Patenting the use of all episodic media on the Web might sound absurd, but the US Patent and Trademark Office has granted just such a patent, to a company called VoloMedia. It’s a significant issue, one that could threaten the freedom of all media distribution online. Wherever you are in the world, you can help.

Intellectual property law was created in order to protect genuine inventions and innovation from exploitation. But predatory patents, based on bogus claims and attempting to stake out broad rights, threaten to do just the opposite.

Here’s a new idea: fight back.

Lawyers are the heroes this time. The Electronic Frontier Foundation’s patent-busting project aims to take down unfair patents that threaten common-sense uses of technology. A number of these have applied to music and audio. The EFF has already won a big victory against what had been the worst offender – media giant Clear Channel actually successfully patented recording live shows. (No, really — recording a live gig, then burning them on the spot. The EFF was able to bust that patent.) The advocacy group also scored significant victories against patents on sending and receiving online streams and encoding media. (If someone thought they could patent your ears and charge you royalties for hearing, they probably would.)

Lawyers alone haven’t won these battles. The EFF’s clever twist is to crowd-source its case, by getting people like you to help the group document “prior art” – in plain English, to prove that something existed before the patent. (Without basic chronology, I could claim to have discovered electricity.)

In short, you can help save the freedom of online content.

VoloMedia’s Bogus Patent – And Why It’s Dangerous

VoloMedia has been granted a patent for “providing episodic media.” The patent is broad enough to endanger any independent podcast or episodic media producer. Over the summer, Volomedia’s own Murgesh Navar sidestepped concerns about patent abuse to brag on the company blog about just how broad that claim was – that even non-RSS-based episodic media belong to them:

With specific reference to our newly issued 7,568,213 patent, it was filed in November 2003, almost a year before the start of podcasting.  This helps underscore the point, that for nearly six years, VoloMedia has been focused on helping publishers monetize portable media…. and has continued these efforts with the addition of a wide array of smartphone-based applications.  The patent that issued yesterday helps to tie together and reinforce the value of the various technologies and services that VoloMedia has developed to help accomplish this objective.  VoloMedia’s intent is to continue to work collaboratively with key participants in the industry, leveraging its unique range of products to further grow and accelerate the market.  Today, podcasting is 100% RSS-based.  However, the patent is not RSS-dependent.  Rather, it covers all episodic media downloads.  It just so happens that, today, the majority of episodic media downloads are RSS-based podcasts, which is why we titled our announcement the way we did.

Aside from the “before the start of podcasting” lie – and I believe “lie” is the only accurate word – it’s the implied threat that should send a chill down the spine of anyone using the Internet. Make no mistake about it: VoloMedia wants anyone doing podcasting, via any mechanism, to work with them. From that same blog entry:

The impact of a strong growing IP portfolio is such that we would expect new entrants into the podcasting arena to have a collaborative relationship with VoloMedia, just as do many of the current players.

From the patent itself, as approved, the technology VoloMedia claims to own is described as:

A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

Plain English translation: if what you’re doing with media has episodes, you owe VoloMedia.

If this patent were allowed to stand, and if VoloMedia were able to successfully enforce it, it would have a chilling effect on all Internet distribution. Regardless of the likelihood of their legal success, that underlies the fundamental problem with patent law – it has come completely unglued from reality. That alone ought to motivate people to fully document these issues and try to effect change.

Wondering why you haven’t heard of VoloMedia if they supposedly invented all episodic content online? Right now, they advertise “solutions” for advertising and analytics, an iTunes plug-in, and branded mobile apps for platforms like the iPhone. That’s it. RSS and previous formats date back to the 1990s, with the intention of covering episodic media across formats, just as the VoloMedia patent claims. These were published standards years before VoloMedia’s claim. That’s why demonstrating the details of this history become so important: they could strike down VoloMedia’s bogus patent.

Help Write Episodic Content’s History

VoloMedia’s patent twists the law, and common sense. But the same laws also provide for disproving a patent. If you can prove that an invention existed prior to the date for which a patent is claimed, you can undo the damage.

For that reason, the EFF is asking for your help. Knowing the readers of this site, I imagine there are people out there who know those details, or know people who do.

You’re all old enough to remember the Age Before Fall of 2003, right?

Here’s the call to action:

In order to bust this patent, we are looking for additional "prior art" — or evidence that the podcasting methods described in the patent were already in use before November 19, 2003. In particular, we’re looking for written descriptions of methods that allow a user to download pre-programmed episodic media like audio files or video files from a remote publisher, with the download occurring after the user subscribes to the episodes, and with the user continuing to automatically receive new episodes. You can read the entire prior art request here, and if you have something that could help, please send it to podcasting_priorart@eff.org or fill out the form on our Volomedia page.

