Digital Freedom

TuneCore Looks to Monetize Website Traffic for Artists

noreply@blogger.com (Digital Freedom Campaign) — Wed, 10 Dec 2008 18:32:00 +0000

At the Digital Freedom Campaign, we love TuneCore (totally platonic love, but love nonetheless). If you aren't familiar with the company, a short description of their current model, as described by Ars Technica, goes like this: "TuneCore is best known for its fee-based distribution system that lets you sell music and videos through iTunes, eMusic, Rhapsody, and other websites. After paying a small yearly fee, TuneCore customers receive all revenue from sales and retain all rights to their masters. TuneCore is best known for its flat $10 deal to distribute a single to 11 online stores."

This is a wonderfully simple and effective tool for independent artists to access the same digital distribution channels as major-label artists, at almost no cost and with no need to give up the rights to their recordings. Now the company is taking this model to the next level by giving bands the chance to monetize their website traffic by, as this Ars Technica article describes, having "sponsors pay bands what TuneCore calls 'the equivalent of a 'banner ad fee' to drive traffic to their web site.' Artists can promote free songs at their web sites, encouraging fans to visit the corporate sponsor to download the songs. It's up to the band to decide how they want to promote that link and get people to those sites whether by displaying an adbox or in-blog links....The traffic fees will be split between the musicians, based on the number of downloads generated. More fans means more downloads, which means more money for the band in the end. It's basically a way to monetize fame outside the traditional boundaries of record labels. "

Simply brilliant. Kudos to TuneCore for their revolutionary efforts!

Change.gov Content Now Under Creative Commons License

noreply@blogger.com (Digital Freedom Campaign) — Fri, 05 Dec 2008 19:13:00 +0000

By Richard Esguerra
Electronic Frontier Foundation

In the last few days, President-elect Obama's transition team took a significant stride towards a more open government by licensing the content of Change.gov under a Creative Commons Attribution license. Using that license essentially means that the transition team is allowing others to freely share and remix what's posted there, provided that reposts are attributed to Change.gov. The move is a victory for the public and the many advocates for a more wired, participatory democracy.

It's also another reminder of the importance of Creative Commons, which affords creators an opportunity to opt for something less than Disney-style copyright restrictions. By embracing a CC license, the Obama team sets a valuable example for others in government, many of whom may have defaulted to "all rights reserved" without considering other options.

While Change.gov has experienced some growing pains, the transition team appears to be making a real effort to use the website as a legitimate location for its conversation with the American public. The preview post of the President-elect's planned weekly address (posted on Thanksgiving Day) includes links to multiple sources — an embedded YouTube video, a link to the same video posted to Yahoo! Video, and a high-resolution .mov file — with the Creative Commons license guaranteeing that the public can freely share, remix, comment, and report on the President-elect's statement.

The switch to Creative Commons licensing is encouraging and we hope that it is a herald of more pro-open government changes to come.

Do 20 Million HDTV's Matter?

noreply@blogger.com (Digital Freedom Campaign) — Thu, 04 Dec 2008 19:12:00 +0000

By Jef Pearlman
Public Knowledge

Remember Selectable Output Control? It’s the issue where the MPAA petitioned the FCC for the right to turn off any and all of the outputs on your cable box — especially those pesky high definition analog connections — if they move up the Video-on-Demand (VoD) release date on movies. In our original filing opposing the petition, we cited an article which said that 11 million HDTVs currently in use have only analog inputs, and would surely be cut off by the MPAA. News Corp shot back, saying that according to the Consumer Electronics Association (CEA), there were only 4 million such TVs out there. Who’s right? Apparently, neither of us. Yesterday, CEA filed a letter with the FCC saying that there are over 20 million HDTVs currently in use which only have analog inputs, and if the petition were granted, would “no longer function as they did when originally purchased by U.S. consumers.”

That’s not all, of course; these numbers actually underestimate the problem. Not only will HDTVs with only analog inputs not be able to view this content, but anyone whose receiver, DVR, Slingbox, or other home entertainment equipment relies on high definition analog will be cut off. If that wasn’t enough, the MPAA wants the ability to turn of the digital outputs as well, giving them the potential to cut off everyone who owns a current TV. And finally, lest we forget, there’s just three months until the DTV transition hits the airwaves. Now is not the time to add to the consumer confusion which we already know is coming. And it will never be the time to give content producers veto power over consumer electronics or punish early adopters by disabling their equipment.

Can a Movie Be Highly Pirated and Still Top the Box Office?

noreply@blogger.com (Digital Freedom Campaign) — Tue, 25 Nov 2008 16:26:00 +0000

The answer appears to be yes. In a great Techdirt article by Mike Masnick, it is revealed that The Dark Knight was simultaneously the highest grossing and most pirated film of the year. But how is this possible? After all, the movie industry is claiming that the reason The Dark Knight made so much money was because of their anti-piracy efforts. The movie industry's willful ignorance of what actually drives sales is not only stunning, but has a real effect on their resource allocation decisions.

Using the misinformation that anti-piracy efforts are what drive higher movie sales, a studio executive would logically invest more money in anti-piracy efforts, and less in the movie's actual development. For all the confused studio executives out there we offer a bit of useful, albeit unsolicited advice: Invest your money in making movies that people want to watch. Or said another way - build it and they will come.

The Knights who say "Free"

noreply@blogger.com (Digital Freedom Campaign) — Thu, 20 Nov 2008 21:18:00 +0000

It’s a great day for Python fans -- Monty Python has posted vast collection of best content on their own YouTube channel. This simultaneously undercuts unauthorized sites and drives traffic to the Python site where fans can by books, cds, t-shirts etc. The strategy of giving away infinite goods to promote scarce goods has worked with music, as proven by Nine Inch Nails and Radiohead.

Like these two bands, Monty Python boasts a loyal, semi-fanatical fan base. There is every reason to think a business plan based on giving fans what they want, rather than suing them, will work for the Pythons as well.

