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.
I've posted a couple of pieces like this already (Scalzi here, and Molly Crabapple here) but I wanted to visit with Boekbinder's piece for two reasons: one is the core argument she's making and two is what I think we're seeing happen in 2014.
Boekbinder's core message is simple: you should pay for art because you can. Whether it's $5 or something bigger, you should be putting that money down for things you care about. Crowd-funding, she argues, is not a form of charity. It's self-interest:
The internet has given us all the opportunity to be engaged in the creation of new art and new knowledge without the need to be corporations, advertisers, religions, or governments. Every choice we make, every action we take, every thing we pay for actively builds the world around us.
There's nothing wrong with, to use her example, paying $5 for a cup of coffee. By doing so, you're sending a signal that you want there to be more five-dollar cups of coffee in the world and that's what's likely to happen.
But if you drop $5 into sponsoring some artist you exchange "life for life" (her phrase). The money you give to artists to pursue their craft continues to pay back as your life becomes enriched. As a result, she argues, we should pay for art what we can, not what pre-Internet market forces have determined prices should be. Not only should you take a flyer on new projects by unproven names, but you should consider a more investment-like approach: "When you are offered a pay-what-you-want scale try entering a value true to your life" even if that's paying $100 for a book or album. If you're a person who makes $100 an hour and this work will enrich your life for more than that hour, isn't it worth that much to you?
I continue to think AFP was prescient and the fact that we're seeing several pieces that all are saying similar things indicates that this is the way good stuff of all kinds is going to get made in this century.
Crabapple's essay is about the "foundational myth" of American meritocracy, but along the way she speaks about her own course from being the working daughter of a lower-middle-class single mom to successful artist who can fly first class. She talks about what she needed to do to get where she is and what sort of myths people seem to have about working artists. Let me just quote one bit:
[B]eing an artist means you're in thrall to cash.
My last art show would have been impossible without the money and network of contacts I'd built. I never could have hauled massive slabs of wood up to my old fifth-floor walk-up—never could have painted them in the lightless room I once shared with three roommates. Without an assistant, I never would have had the time to paint my show. Without sponsorships, I never could have afforded the paint. Sometimes, curators look at the work, and say, "Why didn't you ever paint like that before?" I'd answer, "Because no one gave me enough money to be able to."
Crabapple doesn't discount talent - you need to be good enough to get people to give you money for your stuff - but it's the money that makes the art possible.
One of the questions I get asked when I talk about new business models is "What about listener support?" It's been the public radio and TV (NPR, PBS) mantra for decades and it seems pretty straightforward: hold a pledge drive, raise cash, use that cash to make more art, science, radio, documentary, entertainment, etc.goodness that we want.
Kickstarters are cool, and I'm really jazzed that one of my favorite earphone-fillers is going to be coming out more often, but we started with the notion of business model. So it was interesting to me to see that - as of this writing - the current stretch goal for the Kickstarter is "provide health-care premiums for the staff." Because if you're going to run a business you have to think about your people as well as your product and if you believe in listener funding a business then you might think this was a very smart move.
But it's also a risky one - people want to pay for creative product. I want the radio show, or CD, or concert or game or whatever it is that I'm backing with my dollars to be delivered to me. Healthcare, and other so-called overhead expenses of running a business, aren't directly translated into product delivered to me. But if we're serious about promoting new business models, then we need to start getting serious about what it really takes to run a business via these models.
The piece is mostly historical, tracing the rise of broadcast television and the birth of cable. For the most part, the blame is placed on the weird deal that first caused broadcast channels to be free over cable and later led cable and broadcasters to deals in which channel bundles were sold. They do note that there's still controversy over an issue I highlighted in January: what are the actual economics behind cable bundles? It's still clear someone is subsidizing someone, but it's hard to figure out which direction the arrow is pointing. There's a helpful chart on their site graphing out the cost-per-subscriber that cable companies pay to media companies, but that just tells you ESPN costs a lot more than Animal Planet, not whether your fat cable bill involves one subsidizing the other.
Those of us who are over 30 (or a certain age) remember wrangling the rabbit ears and how it was the younger generation who had cable and the older that stuck with broadcast. Now it seems like that process may be repeating itself, leading to the question asked by a youth from the podcast that inspired this post's title.
I'm not even sure "copyist" is a valid word - it means the people (usually in non-Western/non-European countries) who make their living doing as-realistic-as-possible knock-offs of famous branded Western/European goods and art. Sometimes these people are called "imitators" but that doesn't capture the essence of what these people do, which is attempt to produce something that is indistinguishable to the untrained eye from an authentic (see the debate between Kaminska and Salmon) creative item.
Over at Hyperallergic earlier this month Hrag Vartanian reported on an interesting project with copyists . The effort, created by Zhenhan Hao, involved asking Chinese copyists of art, fashion, and other materials, to create something that expressed their own abilities, but using the styles and techniques they employ in their imitative work. Vartanian interviewed Hao about the project. Hao talks about the concept of "imitative creativity" and how he sees it relating to the culture and particularly the educational system in China.
It's a fascinating perspective and insight into something that mainstream media tends to ignore or dismiss out of hand.
That seems like approximately forever, and in a world where most universities require dissertations to be filed and electronically searchable around the time of acceptance or graduation, it is forever. Why then would authors want to lock up their own research for such a length of time? Well, actually, many authors don't. But these historians feel they have to because publishers are reluctant to publish the books based on these dissertations if the original material is freely online and searchable.
As I've mentioned repeatedly, it all comes down to tenure decisions. Historian Ph.D.s need these book publications as important components of their tenure cases - in many cases failing to get such a book done can be enough to torpedo someone's case. This hands enormous power to the publishers to control the free circulation of information that was often developed on the public dime. I think public support of historical scholarship is an excellent idea, but part of that bargain ought to be the timely dissemination of the results, not locking them up on some commercial publisher's schedule.
Unfortunately, the people most affected by this - those newly minted Ph.D.s - are in the worst possible position to effect change in the tenure system. That's why it's so disappointing to see AHA pushing for the right to embargo rather than pushing for changes from publishers and universities. Clearly there needs to be cooperation from all three parties in this: publishers need to make it clear and public that they are not pressuring for embargoes; universities need to be clearer about what factors go into a tenure case; and students need the time and care it takes to turn a research dissertation into the polished and professional volume on which they want to be judged.
