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The Right Balance on Copying

copy.jpgThis post is in part motivated by the fact that “Google’s YouTube just annihilated Viacom in federal court,” but I’ve been meaning to link to this piece by Christina Mulligan which explains–using big round numbers–what the fictional students on the hit show Glee would actually be on the hook for if they wanted to perform their mash-ups and upload their video remakes from an actual high school in Ohio. It’s an issue that apparently has never even been mentioned on the show; no inspiring Will Schuester lecture about life and doing the right thing has ever even grazed the word copyright. I can’t say this is much of a surprise: Legalese can be a downer, even with a show-tune backing track.

Mulligan’s larger conclusion about the current state of copyright in America is this:

Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?

I was also reminded of Mulligan’s comments when Twitter lit up today after composer Mike Rugnetta received a solicitation for funding support from ASCAP for their Legislative Fund for the Arts. He posted the missive in two parts (1, 2). I have to say I was quite surprised by the list of organizations ASCAP called out in the letter. Creative Commons, Public Knowledge, and the Electronic Frontier Foundation have always impressed me with their policy positions. I read on one discussion board that if I had ever received a royalty check from a PRO, I would be less quick to cheerlead for anything that could potentially erode copyright. So any card-carrying, royalty-check-cashing peeps out there want let us know how they feel?

UPDATE: Lawrence Lessig of Creative Commons responds to ASCAP.

Comments

  1. I think ASCAP should be ashamed of itself, and I am presently ashamed to be a card-carrying member of ASCAP. The language in that fundraising email is fear-based and reactionary. Furthermore, it is misleading and disingenuous. ASCAP portrays itself as a grassroots organization and calls attention to the “deep pockets” of Creative Commons, but in fact it is *ASCAP*, not Creative Commons, that’s siding with corporate interests and “deep pockets.”

  2. I’m an ASCAP member, and have received and cashed some checks. I have mixed feelings. On the one hand, I’m sort of embarrassed whenever I see ASCAP throwing its weight around in the policy arena; they inevitably take conservative, “uncool” positions that don’t acknowledge how our world is changing. On the other hand, the more I learn about the economics of creative enterprise in the 21st century, the more I do worry about the insidious effects of extreme competition (and the expectation that work should and will be free) on the field. Composers don’t have too many advocates out there, and ASCAP is one of the few entities that does a good job of it. I do get the feeling, though, that in this case they may be representing the interests of a minority of their members.

  3. Rich T. says:

    I’m the agent for my father, who was a studio musician, performer, music & songwriter from the late 50’s until the late 80’s, when he retired.
    We’ve been fighting with ASCAP for 6 years to get the money they received for selling the rights to several of his early recordings to a overseas company.
    He also handed out free “right to record” statements at the end of each live show back when the recording industry was pushing the “taping is stealing” propaganda.
    he’s totally against anything that would further criminalize fair use, and has asked me to help him write up a appropriately scathing letter to ASCAP on the subject.

  4. I got this letter yesterday; and all I could think was even if it was true, it wouldn’t affect me — seeing as how several songs I co-wrote have been airing regularly for over 2 years on TV (kid’s show stuff, so I do mean regularly), yet I haven’t seen a penny through ASCAP. I think they should worry about their own mission statement and get creators actually PAID.
    And if I was actually getting my royalties, I would still think the letter was ridiculous and fear-mongering. But what else are they going to do — let everyone know there’s an issue that people need to thoughtfully and sensibly make up their own minds on? Of course not.

  5. I’m a card-carrying member of ASCAP as well. At least, i was until i got their message. I’m disaffiliating myself as soon as i can figure out how. This is ingenuous at best, and an insult to anyone with even the remotest modicum of understanding of modern digital content distribution. It shows only how antiquated this whole entire game is.
    ASCAP should change their moniker to ASSHAT: American Society of Socially-Harmful Attorneys and Treasurers.

  6. Imagine for a moment, Corey, that a sample from ‘Other People’s Love Songs’ becomes the basis for Kanye’s latest single. The entire instrumental track is little more than your sample plus an electronic kick drum. It’s a massive hit! Are you really willing to forgo royalties? Maybe I’m missing the point, but not all users of ‘Other People’s Intellectual Property’ are high school kids, and someone needs to see that artists are compensated for their work. ASCAP has shown terrible tone-deafness, PR-wise, but I think there’s a lot of naivete on the other side of this debate. FYI, I’m a BMI affiliate, and do get an occasional tiny check from them.

  7. Steven,
    Creative Commons does not advocate for the jettisoning of all protections: Please take a moment to look over the license categories:
    http://creativecommons.org/choose/
    xo, Corey

  8. I’m also a member of ASCAP, and I was digusted by the tone of the letter. I hold Creative Commons and the EFF in high regard, and painting them as some kind of enemy of musicians is ridiculous. As a musician, I don’t feel like a small-time individual has many options; I have a pretty broad idea of fair use, myself, but if Kanye sampled my song and made millions off of it then damn right I would want a piece. Without the resources to hire a lawyer, who else but ASCAP could help me get my share? Yet at the same time, I don’t completely trust that they’re really always protecting my best interests; and in this case I believe they have amply demonstrated how clumsy and old-fashioned their philosophy is. What a crummy situation.

  9. Steven,
    Also, I don’t think ASCAP collects royalties for sampling like the situation you describe. That would be a mechanical or syncronization license, and paid through another royalty collector. That is worked out, I think, as to what percent of the work is being used in the new work, and then you eventually end up in fair use-question territory. Did Vanilla Ice’s using David Bowie’s beat constitute copyright infringement, or is a beat fair game?

  10. I’m a longtime member of both ASCAP and EFF, and I find the whole situation painful.
    ASCAP’s broadcast and international royalty collections are poor (former is a lottery, latter is unenthusiastic) but their domestic performance royalties are good and appropriately scaled. I appreciate that, and also appreciate that their staff is actually fairly small.
    That said, I have to say I’m always disappointed by ASCAP’s rough behavior (even if they’re not nearly as awful as the RIAA). Maybe it’s a negotiating stance, but it just tastes bad. I testified for them in Vermont some years ago, back when restaurants and bars were totally ignoring the ambiance value of background music. I do feel that a token payment for use of music as a ‘utility’ is valid — but I underscore both token and utility. Utility isn’t a creative endeavor.
    Mashups (even though so many seem to me to be an increasing addiction with all the wit of a party drunk) are in the creative realm and, unless they are monetized, should simply be ignored. The subculture — or now the full-blown culture — of sharing is not going away, can’t be legislated away, and won’t be bullied away. It exists and its results have been a blooming creative realm.
    So there is a clash of those with powerful forces on their side, one legal and one cultural. Ending the clash has to start somewhere, and I have hoped that ASCAP — with people like Fran Richard, who I’ve always found to be enlightened about such issues — would make the first positive move … without having to be shouted down as behaving like idiots (as they did with the Girl Scouts non-issue).
    I attended one of the first ASCAP committee meetings about internet music use back in 1995 (where I met folks such as Laurie Spiegel and Morton Subotnik for the first time). I suspect that the composers in attendance 15 years ago are disappointed if not disgusted by the bullying position ASCAP has been taking (revealed as much in the “Daily Briefing” emails they send out as in the recent letter).
    So I hope ASCAP will rethink its position and arrive at a truly creative solution that acknowledges how culture (to which they’re nominally allied) functions as opposed to a hard-line interpretation of the law. This is no easy task, as Congress has been doing the bidding of the real deep pockets in the past few decades.
    Dennis

  11. Cory Doctorow picks up the ASCAP story (and links to this post) on Boing Boing:
    http://www.boingboing.net/2010/06/23/ascap-raising-money.html
    You’ll note that Cory has to spell his name without an “e” because I hold the rights to “Corey” with an “e.”

