kindly remove her name from the title and instead use it in the description.  After some time without a response from him, and seeing no change to the file name, Shocked sent a takedown notice using DMCA procedures and subsequently received notice from YouTube that Pierce filed a counter notice in which he stated his opinion that his video cover performance constitutes a “fair use.”  Now, we have a ballgame, and here’s why:*

In a hypothetical lawsuit, a court would almost certainly deny a fair use defense for an individual’s unlicensed video recording and public distribution of a cover song, as this would appear to effectively throw out the purpose of both the mechanical and public performance rights altogether. My point is not, however, to play amateur legal soothsayer about a hypothetical case but rather to note that Pierce’s invocation of the words “fair use”—for a use otherwise covered by a specific type of compulsory license—seems to be a common habit among non-attorneys of late. But “fair use” is not a magical incantation that will automatically ward off all infringement claims.  In reality, Pierce’s use is not “fair” but instead has been made conditionally available to him by permission of the author. And because he chooses to not respect one of those conditions, the point I’m stressing here is that Shocked is actually quite limited by the mechanisms in DMCA.  Her only recourse is to litigate or let it go.

Because Michelle Shocked owns all her copyrights and has no agreements with YouTube—and because Pierce’s fair use defense would very likely be denied—her claim should theoretically be quite solid.  But the merits of a hypothetical case are secondary to the fact that she never wanted to sue anybody in the first place.  It’s a pain in the butt and very expensive to sue people in federal court. Plus, she has no problem with the content of the video itself, only with the use of her name in the title. So, maybe you’re thinking, “Big deal. So he used her name. Let it go.” In practical terms, perhaps, but in principle not necessarily.

Shocked’s story provides an instructive example of the functional weakness in DMCA for the individual rights holder. And this is why it’s infuriating to independent creators in particular to hear the repeated theme that DMCA is just a big, digital eraser used to summarily remove content from the Web without recourse.  Exactly the opposite is true; DMCA is largely a voluntary mechanism in which the individual creator asks, “Please remove this,” and a perfectly legal response may be, “No. And you can sue me if you don’t like it.”

Moreover, under these circumstances, what is really stopping this user, and therefore YouTube, from ignoring Shocked’s first condition that videos of her works not be monetized by advertising?  Certainly nothing within the scope of the DMCA.  In theory, this would mean that Google could get away with generating revenue from this use despite the artist’s desire to generously share her work with people in a non-commercial context. This is a hypothetical projection in this case, of course, but not if we look more broadly at the ebb and flow of infringements on the YouTube platform over time.  In fact, Google’s monetizing the infringing material its users upload and re-upload is the crux of rights holders’ conflicts with that company; and the neutrality it asserts while earning billions of ad-revenue dollars is one reason many see flaws in the safe harbor provisions of DMCA.

Understanding what DMCA is and how it really works is important, if people really want to claim that they care about the artist and culture more than the big corporation.  In the end, Steve Pierce’s cover song will probably not be heard by millions—or even likely thousands—of listeners; and the video itself will remain one relatively innocuous clip in a sea of billions.  But if we multiply Michelle Shocked’s experience by thousands of independent, fledgling new artists out there, it’s not difficult to see how perpetuating the myth that DMCA skews in favor of rights holders can result in one or two dominant Internet platforms dictating terms to creators in the long run.

*Mr. Pierce’s name was originally misidentified as Martin DX1KAE, which is the type of guitar he’s playing and not his YouTube handle.  See comments from Mr. Pierce in response to this article.

