a2im – Techdirt (original) (raw)

Legacy Recording Industry To Trump: Please Tell Tech Companies To Nerd Harder To Censor The Internet

from the feeding-right-into-the-program dept

Last week, we wrote about the ridiculous suggestion from the former Newspaper Association of America (now called the News Media Alliance) that President Donald Trump should scale back fair use because newspapers still don’t like Google. As we noted, at a time when Trump has been strongly endorsing censoring newspapers, for those very newspapers to tell Trump to undermine a key cog in protecting free speech was absolutely ridiculous.

And, of course, now we can add the legacy recording industry to this same “shoot foot” brigade. Upon hearing about Trump’s meeting with the heads of a bunch of top tech companies, the RIAA and a bunch of related recording industry associations (including ASCAP, BMI, A2IM, NMPA, SoundExchange and more… ) have sent a letter to Trump (found via Variety), asking him to force the internet companies to nerd harder to find better ways to censor the internet. This is fairly incredible, seeing as the traditional recording industry wasn’t exactly a major Trump supporter. For them to now reach out to Trump and urge him to increase censorship of the internet is fairly astounding and sickening. Basically, to the RIAA and friends, hatred of Google and the internet is more important than concepts like free expression or holding our elected officials accountable.

Of course, the legacy recording industry doesn’t come out and directly say “censor the internet,” but that’s exactly what they’re asking for here (though watch the blog posts from defenders of the industry howl about me making this intent obvious):

Surely the world?s most sophisticated technology corporations can do better ? by helping to prevent illegal access and paying fair market value for music with prices set by or based on the free market.

Strong protection for intellectual property rights will assure growth in both creativity and technology, benefiting the American economy as a whole.

We hope you will lead the effort to assure American creativity is encouraged, invested in, protected and fairly compensated in a manner that carries out the exclusive rights guaranteed in the Constitution to those who, with the genius of their mind, form the cultural identity of our great nation.

The call for censorship is in “preventing access” which means blocking what you can do online. The hilarious part is the “prices set based on the free market” because that’s exactly what the industry is protesting. The whole “value gap” bullshit is basically the industry saying “we do not like what price the free market is setting, and therefore we need the government to artificially inflate prices through monopolies.

Just to be clear, if you’re whining about not getting “fair compensation” you’re clearly saying “I’m upset about the price the free market has set.”

But the bigger issue here is the censorship piece. I shouldn’t have to detail here how many times we’ve shown that copyright is abused for censorship purposes (including by governments). The call to hold platforms more accountable and putting the onus on them to “nerd harder” is a call to ramp up tools for censorship-via-copyright. This is pretty ridiculous — and one hopes that musicians who have spoken out against Trump will also speak out against this demand to give him and his friends more power to censor parts of the internet.

Filed Under: copyright, donald trump, nerd harder, recording industry, value gap
Companies: a2im, ascap, bmi, google, nmpa, riaa, soundexchange

First Amendment Concerns About Internet Radio Bill Not Just Overblown But Completely Backwards

from the let's-do-this-slowly dept

I’ve been tossing around a longish blog post about some of the controversy concerning the Internet Radio Fairness Act (IRFA) over the past month or so, but haven’t had a chance to put it all down in a blog post. I did, however, wish to pick up on a small thread that got a brief spark of attention from some people who don’t seem to understand legal stuff in the slightest. It started with musician David Lowery (you may remember him from past nonsensical rampages) claiming that Section 5 of the bill muzzled free speech and thus violated the First Amendment. This isn’t just wrong. It’s completely backwards. But the language and history here is a bit complex, so let’s dig in a bit.

First off, you have to understand that the amounts that satellite and internet radio pay for a “performance right” for broadcasting songs is not (generally) an individually negotiated rate, but rather is set by the Copyright Royalty Board, using a variety of questionable standards. As we’ve noted in the past, the CRB is notoriously bad at setting reasonable rates — and part of that is because part of its very charter is to block disruptive innovation if it has an impact on “generally prevailing industry practices.” Thus, it tends to set rates super high. This is exceptionally bad for innovation, competition and for artists in the long run, though I’ll get to that in another post. One thing that it more or less ensures is that these industries will be dominated by a very small number of super large players, because no one else will be able to afford the rates — and this effectively locks in the top guys. That’s what’s happened, as you have Sirius dominating satellite radio and Pandora dominating internet radio. But the rates are so crazy that it’s difficult to impossible for these companies to ever be profitable.

