Creative Commons for Music: What’s the Point? January 22, 2012
Posted by Bill Rosenblatt in Law, Music, Rights Licensing, Services, Standards.22 comments
I recently came across a music startup called Airborne Music, which touts two features: a business model based on “subscribing to an artist” for US $1/month, and music distributed under Creative Commons licenses. Like other music services that use Creative Commons, Airborne Music appeals primarily to indie artists who are looking to get exposure for their work. This got me thinking about how — or whether — Creative Commons has any real economic value for creative artists.
I have been fascinated by a dichotomy of indie vs. major-label music: indie musicians value promotion over immediate revenue, while for major-label artists it’s the other way around. (Same for book authors with respect to the Big 6 trade publishers, photographers with respect to Getty and Corbis, etc.) Back when the major labels were only allowing digital downloads with DRM — a technology intended to preserve revenue at the expense of promotion — I wondered if those few indie artists who landed major-label deals were getting the optimal promotion-versus-revenue tradeoffs, or if this issue even figured into major-label thinking about licensing terms and rights technologies.
When I looked at Airborne Music, it dawned on me that Creative Commons is interesting for indie artists who want to promote their works while preserving the right (if not the ability) to make money from them later. The Creative Commons website lists ten existing sites that enable musicians to distribute their music under CC, including big ones like the bulge-bracket-funded startup SoundCloud and the commercially-oriented BandCamp.
This is an eminently practical application of Creative Commons’s motto: “Some rights reserved.” Many CC-licensing services use the BY-SA (Attribution-Share-Alike) Creative Commons license, which gives you the right to copy and distribute the artist’s music as long as you attribute it to the artist and redistribute (i.e. share) it under the same terms. That’s exactly what indie artists want: to get their content distributed as widely as possible but to make sure that everyone knows it’s their work. Some use BY-SA-NC (Attribution-Share-Alike-Noncommercial), which adds the condition that you can’t sell the content, meaning that the artist is preserving her ability to make money from it.
It sounds great in theory. It’s just too bad that there isn’t a way to make sure that those rights are actually respected. There is a rights expression language for Creative Commons (CC REL), which makes it possible for content rendering or editing software to read the license (in XML RDFa) and act accordingly. As a technology, the REL concept originated with Mark Stefik at Xerox PARC in the mid-1990s; the eminent MIT computer scientist Hal Abelson created CC REL in 2008. Since then, the Creative Commons organization has maintained something of an arms-length relationship with CC REL: it describes the language and offers links to information about it, but it doesn’t (for example) include CC REL code in the actual licenses it offers.
More to the point, while there are code libraries for generating CC REL code, I have yet to hear of a working system that actually reads CC REL license terms and acts on them. (Yes, this would be extraordinarily difficult to achieve with any completeness, e.g., taking Fair Use into account.)
Without a real enforcement mechanism, CC licenses are all little more than labels, like the garment care hieroglyphics mandated by the Federal Trade Commission in the United States. For example, some BY-SA-licensed music tracks may end up in mashups. How many of those mashups will attribute the sources’ artists properly? Not many, I would guess. Conversely, what really prevents someone who gets music licensed under ND (No Derivative Works) terms from remixing or excerpting in ways that aren’t considered Fair Use? Are these people really afraid of being sued? I hardly think so.
This trap door into the legal system, as I have called it, makes Creative Commons licensing of more theoretical than practical interest. The practical value of CC seems to be concentrated in business-to-business content licensing agreements, where corporations need to take more responsibility for observing licensing terms and CC’s ready-made licenses make it easy for them to do so. The music site Jamendo is a good example of this: it licenses its members’ music content for commercial sync rights to movie and TV producers while making it free to the public.
Free culture advocates like to tell content creators that they should give up control over their content in the digital age. As far as I’m concerned, anyone who claims to welcome the end of control and also supports Creative Commons is talking through both sides of his mouth. If you use a Creative Commons license, you express a desire for control, even if you don’t actually get very much of it. What you really get is a badge that describes your intentions — a badge that a large and increasing number of web-savvy people recognize. Yet as a practical matter, a Creative Commons logo on your site is tantamount to a statement to the average user that the content is free for the taking.
The truth is that sometimes artists benefit most from lack of control over their content, while other times they benefit from more control. The copyright system is supposed to make sure that the public’s and creators’ benefits from creative works are balanced in order to optimize creative output. Creative Commons purports to provide simple means of redressing what its designers believe is a lack of balance in the current copyright law. But to be attractive to artists, CC needs to offer them ways to determine their levels of control in ways that the copyright system does not support.
In the end, Creative Commons is a burglar alarm sign on your lawn without the actual alarm system. You can easily buy fake alarm signs for a few dollars, whereas real alarm systems cost thousands. It’s the same with digital content. At least Creative Commons, like almost all of the content licensed with it, is free.
