The End of Copyright's Social Contract

Copyright is based on a social contract. In return for a government-enforced, time-limited monopoly, artists create - the idea being that without that monopoly, it would not be worth their while to produce works because copies could be made that would undermine their value and hence the artists' livelihood.

Of course, this flies in the face of the fact that Shakespeare, Rembrandt, Bach and all the rest enjoyed no copyright in their works, and yet, demonstrably, produced rather a lot of rather good stuff.

Ah, yes, but, the content industry will retort: things are different now, etc. etc. The trouble is, we have no way of testing whether things really are different now - in other words, whether, in the absence of copyright, people would carry on creating.

Well, actually we do, because the almost universal sharing of music and other content is effectively creating a copyright-free world for digital artefacts. For recorded music, which is now overwhelmingly digital, that means what is more or less a copyright-free world. And so, following the logic of the industry, music creativity should be falling through the floor as musicians everywhere throw up their hands in despair, crying: "oh, where is my old quid pro quo?"

Given this interesting situation, it would of course be fascinating to know whether that is the case or not. That's a non-trivial piece of research for a number of reasons, but Joel Waldfogel at The Carlson School and Department of Economics, University of Minnesota has made a valiant effort to deal with the problems, and published his results [.pdf]:

In the decade since Napster, most observers have concluded that file-sharing undermines the protection that copyright affords recorded music. What matters for consumers, however, is not sellers’ revenue but whether the diminished appropriability will reduce the availability of new recorded works. The legal monopoly created by copyright is justified by its encouragement of the creation of new works, but there is little evidence on this relationship. The file-sharing era can be viewed as a large-scale experiment allowing us to check whether diminished appropriability stems the supply of new works. Using a novel dataset on the supply of new recorded music derived from retrospective critical assessments of music such best-of-the-decade lists, we compare post-Napster album supply to 1) its pre-Napster level, 2) pre-Napster trends, and 3) a possible control, new song supply following the iTunes Music Store’s revitalization of the single. We find no evidence that recent changes in appropriability have affected the quantity of new, acclaimed recorded music or new artists coming to market. We reconcile a stable flow of new works in the face of decreased demand with evidence on reduced costs of bringing works to market and a growing role of independent labels.

Looks like the social contract can now be torn up: even without that copyright monopoly - and remember, monopolies are bad things - artists are still creating.

Now, one study is hardly definitive proof, but it's suggestive to say the least. In particular, taken together with all the other evidence that sharing really doesn't hurt the music industry overall, it provides another shiny nail for the copryight maximalists' coffin. (Via Michael Geist.)

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Should the Music Industry Pay ISPs for Piracy?

In the wake of its “success” in pushing through Digital Economy Act, the British music industry is hoping to move on to the next stage: using it as a lever to get more money out of the system (even though the music industry is currently thriving).

The UK royalties collector PRS For Music has just published a rough blueprint [.pdf] for how this might be done, entitled: “Moving Digital Britain Forward, without leaving Creative Britain behind”. It's a fascinating document, and merits close reading.

As the title suggests, there are essentially just two players in this analysis: the music industry, and the ISPs (the public are obviously irrelevant here). The ISPs are no longer lowly bit-mules, mindlessly obeying Net neutrality by conveying digital files hither and thither without a thought as to their content, but are to be regarded as “Next Generation Broadcasters”:

operators of networks that connect supply with demand in a market for media.

That's important, of course, because it reframes the debate about file-sharing in terms of old technology: radio and TV. It permits the argument to be made that such “broadcasters” have to pay for the privilege of broadcasting all that content – just like the radio and TV broadcasters do.

The paper makes a very good point about the increased capacity networks that are being built:

One of the few studies to be published comes from MoneySupermarket, who found that more than a third of consumers surveyed believe the advent of high-speed, next-generation broadband services would encourage greater piracy and make it easier to illegally download content. The report concluded that: ‘Illegal downloading is already a big problem for the likes of the music and film industries ... with superfast broadband packages set to become commonplace, the problem seems likely to get worse.’

I think that's true, but the analysis dismisses too easily the main reason for this:

Perhaps, like iTunes, these legal venues could increase the range of content on offer, but this increase comes at a high cost when already at a significant disadvantage to “free”.

