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

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

Here’s a new idea: fight back.

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

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

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

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

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

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

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

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

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

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

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

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

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

Help Write Episodic Content’s History

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

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

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

Here’s the call to action:

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

For more information:

EFF Tackles Bogus Podcasting Patent – And We Need Your Help

Patent Busting Project: VoloMedia

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

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

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

Policy, intellectual property, and changing business models remain hot threads to follow on this site as we watch the transformation of music distribution in the electronic age. This time, we welcome a new contributor to look inside the issues. Surprise: one radio host sides with the record industry, and the issues may not be as clear as you think. Jo explains. –Ed.

Imagine this:  A track from your new record is being played out on the radio — nonstop. All the major indie stations in Los Angeles, New York, Chicago, Miami and Atlanta have picked it up. At this point, I’m sure you’ve already ordered a fancy synth that you plan to pay for with your big check. But there is a problem: You did an acoustic version of Jimmy Edgar’s “My Beats.” So who gets paid? Jimmy Edgar. Guess who does not get paid? You!

The Performance Rights Act is a bill before the US Congress that would require terrestrial radio stations to pay royalties to the performer of a track. It is being supported by artists like Billy Corgan (who recently testified on behalf of the artists’ rights group, the musicFIRST coalition) Don Henley, Jay-Z, Billy Idol, as well as the Recording Industry Association of America (RIAA). Aside from the issue of “fairness,” the United States is one of the few countries that does not require payment to the performing artist when her track is played on the radio.

Celia Hirschman, host of “On the Beat” on Los Angeles’ KCRW public radio, a broadcast on changes and trends in the music business, says she agrees with the act. (Celia notes these are her personal views, and do not necessarily reflect the position of KCRW.)

“For decades, the laws have favored a free license to play artists’ music on radio,” says Hirschman. “This was ratified by Congress and basically accepted by all concerned…This free pass no longer makes any sense, especially for commercial radio. A reasonable compulsory license fee for all radio, with lower rates to non-commercial is an equitable solution for artists and labels.  Commercial radio stations earn their income by selling advertising because of their programming content.  It’s only fair that the content providers are compensated.”

“This free pass no longer makes any sense.”

Celia Hirschman, host of “On the Beat” on KCRW

Opposing the bill is the National Association of Broadcasters (NAB) who claim the legislation amounts to a “tax” and will force many radio stations to go bankrupt. Additionally, opponents of the bill point out that many artists were first discovered because of radio exposure, which translates into sales (ticket sales, album sales and merchandise) and promotion of their brand. If the station goes under, so does the performing artists’ potential income.

Dennis Wharton, EVP of NAB, claims that the RIAA “relies on cherry-picking international examples that paint a distorted picture of copyright law.” “The US protects sound recordings for 45 years longer than Canada and many countries in Europe, says Wharton. “If it’s “international parity” that RIAA is looking for, they ought to examine the entire landscape.”

In fact, the international landscape is not equal.  Many countries in Europe run stations owned or subsidized by government funding. The foundation of our copyright laws are different as well. In the United States, we use the term “copyright” whereas many European countries use a term equivalent to “author’s rights.” “Copyright” reflects an attitude that is concerned with the restriction of uses for economic reasons, whereas the term “author’s rights” reflects an attitude that is concerned with the extension of the author’s intellect and self.

I recently spoke with Brian Lee Corber, an IP attorney who has closely followed the Performance Rights Act. In his opinion the bill will not pass. “Collecting royalties for the songwriter is already inaccurate; it’s based off of surveys. Logistically, collecting royalties for the performer is even more complicated…what happens when the performer is an orchestra?” Corber feels this logistical nightmare may make it difficult for the legislature to justify passing this bill.

As a reaction to the Performance Rights Act, NAB is backing the Local Radio Freedom Act which calls for no tax or fee for the performance of a sound recording on the radio. As of March 24th, 9 more lawmakers signed onto the Local Radio Freedom Act, making the total number of co-sponsors 158.

For More Information:

Music First Coalition: www.musicfirstcoalition.org

National Association of Broadcasters: www.nab.org

KCRW: www.kcrw.com/etc/programs/ob

Sources:

Dougherty, F. Jay. Copyright Law Class at Loyola Law School, March 24, 2009.

“Mr. Corgan goes to Washington for a Bigger Piece of the Radio Pie”

http://blogs.suntimes.com/derogatis/2009/03/updated_mr_corgan_goes_to_wash.html

“NAB disputes RIAA Claim Ahead of Performance Rights Hearing”

http://radioink.com/Article.asp?id=1206143

“NAB, musicFIRST go Head-to-Head on Royalties”

http://www.fmqb.com/Article.asp?id=1235167

“Smashing Pumpkins Singer, Billy Corgan Testifies Before Congress”

http://www.opposingviews.com/articles/news-smashing-pumpkins-singer-billy-corgan-testifies-before-congress

Los Angeles-based CDM contributor Jo Ardalan is the Managing Director and Founder of Fixed Noise, a community-based company specializing in audio software development, artist management and business development in tech and entertainment.

She’s a veteran of Waxploitation and Native Instruments, an experienced sound designer and engineer, and consultant.

And she has a Reaktor tattoo.

Here in the US, Congressional Democrats have reversed not one but both bad decisions on the role of the arts in the economic stimulus package. Provisions that would have blocked any stimulus funds from reaching arts centers, museums, and theaters have been dropped. (Golf courses and casinos are still in the ban. Maybe this time, someone read the actual legislation.) And the US$50 million (out of some $800 billion) that would go to the National Endowment for the Arts, dropped from a Senate version, has been restored to the bill. It appears both of those changes not only cleared the House but are part of the Senate version that’s in votes as I write this.

If you believe artists shouldn’t rely exclusively on government funding, you can still celebrate. The arts will receive far less of a handout than a lot of other industries — and do more with it. Arts advocacy groups estimate that for every dollar of the NEA money, another seven dollars will come from public and private supporters. What the tiny amount of federal spending does is make up for shortfalls in lean times, protecting an arts sphere that depends on a variety of sources for revenue. Nearly 15,000 real jobs could be saved by those same estimates. That means an arts infrastructure in the US that can remain healthy and independent.

But the important story here has nothing to do with the stimulus bill, or even the US. It’s that public outcry from people like you rescued this legislation. And if public support can do that, it can do a lot more for the arts, not only in federal spending but other key areas.

Americans for the Arts says supporters from its organization alone sent some 100,000 messages and letters to their Members of Congress. That’s not counting the many more letters and phone calls from constituents, not to mention letters to the editor and press attention.

