We are seeing a rush of music services from Dell, WalMart, Coke, Pepsi, and Apple. The barbed wire mess that is modern copyright practice was created by the RIAA and ASCAP, and now the digital era makes it impossible to get all the rights sewed up in time to escape DOJ subpoenas. The major labels were in a hurry to show that they were not acting as a cartel and refusing to license.

One little detail that Steve Jobs and Pepsi are overlooking. Legislation is still up in the air over how to sample or collect digital royalties. In plain English, the flat rates negotiated between the vendors and RIAA will not pay artists. Granted, Steve Jobs may not care that artists get paid, that's not his job. Nor has Apple considered that the best music in America isn't on RIAA labels.

I'll give you a Copyright For Dummies tutorial and promise to keep it simple.

What scholars call "divisability of copyright" or "bundle of rights" is good in one sense, in that you, the songwriter, can arrange for collection of royalties by hiring a publisher and a PRO for worldwide audits. Splitting your song creation in half. That's good.

In older times, before 1976 changes to the Copyright Laws, you didn’t need to hire an attorney to fill out a copyright form. Fill in your name, enclose $10 and a lead sheet and you’re set. The limitations were abolished that required you to print the © logo and your address at the bottom of the published sheet music. Those requirements are not even taught in law schools anymore. Pointing out the necessity once again, don’t rush legislation through, (especially rubberstamping industry-written laws), due to unintended consequences. These days, it is impossible to find out who is the song owner from whom to request a license. This raises the cost of distributing or re-using music, (called a "transactional cost") and in free market theory, will be corrected by simplicity and elegance of legislation. The market will kill anything that is not efficient.

However, the need for sampling radio broadcasts and paying songwriters is called a "performance." That's handled by ASCAP or BMI. A percentage of hardgoods sales by record labels is called a "mechanical." That is handled in a monopoly called Harry Fox agency. Over time, this monopoly has created lethargy and incompetence, and the natural tension that should exist between ASCAP and HFA has been blurred, in that the same board of directors in both groups is virtually the same.

It is odd how Harry Fox caves in during congressional legislation.

Both of these practices are compulsories. Don't let someone kill the conversation by saying that compulsories are bad regulatory intervention, copyright itself is a government concept. Compulsories and consent decrees are the engine on which you depend to record your own version of someone else's song, and the freedom on which radio & TV relies to broadcast music without seeking the various owners' permission. And don't think for a minute that radio and ASCAP didn't historically (or hysterically) fight these restraints to the death.

Consent decrees are good.

In the apparent need to set up digital royalties, Congress is stymied by competing claims to designate a shared music file as a performance (similar to a radio broadcast), a download, an upload, or what-is-it, a duck or a platypus.

You and I may say, that's silly, it's a new thing, let's not perpetuate the old gangster accounting systems. But billions of dollars are at stake, and the poor artist has no representative at the table when the pie is carved up.

In creating the copyright divisability mess, the entrenched players now find they cannot step in and take over the new digital royalty pool. They've come up with a cute solution, as usual, described offhand as a "clarification" that Congress should just sign over without digesting. Harry Fox agency has stood aside in the latest CARP Hearings, and says RIAA and Sound Exchange can handle our royalty collections. Remember, now, that Fox "should" be standing on a firm hand and demand the highest rates it should get.

What this amounts to, is that the RIAA has asked for exemption from anti-trust considerations in Section 114 CARP. A small detail that Congress should ignore. The RIAA will handle all royalties as one. Given its corruption in past accounting procedures, the Old World will be transplanted into the new.

Apple pays the RIAA, which promises to pay artists. In rushing ahead to implement music services, the individual artist contracts have been thrown into the dustbin. Use them for Kleenex if you want, they no longer have any enforceability.

The RIAA will not license full catalogue without reading business proposals from vendors who are "legitimate’ in their eyes. The RIAA need not justify who is accredited, or why they don’t like the accents of Australian Kazaa executives. Without knowing the confidential details of the payments negotiated between the RIAA and music sellers, we can only assume that a big upfront payment was handed over. How is music metered or Top 40 analysis sampled so as to pay artists? That doesn’t seem to concern anyone, least of all Apple.

After all, they are not an Artists Union.

Well, gee. The RIAA promised to pay the artists. Isn't that good enough?

It's not like they've ever lied to us before...

Dont be so hard on Apple. Yes. they use DRM. But really, can you expect to sell any decent quality music without it? Music people will pay for - any group that plays out of a garage doesn't count. The labels would never allow it. Their system is a lot less restrictive than any of their competitors.

I just can't wait for Delux_327 tosses up some hits on Cokemusic.com

in free market theory, will be corrected by simplicity and elegance of legislation. The market will kill anything that is not efficient.

Yes, however, copyright is not a freemarket, it's entire philosophy is based on controlled market theory where in that inefficencies will stay provided that efficent solutions are either too hard to implement or would push the market into free market theory.

sorry goldenpi, Apple is playing the bad guy too...

Tom, damnitall, be CAREFULL up there in that lion's den.

Yes Laizes Fair only works when external forces are not retarding its function.

RETARDING ITS FUNCTION

I suppose I should have said, "THOSE WHO advocate radical free market theories" I am no supporter of Ayn Rand. Quite the opposite. I was not clear in my language, in effect throwing free market hogwash back in the face of Libertarians.

Did I not clearly state "Consent decrees are GOOD?" Relying on Copyright is indeed relying on governance. You want protection for your works, admit it here and now that you're using regulation. Can we move on?

