What’s the future of musician income? Crispin guitarist AJ looks on. Photo (CC-BY-ND) billaday/Bill Selak.

An ASCAP Political Action Committee fundraising letter that seeks to vilify advocacy positions of organizations like Creative Commons has been circulating the Web. As I noted in a separate story, it’s not exactly news that ASCAP has taken issue with the licenses Creative Commons advocates. Now, however, ASCAP’s legislative advocacy arm also argues in the letter that the advocacy organization Electronic Frontier Foundation is also an enemy of artists getting paid. The EFF hasn’t made a public statement about the issue, but in a response to CDM, an EFF spokeperson says the letter “mischaracterizes” her organization.

“They imply in that letter that the EFF don’t want artists to get paid for their work,” says Rebecca Jeschke, EFF spokesperson. “For years, we’ve had a proposal for Voluntary Collective Licensing,” she says, a scheme by which users of file sharing services could contribute to funds for artists. She says the EFF has been working on the issue since 2003. “We’re interested in making sure that there’s a balance, that copyright respects the rights of the creators but also innovators and speakers, and that [the doctrine of] fair use rights [a provision of US Copyright Law] are respected.”

For more on EFF’s proposals on voluntary collective licensing, see the organization’s 2008 white paper. Ironically, the proposal explicitly cites ASCAP and similar organizations as their model for how file sharing collections could work:
A Better Way Forward: Voluntary Collective Licensing of Music File Sharing

The Precedent: Broadcast Radio
It has been done before.

By voluntarily creating collecting societies like ASCAP, BMI and SESAC, songwriters brought broadcast radio in from the copyright cold in the first half of the 20th century.

What would cause ASCAP to lash out at EFF in the first place? While the EFF advocates on a number of issues unrelated to ASCAP, including privacy, government transparency, and free speech, it conflicts with some ASCAP positions in some of its recent intellectual property work. For instance, in regards to the case of United States of America versus ASCAP, EFF has criticized ASCAP in court battles over whether mobile phone ringtones should be licensed as performances, and thus subject to performing royalty collections. In legal analysis on EFF’s website last year, intellectual property lawyer Fred von Lohmann described ASCAP in harsh terms:

ASCAP (the same folks who went after Girl Scouts for singing around a campfire) appears to believe that every time your musical ringtone rings in public, you’re violating copyright law by “publicly performing” it without a license. This will doubtless come as a shock to the millions of Americans who have legitimately purchased musical ringtones, contributing millions to the music industry’s bottom line. Are we each liable for statutory damages (say, $80,000) if we forget to silence our phones in a restaurant?

ASCAP Wants To Be Paid When Your Phone Rings [EFF Deeplinks]

There’s no evidence I could find that any EFF position is advocating that music “should be free,” and ASCAP isn’t clear in the letter about either what EFF policies it opposes, or even what the legislative agenda ASCAP themselves are advocating – and for which they want money. ASCAP’s legislative site is also vague, with a link to a legislative timeline that’s now 12 years out of date, before the popularity of MP3s, Napster, iTunes, iPods, and so on. Legislative recommendations made in March to the US government range from the finer points of international trade policy and enforcement in countries of China to ASCAP talking about their anti-piracy mascot for 10-17-year-old kids, skateboard-wielding “Donny the Downloader.”

ASCAP had not yet responded to CDM’s request for comment; I will follow up with them. ASCAP does, however, have a record of a advocating tougher intellectual property enforcement, including harsher penalties and monitoring.

EFF policy is clearer, however: mandatory monitoring and penalties for Internet Service Providers and mass lawsuits don’t work, says Jeschke. And, she says, that means they also don’t work for artists. “The way, for example, the RIAA has [litigated] in the name of protecting copyright hasn’t really gotten anybody paid. They gave up their lawsuit scheme. The lawsuit campaign just kept going but file sharing continued unabated.”

