Archive for October, 2007

Book Review: Google and the Myth of Universal Knowledge: A View From Europe

October 30, 2007 5 comments

Today being Sunday, I found myself at Book People, our local independent bookstore. The onslaught against the independent bookstore that started with Crown Books, continuing through Barnes & Noble, Bookstar, etc., and now culminating in is almost complete. (Nothing against my friends at Amazon, but I find it all rather worrisome.)

What enables the independent bookstore to survive is selection. Selection that caters to readers, selection that is the product of the mind of someone—often the owner, and often the owner who is found at or near the checkout counter far too many days in a row–who is themselves a reader, often a reader with an extraordinarily wide range of interests and depth of knowledge. This is something that the big chains can’t really offer as they must go after the most popular books, ordered by someone behind a curtain somewhere.

I was at Book People to buy a replacement for my copy of The Cult of the Amateur (Andrew Keen take note) and I happened to notice a little book on the shelf below where Cult lived that had an interesting title: Google and the Myth of Universal Knowledge: A View From Europe. No one who reads this blog will be surprised to know that my hand reached for the book immediately after one reading of the title.

I had a feeling I knew what was coming, but when I read the author’s name, Jean-Noël Jeanneney (president of the Biblioteque nationale de France), I almost didn’t need to read the book for I knew what it would say. And sure enough it was about Google Library and sure enough it was about the cultural collateral damage of Google’s war on copyright.

There was one copy and I bought it immediately. I’m so glad I did, for I found myself nodding and laughing as much as I was struck by the depth and importance of understanding of the survival of culture and the resilience of its protectors such as M. Jeanneney.

* * * * * *
I was recently a speaker at the Commonwealth Club in San Francisco on a panel with, among others, my friend Tim Westergren who is currently CEO of Pandora. I have had the greatest admiration for Tim’s accomplishments with the Music Genome Project since the early days of Pandora’s predecessor Savage Beast, and remain convinced it is one of the best music preference engines ever made or conceived. At one point in the discussion Tim posed the idea of a global compulsory license for sound recordings based on the U.S. copyright law known generally as the Digital Millennium Copyright Act.

I thought, forgive him, he knows not what he does. But I said, “Oh, the French will LOVE THAT.” Our live audience, being made up of older folk, who were presumably more traveled, understood what I was trying to sum up in a pithy comment: Here is the Ugly American 2.0, live from the Palo Alto Mall. Tim may as well have been strolling down the Champs Elyseés in Bermuda shorts and sandals, chomping away on a Big Mac with supersized fries and synthetic mayonnaise dripping down his face.

I didn’t really want to get a laugh at Tim’s expense, but what he was proposing was typical of the kind of reaction one gets from Silicon Valley entrepreneurs who either don’t know or fail to see how damaging some of their ideas are to culture in general and ancient cultures in particular. Ancient cultures that survived the Romans, Carthaginians and Nazis, so don’t expect them to bow to the Great God Scale.

* * * * * *

When I was a young musician, I moved to Montreal for a few years and recorded and performed with the French Canadian pop artist, Diane Dufresne. Diane was a star not only in Quebec, but also in France, and particularly in Paris. (Paris, by the way, is a great place to have a #1 single.) My time in the Dufresne band was educational on so many levels, but it was an extraordinary vantage point for both the rise of the Parti Quebecois, and the reasons for its political success.

There are many who despise Rene Levesque, the leader of that party and later premier of Quebec, they lambast the pro-French laws and legal protections of the French Canadian culture that came to pass, but these condemners are also very often the people, or descendants of the people, who more or less got down on their knees and begged to have the English thrown out of power in Quebec by their treatment of the French Canadian majority in what is likely the last great revolution on the North American continent. Why? Because fundamentally the English Canadians did not understand that the French Canadians have a rich culture of their own dating back nearly 400 years in Quebec, and are also a part of the larger Francophone culture that is a foundation of Western civilization.

I fully believe that there will be a France and a French culture 100 years from now, 200 years from now, probably forever. And more importantly—they believe it, too. Anyone seeking to do business in Europe or seeking to do business with one of the world’s great cultures–particularly revolutionary cultures–ignores this fact at their peril.

The truth is—the English Canadians actually made it very easy for Levesque. But Quebec needed a Levesque to make that point. The moment still must find its leader no matter how ripe. A leader to exploit politically the unbridled hubris and cultural blindness of generations of English Canadians who largely ignored the French Canadian culture, that which was uniquely quebecois. Sure there were large swaths of low culture both in the city and in the country, or people who were trying to be part of the larger culture but not quite making it—like the piano tuner we were sent in the little town of Roberval who tuned to a concertina. At the same time, there were extraordinarily well educated, cultured geniuses such as Luc Plamandon and Andre Perry who brought Quebecois culture and musicians to the international stage. Not surprising for a city that boasted two music conservatories teaching in French only classes.

So when I encountered the Google Library project, I thought to myself that there is not a single person involved with this project that has the standing in the world community to make this anything but a typically American enterprise that is more likely to destroy world culture than to have the sensitivity to address the extraordinarily delicate issues of cultural preservation that present themselves in the hierarchy of search. When you consider that the idea for Google Library apparently evolved from a science fiction story, it is easy to see that the consideration given the planning of the project has about as much depth as a child writing a book report based on a Classics Illustrated comic book.

This was the thought process behind my panel with Register of Copyrights Marybeth Peters at SXSW in 2007: Can Art Survive Google? Had I read Google and the Myth of Universal Knowledge at that time, I would have changed the title to Can Culture Survive Google? Set aside the extraordinarily bizarre interpretations of law that Google supports to feather its nest, set aside the simply weird lawyers and advice the company seems to court, set aside the soullessness that could permit Google to “honor” the censorship requirements of the Peoples Liberation Army in China—for this is how Google does business and this is how they would “organize the world’s information”—is there not something about Google’s methods that is destructive to culture? If left unchecked….We Americans are often too quick to accept a market solution to all problems due to the relative homogeneity of our commercial culture. Due to our vast markets and focus on assimilation (an idea that was originally focused on the assimilation of immigrants), we often lack the self-examination sufficient to anticipate the effect that our vast commercial influence will have on cultures other than our own—and it would be nice to anticipate this phenomenon, rather than to continually be reactingto criticism of our failure to address it in our dealings with others.

