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Nod, Nod, Bling, Bling: The Knowledge Predicate and Personal Enrichment

October 18, 2006 Comments off

YouTube, Grouper, Bolt: What do these companies have in common? A lot of hot air about the safe harbor provisions of the U.S. Copyright Act, also known as the “DMCA”. Speficially, the safe harbor as found in Section 512 of the Copyright Act.

Most people think that the safe harbor provides protection for a website that uses infringing works unless the copyright owner notifies the offending website that they are infringing. That group includes EFFluviati groupie Bambi (yes, I didn’t make that up) Bambi Francisco who writes an opinion column for Market Watch.

Think about that for a second, no more, just one second. Why would any copyright owner in their right mind agree that it is the copyright owner’s burden to catch the wrong doer and that the infringer otherwise can run and skippy scott free?

Easy answer: You’d be right. That’s not what the law says.

Section 512 requires that the website come to the law seeking protection–with clean hands. Meaning, you can’t be hiding your head in the sand and ignoring copyright infringement occuring on your website and then ask for protection when you’re caught. That would be an extraordinarily juvenile interpretation of a very serious rule that found its way into our jurisprudence in the US by a path that started in Geneva many years ago.

If it was the law that you could promote yourself as the biggest source for illegal copyrighted materials that you could copy and maintain on your servers until you were caught. You could get rich off of the backs of authors and artists and publishers and record companies and unions and the kid who sells maps to the stars’ homes. You’d be YouTube.

For example, Section 512(c) says:

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated
by or for the service provider, if the service provider—

(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.

Note: this “knowledge” is separate from a notice under the notice and takedown section, and is not connected to the notice and takedown process. This kind of knowledge is just if you, oh, say read a news story in which Doug Morris said he was about to sue you out of existence because you are infringing Universal’s copyrights. Or knew that works protected by, or likely protected by, copyright were on your system–and particularly if you were copying them yourself. It also places a burden on the service provider to act in the absence of a notice and take down letter.

Or, for example, you bought a company that you knew at the time was engaged in massive copyright infringement. In order to take advantage of the safe harbor, you would have to “act expeditously” to stop that bad behavior.

In fairness, there hasn’t been a lot of litigation interpreting this provision, but there’s about to be. This is my view, and I think the view of quite a few other people.

Now this is likely not the view of these sections that is held at the Stanford madrassah of one Professor Lessig. Yet there is not only an inherent logic to this interpretation of the provisions of Section 512, this interpretation has the benefit of being consistent with the plain language of the statute. Also what Mommy taught you–or should have taught you–at the breakfast table. And then there’s that great hallmark of our jurisprudence in the Judeo-Christian tradition with equivalents in most other cultures, the good old Ten Commandments.

The current problem for the acolytes of Professor Lessig is that this time it’s not some thinly capitalized revolutionaries who are going to take the fall for following his advice.

It’s Google.

While My Guitar Gently Weeps

October 12, 2006 Comments off

There is a lot of speculation about why YouTube hasn’t been sued yet. I think the reason that YouTube hasn’t been sued yet was because they started early trying to make deals with the major labels and generally trying to make nice with the big players.

Where YouTube (and, frankly, Google and other online companies) stumbles is that they don’t understand the complexity of the big and small copyright owners, publishers and labels, artists and songwriters, performance and distribution, sync and master, US and ex-US–all of which is daily life in the creative community and has been one way or another for a couple centuries. There is also a complete lack of appreciation for small copyright owners (including more defenseless (read moneyless) artists) who Google should view as their primary audience.

What YouTube sells is a cyber version of the casting couch. Hey baby, I’ll make you famous! But just like the casting couch–not so much. There is the potential for anyone to get a lot of “eyeballs”, but it’s just a potential. Of course the real problem with “eyeball” driven business models is that it’s kind of hard to tell if having a bunch of eyeballs on YouTube results in a bunch of eyeballs on MyTube and whether a bunch of eyeballs on MyTube results in some bling bling in the CashTube.

Personally–I think if you’re already famous, you might be able to sell some stuff, but if you’re not, I don’t think you will. I’m willing to be educated otherwise, but I don’t think free content sites and free-rider content sites like YouTube attract people who want to spend money on content. When you consider that the average number of viewers of most of the music videos (except the already famous ones) up on YouTube barely equals the cume of a P3 reporting station and that those viewers are dispursed all over the world–unclear to me if YouTube is all that. (A P3 reporting station is the smallest radio stations in the Arbitron rating system of radio stations, usually in a small market with a weak signal. Kind of like being on a 25,000 watt radio in Abilene, Kansas, Tonopah, California or Waco, Texas.)

