A tweet from David McLaugh­lin found me think­ing, silently reflect­ing I sup­pose (and that’s mostly what this post is — an attempt to put those down), about the very (at least to me) inter­est­ing place the music indus­try has found itself in as we head – already – into the sec­ond month of the sec­ond year of the sec­ond decade of the sec­ond millennium.

I retweeted David’s Forbes link as it’s a pretty fas­ci­nat­ing read that hand­ily sum­marises the [rene­gade] rise of the-soon-to-be-household-name, Daniel Ek from geek to owner and vision­ary behind one of the most impor­tant musi­cal deliv­ery plat­forms on the planet right now, Spotify.

Essen­tially it’s a story which has been repeated hun­dreds of times over the cen­turies: man/woman, often odd, dri­ven or a loner, has a wacky idea comes from way out on the fringes, from a place where all the cor­po­rate or estab­lish­ment R&D bucks in the world can’t or won’t reach. He or she runs with the idea and it finds both its time and its audi­ence and changes the world.

Think Guten­berg (and I’d refer you to this piece in The NZ Lis­tener (not online yet) and by exten­sion the book, which I’ve yet to read but will, although I hav­ing a nig­gling feel­ing it may annoy rather than illu­mi­nate in places), Henry Ford, The Wright Broth­ers and you get the idea. Bill Gates was one, despite the fact he ‘bor­rowed’ much of the frame­work needed to achieve his grand vision. Jobs too of course, but I think that both dig­i­tal enter­tain­ment and the hand­held com­put­ing device, despite the fact that he too bor­rowed much of the con­cep­tual frame­work, will be his endur­ing legacy, rather than the com­puter I’m writ­ing this on now.

So we have Spo­tify and it arrives, bril­liantly, at a time when we have the tech­ni­cal deliv­ery mech­a­nisms and – finally – the arrival of a mind­set rooted closer to com­mon­sense on the part major con­tent owners.

Spo­tify offers cheap (read ‘free’ in most of the world) access via 21^st Cen­tury tech­nol­ogy (read fast unlim­ited – apart from NZ but I guess it will get there even­tu­ally – inter­net) access to almost every­thing musi­cal. And it will grow from there.

It’s a radio sta­tion, and one that the user/s pro­grammes. Wel­come to the even­tual death of com­mer­cial radio as we now know it. Yep, peo­ple still lis­ten to radio, and in some num­bers, and radio folks will tell you of grow­ing audi­ences and more, but this tech­nol­ogy – along with the other arriv­ing vari­ants on the theme – have drawn the line in the sand. Tai­lored audio will even­tu­ally dom­i­nate pri­vate lis­ten­ing, fac­to­ries, retail and just about every­where else where we cur­rently lis­ten to things from a radio broad­cast. And algo­rithms will ensure that we get what we want and the tai­lored broad­cast will evolve as our tastes and desires evolve.

It’s a tun­ing knob, XFM, pod­casts and niche radio all rolled into one. It has only just begun. It may take a while but that’s where it will end up. And, mostly, major con­tent hold­ers and cor­po­ra­tions will con­trol it — the RIAA’s dom­i­nant voices already own 18+ % of Spo­tify, thus the noise - jus­ti­fi­able - about dou­ble dip­ping by com­pa­nies who already pay their acts a fairly lowly amount under con­trac­tual terms which are often less than generous.

But, man, did these same con­tent hold­ers fight it tooth and nail. Five years back record com­pa­nies were hol­ler­ing in hor­ror at any­thing close to the world they now live in — and are now doing rather well in.

Remem­ber Peter Jenner’s words, back in 2006:

.…. I think in two or three years blan­ket licenses will be with us in most countries.

It was Jen­ner, for­mer man­ager back in the dis­tant past of Pink Floyd (early days), Ian Dury, and The Clash (it was he who tried to save the band from them­selves and their errant destruc­tive but inspired orig­i­nal and suc­ces­sor man­ager, Bernie Rhodes with­out suc­cess) who both touted sub­scrip­tion and was heav­ily shot down by the estab­lish­ment for doing exactly that.

And yet he was (mostly) right, although it took a year or two more than he pre­dicted in that inter­view. ¹

Half a decade on we have found our­selves in the obvi­ous place where all-you-can-eat audio comes from both a free model (sup­ported by ads on your desk­top) and a sub­scrip­tion model (on mobile devices).

