How to Save Journalism?

Yesterday I attended the IP and the Internet conference put on by the Intellectual Property Law section of the California Bar.  While there were many good presentations at the conference, perhaps the one that sparked the most discussion was Bruce Brown’s presentation “Using IP to Preserve Journalism in the Online World”.

One of the main themes of the discussion was on changing the law to protect hot news misappropriation.  As the discussion progressed it became clear to me that the focus was on protecting the business model by changing the law rather than trying to see how the business model could adjust to the technology and potentially regain profitability without changing the law.  In my opinion, changing the law should always be a last resort which is only attempted after all other business models have failed.

During the conversation I conceived a business plan which I believe has potential to increase online revenue for newspapers.  I would like to see the journalism industry try this and other ideas before lobbying to change any laws.

My plan:

Assuming search engines derive value from linking to “hot news” newspaper stories, publications will be able to incentive licensing by editing their robots.txt files according to a hot news standard.

For example, if the Chicago Tribune writes a story on hot news and marks it as un-indexable in the robots.txt file for 6 hours (at the end of which it is no longer hot news and the Tribune edits the robots.txt file to allow for indexing.)  Since search engines derive revenue from directing users to hot news (rather than users browsing directly to newspaper sites) search engines ought to be willing to pay for a license to index the content.  If the stories have commercial value this should be a win-win.

An obvious problem is that hot news travels extremely quickly online and the Boston Herald could easily undercut the Tribune’s leverage by quickly writing a similar article and not forbidding indexing.  Thus the Herald would receive most of the traffic that would have gone to the Tribune from the search engine and the search engines would continue to be a source to find hot news.

There are two potential solutions to this problem. If a highly desirable paper attempts this model and is able to license, than it will be against other newspapers financial interests to not use the same model (especially since we already know the current model isn’t working).  Conversely if search engines are unwilling to license to index so long as one paper does not implement this method then newspapers would need to collaborate to implement this business plan.  Such collaboration may or may not require an anti-trust exemption.

Either way I believe this model shows promise for generating more revenue for newspapers without rewriting IP law.

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Streaming won’t stop downloading because streaming is downloading

There has been a lot of news recently (for example see the articles at techdirt & the washington post) about a few studies suggesting that streaming has potential to stop illegal downloading of content online.   While the concept of legal streaming replacing illegal downloading is nice, it is naive to think that it is the answer to the record industry’s woes.  Streaming can’t stop downloading because streaming is downloading.

A basic understanding of how the internet works will demonstrate that this is true.  For anything online to be seen or heard a copy must be sent to the end users computer (or cell phone, ipod, tv, etc.).  Typically streaming works by sending the data sequentially such that the end user can begin to view or hear the content without waiting for the entire file to be sent.  This means that all a user needs to do to “download” a stream is ensure that the sequential parts of the file are saved rather than being thrown away automatically by your browser.  Don’t just take my word for it, Cory Doctorow of the Guardian agrees:

And of course, some streaming software throws away the bits after it finishes downloading them, rather than storing them on the hard-drive.
It’s this last part that has the technologically naive excited. They assume that because a downloading client can be designed in such a way that it doesn’t save the file, no “copy” is being made. They assume that this is the technical equivalent of “showing” someone a movie instead of “giving them a copy” of it.
But the reason some download clients discards the bits is because the programmer chose not to save them. Designing a competing client that doesn’t throw away the bits – one that “makes a copy” – is trivial.

And of course, some streaming software throws away the bits after it finishes downloading them, rather than storing them on the hard-drive.

It’s this last part that has the technologically naive excited. They assume that because a downloading client can be designed in such a way that it doesn’t save the file, no “copy” is being made. They assume that this is the technical equivalent of “showing” someone a movie instead of “giving them a copy” of it.

But the reason some download clients discards the bits is because the programmer chose not to save them. Designing a competing client that doesn’t throw away the bits – one that “makes a copy” – is trivial.

The point is that as much as streaming eliminates the demand for downloading, it actually makes it easier for downloading to occur.  Perhaps the decline in “downloading” is because people have discovered the ease of saving their streams and don’t need to “download” any more (there are a number of commercial products available for this purpose which I will not link to in fear of inducing copyright infringement).

The real surprising thing to me is that the record industry hasn’t already figured this out. For one it ignores the concept of music collection which Doctorow does a wonderful job of pointing out:

First of all, while streaming music from Last.fm is a great way to listen to music you haven’t discovered yet, there’s no reason to believe that people will lose the urge to collect music.

Indeed, the record industry seems to have forgotten the lesson of 70 years’ worth of radio: people who hear songs they like often go on to acquire those songs for their personal collections. It’s amazing to hear record industry executives deny that this will be the case, especially given that this was the dominant sales strategy for their industry for most of a century. Collecting is easier than it has ever been: you can store more music in less space and organise it more readily than ever before.

