I’ve read some articles lately regarding new legal activity by the RIAA, and it’s member companies. Shortly before the new year it was announced that nine music labels (including EMI, Sony, and Warner) were planning to sue vKontakte (via Tech Crunch). This was apparently going to happen because vKontakte was cleared of copyright infringement charges back in October (via TechDirt).
But the wrinkle to this story that is somewhat disappointing is that this new lawsuit is being filed despite vKontakte’s willingness to talk with the companies, and try to arrange some type of mutually beneficial licensing deal. And, the obvious good will shown by vKontakte in signing an agreement with Muso (via MusicWeek) to monitor the site and set up a one-click take down process back in August.
Stifling Art and Innovation
Of course this kind of action from the record labels should not surprise those who have watched the RIAA and it’s members in action to date. Strong-arming their way into a superior position through court action is nothing new. What is a slight twist here is seeing the lengths they will go to in pursuing and manipulating a party that has shown a willingness to work with them.
But, again, not exactly a surprise. It’s what we’ve come to expect from these companies. What is a surprise? Apparently these recent actions have emboldened the RIAA to move into a whole new territory. What is terrifying about this new territory, in my opinion is they are going after sites that are non-direct and non-contributory to infringement.
What? How can that be? Well, lets talk about a few recent stories.
The first was the surprise shutdown of Turntable.fm back in December. Now suggesting that the RIAA, ASCAP or BMI were directly involved in the shutdown of Turntable.fm would be wrong. No one has said that the companies contributed to the shutdown in any way. However, I have remained critical of the music industry’s indirect involvement in the events that lead to up to the shutdown of Turntable.fm.
Turntable.fm had to jump through hoops to supply a database of music for their members to listen to. The database and the code needed to support it, was fraught with oddities that make me speculate they were the result of the terms and conditions of agreements Turntable.fm had reached with the record companies, RIAA, etc. such as:
- Using geolocation to block access for people from other territories.
- The stipulation that a song could only be played so many times in a specific period (I forget the exact details, despite running into the notice more than a few times).
- The bizarre requirement of the number of people who be in a room before a DJ could hear the music he / she was playing. Yes, if I started a room, and started spinning music, I couldn’t hear it until there were enough people in the room to meet some arbitrary requirement.
- The way some uploads would be dropped automatically, presumably based on false-positives from matching copyrighted content.
- Tracks suddenly disappeared when the database updates occurred.
And, I don’t know what they had to do to handle ASCAP / BMI compliance, but I can only believe that it was not all that simple. I know in the last year they had done some work on being able to graph track shares, and I would presume from that they knew a fair amount of information on track plays. It’s not much of a stretch to believe this information was used to satisfy contractual terms, or for negotiation.
In my opinion, given this evidence, it’s no wonder Turntable.fm had problems trying to monetize the site. The demands to maintain compliance with the RIAA, ASCAP, BMI added lots of overhead on their work. It’s no wonder they have turned to their live event platform, where presumably there is a lot less work in maintaining compliance, and more focus on the end product, marketing, and monetization.
But, my thoughts on Turntable.fm are conjecture based on my observations. There is much more concrete evidence that the RIAA has moved into new territory where they are going after non-infringing services in order to control the market.
On Friday, December 20th, ex.fm announced that it would be closing (via ex.fm). While they don’t specifically point to the RIAA, they do point to the music industry and the record companies as part of the reason for their shutdown:
The technical challenges are compounded by the litigious nature of the music industry, which means every time we have any meaningful growth, it’s coupled with the immediate attention of the record labels in the form of takedowns and legal emails. Today, subscription services are gaining in popularity and enjoy the blessings of most major labels at a non trivial cost to those companies.
Given that ex.fm didn’t directly supply music themselves, but rather built a large, searchable database of music and sources that would put it clearly in a non-infringing category. But apparently the RIAA and it’s member companies aren’t happy with controlling how their music is made available online. They are now trying to control the use of the metadata about the music, and trying to control how the audience, and the internet at large is allowed to discover music. Through constant pressure and the creation of a severely litigious environment the RIAA member companies have managed to stifle the innovation that ex.fm brought to the table
And, just this last week there was an announcement of another site that was shutting down, this time directly in response to the threat of litigation from the music industry: Hypedmusic (via Gigaom). In a blog post, Luke Li explains the scenario that lead to the shutdown of Hypedmusic, and concludes with:
I’m 18 years old, and I definitely do not want to get sued. I am not a lawyer, so I’m not sure if this is exactly a cease-and-desist, but I definitely did not want to test the RIAA out on this case. I took down my iOS app immediately, as well as my Android app and website even though they did specifically ask, just to be safe. I found out a week later that ex.fm was getting shut down as well, which makes me think that the RIAA is just making a clean sweep of the app store.
Again, just to reiterate: I did not make HypedMusic with the intention of infringing copyright, I thought I was operating in a legal area after seeing different, large companies do similar things. Once I saw the RIAA’s email, I complied immediately.
In the DMCA Policy on the Hypedmusic website, Luke clearly explains why he believed that his site was non-infringing, to which I would have to agree:
HypedMusic simply makes use of data that is legally exposed to the public via APIs from large websites that are also legal, HypedMusic is also completely legal. HypedMusic also confirms to DMCA policy by allowing copyright owners to claim infringement by following the procedure detailed above to firstname.lastname@example.org, and we will quickly take down the infringing material. Thank you!
In other words, he only used publicly available information, from legally compliant sources. He also provided a method for the industry to remove anything they felt was infringing. And instead, he was threatened with a lawsuit.
So, it’s no longer sufficient for the RIAA to control how their music is released on the internet. Now they want to have complete control over the services that make their music available, and how the information about the availability of the music is presented.
What’s next? Are they going to go after a site like plug.dj that uses publicly available API’s to allow listeners to search YouTube and SoundCloud and collectively listen to music? Is this a form of radio, or is it a public performance? What does that distinction even mean in the age of the internet?
Do we really want a world where only the Google Play’s, iTune’s, Amazon’s, Wal-Mart’s, and other sanctioned sources can distribute music? (Does anybody else see the similarity between this scenario, and the way the small, independent music stores were basically run out of the business by larger chain stores?) Do we want to live in a world where we aren’t allowed to discover music unless a multi-national conglomerate is satisfied that they are making their buck from the presentation of a piece of music? What does this mean for other artistic or socially relevant expressions?
One thing is for certain: we shouldn’t allow the music industry to make the rules on their own. These most recent shutdowns, legal threats and trolling are the result of an industry that has gone out of its way to maintain its monopoly position. They have and continue to do everything they can to maintain control over streaming services such as Spotify, Pandora and Rdio. They have even managed to worm their way into control over music discovery services before — such as Twitter Music which requires a Spotify or Rdio account to listen to any music. (Which, as I’ve pointed out before sucks for many Creative Commons artists.)
The industry will do everything in its power to stifle art and innovation, and restrict access to artistic expression all for the sake of a few dollars, damn the consequences and implications this has for society at large.
But then again, the music industry really isn’t about producing artistic works of relevance or value. At least that’s my opinion.