A copyright will protect you from PIRATES

Vintage image (CC-BY-SA) Ioan Sameli, as licensed by us pinko commies at CDM.

An ASCAP legislative fundraising letter revealed last week that the American performing rights organization is invoking fears of the Electronic Frontier Foundation, Public Knowledge, and Creative Commons in order to raise money. ASCAP appears to be repeating, now in the more heated language of fundraising, arguments it has had with the Creative Commons license in the past. For its part, Creative Commons insists most of its licenses don’t preclude performing rights bodies like ASCAP from collecting funds.

In the letter, sent on behalf of ASCAP’s Political Action Committee (PAC), the ASCAP Legislative Fund for the Arts, the PAC argues to its members that that these organizations undermine the value of music:

Many forces including Creative Commons, Public Knowledge, Electronic Frontier Foundation and technology companies with deep pockets are mobilizing to promote “Copyleft” in order to undermine our “Copyright.” They say they are advocates of consumer rights, but the truth in these groups simply do not want to pay for the use of our music. Their mission is to spread the word that our music should be free.

This is why your help now is vital. We fear that our opponents are influencing Congress against the interests of music creators. If their views are allowed to gain strength, music creators will find it harder and harder to make a living as traditional media shifts to online and wireless services. We all know what will happen next: the music will dry up, and the ultimate loser will be the music consumer.

Attacks on Creative Commons by ASCAP are nothing new. The organization argued in a 2007 essay (and subsequent report) that elements of the license, which is applied to copyrighted works, meant “artists should give up all or some of their rights.” As noted in a rebuttal by Creative Commons’ Laurence Lessig, some of those claims were incorrect. Among other items, ASCAP said that the “licenses ask creators to waive the ability to collect royalties,” which isn’t true of the non-commercial CC licenses.

The claims in the fundraising letter were more bluntly inaccurate. Creative Commons’ licenses are all built on copyright, and as non-exclusive licenses, they do not in any way prevent artists from being paid for music. They don’t even, as the organization observed three years ago, preclude ASCAP license collection – at least not on works licensed with the non-commercial provision.

Creative Commons licenses do reserve fewer rights for the creator, by definition. All the licenses currently in use include provisions to allow works to be freely distributed via peer-to-peer file services, and depending on the license chosen, may open up other possibilities for use and remixing. But nowhere does the letter acknowledge that an artist must choose to license their work; unlike Copyright, CC licenses are not automatic, nor is the CC organization advocating that they should be. Creative Commons spokespeople have previously told CDM that they aren’t even suggesting that CC licenses are the right choice for everyone in every circumstance. As advocates of their own license, on the other hand, they have explicitly said that their hope is that the license will help artists make money, not that all music “should be free.”

The blog ZeroPaid covered the initial controversy and criticized ASCAP’s take on Creative Commons as an attack on creator choice:

Creative Commons is a middle-of-the-road approach when it comes to copyright and enables creators to tell consumers, in plain language, what they can and cannot do with their content. In short, it’s an option for artists. Any attack on Creative Commons is an attack on an artists right to choose what they feel is appropriate for their chosen distribution channel.

ASCAP Declares War on Free Culture

Creative Commons responded on the same site:
Creative Commons Responds to ASCAP

Additional coverage:
ASCAP Claiming That Creative Commons Must Be Stopped; Apparently They Don’t Actually Believe In Artist Freedom [Techdirt]

ArtsJournal blog Mind the Gap observes that the fictional characters on Glee are in conflict with current US Copyright Law, and expresses surprise that the black-and-white claims of ASCAP’s fundraising letter would target the EFF, Creative Commons, and Public Knowledge. He asks if any card-carrying, royalty check-cashing ASCAP members would share how they feel, and they do – largely to express frustration with ASCAP.
The Right Balance on Copying [Mind the Gap]

ASCAP membership dues can go toward advocacy; only the ASCAP Foundation is a 501c3 charitable organization; the latter supports education and talent development. I’m curious, then, what royalty-check cashing ASCAP members think of these issues, as well.

Thanks to Jason Phoenix for the tip, and incidentally to my friend Mike Rugnetta, whom I was surprised to see pop up in the stories. (Internet: population, one dozen?)

