D.R.M.–R.I.P.

The announcement that Apple is eliminating digital rights management controls from its I Tunes service is the final nail in the coffin of technology based solutions to piracy. Every time Apple or Microsoft would roll out a new DRM solution, it would take the hackers in Moscow about 20 hours to crack it and publish the hack. The belief on the part of both the RIAA and the MPAA that some technological magic bullet would be discovered was always a pipe dream.

In contrast to the parlous state of the CD business, the music publishing business is flourishing as never before, because of one simple difference–the mechanical license. Every time you go into a bar or a Gap store that is playing music, they are paying a fee to ASCAP or BMI for that privilege and the songwriter is getting paid. They do a monthly sample on a small percentage of the retail, radio, elevator, Internet and other outlets and divvy up the money. It works.

For the last 16 months I have been quietly suggesting to U.S. Trade representatives that the only solution to the real IP theft problem is some similar content license fee on worldwide broadband service. Assume that some international body like UNESCO was collecting $3 per month per subscriber from AT&T and China Netcom and every other provider. By my calculations that would come to about $1.5 billion a month to be doled out to copyright holders. Needless to say, if you counted in the cellphones running broadband, that figure would double and continue to grow as broadband spreads. Perhaps video downloads might get slightly more than audio, but it would not be hard to sample the world’s networks to see how to divvy up the funds. Companies like Big Champagne already do this.

Piracy is not a trivial issue. I can tell you that no one gets any home video revenue out of Asia or South America, even though millions of DVD players are sold there. We need to accept the reality of online file sharing and stop pretending there is some magic box DRM fix to this problem. Apple’s decision is at least a reality check.

This entry was posted in Business, Economics, Entertainment, Innovation, Movies, Music, Recession, Technology, Television, Trade and tagged , , , , , , . Bookmark the permalink.

417 Responses to D.R.M.–R.I.P.

  1. len says:

    I get the reality check and I understand the DRM issues. Some of us have known it wouldn’t work. On the other hand, it is the accounting that worries me. I am fully aware of how the playlists can be jiggered in radio and are to keep independents from benefitting and to keep the big dollars flowing into the right pockets. So do I trust BMI and ASCAP? Hell no. Do we need them? Something like them at least.

    It’s a good idea, Jon. The Devil is where he usually is: in the numbers and the shreddin’ of the ‘natch.

  2. len says:

    I get the reality check and I understand the DRM issues. Some of us have known it wouldn’t work. On the other hand, it is the accounting that worries me. I am fully aware of how the playlists can be jiggered in radio and are to keep independents from benefitting and to keep the big dollars flowing into the right pockets. So do I trust BMI and ASCAP? Hell no. Do we need them? Something like them at least.

    It’s a good idea, Jon. The Devil is where he usually is: in the numbers and the shreddin’ of the ‘natch.

  3. mockstar says:

    This makes so much sense. Maybe too much.

    But the reality is that not creating and legislating some model to compensate creatives for their work on the web will simply repeat the corporate low-brow/high-budget marketing model.

    One key is to make the rate low enough that everyone will buy in: people that afford high-speed Internet can afford a low monthly rate in exchange for, um, all media ever created. The fee should be low enough that if users don’t pony up, they really deserve to be sued.

    In music, groups like ASCAP and BMI have always paid royalties to artists for public performance (or at least purported to) … and if digital technology is good at anything, it’s counting.

    So essentially, royalties from the pie could be directly correlated to user data: that is, users pay a fee; robot counts how many times someone checked out a song/video/picture/book; divides all uses by the amount of revenue and pays the creatives.

    Finally, it’s pretty clear that this is a legislative issue, maybe one that could be folded into international net neutrality initiatives. One look at the history of the entertainment business — or the current state of American business in general — confirms that we cannot expect self-policing from The Man.

  4. mockstar says:

    This makes so much sense. Maybe too much.

    But the reality is that not creating and legislating some model to compensate creatives for their work on the web will simply repeat the corporate low-brow/high-budget marketing model.

    One key is to make the rate low enough that everyone will buy in: people that afford high-speed Internet can afford a low monthly rate in exchange for, um, all media ever created. The fee should be low enough that if users don’t pony up, they really deserve to be sued.

    In music, groups like ASCAP and BMI have always paid royalties to artists for public performance (or at least purported to) … and if digital technology is good at anything, it’s counting.

    So essentially, royalties from the pie could be directly correlated to user data: that is, users pay a fee; robot counts how many times someone checked out a song/video/picture/book; divides all uses by the amount of revenue and pays the creatives.

    Finally, it’s pretty clear that this is a legislative issue, maybe one that could be folded into international net neutrality initiatives. One look at the history of the entertainment business — or the current state of American business in general — confirms that we cannot expect self-policing from The Man.

  5. Cameron says:

    As long as the money goes to the artist, I don’t mind. But from what I have seen, most of the money goes to paying the middleman parasites instead of the artist or the musicians.

    As for iTunes getting rid of the DRM crap, for me to upgrade all of my albums that I have purchased, it would cost $44. Since I only listen to them on my iPod, it’s not a big thing to me if the DRM is there.

  6. Cameron says:

    As long as the money goes to the artist, I don’t mind. But from what I have seen, most of the money goes to paying the middleman parasites instead of the artist or the musicians.

    As for iTunes getting rid of the DRM crap, for me to upgrade all of my albums that I have purchased, it would cost $44. Since I only listen to them on my iPod, it’s not a big thing to me if the DRM is there.

  7. Armand Asante says:

    I think copyright laws should be abolished altogether.

    Wouldn’t we be better served by this interregnum and financial collapse to get rid of all the “fat”?
    Like, say copyright laws, and businesses selling or renting movies in a box (to everyone but S.America and Asia, apparently).

    I know it must be hard for all those entities that have been collecting copyrights over the years to see their “equity” vanish – but copyright laws should go the way of the dodo in my humble opinion.

    I’m an artist by trade and I get paid for my talent. I can still sell my services. I get paid for time and effort invested.
    I don’t need this silly notion of my ideas being treated as property in order to be paid.

    I know that this would mean the death of entire industries – like Hollywood.
    And I am as sad for them as I am for all those Luddites who saw the mechanical loom erase their trade and source of income in one fell swoop.
    But really, they had to go.
    Not because they were “standing in the way of progress” (or other romantic notions).
    Simply because they had no place in the new technological ecosystem.

    Copyright is simply a way to uphold a business model built around creativity that has no viability in the modern world.

    It’s time to set creativity free from commercial constraints. History will not forgive us if we don’t.

    …and from the ashes something new will be born.

  8. Armand Asante says:

    I think copyright laws should be abolished altogether.

    Wouldn’t we be better served by this interregnum and financial collapse to get rid of all the “fat”?
    Like, say copyright laws, and businesses selling or renting movies in a box (to everyone but S.America and Asia, apparently).

    I know it must be hard for all those entities that have been collecting copyrights over the years to see their “equity” vanish – but copyright laws should go the way of the dodo in my humble opinion.

    I’m an artist by trade and I get paid for my talent. I can still sell my services. I get paid for time and effort invested.
    I don’t need this silly notion of my ideas being treated as property in order to be paid.

    I know that this would mean the death of entire industries – like Hollywood.
    And I am as sad for them as I am for all those Luddites who saw the mechanical loom erase their trade and source of income in one fell swoop.
    But really, they had to go.
    Not because they were “standing in the way of progress” (or other romantic notions).
    Simply because they had no place in the new technological ecosystem.

    Copyright is simply a way to uphold a business model built around creativity that has no viability in the modern world.

    It’s time to set creativity free from commercial constraints. History will not forgive us if we don’t.

    …and from the ashes something new will be born.

  9. Armand Asante says:

    I think copyright laws should be abolished altogether.

    Wouldn’t we be better served by this interregnum and financial collapse to get rid of all the “fat”?
    Like, say copyright laws, and businesses selling or renting movies in a box (to everyone but S.America and Asia, apparently).

    I know it must be hard for all those entities that have been collecting copyrights over the years to see their “equity” vanish – but copyright laws should go the way of the dodo in my humble opinion.

    I’m an artist by trade and I get paid for my talent. I can still sell my services. I get paid for time and effort invested.
    I don’t need this silly notion of my ideas being treated as property in order to be paid.

    I know that this would mean the death of entire industries – like Hollywood.
    And I am as sad for them as I am for all those Luddites who saw the mechanical loom erase their trade and source of income in one fell swoop.
    But really, they had to go.
    Not because they were “standing in the way of progress” (or other romantic notions).
    Simply because they had no place in the new technological ecosystem.

    Copyright is simply a way to uphold a business model built around creativity that has no viability in the modern world.

    It’s time to set creativity free from commercial constraints. History will not forgive us if we don’t.

    …and from the ashes something new will be born.

  10. Clayton says:

    Hmm, I’m reluctant to call this the final nail in the coffin. iTunes is a drop in the bucket of digital media.

  11. Clayton says:

    Hmm, I’m reluctant to call this the final nail in the coffin. iTunes is a drop in the bucket of digital media.

  12. Clayton says:

    Hmm, I’m reluctant to call this the final nail in the coffin. iTunes is a drop in the bucket of digital media.

  13. AMusingFool says:

    A couple of points: JT, you’re painting with too broad a brush when you talk about Asia and South America. Well, the latter I know nothing about, but there are at least two exceptions in Asia: Hong Kong and Japan.

    Like Cameron, I have no problems when the money goes to the artists, but I also don’t think that is often (or at least not sufficiently) the case with the traditional models.

    Another problem with a blanket solution like that is stuff like remixes and fair use. It gets rid of both of those concepts (well, I suppose the former is just an example of the latter, but I think you get my drift).

    I’d also question whether it is necessary. What was the biggest-selling album this year on Amazon’s mp3 store? Nine Inch Nails’ Ghosts I-IV. (Much of?) Which was available for free, directly from the artist. Is piracy really the biggest problem?

    Having said that, I’m very glad that Apple has finally dropped DRM on iTunes. I might buy some music there, now.

    Oh, and Clayton, iTunes sold more music than any other store last year, so it is certainly more than a drop in the bucket (for better and for worse).

  14. AMusingFool says:

    A couple of points: JT, you’re painting with too broad a brush when you talk about Asia and South America. Well, the latter I know nothing about, but there are at least two exceptions in Asia: Hong Kong and Japan.

    Like Cameron, I have no problems when the money goes to the artists, but I also don’t think that is often (or at least not sufficiently) the case with the traditional models.

    Another problem with a blanket solution like that is stuff like remixes and fair use. It gets rid of both of those concepts (well, I suppose the former is just an example of the latter, but I think you get my drift).

    I’d also question whether it is necessary. What was the biggest-selling album this year on Amazon’s mp3 store? Nine Inch Nails’ Ghosts I-IV. (Much of?) Which was available for free, directly from the artist. Is piracy really the biggest problem?

    Having said that, I’m very glad that Apple has finally dropped DRM on iTunes. I might buy some music there, now.

    Oh, and Clayton, iTunes sold more music than any other store last year, so it is certainly more than a drop in the bucket (for better and for worse).

  15. AMusingFool says:

    A couple of points: JT, you’re painting with too broad a brush when you talk about Asia and South America. Well, the latter I know nothing about, but there are at least two exceptions in Asia: Hong Kong and Japan.

    Like Cameron, I have no problems when the money goes to the artists, but I also don’t think that is often (or at least not sufficiently) the case with the traditional models.

    Another problem with a blanket solution like that is stuff like remixes and fair use. It gets rid of both of those concepts (well, I suppose the former is just an example of the latter, but I think you get my drift).

    I’d also question whether it is necessary. What was the biggest-selling album this year on Amazon’s mp3 store? Nine Inch Nails’ Ghosts I-IV. (Much of?) Which was available for free, directly from the artist. Is piracy really the biggest problem?

    Having said that, I’m very glad that Apple has finally dropped DRM on iTunes. I might buy some music there, now.

    Oh, and Clayton, iTunes sold more music than any other store last year, so it is certainly more than a drop in the bucket (for better and for worse).

  16. Anders says:

    Hi,

    I would also not be thrilled with a mandatory fee to the entertainment-industrial complex. If imposed soon, it would beyond doubt be completely unreasonably large.

    There has been one pervasive theme in the campaigns of entertainment executives. That has to deny any benefit of technology to consumers.

    From the disgracefully incompetent “Videotapes is the boston strangler (and will never make any money from them)”, to the criminally destructive “we want drm anywhere, and let’s plot to break the general-purpose computer do disallow any operation (especially copying bits) that we disprove of”.

    As consumers we should insist on breaking the industrial attempts to monopolize culture, but we should not continue to pay the current monopoly fees for the privilege.

    Best
    Anders

    PS http://www.kk.org/thetechnium/archives/2008/01/better_than_fre.php

  17. Anders says:

    Hi,

    I would also not be thrilled with a mandatory fee to the entertainment-industrial complex. If imposed soon, it would beyond doubt be completely unreasonably large.

    There has been one pervasive theme in the campaigns of entertainment executives. That has to deny any benefit of technology to consumers.

    From the disgracefully incompetent “Videotapes is the boston strangler (and will never make any money from them)”, to the criminally destructive “we want drm anywhere, and let’s plot to break the general-purpose computer do disallow any operation (especially copying bits) that we disprove of”.

    As consumers we should insist on breaking the industrial attempts to monopolize culture, but we should not continue to pay the current monopoly fees for the privilege.

    Best
    Anders

    PS http://www.kk.org/thetechnium/archives/2008/01/better_than_fre.php

  18. Anders says:

    Hi,

    I would also not be thrilled with a mandatory fee to the entertainment-industrial complex. If imposed soon, it would beyond doubt be completely unreasonably large.

    There has been one pervasive theme in the campaigns of entertainment executives. That has to deny any benefit of technology to consumers.

    From the disgracefully incompetent “Videotapes is the boston strangler (and will never make any money from them)”, to the criminally destructive “we want drm anywhere, and let’s plot to break the general-purpose computer do disallow any operation (especially copying bits) that we disprove of”.

    As consumers we should insist on breaking the industrial attempts to monopolize culture, but we should not continue to pay the current monopoly fees for the privilege.

    Best
    Anders

    PS http://www.kk.org/thetechnium/archives/2008/01/better_than_fre.php

  19. Idlethought says:

    Would a global license/tax result in all of the regional distribution deals (the reason US users can’t see the BBC iPlayer, the reason UK users can’t see Hulu) vanishing? Or would double-dipping be the order of the day?

    I can’t see the former happening – and the latter Perhaps it’s an opportunity. It might be a good time to investing some thought into how to make a profit from the musical equivalent of click-fraud.

  20. Idlethought says:

    Would a global license/tax result in all of the regional distribution deals (the reason US users can’t see the BBC iPlayer, the reason UK users can’t see Hulu) vanishing? Or would double-dipping be the order of the day?

    I can’t see the former happening – and the latter Perhaps it’s an opportunity. It might be a good time to investing some thought into how to make a profit from the musical equivalent of click-fraud.

  21. Idlethought says:

    Would a global license/tax result in all of the regional distribution deals (the reason US users can’t see the BBC iPlayer, the reason UK users can’t see Hulu) vanishing? Or would double-dipping be the order of the day?

    I can’t see the former happening – and the latter Perhaps it’s an opportunity. It might be a good time to investing some thought into how to make a profit from the musical equivalent of click-fraud.

  22. Tom Wilmot says:

    I don’t know if I’d go as far as Mister Asante, but it does seem that a change is in order. Piracy, bootlegging, knock-off work has existed for quite some time.

    Now, it seems like a lot of the folks who post on here are involved or have been involved in creative professions at some point – and for the most part, I think it’s easy to agree that equity isn’t always the main proponent in the value to work equation.

    It’s one thing to create the work, quite another to distribute it. Digital media makes that easier than ever before, which allows artists and musicians to distribute their material without the necessity of corporations behind them. The Halcyon days of big huge bucks are behind, however, so – more than likely, a re-think on the part of the individual as to why they are in their chosen profession might be in order.

    Have we seen the end of DRM? Probably not. Anyone who’s had to buy some serious software in the past two years, anyone who decided to upgrade to Vista will tell you that license protection/verification is an ongoing issue in the computer age.

    I suppose at one time, you could count on people’s innate honesty. If there is anything about DMR that truly depresses me, it’s the assumption that the customer needs to be treated like a crook.

  23. Tom Wilmot says:

    I don’t know if I’d go as far as Mister Asante, but it does seem that a change is in order. Piracy, bootlegging, knock-off work has existed for quite some time.

    Now, it seems like a lot of the folks who post on here are involved or have been involved in creative professions at some point – and for the most part, I think it’s easy to agree that equity isn’t always the main proponent in the value to work equation.

    It’s one thing to create the work, quite another to distribute it. Digital media makes that easier than ever before, which allows artists and musicians to distribute their material without the necessity of corporations behind them. The Halcyon days of big huge bucks are behind, however, so – more than likely, a re-think on the part of the individual as to why they are in their chosen profession might be in order.

    Have we seen the end of DRM? Probably not. Anyone who’s had to buy some serious software in the past two years, anyone who decided to upgrade to Vista will tell you that license protection/verification is an ongoing issue in the computer age.

    I suppose at one time, you could count on people’s innate honesty. If there is anything about DMR that truly depresses me, it’s the assumption that the customer needs to be treated like a crook.

  24. T Bone Burnett says:

    What does everyone think about this deal between the Authors Guild, the publishers, and Google?

    http://www.authorsguild.org/advocacy/articles/member-alert-google.html

  25. T Bone Burnett says:

    What does everyone think about this deal between the Authors Guild, the publishers, and Google?

    http://www.authorsguild.org/advocacy/articles/member-alert-google.html

  26. Alex Bowles says:

    Cory makes a good point – this is but one nail in the coffin. There are still plenty more that need banging in.

    And the fact that these other ones remain un-banged speaks to the larger point that Anders makes about the virulent hostility of today’s top media executives towards anything less than complete and total domination of the audience’s experience. He’s absolutely right in noting that there seems to be zero regard paid to the pre-existing cultural milieu that generated the languages, preferences, memes, and outlooks that media needs in the same way fire needs oxygen.

    In other words, the heart of the problem is exploitation, and the caustic view that culture is like any other resource – available freely, to be harvested endlessly, with no recompense due to anyone, for anything, ever.

    Operating under this delusion, hardline copyright defenders depend on and take from the cultural commons as though they owned them outright, then respond with violent rage, not to mention accusations of thieving instincts, disrespect for artists, and general moral turpitude when anyone suggests that their creations are not, in fact, 100% private. (This is especially rich when it comes from record company executives.)

    Unlike Armand, I’ve yet to be persuaded that total abolition of copyright is necessary, though I can see how that, as the nuclear option, makes sense if groups like the MPAA continue their open assault on the general public in the name of what’s ‘theirs’.

    Rather, I’d like to see a complete re-conceptualization of copyright law that acknowledges the debt any creator owes to the commons, and ensures that anything released to the public is, to some degree, a form of repayment, and is truly a part of the commons – from the very moment of introduction, instead of the insultingly absurd 5-6 generation lag that the current law proscribes.

    As such, an immediate repayment to the commons would need to include some aspect of actual release – including release from perpetual demands for royalties, insistence on control over any derivative works, and restrictions on how, when, and where audiences choose to direct their attention to the work.

    Currently, all these ‘freedoms’ are available to producers, who can assign them on a voluntary basis through the Creative Commons licensing scheme. But this is a lot like self-regulation, and, when faced by people who are fundamentally hostile to the idea that audiences have any rights whatsoever, they are of limited value. Moreover, they fail to account for the dignity of the commons themselves by implying that giving something back is still optional, and not a requirement for standing as a legitimate member of society.

    So perhaps it’s worth considering the abolition of the all rights reserved standard that empowers the hard-liners in the first place, and the adoption of the CC system as the legal default. After all, it’s the all part that seems like the real monstrosity, as it implies that you can take from the commons by simply taking, while making no demand that something be given back, instead of sold for purely private gain.

    Eliminate that from the discussion, and see if civility can return. Keep that on the table, and the most innovative and progressive efforts will remain subject to veto by those whose business models depend on all take and no give.

    Thoughts?

  27. Alex Bowles says:

    Cory makes a good point – this is but one nail in the coffin. There are still plenty more that need banging in.

    And the fact that these other ones remain un-banged speaks to the larger point that Anders makes about the virulent hostility of today’s top media executives towards anything less than complete and total domination of the audience’s experience. He’s absolutely right in noting that there seems to be zero regard paid to the pre-existing cultural milieu that generated the languages, preferences, memes, and outlooks that media needs in the same way fire needs oxygen.

    In other words, the heart of the problem is exploitation, and the caustic view that culture is like any other resource – available freely, to be harvested endlessly, with no recompense due to anyone, for anything, ever.

    Operating under this delusion, hardline copyright defenders depend on and take from the cultural commons as though they owned them outright, then respond with violent rage, not to mention accusations of thieving instincts, disrespect for artists, and general moral turpitude when anyone suggests that their creations are not, in fact, 100% private. (This is especially rich when it comes from record company executives.)

    Unlike Armand, I’ve yet to be persuaded that total abolition of copyright is necessary, though I can see how that, as the nuclear option, makes sense if groups like the MPAA continue their open assault on the general public in the name of what’s ‘theirs’.

    Rather, I’d like to see a complete re-conceptualization of copyright law that acknowledges the debt any creator owes to the commons, and ensures that anything released to the public is, to some degree, a form of repayment, and is truly a part of the commons – from the very moment of introduction, instead of the insultingly absurd 5-6 generation lag that the current law proscribes.

    As such, an immediate repayment to the commons would need to include some aspect of actual release – including release from perpetual demands for royalties, insistence on control over any derivative works, and restrictions on how, when, and where audiences choose to direct their attention to the work.

    Currently, all these ‘freedoms’ are available to producers, who can assign them on a voluntary basis through the Creative Commons licensing scheme. But this is a lot like self-regulation, and, when faced by people who are fundamentally hostile to the idea that audiences have any rights whatsoever, they are of limited value. Moreover, they fail to account for the dignity of the commons themselves by implying that giving something back is still optional, and not a requirement for standing as a legitimate member of society.

    So perhaps it’s worth considering the abolition of the all rights reserved standard that empowers the hard-liners in the first place, and the adoption of the CC system as the legal default. After all, it’s the all part that seems like the real monstrosity, as it implies that you can take from the commons by simply taking, while making no demand that something be given back, instead of sold for purely private gain.

    Eliminate that from the discussion, and see if civility can return. Keep that on the table, and the most innovative and progressive efforts will remain subject to veto by those whose business models depend on all take and no give.

    Thoughts?

  28. T Bone Burnett says:

    In the future, will rock and roll stars be viewed as robber barons?

    Compare The Beatles’ I Feel Fine with Bobby Parker’s Watch Your Step. Are there not pieces of everything that are stolen, in the current frame?

    It is clear that the overall goal is to find a balance between the individual and the community. To abolish copyright is to abolish private property.

    Generosity is the hallmark of the artist.

  29. T Bone Burnett says:

    In the future, will rock and roll stars be viewed as robber barons?

    Compare The Beatles’ I Feel Fine with Bobby Parker’s Watch Your Step. Are there not pieces of everything that are stolen, in the current frame?

    It is clear that the overall goal is to find a balance between the individual and the community. To abolish copyright is to abolish private property.

    Generosity is the hallmark of the artist.

  30. len says:

    It’s a start, T-Bone. As they say, “I only want a taste”. Google and their like have to understand they aren’t free to burgle. Publishers have to understand they aren’t free to extort.

    Fair dinkum is all one can ask.

  31. len says:

    It’s a start, T-Bone. As they say, “I only want a taste”. Google and their like have to understand they aren’t free to burgle. Publishers have to understand they aren’t free to extort.

    Fair dinkum is all one can ask.

  32. Rachel says:

    The other reason DRM makes no sense is the cost of supporting the technological solution. It’s good for rights owners, but lousy for online retailers.

    For example, if you are running a Windows DRM based downloads service, and you sell tracks for 99c, you have to be prepared for the fact that around 5% of all downloads will, at some time in the first year after they’re downloaded, fail because of DRM. Each of those tracks may cost you a front-of-house support call, which, depending upon where you host that support, will cost between $5 and $20 per call. Since you, as the retailer, keep only a margin of the 99c, you need to sell an awful lot of tracks to make up for the support costs for the failures – especially since you pay the labels for the failures whether or not the end user gets to play them.

    Unless you have a downloads service as part of a broader business strategy (eg a Telco triple-play), it’s close to impossible to make money as a downloads site operator. (Unless you go into ringtones, which are a different matter entirely, and which don’t rely on Windows DRM).

    Apple has been more fortunate with the reliability of its DRM because it controls most of the parts of the distribution channel. Microsoft tried to do it and then shot itself in the foot repudiating its “Plays For Sure” (Not) “standard”.

    Don’t even get me started on the problems deploying COPP protocols with DVD and BluRay media. I run a software company that has to implement this lunacy for some online distributors, and it’s so incredibly poorly thought out it makes me want to scream. I’m making a fortune out of my clients’ misfortunes at having to dance at the whim of studios, but it doesn’t make me feel good.

    The essential problem with software or mechanical protection of digital media is that it can’t allow for the exceptions available under Berne, such as fair use. It’s therefore always going to be viewed by a substantial portion of the community – including the creative community – as inherently unfair.

    I agree with Alex’s suggestion above, that CC makes more sense, but I think it’s unlikely to ever be adopted.

    The irony in all this, of course, is that many large US businesses were built on the back of ripping off foreign owners of intellectual property (eg Charles Dickens). Although it signed the UCC in the 1950’s, which gave some degree of harmonisation with international law, the US didn’t even sign up to the Berne Convention fully until more than a century after its inception, with the Berne Convention Implementation Act of 1988. And now US corporations are urging us all to respect international law, and berating nations such as China.

    Incidentally, I was in Beijing just before Christmas, and the Chinese have swallowed the “IP protection” racket hook line and sinker. The Brits, in particular, are in there offering them all sorts of advice on how to get rich treating their customers badly. There’s a huge banner under the new CCTV building promoting a big conference on copyright law to be held in Beijing next month.

    If there’s anything that makes my blood boil in relation to the DRM debate it’s the way the music industry has chosen to treat the rights of musicians, such that an artist doesn’t get back their rights if the label stops distributing the record (unlike the case in book publishing, where an author can take their book elsewhere if it goes out of print). I always liked Janis Ian’s analysis of record industry contracts, here: http://www.janisian.com/article-internet_debacle.html

    Notwithstanding this, Jon’s analysis of the effectiveness of the mechanical license is astute. If there’s money to be made by creators right now, it’s licensing to businesses rather than end-users, whether those businesses be coffee houses or movie producers. It’s simple to manage, relatively simple to enforce, and requires little to no technology. I am in total agreement that it’s the best way forward, but it’s harder to apply to media, such as films, that aren’t as easy to include in other media forms, or to use as background wallpaper. Nevertheless in the case of music it certainly makes sense.

    Notwithstanding that, the whole history of US treatment of intellectual property rights is so shameful, so full of exploitation, so outrageous in its execution, that I’m emotionally, at least, drawn to Armand Assante’s argument that we should abolish copyright entirely. Intellectually I know there are good reasons for retaining some rewards for creators, but I’m sure whatever is put in place will be gamed by studios, labels and publishers to ensure the creatives are screwed anyway. I’m reminded of an old “snakes and ladders” type diagram explaining the flow of money in The Hollywood Reporter, which we had on our fridge fridge for years. You, the writer, started with the idea for a film, but no matter how you negotiated through the maze of agents, producers, studio heads, stars etc, you always ended up at the last panel, which was “you never see a dime”. Okay, so it was a joke, but there are an awful lot of writers who aren’t laughing.

  33. Rachel says:

    The other reason DRM makes no sense is the cost of supporting the technological solution. It’s good for rights owners, but lousy for online retailers.

    For example, if you are running a Windows DRM based downloads service, and you sell tracks for 99c, you have to be prepared for the fact that around 5% of all downloads will, at some time in the first year after they’re downloaded, fail because of DRM. Each of those tracks may cost you a front-of-house support call, which, depending upon where you host that support, will cost between $5 and $20 per call. Since you, as the retailer, keep only a margin of the 99c, you need to sell an awful lot of tracks to make up for the support costs for the failures – especially since you pay the labels for the failures whether or not the end user gets to play them.

    Unless you have a downloads service as part of a broader business strategy (eg a Telco triple-play), it’s close to impossible to make money as a downloads site operator. (Unless you go into ringtones, which are a different matter entirely, and which don’t rely on Windows DRM).

    Apple has been more fortunate with the reliability of its DRM because it controls most of the parts of the distribution channel. Microsoft tried to do it and then shot itself in the foot repudiating its “Plays For Sure” (Not) “standard”.

    Don’t even get me started on the problems deploying COPP protocols with DVD and BluRay media. I run a software company that has to implement this lunacy for some online distributors, and it’s so incredibly poorly thought out it makes me want to scream. I’m making a fortune out of my clients’ misfortunes at having to dance at the whim of studios, but it doesn’t make me feel good.

    The essential problem with software or mechanical protection of digital media is that it can’t allow for the exceptions available under Berne, such as fair use. It’s therefore always going to be viewed by a substantial portion of the community – including the creative community – as inherently unfair.

    I agree with Alex’s suggestion above, that CC makes more sense, but I think it’s unlikely to ever be adopted.

    The irony in all this, of course, is that many large US businesses were built on the back of ripping off foreign owners of intellectual property (eg Charles Dickens). Although it signed the UCC in the 1950’s, which gave some degree of harmonisation with international law, the US didn’t even sign up to the Berne Convention fully until more than a century after its inception, with the Berne Convention Implementation Act of 1988. And now US corporations are urging us all to respect international law, and berating nations such as China.

    Incidentally, I was in Beijing just before Christmas, and the Chinese have swallowed the “IP protection” racket hook line and sinker. The Brits, in particular, are in there offering them all sorts of advice on how to get rich treating their customers badly. There’s a huge banner under the new CCTV building promoting a big conference on copyright law to be held in Beijing next month.

    If there’s anything that makes my blood boil in relation to the DRM debate it’s the way the music industry has chosen to treat the rights of musicians, such that an artist doesn’t get back their rights if the label stops distributing the record (unlike the case in book publishing, where an author can take their book elsewhere if it goes out of print). I always liked Janis Ian’s analysis of record industry contracts, here: http://www.janisian.com/article-internet_debacle.html

    Notwithstanding this, Jon’s analysis of the effectiveness of the mechanical license is astute. If there’s money to be made by creators right now, it’s licensing to businesses rather than end-users, whether those businesses be coffee houses or movie producers. It’s simple to manage, relatively simple to enforce, and requires little to no technology. I am in total agreement that it’s the best way forward, but it’s harder to apply to media, such as films, that aren’t as easy to include in other media forms, or to use as background wallpaper. Nevertheless in the case of music it certainly makes sense.

    Notwithstanding that, the whole history of US treatment of intellectual property rights is so shameful, so full of exploitation, so outrageous in its execution, that I’m emotionally, at least, drawn to Armand Assante’s argument that we should abolish copyright entirely. Intellectually I know there are good reasons for retaining some rewards for creators, but I’m sure whatever is put in place will be gamed by studios, labels and publishers to ensure the creatives are screwed anyway. I’m reminded of an old “snakes and ladders” type diagram explaining the flow of money in The Hollywood Reporter, which we had on our fridge fridge for years. You, the writer, started with the idea for a film, but no matter how you negotiated through the maze of agents, producers, studio heads, stars etc, you always ended up at the last panel, which was “you never see a dime”. Okay, so it was a joke, but there are an awful lot of writers who aren’t laughing.

  34. Rachel says:

    The other reason DRM makes no sense is the cost of supporting the technological solution. It’s good for rights owners, but lousy for online retailers.

    For example, if you are running a Windows DRM based downloads service, and you sell tracks for 99c, you have to be prepared for the fact that around 5% of all downloads will, at some time in the first year after they’re downloaded, fail because of DRM. Each of those tracks may cost you a front-of-house support call, which, depending upon where you host that support, will cost between $5 and $20 per call. Since you, as the retailer, keep only a margin of the 99c, you need to sell an awful lot of tracks to make up for the support costs for the failures – especially since you pay the labels for the failures whether or not the end user gets to play them.

    Unless you have a downloads service as part of a broader business strategy (eg a Telco triple-play), it’s close to impossible to make money as a downloads site operator. (Unless you go into ringtones, which are a different matter entirely, and which don’t rely on Windows DRM).

    Apple has been more fortunate with the reliability of its DRM because it controls most of the parts of the distribution channel. Microsoft tried to do it and then shot itself in the foot repudiating its “Plays For Sure” (Not) “standard”.

    Don’t even get me started on the problems deploying COPP protocols with DVD and BluRay media. I run a software company that has to implement this lunacy for some online distributors, and it’s so incredibly poorly thought out it makes me want to scream. I’m making a fortune out of my clients’ misfortunes at having to dance at the whim of studios, but it doesn’t make me feel good.

    The essential problem with software or mechanical protection of digital media is that it can’t allow for the exceptions available under Berne, such as fair use. It’s therefore always going to be viewed by a substantial portion of the community – including the creative community – as inherently unfair.

    I agree with Alex’s suggestion above, that CC makes more sense, but I think it’s unlikely to ever be adopted.

    The irony in all this, of course, is that many large US businesses were built on the back of ripping off foreign owners of intellectual property (eg Charles Dickens). Although it signed the UCC in the 1950’s, which gave some degree of harmonisation with international law, the US didn’t even sign up to the Berne Convention fully until more than a century after its inception, with the Berne Convention Implementation Act of 1988. And now US corporations are urging us all to respect international law, and berating nations such as China.

    Incidentally, I was in Beijing just before Christmas, and the Chinese have swallowed the “IP protection” racket hook line and sinker. The Brits, in particular, are in there offering them all sorts of advice on how to get rich treating their customers badly. There’s a huge banner under the new CCTV building promoting a big conference on copyright law to be held in Beijing next month.

    If there’s anything that makes my blood boil in relation to the DRM debate it’s the way the music industry has chosen to treat the rights of musicians, such that an artist doesn’t get back their rights if the label stops distributing the record (unlike the case in book publishing, where an author can take their book elsewhere if it goes out of print). I always liked Janis Ian’s analysis of record industry contracts, here: http://www.janisian.com/article-internet_debacle.html

    Notwithstanding this, Jon’s analysis of the effectiveness of the mechanical license is astute. If there’s money to be made by creators right now, it’s licensing to businesses rather than end-users, whether those businesses be coffee houses or movie producers. It’s simple to manage, relatively simple to enforce, and requires little to no technology. I am in total agreement that it’s the best way forward, but it’s harder to apply to media, such as films, that aren’t as easy to include in other media forms, or to use as background wallpaper. Nevertheless in the case of music it certainly makes sense.

    Notwithstanding that, the whole history of US treatment of intellectual property rights is so shameful, so full of exploitation, so outrageous in its execution, that I’m emotionally, at least, drawn to Armand Assante’s argument that we should abolish copyright entirely. Intellectually I know there are good reasons for retaining some rewards for creators, but I’m sure whatever is put in place will be gamed by studios, labels and publishers to ensure the creatives are screwed anyway. I’m reminded of an old “snakes and ladders” type diagram explaining the flow of money in The Hollywood Reporter, which we had on our fridge fridge for years. You, the writer, started with the idea for a film, but no matter how you negotiated through the maze of agents, producers, studio heads, stars etc, you always ended up at the last panel, which was “you never see a dime”. Okay, so it was a joke, but there are an awful lot of writers who aren’t laughing.

  35. AMusingFool says:

    Alex, I very strongly agree with what you said about creators acknowledging the debt to the commons; after all, those commons created the situation in which the artist was able to create, even if it was misery at what that commons was that provided the impetus.

    My personal thought on the best way to handle it, is to require copyright registration again. That registration would be free (or very nearly so) for the first 20 or so years. After that, the cost to renew would increase on exponentially. So everything would, eventually, slip into the public domain.

    But, if something were extremely profitable, while it could remain protected by copyright for many years, the public would be getting “rent” for giving up on free access. And, like I said, they would eventually get that free access.

    It also has the advantage of obscure things being freed almost immediately from copyright.

  36. AMusingFool says:

    Alex, I very strongly agree with what you said about creators acknowledging the debt to the commons; after all, those commons created the situation in which the artist was able to create, even if it was misery at what that commons was that provided the impetus.

    My personal thought on the best way to handle it, is to require copyright registration again. That registration would be free (or very nearly so) for the first 20 or so years. After that, the cost to renew would increase on exponentially. So everything would, eventually, slip into the public domain.

    But, if something were extremely profitable, while it could remain protected by copyright for many years, the public would be getting “rent” for giving up on free access. And, like I said, they would eventually get that free access.

    It also has the advantage of obscure things being freed almost immediately from copyright.

  37. AMusingFool says:

    Alex, I very strongly agree with what you said about creators acknowledging the debt to the commons; after all, those commons created the situation in which the artist was able to create, even if it was misery at what that commons was that provided the impetus.

    My personal thought on the best way to handle it, is to require copyright registration again. That registration would be free (or very nearly so) for the first 20 or so years. After that, the cost to renew would increase on exponentially. So everything would, eventually, slip into the public domain.

    But, if something were extremely profitable, while it could remain protected by copyright for many years, the public would be getting “rent” for giving up on free access. And, like I said, they would eventually get that free access.

    It also has the advantage of obscure things being freed almost immediately from copyright.

  38. Rachel says:

    T-Bone, the Google/Authors Guild settlement contains arguments that are similar to Jon’s “mechanical copyright” argument.

    Far more interesting for most of us — and the ambitious part of our proposal — is the prospect for future revenues. Rightsholders will receive a share of revenues from institutional subscriptions to the collection of books made available through Google Book Search under the settlement, as well as from sales of online consumer access to the books. They will also be paid for printouts at public libraries, as well as for other uses.

    I do have a nervousness about the flow on effect of the decision upon writers of niche works, because we haven’t reconstructed territorial licensing yet – and this is essential to make IP licensing work on the Web. The right that authors currently have to sell their books in different markets could be impacted, because publishers may not think they are actually able to buy the rights the author is claiming that they have. How can you sell exclusive North American rights (or exclusive electronic rights) if Google is making copies available online?

    As a writer it’s hard to get any respect if you can’t get a publisher to take on your work.

    So, in general I think the deal is positive, because it conforms to the kind of model Jon is advocating. But there’s still a lot of work to be done dealing with the way that territorial licensing and recognition of new writers works before the bugs will be out of the system.

  39. Rachel says:

    T-Bone, the Google/Authors Guild settlement contains arguments that are similar to Jon’s “mechanical copyright” argument.

    Far more interesting for most of us — and the ambitious part of our proposal — is the prospect for future revenues. Rightsholders will receive a share of revenues from institutional subscriptions to the collection of books made available through Google Book Search under the settlement, as well as from sales of online consumer access to the books. They will also be paid for printouts at public libraries, as well as for other uses.

    I do have a nervousness about the flow on effect of the decision upon writers of niche works, because we haven’t reconstructed territorial licensing yet – and this is essential to make IP licensing work on the Web. The right that authors currently have to sell their books in different markets could be impacted, because publishers may not think they are actually able to buy the rights the author is claiming that they have. How can you sell exclusive North American rights (or exclusive electronic rights) if Google is making copies available online?

    As a writer it’s hard to get any respect if you can’t get a publisher to take on your work.

    So, in general I think the deal is positive, because it conforms to the kind of model Jon is advocating. But there’s still a lot of work to be done dealing with the way that territorial licensing and recognition of new writers works before the bugs will be out of the system.

  40. Espenia Hallowe says:

    A very interesting issue indeed.

    I’m interested to hear peoples opinions on this point. What makes one type of creator any more socially deserving of repeating income over time (copyright protection) than another?

    Compare a musician to someone like an architect. They both create things of value to a community, and I’m sure most good architects would think they are every bit as creative as a musician, if in different ways. Which exact element of being a musician gives them rights to protection of a repeating income source over time compared to an architect?

  41. Espenia Hallowe says:

    A very interesting issue indeed.

    I’m interested to hear peoples opinions on this point. What makes one type of creator any more socially deserving of repeating income over time (copyright protection) than another?

    Compare a musician to someone like an architect. They both create things of value to a community, and I’m sure most good architects would think they are every bit as creative as a musician, if in different ways. Which exact element of being a musician gives them rights to protection of a repeating income source over time compared to an architect?

  42. Espenia Hallowe says:

    A very interesting issue indeed.

    I’m interested to hear peoples opinions on this point. What makes one type of creator any more socially deserving of repeating income over time (copyright protection) than another?

    Compare a musician to someone like an architect. They both create things of value to a community, and I’m sure most good architects would think they are every bit as creative as a musician, if in different ways. Which exact element of being a musician gives them rights to protection of a repeating income source over time compared to an architect?

  43. Alex Bowles says:

    @Rachel.

    TBB is right – total abolition means doing away with property rights altogether. In the world of tangible assets, the existence of stable and effective property rights is the single greatest determining factor when it comes to a nation’s position on the poverty to wealth ladder. So it stands to reason that a total abolition of copyright will lead to a seriously impoverished culture.

    What I find abhorrent is the uncomfortable parallel between today’s large commercial content providers, and the dictators of third world nations. Basically, they can take whatever they want, give nothing in return, and treat as criminal anyone who opposes them.

    The idea that they’re supposed to be serving and enriching the body politic for the benefit of the body politic is anathema. The Chinese view is, by far, the more popular one. It’s all about forcible extraction, and strong delineation of privileged between those with ‘read’ and those with ‘write’.

    So yes, private property is good, but when all property is private, and effective ownership (i.e. the ability to enforce one’s copyrights) is limited to very few, then you have an untenable state of affairs.

    In some quarters, it could be viewed as a basis for revolution. Let’s hope it doesn’t come to that, as they tend to be painful, messy things for all involved.

    It would be a shame to adopt the CC model in an eventual bid for peace, as opposed to adopting it now in an enlightened bid for progress.

  44. Alex Bowles says:

    @Rachel.

    TBB is right – total abolition means doing away with property rights altogether. In the world of tangible assets, the existence of stable and effective property rights is the single greatest determining factor when it comes to a nation’s position on the poverty to wealth ladder. So it stands to reason that a total abolition of copyright will lead to a seriously impoverished culture.

    What I find abhorrent is the uncomfortable parallel between today’s large commercial content providers, and the dictators of third world nations. Basically, they can take whatever they want, give nothing in return, and treat as criminal anyone who opposes them.

    The idea that they’re supposed to be serving and enriching the body politic for the benefit of the body politic is anathema. The Chinese view is, by far, the more popular one. It’s all about forcible extraction, and strong delineation of privileged between those with ‘read’ and those with ‘write’.

    So yes, private property is good, but when all property is private, and effective ownership (i.e. the ability to enforce one’s copyrights) is limited to very few, then you have an untenable state of affairs.

    In some quarters, it could be viewed as a basis for revolution. Let’s hope it doesn’t come to that, as they tend to be painful, messy things for all involved.

    It would be a shame to adopt the CC model in an eventual bid for peace, as opposed to adopting it now in an enlightened bid for progress.

  45. Alex Bowles says:

    @Rachel.

    TBB is right – total abolition means doing away with property rights altogether. In the world of tangible assets, the existence of stable and effective property rights is the single greatest determining factor when it comes to a nation’s position on the poverty to wealth ladder. So it stands to reason that a total abolition of copyright will lead to a seriously impoverished culture.

    What I find abhorrent is the uncomfortable parallel between today’s large commercial content providers, and the dictators of third world nations. Basically, they can take whatever they want, give nothing in return, and treat as criminal anyone who opposes them.

    The idea that they’re supposed to be serving and enriching the body politic for the benefit of the body politic is anathema. The Chinese view is, by far, the more popular one. It’s all about forcible extraction, and strong delineation of privileged between those with ‘read’ and those with ‘write’.

    So yes, private property is good, but when all property is private, and effective ownership (i.e. the ability to enforce one’s copyrights) is limited to very few, then you have an untenable state of affairs.

    In some quarters, it could be viewed as a basis for revolution. Let’s hope it doesn’t come to that, as they tend to be painful, messy things for all involved.

    It would be a shame to adopt the CC model in an eventual bid for peace, as opposed to adopting it now in an enlightened bid for progress.

  46. Evan says:

    Perhaps eventually we’ll have a system of limited-time copyright again in this country.

    Perhaps all the people who are shackled with the mental yoke of conflating tangible, scare goods, with intangible information (which wholly lacks scarcity) will become free from that handicap… or, at the very least, die off.

    Intellectual property isn’t property. It never has been. *sigh*

  47. Evan says:

    Perhaps eventually we’ll have a system of limited-time copyright again in this country.

    Perhaps all the people who are shackled with the mental yoke of conflating tangible, scare goods, with intangible information (which wholly lacks scarcity) will become free from that handicap… or, at the very least, die off.

    Intellectual property isn’t property. It never has been. *sigh*

  48. Evan says:

    Perhaps eventually we’ll have a system of limited-time copyright again in this country.

    Perhaps all the people who are shackled with the mental yoke of conflating tangible, scare goods, with intangible information (which wholly lacks scarcity) will become free from that handicap… or, at the very least, die off.

    Intellectual property isn’t property. It never has been. *sigh*

  49. Rachel says:

    Alex, I completely agree – as I said, I have an emotional attachment to Armand Assante’s argument, but I know that, intellectually, we need some form of ownership.

    Having said that, I’m still wrestling with an earlier topic that Jon started a few weeks ago, about the nature of art. I’m not entirely convinced we have the model entirely right, since the notion of what is valuable in art is peculiar to the culture it comes from. The things we value in art have changed over time, and between cultures, and it’s by no means clear that Western culture has the right mix. Consider that in China, until the restoration of the entombed warriors, the notion of preservation of an original artifact was largely subservient to the preservation of the form of the artifact – that is, so long as something *looked* like the original, and was functionally the same, it was as valuable. It wasn’t until Italian conservators got into the act and convinced the Chinese there was a lot of money to be made from the authenticity of the original that the Chinese started trading off it.

    Our western model of cultural value places “authenticity” at the heart of the value chain, and this is an increasingly difficult problem to work with in the digital realm.

    Plus, as T-Bone Burnett has said, there’s the problem, in most of our art forms, of the use of prior works in art. Postmodernism practically relies on referentialism to sustain it. It’s not, long term, a very interesting way of viewing art, and it’s clear that what we’re seeing now is the a kind of fragmentation of arts practice that parallels the phenomenon Sontag wrote about in “Approaching Artaud”.

    I started writing about this in response to Jon’s post a while ago, but my thoughts are still incompletely formed. I’ll come back when I have something more useful to say on the subject. In the meantime, I think we approach a new model of intellectual property at our peril until we have a new model of arts values that are broadly shared. We need to know what it is we value about creativity and art beyond the products that are created.

    I have, of course, no idea how in hell we’re going to get there.

  50. Rachel says:

    Alex, I completely agree – as I said, I have an emotional attachment to Armand Assante’s argument, but I know that, intellectually, we need some form of ownership.

    Having said that, I’m still wrestling with an earlier topic that Jon started a few weeks ago, about the nature of art. I’m not entirely convinced we have the model entirely right, since the notion of what is valuable in art is peculiar to the culture it comes from. The things we value in art have changed over time, and between cultures, and it’s by no means clear that Western culture has the right mix. Consider that in China, until the restoration of the entombed warriors, the notion of preservation of an original artifact was largely subservient to the preservation of the form of the artifact – that is, so long as something *looked* like the original, and was functionally the same, it was as valuable. It wasn’t until Italian conservators got into the act and convinced the Chinese there was a lot of money to be made from the authenticity of the original that the Chinese started trading off it.

    Our western model of cultural value places “authenticity” at the heart of the value chain, and this is an increasingly difficult problem to work with in the digital realm.

    Plus, as T-Bone Burnett has said, there’s the problem, in most of our art forms, of the use of prior works in art. Postmodernism practically relies on referentialism to sustain it. It’s not, long term, a very interesting way of viewing art, and it’s clear that what we’re seeing now is the a kind of fragmentation of arts practice that parallels the phenomenon Sontag wrote about in “Approaching Artaud”.

    I started writing about this in response to Jon’s post a while ago, but my thoughts are still incompletely formed. I’ll come back when I have something more useful to say on the subject. In the meantime, I think we approach a new model of intellectual property at our peril until we have a new model of arts values that are broadly shared. We need to know what it is we value about creativity and art beyond the products that are created.

    I have, of course, no idea how in hell we’re going to get there.

  51. Rick Turner says:

    The architect/musician comparison is unfortunately worthless unless you consider works for hire on the part of composers, etc.

    Architects get paid usually based on the value of the entire building whether or not it is successful as a business venture, an artistic statement, or even whether or not it works…see all the screwed up Frank Lloyd Wright buildings that leak and break, for instance.

    Some songwriters do just work for a living with copyrights assigned to companies they work for. That’s also true of inventors who work for larger companies.

    With copyrights, it’s all getting weird because of “the Mouse”. Disney has been in the forefront of pushing copyright extensions to protect Steamboat Willie…oh, I mean Mickey Mouse…from being knocked off.

    All that said, if writers, artists, musicians, and composers can’t get paid for their work, they’ll stop doing the work. All the CC writers I see on line have already made their fortunes off of copywritten material, they have websites with lots of advertising money, or they’re just not pros.

  52. Rick Turner says:

    The architect/musician comparison is unfortunately worthless unless you consider works for hire on the part of composers, etc.

    Architects get paid usually based on the value of the entire building whether or not it is successful as a business venture, an artistic statement, or even whether or not it works…see all the screwed up Frank Lloyd Wright buildings that leak and break, for instance.

    Some songwriters do just work for a living with copyrights assigned to companies they work for. That’s also true of inventors who work for larger companies.

    With copyrights, it’s all getting weird because of “the Mouse”. Disney has been in the forefront of pushing copyright extensions to protect Steamboat Willie…oh, I mean Mickey Mouse…from being knocked off.

    All that said, if writers, artists, musicians, and composers can’t get paid for their work, they’ll stop doing the work. All the CC writers I see on line have already made their fortunes off of copywritten material, they have websites with lots of advertising money, or they’re just not pros.

  53. Rick Turner says:

    The architect/musician comparison is unfortunately worthless unless you consider works for hire on the part of composers, etc.

