Here’s a recap of what went on here at Creative Deconstruction and in the music industry over the past couple of weeks. Make sure to check out anything you might have missed and leave your comments. Know something we don’t? Submit a story.

Most Popular:

• Why music still needs the underground – Digital distribution has caused musical innovation to hit the mainstream faster than ever. What does this mean for the underground?
• Copyright and artists – do great artists steal? - In light of the Coldplay vs. Satriani settlement we ask the question: is it ever ok to copy another piece of music? Where is the line?

This Week:

• New Forrester Report Presents ‘Music Product Manifesto’ - Mark Mulligan of the Forrester Research Group offers his ideas on a possible future for music products.
• New Music Releases – October 6, 2009 – Built to Spill, Mission of Burma, The Raveonette’s, Sufjan Stevens and the Xx’s.
• New Music Seminar Chicago – “Everything You Know Is Wrong” – My summary and review of an important conference.
  
• 1,000 True Fans and the Importance of Milestones in Your Music Career - Revisiting Kevin Kelly’s now famous 1,000 True Fans concept.
• Targeting and Converting Potential Fans – If 1,000 True Fans is your goal, where do you begin?
• Review: Does Spotify Live Up to the Hype? - Spotify prepares to hit the states in a whirlwind of buzz. How does it stack up?
• EMI Drops Lawsuit, Licenses Entire Catalogue to Grooveshark – The story of EMI vs. Grooveshark takes an unexpected turn.
• Think Outside the Venue To Get That First Gig – Sometimes if the gatekeepers won’t let you through you just need to find a way to go around.
• No Royalties for Ringtone ‘Performances’ – A ridiculous lawsuit meets a swift end.

This Week in Music History:

The Quarrymen

1957 – Paul McCartney made his first appearance with The Quarry Men at New Clubmoor Hall, Norris Green, Liverpool. The line-up for The Quarry Men was John Lennon, Paul McCartney, Eric Griffiths, Colin Hanton, and Len Garry. Paul played John some songs that he has composed which Lennon contributes, marking the birth of the Lennon & McCartney songwriting partnership. (This Day in Music.com)

There are two big stories in the news today related to intellectual property and music royalties. The first, which I will save for a separate post, is the passing of the Performance Rights Act by the Senate Judiciary Committee. I’ve written about the PRA before, but there have been some new developments since then and I think it’s worth revisiting.

The second big story is the rejection of one of the most bogus lawsuits of the past year (and that is saying a lot.) Back in June royalty collection society ASCAP sued mobile carrier AT&T for violating their copyrights. ASCAP argued that they should be paid a royalty each time a musical ringtone plays because it constitutes a ‘public performance.’ AT&T pointed out that they already pay a royalty each time a ringtone is downloaded. Yet ASCAP believed that there should be another royalty on top of that to cover instances where these same ringtones might be overheard in a crowded restaurant, or perhaps on the subway.

There would have been huge implications if ASCAP had gotten its way – not just for AT&T and other mobile carriers, but for consumers as well. Essentially what ASCAP is saying here is that anytime anyone place any kind of music – even if it isn’t for commercial or financial gain – they are infringing on the composers’ copyrights. Imagine living in a world where you couldn’t roll down your car windows for fear that someone in the next car might overhear the music you’re playing. That’s exactly the kind of environment ASCAP appears to be trying to create.

Fortunately, the judge overseeing the case soundly rejected the claims, ruling that “when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly.” In other words, you can take your phone off vibrate again.

This case is only one of many in recent months where ASCAP and BMI have attempted to double-dip on royalties. In July, ASCAP started sending collection letters to sites who had embedded YouTube videos that contained music. The problem is, YouTube already pays royalties on video plays even if that video is embedded on another site. And in September, ASCAP and BMI decided that they should be paid royalties for the 30 second previews offered by download sites like iTunes and Amazon.

Yes, it is ASCAP’s job to look out for it’s members, the composers and publishers. But is this really the way to go about it? What do you think?