Take the 130,000 plus views of one of the 9,500 Beatles videos, for example. Hmmm…how many videos does it take to violate the knowledge predicate of Section 512(c) of the DMCA? Ten? A hundred? A thousand? But surely 10,000?

Oopsie. How ever did those videos get there? I guess they haven’t been reported by the community as “illlegal acts”.

Selling advertising is almost as great a bubblegum fix on a bad business plan as “make it up on volume” another hallmark of the Skippy Dotcom, Bubble 2.0 crowd.

That’s a great name for a Japanese anime series, eh? Bubblegum Fix. I like it. They could have little superheroes called Sergei, Eric, Chad and Steve. The Four Kings. But I digress.

The Two Brats

October 11, 2006 Comments off

In the words of Guy Forsyth, “Americans are freedom loving people and nothing says freedom like getting away with it.”

The fact that is often lost in faculty dining room debate is that YouTube is a copyright infringement machine. This is a fact that is not lost on copyright owners whose works are infringed.

Now understand–it is popular to mock copyright owners as being greedy when they simply want to have their rights respected. Such mockery is a holdover from the Metallica lawsuits (“Fire, good, Napster bad”), and has become part and parcel of the tactics of the “hate copyright first” crowd. I’m not talking about rock stars getting richer, although that may happen as a result of respecting copyrights. But just because you think Lars wears his pants too tight doesn’t mean you throw out the rights of an untold number of artists in a rush to have the joy of making fun of a famous person. I still think that the Metallica lawsuit was one of the dumbest enterprises an artist ever got talked into, right up there with “Captain Copyright”.

I am not suggesting that all technology companies should be sued all the time. What I am suggesting is that the way that YouTube handled the situation requires a copyright owner to sue in order to get YouTube’s attention. Without being critical of how YouTube got to its deals with major label copyright owners, YouTube/Google could quite easily now make terms available to all other copyright owners, including songwriters and music publishers. In fact, if one truly intended to “do no evil” and if one really didn’t want to take an overly legalistic approach to rights–maybe it’s better to offer terms voluntarily than saying “make me”. Unless you’re a brat who wants to hoarde all the candy.

Some have tried to distinquish YouTube from other cases because they have deals with some rightsholders. I would suggest that it is quite true that this is a different case than Napster, Kazaa, Pirate Bay, Morpheus–this is a direct infringement case. YouTube converts files uploaded in a variety of video formats into flash. YouTube makes the copy themselves. I’m sure they would argue that the user is making the copy with the tools that YouTube provides, and yes, maybe the dog really did eat my homework. I think that is likely to be found to be a distinction with a difference only measured in a lack of spine and willngness to be held accountable for one’s own actions on the part of YouTube and its employees. While Google’s executives may be morons, they surely are not so stupid as to allow the deal to close without witholding a substantial sum from the purchase price for indemnity claims of all stripes.

Like all these cases–they knew exactly what they were doing. They were trying to get away with it. They were trying to get something for nothing.

The YouTube stockholders have pocketed more money than any artist will probably make in their lifetimes, and they did it on the backs of artists everywhere, both professional and shower singers.

The YouTube founders refer to themselves as the “Two Kings”. Time will tell. My bet is that they will rue the day they ever had the shameless audacity to gloat so publicly about theft so large.

Or as John Lennon once wrote–how can you sleep at night?

If there ever was a time to revisit the “safe harbor” provisions of the DMCA, this is it.

YouTube Founders: Own Nothing, Have Everything!!

October 7, 2006 Comments off

“Welcome back my friends to the show that never ends…
Step inside! Hello! We’ve the most amazing show,
you’ll enjoy it all we know, Step inside! Step inside!
We’ve got thrills and shocks, supersonic fighting cocks…

Roll up! Roll up! Roll up!See the show!”

“Welcome Back My Friends to the Show that Never Ends”
written and performed by Emerson Lake & Palmer
From Pictures at an Exhibition
Copyright 1972 Warner Bros. Records

Skippy is BACK and he’s B-A-D!! If the Google rumor is true, the “hate copyright first” crowd at Google are about to make YouTube founders rich beyond their dreams. Well…maybe just rich. And what do Google stockholders get out of it? Traffic? Maybe, but I think Google may be getting something more. Besides the copyright infringement lawsuit of all time.