Recorded Music is the MOST Valuable

“That’s one of the great things about music. You can sing a song to 85,000 people and they’ll sing it back for 85,000 different reasons.”  – Dave Grohl, Foo Fighters –

I saw this quote posted on Facebook the other day, and I hope it’s properly attributed because it expresses something I had been thinking about shortly after I and many others criticized the pollyanna NY Times Magazine article by Steven Johnson about two weeks ago.  Because by writing for such a prominent publication, Johnson elevated the economic myth that live performances for musical artists are a legitimate substitute for the near-wholesale devaluation of recorded music in our times.  The suggestion is that the musical artist simply has to tour more in order to make up for the revenue stream that was once generated by sales of recordings; and I have encountered this naive assertion so presumptuously worded as to include sentiments like musical artists “should actually work for a living.” These declarations are made as though the production of sound recordings isn’t work in the first place, or as if the person speaking has any clue about the actual costs, logistics, or wear-and-tear of playing live gigs for any artists smaller than a handful of mega-stars.  And then, of course, there are the songwriters and producers and everyone else involved in creating the recorded song, which first attracted the fan long before he or she ever considered attending a live show.  The bottom line is that, as fans, we care way more about recorded music than live performances, and we all know it.  So, it is in our own self- interest to want a market that supports recorded works in the future.

We tend to talk about these things from the perspective of the artists—that they need to make a living, how they can still make a living, and what kind of living we presume to think they deserve—as if the artists’ experiences are external, and even in opposition, to our own interests as fans.  The assumption is that recorded music will always be available and that it will never be compensated any better than it is right now; so the conversation then turns to these often-fanciful proposals for alternative revenue streams, even supported by dubious applications of data by pundits like Steven Johnson.  But even if the numbers added up—and they absolutely do not—I can’t help noticing what a tragically cynical story this has become.  Because after 15+ years of piracy and rationalized predation by major corporate players vying to be lords of the stream, what we’ve really managed to do as consumers is to undervalue the one musical experience that most of us cherish above all.

Live performances are great.  Even in a small venue where the acoustics suck and the beer is warm, watching performers play favorite songs among an audience of other fans is almost always exciting.  But, by and large, this is not how we form personal relationships with music. We form relationships with songs because they are recorded, because they are portable and are, therefore, with us in our day-to-day lives. This is how certain songs become the soundtrack to our most visceral experiences, both good and bad. It’s why songs we may not even technically like or consciously choose to associate with certain moments become part of a unique playlist that only means what it means to us individually.  It’s why if you ask me and my wife what “our song” is, we have to say “Rock Lobster,” whether we would have it be so or not. It’s why putting my three children to sleep is chronologically “Everybody Plays the Fool” by Aaron Neville; “Into the Mystic” by Van Morrison; and “Hey Mambo” by Dean Martin.   Even as I write this article, I see that a friend—a much younger person—has posted on Facebook that he is coming to terms with the realization that he may actually like the band Squeeze.  How apropos. Since my college years were 1984 – 1988, Squeeze is prominently featured on the soundtrack of that chapter in my life. That’s just how we relate to music.

We are told that scent is the sense most directly linked to memory, but speaking from my own experience, I find aroma often triggers the sensation of a memory I can’t quite identify, while songs are hardwired to my biography with absolute precision. I assume this is most people’s experience with music and feel bad for anyone for whom it is not.  And because these associations are so powerful and, in my opinion, so valuable, I often ignore or at least compartmentalize a lot of agnostic music criticism. Of course, there is real genius and virtuosity that must be recognized, but this is something separate from the serendipitous connections between songs and life’s milestones. So, that first serious, adolescent kiss just might happen while the main title song for the Dukes of Hazard is playing.  I’m just sayin’…it might.

At the start of this holiday weekend, we were in the mood to play a bunch of hits from the days of A.M. radio—those years when as kids we rode around in the backs of station wagons without seat belts, and all the good music played on tinny, monotreme speakers in the center of the dashboard.  And hell yes, it’s cool that a streaming service now enables us to tap into these memories on-demand and play tracks—from the corny to the sublime—that we can blast through the house in 2015. A few songs by Carly Simon naturally made the cut on this playlist; and I think about the enormous contribution of this prolific singer/songwriter, who admits to having painful stage-fright; and I want to throw things at the smug pundits who shruggingly declare, “The market just doesn’t support that anymore.” Because if that’s true, it’s the market that needs fixing.