Original cellphone sketch by makiko.

Grooveshark inks licensing deal with EMI

You might remember a while back that EMI filed a copyright infringement lawsuit against music streaming service Grooveshark. Well, in an interesting twist on that story it looks like EMI has not only dropped the lawsuit, it has now licensed it’s entire catalogue to Grooveshark in the US.

This is the first major label to jump on board with the service, which is a direct competitor to the European-based Spotify (which has been talked about quite a bit around here lately.) The two company’s are in a race to secure licensing for both major and independent record labels in the United States.

Like Spotify, Grooveshark is an ad-supported music streaming service. Basic accounts are free, and users can opt to pay $3/month to upgrade to an ad-free premium account.

I would have loved to sit in on the EMI/Grooveshark meetings. It isn’t everyday that you get to read about such a dramatic shift in the approach of a company with the size and influence of EMI.

Grooveshark ran into copyright infringement issues with the record label due to the six million or so tracks that have been uploaded by their users. Many of those tracks were unlicensed. Until now, Grooveshark’s policy has been to react to unlicensed tracks as they are notified of them by the copyright holder.

Apparently EMI has realized the potential of on-demand music streaming services like Grooveshark and Spotify, and have decided to capitalize on the opportunities they present rather than attempt to legislate them out of existence.

“We think services like Grooveshark offer great music discovery options for fans,” said Mark Piibe of EMI Music. “In turn, Grooveshark offers a new revenue stream for our artists and will help us learn more about how we can better connect different types of fans with artists.”

These new revenue streams are becoming increasingly important as album sales continue to decline and single track downloads struggle to make up lost profits. Streaming royalties aren’t likely to come close to matching the kind of revenue the labels have enjoyed with the CD. However, there is no denying that at least for now these services represent the way that many listeners want to get their music. For that reason I think EMI has made a prudent decision here.

Things are heating up in the on-demand music streaming market. Grooveshark still has three major labels and a host of independents and aggregators to ink deals with before it can call it’s catalogue comprehensive. Spotify has more money and more buzz on its side, but is now under quite a bit of pressure to catch up in the licensing department. This will be an interesting one to watch.

Thanks to Dion Roy for the tip-off.

Related posts:

1. Music and Tech Recap – April 2010 Edition

Last year guitar virtuoso Joe Satriani filed a lawsuit against Coldplay alleging that ‘Viva La Vida’ contained “substantial, original portions” of a track he put out in 2004 called ‘If I Could Fly.’

Coldplay responded by saying that if the two songs were similar it was purely coincidental. Dozens of video mashups, music theory analyses, and editorials followed. The two songs were revealed to be quite similar indeed – virtually the same melody and chord progression, though in different keys, and with different arrangements and song structure.

The world will likely never know if Chris Martin and Co. did consciously rip off Satriani’s work. The two parties settle out of court last week, and as part of the terms Coldplay will have no obligation to admit wrongdoing.

Members of Coldplay have talked about their philosophy on ‘borrowing’ from other artists’ work in the past, however. “We’re definitely good, but I don’t think you can say we’re that original,” Christ Martin admitted in an interview with Rolling Stone. “I regard us as being incredibly good plagiarists.” In another article guitarist Johnny Buckland notes that the song ‘Fix You’ is a close copy of Elbow’s ‘Grace Under Pressure.’ “We’ve never so directly stolen off anyone before,” he said. “We’ve never paid for our plagiarism.”

For some, that kind of honesty probably comes as a bit of a shock. Especially when the band in question is so high-profile. Shocking that they did it in the first place, and even more shocking that they talked about it. Doesn’t artistic integrity forbid that kind of blatant plagiarism?

Art vs. Law

I was curious to find out what other musicians thought about the practice of using pieces of other peoples’ songs, so I posed the question to a few people on Twitter. Most of the participants in my unscientific survey said that they often borrow a chord progression or groove, but that they rarely, or never lift a melody or lyric. Everyone seemed to agree that subconscious copying was nearly unavoidable.