The EFF is arguing Wednesday in federal court against mass lawsuits. Despite the fact that the music industry dropped the approach, filmmakers of movies like “The Hurt Locker” are now going the same route:
EFF Argues Against Mass Copyright Infringement Lawsuits in Wednesday Hearing: Predatory Suits Improperly Lump Thousands of Defendants Together

Monitoring ISPs and blocking peer-to-peer file sharing, as a recent call from a number of advocacy organizations including ASCAP advocates, is also problematic, she says. When it comes to ISP monitoring, “There are clearly privacy implications for lots of people, in addition to price implications, if ISPs need to step up their enforcement.” Even worse, she says, are policies that would take away users’ Internet access if they are deemed guilty of infringement. “Most of these three strikes policies are three accusations — not three trials where you’re found guilty of infringement. People get caught in that dragnet all the time. Taking away someone’s internet access is a really big thing, and it shouldn’t happen based on three strikes.”

Since even Jeschke acknowledges that music file sharing continues, though, what about artist income? If enforcement isn’t the answer, what is? Voluntary collective licensing is still the EFF’s prescription, says Jeschke. “There will always be some new technology,” she says. “Instead of trying to put fingers in the dam and styming innovation, we need to find ways of getting artists paid.”

In doing so, though, so long as ASCAP sees the EFF as “Copyleft” advocates who only want “free music,” and EFF analysts see ASCAP as the organization confronting Girl Scouts, it’s hard to see these two organizations collaborating on solutions any time soon.

  • james

    that voluntary collective licensing thing in the link is pretty well argued isn't it? the idea of imposing that on all filesharing – in the same way it's imposed on and radio etc, is good, until you look back at that infographic from a couple of months back showing how many plays it takes to make a living wage..

    and that's where it falls down, the EFF's idea, if implemented, by legitimising file-sharing and would effectively kill (by undercutting) all the existing revenue streams artists have where they get paid about $.50 per person who wants to own a work – which doesn't sound much, but 1000 fans at that rate would add up to a modest living wage.

    for the sake of decent (ie non-commercial, art-motivated) music, these arguments need to be approached from the other direction – in order to have good music, someone with a thousand fans and a decent work-rate should be able to survive on that income. the EFF's leftist ideas focus on the wrong beneficiary, which makes them not leftist at all.

  • I should clarify: I am personally far from convinced that voluntary collective licensing will work with file sharing, though I'm happy to learn more. It's well argued, but since 2003 we have indeed seen a lot of schemes prove to do little for working musicians.

    I didn't get into that here, partly because I have a lot more homework to do it on myself, and also because ASCAP's allegations had to do with the intent of the organizations, and there it was clearly misrepresented. At the very least, as argued above, at least this is a constructive proposal. Mass lawsuits proved not to aid anyone.

    What makes this hard, of course, is that finding policy prescriptions really isn't easy, and we're dealing with big unknowns. (Policy often does.)

    I agree, though, that the focus should be the artist. That isn't in EFF's charter. It is in ASCAP's, though. And I suppose it is in all of *our* charters as individual musicians and parts of various musical communities.

    Part of the oddness of ASCAP's letter is that I don't think we can expect the EFF to solve these problems for us. (But their letter also makes clear we may not be able to rely entirely on ASCAP, either.)

  • james

    yeah i see – and while the collection societies over here are nearly as intellectually flacid as ASCAP (though less litigious) it's really far more disappointing that EFF haven't realised that enabling underground artists to pay their rent/electricity/plugin license costs is something that benefits the consumer far more than this obsession with protecting and legitimising amoral internet users.

    and ASCAP's point, that EFF have moved the goalposts of the discussion, and altered the average lay-person's impression of the morality of the situation is actually pretty valid, no?

    i wish the independent industry (including self-released artists) had a voice – as a 'rights-holder' it makes me a bit uncomfortable to be lumped in with EMI etc in the arguments from both sides of this debate. establishing that separation in the minds of consumers might be a good first step?
    (what i mean is, i'm well aware of the ethical gap between my local huge supermarket and the non-profit collective who deliver our organic veg, and because of that i choose where i spend my money. the independent music industry hasn't really got the equivalent point across)

  • Well, no, I can't find a basis for ASCAP's point. Monitoring Internet access, de-legitimizing point-to-point tech in general (itself just a transport – the protocol, not the specific sites, I mean), using ISPs for enforcement, and trying to catch users in big legal dragnets… these all can indeed have negative impacts for legitimate users.