Here’s one example from CDM comments, by Dartanyan Brown:

I heard the congressman from Nashville (!) talking down the $50 million for the National Endowment for the Arts. I immediately called his office and let his staffers know that (blue dog democrat Cooper) was full of hot air on this issue. As a synthesist, jazz musician and former NEA artist-in-residence I had the facts and anecdotes to make my points clear.
If Rush Limbaugh can get his folks to call, we can at least counteract them with some facts and persistence.
Call them, they listen, they respond to numbers.

More background on today’s developments:
House passes stimulus bill with $50 million for artists [Los Angeles Times]
U.S. Senate Begins Voting on Obama’s $787 Billion Stimulus Plan [Bloomberg, including various other details]

To all of you who were active, and to our elected representatives who got this right, thanks.

Targeting the arts in this way may have backfired for those elements seeking to vilify it. Instead, it caused thousands of people to rally to the cause. Here’s an example of organizing meetings in Chicago – and a renewed sense that the arts could be part of the economic solution, not the “costly distraction” so many try to make it out to be.
Organizing around art [Chicago Tribune]

Folks, we have a lot of work ahead of us.

To wrap up the thread I started, the plot in US politics, in the space of a few short weeks, has gone something like this:

1. A new Administration could bring new vision to making the arts part of the economy.
2. Arts spending is wasteful.
3. Any spending on anything should be specifically prohibited from reaching the arts, as that would be wasteful and evil, and the arts are the best symbol of Waste itself.

I live on Wall Street (technically, on the corner of Pine). I guess we’ve now forgotten about them.

As digital musicians and visualists, relevancy to the rest of the people around us is important. What we do can be meaningful to people, and it can pay for our health care and our loved ones and our kids. It’s often not a life or death thing – but then, neither are many jobs. It’s a gig. Heck, even if it’s a hobby, it supports someone else’s gig.

So that raises some really deep questions about what’s going on with our society when arts-related jobs are singled out above nearly every other sector as meaningless or “wasteful” or not “real jobs.” This stimulus bill will pass, but that fundamental misunderstanding isn’t going anywhere – and it’s time to recognize there’s a problem, and start to work to set it right.

Roughly half of one one hundredth of one percent of the US economic stimulus plan was slated to support job protection in the arts — US$50 million. Meanwhile, we’ve just passed one trillion-dollar bailout of finance and are told another trillion is needed.

You might expect anger to be directed at finance, given their industry was at the heart of the problem. Instead, legislators single out — the arts?

In last-minute negotiations in the US Senate, legislators — including key liberal Democrats — have gone still further to ban any use of stimulus funds for the arts (”museums,” “theaters,” and “arts centers” get singled out). The move was largely symbolically-motivated, not fiscally-motivated. Adding insult to injury, arts institutions are lumped together with casinos and golf courses – literally.

U.S. Senate votes against arts [Chicago Examiner]

Arts Bashing [Center for American Progress]

Some of those Democrats, incidentally, are now pleading ignorance – including my own Senator Schumer:
UPDATE: Senator Charles Schumer in Hot Water With Local Arts Organizations [New York Magazine]

I had really hoped to leave this issue rest, but I want to be clear: this ban would cover appropriations for Labor, Education, and Transportation that could also give funds to arts organizations. It doesn’t just strip the $50 million for the National Endowment for the Arts — it locks out any arts activity from the nearly trillion dollars in the rest of the plan. If you make roads, you count – if you make art, you don’t. Senator Coburn, who introduced the amendment, didn’t even vote for the final bill, meaning this wasn’t even a concession to get the bill passed.

This ceases to be a legislative issue. It’s now a cultural war — one that’s being waged by both parties on a target that lacks powerful, rich advocates. That’ll be — you. And we know from CDM readers around the planet that this is an issue in other countries, too.

You may not believe in lots of government funding for the arts — I’d tend to agree with you, in that it’s not a panacea. But these were a small amount of funds intended to support jobs in arts organizations, which receive lots of their funding from you and from private interests. If you believe in public and private (and not government) funding for the arts, this is exactly the kind of targeted stimulus you want, and it could save thousands of real jobs.

Ironically, it’s in the US that we have the strongest private funding for the arts, which is a good thing. American Institutes for the Arts, the advocacy group supporting greater government funding, isn’t looking for handouts; they point out that every $1 spent by the federal agency would be matched from $7 in public and private funds. That means a $50 million NEA stimulus could have saved or created 14,422 jobs by their estimate.

OPEN FORUM: Economic stimulus should invest in creativity [San Francisco Chronicle]

I’m certainly not in line for a government handout. But am I angry when I hear “real jobs” as the talking point? Am I angry when people in the arts are considered lower than condoms? Heck, yeah.

From a Republican campaign ad airing on the radio next week:

Democrats said they would fight for fiscal responsibility in Washington, but went back on their promise by voting for $335 million in STD prevention, $75 million for smoking cessation and even $50 million for the National Endowment of the Arts.

(emphasis mine)

GOP radio ads to target House Dems who supported stimulus [USA Today On Politics]

Or as Representative Jack Kingston, R-Georgia put it:

“We have real people out of work right now and putting $50 million in the NEA and pretending that’s going to save jobs as opposed to putting $50 million in a road project is disingenuous.”

Congressman Blasts Arts Jobs [Volume One]
Arts jobs are real jobs [Los Angeles Times]

The arts are the punchline – and the punching bag. I’m all for fiscal responsibility, but given the current banking crisis, is it really money for the arts that’s fiscally irresponsible?

Look, policy is one thing. The battle over economic stimulus was bound to be contentious, and the dangers facing the US and world economy have put immense pressure on the process. I think in a way, just getting defensive on this issue is exactly what anti-arts advocates want artists to have to do.

My question is fundamental: why can’t the arts and “entertainment” be considered part of the economy? And what do we have to do, exactly, to convince people that there are real jobs that don’t involve building roads?

Side note: so many people are complaining about this issue (try a Google or Technorati search) that I’m hopeful the final bill will nix this nonsense and protect arts funding, or even the NEA. But as I say, it’s really the fundamental debate that needs fixing more than any one bill.

While I’m discussing the potential to take new directions in the arts and technology worldwide, and about ways in which creative technology can help repair the global economy, I’d be remiss if I didn’t make one sobering concession:

To many policy makers, the “arts” don’t count as the economy. If you’re employed as an artist, (and by extension in creative fields), you’re not a worker. Um… thanks?

Never mind that in the US alone, nearly 6 million people are employed in the arts – or that that figure itself is  probably wildly conservative, compared to the many more creative freelancers and the economies around them. (Ask companies like Yamaha, Roland, Korg, Avid, and Apple, who then sell products to musicians, many of them pros.)