  • Barry Wood

    I'm a member of ASCAP as a composer and publisher and I haven't received this letter yet. I think it's patently stupid for them to wage war against CC, this is choice that is made by the creator on a work by work basis. I think there are appropriate situations for both copyright and CC licensing.

  • Tom

    While it's overstated, the idea that technology companies are still making an income from creative commons music isn't that whack.

    Sometimes I see some of my music displayed on a page with ads all around it. Or a video I made on YouTube, making YouTube ever richer. The ISP is getting money. The website is getting money. The mp3 player manufacturer likewise. It's only me that is being generous.

    Sure, if I was smart I'd find a way to monetise everything, like everybody else in the chain. But music is weird – it's completely valueless to the musician but a goldmine to the aggregators. Kind of like panning for gold.

    I'd say that musicians have become fish to the fishermen – jumping into the nets. We need a little more pride in what we do. It is worthwhile, like doctoring or mowing the lawn and people don't always do those things for free, or by selling T shirts.

    There needs to be some discussion that builds up self respect. Sure, the consumers has rights. Is it so hard that we have a few rights too? And is ownership not one of those rights? Moral rights if nothing else.

    Last anecdote – I was sent a contract by a large company wanting to use some music of mine for an online advertising campaign. For free, of course. After all, it's just music, CC and all that. I told them go talk to my publisher, and suddenly the respect level changed dramatically. I was not a fish any more.

  • SlowX

    This is really wild, and really, really complicated.

    Yes, companies are making money off of music that's covered by the creative commons license, but it's not a one-for-one connection. In most cases w/ MP3 players and web sites it's like going to a gas station and hearing Michael Jackson being played on a radio from behind the counter. His estate isn't getting a penny from being heard in that ExxonMobil, but you are spending money there. Is hearing "Thriller" (again!) making you buy more than if it was some computer-generated GarageBand thing?

    I also realize that the Michael Jacksons and the U2s of the world aren't suffering through all this. Instead it's of us, creating new stuff that may not fit current music industry "square holes" as we do whatever we can think of to get our stuff out there. Sure, there's the "the first taste is free, but the rest is gonna cost ya" model, but (as far as I know) ASCAP is not willing to explore and enhance that concept.

    In fact, that's what upsets me, that "official" organizations like ASCAP and the RIAA aren't exploring new models, options, tools, etc. Instead they're thumping that tattered old "THE SKY IS FALLING!" drum/time-machine (which, sadly, is playing an old Motown rhythm with a copyright that's simply not being enforced), and sticking to old world ways, still wishing they could tax blank CD-ROMs and 8-track tapes to feed their "war chest."

    (And it's not just music, it's words, pictures, ideas… Even this site is fueling some of those fires w/ its use of CC images and text that "licensed under a Creative Commons Attribution-Share Alike 3.0 Unported License.")

    It's just not that simple anymore, and that stinks. We should focus on our melodies and rhythms instead of needing an MBA.

    However time will not go backwards, no matter how much the REAL deep pockets in the music industry wish it would.

    Then again, was it EVER about the artists?

  • http://www.createdigitalmusic.com Peter Kirn

    @Tom: Yes, that's true, but that's not a description of CC material. It's a description of copyrighted material. Anyone uploading to *any* site is licensing that material to the site; it's in the terms of service. They're in turn monetizing it one way or another, whether it's a Flickr subscription fee or an ad. But obviously someone is happy with the equation, or they wouldn't be uploading.

    That said, otherwise what you're saying here is an excellent rationale for using the non-commercial CC licenses… or, in some cases, in fact choosing copyright over CC. That's okay. This was a legislative fundraising letter, though, which implies that the CC folks are trying to *change copyright law*, which is just made up. EFF are filing amicus briefs for copyright law, but over things much more fine-grained adjustment, and largely in the enforcement category, not trying to overturn copyright.

  • Luddy

    Actions like this undermine the credibility of ASCAP, and that’s too bad because they are sorely needed as a credible voice these days. It is nothing new that companies profit from copylefted material; think of all the companies that have benefited financially from GNU software (Apple, RedHat, Sun, IBM, too many to name). This possibility was never proscribed by the free software community.

