Listen to the Stopped Clock

by on September 29, 2006 · 64 comments

I’ve written before that Chris Castle is a technically clueless lawyer whose blog specializes in juvenile and mean-spirited insults of his ideological opponents. He and I clearly don’t see eye to eye on a lot of copyright-related subjects. Yet it seems that even a stopped clock is right once in a while:

I believe there is a good business case that can be made for selling in mp3. At the risk of stating the obvious, I would point out that the iPod, and almost every music player in the market, supports mp3. So the reason to sell in mp3 is not because DRM is bad. I completely disagree with Professor Lessig’s radical fringe that opposes DRM in all forms, and unlike many in the fringe, I support a copyright owner’s decision to sell in any format they wish–DRM or non-DRM.

But the business argument over selling in the unprotected mp3 format shouldn’t have anything to do with how you feel about DRM. The reason you sell in mp3, and the reason you sell in Fairplay, Windows Media and any other common format is because–they are common formats. A lot of people use them. It just happens that more people use mp3 than use Windows Media or Fairplay.

If a copyright owner sold an mp3 file, it could be suitably watermarked to carry identifiers that would allow accounting if an online service wanted to sell the tracks. The point is that if you sell in mp3 you are not giving a fan anything that they couldn’t make themselves if they bought a CD and ripped it.

I think he over-estimates the effectiveness of watermarking technologies. And Castle is wrong when he says that Lessig is in the “radical fringe” that opposes DRM in all of its forms. He’s not, much to my disappointment. But otherwise, this analysis is dead on. And given that Castle is clearly not an apologist for piracy or a critic of the music industry, maybe the music industry will listen to him.

I wonder if it’s occurred to Castle that it’s not a coincidence that MP3 is more widely deployed than FairPlay and Windows Media. The whole point of DRMed formats is to limit interoperability with third party devices. Hence, we shouldn’t be surprised that DRM is plagued by incompatibilities.

Update: I struck out the bit about Lessig’s attitude toward DRM, which on re-reading Lessig’s post clearly isn’t right. What I should have said is that Lessig is more sympathetic than me to the notion that some DRM is better than others, and that we should therefore settle for the least-bad DRM we can get, rather than focusing on persuading publishers to ditch it altogether.

  • Chris Castle

    Thanks, Tim, if you’re really interested you can find a publications list on my website. This list goes back about 20 years, so pre-dates Lessig. “Justify Your Thug: A Critique of Professor Lessig’s Defense of DJ Danger Mouse” ought to be of interest to you, I would imagine.

    I would also point you to my blog “Carefully Cowriting without Creative Commons” for a review of the incredibly shoddy legal work that is the CC “deed” or whatever other grandiose term the self-serving have coined for the self-absorbed this week.

    I would point out that it appears–appears–to be a misnomer to refer to Lessig as a “lawyer”. A “lawyer” is someone who is admitted to practice law in at least one jurisdiction. Lessig’s name doesn’t show up in the lawyer rolls California, New York or DC. He may be admitted somewhere else, but I have never seen him list the customary bar number on any of his filings in litigation. So it may be more appropriate to refer to him as a “law professor” or as a “law school graduate” as “lawyer” means he took and passed a bar exam. And then there’s that nasty bit about taking an oath to uphold the Constitution.

    This would be consistent with the complete absence of any practical reality in the CC paper. However, the problem goes much further than the ivory tower.

    The problem that I have with Lessig, and that senior policy makers also have with Lessig I might add, is that he foists onto an unsuspecting public a extraordinarily poorly thought out “code” that only works–if it works at all–for true, “sing in the shower” amateurs. And that only because it’s unlikely to ever be contested by another shower singer.

    Yes, it’s true that some professional artists have used it, but if you actually look at what they actually did, it’s a very, very narrow subset of their work. In fact, I’ve only been able to find a single work for each of the “big” artists using the “deed”. I will definitely hand it to Creative Commons that they have managed to shroud themselves in revolutionary zeal, which is–of course–the PR value that attracts rock stars of a certain age to their “cause”.

