ASCAP's Paul Williams' Misguided War on Content Creators by George Ziemann -- July 25, 2010 I'm an ASCAP member. Last week, in one of their regular e-mails that keep me informed of what stupid shit they're doing now, came some ridiculous drivel from Paul Williams. I'm not really going to quote it, so follow the link if you want to hear his side of the story. Basically, he's asking ASCAP members to contribute money to fight against Creative Commons, EFF, and anyone else that doesn't believe in allowing people that create to escape from the traditional channels and the whole sell-your-soul arrangements that they require. Lawrence Lessig, who started Creative Commons, challenged Williams to a debate on the subject. The drivel linked above is Williams' first volley. Both the CC and EFF sites have responded. So did I, immediately after reading it last week, before I read anything else. I'll even leave in the typos, in case ASCAP compares this against my e-mail. To Paul Williams. How many members does ASCAP have? And only 12,000 signed up for the silly Bill of Rights. Why? Maybe they know the history that the organization seems not only doomed to repeat, but hell-bent on it. First of all, anything that has a Creative Commons license bears it only because the copyright owner chose to do so. You are calling for a war against many of your own members. Pretty stupid. Secondly, one of you brainless idiots needs to study what ASCAP did between 1923 and 1940 trying to sue radio out of existence. In particular, pay close attention to how it ended. Your website says that radio stopped playing ASCAP music because you boycotted them in 1940. This is, of course, pure bullshit. ASCAP had already been telling radio to stop "pirating" their music for 17 years. Took it all the way to the Supreme Court more than once. Then radio created BMI and gave ASCAP exactly what they asked for -- no more ASCAP music on the radio. Good thing, too, because it made room for all the things that ASCAP had deemed unworthy -- blues, jazz, folk, country, western. If it had been up to ASCAP, rock and roll would have been stillborn. The time is coming when ASCAP's current wish (and the RIAA's) will be answered and Creative Commons is the key to it. Enough authors and composers have adopted it that CC is probably now a viable answer to the empty cries of "piracy." How about we block all music on the Internet that doesn't carry a Creative Commons license? No one will "steal" your music any more. Or hear it. That's the answer. Repeat 1940. Give all the whining idiots exactly what they asked for. My regular readers have heard this before. In fact, this is always just about the time of year that this stuff becomes the topic of the day for a while. Maybe it's because school is out and there's a lull in the drive to sue every college kid in the nation. I overlooked a few obvious things when I zapped off my reply. Like the Internet Archive, for one. But I'm trying to learn a little patience about what I put before the public eye these days, so I've let it simmer a while, although I have shared some of this in more limited venues. Who's Who in the Zoo The War on Music that's been going on since Napster first went live in December 1999 can be broken down to a very few basic factions. While this is a tangent, it is a necessary one to fully understand where I'm going with this. If you think you already know all of this, or if it just bores you, feel free to cut to the chase. The Money-Grubbing Bastards In this group we find the RIAA (representing the major record labels), ASCAP (representing the publisher and songwriters), the Songwriter's Guild, SoundExchange, and every other anagram that spells out the name of an organization whose goal is to collect as much money as possible from each and every single use of music in the United States. For the most part, this goal also includes "and keep as much of it as possible." ASCAP and SoundExchange actually do pay out most of what they collect, they just make minimal effort to make sure it is paid accurately (ASCAP) or locate the artists to whom it is owed (SoundExchange). You can also add to this list every rock star who has joined in the chorus of "They're Stealing Our Stuff." BMI is not on this list for the simple reason that I haven't noticed bullshit emanating from that barn like the stink that comes from ASCAP. Of course, BMI was on the winning end of 1940. Maybe they're being quiet because they know what's going to happen. The RIAA members (Sony/BMG, Universal, Warner, and EMI) and ASCAP compete for the "Biggest Asshole" award from time to time. Like right now. Both like to sue as many people as possible. The Academics In this group we find EFF, Public Knowledge, Lawrence Lessig, Ray Beckerman's Recording Industry vs The People, and Harvard's entire School of Law, plus a lot more. Their position on all of this is primarily based on solid principle and constitutional law. Unfortunately, after more than 10 years of the great war, principle and law haven't even dented the armor of the MGBs (Money Grubbing Bastards). It'll be even more difficult now that RIAA lawyers now run the U.S. Dept. of Justice. The Bad Guys Kazaa, LimeWire, and every other site that enables the 30 million or so P2P users in the country. The