Updated: A New Twist on Artist Consent Provisions: Protect Your Right to Say No to @mcdonalds ads on pirate sites
A recent blog post on The Trichordist has sparked some debate about how much artists can control advertising on pirate sites that rip off their work. This post will consider contract rights that artists have and how these rights to approve advertising can achieve that end. A particularly important topic raised by Ari Emanuel at the recent D10 conference.
It has long been accepted practice in talent agreements to give artists consent rights over how their recordings are used in commercials, certainly during the term of the artist agreement and after the term if the artist is recouped. Even if the artist is unrecouped, there are some categories of advertising that are verboten and that list has grown over the years–certain drug products, so-called “feminine” products, political advertising, tobacco advertising, alcohol, and a few others. A comparable provision relates to motion picture, television and videogame licenses based on the rating of the movie, show or game.
These clauses are contractual reactions to artists who do not want to be associated with certain products or the creations of others who invoke certain behaviors that the artist finds offensive and at odds with their brand. Another way to look at these provisions is that they sound like “moral rights” (especially the right of “integrity”) but are expressed in a private contract right as opposed to a public law proscription.
While particular provisions may vary, these contract rights represent years of table pounding by artist representatives who came before, and are now pretty standard gives, so standard that they are often in the first draft of a recording agreement.
What is now becoming alarmingly common (as we noted here on MTP recently), unlicensed song lyric sites rip off a song’s lyrics (violating the songwriter’s copyright interest and undermining the value of the “lyric reprint rights” and sheet music rights of the songwriter). These illegal sites wrap song lyrics in equally illegal photographs of the artist and often have links to videos that the artist may have voluntarily placed on YouTube. (It seems that YouTube is the only video site these people link to.)
So far, this may sound like an unauthorized fan site, right? Except that in every case we have looked into, Google has reportedly indexed over 500,000 pages at each of these sites and the sites boast of hundreds of thousands of lyrics in a searchable index. Does this look like a fan site?
Another way sites like Lyrics007 differ from most fan sites is that they sell advertising–lots of advertising.
According to Webdetail.org, “Lyrics007.com has an estimated value of $ 999,354 USD and receives about 432,594 pageviews per day. The site has Google Pagerank of 5 and ranked # 2,433 in the World based on Alexa traffic ranking. This domain is currently hosted by SoftLayer Technologies with IP address of 126.96.36.199 on the server that is located in United States. With nameservers: dns7.hichina.com dns8.hichina.com. And has Adsense Publisher ID: pub-0919305250342516.”
In order for the site to publish advertising, the site must have a deal with an adserving company. In the cases we have seen so far, the adserving companies publishing advertising on these pirate sites ultimately resolve back to a Google address through AdChoices (which Google joined reluctantly it seems) and Doubleclick, owned by Google. (Ad Choices is an industry group that some think was put together to avoid regulation but which actually does a pretty good job of masking where a particular ad is coming from at least on a quick review.) AdChoices is an icon and brand that’s associated with a process rather than a particular adserving company, several companies use it. However, if you hover over the “AdChoices” icon, you can see a link–that link is pretty convincing evidence of who is serving the ad. Try hovering over AdChoices ads on Lyrics007–all the ones I tried it with resolve back to Google or Doubleclick (owned by Google). Try the same thing on Yahoo! or MSN.com (two other users of AdChoices) and you will see the link resolves to a Yahoo address or to a MSN or Microsoft address. So–and stay with me here–even if you see an AdChoices logo you can still make a very educated guess as to who is actually serving the ad to the pirate site–and making the money, of course. In this case, if Webdetails is right, it’s actually easier because we already know the site’s Adsense publisher ID (which is how Google knows who to pay their share of ill gotten gains…I mean advertising revenue).
And then of course you can look at the source code on the page which also tells you the AdSense publisher ID:
So Google indexes the pages, includes the pages in search, then drives traffic from search to these illegal sites where they sell advertising based on CPMs derived from traffic that Google drives to the site.
