We've been accused, repeatedly, of simply disliking record labels or trying to make them go away. Nothing has been further from the truth. In fact, for years, we've pointed out that there's still a role for record labels, and noted that the "problem" isn't so much the idea of middlemen, it's just how some of those middlemen have functioned over time. Much of our criticism is targeted not at "labels," but at specific actions by certain (generally major) labels, that seem to actually be designed to hold back music and new music business models. We'd be perfectly happy if those labels adopted smarter business models and have regularly tried to make constructive suggestions on what they could do.
And yet... people still say that we just hate all record labels and middlemen and want them to fail.
But we've regularly highlighted smart labels doing cool things, and others are noticing that as well. The New Yorker has a nice article pointing out that there's still a role for record labels to help a band do all the stuff it doesn't want to do itself, and that many indie labels have done a good job figuring this out. The article focuses mainly on the band Arcade Fire, and the success it's had, despite being on a small "indie label." It mentions the band Vampire Weekend, which has also had similar success.
There's nothing revolutionary about what their labels are doing. It's just that the bands generally have a bit more control and are less a cog in a giant machine, allowing them to stay a bit more true to their musical roots. As the article notes, this is "not a radical change so much as a scaling back, a return to a business model that involves fewer people, and concentrates on the product." Indeed, it notes that the major record labels are still where bands may go to play the lottery -- to try to get that one big check. But these more innovative and nimble indie labels are where a band is likely to go if it actually wants to make a career.
So, there's nothing wrong with labels at all. Our problem has never been with the concept of a record label. It's just with record labels that have worked hard to abuse the system in ways that cause more damage to musicians, fans, music and the wider society. Unfortunately, those efforts have been so public and so brash that many people have lumped all labels into the category of "bad." But, hopefully, that's starting to change, as people recognize that there are lots of useful services that a smart record label can provide.
Our recent post on recording industry accounting got plenty of attention, and it appears that more and more media sources are bursting the bubble of the myth of major record label deals. The latest is the BBC, which has a story about how a £1 million record deal isn't quite what most people think it is. Apparently, over in the UK, they throw around "£1 million record deal" like they throw around "$1 million record deal" in the US (despite the fact that the actual amounts are pretty different), and people think it sounds impressive. But, of course, as we've already noted, it's not really that impressive. Most of that money goes towards other stuff, and then the label keeps taking money that you earn to "recoup" the advance, even as it's taking most of your album sales revenue directly for itself anyway (and not counting that towards the recoup).
The article highlights a guy who won one of the big UK TV music competition shows... but has already been dropped from his label despite selling 500,000 singles and having a top 5 album in the charts. The final quote in the article basically highlights how a million dollar/pound recording deal really doesn't mean anything at all:
"What record companies are actually saying when they offer a £1m record deal is, 'we're going to pay the basic costs and, as long as you make it very quickly, then you can make a lot of money'.
"But you're going to have to make it very quickly.
"Now it seems to me that, if you don't make it in five minutes or on The X Factor, then you don't make it."
So there you go. A million pound/dollar recording deal covers your basic costs, and if you don't make it back in about five minutes, then you're basically a lost cause. Once again, those "big" record deals aren't looking so hot any more, are they?
We recently had a fun post about Hollywood accounting, about how the movie industry makes sure even big hit movies "lose money" on paper. So how about the recording industry? Well, they're pretty famous for doing something quite similar. Reader Jay pointed out in the comments an article from The Root that goes through who gets paid what for music sales, and the basic answer is not the musician. That report suggests that for every $1,000 sold, the average musician gets $23.40. Here's the chart that the article shows, though you should read the whole article for all of the details:
Of course, it's actually even more ridiculous than this report makes it out to be. Going back ten years ago, Courtney Love famously laid out the details of recording economics, where the label can make $11 million... and the actual artists make absolutely nothing. It starts off with a band getting a massive $1 million advance, and then you follow the money:
What happens to that million dollars?
They spend half a million to record their album. That leaves the band with $500,000. They pay $100,000 to their manager for 20 percent commission. They pay $25,000 each to their lawyer and business manager.