    Architects get paid usually based on the value of the entire building whether or not it is successful as a business venture, an artistic statement, or even whether or not it works…see all the screwed up Frank Lloyd Wright buildings that leak and break, for instance.

    Some songwriters do just work for a living with copyrights assigned to companies they work for. That’s also true of inventors who work for larger companies.

    With copyrights, it’s all getting weird because of “the Mouse”. Disney has been in the forefront of pushing copyright extensions to protect Steamboat Willie…oh, I mean Mickey Mouse…from being knocked off.

    All that said, if writers, artists, musicians, and composers can’t get paid for their work, they’ll stop doing the work. All the CC writers I see on line have already made their fortunes off of copywritten material, they have websites with lots of advertising money, or they’re just not pros.

  54. T Bone Burnett says:

    Espenia

    Difficult to copy a house. Easy to copy a music file.

    What if an architect designed a house and the owner of the house sold the plans for another, say, million houses to be built? Would it be jake for the architect to receive only the first payment, and the owner receive payments for the rest? Or, if the owner gave the plans away to a million other owners, how hard a time might the architect have finding work?

    Some would say that a piece of music has value in and of itself, with or without a community. I would say the piece of music has great value to the individual who creates it by its very creation.

    (I don’t really think music and architectural plans are a great comparison. I would guess that, generally speaking, more people could get more out of a piece of recorded music than the out of an architectural drawing.)

    When you go into a studio to record a piece of music, the result is that something is there that was not there before. You can”t see it, but there it is. There is no greater feeling than to write a piece of music and know that it is good. Killer also to record one- not nearly the same, but also killer.

    I can tell you this- it doesn’t feel that great when you have a good idea, and someone takes it and makes hay with it.

    Crazy that people will pay three dollars for a cup of coffee, but won’t pay ninety-nine cents for a recording of a song.

    Live music is the joint, anyway. (As far as I know, there is no such thing as live architecture.)

  55. T Bone Burnett says:

    Espenia

    Difficult to copy a house. Easy to copy a music file.

    What if an architect designed a house and the owner of the house sold the plans for another, say, million houses to be built? Would it be jake for the architect to receive only the first payment, and the owner receive payments for the rest? Or, if the owner gave the plans away to a million other owners, how hard a time might the architect have finding work?

    Some would say that a piece of music has value in and of itself, with or without a community. I would say the piece of music has great value to the individual who creates it by its very creation.

    (I don’t really think music and architectural plans are a great comparison. I would guess that, generally speaking, more people could get more out of a piece of recorded music than the out of an architectural drawing.)

    When you go into a studio to record a piece of music, the result is that something is there that was not there before. You can”t see it, but there it is. There is no greater feeling than to write a piece of music and know that it is good. Killer also to record one- not nearly the same, but also killer.

    I can tell you this- it doesn’t feel that great when you have a good idea, and someone takes it and makes hay with it.

    Crazy that people will pay three dollars for a cup of coffee, but won’t pay ninety-nine cents for a recording of a song.

    Live music is the joint, anyway. (As far as I know, there is no such thing as live architecture.)

  56. Jon Taplin says:

    I think T-Bone is totally right on this one.

  57. Jon Taplin says:

    I think T-Bone is totally right on this one.

  58. T Bone Burnett says:

    Rick- I wanted to say that if I don’t get paid for writing songs, I will continue writing songs. In fact, I have been doing just that for years. I don’t look at it as work, nor do I look at the years as a career. I view the entire thing as a great privilege, one for which I am deeply grateful.

  59. T Bone Burnett says:

    Rick- I wanted to say that if I don’t get paid for writing songs, I will continue writing songs. In fact, I have been doing just that for years. I don’t look at it as work, nor do I look at the years as a career. I view the entire thing as a great privilege, one for which I am deeply grateful.

  60. T Bone Burnett says:

    Rick- I wanted to say that if I don’t get paid for writing songs, I will continue writing songs. In fact, I have been doing just that for years. I don’t look at it as work, nor do I look at the years as a career. I view the entire thing as a great privilege, one for which I am deeply grateful.

  61. T Bone Burnett says:

    Oh, Rick, what the hell. I’ll just go ahead and say this. If someone stops making art because he is not getting paid for it, he does not deserve to be called an artist, nor does what he makes deserve to be called art. (Not that there is anything wrong with not being an artist.) In fact, to my way of seeing things, if he stopped, that would be a good thing.

  62. T Bone Burnett says:

    Oh, Rick, what the hell. I’ll just go ahead and say this. If someone stops making art because he is not getting paid for it, he does not deserve to be called an artist, nor does what he makes deserve to be called art. (Not that there is anything wrong with not being an artist.) In fact, to my way of seeing things, if he stopped, that would be a good thing.

  63. T Bone Burnett says:

    Oh, Rick, what the hell. I’ll just go ahead and say this. If someone stops making art because he is not getting paid for it, he does not deserve to be called an artist, nor does what he makes deserve to be called art. (Not that there is anything wrong with not being an artist.) In fact, to my way of seeing things, if he stopped, that would be a good thing.

  64. Rick Turner says:

    T-Bone, understood, but you are able to make a living at your art. Some composers would not be able to. Hey, I still play guitar for free, but now it’s really folk music! But if “recording artists” were not able to be paid for their recordings or their songs, what would happen. You’re sure not going to make it on the road very easily… And you’re in that position of having made an impact before the days of file sharing, etc. I would imagine you get checks from ASCAP or BMI, as do the artists you work with. I’m all in favor of that.

    Jon has suggested an Internet tax to be split up the same way ASCAP and BMI take care of things, and with digital watermarks, it could all be even more fairly distributed. Good luck on getting that through, though, because of privacy concerns…thanks to the porn industry…

  65. Rick Turner says:

    T-Bone, understood, but you are able to make a living at your art. Some composers would not be able to. Hey, I still play guitar for free, but now it’s really folk music! But if “recording artists” were not able to be paid for their recordings or their songs, what would happen. You’re sure not going to make it on the road very easily… And you’re in that position of having made an impact before the days of file sharing, etc. I would imagine you get checks from ASCAP or BMI, as do the artists you work with. I’m all in favor of that.

    Jon has suggested an Internet tax to be split up the same way ASCAP and BMI take care of things, and with digital watermarks, it could all be even more fairly distributed. Good luck on getting that through, though, because of privacy concerns…thanks to the porn industry…

  66. Rick Turner says:

    T-Bone, understood, but you are able to make a living at your art. Some composers would not be able to. Hey, I still play guitar for free, but now it’s really folk music! But if “recording artists” were not able to be paid for their recordings or their songs, what would happen. You’re sure not going to make it on the road very easily… And you’re in that position of having made an impact before the days of file sharing, etc. I would imagine you get checks from ASCAP or BMI, as do the artists you work with. I’m all in favor of that.

    Jon has suggested an Internet tax to be split up the same way ASCAP and BMI take care of things, and with digital watermarks, it could all be even more fairly distributed. Good luck on getting that through, though, because of privacy concerns…thanks to the porn industry…

  67. T Bone Burnett says:

    I got you, too, Rick. I’m with you. We have to find a balance. That’s for sure. I’m not at all opposed to making money, even a great fortune. As you know, there are those who spend more time each day counting money than they do making art. That is a hell of a note. The porn industry?!? God.

  68. T Bone Burnett says:

    I got you, too, Rick. I’m with you. We have to find a balance. That’s for sure. I’m not at all opposed to making money, even a great fortune. As you know, there are those who spend more time each day counting money than they do making art. That is a hell of a note. The porn industry?!? God.

  69. T Bone Burnett says:

    I got you, too, Rick. I’m with you. We have to find a balance. That’s for sure. I’m not at all opposed to making money, even a great fortune. As you know, there are those who spend more time each day counting money than they do making art. That is a hell of a note. The porn industry?!? God.

  70. T Bone Burnett says:

    I got you, too, Rick. I’m with you. We have to find a balance. That’s for sure. I’m not at all opposed to making money, even a great fortune. As you know, there are those who spend more time each day counting money than they do making art. That is a hell of a note. The porn industry?!? God.

  71. Alex Bowles says:

    For what it’s worth, Frank Lloyd Wright thought of architecture as ‘frozen music’ (which animation coming, I suppose from the motion of an individual through the building).

    I believe his favorite composer was Beethoven, who has been credited with imagining ‘cathedrals of sound’. Here, the compounding memories of sound illuminate a single timeless pattern.

    Not that this sheds any direct light on the copyright issue, but it did seem to make an interesting aside to this conversation.

  72. Alex Bowles says:

    For what it’s worth, Frank Lloyd Wright thought of architecture as ‘frozen music’ (which animation coming, I suppose from the motion of an individual through the building).

    I believe his favorite composer was Beethoven, who has been credited with imagining ‘cathedrals of sound’. Here, the compounding memories of sound illuminate a single timeless pattern.

    Not that this sheds any direct light on the copyright issue, but it did seem to make an interesting aside to this conversation.

  73. Alex Bowles says:

    ‘with animation’ not ‘which’. sorry.

  74. Alex Bowles says:

    ‘with animation’ not ‘which’. sorry.

  75. T Bone Burnett says:

    Rick- I was thinking about this conversation on the way to dinner, and it occurred to me that for artists to threaten to go on strike, as it were, is probably not going to be a successful strategy. It’s not like there is a shortage of art or music out there. I do this full time, and I am a few centuries behind on my reading. The authors might have made a step in the right direction. Looking forward to seeing you.

  76. T Bone Burnett says:

    Rick- I was thinking about this conversation on the way to dinner, and it occurred to me that for artists to threaten to go on strike, as it were, is probably not going to be a successful strategy. It’s not like there is a shortage of art or music out there. I do this full time, and I am a few centuries behind on my reading. The authors might have made a step in the right direction. Looking forward to seeing you.

  77. len says:

    Where I take issue is that the design and plans of a house are not as worthy as a song. Plans are copied, rights are paid, it is a system that works. Contractors buy those plans. Houses are not one-offs and a well-designed efficient house can currently do MORE for the state of things in the world than even the best written song. Let’s be honest. A hyacinth to feed thy soul is good as long as you still have one of the two loaves of bread you sold to buy the flower.

    The situation for music is somewhat like what goes down in a city with limited gig rooms. The pros defend their turf and the amateurs cut their costs, and then as Gresham’s Law kicks in the price settles into a mean for the amateurs, and the opportunities for the pros to make top dollar drops until only a few of them do. We can argue quality but in fact, in music as in all arts, good enough is good enough in the commercial market. That isn’t the art point of view but it is the fact of live gigging. If you do it for the fame and wealth, best of luck to you, but if you do it for the community of the band and the thrill of the crowd, or because this is how you’ve learned to express yourself, you have a lifetime of mostly pleasuable experience ahead.

    We have to be honest that the commercial value of published music has been wildly inflated for some time. As we’ve discussed before, there is still some money to be made in the sheet music, in the derivatives such as ringtones, in selling samples, in doing commissions for online worlds, and other page types. What is dieing is the Big Old Ceegar Chompin’ Boy You Gonna Be Very Rich Man industry of Nashville, LA and New York. And good riddance. Like any ecosystem, that which is unnecessary and can’t be sustained by artificial means dies. What we are witnessing is the last act of the ‘artificial means’ period. When The Bluebird became a museum, Nashville became irrlevant to the art of songwriting.

    Copyright should not die. Some people are only now waking up to the expense of enforcing it while others are just waking up to the reality that it still exists and is enforceable. Ask Coldplay about Joe Satriani.

    It would be good if we could enforce it without the goons. Frankly, mechanical royalties are in some ways dumb and wide open to corruption. At least with iTunes, there is if forced, transparent accounting and that is the real issue at hand.

    A little offtopic but related in the sense of what open IP-unencumbered tech can accomplish: Google shuttered its much ballyhooed virtual world offering, Lively, telling the content makers they could take screenshots but otherwise, they were screwed. The virtual worlds industy is immature and this sort of thing happens. Then this week, a group of Chinese programmers using ISO standard IP-unencumbered VRML/X3D, a standard the Web 2.0 VR vendors have spent many shekels trying to kill, duplicated most of Lively in one month and then offered it to the former Lively residents. It is a stunning act of revolution to the American vendor who thought it could talk open source and free out one side of its mouth while working to seize proprietary high ground on the other.

    So perhaps every time a kid takes a Beatle album, rips it and puts it up for free, it makes the world just a little bit better all the time. I’m not convinced it really hurts Paul and Ringo as much as shuttering those worlds hurt the Google customers.

  78. len says:

    Where I take issue is that the design and plans of a house are not as worthy as a song. Plans are copied, rights are paid, it is a system that works. Contractors buy those plans. Houses are not one-offs and a well-designed efficient house can currently do MORE for the state of things in the world than even the best written song. Let’s be honest. A hyacinth to feed thy soul is good as long as you still have one of the two loaves of bread you sold to buy the flower.

    The situation for music is somewhat like what goes down in a city with limited gig rooms. The pros defend their turf and the amateurs cut their costs, and then as Gresham’s Law kicks in the price settles into a mean for the amateurs, and the opportunities for the pros to make top dollar drops until only a few of them do. We can argue quality but in fact, in music as in all arts, good enough is good enough in the commercial market. That isn’t the art point of view but it is the fact of live gigging. If you do it for the fame and wealth, best of luck to you, but if you do it for the community of the band and the thrill of the crowd, or because this is how you’ve learned to express yourself, you have a lifetime of mostly pleasuable experience ahead.

    We have to be honest that the commercial value of published music has been wildly inflated for some time. As we’ve discussed before, there is still some money to be made in the sheet music, in the derivatives such as ringtones, in selling samples, in doing commissions for online worlds, and other page types. What is dieing is the Big Old Ceegar Chompin’ Boy You Gonna Be Very Rich Man industry of Nashville, LA and New York. And good riddance. Like any ecosystem, that which is unnecessary and can’t be sustained by artificial means dies. What we are witnessing is the last act of the ‘artificial means’ period. When The Bluebird became a museum, Nashville became irrlevant to the art of songwriting.

    Copyright should not die. Some people are only now waking up to the expense of enforcing it while others are just waking up to the reality that it still exists and is enforceable. Ask Coldplay about Joe Satriani.

    It would be good if we could enforce it without the goons. Frankly, mechanical royalties are in some ways dumb and wide open to corruption. At least with iTunes, there is if forced, transparent accounting and that is the real issue at hand.

    A little offtopic but related in the sense of what open IP-unencumbered tech can accomplish: Google shuttered its much ballyhooed virtual world offering, Lively, telling the content makers they could take screenshots but otherwise, they were screwed. The virtual worlds industy is immature and this sort of thing happens. Then this week, a group of Chinese programmers using ISO standard IP-unencumbered VRML/X3D, a standard the Web 2.0 VR vendors have spent many shekels trying to kill, duplicated most of Lively in one month and then offered it to the former Lively residents. It is a stunning act of revolution to the American vendor who thought it could talk open source and free out one side of its mouth while working to seize proprietary high ground on the other.

    So perhaps every time a kid takes a Beatle album, rips it and puts it up for free, it makes the world just a little bit better all the time. I’m not convinced it really hurts Paul and Ringo as much as shuttering those worlds hurt the Google customers.

  79. T Bone Burnett says:

    We have no issue.

  80. T Bone Burnett says:

    We have no issue.

  81. T Bone Burnett says:

    We have no issue.

  82. Rick Turner says:

    T-bone and all, what I object to is this whole idea that “information wants to be free”. No, it doesn’t. There are those whose labors are primarily mental. They should benefit from their labors no less than the brick layer or carpenter or doctor. If they invent or design or compose or write “information” that is of benefit to a lot of people…even if that “benefit” is “merely” aesthetic, then those people should be able to make a fair living from their talent/hard work/luck recipe. But defining “fair living”…now there’s the rub.

    I personally think it’s pathetic that sports heroes get signed for mega-millions while symphony orchestras go begging. On the other hand, I think it’s really fabulous when a stupidly rich rock star like Robert Plant goes and makes a fantastic album with Alison Krauss who I first heard at Follows Camp with an audience of maybe 300 dusty people. Ditto seeing John Paul Jones play mandolin on stage at Merle Fest with the Duhks. These guys are moving forward with their art and staying relevant. But that’s my own values. Some would love that A-Rod is fucking Madonna in between ball games…

    But intellectual property should be regarded as valuable as physical prowess in my little booklet. Why should Bob Dylan’s intellectual property be free and some football player’s work be worth millions? Is a ball player’s contribution to society worth more or less than Richard Thompson’s? I’ll take an Ali Farka Toure over your Bjorn Borg any day of the week… Or any member of Ralph Stanley’s band over any player on the Oakland Raiders… And the dollars seem to be going one way with the musos and quite another with the heroes of the Modern Roman Circus Games… Bread lines and the Coliseum… Blood sport wins, I guess…

  83. Rick Turner says:

    T-bone and all, what I object to is this whole idea that “information wants to be free”. No, it doesn’t. There are those whose labors are primarily mental. They should benefit from their labors no less than the brick layer or carpenter or doctor. If they invent or design or compose or write “information” that is of benefit to a lot of people…even if that “benefit” is “merely” aesthetic, then those people should be able to make a fair living from their talent/hard work/luck recipe. But defining “fair living”…now there’s the rub.

    I personally think it’s pathetic that sports heroes get signed for mega-millions while symphony orchestras go begging. On the other hand, I think it’s really fabulous when a stupidly rich rock star like Robert Plant goes and makes a fantastic album with Alison Krauss who I first heard at Follows Camp with an audience of maybe 300 dusty people. Ditto seeing John Paul Jones play mandolin on stage at Merle Fest with the Duhks. These guys are moving forward with their art and staying relevant. But that’s my own values. Some would love that A-Rod is fucking Madonna in between ball games…

    But intellectual property should be regarded as valuable as physical prowess in my little booklet. Why should Bob Dylan’s intellectual property be free and some football player’s work be worth millions? Is a ball player’s contribution to society worth more or less than Richard Thompson’s? I’ll take an Ali Farka Toure over your Bjorn Borg any day of the week… Or any member of Ralph Stanley’s band over any player on the Oakland Raiders… And the dollars seem to be going one way with the musos and quite another with the heroes of the Modern Roman Circus Games… Bread lines and the Coliseum… Blood sport wins, I guess…

  84. Rick Turner says:

    T-bone and all, what I object to is this whole idea that “information wants to be free”. No, it doesn’t. There are those whose labors are primarily mental. They should benefit from their labors no less than the brick layer or carpenter or doctor. If they invent or design or compose or write “information” that is of benefit to a lot of people…even if that “benefit” is “merely” aesthetic, then those people should be able to make a fair living from their talent/hard work/luck recipe. But defining “fair living”…now there’s the rub.

    I personally think it’s pathetic that sports heroes get signed for mega-millions while symphony orchestras go begging. On the other hand, I think it’s really fabulous when a stupidly rich rock star like Robert Plant goes and makes a fantastic album with Alison Krauss who I first heard at Follows Camp with an audience of maybe 300 dusty people. Ditto seeing John Paul Jones play mandolin on stage at Merle Fest with the Duhks. These guys are moving forward with their art and staying relevant. But that’s my own values. Some would love that A-Rod is fucking Madonna in between ball games…

    But intellectual property should be regarded as valuable as physical prowess in my little booklet. Why should Bob Dylan’s intellectual property be free and some football player’s work be worth millions? Is a ball player’s contribution to society worth more or less than Richard Thompson’s? I’ll take an Ali Farka Toure over your Bjorn Borg any day of the week… Or any member of Ralph Stanley’s band over any player on the Oakland Raiders… And the dollars seem to be going one way with the musos and quite another with the heroes of the Modern Roman Circus Games… Bread lines and the Coliseum… Blood sport wins, I guess…

  85. Anders says:

    @Rick Turner “[Artists] should benefit from their labors no less than the brick layer or carpenter or doctor”

    Right. But they should not have special privileges either. Artists should be paid _once_ , when they release a work to society! Not per copy made thereafter.
    If an artist is not willing to make the bet that the initial fee will cover his costs, he should stop trying to be an artist. Or he should work on a contract. Or he should secure pledges before working.

    And he most certainly should not be allowed privileges on how, where and by whom the song is used afterwards. (No more than carpenters can mandate “no colored people in this house I built”, or doctors can say “I fixed your hand, now you must never use it for woodcutting again”).

  86. Anders says:

    @Rick Turner “[Artists] should benefit from their labors no less than the brick layer or carpenter or doctor”

    Right. But they should not have special privileges either. Artists should be paid _once_ , when they release a work to society! Not per copy made thereafter.
    If an artist is not willing to make the bet that the initial fee will cover his costs, he should stop trying to be an artist. Or he should work on a contract. Or he should secure pledges before working.

    And he most certainly should not be allowed privileges on how, where and by whom the song is used afterwards. (No more than carpenters can mandate “no colored people in this house I built”, or doctors can say “I fixed your hand, now you must never use it for woodcutting again”).

  87. Anders says:

    @Rick Turner “[Artists] should benefit from their labors no less than the brick layer or carpenter or doctor”

    Right. But they should not have special privileges either. Artists should be paid _once_ , when they release a work to society! Not per copy made thereafter.
    If an artist is not willing to make the bet that the initial fee will cover his costs, he should stop trying to be an artist. Or he should work on a contract. Or he should secure pledges before working.

    And he most certainly should not be allowed privileges on how, where and by whom the song is used afterwards. (No more than carpenters can mandate “no colored people in this house I built”, or doctors can say “I fixed your hand, now you must never use it for woodcutting again”).

  88. Anders says:

    @Rick Turner “[Artists] should benefit from their labors no less than the brick layer or carpenter or doctor”

    Right. But they should not have special privileges either. Artists should be paid _once_ , when they release a work to society! Not per copy made thereafter.
    If an artist is not willing to make the bet that the initial fee will cover his costs, he should stop trying to be an artist. Or he should work on a contract. Or he should secure pledges before working.

    And he most certainly should not be allowed privileges on how, where and by whom the song is used afterwards. (No more than carpenters can mandate “no colored people in this house I built”, or doctors can say “I fixed your hand, now you must never use it for woodcutting again”).

  89. Alex Bowles says:

    …or no “No humming this song in the shower – it was meant to be sung damnit, so sing properly!”

  90. Alex Bowles says:

    …or no “No humming this song in the shower – it was meant to be sung damnit, so sing properly!”

  91. Alex Bowles says:

    …or no “No humming this song in the shower – it was meant to be sung damnit, so sing properly!”

  92. Alex Bowles says:

    …or no “No humming this song in the shower – it was meant to be sung damnit, so sing properly!”

  93. Rick Turner says:

    Anders, I’d sure like to know how you think that can possibly work. It can’t.

    And pro football players should get $1,000.00 a game, too, right?

  94. Rick Turner says:

    Anders, I’d sure like to know how you think that can possibly work. It can’t.

    And pro football players should get $1,000.00 a game, too, right?

  95. Rick Turner says:

    Anders, I’d sure like to know how you think that can possibly work. It can’t.

    And pro football players should get $1,000.00 a game, too, right?

  96. Rick Turner says:

    Anders, I’d sure like to know how you think that can possibly work. It can’t.

    And pro football players should get $1,000.00 a game, too, right?

  97. Armand Asante says:

    @T-Bone:

    “To abolish copyright is to abolish private property.”

    How so?
    When I have a house, or a computer or a bottle of coke that is my property and someone else takes is – I am left without it.
    Property laws are there to protect me from losing what I have.

    When I have a recording of a song and someone else copies it – I am not bereft of that recording.

    I am not advocating abolishing private property. I am simply saying that creativity and ideas should not be regarded as private property. Just because we’ve grown up in a world where things of the spirit and of the mind were regarded as property does not mean our children need grow up in such a world too.

    Your example with the architectural plans is a perfect example of where abolishing copyright would help.
    If I, as an architect, am afraid of my idea leaking out – I will not release those plans. I will keep them in a vault.
    They will stay my property.

    However if someone saw a house built with those plans and wanted to make one just like it – he’d have to pay me for those plans or pay another architect to draw up similar plans based on the house already built.

    Either way, architects get paid and houses are built. And in the process more people get the type of houses they wish for.
    The common good is served (perhaps at the expense of a singular genius architect). But such is a small price to pay as a society in my view.

    If the idea is good enough, it will be copied or emulated – thus serving the creator’s ego.
    And if the idea is generic enough that it can be easily copied or reproduced by another, then there shouldn’t be a law restricting it – thus serving the common good (though maybe not some huge company’s pocket – the artist is usually NOT left holding the copyright anyway).

    There is no reason, in my mind, that such a thing should not be allowed.

    The only issue my stance on complete abolition of copyright does NOT address is the issue of attribution.
    Such an issue might need enforcement through legislation (or might not – I don’t know) but copyright laws do not address that issue anyway.
    So the issue of attribution would not stand in the way of abolishing copyright laws outright.

  98. Armand Asante says:

    @T-Bone:

    “To abolish copyright is to abolish private property.”

    How so?
    When I have a house, or a computer or a bottle of coke that is my property and someone else takes is – I am left without it.
    Property laws are there to protect me from losing what I have.

    When I have a recording of a song and someone else copies it – I am not bereft of that recording.

    I am not advocating abolishing private property. I am simply saying that creativity and ideas should not be regarded as private property. Just because we’ve grown up in a world where things of the spirit and of the mind were regarded as property does not mean our children need grow up in such a world too.

    Your example with the architectural plans is a perfect example of where abolishing copyright would help.
    If I, as an architect, am afraid of my idea leaking out – I will not release those plans. I will keep them in a vault.
    They will stay my property.

    However if someone saw a house built with those plans and wanted to make one just like it – he’d have to pay me for those plans or pay another architect to draw up similar plans based on the house already built.

    Either way, architects get paid and houses are built. And in the process more people get the type of houses they wish for.
    The common good is served (perhaps at the expense of a singular genius architect). But such is a small price to pay as a society in my view.

    If the idea is good enough, it will be copied or emulated – thus serving the creator’s ego.
    And if the idea is generic enough that it can be easily copied or reproduced by another, then there shouldn’t be a law restricting it – thus serving the common good (though maybe not some huge company’s pocket – the artist is usually NOT left holding the copyright anyway).

    There is no reason, in my mind, that such a thing should not be allowed.

    The only issue my stance on complete abolition of copyright does NOT address is the issue of attribution.
    Such an issue might need enforcement through legislation (or might not – I don’t know) but copyright laws do not address that issue anyway.
    So the issue of attribution would not stand in the way of abolishing copyright laws outright.

  99. Armand Asante says:

    @T-Bone:

    “To abolish copyright is to abolish private property.”

    How so?
    When I have a house, or a computer or a bottle of coke that is my property and someone else takes is – I am left without it.
    Property laws are there to protect me from losing what I have.

    When I have a recording of a song and someone else copies it – I am not bereft of that recording.

    I am not advocating abolishing private property. I am simply saying that creativity and ideas should not be regarded as private property. Just because we’ve grown up in a world where things of the spirit and of the mind were regarded as property does not mean our children need grow up in such a world too.

    Your example with the architectural plans is a perfect example of where abolishing copyright would help.
    If I, as an architect, am afraid of my idea leaking out – I will not release those plans. I will keep them in a vault.
    They will stay my property.

    However if someone saw a house built with those plans and wanted to make one just like it – he’d have to pay me for those plans or pay another architect to draw up similar plans based on the house already built.

    Either way, architects get paid and houses are built. And in the process more people get the type of houses they wish for.
    The common good is served (perhaps at the expense of a singular genius architect). But such is a small price to pay as a society in my view.

    If the idea is good enough, it will be copied or emulated – thus serving the creator’s ego.
    And if the idea is generic enough that it can be easily copied or reproduced by another, then there shouldn’t be a law restricting it – thus serving the common good (though maybe not some huge company’s pocket – the artist is usually NOT left holding the copyright anyway).

    There is no reason, in my mind, that such a thing should not be allowed.

    The only issue my stance on complete abolition of copyright does NOT address is the issue of attribution.
    Such an issue might need enforcement through legislation (or might not – I don’t know) but copyright laws do not address that issue anyway.
    So the issue of attribution would not stand in the way of abolishing copyright laws outright.

  100. Tom Wilmot says:

    I’d like to get back to a point talked about earlier in regards to “cultural commons” and it’s impact on the creative output of the individual.

    All forms of creativity borrow to one degree or another from the world at large – it’s part of the process. For example, I earn my living as a commercial artist/illustrator. One of the necessities for an illustrator is what we used to refer to as a “scrap pile” – basically the collection of images and objects you’ve run across over the years and said, “gee, I might need to reference this kind of tweed or mica encrusted granite or a Shetland pony sometime.” With the advent of the internet, suddenly, the whole friggin’ world is your scrap pile – easily referenced and bursting with options.

    Stanley Mouse and Alton Kelly, back in the 60’s, made reference to the “image bank” – basically stating that all visual material is a “cultural common”. In this frame of reference, plagiarism becomes meaningless and a poster such as their October 6-7th Avalon Ballroom 1966 “Girl with Green Hair” that completely lifts an Alphonse Mucha lithograph as its’ central image – without accreditation or acknowledgement is seen as perfectly valid. Alton Kelly later said, “when I use an image, I don’t steal it – I made it my own. I felt I had a right to use it.”

    Now, is that a valid definition of “fair use”? It’s one thing to do a “Mucha-like” drawing, which I would consider fair use, since you are referencing the style but creating an original, albeit referential work – it’s quite another to merely replace Mucha’s signature with your own.

    Copyright is one of the few areas that protect the artist from wholesale misuse of their work. Money aside, I would be less than happy to see work that I did being passed off as the efforts of someone else. As a commercial artist, I have less protection from this sort of misuse, fortunately, the majority of material I produce for clients is so obscure that I doubt if anyone is going to be lifting my illustrations of exercises for stroke patients to make a critical artistic statement on their own.

    But, I think you see the point. Because people can get lazy with values, without some sort of protection for intellectual/creative property, anyone creating anything can be victimized by a loose “fair use” standard.

    So, the question I’d like to toss out at this point is, where does fair use stop and piracy begin?

  101. Tom Wilmot says:

    I’d like to get back to a point talked about earlier in regards to “cultural commons” and it’s impact on the creative output of the individual.

    All forms of creativity borrow to one degree or another from the world at large – it’s part of the process. For example, I earn my living as a commercial artist/illustrator. One of the necessities for an illustrator is what we used to refer to as a “scrap pile” – basically the collection of images and objects you’ve run across over the years and said, “gee, I might need to reference this kind of tweed or mica encrusted granite or a Shetland pony sometime.” With the advent of the internet, suddenly, the whole friggin’ world is your scrap pile – easily referenced and bursting with options.

    Stanley Mouse and Alton Kelly, back in the 60’s, made reference to the “image bank” – basically stating that all visual material is a “cultural common”. In this frame of reference, plagiarism becomes meaningless and a poster such as their October 6-7th Avalon Ballroom 1966 “Girl with Green Hair” that completely lifts an Alphonse Mucha lithograph as its’ central image – without accreditation or acknowledgement is seen as perfectly valid. Alton Kelly later said, “when I use an image, I don’t steal it – I made it my own. I felt I had a right to use it.”

    Now, is that a valid definition of “fair use”? It’s one thing to do a “Mucha-like” drawing, which I would consider fair use, since you are referencing the style but creating an original, albeit referential work – it’s quite another to merely replace Mucha’s signature with your own.

    Copyright is one of the few areas that protect the artist from wholesale misuse of their work. Money aside, I would be less than happy to see work that I did being passed off as the efforts of someone else. As a commercial artist, I have less protection from this sort of misuse, fortunately, the majority of material I produce for clients is so obscure that I doubt if anyone is going to be lifting my illustrations of exercises for stroke patients to make a critical artistic statement on their own.

    But, I think you see the point. Because people can get lazy with values, without some sort of protection for intellectual/creative property, anyone creating anything can be victimized by a loose “fair use” standard.

    So, the question I’d like to toss out at this point is, where does fair use stop and piracy begin?

  102. Tom Wilmot says:

    I’d like to get back to a point talked about earlier in regards to “cultural commons” and it’s impact on the creative output of the individual.

    All forms of creativity borrow to one degree or another from the world at large – it’s part of the process. For example, I earn my living as a commercial artist/illustrator. One of the necessities for an illustrator is what we used to refer to as a “scrap pile” – basically the collection of images and objects you’ve run across over the years and said, “gee, I might need to reference this kind of tweed or mica encrusted granite or a Shetland pony sometime.” With the advent of the internet, suddenly, the whole friggin’ world is your scrap pile – easily referenced and bursting with options.

    Stanley Mouse and Alton Kelly, back in the 60’s, made reference to the “image bank” – basically stating that all visual material is a “cultural common”. In this frame of reference, plagiarism becomes meaningless and a poster such as their October 6-7th Avalon Ballroom 1966 “Girl with Green Hair” that completely lifts an Alphonse Mucha lithograph as its’ central image – without accreditation or acknowledgement is seen as perfectly valid. Alton Kelly later said, “when I use an image, I don’t steal it – I made it my own. I felt I had a right to use it.”

    Now, is that a valid definition of “fair use”? It’s one thing to do a “Mucha-like” drawing, which I would consider fair use, since you are referencing the style but creating an original, albeit referential work – it’s quite another to merely replace Mucha’s signature with your own.

    Copyright is one of the few areas that protect the artist from wholesale misuse of their work. Money aside, I would be less than happy to see work that I did being passed off as the efforts of someone else. As a commercial artist, I have less protection from this sort of misuse, fortunately, the majority of material I produce for clients is so obscure that I doubt if anyone is going to be lifting my illustrations of exercises for stroke patients to make a critical artistic statement on their own.

    But, I think you see the point. Because people can get lazy with values, without some sort of protection for intellectual/creative property, anyone creating anything can be victimized by a loose “fair use” standard.

    So, the question I’d like to toss out at this point is, where does fair use stop and piracy begin?

  103. len says:

    @rick and t-bone: From the personal and professional perspective, you hit the nail on the head. Who one gets to work with is in some ways more important than what is done with the work because that is the fast lane to learning, growing, and life long pleasure. It makes a huge difference to both the artist and the art. When T puts together two wildly divergent artists and blends that, magic happens. It’s the same for Rick working with his partners making axes or playing folk. I’ve friends that I would go gig with despite the pay or the room just to be in that sound. Those who won’t don’t get it. Enough said.

    @Tom: Fair use is hard. At two extremes, sampling has been shown not to be fair use given it infringes the right to copy the audio recording. Ripping off licks within a different structure is pretty much how art works within a genre, thus T-Bone’s example. Blues would not have left the Delta if that weren’t possible and it would be a fairly crude genre mechanically. The art rock world of the late Seventies (say Yes) would be nowhere without Debussy. The lick that starts Layla is a standard pull-off/hammer-on used everywhere and it only becomes a signature lick past the first measure.

    But in this kind of fair use, we are reapplying the materials and it is a matter of size and volume. There are no algorithms for this so it comes down to lawyers and a judge. The web community has long been in the habit of pilfering, in fact, the web is itself made of pilfered ideas and openly shared/discussed information. Much of the thinking that has made its way into the art world comes of computer scientists trying to justify that. As the twig is bent…

    Without copyright, though, I have to disagree with Armand, it would be very hard to make enough money to be and stay a pro. It comes down to asking yourself if you really want to have professional songwriters and arrangers. There is plenty of text explaining how points work so I won’t get into it, but a single song will not make one fabulously wealthy where a decent sized catalog of reasonably distributed work will make one comfortable. For a pro, it is necessary to not just write but produce, perform, play sessions and so on depending on the lifestyle.

    But the issues that are most pertinent in my opinion are

    a) recognition that the technology of digital technology is irrevocable and changes the means and rewards for the digital arts of all forms and

    b) the accounting means we have relied on and which have been used in all media industries to enrich and defraud have to change and become transparent. This is another case where transparency is good for everyone except the criminals.

    c) The media industries that create new business models to adapt to this will continue to thrive because no one stays in business suing the customers and as long as there are speaker wires and means to decompile code, no means of DRM will work without strong enforcement.

    d) Companies and individuals that are enriching themselves by burgling the commons and the private property of the media industry need to be sued into bankruptcy if that is what it takes. Otherwise, the media industry has to declare war on the software giants that choose to use the mantras such as “information wants to free” (a really dumb but slick way to defraud) up to and including supporting breaking their binaries open. Let’s put fair use to the ultimate test of tit for tat.

    It won’t come to that but I’m a bit tired of watching 20 somethings claim rights they don’t have to information they don’t own so they can possess wealth they did not earn. If the kids don’t get this, let them do six months at the big house until they do.

  104. len says:

    @rick and t-bone: From the personal and professional perspective, you hit the nail on the head. Who one gets to work with is in some ways more important than what is done with the work because that is the fast lane to learning, growing, and life long pleasure. It makes a huge difference to both the artist and the art. When T puts together two wildly divergent artists and blends that, magic happens. It’s the same for Rick working with his partners making axes or playing folk. I’ve friends that I would go gig with despite the pay or the room just to be in that sound. Those who won’t don’t get it. Enough said.

    @Tom: Fair use is hard. At two extremes, sampling has been shown not to be fair use given it infringes the right to copy the audio recording. Ripping off licks within a different structure is pretty much how art works within a genre, thus T-Bone’s example. Blues would not have left the Delta if that weren’t possible and it would be a fairly crude genre mechanically. The art rock world of the late Seventies (say Yes) would be nowhere without Debussy. The lick that starts Layla is a standard pull-off/hammer-on used everywhere and it only becomes a signature lick past the first measure.

    But in this kind of fair use, we are reapplying the materials and it is a matter of size and volume. There are no algorithms for this so it comes down to lawyers and a judge. The web community has long been in the habit of pilfering, in fact, the web is itself made of pilfered ideas and openly shared/discussed information. Much of the thinking that has made its way into the art world comes of computer scientists trying to justify that. As the twig is bent…

    Without copyright, though, I have to disagree with Armand, it would be very hard to make enough money to be and stay a pro. It comes down to asking yourself if you really want to have professional songwriters and arrangers. There is plenty of text explaining how points work so I won’t get into it, but a single song will not make one fabulously wealthy where a decent sized catalog of reasonably distributed work will make one comfortable. For a pro, it is necessary to not just write but produce, perform, play sessions and so on depending on the lifestyle.

    But the issues that are most pertinent in my opinion are

    a) recognition that the technology of digital technology is irrevocable and changes the means and rewards for the digital arts of all forms and

    b) the accounting means we have relied on and which have been used in all media industries to enrich and defraud have to change and become transparent. This is another case where transparency is good for everyone except the criminals.

    c) The media industries that create new business models to adapt to this will continue to thrive because no one stays in business suing the customers and as long as there are speaker wires and means to decompile code, no means of DRM will work without strong enforcement.

    d) Companies and individuals that are enriching themselves by burgling the commons and the private property of the media industry need to be sued into bankruptcy if that is what it takes. Otherwise, the media industry has to declare war on the software giants that choose to use the mantras such as “information wants to free” (a really dumb but slick way to defraud) up to and including supporting breaking their binaries open. Let’s put fair use to the ultimate test of tit for tat.

    It won’t come to that but I’m a bit tired of watching 20 somethings claim rights they don’t have to information they don’t own so they can possess wealth they did not earn. If the kids don’t get this, let them do six months at the big house until they do.

  105. len says:

    @rick and t-bone: From the personal and professional perspective, you hit the nail on the head. Who one gets to work with is in some ways more important than what is done with the work because that is the fast lane to learning, growing, and life long pleasure. It makes a huge difference to both the artist and the art. When T puts together two wildly divergent artists and blends that, magic happens. It’s the same for Rick working with his partners making axes or playing folk. I’ve friends that I would go gig with despite the pay or the room just to be in that sound. Those who won’t don’t get it. Enough said.

    @Tom: Fair use is hard. At two extremes, sampling has been shown not to be fair use given it infringes the right to copy the audio recording. Ripping off licks within a different structure is pretty much how art works within a genre, thus T-Bone’s example. Blues would not have left the Delta if that weren’t possible and it would be a fairly crude genre mechanically. The art rock world of the late Seventies (say Yes) would be nowhere without Debussy. The lick that starts Layla is a standard pull-off/hammer-on used everywhere and it only becomes a signature lick past the first measure.

    But in this kind of fair use, we are reapplying the materials and it is a matter of size and volume. There are no algorithms for this so it comes down to lawyers and a judge. The web community has long been in the habit of pilfering, in fact, the web is itself made of pilfered ideas and openly shared/discussed information. Much of the thinking that has made its way into the art world comes of computer scientists trying to justify that. As the twig is bent…

    Without copyright, though, I have to disagree with Armand, it would be very hard to make enough money to be and stay a pro. It comes down to asking yourself if you really want to have professional songwriters and arrangers. There is plenty of text explaining how points work so I won’t get into it, but a single song will not make one fabulously wealthy where a decent sized catalog of reasonably distributed work will make one comfortable. For a pro, it is necessary to not just write but produce, perform, play sessions and so on depending on the lifestyle.

    But the issues that are most pertinent in my opinion are

    a) recognition that the technology of digital technology is irrevocable and changes the means and rewards for the digital arts of all forms and

    b) the accounting means we have relied on and which have been used in all media industries to enrich and defraud have to change and become transparent. This is another case where transparency is good for everyone except the criminals.

    c) The media industries that create new business models to adapt to this will continue to thrive because no one stays in business suing the customers and as long as there are speaker wires and means to decompile code, no means of DRM will work without strong enforcement.

    d) Companies and individuals that are enriching themselves by burgling the commons and the private property of the media industry need to be sued into bankruptcy if that is what it takes. Otherwise, the media industry has to declare war on the software giants that choose to use the mantras such as “information wants to free” (a really dumb but slick way to defraud) up to and including supporting breaking their binaries open. Let’s put fair use to the ultimate test of tit for tat.

    It won’t come to that but I’m a bit tired of watching 20 somethings claim rights they don’t have to information they don’t own so they can possess wealth they did not earn. If the kids don’t get this, let them do six months at the big house until they do.

  106. My concern with a global license is this:

    What incentive do the copyright owners have to ever do anything new? It seems that if $1.5bn/month is just being handed to them, they might as well shut down their entire operation, except for a small office full of lawyers, and just collect rent on music being downloaded or played.

    Why would they ever bother promoting new acts, or letting anyone else into the revenue sharing pool?

  107. My concern with a global license is this:

    What incentive do the copyright owners have to ever do anything new? It seems that if $1.5bn/month is just being handed to them, they might as well shut down their entire operation, except for a small office full of lawyers, and just collect rent on music being downloaded or played.

    Why would they ever bother promoting new acts, or letting anyone else into the revenue sharing pool?

  108. My concern with a global license is this:

    What incentive do the copyright owners have to ever do anything new? It seems that if $1.5bn/month is just being handed to them, they might as well shut down their entire operation, except for a small office full of lawyers, and just collect rent on music being downloaded or played.

    Why would they ever bother promoting new acts, or letting anyone else into the revenue sharing pool?

  109. My concern with a global license is this:

    What incentive do the copyright owners have to ever do anything new? It seems that if $1.5bn/month is just being handed to them, they might as well shut down their entire operation, except for a small office full of lawyers, and just collect rent on music being downloaded or played.

    Why would they ever bother promoting new acts, or letting anyone else into the revenue sharing pool?

  110. T Bone Burnett says:

    Armand- If you own a house and somebody makes copies of you, reorders your thoughts, and starts using those copies of you to make money or steal money or attack someone or to sell something, that is what we are talking about. The house in this conversation is almost irrelevant.

    Or, Starbucks sells you a cup of coffee. After you drink it, it is full again. The cruise of oil that never fails. If Starbucks wanted to sell you another cup of coffee, they would have to come up with a new kind of coffee. Every cup has to be unique.

    Or, you own a house and people start moving into your house, eating your food and rifling through your papers, invading your privacy, and they keep coming until everyone is standing in the exact same space. It is not a great idea to assign a greater value or significance to physical property than to intellectual property. My view is the opposite. A few tens of thousands of years ago, there were only twelve hundred people on Earth, living in Africa. The human race was almost extinct. Then something happened- one of the people started making art, abstract thought entered the race and the entire migration that brought us to where we are today began. It is of profound importance that intellectual property have standing as private property.

    Rick- That’s right, a painting is not information. That is a serious reduction. The fastest machine we make will not be able to decipher the information, so to speak, in a Jackson Pollack painting or tell you what it is talking about.

  111. T Bone Burnett says:

    Armand- If you own a house and somebody makes copies of you, reorders your thoughts, and starts using those copies of you to make money or steal money or attack someone or to sell something, that is what we are talking about. The house in this conversation is almost irrelevant.

    Or, Starbucks sells you a cup of coffee. After you drink it, it is full again. The cruise of oil that never fails. If Starbucks wanted to sell you another cup of coffee, they would have to come up with a new kind of coffee. Every cup has to be unique.

    Or, you own a house and people start moving into your house, eating your food and rifling through your papers, invading your privacy, and they keep coming until everyone is standing in the exact same space. It is not a great idea to assign a greater value or significance to physical property than to intellectual property. My view is the opposite. A few tens of thousands of years ago, there were only twelve hundred people on Earth, living in Africa. The human race was almost extinct. Then something happened- one of the people started making art, abstract thought entered the race and the entire migration that brought us to where we are today began. It is of profound importance that intellectual property have standing as private property.

    Rick- That’s right, a painting is not information. That is a serious reduction. The fastest machine we make will not be able to decipher the information, so to speak, in a Jackson Pollack painting or tell you what it is talking about.

  112. T Bone Burnett says:

    Armand- If you own a house and somebody makes copies of you, reorders your thoughts, and starts using those copies of you to make money or steal money or attack someone or to sell something, that is what we are talking about. The house in this conversation is almost irrelevant.

    Or, Starbucks sells you a cup of coffee. After you drink it, it is full again. The cruise of oil that never fails. If Starbucks wanted to sell you another cup of coffee, they would have to come up with a new kind of coffee. Every cup has to be unique.

    Or, you own a house and people start moving into your house, eating your food and rifling through your papers, invading your privacy, and they keep coming until everyone is standing in the exact same space. It is not a great idea to assign a greater value or significance to physical property than to intellectual property. My view is the opposite. A few tens of thousands of years ago, there were only twelve hundred people on Earth, living in Africa. The human race was almost extinct. Then something happened- one of the people started making art, abstract thought entered the race and the entire migration that brought us to where we are today began. It is of profound importance that intellectual property have standing as private property.

    Rick- That’s right, a painting is not information. That is a serious reduction. The fastest machine we make will not be able to decipher the information, so to speak, in a Jackson Pollack painting or tell you what it is talking about.

  113. T Bone Burnett says:

    Armand- If you own a house and somebody makes copies of you, reorders your thoughts, and starts using those copies of you to make money or steal money or attack someone or to sell something, that is what we are talking about. The house in this conversation is almost irrelevant.

    Or, Starbucks sells you a cup of coffee. After you drink it, it is full again. The cruise of oil that never fails. If Starbucks wanted to sell you another cup of coffee, they would have to come up with a new kind of coffee. Every cup has to be unique.

    Or, you own a house and people start moving into your house, eating your food and rifling through your papers, invading your privacy, and they keep coming until everyone is standing in the exact same space. It is not a great idea to assign a greater value or significance to physical property than to intellectual property. My view is the opposite. A few tens of thousands of years ago, there were only twelve hundred people on Earth, living in Africa. The human race was almost extinct. Then something happened- one of the people started making art, abstract thought entered the race and the entire migration that brought us to where we are today began. It is of profound importance that intellectual property have standing as private property.

    Rick- That’s right, a painting is not information. That is a serious reduction. The fastest machine we make will not be able to decipher the information, so to speak, in a Jackson Pollack painting or tell you what it is talking about.

  114. T Bone Burnett says:

    Information does not want to be free. Information doesn’t give a damn. In fact, it has no idea whatsoever.

    “d) Companies and individuals that are enriching themselves by burgling the commons and the private property of the media industry need to be sued into bankruptcy if that is what it takes. Otherwise, the media industry has to declare war on the software giants that choose to use the mantras such as “information wants to free” (a really dumb but slick way to defraud) up to and including supporting breaking their binaries open. Let’s put fair use to the ultimate test of tit for tat.”

    I thought that bore repeating.

  115. T Bone Burnett says:

    Information does not want to be free. Information doesn’t give a damn. In fact, it has no idea whatsoever.

    “d) Companies and individuals that are enriching themselves by burgling the commons and the private property of the media industry need to be sued into bankruptcy if that is what it takes. Otherwise, the media industry has to declare war on the software giants that choose to use the mantras such as “information wants to free” (a really dumb but slick way to defraud) up to and including supporting breaking their binaries open. Let’s put fair use to the ultimate test of tit for tat.”

    I thought that bore repeating.

  116. T Bone Burnett says:

    Information does not want to be free. Information doesn’t give a damn. In fact, it has no idea whatsoever.

    “d) Companies and individuals that are enriching themselves by burgling the commons and the private property of the media industry need to be sued into bankruptcy if that is what it takes. Otherwise, the media industry has to declare war on the software giants that choose to use the mantras such as “information wants to free” (a really dumb but slick way to defraud) up to and including supporting breaking their binaries open. Let’s put fair use to the ultimate test of tit for tat.”

    I thought that bore repeating.

  117. Daniel says:

    What about people who have no interest in downloading music or movies, will they also have to pay this extra tax on top of their internet costs???

    The real problem is that this industrialized model of production is out of date. It’s in an “interregnum”, as you’d call it, Mr. Taplin. The cost of producing a record is almost nothing now that hardware and software are widespread and cheaply available. A record company is no longer necessary to financially back artists. Artists can now do their own distribution and advertising just by creating a myspace page or setting up a Jamendo account.

    Regarding “information wants to be free”: Information, in this case music records, has become so widespread that it is worthless.

    Film production is istill another matter as it takes major moneys to make some films, so film studios are still necessary for backing. Even so, equipment and software are always getting better and cheaper and amature filmmaking can now flourish. The film studios suffer from free information and need to price their DVDs and movie tickets accordingly as well. People will pay for quality in a DVD but it’s hard to justify $30 for something I can click and obtain for free. Then again, people who aren’t paying for these movies now probably weren’t going to buy them in the first place.

    The upside to all of this is that we’ll hopefully get higher quality intellectual products as the “banks” (film & record companies) are forced to be more selective about what risks (movie/music ventures) they take on.

  118. Daniel says:

    What about people who have no interest in downloading music or movies, will they also have to pay this extra tax on top of their internet costs???