We’ll get back to that in a moment. But, now, go ahead and read the full text of the bill if you’d like. For this discussion, jump over to Section 5, entitled “Promotion of a Competitive Marketplace.” The section is relatively short.

SEC. 5. PROMOTION OF A COMPETITIVE MARKETPLACE.

(a) Limitation of Antitrust Exemptions-

(1) EPHEMERAL RECORDINGS- Section 112(e)(2) of title 17, United States Code, is amended–

(A) by inserting ‘, on a nonexclusive basis,’ after ‘common agents’; and

(B) by adding at the end the following: ‘Nothing in this paragraph shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).’.

(2) DIGITAL SOUND RECORDING PERFORMANCES- Section 114(e) of title 17, United States Code, is amended by adding at the end the following:

> ‘(3) Nothing in this subsection shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1). > > ‘(4) In order to obtain the benefits of paragraph (1), a common agent or collective representing copyright owners of sound recordings must make available at no charge through publicly accessible computer access through the Internet the most current available list of sound recording copyright owners represented by the organization and the most current list of sound recordings licensed by the organization.’.

The important thing to understand here is that there’s currently an antitrust exemption for SoundExchange, the organization that collects money from internet and satellite radio offerings (and sometimes has difficulty finding artists to pay them). SoundExchange basically needs an antitrust exemption because it is, by definition, a monopoly. What the bill is doing is something simple which is actually beneficial for artists. It’s saying that SoundExchange can’t use that antitrust exemption to try to stop artists from having the option, if they want to go do direct deals with internet or satellite radio providers. The second part is similar, but not referencing an antitrust exemption. It’s just saying that any group that is representing multiple artists can’t seek to block other artists from choosing to do a direct deal.

Sirius XM, in particular, has been trying to negotiate direct deals that route around SoundExchange. Now, why would artists ever want to negotiate directly with a Sirius or Pandora when they’ve already got the Copyright Royalty Board forcing ridiculous high rates on those providers? It’s not as if those sites will choose to pay more directly. However, what they can do is offer better service than SoundExchange. That is: they can pay faster, they can provide more data and details, better access to users, etc. And that’s what both companies are attempting to do. Also, for artists who actually act as their own label, they can actually make more money because they’re cutting out a lot of middlemen who take their cut (it’s convoluted, but click that link to see the details).

So, short version: it’s certainly not for everyone, but some artists might find it beneficial to go direct. If they choose not to, they can still have SoundExchange collect and distribute their money and that’s fine as well.

Now, jump to March of this year… when Sirius sued SoundExchange and A2IM (the RIAA of indie labels) claiming antitrust violations. Sirius argues in its lawsuit that SoundExchange and A2IM conspired and colluded to effectively forbid artists from going direct. Because proving direct collusion is difficult, Sirius’ lawsuit is filled with circumstantial evidence, which doesn’t prove an antitrust violation, but infers that there might be fire behind the smoke. The goal, there, is to get to discovery to try to suss out some smoking guns of collusion. So, the lawsuit includes various bits of circumstantial evidence, including a number of artists and indie labels that Sirius reached out to who flat out told them that A2IM prevents direct licenses, or that they’d have to first ask A2IM for permission. As part of the circumstantial evidence, Sirius also points to this blog post from A2IM that argues against doing direct licenses.

That lawsuit is still crawling along, so it’s unclear if it’s going anywhere. Honestly, proving collusion is crazy difficult, and I doubt Sirius will succeed, but some of that circumstantial evidence is eye-opening.

And that leads us to Section 5 of IRFA. As you can read above, what it makes clear is that the existing antitrust exemption cannot be used to “prohibit, interfere with, or impede direct licensing” and similarly that any group acting for some artists could violate antitrust laws by blocking the free will of other artists to negotiate their own deals. In other words, the bill makes it clear that if A2IM or SoundExchange really are colluding to impede artists from choosing to do direct deals, that could be seen as an antitrust violation. This, then, is about protecting artists and indie labels from large organizations like SoundExchange or A2IM, should they try to block those artists and labels from voluntarily doing direct deals.