“Always look on the bright side of life”, indeed.

Content vs. Culture?

noreply@blogger.com (Digital Freedom Campaign) — Tue, 18 Nov 2008 14:34:00 +0000

Wanted to point everyone in the direction of a thought-provoking article from Cory Doctorow, the founder of Craphound.com and co-editor of BoingBoing, titled "Why I Copyfight." The article makes the argument that "Content isn't king: culture is," and that "The existence of culture is why copyright is valuable."

The point Cory is making is that copyright exists because our culture creates the market for creative works, through the sharing of information, such as a song or book recommendation to a friend. This sort of information sharing is what our culture is made up of and is what creates the market for creative works.

The Digital Freedom Campaign does not condone or encourage copyright infringement of any kind, but we do see a fundamental need for our laws to ensure that this sort of information sharing can continue in the digital age - so that our culture, and consequentially the market for creative works, can survive and thrive.

Check Out NYMusicCopyright.org

noreply@blogger.com (Digital Freedom Campaign) — Thu, 13 Nov 2008 14:18:00 +0000

Our partners at Public Knowledge launched NYMusicCopyright.org yesterday, a site dedicated to copyright issues as they affect musicians. The site is funded by a grant from the New York State Music Fund. Gigi Sohn, the President and co-founder of Public Knowledge says the site is "dedicated to helping musicians understand a very complicated copyright landscape," - a worthy and necessary objective. The Digital Freedom Campaign applauds Public Knowledge's efforts here, and encourage all our readers to check it out!

Election Puts Tech and Movies On Opposite Paths

noreply@blogger.com (Digital Freedom Campaign) — Fri, 07 Nov 2008 14:50:00 +0000

By Art Brodsky
Public Knowledge

Two industries find themselves in different directions after yesterday’s election. The Internet/tech industry is on the way up. The big content companies are at a crossroads, stuck in neutral while being buffeted by lots of competing forces.

The Internet/tech industry won two important votes on Tuesday. The election of Barak Obama puts into play an ambitious and progressive technology policy agenda that starts off with “protect the openness of the Internet.” The platform is perfectly clear: “A key reason the Internet has been such a success is because it is the most open network in history. It needs to stay that way. Barack Obama strongly supports the principle of network neutrality to preserve the benefits of open competition on the Internet.”

The Obama/Biden plan also includes a goal of leading the world in broadband deployment through use of the Universal Service Fund, tax and loan incentives. There is also the much-discussed promise to appoint a Chief Technology Officer for the government. It’s uncertain at this point what the job will entail, but it’s a good bet that the Internet/tech sector will have some say in how it’s shaped. That job may be one of the toughest in the Administration, herding all the federal agency “cats” in the same direction to make their technology more uniform.

Tech Agenda Fits With Obama’s

From top to bottom, the Obama/Biden plan has just about everything the tech/Internet industry could ask for. And now they have some political muscle to try to make it happen. Did we mention that Google Chairman Eric Schmidt appeared in Obama’s successful infomercial? That kind of visible support speaks volumes, overshadowing even Vint Cerf’s endorsement of Obama.

Coincidentally, earlier on Election Day, the Federal Communications Commission (FCC) gave the tech/Internet industry (along with its public-interest allies) another significant victory. The Commission overrode the protests of the broadcasting industry, Broadway, the National Football League and Dolly Parton to allow parts of the public’s airwaves that exist between TV channels to be used for unlicensed purposes. These “white spaces” are not used, but the broadcasters put up their normal fuss about interference, as did the theatre and other interests, who were concerned that devices in the white spaces might interfere with wireless microphones, many of which operate illegally.

Google, Microsoft, Dell, Motorola and the Information Technology Industry Council led the business side of the campaign. Significantly, groups like Public Knowledge, Free Press and the Media Access Project were major contributors in an effort that brought together a diverse group of supporters into an alliance to push for a platform for new services and choices for consumers.
Beating the broadcasters in a spectrum issue is always a big deal, because most of what the National Association of Broadcasters (NAB) does is defend spectrum against perceived interlopers. Make no mistake – simply because the FCC has decided something doesn’t mean it’s the end of the battle. The NAB will push for further administrative proceedings, probably a court challenge and some flak from Capitol Hill. On the other hand, the momentum is with the tech side, with the FCC’s decision in its pocket and an Administration committed to advancing a comprehensive agenda.

Big Media Is Fighting the Tide

Then there is the predicament of the big media companies. Hollywood is at a crossroads in the policy world as it decides how to leverage its usual influence within a Democratic Administration. In one direction is the traditional path of taking the offensive on perceived copyright wrongs. Hollywood will always push for tougher and tougher laws and usually gets what it wants. The Obama Administration will appoint an Intellectual Property “czar” as authorized by the Pro-IP bill earlier this year, and the chances are good that Hollywood will have a big voice in who gets picked.

But all of that activity is dedicated to preserving what they already have. It’s consolidating and playing defense. The alternative path is to try to look toward the future of the industry, and they aren’t doing that very well at all.

Dan Glickman, the president of the Motion Picture Association of America (MPAA), earlier this year came out squarely against Net Neutrality. He called it “regulating the Internet.” This is not “regulating the Internet.” It is restoring the principle of non-discrimination to the telecommunications network. Obama clearly sees the need to preserve that principle, and he’s got the backing of those who agree. The MPAA is on the other side of the argument now, going up against the resurgent Internet/tech industry and public interest groups.

Hollywood’s other major initiative is to search for copyrighted material online by having AT&T and other willing Internet Service Providers peek at everyone’s data packets. Perhaps MPAA should take a look at this part of the Obama platform: “Safeguard our Right to Privacy: The open information platforms of the 21st century can also tempt institutions to violate the privacy of citizens. As president, Barack Obama will strengthen privacy protections for the digital age and will harness the power of technology to hold government and business accountable for violations of personal privacy.”