That's a vicious circle: music companies won't offer more content to compete with free, unauthorised sites because it would cost too much, which means that there won't be so much authorised content as unauthorised, which means that people will continue to be forced to opt for unauthorised downloads, which music companies aren't willing to compete with.

The report even mentions iTunes, which backs up this view: for once iTunes made available most of the content previously only found on unauthorised sites, it started raking the money in. And yet the report chooses to ignore this rare data point, and stick with its circularity – the reason being, it has a Cunning Plan. The ISPs – sorry, Next Generation Broadcasters – must pay:

If changes in the scale of unlicensed media can be measured, we can put a price on this spillover to bridge the value gap. Simply stated, at some date a price would be placed on the indexed measure of unlicensed media on ISP networks. If at a later date the measure of infringement increases, the value transferred (from ISP to rightsholders) would increase accordingly.

Conversely, were the measure of infringement to decrease, the amount transferred would decrease accordingly. The options for pricing such spillovers should be the subject of further research.

They should indeed: I think this is a splendid idea – if we could make just one tiny tweak.

For this to be fair, we must of course make sure that we capture all the effects of unauthorised file sharing so that its true economic effect is measured. That is, we shouldn't be measuring anything so crude and vague as the flow of allegedly unauthorised copyright materials across a network. After all, it's impossible to say whether some of that flow might be permissible uses, and then there's the question of whether people would have bought the equivalent content etc.

Instead, what needs to be ascertained is the knock-on economic effects of that file-sharing in the *real world*. And of course, one very important aspect that has to be included in that is the fact that those who share files buy more, not less, music. As Mike Masnick explains through a splendid series of links:

Study after study after study after study after study after study has shown the exact opposite -- noting that people who file share tend to be bigger music fans, and are more likely to spend on music.

So I think we should try out this report's suggestion that ISPs should pay for the consequences of their users' actions – provided the recorded industry pays the ISPs if it should turn out (as those six reports linked to by Masnick might suggest) that file sharing actually *increases* the sales of recorded music. What could be fairer than that?

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Spotify: Make Money with Analogue Scarcity

This isn't another post about Spotify: it's a perceptive comment made by the company's CEO during an interview:

Q: We’ve heard services like Spotify people say “oh no we’re not going to buy music any more”. The idea of geting people to play a monthly fee, that seems promising. Why would someone buy something?

A: I think we’re going that route. But we find that music I really love, I tend to want to buy it. Not necessarily a plastic disk, but a special edition for an artist I really like, I’m more than happy to pay $100 for a box set with a t-shirt in it, liner notes. Another person may be willing to pay for a live edition with extended tracks. Or pay for a live concert experience. The reality of the music industry today is that there isn’t one biz model. It’s about figuring out how to use downloads, streaming, promotion, ticketing, all these things. I don’t think streaming music is stream.. with Spotify people label us ‘free’ music. But people pay, either with time (adverts, which are targeting), or actually paying for the service.

Of course, this is exactly what many of us have been saying for a while, and it's good that someone behind one of the more interesting new offerings seems to get this.

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Why Creativity Needs Shorter Copyright Terms

In response to a tweet of mine about shortening copyright to stimulate creativity, someone questioned the logic. It's an important point, so it seems useful to do some thinking out loud on the subject.

First, I should probably address the question of whether *longer* copyright stimulates creativity. The basic argument seems to be that longer copyright terms mean greater incentives, which means greater creativity. But does anyone seriously think about the fact that their creations will still be in copyright 69 years after their death? It won't do them any good, and probably won't do their descendants much good either, since the income at this point is generally close to zero.

Indeed, speaking as an author, I know that practically all my income from writing comes within the first couple of years; after that, it's dribs and drabs. If my copyright were cut down to even five years, it would make only a marginal difference to my total remuneration.

Now, clearly I'm not JK Rowling, but the point is, neither are 99.99999% of authors: I know from talking to other run-of-the mill writers that the same holds for them, too. So in practical terms, reducing the copyright term would have little effect on the money that most creators earned as result.

But let's look at the main part of my claim: that reducing copyright's term would encourage creativity. This is based on the rough syllogism that all artists draw on their predecessors in some way; making more prior creativity available would allow more artists to draw on it in more ways; and so this would increase overall creativity.

