I find it particularly curious that this was taken down. It was supposed to be something that the music industry is smart enough to understand for the "attack that you need to sit out for now" that it is - instead, they took the bait and went into attack mode themselves.
The reaction, of course, shows how disgustingly superior (to logic and reason, really) the industry perceives itself - basically everything that an artist creates and is related to the profit of the music industry must fit into a narrow idea of control. When they produce music that sells, the industry wants control. When it's only an appearance that could funnel traffic to something they can sell, they will allow it, because they know they will have control down the line. But if it is something like the Megaupload case - having the artists create something that does neither, but also seemingly "strengthen the enemy", they are caught outside of their logic.
Now, anybody who isn't with their back to the wall would work with such a situation creatively. But with the media industry, we have a curious case of not needing to get defensive (after all, they still turn record profits), but having bought into the idea that that is the attitude they have to display in order to survive.
It would be interesting to hear precisely how much standing they have on this, really. I wouldn't be surprised if some of the artists that appeared in that clip do have contracts that say - whatever you do, we own, if we don't like it, we will fight it. After all - the industry isn't stupid and they certainly have the access to the best legal defenses you can get these days.
The good thing about this hack by Megaupload is that it's a loose-loose for the industry and while they have no shortage of material in that area (it seems like we hear a horribly backwards story like this every month), that steady drip really may end up give us some progressive approaches.
I am almost certain the DMCA take-down request was at least semi-automated via tag searches on youtube and rubber stamped by one of their employees. You can see this yourself by submitting a video with tags that contain artists they have on contract.
I am also almost certain that MegaUpload understood this, and their video was specifically engineered to trigger these bots....
They can't just use a bot to DMCA stuff, they have to have a lawyer sign off on it. Granted, in practice, I think they pretty much rubber stamp it, but the law says that they're supposed to be acting in good faith. If they're not, well, they have nobody but themselves to blame. I mean, how can they expect YouTube or the government to police their stuff if even they can't get it right?
Copyright infringement hinges on permission. If even they don't know who has their permission to do what, nor even what they actually own, it seems ludicrous to suggest that the government or other companies should be expected to know.
If they're confused here, it's because they thought they owned these people, only to find out that they do not.
Oops, you're right. You do still have to make that statement under penalty of perjury that has never, to my knowledge, been enforced, about representing the rightsholder and having a good faith belief that something is infringing.
Sorry my statement was so terse. After getting some much needed sleep and rereading it, I most certainly could have written it better/nicer.
Bogus DMCA take-down requests from unknown/anonymous/incorrect entities are actually a significant problem. It would be nice if you were right and only lawyers could send such requests (and risk being disbarred for intentionally misrepresenting facts). Sadly, any anonymous nut-job can send DMCA take-down requests for any reason, and like spam, they can get away with it. I've seen no cases where the stated "penalty of perjury" has actually been prosecuted.
Right, and you cant just robo-sign foreclosure paperwork either. Until the justice department starts doing their job of enforcing the penalties both ways the system will continue to collapse.
Yeah, but I would like to hear about the back and forth with MegaUpload 'demanding" that this be put back up ... so what happened? Were they met with HUMAN opposition?
A bot that would repeatedly issue notices against the same material would not be one I would be legally confident in, if I were in Universal's shoes. After all, if the material comes back after the first take-down, it means that someone has made a legally binding declaration that the original claim was mistaken. If it did end up in front of a judge, I can't see a blind repetition having helped Universal's case.
The camel's back has been broken. Because of the label's stupidity, this trial will un-do a lot of the stuff the labels have been pushing for over the years. It will not only stop the trend of more restrictions dead in its tracks, but also reverse it. Megaupload will bring the necessary attention to the labels' abuses of DMCA and their other proposed bills, and we'll probably going to end up with laws that strengthen our online liberties.
It's important that we don't let this happen in a bubble. We have to show that citizens are behind Megaupload (in this case). The recording industry has no qualms on speaking on behalf of public interest, and I can imagine they'll suggest the public would prefer censorship with false positives than to risk "hurting musicians" through piracy.