That leaves $350,000 for the four band members to split. After $170,000 in taxes, there's $180,000 left. That comes out to $45,000 per person.
That's $45,000 to live on for a year until the record gets released.
The record is a big hit and sells a million copies. (How a bidding-war band sells a million copies of its debut record is another rant entirely, but it's based on any basic civics-class knowledge that any of us have about cartels. Put simply, the antitrust laws in this country are basically a joke, protecting us just enough to not have to re-name our park service the Phillip Morris National Park Service.)
So, this band releases two singles and makes two videos. The two videos cost a million dollars to make and 50 percent of the video production costs are recouped out of the band's royalties.
The band gets $200,000 in tour support, which is 100 percent recoupable.
The record company spends $300,000 on independent radio promotion. You have to pay independent promotion to get your song on the radio; independent promotion is a system where the record companies use middlemen so they can pretend not to know that radio stations -- the unified broadcast system -- are getting paid to play their records.
All of those independent promotion costs are charged to the band.
Since the original million-dollar advance is also recoupable, the band owes $2 million to the record company.
If all of the million records are sold at full price with no discounts or record clubs, the band earns $2 million in royalties, since their 20 percent royalty works out to $2 a record.
Two million dollars in royalties minus $2 million in recoupable expenses equals ... zero!
How much does the record company make?
They grossed $11 million.
It costs $500,000 to manufacture the CDs and they advanced the band $1 million. Plus there were $1 million in video costs, $300,000 in radio promotion and $200,000 in tour support.
The company also paid $750,000 in music publishing royalties.
They spent $2.2 million on marketing. That's mostly retail advertising, but marketing also pays for those huge posters of Marilyn Manson in Times Square and the street scouts who drive around in vans handing out black Korn T-shirts and backwards baseball caps. Not to mention trips to Scores and cash for tips for all and sundry.
Add it up and the record company has spent about $4.4 million.
So their profit is $6.6 million; the band may as well be working at a 7-Eleven.
And that explains why huge megastars like Lyle Lovett have pointed out that he sold 4.6 million records and never made a dime from album sales. It's why the band 30 Seconds to Mars went platinum and sold 2 million records and never made a dime from album sales. You hear these stories quite often.
And note that those are bands that are hugely, massively popular. How about those that just do okay? Remember last year, when Tim Quirk of the band Too Much Joy revealed how Warner Music made a ton of money of of the band's albums, but simply refuses to accurately account for royalties owed, because the band is considered unrecoupable. Sometimes the numbers even go in reverse. If you don't understand RIAA accounting, you might think that if a band hasn't "recouped" its advance, it means that the record labels lost money. Not so in many cases. Quirk explained the neat accounting trick in a footnote to his post about his own royalty statement:
A word here about that unrecouped balance, for those uninitiated in the complex mechanics of major label accounting. While our royalty statement shows Too Much Joy in the red with Warner Bros. (now by only $395,214.71 after that $62.47 digital windfall), this doesn't mean Warner "lost" nearly $400,000 on the band. That's how much they spent on us, and we don't see any royalty checks until it's paid back, but it doesn't get paid back out of the full price of every album sold. It gets paid back out of the band's share of every album sold, which is roughly 10% of the retail price. So, using round numbers to make the math as easy as possible to understand, let's say Warner Bros. spent something like $450,000 total on TMJ. If Warner sold 15,000 copies of each of the three TMJ records they released at a wholesale price of $10 each, they would have earned back the $450,000. But if those records were retailing for $15, TMJ would have only paid back $67,500, and our statement would show an unrecouped balance of $382,500.
I do not share this information out of a Steve Albini-esque desire to rail against the major label system (he already wrote the definitive rant, which you can find here if you want even more figures, and enjoy having those figures bracketed with cursing and insults). I'm simply explaining why I'm not embarrassed that I "owe" Warner Bros. almost $400,000. They didn't make a lot of money off of Too Much Joy. But they didn't lose any, either. So whenever you hear some label flak claiming 98% of the bands they sign lose money for the company, substitute the phrase "just don't earn enough" for the word "lose."
