If you haven’t been following the (excellent) coverage elsewhere, just how bad is the “Firewall of the United States,” the draconian Internet dystopia misguided legislation in the US proposes to create?

That legislation is so vague, so far-reaching, so poorly-designed, that it potentially threatens all kinds of sites musicians regularly use. And little wonder: a backwards legislation process in the US has locked out the very Internet and tech companies that have until now been glimmers of hope in a stagnant US economy.

The crux of this issue is the impact on legal sites, and democracy and speech online. For an alternative view, the MPAA argument is that existing Digital Millenium Copyright Act safe harbor provisions would continue to exist under the new legislation, thus protecting legal sites – like this one. However, I find compelling the arguments of speech and legal policy advocates who point to differences in the way the enforcement mechanism works here, which could potentially invalidate that safe harbor and shift undue burden to publishers before they have time to respond.

Social networks, file sharing services, and other tools we use (lobbyists, for instance, call out even things like MegaUpload as “rogue”) are endangered.

The presumed answer, that “you’ll be fine if you have nothing to hide,” is the worst kind of defense for what can only be described as bald-faced censorship. Because complaints are guilty-until-proven-innocent, because the legislation is too broadly worded, the net effect is that any site publishing online could be brought down by a simple complaint – even from a competitor or aggrieved party. The history of “snitch”-based censorship of all the worst kinds is littered with cautionary tales of what happens when that’s the standard.

And that’s to say nothing of the potential for higher costs, negative growth, and legal burdens on the entire Internet service ecosystem on which sites like this one depend, not to mention new DNS security chaos triggered by turning the US – still the largest Web consuming country – into something that resembles China, Iran, and Syria.

An alliance of people who claim to speak in the name of musicians, content creators, and copyright holders are right now proceeding on a course that would destroy a lot of the most innovative tools that protect your livelihood. They have some reasonable intentions in mind – a justifiable fear of big sites that flaunt copyright rules to share anything. But they extend that into a policy that unjustifiably expands its reach to legal sites. That’s why:

Google / YouTube, Facebook, Twitter, and other sites that have helped us spread the word about our music are opposing it, afraid it could shut the entire sites down or usher in a new, more censored, shrinking network. (Heck, even LinkedIn and Mozilla are worried, and a site that shares resumes hardly seems the kind of “rogue” and pro-infringement villain the record industry keeps trying to paint as its critics.)

Kickstarter, the tool that has helped artists fund themselves and do preorder sales, is opposing the bill for fear a single instance of infringement could block everyone’s projects.

Tumblr, a key publishing platform used by many musicians and artists, warned its users via a dashboard that the legislation threatened their ability to express themselves online. Tumblr has a specific call to action.

Democracy activists worry that this silence voices of democracy around the world by blocking the tools they use to get around censorship (ironically, by creating similar censorship in what had been a country with online freedom).

The ultimate irony: because the SOPA legislation would block DNS and not IP addresses, it would do little to stem actual piracy of music and video. Instead, it threatens the freedom of the artists themselves to use these tools.

And again, because you could see an entire website blocked, not just a specific infringement, the legislation threatens to rob artists and musicians of tools on which they rely to promote their own music that they themselves own.

None of this has stopped the record industry lobbyists from remaining full entrenched in their position. For instance, this week, RIAA’s Senior Executive VP Mitch Glazier responded in an article headlines:

RIAA Question To Rogue Sites Critics: What Specifically Is Your Answer?

Glazier’s argument:

The next time you hear a vague, sweeping critique, backed by the platitude that of course intellectual property protections are supported, we encourage you to ask: what specific legislative proposal do you have that would meaningfully address this problem?”

Actually, no. In the event legislation is really, truly insane, it’s not in any way the burden of the critic of that legislation to propose an alternative. Here, let me illustrate:

The Protect Humanity from Deer Ticks Legislation, which proposes to … burn down all the forests.

Critic: I have a proposal. Let’s not burn down all the forests.

See? It’s concrete, it’s specific. Yes, our critique is “vague and sweeping,” because the legislation in question is vague and sweeping and wrong.

It’s absolutely, totally valid to make the concrete, legislative action not voting for a bad bill. The RIAA ought to know that; it’s pretty basic lobbying.

Yet again, though, those organizations let down their labels, who are now struggling to find new growth and revenue, with legislation that hurts those same members. Who is the rogue, anyway?