infamous "pirates." In ASCAP's case, this also includes every unlicensed bar, coffeehouse, shop, doctor's office and restaurant in the country. I don't think peer-to-peer is inherently evil. It was the original basis for the creation of the internet -- to pass information from one computer to another. It was a joint effort of the academics and the military. The academic crowd is still deeply involved in all of this because the university systems house the backbone of the internet, not to mention that the universities are the RIAA's favorite target. File-sharing over the internet is what enabled China to stop SARS, to pick just one of a million examples out of the air. Trying to stop file sharing is an exercize in futility. Although being a Mac user kept me from ever really appreciating it, the original Napster had one features that has seemed lacking on Kazaa, Limewire or any of the other p2p sites that popped up since -- If you could think of a song, it was there. All the discontinued music that was no longer worth the record labels' time to sell. All of the songs that were never hits. While p2p would seem to be a great free promotional avenue for independent artists, the drawback is that if no one knows who you are, they're not going to be looking for you. You'll be invisible. I downloaded LimeWire at one point and used it to share every song I own a copyright to or have explicit authorization to make public. What a waste of time. Better off to try handing out free CDs in front of WalMart. These three factions have been the entire focus of activity in the music world for the last 10 and a half years, especially if you get your news from the major media. Unfortunately the major media will repeat everything the MGBs say without ever questioning the validity of it. How many times have you heard "downloading is theft"? No, it isn't. Downloading isn't even copyright infringement, and copyright infringement is NOT theft. The RIAA never sued anyone for downloading. They sued everyone for sharing, aka distribution. But you never read that clarification in the Washington Post or saw it on CNN or Fox. It's always about catching the "pirates." That's just bullshit with a PhD (Piled High and Deep), not to mention shitty journalism. There are (at least) three more sides to all of this whose voices don't get heard a lot. The Good Guys Creative Commons, the Internet Archive, Apple, Amazon, and companies like Tunecore that enable artists to get their music to retail without having to go through a major record label. What these entities have done goes beyond what the Academics have achieved as a group and is what separates Lawrence Lessig from the rest of the highly educated. They are making a difference. There is a huge side-argument to be had about Apple and Amazon, as well as many of the other Internet retailers. I'm not going there. Maybe another time. The Independent Artists First of all, "indie" is not a genre, as much as the RIAA tried to hijack it into being one. It means an artist or label that does not belong to the RIAA. Every time I try to estimate the size of this group, I find that none of us knows how many of us there really are. Ever rock star was, at one time, an independent artist. Almost every one of them will be an indie once again in the future, after the record label decides they are no longer a profitable commodity. The Songwriters Not all artists are songwriters. Not all songwriters are performers or recording artists. But this group, and only this group are the only ones the U.S. Copyright Law was written to protect -- "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (U.S. Constitution, Article 1, Section 8). Doesn't mention publishers or anyone else looking to profit from the works of others. Just the "Authors and Inventors." I'm sure that if I thought harder, I could come up with a few more players in the game, but I think that pretty well pulls in the majority. The most important part is recognizing the importance of the last three, the ones that no one likes to talk about. Creative Commons has been around for quite some time now. Too lazy to look it up, but at least since late 2002 or early 2003. It was started by Lawrence Lessig of Stanford University. The idea behind CC is to allow authors and content creators the ability to mark individual files with the rights granted by the copyright owner to those who would use these files, such as the ability to share, re-mix, use in derivative works, etc., and the limitations upon those rights. Creative Commons licenses give the author freedom to define their own rules, and it gives those who come into possession of those files specific indications of what they can and cannot do with them. This is in direct contract to the views of the MGBs, which is that the end user, aka you, has no rights whatsoever, even if you have purchased a copy. The Internet Archive was started by Brewster Kahle and contains the WayBack Machine, which fulfills the name of the organization by archiving what the Internet used to say. No small task. It also has a vast collection of public domain books, movies, music and more. Personally, I fall into the Independent Artist and Songwriter categories, but I'm a troublemaker and often mistaken for one of the bad guys. That's fine