(I should add that I wear the badge myself. My whitepapers and this blog are licensed under Creative Commons BY-NC-ND (Attribution-Noncommercial-No Derivative Works) terms. I would at least rather have the copyright-savvy people who read this know my intentions.)
The Future of Music: From Blanket Licensing to Registries October 10, 2011
Posted by Bill Rosenblatt in Law, Music, Rights Licensing, Standards.4 comments
The Future of Music Coalition Policy Summit, which took place last week, has been a fixture in Washington, DC for a decade now. For those interested in how copyright has to find its way in the ever-changing world of digital music, this is a wonderful place to spend a couple of days. The FMC Policy Summit is a great event — and an inspiration for our own Copyright and Technology Conference — because it gathers many different types of people and forces them into a single room to get to know one another. As an organization, FMC represents the interests of independent musicians and songwriters, but the subject matter discussed at its Policy Summit should be of interest to anyone contemplating the future of music.
The panels at the FMC Policy Summit cover a range of topics beyond copyright. But last week’s conference had two panels on copyright arcana that were linked implicitly if not explicitly: on the first day, a panel on blanket licensing; on the second, a panel on music copyright registries. Perhaps the most remarkable aspect of these two panels was that digital music expert/ideologue Jim Griffin was on the latter panel, not the former.
Let me take a couple of steps back to explain why this is remarkable.
The treatment of music copyrights most countries is a horrible mess. It is so complex as to be virtually incomprehensible to content creators — the people who need to understand them the most.
If you make a music recording, you have two sets of copyrights: one for the underlying composition (which could be someone else’s if you didn’t write the music), and another for the recorded performance of it. Each of those rights needs to be owned by, granted by law to, or licensed by entities such as record labels, distributors, service providers, and end-users. These rights are handled in various different ways in the United States. Some are implicit copyright rights; some come from so-called statutory licenses that have been added to the copyright law; some result from ad-hoc license agreements; and some come through collecting societies (a/k/a PROs or Performing Rights Organizations) like ASCAP and BMI, which represent only those rights holders who sign up with them.
If you’re already confused, welcome to a very large club.
A few panelists at the FMC Summit — mainly law-professor types who habitually think in terms of concepts and idealism instead of practicalities and the real world — contemplated blowing up the entire system and starting from scratch. Others, such as the new Register of Copyrights, Maria Pallante, settled for “Sure it’s bad here in the US, but it’s worse elsewhere” arguments. Her predecessor, Marybeth Peters, was an advocate of streamlining the entire music licensing process so that content creators can come closer to “one-stop shopping,” as countries such as the UK have attempted.
There are two schools of thought on how to improve a system that, in the words of Gary Greenstein of the law firm Wilson Sonsini (who will also speak at Copyright and Technology 2011), exists primarily to preserve the many jobs that would be eliminated under a more streamlined system. One is to move to a comprehensive system of blanket licensing, i.e. forming entities that represent all music rights holders and license their works under fixed terms. Another is to use technology to measure all usages of copyrighted works and compensate rights holders accordingly.
These two schools of thought are not mutually exclusive. Automated measurement and compensation can work in a blanket or statutory licensing regime if the technology is pervasive and accurate enough. Yet blanket licensing usually works with compensation schemes derived from sampling (e.g., BMI requires radio stations to log the music they play for a couple of weeks each year) or levies (“copyright taxes” collected from makers of consumer electronics or blank recording media). These are blunt-instrument approaches which all but guarantee that “long tail” content creators will not be compensated fairly and that abuses will creep in.
The blunt-instrument school of thought has persisted for quite a while as a lowest common denominator that is at least practicable, even if it has outlived its usefulness. Yet recent developments have proved two important things: first, the blunt-instrument approach has serious limitations in the digital world, given the Byzantine nature of the underlying system; second, better alternatives not only exist but are exposing the inherent inadequacies of the blunt-instrument approach.
The better alternative that has emerged here in the States, according to the views of most FMC Policy Summit attendees, is SoundExchange. SoundExchange came in to being in the early 2000s as the result of laws enacted in the late 90s that established “performance rights in sound recordings”; this meant that online music services had to pay royalties for playing recordings, not just for the underlying compositions. The latter royalties are administered by composers’ collecting societies like ASCAP and BMI. As the result of the new laws, online music services would have to pay performance royalties, though terrestrial broadcast radio would not. (See, I told you this was a confusing mess.)
SoundExchange requires online music services to collect data on the music they play, report the data, and pay royalties accordingly. (Small noncommercial webcasters are exempt from this process and only pay a small flat annual fee.) SoundExchange negotiates royalty rates for various types of digital music services (webcasters, on-demand streaming services, satellite radio, etc.) through periodic rate-setting proceedings before panels of judges in Washington.
FMC Policy Summit attendees — who tend to be musicians, songwriters, or indie label people — see SoundExchange as a beacon of light in the darkness, an organization that gets musicians paid and does it with relative transparency and low overhead, at least compared to older organizations like ASCAP and BMI.