  12. Good posts here. I haven’t registered a track with ASCAP in over ten years. I have posted entire scores of mine for free download backed up with a Creative Commons license though.
    That said, I have spoken to and am friends with people who are responsible for the published work of a now deceased composer relative – friends who have been ripped off or seen their relatives get screwed out of basic respectful compensation for their work. I’ve also jumped through the necessary hoops to sample music made by people who are rarely advocated for in our society when it comes to fair compensation for their art (i.e. rural Southern music, early American blues). So I understand the fear out there.
    But why doesn’t ASCAP then ally themselves with Creative Commons, host as many open forums as possible, and break it all down for musicians and their heirs who are bewildered at the wild west that is our digital age? Maybe we need to send THEM a friggin’ letter…

  13. I have to echo what Steven says above.
    The Copy Left has done a brilliant PR job of painting themselves as altruistic advocates for the common man–the high school student with big hopes and dreams, the poor single mom who just innocently wanted hundreds of thousands of musical tracks on her home PC, the stable owner who wanted to play music for her horses. And meanwhile, the Copy Right have largely been a PR nightmare–perpetuating the mythology that rightsholder=corporation and copyright=greed. Absurdity makes for the best stories, doesn’t it?
    But I have to call a time-out here. As an employee of a music publisher, I can speak for myself and many colleagues across the industry to say that we work where we do because we care deeply about music, many of us are musicians ourselves, and we are committed to creating a world where composers/creators can work as functional members of society.
    If you take a closer look at the companies and organizations behind the Copy Left movement, you’ll find that many of them have a vested *financial interest* in devaluing content because they produce hardware and software platforms that profit directly from the free sharing of content among consumers. It’s a bit insidious, I think, to call this heroic. So let’s call a spade a spade. This is a capitalist society and *somebody* is making money off of the music that’s being created. Why not the creator and the creator’s hired business partners?
    The Copy Right would argue that those who have invested in the musical product itself (creator, producer, artist, label, publisher) ought to be the ones to recuperate on their investment. The fact is, musical innovation involves a huge financial risk and *somebody* has to take it. For how many years/decades after we sign a composer do we take losses before we begin to recuperate on our investment? How many composers never become commercially successful? Where do you think that funding comes from? Currently and historically, it has come from the money made on established artists and the occasional hit tune. Thus, emerging talent stands on the shoulders of historic talent; avant-garde talent is made possible by the success of commercial talent. If you disable publishers and labels (the current investors) from profiting off of commercially successful projects (past and/or present), then who will fund the innovation? I know very few creators who’d have the luxury to do so. We’ve learned that consumers aren’t interested; they’d like for it all to exist but they don’t want to have to think about who pays for it. The Copy Left is passing the buck and crying foul.
    Many of us who work in copyright are open to innovation and solutions but I see very few on the outside (or other side) who are aware of or willing to acknowledge this fundamental problem.
    Well then, who will it be? Where will the funding come from? How will it all work?

  14. @Sarah Knight
    I’m genuinely curious about seeing proof of this statement:
    “If you take a closer look at the companies and organizations behind the Copy Left movement, you’ll find that many of them have a vested *financial interest* in devaluing content because they produce hardware and software platforms that profit directly from the free sharing of content among consumers.”
    If you could please post links or resources in this comment thread it would be greatly appreciated.

  15. Also, since – surprisingly – it hasn’t yet been mentioned in these comments, I’d like to state something very clearly:
    While I *am* a member of ASCAP, I license 100% of my works using a Creative Commons License. I also make my living as a composer.
    YES: I make enough money to live in a large, expensive American city, to eat food and pay rent and have fun and live comfortably, writing 100% Creative Commons licensed work.
    So you know just… FYI.

  16. @Mike
    Certainly. And hearing that any composer is living comfortably on their own hard work always makes me happy! Creators always have a choice of what to do with their rights, and it’s great that Creative Commons has worked for you. It seems people often think evil publishers and labels have forced artists into giving away their copyrights, which is not the case. Always up to the artist whether to “hire” a Mean Greedy Corporation. ;)
    Here are some organizations that would identify with the Copy Left:
    Consumer Electronics Association
    Computer and Communications Industry Association
    Electronic Frontier Foundation
    Public Knowledge
    Public Knowledge sounds really noble (and might be) but take a look at their platinum, silver, and gold sponsors. Those are some big fat capitalists–do they give away their work for free for “the common good?” Nay, I say. Nay. http://www.publicknowledge.org/about/who/ip3
    Now, I’m not saying they’re evil, I’m just saying it’s only fair to acknowledge their financial interests.
    Molly adds: Just to clarify, I believe the link Sarah provides indicates funders for a particular award Public Knowledge gives. A list of organizations they work with and a complete outline of their funding (more than 75% of which appears to be Foundation support) is outlined here, with a nifty graph here.

  17. And I really would love to hear some creative and effective solutions to these questions:
    Who will fund musical innovation and creation? Who will invest in writers, artists, and projects? And where will the funding come from?

  18. Wow, I am always momentarily stunned when people try to make an argument for a symbiotic relationship between capitalism and artistic innovation, but I suppose I shouldn’t be surprised that the apologists are coming from the worlds of Rights Organizations, Publishing Houses, and Public Relations, hereafter ROPHOPURs [row-FOE-purrs]. After all, the emergence of 21st-century methods of distribution, promotion, and compensation is a direct threat to the survival of ROPHOPURs as they currently operate.
    I have little doubt that most, if not all, of the people involved in these comments want the same positive things for artists and their artworks, but ROPHOPURs (and the artists they represent) would be much better off cooperating with organizations like Creative Commons rather than huffing & puffing or hoping & praying that nothing ever changes. By sending out the fundraising email that it sent out, ASCAP has made such cooperation impossible and unimaginable.
    Sarah, I don’t see how the proof you provided holds up. In fact, the evidence seems to work against your argument by showing us that the vast majority of support for Public Knowledge comes from foundations like the Andy Warhol Foundation and the Ford Foundation. I know of no way to verify these reports except through Guidestar and I can’t find Public Knowledge in Guidestar’s database.

  19. I chose ASCAP as my performing rights organization years ago. I’m no big-time songwriter, so I’ve received about $30.00 from them over the years… and might never have seen that check if they hadn’t discovered by accident while they were looking into something else.
    Meanwhile, they continue to act against my wishes and, frankly, my best interest when they spend so much effort and money (musicians’ money) lobbying for overbearing, over-reaching copyright legislation.
    Creators should be compensated by the people who experience their creations. I believe this. I also strongly believe that we’re past time when an organization like ASCAP makes sense for the majority of songwriters.
    We’re in an era where fewer and fewer middlemen are necessary, and neo-patronage is a more manageable and ultimately more profitable model. ASCAP and BMI have always seemed more interested in maintaining the status quo that benefits the organization far more than the majority of its members.

  20. @Corey Dargel
    I would LOVE to see change; that’s why I’m asking the questions! I think there are tons of things wrong with the music business and current copyright practices. But I also know how the current (historic?) model works, and I don’t think most people do, so I’ve articulated it to give some perspective.
    I myself, as an artist, do not have the (let’s say) 7K to lay out for every song on a recording. It’s expensive.
    How about some solutions? I’ll ask again:
    Who will fund musical innovation, creation, recordings, production? Who will invest in writers, artists, and projects? How will they make a living? And where will the funding come from?

  21. @Sarah
    I wasn’t going to say anything the first time you asked, but since you insist:
    I certainly hope your solicitation for “creative and effective solutions” to supporting artists is not meant to represent the Publishing House that employs you, because as a self-published artist I might point out that such a statement reinforces the impending extinction of Publishing Houses.