    The real problem is that this industrialized model of production is out of date. It’s in an “interregnum”, as you’d call it, Mr. Taplin. The cost of producing a record is almost nothing now that hardware and software are widespread and cheaply available. A record company is no longer necessary to financially back artists. Artists can now do their own distribution and advertising just by creating a myspace page or setting up a Jamendo account.

    Regarding “information wants to be free”: Information, in this case music records, has become so widespread that it is worthless.

    Film production is istill another matter as it takes major moneys to make some films, so film studios are still necessary for backing. Even so, equipment and software are always getting better and cheaper and amature filmmaking can now flourish. The film studios suffer from free information and need to price their DVDs and movie tickets accordingly as well. People will pay for quality in a DVD but it’s hard to justify $30 for something I can click and obtain for free. Then again, people who aren’t paying for these movies now probably weren’t going to buy them in the first place.

    The upside to all of this is that we’ll hopefully get higher quality intellectual products as the “banks” (film & record companies) are forced to be more selective about what risks (movie/music ventures) they take on.

  119. Daniel says:

    What about people who have no interest in downloading music or movies, will they also have to pay this extra tax on top of their internet costs???

    The real problem is that this industrialized model of production is out of date. It’s in an “interregnum”, as you’d call it, Mr. Taplin. The cost of producing a record is almost nothing now that hardware and software are widespread and cheaply available. A record company is no longer necessary to financially back artists. Artists can now do their own distribution and advertising just by creating a myspace page or setting up a Jamendo account.

    Regarding “information wants to be free”: Information, in this case music records, has become so widespread that it is worthless.

    Film production is istill another matter as it takes major moneys to make some films, so film studios are still necessary for backing. Even so, equipment and software are always getting better and cheaper and amature filmmaking can now flourish. The film studios suffer from free information and need to price their DVDs and movie tickets accordingly as well. People will pay for quality in a DVD but it’s hard to justify $30 for something I can click and obtain for free. Then again, people who aren’t paying for these movies now probably weren’t going to buy them in the first place.

    The upside to all of this is that we’ll hopefully get higher quality intellectual products as the “banks” (film & record companies) are forced to be more selective about what risks (movie/music ventures) they take on.

  120. Tom Wilmot says:

    Anders:

    For the most part (and yes, there are exceptions in the reproduction/poster/glicee) market, visual artists DO only get paid once for their work.

    Because of the “one off” nature of a painting or a sculpture that is not cast, occasionally, that item rises in value and then you get into a whole ‘nother realm of art and commerce.

    While I don’t think that it ever will be resolved without poisoning the well, over the years, especially during the 90’s when gallery art became a HUGE investment pot, there were a number of attempts to try and get some legislation drafted that would allow artists or their estates to profit from the resale of their work.

    On the one hand, you have the classic story of Van Gogh unable to sell a single canvas during his lifetime and then having Portrait of Doctor Gachet auction off for $82mil – on the other, you have the point of why Van Gogh was hanging out with a bunch of crows in Arles and asking Theo for money on a regular basis. If you’re in it for profit, art is probably not a good career choice.

    “Making a living” in creative endeavors has been problematic through history. On the one hand, guys like Leonardo, Bach and Bernini existed through patrons, on the other, fellows like Vermeer ran taverns and painted when they had a chance.

    While I can’t speak for the other folks on this board, I would venture to guess that being able to make a living doing what you love is the ideal, but you’re going to keep doing what you love, regardless.

    What blows monkey chunks is the exploitation of creativity – I don’t care if it’s pirating films or music, creative accounting when it comes to paying royalties or club owners that short the band on the door count – there needs to be a level of ethical understanding that just because it’s “creative” it doesn’t give everyone else license to screw you over.

  121. Tom Wilmot says:

    Anders:

    For the most part (and yes, there are exceptions in the reproduction/poster/glicee) market, visual artists DO only get paid once for their work.

    Because of the “one off” nature of a painting or a sculpture that is not cast, occasionally, that item rises in value and then you get into a whole ‘nother realm of art and commerce.

    While I don’t think that it ever will be resolved without poisoning the well, over the years, especially during the 90’s when gallery art became a HUGE investment pot, there were a number of attempts to try and get some legislation drafted that would allow artists or their estates to profit from the resale of their work.

    On the one hand, you have the classic story of Van Gogh unable to sell a single canvas during his lifetime and then having Portrait of Doctor Gachet auction off for $82mil – on the other, you have the point of why Van Gogh was hanging out with a bunch of crows in Arles and asking Theo for money on a regular basis. If you’re in it for profit, art is probably not a good career choice.

    “Making a living” in creative endeavors has been problematic through history. On the one hand, guys like Leonardo, Bach and Bernini existed through patrons, on the other, fellows like Vermeer ran taverns and painted when they had a chance.

    While I can’t speak for the other folks on this board, I would venture to guess that being able to make a living doing what you love is the ideal, but you’re going to keep doing what you love, regardless.

    What blows monkey chunks is the exploitation of creativity – I don’t care if it’s pirating films or music, creative accounting when it comes to paying royalties or club owners that short the band on the door count – there needs to be a level of ethical understanding that just because it’s “creative” it doesn’t give everyone else license to screw you over.

  122. Tom Wilmot says:

    Anders:

    For the most part (and yes, there are exceptions in the reproduction/poster/glicee) market, visual artists DO only get paid once for their work.

    Because of the “one off” nature of a painting or a sculpture that is not cast, occasionally, that item rises in value and then you get into a whole ‘nother realm of art and commerce.

    While I don’t think that it ever will be resolved without poisoning the well, over the years, especially during the 90’s when gallery art became a HUGE investment pot, there were a number of attempts to try and get some legislation drafted that would allow artists or their estates to profit from the resale of their work.

    On the one hand, you have the classic story of Van Gogh unable to sell a single canvas during his lifetime and then having Portrait of Doctor Gachet auction off for $82mil – on the other, you have the point of why Van Gogh was hanging out with a bunch of crows in Arles and asking Theo for money on a regular basis. If you’re in it for profit, art is probably not a good career choice.

    “Making a living” in creative endeavors has been problematic through history. On the one hand, guys like Leonardo, Bach and Bernini existed through patrons, on the other, fellows like Vermeer ran taverns and painted when they had a chance.

    While I can’t speak for the other folks on this board, I would venture to guess that being able to make a living doing what you love is the ideal, but you’re going to keep doing what you love, regardless.

    What blows monkey chunks is the exploitation of creativity – I don’t care if it’s pirating films or music, creative accounting when it comes to paying royalties or club owners that short the band on the door count – there needs to be a level of ethical understanding that just because it’s “creative” it doesn’t give everyone else license to screw you over.

  123. Tom Wilmot says:

    Daniel: “The upside to all of this is that we’ll hopefully get higher quality intellectual products as the “banks” (film & record companies) are forced to be more selective about what risks (movie/music ventures) they take on.”

    Top Ten Box Office Sales for 2008
    1) The Dark Knight
    2) Iron Man
    3) Indiana Jones and the Yda yada yada
    4) Hancock
    5) Wall-E
    6) Kung Fu Panda
    7) Madagascar 2
    8) Twilight
    9) Quantum of Solace
    10) Horton Hears a Who!

    So, we have 2 movies based on comic books, 2 franchise pictures, 4 computer animation movies, 1 hope to be franchise picture and one that actually had an original script but was dependent on star power.

    I wouldn’t hold my breath for “higher quality intellectual products” any time soon.

  124. Tom Wilmot says:

    Daniel: “The upside to all of this is that we’ll hopefully get higher quality intellectual products as the “banks” (film & record companies) are forced to be more selective about what risks (movie/music ventures) they take on.”

    Top Ten Box Office Sales for 2008
    1) The Dark Knight
    2) Iron Man
    3) Indiana Jones and the Yda yada yada
    4) Hancock
    5) Wall-E
    6) Kung Fu Panda
    7) Madagascar 2
    8) Twilight
    9) Quantum of Solace
    10) Horton Hears a Who!

    So, we have 2 movies based on comic books, 2 franchise pictures, 4 computer animation movies, 1 hope to be franchise picture and one that actually had an original script but was dependent on star power.

    I wouldn’t hold my breath for “higher quality intellectual products” any time soon.

  125. Rick Turner says:

    “What about people who have no interest in downloading music or movies, will they also have to pay this extra tax on top of their internet costs???” quoted from Daniel…

    Well, Daniel, you currently pay a hidden “tax” every time you go into a store or other venue where there is canned music playing in the background. Ditto for if you ever go out to hear live music. Ditto if you listen to the radio, though there your “tax” is having to listen either to ads or pledge drives. All I/we are saying is that some sort of equivalent be applied to this new medium of the Internet. Yeah, it freaks people out because of the wild west nature of the Internet and how everybody thinks it’s free and a new paradigm and all that. That’s the folly of unexamined independence. You’re not independent, and some folks would like to be paid for what they do.

  126. Rick Turner says:

    “What about people who have no interest in downloading music or movies, will they also have to pay this extra tax on top of their internet costs???” quoted from Daniel…

    Well, Daniel, you currently pay a hidden “tax” every time you go into a store or other venue where there is canned music playing in the background. Ditto for if you ever go out to hear live music. Ditto if you listen to the radio, though there your “tax” is having to listen either to ads or pledge drives. All I/we are saying is that some sort of equivalent be applied to this new medium of the Internet. Yeah, it freaks people out because of the wild west nature of the Internet and how everybody thinks it’s free and a new paradigm and all that. That’s the folly of unexamined independence. You’re not independent, and some folks would like to be paid for what they do.

  127. Rick Turner says:

    “What about people who have no interest in downloading music or movies, will they also have to pay this extra tax on top of their internet costs???” quoted from Daniel…

    Well, Daniel, you currently pay a hidden “tax” every time you go into a store or other venue where there is canned music playing in the background. Ditto for if you ever go out to hear live music. Ditto if you listen to the radio, though there your “tax” is having to listen either to ads or pledge drives. All I/we are saying is that some sort of equivalent be applied to this new medium of the Internet. Yeah, it freaks people out because of the wild west nature of the Internet and how everybody thinks it’s free and a new paradigm and all that. That’s the folly of unexamined independence. You’re not independent, and some folks would like to be paid for what they do.

  128. Rick Turner says:

    “What about people who have no interest in downloading music or movies, will they also have to pay this extra tax on top of their internet costs???” quoted from Daniel…

    Well, Daniel, you currently pay a hidden “tax” every time you go into a store or other venue where there is canned music playing in the background. Ditto for if you ever go out to hear live music. Ditto if you listen to the radio, though there your “tax” is having to listen either to ads or pledge drives. All I/we are saying is that some sort of equivalent be applied to this new medium of the Internet. Yeah, it freaks people out because of the wild west nature of the Internet and how everybody thinks it’s free and a new paradigm and all that. That’s the folly of unexamined independence. You’re not independent, and some folks would like to be paid for what they do.

  129. Rick Turner says:

    Here’s another thought. Do you rip CDs for other people?

    I don’t. I won’t. If I want to give music to someone, I buy it so the artist gets something. I love buying CDs directly from artists at gigs. That way they get the lion’s share of the dough, but I also have no problem buying new or used CDs in stores so I know that the artist got paid at some point. I also refuse to abuse guest list privileges at gigs. If the artist offers, then I’m happy to be on a guest list, but I never, never hustle an artist for that. Often enough I pay to get in AND am on the back stage list. I believe in supporting the artists who support me and who make the music I love to listen to.

    I was talking about this subject with Jackson Browne one day, and for him to play the Wiltern or the Universal (or whatever the damned place is called now…) is at best a break-even affair because of the intense pressure for comps. The accountant’s lawyer’s pool boy plus three, etc…
    It made me think that the way to run a club is to charge everyone…even the staff, even the club owners, even the band and crew…to get in. Those who actually work get a bonus that covers admission, but everybody pays to get in the door.

  130. Rick Turner says:

    Here’s another thought. Do you rip CDs for other people?

    I don’t. I won’t. If I want to give music to someone, I buy it so the artist gets something. I love buying CDs directly from artists at gigs. That way they get the lion’s share of the dough, but I also have no problem buying new or used CDs in stores so I know that the artist got paid at some point. I also refuse to abuse guest list privileges at gigs. If the artist offers, then I’m happy to be on a guest list, but I never, never hustle an artist for that. Often enough I pay to get in AND am on the back stage list. I believe in supporting the artists who support me and who make the music I love to listen to.

    I was talking about this subject with Jackson Browne one day, and for him to play the Wiltern or the Universal (or whatever the damned place is called now…) is at best a break-even affair because of the intense pressure for comps. The accountant’s lawyer’s pool boy plus three, etc…
    It made me think that the way to run a club is to charge everyone…even the staff, even the club owners, even the band and crew…to get in. Those who actually work get a bonus that covers admission, but everybody pays to get in the door.

  131. Rick Turner says:

    Here’s another thought. Do you rip CDs for other people?

    I don’t. I won’t. If I want to give music to someone, I buy it so the artist gets something. I love buying CDs directly from artists at gigs. That way they get the lion’s share of the dough, but I also have no problem buying new or used CDs in stores so I know that the artist got paid at some point. I also refuse to abuse guest list privileges at gigs. If the artist offers, then I’m happy to be on a guest list, but I never, never hustle an artist for that. Often enough I pay to get in AND am on the back stage list. I believe in supporting the artists who support me and who make the music I love to listen to.

    I was talking about this subject with Jackson Browne one day, and for him to play the Wiltern or the Universal (or whatever the damned place is called now…) is at best a break-even affair because of the intense pressure for comps. The accountant’s lawyer’s pool boy plus three, etc…
    It made me think that the way to run a club is to charge everyone…even the staff, even the club owners, even the band and crew…to get in. Those who actually work get a bonus that covers admission, but everybody pays to get in the door.

  132. Rick Turner says:

    Here’s another thought. Do you rip CDs for other people?

    I don’t. I won’t. If I want to give music to someone, I buy it so the artist gets something. I love buying CDs directly from artists at gigs. That way they get the lion’s share of the dough, but I also have no problem buying new or used CDs in stores so I know that the artist got paid at some point. I also refuse to abuse guest list privileges at gigs. If the artist offers, then I’m happy to be on a guest list, but I never, never hustle an artist for that. Often enough I pay to get in AND am on the back stage list. I believe in supporting the artists who support me and who make the music I love to listen to.

    I was talking about this subject with Jackson Browne one day, and for him to play the Wiltern or the Universal (or whatever the damned place is called now…) is at best a break-even affair because of the intense pressure for comps. The accountant’s lawyer’s pool boy plus three, etc…
    It made me think that the way to run a club is to charge everyone…even the staff, even the club owners, even the band and crew…to get in. Those who actually work get a bonus that covers admission, but everybody pays to get in the door.

  133. T Bone Burnett says:

    ” The cost of producing a record is almost nothing now that hardware and software are widespread and cheaply available. A record company is no longer necessary to financially back artists. Artists can now do their own distribution and advertising just by creating a myspace page or setting up a Jamendo account.”

    That is not really true. The cost of producing a record with the same care with which pre-digital era records were made is significantly more than it was then.

    It is true that one can make a record for nothing now. One could make a record for nothing in the fifties, as well, but at the time there was a notion of the caliber of the recording. No artist, at the moment, has the infrastructure necessary to release and keep track of a record, nor wants to. It is not that simple and a full time job for a lot of people. I do know what you mean, though.

    “Regarding ‘information wants to be free’: Information, in this case music records, has become so widespread that it is worthless.”

    That is true in that way of looking at it. Music as it is most widely distributed is for all intents and purposes, worthless as a commodity. Just as a Zerox of a Polaroid of a photograph of a painting has little value. (And, for other reasons as well.) Art and music and all that, however, are not information, and should not be categorized as such.

  134. T Bone Burnett says:

    ” The cost of producing a record is almost nothing now that hardware and software are widespread and cheaply available. A record company is no longer necessary to financially back artists. Artists can now do their own distribution and advertising just by creating a myspace page or setting up a Jamendo account.”

    That is not really true. The cost of producing a record with the same care with which pre-digital era records were made is significantly more than it was then.

    It is true that one can make a record for nothing now. One could make a record for nothing in the fifties, as well, but at the time there was a notion of the caliber of the recording. No artist, at the moment, has the infrastructure necessary to release and keep track of a record, nor wants to. It is not that simple and a full time job for a lot of people. I do know what you mean, though.

    “Regarding ‘information wants to be free’: Information, in this case music records, has become so widespread that it is worthless.”

    That is true in that way of looking at it. Music as it is most widely distributed is for all intents and purposes, worthless as a commodity. Just as a Zerox of a Polaroid of a photograph of a painting has little value. (And, for other reasons as well.) Art and music and all that, however, are not information, and should not be categorized as such.

  135. T Bone Burnett says:

    ” The cost of producing a record is almost nothing now that hardware and software are widespread and cheaply available. A record company is no longer necessary to financially back artists. Artists can now do their own distribution and advertising just by creating a myspace page or setting up a Jamendo account.”

    That is not really true. The cost of producing a record with the same care with which pre-digital era records were made is significantly more than it was then.

    It is true that one can make a record for nothing now. One could make a record for nothing in the fifties, as well, but at the time there was a notion of the caliber of the recording. No artist, at the moment, has the infrastructure necessary to release and keep track of a record, nor wants to. It is not that simple and a full time job for a lot of people. I do know what you mean, though.

    “Regarding ‘information wants to be free’: Information, in this case music records, has become so widespread that it is worthless.”

    That is true in that way of looking at it. Music as it is most widely distributed is for all intents and purposes, worthless as a commodity. Just as a Zerox of a Polaroid of a photograph of a painting has little value. (And, for other reasons as well.) Art and music and all that, however, are not information, and should not be categorized as such.

  136. T Bone Burnett says:

    ” The cost of producing a record is almost nothing now that hardware and software are widespread and cheaply available. A record company is no longer necessary to financially back artists. Artists can now do their own distribution and advertising just by creating a myspace page or setting up a Jamendo account.”

    That is not really true. The cost of producing a record with the same care with which pre-digital era records were made is significantly more than it was then.

    It is true that one can make a record for nothing now. One could make a record for nothing in the fifties, as well, but at the time there was a notion of the caliber of the recording. No artist, at the moment, has the infrastructure necessary to release and keep track of a record, nor wants to. It is not that simple and a full time job for a lot of people. I do know what you mean, though.

    “Regarding ‘information wants to be free’: Information, in this case music records, has become so widespread that it is worthless.”

    That is true in that way of looking at it. Music as it is most widely distributed is for all intents and purposes, worthless as a commodity. Just as a Zerox of a Polaroid of a photograph of a painting has little value. (And, for other reasons as well.) Art and music and all that, however, are not information, and should not be categorized as such.

  137. Tom Wilmot says:

    Mr. Burnett:

    Are you implying that mp3’s compressed at 96kbs AREN’T friggin sonically amazing?

  138. Tom Wilmot says:

    Mr. Burnett:

    Are you implying that mp3’s compressed at 96kbs AREN’T friggin sonically amazing?

  139. Tom Wilmot says:

    Mr. Burnett:

    Are you implying that mp3’s compressed at 96kbs AREN’T friggin sonically amazing?

  140. T Bone Burnett says:

    Tom Wilmot- I would say that. Sonically, I prefer cassettes to CDs.

  141. T Bone Burnett says:

    Tom Wilmot- I would say that. Sonically, I prefer cassettes to CDs.

  142. T Bone Burnett says:

    Tom Wilmot- I would say that. Sonically, I prefer cassettes to CDs.

  143. len says:

    The problem, Tom, as I think everyone knows, is that we are a pirate nation and always have been and are emulated around the world. That is, No Money No Thrills and No Pay Without Provocation. In my experience, there is a wide variation among club owners for pay at the end of the night, but generally they do or if it is a door gig, our man is on the door. The west coast where pay to play happens is a different region.

    Unfortunately, the only defense against the monkey chunks tends to be having your own monkeys: lawyers, accountants, goombahs. IOW, what I think the goal of changing the system should be, and Jon’s suggestion is a step in that direction, is to remove the need for force in collections. I’m not an iTunes fan because it rebuilt the filtering system of middle men, but the idea is right because digital downloads from licensed sources means we can get what we have never gotten from the old school and that is, transparent accounting.

    For me personally, it isn’t that relevant but I understand precisely why it is for T-Bone, Rick and their colleagues. They dedicated their lives to the quality of their work, and the truth is that with rare exceptions, weekend warriors, the Sultans of Swing can’t provide that quality.

    Yes, the cost of recording has dropped, yes the cost of distribution has come down, and yes we have lots of new toys to improve bad performances, but it comes down to the power of the hand, the eye and the heart over the hours of practice put in. Only a few can or will do what is necessary because otherwise “Harry doesn’t mind if he doesn’t make the scene. He’s got a day time job. He’s doing alright.” But that won’t work if you really want to hear Krauss and Plant blended together as only a professional master producers with decades of experience can do. The board man, the grip, the guitar tech, the girl driving the Escalade or answering the phone all have to be paid and they are all necessary to the process.

    No Money. No Thrills. It doesn’t matter that these guys will play regardless; it matters if YOU want to be there or get a copy made well. It isn’t cheap and it isn’t free.

  144. len says:

    The problem, Tom, as I think everyone knows, is that we are a pirate nation and always have been and are emulated around the world. That is, No Money No Thrills and No Pay Without Provocation. In my experience, there is a wide variation among club owners for pay at the end of the night, but generally they do or if it is a door gig, our man is on the door. The west coast where pay to play happens is a different region.

    Unfortunately, the only defense against the monkey chunks tends to be having your own monkeys: lawyers, accountants, goombahs. IOW, what I think the goal of changing the system should be, and Jon’s suggestion is a step in that direction, is to remove the need for force in collections. I’m not an iTunes fan because it rebuilt the filtering system of middle men, but the idea is right because digital downloads from licensed sources means we can get what we have never gotten from the old school and that is, transparent accounting.

    For me personally, it isn’t that relevant but I understand precisely why it is for T-Bone, Rick and their colleagues. They dedicated their lives to the quality of their work, and the truth is that with rare exceptions, weekend warriors, the Sultans of Swing can’t provide that quality.

    Yes, the cost of recording has dropped, yes the cost of distribution has come down, and yes we have lots of new toys to improve bad performances, but it comes down to the power of the hand, the eye and the heart over the hours of practice put in. Only a few can or will do what is necessary because otherwise “Harry doesn’t mind if he doesn’t make the scene. He’s got a day time job. He’s doing alright.” But that won’t work if you really want to hear Krauss and Plant blended together as only a professional master producers with decades of experience can do. The board man, the grip, the guitar tech, the girl driving the Escalade or answering the phone all have to be paid and they are all necessary to the process.

    No Money. No Thrills. It doesn’t matter that these guys will play regardless; it matters if YOU want to be there or get a copy made well. It isn’t cheap and it isn’t free.

  145. len says:

    The problem, Tom, as I think everyone knows, is that we are a pirate nation and always have been and are emulated around the world. That is, No Money No Thrills and No Pay Without Provocation. In my experience, there is a wide variation among club owners for pay at the end of the night, but generally they do or if it is a door gig, our man is on the door. The west coast where pay to play happens is a different region.

    Unfortunately, the only defense against the monkey chunks tends to be having your own monkeys: lawyers, accountants, goombahs. IOW, what I think the goal of changing the system should be, and Jon’s suggestion is a step in that direction, is to remove the need for force in collections. I’m not an iTunes fan because it rebuilt the filtering system of middle men, but the idea is right because digital downloads from licensed sources means we can get what we have never gotten from the old school and that is, transparent accounting.

    For me personally, it isn’t that relevant but I understand precisely why it is for T-Bone, Rick and their colleagues. They dedicated their lives to the quality of their work, and the truth is that with rare exceptions, weekend warriors, the Sultans of Swing can’t provide that quality.

    Yes, the cost of recording has dropped, yes the cost of distribution has come down, and yes we have lots of new toys to improve bad performances, but it comes down to the power of the hand, the eye and the heart over the hours of practice put in. Only a few can or will do what is necessary because otherwise “Harry doesn’t mind if he doesn’t make the scene. He’s got a day time job. He’s doing alright.” But that won’t work if you really want to hear Krauss and Plant blended together as only a professional master producers with decades of experience can do. The board man, the grip, the guitar tech, the girl driving the Escalade or answering the phone all have to be paid and they are all necessary to the process.

    No Money. No Thrills. It doesn’t matter that these guys will play regardless; it matters if YOU want to be there or get a copy made well. It isn’t cheap and it isn’t free.

  146. Armand Asante says:

    T-Bone:

    The house in my example was a real house – not a metaphor I cooked up like you seem to with your Starbucks example. It is NOT irrelevant. I presented a realistic situation with a realistic house and a realistic architect.

    If someone designs a good enough house, then other people should be able to copy those designs to build awesome houses for everybody else.
    Without having to enter litigation or pay astronomical fees (or perhaps not even being allowed to build one in the first place).
    That is my opinion of how the world should be.
    And I’ve yet to hear one good argument (not hyperbole) why it shouldn’t be so.

    I did not suggest people move into your home (actual property) or invading your privacy (at the moment, copyright concerns are actually pushing ISP’s to invade your privacy – not the other way around). You’re all over the place.

    Also, I’m glad you brought history (and the admission that art is abstract) into the fold.
    Those early human artists in Africa did not hold intellectual property on their art. They only held as property the artifacts themselves.
    The abstract remained abstract.
    Other humans were ALLOWED to mimic and copy and enhance upon this early art until it evolved into this awesome thing it is today.
    We ALL benefit from the lack of intellectual property in those early days.

    Imagine if Shakespeare’s Hamlet was still under copyright – we would never be privy to Tom Stoppard’s Rozencrantz and Guildenstern are Dead.
    Hell, we would probably not be privy to Hamlet himself, as the costs of licensing would enter many production houses’ considerations of putting on that play.

    My wish is to give back to our children and our culture those common rights again – to allow anyone to create art freely and to be able to build upon the art that is already here (be it for artistic or commercial or political or whatever consideration). Without the specter of commercial concern and litigation hanging needlessly over their heads.

    As you’ve said – art is abstract.
    Why in the world would the abstract be regarded as property?
    How can we even force the abstract to conform to our idea of property?
    And more importantly – what do we, as a society, have to gain from doing so?
    What we have to lose is painfully obvious…

  147. Armand Asante says:

    T-Bone:

    The house in my example was a real house – not a metaphor I cooked up like you seem to with your Starbucks example. It is NOT irrelevant. I presented a realistic situation with a realistic house and a realistic architect.

    If someone designs a good enough house, then other people should be able to copy those designs to build awesome houses for everybody else.
    Without having to enter litigation or pay astronomical fees (or perhaps not even being allowed to build one in the first place).
    That is my opinion of how the world should be.
    And I’ve yet to hear one good argument (not hyperbole) why it shouldn’t be so.

    I did not suggest people move into your home (actual property) or invading your privacy (at the moment, copyright concerns are actually pushing ISP’s to invade your privacy – not the other way around). You’re all over the place.

    Also, I’m glad you brought history (and the admission that art is abstract) into the fold.
    Those early human artists in Africa did not hold intellectual property on their art. They only held as property the artifacts themselves.
    The abstract remained abstract.
    Other humans were ALLOWED to mimic and copy and enhance upon this early art until it evolved into this awesome thing it is today.
    We ALL benefit from the lack of intellectual property in those early days.

    Imagine if Shakespeare’s Hamlet was still under copyright – we would never be privy to Tom Stoppard’s Rozencrantz and Guildenstern are Dead.
    Hell, we would probably not be privy to Hamlet himself, as the costs of licensing would enter many production houses’ considerations of putting on that play.

    My wish is to give back to our children and our culture those common rights again – to allow anyone to create art freely and to be able to build upon the art that is already here (be it for artistic or commercial or political or whatever consideration). Without the specter of commercial concern and litigation hanging needlessly over their heads.

    As you’ve said – art is abstract.
    Why in the world would the abstract be regarded as property?
    How can we even force the abstract to conform to our idea of property?
    And more importantly – what do we, as a society, have to gain from doing so?
    What we have to lose is painfully obvious…

  148. Armand Asante says:

    T-Bone:

    The house in my example was a real house – not a metaphor I cooked up like you seem to with your Starbucks example. It is NOT irrelevant. I presented a realistic situation with a realistic house and a realistic architect.

    If someone designs a good enough house, then other people should be able to copy those designs to build awesome houses for everybody else.
    Without having to enter litigation or pay astronomical fees (or perhaps not even being allowed to build one in the first place).
    That is my opinion of how the world should be.
    And I’ve yet to hear one good argument (not hyperbole) why it shouldn’t be so.

    I did not suggest people move into your home (actual property) or invading your privacy (at the moment, copyright concerns are actually pushing ISP’s to invade your privacy – not the other way around). You’re all over the place.

    Also, I’m glad you brought history (and the admission that art is abstract) into the fold.
    Those early human artists in Africa did not hold intellectual property on their art. They only held as property the artifacts themselves.
    The abstract remained abstract.
    Other humans were ALLOWED to mimic and copy and enhance upon this early art until it evolved into this awesome thing it is today.
    We ALL benefit from the lack of intellectual property in those early days.

    Imagine if Shakespeare’s Hamlet was still under copyright – we would never be privy to Tom Stoppard’s Rozencrantz and Guildenstern are Dead.
    Hell, we would probably not be privy to Hamlet himself, as the costs of licensing would enter many production houses’ considerations of putting on that play.

    My wish is to give back to our children and our culture those common rights again – to allow anyone to create art freely and to be able to build upon the art that is already here (be it for artistic or commercial or political or whatever consideration). Without the specter of commercial concern and litigation hanging needlessly over their heads.

    As you’ve said – art is abstract.
    Why in the world would the abstract be regarded as property?
    How can we even force the abstract to conform to our idea of property?
    And more importantly – what do we, as a society, have to gain from doing so?
    What we have to lose is painfully obvious…

  149. Armand Asante says:

    T-Bone:

    The house in my example was a real house – not a metaphor I cooked up like you seem to with your Starbucks example. It is NOT irrelevant. I presented a realistic situation with a realistic house and a realistic architect.

    If someone designs a good enough house, then other people should be able to copy those designs to build awesome houses for everybody else.
    Without having to enter litigation or pay astronomical fees (or perhaps not even being allowed to build one in the first place).
    That is my opinion of how the world should be.
    And I’ve yet to hear one good argument (not hyperbole) why it shouldn’t be so.

    I did not suggest people move into your home (actual property) or invading your privacy (at the moment, copyright concerns are actually pushing ISP’s to invade your privacy – not the other way around). You’re all over the place.

    Also, I’m glad you brought history (and the admission that art is abstract) into the fold.
    Those early human artists in Africa did not hold intellectual property on their art. They only held as property the artifacts themselves.
    The abstract remained abstract.
    Other humans were ALLOWED to mimic and copy and enhance upon this early art until it evolved into this awesome thing it is today.
    We ALL benefit from the lack of intellectual property in those early days.

    Imagine if Shakespeare’s Hamlet was still under copyright – we would never be privy to Tom Stoppard’s Rozencrantz and Guildenstern are Dead.
    Hell, we would probably not be privy to Hamlet himself, as the costs of licensing would enter many production houses’ considerations of putting on that play.

    My wish is to give back to our children and our culture those common rights again – to allow anyone to create art freely and to be able to build upon the art that is already here (be it for artistic or commercial or political or whatever consideration). Without the specter of commercial concern and litigation hanging needlessly over their heads.

    As you’ve said – art is abstract.
    Why in the world would the abstract be regarded as property?
    How can we even force the abstract to conform to our idea of property?
    And more importantly – what do we, as a society, have to gain from doing so?
    What we have to lose is painfully obvious…

  150. Alex Bowles says:

    @TBB

    You put your finger on the crux of the problem (or one of the major ones anyway) when you point out that

    No artist, at the moment, has the infrastructure necessary to release and keep track of a record, nor wants to. It is not that simple and a full time job for a lot of people. I do know what you mean, though.

    This is exactly the reason why copyright law is far more of a hurt than a help to independent, amateur, and otherwise non-commercial artists.

    And because copyright law is a component of civil law instead of criminal law, police agencies can’t be expected to prevent or investigate abuses. The costs of enforcement are, in large part, born by the copyright owner.

    In short, copyright, as a practical matter, can only be maintained by the very, very rich. This is less so is more confined arenas like the museum world, but in terms of what it takes to maintain a copyright on popular culture among the general public, ‘infrastructure’ is the operative word. As in the kind of infrastructure that requires its managers to be listed on national stock exchanges.

    Putting aside all criticisms of the efects, what I find remarkable is that the basic law still covers everyone under a default ‘all rights reserved’ scheme. Currently, my doodles on a cocktail napkin are afforded the same level of legal protection as ‘The Dark Knight”. This seems crazy – especially when it’s manifestly clear that I’ve got no effective way of enforcing my rights.

    So forgetting, for a moment, about what the ideal arrangement is, and considering only what actually works, it seems an initial step in copyright reform would be making it an opt-in system, where copyright registration isn’t simply the formality that gives you standing to pursue your claims in court, but the basis for protection itself.

    Unfortunately, art can’t be considered effectively, or even fairly, in solely practical terms. I share a deep appreciation for the notion that art done for money alone isn’t art at all (unless you’re Jeff Koons, and have gotten entirely meta about this situation).

    As you say, this is something that people just do. Creative works are like a forest – an ecosystem that just grows by itself. I recognize that real artists have an easier time not breathing than not creating (something that leads many to early graves, I’m sure). I find the idea that this output can simply be ‘harvested’ abhorrent – especially when, as you point out, art seems to have played such a critical role in our evolution and survival. And so I recognize that some form of fundamental protection really is necessary. Which is to say, I understand the droit d’auteur as conceived by Rousseau, and recognize this as the idealistic basis for our current law.

    It’s easy to look at groups like the RIAA and the MPAA as being fundamentally stupid, self-destructive monstrosities standing in the way for all that is good and right (see Cory Doctorow for specific details). The contention here is one that’s easy to reduce to good v. evil because the actual people involved come across as generally unprincipled and abusive, even if they are, legally, in the right.

    The larger issue is harder, as it pits right against right. Reasonable enforceability is a bedrock requirement of legitimate law. At the same time Rousseau’s view has enormous merit – not to mention a deep concern with plight of artists that are simultaneously relied on and exploited by the societies they live in.

    At this stage, I’m wondering if it’s even possible to divine what the ‘right’ approach is – especially when we’re living through an Interregnum, and have a rather unclear sense of the topography that will emerge on the other side.

    In short, I’m wondering if ad hoc and transitory arrangements are the only effective ways to strike a balance now, with the goal of determining, by steady experiment, what arrangements can actually work in a legally and morally sustainable fashion.

    I’ve actually started a blog to explore these exact issues, and the ways that creative producers can remain economically viable while generating new and mutually beneficial alignments between audiences, artists, promoters and distributors.

    In short, it’s about navigating the Interregnum. I’ve called it Onward through the Fog, for all the obvious reasons.

  151. Alex Bowles says:

    @TBB

    You put your finger on the crux of the problem (or one of the major ones anyway) when you point out that

    No artist, at the moment, has the infrastructure necessary to release and keep track of a record, nor wants to. It is not that simple and a full time job for a lot of people. I do know what you mean, though.

    This is exactly the reason why copyright law is far more of a hurt than a help to independent, amateur, and otherwise non-commercial artists.

    And because copyright law is a component of civil law instead of criminal law, police agencies can’t be expected to prevent or investigate abuses. The costs of enforcement are, in large part, born by the copyright owner.

    In short, copyright, as a practical matter, can only be maintained by the very, very rich. This is less so is more confined arenas like the museum world, but in terms of what it takes to maintain a copyright on popular culture among the general public, ‘infrastructure’ is the operative word. As in the kind of infrastructure that requires its managers to be listed on national stock exchanges.

    Putting aside all criticisms of the efects, what I find remarkable is that the basic law still covers everyone under a default ‘all rights reserved’ scheme. Currently, my doodles on a cocktail napkin are afforded the same level of legal protection as ‘The Dark Knight”. This seems crazy – especially when it’s manifestly clear that I’ve got no effective way of enforcing my rights.

    So forgetting, for a moment, about what the ideal arrangement is, and considering only what actually works, it seems an initial step in copyright reform would be making it an opt-in system, where copyright registration isn’t simply the formality that gives you standing to pursue your claims in court, but the basis for protection itself.

    Unfortunately, art can’t be considered effectively, or even fairly, in solely practical terms. I share a deep appreciation for the notion that art done for money alone isn’t art at all (unless you’re Jeff Koons, and have gotten entirely meta about this situation).

    As you say, this is something that people just do. Creative works are like a forest – an ecosystem that just grows by itself. I recognize that real artists have an easier time not breathing than not creating (something that leads many to early graves, I’m sure). I find the idea that this output can simply be ‘harvested’ abhorrent – especially when, as you point out, art seems to have played such a critical role in our evolution and survival. And so I recognize that some form of fundamental protection really is necessary. Which is to say, I understand the droit d’auteur as conceived by Rousseau, and recognize this as the idealistic basis for our current law.

    It’s easy to look at groups like the RIAA and the MPAA as being fundamentally stupid, self-destructive monstrosities standing in the way for all that is good and right (see Cory Doctorow for specific details). The contention here is one that’s easy to reduce to good v. evil because the actual people involved come across as generally unprincipled and abusive, even if they are, legally, in the right.

    The larger issue is harder, as it pits right against right. Reasonable enforceability is a bedrock requirement of legitimate law. At the same time Rousseau’s view has enormous merit – not to mention a deep concern with plight of artists that are simultaneously relied on and exploited by the societies they live in.

    At this stage, I’m wondering if it’s even possible to divine what the ‘right’ approach is – especially when we’re living through an Interregnum, and have a rather unclear sense of the topography that will emerge on the other side.

    In short, I’m wondering if ad hoc and transitory arrangements are the only effective ways to strike a balance now, with the goal of determining, by steady experiment, what arrangements can actually work in a legally and morally sustainable fashion.

    I’ve actually started a blog to explore these exact issues, and the ways that creative producers can remain economically viable while generating new and mutually beneficial alignments between audiences, artists, promoters and distributors.

    In short, it’s about navigating the Interregnum. I’ve called it Onward through the Fog, for all the obvious reasons.

  152. Alex Bowles says:

    @TBB

    You put your finger on the crux of the problem (or one of the major ones anyway) when you point out that

    No artist, at the moment, has the infrastructure necessary to release and keep track of a record, nor wants to. It is not that simple and a full time job for a lot of people. I do know what you mean, though.

    This is exactly the reason why copyright law is far more of a hurt than a help to independent, amateur, and otherwise non-commercial artists.

    And because copyright law is a component of civil law instead of criminal law, police agencies can’t be expected to prevent or investigate abuses. The costs of enforcement are, in large part, born by the copyright owner.

    In short, copyright, as a practical matter, can only be maintained by the very, very rich. This is less so is more confined arenas like the museum world, but in terms of what it takes to maintain a copyright on popular culture among the general public, ‘infrastructure’ is the operative word. As in the kind of infrastructure that requires its managers to be listed on national stock exchanges.

    Putting aside all criticisms of the efects, what I find remarkable is that the basic law still covers everyone under a default ‘all rights reserved’ scheme. Currently, my doodles on a cocktail napkin are afforded the same level of legal protection as ‘The Dark Knight”. This seems crazy – especially when it’s manifestly clear that I’ve got no effective way of enforcing my rights.

    So forgetting, for a moment, about what the ideal arrangement is, and considering only what actually works, it seems an initial step in copyright reform would be making it an opt-in system, where copyright registration isn’t simply the formality that gives you standing to pursue your claims in court, but the basis for protection itself.

    Unfortunately, art can’t be considered effectively, or even fairly, in solely practical terms. I share a deep appreciation for the notion that art done for money alone isn’t art at all (unless you’re Jeff Koons, and have gotten entirely meta about this situation).

    As you say, this is something that people just do. Creative works are like a forest – an ecosystem that just grows by itself. I recognize that real artists have an easier time not breathing than not creating (something that leads many to early graves, I’m sure). I find the idea that this output can simply be ‘harvested’ abhorrent – especially when, as you point out, art seems to have played such a critical role in our evolution and survival. And so I recognize that some form of fundamental protection really is necessary. Which is to say, I understand the droit d’auteur as conceived by Rousseau, and recognize this as the idealistic basis for our current law.

    It’s easy to look at groups like the RIAA and the MPAA as being fundamentally stupid, self-destructive monstrosities standing in the way for all that is good and right (see Cory Doctorow for specific details). The contention here is one that’s easy to reduce to good v. evil because the actual people involved come across as generally unprincipled and abusive, even if they are, legally, in the right.

    The larger issue is harder, as it pits right against right. Reasonable enforceability is a bedrock requirement of legitimate law. At the same time Rousseau’s view has enormous merit – not to mention a deep concern with plight of artists that are simultaneously relied on and exploited by the societies they live in.

    At this stage, I’m wondering if it’s even possible to divine what the ‘right’ approach is – especially when we’re living through an Interregnum, and have a rather unclear sense of the topography that will emerge on the other side.

    In short, I’m wondering if ad hoc and transitory arrangements are the only effective ways to strike a balance now, with the goal of determining, by steady experiment, what arrangements can actually work in a legally and morally sustainable fashion.

    I’ve actually started a blog to explore these exact issues, and the ways that creative producers can remain economically viable while generating new and mutually beneficial alignments between audiences, artists, promoters and distributors.

    In short, it’s about navigating the Interregnum. I’ve called it Onward through the Fog, for all the obvious reasons.

  153. Alex Bowles says:

    @TBB

    You put your finger on the crux of the problem (or one of the major ones anyway) when you point out that

    No artist, at the moment, has the infrastructure necessary to release and keep track of a record, nor wants to. It is not that simple and a full time job for a lot of people. I do know what you mean, though.

    This is exactly the reason why copyright law is far more of a hurt than a help to independent, amateur, and otherwise non-commercial artists.

    And because copyright law is a component of civil law instead of criminal law, police agencies can’t be expected to prevent or investigate abuses. The costs of enforcement are, in large part, born by the copyright owner.

    In short, copyright, as a practical matter, can only be maintained by the very, very rich. This is less so is more confined arenas like the museum world, but in terms of what it takes to maintain a copyright on popular culture among the general public, ‘infrastructure’ is the operative word. As in the kind of infrastructure that requires its managers to be listed on national stock exchanges.

    Putting aside all criticisms of the efects, what I find remarkable is that the basic law still covers everyone under a default ‘all rights reserved’ scheme. Currently, my doodles on a cocktail napkin are afforded the same level of legal protection as ‘The Dark Knight”. This seems crazy – especially when it’s manifestly clear that I’ve got no effective way of enforcing my rights.

    So forgetting, for a moment, about what the ideal arrangement is, and considering only what actually works, it seems an initial step in copyright reform would be making it an opt-in system, where copyright registration isn’t simply the formality that gives you standing to pursue your claims in court, but the basis for protection itself.

    Unfortunately, art can’t be considered effectively, or even fairly, in solely practical terms. I share a deep appreciation for the notion that art done for money alone isn’t art at all (unless you’re Jeff Koons, and have gotten entirely meta about this situation).

    As you say, this is something that people just do. Creative works are like a forest – an ecosystem that just grows by itself. I recognize that real artists have an easier time not breathing than not creating (something that leads many to early graves, I’m sure). I find the idea that this output can simply be ‘harvested’ abhorrent – especially when, as you point out, art seems to have played such a critical role in our evolution and survival. And so I recognize that some form of fundamental protection really is necessary. Which is to say, I understand the droit d’auteur as conceived by Rousseau, and recognize this as the idealistic basis for our current law.

    It’s easy to look at groups like the RIAA and the MPAA as being fundamentally stupid, self-destructive monstrosities standing in the way for all that is good and right (see Cory Doctorow for specific details). The contention here is one that’s easy to reduce to good v. evil because the actual people involved come across as generally unprincipled and abusive, even if they are, legally, in the right.

    The larger issue is harder, as it pits right against right. Reasonable enforceability is a bedrock requirement of legitimate law. At the same time Rousseau’s view has enormous merit – not to mention a deep concern with plight of artists that are simultaneously relied on and exploited by the societies they live in.

    At this stage, I’m wondering if it’s even possible to divine what the ‘right’ approach is – especially when we’re living through an Interregnum, and have a rather unclear sense of the topography that will emerge on the other side.

    In short, I’m wondering if ad hoc and transitory arrangements are the only effective ways to strike a balance now, with the goal of determining, by steady experiment, what arrangements can actually work in a legally and morally sustainable fashion.

    I’ve actually started a blog to explore these exact issues, and the ways that creative producers can remain economically viable while generating new and mutually beneficial alignments between audiences, artists, promoters and distributors.

    In short, it’s about navigating the Interregnum. I’ve called it Onward through the Fog, for all the obvious reasons.

  154. len says:

    “…it seems an initial step in copyright reform would be making it an opt-in system, where copyright registration isn’t simply the formality that gives you standing to pursue your claims in court, but the basis for protection itself.”

    That was once the case. Then the law was changed to grant copyright once a ‘fixed version’ was created. Registration is the formality that obligates the government to be a witness in a litigation, but otherwise changing it back would make no difference. The cost or force of collection is the essential problem and this is where the digital media and means can be a huge boon. iTunes, despite some flaws, is a working solution.

    Derivative works: this is where it gets murky. How much of “I Feel Fine” can one lift without violating the copyright? If one samples, none. If one duplicates the feedback sound of the first lick, all of it. If one lifts the chord progression, almost all of it. If one lifts the chord progression and the melody: BZZZT. Paul McCartney talks about how the Beatles and the Beach Boys and the Byrds were lifting sounds from each other, snippets of chord progressions, but also the he and Lennon had explicitly lectured Harrison about the right way to go about that and Harrison erred by going too far with “My Sweet Lord” and Coldplay clearly went over the mark with Joe Satriani.

    In other words, because the boundaries are fuzzy, litigation and negotiation are about the only way one can do it. We’ve experimented a lot in the online world with how to trade on our materials and there is a lot of progress there as Lessig notes. But it is not an open IP world without participation agreements. It can’t be and still expect the best to do their best work.

    Looking at those agreements where they are working is a good place to start. For example, what did it take to get all of those stars on stage with Roy Orbison in the B&W film, not in terms of the copyrights, but use of image, pay for the gig and so on? I dunno, but I don’t think it was done without some up-front agreements.

    I know what we had to do to make it possible for VRML/X3D technology to be IP-unencumbered because I had to help write those agreements. It turns out in the long run that formal participation agreements are the best way to keep things open by understanding what has to be closed first, in that case, how submissions of technical materials can be made for inclusion in the standard to avoid submarine patents. We tried the Ally Ally In Come Free approach and almost sank the ship. There is a balance but it emphasizes transparency and up-front terms and conditions particularly to avoid the appearance of malfeasance. It’s rule number one of collaborative songwriting and problem all collaboration: be clear and transparent about the work conditions and fruits thereof. Don’t assume.

    BTW: what does the technology do for the non-pro?

    1. I can make a much better demo cheaper. A Mark of the Unicorn card is a wonderful thing.

    2. I can keep improving and re-releasing a work, in other words, I can version the music just like it was software. That sort of approach would be death for the work in the professional publishing world for several reasons.

    3. I can scrub and fix mistakes ten years later. Say what you want about the preciousness of the original, if I can fix truly bum notes, I will.

    These are things that are tougher for the pros and raise hell with the concept of the copyright for the audio recording itself. With high professionalism comes some loss of freedom and the obligation to be very clear about the results of working together or contributing.

    I’ve worked on several efforts to do some of what you are talking about on the web. TCB first.

  155. len says:

    “…it seems an initial step in copyright reform would be making it an opt-in system, where copyright registration isn’t simply the formality that gives you standing to pursue your claims in court, but the basis for protection itself.”

    That was once the case. Then the law was changed to grant copyright once a ‘fixed version’ was created. Registration is the formality that obligates the government to be a witness in a litigation, but otherwise changing it back would make no difference. The cost or force of collection is the essential problem and this is where the digital media and means can be a huge boon. iTunes, despite some flaws, is a working solution.

    Derivative works: this is where it gets murky. How much of “I Feel Fine” can one lift without violating the copyright? If one samples, none. If one duplicates the feedback sound of the first lick, all of it. If one lifts the chord progression, almost all of it. If one lifts the chord progression and the melody: BZZZT. Paul McCartney talks about how the Beatles and the Beach Boys and the Byrds were lifting sounds from each other, snippets of chord progressions, but also the he and Lennon had explicitly lectured Harrison about the right way to go about that and Harrison erred by going too far with “My Sweet Lord” and Coldplay clearly went over the mark with Joe Satriani.

    In other words, because the boundaries are fuzzy, litigation and negotiation are about the only way one can do it. We’ve experimented a lot in the online world with how to trade on our materials and there is a lot of progress there as Lessig notes. But it is not an open IP world without participation agreements. It can’t be and still expect the best to do their best work.

    Looking at those agreements where they are working is a good place to start. For example, what did it take to get all of those stars on stage with Roy Orbison in the B&W film, not in terms of the copyrights, but use of image, pay for the gig and so on? I dunno, but I don’t think it was done without some up-front agreements.

    I know what we had to do to make it possible for VRML/X3D technology to be IP-unencumbered because I had to help write those agreements. It turns out in the long run that formal participation agreements are the best way to keep things open by understanding what has to be closed first, in that case, how submissions of technical materials can be made for inclusion in the standard to avoid submarine patents. We tried the Ally Ally In Come Free approach and almost sank the ship. There is a balance but it emphasizes transparency and up-front terms and conditions particularly to avoid the appearance of malfeasance. It’s rule number one of collaborative songwriting and problem all collaboration: be clear and transparent about the work conditions and fruits thereof. Don’t assume.

    BTW: what does the technology do for the non-pro?

    1. I can make a much better demo cheaper. A Mark of the Unicorn card is a wonderful thing.

    2. I can keep improving and re-releasing a work, in other words, I can version the music just like it was software. That sort of approach would be death for the work in the professional publishing world for several reasons.

    3. I can scrub and fix mistakes ten years later. Say what you want about the preciousness of the original, if I can fix truly bum notes, I will.

    These are things that are tougher for the pros and raise hell with the concept of the copyright for the audio recording itself. With high professionalism comes some loss of freedom and the obligation to be very clear about the results of working together or contributing.

    I’ve worked on several efforts to do some of what you are talking about on the web. TCB first.