It seems entirely plausible that YouTube is copying–in what may well be direct and willful copyright infringement–the videos that are uploaded to their “service” so that they can be transcoded into flash. That would suggest that YouTube is keeping a copy of the works somewhere on their servers–that is, a copy that was made by YouTube. I want to hear the wailing of the EFFluviati on this one. Fair use server copies, I’m sure!

Making copies of infringing works on your servers is different than Napster, or Grokster, or Morpheus, or Kazaa. Even the infamous Pirate Bay isn’t that flippant. None of those companies (all losers in their respective litigation) made or maintained copies of the works that were infringed. These were all secondary liability cases. Direct infringement was stipulated, not proven, because the defendants had not plausibly committed direct infringement.

The problem that Google has is the same problem that a lot of people have who don’t understand that Professor Lessig lives in a fantasy world. These acolytes of the Nutty Professor don’t get that there is a law out there. Every time, and I mean every time, Lessig has tilted at that law he has resoundingly lost. But he goes on and his clients who believed his drivel are left to pick up the pieces of their lives after relying on his bizarre legal theories. I don’t know that Lessig is advising Google on this acquisition, and I don’t know that he is even qualified to advise as to the Sarbanes Oxley compliance elements of buying company dedicated to profiting from copyright infringement. But–I don’t know of any other person who would give an opinion that there wasn’t at least the very strong potential for a determination of massive and probably willful copyright infringement occuring every second of every day on YouTube. We know that there is at least a close financial relationship between Lessig entities and Google at the Stanford madrassah, so it is not entirely crazy to speculate that Lessig or other members of the EFFluviati are advising Google with more of the novel ideas that are now lying on the ash heap of history.

It is hard to comprehend how Google could possibly think that they could acquire YouTube without dealing with the copyright infringement issue. And yet the issue is so obvious that I can’t see why it doesn’t make YouTube radioactive.

We’ve already had the spectacle of public companies treading extraordinarily close to the line in copyright infringment. Remember dancing cows chanting “rip mix burn”? But Apple is now the solidest of solid citizens in our quest to legitimize the online music space.

However–none of these public companies were stupid enough to buy a copyright infringement machine. Even Mittelhoff didn’t buy Napster. This is what comes of letting Yahoo! get what is apparently a pass on their Webjay acquisition, a company that is Napster on a playlist. If you don’t have a zero tolerance policy for copyright infringement, the Lessig-ists will think you’ve gone soft. Make no mistake–this is war. They want to obliterate us. And now they have brought their Ajax to the battle in the form of Google. If we blink, we’re done.

I would also point out that if there is some idea that YouTube could wash away their bad behavior in a “prepack” bankruptcy or some similar artifice, they should think again. There are several recent court decisions directly on point that would prevent a company from washing its sins in the bankruptcy waters, and the law seems very clear to me that an individual can simply forget using bankruptcy as a way to avoid liability for copyright infringement (or any other IP infringement).

I am of the camp that believes that at least certain record companies will go after officers and directors of YouTube on a theory of personal liability in very short order, so if I were those folk I would make sure that I had some kind of figleaf and a litigation fund. It’s likely, if not a certainty, that directors and officers insurance will not only deny coverage for the claims but also for the legal defense, so the directors and officers will be on their own. I hope the YouTube founders remember Lessig fondly when they’re taking out a third mortgage on their houses to pay their legal fees.

If it’s true that YouTube makes copies of the infringing works before making them available–which it probably does–then if Google buys YouTube, Google gets copies of all those videos. As I noted in another post about Google’s “Final Library” project that includes Google Books, “…[t]aken in the larger context of Google’s oligopolistic rise in search, one can see how it is to Google’s advantage to limit the rights that the creative community can assert against them, including the ability of celebrities (or private citizens) to keep their children’s medical records out of public view—forever. For after books comes every piece of information in the world. And if you think that’s paranoid, realize that the Library Project is inspired by The Final Encyclopedia by Gordon Dickson, a science fiction book about a database that was exactly that comprehensive. I know how sk8r boys love their sci fi, but sometimes sci fi is best left as just that–fiction. “

If Google buys YouTube, then they would gain overnight a library of all kinds of content, user generated or otherwise. Now what might Professor Lessig have advised the Berkman Center acolytes at Google that they could do with that?