There’s far better explanation of this legislation than mine, and it’s not too late to act:
http://americancensorship.org/ [Electronic Frontier Foundation, with brilliant infographics and detailed, fair background reading]

Stop the Internet Blacklist Legislation [EFF]

Stop the Great Firewall of America [New York Times op-ed from New America Foundation senior fellow Rebecca MacKinnon]

I need your help–please. Call your congressperson? [Terrific, straightforward editorial from an engineer, Matt Cutts - one who happens to work at Google, but writing on his own time]

SOPA, controversial online piracy bill, gains support as lobbying intensifies [The Washington Post early this morning, which illustrates to me in its quotes from the bills' supporters just how out of touch they are]

Sham of SOPA hearings riles up key internet figures [Silicon Republic on how tech and Internet firms were locked out of the legislation's creation]

Great, clear Lifehacker story on how this works and what to do

Shocklee.com has done a terrific job of covering this story as it evolved, speaking of artists, as well as via their Twitter feed

OpenCongress.org links to information on the bill, full text of the bill, co-signers, actions, supporters and opponents, and even dollar-sign figures on how much lobbyists on each side of the issue (yes, including opposition) have given to elected officials.

From there, you can read the bills, make up your own mind, and if you’re a US citizen, talk to the people who represent you in Washington.

H.R. 3261, the Stop Online Piracy Act
S. 968, the Protect IP Act of 2011

Among Senate bill opponents, as you can learn from that site – even though the Senate bill is at least a little less draconian – American Association of Law Libraries, American Library Association, and Human Rights Watch.

If you’re a citizen of the United States, I would ask you to call your Representative now. Tell them calmly (remembering, they may even be on your side, and regardless, they’re your elected representative) what you think.

If you do call your Representative, let CDM know what their office says; feel free to leave that response in comments.

On tablets, on displays, multi-touch control these days is calibrated largely as a software interface – more Starship Enterprise panel than violin. As such, it works well for production tools and exploring compositional ideas. But it falls far short of being an instrument: even on the much-hyped iPad, touch timing and sensitivity is too imprecise, and the absence of tactile feedback and real, kinetic resistance makes you feel like an operator rather than a musician.

Several projects in experimental instrument research seek to change that. But of all of them, the one that has generated the most enthusiasm is Randy Jones’ Soundplane, co-developed with hardware designer Brian Willoughby. CDM shares a conversation today with Randy about his brilliant Aalto synth, and I’m working on a review soon. But wonderful as Aalto is, many of us are still eager to hear more of the Soundplane controller. I chose to wax poetic and optimistic back in December of 2008:
Intimate Control: Multi-Touch, New Models, and What 2009 is Really About

I shouldn’t have put a year on my predictions, though – good things take time. (If I could clearly recall what happened in 2009, maybe my general prediction was correct. The past tends to blur together for me into a continuum in the manner of the modern technologist, a vague assemblage of stuff that happened in the 60s with things that are actually still in the future.)

The good news: Randy continues working on the Soundplane, and Aalto will help.

Continuing our interview, here are the thoughts most relevant to Soundplane — and a glimpse of what it’s looking like as he works on it in the lab.

First, Randy explains his ideas about running a small business, continuing what he had to say in our Aalto story. The basic idea: Aalto’s software will bootstrap Soundplane’s hardware.

I think the whole idea of venture capital is sort of a poisonous one. It’s a little like bands wanting to get signed right away. The first thing you want to focus on is giving up your autonomy, really?

Instead, why not scrape together whatever you can from friends or family and just make something that you can sell right away, however small. I didn’t have enough saved to finish the Soundplane project so halfway through I switched to putting out Aalto as a plan B for paying the rent. Now it’s out and it’s a product I’m proud of that I think reflects where we’re coming from, and it’s going to fund Soundplane development, and it’s letting tons of people know we exist. Just get a foot in the door, do something useful.

He also shares his feelings about patents:

Some people won’t like to hear this, but I applied for a patent on the sensor used in the Soundplane. I know, the patent system is totally broken, and often, if not usually, used in stupid ways. But if there’s one thing I think it is actually good for, it’s to protect small companies like ours that innovate against a bigger entity simply stealing their R&D. This is why it was designed, right? I don’t know if our patent will save the day if such a thing ever happens, but if it does I’d much rather have one than not. It’s a pain to write one but it’s not impossible, you just need a lot of patience. “Patent it Yourself“, Nolo Press, is a good reference.

The patent question raises some additional questions for me – in fact, I’d love to see open source hardware that’s also backed by patent protection, in the same way that the GPL license is made tenable largely through the existence of traditional copyright laws.

But I do tend to agree that in the case of a truly novel technology, which this is, patent protection may be necessary. The question for projects like this will be whether to operate as a conventional, patent-protected design, or whether some sort of open source model with a patent covenant and a copyleft license like GPL will make sense — both preventing exploitation and allowing free experimentation. If there are any IP lawyers lurking around out there, let us know (I have some contacts, too); and definitely let us know if that’s a conversation you’d like us to continue.

In the meantime, the important thing is that Soundplane lives, and using Aalto could help it come to fruition. We’ll absolutely keep you posted.

As proof, though, more shots from the lab:

Also, must-read article from shortly after Jones’ NIME presentation:
Why Soundplane?

The whole article is worth reading, but Jones argues that not only is it likely many people will try to do tactile multi-touch, but it may be necessary. For those of you not all that good at hardware design, you could be just as essential as well to there being any future for these curiosities. The designers need other designers. The hardware needs software creators – lots of them. The software creators need to try lots of ideas. And everybody needs players, composers … users.