The advertising published on these sites is not low end or shady products–Google advertises its own Google Play music service as well as brands like McDonalds, Levi’s, Macy’s and Google’s own Chrome web browser. When the fan sees advertising of quality products like these on a website, it adds to the “legitimacy” of the site because the fan–rightly–says to themselves that it must be OK or McDonalds wouldn’t be advertising there.
So how does this phenomenon relate to artist consent over advertising? As you can see from the screen captures on these lyric sites (and the same is true for many other pirate sites), advertisers are connecting their brands to the artist’s name and the title of the song the artist recorded and probably wrote or co-wrote. This is not very different from using the artist’s name in the actual advertisement itself or an “implied endorsement” of the product. While there’s not much the artist can do to actually stop Fortune 500 companies from profiting from piracy (directly in the case of the adserving company), the artist can refuse to do business with the offending company and point out to whoever will listen how the company’s shortcomings let to the juncture.
In an even more complex example, one blog found that Brandi Carlisle’s new album was being advertised on a pirate lyric site. I don’t believe for a second that Brandi Carlisle or her label had any idea that the ad would show up on the pirate site. They probably have a deal with Google to advertise the record, and Google decided to serve the ad to publishers in their network and could care less whether the ad shows up next to lyrics from a song by another artist that were ripped off.
It would not be a very big leap for artists to include in their recording agreements and touring agreements a provision that prohibits the record company or tour promoter from advertising the artist or a tour with the artist on websites that promote illegal activities. (See the screen capture below with an ad for the Warped Tour.) A further step more appropriate to the touring context would be to prohibit the tour from taking sponsorships from companies like McDonalds, Verizon and Levis that advertise on pirate websites, knowingly or unknowingly.
Will all artists have the leverage to negotiate these provisions? No, they won’t. But 50 years ago only a very small handful of artists had the power to control their music being used in commercials–now practically all do.
When artists stick together, eventually they get justice.
PS For an important and eye opening discussion of the rights of advertisers to control how their brands are used by companies like Google, see Harvard Business School Professor Ben Edelman’s excellent piece “Toward a Bill of Rights for Online Advertisers“
If you want to call McDonalds you can reach them at:
McDonalds Global Communications
Office: (630) 623-3678 Facsimile: (630) 623-8843
Heidi Barker Vice President firstname.lastname@example.org
I did an interview this week with Amy Vallancourt-Sal of Classical Revolution PDX (Portland, OR) about the current state of classical music and also about Amy’s post regarding Amanda Palmer’s employment relationship with some of her musicians. That story was moving faster than either of us thought–the day I posted the interview, Amanda Palmer “found the money” to pay the local players that she wasn’t intending to pay. Amy had already written a supportive post congratulating Palmer and posted it, so be sure you read “Hooray Amanda” so the interview is in context.
Maybe it’s my sideman bias, but my takeaway from the entire tableau as well as what I learned from Amy about Classical Revolution has very little to do with Amanda Palmer.
1. The Artists Got it Sorted: The individual artists and musicians were able to express their ideas to each other and didn’t need any intermediaries. This is really important (at least to me). The artists are perfectly capable of expressing themselves to each other, and didn’t need a manager or lawyer to do it for them. From Amy, to Jason Colletti, to David Lowery and back to Amanda this all worked out very well.
2. The Unions Still Matter to the New Boss: Having said that, it’s also important to recognize the role of the unions in this. Remember–when you set yourself up as the star, you are also an employer. There are rules that apply to all employers, and just because you once were a street performer, doesn’t mean the rules don’t apply to you.
I have no idea whether any of this would have happened, but after looking at some of the shows Palmer was playing, I think I recognized some union halls on the list. Meaning that particularly in states like California and New York, the halls where Palmer was playing were under the jurisdiction of the stagehands union. If the American Federation of Musicians organized a picket line, such as an informational picket line, I seriously doubt that the stagehands would have crossed it. And good luck humping trap cases up the stairs at the Fillmore without the stagehands.
This is what unions are there for–to help with the clout of solidarity when a sister or brother is treated unfairly by an employer.