Among the *coughwaytoomanycough* YouTube channels I subscribe to are The Vlog Brothers. If you've not seen them, they're a bit hard to describe. Hank and John Green do short videos that are part topical, part conversational (they talk to the viewer by talking to each other) and part humorous. Their presentation is deliberately nerdy and overdramatic - a kind of YouTube vaudeville, and I mean that in the nicest possible way.
Recently, they took on the question of "how can we improve the content on, say, YouTube?" Kind of a small challenge, but anyway, worth talking about. One identifiable problem is that YouTube's major revenue model is advertising and you get advertising dollars through having popular videos. That sounds great until you think about it like this: advertisers don't care about viewers; they care about views. Things that get more views get more ad dollars even if the viewers hate what they're seeing. Good-but-unpopular content is left to suffer and eventually stop being made. If this sound like just about every other pop culture format in the Western world, welcome to the 21st century. Pax David Lowery.
Unlike Mr Lowery, the Vlog Brothers would like to take action to change this system and their chosen method is an Internet tip-jar/subscription service called Subbable (which my brain insists on reading as sub-babble). Subbable allows you to do the traditional one-time donation for content it provides, or you can become a subscriber at an amount you decide to pay. Monthly recurring subscriptions are a lot like magazine subscriptions in the physical world: you pay for content from people you generally like, but without specific advance knowledge of what that content will be. I like WIRED and I subscribe to the magazine; how much of any given issue I read is a little hit-or-miss but overall I figure it's worth my dollars.
The Vlog Brothers have a series of high-school/freshman-college level videos they call "Crash Course." The goal is to make these topics entertaining and present it in snappily digested YouTube style without dumbing down the content. They've come to the end of a two-year funding grant from Google and would like to continue making the videos. Even snappy and fun videos about course-worthy material don't get a lot of ad dollars, which is where you come in. You can go to the (currently in beta) site, look at Crash Course, and decide if you want to pay for the content.
The videos are still hosted on YouTube and still searchable there - nothing moves behind a paywall. Instead, the idea is as stated in the title: here is content you might want and if you want more of it, please pay for it. There are likely to be perks and rewards along the way, but generally the idea is that most of the money gets funneled back into making more content.
It's far from clear that something like this is going to be a sustainable model. The Vlog Brothers may be able to make this work because they have a long history and a solid following for their other YouTube content. But what I find interesting about this is that it's possibly another sign of a shift in the culture. For the first decade or so, a lot of time and energy went into trying to force people to pay for stuff, and that failed massively. A few months ago I predicted we were at the start of the next chapter in the story of the digital revolution. Maybe this chapter will also take a decade to tell, but it feels like the Vlog Brothers are heading the right direction. This is a very 2013 thing to do.
This isn't a core Copyfight story but I continue to be interested in business models.
Start with the classic economic understanding that most tickets to most live events are underpriced. Those of you, like me, who balk at paying 100 dollars and up for a concert probably think I've lost my mind, but bear with me. Theories of supply, demand, and markets say that if something is sold too cheaply someone will realize that and take advantage by buying at the lower price then turning around and re-selling the item at the higher price. In the live music business these people are called "scalpers". Depending on the jurisdiction and even the venue/concert rules scalping may be more or less legal. Sites like Stubhub don't make a big deal about this, but buried in their ToS is this language:
You agree to comply with all applicable local, state, federal and international laws, statutes and regulations regarding use of the Site and Services and the listing, selling, buying, and use of tickets and related passes. This includes, but is not limited to, laws pertaining to pricing your tickets.
That said, the trend nationally has been toward loosening laws on ticket reselling, even as scalpers have developed sophisticated strategies including automated bots and banks of humans to sweep up desirable tickets as soon as they appear. In economic terms, acts that price their tickets below "market" or below the most they could get, are leaving money on the table and the scalpers are picking that money up.
The problem with this isn't just economic, it's also cultural. Musical acts in particular thrive on having a wide and varied fan base, often grown by word of mouth and the connections that develop at live shows. If your friend tells you there's this great singer you have got to see, but your only way of getting in to hear her is to drop $250 for some scalped ticket you may be reluctant to do that. The artist loses out twice - once in that they aren't getting the extra money for that ticket and again when they lose the chance to attract a new fan.
NPR's Planet Money team spent some time with Kid Rock over his war on the scalpers. Kid Rock sings music designed to appeal to a blue-collar audience - exactly the kind of fan that would be shut out by tickets priced at whatever the market could bear. Yes, there are fans who will pay lots more for a Kid Rock show, but Kid Rock can't afford to cater just to them. Doing that would contradict the messages of his music, and frankly it offends his artistic sensibilities. As he says, he's in this business to make a lot of money but not to squeeze every possible dime out of every fan. So what to do?
In response to this situation, Kid Rock has deployed a variety of strategies. One is simply economic: he's flooding the supply side of the market. He'll do more shows and do shows in bigger venues in order to ensure that the supply of tickets is larger. That itself ought to drive down some prices but even then there are more and less desirable seats. The front seats always sell for more. Well, OK, if you pay for it, you ought to be the one picking it up. Using electronic ticketing, artists like Kid Rock (*) and their host venues can require people to show picture IDs and produce the credit cards used to secure the tickets. This effectively removes many of the routes ticket resellers use.
They can also deploy the same electronic tools that scalpers are using, but in reverse. Tickets for concerts can be priced more dynamically, somewhat like the way airline seats are priced. If certain nights aren't selling, the prices can be dropped. Shows in places or on nights that are likely to sell out can be pre-priced higher, but if sales are lagging the prices can be adjusted downward.
I think there are valuable lessons here. Live performance is a key part of many creative artists' business plans. Those performances need to bring in money AND grow the fan bases. They need to be sustainable AND meet the artists' aesthetics. Somewhere in the intersection of economics and culture lie answers and maybe Kid Rock has found one.
