Well, that happened. It’s a surreal episode that seems not to have any clear winners, as the US government on one side and hackers on the other face off over what is and isn’t freedom online. The mystery is, what will be the long-term outcome for people making content – or, for that matter, do these kinds of dramatics even really have any logic in your work at all?

While the music tech industry was holed away in the palm tree-lined walls of the Anaheim Convention Center, it seems full-blown war broke out over content on the Internet, in a surreal collision of players. Remember that bleak future painted by opponents of new US anti-piracy legislation, one in which your ability to upload your own content might get caught in the crossfire? It turns out it doesn’t necessarily require new laws, and it could look something like this:

MegaUpload file sharing site shut down for piracy by Feds [LA Times]

And then, in spectacular fashion, the hackers strike back…
Anonymous downs government, music industry sites in largest attack ever [RT]

Updated: The raid successfully stopped MegaUpload from operating … erm, except that it’s now right here, via a direct IP address and other sites appear to be phishing scams, so stay away.

It’s hard to imagine a more heated showdown. The US Department of Justice is behind the raid on MegaUpload, and just happened to time their crackdown the day after sites like Wikipedia blocked out content in protest of more restrictive rules in Congressional legislation, rules that claim to target just this kind of site. (MegaUpload was often named specifically, and – in fairness – had run rampant with pirated files. The authorities may have chosen the date as the founder’s birthday party, unrelated to yesterday’s blackout.) But that’s almost not the oddest thing about this story: it places a site endorsed by a number of high-profile musicians opposite labels like Universal Music Group. And don’t forget reports that the CEO is using an alias and is married to Alicia Keys, for added potential drama.

Now, clearly, MegaUpload was a venue for a significant amount of copyright infringement, and it’s inarguable that its owners benefited from that infringement. But artists themselves are already crying foul, partly because a service they used is unavailable. For instance, online radio station SOMA FM protests via Twitter:
“FBI shuts down megaupload .com, claiming no legit users. However lots of indie artists used it to send us (SomaFM) their new music.”

Show of hands. Are you now thinking:
1. I’m relieved! Now that the Federal government is cracking down on these sites, I can at last have the financial security as a musician of which I’ve always dreamed! Clearly, this will help drive more money into sales of music and other creative content, and we’ll all benefit!

2. Great. This will really mean is the next time I try to upload something, there will be all kind of annoying restrictions imposed voluntarily by services to avoid getting shuttered, all because people had to upload Adele albums. I’m just trying to send a darned demo.

3. Who was using MegaUpload, anyway?

Tally to follow.

In the meantime, these fireworks with Anonymous are sure entertaining to watch.

One alternative possibility occurs to me. Because it’s clearly possible to shut down MegaUpload without the benefit of damaging legislation, the MegaUpload closure actually makes an excellent case against the need for restrictive new laws. In other words, you can shut down an obvious infringer like MegaUpload, while leaving loads of other sites that support user content, and you didn’t have to change US law. So, even though Anonymous scored a dramatic protest, the raid itself might actually make a good case against new, tougher laws.

Downpressor, via Twitter, remarks “I’m not sorry to see sites like that go down.” And that’s the crux of this – a large number of parties actually do agree that some sites ought to go away through some sort of enforcement action. After the explosive saga here settles down, the upshot may be that this is left to enforcement mechanisms within the bounds of existing law, and not the kind of radical new laws recently proposed.

MegaUpload itself, though, may prove to be a bit divisive, because it will be seen through the eyes of some users who used it legitimately, even if those activities were a minority.

It’s been called, bluntly, “Internet censorship” by opponents. And now, US legislation that claims to curb piracy faces mounting challenges as that opposition grows, particularly as the White House warns it will block the bills.

Today, even as a flood of delightful new music toys become available, it’s worth pausing to consider why this matters – and, if you vote in the United States, to call your Senators and Representatives (again, if needed).

Many of us who create music believe the dynamic, user-driven nature of the Web is our best chance at a bright future. Free and open Internet communication is part of the fabric of societies around the world, and for music, offers a chance to share what we do, to discover new work, and to build our musical lives. They can be the basis of some of the most vibrant businesses that support musical practice, as well as contributing intangible but invaluable creative, technical, and spiritual input into what we make.

I wanted to collect today some of the best writing on the topic, from people who know this issue far more intimately than I do. Thanks to readers for their tips on this, as well.

Essential Reading

Ars Technica has some extraordinary coverage today. In particular, see:
Even without DNS provisions, SOPA and PIPA remain fatally flawed [Ars Technica] (goes into very detailed specifics of the legal issues)

What does SOPA mean for us foreigners? [Ars Technica] (The answer might surprise you: one of the flaws with SOPA is that the definition of “foreign” doesn’t even make sense. But in short, you don’t have to be in the US to be impacted by this legislation; foreign sites are specifically singled out for action. Do read the whole article; another huge, detailed report.)

How PIPA and SOPA Violate White House Principles Supporting Free Speech and Innovation [Electronic Frontier Foundation]

Google and Facebook and the like have come under attack as big corporations that benefit from Internet use and, some critics argue, from piracy. Why should they be using their deep pockets to talk about this issue? Google’s take today I think responds to that neatly. They have a beautiful infographic of a megaphone that counts all the critics – including law and Constitutional experts and human rights and pro-democracy groups – opposed to this legislation. And while I don’t know that Google always lives up to the “don’t be evil” mantra, I think digging into your deep pockets in this case is perfectly appropriate and defensible.
https://www.google.com/landing/takeaction/

The best report-in-a-nutshell comes from The Verge, and lawyer-journalist Nilay Patel:
Why The Verge and Vox Media are opposed to SOPA

In brief:

• Sites that host user-contributed content are threatened by weaker safe harbor rules and high compliance costs.
• Overzealous compliance by search and payment providers could make life miserable for the rest of us.
• Significant flaws in due process and seizure.

