Amazon's Best Selling MP3 Album For 2008 Was Available Legally For Free

from the give-people-a-reason-to-buy dept

As some of you may know, in a week and a half I'm giving a presentation at the music industry MidemNet conference, focusing on how Trent Reznor's various business model experiments highlight the future of the music industry. I'll be putting the final touches on my presentation this week, and it's great to find one additional data point: the top selling MP3 download on Amazon last year was Nine Inch Nails' Ghosts I-IV album, which you probably know Reznor put under a pretty open Creative Commons license (and even gave away a bunch of the tracks himself). In other words, you could go on pretty much any file sharing system out there and legally download the music for personal use... and yet it was still the top selling downloadable album (this is on top of all the money earned by Reznor's other business models associated with this album). Certainly puts a nice little cherry on top of the theme of my presentation.

Filed Under: best selling, business models, creative commons, mp3s, music, nine inch nails, trent reznor
Companies: amazon

When Life And Work Blend, Everything Is Commercial Use

from the welcome-to-the-way-we-live dept

I was recently having a talk with a friend who was trying to determine what to do next with his life. He's not happy with his job and wants a "goal" for the future -- but isn't really sure what he wants to do. I suggested focusing on a hobby in the short term and devoting plenty of time to it. He felt that was the wrong approach, because a hobby is separate from a job, and the two would never connect. While that could happen, the internet today has made it increasingly easy to turn a hobby into a job in some way or another. It's not that you need to turn a hobby into a job. Sometimes it's good for a hobby to just be a hobby. But, if you focus on what you're passionate about, I think eventually different job opportunities start to come to you.

But it's this blurring of "personal" and "work" lives that again has me pondering if there really is a meaningful distinction between "commercial use" and "non-commercial use." Some of this debate first came about years ago, when some web publishers claimed that their RSS feeds were "for non-commercial use only," but what does that mean? If I read your site as part of my job, have I violated that rule? If I learn information from your feed that allows me to make money, have I violated that rule? More recently, there have been proposals to separate copyright violations, such that "non-commercial use" is allowed. But, again, you quickly run into very questionable scenarios. If my personal blog has Google AdSense on it, is it commercial use? If I end up getting a job because of my "personal use" of your content, does it suddenly morph into "commercial use"? The questions get more and more confusing, and the mess would make less and less sense.

These days, it seems that the distinction between personal, professional, commercial and non-commercial are becoming increasingly meaningless -- and that's not a bad thing.

With that said, I have to agree with Gordon Haff over at News.com that Creative Commons is making a mistake in trying to better define the meaning of "commercial use" for its "non-commercial" licenses. I'm already struggling with its current definition. I'm working on a presentation for a conference I'm attending next month, and found some images that are under a CC license that allows non-commercial use. I'm not getting paid for the talk itself, but I am doing it as a representative of Techdirt, which is a commercial entity. Is that commercial use? The presentation isn't about our business, though, but about what I usually write about here. Is that non-commercial use? I'm assuming it's non-commercial use, but these days, I have a hard time understanding what the difference is at all, and Haff is right that it's likely to lead to more confusion. The real answer is to simplify CC licenses, not make them even more complex.

Filed Under: commercial use, copyright, creative commons, personal use

Is Putting Change.gov Under Creative Commons Really A Big Deal?

from the help-me,-I'm-missing-something... dept

There's been plenty of attention paid to the news that the website for President-Elect Obama's transition team, Change.gov has been placed under a Creative Commons license, allowing others to make use of the content with attribution. However, I'm a bit hard pressed to see how this actually is a big deal. The whole thing is made a bit odd by the fact that federal government content is not covered by copyright, so anything that comes out of the White House is in the public domain. But, apparently since Obama has not yet been inaugurated, the campaign can still claim copyright on the content. But, why would they? Rather than going with a CC license, why not go all the way and put the content in the public domain? After all, in two months, all such content will be in the public domain anyway? It seems a little odd, counterproductive and unnecessary to add more restrictions to the content than there will be once Obama is actually in office. If the Obama team really wanted to do something meaningful concerning the content on the site, they could follow the advice of Tim O'Reilly and go beyond just putting the content in the public domain and also add revision control, thereby committing to alerting people to any changes to the content. Now, that would be an impressive change.

Filed Under: change.gov, copyright, creative commons, obama, public domain

Does Court Ruling Over Artistic License Conflict With Other Copyright Rulings?

from the getting-into-the-weeds dept

Both Slashdot and Larry Lessig are cheering about a CAFC (Court of Appeals for the Federal Circuit) ruling concerning the scope of various "free" licenses (pdf) like the Artistic License or Creative Commons' licenses. It's an interesting ruling, overturning a lower court ruling. The details are actually connected to a case we wrote about a few years ago, though that was focused on the patent questions related to this case, rather than copyright.

