No surprise to those of us who have been calling “bullshit” all along, but what’s really interesting is why they’ve made the study. According to Ars:

It’s all due to the PRO-IP Act, which passed under President Bush and has led President Obama to appoint an Intellectual Property Enforcement Coordinator within the White House. Part of the IPEC’s duties include gathering data on piracy and counterfeiting, and current IPEC Victoria Espinel is now rounding up that data. The GAO report is part of this process, and it certainly doesn’t make industry estimates look compelling.

Espinel hasn’t said much since her appointment, but what little she has said has pointed to a desire to do her job properly, which may annoy the industry trade organizations who urged the Senate to appoint her. Espinel came out of the USTR, and many expected her to follow the same old line that Susan Schwabbe and Ron Kirk have been following, namely: “copying is bad, mmmkay?”. However, Gigi Sohn of Public Knowledge was one of the first on the ‘open’ side of the debate to declare support for Espinel saying “We believe she will be fair in her approach to intellectual property enforcement issues.”

It’s important to distinguish, however, between the GAO’s report and Espinel’s ultimate decision. The GAO report is only one of the inputs for Espinel to consider, and I have no doubt that industry spin-meisters are working hard to counter its implications, as I type. But it is a significant data point, as the GAO is an arm of Congress, not the Executive, and their reports carry a lot of weight with lawmakers in the US.

It’s also worth remembering that the GAO accepts that piracy and counterfeiting are real and “sizable” problems, but their assertion that the accepted figures, the studies leading to those figures and even the base data that fed into the studies are all flawed is a huge admission from any branch of the US government, and a big boost to those of us who have been arguing this for what feels like forever.

What would be interesting to do, if I had the time, would be to go through official pronouncements and Congressional records to find out where these bogus studies have been cited, and determine what policies became law because of them (I suspect the PRO-IP Act would be one of them) and how much has been spent on the basis of them.

I’ll await Espinel’s final report with interest.

• Nat Torkington
• Michael Geist
• Jamie Love
• Cory Doctorow

One thing that stands out, as Nat notes, is that the reported New Zealand positions are much more realistic and reasonable than MED’s public utterances would have lead us to anticipate. That’s great, but we’re only one voice at a table we shouldn’t really be sitting around. And I say again, there is nothing in a confidentiality agreement that limits you exposing your own position to your own citizens. If you’ve got nothing to fear…

ACTA is coming!! That’s right, sportsfans! The circus called ACTA is coming to Wellington on 12-16 April this year. In the lead up to that, the Commerce Minister, Simon Power, is calling for submissions “to help set a higher benchmark for the enforcement of intellectual property rights”, so there’s obviously no prejudging going on there ¡  Make your submission by 31 March.

Also, this week, InternetNZ announced that they will be hosting a PublicACTA session on the 10th of April, as a counterpoint to the SecretACTA sessions the Government is hosting. I’ll be at that session and I encourage anyone with a Saturday to spare to be there two.

And lastly, this week, I gave a presentation on ACTA at Ignite!Wellington, focussing on the secrecy, as well as something we haven’t heard too much about – pharmaceuticals. It’s worth noting that at the USTR Special 301 meetings this week counterfeit drugs was very prominent in the committee’s questioning of NGOs.

Have a look at the Ignite! site, as there were some other good sessions (Mike Brown’s zen poem about cycling across America was my favourite) but I’ve embedded the video of my talk below as well, if you just want the ACTA bits. It’s a testing format – 5 minutes, 20 slides changing every 15 seconds – but I enjoyed it and learned heaps for the next one ;-)  Very hard to draw down hours of material into 5 minutes. Might help to think of it as a series of tweets…

There’s another interesting contrast: President Obama’s transparency memo – his first presidential act –  seems to have no impact on the United States Trade Representative, Ambassador Ron Kirk, who still insists that the ACTA negotiations are a matter of “national security”. It’s an interesting sidenote that almost all the other nations involved in ACTA swear they’ve all urged greater transparency in the negotiations, so one is left wondering which country is actually keeping it secret. Lookin’ at you, Barack!

What do we actually know about ACTA? Well, it’s named the Anti-Counterfeiting Trade Agreement, even though there appears to be nothing tradeable involved, and precious little about counterfeiting. It’s happening outside the bounds of the two international agencies specifically set up to do this sort of work – WIPO and the WTO. Why? Because the USTR couldn’t get it’s own way in those fora (having tried both – TRIPS did not deliver all the US wanted in the DMCA, and the WTO nations decided that they had more important things to worry about than the business models of US corporations) so it created a new one – a plurilateral, ‘voluntary’ arrangement where they could make up some rules and you’d have to agree if you want to play. The USTR has admitted that a lot of ACTA is based on the US-South Korea Free Trade Agreement, so anyone who wants an FTA with the US can excpect a requirement to join ACTA (“It’s not just us, you understand – it’s an *international* agreement” – yeah right).

But we are not allowed to see any details of the draft agreement or, if we are, we are not allowed to talk about it. Lawyers are, especially entertainment industry lawyers, but citizens (who are paying for it through taxes and who will be affected by it when it becomes law) are not. Even elected government representatives are not allowed to see the details that subordinate officials are negotiating – in Europe, America, the UK, questions have been asked at high levels, but no answers are forthcoming.

