There is a great deal of very exciting stuff that has already happened at Creative Commons, and that is about to happen too. We’ve got some exciting announcements coming soon, and the take-up rate on the licenses has surpassed our wildest hopes.
But there are the moments of disappointment. And this exchange with “legal” at mp3.com is one of the most disappointing.
The story begins when our assistant director, Neeru, sent an email to mp3.com to try to open up a line of communication about Creative Commons and its mission. As she wrote,
>> Hello MP3.com,
>>
>> Creative Commons provides free copyright licenses to musicians who want
>> to distribute their content online, but wish to reserve some copyright
>> protection. In fact, one you your artists, the Phoenix Trap, has
>> incorporated a Creative Commons license into their MP3.com home page.
>> We would love to help you offer Creative Commons license to your users
>> — it’s free, and a great way to make clear the rights and
>> restrictions artists would like to offer their fans.
>>
>> http://artists.mp3s.com/artists/15/the_phoenix_trap.html
>>
>> Please feel free to contact me.
>>
>> Regards,
>>
>> Neeru
>>
Harmless enough, I thought, and it was encouraging to see mp3.com artists begin to use CC licenses.
Monday, “legal” responded as follows:
>> From: [email protected]
>> Date: Mon Aug 4, 2003 11:05:33 AM US/Pacific
>> To: [email protected]
>> Subject: RE:Creative Commons and MP3 [#1316347]
>>
>>
>> Nothing replaces the legal protections provided by registering a
>> copyright with the US Copyright Office–most certainly not your “free
>> license.”
>>
>> This email is formal notice for you to cease and desist from further
>> contacting our artists through our web site to solicit for your
>> product/services, which are not sanctioned by us.
>>
>> Legal Department
>> Music & Media
>> Vivendi Universal Net USA, Inc.
>>
I can’t describe how depressing this sort of stuff is. There are many in the content community who understood right away the benefits and virtues of Creative Commons licenses. Indeed, at our announcement in December, we had a video endorsement from not only John Perry Barlow but also Jack Valenti.
But we’ve obviously not yet made the mission clear enough — at least if this is the sort of response we get from a company like mp3.com. Mp3.com was, in its birth at least, one of the most innovative digital music companies out there. Artists were free to sign with mp3.com without promising exclusivity. The company did a great deal to enable a wide and diverse base of creators, who could produce new music and sell it on the site. Tied with the fantastic eMusic.com site (which enables unlimited downloads of real mp3s for a flat monthly fee), the potential for this group of companies to help build a revolution in the creation and distribution of content is unlimited.
Except, perhaps, by old debates and even older thinking. So when “legal” writes:
>> Nothing replaces the legal protections provided by registering a
>> copyright with the US Copyright Office–most certainly not your “free
>> license.”
I want say: Of course, and nothing in CC’s mission would limit or discourage an artist from registering copyrights with the US Copyright office. Indeed, we are working on systems to make that registration much easier.
And of course, our “free license” is not meant to replace a copyright registration or copyright protection for that matter. Indeed, without copyright protection, our licenses are useless.
But I don’t get just why artists would not benefit from a “free license,” “legal” at mp3.com? Artists in general don’t make a great deal of money. You’d think eliminating the cost of lawyers would be a great help to them, wouldn’t you? Indeed, if you count the number of “free licenses” that we’ve given away, and you calculate their value the way the RIAA calculates the cost of music piracy, Creative Commons has given more than $100 billion to the creative community. That can’t hurt artists, can it?
>>
>> This email is formal notice for you to cease and desist from further
>> contacting our artists through our web site to solicit for your
>> product/services, which are not sanctioned by us.
[Sigh] again. Again, the greatest thing about mp3.com was that the artists were not owned by mp3.com, or anyone else. They were free. Yet here we are being ordered not to contact “our artists” “through our web site.” I’m not sure just what that would mean, but the tone is very sad. Mp3.com artists are among the most creative artistically and commercially. Shouldn’t they be free to decide how best to sell their songs? Wasn’t that what mp3.com was all about?
