Arts + Labs Advisor Rick Carnes speaks before the House Small Business Committee.

Rick Carnes, president of the Songwriters Guild of America defends his record as an advocate of artist's rights.

"In a recent article in The Hill Public Knowledge's Gigi Sohn questioned why I have taken a position on Net Neutrality "so at odds with individual artists and so in line with Big Media".

I would simply reply that my record in fighting for songwriters and artists is, pardon the expression, public knowledge. I have fought in every major battle for creators' rights since joining the board of the Songwriters Guild of America (SGA) back in 1985.

As SGA vice president I fought alongside the Writers Guild of America, the Directors Guild, Screen Actors Guild, American Federation of Television and Radio Artists and the American Federation of Musicians to get the Bono Copyright extension passed. Public Knowledge opposed us"

Read the entire article at The Huffington Post.

On Thursday, Reuters reported on a worldwide "Music Matters" survey that was released by Synovate, a research marketing firm.

Not only did the survey confirm that most of us are "passionate about music" (63%, which is not surprising.)  It also noted some positive signs for the future of legal content online:

Music streaming is also a big fan favourite, with one in five people globally, topped by Korea at 60 percent, streaming songs in the past month from legal music streaming services.
 
Robert Alleyne, research manager for Synovate in Britain, said that while illegal downloads and counterfeit CDs still plague the music industry, the stigma attached to these activities had largely succeeded in reducing piracy.
 
"For a long time downloading illegally was easier and faster than downloading legally but not anymore. And consumers have taken to these new legal services," he said.
 
Not only are consumers willing to pay for music, they're also happy to spend cash on getting to know their favourite performers better through attending performances or gaining access to exclusive information or parties, the poll showed.

A strong digital economy will require functioning markets, and the shift towards legal delivery mechanisms like streaming services represents a positive step in the right direction.

As the above survey indicates, people are willing to pay for music.  Reasonable monthly fees, and enormous catalogs of high quality digital music files accessible through simple interfaces are picking up steam, proving that people will pay for reliably delivered, quality content on demand.

It may be that the "rental" model - buying access, rather than ownership - is what consumers will prefer in the digital economy. 

Public Knowledge posts a mystifying assault on the Irish rocker Bono over the issue of music piracy.

Whether or not you admire his music and political views, Bono made a good point when he wrote in the NYTimes that just because technology lets us make perfect digital copies of our favorite songs doesn't mean it's right to steal musician's work without paying for it.

Public Knowledge objects, dismissing online thievery as "trivial."  Although on other days, its founder Gigi Sohn, says pirates "stink; they should be thrown in jail. And I actually ... encourage the content industry to go after people like that."  However, she primarily argues that intellectual property rights hurt people in developing countries.  Sohn even accuses Bono of "undermin[ing] just about everything else he professes to stand for" - causes that he's devoted considerable time and energy to - by advocating for the protection of creative rights.

I'm not sure that Bono's New York Times op-ed, in which he specifically tried to "rally America to defend" creative rights, was really addressed at Africa. I'm also not sure that music piracy is a top priority for the desperately poor people Bono tries to help. That seems like a bit of a diversion from Public Knowledge. 

However, even assuming that this actually is about developing countries in Africa, it's worth noting that economists like Hernando de Soto would disagree with Public Knowledge and argue that "data shows that countries that protect the physical and intellectual property of their people enjoy nearly nine times higher GDP per capita than countries ranking lowest in property rights protections."  It will be more difficult for developing countries to develop without the presumption of property rights.

How those rights are protected is a different question and perhaps a process of discovery.  But on the question of whether they should be protected, Public Knowledge is wrong to treat intellectual property as if it is a public utility.

Rick Carnes, President of the Songwriters Guild of America, responds to the Financial Times article, "Copyright laws threaten our online freedom", by Christian Engstrom, Pirate Party Member of European Parliament.

If you search for Elvis Presley in Wikipedia, you will find a lot of text and a few pictures that have been cleared for distribution. But you will find no music and no film clips, due to copyright restrictions. What we think of as our common cultural heritage is not "ours" at all.