Pressure from individuals like Michael Geist, Jamie Love and myself through our respective freedom of information laws, from Organisations like the EFF, Creative Freedom Foundation, TechLiberty and acta.net.nz, from media commentators like Glyn Moody, Mike Masnick, Colin Jackson and many more, from actual politicians like Tom Watson(UK), Clare Curran(NZ), Jens Holm (Swe) and Senators Leahy, Spector, Sanders, Brown and Wyden(US) have forced some information into the public arena.

We know that:

There are 6 sections to the agreement:

1. Initial Provisions and Definitions;
2. Enforcement of Intellectual Property Rights;
3. International Cooperation;
4. Enforcement Practices;
5. Institutional Arrangements; and
6. Final Provisions.

The Enforcement of Intellectual Property Rights chapter has four sections:

• civil enforcement,
• border measures,
• criminal enforcement, and
• the Internet.

Other than that, we know very little. We get bland bullet point agenda and anodyne reports from the nations involved but nothing of substance, nothing that would reasssure us that the officials actually have our interests at heart, as well as the “copyright industry”.

What we do get are (very occasional) leaks – first, that list above released on Wikileaks, back in 2008 (which was probably the first time most people heard about ACTA), and more recently (via Wikileaks again) a memo from a European Commission bureaucrat commenting on some draft text proposed by the US. (Wikileaks is currently unable to be used as they are cramped for funds – please donate)

Let’s look at that memo. It’s worth quoting the summary in full:

A. GENERAL COMMENT

An overarching issue is the relationship between the US proposal and relevant EU legislation. These particular themes relating to the concepts involved the scope of the proposal and the identification of possible conflicts.

Scope of the proposal

The US proposal mainly deals with copyright, apart from a single reference to trademarks in paragraph 1. Relevant EU legislation is generally broader in scope and this issue will require further clarification from a policy perspective. This clarification concerns paragraphs 2 and 3 as paragraphs 4 to 7 are only applying to copyright.

Concept

The US proposal refers to the “Digital Environment”.

This seems to imply all digital technologies. Digital technologies are not only used in an online environment but also off-line, for example in CDs, DVDs and Blue Ray. However, this chapter has been nicknamed “the internet chapter”. Does is cover both online and offline?

The EU Acquis wording refers to “Information Society Service”.

This concept defined ISS as “services normally provided for remuneration, supplied at a distance, by electronic means and at the individual request of a recipient of services”.

Possible conflicts

1) The US proposal provides for both civil and criminal protection against copyright infringement.

This goes beyond the WIPO treaties and the EU Acquis (Directive 2001/29/EC) (CISD) which refers to “adequate legal protection” without specifying in what this protection would consist of (see 1st comment regarding paragraph 4). Furthermore, the e-Commerce Directive (2000/31/EC) (ECD) applies horizontally across all areas of law which touch upon the provision of information society services, regardless of whether it is a matter of public, private or criminal law. It is not clear how the US proposal interprets this, if at all. For example, paragraph 3.a. is limited to civil remedies only.

2) EU may wish to review the potential implications, if any, with the recently adopted Consumers Rights Directive, which is part of revised Regulatory Framework for Electronic Communications (Telecom Package).”

Right off the bat, we can see that there are inconsistencies between what the US wants and what the negotiators appear to have been talking about. The commentary points out the inconsistency with existing EU understanding, practice and law, and points to potential conflicts between ACTA, as proposed, and EU practice.

Sorry? They’ve been talking about this for 2 years and they still don’t understand what THEY mean by “digital environment”?? But we do get the point that “The US proposal mainly deals with copyright”. So why is this still the Anti-Counterfeit Trade Agreement?

I was going to go through the document point by point, but this entry is already long. It’s worth doing and I will soon, but right now I’d like to focus on a few things:

• The document is 7 pages long.
• It disects a proposal document that is probably longer, but is broken up into 7 sections.
• It comments on each section, in detail.

I don’t know how many bureaucrats are reading this but, let me tell you, my old grey ears were hearing alarms right at that point. If there’s disatisfaction with every section of a document, because of first principles, it’s time to send it back to be rethought. Instead, the EU commentary is attempting to wordsmith it into acceptability.

The sections (paragraphs in govtspeak) are:

• Paragraph 1:  General Obligations
• Paragraph 2:  third party liability for copyright infringements.
• Paragraph 3:  circumstances under which third party liability may be limited.
• Paragraph 4:  Technical Measures.
• Paragraph 5:  independent civil and criminal enforcement
• Paragraph 6:  Rights’ Management.
• Paragraph 7:  limitations of Right’s management

Without the text of the proposal, it’s difficult to really determine what the commentary is actually refering to but a few quotes stand out.

Re Para 1

However, unlike these latter provisions, the proposal does not state that the procedures etc. also shall be fair, equitable and/or proportionate in relation to, for example, an alleged infringer. Against this background, it appears like the proposed paragraph is not coherent with TRIPs and IPRED

Re Para 2

EU understands this paragraph and accompanying footnotes as providing for an international minimum harmonization regarding the issue of what is called in some Member States “contributory copyright infringement”. This concept does not exist in the current Acquis communautaire and in the law of several Member States

Re Para 3

The aim of paragraph 3(b) is to establish a system that can be considered to make the exemptions from liability subject to specific conditions: notice-and-take down procedure to address the unauthorized storage or transmission of materials protected by copyright or related rights. Such an obligation is currently not found in the ECD.

Re Para 4

It is not clear if the scope of the provision covers only phonogram author rights and neighbouring rights (performers, producers) or do the definition of ‚”author” also includes film, audio, literature.