During the course of the discussion one individual said that while she considered any intentional copying to be unacceptable, she had no problem borrowing from works in the public domain. This turned out to be a common philosophy.

This was a very telling statement! It reveals that artists’ reasons for not copying other artists is not primarily a matter of artistic integrity, but rather a matter of legal integrity. Think about that for a moment – we have no problem absorbing pieces of other people’s creative works into our own, as long as no law prohibits it.

Two possible conclusions could be drawn from this:

1. Most artists lack integrity, because the only thing preventing them from stealing is the law.
2. Building on the works that have come before is a natural part of artistic expression, but the law is artificially restrictive.

So which is it? Is ‘plagarism’ wrong because it goes against the principles of artistic expression, or is it wrong because the law has made it wrong? To put it another way: if copyright law was removed would it still be wrong to copy?

History of Plagiarism

History may have some insight into this philosophical dilemma (as it often does, oddly enough…) First, let’s go way back to the Homeric epics The Iliad and The Odyssey. Who wrote those tales? Homer, obviously. Yet, most modern scholars believe that Homer was not a literal individual, but rather the sum of centuries of oral tradition that produced these two great works. In other words, two of the world’s most beloved pieces of literature were created through a process of iterative plagiarism that lasted hundreds of years.

Pablo Picasso – a decent authority on art – is also famously quoted as saying, “Good artists borrow, great artists steal.” Poet T.S. Elliot later altered the phrase a bit for his own purposes, but we’ll get to that in a minute.

The practice of one artist ‘borrowing’ from another is clearly not new. It also appears that at least a few notable creative figures were ok with it.

Creating in the Void

When I was younger and just beginning to devote time to writing music seriously, I used to think that in order to write something original I had to sequester myself in my room until the song I was working on was finished. I refused to listen to music, watch movies, read books – I was determined to create a sterile environment in which my masterpiece could remain pure.

And you know what? Every song I wrote still managed to sound just like Pedro the Lion – my favorite band at the time. You can’t escape outside influences. And why would you want to? When did sterility ever produce anything?

Every artist borrows both consciously and subconsciously from the artists that came before them. We take what someone else created and we add, subtract and manipulate it until it is transformed into something greater than the sum of its parts. That’s not a bad thing. It’s essential to the progress of artistic expression!

Transformative Works

Which brings us back to T.S. Elliot. When the poet Elliot quoted Picasso it was in the context of a review he was writing about playwright Philip Massinger. Massinger apparently had the tendency to borrow a bit too freely from one of his contemporaries – William Shakespeare. Here’s what Elliot wrote:

One of the surest tests [of the superiority or inferiority of a poet] is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different than that from which it is torn; the bad poet throws it into something which has no cohesion.

The key to the legitimate reuse of creative works is not in what you take or how much, but in the end result. The end justifies the means, in this case. The law calls this end result a ‘transformative work.’

If you can take something that someone else has created and through your own creativity make it better, or give it new meaning, or a new kind of beauty or value, then what reason could there possibly be not to do it? Fear of a smeared reputation? Fear of legal action? If what you create is truly transformative that shouldn’t be an issue.

The bottom line is that art is collaborative. The artists who embrace this fact and treat it as a powerful resource create great art.

What do you think? Do you agree or am I way off base? Looking forward to your comments. Those who don’t probably end up sounding a whole lot like their favorite band anyway.

The Senate judiciary hearing on performance rights and parity was held yesterday on capitol hill to discuss the controversial Performance Rights Act. If you are unfamiliar with the bill you should know that it carries significant implications for the music industry. If this bill passes, terrestrial radio will be required to pay royalties to the performers of the songs they play, in addition to composers.

If you’ve been around the blog a while you might remember an article I wrote a few months ago dismantling what I considered to be five key flaws in the proposed legislation. At the risk of sounding self-important I suggest that you read that article if you haven’t already. The bill and my opinion of it have both evolved since then, but I still consider those 5 points to be critical. Particulary if you are an artist, because while it’s natural to instinctively support a bill that promises to increase your income it is still important to check the facts.

