Digital Copyright Canada

Russell,

You're a great writer, you know that? Very well written release. Here's 
the latest edit of "Hearts vs. the Court" (btw I called it that because 
that's the title of a song I'm working on. Oh and another btw: what is 
your address so I can mail you some music??

N.

Hearts vs. The Court
A music industry reality-check.
By Neil Leyton, Fading Ways Music, with the assistance of Russell 
McOrmond, flora.ca.

    Present Problems

 From our perspective as an independent label, the measures of "success" 
that the music industry adopted during the booming economy of the 1980's 
have revealed themselves to be a non-sustainable business model, mid-way 
through the 90s and in the new millennium.  Due to over-inflated 
recording cost, promotional costs and the salaries of their large staff 
and grossly overpaid directors, the major-label business model 
increasingly depends on the public to buy records by the millions, 
placing the emphasis on the sales figures of the week of release - much 
like the film studios' focus on "opening weekend" gross.  As a result, 
the major labels tend to focus on the "next big thing" rather than 
sustaining and developing career artists. It would be almost 
inconceivable for a major to sign a singer/songwriter like Elvis 
Costello in today's business environment, and as a result incredible 
talent falls by the wayside.

With the changed economy, and even with major marketing campaigns, the 
major label releases often don't live up to their sales projections 
these days. So, instead of acknowledging that their business model 
requires certain ideological modifications, the industry has now chosen 
to point the finger at the consumers, aiming to blame them for not 
buying a million records in the week-of-release the way they used to in 
the 80s. Comparatively, in the 70s, when Pink Floyd put out a record, 
50,000 sales in the first week of release was considered a success. The 
recording industry refuses to accept that times have changed, and with 
the arrival of the internet as a new technology for down-loading they 
have found the perfect scapegoat as to why their business model isn't 
doing as well as it used to.

But before we discuss the downloading issue, another related matter also 
needs a brief commentary: Songs. Singles. The North American music 
industry, unlike European labels, did away with the CD-single format 
long ago, at a time when the album format seemed more profitable to 
their accounting. However, many of these industry decision-makers may 
not have  realized that most of their records only contain one or two 
"good" tracks - the radio singles. Why should consumers spend $20 on a 
record when all they want to hear is that song that ClearChannel radio 
stations keep playing twenty times a day? Just buy the single. This may 
explain the recent resurgence of the CD-single - which may ultimately 
prove too late. Consumers have already learned that if they can no 
longer purchase CD-singles there are other ways to go about acquiring 
the individual songs they want: iTunes is an option - but that too may 
have come too late, because consumers learned a better way - free: 
downloading via file-sharing / P2P. The North-American recording 
industry, via the actions of the RIAA and CRIA, have now decided that 
this must stop.

    The Fading Ways Business Model

While other labels are endorsing law-suits against up/down-loaders, 
Fading Ways believes that home-taping, even up/down-loading, has always 
been a healthy, interactive promotional tool that remains largely 
unexplored by the industry - reviled because it is so misunderstood.

Firstly, there is absolutely no way to ascertain whether the people that 
are downloading music were ever going to purchase those records - 
downloading may hurt sales projections, but whether or not it hurts 
sales is a debatable and ultimately unprovable argument. Many times 
you'll tape or burn something for a friend and he/she will go out and 
buy that record - if they like the music enough! So, rather than focus 
on its negative aspects, should there indeed be any, Fading Ways has 
chosen to focus on the positive:

The internet, and digital audio technology in general, provide great 
promotional tools - relatively cheaply. People themselves can be turned 
into great promoters, if they like what they hear. We intend on putting 
the internet, and all its potential new listeners, to good use by no 
longer using the old copyright logo on our new release, opting instead 
for a Creative Commons license that is loosely based on the concept of 
CopyLeft, which the software industry became familiar with years ago.

What this means to our artists is that their fans, and the fading ways 
street teams, will be able to promote and distribute their songs without 
breaking the law. "SHARE" is the working motto for the Fading Ways 
street teams for 2004. We plan to hit concert line-ups and street 
shoppers (from Queen St. West to London's Camden Market to Amsterdam) 
with free Fading Ways samplers to get the music heard, to get it out 
there, while allowing the fans the option to participate in its spread 
by giving them the legal right to share it, distribute it, and support 
it.  We are confident this will lead, by year's end, to a dramatic 
increase in international sales of our new releases as opposed to our 
prior Copyright titles.

The essence of this thinking, which I think many people in larger labels 
are unwilling to accept, is that music in the digital age is a commodity 
that will increasingly become a collector's purchase. Disposable pop 
music will not endure without thousands and thousands of dollars to push 
it onto consumers. What will endure in the long-run are career artists 
whose fans (even if they download certain tracks for free) will always 
go out and buy their favourite artist's new record because they want it 
in their collection, complete with packaging.