For the first assertion, look at history. Painters once began by mixing paints in another artist's studio, then drawing unimportant bits in his (usually his) works, learning how to emulate his style. Then they gradually painted more important bits in the style of that artist, often doing the low-cost jobs or rush jobs that he didn't have time or inclination to execute. Then, one day, that apprentice would set up on his (usually his) own, building on all the tricks and techniques he had learned from his master, but gradually evolving his own style.

Today, would-be artists tend not to become apprentices in the same way. Instead, they typically go to art school, where they learn to *copy* the masters in order to learn their techniques. Often you see them doing this in art galleries, as they strive to reproduce the exact same effect in their own copy. It teaches them the basics of painting that they can then build on in their own work.

In music, something very similar happens: journeyman composers write pieces in the style of the acknowledged masters, often copying their themes and structure very closely. This is true even for extreme geniuses. For example, in order to learn how to write in the new early classical style, the eight-year-old Mozart arranged three piano sonatas from J C Bach's Op. 5 as keyboard concertos.

Mozart also "borrowed" entire themes - most famously in the overture to The Magic Flute, where he takes a simple tune from a piano sonata by Clementi, and transforms it. Some composers did this on a regular basis. Handel, in particular, was quite unscrupulous in taking themes from fellow composers, and turning them into other, rather better, works. Moreover, the widely-used form of musical variations is based generally on taking a well-known theme and subjecting it to various transformations.

That was in the past, when art was an analogue artefact. Copying took place through trying to reproduce an artistic effect, or by borrowing musical themes etc. Today, in the digital age, copying is not such an incidental act, but central to how we use computers. When we access something online, we copy it to our computers (even audio streaming has to be assembled into copies of small chunks of sound before we can hear it).

Digital plasticity - the ability to compute with any content - makes the clumsy copying and learning processes of the past trivially easy. A child can take a digital image of a work of art and cut and paste elements of it into his or her own work; anyone can sample music, distort it and mix it with their own; texts can be excerpted and juxtaposed with others drawn from very diverse backgrounds to create mosaics of meaning.

All these amazingly rich and innovative things are now very easy to do practically, but the possibilities of doing so are stymied by laws that were drawn up for an analogue age. Those laws were not designed to forbid artists from learning from existing creations, but to stop booksellers producing unauthorised copies - a totally different issue. The idea of using just part of a work was not really a concern. But it is today, when the cut and paste metaphor is central to the digital world. That is why we need to reduce copyright to the bare minimum, so that the legal obstacles to creating in this new, inherently digital way, are removed.

If we don't, one of two things will happen. Either we will fail to realise the full creative potential of computing, or else the younger generation of artists will simply ignore the law. Either is clearly unsatisfactory. What is needed is a copyright regime that is balanced. That is far from being the case today. As the media industry (sic) ratchets up copyright terms again and again, creation has become subservient to the corporation, and the creators are cut off from their past - and hence future.

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Time for MPs to Face the Music on Sharing

Another ill-informed opinion piece from a politician about file-sharing:

Platinum selling artists Radiohead and Pink Floyd have said they are happy to see their music used as a sort of digital loss leader to sell other products, but these groups are the exception rather than the rule. The average musician earns less than £15,000 a year and losing royalties makes the day-to-day struggle even harder for them.

Those average musicians - just like average authors - will tell you the biggest problem they face is getting known, not getting paid. What musicians, and authors like me, struggle with is to get the word out about our stuff amongst the million other offerings out there. Believe it or not, simply having a distributor does not solve that problem: in my experience they pretty much expect *you* to do the marketing.

Paradoxical as it may seem, giving your stuff away is one of the best ways to make money. Not necessarily from the content - although that is possible, too, for example by selling physical CDs/books to people who have digital versions - but from ancillary revenue. This is not to be sneezed at: *all* the top pop musicians make much more from their live appearances than they do from their CDs (which is why an artist like Prince *gives away* CDs to people who attend his concerts).

As the quotation above concedes, giving away stuff isn't a difficulty for the top artists, and as I've indicated, giving it away is precisely the best way for less well-known musicians to break out of their low-income ghetto.

So, really, the only people who lose out from the sharing of music online are the record companies, who find themselves without a role. But the idea that civil liberties should be curtailed simply to keep afloat a dying - and widely-hated, both by artists and consumers - industry, should be self-evidently absurd.

It's worrying that the author of this latest simplistic attack on file-sharing, apparently "a former member of Runrig", is unable to see this. He and other demagogues that attack sharing for whatever reason would do well to look at the facts, and not glibly regurgitate the propaganda of the industry and its lobbyists.