(*) I recently went to a show headlined by How To Destroy Angels, Trent Reznor's project/band with his wife. They offered seats to the NiN fan club using very similar terms. Our group had to enter together, show ID's, and couldn't use the "Will Call" facility at the club, in exchange for which we got the tickets at a discount off the general price.
I don't plan to write much about this because I know the named defendants and many of the John Does personally but I wanted to point out how Masnick's column illustrates something important: If you are involved in an IP-related legal action, get a lawyer who knows that part of the business. Monsarrat's lawyer-partner Mark Ishman apparently does not, which results in a serious, and epic-level funny takedown from lawyer Dan Booth. Booth and his firm Booth Sweet LLP (not LLC as printed) have been involved in fighting the Prenda nonsense and thus know a thing or two about copyright laws and their abuses.
A significant chunk of the takedown involves Booth schooling Ishman, who is no doubt a fine lawyer in his own area but appears not to know jack squat about copyright law. If you've got IP litigation on your mind, make sure you've got IP-savvy counsel, too.
As I and others noted back then academic publishing is a gigantic scam in which free labor (peer reviewing) is used to filter works submitted for free by people (researchers) who got other people (usually taxpayers, corporations or endowments) to pay for the research in the first place. All this free and paid-for-by-others stuff is then turned into extremely expensive dead trees by publishers like Elsevier who charge so much that even very rich institutions like Harvard are saying "enough" and refusing to pay more.
Around that time, Tim O'Reilly put his money behind people who included Peter Binfield, the managing editor of PLOS ONE with the goal of changing the game entirely. The result, known as PeerJ, has been hard at work and this week published its first articles, with a pricing model that - to use a much-abused term these days - is majorly disruptive.
PeerJ promises to combine revolutionary low pricing levels (like, USD 99) with high-speed turn-around, addressing two of the worst problems in academic publishing. PLOS ONE has a great pricing model compared to traditional publishers, but PeerJ blows even PLOS ONE out of the water on pricing. Taylor also reports that PeerJ's user experience is first-class, something that ought to attract academics who are still leery of working with non-traditional publishers.
And yet... and yet, I cannot help re-asking the question that I think forms the heart of this problem: what about tenure? Is there any evidence that, five years on, non-traditional journal publications have the weight and impact that traditional journals do? Because Taylor's subhead is about "the moving-prestige-to-open-access dept" and last time I looked open access wasn't granting tenure, and when you submit a grant proposal to DARPA or NIH or your favorite funding source, they still require you to submit a publications list and they still care where you publish.
Yes, PeerJ is bringing revolutionary and much-needed pricing change. But until someone can show me the professors who got tenured publishing in PeerJ or PLOS ONE, there's still going to be a long distance between publication and prestige.
Back in the old days, when P-A was just two people, they ran for a year on donations but as the enterprise grew so did its need for (paid) services such as bandwidth/hosting, and professional staff that have families to support. This is an intersection of two threads that I've talked about in this blog: the need for artists to get paid, and the ongoing change in relationship between digital media audiences and advertisements. I wish them well and look forward to seeing how this comes out.
When the Cartel smashed Napster back in 1999 and I first started blogging about Copyfighting, Paul Tassi wasn't even in high school. Now he's writing for Forbes magazine and he has some very definite things to say about where we are and how he and, I think, his age group peers view this conflict.
His argument is one we've made here for many years: service trumps all. ITunes wasn't the first MP3 service and by many measures wasn't the best. But it had a service orientation, disruptive low pricing, and no friction-inducing mechanisms like subscriptions. The user experience was good. Did the advent of iTunes stop people illegally copying music? Hell no. Did it prove that legal music sales could capture billions of dollars right alongside illegal copying? Hell yes.
Of course, the idea for and implementation of iTunes didn't come from the Cartel. It came from a tech company that is used to existing in a world where competitive value propositions rule the day. Tassi's piece argues that in order to survive, and to combat movie sharing via things like illegal torrents, Hollywood needs to refocus on providing a better user experience. Again, this isn't a new argument. But it's being made in Forbes, not on some random blog nobody reads, and it's being made by a guy who grew up steeped in the anti-piracy jihad of the last decade. And if it wasn't clear that he and his generation couldn't give a rat's ass about this jihad before now, it should be abundantly clear now.
Nearly two years ago I wrote that my most optimistic outcome for the Copyright Wars lay with the next generation. Kids who made remix culture mainstream. Kids who grew up knowing that the digital economy was all about them, marketing to them, getting their attention and if they didn't like the terms of the deal in front of them it was easy to click on to the next deal. I think Tassi is Exhibit A that I was right. Sure, he dings movies and DVDs for being overpriced, just like Roger Ebert and Dan Gillmor. But unlike us old folk he's not just grumbling and then paying out anyway. He's saying "make me a better deal and I'll switch off BitTorrent; fail to make me a better deal and I'm gone."
John Battelle posted an interesting piece to his Searchblog this week describing a surprising personal experience and its relationship to sharing and culture. Battelle has had a hand in founding WIRED, Web 2.0 (the conference), and The Industry Standard, among other things. He's seen more than a few crowds in his day and has a good feel for them. The Searchblog focuses on search, but also on the intersection of media and culture. So it's a little bit of a surprise to find him writing there about his experiences at a Wilco concert, titled "What Happens When Sharing is Turned Off? People Don't Dance."
As he tells the story, he found it incredible that people at the show were mostly not dancing. He says "It was as if the crowd had been admonished to not be too … expressive." In fact, no one had told the crowd not to be expressive, but the band had gotten the venue to enforce a strict "no smartphones" policy. Deprived of the ability to photograph, tweet, capture, and share the experience, the crowd largely shut down.
Battelle muses on the phenomenon, and how these devices have changed our experiences in the past decade or so. Certainly people moved to bands before there we were mobile phones and nobody brings a mobile to a mosh pit. So perhaps Battelle is putting too much emphasis on the device and its influence on social culture. Or maybe not - maybe a rule like "thou shalt not share" is interpreted - even subconsciously - as "thou shalt not experience fully". Concert bootlegs have existed probably as long as people were capable of carrying recording devices and while some people may be perfectly happy in the moment between themselves and the performer maybe that's an isolated experience. Maybe the majority experience is to become fully immersed and to want to share that joy with friends, both present and remote.