In a nutshell, Creative Commons licensing makes perfect commercial sense 
for a growing indie label whose prime necessity is to get its artists 
and music heard. Downloading is free advertising for a new artist. From 
personal experience as well as fans' comments on the issue, I am 
confident that we have in our roster the kind of career artists that 
would benefit 100% from this approach, and rather than lose sales, this 
tactic will create new fans and actually improve world-wide sales of 
Fading Ways' music titles.

    The issue of "royalties"

One common misconception about Creative Commons licenses is that they 
eliminate royalty payments to artists. This is not so. Radio play 
remains a commercial activity (they're in the business of selling 
advertising) that, under the CC license, still has to pay royalties for 
playing a Creative Commons song. Similarly, mechanical licensing would 
still apply with the obvious exception of the Canadian Private Copying 
levy. TV usage, commercial film usage, and all other such uses remain 
unaffected by a CC license. CC complements and clarifies Copyright. It 
does not take it away.

It may be useful in this analysis to separate the concepts of Creative 
Commons "no-Derivs" and Creative Commons "ShareAlike" licenses.  In the 
no-Derivatives option you are focusing on the nature of free 
distribution of your work, allowing P2P and other fan-based sharing and 
advertising to become legal again - it should never have become illegal 
if it wasn't for the DMA Act of 1998 - a gross misappropriation of the 
concept of Copyright - cultural terrorism!

 When you chose the "ShareAlike" license, you are not only allowing your 
work to be distributed by fans, but you are allowing fellow musicians 
and DJ's to build upon your work.  This is a far larger step away from 
traditional Big Label music than simple Creative Commons. Fading Ways 
plans to release its 2004 CDs under either CC license, depending on the 
individual artists' choice.

Many major-label industry players refuse to understand the essence of 
these CC licenses. Many are so entrenched and hell-bent on safe-guarding 
their present business model, that they have become blind to more 
positive alternatives. Maybe they are simply watching out for their 
jobs, in the fear of getting fired - maybe they fear the end of life as 
they know it. Regardless, Creative Commons is not the enemy of the music 
industry.

Quite the opposite. Creative Commons is its salvation.

www.fadingwaysmusic.com
www.creativecommons.org

Russell McOrmond wrote:

>Fully linked (and possibly updated) version is at:
>  http://www.flora.ca/makelegal200403.shtml
>
>---cut---
>
>FOR IMMEDIATE RELEASE
>
>Ottawa -- March 1, 2004 -- FLORA Community Consulting wishes to announce
>the "Make it legal: don't litigate, use creative licensing" campaign to
>encourage software authors, musicians, and other creators of works of the
>mind to use Free/Libre and Open Source Software (FLOSS) and Creative
>Commons licensing.
>
>In March 2002, Roaring Penguin Software Inc. started a campaign called
>"Stay Legal - Use Free Software". CAAST, the Canadian Alliance against
>Software Theft, has been promoting a truce for businesses and
>organizations with improperly-licensed software. We believe the best way
>to manage improperly-licensed software is to switch to Free/Libre and Open
>Source Software (FLOSS - `free'' as in ``free speech,'' not as in ``free
>beer.'') where license maintenance is much simpler, and there are no
>per-desk, per-user or per-server obligations.
>
>While this campaign has been a success and many software users have
>switched to FLOSS, the current litigation by the Canadian Recording
>Industry Association (CRIA) suggest it is time to extend this campaign to
>the creator community. Incumbent content and "software manufacturing"
>industrial associations in Canada such as CRIA and CAAST wish to place the
>blame for current problems on their own customers, and create considerable
>customer relations problems by suing their own customer base. FLORA
>Community Consulting wishes all creators to acknowledge that the source of
>their problems is not lawlessness of their customers, but their
>pre-Internet era business models which make illegal common and often quite
>helpful activities of their customers which should be royalty-free.
>
>In the software industry most of the largest to the smallest software
>companies have either fully or partially adopted FLOSS licenses and
>business models. The larger companies include IBM who is a large Linux
>promoter, Novell which recently bought SuSe Linux and Ximian, Sun
>Microsystems who sponsor OpenOffice.org as well as market and support
>derivative StarOffice, Apple Computer with MacOS-X which is built on top
>of their Darwin project, RedHat Linux, and more than are possible to
>count. This model is being looked at seriously and positively by most of
>the software industry, with only a few well-known exceptions such as
>Microsoft, Microsoft dependents, and Microsoft led industry associations.
>
>We wish the success seen in the software marketplace for modern
>Internet-era business models to also bring success in other creator
>communities. While we strongly support the right of creators to protect
>their creative rights through copyright, including the right to sue those
>who infringe copyright, we do not believe that the current lawsuits
>launched by various intermediary industry associations will benefit
>creators. "The protection afforded in copyright is to the creator as water
>is to humans; too little and you dehydrate and die, too much and you drown
>and die. Survival requires understanding this delicate balance", explains
>Russell McOrmond of FLORA Community Consulting.  With this in mind the
>first step of this new campaign was to sponsor the Canadian File-sharing
>Legal Information Network (CanFLI), now hosted for free at FLORA.ca's ISP.
>
>"CanFLI is a network of technology law students and organizations across
>Canada who wish to gather and disseminate information to help people who
>are sued by the CRIA", explains Andy Kaplan-Myrth, M.A., law student and
>president of the Information Technology Law Society at the University of
>Ottawa. "We will provide FAQs and links to articles on the status of the
>law in Canada with respect to file-sharing, contact information for
>lawyers or organizations who may act for them, and perhaps information
>about how ISPs are responding".
>
>The next stage of this campaign will be to offer creators some of the same
>free consulting services as the "Stay Legal - Use Free Software" campaign
>did for software users. Rather than making suggestions of what software to
>use, we would investigate alternative business models that make use of the
>great opportunities of the Internet to the creators advantage, rather than
>choosing business models which make the Internet appear as a threat. As
>with the existing campaign, many creators would be offered a free day of
>consulting.
>
>"The Internet, and digital audio technology in general, provide great
>promotional tools", explains Neil Leyton, musician and manager of
>Toronto-based indie label Fading Ways Music. "Music fans can be
>inexpensive, often free, music promoters. We intend on putting the
>Internet to good use by no longer using the old copyright logo on our new
>releases, opting instead to display a Creative Commons license. These
>licenses are loosely based on the concept of Open Source which the
>software industry became familiar with years ago."
>
>The idea is simple: musicians would take the activities which the
>recording industry claim are a great threat and make them legal. Rather
>than sending your money to lawyers to sue your customers, you shift these
>activities in your business model from being considered a lost revenue
>stream to being a gained form of marketing and promotion. Rather than
>trying to make money off of the private non-commercial communications of
>your work you would leverage this new marketing to make more money off of
>other aspects of your business.
>
>Neil Leyton further explains, "One common misconception about Creative
>Commons licenses is that they eliminate royalty payments to artists. With
>the CC license we have chosen this is not so. Radio play remains a
>commercial activity, as they are in the business of selling advertising.
>That station, under the CC license, is still required to pay royalties for
>playing a Creative Commons song. Similarly, mechanical licensing would
>still apply with the obvious exception of the Canadian Private Copying
>levy. TV usage, commercial film usage, and all other such uses remain
>unaffected by a CC license. CC complements and clarifies Copyright. It
>does not take it away."
>
>There are many types of Creative Commons licenses, some that allow
>commercial communications, and some that even allow derivative works such
>that the Internet can become a worldwide musical jam-session. While all
>creative commons licenses make non-commercial private distribution of
>works royalty-free, and thus makes P2P Internet distribution of those
>works legal, the creator has many options for other aspects of their
>business. The Creative Commons concept is that rather than being "all
>rights reserved", you have "some rights reserved" under the control of the
>creator.
>
>As the old industry associations like CRIA and CAAST continue to head to
>the courts to protect their old business models and special interests
>against the interests of creators and their audiences, it is hoped that
>these creators and audiences will make important choices to protect their
>own interests. Creators and citizens need to turn the Internet into a
>great opportunity to build better relationships between them, and keep
>everyone out of the courts. As the animations from Creative Commons
>suggests, "it can be that easy when you skip the intermediaries."
>
>For more information please contact: Russell McOrmond. 
>Full contact information can be found at http://www.flora.ca/#contact
>
>-- 30 --
>Important Links:
>
>Stay Legal - Use Free Software
>http://www.stay-legal.org/
>
>Canadian File-sharing Legal Information Network
>http://www.canfli.org/
>
>Creative Commons
>http://creativecommons.org
>
>Fading Ways Music mission statement
>http://www.fadingwaysmusic.com/mission.html
>
>Perspective of a digital copyright reformer on past Heritage minister 
>Sheila Copps, contrasting with Internet entrepreneur Bob Young, co-founder 
>of RedHat, founder of Center for the Public Domain, and Lulu.com.
>http://www.flora.ca/russell/drafts/copps-ndp.html
>
>---
> Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
> "Make it legal: don't litigate, use creative licensing" campaign.
> A modern answer to P2P: http://www.flora.ca/makelegal200403.shtml
> Canadian File-sharing Legal Information Network http://www.canfli.org/
>
>--
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>links to other related sites please see http://www.digital-copyright.ca
>
>
>  
>

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Digital Copyright Canada

Re: [d@DCC] "Make it legal: don't litigate, use creative licensing" campaign.

All Canadian Citizens are "Rights Holders"!