I don’t think I’ve heard Linda Ronstadt’s rendition of Roy Orbison’s “Blue Bayou” since those low-fi days, when I was too young even to appreciate it, but in surround-sound to my adult ears, it really is a gorgeous version of a classic that should be treasured.  And if you look at the names of the professionals who played and/or sang on her platinum album Simple Dreams and think for a moment that a new Ronstadt somewhere out there will ever produce songs of a similar quality without the investment model we call labels, you simply have no idea how recorded music is produced. But I assure you it has almost nothing to do with the affordability of digital tools.  Like all works, the real investment is in labor, skill, experience, talent, and time. Just because a great recording can be made by one person with some low-cost digital gear, that does not mean we, as listeners, want the range of available recorded works to be so universally limited. To put it another way, yes, a filmmaker can produce a feature with a few friends and an iPhone, but he cannot produce Game of Thrones that way—or really almost any of the films you want to see.

So, while my youngest danced around to “I’m a Believer” by the Monkees, having no idea what he was listening to, I thought about what a streaming subscription costs versus what it should actually be worth to me.  The singles I had cued up in a matter of minutes would have cost about $25 in 1973, which is nearly $143 in 2015, if we factor for inflation.  But a subscription to a near-global catalog of music that turns my sound system into a home jukebox only costs about ten 2015-dollars a month? There’s no way that adds up; and no amount of magical wordplay from the Internet industry can make it add up, especially for the next generation of recording artists, and quite possibly for their fans.

The personal relationships my kids are forming with the music they’re listening to right now will be the basis of their own nostalgia in 20 years.  Yet, despite the fact that this personal interaction with music is as meaningful as it ever has been, the market in which artists are working today insists that their recordings aren’t worth anything. They are told these products are just loss-leaders, which must be produced in order to generate a fan base, which might be convertible into revenue by some means other than direct sales of the product itself. No business model actually works this way; but, of course, a young entrepreneur can operate at a technical loss for a while and have a bit of fun before the numbers start to catch up and reality sets in.  When recorded works themselves cease to be a commodity (i.e. they’re made for the purpose of selling something else), they cease to be the basis for investment, and this can limit the range of creators’ options to collaborate and produce a richer universe of sounds.

But, of course, look at all the work being produced right now, say the tech-industry pundits.  We have a greater variety of music out there than ever before! This is true, which is why critics like me and my friends are called “luddites” and accused of “clinging to old ways.” But in the bigger picture, we are also witnessing very early stages of these market transformations.  The switch from digital downloads to legal streaming is just a few years old; and it is far too early to conclude what the results will be over the next decade or two simply by looking at how creators are trying to respond right now.  Certainly, there are a lot of creators making all kinds of music and putting it out there for us to enjoy, or not; but if a lot of that music is being produced by artists under age 30 and they cannot build sustainable careers over the next decade, we don’t know what the results will be.  What we do know (even with all the horror stories) is that when people invest in the recordings themselves, making bets that these products will be valued, that this model produces a great variety of works for us listeners.

That eldest child whom we put to sleep with Aaron Neville is naturally into metal and punk as a young adult.  And he recently introduced the whole family to an artist who, by all appearances, is what we might realistically call a rising star, though not likely destined to be a mega-star.  Her sound is original, her guitar playing has been critically praised by fellow professionals, she’s touring, selling merch, she’s hot, and she fits the profile of an artist who would traditionally have a 10+ year career with an indie label.  As a colleague of mine with 30 years experience working with indies told me, “Under the old system, I can say with confidence that this artist would have ten times the recording sales she does today. And that would be enough for us to have invested in her career and provide all the support she needs to develop and produce her best work and to support her with marketing, booking, openings for bigger acts, videos, etc. Today, we can’t make that investment.”

The counter-narrative to this indie-label model is that, thanks to the Internet providing a free platform for promotion, the artist can be her own support system, and therefore, “keep 100% of the recording sales” rather than share any of it with that grubby label.  Except the way this translates in reality is that the artist gets to do the work she knows (make music) plus a lot of the work she doesn’t know (marketing, booking, producing, etc.) and “keep 100% of recorded music sales & license fees,” which are now so low that they almost might buy coffee for the people who’ve done her favors in the last month.  By comparison, the “outdated model” was based on a business strategy, in which the indie label says to an artist like this, “You may never make us millions, but we see a way to invest in your career and make that work over the coming decade or so.”