3. It Helps to Have Been Signed before 2004: I wrote an article in 1999 titled ”Why Free Agency Matters: The Coming Changes in Record Company Artist Relations” (remarkably prescient if I say so myself and I do) in which I argued that artists who have been signed to a major label and who “go indie” after becoming successful on a major (the “free agent” reference) are able to capture much of that record company investment in making them famous. That’s more important than ever when entering the Billboard top 200 album chart at #10 now takes about 10% of the sales it used to in 1999 (depending on the competition that week). So there are likely many factors at work with Palmer’s famous $1.2 million.
4. Steve Albini: Well…he’s Steve Albini. Maybe a cruise on the Love Boat with Lefsetz would do them both some good.
5. What if It’s Just About the Music: Killick is one of my favorite artists. Killick hasn’t raised $1.2 million on Kickstarter, and frankly I don’t think that’s a very likely outcome. To state the obvious–the most popular is not the best. It’s like guns and butter, there’s a continuum between Tweeting every breath you take and practicing for hours under a bare lightbulb (which was how Nelson Symonds spent his days according to the legend). I still remember seeing Nelson at Rockheads, but I couldn’t tell you a single Tweet by any artist, really.
Eric Harvey summed it up well:
It’s easy to position Palmer as the living embodiment of a successful 21st-century DIY musician, and many have. But such a designation leaves out the most important details. Amanda Palmer is a successful 21st-century musician/public figure/entrepreneur, each title feeding equally into her self-created brand. She has effectively translated the ideas that drove her as a street performer and cabaret act (no distinctions between audience and performer), and her more traditional, label-supported early-2000s work, into a new paradigm, much like Kickstarter has put the idea of community funded DIY projects on steroids. This makes Palmer an interesting subject for discussions of music and technology, but far from a workable model for up-and-coming artists. Appropriately, she ended her “trolls” blog post with a request that would seem self-evident for most musicians: “Do me a favor… keep talking about the music.” If the music were the most noteworthy thing about Palmer’s career to this point, that plea would be self-evident.
6. Classical Music Merits Your Support: The most important thing I learned from Amy in my interview is that it’s well to be reminded how much work it takes to be able to call yourself a classical musician. To paraphrase a great daughter of Texas, classical musicians do everything Amanda Palmer does but backwards and in high heels. While reading.
I highly recommend going to hear a full symphony orchestra if you never have, or do it soon to remind yourself of what it sounds like if you go infrequently. It will give you a whole new perspective on amplification for starters, and musicianship for afters.
Digital Music News has an interesting story about the op-ed by Ray Hair, president of the American Federation of Musicians, calling out Tim Westergren’s latest lobbying trip to Washington (this week). For the benefit of the Valley Boys, the AFM is a union, you remember those? Those are the things you don’t have in Silicon Valley. Unions do this thing called collective bargaining–and no, that’s not VCs setting a valuation.
Here’s the money quote (so to speak) from Tim:
“The current system for establishing royalty rates is astonishingly unfair. Fairness demands that all music related rate settings utilize the same 801(b) standard.”
Ah, I see. “Fairness demands”. Love how they switch into the passive voice when they don’t want you to know who is actually doing the demanding. Could it be….Wall Street?
So what Tim is really saying is that “fairness demands” that Pandora make more money. And the quickest way to do that is to cut its royalty obligations. Of course–Pandora could come up with an innovative business model and actually make more money.
And maybe that is exactly the rub. If you take Sirius XM as an example, Mel Karmazin’s recent interview with Jim Kramer on Mad Money tells the tale. In its darkest hours a few years ago, Sirius came to the artists and asked for a rate reduction–a 50% rate reduction which they got.
Now–just a few years later–Karmazin expects to be sitting on over $1 billion in cash by the end of this year.
MEL KARMAZIN: Free cash flow is what enables you to buy back your stock, make acquisitions, pay down debt. And I believe free cash flow is an important metric. Our free cash flow now, is growing– it’s extraordinary. Before the merger we had negative free cash flow of $500 million. Negative free cash flow. This year we will have $700 million of free cash flow. We haven’t given guidance for next year. Analysts have us at a billion of free cash flow and continuing to grow. So it’s a great start.
