Since the dawn of computing, developers have been free to create whatever software they can imagine for computers. Windows, Mac, UNIX, Linux, Atari, Amiga, Apple II, Commodore 64 – it doesn’t matter. Come up with an idea, and short of doing something destructive on the system, you can make it work on a computer. It’s this freedom that has made the computer age possible. Game consoles have been different, a relic of the days when cartridges were physical objects you put in the machine. But mobile devices have generally acted more or less like computer platforms – look at Windows Mobile, Symbian, Linux, Android, Palm OS, Palm’s Web OS, and so on. It wouldn’t be odd to expect the same of the iPhone or iPod touch, which is essentially a Mac running on a low-power platform with a mobile-optimized set of libraries. The iPod doesn’t even connect to a wireless phone network; it uses WiFi just like your computer.

As musicians and artists, this sort of freedom has given us the freedom to make expressive music and art using powerful tools. That same freedom hasn’t applied to comparatively restrictive game platforms, which is why music apps for platforms like PSP and Nintendo DS require hacking hardware and software.

But then there’s the iPhone / iPod touch. Apple claims that they create a superior user experience by controlling quality, and they use that control to pick and choose which applications they think are appropriate for their phone. Never mind that a whole lot of what’s available on the iTunes store is simply worthless crap. And, frankly, that’s okay – users pick and choose the good stuff, and a lot of it’s really great.

But far from simply protecting mobile carriers like AT&T from abusive apps, it’s clear from developer experiences that Apple has extended that supposedly superior judgment to second-guessing developers on design and application purpose.

The latest victim: a fully free wireless multitouch server that would empower iPod touch and iPhone users to control live art and perform, created by one of the world’s leading interactive artists, Memo Akten. It seems Apple’s powers that be rejected the app because they simply don’t understand what the heck it is.

The story so far:

I received the following response from Apple: “Thank you for submitting your application “MSA Remote”. We need clarification in regards to the functionality of the application as we do not have access to the interactive installations that the application controls. If possible, please provide login information for a server application we can use to review your application.”

So I sent them 3 desktop apps: a standard TUIO client, a MSATouch client (multiple devices can control a single client without interference), and an OSC Dumper so they could see all the messages being sent in detail.

Even after receiving that documentation, Apple decided that they knew better than their users and developers. Result: no app.

Apple’s response to this app is “We’ve reviewed your application, MSA Remote, and we have determined that this application contains minimal user functionality and will not be appropriate for the App Store.”

I find it hard to believe that a FREE TUIO SERVER for iPhone and iPod touch is not suitable for the App Store!! Please leave comments below if you think it is suitable and I will get back to them to try and sort it out.

MSA Remote for iPhone

TUIO, for the record, is the open multitouch platform employed in the powerful, expressive reacTable tangible interface that has been used by the likes of (Mac user) Bjork.

Let’s be clear. The point here is not just to rant. Memo is looking for comments from users. I’m hopeful that an upswell of support could show Apple the error of their ways and get them to correct course on this one, and I’ll applaud them if they do that.

But let’s also be clear: restrictive platforms are bad for artists. Apple is setting a dangerous precedent, and I’m frankly tired of the conventional assumption that they’re always right. I think the restrictiveness of the platform – well beyond what is “safe” for users or what might endanger Apple’s relationship with carriers like AT&T – is simply wrong-headed. The reason we love platforms like the Mac is that they have empowered us to express ourselves freely. And having seen the power of the Mac as a platform over the years, I’d be disingenuous not to point out that the iPhone has lost a big part of that soul.

The good news is, complaining and whining and griping can be productive. Tweetie, a powerful Twitter app that was censored because it might expose users to profanity on the open Web service, did make its way to the store after massive public outcry.

So, as I say, I don’t rant just because I like the sound of my own typing. I hope that the rest of you will join in, and it’ll make a difference.

Apple’s iPhone should be a herald of a new age in interface design. But now, with speculation that Apple and Palm could get into a patent battle, and murky concerns about patents in multi-touch interface design in general, it’s unclear how much intellectual property legal wrangling will have to happen first.