So you would think that self-declared, if often confused, “defender of artists rights,” David Lowery, would like that. But he doesn’t for reasons that suggest a serious misreading of the bill or misunderstanding of this background. He points to the language, and then at the text of the Sirius lawsuit, apparently not understanding the nature of circumstantial evidence, and argues that “This is the type of explanatory speech — not conduct — that Sirius XM thinks is illegal and IRFA definitely would outlaw.” The only problem with this statement is, well, everything. It’s wrong. Nothing in the bill would outlaw that kind of speech. At all. Nor does Sirius’ lawsuit claim that such explanatory speech is illegal. Instead, it is arguing that that blog post, along with a host of other circumstantial evidence, is enough to suggest there’s a fire somewhere providing all that smoke. Under IRFA, such blog posts would still be perfectly legal, so long as A2IM didn’t also use those blog posts to collude and directly hinder copyright holders from doing direct deals.

All that Section 5 of the bill is saying is that the A2IMs and SoundExchanges of the world can’t try to hide behind antitrust exemptions to argue that such coercion to block artists from doing direct deals is free from antitrust scrutiny. And, outside of the exemption, they also cannot restrict artists from doing direct deals.

And yet, Lowery (and some of his followers) have taken up the banner claiming that this is a First Amendment violation and that it censors free speech. What he seems to be missing is that the only speech it blocks is speech that is used to collude or to block artists from voluntarily making a deal. Under Lowery’s interpretation of the bill, collusion by large companies to force independent artists and labels to do business their way only is legal… because it’s free speech to collude..

That’s kinda nutty. His argument is, basically: legalize collusion!

A few weeks ago, Lowery gleefully confronted supporters of the bill with this argument at the Future of Music Coalition Conference, which led bill sponsor, Senator Ron Wyden, to hit back and claim that, as one of the strongest defenders of the First Amendment, he’d never support a bill that took away free speech rights. He promised Lowery that he’d review the specific language of the bill, and if there were any interpretations that impacted free speech rights, he’d fix them.

And he followed through with that, asking the Congressional Research Service to look into the matter, which it did. In a note published last week, they make it quite clear that it is extremely unlikely that there would be a First Amendment issue raised by the bill:

… it seems unlikely that, in practice, Section 5 would impinge upon First Amendment rights for a few reasons.

They then go on to detail those reasons — which can be summed up as, Congress has the right under its authority to regulate interstate commerce, to create antitrust law that blocks collusion (as it applies to interstate commerce). Basically, since antitrust law is Constitutional, so is Section 5:

The antitrust laws are generally considered to comport with the First Amendment, because though the Sherman Act may restrain speech on occasion, the restraint is incidental to Congress’s legitimate goal of maintaining a free market. In the case of Section 5, Congress would arguably be creating a similar prohibition, particularly since the bill specifically references the antitrust laws. As noted above, Section 5 would generally prohibit copyright owners acting jointly from taking any action to interfere with direct licensing negotiations. This provision appears to be intended to further the government’s interest in preserving the rights of individual copyright owners to negotiate directly with potential licensees without interference from entities like member-based royalty collection organizations. It could be argued that this is similar to Congress’s intent to preserve a free market by enacting the antitrust laws. Under Section 5 an individual copyright owner would have the option, as she always has, of negotiating royalty rates individually or collectively, but with an added protection from interference on the part of groups of copyright owners that might seek to prevent her from exercising her individual rights. If the provision is read to prohibit activity and speech similar to, and not broader than those prohibited by the Sherman Act, Section 5 likely would not violate the First Amendment for similar reasons that the antitrust laws do not violate the First Amendment. The restrictions on speech may be interpreted to be incidental to a valid exercise of Congressional authority to regulate interstate commerce.

In other words, exactly what we were saying: unless you’re arguing that collusion is legal because it’s free speech, the argument that Section 5 violates free speech is quite unlikely.

Because the CRS is quite thorough, it also does work through some scenarios under which the bill might possibly have Free Speech implications. But the only thing it can come up with is that a court would have to somehow interpret Section 5 to restrict speech beyond what’s in antitrust laws (i.e., beyond activity designed to restrain trade). Considering how vocal bill supporters have been about this clause not being intended to go beyond the law, it would be somewhat incredible for a court to have that interpretation.