    And I'm not sure that public perception of morality has changed. People were pirating music the moment the technology allowed them to. If anything, there's far greater usage of online tech to purchase music and otherwise support artists than there was when the debate began. So, whatever the relative level of morality in the public, I don't see a negative shift. And I'm not sure they were buying records, prior to the Internet, out of a sense of moral obligation.

    The psychological argument you're talking about — I don't know. That assumes first that the general public wants interesting, independent music, which seems to me to be a niche. And for that niche, it's just about keeping them aware of music, not necessarily any debate over how they acquire it.

    I agree that the indie community needs a voice, though. I think first and foremost it'll be artists talking to each other about how to support themselves and – where possible – any kind of collective benefit. (That's a challenge; independent artists tend to, partly by necessity, act in self-interest.) And for listeners, well, that's talking about music, not IP. 😉

  • alexsmoke

    I think you make an excellent point here james.

    We are by default lumped in with the "music business" side of the divide, but we and EMI do not stand to benefit equally from EFF's proposals. Small labels also have precious little to gain, and they can't tour either.

    Revenue streams, even from relatively fair-minded sources like paid digital downloads, are still pathetic when compared to physical formats. It's driving a lot of small labels to the wall, which in the end is also bad for quality and diversity.

  • james

    i think you've hit a nerve there – a couple of irritating encounters with people who haven't really engaged with what the EFF say but see their EFF sticker as a 'filesharers are righteous rebels' badge have led me to a point of view far more illiberal than my wider beliefs…

  • james

    @alex – yeah totally with you about quality – it's a slightly bizarre contradiction to have mp3 shops flooded with zero-budget releases but small labels who try to do things properly, and nurture interesting music find survival hard. a few of the indies i really loved have given up in the last year, and a couple of hundred new derivative-techno mp3s on beatport every week doesn't really make up for our loss.

    but we sound like old men shouting at the sea. i think some sort of authoritarian top-down socialist imposed wealth redistibution was my solution until peter brought me down earth..

  • simulated

    Anyone know what BMI's position is on this?

  • Jmob

    The problem here is one of perception. ASCAP by and large is a collection agency. They collect royalties from performances in television and film. The whole voluntary payment scheme is a joke. What, we are to become online beggars with paypal donate buttons across the Internet? Give me a break. File sharing in and of itself does not have that much to do with ASCAP. At that point, you are talking sales. It's clear as day to me, Pay/play things like and reverberation are a scam. Even with a large audience you really are not going to see any kind of meaningful payout. No, it's tilted towards the companies that create these systems. 

    However, ASCAP's payouts ARE meaningful. If you get placed on a show or a movie you are going to get payed a meaningful amount of money.  I just dont understand how that can be percieved as a bad thing  From where I am standing, the combination of music+money+Internet= bullshit. 

    I won't disagree that this whole creative commons thing is a joke but to have the eff come in and tell us that they want to help is like a dentist Volunteering to do open heart surgery. Y

  • Blob

    well, I wouldn't go as far as saying CC licenses are a joke – at least as a principle. If you want to easily share some or all of your work to disseminate it across the web, CC could become a good option for that purpose – but it does suffer from registration and enforcement issues.

    "The whole voluntary payment scheme is a joke. What, we are to become online beggars with paypal donate buttons across the Internet?"

    That is kind of the point I try to make when I get into a discussion about this issue. Even though I believe a musician's income should be based on live performance, composing and recording should not simply be paid for with "donations" (unless your are planning to distribute them freely). This, of course, is not a very popular opinion these days.

    I also have a gut feeling (not currently based on any rational research) that voluntary collective schemes would not work very well. I also really wish I could be more enlightened and informed on these issues, because we need alternative models.

    In any case, I feel the discussion is generally becoming too polarised.
    I'm based in Europe, where the conflict between collecting societies and free culture advocates has comparatively more low-key (copyright law works differently over here).

    However, the recent "three-strikes" law passed by French government is probably not going to help. I'm expecting many European collecting societies to pick that up at any moment to try to impose even more Internet traffic monitoring rules, which will certainly create an equivalent to this current ASCAP vs EFF slugfest. And that will do no good to either citizens / consumers, or music distribution innovation, or indie artists, who, like @alexsmoke said a few comments ago, are "by default lumped in with the “music business” side of the divide".