That doesn't make me a Marxist or property hater, or Leftist, which despicable terms Cato is going all-out to smear Lessig and Stallman.

Let's hold off the Free Source Internet discussion, or Open Communications Protocol for another day.

Yes, I want a hands--off policy for the internet. I am anti-regulatory in that regard. That means resisting coprorate rape and pillage of the FCC cable rules. The FCC needs to be entirely replaced by a new regime in the White House. All of them. Serious damage is being inflicted on the economy. If you accept the analogy of "the environment" then you recognize "first do no harm"---the ecology doesn't come back.

"any group that plays out of a garage doesn't count"

What if it's Paul McCartney or Sting's garage?

No protection. The only protection should be found in the work itself. If the work is worthwhile you will have the same chance of getting paid with or without protection.

Copyright is idiotic!!!

Gee, raoulduke1, just when I was seeing the green shoots of reasonable banter sprouting up, you had to go and say:

"No protection. The only protection should be found in the work itself. If the work is worthwhile you will have the same chance of getting paid with or without protection."

Wow. I think you belong on that utopian feel-no-pain planet I was talking about in another thread.

What kind of protection is there in a work? Nothing ! It is as helpless as an inanimate piece of flax or gold sitting out on a New York sidewalk. Without copyright, you may be famous and legendary as the author and creator of, say, Eleanor Rigby, but certainly not compensated if there were no copyright and no requirement to pay you for the use or duplication of a work. Straight into the public domain, anonymous and traditional, presto. You are asking for charity, like share-ware. Won't happen without legal protection and enforcement.

Hell, it is hard enough to get paid even when it is protected !

On another note, digital downloads should clearly be subject to mechanical royalties, and not performance royalties, as it is a transmission of product that can be replayed and is designed to be replayed, like wax or tape or CD. Performance royalty, as clearly stated, is for experiencing a work once, during broadcast, one which evaporates into the airwaves after broadcast.

For this reason I regret to hear that the processor of mechanical royalties, Harry Fox, has not been more vocal on the subject.

I completely agree that RIAA has their hands improperly in the mix and the till vis-a-vis running digital download royalty collection/distribution. What is the current status and upcoming prognosis on this topic ?



Copyright is idiotic!!!

umm... last line above was continuation of quote from RaulDuke, and obviously not what I think.

Makes a mildly inflammatory statement, though, doesn't it -- gotta like the contrast

"sorry goldenpi, Apple is playing the bad guy too..."

yo, what up, mr independent mmm, whatcha got goin besides your m&m ?
everybody is the bad guy, no good guys around
your mama makin' apple pie but no love to be found
sittin in a lonely room counting your critiques
prophecies of doom where no one ever speaks
the water is contaminated and spiked with LSD
we all babblin about the music commodity
everybody saying here is the hallowed ground
but bad guys all around and no good ones to be found

Very nice article, Tom. And I agree, George. Don't be hard on Apple, eh, goldenpi? What about not being too hard on Microsoft?? Just because Apple is smaller doesn't mean it's better. You can always champion the little guy, but someone has to be on top, and that company happens to be Microsoft. Apple had its time, and it is still around. Just as I expect Microsoft to continue being around when Linux rises to higher prominence.

:-:~ Phantom

This is the company that annoyed the labels so much with its "Rip, Mix, Burn" advertising campaign. They havn't gone entirely to the dark side yet. The Fairplay DRM system is completly ineffective, and apple knows it, but they dont do anything to tighten it up. I expect the labels are trying to make them.

Apple is bad. blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, no really, Apple is bad.

It's difficult to even parse this nonsense. Apple is bad because the legislation is slow, ineffective and tainted? Apple is bad because the poor whining artist is getting ripped off? Which artists? Beyonce? Outkast? Or you?

In my 20 years in the music business I cannot recall a time when my basic sympathies weren't with the artist. That said, far too many artists are mewling babies who were more than willing to sign their life away for some promise most junior high school kids know is bullshit. Then they whine they're not making any money.

Jeebus what a bunch of babies.

And what a load of irrelevant crap.

hehe... iceweasel.

I think I tend to agree with the whining bunch of babies bit, (and the trigger-happy and simplistic categorization of all that is "bad") but -- having said that -- the overall topic is relevant, certainly to artists.

Isn't it, after all, a tendency of human nature to complain about the success of others if you are frustrated in your own attempts to achieve the same -- and have in fact identified problems with a system which only makes it more difficult to not only thrive but simply survive doing what you aspire to do?

I wonder, how many of us involved in the field of music consider ourselves "artists", somehow different than "common folk", maybe more special, deserving better than what we get, how many of us are willing to forego economic rewards to pursue a higher path, or how many of us just want to strike it big, get over, get the girl AND the car AND the good life?


The response of protesting and complaining appears to hold true for truly disenfranchised peoples (e.g., victims of apartheid), as well as for babies, and a lot of things in between, unfortunately.

Hard to separate the wheat from the chaff, but it is probably good that we are trying to do so.

oops, did I just draw a parallel between disgruntled artists and religious extremists ? didn't mean to ...

Bet dollars to doughnuts iceweasel and fulana are one and the same. How do I know? Utterly incomprehensible paragraph-length run-on sentences. You should pick up a software program that automatically inserts punctuation marks, you know, those little ant-looking things that are not emoticons. Or a bullshit generator. Blah blah.