>>
>> Legal Department
>> Music & Media
>> Vivendi Universal Net USA, Inc.
Maybe the signature captures it all. The promise of something different at mp3.com — despite great technology and really innovative business ideas — must always compete with “legal.” Innovation must compete with tradition.
Is it impossible to imagine the lawyers ever on the side of innovation?
The bottom line is this: We’ve done lots of work at Creative Commons to change how people think about these issues. I think we’ve done great work. But we’ve obviously not done enough to crack through, even in places like mp3.com. So help us. Enter our contest. Blog better ideas. And tell me how we might get the lawyers to see. A year ago, I was quite confident I knew how. It has been a year of shaking that confidence.
It’s almost two different messages in their reply…
1) You don’t understand copyright, we do, shut up and 2) Don’t spam people through our site selling your free wares.
How odd…
MP3.com has been screwing their members for the last few years. It started with an approval process for each song that took well over a month. Posting new material became extremely cumbersome! Recently they limited artists to 3 songs unless they paid for the premium service, which exterminated dozens of great songs I found on there. The three song limit came with about a month’s notice and was the last straw for me. I use my own website exclusively to distribute my home recorded music and encourage others to do the same.
Ben
What’s more disappointing is that when reading the emailed reply you get the feeling that the amount of thought and consideration put into drafting it was exactly zero. Written by one person in under one minute who didn’t even bother to sign their name.
Most licenses, like the GNU Public License or one of the Creative Commons licenses, are built around the copyright. However, it seems clear that the Legal Department misinterpretted the phrase “free copyright licenses” to mean that Creative Commons was trying to replace the copyright with something else. This just means that you need to (a) change the phrasing of your message to make it clear that you are not trying to get rid of the copyright but trying to make the rules for copying the copyrighted item clear and (b) that there is still a long road ahead to acheive a level of public education about your goals before “Legal Department”s know what you mean without an introduction [and until then you need to put more than a short blurb into your e-mail messages] and (c) that you need to send another message to “Legal Department” to remove their misunderstanding. Silence on your part at this point would indicate you accept their interpretation.
I think it is also important to point out to them that you did not (I assume) contact “Phoenix Trap” though their web site in the first place and so trying to block “further contact” makes no sense – there was no initial contact (through their website).
Finally, I sympathize with “Legal Department” in trying to prevent, even well meaning people from “spamming” the users of their website. While it is true that you are not trying to offer a product for commercial gain (the typical meaning of SPAM), without knowing anything about Creative Commons (and there was little or no exposition in the initial message) “Legal Department” took the reasonable step of trying to discourage unsolicited commercial bulk email.
Don’t be discouraged, take it as an opportunity to work on the educating more people about Creative Commons and an opportunity to improve your first impressions by using real feedback.
> Is it impossible to imagine the lawyers ever on the side of innovation?
Actually, it is easy to imagine lawyers on the side of innovation. Famous lawyers/barristers are frequently creative in the defense of their clients. At least that is the way it sometimes appears to the public. 🙂
Hi, I’m in the band linked from Neeru’s original e-mail.
How should we take this? Do we need to take our music off MP3.com if it’s available via a Creative Commons license?
I agree with Fuzz. Well stated.
Don’t get discouraged. The public just needs to be educated more about the mission of Creative Commons.
I think the best place to start would be on college campuses across the nation. Tshirts, Posters, Concerts, and anything like that to provide a buzz or a forum for what Creative Commons is all about. Maybe Creative Commons should put something on Meetup.com about meeting other people interested in spreading the message of Creative Commons. Meetup is working wonders for Howard Dean.
> Is it impossible to imagine the lawyers ever on the side of innovation?
It is, and even more so when they are billing by the hour. when they are doing something else, maybe out of law, or on a purely results oriented basis, they can get real creative….
