The Web Difference

This was the first time our class got kicked off with music. We were treated to Brad’s track, Making Me Nervous as well as two other tracks.

Background:

Brad is a really successful one-man band and web musician. He offers his music online, on www.bradsucks.net. What is really unusual is his copyright policy – his music can either be downloaded for free or purchased. He has a pretty “liberal” copyright policy; essentially he allows the public to use and distribute his music in any way they wish.

I thought it will be best to summarize Brad’s views on a number of issues instead of transcribing the entire interview:

Music distribution model

With reference to the 6 possible models outlined in David Byrne’s Survival Strategies for Emerging Artists – And Megastars, Brad thinks he uses a combination of the “self-distribution” and “license” models. He does mostly self-distribution through his website and other sites like iTunes, Amazon, Napster, Rhapsody, CD Baby). In addition, he has a non-exclusive 5-year contract with Magnatunes.com in which he gets a percentage of profits they make.

Why adopt such an approach?

Brad is interested in both music and the web. He saw the possibility of this model very early when MP3s become popular on the web, and it seemed obvious to him that music would now be accessed through files instead of CDs. The simple approach of cutting off “middlemen” appealed to him.

On copyright

Brad has stated on his website that the public is free to use his music. Original samplers may even be used commercially. This approach has worked well thus far. This model has been an economical way for him to attain publicity on a scale he had never imagined. He has been able to obtain “free advertising” and spread his music round the globe. Any kind of publicity is useful for a budding musician.

Brad also referred us to an article by Kevin Kelly that played a part in his development of this particular model of music distribution.

While Brad has come across instances when others used his music without giving him credit, he noticed how these projects do not normally go very far. Since he already has a presence on the web, it is easy for him to discredit such attempts through blogging. The publicity from such scandals can actually be beneficial for him.

Brad did clarify though that he still has financial needs, he is still a “capitalist”. He just does not think that revenue can be obtained simply by forcing people to pay for songs. Since he already obtains free publicity from his fans’ voluntary distribution of his music, he thinks he should “go easy” on copyright.

Ultimately, revenue will still be earned once he develops a relationship with his fans. Donations, sale of his CDs, purchase of his CDs and licensing will naturally follow. Brad has been earning his income from all this diverse sources. His music has even been noticed by William Gibson, author of Cyberpunk, who came across his music through a YouTube video. Brad thinks that his model of music distributorship, which was very novel when he first launched it, was actually instrumental in drawing attention to his music. He has also noticed that his fans seem more willing to donate because they are aware that he is an independent musician and the money they pay does not go to recording companies or large corporations.

While copyright has a place in protecting other parties such as corporation, in Brad’s opinion, it cannot ultimately harm him. On the contrary, any unauthorized use of his music will lead to more publicity for him.

The future musician and the music industry

Brad sees himself as a “humanized” and independent musician who builds relationships with his fans. His success is probably due in no small part to the connection his fans feel with him. Some of the things he has done to make him a “personable” musician include organizing a contest for background vocals, blogging and posting drafts of his songs online.

Brad thinks this model of distribution through the web allows him to be a semi-professional musician. He is able to be engaged in other activities such as programming, apart from music. Looking to the future, he thinks that it is probable that record companies would increasingly be open to alternative modes of distribution that include profit sharing. See, for example, rcrdlbl.com.

Web difference

How is the web crucial in causing Brad’s music to thrive? Brad finds that he would never have been able to succeed without the explosion of MP3s and the web. The web offers avenues for people to be easily connected to him and for them, in turn, to be connected to others and spread his works. File sharing through the web has essentially provided free marketing of musicians’ works. The numerous untrackable networks in the web, together with file sharing, have caused music files to be spread in most unpredictable ways. In today’s world, everyone has infinitely more choices than before. It is no longer the age when you could only obtain music through the radio or records.

Future plans?

Brad’s plans will be quite dynamic. The main focus will still be on giving his fans many options in using his music.