But pretend we don’t care about the artist herself in this narrative. Still, the potential loss to us as fans just might be that kick-your-ass, break-your-heart, can’t-live-without-it album she never produces—because, of course, musicians are mortal except for Keith Richards.  By 35, this hot, punk artist will be another person than she is today. She may be a little burned out on constant touring, or get married, or want a kid, or want to have some kind of personal life beyond producing music for her fans to not pay for.  And wherever life leads her, this narrative will produce new music in her; and there may be some masterwork lurking in the alchemy of 2022.  But because there were never record sales or sustainable license deals for streaming to properly support that label investment model, there’s no way of knowing what she won’t produce in the coming years as a result.

On the other hand, if our assumption is that she’ll produce anyway—because that’s just how artists are or because artists “do better” when they struggle financially—then as so-called fans, we really have become cynics and leeches.  We have no reason to presume that we deserve recorded music for nothing, or next to nothing, just because digital technology makes it possible or because the recording industry has a checkered history. Those are just excuses for our cynicism.  Many of us could not imagine a world without recorded music, so how can anyone so dismissively say that it is of little value?  Probably, the most cynical belief of all is that recorded music—let alone complex, distinctive, and experimental recordings—will always be widely available no matter what market conditions prevail.  This may prove true, but not necessarily.  As long as the product we value most of all is the one for which we are least willing to pay, it seems reasonable to say that the future is anything but certain.

Is Support the Artist the Right Message?

It is common practice for those of us who discuss the rights of creative workers to talk about asking the generation of digital natives to support or respect the artists, not only by not pirating their works but even going so far as to purchase their works if they truly consider themselves fans.  But during a recent conversation that included this theme, I made an observation that ought to be obvious; and it seems to me that us GenXers might owe you millennials an apology.  Because it’s easy to say, “Please support the artists,” but while saying it, we ought to admit that we never had to think about our role as consumers in these terms.  When I’d walk into Tower Records to get a new album, I wasn’t thinking “I’m supporting the band and the songwriters.”  I just wanted the music, and buying it was the only way to get it.  Today, it’s the opposite, and not just for millennials.  The option to listen to music, even legally, without buying any songs is so obvious that almost the only reason to purchase any music, by digital download or on CD, is a conscious choice to support the artists — to pay for altruistic reasons when it isn’t technically necessary.  That is a significant shift in consumer mindset — and of course rationalizing piracy is another matter — but I do sometimes wonder if it’s true that digital natives don’t get it, at least in principle.

There’s no question that concurrent with changes in technology and experience, digital natives have grown up with the mantras of narcissism beat into their heads at very impressionable ages.  And this “give me what I want” attitude certainly applies beyond expectations of free entertainment.  For instance, I recently came across a story contrasting a negative restaurant “review” posted on Yelp and the restaurant owner’s witty response.  The complaint stemmed from the fact that the customer wanted food to go, which this particular restaurant does not offer.  Naive to how selfish she sounds, the author of the complaint felt that her and her husband’s expectations of what they wanted ought to have prevailed over whatever choice the chef/owner of the restaurant had made with regard to his business. You should read the chef’s response because it’s funny, but I draw your attention to this quote from the woman’s complaint:

“This restaurant thinks they’re too good for customers.  They will soon learn that if you ignore customers, they’re going to start ignoring you.”  

Sound familiar?  Remind anyone of the rhetoric coming from Silicon Valley interests insisting that  producers of entertainment media have to wake up and learn to deliver what consumers want the way they want it, or else…?