So far, Hollywood has come out against an open, non-discriminatory Internet while favoring allowing telephone and cable companies to violate everyone’s privacy by searching for copyrighted content online. Neither of those policies is going to help the movie industry expand its audience or meet the demands of movie-goers. (Note: this applies to the big companies. Independent filmmakers have figured out they need an open Internet to survive.)
AT&T Sabotaging MPAA?

Ah, but Hollywood’s partners in crime have other ideas. AT&T recently announced it started a “trial” of bandwidth caps with its customers in Reno on Nov. 1. New customers will have a cap ranging from 20 GB per month to 150 GB per month, depending on the level of service to which they subscribe, while existing customer will have the 150 GB cap. Customers will be charged $1 for every GB over their allotment, and will get a warning when they approach the limit.

Those caps cause quite the dilemma for the big media companies. There’s every bit of evidence that consumers like the flexibility of watching movies and catching up on TV online. For example, in only a few months, Hulu, owned by NBC and Fox, has emerged as the sixth-largest video site, breaking the 105-million play stream in July, and serving 142 million in September, according to the Nielsen VideoCensus ratings. This is a site that has only been open to the public for business since March this year. Obviously, there is a market for high-quality, commercial entertainment video that can be monetized with ads and which has the capacity to screw up even more the TV ratings system. Netflix allows customers to stream movies, as does Amazon, Vuze, and dozens of other sites.

The question in the next few months is how many Americans are going to get to enjoy this new video source – and other video they may create. That’s because prior to AT&T making its announcement, Time Warner cable, and Comcast said they would implement bandwidth caps and another provider, Frontier Communications, said it might do so as well.

What, pray tell, will be the effect of these caps on the ability of movie companies to push their video to the Web? Comcast’s 250 GB cap won’t do anything to squelch video use in the near future, but only if the cap remains high and the data complexity of the video doesn’t increase appreciably. With the others, it’s not so certain. Let’s just say it probably won’t be helpful.
If the big media companies were smart, they would engage in telecommunications policy in a different way than they are now. They would back off of their opposition to Net Neutrality, ditch their alliance with AT&T. Instead, they would push for policies that would increase broadband deployment while increasing consumer choice. Those policies would help everyone, including big media. It would be nice, but we’re not counting on it.

Mark Hosler From Negativland Visits Capitol Hill

noreply@blogger.com (Digital Freedom Campaign) — Thu, 30 Oct 2008 20:16:00 +0000

Mark Hosler of Negativland, known as the father of the mashup movement came to Washington today to discuss fair use and digital technology with Members of Congress. We want to thank Mark for sharing his thoughts with Congress, and wanted to share with our readers the letter he left for the offices he visited. Come back soon, Mark! Washington needs you.

SOME THOUGHTS FOR CONGRESS ABOUT CREATIVITY AND COPYRIGHT

Hello Congressman, and thanks for letting me visit your offices here in Washington DC. As a founding member of the group Negativland, I am here to offer some perspectives on the surprising and exciting directions that art (music, video, web sites, etc.) and technology are taking in the world today, and how this new explosion of creativity is colliding with our sometimes outdated copyright laws. It's rare that artists get to speak to you on behalf of art, and so I want to thank you and the folks at The Digital Freedom Campaign for letting me visit you.

From our 28 years of being creators, observers, and consumers of music, art, and video, our group, Negativland, has witnessed incredible and wonderful shifts in the ways that the public is now able to create and distribute new work via digital technologies. We've also witnessed amazing changes in the way that money and corporate power has increasingly influenced policy, Congress, and the laws of our nation. At times, these changes are good. At other times, as I am sure you know, they benefit no one except the businesses lobbying you. We are concerned when this does not serve the public interest.

We believe that the healthy evolution of art and creativity has more value than simply counting how much money is lost or made. Art, science and technology have evolved because of how we all build upon the ideas and works of those who came before us. Copyright was always intended as a balancing act between giving ownership to creators so as to provide incentive to create new works, and allowing works to lapse into the public domain so that new ideas could develop. But our founding fathers could never have imagined the kind of world we live in today and the amazing new technologies that we are surrounded with - technologies that encourage and inspire us to interact with the world and create in unprecedented new ways. Protecting the author of a creative work is a good thing, but the benefits of copyright have been thrown off balance by the disproportionate influence of those with the most money. In fact, the more recent expansions of our nations copyright laws represents a break from our nations past and from the intentions of our own Constitution.

Did you know that copyright originally lasted only 14 years, and then all work fell into the public domain? The limit now is 70 years plus the life of the creator, meaning that nothing made in our lifetimes will fall into the public domain. This does not strike us as a very good public good. Even patents, which govern everything from industrial processes to pharmaceuticals, are given only a 20 year period before other manufacturers have access to them and this system seems to have done nothing to discourage innovation, creation, and especially remuneration in the fields of science and technology with this relatively short time span.

But art is neither science nor technology. Why make art out of things originated by others? We think that unless one is lucky enough to live on a remote island somewhere, we all live in a world surrounded by news, music, movies, ads, logos and messages. We are, quite literally, bombarded with media. It has always been a part of human nature to make art in response to and using material from the world around us. Nowadays, anyone with a small computer can easily make, remake, slice, dice, mix, and remix from any electronic media they can get their hands on. And because we can, we often do. Besides being fun, this kind of work creates a new type of cultural "conversation" that we can all have with the media around us, a conversation that we believe is healthy for a vibrant democracy that aspires to true freedom of speech.