I think I’m not alone in thinking that this class was really inspiring, especially for any aspiring musicians amongst us. While we may discuss about copyright and web difference, it certainly helps to hear what an actual musician thinks about all our debates.

This article about about a Swedish company, The Pirate Bay, illustrates a way in which the lawyers of P2P sites may strike cord with a judge by reasoning by analogy.

The sticky part, however, is that The Pirate Bay doesn’t host any of those files — like Google, the site is nothing but an index of where those files are located. The actual files are hosted on millions of computers around the world, some of which may only have a small part of the original file, thanks to the magic of the peer-to-peer technology known as BitTorrent. . . . In other words, The Pirate Bay is only pointing Internet users to those files, in the same way that Google and Yahoo and MSN point users to webpages. Is that — or should that be — a crime?

Just as no Judge wants to enter a judgement against libraries, it is not likely that any Judge or jury currently thinks of Google as an company that should be held liable for merely “pointing.”

The article ends with a line which illustrates (the societal norms discussed in class) that the founders of the site do not think what they are doing is wrong:

The founders of the service say their tracker will remain operating even if they are found guilty.

I have to confess, I’m not a fan of baseball, nor laws based upon its principles. A green paper in the UK (released by the government showing policy direction) has suggested that ISPs are going to be required to cancel connections of persistent copyright infringers. Your first offence gets you an email, your second a suspension and the third gets you kicked off your ISP. The details are as yet unclear, such as how disputes are to be settled and whether ISPs will share information about infringers, but it sounds to me like one of the most extensive and intrusive government efforts to regulate online behaviour I’ve come across. Lots of questions remain unanswered, such as the length of suspensions and the outright bans. One thought that occurs to me is that if this applies to University ISPs the effect could be huge, with no alternative provider in the University accommodation I stayed in for 4 years it really would have been 3 strikes and you’re out. The problems of erroneous reporting and detection would also be huge, if not insurmountable. All in all, its just not cricket.

Times Online article

Recap from last week:
-everybody but one person has downloaded stuff online.
Reasons why it’s OK:
-no obligation of fairness to record companies
-not like taking an actual thing/ “information wants to be free”
-necessity-type arguments (needed it for class, artists I like don’t get wide distribution)

Perfect DRM/ good pricing: a good thing?
Copyright underenforcement in some areas, like animations involving video games – free advertising for them. “Permissive use”/ “implied license.” Could be casualty of perfect control/good pricing.

Possible future scenario: Fisher Ch.3 – perfectly enforced “fairness.” Utopian or dystopian scenario?

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There’s a terrific article in the NYT about Lessig’s Fair Use Project’s involvement in defending a small publisher who brought out a Harry Potter encyclopedia. When the publisher went from Web to print, and from free to for-money, the Potter folks sued, saying it’s unfair. The author, Joe Nocera, says:

For, as Mr. Lessig points out, anybody who owns a computer can now create content that is based on someone else’s creation. Indeed, we do all the time, by posting content on Facebook, on YouTube, everywhere on the Internet. If the creation of that content is deemed to be a violation of copyright, “then we have a whole generation of criminals,” said Mr. Lessig — which is terribly corrosive to society. But if it is fair use, as it ought to be, then it becomes something quite healthy — new forms of free expression and creativity.

He concludes on quite an optimistic note.

Since our class I had a thought about one of the deeper implications that “stealing music online” gives rise to for intellectual property law and theory. This is the move to perfect intellectual property. By this I mean intellectual property that is for all intents and purposes completely intangible. Digital storage and transmission of copyright material is so disruptive not only because it allows perfect copies and non rivalrous use but because it finally cuts the cord between tangible property an intellectual property. Traditionally copyright material had to be expressed in some way in the physical world if one was to own it (I’ll come to tv and radio below). This could take the form of books, vinyl records, cassettes and cds. Thus the intangible is made tangible and by a process of sublimation an intellectual property right becomes linked to and valued as a tangible property right. Breaking this link makes intellectual property stand on its own and defend itself on its own merits, without the help of our seemingly hard wired propensity to favour protection of property rights at all costs. And rightly so.