Those kinds of problems threaten the whole Internet ecosystem of user-contributed work and threaten democracy and the course of law. (Uh, other than that, no problem here.)

Musicians Take a Stand

The evidence at hand makes it all the more disturbing to see groups of labels, content companies, and so-called artist advocacy groups using our name – the musical community – to claim this legislation is somehow good for us. Unfortunately, the analysis of people working in law and policy outside the content industry tell us otherwise.

At least one artist and regular CDM reader and friend, TRICIL, is blacking out his own artist site. Here’s what he had to say:

You may have heard of America’s ludicrous Stop Online Piracy Act bill that’s being brought forth for legislation.

In concert with Wikipedia, Boing Boing, and a host of other sites, I’ve “blacked out” tricil.net in protest for the next 24 hours.

For my fellow Americans, you can take action by visiting http://tricil.net and clicking the “CENSORED” bar on the top right to email your local congressman and spread the word. This will also “uncensor” my site, but you can put the bars back and take a screenshot if you’d like.

If the bill passes, sites like Vimeo, YouTube, SoundCloud, and my own are all at risk. I’ve taken my material off of those sites for the next 24 hours to show what effect this legislation could have on independent artists.

Read more at americancensorship.org

Thank you for taking a stand with me,

TRICIL

Watch the Reasons Why It’s Bad

Clay Shirky has a great video out for TED:

CDM Under These Rules

I won’t be blocking out CDM today, as instead, I’d like to continue the conversation. But what could happen to a site like this one?

• We could be targeted by a unfair compliance issue because of a complaint about content on this site – without fair protections and due process to allow us to respond.
• We could see sites we rely on – from SoundCloud to Vimeo to YouTube – face restrictive rules and compliance that would threaten their livelihood, and strangle channels through which musicians and artists make their work known.
• In a severe case, a compliance issue could literally shut down the site forever, especially given our limited resources.

But that said, I’m less concerned about a threat to CDM as the rest of the Internet on which we rely, the dynamism that made this site worth producing in the first place. And as a citizen of the United States and a citizen of the Internet, I’m morally and ethically concerned about laws that deviate from Constitutional rule of law and common sense.

If you’ve found other reading on this issue or other ways to take action, I’d love to hear them.

Previously:
Opinion: US Internet Censorship Could Cripple Online Music Web; Where to Find Out More, Where to Act

And yes, you acted – and your action made a difference, as the opposition grows in strength and the legislation withers. Winning battles can sometimes be a good thing.

Sure, many issues around intellectual property are gray. But contributor Jo Ardalan has a disturbing story: what happens when a fundraising album gets pirated? Did illegal file sharing users know what they were doing — is there a need for a donation mechanism for these services — or is it really this bad? Apologies if this is old news – catching up during travel – but a question well worth considering. -Ed.

We all know piracy forces labels, artists and developers to incur a huge cost. Recently, however, illegal file-sharing cost a bundle for the fundraising efforts aimed to raise money for reconstructing parts of Italy after a recent and devastating April quake. Universal Music and Italian pop artists collaborated on a track entitled “Domani 21/4/09″ that sells digitally for 2 Euros and will later be sold in stores for 5 Euros. According to Variety, the track has been downloaded illegally 2 million times.

Caterina Caselli, who produced the track for free says that this project is (translated from Italian) “sort of ‘mission impossible’: in one project between eighty artists and musicians doing almost everything in one day. All have dealt with air travel at their own expense, technicians and porters have worked for free, as do the catering…Universal does not gain anything.”

Artists inovled are Jovanotti, Ligabue, Zucchero and Elisa and many others.

http://www.variety.com/article/VR1118003748.html?categoryid=19&cs=1
http://discomania2.myblog.it/archive/2009/05/09/domani-21-4-09-con-jovanotti-e-altri-60-artisti-serve-a-racc.html [Italian]

At the risk of causing a flame war, let’s at least look at exactly how the authorization works. Authorization is, of course, always annoying to paid users on some level, and I expect some of you will still be unhappy with the USB key approach. Looking at it on balance, there are some advantages in certain situations, when compared to software-only authorization, and disadvantages in others.

This is a preview only of a non-shipping product, based on information Propellerhead has shared and my own experience. It’s also not intended to be an opinion piece; I just want to look at the big picture in the hopes that the online discussions can be better-informed.

First, to clear up a misconception: the authorization does not slow down boot time. In fact, Record is one of the fastest-booting audio apps I’ve seen. (Note: any comment about performance is just speculative, as we don’t have a final build yet. But this is partly objective; remember, by not supporting plug-ins, Record doesn’t have to slog through your plug-in folder, something you can leave to other tools.)

The first time you load Record, you’ll see something like this if your USB key isn’t plugged in:

With the USB key, you won’t actually see that dialog again. In fact, if Record doesn’t see the key, it will give you an opportunity to insert it:

What’s demo mode? If you can’t authorize Record, it will switch to “demo” mode. (One thing it won’t do is arbitrarily quit or something stupid like that, which I have seen some hardware-based systems do.) In demo mode, you can do everything except open files. This also means the demo you’ll try at dealers or on your own machine will be more fully-featured.

What if something happens to your key during a set? If you’re onstage and someone breaks your key, for instance, you can continue to use Record you can’t just open any new files.

What if you don’t have your key? The backup method is Internet authorization. An Internet authorization is just as full-featured as using the USB key. So, for instance, if you’re at home or in a studio and don’t want to fill up a USB port with the key, you can simply use Internet authorization.

