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Tagged: royalties

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.

Read the comments on Roots Music Canada

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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.”]

Read the comments on Techdirt.

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Why Girl Talk Doesn’t Allow Commercial Use

Last July, I asked, why doesn’t Girl Talk allow commercial use? Girl Talk (Greg Gillis) makes commercial use of samples from all sorts of artists for his own music, yet he uses a Noncommercial Creative Commons license himself. Though, he points out that anyone else could use his material commercially, if it were fair use. That’s how he defends his own commercial use of samples from other artists. Still, it seems a bit ironic.

I had a chance to ask him the question directly in the Globe’s Download Decade Live Chat this Tuesday. I didn’t realize it was happening until the last minute and was rushing out the door, so my question was worded a bit awkwardly:

4:32 [Comment From Blaise Alleyne]
Greg, huge fan of your work, came to see you in Toronto in the fall. One question that’s bothered me though — why CC BY-NC-SA? [edit: it’s actually CC BY-NC] In other words, why forbid commercial use? I know you argue that fair use still allows commercial use (basis of your work), but I’m sure you’re well aware of all the legal ambiguity there. And, you’ve said that you don’t want your songs appearing as an endorsement in a commercial, but that sort of thing could happen anyways through collective licensing agreements. Also, the Share-Alike provision protects from exploitation much more than the Non-Commercial provision (i.e. if a company wants to use your song in a commercial, they’d have to release *their commercial* under the same license!)So… why not adopt a free culture approach entirely a

4:32 [Comment From Blaise Alleyne]
(opps, didn’t finish that comment…) So, why not fully adopt a free culture approach and allow commercial use of your music?

And his response:

4:35 GreggGillis: Basically, by going with CC BY-NC-SA, that means that someone can’t just take any one of my songs/albums/etc and just put it on a commercial or sell or a product with it without asking. But, people are protected under Fair Use, the same way I am protected under Fair Use. So I’m completely open to people remixing / recontextualizing my work and selling it if they believe it is transformative and does not negatively impact me.

I was disappointed at first because I thought this was his whole response; he was just restating the arguments I anticipated.

I’d heard him use the “put it in a commercial” response back in November at the Kool Haus, when he was trying to respond to the slightly outrageous “Is Girl Talk Killing Music?” piece by Marc Weisblott in Eye Weekly. Except, this was at the end of the show and he was shouting and everyone was drunk, dancing and excited, so he kept it brief. I wasn’t sure whether to attribute the ambiguity to the setting or to his understanding then. I think it’s clear he realizes that commercial use is about more than just commercials, but that just strikes me as a really bad way to talk about commercial use. Using “commercials” to explain commercial use is guaranteed to make a confusing topic even more confusing.

4:36 GreggGillis: In all honestly, I was open to going “completely free” with it. The label, who releases my music, Illegal Art, suggested going with the CC BY-NC-SA and I thought it was a good idea.

4:39 GreggGillis: If you are familiar with my work enough to sample it and make something new out of it, then I’m guessing you would most likely know that I would have no problem with people re-working my material in the same way I re-work other peoples’ material. The CC BY-NC-SA just seemed like a safe move. I’m approached by people asking to license songs pretty often. I didn’t want to make it a free for all.

It’s interesting that it was the label’s suggestion. I suspected that the NC choice had to do with retaining potential royalty streams, and he does mention licensing. Is NC the “safe move?” Sure. But I think the unintended restrictions and the ambiguity of the license make something like CC BY-SA a better choice in the long run.

The argument that people would need his permission for potentially objectionable uses doesn’t really make sense when you consider the ways in which that could happen anyways though collective licensing agreements. A company could easily use a Girl Talk track to sell a product, if all they needed were performance rights (so, maybe not in a commercial, but at an event).

But I do not believe he’s being hypocritical. I had read the Eye Weekly article in print, and was quite annoyed when they said the NC license “prohibits anyone from pulling a Girl Talk on Gillis,” but I just noticed that the web article links those words to my Techdirt post! Argh… Gillis would never take legal action against someone else for remixing, and it’s not actually hypocrisy when you consider fair use — just a bit odd and disappointing. I think Gillis and other artists would be better off removing the barriers to commercial use, but I don’t think he’s a hypocrite.