  • http://robotcowboy.com Dan Wilcox

    @Gary Gore Amen brother!

  • James Bull

    @SlowX: I'm not sure how the law in the US works with your example, but if you went to ExxonMobil in the UK, and they were playing michael jackson on the radio, then the estate would be making money from this. Here, the PRS provides obligatory licenses to public places which want to play music (radio, cd, live etc), and the money from this is distributed between the rights holders according to statistical data about the number of plays in different locations.

  • Gary Gore

    Unfortunately these people who make these comments on behalf of the RIAA and ASCAP are rarely musicians, they are the ones profiting from music without ever writing any themselves.

    Throughout history most musicians have always made more money from performance than from record sales, even the biggest artists make more from touring than album sales.It is only the last 60-70 years where recorded music has had a value.

    Soon the day will come again when recorded music has no value.

    I look forward to the day when recorded music has no value whatsoever.

    When there is no money left in an almost obsolete recording industry maybe the pseudo-artists and businessmen and lawyers, and other scum who are only there for fame and money will quit.

    And quality of performance for popular music will again increase.

    Now there are too many artists who can’t even perform their own songs without the assistance of backing tracks and autotune. When the marketing team behind them quits they will quit too.

    Buying cd’s directly from musicians you enjoy at their live performances is the best way to support them.

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  • http://www.exodub.com Kyran

    The day recorded music has no value whatsoever I have a problem.

    I like to produce music, I spend ages in my studio finetuning sounds. On the other hand my music doesn't really lend itself for live performance (or at least my way of making it doesn't really translate well to a live environment) and there are a lot of dj's who are a lot better at giving a great party than me.

    Basically: if recorded music has no value, the act of recording/producing it and making it sound as good as possible will also have no value anymore (or very very little).


  • Blob

    @ Tom – amen

    @ Kyran – amen, too

    @Gary Gore

    "I look forward to the day when recorded music has no value whatsoever."

    I'm completely opposed to that statement. For a simple reason: I'm currently writing, composing, rehearsing and eventually recording an album with a band this year, and so are many other musicians all around the globe. And you are telling us that the hours, days, weeks we're spending working in our artistic project should be worth absolutely nothing as a principle, regardless of the quality? Unacceptable.

    "Buying cd’s directly from musicians you enjoy at their live performances is the best way to support them."

    Live performance is certainly the main income source and activity for the contemporary musicians (and maybe THAT will kill auto-tune pseudo-musicians), but I don't see why it should mean that they should be forced to give away for free the music they've painstakingly composed, arranged and recorded over several weeks or months should have no value (especially, like Kyran said, in the case of non-performing musicians / composers). Unless of course, they do decide to give it away for free, why is a valid option. In any case, if recorded music loses its value, then why would you buy cd's from bands at their concerts when you could just get them for free?

    There aren't any simple answers for this issue. The old model where record companies ripped off artists and consumers is on the way out and I'm glad for it. But recording your music is part of your work as an artist and some new model should be developed that allows artists to charge a *fair* price for their music (with less middlemen and intermediariy companies charging up the price) or give some of it or all of it for free, whichever they choose.

    Which brings me to the article. ASCAP's attitude won't take them anywhere. People will either CHOOSE CC (to give consumers a taste of some or all of their music without the fear of having the RIAA jump out of your modem and strangling you) or they will CHOOSE copyrighting their work (if they want to sell it or just stop people from sampling it and using it in adverts or political rallies without their permission). The fact that CC exists is not in itself a challenge to copyright, it's simply an attempt to fill a hole in copyright law. Many artists want to register their music and be credited, but they also want to have it freely distributed, used, abused and/or remixed. Personally, I still prefer to copyright my work so I can have some say on what happens to it.

  • Nik km

    What these people need to remember is that copyright is not a 'right'. It only exists so far as most people agree that it is fair and should be respected. If the copyright owner tries to impose unreasonable restrictions on use, or to gouge the public with unreasonable prices, the respect will be lost and copyright ignored. Those seeking ever more draconian sanctions against people who choose to disregard copyright are doomed to fail, and will alienate the very people they hope to sell to. The days of paying $20 for a piece of plastic containing a dozen tracks 6 of which are garbage and 4 re-releases are long gone. Get over it. And to artists, music (or whatever) is worth only what people are prepared to pay for it. And the RIAA needs to remember – most of the world is not America.

