Share the Music — Baptiste Pons via Creative Commons/Flickr.

An international music group claims piracy is responsible for a 30 percent decline in global music sales from 2004 to 2009.

In a report released Thursday the International Federation of the Phonographic Industry calls for increased crackdowns on digital piracy, saying that while sales from digital downloads are up 21 percent from a year ago, 95 percent of all music downloaded is pirated.

The IFPI is promoting two key findings:

• Piracy is responsible for a lack of music investment
  

  In Brazil, music sales fell by 43% between 2005 and 2009, with a disastrous impact on investment in local repertoire. In 2008 there were only 67 full priced local artist album releases by the five major companies in Brazil – just one tenth of the number (625) a decade earlier in 1998.

• Piracy threatens all content producers
  

  Today, however, creative industries including movie, publishing and television, regard “monetising” the online world and addressing digital piracy as their greatest challenges. Illegal streaming and film downloads now account for 40% of the movie piracy problem by volume (MPAA). Illegal distribution of TV content is growing faster than music and movie piracy

I’ll start off simply and put some cards on the table: people should not pirate music. It’s theft. And while not $150,000 per infraction wrong, it is stealing. Simple enough.

That said, I take industry reports such as this with pretty much the same grain of salt I take reports from coal lobbyists on the environmental effects of mountain top strip mining.

Here are a few things we know from outside observers with little to no skin in the game. A 2009 UK report tells us that yes, people are buying less recorded music than before. The report also tells us that people are spending more on music in aggregate (ie., going to concerts, buying swag and yes, buying music as well).

The Canadian government, in turn, issued a report of their own. Result: file sharing has “a positive effect on music purchases among Canadian downloaders.”

In Holland, a 2009 Dutch government report discusses overall societal gains attributable to file sharing.

Similarly, two Harvard Business School economists released a working paper that, in part, analyzed the ongoing effects of file sharing. As Michael Geist summarizes:

The paper takes on several longstanding myths about the economic effects of file sharing, noting that many downloaded songs do not represent a lost sale, some mashups may increase the market for the original work, and the entertainment industry can still steer consumer attention to particular artists (which results in more sales and downloads).

We can go on. A major IFPI claim is that less industry money is invested in new artists. Listen again to what they say about Brazil: “In 2008 there were only 67 full priced local artist album releases by the five major companies in Brazil – just one tenth of the number (625) a decade earlier in 1998.” (Emphasis mine).

The statistic sounds dramatic until you think how much has changed during that ten year period. It’s neither here nor there without contextualization so here’s some contextualization: in that ten year span digital tools emerged that allow more artists and musicians to record, produce and market work on their own without major label involvement.

As the Harvard Business School report notes, cultural creativity isn’t decreasing. Instead, it’s exploding. In 2000, 35,516 albums were released. By 2007 that number reached 79,695 albums, according to Nielsen SoundScan. In film, 3,807 features were created in 2003. That number increased to 4,989 in 2007, according to Screen Digest.

Who’s Buying What

TorrentFreak writes in a critique of the same report that when compared to traditional buyers, music sharers (ie., “pirates”) are:

• 31% more likely to buy single tracks online.
• 33% more likely to buy music albums online.
• 100% more likely to pay for music subscription services.
• 60% more likely to pay for music on mobile phone.

So while “five major companies” might no longer control cultural output, that doesn’t mean that cultural output is decreasing. It simply reflects that the means of production have switched elsewhere. This is a good thing.

While the IFPI might like to think — or imply — that the major labels are the entire music industry. They’re not.

They’re one piece of a continuously expanding pie that includes concerts, licensing, swag and other tie-ins. Unfortunately for the major labels, they’re holding the short end of the stick as this growth happens elsewhere.

Let’s not mistake the end of a one hundred year technological anomaly — the ability of a monopoly to record and distribute music — with a newfound need to wage copyright war across the planet as the IFPI hopes will happen.

This is exactly what the IFPI would like us to do though. It bemoans Spain and its “culture of state-tolerated apathy towards illegal file-sharing,” but enthuses about anti-piracy legislation passed in France, South Korea and Taiwan.