To be even more clear… I think Girl Talk is making great music, doing great work promoting the art of sampling, helping to legitimize remix as art in the minds of many and challenging restrictive copyright provisions which make this sort of art form impossible if each sample has to be negotiated individually, not to mention the business model experimentation with his last album. I’m just picking on him for the non-commercial restriction and making an observation that even an artist like Girl Talk seems to have some attachment to a permission culture. I think we can do better.

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Surprise, Surprise: Canadians Aren’t Interested In ISP Levies

This post originally appeared on Techdirt

Michael Geist points to two new polls released by Angus Reid Strategies, which show that Canadians are overwhelmingly against the idea of ISP levies. It should come as no surprise that 79% of people surveyed about the possible Canadian content levy on new media said it would be an “unnecessary and/or inappropriate fee that would end up being passed along to consumers.” In another survey on file sharing, 45% of people said that downloading music free of charge was just “what people should be able to do on the Internet,” while only 3% believed that downloaders are “criminals who should be punished by law.” 27% said that it’s something people shouldn’t be doing, but that “it’s not a big deal.” 73% of people thought that a music tax was “unnecessary and/or inappropriate” (which ought to disappoint a few Canadian creator groups calling for this sort of thing…).

The survey also found that those who download music are “often the most voracious music enthusiasts,” more likely to buy a CD in the next month (41% vs. 34% of non-file sharers) and more likely to have attended a concert in the past year (65% vs. 52%), which should, again, not surprise many people around here. This is just another bit of evidence that “piracy” is not a problem and, instead of pushing for ISPs to collect levies or act as copyright cops, musicians should focus on connecting with fans and giving them a reason to buy. Though, somehow, I don’t expect the whining to stop anytime soon…

Read the comments on Techdirt.

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ASCAP’s Bill of Wrongs

(Update: This has been reposted on Techdirt.)

ASCAP has published a Bill of Rights for Songwriters and Composers, which, unfortunately, seems to be more like a bill of “wrongs”.

Just as citizens of a nation must be educated about their rights to ensure that they are protected and upheld, so too must those who compose words and music know the rights that support their own acts of creation. Without these rights, which directly emanate from the U.S. Constitution, many who dream of focusing their talents and energies on music creation would be economically unable to do so – an outcome that would diminish artistic expression today and for future generations.

Which U.S. Constitution is ASCAP reading? The U.S. Constitution provision says, “the Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” There is nothing in the U.S. Constitution to suggest that copyright law has anything to do with protecting artists natural rights, copyright hardly exists for a limited amount of time anymore, and Thomas Jefferson and James Madison were quite skeptical of the concept.

And the claim that such laws are required to make a living as an artist is very debatable, and I’d beg to differ. There was art before copyright law existed, and many artists are making their living today despite copyright law (rather than because of it).

At this time, when so many forces are seeking to diminish copyright protections and devalue artistic expression, this Bill of Rights for Songwriters and Composers looks to clarify the entitlements that every music creator enjoys.

Who is seeking to devalue artistic expression? Price and value are not the same thing. Just because the economics of digital goods have pushed the price of music towards zero (the marginal cost) does not mean that music no longer has value. This sort of statement needs to be substantiated.

1. We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.

Why? In what other industries do creators maintain control over their creations after they reach consumers? Lenovo has no right to be compensated for the use of my laptop or to share in the revenue I generate through developing software. This is not a given.

2. We have the right to license our works and control the ways in which they are used.

Again – why? How many other industries control the way their works are used? This is not a given.

3. We have the right to withhold permission for uses of our works on artistic, economic or philosophical grounds.

This is not the purpose of copyright law at all, especially since it’s supposed to be for a limited time. This, in fact, is a restriction on artistic expression. Though it may be troubling to have a work associated with something that you don’t agree with, I believe that freedom of speech is more important for artistic expression than total control.

There are defamation and libel laws for serious abuses.

4. We have the right to protect our creative works to the fullest extent of the law from all forms of piracy, theft and unauthorized use, which deprive us of our right to earn a living based on our creativity.

Theft and copyright infringement are not the same thing. And the sharing and spreading of music through digital channels is natural and, more importantly, does not deprive artists of their right ability to earn a living.

