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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Glazier’s argument:

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

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

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

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

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

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

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

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

Stop the Internet Blacklist Legislation [EFF]

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

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

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

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

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

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

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

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

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

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

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

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

I’m late in posting this, but it’s too good to pass up – our friend Troels Folmann sends us his latest sound design experiment, this time with bees.

Better audio:
Bees by Tonehammer

Specs:

• 200-230 wing flaps per second (hence the tone)
• Top speed: 15 mph.
• Compound eyes with thousands of tiny lenses plus simple eyes.
• A life form with 20,000 known species, on which human life depends
• Availability: with our protection, a long, long time. Without, we’re toast.

There’s also a free bee sample set for use with Kontakt or (via WAV) any other tool. [Download link, .rar ]

We’d love to hear music you make with those samples. If you compose something, send them to us in comments!

Lots of additional info:
Music Made with Bees [tonehammer]

Bee populations are in decline, which is a deep concern. Happily, at least one culprit has been ruled out: research suggests mobile phones are not to blame after all.

The New York Times has a good recent article on bees, why they’re so important to human life and agriculture, the disturbing rapid decline in their population, and a breakthrough that’s occurred in the last week. The news isn’t good: colony collapse, and it may be linked to a combination fungus/virus. Hopefully this new evidence will lead to a solution.
Trouble in the Hive, by Kirk Johnson for the NY Times

You can support bee research here: http://www.helpthehoneybees.com/

(In this case, surprisingly, academia teamed up with the US Army chemical and biological research group. It’s nice to see a non-destructive military application of chemicals and biology.)

The connection to sound, though, is clear to me: just as photographs or video can help us get closer to subjects that matter, so can sound and music. They’re another way of experiencing our world. So send in that bee music.

An ASCAP Political Action Committee fundraising letter that seeks to vilify advocacy positions of organizations like Creative Commons has been circulating the Web. As I noted in a separate story, it’s not exactly news that ASCAP has taken issue with the licenses Creative Commons advocates. Now, however, ASCAP’s legislative advocacy arm also argues in the letter that the advocacy organization Electronic Frontier Foundation is also an enemy of artists getting paid. The EFF hasn’t made a public statement about the issue, but in a response to CDM, an EFF spokeperson says the letter “mischaracterizes” her organization.

“They imply in that letter that the EFF don’t want artists to get paid for their work,” says Rebecca Jeschke, EFF spokesperson. “For years, we’ve had a proposal for Voluntary Collective Licensing,” she says, a scheme by which users of file sharing services could contribute to funds for artists. She says the EFF has been working on the issue since 2003. “We’re interested in making sure that there’s a balance, that copyright respects the rights of the creators but also innovators and speakers, and that [the doctrine of] fair use rights [a provision of US Copyright Law] are respected.”

For more on EFF’s proposals on voluntary collective licensing, see the organization’s 2008 white paper. Ironically, the proposal explicitly cites ASCAP and similar organizations as their model for how file sharing collections could work:
A Better Way Forward: Voluntary Collective Licensing of Music File Sharing

The Precedent: Broadcast Radio
It has been done before.

By voluntarily creating collecting societies like ASCAP, BMI and SESAC, songwriters brought broadcast radio in from the copyright cold in the first half of the 20th century.

What would cause ASCAP to lash out at EFF in the first place? While the EFF advocates on a number of issues unrelated to ASCAP, including privacy, government transparency, and free speech, it conflicts with some ASCAP positions in some of its recent intellectual property work. For instance, in regards to the case of United States of America versus ASCAP, EFF has criticized ASCAP in court battles over whether mobile phone ringtones should be licensed as performances, and thus subject to performing royalty collections. In legal analysis on EFF’s website last year, intellectual property lawyer Fred von Lohmann described ASCAP in harsh terms:

ASCAP (the same folks who went after Girl Scouts for singing around a campfire) appears to believe that every time your musical ringtone rings in public, you’re violating copyright law by “publicly performing” it without a license. This will doubtless come as a shock to the millions of Americans who have legitimately purchased musical ringtones, contributing millions to the music industry’s bottom line. Are we each liable for statutory damages (say, $80,000) if we forget to silence our phones in a restaurant?