I’m going to resist turning this into a long rant – partly because I think the jury is out on so many issues. It’s never been entirely clear what Apple continues sacred in its intellectual property on the iPhone. It’s even less clear – with similar multi-touch designs spreading back decades and murky law around gestures in general – what their legal standing is. No one knows at this point whether there will actually be a lawsuit between Palm and Apple (or which direction). But one thing I can say with confidence: we need alternatives to Apple. Even if you love your iPhone, I think you’ll agree it’d be tragic if other vendors didn’t push the technology forward. And we need alternatives like Google Android that support real open development, release free and open source code, and provide an option to Apple’s deeply proprietary, restrictive development platform. Innovative music software in particular won’t be able to thrive if alternatives are closed or nonexistent.

Here’s a quick look at where we’ve been, and where things are:

This has been a storm cloud since the beginning. Me, in January 2007, immediately following the keynote: Macworld: Will Apple Keep its iPhone Closed? Multi-Touch Patents? (I wish I had been wrong. No one believed me at the time that these two areas would be big issues.)

The original tech predates the iPhone. Engadget in 2007 on Apple’s multi-touch roots – FingerWorks gave them a patent portfolio and some key technology.

Google may have dropped out of the race. VentureBeat has a source that claims Google voluntarily dropped multi-touch to keep Apple happy. Even if that’s not true, I think potential legal battles with Apple – and the incorrect notion among consumers that this is Apple’s invention – could have a chilling effect. Update: There may indeed be some chilliness in the air, but there’s strong evidence that Google didn’t “cave” to Apple somehow — they just didn’t get around to it. And a multi-touch G1 may not be far off. Just asked the guy who’s already hacked the G1.

Both Apple and Palm are loaded up with patents – and no one knows what will happen. Engadget analyzes the potential for a Palm/Apple legal standoff – but there are two major issues here. One, Palm has a healthy patent portfolio of their own, meaning they could counter-sue. Two, no one knows if anything will come of this – aside from some saber rattling, we’re not even sure there will be a suit.

Just to keep things in perspective, though: I think multi-touch in general is safe. It’s a technology coming to phones, mobile devices, computers, Windows 7, Synaptic trackpads, Linux … the list goes on. To me, the question is whether developers will be free to try ideas without lawyers breathing down their necks, and that’s very much an open question.

And I think the deeper questions about whether open development, as on Android, can be competitive, may prove to be more important in the long run. Apple aside, we need more common-sense, modernized patent law – even if the Android in this case voluntarily dropped a feature, you can see that the issues are linked. And we need to have open development if people are to have freedom to experiment with design. This is about more than Palm and Apple; it’s about how we interact with our tech.

SoundCloud, the music and sound sharing service we saw launch this month has added a very important feature: support for different licenses. When you upload tracks, you can elect to protect your work with a conventional copyright or opt instead for a Creative Commons license. That’s an important feature I’d like to see all these services support. The one thing Creative Commons and conventional copyright advocates agree on is that being explicit about what rights you want to your work is essential.

Naturally, this means not only that you can upload works, but that SoundCloud could soon become a rich repository for CC-licensed work to use as video soundtracks or sample, in the way that Flickr’s CC search has fired up lots of (legal) image use. We have heard some dissatisfaction from readers about SoundCloud’s pricing scheme, but this announcement means SoundCloud remains one to watch — even if you’re not personally uploading to it.

SoundCloud also came up with a unique idea: they created a drop box for CC-licensed works which they played at a party.

You can read about the new licenses and other news tidbits on the SoundCloud blog:
Introducing SoundCloud Creative Commons Support

…the NDA has created too much of a burden on developers, authors and others interested in helping further the iPhone’s success, so we are dropping it for released software. Developers will receive a new agreement without an NDA covering released software within a week or so. Please note that unreleased software and features will remain under NDA until they are released.

To Our Developers

I would be remiss if I didn’t give Apple some credit for making this move. This is what really matters: being responsive to criticism. We’re seeing some tremendous innovation in development for the iPhone and iPod touch, and in the mobile arena in general, from new kinds of synths and music making applications to Star Trek-like controllers. It’ll make a big difference to those developers to be able to talk.