  22. This development gives the impression that ASCAP has hired someone who used to work all those crowd-pleasing, industry-saving legal miracles over at the RIAA. The RIAA turned its own customers into enemies; what ASCAP is up to isn’t entirely clear, at least not yet.
    It’s intriguing that this critique of Creative Commons (and others) came as part of a fundraising letter, because fundraising is often built on fear-mongering. You need to locate, posit, or create an enemy to get folks riled up. Or so the theory goes.
    On an initial read, I can understand (if certainly not agree with or support in any way) ASCAP’s issues with the Electronic Frontier Foundation, since the EFF stands (to me, blessedly) in the way of the sort of Internet monitoring (and other tactics) that ASCAP feels it needs in place in order to “fight piracy” (no matter the inevitable other ill effects, such as invasion of privacy). The EFF is, in essence, the ACLU of the Internet, which means to some extent it exists to serve as a lightning rod for litigation. You don’t take on the Digital Millennium Copyright Act without expecting those who collect on copyrights, such as ASCAP, to come calling at some point. Anyhow, yeah, ASCAP stoking concerns about the EFF makes sense, at least from a bunker mentality.
    But as for Creative Commons? My gosh, it’s like suing the freaking Quakers. All CC does is offer an alternate approach — and the two aren’t even incompatible. There are Throbbing Gristle tracks handled by ASCAP, but it doesn’t keep member Chris Carter from posting tracks for free download over on the great music community (a kind of flickr.com for musicians) soundcloud.com (see http://soundcloud.com/chris_carter/).
    I suppose theoretically that the more artists who ditch ASCAP for a Creative Commons approach, the less a piece of the pie ASCAP gets. But that seems highly unlikely, and if at all feasible, a long ways off.
    That’s what @Matthew (several comments prior) is getting at, I think, when he talks about how “ASCAP and BMI have always seemed more interested in maintaining the status quo that benefits the organization.” I agree. At least in terms of Creative Commons, this is almost certainly more about generating fear than it is about sensing fear of competition.

  23. Brian Kemp says:

    A long time ago I was a musician, one of those computer musicians in the Tracking scene. This was 15 years ago.
    ASCAP wouldn’t even let us apply as they thought we were small potatoes.
    Now they’ll let anyone join. It’s sort of too late. I release all my music under Creative Commons licenses and laugh as these organizations that missed the boat 15 years ago struggle and thrash to stay relevant.
    @Sarah
    CC & EFF don’t have interest in hardware, they have interest in consumer rights. In fact, copyleft depends upon copyright. If you can’t understand that, then you need to read the licenses better. Copyleft is a copyright license that grants “end users” abilities they would not normally have. Break that license and it’s standard copyright.
    Copyright depends upon a balance between the exclusive right to redistribute and a recipient’s right to use the work.
    If a copyright holder doesn’t want me copying their music to my Portable Music Player, I’ll just listen (and purchase from) someone who does.
    Artists can be supported many ways: staff musicians for other creative works, concerts, merchandising, individual sales / collector’s editions (NIN seems to have done well for this, but it may only work on established artists), government grants, and a dedicated fan base. Some even work off the donation model.
    Me? I support myself by being a programmer.

  24. @Brian Kemp
    Thanks for fleshing out the details on “copyleft”—this lower-case phrase is one that I only started learning about recently.
    But I think we may be divided by a common language. I am referring to “The Copy Left.” It’s a term that I’ve seen people (on both sides) refer to loosely as those who claim to be fighting against “The Copy Right” on behalf of the Public Domain.
    Perhaps an imperfect term due to its semantic proximity to “copyleft” but I think it does the job.
    And thanks for answering my question! So in your case, programming is your patron and you are your own investor.

  25. @Sarah Baird Knight
    I’m a small time artist. Unknown. No one knows I exist. If I didn’t put my music under a Creative Commons license, no one would hear it. The professional music industry is so far away from me, it might as well not exist. No one is funding my creative endeavors. You people never did a damn thing for me so your industry can survive or it can die. Frankly, I don’t give a damn either way.

  26. WIRED picks up the story:
    “…the attack on Creative Commons is more laughable than ASCAP’s stance against EFF and Public Knowledge…”
    Amen!
    Read More http://www.wired.com/threatlevel/2010/06/ascap-assails-free-culture-digital-rights-groups/#ixzz0ruUB0OXc

  27. People have had the right to liberally license their work since the creation of the concept of copyright. All Creative Commons does is standardize some liberal licenses. It makes sense to have a non-profit for just this task.
    Sarah Baird Knight poses the question:
    “Who will fund musical innovation, creation, recordings, production? Who will invest in writers, artists, and projects? How will they make a living? And where will the funding come from?”
    A great deal of our classical music canon predates copyright. This music was funded by the people with money then, just as it is now.
    I favor a copyright system, and the ability for artists, musicians and writers (and other creative folks) to earn royalties. Yet one can keep a strong copyright system, and still encourage liberal licensing and a vibrant public domain. When folks argue that nobody will fund creative projects absent a copyright system, that raises the strawman that everyone wishes to abolish copyright. To the contrary,
    many of us wish to preserve copyright, and to merely make it more workable in the modern age.
    Any student of the record companies’ treatment of the artists who brought blues, gospel, soul and rock to the mainstream realizes that the media companies have not treated artists with the respect for their intellectual property righs that these artists deserve. It is particularly ironic to hear those companies now depict themselves as champions of the people to whom they don’t pay royalties when due.

  28. @Sarah Baird Knight
    This is the first time I’ve seen “The Copy Left” & “The Copy Right” used in the way you describe them. You seem to treat them as political parties, which is interesting, and perhaps even accurate, as the EFF and Public Knowledge are pretty much lobby groups (albeit ones that I generally agree with.) But you’re using them as strawmen, putting in their mouthes views they’ve never held.
    There is a movement that makes claims very similar to the ones you’re attributing to this “Copy Left” – it generally self-identifies as the Pirate Party, using icons such as the kopimi symbol. You should probably research them. They’re the ones as far as I know who want to limit copyright to 14 years.
    The EFF, when dealing with copyright, usually deals with issues concerning consumer rights or fair use, such as “If I already bought this song on a CD, why do I have to pay for it again if I want to put it on my iPod?”, DRM uses and abuses, and other non music related business. Public Knowledge seems similar, but I’m not particularly familiar with them.
    Attacking Creative Commons is just silly, though. It’s a website that contains several legal licenses that allow a creator to let people distribute his art, and, at his option, allow people to modify and use them commercially as well. It also has a directory of works that have been licensed with a CC license. That’s it – they’re not even a lobby group.
    You’ve argued that there is a group that profits, by selling hardware or software, from devaluing content and allowing the free sharing of it between consumers. How does this work, exactly? The obvious suspects are companies like Apple, since the iPod is rather useless without content, or Google, because of youtube.
    But Apple runs a music store, and youtube doesn’t allow unauthorized copyrighted works. So how are they profiting?
    Why does “musical innovation” carry such a huge financial risk? You claim that producing a single track for a recording costs 7K. And that’s probably true, if you record at a professional studio, have it mixed by a professional sound engineer, and so on. But today, you can produce OK sounding material for much less, at least an order of an magnitude. Now obviously, it won’t sound as good, and it wouldn’t be as polished, but the financial risk is much more bearable. Digital distribution also involves a far more modest investment than the traditional variety. Marketing is still as costly, but the grassroots variety has worked very well for many, and that’s again much easier and cheaper today than it was ever before. I mean, if you want to be seen, just film a cat doing something funny in sync to your music and stick it on youtube.
    Now, that would probably get you started. If you’re any good, you’d probably break even, or perhaps even make a very modest profit. But the point is, it doesn’t take a huge investment anymore. I mean, even merchandising isn’t such a big investment, with companies like cafepress handling the “keep stock, screen shirts, send shirts in the mail” side of business.
    Now, there’s nothing particularly wrong with the model you’ve presented, either. But it’s not as good, because it carries with it more risk, like you’ve noted. And it’s beginning to topple, and those with a vested interest in keeping it afloat are attempting to use legislation in order to keep this business method the only viable one.

  29. AverageBob says:

    Copy Left and Copy Right are not dueling and opposite political viewpoints like Liberal and Conservative. Copyleft depends on copyright. Copyright as defined by Congress gives the creator of a work the right to control the distribution and duplication of the work. Copyleft extends this by formalizing in legalese the ability of the creator to give the work away for free if they choose. In cases like GPL and BSD type licenses, there are specific conditions that apply in order for the work to continue to be distributed. Again using these licenses are at the discretion of the creator.
    Creative Commons is a non-profit that has done the bulk of the work of formalizing a number of different copyleft licenses. By attacking them, ASCAP shows that they really don’t have a clue about what is going on here.