“Other governments, from the UK to New Zealand,” the authors applaud, “are proceeding with the introduction of [similar] legislation.”

The IFPI is smart to bring the entire media into this flawed conversation. By pointing out to their television, film and publishing brethren that they’re all in the same game, they line up sympathetic allies to fight a perceived common enemy.

It’s too bad their premises are misguided from the get go. Even worse that they’ll use flawed arguments to great effect when lobbying governments.

About Aardvark and the Synaptic Web

This article originally appeared on ScribeMedia.org.

Please visit the original to rant, rave or otherwise discuss.

Related posts:

1. Time to Face the Music
2. The Effects of File Sharing, EU Style
3. MySpace Music Hoping to Strike a (new) Chord with Consumers

Sorry everyone, republishing Marilyn’s 1953 Playboy cover violates US copyright law.

In 1978, American copyright changed.

Previously, copyright protection held for 28 years at which point the copyright holder could either renew for one more 28-year “term” or their work entered the public domain. Only 15 percent of creators ever bothered. Most felt there was no longer an economic imperative to do so.

Book authors were especially remiss, renewing a mere seven percent of the time after the initial 28 years passed. The important point to note is that one’s initial copyright lasted 28 years and maxed out at 56 years if one opted to renew.

All that changed in 1978.

That was the year the genius squad got together and increased copyright not a few years, but 67 years. Yes, copyright protection for commercial “work for hire” went from 28 years to 95 years. Better yet, they grandfathered in previous works. Individual copyright (say, for a novel) extended 70 years from the date of an author’s death.

Duke University’s Center for the Study of the Public Domain has a great rundown of works published in 1953 that would have entered the public domain this year were it not for this legal change.

What might you be able to read or print online, quote as much as you want, or translate, republish or make a play or a movie from? How about Casino Royale, Ian Fleming’s first James Bond novel? Fleming published Casino Royale in 1953. If we were still under the copyright laws that were in effect until 1978, Casino Royale would be entering the public domain on January 1, 2010 (even assuming that Fleming had renewed the copyright). Under current copyright law, we’ll have to wait until 2049. This is because the copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as this). All of these works from 1953 will enter the public domain in 2049.

Other great works published in 1953 that would have entered the public domain this year so that you or I or anyone else could remix, remash and remake them in any medium we wanted: Ray Bradbury’s Fahrenheit 451 and James Baldwin’s Go Tell It On the Mountain (a personal favorite).

As the Center writes:

That means that all these examples from 1953 are only the tip of the iceberg. If the pre-1978 law were still in effect, we could have seen 85% of the works created in 1981 enter the public domain on January 1, 2010. Imagine what that would mean to our archives, our libraries, our schools and our culture.

Well — bright side of life — let’s go back 95 years to 1915.

Related posts:

1. French Courts Rule Google Books Violates Copyright
2. Art: Inspiration, Creativity and Ownership
3. Technology: Confronting the Tools of Disruption

At issue is who’s benefiting from the practice. Is it secondary sources that publish the excerpts and perhaps have advertising surrounding it, or is it the primary source that might get extra readers from links back to the original article?

Generally, the excerpts have been considered legal, and for years they have been welcomed by major media companies, which were happy to receive links and pass-along traffic from the swarm of Web sites that regurgitate their news and information.

But some media executives are growing concerned that the increasingly popular curators of the Web that are taking large pieces of the original work — a practice sometimes called scraping — are shaving away potential readers and profiting from the content.

With the Web’s advertising engine stalling just as newspapers are under pressure, some publishers are second-guessing their liberal attitude toward free content.

While fair use hasn’t been settled in our age of digital reproduction, the article misses a significant factor in the entire debate: this is not a zero sum game. Both primary and secondary sources can benefit.

I’ll say at the outset that the practice of reposting articles in their entirety is negligent, wrong and any other negative you might want to apply. Whether it’s illegal is another question, or, put another way, do we want to waste our time and resources making it so? I’ll leave it to those with deeper pockets and legal departments to decide.

