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Tagged: licensing

The Songwriters Association of Canada Wants To Embrace File Sharing, But Does It Have the Right Approach?

This post originally appeared on Techdirt.

in 2007, the Songwriters Association of Canada gained some international headlines with a proposal to legalize non-commercial peer-to-peer file sharing through an ISP levy. This sort of proposal wasn’t new, but had not been so prominently put forth by an artist organization before. There were serious problems with the proposal, but it stimulated a healthy debate and it started from many correct premises — that file sharing should be embraced, that digital locks and lawsuits were not a way forward, etc. But it was a non-voluntary, “you’re a criminal” tax that could open the floodgates for other industries to demand similar levies.

I was a member of the Songwriters Association of Canada from 2007-2011, and I had the opportunity to express my concerns about the proposal to many people involved. Last year, I attended a session with an update on the proposal, and was surprised how much it had changed. The proposal had dropped the legislative angle in favor of a business to business approach, with an actual opt-out option for both creators and customers of participating ISPs. Unlike groups behind other licensing proposals, the SAC has actually been responsive to many concerns, and unlike other artist groups, the SAC takes a decidedly positive view on sharing music and the opportunities technology provides to creators. This attitude comes through in the proposal:

Rather than a legislative approach to the monetization of music file-sharing as we originally envisioned, the S.A.C. is now focused on a “business to business” model that requires no new legislation be enacted in Canada.

Our basic belief however remains the same: Music file-sharing is a vibrant, open, global distribution system for music of all kinds, and presents a tremendous opportunity to both creators and rights-holders. […]

People have always shared music and always will. The music we share defines who we are, and who our friends and peers are. The importance of music in the fabric of our own culture, as well as those around the world, is inextricably bound to the experience of sharing. [emphasis changed]

As the copyright debate heats up again in Canada in light of SOPA and new pressures on pending legislation, this positive attitude towards peer-to-peer file sharing was expressed again in a recent TorrentFreak interview with the SAC VP, Jean-Robert Bisaillon:

We think the practice [of file-sharing] is great and unstoppable. This is why we want to establish a regime that allows everyone to keep on doing it without stigmatizing the public and, instead, find a way for artists and rights holders to be fairly compensated for the music files that are being shared. […]

Other positive aspects include being able to find music that is not available in the commercial realm offer, finding a higher quality of digital files, being able to afford music even if you are poor and being able to discover new artists or recommend them to friends. […]

Music is much better off with the Web. The internet network allows for musical discovery despite distance and time of the day. It has sparked collaborations between musicians unimaginable before. It has helped artists to book international tours without expensive long-distances charges and postal delays we knew before. [emphasis added]

However, significant problems remain with the proposal. For example, the original criticism still stands as to how this would scale for other industries — what about book publishers, newspapers, movie studies, video game manufacturers and other industries that are also crying foul about “piracy”? The SAC dismisses other cultural industries pretty quickly, as if only the music industry is concerned about unauthorized copying. And, just like private copying levies have suffered from scope creep, as people no longer buy blank audio cassettes or CDs, or short-sightedness, as technology changes rapidly, it’s not clear how the SAC model would adapt to growing wireless and mobile computing or more distributed file sharing. Many more questions remain: Would small, independent artists, who are not charting through traditional means, get fair treatment? Is it wise to largely rely on a single, proprietary vendor, Big Champagne, for tracking all distribution? Would consumers be paying multiple times for music? What does it mean to “self-declare not to music file-share” in order to opt-out?

But the central problem with the proposal is the SAC’s copyright crutch. Jean-Robert Bisaillon says things like,

The Internet has dramatically increased the private non-commercial sharing of music, which we support. All that is missing a means to compensate music creators for this massive use of their work. [emphasis added]

And the proposal says things like,

Once a fair and reasonable monetization system is in place, all stakeholders including consumers and Internet service providers will benefit substantially. [emphasis added]

The SAC seems obsessed with a “monetization system,” when the truth is there is no one model, no magic bullet. Rather, the the sky is rising and the path to success involves all sorts of different models and creative approaches, most of which don’t depend on copyright or worrying about getting paid for every use. Even a voluntary license plan is still a bad idea. The means to compensate music creators isn’t missing, it’s just increasingly found outside of copyright.