Copying has gone on in art and music throughout the ages, from "quoting" in classical music compostions, to homage and parody. In much of the last century, these "appropriation" practices were the province of the avant-garde and the fine art world. But with the Internet, the ever-growing speed of computing, YouTube, MySpace, file-sharing, and other recent developments, they have now moved wholly and firmly into the mainstream. And yet our laws strive to criminalize all of this behavior. Ours is a world in which copyright has fallen woefully behind the curve of what the public actually wants to do with all that digital "stuff" out there. Millions world wide are creating art, music and video that incorporate elements of existing work - cutting and pasting bits and pieces of music, video, text, and pictures made by others to create new works. Millions of web pages now use various Creative Commons licenses to provide a nuanced alternative to traditionally black and white interpretations of copyright laws (one such license Negativland helped to write). The prevalence of these alternative copyright strategies is a testament to how many of your constituents are not at all happy with copyright as it stands now.

At this juncture, we feel it's necessary to point out that we support artists and creators being paid for the work they produce. We believe copyright was correctly intended as a judicious balance between providing for the creator as well as providing for the public commons, a balance which Negativland believes has been largely forgotten by the big businesses who produce and sell most media and entertainment. And we should also mention that all this creative re-use of material rarely if ever puts new work in economic competition with its sources. It does not pose any reasonable economic threat to the original source in any marketplace that they share. In an ideal world, Negativland would like to see the notion of Fair Use expanded to accommodate, accept, and protect these new practices.

I hope that my brief presentation today can give you some new perspective on this type of art and creativity, and that the next time some restrictive intellectual property bill crosses your desk or a lobbyist from the music or movie industry comes into your office to push for even stricter copy protection and more extreme legal punishment for those who break copyright laws, you'll keep in the mind the millions of folks out here whose creative efforts are criminalized by what has become, intentionally or not, a thoughtless and short sighted application of what were once some very well-intended laws protecting owners as well as the public commons.

Sincerely,

Mark Hosler
on behalf of Negativland, 10/28/08
mark@negativland.com

Digital Freedom Band Showcase Recap (With Pictures!)

noreply@blogger.com (Digital Freedom Campaign) — Mon, 27 Oct 2008 19:57:00 +0000

On Saturday night the Digital Freedom Campaign, along with TwoSyllable and True Panther Records, hosted a band showcase at the Lower East Side hotspot Piano's during the CMJ Music Marathon featuring Continental Divide, The Inlets, New Villager, Glasser, That Ghost, Suckers, Lemonade, Bell (DJ Set), and Special Guest DJ Pumpkin Patch. Wow, that was a mouthful. Anyway, the showcase went great, we had a packed house of die-hard music enthusiasts and Digital Freedom fans show up, even with all the rain, and the bands had Piano's hopping all night long.

Below are some pictures from the event, thanks to everyone who was able to make it, hope you had a great time!

Evidence of the Evolution of the Music Industry at CMJ

noreply@blogger.com (Digital Freedom Campaign) — Fri, 24 Oct 2008 19:01:00 +0000

By Nancy Tarr Wager
Artist and Label Relations
Digital Freedom Campaign

The CMJ Music Marathon in NYC is all a buzz with new applications from some of the music industry's largest social networks. I moderated the panel, "The Evolution of Social Networks" and the panelists included Chuck Wilson, ihiphop.com., Paul Burgess, Slope Music and Marketing, Ali Partovi, iLike.com and Bill Nguyen,Lala.com. The conversation was lively and largely focused on how to use and access some of the new applications and functions.

It was agreed by all panelists that social networks have revolutionized the way fans and artists connect. Paul Burgess, former Executive Vice President of TVT Records and new owner of Slope Music and Marketing, discussed the useful effectiveness in delivering streams of music. He joked about the dark ages when it would take a half an hour to receive an MP3 via email over a dial up connection. Today, streaming music is delivered with a click to untold numbers, connecting Artists with their fans and gathering new ones along the way. This marketing tool has greatly reduced marketing budgets for all labels and artists across the board and created a level playing field for musicians.

Bill Nguyen from Lala enthusiastically discussed the vast amount of music that his listeners are consuming. He stated, we have the numbers to prove it -- on our site, the more the fans listen the more they buy. One of Lala's newest features enables users to "upload" their entire music library to a private "digital locker" to be accessed by any digital device. A user can listen to this music in an ad-free environment as often as they want for free. However, to listen to new songs, the user will have to pony up 10 cents a listen. (The first listen is free, but after that a fee must be paid for each listen or the "stream" can also be purchased). You can check out all of the details here in a piece written by David Chartier. Nguyen stated that he believes he is adding "value" to music by creating these new applications.

This takes us over to Ali Partovi from iLike. iLike recently launched a slew of new innovative web applications for artists to spread their music wherever iLike lives on the web. By partnering with TuneCore, music is delivered to Rhapsody and Artists will earn royalties from music streamed from iLike applications on other networks such as Facebook, Bebo and Orkut. In addition, iLike has also developed a dashboard to help Artists "post once and publish everywhere". This helps Aritsts manage their pages on Facebook, iLike, iTunes*, Ticketmaster, and more... reaching 30 million music fans and 500,000 more every week.

Chuck Wilson, from ihiphop.com is also the CEO of BabyGrande Records. He has blended his passion for music and the Internet to create a social network that supports the hip hop with over 1 million user. Similar to iLike, you can also add the ihiphopapp application to your Facebook page.

Live from New York .....

noreply@blogger.com (Digital Freedom Campaign) — Thu, 23 Oct 2008 21:57:00 +0000

In the midst of the silly-season in Washington on Wednesday, I traveled back to my home-city, New York, to rap with some folks up at CMJ 2008. Before I get to the substance, though, let me tell you how wonderful it was to walk through Washington Square in the Fall. Not a lot better than that, and the NYU campus streets were filled with music lovers, so maybe there really isn't anything better than that.

Anyway, I was privileged to sit on this panel with some very thoughtful folks who genuinely care about music, first and foremost, and it was refreshing to try to wrangle though these tough issues rather than shoot at each other. And that's what I want to tell you about here, if you'll indulge me. I won't lie - we disagreed on some things about the Digital Age, probably a lot of things. But we didn't kill each other either.