  • Tom

    CC isn't quite what people expect from it. It articulates very well what you yourself can set out as an individual rights holder and that's very convenient. But it sometimes is described as providing some other level of legal protection… it doesn't. Creative Commons has no teeth.

    Whine {Why is live performance thought such an Eden of opportunity? Hell, most venues now charge you to play, and not every musician can rock out some Eagles at a pub every week :-)There's not that many good gigs.}

    We have to be proactive as well. I'm moving away from 'super cheap disposable download' culture and towards 'wow this is such a great object with lots included'. Less iTunes, more iPhone. The virtual is a ghetto and whether or not it's true – it's seen as where people dump their second best.

  • Jmob

    @blob sorry, that didn't come out right. I meant it was a joke in so far as the the situation with ascap. That being said, I take issue with how you think we should make a living. I don't play live. I write for television. If the world changes tomorrow and people start paying good money to hear me perform the underscore to "modern marvels" on the history channel night after night than well… You might be onto something.

    Obviously, this is not the world we live in. Music cannot be pigeonholed to one form of income. To suggest that should be the case is naive. And as the other poster stated, cc has no teeth while ASCAP does. It may not always be perfect but it helps provide a living for many. I just don't see why that's a problem.

  • I've been writing and performing music for more than 30 years. I have 6 albums out (soon to be 7) and have some radio play in small commercial stations and a fair number of college and community stations.

    The PROs (ASCAP and BMI et al) have done far more to harm perfroming songwriters in the states than help them. Everything AFAIK is based on major market commercial radio plays, extrapolated from small samples to determine who gets paid. Which means that when someone like me gets airplay, Micheal Jackson gets my 7 cents.

    I've heard it's different in Europe – that every play is logged, even in clubs.

    Top that off with the way these sharks do business – refusing to let music presenters see affiliation lists and just demanding $$, while threatening lawsuits and it's quite often that small venues skip having music at all. That costs small timers performance venues.

    Look at file sharing as the radio you don't get because you can't afford the payola. For the first time in my life, I don't depend on the gatekeepers. I "merely" have to figure out to rise above the noise.

    We're moving into a time when many more people think of themselves as artists – album releases have almost tripled since 2004 in the US – and we're figuring out different way to license our music. If we're lucky, it means that more people will make a living, while the few that make a killing by collecting other people's royalties won't anymore. But I know that the PROs have done far more bad for the entire market than good. We have to adapt and the tip jar may be future regardless. All I know is that 1000s more people have heard my music via the internet than EVER heard me on radio.

  • @Christopher, I can't speak for radio but in tv, if I have a discrepancy I try to get the cue sheets. Virtually, every time I have had a problem and have had cue sheets to back me up, ascap took care of it.

    I remember some friends of mine got placed in a pretty big picture and the paperwork got messed up. They didn't even know they could receive royalties. I introduced them to the people they needed to talk to at ascap and they took care of it.

    Maybe I'm naive but I just haven't had any negative experiences with ascap. In fact, quite the opposite.

    And yeah, Europe is a whole different ballgame. Japan too.

  • Microwave Prince

    In europe there are schemes on paper, but in practice it's different. Anyway all those "fair use", CC is a joke. Why? For instance i release 200 coppies vinyl EP and someone sample it. I can't do anything, because to go in court it's waste of money and time. Nowadays anyone sample and do whatever they want. It doesn't matter if material is copyrighted or not.

  • Blob

    I never said that live performance should be the ONLY source of revenue, but you have a point – for many artists, it's certainly not the main source. Sometimes the discussion is too centered on performing musicians (people that play in bands, the pop/rock/jazz/electronica spectrum of things), and we tend to forget about orchestral composers, film / TV scorers, or even sound designers.

  • @Christopher: ASCAP in theory do track those club plays. I don't know the exact details of how the payment system works in practice. It's obviously a balancing act. Artists naturally want payments for all of these performances and plays. But if ASCAP gets over-aggressive with enforcement, as they did when they threatened the Girl Scouts, then there will be a backlash.

    Someone's mad at them, though, as their Wikipedia page has just been defaced:
    "Their acronym quite unironically sounds very similar to the derogatory term "asshat," unsurprising as their name-appropriate conduct has made them almost universally hated."