While SoundExchange has shown that automated, data-driven royalty compensation can be done, advocates of blanket licensing have run into a major snag: if you’re going to offer an online music service a blanket license to music, you have to offer it for “all music,” not just some of it, otherwise what you’re offering is not going to be very helpful to the online music service. The problem is that offering a license to “all music” is just plain impossible, at least without an act of Congress like that which produced SoundExchange.
With this insight, naive and idealistic notions such as charging all ISP subscribers a monthly “music tax” that gets (somehow) distributed to rights holders go straight out the window. This is where we finally get back to Jim Griffin: blanket-licensing schemes such as Choruss, the business that Jim Griffin ran for Warner Music Group, are revealed to be the impossibilities they are.
Griffin, a battle-scarred veteran of the early days of digital music, had been an articulate blanket-licensing ideologue for years when WMG CEO Edgar Bronfman asked him to set up a blanket licensing business, which they called Choruss. Choruss failed about a year ago; as I explained at that time, the primary reason for its failure was that it couldn’t get licenses to anywhere near “all music.”
So Griffin has acknowledged the impossibility and moved on. He has turned his attention to an underlying problem that is even more complex and fundamental: the lack of a global registry of all music rights information that would be required to support any kind of comprehensive and fair licensing scheme. At the FMC Policy Summit, Griffin was on a panel on music rights data; he was talking about the International Music Registry (IMR), a project led by the World Intellectual Property Organization (WIPO). Griffin is one of over two dozen people from around the world working on the IMR.
IMR is adopting a federated approach to rights registries that acknowledges and leverages the existences of various “island” registries throughout the world and attempts to build a unifying layer on top of them. (One of these “islands” is the so-called Global Repertoire Database, which is initially focused on Europe.) This approach is analogous to the Digital Object Identifier (DOI) standard that I helped define in the publishing industry in the late 1990s: we wanted a copyright work identifier and registry that could coexist peacefully with various existing standards and registries such as ISBN for books, ISSN for journals, PII for other journals, URL for online resources, and so on. On the other hand, it differs from the Book Rights Registry contemplated in Google’s settlement with book publishers and authors, which would have been a single über-registry for all book content, at least in the United States.
So that’s a long way of explaining what Jim Griffin was doing on the music registry panel instead of the blanket licensing panel at the FMC Policy Summit, and why that’s important. The rights registry problem is the right (no pun intended) one to be working on. If it can be solved, it would get us away from blunt-instrument schemes that encourage systemic abuses and favor big-name artists over the long tail, and it would facilitate content creators actually getting paid according to how much their music is played. It’s a problem that’s worth the monumental effort it will take to solve… if it’s even solvable at all. It will take years to find out one way or another, but it’s worth the journey.
HP Snapfish Goes into Stock Image Business May 30, 2011
Posted by Bill Rosenblatt in Images, Rights Licensing, Services.5 comments
Last week HP and LicenseStream, a startup formerly known as ImageSpan, launched Snapfish Stock Images, a stock image service integrated with HP’s Snapfish image sharing site. LicenseStream handles rights management, royalty compensation, and unauthorized use detection for professional and amateur photographers who wish to upload and monetize their images on the site.
The wall between the major photo-sharing sites and online stock image agencies has been breached. This is a watershed moment in the evolution of the digital image market, and potentially the beginning of a breakthrough for photographers who are despairing of dwindling opportunities for monetizing their content.
Snapfish and LicenseStream’s scheme for uploading and monetizing images is analogous to Scribd‘s scheme for monetizing documents. You can upload images and decide whether you want to charge for them or give them away. If you want to charge, you get a percentage of the purchase price that is considerably higher than what you would get with a traditional stock image agency like Getty Images or Corbis. It will no longer be necessary for photographers to upload images to photo-sharing sites merely in hopes of getting promotional exposure so that maybe someday an image buyer will go over to Getty or Corbis to license their work for money.
At the heart of this service is LicenseStream’s scheme for license management, royalty compensation, rights management, and detection of unauthorized uses. LicenseStream uses Digimarc’s image watermarking technology to embed watermarks in images so it can detect them on the Internet. LicenseStream alerts the content licensor when it finds unauthorized uses of content and provides a choice of actions, such as offering a license, assertion of copyrights, or allowing the usage.
Services like this exist today for text content from Attributor and iCopyright; one difference with LicenseStream is that it uses watermarking instead of the pattern-matching schemes, akin to fingerprinting for audiovisual content types, that Attributor and iCopyright use. Other vendors like PicScout do the usage tracking but not the license management.