As I mentioned above, some key amendments have been made since the Performance Rights Act was introduced. They establish a sliding fee scale to address the concerns of smaller and minority broadcasters’ ability to afford new royalties. Here’s a concise summary of how that breaks down courtesy of Variety:

• Royalty rates for stations that have annual gross revenues of $1.25 million or more would be established by the Copyright Royalty Board if broadcasters and performers are unable to negotiate rates on their own.
• Commercial stations that gross less than $100,000 per year will pay a $500 annual fee.
• Commercial stations that gross more than $100,000 and less than $500,000 pay a $2,500 annual fee.
• Commercial stations that gross more than $500,000 and less than $1.25 million will pay a $5,000 annual fee.
• Public, nonprofit religious and college music stations that gross less than $100,000 will pay a $500 annual fee. Those above $100,000 will pay a $1,000 fee.

None of the royalties will take effect for at least a year. For stations that gross less than $5 million per year, no royalties will be due for three years. For those above that figure, none would be due for another 12 months.

While these amendments don’t address many of my concerns, they are a big step in the right direction. I have no love for ClearChannel, but I don’t want to see local and volunteer radio pushed out of business by crippling rates. I still haven’t found anything that addresses the heavy record keeping burden that will be imposed on these small stations, however, and I know that is a big concern for many of them.

One important item in the above amendments is that royalty rates for the highest earning stations “would be established by the Copyright Royalty Board if broadcasters and performers are unable to negotiate rates of their own.” The creative industries – particularly music – rely far to heavily on government legislation in my opinion. This is supposed to be a free market. Rates and fees should be determined through a process of negotiation between buyer and seller, not by government.

That’s why the issue of payola throws such a wrench in the idea of record companies requiring additional fees from broadcasters. The market – in spite of government legislation – determined that air-time was worth paying for, not the other way around. Record companies were so determined to get their acts on the air that they were willing to throw down significant bribes to get it. The practice of payola continued until at least 2005 when Sony BMG was found guilty of buying airplay despite laws forbidding it.

Unfortunately, the National Association of Broadcasters (NAB) has to date been unwilling to participate in negotiations. As infuriating as this is it does make sense – they don’t want this bill to pass at all. Either way, they may not be able to hold that position much longer. During the hearing yesterday Senator Patrick Leahy said this to the broadcasters present: ”Legislation will move, and I suggest that you talk to the artists because I would want the legislation to be in the interest of both the broadcasters and artists.” In other words, start negotiating.

Whether or not Senator Leahy’s predictions are accurate remain to be seen. Before the hearing even took place a group of 22 lawmakers requested that the vote on the PRA be delayed ”until such time as the impact of this legislation can be fully examined.” It is at least encouraging to see that some lawmakers realize that this bill will have major implications and needs to be considered carefully.

What makes music valuable? And who is it valuable to?

I recently had a discussion with a musician who is convinced that new business models – specifically those involving free or open licenses, such as Creative Commons – “devalue music.” The spirit behind his position is simple: the less control he has over the tracks he releases the less revenue he will be able to extract from them.

Unfortunately, this line of reasoning is backwards for a variety of reasons. The biggest issue – aside from its cynical, borderline anti-fan sentiment – is that it’s based on the idea that profitability creates value, rather than the other way around. When a product becomes less profitable it has therefore become less valuable.

Yet, that’s not how it works. A product becomes less profitable because it has lost value. To over simplify it a bit – value determines profitability, and profitability is the result of value.

Of course, backwards logic inevitably produces backwards business models. In an effort to squeeze every last penny out of each track they release the lock it down with restrictions – stringent copyright laws, DRM, etc. They do whatever they can to ensure that no one is able to engage with the tracks in any way without the industry being compensated for it. This leads consumers to look for other ways of getting their music – ways that will allow them to use it how they want. Isn’t that why you bother to own something in the first place?