  156. len says:

    “…it seems an initial step in copyright reform would be making it an opt-in system, where copyright registration isn’t simply the formality that gives you standing to pursue your claims in court, but the basis for protection itself.”

    That was once the case. Then the law was changed to grant copyright once a ‘fixed version’ was created. Registration is the formality that obligates the government to be a witness in a litigation, but otherwise changing it back would make no difference. The cost or force of collection is the essential problem and this is where the digital media and means can be a huge boon. iTunes, despite some flaws, is a working solution.

    Derivative works: this is where it gets murky. How much of “I Feel Fine” can one lift without violating the copyright? If one samples, none. If one duplicates the feedback sound of the first lick, all of it. If one lifts the chord progression, almost all of it. If one lifts the chord progression and the melody: BZZZT. Paul McCartney talks about how the Beatles and the Beach Boys and the Byrds were lifting sounds from each other, snippets of chord progressions, but also the he and Lennon had explicitly lectured Harrison about the right way to go about that and Harrison erred by going too far with “My Sweet Lord” and Coldplay clearly went over the mark with Joe Satriani.

    In other words, because the boundaries are fuzzy, litigation and negotiation are about the only way one can do it. We’ve experimented a lot in the online world with how to trade on our materials and there is a lot of progress there as Lessig notes. But it is not an open IP world without participation agreements. It can’t be and still expect the best to do their best work.

    Looking at those agreements where they are working is a good place to start. For example, what did it take to get all of those stars on stage with Roy Orbison in the B&W film, not in terms of the copyrights, but use of image, pay for the gig and so on? I dunno, but I don’t think it was done without some up-front agreements.

    I know what we had to do to make it possible for VRML/X3D technology to be IP-unencumbered because I had to help write those agreements. It turns out in the long run that formal participation agreements are the best way to keep things open by understanding what has to be closed first, in that case, how submissions of technical materials can be made for inclusion in the standard to avoid submarine patents. We tried the Ally Ally In Come Free approach and almost sank the ship. There is a balance but it emphasizes transparency and up-front terms and conditions particularly to avoid the appearance of malfeasance. It’s rule number one of collaborative songwriting and problem all collaboration: be clear and transparent about the work conditions and fruits thereof. Don’t assume.

    BTW: what does the technology do for the non-pro?

    1. I can make a much better demo cheaper. A Mark of the Unicorn card is a wonderful thing.

    2. I can keep improving and re-releasing a work, in other words, I can version the music just like it was software. That sort of approach would be death for the work in the professional publishing world for several reasons.

    3. I can scrub and fix mistakes ten years later. Say what you want about the preciousness of the original, if I can fix truly bum notes, I will.

    These are things that are tougher for the pros and raise hell with the concept of the copyright for the audio recording itself. With high professionalism comes some loss of freedom and the obligation to be very clear about the results of working together or contributing.

    I’ve worked on several efforts to do some of what you are talking about on the web. TCB first.

  157. len says:

    “…it seems an initial step in copyright reform would be making it an opt-in system, where copyright registration isn’t simply the formality that gives you standing to pursue your claims in court, but the basis for protection itself.”

    That was once the case. Then the law was changed to grant copyright once a ‘fixed version’ was created. Registration is the formality that obligates the government to be a witness in a litigation, but otherwise changing it back would make no difference. The cost or force of collection is the essential problem and this is where the digital media and means can be a huge boon. iTunes, despite some flaws, is a working solution.

    Derivative works: this is where it gets murky. How much of “I Feel Fine” can one lift without violating the copyright? If one samples, none. If one duplicates the feedback sound of the first lick, all of it. If one lifts the chord progression, almost all of it. If one lifts the chord progression and the melody: BZZZT. Paul McCartney talks about how the Beatles and the Beach Boys and the Byrds were lifting sounds from each other, snippets of chord progressions, but also the he and Lennon had explicitly lectured Harrison about the right way to go about that and Harrison erred by going too far with “My Sweet Lord” and Coldplay clearly went over the mark with Joe Satriani.

    In other words, because the boundaries are fuzzy, litigation and negotiation are about the only way one can do it. We’ve experimented a lot in the online world with how to trade on our materials and there is a lot of progress there as Lessig notes. But it is not an open IP world without participation agreements. It can’t be and still expect the best to do their best work.

    Looking at those agreements where they are working is a good place to start. For example, what did it take to get all of those stars on stage with Roy Orbison in the B&W film, not in terms of the copyrights, but use of image, pay for the gig and so on? I dunno, but I don’t think it was done without some up-front agreements.

    I know what we had to do to make it possible for VRML/X3D technology to be IP-unencumbered because I had to help write those agreements. It turns out in the long run that formal participation agreements are the best way to keep things open by understanding what has to be closed first, in that case, how submissions of technical materials can be made for inclusion in the standard to avoid submarine patents. We tried the Ally Ally In Come Free approach and almost sank the ship. There is a balance but it emphasizes transparency and up-front terms and conditions particularly to avoid the appearance of malfeasance. It’s rule number one of collaborative songwriting and problem all collaboration: be clear and transparent about the work conditions and fruits thereof. Don’t assume.

    BTW: what does the technology do for the non-pro?

    1. I can make a much better demo cheaper. A Mark of the Unicorn card is a wonderful thing.

    2. I can keep improving and re-releasing a work, in other words, I can version the music just like it was software. That sort of approach would be death for the work in the professional publishing world for several reasons.

    3. I can scrub and fix mistakes ten years later. Say what you want about the preciousness of the original, if I can fix truly bum notes, I will.

    These are things that are tougher for the pros and raise hell with the concept of the copyright for the audio recording itself. With high professionalism comes some loss of freedom and the obligation to be very clear about the results of working together or contributing.

    I’ve worked on several efforts to do some of what you are talking about on the web. TCB first.

  158. T Bone Burnett says:

    Armand- One cannot ask why in the world the abstract would be regarded as property without asking the same question of everything else.

    You have not understood what I wrote. Really. That doesn’t make you a bad person.

    You have me at a disadvantage. What do you do with your time?

    Say you had an idea for a film. Say you told it to your friend, and he made the film without including you. The film would not have existed without your idea. Other people have benefitted from your idea while you have not.

    Say you saw a piece of land that was a place you wanted very much to buy. You take your friend out to see it, and that afternoon he buys it.

    Say you were a film actor. Say you acted in a film. Say someone took that performance, that character and put it in another film. He didn’t pay you or credit you. Or, worse, he credits you and sells the film using your name.

    I can’t imagine you would like that sort of thing all that much.

    (Anyway, the discussion of the building of the house is an entirely different matter.)

  159. T Bone Burnett says:

    Armand- One cannot ask why in the world the abstract would be regarded as property without asking the same question of everything else.

    You have not understood what I wrote. Really. That doesn’t make you a bad person.

    You have me at a disadvantage. What do you do with your time?

    Say you had an idea for a film. Say you told it to your friend, and he made the film without including you. The film would not have existed without your idea. Other people have benefitted from your idea while you have not.

    Say you saw a piece of land that was a place you wanted very much to buy. You take your friend out to see it, and that afternoon he buys it.

    Say you were a film actor. Say you acted in a film. Say someone took that performance, that character and put it in another film. He didn’t pay you or credit you. Or, worse, he credits you and sells the film using your name.

    I can’t imagine you would like that sort of thing all that much.

    (Anyway, the discussion of the building of the house is an entirely different matter.)

  160. T Bone Burnett says:

    Armand- One cannot ask why in the world the abstract would be regarded as property without asking the same question of everything else.

    You have not understood what I wrote. Really. That doesn’t make you a bad person.

    You have me at a disadvantage. What do you do with your time?

    Say you had an idea for a film. Say you told it to your friend, and he made the film without including you. The film would not have existed without your idea. Other people have benefitted from your idea while you have not.

    Say you saw a piece of land that was a place you wanted very much to buy. You take your friend out to see it, and that afternoon he buys it.

    Say you were a film actor. Say you acted in a film. Say someone took that performance, that character and put it in another film. He didn’t pay you or credit you. Or, worse, he credits you and sells the film using your name.

    I can’t imagine you would like that sort of thing all that much.

    (Anyway, the discussion of the building of the house is an entirely different matter.)

  161. Alex Bowles says:

    Len,

    All good notes. My own feeling is that the financial core of any creative enterprise will require a door. It may be actual, it may be virtual, but at some point, there’s a concrete moment in time in which something happens, and for which somebody will have to pay – either as a member of the audience, or as an underwriter operating on behalf of an audience (leaving it and the audience to get square later, on whatever terms – and for whatever recompense – both sides find mutually agreeable).

    I think the problem with pre-internet copyright law in general, and DRM in particular, was that the old door didn’t move, even though the audience did. This degenerated into a food fight almost immediately.

    My view is that nobody can afford to – or even insist upon the ‘right’ to resist change as profound as the emergence of networked culture.

    In other words, everybody – artists, distributors, promoters, and audiences – will have to change the terms of their respective gives and takes if any broadly accepted (i.e. fair, stable, and sustainable) convention is to emerge. In the absence of such a convention, it’s going to be hard to formulate good law.

    Obviously, this is going to be like herding cats – especially since everybody wants the one thing they can’t have: change on their own terms. And because any one of these constituencies can also decide to be a dick by taking without giving, any tentative models that reach a certain, though undetermined scale run the risk of falling into immediate disarray.

    My own feeling is that I’ll be able to develop models for my work that function on a limited of transitory plane, but won’t be able to scale without protection from the law.

    Others will probably figure out the same thing. Eventually, a consensus of what’s generally fair and viable will emerge, along with a set of principles that account for why this is so. At this point (which may be a generation from now) policy makers will be able to codify the rights and responsibilities of each player, so that generally civil creative society can operate without fear from pirates and vandals.

    In the meantime, I think hopes for legal reform will have to be limited to the simple removal of glaringly pre-internet barriers to post-internet innovation. It will be some time before the law can take the second step of settling on something that’s of positive benefit to our age.

  162. Alex Bowles says:

    Len,

    All good notes. My own feeling is that the financial core of any creative enterprise will require a door. It may be actual, it may be virtual, but at some point, there’s a concrete moment in time in which something happens, and for which somebody will have to pay – either as a member of the audience, or as an underwriter operating on behalf of an audience (leaving it and the audience to get square later, on whatever terms – and for whatever recompense – both sides find mutually agreeable).

    I think the problem with pre-internet copyright law in general, and DRM in particular, was that the old door didn’t move, even though the audience did. This degenerated into a food fight almost immediately.

    My view is that nobody can afford to – or even insist upon the ‘right’ to resist change as profound as the emergence of networked culture.

    In other words, everybody – artists, distributors, promoters, and audiences – will have to change the terms of their respective gives and takes if any broadly accepted (i.e. fair, stable, and sustainable) convention is to emerge. In the absence of such a convention, it’s going to be hard to formulate good law.

    Obviously, this is going to be like herding cats – especially since everybody wants the one thing they can’t have: change on their own terms. And because any one of these constituencies can also decide to be a dick by taking without giving, any tentative models that reach a certain, though undetermined scale run the risk of falling into immediate disarray.

    My own feeling is that I’ll be able to develop models for my work that function on a limited of transitory plane, but won’t be able to scale without protection from the law.

    Others will probably figure out the same thing. Eventually, a consensus of what’s generally fair and viable will emerge, along with a set of principles that account for why this is so. At this point (which may be a generation from now) policy makers will be able to codify the rights and responsibilities of each player, so that generally civil creative society can operate without fear from pirates and vandals.

    In the meantime, I think hopes for legal reform will have to be limited to the simple removal of glaringly pre-internet barriers to post-internet innovation. It will be some time before the law can take the second step of settling on something that’s of positive benefit to our age.

  163. Rick Turner says:

    The problem is that the consumers here want free access to the artists’ catalogs. One does wonder how they would feel if their own methods of making a living were challenged so completely by a new technology that made their knowledge nearly worthless.

    I also think that an architect should be paid for each house built to his or her design unless it was a work for hire. Sure, put a copyright or patent style limit on the duration of protection.

    I posted the following little story here a couple of months ago… A friend of mine is an ASCAP enforcer…call him a goon if you like, but he’s a good guy. I asked him one day, “What would it be like to be Bob Dylan and go to sleep at night and wake up in the morning $10,000.00 richer on royalties?” Mike said, “It’s more than that…” And I think that is just fucking fantastic.

  164. len says:

    @rick: If one hits big enough, often enough, it is a LOT of money. Curly Putman once told me what Green Green Grass of Home was worth a year and I’d be happy to live on that. Again, the problem is the abuse of the system. I’ve seen it done by BMI, ASCAP and the radio stations managers. They can’t do it to Dylan because he has the muscle to push back. How many really do?

    So again, a system that relied a lot less on force and is transparent to all qualified participants is the right one even if it means accounting for five sales or plays of one song from a bongo band in Sheboygan. As long as it is a battle in a pyramid, you can expect ponzi.

    @alex: The simplified point is having a model for agreements that enable participants to know up front and clearly the benefits and obligations of participation. In effect, that is what copyright law is but no one has to sign up. On the other hand, performance organizations are precisely what was created to be where the recording artists, producers, etc., sign up and their function is to collect the royalties. It may be time to look at royalty structures and rethink these in terms of the new technologies, but we have no way to enforce them without collection agencies such as ASCAP and BMI in terms of the mechanical royalties. We have iTunes on its own terms for collecting for sales of copies and some harsh words had to be said to Apple for that to become a bit more fair. There are definitely other ways to get the music out there and artists all over the world are using those, but to get paid, there is no way around the need for participation agreements and collections. What Jon has proposed is a different means of collection and what I fear about that proposal is that it will be rigged the same way airplay mechanicals were rigged for the top artists enabling their producers and labels to benefit by scraping not only what they really earned in terms of play, but also the fractions of time going to the independents where a little means a lot.

    So Gian’s point is valid: it matters a lot how and who can sign up for the monies distributed and the formulas for the shreddin’ the natch. It has to be a transparent system or it will not work and we will be right back here having this same discussion: meet the new boss, same as the old boss.

  165. T Bone Burnett says:

    Jon- What to you think about several of us here sitting down together somewhere? A lot of good notes here. Maybe we should actualize.

  166. len says:

    If I may make one suggestion: in a world built on software, software is the coin of the realm. Some of the changes may be to adopt software means or near likenesses. DRM was such an attempt because the people who crack these are the same people who learned to crack compiled software three decades ago and they’ve developed ways to get around it.

    It may be completely wrong, so I’m just tossing it out there. Sibelius, etc., call home when the software is registered. Songs don’t do that. Software has a kill switch: a license timer. People hate that with music. Software can be shipped with features disabled. That’s awkward for music (Hey, who turned off the drums!!). Early attempts were made with music to give away low rez versions. Some of think an mp3 IS a low rez version. People adjusted by lowering their listening standards. Rats.

    And … one of the hardest problems of the software business, even work for hire, is collecting if it wasn’t shrink-wrapped. So this isn’t unique to art. It is digital media in general which is why it was called DRM.

    If the artists want more protection and a fairer shake, they need their own goons but then someone has to manage them and artists don’t do that well, so they hire other goons (lawyers) and we’re right back to the label. Labels can band together but isn’t that what the RIAA is?

    So if you plan to actualize, pick the battles that you can win. Some progress will be better than none. Good luck. Everyone can benefit and you are the people who can get it done because you are the pros.

  167. Rick Turner says:

    “Digital watermarks” could work, and downloads tracked. It involves privacy issues, but it could be done at the ISP level, not on the individual account level. A fee built into ISP billing would feed the fund for royalty distribution. It would make the CC folks freak out, but from what I can tell, too many of them are the leaches who want free entertainment and contribute little. Those who do contribute seem to have made their names and dough before this was all an issue, so they got theirs and don’t want to share.

  168. Evan says:

    As soon as you start bringing up “digital watermarks” and tracking downloads you’re getting right back to trying to “solve” the “problem” that DRM is supposed to “solve”. There is no digital watermark that can be placed that cannot be removed, and all it takes is one removal to let the “genie” out of the bottle. You’re falling into the same incorrect reasoning that brought about DRM in the first place.

    Ubiquitous high bandwidth data transport capability and the ready availability of general-purpose computers makes the world different. Period.

    You can’t have your old world back, no matter how you pine for it and try to legislate it back into existence. Bits are easy to copy, and will become easier to copy. Instead of clinging to your buggy whips, why not think about new ways to do business in the world.

    The model where “artists” got paid for making copies of their work was a nice model (for those who profited from it) while it lasted. It was created as an artifact of a world where moving information involved physical media, and thus was subject to scarcity. That ship has sailed. If “professional” musicians, composers, movie-makers, and all the “professions” who have business models that rely on bits being hard to copy can’t make it in the world then they won’t. Boo-hoo. Find another job or starve. Seems like arts and culture did alright before media publishing industries existed, and they’ll do alright after it crumbles. Maybe we’ll have more earnestly interested artists, and less profiteering “professionals”. Sounds good to me.

    I’ve said it here before, and I’ll say it again, unpopular though the opinion is: No one “deserves” to be compensated for anything, much less compensated again and again for labor they performed once. Either you have a market or you don’t. If your particular trade involves creating bits (which can be easily copied), you’ve chosen to limit your market, effectively. Perhaps you should think about providing a service that doesn’t create easily reproducible bits, or maybe producing a physical good.

    Good riddance to stupid business models, and of the “cult of the professional”. I, for one, would like to see culture taken back from the “professionals” and put back in the hands of people.

  169. len says:

    Digital watermarks can work. It is one of the means used by other digital media.

    Another idea is the business model has to account for accept a certain amount of pilferage. Where the industry went waaay wrong was those lawsuits against teen agers and their parents. It is one thing to make examples out of the big cos and the Chinese; it is quite another to sue the customers who are otherwise buying occasionally. Just as we learned to ignore the cassettes, we have to ignore the CDs unless someone is making a goodly shekel, and then demand the fair dinkum.

  170. len says:

    Fine Evan. Then the next time Microsoft sues a cracker, please join the brigade headed to burn down Redmond.

    Good for the goose…

    Oh, and can I sleep with your wife? After all, it is a renewable resource and your use won’t be affected.

    Gunpowder changed warfare forever. We still signed the Geneva Accords.

  171. T Bone Burnett says:

    A physical good is a sound idea. Also pianos in homes.

  172. Tom Wilmot says:

    I suppose, if the issue strictly revolves around illegal copying, there has to be a synthesis between the producers of the artistic and the manufacturers of equipment used to rip the material aftermarket.

    A while back I was doing research on counterfeiting currency, and came across and interesting little fact. Japan, back in the 60’s developed micro printing in the background of their currency that contained a specific arrangement of dots. They then approached copier manufacturers and asked them to create a specific safeguard that would cause the copier to stop scanning the moment this configuration of dots was encountered.

    The US worked with Xerox, Savin, etc., to apply the same system when currency in the U.S. was redesigned/re-issued in the mid 90’s.

    I see no reason that some sort of binary imbedded within the code of a digital file, whether audio, video, photography, digital art, etc. couldn’t be recognized by either computer operating systems or the specific software involved in copying or duplicating or ripping a file from an outside source. JPG files allow one to write specific information in the header of the file, which I use to “watermark” my work without compromising the integrity of the image.

    I do think we’re headed down a slippery slope though. It seems any sort of protection measure created in the digital realm is like a red flag to folks wanting to “beat the system”. How long did it take Blue Ray to get hacked…. 6 hours?

  173. len says:

    ” I, for one, would like to see culture taken back from the “professionals” and put back in the hands of people.”

    Not meanly, but please, these are The People. Artists are people too and they are the people that MAKE the art.

    Make a poster.

  174. len says:

    But if you want to use network effect, form your own IP consortia and set your own rules for participation.

    If the technologists tell us there is no solution, then the technologists don’t have one or don’t want one. Fine.

    IP-distribution rights can be controlled by absolute subscription: a record of authority has a watermark. If removed, that is a crime.

    Then leave it to the artist community to form it’s own IP-consortia and set their own rules for how distribution is enabled. By contract. By agreement.

    There are some heavy hitters on this list. You have the power to put the thought through the community. In a network, you are most strongly bound by type. Make your own tribe. Set your own rules.

    The power is in the art community network itself and as with all great changes, there is usually a small group of individuals that makes it happen. So, Stars, set some rules.

    But please, art is a community at every scale. Let that tribe be as large as it is reciprocal and clear. The coin of the realm is the work.

    “Oh children, feed my sheep”

  175. Rick Turner says:

    The “free music and video” types are such mean-spirited bastards. I hope they run smack into a golden rule or two soon.

    In the old days of ASCAP and BMI, the only “water marks” were rooms full of listeners who would listen to tapes of radio broadcasts, etc., identify compositions and then log them. The data base that came out of that established the royalty base. Since compositions are unique combinations of notes, why could there not be song/composition identifying software that could quickly ID what was being streamed, downloaded, etc.? Composers could register their works digitally to be recognized as they were disseminated over the Internet. Every tune that went through an ISP would be logged. No watermark needed…the song is the watermark. In cases of ambiguity, humans could intervene.

  176. len says:

    GraphicMagick: Scaling opens spaces.

    For example, change collection policies to create a space for the level of the art where the songs are created.

    Set a low non-zero limit on the size of a room from which a fee is collected to enable small acts to work and no royalties are collected. IOW, get the cost of mechanicals off the backs of the club owners so they can open space for the songwriters. Big rooms sell art. Small rooms breed it.

    Use similar scalars in other arts to open space. It is a network bound by shared types of events among routed but self-selecting objects. Pick your own rules.

  177. T Bone Burnett says:

    Music is free. Anyone is free to make it anytime he wants. Recorded music is expensive. For a music artist to put recorded music into the public domain is a generous gift. For people to take recorded music without permission is not generous. I am writing as an amateur.

  178. len says:

    From a purely comp-sci point of view, Rick, the watermark is a lot faster in performance. CPU cycles.

    On the other hand, on the web, all objects have URLs. It is the URL that you need to register, and then you must not change it. Then it is an authoritative copy by which a reasonable person could authenticate its identity.

    The problem is NOT the instance. The techHeads can tell you: if it is digital, it can be tracked.

    So disputes of ownership come down to a name and a record of authority. Btw, a name is a link and a link is a URL and a URL is the identifier and can be resolved to the record of authority.

    Any DB can do it.

    Registration and identity are not the problem. The problem is a set of rules for participation where possession of access rights to the URL is one right of participation.

    The trick is enforcement.

    If the artists form their own coalitions and set the rights over that, then artists control that namespace.

    The namespace controls the domain. Nothing about that is technically difficult as long as you accept pilferage past point of subscription and reasonably, there isn’t a good answer for that which doesn’t require social force, but at least if you own the right of access to subscription, you control the amount of force.

    Reuse and derivative works: stop as a community and ask yourselves if midis really hurt or help. MIDIs are musician’s open source. They are the seed by which your licks as realized in an easy to be learned form.

    Then when you hear covers, you have at least an approimation of your intentions. Software scales because of View Source. Adopt it. MIDIs are your open source.

  179. Rick Turner says:

    I think the room size for public performances is a non-issue. We have places here that have live music that hold all of fifteen people. Songwriters do perform their work. No problem.

    One thing that’s being tried and that I’d have put money into a few years ago is doing live recordings at concerts, duplicating them on-site on high speed CD duplicators, printing a label then and there and selling the CDs of that evening’s performance after the gig. In the clubs I frequent, I’d bet that a good act could sell at least 50 in an evening and bring in a nice chunk of change. Autograph them, have copy and paste song information; even do photos from the night of the gig. Then the artist and the club have that master to sell on the web as a real item or as a download. A lot of folks would do the impulse buy…”Tonight’s gig in your hands tonight.” I’ll bet a lot of artists could sell hundreds of copies a week and just split the dough with the venue and whoever is doing the actual labor. So instead of a single album selling tens of thousands of copies in order to be successful, you’d be selling hundreds of copies of tens of albums to be successful. Get to a big gig like, for instance, Telluride or MerleFest or Hardly Strictly Bluegrass, and each act could put out it’s own CD right there. “Board tapes”…now, of course, not tapes but digital recordings…are pretty damned good these days, and besides, live recordings are mostly loved for the music, not obsessive studio tweaking. This could be a fourth stream of income for touring musicians. The technology is all in place, and some bands have been doing this. You could set this up in any club or concert venue.

  180. Rick Turner says:

    Oh, Len, I realize that a digital watermark is faster, but it’s hackable. Pattern recognition software would not be so hackable. You might not catch each and every play and download, but neither do ASCAP or BMI now. It’s all in sampling and statistical analysis. And no, it won’t catch everything. If you write a tune and it gets played ten times in five years on the entire Internet, you may not see a dime. But it could apply a current concept for compensation to new technology.

  181. Rachel says:

    Len, please, take it from me. I run a company that makes enterprise software for movie and music distribution, and until last year I ran a division of one of the four largest companies in that space. Digital Watermarks are not the answer. Neither is tracking file formats at the ISP level, because the easy solution to that is encryption of pirate works.

    I’m afraid, Rick, that pattern recognition is also easy to defeat, because you’ll constantly be needing to upgrade your recognition algorithms to take account of the new scrambling algorithms that are rolled out to defeat it.

    Nothing any of you can propose as a technological solution to this problem is viable. Nothing. Anything you can build, can be defeated, and will be defeated. Heck, there are thousands of geeks out there with access to supercomputers (or even just networked playstations) who do nothing else but break security codes, because they can. It’s part of the process of training better geeks.

    Forget about solving the problem of piracy with technology. It’s a losing game. Jon is right to focus on a low-friction, low technology method of compensation. It’s about the business model, not the technology.

  182. len says:

    I understand. The way that works though is pattern analysis only works on a sample. Register the URL to point to the sample that is the ROA. The analysis is verfication. You treat that as a service to subscriber.

    IOW, it’s how you sell the service of analysis and ensure that the pointer system of the Internet has a name for the instance, the analysis service, the results and so on. Registration is documentation. URLs are what the web uses to reference instances and these are registered.

    That is what the copyright office does now. You still have to enforce it.

    The question is still how much energy will you devote to chasing down pilferage. What the URL plus instance does is enable you to work the service that can disciminate between your sample and the disputed sample. That’s how pattern analysis is integrated into the service model: verification. First, there has to be an assertion or request for verifcation.

    Use URLs wisely and often.

    You can’t stop pilferage. You can make it cheaper and easier to test assertions of ownership because the URL enables you to pair the assertion and the instance and provide those as input/values to the analysis service.

    The URL is the aleph in the mouth of the golem.

    Watermarks: a feature of the service the artist subscribes to. The artist decides if that is in there. Past that, any business/consortia/IP agreement the artist is subscribed to.

    If you write a tune and it gets played ten times, you may not see a dime but you see that it was played ten times. That’s transparency. It doesn’t decide the ‘natch; it just let’s you find out if it is natural.

  183. len says:

    I know all of these means can be defeated.

    So?

    Copyright is not a copying problem; it is an enforcement problem. One isn’t trying to beat everyone; only the ones big enough to pay.

    Pattern recognition, registration, watermarks but ultimately semantic web URL associations do not have to enforce copyright. They just have to be able to test ROA assertions.

    Those are services. They have a QoS number and over time, if managed well, it is acceptable in terms of performance. It won’t kill piracy. Nothing ever has. It will track the honest.

    What iTunes proved is enough people will buy it. Enough is enough. Selling isn’t the problem either.

    How about mashups? As pointed out, the reuse. That is where mechanicals live. This isn’t just about how we fight pirates. It IS as you say, about the business model.

    Artists keep being dogs working for cats when they should be cats working with each other.
    If there is to be a change, it won’t be a change with our audience. It will be with each other.

    Whether an online service member, or a consortia of artists who set up the services to their own benefit (Sorry Mr. M!), it will be because communities subscribe.

    As Alex said, there is a door. And behind it is a “twisty maze of URLs”.

  184. Rick Turner says:

    It is interesting that the big freak out about all this didn’t happen when the “record business” started to go sour. Remember all the nay-sayers proclaiming that file sharing wouldn’t hurt the record companies at all? Yeah, sure…

    The freak out started when the movie studios belatedly realized that it was only a matter of time before what was happening to the record companies applied to them, too. The only difference between audio recordings and movies or videos is memory and processor speed required, and that has become a non-issue for all intents and purposes.

    Having seen first hand what Luddites and tech ignoramuses the old guard of recording company and publishing execs are, I’m not surprised at how this has all gone down. In 1982 or ’83 my pal Lowell Levinger (aka “Banana”, ex of the Youngbloods) and I tried to get financing for a venture called “Dream Sequences.” We wanted to sell MIDI sequences of accurate transcriptions of arrangements of popular tunes of the day. Nobody had done this yet. You could put a floppy into a drive connected via MIDI to a synthesizer and there was the backing track for Pet Shop Boys or whomever. We had suggested synth patches that would emulate the recordings, and you could play as many virtual tracks or not so if you wanted to play the horn or keyboard parts yourself, no problem, if you wanted to just sing karaoke style over it and play guitar, no problem. It was perfect for Holiday Inn top 40 duos or trios. You could also print out the sheet music on your good old dot matrix printer…remember those?

    When we got to some of the Hollywood music industry biz types they absolutely freaked out. They had no idea that the genie was that far out of the bottle. They were outraged at the idea that you could print a score from a floppy…or play it and sound very much like the original recording. I mean we’re talking seriously red faces and near heart attacks. And here in front of them are these two ex-hippies bringing them the good news about technology!

    Well, we just wanted everyone to get paid. Sell a sequence, pay the composer. Hell, pay the arranger and the band for their sound, too. No way, Jose… Talk about Luddites and Saboteurs. These guys were ready to go out and buy wooden shoes just to beat us to death with…

    And then we decided to do cryogenically treated guitar strings, and I should have patented that, but that’s another story…

  185. Evan says:

    I’m not sure what bringing my wife and sex into this has to do with the argument– seems a bit juvenile to me. Maybe you couldn’t come up with anything to say in response to my points, so that was the best you could do. *sigh*

    I don’t really get the comment about Microsoft “suing a cracker”, either. Microsoft’s business model, with respect to selling software as though it’s a physical good, is just as brain-damaged as any other business model that attributes physical characteristics to intangible information-based services. With Ray Ozzie, Microsoft appears to be learning that they are, in fact, a service company (and not a merchandising company), but it will take time for them to adapt (or die).

    I’m really amused by the pseudo-technical hand-waving going on here. I particularly like the talk about URLs– as though the whole of communications between computers via the Internet is HTTP. “Make x-y-z criminal”, etc. Copyright infringement is already illegal, but it still happens. Making laws that cite specific technologies, networking protocols, etc, would be a blindingly stupid use of legislative resources. Making everyone a criminal isn’t the answer. You can’t lock everyone up. (“War on drugs…” *smile*) You can’t legislate the genie back into the bottle.

    (I particularly find amusement in the naive thinking that URLs somehow represent physical things. Never you mind that an URL can reference the output of an application program which might change over time. Bookmark a Google search and come back to it 6 months later. Maybe Google should have to file for an “URL change permit” or some such every time they update their database.)

    How would it benefit society to completely tear down and rebuild the Internet to serve copyright holders? It seems more beneficial to society, to me, to just tell the copyright holders to deal with the world as it is now, and keep on with the innovation that the Internet is providing. (“Think of the poor blacksmiths…” *sigh*)

    Intellectual property law is outdated with respect to today’s technology and social attitudes. Those who have entrenched interests in keeping things “business as usual” will try to exert their will, but the tide will inevitably turn– of this I have no doubt. The reality of today is just how it is. You can tilt against windmills all you want, and make up fantasies about how we would rebuild the Internet to be a copyright enforcement machine, but it’s not going to happen. The public doesn’t want that, and in the end (at least in the US), the public grants copyright to creators– not the other way around.

    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    I don’t see anything in there about propping up outdated business models, or enriching creators.

    Cry if you want about how changing social attitudes are killing off noble “professions”, but it won’t make it stop. It’s creative destruction, and it’s happened before and will happen again. I’m happy to live in a world without big-budget Hollywood blockbusters and label-hyped recording “artists”. Maybe I am a bit mean spirited, if only because I work for a living, and I think it’s high time others do, too.

  186. Rick Turner says:

    Whew, the high and mighty!

    “I work for a living, and I think it’s high time others do, too.” Wow! So what do you do for a living that’s so precious?

    And it’s really something that you don’t think that writing or composing is real work. What a fucking attitude! What a crock of shit…

  187. Jon Taplin says:

    T-Bone- I’d be up for organizing ameeting in a physical (as opposed to virtual space) on this subject.

  188. Anders says:

    Just to get back to Jon’s initial suggestion. A broadband fee. Is there any way of setting the level of that fee, that would give
    citizens fair value (and not preserve the entertainment-industrial complex at its current bloated size)?

    And how would we secure that the money doesn’t get sucked up in the legacy institutions of entertainment-industrial complex (big four, mega-movie studios)?

    And is there any method of distributing the money that artists will support? Are Big Champagne numbers reliable (I doubt it?)

    -Anders

  189. T Bone Burnett says:

    Evan- Maybe you could help us sort this out. In the meantime, if working for a living makes you mean spirited, maybe you should look for something else to do. Len doesn’t deserve derision. He is a smart guy and your senior. I don’t understand your contempt toward artists. I read that you are an independent IT consultant by profession and an amateur musician. Perhaps you should try switching things up and become an amateur IT consultant and a professional musician. (I should say that having never been either of those I have no idea if it would help you with your copyright rants, as you call them, but I understand that kind of thing can sometimes snap one out of a morbid spell.)

    Artists aren’t that bad. I think they are a hell of a lot of fun, in fact. And I have to tell you that artists work twenty-four hours a day. They work when they sleep. (Here I am talking about actual artists and not hyped commodities.)

    Art is not about benefit to society, although that is sometimes a result. And everything that is illegal still happens. That is the reason it is illegal.

    If intellectual property had no rights associated with it, there would be no IT consultants, by the way. Not the way we do it.

    Anyway, best of luck to you. And, it is no easy ride being a free lance poet.

  190. len says:

    First, Evan, please do some reading on the W3C Architecture list and its recommendations. All of the issues you cite with respect to URLs are covered there as part of the Semantic Web and Best Practices threads. As to the changing nature of the resource (what the URL identifies), that is covered as part of the discussion of systems that return weather reports. I’ve been at this awhile and am fully aware of the limitations but also the practices that make it work as well as it can work and that will never be as good as people want and some deserve.

    Microsoft is just an example of companies in the software industry that pursue crackers with a vengeance and use every trick known to comp-sci to register and check the registrations of their products. Actually, with respect to the artists, they’ve tried to do the right thing. Faced with lawsuits, so is Google now. That trend is getting some results as the business models are reorganized to cope.

    <rant>
    DRM isn’t working not because it won’t technically catch the criminal in the act. It isn’t working because of a zeitgeist of theft. The piracy has been going on since the industry started, and in some cases, within the industry. Look up the phrase “cleans”.

    But the culture of stealing in society is disturbing. It’s ok to rip the CD and make a few copies. It isn’t ok to set up a business based on ripping it and profiting by that. It is no different than breaking into your house to take your silverware and roll your partner. If we really were a society of bonobos, you would accept that and with respect to intellectual property, that is what we’ve become. As above so below. The culture that rips the CDs for profit is the same one that just defrauded the 401ks. No difference except in the victims..</rant>

    Understand clearly what is going to come about. When the geeks began to crack each other’s code, they took two paths: consortia to create new rules and models, to form the participation agreements that controlled their own destiny, and open source under the same kinds of umbrella organizations. That is what I am talking about here. It isn’t perfect but it does provide better results than just wringing our hands and giving up. The best way to win using network effect is to ensure the classes by types cohere. That means the artists are going to have to look out for each other with regards to the contracts, the services and how the natch gets shredded. For that to work, the most powerful will have to look out for the least. To do that, they need a plan.

    Part of this discussion is what would a plan like that need to consider. Jon has an idea for collecting broadband mechanicals. It is a good one. What I am on about is how that should be audited and how participation can be organized. IOW, at the end of this, we are talking about the business model as Rachel says. My difference with her is that just because the tracking system isn’t perfect doesn’t mean it isn’t useful. This is about where the power will reside in those new models. And that is what the participation agreements have to spell out.

    I don’t think we will unhorse ASCAP or BMI. We may want to consider if a new deal is needed and speculate on some changes to the current system that will be healthier for the business environment which if it doesn’t sustain art at the egg stage, will degrade the product itself.

  191. Rick Turner says:

    And why not use the existing business models of ASCAP and BMI for this? Why aren’t they in the forefront of all this?

    One of the main issues here is ethics. Evan, to my way of thinking, represents the unethical side who think they have a right to rip off composers, writers, and artists because he has a “real job” and they are all a bunch of leeches sucking the blood of honest working folks. Unfortunately, I see too many computer geeks using their secret decoder rings to get revenge on the school mates who rejected them for being too dorky in high school. This is the revenge of the nerds at work. Why is it that so many IT consultants and experts have this smug, “gotcha” attitude when it comes to dealing with us mere mortals? Maybe it’s that the musicians on one side and the jocks on the other were getting laid and the dorks weren’t, and now that the world needs computer geeks, they get to call the shots…

    Anyway, I’m all for a broadband mechanical license arrangement, and I have no doubt that it could be made to work at least as well as the current ASCAP/BMI models do outside of the computer world. I suspect it could actually work better for lower level artists, too, if implemented decently. But then I’m not an IT guy. I don’t have the secret decoder ring.

  192. Tom Wilmot says:

    Rick:

    I think the one thing you haven’t factored in is that the “geek” is a greaseless tinkerer. Like a classic motorhead, programmer/developer types like to tear things apart, reverse engineer and look for the weak points in things. Not unlike the guy that’s constantly trying to get enough compression to blow out the stacks on his ’69 Camaro.

    It’s all a matter of approach. Some geeks are like the guy that just wants to be out on the track on Saturday, wailing down the white line and shooting the shit with his friends on how upped the mix in the firing chamber and then there’s the other kind, that could give a shit about improving engine engineering – just win today.

    Anywho, the point is, a good geek is constantly looking for the flaw, the weak point – not so much to point out that everyone else’s thinking is off base, but to create a better outcome.

    The nascent idea you guys are all kicking around isn’t a bad one and you’d be remiss not to include the tech types into the discussion, as they ARE going to be looking for the weak point, the flaw in the system.

    All systems are breakable – the goal, I think is to come up with something that serves the LARGER need to the best of it’s abilities.

    The way I see it, when it comes to protecting digital distribution you have three primary goals:

    1) An easy, affordable market for the consumer
    2) Fair accounting and return for the artist
    3) Not compromising the quality of the product.

    None of these goals seem unreasonable to me and I doubt if they’ll seem unreasonable to reasonable people.

    I would like to think that Evan and Mr. Asante wouldn’t find these unreasonable goals either – of course, what do I know?

  193. Rick Turner says:

    Tom, I understand your point, but Evan has come on so strongly against any kind of royalties being due to creative people that I am offended for the sake of my many friends who depend on royalties to make a half-way decent living. There is a streak of amorality that has spread from the geek hackers into the general public that I find disturbing. The geeks seem to have their own ways to protect their own livelihoods while they tear down others’ means of self-support.

    Meanwhile, all that promised computer interconnectivity, compatibility, ease of use and upgrades, etc. that we mere civilian mortals were promised a good 20 years ago when we were getting used to our Macs and IBM desk top computers has not come to pass. So the geeks maintain their secret decoder ring strangle holds on the rest of us who are sick to death of needing to upgrade and who don’t need a better spreadsheet or word processor.

    The computer crowd may have their issues with musicians and writers, but we have our issues with the tech genius crowd as well.

  194. len says:

    Another thing to look at is in discussions of the DRM-free iPod elsewhere, the discussions are focused completely on the advantages to Apple of the sliding prices scales and DRM-lessness on the sales of the hardware. IOW, the music is just a way to sell iron just as software once was in the days of the mainframe.

    And that means that some of that iron-revenue should be picking up some of the loss of revenue for the content. An adjustment of the business model has to look for scalars elsewhere or we replicate the bad old music business where the artist pays for everything and everyone else collects points.

  195. Tom Wilmot says:

    Rick:

    I understand your point as well. I tend not to point the finger at the tech crowd, per se, since there has been a general collapse of societal thinking across the board for 20+ years. Too many people, whether it’s a Madoff or a friend of the cousin of an accountant for Jackson Browne’s pool guy, are too self-focused to understand that their sense of self-entitlement to see how their actions impact other people.

    This is a larger sociological question that probably needs to be addressed elsewhere.

    For myself, I’ve never had issues with royalties – it’s the business model that portions of the entertainment industry runs off of, and that’s fine. Like a lot of folks on this board, I spend a chunk of my youth unsuccessfully pursuing a music career and for the large percentage of people, it’s a hard, hard road.

    I think that’s one factor that people resentful of royalties and recurring payment structures forget – for every Bob Dylan there’s 100 Pat Murphys who support their family by working as a woodsmith and support their soul by gigging and home recording and jamming whenever they have an opportunity.

    In regards to the lack of perfect interconnectivity in the tech world, well – again, we’re dealing with a certain level of “oneupsmanship” that poisons the well in so many endeavors. As we move closer and closer to an absolute global community, as the computer becomes more and more the primary tool of communication, entertainment delivery, financial management and information delivery, the more industry leaders will HAVE to come to common cause on how to get this done. The days are competition between Unix/Linux, Apple and Windows are limited – in order to meet the needs of the future, there will have to be an industry standard – the companies that feel they can “win” the fight will lose, as self-interest usually does.

    You know – people are the craziest critters.

  196. Rick Turner says:

    Re. i-Pods…I wonder what the actual margins are on “iron” like this. I doubt that there are big numbers in the hardware game these days. That’s why the software portion of the Apple business model…the songs…is so important. Sony didn’t buy Columbia for the back lots, they bought the company for the back catalog of both music and film. Polaroid didn’t sell cameras, they sold film back in the day. Loading recording equipment with a surcharge for software royalties has been tried and found unworkable, too. That’s what the studios wanted with home VHS and Beta recorders, and they really freaked when some companies came out with dual decks made specifically for copying from one transport onto the other conveniently.

    Look, the tech side is always going to be one or two steps ahead of the business side in this particular world. But we can see into the future, and we could have a reasonable system for compensating authorship of software and content.

    The apple is off the tree, and it’s been baked into a delicious pie that’s too scrumptious for most people not to take a bite. The waitress is in front of everyone beaming and everyone is looking at her cleavage and she’s whispering, “It’s free, it’s free…” The temptation to steal intellectual property is just too strong for most people to resist, so they make major shifts in their moral compass and tell themselves that it’s OK to steal because information wants to be free. It’s bullshit, of course, and the waitress will give you an interesting disease if you go too far, but that’s how it goes in the brave new world.

  197. len says:

    True, Rick. Something to consider: originally, start-ups like mp3.com tried to deal fairly with the artists and directly. They couldn’t get the top drawer crowd interested. iTunes made the deals with the majors and have the product the people want, but at the same time, are recreating the old middle-man-takes-the-big-bite system, meaning it has to come from a major label or at least through one of their recommended middle men.

    The only hope I see for a change is if the artists with enough draw to do it form artist-owned labels. Some of that is happening. It isn’t perfect but we’ve gone for so long believing the only way an artist could succeed is with major promotion and in some ways it is true and always will be. On the other hand, as you point out, some bands and artists are taking advantage of the tech and selling off the board. As I recall, The Dead pioneered a lot of that thinking by encouraging the audience to record and selling off the board. The Dead took a community approach from the beginning, or so the legend goes, and it worked for them, or so the appearance goes.

    The irony is, the ‘information wants to be free’ meme was popularized by a Dead lyricist, John Perry Barlow, although Stewart Brand is credited with the original quotation. And here is where cultures trip over their shoelaces: the origin of the thinking that makes it easy to rip the CD starts in the very community you and Jon helped create. Irony, I guess. So I am fascinated to read from the pros such as yourselves how that has worked out and where and if some of that was mistaken and what lessons were learned. It’s one of the angles that makes this blog fascinating for someone like me who sat on the other end of the country envious of your success and freedom, not schadenfreude, but the real possibility that what you’ve learned once influenced the world, and still can. That is, a change that can make this equitable will not come from the tech community. It will come from the relationships of the tech community with the art community and it will only come when the artists find and use their power to make it happen.

    That means your tribe, Rick. Mine in the sense that I am a geek, has already fought this fight and we learned that we had to make those participation agreements, sign up, pay the dues and live with the fact that the big software companies tried to muscle us out of existence at every turn. We survive by staying within our means, protecting our assets, and most of all, holding on to the values that brought us together: open enough to evolve, closed enough to survive, and happy with what we have because it is ours. Then contentment is knowing when we have enough and not want what others have.

    If thee and thine are the culture mavens, it falls to you to change the culture.

  198. Rick Turner says:

    I’ve read some of Barlow’s ramblings over the past few years, and I absolutely disagree with him. He’s the perfect example of someone who made his royalties the old way and now wants to deny that to the next generation. He’s bathing in privilege and telling us to do as he says, not as he did. Brand is another one who has figured out how to parlay his fame and notoriety into a way to make a living with foundation money, speaking money, and yes, writing for dough.

    As for the Dead…the idea of the tapers was NOT to sell tapes of live shows but to enjoy them and trade them. And once again, you have a band that made their money the old way. I wouldn’t mind taking a peek at Robert Hunter’s quarterly royalty statements…

    BTW, I’m not against work for hire, either. I’ve written tens of thousands of words that have appeared in at least a couple of hundred magazine features and columns as work for hire. I write quickly, and I make decent money when I do get published. With a couple of major music biz publishers, I retain copyrights on unedited articles, with another it’s theirs. Either way I get my hourly pay. Writing this way wouldn’t earn me a living, but it’s been a damned good supplement. But the point is that I DO get paid for my work…the information isn’t free except that which I choose to disseminate here on the Internet. That is choice. I can give it away or I can get paid, but I don’t have people stealing from me.

    I am a second generation work-for-hire writer. My mother worked for magazines when I was a wee one as a copy writer. It’s in the blood. She got paid; I get paid…

  199. len says:

    Thanks for the insights as only one is was there can.

    “That is choice. I can give it away or I can get paid, but I don’t have people stealing from me.”

    And that is precisely what has to be the case. On the other hand, if you are a BMI/ASCAP writer or a label writer, the options for what you do are restricted a bit more. I almost had to tear down a gig one night when the boys showed up in the middle of the day to tell the manager of a good club he wasn’t paying his fair share to them, and they sure weren’t paying me even though I was a BMI writer. That’s the part of it that sorta sucks. I lose my gig so Dylan can collect. Otherwise, you know what I’m doing with my songs because there isn’t that much choice as an amateur. I’ve sold albums from the stage and in the stores. Without the company support, that doesn’t work and I don’t have the contacts or age to change my status. I wish I did but otherwise, I like the life I have. I just wish I knew the songs wouldn’t die when I do unlike your guitars that will go on for hundreds of years. Maybe that’s something we all wish for. Call it ego. We love our work like our children.

    The idea of the consortia is a little different. Imagine having an art consortia where the people with the names who get the most from the services pay one amount, say just for the example, 15k a year. For that price they get to sit on the consortium board and dictate policy. At the bottom are the so-called student or entry-level memberships, say $100 a year. That won’t even pay to process the application but it’s enough to keep it serious.

    There might be more levels, but that’s the general idea. The consortium offers some services, but mainly it keeps the IP for works in common and ensures that any works created by the consortium operate under the rules of the participation agreement. IOW, fees are regular, any member can use certain contributions, etc. It promotes and enables collaborations. It provides lists of material available say to the movie industry or deals for samples. It acts as a communications vehicle and keeps private that which has to be, but otherwise also gets new blood in. It is not a label but a label can join. T&Cs can be worked out.

    Variations of this are being tried now but they tend to be companies and not artist consortia.

    It’s just a suggestion to throw into the pot in case y’all have that meeting T asked Jon about.

  200. Rick Turner says:

    Read up on the history of United Artists, the company formed by Mary Pickford, Douglas Fairbanks, WD Griffith, and Charlie Chaplin to gain control over distribution of their films. Yeah, it all changed and got screwed up, but that original idea is kind of what we’re talking about, but for the digital age.

  201. len says:

    Precisely. I was thinking about UA. In Hoffstede’s Cultures and Organizations: Software of the Mind, he talks about the onion of Symbols, Heroes, Rituals and Values where the symbols are understood within the culture, the heroes exemplify the values to be sought, the rituals serve to help the culture cohere, but at the core are the values, the outcomes that the culture wants to prevail in certain situations. The Founders and the values they set make all the difference in what follows.

    I’m sitting here working and listening to T-Bone’s NPR DJ interview sampling his values. Other than your work as a luthier, something you said in an interview caught my attention. It was the bit about running the sound through a piano soundboard just to see how it would sound. I liked that enormously because you aren’t locked into formula; you are still arrow loaded, on the hunt. Values.

    I don’t mean to be obsequious, but your values mean something at a distance and that is the most powerful magick there is.

  202. Rick Turner says:

    I got deeply involved conceptually in the idea and technology of digital audio modeling…being able to make complex digital filters that work in both the frequency domain and the time domain. My particular application has been to be able to develop algorithms that define the sound imparted to guitar strings by the wood and air of the instrument. It took me about 12 years to find the right partners, but we did it, and it works. In that interview I was imagining what it would be like to do a grand piano algorithm…capture the signature sonic overlay…and the play a guitar through it…or plug in a mic and sing through it, or whatever. Start with a concept, and then hack it and throw away the rule book. What would a violin sound like playing through the resonances of a trumpet? It’s not synthesis, it’s understanding that instruments are sound modifiers and then making digital versions. It’s an interesting field, to say the least. I also learned a hell of a lot about real acoustic guitars doing the R&D and doing the recordings to be turned into the models.

    I’m not a programmer by any means, but I do understand the underlying concepts that rule both the physical and virtual worlds with this stuff.

    As for the IP on that project (yes, it comes back to that…), we chose NOT to patent the device or our methodology preferring to stick with trade secrets. That has worked for us. There’s really only one competing product on the market, and ours still is unique in how we’re able to use any instrument without having to sample it with a pickup mounted in it. Thus I was able to work with about $250,000.00 worth of guitars in the recording sessions, borrowing examples from as early as the 1850s, “golden era” Martins from the 1930s, Loar signed Gibsons, etc. Lots o’ fun!