The advantage of watermarking over fingerprinting is that it is guaranteed to be accurate in identifying images, whereas fingerprinting is ultimately an “educated guess.” The disadvantage of watermarking is that the watermark has to be inserted into the content before it’s published. But LicenseStream’s integration with Snapfish makes that straightforward; the content can be watermarked as part of the upload process. LicenseStream is in the process of expanding its solution to work with other types of content, which would mean integrating content identification technologies for those other content types.
Getty and Corbis became a de facto duopoly over the past few years as the online stock image market began to shrivel up. The tipping point came in 2008 when Getty acquired JupiterImages from Jupitermedia, itself a rollup of over a dozen small online stock image sites. The only other stock image sites are small boutiques that cater to special interests.
HP’s move is at once a democratization of the stock image industry and a potential blow to the duopoly that currently runs it. It’s also an admission by one of the major image-sharing sites not only that there is money to be made from the millions of images that flow through it daily but that it’s the right thing to do for content creators.
It is refreshing to see one of the big three image-sharing services finally step into the world of paid content. It doesn’t detract from the experience of everyday users sharing personal images, and it should raise the overall quality of images on the site, thereby giving Snapfish a competitive advantage. Why haven’t any of the big image-sharing sites done this before? The technology to do so has existed for years. It has to be a sign that the tech industry is maturing its attitudes about copyright and paying content creators.
So how about it, Picasa (Google) and Flickr (Yahoo)? Will you follow?
Google Book Settlement Rejection: A Missed Opportunity March 30, 2011
Posted by Bill Rosenblatt in Law, Publishing, Rights Licensing, United States.3 comments
U.S. federal judge Denny Chin last week rejected the latest iteration of the settlement agreement between book authors and publishers and Google over Google’s massive-scale scanning and indexing of books. Judge Chin rejected the proposed settlement after having heard from hundreds of parties that objected to it, including members of the author plaintiff class who did not agree with it, academic and public-policy amici curiae, and a coalition of the U.S. Justice Department and Google competitors (Microsoft, Amazon) organized by the prominent antitrust attorney Gary Reback.
The objections to which Judge Chin responded in his opinion focused on areas like Google’s de facto monopoly over the online availability of certain types of works, particularly so-called orphan works whose copyright owners are not in evidence, and the “blessing” that settlement approval would confer on steps that Google took without permission, such as scanning books and making snippets of their texts available online. But the broadest objection that Judge Chin seized on was that the settlement’s structure has such fundamental impact on copyright that it should not be the product of litigation among private parties; it is more properly the domain of Congress.
Large commercial entities such as (in the case of copyright law) major book publishers, record labels, and film studios often bring lawsuits like this one in the first place as a second-best alternative to pushing for legislation. It’s generally more expensive, time-consuming, and risky to litigate than to lobby Congress, but if Congress isn’t paying attention, then the legislative route is not viable.
A prominent example of this is the Supreme Court’s 2005 Grokster decision on file-sharing, which was the result of litigation that music companies instigated when it became clear that Congress wouldn’t enact a bill called the INDUCE Act of 2004. The outcome of Grokster ended up being similar to the INDUCE Act: it established a new class of secondary copyright infringement liability for someone who “induces” people to infringe copyright, in the same manner that someone can induce people to infringe a patent by marketing and profiting from some technology that makes it easy to do so. (The inducement principle for patents is long-established law.)
More recently, Viacom’s huge litigation against Google over YouTube is an attempt to increase network operators’ responsibility to act as “copyright police” over their own services beyond the notice-and-takedown requirements in the current law (17 USC 512). That case is currently making its way through the appeals process. Viacom would also most likely have preferred legislation over this protracted, expensive, and distracting lawsuit to achieve its ends.
Most of the talk over the rejection of the Google book settlement has focused on the issues that Judge Chin emphasized in his opinion: orphaned works, antitrust, and condoning unauthorized copying after the fact. But disappointingly scant attention has been paid to a feature of the settlement that had the potential to improve the global copyright scene for the digital age in a major way: the establishment of a global Book Rights Registry, which Google would have paid over US $30 Million to build.
Many of the problems in managing digital rights to content could be solved if there were complete, consistent, up-to-date, and easily accessible sources of information about content and rights holders. Private companies have made various attempts to solve this problem over the years; none have succeeded, owing to unrealistic profitability requirements, overly narrow scope, lack of cooperation from rights holders, and other factors.
Governments have been understandably reluctant to try to establish such databases — especially in an age where even registering copyrights is not considered mandatory. But the need is there, and it’s sorely felt. Notwithstanding its source, legality, or ethics, the Book Rights Registry could have been a real solution to this problem — moreover, one that would be paid for, not by taxpayers or even rights holders but by a company for whom the price would amount to a rounding error on its balance sheet.
Furthermore, the Book Rights Registry — now in the public view for at least two years — has become a source of inspiration for similar activity in other sectors of the media industry, such as the Global Repertory Database for music currently being contemplated in Europe. Many highly qualified managers and potential implementers have been lining up to build and run the BRR, thus helping to ensure good design and operations.