So it seems to me that at the end of the day what we are faced with - artists, songwriters, labels, technology companies, listeners, creators, all of us - is a hard choice. We've danced around it forever, but now it's started to stalk us. Take away all of the drama of lawsuits and legislation and what we're left with is the decision between an open, decentralized Internet that empowers everyone on the network or a closed Internet, much like the centralized system of the physical world today, where all the control rests with the few at the center. We can argue all day about the benefits of either choice, but we can't really avoid the choice itself anymore because our indecision is really starting to affect the bottom line. No side can run away from this: the major labels are seeing their business models die, artists are trying to understand how to make money in a global marketplace when most everything is downloadable, college kids are getting sued, innovators and new technologies are getting shut down and shut out, and markets don't want to fund anyone who can't assure them that they won't end up in court and out of money.

As one of my panelists so eloquently put it, it's an f'in mess.

It's surely above my pay grade to figure out how to solve this, but I know that we need to. Soon. If we don't come together - all sides - and leave our weapons at the door, we'll all go down with the ship. And none of us wants that. Music is far too important. And it's not just music that's having the trouble. All creativity, be it songs or books or technologies or a piece of software, is at risk if we don't figure out how to protect the robustness of public domain with protection for those who create. Art and innovation are the foundations for our society. Even Albert Einstein said that he never had an original idea - he just built on what was already there.

Surely we can start doing some building of our own before we tear everything down.

Radiohead's "Its Up To You" Experiment Pays Off

noreply@blogger.com (Digital Freedom Campaign) — Tue, 21 Oct 2008 14:43:00 +0000

Judgement Day has arrived: The data is in from Radiohead's "name your price" experiment, where the band allowed fans to download their album, "In Rainbows," at a price of their choosing. And just as we predicted, and have always known, most people aren't pirates. If you give them value, and treat them decently, they will pay you. Its no longer theory, its a fact. Below is a summation of the findings:

- In Rainbows has sold three million copies thus far, a figure that includes downloads from Radiohead.com, physical CDs, a deluxe 2-CD/vinyl box set, as well as sales via iTunes and other digital retailers.

- The In Rainbows deluxe edition sold 100,000 copies via Radiohead fan service W.A.S.T.E.

- Radiohead made more money prior to In Rainbows' January 2008 physical release than its total take on 2003's Hail To the Thief.

- The physical release of In Rainbows entered both the US and UK charts at #1 in January, despite having been freely available since October 2007.

- In Rainbows was the first Radiohead album available on iTunes, where it went in at #1 in January, selling 30,000 in its first week.

- In Rainbows also owns the distinction of being the first record widely regarded as album of the year in advance of its actual physical release.

McCain – Palin Campaign Stands Up for Fair Use

noreply@blogger.com (Digital Freedom Campaign) — Wed, 15 Oct 2008 15:47:00 +0000

In electoral commentary, this will go down as the year the amateurs thumped the pros. YouTube is buzzing with user generated videos offering a smart, irreverent take on the presidential election. Often these videos remix snippets of mainstream media and reveal new and unexpected meanings. The results are sometimes brilliant, and our democratic process is better for it.

In the digital age, we can all be Chris Matthews or Wolf Blitzer. But predictably, the big media companies are trying wrest back control. Their weapon is the DMCA, which allows them to force websites to remove content, even if their underlying claim is spurious.

Yesterday, the McCain - Palin Campaign cried foul. In a letter to Google they said:

[O]verreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech. Numerous times during the course of the campaign, our advertisements or web videos have been the subject of DMCA takedown notices regarding uses that are clearly privileged under the fair use doctrine. The uses at issue have been the inclusion of fewer than ten seconds of footage from news broadcasts in campaign ads or videos, as a basis for commentary on the issues presented in the news reports, or on the reports themselves. These are paradigmatic examples of fair use...

It is refreshing to see a major presidential campaign recognize the contribution of fair use and remixing to our public discourse. We hope that whoever wins in November is committed to reforming the DMCA so that innovation and user-generated culture is allowed to flourish.

The Murder of an Exciting Tool for an Ailing Industry - The Muxtape Saga

noreply@blogger.com (Digital Freedom Campaign) — Tue, 14 Oct 2008 12:56:00 +0000

Many of our readers have surely heard of Muxtape, a website that until last month allowed users to create "digital mixtapes" for their friends. Some of you have likely used it. Muxtape provided value for listeners and artists alike, and brought the wonderful mixtape phenomenon in to the digital era, without allowing the user to download and take away assets. Seems like a perfect promotional tool for an ailing industry right? Well, unfortunately the major labels' trade association, the RIAA, instead believed it was a cesspool of piracy.

While the founder of Muxtape was in licensing negotiations with individual major labels the RIAA came in over the top and demanded that Muxtape remove the majority of their songs within ONE DAY. This is all while Muxtape was negotiating terms with the RIAA's core members!

This internal struggle between the major labels, who (sort of) understand the benefit of sites like Muxtape, and the trade association that represents them, who doesn't understand much of anything, it seems, when it comes to the evolving music industry, is what is holding back the major labels from making useful, profitable progress - for themselves, artists, and listeners.

Muxtape plans to relaunch as "a service exclusively for bands, offering an extremely powerful platform with unheard-of simplicity for artists to thrive on the internet...the new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format. Bands will be able to assemble an attractive profile with simple modules that enable optional functionality such as a calendar, photos, comments, downloads and sales, or anything else they need."

This is an exciting development for artists and fans, and it is one that the RIAA should have embraced, not sued. What was that saying about looking a gift horse in the mouth?

Where do Piracy Figures Come From?

noreply@blogger.com (Digital Freedom Campaign) — Thu, 09 Oct 2008 17:07:00 +0000

Where do the figures about the cost of piracy to the U.S. economy that are so often touted by the content industry and their supporters in Congress come from? Its a question many have asked, and few have answered. Ars Technica tried in a great investigative report published this week and, not surprisingly, found that the numbers seem to have come out of thin air. The Digital Freedom Campaign encourages all interested readers to check out the article, and ask yourself the following question: If the information policymakers are being given in support of stronger Intellectual Property protection is bogus, why doesn't someone do an actual analysis and correct them?