  203. len says:

    Wow. I didn’t know. You constantly surprise me. Are you saying there is a modeling package of yours that is marketed somewhere? I liked it because it is a wicked idea: it just might make magic sounds and that is the ultimate goal.

    I’m very simple oriented in my home studio because the more stuff I have the less I get done. I have the Roland for synth, the computer, the Adobe Audition 2.0, a fair mic, the axes (and I use about 2.7 of those), the MOTU and that’s about it. Oh yeah… an old voice. Plugins make all the difference but I get lost in those and have to rely on my ear. It is second rate but no one starves when I fail so it works for me. It’s ok. It keeps me focused on the song and as Terry Woodford told me many years ago in Muscle Shoals, “Remember to be a songwriter, not a sound engineer.”

    T-Bone makes some interesting remarks about digital, attack and low-end, and the frame of the piece. The last bit I understand as a writer and drama student, but he gave some good pointers to think about when recording about how to get the sound to be rounder in digital. When we went digital, it opened up a world of composition possibilities and it cleaned up the noise floor, but dang, as clear and transparent as the sound it, it is colder than Dick Cheney’s knees. I respond to that by upping the number of acoustics I use, mellowing out the voice and so on. He had great pointers about Roy Orbison’s singing technique. I vaguely remember some of this from my college days, but as he describes it, it makes a lot of sense.

    I’m glad the election is past us. I thought I’d go to Morgan exile and never get out of the doghouse. Thanks for the natch.

    BTW; proper attribution. Shreddin’ the natch: a Doonesburyism. In the strip, Jimmy Thudpucker comes to record his comeback album only to be faced with a producer on the board and no one else in the studio. When he asks about it, he is told it is all on disk (‘got strings that’ll give you diabetes’) because hiring live musicians is “too many ways to shred the natch”.

  204. Rick Turner says:

    The digital modeler I’m involved with is called Mama Bear and it’s made by D-TAR…Duncan-Turner Acoustic Research, a company comprised of some of the main people at Seymour Duncan Pickups and myself. Think of it as being a three dimensional equalizer. It’s not a sampler; it’s not a synth; it won’t make six strings sound like 12 or steel strings sound like nylon. But it will take a guitar with a bridge piezo pickup and make it sound pretty damned good and then some. And if you play to the models, it’s amazing. Check out the demo that John Jorgenson did for us; it’s on the D-TAR site. I really pissed off some luthiers at one of the Healdsburg Guitar Festivals…2003…when I demoed the prototype and made an Ovation sound like a J-200. Yeah, Ludditism is alive and well in my field, too. Me, I like real wood, I like good digits. All my guitars eventually have digital tone controls…the fingers on the players’ hands…

  205. Armand Asante says:

    @TBone

    This discussion has progressed quite a bit since I last visited, but I’ll try to pick up where I left off:

    Say you were a film actor. Say you acted in a film. Say someone took that performance, that character and put it in another film. He didn’t pay you or credit you. Or, worse, he credits you and sells the film using your name.

    Copyright does not deal with attribution in such a case. It would only deal with monetary compensation for infringement.

    I’ll bite anyway:
    In a world devoid of copyright (I don’t think we’ll ever see one – but I’ve yet to be convinced we shouldn’t at least strive for one) anyone would be allowed to use my name and pieces of my performance in their art.
    I don’t have a problem with that.
    If he made money from my performance – I could copy HIS film with MY performance in it and sell it too.
    So could anyone else.

    As for what I do – I’m an animator and concept artist. Most of my work though, is 3d for TV ads. I also used to do comic strips and might go back to that one day. I also paint.

    As for the difference between what should and shouldn’t be regarded as property there’s a very simple rule of thumb: if by taking it I deprive someone else of it – it’s property.
    If by taking it (or copying it) – the original owner still keeps his copy – it’s shouldn’t be regarded as property.
    Simple.

    Say you had an idea for a film. Say you told it to your friend, and he made the film without including you. The film would not have existed without your idea. Other people have benefitted from your idea while you have not.

    Say you saw a piece of land that was a place you wanted very much to buy. You take your friend out to see it, and that afternoon he buys it.

    Since there is no law prohibiting the later – I fail to see how this works as an argument for prohibiting the former.
    Quite the opposite – this would be a good example of copyright laws stifling free enterprise.

    Also in the later example, once my friend buys that land – I can no longer use it myself.
    While if he makes a movie, I can still make my own movie.

    On a personal note I must say that’s a really horrible metaphor – I’m amazed you didn’t see it yourself.
    But really, the issue is just so much simpler to understand without the hyperbole.

    Also, some friend…

  206. Rick Turner says:

    The issue, Armand, is whether you or anyone gets paid and what the deal is. I believe that we have the right to make the deal. If it’s work for hire, fine. If it’s royalties, fine. If you do work for hire, then whomever you worked for may own the copyrights. Those are literally the rights to make copies. I don’t see why one should not own intellectual property for some defined length of time…generally considered long enough to get a decent return on the time invested. Are there abuses? In every direction. But artists and creators should have the right to control how they get paid, and others should not steal from them.

    BTW, patents are only good for 17 years so what smart inventors do is not to patent until they think that they have a good marketing plan. That is if they don’t sniff the air and smell competition.

  207. len says:

    I looked up D-TAR, read some reviews and then went to the page and watched the video. Freakin’ awesome. I need a Mama Bear and at that price, next time the tooth fairy is kind, I’ll get one.

    Thanks for the pointer, Rick. That is very very cool. I’ll mention it to some friends. You really are an acoustic player’s guru.

    We now return the thread to it’s dreary topic…. :-)

  208. T Bone Burnett says:

    The things I wrote are neither metaphor nor hyperbole. They are not even hypothetical. They have all actually happened in real time to real people.

  209. Armand Asante says:

    Your story of the land bought is a metaphor for the movie made.
    That, at least, is unambiguously so.

    As I’ve explained it is also an incorrect metaphor – one that obfuscates the issue.
    Therefore I’ve labeled it hyperbole.

    But if that word offends or insults then that also obscures the issue.
    I humbly retract it.

    There is no law prohibiting one from buying land I’ve shown interest in.
    There is also no reason for a law prohibiting one from making a movie similar to one I’ve shown interest in making.

    There is however ample reason to NOT allow people to monopolize ideas. Once an idea has been communicated – it belongs to all who are privy to it.
    And all should be allowed to explore that idea and do with it as they will.

    Copyright is legislation governing ideas and as such there is no reason we should let it stand.
    Ideas should be free.

    If you don’t want your friend to steal your idea – don’t tell him your idea.

    If you don’t want your friend to buy the land from under you – don’t tell him you intend to buy it.

    Simple.

  210. Rick Turner says:

    Armand, your ideas and work should be free, too, then. What do you do for a living?

    That ideas are intellectual property has been true for hundreds of years. The writers, inventors, composers, artists have the right to control the destiny of those ideas, at least for some limited time. These folks put good honest work into it all…and they need to get paid for the work. Unauthorized file sharing is no different that shop lifting CDs, etc.

    The obstinate refusal to understand that IP is actually property is just an indicator to me of how we as a society have allowed amoral behaviour to slip in on the heels of technological innovation.

  211. T Bone Burnett says:

    The land was bought by Michael Ovitz out from under his best friend, Ron Meyer.

  212. Armand Asante says:

    @Rick Turner

    You’ve lived your entire life in a world where creativity is submissive to commercial interests – as have all of us.

    So your reply stems from some notions that are ingrained in our way of thinking.
    In your example someone must hold the copyright – whether it’s the creator or not is irrelevant to my point.

    I’m suggesting enabling a society in which no one holds the copyright.
    Once an idea has been communicated it belongs to all those who are privy to it.

    If they wish to copy or emulate it they would be free to do so. If they think they can capitalize on it – more power to them.

    In a world without copyright, capitalizing on an idea (be it your own or someone else’s) does not preclude anyone else from capitalizing on the very same idea.

    And I’ll end with my usual caveat – I don’t really believe that my idea will come to pass. Copyright is one form or another will stay – there’s too many financial interests involved.
    But I strongly believe a copyright-free world is in our best interest as a society.
    It is a cause worth fighting for.

  213. T Bone Burnett says:

    “I don’t really believe that my idea will come to pass.”

    Your idea?!

  214. Rick Turner says:

    Armand, I do not agree. Simple as that. And it ain’t gonna happen, either. You might just as well decide that everybody gets $25.00 an hour whether they are a bus boy or a doctor, an assembly line worker or an engineer. Your concept is at the heart of what is wrong with communism…the total lack of incentive for anyone to excel.

  215. len says:

    “Copyright is legislation governing ideas ”

    Umm, no. IANAL but… copyright law pertains to the right to copy a fixed form, not an idea. If that is all you got, this is easy: ideas are free. Fixed forms aren’t. It is not a subtle distinction.

    This is about copies made of fixed work where a fixed work is in a medium appropos of a work of that expression type. The protection for such is copyright.

    This is an easy question for forms that are fixed such as audio.

    It’s a tougher problems for dynamic forms (versioned) because again, the distinction goes fuzzy in a mathematical sense. Copyrights applied to software, it turns out, is a bad idea because software by its nature as a medium is copied AND modified. Code not under construction is dead code. Again, the distinction is not subtle.

  216. Alex Bowles says:

    @AA,

    For nomadic tribes, the notion of extending property rights to land in anathema. Wives and livestock, maybe. But the very earth we all came from? Outrageous – even blasphemous.

    I know we struggle to consider IP in the same way we consider ‘real’ property. And because there are very real differences between tangible and intangible goods, there’s probably some merit to this disconnect.

    But when you step back one step further, and realize that the concept of property itself is also an abstraction, then the way forward becomes a bit more clear.

    Though we may envy the freedom of movement enjoyed by, say, Mongolian shepherds, it’s not clear that we’d exchange everything else we’ve developed for this one bit of upside – not when nomadic tribalism is also characterized by primitive and awkward social arrangements, suffocating superstition, and deep vulnerability to a host of horrors that agriculturally oriented civilizations managed to transcend. Though clearly not without problems, the assignment of property rights to physical terrain has, on the whole, produced an astonishing amount of development for the species.

    In a similar vein, copyright is something we choose to create. It may have an arbitrary aspect to it. But once that aspect has been accepted, its existence allows for some truly wonderful things.

    The real issue is that the law that once served us so well has become conspicuously outdated. The problem is that certain groups have tried to exploit this disconnect, corrupting the legislative process to hold back the clock while menacing anyone who stands in their way.

    The naked brutality of this assault has, sadly, turned a significant number of people against the concept of copyright itself. And given the conduct of those who have profited the most from the established order, this recoil is not entirely unwarranted.

    This is why Lessig has called for an end to the extreme, hard-line positions of groups like the RIAA and the MPAA. He rightly sees their attempts to dominate and control every aspect of the audience’s engagement with a work as a moral outrage. And he understands that a pattern of sustained abuse will lead to a state of such pronounced polarization that people will be unwilling to support copyright of any kind – not when Big Content systematically abuses whatever rights they’re granted.

    I’m a big fan of Lessig’s ‘Change Congress’ movement, because it promises to strip these organizations of their undue influence in Congress. This is the first step in restoring civility not only to the debate, but the law itself.

  217. Rick Turner says:

    While they’re at it, how about examining how the Cuban immigrants to Florida got so much power over Congress! What do they have over Washington to have kept this ridiculous embargo situation up? Castro and bro may be dick head commies, but Batista was even worse. Ahh, but that’s a thread changer…

  218. len says:

    @alex:

    Copyright is fixed forms. It is an identity and fixing-media issue. The question of a direct copy of a fixed form as the basis of copyright is settled. The problem is as you say, the inappropriateness of the conditions for the technology. Open doors invite theft and a digital form is by design, an open form. It can be designed otherwise, but being digital, anyone can change that. The form by nature is malleable.

    Copyright controls distribution of fixed forms and this is the basic conflict. The property right and the medium are incompatible given human behavior.

    However, by enabling copyright as a given right once a fixed form is created, the government removes itself from the consideration of ownership unless asked, and then, the Copyright Office is simply a witness of a registration form.

    It leaves it to lawyers to prove assertions of fixed form. That is the damping function over the issue of what a fixed form is and how one can determine if a fixed form is a duplicate of a distributable record of authority. This is right of publication.

    IOW: copyright is backed by registration and courts. That’s all.

    On derivative works: someone brought up reuse of other artist’s work. That should be left to the artists to work out. Sharing IP progresses the state of the art. The web is built on the menu item, View Source in your browser. Common open languages with view source created a multi-billion dollar market where once there was only islands of operability. Sharing ideas really works.

    Fixed forms? By consent. It is property.

  219. Evan says:

    Zow… so many points to reply to.

    I don’t think that composing or writing isn’t work. I think that earning royalties for work performed one time isn’t work. I am morally opposed to royalty-based payment for work. I think it’s dishonest. That’s my opinion.

    Yeah– I am an amateur musician and photographer. I usually don’t bring that into these arguments, because someone will inevitably make some statement like “Yeah– but you’re just an amateur. Your stuff is no good / You don’t try and make a living off of it / You don’t have the same dedication as a professional, so you don’t understand..,” Since it’s been brought in, though, I’ll say this about it: I love the songs that I’ve written and co-written, and they were all released with copyright waived because I think that’s the only morally right thing to do. There is as much love, heartbreak, happiness and sorrow in the songs I wrote as those written by anyone else. They’re not “my songs”– they’re just songs I happened to write. Once I played them for somebody else they weren’t “mine” anymore. I rather like that about them. They needed to come out of me. No one owns them– they’ll “live” forever on their own, provided someone out there likes them. It hurts me when someone claims to “own” a song, an idea, a story, or an image. To my mind, you can “own” it as long as you keep it in your head– after it’s out, it’s not yours anymore.

    When I shoot pictures for other people, I work in a strictly work-for-hire arrangement. I don’t try and “make a living” at it because it would be financially suicidal to try that. (And, of course, I end up giving a lot of no cost no-rights-reserved licenses to people when I take a good picture of their kids or their pets out in public, just because I think it’s friendly to share a good picture of someone when you take it.) I don’t whine, as some photographers do, for some kind of legislative restrictions on work-for-hire to protect a failing business model. I make the financially prudent choice of just not betting my income on it. If work-for-hire, the ubiquity of cheap photographic gear, and interested people who don’t care about earning royalties kills the “traditional” photography market I won’t be particularly sad, and I don’t think society will lose anything for it.

    I do all my IT consulting work as work-for-hire. I could have kept the copyright on various pieces of software that I’ve written and tried to re-sell it, but I won’t do that. That kind of business is not morally right to me, and I won’t succumb to that temptation. Re-selling labor that I’ve performed once over and over again is as audacious as asking my Customers to give me a cut of their future revenue for use of a system that I’ve installed for them. That’s not an arrangement that the market has deemed viable (for the most part), and it’s not something I’m comfortable with, morally.

    I guess the fundamental disconnect that I’m having with you guys is that I do see art, science, and technology as being about benefiting society. If they happen to benefit their creators then so be it, but to my mind the primary beneficiary should be humanity as a whole. I also have a fundamental problem with anyone feeling entitled to being compensated again and again for work they’ve done one time. It doesn’t sit right with me, morally, and I speak out against it. My position is as moral to me as Rick’s position is to him (and probably as repugnant to Rick as his position is to me). I don’t buy that physical items (subject to scarcity) and intangible informational items are the same thing, and I’ll never be convinced of it. (I can’t wait until “3D printers” and, eventually, from the molecule-up fabrication become a reality– that will really turn this argument into something interesting!)

    It’s hard for me to not be militant and reactionary when the lobbyists for the industries that benefit from business-as-usual have tried to get legislation enacted to ban things like general purpose computing, and throw regulator hurdles up for creating simple devices like digital-to-analog converters. I approach this from an extremist position because these business and legal interests approach their side from an equally extremist position. It almost feels like kill-or-be-killed. Stallman’s “Right to Read” seems like it’s getting closer and closer to coming true each day, and that scares the heck out of me.

    I certainly don’t want to be mean-spirited with you guys. I rather enjoy the conversation here, Jon’s blog, and the comments that all of you right. I get all “high and mighty” and preachy because it strikes a moral nerve with me. I’m sure that I come off so “mean spirited”, in part, because I really do want to see royalty-based business models destroyed. I can understand how that would piss someone off. (I can imagine how I would feel listening to someone preaching about stopping the “gays” from getting married, or bringing prayer back into schools… *shudder*) When Len says that Microsoft does the “right thing” with respect to artists, he’s making as much a moral statement as I am. It just happens that my position is unpopular with this particular crowd.

    I don’t particularly want to pay a “broadband mechanicals license”– I don’t download copyrighted materials over the Internet illegally, and I don’t plan on ever starting. I also have a lot of questions about how it would be made to work economically for companies who need lots of high-bandwidth Internet connectivity but aren’t using the connections to do things like “download music”. I don’t want to see the whole Internet re-tooled to support some “war on copyright infringement”, especially since it would serve mainly to create another underground economy (think the “war on drugs”).

    T-Bone: I’d beg to differ w/ the point you made re: that there wouldn’t be IT consultants if not for copyright and patent law. There was an IT industry in the years before patents and copyright applied to things like program code. There will always be a need for custom software that has no commercial market outside the end-user it’s being written for. Commercial-off-the-shelf software may rely on our copyright and patent regime to keep it going, but the really fun stuff– learning about the things that make individual businesses unique and coding software / building systems to support that will always exist.

    Len: I’ve written the semantic web off as a bunch of academic mental masturbation. I’m part of the camp that is very skeptical of the whole idea. There’s undoubtedly the potential for a network effect there, but I just don’t see it taking off unless it *does* something– and right now, that’s a hard sell.

    The idea of legislating how communications protocols work seems like both a major hindrance to innovation and something akin to herding cats. If some well-laid plan to encumber the Internet with legal roadblocks does come to pass, it still doesn’t “put the genie back in the bottle” when non-watermarked or encrypted copies of works inevitably do leak out. You’re talking about turning the Internet into a giant “AOL”, and taking away the right of “free assembly” in the digital world. Presumably, even something like setting up an ad hoc network with a few friends in a room would be something that would need to be subject to monitoring and enforcement (no doubt being facilitated by things like legally-manded “trusted computing” devices in our computers and communications gear– making our devices actively work against the wishes of their owners). Ewww… no thanks!

    Rick: While I want to see royalty-based business models go the way of the dodo, I don’t agree with breaking the current laws. I bend over backwards to avoid copyright infringement in my personal and professional lives. Infringing copyright law isn’t “civil disobedience”– it’s just wrong. I want to see the law changed, but I’m not going to be a criminal in the meantime, and I don’t agree with others being criminals either.

    To my mind, those would would expect the recurring compensation of royalty streams are the “high and mighty” dictating to the rest of us “mere mortals” (the people who granted them copyright in the first place) how things are “supposed” to me. Society gave copyright, and society can take it away or renegotiate the terms. If that means that the “professionals” end up taking their ball and going home, so be it. I think we’ll get by.

    I also can’t speak to the raging BS that is the IT industry, with respect to the “geek stranglehold” you spoke of. I think I have a very “machines of loving grace” type attitude. I want computers and IT to do things that make life easier for people, and decrease needless human toil. I’m looking for the HAL 9000, the flying car, and all the other promises of the past, too.

  220. Alex Bowles says:

    Evan,

    Provided all parties enter freely, what makes one payment arrangement more any moral than the other? Isn’t the real concern settling on something that works for everybody involved?

    I can understand reservations about selling the same work over and over again, assuming that the first party you sold it to expected some sort of exclusivity. Otherwise, where do you get the idea that it’s wrong to distribute the costs of production among a broad range of users who only agree to pay at the time of actual use?

    My concern with the system is in the abusive nature of collection agencies operating as though the social norms in which their practices developed are still in force today – even though we’re living through the biggest communications revolution since movable type.

    But these are practical concerns. You’ve lost me when it comes to ethical violations inherent to royalties themselves.

  221. Rick Turner says:

    I almost hate to say this, but Evan has outed himself as someone I do not even care to engage with in debate. He’s that completely outside of what I consider to be an ethical norm. I can only hope that he gets hit in his profession with the same quality of disruption that has hit many of my friends who are professional musicians and songwriters. It’s about whose ox is gored, I think. It’s really easy to get all political about someone else’s livelihood. When the chickens come home to roost, it’s another thing. Just wait ’til your job is outsourced to Mumbai, Evan…IT is going the way of call centers and leaf blower wielders…

    BTW, I have nothing against amateur musicianship or composing music to give away. I do it myself. I play for free in public. But that is my right to choose…not your right to demand.

  222. Evan says:

    Alex: I don’t think parties are entering into these arrangements freely today. At the very least, the term of copyright has spiraled out of control. The legal interests of those who would keep things “business as usual” wield far more power than a disinterested public.

    It’s purely a moral issue with me. It’s not honest, to me, to expect compensation repeatedly for work I’ve done once. If the “production cost” is so high that it needs to be amortized like that, it’s probably not something I should be “producing” in the first place. Cal me eccentric, insane, stupid, or whatever, but I don’t think a good person operates that way– and that’s all it comes down to. (What can I say? I’m a biological entity– I can’t be rational all the time.)

    Rick: Well, I am what I am. I don’t mind agreeing that we can’t rationally discuss the issue. You have your take on it, I have mine. I enjoy reading your posts, and we certainly don’t disagree on every issue (or even, I daresay, the majority of issues).

    *I’m* not demanding “free” anything from anybody. The way that technology has changed the world is just making things be that way. I don’t buy the “information wants to be free” argument, but I would accept “bits are really easy to copy”.

    Heh heh… If my “job” gets outsourced, I did a pretty poor job keeping up with my market. I’m fairly certain that, so long as there’s small to medium-sized businesses, I’ll have some sort of job. I’m not too worried about the face-to-face relationships I have with my Customers getting outsourced away. If they do, I’ll find something else to do. My job is something I do, not something I am.

  223. T Bone Burnett says:

    Evan- For a musician to get to the one performance, as you call it, that is reproduced takes years of practice. Unpaid. It often takes hundreds of hours simply to record. I would suggest you do some actual research before you write any more of this stuff. You might start with The Work of Art in the Age of Mechanical Reproduction by Walter Benjamin.

    http://www.arthistoryarchive.com/arthistory/modern/The-Work-of-Art-in-the-Age-of-Mechanical-Reproduction.html

    There would not have been an IT industry without intellectual property. There would not have been washing machines. Or air conditioners. Or blenders. There would not have been any of these machines that move in a circle.

  224. Anders says:

    @Alex

    One thing about copyright that weigh on my moral scales is that it is a law about *exclusion*.

    It is a law about denying someone access to something, that they could have had at no cost or inconvenience to anyone else.

    It is a sub-zero sum game. It is about make a lot of people loose opportunities so few people can have more.

    Whereas if there is only pay for the initial copy everyone win. Artists will work if they can secure enough money for the initial copy. Otherwise they wont.

    And this has nothing to do with communism; patent-law, copyrights are massive government interventions in free society. The 20 year plans of patents, and life + 95 year plans of some copyright makes the communist 5 year plans pale in shame.

  225. Rick Turner says:

    Anders, go into a store and take whatever you want and walk out the door without paying. It’s no inconvenience to you, and it’s actually a convenience to the store owner because he or she doesn’t have to deal with a cash register. Capiche?

    You’re ignoring the fact that to take music from a musician without paying is an “inconvenience” to the musician whom you and Armand so thoroughly wish to dismiss as irrelevancies.

  226. len says:

    “Len: semantic web -skeptical of the whole idea”

    It’s is a very relatable indexing system, Evan. If copyright is weak to enforce, registration is easy to manage.

    Copyright is not massive government intervention. The government is only a witness of registration. Courts are arbiters of asserted disputes. The copyright can only be enforced to the cost of enforcement.

    As to the “Sonny Bono” to-the-end-of-time-+1 formula, I agree with you.

    Fixed forms degrade by time of initial copy in the right of the claim. That is essentially the function some want. The question is the rate. That is a rule. That is negotiable.

    As to defense of the right: those who benefit do. That’s life.

  227. T Bone Burnett says:

    No inconvenience to anyone else. Convenience is hardly a criterion on which to discuss these matters. Many things are convenient which are illegal. And wrong.

    Art is not information.

    By the way, in a purely technological age, if someone were to hand you a book, you would view it as an incredible advance.

  228. Tom Wilmot says:

    Evan:

    One thing I’m noticing in the constant back and forth between the pro-copyright camp and the anti-copyright camp is that getting and enforcing copyright is a matter of choice.

    If you choose to operate under the principle that “information deserves to be free” you can release all your work without any sort of IP constraint on it. It’s been done in the past and it will be done in the future.

    Back in 1979, when Dan Bricklin and Bob Frankston came up with VisCalc, the initial spreadsheet program, programs were thought to be mere mathematical algorithms, and mathematical algorithms, as laws of nature, were not patentable. 3 years later, the Supreme court ruled otherwise in Diamond vs. Dierh. Both authors have stated that if their algorithm WAS patentable, they would have pursued that, but the fact that they couldn’t protect it didn’t stop them from releasing it. The advent of IP protection actually ramped UP technology, rather than bottlenecking it. There was a profit motive available to justify large expenditures in R&D.

    Like it or not, economics are part and parcel of human existence. Communal structure works to a certain extent, but there is always the issue of a fair trade. Equitable recompense always comes into play on some level or another. Patents, copyrights, distribution and license agreements are merely the equitable agreement between the creator of thing A and the purchaser.

    In work-for-hire, it’s no different. You, as the supplier of the service or creation, either set a rate or fee or accept a rate or fee. The entity desiring your service or creation is willing to pay that fee (in theory). The work is done and you are paid (in theory).

    If you are a freelancer, I have no doubt that you have encountered the client that balks at paying. Suddenly, you are handed the fuzzy end of the lollipop and either you figure it’s not worth the hassle trying to keep going after the client for your dough, or you do the whole legal thing for recompense.

    DMR was just a really lousy model of collection.

    Now, on the issue of copyright stifling the flow on innovation, again, I’d respectfully disagree. As an illustrator, I can tell you there are caveats in copyright law that understand that in the visual arts, a certain amount of dipping into the “image bank” is recognized and understood. As long as an image that has been “sourced” is altered 50%, courts have ruled that it may be regarded as an “original work”.

    The notion that the mere existence of copyright is some sort of draconian bottleneck doesn’t stand up to the facts. Human history is a long story of things being built upon things being built upon things. No one is prepared to go so overboard on intellectual property protectiont aht they’re going to attempt to draft legislation that would outlaw anything that even vaguely resembles anything. Talk to a patent attorney, they’ll tell you that interpretation leans further on to the side that certain simultaneous replications are inevitable.

  229. Jon Taplin says:

    We all agree that extending copyrights to the end of time was not what Thomas Jefferson had in mind. However, as long as a reasonable term lenght is kept, we will inevitably have to move to a mechanical collection system. The best place to charge this is at the ISP level where the routers can detect watermarks for sampling puposes.

  230. len says:

    ISP : Is this the customer’s ISP or the vendors? What is being sampled? If an instance to be compared to a record of authority, where in path of file copying? Sampling only services registered ROAs. Sampling at the ISP does nothing for the CD unless the CD is sampled first. However, for the sake of copyright law enforcement, those are equal cases.

    It is hard and expensive to get protection by forcing other commericial entities such as the public ISPs to provide these services.

    A service organization provided by some entity including artist/owner formed consortia can do that. Essentially, that is what ASCAP/BMI/SESAC do. The model is good, but the practical means no longer work for the distribution model and have toxic effects on the ground of the work.

    Two services:

    o Assertion of copyright by means affixed to the fixed work

    o Artist/customer side verification of authentic identity. Whether watermark or user entered registration, the assertion has to be testable.

    How rates are applied and collected is the issue that is always negotiable. No systems for collection are perfect and negotiations fail. What is of value (least-conflict value) is enable means to make that negotiation or transaction so easy that it is preferred to other means of persuasion when negotiating or collecting.

    IOW: you don’t have to make it 100% impregable to the offenders if you make it 75% easier for the customers.

  231. Rick Turner says:

    Jon and Len, if there were a fee collected from ISPs and distributed fairly, then nobody would bother to hack the digital watermarks tracking plays and downloads. The money would be collected no matter what. All that would be required is an equitable means of distributing the money collected. ASCAP and BMI aren’t perfect by any means, but they represent a business model that works. If consumers don’t feel the pinch other than a fee added to their access, then what the hell…

  232. len says:

    It is a lower-force function, yes. It is a tax on broadband collected at point of sale. The question is still,

    What is being tracked

    Where is the tracking function situated

    How are tracking functions related to ROAs (how do publishers register and audit plays over asserted copyrights?)

    Are plays at the same rate as copies given the means of transmission means a copy function may as well be impossible to block? A stream is a stream.

    A goal of high priority should be *standard* means of auditing, the book keeping so the relationship to fees is clear and transparently audited to any subscribed entity (may be a person; may be a bot; so it is best described as a service). See Service-Oriented Architecture (SOA).

  233. Alex Bowles says:

    @Jon,

    Effective watermarks at the ISP level won’t fly, because the proposal assumes that users don’t have the ability to encrypted shared files, exchange files offline, or via standalone networks, and that that the internet itself can remain useful without the ability establish secure connections.

    It also assumes that the filters can’t be spoofed, and that the general audience for a service will tolerate the performance hit that such filters are certain to impose. In short, they’d be a lot like the security theater we now enjoy at airports.

    A better approach may be via services like Tineye, which help owners find out the one bit of information that really matters – where their stuff ends up.

    The value of this service is still quite limited, as it’s still on the steep part of the indexing curve for all the sites on the internet (a key requirement). But this will change over time. And when it does, it (and services like it) can change the terms of this debate dramatically.

    From there, they can asses the determine for themselves whether the use is a helpful promotion, or a harmful misappropriation.

  234. Alex Bowles says:

    Oh damn, copy paste errors strike again.

    The last like was supposed to be further up. It should have read “from there, they can determine for themselves whether the use is a helpful promotion, or a harmful misappropriation, and respond accordingly.”

    That, it seems, is the basis for civil law in general, and the right place to keep this issue in general. Treating it like a criminal matter (i.e. active, and independent policing) seems like a dangerous opening for other, completely unrelated groups with more nefarious intents, who could use the same infrastructure to very damaging effect.

  235. Alex Bowles says:

    like line.

    More coffee, please.

  236. Rick Turner says:

    Len, once again I think if a fair fee is collected, you’ll see people not bothering to hack digital water marks, etc. And then there could be some monitoring of traffic based on “automatic tune recognition” software. I understand your point about it being more cumbersome than digital watermarks, but it’s a hell of a lot less cumbersome than the old humans with earphones system that worked for many decades. It’s also easy enough to keep an eye on sites that might want to get around the fee based system, besides which everything goes through an ISP sooner or later other than literal hand to hand copying.

    I guess the only issue might be how it would work with “free” public access broadband. But the current system works with “free” radio transmission of music. There are ads all over public access broadband, so that might take care of the issue.

    I just don’t see why this is such a big deal or why it wasn’t addressed at the very beginning when it first became possible to upload and download and stream music files and now video files. It’s not like nobody knew that all this would be possible. Well, I guess the dinosaurs in the music and film businesses couldn’t see this. They hate change and are always frightened of new opportunities to make money. Weird…

  237. Alex Bowles says:

    Rick – I think a larger point is that the dinosaurs did see certain possibilities, and pursued those to the hilt.

    Specifically, they saw the potential to control and / or limit every aspect of the audience’s engagement with digital content. By exploiting this aspect to the absolute hilt (or trying to, anyway) they finally revealed a profound contempt for the audience that was long suspected, but never so clearly demonstrated.

    Sony, for example, did terrible things to their reputation with the whole root-kit debacle. While it’s become clear that the the executives involved didn’t really understand what – exactly – the third party vendor they hired was doing, the lack of oversight also indicated that they didn’t really care. Nor, it seems, did they care all that much about the very laws they were using to prosecute members of their audience.

    The message received was: ‘Breaking your stuff is okay when we do it / breaking our business model is not okay, period.’

    Add a penchant for lawlessness to general contempt, and it’s no wonder they dropped to ball so completely. The truth is, managing a revolution calls for talents of the very highest caliber. As it was, fate handed the job to people famous for being on the low end of the scale – most of whom are now history. The rest of us are struggling to pick up the pieces.

    So, onward through the fog it is.

  238. len says:

    “I just don’t see why this is such a big deal or why it wasn’t addressed at the very beginning when it first became possible to upload and download and stream music files and now video files.”

    It will work to the extent that it will enable honest people to do the right thing. It won’t get you Marines to raid a warehouse or shut down a server. All of that requires the usual legal mojo and we can make that faster, easier and more transparent, but at the end of the day, unless you want to launch your own DNS attacks on offending servers, all you can do is call the lawyers.

    Why wasn’t something done? Well, Sherman, that’s a Wayback Machine trip.

    It was noticed. Some other place or time I’ll describe the conversations . It always started with, “Can’t stop it and infomation wants to…” and ended with “You are soooo paranoid.” Never mind the cliche. In the beginning of the Web, the highest good was to promote, sell and expand it. We all knew it was the medium of the new generation and almost everyone was in a fever to get money back. What followed was predictable: the Internet bubble. Now we are in a second generation trying to figure out the policy implications we should have to begin with. What I can say is the original hypertext pioneers were very concerned. The kids ran over them/us like road kill. If the silent zeitgeist is miffed, it is a miff of their own making.

    Mainly we agree. All I’m saying is it isn’t the cumbersomeness of analysis that I am talking about. It’s just a service. The question is where that is in the architecture. There are options and some interesting business models for that.

    There is a difference between monitoring samples and requesting tests. Both are useful.

    I realize it is the way radio is sampled, but radio is not a packet-based system where to watch one bit or type of data, you have to watch them all, and radio is not public/personal communications. It’s a one way broadcast.

    Many would object to full-up monitoring or audio internet radar guns at random. Isn’t that what we complaining about when the TLAs put the full-up packet monitoring and analysis in the West Coast trunk facilities?

    There has to be a transparent policy.

    OFFTOPIC: @rick: I blogged Mama Bear at lamammals and 3DonTheWebCheap. Hope you don’t mind. It’s something the heads who record on low budgets can make heavy use of. I’ve been promoting the concept of virtual reality albums (a navigable, animated form of a non-linear audio album), so I get some traffic from the VR wonks. That would another fun topic but not in this thread.

  239. Rick Turner says:

    Interesting, Len, and agreed. And thanks.

  240. Armand Asante says:

    “I don’t really believe that my idea will come to pass.”

    Your idea?!

    haahahahah
    Yeah, I’m a genius…

    Look, if you got nothing to say then you got nothing to say.

    And I thought this was a place for intelligent discussion…forgive me for that mistake.

  241. Armand Asante says:

    You know what – it’s not a mistake.

    I don’t believe in legislating ideas.
    I DO believe that once an idea has been communicated to someone else – it is theirs to do with as they wish (I even wrote this in a previous post – how prescient of me).

    So it IS my idea. It might not have originated with me but it’s definitely mine now.
    And I give it freely to anyone who wants to listen.
    I won’t claim propriety over it, nor litigate if someone else uses it…

  242. Rick Turner says:

    A troll…

  243. Alex Bowles says:

    One more thought.

    Ingrained attitudes about the audience and control act as blinders. I’ve been thinking about this a lot in regard to the struggles of Blu-Ray.

    When asked why it wasn’t included in the new Mac laptops, Jobs replied by saying “it’s a world of hurt”. He was referring to the astonishingly invasive design requirements mandated by Sony for computers that support the technology (all of which is deigned to limit the users ability to control their own media).

    And by ‘invasive’, I mean the presence of this stuff degrades the overall performance of the system. In Apple’s estimation, they’d only be able to include Blu-Ray in what amounted to ‘broken’ laptops.

    This was exactly the mistake Microsoft made when designing Vista to accommodate similarly onerous requirements tied to the then-living HD-DVD format, as well as studio produced HD material that could have been made available via WMP. Though this was by no means the only development error contributing to the failure of Vista it was, from what I understand, a fairly major factor.

    Both companies were presented with the same choice – cater to the studios, or cater to the users. Apple went one way, Microsoft went the other. But the larger question is why did this have to be a zero sum choice in the first place?

    The reason is that the studios were dead set against anything that would give HD releases the same rip-ability as conventional DVDs.

    One of their biggest problems with the DVD format is that it didn’t originally include much in the way of copy protection, and became wildly popular (and thus, established in people’s living rooms) long before good DVD ripping tools were available. As late as 2005, hacking DVDs was still a seriously geeky thing, in terms of the required skills. But with the inevitable emergence and proliferation of tools like Handbrake, that changed entirely.

    Studios can, of course, increase the levels of protection on new DVDs, but not without creating massive computability issues with the majority of existing players. It didn’t take too many returns before they understood that hardware-dependent security measures can’t be imposed retroactively.

    That’s why they were dead-set against letting either the HD-DVD or the Blu-Ray formats into the wild before getting assurances that every single player ever made would be subject to complete lock down. What they wanted was a format that was born crippled.

    I have no idea how much time was lost dealing with this, but what’s become clear in the meantime is that the window for optical media in general is closing, and that Sony will be lucky to break even on the billions invested in Blu Ray development before it does.

    The competition is coming, of course, from streaming media. There’s even been speculation that Microsoft’s involvement in the HD wars, and their support for a competing format, was intended to keep the next generation of optical media solutions sidelined until direct broadband distribution had time to mature (which is exactly what’s come to pass).

    But here’s the rub with HD from the internet: the quality sucks.

    Seriously, it’s absolute shit. And the reason is that ‘HD’ isn’t a measure of quality at all, even if consumers think it is. It’s simply a technical convention – a universal standard for signal compatibility for every piece of gear with a place in the chain from cameras to screen.

    Yes, people assume it’s ‘better’ because it has the potential to deliver a vastly superior experience. However, what distributors actually decide to place within this new and fancy wrapper is entirely up to their discretion. For a variety of reasons, the preference has been ‘provide the absolute minimum’. As a result, customers haven’t been given anything exponentially better than DVD.

    Sure, differences are perceptible – especially on higher quality monitors. But for the most part, standard DVD is ‘good enough’. And so it remains in place – getting ripped madly, as people become more used to watching stuff on laptops, and paving the way for direct downloads that will eclipse optical (and Sony’s multi-billion dollar investment) completely.

    So what could Sony have done differently? Given that they also own their own studio, they could have gone the opposite direction, and changed the game completely.

    Specifically, they could have realized that the biggest limit to rampant piracy is not in legal prohibitions, or technical schemes like DRM. Rather, it’s in bandwidth, and the capacity of the internet itself.

    Instead of fighting the future by withholding pixels, they could have overwhelmed it by flooding the market with so much data, optical discs would become the only viable way of dealing with all of it economically.

    This was never an option for the music business. Songs were always hard to protect, as very high quality encodes (256 kbps and up) are still small enough to transmit easily. Not-quite DVD quality features films are ticker, but still feasible, and the convenience of streaming content of this grade is what’s making services like Netflix direct, Hulu, and the high-res options on YouTube viable.

    But nothing compares to the glory of full-blown 1080p material encoded at 50mbps. (which is the maximum throughput for Blu Ray). And more importantly, nothing short of a multi-million dollar broadcast satellite truck can transmit a stream of data this massive in anything close to real time. And that’s not about to change anytime soon. After all, Moore’s Law applies to microprocessors, not transmission speeds. And while compression algorithms are improving, major gains are still very hard won, and depend on broad changes in standard user infrastructure for success.

    In other words, in the face of a congested and easily choked internet, local, hardware-based playback is the only way to handle top-quality HD efficiently. Most people, however, have never seen anything approaching top-grade material, and have no idea what they’re missing.

    I got savvy around 2003, when I started doing a lot of work with a post production company in LA called Laser Pacific. At the time, they were one of four companies in the country who had invested in a realtime HD encoder. I was an early entrant to the market, and delivering two hours of fresh broadcast HD content every two weeks.

    The interesting thing was to see how they were expanding into digital dallies for feature film production. (Ultimately, they mastered this craft when working with Michael Mann and Bryan Carroll on ‘Collateral’). The salient point is that, for MPEG-2 material, DGA cinematographers wouldn’t accept anything encoded at less than 25 mbps to evaluate footage. At the same time, the absolute maximum that the ATSC broadcast standard allows is MPEG 2 at 19.39 mbps. So there’s a gap between what Hollywood sees, and what everyone else can actually watch.

    In reality, most broadcasters don’t even provide this much. Instead, they prefer to transmit signals encoded in the 13-16 mbps range to preserve precious bandwidth for a greater number of channels, and the higher ad revenues that come with increased inventory.

    With online distribution – which deals with a similar set of bandwidth constraints – you get an equally compromised picture. Better than SD, to be sure, but not even remotely close to what the filmmakers themselves are seeing, and, by extension, what the studios actually have in their possession.

    Basically, there’s a boatload of quality that filmmakers bend over backwards to create, which is then left to rot on the vine as low-grade derivatives are shunted into Walmart, and onto cable TV.

    I realize this argument is getting long, but consider one more point before I wrap it up; it’s generally accepted that Betamax offered a better experience than VHS. However, due to Sony’s irrepressible desire to extract maximum value from everything they touch, and the monopoly they tried to create for themselves (by refusing to license the technology), they created an opportunity for everybody else to settle on a (relatively) open, though lower grade standard that, with a bit of clever marketing to go with lower prices, became the hands-on consumer favorite.

    Remember, back in the early 80’s, quality was not top-of-mind. The sheer amazement of recording TV and watching studio movies commercial-free on your own schedule and in your own home was enough to engage consumers completly. By the time the initial euphoria wore off, Betamax was ancient history.

    Sony is in the exact same position today. Consumers – who have had very limited exposure to the true capacity of the HD format – are making decisions based on every criteria but quality. And Sony, abetted by the natural limits of the ATSC broadcast standard, is letting them.

    What they have had was a golden window of opportunity to establish a benchmark in the minds of consumers for what HD could – and should – be. They could have done this by introducing a DRM free format, and, via their studio, releasing super-high quality discs (i.e. MPEG-4, H.264, or AVC at 50 mbps, which is roughly equal to MPEG 2 at 75 – 100 mbps) that would make the ‘HD’ dreck available online look like the dreck it really is.

    In short, they could have changed he game before the competition even made it onto the field. Instead, they got bogged in a format war and content ‘protection’ issues, letting the guys who wanted to eat their lunch quietly sharpen their knives in peace.

    So instead of building a firewall for themselves by getting cheap Blu-Ray players into everyone’s living rooms before streaming media could make its play, they’re (once again) in direct competition with a lower-grade, but far more accessible option that the audience – unknowledgeable as they are – is willing to accept.

    And the worst part is that the fear that held them back is entirely unfounded. Again, Moore’s Law doesn’t apply to internet speeds. Sure, you could rip an unprotected 50mbps/1080p disc, but what would you do with it? Even if you had terrabytes of storage (which is increasingly common), you’re stuck with the same transmission issues: massive content / tiny pipes.

    In other words, you’re in exactly the same spot as commercial broadcasters who have already ‘solved’ the exchange problem by degrading the content to make it fit their pipes. So if you wanted to ‘share’ at remotely acceptable speeds, you’d probably have to degrade the content to – you guessed it – the quality level of a standard DVD.

    Meaning your fancy uber HD content would – in a networked environment – become indistinguishable from the SD versions that will, for the reasons noted above, be freely available.

    Bottom line is this: the studios have already lost the war when it comes to controlling SD and low-grade HD content. They can still carve out a profitable place for themselves by abandoning DRM for movies, and freely releasing super high-quality Blu-Ray DVDs – which shouldn’t wholesale for more than $10.

    But they better do this fast. As everyone who comes near online media discovers, the profit margins are depressingly low when compared to those for physical media. And if people do what they did with VHS, and buy into a delivery infrastructure that sacrifices quality for convenience, the entire ecosystem will arrange itself around this internet-friendly norm. At that point it’s Betamax all over again, with one big difference – Betamax didn’t represent a multi-billion dollar investment.

    Had Sony done the savvy thing in 2006, they could have extended the life of optical formats by five years, at least. Instead, they obsessed over DRM, and the problems of maximum value extraction. Now they’re on the wrong side of everything, and screwed three ways from Sunday.

    Personally, I’ve always taken offense at astonishing ignorance inherent in the punk rock entitlement idea the producers ‘just need to invent new business models’. Successful operations, like anything else that survives in the natural order of things, enter symbiotic relationships, and evolve accordingly. There’s no ‘just’ about it. Knowing how absurd the demand is, it’s very easy to say ‘fuck you’ to those who make it. You want to squeeze them for every dime. And knowing how hard it is to do something new (dependent, as you are, on the unpredictable choices of others) it’s very easy to fall back on old habits – especially when they worked well, and you’ve got the law on your side.

    But this just lands you smack dab in the middle of a copy fight. And it’s with people, who, wrong as they are about so many things, still have history on their side. So if, like Sony, you obsess over enforcing what you once had (or could have had) chances are you’ll end up like Sony.

    Alternately, you can simply acknowledge that we’re in a different age, realize that nobody knows what’s coming next, and accept that whatever used to work, great as it may have been, simply won’t continue to fly – not when the engine behind it’s creation was based on a 20th century extract and exploit model that paid little attention, and even less respect to the broader environment.

    What matters now is, at the root of any enterprise, a deliberate effort to create more value than you receive, along with a payment plan that customers are happy to support. Not just accept, mind you, but happy about.

    If you go the other route, and consume valuable energy trying to get paid for every play because it’s your ‘right’, you’ll get punished. People don’t like being strip-mined. At the same time, if you squander your efforts in arenas where you must fight to get paid at all, you’ll crash and burn. Just walk away.

    And if you manage to find a middle path, and deliver more than you consume – but only just – you’ll have your thunder stolen by the more resourceful, and those able to maximize the delta between giving a lot and getting enough for sustainable development. Efficiency and restraint are the watchwords.

    It’s a very un-20th century outlook, I know. And that’s exactly the point.

    p.s. – Even, I don’t know if you’re still reading, but in case you are does this change you mind? I mean, if somebody establishes a non-onerous royalty stream that enables activity which, in the grand scheme, produces a generous margin of ‘gift’, is it still wrong?

  244. Rick Turner says:

    Alex, very interesting, very appreciated…

    Sony has been in the forefront of stupid decisions on hardware for decades. The one thing they got right was partnering with Phillips on the old audio cassettes which had a good long run. But remember Elcassettes? And digital audio cassettes? Then minidiscs? And they price their flash audio recorder, the PCM-D-1…a really good one…way out of the market. Oh, well…

  245. T Bone Burnett says:

    Let’s deal with this in the actual. In O Brother, Where Art Thou?, we used (used) the song I Am A Man of Constant Sorrow as the epic song of the epic hero of Ulysses. I Am A Man of Constant Sorrow is a song written (and by written, I mean first copyrighted, no one creates by fiat) by a blind fiddle player from Kentucky named Richard Burnett. That work passed into the public domain (at the time, copyrights only lasted twenty years, if memory serves), and since then there have been fifty versions of that song copyrighted using Richard Burnett’s version as prior art. When we were releasing that song in a commercial venture, a movie, we could have chosen either to copyright the song ourselves, or to license the song from one of the other copyright holders. If we had copyrighted the song ourselves, all fifty of those holders of copyrights could have come claimed ownership of the use and sued us. Since we had all learned the song from The Stanley Brothers version/versions, we decided to obtain a license for the song from them. The end of this story is that Ralph Stanley, one of the great American musicians of all time and a hero world wide, who had gone out and cleared a path for all the rest of us, driving from Washington, D.C. to St. Louis, Missouri to play for two hundred people in a church basement, and who, even after the extraordinarily generous contribution he made to our culture over fifty years was still a man of extremely limited means, made about a million dollars.

    Not all record artists are record industry hypes. Few are, in fact. One cannot base reason upon a small and distorted sample, especially when one has not done his homework to begin with- who, in essence, does not know what he is talking about (and I do not mean that to be argumentative, I mean it exactly), who sees the matter only through a very narrow pipe.

    Many great things have happened because of the order that resulted from copyright law.

    Without copyright law, we would not have had The Carter Family, Cole Porter, Irving Berlin, Duke Ellington, Hank Williams, The Beatles, The Clash, U2, Dr. Dre or any of the rest of composers and music artists that contributed to our extraordinary treasury of recorded music. Not that we wouldn’t have heard them. They would not have existed. Or, in another less precise way to say that for those who would take exception to that statement, they would not have happened.

    You guys got to get off this tunnel blind idealism. Anarchy is a child’s game. I, for one, would appreciate your help in coming up with something better, if you are up to it.

    I would like to say that I enjoy Banksy’s work. Banksy writes that copyrights are for suckers. I am not unsympathetic to that notion. Here is a hypothetical proposal for the people here who oppose copy rights. You are a composer and a musician, a concert guitarist who has been studying the guitar for twenty years. I am a recordist. I come to one of your concerts. Given the extraordinary caliber of your musicianship, I would like to record a performance by you and manufacture and distribute it. It will cost about $500,000 to record, manufacture, and distribute your work best practices. There is no guarantee of return. (You are, of course, free to do this yourself. You are also free to record the same material in your bedroom for nothing and release it for free on the internet, or to forgo recording altogether. You could also simply allow your audience to make whatever kinds of recordings they want and do whatever they want with them, including reproduce and sell them at any price they want or can get, no matter the quality.) At any rate, I am willing to take the risk. What would you consider a fair deal? Should I pay you to allow me to take this risk? Should you get a royalty for your performance? Should you get a royalty for your compositions?

    Here is one other actual story for you from the same film. James Carter recorded Po’ Lazarus when he was a prisoner on Parchman Farm in Mississippi in about 1950. Alan Lomax recorded the performance. Fifty years later, after the soundtrack had been selling about a hundred thousand copies a week for several months, the Lomax family hired a private detective to find Mr. Carter. He was found living above a store front church in Chicago where his wife was a minister. He knew nothing of the movie or the album. He also received a great deal of money, more than he had ever seen, for his performance fifty years earlier. The same story (which was, of course, the story of the film- a group of convicts records a song that becomes a hit without their knowing it and leads them to great fortune) could be told of The Fairfield Four, Emmy Lou Harris, and really every one of us who was involved in that adventure. What harm was done by the intellectual property law in the examples I have given you? Who was hurt? In my view, intellectual property is a fairly good way of looking at things. I am certainly open to a better idea.

  246. Alex Bowles says:

    I’ve always been impressed with Sony’s engineering. It’s their grasp of marketing that I’ve always found so dubious.