Thus–there is a huge difference between copying the world’s information into a database, and organizing the world’s information in methods relevant to the world’s cultures. One is an administrative task, the other intellectual. Google is good at copying things other people create. Whether they are also good at the intellectual task of organizing cultures remains to be seen, but they are off to a very, very poor start. So far, I haven’t seen anything in the way of public statements or actions by any officer of Google that suggests to me that the company has attracted leaders with the intellectual sophistication to even understand the task they have set for themselves. And there’s no reason why Google, aka the world’s biggest advertising agency, would attract the kind of leaders who would appreciate what M. Jeanneney is concerned with as such folk typically are not sellers of soap.
One can just imagine ad men high fiving the Googles–you finally figured out how to put advertising in books!! Right on, dude!! Let’s go for a scooter ride!

* * * * * *

Fast forward to 2005, and I again found myself in Paris (although Bruno Coquatrix [who first booked us in his L'Olympia], Eddie Barclay [who released our records in Europe], and some of the other grand old men of the French music business whom I’d had the pleasure of knowing, were regrettably gone). This time I was working on legislation to protect authors and record companies from the ravages of illegal p2p. In the course of these meetings I spent time with the cultural leaders of France, both in and out of government. I was struck by the strength of a perception I’d not realized had taken hold—the Internet was a threat to the French culture (and in fact all non Anglo-American cultures) the likes of which no one had ever seen. And now it was not just the U.S. record companies, music and film, but now it was Apple and Microsoft, too. Soon it would include Google.

I have often said that the only thing French about Google France was the terms of service. This is unfortunately true of too many U.S. based companies doing business abroad, and has, of course, been a big problem for American companies doing business abroad since the end of World War II. I can remember a time when there were no McDonalds in France, when the Champs Elyseés was an entirely different looking place than it is today. When McDonalds opened a store on the Champs Elyseés I stood in front of it and cried for I felt something deep in the country’s zeitgeist had just been forever violated, a battle lost and that the sheer symbolic arrogance of putting that thing on this street was a poke in the eye to French culture and that nothing good would come of this.

Google, of course, is the direct descendant of that McDonalds.

M. Jeanneney does an excellent and insightful job of describing his concerns, most of which I think any right-thinking person would share, in their historical context and addressing a larger point that bears much repetition—if you devote your life to making money from the most popular sold to the lowest common denominator, you will miss everything that is interesting about life and culture. It is also important to note that he reaches his conclusions about what to do about Google in the context of French resistance to American culture dating back to the Marshall Plan—government intervention is required against the Leviathan. And I don’t blame him a bit.

* * * * * *

What I think most people hoped the Internet would accomplish is an exchange of ideas among the peoples of the world. What is happening is not that so much—it is the imposition of American ideas on other cultures, through language, through music, through film and news, all of which we have seen before, but now also through search. And search means Google. And Google means hierarchy or algorithm, a uniquely American focused algorithm, and at that a “most popular” notion, kind of a Wikipedia approach to telling you where to find things.Being president of the Bibliotèque nationale de France, Jean-Noël Jeanneney probably could be said to hold the title “Least Impressed by Wikipedia” in an absolute sense. I would speculate that he is interested in Wikipedia as a cultural phenomenon, sort of like if you could enter a Mini Cooper S in a Monster Trucks competition that would be a cultural statement of sorts.

We don’t really have a U.S. equivalent in this country for his role as president of the Bibliotèque nationale de France, just like we don’t have an equivalent of the Panthéon. There is a certain responsibility to being a keeper of French culture, the national identity of a country—“responsibility” doesn’t quite cover it. It’s more on the “sacred trust” end of the continuum

When Google first announced it was launching the Google Book Search project, they met with the Stanford University librarian, naturally, since Google already owns Stanford, they can count on their charges not making waves. The also got Harvard and the New York Public Library to sign up, then a library at Oxford.

And then they stopped.

Now why in the world would they not have had the sense to reach out to Brussels, if nothing else? Gallica (, the Bibliotèque nationale’s own digitization project, had been around since 1997, as had many others (Jeanneney points to the Million Book Project at Bibliotheca Alexandrina, as well as digitization projects in India, China, Spain, Chile, Argentina and many others). Given the intellectual tone deafness that we now knows goes hand in hand with Google and its dealings, it should not be surprising that the company’s hamhandedness has produced what M. Jeanneney describes as “…this movement against a globalization that not only would prove unproductive but would encourage bleak standardization.”

Read those words while standing in the Panthéon amongst the great luminaries of an ancient nation, and if you’re not ready to sing “Aux armes, citoyens!” and take up the gun against the Philistine invader from Mountain View, you have no soul.

For it is that very philistine hypercommercialism that is both the hallmark of Google and its greatest threat to culture. But remember—companies are people, and Google’s resources will be directed as its officers decide. So when we speak of Google as being a threat to world culture (remembering that it has one of the highest market capitalization of any company in the world so that’s not an idle threat), it is Google’s senior management who most embody that threat.

Recall Google CEO Eric Schmidt’s statements to the Wall Street Journal on the eve of the Viacom lawsuit: When asked to respond to the idea that “content” has intrinsic value, he said “prove it”. Which has to be one of the dumber, but yet illuminating, remarks to come from a Silicon Valley CEO on the subject of art and culture. No wonder M. Jeanneney tells us that “[t]he visit I received from several Google executives after the beginning of my campaign didn’t do much to reassure me.”

These statements echo and confirm one of the most important points raised in Google the Myth: M. Jeanneney writes, “What pays for the digitization of materials are linked advertisements from companies that have an interest in associating their image with old or recent works likely to promote that image. As a result, books will necessarily be hierarchized in favor of those best suited to satisfy the demands of advertisers, again, chosen according to the principal of the highest bidder [as is Google AdWords]. I wouldn’t want to see—although I’m amused by the thought—the text of Saint-Exupéry’s Le Petit prince accompanied by an ad for a sheep merchant.”

For me, I recently was in Paris and visited the tomb of Saint-Exupéry and felt myself overwhelmed to be in the company of the great hero of Night Flight, the existentialist as a Free French pilot. These emotions are unanticipated and difficult to explain, but they are the product of a lifetime of respect for authors and the joy of creativity.

So, when you have a CEO like Eric Schmidt who sits atop the greatest potential culture killer of our generation but who admits that neither he nor his company recognize the intrinsic value of music (or presumably culture), I simply cannot imagine a conversation between that unexamined man and the president of the Bibliotèque nationale de France. You see, Dr. Schmidt, in France they have a Ministry of Culture. It’s part of the government. If you can’t figure it out any other way, that alone should tell you something. Wake up. Don’t walk down the Champs Elyseés with synthetic mayonaise dripping down your face. Particularly not in the country with the best mayoniase in the world.