It’s not just a US problem, either. The Dutch government – just the kind of liberal European government decried by American conservatives – had to be convinced of the value of its music technology research center in 2008.

To me, this shouldn’t be an issue that pits liberals versus conservatives. In fact, important issues around the economy have always been solved by cooperation between people of different political persuasions and parties. Unfortunately, conservatives have decided to declare the arts “liberal.”

The Heritage Foundation claims funding for the arts amounts to “pork.” Leading Republican Jeff Flake, when asked for an example of pork in the current proposed economic stimulus bill, replies:

"For example, $50 million for the National Endowment for the Arts," Flake says. "There’s no better example than that. How that stimulates the economy, I don’t know."

Does ‘Pork-Less’ Stimulus Bear Porcine Whiff? [NPR]

Now, I wouldn’t be surprised if there is some pork in there – but the NEA funding is all Rep. Flake can come up with? This seems to be less about policy and more about reigniting culture wars.

Specifically, the conservative talking point is to focus on “productivity” and producing goods. The implication: if your job involves the arts, you’re not a “productive” member of society. (I’ll have to scratch my head to work out just what “goods” the financiers buying up bundled debt were producing. I’ll get back to you on that one.)

Of course, the way in which arts funding would stimulate the economy is obviously the way any other part of a stimulus package would – by providing support to people doing work in a field during rough times, support that in this case provides an educational and cultural resource shared by everyone. Ironically, part of the reason these aren’t arts jobs for individuals is that the US long ago eliminated direct funding for individual artists, a move designed to placate conservatives opposed to arts funding.

Yet for some conservatives, the arts have been used as a key talking point, even though it’s $50 million out of an $875 billion bill. That’s a tiny fraction of one percent of the funding, like arguing over the number of pennies in the tip on a $1500 steak dinner. Now, I’m all for some genuine fiscal conservatism – it’s badly needed in these economic times. And likewise, I would hope the opposition party in Washington is tough on the Administration plan. But where are those conservatives? Why are they beating up on a tiny line item over philosophical reasons? In the past, conservatives and Republicans had long been patrons and supporters of the arts. We could use some old-fashioned conservatism right now if we’re going to save the planet and its economy.

If you want to stimulate the economy, you invest in jobs, in making actual goods. In 2008, the US taxpayer funded hundreds of billions of dollars in handouts to the failed finance sector that singlehandedly created the economic crisis. Billions of those dollars wound up ending up as executive bonuses.

But, guess what? If you’re an artist, if you’re a creative person, you don’t even count as a person with a job.

I bring this up because if you do live in the US, you can call your Representative tomorrow and tell them what you think about this issue. It’s especially important if you’re a Republican or a conservative, because I think there are more important points to be made – and this can distract from them. This could be a bipartisan issue again. And for everyone else, we clearly – as an artistic community – have some messaging to work on. We can’t allow this to be a political issue, a wedge issue. And as former NEA chair Bill Ivey puts it:

"Once we move away from a consumerist view of a high quality of life — once we’re forced away from it — arts and culture, creativity, homemade art, those things can begin to come to the fore."

Stimulus Package Includes Millions For The Arts [NPR]

American citizens have turned their eyes to the incoming Obama Administration for all kinds of change. It wouldn’t be overstatement to say that just about every possible hope is being pinned to the new government – practical or not. But there’s good reason to believe some significant changes may be in store for both the areas of arts and technology, in ways that are not only relevant to CDM readers in the US, but could impact the global climate for these areas.

The federal government in the US can’t do everything, particularly when economic pressures are likely to make budgets tight. But they can do something to set the tone. Even more importantly, there should be opportunities for people who want change to become active and vocal, and to learn from each other, wherever we are in the world.

The agenda I think we’ll want as tech-using artists and makers:

• Defend innovation, commercial or common, from patent abuse (see: White House)
• Embrace open source – something that could benefit, again, commercial and community endeavors alike (see: BBC, OSI)
• Make the arts a priority, and one that via technology connects to renewed interest in math and science (see: NYT)

As you can see, regardless of your party affiliations or even country of citizenship, these are things we can work on together. For a start, I’ve already talked about personal changes – not simply governmental or political changes – that can make a difference in our communities:

Your Own Times of Change: Greetings, “Makers of Things”

Here are some additional issues that may well interface with the incoming US government, with impacts on the US and around the world.

Above: Remixing history, through the ears of the UK.
Obama’s Inauguration as Reaktor Mash-Up: Tim Exile

Technology: Patents

You can read the Obama technology agenda on the new White House site (itself a subject of discussion and hopes for new transparency).

http://www.whitehouse.gov/agenda/technology/

A lot here reads like campaign language, so it’s tough to say what the actual policy will be. But this bullet should be especially interesting to digital musicians and visualists:

Reform the Patent System: Ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration. Give the Patent and Trademark Office (PTO) the resources to improve patent quality and open up the patent process to citizen review to help foster an environment that encourages innovation. Reduce uncertainty and wasteful litigation that is currently a significant drag on innovation.

I think flawed patents may be the single biggest to new creative technologies. It impacts both hardware and software, and everyone from DIY makers to useful research in big corporations. (And yes, even big corporations can do research that’s useful to the rest of us. For one thing, even some of that corporate research is open source.)

Patents in the US in particular have been wildly abused. Companies who don’t make anything have effectively “squatted” on ideas that might someday turn into products. Those patents are defined so broadly that by the time a genuine innovator invents something real that works, they often find they’re in “violation” of a nonsense patent. Large businesses, acting defensively, have added to the problem by over-patenting their own research. Clearly, we need some common sense rules so that patents cover people actually making stuff.

There are few political issues more directly relevant to the music and visual technology covered on CDM. I’ve seen patents stifle innovation countless times on this site, and when that hasn’t happened, fear about patents has often been a factor in preventing people from more aggressively pursuing their inventions. It’d be unrealistic to expect the Obama Administration alone to magically solve these problems. But a friendly Administration could invigorate debate, meaning now is the time to get active on this issue. I’m no expert in patent law, but I’ll certainly welcome people who are to become involved.

I’d also like to see the open source community begin to formulate a way of responding to patent issues. Open source has almost exclusively dealt with licenses in copyright terms. Certainly, the community is sensitive to the issue, but just sitting around worrying about patents does nothing: open source inventors need to start formulating a concrete strategy. They’ll need help, not only from the government but experts in the field. But the timing is right.