It’s all-too-tempting to sit back on the Web and marvel at what everyone else is doing, to take their genius and novelty as an engraved invitation to give up on your own work. “It’s been done before.” “Someone else is already doing this.” It’s probably a topic for a dedicated article, but it’s simply the wrong reaction. “It’s been done before — maybe it’s worth doing. Or doing again. Or doing better. Or doing over and over again.” “Other people are doing this — that means I have someone else to do it with.”

Historically, revolutions aren’t solo pieces. They’re ensembles.

Updated: speaking of work being ensembles, while Randy’s name is most associated with the Soundplane project, credit is due to hardware designer Brian Willoughby, who did the hardware design for the instrument. As he wrote in comments on CDM in 2010, when we covered Roger Linn’s Linnstrument: “For my part, I’ve been deep into the process of designing the analog circuits, DSP hardware and firmware necessary for the product, so it’s nice to poke my head up for a moment and see interest on this site, as well as to hear about other engineers trying new things and inspiring ideas.”

To me, a license is a tool: it’s a means to an end. But that means that the tool ought to be doing the job you chose for it.

After news broke that the Canadian public broadcaster CBC was moving away from Creative Commons, we launched on CDM into a somewhat informal (and occasionally heated) discussion of CC licensing and specifically the non-commercial restriction most musicians attach to their music.

Here’s a summary of what I can conclude from those conversations.

• Abuse of non-commercial CC material is rampant. Very often, publishers and broadcasters think Creative Commons material with non-commercial licensing is free for them to use when it isn’t. Almost all publishers fall under the category “commercial” – even “public” broadcasters like the CBC. That’s not to say CC is a bad thing – abuse of copyrighted material is rampant, too – but if well-meaning publishers are abusing the license, it’s an opportunity to educate people.
• The CBC went to the opposite extreme. Tossing all CC music just because “most” is non-commercial doesn’t make any sense. There’s still a large volume of material that is explicitly free for the CBC to use that lacks the non-commercial restriction. It’s not hard to find, and the licensing – unlike NC – is very, very clear.
• Some of you apply “non-commercial” because it’s really what you mean. Great! No problem! (Actually, one problem – see the first point above. While it’s an abuse of the license, you may find people blaze right past your “non-commercial” clause.)
• Some of you apply “non-commercial” and it’s not what you mean. If you’re restricting uses under the license that are cases where you actually want people to be free to share, then the NC requirement probably isn’t a good idea. This is what ultimately prompted me to drop “NC” myself.

Matching the license to what you want people to do is important. It’s like putting up a big “KEEP OFF THE GRASS” sign and then wondering why no one’s dropping by for a picnic. Conversely, if you don’t want people to have a picnic, it’s well within your rights to post a “KEEP OFF THE GRASS SIGN” — and if it’s your lawn, frankly, it’s not my business. It’s the same with your music or images.

I still think that the non-commercial rule in CC is vague to a fault, though that’s best left to a separate discussion. And I don’t want to overstate my complaint. I believe the CBC is right – and I’m equally confident that CDM qualifies as “commercial” based on the previous CC study. So, the larger problem with non-commercial may not be that it’s unclear, but that it’s not understood – and that at least some of the musicians who are using it don’t understand the extent to which it restricts use of their work.

As for the CBC, Creative Commons has responded to the story, and have pointed out that there’s nothing stopping them from using CC works that are available for commercial use:

It is good to know that the CBC will continue to use CC-licensed works in some cases, and their explanation of why not in others. And it is true that only a minority of CC-licensed music is released under a license that permits commercial use — for example, about 26% of the nearly 40,000 CC-licensed albums on Jamendo.

However, as Michael Geist, Cory Doctorow, and many others have subsequently pointed out, CC-licensed music that does permit commercial use ought be allowed.

They also have some tips for finding music that’s free for commercial use, in case you’re looking yourself:
Commercial music guide on the CC wiki
Music on SoundCloud, Wikimedia Commons, Libre.fm

Read their full response:
On CBC podcasts and CC-licensed music available for commercial use [Creative Commons blog]
…as written by CC VP Mike Linksvayer. (Thanks, Cameron Parkins!)

Just as with production tools, I believe our role on CDM is to talk about how to best use the tools you want. Copyright, Creative Commons, public domain, open source, commercial, free, non-profit, whatever it may be can be a means to your end. So, I hope we’ll continue to follow this story and find some information that’s useful to musicians.

Someone in comments brought up the question of whether the music is crap. But, you know, as artists, I don’t think you even know the answer to that question. Mostly you want to find a way to do something with your s***, and hope, at least, it’s good s*** someone enjoys. Carry on.