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Show Your Ardour for Ardour

Ardour is a fine open source music program; but like many fine open source programs, it has a problem: money - lack of it. In order to continue to improve the code, the Arbour team ideally needs dosh to pay for programmers and other such handy things; but it's not really happening:

As of now, June 25th, the financial side of things is not looking so good. Last month (May) didn't quite make the $4500 goal, and this month looks certain to fall short by quite a significant margin. There are currently 5-1/2 days left this month, and 28% of the target is still not met. There are no companies backing this project at this time, so its totally incumbent on those of you who use the program and have not yet helped pay to support it to step up and do the right thing. Thanks to everyone who has paid for their contributions and support.

Ardour will continue in some sense even if I find other work, and I believe that Carl, Dave, Hans and others will likely keep up some of their efforts anyway. Since the new download system started, there have been about 9000 OS X downloads and 6000 source code downloads. Less than 3% of the OS X downloads and only three source code downloads were associated with up-front payment, though it seems likely than many users donated after the fact. With a user-base like that, it seems to me that it should be possible to pay one full-time north american developer and to offer occasional payments to others for their outstanding work. What do you think?

Ardour is hardly the only project with these problems, which means that the open source world faces a larger issue: how to raise funds to pay for work that isn't being carried out mostly in bedrooms. It's not something many are thinking about (Matt Asay is an honourable exception), so it's not likely to get solved any time soon - which leaves Ardour in a bit of a pickle. Suggestions and contributions welcome.... (Via Leslie P. Polzer.)

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Sharing: "Totally Cool"

Someone else who gets it:

“It’s ok, if one person buys it, it’s totally cool, burn it up, share it with your friends, I don’t care. I don’t care how you hear it as long as you hear it. As long as you come to my show, and have a great time listening to the live show it’s totally cool. I don’t mind. I’m happy that they hear it.”

Time to Face the Music

I've been rabbiting on about this for some time; now The Economist is saying it too, so it must be true:

Seven years ago musicians derived two-thirds of their income, via record labels, from pre-recorded music, with the other one-third coming from concert tours, merchandise and endorsements, according to the Music Managers Forum, a trade group in London. But today those proportions have been reversed—cutting the labels off from the industry's biggest and fastest-growing sources of revenue. Concert-ticket sales in North America alone increased from $1.7 billion in 2000 to over $3.1 billion last year, according to Pollstar, a trade magazine.

...

The logical conclusion is for artists to give away their music as a promotional tool. Some are doing just that. This week Prince announced that his new album, “Planet Earth”, will be given away in Britain for free with the Mail on Sunday, a national newspaper, on July 15th. (For years Prince has made far more money from live performances than from album sales; he was the industry's top earner in 2004.) Outraged British music retailers were quick to condemn the idea. As far as the record industry is concerned, it is madness. But for the music industry, it could well be the shape of things to come.

How Daft Can You Get?

Let me count the ways:

David Cameron has pledged to extend copyright on music to 70 years - in exchange for an effort by music bosses to curb violent music and imagery.

What on earth has one got to do with the other? How will "music bosses" "curb" this stuff? What happens if they "curb" only some of it? Or if only some of them curb it? Do they all get an extension to 63 and a bit years? Or do some get any extension to 70, but the others not? Talk about hare-brained....

Making Music, Making Money

I've written about this idea before, but it's good to see further evidence that you can make plenty of money from music without worrying about fans copying your songs:

Sweaty rock gigs and hippy festivals have given way to a golden age of live music in the UK.

...

"Live music is the ultimate experience. It's not bootleggable, you can't replicate it, you can't steal it, and you can't mimic that experience of actually standing at a gig - the roar of the crowd, the smell of the greasepaint."

RIAA, are you listening?

The Sound of Music

Here's an interesting idea:

Use Linux or Microsoft Windows, the open source sndpeek program, and a simple Perl script to read specific sequences of tonal events -- literally whistling, humming, or singing at your computer -- and run commands based on those tones. Give your computer a short low whistle to check your e-mail or unlock your your screensaver with the opening bars of Beethoven's Fifth Symphony. Whistle while you work for higher efficiency.

(Via LXer.)