So here’s a thought about user generated content sites…why should YouTube make all the money? Why shouldn’t they share it with everyone who’s posted? And have a pool for everyone they’ve ripped off? A big pool. Maybe 99.99% of the purchase price?

Of course that’s actually called “damages”. Just ask Michael Robertson.

And this isn’t even addressing the rights that music publishers will have against YouTube for infringement of the rights in the songs. It is entirely possible that YouTube’s counsel and Google’s counsel don’t understand that music publishers have co-equal rights under copyrights in the songs that are in these videos and that the videos may not ever have been cleared for third party exploitation. Meaning that the record companies don’t control all the rights for the 9,000th time.

And by the way–this is all just in the US. We haven’t even talked about neighboring rights, moral rights, and other goodies that mommy got for Chaddy.

This entire enterprise is a joke. I would LOVE to see the Sarbanes Oxley materials on this acquisition. I can’t even begin to comprehend where you would start to unpack it, the flaws are so immense. And all the stockholder class action lawyers have got to be licking their chops. It’s very simple. YouTube are pirates. If Google buys YouTube, Google is a pirate. YouTube are defiant and fly their pirate flag high and proudly.

YouTube is not asking for quarter. Fine. None will be given.

So welcome back my friends to the show that never ends.

Morons of the world, unite!

October 4, 2006 1 comment

I think Mark Cuban is a funny guy, and he also happens to get it right occasionally. In a recent statement to an advertising group, Cuban said, essentially, that anyone who paid a stupid multiple for YouTube was stupid. A “moron”, actually, because YouTube was going to be sued out of existence and the fact that they’re delivering massive numbers of eyeballs wasn’t going to save them.

I tend to agree with Cuban, but maybe for different reasons. I think everyone is clear that YouTube is able to deliver “massive numbers daily”…for YouTube. The question for an advertiser is the same as it always is with media buys, which is how much of that “massive” audience can YouTube deliver for ME.It’s really the same issue as legitimizing p2p–if you have a community of people who are brought together with the promise of getting stuff for free, and largely illegally at that from the looks of it, why is that good evidence that YouTube attracts the right kind of “eyeballs”—meaning eyeballs that they can charge for, for people who buy things.

It would be one thing if YouTube could say (as can Yahoo!) look, I attracted this huge audience, and I sold 20,000 concert tickets in 4 minutes! I exaggerate, but only a little. To my knowledge, NO ONE has had that experience with YouTube or Pirate Bay or Kazaa or Morpheus.

Not that there aren’t plenty of people who want to expose their products to a large audience, but at some point the price that people are willing to pay to reach that audience is going to relate to how much that audience actually buys. This is like one of our home town bands that was at one point the most downloaded track on Kazaa—which resulted in exactly zero financial benefit to them from any revenue stream, as well as negligible PR value.

The lesson? Don’t be surprised if you don’t benefit from people who take your product for free. Or to paraphrase Jim Griffin, your biggest enemy is obscurity and you can still be obscure if a million people download your track for free. Only someone who had never sold records would fail to understand that if you give away unlimited quantities of your record for free, don’t be surprised if no one buys it. This is particularly true in the atomistic environment of Kazaa, Pirate Bay or Morpheus. Or YouTube. Show me how I can connect with fans and stay connected, then maybe I will pay you something for that connection.

But we’ve seen a resurgence of Skippy-ism lately, and people aren’t asking the hard questions they really should be asking. So like I said, it’s great for YouTube, it’s just not so great for ME.

Certainly there is a value for a company like Coke to use the massive eyeball sites for building brand recognition over the long haul, and there’s also value in adding another 20 or 50,000 units to the first week sales on an already hit record. But what about a new product or a new artist? Does advertising to people who are attracted solely because of free stuff really make that much sense?

The day that YouTube can demonstrate a consistent, repeatable causal connection between advertising on YouTube and sales, then Cuban will look like the “moron”. But until that happens….Hellloooo Skippy Dotcom! He’s baaaaack!

I think what Cuban is saying is that there is no rational business justification for anyone to buy YouTube, particularly not at the grossly inflated prices that have been thrown around. And Cuban is the reigning authority on selling companies at grossly inflated prices. I tend to agree with him, though, particularly this statement: “”User-generated content is not going away,” he said. “But do you want your advertising dollars spent on a video of Aunt Jenny watching her niece tap dance?””Somebody puts up something really good and you get, what, 60,000 viewers?” Cuban added during the event at Advertising Week in New York.”