Kramer asked him what he would do with it. And of course, the top of the list was a bonus payment to the artists who cooperated with Sirius to help it through the bad times.
Acquisitions, paying down debt, stock buy back, dividends. All those were mentioned.
Nothing for the artists.
So while Pandora may not be “profitable” now, I’m sure that was no more a concern for Pandora’s IPO underwriters than it has ever been for any other Internet company, including Facebook and Zynga. The point is that Mr. Pandora is going to K Street now because these are 5 year deals on rates and the current one expires in 2015.
And Pandora anticipates being profitable sometime between now and 2020.
So they will–of course–be standing in line right behind Mel Karmazin to bonus the artists who invested in their company in the bad times, right?
Fairness demands no less.
When the European Commission’s Competition Commissioner Joaquín Almunia first started settlement discussions with Google regarding its dominant position and bad behavior toward competitors in Europe, he expressed a preference for a settlement over a “Statement of Objections” (essentially a finding by the Commission that Google likely violated the European antitrust law and ought to change its business).
“I believe that these fast-moving markets would particularly benefit from a quick resolution of the competition issues identified.”
That was May 21, almost four months ago to the day. While one can sympathize with Mr. Almunia in that the issues are complex and the defendant well-heeled and uncooperative, if you have had any experience with Google you know that their favorite game is obfuscation, delay with almost unbelievably legalistic and litigation oriented methods. While the markets may be fast moving, Google descends on those markets like a slow moving hurricane, using its tremendous financial strength to exploit every leak in the roof. Until the roof caves in.
Case in point: Google Books. When the case was filed in 2005, did anyone seriously think at that time that seven years later Google would have scanned over 10 million books (no one but Google knows the actual number). That seven years later Google would challenge the authors’ and photographers’ right to be represented by their union–an issue that Google had not challenged for seven years of litigation? A “quick resolution”?
Case in point: YouTube. When Google acquired the company in 2006, did anyone think that they would use their monopoly profits from search to subsidize the company for six years and on to the forseeable future? Did anyone think they would adopt the “notice and shakedown” business model? And get away with it? And the Viacom case and related class action still grinds on. A “quick resolution”?
I could go on.
I’m encouraged by Mr. Almunia’s statement quoted by Bloomberg that settling the antitrust case was an option he would not keep on the table “forever”:
“‘To explore the possibilities of an [antitrust] settlement is not open forever,’ Almunia said. He added: ‘I have no deadline.’”
I feel confident that Mr. Almunia is probably too good a poker player to actually say publicly what his deadline is, so I seriously doubt that he has not defined in his own mind the limits of what good public policy demands, not to mention his own patience.
I’m sure he knows what anyone who has dealt with Google has learned, usually the hard way. That line that we won’t cross is way, way, way in their rear view mirror. They are not having a serious negotiation with Mr. Almunia. They’re just trying to extend the day that they bring in their litigators or they somehow maneuver Mr. Almunia out of his job in exchange for a more compliant official. They have no intention of settling anything. There is no intention of a “quick resolution”–that is already four months in process and producing no fruitful progress.
But I am encouraged that Mr. Almunia is standing up to the Leviathan of Mountain View. Someone has to. Not that he’s looking for free advice from me, but I’d suggest to him that he may as well file his Statement of Objections. Google has managed to play the okie doke with him for four months–each month that passes is torture for the entrepreneurs who Google is bullying, and each month is just more cash in Google’s pockets to fund the inevitable litigation.
While hope springs eternal, eternity is too long to wait.
Originally posted on paidContent:
In a recent column, “Internet pirates will always win,” New York Times writer Nick Bilton suggested that stopping online piracy is futile because the pirates’ techniques evolve faster than efforts to stop them. This view is an article of faith for many in the tech community but that doesn’t mean it’s true.
Michael Smith, an economist from Carnegie Mellon, is one person who doesn’t buy the “pirates always win” meme. At a legal seminar in New York last week, Smith pointed to empirical data that paints a more nuanced picture of the piracy situation. He also called out “three myths” he says are clouding the debate:
Myth #1: You can’t compete with free
WASHINGTON, DC - Rep. Carolyn Maloney (D-NY) spoke today about a destructive illegal escort service app. Google listened, and then did the right thing, removing the app from the Google-hosted Android marketplace.