But the practice of fair use excerpting, of choosing that which you need to make a point by providing commentary around it and clearly linking back to the source material should not be threatening. It’s a social good that improves our understanding of the issues and ideas that affect our everyday lives.

As I wrote yesterday in a different context, the Danish government commissioned a report that explores the costs and benefits of file sharing on the music, film and gaming industries. In that context, the report’s authors write, “In the music industry, one track downloaded does not imply one less track sold.”

In the same vein, excerpting is file sharing of a type. Instead of using P2P technologies, we use cut and paste. The practical result is sharing, remixing, mashing and providing new and different context to an original.

What the Times misses though is the very simple idea that my reading a paragraph or two of one of its stories on another site does not equal one less reader sold. There are a few possibilities here:

• I read the the original story and I’m now looking for more context elsewhere;
• I never read the story but now that I’m hearing about it elsewhere I’ll go check the original out;
• I never read the original story but am now being exposed to the idea even though I’m not going to read the original;

It’s this third point that gets to the crux of the matter. The publishing industry is obviously in a bind with bankruptcies, layoffs and chaos hitting it on a daily basis. If it’s losing advertising dollars both in print and online, it’s an apparent concern if readers are not actually reading their original content. Or is it?

When I wrote the other day that publishers need new models, I touched on the fact that the central and primary asset they have is not the individual piece of content but the overall intellectual capital the content contributes to. Excerpting promotes that.

The more the blogosphere quotes, links, highlights and otherwise promotes the ideas generated by a primary source, the more valuable that primary source becomes.

It’s now up to the primary source to monetize that resource. Right now, they’re not and to strictly think in advertising terms around a discrete piece of content displays a fundamental lack of imagination in how that monetization can take place.

Instead, publishers as primary sources need to think of complementary and supplementary content and services that they can leverage. This can range from live Webcasts to in person events on the subject. In between are a host of other possibilities.

Important though is losing the fixation on a particular article here an there and instead understanding the forest for the trees.

Again though, it’s not selling the particular content but instead the organization that produces it. Solve that nut and I think we move our publishers back on stable ground.

By file sharing I mean the good, the bad and the ugly in the debate. This includes those in the record industry whose blood reaches a fevered boil at the mere mention of the phrase to their ideological opposites who insist that all content everywhere must, should, will and at all times be free.

As a US citizen, I generally follow only what’s happening here in terms of copyright, file sharing and what in the past I’ve called mental squatting. That, for worse and worse, is how we do things here in America. (Although, in moderate defense, I have been following New Zealand’s recent copyright battles.)

But with a desire to be a bit more worldly in my understanding, I started reading a report commissioned by the Dutch government on the social and economic effects of file sharing on the music, film and gaming industries.

Color me amazed.

US debates circle endlessly around producers and consumers with each reduced to a function of the dollar amount added or subtracted to the entire industry. That is, the argument is generally won or lost on proof that behavior (i.e., file sharing or its prevention) benefits a producing agency such as a record label.

For example, if you can’t demonstrate that file sharing benefits or injures the recording industry, you’ve lost the argument. The goalposts in our US debate are strictly aligned to what positively or negatively affects an industry.

The Dutch go about this differently. They bring in another potential beneficiary. Cleverly enough, they’re called citizens. And what amazes me in this report is the very simple move of bringing in the collective commons as an equally worthy participant in any analyses of whether file sharing harms or benefits society.

The research shows that the economic implications of file sharing for welfare in the Netherlands are strongly positive in the short and long terms. File sharing provides consumers with access to a broad range of cultural products, which typically raises welfare. Conversely, the practice is believed to result in a decline in sales of CDs, DVDs and games.

That the report talks about overall societal welfare is eye opening to begin with. That it recommends that the benefit of such welfare is equal to that of the producing agents is something unheard of in our Stateside debates.

Determining the impact of unlicensed downloading on the purchase of paid content is a tricky exercise. In the music industry, one track downloaded does not imply one less track sold. Many music sharers would not buy as many CDs at today’s prices if downloading were no longer possible, either because they cannot afford it or because they have other budgetary priorities: they lack purchasing power. At the same time, we see that many people download tracks to get to know new music (sampling) and eventually buy the CD if they like it. To the extent that file sharing does result in a decline in sales (substitution), it usually entails a transfer of welfare from producers to consumers. With estimated welfare gains accruing to consumers totalling around €200 million a year in the Netherlands, music producers and publishers suffer turnover losses of at most €100 million a year.