Whether people want to open-source their inventions or not, I think DIYers and researchers and even businesses who actually create stuff have a common need here. So it will be equally important for that open source community not to just blindly rail against patents, but find policies that work for everyone. “Makers of things,” not just open source advocates, have an opportunity to come together.

Technology: Open Source

The Obamas clearly have the power and popularity to popularize trends and ideas. Sometimes, that borders on the absurd: when it was revealed the Obama children wore J. Crew, the clothing company’s site crashed. It’s little wonder, then, that open source advocates would hope the new Administration would champion their cause. BBC News’ Maggie Shiels has a great story on those possibilities:

Calls for open source government [BBC News, via Slashdot]

One figure behind the rallying cry for open source is Sun co-founder Scott McNealy. That’s interesting, as Sun was actually quite late to the open source party. Sun didn’t open its flagship Java technology until after McNealy’s tenure. The fact that he has been won over I think is telling – McNealy created one of the world’s biggest tech vendors. The rationale for his appeal is simple: open source is cheaper.

I think the case should actually be broader. If the US – and, indeed, the economically-weak planet – want to advocate new growth in education, science, and technological innovation, it’s a no-brainer to have at least some technologies common and shared. That could ultimately lead to benefits for big vendors and individuals and the economically challenged alike.

And if you want to push open technology, artists should be among your first stops. We push the real-time capabilities of computers harder than anyone. For instance, when researchers wanted to demonstrate real-time Java, they chose a Bach performance. Why? Playing Bach turns out to be more timing-critical than one of the other applications – controlling a nuclear submarine. (The Army phrase “Be all you can be” comes to mind.) The drive of self-expression can be a powerful way of to realize technology’s full potential.

Direct quote on that, by the way:

Music synthesis is, in fact, more stringent in its real-time needs than many other hard real-time systems. For instance, avionics typically operate at a period of 20 milliseconds, or about 10 times longer than the synthesizer.

Harmonicon research at IBM

Open source needs music and visuals – and we often need open source. In music and visuals, the lack of interest in basic, open frameworks has often stifled the success and expressivity of the tools we use. I was impressed by the new stuff at this year’s NAMM. But many of the leading technologies – Novation Automap and M-Audio HyperTransport for controllers and Akai’s APC and Native Instruments Maschine among the hardware announcements – were limited by aging standards and proprietary implementations of control. Those same vendors struggle with drivers for proprietary computer operating systems owned and controlled by someone else. The result: music technology is often hard to configure and unreliable, limiting its appeal and reducing the number of customers. The solutions there aren’t all easy, and open source is no panacea, but I don’t think I’m overstating the problem – or the lost potential that could be coming from the open source world.

Of course, the Obama Administration is unlikely to do anything of practical use to artists or musicians when it comes to open source. But it could set a tone – and I’d argue, it already has. The Open Source Initiative’s Michael Tiemann noted just after the election that the Obama campaign had benefited from running open source tools. Whether or not Obama mandates federal offices run OpenOffice or something like that, I’d say the proof of open source’s utility is already out there:

Barack Obama proves the power of Open Source [Open Source Administration blog]

And that should be the main interest of arts technologists and creative tech vendors – politics aside, open source can pay.

Arts

We have mixed blessings in the US. On one hand, government arts funding has often been scant. On the other, we have an artist community that has vigorously defended its own value against the harshest critics, a uniquely-generous private funding climate, and a bootstrap, DIY approach by artists to supporting themselves. Arts advocacy groups are nonetheless eager to use the Obama Administration as an opportunity to get more badly-needed support – and they’re using the economic stimulus as a new angle:

Arts Leaders Urge Role for Culture in Economic Recovery [Robin Pogrebin for The New York Times]

Don’t believe them? Here’s a number for you: US$167 billion. That’s the amount Americans for the Arts says nonprofits contribute to the US economy. (They also employ some 6 million people.) And that’s just nonprofit groups; the impact of the arts and music are of course far bigger than that. As evidenced by this site, that cultural economy is increasingly globalized, meaning the entire business of making things could grow around the planet.

Much of the actual policy here would be more symbolic than practical. The additional US$50 million advocates want for the National Endowment for the Arts would have little meaning to an individual artist, though I’m sure the agency would love to have it. But “reframing” culture as an important part of the business of America is something that’s badly-needed.

Along the same lines, calls for WPA-style support for artists as part of economic recovery:

Will Act for Food [Newsweek]

More practical, I think, is the need for US policy that makes healthcare more affordable and accessible to the self-employed, a significant group of American readers of the site. If individual musicians or visual artists or freelancing coders and visualists and the like didn’t have to worry about spiraling health care costs, they could contribute in other ways a lot more easily.

Globally, we need a climate that’s friendlier to artists in general. The recent struggle of music tech research centers like STEIM in Amsterdam and IRCAM in Paris – places Americans might have assumed would be safe – is solid evidence of that.

Connecting this to the material and business of this site sure isn’t hard. Musicians and visualists increasingly sell to fans and one another, build their own businesses from scratch, innovate technologically, share open source research, teach others, volunteer, and add DIY tech businesses to their portfolio as they make their own hardware and software.

One thing missing from the traditional arts advocacy approach is the ability to use music, movement, and motion to aid in innovating in and teaching math and science. With technology (or even without it), expressive media are a fantastic way of demonstrating math and science concepts and making them creative and personal. I know I would have had a much easier time in school with topics like physics and Calculus if I could have connected them to music and animation, and I don’t think I’m alone.

That’s the philosophical framework, anyway. Given that tone matters for all of these issues, it’ll be interesting to see whom Obama makes NEA chief and what steps that agency and the Obama Administration take in arts policy.

So, thus concludes the post-Inauguration edition of this story. But you can expect to see a lot more on all three of these issues as they directly relate to the subject matter(s) of these sites – and expect more than just the President making some of the headlines.

When should you tune in tomorrow to get the news? Thanks to the fact that some folks do send CDM press releases under embargo, some big announcements should happen at:

• Thursday, 1:00pm Eastern Time: This is the opening of the NAMM show, so it’s when many embargoes are lifted. Any really big stories that deserve it will get immediately published then.
• Thursday, 3:30pm Eastern Time: I have some specific stories that are held for this specific time that will definitely be published then.
• Over the weekend and later: Because I want to actually cover less but do it in more detail, expect other news and analysis over the coming days.
• The rest of 2009: Some announcements simply don’t make NAMM. We expect some news to come out of this year’s Messe conference in Germany. I expect in the near future trade shows in China will start breaking news. And most importantly, a lot of news doesn’t happen at trade shows. I’m personally excited by the stuff we’ll be seeing at things like our Handmade Music event coming from DIYers.