Earlier today, Congresswoman Maloney was notified about an app marketed under the name “Utoopi”, designed to be used for locating escorts using mobile phones and tablets that operate the Android operating system. The app offered to connect users with escorts and, according to its own description, “all the sex you want” in four cities, including New York.
Immediately after learning of this disturbing app, Representative Maloney fired off a letter to Google (attached) saying in part:
“…It is appalling beyond belief that someone would try to market an ‘app’ like Utoopi, which is about illegal escort services plain and simple. I urge you to ban the promotion of sex services and immediately remove Utoopi from the Android ‘app’ marketplace hosted by Google.”
Google listened, and today took down the app from the “play.google.com” marketplace.
In April, Reps. Maloney and Marsha Blackburn (R-TN) requested – and received – clarification of Google’s policies relating to escort service ads on the Google service. In response, Google reaffirmed its policies against advertising such services. Find out more at http://maloney.house.gov/press-release/reps-blackburn-and-maloney-join-efforts-address-online-promotion-human-trafficking.
We have to be happy that Breeanne Howe (Redstate) and Jane Hamsher (Firedoglake) focused attention on yet another way that Google profits from human misery–specifically the Utoopi app. Rep. Maloney took quick and decisive action, and sent the letter described above to Larry Page describing her expectations in no uncertain terms. After some wriggling, Google took down the offending app.
This is a good thing, certainly, and we’re glad that it happened. But those of us who have dealt with Google before recognize what just happened.
Google (a) only reacted when they pretty much had no other choice, and (b) did the least they had to do to stop the sunlight. This is what we call the “DMCA Okie Doke.” Meaning, they preserved the essential element of Internet Freedom–getting away with it. They didn’t fix the real problem which is an unmonitored Android Market. (If you use your imagination just a tiny bit, you can find plenty of other questionable apps in the Android Market.)
Case in point? Grooveshark.
On April 6, 2012 the House Judiciary Committee’s Subcommittee on Intellectual Property, Competition and the Internet held a hearing about piracy. Google Senior Vice President and General Counsel Kent Walker raised his right hand and told the American people that ”We must work together to target the ‘worst-of-the-worst’ rogue foreign websites without unintentionally impeding legitimate interests of those innovating and using online services to drive economic growth and global freedom.” Evidence of Google’s intentions?
Google removed the Grooveshark app from the Android Market. (Grooveshark is the shadowy company that is generally regarded as a “worst of the worst” distributor of pirate content.) When did Google remove the Grooveshark app?
April 6, 2012. That is–the morning of the day that Walker was testifying to the American people. Did he tell the Congress that Google had taken down the app only on the day of the hearing? Not really. If you weren’t following along in the news, you wouldn’t know of the suspicious timing and you also wouldn’t know that Apple had removed Grooveshark from the Apple App Store a year before. But Kent Walker could raise his right hand to God to tell what passes for the truth at Google. (For another example, see Eric Schmidt’s testimony to the Senate regarding the Google nonindictment agreement on violations of the Controlled Substances Act. See also ”LYING: Cadets violate the Honor Code by lying if they deliberately deceive another by stating an untruth or by any direct form of communication to include the telling of a partial truth and the vague or ambiguous use of information or language with the intent to deceive or mislead.”)
So just like Google’s reaction when Congresswoman Maloney called them out on the Utoopi app, Google removed Grooveshark when they were backed into a corner–and a pattern is developing. Only when Google was backed into a corner did Google do something that they could pawn off as the right thing.
But not to be stopped, Techcrunch tells us that ”[On April 18--less than two weeks after Walker's testimony], Grooveshark makes its triumphant return to Android, albeit not through the official App Market. Playing on Android’s ability to install third-party applications through the browser, Grooveshark has taken on the responsibility of distributing the application themselves.”
Presumably, Utoopi can do the same.