I have no problem with copyrighting music. So I’ll be blunt: my ongoing impression of Creative Commons licensing is that you should either choose a license that allows for commercial use, or opt for traditional copyright and licensing. The popular “non-commercial” restriction is problematic. It does too little to prevent exploitation, and too much to prevent exactly the kind of use that’s the reason you’d choose CC in the first place. That’s not an effective compromise; it’s more like a lose-lose scenario. If you really want people to ask permission to use your work, you can use a standard copyright. (You don’t even have to do anything, under US law.)

Latest case in point: the CBC.

An off-hand comment on the (excellent, by the way) Spark podcast suggested that management had instructed producers to stop using Creative Commons-licensed music. After a blog post by Michael Geist, the story has spread around an angered blogosphere. Some even interpreted a later comment to mean the whole thing was the work of CC opponents, through licensing deals that explicitly forbade CC. (Don’t get excited yet – it seems clear that’s not what happened, and those organizations wouldn’t be able to do that even if they wanted.)

Let’s skip straight to the point. Techdirt’s Mike Masnick got the bottom line of this one, which is that CBC eventually gave up on CC-licensed works because of the prominence of non-commercial restrictions. They note this comment from CBC’s Chris Boyce:

The issue with our use of Creative Commons music is that a lot of our content is readily available on a multitude of platforms, some of which are deemed to be “commercial” in nature (e.g. streaming with pre-roll ads, or pay for download on iTunes) and currently the vast majority of the music available under a Creative Commons license prohibits commercial use.

In order to ensure that we continue to be in line with current Canadian copyright laws, and given the lack of a wide range of music that has a Creative Commons license allowing for commercial use, we made a decision to use music from our production library in our podcasts as this music has the proper usage rights attached.

That seems to me to sum up the story: whatever the wisdom of CBC’s solution, this is a failure of the non-commercial restriction. And that should hardly come as news to anyone who has followed the problems with “NC.” It’s a Saturday, so consider this a hastily-devised rant rather than a fully-researched story. But I’d like to see a more productive conversation start on this whole issue, so I’ll kick it off by sharing my own thoughts on this.

Here’s the problem. The whole idea of Creative Commons licensing is to provide a blanket license before someone has to ask permission. By streamlining the process in this way, the goal is to get wider distribution and reuse of your work. And as everything from samples to Flickr images can demonstrate, it works. Now, naturally, wide distribution will also raise fears about commercial exploitation, and as with any license, you’re the owner – you can provide whatever restrictions you like. People want to share, but they don’t want that sharing to be abused. I think the impulse to look for some sort of “some rights reserved” is a natural one. Unfortunately, using non-commercial restrictions as the solution can create more problems. The non-commercial rules are vaguely worded, implying a very broad definition. It’s never properly defined, and no one really knows what it means. The net result is that works with the restriction attached aren’t free for use. You have to err on the side of caution; if you think there’s any chance you may be violating the license, you shouldn’t use the work.

That’s the crossroads I reached on this very site. Chris Randall of Audio Damage and Analog Industries, who has released a significant amount of CC-licensed music, pointed out to me that CDM was blatantly violating the intent of the non-commercial restriction. Sure enough, I came to the same conclusion, as a survey undertaken by the CC folks found that many of the people using the non-commercial restriction considered use on a site with advertising revenue to be commercial use. CDM readers and Flickr users protested. But it doesn’t matter: I now almost exclusively use works without it, to be safe.

There is more to this story, though.

CBC ought to be able to use CC music. CBC is clearly overreacting if they’re avoiding all CC-licensed work. There is work out there that lacks the non-commercial use restriction.

…but the onus falls on CC advocates to face the non-commercial problem head-on. It seems to me that it’s the responsibility of the CC-using community here to point to work that lacks this restriction, and to build tools that make those works easier to find. (The checkbox pictured here is a great place to start.) It’s also about time to have a serious discussion of the non-commercial restriction, not just in the definition itself but, holistically, why people do want to reserve “some rights,” and how to define those rights. That conversation should be a frank and open one. Commercial exploitation is a real threat. It’s an issue brought up by CC users, by CC advocates, and CC critics alike. It’s something obviously all of us are thinking about. But we should separate the three dimensions of it:

1. A hypothetical problem — the potential exploitation of work in ways that CC users don’t like. (And that means we have to determine what kind of hypothetical exploitation has people scared.)

2. A real-world problem. (There have certainly been instances of what people might consider exploitation, both of copyrighted and CC-licensed works.)

3. A number of potential remedies — of which adding a “non-commercial” CC license is only one, and possibly not even an ample remedy for the kind of exploitation people want to prevent.

Some of the blame I think does fall on CC the organization. They used the non-commercial clause as a way to say, “hey, you can distribute your work for free and get paid by requiring licensing.” You can have your cake and eat it, too — or you can give away your cake, but also sell it. The realities of making that work are much messier than they admitted, and at the same time the organization sent mixed messages. “Here’s the non-commercial clause, which is a remedy to this problem you’re worried about. Oh, but we don’t think you should use it. And actually, we don’t know what it means, so we’ll have to do a research study.”