Perhaps this is the battle with which to start the war (excuse the hawkish rhetoric � this process should not be so combative). Creative Commons should liberate MP3.com by creating a web site that speaks directly to its artists � an /All You Need to Know About the Music Business/ for the next generation. The site should have much the same content as the CC site, but with a distinct �collaborate, build, share, and your act will prosper� spin. Talk it up at �Battle of the Bands� competitions that are so common on college campuses, at Guitar Center and Amoeba Music , and wherever people strum or sing. A volunteer artist rep. network? Concentrate on music: great success in this industry will beget the same in others.
The tone of contempt and condescension in the e-mail from “legal” is just astonishing.
I wonder what gives rise to their hostility?
That’s a rhetorical question, right?
>And tell me how we might get the lawyers to see. A year ago, I was quite confident I knew how. It has been a year of shaking that confidence.
Can’t let the drones get you down. Give it time and keep your eye on the prize! For every person blogging about CC, there are thousands and thousands that don’t know what a blog is. Social evolutionary change takes a long time, especially when the strategy is to change from within. Most people learn by experiencing and it will take time for the average citizen as well as lawyers, judges, corporate flaks, policticians, etc. to witness and comprehend the inobtrusive, expansive and sociological benefits of CC. Stick to your guns! You’ve got an army behind you.
Mark,
Best to wait a few days and see what happens. I’ve just asked mp3.com this question:
“An artist states that all of their music available through mp3.com may be copied to other people without charge for non-commercial use or for the creation of derivative works provided under the same condition.
Please confirm that when I purchase music from mp3.com the music does not contain any measures which will prevent that copying from working properly.”
If they say that the work has copy protection you’ll at least need to change the working near your Creative Commons license to warn people that if they buy from mp3.com they won’t be able to copy the work or create derivative works. What you do about that is up to you… either warn or offer another way to get unprotected versions based on proof of purchase, so you still make money but the customers get the license you’re offering.
Vivendi Universal seems to regard you as their property and Creative Commons as competition (distribution which doesn’t make them money). That may not be a good enough reason to abandon them if they are making you money – just clarifying things might do the job without harming your publicity and revenue.
Do any of you have or have any family member who has diabetes, hypoglycemia or impotence (yes, bet you want to be associated with that.:))? If the answer is yes I can see if I can get you promoted to CompuServe members through one of their communities, which covers that subject. No guarantees – CompuServe may not be interested. If you’re interested and want to discuss out of this venue, email me at [email protected] (this address expires in 8 days, starting now).
Everyone of note has fled mp3.com, chiefly when they started to charge for more then 3 pieces. The idea was bizarre, that they will charge those that supply their sole resource. Their rolling over for the RIAA was the last step. The web offers great potential for direct contact between artist and listener. No lawyers are needed or wanted. Blah middlemen.
Mark Gardner said:
Prefaced with the usual disclaimers (IANAL, don’t work for CC, etc.), I would think that there should be no conflict with your having your music on mp3.com and having a CC license. Vivendi/Universal might think differently, since they want absolute control over your work. If you signed any kind of contract with them as a condition of putting your music on mp3.com, they might be able to order you to drop the CC license if you wanted to continue to do business with them. For all I know they might be able to do it regardless of your wishes or future business relationship. In any event, I would let them take the first step.
From another perspective, you have to consider what it means to be doing business with Vivendi/Universal. They are one of the “big 5” music companies that is doing everything and anything to restrict, constrain, obfuscate, and otherwise thwart the use of the Internet as a distribution channel on any other terms but their own. They want to continue to be the lords living it up in their big corporate castles paid for by the toiling serfs in the fields of creativity, i.e. you. And currently they hold the keys to the kingdom; if you want to make the big money, you don’t have much option right now but to go through them. So weigh the option of buying into and supporting a corrupt distribution system which holds out the promise that you might hit the lottery and be able to retire before you’re 30, against the likelihood that if you strike out on your own you will almost certainly never reach that level but your work will be your own to do with what you will. Pay your money and take your chance.