Still, it’s important for the SAC’s voice to be heard as the copyright debate heats up again in Canada. As a creator group offering a positive take on peer-to-peer file sharing, and denouncing an “adversarial relationship” between creators and fans, they offer an important counterpoint to the SOPA-style provisions being pushed by Canadian record industry groups. I would take the SAC’s constructive and responsive approach over record industry astroturfing and fear mongering any day.

Read the comments on Techdirt.

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Four Criteria for Free Network Services

I’m increasingly critical of network services — software that you use on someone else’s server to do your own computing. We rely on computers more and more for our work, social lives, civic engagement, health, education and leisure, and more and more that means relying on networking services rather than our own personal computers. There are serious trade-offs to living as a tenant online, rather than a property owner. I’ve been reconsidering the network services I use and rely on, especially in the shift to mobile computing.

The work of Autonomo.us has heavily influenced my thinking. Also of note is Stallman’s essay on software as a service (though he does more to identify the problems than recommend solutions). I essentially agree with the Franklin Street Statement from Autonomo.us. As a user of network services, I’ve narrowed it down to four major criteria to look for when deciding whether to trust a service on freedom and autonomy.

  1. Free (libre) software
  2. Control over data
  3. Privacy / Encryption
  4. Distributed Systems

Note: This is more of a working list than an attempt at a formal definition. For example, I’m not sure that #3 and #4 should be required, even though I believe they are important. Feedback is welcome.

1. Free (libre) software

Free (libre) or open source software licenses designed for network services, like the GNU AGPL, help guarantee the software will respect users’ freedoms. The arguments for software freedom have been addressed at length elsewhere, but the freedom to run the software yourself is particularly relevant here since, unlike desktop software, you often have the choice of letting someone else run the software for you. Even if you don’t run the software on your own server, having the freedom to do so ensures that you can still run the service in the event that the service provider shuts down — a frequent concern with proprietary web startups after acquisition or failure. And, even if you can’t run the software yourself, with all four freedoms, chances are someone else will. The broader case for software freedom is made at length elsewhere.

Network services should respect users’ freedoms. LibreProjects.net has a good list of free web services and alternatives.

2. Control over data

If users want to leave a service provider, can they take their data with them? Open standards are important. Open standards allow other software to read and understand your data. Open standards also allow you to mix the software you use on the client and server or across multiple devices more easily. Not only does this make migration more realistic, but it makes transitions smoother.

Google’s network services aren’t often free (libre) software, but Google does have a strong commitment to open standards and making your data easily available. I’ve used many Google services from non-Google clients: Gmail from Thunderbird, Evolution and Modest; Google Calendar from Lightning, Evolution, and my N900; Google Reader from Liferea and grr; Google Talk from Empathy, Pidgin, and my N900, etc. I’ve been able to switch my client-side software before changing the back-end. This makes it possible to transition to new services gradually, in smaller steps, with less disruption.

Facebook has a download feature, but it’s slow, and it just chucks all of your data into a giant zip file rather than putting it into formats that other software or services could understand. Facebook has also actively blocked services that export your data to other providers. Your data is available for download, but not in a very useful way.

Migrations are not always planned. On your own server, you have the master key. With a service provider, if you lose access to your account because it’s cracked or cancelled suddenly, will you also lose access to your data? Or will you have an up-to-date copy locally? Open standards often help make it possible to keep a local copy up-to-date, but this isn’t always the default way we use these services. A synchronization service will typically maintain a complete local copy of your data, but services intended to be accessed through the web often require additional client-side set up
on the user’s part to make this happen (e.g. using Thunderbird or OfflineIMAP to keep a local copy of your Gmail email, or using Google Sync to keep a local copy of your calendar and contacts). Or, the services may only offer data dumps as backup. Does a service let you keep a complete local copy of your data easily in your everyday usage? Even if you primarily use the web interface, setting up a desktop client for regular use can help maintain a local copy of your data without having to consciously download backups.

Lastly, public data that is intended to be shared should be available under a free and open licence. Identi.ca uses CC BY for public user data. Libre.fm focuses on freely licensed music. This gives control over public content to the community, rather than just the service provider.