If 99 cents for a music file restricts your access to culture you probably have larger issues to deal with in your life than listening to old Elvis Presley records.

Technology opens up possibilities; copyright law shuts them down. This was never the intent. Copyright was meant to encourage culture, not restrict it. This is reason enough for reform.

We had thousands of years without copyright. It's called the 'Dark Ages'. Copyright has undoubtedly encouraged culture. Just look back at the explosion of culture in the twentieth century. The major growth of American music didn't begin until the US began to enforce the copyrights of other nations and restrict the access of 'free' music into the US. That allowed the US songwriters to create what we now call the 'Golden Age' of American music.

File-sharing occurs whenever one individual sends a file to another. The only way to even try to limit this process is to monitor all communication between ordinary people. [...] If you want to stop people doing this, you must remove the right to communicate in private. There is no other option. Society has to make a choice.

To claim that 'Society has to make a choice' between total anonymity or totalitarian control is naive at best. The right choice is neither.  Instead, we need to find a some sweet spot in between. It is simple to conflate the ideas of privacy and theft. I could, for instance, claim that it is my right to wear a ski mask into a bank in order to keep my identity private from the prying eye of the bank security camera. The bank security guards might take exception to that... for good reason. Laws are passed based on history, common sense and hopefully the common good. The internet is a new medium and the world is still trying to come to grips with the balance between privacy and security on the internet. Let's give it a chance by toning down the rhetoric.

The world is at a crossroads. The internet and new information technologies are so powerful that no matter what we do, society will change. But the direction has not been decided. The technology could be used to create a Big Brother society beyond our nightmares, where governments and corporations monitor every detail of our lives. [...]  The same technology could instead be used to create a society that embraces spontaneity, collaboration and diversity. Where the citizens are no longer passive consumers being fed information and culture through one-way media, but are instead active participants collaborating on a journey into the future.

The world is not standing 'at a crossroad'. We will not face the apocalypse if people have to pay for music again. Uncontrollable forces of evil will not be unleashed if you have to subscribe to a digital music service and pay a few bucks a month. What could and already is causing some serious cultural damage is the failure to enforce copyright law on the internet. As a songwriter I have lived out that vision of a world where citizens aren't simply passive consumers. I made my own music and when people liked it they bought it and I created a career from it. Then my career was stolen by internet music looters. The real threat isn't from 'Big Brother' it is from your little brother stealing music on the family computer. He is destroying the future of music for all of us, including himself.

The internet it still in its infancy, but already we see fantastic things appearing as if by magic. [...] But where technology opens up new possibilities, our intellectual property laws do their best to restrict them.

It isn't technology that 'opens new possibilities' it is the people who create the technology, the very people who earn their livings from patents and copyrights. Computer code, songs, art work, and drug patents don't appear 'as if by magic'. People invest their lives, their dreams, their money, their time and all their hopes for the future in them.

We intend to devote all our time and energy to protecting the fundamental civil liberties on the net and elsewhere. Seven per cent of Swedish voters agreed with us that it makes sense to put other political differences aside in order to ensure this.

Before you start claiming 7% is a mandate I think I would consult the other 93% of the electorate. They might not be that enthused about in putting their differences aside, especially the artists and inventors and the millions who are working in IP based industries.

Will we let our fears lead us towards a dystopian Big Brother state, or will we have the courage and wisdom to choose an exciting future in a free and open society? The information revolution is happening here and now. It is up to us to decide what future we want.

Once again, the choice is not limited to dystopia or utopia. We just need a world of sensible laws where commerce and community can both survive. We will get there eventually but not by dividing the world into Us vs. Them. To find the solution we need practical people that will engage in a reasonable dialog, not ideologues who want us to read their Manifesto and join their revolution.

The writer is the Pirate party's member of the European parliament.

The comments are from an old broken down songwriter, member of no party, in fact, not even invited to the party...

- Rick Carnes, President, Songwriters Guild of America

There hasn't been a great deal of coverage on this, but Charles Nesson filed a response Tuesday to last week's order by the judge in the Joel Tenenbaum case admonishing Nesson for his erratic behavior and tactics, which have skirted the line of the law.  In the order, Judge Nancy Gertner suggested that Nesson's bizarre personal and legal behavior has "overshadowed" the legal issues at hand.