The blog post mostly seems to be "rah rah electronic journals in math" which is all well and good. Yay electronic journals. But it misses points I thought I'd raised in my first blog post, which I'll try to summarize here:
What do you expect Elsevier to do? For example, asking them to join the forces opposing the abomination that is ACTA would be a good step in showing they understand why their support of SOPA/PIPA was a mistake.
How do you expect a move to publication in electronic journals to impact the all-important tenure and promotion cases that academics must make? I believe it's the tight binding of sci/tech publications to these key career steps that gives companies like Elsevier extraordinary leverage. Until academics themselves work to break those ties I don't think much is going to change.
There has long been an undercurrent of opposition to the publishing houses that control scientific and technical publication. Unlike other publications that at least nominally pay their contributors, these publishers profit off the free work of researchers, editors, and reviewers - none of whom get paid for their journal work - who are captive to a "publish or perish" ecosystem within academia. The journals are often quite expensive and are sold to libraries in high-priced bundles.
Almost nobody is happy with this arrangement: authors complain that their work is taken and used for someone else's profit; libraries complain that these journals' costs eat up a huge amount of their budgets, which are already tight; publishers complain that they can't make (much) money on this business despite these arrangements.
Even though I'm no longer in the research world I still have many friends and colleagues who are, one of whom sent me a link to "The Cost of Knowledge" petition against Elsevier. The online petition sports over 1100 signatures as of this writing, all active researchers and all pledging not to do more free work for Elsevier unless "they radically change how they operate."
The petition lists three grievances: journal pricing, the practice of forcing libraries to buy large bundles of journals, and Elsevier's corporate support for SOPA/PIPA and similar legislation that is antithetical to free and open information flow. Sadly it doesn't list any specific steps that Elsevier should take that would satisfy the petitioners. As an expression of grievance it's clear, but how Tyler Neylon - the petition organizer - expects things to be different is less clear.
The petition also links to the PolyMath Journal Publishing Reform wiki page, hosted by Michael Nielsen, himself a widely published researcher. The blog page lists no fewer than five separate petitions including "The Cost of Knowledge" all of which are trying to use researcher community people power against the publishers.
Although Nielsen's page lists some successes in getting Elsevier in particular to change its behavior, I am dubious that any of the big sci tech publishers will change their practices. These publishers are just as doomed as every other hardcopy publication in today's world, but they can use their monopoly leverage to stave off that doom for many more years. Asking them to give it up is asking for a form of corporate suicide, which they have no incentive to do. If academics really want things to change then they need to start with their own houses; for example, by changing what gets counted for tenure cases and what weight is given to publication in open and online venues.
I've mentioned the existence of highly respected online specialist communities before. These are places where the top people - as recognized by their peers - go to share and discuss new research ideas. People who are experts within the community know who is contributing good ideas and making a difference in advancing the theory of the field. And I'll bet you it matters not one whit to their tenure cases. Change that, and you stand a chance of breaking the sci/tech publishing stranglehold. Until real action happens on the academic side, petitions remain just symbolic protest.
The first item on the list is titled "DJ Breakdown" and it's a fan-created audio/video remix of Daft Punk's (themselves master remixers) soundtrack tune "Derezzed".
The war over ownership has moved to a new stage - creation becomes not just product but source material. In 2011 you will see more companies moving to co-opt, own, and control the remixers and the remix processes - even the Cartel will have to get involved. You'll continue to see ridiculous takedown notices and attempts to limit what people can do and see and hear. But these are rear-guard actions. The remix, the mash-up, are here to stay. Now the battle moves to who gets to make these on whose terms and what control is laid over the result.
There was a video (now sadly removed by a copyright violation notice from the BBC) that showed Dizzee Rascal joined by Florence of Florence and the Machine live on stage at the Glastonbury Festival that just concluded. Musicians join each other on stage all the time - nothing new here, just going to cover one of their songs with the other artist guesting in, right?
No, sorry. That's not remix culture. Instead what they did was perform a live version of "You Got The Dirty Love" - a remix. I hope that the fan video of the event stays available. It's terrible quality, but as it's from the audience point of view you can clearly tell a few things. For one thing, the audience goes absolutely bananas once they hear what's going on. For another, a large chunk of the audience are singing along, which means they've heard the remix. Certainly you can find enough copies of it posted on YouTube and elsewhere if you want to check.
Let's trace the loop here - two popular artists release tracks, separately. A remix artist takes those tracks and mashes them together. The mash is released and gets popular with fans. The original artists know about the mix and know its hooks, beats, and lyric exchanges well enough to be able to perform it live. The fans are ecstatic to see performers they love playing together and being knowledgeable enough, and hip enough to perform a mash-up for them.
That, ladies and gentlemen? That's remix culture, right there live on the big stage in front of tens of thousands of screaming fans. And you know what else? Fuck copyright. The remix is probably a copyright violation. Posting it all over the Web is probably violating more copyrights. The artists performing it are probably violating the remixer's copyrights, if he has any. It doesn't matter, though. The question is irrelevant.
Now, to be fair, this didn't happen by random chance and it's not just any artists who are doing this sort of thing. Dizzee in particular has been out on tour for several months with The Young Punx backing him up. The Punx have not only spun for Dizzee but they've done live mashes within his performances, playing backing instruments doing such songs as Nirvana's famous "Smells Like Teen Spirit" while Dizzee does his raps a capella over the backing band.
As I've noted before, this is the generational change we've come to. The kids in Glee's high school reproduce, co-opt, adapt, remix, and produce derivative works. In their fantasy world they get to upload stuff to YouTube and become viral heroes. If they put this stuff out on P2P networks in the real world they'd get sued for hundreds of thousands of dollars in statutory damages. But since it's on a network show the whole issue is glossed over.
And you know what? It should be. The urge to share may or may not underlie what has happened but it's inarguable that the generational change has happened.
I don't particularly like Glee-the-show (musicals give me hives, what can I say) but to the extent that they're accurately representing the way today's high schoolers view remix and appropriation my hat is off to them.