For more information:

EFF Tackles Bogus Podcasting Patent – And We Need Your Help

Patent Busting Project: VoloMedia

Prior art serves a second purpose. Part of the reason predatory firms can abuse patent law is because technology’s history is so poorly written. I would like to see these kinds of bogus patents struck down, but I’d also like the real history behind today’s technologies to be told. So even beyond this legal battle, I hope that we begin to make the story of technologies like what is now called “podcasting” accurate, complete, and fair. Future generations of technologists will thank us.

Certainly, the VoloMedia patent, if enforced, would do tremendous harm to media today. The entire strength of the Web is that it doesn’t have to have homogenized distribution channels, that anyone can publish without centralized outlets or “collaborative relationships” with any big partner.

If you’ve never cared about intellectual property policy before, this might change your mind. No one should be allowed to un-invent the Internet.

That sounds like the usual collection of meaningless YouTube buzzwords, but yet again, in the spirit of the YouTube-fueled musical genius of Kutiman and, more recently, Tan Dun and Internet orchestras, the combination of user-contributed videos turns out to be magical. Perhaps “You” are a star, after all.

In Bb also gives You, the viewer, some powers over the remix. As the name implies, everything will blend, so you can start the videos as you wish, and control volume with the volume sliders. It’s part of the ongoing evidence that sometimes simple ideas can be deeply musical and effective.

Now, you weren’t expecting to get any more work done on this Friday afternoon / evening / Saturday morning (depending on where you live), were you?

Creator and producer Darren Solomon (Science for Girls) – like Kutiman before him – is someone with some real musical and producing chops, too, so well worth checking out his other project. (Electronic Musician recently did a write-up). Here’s what he has to say:

In Bb 2.0 is a collaborative music and spoken word project conceived by Darren Solomon from Science for Girls.

The videos can be played simultaneously — the soundtracks will work together, and the mix can be adjusted with the individual volume sliders.

Participate! Create a video and send me the link! Here are some guidelines:

• -Sing or play an instrument, in Bb major. Simple, floating textures work best, with no tempo or groove. Leave lots of silence between phrases.
• -Record in a quiet environment, with as little background noise as possible.
• -Wait about 5-10 seconds to start playing.
• -Total length should be between 1-2 minutes.
• -Thick chords or low instruments don’t work very well.
• -Record at a low volume to match the other videos.
• -You can listen to this mix on headphones while you record.
• -After you upload to YouTube, play your video along with the other videos on this page to make sure the volume matches.

Update: Wow! This got bigger than I imagined! I greatly appreciate every submission, and I will watch everything, though I may not be able to reply to each. Also, I am being selective, in order to maintain the feel of the project. Many, many thanks to all who have submitted!

Thanks to for the tip, Mike Cohen!

http://www.inbflat.net/

The song “Daisy Bell” has a special place in computer history. Max Mathews, who had by the late 50s pioneered digital synthesis using IBM 704 mainframe, arranged the tune in 1961 for vocoder-derived vocal synthesis technology on technology developed by John Larry Kelly, Jr.. Kelly himself is better known for applying number theory to investing in the markets — an unfortunate achievement in the wake of a financial collapse brought down by misuse of mathematical theory.

In 1962, Arthur C. Clarke happened to hear the 704 singing the Mathews/Kelly “Daisy Bell,” and the rest is (fictional) history – the HAL computer in the book and movie sings the song as he is being disconnected, as though the computer had learned this song as a “child.”

Here’s Max himself (namesake for Max, the patching language), overseeing a rendition of his arrangement:

Today, basic vocal synthesis has become part of the fabric of taken-for-granted tech, and the legendary rendition by a singing robotic voice part of our culture. These things are no longer futuristic or strange. Apple this week even launched a music player that announces its own tracks in the form of the new iPod shuffle.

But what happens when those same human beings imitate the computer? That’s the question asked by artists Aaron Koblin and Daniel Massey, crowdsourcing human input by inviting thousands of participants to contribute their voice using custom recording software built in Processing. The basic technique is something Koblin has used before: his Sheep Market massed an Internet labor market, paid two cents on Amazon’s Mechanical Turk, to draw walls full of thousands of sheep. Those sheep proved at once massive in quantity and unique in individual quality, and, if you squinted at them, presented a critique of global labor practice.

Koblin has also done various seminal pieces with the Processing coding language that change our perception of data and technology, like his now oft-cited “Flight Patterns,” tracing the paths of overhead planes.