So, back to our original example of the average musician only earning $23.40 for every $1,000 sold. That money has to go back towards "recouping" the advance, even though the label is still straight up cashing 63% of every sale, which does not go towards making up the advance. The math here gets ridiculous pretty quickly when you start to think about it. These record label deals are basically out and out scams. In a traditional loan, you invest the money and pay back out of your proceeds. But a record label deal is nothing like that at all. They make you a "loan" and then take the first 63% of any dollar you make, get to automatically increase the size of the "loan" by simply adding in all sorts of crazy expenses (did the exec bring in pizza at the recording session? that gets added on), and then tries to get the loan repaid out of what meager pittance they've left for you.
Oh, and after all of that, the record label still owns the copyrights. That's one of the most lopsided business deals ever.
So think of that the next time the RIAA or some major record label exec (or politician) suggests that protecting the record labels is somehow in the musicians' best interests. And then, take a look at the models that some musicians have adopted by going around the major label system. They may not gross as much without the major record label marketing push behind them, but they're netting a whole lot more, and as any business person will tell you (except if that business person is a major label A&R guy trying to sign you to a deal), the net amount is all that matters.
We recently had a post questioning whether the RIAA's legal campaign was a success or not. It seemed like there was plenty of evidence that it has been an incredible failure. Separately, we had a post about Radiohead's Thom Yorke, suggesting that the major record labels were going out of business in a matter of months. While we felt that was a bit of an exaggeration, one of our commenters, Ccomp5950 compiled data on RIAA label sales, along with some helpful notes about what other factors were going on at the time:
Year: $ in Millions
1992: 9024
1993: 10046.6 (CD players started to get more affordable towards mid-year)
1994: 12068
1995: 12320.3
1996: 12533.8
1997: 12236.8
1998: 13723.4
1999: 14651 (Work made for hire controversy)
2000: 14404 (Napster sued into bankruptcy)
2001: 13700 (Ipod came out October 2001)
2002: 12,614.2 (Price Fixing lawsuit hits RIAA)
2003: 11,854.4 (Grokster lawsuit, "induced infringement" introduced) (Mass lawsuits by RIAA start(AKA: The education campaign))
2004: 12,345.0 [Revenue Physical / Digital] (BMG gets out of the music business, sold to Sony later on: Big 5 becomes Big 4 for RIAA)
2005: 12,296.9 [91%/9%]
2006: 11,758.2 [83.9%/16.1%]
2007: 10,370.0 [77%/23%]
2008: 8,768.4 [66%/34%] (RIAA declares it's going to stop mass lawsuits with member money problems and EMI almost bankrupt)
2009: 7,690.0 [59%/41%] (Massive layoffs hit RIAA around Febuary: Blames piracy)
It's a great list, but I felt it could be even more powerful as a graph, so I just threw the following together, based on the info above:
And, that, right there, does a nice job painting a picture on the decline and fall of the RIAA and the major record labels. A few points are worth highlighting:
If you're not familiar with the "works for hire" scandal, you can read the full background here. Basically, a Congressional staffer by the name of Mitch Glazier snuck a tiny unnoticed amendment into a much larger bill in the middle of the night -- supposedly at the request of the RIAA -- without telling anyone. It effectively changed the definition of music recordings into "works made for hire," which was really important, because it meant the RIAA labels could hang onto musicians' copyrights for much longer, avoiding termination rights that let musicians reclaim their copyrights. Just a few months later, Glazier left his low-paying Congressional staffer job for a $500,000 job with the RIAA, which I believe he still holds ten years later. Thankfully, people quickly recognized what he had done and Congress had to go back and fix Glazier's sneaky wording. However, it is worth noting that the peak of this chart is right when Glazier inserted his infamous four words.
As we discussed last fall, now that musicians do have termination rights, they're lining up to use them and take their copyrights back from the labels. They can start getting the copyrights back in 2013. If you're looking for a date when the bottom totally falls out for the RIAA labels, that may be it. When the rights to their back catalog starts to drop out, this chart looks even worse. The RIAA won't give up easily, of course. The latest stunt they're trying to pull is to "re-record" albums, claiming that it creates a brand new copyright, that gives them another 35 years before termination rights are applicable. That is, of course, ridiculous, but the RIAA will likely try to fight it out in court for many years to extend that 2013 deadline by a few more years. Of course, all that money on legal fees could have gone to innovating, but that's just not the RIAA way.