It’s time to clean up that mess and remedy the problem.

CC users should consider Share Alike. This is a much, much longer conversation, so let me simply quote the plain-English description of Creative Commons’ Share Alike principle:

If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.

Unlike the description of non-commercial – there’s never actually a detailed description of what constitutes “commercial” use — Share Alike is very clear. Anyone using your work must license whatever work they make.

Yes, this is an issue for open-source hardware, too. I won’t go there today, because hardware incorporates other issues. It’s tangible, and that means legal licensing is different. The problems of interpreting the definition of “commercial,” however, remain, and there’s a threat that open source hardware makers will recreate some of the problems with Creative Commons-licensed media in the hardware domain by modeling their work on the same license. Consider the can of worms opened, but I’ll deal with that in a separate story.

The podcast’s great.

Anyway, go listen to Spark. It’s a fantastic podcast:
Spark October 3-6

And CC or not, speaking as a journalist here: if you want your music shared, send it to media outlets with an explicit license, CC or otherwise, making it clear they can use it however they wish. If publicity is valuable to you, it may be a worthy investment. (I’ve seen what publicists and PR people charge. “Free” publicity isn’t worth zero; that’s for sure.)

Thanks to Myles Ashley Borins for the tip!

Update – for our Canadian readers:
If you’d like to clarify the CBC’s policy, podcaster and producer Lily Mills tells me via Twitter that Canadian citizens and journalists can submit a formal request for information under Canadian law:
Access to Information Act

(CDM, as a US publication, is unable to do so.) If someone would like to volunteer to do so, shout out in comments. I think it would be useful to know the formal policy and reasoning from CBC.

Finding samples and remix-able music — or advertising the availability of tracks you want to release for that purpose — has just gotten a lot easier. As part of a raft of improvements to the SoundCloud service – including some nice non-CC enhancements to search and tag browsing – the service has boosted integration with free licenses. You can now search for CC content, and the license is visible directly in the player, going beyond what even services like Flickr and Vimeo have done.

You can add SoundCloud to CC-focused sites like ccMixter and the Freesound Project as tools in your freely-licensed arsenal.

I spoke to the folks at SoundCloud about the changes, and about how they see Creative Commons fitting into a larger picture. Henrik Lenberg, Business Developer at SoundCloud responds.

CDM: Can you detail exactly what’s changed?

SC: As far as Creative Commons features are concerned, the biggest changes in this release have been the introduction of a CC landing and discovery page, prominent placement of license information on track players and pages, and advanced search by license type. The basic features before provided a really simple way to select a license, and these changes make it more straightforward to find and identify Creative Commons-licensed material on the site. SoundCloud is geared particularly towards audio creators, and this release should make it much simpler to find samples, sounds, and tracks that can be used for remixes, mashups, and other compositions.

What have been some of your favorite uses of CC so far on SoundCloud?

We’re just wrapping up a series of blog posts with some of our favorite CC users on the site, which can be seen at http://blog.soundcloud.com/tag/ccinterviews. You can see there we’re getting all kinds of music under CC licenses on SoundCloud, but also field recordings, audiobooks, and plenty of other sounds. As far as samples are concerned, we’ve got the OLPC Sample collection online, which is over 6000 CC-BY samples, as well as really interesting collections, like the Stretta Samples and Karmadrums who makes on-demand drum loops on real drums. We’ve also got all kinds of sample-making companies, including Twisted Tools and Sample Magic.

How do you hope the new functionality might be used? What do you think might come out of it artistically?

I’m sure that some of the uses will surprise even us, but I’m expecting to see the same kind of outpouring of creativity that has accompanied Creative Commons licenses on other platforms. I hope there’s an uptick in remixes of CC licensed material on the site, and I imagine that video creators, podcasters, independent video game makers, and other people who need to find music for their works will begin to discover SoundCloud as a resource.

With more Music Hack Days coming up, what does this release mean for the developer community?

We’ve included Creative Commons filtering in our API so now you can build apps that let you find and use CC content in various ways. For example, one thing we expect to see is the possibility to search and browse samples and sound effects within your favorite sequencer or audio editor, then preview the results and drag and drop the sounds you prefer right into your arrangement. We believe that bringing tools and content closer together really can change how audio is shared and reused, and Creative Commons is an important piece of getting this puzzle together. We’re big music hack day fans, and glad to offer developers an easy-to-use resource for any type of CC content.

We hear regularly from the Creative Commons organization about how they perceive the business potential of artists, and why it isn’t simply creators giving their work away for free with no reciprocal benefit. We also hear from naysayers who, very often, seem to have little understanding or experience of CC. Coming at this from the perspective of a third party, what do you think the value might be for independent artists?

