Jason Robert Brown, and the Sound of (Copyrighted) Music

I write a lot about copyright, and licencing, and the situations arising from filesharing, so the shennanigans with Jason Robert Brown were of particular interest to me. In short - JRB is a famous composer, and he was slightly and understandably miffed that some sites allow his sheet music to be accessed for free.

So he opened up a dialogue with one of the users of such a site, and the resulting exchange is enlightening and informative. His opponent is a teenager, a young aspiring singer who sees nothing wrong with filesharing.

What I found most interesting is that her attitude towards sharing online was very different to his, and she had a remarkably good grasp of how it could benefit him in a promotional way. JRB didn't agree, and directed her to buy his music at four dollars a pop - not much, of course, but without a credit card, she couldn't pay it. He did come off as rather heartless in that respect.

Several things struck me about all this. The first was that the teenager's attitude is certainly not unique. Her generation is completely comfortable with sharing files online, both technologically and morally, and JRB seems rather blinkered to this fact. That's a little dangerous when you consider that her generation will grow into the consumers with money that he will be playing to in a few years. Public perceptions shift and evolve over time, and hanging your future earnings on the idea that you can prevent the attitudes of the younger generation from merging into the mainstream is not a good business decision.

The second was that he just didn't seem to realise that it's not about him. This teenager likes his music. She has access to sheet music that she wouldn't normally have available, because her parents won't pay for it. She takes the time to learn it, sing it, make it a part of her life - and she tells him this, and explains that she loves his music so much that she wants to promote it and share it with others.

He, of course, is of the opinion that she could just as easily promote it with paid sheet music instead of free copies. But - and this is very important - it's not about him. He's not the only composer in the world. For a teenager who can't afford to buy sheet music, it's easier to download than to find a way to pay, so if he succeeds in having his music removed from this site, it won't somehow convince her and her peers to buy it instead. They'll just look for another free song that's been left online by another composer who isn't concerned about filesharing. Bottom line here, he's wilfully restricting the market for his work because he can't stand the idea that someone is getting his work for free.

The third thing, and I am tired of saying this, is that he repeatedly refers to it as 'illegal'. Anyone who's done any research into this area should know that filesharing is not illegal.

Everybody now: COPYRIGHT INFRINGEMENT IS NOT A CRIME.

It's actually a civil case, as opposed to a criminal one. That's why you should be calling it infringing behaviour, not illegal behaviour. Small distinction, I'm sure, but it's an important one.

The fourth thing is that he uses incorrect analogies. The screwdriver, for example - he compares giving away a finite good (end result: he does not have a screwdriver anymore) with an infinite good (end result: he still has his own copies of his music). It's irritating when people make these comparisons and don't think them through.

Imagine if you had a screwdriver, and your friend wants one, and you have the technology to make an exact copy of it in about a minute at zero cost. Maybe it's an exceptionally well-made screwdriver, with variable size and type and whatnot, and it took you a year to craft it. So you tell your friend, "Sorry - you need to give me four dollars before I'll make you a copy". Maybe he'd give you the money, but that's a bit of a stretch if there are a hundred other screwdriver craftsmen who'd be happy to make him a copy for free, and all of them are clamouring for his attention.

It's all market forces, kids. If people know that it effectively cost nothing to produce the goods they are buying, they expect to get it for free or for close to free. Asking them to pay when your competitors are giving it away for promotional purposes is a colossal mistake. Maybe their goods are not as well-made, and maybe you'll get some sales out of the people who prefer quality over price, but at the end of the day it's not you who'll be getting the attention (and thus the money) of the majority of consumers - and unless your goods are significantly better and differentianted from the competition, you will go out of business.

(But wait, I hear you cry, how can they make money if they're giving away their goods? In response to this, I can only suggest that if an entrepreneur can't figure out how to take consumer attention and turn it into sales and income, then perhaps they should get a different job.)

In summary, I really feel for Jason Robert Brown. I'm not callous enough to ignore his point of view that he should be paid for the sweat and blood he put into his music, but the simple fact remains that his work is going to be shared whether he likes it or not, whether he rails against it or not, whether it's copyright infringement or not. He says himself that the recording industry is in freefall right now, and he's not wrong - but the music industry is booming, and musicians are finding new ways to make a living by reaching out to their fans directly, and by not relying on the sale of the infinitely and easily copied streams of data that make up their music. See the latest report from the UK, if I remember right - people are spending more money on music than ever before, but it's all in live acts and not plastic discs.