    If you stuff is truly that great, a healthy and very sustainable portion the market will embrace you happily. Try to squeeze that extra dime from the people who can’t be counted on the participate freely, and you end up queering the entire pitch.

  247. Alex Bowles says:

    @TBB

    Re: your observation that

    Not all record artists are record industry hypes.

    I first read ‘hypes’ as ‘types’. The moment of confusion was amusing.

    For what it’s worth, I find the outright opposition to copyrights depressing, as it usually suggests a failure of imagination, not to mention a willingness to throw babies and bathwater in the same place.

    I also think the efforts you noted above represent a gold standard for commercial content producers. My hat’s off to a true mensch.

  248. Armand Asante says:

    @T-Bone:

    You rightfully site many creators that were able to create within the copyright system and have benefited from it.
    This does not tell us how many other creators couldn’t even reach the entry-point of the copyright system – and as such we were all deprived of their creative work.

    I don’t like playing what if‘s – but just because the copyright system allowed Bono to flourish (and become ginormous) within it – is not a case for keeping copyright laws. It tells us nothing of the creations we never had – and therefore will never miss.

    Your story of a lucky break James Carter got, because someone hired a detective – is more an exception than a rule to how intellectual property affects most artists. If anything, it speaks to the arbitrariness of copyright.

    And while copyright might have been a good (or easy) way of looking at things in a past technological era – it does not follow that it should remain so in this new information age.

    Simply dismissing the notion as anarchy (and wishful ideology) is doing this discussion a great disservice.
    In a past age, the suggestion of abolishing copyright, might have lead to anarchy.
    However, in today’s technological climate no anarchy would ensue. We have the technological and social means to keep track of all creations and their creators.
    We have a means of self-regulating. We no longer need to rely on a lopsided top-down solution of regulating creativity and ideas.

    I understand from your writing that you have worked within the copyright system. So to you it is natural and “a fairly good way of looking at things”. However to most of us artists – it is not. To most of us it is an impediment.

    For the first time in human history we have the technology to allow creativity to be free of commercial concerns.

    The copyright system you are trying to save (and asking us for advise on how to do this) will still keep creativity subservient to commercial benefits.

    I can see why you would want to save this system – you’ve worked in it and to you it appears useful. Fair enough.
    The capitalist mindset was the best ideological alternative of the 20th century. The invisible hand was allowed to do its magic even in the realm of creation.

    But as Lessig said called it the other day – copyright is a “totally failed war”.
    Any remedy you seek is to this dying system is a stopgap measure. At most it will perpetuate the idea of intellectual property for the length of this interregnum.

    As long as copyright exists the new cannot yet be born.

  249. T Bone Burnett says:

    Armand- I don’t want to save the system. I have found the system to be onerous, for the most part. You have not understood one thing I have written.

    By the way, I think everyone here is open to intelligent discussion. To vehemently assert a thing does not make it true, right, or intelligent. No one here is talking about legislating ideas, other than you. You admit in your last post that you are willing to claim as your own something that someone else originated. That is bad manners at the very least. The story about someone buying a piece of land out from under his friend, was not a metaphor for a movie- now matter how strongly you assert it was. All of the examples I wrote were about an ethical blindness, a blindness you seem to have. Perhaps when do have an original idea, you will feel differently. In the meantime, when you leave a house, your host should count his spoons.

    There was, of course, lasting work done in other cultures without copyright law. But this is this culture, a culture in which if you are not careful, people will steal your identity. This is not a gift culture. If artists have to give their work away, will everyone else?

    You are offering no enlightenment whatsoever.
    Nor are you responding to what I have written. You attempt a one way conversation. Please leave it out.

    And don’t claim to speak for most artists. You don’t know what I’m talking about, and you don’t know what you’re talking about.

  250. T Bone Burnett says:

    Alex- I know what you mean about the outright opposition to copy rights, but in the end, I don’t think it is of great import. Art does not depend on distribution. Human beings can work around any system. What many of those who oppose copy rights don’t acknowledge is the democratizing effect that law had on the arts. The only see it the other way around. I understand the frustrations caused by a capitalist system, but in expressing those frustrations, one runs the risk of sounding bitter about his lack of access to capital.

    Are you in Los Angeles? Would you be available to get together next month? Tap could arrange it. I would like to talk about a smart way forward, with or without copy rights.

    Copies are, after all, by definition, copies.

  251. Rick Turner says:

    Bump this over a notch and see how it plays…

    Let’s say you’re a visual artist, a good one, a painter… Someone buys one of your paintings for, let’s say $500.00. Then they decide to start selling copies of it by the hundreds or thousands and very quickly make back their initial $500.00 on the artwork and you find out and want a piece of the action. The party making dough says “tough shit”, I bought it, I own it, and I can sell it or give it away or whatever. Should the artist have the right to control copies of his or her work?

    Of course it’s a bit different with music or “films” because the copying medium has gotten so cheap and universal. We don’t all have lithography presses or the super high quality ink jet printers used for things like giclee prints. But ownership of the IP is the same…

  252. Tom Wilmot says:

    Rick:

    In regards to the reproduction of “one off” artwork that that has been purchased from the originator, there’s a real Gordian knot of laws all over the world, which is exemplary of the problems one can encounter without a logical standard to copyright or IP protection.

    I am a work-for-hire visual artist. What I do is designed for reproduction, but I retain ownership of the original work. Kind of the reverse situation in that I sell off the rights but keep the original. I could also limit the rights of reproduction/distribution to a given span of time, or a given market – but very few clients would agree to such a limited use agreement, although I do have peers who’ve successfully negotiated that sort of agreement.

    Mr. Asante and Evan seem to be operating on some belief that people shouldn’t negotiate fees and/or payment structures for their work – or that there is only one ethical way for people to get paid. Copyright and royalty payments are nothing more than a way to get paid for work done.

    I’m not sure if it’s the draconian measures that the RIAA have gone to in the past to punish downloaders or rippers, the invasive and badly designed VISTA system or the issue of recurring revenue that’s poisoned the outlook of some folks towards copyright, trademark and patent protections, but I can’t see how “the commons” is any sort of a solution to anything – especially if it’s a “you must release your work the way I want you to release it” approach.

    Currently, if you do NOT want to copyright, trademark or patent your work – you are completely free to do so. You have choice. Removal of IP protection is the removal of choice – nothing more and nothing less. I have yet to hear a good argument on HOW the removal of IP protection would benefit society other than allowing those who CAN’T derive profit from those who CAN.

    I know that sounds harsh, but seriously – if I have an idea for something that would require utilization of an idea or invention that already exists and is covered under a patent, I can negotiate a license fee for use. This goes into the cost of production. It doesn’t stifle my ability to pursue my idea – granted, you could possibly make the argument “what if they don’t WANT to grant you a license fee?” in which case, it’s back to the drawing board and figure out a different way to achieve the same goal. This is where the issue of CAN and CANNOT comes into play. People run into roadblocks in creating and innovating things all the time. Success comes from surmounting the roadblock.

    The same is true of the discussion regarding a “better” system of digital dispersal going on in here. You’ve seen some of the possible roadblocks that have been thrown up in the discussion, and yet rather than going “oh well, we’re screwed”, you continue looking for the solution. That’s usually the best road to success.

    It’s not unlike my continuing efforts to get folks to agree that ethical standards aren’t a bad thing to have – but I’m betting YOUR distribution model sees fruition long before my societal model does.

  253. len says:

    “other creators couldn’t even reach the entry-point of the copyright system”

    It’s a fee and filing a cassette tape, sheet music: it’s a registration of a fixed form. Anyone can do it who will.

    a) Improvement: make copyright applications easier and cheaper, say free. Copyright everything.

    OTOH, for any publishers here: do you prefer songs submitted to you be copyright so you have to re-register? If cheaper, the admin doesn’t have to refile saving you a fee and the audit trail is cleaner. It’s shuts down some litigation faster. Win win for the publisher and the artist.

    “Try to squeeze that extra dime from the people who can’t be counted on the participate freely, and you end up queering the entire pitch.”

    True. It is a conflict with a rule in Big DealMaking: never leave money on the table.
    Greed absolutely, but defensive. Take all the money and you have all their attention. Note the power motivation.

    This is what people are objecting too more than paying the two cents for four cents, etc. It creates a culture of greed and power and then asks some artists to deal. It was a world that worked incredibly well when all means of distribution of scalar value were controlled by small groups. That part is done.

    RIAA and Sony and yadda certainly did screw-up but again, screw-up by a policy. When Unisys defended the LZ compression patent, they bought themselves ten years of recruiting from the second and third string because the best refused to work for them.

    Artists and IP-owners must come to understand the web as a negotiation before they try to control the web as a business. As a technology, it audits the rules you give it.

    At the point though, I look around at iTunes and its kind, and I think, ok that is working. Flow is happening.

    Then I look at the means and rules by which artists engage their industry and each other and think, Wow, that could work a whole lot better with some common portals for common jobs.

  254. len says:

    ” I think that earning royalties for work performed one time isn’t work.”

    That is an audio recording copyright. If it is used as an ROA, it can be registered for the song and arrangement. Registering the song is a separate application.

    Should some copyright derivatives be diluted?

    IOW, the web broadcasts copies. Chinese handcuffs.

    The way out of the Chinese handcuffs is to push. Quit using the number of copies as the value for pay. Use only the frequency of broadcast and divide the fees collected. Collection means vary. What means?

    The ISP. You’re right, Jon.

    That affects manufacturing. I don’t know how much. If anyone can copy the artifacts covered by copyright (includes software), then manufacturing goes local as fast as it can. It becomes a quality/price race between the start-ups and the established plants.

  255. Rick Turner says:

    Tom and Len, we’re seeing agreement here…and Tom, I’ve done 99.9% of my writing as work for hire or I’ve just given it away. I’m also under contract to write a book, and that will be a royalty arrangement. I’ll bet that I make less on that than I do on work for hire, but there are other benefits that will accrue to me from that, and I can use a lot of my previously written articles as a basis for the book. Once again, this is a matter of choice and nobody has shoved anything down my throat (or up the other way!). And yet I still love and support the idea that a Bob Dylan can get rich in his sleep on royalties for his work. No problem. I’ve gotten my money’s worth from him and others, including our own T-Bone here. I’ll never begrudge a good writer, tunesmith, or artist their due on the reproduction 0f his or her work.

  256. len says:

    That’s very well-written, Alex.

    “nobody knows what’s coming next”

    Some claim that is what’s happening next. :-)

    Knowledge is a dynamic value. I think some know enough to move on with it. They do it every day.

    The copies have become worthless. Functions that derive power of value from them stop having value.

    The trading value of the copyright depends on the media. We talk about audio as if it were first hit, but it wasn’t. Images and text were. The news and book publishers took the first beating.

    Audio was next and now movies. One course of argument goes to motives such as higher value media. Who is to say but the buyer?

    No, it followed the complexity of the fixed form.

    Text can be easily searched on the web. IP-theft there is actually fairly easy to catch because any means used to scramble it changes it from text and any means to change it back to text makes it instantly re-indexable. Steal as much as you like, but get caught fast.

    Images took the beating next. The artists and technologists responded with watermarks, but the response on copy is pretty much the same as for text: a cease and desist.

    Audio: high value, higher cost to copy and distribute. No problem. Everyone likes music. Goes like a grassfire. Problem? As a higher value content type, it has a bigger budget to chase and prosecute. But, it also has a business model that is the marriage of the New York music printing and song factories to radio where distribution grew slowly, then very fast but media stayed low in quality and the choice of time to sample was not controlled by the user. It’s media of distribution was almost impossible to duplicate by the laity.

    Movies: the same as audio but far more complex to make and far more expensive.

    Software: the only adaptive model historically. The copy problems were felt there the first time a plug was pulled from the ENIAC or any of its near neighbors in time. Dead machine? Almost complete loss of work. The urge to document became survival. The urge to protect copies did not happen for most of the first 50 years of commercial computing until the age of the home computer.

    The culture of defense follows the money curve. The culture of change follows the technology inevitabilities.

    Prediction of what comes next depends on which culture you are making the prediction for. If you are asking what happens to the money culture, I can’t say precisely except that those who used old means to get it lose it and those that use new means keep it as long as the means don’t evolve.

    Technology is art too. Always evolving.

    As to the business models, the topic should become opportunities based on technology and the change in social networking that opens the potential for far richer and more transparent negotiations.

    Then it’s all good.

  257. Alex Bowles says:

    @TBB – Thank you for the invitation.

    Text strings are great, but when you’re doing speculative architecture, and trying to imagine how entirely new structures will accommodate and direct forces of various kinds, the ability to draw pictures is key – big pictures, on large whiteboards. Erasers are key. In short, I love your idea.

    I’m dealing with finicky clients at the moment (no surprise) so February is still TBD. That said, this should remain penciled in. Postulating an elegant solution to an issue as fraught as copyright involves the kind of thinking that may be also useful with other challenges posed by an interregnum.

  258. Armand Asante says:

    @TBone

    Very well. I’ll seriously entertain the notion that I misunderstood you.

    Please explain to me then, your land and movie examples – their close proximity in your post led me to believe you were equating the two cases in some way.
    While morally both can be argued to be similar – legally they are most definitely not.

    And this conversation was about law – specifically copyright law.
    Since I don’t believe one can (or should) legislate etiquette or ethics, I will assume you were not comparing those two scenarios ethically.

    How did I misinterpret those examples then?
    Within the context of this discussion they could only be interpreted in a legal sense.

    Onwards,
    Let us assume I am unethical, as you’ve suggested, and my friends have to count their spoons (and will never tell me of land they wish to buy…).
    How is copyright the ideal system to deal with such as me?
    We have a world-wide-web today – and it’s proven very good at publicly ousting those who game the system.
    It’s also been creating inter-linked communities around common interests – like this blog.
    So if I am untrustworthy, we already have a system that can tag me as such – to my own community and also to the world at large.

    This does not need stay a one-way conversation. It can easily become a poly-way conversation beginning with this post and your next one.
    There is really no need to call me a spoon-thief, an anarchist, idealist or any other such nonsense. I do not enter this conversation with disdain, nor wish to receive it.
    I’d like to keep it with the issues when possible.

    I do believe in my ideas (weird as they might seem to you) and would like to hear actual counter-points to why these ideas are, in fact, bad, and for whom.

    Thank you

    ps.
    If you’re still under the impression I claim to have originated this idea (or pass it off as my own) – let me assure you that is not the case.
    I am simply advancing this idea onwards. I claim no propriety over it (nor do I believe in such a thing, anyway).
    And seeing as how I’m the only one advancing it here (“one sided conversation” and such) I’ve shorthanded it as “my idea”.
    Please don’t read anything else into it – it’s simply not there.

  259. T Bone Burnett says:

    Okay, Armand. I would like to see some of your stuff. Can you post it here? Do you have a web site, or something?

  260. Espenia Hallowe says:

    Lots of good ideas, not much structure or linearity. I think we need a framework to progress. Maybe a series of tough questions to answer.

    – If we could disregard externalities (reality?) what would the ideal system look like?
    – Which works deserve on-going, government protected revenue? Any that definitely dont?
    – Can we devise a system that piggy backs on other trends (connectivity? localisation?) in order to support and strengthen our system? Eg; design our system based upon a number of near-definite macro trends that will only make it easier and more succesful?
    – Can we leverage the power of a connected community?

    I will think of more questions after a coffee.

  261. Armand Asante says:

    I do have a website.
    And no – I don’t want to post it here.
    I write under a pseudonym and would like to keep my commenting persona free and unassociated with my own name and work – and from potential employers.

    If you would like – you can post your email here and I’ll send the links to you.

    Or better yet – if you’d like to keep your anonymity too – I can send the links to Jon and you can contact him for verification.

  262. T Bone Burnett says:

    I am not writing under a pseudonym. Please send the links to Jon. That’s a great idea.

  263. len says:

    Note interview with UMG exec at CNet today:

    http://news.cnet.com/8301-1023_3-10140244-93.html?tag=newsLeadStoriesArea.1

    This quote jumps out: “how do we shift from a revenue per unit model to a revenue per user model where the metrics for success and the metrics for how we define and grow our business are driven by what type of revenue we’re getting from every user who accesses the network, every user who has a music-capable handset”

    Copyright isn’t dead. The points system based on unit sales is dieing. The publishers have to rethink their models.

    The artists have a different problem but it seems to be the same problem they’ve always had: how to audit, how to contract, how to negotiate, how to collaborate, how to register. Again, the distribution system appears to be taking care of itself.

    What scares me a little here is how many times the artist is used as the defense for DRM-schemes, but they are not the beneficiary. It’s hard to tell how they will benefit at all unless as the means change, the contracts do as well.

  264. T Bone Burnett says:

    I would be down with doing away with copy rights if only because the notion that music is something that people consume is so… unmusical. I hate it that music is thrown in there with soap and cigarettes and potato chips and cars and sports memorabilia and all the rest of it. I would hope that people would consume music in the deeper sense of the word- that it would give them sustenance- but in the meantime, it is fine with me if people simply listen to it.

  265. Armand Asante says:

    Done.
    Can we get to the issues now?

  266. len says:

    The question would then be what replaces copyright as an assertion of ownership sufficient to support negotiation and contracting. Unit sales pricing is weakening. Mechanicals get harder because the forms in which a copy or a sample can be embedded are increasing. We tend to think in terms of movies and commercials, but what about games and virtual worlds, or the subgenre of virtual reality albums where the music is more prominent similar to a musical play.

    Theodore Nelson, the man who coined the term hypertext, used a two-way linking system. Registration systems fill the same role. Again, not trying to find and punish pirates, but increasing the effective means of cooperation, collaboration, negotiation and point of sale collections are the right way to go about increasing the opportunities to collect different revenue streams.

    BTW, T, the idea of the virtual reality album extends the idea of the frame of a work. While few musicians are polymaths capable of creating these on their own, more will be capable and where collaborations occur, even more than that. One way to offset the effects of piracy is to increase the complexity of the product in the sense that it is easy to steal a song, but much harder to steal a musical.

    From the purely artistic challenge perspective, the media types that are falling in costs (real-time 3D graphics) merging with other media (sound, images, texts) that are also falling costs and opportunities to collect revenues is the most exciting prospect. It’s a new medium and those don’t come along very often.

    I built two of these: IrishSpace in the 1995-96 with a team, and The River of Life in 2006-2007. ROL is the most nearly an example because IrishSpace is a bit more like a serial piece (think album) and ROL is much more a frame with music built into it.

  267. len says:

    As I pointed out in the Harvard forums, the two scarcities are ideas and talent.

    Kelly reiterates a lot of what we said here, but once again, his notions still rest on harnessing registration and a Record of Authority (thus, authenticity). It says what we know: copies, or per unit pricing, is defunct. So then it moves to the other qualities such as authenticity, ease, derivatives, re-packaging, and so on. In all of these, ease is a major component, and while at it, improve the life of the creators by getting rid of the registration roadblocks (eg, uploading an mp3 and registering with authenticatible idenity over the web should be sufficient).

    True fans are essentially an open guitar case waiting for spare change. It doesn’t help when you have to be in the studio. IOW, 1000 true fans at 100 a piece a year would be fine if they would keep paying in even during the dry periods, and btw, if you work out what your employer is paying for that isn’t debiting your account, you’ll find you actually cost almost twice that. Then there is the problem that if it were easy and reliable, everyone would do it who can. I’d say that would open up the size of supply by at least a factor of ten if not more (for every gig I play, at least nine people tell me they are “IPLAYTOO”s.

    It’s another fine example of advice given to us by people who don’t actually do it.

  268. len says:

    Notice that Kelly is saying some things that may or may not make sense as I mentioned earlier. He is treating all digital media covered by copyright the same and they aren’t.

    How much sense does it make to release the beta version of a song? In fact, I often do that, I release the alpha version. That’s considered suicide in the musicBiz because of the way songs are reserved by recording artists for possible recording. It’s considered first publication and depending on who you are negotiating with, that means I’ve given away a right they will pay for if they want it, and right of first recording, and so on. BUT if people were actually paying for my songs, I’d release every cut on every track everytime I turn on the machine.

    Some businesses are made possible by such sampling, configurations and tweaks.

    IOW, all copyright media are not the same in form, function and fit. As T-Bone points out, treating them all as one form of consumable doesn’t really make sense.

    Kelly says we do the magic by “by purchasing more per person, by spending directly so the creator keeps more per sale, and by enabling new models of support.”

    well …. d’oh.

    In a system where the only scarcities are talent and ideas, the profits attainable from scarcity don’t come from being open but from being extraordinarily guarded, controlling and acquisitive. Talent has to be contracted before the dollar value goes up (as is done when we recruit programmers out of high school or college, and athletes go pro from the same age), and ideas cannot be freely shared or developed in open communities, thus the IP consortia that the software community has created to protect itself and continue to profit in the face of BigCos that steal the Next Great Thing as soon as it gets bundled with the operating system.

    If you put it on the web and it isn’t copied, you aren’t doing something right.

  269. Anders says:

    @len

    Some thoughts: Something that you possibly could benefit from when putting your alpha-versions of songs on the web – 1) Feedback – if you get qualified feedback you can use to improve the songs. 2) Whetting the appetite, so that people may be motivated to preorder the final versions. 3) Keeping your 1000 fans interested.

    I agree that all copyright media are not the same in form, function and fit. And analyzing them separately makes sense.

    I am not sure that talent and ideas are scarce. What I think is scarce is time to develop ideas, and money to work with ideas that require physical items.

    And I think that both Wikipedia and large and small open source projects show that ideas can very successfully be freely shared and developed in open communities. And these successful communities have low expenses for physical items, but they do seem to be limited by the amount of time available to the often very talented participants.

  270. len says:

    A song is not software. Feedback on songs (except in the narrow domain of mixing) is a little like telling a woman her baby is ugly: she can’t return it or polish it up. The feedback I get is to leave it in the acoustic guitar/voice form and not to produce it because of the current zeitgeist craving for authenticity (Dylan recorded in mono. He didn’t NEED The Band, man!). Ok, them that likes that gets that, but producing it is part of the fun and the framing. So in the sense that I can release multiple versions of the same songs, yes. In the sense that someone wants me to get rid of verse three and insert their own verse there, if I wanted that, I would go to Nashville.

    Ideas and talent ARE scarce. The web made them distributable but there are more rebranded items offered as original then there are original items offered as brands. This is one reason IP law and copyrights came into existence: the need to assert originality not simply the need to collect fees for it.

    Then the question is, is the idea vital, in the sense of relevance to the frame of the age in which it is released. Everyone could sound like the Beatles after the Beatles and in fact, some such as the Everly Brothers did before the Beatles but as pointed out by others, it took a massive machine to make the Beatles the Big Thing of 1963-64. Welcome to industrial rock. It made both JPRG and Britney possible, but it is based on branding and brands are protected like the cure for cancer, not that it took more than a week to copy Britney, but then, authenticity, The Real Britney becomes the marketing idea and people buy it until Hanna From Montana becomes the new flavor of the week.

    For my money, that ain’t art, but if I had enough money, I could change that.

    So it will come back to ideas and talent, and yes, time. As I said, love is the only authentic resource I know of that multiplies by division.

  271. Tom Wilmot says:

    len:

    Feedback convinced me that “Hello Douchebag!” is a bad chorus for a ballad.

    Also, the spoons are a highly overrated instrument.

  272. T Bone Burnett says:

    Okay, Armand.  Got the stuff.  I am considering the one of the girl sitting in blood for a poster for a film I am producing and for the cover for the soundtrack album.  Not having to find an artist for these uses saves me a lot of trouble and, especially, money.  The no copyright thing is great from that perspective.   I will preserve your anonymity.

  273. len says:

    Yes Tom, but did you change the song or write another one?

    I guess that’s why I could never go to Big Hat Burg and become a cubicle collaborator at RCA. Songs can be crafted but I’d rather wait until I have an idea that makes me need to work on it. So I’m an amateur in every sense of the word. Because I score midi down for fun, I do keep a bag full of things to develop when asked. My current project is music for a children’s play as soon as I can get the MOTU/NewMachine to work reliably with the Old Software. I spent hours yesterday between church gigs trying to figure out what all the meters were going but I heard no sound, only to discover last night that the software ships with channel MUTEs on by default. One lousy yellow button on a screen…..

    Technology is crap until it is well smelled.

    Feedback has to be meaningful to the hearer or it’s just irritation. Count the cash in the till at the end of the night and divide over the number of seats in the room. That’s a difference that makes a diference.

    Spoons: overrated yes, but cheaper than a high-hat particularly with a jug bass. The Darlings Live!i

  274. Armand Asante says:

    Haha, fair enough.

    All flippancy aside, I will insist that I have not given up any of my legal rights pertaining to any of my works.

    I’ve only suggested that copyright should be abolished altogether – not that I should give up my rights while everyone else keeps theirs (and probably appropriate mine in the process).

    In a world devoid of copyright you would be able to do as you’ve said – take that picture and use it to your advantage – but so could anyone else.

    My advantage as an artist in such a scenario would be that only I hold the full resolution image. ie. one adequate for print.
    So you would still need to pay me for its use or pay another artist to reproduce it.
    Either way artists get paid and the economy is not broken.

    Let us assume you’ve chosen the second option – pay someone else to copy my stuff.
    It would seem you have me over a barrel.
    Well, not so fast – I have the internet on my side.

    I could claim (and prove) that your image was unoriginal – and a copy of my original, made with no attribution (all purely legal in the no-copyright scenario, but let’s deal with the ethics now).
    The internet allows such news to travel fast – in artists’ communities (and to all interested parties). Artist forums I frequent are really fervent about proper attribution.

    At once I’ve called attention to my art as significant and to you as being unoriginal and unethical (no attribution).
    My net gain from your use of my image – is still a positive one.
    I get noticed publicly and my work has been propagated across many sizable artists’ forums – even those I don’t frequent.
    I might actually get paid work if someone else sees this image and wants work done in a similar vain.

    Forget the ethics (you got money, you could care less about stupid artists’ forums) – lets talk about the practical application of this scenario:
    Talent is worth more than its artifacts.
    If you want the image as-is you could take it and pay someone to trace over it for print.
    However if my image is good enough that you’d want to reproduce it – you might also want to tailor it to your own specifications.
    Maybe you want the girl holding an ice-cream cone, or have her with long hair, maybe you need a guy instead.
    I am still your best candidate for the job.
    You can take someone else, but I’m still the talent behind this image. I could probably do a better job for you.

    That my answer to that.
    But let’s be a bit more realistic:
    I am not a great artist – I am nowhere near the caliber of the Dylan’s and Bono’s and Dre’s of this world (artists of the caliber you’re used to working with), nor of the talent of the Syd Mead’s and Miyazaki’s of the milieu I try to create in, nor the luck of the James Carter’s you’ve mentioned.

    No doubt these artists benefit from the copyright system. There are however countless others (2nd- and 3rd- and 5th- tier artists) who can’t even meet the entry-level of admission into this system.
    To us copyright acts as a block to creation.

    Here’s Armand’s hypothetical scenario:
    I want to write a Batman comic – he’s a cultural icon – and I figure I have a really interesting political take on this character and that my story would be a success.
    Bob Kane no longer benefits from the copyright on Batman (did he ever even have one?) and I figure there’s a few people who’d love to see my take on Batman.
    Maybe I want to have him deal with Tel-Aviv’s criminals and I have a few creative ideas I can explore when choosing to dress up Tel-Aviv as Gotham city. Wow!
    I might not have many readers, but whatever – I can’t wait to get my hands all over this.

    To write ANY Batman story I’d have to pass some serious hurdles:
    I’d have to try real hard to get work at DC comics (not likely – I don’t live in the States, nor wish to) – probably doing other work first – proving myself.
    And maybe never getting to work on a Batman title anyway.

    Even if I did get to work on Batman, I’d have to get past editorial and commercial concerns DC might have – like they’re promoting a Batman movie this year and my story does not fit in with how he’s presented in the movie.
    Or maybe my story has too much of a niche audience – and my idea will be scrapped or watered down.

    So I could make and print my Batman story on my own. DC is off the hook – they didn’t print it.
    Batman’s fans are awestruck by the direction I’ve taken this character and his transposition into another setting have inspired other artists.
    I sell my books (which I’ve printed out of my own pocket) and people want to see more of my work.
    Everyone wins right?

    Well, the last option (despite benefiting everyone) will have DC sue my ass to kingdom come – even if it did turn out to be a really really good Batman comic that readers loved and it sold out.

    So who’s the real loser here?
    First of all – Batman. He’s being kept in a creative cage. He’s a slave to commercial concerns that have nothing to do with creativity.
    Batman does not belong to any one single artist (over the years he’s gone through many hands and many designs and many personalities and genres – comedic, dark, mystical etc.) – he is as abstract and iconic as ideas get.
    He undoubtedly is a world-wide cultural icon.
    Yet copyright does not allow anyone in our culture to treat him as such (unless you have money and your lawyer does regular business with DC’s lawyer – and my specific version of him would never be approved anyway).

    So the second loser is the public, who can only get DC’s version of Batman.

    And third – me.
    I have to jump some hurdles and create some silly Ratman character just so I can tell my story (though I’d probably get sued for that too, if my book does well…)

    So to me, the question isn’t really how to save copyright – that’s a technical issue.
    To me the question is why would I even want to…

  275. AMusingFool says:

    Finally caught up with all the comments (I hope :).

    @TBB: You mentioned, a while back, telling a friend about a movie idea, and posed the hypothetical of him making it. There’s at least one problem with that hasn’t been brought up already. Copyright wouldn’t protect you in that situation either. Ignoring that problem, though, how similar is your vision of that idea going to be to your (ex-)friends?

    To make this a bit more concrete, this (at one remove) is essentially what happened with Bug’s Life/Antz. Dreamworks found out about ABL via an employee defection. They made Antz in response. How similar are the two movies? And did Pixar sue for infringement? No, they made a better movie. But both movies made money (~$0.25B ticket sales between them).

    One thing that I’m surprised no one has mentioned is the issue of statutory copyright. That is, one of the biggest problems, currently, with the existing copyright regime is that everything fixed in form is copyrighted. This can easily make it virtually impossible to figure out who owns the copyright on a given music/film/whatever clip.

    Going back to what I mentioned earlier, is piracy truly a problem? Anecdotal evidence, such as it is, suggests not. NiN releasing their latest album under a CC license allowing free p2p distribution did not keep that from being the top-selling album on amazon’s mp3 store last year. It also made a great deal of money through a variety of “limited-edition” recordings (I believe the most expensive of which, which did sell out, was ~$1k). I haven’t looked into it, but I doubt that they have much problem selling out concerts, either. There is money to be made in musical recordings, even if you give it away in some format.

    This is the sort of thing intentioned when someone says, “find a new business model”. Value, as always, comes from scarcity. Trying to force value into something infinite is inherently futile. You don’t need econ 101 for that.

    Trying to legislate fees at the ISP level is ignoring that reality. It is also ignoring the reality that sharing things in that way is quickly becoming a way of life for the majority of people. And that’s an even longer row to hoe.

    Anyway, getting back to the issue of whether piracy is truly a problem another important datum is this: the record companies are making more money, year-over-year. That is not a sign of threat. That’s a sign of prosperity. Now, if the artists are not making more money as well, that’s a different problem, and again, one not even addressed by copyright. (I would like to point out, though, at least one way the record companies ARE trying to screw the artists. Songs sold on iTunes are reputedly, at least, licensed. Or, at least, that’s what the consumer is told. Artists are getting royalty checks based on them being sales, however (since that’s a lower rate). Now that is more what I would call piracy.)

  276. len says:

    “statutory copyright..”

    If you read the thread, it has come up.

    What you are talking about is the other side of that conversation: transparent auditability and contract support.

    It will take some businessmen willing to develop not a new business model, but a different business. So far, the heavy hitters have failed to bite because they remain comfortable in the arms of the old businesses and while that is going on, they will continue to collect their pennies on the dollar for sales. As long as the sales are big enough, that’s ok for them. Where they aren’t, we are told it doesn’t matter because we are second rate.

    And that is classicism, elitism, or simply just the hierarchy of money at play. It’s a long way to the border.

  277. T Bone Burnett says:

    AMusingFool- Right on all counts. I’d say. Where are you?

    (Artists split licenses 50/50 with the record companies. Artists generally get about 12% on sales. I would say that, from an aesthetic point of view, mp3s have little or no value. The inventor, Karlheinz Brandenburg, did not patent the technology. He just let it go. Unless handled with the most extreme care under the most rigorous conditions, mp3s sound like hell, and even then, they don’t sound that great.)

  278. T Bone Burnett says:

    AA- You don’t have a leg to stand on. You don’t even have any ground to stand on. You are out in space. You are not even out in space. You don’t exist. How can you have any legal right to something that isn’t your property, that isn’t even property?

    Not only that, but my being able to use your non-property to not have to hire an artist, is not very great for the other artists in the world- those for whom you pretend to speak. Your idea is self-serving and ego-centric. It is something you were told you were supposed to know. You have not thought this through at any depth, and you do not have the courage of your convictions. For those reasons, you don’t get to communicate with me any more. I hope you will consider that your good fortune.

  279. AMusingFool says:

    @TBB: On the wrong coast, alas. I’m a half mile outside of DC. Thank goodness work is away from DC, or the thought of the traffic tomorrow would scare the bejeezus out of me. :)

  280. AMusingFool says:

    @len: re: statutory copyright

    I saw it mentioned, but all I saw was mention of it existing, not discussing the problems it causes. (But maybe I missed something?)

  281. len says:

    How does a statutory copyright cause problems? It is the least interference possible by the ostensible big government people like to talk about. It means that copyright registration is simply registration. That was discussed. What are the problems?

    MP3 technology is patented. See http://www.mp3licensing.com/ for details.

    The Motion Pictures group is rather famous in technology circles for capturing IP and enforcing patents rather than the approach taken by other consortia that own IP-unencumbered formats where the IP is made available for unencumbered use though the patents are owned.

    @TBB: Rates have gone up. It’s potentially a 50/50 split. That’s negotiable. As in all things bartered by contract, value is a perception of the contractors.

  282. T Bone Burnett says:

    That’s right, Len. It is all negotiable.

  283. AMusingFool says:

    @len: The problem with statutory copyright is that, if someone does not register something, it is still copyrighted, and it might well be impossible to track down who the rightholder even is, let alone try to figure out some way to license it. This is especially a problem for documentary film-makers (or, at least, that’s the context under which I heard about the issue).

    One could also envision this as an issue with someone hearing a song online (unattributed), and wanting to do a cover (though maybe that’s entirely a theoretical worry; I don’t know).

    Another place where it definitely will be an issue (though perhaps it isn’t, yet) is in figuring out whether something is still protected by copyright, or if it has slipped into the public domain. Well, I suppose if copyright keeps getting its infinite extensions, then maybe it won’t happen there, either. But hopefully, the idea that copyright actually has limits has gotten some traction by now.

  284. Alex Bowles says:

    @Anders:

    I am not sure that talent and ideas are scarce. What I think is scarce is time to develop ideas, and money to work with ideas that require physical items.

    And there’s the rub. This is exactly the thing that must, in one way or another, be paid for. Exactly how is secondary. Also, negotiable. But whatever the arrangement, the viability of this exchange is the test.

    Regarding AA’s point about the tiers, and who benefits from copyright; my feeling is this is exactly as it should be. The vast majority of creative cultural output by humans neither needs, nor benefits from copyright. And the over-reaching nature of the law (which covers commercial and non-commercial enterprises alike) ends up having broad, detrimental effects – about which, Lessig has spoken at length.

    So the real question has to do with folks good enough, inspired enough, and dedicated enough to not only make real money, but to do so because of their full time commitment.

    This is where we actually need a fair and open commercial exchange, for the benefit of artist and society alike. And though this exchange should conform to the natural contours of the landscape (i.e. no absolute prohibitions against copying in a networked environment entirely based on copying) it will also need to contain some element of abstraction – a legal convention that codifies the innate sense of what’s good and fair.

    And since legal enforcement will be required, care must be taken that the burdens aren’t onerous, and that collection can take place with maximum efficiency.

    For a perfect example of what not to do, consider what happens at many Universities, where the IT departments end up paying substantial costs to police networks. In theory, this increases the value of a copyright owners property, by making it less available. However, the proposition is pure downside for the University, which can do no better for itself than simply not getting sued.

    In other words, if we’re going to create protective powers, we also need limits to that power, so that people operating at the commercial level – and benefiting from whatever structures provide for their remuneration – can’t then use the legal status that comes with exchange at the this level as a basis for extracting value from exchanges that are natural to the far less rarefied levels (e.g. drunken YouTube karkaoke.)

    This is doubly true when other people would be forced to pay for the extraction mechanism, while being entirely cut out of any proceeds.

    As a practical matter, I suspect this means that the concept of ‘fair use’ should be extended to situations, and not just certain derivations, like academic work, or social commentary.

    I still don’t know what an actual ‘solution’ would look like, but these seem like important conditions.

  285. Alex Bowles says:

    And since it seems impossible to bring up this topic without citing Lessig, I may as well add this, from his recent appearance on Colbert.

    The salient point is that remixing seems unstoppable. The first track captures this spirit remarkably. It’s also the best of the lot.

  286. Rachel says:

    Len, please pardon me while I adjust my pedant hat.

    You said:

    MP3 technology is patented. See http://www.mp3licensing.com/ for details.

    Some technology that works to encode/decode audio files is patented. The link you provided, to a Thomson webpage, is actually a product that encodes the audio into mp3 (and other) formats. Sadly, you’ve fallen for Thomson’s attempt to appropriate the brand through naming their product in a way that sounds like it’s the only one available. The Thomson product is but one of several hundred on the market.

    What Thompson have patented is the codec used to achieve certain audio characteristics within the file. They’ve released a product to make it easy for broadcasters to use the format.

    The actual mp3 format itself has not been patented – indeed the process by which it was developed, in working parties with participants from multiple multinationals, would make the patent process impossible, because patent law precludes publication before the patent is issued.

    The Wikipedia page on mp3 geeks out a little, but it contains a nice summary: Besides the bit rate of an encoded piece of audio, the quality of MP3 files also depends on the quality of the encoder itself, and the difficulty of the signal being encoded. As the MP3 standard allows quite a bit of freedom with encoding algorithms, different encoders may feature quite different quality, even with identical bit rates.

    That’s a side issue from the body of this interesting thread, but I didn’t want to let it go uncorrected.

  287. Armand Asante says:

    After all that?
    This? This is what I get?
    More personal insults?
    Out in space? don’t exist? self-serving? I was told I what I was supposed to follow? I don’t have the courage of my convictions?

    Two paragraphs of insults?
    That’s your idea of a rebuttal?
    That’s your idea of a debate?
    Is that how you explain to me what you think is wrong?

    I do consider it my good fortune to not communicate with your fossilized ass anymore (not that we ever did communicate in the first place).
    Good Luck saving your precioussss.

  288. Tom Wilmot says:

    Mr. Asante:

    Unfortunately, your Batman scenario is basically a fan fiction scenario run amok. Now, I’m pretty much a naïf in regards to comic books, but I would assume that whomever created Batman worked out some sort of deal with a syndicate or publisher in order to get distribution – obviously, due to the longevity of Batman, this deal included surrendering ownership of “Batman” as IP.

    His choice.

    I’m sure that there are Star Trek fans who band together and rant about the direction the Star Trek franchise has gone in over the years too.

    What I see here is an absolute dearth of creativity. Taking Batman in a new direction is little to no challenge – it’s as I said earlier, taking advantage of the work and investment someone (or some group) has made over the years to build up the franchise. By “creating” a new Batman scenario, you are risking little since you already have name recognition, a probable built in audience, etc.

    This sort of thinking is exactly why I rarely go to the movies any more. I was raised in a culture that believed ART = RISK. Why do dinosaurs like myself constantly reference the ’60s? To a large extent, it has to do with a culture (and yes, it grew out of the ’50’s Beat and Village culture [hats off to John Coltrane, Japser Johns, Jack Kerouac, Jules Pfieffer, Paul Krasner, etc]) where the “accepted” was questioned, where the litmus test was whether you could alter an audience’s perception of what the world consisted of.

    To my mind, you’ve made an excellent argument as to how copyright ADVANCES creativity.

    Let’s say I’ve got a starling new take on Batman too. However, I don’t want to hassle with all the legalities of trying to get permission to use the Batman character and I don’t want to wind up getting sued either. But the story’s good. I can’t shake the believe that I’ve really got a character arc people will sit up and take notice of.

    So – I take the time to construct a new character and a new world without ANY semblance of the Batman culture. And guess what? It’s good! It stands on its’ own without the necessity of relying on anyone else’s work. Voila!! Copyright has FORCED me to be truly creative.

    The cultural commons and fair use is still in play here. You’re mining the past (comics and superheros) to create something new.

    As I’ve said before, creation requires reference points of some sort or another. This is exactly WHY most folks understand the concept of a cultural common. Bob Dylan used Woody Guthrie, Leadbelly and other dudes of that ilk to build on – but he didn’t just release “Dylan Does Guthrie” albums – he used that as a starting point.

    Hunter Thompson typed “The Great Gatsby” at least four times in order to understand the rhythm and structure of Fitzgerald’s writing. Do you suppose, in a world devoid of copyright, that any publisher would be interested in “The Great Gatsby – as Typed By Hunter S. Thompson”?

    Mr. Asante – your options are still wide open in this old world. You could apply your creative juices to something wholly original, which to my mind is probably of better benefit to both you and your potential audience than time spent feeling bad that you are blocked from freely monkeying around with old and passé ideas.

    The world is filled with derivatives. It really doesn’t need more. Fresh, new, innovative – there’s always a place for that, if you’re willing to take the risk.

  289. len says:

    Thanks for the correction, Rachel. I’m aware of the Thompson issues but in the end, the patents on the codecs are almost as effective as a straightforward patent on the mp3 process; thus the lawsuits with Microsoft and Alcatel-Lucent.

    The point is to elaborate one of the means that have evolved related to IP: IP-consortia, in this case, the MPEG (Moving Picture Experts Group) and the participation agreements members sign up for and that govern works created in common. As a side note, policies get even more complex with these groups set out to bid projects for hire. What we shouldn’t adopt is an attitude that because it was published, it is free, or even where the original algorithms (eg, lossy compression isn’t here but is in gif, that patent just lapsed) are. The implementing technology is licensed. Copyright is just the curved tip of the iceberg of IP.

    @musing: Covers are ‘covered’ by applying for the license to the publisher which they will grant. Covers performed live are covered by the mechanical royalties collection agencies such as ASCAP/BMI. Where that gets nasty is that it includes the muzak played over the club speakers and anything the band plays over theirs between sets, so a room is paying fees regardless of having a live performer as long as some music is paid. The collectors don’t have a very good sampling system and they tend to come on heavy. As a result, small rooms sometimes lose the live entertainment to afford the muzak. Again, some adjustments here are needed but greed tends to rule and that is how those rights organizations got their lousy reputations.

    Copyright law needs reform because it is extremely messy and fuzzy. Trying to determine if a work has sufficient originality to merit copyright is fuzzy. Copyright laws vary by country even if they are signatories to Berne because it is a non-binding treaty.

    Statutory copyright is a benefit because it is the least force in terms of government pressure. You’ve taken the consumer side of the argument (that which isn’t expressly forbidden is allowed). Yes there is some effort involved when one uses sources not of one’s own making and some risks, but the public good is best served by making the consumer assume the risk in this case, someone using the works for a new work.

    I see what Lessig is on about but he is wrong. The mashup composer takes the same risks. Where the mashup author should not go is into claims that they have created a wholly original work. Even if they haven’t licensed, they should attribute. This gets into the negotiation aspects. When I created ROL, I sampled Bollywood soundtracks. Every author is attributed but the work is not for sale and no profits are derived. In fact, it isn’t distributed except insofar as it was used to test and prove the X3D technology and to demonstrate the concept of a virtual reality album. Can the owners of the copyrights contact me? Certainly. My guess is the royalties at this point are less than the postage. Should it become a big seller (won’t happen), I’d be happy to file the paperwork but for now, and I think rightly, what I did is fair use.

    What statutory and registered copyrights provide is a means of establishing the bedrock legal grounds for those negotiations. This works pretty well and ensures the value of the work is proportional to its commercial desirability.

    That producers then go out and find the owners and reward them is admirable and right. That the system enables that is precisely what it should do.

    That big labels and conglomerates chase down kids knocking out a few CDs for their friends is just dumb. Here is where some thought and legal remedy is called for: better elaboration of fair use. Unfortunately what Sonny Bono and Disney have shown is when these debates come up for question, the powers that be in the music business step in like the car companies and ensure the laws are more restrictive of consumer rights in favor of the producers AND THEIR HEIRS.

    And this gravy train affects the music itself in ways hidden to the consumer. For example, there is a saying Nashville: never write a third verse. The producer does that. IOW, if something looks like a hit, some producers make sure they get part of the songwriting royalties even if they are getting part of the publishing and being paid to produce. Chet Atkins told me straight up: come to Nashville as a songwriter because that is how you can make real money. Look at some of the hits from the days of yore and notice how many people are credited as writers for some songs.

    It also creates an incredible competition for song slots resulting in the rise of the song pluggers who work for publishers. It results in in and out circles of writers with access to the recording artists. It results in an enormous pressure to stay within the confines of the formula and to replicate whatever was the last big hit somewhat the way TV show producers imitate (Bewitched spawned I Dream of Jeanie).

    In this I am two-minded about the system that has emerged from copyright law and the collection agencies. American music in the first half of the 20th century was incredibly fertile even with the incredible restrictions on access to publication. In the second half, it almost died. There is an old B&W movie from the thirties where Jack Benny is on stage with a dozen popular songwriters and gets each one to write one line to a song, then strings them altogether into what would be a plausible hit. This is what happens in pop.

    Proving originality in pop music ought to be a 12 week lawyer orgy every time a new song is released because originality there has dropped to an all-time low and if originality is the metric, well, it ain’t.

    But there are many other forms of American and world music that are not pop. Ethnic music, for example, is an issue because how can you tell who is the originator? The blues are a big problem that way because even if we can point to a handful of pioneers, they are recording pioneers, not necessarily the originators.

    There is no conclusion here, but baby and bathwater, we don’t have a good idea that is better than copyright. We do need to reform the laws and take advantage of new means for negotiation and registration. We do have alternatives such as the Creative Commons and that is where Lessig does good work. However, on the other side, from what I know of the business of music, if copyrights go away, they’ll be back to paying artists with a sandwich, a room and a bottle of wine.

    http://en.wikipedia.org/wiki/Wikipedia:Public_domain

    Things don’t slip the way they once did. That is a problem. As Sonny said, “I got you, Babe.”

  290. T Bone Burnett says:

    Tom Wilmot- Your excellent paragraphs describe the folk process very well. They describe the history of art very well, in fact. To be influenced or to be inspired by a person, his work, or events in general is a short description of the process of creation. Here is another great book on the subject- The Act of Creation by Arthur Koestler.

    http://www.amazon.com/Act-Creation-Arkana-Arthur-Koestler/dp/0140191917

    (Back in the old school days, they used to frown upon your copying someone else’s work. It is clear there is an educational process that has to take place around this issue.)

    At any rate, you are exactly right: risk is what separates the artist from the artisan.

  291. Armand Asante says:

    Unfortunately, your Batman scenario is basically a fan fiction scenario run amok. Now, I’m pretty much a naïf in regards to comic books, but I would assume that whomever created Batman worked out some sort of deal with a syndicate or publisher in order to get distribution – obviously, due to the longevity of Batman, this deal included surrendering ownership of “Batman” as IP.

    His choice.

    “His choice” – let’s look at that.
    Let’s see what choices the copyright system co-opts us into making. And then let us discuss if those options are fair or desirable. And for whom.

    Bob Kane, like all DC and Marvel artists, are under a “work for hire” contract.
    Every single artist who wants to be recognized and be published has to sign over any and all copyright they might have just to be allowed to work at DC.
    Any character they create and insert into a Batman comic is given over to DC automatically.

    Most fledgling artists accept this choice – they want to create comics and make money doing it. So they give up their rights just to be able to create. Some choice…

    I recently made a CD cover for a local band. They’re fairly big by local standards. They get airtime on the radio, they’re well known and successful. They’re a “name”.

    They’re in their mid-thirties now and can probably pull their weight around and keep more of their rights than when they started out.

    However, when they were starting out, they were teenagers who just wanted to get radio air-time. So in order to get to where they are now they had to sign over all their rights to the record companies.

    So they might hold the rights to all the new stuff they make – but the early stuff, the stuff that made them famous, the stuff that was really alive and kicking, the stuff they’ll be remembered for, the stuff that’s actually profitable – that’s forever in somebody else’s hands.

    So they made a choice – sure.
    But how much of that choice was dictated by the lopsided power structure of the recording industry?
    How much of that lopsidedness is a direct result of copyright?

    Taking Batman in a new direction is little to no challenge – it’s as I said earlier, taking advantage of the work and investment someone (or some group) has made over the years to build up the franchise. By “creating” a new Batman scenario, you are risking little since you already have name recognition, a probable built in audience, etc.

    True.
    That is the very essence of Batman.
    He is an icon that has been built upon by different artists over the years.
    Every single artist who drew Batman was building upon something that other people did.
    That’s how art works –
    I am a master of perspective. My art has depth and volume – this too is built upon centuries of research and study by the masters – DaVinci, Rembrandt, Rafael etc.
    Without their techniques, which I’ve studied, my art would probably be no better than cave paintings.

    Everyone that does Batman today is a fan of Batman. All Batman comics and movies and TV series – are fan-fiction.
    Are they all unoriginal?
    Are all their creators escaping risk?
    To my mind, Batman already IS part of the creative commons you’ve referred to.

    Why then would I support a law that only allows DC to decide who does and who doesn’t get to add his vision to the Batman milieu?
    Who gets and who doesn’t get to draw from (and add to) that creative common?
    DC’s stake in Batman is purely commercial – they’re only wish is to not let Batman slide into the public domain. This is not a creative stake.
    That’s the same DC and Marvel who’ve jointly trademarked the word “Super Heroes” (and Marvel tm’d “Mutants” – so DC artists are left with the ever-so-uncool “meta-humans”).
    I’m supposed to trust these guys to take care of my childhood hero?
    The icon I grew up on? The icon I wish to create with and contribute to?