Of course, to make things even more amusing, Lowery himself posted about this CRS destruction of his key argument… and declared victory. Why? Because the CRS report, in its typically even-handed manner, discusses Lowery’s scenario, of a blog post potentially violating Section 5, and notes that “though this hypothetical presents a broad interpretation of the language of Section 5, it is not an implausible one.” Lowery cuts off the text at that point and declares victory… conveniently leaving out the detailed explanation of why this isn’t a First Amendment violation (as explained above).

The confusion, it appears, stems from yet another misreading by Lowery of the CRS report. He interprets the “not implausible” claim to refer to his overall argument that the bill restricts free speech rights. But that is not what it is saying. It is saying that he is right that if a blog post somehow interfered with someone else doing a direct licensing deal — i.e., restricted interstate trade under existing laws — then it could violate the Act… but as such would not likely violate the First Amendment. So, the conditions here are that the blog posts themselves would have to actually impede trade, which the CRS report itself notes would require a very broad interpretation of the bill, one that is quite unlikely.

In the end, this appears to be much ado about nothing. The original complaint was a misread, which the CRS report clearly corrects, and Lowery doubles down by then misunderstanding the report itself. Still, from this vantage point, it’s been rather amusing to watch a somewhat confused David Lowery thinking that he’s “protecting artists,” while he’s been arguing against a provision in the bill that is actually 100% designed to protect artists against collusion to block them from doing their own deals — deals which (especially for truly independent artists) could be more lucrative. It would be almost comical, if it weren’t that a bunch of artists who haven’t understood all this have been parroting Lowery’s claims, believing that they’re arguing for their own self-interest, when the reality is that they’re literally arguing that organizations like SoundExchange and A2IM should be able to collude and block their ability to negotiate favorable deals.

Filed Under: antitrust, collusion, david lowery, first amendment, free speech, internet radio fairness act, irfa, ron wyden
Companies: a2im, sirius xm, soundexchange

SoundExchange & A2IM Sued For Antitrust Violations By Sirius

from the sirius-charges dept

Well, well. Last fall, we discussed how Sirius XM was aiming to cut out SoundExchange and try to do deals directly with labels for performance rights. There’s some history here. SoundExchange was set up and spun out of the RIAA specifically to collect performance royalties from Sirius XM and emerging internet streaming offerings. Radio doesn’t pay performance rights to musicians (they just pay mechanicals to songwriters/publishers), and while the RIAA has wanted that to change for years, it used the “newness” of satellite and the internet to suddenly claim that this extra tax must be paid there, and then set up SoundExchange to collect it. The “rate” was a statutory rate set by the Copyright Royalty Board (CRB), which involved a huge fight, with SoundExchange basically demanding a significant cut of everyone’s revenue. The CRB eventually agreed to a sliding rate starting at 6% and moving up to 8% over time — much, much lower than what SoundExchange wanted (there was an even more intense fight over internet rates, but that is a separate issue).

Even with this “lower” rate, Sirius XM provides a huge chunk of SoundExchange’s revenue — around $200 million last year alone. Realizing that the deal that set up SoundExchange noted that it was “nonexclusive,” Sirius sought to cut SoundExchange out of the loop and go direct to labels. Obviously, Sirius’s goal is to pay less in royalties, and that led some to wonder why a label would want to do it, since the royalty rate would be lower. Except, it’s a little more complex than that.

Sirius notes that in cutting out the middleman, you avoid SoundExchange’s (hefty) administrative fee, as well as its notoriously opaque payment process which has left many labels scratching their heads. SoundExchange provides little information as to why artists get paid what they’re paid, leaving open significant concerns that the money is not being accounted for properly. Similarly, SoundExchange has been notorious for having “difficulty” finding artists — though I will say that they’ve definitely been improving a lot on that front, and really have made a huge effort to reach out to artists. Still, there certainly could be benefits for labels to go direct. Cutting out the middleman, having more relevant and accurate data, as well as more timely payments could certainly be worth it. In fact, Jeff Price at TuneCore explained how indie artists who were their own labels would almost certainly benefit by going direct.