I feel bad for him because all he can see is how he's not being paid his share of four dollars. He's so focused on how the Internet is losing him a little bit of money that he doesn't recognise how he could be using it to make a huge pile of money. It's like Harry Potter all over again - up to May this year, the series was not allowed to be released as ebooks due to the fear of piracy. The result, of course, is that there was no other way to get it as an ebook except through illicit channels, which means it was heavily pirated anyway and both Rowling and Bloomsbury have lost out on potential ebook sales of the most popular children's series in the last decade!

I often wonder who was ultimately responsible for that particular business decision. Was it Rowling, perhaps? Did Bloomsbury buy into the media panic over filesharing and nudge her into it?

Anyway, back to JRB. People are fond of saying that there's no easy answer to filesharing, but I disagree. There is one answer that counts: Evolve or die, gentlemen. If your business model can't survive in the age of the Internet, you have a stark choice - develop a better one, or accept that you will fail.

There is no in-between, no happy medium. You are not a special snowflake that the digital age will treat gently and make exceptions for.

Evolve or die.

Copyright Law

Something that I've been thinking about lately is the nature of the music licensing bodies in Ireland. I've talked before about IMRO, and no, I am still not impressed by their efforts to extract license fees from hobbyist music blogs. Promotion of up and coming artists is important, and those blogs are only going to become more prevalent.

Anyway. I've been pondering something tangentally related.

IMRO are licensed to collect fees from venues like shops, restaurants, clubs. The PPI collect as well, for performing rights. They collect regardless of whether the venue in question actually plays any of their music; their attitude is such that they assume that the musicians in the venues will, without a shadow of a doubt, eventually play something that they have the rights to.

Now, this worries me.

Let's say a restaurant doesn't want to pay the fees, and decides to play only non-IMRO, non-
PPI music. Such music does exist - Creative Commons music, perhaps? Jonathan Coulton releases all his music as CC-Attribution-Non-commercial; it wouldn't be much of a stretch to make a deal with him, or artists like him, to use their music.

Here's the thing: his songs are specifically registered to him. He owns the copyright and he licenses them as he sees fit. "Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work..." so sayeth Wikipedia, which seems quite straightforward. Copyright lets the creator profit from their work in exchange for sharing that work with the world. The keyword there is profit, of course.

If you own the copyright on a work, no one else has the right to profit from that work. That would be in breach of the most basic elements of copyright law. So, consider for a second what happens in this scenario:

Restaurant contacts local musician and does a deal, such that the musician provides or performs their own original work (or their own original arrangements of public domain works) to the restaurant in exchange for a set fee, which is presumeably lower than the licensing bodies' fees. Restaurant begins to use this background music normally. Both parties profit in that the venue gets music, and the musician gets promotion plus money; very straightforward, as the musician owns the songwriting and performing rights, and may profit from them in whatever way they see fit.

Enter the IMRO, as they like to do, and they demand licensing fees from the restaurant, because the venue is playing music. In short, they demand payment for the use of music to which they do not own ANY RIGHTS.

See the problem there? See what is just a little bit bothersome? The licensing bodies are essentially asking for money on the offchance a venue uses their music, even when the venue specifically restricts itself to music they don't cover. If Jonathan Coulton owns the copyright on a work, and owns the exclusive right to profit from it... what exactly happens if the IMRO profits from it?

Breach of copyright law, perhaps?

Licensing restrictions for ebooks

It's safe to say that I read a ridiculous amount of material every day. I'm a speed reader by nature, so the 300-500 items I get daily through my RSS feeds don't seem like much. I read so fast that I'd probably be bored otherwise.

It has its drawbacks, of course. It's very nearly pointless for me to buy books casually anymore; they'll last me a few hours, if that, and then I have to either keep them and reread them, or take them to a second hand store or a willing friend. I do enjoy them, but it gets to be a little bit wasteful.

Ebooks were the perfect answer. I could download books to my little iPod touch, and read them when I have an hour or two to spare. I have classics like Sherlock Holmes that I never get tired of, and a few other free titles from Harlequin and whatnot. I didn't feel the need to buy any ebooks, because I hadn't seen any that really caught my interest - or that would justify the cost.

They're very much something to fill the time when I'm bored and out somewhere that has no books or other diversions around. I have said that I'm not all that enthusiastic about ebooks, but again, that's mostly to do with the price vs. functionality; I always have my iPod with me, and although I prefer real books, it doesn't cost me anything to download an app and grab a few out of copyright titles to keep me amused.

All that might have changed today.