ASCAP Wants To Be Paid When Your Phone Rings [EFF Deeplinks]

There’s no evidence I could find that any EFF position is advocating that music “should be free,” and ASCAP isn’t clear in the letter about either what EFF policies it opposes, or even what the legislative agenda ASCAP themselves are advocating – and for which they want money. ASCAP’s legislative site is also vague, with a link to a legislative timeline that’s now 12 years out of date, before the popularity of MP3s, Napster, iTunes, iPods, and so on. Legislative recommendations made in March to the US government range from the finer points of international trade policy and enforcement in countries of China to ASCAP talking about their anti-piracy mascot for 10-17-year-old kids, skateboard-wielding “Donny the Downloader.”

ASCAP had not yet responded to CDM’s request for comment; I will follow up with them. ASCAP does, however, have a record of a advocating tougher intellectual property enforcement, including harsher penalties and monitoring.

EFF policy is clearer, however: mandatory monitoring and penalties for Internet Service Providers and mass lawsuits don’t work, says Jeschke. And, she says, that means they also don’t work for artists. “The way, for example, the RIAA has [litigated] in the name of protecting copyright hasn’t really gotten anybody paid. They gave up their lawsuit scheme. The lawsuit campaign just kept going but file sharing continued unabated.”

The EFF is arguing Wednesday in federal court against mass lawsuits. Despite the fact that the music industry dropped the approach, filmmakers of movies like “The Hurt Locker” are now going the same route:
EFF Argues Against Mass Copyright Infringement Lawsuits in Wednesday Hearing: Predatory Suits Improperly Lump Thousands of Defendants Together

Monitoring ISPs and blocking peer-to-peer file sharing, as a recent call from a number of advocacy organizations including ASCAP advocates, is also problematic, she says. When it comes to ISP monitoring, “There are clearly privacy implications for lots of people, in addition to price implications, if ISPs need to step up their enforcement.” Even worse, she says, are policies that would take away users’ Internet access if they are deemed guilty of infringement. “Most of these three strikes policies are three accusations — not three trials where you’re found guilty of infringement. People get caught in that dragnet all the time. Taking away someone’s internet access is a really big thing, and it shouldn’t happen based on three strikes.”

Since even Jeschke acknowledges that music file sharing continues, though, what about artist income? If enforcement isn’t the answer, what is? Voluntary collective licensing is still the EFF’s prescription, says Jeschke. “There will always be some new technology,” she says. “Instead of trying to put fingers in the dam and styming innovation, we need to find ways of getting artists paid.”

In doing so, though, so long as ASCAP sees the EFF as “Copyleft” advocates who only want “free music,” and EFF analysts see ASCAP as the organization confronting Girl Scouts, it’s hard to see these two organizations collaborating on solutions any time soon.

An ASCAP legislative fundraising letter revealed last week that the American performing rights organization is invoking fears of the Electronic Frontier Foundation, Public Knowledge, and Creative Commons in order to raise money. ASCAP appears to be repeating, now in the more heated language of fundraising, arguments it has had with the Creative Commons license in the past. For its part, Creative Commons insists most of its licenses don’t preclude performing rights bodies like ASCAP from collecting funds.

In the letter, sent on behalf of ASCAP’s Political Action Committee (PAC), the ASCAP Legislative Fund for the Arts, the PAC argues to its members that that these organizations undermine the value of music:

Many forces including Creative Commons, Public Knowledge, Electronic Frontier Foundation and technology companies with deep pockets are mobilizing to promote “Copyleft” in order to undermine our “Copyright.” They say they are advocates of consumer rights, but the truth in these groups simply do not want to pay for the use of our music. Their mission is to spread the word that our music should be free.

This is why your help now is vital. We fear that our opponents are influencing Congress against the interests of music creators. If their views are allowed to gain strength, music creators will find it harder and harder to make a living as traditional media shifts to online and wireless services. We all know what will happen next: the music will dry up, and the ultimate loser will be the music consumer.

Attacks on Creative Commons by ASCAP are nothing new. The organization argued in a 2007 essay (and subsequent report) that elements of the license, which is applied to copyrighted works, meant “artists should give up all or some of their rights.” As noted in a rebuttal by Creative Commons’ Laurence Lessig, some of those claims were incorrect. Among other items, ASCAP said that the “licenses ask creators to waive the ability to collect royalties,” which isn’t true of the non-commercial CC licenses.

The claims in the fundraising letter were more bluntly inaccurate. Creative Commons’ licenses are all built on copyright, and as non-exclusive licenses, they do not in any way prevent artists from being paid for music. They don’t even, as the organization observed three years ago, preclude ASCAP license collection – at least not on works licensed with the non-commercial provision.