I asked Propellerhead when the Internet connection has to be active, and they reported that there are two times:

1. When you startup the software

2. Each time you open a file

This is just based on my own tests and conversations; see the full discussion at the Props site:

Propellerhead Ignition Key

So, for those of you keeping score at home, here’s what I currently understand as the tradeoffs of this approach?

Why It’s Good News

Before you start ranting in comments, some readers have already noted an advantage of this system: it makes it very possible to use Record on lots of computers. Got a couple of desktop machines, a computer at the studio, a netbook, your significant other’s machine, a laptop, and then the computer at your band-mate’s house? With most software authorization schemes – challenge and response and so on – you’re out of luck, because you have two or three authorizations to play with. This also means if a drive fails or a software authorization is lost, you have to use a (limited) supply of existing authorizations or find a serial number. With the key, you can move between all those locations, then get to someone who has a new machine and download the file there, plug in, and go. (Yes, I know, this is also possible with open source / free software, which is an excellent argument for having some sort of free host as your common denominator, but it’s still an advantage for Record.)

Why It Beats Other USB Keys

Many music software developers, of course, use USB keys, and each have their own implementations. But Propellerhead have themselves noted some of the complaints:

• Software that immediately stops working if a key is disconnected or breaks, or that immediately loses the ability to save
• Companies that charge extra for the dongle
• Companies that charge you a significant portion or the full cost of a product if you break or lose your key. (Oh, by the way, if you’re out there and that’s your policy, I have some really, really special words for you.)
• Some software requires both a USB key and challenge/response authorization of each individual machine … yeah, again, special words, not family-friendly.

Propellerhead have addressed all of these issues. Most importantly, the replacement policy: you’ll only need to pay a nominal fee to get a replacement. That doesn’t make this a perfect solution (see below), but it does beat a lot of the schemes used by other developers with hardware keys.

The basic idea of a USB key is to work like a car key, to make ownership physical and fairly straightforward. Propellerhead have said that they just didn’t like other implementations out there.

So, yes, that’s the good news. But that still leaves some complains.

Why It’s Also Bad News

So, Record beats a lot of other software that uses USB keys. That still leaves some problems. For one, if your host (Pro Tools, Cubase) uses a USB key, you’ll need another one plugged in at the same time to use Record at the same time, unless you have an Internet connection. Also, while the eight-computer setup above makes the key an advantage, if you just have a laptop and desktop, it’s probably easier in most cases just to do the software-only authorization (as in Ableton Live, for instance), and stay authorized. Then, when you’re out on the bus or train or hotel room, you don’t have to dig around for your key, and there’s nothing to lose.

In short, you’ll probably like it better than those software schemes if you move a lot between machines. If you have one laptop you carry everywhere, you may like it less.

I think the other factor in the growing dissent is a trend away from these kinds of anti-piracy schemes in general. Music DRM is dead. Computer games, though still widely pirated, have gone to less restrictions after users rebelled and piracy remained unabated. It’s even true in pro media software. Apple’s Logic and Final Cut have loosened their authorization schemes; Logic even lost its dongle. Sure, some will argue that’s to help Apple sell more computers, except having talked to their software teams, I’m fairly sure they like to sell software. Cakewalk has serial-only authorization on their products; do it once, and forget about it. Software like energyXT, once authorized, will run anywhere on a USB key. And Reaper doesn’t even require authorization at all; it’s honor system-based.

Likewise, I’m a bit disappointed that this is yet another USB key that doesn’t do anything – it seems like it’d be an ideal way to tote around presets, though admittedly, that might mean you have to buy it. I’m sure the iLok people could point out that, unlike their key, this can only authorize Record and not other software, though that’s less of an issue with an app that (for better or for worse) doesn’t support plug-ins.

It’s just not a black and white issue, as developers remain nervous about piracy and keeping their businesses open. But if developers want to understand why users are resistant, I think the evidence is there.

My sense is that this won’t be a deal-breaker for everyone, and a lot of people are enthusiastic enough about Record that they’ll live with the key, just as people live with, say, the online authorization in a tool like Ableton Live.

I do think we need more reasoned discussion of these issues, though, instead of defensive developers and frustrated users just venting. It’d also be great to see some solid metrics on how these approaches work.

Okay. I’m publishing this. If you need to vent in comments, fine; I’m staying out of it.

Much of the debate online about the record industry has devolved – with quite a lot of help from the misguided message of the US trade group, the RIAA – into a debate about piracy. It winds up being something dumb, like, “Piracy is evil!” “No, piracy is great!” Wow, this should be a really insightful discussion – I can’t wait!

Piracy is, pure and simple, “loss prevention.” People often laugh off the comparison between piracy and things like shoplifting. But I think that comparison isn’t made enough – because if it were made, and made fairly, the record industry might remember what it’s business actually is. It’s business is selling something. If that becomes secondary to preventing theft, they cease to be a real business. Whether you’re scared of piracy or think it’s harmless, you ought to be able to agree. This ignorance is a disease that has threatened at times to infect music software creators, too – and I think the same issues apply.

The counter-argument even from some RIAA critics is that record sales don’t matter to musicians, or that sales of recordings is doomed. Those are interesting arguments. They just don’t have actual facts to back them up. With musicians selling music direct and working out new means of distribution with labels, the former is silly. Sure, not all musicians rely on music sales – some of us rely on things like teaching guitar lessons or (ahem) writing about music technology. But many other artists do think about selling music. Digital tech means that for bands like Sound Tribe Sector 9, they can even tie this to lucrative live performance. (STS9 now earns lots of revenue by selling downloads of live performances to concertgoers. I’m sure others could follow; I just happen to talk to the STS9 guys and know this.)  And most importantly, with explosive growth in mobile music, online music downloads, streaming music, Internet radio, terrestrial digital radio, music communities, the recording as a business is here to stay, whether you like it or not.

