Friday, January 20, 2012

Online Piracy and Solutions, from and Artists Viewpoint

Piracy is a big problem. Let’s take a step back from the hoopla and legislative and corporate over-reaching and admit that. As an artist, and not as a lawyer, I’m going to try to get people to understand why this is a problem.

The greatest threats of the recent legislation have been to what I will call for short, The New Media, YouTube, Facebook, Google, Wikipedia, and other sites where users have freedom, almost absolute, to post their thoughts, videos, graphics, and reactions to those things from others. This almost absolute freedom for users to create and upload their content extends by law to the service providers who are mostly immune from liability for what their users post (“content”). Often times, a user will post material, like a song in a video, or a movie clip, that to copy without authorization would be a copyright violation, with civil and criminal penalties in some cases, and the copyright owner may be compensated for the unauthorized copy, and a penalty for each and every instance of unauthorized distribution, plus attorneys’ fees. This is the way the law is now. What SOPA and PIPA did, although putatively well intended, was draconian. It gave the power of copyright enforcement to bureaucrats, and the power to shut down one of these sites in its entirety, if it suspected the site and a user to be violating a copyright. Some have argued that under these proposed laws, a mere written complaint from a third person, or the copyright holder, could authorize a bureaucrat to order a shut down of one of these billion dollar businesses. Never mind that millions of users publish on and use these sites legitimately every day. Certainly extreme in my view, and as an artist who uses these sites, it would threaten my new way of business, and millions of other artists as well.

The New Media holds itself out as an alternative to the oligopoly of old media giants, and this is certainly a valid point of view. The Old Media is roughly defined as the supporters and drafters of these bills, and the New Media the opposition.

As an artist, I am caught in the middle. Online piracy is the unauthorized, uncompensated distribution of works of art and trade (content), via an online, internet service provider, ie., The New Media, most often. Here’s what it’s like, and what happens.

Every time a songwriter writes a song, his work is automatically by law considered copyrighted. There are ways to protect it further, but we do not have to get into that. If she plays and records her work, that recording is also copyrighted. Sometimes the songwriter records her music herself, and pays for the reproduction of CD’s and digital copies (what we call mp3 recordings, for short). These CD’s can be distributed via services like, and others. The digital recordings can be distributed via iTunes and other online upload sites like “Megaupload” Sometimes the artist will go to a company to have her recording done, published and distributed. In that case, the copyright ownership is split. That is too complicated to explain, but it’s this split that pits the big Old Media houses against the artists. The media house owns the copyright, and the writer owns a royalty interest in every reproduction the house makes and/or sells. This includes performance royalties and radio play royalties for each time her song is performed or played on the radio. The media house (say Sony for example) gets a cut of the performance and radio play royalty, and so does the artist. The percentages vary per the individual contracts between them.

Now, here’s where the New Media comes in, as well as the opportunities for online piracy.

Think of YouTube as a radio or TV station. Yes, I know. Archaic, but I used to actually have a radio AND a TV. Now, back in the day, when songs were primarily broadcast and listened to on the radio, every time a song was played, a royalty was owed to the copyright holders of that song. The going rate was .9 (nine cents) per play. Complicated statistical analysis was applied to figure out how much was to be sent to the registration and enforcement houses like ASCAP ( and BMI (, who would then forward the royalties to copyright holders. This is how artists made their most of their money if they recorded and published their works, usually through the big houses. The internet and advanced computers changed all that.

The independent artist using technology, can now record, mix, copy, and publish his works from the privacy of his home studio for a few thousand dollars of equipment. He could sell his recordings as digital masters to iTunes, Amazon, and other downloading services so that the public could by direct from him (save a few cents to the distribution services). Google, Yahoo, Bing, and other big search engines took care of the marketing expenses for him. Anyone could search these engines and find recordings of Joe Blow to purchase in about 5 minutes. The artist could create a video to his music, post it on YouTube, and through the miracle of modern online advertising, get paid for that, AND promote for FREE the sale of his CD’s and digital recording. Okay, understand so far?

Now, what would happen if someone bought Joe Blow’s digital recording, and created her own video to go along with that (the technology for that escapes my understanding, but it is what most often occurs), then this SusyQ would post the video with Joe Blow’s recording attached, onto YouTube. What if the song was the Rolling Stones’ “Sympathy for the Devil”, the copyright being owned (I think) by Sony? What if said video got 1000 hits the following week? A “hit” would be the equivalent of a radio play. Shouldn’t the copyright holder of the song get paid for each hit, as it is a reproduction and distribution of his song, the rights to which HE owns? That’s $900 dollars a week, folks. Multiply that by thousands of videos uploaded a day, and a hundred or so hits a day for the good ones. Somebody is going to be very upset that they aren’t getting paid a lot of money. Does YouTube owe a portion of this money? Does the uploader? Who? How much does the artist get, and how much does the publishing house get? What if YouTube cannot pay? How about the search engines that link to these videos? If I click on a Google link to a YouTube video, is that a “hit”, or a play, and does that make Google liable for a distribution?

What if a dancer writes a choreography to a piece of music she paid for, and performs it? Well she and the venue owe a performance royalty each time she does so. This problem has been well handled for years, mostly. What if she records a video of her performance to this song in her own studio? That’s perfectly legal. What if she sells that video on a DvD? Ah! Royalties are then owed per copy to the copyright holder of the song. That’s been handled previously under current law. What if she uploads the video onto YouTube? Here, we don’t have a recognized answer. Does she owe the song’s copyright holder for every hit? Does YouTube? Does Google? What if someone posts a bio of this dancer, and/or this musician/writer onto Wikipedia and posts an upload of this video? Who is owed, how much, by whom, if any?

What if a dancer performs at a festival or restaurant and a patron therein makes a video? That’s okay, as long as she doesn’t violate the rules of the venue/promoter of the event. (That’s not a copyright problem, yet.) What makes it a copyright problem is when the videographer sells the video to the dancer, uploads it online, and/or publishes it on a DvD. Complicating the matter further is when the dancer or other recipient of the video uploads or otherwise copies and distributes it. Who is owed, how much, and by whom, if any? As you can see....


SOPA and PIPA were and are centralized solutions to a BIG PROBLEM, with millions of people involved with billions of dollars at stake. BIG PROBLEMS like this are composed of thousands if not millions of little problems, and people with their livelihoods at risk. Like all centralized solutions to BIG PROBLEMS, they ignore all the little problems for one BIG SOLUTION. And, they are formed by the people with the most influence on the process, and in our political process that is usually by BIG MONEY (the supporters in the Old Media, mostly). My questions above are just a few of thousands of questions to be answered, and most were answered very badly, in my view, by the drafters of SOPA and PIPA

I’ve tried to explain in as simple of terms as I could the structure of the copyright system as it involves music. There are many other forms of art reproducible and distributable on the internet. There are many copyright interests in each. A centralized, bureaucratic solution just cannot deal with them, and when that solution is influenced by the mostly politically connected interests, one can scarcely imagine the intended and unintended consequences.

The way BIG PROBLEMS made up of little problems are best solved in my opinion is through the courts, one dispute at a time, using existing copyright law and theory, which has worked very well for a few hundred years. If precedent needs to be changed to fit the situation, that can occur as needed in the appellate courts. If statutes need to be changed to deal with a specific problem, let that happen, too. Like I always say, BIG PROBLEMS solved by BIG PEOPLE trample the individual rights of everyone, and that is Tyranny, an even bigger problem.

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