And, speaking of which, this now means we can have all of those developer discussions that were crippled by the NDA. So, developers, we’d love to hear from you.

As music listening takes new forms, that builds new business models. But who calls the shots? Who gets to play, and who reaps the benefits? One immediate danger is that major label deals will dominate as outlets vie for position. Online outlets like MySpace have started to look a bit like the same-old, same-old world of major labels and big deals. “Indie” music sometimes makes an appearance, but nearly always in the form of signed artists and often in the shadow of the majors. Unsigned artists can get onboard, but the playing field often isn’t level – and while majors negotiate lucrative deals for their music, unsigned artists and indies have to give theirs away for free. At the other end of the spectrum, unsigned artists often don’t get paid by services that benefit from their work (like MySpace).

That’s why Last.fm’s announcement yesterday was a potential bombshell. Now fully available after months of development, the Artist Royalty Program will pay artists royalties on plays directly – no label required. Unsigned and independent artists can sign up to earn royalties from on-demand plays and Last.fm’s streaming radio.

Last.fm Artist Royalty Program (last.fm/uploadmusic)

Royalties 101

To fully understand what that means, let’s back up and talk about where royalties come from in on-demand online music. This is entirely separate from downloadable music – that’s pretty straightforward. If you, for instance, sell a track on your band’s website for 50 cents, people pay 50 cents, own the track, and you get 50 cents. If you sell it through another vendor, then you get a slice of the sales pie.

But on-demand, streaming music, via radio stations or elsewhere, works differently. Since the days of radio, broadcasters have wanted broader access to music. Obviously, if they had to negotiate rights individually for each track, they couldn’t exist. So the solution has always been a system of blanket royalties. In the online space, there are two kinds of royalties, coming from two different licenses. Here’s the simplified version (lawyers, feel free to clarify):

1. A license for the recording – the “statutory license.” These fees are set by the Copyright Royalty Board and collected by SoundExchange. It’s called “statutory” because webcasters don’t need your explicit permission to broadcast music. They’re paid to the owner of the recording. If you’re a signed artist, that’s your label.

2. A license for the “performance rights” of the copyrighted work itself. These fees are negotiated with performing rights organizations like ASCAP, BMI, and SESAC.

That sounds odd (Last.fm isn’t “performing”), but it makes more sense if you think about the actual music. There’s the recording of the music, and the “work” itself. So, for instance, you might record a cover of a song. There’s the songwriter, and the artist recording the work; they may not be the same person.

If you’ve written and recorded your own song, you own both of these rights. You might sign with a label and give them the recording rights, but either way, the basis remains the ownership of the recording and the musical work.

So where does ARP fit in?

First, regardless of whether you’re part of ARP or not, you’ll always receive the performing rights if you’re the writer of your musical material. That’s why it makes sense to join an organization like ASCAP if you’ve ever produced anything; unless you do nothing but cover other people’s music, they’re there for you. They’re not the RIAA – they represent writers and publishers. In fact, even if you release your music under a Creative Commons non-commercial license, you are eligible to receive royalty payments collected by these bodies. (That’s the topic of an upcoming article.) If you join ARP, you’ll continue to receive income for this music.

What ARP does is to provide additional income for unsigned artists. A spokesperson for CBS Interactive (parent of Last.fm) tells CDM:

If you participate in the ARP, you should not be signed up with a recording rights society. In effect, Last.fm is cutting out the middle man here by paying the artist directly without going via the collection society. Writers benefit from the publishing rights royalties that Last.fm pays to the publishing rights societies. ARP is for recording rights only.

Who Benefits from ARP?

Here’s where ARP makes a difference. Previously, the system for the artist was to go get a label, and then get that label to collect royalties on the recording. The label, in turn, had to go to SoundExchange, formerly part of the RIAA but now an independent organization, to get the money. Result: fees get set by a board of judges chosen by the Copyright Office (the Copyright Royalty Board), and you’ve got multiple middle … men, actually.