Network services should let users control their data, using open standards to give users control of their personal data and free licences to give the community control over public data. Despite having a very mixed record on other criteria, Google is a good example of open standards done right. Free (libre) and open source tools are also usually good with open standards. Identi.ca is a good example of licensing public data freely.

3. Privacy / Encryption

My concern with privacy isn’t so much what a service provider’s policies are, but who has access to the data in the first place.

With the launch of Google+, I’ve been quite relieved that I’ve moved a lot of my important data out of Google over the past few years. It’s one thing for Google to have my email or my social graph or my documents, but the volume of data that would be in one place using all of Google’s services is astounding. Google is generally a well-meaning company, but I wouldn’t want any single organization to have everything that Google might have: my email (love letters, job applications…), address book (contacts and their private information), documents (budget, resume, business plans), calendar (activities, habits, regular whereabouts), RSS feeds (passions, interests, and political, intellectual, religious leanings), instant messaging (chat logs with friends, lovers, co-workers), my social graph (strong ties, relationships), my phone calls (the ability to recognize my voice from Google Talk or Google Voice), my photos (facial recognition and identification of my family, friends, colleagues) — nevermind all of the revealing personal information contained in web searches! There are lots of questions regarding each type of data and whether or not you’d want to trust it with someone else, but the aggregation of all of it into a single account is a more noticably bad idea. It’s a recipe for disaster in the event of a privacy leak or breach, oppressive government actions, a supeona, the loss or revocation of your account, etc.

Furthermore, some things I simply don’t want on someone else’s computer ever. I’ve felt comfortable trusting service providers like Google with my email in the past, but I’ve never been comfortable trusting them with my entire address book — that’s not just my data, but other people’s private information too. Similarly, I would never want my personal journal on someone else’s computer — that’s just too private.

However, Mozilla does a fantastic job of handling private data. With Mozilla Weave (i.e. Firefox Sync), not only is it free (libre) software that you can run on your own server, but your data is encrypted on the server. A user has two passwords — one to authenticate with the server, another to encrypt the data locally. Since encryption happens locally, the server only sees the encrypted data and never sees your second password. Mozilla doesn’t even ask for the information to decrypt your Firefox Sync data. You can use their server to sync your data across computers, but it’s only ever decrypted on your computers, not the server. If you use Mozilla’s server instead of your own, Mozilla still won’t have access to your data.

I wish more services providers would do this. I understand it doesn’t work for services that are meant to be accessed directly on the server through the web, but at least for synchronization services it seems like a privacy no-brainer. Funambol, for example, is a great libre software data synchronization server for mobile devices, but I don’t think their gratis service at my.funambol.com encrypts your data. I suppose they have a web interface on their server, but I’d rather run my own Funambol server in the absence of Weave-style encryption, whereas I don’t mind using Mozilla’s Firefox Sync service at all.

Encryption of data in transit is another concern. Does a network service or web application offer encrypted methods of communication? Or is your private data being transmitted out in the open? Gmail now offers HTTPS by default. Facebook and Twitter offer an “Always use HTTPS” setting. The EFF has developed a Firefox add-on that uses HTTPS wherever possible. I’ve started using basic StartSSL Class 1 certificates, which are available at no cost to individuals, in order to encrypt traffic on my home servers.

A good network service should take privacy seriously, and offer encryption wherever possible. I’m not sure that this should be a requirement for a free network service, but it’s an important consideration before using a service hosted by somebody else. However, a service that may fail to adequately protect your privacy as a hosted service could still provide an acceptable self-hosted solution.

4. Distributed Systems

Email is a common example of a distributed set of protocols. If Bob uses Hotmail and Sally uses Gmail, they can still communicate with each other. Telephony provides another example; Bell customers can phone Rogers customers, and vice versa. This is the ideal — choosing a service provider independently from the people with whom you want to communicate. Distributed systems strengthen the Internet, creating fewer points of failure or censorship, more opportunities for expression and innovation, more freedom and autonomy for users. This isn’t always relevant for network tools or synchronization services aimed at individuals or small groups compared to social network services and communications tools.

