Screwing the Poor to Protect the Rich

Postclassic Radio has been found in violation of the 1998 Digital Millennium Copyright Act, under which Live365.com operates. Because I sometimes play more than two consecutive tracks from the same CD, the station cannot be listed in Live365′s directory – I don’t really know how big a deal that is, I imagine most of my listeners go there direct from this blog. But here’s the e-letter I sent to Live365:

Dear Live 365 Staff,

I see that my internet station, Postclassic Radio, is
listed as noncompliant due to too many tracks coming from the same CD. I
run a classical-paradigm station, on which I sometimes play multimovement
works. According to the rules you’ve set up, it would be inadmissable to
program an entire Beethoven symphony, because that would require four
consecutive tracks from one CD. Surely some exception could be made for
classical works with more than two movements? My station gives exposure to
hundreds of little-known composers who are thrilled that I do this for
them, and some have specifically thanked me for playing entire works,
something no commercial radio station will do any longer.

I submit that this ruling imposes an unfair penalty on classical music. It
should be easy to distinguish multiple tracks that are all from one
classical work from several independent tracks that are truly
noncompliant: the titles will all be the same. For instance, I am now
listed as noncompliant for having a piece by Julius Eastman called “Piano
2,” which is in three movements, and the tracks are labeled “Piano 2,
i,” “Piano 2, ii,” and “Piano 2, iii.” In addition, this
is a private
recording, not even commercially released. No one is losing any income
from my playing this little-known, unrecorded work. Isn’t it possible that
when several consecutive tracks have the same title, except for the
movement number – like “Symphony No. 5″ – that some allowance could be
made for it being an integral classical work in several tracks? And how is
it possible for this ruling to apply to works that aren’t even
commercially recorded, and therefore aren’t “tracks from the same CD”
in any meaningful sense?

My station attracts a lot of national attention, and there will be some
public outcry if I have to start scaling back the complete works I play
because a pop paradigm is being imposed on classical music.

Thanks for your attention, etc.

I won’t quote the reply I received, because I didn’t ask permission, but it sort of politely said, Screw you. Here’s a statement from their original notice:

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA). This piece
of legislation established parameters around which one could build a
business in instances where copyrighted digital material is concerned (e.g. music,
software). It also built in some protections for the content
 companies who produce said digital material, (e.g. the RIAA) as they wanted to
ensure that internet distribution wouldn’t cannibalize sales.

So here I am, paying 30 bucks a month for the privilege of giving my friends’ music away so they can get some exposure, and I’m prevented from doing even that in a way that represents their music correctly because of laws put in place to protect megacorporations from being ripped off by the masses. One can imagine a nearby future in which people will not be allowed to distribute their music to each other unless some corporation is skimming money off the transaction.

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Comments

  1. says

    I too think it’s a pretty silly rule, and always have ever since these things became law in 2003. The relevant part of the act here is:
    In any 3-hour period, one can webcast: A) No more than 3 songs from one album; no more than 2 played consecutively. B) No more than 4 songs from a set/compilation; no more than 3 played consecutively. C) No more than 4 recorded songs by the same artist.
    But I wouldn’t beat up the Live365 guys; Congress voted it into law on the backs of corporate interests, and the gripe is with them. And until this whole DCMA is finally rationally revamped or chucked, well, a bad law’s still the law (which is all the lawyers need to do their thing).

  2. says

    Yes, the ruling is stupid, but no matter how many requests you send to Live365, there is nothing they can do – it is a law, and if they were to accommodate you, they would be in violation of that law.
    I would also say that the pop paradigm that is being applied to the classical recording is the insistence on dividing movements into separate tracks on the CD. A multi-movement piece should be presented as a single track – after all, isn’t the pause between movements part of the composition?

  3. says

    Yes, Congress screwed up when they enacted the legislation. In a way, I guess it shows how little clout the classical music biz has, since it’s such an obvious issue.
    On another, ironic note: one of the reasons movements have different tracks, or even in some cases, one long piece divided up into a number of tracks, is so that they will receive radio more radio play by allowing shorter passages to be played!