Under the ARP, you go to Last.fm, and Last.fm pays you. You upload the music where you want it to go. And, via Last.fm’s community pages, you actually have some tools for your music:

Last.fm for labels and artists

In addition to royalties, that includes stats, event management, and the ability to connect with fans. And the other thing that’s interesting about this whole system is that both parties essentially have to be happy. Artists have to be getting value from Last.fm’s service, and royalties that make sense for them. Last.fm can then, in turn, build an ad-based revenue model that works for them as a business. That’s a far cry from a giant battle between the recording industry and large performers’ organizations in front of a group of judges. It’s new, so we’ll have to see how it works, but it’s nothing if not appealing.

(See also a similar announcement from imeem, though that one required working through SNOCAP for distribution, and comes from, arguably, a less popular service. I also think some of Last.fm’s unique tools for data collection and fan management make it more interesting than imeem. But this is all the more significant if other sites do the same thing in the future.)

ARP for Labels, Getting Paid

The ARP system isn’t limited to artists, either. New labels could embrace the system. Again, a Last.fm spokesperson clarified for CDM:

A label can participate in the ARP Program IF they own the WORLDWIDE rights to the content and have NOT signed up with any collection societies.  (Basically only startup labels that aren’t collecting any royalties would be interested in participating in the program since they’d only receive revenue from Last.fm in that case)

One other simple upshot of all of this is that people actually get paid. That’s not the case with MySpace. As Eliot Van Buskirk writes for Wired’s Listening Post:

We’ve had a bone to pick with MySpace about this for a while, because it plans to compensate major labels with a share of ad revenue without similarly compensating indie labels, unsigned artists, or possibly even the artists signed to them.

The headline says it all:

Last.fm Compensates Artists, Unlike Some People We Know [Wired.com Listening Post]

It’s well worth the full read. Eliot notes that even Last.fm doesn’t maintain the amount of money will be huge, partly because online streaming is still growing gradually (though I think listening habits will continue to grow). The money is coming from ads that appear with the streams. But Wired notes over 450,000 tracks are available on Last.fm as part of the Artist Royalty Program. And they also observe that, unlike MySpace, indie artists aren’t left in the dark, and unlike almost everyone, payouts are transparent – you can actually monitor what you’re earning.

Ultimately, I think that’s the bottom line: Last.fm is actually paying people. And I don’t mean to make an argument against labels. On the contrary, ARP is a tool many artists will likely use while looking for a label – alongside other useful tools (some arguably more valuable than direct revenue) provided by the service. The one question I do have, though, is whether new upstart labels might forgo the complex recording collection process entirely and start to use services like this directly. That would allow them to continue to fill the business and promotion roles labels have always provided, which artists and writers often can’t handle on their own. But it could be the first glimpse of a new set of models in which music creators, publishers, and labels deal with online business directly, rather than dealing with a middle man.

Update: Labels not so happy

I missed this: Merlin, one of the aforementioned rights bodies representing the labels (12,000 independent labels total, controlling more music than EMI) has protested the ARP license:

Merlin Opposes Last.fm’s Artist Royalty Program [Wired.com Listening Post]

The grounds: no retroactive license fees, a breakdown in negotiations with Merlin, and vague licensing terms. Now, I’m not sure on any of those points – in particular, Merlin’s negotiations should theoretically be independent of ARP to begin with; it explicitly excluded people who have signed with labels who are part of separate negotiations. If you’re an independent artist, it doesn’t really matter what Merlin thinks or even what they deem “illegal” – particularly if you’re uploading and licensing your own music, which is presumed by the ARP deal.

But the main thrust of this argument is that past Last.fm plays were illegal and unlicensed.

Last.fm’s response is, basically, ARP is about indie artists, not Merlin. Merlin’s banner says “representing the rights of independent record labels worldwide,” by which they mean, of course, their members, not necessarily anyone else.

But Does it Add Up to Anything?

The big problem is, streaming rates in general are a tiny fraction of a cent per play. If Last.fm achieves greater volume, that could be good news for artists. Until, then, though, this is largely symbolic. Further discussion:

Fine Print: What Do Royalty Rates Actually Pay?