I think that point’s pretty well taken–the worldwide cumulative audience on many of the most popular Internet sites is barely that of a P3 or at best a P2 radio station if you measure plays, not hits.Here’s a test for you: Start charging $1 a year to access YouTube, and see what happens to the “massive audience”. My bet is that the traffic drops by half in 30 seconds because these free sites attract the can by, won’t buy audience who also believe that information wants to be free, but for a different reason. That’s not good news for an advertising buyer who’s worth their salt.

As far as the legality goes, YouTube is a prime example of the different spanks for different ranks standard that’s crept into industry litigation strategy of late. It’s rapidly becoming a cost-benefit as opposed to a zero tolerance standard as far as I can see. The jury’s out–so to speak–on whether that’s a good thing.

I tend to believe that for videos that have been cleared by the label for commercial exploitation, the label probably has the rights for use on YouTube. There is the further question of how to identify any of these videos as having been cleared or not, or even more fundamentally to identify any video as anything. Literally anything, much less mine or thine. And then, of course, if you can identify the videos can you do anything with that information. If you are going to use any method of cataloging that data, what will you use to identify particular videos, and how reliable is that information, bearing in mind the many bad experiences with metadata filtering as well as Judge Patel’s admonishments in the Napster case.

This not to mention how to monitor and track the carving up of videos and use by amateurs. There are a small fraction of videos cleared for commercial exploitation compared to all audiovisual assets of a major record company, which will date back to some time around 1975 or thereabouts. Labels have their own internal “long tail” and there may be some value in getting some money for these assets. But not if clearance costs are more than you would make in the first year or two in even the rosiest of rose colored glasses.

I’m sure all these questions have been considered in great detail by all concerned and I for one am eagerly awaiting my enlightenment of how these problems were solved like a choirboy with his eye on the absolving wafer.

There’s another school of thought which is that you do a short term deal, get whatever money you can now, and if YouTube isn’t in line with industry norms in 6 months or a year, then you sue them silly.

Hard to know which it’s all going to be, but at this point I think that YouTube has a long way to go, and particularly a long way over the hurdles of the knowledge predicates of the 512 kinda sorta safish harbor of the much hated DMCA.

I’m willing to be educated otherwise, but I wouldn’t bet on the “moron” and against Cuban on this one.

Enough with the banning…

October 4, 2006 Comments off

Maybe I live under a rock, but I didn’t know about the latest in the industry’s game of intolerance one-upsmanship in the case of Transworld and the Scissor Sisters that I read about on Steph Wills’ blog.

I actually don’t care if its abuse of power, media consolidation, hatemongering, or whatever–it’s just uncool to retaliate against an artist for, in this case, being pretty damn funny. Artists are supposed to do more than entertain, that’s why Dean Martin was called an entertainer and Bob Dylan isn’t. You may go to a Bob Dylan show for many reasons, but I would bet that being entertained ain’t one of them.

You should expect an artist to challenge your thinking. Some of them do it with subtlety and some of them don’t. But you don’t beat them down for doing it, or one of these days you’re going to wake up and find that all you have are a bunch of mealy mouthed entertainers and NO artists.

I can’t quantify the number of times that artists have told me they don’t say whatever because they don’t want to end up like the Dixie Chicks. I disagree with Steph a bit on this–it’s not bad business because Macy’s loses to Gimble’s, it’s because it’s surly, it’s mean, it’s small minded and it’s WRONG.

Shut up and sing yourself.

Listen to the Stopped Clock, Part 2

October 1, 2006 Comments off


Tim Lee and I had an exchange on his Technology Liberation Front blog that I thought might be instructive on a topic we’ve dealt with before both here and on Kings of A&R: Avoiding unknowing grants under the Creative Commons license. You remember Creative Commons: Professor Lessig and his acolytes who “changed the way we think about copyright” according to Jonathan Fanton, the radical president of the MacArthur Foundation (and former president of the New School for Social Research). I’m sure the bumbling Creative Commons has changed the way MacArthur Foundation thinks about copyright. It started with Tim’s posting “Listen to the Stopped Clock” (meaning me). But first, a little motif about luddites and stopped time pieces from Pulp Fiction by Quentin Tarantino & Roger Avary (Copyright 2004 Miramax Films) and performed by Christopher Walken:

CAPT. KOONS

This watch I got here was first purchased by your great-granddaddy. It was bought during the First World War in a little general store in Knoxville, Tennessee. It was bought by private Doughboy Ernie Coolidge the day he set sail for Paris. It was your great-granddaddy’s war watch, made by the first company to ever make wrist watches. You see, up until then, people just carried pocket watches. Your great-granddaddy wore that watch every day he was in the war. Then when he had done his duty, he went home to your great-grandmother, took the watch off his wrist and put it in an ol’ coffee can. And in that can it stayed ’til your grandfather Dane Coolidge was called upon by his country to go overseas and fight the Germans once again. This time they called it World War Two. Your great-granddaddy gave it to your granddad for good luck. Unfortunately, Dane’s luck wasn’t as good as his old man’s. Your granddad was a Marine and he was killed with all the other Marines at the battle of Wake Island. Your granddad was facing death and he knew it. None of those boys had any illusions about ever leavin’ that island alive. So three days before the Japanese took the island, your 22-year old grandfather asked a gunner on an Air Force transport named Winocki, a man he had never met before in his life, to deliver to his infant son, who he had never seen in the flesh, his gold watch. Three days later, your grandfather was dead. But Winocki kept his word. After the war was over, he paid a visit to your grandmother, delivering to your infant father, his Dad’s gold watch. This watch. This watch was on your Daddy’s wrist when he was shot down over Hanoi. He was captured and put in a Vietnamese prison camp. Now he knew if the [Vietnamese] ever saw the watch it’d be confiscated. The way your Daddy looked at it, that watch was your birthright. And he’d be damned if the [Vietnamese] were gonna put their…hands on his boy’s birthright. So he hid it in the one place he knew he could hide somethin’. His ass. Five long years, he wore this watch up his ass. Then when he died of disentary, he gave me the watch. I hid this uncomfortable hunk of metal up my ass for two years. Then, after seven years, I was sent home to my family. And now, little man, I give the watch to you.

Tim posted:
Chris,
Your article “Carefully Co-writing without Creative Commons” doesn’t appear to be a critique of the creative commons license so much as an extended exercise in sneering at the CC license. You tell people to read the license, yet you appear not to have read the license yourself–or if you did, you couldn’t be bothered to make a good-faith effort to interpret its terms.

And then there are cases where your criticisms appear to be completely off-base. For example, you state:

The first problem with Creative Commons is there is no Creative Commons “legal code” for a song. Given that Creative Commons and their fellow travelers the Electronic Frontier Foundation, Public Knowledge and other front groups don’t have a clue about the music business for one thing and what a song is for another, this is not surprising.

If you look at an actual creative commons license, and you’ll find that the word “song” doesn’t appear once in it, whereas the word “recording” appears three times, and the license specifically mentions performance royalties, mechanical rights, and statutory royalties. Now, I’m not a lawyer, so I don’t know if those provisions are well-crafted. Maybe they have loopholes big enough to drive a truck through. But if so, you never get around to explaining what they are.

Later in the post, you write:

It is also not clear to me if the “original author” retains any rights under a Creative Commons license. For example, if the “original author” puts the work in what is effectively the public domain, does that mean that the original author can still exploit the work commercially? Or more accurately, why would the “original author” want to exploit the work commercially if everyone else could use it for free? I don’t know, but if anyone figures it out, please let me know.

I find it hard to believe you’re really unaware of the fact that the Creative Commons license has a non-commercial license option that allows personal use but requires the author’s permission to exploit the work commercially. Moreover, the question of which rights are retained by the author is not a mystery–it’s spelled out quite clearly in the license itself. Now, maybe you think the terms of the contract reserving rights to the author have loopholes or other problems, but to this non-lawyer’s eye, it appears to state pretty clearly which rights are reserved by a CC license. It strikes me as disingenuous to pretend these terms simply don’t exist.

In short, it’s obvious you don’t like the CC license, but it’s not clear why. Most of your arguments are at best unsubstantiated and at worst downright misleading.

Posted by: Tim at October 1, 2006 12:20 PM

Posted by: Chris Castle at October 1, 2006 1:47 PM:

Since you brought it up–the most fundamental, a priori distinction that a new music lawyer must understand is that in each sound recording there are two copyrights: the copyright in the sound recording, the circle p, and the copyright in the musical work that is embodied in the sound recording, the circle c. The circle p and circle c are frequently owned by different people or companies.