Now, with Judge Chin’s rejection of the settlement, the BRR looks like a lost cause. Judge Chin’s opinion suggests that a revised settlement could be approved if it works on the “opt in” instead of “opt out” principle, i.e., it should include only those works whose copyright owners proactively agree to let be included. This may pass various legal sniff tests. But any resulting Book Rights Registry under an opt-in regime would be of highly dubious value to the industry in general; in fact, it would scarcely differ from repositories of licensable material available today, such as Overdrive’s Content Reserve.
The parties to the proposed settlement are now in a daze over what to do next. Sentiment seems to be toward Google lobbying Congress to pass legislation that would make orphan works available to the public. Such legislation has been in the works for at least five years. But Congress’s attention nowadays is taken up with issues such as unemployment, wars, the deficit, and other issues which (let’s face it) are more important to U.S. society. Yet orphan works legislation has always sounded like a no-brainer.
Now that Google has an estimable lobbying presence in Washington, we may find ourselves in a world with orphaned works becoming available to the public and a Book Rights Registry that includes them as well as works with claimed ownership on an opt-in basis. That’s well short of the “castle in the air” rights information database that some of us have been dreaming of… but I suppose it’s better than nothing.
European Music Rights Database Project Issues RFP August 23, 2010
Posted by Bill Rosenblatt in Europe, Rights Licensing.2 comments
A request for proposals (RFP) has been issued for a Global Repertoire Database (GRD), which would contain rights holder information for music to be licensed throughout the European Union. Submissions are due in mid-October, and the GRD Working Group expects to make a decision on how to move forward by December.
Let’s fill in some of the background details to give this news some context; then we’ll talk about the GRD and its RFP themselves.
A few years ago, the European Commission (EC) determined that the lack of pan-European (or “single market”) music licensing was hurting European citizens’ access to legitimate online music services and causing more Europeans to turn to illegitimate sources for their digital music. And indeed, the bureaucratic hurdles required to get licenses to distribute music in all countries of the EU are monumental.
Yet the EC’s push for pan-European licensing has met with stiff resistance from member states, mainly for two reasons: fear that such an initiative would only serve to make it easier for US-based media giants to cram their commercial content down Europeans’ throats, and the Culture Ministries of certain EU member states’ belief that it is their duty to advance their own countries’ content and not to make it easier to license content in from other member states.
Meanwhile, the voices being heard in Brussels were those of lobbyists from large technology companies like Apple and Google and the entrenched national music rights collecting societies, such as GEMA in Germany, SACEM in France, PRS for Music in the UK, and so on. Entrepreneurial startups trying to build attractive legal music services throughout Europe weren’t represented in these debates.
The subject of pan-European music licensing fell somewhere among three EC Directorates: Information Society and Media (then Viviane Reding), Internal Market (then Charlie McCreevy), and Competition (then Neelie Kroes). Commissioner Kroes, with her reputation as a tough-minded enforcer of antitrust law against the likes of Microsoft, was able to convene an Online Commerce Working Group in 2008 that brought together stakeholders from across the spectrum. This led to a statement in October of last year in which a group of music publishers and collecting societies essentially promised to maybe someday consider the prospect of possibly working out the parameters of the shape that a potential solution might perhaps take.
Yet in the spring of this year, progress finally began to accelerate. The GRD was conceived, a Working Group was formed, and the group issued a Request for Information (RFI) from companies that would consider submitting proposals to design and build the GRD. Over 30 organizations submitted responses, convincing the Working Group that the GRD could be at least technically feasible. Meanwhile, the EU launched the Digital Agenda for Europe and put Kroes in charge of it. The “digital single market” topped the list of her objectives.
The GRD is a fine idea in concept. Although the idea of a universally accessible database of rights holder information has been a dream for many in the content industries for a long time, the inspiration for the GRD is clearly the Book Rights Registry (BRR) defined in the pending settlement between the book publishing industry and Google. However, there are two major differences between the GRD and the BRR.
First is participation. The GRD Working Group has some of the right players: online retailers (Amazon, Apple iTunes, Nokia), music publishers (EMI, Universal), and collecting societies (PRS for Music, SACEM, and STIM of Sweden) are involved. But conspicuous in their absence from the Working Group are other major collecting societies (particularly GEMA of Germany), the two other major music publishers (Sony/ATV and Warner/Chappell), and any of the new breed of online music startups looking to launch throughout Europe (Spotify, Pandora, and various others). The lack of participation by network operators like Vodafone, Telefonica, and Deutsche Telekom is also problematic. In contrast, the major stakeholders in the US book industry agree in principle on the BRR, even if they may disagree on some terms of the lawsuit settlement itself.
The second problem is that whereas Google is agreeing to spend over US $30 Million to fund the BRR, there is no source of money to build the GRD. In fact, the RFP asks respondents to submit proposals in the knowledge that the project might not be funded and that the Working Group would not consider funding options until after choosing a winning proposal.