However, the wider industry flipped out and closed ranks, with SoundExchange, the RIAA and A2IM (like the RIAA but for indie labels) all urging labels not to have anything to do with direct deals. Sirius XM looked at all of this and saw a clear antitrust violation as it certainly feels like the entire industry colluding against it. To that end, it has sued SoundExchange and A2IM for antitrust violations — and even gone so far as to ask for SoundExchange to be “dissolved and unwound.” While the actions of other music industry trade groups — including the RIAA, NARAS, AFRTA and AFM — are mentioned in the lawsuit, they are not listed as defendants (yet). The focus is very much on SoundExchange and A2IM, whose boss, Rich Bengloff, sits on the board of SoundExchange (along with a bunch of RIAA folks).

In the filing (embedded below), Sirius reports on multiple attempts it made to sign deals with indie labels, in which it was repeatedly rebuffed with claims about how Rich or A2IM had urged them not to do direct deals.

For example, Sirius XM’s direct license outreach to independent label Bandit Records was short-circuited when a representative of Bandit Records told Sirius XM that“[w]e’re members of A21M and Merlin. I think that prevents a direct license.” Upon information and belief, one or both Defendants communicated with Bandit Records (or through its representative Merlin Network) and pressured them to refuse a direct license.

O. Sirius XM’s effort to engage in direct license discussions with independent label Unitedlnterests was similarly derailed when, on August 30, 2011, a representative of Unitedlnterests wrote: “I heard that XM was making these requests. I will look at the license,**but will also confer with A2IM and other indies.**” Upon information and belief, UnitedInterests pursued those discussions and therefore agreed with A2IM and/or other record companies not to enter into a direct license.

Sirius XM’s approach to independent label CA Management was stopped in its tracks when, on October 27, 2011, a representative of CA Management told Sirius XM that he was “getting mixed reviews about the best way to handle” the direct license offer. Several weeks later, on November 15, 2011, he told Sirius XM that “the RIAA has asked everyone to hold off.”CA Management never entered into a direct license with Sirius XM because, upon information and belief, after CA Management communicated with RIAA, it agreed to participate in the industry boycott.

There are more, similar, examples in the filing. There’s also a discussion of some indie labels who did sign on, but then backed out, claiming pressure from A2IM. From the filing:

Defendants’ unlawful efforts have also extended to extracting agreements from labels that have already signed direct licenses to attempt to back out of them. By way of example. on November 28. 2011. Sirius XM entered into a direct license with Paracadute, TMB Productions, Michael Doughtv. and Michael Viola. On February 9, 2012, Paracadute and TMB Productions requested that they be released from the deal. Surprised by this request, Sirius XM’s agent asked Darren Paltrowitz, the person with whom they had negotiated the deal, for an explanation. Mr. Paltrowitz’s, response was an e-mail with talking points strikingly similar to the Defendants’ press release, which Mr. Paltrowitz indicated were supplied by the bands’ business manager. That business manager is Perry Resnick, an artist manager with RZO LLC, and a longtime member of the SoundExchange Board. After further discussions, on February 22, 2012, Mr. Paltrowitz wrote that he “relayed [Sirius XM’s] feedback to RZO, and they — per conversations with A2IM and other folks beyond SoundExehange — stand their ground about wanting us to opt out” of the direct license. That same day. Mr. Paltrowity cut and pasted an email he received from Mr. Resinick that stated: “I know for a fact that Rich Bengloff, the head of A2IM … is against this. Rich and I have had this exact conversation, and are both in agreement that SoundExchange is the better way to go.”

Of course, there are a few reasons why SoundExchange and its board members would be so against this. As noted earlier, they still think that the royalty rates should be much higher, and have indicated multiple times that in the next round of ratesetting at the CRB, they are going to push for royalty rates double to triple of what Sirius XM is already paying. That’s certainly part of why Sirius would like to cut them out of the picture. But, as some have noted, doing direct deals outside of SoundExchange doesn’t just let Sirius avoid whatever crazy rates the judges at the CRB choose out of thin air, but it allows them to argue that the actual market rate is lower. You see… the way the CRB works is that it’s supposed to try to set a statutory rate that is effectively what the market would choose on its own. Historically, since there were no market-based deals, it had nothing concrete to base its decision on, other than what SoundExchange or Sirius told the judges. However, if Sirius is able to cut direct deals (and do them at an even lower rate) then when the CRB hearing comes around, Sirius now has empirical evidence of a lower market rate. That’s a pretty big deal.