* * * * * *

Google and the Myth of Universal Knowledge is a must read for anyone interested in truly understanding the dominant impact of the Leviathan from Mountain View on world culture and the corrosive effect that an advertising, popularity based culture has on…well…culture. If we only did what was popular there would never have been an John Hammond (Stevie Ray Vaughn, Billie Holiday, Count Basie, Charlie Christian, Bruce Springsteen and the artist formerly known as “Hammond’s Folly”–Bob Dylan), Ahmet Ertigun (Ray Charles, Cream, Led Zepplin), Eddie Barclay (Charles Aznavour, Jacques Brel, Quincy Jones, Mirelle Mathieu, Diane Dufresne, Johnny Halliday), Herb Alpert and Jerry Moss (Joan Armatrading, Sting, Garbage, Gillian Welch, Ozomotli), Chris Blackwell (U2, Cat Stevens, Bob Marley), Berry Gordy (where do I begin?) or Sam Philips (Elvis Presley, Johnny Cash)—or a Tony Brummel (Taking Back Sunday) or a Martin Mills (Gary Numan, The Pixies). Neither would there have been an Albert Camus, Jean Paul Sartre, Jean Renoir—or James Joyce.

There is a world that existed before the 1s and zeros arrived, exists apart from them now, and will be here when they are gone. The question should be where does Google fit into that culture of our peoples, not where our peoples fit into Google–to Google’s profit.

If you have ever wondered about these things, you will find a friend, extraordinarily articulate fellow traveler and kindly mentor in Jean-Noël Jeanneney, who rigorously examines Google good and bad before reaching his conclusion, all in a manner befitting a person of great intellectual accomplishment (and political acumen, I might add).

“…Google Book Search even though its leaders have not yet publicly defined the details of their practices, already appears to be a poor model for schools, since it seems to lack any kind of classification established according to reasoned principles….Unless a culture organizes [its] information, society is condemned to accept the mere dissemination of information, harmful to intellectual clarity and to a rich and harmonious public life.”

“Make no mistake: without [the determination to find a local solution], not only will the common interest be threatened, but we will also see the global scales, in this realm as in others, tip toward the hyperpower of a dominant [commercial] civilization.”

And by the way Dr. Schmidt–you may think you do revolution pretty good, but you got a lot to learn from these folks. They invented it.
PS: A few excerpts from Google the Myth:

Staff of the Bibliotèque nationale de France pointed to numerous examples of scans with significant quality control problems from works of great significance to French culture. M. Jeanneney describes Google efforts as “mediocre” (a word of French origin, by the way as in “médiocre“)–and take it from one who knows, no one, and I mean no one, can cock a beady eye over their Gauloise and say the word “médiocre” with quite the disdain of a Frenchman.

Still shilling after all these years….

October 27, 2007 Comments off

So here’s the latest and greatest from the EFFluviati—“sign the petition” says the link you find on various webpages:“EFF is the leading civil liberties group defending your rights in the digital world. Sign the petition to stop the RIAA lawsuits!

Well you don’t say, I thought. How high minded and pure souled. And I’d be interested to see what “signing” means to Generation L. (I have had these arguments about what constitutes a valid digital signature ad nauseum with the younger set, so I’m always interested to see what they come up with to avoid dealing with that pesky pen and paper thing, not to mention the burdensome problem of actually knowing who is signing what.)

So sure enough I find the petition language (only valid for residents of the United States, I’m told), which I read carefully. I also look around to see if there’s anything about only “sign” this if the statements are true and if you believe everything in it, nothing like that. But we read on:

“To The United States Congress:
We are the customers and former customers of the member labels of the Recording Industry Association of America (RIAA). [Now how in the world would your average bear know what labels are member labels of the RIAA?]

We love music and will gladly pay a fair price for it, but we are outraged by the RIAA’s tactics in suing ordinary Americans for filesharing. [That would be the filesharing that was the subject of the Grokster case? The Napster case? Anyone care to point out to petitioners that filesharing is illegal?]

We condemn the RIAA’s choice to force the family of a 12 year-old girl to forfeit $2,000 – money that could have gone to feed, clothe and educate this honor student. We stand with the retirees, parents, children and others who have been caught in the RIAA’s line of fire. [Ah, yes, that pesky getting caught thing. Americans are freedom loving people and nothing says freedom like getting away with it. How about the guilty? Stand with them, too? Or does “others” cover them?]

We respect reasonable copyright law, but we strongly oppose copyright enforcement that comes at the expense of privacy, due process and fair application of the law. [So does that mean you don't obey the copyright law if you find it unreasonable? Presumably you find the Grokster case unreasonable since your side lost. Does that mean that the U.S. Supreme Court ruling in, oh, say, Grokster for example, is a violation of due process? Because you say it is?]

We urge you, as our representatives in Congress, to stop this madness. [An interesting twist: “our” representatives. I think the Congress actually represents the voters, right? Madness? Madness? You want madness, try Corynne McSherry saying that Silicon Valley doesn't have to listen to "Hollywood" (or anyone else, presumably)]

We oppose the recording industry’s decision to attack the public, bankrupt its customers and offer false amnesty to those who would impugn themselves. We call instead for a real amnesty: [Ah, you need amnesty, you're admitting filesharing is illegal? No they need amnesty? Or it’s not illegal? You’re trying to get Congress to make trading copyrighted works with a 100 million of your closest friends the law? Or is it already the law? But the EFF must mean that it is illegal, or why would they need “amnesty” ARRRGHHH!! I’m sooooo confused!! These EFFluviati are just so much smarter than us country folk!]

…the development of a legal alternative that preserves file-sharing technology while ensuring that artists are fairly compensated. [How about songwriters? publishers? roadies? club owners? recording studios? engineers? bartenders? wait staff? hotel operators? journalists? duplication plants? distributors? record stores? t-shirt makers? merchandising companies? record companies? tour bus owners? gas station attendants? all the charities we support like City of Hope, TJ Martell and Musicares? the kid who sells maps to the stars’ homes, and all the others who get laid off when the music business goes down?]“

But here it comes—here is the real reason this is all happening boys and girls:

“In signing this petition, we [meaning YOU] formally request that the Electronic Frontier Foundation (EFF), as representatives of the public interest, be included in any upcoming hearings regarding the proper scope of copyright enforcement in the digital age.”

Well, I don’t know what else needs to be said about that little newsflash. But isn’t it interesting that they didn’t say:“EFF is the leading civil liberties group defending your rights in the digital world. Sign the petition so we can get a seat at the table in Washington and continue to advance our agenda since it’s the only country in the world that care about what we have to say!