Both of these are serious hurdles to surmount. Lack of participation from major players has killed many a well-intentioned standardization initiative. The RFP addresses the “unfunded mandate” issue by suggesting three options for funding: divert money from systems that would no longer be needed with the GRD in place; get a collecting society to run the GRD with existing technology and processes, thereby greatly reducing the costs; or allowing some other entity to run it as a commercial enterprise. More on this later.
The RFP itself is comprehensive, well informed, and well organized. Just as importantly, it is unflinchingly (and refreshingly) realistic. It is forthright about the challenges inherent in launching the GRD: not only the usual technical ones but also problems with the inconsistency and incompleteness of data coming from content rights holders, disputes over ownership, lack of participation by key stakeholders, and so on. It incorporates standards for identifiers and other things in the music industry (ISWC, ISRC, and so on) but acknowledges their current lack of universality at record labels and music publishers. The RFP is also clear about the GRD’s limitations: the GRD is meant to be a source of information about rights ownership, not an e-commerce engine.
The one problem with the conception of the GRD is that it is essentially a recipe for paving the existing cowpaths. On the one hand, it’s necessary to do this, and it would produce significant efficiencies. But on the other hand, it falls short for those who would launch new business models that don’t conform to existing licensing rules. The Google book settlement at least makes mention of new business models, admittedly without saying much about how (or if) the BRR would support them. But even if the GRD is built, entrepreneurs with new ideas will still have to negotiate separately with each of the collecting societies and other rights holders in Europe. (I’m involved in one such negotiation now, one that the existence of the GRD would probably not help.)
Yet even cowpath-paving is a major undertaking, as anyone who reads the GRD RFP will understand. It’s likely that many major technology companies and professional services firms will want to respond, if only for the visibility they would get through the process. However, one of those firms actually building the GRD doesn’t strike me as a likely outcome, because of the dubious commercial proposition. Instead, I suspect that if the GRD gets built at all, one of the major collecting societies will get the job — after sufficient conciliatory representations about cooperation and non-competition, perhaps with oversight by CISAC (the international collecting society umbrella organization).
A precedent for this is the Digital Object Identifier (DOI) standard in publishing. After it became clear that money wasn’t available to hire an outsider to run the initiative, it was given to someone from one of the major scientific publishers (Elsevier Science, as it was then called), which agreed to keep him on salary while he did the job, and while the other publishers involved in the initiative agreed to overlook competitive concerns. As a result, the DOI’s only real impact has been in scientific journal publishing.
Another precedent exists in the US, where the Copyright Clearance Center, the collecting society for text-oriented works, operates RightsLink, the closest thing there is to an online-accessible repository of rights holder information for that type of content. RightsLink is a valuable and successful service, but it only offers “lowest common denominator” rights; anyone wishing to license content on a different basis has to go talk to individual publishers.
All this shows the long journey that the European music industry must take to make their territory more hospitable to the services that are attempting to launch throughout the EU. The GRD is an important step along the way, but the challenges in getting it off the ground are more than enough to think about for the time being.
Webinar on Rights Information Management July 2, 2010
Posted by Bill Rosenblatt in Events, Rights Licensing.add a comment
I will be giving a webinar on Wednesday July 7 on the subject of rights information management. That’s the name I give to the task that media companies have of internally organizing the rights they have to their content, the obligations they have to other rights holders when they distribute the content, and the rights they can provide to third parties, such as other content owners.
This is the part of the iceberg of rights management that sits below the water line. Think about a company like MTV, which uses material from record companies and musical artists that it doesn’t originate or own. Or a textbook publisher, which may use photos, illustrations, tables, quotations from other sources, including other publishers, freelancers, and stock agencies.
Historically, media companies have treated these tasks as clerical overhead. Yet there are opportunities to use rights information management strategically as a source of revenue and brand extension while also making the processes more efficient. I’ve worked with various clients on this, and it’s what I’m going to talk about on the webinar.
The webinar is presented by Earley and Associates, a consulting firm whose primary expertise is in areas such as taxonomy and search, and with whom I’ve had the pleasure of working on various projects. It’s part of their monthly Community of Practice series, which covers a wide range of related topics.
The webinar has a nominal fee for attending, but if you email me, I’ll send you a discount code that gets you in for free.
MOG Mashes Up On-Demand and Radio December 6, 2009
Posted by Bill Rosenblatt in Business models, Music, Rights Licensing, Services, United States.add a comment
In the beginning, there were music downloads. Online music retailers got the rights to offer them by licensing them from record companies, which treated them much like physical music products such as CDs. Then there was web radio, which included online simulcasts of terrestrial broadcast signals. Web radio sites (at least those in the United States) got licenses to music according to rules set up decades ago by the government, which require all music to be licensed for radio play.