    The people who are helped the most by Creative Commons are…anybody, anybody…Creative Commons. Just ask the MacArthur Foundation. And THAT’s the problem I have with the entire crew. Which is, by the way, the same problem I have with certain record companies, publishers, managers–they perpetuate the exploitative practices of the “old days”.

    One thing I don’t have to put up with from old school guys is the sactimonious twaddle spewing from the Lessig-ists. At least the old guys are honest thieves.

    I’ll take PT Barnum over Larry Lessig any day of the week.

  • http://www.techliberation.com/ Tim

    Chris,

    Your article “Carefully Co-writing without Creative Commons” doesn’t appear to be a critique of the creative commons license so much as an extended exercise in sneering at the CC license. You tell people to read the license, yet you appear not to have read the license yourself–or if you did, you couldn’t be bothered to make a good-faith effort to interpret its terms.

    And then there are cases where your criticisms appear to be completely off-base. For example, you state:

    The first problem with Creative Commons is there is no Creative Commons “legal code” for a song. Given that Creative Commons and their fellow travelers the Electronic Frontier Foundation, Public Knowledge and other front groups don’t have a clue about the music business for one thing and what a song is for another, this is not surprising.

    If you look at an actual creative commons license, and you’ll find that the word “song” doesn’t appear once in it, whereas the word “recording” appears three times, and the license specifically mentions performance royalties, mechanical rights, and statutory royalties. Now, I’m not a lawyer, so I don’t know if those provisions are well-crafted. Maybe they have loopholes big enough to drive a truck through. But if so, you never get around to explaining what they are.

    Later in the post, you write:

    It is also not clear to me if the “original author” retains any rights under a Creative Commons license. For example, if the “original author” puts the work in what is effectively the public domain, does that mean that the original author can still exploit the work commercially? Or more accurately, why would the “original author” want to exploit the work commercially if everyone else could use it for free? I don’t know, but if anyone figures it out, please let me know.

    I find it hard to believe you’re really unaware of the fact that the Creative Commons license has a non-commercial license option that allows personal use but requires the author’s permission to exploit the work commercially. Moreover, the question of which rights are retained by the author is not a mystery–it’s spelled out quite clearly in the license itself. Now, maybe you think the terms of the contract reserving rights to the author have loopholes or other problems, but to this non-lawyer’s eye, it appears to state pretty clearly which rights are reserved by a CC license. It strikes me as disingenuous to pretend these terms simply don’t exist.

    In short, it’s obvious you don’t like the CC license, but it’s not clear why. Most of your arguments are at best unsubstantiated and at worst downright misleading.

    I can’t find your “thugs” article. Do you have a link?

  • Chris Castle

    Thanks, Tim, if you’re really interested you can find a publications list on my website. This list goes back about 20 years, so pre-dates Lessig. “Justify Your Thug: A Critique of Professor Lessig’s Defense of DJ Danger Mouse” ought to be of interest to you, I would imagine.

    I would also point you to my blog “Carefully Cowriting without Creative Commons” for a review of the incredibly shoddy legal work that is the CC “deed” or whatever other grandiose term the self-serving have coined for the self-absorbed this week.

    I would point out that it appears–appears–to be a misnomer to refer to Lessig as a “lawyer”. A “lawyer” is someone who is admitted to practice law in at least one jurisdiction. Lessig’s name doesn’t show up in the lawyer rolls California, New York or DC. He may be admitted somewhere else, but I have never seen him list the customary bar number on any of his filings in litigation. So it may be more appropriate to refer to him as a “law professor” or as a “law school graduate” as “lawyer” means he took and passed a bar exam. And then there’s that nasty bit about taking an oath to uphold the Constitution.

    This would be consistent with the complete absence of any practical reality in the CC paper. However, the problem goes much further than the ivory tower.