If you don't like modern music you're probably going to hate a good chunk of what I blog about this year. I may create a new category tag so people can find or skip these as they wish. However, I think that modern dance music, particularly the mash-up, is one of the most Copyfight-challenging and lively art forms out there. And since it has hit the mainstream media, finally, I expect to see more public culture clashes over it this year.
Today I'd like to introduce you to DJ Earworm, one of the less prolific and most brilliant mash-up artists I've found. He's worked with some original artists, taking tracks directly from their studio masters and creating new pieces from them.
For the past few years he has created a year-end "top of the pops" mix using the Billboard Magazine list of top 25 songs. This past year's "United State of Pop 2009 (Blame It On The Pop)" has gone seriously viral on YouTube, with over 10 million hits last time I checked. That kind of popular spread gets you noticed, and got DJ Earworm a story on CNN, who seem to think that mash-ups are fair use. I highly doubt EMI or any other record label would agree.
The notion that DJ/remixers are just blindly copying or reusing without innovation is just flat-out wrong. Apprentices may copy without much added skill, much as apprentice painters sit and copy masterwork paintings for hours on end to learn their craft. But as they learn they also learn to add their own creative elements and styles, producing new works that are based on the source material in the way so many art forms of past decades have done.
And what the heck, go ahead and push the play button. It's an AWESOME mix.
It's easy to say that mash-ups have been around forever. For at least the last 15 years popular club dance music has featured DJs who use various technologies such as turntables, mixers, and effects boxes to produce sounds using two or more original recordings. Like many "underground" pop phenomena, the mash-up has escaped its original scene and been incorporated into everything from television shows to console games. Lately, even such staid journalistic entities as the Wall Street Journal have taken notice of mash-ups.
Those three links go back to Bootie Blog, one of the past decade's biggest champions of the mash-up. Their dance parties have been hits in cities all over the world and they've joined the ranks of online music bloggers promoting the mash-up art form. Each year they produce a "Best of Bootie..." CD featuring their choices of the best mash-ups of the preceding year. (I don't always agree with their tastes, but that's beside the point.)
This year, their CD drew the attention of EMI Entertainment, which objected to the inclusion of "Nirgaga" a mash-up by DJ Lobsterdust of the recent pop hit "Poker Face" and Nirvana's classic "Smells Like Teen Spirit." (By the way, the track is still available lots of places on the Web; do your own searching.) According to EFF, DJ Lobsterdust was also served with a DMCA takedown notice for this track.
As Bootie rightly point out, the Nirvana track has been mashed all over the place so it's particularly odd to see EMI going after just this one track. Perhaps this is the start of yet another misguided attempt by the Cartel to control the evolution of music. Or maybe they just don't like seeing themselves talked about that way in the WSJ.
I'm sure all of my readers have been reading plenty about the disaster in Haiti. If you're in a position to make some kind of donation to help out, please do so. Every relief expert I've heard talking in the past few days says there is a desperate need for simple cash, which can be used by organizations that already have infrastructure in place to get the most needed supplies to the people who are in the direst need in the shortest amount of time.
My personal choice for donations is MSF/Doctors without Borders. But there are a lot of good people doing their best work in this crisis and you can choose one that meets with your philosophies and practices I'm sure.
Along the way, please be careful of scammers. There are a lot of new Web sites and organizations springing up and sadly some of them are just plain old rip-off artists. If you are unsure of how your money will be used you can visit some third-party rating sites like Charity Navigator that will attempt to give you guidance on charitable organizations based on parsing their income/expense statements, tax-exempt status filings, and so on.
The story talks a little about MP3 compression, which I assume most Copyfight readers understand, and its impact on audio quality. But most of the piece is about how dynamic compression has been used to make everything more uniformly loud. Christopher Clark's infographic accompanying the story illustrates this point in terms of peak sound levels over three decades of hit songs.
And the NPR story asks the interesting question of whether one of the reasons we're buying less music today is because it all sounds so remarkably bland and the same. In the push to make everything noticeable have we created a sound field in which nothing is noticeable and thus nothing motivates us to go out and buy it so we can listen to it again?
I highly recommend clicking through to the YouTube video of the same title, which very clearly illustrates how the push to make everything as loud as possible ends up distorting and homogenizing the music. The video's narrator makes the salient point that in the end you are the one in control of the loudness knob so you can turn it up or down as you see fit, but if you use your loudness knob on something that has already been compressed you lose out on things like punch and even simple sound clarity.
It's interesting to me that at the bottom of it all we find the same conflict that runs through so much of the Copyright Wars - who is in control here? The record producers who want things to be as loud as possible, or the customers with their hands on the dial.
What we have here is not just an argument about how our laws are interpreted. Nor does this appear to be a typical case of an organization attempting to clutch unto itself every right it can grab. This is a clash of cultures, both of which think of themselves as promoting a particular set of social good things, and tangling over the expectations and legal frameworks available to them.
On the one hand, we have BMO and a set of attendees, who seem to feel that what happens at Burning Man should stay at Burning Man. The potential impacts of publishing shots of people running around naked in the desert, and the personal violations of what many consider sacred space, are getting tangled up with talk of commercial exploitation (or use, depending on which side of the fence you sit) and the norm that I own my own photographs or other recordings and can use them. In addition, you have potential conflicts between BMO, which feels it has a "brand" to protect and does aggressively police use of its trademarks - and artists/performers who sink thousand of their own dollars into creation of performances and spaces and artifacts, the publicizing of which can vastly enhance the artists' reputations and careers.
These expectations sit within at least two different cultural frameworks, one of which says that the standards for things like model releases and permission grants should apply, and the other of which says that an event like Burning Man is essentially a private affair, within which the organizers are free to create the rules as they see fit - including rules about making recordings - and people who don't like those rules are free to vote with their feet.
Finally, we layer onto this at least two attempts at legal framing - the DMCA and Creative Commons. The first, as an attempt to top-down legislate how rights-holders should retain their copyrights is pretty roundly regarded as a failure. But there isn't anything better, except maybe Creative Commons which has attempted to craft licensing frameworks that are less restrictive. Since BMO feels that CC doesn't do what it needs, it has nothing else to fall back on except the DMCA and other antiquated legal structures.