I was reading through my feeds, and I happened to come across a post by Natalie Whipple which mentions a book called Into the Wild Nerd Yonder by Julie Halpern. Well, suffice to say, she had me at the title - I wanted to read it, and I immediately dropped everything to look at it a little more. Then I decided I really, really wanted to read it - but it looked like the kind of book that would only last me a few hours. No problem, I thought, I can get it on the iPod if it's not too expensive. I won't have another book clogging up the house, and I'll have another happy little diversion for the next time I'm out and about.

After a further investigation, this is what I found:


In case you can't read it, that's Amazon telling me that I can't have the ebook. It's not available in Europe. I could buy the hardback version from Amazon.co.uk for a mere £9.61, but I don't want the hardback. I want the damn ebook, and I want it downloaded to my iPod so I can read it tonight, if I choose - not in two days time when it ships to me.

Hello, Julie Halpern? And her publisher? I want to give you money. I want to buy your ebook. More than that, I want your ebook to be the first one I actually spend money on. Right now, you're stopping me from giving you money, and I have to question what exactly is going on if you're happy with that.

I mean, I do understand that there are licensing restrictions for physical books. You want to be able to sell the rights to publishers in different countries and different languages, even if the distinction between the US and the English-speaking parts of Europe is largely irrelevant. But really, ebooks? From Amazon? The product is exactly the same. The company you're dealing with is exactly the same. The company sells your book outside the US. Why on earth would you only allow them the ebook rights for within the US?

If this were a movie that had just been released in the US and wasn't expected in other markets for a while, people would already be going to their preferred method of piracy to find it. This is because people will get what they want, when they want, in the form that they want, and trying to sell them what you want them to buy is a waste of time if it doesn't match up.

As for me, I'll have to settle for Sherlock Holmes, and accept that I will not be giving my money to Julie Halpern and her publisher for the time being.

[added by edit]

Alright, after reading Natalie's comment below, and commenting myself, I want to set the record straight here. My post above implies that I'm blaming Julie for the lack of her ebook over here.

That's not what I intended.

I apologise for being a bit of a jerk. No excuses; I take this stuff seriously, and getting frustrated is no reason to get pissy as well with someone for a situation out of their control. So - sorry, Julie. Really. I don't blame you at all.

When I asked, "why on earth would you only allow them the ebook rights for within the US?" I thought I was addressing the publisher. It doesn't look like that though, and for that I apologise. I'll be more clear in future.

As penance, I shall order the hardback from Amazon immediately.

This cannot end well

In the aftermath of the High Court decision regarding the three strikes malarky with Eircom, it seems that the licensing authorities in Ireland have decided to start cracking down on all kinds of content both online and offline.

Two stories in particular have crossed my path. The Irish Music Rights Organisation (IMRO) have sent out notices to a number of large, non-profit Irish music blogs that they must buy a license in order to offer MP3s to their readers - files, by the way, that have been sent to them gratis by labels and bands for promotional purposes. The reasoning is thus - these bands and labels have signed up with the IMRO and granted them the exclusive rights to collect songwriting royalties on their behalf. If I understand this corrently, even if they want to give away their music, they can't. The agreement they signed does not allow it.

Dare I say that this is all kinds of stupid? The blogs are doing free promotion, and getting people talking about music. The vast majority do it for the love of music, not because they want to get paid. They make no money. If this does occur, it can only put a serious dent in the promotion and discussion of Irish artists online. Less promotion = less people hearing about music = less sales.

The second story is about the licensing of cinemas in Ireland. The IMRO is in talks to increase the rates that they charge cinemas across the country - 1% of their gross box-office takings, regardless of the size of the cinema. At the moment, the rates vary depending on the size. That's not a cut of the profits; it's a cut of all money they take in, and 1% is a lot when you're already on slim margins. This is apparently because “we have an obligation to treat all cinema operators in a fair and consistent manner.”

I'm not sure what to make of it. The whole Irish economy is being slammed right now, and all this seems to be doing is squeezing businesses even further. According to the article, they want to backdate payments for the last five years - that can easily put the cinemas who are just holding on right now out of business entirely.

This just cannot end well. I can't imagine many artists who are signed up to the IMRO would be all that happy about these greedy, strong-arm tactics. With the ability of the Internet to provide a promotional platform for bands, the question may indeed become whether an artist would want to be signed up to the IMRO anyway. Make no mistake about this; there's a market there for bands who choose to retain all rights and completely avoid the IMRO, IRMA, PPI and others. Take a song, for which you own the written copyright because you wrote it. Record it yourself, and you have the recording copyright. Sell the song to a business under your own commercial license, granting them the right to play it in their shop for however long you both agree on - forever, maybe? - for a small, set payment. You get a little bit of money, and free promotion of your song in that shop. They get a license to play music that doesn't bankrupt them.