Some NAMM news is already leaking out today, and on top of that I’m watching as sites are posting press releases that are clearly under embargo. Now, that might seem a good way to get a jump on the news, except it’s not.

• Some big stories aren’t leaking. This is pretty absurd – I’m seeing forums leaking information and then assuming that they know all there is to know. They don’t. Forums will always do this, and that’s fine – but you can still be realistic. Also, some of the websites that are breaking embargoes on press releases clearly don’t have all the press releases – maybe because press folks aren’t sending them out because they know they’ll get published immediately.
• Press releases don’t tell you what you need to know. To be able to really cover a story, you need to understand what a press release says, not simply copy and paste. I love the 24-hour news cycle in the blogosphere, but we also need to be able to investigate and ask questions. So, you can either see stuff the minute it’s announced, or wait a little longer and get some analysis. And as you know, I always get everything totally right often get corrected by smart readers who know more than I do, which is the real point of Web publishing.
• If we don’t break embargoes, we get advance information. CDM doesn’t break embargoes or leak stories – that’s the policy. For one thing, there’s not really much point. If Steinberg had assembled a puppy farm and was experimenting on them to create the next version of Cubase, that would be something that would require journalism that reported on the story immediately. But with new tools, we actually want to have more time with them, so that means respecting embargoes and privacy so that we can talk in more detail later and really understand the technology.

Incidentally, that’s not to say I don’t comment on rumors – I just only do it when I don’t know anything, and I label it as such.

Okay, enough of the rant.

Let us know if you hear anything you think we should care about, as we really do rely on you. And do stay tuned.

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.)

It’s a nearly unanimously-held belief: the future of digital content will depend, at least in part, on revenue from ads. This site is supported by ads. Musicians and digital producers will be looking to ads to support what they’re doing – sometimes in the form of direct ad revenue, sometimes in support for sites and communities they use (Facebook, YouTube, MySpace, and so on). Ads are very often what makes the Internet free.

But if ad-supported models are going to work, the system that delivers the ads has to work. This week, I believe Google failed to deliver the solution it promises its publishers. They violated their own policies, violated the principle of their service, violated the trust of their publishers, and then failed to respond to an issue that was deeply time-sensitive.

When Third-Party Ads Attack

Before I’m misunderstood, let’s consider advertising policy, which is not the same as editorial policy. In print publishing, whether a small-town weekly newspaper or The New York Times, ad sales relationships have been directly between a publisher and an advertiser. Running an ad does not mean an endorsement of the advertiser or their message or product. In fact, newspapers frequently run “op ed”-style ads that directly conflict with editorial policy, though not without being criticized by some for doing so. The Times runs a regular full-page ad from energy giant Exxon/Mobil, for instance.

In online publishing, we very frequently hand over those relationships to a third party. We expect, in return, that our interests as a publisher will be served by the third party.

This week, Google AdSense bombarded an enormous number of partner sites, Create Digital Music included, with banners opposing same-sex marriage in California, a right that had been protected in that state. Bizarrely, many music tech sites were targeted. The ads were offensive to many publishers; whatever your feelings about marriage and homosexuality, these were effectively ads in favor of discrimination. One ad run on this site was also factually inaccurate, suggesting that California protections for gay marriage can be equated to a mandate to teach about same-sex relationships in schools; various California officials have said that’s not true. Even if you want to debate the issue, that means the ads were claiming something that was false, which is not as debatable.

But tempting as it may be to focus on the political issue and the ads themselves, the ads are not the problem. The problem is that Google failed its publishers, failed the trust we place in Google, and then failed to talk about what it had done. It’s a failure of really historic proportions, and one that really merits a close examination and open debate if ad-supported content has any future at all. The fact that Proposition 8 passed and passed by a very narrow margin, is likely to turn up the political heat on that debate. Advertising was widely credited for the passage of the proposition, making us as publishers unwitting partners in the passage of a proposition many of us would have opposed. But let’s not lose sight of the fact that, Proposition 8 aside, the fault is Google’s for delivering well below the expectations of publishers.

Google’s Promise to Publishers

Unlike the traditional newspapers I used above, using Google AdSense is essentially entrusting your ads to an algorithm, to one that connects your content to relevant ads. Now, no one expects this algorithm to be perfect. Sometimes, it’s downright comical. When CDM covered Hatebeak, a parrot that “sings” death metal music, we got ads for bird feed

That said, the basic pitch Google makes to publishers is relevancy. Without relevancy, ads look out of place. They detract from the quality of the content we’re publishing. And most importantly, ads need to be relevant to make publishers money, which is the whole point. At least in the bird feed example, it was clear that the algorithm was making some match based on content, even if it wasn’t one an human might pick. (In fact, it might even work then – interested in parrots? Maybe you are interested in bird feed, even on a music site.)

But don’t take my word for it. Take Google’s:

AdSense for content automatically crawls the content of your pages and delivers ads (you can choose both text or image ads) that are relevant to your audience and your site content—ads so well-matched, in fact, that your readers will actually find them useful.

They go on to say:

Competitive Ad Filter enables you to filter out specific competitors or specific advertisers.

Editorial Review makes sure that all Google ads are reviewed and approved by the Google team, ensuring that inappropriate ads don’t appear on your pages.

Of course, none of that happened here.

My site is not a political site. Prior to this issue coming up, there’s no way an ad specific to California, entirely political in nature, had anything to do with the context of the site. Now, after this has happened, I’ve started writing posts with words like “homosexual” and “gay marriage,” so those ads would be contextual now. But as of Monday when ads appeared here, they had no business on the site. In fact, it would have been just as inappropriate if an ad saying “Oppose Proposition 8” had appeared on the site. For political reasons, I might not have objected, but it certainly would not have been “ads so well-matched … your readers will actually find them useful.”

Naturally, Google does run some ads as a public service, like “Give to the Red Cross.” But an ad encouraging you to give money to help tsunami victims is relevant to everyone, and it’s an issue on which everyone can agree. Political ads are quite different. And, in fact, sites only run those public service announcements when Google’s algorithm can’t find contextual ads to deliver.

As many publishers point out, the bottom line is lost revenue when this system fails – part of the reason a lot of us are considering dropping Google permanently, even if we don’t see anti-gay ads again. Since Google is click-based, not impression-based, we were actually paying bandwidth costs and missing out on ad revenue in order to carry these ads.

That said, we still don’t really know why this happened with the Prop 8 ads. Did the advertisers just buy up random keywords, getting them the technology placements? (And if so, does Google have a policy for such advertiser abuse?) Or does Google’s contextual targeting actually consider these ads relevant?

Whatever the answer, it gets worse.