Creative Commons licenses do reserve fewer rights for the creator, by definition. All the licenses currently in use include provisions to allow works to be freely distributed via peer-to-peer file services, and depending on the license chosen, may open up other possibilities for use and remixing. But nowhere does the letter acknowledge that an artist must choose to license their work; unlike Copyright, CC licenses are not automatic, nor is the CC organization advocating that they should be. Creative Commons spokespeople have previously told CDM that they aren’t even suggesting that CC licenses are the right choice for everyone in every circumstance. As advocates of their own license, on the other hand, they have explicitly said that their hope is that the license will help artists make money, not that all music “should be free.”

The blog ZeroPaid covered the initial controversy and criticized ASCAP’s take on Creative Commons as an attack on creator choice:

Creative Commons is a middle-of-the-road approach when it comes to copyright and enables creators to tell consumers, in plain language, what they can and cannot do with their content. In short, it’s an option for artists. Any attack on Creative Commons is an attack on an artists right to choose what they feel is appropriate for their chosen distribution channel.

ASCAP Declares War on Free Culture

Creative Commons responded on the same site:
Creative Commons Responds to ASCAP

Additional coverage:
ASCAP Claiming That Creative Commons Must Be Stopped; Apparently They Don’t Actually Believe In Artist Freedom [Techdirt]

ArtsJournal blog Mind the Gap observes that the fictional characters on Glee are in conflict with current US Copyright Law, and expresses surprise that the black-and-white claims of ASCAP’s fundraising letter would target the EFF, Creative Commons, and Public Knowledge. He asks if any card-carrying, royalty check-cashing ASCAP members would share how they feel, and they do – largely to express frustration with ASCAP.
The Right Balance on Copying [Mind the Gap]

ASCAP membership dues can go toward advocacy; only the ASCAP Foundation is a 501c3 charitable organization; the latter supports education and talent development. I’m curious, then, what royalty-check cashing ASCAP members think of these issues, as well.

Thanks to Jason Phoenix for the tip, and incidentally to my friend Mike Rugnetta, whom I was surprised to see pop up in the stories. (Internet: population, one dozen?)

Sampling and online reuse are enormously common in our culture today. But if you really believe in making some of that culture freely accessible, it follows you must also make free licenses explicit. Simply taking something because it’s there isn’t fair to the person who created the content, whose rights should come first, and it doesn’t help advance the cause of free content. If we want content to be more freely accessible, we need to give first priority to those materials explicitly licensed for free use.

All of that is to say, we need to obey the law. And that’s generally been the goal on CDM.

Here’s the rub: while Creative Commons licenses show a lot of promise, they also have occasionally run up against vague definitions or not-quite-airtight license variants. Case in point: the “non-commercial” restriction commonly used by creators. Let’s say you upload an image to Flickr. Adding a “non-commercial” restriction seems logical enough as a way to protect yourself against your image being abused, right?

The problem is, when looking at the actual language of the license, the definition of non-commercial use is not clear. Here’s what the license says:

“You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. “

Source: the current full text of the license (3.0)

Is CDM’s usage of Flickr images with non-commercial Creative Commons licenses a violation of that license? It’s not entirely clear. While the site uses those images for illustrative purposes, and while the site carries ads from which we gather revenue, it’d be a stretch to say the use of the images themselves was directed toward monetary gain.

Ultimately, though, an ambiguous license isn’t good enough. To be able to use images without contacting photographers for their permission, we need confidence that the license is clear. And even if we were on legally good standing – and it’s unclear that we are – we would want to obey the intentions of the content creators.

The question of commercial status and the Creative Commons license led to a prolonged Twitter discussion between me and Chris Randall of Analog Industries and plug-in maker Audio Damage. Unlike CDM, the Analog Industries blog is copyrighted, not under a Creative Commons license, but Chris has used CC licenses in the past for his music. Chris’ argument was, in short, that CDM was in violation of the CC-NC license as the use constituted a commercial use. The obligation lies with me to prove otherwise, and based on the survey results, I don’t think I can.

I’m not the only person bothered by the ambiguity. Creative Commons has conceded that questions about commercial or non-commercial are some of the most common queries they receive. And the situation was ambiguous enough for CC to undertake a full survey of CC users and creators.