I mentioned tv and radio above because I think this illustrates my point to some extent. These are two mediums by which intellectual property is transmitted without the use of a tangible carrier. Do we have a different attitude to copyright in these two mediums? I think we do. Recording from the television and removing the ads to watch at a later date or even recording songs from the radio onto a cassestte (happy days!) just doesn’t seem as wrong as stealing from a shop. To be sure the original broadcast is usually paid for indirectly by advertisements but perhaps its not the fact that it was originally free that assuages our moral conscience. Perhaps its because intellectual property without its tangible property carrier is simply not the same kind of property at all.

This post is really a round about way of stating the obvious: intellectual property is not the same as tangible property. I just think the distinction may go to expose something deeper that is wrong with intellectual property law as it currently stands, or at least might tell us that the argument for intellectual property as a concept needs to be made more clearly and prominently.

The recording industry is now suggesting that copyright filters be imposed on end-users’ machines. This is yet another case where the center/end distinction seems to me to be difficult to apply. If all machines were, through law or market forces, to include copyright filters, should we say that the filter is violating the end-to-end principle? Law and markets can create the effect of center-based alterations without ever actually touching the center.

Of course, that leaves untouched the question of whether we think end-based copyright filters are a good idea.

I was thinking about our last class discussion on copyright.

The traditional justification for having copyright, at least in the “offline world”, is to give creators the incentive to create. The question really is whether the web is so vastly different from our offline world such that this conventional justification is no longer so compelling.

As discussed in class, Reeve (quoted in CODE 2.0) thinks that it is exceptionally difficult in cyberspace to distinguish between legitimate and illegitimate uses of copyrighted material. It therefore seems most cost-effective to allow the owner to define access.

It seems that there are a few other factors that make the web unique and indicate that the default mode on the web should be “openness”:

a) The end-to-end nature of the web: The web seems to symbolize a forum in which there is free flow and exchange of information. Placing impediments to using  works may impede such exchange of information and the flourishing of creativity. There is an article (http://www.informationweek.com/news/showArticle.jhtml?articleID=202802308) showing how copyright can make it too costly for applications like Youtube to be provided to web users.

b) Difficulty in detecting breaches of copyrighted work and enforcing remedies for such breaches;

c) Low cost for artists to publish their works on the web. It does not seem fair for artists to profit from enforcing copyright.

 
These factors cumulatively suggest that there should be a different copyright regime on the web. I think it is quite evident that there must still be some form of protection for artists so that they are given due credit for their works. The level of copyright protection should however not be so excessive that it undermines the advantages provided by the web. I think it is also apparent from our discussion concerning online music that most of us feel strongly that copyright should not be a tool for profiting. While recognition has to be given to artist, the price for obtaining permission to copy should not be prohibitive. So I personally am in favor of a more open copyright regime on the web.

There’s a very interesting discussion at the NY Times blog with a Verizon person about why they’re not going to join AT&T in blocking packets that they algorithmically decide violate copyright.

Besides bearing on our copyright discussions, this also also bears on the question of the import and extent of the end-to-end argument. If there were only one carrier (note the hypothetical), if that carrier decided to inspect packets and treat them differently, that would not be occurring at the architectural level, but one could still argue that it violates the end-to-end principle. (Of course, the e2e principle is not inviolable; as the e2e paper itself says, it’s a design principle that should be violated when there are good reasons to.)

[Due to the format of the class (and maybe also my personal definition of what a liveblog is) I chose not to try to condense the discussion we had, trying to preserve as much of it as possible. Sorry for the resultant length! Also, there are probably some inaccuracies in here, apologies in advance, and feel free to comment if I mangled one of your points.]

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