Note that digital music sales is not even close to being a savior. The total is still dropping rapidly.
Of course, many have argued that the rise and fall may have a lot more to do with CD replacements of previous formats -- and this chart certainly suggests that could be an explanation. The big jump happened right when CDs became affordable, and people needed to go out and replace their vinyl and cassette (and 8-track!) collections. After a few years of that, it makes sense that the market should drop anyway.
Once again, it's important to point out that the chart above is not the entire music industry, but a limited segment of it: the RIAA record labels, mainly comprised of the big four record labels. It doesn't take into account all of the other aspects of the music business -- nearly every single one of which has been growing during this same period. It also doesn't take into account the vast success stories of independent artists and labels doing creative business models and routing around the legacy gatekeepers.
Ruby writes in to alert us to an interview with Radiohead's Thom Yorke, where he tells young musicians not to sign with a major record label because they're completely dying, and in the very near future:
Yorke claims the mainstream music industry is dying and that this will be "no great loss to the world" before telling aspiring musicians not to tie themselves to the "sinking ship".
Yorke suggests it will be "only a matter of time -- months rather than years -- before the music business establishment completely folds"
That seems like a hefty exaggeration. While it is true that the one major label that Yorke has worked with, EMI, may end up "going under" in the next few months (more likely, it will get bought out), the other three major record labels, while struggling, aren't going anywhere in a matter of months. The key point that he makes, though, is valid: young musicians today don't need the major record labels -- and, in many cases, it's quite risky for artists to sign a deal that locks them to such a label for many years. That is not to say that record labels can't help artists or that they're not needed. For some (perhaps many) artists, labels can be quite helpful. But, with the industry in flux right now, the major labels might not be the best place to go to try to build a career. Yes, they have marketing experience, but more and more indie acts are figuring out how to break out without the majors, and the "cost" of signing with a major is quite high in terms of control, rights and ability to experiment both artistically and at the business level.
Recently, we've noted some similarities between Amanda Palmer and the band OK Go, in that both had been signed to major record label deals, both had built up an amazing (and amazingly loyal) group of fans through various means (different for each) using methods totally outside of their major label marketing effort (which was somewhat lacking in both cases)... and last month, both were officially dropped from their label deals.
In the past, getting dropped from a major record label deal was seen as a bad thing -- a sign of trouble for the band. But in both of these cases, the process of getting dropped was initiated by the musicians themselves, who realized they could do much more outside of the major label system, than within it. So it seemed like a bit of serendipity, that both acts had aspects of their ongoing tours overlap in San Francisco this week -- leading to an event put together by Creative Allies at the Ex'pression College for the Digital Arts, where both acts performed and did some chatting about music and the music business as part of a webcast. Thanks to Amanda, I was able to attend in person with a small group of folks in the studio, and it was a fun time -- as both acts basically celebrated their freedom from their record label deals.
You can see the webcast in two parts below (not sure why it's two parts, and it was not easy at all to find the second part):
It's yet another reminder of how the role of the major labels is totally changing. Historically, the only way to be successful in the music business was to get a major label deal. They were the gatekeepers, and without a deal, you were out of luck. Being dropped from a major was effectively the end of your career as a performer with a very small number of exceptions. But, these days, artists are realizing that there's so much more that can be done without major label help, and that actually being on a major can hinder or block those opportunities, that it's become a cause for celebration when you get "dropped" -- or, perhaps, more accurately, freed!
While there's plenty of music, there were two key points on the whole business model side of things that came up that are worth repeating (in case you don't feel like watching both videos -- though, you should, since they're pretty cool). The first is that during the interview session between acts, Amanda was asked about "direct to fan" stuff, and she made a point that I've been trying (perhaps unsuccessfully) to highlight for quite some time: and that's that each act needs to do something that fits with what works for them. Her fear is that there's so much talk about "direct-to-fan" offerings, that people are going to start just trying to all do exactly the same thing, rather than charting a course that's unique to them.