The results of this survey were published in September:
Defining Noncommercial

Read through the complete results, however, and the question of non-commercial status is murkier than ever. The most significant question for publishers (and many content creators) is at what point a site with ads becomes a commercial use. You’ll see the answers can vary wildly depending on how the question is asked, and what the respondent understands to be the usage case.

That said, now having fully read through the results, I think I have to change the policy on CDM. Having some people disagree isn’t good enough, and no matter how you ask the question, a significant number of content creators view sites with ads as commercial – no discussion. (Some even would classify sites by non-profits using ads to recoup hosting costs in this way!)

I’ve found Flickr users have actually been really enthusiastic to discover their work on the site; those are the comments I’ve gotten. Unfortunately, I have to balance that enthusiasm against the larger perception of the policy.

In short, if you’re placing images under an NC license, don’t expect to see them on CDM any more.

New CDM policy

From here on out, I will only make use of images that fit one of the following conditions:

• Creative Commons licenses with BY, SA, or ND restrictions, but not NC
• Public domain images
• Images used as implied (such as press images, etc.)
• Images used by specific permission

Videos are, of course, a different story, as the ability to embed these materials is assumed to mean an implied license, and I’ve never seen otherwise. Likewise, it seems that the use of Flickr tag slideshows and badges containing images – even copyrighted images – does not violate Flickr’s terms of service or the wishes of the copyright holder; this is in essence a view of the Flickr site itself, and should not diminish the value of a photographer’s work nor conflict with their likely intentions when they upload to Flickr.

There’s really no way to operate on the Internet without coming across some of these gray areas, but to me the spirit of the law and the intentions of the creators remains paramount.

How to protect your work without Non-Commercial restrictions

This may raise the question, how do you prevent your work from being exploited while at the same time allowing a site like CDM to republish it? One of the “commercial” uses cited in the survey results is the rather nasty scenario of the spam blog re-purposing stories via RSS. There have been cases of CC-licensed Flickr images being used for ads in bus stops. (See the instance of Virgin’s ads, taken from CC-licensed Flickr images. Note, however, the controversy there – aside from whether they actually complied with the CC licenses – was whether they had the rights to the likenesses of people in those images, which is a different legal area.)

My answer, and the answer on which I’ve settled for CDM’s content: use a ShareAlike license.

What makes ShareAlike unique is that it requires any distribution or repurposing of your content to have the “resulting work only under the same, similar or a compatible license.” That means you couldn’t, say, make an ad out of your photo without placing the ad under the same license — effectively preventing some of the more nefarious uses of CC-licensed works.

I do think that Creative Commons needs to present more explicit, clear, legally-binding documentation for the Non-Commercial restriction in the actual license. But until then, if you’re bothered by this ambiguity, you can resort to the more unambiguous ShareAlike license term.

Note that CDM itself is under a ShareAlike license. Because it’s compatible with any of the other CC SA licenses, that also gives us the right to use SA-licensed content – and, incidentally, were we not licensed that way, we should not have that ability.

HELP US!

To bring CDM into compliance with the non-commercial license, I need your help.

Got some regex skills? A regular expression should be able to purge all the images in CDM’s story database with non-commercial CC licenses, because images link to the specific license used. It’s simply a matter of then pulling the img src, anchor, and image caption div code around that license link.

Get in touch or respond in comments.

Got an image you don’t want to see lost? You can search CDM easily by your name and/or Flickr userid and find your image. Then let us know:

Provide permissions for a CC-NC-licensed image [Google Docs form]

Correction: I can actually observe a number of images I’ve used over the years with links back to CDM from the Flickr pages. So this would actually be the worst possible thing I could do, to remove those images. Obviously, the better solution is to wait and see if someone requests that an archived image be taken down. The Creative Commons license itself is non-revocable, but since this falls into a gray area in which we may not even been in compliance with someone’s license, that’s a moot point. And since those images are clearly marked by license, any derivative work based on them could check first if the license permits derivations. (That’s something you’d have to do anyway, as some images on CDM are copyrighted and used exclusively on CDM by permission.)

As a separate note, I’m now going to go through my own Flickr accounts and remove the non-commercial requirement, because my sense is that ShareAlike will prevent the unlikely event of them being abused within the license terms.

Disclaimer: This story is an editorial, an opinion piece. It does not constitute a legal statement (I’m not a lawyer) or official, binding statement of Create Digital Music’s policy. It expresses only the opinions of its author.

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]