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More Gibberish from Creative Commons Corporation

July 20, 2010 5 comments

Readers of MTP will remember that we have long cautioned professional artists about having anything to do with Creative Commons Corporation licenses. This criticism is mostly from the music point of view, but some illustrators and photographers are also concerned (see “Public Licenses: The Gift that Keeps on Giving” by Professor Jane Ginsburg and “The Tragedy of the Creative Commons” by Andrew Orlowski).

The biggest problem that we’ve had with the Creative Commons Corporation licenses is that the license is internally inconsistent in an artful sort of way–or as some might say gibberishical. When reading these things, you get the feeling that the drafter was genuinely trying to say something serious, and clearly took themselves very seriously, but simply lacked the knowledge to get it right with all good intentions.

The real question, of course, is why anyone on the receiving end would accept what the license refers to as the “lawyer-readable code” (a phrase that surely came from the mind of a student that might have been a cute idea for 5 minutes) which seems to be preoccupied with giving the illusion of a meaningful grant of rights.

Consider this gibberish in the Creative Commons Corporation FAQ:

“So I don’t have to pay to use Creative Commons-licensed works if I comply with the license terms?

As a general rule yes [meaning, I think, “yes you do not have to pay” in case you just got lost]—Creative Commons licenses are made available under royalty-free licenses. In the case of Creative Commons-licensed works that are licensed for NonCommercial use only, the creator or licensor reserves the right to collect statutory royalties or royalties under compulsory licenses for commercial uses such as those collected for public performances; so, you may still have to pay a collecting society for such uses of Creative Commons licensed works. However, these are indirect payments, not payments to the licensor.”

Note: In the U.S., the compulsory mechanical royalty for a song is payable on units made and distributed–not commercial vs. noncommercial. A very, very common mistake, but a mistake nonetheless.

The performance royalty is payable under blanket society licenses for public performances–not commercial vs. noncommercial.

I have absolutely no idea what is meant by “indirect payments” and I cannot find the phrase in the Copyright Act. But if such “indirect payments” exist in relation to a copyright (whatever they are) would these payments not be made to the copyright owner (presumably the licensor) at least in part? If not, then to whom are they made? And if someone other than the licensor is entitled to these “indirect payments” (whatever they are) how could the licensor have standing to waive the right to receive the monies?

Not to worry, as a licensee you can always fall back on your indemnity under the Creative Commons Corporation license if there’s an unexpected royalty obligation.

Oh, sorry, I forgot–there is no indemnity.

So in fairness, perhaps the FAQ suffers from trying to deal with too many different categories of copyright at once without distinguishing them. But wouldn’t it have been simpler just to say a licensor under a noncommercial license waives all the rights they can under applicable copyright laws, but that some rights may not be waivable in certain jurisdictions. And that the noncommercial license doesn’t cover commercial uses?

And then there’s the song titles.

Makes you want to say, “Deal me in!” don’t it?

Stay tuned.

New Music 7-16-10 The Cataracs, I Blame Coco, Cocknbullkid, 10 Years, Royal Canoe

July 16, 2010 Comments off

News from the Goolag: Organizing the world’s information–whether the world likes it or not

July 16, 2010 Comments off

A handy guide to all the places Google is being sued–courtesy of Read Write Web “Google vs. The World

Geist Blows It Again: Stay out of the business, Mr. Chips

July 13, 2010 Comments off

Susan Crawford, founder of One Web Day and the recently-departed Special Assistant to President Obama for Technology and Innovation, put it this way: “I was trained in the Internet Age by people who believed that nation states were on the verge of crumbling and that anything an [ISP] wanted to do [was irrelevant]…we could geek around it. These people were irrelevant.” Of course, when she started working for a nation state, she apparently became more cosmopolitan in her appreciation for the distance between the utopian Internet Age her mentors taught to her and the resilience of the nation state as a matter of political geography and legal reality. “Geeking around” the nation state is still pretty radical stuff. There’s an extremely long way between the open society and London, or Paris, or Moscow, or Kathmandu, or Washington.

Or Ottawa. Michael Geist seems to overlook this in his most recent facile analysis of other people’s property which would have his readers believe that the reason Canada has not seen much uptake in the digital retail space is because of business decisions, not because Canada has failed to implement the same treaties that the rest of the major world economies have done that is the first step toward building a market with market rules.