This time, the computer/human relationship is truly inverted. Each singer participant imitates a sound component from the robot singing. The humans are then combined to synthesize the robot sound instead of the other way around. The result: organic technology combined into a cyborg, online chorus. No one singer knows what it is they’re singing in whole. It’s perhaps the first mass-human synthesis of sound, and the results are truly unusual.

And strange synthesis seems to be what Koblin’s work is fundamentally about. Perhaps it’s not Mathews’ sound experiments, but Kelly’s ideas about quantifying global markets that are most relevant. (For an extra dose of irony, Google HAL – you’ll get stock ticker HAL, for Haliburton, one of the few stocks that has grown in this economy.) In our reality, the University of Illinois didn’t create a super-smart, spaceship-controlling robotic brain – but they did create the Web browser.

And after all, all of us are now living in the aftermath of many crowds of people behaving collectively without genuine larger knowledge of what they were doing. Robots were envisioned at the beginning of the 20th Century as out-of-control automatons, crushing civilization, and were often then appropriated as metaphors for fascist government. Now, the vision can be equally apocalyptic, but the meaning is inverted. It’s human beings acting as automatons – without contact with human scale – that threaten to crush the Earth. And this time, they’re capitalists.

On the other hand, the beauty of art is its ability to mean many things at once. Koblin’s sheep and now his singers never cease to be whimsical. And in their beauty, they suggest that perhaps even massed crowds of Internet-connected people can sing in harmony.

For the future of humanity, I hope so. But then, if we fail, we’ll always have the robots.

“Just what do you think you’re doing, Dave?”

Bicycle Built for 2000: Info

Celebrity musicians say the darndest things. We’re still reflecting on the layers of meaning in Bob Dylan’s “New records have sound all over them.” And along comes Elton John, to say:

Hopefully the next movement in music will tear down the internet…

I do think it would be an incredible experiment to shut down the whole internet for five years and see what sort of art is produced over that span.

There’s too much technology available.

Why we must close the net [The Sun Online, bastion of journalism that it is]

Darnit, I knew something was screwing up modern music. It’s … CDM! I mean, come on, it’s not like people like me are just sitting around blogging instead of actually making som– Oh. Ahem. See your point.

Okay, in fairness, we’re once again taking something zany out of context. Sir Elton was mainly pointing out that actually being together with people is more fun than just hanging around your computer, and then makes the radical statement that maybe the world would be a better place if people actually did something rather than blogging about it. And, naturally, I kind of tend to agree.

While we’re at it, Bob Dylan turned out to be right, too — modern records do have sound all over them.

Of course, it wasn’t the Internet that was the big culprit — if anything, the Internet is galvanizing online audiences, encouraging collaboration and creative music making, and helping artists resurrect live music. (Just use it in moderation, folks. If you’re looking at those stupid cats enough that you’ve actually lost the ability to play your instrument, you’ve probably gone too far.)

Only one invention had the power to transform a society that made music in their living rooms into one that became largely passive consumers of a few superstar artists. That’d be … the phonograph. It did give us some awesome music, though, so I don’t think we did all bad.

I’m more curious about how we’re tearing down the Internet. I know how we can tear down this tiny little corner of the Internet — digg/slashdot a story enough and even our mighty, new server will come crashing to the ground. Not sure about the rest, though. Ideas?

Webcasters don’t yet have to pay new fees for their broadcast. But they’re still accruing debt — fast. Sort of like our credit card debt.

Webcasters may get a small break on the minimum fee, one that could literally have shut down “personalized” radio services. SoundExchange explains the deal thusly:

Under the new proposal, to be implemented by remand to the CRJs, SoundExchange has offered to cap the $500 per channel minimum fee at $50,000 per year for webcasters who agree to provide more detailed reporting of the music that they play and work to stop users from engaging in “streamripping” – turning Internet radio performances into a digital music library.

Note the big attached “ifs”, which are vaguely worded in the official SoundExchange announcement, and sound all the more threatening given, according to SoundExchange, the previous rates are already in effect. Whichever side you’re on here, you have to give SoundExchange some credit for, erm, negotiating skill. “Hey, so while you’re dangled over this bridge, I wonder if we might … negotiate some small items?”

The one shred of good news: apparently Congress has applied some pressure on SoundExchange to negotiate, meaning public action has actually made some difference. Whatever the ultimate solution, it’d be nice to think some sort of public involvement might push the government to do something effective.

Wired has some good reporting on this:
Net Radio Wins Partial Reprieve as Royalties Loom

Meanwhile, I have a partial vacation to get back to. See you soon.