Most online social networking services are walled gardens. Facebook users can only talk to other Facebook users, MySpace users can only talk to other MySpace users, etc. In this environment, social pressure has negative effects on freedom and autonomy. You might not feel comfortable using Facebook, but if that’s where your social circles are active, you’re faced with the choice of being left out or using a service provider with which you’re uncomfortable.

Google Talk makes it clear that it doesn’t have to be this way. Rather than developing their own proprietary walled garden instant messaging service, Google used the open standard XMPP (aka Jabber) for its chat service. With XMPP, you can chat with people on other servers. I have a Jabber account on my own server (and there are dozens of public Jabber servers), and I can still talk with (or call) people on Gmail Chat. I’ve left Google Talk, but I’m not cut off from Google Talk users. Compare that to Skype, which has so far relied on a proprietary VoIP protocol that only lets Skype users call other Skype users (short of bridging to traditional telephony).

In the social networking space, there are efforts like GNU Social/StatusNet and Diaspora to develop distributed solutions. StatusNet has already had some success implementing an open standard for distributed status updates. I’m curious whether Google+ might advance the cause of distributed social networking services (even slightly), given Google’s commitment to distributed systems and open standards elsewhere, and their development of new standards like OpenSocial.

Social network services should be distributed, allowing users to communicate across service providers. Email, traditional telephony, XMPP/Google Talk and GNU Social/Diaspora are all good examples of this. I’m not sure that this should be a strict requirement for a free network service, but the freedom to run the software on your own server is pretty useless for some social applications if you can’t communicate with people on other servers.

Conclusion

Identi.ca, the flagship StatusNet site, is a perfect example of a free network service. It’s free software (AGPL), implements open standards and documented APIs for accessing your data, they’ve pioneered an open standard for distributed networking, and public updates are licensed freely. I’m happy to use Identi.ca.

Mozilla’s Firefox Sync is a good example of a free network synchronization service. Data is encrypted, it’s free software that can be run on another server, and bookmarks are stored locally in a format that other applications can read. I’m comfortable using Mozilla’s service for Firefox Sync.

AGPL network sync services like Funambol and Snowy are also libre services (free software, open standards or documented formats), but in the absence of Mozilla-style encryption, I’d prefer to run them on my own server. The FreedomBox Foundation has been working on an easy way to run libre services from a home server, and make them available to others. I currently use a combination of always-on GNU/Linux home computers available remotely and some dedicated servers that I manage. Even without your own server, you can use free (or more freedom-friendly) hosted services like riseup.net for email, jabber.org or others for instant messaging, my.funambol.com for mobile sync, Mozilla Firefox Sync for bookmarks and browser data, Identi.ca over Twitter, Voip.ms (SIP) over Skype, Libre.fm over Last.fm, etc. If you’re looking to try out some of the self-hosted services, I do have Snowy, Funambol, and Tiny Tiny RSS running on my home server — contact me if you’d like an account to try them out.

The process of disentangling from proprietary network services can take some time, but it’s well worth it for the sake of freedom and autonomy, even when it may be challenging in the short-run. If you can’t leave a proprietary service right away, recognizing where it fails to meet these criteria can help you take some important steps in the meantime.

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Taking a Free Culture Approach to Music

This post originally appeared on Roots Music Canada.

When I tell someone that all of my recordings are downloadable for free, I’m often asked, “but… how will you make money?

“Well,” I’ll respond, “since it doesn’t cost me anything, I may as well let people share and listen to my music so that they might connect with it and become interested in the associated scarcities—physical goods, the creation of new music, authenticity, personalization, live performances, etc… It makes more sense to charge for the scarce things than for the abundant. People need to hear and like music before they’re willing to buy, so I want people to download it.”

“Okay,” a musician might respond, “and you still have royalties and licensing.”

The fun begins: “Er… no, actually, my music is available royalty-free, even for commercial use.”

“Huh?”

“Yep,” I’ll continue. “There are only two requirements: attribution, and that derivative works remain under the same licence. Otherwise, people are free to do what they want.”

At this point, the person I’m talking to is either incredibly curious, or convinced that I’m certifiably insane.

Why on earth would I do this?