(For those who do not recognize the name, Michael Geist is aka “he who shall not be named,” according to a prominent Canadian artist), or alternatively “the wonderful Michael Geistaccording to Lester Lawrence “AceLessig III, author of “The Starving Artist Canard” among other works. Mr. Wonderful is advisor to the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and the paid consultant to Industry Canada. SGCIPPIC‘s external advisory board includes Lessig the American, the American EFF legal director, the American director of the American EPIC, and the American Pamela Samuelson, who is also a board member of the American EPIC and the American EFF—in short, 100% Yanks. So this Canadian affiliate of the Samuelson-Glushko system is to IP in Canada kind of what Alcoa of Canada is to Canadian industry.)

According to Michael “Mr. Wonderful” Geist, the reason Canadians can’t get certain goods digitally is not because Canadian copyright laws are weak and largely unenforced, not because of the Isohunts or Pirate Bays, and certainly not because of Canada’s failure to reform its copyright laws which Geist has uniformly opposed. (See, e.g., the “Canadian DMCA” passed by Canadian puppet governments at the behest of the all-powerful Big Media.)

“While frustrated Canadians may be inclined to call on the government to ‘fix’ the problem, the reality is that this is a business issue. Geo-blocking will only disappear if the business models they support give way to global approaches that make the borderless Internet a reality.”

So according to Geist, the reason for geo-blocking (i.e., letting a good be available in one country and not another by requiring that a service block a set of IP addresses) is because of a “business decision” that could have been made more swiftly. Delays in the launch of iTunes Canada was, we are told, largely because of territory-based licensing that is “old” and wedded to those pesky nation states that Susan Crawford thought could be geeked around. And then of course there are the rights of the citizens of such nation states, more specifically their artists– but Geist fails to mention that “small” point.

As Susan Crawford experienced, there is a radical difference, an extreme difference, between the “borderless Internet” or the “open society” that allows the technologically advanced to “geek around” the nation state. Not to mention the mainstream views in national governments whose laws protect their citizens’ rights, including Canadians. Geist tells his readers, “Apple iTunes arrived in Canada nearly two years after the U.S. edition not because of copyright laws, but rather because a new round of negotiations was needed with copyright owners to obtain the necessary approvals.” Actually, ITMS US for Mac launched April 28, 2003 with the Windows version of iTunes launching in the Windows format the following October. ITMS Canada launched in the Mac and Windows formats on December 4, 2004, barely a year later.

I would like to pay Geist the compliment of saying the statement is simply false, but it’s not even possessed of sufficient truth value to be able to call it out. The statement confounds “approvals” with “copyright laws” in such a fundamental and elementary way that it makes one wonder how someone with Geist’s exalted 38 page resume could have missed the issue so completely. Aside from the itty bitty Windows coding issue.

The main reason that iTunes launched outside the US later than the US store (strictly from a rights perspective) has nothing to do with “approvals” (whatever that’s supposed to mean) and everything to do with obtaining licenses under Canadian copyright laws and more importantly the Canadian rates that were to be paid and how they were to be paid to Canadians—because of the rights created in Canadian artists, companies and collecting societies by Canadian law. Same as for iTunes UK, Europe, Japan, Australia and so on.There is also the little matter of setting up, staffing and paying for a transborder business and the fact that Apple launched multiple stores outside the US during 2004-2005—meaning that these same negotiations must have taken place simultaneously in multiple countries with different people.

And here’s a newsflash—one of the biggest licensing hurdles to get over in these deals is local repertoire—not major labels. Nobody in their right mind would launch a music retailer in a country without a rich offering of local music. The major reason these negotiations took some time was that unlike the US, the copyright laws outside the US did not permit record companies to pass through the mechanical reproduction license for musical compositions. So the local collecting societies issued licenses and received payments for the benefit of their members.

The larger question might be why is the digital media marketplace in Canada is far less developed than other major economies. This is quite out of step with the historical release patters of physical goods—that is, an observable direct corollary to the online counterpart. Most split territory distribution deals are US and Canada and ex-North America. This is in no small part due to a shared language, shared border, common law history, and some cultural commonalities. A far more likely explanation is the lack of legal certainty and political risk in the operating environment. This is particularly true in the murky opposition to effective copyright laws both inside and outside of Industry Canada.