Then came music streaming services that looked and felt like web radio but which users could customize to their tastes. To keep them in the radio licensing realm, the music industry imposed constraints such as prohibiting “lookahead” (displaying the titles of tracks to be played in the future) and limiting the number of songs by a given artist that could be played in a row.
Oh, and there was also on-demand streaming, where service providers had to get licenses from record companies, but the licenses were simpler than those required for downloads.
Now there’s MOG All Access, a new music service that launched last week. MOG’s chief innovation is that it intermingles – or, to use the in-vogue term, mashes up — on-demand streaming (a la Rhapsody, Napster, and Spotify) with customized web ratio (a la Pandora, Slacker, and Last.fm). MOG’s ideas for new flexibility in online music are clever and innovative; unfortunately, because of the music industry’s legacy licensing regimes, they end up coming across as a confusing mess.
With MOG All Access, US and Canadian users can pay $5 per month to get on-demand streaming that’s similar to Spotify Premium, or to Rhapsody without the portable device transfer capabilities. When you select an album to play, MOG will play the songs on the album and follow them with a “custom radio station” based on the album or artist just played — thus extending your music experience in a natural way.
You see the “custom radio” songs added to your MOG playlist. Your natural inclination is to skip ahead to a song you particularly want to hear. But unless that song happens to be licensed for on-demand streaming, surprise! You can’t play it. Similarly, if you call up an artist page on MOG and click on “albums,” you get a list of albums by that artist — some of which will be grayed out because they aren’t available for on-demand listening.
Kudos to MOG for trying something interesting and new (and MOG has plenty of other noteworthy and unrelated features), but all this does is point out the increasing obsolescence of music licensing regimes used in the United States and many other geographies. Criticism has been levied at subscription on-demand streaming sites for being too hard for consumers to comprehend, because they are neither fish (record stores) nor fowl (radio). If that’s really the case, then MOG’s mashups become biological impossibilities from alien planets.
Every time I try to explain to lay people the nuances among mechanical and performance rights, publishing and recording, statutory and compulsory licenses, and so on, their eyes glaze over and they either fall into a trance or try desperately to change the subject. Is it just me?
Microsoft’s Search-Indexing Bribe to News Corp. November 24, 2009
Posted by Bill Rosenblatt in Publishing, Rights Licensing, Standards.1 comment so far
News publishers would like to eliminate what they see as “free riding” that the major Internet search engines do on their content. The search engines index the content, make it available in search results, and monetize the traffic through ads and various other ways. Users go to search engines for their news and don’t visit the news publishers’ sites (or those of the publishers’ syndication partners), thereby depriving publishers of traffic and revenue.
Back in 2007, many news publishers — particularly in Europe — got together to develop a standard called ACAP (Automated Content Access Protocol) that was supposed to solve this problem. It would enable news publishers to specify what rights search engines should have to index their content and display it in search results. The ACAP members tried to get the major search engines — such as Google, Yahoo, and MSN — to implement ACAP, on the grounds that doing so would encourage more news publishers to make their content available to search engines.
Fast forward to November 2009 and the depressing revelation that Microsoft is in negotiations with Rupert Murdoch’s News Corp. to pay News Corp. to block Google from indexing its web content. This is perfectly feasible through the Robots Exclusion Protocol (REP) technology that ACAP purports to replace.
The problem with ACAP is, and has been, that while it benefits publishers, there is little in it for the search engines. If everyone were to implement ACAP, the search engines would get additional content to index that amounts to a minute, minuscule increment to the oceans of content that they already index — and a somewhat less minute incremental amount of monetizable traffic, on the theory that name-brand news content is more popular than average.
In other words, the economic benefits of ACAP are not equitable; the standard is not a win-win for all participants. So it’s little wonder that the elegantly-designed ACAP has been languishing; the list of ACAP participants is even no longer available on the ACAP website.
News Corp. was an early participant in ACAP through its subsidiary News Ltd. Australia. But now it is circumventing a fair resolution of the free-riding question by taking advantage of Microsoft’s hunger to promote its new Bing search engine against Google.
News Corp. may rightly claim that it does benefit from having Google index its content for discovery through search, and therefore that it needs to be compensated for the loss of traffic it would incur from being excluded from the world’s most popular search engine. But that, as we say in the technology biz, is not a scalable solution.
A proliferation of such deals will only lead to a world of confusion for users that gets even more confusing as the economics shift over time. Throwing money at the free-riding problem brings it no closer to a solution.
DRM Resarch: Alive and Well and Living near the Rhine September 23, 2009
Posted by Bill Rosenblatt in DRM, Europe, Music, Rights Licensing, Standards, Technologies.add a comment
At the Federal Trade Commission’s hearings on DRM back in February, I got into a discussion with Alex Halderman, formerly a student of Ed Felten in Princeton, now a tenure-track researcher at the University of Michigan. I asked Dr. Halderman why academic research on DRM has dwindled to a virtual halt, at least in the United States.