The case involves a guy who created some "free" software that allows users to program model railroad train systems. A company used some of his software in their own commercial offering, and, in doing so, violated the terms of the Artistic License he was using. No one seems to dispute that the Artistic License was violated. The question before the court is what that means -- and whether the end result means that the creator of the original software has a claim on the breach of the license, or if he can sue for copyright infringement. The guy who created the software, Jacobsen, claims that if you violate the Artistic License, then it reverts to copyright infringement. The makers of the commercial software, Katzer/Kamind, counter that there is no copyright claim here, as they merely broke the terms of the Artistic License, not copyright itself. And, in fact, since Jacobsen gives the software away for free willingly, there's no copyright claim at all.

The court sided with Jacobsen, and Slashdot and Lessig are celebrating this (perhaps accurately) as a huge win for alternative licenses such as the Artistic License and Creative Commons Licenses -- basically allowing them to revert to copyright claims if the terms of the license are violated. For supporters of such licenses, it's certainly a good decision. When I first read the decision, though, I was concerned that it seemed to contradict the recent ruling against Universal Music which stated that simply stamping "not for resale" on a CD doesn't give Universal additional rights above and beyond copyright. That ruling seemed like a good decision, too -- but in some ways it could be seen to conflict with this new decision. Though there may also be a way to read them that suggests the decisions agree.

After all, Creative Commons seems to basically do the same thing that stamping "not for resale" does on CDs: it creates a separate license on top of copyright, and then tries to use copyright's defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren't enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.

In the Universal case, the court found that the "not for resale" language wasn't enforceable because there was no "exchange" that resulted in the "license" (also known as "consideration" -- which is usually required for US contracts to be binding): "UMG gives the Promo CDs to music industry insiders, never to be returned. ... Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession." The same is true of Jacobsen's software, as well. The software is given, never to be returned, and the license doesn't require the end user to provide Jacobsen with any benefit in return.

Perhaps the only difference is in what the licenses seek to restrict. That is, in the Universal case, the proposed restrictions are greater than what copyright seeks to restrict (i.e., not allowing resale). In the Jacobsen case, the reserved rights are less than what copyright allows (i.e., you are allowed to copy, but under these conditions). So despite the different situations, in either case, the judgments revert to copyright law to establish the issue: i.e., in the Universal case, it's really an extension of copyright law, whereas in the Jacobsen case, it's carving a hole in copyright law. So, if either license is "broken" you just fall back to copyright law: in the UMG case, you revert and realize copyright law isn't broken by reselling. In Jacobsen, you revert and find that copyright law is broken by the use. However, it would be interesting if some copyright scholars could weigh in on this to make sure that these rulings don't contradict.

If this interpretation of the rulings is correct, then this is definitely a big victory for those using licenses that carve out exceptions to copyright law, but still want to hold copyright law over those who abuse the licenses.

Filed Under: artistic license, copyright, creative commons, free licenses

Why Doesn't Girl Talk Allow Commercial Use?

from the go-big-or-go-home dept

Legal trouble for Girl Talk -- an artist named Greg Gillis who released a "mash up" album using the pay what you want model -- is almost inevitable, but the situation gets even more interesting when you consider how the music is licensed. Girl Talk uses a Creative Commons Attribution-Noncommercial license for Feed the Animals, even though the songs on the album were made by using hundreds samples from other artists. Gillis claims his songs are fair use on the basis of being transformative and because the clips used are very short.

Aside from potential legal claims over the license if the fair use defense fails, why would Gillis -- an artist making commercial use of samples from others -- put a noncommercial restriction on his work? It seems a bit hypocritical. Granted, he does claim that "the CC license does not interfere with the rights you have under the fair use doctrine, which gives you permission to make certain uses of the work even for commercial purposes," but is the noncommercial restriction for other uses really necessary?

First of all, as Mike Masnick pointed out in his critique of a noncommercial copyright, the distinction between commercial and noncommercial use is extremely blurry. Equally blurry in this case is the distinction between transformative and non-transformative use. At what point exactly does a derivative work become transformative? But, more importantly, Mike asks "if someone else is able to do something commercially useful with my content, why should that be a problem?" Girl Talk ought to be a perfect example of this, yet Gillis seems to deliberately limit the possibilities through his choice of license.

Why attempt to limit the positive externalities? Maybe some of the artists sampled on the Girl Talk album will really like a song their music appears in and want to include it somehow on a release of their own, make use of it on their website, etc. Should those artists then be required to pay for the use of a song which includes samples of their own music? Maybe, but it seems like respecting "upstream" would help an artist like Gillis maintain a better relationship with the artists from which he's sampling.