  30. Thoma dean says:

    @Sarah Baird Knight: I don’t know where you found the term Copy Left as as a term for people against copyright. Google returns no hits. I sounds like a term invented by big media to try and discredit the copyleft movement. I’m sorry but you sound a lot like an astroturfer.

  31. @gurdonark
    Great point about pre-modern composers and how they made money. I just think the issue is about control and how groups like RIAA and ASSCAP are losing control because of their antiquated business model. TV has had to adapt, Movie houses are slowly coming around through venues like Netflix. The problem is @Sarah Baird Knight your business model as it sat 10 years ago is dead. You need to get with the program and adapt to the modern era or die as a business. That’s the American way.
    Can you imagine if Ford still forced you to buy only black cars by suing it’s customers?
    Is it ok if Newspapers sue Google?
    Even Rupert Murddoch figured this out. He is working on monetizing a new business model for his industry and guess what, He will be successful. Maybe not the first iteration or the 10th but he will get it right. He hasn’t wasted to much at all in legal fights after his first one went south so quick. He brushed off, realized what he had to do to keep his business relevant and is making it happen.

  32. By attempting to put legal barriers in front of the use of copyleft licences for one’s own work, they’re effectively trying to ban Wikipedia – which is almost entirely under CC by-sa 3.0. Does ASCAP really want that particular fight?

  33. Why be surprised at ASCAP? CC and public domain is competition. If they are not the sole outlet for content, as they pretty much are for traditionally licensed material, they lose business. Of course they are fighting back. Similarly RIAA know perfectly well that someone copying a friend’s Beatles album will eventually buy it (or another album). They really want to stop easy downloading of CC and public domain music, because a music player full of legally-free music gives them no revenue. Think of the internet as the first truly open media distribution channel, and you see why the traditional publishers of music, books, news, punditry all want to lock it down and control what can go on it.

  34. yourmommycalledandsaidbehave says:

    Sarah Please explain how a non-profit donor funded legal defense firm defending MY COPYRIGHTS pro-bono is making a profit? Please explain how Public Knowledge a non-profit group defending MY RIGHT to an open internet is making a profit? In you answer please demonstrate how ASCAP members are hurt when I DECIDE TO RELEASE MY CREATIVE WORK UNDER CREATIVE COMMONS

  35. Holy macaroni batman!
    I’ve literally read 20 minutes worth of entirely fictional presentations of the viewpoints shared by several organizations.
    Here is the summary as I see it.
    ACAP feels that EFF and Creative Commons are dirty pirates who want to make content free for the entire world. (Regardless of copyright it would seem).
    The reality as it stands today.
    Creative Commons is an entity(as many have stated) that simply reviews, creates and provides freely available COPYRIGHT licenses that individuals can CHOOSE to apply to their works. That is not exactly evil intent because they wholly lack the power to enforce any view point on any one. In fact, the nature of the beast is that they would never force a license on an individual. (Why would they provide so many if they had a preference).
    The EFF works within the realm of the law and generally acts to protect the rights of the people. It is very unfortunate that they also employ lawyers much like ASCAP. (As we all know… lawyers are evil). I suppose the beef between ASCAP, RIAA, MPAA and the like versus EFF boils down to a simple message. EFF would preserve the right to PURCHASE a work licensed under some form of copyright and ensure the end user could view or listen to that material any way they wished. The other forces are generally viewed as preferring the end user purchase the material for every device in the home plus the kitchen sink. (It may yet be possible that one day a kitchen sink could be used as an entertainment view device for copyrighted works.)
    In any event, this whole effort is a complete sham that tries to paint a battlefield where none exists. It’s kinda like Canada and the United States are locked in an aggressive war and we need you to support the troops.
    The problem is there really is no secret war and now you just pissed off the internet.

  36. The purpose of a copyright as stated in the US Constitution, is “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”
    If the current system is encouraging people to continuously create useful or interesting works, then it is working.
    If instead, the current system is more encouraging litigation to protect profits, then it is not working.
    The current copyright system is effectively of unlimited duration. This system often encourages companies to amass large collections of media, for use as a profit machine, with little real concern of the “promotion of useful arts”.
    For a historical perspective, everyone should understand what the effect of the unlimited copyright was 400 years ago, and understand the reasons behind the limits placed on copyright (originally 14 years) with the Statute of Anne, and in the US constitution.
    The Internet allows for much more freedom in the distribution of media, much as the Printing Press did 500 years ago. Now, as it was then, there is a struggle to fight such new freedom, rather than adjust to inevitable.
    Open source and Creative Commons licenses are in a way filling a void left as the “public domain” continues to be eroded by ever expanding copyright duration.
    The promotion of public information and knowledge should be of great interest to the general public, as such information is under constant threat from the large interests behind the constant expansion of publishing and patent control. Any accusations attempting to associate the promotion of public information with special interests are backwards, and either misguided or intentionally deceiving.

  37. “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;”
    This phrase, from the US Constitution, is the foundation of the authority of federal government to establish copyright. It is preceded by, at the beginning of this series of clauses, the words “The Congress shall have Power…” clearly denoting that Congress *may* establish a copyright system. Copyright is not a fundamental or inalienable right in the United States. As such, the right of citizens to abridge their copyright should not be infringed, by any means.
    Sarah, you might be interested to know that I have spent the past few years giving away code and music. You can listen to some demo recordings on my website, and you can go to Ohloh and look up the record of the thousands of commits I’ve made to open-source software projects. People, inexplicably, *pay* me for this. If you feel that one man with a piano and a penchant for playing good music for free is undermining your music industry, then I highly recommend considering going back to the shed and writing better music.

  38. I don’t know why this issue is so confusing for the industry. The creator of the work has the right to control it’s distribution with users and society having the right to fair use. Creative commons helps to facilitate the fair use by giving the creator some common language for defining what they see as fair use of their work.
    In my view, in the current world…controlling “copying” is very difficult, and probably counter-productive. Controlling “commercial use” of content, however, is not a lost cause and should be the focus for artists. If you are making money off of my creative work, you should be required to negotiate with me a fair compensation for that service/product.
    So I release my works with a CC license…
    You are free:
    * to Share — to copy, distribute and transmit the work
    * to Remix — to adapt the work
    Under the following conditions:
    Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
    Noncommercial — You may not use this work for commercial purposes.
    Share Alike — If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.

  39. @Sarah Baird Knight
    Thanks for articulating for the Copy Right. It helps to be able to address specific issues.
    You said, “Who will fund musical innovation, creation, recordings, production? Who will invest in writers, artists, and projects? How will they make a living? And where will the funding come from?”
    Answer: I will. Me and people like me.
    A. My day job is paying for my own creative endeavors; writing, podcasting, video.
    B. I buy the CDs of musicians I hear at their performances, and no where else. I do not download music from the Internet and I have never bought a song on the Internet (except royalty-free music and Creative Commons pieces for my podcasts and videos). I only buy music when it supports the musician directly.
    C. I donate to a few musicians in support of their upcoming CDs.
    D. On two occasions I have commissioned artists to create original works just for me.
    E. I buy royalty-free music libraries.
    F. I intend to commission music for my videos when the budget allows.
    So what legislation is it that ASCAP need funding to lobby for? Since they mentioned Creative Commons, which is not so much an organization as a concept, I must assume that they want to make it a crime to give away music for free.
    If the organization Creative Commons disappeared tomorrow that would not change peoples ability to use the license/contract they created. So the only way ASCAP can attack CC is to get laws passed to make such a license a crime.
    In an earlier post you said, “Creators always have a choice of what to do with their rights”, but isn’t that exactly what ASCAP want’s to change? What other motivation can they have to attack CC?
    You also said, “I would LOVE to see change; that’s why I’m asking the questions!” Well isn’t what’s going on … change. It’s all around.
    The new business model it for the artist to manage their own affairs, connect with fans and give them a reason to buy. Some say all you need is a thousand true fans and you can quit your day job.
    Do you have any fans?
    Peace,
    Rob:-]

  40. You all ought to know which side Sarah Baird Knight’s bread is buttered on:
    http://www.linkedin.com/pub/sarah-baird-knight/4/608/975
    So if her posts sound like ASCAP talking points, she may even have written those talking points

  41. rageahol says:

    As it stands, since the late 70s or early 80s all creative works are, by default, granted copyright. Now, I know nothing of the legislative history of this, but it seems fairly likely that large content rightsholders had something to do with this. And it also stands to reason that were it not for this change in law, organizations like creative commons would not have reason to exist, since one would have to take the time to register one’s copyright on a creative work in order to eventually defend it in court. As a consequence, theres all kinds of orphaned works out there that, because the rights holder cant be located, cant be used as components of other creative works. Is it better to “disadvantage” some rights holders who didnt see fit to copyright their works and might, down the line, derive some small income from it, or is it better to constrain the direction of artistic endeavor through the requirements of everyone involved to sign off (or have their lawyers do so)?
    I dont really know where im going with this, but it seems like a part of the equation that rarely gets mentioned. This makes me sad.