Bad, out-dated, obsolete business models based on artificial scarcity deprive artists of their right ability to earn a living.

(I’m not sure if this is a “right” because they seem to be confusing royalties and salaries.)

5. We have the right to choose when and where our creative works may be used for free.

Why? Coca-cola doesn’t have the right to determine whether its products can be given away for free as part of a promotion after a pizza store purchases them. This is not a given.

6. We have the right to develop, document and distribute our works through new media channels – while retaining the right to a share in all associated profits.

Wow, that started off great, but the ending sounds like Billy Bragg’s whining in the New York Times. The phrase “all associated profits” seems quite overarching. This sounds like musicians claiming that MySpace and Bebo owe them money for their success, while denying that the reverse could ever be true, that a new media company would be entitled to share in “all associated profits” of an artist it enables to succeed.

Double standard much?

7. We have the right to choose the organizations we want to represent us and to join our voices together to protect our rights and negotiate for the value of our music.

Excellent! I actually agree with this whole-heartedly. I do not want ASCAP to represent me!

8. We have the right to earn compensation from all types of “performances,” including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.

This sounds like Viacom’s misunderstanding of the difference between content and communication. ASCAP is treating the Internet like other forms of broadcast, but the Internet isn’t a broadcast medium. It’s a communications medium. When it comes to communication, the idea of using copyright to restrict content gets weird in a hurry. Royalties are not the answer for the digital age.

9. We have the right to decline participation in business models that require us to relinquish all or part of our creative rights – or which do not respect our right to be compensated for our work.

Sure you do, but that doesn’t mean you’ll make any money. Economics aren’t about what you want to happen, or what you think should happen. Economics are about what is happening. Business models that don’t make sense given the economics won’t succeed. Of course you have the right to choose whatever business model you like, but that doesn’t mean it will be successful or that it should be protected by copyright law.

The end of that statement sounds like another case of confusing royalties and salaries.

10. We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.

Of course you do, but again, I don’t think it’s a great idea if you subscribe to this “bill of rights”. Moreover, consumers also have the right to advocate for better laws that protect their interests and vigorously uphold and protect their rights, which our current laws fail to do.

Artists can advocate whatever they want, but it’s a bad idea to advocate the opposite of what your fans want.

Conclusion

This supposed bill of rights is really just an assertion of the status quo by those who depend on copyright law to protect their obsolete business models. If people in the music business could only realize that they’re in the business of providing an enjoyable experience surrounding music, rather than trying to control and monetize every possible use of art, they might open up to new business models that make sense rather than whine about the fact that their current business models don’t work anymore.

This isn’t a bill of rights. It’s a stage and symptom of the grieving process.

Signing this and, worse yet, living by it, would be an economic and ethical mistake for any songwriter or composer.

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Copyright law doesn’t make sense on the Internet

Last year, Viacom sued YouTube for a billion dollars over copyright infringement. The lawsuit is problematic and the premise is weak for many reasons, but that’s for another time. The recent news is that Google has filed its response to Viacom’s recent filings. Its defence has people talking about the ideological and political battle that is the backdrop of this lawsuit, namely its effects on copyright law.

Mike Masnick from Techdirt observes that this is ultimately about the difference between content and communication:

Media companies still look on the internet as a content platform. That is, they think of it as a new broadcast medium. Most other folks recognize that the internet is a communications medium, and the focus should be on the ease of communication. That’s a problem for anyone who comes from a world of broadcast media, and it creates all sorts of problems for copyright law that is designed mainly to protect a broadcast-style media. Yet, when it comes to communication, the idea of using copyright to restrict content gets weird in a hurry. [emphasis mine]

In typical communication, copyright makes no sense. You don’t worry about copyright (even though it exists) when you send a letter or an email to a friend. You’re communicating, so of course the idea gets copied and repeated. In broadcast, the broadcast media model was always based on control and artificial scarcity.

Applying copyright to a communications platform sure does get weird in a hurry. My chat client keeps logs on my computer. Do my friends and co-workers have copyright claims on my chat logs? Am I infringing copyright if I forward an email I receive? Who owns the comments on a blog? Do music royalties make sense online?