Specifically, I wanted to know whether he believed that security researchers were scared away from the field after the RIAA threatened his mentor Felten with a lawsuit over Felten’s own threat to publish a paper on how his team hacked the supposedly secure SDMI watermark. The ever-genial Halderman replied, “No, I think we are moving away from DRM research because many of us feel that most of the interesting problems have already been solved.”
Alex, if you’re reading this, pardon my skepticism. As those who attended the Virtual Goods/ODRL Workshop yesterday in Nancy, France found out, research on rights management is alive and well and living in cities near the Rhine river — which, after all, lent its name to the symmetric encryption algorithm (Rijndael) that became the government standard AES, used in many DRM implementations.
The research papers included an interesting one called Usage Rights Management, which discussed tools that users can use to monitor the licensing terms of their own files in a simple, color-coded way, without actually protecting files or restricting them from playing. The so-called URM scheme, from three researchers at the University of Koblenz, is intended to confer benefits on the user, such as proof of purchase of legitimate files when the user is accused of piracy. This scheme could also be an interesting fit with the FTC’s quest to find a DRM labelling standard.
Another interesting talk at this conference described a way of using the ODRL rights expression language to achieve interoperability among social networks’ usage rights policies. This paper was given by Renato Iannella, one of the founders of ODRL.
My own keynote speech centered on an analysis of how well DRM is faring according to the four criteria discussed in Lawrence Lessig’s book Code: And Other Laws of Cyberspace – namely Architecture (technology), Norms (behaviors), Law, and Market (economics). There are plenty of shortcomings with respect to each of these criteria, but also a few success stories that buck the theories.
AP Pushes Ahead with Rights Microformat July 27, 2009
Posted by Bill Rosenblatt in Fingerprinting, Rights Licensing, Standards.4 comments
Details are emerging about the scheme that the Associated Press, the world’s largest newsgathering organization, announced back in April to protect its content and crack down on “free riders” that use it without permission. Last Thursday, the AP’s board approved a plan to integrate a set of technologies to address the problem, including a set of metatags or “microformat” called hNews and Attributor’s text fingerprinting.
The AP developed its microformat in house as a means of accomplishing two things: providing standard metadata to search engines to help them improve search results, and specifying rights. HNews is based on the microformat hAtom. One of its components is a rights expression language called hRights, which in turn is based on ccREL, the Creative Commons Rights Expression Language. CcREL is able to express Creative Commons terms such as required attribution as well as extended commercial licensing terms.
The AP is building a news registry around the microformat, and it hopes that some of its affiliates will use the news registry to facilitate discovery and tracking of their content as well. It claims that the effort is complementary to other standards efforts, most notably ACAP.
It’s true that ACAP is designed for a slightly different purpose than hRights. The purpose of ACAP is to indicate rights that search engines have to index content and display it in search results; for example, an ACAP tag set may specify that a search engine can display a snippet of a news story in search results and only for a week after the publication date. In contrast, hRights is a more general-purpose rights expression language.
Nevertheless, I can’t help but feel that the AP’s impressive effort will eclipse ACAP. The main reason is that hNews offers something fundamental that ACAP doesn’t: an incentive for search engines to adopt it. The standard metadata in the microformat is an actual benefit to search engines, and Google has expressed interest — at least in theory.
There are other reasons why hNews should eclipse ACAP. One is that hNews is built on technology with ties to Creative Commons, which could make it applicable to a flood of user-generated content from sites like Flickr. Another is that news publishers can only support a limited number of metatag sets on their content, and hNews/hRights is more general-purpose than ACAP.
The hNews microformat will contain what the AP calls a “beacon,” which a web-crawler will use to find its content throughout the web and flag unauthorized uses. The AP has not yet said what steps it will take when it finds free riders or how it intends to allow for potential fair uses.
Of course, this scheme doesn’t actually protect content; it only attaches searchable metadata to it — metadata that a determined free rider can easily strip off. That’s where Attributor comes in. Attributor’s technology uses “text fingerprinting,” or sophisticated pattern matching, to find instances of its customers’ content throughout the web and flag it in similar ways. The AP was one of Attributor’s original customers; Reuters is also an Attributor user.
The AP intends to launch the news registry and hNews technologies in phases over the coming year. It is offering the technology as an open standard and has gotten the endorsement of the Media Standards Trust, a UK-based nonprofit organization for advancing the cause of journalism.
If the AP can launch this scheme successfully over the coming year, it should easily emerge as the publishing industry’s preferred approach to online rights management. It has all the right pieces in place, including technology that is built on open standards, is designed to solve practical problems rather than boil the ocean, and has incentives for almost every legitimate entity that wants to participate.
Bill Rosenblatt
Azita Arvani
Bill Jones
Niels Thorwirth