Well, first off, it’s absolutely true that Creative Commons licenses aren’t for every artist, and they’re not a magic bullet to finding a business model or getting your music heard. But it’s also important to note that every CC license requires at least attribution to the original artist. While there are certainly some artists who have the problem of too many fans trying to listen to their music free, many more are grappling with the issue of getting their name out there, and all of the CC licenses make sure that if your material is being used you’re still getting credit.

Ultimately, there are a lot of musicians and other artists who actually want to allow people to copy music for their friends, or to sample it or remix it, or use it in an independent film or game. Creative Commons is just about letting artists and users make that agreement in a simple and straightforward way, by granting permission in advance, and reserving the rights that artists do want to hold on to. Again, not everybody sees things the same way, and we’re not trying to make everybody use one license or another. For users who do want to use these, we’re simply giving them the freedom to do so.

What about labels, who have tended (with the exception of the various netlabels who focus on CC) not to use the technology? Is there a place to demonstrate some use to that crowd?

There may be a way to convince labels to use Creative Commons, but it’s not really something we’re focusing on at SoundCloud. Netlabels using CC have gotten increasingly popular, and there are many very high-quality ones on SoundCloud now. There have also been a few high-profile artists who have broken from their labels in order to pursue alternate distribution methods, including releasing under Creative Commons licenses, but those are still a bit rare. Maybe as more examples pop up of artists releasing profitable CC-licensed music, that will convince the major labels to experiment a bit more. We’re not here to push one business model or another, but if it ends up being something they want to explore, we’re ready for them with the features!

If you’re ready to check out SoundCloud’s Creative Commons implementation, have a look here:

http://soundcloud.com/creativecommons/samples
Find, Remix and Reuse – SoundCloud Style [SoundCloud blog]

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?)

Gibson, the guitar company, has been on an utterly absurd campaign against music games, bringing lawsuits against the developers of both Guitar Hero and Rock Band and even against retailers. In the latest illustration of how screwed up patent law is, and just how over-litigious it has made technology in this country, the patent was based on a Gibson patent for a “System and method for generating and controlling a simulated musical concert experience.” Never mind that Gibson’s patent looks nothing like Guitar Hero, or that if interpreted that loosely, Gibson could theoretically sue any music software maker.

See my previous break-down of the patent and the twisted logic of the case:
Gibson Guitar to Guitar Hero Maker: We Own All Digital Musical Reality

And following development:
Gibson Guitar Loses Mind, Sues Entire Planet

Our friend Nilay Patel gets the scoop at Engadget that Gibson has lost its Guitar Hero case in California US District Court. Engadget also has a PDF of the decision:

Gibson loses Guitar Hero patent lawsuit, gets booed off stage

You can read juicy bits in the final ruling (PDF):

• Gibson’s own counsel withdrew from the case after the guitar maker refused their request for information. That’s right: Gibson wasn’t cooperating with their own lawyers. (Gibson later was represented by different counsel.)
• Gibson’s own corporate general counsel didn’t respond to requests from the court.
• Gibson started trying to force third-party Activision system providers to provide short-notice depositions, much to the dismay of the court and ACtivision, given Gibson’s own lack of cooperation.
• Gibson tried to use a YouTube video of a Guitar Hero hacker on the record, which the court found irrelevant (and, I think, laughable.)
• Gibson variously tried, unsuccessfully, legal gymnastics by which it could redefine musical instruments to enforce its ultimately irrelevant patent.

It’s also fun reading lawyers try to define what a musical instrument is in the context of this case. Ultimately, the determining factor in this case appears to be whether the musical instrument itself produces some kind of audio signal, not control signal. Yep, that’s right: it sounds like Gibson lost out because the Guitar Hero controller was defined as a controller but not an instrument. The court decision, showing unusual technical savvy, notes that the “Musical Instrument Digital Interface” (which they incorrectly call “device interface”) has been used for non-musical purposes, despite its name. In a fit of extreme hubris, Gibson at one point seems to have claimed ownership of MIDI for guitar controllers, despite prior art.

I’m certainly not qualified to interpret the judgment, but we can say this: Gibson lost. And they lost on almost every single point, from apparently abusing the court process to losing just about every detail they tried to prove. The court even says the Gibson arguments “border on the frivolous.”

The extent of their loss says to me the other cases have about a snowball’s chance, which raises the question of what Gibson was trying to accomplish in the first place. You have to wonder if they hoped intimidating legal action could help them win contract terms. But it’s nice to see the law win out — and raises hopes that, in the long run, legal remedies could eventually fix frivolous abuses of the patent system.

Oh, yeah – and we can all be relieved that Gibson neither owns the idea of making things look like guitars, nor musical simulation. Phew.

We’ve got further compelling evidence Apple doesn’t really own multi-touch and multi-touch gestures — and that other devices and interfaces will press forward (which is a good thing for everyone). Lest you think I’m straying too far from creating digital music, by the way, I think this means lots of new music apps – as musicians have devoured multi-touch more than any other group (and certainly have used it for the coolest stuff).