  42. ASCAP, like the rest of the 20th century music business, can see they are neck deep in the tar pit, hence this desperate and stupid move. ASCAP may not be as guilty as say the record companies, TicketMaster, or ClearChannel, when it comes to screwing over artists for decades, but they are part of the same machine.
    The new model has not arrived yet. RIAA, ASCAP etc have done nothing to invent or imagine how a new music business might look, and what they might be able to do to help birth it. As a result they doom themselves to irrelevance in the near future.

  43. @Sarah
    “Who will fund musical innovation…”
    First off, as anyone who is truly creative already knows, there is no need to “fund” creative innovation. It simply happens. Ideas are generated in our minds for free, and specifically with music…
    “…creation…”
    …are implemented by interacting with our musical instruments and tools of choice, whether that be our voice, a guitar, fancy electronic synthesizer, or some household item being banged upon. As an artist, I do this regularly without needing a profit motive and verifying that I’ve been properly compensated prior to creating. It’s an expression as irresistible as tears of pain or joy. I create because there is something in me, at the deepest levels, which demands that I do so, even if it’s for my ears alone. Just because I don’t always desire to make money does not mean I am not capable of creating. To suggest otherwise would only make blatantly obvious a total and complete misunderstanding of the creative process.
    You may reply “but how do you support yourself if you don’t get paid?” to which I say “I do by going to work just like (almost) everyone else” (fat cats in suits who leach off of others like parasites do not count as work in my opinion :p). I make a living which affords me the resources to invest into my creative passions.
    “…recordings…”
    Perhaps you lack the technical expertise to create your own recordings or you choose to focus on one aspect of your creativity, I can’t really argue with that and the need to pay someone else to do so for you, but ability for an individual to build and operate their own recording facilities is no longer out of reach. If you are truly a creative entrepreneur, then investment in the tools of your trade, as with any business, big or small, is tantamount to your success. All of the necessary tools to get started crafting your own recordings are totally within the grasp of anyone seriously considering musical creativity as a career path and are willing to make the “sacrifices” to do so…
    “…production?”
    …and as any new business just getting started knows, you need money to start one. Like I stated earlier, I worked for others to make a living. I reinvest this money into my passions as well as my business enterprises. I started out small and as I gained momentum I grew and I enlisted the aid and participation of others. And as my profitability increases so do…
    “Who will invest in writers, artists, and projects?”
    …investors, who wish to see me succeed and in return generate profit for their investment…
    “How will they make a living?”
    …and by creating a workable business model, I’ve made a living and generated income to reinvest into that business. This is no different then any other successful business enterprise taken by any other entrepreneur. You see, by creating a business model that would actually generate revenue, I am able to reinvest my earning back into my creative endeavors.
    “And where will the funding come from?”
    …it comes from the same funding that would go into any other business enterprise, from investors (including one’s self, their family and their friends) who see the value in whatever it is that makes the creative expression profitable. Simply creating a piece of music is not enough, just like thinking up a really go idea is useless until you implemented in some fashion that creates value to that idea (though patent trolls… i mean lawyers, might have something to say about that).
    Not to beat a dead horse, because others have said this more eloquently then I could, but distribution of a physical product is no longer the barrier of entry, that the internet can now disseminate music, as a digital recording, for free (the cost of internet access and storage not withstanding, being insignificant compared to previous manufacturing costs), and that physical media as a means of distribution is worthless. What benefit is there in making a recording and sticking it onto a CD (or any other physical media for that matter)? In my opinion, there is no rational reason to invest in any physical media whatsoever, except for some the nostalgic value. BUT, this is good news for me, the creative individual, because now there is virtually NO COST in distribution. Likewise there is not profit in it either, yet it free me up to focus on other aspects of my creativity that could remain profitable, should I choose to engage them.
    Which brings me to ASCAP being a barrier to my success rather then a boon. If organizations like ASCAP are harassing venue owners over so called royalty payments or lobbying congress to mandate by law that artists must play by their rules to release their creative works, then in reality its creating a false barrier to my success. Even though I choose to provide my music to such enterprises “free of charge” so to speak (in reality i do get value back from my music being played at their establishment despite not being rewarded a “royalty”), they are now faced with the possibility of lawsuits from organizations such as ASCAP, raising the cost of business for them. For ASCAP members, they value with exchange of money for their creative works more then the value of their music being disseminated to the public at no cost to them. I however, do value this, as more ears listening to my music creates the possibility of more value in whatever enterprise I have chosen to engage with it. My business opportunities, and the points discussed above, are put into jeopardy by the same forces that CLAIM to be working on the artists behalf.
    Lets talk straight here, this is a push by those in power to remain in power. It is corruption at the highest level to maintain a monopoly over what had been, until recent times, a pure part of the human experience. Now that we have lawyers, politicians, and other parasites fattening their bellies in ways never thought imaginable, they want to keep it that way. But they can’t compete with free, as in beer (or free, as in speech, for that matter, but thats a discussion for an other time) so they are seeking every and any means necessary to make sure they don’t have to, which seems to include extortion and the buying of laws to criminalize anyone doing things differently. And to that I say, “what a load of bullshit!” Ultimately, Sarah, what it comes down to is that you are either naive or complicit, neither of which would be commendable. This fight has nothing what so ever to do with creativity, freedom of expression, or the chance for an artist to make a buck, and everything to do with maintaining power and wealth for a select few.

  44. Bozo the Clone says:

    It’s sad that it’s so easy for the traditional media industry to conflate organizations such as the EFF, Creative Commons and Public Interest with the extremists of the Pirate Party and those who actually want to do away with copyright. There are prominent individuals in the “Copy Left” that actually believe “information wants to be free”, whether it’s software, music, video or books. But that view is generally discredited by recognition of the fact that “nobody works for free”. And none of the organizations attacked by ASCAP in their fundraising subscribe to that position.

  45. This is a paradigm shift. The power is shifted from the recording companies to the vast number of creative people out there. Like how the information worker age now is replacing the industrial age.
    The recording industry being pretty much stuck in the old ways don’t seem to understand this – they simply don’t follow what’s going on because they’re used to being in control. What true artist even cares about politics? Its proceedings don’t affect creation or the creative process at all unless playing an instrument becomes illegal.
    Question is: will they learn and change? From the looks of the fundraiser in question and the past 10 years of complete ignorance: hardly.
    Sarah said:
    “Who will fund musical innovation, creation, recordings, production? Who will invest in writers, artists, and projects? How will they make a living? And where will the funding come from?”
    The best motivation for creativity is in fact NOT money, it’s the total opposite – the satisfaction and fun of creation. The technological barriers for music creation and distritubion are long gone, thus the “industry” should be scared – not of alternate licensing models – but of the many talented people who can create great music without the need to live off of it (and in the extreme case – greed – which instead hampers creation and makes the most profitable artists arrogant and generally quite annoying).
    Recording industry: fear the internet, its free distribution models is your worst enemy and will ultimately make music a non-profitable enterprise or at the very least a much less profitable enterprise which is all good for the consumer and the creator!
    We’re already a long way there:
    I don’t buy commercial music anymore because of how the “industry” treats creators and customers. There’s enough other music (creative commons etc.) to listen to on the internet created by people with pure joy behind the creative process, and if they play live in my area I’ll go and buy the ticket.
    Finally: It’s preposterous to say commercial music would be better in any way. Measuring how much “hit-factor” a song has is hardly respectable of a composer and a flawed business model.