    The problem that I have with Lessig, and that senior policy makers also have with Lessig I might add, is that he foists onto an unsuspecting public a extraordinarily poorly thought out “code” that only works–if it works at all–for true, “sing in the shower” amateurs. And that only because it’s unlikely to ever be contested by another shower singer.

    Yes, it’s true that some professional artists have used it, but if you actually look at what they actually did, it’s a very, very narrow subset of their work. In fact, I’ve only been able to find a single work for each of the “big” artists using the “deed”. I will definitely hand it to Creative Commons that they have managed to shroud themselves in revolutionary zeal, which is–of course–the PR value that attracts rock stars of a certain age to their “cause”.

    The people who are helped the most by Creative Commons are…anybody, anybody…Creative Commons. Just ask the MacArthur Foundation. And THAT’s the problem I have with the entire crew. Which is, by the way, the same problem I have with certain record companies, publishers, managers–they perpetuate the exploitative practices of the “old days”.

    One thing I don’t have to put up with from old school guys is the sactimonious twaddle spewing from the Lessig-ists. At least the old guys are honest thieves.

    I’ll take PT Barnum over Larry Lessig any day of the week.

  • http://www.techliberation.com/ Tim

    Chris,

    Your article “Carefully Co-writing without Creative Commons” doesn’t appear to be a critique of the creative commons license so much as an extended exercise in sneering at the CC license. You tell people to read the license, yet you appear not to have read the license yourself–or if you did, you couldn’t be bothered to make a good-faith effort to interpret its terms.

    And then there are cases where your criticisms appear to be completely off-base. For example, you state:

    The first problem with Creative Commons is there is no Creative Commons “legal code” for a song. Given that Creative Commons and their fellow travelers the Electronic Frontier Foundation, Public Knowledge and other front groups don’t have a clue about the music business for one thing and what a song is for another, this is not surprising.

    If you look at an actual creative commons license, and you’ll find that the word “song” doesn’t appear once in it, whereas the word “recording” appears three times, and the license specifically mentions performance royalties, mechanical rights, and statutory royalties. Now, I’m not a lawyer, so I don’t know if those provisions are well-crafted. Maybe they have loopholes big enough to drive a truck through. But if so, you never get around to explaining what they are.

    Later in the post, you write:

    It is also not clear to me if the “original author” retains any rights under a Creative Commons license. For example, if the “original author” puts the work in what is effectively the public domain, does that mean that the original author can still exploit the work commercially? Or more accurately, why would the “original author” want to exploit the work commercially if everyone else could use it for free? I don’t know, but if anyone figures it out, please let me know.

    I find it hard to believe you’re really unaware of the fact that the Creative Commons license has a non-commercial license option that allows personal use but requires the author’s permission to exploit the work commercially. Moreover, the question of which rights are retained by the author is not a mystery–it’s spelled out quite clearly in the license itself. Now, maybe you think the terms of the contract reserving rights to the author have loopholes or other problems, but to this non-lawyer’s eye, it appears to state pretty clearly which rights are reserved by a CC license. It strikes me as disingenuous to pretend these terms simply don’t exist.

    In short, it’s obvious you don’t like the CC license, but it’s not clear why. Most of your arguments are at best unsubstantiated and at worst downright misleading.

    I can’t find your “thugs” article. Do you have a link?

  • http://music-tech-policy.blogspot.com Chris Castle

    Since you brought it up–the most fundamental, a priori distinction that a new music lawyer must understand is that in each sound recording there are two copyrights: the copyright in the sound recording, the circle p, and the copyright in the musical work that is embodied in the sound recording, the circle c. The circle p and circle c are frequently owned by different people or companies.

    Now you should be able to stop right there and see that if Creative Commons catagorizes their licenses based on FILE TYPE as opposed to COPYRIGHT TYPE, you will probably get the WRONG result much of the time, meaning that there will be no proper treatment of recording and song in the grant of rights. In fact, you will get the wrong result so frequently that it’s almost not worth talking about the random instances where you get it right, unless you’re drafting for monkeys with dartboards. Which I’ve never been asked to do.