  4. Jun-Dai says

    This sort of hangs on how one defines a “selection of sound recording”, which is what is being interpreted here as a “song.” The relevant legal text looks to be section (j)(13) of http://www.copyright.gov/title17/92chap1.html#114 I wonder if there’s any legal precedent for interpreting a single “sound recording selection” as a whole work consisting of multiple tracks? Does it help matters if you join them into a single track for the broadcast?
    It’s hard to imagine that you’re on shaky legal ground, especially if you have the good will of the artists on your side. Then again, I’m not a lawyer, so I probably shouldn’t be dispensing legal opinions (there’s a special clause I find interesting: “the transmission of selections in excess of the numerical limits provided for in clauses (A) and (B) from multiple phonorecords shall nonetheless qualify as a sound recording performance complement if the programming of the multiple phonorecords was not willfully intended to avoid the numerical limitations prescribed in such clauses.”
    I’m sure you’ve considered looking for another home for the station. Perhaps you can partner with someone to host it like Ubuweb or Magnatune? Or maybe you can jump on AJRadio if ArtsJournal gets it up and running soon?

  5. says

    Jun-Dai, the problems with finding a new host, or hosting it by oneself, are many. Besides the potentially-ruinous cost of bandwidth if a show’s popular, the greatest concern is in tracking and paying royalties. The rules the DCMA has for that are truly a nightmare, and for the average joe they’re just too much to deal with. I’m sure one of the main reasons Kyle uses Live365 is that they take care of all of that.
    As to number of tracks, there is one solution Kyle could try: using an audio editor it’s pretty darn easy to paste separate tracks end-to-end into a single file; multimovement works could then be presented a single track.

  6. Jun-Dai says

    I’m no expert on the law or music broadcasting politics (and legalese often means the opposite of what it looks like it means), but I thought the point of all this fuss was that it _wasn’t_ necessary to pay royalties for broadcasting music, provided that you don’t exceed these limits provided within the law (the “sound recording performance complement”). In a case where you do pay royalties, then those restrictions don’t really apply anymore, given that you are paying them for an agreed-upon license for broadcasting the music, right? Perhaps I’m mistaken?
    As for the bandwidth (and server management hassle), that was the reason I suggested going with an organization like Ubuweb or the forthcoming AJRadio. These people should be no strangers to managing these sorts of services and the bandwidth increase shouldn’t be much, given what they already handle (esp. Ubuweb, which handles large file downloads, and Magnatune, which already handles semi-mainstream radio streams). It just seems to me that like-minded organizations might appreciate the additional attention from another angle that the webcast would bring them, as well as the ability to expand their offerings to the public.
    Certainly there would be something of a hassle in setting it up (organizationally as well as technically), but if Kyle somehow finds the time, it strikes me that everyone would win from this solution (provided that the other parties would even be interested).

  7. says

    Jun-Dai, I’m no expert either, but I’ve been putting my music online since 1998, have been involved with all manner of sites that tried to navigate the new world of online streaming and downloading, and seen a lot of what’s gone right and wrong.

    There’s no exception here on paying royalties. Kyle & everyone else’s money paid to Live365 is used to pay those royalties, with Live365 taking care of the tracking and payment to the appropriate agencies.

    Not that any of the artists will probably see a penny of it… Paradoxically, though all of this online streaming can be precisely tracked and recorded, places like ASCAP and BMI only deal with big statistical numbers, giving the biggest share of the money pool to the most-played artists. Meaning that the stuff Kyle plays for all practical purposes falls completely off these organization’s radar. It’s a sad fact that streaming Peter Garland, and being legal and concientious about it, puts money in Ashlee Simpson’s pocket (unless of course we can get a lot of people to broadcast Peter!), but as far as ASCAP is concerned they always get their cut, their fattest cats stay suitably appeased, allowing all those cushy-slimy award-party photo-ops that fill the monthly magazine.

    And the restrictions on number of tracks played are completely separate from any royalty issues; just one more hoop to jump through.