Now you should be able to stop right there and see that if Creative Commons catagorizes their licenses based on FILE TYPE as opposed to COPYRIGHT TYPE, you will probably get the WRONG result much of the time, meaning that there will be no proper treatment of recording and song in the grant of rights. In fact, you will get the wrong result so frequently that it’s almost not worth talking about the random instances where you get it right, unless you’re drafting for monkeys with dartboards. Which I’ve never been asked to do.

This is why music lawyers and copyright lawyers find the whole Creative Commons license saga both laughable and scary.

In case it’s not obvious–talking about a “mechanical rights” in an “audio” license that doesn’t address the circle c copyright is GIBBERISH. First of all, “mechanical right” is kind of a ham handed way to describe the reproduction right of the owner of the copyright in the musical work. It is a term of art, true, but why use an undefined term of art in a license that is to be used largely by laypeople. It is also not a great way to deal with a grant of rights in a global license that is designed to be applicable in any country of the world.More importantly–why use a term of art applicable to songs in a license for “AUDIO”. A fair reading of the CC audio license is that it is intended for recordings. So why talk about mechanicals in a license for recordings?

I’m sure everyone’s eyes are glazing over right about now but that is my point. It’s not the unified field theory, but it’s complex, inside baseball stuff, and the CC license simply does not work. To coin a phrase: You’re fired. Or rather: They’re fired. I don’t expect you, Tim, to take the time to figure this stuff out, any more than I expect an artist or writer to do the same. But I do expect more–much, much more–of the folk from the Google Law School.

It would have been so easy for the Creative Commons drafters to say “Song License” and “Recording License”. They didn’t. Now what might have been the cause of that failure? Aside from there being a fine line between stupid and clever. The only answer I can come up with is that they thought they understood, and when they found out they were wrong–which I firmly believe they now know–they are too embarassed to admit it and don’t know how to fix it.

The point I am making about what rights the original author retains is more directed (as is the article) at co-writes. Now, trust me enough to tell you that co-writes are very, very, very common in the music industry as any major (or minor) dude will tell you.

The Creative Commons license simply does not address this reality. It’s just not there. Without intending to cast aspersions, I will tell you that I think the reason it’s not there is that the entire Creative Commons concept would not work, or certainly would not scale, unless all the co-writers agreed to the CC license. And since it’s hard to get co-writers to agree on splits much less license terms, why give them the chance?

The point of my article is that no one should co-write with anyone who intends to use a Creative Commons license, in any of its species, unless they too intend to go along with each CC license. The “original author” of a co-written work is ALL the writers. The CC license does not make this distinction. So how can anyone know with certainty what rights each co-writer–i.e., the “original author”–retains unless all co-writers are party to the CC license which doesn’t provide for co-writers? Particularly when this issue is not explained at all by Creative Commons or ever addressed in the license. The point I make is that I find it confusing. Maybe you don’t, but I do. But I’m just a country lawyer and I’m not as smart as you city fellers.

I think it’s pretty safe to say that anyone TAKING a CC license would have no idea if there were any co-writers or what they thought. The licensee would be pretty innocent, which makes it all the worse.

The way that the music industry has solved the co-writer problem for, oh say a couple hundred years or so, is to have an administration agreement between or among co-owners of copyright that applies during the copyright term. It would have been very simple for Creative Commons to post a simple administration agreement, or even explain the co-writer issues in the license itself. But that would require co-authors to “sign” a click through agreement which is an issue that has kind of a dearth of case law. Or–and here’s a shocker–print it out and sign it.

Ooopsie.

So–there is a difference between Creative Commons the organization which I hear receives a lot of cash–and the Creative Commons license. The idea of a gratis license is certainly nothing new, but the idea of empowering Lawrence Lessig by giving away your works is kind of a new, new thing.

These are not arguments, by the way, they are facts. And I’m not the only one bothered by them or keeping an eye on the situation in case government intervention is needed.

An argument would be “I think CC is bad/good because writers should/shouldn’t be able to give their works away to help Lessig get grants and here’s why…” I take no position on whether the idea of the CC license is good or bad, anymore than I take a position on whether a copyright owner should be able to grant a free license on their own as copyright owners have been able to do for several hundred years before Creative Commons came along.

I am trying to understand its effects as drafted–I’m talking facts here. A fact is–the CC license is sloppy and can have unintended consequences, so co-writing songwriters should have an agreement amonst themselves not to use it, just like they can, and frequently do, have an agreement amongst themselves not to license for hygiene products.

CLC posting Copyright 2006 Christian L. Castle. All Rights Reserved.

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