The Grooveshark take down is relevant because Google put the app right back up in August when they thought no one was looking according to PC World:
The music streaming application Grooveshark is available again for Android devices…after [Kent Walker told the Congress] it was removed by Google from its application market.
Grooveshark, which is run by Escape Media Group based in Gainsville, Florida, has had a rocky time with mobile application stores. Apple pulled Grooveshark from its App Store in August 2010 just days after it launched due to copyright-related complaints.
The company issued a statement saying that it had worked with Google in order to be reinstated.
Google did remove the Grooveshark app again around the end of August after enough people complained. It should not be lost on anyone that this occurred just as Google is in a process of renegotiating many of its music deals, especially for YouTube. So while Google can threaten to complain to Congress about certain deals if they don’t get their way, that only works with certain people. Grooveshark is an equal opportunity thief.
But Google’s reaction to Congresswoman Maloney is reminiscent of what Google does with DMCA takedown notices–they surely must know the work is being infringed, but they will only move if it suits them or if they are ordered to do so and will allow it to go right back up once the danger has passed. What we call the Google Okie Doke. And Congresswoman Maloney should not be at all surprised if they run the Okie Doke on her with Utoopi.
It’s nothing personal, it’s just business.
Oh sorry–no, it’s nothing personal, it’s just Internet Freedom. And this is what monopoly looks like.
But we have to be glad that dumping the Utoopi app may save a mom from having to pick up their child after school–at the morgue.
Attention MSM: This is what journalism looks like.
Redstate’s Breeanne Howe went after Google yesterday and blasted the company for distributing the Utoopi app. Today, Google got triangulated when Firedoglake’s Jane Hamsher covered the Utoopi story. Hamsher brought the story to the attention of Representative Carolyn Maloney who earlier this year co-signed with Representative Marsha Blackburn a letter to Larry Page asking for an explanation of Google’s profit from human trafficking. Rep. Maloney sent another letter to Page today:
September 18, 2012
Mr. Larry Page
Chief Executive Officer
1600 Amphitheatre Parkway
Mountain View, CA 94043
Dear Mr. Page,
I have long admired Goggle and I am even more impressed by the statement on your investor relations page, that your motto is “also about doing the right thing…following the law, acting honorably and treating each other with respect.”
Your response to a recent letter to you from Congresswoman Marsha Blackburn and myself about sex trafficking ads on Google certainly sounded like it was in keeping with that motto. Your spokesperson said that Google bans ads for sex trafficking, child pornography and prostitution and further that “it’s a constant battle against these bad actors so we are always looking at ways to improve our systems and practices — including by working with leading anti-trafficking organizations.”
It is with that in mind that I wish to draw your attention to a matter of profound concern to me as the Congressional Representative of New York’s 14th district. It involves Google and an application designed to be used in furtherance of illegal escort services. The app, marketed under the name Utoopi, is used for the purposes of advertising, soliciting and recruiting sex workers and is designed to operate on phones and pads that use your Android operating system.
The app promotes sex trafficking in four cities, one of them my own. The web site for Utoopi services in New York City features a picture of a street corner that is in my district.It is appalling beyond belief that someone would try to market an ‘app’ like Utoopi, which is about illegal escort services plain and simple. I urge you to ban the promotion of sex services and immediately remove Utoopi from the Android ‘app’ marketplace hosted by Google.
I look forward to hearing about your prompt action in this matter.
Member of Congress
This afternoon–Firedoglake reports that Google pulled the app from Android Market.
Thanks to Redstate and Firedoglake for doggedly pursuing the issue and bringing home to Google just how out of touch they are. More on this later, there are many questions yet to be answered.
Breeanne Howe writing in Redstate (“Google Profits From Sex Trafficking“) reported on the story and added some highly relevant additional facts:
In response [to a formal letter from Reps. Marsha Blackburn and Carolyn Maloney about Google-supported sex trafficking ads], Google pointed to it’s ban that explicitly prohibits “the promotion of escort services, prostitution, or other adult sexual services.” A spokeswoman also stated:
We have invested millions of dollars in monitoring and enforcing this ban — using the latest technology as well as manual review by teams who are specially trained to get bad ads, and bad advertisers, off Google,” the spokeswoman said. “We also work closely with law enforcement and other government authorities. But it’s a constant battle against these bad actors so we are always looking at ways to improve our systems and practices — including by working with leading anti-trafficking organizations.”