Google’s Political Ad Policy

Below: one of the ads in question. Funny, on CDM when we think of protect childrens’ education, we think of expanding funding for teaching music. But worse, it violates Google’s own policies.

We as publishers are Google’s customers. You would think that massive online publicity for this story and widespread complaints from publishes would prompt some sort of response from the company. That hasn’t happened, minus a condescending and inadequate blog post on the Inside AdSense blog explaining how to block ads. (More on why that’s unhelpful in a moment.)

To get any explanation from Google, I had to rely, ironically, on a news article in which I myself was quoted. An unidentified Google spokesperson told the [London] Times Online:

Google allows ads that advocate for particular political position, regardless of the views that they represent. We’re currently allowing ads advocating both for and against Proposition 8.

That statement is based on Google’s published political advertising policy:

We permit political advertisements regardless of the political views they represent. Stating disagreement with or campaigning against a candidate for public office, a political party, or public administration is generally permissible.

There’s just one problem: that’s not the whole policy. Also from Google:

However, political ads must not include accusations or attacks relating to an individual’s personal life, nor can they advocate against a protected group.

Protected group, eh?

Don’t promote violence or advocate against a protected group.

Ad text advocating against any organization, person, or group of people is not permitted.
Advertisements and associated websites may not promote violence or advocate against a protected group. A protected group is distinguished by their:

• Race or ethnic origin
• Color
• National origin
• Religion
• Disability
• Sex
• Age
• Veteran status
• Sexual orientation/Gender identity

Emphasis Google’s. Note the last bullet point.

Supporting Proposition 8 isn’t advocating violence, of course. But it is is “advocating against a protected group” and advocating against “a group of people.” It doesn’t get any more clear-cut than this, Google. There’s no more damning way to advocate against a group of people than to run ad texts explicitly advocating non-equal treatment under the law. And some of these ads went further, suggesting that “group of people,” that “protected group” endangered childrens’ education.

We just elected our first African-American President in America – something that my pro-McCain, Republican-voting friends have said, despite their regrets about the election, really impressed them. If the Web had existed in the 1960s, political advocates might have run ads opposing voting protection for blacks. There’s no question now that such an ad would be advocacy against a group, even if the ad wasn’t explicitly “I don’t like black people.” This is the same issue.

If Google doesn’t follow their own ad policies in this case, there’s no guarantee that we can trust anything Google says about their ad programs. As a publisher, I can’t trust a relationship with any vendor that can’t follow their own policies.

Control for Publishers is Inadequate

A story in Information Week noted that some posters in online forums claim Google’s controls for blocking ads are sufficient. They’re not.

There are two methods for blocking ads on AdSense, and neither one in this case was appropriate or adequate.

Competitive Ad Filter: This filter is designed to allow you to block ads from competitive sites. In this case, it failed on a number of levels.

• You need to know what you’re blocking. It’s called a competitive filter for a reason – the assumption is that you know in advance what ads you don’t want to appear. In this case, we didn’t expect ads from “protectmarriage.com.”
• It’s domain-specific: If we did succeed in blocking these ads, the Prop 8 supporters could simply point to a differen domain and get around the block.
• There’s no way to review ads: I relied on readers in California to even know the Prop 8 ads were running in the first place. I was fortunate those readers gave me the benefit of the doubt and that they responded so quickly.
• The ad filter isn’t real-time: Google’s own blog post concedes that it can take several hours for the filter to take effect. That’s truly unacceptable, because other changes like what the ad code looks like are immediate. And in this case, the day before an election, we couldn’t afford to wait several hours. My own true recourse was to shut off Google Ads entirely. Now I’m finding it difficult to switch it back on.

Ad Review Center: This sounds promising at first. But it’s off by default, it can be necessary to automatically approve ads for ad auctions to work properly, and most importantly, it doesn’t actually have anything to do with contextual ads. The Ad Review Center is exclusively for placement-targeted advertising; that is, ads placed specifically on your site by advertising. The Prop 8 supporters used contextual advertising, based on keywords. So this is really entirely irrelevant.

The Prop 8 Ad Debacle: Failure on Every Level

The Proposition 8 ads that appeared were a failure on a number of levels. For those of you keeping score at home:

• The ads weren’t relevant. While the ads appear to have been geo-targeted, AdSense promises ads relevant to content. I don’t want ads for plumbing contractors in Rhode Island, even if you’re reading there, because I want content-relevant ads.
• Publishers lost money. Because the ads were irrelevant and offensive to many readers, publishers on all kinds of blogs reported suddenly-plunging click-through revenue. That may not mean much to small sites, at least in one day. But the loss on bigger sites must have been pretty painful. (And ironically, this means Google didn’t make as much, either!)
• It wasn’t a fluke. Ads were delivered in large quantities to this site, and to many others. Tech sites may even have been targeted specifically; ads ran on Slashdot and Techcrunch.
• The ads violated Google’s own political policy. If this doesn’t count as advocating against a group based on sexual preference, nothing does. So either Google broke their own policy, or their own policy is meaningless. And it’s clear Google left the ads in the network days after the issue appeared, so they can’t plead ignorance – even less so given that they use their editorial review as a selling point for the service.
• Publishers couldn’t do anything once the ads were placed. Not only did we find out the ads were running the hard way, but we had no real-time ability to block the ads – and they were, by definition, time-sensitive. The way to block the ads effectively? Disable Google Ads.
• Google doesn’t have a support outlet. While there’s an informal discussion group, there isn’t a clear, formal way for publishers to complain to Google.
• Google was completely unresponsive. Again, we’re Google’s customers. Days later, we’ve still heard nothing from Google officially, other than a thinly-veiled, defensive blog post explaining their (inadequate) blocking mechanism without mentioning the issue by name, and some faceless statements in the press that we could have copied and pasted from their FAQ.

We Need a More Perfect Web

I’d like to see several things come out of this mess.

I hope that we start to have a real debate about advertising policy. The issues here were to me pretty clear-cut, but advertising policy in general deals with all kinds of tough issues. It’s time to start talking about that as publishers and advertisers alike.

I hope that we get some response from Google. We need to know what actually happened and why. And, frankly, I would need a significantly expanded toolset for publisher control before ever considering running AdSense on my site again.

But I also hope we see more competition in the marketplace. There are various similar services, but in my experience they often don’t have enough ad inventory to be relevant on a site like CDM. That’s too bad. I think Google might have performed better here if they themselves faced more vibrant competition, and I think the whole ad market might improve, too. There are huge opportunities for advertisers online in these kind of sites, and the economic downturn means it’s even more important to make those solutions work better. I know Microsoft and Yahoo are readying services. I look forward to seeing them.