Speaking up for the Commons of Silence

Try explaining to people that silence is a commons that needs to be defended, and you will get some blank looks, I suspect. But put in these terms, and they might begin to understand the issues:

Christmas music in shops is "torture", the "forgotten pollutant" which shop workers must be able to silence for the sake of their sanity, according to activists, trade unions and a peer. The government is being asked to investigate the problem.

Sharing: As Natural as Childhood

Children are increasingly swapping music via mobile phones, often without realising they can be breaking the law.

A survey of almost 1,500 eight to 13-year-olds found almost a third shared music via their mobiles.

...

Almost a half (45%) of children who said they did not swap music via their phones said they would like to.

Inevitably this story is provoking howls from the music industry. But it teaches us two things.

First, that - just as RMS has always said - sharing is natural, part of our genetic make-up that allows us to function as social beings. And secondly, that this is an opportunity, not a threat: these children are doing free marketing for the music companies, spreading the word about cool music. Copyright owners should rejoice, not fret about it - and move on to coming up with a way to make some money selling more music off the back of all this fantastic viral distribution.

No Copyright Extension for Brit Music

I can't believe it:

The copyright on sound recordings will not be extended after an independent review commissioned by the Treasury.

Is that the sound of an airborne porker?

Open Music Lives Happily Ever After

Now here's a heartening tale of musicians doing all kinds of creative things with CC music and getting their just desserts - including 15 minutes of fame with a certain lonelygirl15, and heaps of dosh.

Getting Creative with Money

The standard cry is: How do you make money from free? Well, Jamendo has a few ideas:

Jamendo sells advertising space on the jamendo.com web site and in the low-fi streamed music. We guarantee the hi-fi "peer-to-peer" music to be ad-free. This revenue helps us covering the bandwidth cost.

...

Jamendo drives lots of traffic to the artist's official web site as well, which helps to sell more physical CDs (if the artist sells CDs from their web site). Also, Jamendo's blogging capabilities help artists to spread in the blogosphere.

Finally, we are developing more tools to distribute Creative Commons music commercially. The revenue split will be somewhere around 80/20, with 80 for the artist.

(Via Creative Commons Blog.)

WikiMusic

In principle, open content applies to all kinds of materials, not just words. But it's certainly true that most open content is text-based. The basic problem is coming up with a framework that allows collaboration with other kinds of media. So here's an idea: WikiMusic.

The idea here is collaborative asynchronous recording of music, wherin you record your parts to a music editing software file, then upload it for others to add to. Each version of the file can be left online, so that people can revert back to older versions.

Now That's What I Call EMusic

Good to see that the world's best music download service is coming to this side of the pond. Now if they only had a few duduk tunes....

It's a Hit

I know little about baseball (or, indeed, any other sport), and care even less. But this Techdirt story about baseball statistics has some interesting aspects. The basic issue was whether anybody owns the factual information about baseball games. Obviously, you can't, because you can't copyright facts, but that didn't stop some witless, greedy company from trying (and failing).

What I found suggestive was the following passage:

baseball (and other sports) have made a lucrative practice out of licensing such information to video game makers as well -- and it seems likely this ruling would apply to them as well. Of course, if MLB were smart, they're view this as a good thing. Getting more real info about real players out there in fantasy and video games should lead to more fans and more interest in the overall sport -- leading to many more opportunities to make money.

So, here we have the sensible suggestion that organisations should be happy for certain kinds of digital information - in this case baseball stats - to be circulating in the public domain, because it will drive people to attend the real games in the analogue world.

For me, this has close parallels with music. It seems increasingly clear to me that the best thing for the music industry to do is to regard digital copies of songs as publicity. If they are passed around for free, well and good, because this will drive more people to concerts - the analogue instantiation of that music - which is increasingly where the money is.

The great thing with this model is that you can't copy the experience of a concert - you really have to be there (well, at least until virtual reality technology makes some serious advances). No more "piracy", and no need for punitive law cases. Result: it's a hit with everyone.

Pin the eTail on the eDonkey

I thought that the Germans were tech-savvy, and then they go and do this. Still, people must be relieved that there is so little crime in Germany that their police have nothing better to do than acting as the heavy mob of the "entertainment" industry.

Strange, though, that eMusic is doing so well despite that fact that its music is completely defenceless in the face of cutlass-wielding piratical types, while the German recording industry, which spends most of its time trying to protect its monetized corporate intellectual property assets - sorry, music - fares so badly. Now, why could that be? (Via TechDirt.)