I guess that wasn’t a winner, they wanted to get you signing before you actually read the thing.

And they didn’t break it out either, like separately “click here to sign up for the petition” and “click here to appoint the EFF your representatives”. Nope. Didn’t do that.

So let’s take a look at that little “digital signature”, eh? There are boxes asking for name, address, email, etc. Now I’m not giving these people any info on me, so who can I give them?

I know. Cary Sherman. Let’s give them Cary and see what happens. (Sorry Cary.) Let’s see if they catch it.

So I put in Cary Sherman, 123 Any Street, Your Town, DC 20001, email

And presto chango, click here, and…Cary has signed up! Wow! It’s so easy when you don’t give a damn about accuracy or validity!!

What a wonderfully liberating experience!

Set free from the drudgery (no pun intended) of getting it right!

So now I’m taken to a page asking me to recommend a friend. Hmmm. Steve Marks? No, I’ll stop here with my little masquerade. Get thee behind me, Satan.

But I am tempted by a little link that says, hey kids! “See signatures so far!” Now confess—if I said to you, “See signatures so far” you would probably expect to see…well…signatures, right?Not in the anonymous world of the EFFluviati. But then of course if you don’t have any signatures, it’s kind of hard to show the signatures you don’t have, yes? (Digital signature fans, take note.)

No, when you click on that “see signatures” link you are taken to a page full of 5 or 6 digit numbers all in columns and rows. What is this? There are literally a couple hundred number sequences, like little serial numbers, all arranged in neat columns and rows under the heading “Those Who’ve Taken a Stand Against the RIAA!” like you’re at the Tomb of the Unknown or something (in more ways than one). It’s like you would have expected to see names, but instead you see numbers. And when you click on the numbers, the links point you back to the same page you were on when you clicked the link.

Weird. I try clicking a few other numbers and the same thing happens. Then I finally happen to hit on one that actually shows a few names, names like “O. Online Poker”, “T. Texas Holdem”, “P. Poker Rooms”, towns like “Google, CA” (must be Stanford?), “Świnoujście, ME”, “f, MA”, “Beverly Hills, LA”, “Beverly Hills, MI”, Dubai, “SCOTLAND!!, AK”, and my personal favorite “J. Travolta, Los Angeles”. And then there’s “r. little boys” of “George, AL“. No comment.

It’s so interesting to watch the Lessig-ites try to pull the same stunts in America that have (kind of) worked for them overseas (See: But Do Their Eyes Glow: The Children of the Lessig God and the Viking Pirate Kings), but this thing is just an example of really poor quality political organizing, in fact a textbook example of what not to do.

If you’re going to go to the trouble of having people sign a petition, there is no choice but to put feet on the ground with clipboards and get actual signatures from actual registered voters with actual voter registration cards. Doing this silly digital sign up may be easy and cheap to set up, but guess what–you get easy and cheap–and terrible quality–data. And you wonder why these people can’t advance a political agenda?

Did these people not learn anything from Lyndon Larouche?

Copyright 2006-2007, Christian L. Castle. All rights reserved. NOT subject to Creative Commons deed, license, or whatever it’s called this week by the self-serving shilling for the self-absorbed on the short con.

Chasing the long tail….

October 24, 2007 7 comments

I must confess that it is a happy day for me when I get through 24 hours without hearing anyone say “the long tail”, reading yet another lionization of copyright pirates in Wired Magazine (See: “Shawn Hogan, Hero“), hearing the words China, India and advertising used in the same sentence as “save our industry”, or better yet not reading the words long tail, China, India, advertising and save [their] industry used in the same sentence in a lionization of copyright pirates in Wired Magazine.
I have to confess I laughed out loud more loudly than usual when I read this post on Chris Anderson’s blog (, and my reply post is below:
“…I’d point out that the other group poorly served by the labels are those at the bottom of the curve, the many thousands of bands who fall below the radar of the hit-driven majors. I’d argue that they, too, have nothing to lose by letting their music go free, nothing to lose but the prospect of becoming indentured to companies stuck in last century’s model of monetizing music.”
Now dust off the ring ding crumbs and listen up, geekboy: Only someone who knew absolutely nothing whatsoever about the economics of my business would say such a thing about independent artists. The only thing separating independent artists from bankruptcy is usually selling merch and–yes–CDs off the stage. Artists who are good at this, and I’m fortunate to work with a few, add anywhere from 50% to 150% of the nightly receipts through “merch”.
So that means that some artists sell between $1000 and $2000 on average per show–on top of show guarantees–that is mostly made up of that stuff you want them to give away for free.
It’s not that these artists are “poorly served” by the major labels, Mr. Econobabblist. They DON’T WANT to be served by the major labels. In fact, PLEASE DON’T SERVE ME. It is that very ability to sell CDs, thousands of CDs, that make them able to get to the point where if they ever did want to take the king’s shilling, they wouldn’t get the hillbilly deal that these labels are foisting onto new artists, the so-called “360” deal.
Here’s a tip about the hillbilly deal: Take a poll of business managers for big artists and they will tell you that the average take home after paying mangagment and booking agency commissions, sound, lights, truckers, roadies, band, opening acts, taxes, hotels, food and per diems on the road is something like 15-20% of gross. Guess what share of gross the typcial 360 deal requires as a passive participation–if you ever get your paws on any profit at all?
May I suggest that you appear to be a smart guy, I have to think you are a smart guy or you wouldn’t be where you are, so I’m prepared to accept that you are at least not stupid. But before you start waffeling about a business you do not understand, try to learn a little about it.
And if you want to learn about the independent music business, give me a call. I have a few trap cases that need to get hauled up a few flights of stairs and you can start with that. And if you manage not to screw that up, I’ll let you do something difficult like inventory those CDs you think I should be giving away, you putz. And when you can inventory CDs in the dark in the back of a van hurtling through Winnemucca with a windchill of minus 10 degrees, maybe–maybe–they’ll let you ride shotgun next to the heater.
Copyright 2007 Christian L. Castle. NOT subject to Creative Commons deed, license, or whatever it’s called this week by the self-serving shilling for the self-absorbed on the short con.

Comcast Gets it Right: Why You Hate Net Neutrality if You Love Copyright Redux

October 22, 2007 2 comments

Readers of this blog will recall “Why You Hate Net Neutrality if You Love Copyright“, a post from 2006 that got a bit of attention. My general thesis there is that at a high level of abstraction (a) there are essentially two classes of traffic on the Internet, one legal and one illegal, and (b) if an ISP is not going to have the spine to shut off illegal file bartering on its network, the least they could do is make it very, very unpleasant for the illegal file bartering and substantially illegal social networking systems to operate. I think before you address any of the more nuanced issues in the “net brutality” debate, you have to deal with the legal vs. illegal issue, and I just can’t wait to hear how Google’s shills spin that one.