I am concerned about how multi-touch innovation will wrangle with over-zealous intellectual property legal wrangling. But hopefully I made it clear that, even with my concerns about Apple, the report that Google had pulled multi-touch capabilities to please Apple was full of question marks.

Luke Hutchison is more of an expert in this field than any Silicon Valley rumor reporter. Luke pulled off the kernel module hack that turns the Android G1 into a multi-touch gesture-capable device (with, incidentally, some examples that have tantalizing possibilities for musical applications). He has detailed instructions on that, if you’re interested – and his familiarity with the code gives him a compelling argument that Google did not cave to Apple – and Apple may not even have relevant patents in this case.

It’s worth reading his whole story as it’s full of technical details as far as multi-touch’s future on G1, but here’s the executive summary as far as Apple blocking multi-touch on Android:

(1) The G1 was simply never intended to be a multi-touch device.
(2) Apple’s multitouch patent may not even cover the pinch gesture.
(3) Google *is* interested in multitouch capabilities, it’s just nowhere near the top of their priority list.
(4) Google will deal with legal issues if and when they come up, but that hardly stops them doing something they think should be done.
(5) Apparently the driver for a resistive MT-capable/iPhone-like touchscreen was checked into the git kernel tree after the 1.0 release, so we now have (at least?) two MT-capable drivers in the tree.

In other words, if you make an iClone, expect to hear from Apple legal. If you just want to use or develop multi-touch devices and interfaces, rest easy – because even if Apple decides to make trouble, they’re likely facing even more multi-touch gesture-controlled devices and law teams to back them up.

Definitely worth reading, at Luke’s blog:
The Android Multi-Touch Conspiracy… and more tinfoil hats

Zoom-Zoom-Zoom — Get Multi-Touch Zooming Support on your T-Mobile G1 TODAY (and by the way, you can hack the kernel on new G1s without the Android developer unit?)

CNET has a terrific interview with Rio Caraeff of Universal Music Group’s eLabs. Caraeff is a new breed of record exec – the kind of people we’d actually want running the industry. He’s a software guy and a mobile guy.

UMG digital chief on iTunes, DRM, and Android [CNET Digital Media]

The record industry has clearly seen the light on DRM, so that’s not really news, except that now you can see them saying it in public (and I imagine there has been long-running internal lobbying from those in the industry who got it long ago).

The news for me really what he has to say about the mobile space – his expertise. On iPod, he says what we don’t need is more proprietary alternatives: “I don’t think having more devices and more proprietary software or hardware in the market is the right answer.”

But most encouraging to me is how bullish he is on Google’s Android platform – and the fact that the proof is already available in the numbers available now. It seems the Web world is attracted to whatever is shiny, new, and not-ready-for-primetime, so bloggers last week forgot about Android and moved on to Palm’s (not-shipping) WebOS and Palm pre. That’s all fine and good, and WebOS certainly follows some of the same trends Android does, but let’s not lose focus just yet, right?

Universal worked with Amazon on their integrated Android store, and the results sound very impressive.

…now Amazon will tell you that Android is their single largest source of downloads from any third-party partnership that they’ve ever done. It’s a tremendous amount of consumption that we’re seeing once you integrate it seamlessly into a user experience that’s elegant and easy to use. It’s not 10 clicks. It’s very elegant and easy. We’re starting to see consumption increase significantly.

It’s early days on Android. There’s not that many out there on T-Mobile, but even with the small amount out there, they’re downloading and purchasing a ton of music over the air on T-Mobile.

This to me points to some encouraging signs:

Android has an edge for developers. Note that from a development, user experience, and deployment perspective, the Android platform was a big part of this success. You couldn’t do an Amazon store on the iPhone.

Android has legs. None of that would be meaningful if it weren’t translating to sales. But this says to me that the open Android platform can be a successful outlet, without necessarily needing a middleman like Apple. And it suggests some positive things for, say, developers selling software (or musicians doing weird, 99-cent generative music games) on the platform.

Mobile sales in general could be big for music. The whole problem for the record industry isn’t all that complicated: it’s that one medium (CDs) has been shrinking in dollar figures faster than its successor (online music) has been growing. So the industry just needs new growth. It’s encouraging to see that that could mean just selling music at reasonable prices, free of DRM. That’s a huge change from the previous plan, which appeared to be slicing 30 seconds out of a track, calling it a “ringtone,” and charging more than you would for a single.

There’s plenty worth checking out in the whole story. But this does make me feel even more excited about Android and what’s possible. The Amazon store is amazing: you buy and download tracks over the air, and then bring them back to your machine. Sure, you can do that with iTunes, and finally iTunes doesn’t have DRM on its tracks. But Amazon was able to come onto the device as a third party (working with HTC, Google, and TMobile). With Apple, the only way to get tracks back on your computer is to go through their iTunes conduit. With Amazon, you can do whatever you like. And the underlying stacks that enable the app are all open source, from the APIs to the developer tools. That’s a pretty marked difference.