Re Para 5

Footnote 8 seems to govern “interoperability” issues, i.e. the ability of consumers to play, for example, music which they have downloaded legally, on different players such as an iPhone or a Microsoft Media Player. The footnote seems to be intended to make sure that contracting Parties do not require that such interoperability must be achievable.

We’re talking about some new law here, to achieve this “harmonization’ ACTA seeks. Things that aren’t illegal now in most countries (including the US) will become illegal “in order to fit with our international obligations”.

The US tried this with TRIPS in order to fuel the DMCA through Congress in its original form and fell at that hurdle. The international community said ‘woah, nelly, this far and no further!” and some of the more draconian measures (like ‘graduated response’) had to be dropped. This is them trying it again.

We’re talking about major changes that will hobble innovation and tie us to decaying business models that actually only benefit a very few corporations. How do artists, musicians and authors get any benefit out of this, when they’re already struggling with their respective industries to make a buck? It’s not piracy that’s taking your money, people – it’s the contracts you signed with your publishers.

Although ACTA had its origins with Big Pharma and Big Agribusiness, the copyright industry has leapt on it holus-bolus. They’re the shock troops now, taking the heat, but my money is on the pharmaceutical and agribusiness lobbies still being heavily involved. While we are rightly concerned about what is in the “Internet chapter”, I really want to read the rest of it, where the rules against generic drugs and patent-free seeds will be. That has the capacity to be just as important and we should not lose sight of that in our desire to keep information free.

The process used to get to the end point is just as important in democracy as the result achieved, often moreso. An open, uncorrupt and objective process is the only way to gain any sort of result that benefits all parties. ACTA, so far as we can see, is only going to benefit the corporations, and that’s why, in my opinion, they’re keeping it hidden.

Secretary Clinton said:

“The final freedom, one that was probably inherent in what both President and Mrs. Roosevelt thought about and wrote about all those years ago, is one that flows from the four I’ve already mentioned: the freedom to connect — the idea that governments should not prevent people from connecting to the internet, to websites, or to each other. The freedom to connect is like the freedom of assembly, only in cyberspace. It allows individuals to get online, come together, and hopefully cooperate. Once you’re on the Internet, you don’t need to be a tycoon or a rock star to have a huge impact on society.”

What we need to see now is the implementation of those high ideals, not more restrictions. The reality has to match the rhetoric. It’s way past time to open the shutters on the ACTA process. To the participating governments, if you’ve got nothing to hide, why are you hiding something?

PS You can sign an international petition for more openness in the ACTA process at http://a2knetwork.org/joint-declaration-acta

So what happened to drag me away from the keyboard?

• I got a dog (using the same rule as cats – see other blog)
• I helped run a BarCamp on Open Government
• I did a couple of other projects that I can’t link to or talk too much about
• I had bronchitis (been a pretty crappy winter all around, health-wise)
• I was accepted as an exhibitor in the Kapiti Arts Trail this weekend (#91)
• (I’m sure there was some other stuff)
• Oh yeah, I signed up on Twitter.

That last is the big one, really, as it chews up the most time. I have barely looked at RSS since April, and have only made one post to my family blog. It’s really quite fascinating to me (10K tweets later) and not a little frightening. I’m following most of the people I used to use RSS for, but now it’s in real time.

So, what’s hauled me back to the keyboard? ACTA – the Anti-Counterfeiting Trade Agreement – you may remember that I’ve blogged on this before. Well, it’s just entered its next round, in Korea, that well-known home of freedom and civil liberties (and the first country in the world to pass a 3 strikes law and implement it).

So, wassup with ACTA? For background, I’d like to point you to a recording of me discussing ACTA with Kim Hill on National Radio recently. Very pleased with the event and it’s now very timely, as ACTA has reared up again.

Those playing at home will remember that I’ve discussed the “intellectual property” aspect of ACTA before, and the fact that it’s being negotiated so secretly, more secretly than any other “trade treaty”. Long time players will also note that, in my submission to MED in June last year, I said (in para 17):

Further, the scarce official information available about ACTA would appear to indicate that it was intended to harmonize the enforcement of existing IPRs. However, the only current approach to a harmonized global concept of IP is occurring through WIPO, and ACTA appears to seek to operate independently of WIPO. There seems to be a fatal disconnect here – how can you harmonize enforcement if you don’t first harmonize the definition of infringements?

So now they’re seriously talking about this area and how they want to do it.

Michael Geist has broken the story and Cory Doctorow has broached it to the BoingBoing community. Neither of them appear to have actual text, but quote sources who say the draft text is modelled on the US-South Korea free trade agreement.

Geist outlines five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).  Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.
5. Rights Management provisions, also modeled on U.S. free trade treaty language

Doctorow’s language is a little blunter – he notes that ISPs will have to proactively police copyright on user-contributed material, that ISPs will have to cut off Internet access of accused copyright infringers or face liability, that the whole world must adopt US style notice-and-takedown rules without evidence of infringing copyright, and that there will be mandatory prohibitions on breaking DRM.

We can’t confirm or deny what is in the actual draft because we don’t have a copy. The US administration wrote this chapter of the draft but is still regarding ACTA as a matter of national security. They recently let 42 individuals see a draft text, but only 4 were from what we regard as “civil society”. The rest were big corporates. This, the Obama Administration calls “transparency” and consultation. To be fair, Bush’s administration was worse, but this is not what we expect from a leader who campaigned on “change”, “hope” and “yes, we can”.