Senators Pressure Negotiators on ACTA

noreply@blogger.com (Digital Freedom Campaign) — Thu, 02 Oct 2008 22:24:00 +0000

By Art Brodsky
Public Knowledge
October 2, 2008

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and the panel’s senior Republican, Arlen Specter of Pennsylvania, have asked trade negotiators not to make the controversial Anti-Counterfeiting Trade Agreement (ACTA) too specific.

In an Oct. 2 letter to U.S. Trade Representative Susan Schwab, Leahy and Specter said they were concerned that the agreement was being drafted in such detail that it could limit congressional flexibility to deal with intellectual property and related issues in the future. The senators also said their concerns were compounded by the “lack of transparency” that goes along with trade agreements and by the speed of the negotiating process.

They also specifically asked Schwab to steer clear in the trade agreement of issues surrounding liability of Internet Service Providers and of technological protection measures. The senators said: “The contours of the law and liability exposure in these areas continue to be debated in the courts and in Congress. As technology is not static, Congress must have the ability to tailor the law as developments warrant without concern that a change may run afoul of ACTA.”

Schwab should not “rush into” a new trade agreement without Congressional involvement, the senators said.

A copy of the letter is here.

We have long been concerned about the secrecy surrounding the ACTA negotiations, which is why PK and the Electronic Frontier Foundation sued USTR for documents so that we could find out what’s going on behind the doors that are closed to us, but open to the business community that is pushing the trade agreement.

Stacking Penalties Upon Penalties (PRO-IP Passes Senate)

noreply@blogger.com (Digital Freedom Campaign) — Mon, 29 Sep 2008 21:03:00 +0000

By Sherwin Siy
Public Knowledge

Today, the Senate approved an amended version of its version of IP enforcement bill (now named the PRO-IP bill to parallel the enforcement bill in the House). PK’s press release is here.
As amended, the bill retained its increased forfeiture penalties for copyright infringement and media bootlegging, meaning that any number of multipurpose devices—even those not owned by the infringer—could get caught up in the net of forfeiture penalties. Nor does the amended bill contain any language (as did some earlier versions) requiring that the property be “substantially connected” to the offense.

Fortunately, some of the most worrisome provisions have been removed, including one that would grant the Attorney General the power to bring civil lawsuits against alleged infringers on behalf of copyright holders, and new forfeiture penalties for circumventing DRM.

But the focus on “enhancing” penalties by increasing them is worrisome. While there are legitimate uses for criminal forfeiture provisions, and even good arguments to be made for some types of civil forfeiture, the larger picture of penalties surrounding copyright infringement deserves a serious second look. Too often, penalties for crimes are only ratcheted upwards—it’s a way to signal to constituents that Congress is being quantifiably tougher on that particular crime. Unfortunately, while that may be an easy way to suggest a commitment to enforcing the law, the actual results often do little to increase deterrence, while potentially chilling all manner of uses for copyrighted works.

It’s hard to talk about copyright penalties without first mentioning damages, and statutory damages in particular. One of the great oddities of copyright law is the fact that an offense that costs the plaintiff one dollar can be paid back by penalizing the infringer an amount somewhere in between $750 and $30,000, possibly rising to $150,000 in cases of willful infringement. That’s per work infringed, meaning that downloading ten different tracks—not an unusual activity for a casual P2P infringer—could incur a penalty of $1.5 million. Obviously, theoretical multiplications of statutory damages only mean so much—this only becomes a problem if a judge or jury actually starts awarding such high amounts for such petty offenses.

But they have. Jammie Thomas, a Minnesota resident, was sued for downloading twenty-four songs from a P2P network, for which she was penalized $222,000. That’s $9,250 per song, when each digital file, had she bought it off of iTunes, Amazon, or any number of other digital music stores, would have given the copyright owner less than one dollar.

The justifications for this extreme amount can be found in a combination of:

(1) the need to deter infringement (and compensate owners) in cases where it’s hard to peg a specific amount of harm, and

(2) a statute that really never, in its inception, contemplated digital technology.

As for the first part, it’s easy to see how the concept of statutory damages can be a real benefit in copyright cases. A lot of times (such as with unreleased material or material intended to be published for free) it’s hard to determine just how much a plaintiff lost from the infringement. Setting an automatic dollar value can ensure not only that the plaintiff gets something. Setting statutory damages can also help ensure deterrence: a savvy defendant might otherwise decide to take a chance on infringing a work if he figures that the plaintiff will not bother with a lawsuit to only recover a speculative or nominal amount of money. Setting a wide range of values for statutory damages also makes some sense, since damages are calculated by the number of works infringed—making hundred of copies of one CD would still have the same maximum statutory penalty as making one copy of that CD.

Given the state of technology today, though, it’s a rare infringer that actually makes this calculation. In the case of most casual downloaders, the calculation probably has more to do with a question of how much they’re individually hitting a copyright holder’s bottom line (minimally), with no particular thought as to the expense of litigation. Whereas a commercial infringer—the sort originally contemplated by copyright law—might make hundreds or thousands of copies of a work, the home downloader makes one. Yet that same yawning range of penalties is available, and set before a jury. A value between $750 and $30,000? With that range, $9,250 falls somewhere below the median. Fair, right?

Well, not really—and a judgment like that fails to accomplish the goals of the statute. Recently, a federal court in Minnesota granted Jammie Thomas a new trial, based upon flawed jury instructions regarding liability. Yet the judge felt compelled to make a note of the damages issue, devoting the final section of his opinion to this detailed, thought-out plea:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 741‐42 (D. Md. 2003) (describing defendants as a “global financial‐services firm” and a corporation that brokers securities).