This is particularly true since “…more Americans are using file-sharing software than voted for President Bush…” as we often are reminded by the EFFluviati, so the problem is extraordinarily acute. It is also important to enlist the Invisible Hand wherever it can do the most good by making file-sharing extraordinarily unpleasant while at the same time clearly labeling the parasitic behavior as grotesquely antisocial (meaning it’s the kind of thing one can be expelled, fired or prosecuted for doing) and bringing as much stick to bear as one can afford—and offering a pleasant, socially acceptable and legal alternative (such as iTunes) or the program of the Principled Group (in contrast to the Unprincipled Group).

Of course–this means that anyone seeking to impose this burden would run afoul of the “net neturality” movement because in order to make this distinction, an ISP would have to make some choices about what to do about the illegal traffic and distinguish the illegal from the legal traffic. How would one make that distinction? The same way you can distinguish a dog from a duck. Life is full of uncertainty, and the Internet was not supposed to be a full-employment program for lawyers, including the Mystic Knights of the EFFluviati. Besides, I’m sure that pro-theivery ISPs will spring up all over the world, starting at the Harvard Law School and what Professor Lester Lawrence Lessig III calls the “super cool frecultur country of Sweden.”

Ah, but distinquishing the legal from the illegal would violate the “tradition” of “net neutrality,” you see. Bunk. There was also a “tradition” among hotel guests in the Old West who were confronted with a fellow guest who was snoring in the next room–opening fire through the wall until the snoring stopped. When civilization came, they learned to complain to the concierge.

It sure helps to have an ISP lead the way, which it appears is exactly what Comcast is doing. We noted in an earlier post that Comcast has started cutting off service to bandwidth hogs (generally in line with the policies in effect at Stanford Law School, although it’s not a precise measurement as Comcast is not obligated to, and hasn’t, posted exactly what you have to do in order to be expelled from the service—no doubt showing an abundance of caution for the hacker non-ethic and their handmaidens, the Mystic Knights of the EFFluviati).

Now we find an oped—sorry, a story—on the Associated Press that alleges that Comcast is going much farther. It is stopping the “unstoppable” Bit Torrent and Gnutella. The EFFluviati are all aflutter re same, and a Comcast user is quoted as sniffing out Comcast’s atrocious behavior (I wonder if this is the same guy?).

To wit from the AP oped—sorry, news story:

“Comcast’s interference affects all types of content, meaning that, for instance, an independent movie producer who wanted to distribute his work using BitTorrent and his Comcast connection could find that difficult or impossible — as would someone pirating music.”

And of course just like Fred von Lohman of the EFF (as well as other Lessig fellow travelers) found it untroubling that Grokster and Morpheus were used for 97% infringing purposes, the “correct” result would be that the rights of an “independent movie producer” who wanted to distribute his work on Bit Torrent (presumably under some version of the flawed “Creative Commons” license) trumps the massive infringing activity that goes on every minute over file-bartering services to the PROFIT of ISPs TRUMPS the rights of the entire creative community. How massive?

The metrics of theft can be derived from very AP story that is so indignant about Comcast shouldering its responsibilities a member of the commercial world trying to live under the law (not to mention an ISP)—a story that reaffirms what was clearly spelled out in “Why You Hate Net Neutrality”:

“Internet service providers have long complained about the vast amounts of traffic generated by a small number of subscribers who are avid users of file-sharing programs. Peer-to-peer applications account for between 50 percent and 90 percent of overall Internet traffic, according to a survey this year by ipoque GmbH, a German vendor of traffic-management equipment.

We have a responsibility to manage our network to ensure all our customers have the best broadband experience possible,” Douglas said. “This means we use the latest technologies to manage our network to provide a quality experience for all Comcast subscribers.”

And the EFFluviati chime in right on cue, inaptly comparing Comcast to ISPs in China run by the Chinese government and serviced by EFF’s alleged benefactor, Google:

“The results of our tests have agreed with AP’s [boy, that was quick]. Comcast is forging TCP RST packets which cause connections to drop (a technique also used by Internet censorship systems in China). These packets cause software at both ends to believe, mistakenly, that the software on the other side doesn’t want to continue communicating.”

And continue communicating to encourage the bartering of illegal files such as 97% of the users of Morpheus, the losing party in the Grokster case defended so brilliantly by that lion of innovation, Fred von Lohman of the EFF.

In a typical extension of its “Big Lie” techniques, the EFF offers up the following spray of EFFluvia:

Comcast keeps telling its users that the problems they’re seeing are not its fault. [True: If the users weren’t already engaged in highly illegal activities, they wouldn’t be having this problem. Comcast has a right to keep its systems free from criminal behavior. Just because Google doesn’t want to do the right thing, doesn’t mean Comcast has to follow the same compassless moral relativism. So if Comcast implements a system to make theft unfcomfortable, the intervening free will is not a choice of Comcast, is it?]

It’s time for Comcast to come clean about what it’s doing and take its users’ reports seriously. [You mean take the EFF seriously, right. Why on earth would anyone do that? Why help hackers, who John Perry Barlow refers to as the EFF's "electronic Hezbollah"? Comcast doesn’t owe criminals any assistance. And besides, how do we know that Comcast isn’t cooperating with the Department of Homeland Security to build a case against these infowarriors and their apologists?]

I don’t often quote myself, but his is worth remembering:

“So if you are an artist or someone who benefits from the creative community, understand that when the Lessig cabal [including the Consumer Electronics Association’s Digital Freedom Campaign as well as Lessig, Google and the EFF] try to get you to support “net neutrality” there’s nothing neutral about it all, and it is all of a piece in their campaign to crush our rights and our business. As [Lester Lawrence Lessig III, a/k/a] the Nutty Professor put it succinctly in one of his anti-copyright diatribes: “We’re bigger than them [so if you contribute to EFF we will win].” Meaning they’re bigger than us, so they should get to have their way. He said it, I didn’t.”

Senator Diane Feinstein summed it up very well at the 2004 post-Grokster hearing before the U.S. Senate Judiciary Committee after she roasted the Honorable Debra Wong Yang U.S. Attorney for the Central District of California and Chair of the Attorney General’s Advisory Committee on Cyber/Intellectual Property Subcommittee–who had done absolutely nothing to protect the entertainment industry online:

“I have watched for over a half decade since Jack Valenti [then president of the Motion Picture Association of America] urged us to do something. We asked him to negotiate and there were two attempts to strike a balance between protecting copyrights and fair use copying….Now we have a unanimous Supreme Court decision and peer-to-peer nets are increasing. That is a signal. Enact strong law to protect the copyright industry. If negotiations can’t produce results, it is up to Congress to act.”