  • http://naufolio.augmentedrealityag.com naus3a

    @ gary: amen.

    the part that upsets me the most is the paternalistic attempt to tell people where the real evil is (like in witch hunts or in racist superstition).
    I have no problem with the fact that an artist (or programmer) wants to license his work under a close license: if it’s reasonably priced and I like his work I’ll buy it; if it costs too much for me I won’t buy it and still respect his licensing decisions; if I don’t really like his licensing decision I’ll simply boicot him.

    What I can’t really accept is that people try to tell me how I have to license my own work. This is a real copyright infringement.

  • Damon

    This one is just buggy. What next, you can't share your own music with friends and family unless you charge them?

    "Well, mom, I'm afraid that is gonna set you back 99 cents. Nothing personal. I realize I wrote it for your birthday, but rights are just not right anymore."

  • http://www.createdigitalmusic.com Peter Kirn

    @Tom: Yes, absolutely… I think there is some stuff to criticize. Such is the irony, though, not only that ASCAP would go after these particular organizations, but that they'd use it to raise money for legislative efforts, some of which are unrelated.

    The fundamental problem, though, is that no one has easy answers. The sorts of record sales that generated big volumes are evaporating, and the landscape for the whole distribution apparatus is shifting. And it isn't a stretch to say that sometimes it's shifting to free, or to things with such tiny royalty slices that they cease to generate income. Because of their charter, ASCAP is naturally going to try to make everything into a performance royalty. But obviously that's going to sometimes defy sense. I sure don't have the answers, though. I hope to run the EFF conversation interview I put together later today – waiting on a fact check from them – but while they expressed commitment to getting artists paid, they didn't have any terrific solutions outside of voluntary collections via P2P. Of course, it's not in their charter to solve that; it is in ASCAP's, which suggests to me that cooperation rather than open hostility might be more productive.

  • http://www.ilektron.com Mudo

    Hi guys don’t think anything I have copyrighted your soul. Your ideas aren’t yours, I license them to you for a bit tax…

    Keep blank minded, good boys, good boys…

  • http://www.myspace.com/jamesyanisko JamesY


    actually, businesses like the Exxon station in question pay license fees to be able to play music in their establishment. Those fees go to the three PROs to compensate the artists….

  • http://www.myspace.com/jamesyanisko JamesY

    (I should say they are legally obligated to do so…sometimes they try not to)

  • http://andrew.hicox.com plurgid

    I have to say, it's the comments I love most on this site. The articles are usually pretty great, but the discussion is usually very insightful, and this is no exception.

    But who owns the rights on these comments? Would it be a good idea to try to monetize our rights as comment authors? Or is the greater good served by surrendering some of our rights so we can get on with the business of having a conversation?

    CC licenses are clearly not the best thing to use all of the time. But it clearly is some of the time, and it all depends on your motives.

    As a part time, hobbyist musician who isn't trying to make a living on my tunes, CC is just about the greatest thing ever.

    I wouldn't necessarily use CC licenses if I had a full album of material I intended to try and sell. I do, however have lots of one-off individual tracks, and sometimes posting them on the internet under a CC license pans out in completely unexpected ways.

    For instance, this:


    was picked up by Don Juan magazine for a promo video:


    Imagine my utter surprise to wake up one morning to an email with a link to a video of bikini-clad latin hotties gyrating half a world away, to the beats I made on one bored rainy saturday afternoon in suburban Alabama.

    and then later played on a local radio radio show as a bumper. Hearing yourself on the radio is also a very cool experience.

    None of this could have happened without CC licenses. There's no way in hell I could have sold that track, even if I owned the rights to all the samples I used. There's billions of other techno tracks that are probably a lot better you could buy the rights to. But if it's free … hey, what have you got to lose? You've got nothing to gain but exposure (for whatever that's worth).

  • John


    "I’m currently writing, composing, rehearsing and eventually recording an album with a band this year, and so are many other musicians all around the globe. And you are telling us that the hours, days, weeks we’re spending working in our artistic project should be worth absolutely nothing as a principle, regardless of the quality? Unacceptable."