However, Google’s actions do not come close to matching their words.
Notice–like every public statement by Google, you have to read it very carefully. They conduct ”manual review by teams who are specially trained to get bad ads, and bad advertisers, off Google.” Utoopi isn’t “on” Google. It’s on 50,000 or so Android phones by the look of it. (“No registration needed!” I bet.) And of course, what would be interesting to know is if Google serves in-app mobile advertising to Utoopi and which ads they serve if they do.
Ms. Howe continues with another highly relevant fact:
Despite having almost 50% of the smartphone market and over 15 billion app downloads, Google has no app approval process. Based on their political contributions, it would appear Google spends more time and money on achieving power with politicians than they do helping to fight sex-trafficking.
By comparison, when you search for Utoopi in the Apple App Store, it’s not there. Apple also has a rigorous app approval process, to the point that when you search for Utoopi in the App Store, you get a question from Siri:
Did you mean “stoopid”?
And then, of course, there’s the “Android Booty Call Hookup.” The problem is much bigger than just Utoopi, it’s the same problem that allowed Grooveshark to get posted in Android Market–twice.
It’s the same reason Google points to a massive amount of infringing content that earns them a million DMCA notices a week that they have acknowledged are 97% accurate. It’s the same reason they paid a $500 million fine to get out of a drug indictment, the same reason their board is fighting to keep from being deposed by Google stockholders.
The problem is that nothing says “Internet Freedom” like getting away with it. But the smartest guys in the room sure look dumb when they’re caught, whether they’re caught selling illegal drugs ads, hardwiring their products in search, snooping in your WiFi or taking pictures of your house. Or when these mack daddies help out pimps and traffickers with a handy Android app to join the sex club while obfuscating with Members of Congress.
Siri nailed the t-shirt for Google’s board: “I’m With Stoopid”
PS Maybe Google could conduct the same kind of manual review of advertising they sell on sites with illegal intellectual property? Now that we know they can do it, how about doing more of it? It’s got to be cheaper than handling over 50 million DMCA notices a year. And that’s what their advertisers all say they are entitled to, so even if Google doesn’t think that underage girls should be protected, they might protect their advertiser clients.
I’ve been reading some of the coverage on Amanda Palmer’s efforts to tour. (Frankly, I have never listened to her music which could be great. Update: I watched her latest video which was really cool visually.) What’s funny about all this to me is that no one has said that what’s happening is a symptom of what we sidemen call LSD. (Lead Singer Disease–work for me for free because it’s good for you. The telltale “my band” instead of “the band” or “our band.”) Maybe it’s just me.
But there was something familiar to me about the words she used to describe her plan.
Some of you will remember the “study” by Felix “BYOB” Oberholzer-Gee and Koleman ”Jaegermeister” Strumpf that attempted to “prove” that piracy is good for you because:
“A…decline in industry profitability might not hurt artistic production [or] artist motivations. The remuneration of artistic talent differs from other types of labor….[Artists]might continue being creative even when the monetary incentives to do so become weaker [because] many of them enjoy fame, admiration, social status, and free beer in bars – suggesting a reduction in monetary incentives might possibly have a reduced impact on the quantity and quality of artistic production.” (My emphasis.)
BYOB and the Jaegermeister’s study has been favored by anti-copyright organizers–note that it was cited favorably by the UK Open Rights Group in their efforts to implement the Hargreaves Review in the UK (aka the “Google Review”). We’ll come back to them presently. (For a critical view see ”The Oberholzer-Gee and Strumpf File Sharing Instrument Fails the Laugh Test” by Professor Stan Liebowitz and “Assessing the Academic Literature Regarding the Impact of Media Piracy on Sales” by Professors Smith and Telang.)
Now according to Andrew Orlowski in The Register:
Amanda Palmer, the artist who raised $1.2m from her fans on Kickstarter [amost $50 a head to the penny] to fund a new record and tour, is now asking classical musicians to work for her for free.