If there have been other cases where artists have had music taken down by recording labels that did not own copyright, now would be a good time to bring them back to light.
While we are fighting the recording companies, why not put pressure on the people that give them power: the artists themselves? UMG is speaking on their behalf, acting on their behalf. If they are going to play the musicians card, why not strike back. It's one thing to hear the music industry wants to silence your speech. It's another thing when your favorite artist supports the same efforts.
Label's and studio's have every right to defend their products. However, they must do it in a responsible way. Stories like this make it difficult for politicians to legislate for more power's when the existing ones are already being abused by those they are set up to protect.
To be honest I found Warner Bro's mistake, apart from the OSS takedown, to be not that odious, you can't on the one hand have the web industry say that trying to deal with so much infringing content is almost impossible because there's too much of it, and on the other moan that Warner Bros make a few mistakes when trying to deal with that vast amount of infringing content, not on one site but on hundreds of sites.
There's a happy medium somewhere and safe harbour isn't it, for example YouTube knows that hence the auto filtering software they've developed.
Universal's action, however, is pure censorship in a massively misguided attempt to further their own goals. Ultimately it has resulted in utter failure.
If I recall correctly, Warner Bros was issuing DMCAs without even cursory research into whether they had rights to the IP or not. The problem isn't even so much that Warner Bros was cutting lawyer fees - fine - but that they weren't held to the minimum of responsibility provided by the DMCA for issuing fraudulent (OK, or at the very least incorrect) notices.
If someone puts up a 600mb file called 'Thor (2011)', what do you think it's going to be. Do you need to open and watch it? 10s or 100s of times on 10s or 100s of sites?
On the one hand many sites are making no attempt to stop the flood, pointing at the DMCA, on the other the film and music industry want to legitimately stop these files being shared.
I guess what I'm saying is are they supposed to download and watch every single file?
As that's precisely what the website owners have claimed is something they can't do, but the music/film industry suddenly has to do that on 100s of sites?
You're still giving the industry way too much credit for being reasonable. This is not a case of 600MB files named "Thor (2011)" that aren't Thor. In the link above, you can see that Warner Bros., having the copyright to the film "The Box" and the Harry Potter films went on to issue takedown notices for:
- Things that sounded sort of maybe like "The Box", like "The Box That Changed Britain" and "Cancer Step Outsider of the Box" (sic)
- Portuguese Harry Potter fanfiction unrelated to the films
- Open-source software that Warner Bros. didn't approve of since it might speed up downloads
- "URLs" such as "http://hotfile.com/contacts.html and give them the details of where the link wasposted and the link and they will deal to the @sshole who posted the fake."
Does that really represent a reasonable effort on their part to get it right?
Yes, I do agree somewhat, there should have been someone checking the matching as well as some oversight on the employees. I find it odd that someone would get so indignant that they'd take down an OSS piece of software.
But in the end the music/film industry has been asked, with little to no programming skills, to try and regulate the web industry, who's livelihood depends on lots of programming skill.
I think YouTube have moved strategically as they can see where that's ultimately going to end up, with a swing back towards sites doing the filtering.
The music/film industry has not been asked to try to regulate the Web industry. Instead, the music/film industry has demanded the right to do whatever the hell they like, with no oversight, no due process, and no hindrance, to ensure their own profits to the exclusion of all other considerations. It's bad for the artists, bad for consumers, extremely bad in terms of collateral damage to the Internet and society alike, and ultimately bad for the music and film industry themselves. Every study done by independent observers, every bit of evidence that is examined by people not being paid for alarmism, every new scandal that comes out, underscores the short-sightedness, venality, and sheer moral failure of the bozos running that show, and yet true to form, Congress continues to lick their spittle for a couple nickels come payday.
I guess what I'm saying is are they supposed to download and watch every single file?
No. But they could at least glance at the titles to make sure they're not firing off takedown requests for content that is quite obviously unrelated to the IP in question. Instead they're doing mindless searches for words that appear in their movie titles and submitting takedown requests automatically, which is pretty obviously an abusive practice.