The New Zealand government is no better. Our officials say:

The countries participating in the development of ACTA have agreed that general information about ACTA’s objectives and the negotiating process should be made public. In that regard, MED has provided a range of relevant information about ACTA on its website. However, ACTA participants have also agreed that information relating to formal negotiating positions of governments should be protected, as is the standard practice in international treaty negotiations. It is in this context that we are unable to reiease many of the items you request.

First point – it is not the standard practice – the WTO Doha Round, the Free Trade Area of the Americas, World Health Organisation, WIPO – all publish the texts and proceedings as they go.

Secondly, the material published by all nations, including the Ministry of Economic Development is contextless spin, rather than substantive reporting of negotiations. “General information” is a kind way of putting it – “We’re doing something that will affect all of you but we’re not going to tell you until we’ve done it” is more accurate.

What is hardest to understand is how the governments involved – United States, Switzerland, Japan, Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates, Canada and the European Union – can justify this secrecy in the face of domestic freedom of information laws, pledges of transparency and even the concept of democracy – government of the people, for the people and by the people.

It’s going to get worse before it gets better, and individual protests are going to be little waves crashing against the rocks of government indifference.  The proponents of this type of action have money, power and the ears of their legislators – we have our spirits, our wills and our need to be free. To make sure that’s enough, we need to join together and use our collective voice. In New Zealand, I recommend the Creative Freedom Foundation, InternetNZ and the NZ Open Source Society, all of whom have expressed their concerns to government previously. Elsewhere the Electronic Frontier Foundation, Knowledge Ecology International, even your local Pirate Party and the like are carrying the flag.

The proponents of ACTA say it’s about protecting the property of the content creators, letting them earn a living, that opponents  want to steal the food from the mouths of artists and their children. They’ve persuaded (or coerced) some artists and writers to speak up in this matter, to plead their cause. But the real blocks to artists, writers and musicians earning their fair share of income are the publishers themselves, with iniquitous contracts, onerous debts and dubious expenses. All the publishers are trying to protect is a dying business model which even now is still earning them billions each year.

Copyright isn’t about property – it’s about knowledge. It’s a social contract between the creator and the receiver (I won’t say “consumer” because knowledge isn’t consumed; it’s shared) and protects both. Publishers have always owned the gate to knowledge. The Internet and digital technology changes that completely. We’re all publishers now.

In a knowledge economy, you’re not buying and selling knowledge, just as you’re not buying and selling cash in a cash economy. In a knowledge economy, knowledge is the currency used to obtain something from the receiver – attention, loyalty, or something else  - something of value to both parties. It’s a different market model from the industrial one we grew up with of few producers, scarce product and many consumers. Product is no longer scarce, nor can it be made artificially so. The old model is broken, yet the old guard is trying to hamstring the new for as long as possible.

Google ACTA, learn what it’s about and what it’s claimed to be about. Wake up your media who are strangely silent on this matter and make them report it, if only to report your protest. Contact your elected representatives and make them aware that you don’t want this, that you won’t stand for it and that you expect them to represent your will, not the will of Hollywood and the recording industry, the pharmaceutical industry and the big broadcasters, who all stand to make more money by locking in our choices in what we can do with information.

Don’t just sit there – DO something!

The appeal should be interesting

(Tip o’the hat to Simon Grigg)

Yesterday, Rob Stowell posted a link to a series of posts on Hypebot about free music, from inside the industry. I recommend reading them for some insight and to form your own opinion before reading on, because I’m about to dissect them. ;-)

I wrote on PAS:

Some of those people are clinging to a false hope. I think Kevin Kelly (surprise) and the guy from INgroove have it sussed, but most of the rest are still talking about “maintaining exclusivity” and using free as a promo.

I’ll stick with Reznor’s view from the clip I posted the other day – as soon as it gets published, someone will rip it and put it online for free. It is not possible to stop that technically. If your business model doesn’t take account of that, you don’t have a viable business model.

And it doesn’t matter whether it’s music, art, literature or photographs; if it can be delivered digitally, someone is going to give it away, whether you want them to or not.

Now that you know that, formulate a business plan that takes it into account. That is the only sustainable way to make money in this environment

Rob came back and quoted Glenn Peoples’ billboard.biz column that headlined this little angst-fest, saying:

There’s a little more in this than “industry people” wanting to (further) feather their nests. It comes back to robbery’s original feelings of misgiving: “free” sounds great, but it’ll have down-stream effects we may not like so much. Personally, I have a very low tolerance for advertising wrapped round my culture.

Which is interesting because that lets out television, radio, newspapers, movies and much of the Internet, including Public Address itself, which all have advertising support for revenue. But I digress. I started to respond on PAS but the post was getting long and convoluted, so I thought I’d put it here instead. Herewith is my analysis of the Hypebot series.

Glenn Peoples doesn’t take a stand in this debate. He’s reporting on the Hypebot series. But his report is pessimistic, to me:

In theory, a company should set price equal to marginal cost. Digital goods on the Internet, though, are not akin to razorblades. In reality, not all digital music can be priced at zero. The information comes with real costs. Even if it feels free (Nokia’s Comes With Music) it’s not free.

Peoples also quotes David Zaslov:

“We don’t want to lose marketshare, but at the same time, we don’t want to encourage free content. Free didn’t work for newspapers. Free didn’t work for the magazines. And it doesn’t work for the broadcast companies. We have to see how it develops. But ultimately, we all have to follow the behavior of the consumer.”