And that’s not all. As shown in this (incom­plete) data from Techdirt’s Mike Mas­nick, the enter­tain­ment indus­tries are doing, despite the end­less howls of col­lapse, pretty darn tidily. The news in there is noth­ing new of course. I was blog­ging some­thing sim­i­lar a cou­ple of years back — income was ris­ing and we had been scammed by half-truths, par­tial stats and more to pro­duce a pic­ture that was mostly smoke.

If you looked beyond IFPI, MPAA and RIAA media then the stuff you’ll see below was there for the curi­ous to find.

Emerg­ing from the shock of Nap­ster, from the col­lapse of CD sales, to the arrival of iTunes and the war the music con­tent indus­tries fought against the mod­ern world, and lost, came an indus­try that some­how had been blud­geoned so many times that they even­tu­ally were forced to adapt.

The indus­try had been dying from the death of a thou­sand cuts: not only dig­i­tal piracy (which was and is a far lessor vil­lain than you are sup­posed to think it is, but I won’t go into that here), but the rise of the track as the pri­mary unit of music, alter­na­tive demands on dis­pos­able income, reces­sion, relent­less mostly self induced bad press, awful A&R, accoun­tancy trump­ing cre­ativ­ity and so on.

Some­where, slowly and with some inspired new blood mostly dri­ven by the indie sec­tor which has both boomed and is soon to dom­i­nate, as the big­ger indies evolve into the new majors ² the death of a thou­sand cuts has become the life of a thou­sand cuts.

Wit­ness YouTube. We all do — all the time.

Once you get past the first few pages and the fact that it reads like an extended ver­sion of the open­ing scene of The Empire Strikes Back, the Megaupload/ Kim Dot­com indict­ment refers sev­eral times to the copy­ing of files from YouTube to fill up the MegaVideo site. If you read through to page 30 you get this detail:

In approx­i­mately April 2006, mem­bers of the Mega Con­spir­acy copied videos directly from Youtube.com to make them avail­able on Megavideo.com.

The irony in this — which seems to have escaped the Feds — is that almost every­thing con­tain­ing third party copy­righted mate­r­ial on YouTube in April 2006 was deemed by the own­ers to be pirated. It wasn’t until the Via­com case in 2007 and the con­tent ID sys­tem intro­duced that year fol­lowed by pro­gres­sive licens­ing through to 2009 that the songs and music were legit­imised on the Google site. That aside, I guess scrap­ing copy­right mate­r­ial tech­ni­cally hosted ille­gally is still tak­ing copy­right mate­r­ial — it’s almost like steal­ing from a fence.

That ques­tion aside, and it’s noth­ing more than an aside to this, the point is that the things you now watch on YouTube are more or less legit now and the indus­tries found a way to mon­e­tise that ‘piracy’ (read the Via­com link above — it’s no more or less vir­u­lent, wide rang­ing and some­what irra­tional than the MegaU­pload indict­ment) and extract cents from every play.

And extract cents from count­less other sources — video, sync, games, stream­ing, soft­ware, toys, per­for­mance and so much more — to slowly rebuild the col­laps­ing walls of the house that Ahmet, Gef­fen, Black­well, Gordy, Davis and so many oth­ers built in the 1960s, 70s and 80s.

And so it sur­vives, albeit rad­i­cally changed — the days of the mas­sive super­star acts are draw­ing to a close despite Adele (the excep­tion that proves the rule — even Lana Del Rey’s num­ber two US chart entry fig­ure is, for all the fuss, way less than an album would have achieved if it had entered in the 20s a decade or so back), as is the dom­i­nance the sur­viv­ing trio of majors.

Which brings us to to Megau­pload and it’s alleged share of the inter­net. Given that, really, its offences seem to be lit­tle dif­fer­ent in scope to the rogue YouTube, as doc­u­mented in that Via­com indict­ment, one won­ders why the ‘man’ is so keen to stomp so vis­i­bly and bru­tally on the founder and face of the site.

The indict­ment seems to be both ridicu­lous and absurdly insup­port­able in much of its con­tent and any court out­come, even just the extra­di­tion case, is likely to take years to play out as con­vinc­ingly explained by Rick Shera here.

Clearly Kim doesn’t have a mas­sive US cor­po­ra­tion as a par­ent as YouTube did by 2007, and he has rubbed all the Mega­Corps severely up the wrong way in so many doc­u­mented ways. Boy has he pissed them off. He’s the rogue geek that never came in from the cold and couldn’t believe his luck when all that cash began arriv­ing. He’s not that clever, obvi­ously. If he had been, he would’ve taken the oppor­tu­nity to ensure that he was for­ever safe and loaded. It was do-able.