(For a full recap of Nesson's bizarre defense strategy, read Copyrights and Campaigns by Ben Sheffner, who has been following the case closely.)

Nesson's response, which is charitably described by Sheffner as reading "like an impassioned blog rant," denies that he has overshadowed the issues at hand and that he will "continue to try to make as much of this case open to the internet as is possible under the law" since "the capacity to inform and educate the digital public is at the heart of this case."  Essentially, Nesson does not want the case to be about whether or not Joel Tenenbaum broke the law, but whether copyright law is fair.

Actually, Nesson takes this a step further:

The issue presented here is not only whether Joel Tenenbaum unfairly infringed copyright by sharing in music free on the open net. It is whether an entire digital generation did so and whether Joel will be individually punished for it. That generation needs to hear and see a case made on its behalf. The world needs to see and hear it.

This argument seems pretty disingenuous.  There are a lot of people around Joel Tenenbaum's age who never "unfairly infringed copyright by sharing music free on the open net" and probably even more who were swept up in the Napster craze but stopped sharing music when they understood that it was illegal.  These people probably would not appreciate being accused by Nesson of having "unfairly" shared files, nor would they likely appreciate Nesson appointing himself as their spokesperson.  Joel Tenenbaum isn't being held individually responsible for a collective action, he's being held responsible for his individual action of downloading copyrighted material.  To act as though this case is about an entire generation is kind of like saying that individual speeders on the highway who get caught are being punished not only for all other speeders, but for all other drivers.  It doesn't make sense.

It's the classic "but everybody else does it" defense.  We don't accept that from our children.  Especially when it's not remotely true.

Whether or not you buy Nesson's argument that he's protecting Joel Tenenbaum from martyrdom on behalf of everyone under thirty, one thing is clear: the Tenenbaum trial is now officially The Charles Nesson Show, and it promises to get more interesting as the drama--and legal hijinks--unfold.

How interesting will the trial get?  During written discovery (PDF) in the Tenenbaum fair use defense, Sony presented the image of Nesson below, by asking Tenenbaum to "admit that the image attached hereto as Exhibit 1, with the caption, 'Destroy Capitalism, Support Piracy,' is a true and correct copy of an image that was posted to the Internet by your counsel."

Charming...

Earlier this week, Ars Technica ran an opinion piece by RIAA  general counsel Steven Marks that responded to a similar piece the week before by Harvard law professor Charles Nesson.  Nesson, who is representing Joel Tenenbaum in litigation initiated by RIAA against him for illegal file-sharing, made some bold claims in his essay about his controversial defense of Tenenbaum, which argues that peer-to-peer sharing of entire copyrighted works is fair use.

Nesson, who offers little in his essay to defend his characterization of P2P sharing as fair use, calls Tenenbaum a David versus the Goliath of the RIAA and he refers to himself as a David versus the Goliath of "traditional legal norms."

Not so fast, Marks wrote in his essay of the Tenenbaum trial:

[It's] a crusade waged by a Harvard professor to gut the copyright laws that protect creators and his attempt to transform a courtroom into a "three-ring circus." Professor Nesson seeks a revolution, not a resolution or a real defense of his client. For a music community severely harmed by illegal music downloading, including thousands of working class folks out of jobs, this is no ivory tower exercise.

More importantly, Marks writes at length about the music industry's commitment to stemming illegal piracy by making it irrelevant.  He says:

Let's be clear: the best anti-piracy strategy is a vibrant legitimate marketplace rich with content and innovative business models. We get that.
[...]
We fully recognize that online theft will always be an unfortunate challenge to our industry. Our job is to provide the right incentives to bring it under sufficient control so that this emerging legal market can reach its potential.

We couldn't agree more.  

But whether you agree or disagree with the RIAA, you should read Marks' entire essay here.  It is truly one of the more compelling and well-presented cases I've seen about the tricky situation entertainment companies find themselves in with piracy, the thinking behind their litigation strategy, and the efforts they're making to move forward to bring more high-quality content online through efficient, safe, and legal means.