This isn’t the first time that Geist missed the fundamental copyright distinction—recordings are artists, songs are songwriters. Repeat. Sorry folks—no Yanks Under the Bed on this one.

These delays were not due to “approvals.” The delay was due to the law and the normal time it takes to launch a global brand–actually done in record time by one of the great all-time marketing and business teams in nearly perfect execution.

It would be a radical and extremely corrosive departure in the name of some borderless “open society” to ignore the local laws of the many countries in which cultural business is done that are designed in large part to protect their local cultures from corporatization by outsiders seeking to “geek around” these protections. Because in order to give effect to a “borderless” licensing regime, somebody somewhere would have to grant the licenses and collect the money and maybe even eventually pay the artists–shocking thought, I know.

And who might we look to in order to accomplish this gargantuan task of worldwide compulsory licensing? ACTA, maybe? No, no, not that. What entity is out there that might like to dictate to artists what their rights are and how much money they are entitled to? Who is setting up monopsonistic registries as fast as they can? Perhaps someone who might want a chicken in every pot and a share of advertising revenue for every citizen of the world? Who might be interested in promoting this idea of the “borderless” global license because it scales?

I just wonder. Perhaps a member of the CCIA that Geist likes to puff up?

But the more interesting question is when compulsory licenses are available—such as the mechanical license in the US or the streaming sound recording license for webcasting—why is it that the Isohunts and Pirate Bays or their users do nothing to take advantage of these licenses? Even when these licenses have been available for a hundred years in the case of mechanicals and a decade in the case of streaming?

Launching a legitimate international business online is no small task. But it has absolutely nothing to do with “approvals” and everything to do with local licensing laws and managing multinational operations. I for one have no desire to see a “borderless” global licensing regime that would take precedence over the protections afforded to artists by their local laws, particularly moral rights laws.

But I think I know who does. And it’s not out of an abundance of concern about preserving local cultures or artists and it’s not the guys who got the licenses.

Lessig’s Pals Pirate Party Hosts Pirate Bay on Swedish Parliament Servers

July 12, 2010 4 comments

Remember when Lester Lawrence Lessig III (call sign “Ace“) said he liked everything about the Pirate Party except the name?

How about this: “[Sweden’s] Pirate Party, which is an entirely separate organisation to the [Pirate Bay], albeit with some of the same political goals [keep saying that and maybe one day it will be true], has promised to use a Swedish law offering immunity from prosecution to parliament to prevent the site from being shut down.” Readers of MTP will remember how Rick Hawk Wing of the Swedish Pirate Party got cheesed when I referred to the Pirate Party as the political arm of the Pirate Bay?

If the Swedish parliament grants immunity to the Pirate Bay, maybe Sweden doesn’t need protection from NATO.

New Music 7-9-10: VersaEmerge, Vanessa Lively, Zuzuka Poderosa, Lissie, Tiffany Page

July 9, 2010 Comments off

Staff picks:

VersaEmerge

Vanessa Lively @vanessalively

Zuzuka Poderosa @zuzukapoderosa

Lissie

Tiffany Page @tiffanypagehq

ACLU takes the bait and helps EFF with its delaying tactics

July 7, 2010 1 comment

In case anyone hasn’t noticed over the last decade, the EFF’s litigation tactics are designed to do two things–deny artists the choice of how they want their works distributed and (hopefully) sold, and obfuscate as much of the paper trail as possible to help thieves get off scott free.

The principle way they accomplish these goals is through delay in the courts. No better example is the current quagmire they have managed to create around the Hurt Locker case. They actually managed to get a judge to put them in the position of deciding what kind of notices could be sent to infringers.

And what makes this particular case all the more special is that EFF somehow suckered ACLU into siding with them. Let’s see how long this takes. $100 says we are still talking about the form of the notices in 12 months.

And every minute of every day more films are ripped off, more thieves get away with it and it’s mission accomplished for the EFF as long as they can dely, obfuscate and get away with it.

More artists are denied choice, control, respect of their rights and a remedy for their losses. A Constitutional right without a remedy is no right at all.

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