The money has been on lavished on studio time, a luxury booklet, and an abundance of expensive promotional material. But there’s nothing left for the classical musicians she wants. The cabaret singer, who is married to writer and Open Rights Group patron Neil Gaiman [and Sandman creator], put out a request for “professional-ish horns and strings” – local volunteers for each tour date – who would be required to rehearse before performing, before joining Palmer’s ‘Grand Theft Orchestra’ for the performance.The reward?
“We will feed you beer, hug/high-five you up and down (pick your poison), give you merch and thank you mightily for adding to the big noise we are planning to make,” promised Palmer, who explained that the $35,000 required to pay seven or eight musicians for 36 tour dates at union rates was too much.
It’s hard to pay the rent in beer, and classically trained musicians are less than impressed.
Free beer and admiration or free beer, hugs and high fives. Amanda Palmer is almost directly quoting Professor BYOB in a call to musicians essentially to prove up BYOB’s theory. Kind of interesting.
I don’t know much about Amanda Palmer or her husband (aside from his successful copyright infringement prosecution lawsuit over the “Domina” and “Tiffany” characters in Spawn), but I do know quite a bit about the Open Rights Group, which is second cousin to the Electronic Frontier Foundation (in fact, they share a prominent member in the Anthony Weiner of the Copyleft aka The Hipster, whose BoingBoing blog is promoting Palmer, says Orlowski). You’ll remember the EFF from the Google Shill List and as recipients of piles of money from Google in various indirect channels. The ORG was responsible for creating Winning the Web, the anti-copyright organizer’s manual (funded by the Open Society Institute). That essay suggested that anti-copyright crusaders wrap their anti-copyright argument in a civil rights flag because artists who were harmed by file sharing are too sympathetic to take on head on. Civil rights, you know, like free expression protected from censorship. Sound familiar?
Another striking omission from the Oberholzer-Gee study, Amanda Palmer’s repeated emphasis on giving music away (or “pay what you feel”), and of course ORG’s efforts to promote Google’s IP agenda is that none of them mention that the sites that most widely facilitate ”sharing” do so at a profit, frequently by selling advertising for major brands–about as Wall Street as it gets. The same major brands whose ad publisher agreements prohibit their ads from appearing on these illegal sites. And yet they do, as we have seen on the Wall of Shame. (Check the Wall of Shame posts for some ideas about which sites I mean–I’m not talking about Bandcamp, so please no “gotchas” from the Shill List crowd.)
So the files aren’t “free” and the sales aren’t “lost.” The transactions are monetized and those are not “free” or “shared” in any definition of those words that aren’t idiosyncratic.
Just because the users aren’t being charged a per-track fee doesn’t mean the transactions aren’t monetized. They are. Read the Megavideo indictment and you’ll get the idea. Read the Google no-indictment agreement and you’ll get the idea. Google’s being sued by its shareholders over drug advertising misconduct, read that complaint and you’ll get the idea (or the stipulation Google requested to keep their board members from being deposed).
It’s not that the sales are lost, it’s that the sales are lost to the artists. If the Megavideo case shows you anything, it should show you that people…ahem…are getting rich by profiting from “free.” There is no free. No discussion of this, though.
But free beer, that’s the point. And admiration, of course.
Then there’s the fear meme–musicians don’t know where their next paycheck is coming from so they are scared so they express their fear as anger at technology or at Amanda Palmer, poor things. Think about this: Musicians never know where their next paycheck is coming from. That’s probably been true from the dawn of time and it has nothing to do with technology adoption. And think about this, too: Sometimes when people get angry it’s because they’re mad. Because they don’t like how they are being treated maybe. It just seems awfully condescending (or symptomatic of LSD) to say that when someone demands respect they’re doing it because they are scared of technology, poor things, and–here’s the LSD part–lack the singer’s singular vision. If anyone has seen Amanda Palmer criticize the Wall Street brands making money from selling advertising on pirate sites–courtesy of you know who–please leave a comment because I would welcome being wrong about that but I haven’t seen it.
So am I surprised by all this?