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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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May 29, 2012

Freehadists, the New Boss, and Another Point of View

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Posted by Alan Wexelblat

David Lowery is not happy with the state of digital music. In this post, derived from his talk at SF Music Tech Summit, he goes into great detail on why he thinks the current model of music making and distribution sucks, and is a worse deal for musicians than the previous system (the old boss).

The post is long on opinions, much of it personal. Lowery has a tech background himself, and has worked as a musician, sound engineer, singer, songwriter, promoter and producer. He founded Cracker and before that Camper Van Beethoven. He is an active participant in archive.org, where he has placed recordings of most of the live shows he and his groups have ever done. He's also worked in finance/economics, and wrote code for the company that became Groupon. Through these experiences he knows a lot about technology and how the nets work. He's also had his share of spats with the big music establishment, including ongoing lawsuits against two of them. He doesn't have the academic throw-weight of, say, a Drew WIlson, but he's painting the picture he sees and reasons from.

That picture is not good, in his view. As he sees it,

[W]hat we artists were promised has not really panned out. Yes in many ways we have more freedom. Artistically this is certainly true. But the music business never transformed into the vibrant marketplace where small stakeholders could compete with multinational conglomerates on an even playing field.

He also has some nasty words for entities we tend to think better of, claiming "Google date rapes the spirit of the law while keeping to the letter." He's got a lot of bile for the Future of Music Coalition, and particularly the EFF:
[I]t is nigh impossible for me to pursue my craft without enriching Apple, Amazon, Facebook and Google. Further the new boss through it’s [sic] surrogates like Electronic Frontier Foundation seems to be waging a cynical PR campaign that equates the unauthorized use of other people’s property (artist’s songs) with freedom.

Since I just blogged about the EFF's latest project in conjunction with Google, let me jump to his objection there. The problem he has with chillingeffects.org is that they post the infringing links in the DMCA takedown notices. As he notes, the URL has disappeared from Google but if you want to find it, you can find it right there on Chilling Effects' Web site.

That's true, but seems to be missing the point. Lowery is tech-savvy enough to know that there's a world of difference between a link appearing in Google search results and appearing on a form copy on a different site. People may find it (and it'll be interesting to see what happens when Google starts including crawls of the Chilling Effects site in its search results) but the alternative seems to be a 1984-esque regime in which one might or might know that some content might or might not have been taken down but we can't tell you what it is, never mind giving you the chance to contest it. Because we know DMCA takedown notices are never sent out maliciously, or in error.

But OK, let's jump back to Lowery's main point, which is that what we have today isn't working for musicians. He says that due to the ease of sharing illegal copies of recordings, "the 99% of the music business has been impoverished." He asserts that artists are spending less on recording now because they have less to spend, that more artists are touring and playing more shows, but for fewer people. Yes, there are a few stand-out success stories like OK Go, but they're the exception, not the majority rule.

Lowery admits that much of his information is anecdotal, but his anecdotes are collected from a pretty wide range of sources. He's not just taking one point and generalizing it out to the whole universe. He says that the reduction in time/money spent recording is the most telling trend:

[T]he only explanation for why artists are spending much less time recording is the obvious one [- they have less money to spend]. Occam’s razor. Every other explanation adds assumptions."

In addition to skewering a few of our favorite cows, he also hits on a couple of points I've made in other Copyfight posts: artists need to get paid, and that includes the large and often invisible team behind the guy in the spotlight. Digital downloads are not returning large amounts to artists. Gatekeeper companies, particularly Apple, are taking a big chunk of the dollars spent through them - in some cases a bigger chunk than a standard label would have taken. Tech companies are astonishingly hypocritical in the cavalier way they treat copyrights and the covetous way they treat their own patents. There's no doubt in my mind that the current state of affairs in digital music isn't great, and that we desperately need sustainable business models and fair methods of compensation. I'm just not willing to buy that the plural of anecdotes is evidence, and therefore illegal copying is the cause of all these problems.

As I mentioned, the column is quite long and I'm obviously cherry-picking a few points here. Go read the whole thing and see if I've summarized him fairly.

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