    This is why music lawyers and copyright lawyers find the whole Creative Commons license saga both laughable and scary.

    In case it’s not obvious–talking about a “mechanical rights” in an “audio” license that doesn’t address the circle c copyright is GIBBERISH. First of all, “mechanical right” is kind of a ham handed way to describe the reproduction right of the owner of the copyright in the musical work. It is a term of art, true, but why use an undefined term of art in a license that is to be used largely by laypeople. It is also not a great way to deal with a grant of rights in a global license that is designed to be applicable in any country of the world.

    More importantly–why use a term of art applicable to songs in a license for “AUDIO”. A fair reading of the CC audio license is that it is intended for recordings. So why talk about mechanicals in a license for recordings?

    I’m sure everyone’s eyes are glazing over right about now but that is my point. It’s not the unified field theory, but it’s complex, inside baseball stuff, and the CC license simply does not work.

    To coin a phrase: You’re fired. Or rather: They’re fired. I don’t expect you, Tim, to take the time to figure this stuff out, any more than I expect an artist or writer to do the same. But I do expect more–much, much more–of the folk from the Google Law School.

    It would have been so easy for the Creative Commons drafters to say “Song License” and “Recording License”. They didn’t. Now what might have been the cause of that failure? Aside from there being a fine line between stupid and clever. The only answer I can come up with is that they thought they understood, and when they found out they were wrong–which I firmly believe they now know–they are too embarassed to admit it and don’t know how to fix it.

    The point I am making about what rights the original author retains is more directed (as is the article) at co-writes. Now, trust me enough to tell you that co-writes are very, very, very common in the music industry as any major (or minor) dude will tell you.

    The Creative Commons license simply does not address this reality. It’s just not there. Without intending to cast aspersions, I will tell you that I think the reason it’s not there is that the entire Creative Commons concept would not work, or certainly would not scale, unless all the co-writers agreed to the CC license. And since it’s hard to get co-writers to agree on splits much less license terms, why give them the chance?

    The point of my article is that no one should co-write with anyone who intends to use a Creative Commons license, in any of its species, unless they too intend to go along with each CC license. The “original author” of a co-written work is ALL the writers. The CC license does not make this distinction. So how can anyone know with certainty what rights each co-writer–i.e., the “original author”–retains unless all co-writers are party to the CC license which doesn’t provide for co-writers? Particularly when this issue is not explained at all by Creative Commons or ever addressed in the license. The point I make is that I find it confusing. Maybe you don’t, but I do. But I’m just a country lawyer and I’m not as smart as you city fellers.

    I think it’s pretty safe to say that anyone TAKING a CC license would have no idea if there were any co-writers or what they thought. The licensee would be pretty innocent, which makes it all the worse.

    The way that the music industry has solved the co-writer problem for, oh say a couple hundred years or so, is to have an administration agreement between or among co-owners of copyright that applies during the copyright term. It would have been very simple for Creative Commons to post a simple administration agreement, or even explain the co-writer issues in the license itself. But that would require co-authors to “sign” a click through agreement which is an issue that has kind of a dearth of case law. Or–and here’s a shocker–print it out and sign it.

    Ooopsie.

    So–there is a difference between Creative Commons the organization which I hear receives a lot of cash–and the Creative Commons license. The idea of a gratis license is certainly nothing new, but the idea of empowering Lawrence Lessig by giving away your works is kind of a new, new thing.

    These are not arguments, by the way, they are facts. And I’m not the only one bothered by them or keeping an eye on the situation in case government intervention is needed.

    An argument would be “I think CC is bad/good because writers should/shouldn’t be able to give their works away to help Lessig get grants and here’s why…” I take no position on whether the idea of the CC license is good or bad, anymore than I take a position on whether a copyright owner should be able to grant a free license on their own as copyright owners have been able to do for several hundred years before Creative Commons came along. I am trying to understand its effects as drafted–I’m talking facts here. A fact is–the CC license is sloppy and can have unintended consequences, so co-writing songwriters should have an agreement amonst themselves not to use it, just like they can, and frequently do, have an agreement amongst themselves not to license for hygiene products.