Not that you’d know any of this listening to the RIAA, because the only issue they want to talk about is piracy – not the actual sales one would associate with an “industry.” So why is no one calling foul – not only because the RIAA pursues abusive legal intimidation, but because they seem unable to act in their own self interest as an industry? Isn’t that a little … odd?

The problem is, music recording is often treated differently from other businesses; we view it in a vacuum, without precedent or comparison.

Have a quick look at the RIAA’s website:

http://riaa.org/

Today, on December 16, 2008, the top headline is about an anti-piracy bill. The top blurb is about parents and teachers on digital downloading. Then we have some sales statistics, news on anti-piracy items, a whole section on piracy identification, piracy and parents, some links in the nav bar on piracy … you get the message. In fact, the only thing that would tell you that this is the Recording Industry Association of America and not the Association of Intellectual Property Lobbyists and Lawyers is some proud stats on “gold and platinum records.”

So, the only thing that would make me want to go into the record business is info on their top-selling records. Except, of course, that’s equally ironic and backwards-looking. We know that generally the new world market for music is less interested in explosive singles – there’s more selection, more variety in genres, more different kinds of people listening. The RIAA’s homepage is currently celebrating “50 Years of Gold Records.” That looks back to an era when American music tastes didn’t cross over between white and black artists. Some of those albums were wonderful, but with deep racial divides and uniform tastes, it was hardly a golden age. In 2008, the US has elected an African-American President who listens to music on his iPod. But never mind business growth and business potential: that wouldn’t fit into the RIAA’s victimization of itself. If the RIAA can portray itself as a failing industry, they have extra ammunition in what seems to be their one and only priority: fighting online piracy. If actual sales go down the tubes in the process, so be it. (In fairness, sometimes the RIAA does seem to be seriously deluded in their arbitrary nostalgia. Exhibit A: The CD: A Better Value Than Ever is one of their key statistics papers. Where’s “Online: A Massive New Market”?)

To see just how absurd this is, let’s compare another industry that’s having tough times – the National Retail Federation. They’re certainly in an unenviable place, with consumer confidence in the US at historic lows. And retailers get hit hard by theft – harder, you might argue, than the music industry. If you own a store, you get hit by shoplifting; it’s a fact of life. That’s real, material goods walking out the door, goods the retailer can’t replace, in an industry known for its razor-thin margins. Look at retail theft, and you might be glad to be in the record industry, selling online goods that won’t be irrevocably damaged by digital theft and that can have substantial profit margins and loyal, passionate fans. Oh, by the way: music has been historically more recession-proof than a lot of segments of retail.

If the NRF behaved like the RIAA, we’d see nothing but anti-shoplifting info. We’d see educational flyers warning parents about the dangers of their kids stealing candy bars, extensive statistics on loss, new lobbying for tough, one-strike-you’re-out prison sentences, and so on. Of course, that isn’t the priority of the site. The NRF lobbies, too, but on a range of issues. They cover “loss prevention” – they’d be nuts not to – but among other issues, like merchandising, logistics, finance, information technology, marketing. They have events that work on everything from supply chain to credit. Gee, it’s almost like they’re running a real industry. I’m not saying I agree with the positions of retailers. I’m saying they seem to be acting in their own self-interest, which is something you can usually take for granted with a business.

Focusing entirely on loss prevention is something retailers have sometimes done, with disastrous consequences. Tell your staff to stop shoplifting and forget to tell them to concentrate on helping customers buy stuff, and watch what happens. Lock your merchandise behind glass cases and watch what happens. You’ll wind up with safe merchandise: safe, unsold merchandise. The lessons of digital music and DRM clearly point to the same phenomenon.

You can apply the same communications test to other businesses. The American Wind Energy Association, for instance, talks about what’s great about wind energy. They talk about jobs and societal benefits. They lobby, too, to keep wind a priority. Now, wind energy has nothing to do with music, but that’s precisely the point, too. Why can’t you substitute the word “music” in the above sentences? Regardless of the nature of the business, this is what a business trade group ought to be doing.

In fact, even other music advocacy groups seem to get it when the RIAA doesn’t. Performing rights groups BMI and ASCAP have certainly lobbied against piracy, but it hasn’t stopped them from doing anything else. Check out the ASCAP and BMI websites and you’ll see musicians, seminars on music business, actual music. What a novel concept.

There’s a lot of damage to undo, and it has nothing to do with the debate on piracy. Check out reader comments here, blog entries around the Web, and popular press outlets. The narrative about music: music purchasing is dead. Music online has no value. The music industry is on the verge of collapse.

Guess where these narratives came from? You’ve got it: direct from the RIAA. People passed over the scare tactics the RIAA tried to peddle on piracy, and bought into their scare tactics on the industry as a whole. The RIAA has done massive, long-term damage to the image of music as a business. They’ve devalued the work that we as musicians do. They’ve squandered massive business opportunities online, and made an uphill battle for the people trying to take advantage of those opportunities independently.

I respect people who want culture to be free and shared. Music as a business should never be the only view of music, because it’s a cultural activity, with deep, personal, emotional value that can never be quantified. But for the same reason, I value any discussion that helps protect a business that promotes that cultural activity. We live in a world with grocery bills; in the US, we pay for health insurance. Damaging the business is dangerous to musical activity, period. The RIAA and its members are certainly entitled to have opinions about policy and law as they relate to piracy. But when those groups focus on those issues in the exclusion of all else, they do damage to the industry as a whole – including musicians who have nothing to do with them or their member labels. So it’s time to really start focusing on these other, challenging issues. Each time someone says that business is doomed, even if they’re doing so in the context of being critical of the RIAA, they’re unknowingly let the RIAA set the agenda for discussion. And I think it’s long past time for a more productive agenda.