Furthermore, what about people who might do something with the album that's potentially commercially useful for Girl Talk? For example, if someone were to make an interesting remix or video using Girl Talk's music , not only would they be required to refrain from commercial use themselves (unless it was fair use), but Gillis would require their permission to make use of it himself. If he had used a copyleft license like the Creative Commons Attibution-Share Alike, both he and any artists making derivative works would have the ability to monetize their efforts. Instead, derivatives are relegated to the realm of the amateur because, with a noncommercial license, the barriers of a permission culture are still intact for artists trying to make a living from their work. One would hope that Greg Gillis, of all artists, might realize the benefits of removing these barriers, especially on commercial use.

Filed Under: commercial use, copyright, creative commons, girl talk, greg gillis

Turns Out You Can't Sue Creative Commons Because You Didn't Understand The CC License

from the still-cost-$15k dept

A few months ago we wrote about a somewhat bizarre lawsuit where the family of a teenager sued Creative Commons after a photo of the girl was used in an ad campaign by Virgin Mobile Australia. The details were a bit strange, and it appeared that the family (and its lawyer) were a bit confused themselves, leading them to sue parties that were not responsible at all. What happened was that a youth group counselor had taken a photo of the girl and posted it to Flickr with a Attribution 2.0 license -- meaning that anyone could use it, even for commercial purposes, so long as they gave credit for who took the photo. Virgin Mobile Australia then went and used the photo and others (with attribution) in a poster campaign for its mobile phone service. The girl later discovered all this when someone in Australia spotted the ad campaign with the Flickr URLs on the poster, and thought it was interesting enough to take a photo of the ad and put that up on Flickr. Her family then felt that she was being taken advantage of and found a lawyer who sued Virgin Mobile Australia, Virgin Mobile USA and Creative Commons. It's a stretch to think that even Virgin Mobile Australia has done anything wrong here (it followed the terms of the CC license), but there is simply no rationale for suing Virgin Mobile USA (a totally unrelated company to VMA) or Creative Commons. After all, Creative Commons hadn't done anything here other than exist.

If anything, the family could sue the photographer for posting the girl's photo with a CC license without permission -- but, instead, the family included the photographer as a plaintiff in the lawsuit. So, basically, they were suing CC because the photographer didn't understand the license he had chosen and he felt he deserved some money for his own misunderstanding as well. Thankfully, the family and its lawyer seem to have finally (after the fact) taken the time to realize that Creative Commons and Virgin Mobile USA have nothing to do with this lawsuit and have withdrawn the suit on those two firms (I assume the case against Virgin Mobile Australia will still continue). Unfortunately, however, their inability to figure this out before the lawsuit ended up costing Creative Commons approximately $15,000.

Filed Under: creative commons, flickr
Companies: virgin mobile

Creative Commons (And Virgin) Sued For Teen's Photo Being Used In Ad Campaign

from the sue,-sue,-sue dept

Stack writes in to let us know that the family of a teenager in Texas has sued Creative Commons, Virgin Mobile Australia and Virgin Mobile USA because Virgin Mobile Australia happened to use a photo of the girl in an ad campaign in Australia. The photo had been taken by the girl's youth counselor, who posted it on Flickr, with a Creative Commons license saying the photo could be used with attribution (the ad apparently includes the Flickr URL, so it appears to be following the terms). There are some bizarre parts to the story. It's not clear why they're suing Creative Commons, since the photographer (who is apparently suing as well) chose the license in question. If he didn't want to have the photo used, he shouldn't have picked a CC license (or should have picked a more restrictive CC license). It's certainly ridiculous to then blame CC because the guy didn't know what kind of license he was choosing or how it could be used. In fact, the original photo is still using a CC Attribution 2.0 Generic license. You would think before suing the guy would have at least changed the license. It also doesn't make any sense that the family is suing Virgin Mobile USA. It's an entirely separate company from Virgin Mobile Australia. Also, the family says that they're quite upset because people can now "Google" their daughter. Yet, the ad doesn't have her name, and the photo was put online by the youth counselor, so it's not clear how they could be Googling the ad (and, of course, by suing, the family is only drawing a lot more attention to the ad). Finally, the family is complaining that this is defamatory and somehow insulting -- yet it's difficult to see how the ad can be construed as insulting. It's hard to see such a case getting very far -- though, it is interesting to see that Virgin Mobile was using CC Flickr photos in their ad campaign.

Filed Under: creative commons, flickr
Companies: virgin mobile, yahoo