So is my musician friend accurate in his assertion that open licenses such as Creative Commons really “devalue music?” No – in fact, for many fans the freedom to share, remix, mash-up and engage with music only makes that music more valuable to them. Restrictions are what drains music of its worth. As a music lover, which would you rather own – tracks hindered by DRM, or open for you to use as you please? Pretty clear choice, right? Yet the record companies – as well as many artists – continue to ignore this reality.

Obviously, there is a big disparity between what is valuable to listeners and what’s perceived as valuable to the industry. It has gotten so bad that the industry actually believes that if they give the consumers what they want it will destroy their profitability. This is not a sustainable way to do business. It’s the consumer who ultimately determines value. Until the industry can learn to reconcile listener value and commercial value we’ll continue to be stuck right where we are today – battered by declining sales, declining consumer interest, and unwilling to walk the paths that will lead us back to stability.

Artists and the record companies need to make money – no one is suggesting otherwise. Yet, attempting to drive profits by decreasing value is nothing but a great way to ensure that even those profits you do find will eventually dry up. On the other hand, if you offer listeners something that they actually want, they will pay for it.

New business models are risky. Giving up control to the consumer is hard to do. Yet, some risk is necessary for real progress to be made. A changing marketplace should fuel innovation, not self-preservationism.

Recorded music – aside from being a powerful art form – can be an incredible promotional tool. Now that recorded music as a product is declining in value, its role has transitioned even more toward the promotion of other revenue such as live performances, merchandise, licensing, etc.

Unfortunately, traditional copyright law has not quite caught up with the way music is used today. I certainly don’t recommend abandoning copyright outright, but there are other options that can make a lot more sense for bands attempting to adopt innovative business models. Creative Commons licensing is perhaps the most significant of those options, supplementing traditional copyright and providing more flexibility in how the work can be engaged with and distributed. The question is how can Creative Commons fit into your business model?

I’ve tried to create a basic guide should help bands and musicians decide which of the six Creative Commons license works best with their business model. It’s not a one-size-fits-all thing, and a lot of thought needs to go into what you want to sell and how you plan to create revenue.

1. Attribution Non-Commercial No Derivatives

Here’s the description found on the Creative Commons website:

This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially.

This is the closest thing to conventional copyright licensing that Creative Commons offers. Under this license, your fans will be able to share and download your music freely, but that’s where the ‘free’ stops. Fans are not able to create remixes, fan videos, mash-ups, covers, etc. without your permission.

In the above excerpt from the CC website you’ll see that this option has been dubbed the ‘free advertising’ license, but I think that in licensing your music this way you are actually limiting its potential promotional value. Don’t underestimate the power of fan created content. A good remix or mash-up can expose your work to listeners that might not be familiar with your work, or who would not normally be interested in your genre or style. For example, if your track is combined with another artist’s their fans will likely want to check out the original and you have potential to gain a new fan.

Remember: greater control over the licensing of your music does not translate directly into more revenue. Derivative works themselves may not earn licensing revenue, but if permission and a fee are required many fans will simply not bother working with your content in the first place, and the promotion potential will be diminished. It’s up to the individual artist to determine whether this is a trade off that makes sense for their model.

2. Attribution Non-Commercial Share Alike

This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature.

If I had to weigh in with my personal favorite this would be my pick. This form of licensing factors easily into a larger business strategy in that it provides for both high promotional potential (fans are allowed to create and distribute derivative works) as well as direct revenue sources. The ‘Non-Commercial’ provision requires permission to be obtained if your music is to be used commercially, which means that you have the opportunity to earn fees or royalties. ‘Share Alike’ requires that all derivative works must be licensed the same way which perpetuates the free use of your music and at the same time ensures that no one will use it to get paid without you getting a piece of the action.