Copyright Conundrum

Copyright is supposed to provide an incentive for authors to create because we, as a society, see a benefit in more works being created. However, it’s been radically expanded in both depth and breadth. Unlike the original 14-year terms, copyright now extends well beyond the author’s death; works used to enter the public domain within a few decades, but now it takes a few generations. Also, it used to be that copyright only regulated large corporations—you needed a printing press or a broadcast tower to trigger the law—but now it affects the everyday activities of anyone with a computer.

It’s become an astonishingly unprecedented restriction on our culture. Can you imagine if Shakespeare had to negotiate licensing agreements for each of the stories he repurposed? Yet, some seek to criminalize sharing and we must hire lawyers to get permission just to build on the culture around us. We must pay [PDF] for the privilege of dancing to copyrighted music. James Boyle, author of The Public Domain, said that “we are the first generation to deny our own culture to ourselves.” Society has become too focused on the unnatural notion of “intellectual property.”

20th-century culture was largely passive and read-only—a broadcast culture. But it’s wonderful and natural that we seek to reinterpret and build upon the culture we find around us, and it’s exciting that digital technology makes it easier. Creation is a fundamentally social act—not a solitary one—and its social dimension is something to be celebrated; it’s a beautiful expression of our humanity. I embrace an active culture with which we all have the freedom to engage… but current copyright law makes that illegal. James Boyle also points out that “no work created during your lifetime will, without conscious action by its creator, become available for you to build upon.”

As a creator, I’ve taken that conscious action to set my work free.

Free Culture

I use a Creative Commons (CC) Attribution-Share Alike (BY-SA) licence for all of my music and writing (including this post). CC BY-SA is a free licence—not free as in price, but free as in freedom. A free culture is the opposite of a permission culture: anyone has the freedom to use, share, remix, cover, rewrite or adapt my music.

Now, “remix” can be a funny word for songwriters. For some, the immediate word association is “techno,” but derivative works can include music videos, films, new songs, covers, as well as recordings that are “remixed” in the strict technical sense. I can also take freely licensed photos from Flickr to use as artwork for my songs. “Free culture” isn’t about quirky viral videos and the responses they inspire, but the broad spectrum of possibilities when freedom and collaboration can scale. Using a free licence opens up new potential for creating art and connecting with fans by removing the legal barriers to artistic freedom and widespread collaboration.

Commercial Use

Free licences allow commercial use: my music can be sold—by me, or anyone else—and I’ve waived the right to collect royalties. This was by far the biggest hurdle.

Most CC licences aren’t free. I initially used a Noncommercial (NC) licence with my band back in 2005—that seemed like a no-brainer at the time—but I later became convinced of the problems with NC restrictions. For example, NC restrictions limit derivative works to the realm of the hobbyist; once money enters the equation, NC licences still present a permission culture (hence their non-free status). Plus, NC restrictions rule out many basic uses you might want to allow: a blog with ads or a non-profit fundraiser could both qualify as commercial, and a remix of your own NC music by someone else is off-limits to you commercially. NC restrictions don’t allow a free culture to flourish… but, they do leave the door open for music licensing opportunities.

Giving up the prospect of royalties and licensing was hard. Ultimately, I decided that free culture and new media were more important for me. Copyright restrictions apply to bloggers and webcasters as well as radio stations, and SOCAN collects from large corporate radio, but also from kids’ gymnastic clubs and buskers. I’d rather focus on free culture and the Internet as a passion and competitive edge than be confined by a read-only, broadcast-based permission model. Royalties make as much sense on the Internet as they would in a conversation; it’s not broadcast, it’s a communications medium. I’ve decided to go the free culture route with the Internet in mind, even if it means no royalties from traditional mediums.

Exploitation

CC BY-SA is a “copyleft” licence—meaning, all rights reversed; it imposes a copyright restriction against restricting people: all derivative works must be released under the same licence. Someone is free to include my music in a video and sell it, but the derivative work must also be BY-SA, so I’d be able to profit from the derivative in the same way that people can profit from my original. It’s mutually beneficial. (If someone wanted to use my work without “sharing alike,” e.g. a TV show, with many other rights holders involved, that’s one case where traditional licensing is still an option.)