    I will say, at least ASCAP is governed by its members. If rank and file ASCAP members decided they didn't like the direction the organization was taking, they *could* organize a new ballot of Directors.

    Not sure what you mean about Creative Commons having no teeth. CC the organization doesn't have that role. The "teeth" remains copyright law. I do think there are some issues there in terms of the vague commercial/non-commercial restriction and how enforcible or even definable that is. But I wouldn't go as far to say that the license is unenforcible.

    Of course, that's assuming that you want to enforce your license and assert your copyright after it's been violated. Let's get real: most artists don't have the resources to go to court when their rights are violated, period. And traditional copyright will be just as problematic.

    For the purposes of the original criticism, I can certainly say that many artists do collect royalties on CC-licensed works, and many big-name artists have opted for CC licenses on individual works without necessarily eroding the value of all music (and they often reserve other works for traditional copyright).

    I do think there needs to be a broader conversation about some of the details, like commercial-non-commercial. But a license – *any* license – can't have teeth. A license and enforcement of the license are two very different things.

  • Blob

    "For the purposes of the original criticism, I can certainly say that many artists do collect royalties on CC-licensed works, and many big-name artists have opted for CC licenses on individual works without necessarily eroding the value of all music (and they often reserve other works for traditional copyright)."

    Yes, certainly, I myself have a couple of tracks registered as CC – but do you think it's fair to argue that at this point CC registered work might potentially run into legal quagmires between different jurisdictions?
    Imagine, for the sake of argument, that someone samples my CC non-commercial licensed track without my permission in, say, an Asian or African country (yes, I'm being horribly euro-centric here). Let's then imagine I had the resources and I REALLY wanted to be a bad guy, and I tried to sue – but some countries simply do not recognise CC at all, and that's basically the problem with CC right now, in my view – lack of "international recognition" or equivalent legalese term.

    Then again, this is probably not the point, since "traditional" licenses probably run into this problem as well – I can imagine some countries might also consider that ASCAP doesn't have jurisdiction, for instance.

  • Blob


    PS – Before I read this CDM post, I didn't know about the Girl Scout debacle, so I found a 1196 NYTimes article about the story. I had no idea such insanity had taken place… 😛

  • @Blob: My understanding from lawyers I have asked that question is that CC wouldn't make that any harder — or easier, notably — to litigate. And since you're using those countries as examples, copyright infringement in general has proven really, really tough to enforce in that way. In other words – CC or not, good luck.

  • Greg

    This all misses quite possibly the biggest issue here.

    Why do people have to get paid to make music?

  • Greg

    If it's a silly question, perhaps you could give me a non-circular answer.

    Why does it have to be a living? There's a whole lot of amazing songs nobody who even arguably wrote got a cent for, directly or indirectly. Compare "Midnight Special" with, say, any post-1990 Michael Jackson single.

    People will write better music, probably using technology more judiciously and with more enduring subject matter, if they aren't paid to write it.

  • It's a slightly less relevant question because it's not the point of the argument between ASCAP and EFF. Whatever your opinion, their opinion is that artists deserve to be compensated. ASCAP's legislative arm mispresented EFF's position, at least according to the EFF.

    Now, "compensated" could mean any number of things, from Michael Jackson-like sales to someone selling a soundtrack for TV to someone making $50 playing locally.

  • Jmob

    @Greg ok, I'll byte (haha) if you are saying that with the pressure off of making making money through music that would somehow liberate our creative potential, well, I guess I could see that for some people. But what of the music supervisor that needs twenty minutes of music per episode of whatever show it is that he is working on? I can imagine the conversation going something like this: 

    Music supervisor (ms):
    "so hey, we have this new show. We need you to score around 20-30 minutes of music a week"

    Composer (cp): "awesome! Can't wait to get started on this thing"

    Ms: " there is one thing however. We don't want to pay you. We think you will be more more creative if you do this for free"

    Cp: "really… Well uh, I'm not sure how I can juggle a day job and score a complete episode every week. When I did get paid it was like 60 hour work weeks"

    Ms: " I know! Cool right? I know you are going to do a great job"

    Should film composers work for free as well? And speaking of software, why should software developers be any different? Perhaps they should code for free as well. And well, what about you my man? Should your boss ( forgive me, I have no idea how you make ends meet) be able to flip the switch and make paychecks an optional thing as his own description? 