I look forward to the RIAA’s one valuable commodity: its yearly sales figures. They’ve shown massive growth in downloaded and streamed digital formats that suggest that all of this is simply a transition from one format to another. (Furthering that argument, they even show growth in odd places, like vinyl records last year!) It’s purely a business issue. But it’s about time “industry” and “business” got mentioned together again. Stay tuned.

Discuss. (I’ve said enough.)

Who’s sampling what? When is sampling stealing? Who’s stolen sampled samples, and was the sampling stolen stealing? Is anyone actually playing live? Does anyone know what the law is? Does anyone care?

Yes, it’s been a lively November so far for massive, complicated legal battles, PR battles, who-said-who-sampled-what battles, and general sampling messiness. Here’s a quick round-up for those of you who haven’t been able to keep up (understandably).

And we’re going to play a game. I’m going to start talking, and you can see at what point your head starts to spin and you need to go lie down.

Ready?

Here’s the executive summary:

• Justice steal samples and talk about it, because you can’t recognize them.
• US courts said long ago “nowhere to run, nowhere to hide,” to the dismay of even the RIAA.
• German courts, disagreeing with the US and with other German courts, say it don’t mean a thing if you can’t hum along.
• FL Studio turns “Faxing Berlin” Deadmau5 demo content into “Berlin” mostly-the-same demo content and a bunch of people start screaming obscenities at each other and most of us lose interest.
• Justice can’t keep their USB cables from falling out, may have to pirate samples of themselves.
• The Killers (or MTV, more to the point) plagiarize an entire stage.
• My head hurts already.

1. Justice admits they steal samples. French duo Justice admitted to borrowing the likes of 50 Cent without clearance because “they are such short samples no one can recognize them.” (See Beatportal story.)

Of course, the fact that they’re non-recognizable is kind of defeated if you talk about them. In a sane legal world, a completely unrecognizable sample warped until it might as well have come from a field recording of tree frogs wouldn’t be litigation bait. But this is the United States. As I covered way back in early 2005 for Keyboard Magazine, the standing circuit court decision in the US says all sampling is illegal, whether it’s recognizable or not. The elimination of what lawyers call a de minimis (plain English: common sense minimum) standard actually got the RIAA and the plaintiffs concerned about over-litigation. (Yes, you read that right: the ruling was so stupid, the plaintiffs appealed a case they themselves had just won.)

Don’t like it? Move to Germany. No, really.

2. German court says sampling is fine, unless you can whistle the sample. Kraftwerk suffered a legal defeat that made it (via Associated Press) all the way to the front page of CNN.com. It seems a court in Hamburg said what US courts did – no matter how small, sampling is illegal. The highest civil court in Germany says the opposite, but then goes on to be explicit about what constitutes illegal sampling (if un-cleared):

The civil court ruling, however, forbids sampling of a song melody and insists that the sample must be part of a completely new musical work bearing no resemblance to the original.

What’s interesting about this: the length and nature of the sample of Kraftwerk (two seconds of rhythm from “Metal on Metal,” as used un-cleared by Sabrina Setlur) is the same as the sample in the US civil case (two seconds of Funkadelic’s “Get Off Your Ass and Jam” as used in N.W.A.’s “100 Miles and Runnin.”) That’s neither here nor there, except to say if you sample anything in a recognized track, some court somewhere will probably make your life miserable, especially with no international framework to smooth out the difficulties. (Case in point: the US samples had been cleared by N.W.A. – the movie studio No Limit simply forgot to clear the samples in the song for sync rights when they used it in a film.)

3. FL Studio user uses demo loops, meets irate Deadmau5. Thanks to reader Scott Metzger for tipping us off on this one. FL Studio 8 ships, as do many programs, with included loops. It also comes with demo content. An FL 8 user released a track that uses some of that demo content almost wholesale. Now, some people are defending the FL user, because Image-Line says its loops are released royalty free. (They claim they never said that explicitly about demo content, causing confusion.) Image-Line clearly should have been more explicit about this, or this might not have happened. But royalty-free sampling is one thing – plagiarism is another. The user in this case released a track that basically was Deadmau5’s Faxing Berlin. He even copied the name, calling his track “Berlin.” (Smooth.) It’s almost not different enough to count as a remix. I could make some general criticism, except that he’s already been roundly flamed in especially colorful terms by the FL forum users.

I’m still looking for ways of getting a laugh from fellow nerdsters by sneaking some of the roundly-despised Ableton demo track into a set. But, in case your eyes haven’t already glazed over, here are more of the gruesome details of this story.

FL Studio user faces legal action for using built-in samples [MusicRadar, who have more patience for digging through this story than I do]

Don’t use FL Studio loops! [FutureMusic, inadvertently giving users some good advice]

Lesson: software developers, label your loops. (And in all seriousness, it does sound as though Image-Line has lost some of their credibility on this one.) Users, don’t … do this, okay? Just don’t. We can hear you. We can hear those stupid Garage Band loops, too, for crying out loud. Or, alternative names, how about “IMing Hamburg” or “Skyping Munich” or “Snail Mailing Frankfurt”? Maybe change your name to L1v3M0us3 or Deadr4t. I’ll stop. We’re not even done with this damned round-up yet. There’s more.