What's the future of music distribution? The answer seems to be a resounding, "Who the heck knows?" But there is certainly a growing number of business models on the table, giving consumers unprecedented choice.

One of those options is the new Napster, which WebProNews' Bruce Houghton reviewed last week:

I've spent some time on the new Napster service over the last few days, and aside from a less than intuitive interface, I can't find much to dislike.  At just $5 a month for unlimited streaming of a deep catalog along with 5 mp3's monthly, the service is effectively free.  And if I'm in Napster previewing a track or album (and since they've already got my credit card), why not just buy it there instead of jumping over to Amazon or iTunes? Reports are that Napster got a special deal on streaming licenses from the labels in part because they tied listening so closely to purchase.

Houghton thinks "there's an audience for the new $5 model, particularly for those comfortable with the Napster and parent Best Buy brands."  But it isn't the only game in town.

Also last week, Saul Hansell at the New York Times' Bits Blog talked to Tom DeVesto, CEO of luxury radio maker Tivoli Audio.  DeVesto said that there's a substantial market for music consumers who don't want to fiddle around with gadgets or playlists:

Mr. DeVesto is building his products mainly around traditional radio stations that have online streams. I asked about custom radio services like Pandora. He said that Tivoli has talked to Pandora, but said they hadn't been able to work out an economic deal. The displays on Tivoli devices can't display advertising. And users, he argued, won't want to hear audio ads, nor will they pay a fee. "Pandora with commercials is not Pandora," he said.

Hansell says otherwise, that users might not mind the ads; but he also says, "This is the right debate. Most people are in fact looking for the easiest way to make music they like appear, just like they were switching on a radio."

Which leads to a third music distribution model: satellite radio.  Although XM/Sirius may have had a bit of a head start on some of the newer online options, the company will soon be facing a challenge: higher subscription rates, as royalty rates agreed upon in 2007 are set to rise in August.  This could spell big trouble for the company, especially given the proliferation of online options. Technologizer explains:

Worse yet, this fee will increase by .5% per year through 2012. Thus it will be at least $2.10 in 2010, $2.21 in 2011, and and $2.32 in 2012. So much for those rate freezes eh? This is really bad for Sirius XM. The Internets are flooded with consumer complaints about the service post-merger, and many are looking for a reason to drop sat radio like a rock. I don't see how the company doesn't lose more customers over this. The company better get more responsive to programming complaints or there may be big trouble in sat radio-land.

Who knows which of these models or companies--among the scores of other options out there--will prevail.  But one thing is for sure: consumers are in the drivers seat in the digital music market, and they aren't being shy about voicing their opinions.

UPDATE: Carl Longino at Techdirt also weighs in on the Internet radio aspect and ties in the troubles facing satellite radio.

Harry McCracken at Technologizer looks at why consumers tend to favor the iTunes download model for music over the Rhapsody/Napster/Zune subscription model (which can sort of be considered "renting" a gigantic music library).  As McCracken points out, the cost of buying a single album on iTunes can be more expensive than an entire month's subscription, so why is the market so heavily skewed towards downloads?

A few reasons:

• You really are "renting" the music.  If you stop paying your subscription fee, you've got nothing to show for it, unlike a downloaded purchase.
• If the music service goes under (as some have), you lose your music even if your payments were up to date.
• Apple did one heckuva good job marketing the iPod and tying it to the iTunes music store. As McCracken points out, "I'd switch from buying music to subscribing it in a heartbeat...if you could do so and still own an iPod or iPhone." (He advises that if you don't already have a digital music player, you may want to look into getting one that supports subscription services.)

I'm sure there are more reasons.

But I think a combination of both might work.  I'd happily pay a modest rental fee if, for example, I could access Rhapsody's entire library for the duration a party.  I certainly would have saved a lot of money by renting access to music for a recent early 90s dance party I hosted rather than buying 30 individual songs that I'll probably never listen to again.  And I'd definitely pay to be able to add music to a playlist as it occurs to me, rather than having to download songs and resynch my iPod.

McCracken is dubious about the future of subscription music. But I think there's a lot more experimentation to be done before the jury is in.