That’s the general flavour I get from the series, apart from the ones outlined below; we don’t want it but we’ll have to give in to part of it, begrudgingly.

Kyle Bylin is actually inarticulate – I’m not really sure which way he’s going.

Virgil Dickerson is positive, but I tried his sampler and a) didn’t warm to the music (personal taste) but b) thought even less of the technological presentation. I think he “gets” free, but he’s struggling to do more than teasers, despite what he says.

Greg Scholl is very begrudging and only sees the teaser aspect:

As for the second type of free music – giving away tracks to sell tracks – we very much believe in the use of free music downloads as a promotional tool, and encourage our clients to give a song away

Really misses the point, for me. He still sees the revenue as driven by the individual song, but the idea that each copy is monetizable (and therefore each download is “stolen” revenue) is what is standing in his way. Maybe he needs some it zen marketing – you’ve got to let go before you can receive.

Bruce Warila is actively hostile:

Now that music is unbundled and selling for copper (pennies), it’s time to fight a new battle. If sharers rob us (rightsholders) of our right to digital exclusivity, which is our right to exclusively launch, release or to maintain an exclusive digital presence, then we are the fools for not insisting otherwise

And let’s remember, he’s an “investor [and] currently acting as their strategy and technology officer” for this Music Xray outfit (still in beta), so he’s not speaking as a songwriter or musician when he’s talking about rightsholders. He goes on:

Your strategy now should be to prepare for the day when a brand offers to buy your exclusivity. Since your songs are your advertisements, your calling card and your audio pheromones, perhaps consider being a bit more mysterious about everything else in your life. Hold back the baby pictures, the studio session videos and the near death experience stories until the exclusive offer shows up in your inbox. After all, if your free music offers don’t get you marketplace traction, the other stuff is just a pile of (fill in the blank).”

That’s just sad, to me. It’s all about commodities. His brand new thing is going to crash and burn because it’s based on an old model – he’s just wrapping it in new paper.

Chris Vinson is sort of positive:

Once you have a fan, it’s a lot easier to ‘upsell’ them on other forms of same music — a $0.99 acoustic version, a CD, a live show, etc. But without that easy first step, there is a big chasm to cross. I think the key is to have a overall strategy, and include ‘free’ as that easy first step.

But this is still missing the point. He’s treating the teaser as a loss leader. It’ll work, up to a point, but compare it with Radiohead giving away the whole damn album. And still being the top seller.

Bruce Iglaur is still in the old mode as well:

At this point, no model for monetizing music (for example, advertising-based free streaming or downloading) other than traditional royalties has proven to fairly pay artists, songwriters or their patrons/financiers (the labels). So, a free track or stream with label and publisher approval? Sure. Distribution of music without label and publisher approval? Nope.

It can’t be stopped, but he continues to cling to a belief that it should be.

Jim Mahoney is even more doom’n'gloom:

Know that if you waive performance or other royalties in exchange for “promotional value” you may be putting the final nail in your coffin (at worst) or allowing others to profit on your music (by building their own business models and taking your audiences and selling advertising or subscriptions) while you make nothing tangible in return (at least).

Completely missing the concept that you might be making money anyway though others may be able to “profit on your music”. He’s fixed on the sales model and anything that interferes with that is wrong.

I’d agree that Kevin Arnold is kinda positive, but wary. He’s still on the promotional kick, though:

Just like the handouts at Costco, tasting at a winery, or swag bags at conventions and parties, labels and artists have long given away music in the form of samplers and promo CDs, free performances, and outlets like radio and MTV. In the digital world this act has value in ways that we’re still learning and consistently surprise us. Who would have thought that the free giveaway of Nine Inch Nails’ last record would end up with it being the top selling album at AmazonMP3 last year?

He’s aware but still not there in understanding. ” Who would have thought that the free giveaway [...] would end up with it being the top selling album [...]?” – that’s the key right there.

Think outside that box, as Reznor and co did, and do. It’s not just promo, it’s a new way of doing business that’s as old as the bible: “Cast your bread upon the waters”(Ecclesiastes 11.1) or “Give, and it will be given to you” (Luke 6:38). That’s not to say I’m turning to a deity to look after copyright – not at all – but the concept is not unlike Karma – what goes around, comes around.

Bruce Houghton‘s little poem is almost right – “free music only has value if it sparks action” except it’s still tying the music to the purchase and so, for me, misses the ultimate point.

I’d have to say that, while I think I agree with Robb McDaniels, he’s a little incoherent. What I get out of his piece is that he understands that value is a malleable concept, and subject to perception. Maybe

Jeff Price gets it:

Free giveaway of music was, and still is, an important part of any marketing and promotion campaign. The change that has occurred is a music fan can now get any song they want for free, not just the ones being authorized. [...] I disagree strongly with the statement that the industry is not profitable – it is. In just one month, bands and digital only labels are generating tens of thousands of dollars,recouping their costs more quickly and making a healthy profit on top. Revenue is being generated from MUSIC SALES in unprecedented amounts allowing labels and artists to have real careers and earn significant annual income.

As does Susan Ferris:

Having a song that is available to the masses for free has proved profitable for us. We have been able to give a taste with out spoiling the dinner. Ultimately the fans have been truly appreciative and in return purchased the whole CD

Watch for Tunecore and Long Live Crime Records to move ahead in the future – understanding is everything in a knowledge economy.