We've tried to point this out as well, in noting how different the various success stories are. Inevitably, of course, someone says that we're saying everyone should do what one of these artists are doing (a favorite of critics is the false idea that we've said everyone should go to Disneyland with some fans, like Josh Freese). But that's not the case at all. For Freese, it was a part of his personality (and his life, as he basically grew up at Disneyland, and performed there as a kid). The whole point of learning how to better connect with fans and giving them reasons to buy, is not that everyone has to use Twitter, or that everyone has to offer "tiered" offerings. Or that everyone has to tour, even. It's that there are many different ways that each artist can connect with fans and give them a reason to buy directly, and that each artist has to figure out the way to apply the concept in a way that fits with their own personality and sensibilities. It's great that Amanda was able to really drive home that point during her interview.
The second part is actually an amusing exchange between OK Go and Amanda after OK Go's second song. Lead singer Damian Kulash asks the audience for questions, and if you listen closely on the video, you can hear Amanda ask about how the band was able to not just get dropped by Capitol/EMI, but also to take the last record with them (something she was unable to do with Roadrunner/Warner Music). Kulash tries (not all that successfully) to dance around the legalities by setting up a hypothetical version of EMI -- but basically admits that with EMI more or less fighting every day to avoid defaulting on massive loans -- while at the same time fighting with the Beatles and other top acts, the label apparently found the fact that Kulash might occasionally pen
op eds for the NY Times that made the label look totally clueless on digital things, that it was better to just usher the band out the door as quickly as possible. And, as such, the band had a bit of leverage, which was used to not just get out of the contract, but to take the last record with them.
Of course, the business model stuff was a minor part of the overall evening, which really was very much about music, and a rather celebratory mood from both acts about their freedom to stretch out creatively -- as both demonstrate beautifully in their separate performances. Among the many highlights, there's Kulash forgetting lyrics and later getting a case of the giggles in the middle of the band's hit song "Here It Goes Again" -- plus a rendition of "What To Do" performed entirely by the band using a table full of hand bells... And Amanda playing a song from her upcoming EP of Radiohead covers played on the ukulele because, as she noted, she can.
Yesterday I attended the always worthwhile SF Music Tech Summit. This has to be the fourth or fifth time I've gone, and I always find that after it's all over and I've had some time to think about it, I recognize one key theme that kept hitting me over and over again throughout the event. This time it was the increasing irrelevance of the major record labels. I've been to a lot of music industry events in the past few years, and there's no doubt that the presence of the majors at various events continues to decline (though, they still seem to have no problem wasting ridiculous sums of money on lavish parties at some events). While the decreased presence at Music Tech might have been a result of the overlap with another industry event, NARM, which the labels almost certainly deem more important, what was more telling was the audience's reaction to the major labels.
The "big draw" at SF Music Tech was certainly the panel in the morning that had Ben Folds (who you hopefully know), Michael Tilson Thomas (again, who you hopefully know, but if not, from the San Francisco Symphony), Jack Conte (from the viral sensation Pomplamoose) and Glenn Otis Brown (from YouTube and Creative Commons). That panel was certainly entertaining, but tragically there wasn't very much time for any of the participants to speak, and with each one showing a video (often kinda long), the whole thing felt kind of rushed. But what struck me wasn't so much what anyone on that panel said... but what happened as soon as the panel ended. The very next "panel" was a discussion between a guy at Warner Music Group and someone at Cisco about the "direct to fan" artist websites that Warner Music has set up using Cisco's Eos platform.
Not so long ago, you would think that a new technological offering via a major label would be something of interest to this crowd. But, the audience had no interest at all. While the organizers tried to keep people around, lots of people flooded the previous panel's speakers while many more quickly evacuated the room. Probably one-third of the people were still there by the time the next panel actually began. That says something. In the past, the only way to be successful in the music business was to go through the major label gatekeepers. These days, almost no one believes that any more. In fact, many have realized that the path to success often means getting as far away from the majors as possible. Even if what Warner was doing was interesting (and, honestly, what was presented was full of buzzwords and hype, but little that seemed particularly innovative) just the fact that no one even seems to care says a lot about what people think of the major labels these days.