    And I won’t even start with copyright being applied to DNA (yes, you can copyright DNA).
    This was done so farmers couldn’t sell their grain – and have to buy new grain every year.
    The absurdity of this is that farmers who’ve not bought copyrighted-grain but have had their grain cross-pollinated with their neighbours’ copy-righted grain are being sued for copyright-infringement.
    Through no fault of their own (and for reasons beyond their control) they are barred from selling their OWN grain – even though they’ve not opted in and were careful to only use public domain grain.

    The copyright system is broken. It is beyond repair.
    The only question remaining is why would we want to save it?

    We should embrace this interregnum to do away with the old. Let something new be born from the ashes of this recession (which will hopefully see Blockbuster, Tower and their like topple in favor of p2p networks).
    There is still money to be made and creations to be experienced outside this system dragging its convoluted corpse into the 21st century.

  292. Armand Asante says:

    As for baby and bathwater –
    copyright has not been the caretaker of creativity have grown to believe in.
    It’s a commercial interest piggybacking creativity.

    I’m not saying artists should not be compensated for their hard-work and talent.
    They should – and copyright is not doing the best job of taking care of artists’ commercial concerns.
    It simply co-opts all their other concerns into commercial ones.

    There are other ways of assuring you get paid for your work that don’t need rely on IP – I’ve even presented a few here.

    All in all, IP (dunno about trademarks, but copyright and patents at least) in today’s technological climate are an impediment. They do more harm than good.

  293. len says:

    The same kinds of agreements are routinely signed by engineers when they take a job at a major corporation. They even agree not to compete against the company should they leave it and in at-will-work states, that’s tough.

    The trick is without these agreements, the means to protect IP would be worse. As much as you might not like them, and yes they need to be reformed to correspond to the reality of the technologies, I’ve seen no proposals here that better them beyond what contracts such as the Creative Commons enable. BTW, some of this isn’t copyright, but the definition of ‘publication’. You might want to dig into that a bit more.

    That band should have shopped around. The music industry is very much based on reputation. As my lawyer explained it to me, put two big sellers into the system and you can renegotiate the deal on the third album but some labels have a bad habit of replacing your band with yet another pop copy (the Hat Act syndrome) when you get to that third album. So once again, it comes down to following (butts in seats) and originality (can’t replace them or duplicate them). A producer put it to me this way:

    “We will never let the Beatles happen again.” and he meant it. Too much money took a hard left to London.

    So is it abusive? It depends on who you work with. Labels such as Rounder were founded to stop abuse like that. IOW, like minded people formed their own consortium/label and set their own rules. It can be done. My guess is and I am guessing that if you talked to T-Bone respectfully, he could tell you about how his label and his own collaborations are negotiated. He works with extremely famous people and the EPs of the business usually have to be scrupulous about their deals. But knowing his history, I will bet you my dog he has it set up to prevent abuse. It all comes down to the players eventually. He can do that precisely because he knows how the norms of publication work and those copyright laws, bizarre as they are and yes in need of reform, are the foundation of those norms.

    @TBB: BTW, mp3s do have a use. When building aggregate forms such as the virtual reality albums for the web, download size is still a big deal even with broadband. The ability to use standard lossy-compression file formats that are good enough is key to the emergent art forms in this transport system. You are accustomed to non-dynamic art forms where everything is bound at delivery. Even a play as a live presentation is mostly bound. When you work in the dynamic interactive media where load times affect presentation (can’t run the next script until the last completes or the file is loaded), then small is truly beautiful. Somewhat like the design of a 12-string guitar, there are compromises for physics. In the days of the Victrola, grooves were a lot wider and the rubber was a lot thicker. As the technology improves, I’ll be happy to see the mp3s go away. For now, they are infinitely preferred to the 11khz mono wave files I had to use in IrishSpace in the mid 90s.
    What caused us to use those? The 3D viewers couldn’t be implemented with mp3s until someone paid the licenses (eg, Microsoft won the lawsuit).

    So yes, the IP gets in the way. But I didn’t pay. I built with what I had until the better tech was licensed by those who could afford it and then, I pulled those wav files and replaced them. That is the big advantage of today’s art forms emerging from digital systems: versioning is possible and even recommended.

  294. Tom Wilmot says:

    Mr. Burnett:
    Thanks for the kind words. Thank my parents for my outlook.

    Mr. Asante:

    Let’s get some nonsense, urban myth and scare tactics out of the way first off.

    “The absurdity of this is that farmers who’ve not bought copyrighted-grain but have had their grain cross-pollinated with their neighbours’ copy-righted grain are being sued for copyright-infringement.”

    If this is, in fact a true story (I spent quite a bit of time trying to Google it and came up with nothing), then whomever filed the suit isn’t up on copyright and patent law regarding plants.

    DNA copyright under US and international law is established as: “A DNA Copyright is an established copyright on the unique DNA Profile, or DNA Pattern, of an individual organism under United States and international copyright law. The concept was developed by the DNACI upon realization of the danger of DNA theft on a large scale basis. Since the DNA Copyright is not on specific genes or DNA as a whole (which is owned by everyone), but on an individual organism’s unique DNA pattern, it should be possible for any person to establish a DNA Copyright for themselves.” – DNA Copyright Institute.

    In order to enforce this, there has to be an EXACT DNA match between the copyrighted DNA and the suspect non-licensed “copy”. Cross pollenization is specifically protected by plant patent law, at least in the U.S. – additionally, there would be variations in the DNA structure which would make existing “DNA copyright” unenforceable on the cross-pollenated plant.

    Now, let’s get clear on something. If you plant a genetically enhanced corn that is copyrighted (or more commonly patented, since this statute has been around since the days of Luther Burbank) and when you harvest that corn and retain a certain percentage of seeds for planting the following year – you HAVE NOT violated copyright or patent laws – since, plants grown from the harvested seed are the SAME plant.

    “when a plant has been asexually reproduced from the actual plant protected by the plant patent.” – U.S. plant patent statute – in other words, when you work from the genome or a cutting prohibited from the license, then you are infringing on the patent.

    Very little corn is started from genomes and none is started from a cutting. Normally, corn is grown from seed. Seed requires pollination. Pollination IS sexual reproduction, so no, DNA copyright was not put in place so that farmers cannot grow crops.

    Back to the real issue at hand, however.

    “Let’s see what choices the copyright system co-opts us into making. And then let us discuss if those options are fair or desirable. And for whom.
    Bob Kane, like all DC and Marvel artists, are under a “work for hire” contract.”

    I’m not sure exactly HOW mister Kane was co-opted here. He chose to work for DC or Marvel or whomever, as a result, he understood at the outset that he was surrendering his IP protection to the company in exchange for a paycheck.

    Robert Crumb did not like working for Hallmark Cards. He did not like working for Cavalier Magazine – as a result, he took a large risk and went off and published Snatch and Zap and a number of other titles on his own or in conjunction with other underground cartoonists. He’s (metaphorically) fat and happy and controls his own creations such as Mister Natural, Angelfood McSpade and Flakey Foont. He does not own rights to Fritz the Cat, which is exactly WHY he left Cavalier magazine.

    Take a look a Bill Waterson, creator of Calvin and Hobbes. He signed a deal with King Features for reproduction rights to Calvin and Hobbes in NEWSPAPERS only. As a result, he still OWNED the characters and when he got tired of fighting for space in the newspapers, he pulled the strip. King Features cannot hire some hack to continue Calvin and Hobbes – as a result, the cultural impact of C&H has not been allowed to be diluted by bad jokes or bad drawing.

    Copyright allows an artist to protect his or her integrity. If anything, it gives the savvy artist protection FROM being co-opted by a business relationship that could be detrimental.

    ” Most fledgling artists accept this choice – they want to create comics and make money doing it. So they give up their rights just to be able to create.”

    The key word here being “most”. I can name a raft of recording artists that have accepted a slower route to getting where they want to go rather than surrendering the publishing rights to someone else – Jeff Larson, The Pillbugs, Cloud Eleven, Blue Cartoon – to name just four. I have a friend in Seattle who has a distribution deal with a Dutch company for his electronic music. He retains publishing rights, always has. Is he a gojillionaire? Nope. At the same time, if he ever DOES hit it big, he owns his whole catalog.

    “I am a master of perspective. My art has depth and volume – this too is built upon centuries of research and study by the masters – DaVinci, Rembrandt, Rafael etc.
    Without their techniques, which I’ve studied, my art would probably be no better than cave paintings.”

    And this is where the issue of creative commons comes in to play. On the other hand, how much interest would an exact reproduction of “Man with a Golden Helmet” or “Woman With a Mink” painted by you and signed by you generate? Probably little to none.

    ” Everyone that does Batman today is a fan of Batman. All Batman comics and movies and TV series – are fan-fiction.
    Are they all unoriginal?
    Are all their creators escaping risk?
    To my mind, Batman already IS part of the creative commons you’ve referred to.”

    I honestly wouldn’t know whether the originality of a “Batman” movie or TV series or comic has a level of originality to it; not being a Batman fan myself. Let me make THIS argument however – I do know that Tim Burton directed a Batman movie – now, the question is – on what basis was he hired to direct a large budget, franchise picture on? His depth of knowledge regarding Batman or the unique vision he displayed in prior works such as “Vincent”, “Frankenweenie” (both of which mined the cultural commons as a source/starting point) and “Beetle Juice”?

    You may have embraced Batman as part of your cultural heritage, but your belief and/or dismay on what the titled owners of the franchise are doing with it gives you no moral weight in the argument whatsoever. This is right up there with the outrage readers of “The Strand” felt when Arthur Conan Doyle killed off Sherlock Holmes. It was HIS creation – to do with as he pleased.

    Your view that anyone can lay claim to anything at any time and do with it as they wish (with accreditation) seems much more draconian and restrictive to an artists’ rights than anything copyright as it exists can do.

    Let me give you an example under your viewpoint. Let’s say I’m a filmmaker and I have this very intense and graphic, horribly misogynistic rape scene. For irony and counterpoint, I want the soundtrack in the background to be “I Am Woman” for the irony and counterpoint of the thing. Currently, Helen Reddy and Guy Burton can refuse to grant me use of the song, since, more than likely, they wouldn’t share my sense of irony and counterpoint. Under your scenario, it’s up for grabs, no matter HOW they feel about the matter and I can tell them, “tough noogies – I’m giving you accreditation, that’s the only right you’re entitled too!” Oh, and I also decide that I want someone to animate Charlie Brown masturbating in the corner while this goes on – fuck you, Charles Shultz’ estate!!

    Why don’t these folks have the right to protect how their creations are used and in what context?

  295. T Bone Burnett says:

    Len- I know what you are saying, and I have nothing against mp3s. This is a very long conversation, and I don’t have time to get into here, but I would welcome the chance to sit down with you and talk about this. Any time. Your point of view is of serious interest to me.

    My interest is in the highest possible caliber. Anything else holds little interest for me, and I don’t really have the time for the theoretical. Our team does, I should say, take the same care making mp3s that we take with any other format. That is an area that has gotten completely away from record artists. No artist has any connection to the manufacture of the various formats his work is copied into. There has been a complete collapse in quality control in the chaos that used to be called the record industry.

    Barnett Newman said that time passes over the tip of the pyramid, meaning there is plenty of room to put things on the sides of the pyramid (the closer to the bottom the more room there is), but time washes those things into the sand. If, however, you put something on the very tip, it stays there-time passes over it. That, it seems to me, is the only line worth pursuing.

  296. len says:

    I agree, T. You are in a different business and on a different part of the pyramid. You produce works of the very highest caliber and you’re POV is so welcome precisely because I know it is informed by years of experience and values admired by all who work with you and beyond.

    What happens in VR work is the actual wrapper media, the graphic as vectors, is quite light. It is downloaded very fast. The wrapped media such as images and audio are much fatter and of those, audio and video are the ‘pigs’ so to speak. Without dramatic compression, we have to tell the script that loads them to watch and wait for a value that says ‘done’ before we enable the scene navigation. Otherwise, the piece just doesn’t work. As as result for some of the vision, we’ve had to wait for tech to catch up, mostly broadband for the network. Note that when the piece is locally resident (say on a CD-ROM), pushing 44.1 to the speakers isn’t a big delay, and that is one of the arguments for fixed media. We’ve been going round this kind of thing for almost two decades now and only now is the vision becoming feasible.

    Why work in that media? Fun and as usual with toys, more fun than usual. A 3D audio engine let’s us use proximity to trigger sound and give it a surround effect even in headphones. It let’s us play with a world that dynamically mixes the presentation. IOW, it is a real-time 3D sequencer driven by events and we have barely scratched what we can do with it. Right now the 3D medium emphasizes the game aspects and the sound is subordinate. I’ve been working on turning that around but the scenecraft is very seductive. It’s too easy to get into being the worldgod so to speak.

    All I could do so far was cut a path. It will take a generation of newbies who have the tools and talent to turn it into a respectable art form, but there is a certain thrill to being one of the first on the overlook on the beach.

    As marketing goes, it has the advantage that just as when you provide music to Sam Shephard, it is a lot tougher to steal that production as a whole, the same sort of effect happens with the online 3D world art. It is easy to rip the pieces but ripping the whole thing takes more skill and is easy to spot. That said, we use open source and view source languages precisely because I WANT THEM TO STEAL IT, that is, the code, the tricks. I write a blog documenting how it was done in hopes kids will pick it up and take it to the next step. Somebody will.

    And then, after so many years of working on these ideas, I will have hoed to the end of the row unafraid that I hid the talents the Master will be displeased.

    And I will have had a lot of fun.

    Anyway, if you are back in the South sometime, give me a ring. I’d be happy to drive and meet you and show some of this to you, or just point you to the files. There are new opportunities happening in these new media, new kinds of artists, and it excites me that we won’t be able to do it all in our lifetimes. Rock on.

  297. Alex Bowles says:

    Here’s a minor addendum to this string, and one that goes back to the cause, in terms of what Apple’s doing with DRM in iTunes (from cnet uk).

    Although iTunes Plus files feature no copy protection, files downloaded still contain the email address you have registered with iTunes. So although files can physically be shared with, and played by, friends and family, any of your purchases that end up on file-sharing networks, for example, can be traced back to you.

    If you’re interested in an easy way to check your own files, find an iTunes Plus file on your computer. Then choose to open it with a text editor (Windows Notepad works fine). It’ll take a while to open and will appear to be full of nonsense text, but if you choose the ‘Find’ option and type in the email address you have registered with the iTunes Store, you’ll find that your DRM-free music is not personal information-free.

    So if every file is, strictly speaking, unique, it really changes the idea of what a copy is, or can be.

    No point being made here – just more food for thought.

  298. Armand Asante says:

    Fist off, I’ll admit to only rudimentary knowledge on the DNA front.
    (I started out with the words “I won’t even get into…” but the keyboard flew away from under me – and here I am – with my foot in my mouth).
    I don’t think I’ve pulled that example wholecloth out of my ass – I’ll try to track that little morsel of information down – but until that happens I’ll concede this point wholly.
    As I cannot argue it on a factual basis.
    Sorry – my bad.

    Onwards:

    On the Charles Shultz estate issue – I really couldn’t care less about his estate.
    Copyright was meant to afford the creator a limited monopoly on his creations so as to give him incentive to create more – for the benefit of us all.
    His children – or whomever holds the estate – are not Charles Shultz and their opinions are of no interest to me.
    Well, no more than anybody else’s opinions, anyway.
    “fuck you, Charles Shultz’ estate!!” indeed.

    On the “I Am Woman” example it gets a little tricky, but I’m willing to explore that too:
    As you’ve said, Burton and Reddy could do nothing more than voice their disapproval of your use of their song.
    There is a price to be paid when power shifts from one set of hands to the commons.
    One may debate whether such a shift in power is appropriate and whether simply having a platform to voice their disapproval is enough to offset this price.

    Personally, I’m not sure that’s a huge price to pay. We have a huge platform for expression today. Any wikipedia entry on your movie, that song or its creators would let anyone know of Reddy and Burton’s disapproval and ensuing controversy.
    But I will admit that this a point that should be addressed and debated.

    This point is not however strong enough in-and-of-itself to keep the copyright system going.
    We need to see if there’s more to gain than there is to lose.
    Most copyright-aggregators only care about the money. Not misuse of the IP or the original artist’s intents.

    More so, perhaps your use of the song should be allowed despite the original artist’s misgivings. They get their say and you say something new and different on top of that.
    Even in the moral sense I’m not sure their interest trumps yours in this scenario.

    Batman:
    Tim Burton is not a comic-book fan, by his own admission. So I guess he was not selected because of his knowledge of Batman but because he was cool and hip and had great visuals in his other movies.

    My problem with the franchise movie scenario is your use of the word ‘selected’.
    Someone selected Burton to make that movie (I don’t like what that implies – that someone “up there” selects something for us “down here” – but never mind…)
    As a result we got only Burton’s vision of Batman – such as it is.
    Subsequently the Batman franchise became a campy joke in the next two movies – to offset viewers’ displeasure with the first two.
    Naturally, that didn’t pan out either.
    The franchise had to wait ten years to be “re-booted” or something.

    In a franchise-less world, if one had a better idea for making Batman – he could. The different versions could compete in the free market of ideas. That would be a good thing for all of us.
    A situation I view as desirable to us all.

    About Kane, Crumb, Waterson et al.
    None of these artists were co-opted in the obvious sense. We all make our choices. We all bear the cost of our choices.
    My point was that copyright sets the balance of these choices away from the artist and closer to the distributor/publisher/money.

    I’m not suggesting copyright does not allow anyone to create.
    I am a creator, and I want to see my work in print. I will sign over my rights in a heartbeat to see my name on a Batman book. Fine. So would many others.
    Crumb and Waterson would not. They took the slow route. The hard path.
    Good – copyright still allows for free will.
    Yipee.

    My point is that we should all strive for a system where artists don’t have to make that choice in order to create.
    There are forms of art and creation that are not commercially driven.
    Copyright says to those – “my way or the highway”.
    There’s no inbetween – the commercial concern trumps all others.

    Artists would not need to choose if they want to take the slow route or the long route – just so they can keep some of their rights. They would be free of that choice.

    And lastly this:

    And this is where the issue of creative commons comes in to play. On the other hand, how much interest would an exact reproduction of “Man with a Golden Helmet” or “Woman With a Mink” painted by you and signed by you generate? Probably little to none.

    I totally agree.
    Such a reproduction would not gather any interest. None whatsoever.
    Creativity and originality will prevail.
    Outright copying will be frowned upon – not cause it’s illegal or unlicensed – but because it’s boring.
    Art will succeed only where there is actual added value.
    Only if I can do something interesting with what I’ve learned and copied from DaVinci, Picasso, Kane and Burton – will I gain interest.
    I don’t need copyright regulation for that.

    Maybe if everyone were to make Batman movies at the same time, none of those would gather any interest either – and the whole idea of Batman will die a natural death. Maybe it is unoriginal and stale – and all these movies would prove that.
    Or maybe something better will grow out of all those movies.
    I don’t know – but I’d sure like to see it play out.

  299. len says:

    The first Batman was good. Jack did the best Joker for the 40s style. Ledger gets the prize for the new darker series.

    The first franchise jumped the shark when they put nipples on the costume. My wife said, “Nipples on black rubber? OMIGOD!”

    Details mean so much.

    I definitely liked the first Batmobile better than the Humvee version.

    So far, other than outright lifting without attribution, I fail to see where copyright is keeping you from doing what you want to do. Again, you should look at the definition of ‘publication’ because I don’t think copyright gets in your way. To be precise, it is the publication of copyright works because as pointed out, statutory copyright covers any item in a fixed form that meets the criteria for originality.

    So the discussion comes back to the example T-Bone used with “I Feel Fine”: trying to ascribe originality, or as most of us know, how much can you copy before it becomes stealing. If we couldn’t do that, the Beatles and Bob Dylan would own the business altogether. Everything is just a little pastiche from your best painting to your fingernail on your pinkie. Life is derivative. That is what evolution is and the difference is where the work is on the pyramid because devolution happens right alongside revolution.

  300. Alex Bowles says:

    More food thought – this from one of my absolute favorite thinkers, Lebbeus Woods, who has an unparalleled understanding about the interplay between architecture and society.

    His realm is abstract enough for his considerations of ‘architecture’ to extend beyond particular buildings, and to built environments of all types. When in comes to culture, that includes network architecture.

    In the realm of aesthetics—which is the flipside of ethics—it is clear that new definitions and distinctions must be made. The age of the singular and original object standing out from an aesthetically anonymous background (the Medieval model) is ending. Appropriation, the death of the author, and most especially of the genius, “mechanical reproduction”—not only in product and print, but also in virtual and electronic form—signal new aesthetic techniques, and also new aesthetic values and criteria of judgment. The emphasis is shifting to the background—the field—which is no longer anonymous and uniform, but alive with the unique, the singular, mass-produced and not. In such a time, designers, artists, and architects must rethink and redefine, in visual terms, the global field condition. They must learn to see, and enable, variations in the field—the aesthetically and socially complex field—and for that task what they most need is the capability to perceive, and conceptualize, the differences in similarities.

    Excerpt is from LW’s very recently published essay Same Difference. Again, no specific points being made here – just an interesting shift in perspective.

  301. Alex Bowles says:

    Oh, and here’s even more food for thought.

    Noted above was the extreme difficulty had by any but the most well-capitalized organizations when it came to copyright policing.

    Turns out that the same forces that are ‘democratizing’ every other aspect of media production and distribution may also be at work here.

    As mentioned, context really is everything. It’s hard to classify offensive infringements in abstract terms, but like the Supreme Court’s standard for judging obscenity ‘you know it when you see it’.

    As search gets cheaper, more sophisticated, and vastly more comprehensive, so does the ability of creators and producers to see ‘out there’.

    This seems like one more factor to keep in mind when trying to imagine an effective way forward.

  302. Alex Bowles says:

    A final point for consideration, this one for Mr. Asante specifically.

    Hope it helps.

  303. len says:

    @TBB: ” If, however, you put something on the very tip, it stays there-time passes over it. That, it seems to me, is the only line worth pursuing”

    The dieing words of the Buddha are said to be, “All things created pass. Press on anyway.”

    As artists, we get a shot at time. If we are aware, we make the best of it not simply for the greatness of it lasting but the pure joy of making it. We win by doing. The rest is foolishness. We call it Rock, R&B, gospel, soul, funk, blues!
    It is the song of the soul, and it sings for that higher aspiration, that little riff that rings true in the ear of the almighty for the people’s love.

  304. T Bone Burnett says:

    Buddha said that? How long ago did he say that?

  305. Alex Bowles says:

    @TBB: Genius. That just made my day.

  306. len says:

    At least before 1923.

    :-)

  307. len says:

    Beside it.

    I don’t think he’ll sue us. Do dharma by the begging bowls.

    Which is a point: for all the works you can’t use, look at the volume and fineness of the works you can. All of culture is there to be mined and refined by the smiths. Beethoven is happy to teach you. Mozart too. They smell funny but they know their stuff.

  308. Rick Turner says:

    Well, I’m an official member of the Foggy Dharma Boys…pickin’ and grinnin’ with the Buddha at least once a year…make that twice…

  309. Anders says:

    @len

    Culture like Beethoven an Mozart definitely is available for remixing etc. It would be great though, if _current_ culture was equally available – and not kept in artificial scarcity. “Being current” is important when I value culture – I suppose for most others too?

  310. T Bone Burnett says:

    Tom Waits has turned down offers to put his music in advertisements for forty years. He has the right to that. If a company uses one of his songs without a license, they are subject to serious penalties. That is a good thing. It protects Tom and his work- something we should all want- Tom Waits’ work protected. It is wrong that record companies strip mine artists’ work. It is wrong when anyone does it, and for an artist not to be able to stop someone from using his work dishonestly or unscrupulously or trivially, or to strip mine it, weakens everyone.

    It is not alright for someone to use one of Tom’s songs in a home video published on youtube without his consent. There may be some people who do not deserve that respect, but by the generosity of his contribution over many years, and his sacrifice by not accepting several fortunes to use his songs in ways that he disagrees with ethically and aesthetically…

    Tom Waits deserves that respect.

  311. T Bone Burnett says:

    Anders- Einstein said that Picasso preceded him by twenty years.

  312. Anders says:

    @TBone That is does not seem relevant to “being current” as an important value in culture.

  313. len says:

    But how does one equate being current with strip mining a current artist’s work? That’s a shade past imitative.

    We had a drummer in our band who so badly wanted to compete with the songwriters around him that without our knowledge, imitated the arrangement of a song on another band’s album. Because the other band was obscure, we didn’t know until another drummer replaced him and his wife showed us the original. By that time, we had released the album.

    Our mortification was deep.

    Fortunately, it could pass the originality test but had the first band gotten evil, we would have lost the entire manufacturing investment and the rest of the collaterals. And we will not rerelease it as part of a collection of best of.

    So I don’t think this is about currency. The best way for a band to be current is to take materials and do original work. All the people we learned from are out there for others to learn from, but we learned from them imitatively, we didn’t steal their work.

    There are exceptions but these fall under fair use and as I said, it is the fuzzyness of that term and the wild variations in copyright law across the globe that are problems.

    I’m not Tom Waits. He should protect his work. He is a major artist and his body of work has considerable value.

    Me, I’m a home hacker with a bit more experience than most. I do publish on the web and as long as props are given, I’ve no problem with the mp3s because as sound quality goes, they suck.

    Do people lift the songs for their own productions? Yep. I’ve found several home made YouTube videos of “Sam (for Liz)”. Liz Montgomery’s fans are crazy about her and I wrote and recorded the one song on the web about her that resonates. I don’t have a problem with it as long as they don’t claim it for their own or start selling copies. I take the same position as George Lucas with his Star Wars mythology: non-profit derivatives enhance the brand and furthermore, the culture. But that is his choice to make just as letting sites use “Sam” is mine. For me there is a benefit in that big family of fans of hers. Love. Can’t get enough. But those are her fans and I’m contributing to their love of Liz. My status is just “the guy who wrote and sang THE song”. That’s all good really.

    The trade-off is this: by letting it out on the web, I published it and that drops the value in the professional business regarding publication. I turned it into a folk song for all intents and purposes. People have written to me from Brazil, Turkey, China wanting the lyrics because they perform it in folk venues. I’m ok because that is precisely what that song should be and because a home brew recording done lovingly is good enough, it can be done now.

    On the other hand, if someone should decide to use it in a major production (won’t happen but for example), then copyright is what enables me to go to them and obligates them to come to me because it isn’t in the public domain by statutory and regulatory law. I only have to hope someone like Burnett is on the other end so I don’t have to hire a raft of lawyers and lose most of the money to the locusts. I can guarantee that if a profitable publisher ever became interested in me, the first thing I’d have to contract is to quit releasing versions on the web and to take the ones I have out there that I control down. Welcome to the negotiating table.

    No one is depriving any artist of anything they need except the fans who insist that it has to be free. They simply do not understand the business. People who do what I do shouldn’t be used as counter-examples to Waits. It’s apples and oranges.

  314. T Bone Burnett says:

    And yet, strangely, it is. Weird.

  315. Alex Bowles says:

    Actually, not so weird when you consider the way genius actually works.

    In terms of thought process from which their respective works developed, it’s entirely possible that both of these guys experienced something very similar things.

    Accordingly, Einstein’s remark about Picasso beating him to the punch makes a lot of sense.

    The Realm of Ideas will always maintain a certain independence from the forms of its expression.

  316. Alex Bowles says:

    Meanwhile, my though process is busy producing bad strings.

    experienced something very similar things.

    Still, this is why copyright should maintain a healthy distance from ideas themselves. The law – like science and art – is also a construction, and has a similar place in the order of things.

  317. len says:

    I’ve never found copyright to be a block to creativity. There is enough information in the public domain to learn anything I need to learn, and enough suffering and joy to have all the ideas I can have.

    Copyright is not an impediment to creativity or currency. It blocks theft. That is all.

    When Lessig starts publishing songs for a living, we can talk. Until then, he’s a lawyer.

  318. len says:

    http://www.sciam.com/article.cfm?id=the-language-of-song-an-i

    Something to consider when looking at creativity in other species of songwriters.

  319. len says:

    Back to Jon’s original proposal: if fees are paid to the four major labels by YouTube, and if fees are collected at the ISP, isn’t that going to be billing twice for a service once?

  320. Rachel says:

    Len said: Copyright is not an impediment to creativity or currency. It blocks theft. That is all.

    No, Len. I’m not arguing against Copyright, but it’s not Copyright that blocks theft. In fact Copyright makes it possible to define some transfers of IP as theft, by creating the legal framework.

    It’s the flawed processes in DRM that block theft (poorly). Sadly, they also block Berne-permitted activities too.

    As you yourself have previously said, it’s enforcement that’s key to ensuring the thief isn’t left unpunished.

    Just so we’re clear: attributing ownership is easy. Enforcing it is tough, and costs money.

  321. RyanMcN says:

    Tom – I can see why you had a problem finding anything about the copyrighted crops thing: No one here has got the actual cases right…

    The one that came to mind for me was a high-profile case here in Canada a few years back, and as complicated as it was, this is how it goes:

    A canola farmer in Saskatchewan is found to have a bunch of Monsanto Roundup Ready canola growing on his property, though he was using a different seed stock. Monsanto then sues him for the profit he made off the sale of that year’s crop. The farmer insists that those portions of his crop were pollinated from a nearby field that blew the pollen onto his property.

    The case wound it’s way through the courts for quite a few years, making it all the way to the Supreme Court, who eventually ruled in favor of Monsanto, though the farmer was not required to pay Monsanto’s legal bills. Here’s a bit of coverage I was able to dig up from the CBC’s online archives:

    A write-up of the case:
    http://www.cbc.ca/news/background/genetics_modification/percyschmeiser.html

    And this is a CBC Radio report on it from the same time:
    http://archives.cbc.ca/science_technology/biotechnology/clips/10998/

  322. Anders says:

    And to get back to Jons proposal. How can any reliable statistics on distribution or “use” of eg. songs be found?

    I haven’t understood the concept that Jon talks about as “[mechanical collection] at the ISP level where the routers can detect watermarks for sampling puposes.”

    Digital information can be distributed outside the networks of ISPs (outside any network, eg. on harddrives). Watermarks cannot be detected if encrypted. And doing any kind of measurements that associate profit and download statistics, just seems to me to be “the next big thing” for those hacker-bot-nets on the internet.

    Hmm?

  323. RyanMcN says:

    Heh, a correction on that: Patented crops, not copyrighted.

    You can’t copyright inventions. That’s just stupid… :)

  324. Armand Asante says:

    A final point for consideration, this one for Mr. Asante specifically.

    Hope it helps.

    I hope it does, too.

    I wish someone else would have read it before asking to see my credentials as an artist (DH1. Ad Hominem) just so he’d deem to reply to my arguments.

    Or that he wouldn’t have reverted to the later instance of (DH0. Name-calling) – “You’re out in space. You don’t exist” etc.

    Or any attempt at (DH5. Refutation), for that matter. I’d have truly liked to see where my arguments fall apart – so I may refine or change them.

    Alas, this has come too late.
    But I sure am glad someone wrote that.

  325. len says:

    @rachel: Precisely. The copyright sets the assertion of the right to a a copy of a physical record. The cost of enforcement is the cost of auditable identification. The technology IS there to prove the assertion. That isn’t the problem. It is the cost of the enforcement.

    So the system has to evolve collections, by kind, type and method of resolution.

    The business problem is solved at the point of sale, so the auditing information you need comes from the server sellers. That is enough. The copyright system works for the services model. It isn’t a means of enforcement: it is registered identity of a resource.

    1. Except, the government doesn’t enforce it. The IP owners do through the courts. $$$
    Bad juju.

    2. The current system of collection based on label relationships ensures we build middlemen back into the relationships. $$$ Good juju depending on the deal. Bad juju if it is an heir-apparent system of privilege.

    The catch in the throats of the labels and their peers is the transparent auditability. My intuition is that would make families nervous.

    Depending on the formula for that built into the auditing system, an artist should be able to see in one portal exactly what they are owed. And be able to trust that. It’s just basic DB design work.

    1. The problem is the deal isn’t between the artist and iTunes(n). It is between artists and their labels. Where fees are collected, unless the artist is on a label, no fees are collected. And there is no lower count value for the fees assessed to independents if any. One mogul said, “We are interested in counts of 3 million.”

    Wow.

    2. How are fees divided now by the YouTube deal? Are these fees a plus or minus to the fees collected from the ISPs? Are they related?

    As long as the basis of the auditing is an ROA/instance pair validatible by file type, you are trying to work this by copy. And in a system that is by design, a copying machine, that doesn’t scale.

    So get with the brave new world and figure out how to cost it as services. Selling on the web isn’t a mystery. Auditing doesn’t have to be either.

    And…

    Use a model based on the relationship counts. That is what Google does. It is reverse ranking. What you want is a money distribution that can use that idea. Think of it as being based based on the size of your Facebook network with a scaling relationship between the maximum nodes reachable and the size of the initial connections from the URL/namespace claimed. It gives fame a scalar count.

    Don’t claim the physical copy. Claim the names.

  326. len says:

    What would happen if a group of the world’s most powerful artists assembled a consortium to finance the servers such that they controlled the costing of services, the means used, and the resources that will be put to collections?

    Labels identify services. D’oh. iTunes is a market for downloads. It works because it is easily integrated to the player. Solve that with standards and skip past the phase where the vinyl plant controls your business because they also record the platters.

    What if powerful rich artists tried it? Pool your copyrights and own the servers. Control it from end to end. I wonder what that would be like.

    Producers, you too. Yep. The whole band. All services negotiated in real time. Independent producers allied to own those make it possible to have agreements about the quality of the production down to the mp3. Good point, T.

    Why not? Beyond the fact that ASCAP, BMI and SESAC would hunt them down and take them off their gravy train based on the current means?

    Because they are the ones who profit most by the current system, they are the ones to ask to change it. It is changing anyway. It’s choice of good or bad juju for your social/collaboration nework. Pool your IP, sell it well and keep it warm, and then the copy machine doesn’t have a chance against you. You know more people than it does.

    IP is a social issue, but then the question is, qui bono? IMHO, the beneficiary of copyright is the artist of whatever medium. However imperfect the means used to enforce it, the principle as a principle of right to collection is sound. The problem is the means and that is where innovation can be most innovative, the most courageous, and the most dangerous.

    … to be droll.

  327. Anders says:

    What if customers pooled their buying power? And set the terms: We pay only for the initial copy! Either you sell us the initial copy AND the license to make as many copies as we want or you sell us nothing…

    Copyright is a social issue. And right now customers are being ripped off by the entertainment industrial complex. And by artists who say “screw the customers and their desire for remixes, and ideas about not paying multiple times for copies that contain no further work”.

  328. len says:

    Customers do pool their buying power when they select the vendor. That is what iTunes is. When they bought the iPod, they took the eternal bite of the Apple.

    I’m not saying the system is perfect. However, the costs for a copy have been steadily dropping. I’m not saying you shouldn’t be able to copy it for your personal use or anything that comes under the doctrine of fair use. But others don’t have the right to remix it for profit. Where the line is drawn there is fuzzy as I’ve said repeatedly.

    You blame the artists? You really don’t have a clue about the business or the art. Go look at a recording contract. The artist is paying for everything. Read this and try to understand what I mean when I say the artists will eventually have to take on their own industry, something I’m sure the top earners view with the same discomfort as top earners in a mafia family.

    http://archive.salon.com/tech/feature/2000/06/14/love/print.html

    So make the artists poorer and watch your choices for quality become ever more narrow. Watch your concert tickets continue to spiral. Watch the arts become patronage based again such that YOU can’t download because THEY have exclusive access to those servers. Until the patronage system finally disintegrated in Beethoven’s time, what an artist could compose and perform in public was extremely limited.

    Freedom of expression is not a right. It is a deal between the artist, the industry that sells the art and the customers. I don’t deny the current system is unfair and have been discussing various ways it can be improved for the artist and their fans, but as long as fans insist on ‘it must be free’ then artists must insist on prosecuting those who abuse them.

    Calling copyright a social issue is just a way of trying to distract people from the issues at hand: costs and rewards for honest work. It is a business issue for those in the business. For those that aren’t, it is a psychological issue of desire vs honesty.

    The artists are the last group wanting to sue their fans. It’s a repulsive idea.

  329. T Bone Burnett says:

    There is no artist who views people as customers. Salesmen view people as customers. An artist views people as people.

  330. T Bone Burnett says:

    Every artist I know invests everything he has in his art. Most artists reinvest everything they make into their art.

  331. Davaudian says:

    Very true, I know when I was out with Waylon Jennings, the concessions were run by a third party. I don’t even know what our cut was if anything after expenses.

  332. len says:

    Both good points, T Bone.

    The happiest time of my art was when I sat on a stool in a steak house, one guitar, one voice, two speakers and a cheap PA amp, playing low and watching the tables excited by the faces. Every night they brought a new adventure and all I had to so was sing a song to be invited. That was in 1972-73. Today, I can’t take the cigarette smoke long enough to enjoy the moments so I don’t gig.

    It is a different experience, I think when the memory of a life’s work is wrapped like honey around songs we played. I can just barely listen to pop radio because it is like sitting in front of an old family photo album and I want to be here now, not there then. I can’t say how it works for others, but for me, the best song is the next one.

  333. len says:

    A lifelong friend of mine, Jay Dauro, was Cash’s road man. He had some fascinating tales of being with the Highwaymen (Waylon and Willie’s futile all day long golf games).

  334. Davaudian says:

    Ha, I did the Outlaws era and later Waylon with the Crickets. Lot’s of stories, but you would need to email me personally!

  335. T Bone Burnett says:

    It requires no courage or generosity to devalue another’s work.

    When you ain’t got nothing, you got nothing to lose.

    The Christians and the Lions

  336. Anders says:

    @len

    Customers could pool their buying power more than just selecting a vendor – as in my example.

    And I am glad you support fair use. We can fight the DRM anti-circumvention clauses of the DMCA together, then.

    But, why shouldn’t others have the right to remix for profit? The customers in my example who bought the inital copy and universal license might see that remixes are an interesting form of art that they want to encourage.

    I blame many artists for standing shoulder to shoulder with the industry in working against fair use, working for copyright extremism, turning the blind eye to the atrocity that is DRM, for working to deny citizens the benefits of technology to copy and remix at neglible cost.

    And the the prospect of a “patronage society” that you and others bring up is too pessimistic, I think. Society has changed a lot since 300 years ago. Wealth is spread out. 1000 normal, year-2008 people can very realistically fund an artist together. And Nine Inch Nails have shown that it is possible for some to do very well without the artificial scarcity of copyright.

    Customers pooling their buying power as I describe will also reward honest work. It will still be a buy and sell situation. The terms will just be different. Artists will be free not to sell if the one-time price is not right.

    And I am really glad that artist don’t want to sue their fans. And I really belive you. But I am disappointed that artists have then not done more to prevent the disgraceful lawsuits of the RIAA.

    @TBone

    You and others are constantly referring to people who want to enjoy remixes or who don’t feel that the artificial scarcity of copyright is fair, as thieves or communists. Sounds very salesman-like to me…

  337. T Bone Burnett says:

    Anders- I am not constantly referring to people who want to enjoy remixes or who don’t feel that the artificial scarcity of copyright is fair as thieves or communists.

    You are wrong about that.

  338. len says:

    @anders: Nine Inch Nails benefitted from the machine then turned on it.

    I get that but understand it is not a simple matter to attain that kind of popularity without the machine to push and everyone in that machine is a person waiting to be paid. Some more than others and some without much contribution other than to say yes or no, but the iTunes ecosystem is putting all of that into place again and so is YouTube. The beneficiaries are the same people but unless you can get Apple and its ilk to change their policies, it will stay that way. As I said, mp3.com offered a fair deal and so does Amazon last I checked. The majors labels would not support them and the major artists couldn’t without walking away from their contracts and potentially BMI/ASCAP. Do that and the checks stop coming in the mail.

    But if artists need to control and profit by it in the future, they will want to reconsider those deals. The genie is out of the bottle. As Love pointed out, deal directly with them and get used to the idea of smaller labels formed by the producers and artists. I don’t think we’ve seen the last shift of that industry away from the big four.

    The major artists can’t buck the system easily as Courtney Love was describing and not forfeit the collected fees. Between Dylan and me, there is a very long line of differentially rewarded artists. It isn’t a good system, but until the last few years, it was the only one that actually worked. It has been twisted into a cash machine managed by gamblers, but so has most of our economy. All I’m saying is you are blaming the wrong people for the way it works, even if you are asking the right people to change it.

    The remixes issue is not just about theft. It is about reputation and conscience. Did you see all the lawsuits filed by recording artists who’s works were being used unasked in the last Presidential campaign? I have to wonder how they can do that if they don’t own the copyrights to the sound recordings (an SR form submission) because those were works for hire, but I don’t wonder why. I believe that is the kind of thing T-Bone is referring to. No one can stop any0ne from ripping a CD and using it in their private video. But if they post that to YouTube, that constitutes publication. Again, terms of copyright and terms of publication are related but separable issues.

    @dave: Wow. You did start from jump. I’d love to hear those stories. The Outlaws were heros of mine. The Glaser Brothers were waaaaay underrated for their contributions to the Nashville sounds. I’m a huge fan of their work with Marty Robbins because that is not only fantastic harmony, but some of the best TexMex pickin on nylon strings on vinyl. “Portrait of Marty” is a personal favorite. You should write more on your autoBioBlog.

  339. T Bone Burnett says:

    And art is as scarce as the artist wants to make it. Artists can treat their art any way they want to. They can sell it or not. They can show it or not. They can allow it to be copied or not. No one else gets to tell an artist what to do about his art.

    I will add that art is, if not scarce, rare.

  340. len says:

    “1000 normal, year-2008 people can very realistically fund an artist together.”

    Kevin Kelly writes that because he doesn’t do it. Read the Love article and work out the costs. $100,000 a year won’t pay the bills for a recording band. It doesn’t scratch it. Kelly’s figures only work for amateurs like me who do all the work, own all the gear, etc., and even then, only if I stay home and do without health insurance. And at the end of that, the art is second rate. QoS is as real in the arts as it is in software.

    Also, try to keep 1000 fans together. It is that problem among others that brought the current system into existence: maintenance of all the collaterals involved.

    I realize the business terms are not art terms, but someone somewhere is doing the bookkeeping and marketing and tour planning and contract negotiating… and …. and….

    Ever wonder why the prices of concerts have gone from $5 and $10 to 50 and a hundred? It isn’t just that the shows are bigger; it is the road costs, the venue costs, paying people to sell the t-shirts, paying union grips, paying insurance for the vehicles, the drivers, and all of that before the first note is sounded.

    If all you own in the world is a beggin’ bowl, it’s ok to be someone’s pet pooch or favorite monk, but that is what is required. If musicians were paid what the engineers who create the ripping technology were paid, this might work but they aren’t.

  341. len says:

    BTW: this is true for any creative endeavor. Here is a quote from an interview with a former CEO I worked for just as he took over the company. I took out the identifying information but this is what the locusts say in sofware:

    “X has no particular training in this area. His degree was in finance and marketing. But perhaps that doesn’t matter. In fact, it may well be an advantage. He says the key to the new business is in ‘domain expertise’, understanding the demands of particular markets and designing software around those.

    ‘The direction of the business will be driven by the business needs of our customers, not the desire, or ability, of our software developers,’ X says. This is a major shift in the culture of the organisation: since its inception, the organisation has been obsessed by the technology.

    X is prepared to be interested in, perhaps even intrigued by, the technology, but there is no doubt that under his rule, management interest will be in managing. Efforts will be more focused on relationships with customers, internal processes in the company, and marketing.

    X says that when he started at the company, he asked the management team to describe their vision of the future of the company. ‘There were as many opinions as there were people on the executive team,’ he says. Now there is only one received opinion: the one endorsed by the MD. The board has a lot of money at its disposal, and not much excess baggage.”

    It sounds very smart, very money savvy, very managerial. How well did it work? It squeezed out all the fat until the company was sold in a heavily leveraged buy-out. The stock went to $50 a share and that CEO and the stockholders walked away rich.

    How did that work out for everyone else? They are laying off (200 yesterday) anyone old enough to push. Their customers are threatening lawsuits for non-completed work. The talent bailed immediately so anything being done is sub-quality.

    At the end of the deal, unless a manager has compiled some code or strung and tuned an axe, they can make up all the theory they like: it won’t sell and it won’t last. It’s a scam. A con. A shuck.

    That company will be broken up and sold like old firewood, the same fate as MGM under K.K. and Ted Turner. When the creatives are skinned, there is nothing to sell and you can’t recoup it in real estate.

    So first, don’t shoot the piano player. It gets real quiet if you do. Second, you can affect the system by buying from the dealers who support the deal you want, but you have to know what that is, how that works and who benefits.

    But don’t threaten the piano player. He or she will close the keyboard and walk away. They don’t make art for you if they are artists and they won’t put up with the rape for the sake of the sex.

    So you might really want to see that dream of the powerful artists making their own deals with each other and negotiating en masse and class. Because then you can deal with them and so will everyone who wants a piece of the natch.

    Me? Gresham’s Law at your service. Sad but so.

  342. Davaudian says:

    Len, I don’t want to be off topic with this great discussion, but yes, Marty, Tompall, Cash, Waylon, GeorgeJ……fabulous.

  343. len says:

    @d: Yes, the players when everyone had to play good, look good, sing good and write good because a machine was not enough even with Chester on the board.

  344. Alex Bowles says:

    What I find remarkable about this is how uncomfortable everybody involved is with the current arrangement – at least as far as the music trade goes.

    Top Selling Artists
    Stories of contention with labels are legion. Being spectacularly rich and famous is quite a consolation prize, but I wonder if more people wouldn’t prefer to own the rights to their own songs instead.

    Less Mainstream Artists
    Same as above, only without so much fortune and glory (not necessarily a bad thing in its own right, but possibly a problem in light of the ownership thing).

    Aspiring Artists
    On the wrong end of very unfavorable standard agreements (you pay for everything / we own everything / you get 10-15% / we remain opaque).

    Remix Artists
    Copyright clearance remains a colossal pain-in-the-ass, and probably does more harm than good – especially with older material – by condemning it to obscurity.

    Audiences
    Their well-founded hatred of the recording industry is also very well documented. And it now runs so deep that many younger people have started questioning the value of copyright itself, seeing it as nothing more than a mechanism for extortion and abuse. And because it has been to extort and abuse so extensively, it’s no wonder that the positive aspects of the law have been overshadowed in the popular imagination. This is not a healthy state of affairs.

    The Culture in General
    Getting into sketch waters, for the exact reason noted above.

    Record Companies
    If ever there was a group that needed to be saved from themselves, this was it. But having bought off Congress so thoroughly (in tandem with every other publishing trade) they no longer benefit from rational governance. This situation has swiftly degenerated into extremely adversarial relations with their customers, driving the perceptions noted above.

    Entrepreneurs
    These guys have found themselves in a situation where they have to ask permission from the institutions they’re trying to eclipse. So now we have ‘destruction’ without the ‘creative’ that’s supposed to go along with it.

    ISPs
    It’s all downside for these guys. They find themselves press ganged into service as unpaid policemen, stuck between copyright owners (who don’t pay) and customers (who do).

    In fact, I really can’t think of anyone who’s creating value, and also winning, except for groups like NIN and Radiohead, who are taking the fame build in the old system, and making hay in the new.

    But this is hardly a sustainable business model. Instead, it relies on a temporary disconnect, allowing these guys to performs something like cultural arbitrage.

    The net result is this: everyone involved seems to have something they can give up, and something they can gain. But the master transaction is complex, as the willingness of one group to trade depends on the outcome of two separate groups coming to the ‘right’ settlement between themselves, and altering the overall conditions of the debate. I don’t know what the Game Theory folks have to say about this, but in the real world, it’s a major conundrum – especially when the legislative body in the middle of society is openly corrupt.

    In the meantime, confusion reigns, and looks a lot like this. (The Star Wars story, as told by somebody who has never seen any of the movies).

    Sure, it’s been a major disruption, but at least the Internet is good for a laugh.

  345. len says:

    @alex: re: game theory. A Nash equilibrium is bursting and the major players are trying to reequalize for the same players but other cartels are emerging to take advantage of the new board and pieces made possible by the shift in the environment of play. Those to gain the most from the change are at the greatest disadvantage to control the change unless they unilaterally form their own cartels and find a rational strategy that they can at least benefit by. (See pareto optimality and subgame perfect).

    “A Nash equilibrium, named after John Nash, is a set of strategies, one for each player, such that no player has incentive to unilaterally change her action. Players are in equilibrium if a change in strategies by any one of them would lead that player to earn less than if she remained with her current strategy. For games in which players randomize (mixed strategies), the expected or average payoff must be at least as large as that obtainable by any other strategy.” – gametheory.net

  346. Tom Wilmot says:

    I’ve stayed out of this conversation for a couple of days but have kept pace with the dialogue. From a nascent point of DRM as any sort of effective tool, the conversation has spread out towards a general discussion of the music business.

    Art in bed with commerce is a tricky thing – always has been, always will be.

    So many art forms, music, film and traditional publishing have such exorbitant costs involved producing the final distribution version of the initial vision that, by necessity, creation as “product”, directed at “customers” is the outcome – not necessarily by the artist(s), but definitely by the commercial partners in the enterprise.

    (Y’all are talking about art, but Sony is looking at units sold).

    Music needs to be listened to, film needs to be watched, writing needs to be read, painting needs to be viewed – without the participation of the audience, you might as well just keep your ideas in your head and not bother with anything else.

    There is a symbiosis between the artist and the audience, whether it’s one person or one million – and this is where I see the logjam occurring.

    A lot of you who participate in these comments are old enough to remember when there wasn’t such a thing as a music video, when FM radio was a daytime broadcast and the closest you got to a multi-media experience was looking at an album cover while listening to the album. A lot of you remember what mono sounded liked mixed down to sound halfway decent coming out the speaker in your Dad’s Pontiac – You know, back when music wasn’t a BIG business.

    Remember when there was about a bajillion record labels out there? Dot, Chess, Dunhill, Kama Sutra, Sun, Nonesuch, etc., when music was a relatively small business but a big deal because – man, you were young, you were vital and these songs were like reflections of where you were going, where you’d been and where you were at emotionally right then and there?

    My old man played trumpet in a pickup Swing band in Binghamton, New York on weekends – back when 78’s were the standard of fidelity. Christ, it was the only way you were ever going to hear Benny Goodman or Artie Shaw or Duke Ellington. How much production and publicity and marketing did these guys get? Radio and the occasional novelty slot in some movie or short; that was it.