3. Attribution Non-Commercial

This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

This is similar to the last option, minus ‘Share Alike.’ This means that those who remix your material are able to attach a more restrictive license to that content, and may therefore restrict how widely your content and its derivative works are distributed (and therefore promoted.) 

4. Attribution No Derivatives

This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

Before considering this option or the two that follow, you had better have a strong revenue plan that does not rely on generating any profit from your music itself. No licensing fees, no royalties, no record sales, etc. You are giving film, TV, radio, blogs, and whoever else the liberty to share your music wherever they want and even to charge for it – and you wouldn’t be entitled to a dime. That isn’t to say that you couldn’t try to any of these types of payment, just that no one is likely to give it to you because they wouldn’t have to!

Re-mixes, mash-ups, fan videos, etc. would not be allowed, however. You might choose this option if you have plenty of revenue potential from other aspects of your business, but are concerned with keeping the integrity of your work intact. If someone is uploading your song, you can be confident it will be the entire song. This limits others’ ability to misrepresent you or your music, which may be important to some.

5. Attribution Share Alike

This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.

Under this license others are able to do just about whatever they want with your music, except restrict it. This is basically a safeguard that no matter what is created by modifying your original content it will be completely free and available to all.

6. Attribution

This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution.

Not much to add here. No restrictions, other than making sure that you are credited for the original content.

Your Model

Creative Commons can be a great alternative to conventional copyright, provided that you have a clear strategy in place. Hopefully this guide will be helpful as you try to figure that out. Let me know your feedback. What are your thoughts on the different licensing options? Are you already utilizing CC for your music? What has your experience been?

Here’s a recap of what went on in the music industry this week. Make sure to check out anything you might have missed and leave your comments. Know something we don’t? Submit a story.

Most Popular:

Why Free Music was Inevitable - An introductory explanation of the economics behind free music.

Resurgence of Vinyl Could be Just What the Industry Needs - Why vinyl is the perfect compliment to digital music.

This Week:

Sufjan Stevens Gives Copyright to Fan Who Won’t Copy - Another innovative idea from an innovative artist. What would you do with exclusive rights to your favorite artist’s new song?

MySpace Lays Off 30% of Employees - Is the writing on the wall for the the once dominant social networking platform?

5 Reasons Why the Performance Rights Act is a Bad Idea – The latest RIAA money-grab could have significant consequences on both the broadcasting industry, and the music industry as a whole.

Creative Culture and the Growing Copyright Extremism - How the recording industry is destroying fair use.

Music Video Picks:

Phoenix – ‘1901′

White Rabbits – ‘Percussion Gun’

Carina Round – ‘Backseat’

This Week in Music History:

1965, Bob Dylan recorded what would be his first ‘electric’ hit, ‘Like A Rolling Stone’ which peaked at No.2 in the US and No.4 on the UK singles chart. (From Thisdayinmusic.com)

Related posts:

1. The Broken System: Deconstructing Music Consumption

Creative culture is on the rise, thanks largely to recent technology. Anybody can shoot a video or record a song and upload it to YouTube and millions of people might see it. Digital technology has put the arts back into the hands of the people.

Copyright lawyer and chairman of Creative Commons Larry Lessig gave a presentation about a year and a half ago in which he talks about the way that the younger generation’s perception of creativity and copyright has changed since their parents’. This generation has the tools and the desire to remix, mash-up and recreate the music they hear and the videos they watch and turn them into something new. The way they appreciate art is by engaging with it and making it their own.

Lessig suggests that the law has not greeted “this new use of culture using digital technologies” with much common sense. Common sense would have been to realize that times have changed, that digital technology has fundamentally altered the way that consumers and creators alike are able to produce, enjoy and interact with art. Common sense would have been for entities like the RIAA to acknowledge that fact and adapt business practices to be remain competitive in the emerging market.

Of course, that’s not what happened. Instead, “the architecture of copyright law and the architecture digital technologies as they interact have produced the presumptionthat these activities are illegal.” Lessig continues, “because if copyright law at it’s core regulates something called ‘copies’ than in the digital world the one fact we can’t escape is that every single use of digital technology produces a copy. Every single use therefore requires permission. Without permission you are a trespasser.”