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

And petty offenders like Thomas aren’t the only ones harmed by disproportionate penalties. When a new media device or service is invented and runs up against the business interests of a copyright holder, these statutory damages can put a startup with a legitimate case for fair use at an automatic disadvantage when it comes to simply being lawyered out of business. Even with a good legal case, the threat of astronomical damages can cause an innovator to settle before a complaint is ever filed.

The forfeiture penalties broadened by the PRO-IP Act now stack another penalty on top of this flawed structure. Over the years, the statutory damages themselves have been pushed upwards—tripling from their 1976 values. New crimes, like videotaping movies in a theater, or recording liver concert performances, are layered on top of copyright.

And while these additional, flawed structures are being piled on, the baseline of penalties itself remains a shaky foundation upon which to build.

DF welcomes Arts + Labs initiative to “Encourage Development and Dissemination of Legal, Safe and Innovative Content on the Internet"

noreply@blogger.com (Digital Freedom Campaign) — Wed, 24 Sep 2008 22:03:00 +0000

The following statement can be attributed to Maura Corbett, spokesperson for the Digital Freedom Campaign

"The Digital Freedom Campaign welcomes Arts + Labs to the discussion of critical issues involving artists, consumers, and new digital technologies. We are encouraged by the Coalition's stated focus on building compelling business models, rather than limitations and lawsuits. We look forward to joining them to promote innovative digital distribution systems that preserve the rights of consumers. We hope to work with this coalition to create a 21st century IP system that empowers and compensates artists, while enabling innovative applications like Pandora to survive and thrive."

Music Publishers, but Not Performers, Strike Deal on Online Royalty Structure

noreply@blogger.com (Digital Freedom Campaign) — Wed, 24 Sep 2008 13:35:00 +0000

The Digital Media Association (DiMA), the National Music Publishers Association (NMPA), the RIAA, Nashville Songwriters Association International (NSAI), and the Songwriters Guild of America agreed on a mechanical royalty rate of 10.5% for interactive streaming and limited downloads, ensuring that songwriters will be compensated for their works in the digital age.

This is a great agreement to be sure, but people may confuse this as being a solution to the Internet Radio Royalty Rate issue...it is not. That issue deals with the SONGWRITER royalty, not the PERFORMANCE royalty. It's an important distinction that not everyone in the press is grasping. Internet radio is in as dire straits as ever, because the exponentially increased performance royalty rates handed down by the Copyright Royalty Board last year still stand, and without a quick resolution that significantly lowers this rate the entire industry is in danger of extinction. So while Mitch Bainwol, chairman and CEO of the RIAA, applauded by saying ""The agreement demonstrates that our industries can work collaboratively to solve complex issues," what we need now is for his association to work collaboratively to solve a simple issue: the preservation of Internet radio.

Hollywood: Please Don’t Get Real

noreply@blogger.com (Digital Freedom Campaign) — Fri, 19 Sep 2008 12:47:00 +0000

Last week, Real Networks launched an application that will allow consumers to rip their DVDs to a computer hard drive. The new product appears legal under the Kaleidescape ruling, which allows the sale of computer servers that rip and store digital movies.

So what’s the big deal? After all, folks have been using unauthorized services to rip DVDs for years – or so we’ve been told.

Simply this: for the first time, consumers will be able to make copies of their DVDs in a legal, above-board way. And this opens up huge opportunities for the Hollywood studio, if they care to take advantage of them.

Real has gone out of its way to ensure that Hollywood’s IP is protected. Buyers can only make one copy of a DVD, playable only on the computer where it was made. The user can transfer the copy to up to five other Windows machines with the purchase of additional licenses. Finally, copies can’t be taken off the computer or uploaded to the Internet.

For the studios, this opens up a path to engage lawful consumers who wish to place-shift their DVD’s in an authorized environment. By enhancing consumer convenience (do you really enjoy packing physical DVDs for an airplane trip?) you increase demand for the content.

So please, MPAA, call off the lawyers. Better yet, go a step further and ensure that anyone who legally acquires a movie can watch it on any screen they choose, be it a computer, TV or mobile phone. Give the public what it wants – the right to view movies cheaply, legally and on a variety of devices – and you will replicate your record-breaking summer box office revenues in the digital world.

ACTION ALERT: Tell the Senate to Hold Up the IP Enforcement Bill

noreply@blogger.com (Digital Freedom Campaign) — Wed, 17 Sep 2008 16:51:00 +0000

By Alex Curtis, Public Knowledge

Last week, the Senate Judiciary Committee gave the green light to S. 3325, the Enforcement of Intellectual Property Act of 2008. We need you to show them the red light, NOW! This intellectual property enforcement bill lets the DOJ enforce civil copyright claims and lets the government do the MPAA and RIAA’s intellectual property rights enforcement work for them—at tax payers’ expense.

CLICK HERE TO CALL THE SENATE JUDICIARY MEMBERS NOW

(We’re using the awesome Cause Caller for this alert, so be ready to speak to a number of different Senate offices, rapid-fire style! We’ve picked Senators who may be like-minded in opposing this bill. Of course, feel free to call your own Senators.)

CLICK HERE TO SEND A FAX TO YOUR SENATORS

By allowing the federal government to sue infringers in civil court, the DOJ would be asking a court for monetary damages on behalf of content owners. In a civil suit brought by the government, the defendant loses many of the protections he possesses in a criminal action—including his right to free legal representation. What’s more, the government’s legal burden of proof is lower: the government only needs to prove infringement with a “preponderance of the evidence,” meaning that it’s more likely than not that infringement occurred, as opposed to the usual criminal standard of “beyond a reasonable doubt.” Does the content industry need this help from the Department of Justice? Absolutely not! In the last five years, the RIAA filed or threatened more than 30,000 suits against alleged infringers. If the Enforcement bill passes, not only will the number of such suits increase—they’ll also be paid for with your tax dollars.