    The “thug” article was presented at the Future of Music Policy Summit in Washington, DC a few years ago and I can email you a copy offlist if you like.

  • http://www.techliberation.com/ Tim

    Please do–tlee -at- showmeinstitute.org

  • http://music-tech-policy.blogspot.com Chris Castle

    Since you brought it up–the most fundamental, a priori distinction that a new music lawyer must understand is that in each sound recording there are two copyrights: the copyright in the sound recording, the circle p, and the copyright in the musical work that is embodied in the sound recording, the circle c. The circle p and circle c are frequently owned by different people or companies.

    Now you should be able to stop right there and see that if Creative Commons catagorizes their licenses based on FILE TYPE as opposed to COPYRIGHT TYPE, you will probably get the WRONG result much of the time, meaning that there will be no proper treatment of recording and song in the grant of rights. In fact, you will get the wrong result so frequently that it’s almost not worth talking about the random instances where you get it right, unless you’re drafting for monkeys with dartboards. Which I’ve never been asked to do.

    This is why music lawyers and copyright lawyers find the whole Creative Commons license saga both laughable and scary.

    In case it’s not obvious–talking about a “mechanical rights” in an “audio” license that doesn’t address the circle c copyright is GIBBERISH. First of all, “mechanical right” is kind of a ham handed way to describe the reproduction right of the owner of the copyright in the musical work. It is a term of art, true, but why use an undefined term of art in a license that is to be used largely by laypeople. It is also not a great way to deal with a grant of rights in a global license that is designed to be applicable in any country of the world.

    More importantly–why use a term of art applicable to songs in a license for “AUDIO”. A fair reading of the CC audio license is that it is intended for recordings. So why talk about mechanicals in a license for recordings?

    I’m sure everyone’s eyes are glazing over right about now but that is my point. It’s not the unified field theory, but it’s complex, inside baseball stuff, and the CC license simply does not work.

    To coin a phrase: You’re fired. Or rather: They’re fired. I don’t expect you, Tim, to take the time to figure this stuff out, any more than I expect an artist or writer to do the same. But I do expect more–much, much more–of the folk from the Google Law School.

    It would have been so easy for the Creative Commons drafters to say “Song License” and “Recording License”. They didn’t. Now what might have been the cause of that failure? Aside from there being a fine line between stupid and clever. The only answer I can come up with is that they thought they understood, and when they found out they were wrong–which I firmly believe they now know–they are too embarassed to admit it and don’t know how to fix it.

    The point I am making about what rights the original author retains is more directed (as is the article) at co-writes. Now, trust me enough to tell you that co-writes are very, very, very common in the music industry as any major (or minor) dude will tell you.

    The Creative Commons license simply does not address this reality. It’s just not there. Without intending to cast aspersions, I will tell you that I think the reason it’s not there is that the entire Creative Commons concept would not work, or certainly would not scale, unless all the co-writers agreed to the CC license. And since it’s hard to get co-writers to agree on splits much less license terms, why give them the chance?

    The point of my article is that no one should co-write with anyone who intends to use a Creative Commons license, in any of its species, unless they too intend to go along with each CC license. The “original author” of a co-written work is ALL the writers. The CC license does not make this distinction. So how can anyone know with certainty what rights each co-writer–i.e., the “original author”–retains unless all co-writers are party to the CC license which doesn’t provide for co-writers? Particularly when this issue is not explained at all by Creative Commons or ever addressed in the license. The point I make is that I find it confusing. Maybe you don’t, but I do. But I’m just a country lawyer and I’m not as smart as you city fellers.

    I think it’s pretty safe to say that anyone TAKING a CC license would have no idea if there were any co-writers or what they thought. The licensee would be pretty innocent, which makes it all the worse.