How­ever, for all that I can’t quite work out exactly why no real attempt has been, or is vis­i­bly being made, to mon­e­tise the fact the site clearly makes lots of money by attract­ing mil­lions of peo­ple who like both music and film. Indeed, it’s long been doc­u­mented that the peo­ple most likely to steal music are the same peo­ple most likely to buy music. They are fans. It is sim­ple commonsense.

So, if an algo­rithm can be con­structed to iden­tify and reward for con­tent watched  on YouTube, why is doing some­thing sim­i­lar not being done for the cyberlockers?

Or do they still want to hang on for the off-chance that it really will some­how return to 1998 and all will be fine.

I’m still not sure they quite get it, Mr. Jenner.

I had an email from Google.

I get quite a few emails from Google — most are either one or more of the var­i­ous alerts I find so handy to keep me feel­ing in-touch with the world with­out hav­ing to make the extra effort to hunt, or notes telling me that some­body new — at least half of whom I don’t think I know — has added me to a Google+ cir­cle. This, of course, adds some social media vari­a­tion to the end­less requests from peo­ple I’ve never heard of want­ing to add me as a friend on Face­book, or the ‘fol­lowed’ advice telling me I’m now haunted by a mar­ket­ing or travel advice bot or, and this hap­pened last week, an account owned by a trac­tor fac­tory on Twit­ter (the first of which is ignored, the sec­ond of which is blocked — I’m not ardently crav­ing ‘fol­low­ers’ nor ‘friends’).

Then, I still belong to Old Friends, but the only noti­fi­ca­tion I seem to get from them is when one guy, with whom I went to board­ing school and haven’t seen since, end­lessly changes jobs.

He’s now the ware­house man­ager at a trac­tor fac­tory in Perth so there may be a link.

But, yes — a let­ter from Google sat in the junk mail. Well, not Google, per se, but YouTube, which is a Google under­ling of course.

It was fairly straight­for­ward bit of official-ese.

It told me that I’d breached copy­right, and under the DMCA I was in minor trou­ble. The offend­ing video was this one:

Yep, that’s Toy Love. They were a New Zealand band of some import who released one fairly influ­en­tial album back in 1980 — but of course any ardent New Zealand music fan/buff/follower/addict/trainspotter knows that. The album was released via WEA Records Ltd. — now Warner Music New Zealand — on a label called DeLuxe owned by a guy called Michael Brown­ing, the for­mer man­ager of AC/DC. The other major act on the tiny label at the time was INXS.

[An aside: this post is yet another rant about things copy­right related — if such irks it may pay to stop read­ing now.]

Time passed and the Toy Love album was deleted. In fact it was deleted for years. Decades. It went for big money sec­ond hand. Toy Love had no com­mu­ni­ca­tion from DeLuxe, and the whole own­er­ship of the album was up in the air. In the early 2000s the band finally man­aged to get the rights back and reis­sued the album, licensed to Fly­ing Nun Records. Fly­ing Nun, in 2005, became a sub­sidiary of Warner Music Group, admin­is­tered by Warner Music New Zealand. The copy­right in the record remained with the band though. In 2010 Fly­ing Nun went back into local hands and with it went the rights to dis­trib­ute that album.

[Another aside: Michael Brown­ing still has, via a murky Aus­tralian com­pany (who also saw fit to issue a boot­leg of the NZ punk album AK79 under the title Aus­tralian Indies Vol.1 a few years back), an un-remastered shock­ing qual­ity copy of the orig­i­nal Toy Love album listed for sale online — avoid it and buy the band’s ver­sion if you are inclined.]

Last year — whilst hunt­ing through junk — I found a disc of old punk video footage. Amongst it was the video in that YouTube clip. I con­tacted the band mem­bers and, with their approval, uploaded it. I guess I thought I was in the clear. Noth­ing on that video actu­ally came from the album, and even if it had done so, I had writ­ten approval from the band, who now own the copy­right in all recordings.

Warn­ers have never owned it. Ever. Never.

Unfor­tu­nately Warner Music Group don’t see it that way. With­out any proof, legal right, paper­work or sub­stance, they’ve claimed the rights to that (and another sim­i­lar Toy Love video uploaded with per­mis­sion) and, accord­ing to the let­ter, they have the right now to run adver­tis­ing with the video if they want. In other words, they’ve stolen the clip’s copy­right from Toy Love and are now assert­ing a right to profit from some­thing they don’t own.

Piracy is a good word for that. It has cur­rency these days.

Any­one who’s been pay­ing atten­tion in recent years knows that the big labels — Warn­ers are the worst — have done this to thou­sands, per­haps hun­dreds of thou­sands of videos, almost ran­domly it seems. They claim enough, they get to keep a per­cent­age I sup­pose — and get the per­for­mance fees spinoff.