SoundExchange Tells Congress Webcasters May Keep Streaming [Kurt Hanson / Radio and Internet Newsletter]

A number of SoundExchange’s olive branches have been largely publicity stunts, but this seems real:

1. July 15 is no longer D-Day. SoundExchange promises that, as long as broadcasters are negotiating with them and continue to pay previous rates, they don’t actually have to start coughing up money at the new rates. In other words, instead of the July 15 deadline being the melodramatic “Day the Music Dies,” it’s now more accurately the “Day the Music Tentatively Continues Under a Cloud of Uncertainty While Mysterious Closed-Door Bargaining Sessions Try to Find Some Amicable Solution, or Not, We’re Not Really Sure.”

2. Maybe SoundExchange won’t cripple mega-channel content, after all. The one side of this we hadn’t covered was that the SoundExchange position would require a minimum of US$500 per channel — meaning services like Pandora and Rhapsody would be instantly crippled because they have countless channels, rather than individualized channels in the traditional sense. Think “dog bites off Long Tail.” Supposedly they’re now making headway on this point.

SoundExchange specifically mentioned wanting to protect the interests of college radio and NPR, and anyone else who will keep negotiating with them. And if there’s one thing they love, it seems to be negotiating.

Let’s put it this way: uncertainty is bad for Internet Radio. So even if July 15 isn’t a deadline, after all (yay!), it is absolutely imperative for the business models going forward that SoundExchange and the broadcasters sort this out. As for what this means for musicians, as many of you wisely point out, the majors still dominate music listening and none of this tends to amount to much in the way of actual checks for most music creators. On the other hand, because these services are often looking for ways to monetize content, selling the actual music remains in their best interests, as well. My sense is, somewhere beyond this dark, complex era of negotiations, we may actually start to see a real business ecosystem grow around music listening, one that’s distinct from that of the radio and CD/vinyl album era. In the meantime, negotiations continue.

Hear that? Nothing. No, it’s not silence making a political point, as with the Internet Radio Day of Silence staged last week by web radio to protest punishing new royalty rates by showing what they could cause. This is an even more disturbing silence: as the deadline for new US rates for Net radio approaches, online radio’s supporters seem to be desperate and exhausted.

Here’s the problem: net radio supporters, concerned that new rates (and the backdated royalty rates that would be owed along with them) could kill Internet radio, haven’t exactly gotten a lot of good news lately. They’ve failed to stop the new rules in the courts: the U.S. Court of Appeals denied a “motion to stay” that could further postpone the ticking clock. And, despite overwhelming public support that jammed fax machines and stunned Members of Congress, the U.S. Congress has failed to actually bring a bill to the floor. Members were happy to co-sponsor legislation and say nice things to supporters, but not actually try to pass the legislation itself.

Barring any further action, Net radio is going to have a massive bill sitting on its desk this coming Monday. It’ll cover not only the new rates, but months and months of back-dated rates. With public broadcasting in a dire situation already, and independent music struggling to come into its own via fledgling Web outlets, that seems like really bad news.

Interestingly, one major outlet — one we’re big fans of here at CDM — disagrees. Last.fm argues that this is much ado about nothing, not because they’re a UK-based company (international broadcasters are subject to US rules — sorry, guys), but because they’ve managed to negotiate independently with the labels to get rates that work for them. That’s great — for Last.fm. But I question just how relevant this is to anyone else. Aside from the fact that not every single broadcaster can — or should have to — negotiate independently with labels, there’s also the fact that Last.fm can do its own programming around what it’s able to license. That isn’t the case for, say, a college public radio station doing a webstream of its usual programming. Given the strong material evidence presented by other broadcasters, it would seem that, despite Last.fm’s smug, broad pronouncements (ironic coming from a company owned by CBS), their situation is unique.

That means one thing: it’s time to hit the phones, Americans. (Hello, Rest of the World — while our laws may indeed wind up punishing your radio, too, I’m afraid there’s little you can do, other than call your American buddies and tell them to call.)

Call your Senators (you’ve got two of them) and your Representative (one of those). You can find the information here:

Capwiz.com Townhall Contact Info

And, as I’ve said before, there’s all the reason for independent artists to make this call. The new royalty rates in the Congressional bill aren’t perfect, but they would establish a framework for setting fair rates across media in the future. The idea is not to eliminate royalties; it’s to set it a rate that expanding media outlets can cover. More growth for listeners could ultimately mean more royalty rates. And by protecting independent online outlets, artists have an opportunity to ensure the growth of digital media as a means of promoting their work, which can funnel money into better revenue sources for us, from commissions to album sales to live music ticket sales.