Second, cable companies have already figured this out and are trying to lock down your tv so that you can not record the digital cable that streams there. Google (or bing) Selectable Output Control (SOC) and see what comes up.

The end result? I believe streaming will lead to one of two things: more drm (which hasn’t worked so far) or realization that a drm free subscription downloadable system  may be a viable business plan for the record industry moving forward. It won’t make as much money as it did, but it is more than nothing and digital distribution is extremely cheap.

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Jason Mraz is Pro Bootlegging

Friday night Amy and I went to the Jason Mraz show at the Greek Theatre.  My favorite part of the show was when he played a Led Zeppelin/ZZ Top-esque version of Norm Greenbaum’s Spirit in the Sky.

After the show, I ran a quick iTunes search for the song.  Unfortunately and unsurprisingly I came up with nothing.  So instead of giving up I turned to the “dark side” of the internet.  To my surprise/delight I found that not only was a version available for download, but Jason Mraz has given explicit permission for fans to record live shows.

Jason Mraz allows audio taping at almost every live performance. We feel that each show is unique and want to offer our fans the opportunity to recreate the live experience through the audio reproduction of our shows. At all taping authorized performances, tapers can tape from any ticketed seating location in the venue. Also, for many of these performances tapers are able to purchase tickets for a specially designated taper section, normally located immediately behind the soundboard… From time to time we may record some of our shows for a live album or DVD, and we may not allow taping at those shows or we may notify you that we are going to commercially release our tapes from the show at which time we will ask you to withdraw all of your tapes from that show(s) from further trading.

How refreshing!  An artist who actually understands that fan recordings of live shows are not competition for recorded studio albums.

An interesting copyright tidbit at the end of his taping policy

No waiver of any copyright or trademark right is intended.

Since copyright only exists after fixation it is arguable whether any artist has any copyright claim against bootleggers.  However since Jason Mraz has authorized fan fixation he may have a copyright claim in every live show.  In other words explicitly authorizing taping of the show may give Jason Mraz a copyright claim for live performances he otherwise would not have had.

Coming Tomorrow Part II: Is Jason Mraz inducing copyright infringement?

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EMI Grooveshark Update

Some of you may remember the EMI v. Grooveshark from my earlier post EMI sues Grooveshark, but what about the songwriters? Big news today is that Grooveshark and EMI have come to a licensing agreement thereby ending the lawsuit

Quick thoughts: Should EMI face sanctions for filing an infringement lawsuit merely as a means of furthering it’s licensing negotiations? Or should it be rewarded for keeping the lawsuit out of court and settling?

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Are artists experts on what to do with a record?

So one of the many blogs I follow (I really need to add a blog roll to this site) is Music • Technology • Policy by Chris Caste.  A recent part of Chris’s post got me thinking:mc_hammer

I have learned that the very best person to ask about what to do with a record is the artist. They may not know all the answers, but they usually have some pretty good ideas. And it is, after all—their record.

wouldn’t ask someone in the email business what they think about selling records, and I wouldn’t expect them to ask me about the email business. I’d be more likely to ask them what they think about giving email away for free, and they’d probably tell me.

Is the best person to ask about what to do with a record the artist? I would argue no.  Artists’ expertise is making music not necessarily selling albums.  Record executives, marketers, A&R representatives, agents, and others know more about what to do with a record than the artist.

Need proof? The following musicians have all declared bankruptcy: Tom Petty, Isaac Hayes, Cyndi Lauper, Willie Nelson, Marvin Gaye, TLC, Mich Fleetwood, and MC Hammer.  While this may prove more about their inability to manage finances than their knowledge of what to do with a record, the two are related.  Selling records is a business; making music is an art.

While Lilly Allen may have important things to say about the music business as an artist, the fact that she is an artist does not make her an expert on what to do with a record.

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Should Songwriters want to get paid for 30 second previews?

A recent article at Ars Technica alerted me to the news that songwriters want to get paid a license fee for 30 second previews.  Since even the smallest sample requires a license this makes legal sense.  However there would seem to be a fair use argument as the preview could be considered not commercial (don’t get me started on why that shouldn’t be part of the standard but it is) and presumably leads to increased sales (thus not hurting the would be licensor.)

Since the preview should lead to increased sales, should songwriters be getting paid a license fee?  It seems to me that Amazon, Apple, and whoever else is offering 30 second previews should call songwriters’ bluffs here and pull all of the previews.  My assumption is that music sales would go down as people would only buy songs they already know they want and would be less likely to be extra songs on a whim.  Assuming this is correct the decrease in music sales would pressure the songwriters to give up on their license demands for previews.  Additionally record companies would supply pressure also as they would be losing money as well.

The songwriters demands appear to me to be a poorly thought out method of trying to increase their license for paid music downloads without renegotiating the license agreement.

Of course my whole theory could be rendered moot if people just find other (less legal) ways to preview songs (and continue to buy the same amount of music)

P.S. I found a great cartoon but don’t have $10 for the license fee. Check it out here

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Should Actors Be Paid for Unauthorized Youtube Uploads?