Actually, I’m more hopeful than not, having read those pieces. The ones who get it will be the luminaries of the next decade of music. And the ones who don’t, won’t be around.

His column is published in the Toronto Star and the Ottowa Citizen, but that seems to be as close as the MSM is getting to ACTA. With the Russia Today video I wrote about the other day, even knee-jerk Rethuglicans are asking “Why isn’t the Mainstream Media all over this?”

It’s a really fair question, and one I’ve referred to before, but I’ve yet to see a coherent answer.

So I thought I’d ask:

letters@dompost.co.nz

Dear sir

The Government is negotiating an important intellectual property treaty, the Anti Counterfeiting Trade Agreement, and has been for 12 months, as reported on the Ministry of Economic Development’s page at http://www.med.govt.nz/templates/ContentTopicSummary____34357.aspx. Yet I see no reporting of this in your newspaper, or any of the NZ Fairfax stable. Newspapers in Australia and Canada have been reporting on this but our media have been silent.

May one ask why?

Regards

Mark Harris
Waikanae

I hold no huge hope of useful response, but you have to ask.

UPDATE: my name was included in the “points notes” sidebar. :-(

The wing nuts are raging that Obama is interfering in their lives! Let me quote to you from one of the slightly less foaming:

Yikes! Is there any part of American citizens’ lives that the Obama administration does not want to intrude on? Where is the MSM on this? Can you imagine the outcry if this was coming down the pike under Bush? There would have been weeping and gnashing of teeth! And cries of totalitarianism, which it seems, is coming for us under the cover of night…

The irony that this originated under George Bush seems to escape them.

But they’re right to ask where are the mainstream media? Why haven’t they been all over this for the last 18 months? As I said in a previous post some have, but nowhere near enough.

The irony also is that the wing nuts are getting their information from a Russian blog (and funded by the State, no less). And yet they’re posting with labels like “liberal bias”, “media bias”, and “totalitarianism”. Way to have a rational discussion, guys.

ACTA is hairy and scary, not least because of the secrecy. But Europe is calling for more transparency, as is Canada, and Obama’s White House is reviewing the USTR’s stance of “national security” as I type (well, maybe not as I type as it’s just coming up Sunday morning in Washington DC). What will it take to shift the MED? Probably dynamite.

As bad as s92A was, ACTA is a whole other ball of wax. The media need to be on top of it, but they really are conspicuous by their absence. I don’t want to seem like a conspiracy theorist, but are the big media combines suppressing any reporting of the negotiations? Are there instructions going out to remote bureaus to not cover the issue?

Bloggers are able to get information. You’d think the MSM with their vast resources should be able to get at least that much, if not more. Because the alternative to the paranoia is that the media are just too stupid to recognize a story if it bit them on the arse.

I’ve mentioned Baysting before, with reference to the ‘80% of music downloads are illegal‘ rubbish. Here is an email he sent out today to APRA members:

From: noreply@apra.co.nz
Date: March 17, 2009 12:39:00 PM GMT+13:00
To: [redacted by me]
Subject: The New Copyright Provisions

Members Bulletin

The New Copyright Provisions

The New Copyright Provisions

SONGWRITERS AND THE NEW COPYRIGHT PROVISIONS

“The internet must not become a high-tech Wild West, a lawless zone where outlaws can pillage works with abandon or, worse, trade in them in total impunity.” So said French President Sarkozy in 2007 introducing strict new law around ISPs and disconnection of copyright infringers.

Do you think the new Copyright legislation will protect your future income? Two events from last week will have a significant effect on your business as a songwriter or composer.

One is the progress on the code of practice with ISPs, now in its final stages of negotiation and expected to be adopted by most ISPs this month. The code will define how well your music is protected and whether you can earn money from it in the digital environment.

The other event is the emergence in Britain of a group of high profile songwriters standing up for the rights of creators against ISPs and those who think music should be free. The Featured Artists Coalition includes artists like Radiohead, Annie Lennox, Robbie Williams, Billy Bragg, Soul II Soul etc.* The website is: http://www.featuredartistscoalition.com/

A statement from the FAC released this week says: “Google is hoping to bring to heel the last remaining outpost of resistance to the idea that music on the internet should be free – the creators of that music, the artists themselves. . . we want all artists to have more control of their music.”

This is the same fight we face in NZ. APRA/AMCOS believes that the new copyright provisions will protect the rights of songwriters and composers. But without a reasonable code – which discourages illegal file-sharing – creators will not have an effective digital business model.

This issue is particularly concerning for Maori members who want protection for their Waiata and traditional cultural practices. With no government involvement, there is no guarantee of protection.

This is why we have been in discussions with the Government, asking them to appoint an independent adjudicator or ombudsman who can rule on any future disputes.

Songwriters deserve to be recompensed for their music and for the profits made by the big ISPs like Telecom, Telstra and Vodafone who play a role in illegal file-sharing.

The recently-born Creative Freedom Foundation has been vocal about the code of practice. While their slogan “no guilt by accusation” has received support, the question needs to be asked: who wouldn’t agree to that proposition? A visit to their website suggests a slightly different agenda:http://creativefreedom.org.nz/

Here you’ll see how the Foundation denies the validity of the term “Intellectual Property”, calling it “a misnomer”. They then challenge your legal ownership of your music, stating that any song you create is not a genuine property right. According to the CFF website, your copyright is more like “a temporary monopoly”.