Now, the bill’s backers are pushing to have it pass the Senate as early as today via a streamlined procedure, without the full Senate voting on the measure. Tell members of the Senate Judiciary Committee that you don’t want your tax dollars spent on DOJ’s civil enforcement of copyright, and to put a hold on the bill.

CLICK HERE TO CALL THE SENATE JUDICIARY MEMBERS NOW

CLICK HERE TO SEND A FAX TO YOUR SENATORS

To learn more about the Enforcement bill:

See this blog post

Read the letter from 12 concerned public advocacy groups

And learn more about the bill at OpenCongress

BTW: big thanks to Mehan, Sherwin and Scott for putting this all together at warp speed. Also thanks to Fred at Cause Caller.

S. 3325 Passes Senate Judiciary

noreply@blogger.com (Digital Freedom Campaign) — Fri, 12 Sep 2008 18:47:00 +0000

By Sherwin Siy, Public Knowledge

S. 3325, the Enforcement of Intellectual Property Act of 2008, passed the Senate Judiciary Committee earlier today, 15-4. The bill was amended to remove, among other things, the provision expanding penalties for circumventing DRM. Other amendments removed potentially problematic new offenses involving transshipment, and still others added protective orders for private or confidential data recovered when servers are seized or forfeited.

Still in the bill is a section authorizing the federal government to sue infringers in civil court in order to turn the money over to copyright holders. This provision lets the Attorney General take advantage of the lower standard for burden of proof in civil cases—here, the government only needs to prove infringement with a “preponderance of the evidence,” meaning that it’s more likely than not that infringement occurred, as opposed to the usual criminal standard of “beyond a reasonable doubt.” And the only penalty available under such cases is restitution—the government turns over the amount of damages to the copyright holder. This is a win-win for the content industry, which now can get money damages while taking advantage of the legal services of the Justice Department.

Latest on DVD Ripping

noreply@blogger.com (Digital Freedom Campaign) — Thu, 11 Sep 2008 15:19:00 +0000

RealNetworks recently launched its RealDVD Software application to great fanfare. The application allows users to copy DVDs on to their harddrives for later playback. Our readers are no doubt familiar with the CSS Encryption that most Hollywood DVDs are "protected" with, but it appears that RealNetworks has signed licenses with the DVD Copy Control Association (DVD-CCA) to allow for this type of playback.

The Digital Freedom Campaign applauds this development as a step in the right direction, albeit a qualified one. We encourage you to check out the commentary from EFF's Fred Von Lohmann, and the great article from CEPro summarizing the latest developments on DVD ripping.

Fla. Agreement Sheds New Light On Comcast Cut Off Policies

noreply@blogger.com (Digital Freedom Campaign) — Fri, 05 Sep 2008 21:10:00 +0000

By Art Brodsky, Public Knowledge

Prior to setting a cap on the amount of bandwidth a high-volume customer could use before having service terminated, Comcast instead cut off a set number of users regardless of how much bandwidth they used, according to documents released by Florida Attorney General Bill McCollum.

Comcast announced at the end of August that it would impose the 250 GB usage cap on subscribers that had been hinted at for weeks. The cap, which takes effect Oct. 1, appears to cover uploaded material and downloads, given that Comcast’s example included the number of digital photos that could be uploaded.

In announcing the cap on its Web site, Comcast said: “We’ve listened to feedback from our customers who asked that we provide a specific threshold for data usage and this would help them understand the amount of usage that would qualify as excessive.” Comcast made its announcement on Aug. 28, and the stories about the cap appeared that day and for the next couple of days following.

What Comcast didn’t mention, however, was that it had reached a settlement with McCollum’s Economic Crimes Bureau to pay $150,000 to the state to resolve “concerns over disclosure issues related to bandwidth use policies,” according to an Aug. 29 news release issued by the McCollum’s office. The settlement was the result of a state investigation of Comcast’s Acceptable Use Policy (AUP) in which Comcast “allegedly did not inform consumers of a specific bandwidth limit” for customers to be notified of “excessive use, which could lead to a customer being kicked off the service.

The actual settlement document shows that instead of cutting off heavy users of the service according to a specific amount of bandwidth used, Comcast instead cut off the top 1,000 users out of Comcast’s 14.4 million customer base (about .007 percent of subscribers), regardless of how much they used.

According to the settlement, “Pursuant to the AUP, as currently applied, each month the top 1,000 bandwidth users out of Comcast’s entire customer base of approximately 14.4 million subscribers (i.e., approximately .007% of subscribers) receive a direct, personal notification from Comcast by telephone that they are violating Comcast’s Acceptable Use Policy, because of their excessive use of bandwidth.”

When consumers asked Comcast to specify a cap on usage, “Comcast did not provide consumers with a specific bandwidth usage limit, stating that the consumers’ service would be at risk if they remained among the top 1,000 bandwidth users and directing them to the AUP and frequently asked questions explaining the AUP’s excessive use policy,” according to the settlement document.

That wasn’t good enough, as the Attorney General said that “a ‘top 1,000’ criteria, as previously applied, did not clearly and conspicuously disclose to the consumer the specific amount of bandwidth deemed to be excessive under Comcast’s subscriber agreements.”

The agreement gave Comcast the right to set the limit for “excessive bandwidth usage” by the beginning of 2009 and to spell out more clearly the terms under which customers could have their service terminated. The agreement also required that Comcast not use the term “unlimited” to advertise its high-speed Internet service as long as Comcast reserves the right to terminate user service for using too much bandwidth and without a “clear and conspicuous disclosure in close proximity to the term ‘unlimited’ of any applicable qualifications” of the use of the word.

Nothing in the agreement document indicates how much bandwidth the top 1,000 customers actually used, which could be a gauge to determine how appropriate the new 250 GB cap is.
According to one posting on DSL Reports, customers with 400 GB of usage were cut off. If that is within the ball park, the 250 GB cap might be seen as lower than necessary for Comcast’s network management while being seen as an inhibiting factor for customers.