If you want to use a legal mechanism to force a company remove content from a site, you should be required to put in at least the most basic good faith effort to make sure that you're actually forcing them to remove something that is your IP.
Sure, I get the whining about how it's a lot of work, but look...if enforcing your property rights is too much of a burden to be realistically achieved, then your business model is broken and you should find another type of work.
> If someone puts up a 600mb file called 'Thor (2011)', what do you think it's going to be. Do you need to open and watch it?
One problem is that they weren't even doing that well. I mean, they tried to take down things that weren't even files. They weren't just being fooled by deceptive files, they acted against correctly labeled items they did not own.
Now, if you're saying that it's totally impossible to police this, then I agree with you. The problem is that no one can do better than them in terms of knowing who has permission to do what. Yeah, they could be a lot less sloppy in their copy-pasting, but if even they don't know what they own, who does?
Now, there are still ways for artists to get paid in spite of this impossibility, and I think everyone wholly supports that. Everyone wants to see the artists succeeding. If not for them, there would be nothing to enjoy. But that impossibility of enforcement isn't going to go away no matter how much power we give them to censor stuff.
The more power we give these labels, the more innocent people are going to get caught in the crossfire.
I find setting up a bot to scan for keywords and submitting legal documents under penalty of perjury without checking its output, even when notified of its mistakes, to be pretty odious.
There is no happy medium anymore than a few rapes now and then are acceptable because you can't always be sure about what the other party wants.
The only solution is to the claimant (human, not script) throughtly research it beforehand and then bill the infringer for the time it took when they go to court.
> Label's and studio's have every right to defend their products
Labels and studios should not be allowed to move without the express content of the artist who produced the work. Better yet, labels and studio should just move when solicited by an artist.
Unfortunately, the industry standard recording contract leaves artists with no rights over their own music. They can ask nicely, and a smart label may be reluctant to offend a cash-cow artist with a maverick streak, but legally the arrangement is totally one-sided.
"The band members have each earned about 1/3 as much as they would working at a 7-11". I'd argue its slightly better than 7-11; You get to do what you liked to do, plus rent/food has already been paid for.
I wonder if you can choose not to use the label's equipment so you can keep more of your royalties.
It seems to me that the only way to end the labels' dominance over the music industry is to deprive them of their sole revenue source - popular and successful artists.
What services exactly does a label continue to provide, now that the internet has made it much easier for artists to self-promote? I presume that large portion of what the labels used to do can now be done very easily by the artists themselves.
There may be an opening for a tech startup here (maybe there's already one (or more) in this field) to take whatever the labels still need to do and undercut them on price and ease of acceptance (the labels are pretty picky about which artists they take). It seems to me that the labels have spurned a lot of the technological advances that have been made possible over the last decade or two in favor of clinging to an increasingly outdated business model in the hopes of squeezing a final dollar or two out of their musicians.
What services exactly does a label continue to provide, now that the internet has made it much easier for artists to self-promote?
Promotion.
Artists can self-promote all they want, but they're up against thousands of other artists that are also self-promoting. Labels pay people to listen to artists, work out which ones are actually talented (or, in reality, which ones will make the most money) and focus their promotion on those artists only. The signal to noise ratio is totally different, and they can afford to put far more resources behind this smaller pool of artists. They also have a lot of experience in promotion, which up and coming bands simply don't have.
There isn't a tech startup solution to everything. Maybe you could set up a site that crowdsources this artist selection process but I wouldn't be optimistic- there is no personal reward in listening to hours upon hours of awful music. Maybe you could give those initial listeners a stake in the bands they vote for? That could be an interesting idea.
I've long thought that MySpace might yet have a life as some sort of band-centric site. Since it died a horrible death nothing has really come up to replace it.
Tech companies hire PR firms to do their promotion. They don't give the PR firm a cut of all the revenues the company makes, nor do they give them equity necessarily (it does happen but its not the rule).
The 'labels' have no reason to exist, there is however a great market for Artist PR firms. We need that first disruptive one though, where an artist 'signs' with them meaning that they do the promotion but they don't own the music copyright. And as it is a new business model for the music industry it will take some time to work out.