This was, on every level, a complete mess. But now that the issue is out in the open, the end result could be better advertising systems – if the advertising vendors actually pay attention, and respond.

Just as importantly, this debacle could also mean a new climate in which discriminatory ads aren’t tolerated. Publishers are dropping AdSense left and right, and they should. This violated Google’s principles and policy, and many of us believe it’s wrong to run ads that discriminate against a group of people.

There’s no question this is an important issue for musicians. Amidst all the hype about projects from the likes of Nine Inch Nails and Radiohead has been the assumption that our own sites, and community sites we depend on, will be supported by ads. That means that what impacts ads impacts us.

If you believe the future of the Web is bright, then you must also believe that we can all do better.

Related:

Google caught up in row over gay marriage vote [Times Online]

Google Instructs AdSense Publishers How To Block Its Ads [Information Week]

Previously:

Google Ads Disabled; Your Partner is Your Business

Ross Johnson of PR firm Strick and Company contacted me this week to say BanPiracy had responded to my challenge and, presumably, various criticisms these tactics have attracted. (Paris Hilton and Halliburton have turned to his firm, which is known for defending companies in crisis.) Ross writes:

“As a big fan of the lively discussions on your user forums relating to BanPiracy, I have encouraged my client to respond to your challenge recently posted.”

The response is titled “BanPiracy Says Thanks to the Brave Ones on Its Anniversary!” and was sent to various media outlets. Now, I’m likewise a fan of lively debate, so I want to thank Ross for encouraging BanPiracy to join the discussion.

But the answer to my challenge, evidently, is no, they can’t demonstrate that they have any other developers onboard. They even acknowledge that the fact that they’re a for-profit endeavor might “be a tough sell.” They manage to copy and paste supportive comments from a trade group and an anti-piracy manufacturer, but take those quotes out of context (including, bizarrely, a comment left here on CDM by one of our own contributors — he has a few, ahem, words for BanPiracy in comments now that they’ve distorted what he said).

Here’s the full response, penned by Tomer Elbaz and Michael T. David, COO and CEO respectively. I’ll say this: couched in epic battle terminology, it isn’t PR speak:

It’s been a year since BanPiracy, a company devoted to stopping piracy in the audio software industry, was formed. This is our report card to you, our cohorts in an industry that we love, but one that is also in serious trouble.

Has it been lonely walking the walk as one of the only groups willing to enforce copyright protection for our clients? Absolutely. Do we wish we had more support from audio software developers who are getting their software “cracked” and are afraid to stand up for their rights as businessmen? Most definitely. Are we going to stay the course in our battle with pirates who abuse international copyright protections? Bet on it!

This past year has been one of lessons learned. We learned to accept the harsh reality that the way our company was structured — as a for-profit LLC which gets its operating income from the collection of fees from those who are unjustly enriching themselves by using unauthorized software – might be a tough sell to manufacturers accustomed to looking the other way when their copyrights were violated. We learned that those who’ve come to depend on “cracked” software see their illegal activity as an unalienable right to exploit the efforts of talented professionals who labored to author that software.

And we’ve learned that there are brave people that will not be cowed by the noise of the rabble who want to take what’s not legally theirs.

It is a tribute to our industry that it supports such ethical publications as Pro Sound News and its European counterpart, Pro Sound News Europe. Both publications in mid-November published extensively-researched stories about our enforcement efforts. The writers of these stories were not afraid to take their shots at what they perceived as our shortcomings, but they bent over backwards to get both sides of the story, and we at BanPiracy acknowledge their professionalism.

In a Pro Sound News story written by Christopher Walsh, Andrew Kirk of PACE Anti-Piracy Inc., the developer of the ILok and InterLok tools, noted the uneven history of audio software manufacturers fighting the pirates, and noted:

“BanPiracy has a noble goal,” and added that the audio software markets “do need some enforcement – think about a society in where there was no enforcement of law.”

Another of our counterparts in the anti-piracy campaign is Ray Williams, director of the International Music Software Trade Association. We salute Mr. Williams for his efforts, which were heralded in the Pro Sound News story. “Our whole reason for being,” Mr. Williams told PSN, “is to try to have musicians respect the work of the companies who supply their software tools the same way they respect the makers of their hardware tools.”

We at BanPiracy also welcome the voluminous opinions on Internet message boards about out campaign. One of the most interesting challenges to what we’re doing was posted on Peter Kirn’s Create Digital Music website. In referring to the only client we’ve been able to sign for BanPiracy, Waves Audio, Mr. Kirn wrote, “Waves, I put the challenge to you: either demonstrate you have other developers onboard with you, or stop trying to convince people this is an effort on behalf of the industry.”

Mr. Kirn’s theory is that until Waves Audio, the initial client of BanPiracy, is joined by other software developers, any effort by Waves Audio to promote its involvement in BanPiracy is NOT a legitimate effort on behalf of the audio software industry.

A note to Mr. Kirn: The clients of BanPiracy are not asking your permission, or anyone else’s, to stand up to audio software copyright infringers. BanPiracy hopes that others will join Waves Audio in this fight, but the fight will go on as long as there is one man or woman willing to stand shoulder to shoulder with the likes of Adrian Anders, who posted the following in a user forum on Mr. Kirn’s website on November 14, 2007.

“I think the studio owners were being very irresponsible to their paying customers,” Mr. Anders wrote in response to the many proponents of “cracked” software who frequent Mr. Kirn’s website.

Mr. Anders then added:
“Cracked software often causes severe problems in DAW environments and may even contain trojans, viruses, and/or worms that could compromise the data of their clients. Beyond the moral obligation to buy the software they use, [the studio owners] violated the trust of their customers by having potentially damaging software on their machines.”

Count on this, Mr. Anders: You’re not alone in this fight.

By Tomer Elbaz, BanPiracy COO and Michael T. David, BanPiracy CEO, Nov. 20,2007

CDM Responds

Since the cards are out on the table, and this site is singled out several times in BanPiracy’s public statement, I think a brief response of my own is only appropriate.

First, let’s get one thing straight: criticizing a specific means of enforcement is not the same thing as advocating piracy. BanPiracy’s statement attempts to blur those lines, implying an “if you’re not with us, you’re with the pirates” mentality. That’s ridiculous. The real debate here is over BanPiracy’s enforcement tactics and their rhetoric, not whether piracy is a good idea. CDM has been an aggressive advocate of legitimate software use, including commercial software, freeware, and open source tools. BanPiracy is quick to mention “the many proponents of ‘cracked’ software who frequent Mr. Kirn’s website.” Let’s address that as what it is: an attempt to discredit this site. The comments are an open forum. People looking for legitimate software look to CDM; people looking for pirated software elsewhere. I’m happy to let cracked software advocates speak freely here because they are so quickly shot down by users who pay for what they use.