Honestly, I’m not sure either side in this fight comes out looking good. It’s really just a fight about who pays how much, and who gets a cut. This is the kind of messy thing that happens when a clueless Congress decides that a clueless judicial board should magically “set rates” based on nothing in particular. Sirius XM is hardly an angel in this fight, but based on some of the quotes in the filing, there may be something of a case here — though proving full on antitrust violations are not easy.

The real issue, it seems, is that groups like A2IM are supposed to represent the industry, but are not supposed to be a central point of collusion for the industry, driving policy decisions back to the labels. That’s coordinated effort among competitors that could very well cross the line. The close-knit nature of the SoundExchange board makes all of this even more complicated (and again raises serious questions why Congress ever allowed SoundExchange to be birthed from the RIAA, rather than being truly independent in the first place). I can’t image a court would actually dissolve SoundExchange, but if it turns out that this lawsuit has legs, things could get very, very messy in the industry (and it certainly could shake up A2IM in a big way as well). This is one worth paying attention to.

Filed Under: antitrust, collusion, copyright, direct license, performance rights, rich bengloff, royalties, satellite radio
Companies: a2im, riaa, sirius xm, soundexchange

from the hide-ya-kids dept

I attended that excellent Digital Music Forum: East conference yesterday in Manhattan, where I appeared on stage to interview Gary Shapiro, the head of the Consumer Electronics Association and the author of the (really excellent) new book The Comeback. It’s really worth reading, and I think a ton of Techdirt readers would enjoy it, as it hits on a ton of points we regularly discuss, concerning innovation, policy and intellectual property. That discussion was fun, and Gary made some great points about trying to look towards the future, and avoiding mistakes like the recording industry suing its own customers.

However, the panel that was the most fascinating was later in the day with a panel called “Lawyers, Guns & Money,” discussing questions around music file sharing and what should be done about it. The lineup of panelists included Rich Bengloff (who later told me that I should have the word “editor” stripped from my badge because it gave me too much credibility — nice guy, that Rich) from A2IM (who represents independent music labels), Michael Petricone from the Consumer Electronics Association, Julie Samuels from the EFF, Mark Eisenberg who has worked at the major labels and is now a consultant, and Bryan Calhoun from SoundExchange. The whole thing was moderated by Jonathan Potter who certainly knows how to make a panel get… lively.

Not surprisingly, there was a fair amount of disagreement on some of the issues, with Bengloff doing the usual song and dance about “piracy” destroying the music industry. Julie Samuels, correctly, pointed out that Bengloff was being misleading, and it was the recording industry that was having trouble adapting, not the music industry. Bengloff insisted this wasn’t true, and insisted (contrary to every single study we’ve seen) that every other aspect of the music business was in massive decline. Petricone then responded by bringing things around to a key point: copyright law was designed for one purpose and one purpose only: to act as an incentive to create content. And, if you look at the market today, you’d have to be delusional to say that the market is having any problem in that area whatsoever. More music is being created today than ever before. More people are spending more money on music and music related goods than ever before. There’s a massive variety of music available today. Basically, the content space is absolutely thriving. So, arguing that there’s a problem in the market seems misguided.

And this is the point where the panel went off the rails a bit. Suddenly, Bengloff decided it was time to directly attack Petricone (with a brief jab thrown at me for some reason). He pulled out some paper, showing that he came prepared specifically to try to do a character assassination on Petricone. What was the piece of paper? Apparently a petition to try to get an independent musician to become the new head of SoundExchange — with Petricone’s signature supporting the petition. Whether or not this particular musician was qualified to be the head of SoundExchange may be a fair question, but Bengloff effectively said that the very act of supporting an actual musician to be head of SoundExchange showed that he didn’t care about musicians and he was just trying to help consumer electronics providers. If someone can explain the logic here, it went over my head. The suggestion that Petricone doesn’t actually care about music or musicians was quickly debunked by other panelists, who point out that he’s a massive supporter of musicians, and the whole attempt to paint Petricone as some anti-musician person just made A2IM and Bengloff look petty and focused on character attacks rather than the key issues at hand.

This resulted in a bit of a meltdown on the panel with people starting to scream back and forth at each other over various issues, and it took a bit of time to get the panel back under control, at which point it went back down the same old road, with one group claiming “woe is me, the industry is dying,” while others pointed out that’s simply not true and there are ways to adapt and change and succeed. Petricone pointed out — as we were just discussing that it’s silly to present the tech companies as being somehow “evil” in all of this, as their interests are very much aligned with the content creators’ interests. This is the same frustration point we’ve reached before.