  8. Jun-Dai says

    A slightly more intelligent search around the Internet than the one I did before shows me that you are indeed correct. I landed upon the rather wordy and tortuous article at (http://www.copyright.gov/carp/webcast_regs.html), and it seems that for non-commercial webcasts, the rate for sound recordings (distinct from the works being recorded) is .02 cents per performance, per listener (.07 cents for commercial webcasts), as set in 2002 (retroactive to 1998).

    Fortunately, for your convenience, all payments for sound recordings are made to SoundExchange (a subsidiary of the RIAA), but that still leaves you wondering how to calculate the number of listeners (including those who listen to partial songs) and keep track of everything played and how often–not to mention determining what a “performance” is. On top of that, you have to pay ASCAP, et al, for all of the “musical works” you’re playing (which is theoretically the part where the actual composers get their dues). I guess I should never leave a webcast playing when I’m not around my computer, since I would still be deemed a listener running up charges on the webcaster’s account.

    An interesting note in there is that the RIAA specifically wanted a surcharge for songs lasting longer than 5 minutes while the webcaster petition group wanted an exemption for songs under 30 seconds. The RIAA also wanted to offer a 25% discount to organizations that added some layer of security to their webcasts, preventing the end users from capturing them (they were denied).

    I am amazed that public and school libraries still exist and are free, not to mention used bookstores and music stores. It’s quite unfortunate how much this is likely to stifle a growing market and an excellent means of promoting music and expanding one’s own awareness of the music variety of music available.

    This has given me much more respect for Magnatune. I don’t know if such organizations have much future, but if they do, it would be nice to imagine a day where you could feasibly run a diverse and interesting webcast using only music from organizations like Magnatune, which would allow you to negotiate a royalty (or royalty-free) arrangement directly with the artists without going through them.

    Have you or any other post-classicals worked with them? I’d be curious to see if they are as upstanding an organization as they seem to be on the face of it (their slogan is “we are not evil,” which carries a nice double-entendre: they are not evil customer-squeezing, artist-bleeding record companies, nor are they evil artists-be-damned free-music copyright violators).

    On a final note, I will content myself with thinking that the record industry is probably doomed anyways, and that all this last-minute penny pinching is only going to make matters worse for them. For all of the RIAA’s hollering “think of the artists!” it seems clear to me that even if money made from selling audio recordings dwindles and becomes unable to prop up such a bloated industry, music will still be made.

  9. says

    First, you have my sympathy and support.
    Second, I really hold live365 responsible here. They should have been able to obtain a blanket license for classical music. They just didn’t negotiate for that. This should probably be a reasoning for cancelling them.
    Third, this reveals the problem in dealing with RIAA recordings. Rather than feel burdened by it, look at it as an opportunity to promote music not burdened by RIAA requirements. For one thing archive.org has a pretty incredible music of electronic recordings (and probably some classical too). Second, there is a golden opportunity for smaller groups recording straight to the web to make a difference. They need your help and attention.
    Third, there are lots of other radio stations/streaming software out there. Try webjay.org for example.
    Fourth, one ultimate solution is boycotting RIAA. A lot of people in the pop music world have done so. Why don’t you?
    KG replies: I have no earthly idea what that means, or what it would entail. Explain?

  10. says

    By boycott, I mean stop buying any music produced by RIAA companies (here is list of companies. If you’re wondering, chances are that almost all the big labels in classical are RIAA companies).
    Alternatively, stop playing songs on their albums.
    Yes, I realize this is a really drastic step, and at some point your obligation to showcase the masters of our past takes precedence over making a political stand. You have to decide how far you need to go.
    Classical music has some special issues involved (for one thing, the limited audience). Also, many such organizations tend to be funded by nonprofit sources, so they might have different obligations and stakeholders.
    I’ve written about the copyright/music issue at length a few years ago. Also, you might enjoy the very interesting and persuasive book by Kembrew McCloud, Freedom of Expression (about copyright reform, with a special focus on music).
    For archive.org, try netlabels .
    There are hard, terrible obstacles, and I can’t suggest a solution. But as an avid listener, my attempt to bypass RIAA has led to a different approach to listening and discovering new music. The classical music world has been a little behind what’s going on with rights issues in pop music, but I’m sure a good solution will be found.