Unfortunately, Senator Feinstein doesn’t seem to be able to get the attention of a sufficient number of her colleagues to make something positive happen in the Congress. But at least an ISP has the courage to take on the anti-copyright crowd in a way that makes a difference.
Bravo, Comcast. Keep up the great work, and Senator Feinstein please take note. It’s morning in the information war.

And they all moved away from me on the bench, or Google’s Bad Advice

October 19, 2007 6 comments

A group of leading entertainment and technology companies have announced the “UGC Principles” that they wish to follow as industrywide standards. Absent—of course—is Google.

There are many principles that the group of companies, including Microsoft, have agreed to follow. These companies—we might call them the Principled Group—adhere to one basic tenant, from which all others flow:

Implementation of state of the art filtering technology with the goal to eliminate infringing content on UGC services, including blocking infringing uploads before they are made available to the public.

This lets out Google’s senior management team, because they have taken really, really bad advice that Google’s senior management team must believe permits them to get away with a massive infringement machine such as YouTube. This extraordinarily flawed reasoning seems to be the sole rationale supporting the relentless desire of Google’s senior management team and general counsel to use the company’s dominant market power to rip off the entire creative community.

The Principled Group, on the other hand, have clearly enunciated workable policies that should be easy for any legitimate enterprise to adopt. The problem is that Google’s absence from the Principled Group is a very clear statement of the goals and desires of their senior management and general counsel—steal everything that’s not nailed down.

Dr. Strangelove redux: How I learned to stop worrying and love the shakedown

October 16, 2007 Comments off

“We really need the content community to work with us,” [the YouTube man] said. “We need them to help us help them.”

YouTube is launching its video filtering tool and apparently the use of this tool requires copyright owners to upload videos, their entire libraries in fact, to Google’s database. Note the possessive in that sentence–GOOGLE’s database. That GOOGLE, presumably, will own. GOOGLE wants copyright owners to GIVE them copies of their motion pictures, television programs, music videos.

So here’s Google’s apparent strategy: First, shake down the entire creative community with its YouTube infringement machine; fight lawsuits from the big copyright owners and blow off the little copyright owners; then as a solution to the problem they created, offer up a filtering tool that requires copyright owners to populate what appears to be a proprietary database of content a la CDDB.

Plus–in order to filer clips that are randomly selected by users the filtering tool would likely need a control group of complete works to compare the clip to in order to filter. So you see where this is going.

Here’s a tip: If you are doing business with Google and you haven’t found out how you’re getting screwed yet, it’s because you haven’t thought about it long enough.

(In order for identification technology to work, the application must find some video or audio file in an unidentified state and then have a control group of audio and video files to compare it to. The costly part of preparing these databases is the process of creating the control group which requires negotiating contracts with copyright owners–unless, of course, you just want to put a gun to their heads.)

Even if anyone was stupid enough to hand Google a major asset for “free”, it will also probably take a year or three and HUGE expense on the part of the copyright community to even get the database to the point its got enough content in it to make the filtering meaningful.
Nice–screw us, screw us again, and then screw us still one more time. Then take our stuff and sell it back to us.

NEVER underestimate the brass of these people.

If they ever teach ethics in computer science schools, Eric Schmidt will be case study number one in amoral behavior.

There already is a perfect filtering system out there. Works like a charm, never makes a mistake, and always gets people paid. It’s called iTunes.

It’s called get a license.

Generation L and the Promotional Value of YouTube

October 13, 2007 1 comment

Here’s a real-world example of the great “rise of the amateur” we hear so much about (debunked by Andrew Keen in the wonderful book The Cult of the Amateur). A musician downloaded free software and made a recording on his computer that according to one of those insane websites that thinks they can use computers to predict human emotion should have been a hit–put together a recording and a video that got over 250,000 hits on YouTube. (In fairness, the artist is a bit of a ringer as he is not an amateur, so let that color your view of how proficient he was at using the “garage band” recording gear that Terry Fisher tells us is competitive with the best recording studios leading to the triumph of the amateur. Of course if you’re a Fisher acolyte, being good at music–much less a professional–automatically disqualifies you.)

250,000 hits. There’s that great promotional value we hear so much about that’s supposed to justify us looking the other way while the YouTubes pocket a billion and a half of our money.

So before you read the article (linked above)–here’s a little multiple choice quiz for you.

After getting 250,000 hits on YouTube, how many downloads of the track did the artist sell off his website:

a. More than 1 million;
b. More than 500,000 but less than 1 million;
c. More than 250,000 but less than 500,000;
d. More than 50,000 but less than 250,000;
e. More than 10,000 but less than 50,000;
f. Less than 1,000 but more than 100; or
g. Less than 100.

Hint: Don’t put money on this.

Subscribe This Way

October 13, 2007 2 comments

The recent New York Times piece about Rick Rubin has stirred discussion of the wisdom of subscription services. Unfortunately, that’s not the really important part of the article—the most profound discussion was Rick Rubin’s approach to making records. That part of the article should be required reading for every A&R person and also every record company accountant.

The history of subscription services is somewhat checkered. The cynical view (that is not entirely implausible) is that subscription services were devised by a music industry that was trying to get consumers to do the digital equivalent of replacing their CD collections—monthly. Yet there is a certain appeal to having a wide variety of music available on a convenient device—Professor Goldstein’s “celestial jukebox”.

Let’s think about the value of subscription services. In any discussion of online music distribution it is important to realize that illegal p2p and Bit Torrent music distribution platforms are still churning out billions, and I do mean billions, of downloads a month. (For a little Sunday morning reading, try “The True Cost of Sound Recording Piracy to the U.S. Economy” by the Institute for Policy Innovation, an independent think tank).

So, there are essentially two different music audiences that are at opposite ends of a continuum of consumer behavior. At one end there is the music fan who only buys legit—they will buy music in a number of channels—at shows, online, and at a decreasing rate, in music stores. Then there is “Generation L”, the “can buy, won’t buy” crowd that would rather download for free than pay, even for artists they supposedly admire. Somewhere near the middle, there is a fan who buys a little from legitimate sources, but downloads the rest from illegal sources, and vice versa. (There are some very good focus group studies by Music Ally demonstrating these behaviors.)