As the panel wound down Eisenberg tried to make a point about where the industry needed to go, saying “we all know that everybody needs to get paid, and the real question is how do we best bring that about.” I have a problem with this statement, because no one needs to get paid. In a capitalist free market economy, the whole point is that it’s your own responsibility to figure out how to get paid, and if the market shifts, you need to learn to shift with it or perish. That’s the nature of innovation and creative destruction. When the automobile came along, no one said “but the horse buggy creators need to get paid!.” The horse buggy creators figured out how to adapt, or they went out of business. The fact that we have so many people creating music today, and the various research shows musicians making more money than ever before in the past certainly suggests that musicians are adapting. As for the record labels? Well, some are adapting, but it still appears that many are not.

Finally, Julie Samuels pointed out that it took nearly 50 minutes into the panel before anyone mentioned the fans of music, and how to actually respond to what they want. This is another key observation that sort of highlighted the problem. The fans are the people that the industry needs to be paying attention to, listening to and engaging. Instead, they declared war on them. When that backfired, the industry declared war on the tech innovators — the companies who were creating the infrastructure and tools to lead them through this. It’s as if the recording industry can’t help but to attack those it needs the most.

Either way, it was an entertaining panel to watch, if only for the screaming match in the middle. Still, I am hopeful that someday soon, we can have discussions on how to move forward and embrace opportunities, rather than fighting over how do we go back to a past that isn’t coming back.

Filed Under: copyright, debate, julie samuels, michael petricone, rich bengloff
Companies: a2im, cea, eff

Indie Music Association Comes Out In Favor Of Seizing Domain Names Of Blogs That Promote Their Music

from the sad dept

If there ever were a group that should be embracing new business models and encouraging the music industry to look forward instead of back, you would think it would be A2IM — the American Association of Independent Music. After all, they don’t have the same legacy issues facing the big four record labels represented by the RIAA. Instead, they can be more creative and willing to experiment with what works well. In fact, over the years, we’ve noted some really cool and unique experiments done by lots of truly creative and innovative indie labels — including many who are members of A2IM (and even some represented on A2IM’s board).

Yet, we’ve noticed an unfortunate pattern. A2IM often seems to want to be the “mini-RIAA,” frequently staking out identical positions on the issues, and simply adding a “me too” to whatever the RIAA says. Early on it came out in support of ACTA. It’s also been involved in astroturfing campaigns in favor of 3 strikes laws, and most recently, argued against the concept of net neutrality (Update: to be clear, as Bengloff explains in the comments, they were only against specific aspects of a proposed net neutrality plan). The group’s leadership has effectively admitted at times that they take orders from the RIAA. For example, on the issue of ACTA, A2IM’s President, Richard Bengloff, admitted he had not seen ACTA, but supported it because the RIAA told him to.

The latest situation is particularly egregious. Jesse Townley, who runs the famed indie label Alternative Tentacles (Dead Kennedys, Jello Biafra, Butthole Surfers, etc.) alerts us to an email that Bengloff has sent out, urging indie labels to write to John Morton, the head of ICE, the Homeland Security group that seized all those domain names last month under highly questionable methods:

To Independent Labels, Creators & Service Providers who rely upon music having value:

For years we have called on government to help fight Piracy, including those websites that promote the devaluation of music and disregard the rights of creators by leaking music early and without permission. Both the Obama Administration and the Congress have started to provide creators much needed support in recent months. The U.S. Immigration and Customs Enforcement (ICE) Agency has taken aggressive action against infringing websites, recently seizing the domain names of 82 sites. Since then ICE, and its Director John Morton, have been taking heat in the blogosphere and in some print media for their actions. It is imperative that the music community let the Administration know just how vital ICE’s actions are, and how much we appreciate them.

We need to show them some love for their action! PLEASE send a note to John Morton thanking him for what he’s doing.

This letter, which also highlights a recent A2IM press statement, was sent to the Obama administration by A2IM today. They need to hear from our members across the country now!