What's the right answer here? Heck if I know. CC is certainly not the be-all and end-all of possible licensing arrangements. It needs to grow and evolve - one of the things that makes CC so interesting is that it can grow and evolve and be transnational in ways that US laws cannot and do not. I think that the people on both sides of this argument are good-intentioned and reasonable, which suggests compromise is possible.
Still, I think BMO are fighting a rear-guard action in a losing war. We live in a "facebook culture" where people post everything and anything about their lives and privacy is a quaint notion for graying hippies. People find out they've been broken up with via someone's status update. People follow the minute details of events in real time via Twitter feeds. People want to own their creative works and use them as they see fit and if that includes making a buck then so be it. Burning Man needs to find its place within that cultural shift, not attempt to be some Rock of Gibraltar standing against all tides.
I'm not a burner (person who attends the Burning Man festival) but several of my friends have gone in past years and some will go this year. And more than a few are unhappy with the Terms and Conditions that the festival is attempting to impose on recordings (photos and videos at least, probably audio as well) taken out on the playa.
As the EFF's Corynne McSherry puts it, the terms include a legal "sleight of hand" that will allow the organizers to claim ownership of rights in those recordings, if the person uses them in ways that the organizers don't like. McSherry argues that the Burning Man Organization, which runs the festival, appears to be trying to build up a wall of DMCA-backed bricks to cover itself in all sorts of questionably legal and highly restrictive ways.
Yeah, like THAT's going to work with the attendees.
A new independent film documentary is starting to make the rounds of small theaters and informal showings. Who Does She Think She Is? explores the particular conjunction of female artistry and motherhood, particularly in modern American society.
As a group, women are under-represented in American galleries, shows, and in teaching about American art. Even moreso, women artists who are also mothers are all but invisible.
I have not yet seen the film, but it's been getting good responses from friends who have. Check it out, leave a comment with your impression.
The blog "The Consumerist" apparently has its readership vote for the worst company in America. The blog writers then suggest ways to improve the customer service at the nominated company. Why do I know about this? Because this year, the readers picked as worst the pointy end of the Cartel's jihadist sword: the RIAA.
Of course, the RIAA isn't really a company, it's a trade organization. And customer service really isn't on their agenda. What is on their agenda is passing favorable legislation, like laws creating the crime of attempted piracy. In order to pass laws, you need sock puppets... excuse me, members of Congress. Who, in turn, need money. Lots of money, something the RIAA has and gives out.
The amounts listed are really surprisingly low - Orrin Hatch got a mere USD 6000, a pittance for this once-powerful sock puppet's dutiful service. There are also some disturbing names on the list, such as Ed Markey, whom I'd expect to have better sense than to accept money from extortionists.
Now comes NBC, host of the popular and occasionally risque skit show "Saturday Night Live." Recently the show ran a parody of sappy holiday songs called "Dick in a Box." As you might expect from the title, the song had some bits that weren't exactly censor-friendly and it was edited a bit when originally broadcast. The skit was popular with fans so copies ended up on YouTube. Now the story gets better...
NBC, of course, told YouTube to take down the fan-recorded copies. But instead of just bringing down the hammer (a la CNN) they gave the site a full UNEDITED version to post. Material that couldn't be shown on broadcast TV is included (personally I didn't think it was that big of a deal, but that's not the point of this story).
The point that interests me is that here we have an instance of something I've been arguing for since early Napster days. Big content houses can make use of peer sharing sites to promote brands, build loyalty, expand audiences - all on the cheap and at low risk. NBC has made a very smart move and the contrast with CNN's retrogressive actions only makes that clearer.
Quick followup on Banky's "artistic engagement" with Paris Hilton's new CD. A friend pointed me to Flickr, where a search on the keywords "Banksy" and "Hilton" turns up 58 images of the doctored CD's cover and interior images. At least one aspiring photographer linked to his eBay auction of a copy of the CD, which was removed before I could even bid, let alone win. So I'm still in search of.
The video is mostly Moby reading a prepared statement, but the message is clear: artists and musicians have come down on the side of "net neutrality." They've put their weight behind the fight that savetheinternet.com has been pushing - a neutral 'Net, free to carry all messages, equally - is the only way to continue the benefits we've enjoyed from the past fifteen years of Net expansion.
The Web page linked above has a simple form that you can use to get phone numbers for your Congresscritters. I suggest you use it. Some other links on this event:
How many trademark infringements can you spot in the The Million Dollar Homepage? Among all the ads for free porn, free domain names, and free gambling (only the first click is free), I spot least eBay and Yahoo! logos that don't go to those companies' websites. I can't tell whether they're associated listing services, click-through affiliate links, or phishing expeditions, but I imagine the companies would have a decent trademark claim against someone who used the logos for unrelated commercial gain. Even those offering companion services, such as eBay listing facilitators, might not win with a TM fair use defense.
(We're back, with thanks to Corante for giving us bigger and better hardware.)
Gavin Baker of FreeCulture.org sent me a note asking for people to sign up for their Pledge to boycott DRM campaign. This is really a "no brainer" for me. I cancelled my Sony-BMG membership years ago when they put out their first copy-locked audio disk and I haven't bought a new CD from a store in almost five years. (I do still buy direct from artists/DJs and haunt used-music stores.)
FreeCulture's modest 500 signature goal has been doubled so far and I wouldn't be surprised to see them get 5000 signatures.
Funds will be transferred en bloc to the Red Cross. As with any new organization there are questions as to its legitimacy. Possibly the best part of this are the (apparently) raw and unfiltered commentary flying off the bottom of the page in which this legitimacy is questioned and defended.
This, in my opinion, is what blogs do best - connect people directly and in a living fashion to issues and information of direct personal concern. Good journalism should do that, too, but the blog technology adds a participatory layer.
A couple weeks ago Fred von Lohmann commented in response to my Tori Amos blogging that "Bootleg" will soon be synonymous with "live recording."
Today's proof that Fred was right comes from Pearl Jam (Reuters story here on CNET) who are adding download capability to their purchasable live show recordings. For whatever reason, these live recordings, mixed on the fly, are now known as bootlegs.
Props to Pearl Jam also for offering the downloads in DRM-free formats, as well as putting some of the material into the iTunes store for people who want the best bits without the full concert download lump.