Going for the hat trick:
No, it’s not impossible. But “lawyers” does not mean “corporate lawyers” and especially it does not mean “corporate lawyers working for a Big 5 music company.” Corporate lawyers work at the behest of the corporation and will only be on the side of innovation if it helps their employer. One could argue that that is their proper role.
You’ve made a mathematical error. The way the RIAA calculates the cost of music piracy, CC has taken away more than $100 billion from the recording industry in lost license fees. See, the RIAA doesn’t do math like the rest of us. Anything that results in lost revenue, no matter how or why, is a loss. Decriminalizing noncommercial use through a CC license is a loss. You can yell, beg, plead, and cajole all you want; they’re never going to see it any other way. They are not interested in the public domain, in fact they see it as a threat. Having a conversation with them, to make fair use of a line from the movie Bull Durham, is like a Martian talking to a fungoe. Don’t waste your time debating with them; take your case directly to the people.
Rather than setting your teeth to gnashing and deriding MP3.com’s ossification into “the man”, view this as a temporary setback, or an opportunity to refine your salespitch.
MP3.com needs a reason why they should help their artists distribute their works under Creative Commons licenses. There is only one argument that you can make — that it is good for their (MP3.com’s) bottom line. MP3.com invests essentially nothing in adding this capability and their dividend is artists/customers who are happier with MP3.com’s service. A more satisfied customer is more likely to stay a customer.
The license is not only a retention tool, but also a marketing device for attracting new artists. Considering how well the CC message echoes throughout the blogoshpere, MP3.com is bound to get some good blog attention with an endorsement of the CC license, which would help to cancel out some of the flak they now get for being part of Vivendi.
If you can show MP3.com that there’s an artist demand for the CC license (Mark’s message is a great example of just that, btw) they’re much more likely to endorse/help implement it. I tried googling to see if any other on MP3.com were using the CC license. The results are interesting. There are a number of artists on MP3.com who have web pages or blogs with CC licenses, but there’s no mention of CC on their MP3.com pages, maybe a little outreach to those people is in order. See the OKapi Guitars, Eric Brooks, the Amateur Sonic Laboratory.
If you can get Jack Valenti to go on film for you, you can do better than writing to [email protected]. Somebody’s got to know somebody who knows Michael Robertson. And while MP3.com’s not his baby anymore, he’s sure to be able to get you, if not a phone number, a personalized email address.
The root of the problem lies in legal education.
Lawyers are trained to work for clients,
NOT for truth and justice.
Sorry, but it’s that simple.
Changing that is a long-term low-probability-of-success
endeavor.
An end-run around lawyers
is the only long-term solution.
Stan
don’t shoot the messenger, oh puyleeze don’t shoot
As a follow-up to Stan’s comment, with which I whole-heartedly agree, I would suggest that “the lawyers” are the wrong target, or more specifically, and incomplete target. As he points out, IP lawyers are usually responding on behalf of a “client” (some through a law firm, others through direct employment).
The group to convince will be those paying the lawyers. The primary driving force for that group is near-term financial gain. Rarely is it “the public good”. This goal is also effectively passed on to lawyers who may receive a percentage of IP litigation as a portion of their fee, and therefore are also motivated by money.
Convince content owners that the Creative Commons is in their best interest.
–cameron
P.S. — in re-reading my comment, I’m nearly convinced this is a chicken and egg issue. If you convince content owners first, you’ll be battling advice they receive from their lawyers. If you convince lawyers first, you’ll have to teach them how to demonstrate the financial benefit (near-term) to their employers. You’ll also have to convince the lawyer that it is in THEIR financial best interest to be activist lawyers. I guess I’d just say: be patient.
This sounds like an opportunity for someone to come along and do mp3.com right. iTunes Music Store would be a great model for track provisioning, whether free or not.