(This video appears to be authorized but is still awesome despite not being particularly relevant)

Rebecca Tushnet’s 43(b)log alerted me to an interesting copyright/trademark issue.  Apparently actors’ unions are requesting that advertising agencies either pay them for unauthorized YouTube uploads or send DMCA take down requests. The Joint Policy Committee on Broadcast Talent Relations has released a position that there are no fees associated with unauthorized uploads and advertising agencies are under no legal obligation to send take down notices.

Rebecca’s post notes that the law on whether actor’s individual rights are preempted by federal copyright law is currently split.  While I agree with Rebecca that this is a great topic for someone to right a law review note on, I don’t currently have the time.

Instead, I would argue that this should be covered by contract.  First, in this day and age (wow writing that makes me feel old) everyone should expect anything they do on video to be widely available on YouTube or elsewhere online.  Second, given that advertising agencies (and their clients) generally want their commercials to be viewed by as many people as possible, they have no incentive to issue take down notices for unauthorized uploads.  Since this should have been a foreseeable issue by the sides during contract negotiations, I would argue that the language of the contract should control.  If the contracts call for payment of fees for authorized YouTube uploads then it seems to me the advertising agencies are impliedly authorizing the uploads by their failure to police the copyright.

The implied authorization is equivalent to contributory infringement case. Contributory infringement liability requires knowledge and material contribution.  While the advertising agencies are the copyright holders they are also contributory infringing their own copyright.  Given the union’s demands for take down notices and/or fees the advertising agencies clearly have knowledge of the contributory infringement.  They also are materially contributing by failing to take action and benefiting from the infringement.  Since it appears the advertising agencies would be liable in a contributory infringement suit, I believe they have impliedly authorized the uploads in question.

Given that actors have typically waived all copyright claims to the works in question, the unions should pursue a breach of contract claim for the fees (which is presumably what they would prefer over take down notices anyways).

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Quick Thoughts on IP Protection

A recent World Economic Forum survey rated the US 19th in IP Protection.  As Nate Anderson (over at Ars Technica) points out “nothing objective is being measured in the WEF survey question on intellectual property (p. 347) except for the feelings of the executives who answered it.”  None the less the US Chamber of Commerce has called for tougher IP protection.

Unfortunately this seems to ignore the question of what the right amount of IP Protection is.  While it is not surprising that a group of businesses would call for tougher IP laws, I wonder whether they should be.  It is often assumed by businesses that tougher IP laws will help them.  However, anyone working in the current patent field will tell you that tougher IP can be a detriment to innovation.  Every IP protection results in a loss to the public domain.  In many cases the loss is outweighed by the benefits to society of the intellectual property.  However in some cases it is not.  For example in some scientific discoveries another party would have discovered the same thing weeks later.  Yet the patent system often rewards the first discovery with full patent protection.  This can lead to a net loss to society and a lossed business opportunity (assuming the discovery would have still occurred without patent incentive …)

Obviously this discussion could go on for ages, so I will instead leave you with these two thoughts:

What level of IP protection will result in not just an incentive to produce intellectual property but rather the right incentive (the gain to the producer must not outweigh the cost to society)?

How can we ensure the Congress is concerned with the above question and not the lobbying power of the US Chamber of Commerce?

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Proof Free Music and Music Sales Don’t Have to Conflict

wait for me coverOne of my coworkers over at trueAnthem alerted me to this interesting piece of information. Moby is reporting that his new album Wait For Me is #3 in the UK (behind 2 Michael Jackson re-releases).  According to iTunes the top single on the album  is Shot In the Back  of the Head.

This is interesting because Moby has been giving away the song Shot In the Back of the Head on his website since months before the album’s release.  Even though the album has been officially released and the song can be purchased, the free download is still available.

So despite the fact that Moby has been giving away the song for months, it is still the most paid for song on the third most popular album.

This appears to be great proof that free music and music sales can co-exist.

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More Add-Value Ideas

Since I continue to put off the long post I have floating in my head about Helprin and perpetual copyright, I have been short on ideas for today’s post.  Thankfully there has been a deluge of articles on artists who have chosen interesting non-conventional ways to profit from their music.  Below is a collection of some of my favorites.

The Hold Steady – Vagrant records released their album with black and white comic books to entice record sales rather than downloads.

Sonic Youth – Buy their new album before release and you get a vinyl-only recording of the band’s NYC Fourth of July concert, a poster, early access to concert tickets, and online access to a collection of outtakes and B-sides.

Sunn O))) – Their new album Monoliths & Dimensions is available under a variety of different package deals.  Each one coming with different band merchandise.

Amanda Palmer – Made $19,000 in 10 hours selling tshirts and auctioning off stuff merchandise.  Amanda connected directly with her fans via twitter.

It is exciting to see that bands and labels are continuing to get beyond the copyright battle and instead are focusing on ways to profit despite potential infringement.

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