When deciding what policies to implement and business models to support in developing online businesses, it is important to realize that the audience is fragmented in a new way. We are used to dealing with niche musical tastes, geography, online vs. offline, touring vs. music stores. We are used to reaching fans and introducing them to new music. This was often accomplished by making the music available for free or near free initially, and then increasing the price–if the artist finds an audience (a big if). Of course, there usually isn’t a need to cut prices for venue sales as the fan has already been introduced to the music through the best sales tool out there–live shows.

But until the Morpheus era there was always a belief as well as a commercial reality that once you had a fan excited about the music, that fan would buy a record. Thanks to an abundance of moral relativism and a complete and utter failure by government to enforce the law, there is yet another hurdle to get over—not only does a fan have to like the music they are introduced to, but in many cases fans have to like it enough to not steal it, particularly for Generation L members. This is true regardless of whether the ultimate purchase is in the form of a subscription or a permanent download and is a new burden on the already overburdened artist.

But how do most fans get their music? Whether they buy it or steal it, they typically download it for use on their iPod (statistically speaking), or to other mp3 players that let them listen to what they want, when they want.

It is this part of the equation that is the key factor in understanding why subscription services have failed. So–the overwhelming evidence is that consumers want to download (or rip) music for use on portable players that they can carry with them, plug into their car, plug into their sound system at home, listen to in airplanes, at the gym or yoga class, and so on. This is how many people people acquire and listen to music in the 21st Century.

The service that most closely approximates this behavior is the iTunes Music Store/iPod one-two commercial punch. iTunes is still the best online music experience out there and—not surprisingly–produces around 95% of digital revenue (excluding ringtones, ringbacks, etc.). The service that least approximates this behavior is Napster/Rhapsody/MusicNet. And the part of the Napster/Rhapsody/MusicNet service that is completely opposite to this behavior is the subscription part.

The answer is very simple—you can’t put streaming subscription tracks on an iPod. That may change over time, but you can’t do it now. I know there are “Fill in the blank” To Go products (including that XM player that the company unfortunately clings to), but it’s not an iPod, the overwhelming choice of music fans around the world.

Not only do these services ignore the billions and billions of instances of evidence of consumer behavior freely observable in the wild without need of some consultant who couldn’t write a song or make a record if their lives depended on it gibbering and jabbering about a business they know less than nothing about—subscription services do virtually nothing to compete with the downloading behavior that is rapidly destroying an important sector of the U.S., and eventually the global, economy while Washington, London and Brussels stand idly by.

Another problem with subscription services in the U.S. is clearing the publishing for on-demand streams. Until there is an easy to use agreement (compulsory or voluntary) that allows online services to make available a robust offering of tracks for streaming, it is unlikely that any services will be all that enticing.

What are the attributes, then, of a potentially successful subscription service? I would suggest that they are likely to include the following:

Easily accessible from anywhere. Even if you had a portable device that could store or receive streaming audio over the air, solving the reception problem is not trivial. You can start with airplanes and cross-border transmissions, so that if I subscribe in Croatia, I can still listen to my music service in Uruguay over the air, even if the service is not available in the country where I am traveling.

Resolution of Music Publishing Licensing. Until the publishing problem is solved (which the Recording Artist Coalition, the Songwriters Guild and the National Music Publishers Association tried to resolve in the last session of Congress), it is unlikely that the actual consumer offering is going to be all that appealing.

Reasonable Royalty Pricing for Recordings and Retailer Margins. The current licensing model for subscription is usually a variant on a “greater of” model that is mind-numbingly difficult and costly to administer. At the moment, the only way any retailer can make any money on a subscription service is due to “breakage”, or the gym membership model—people who pay but don’t use the service. So important is breakage to the economics of subscription, licensors often seek a share of breakage as part of the royalty deal, a sad state of affairs.

Simplified Sales and Royalty Accounting. I know of some indie labels who are pulling out of subscription services because it costs them more money to breakdown the reporting from the service in order to account to their artists than they make from the service. The current “greater than” formulas imposed on retailers are absurdly costly to calculate by everyone in the chain and highly likely to be inaccurate because they are so cumbersome. On the artist side of the equation, simplified sales accounting should–ahem–should–lead to more transparent royalty accounting to artists.

Reasonable Consumer Pricing and Value. It is an oversimplification, but it’s well to remember that fans demand value for money. This doesn’t necessarily mean that the current subscription pricing is the market clearing price for subscription services by a long shot–it’s fairly safe to say that current subscription services haven’t found an audience, despite the success of the iPod. At such time as a service can be offered to the fan in a more exciting delivery method, pricing may adjust upward or downward. If delivery is over the air, there will need to be some data connection charge built in that the copyright owners may or may not participate in, but must be taken into account when determining a monthly subscription price whether it’s mobile or satellite. My first day of business school I was taught–and still believe–never compete on price. I still believe that price competiation–as opposed to value competition–is a bad idea, even with free. If you give consumers a service that they value, some of them will pay for it. It’s the entrepreneur’s job to find a way to identify what’s valuable to consumers and think of even better ways to package it in an attractive manner.

Elimination of Free Riders. While it will be very unpopular with device makers, the Consumer Electronics Association and the “Digital Freedom” campaign, it does seem abundantly fair that there be some participation by the creative community in the wholesale pricing of devices that are designed to benefit from the sale or downloading of music. If that deal is made, it would also be nice to avoid internecine squabbles about how much each interested copyright party should get, by the way. Hopefully we can take some of the existing precedents as a guidepost.

I really wish it were more complicated than this, but I don’t think it is. Subscription services have failed because consumers prefer to get their music another way. A very, very large number of consumers would rather steal than buy—would rather steal than pay anything at all for music. So even if you were to lower the price of subscription to zero or below (meaning that you gave away the music plus something else), it’s likely that you would not be able to attract what I call “Generation L” (for Lessig. Generation L is more a state of mind than an actual age group.)

That is the problem. The destructive powers at work on the market place for music are largely unparalleled in the global economy—our business has one foot in the rapidly shrinking offline legitimate market, and one foot in an online wild west where all the marshalls are having coffee and donuts. Online, there are essentially no property laws, even in the United States. I agree with Senator Diane Feinstein (D-Calif) that the organized music industry (including Apple) frequently seem to be the only ones playing by the rules in the slithery–and so far anonymous–darkness of the Internet. (For an argument for the benefits (or some would say the absolute requirement) of the rule of law to a disordered market, try the Mystery of Capital by Hernando De Soto.)