In that sense, record labels are like VCs that also provide PR. For the amount of the investment that both labels and tech VCs make, its quite normal in our society to take an equity cut rather than a flat rate. Making the analogy to VCs also relates a lot better to the odds of failure, given that labels lose money on most of the bands they sign. And similarly to founders that don't know how to negotiate for good terms on their funding, many bands are also poor negotiators.
The labels don't really provide funding in the same way that VCs do; they essentially provide a very large payday loan. Any VC who demanded the kind of terms record labels do would be run out of the Valley.
The interesting question is, is there room for a real VC industry in music? I think there might be someday, but not in the current market — the existing cartel is so horribly messed up that they'd be pleased as punch to take you down with them.
Oh, definitely. But it's difficult to do something like that when the existing labels control access to radio stations, magazines, blogs, etc. Same goes for disrupting any industry, of course.
People always say that, but what magic promotion sauce do labels provide that couldn't be provided much more cheaply by a less arrogant and power-grabbing entity?
Why wouldn't artists benefit from a promotion-only "label" that took a much smaller cut of their earnings?
> People always say that, but what magic promotion sauce do labels provide that couldn't be provided much more cheaply by a less arrogant and power-grabbing entity?
I share this sentiment. I certainly listen to plenty of music, but I've never been subjected to overt promotion from the labels. I don't listen to music on the radio and I don't watch much TV. Everything I learn about new bands comes from social networking sites and individual band blogs, Twitter accounts, Facebook pages, etc.
It's a bit of a pain right now to do that, and so the majority of people still depend on a label's endorsement to determine whether they're going to listen to a new band. But if someone were to consolidate those various functions into one service, they might stand a chance of unseating the labels, or at least grabbing a significant share of the market.
I don't listen to music on the radio and I don't watch much TV. Everything I learn about new bands comes from social networking sites and individual band blogs, Twitter accounts, Facebook pages, etc.
It's a bit of a pain right now to do that, and so the majority of people still depend on a label
No, no, no, no.
If you don't watch TV and don't listen to the radio you are not the majority of people. Most of us are here discussing this topic because we are passionate about music. We are not the majority of people.
There is plenty of space for a niche site that lets bands promote themselves. But don't think that the majority of the population is just itching to get their hands on it, because they aren't.
> If you don't watch TV and don't listen to the radio you are not the majority of people.
You could have said the same thing in 2000 about social networking - if you don't share your photos and broadcast your thoughts over the internet, then you're not the majority of the people. But look at how things are now.
My point regarding how I discover and listen to music was to show that it's possible to do all that over the internet. That it's not outside the realm of possibility with respect to logistics and technology.
Don't look at what people are doing now, but what they could be doing in 5 or 10 years if you give them a valid reason for doing so. It's already been proven that people are willing to root their social interactions in websites and computers. There's no reason the same couldn't be done for music. It's just a fervent belief that the status quo is unalterable that stops these shifts from occurring.
Without a doubt, the degree to which the big music labels are entrenched will make such a shift damn near impossible. But as they say, the bigger they are, the harder they fall. Whoever is successful in cracking this egg will reap unimaginable rewards. Hopefully this will spur the kind of innovation that will lead to some breakthroughs in the near future.
Why wouldn't artists benefit from a promotion-only "label" that took a much smaller cut of their earnings?
They would. But they don't exist. The labels of today have a ton of existing contacts and influence with radio stations, magazines, blogs, etc.
A new promotion-only label just starting out would have none of that. In fact, there are already tons of "traditional" labels out there that are struggling to survive.
>I've long thought that MySpace might yet have a life as some sort of band-centric site. Since it died a horrible death nothing has really come up to replace it.
I don't know about that. I only really follow the UK electronic/urban music scene with any enthusiasm, but for what it's worth a lot of bands/performers use Twitter as their main point-of-contact, Facebook to post shows and releases, and Soundcloud for hosting online media.