It will be interesting to see if something like pb sugegsts grows now that MP3.Com staff were dismissed en mass last week and mp3.com is being sold off (hopefully without the lawyers 😉 )
Ben–got a link? I’d like to read the details on that story.
If someone can pick up mp3.com on the cheap and do it right, that’d be a nice thing.
Professor Lessig, MP3.com has had zero relevance to musicians for at least two years. I suspect you received a robo-response. They have been for quite some time a floating shipwreck, and not worth the bandwidth you committed in response. I am surprised that you took the time. Next time ask me.
By the way, even in the Gilded Era of Michael Robertson’s snake oil, I wasn’t sufficiently impressed to participate.
The paralysis in the transition to new media has disastrously impacted the careers of Flash artists, marketing peeps, video directors et al. We are three years into an era of starvation, lockout and attrition. Those of us who wait out the industry “creative labor” freeze are badly served by blanket cliches from the EFF regarding “Hollywood entertainment cartel.”
NO ONE KNOWS MORE THAN US that the potential era of prosperity was blasted into oblivion by the compensation packages of top echelon media executives. Can you say “R.I.P?” What consolation can we offer to thunsung and unlamented category of motivated marketing, graphics and promotion people who were sacrificed to cost-scutting convergence. Downsizing those who loved music and chose to work within the label model.
Your best friends at CC are the artists. 30,000 at CD Baby and 25,000 at Just Plain Folks. Your pals who are EFF San Francisco elitists need to listen mo’ bettah.
TOM B.
“Indeed, if you count the number of �free licenses� that we�ve given away, and you calculate their value the way the RIAA calculates the cost of music piracy, Creative Commons has given more than $100 billion to the creative community. “
Hee-hee. Great way to put it.
Can we get the EFF or someone to start a Non-Profit to host such a site for free music? If I had the money I would start a server to host all the music that people wanted to put out with CC Licenses.
I’ve emailed Lawrence Lessig about a possible approach to this, since I have the resources to at least get it started and handle the inevitable quick slashdotting.
How does free distribution for CC licenses and voluntary donations to a pool, distributed according to popularity sound? Money out of the pool to the artists, hosting company, site, bandwidth and Creative Commons, trying to ensure that the artists get a greater percentage than they can get in other ways… and low enough minimum donation amounts so fans can donate and give artists money at levels well below the current per track and CD prices for online distribution. That’s what I have in mind. Not sure yet if it can happen. Not entirely up to me but I can try to get it started.
Who cares about MP3.com?
No artists of note left;
They now charge the ARTISTS for providing the resource they rely on;
They obviously have no clue what a Creative Commons license is, nor did they pay any attention to the fact that it’s free.
Pass them up, pass the word that they suck now more than ever before, and encourage artists to find someplace better.
Actually I’d almost suggest sending all their artists a primer on “better places to be than MP3.com”, you’d be doing them all a great favor.
Electric Gypsy left mp3.com a while back too… and for the very reasons others have already pointed out.
As for the whole p2p/copyright/RIAA issue, I think we should just have a yearly renewable licence to upload/download any and all copyright material without restriction per internet device (ie computer or whatnot) obtainable by the OWNER of said device for a reasonable ($25 bucks per year or so?) fee.
Copyright holders (even us who are independent of the “industry”) could register our works with a central agency (similar in ways to ASCAP/BMI etc., hey, why not Creative Commons?) that would collect and distribute the money based on a percentage of uploads/downloads by popularity.
Devil is in the details, and it would have to be done fairly. Maybe our government needs to step in and force this solution upon us all.
Just an Idea.
Support Local and Independent Music!
Ever since the days of the IPO the mission of MP3.com has changed. Suddenly the only thing that mattered was shareholder value. Artists, who? Those were sad times. I really thought we had a good thing going. Maybe not necessarily for shareholders, but we gave artists an easy platform for internet presence. It has been more then 3 years since the IPO, I am not surprised.
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