The final panel of the day, on "Music & Money," included both Michael Robertson and Tim Quirk -- both of whom have long been critics of the record labels and their business practices. It gave them a chance to (accurately) gripe about the record labels and how they've spent the last decade (or longer) shooting themselves in the foot time and time again by basically killing off every innovative new startup that popped up by demanding ridiculous fees just to operate. Honestly, that panel could have been a bit more interesting if it had included a representative from a major label to absorb some of the punches (and even to punch back), but one audience question summed up the whole thing:
"If the major labels are such a pain to work with, why work with them at all?"
The guy pointed out that there are tons of independent bands more than happy to embrace innovative new services. The real answer, of course, is that it's not that simple. While there are tons of bands that are innovative and willing to work with new services, the music business is still (even if it's changing a bit) a hit driven business. A music service without the hits doesn't do well. That's just the facts, right now. If you're offering a streaming music service or a music locker and major label content is blocked, you've cut your potential audience down by a ton.
But, still, the question -- and the answer -- is telling of the major label's stature in the industry these days. Their position now is back catalog filler. That's more or less how people view the major labels. There's a lot less interest in working through the old gatekeeper system. The labels will last for a long time (though, perhaps in different forms and under new ownership...) due to their back catalog and the need for music services to have access to those songs. But I don't think there's anyone left out there who looks to the major labels to lead the music industry any more (except, perhaps, some out-of-touch politicians).
With the debates ongoing over where the music industry is heading, it's been amusing to watch the major record labels try to remain relevant. One talking point they've hit on lately is this idea that record labels are the only ones who invest in artists. So, for example, when we point out that multiple studies have shown that more money is being spent on music today -- just that it's going to other providers, rather than the record labels -- we've heard people come back by saying "but only the record labels invest in artists." Perhaps sensing a valuable talking point (and getting sick of claims from many in the industry that the labels have seriously cut back on investing in new artists), the IFPI has put out a report that basically is the major record labels screaming "hey, look, we do invest in new music!"
But, of course, no one really doubted that the major labels still invested in music, but lots of people are questioning how that money is being spent and what sorts of results they're getting from it. But where it gets funny is that the IFPI tries to use this to prove that labels still have a place, because, apparently, no one else could possibly fund musicians:
"Investing in music is the core mission of record companies," says [IFPI] boss John Kennedy. "No other party can lay claim to a comparable role in the music sector. No other party comes close to the levels of investment committed by record companies to developing, nurturing and promoting talent."
To which we would just add a rather important: yet. The labels still seem to think they have some divine right (or, perhaps it's just a gov't granted monopoly -- the two are so easy to confuse) to be at the center of the music industry.
And, of course, the amount invested, by itself, is not nearly as important as the return on investment. It's easy to throw lots of money away (and having been to more than a few big record label events, I can attest to their ability to throw away vast quantities of money in no time flat). But what most folks are focused on is the actual ROI.
You may recall that almost exactly a year ago there were all sorts of reports of music blogs using Google's Blogger service finding their blog posts silently disappearing. The issue, it turned out, was the way Google dealt with DMCA takedown notices from copyright holders. The way the DMCA is set up, in order to avoid liability, Google is put in an awkward position of having to take the content down. After the outcry a year ago, the team at Blogger spent a lot of time talking to the lawyers both internally and elsewhere (such as at the EFF) to see if they could come up with a better way to still follow the law, but avoid the mess of February '09. Back in August Google announced its revamped DMCA policy for Blogger, specifically designed to deal with this. Basically, the company tried much harder to communicate with users as to what was happening. Rather than just deleting whole blog posts, it would move them to draft mode, and then try to alert the bloggers via email and through the Blogger dashboard. This definitely seemed like a step in the right direction, but I still thought the company fell short on not having a clear counternotice procedure. Instead, it seemed to default to assuming the DMCA takedown was accurate, and moving a post to draft would be enough to get the blogger to "remove" the offending content? But what if the content wasn't actually infringing?
Either way, unfortunately, it looks like the new policy isn't working. Today, the stories started popping up again, claiming that music blogs were being deleted, leading to something of a Twitter frenzy. Certainly, it appears that some blogs had their content removed despite having permission from the record labels to post the content. But it also appears that some of the frenzy involves people finding the news stories from a year ago and not realizing we're in 2010 now. For example, this blog post at Nashville Scene points to a year old story as if it's new.