    The way that the music industry has solved the co-writer problem for, oh say a couple hundred years or so, is to have an administration agreement between or among co-owners of copyright that applies during the copyright term. It would have been very simple for Creative Commons to post a simple administration agreement, or even explain the co-writer issues in the license itself. But that would require co-authors to “sign” a click through agreement which is an issue that has kind of a dearth of case law. Or–and here’s a shocker–print it out and sign it.

    Ooopsie.

    So–there is a difference between Creative Commons the organization which I hear receives a lot of cash–and the Creative Commons license. The idea of a gratis license is certainly nothing new, but the idea of empowering Lawrence Lessig by giving away your works is kind of a new, new thing.

    These are not arguments, by the way, they are facts. And I’m not the only one bothered by them or keeping an eye on the situation in case government intervention is needed.

    An argument would be “I think CC is bad/good because writers should/shouldn’t be able to give their works away to help Lessig get grants and here’s why…” I take no position on whether the idea of the CC license is good or bad, anymore than I take a position on whether a copyright owner should be able to grant a free license on their own as copyright owners have been able to do for several hundred years before Creative Commons came along. I am trying to understand its effects as drafted–I’m talking facts here. A fact is–the CC license is sloppy and can have unintended consequences, so co-writing songwriters should have an agreement amonst themselves not to use it, just like they can, and frequently do, have an agreement amongst themselves not to license for hygiene products.

    The “thug” article was presented at the Future of Music Policy Summit in Washington, DC a few years ago and I can email you a copy offlist if you like.

  • http://www.techliberation.com/ Tim

    Please do–tlee -at- showmeinstitute.org

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    With all this hoopla over absolute values, what I gather most is that folks won’t mind sub-par entertainment in the case that their policy wishes come true, and the only producers with incentive to undertake creative and productive work are those that currently HAVE TO GIVE THEIR STUFF AWAY FOR FREE b/c nobody will buy it.

    Well, once again, the issue of priorities comes up. If you ask me to chose between the bill of rights, and the preconceived needs of a certain business sector to NOT evolve and adapt to a changinging market, I will chose to retain my rights.

    And I would add that many are underestimating the ingenuity of people to overcome obstacles. A good example is the movie industry, which complained about the VCR. What we are seeing no is more of the same.

    Enigma, actually, people have asserted patents over MP3s, although so far those people haven’t made a serious effort to stamp out non-commercial uses of the format.

    Hey. Tim! read the whole post, carefully:


    No it doesn’t “just happen” mp3 was perceived as open format, and no one had asserted patnets on the technology, or implemented DRM. Those are the reasons mp3 was successful.

    I do realize that after the .mp3 file format become a standard, someone had started asserting patent rights (which has given some very limited traction to the ogg vorbis format, BTW)

  • http://enigmafoundry.wordpress.com eee_eff

    With all this hoopla over absolute values, what I gather most is that folks won’t mind sub-par entertainment in the case that their policy wishes come true, and the only producers with incentive to undertake creative and productive work are those that currently HAVE TO GIVE THEIR STUFF AWAY FOR FREE b/c nobody will buy it.

    Well, once again, the issue of priorities comes up. If you ask me to chose between the bill of rights, and the preconceived needs of a certain business sector to NOT evolve and adapt to a changinging market, I will chose to retain my rights.

    And I would add that many are underestimating the ingenuity of people to overcome obstacles. A good example is the movie industry, which complained about the VCR. What we are seeing no is more of the same.

    Enigma, actually, people have asserted patents over MP3s, although so far those people haven’t made a serious effort to stamp out non-commercial uses of the format.

    Hey. Tim! read the whole post, carefully:


    No it doesn’t “just happen” mp3 was perceived as open format, and no one had asserted patnets on the technology, or implemented DRM. Those are the reasons mp3 was successful.

    I do realize that after the .mp3 file format become a standard, someone had started asserting patent rights (which has given some very limited traction to the ogg vorbis format, BTW)

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