It's Friday, so it must be stupid ideas time again. AP story (here on SiliconValley.com) to the effect that some libraries are "lending" audiobooks via download. The period of lending is controlled via DRM, which locks you out of the file if you run over your time.
This strikes me as a pinnacle of absurdity - lending libraries impose time limits on physical volumes because my possession of the book prevents another patron from reading it. Downloads... um, DON'T. All the patrons could download the same book and no one's having a copy on their hard disk would impede another's listening pleasure.
DRM might be justified if it attempted to prevent a patron making or distributing copies, but if I'm borrowing a book rather than buying it, what difference does it make how long I hold that borrow? Libraries permit patrons to renew or extend the lending period on a physical book, so long as there's no one waiting for it. There is no one sitting around waiting for me to finish listening to my download. Really. I promise.
(I'm not even going to get into the stupidity of having a download system that's incompatible with the majority player used by the community the library is supposed to serve - iPod. It's rather like a US library stocking volumes written solely in French.)
The physical change, of course, is only the surface manifestation. As Donna recently commented in this blog, a battle is ongoing to preserve the essence of libraries. Part of that battle is introducing the resources and capabilities of libraries and librarians to a generation that has come of age with the 'net, sometimes with the Internet/Web as their only or primary information sources. Colleges and universities are attempting to help undergrads connect the new online sources with the traditional written sources.
Interestingly, the article notes that our current version of libraries for undergrad study is not that old. Kris Axtman's story reports that "Harvard University created the first undergraduate library in the 1950s" - this is potentially incorrect. I called Widener (Harvard's Library) and spoke with someone who was a student there in the 1970s. He indicated that he needed a letter from a professor to access the stacks as an undergrad at that time. To some degree it depends on what Axtman meant by "created" I suppose.
The nice fellow at Widener promised to research the question and email me an answer. I'll update this blog entry when he gets back to me. Hooray for librarians!
UPDATE: based on research from Widener and anonymous comment on this entry, it seems that the appropriate date is January 1949 and it was Lamont library. See Lamont Library's history page.
...(and with permission). Neil Gaiman posts about a very cool effort to raise money for the First Amendment Project. A number of "names" in the writing business are auctioning off the opportunity to have your name (and/or physical description) applied to characters or things in literary works, including Stephen King's new novel Cell, a Lemony Snicket book, a Jonathan Lethem Marvel comic, a gravestone in Gaiman's next childrens' book or a LOT more. I counted 16 offers up on the eBay page linked below, and there may be additions coming.
A friend/Tori fan pointed me at the Tori Amos "bootlegs" site. OK, let's see. If it's approved by the artist, created by her record company, officially released, marketed with the full power of the Cartel, that makes it a bootleg precisely how?
Normally I try to get fun stuff to post on Fridays; this one is just a bit late.
Savefile.com is offering free anonymous file uploading (and downloading). Their FAQ explicitly states no copyright-violating material but I'm not sure how they're enforcing it. Still, it beats holy heck out of email attachments.
Rense.com posts on "virtual" street art by English artist Julian Beever. The artist specializes in anamorphic images - that is, images that appear 3D when viewed from the proper angle. Impressive trick, to say the least. For fun, count the number of potential trademark & copyright violations just in this set of sample images.
I find the contrast between the permanence of body art and the transience of street art fascinating. When I look at new legislation, new court rulings, or the other things that fill this blog most days I try to keep in mind the huge variation in forms of expression and the people making those expressions.
This week the BBC will announce there have been more than a million downloads of the symphonies during the month-long scheme. But the initiative has infuriated the bosses of leading classical record companies who argue the offer undermines the value of music and that any further offers would be unfair competition.
The BBC made all nine of the Beethoven symphonies available for free download, with commentary, as part of their Beethoven Experience.
You'd think that arts leaders struggling to expand their market to younger generations would welcome evidence that downloaders want to give classical a try. Any classical afficionado knows that one performance of Beethoven's Ninth isn't a direct substitute for another, just as baseball fans don't stop watching just because they've now seen the Red Sox win the Series. Instead, hearing and appreciating an intial performance is the first step toward wanting to hear the other greats, in concert or on CD. Those pop fans who realize Gianandrea Noseda's Pastorale fits on their iPods may well be moved to try more.
But instead of welcoming this new audience with offerings of their own, the labels complain that downloads are "devaluing the perceived value of music." They make the same error intellectual property maximalists do -- thinking that "exclusion" equals "value." If few people want to pay for your product, it doesn't have much market value, no matter how much you want to charge. The RIAA's 2003 Consumer Profile indicates just 3% of U.S. music purchases were classical, while BPI reports that in the U.K., classical CD sales totaled under 14 million for that year. Against that small market, a million downloads in two weeks is huge. Labels should focus not on the hypothetical hordes who might buy high-priced CDs, but on the real likelihood that free downloads introduce a wider audience of potential purchasers of a wide range of classical music.
I for one, hope the BBC extends this experiment. Listening to the BBC Symphony's Beethoven First now.
CPTech's Michelle Childs brings news of a BBC documentary called "Time Shift: Missing, Believed Wiped" that reveals how copyright-infringing home-tapers helped save a part of British cultural history. Explains Childs on the A2k list:
[The documentary] told the story of the beginning of TV in the UK. As tapes were expensive but content was then thought to be cheap, large numbers of now historically relevant programming was erased so they could reuse the tape. The BFI and the BBC then woke up to their loss and set up a public appeal called Treasure Hunt where they asked collectors (i.e., people who either copied thmeselves or purchased from others) to hand over copies. This has been a great success, with the BBC finding many missing programmes. However, the BBC does not pay the collectors, as what they orginally did was a breach of copyright, but do let them hang out at the BBC archive and choose a copy of something they want. Some collectors are annoyed about this, as the BBC then puts some of these clips onto DVDs and sells them.
It's interesting to note that even a national public service broadcaster could not be the sole documenter of even its own history, and it was the choice of the people who watched to record for personal use certain programming that ensured its survival.
One of the unexpected side-benefits of copyright's (traditionally) "leaky boat" -- you've got a bit of help when you need a bail-out.