The language on the CFF site is similar to the EFF – the “Electronic Frontier Foundation” who are challenging songwriters’ rights in Britain. The EFF has a mutual relationship with Google, the same ISP whose tactics against songwriters has angered the Featured Artists Coalition.

The entertainment industry typically does well in hard times and it’s simply bad economics for NZ to introduce a weaker Copyright framework. The Intellectual Property sector has an estimated value of 10% of the total value of our economy and is growing every year. We can’t spend our way out of the recession. We have to earn our way to growth, and songwriters and creators want to play their part. Particularly in the international marketplace, NZ music is growing stronger. This growth should not be endangered through laissez-faire policies on copyright.

Last word to Paul McGuinness, Manager of U2:

“ the failure of ISPs to engage in the fight against piracy, to date, has been the single biggest failure in the digital music market.”

Arthur Baysting – NZ Writer/Director, APRA

APRA/AMCOS members’ comments are welcome:ahealey@apra.com.au

*Artists who have signed up to the FAC include … Boilerhouse Boys, Chrissie Hynde, Craig David, David Gilmour, Gang of Four, Iron Maiden, Jazzie B, Jools Holland, Kaiser Chiefs, Kate Nash, Klaxons, Richard Ashcroft, Sia Furler, Stephen Duffy, The Verve, Travis, Wet Wet Wet, White Lies, and many others.

Published by APRA|AMCOS. © APRA|AMCOS 2008.
Freephone: 0800 692 772. Fax (09) 623 2174. Email: nz@apra.com.au.
Web: www.apra.co.nz
Editor: Abbie Rutledge. Any comments? Please email Abbie.

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Please redirect your email to nz@apra.com.au – or call us on 0800 69 2772.
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“The internet must not become a high-tech Wild West”
Well, now we know where John Key got that one, and I’m not suggesting he’s ever read anything by Sarkozy. The “strict new law” referred to is France’s 3 strikes legislation, the big labels’ new weapon of choice, seeing as how suing their customers hasn’t really worked that well for them. That’s the same law that prompted the European Parliament to say “Non”, that Germany and others have rejected but that we have in s92A. I’m more than a little annoyed that our claim to fame is that we beat the French to do something stupid.

“Do you think the new Copyright legislation will protect your future income?”
If it won’t, why has APRA been pushing for it? Hey, nothing like starting with a little Fear Uncertainty and Doubt! (even if you contradict yourself several paras down).

I note that APRA is conspicuous in its absence in making a submission to the TCF draft Code of Practice. Nothing to say there, Arthur? Ant?

“One is the progress on the code of practice with ISPs, now in its final stages of negotiation and expected to be adopted by most ISPs this month.”
Except that, without TelstraClear’s approval, the TCF cannot adopt it as binding, and without TelstraClear’s involvement – well, I guess people will have a new reason to switch ISPs, by which I mean ethical reasons such as supporting the only ISP who’s stood up and been counted.

“But without a reasonable code – which discourages illegal file-sharing – creators will not have an effective digital business model.”
Trent Reznor might disagree with you there. Not saying his is the only business model, but it is one to consider. Mike Masnick gave a presentation at midem earlier in the year about Reznor and NIN’s marketing approach for Ghosts I-IV. Radiohead also comes to mind.

“This is why we have been in discussions with the Government, asking them to appoint an independent adjudicator or ombudsman who can rule on any future disputes.”
This is a very recent development on APRA’s part, and a welcome one. Now if they can just make a couple of more steps towards common sense…

“Here you’ll see how the Foundation denies the validity of the term “Intellectual Property”, calling it “a misnomer”. They then challenge your legal ownership of your music, stating that any song you create is not a genuine property right. According to the CFF website, your copyright is more like “a temporary monopoly”.
Oops no, guess not. I suspect you need to chat to a (non-interested) lawyer, Arthur, because that’s exactly what copyright is, under the law. (PS Chris Hocquard’s ownership of amplifier.co.nz does not, in my opinion, make him “non-interested”. Not questioning his credentials as a lawyer, but he definitely has an interest)

“The EFF has a mutual relationship with Google, the same ISP whose tactics against songwriters has angered the Featured Artists Coalition.”
Say what, now? First point – Google, unless I missed a new release from Google Labs, is not an ISP, mmmkay? They’re a lot of things, and more every day but, even under the new legislation, I don’t think they’re an ISP. They’re a content provider, sure, they host blogs, sure, they host videos via YouTube, sure. But that’s all covered under s92C. The TCF Code is about s92A, as is the protest. There’s stuff wrong with the whole of s92, in my opinion, but that’s a fight for the next round.

Second – that’s a gross misrepresentation of the EFF, which has taken Google on as many times as it’s agreed with them, especially over privacy. The reason the EFF’s definition of copyright is similar to the CFF’s definition is that THAT’S THE LAW, in the US, here and anywhere that’s part of the Berne Convention, or TRIPS.

Thirdly – that’s also a very warped and mistaken view of FAC’s position. They believe that:

• artists should retain ultimate ownership of their music
• all agreements should be fairly conducted and transparently accounted
• rights’ holders should have a fiduciary duty of care to the originator of those rights and must always explain how any agreement may affect how their work is exploited.

In case you missed it, Arthur, it’s the music labels that the FAC holds responsible, not the ISPs. They believe the above will be achieved by:

• changing artists’ approach to agreements
• changing the recorded music and technology companies’ treatment of artist rights and incomes
• up-dating laws to reflect the new music landscape.

and, to do that they will :

• campaign for laws, regulations, business practices and policies that protect artists’ rights.
• We will stand up for all artists by engaging with government, music and technology companies, and collection societies. We will argue for fair play and will expose unfair practices.