You see what they did there? The emphasis is mine but there’s a “transfer of welfare from producers to consumers.” This is not a dollar amount, although the report’s authors quantify it. Instead, it’s a social good. It’s a cultural product that citizens otherwise would not have access to but can benefit from and are available through file sharing.

The Dutch view this as valuable. Instead of a US debate where dollars lost is a net loss in the zero sum game of US citizens defined as consumers, the authors of the Dutch report suggest that the transfer of — and access to — cultural assets is a societal good.

This is not to say that the report dwells solely on this idea or issue. Instead, it looks at new business models for the music, film and gaming industries where citizens are equal partners in the equation rather than blameworthy pirates to be sued by a nation’s recording industry.

What strikes me though is the Dutch reintroduction of the consumer-as-citizen, and the elevation of that citizenship to equal status with our corporations. It’s an argument lost in US debates on the issue. And one that should be found as we consider content in an age of digital reproduction.

The report can be found here.

The Beatlemania set was all abuzz earlier this week when NRK announced they’d podcast a series called “Our Daily Beatles.” Each segment was to include a three-minute story of every Beatles song recorded, followed by the actual song, resulting in the first ever opportunity to legally download the Fab Four’s music.

It’s not to be. Apparently NRK ran afoul of their licensing agreement. As Rolling Stone points out:

Norwegian radio law states that “NRK can not podcast programs with foreign music if the radio program was broadcast more than four weeks ago.” Since the original broadcasts of “Our Daily Beatles” was in 2007, this turned out to be an issue.

PC World follows up with further details.

According to the Wall Street Journal, the RIAA will continue all current lawsuits but are now trying to strike deals with Internet Service Providers to create a “three strikes” policy against those they allege make copyrighted music available for download.

Under this new strategy, the RIAA will notify ISPs about alleged activity. The ISPs, in turn, will email customers about their infringement. If the customer continues to make files available, the ISP could either slow their access or cut it off completely. (Hat Tip: Electronic Frontier Foundation)

Warner originally made its catalog available to YouTube in September 2006, right before Google purchased the video site and while Universal Music was suing for copyright infringement.

However, Warner claims revenues generated to date are negligible and after months of trying to reach a new licensing deal, it is walking away from negotiations. YouTube began pulling videos Friday night, and wrote in its blog, “Sometimes, if we can’t reach acceptable business terms, we must part ways with successful partners.”

Warner artists include Madonna, Green Day and Frank Sinatra among hundreds. Their publishing group owns the rights to such classics as Happy Birthday to You.

There’s a joke in there somewhere. We’re just trying to find it.

For the uninitiated, fantasy sports lets those of us whose fantasy it is to play or otherwise be involved in professional sports to “own” a make believe team. The “players” on the team are any that belong to a professional league; and one builds a team by drafting and trading players just like real-life sports managers do.

This article originally appeared at ScribeMedia.org.

The success of one’s fantasy team is based on the statistics that the real-life players generate throughout the year.

For example, if I played fantasy baseball, and Red Sox slugger David Ortiz was one of my big boppers, I’d apply his output during his last game along with the rest of the players on my team to generate a score. My opponent would do the same and the winner between me and my opponent would be the collected output that our fantasy players generated in their real world games.

As a side note I’ll add that that if Ortiz really was on my team, I’d be bummed since in real life he recently injured his wrist and has been placed on the disabled list. That means the man known as Big Papi is no longer generating for my fantasy world.

All this is to say that there’s fantasy baseball and fantasy football and fantasy golf, soccer, hockey and even cricket. Sports sites such as ESPN have whole sections dedicated to these fantasy worlds and grown men (yes, mostly men) will argue with life or death intensity over the supposed fantasy value of Player A versus that of Player B.