So this presumption that remixes, mash-ups, videos or any other fan created content that uses copyrighted material are illegal has made nearly an entire generation guilty of breaking the law. I love it that he uses the word presumption – this is one of the foremost lawyers on copyright saying that what the RIAA believes about copyright law is not correct.

The RIAA has seen the internet and digital technology as a threat to their business, and responded by taking an extreme position regarding copyright law. This exaggerated version of copyright all but ignores the concept of fair-use and considers – wrongly – that every use of copyrighted material is illegal.

So they crack down, launching a huge legal offensive against just about everybody, including individual consumers suspected of violating their interpretation of copyright law. This in turn creates a growing backlash – both among those whose genuinely illegal activities were thwarted, and those whose legitimate fair-use was wrongly lumped together with piracy. Now the world is experiencing a “growing copyright abolitionism” says Lessig, “a generation that rejects the very notion of what copyright is supposed to do … and believes that the law is nothing more than an ass to be ignored and to be fought at every opportunity possible. The extremism on one side begets extremism on the other – a fact we should have learned many, many times over.”

You and I can’t control the RIAA. They have proven that they are out of touch with today’s digital culture and determined to snuff out any innovation that smells like it might disrupt the traditional models. We can influence the other side of the table, though.

Artists don’t have to get in bed with the RIAA. The new independent, DIY approach to a career in music is not just a pipe dream anymore – there are plenty of success stories to look to now. In this new marketplace the artists who recognize the value of openness will be the ones who succeed. The ones who see the benefit of allowing their fans to remix their tracks, or to produce amateur videos for their songs and spread them across the Internet.

Regardless of what we have been taught to believe recently, there is such a thing as fair use, and it’s in the artist’s best interests to allow it. Release your music under a more open license such as Creative Commons and see what happens. Let your fans do the promoting – if you give them a quality product and the freedom to use it the way they want use it they’ll do a surprisingly good job. Better than you could ever do, maybe even with a big-label marketing budget that only the top acts see anyway.

Thanks to Eugenia for the video.

The RIAA is not going to be happy about the newest evolution of file-sharing technology.

BitBlinder is a free new service that claims to hide users’ IP addresses, allowing them to
use BitTorrent anonymously. There is only one reason for this, of course, and that is to
hide illegal activity from the authorities. In the words of one of its creators, “We want to
make online anonymity fast, usable and ubiquitous to the point that organisations give up
on spying and filtering us.”

In my mind, anonymous file-sharing has been an inevitability since the RIAA began demanding large sums of money from thousands of individuals under the threat of legal action. It’s a simple escalation principle – if the cops have handguns, the crooks get machine guns and around and around we go.

Many rights-holders and lobbyist groups want to fight file-sharing for a variety of reasons. Some of those reasons are legitimate and others are based on false assumptions. I don’t want to get too deep into that discussion right now, in part because it may be irrelevant anyway. Does the RIAA honestly think it can out-gun the filesharing community? Even more to the point – should it want to?

In a recent article I talked about the different factors that have driven the value of recorded music down to just about zero. File-sharing – although it is widely heralded by groups like the RIAA as the destroyer of music – was not on the list. Why? Because I don’t believe that file-sharing is a cause of the devaluation of recorded music so much as a byproduct of that devaluation. Digital technology has made it possible to generate nearly infinite copies of the files that now contain most of the worlds recorded music. If you can look at it objectively, that sounds a whole lot like progress.

In many ways, Filesharing simply utilizes the infinite copy-ability of digital technology to its full potential. Does that make it right? Well, under our current copyright system no, it doesn’t. Just because you can do something doesn’t mean it’s legal. Yet it does bring up some interesting questions about progress vs. established systems.

At what point do we let go of the old and make room for new systems which are better equipped to handle today’s market realities?