And, in fact, from what's being talked about from the blogs that did have their content removed, it sounds like the newer system (unlike the old system) did alert them to what was happening, but they just felt hopeless to respond. Google has put up a response, basically saying that if it doesn't receive a counternotice, and it keeps getting DMCA takedowns on the same account, eventually it takes the blog down as a "repeat offender." So we're back to the point that I predicted in August, where your average everyday blogger has no idea what a DMCA counternotice is and how to use it -- so it would be much better if Google made the process of filing such a counternotice a lot more intuitive.
In the end, though, there are two real issues here. First, is the ridiculous "left hand doesn't know what the right hand is doing" aspect of record label lawyers sending out DMCA takedowns for content that its marketing department sent to the blogs on purpose. But second, and much more important, is the ridiculousness of the DMCA's notice-and-takedown provisions in its safe harbors. It's a "guilty until you're innocent" type of measure. It effectively forces Google into a position where it needs to take down the content, until a blogger goes through the confusing process of filing a counternotice. It makes no sense, at all, why we don't improve the process to allow for a notice-and-notice system, whereby the blogger is allowed to respond to the copyright holder before any content is removed. That seems like common sense. On top of that, while the DMCA is a little vague on this topic, it does in some ways suggest that service providers must do more to prevent repeat offenders -- which is part of the reason why Google most likely shuts down those "repeat offenders." Again, it seems like Google should be a lot more communicative with blogs it's about to shut down, and a lot clearer in explaining the issues (and the best way to respond). The current notices leave a lot to be desired.
But, the real issue is how much pressure the DMCA puts on Google to act in this manner, and with things like ACTA being negotiated in secret with the aim of locking in the more draconian rules of such safe harbors, it will become increasingly difficult to fix that faulty aspect of the DMCA takedown process.
Recently, as the BPI was arguing yet again that ISPs were exaggerating how much it would cost to implement a three strikes type regime in the UK (which would be required under Peter Mandelson's Digital Economy Bill, aka DEB), we wondered if BPI would be willing to foot the bill, since it's so sure that it'll be cheap. After all, since the whole law is designed to prop up BPI's own business model, it seems to only make sense that BPI should be the one paying for it, right?
Turns out that we're not the only ones to think so. In a recent post about the DEB, Jeremy Silver (who I had the pleasure of meeting at Midem) points out that BPI is in the troubling position of trying not to make it sound so cheap that it's expected to pick up the bill, while still arguing that it's not so burdensome for ISPs to pick up the bill. But, various proposals actually are suggesting that BPI should pay the cost:
The Digital Economy Bill that is wending its glacial way through the UK parliament has produced an interesting row between the BPI (representing the interests of the major record labels) and the ISPs, telco's and mobile network operators. They are arguing over who should pay how much to fund remedial measures to clamp down on illegal file-sharing. The BPI is in a tough place since the cheaper they argue the cost will be, the more the ISPs respond by saying "well then you can pay for it." Minister Stephen Timms recently suggested the split should be 75/25 (with the BPI paying the greater amount).
Honestly, I fail to see why BPI shouldn't have to pay 100% of the cost (or, perhaps in conjunction with other copyright industry organizations) if such a plan goes through.
Silver recognizes the bigger issue of course, which is that almost no one actually thinks that a three strikes plan "will make a blind bit of difference," and that this whole game is really about rights holders "wasting their money by trying to control file-sharing." On that we agree. However, I have to disagree with his suggestion that the answer is a collective licensing regime, because I think that introduces way too many questions where it's not needed. A collective licensing scheme puts yet another bureaucracy in the middle, just for the music industry (well, not for long, because then suddenly everyone else wants one too: the movie industry, the software industry, the video game industry, the newspaper industry, etc. -- and why should it stop there, new industries will jump on board too: don't we need a collective license for people who view blogs too?). As it stands, I just think that we're finally seeing free market business models that are working, and it's way too early to jump in and distort the market with a collective licensing scheme.