In terms of someone else just selling my stuff (e.g. CDs with my music), I’ve come to view that as an opportunity rather than a liability. If Sony wanted to distribute my music, with no cost or contract on my part… who am I to complain? They’d be helping me. CC BY-SA filmmaker, Nina Paley, argues that when others make money off your content, it’s free market research. “If any [competitors] do exceptionally well, I’ll know what merch I should be selling,” she says. Paley uses the Creator-Endorsed Mark to signal to consumers which distributors are actually sharing profits with her. Brad Sucks, a Canadian BY-SA musician, has also found ways to profit while allowing commercial use.

If you’re focused on innovating and monetizing real scarcities, allowing commercial use simply presents new opportunities.

Moving Forward

Licensing my music freely was a huge decision, and I’ve only scratched the surface of my reasoning here. I may have closed many doors, but I’m excited about the doors I’ve opened. This approach isn’t going to work for everyone, but with artists like Nina Paley and Brad Sucks paving the way, I’m committed to exploring how it can work for my music.

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ASCAP Thinks That Video Game Providers Should Pay Music Performance Royalties

This post originally appeared on Techdirt.

Despite claiming to represent the interests of songwriters and composers, ASCAP has consistently provided bad advice on how they should respond to digital technology and the internet. For ASCAP and many other collection societies, anything that doesn’t involve royalties seems automatically bad (despite all the success from artists who’ve been freeing up their content), and other questionable practices raise serious doubts over how royalty money is handled once collected. Now, ASCAP wants to increase the toll on video games and is encouraging video game music composers to reserve performance rights (via Michael Scott). Typically, game developers purchase rights (including performance rights) from music composers, but ASCAP’s Director of Legal Affairs, Christine Pepe, argues that the practice no longer makes sense. She suggests adopting the model that was developed for film and television, where composers and songwriters often negotiate contractual provisions for performance royalties.

Not surprisingly, there are some major problems with the article.

First of all, Pepe cites Rock Band, Guitar Hero, Dance Dance Revolution and Stubbs the Zombie to highlight the prominence of music in video games nowadays. These are all cases of popular songs being used in games, rather than music being written for games… yet she’s presumably addressing people who write music for video games. Early versions of Guitar Hero used covers to make licensing easier, so composers weren’t even part of the negotiation. This licensing is about synchronization or mechanical rights — not performance rights. Labels have complained that these games aren’t paying enough for the music, but it’s the games that increase the value (and sales) of the music, not the other way around. These games could simply choose other good music and still be popular. ASCAP clearly doesn’t understand that, while music can add value to games, games add value to music. Pepe says that older video game music is “probably difficult to imagine… in a context other than the games themselves.” She isn’t trying very hard to use her imagination, as there are plenty of examples of older video game music having a life outside of the games. Would anyone care about the Mario theme if it weren’t part of the game? The lesson from old video game music isn’t that performance royalties used to be negligible. It’s that success for a video game music composer isn’t just about writing good music, but about having that music associated with successful games.

Second, Pepe’s argument that there’s a public performance of music in video games seems like a real stretch:

Now, because video games are being delivered by entities other than developers and on transmission-based platforms such as the Internet, there is no reason that composers of music for video games should sign away their rights. Take for instance, X-Box — it is now fully integrated with the Internet and allows users to stream games (instead of just purchase the physical product in the store). Internet-based services that now offer streaming of video games are causing the music contained in such games to be publicly performed. The providers of these video game services typically have or should have a license from ASCAP (and possibly other public performance right organizations). [emphasis mine]

What does “streaming” a video game even mean? A video game is interactive; it’s not a one-way broadcast, but communication over a network. Is Pepe suggesting that there’s a public performance simply because software communicates over the internet? Email happens on the internet. Is that a public performance? There’s such a thing as private communication over a network. Games like Gears of War, for example, allow you to play in co-op mode with another player in the same room or online. I find it hard to believe that the location of player two would determine whether or not the music is being publicly performed. What about a multiplayer game on a local area network? Why would that be any different, in terms of a public performance of music, from a multi-player game with everyone in the same room? Simply playing a game over a network doesn’t make it a performance, nor does that make it public.