With 18 million people in the States participating, and numerous sites charging or otherwise monetizing this participation, there’s a lot of money to be had. And for those following the business of all this, Major League Baseball and the Major League Baseball Players Association want a cut of the action.

However, earlier this month, the Supreme Court essentially ended a three-year legal battle between MLB and fantasy sports providers. The case is made bite-sized by Salon’s King Kaufman:

MLB Advanced Media, baseball’s lucrative Internet arm, had refused to renew a license for a St. Louis company called CBC Distribution and Marketing, which runs fantasy leagues. MLBAM, in partnership with the players union, planned to run its own fantasy games at MLB.com, and restrict the number of licenses it granted to a small number of other large sites.

CBC sued, arguing that ballplayers’ identities and stats are in the public domain. Baseball’s argument was essentially that a player’s stats, in connection with his name, are a part of his unique identity just as his face is. It’s not a ridiculous argument, but it lost.

While most reported this as a business and/or legal story, what’s overlooked in the details are two ideas I believe much more interesting, and much more important as well.

First is the entire idea of what content actually is. The second is what happens to content once we figure out what the answer to that very important first question.

Content is a mysterious game. We think of television programs, books and paintings as definitely and deliberately content. It’s something we read, watch and look at. But thinking this way confuses the delivery medium (a film) with the medium itself.

It also leads us to overlook the bits and bytes of our digital culture. For example, the code that creates the software that creates this Web site is content, legible and understandable to those who speak the language. Go through the many files of code that come together to create the page you’re reading these words on and you read a blueprint rather similar to what an architect creates when thinking a building.

Major League Baseball’s argument was fought over the very question of what content is, and who controls it. In their view, generated statistics are part of the sum total of content generated by any given game.

The fact that the New York Mets’ Pedro Martinez pitched 6 innings, struck out 4, walked 2 and gave up 3 earned runs is a fact MLB wants to claim as their own. In essence, they’re saying, these stats are content we’ve created and can assign value to just as this or that painting that hangs in a gallery was created through actions of a painter and is now content with an assigned value. Our content, they appear to say, is not merely the game, or the televised reproduction of that game, but the historical facts, figures and statistics that the game generates as well.

In our day and age where content is simultaneously long-form king and and short-form pauper, there’s a land grab going on by very smart people hoping to monetize both.

Or, perhaps I should say, a mind grab.

That is, while many struggle to figure out business models for content — with even venture capitalists arguing that content itself will eventually be free — all tend to believe and understand that owning or controlling content is in some way very, very important. And lucrative.

And so we see organizations like MLB and the Recording Industry Association of America pushing outwards to lay greater claim over what’s traditionally been seen as their rightful property.

I call this mental squatting, the deliberate attempt to expand one’s hold on content and ideas outwards into the public sphere through copyright, patents, and redefining what the boundaries of content are to begin with.

This is not to say that copyright, patents, trademarks and the like don’t serve an important purpose. Instead, mental squatters attempt to expand their private rights against the commons by making things like copyright ever more stringent, ever more exclusive, and ever more punitive to those who they believe infringe upon them. And if we spin out the MLB argument that the historical results of their games constitutes their content as opposed to being part of the public record, we stumble upon some absurdities.

For example, should newspapers license the right to publish stats from previous night’s games? Should Michael Lewis have licensed the right to use stats when he wrote Moneyball, the much quoted book on managerial innovation in the Major Leagues? Should the cottage industry of statisticians and hard core fans license stats from MLB if they want to publish a comparative study of Babe Ruth, Jackie Robinson, Willie Mays and my now injured David Ortiz?

I don’t think so either.

But this is just one example of many that revolve around issues of how content is created, distributed, bought and sold.

It was just the other day that the Associated Press tried to determine how bloggers could quote and attribute them, and just last month that Malcom Gladwell celebrated a group that kicks back, thinks big ideas and then files patents on them in search of future revenue.

And it will be tomorrow, the next day or the next that we have another battle between corporations and the public over who has control and rights over the creation, manipulation, distribution and monetization of ideas, culture and technology.

Stay tuned. There’s squatting in the public commons but there’s still ambiguity over where those commons begin and end.