Can you imagine if a label decided to do this? I could easily envision one going into a shop and setting up their sound system as a direct stream from the label's servers which contains all their bands' songs, and the music is delivered as a service which costs a small monthly fee. The shop would get affordable music, and the label would be able to control their marketing and promotion. And that's to say nothing of the feedback you could get; statistics on the most popular songs, sales figure comparisons, etc. What if there was a public computer in the store where customers could register their interest in the music being played, or show their interest in a particular song? The possibilities are endless!

This does assume, though, that the label hasn't already signed up with any of the licensing authorities.

I can't be the only person who can come up with a workable business plan that bypasses the IMRO. So... I wonder are they really working in the interests of the musicians, or are they only interested in their own revenue streams?

Not going there

So, I realise I have some liberal opinions on the nature of the copyright debate. I realise my opinions regarding stuff like the three strikes law tend to be on the side of consumers, not copyright-holders, and that will probably not change until the copyright-holders start dealing with organisations who understand the nature of the Internet (i.e. not the IRMA, for one).

I'm perfectly willing to look at the other side and see what they have to say, in the interests of fair debate and whatnot. But there are some places I am not going, some discussions I am not getting involved in. This is one of them.

Johan Schlüter is a lawyer with the IFPI, a Danish anti-piracy group. He declared that "child pornography is great... It is great because politicians understand child pornography. By playing that card, we can get them to act, and start blocking sites. And once they have done that, we can get them to start blocking file sharing sites". This is according to Christian Engström, the MEP for the Pirate Party.

I've been trying to work out in what context Mr. Schlüter thought his remarks were justified and sane.

Let's take child pornography, a thing so vile that there are no words to really describe the hurt it causes to the innocent, the eradication of which is one of the foremost concerns of every developed nation. It evokes a strong emotional response, because this thing is so vile that we cannot bear to imagine it happening to any child.

Mr. Schlüter, however, doesn't seem to think like that. Child porn is great because we can use it to get the politicians to do what we want. All the pain and suffering that's a part of it, all the lives damaged by it... no. It's ok. We can use it as leverage.

I'm not going there. I'm not getting into that discussion. If someone can't grasp the concept of 'child porn = bad no matter what the situation is', then I'm honestly not sure I'd be comfortable being in the same room as them, never mind have a debate with them. His comments reveal a complete disregard for the very real pain that children are exposed to every day. I can't even begin to comprehend what would go through the mind of a survivor of abuse related to child pornography if they read them. 'Trigger warning' just isn't going to cut it.

This is who the copyright-holders choose to deal with? This is who they allow to speak for them? I am truly gobsmacked. There is more in the article from Engström, including talk about filtering, but it pales in significance really. Copyright infringement is irrelevant in comparison to real human suffering, and I hope someone can speak frankly to Johan Schlüter and explain this concept to him.

'Three strikes and you're out' is not a game

This isn't baseball, and I wonder if perhaps the Irish High Court should really take note of that.

Three strikes laws are nothing new. They are the type of law, however the wording actually states, that disconnects a person's Internet connection after they have been accused of a third copyright infringement. They are law, or are in the process of becoming law, in Sweden, the UK, and France.

They are also a waste of time and money, a threat to human rights, and a threat to the livelihood of anyone involved in the creative arts.

In January 2009, Eircom signed a deal with the major music labels to disconnect persistant filesharers. This is not a law, per se, but a simple agreement between them and the IRMA - if they receive notice of evidence of filesharing against a particular connection three times, that connection is cut off. There was a High Court challenge regarding the legal status of an IP address as personal data, but that has now been resolved, and the agreement can go into full force. This is even worse than a law - there is no oversight, no accountability. And with Eircom signing up to this, the IRMA will have the leverage to bully other ISPs into accepting the same deal, or face being sued.

So. Let's hypothesise. Eircom receives a notice that a particular IP address has downloaded an infringing file. They duly send out the notice to the mailing address associated with that IP - they have no way of knowing whether the notice is accurate or not, and little reason to care.