The illegal services, lionized and defended by the Electronic Frontier Foundation, the Consumer Electronics Association’s “Digital Freedom” campaign, and Stanford Law School professor Lester Lawrence Lessig III in his many books, blogs and speeches, not to mention lawsuits, are largely the competition for all legal music sales whether online or offline. Have a drink at Mirabelle on Sunset Boulevard in Los Angeles sometime and look out the window at the parking lot where Tower Records used to be and you’ll get the idea.

Sumner Redstone recently disclosed in a speech to the graduating class at the Boston University law school that he “…exhorted [his] peers in the media hardware and software industries to exercise their responsibility to wipe out piracy by not selling tools that enable copyright infringement or sanctioning the unauthorized use of licensed content.” (I made a similar argument for the imposition of serial copy protections on computers in 1994. Oh, well.)

One would think that this would be part of the price of admission for legitimate companies—particularly publicly traded companies like Google—to have access to the public markets for financing and to operate in a free market. Until the supporters of the “Digital Freedom” campaign accept responsibility for the entirely foreseeable consequences of their actions, it is exponentially more difficult to develop a legitimate online market for the creative community, be it music, films, television, books or visual arts.

The entry of Google and its billions into this situation is making it significantly worse by the minute. Rather than using its vast resources for good and trying to stabilize the market, Google does the opposite—it uses its bottomless wealth, largely derived from the public market for its stock as well as its dominance in the global advertising market, to give our business what may be the final kick with YouTube, Google Print and god only knows what else we haven’t heard about yet. It sounds like the only way Google can compete with Apple is to cook up flimsy legal theories that allow YouTube to take what Apple pays for–particularly for the independent artists who are largely ignored when they complain about their rights.

Lawsuits alone are not going to solve the problem, whether brought by industry groups or Prince. But if we cannot rely on the government to protect us from rampant thievery, which even the most hard core free market libertarian would agree is the basic task of government, the lawsuits must continue if for no other reason than maintaining a belief in the legal system that copyright law should not be jettisoned before the onslaught of the mob.

So if subscription services do not address the current consumer behavior, there is no reason to believe that subscription services will get anyone to substitute away from iTunes, much less illegal downloading. And if there is no sustained effort by governments around the world to severely reduce illegal downloading, then online retailers will continue to have to try to play by the rules in an environment where users are not, and many tech companies directly profit from wrongdoing.

We all admire Rick Rubin as a creator, I’m sure, and I can’t say enough good about his views on the creative process. If we all took his lead, we’d have a much smaller and much less hit driven and frantic industry that would very likely produce the great artists we all crave. While I can agree with him about subscription services in an idealized sense, I can’t see the design and implementation problems with subscription being overcome anytime soon as a practical matter.


October 13, 2007 Comments off

I’m actually quite amazed by the number of people who come up to me around the country and encourage me to keep writing this blog. Most often these are independent artists, owners of small labels, independent publishers, managers and attorneys who work with new artists, the people who have always kept the music business alive.

These are the folks who I worry about the most in this time of extraordinary turmoil. Big corporations can limp along with 10-20% revenue drops, but independents have a really hard time enduring under these circumstances. The new music, what’s happening on the street, hardly ever comes from the majors. If you lose the independents, the industry is really in trouble.

Let’s just say it–these are the darkest days any of us have ever experienced in our music careers. All we can do is look after our own records, do the best job we can, and just hold on for dear life hoping for a positive result. Too often you do all that, only to have some members of the public steal the fruits of your labor. And that’s really depressing.

So if I can provide some humor or hope in this situation, it’s the least I can do in return for all the joy that music and my friends in the music business old and new have given me in my lifetime.

Television Sublicensing of Masters and Songs and YouTube

October 10, 2007 Comments off

If you are in the group of copyright owners who have not licensed YouTube (and your numbers are legion), think about this when a YouTube licensor (such as CBS Television or CNN) wants a license from you.

YouTube has yet to come up with the way that they are going to account to copyright owners. This has been going on for nearly a year. I may be in the minority on this, but when someone has stalled me on money for a year, I call that getting stiffed. Or something.

And make no mistake–it’s not like there’s some sign that Google intends to negotiate how they account to copyright owners. They’re going to decide and they’re going to tell you. And that, my friends, will be that. I’m about as certain that Google’s plans do not include any serious attempt to filter copyrights before the works are posted using YouTube’s applications as I am that Google will not feel the need to negotiate with small copyright owners. And I’m about as certain that Google will not feel the need to negotiate with small copyright owners as I am that the Department of Justice will never be bothered to charge YouTube, its founders, its board members and its venture capitalists with criminal copyright infringement. And that’s pretty certain.

You may believe the Big Lie–that is, you may not believe as I do that YouTube has absolutely no intention of paying copyright owners a nickel in royalties absent a final, nonappealable judgement. But–even if you believe the Big Lie, surely you must agree that YouTube and Google are not falling over themselves to get it done. This may be because they have paid big advances to those who succumbed to the notice and shakedown, and will just pay another big advance if the natives get restless. Whatever has happened, they have gotten believers to focus on the bright and shiny object somewhat successfully. They’ve just missed a few steps on the belivers thing, like the Sumner Redstone step for example.

But if you’re not someone who has licensed YouTube, you didn’t get that big advance. If you now license someone who has licensed YouTube, what result?

Suddenly, your works are in that never ending notice and shakedown process–if you granted a license on the industry standard terms–terms that evolved before the YouTube catastrophe arose. You may not have standing to send the notice because you have granted a license to a YouTube licensor. This would almost be like licensing Grey’s Anatomy, but saying that they couldn’t broadcast over DirectTV. It’s different–at the moment–because YouTube only uses clips and is not a true IPTV rebroadcaster.

You know that form you have with YouTube licensors, the one you negotiated long ago and have forgotten about? (Or if not current YouTube licensors, potential licensors.) It is time to take a look at that form license again. The license may well be silent on certain key points:

1. No clips. Make sure you are not allowing your licensee to create or authorize the creation of clips using your works.

2. Distinguish Trailers. Make sure that you close off any arguments that could be made that somehow YouTube clips are trailers.

3. No User Generated Content. An express prohibition on using your works in any “mashups” or “user generated content” is also adviseable.

4. Require Licensing by PROs. If you are a songwriter or publisher, require the licensee to only broadcast or authorize for rebroadcast on entities that are currently licensed–and are paying–performance rights royalties and any other royalties required for the public performance, making available, or other comparable uses of the works under the laws of any jurisdiction.

5. Separate Option: If you are not opposed to these uses, permit some or all of the uses subject to a separate option payment (comparable to a home video buyout).

Don’t stumble into a license that cuts off what’s left of your ability to protect your copyrights.


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