For more on the indie artist perspective, see Independent Artists Fear the Demise of Internet Radio from The Baltimore Sun on (ironically) July 4.

Feel free to let us know how your Congresspeople respond here in comments. And let’s hope that this largely inactive Congress can at least bring this important debate to the floor, rather than remaining silent themselves. Wherever you stand, total inaction is the worst kind of silence of all.

Morgan Sutherland has been playing with Google Co-op, a search engine construction technology, and came up with this:

Electronic Music Search

It searches over a hundred sites related to music technology, from music sites to sites like CDM. And, okay, I’m exaggerating: the engine works well for other stuff, too. Because it’s a cooperative engine, you can even contribute to make it better. Give it a spin and let us know what you think, and pass along any custom search engines you’ve got yourself.

If you switch on your favorite radio stream and hear something unusual — people talking about Internet policy, ambient sounds, or nothing at all — you’re getting a glimpse of a world that could be here by next month. To illustrate the devastating effect new US royalty rates could have on online broadcasters, broadcasters large and small are making today, Tuesday, June 26, a “day of silence.” They’re not just being dramatic: online broadcasters from public radio stations to big services like Rhapsody have said they simply won’t be able to swallow the new rates. Small broadcasters don’t have the money, and big broadcasters can’t justify losing money to shareholders. (Worse, the rates are retroactive, so this could really damage already-beleaguered American public broadcasting.)

Here’s why the rates are bad, and how to take action today.

New Rules: Bad for Music Creators

As many readers do, I believe in fair royalties for artists. Getting royalties from online broadcasters is good for musicians. But musicians need a rate that makes sense for them. This makes sense: “Give me 50 cents for each dollar you make off my music.” This does not make sense: “Give me three dollars for each dollar you make off my music.” You can debate the former figure, but by the time you get to the latter, the other party is going to simply drop you. And this isn’t an exaggeration, either. AccuRadio, RadioIo, Digitally Imported, Radio Paradise, and 3WK recently illustrated the millions they would owe in CRB Royalties, which increase the percentage of their income that go to royalties from 11% to around 300%. Public radio is in a similar boat.

For just one example, see CDM’s interview with Pandora’s founder.

And that, of course, assumes royalties are the main source of income for musicians, when the opposite is true. I’ve talked to musicians informally — some of them pretty high up the food chain — and gotten the same response. Their biggest income source is often things like live tours. The knee-jerk response of the Interwebs to music income is oversimplified, it’s true — pundits with no experience in trying to live off their music will just say, “oh, it’s publicity, it should all be free.” In fact, I don’t think musicians should have to give up royalties if they don’t want to: they own the music. In this case, though, it’s the worst-case scenario: give up the royalties and the exposure to new audiences (because these outlets will simply go away rather than pay such punishing fees).

I think there is a lot of good debate to be had around how to charge for music, how to promote music, how to define and protect intellectual property. In this case, though, the issue is so clear-cut I feel obligated to advocate for one side. We can’t have any of those other debates if we start out with a crippling rate that makes no sense. And even if you want Creative Commons-licensed music that is royalty-free, that music will take time to flourish; if you cut off the ecosystem before it can grow, it’s in trouble, too.

The Solution: Internet Radio Equality

Fortunately, today is not the day to just sit around and get depressed. Today is a day for action. For the reasons above, and based on your feedback, I believe most musicians and composers will support fair rules for royalties.

If you’re in the United States, call your U.S. Representative and your two Senators, and ask them to support the Internet Radio Equality Act. The Act would protect webcasters from unfair rates, and set a rate that benefits music creators and webcasters alike. And even if you’re not, you’ll find plenty of good resources — and you can help spread the word on your blog / site to people who are in the US.

Contact Your Senators and Representatives Now to Save Net Radio

Day of Silence at Radio and Internet Newsletter (Lots of links)

H.R. 2060 Full Text and Cosponsors (Check out the Internet Radio Equality Act for yourself. If you agree with it, take action. If your Representative is on the current cosponsor list, thank them. If not, encourage them to cosponsor and to support the legislation.)

D-Day for Webcasters Terrific coverage and discussion at KCRW Radio Los Angeles

CDMers for Internet Radio Equality

If you’ve contacted your Rep and Senators, leave us a note in comments and let us know what they say. We’ll keep a running tally through the day of how things are going for pro-equality CDMers throughout the US. And if you’re from around other parts of the world, feel free to post links to your commentary on your site here.