  46. For those who argue that giving it away undermines those artists, musicians, or writers.. Those that give it away that’s their choice, and last time i checked- its all about consumer choice. If you make something that is “that good” people will pay for it – so continue to affiliate yourselves with those RIAA, MPAA, ASCAP.. who ever.
    I don’t listen to the drivel on radio anymore, tv/movies have become reruns of all things old. There is far too much advertisements in just about everything we touch. All driven by profit. I’ll stick to the home grown musicians– the independent folks who are true artists.. not solely driven by the need for greed. I think those artists put a whole lot more heart and soul into their products.

  47. admiralbob77 says:

    Sarah: who will fund content creation? As a copyleft artist, I should think it fairly obvious – I do!
    It is my absolute right under copyright laws to determine the scope of the license for the works I create. You don’t need to worry about the funding – as the creator, I create however I create.
    What matters to me as an artist is to give those who listen to my work a very clear guideline as to what they can do with it. Artists who use standard copyright processes have no clear means to insert themselves into “remix culture.” As a result, there are artists with platinum releases who have been mashed up less often than I have!
    By using CC licenses, I explicitly tell anyone listening to anything I create, “well, feel free to do this, this, and this, and you must abide by these rules.” There are several simply branded variations of the license such as CC-A, and CC-NC-A that clearly spell out these rules for any non-lawyer. No mystery, no middlemen.
    I own my work, and a CC license does not dilute that simple fact. But I also don’t want to be a tyrant with my work, and CC enables that too!

  48. In the contemporary classical community, the postmodern advocacy of popular music is very common. In the process, the problematic relationships between creativity and commercialism are often overlooked. The naivety of the viewpoints becomes apparent when contemporary classical composers suddenly “discover” that ASCAP is part of the pop music industrial complex, and that it behaves accordingly. It’s as if some composers have not considered all of the implications of their ideologies.

  49. Interesting to see Sarah ‘complain’ that some composers never become commercially successful. My question is: why should they?
    Not everyone who wants to be something, gets to be that something. That goes for music as well as any other kind of job. Just because you’re talented at something doesn’t in any way give you the right to force society to employ you for that talent.
    Plenty of big stars as well as small local rock bands manage to make a living just on their live performances. If you can’t, maybe you’re just not good enough? People buying the CD that your agent had pressed in your name should be considered a bonus, nothing more.

  50. @RobShaver: Great comment. Are you a techdirt reader? CwFRtB…
    @zenasprime: Another excellent comment. Bravo! I particularly like the last sentence: “This fight has nothing what so ever to do with creativity, freedom of expression, or the chance for an artist to make a buck, and everything to do with maintaining power and wealth for a select few.”
    I couldn’t agree more, and find it sad that so many artists believe ASCAP has their best interests at heart.

  51. talcite says:

    @Sarah Knight
    I don’t know if you’re still reading this, but perhaps others will find this comment interesting.
    Your question was how a content creator would be able to recoup their production costs and expenses (time, food, etc).
    A few others have mentioned a content creator can invest time in learning free tools and reduce the production costs and also explore alternate revenue streams like concerts/souvenirs.
    However, I propose an additional solution.
    The donation model for content which has existed for awhile doesn’t work. We’ve seen that producers very often don’t recoup their costs. Even if they do recoup in the end, there’s uncertainty and high risk at the beginning of the process.
    I suggest a reverse donation model where content creators don’t release their works until they have recouped their costs. A content creator with an new piece of work would calculate the amount they wish to recoup based on their time and money invested and specify it online (there are micropayment sites dedicated for this purpose). Until the micropayments reach the target, the content creator does not release the work into the public . After the target has been reached, the content creator releases it under a copyleft license.
    From an economic perspective, which tries to balance the rights of the consumer with the rights of the producer, this method is sound. With the advent of computers and networks, copying information (songs, images, videos, software, etc.) has become cheaper than ever. It has been a great benefit to people in low income families/developing nations since they now have access to information they otherwise would never have been able to afford. This unfortunately also means that content creators see their work significantly de-valued, often to the point of not being able to recoup their investment.
    However, the reverse donation method has a larger aggregate benefit than the existing pay for one copy of information model . Let me explain. It is possible to consider that each person using content receives some benefit. Software makes tasks easier, images make spaces livelier, songs give more spice to life. Now if you total up the benefit of everyone who uses a piece of content, you can get the aggregate consumer benefit. Now, the content creator will also receive some benefit from the money that is generated through sales, donations, micropayments etc. If you add the benefit of the content creator through money and the benefit of the consumers through use of the content, then you get the total aggregate benefit. Under the reverse-donation model, the benefit of the producer may decrease because they don’t make as much money, but the benefit of the consumers increase significantly because more people are able to use the content (it’s free). Thus, as a whole, society benefits more because the aggregate benefit is larger.
    Now, the astute will have realized that get rich quick schemes don’t work under this model. Content creators in it only for the money will not subscribe to this model. However, those that see their works not only as a source of revenue, but as a thread in the fabric of society will be much more open to this model.

  52. i am a member of affiliate society APRA in Australia. its pretty hard to extract the money from them – its pretty hard to manage your songs – they make it almost impossible to access – they have never done anything to support me as an artist. There i said it, but its true. They take the license money and report that they distribute 50$million etc to artists but its like saying “I’m supporting charity (because I gave money to rich people)”

  53. Eric Elliott says:

    Do you all assume people still want your product, even knowing how much of each music $ goes to lawyers?
    I was a music buyer not a musician & have bought hundreds of CDs, 100s of DVDs & before that 100s of cassettes both audio & video.
    Gradually I realised my music money was supporting hordes of lawyers while retired musicians starved. Famous old blues musicians were starving without medical care while I paid $20 for new CDs of their music.
    Audio & video quality did not improve with technology due to Macrovision and other schemes to prevent duplication. I thank Sony for evil DMCA & for “copy protection” software that wrecked my computer operating system & my desire to pay for recorded media.
    Politics of ASCAP, RIAA, Sony, Apple, Columbia House & others also diminished my desire to suffer distorted music & video degraded by “copy protection”.
    All this ended with me now not buying CDs, DVDs, cable or satellite service. You may assume I pirate but all my watching & listening since 2007 has been of my library, rented DVDs or radio. And the amateur cats on Youtube.
    From me, you used to get several hundreds of $ each year for CDs & DVDs. In last half year, Red Box has rented about 20 DVDs to me for

  54. Thanks for the vigorous discussion. I’ve enjoyed reading your experiences and your posts, especially the insights from @RobShaver @talcite @gurdonark @Brian Kemp @admiralbob77.
    While my perspectives are certainly informed by the fact that I’ve chosen to work for a music publisher (nope, didn’t write the ASCAP points!), the comments and questions I’ve posted are completely my own. I have not been authorized or enlisted to speak on behalf of my employer in this forum.
    More than anything, I just hope for discussions that do not draw caricatures of people with dissenting opinions. There are valid concerns and interests on all sides, and in every area of life and business there are people who act in good faith as well as those who are only interested in winning or increasing profit margins.
    To innovation in all its forms!
    Onward,
    Sarah

  55. @Corey (if you’re still reading): To clarify, I have no problem at all with artists stipulating how their music is used and shared through Creative Commons, copyright, or neither. All I ask is that their wishes/choices be respected.
    Though I no longer work in music publishing and (contrary to your assertion) really don’t have a $$ stake in this, I respect the very real financial risks publishers take on behalf of composers they believe in. It took Boosey & Hawkes decades to make back its investment in Bartok’s music, which at the time was far from the commercial mainstream.
    True story: Ralph Hawkes used to pad Bartok’s royalties; Bartok, who was very poor, would do his own arithmetic and *send back* the extra money. Different times? For sure. But publishers are still taking chances, and deserve a little respect.