    Come on dude, what you are suggesting is pure folly. And just to be clear, I give away most of my music for free online. Anyone can download it. 

  • Greg

    You're putting carts before horses and presumptions upon presumptions upon presumptions.

    I still want you to explain where people will stop making music, or movies, or computer programs, or anything conceivably creative if they don't get paid.
    Charge for your music. I don't particularly care.
    You''re still using the same argument Jack Valenti made for 25 years, and it is still demonstrably false.

  • Jmob

    @Greg with all due respect, that’s a silly question. No one has to to get paid for anything. But if it’s your living, it goes without question that you have to get paid.

  • Yes, I think this is the point where Douglas Adams, may he rest in peace, would wonder why management consultants are an essential part of the economy. 😉

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  • Jmob

    @greg I never said they would stop making music. What I am illustrating is that for the amount of time and energy that goes into making certain kinds of music, it's silly to suggest that we not earn money for our hard work. Once you have been in the trenches of tv and film music it's not even a question.

    And you are right, people will still make movies and music but it would be a lot different…. A lot different. What this comes down to is a matter of taste. You want money out of the equation to hopefully revitalize music and rely less on software. Ten years ago, I might have agreed with you on the quality of music but these days? There is some amazing music being made.

    Me? I love music software, sound design, programming and hardcore drum machine beats. And, I love getting paid for what I love to do. I guess you could say that talk about music and money is a trigger for most of us in this game.

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  • Feh

    "We’re moving into a time when many more people think of themselves as artists – album releases have almost tripled since 2004 in the US"

    I think this is the crux of the issue. Technology is making it easier for anyone to record and publish music, and the ones who fantasize about becoming superstars are whining about the increase in competition. You're going to have to deal with it and adapt, just like the photorealistic painters had to deal with the development of the camera.

    Of course, as a manufacturer of music recording technology, I'm not too dismayed by this development. 😀 But as a music listener, I'm pretty excited by it, too. I don't like the crap they overplay on the radio. The internet lets me hear awesome music from places I've never heard of, and I always send money to the good musicians in some form or other.

    And yes, people will always make music, whether they get money for it or not. Sucks to be the people who don't, but that's life. Art is something that people consume in their free time with their extra money, it's not a necessity of life. You should consider yourself lucky you can make any money at all, doing something fun that doesn't ultimately have any productive value.

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  • I am an ASCAP member, recently joined, and received ASCAP’s blast against EFF and Creative Commons. Here’s my reply, sent to ASCAP’s president.

    > At this moment, we are facing our biggest challenge ever.
    > Many forces including Creative Commons, Public Knowledge,
    > Electronic Frontier Foundation and technology companies
    > with deep pockets are mobilizing to promote “Copyleft”
    > in order to undermine our “Copyright.” They say they are
    > advocates of consumer rights, but the truth is these
    > groups simply do not want to pay for the use of our
    > music. Their mission is to spread the word that our
    > music should be free.

    I am an ASCAP member and also a supporter of Creative Commons, and a contributor and member of the Electronic Frontier Foundation.

    The above statement is false and totally misleading, and ASCAP should know better than to propagate this kind of crap. Creative Commons provides a license whereby authors and creative artists can distribute their work for free with the assurance the that license is legally solid and their work can’t be appropriated by others who would attempt to charge for it. People license their works under a Creative Commons license VOLUNTARILY. In no way does this represent an effort to circumvent existing copyrights and licenses.

    The Electronic Frontier Foundation is a legal watchdog organization, providing legal support for consumers and organizations in a digital world much as the American Civil Liberties Union provides similar services for the non-digital world. I FULLY support EFF’s work and have been a member and contributor to EFF’s efforts. If ASCAP has a legal beef with EFF, perhaps ASCAP should keep it in the courts and not go spreading lies such as these to their members.

    In my humble opinion, ASCAP owes some big time apologies. This kind of BS inclines me to sever my new relationship with ASCAP and join instead with a more honest and progressive performance rights organization.

    Needless to say, I will NOT be contributing to the ASCAP Legislative Fund for the Arts!

    Lindsay Haisley
    ASCAP member 3165030
    ASCAP publisher member 3188663

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