Re: [microsound] let the music play

[vze26m98 <vze26m98@xxxxxxxxxxxxx>]

A number of others have commented on this proposal and what I have to
say doesn't really advance upon their fine insights.

But I find EFF's blurring of history to be so shoddy that I am angered
and extremely suspicious of their motives.

They say:

> Voluntarily creating collecting societies like ASCAP, BMI and
> SESAC was how songwriters brought broadcast radio in from the
> copyright cold in the first half of the twentieth century. 
> 
> After trying to sue radio out of existence, the songwriters
> ultimately got together to form ASCAP (and later BMI and SESAC).
> Radio stations interested in broadcasting music stepped up, paid
> a fee, and in return got to play whatever music they liked, using
> whatever equipment worked best. 

This is a very warped picture of the history of copyright and the disk
jockey in radio.

ASCAP was founded by Victor Herbert in 1914, almost 12 years before
"radio" was the chic Xmas gift in America. It was founded to protect the
copyrights of artists and composers and was not allied with the music
industry of the time, which was based on the sale of sheet music for
professional and amateur performance.

Further, the real turning point in radio broadcast vis-a-vis recorded
music came in 1940 with the Supreme Court's refusal to review RCA v.
Whiteman.

Paul Whiteman, Bing Crosby and others, who made their income (as did
most celebrity entertainers) via "live" appearances, had stamped their
78s with "NOT LICENSED FOR RADIO BROADCAST" and backed up their
assertion with litigation.

As I'm sure you're all guessing, radio giant RCA brought suit and the
Federal Courts ruled that the warnings were with out legal significance.
This was the key legal battle that established the role of the disk
jockey and juke box as the music machines of the 2nd half of the 20th
century.

So it was actually the "violators," in this case a major U.S.
corporation, that got the "artists" to back down. Hardly the rosy (and
inverted) picture that the EFF offers!

In 1941, the broadcast industry refused to pay higher royalties for
ASCAP published music boycotted ASCAP published music on the airwaves.
Because BMI, the industry's own copyright clearing house controlled so
little popular music, radio listener were treated to endless repetitions
of Stpephen Foster's "Jeannie with the Light Brown Hair," for example.
Having been written around 1850, it was in the public domain!

But their boycott brought some artists around to publishing with both
ASCAP and BMI. A great way to with creatives over to your organization!

On the other side, the American Federation of Musicians halted, by
unamimous vote at their annual convention, the making of recordings.
This boycott came to an end after two years (1943/44) when the largest
labels Decca and RCA-Victor (note RCA again!) agreed to establish a
"welfare fund" for musicians.

As we can see from the above, the broadcast industry tended to domminate
everything it touched. It's ownership of the recording industry was a
virtual monopoly, and in the 1940's, it was moving into the area of
artist bureaus as well. BMI's role as a clearing house grew because it
was sponsored by the broadcast industry, and not by the artists and
composers of ASCAP. This came to a head in 1941 with the Justice
Department signing consent decrees with BMI and ASCAP to limit their
competitive practices.

(In effect calling off the fight and allowing "both" to survive for the
good of the public. So who won that one?)

(Most of this is covered brilliantly in Eric Barnouw's _History of
Broadcasting_. I'd recommend it, and the study of history, to anyone
working in this area of copyright and fair use.)

> Today, the performing-rights societies ASCAP and BMI collect
> money and pay out millions annually to their artists. Even though
> these collecting societies get a fair bit of criticism, there's
> no question that the system that has evolved for radio is
> preferable to one based on trying to sue radio out of existence
> one broadcaster at a time. 

Let's look at the above EFF quote. First, they conveniently lump the
artist-sponsored and corporate-sponsored organizations together, and
then turn history on its head by asserting that somehow ASCAP and the
AFM had the vast power of corporate America on the run.

> Figuring out what is popular can be accomplished through a mix of
> anonymously monitoring what people are sharing (something
> companies like Big Champagne and BayTSP are already doing) and
> recruiting volunteers to serve as the digital music equivalent of
> Nielsen families. Billions in television advertising dollars are
> divided up today using systems like this.

This is also a complete misreading of what's going on in broadcast
advertising. The Neilsen ratings establish a statistically accurate
estimate of eyeballs/earballs for programming that becomes the basis for
a NEGOTIATION between broadcaster and advertiser on the PRICE of a
minute of airtime.

Broadcasters log the date and time of each advertisement aired, and also
each record played, as the basis for the actual contract payments.
Advertisers and artist bureaus don't accept Nielsen estimates for the
basis of ad payments or royalty receipts.

I find the idea of limited anonymous monitoring a chilling one.

> ISPs could bundle the fee into their price of their broadband
> services for customers who are interested in music downloading.
> After all, ISPs would love to be able to advertise a broadband
> package that includes "downloads of all the music you want."

This, as several of you have pointed out, is where the crux of the EFF's
argument lies for me. This sets up the ISP as a revenue conduit between
"end-user" and "content-provider" that ultimately empowers the ISP to
deliver web access as a commodity modeled on the earlier broadcast
formats of the mass audience. This seems to me to be one more step along
the road to the loss of the freedoms that some of us (that can afford
web access) enjoy.

To me, it's a wonderful suggestion to any larger corporation that wants
destroy the point-to-point, two way access principle of the Internet and
substitute a check-out counter and cash register.

I'm looking forward to renting my Internet access through Microsoft,
Sony or the Disney Corporation. Sheesh!

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