Having a different mechanism for selling music could also mean that the UMG of tomorrow is very different from the UMG of yesterday. It’s certainly encouraging to think there are people at the company who see technology in the way a lot of the rest of us do. But this could also mean new opportunities for independent artists and smaller labels – and greater opportunities for everyone making music.

We’ll be looking more at the Android platform in 2009, and other trends in mobile. Now I just need to get myself a G1.

What happens when people targeted by record industry legal intimidation fight back? What if they not only defend themselves, but go on the offensive, counterclaiming the industry is abusing the law and legal process? What if courts decide the industry really can’t hijack an unrelated PC belonging to someone’s Mom and Dad? That’s what’s at stake in a case in Rhode Island.

Now, the exciting conclusion to the face-off between record industry lawyers and a class full of Harvard Law students and their professor. Well – sort of. This is legal drama we’re talking, so it may be neither exciting nor conclusive.

Our Story So Far

The case was this: as part of ongoing threats of litigation, Rhode Island residents Arthur and Judie Tenenbaum faced legal pressure from the US record industry group, the RIAA, on behalf of their son, Joel, a grad student at Boston University. Joel is accused of sharing music files online. 7 songs allegedly shared translates to $1 million in damages, according to the industry’s arithmetic, but it may not be the damages that are really what’s in question.

Here’s where things get a little weird. The hearing yesterday in Rhode Island federal court addressed a motion by the record industry to force Joel’s parents to produce their home computer, so that the computer could be inspected for evidence of illegal file sharing.  That would have made no sense, given that Joel is off at grad school, Arthur and Judie didn’t own the computer when Joel lived with them, and even the RIAA isn’t alleging that piracy took place on the computer. (You could place his uncle under house arrest and seize his parakeet as a witness, too, if you’re going to get that tangential to the case at hand.)

The hearing yesterday was rescheduled to January 6, however, because the Tenenbaum’s lead counsel – Professor Charles Nesson from Harvard Law School – was not admitted to argue in a Rhode Island court. (There’s a legal question there; I don’t think it’s just that they hate the Red Sox.)

The industry responded with a motion to prohibit any use of the parents’ computer until January 6. (Yes, Merry Christmas to you, too, RIAA.) I’m not sure what that would have accomplished, but the judge denied their request.

So, bottom line: the Tenenbaums get to hang onto their computer until January 6, and we find out what happens later.

You can expect a good fight, however. The Harvard team aren’t just defending Joel: they have a counterclaim. The basic argument: the RIAA isn’t really recovering compensation. The goal, says the countersuit, is simply to make young people, parents, and schools afraid of computer use. They are looking for damages from the RIAA, claiming that, as a criminal statute, the “Digital Theft Deterrence Act of 1999” the RIAA is using as its weapon deserves a trial by jury – and in the meantime, the RIAA has abused the law and the civil process of the courts.

Coverage

Some reading on the story from elsewhere:

Legal Jujitsu in a File-Sharing Copyright Case [NY Times]

Billion Dollar Charlie vs. the RIAA [Boston Globe]

RIAA Vs. Web 2.0? Social Media and Litigation [Slashdot, on the use of social media to combat the RIAA]

Boston Illegal: Will the RIAA finally get what it deserves? [Robert Cringley editorial for InfoWorld]

Judge postpones hearing in key RIAA lawsuit [CNET News]

And for an extra oddity:

RIAA May Be Violating a Court Order In California [Slashdot]

What This is About

Before we get another heated discussion going, let’s consider what this case is really about. Forget for a second the record industry’s business, the real issues around piracy and the value of music online. Ultimately, this is simply the case of an industry group that has been allowed to run wild, using legal intimidation and excessive, heavy-headed techniques. Going after Mom and Dad’s unrelated PC is clearly an unnecessary invasion of privacy.

The problem is, the strategy only works until someone protests. The assumption is that applying ample legal pressure gets more would-be defendants to settle out of court, saving a real legal test and helping the RIAA demonstrate that it’s doing something. Critics have said just that for years, but this could be a high-profile repudiation of these techniques if the Harvard team can move forward.

And as for the larger issues about the industry and its business, well, what about that? The RIAA’s response to criticism, even from members and music content owners, has been that the ends justify the means. But what, exactly, is the group accomplishing on behalf of their member businesses? Is their case really so weak that they have to resort to intimidation?

Many musicians are indeed opposed to piracy – and also believe the value of music, and the relationship listeners can have with artists and labels, can protect music as a business. Music creators are aware how much income comes from relationships – from freelance work, from t-shirt sales, from teaching, from live shows, and the many ways artists and creators support themselves. The single-minded, obsessive focus on piracy that would drive the RIAA to these tactics in the exclusion of all else seems to come from some alternate dimension.

Of course, this kind of nonsense only short-circuits those discussions. And from a legal perspective, the central question remains: is what the industry doing even appropriate to the law and legal process. We’ll follow this one as it develops.