In fact, I think the chef and his restaurant make a pretty good, non-copyright-enterprise metaphor for the author of a creative work.  This chef has chosen the manner in which he wants to prepare and serve food and has decided that does not include an assault on his labors that occurs when a meal is placed in takeout containers and made to travel.  This isn’t just snobbery; it’s sound business if the chef is invested in cultivating a reputation for a certain quality of cooking with high-value ingredients, completed by appropriate presentation. That reputation isn’t going to be cultivated if thousands of customers in Kansas City think his food is overcooked and tastes a bit like styrofoam.  If he wishes to serve a clientele that is willing to sit down and have a meal the way it’s meant to be prepared, that’s his prerogative as a creator just as it is the market’s prerogative not to go if they don’t like what he has to offer.  But I bet he has plenty of customers.

The point is that despite numerous manifestations like this one in which blind narcissism is fueled by the apparent empowerment of social media’s soap box, I suspect that even most digital natives would side with the chef/owner in this case, perhaps not recognizing that the woman’s selfish rationale echoes the logic used to justify piracy and general access to free media.  The trick, of course, is that rationalizations carry considerable weight when they are repeated en masse after a behavior becomes normalized.  That doesn’t make the rationalization any more sound; it just makes it popular.  Nevertheless, I’m not entirely convinced that “respect” for artists is the key because I suspect the emotional relationship between consumers and creators hasn’t really changed.

Consider the songwriters, who are presently getting screwed by legal streaming services because their fees are subject to outdated statutory rates for plays on these services that are obliterating the need to buy songs or albums.  The songwriters themselves don’t hate streaming; they love Spotify in principle as much as the rest of us do.  How could you not?  But the revenue streams are shrinking, and so are the number of professional songwriters; and neither the economic nor the cultural cost implied should be ignored. Still, I suspect very little has actually changed in the hearts of millennial consumers with regard to their relationship to the songs.

I was just in Nashville, where I went with colleagues to two honky tonks.  In the first, a cover band was playing a lot of rockabilly, and there didn’t seem to be a customer in the place, most of them in their 20s who did not know the words to “Summertime Blues,” co-written by artist Eddie Cochran and Jerry Capehart.  That song is nearly 60 years old.  The second honky tonk featured what might have been the hardest-working cover band I ever saw, playing without a break for hours, rolling one song into the next in a medley drawing upon at least 40 years worth of music history.  This included Steve Miller’s co-written 1973 hit, “The Joker,” which again every millennial in the place seemed to know by heart.

I don’t think the connection between fans and songwriters is any different than it was before the digital age.  To the contrary, given all the hype about “connections” made through technology, it is remarkable to watch a roomful of complete strangers, supposedly the wired generation, all belting out a 41-year-old song together.  That may not seem extraordinary, but I can guarantee that in 1984, my contemporaries were not in clubs or bars singing “Paper Doll” or “Don’t Get Around Much Anymore,” both hits in 1943. Is there a link between stronger artists’ rights, industry growth, and longevity of a song in cultural consciousness?  It would be an interesting set of stats to study.

Odds are, most of the young people in those crowds don’t know who Steve Miller is or who Eddie Cochran was, but they probably don’t know who Sean Parker is either — the man who invented disrespect for music with Napster while these kids were still babies.  Of course, if that’s the rough timeline, who really gave Napster a boost, millennials or us Gen Xers?  After all, we’re the real first adopters of all this tech, so if our kids’ generation takes free stuff for granted, we have to accept some of the blame for that and perhaps stop assuming they don’t care about the artists any more or less than we ever did.

In this regard, I am glad to see the conversation shift toward one in which the extraordinary ideological and economic transformation being led by Silicon Valley billionaires extends way beyond its impact on the creative industries.  As a steady stream of editorials emerge from respected writers that accurately describe the Internet industry as oligarchical, and the digital-native generation continue to confront the reality of shrinking middle-class opportunities (in contrast to the fairy-tale promises of digital gurus), it will be interesting to see how this generation responds to the realization that they’ve been had.  It could get ugly if progressive ideology continues to stray from its historic foundation in human labor, but it doesn’t have to go that way because the alternative is basic, free-market economics.  So, rather than say to the next generation, “Buy an album or a book or a movie to support the artists,” it might make even more sense to say, “Buy these works to support yourselves.”