But is that evidence accurate? It may not be, if it's similar to the system used in the UK by ACS:Law. The Internet Service Providers Association in the UK was not convinced. See BeingThreatened for more information on this. The content in question also may not be infringing - in Viacom's lawsuit against Youtube, for example, there were a hundred clips listed as infringing when Viacom had uploaded them itself! Fair use is not mentioned, so background music in a home video you share with your relatives abroad may get you disconnected (legally, it's still infringing material) - and we have no assurances as yet that the IRMA will not pursue people in that fashion. This, by the way, is the same organisation that claimed that people who copied music to their iPods from their CD collection were breaking the law.

Does the evidence actually point to your computer? It may not. The IP address points to your connection; your gateway to the Internet, as it were. Several computers in one house all use the same gateway. They have no way of telling which computer connected to that gateway actually did the infringing.

What if the gateway belongs to a business with a dozen employees? Maybe a rented accomodation, where students are coming and going all the time? A school? How do you tell who actually did it, and who is just a bystander? What if the culprit hacked into the connection, as many savvy users can, without the owner's knowledge - through a wireless router, for example? The IRMA apparently doesn't care, and Eircom stands to lose more through getting sued than it does by losing one customer's business.

But nothing can change the fact that this is punishment on accusation; the customer is guilty until proven innocent. It's like getting arrested for being nearby when a crime occurs, and the actual criminal is let free to break the law again. And Eircom will likely lose many customers as they move to other ISPs, but that is a stalling tactic at best if the IRMA manage to foist their agreement on all Irish ISPs.

I did state, though, that this is a waste of time and money. Allow me to expand on that.

The entire point of this agreement is to discourage copyright infringement, and encourage the legal sale of creative works. I'm sure it looked good on paper, but in practice, it simply does not work. Sweden saw a drop in filesharing traffic after implementing the IPRED law, but the levels simply bounced back and even increased. People moved to streaming sites, or bought VPNs that encrypted their activity and essentially let them fileshare with impunity. And the question of whether IPRED actually increased legal sales is up for debate; an increase was seen, but was that a result of the law, or of better availability of legal music through sites such as Spotify? Correlation does not equal causation. Attitudes to filesharing remained largely the same, and to date there have still been no IPRED convictions.

The lesson to be learned here is, as I've said before, that people will get the content they want in the manner they want, and laws that are easily circumvented by the technologically astute are hardly going to stop them. The time and money spent by the IRMA and Eircom on this is simply a waste - it will not even slow down piracy, if the figures from Sweden are anything to go by, and it is certainly not guaranteed to catch the actual pirates.

That the three strikes laws are a threat to human rights is quite clear; they are a threat to free speech, and the free access of individuals to information. Internet access is considered so important by the EU that it adopted an Internet freedom provision in the Telecoms Package last year, in which "the right to an effective and timely judicial review shall be guaranteed" in the case of disconnection because of copyright infringement. Alas, this provision only applies to states, not private ISPs... Technically, what Eircom and the IRMA are doing is legal, but that doesn't make it right.

But these laws are also a threat to people involved in the creative arts. I think I should know about this, as I am a person involved in the creative arts. The reason is simply this: the law disconnects people from the Internet. It cuts them off from the greatest communication medium the world has ever seen.

Without access, they cannot talk about my books on their blog. They cannot tweet about me, the author. They cannot buy a paper copy of my book as a present for someone. They cannot discuss my books with other fans. They cannot buy merchandise from me. They cannot find out about book signings.

They certainly can't buy my damn ebook.

The greatest challenge facing me, as an aspiring author, is obscurity. It's the same challenge facing all but the biggest names in music, books, and movies. And it makes me goddamn furious that the IRMA and licensing authorities like them feel that they can cut me off from my fans because of filesharing. Piracy isn't right, and I know I'd rather not see my books pirated, but this is not the answer! Removing one major avenue for people to consume and purchase media will not encourage them to consume and purchase elsewhere; in fact, if they're disconnected because they have an infringing copy of my work, it could damage my reputation as an author because they are likely to blame me personally!

I do not want my name connected with such idiocy, especially when there is money to be made by creative individuals who understand the power of the Internet. The Irish High Court certainly don't have a clue, judging by the comments of Mr. Justice Charleton. They should have done even the most basic research on other implementations of three strikes, and how they affected filesharing. They might have noticed how an IP address may not correspond to the infringer, and how there is enormous scope for innocent people to be disconnected. They might have considered other effects of disconnection such as inability to pay bills online, inability to complete coursework, inability to do business, inability to spend money on legitimate sites.

The fact that they seem to have ignored all this suggests to me that they are not treating this issue with the respect it deserves. They are not acting in the best interests of Irish citizens.

'Three strikes and you're out' is not a game.