    Me and my staff at Acme Buggy Whip company have spent years perfecting our buggy whip design. We spend many hours hand-crafting every whip we sell. Are you telling us that this newfangled automobile will make buggy whips worthless, regardless of the quality? Unacceptable.


    "I have a problem with the ‘all the way to the bottom’ argument – that once music is worthless then only the pristine will make it any more."

    That's not the argument in play. The argument is that once *recordings* have no monetary value, the only musicians that will make monetary *profit* from their labor are the ones that do so by performing.

    There will still be plenty of recordings of varying quality by artists of varying ability.

    Seems like that's where we're headed, whether or not we wish it to be true.

    Gary Gore is right.

  • John

    And another thing…

    Gary Gore is wrong to say that only "truly talented" acts will survive.

    Horrible live acts will still have a chance to prosper if they have the marketing muscle and/or due to the fact that consumer tastes are not always for…"quality".

  • Tom

    As James says, here also the performance of music in shops requires payment to a performing rights society.

    I have a problem with the ‘all the way to the bottom’ argument – that once music is worthless then only the pristine will make it any more. When you graft it onto any other labour it seems odd – ‘when no one can make money from farming then only REAL farmers will keep doing it!’ ‘when no one can make money from surgery then only REAL surgeons will do it!’ and so on. Hidden in the argument is the idea that making music is not real work, or if you want to be nice about it – somehow more elevated than real work. Really? Why? It seems like work to me. Or is this a judgement by taste – my music is real – theirs is not. Or does it deny the need for management, for people to distribute, for stores to stock the albums? That’s a lovely vision but it’s just not real.
    No, there’s never going to ever be time where no one makes money from music. It’s just going to be a smaller group.

    As for uploading to sites – as the record companies go down, the aggregators go up. Are our new masters really any better? They are better at spinning a fable about ‘clouds’ and ‘commons’, and it’s that tale, like all other marketing, that has be critiqued.

  • SlowX

    To those who say that gas stations etc. who play music pay for that music, I know. I was talking about "unofficial" instances, like a when a person working there is playing his/her own radio.

    All I'm saying is there are (offline) times when you hear music the musicians aren't getting their share.

  • Blob


    To your credit, your spoof made me laugh, but if you bother to read my post (typos and all) in its entirety, you will find that, like yourself, I really DO think that live performing should be the musician's main activity (and profit generator).

    But – and that's where we obviously disagree – I also think the time spent composing and creating a finished recorded product that you will listen in your stereo / cd player / mp3 player / internet stream / etc. should be taken into account.

  • Blob

    @ John (continued)

    "Horrible live acts will still have a chance to prosper if they have the marketing muscle and/or due to the fact that consumer tastes are not always for…”quality”."

    And yes, you're right about that. Tune in to any trash TV "talent" show for confirmation. Whatever the situation, you will still have crap live music, and live performance, as I said, is what makes or breaks a musician. If one's performance is subpar, you'll only make it with a PR/marketing machine support – or you'll disappear. I just think the recording bit of the equation should still hold.

  • Blob

    As for ASCAP – since I'm not a member, I became curious and visited their website. I came across this document, a creator's "Bill of Rights"



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

    used for free."

    unfortunately, it appears their attack on CC is in contradiction to their stated principles.

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  • J. Phoenix

    My difficulty with ASCAP singling out Creative Commons and the EFF–as they are soliciting contributions to a lobbying organization–is that it has potential for negative results.

    As an artist living in 2010, I appreciate the efforts of the EFF towards Net Neutrality, and the framework of Creative Commons to allow me to set boundary lines over my Copyrighted material that I distribute online.

    I appreciate efforts of the EFF and Creative Commons much, much more than I do the repeated attempts by the Recording & Publishing Industry to criminalize my audience and to eliminate the means to distribute my music in the way that I choose–in the name of serving the interests of artists.

    I do understand that to best monetize my intellectual property assets I have to contribute yearly dues to organizations who will then apply outdated means of information collection I cannot challenge independently to my creative output as distributed, and then disburse an equitable payment to me sourced from the monies collected from completely separate businesses from mine, like venues, businesses who play my music, radio stations, muzak, other musicians who perform my works, and jukeboxes.