Use the A2IM letter as a guide, but please personalize your letter… And express your support for the current actions of U.S. Homeland Security detailed in the attached link press release

Yes, you read that right. A2IM, which is supposed to represent independent labels, is supporting the government seizing domain names of sites with no due process, no First Amendment review. Even worse, as it has become clear, the “evidence” against these sites involved songs that were sent by the copyright holders, and the sites in question were well known within the industry for being key places to promote new music. In fact, some of them were near the top of Vibe’s top hip hop blogs list, and were well known places for promoters, labels, artists and DJs to go to promote their works.

So why would an organization like A2IM come out in support of that? It seems that they’ve just decided to hop on the “blame piracy!” and “the government must save us” bandwagon, rather than actually helping their member labels adapt to the world we live in. Pretty sad when labels that supposedly represent the independent and innovative spirit run to Homeland Security to try to shut down some blogs. Why would any indie label want to support that?

Townley also was kind enough to share his response to A2IM, saying that “This flies directly in the face of record labels trying to be flexible & USE blogs for promotion, which all of us smart ones are doing (among many other things).” I doubt A2IM will listen, but maybe it’s time for the really innovative indies to form their own group that doesn’t focus on demonizing fans and treating them like criminals, but actually helps these labels and the artists they represent embrace new opportunities online.

Filed Under: domain names, indie labels, music, richard bengloff, seizures
Companies: a2im

from the it's-not-the-same dept

We’ve already seen how music industry execs and lobbyists cynically use “child porn” to their advantage (even, sickeningly, declaring “child porn is great”) by lumping it in with copyright infringement in trying to force filters or other third party policing of the internet on politicians and companies. What’s amazing is that they don’t seem to have any shame at all in doing so. The latest example can be found in the “open letter” put together by a bunch of music industry trade groups (RIAA, A2IM, AFM, AFTRA, ASCAP, BMI, NMPA, SESAC, SoundExchange, the Recording Academy, the California Songwriters Association, the Music Managers Forum, and the Nashville Songwriters Association International) to Verizon and Google asking them to make sure their proposed “framework” for net neutrality still doesn’t cover forcing ISPs to be copyright cops. It’s no surprise why they sent this letter, but the inclusion of “child porn” with copyright infringement is really ridiculous:

The music community we represent believes it is vital that any Internet policy initiative permit and encourage ISPs and other intermediaries to take measures to deter unlawful activity such as copyright infringement and child pornography.

The industry seems to work overtime to try to link these two concepts together, despite the vast differences between them. It’s really an incredibly cynical, exploitative and disgusting move by the recording industry, and people should really start calling them on it.

Filed Under: child porn, copyright, net neutrality, recording industry
Companies: a2im, afm, aftra, ascap, bmi, nmpa, riaa, sesac, soundexchange

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America American Association of Independent Music (A2IM) American Federation of Television and Radio Artists (AFTRA) American Society of Composers, Authors and Publishers (ASCAP) American Society of Media Photographers, Inc. (ASMP) Association of American Publishers (AAP) Broadcast Music, Inc (BMI) Commercial Photographers International Directors Guild of America (DGA) Evidence Photographers International Council Independent Film and Television Alliance (IFTA) International Alliance of Theatrical Stage Employees (IATSE) Motion Picture Association of America, Inc. (MPAA) National Music Publishers Association (NMPA) NBC Universal News Corporation Picture Archive Council of America (PACA) Professional Photographers of America (PPA) Recording Industry Association of America (RIAA) Reed Elsevier Inc. Society of Sport & Event Photographers Software & Information Industry Association (SIIA) Stock Artists Alliance Student Photographic Society The Advertising Photographers of America The Walt Disney Company Time Warner, Inc. Universal Music Group Viacom Inc. Warner Music Group

Funny… isn’t it, that all these companies and industry groups are supporting a deal that no one’s seen yet? Oh wait… that’s because many of them have seen it and actually have had a hand in creating it. But what’s really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it’s a pure faith-based letter saying “if you pass this secret treaty, good things will happen.” I don’t know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don’t respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It’s a deal to try to sneak through a system for propping up an obsolete business model by companies who don’t want to adapt.

Filed Under: acta, copyright, counterfeiting, evidence, lobbyists, secrecy
Companies: a2im, aap, aftra, ascap, asmp, bmi, disney, gda, iatse, ifta, mpaa, nbc universal, news corp, nmpa, paca, ppa, reed elsevier, riaa, siia, time warner, viacom, warner music group