Copyright was crafted to regulate broadcast mediums, not communications platforms. That’s a very compelling reason why it makes little sense on the Internet.

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Confusing royalties and salaries

Today, I was sent a link to an emotional rant by Harlan Ellison about paying writers royalties. I admit that I’d never never heard the name before (not sure if I should have or not…), but, from the sounds of his Wikipedia article, I’m pretty sure I wouldn’t like him.

He did an on camera interview about the making of Babylon 5, and the film company doing the packaging for Warner Bros. called him up because they wanted to use it on the DVD. They wanted to use it for free, he wanted to be paid. If he owns the copyright to the interview, he has the legal right to demand compensation, but it’s the ensuing rant which brings up all sorts of problems.

He hopelessly confuses royalties and salaries.

By what right would you call me and ask me to work for nothing. Do you get a pay cheque? Does your boss get a pay cheque?… Do you pay the camera man? Do you pay the cutters?… Would you go to a gas station and ask them to give you free gas?

They weren’t asking him to work, they were asking to use something he’s already worked on. A salary is about paying someone to do work, but royalties are about paying someone to make use of work they’ve already done. So, his pay cheque comments are off the mark. Also, if he was compensated for the use of the interview, would he pay the camera man and cutters who helped produce the original interview? What about the manufacturers of the camera or the audio equipment they used? What about the lighting crew? What about the actors, without whom there’d be no Babylon 5 to do an interview for? What about those who taught him the language he uses in the interview?

It’s not as clear who should be paid when it comes to work that’s already been done, compared to work that’s about to be done. In most other domains, people don’t get paid for work they’ve already done. I don’t pay Lenovo royalties when I develop software on my ThinkPad, I don’t pay Gibson royalties when I play a gig on my Les Paul, and I don’t pay my music or computer science teachers when I apply a concept they’ve taught me on the job.

He says, “they always want the writer to work for nothing.” That’s certainly a problem, but the example he’s ranting about is not about him being asked to do any work. He wouldn’t be doing any more work by saying yes than by saying no. Again, this doesn’t mean he doesn’t have the legal right to ask for compensation, but in confusing payroll cheques and royalty cheques his complaint doesn’t really make sense.

To be clear, I’m not saying it’s wrong for him to ask for money in this case. It’s the way in which he confuses royalties and salaries that’s problematic. Royalties aren’t always the answer, and though it may be convenient, it’s inaccurate to make an argument about paying people for work they do when you’re really talking about work they’ve done.

Ellison also seems to have an elitist complex and a problem with competition. He says, “I get so angry about this because you’re undercut by all the amateurs,” and then goes on to flap his arms (not sure why…) and mock the mindless attention seeking of the amateurs who “have no idea they’re supposed to be paid every time they do something.” Like, every time they take a piss, for example. (“I sell my soul, but at the highest rates. I don’t take a piss without getting paid for it.”)

What about the “amateurs” who realize they can get a competitive edge on the “professionals” by offering they content at a lower rate? Isn’t that called competition? If competition is driving down the monetary value of Mr. Ellison’s interviews, maybe he ought to invest some time in fine-tuning his business model (no, that doesn’t mean suing more people), rather than simply whining about the change in the market.

At the start of the rant, Ellison says “everybody else may be an asshole, but I’m not.” If you watch the video, you might even doubt the accuracy in that.

It’s entertaining though.

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Music royalties are not the answer in the digital age

((If you’re tagged in this note on Facebook, it’s because I value your opinion and am interested to hear what you have to say. Or because I’m pretending to value your opinion and would be interested in proving you wrong. 😉 Either way, you may want to read the first post to get up to speed, if the topic interests you.))

I recently wrote about Billy Bragg’s op-ed piece in the NYT, claiming that musicians deserve a cut of the profits from Bebo’s sale to AOL. I lamented the sense of entitlement his position displayed.

I take that back. I don’t think it’s really entitlement. I think it’s habit, well-intentioned but misguided old patterns of thinking.

In the comments of the ongoing debate that’s sprung to life on Joe Weisenthal’s blog post, Billy writes:

And for the record Blaise, I also view the technology as a blessing rather than a curse – it has the potential to allow more artists to make a living than before.