    That seems fair to me. I just don't want to hand the keys to the Internet over to these same people, because I suspect they'll gladly charge me for the privilege of uploading my music onto the Internet and charge me a service fee for the people who download my music, but I have a feeling they'll forget to send my check in the mail when they send me a letter requesting I help them lobby against my own interests..

  • Vehical Driver

    ASCAP itself cheats artists. In theory, ASCAP should be distributing royalties for live performance at nightclubs and such based upon some sort of collected data about what they are actually playing.

    In reality, no one makes any money from the money collected from venues. When I worked for a record company with billboard top 10 artists who sold millions of records, they got zero royalties from the licensing of venues / net radio stations / etc. Since the data is not independently verifiable (unlike broadcast radio stations, which broadcast on the public airwaves), ASCAP only pays those royalties to artists it has a special relationship with.


    1. I don't think Creative Commons would exist if not for the ridiculous extensions of the length of copyright protection that the RIAA and ASCAP have foisted on the world.

    28 years is plenty long enough for copyright protection, after which the work becomes public domain and anyone can reuse it, publish it, or build on it. But they've pushed and fought to make copyright protection essentially infinite, so the people are doing what they can to refresh the public domain.

    2. Even if recordings lose their value, people will still make music. They'll do it because they love it and because it gets them laid.

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  • CHoc Donut

    Anyone who thinks they have the right to free entertainment is a selfish idiot. After 28 years, the work should become public? You can't come into my 75 year old house and say you own it. You can't take a painting and say it's yours. This new supposedly tech-genius generation of button-pushing slopeheads needs to get over it's infinite sense of entitlement and learn how to work for something, because it's clear by the music they make that they are incapable of dedication and originality. (with a very meager handful of exceptions)

  • CHoc Donut

    Despite my comment, it's true that there is no greater satan than the grand media apparatus that has made getting elected a game for millionaires only and corrupted our democracy to the core, as well as driving up health care costs with preposterous amounts of erectile dysfuntion advertising. Remember the endless ads for credit cards and sub-prime mortgages? Somehow the media manage to make fistfuls of dollars off their protected cabal and yet parse out the meagerest amount of reward to the creators unless represented in a union like in film.

    Musicians have cracked the production side, but until the FCC is forced to shatter the continuing media monopolies, then distribution and promotion will remain a game of contractual compromise for an artist who actually wants to get some major traction. Of course, a great song and a great video can cut through, and that's what everyone hopes for. So no love lost for major corporate labels, although the marketing side is still critical as always. That said, bit torrent and file sharing should be neutered. Anyone who actually sweats over their music prob agrees. Not DJs, people who actually make something. If you're that great a 'dj' with your 'mixes', then you ought to have the nuts to make something from scratch. And hire a drummer and prove your engineering prowess if you want drum samples or just buy a collection. Bitching about not being able to sample old records any longer is pathetic. That said, B-movie dialog is pretty fun.

  • http://profile.yahoo.com/OPYBB6BRNZGWEAJKDRSY3FDYBQ None of your business

    So, what happens if you don’t know that you are a pirate because everyone else is doing it on you tube and so are all of your friends and you are a creative artist yourself and write jokes and stories and incorporate music and pictures to do it on facebook and then monsters for american terrorists attack yourr entire life due to it. Does that make all of the artists hypocrites!  PERHAPS!

  • http://profile.yahoo.com/OPYBB6BRNZGWEAJKDRSY3FDYBQ None of your business

    And what is worse is that they go ahead and represent themselves by the MOST PATHETIC MEN ON THE ENTIRE PLANET TO YOU!

  • http://profile.yahoo.com/OPYBB6BRNZGWEAJKDRSY3FDYBQ None of your business

    So basically in Ireland they all told me that I was more powerful in my gifts than Reikki Masters and other Psychic’s.  And they told me to start DEMANDING THINGS!  SO I AM!  I AM DEMANDING MY ENTIRE LIFE BACK YOU VICIOUS VIOLENT MONSTERS FOR PEOPLE WHO JUDGE AND EXPLOIT PEOPLE THAT DO NOT LACK LIKE YOU ALL DO!