But from a promotional point of view, that's awful. If you think about bands from a pure marketing perspective, they need somewhere to carve out a "brand identity" and a single point of contact with fans would surely be more useful.
And that branding is supposed to come from... MySpace? A lot of performers don't want anything to do with that site. It's like there's a stigma attached to having an active MySpace page.
Distributing across a number of services means they get everything they need, for free. And yeah, while some bands like the idea of having an "image" or branding associated with them, a lot don't.
Don't forget that for a lot of young people these days, this is how the world works. They don't expect a "proper" website for their favourite bands - they're already on Facebook, so they need a Facebook presence. They use Twitter all the time, so it makes sense they'd be there too. And Soundcloud is a great community for sharing homegrown music legally.
I'm kind of going off-topic here, but following the urban music scene has really brought into focus how irrelevant the modern commercial music industry is to a lot of its target market.
All of the above varies from genre to genre and location to location, obviously.
It's also a complex network of scouts, producers, and the like. Sure, plenty of bands produce and self-promote. Plenty of bands put their stuff on sites like bandcamp which (IIRC) give close-to-all the sales to the artists (with MP3 v0 and FLAC options for consumers). Amazon's MP3 store also has similar distribution (albeit at a higher cut for Amazon).
Distribution is solved (even when you throw stuff like iTunes, etc). But, you're not going to get top producers, recording studio sessions (which aren't cheap), and other things necessary for mastering a "high production value" album.
As popular as indie music and listening to Stephin Merritt sing over an 8-track is, popular music is usually heavily produced/mastered. These costs are simply outside the ability of most people.
Sure, you could say they should "bootstrap" it (to use a popular term amongst programmers) or seek "angel investors". But, look at how many programmers work for big companies.
I've seen a few bands here and there promote strictly on MySpace and SongCloud and do well. Word of mouth can be powerful. But, they almost ultimately sign up with a big label to get access to resources.
> What services exactly does a label continue to provide, now that the internet has made it much easier for artists to self-promote? I presume that large portion of what the labels used to do can now be done very easily by the artists themselves.
Labels are VCs: they provide initial funding, connections, PR, and they ream artists. The difference between VCs and labels is that VCs make their money when the company goes public, whereas labels make their money by fleecing the artist directly and using hollywood accounting.
Note that there are (naturally) many more small/indie labels than there are giant labels like EMI. AFAICT they're usually run by music lovers, sometimes musicians themselves, who can promote and advise artists, as well as curate for fans i.e. find interesting, special bands.
This is part of a trend to abandon due process. In some cases it's the government itself, with ICE seizing domains without having to go to trial and prove their case. In this case it's government abdicating their role in due process, telling corporations to do what they will.
This is leading to vigilantism, by the government and by corporations.
Cool. I would opine that a good 50% of the internet money made out there is very unsexy, hidden and underground. The people behind the businesses have absolutely no incentive to draw attention to themselves but occasionally they do slip through the cracks.
The reaction, of course, shows how disgustingly superior (to logic and reason, really) the industry perceives itself - basically everything that an artist creates and is related to the profit of the music industry must fit into a narrow idea of control. When they produce music that sells, the industry wants control. When it's only an appearance that could funnel traffic to something they can sell, they will allow it, because they know they will have control down the line. But if it is something like the Megaupload case - having the artists create something that does neither, but also seemingly "strengthen the enemy", they are caught outside of their logic.
Now, anybody who isn't with their back to the wall would work with such a situation creatively. But with the media industry, we have a curious case of not needing to get defensive (after all, they still turn record profits), but having bought into the idea that that is the attitude they have to display in order to survive.
It would be interesting to hear precisely how much standing they have on this, really. I wouldn't be surprised if some of the artists that appeared in that clip do have contracts that say - whatever you do, we own, if we don't like it, we will fight it. After all - the industry isn't stupid and they certainly have the access to the best legal defenses you can get these days.
The good thing about this hack by Megaupload is that it's a loose-loose for the industry and while they have no shortage of material in that area (it seems like we hear a horribly backwards story like this every month), that steady drip really may end up give us some progressive approaches.