4. Justice, the Milli Vanilli of Our Time? In case Justice weren’t in trouble enough already telling MTV they’re sampling illegally, they’ve got MPDgate to contend with. Beatportal showed an image of them grooving away with an MPD24 that was, rather inconveniently unplugged. (Their answer: the cable fell out.) Don’t worry, though, Justice fans — Resident Advisor springs into action with a series of photos that would do Oliver Stone’s JFK proud. (There it is – a loose USB cable on the grassy knoll! The screen gone blank, then on again in the Book Depository! Again! Change the angle!)

I’m inclined to give Justice the benefit of the doubt, especially because I care less about this one gig than I do about this outrageous comment by Beatportal’s Terry Church:

Anyone with a shred of understanding of how the music is made knows that it’s near impossible to play electronic music 100% live, unless you have the talent of somebody like The Bays.

Of course, if it were 100% live, it wouldn’t be electronic music. (You could get really literal and claim that you have to be Bobby McFerrin and not even use instruments.) But taking this as I think Terry meant it, uh, Terry, the entire readership of this site has something they’d like to discuss with you.

He also didn’t say “play electronic music 100% live well,” which means for each time one of us has screwed up catastrophically onstage by getting overcomplicated with live sets, we’ve done our bit to demonstrate that we’re not faking it. Unless the USB jack fell out, in which case, no photos!

But yes, I think we can safely say Justice are performing clips they stole from 50 Cent completely live.

5. Killers Plagiarize / Sample an Entire Stage. Okay, forget about two-second samples or even FL Studio demo songs. How about if you showed up in motorcycle helmets and a giant pyramid that looked exactly like Daft Punk? Erm, not in a tongue-in-cheek, parody sort of way.

Etienne de Crecy did a live stage show in France with giant projections mapped to a big cube, as produced by the talented Exyzt crew in Paris. Then, US band The Killers does … exactly the same thing?

Exyzt installation Ripped off by “the Killers”

In fact, the two were so much alike that over at Create Digital Motion, we just assumed it was another Exyzt install job. (Apparently, that isn’t so; even if it were, uh, novelty wears off a bit when you do exactly the same thing with another artist.)

Originality. Try it. It’s amazing.

You know what, by contrast have at those two seconds of rhythm that no one can recognize anyway.

(In fairness, as Wallace points out, MTV is likely to blame here. The Killers were just playing in the cubes and, most likely, were not directly responsible for the stage design.)

How’d you score?

How far did you get before you had to lie down, or strum an original tune on a ukulele? (Wait, damnit, that sounds just like “All the Things You Are.”) Let us know in comments.

• In many circles, Metallica is no longer cool or never was cool.
• Lawyer make people MAD. Angry. Smash. (Apparently in addition to going after 60,000 pages of fans on Napster, Metallica doesn’t even like fan-made buttons.)
• Metallica is not Radiohead or Trent Reznor. (Stop the presses!)
• Even if you’re not Radiohead or Trent Reznor, you probably want your fans on your side. Pitchforks and torches tend to be a bad sign.

Of course, some might see the doomsday scenario of Internet music releases, in which fans determine that all music should be free and you can’t make money on releases any more. Big bands give away their stuff for free, the independent artist dies, music isn’t made any more, etc., etc. But given glowing fans proclaiming that they’re “glad I could shell out 40 pounds for the discbox” of In Rainbows, that seems unlikely.

And that’s the fundamental nature of fans. They’re looking for ways to give you their money so you can give them something back. Lesson learned by Metallica: don’t piss them off.

Fans Rip Metallica a New One [Wired.com Listening Post; enjoy the Napster-era parody video]

Photo: massdistraction, via Flickr.

Let this be a lesson to you, purveyors of online music. If you do DRM-lock digital music, be prepared to continue to support it well into the future, lest users rebel. Microsoft announced earlier this year that its MSN Music service, defunct now for some time and never terribly popular, would cease to function as of August 31, 2008. This would mean that people who bought tracks from MSN Music would no longer be able to authorize files to play on new PCs and devices. The only workaround: burn to CD and re-rip.

Even on a relatively unsuccessful service, though, that caused a major outcry. Result: Microsoft has backpedaled, extending the deadline to "at least the end of 2011" and possibly even beyond. (By then, you may have to appeal to our new robotic overlords anyway, after the Great Cyber Rebellion of August 4, 2011. Oops, sorry, the people of your time aren’t supposed to know about that yet.)

The lesson here seems clear to me: the cost of DRM is ultimately exacted on the vendor. It’s especially ironic as video sellers move toward more DRM rather than less, but DRM in music seems utterly dead. And whereas the DRM controversy began as a discussion of piracy issues, it’s now centered on sales. The simple fact of the matter is, online music has proven to have real profit potential, even if it’s been slow to catch up with the late 90s CD bubble. True, DRM does live on in subscription services, though I think the comparison there isn’t entirely valid — the point of subscription models is unlimited access to music, not necessarily building permanent collections. And even there, we’ve seen a migration away from DRM, as in the streaming/purchase model on Lala.com, which I examined earlier this month.

Tomorrow night, I’ll be attending the launch party for the Wax Poetics digital download store, and they’re a print magazine for vinyl buffs, for crying out loud. (Oh yeah — guess that bit about print and vinyl being dead was also wrong.)

Conventional wisdom: 0. Music lovers: score.

As using sounds produced on unusual 8-bit systems and game consoles grows in popularity, some artists are appropriating the music as their own. Sometimes, as with Beck, a well-known or better-marketed artist is using lesser-known artists for purposes of novelty. That alone has riled some in the hard-core chiptune community. In some cases, though, artists are resorting to outright theft. In the most recent case, part of the problem is people misunderstanding Creative Commons licenses, even though those licenses are designed to encourage sharing.

Is Creative Commons a safe license to use, or does it encourage this kind of theft? I think CC is actually a solution, not part of the problem – and this illustrates that.