  56. @sarah baird knight
    Thanks for your reply in this spirited discussion.
    What puzzles me (and others) here is why ASCAP
    sent out a fund-raising letter which assails Creative Commons, when Creative Commons is a copyright-derived system devoted to licensing copyrights, not abolishing copyrights.
    Many of us understand the difference between ASCAP and, say, an RIAA, and the different interests that ASCAP represents than does other industry groups.
    The difficulty arises when ASCAP seeks funds from its constituents by making the argument that liberal licensing of intellectual property equates to a political agenda that all music “should be free”. Liberal licensing is anything but a pirate party approach. Liberal licensing provides the artist with the purely optional
    property right of making music available to others on less restrictive terms.
    We read of performing rights societies in other countries which seek to ask governments to legislate away the artists’ freedom to liberally license works in the name of forced mandatory representation by a society. This form of attempted invasion of intellectual property rights should not wash onto our shores. I have not seen ASCAP propose such an arrangement, but a fund-raising campaign making claims in error about Creative Commons causes me a hint of concern about ASCAP’s goals.
    I’d like to see a world in which ASCAP stopped trying to feud with Creative Commons and
    instead innovated on ways to work with the burgeoning Creative Commons music scene.
    The issue for ASCAP is whether it is to remain relevant or whether it is merely reactionary.
    I am hopeful that ASCAP abandons approaches like the June 2010 fund-raising letter and
    redefines itself into relevance once more on these issues.

  57. Additional thoughts about practical issues.
    Though I still facepalm over ASCAP’s behavior, it does make some sense that they might react badly to Creative Commons (aside from the above-noted fears of loss of power, etc.).
    Creative Commons is still new. Licenses are a mere eight years old, and only a few “major” (i.e., commercial) artists have publicly adopted them for a handful of projects. There will be no serious influence until that changes, and rather than excoriate ASCAP (more than they deserve) or folks who work for traditional publishers, it would seem that convincing major commercial acts to move to Creative Commons licensing would prove powerfully influential. If that doesn’t happen, Creative Commons licensing will just be the refuge of minor artists who will be giving up very little anyway, and eventually vanish into the abyss of good ideas badly implemented.
    And speaking of bad implementation, Creative Commons adds six new licensing schemes. In a world where both system exist side-by-side, how would ASCAP apportion royalties, or even determine if they are owed? What constitutes an ASCAP-licensed ‘public performance’? What about publishers — even self-publishers? Creative Commons licensing is less clear than standard copyright. There’s already a split within the various ‘free’ movement forks. And issues such as reversion or legal protection or inheritance are murky. Even the creation of derivative works is unclear.
    ASCAP can show plenty of stupidity, but it seems to me that figuring out how to effectively integrate a functional Creative Commons mechanism into the existing (even if dysfunctional) system can be successful and guide the process away from increasingly litigious behavior. I think everybody wants a working solution to the present mess. But if this is a pure culture clash and if the only purpose is to topple the present system, though (and there’s plenty of evidence from the above posts that that’s the case), then there’s no way to talk, and all you’ll get from ASCAP is more opposition.
    On a personal note, I know most of you are younger (sometimes far younger) than I am. I’ve spent my entire adult life trying to survive as a composer. I’m almost past the day-job phase of many of you because I’m becoming too old. My programming skills, once cutting-edge, are years obsolete. My web skills are creaky. I won’t be able to perform. I never had kids who might be there to take in the old man. My fame as a composer is minor, so my commissions are small. Only one year was I able to survive on a cobbled-together set of artistic activity.
    So my question is: How will you survive if not from the work you’ve done over a lifetime?
    Dennis

  58. Jason Robert Brown is an ASCAP artist with something to say.
    http://www.jasonrobertbrown.com/weblog/2010/06/fighting_with_teenagers_a_copy.php#more

  59. Steve Layton says:

    I hear you Dennis. But the copyright system, and the means we’ve evolved to deal with it, are so broken as to be meningful for only a tiny subset of all composers/authors.
    ASCAP does a couple things pretty well: track & pay for commercial music usage (film, advertising, etc.); pay for concert performances in traditional settings — though the onus is often on the composer to report those performances. ASCAP also is very good at getting the big dollars to the big broadcast artists — though only through their proxy publishers/labels. But artists creating outside these few things in practice barely exist. The problem is that ASCAP is set up to serve not the artist, but the artist’s representative. There has to be a publisher and/or label in the middle for it to work; meaning, the whole process has been hijacked by corporate, business concerns, which in the end are the real drivers and shapers of copyright. The artist/author is essential, but only as the “product”.
    Corporate, NOT individual, concerns are what’s driven the length and restrictiveness of copyright ever higher and tighter. The company is happy to get money coming to the artist & heirs for 95 years, but only because they want their (often bigger) cut to continue. There is zero altruism there.
    Copyright should have always remained in control of the author, NOT the publisher. And it should have never gone past, say, 30 years per work, period. Plenty of time to profit personally, and plenty of opportunity still for the timely growth and reworking of ideas, that is vital to a thriving creative culture. Remember, that BOTH of those ideas were behind the original concept of copyright.

  60. Hi Steve!
    I’m not sure how being in ASCAP vs. being an unaffiliated artist with or without Creative Commons licensing applies to what you’re saying — at least for most of us minor artists. Composers don’t have to have publishers to receive royalties via ASCAP (which, by the way, takes less than 12% from royalties for its operations). Composers with publishers see the royalties split between the two, but composers can be self-published and so receive 100% of the royalties again — and never sign a single work over to anyone.
    In other words, I’m not grasping what improvement is being suggested. Yes, corporations have driven the extensions and tightened the restrictions of the law in their own interests (copyright began as a protection of publishers, not creators). But the corporatization of contemporary life is the villain here.
    What’s the solution? That is, in these circumstances, of what benefit to artists is Creative Commons copyright? It’s certainly of benefit to those who want to use others’ work in creative development, and I’m fully in favor of that. What has not been well crafted, though, is the economic aspect of the Creative Commons model. It’s fine to stamp works with the various initials, but how does a working artist derive some economic encouragement from it? Send bills? I can understand a licensing agency, publisher, composer representative or family member being upset about figuring out how to make sense of a one-in-six roll of the billing dice! Though I’ve put all my scores up for free download, none is Creative Commons licensed because such licenses are all outgoing — no benefit accrues to the creator of the work.
    I’m not going to draw conclusions for others, but I know that my most rewarding year as a composer was the one where I had nothing to think about but composing, living on commissions and royalties for that one year. Sure, I’ve chosen to remain poor rather than work in a sweatshop, intellectual or physical, and concentrate on composing. I remember Frank Oteri being shocked when I told him what my annual income is.
    All of us will likely work on our art no matter what, but to work at it full-time turns it into an economic issue. Those who choose to reject the economics are welcome to do so; they apparently have other income or think they will forever be handsome and tall as Phlebas.
    I don’t. As it stands, traditional copyright and my membership in a licensing agency offer me a pension that I don’t get from those 9-to-5 jobs I’ve never held. Neither Creative Commons nor your 30-year expiration can give me that either. These works are my investment, small as it may be, in the rest of my life.
    But that still doesn’t solve the problem, does it? How do we get ASCAP (and truly evil licensing agencies like the RIAA) to end this cultural war and come to grips with a cultural change that at heart threatens neither their existence nor mine?
    Dennis

  61. Steve Layton says:

    Dennis, as much as it would be swell for you and me both, I think it’s wrong to end up with this idea of copyrights becoming a “pension”. The original Copyright Clause in the Constitution lays a very different stress: “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.” … It’s purpose was to give a creative indiviual a chance to get just enough control, and get some renumeration from their creation, to make it worthwhile to risk the creative act.
    But they wanted a real limit on this benefit, precisely to ensure that “Progress” of the “useful Arts”. To work as intended, the limit on this right has to be short enough to both let the idea go freely into the world to become fodder for new creation, and to prod the artist to look towards their own next work. The limit has given way to the protection, and the whole equation unbalanced. It’s not about progress at all anymore, but rather locking it up for life and beyond.
    And it’s also become a question not of locking it up for the individual, but rather the entity. You may not see much problem with ASCAP’s 50/50 proposition; yet the fact that the second 50% can only go to some business entity is a sign of just how warped and conditioned the system has become. In practical terms, the whole system is designed to deal with an individual’s copyright being sold to, and controlled by an entity. Even the completely “independent” artist has to create some separate entity to fully participate. This is pretty twisted thinking, to my mind.