I’m just concerned that there are enough safeguards in place to ensure that we are able to earn a living – that we don’t go from the old feudal arrangements with the record companies to a new shiny kind of feudalism on the internet.

I responded thusly:

I’m glad to hear you view the technology as a positive opportunity. I think where we differ is in our expectations. I’ve become more and more involved in the free / open source software community where users of the software have the freedom to redistribute software as they please, for a fee or not, and software is often available at no cost. Programmers still make money through the economics of abundance that Mike talks about, through monetizing the scarce goods (i.e. their time for custom software development, support services, brand name reliability like Red Hat GNU/Linux, etc).

It seems to me as if you are arguing that these royalties should exist because that’s what you’re familiar with. That’s how musicians have monetized their music over the last few decades. It seems as if you’ve worked backwards from a conclusion that royalties are the answer.

How are musicians to make money in a digital environment? Well, how did we do it with another huge technology challenge – radio… With royalties! Therefore, digital music needs fair royalties. And thus, the bebo’s were ripped off because they didn’t get their royalties.

That thinking has blinded you to the fact that they made a fair deal (they traded royalties for hosting and exposure) of which the terms haven’t changed, and I think it’s also why you refuse to turn the tables and allow your logic to work in reverse (in terms of musicians compensating Bebo for any of their success).

I reject the idea that royalties are the answer to digital technology. With traditional radio, being a broadcaster is analogous to owning a printing press. Owners of printing presses and radio stations were a small minority of the population, and distribution is on a large scale.

On the Internet, anyone can be a broadcaster or a distributor. And it can happen on a large (e.g. Bebo) or small (e.g. blog) scale. To take the thinking about royalties and copyrights that was developed to manage a few large publishers and mass distributors, and now attempt to regulate everyone in the same way just won’t work. Now, everyone can be a distributor. Enforcing regulation on digital technology is impossible and, more importantly, the benefits aren’t worth the drawbacks.

I’m young and inexperienced, so maybe I’m wrong. But I think the challenge to people who’ve been in the industry for a while is to understand that embracing this new technology can’t simply be a matter of adapting old concepts, like royalties, to the digital world. Digital technology is different in a fundamental way. So, too, does our approach as musicians need to be fundamentally different.

Billy is still dead wrong in too many ways to count on the initial issue he rose. In the case of Bebo, the rights holders made a deal of which none of terms changed with the sale, in the same way that the deal wouldn’t change if an artist got a record deal. Applying royalties retroactively, against the terms of an initial agreement, is flat out stupid and unethical. And denying rights holders the ability to make such an agreement, and therefore sites like MySpace and Bebo to exist (where you don’t need to be selected to be heard), would be unwise.

I think Billy is well-intentioned, but too used to old ways of doing business. What needs to be “safeguarded”? It seems that he fears exploitation in a digital world. If you embrace the economics of abundance, the distribution of your digital goods isn’t exploitation. It’s promotion, advertising for your scarce goods. If you don’t embrace that thinking, how can you even survive in a digital world? 98% percent of music acquired online is through file sharing networks. (Update: If… you believe the CRIA)

Embracing the economics of abundance means recognizing your abundant goods and leveraging them to add value to your scarce goods, rather than attempting to limit the abundant goods with artificial scarcity. The refrain is as follows: There is an inverse relationship between price and supply; as supply increases, price decreases, therefore as supply approaches infinity, price approaches zero. Digital goods are infinitely abundant insofar as they’re digital. But price and value are two separate things; price is a subset of value (monetary value). Since digital goods are abundant, they can be spread easily to add value to scarce goods (which can command a higher price). WIth respect to music, digital audio files are the abundant goods which can be used to add value to scarce goods such as embodied recordings (e.g. CDs), concert tickets, t-shirts, or a musician’s time (e.g. session work). (Credit: Techdirt)

I believe royalty-based systems are ill suited for the digital age. Royalties weren’t meant to be applied to everybody, yet anyone can be a distributor or a broadcaster in the digital world. The answer to monetising music in the face of digital technology lies in embracing the new digital nature of music through the economics of abundance, rather than attemping to create artificial scarcity.

What do you think?

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