Not Just Timbaland: Fitts for Fights Syndrome

Online music piracy is well known. But ready access to music online has led to a much more serious problem: digital plagiarism.

The best known case, of course, is the infamous 2007 Timbaland Controversy, in which Timbaland apparently stole musical elements from Finnish demoscene artist Tempest in the song Do It by Nelly Furtado. (See EM411 story, Wikipedia article.) But Timbaland isn’t alone.

At least Timbaland was using a sample; some artists steal whole songs outright. The notorious Norwegian duo Fitts for Fights performed entire sets stolen from demoscene/"microscene" recordings — and kept playing the stolen tunes live.

In April of this year, Laromlab released an entire album — every last track — stolen from other recordings. After CMJ reported the story, widely discussed on chip community 8-bit collective, the "artist" was forced to admit the entire album was a "hoax." (Thanks, Peter Swimm, for the tip.)

In fact, the track record here demonstrates that, for all Timbaland’s press as the most famous figure involved, micromusical plagiarism is rampant. It’s not just geeks getting defensive; there’s something to this, fueled by the novelty and apparent obscurity of the music. (See also: an ongoing thread on Pouet.net.)

Crystal Castles and Creative Commons

The latest episode combines 8-bit musical plagiarism with an abuse of Creative Commons licenses. Crystal Castles is a Toronto-based band that’s gotten quite a lot of positive press for their use of 8-bit sounds, including a keyboard with an Atari chip. (And there’s the source of the problem: this stuff is "hot" partly because it’s novel to mainstream press.)

Unfortunately, some of Crystal Castles’ sound apparently isn’t their their own.

8-bit collective again noticed something is amiss, this time with their track "Insecticon." Far from simply sampling a track, the tune rearranges entire musical contents as the basis of the new tune. (Many in the 8-bit collective community at least claim they’re pro-sampling.)

There’s a difference in this case, though: the tune in question is Creative Commons-licensed. It’s possible Crystal Castles thought, incorrectly, that that meant "free." However, the CC license used specifically requires attribution, non-commercial use, and that the derivative work be released under the same license — that’s three strikes against Crystal Castles. The GPL license used in open source software has similar stipulations, and neither license means something isn’t protected by copyright law — the maker of something is still the copyright holder, and uses those rights to define the way in which they want their work used and shared.

Noted chiptune musician Marc Nostromo (M-.-n) writes us with a detailed explanation:

1. There is an unreleased track of Crystal Castles called ‘instecticon’ that borrows whole chunks of belgian artist lo-bat’s work.
Here is crystal’s track:
Insecticon
and here is lo-bat’s
My Little Droid Needs a Hand
Even tho the original track has been pitched down and chopped, there is no doubt it’s the same. Gameboy sounds are hard to get and the chances of getting the same complex sound lo-bat can get is absolutety zero.
The track is also featured on CC’s record label myspace
http://www.myspace.com/liesrecords
and although it NOW says lo-bat Vs. CC, it wasn’t before the story got found out:
http://discodirt.10pm.org/insecticon.png
Another ‘unreleased’ track of them ‘bitter hearts’ is just a mash up of several lo-bat tracks with ugly drums on it.
http://www.youtube.com/watch?v=j4vWlbO_qoQ

2. There are two aspect in this.

A) The first is obviously that Crystal Castles broke (and still does) the creative common license that the track was released under. The license specifies that the track can be used, remixed and transformed under the following conditions:
1- Attribution. You must give the original author credi t
2- Non-Commercial. You may not use this work for commercial purposes.
3- Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under a licence identical to this one
In this case, non of the points have been respected.
It’s quite a big deal since a LOT of artists are trusting creative commons and this story puts the license to doubt, since it seems people can break it and use other people’s work to look cool or build a hype. Even if lo-bat’s work has not been directly used for commercial purposes, it certainly has been used to build the image that they were out there, build press and get visibility.

B) Crystal Castles has been getting a lot press using the image of getting sounds nobody did before by using modified old console chips and is somehow stealing the whole ‘concept’ that the chiptune community is based on, and now we discover that rather than thanking the very own ground of this, they actually ripped the guts of it.

It’s actually not the first time they steal someone else’s artwork, there’s been quite a big issue about them using someone else’s drawing for their own stuff.

The artwork example is a good one. In that case, Crystal Castles "found" an image that they decided to use without credit for promotional materials in the hopes that "the artist might reveal themselves." Then, when that artist did reveal himself, it seems the band strung him along about payment and used the artwork on everything from an album cover to t-shirts without permission. (Hint: if you’re a band and think you might yourself get into similar trouble, put it in writing and avoid fights. Well, unless you’re trying to rip off the artist, in which case, uh, behave like Crystal Castles?)

They Fought The Law And The Law Won

I’d like to respond to the concerns about CC.

This isn’t the first time Creative Commons itself has been under scrutiny. Virgin Mobile got into trouble when it used Creative Commons-licensed images from Flickr in an ad campaign. (See discussion on Creative Commons’ site.) That case was similar to this one:

1. Virgin didn’t follow the license terms. They simply assumed the CC-licensed stuff was "free" and violated specifics of the license.

2. A CC license doesn’t mean you’re magically above the law. In Virgin’s case, the bigger problem was that the CC license doesn’t excuse you from the need to get a model release, legal permission to use someone’s image. When people in the photos found themselves plastered around the city without their permission, they were understandably upset — which is why the laws protecting people are in place to begin with. Now, I’ll admit, this is one rule that gets regularly ignored — but that doesn’t change the law, and it seems if you were plastering someone’s image on bus stops everywhere, you’d be more than typically cautious.