But maybe Pepe isn’t referring to having players in remote locations, but having games in remote locations. She uses the Xbox as an example, which seems odd because, as I understand it, the Xbox Live Arcade lets you download games, but that’s quite different from streaming. It’s the video game equivalent of the iTunes Music Store, not an internet radio station. Digital distribution doesn’t mean public performance — the game is still played locally, just off a hard drive instead of a plastic disk.

Okay, so maybe Pepe was trying to talk about a platform that actually hosts and runs games on a remote computer. Still, it’s pretty hard to believe that just because software is run remotely it’s a public performance of the music, when the act of hearing the music would be indistinguishable if the software were run locally. Is it a “public” if I check my email using the Gmail web interface instead of Thunderbird? I have a music server running at home which lets me login and listen to my library from anywhere — is using that a public performance? Do I need a license to listen to my own library because it’s on a different hard drive? How does playing music in a video game become a public performance simply because of the hard drive the game resides on or the CPU that runs the process?

Furthermore, let’s pretend there’s actually public performance taking place. Is it even in a composer’s best interest to demand these royalties? (This is not about a composers “right to get paid;” composers are getting paid — upfront.) Making it harder for people to hear your music is rarely a good idea. Like with theme music for WKRP in Cincinnati or House in the UK, game developers may just seek other music if the licensing requirements are too burdensome. Focusing on getting every penny for every use of the music ignores the value of being included in a game, film or television show. The lesson from video game music of the past and present is that having your music included in a great game is extremely valuable. Not only are you getting paid to be promoted, but the game developers are even doing the hard work of getting fans to connect with the music! Rather than demanding compensation for every use, composers and songwriters should look at other ways to take advantage of the opportunity to make more money from the increased fan base. If ASCAP were really representing their interests, it would be helping them do this instead of pretending that the internet and video games are like television and insisting on performance royalties which will only get in the way of new business models. Of course, don’t expect ASCAP to promote anything that isn’t about increasing royalties. If your only tool is a hammer, everything looks like a nail… [or rather, as Hulser puts it: “if the only tool you sell is a hammer, you need everyone to keep buying nails.”]

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Girl Talk On Remix As An Art Form

This article originally appeared on Techdirt.

Greg Gillis (aka Girl Talk) recently participated in a live chat as part of a Download Decade series run by the Globe and Mail. Gillis makes music entirely from samples, combining existing songs in creative ways to make something new. His last album, which was offered as a pay-what-you-want download, used over 300 samples. Even though he’s been held up in Congress as an example of why traditional copyright laws might no longer make sense, it seems like a lawsuit is inevitable because Gillis doesn’t license any of the samples he uses. Yet, there has been no legal action to date (knock on wood!). Gillis argues that his sampling is fair use because it’s transformative, but that hasn’t been tested in court.

In the chat, he responded to a question I raised about why he uses a noncommercial license for his music (as he makes commercial use of others’ works), arguing that transformative fair use would still allow commercial use of his music and noting that his label suggested the noncommercial license as a “safe move.” Gillis was also asked whether he’s surprised that he still hasn’t faced a lawsuit, even though his profile has been much higher in the past few years.

Kind of. I believe in what I’m doing. I do not think it should be illegal. But at the same time, if you look at the history of sample-based music, it is somewhat surprising. Biz Markie, 2 Live Crew, Danger Mouse, Negativland, etc. Those are the people who laid the groundwork. They all had issues.

He notes that he was under the radar with his first couple albums, but since 2006, it’s been hard for him to ignore publications like the Rolling Stone and the New York Times talking about how he’s going to get sued. Yet, no lawsuits. He says times are changing.

The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet. So much content comes from pre-existing media. We’re used to it now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material. So the idea of a remix being a real artform is being validated in our culture every day.

Certainly, artists like Girl Talk, as well as others ranging from DJ Kutiman to the creator of the “rap chop” video, have been debunking the myths about “original” content, showing people that remixing can be creative and original and that it contributes to culture. Still, there are plenty of people who believe otherwise. Hopefully, Gillis continues to avoid legal troubles, though I don’t think things have changed so much that this isn’t still a huge risk. But, insofar as the remix is increasingly validated as an art form, perhaps a lawsuit would end up highlighting the limits that copyright law places on artistic expression nowadays.

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