So, YouTube have a process to deal with that, they claim. You can write and con­test pirated or dodgy claims like this and they say they will look at it.

Yeah, sure.….

I’ve already been through that and know how it works — or more, doesn’t. At least not in favour of the smaller copy­right owners.

Here’s another video:

That’s a cool, funny, video — made as a school project by some stu­dents in Hamil­ton — to the par­ody tune, Stole My Car. Now Stole My Car in itself is a grey record­ing. It’s a par­ody of OMC’s How Bizarre — yes you knew that — cre­ated by a guy at a radio sta­tion in Rotorua in 1996. It was a mas­sive air­play hit all over the world, fol­low­ing How Bizarre’s trek around the planet — it was a top ten air­play record in Queens­land in its own right– but was never offi­cially released any­where. ¹

I own the copy­right in the audio — 100% unen­cum­bered — and, given that visu­als are lifted from the game Grand Theft Auto, owned by the indie Rock­star Games that com­pany could per­haps make a claim on those. How­ever, they, to date, haven’t done so.

I liked the video so much, and I’ve always loved the par­ody, that I uploaded it to my small YouTube chan­nel. All cool — or it should have been.

I received a let­ter from Google/YouTube. Sony Music had made a claim on the audio. They owned the rights to the record­ing I was told.

A mis­take I guessed.

I filled out the cor­rec­tion form and sent it off to YouTube. They own no part of it I explained.

The response was:

All con­tent own­ers have reviewed your video and con­firmed their claims to some or all of its content:

• Entity: SME  ²  Con­tent Type: Sound Recording

I looked at this and tried to work out what this meant.

It came down to one or more of the following:

a)Sony Music are mis­taken
b)Sony Music are lying
c)YouTube are mis­taken
d)YouTube are lying

I fully under­stand that this is a minor nothing-blip in the copy­right enforce­ment mael­strom, being that the mas­ter record­ing was prob­a­bly iden­ti­fied by an algo­rithm that was not as clever as either Sony or Google thought it might be and that a) was the rea­son this clip was tagged. That led to c).

How­ever, my big­ger prob­lem was the sec­ond claim by YouTube that ‘All con­tent own­ers have reviewed your video and con­firmed their claims to some or all of its con­tent’. Given that Sony played no part in releas­ing this any­where on planet earth, and have no jus­ti­fi­able claim to any part of the sound copy­right, I’m very doubt­ful that, at any time, ‘All con­tent own­ers have reviewed your video and con­firmed their claims to some or all of its content’.

It is, bluntly, a lie by YouTube. It’s d). SME did not review the video and did not con­firm anything.

It’s bull­shit. Brazen, open and unashamed.

Yes it’s a small thing, but once again it’s theft of a copy­right. The copy­right I own has been com­pro­mised, and cour­tesy of YouTube’s lazy lie (and I think it is just a lazy lie rather than some grand con­spir­acy), handed to a third party who do not own it.

There are 5 more videos on my chan­nel on which sim­i­lar claims — all bogus — have been made. I only have 15 videos up there, so that’s about 50% of all videos I’ve uploaded that have had part of the copy­right stripped from them whether it be lazily or with mali­cious intent — the end result is the same — by Google. I have no say in whether adver­tis­ing is run with them, and — worse — Warner Music, Uni­ver­sal Music and Sony Music are all get­ting paid each time they are played.

Mul­ti­ply that by the num­ber of videos on YouTube (and the meet­ing I had with a cou­ple of indie label own­ers recently where we all asked “Have you ever had any money from YouTube, despite being duly reg­is­tered to receive such?” “No”, “No”, “No” — major labels DO get YouTube monies — large monies) and it adds another dimen­sion to the unpleas­ant conundrum.

Grand Theft Video indeed.

Is The Sky Falling on The Con­tent Industries?

A must read from Stan­ford Law School’s Mark A. Lem­ley found at The Social Sci­ences Research Net­work:¹

Henslowe: Mr. Fen­ny­man, let me explain about the the­atre busi­ness. The nat­ural con­di­tion of the the­atre busi­ness is one of insur­mount­able obsta­cles on the road to immi­nent dis­as­ter. Believe me, to be closed by the plague is a bagatelle in the ups and downs of own­ing a the­atre.
Fen­ny­man: So what do we do?
Henslowe: Noth­ing. Strangely enough, it all turns out well.
Fen­ny­man: How?
Henslowe: I don’t know. It’s a mystery