Also, I never said BanPiracy needed my “permission” to pursue legal action — as near as I can tell, this action is within the law and within their rights, as is the ability of the targeted studios to try to defend themselves. But BanPiracy claims in bold type on their website that they represent multiple clients — and yet they admit elsewhere that, in fact, Waves is their only client. Even in this statement, I see a mention of “clients” (plural) and “client” (Waves). The question is not whether BanPiracy can represent Waves’ interests. The question is why does BanPiracy continue to refer to multiple clients and the industry when they in fact represent only the interests of Waves?

In addition to representing Waves, BanPiracy represents its own interests: by their own admission, they stand to make money here. The recent wave of 11 suits in the United States totals $1.7 million in damages, according to one of the Pro Sound News stories cited by BanPiracy. Those lawsuits are based entirely on Waves’ products. No other developer is mentioned. Updated: Pro Sound News Europe estimates damages at $4 million dollars and goes into greater detail on the US litigation.

The Music Software Industry

Now, maybe BanPiracy can claim to represent broader interests, even if they can only demonstrate one client. BanPiracy does manage to find supportive comments from a trade group and anti-piracy product maker, though they lift those comments from a Pro Sound News story from earlier this month. The headlines is “PACE, IMSTA Support BanPiracy.” Andrew Kirk of PACE Anti-Piracy, maker of the iLok and Interlok systems, in fact says some supportive things in that story. Here’s the quote you don’t see copied in the BanPiracy statement, however:

Kirk agrees that “Education will be key,” adding that lawsuits are not market friendly, nor do they fit well into a business model, yet “In some cases, the law is the last resort to flagrant piracy.” The anti-piracy movement is working, says Kirk, evidenced by the 123rd AES Convention. “I can tell you” he asserts, “if piracy rates were equal to the level of seven or more years ago, more than a handful of pro audio software companies and their products would simply not be at AES, nor would they even exist. Just about anyone would agree that this would be detrimental to the market.

So, lawsuits can be damaging to the market, often don’t make business sense, and may be a “last resort.” Oh, and other non-piracy efforts are actually working. That’s an argument I would’ve made, except PACE just made it for me.

BanPiracy also conveniently edits the International Music Software Trade Association quote. If you read the original Pro Sound News story, the group’s director Ray Williams is clear that — unlike the music industry’s RIAA — IMSTA focuses on education, not enforcement. Williams told PSN: “At IMSTA we are focused purely on education and making musicians think about piracy. We want musicians to buy the software they use.” In fact, when the IMSTA launched a recent anti-piracy education campaign, the emphasis was on positive communication with musicians, not litigation and scare tactics. So IMSTA may be “sympathetic”, but if at some point they do decide to openly support BanPiracy, in my view they’ll compromise the very positive image they had worked hard to build. (In fact, I’m disappointed Williams didn’t take this opportunity to more clearly distance what IMSTA is doing from what BanPiracy is doing.)

Cakewalk’s founder and CEO Greg Hendershott is on the Executive Board for the IMSTA. He spoke to us this summer about the cusomer relationship, among other issues. He talked about how piracy has hurt Cakewalk, but defended their decision not to use additional copy protection methods. Whether or not that particular decision is right for every developer, I think Greg speaks really eloquently about the customer relationship in a way that’s very appropriate to this conversation:

“But that doesn’t mean we like people to copy the software. It really comes down to the culture around intellectual property, and establishing your relationship with customers that is about more than just them buying the product, where they can get good support, there is a good community, a good forum for them to interact with you and other customers. So I think if people are buying into a long-term relationship, that’s part of the key to dealing with that issue. And I notice customers really tend to think that way.”

I’m not sure BanPiracy is aware when they quote Adrian Anders that Adrian regularly contributes to CDM, and does a series on free and inexpensive software. Adrian’s extensive knowledge is proof that saying you don’t have enough money is not an excuse for piracy: you can put together an entire software studio using free and affordable software. Adrian is quoted by BanPiracy as follows:

“Cracked software often causes severe problems in DAW environments and may even contain trojans, viruses, and/or worms that could compromise the data of their clients. Beyond the moral obligation to buy the software they use, [the studio owners] violated the trust of their customers by having potentially damaging software on their machines.”

Count on this, Mr. Anders: You’re not alone in this fight.

No, Adrian, you’re not alone — I agree with every word you say. But BanPiracy misappropriated the quote. Adrian wasn’t responding to any commenters at all. He was the first comment, criticizing (rightfully) a studio behaving unprofessionally. In fact, quite a few commenters criticized the studio in that very thread. Many other comments came from paying customers, some of them paying Waves customers — again, not pirates. Many paying customers explicitly said they would spend money on products that compete with Waves’ software. (note: NOT pirate Waves software, BUY someone else’s.) Most importantly, BanPiracy appropriated Adrian’s comment in a forum, distorted the context, changed his meaning, and then used it to support their cause without his permission. Then they sent that out as an “official statement”, evidently on the urging of their PR firm.

So, keeping score, BanPiracy has misrepresented which clients they represent, they’ve misrepresented what I said, and they misrepresented the readers and comments on this site.

I do hope we’ll talk more about finding solutions to piracy. But this really comes down to how to support making great software by legitimate means, whether that’s open source and free business models or commercial models. And that really starts with users and customers. It’s a conversation we’ll continue to have here, for those willing to read it. I hope readers will continue to agree and argue with what I say here; that’s the point. But it does mean you will have to actually read.

Related:
BanPiracy Puts Controversial Plans in Motion [Pro Sound News, 11/15]
PACE, IMSTA Support BanPiracy [Pro Sound News, 11/15]
Waves versus cracks: first writs issued in LA [Pro Sound News Europe, 11/14 - includes more details on the damages sought and funding]
BanPiracy Responds: Offical statement released to the forums [Sonic State, 11/21]
BanPiracy.org

Note that the Pro Sound News Europe story suggests BanPiracy might find clients beyond Waves:

“We are in active discussion with a number of companies we met at the AES Convention,” [CEO Michael T.] David concludes, “including software developers.”

Assuming they haven’t been turned off by BanPiracy’s statements, I’m sure any future client would be able to look forward to the same positive reaction from their customer base Waves has gotten.

Previously:
Studio Busted by Waves Anti-Piracy Police Shares Experience [CDM, 11/14]
Interview: Cakewalk Founder Greg Hendershott, 20 Years On [CDM, 11/12]

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