  62. Steve,
    I appreciate the differences you point out, and see where we don’t agree. The bureaucracy or even moral ambivalence of having to set up a publisher for ASCAP’s doubled royalties is rooted in the past. That sleight-of-paper doesn’t really bother me, since there’s far worse in dealing with any governmental bureaucracy.
    Appealing to history might be problematic. The U.S. Constitution was a historical change from the origins of the copyright idea, which protected publishers rather than individuals. Also, Article I Section 8 does not specify a time, nor does it indicate the reasoning — just that the term is limited in order to ensure progress. The “commons” idea is not enshrined here. There’s merely an encouragement. What kind? By offering a possible monetizing of those rights? By making sure those rights reverted to the public domain? By allowing the creator to build on his or her existing work? What does it mean? It’s the right itself that’s important — so important that it’s the only one granted in the body of the Constitution.
    More important for us to consider is that the average lifespan at the Constitution’s drafting was 35 years, so the initial legislated choice of a 7-year span was proportional. Average lifespan is now nearing 80 years. Until recently, copyright matched that growth pretty well, with the last (pre-Disney) a 28-year once-renewable term.
    What’s happened in recent years, I think, is the heart of the problem. The triumph of corporatization (gaining strength since the 19th century creation of the ‘artificial person’) has created a kind of cultural gridlock. No one can move unless there’s a strong enough entity to make a move.
    The arguments have been made. What is the solution?
    Dennis

  63. “Who will fund musical innovation and creation? Who will invest in writers, artists, and projects? And where will the funding come from?”
    Who cares? You make it sound like listening to music is some sort of human necessity. “If superstar musicians don’t get paid millions per year, we’ll all die!” Real musicians make music because they love it, not because it’s going to make them rich.
    Abstract art exists because photography made photorealistic painting obsolete. The artists didn’t know what to do with themselves so they either became photographers or starting making nonsense and calling it art.
    In the future, camera technology will evolve to the point where everyone takes a perfect, professional quality picture every time. Then what will happen to the professional photographers? The same thing. Is this a terrible thing? Of course not. It’s a GOOD thing.
    And the same thing’s happening to the music industry. Technology is allowing anyone to make and distribute their own recordings, for less money. The quality of those recordings will steadily increase as the hardware prices come down and the software makes it easy for even a braindead musician to get a good mix (and there will be so many competing solutions for this that they’ll be cheap). Eventually studios will be out of work, and there won’t be any more superstars. I’ll be happy to see them go, and to see the soul return to music once again.

  64. “Jason Robert Brown is an ASCAP artist with something to say.
    http://www.jasonrobertbrown.com/weblog/2010/06/fighting_with_teenagers_
    @Sarah,
    Firstly, Mr. Brown attempts to devalue Eleanor’s statements and reasoning by calling her names, namely that since she is some hardheaded “teenager” that none of her arguments are valid. He even admits that he doesn’t know what her true age is, though this doesn’t stop him from using the defamatory “teenager” to somehow indicate that his belief is of value while the “teenagers” is not.
    Secondly, Mr. Brown attempts to teach Eleanor that what she is doing is “wrong” by citing a few logically flawed examples of why he feels this way. Ultimately, this is not a right or wrong, black or white, debate. There is a fundamental divergence of cultural understanding. On the one hand, Mr. Brown ascribes to a philosophy where he feels that he is entitled to compensation for his “work”, regardless of the fact that the “work” he is seeking compensation for, namely the duplication of his sheet music, is a valueless enterprise merely propped up by the state in the form of a “copyright”, a hold over to a time when copies were printed on physical paper and required investments and limited resources. Eleanor, on the other hand, does not see that making digital copies of a document (which for all intents and purposes is free) for no direct commercial application should be subject to compensation AND as she points out to him, ultimately has the possibility to benefit the short sighted Mr. Brown in the long run by exposing his creation to new people who might then compensate Mr. Brown for a product/service, the entrainment value of attending a musical at a unique location and all the benefits one may obtain from doing so (in the flesh).
    Thirdly, Mr. Brown is living under the assumption that he is entitled to continue making money using an obsolete business model. No matter how much the recording, publishing, royalty industries do not want it to be so, distribution is NO LONGER A VALID BUSINESS MODEL, simply because it is no longer a SCARCE RESOURCE. Distribution no longer requires vast amounts of investment, special skill sets, nor large business process to accomplish. Nor does publishing, much to your own detriment. All of these business models have been made obsolete over the last 20 years by this awesomely wonderful communication tool we have grown to know and utilize call the internet. When documents and other digital data can be duplicated at almost zero cost to ANYONE with a computer and digital storage, demanding that the market continue to pay you for the luxury of duplicating it for them is in the very least meaningless and to be completely honest with you, corrupt to the core, as it is with the current state of copyright.
    At the end of the day, what you, Mr. Brown, the recording, publishing, and to some degree, royalty industries, are advocating are corporate and creative welfare, which not only is wasteful, but detrimental to the common good, as well as to the creators of art in general. I should not be FORCED or COERCED by the point of a gun (which is, make no bones about it, what the law ultimately is) to contract a middleman in order to decimate the product of my creativity. If I chose to forgo the “benefits” of an organization such as ASCAP and choose to freely distribute the fruits of my labor, that is my business and nobody else’s. Likewise, I do not need ASCAP or any other organization seeking to take a cut of my hard earned financial success, should i develop a prosperous business model by which the general public feels that the value of what I provide for them is worth compensation.

  65. I am wondering if any of the commenters who say they are members of ASCAP and that they are unhappy with ASCAP’s actions/positions have actually made their feelings known directly to ASCAP (calling, writing, etc.)?
    It seems to me that as they are a members’ interest group, hearing from their members directly would have much more impact than anything else.

  66. Let’s clear the air here. There are many in the free movement that do not understand what an organisation like a.s.c.a.p. does.
    First of all, they do not charge the fans or consumers. Secondly, they take fees from those who make ad revenue by displaying content. it IS FAIR because the amount they charge does not put the media outlet out of business, and it is of NO COST to the consumer. I collect royalties for songs I have written which are in movies that MAKE MONEY. the royalties I make do not hurt the fans and do not hinder production in any way. in fact, it enables me to produce more music to be enjoyed by the fans. it is a win-win.
    to paint a.s.c.a.p. with the same broad brush as the big record companies, and say, Metallica, etc, is unfair. Royalties DO benefit artists and fans.
    don’t forget that there are many businesses that would benefit by abolishing royalties and they are probably more profit-motivated or “greedy” than artists/technicians which use money to CREATE the art which is being to rabidly consumed.
    Many of these profit-geared interests are purveying the false notion that preserving fair profit compensation for artists is “evil.” With a lot of well-meaning, hungry music fans getting caught up in this confusion and, quite frankly, being fooled into taking a stance against artists’ fair royalties.

  67. Tim C wrote: “I’ll stick to the home grown musicians– the independent folks who are true artists.. not solely driven by the need for greed. I think those artists put a whole lot more heart and soul into their products.”
    ——-
    If one of those home-grown artists which you are a fan of records a great song that you like, gets placed in a film and makes some money from it, does that make them a greedy musician?
    I don’t think it’s that black-and-white. there are MANY great artists that tread the grey area in between the 2 groups you mentioned. unfortunately, they are all being labelled as either greedy or friendly. it is a VERY unfortunate thing indeed; for artists and fans. collecting royalties which are representative of airplay/ad revenue does not make an artist any less “true”. it just means that they want to be able to buy new guitar strings for a gig that night, or put some gas in the tour van. seriously, would that make me a greedy artist motivated solely by profit? I guess google loves for people to think that. they own youtube. they make money from it, but they don’t want to share even a TINY FRACTION OF A PERCENTAGE of it with providers based on the success of their content in making google that money. is that cool by you? do you think that google needs to keep all that money? would that benefit you or any other fan of good music? probably not.

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