    And before that, it was playing in clubs and dance halls and theatres night after night after night.

    So, maybe the industry has come full circle. There are a lot of teeny labels out there like Elephant Six and Rainbow Quartz and Not Lame and RaveOn that support a handful of artists in every genre you can think of. These artists have their MySpace page and occasionally their URL and they’re throwing out an mp3 here and there to wet the appetite, but for the most part, they’re doing whatever venues they can get, building word of mouth the best they can and keeping on keeping on.

    Some of these labels will probably screw their artists over. Nature of the beast. Some of these artists will eventually say: “Okay, world, you win – I’m going into securities broking like my old man” and some of them will just keep playing, because it’s what they need as much as bread and oxygen to keep going.

    It’s the tiny “new business” like a tic under the skin of the gigantic “old business” that’s lumbering along like the dinosaur it is, because – hell – it’s the way we DO business!

    Alex pointed out the level of dissatisfaction of nearly all parties involved in the music business. Now, the interesting thing is, unlike film, you CAN reduce the costs of production and distribution in music – you CAN cut out a lot of middlemen that don’t necessarily contribute to the artist’s vision or the final outcome of the product.

    Mike Nesmith has been doing this for a while. While you CAN get mp3 versions of his work, you can also pay a bit more for a quality pressing from FLAC files – shipped straight to your door. This scenario, aside from the issue of pirated copies, seems to fit everyone’s bill aside from the “record company”, since there’s no record company other than Mr. Nesmith’s to consider. It’s a musical version of “Print on demand” – a publishing system that is growing in use and popularity.

    If the level of dissatisfaction is that high among artists, why not look at something along the line of an artist’s consortium? Small versions of that, such as the Elephant Six Collective are doing nice, but not spectacular business, but they do seem to be able to reduce the costs of recording, distributing, touring etc., by pooling resources. Why not control the business you’re in, or at least that part of it you CAN control?

    Face it, it’s still more fun than selling distressed securities.

  347. len says:

    Precisely. And as T-Bone pointed out, it has the benefit that his team can control the production quality down to the mp3.

    But we can’t get around the fact that there is literally one store that counts on the web, iTunes and one channel, YouTube and they are cutting deals with the majors. The only force that can break that hold is the major artists and it is not to their benefit to do that unless like some here, the deal is just too sour to continue supporting, or in other words, there really are other values than big fame and big money to consider. Again, see Rounder.

    So the perfect NE subgame is available to those who can create their own NE, but as long as the delivery platform is an iPod, they aren’t free of the emerging systems. The technies managed to break the one stranglehold that was keeping the old NE in place: distribution.

    The mashup is an entirely separate issue that gets squashed in with copyright because there isn’t any other legal framework for it. That is why negotiation portals that would make it easy for the mashup artist to contact the copyright owner and obtain permission or refusal quickly is a benefit. That way, everyone understands and anyone about to invest significant time can move on.

    An idea who’s realization hurts other artists by using their work contrary to their wishes is probably not a good enough idea to realize. It’s better to wait or change the realization. Wouldn’t you hate to do your masterwork only to discover your reputation has now been damaged beyond repair among your peers? Once again, the best result is improving who one gets to work with because that is an ultimate good. Spoiling that by failing to get permission when permission is easy to get isn’t smart. So another way for us to push into the Chinese handcuffs is to enable better and easier access to the points of the negotiation.

  348. T Bone Burnett says:

    The art of negative control.

  349. Jon Taplin says:

    Anders- The dispensation of the money pool would be figured out by sampling. ASCAP and BMI only sample 1% of the radio play, in store, bars and restaurants. And yet no publisher or songwriter seems to complain.

  350. Alex Bowles says:

    We interrupt this thread with a brief message from our sponsor: the spirit of pure creativity, also known as ‘play’.

    One way or another, we – as humans – need plenty of this.

  351. len says:

    And now we know what might be in this for the ISPs who would have to police the samplings for free otherwise (something they aren’t inclined to do without a gun to their head):

    http://news.cnet.com/8301-1023_3-10144105-93.html?tag=newsLatestHeadlinesArea.0

    Notice the focus on services, in this case, one that sends the take-downs on behalf of the claimnants. Pay the ISPs for every file sharer they report to the take-down service. Welcome to information ecosystems 101.

    I don’t think it is a good strategy because it pits the ISP against its customers, but it is an example of how web business men approach a perceived market, even one web users despise, on behalf of deeper pockets, then create an ecosystem of services designed to work in that market.

    As T-Bone said, artists don’t think like this and sadly, that turns them into patsies for those that do unless they create their own information ecosystems to meet their own needs beside or beyond enforcement. The rule of thumb is that any service that removes inhibitors to exchange or collaboration tend to scale faster and wider than those that inhibit. The web abjures the inhibitors (as the cliche goes, routes around damage). For artists, I think it good to concentrate on services that remove inhibitors to working together, managing their works, and growing their own networks of collaborators and fans. That is why the social network technology has more promise for them than the ISP-spooks even if the latter have to exist to hold down the piracy to reasonable levels.

  352. T Bone Burnett says:

    Who controls the pipe?

  353. len says:

    The man with the matches.

  354. T Bone Burnett says:

    I’m serious. Who controls the pipe? At the moment? Isn’t that the person to make the deal with?

  355. Alex Bowles says:

    As with any stable arrangement, there needs to be a division of power. If any one group ‘controls’ anything, the net result is that everybody gets screwed – starting with whoever doesn’t have the whip hand, and finishing when the abuser is finally put into their (well deserved) grave.

    That’s the Neanderthal (aka RIAA) way of doing things. Balance is what we’re after now: freedom maintained by a series of checks.

    I’m with all the folks who think that mechanical filtering (for lack of a better word) at the ISP level is completely wrong-headed. For one thing, filters are exceedingly unlikely to become anything more than security theater. Spoofing and encryption will keep them from being truly effective, while imposing a major ‘convenience tax’ on everyone who uses the network, while creating a ‘demand’ for a service that benefits no one more than the service provides themselves.

    And of course, automated filters will also be arbitrary, meaning that there will be plenty of collateral damage in terms of completely legit material that gets killed in transit (see the No Fly List for a good corollary).

    This could be avoided if the systems, their designers, and their finances were all completely transparent. Except that you’d then find yourself defenseless against problem one – circumnavigation.

    I’m a huge fan of search systems that allow people to (or services hired by people) to scan the web, and look for places where their material shows up. Combined with a norm that has creators retaining their ownership of copyrights, it would remain perfectly neutral – allowing owners to decide, on a case by case basis, if they wanted to assert their rights with regard to use, or if they wanted to allow the appearance because they felt that the subsequent use enhanced the value of their creation.

    Assuming these were suitably transparent they could also provide a cost-effective ‘paper trail’ that could be used when sending take-down notices to ISPs.

    This two-way link could also allow content users to inflict legal retribution on those who abuse take-down notices by attempting to censor material in which they have no ownership rights.

    As an aside, I think the absolute worst abuse perpetrated by record companies against artists was the insistence of rights ownership as a primary and near-absolute condition of representation. I really don’t understand why this couldn’t have been addressed under anti-trust law, or even the RICO act. Seriously, this just needs to end.

    So assuming that we shift to a norm where folks investing in promoting, managing, and growing an act typically get limited and necessary rights, instead of total ownership, individual artists are given far more latitude over exactly how they decide to relate, financially, to their fans.

    (I realize that there is a separate, and appropriate use of work-for-hire arrangements, and good reason for maintaining that structure, but again that’s a different conversation).

    If the fans are using clips to talk amongst themselves (so to speak) in a non commercial fashion, then the ability of the artist to control those conversations should be fairly well restricted. On the other hand, if you’re dealing with commercial exploitation of a work, then the artist should be given far more control over their involvement.

    In terms of lines of demarcation between commercial and non-commercial use, consider if any entity involved in making use of commercial liability limits (i.e. LLC’s, S-corps, even 501(c)s). If they have anything to do with anything, the use should automatically be considered ‘commercial’, and therefor subject to the far more restrictive set of speech rules placed on corporate ‘persons’.

    As far as rights go, they will be well advised to ask permission, unless the author specifically releases the work with no restrictions on commercial exploitation. Otherwise, the rights owner can demand a (possibly expensive) retraction, and if this isn’t possible, a standard fine, a market value for the use, and / or demonstrable damages, whichever is greater.

    In other words, I can do drunken karaoke on YouTube to the sounds of Bruce Springsteen. But Budweiser can’t appropriate the same song for an ad persuading me to drink their beer before hitting the stage – or even footage of me being an idiot.

    Of course, there’s the question about YouTube selling ads. I may be willing to embarrass myself by posting my sloppy version of Born in the USA online, but if it’s really bad (or really good), gets a gazillions hits as a result, and YouTube starts selling ads against the traffic, at which point do the owners of embedded elements start to reasonably expect payment?

    I happen to think the ‘we’re doing you a favor by giving you free hosting, so you have no right to share in any profits we may make’ argument to be very disingenuous. It also creates situations ripe for exploitation and abuse.

    I recognize the intelligence of the DMCA ‘safe harbor’ provision, and the notion that YouTube can’t be liable for everything that gets posted in the same way that NBC, for example, needs to make sure that rights are cleared for everything they broadcast (and needs to have Errors & Omissions insurance in the event they drop the ball.) Safe harbor is fine, as long as they’re purely a hosting service, with a truly ‘hands off’ approach to what goes online.

    But when they start selling ads against traffic, and developing various ways to document demographic info for particular streams in order to make certain placements more valuable to particular classes of advertisers, then it’s a whole new thing.

    If we can set the ‘hallowed ten percent’ for talent agents into law, couldn’t a similar arrangement (say 30% of ad revenue) be established for the creators of popular and ad-friendly streams?

    I realize that this intrudes on the astonishingly opaque world of what people actually pay for media placements, but perhaps this is just one more vestige of the old media landscape that won’t survive the transition to the online age. It’s fine when there are only two parties involved, and the audience is at home, passively sitting in front of the TV, generating nothing more than a Nielsen rating. But if the ‘audience’ is crossing the line, and becoming a producer in its own right by actually crating material that gets used commercially, then there’s a real need for a more transparent arrangement.

    As an aside, I do like the idea of treating the internet like one giant bar. The assumption is that people are there to mix it up, so that everyone who steps inside should be liable for some basic fee that gets distributed among copyright holders.

    The more popular you are, the bigger the slice you receive. This seems like the hardest thing to work out, in terms of law, mechanics, market pricing, and so on. But it also seems like the kind of problem for which the cause (the internet) is also the solution.

    In any case, I do see how a functioning, stable ecosystem could take shape in theory. How to get the players to participate in practice is a whole different thing.

  356. len says:

    They own the pipe.

    They don’t necessarily control it. Like the cable, servers farms provide servers and the people to run them. You can rent server time now.

    The question is not who controls the pipes, T. It is who offers the services and do you trust them to host YOUR business and these are not necessarily the same hosts.

    The pipes run everywhere. The way that you hook those services together, the clusters or related functions makes it go in the context of the social/art/collaboration networks. You build those. You own those. Or you don’t. The ISP may monitor but the question is who pays for that service. From what I read, it is a service that sends out cease and desists, or take downs. The question is, do you want to rent their services or do you want to rent the same services from the ISPs directly and do you trust the ISPs not to forge.

    You can host your own servers and buy pipe time. You can rent server space. You can share server space and the rest of the enterprise. It really makes no difference to the technology. Just the costs.

  357. Chris Weekly says:

    @Alex: I’d give you just about all my moderator points if I had any to give.

    @JT, Tbone et al: Caveat: This comment post of mine comes from a place of admiration and respect for your work and your views.

    @Certain posters: writing the most words here doesn’t make you right.

    @All: I think those in favor of empowering ISPs to monitor, filter, and take action on the bits they pass along, have just not thought through the ramifications of that position. It is madness.

    At what cost does the pursuit of IP rights become unjustifiable? I’m not saying creators of content should not be credited and compensated; I recognize the challenges this poses today and I sympathise deeply w/ artists [including friends and neighbors who derive all their income from their creativity] wishing to control their works’ use… but this eagerness to grant ISPs, or the Government, or any other single entity these incredibly invasive policing powers — affecting *all* communications — in the name of chasing royalty revenues… it’s unthinkable. The harm this does to society is overwhelmingly greater than the limited, questionable benefit it provides to a very, very small number of individuals.

    Consider that a good number of this blog’s audience are in a tiny, uber-elite minority of content creators, in that they receive international recognition for their work and meaningful income from licensing arrangments for their I.P. The vast majority of creative types never reach this situation. I find it interesting that the same ostensibly progressive voices railing against the privileged few who have figured out how to benefit from the financial system (at everyone else’s expense) forget their populist agenda when their own income stream might be impacted. This isn’t intended to start a flamewar, but I think the analogy is apt. People here have absolutely skewered financial types — those who broke no law but who e.g. shorted the market as it crashed — for serving selfish purposes instead of considering the harm they were doing to the system as a whole. Well, those who suggest that centralized authorities should be granted the right to inspect every packet of information on every citizens’ computers and every packet passing over the network, just in case some of them might be infringing on your copyrighted material, are doing precisely that. It’s beyond draconian, it’s outrageous and ultimately it may even be self-defeating.

    What kind of art will be produced in the Surveillance Society? What kind of music would we be listening to today had Robert Johnson asserted ownership of 1-4-5 AABA blues? How many lawyers and videocameras will we deploy to cafes and bars to ensure noone “steals” a lick in a live performance or — Copyright forbid — do an “unauthorized” cover song? What happens to innovation when a hardware manufacturer needs to get their plans approved by a cartel of media lawyers? What happened to MS Vista in its attempts to incorporate DRM infrastructure into the OS? What is the cost of the destruction of the general purpose computer per se? What is the cost of the loss of the last traces of privacy? These are serious, serious questions, and I argue their import surpasses any ethical quibbling or complaints over old-school, pre-internet “rights” to “property” that takes the form of ideas.

    Tangent: Maybe ideas (including digitized works of art) are like children; you raise them a certain way but ultimately they have lives of their own, and as much as their parents would like to dictate their behavior, in the end you have to let them go, and simply hope they bring you some joy as they mature. What you don’t do is put them under lock and key to prevent them from going in a direction you don’t like. /Tangent

    Before accusing me of anything, please understand, my fundamental difference in opinion here comes not from thinking everything should necessarily be free — in fact my 14,000 song mp3 library has been paid for over the years, legally, at great personal expense, via iTunes, emusic and physical CD purchases. My convictions come rather from recognizing that FREEDOM from intrusion, from monitoring, from restrictions on remixing and reuse and creative production of one’s own, and the net impact this has on the culture at large, is just so much more important.

    If you disagree w/ me, and Alex, and Lessig et al, please read Cory Doctorow’s “Little Brother” (a modern companion piece of sorts to 1984) for a sense of the outcomes I — and many other progressive, artist-supporting types like me — dread the most.

    I refuse to accept that openness and privacy and freedom should be sacrificed so cheaply, let alone by artists(!!) and the otherwise enlightened, delightful and diverse crew I’ve found at this blog.

    I don’t have all the answers, but I am absolutely certain that “track everything eveyone does everywhere, and litigate and prosecute” is NOT in ANY of our best interests (except the lawyers).

    Peace.

  358. Rachel says:

    Bravo, Chris.

  359. T Bone Burnett says:

    Chris- For the record, I agree with your valuable contribution above. (We have a different understanding of what Robert Johnson did or didn’t do, but generally, I am with you.) I think the legal status of ISPs as common carriers should and will be maintained. I don’t see how an ISP tax would get through the courts. As my friend says- taxing ISPs for music piracy would be analogous to taxing airlines every time they carry a person with a cold. I do think a consortium of artists (a horrifying thought in itself) could develop a new and reasonable set of standards. As is always the case in the midst of a new development, it is importance to find a balance. (We could do away with copyright law, and we could do away with the internet. My sense of the thing is that it is already as invasive as you talk about above.)

  360. T Bone Burnett says:

    … it is importance to find a balance. (I love that sort of thing. I am so excitement!) EDIT Since I got it wrong in the first place, I would like to change the word importance to necessary- it is necessary to find a balance.

  361. len says:

    T sez: “it is necessary to find a balance”

    Make it interactive like your mixing board. Tunable.

  362. len says:

    Nicely said, Chris.

    It’s inspection of shipping invoices except they are digital goods. It really doesn’t have to be more complex. Will there be server systems that move illegal goods? Sure. Just like warehouses. We can make it work better than before if not financially perfect.

    Do NOT empower the ISPs to monitor and sample. Get that feedback elsewhere on the servers YOU control. Do watermark,

    ISP monitoring of packet types with SKUs.

    Last night, my bro brought Victor Borgia on DVD. Windows player barked. Situation: owner of copyright work with work in hand cannot play the DVD if the machine hosting it is not connected to the Internet. So much for using the lab machine (new hot one) for viewing.

    That’s how Mickey Mouse this is getting. We make our art hard to see by the very audience we want to see it.

    That seems to me, well… dumb.

  363. Jon Taplin says:

    T-Bone- At one time ISP’s were common carriers, but George Bush’s FCC changed all that. They are now Information Service Providers and they actually do contol the pipe they own. However, there is no reason not to think that an ISP fee is legal in the same way that in Europe a percentage of the sale price of Blank CD’s goes into an artist collection fee pool on the assumption you were buying the blank media to burn your own CD.

    Len-Watermarking is moving fast. No reason you couldn’t treat a router like a gas meter.

  364. len says:

    At the ISP, is the router counting file types and watermarks, or establishing copyright identity?

    What is the meter reading AND recording?

    How can the watermark be read at the ISP when the file is not one but multiple packets arriving in near-random order for protocols that guarantee delivery of packers? This isn’t as simple as a watermeter, AFAIK. I need a technical reference to the ISP monitoring architecture for registered IP.

    Jon, I don’t think we can really say this isn’t intrusive in a packet-based system as long as the packets can be used to authenticate the identity the packer sender, and that can be spoofed. The challenge is to authenticate the identity of the resource from which the packet originates.

    These can all be fooled. So all you get is a frequency sample of honest packets and these are already paid for.

    Is there anything in that for the audience?

    Hmmm… their votes count. Their artists get the biggest piece of the pie. IOW, it’s a fair voting system as long as there is equal access to the pipes. IOW, this doesn’t work without net neutrality.

    But there are two distinct threads in the topic space. One is how to sample ISP traffic, and the other is the IP as managed transparently. The balance can’t be tuned at the ISP. That’s just a meter. It is tuned by the IP agreements of the artists and their service support as provided by themselves or consortia of their peers.

    As I said in the first response, the numbers and the shreddin’. If as Love says, the artists should deal more directly, they need the technical services to make that easy.

    Labels can network libraries for work. There are many more ways to sell music components (sounds, materials). Embrace the mashup and license it for distribution.

    On the web, because groups operate in the eye of the web itself, they have to trade on reputation because of the speed with which they can lose that and all they invest.

    Be open.
    Be transparent.
    Be balanced.
    Be provocable.

    Then point your services at each other. Work to increase the value of the namespace identifying your libraries by linking them and reverse indexing the links. Then use the link metrics to ascertain costs and rewards.

    It takes the money out of piracy. Not all, but the bits you lose to pilferage are trivial to the gains you make by linking. If you want to monitor at the ISPs, go ahead, but the artist networks that decide not to will be the heroes of social networks world wide.

    Heroes on the Web ARE the tip of the longtail. Always have been in the web markets.

    It’s a new kind of rock, old man. It absolutely requires that you live like a hippie: holding your love right out front and trusting the people to do the same. If it is a lie, it is a lie you have to believe so it will happen.

    And it seems from all evidence, that social network rules are very stable and tend to the good.

  365. Anders says:

    The Isle of Man seems to have made a system of blanket fee, unlimited download.

    http://arstechnica.com/news.ars/post/20090119-isle-of-man-gets-unlimited-music-downloads-with-blanket-fee.html

    And if the the central repository just doesn’t suck, I guess there is no reason to download from anywhere else. And therefore no reason to measure/sample in routers or other technically difficult places…?

    One interesting aspect of the blanket fee is that I guess that is exactly the consumers pooling their buying power – I wonder when they start making real demands?

  366. Steve Caimano says:

    Well, I hesitate to join in here since I feel as if I’m intruding on a conversation at table next to mine populated by far more interesting people but it’s the Internet so I’ll do it anyway…

    By way of introduction, I’m not a musician, but I am a consumer of music. I own an IPod but the only songs on it are copies of CDs that I own…and I own a lot of them. I’ve never downloaded a piece of music, legally or illegally. Once upon a time, I believe on this blog, I found this link and I thought it was the clearest explanation of the future of the music industry I’ve ever read:

    http://sethgodin.typepad.com/seths_blog/2008/03/the-live-music.html

    My points would be:
    – The genie will never be put back in the bottle. Once the decision was made to digitize music, musicians lost the ability to control its reproduction. It took a while for technology to advance to this point, but the handwriting has been on the wall for quite some time. Attempts to stem the tide will either a) fail technically (DRM, watermarks, etc), b) unfairly distribute too much cost to some and not enough to others (broadband fees) or c) involve a level of privacy invasion with which I believe most people would be uncomfortable.
    – The way the artist of the past made money was by receiving very small amounts from a large group of people. The way the artist of the future makes money is by receiving a larger amount from a smaller group of people.

    I own every recording T-Bone Burnett has ever made. Some of them in both LP and CD format. I’ve been to three live shows…I would surely have been to more but T-Bone has other interests besides touring.

    The things is, I would be willing to spend a lot more money on T-Bone product, much more than I would be willing to spend on just about any other artist. I would spend more money on exclusive content, or “first in line” premium concert tickets, or the chance to see him in the studio, etc. The problem is that I don’t have any way to let T-Bone know who I am and he has no way to identify me.

    I realize I’m ripping off Seth Godin’s thesis here, but it makes so much sense. An artist doesn’t need to have millions of people by a CD or download a song to make a living. He needs to identify a few thousand people who enjoy his work so much that they’re willing to give him $100 per year to hear more of it.

    Unfortunately, the most efficient way to identify those few thousand is to make music as freely available as possible. It’s obviously a leap off the cliff. The artist has to hope that some of the people who hear his work will go to a concert and get hooked. That they’ll sit down and google him in the hopes of finding out more. That some of them will end up on the artist’s website and sign up for exclusive content, etc.

    I realize that this concept does some serious damage to the idea of intellectual property rights, but I don’t see any way to balance these rights with the technical and economic realities of today. I’d be interested in hearing the thoughts of those assembled here to Seth Godin’s ideas.

    Steve

    PS T-Bone, if you’re ever in MD I’ve got a spare bedroom…bring your guitar, I’ll buy. ;)

  367. Chris Weekly says:

    @Steve: Right on brother. Your voice is more than welcome!

  368. Alex Bowles says:

    I know this conversation has gotten technical in places, but oddly enough, we seem to have missed the most critical technical aspect involved with copyright: the specific details of the act itself.

    I just came across an excellent post from Crosbie Fitch that is so germane, I’ve taken the liberty of re-posting the entire thing here.

    Is Downloading Illegal? · 25. January 2009, 11:58 by Crosbie Fitch

    There is considerable propaganda attempting to mislead the public into believing that downloading is a criminal act on the part of the downloader, e.g. “Illegal downloads caused considerable losses to the music industry last year” or “If you download copyrighted music you are committing a serious crime”.

    So, let’s get the legality of downloading established once and for all:

    Downloading is the act of communicating a file from a supplier’s server computer to a recipient’s client computer, at the latter’s request, and at the former’s consent.
    Downloading a file (containing or representing an intellectual work) involves the manufacture of a copy.
    The copy is manufactured by the supplier (by their server) because they (unlike the downloader) are in receipt or possession of the source work, or have access to it.
    The manufactured copy is communicated by the supplier to the downloader (the recipient) via a computer network (whether electronically, optically, or by radio transmission, etc.).
    The downloader receives the manufactured copy, but does not participate in its manufacture (impossible without the source) in the download process.
    It is possible that ephemeral, intermediate copies were produced by the network and other devices during the transmission of the copy and its storage by the recipient.
    The recipient (their client computer) may have had to assemble the final file if the copy was transmitted in small fragments rather than in one piece, however, the act of such assembly does not constitute copying.
    If the intellectual work is not protected by copyright no infringement can occur.

    If the intellectual work is protected by copyright, and the supplier is not licensed by all copyright holders to the work to manufacture and distribute copies, then the supplier may infringe copyright in the process of manufacturing and supplying copies to downloaders.

    In no case does the downloader, the recipient of a downloaded file, commit copyright infringement.

    Having downloaded, the downloader may then commence the manufacture and supply of further copies to others, which is of course a potential infringement.

    Culpability for copyright infringement lies not with who requests an act of copying, nor with who receives a copy, but with who performs the critical act of manufacturing a copy (and who distributes/transmits it).

    In conclusion:

    Downloading may involve copyright infringement, but this is not an act committed by the downloader.

    ***

  369. T Bone Burnett says:

    Alex- You raise the stakes again. An author owns his work by virtue of having written it. He has authority over what he has originated- over what he has authored. If he writes it on a park bench, he has put it into the public domain. If he writes it on a piece of paper, that paper is his property and, in our Bill of Rights, he has the right to keep it private. It is private property. To do away with intellectual property is to do violence to the notion of privacy itself and to the notion of private property.

    To put something into circulation on the internet is very close to writing something on a park bench, it seems to me. The Zen poets said to write something down is to destroy it.

    If one writes a letter and sends it, that letter becomes the property of the person to whom it is sent. However, for that person circulate copies of that letter without permission or against the will of the author is wrong.

    To copy the letter and sell those copies without permission or against the will of the author is not only wrong but reprehensible. To receive an unauthorized copy of the letter, change its contents, then publish that is twisted.

    I am not a proponent of copyright law and certainly not of the RIAA and all that, but I am a fierce advocate of privacy. This is an extremely complex and nuanced issue, and I look forward to Jon’s convening a conference, or maybe a dinner, in the next couple of months.

    No piracy
    No privacy

  370. Alex Bowles says:

    TBB – I agree that a conference is entirely in order. I can think of a couple especially good vintages that I’d like to contribute.

    Regarding the ethics of downloading: that’s a separate question entirely.

    In fact, the glaring disconnect between what’s right and what’s legal is, perhaps, the best argument yet for legal reform.

    For an arrangement to be truly viable, five things need to be in alignment

    1) Human’s intrinsic of what’s right and good.

    2) Principles of law that reflect and express this basic sensibility.

    3) Specific legal codes that can be enforced equitably, efficiently, and effectively – without violating our broader legal principles protecting the basic freedom and dignity of humans from intrusive or arbitrary government action.

    4) The natural capacities and limits of whatever technical means exist for duplicating, distributing the class of work defined as IP.

    5) The general acceptability to the buying public of the means for payment.

    The pre-internet world had developed a relatively stable equilibrium among all these requirements. Though the particulars were far from ideal, the overall stability of the arrangement made it acceptable and viable. And – as a culture – we now have an abundance of spectacular work to show for it.

    But the tandem developments of digital media and the internet destabilized every one of these points. The net result was complete chaos in the market. To a lot of people’s thinking, this was actually a welcome thing, as the limits and compromises of the pre-internet arrangement had become painfully obvious, and a return was becoming increasingly impossible – mainly because they were starting to threaten a major contributor to human development in general.

    In short, we outgrew our system. Like Abraham Lincoln said, you can’t expect a man to walk around in the clothes he wore as a boy.

    That said, there’s been no reduction in the desire for the kind of quality that the old system provided, or change in the sense that the people doing the best work should be paid handsomely. Put differently – we still want to walk around dressed, even if our old outfits don’t fit.

    To that end, we should recognize that the good we had was not a function of the old system per se. Rather, it developed from the equilibrium that system established. In other words, we can safely abandon the 20th century model, while maintaining a rich and viable culture if we re-establish equilibrium between the five elements noted above.

    And that’s where things become easier said than done. But if folks aren’t even discussing new arrangements, chaos remains the order of the day.

    So yes, dinner is where things begin.

  371. Alex Bowles says:

    1) Human’s intrinsic sense of what’s right and good.

  372. Alex Bowles says:

    Oh, with that bit about the ‘net result’ – there was no pun intended.

  373. Rick Turner says:

    I think you have to also be ready to call a troll a troll.

  374. len says:

    “To put something into circulation on the internet is very close to writing something on a park bench, it seems to me.”

    Close but not quite. Something on the internet has an identity registered on the internet by the assigned URI. As long as that URI is used to retrieve it, it is publication, pure and simple. It is when it is copied to a different location and a different URI is used to identify it and retrieve it without the authority of the original URI that it is pirated.

    Don’t conflate privacy and piracy. It feels the same because the effects are similar. Give up on a business model that relies on controlling copies per unit in favor of one where legally compliant administration of URI-labeled resources gains the maximum return in whatever currency of exchange one uses.

    Unit copy sales won’t work, and never has. The fictional accounting of sales units in the industry is legendary, otherwise there would be no “cleans”. The numbers were large enough to overlook it and the deals unbalanced enough that those without better entertainment lawyers couldn’t object without finding themselves without a deal. Only the most well-remunerated artists could object and even those (see the infamous Tom Petty episodes) did it at their own risk.

    1) There is NOT complete chaos in the market. In fact, the market adjusted nicely to digital downloads and has provided excellent technical services to support it after a few less than stellar starts.

    2) There is some chaos in the industry but that is a direct effect of not adapting to the technical inevitabilities, and instead, trying to stop these with ever more draconian means to attempt to maintain unit copy sales revenues, thus DRM, Disney and Sonny Bono. Note that mechanicals continue to function as before. Where this has hurt most (at least for those I care about) has been the songwriters and other industry members who rely on royalties derived from unit sales and airplay. The rejoinder has been “good musicians tour and if they don’t they aren’t good musicians” which as any knowledgeable person can tell one is BS, but it’s been a way to humiliate them into accepting the ‘wisdom of crowds’, itself a patina over ‘mob loots by mob rule’.

    There is no need to dress this up in morality or ‘the times they are a changin’ because well … d’oh. The fact is some have been stealing, some have been pawning and some have been victimized. It’s real and we can’t paint over that.

    One can talk about the models and means that are working and point to those. The question at the end of the day is will copyright laws and treaties be changed to adapt to the technical inevitabilities and support these models and means with a framework of law.

    So what changes to the legal framework are needed? We can go long on who gets hurt and who is hurting them, but eventually this comes down to advice to the new generation of artists as to the kinds and types of deals that are in their interest, and what proposals should music industry lobbyists be taking to Washington.

    Mashups are going to keep being a problem until their is a better definition of fair use AND the artists or other copyright holders ease the means of negotiation. There isn’t a technical cure or a legal solution that is 100% for this. There are abundant means to make it hurt less.

  375. Chris Weekly says:

    @Rick: Who is a troll? I doubt you’re calling Alex a “troll” [in the "forum flamewar" sense] given his relevant and thoughtful posts.

  376. Rick Turner says:

    No, I was referring to earlier posts from one who doesn’t believe in the value of thoughtful creativity…but who has a lot to say about how he’s protected in his career and writers and artists shouldn’t be…

  377. len says:

    “In fact, the glaring disconnect between what’s right and what’s legal is, perhaps, the best argument yet for legal reform. ”

    Or the glaring disconnect between what is done and right.

    That a human does it doesn’t make it right. That we have built an unlimited copy machine doesn’t mean distribution and recopy under a different unauditable URL isn’t wrong.

    “1) Human’s intrinsic of what’s right and good.”

    Which means law, which means lawyers, which means bills, lobbying, new deals for the current financial arrangements.

    This is not a change of culture. It is a change of business because of a change of technology. If culture changes, it is because of the change of business. That no successful business can change confidently by ignorance of culture, right people will do the right things and that is that.

    Otherwise, function for function, what has to change in the model of art production and sales? (IP is the right word, but it takes up areas of content not protected by copyright such as patents. Different owners. Different fight.)

    The web broke the old girl. How can the web build a better girl?

    Point of distribution sales work well. It is what is done after that that no longer fits the unit sales model where that model has to produce stratospheric income.

    There is truth to the claim that some will protect those numbers first. What is fair dinkum for unit sales-based royalties? Is it a number no longer collected, or is it simply a number the new girl doesn’t deliver zaftig to all the points holders anymore?

    One thing is certain, IMO: power is going to the artists where the count is auditable if they want it. They can move their deal at will …. and will. Some won’t because the current system works for them. No fault, really. The audience still picks the winner at the battle of the bands.

    The days of bad services from the labels to the artists are over. The artists will own a piece of the top based on their own ability to buy assets for production and distribution. The garage made label can thrive and survive if they have the management and the talent.

    It still takes both… and lots more to be a business. What artists have to work out is what deals work best for their lives? It is a lifestyle choice for all concerned.

  378. Jon Taplin says:

    Well at Least one country has adopted my original suggestion: The Isle of Man. (i’m not even sure its a country)
    http://www.nytimes.com/2009/01/26/business/worldbusiness/26music.html

  379. len says:

    A model and a lawsuit. This is from CNet:

    First the model: owning the engagement cycle (gotta love the rate with which they grind out these terms:

    “Video games have a perceived value in the end users’ mind. The trick is to become the facilitator of transaction-based monetization. Playfish has five games, with 40 million users playing approximately 30 minutes per day. That engagement is worth a lot in the consumer advertising world, but most advertisers haven’t caught up online yet. They spend the majority of their ad dollars on text ads and TV spots but haven’t yet figured out how best to take advantage of user engagement as part of a social fabric.

    Virtual worlds and good solutions are generally meaningful for end users, but the exclusivity of the content is what drives advertisers to pay to own the engagement cycle.”

    So pay to play or at least ads still have value, but in a way, this is simply mechanicals. It works until this happens:

    http://news.cnet.com/8301-1023_3-10150588-93.html?tag=newsLeadStoriesArea.1

    Warner Bros licenses to YouTube, then renegotiates at renewal time (a common practice in the music industry) but during the renegotiation, those who assume the license protected them have to take down their work. And they are furious because their cash cows can’t be milked during this period.

    Me, I’d say that was a risk of doing business with a mashup business model. The crowd? “It’s not fair!!” But this is how the licensing model between content providers and hosting systems such as YouTube will occasionally fall apart.

    Some content producers will have to grow up and quit relying on the ‘mob’ to support them. It makes a big splash in the news, but then the item fades and they are still paying court costs and lawyers to dig out.

    So now, is this a better outcome than a straight-up ISP tax?

  380. Rachel says:

    T-Bone, there’s an interesting article on the Google/Authors’ Guild deal here: http://www.nybooks.com/articles/22281.

  381. len says:

    There was a time when MTV ruled the music industry when it became the only radio that mattered. In the beginning, it was experimental, fast and very trendy. The fly in the ointment was that instead of being a sound medium, it was a visual medium and popular music was driven straight into the New York fashion houses. Thus the infamous Bo Diddley statement live on camera to Chrissie Hynde, “You ain’t no musician; you a model.”

    Anytime a single media outlet dominates a media type, the form of that outlet begins to shape the evolution of the content. Digitization of books will follow the path of online communications: it shreds the language. The pressure to write shorter sentences and use punchier but less evocative words is strong. You see it in the Twits and Tweets. You see it in comments such as “OMG! Put a period in that sentence”. Pop music publishing first in sheet music, then in radio formats killed the long form composition for any practical commercial uses. TV did irreparable damage to the movie structures and topics.

    If Google is the only access, expect the quick death of the novel and possibly other forms of print. Once it is on the screen, patience turns into umbrage. Add a high energy drink or two, and it becomes vitriol.

    Caveat emptor.

  382. T Bone Burnett says:

    Where did I read Steve Albini’s saying, “”The future belongs to the analog loyalists.”? Was that in this thread?

    (Len- While your points are well taken, I did not conflate piracy and privacy in that couplet. Logic is the natural enemy of poetry. And, having been in this world for forty years, I have noticed it is in chaos. I appreciate your kicking at the darkness. Perhaps it will begin to bleed daylight.)

  383. len says:

    “Logic is the natural enemy of poetry.”

    @t-bone: I wish you had been there to tell my girlfriend and her sister that when I was eighteen years old. It would have saved me a lot of angst over the years. The sister became an editor and the girlfriend, a diplomat at the State Department. World affairs and literature have been in decline ever since. :-)

    The privacy issue is really thorny particularly with the applications of behavioral analysis which cause AMEX to reduce a credit rating to a good business man when he shops thriftily, but in the hands of a witless utility worker, to install a filter that turns off the power to a 93 year old widowed war veteran alone in the middle of an ice storm and freeze him to death. They found him on the floor in four layers of clothes and blankets with icicles hanging off his coat. I can’t put my head around that without weeping. What the hell were they thinking?

    Ever write a song and when done demoing it sit and cry?

  384. T Bone Burnett says:

    Len- I am overcome with gratitude for every song [I] write.

    That story is macabre. A utility sentences a man to an excruciatingly painful death for $1,100. That story would have shorted out Victor Hugo. If the penalty for an $1,100 debt is death, what should be done about the epic and larcenous mismanagement of our financial sector?

  385. len says:

    Heads on pikes have been suggested several times. I can’t see an end to it though. The chutzpah with which they take and then demand more to fix what they stole and then they steal that, and then Pelosi blames Bush but no one seems to be trying to find out where the money has gone, well, maybe pikes are just not enough. Send them to Bay City with one month’s rent and a single utility payment.

    It was an unregulated utility so unless someone wants to pursue manslaughter, what will be done? At the very least make it a rule to pound on the door until someone answers instead of leaving a note on the door in the middle of winter, and refuse to put the filter on until we know.

    A long time ago in the middle of a heat wave one summer, my first fiance and I were walking through the neighborhood when we heard an elderly lady call out from behind a screen door. When we looked inside, we saw she was a diabetic and recent double amputee. She only wanted us to move her old floor fan closer to her wheelchair. We did that, then we called the police. An officer came and got information from her, then a church put in a window unit air conditioner. She died there some months later but not from heat stroke.

    It doesn’t take that much to care. The old man went to war and came home, outlived his wife and his last medal from this country was an icicle. I can’t get that to sit quietly. People are in a lot of trouble. A man just capped his entire family in LA because he and his wife lost their jobs. What do we have to do to get a little compassion for them while Bernie Madoff lives in luxury under house arrest, CitiBank buys a jet and the very crooks who took the money are getting performance bonuses?

    Did we get so mad at them that we forgot to look in on the old guy in the house next door? Have we made ourselves so independent that we think we have to be so rich that we’ll steal his retirement so we will never freeze to death?

    Is that America?

    I can’t get my head around it and I don’t want to.

  386. T Bone Burnett says:

    Reacting to an online swell of suspicion about changes to Facebook’s terms of service, the company’s chief executive moved to reassure users on Monday that the users, not the Web site, “own and control their information.”

    http://www.nytimes.com/2009/02/17/technology/internet/17facebook.html?hp

  387. len says:

    On the face of it, it is a problem of deleted associated records. It is a common problem of building with relational systems but solvable.

    Still as the commenter notes, they are reserving the right to do with the information as they please for as long as they please. So it’s dubious what ‘ownership of information’ means where resources are offered for ‘free’. We’ve known this was a problem since the web was first promoted.

    It would be interesting to compare the Terms and Conditions to MySpace where many bands are now hosting their mp3s and promoting themselves.

  388. len says:

    Yep.

    All of these topics have come up on technical lists such as XML-Dev for over a decade now including the paternity issue and the unusually high number of cuckholds. That one was not a shocker. After proving to a friend that his unpublished phone number was worthless by locating someone I hadn’t seen in a decade in minutes (this was before social networks became the rage) I summarized there with the terse, “Databases leak.”

    The web technologists are remarkably consistent. First they deny it is a problem, then they say it is only a problem because society is a problem, then they claim that open information promotes freedom, then that is is illegal and a symptom of sickness to withhold information from the commons, and so on. Only Money Matters.

    As I’ve said: the web is a viral pathogen weakening the bonds of society while restructuring it. If people don’t know that there is a dark side to the Interregnum by now, God help them.

    See Lemmings.

  389. Alex Bowles says:

    Len,

    Hyman Rickover (who, if I remember correctly, is somebody you don’t approve of) noted that

    At any moment during a twenty-four-hour day, only one-third of the people in the world are asleep. The other two-thirds are awake and creating problems.

    So there will always be dark sides.

    On very different note, consider this excellent TED talk, from Elizabeth Gilbert. By way of an excellent story about Tom Waits and his creative process, she points out (indirectly) how the inspired nature of creativity is very removed from the law that protects it.

    She never mentions copyright, per se, but it’s interesting to note how essential the audience’s reaction is to the truly inspired work, and for whose benefit such work really exists.

    Given the nature of an artist’s work, it also makes a good case for a purely social construct to ensure that they are able to survive when doing work that simply doesn’t resolve itself into billable hours.

  390. len says:

    No, it was an educator objecting to the way Rickover inserted his militarism into education. I’ve no bone to pick with Rickover. I was six years old at the time.

    As to her speech, I sympathize but I have to go toss feed into the genius pen out back so I can steal their eggs while they are fighting over it. The secret is a starvation diet, aka, 80% free feeding weight.

    One of the worst things that can happen to an artist with a hit is to be asked to analyse their success. At that point, they become characaturists.

    Some believe communalism makes us kinder and gentler. Nothing could be further from the reality of that kind of social construct. It makes us paranoid, defensive and dull. The one aspect of life under communist governments that almost everyone agreed on was how boring it was.

    Boring art is a bad brew.

    I don’t compose for the audience. I’ve no way to know who they are en masse. I compose for the event or the girl. ;-)

  391. len says:

    From Facebook page today:

    “Over the past few days, we have received a lot of feedback about the new terms we posted two weeks ago. Because of this response, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised. For more information, visit the Facebook Blog.

    If you want to share your thoughts on what should be in the new terms, check out our group Facebook Bill of Rights and Responsibilities.”

    Yelling works.

  392. Alex Bowles says:

    Here’s another angle on the subject. It’s not taken directly from the culture trade, but from one that has attempted to use patent law to suddenly regulate and reshape patterns of human activity that have taken millennia to develop.

    This link is to the homepage for Monsanto in India. The (tiny) video clip there covers the benefits of the kind of modern practices that Monsanto supplies.

    It may just have been me, but I heard, in its pitch, a veiled threat – as though this were a fundamentally brutal organization that had learned to speak softly, but wasn’t afraid to use scare tactics to drive home its point.

    The second clip, which is about desperate Indian farmers committing suicide by drinking Monsanto pesticides as a final hugely symbolic protest against the ‘contributions’ this organization has made to their lives.

    The subtext from the first clip seems not to have been purely imagined.

    But what’s really interesting to note the central role of patents in this, and the question raised about what natural limits can be placed on the application of law.

    Like copying (which is really the basis of nearly all learning) it seems that there are fundamental human practices which the law cannot ever be used to frustrate. Outlawing the selection and gathering of seeds for use the following season because it violates patent law seems to be a prime example.

    It would be good to see copyright law that explicitly recognizes the fundamental human right to copy, and treats it with the same sanctity as the freedom of speech and of conscience.

    How that right is handled in a society that also derives significant benefit from restricting the right to copy is a topic for debate. But the law can’t hope to be effective if it fails to even acknowledge what people instinctively feel to be within their rights.

    More food, so to speak, for thought.

  393. len says:

    Hiding this here because it doesn’t have another room to go in…

    I guess it’s funny to talk about the hippie magic this many years later, but it was about giving a damm without force. It meant calling on better angels because there was a deeply spiritual part of the movement. That spirit is moving on to our kids and we ought to be happy about that.

    No one really tells the story well and perhaps there isn’t one story to tell but a story well told often is told by one set of eyes.

    To the hard hitting pros: Do the Pete Seeger biopic. Mighty Wind is funny, Johnny and June is the love story, and so on.

    Pete Seeger is the one set of eyes that has seen the entire span of American popular folk music. He was a power in shaping that and he did without an army, or if an army, an army of people who gave a damm: folkies.

    I’m just a fair witness. But … if the Powers here from the West Coast worked with the Powers in New England, between the hippies that know how, I think you could create a sublime and lasting work that saves our message for the ones who follow. Our kids and their kids.

    Just a thought.

  394. Rick Turner says:

    Pete at age 2:

    http://www.shorpy.com/node/5689

    also check out the wonderful work of my ex-wife, Jessica at http://www.guitarsintheclassroom.org

  395. len says:

    Thanks Rick! Excellent resources!

  396. len says:

    http://www.seeger90.com/

    Boy howdy, I’d love to go to this one.

  397. Alex Bowles says:

    Here’s an idea: draw a bright and shining line between the 20th and 21st Centuries by limiting copyright law to the governance of physical copies (i.e. production and distribution).

    That’s what it was designed for, that’s what it provided for, and that’s what it should be limited to. For content that lives and evolves in disembodied digital streams, we need something entirely new, and native to that medium.

    What this law will look like is still uncertain, but the social norms that have already developed provide some indication. Sharing and remixing files is okay. Plagiarism or distortions of credit are vehemently not okay.

    What is certain is that existing copyright law is almost perfectly unacceptable, developed, as it was, around the realities of capital-intensive analog production for distribution on segregated, privately owned, and tightly controlled platforms .

    And because physical media is very unlikely to disappear completely, the need for these laws is alive and well. We don’t need reform. We need something fresh.

    After all, the present trouble comes from assuming that content and container are always one and the same. They’re not. And laws that only assume the existence of containers in a world that’s becoming profoundly uncontained are a terrible way to govern content in that world.

    Of course, developing appropriate law will demand further evolution in the concept of property itself. In the same way that we developed the concept of Intellectual Property as being distinct from tangible goods (along with a distinct set of laws to match) we need to recognize disembodied datastreams as having their own set of internal rules.

    The purpose of Property (as a concept) remains the same – advancing the economic benefit of society as a whole, while providing just recompense to the members of society who create the value enjoyed.

    Now, it needs to be adapted to meet these ends in a manner that reconciles – in law – the realities of the medium, the emerging social norms, and the principles of the US Constitution.

    Of course, the medium extends beyond the nation’s borders. But so does the idea that ‘all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness’, and that, above all, these truths are self-evident – not simply to Americans, but to humans everywhere.

    Simply making that declaration is soft power writ large. It’s what we did first, and it’s what we can still do best. Successfully separating physical copyright law from the governance of content in general is a great way to put those principles into action.

  398. len says:

    Actually Alex, I think we can adjust fair use provisions and make this work without wholesale replacement. There are plenty of technical solutions. It is really a question of precisely what we are trying to achieve.

    The YouTube video I put up as I told Armand I would is to make a point: this kind of thing is only possible if we can use the digital archives. It takes hundreds of eyes over decades to create that one video. Would I want to give all credits for all of those images? Of course but finding those and getting the agreements is an operational burden the solo artist can’t handle. So to have the expressive power to bring human memory, the real juju to that song, I need to be able to use those images fairly. IOW, if society wants and needs the artist to reflect society, it must make the human memory available to us. The images in the song are real. They are what the search engine reveals when asked certain questions on certain topics. That is why it works. It is authentic.

    I have a concept of the fair witness provision that extends fair use. It essentially is that as long as a copied image or song or whatever is not used in any way that is injurious to the expression of the author, the assumption of law is that it is fair use. Just as copyright has to be enforced by the author/owner, an image owner, song owner, etc., only has to register the protest that this is not fair use. The only difference in what is policy for the services is now is in the definition of what is fair. For me, it comes down to the fair witness decision: an author is bound to fair presentation, or as it says, to reveal all they see. They should not use the material to beg an argument not intended. This is weak but I think it needs to be to maximize expressiveness.

  399. len says:

    Something to chew: when Google/YouTube displays a video, below it there is a strip of ostensibly related videos. They might be by artist after the first selection, but the first row presented is the indexing engine’s choice of choices. My new video has been up less than three days. When I checked that index selector, in the first row were five anti-war songs including three new ones and Edwin Starr’s War. The engine is using not just the video, but also the text around it. The thought surrounding the thought acts as a metadata vector pushing these videos toward each other like balls on springs connected at the ends.

    The selection is topical and emotionally consistent. And the *computer* chose that. It is a playlist as consistent as many people would select except it has millions of choices to choose from before it presents a choice of choices. This is a second order effect. It is emergent.

    Emergent choice is a hallmark of thought. Deep breath….

    Might be time to get out the preemergence bottle and spread it around those tubers.

  400. Anders says:

    Skynet likes your video? :o)

  401. len says:

    No but Colossus, the Forbin Project sent me a link to more photos. :-)

  402. len says:

    Music Tribe:

    I’ve completed the scene in Facebook/Vivaty integrating the videos, music other materials:

    1. Smooth. Easy Drag Drop and Go.
    2. Integration: fast dialog building for pulling in YouTube, Facebook, and externally hosted audio
    3. Time to setup: about eight hours total.
    4. Results: excellent.

    Bands on Facebook who don’t build one of these for their act and business quick need cranial exams. This is the way to get it done in social network markets.

    As the stagecraft objects improve, this will also be how albums are made, released and navigated. In fact, these become the albums++.

    Big juju, musicTribe. Bery big.

    Media convergence at long last!!!

  403. Alex Bowles says:

    And several months later, the RIAA concedes almost concedes the foregone conclusion.

    Cultural relevancy has not been their thing for some time. Amazing to see them still hedging at this point.

    But onward, right?

  404. len says:

    Indubitably.

    This is succinct: ” All DRM has ever done is annoy consumers who actually paid for their music.”

    Yes. DRM is a gig where you get to slap each patron as they pay the cover. They will quit coming.

  405. Analisa says:

    You don’t have to watch what they eat some more than others, whether you have type 1 or type 2 diabetes with exercise and dieting kids.

  406. Dress up games are very popular kind of free girl games that is on the Internet
    today. The banner ads can be used on forums, blogs, or any other websites.
    If you like to play sims game, this is your chance to enjoy an online virtual world like no other.

    my weblog imvu free credits kostenlos

  407. Thank you for yet another amazing article. The best place else might just any one get that kind of information in such a fantastic way of producing? For sale demonstration pursuing weeks time, and I am in the search for such information.

  408. Stephania says:

    Terrific article! This is the type of information that are supposed to be shared across the
    web. Disgrace on the search engines for now not positioning this publish upper!
    Come on over and talk over with my web site . Thanks =)

Leave a Reply