CC, of course, isn’t to blame, and far from discouraging people from using CC licenses, I think this illustrates the need for them. Bottom line:

• CC isn’t the problem. Works released under a traditional copyright are just as susceptible to abuse as works released under a CC license. These rules are tough to enforce sometimes — but that doesn’t mean they’re not the law.
• You still own what you make, for a reason. International and national laws protect creators from other people abusing their work. Copyright law came about because creators’ livelihoods were threatened by people stealing their output. Just because something isn’t a physical object doesn’t mean it isn’t theft if someone else takes it, especially if they call it their own. These laws hold even if you use "free", open source licenses or Creative Commons licenses. They give you the freedom to share your work in the way you want. Even the most radical advocates of these licenses believe in that right. Anyone who thinks they’re above the law because of a license is dead wrong.
• The best enforcement is publicity. True, online access is making this kind of theft more common — but it’s also making it easier to track. Websites helped publicize all of the cases in this story. They didn’t always result in financial damages, but they did help put credit where credit was due, and often stopped the infringing activity from continuing.
• Creative Commons is helping, not hurting. By raising the visibility of copyright issues and specific licenses, CC is activating awareness of these issues. True, some people misunderstand CC licenses as meaning something is "free" — but that’s the point of CC. People assume anything online is "free" for their use. CC puts that responsibility back in the hands of the person making the stuff, and gives them choices about how something will be used (will it be non-commercial, will other people be allowed to remix their work, etc.)?
• Sharing is good — and you shouldn’t have to choose between sharing and your rights. The whole reason for Creative Commons is that people want to share their work, but they want some basic rights: they may not want someone making money off the result, and they will almost always want credit. The whole point of CC is that it’s your legal and ethical right to make those choices for what you’ve made.

CDM Goes CC

I haven’t done it literally because I haven’t gotten around to it, but it’s time for CDM to put its license where its mouth is. We’ve already released images and videos under a Creative Commons license, and this week we’ll be changing the license for all content on the site to a Creative Commons license. (I’ll update the footer with copyright notices on all our sites soon.) The thing is, traditional copyright rules unfortunately haven’t protected us in the way we’d like anyway; it doesn’t stop people from re-purposing RSS feeds for spam blogs, for instance. But for people who do obey the rules, we’d like to encourage sharing. We’ll be working on new projects that, beyond my usual ramblings and rants, could really benefit from this license. Stay tuned.

And if you have questions about CC in general, I have some contacts that can elucidate some of these legal issues. So stay tuned — we’ll follow up on this story, and on CC legality in general.

Remember, your source for all things Creative Commons — including friendly search engines that help you find content like this Flickr images — is creativecommons.org.

It seems Warner exec Jim Griffin was unprepared for the rancor of the Interwebs, because he’s backpedaling on a proposal to create a blanket fee for ISPs on music. All of that was just part of a “dynamic conversation,” says Griffin in a statement, and “It would be unfortunate if a creative and fruitful dialogue were sidetracked by a rush to judgment about what was simply my own illustrative example of one of many concepts I have in this space.”

Yes, indeed — it’d be unfortunate if a discussion of a hair-brained scheme with no plan for implementation or investment from any of the stakeholders were derailed by the fact that it was a hair-brained scheme with no plan for implementation or investment from any of the stakeholders.

See some excellent coverage and analysis from CNet News.com’s Greg Sandoval.

And as Sandoval notes, “What happens is that people hear the word “tax” and objective analysis goes out the window. People condemn and vilify. Out comes the torches and pitchforks.” That lack of objectivity is what frustrated me yesterday, even without being a specialist on the legal details

Of course, I disagree with Griffin about what happens to the “dynamic conversation” when people bring out the pitchforks. He says people lose the opportunity to “consider a variety of raw concepts without prejudice.” I say they lose the opportunity to consider just how out of touch with reality his proposal is.

Music attorney Chris Castle is far more qualified than I am to make such arguments:

Warner Music’s tune of folly 

He points out some of what I did — plus more problems I didn’t. (Hey, there are so many holes in this proposal, it’s impossible to cover them all.)

• The proposal doesn’t calculate what people are listening to
• The plan only covers Warner Brothers
• The plan promises billions to creative people without determining how to split it up or subtracting the cost of implementation
• The plan would require amending the US Copyright Act
• … and that could violate international treaties
• … and it’s a plan for the US while the Web is international
• … and the French defeated a similar plan
• … and ISPs won’t like it
• … and P2P services being targeted won’t cooperate
• … and consumer’s don’t like it

Yeah, I only got part of that list before.

Aside from that, this is a great idea! I think. Actually, I’ve forgotten what the original pros were supposed to be. We’re all free to pirate music for a small fee that violates international law? Uh … great?

Here’s my problem with the pitchforks and rioting response from bloggers: the fear and panic suggests this is something that might happen, when it’s clear governments, lawyers, copyright holders, ISPs, P2P services, music consumers, Internet users, Internet rights advocates, and even other labels are likely to be against it. It’s like people held up a “Don’t tread on me” banner when they should have held up a “Ground control to Major Tom, we’ve got no idea what the *(&$# you’re talking about.” sign.

And that brings up a fundamental question I have:

Just what is it about the Internet that makes it suddenly necessary to have to “consider a variety of raw concepts without prejudice.” I mean, maybe I’m caught in the Old World models here, but couldn’t we try talking about things that aren’t wildly impractical, illegal, and counter to the interests of everyone involved?

Oh, well. Back to talking about music technology on this site. And, hey, if the blog torches and pitchforks helped give a reality check to an out-of-touch exec, maybe that’s not such a bad thing. Have a great weekend. See you Monday with odd sound-making boxes.