PostSecret is either a great hoax or a fantastic exercise in appropriated media and human sociology. People mail in secrets anonymously on postcards. Nominally the cards are homemade, but many of the posted images are commercial and reused. Many of the texts are also cut-and-pasted, ransom-note style. The taking and use of others' images and typography to convey what are supposed to be intensely personal messages is fascinating postmodern commentary. I do think it's slightly disappointing that it's run out of a single centralized blog; imagine PostSecret as done over a P2P network!
Bravo to the students at Free Culture, who have just reached an important milestone: incorporation. As part of the process, they're asking the Internet community for advice on a number of key organizational decisions, while explaining the important role the student movement plays in the battle for a culture in which we can all be active participants:
Only a handful of students want to be activists, but millions of young people want to know more about why Napster got shut down, why their friends are getting sued, why they can share and remix some things and not others, why the TV news talks about celebrity trials rather than the issues in their own communities, how new technologies offer people new ways to participate in their culture and society (and why some people want to stop it), how this process has played out historically, why people can't afford medicines even though theyre cheaply produced, and so on.
These issues are in the news, and in our conversations, every day. We, as a generation, want to know about them. And inevitably, once we learn a bit, we want to stand up for what we see as right, and stand up against what we see as wrong. To bring young people into these discussions, I'm convinced, is at the heart of our mission.
We're incredibly lucky to have these smart, energetic, inspired young people talking face-to-face with other students about these issues. Check out Gavin Baker's post and lend a hand.
Traditional law still permits photojournalists the same rights as the general public - stand in a public place and you can take a picture of anything the naked eye can see. However, newer laws such as the Patriot Act, and agency regulations such as the TSA's regs, may give conflicting or confusing interpretations. With the proliferation of cameras in cellphones and PDAs, it seems likely that we're far from resolving the conflicting interests of artists, journalists, the general public, those who want privacy, and those who want more security.
Fascinating article on the BBC regarding the copyright wars between India and Pakistan (How piracy is entrenched in Pakistan). Turns out that Pakistan is cracking down on copyright infringement of Western movies, but not on movies from India:
"I am sure that at some level, allowing piracy of Indian films was considered a smart act of industrial sabotage by the Pakistani policy makers," says Ameed Riaz, the head of EMI Pakistan.
"Basically, anything that hurt India was considered kosher."
It is no coincidence that the first - little noticed - copyright law adopted in Pakistan in 1962 expressly stated that it did not cover Indian intellectual property.
However, the effect, it seems, was to entrench Bollywood even further in Pakistani culture:
Not just that: Pakistan's fashion and modelling industry has come to be deeply dependent on the Indian film culture.
Event management companies in Karachi that organise weddings for the affluent say that many brides want the wedding stage to resemble a set from a particular movie.
The wedding set from Indian diva Aishwarya Rai's film, Hum Dil De Chuke Sanam, was replicated at so many weddings in Karachi that it became a joke.
Street jargon employed by Bollywood crime characters has become every Pakistani parent's nightmare. Even the mullah in the mosque - if he wants to be popular with his audience - will base his religious anthems on popular Indian film music tunes.
Copyright can be enough of a problem when copyright claimants make unreasonable demands, but sometimes, it's even worse when you can't find the copyright holder at all. Documentaries dont get broadcast; books don't get published; films don't get restored; digital materials don't get archived, all because they use or incorporate works whose owners cant be traced, so there's no one from whom to seek permission. In many cases, orphan works are lost because no one can authorize their use.
Theyve invited us to highlight comments from round 1 to get your creative juices flowing, so here's one from Daniel Callahan, discussing the problems orphanhood poses for those who want to enjoy or study comic book culture:
The comic book industry is usually perceived as composed of two
publishing entities: Marvel and DC Comics. However, there have been many
smaller companies over the last six decades who have entered the market
and later gone out of business.
As such, surviving copies of the titles they published are rare, and
their preservation as works of commercial art is dubious because of
existing copyright laws. Marvel and DC may easily publish a 'reprint'
volume, but a fan or entrepreneur who would like to scan in or republish
comics whose copyright holders cannot be located remains stymied.
A comprehensive preservation project of these works cannot be done
unless and until the status of orphan works is determined by your
office. Since many of these comics books were not printed on paper
designed to survive for decades, there a window of time in which this
preservation can be done. If the status quo remains, we will most likely
lose many books to decay or neglect.
If this sets you to thinking about ways you or others you know have been affected by the "orphan works" problem, head over to OrphanWorks.org, where we've made it easy to submit a reply comment.
In his first trip to California as the nation's attorney general, Alberto R. Gonzales told a group of high school students to just say no to online piracy.
But, for many of the students, the response was to just say "why not?"
During a daylong UCLA seminar featuring Gonzales, students peppered speakers with tough questions about the real effect of piracy. Some even suggested that government should focus more on tackling poverty and improving education than on jailing kids who download movies, music and software.
And the kicker:
Unfazed by the students' skepticism, Gonzales said this was only the beginning of an intensive educational outreach effort. He wanted to let the students know that intellectual property theft was illegal, carried consequences and could permanently stain their records.
"Sitting through a one-hour, two-hour session may not be enough . It takes awhile to educate people," he told reporters later.
Yes, I'm sure a few weeks of "reorientation" in GTMO will do the trick quite nicely...
A nice, if lightweight, piece in the Boston Globe from Stacey M. Perlman on the interpenetration of mobile tech and artistic/cultural expression. She highlights a couple of projects that use location markers and cell phone technology to permit people to share information about places. Each project involves leaving a physical marker with a cell number; when an interested person calls in and enters the marker-specific number, she gets information left by another person. Nominally the information is about the place so marked, but it could be as varied as a restaurant review ("Eat here, it's great!") or an intimate story ("This is the spot where my wife and I first kissed"). The degree of control exercised over the content varies from project to project and these two are only samples out of a vast space that has been evolving for at least the last ten years.
Still, it's interesting to me because I believe art can be used to project forward into what uses may emerge for technologies. Proposals like those made by MGM in its attempt to smash Grokster are not only deleterious to consumers, they're anathema to the creative arts. How could any inventor begin to predict the variety of art projects that will employ his new technology?