with me. When they make the accusation, I know they didn't ignore me. So I educate them a little more. Having covered all the background material, let's get back to the main topic of ASCAP and their war on what we call Copyleft, which is basically an end-around the copyright laws. ASCAP's position is untenable, not to mention just plain butt-stupid, just like every other argument from each any every one of the MGBs. All of them are deceptive, if not flat-out liars. We've been listening to all the same shit for 10 years now. We can make it stop. Well, we, as in the general public, could have made it stop years ago, but the general public isn't too smart as a whole. So I'm talking about a different "we" now, which would be those of us who really give a shit about music and maybe even put it ahead of money. Gotta say that I think any kind of censorship is a terrible, evil idea and no good would ever come if it. And this is going to sound like it at first. The RIAA got a lot of play out of the demand for P2P companies, and then later the ISPs, to filter out all the unauthorized music. When they first starting making this demand, it was ridiculous. From a completely logical, computer programming point of view, there was simply no way to tell the difference. Doing so would block all the ripped RIAA music, but it would also block my completely authorized downloads and that of every other independent artist on the planet. Times have changed. Creative Commons has grown exponentially. It's used by millions of photographers, writer, songwriters and artists who want to make their creative content available to the world. At this moment, the Internet Archive's front page boasts 296,387 movies, 80,674 live concerts recordings, 585,312 other audio recordings, and 2,428,363 text files (mostly books, I would assume). All legal and free, either public domain or placed there by the creators. What's that? The bootleg audio files aren't placed by creators? Don't be silly, they're sound recordings, the copyright of which belongs to whomever made the recording. And if an artist requests, their concerts are removed. The question should come up as to why ASCAP would want to interfere with Creative Commons. Supposedly, ASCAP acts in the interests of the songwriters and publishers. The problem is that the largest music publishers in the world belong to the members of the RIAA. They are the ones who have the real muscle at ASCAP, not the songwriters. Using CC lets you avoid publishers and record labels. They don't like that one bit. So they're playing Barney Fife, "Gotta nip it, nip it right in the bud." A little late for that now. It would seem that it's a good time to bring back the RIAA's suggestion, because it's not impossible nor illogical any longer. Let's block all the "illegal" traffic. All the retail sites, as well as the Internet Archive and any other site/service wherein the artist has opted in to having their music placed there are clearly authorized. But there are a jillion sites, like my own, where indie artists offer their music. Trying to keep a registry of them is realistically out of the question. Asking all of us to properly mark our files with Creative Commons is not. I've got a CC license posted on my music page, but I'd take the time to check the IDE tags of each and every song if I knew that not doing so would prevent anyone from downloading or streaming them. I've always argued that p2p and crappy 128k mp3s should be considered advertising, just like radio airplay. The only legitimate argument I've ever heard came from Brian Stolz (who is probably still pissed about me over 2003), who said that the problem is that you don't have any control. Even the heavy hitters want you to hear a song or two off of every album for free. Some of them don't necessarily want you to have a copy for your iPod, but they do want you to hear it. Otherwise, you might not even know they have a new record out. Those of us in the "Unknown" category might be willing to give you entire albums for free. If you can get it in the ears of the potential audience, that's good exposure, especially if you can do it without spending a fortune on publicity.. Maybe they won't buy this album, but they may anticipate any follow-up effort. Limiting all mp3 traffic to authorized sources and CC licensed work gives the authors control. The last time I mentioned taking this idea seriously (though it was still pretty much impossible at the time) in a forum populated by industry bigwigs, the response was, "Well, I don't think we want to block all of it." Of course they don't. It'd stop all the pre-release tunes that magically "leak" on to the internet. People wouldn't be able to find any new music from the major labels unless they pay for it first. It's exactly what the RIAA (and ASCAP) have been requesting for years. The rest of us get to control how much we give away free and how much we hold back in hopes of seeing actual sales. Yeah, I know, it doesn't solve the issue with torrents, but that's mostly movies and porn anyway. Not my problem. To repeat myself, limiting all mp3 traffic to authorized sources and CC licensed work gives the authors control. It has the ability to end the Music War. I'd support legislative (or global) action to put this into effect.