Billy Bragg’s a-comin’ for ye, Arthur! Better head for the hills! ;-)

In fact, neither “ISP” nor “Internet Service Provider” appear anywhere on their website. Their beef is not with Google, or ISPs or the EFF – it’s with the music labels, the collecting agencies and the apparatus of the industry that they believe is damaging their business.

“The entertainment industry typically does well in hard times and it’s simply bad economics for NZ to introduce a weaker Copyright framework”
Please point to an example of this, Arthur. What’s that? You can’t find one? That’s because no-one has been suggesting this. No-one.

“Particularly in the international marketplace, NZ music is growing stronger.”
The industry talking heads, (e.g. Healey, Smith, Hocquard) keep saying this stuff and I keep wondering, well what’s the problem, then? Then, in the next breath they will say ‘but the industry is being decimated!’ ZOMG!

By the way, fellas, decimation means “1 in 10 removed”, which is 10%. Just saying.

“Artists who have signed up to the FAC include … Boilerhouse Boys,Chrissie Hynde, Craig David, David Gilmour, Gang of Four, Iron Maiden, Jazzie B, Jools Holland, Kaiser Chiefs, Kate Nash, Klaxons, Richard Ashcroft, Sia Furler, Stephen Duffy, The Verve, Travis, Wet Wet Wet, White Lies, and many others”
Glamour by association, Arthur? I have a feeling that they would not approve of your tying them to your email here. In fact, I’ve asked them in an email, so I’ll let you know what they say.

In summary, this is one of the most invalid messages from the pro-92A camp yet. Swathes of it are wrong, just completely wrong. Let’s be charitable and say that Arthur’s enthusiasm for the cause of artists’ rights has led him to mis-step, conflate matters that have no business being together, issue polemic platitudes (which I’ll grant you is not easy) and overstate the nature of the issue. Still, those he’s paid (I assume the Board members are paid) to represent should really ask themselves how good a job he’s doing.

Or I could just call “bullshit!” on the whole piece. Oh, not quite:

powered by phplist v 2.10.4
They used an open source product to send it. ;-)

Trade agreements are often negotiated under cover of secrecy, so that industry lobbyists can’t focus on details that affect their constituents and derail the process. But, with ACTA, the industry lobbyists appear to be in on the game, privy to the details and offering advice to the negotiating teams. It’s only we poor, tax-paying, voting citizens that aren’t allowed to know anything.

The media isn’t helping. I don’t recall much media comment at all in New Zealand on ACTA, over the last year. A Google search outside official government sites says there are 5180 responses for ACTA, but the first 20 shows blogs (Br3nda Wallace, Colin Jackson, Geekzone and me), InternetNZ and the Distilled Spirits Association (both of whom put in submissions during last year’s “consultation” spurred by the Wikileaks release). The rest of the results are for other uses of the word “acta” (which is Latin for “beach” apparently, but also “register of events”), often for scientific journals. Searching on “Anti-Counterfeiting Trade Agreement” is a little better, but largely the same type of suspects. The mainstream media is conspicuous by it’s absence.

Computerworld has 13 articles, including the latest news that Obama’s administration appears no more transparent than Bush’s was. Stuff has 2, plus 1 more under “ACTA” from the Sydney Morning Herald. The NZ Herald has none. Zero. Not even a Reuters feed.

I want to take a moment to single out 2 reporters, Juha Saarinen and Stephen Bell, who have both educated themselves about this issue and both written about it. But they are generally regarded as tech reporters. Where are the mainstream reporters, the business analysts and economists? When will the NZ media wake up to the fact that this is not a tech issue? The level of omission looks deliberate.

It’s not much better overseas. Michael Geist’s legal column is serialized across a number of Canadian papers, so there’s some coverage there, but most of the message is carried on the blogs and lists, on the tech sites and the magazines like Computerworld (Glyn Moody in the UK has been active) and CNET. And it’s from CNET and Declan McCullagh that the current big story about ACTA comes (although, to be fair, it’s on blogs everywhere, and James Love has his post on the Huffington Post here) : Obama’s administration has invoked Executive Order 12958 to classify the ACTA documents as “classified in the interest of national security”.

What in [insert_deity]‘s name is in there??? How can a document about “harmonizing intellectual property enforcement” be a state secret that could damage national security??

Although, it’s not a secret to everyone. Love has a list of all the people who are allowed to see it. The Fertilizer Institute? Pfizer? Rubber Manufacturers Association??

If the governments negotiating this thing are trying to make people scared and rebellious, they’re doing a heckuva job. At times, I’ve thought that that’s exactly what they’re doing, so that they can bleed out all the “hysteria” (interesting how that term popped up in the s92A contretemps as well) and then say, “see? It’s not nearly as bad as you thought it was”, but I decided that none of the people I know are involved are actually that bright. I could be wrong on that, though. I’m starting to think it really is as bad as we think.

Love also has a list of other sites reporting the story, but there’s no MSM there, either.

[sigh]

“Meet the new boss, same as the old boss…”

I had hoped for better from Obama’s administration, at least in terms of their vaunted transparency policy, but it looks like ACTA is one thing that won’t go on the RSS feeds. Looks like Townsend had it right, at least in the verse. It’s we who need to learn the chorus.